Volume 1 — Colorado Reports

<p>Appeal Boot, may be amended. On appeal to the district court from the judgment of a justice of the peace, if the appeal bond be adjudged insufficient, the appellant may file' an amended bond, and time should be allowed him for that purpose.</p>

<p> Error to District Court, Arapahoe County. </p>

Assumpsit before a justice of the peace, and appeal to district court. Motion by appellee to dismiss, because of defective appeal bond, and cross-motion by appellant for leave to file a sufficient bond. The district court refused to allow the amendment and dismissed the appeal.

<p> Error to District Qourt of Gilpin Qounty. </p>

<p>Default cannot be taken while demurrer is pending. It is error to enter a judgment hy default against a defendant who has a demurrer on file which has not been disposed of.</p>

<p>Judgment wpon, demurrer not final. A judgment sustaining a demurrer is not final.</p> <p>Writ oe Error will not lie from interlocutory judgment. An appeal or writ of error will not lie from an interlocutory judgment.</p>

<p> Appeal from District Court, Arapahoe County. </p>

<p>Appeal from District Court, Arapahoe County.</p>

<p>Appeal from District Court, Gilpin County.</p>

<p> Appeal from District Qourt, Arapahoe Qounty. </p>

At the trial G. E. Guinn testified on behalf of the plaintiff, that on 9th of September, 1865, he sold and delivered to plaintiff seven head of beef cattle, one of which was a blue roan steer about four years old, which would weigh twelve hundred pounds gross, and six hundred pounds net, worth about $100.

At the trial below counsel for appellant asked for an instruction to the jury which, the court declined to give, but no exception was taken to the ruling of the court.

<p>Bill of exceptions — when necessary. A motion for a new trial, and a j motion to vacate a judgment, and affidavits in support thereof should be preserved in the record by bill of exceptions.</p> <p>Sheriff’s return — amendment of. A sheriff may amend his return to a summons by leave of the district court, after the record of the cause has been removed into this court.</p> <p>Practice — affidavits wregulaaiy made. Affidavits sworn to before the attorney of the party making them should not be received.</p>

<p>Error to District Court, Gilpin County.</p>

Davis obtained judgment against Cass in the probate court of Arapahoe county, and the latter appealed to the district court, where the appeal was dismissed. The action of the district court was assigned for error.

At the trial Thomas Maxwell testified that the plaintiff worked for defendant, at $45 per month, from November 10, 1865, to January 8, 1866. William Thompson testified to the same facts, whereupon plaintiff rested.

<p>Bill of exceptions—when neccesstwy. The copy of a note attached to a declaration and inserted in the transcript of the record by the clerk is no part of the record. It should be embodied in a bill of exceptions.</p> <p>Pbesuhftion in mpport of judgment. This court will presume that the evidence in the court below was sufficient to support the declaration, unless the contrary appear.</p>

<p>Construction on contract — interest on promissory note. Upon a note payable in thirty days, “ with ten per cent interest per month,” interest was allowed at the ■ rate specified, until maturity, and, after maturity, a* the rate of ten per cent per annum.</p>

<p>Error to Probate Court, Jefferson County.</p>

<p>Practice in chancery — MU to enforce vendor’s Ken — decree. A contract for tie sale of land was made, iut the land was not conveyed. Upon hill filed by the vendor to enforce a lien for the purchase-money, it was error to decree a sale of the land.</p> <p>The proper practice in such case is to require the vendee to pay the money due upon the contract within a specified time, or in default thereof that he he foreclosed of all equity of redemption in the premises.</p>

Indictment for murder upon which the prisoner was found guilty. The counties of Weld and Douglas were attached to the county of Arapahoe for judicial purposes. Previous to the trial in the court below, the prisoner moved for a change of venue, upon a petition setting up that the inhabitants of Arapahoe county were prejudiced against him, but no mention of the counties of Douglas and Weld was made in this petition.

