Volume 1 — Colorado Law Reporter

<p> Charge of fudge Moses Hallett to the jury. </p>

<p> Ky. Law Reporter for August, 1880.) </p>

<p>Adverse holding. There can be no adverse use of one of two lots in favor of the other, while both belong to the same owner.</p> <p>Easement. A mortgager can make no contract creating an easement in the mortgaged premises effectual to bind the mortgagee or prejudicial to his title.</p> <p>Statement. Action of tort for trespass on land of the plaintiff. The material facts are as follows: The plaintiff and defendant owned two ad^ joining lots of land. The defendant used a strip of the plaintiff’s land, about four feet in width, and next adjoining his (the defendant’s) lot as a drive-way, claiming a right of way thereon, which was the trespass complained of. On 6th August, 1856, one Pendergrast owned both lots, and mortgaged the lot now owned by plaintiff to a corporation, with power of sale, and subsequently he conveyed the other lot to one Cowley, the deed purporting to convey a right of passage over said strip, four feet wide, in the plaintiff’s lot, but the mortgage contained no such provision or condition ; and the plaintiff derived his title from the mortgagees, by a sale made June 1, 1858. The writ was dated February 25, 1878. Verdict for plaintiff, and case reported.</p>

<p>Code. The remedy provided by the Code of Civil Procedure for reaching money or property of a judgment debtor in the hands of other persons is exclusive, and contains provisions for all the relief which was contemplated by the creditor’s bill.</p> <p>Trust Fund, bequeathed to an executor or trustee to apply the increase to the support of the cestui que trust, cannot be reached by proceedings supplemental to execution. It seems, however, that the surplus of such fund above the amount necessary for the support of cestui que trust may be reached by bill in equity.</p> <p>Jurisdiction is acquired over the debtor by the original action, and proceedings to compel the application of money or property in’the hands of other parties, are proceedings in the action.</p>

<p>Application for Removal of a cause from a state court to a federal court must be made before a trial of the cause.</p> <p>When Judgment has been rendered against some of the defendants, and an appeal has been taken to the Supreme Court of the state, an application on pairt of the other defendants for a removal will not be granted. The controversy is an entire thing, and it cannot be removed at all, unless it be removed as to all.</p>

<p>Suit to Compel Corporation to Account—By Whom Brought—Although as a general rule, a suit to compel the ministerial officers of a private corporation to account for a breach of official duty or misapplication of funds, should be brought in the name of the corporation, yet where it is shown that the directors of the corporation refuse to prosecute, or the corporation is still under the control of those who should be defendants in the suit, the stockholders will be permitted to bring an action in their own names, making the corporation a party defendant.</p> <p>Courts of equity will, at the instance of a stockholder, control a corporation and its officers, and restrain them from doing acts even within the scope of the corporate authority, if such acts when done would amount to a breach of their trust.</p>

<p>A Statute Explanatory of a Former Statute, while it may not affect existing rights, will from its passage be regarded as part of the law.</p> <p>The Act of 1868 authorizing counties to take stock in railroads was a continuing act, and under it the county of Pueblo was authorized to subscribe to stock of a railroad properly orgadized in 1873.</p>

<p>A Consolidated Company if properly organized can claim no higher or better right than its predecessor, and the rights of all parties are determined by the existing contract.</p> <p>The Prior Interest in a railway company to construct a telegraph for itself, is neither controlling nor determinative of the right of the railway' company to contract with other parties for the privilege of constructing telegraph lines upon its right of way.</p> <p>The Right of a Telegraph Company, as against the railroad company, does not depend in any degree upon the relation of the latter with other telegraph companies, but simply upon the contract existing between the railroad and the company itself.</p> <p>An insertion of a stipulation in the contract which provides that the business of the railroad company, and the family, private and social messages of the executive officers shall be transmitted without charge, was a misuse of the corporate property, for which the contract itself may be avoided.</p> <p>The Rescission of a Contract of this character does not imply that either party may appropriate to its own use the joint property of both, acquired under the contract, without paying therefor.</p>

<p>Equitable Right of a Bank. A bank has an equitable right analagous to the doctrine of stoppage in transitu over the credit it gives to a borrower (who becomes insolvent) for the proceeds of a note it had discounted for him.</p>