<p>Instructions mustie written. Instructions to tie jury must ie written, and it is error to give tiem orally.</p> <p>Indictment. Surplusage. An indictment for assault witi intent to murder, in wiici tie word " feloniously ” is unnecessarily used, is good.</p>

<p>Practice in lien cases. Under the Mechanics’ Lien Act of 1864 (3d Sess. 102), all creditors interested in the premises to he charged may have their claims adjusted in one suit.</p> <p>The better practice for creditors, who seek to establish a lien in a pending suit, is to file a bill in the nature of a cross-bill setting forth, the facts respecting the lien in the same way as if the bill were original, and making the debtor and all other parties to the suit defendants therein.</p> <p>In whatever way creditors, who are defendants in the bill, are allowed to assert their demands, they must observe the same strictness in pleading that is required of the party who institutes the suit.</p> <p>If a defendant creditor sets up a lien in his answer, an opportunity should be afforded the debtor and all other parties to the suit to resist his demand.</p> <p>If the debtor and the other parties fail to answer his allegations within the time fixed by the court, there should be an order taking the answer as confessed, and the subsequent proceedings should be the same as upon a bill.</p> <p>Answers insufficient. The answers in this case are insufficient to support the decree in not showing, 1st. The time when the contracts were made; 2d. The kind of labor performed; 3d. The quantity of materials furnished; and they contain no prayer for relief.</p> <p>Answer without oath. It may be doubtful whether complainants can deprive defendants of the benefit of their oaths in this proceeding. But if the oath is waived and the answer is put in without oath, there is no ground for complaint.</p> <p>Although the sufficiency of the bill was not questioned, the decree was wholly reversed, in order that the district court might have full control of the cause.</p>

<p>Practice—Appearance cures defective summons. Defendants who appear and move a continuance of the canse waive defects in the summons.</p> <p>Practice — Damages must be assessed by jwy in certain cases. In an action of trespass to recover damages for diverting water from an irrigating ditch, if the defendants are defaulted, the damages must be assessed by a jury.</p>

<p>Error to District Court, Arapahoe County.</p>

<p> Error to District Court, Gilpin County. </p>

The action was assumpsit upon the following instrument: “ $600. Tour months after date, for value received, we jointly aud severally promise to pay J. E. Barber, or order, six hundred dollars. October 3d, 1863. William S. Rockwell.

Dependants in error sued Strope in the district court of Jefferson county, and declared specially upon a failure to return certain cattle, and added the common counts. Upon the trial below, Strope offered in evidence certain orders and receipts for cattle, signed by one or both of the defendants in error. The evidence given on behalf of defendants in error in the court below was not embodied in the bill of exceptions.

Action.on the case to recover the value of a horse. There was evidence to the effect that appellee kept a livery stable in Denver, and that appellant hired a team from him to be driven to Box Elder, a distance of nineteen miles from Denver, and return. That appellant put William T. Short-ridge in charge of the team, who drove it to Living Springs, which was much farther from Denver than Box Elder.

The act of 1861, section 8 (1 Sess. 70), provides that the board of county commissioners may grant licenses to keep saloons, hotels, public houses or groceries upon conditions named, and section 12 defines a grocery to be a place where spirituous or vinous liquors are retailed by less quantities than one quart. Section 2 of the act of 1862 (2 Sess. 78) provides a penalty for carrying on the business named without such license.

<p>Appeal from District Court, Arapahoe County.</p> <p>Upon motion to dismiss the appeal,</p>

Mr. S. E. Browhe, for Orman and Jewett, presented a transcript of the record and moved that the writ of error be made a supersedeas. The errors assigned referred to the evidence given at the trial below, and this evidence was contained in a bill of exceptions filed in vacation. There was no order of court authorizing the bill to be filed in vacation pursuant to the statute. 4 Sess. 92.

Upoh motion to dismiss the appeals. This was an information, in the nature of a quo warranto, against appellants for having usurped and intruded into the corporate offices of the city of Central. Separate appeals were prayed by the defendants below, and the appeals were allowed upon the defendants giving bonds in sums that were specified, but nothing was prescribed as to the conditions of such bonds.

<p>Practice — appeajg—when prayed for. An appeal from a district court to tliis court must be prayed for •within three days after judgment is rendered.</p>

Replevin by appellees against appellant before a justice of peace, and appeal to the district court. In the latter court, the j ury returned the following: “We the j ury in the above-entitled cause find for plaintiff and assess the damages at $10 (ten dollars).” The court rendered judgment upon this verdict in favor of the plaintiffs below, for possession of the property, and for the damages and costs.

The instructions given at the trial, which are referred to in the opinion of the court, are as follows : “1st. That the only matter in dispute in this case is the ownership of the property in question. 2d. That fraud can never be presumed; that fraud must not only be alleged in the pleadings in specific terms, but it must be proved, and the jury are instructed that there is no allegation of fraud in any of the pleadings that make up the issue to be tried in this case. 5th.

<p>Abatement plea in attachment cases: The plea traversing the facts set forth in an affidavit for attachment is a plea in abatement.</p> <p>Judgment upon 'such plea. Under the act of 1861 (1 Sess. 204) as amended hy the act of 1864 (3 Sess. 43), if issue of fact joined upon such plea he found for the plaintiff, the judgment is quod recuperet.</p>

<p>Practice—error may he assigned on agreed ease. In a case lieard on an agreed statement of facts, it is not necessary to move for a new trial in the court below:</p> <p>Or to preserve the statement of facts in the record by bill of exceptions :</p> <p>Or to except to the judgment of the court below:</p> <p>Construction of revenue law of 1864. As to contracts made after the law of June 30,1864 (13 Stat. at Large) was passed, the law will presume that the two and one-half per centum, mentioned in section 103 of that act, is included in the rate specified in the contract, and a carrier of goods for hire cannot recover the tax in addition to the contract price.</p>

<p>Pleadings—must he in the English language. Pleadings in probate courts must be in tie English language.</p>

Section 28 of the act of 1867 (6 Sess. 81) is as follows : That£ An act creating a lien in favor of mechanics and others,’ approved March 11, 1864, and all other acts or parts of acts inconsistent with, or in conflict with, this act, be and the same are hereby repealed; but nothing contained in this section shall be so construed as to affect any proceeding now pending in any of the courts of this territory under the provisions of the act hereby repealed.” This act was…

<p>Judicial Notice — lams of Kansas Territory. If the laws of the late territory of Kansas, relating to the descent of real estate, were at any time in force in this territory, they are to be judicially noticed, and need not be • proved at the trial.</p> <p>Kansas Tebritoby, laws of, relating to descent of real estate. In November, 1860, there were three statutes in Kansas relating to the descent of real estate. By the first, the widow had one-half the real estate of her deceased husband, the other half going to the children of the marriage and of the husband. By the second, she had one-half in value of the realty to be set apart to her under the direction of the court. By the third, she was endowed of the third part of all the lands whereof her husband was seized, of an estate of inheritance during coverture. She was required to elect between these acts within six months after the death of her husband.</p> <p>Election—effect of widow’s faUure to mahe. In ejectment by a widow claiming as heir to her deceased husband’s estate, under the first of the acts mentioned, it did not appear that she had declared her election to take nnder that statute -within the time prescribed. Held, that she could not recover.</p>

An agreed case was submitted to the district court as follows: “ Previous to April term, A. D. 1867, of said court two writs of attachment were issued in favor of Woodbury & Co. and John Tierney, respectively, against the Mammoth Gold Mining Go. of Colorado, both returnable and returned to said term, and both levied upon certain real estate of said corporation.

At tlie trial, J. W. Mosby testified on bebalf of tlie plaintiff, that the plaintiff demanded the property from the defendant, at Boulder, before the commencement of the suit; the defendant had the mule in his possession at that time; the mule belonged to plaintiff; the demand was made the day before this suit was commenced. On cross-examination, the witness testified that plaintiff had possession of the mule and used it in 1865 ; the mnle left in January or February, 1865.

The plaintiff in error was indicted for the murder of Win. Hamblin, and the jury found him guilty. At the trial the evidence was as follows : John Y. Glendenin testified: In February last I was called by Sheriff Grimes to attend a coroner’s inquest upon the body of William Hamblin.

■ First count in tke declaration was indebitatus assumpsit. . “For certain quartz lode mining claims, lode claims, gulch, claims, quartz mill claims, water mill claims, mill claims, water power, water privilege, flumes, buildings, stamp mills, water mills, tools and machinery, more particularly described as follows, to wit: Mining claims number (1) one, (5) five and the undivided half of number (6) six, on the Fisk lode, east from discovery.

‘ The statute (Rev. Stat. 172), so far as it relates to the subject considered, is as follows: “ Seo. 28. The board of commissioners of their respective counties shall, at the expense of the county, * * * * provide suitable books and stationery for the use of each of the county .officers of their county.”

<p>Error to Probate Court, Las Animas County.</p>

<p>Error to Probate Court, Jefferson County.</p>

<p>Appeal from District Court, Arapahoe County.</p>

<p>Appeal from District Court, Arapahoe County.</p>

<p>Error to District Court, Qilpin County.</p>

<p>Survivor — may sue alone upon joint demand. The right of a survivor to sue without joining with the representative of his deceased co-ohligee is not limited to cases of partnership.</p> <p>Action—causes of that may he joined. Demands due to 'a plaintiff in his own right and as survivor of another, may he joined.</p> <p>Demurrer too la/rge. Whether a demurrer is general or special, if it go to the whole declaration and there he one good count, it must he overruled.</p>

The information was filed by Craig in the probate court of Huerfano county and thence removed to Pueblo county by change of venue.