<p>Title Bonds to Mining Property, without a Consideration, are Void. The complaint was a bill for specific performance based upon a title bond executed by three of the defendants to the complainants, in pursuance of which they bound themselves' to convey three-fifths of the “Terrible Mine” to the plaintiffs, upon the payment of certain sums therein named, within a specified time. Before the expiration of the time the said three defendants had sold and conveyed the property to John H. Maugham, and he had conveyed to A. E. Reynolds. Reynolds set up in his answer that the title bond was given without consideration. The complainants excepted to this portion of Reynolds’ answer. Upon this particular exception Judge Hallett said:</p>

<p>Juror—Challenge for Cause. Is inability to speak and understand the English language necessarily a disqualifying fact ?</p> <p>The Statutory Qualifications embrace as competent jurors, “all male inhabitants of the state, over the age of twenty-one years, who are citizens of the United States, or have declared their intention to become such citizen, and who have not been convicted of felony.”</p> <p>Grounds of Challenge, prescribed in the Code, (Secs. 161, 162), do not embrace inability to speak or understand the English language. But the enumeration of certain specified grounds in the Code does not exclude the consideration of all others; as to which the question must stand as at common law, and be determined by a consideration of the duties imposed upon a juror, and the qualifications thereunto requisite.</p> <p>Knowledge of a Language, other than a person’s vernacular, is but an accomplishment, want of which argues nothing respecting mental culture. Yet, the inability of a juror, ignorant of the language in which the proceedings of the court are had, to discharge the duties of juror, unaided, is patent.</p> <p>Court may make Rules. Sec. 402 of the Code, and the inherent power of courts of original jurisdiction, authorize the establishment of rules governing practice and procedure, in reference to matters not expressly provided for by law, which includes the power to appoint an interpreter.</p> <p>That all Judicial Proceedings must be in the English language, must be taken sub modo.</p> <p>Non-English Speaking citizens are not thereby disqualified to serve as jurors; but a wise discretion would excuse such from the service, when practicable to procure a full panel who speak the English language. -</p>

<p>Practice in Supreme Court—Assignment of Errors. As indispensable in Supreme Court, as declaration or complaint in court below.</p> <p>Time of Filing. The rules of the court require the assignment of errors to be filed with the record.</p> <p>Failure to File assignment of errors cause for dismissing appeal.</p>

<p>Practice. Bill of Exceptions can only be authenticated by affidavit in cases in which the judge “neglects or refuses” to allow and sign it.</p> <p>Diligence. A litigant to whom time is allowed to prepare and tender bill of exceptions, must exercise due diligence, both in the preparation and presentation of same.</p> <p>Affidavit of Counsel, that he was informed that the judge was absent from the' district, is not evidence that the judge was so absent, even if such absence amounts to failure or refusal to allow bill.</p>

<p>Contributory Negligence. The fact of negligence is generally an inference from many facts and circumstances, and is one for the jury to pass upon and determine. Where appellant, a railroad company, constructed a narrow board footway, without railing or protection, over their track across a creek for the use of passengers, and respondent, in crossing at night, fell and was injured: Held, that there was no contributory negligence on the part of the injured party, although she had crossed the same safely during the day; nor was it necessary for her to notify the company that lights should be provided.</p> <p>Common Carriers of Passengers are required to do all that human care, vigilance, and foresight reasonably can under the circumstances, in view of the character and mode of conveyance adopted, to prevent accidents to passengers.</p>

Internal Revenue Record.) The appellees filed a bill in equity, for themselves and other creditors, against the appellant as executor of James C. Kennedy, deceased, and against the devisees of his will, praying for an account of the personal estate of the testator, a discovery of his real estate, and the application thereof to the payment of his debts.

The defendants being on trial upon an indictment, charging larceny, the district attorney offered to prove by a police officer that McMann had confessed the crime to him; but it appearing that whatever the prisoner said to the witness, was while in custody, and after threat or promise, the testimony was excluded.