<p>Error to District Court, Pueblo County.</p>

<p> Error to Arapahoe District Court. </p> <p>UpoN motion to vacate order allowing supersedeas and to dismiss the writ of error.</p>

<p>Error to District Court, Arapahoe County.</p> <p>Upoh motion to dismiss the writ of error.</p>

This was an action of trespass against appellant and others, to recover damages for an assault upon appellee, and for making a loud noise and disturbance in and about appellee’s dwelling-house, at various times. There was evidence tending to prove that appellee was severely beaten upon one occasion by appellant, and 'others of the defendants below. The jury returned a verdict in appellee’s favor for $2,500 damages. .

<p>Error to Probate Court, Arapahoe County.</p>

<p>Jtjrisdictioit of district and probate courts. District and probate courts, within tbe limits prescribed to the latter, are of concurrent jurisdiction.</p> <p>Certiorari will not lie from a district to a probate court.</p>

Jones brought replevin against Carothers for two horse mules, one set double harness, one large double wagon; each of said mules branded T on the left shoulder, and each about eight years old; one dark brown color, the other a lightish bay color, known as the Tucker mules. .

Assumpsit on a due bill for $365.36. Plea general issue, under which defendant offered evidence of want of consideration, was rejected.

Appellee filed bis bill to foreclose a mortgage given by appellant to Jacob B. Carpenter. He alleged tbat tbe mortgage was given to secure a note for $980, dated March 5, 1867, payable six months after date at the Colorado National Bank to Jacob B. Carpenter or order, that on the 24th of July, 1867, Jacob B. Carpenter assigned the note and mortgage to him.

■ At the trial, George F. Wanless testified: That he was agent for the plaintiff below, and authorized to make advances to one Goff, who occupied plaintiff’s farm ; that he took a mortgage from Goff to the plaintiff on one-half of Goff’s crop, to secure such advances ; that, on going to the plaintiff’s farm one day, he found the defendant below removing the grain ; that he told defendant of the mortgage to plaintiff, and claimed the grain and forbid the removal of it; that…

<p>Regulations by telegraph company respecting their business. Telegraph companies may make reasonable regulations concerning their business, but cannot by such rules relieve themselves from responsibility for the negligence of their servants.</p> <p>Regulation not applicable. That the plaintiff did not cause a message to be repeated as required by a regulation of the company is no defense to an action for a failure to deliver the message after it was received at the office to which it was addressed.</p> <p>Measure op damages in action for non-delwery of telegram. In an action against a telegraph company to recover damages for the non-delivery of a telegram, in which the plaintififerequested his agents at Nebraska City to “ ship oil soon possible,” the plaintiff cannot recover the profits which he might have made on the oil if the message had been delivered and the oil sent in due time.</p> <p>In such action the plaintiff may recover the money paid by him for transmitting the message, the advance in the price of freight, and his expenses incurred by reason of the failure of the defendant to fulfill the contract.</p>

Trespass de bonis asportatis against Isidore H. Kastor, William Z. Cozens and appellant.

<p>Appeal from District Court, Gilpin County.</p>

<p>Evidence must support the allegation. In an action of trespass quarre da/usum, if tie locus in quo be described in the declaration, the evidence must bé confined to the place named.</p> <p>Tbespass qua/i'e clausum. JSvidenee of possession. In trespass quarre cla/usum, if the plaintiff does not show title, he must show that he was in possession of the locus in quo at the time of the alleged injury.</p>

<p>Practice —judgment when declaration not op, file. The court cannot proceed to judgment in an action at law without a declaration on file in the cause.</p> <p>Costs mil not he allowed to party in fault. Where the .error complained of was occasioned hy the negligent act of the attorney for plaintiff in error costs will not he allowed. • \</p>

<p>Practice — declaration must be filed before judgment. It is error to take judgment without a declaration on file in the cause.</p>

<p>Pbactice as to Mil of pa/rticulaffs. If the declaration contain a special count on a promissory note, and the common counts, and the plaintiff stipulate that he will at the trial rely upon the promissory note only, it is not necessary to file a bill of particulars.</p> <p>Pbactice as to filing copy of instrument sued on. If a copy of the instrument on which the action is founded is filed with the declaration, and the declaration is amended, it is not necessary to file another copy with such amendment.</p>

<p>Error to Probate Court, Arapahoe County.</p>

<p> Appeal from Probate Court, Arapahoe County. </p>

The declaration contained the common counts for work and labor and the money counts. At the trial plaintiff read the deposition of Anna Lemon, who testified in substance, that in March, 1869, in New York city, the defendant entered into a contract with the plaintiff, by which she employed the plaintiff to go to Denver and work for her at the rate of $50 per month for the term of one year; also that defendant agreed to pay plaintiff’s traveling expenses in going to Denver.