<p>Criminal Practice Verdict may be received on Sunday. That record does not set forth plea not fatal defect. Amending instructions in the absence of the prisoner, not prejudicing his substantial right, not ground for reversal.</p>

<p>Demurrer must be Specific. A demurrer to “so much of the answer as sets up the special contract ” is not sufficiently specific, and will not be received. If it be a ground of demurrer at all, that statements contained in an answer are irrelevant, and have nothing to do with the matters alleged in the complaint, such statements must be pointed out specifically.</p> <p>Contract. Unreasonable provisions in, with regard to the shipment of stock on railroad, of no effect.</p>

Where land in the vicinity of valuable mineral deposits is returned as mineral in character on the township plat, clear and positive proof of its non-mineral character can alone overcome the return of the surveyor-general.

<p>Practice-Removal of Cause from the Stale Court, and Remanding same. Causes removed from state court may be remanded, on motion when the record shows a want of jurisdiction in the Federal Court. If, upon the face of the record, the Federal Court has jurisdiction, objection to trial here can be raised only by formal plea to the jurisdiction.</p> <p>That a plaintiff conveyed his interest in the property in controversy to one of his associate plaintiffs “for the purpose of conferring jurisdiction on” the Federal Court, no ground for remanding case, provided the sale was in fact made. Otherwise, if the transfer be without consideration, and the party pretending to convey still is the owner of the property. That would be collusive proceeding, and ground for remanding cause to the state Court. But this is a question of fact which must be raised by plea.</p>

<p>Practice— U. S. Circuit Court will not Review Ruling of State Court. In cause removed from the state to the Federal Court, the proceedings in the former will not be reviewed by the latter. The remedy to correct supposed error in such case is by appeal to the Supreme Court of the United States.</p> <p>Non-resident Defendant—Motion to Quash Summons on—Plea in Abatement, etc. The state court having overruled motion to quash service of summons on a non-resident defendant, and ruled that the proper method of raising the question is by answer in the nature of a plea in abatement, and such answer having been there filed, the ruling will not be reviewed in this court.</p> <p>One Brought into a State Under Process of a Court to attend upon the trial of a cause, is exempt from process in such state, while necessarily attending there in respect to such trial.</p>

<p>Insurance. A party whose life is insured for the benefit of his wife and children, or their representatives, has no such interest in the policy that he can assign it.</p>

Am. Law Register.) This was an action brought by the assignee of warehouse receipts against the warehouseman, for delivering the property stored to the assignor, after the assignment.

The cause being heard on motion of plaintiffs for temporary injunction, the court held as follows, the facts sufficiently appearing in the opinion:

<p>Negligence—Unnecessary Delay in Transporting Freight—That the Company Needed its Rolling Stock for other Purposes no Excuse for. It is the duty of a railroad company, engaged as a common carrier, to transport freight without unnecessary delay. A delay of twenty-four hours at a station on the way, is an unnecessary delay, unless excused. That the company needed its rolling stock for the purpose of conveying passengers, is not a sufficient excuse. The duty of the company is, to be prepared to execute its contracts, both to carry passengers and freight. It cannot excuse itself for failure to do the one, on the ground that it was bound to do the other, and was not able to do both.</p> <p>The Burden is on the Plaintiff, to show by a preponderance of proof, that the injury to his stock shipped, was caused by the delay in transportation—and in considering this question the jury must take cognizance of the condition of the stock when shipped, and the manner of shipment— whether over-crowded or improperly arranged in the car.</p> <p>Contributory Negligence—A Fact for the Jury. If plaintiff by his negligence materially contributed to the injury which he has sustained, he cannot recover. It is for the jury to determine whether the plaintiff, under the circumstances as shown by the proof, acted with reasonable and ordinary prudence, and whether his conduct contributed to the injury which he sustained.</p> <p>A Common Carrier cannot Relieve himself from Responsibility of his own Negligence by Contract with the Shipper. A common carrier cannot relieve himself from responsibility for his own negligence, or the negligence of his employees, by any contract that he may enter into with the shipper. A contract for shipment, in so far as it assumes to say, that the railroad company shall not be liable on account of any delay in the transportation of stock, is void—and also in so far as it requires the shipper to give notice of his claim before he unloads his stock.</p> <p>“Rules and Regulations for the Transportation of Live Stock” Contained in Printed Statement Appended to Contract, do not Bind the Shipper. A printed statement appended to the contract for shipment, containing a provision, that in case damages occur in transporting live stock, the value shall be limited to a given amount; and that blooded animals, or animals deemed especially valuable, will be carried only on special contract, and that agents are not allowed to receive and ship such animals, until a proper contract is made between the owner or consignee and the general freight agent, constitutes no part of the contract, and cannot avail as a defense. The shipper is only bound by the stipulations of the contract itself. A common carrier cannot relieve itself from responsibility by mere notice appended to or indorsed upon the contract.</p> <p>The Amount of Damages, a Question for the Jury. Rules in arriving at—Measure of. As to the amount of damages, the jury are the judges. It is their duty to consider all the evidence and all the circumstances, and arrive at a just and reasonable determination. The measure of damages (in case of injury to a horse) is not what a man might have made by using him as a racer upon the track; but the reasonable market value in cash at the place where the loss occurred—the actual loss which the plaintiff sustained by reason of the injuries resulting from the negligence of the defendant.</p>

<p>Exceptions to judgment not necessary where a case is heard on an agreed state of facts.</p> <p>Secret Liens, which treat the vendor of personal property, who has delivered possession to the purchaser as the owner, until the payment of the purchase money, can not be maintained. They are constructively fraudulent as to creditors.</p> <p>Notice of such Lien does not affect the right of creditors.</p>

<p>Purchase by one party to an agreement to make Joint Purchase, is for Joint Benefit of all. If two or more persons agree among themselves to purchase property for their joint account, and the purchase is accordingly made by one or more of them, on behalf of all, the liability of each to pay his share of the purchase money, and his right to an interest in the property cannot be controverted. So also, if two or more persons enter into a contract with another to purchase property, all matters being fully arranged in the agreement, the equal right of all vendees to proceed in the execution of the contract may be conceded. But neither one of the vendees under such contract could take the title to himself, until default by the party excluded, in some matter to which he was bound by the terms of the agreement.</p> <p>Purchase as Trustee—When Held to be. If one take unto himself a title which he has purchased with the money of another, he is a trustee for the true owner, who may rightfully follow the fund, wherever it may be miscarried.</p> <p>An Agreement to Negotiate for Purchase of Property, Gives no Right to either Party thereto. An agreement between A and B, to purchase the property of C,—the latter not being a party thereto - amounts simply to an agreement to negotiate with C for the property, and presents no feature which can affect the title. Such an agreement could give no right to either party until consummated in the purchase of the property.</p> <p>An Agent to Purchase a Particular Property for another, may Repudiate his Agency, and Purchase for himself. The case is not different if A and B be regarded as agreeing to an agency in respect to the purchase of the property. For if one who is clearly an agent for another, to purchase property, repudiate the agency and act for himself, using his own funds, he cannot be declared a trustee for his principal, although the latter may have been misled by the conduct of the former.</p> <p>Tenants in Common are Bound to Protect the Common Title: but MAY DEAL WITH EACH OTHER THE SAME AS WITH STRANGERS, TOUCHING their Respective Interests. Although tenants in common are not at liberty to assail the common title by which all hold, they may deal with each other touching their respective interests, and are at liberty to purchase from each other, the same as a stranger might purchase from any or all of them. The purchase by one co-tenant of the' interest of another will not inure to the benefit of all who retain an interest in the property.</p> <p>Individual Action of Member of a Partnership. Fidelity to the partnership is the highest duty of its members, and no member can be allowed to turn the partnership concerns to his own account; and whenever a member is found to be seeking a private advantage from partnership dealings, the courts are prompt to correct such an abuse of confidence. To invoke this principle, however, it is necessary to show that the malversation was of partnership funds or effects, otherwise no member of the partnership can complain.</p> <p>The Rule in Mining Partnerships. In mining partnerships, the firm has no right of pre-emption as to the interests of retiring parties, especially when the parties are tenants in common of the mines, themselves, and not merely partners in the business of mining. In such an association it can not be said that there is, in the collective body, a right to acquire new interests which its members are bound to respect. Each member holds his interest in his own right, with power to dispose of it as he thinks proper, and is free to deal with an associate, or with a stranger in respect to such interest. And each member is at liberty to buy from his associates and thus enlarge his interest in the whole property, without reference to the partnership relation—and such purchase will not inure to the benefit of other joint owners.</p>

The defendants being in the custody of the United States marshal, under a warrant issued by a commissioner of the United States Circuit Court, upon a charge of murder alleged to have been committed on an Indian reservation, the attorney general of the state filed a written suggestion, setting forth that the offense charged, if committed, was within the state of Colorado, and that warrants for the arrest of the accused, on the same charge, had been issued by an officer of the…