<p>Agents—what signature mil bind principal. If an agent sign a bill of exchange in this form, “ T. R. T., agent for S. T.,” and there is nothing in the body of the bill evincing an intention to bind the principal, the agent shall be regarded as the drawer of the bill.</p> <p>Evidence — to explain the agent’s signature. In such case parol evidence cannot be received to show that the agent intended to bind his principal.</p>

<p> Error to District Court, Jefferson County. </p>

<p>Diminution on record — will not be noticed if error appem'. A bill of exceptions in tlie record was not questioned, but it was alleged that another bill of exceptions remained in tlie court below. Error appearing in the bill of exceptions contained in the transcript on file a suggestion of diminution of the record will not be noticed.</p> <p>Depositions — taken without notice. Unless notice of the time and place of taking depositions be given to the opposite party, they cannot be read upon the trial of the cause.</p>

<p> Error to Probate Court, Fremont County. </p>

<p>Error to District Court, Arapahoe County.</p>

Trespass by the vendees of merchandise against creditors of the vendor, who had taken the goods in attachment and the sheriff who levied the writ. The pleadings are sufficiently stated in the opinion of the court.

The indictment was entitled, “The district court of the United States of America, within and for the first judicial district of Colorado territory, of the term of June, in the year of our Lord one thousand eight hundred and seventy.

At the trial the evidence was, in substance, as follows: John I).

<p>Replevin in detinet — demand and refusal. In replevin against one who has acquired the property replevied in good faith, it is necessary to prove a demand before suit brought or something equivalent to it.</p> <p>Evidence — acts and declarations of plaintiff not admissible in his frnor. An instruction to the jury that a demand may be inferred from the actions, conduct and conversation of the parties is erroneous.</p>

. Action of debt upon an ordinance of the city of Central, which provides that if auy person shall sell or give away any intoxicating or fermented liquors without license, in quantities less than one quart, without first obtaining a. license therefor, he shall for each offense forfeit and pay to the city a sum of not less than $25, nor more than $50. ■' This ordinance is based upon section 20 of the charter 61 the city (3 Sess. 245),' which is as follows : ‘c To license,…

<p> Appeal from District Court, Clear Creelc County. </p>

The bill was filed by the city of Denver, as trustee for the use of common schools, against Omer O. Kent, probate judge, and a large number of persons, who, it was alleged, had obtained title to lots in the city of Denver. The several acts of congress and of the legislative assembly, relating to the matter of town sites, were referred to in the bill.

Petition for mandamus. The proceeding was against the chief justice, and Beleord and Wells, JJ., were not agreed upon the principal point, and therefore the writ was denied.

<p>Continuance — affidavit must set out material facts. If the facts set out in an affidavit for continuance are not competent in defense under the state of the pleadings, the continuance should be denied.</p> <p>In an action on a promissory note, one of the defendants moved for continuance upon the ground, that an absent witness would testify that the words "president” and “ secretary ” had been cut from the signatures to the note. These facts were not material except to show that the note was executed on behalf of a corporation, and was not the note of the defendants. The execution of the note was not denied by jilea, verified by affidavit, and therefore the evidence was not admissible, and the motion for continuance was properly overruled.</p> <p>Pkomissoky notes—all a/re negotiable, Under our statute (Rev. Stat. ch. 1084), all promissory notes and instruments for the payment of money are negotiable, whether so expressed or not, and a note which does not contain the words “ or order,” is negotiable in the same manner as if it did contain those words.</p> <p>Pleading and fkooe —ra/t'iance in description of promissory note. A promissory note expressed to be given for cash borrowed may be described in the declaration as given for. value received.</p>