<p>Riparian Rights. Each riparian owner has the right, within his territory,,to the use of the watér as it flows—returning it to the channel of the river for the use of those below.</p> <p>Remedy for Violation of Riparian Rights. The remedy for the violation of riparian rights is by action at law; and while equity may take cognizance of the violation of these rights when conceded and established, it will not aid one, who out of mere captiousness, refuses to use water after it has been diverted from the stream by another, if he may so use it with substantially the same results as if obtained by continuous flow from the stream through his own race.</p>

<p>Pleading.—Insufficient Statements in Petition.—Demurrer. In an action for damages for injuries to the person, by a carpenter employed by a railway company, the allegation in the petition that the injury was received while riding on a “push-car or hand-car,” is not sufficient. Such petition is defective for uncertainty, and a demurrer to it will be sustained.</p> <p>Necessary Averments. In order to recover, the plaintiff must allege that cars such as he was riding in when injured, are usually supplied with brakes, or other apparatus for controlling its movements.</p> <p>Contributory Negligence. It is negligence in an employee of a railway, to ride down grade on a push-car, which he knew to be unsupplied with brakes; and for an injury received in such case he cannot recover.</p>

Legal Intel., Replevin by Huntsman et al against Stadtfeldt, for household furniture.

<p>Partnership, Joint Stock Concerns, etc.,—Members of must be Loyal to the Joint Concern, Whether Established in Business, or Negotiating. The principle which obtains amongst partners, that all members of the partnership shall be loyal to the joint concerns, extends to those who are negotiating for partnership, to the members of joint stock associations, to the directors of corporations, and others who are in the same position of trust and confidence.</p> <p>Common Undertaking. The same rule is applicable to all persons who may be engaged in a common undertaking; when any of the associates are intrusted with the interests of the association, one may not turn the joint concerns or property to his individual advantage without the consent of the others. Whatever the relations of the parties may be, if they have united for a common purpose, no one or more of the number, can without the consent of his associates, appropriate the property of all.</p> <p>Purchase by one of a Number Associated in a Common Negotiation, Though in his Individual Name, is in Trust for the Joint Benefit of All. In May, 1879, there were three rival claimants of the R. E. Lee mine. R. agreed to purchase the interest of two of the claimants, $20,000 to be paid as a forfeit and the residue within a specified time. D. furnished a part of the money to pay the forfeit. The third claimant intervened before the sale was consummated, and the original contract with the first claimant failed of consummation. R. then effected a negotiation by which the second claimant purchased the interest of the first and third—he to have a given interest. Held, that in admitting D. to an interest in his original arrangement, and receiving from him part of the money to make the first payments thereunder, R. became a trustee'for him in the further execution of the contracts; and that D. is equitably entitled to share in the results of the subsequent negotiations.</p>

<p>Mining Claims—Requisites to give Title thereto. On the public domain a miner may hold the place in which he may be working against all others having no better right. But when he asserts title to a full claim of 1,500 feet in length and 300 feet in width, he must prove a lode extending throughout the claim.</p> <p>Ejectment—What Necessary to Maintain for Mining Claims. Burden of Proof. To maintain an action of ejectment for a mining claim, the plaintiff must establish not only that he is in possession, but that,a lode had been discovered on the claim prior to the commencement of action, and that such lode so discovered extends from the discovery shaft to the ground for which “he sues. These are facts to be determined by the jury, from a preponderance of the evidence. As to them, the burden is on the plaintiff.</p> <p>Discovery of Mineral, though Made after Location, will Avail Against Strangers. Though the locators of a mining claim may not, at the time of the location and survey of the claim, have sunk their shaft to the discovery of mineral in place, yet, if they shall thereafter so sink the shaft and find the lode, they will hold as against all who had not theretofore acquired an interest in the lode—the discovery relating back to the location.</p>

<p>Equity Jurisdiction before Judgment. A creditor’s bill is something more than a bill for discovery, and it may be maintained notwithstanding the statute which enables parties to a suit to testify therein.</p> <p>A State Statute giving Remedy Supplementary to Judgment, does not Limit the Jurisdiction of Federal Courts. The statute of a State which gives a remedy for reaching the property and effects of a judgment debtor, in a proceeding supplementary to the suit in which the judgment is obtained, is a special proceeding which does not in any way affect the equity jurisdiction of the Federal Courts.</p>

<p> upon quo warranto.) </p>

On demurrer to petition. The facts, as they appear by the allegations of the petition, are as follows: The Nebraska Railway Company was a corporation organized for the purpose of constructing a road from Brownsville to Lake City. The precincts of Ohio and Falls City, in the county of Richardson, had voted to subscribe for a certain amount of the capital stock of said railway company, for the purpose of aiding the construction of said railroad.