<p>Appeal from District Court, Jefferson County.</p>

<p>Appeal from District Court, Arapahoe County.</p>

<p>Practice—assigning errors. Errors should he assigned with such particularity as to give information of the objections to the record upon which the plaintiff intends to rely.</p> <p>Practice in cases of mechanic’s lien. In cases arising under the act relating to mechanic’s liens (Rev. Stat., cli. 54, 427) the chancery practice is to be observed.</p> <p>Practice—evidence to support bill confessed. Upon bill confessed, the court may proceed to a decree, with or without evidence, to support the bill, and this rule is applicable to lien cases.</p> <p>Interest on dememd secured by lien. A, debtor may agree to pay interest on a demand secured by mechanic’s lien as well as upon any other, and, whatever its effect among creditors, the debtor cannot object to pay the interest.</p> <p>Pleading and proof—decree must not exceed demand in bill. A decree cannot be entered for more than is claimed in the bill.</p> <p>Service by publication — what evidence sufficient. Where the decree recites this there was notice by publication,-and the record is not complete, the decree will not be reversed because the certificate of publication is not found in the record.</p> <p>Time to redeem — discretionary. Where the court has allowed ninety days before sale in which the premises may be redeemed, the decree will not bo disturbed on that account.</p>

<p>Continuance to obtain testimony of absent witnesses. A party seeking a continuance to obtain tbe testimony of absent witnesses must, in his affidavit, set forth the facts to be proven with such particularity that the opposite party may, if he see fit, admit them and proceed to trial.</p> <p>Action upon a promissory note; defense, that note was given for the carriage of certain goods which were damaged in transitu through the negligence and carelessness of the carrier. Affidavit for continuance to obtain testimony of absent witnesses did not set forth to what extent the goods were injured,'nor that the defendant could show, by these or other witnesses, the amount of the damage occasioned by the alleged negligence of the plaintiff, nor what the amount of this damage was. Held, that the continuance was properly denied.</p> <p>The party seeking a continuance ought to make it appear affirmatively to the court, not only that, upon a possible or supposable state of facts, the testimony may become important, but that, upon the facts as they are, it is and will be so.</p> <p>Continuance — diligence in obtaining depositions. Where the issues were made up in February, 1868, and application for continuance in June, 1869, and the defendant made no effort to obtain the testimony of absent witnesses until some three months before the sitting of the court, there was not sufficient diligence.</p> <p>The matter of diligence in obtaining testimony discussed.</p> <p>Pbactice—ground of objection to testimony should be stated. If the nature of an objection to testimony is such that, by the production of further testimony, the evidence objected to is susceptible of being made admissible, the particular ground of objection must be stated, and, if it is not stated, a court of review ought to regard the evidence as properly admitted.</p> <p>In an action upon a promissory note against a woman, it appeared that she was married previous to the execution of the note, and it did not appear that the note was executed in or about the sole trade or business of defendant, or in relation to her separate estate; and it was urged in this court that, upon these facts, a presumption arises that the marriage existed at the time of the execution of the note, and that the burden of showing that the note was given in relation -to the separate business or estate rested upon the plaintiff. These objections, not having been made in the court below, cannot be urged here.</p> <p>Evidence op paeol assignment in action by one to use of others. In an action upon a promissory note, brought by one for the use of others, it is not necessary at the trial to prove a parol assignment of the note to the persons to whose use the suit is prosecuted.</p>

<p> Appeal from District Court, Gilpin County. </p>

<p>Costs—not allowed when amount due has been tendered before suit. Where the jury find that, before suit brought, the amount found to be due the plaintiff •was tendered to him, he cannot recover costs.</p>

At the trial Alonzo Huxley testified: That he was present at a conversation between the defendant and Mahar, at what is now the place of business of Strickler and Mahar, formerly Lincoln & Strickler. The conversation was in relation to a bill of goods. He, the defendant, admitted the buying of $473 worth of goods on his personal account.

<p>CoHTnuJANCE to obtain testimony of absent mtness. Where a witness departs from tlie territory without tlie knowledge of tire party desiring Ms testimony witMn a few hours after the commencement of suit, tlie failure to serve Mm with subpoena cannot be regarded as negligence.</p> <p>Where process was served July 10th, and motion for continuance was made 17th August, following, and it was alleged that negotiations for settling the matter in controversy had been carried on in the interval with reasonable hope of success, the cause should have been continued to enable the defendant to take the deposition of an absent witness.</p>

The plaintiffs brought replevin to recover a melodeon, describing themselves in the writ and declaration as “Trustees of the Colored Zion Baptist Church of Denver.” A general demurrer to the declaration was sustained in the court below.

<p> Error to Probate Court, Las Animas County. </p>

Assumpsit on a promissory note by Ida Martin against Parker B. Cbeney, Wm. IsT. Shephard and Jno. Good. G.ood pleaded the general issue, upon which there was a trial and verdict for plaintiff, which was set aside by the court. Afterward the court allowed the plaintiff to amend the precipe writ and narr., by increasing the amount of damages, and thereupon Good- asked leave to plead to the declaration as amended, which was refused by the court.

Uhlaweul detainer against appellant to recover the possession of certain premises alleged to have been let to him for one month, which term had expired.

<p>Error to Probate Court, Clear Creek County.</p>

<p>Error to District Court, Arapahoe County.</p> <p>Upow motion to dismiss the writ of error.</p>

The first plea of defendant Peddie was non est factum, verified by the oath of the defendant.

Error' to Frótate Court, LaTce County The record of the court below consisted of certified copies of the papers filed in that court, together with some informal minutes of the proceedings of the court.

<p>Error to Probate Court, Arapahoe County.</p>

The indictment was in the common-law form for murder. At the trial, James Whitsell testified: That an altercation occurred between the prisoner and the deceased, Elija Williams, at a saloon in Denver, on the evening of the 15th of July, in which harsh words were used but no blows were struck; the prisoner went away and returned after an absence of half or three quarters of an hour with a pistol; that prisoner said to deceased, “you d-dblack s—nofa b-ch, I am ready for you…

<p>Practice—mnending record after judgment—upon whom to serve notice. Where an order allowing a bill of exceptions to be filed in vacation was omitted from the record, notice of an application to amend the record in that particular may be served upon the attorneys who appeared for the opposing party at the trial of the cause.</p> <p>Amendment oe record ata subsequent term. Where an order allowing a bill of exceptions to be filed in vacation was omitted from the record by mistake of the clerk, the court may, at a subsequent term, allow the record to be amended by inserting such order nunc pro turna.</p>

The action was ejectment, and the cause was heard upon an agreed statement of facts, as follows: 1st. That the lots mentioned in the declaration in this suit are within, and a part of, the land entered by James Hall, probate judge, etc., under an act'of congress, entitled “An act for the relief of the citizens of Denver, in the territory of Colorado,” approved May 28, 1864. 2d. That said land so entered was duly patented by the United States to the said James Hall, probate…

The action was brought before a justice^of the peace, and thence appealed to the district court.

Assumpsit for work, labor and services rendered. At the trial, the plaintiff, E. A. Keser, testified that plaintiffs were real estate agents, and that Glines, one of the defendants, applied to him to sell a brick house and lots, on which the same was located, at the price of' $7,000 ; that there was nothing said as to the commission to be charged for making such sale ; that the customary charge was five per cent up to $3,000, and three per cent on all sums above $3,000 ;…

There was neither process nor pleading in the court below; the parties filed a paper as follows: This agreement, made and entered into this 15th day of October, A. D. 1871, by and between the Central City Water Company and E. L. Salisbury, Job Y. Kimber, Erasmus Grarrott, Lawrence Miley, Robert W. Mead,-Borham, William Fuller, Henry W. Lake, mill owners on North Clear creek, Witnesseth: That, whereas, there is a dispute pending between said company and said mill owners, as…

The complainant alleged in Ms bill, that, on the 17th of February, 1862, he entered into a contract with William Gilpin, defendant, for the sale of certain land granted to the heirs of Luis Maria Baca, by the act of congress entitled “An act to confirm certain private land claims in the territory of New Mexico,” approved June 21,1860 (12 Stat. at Large, 72).

<p> Appeal from District Court, Arapahoe Oounty. </p>

Jones recovered judgment against Andre and Haskins ; both defendants appealed, and day was given to perfect the appeal, by bond, with security. Within the time limited Andre filed his bond, with surety, but his co-defendant did not join therein, and the condition of the bond recited an appeal by Andre only.

Plaintiee in error suggested diminution of the record on the affidavit of Charles C. Post, Esq., who appeared for the defendant in the court below, now plaintiff in error, and' who deposed to facts tending to show that a bill of the exceptions reserved by the defendant upon the trial in the court below had been prepared by him and allowed, and signed by the chief justice who presided at that trial, and had been afterward filed in the office of the clerk of the district court.

Upon motion for supersedeas. Lutteell brought replevin against Paul in the Jefferson district court, and upon the writ of replevin the property was taken by the sheriff and delivered to him. At the last term of this court a judgment theretofore given in the district court was reversed, and the cause was remanded for a new trial.

<p>Error to Probate Court, Arapahoe County.</p>

<p>Error to District Court, Gilpin County.</p>

The sheriff’s return to the writ of attachment was as folfows: “ I have duly executed this writ by levying on seven hundred and fifty-five head of Texas cattle, branded seventy-one.