<p>1. Writ of Error to District Court. When to be Allowed. Under section 4981, Revised Statutes of the United States, a cause cannot be removed from the district to the circuit court unless the writ is claimed and notice given within ten days, as in cases of appeal.</p> <p>2. Tri a ¿.of Issue of Fact by the Court. Exceptions. It is well settled that in the absence of a statute authorizing that mode of proceeding, no exception can be taken to any opinion of the court upon admission. or rejection of evidence, or upon any other question of law which may grow out of the evidence when no jury is empaneled.</p> <p>3. Statute Construed. The Revised Statutes U. S. do not Change the Rule. Several statutes on the subject examined and construed, and held, that the trial of issues of fact in the district courts in all cases except those in equity and admiralty, and except as otherwise provided in proceedings in bankruptcy, must be by jury.</p>

This is a bill' in equity to foreclose a mortgage executed by respondent Dempsey R. Walker to John C. Burrage, conveying certain real estate to secure the payment of a promissory note.

On motion to remand. The Iowa and Minnesota Construction Company is a corporation existing under the laws of Iowa.

Petition for habeas corpus. The petitioner was, on the 6th of September, 1878, an enlisted soldier in the army of the United States, on duty in Wyoming territory, and on that day, unlawfully assaulted and shot another soldier; for this offense he- was arrested and held in custody, under charges properly preferred, awaiting the appointment and convening of a court martial until the following March, 1879, when he was brought before a court martial, convicted and sentenced to…

On motion to remand. Action of ejectment instituted in February, 1876, by the plaintiff, C. W. Burdick, against the defendant, John Peterson, in the district court of Winneshiek county, Iowa. The defendant appeared in the state court, and pleaded the general issue and the statute of limitations. The cause was, by the state court, continued at the February term, 1876; at the June term, 1876; at the October term, 1876; at the February term, 1877, and at the June term, 1877.

<p> —Quo Warranto— </p>

<p>Stock and Fence Laws. The common law of England, in regard to a close, having never been applicable to this country, it was not the intention of the legislature, in the adoption of the common law as far as “applicable,” to adopt that part relating to fences.</p> <p>The general right of owners to allow stock to run at large, has been recognized by the legislature, and in the absence of special acts, owners of crops can only recover damages for the trespass of cattle when the domain at the time of the trespass was inclosed by good and sufficient fence.</p> <p>Judicial Notice—When not taken as to Laws. “An act concerning fences and inclosures in the state of Colorado,” providing.that it shall only be applicable in those counties where adopted by a vote of the people at a general election, the court will not take judicial knowledge of such vote. This is a fact which should be proved and preserved in the bill of exceptions, like any other fact in the case.</p>

<p>Quo Warranto—Agreed Case in Supreme Court—-Jurisdiction of Supreme Court. The repeal of the quo warranto statute (Rev. Stat., Ch. LXXIII), and the enactment of Ch. XXV, Code Civil Procedure, did not take away from the Supreme Court its original jurisdiction in quo warranto proceedings, which is conferred by the constitution, and includes an infor<mation in the nature of a quo warranto. Chapter XXVIII Civil Code, regulating agreed cases, relates only to nisi prius, and not to the Supreme Court; but the Supreme Court having original jurisdiction of the subject matter of the controversy, and the parties having submitted themselves to its jurisdiction, will entertain and determine it, though presented as an agreed state of facts.</p> <p>Vacancy in Office—Incumbent Holding Over—Appointment of Successor. B was on the 2d day of October, 1877, duly elected county judge of Laramie county, for the term of three years. At the general election held November 2, 1880, D was chosen as the successor in said office. The term of D to commence on the 2d Tuesday in January next thereafter. On the 26th of November, 1880, D having received his certificate of election, filed his oath of office and official bond, which bond was on the 8th December approved by the board of county commissioners. On the 1st day of January, 1881, D died, not having had possession of the said office: Held, that B did not hold over, and that, upon the expiration of his term, his successor having been duly elected and qualified before his death, a vacancy occurred in the said office, which the county commissioners had the right to fill by appointment.</p> <p>Eligibility Presumed, in the Absence of Facts Controverting it. The eligibility of the appointee of the county commissioners, and the regularity of the manner of his qualification, in the absence of facts tending to show the contrary, will be presumed.</p> <p>The Court Determining Rights will Enforce the Remedy. The parties having submitted themselves to the jurisdiction oj the court, it will not only determine their rights, but enforce its adjudication by the entry of an appropriate judgment.</p>

<p>1. Receiver of Railroad—Purchase of Property at Foreclosure Sale—Liability to Suit in certain Cases. Where, in a suit to foreclose a mortgage upon a. railroad, a receiver appointed by the court had been discharged, and the property, by order of the court, turned over to the purchaser, the court reserving jurisdiction of the case, for the purpose of enforcing debts and liabilities incurred by the receiver: Held, that suit to enforce unsatisfied claims, whether upon contract or tort against the receiver, which, if established, would constitute liens upon the property, are to be prosecuted against the property as proceedings in rem, upon proper notice to the purchaser, and not against the discharged receiver.</p> <p>2. Establishment and Enforcement of Lien. It is competent for the court, in such a case, to establish a lien against the property in the hands of the purchaser, and to fix a time for the payment of the sum found due, and in default of such payment to order a sale of the property. The cause is to be tried with or without a jury, according to the nature of the claim as to being legal or equitable.</p>

On the 3rd day of February, 1880, the plaintiff commenced his action in the district court of Cherokee county, Iowa.

<p>Contempt—Statutory Enumeration of Causes for, do not limit the Powers of the Courts. Such a statutory enumeration of causes, as is found in the Code, when applied to the ever-varying fácts and circumstances out of which questions of contempt arise, cannot be taken as an arbitrary measure and limit of the inherent power of a court for its own protection, and for the proper dignity of authority which is essential to the effective administration of the laws.</p> <p>Same—Same. The right of self-preservation is an inherent right in the courts. It is not derived from the legislature, and cannot be made to depend upon the legislative will. The power to punish for contempt is an incident to all courts of justice, independent of statutory provisions.</p> <p>Contempt—Cause Pending—Jurisdiction. Proceedings were had in the county court in relation to the settlement of an estate. From a determination of some issues therein, an appeal was taken to the district court, which, upon hearing, found that certain moneys, etc., of the estate were in the possession of plaintiff in error, and made an order that the same be delivered to the administrator, and be accounted for to the county court, and that this order be certified to the county court. This was done, and thereupon a citation was issued out of the county court, requiring plaintiff in error to appear therein and show cause why he should not comply with the order of the district court. Held, that the citation was proper, and there was a cause pending of which the county court had jurisdiction; that the county court had the power to issue the citation, and a failure to comply and properly respond thereto is a contempt punishable under the law.</p> <p>Contempt—Judicial Discretion. Courts possess a wide latitude for the exercise of discretion in all such cases, and the judge is himself the best qualified to determine whether the refusal to comply with the order of the court was intended as a contempt, or was, in fact, a contempt of the judicial authority.</p> <p>Contempt—Language Used in a Pleading. A pleading which directly charged the judge of a court wherein a cause was pending with colluding with the adverse party, for the purpose of “gaining an unjust and undue advantage,” implies judicial corruption and unjust oppression upon the part of the judge, and comes within the definition of disrespectful, contumacious, insolent and contemptuous language and conduct toward the court, or judge thereof, respecting his official conduct, and warranted the judge in taking cognizance of it summarily, as though the words, in- ' stead of being written and read in court, had been spoken in facie curice.</p> <p>Contempt—Facts in Petition for Change of Venue—Manner of stating them. In a petition for a change of venue, the provisions of the Code contemplate that facts shall be stated and set forth, sufficient to inform the judge of the nature and foundation of the apprehension of the petitioner. But they are not to be set out beyond what is necessary, when they involve the judicial acts of the judge; and it is never necessary to se1 out facts in themselves, or by the manner of stating them, calculated to scandalize the court, or judge thereof, or bring them into public contempt.</p> <p>Contempt—Trial for Summary. No formal trial is had in cases of contempt. Where the matter constituting an alleged contempt is brought to the knowledge of the court or judge by affidavit, and net committed in the presence of the court, the person so charged, when brought before the court, may be interrogated in order both to inform the court as to the Jruth of the matter, and to give the accused opportunity to purge the contempt, if he will or can; but the proceeding is, in all cases, summary, and without the intervention of a jury.</p> <p>Contempt—Not a Question of Intention. Contempt is not purged by an avowal that none was intended. The question is not one of intention, although where contempt is intended, this is an aggravating feature which goes to the gravamen of the offense.</p>