<p>Appeal from District Court, Arapahoe County.</p>

The prisoner having been found guilty upon an indictment for murder, at the January term, 1872, of the Arapahoe district court, moved for a new trial. Judgment upon this motion was reserved until the next succeeding term of the court, and upon motion of the prisoner’s counsel, the district attorney consenting, certain questions arising upon this motion were directed to be argued in the supreme court at this term.

Suit commenced by attachment to the June term, 1870; amount specified in the affidavit $5,563.50. Cause of action in the affidavit, for telegraph poles and labor and material furnished by the plaintiffs to defendant. The declaration contained the common counts for work and labor, for telegraph poles, goods, wares and merchandise, for money paid, laid out and expended, and a count upon an account stated; the damages were laid at $8,000.

At tbe trial, M. B. Hays testified: ‘ ‘ Tbat be, as agent of defendant, employed tbe plaintiff in spring, 1867, at $60 per month, and tbat plaintiff worked for defendant about a year; tbat tbe work of plaintiff was to take care of tbe team of James E. Lyon & Co., and to saw wood for tbe bouse and office, and there was due defendant on tbe 15th of January, 1868, tbe sum of $490; 'that be, tbe witness, was tbe agent for defendant, and for James E. Lyon & Co.; tbat tbe team was…

<p>Practice in cases of criminal abortion. What is for the consideration of the jury. Upon indictment, under section 42, Criminal Code (Rev. Stat. 202), for administering a noxious or destructive substance or liquid to a woman pregnant witb child, with intent to produce miscarriage, whether the substance or liquid is noxious or destructive is a question of fact for the jury.</p> <p>Indictment for criminal abortion ■— description of drug. In such case it is not necessary to set out in the indictment the kind of drug or liquid admin istered.</p> <p>Evidence as to drug or liquid administered. And if the drug or liquid administered is described in the indictment, it is not necessary that the proof should correspond with the allegation.</p> <p>Evidence as to effect of the potion. Nor is it necessary that miscarriage should be produced. If the noxious substance or liquid is administered with intent to produce miscarriage, the crime is complete.</p> <p>Evidence as to power of potion to produce intended result. Nor is it necessary that the noxious substance or liquid administered should be poisonous, as the term is commonly understood, or that it should be capable of producing miscarriage.</p> <p>If the substance administered is unwholesome, and may probably occasion injury or derangement of the system to a woman pregnant with child, it is noxious within the meaning of the statute.</p> <p>Practice — changing form of instruction. The refusal to give a proper instruction cannot be assigned for error, when the court gives other instructions embracing tbe correct principle embraced in tbe instruction asked.</p> <p>Evidence of confession—whether sufficient to establish guilt. Upon indictment for administering drugs to a woman pregnant with child, with intent to produce miscarriage, confessions of the prisoner to the effect that he gave certain drugs to the woman named in the indictment, and that the effect of such drugs was to make the woman sick, may be sufficient to establish guilt, there being other evidence to prove the fact of pregnancy, and it appearing that about the time of the alleged offense the prisoner inquired of a physician, and of other persons, to ascertain what kind of drug would produce miscarriage.</p>

It appeared in evidence that the plaintiff, with others, was employed by one Rice, to work on the Kansas Pacific Railway. Some of the men employed by Rice, distrusting his ability to pay, had an interview with Col. Greenwood, an engineer of the company, who told them to go on and complete the work, and the company would pay; that the Kansas Pacific Railway Company would not see any laboring man come short of his pay.

Appealffrom District Court, Jefferson County. The declaration contained a count for money loaned; a count for goods sold and delivered; a count for money had and received by defendant; a count for money paid, laid out and expended; a count for interest, and a count on an account stated.

■ William A. Wise and Anna Wise sued out a writ of error to the district court of Arapahoe county, to bring up the record of a decree in a cause wherein Franz A. Brocker was-complainant, and the said William and Anna were respondents. Amelia L. Brocker was summoned as executrix of the last will and testament, and sole devisee of the estate of' Franz A. Brocker. Messrs.

Yuhkee brought au action of trespass on the case against Nichols, for diverting water from an irrigating ditch leading from Bear Creek to the plaintiff’s farm. It appeared that the ditch was constructed in the spring of the year 1871, by the plaintiff, the defendant and one John Bell, under an agreement that they would share equally in the water conveyed thereby, such water to be used in irrigating the lands of the several parties respectively.