<p>Criminal Procedure—Permitting Jury to Separate. The weight of authorities clearly establishes the rulé that to permit a jury to 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 affected by such separation, it is not cause for reversal. The practice, however, of allowing juries in such cases to separate, though with consent of the accused, is regarded as highly improper.</p>

<p>Error to the County Court of Boulder County.)</p>

<p>Mining Location—Patent—What they Carry with them. The law provides that upon a location properly made the claimant shall have the vein upon which the location is made, and all other veins and lodes having their top or apex within the lines of the location; and not only within the body of the claim within the lines of the location, but beyond those lines as far as the vein or lode may, in its descent into the earth, pass beyond those lines and within the end lines of the location. But such vein or lode must be in place.</p> <p>Vein, Lode or Ledge—Definition of—Existence of, a Question of Fact. Vein, lode and ledge are the words used in the statute to designate a mineral deposit in rock, and are supposed to be nearly synonymous in meaning. For the purposes of this case it is sufficient to say, that a vein or lode is a body of mineral or mineral-bearing rock within defined boundaries in. the general mass of the mountain. The existence of such vein or lode is a question of fact to be found by the jury from the evidence before them.</p> <p>Ore Body “in Place”—When. If the ore body is continuous to the extent that it may maintain that character, it is in place, whether deposited in that form, or moved to its position bodily with its inclosing walls. Whether the vein is thick or thin is not material, so it is continuous. But if the territory is so broken up, jumbled and mixed, the several parts together, that there is nothing continuous, there is no lode in place.</p>

<p>Appeal from the Circuit Court of the United States for the District of Minnesota.)</p>

<p>Agent Cannot Act for Both Parties without their Consent, If an agent act for both parties in the same transaction, he cannot recover compensation from either, unless the parties knew and assented to his acting for both. Nor can an agent become the purchaser without the knowledge and assent of the seller; nor if he be employed to purchase, can he be himself the seller.</p> <p>Agent-when Entitled to Commission, though Sale not Made. The general rule is, that the duties of an agent continue, and commissions are not due until he has effected a bargain and sale by a contract which is mutually binding on the vendor and the 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 consummated, the agent may recover his commissions.</p> <p>Title Bond-only an Option till Accepted. A title bond executed by the owner of the property 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 performance of its conditions during the continuance of the option.</p> <p>Agent-Negotiations by-Commissions. When 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.</p> <p>Agent to sell, Himself becoming Purchaser, not Entitled to Commission. But if the agent, concealing from the obligee his agency to sell, induce the latter to undertake in connection with himself the purchase of the property, such concealment, being obnoxious to the rules of public policy, will avoid his commissions, whether the seller knew of the double relation or not.</p>

<p> Error to the Arapahoe County Court.) </p>

<p>Removal of Cause from State Court—Cases Arising under the Laws of the United States. Actions upon an adverse proceeding to prevent the issual of patent for a mining claim, are cases arising under the laws of the United States, and may be removed from the state to the United States courts for trial.</p>

<p>Mining Claim—Possession before Discovery of Mineral in Place. The prospector upon the public domain can hold to the extent of his claim in actual possession prior to the discovery of mineral in place ; but if he stand by and permit another to sink a shaft within his boundaries, and the latter first discovers mineral, his will be the better claim.</p>

<p>Mining Claim—Discovery Stake—Possession. The statute of Colorado, which gives sixty days after the discovery of a mining claim in which to sink a discovery shaft, and make location, does not require the discoverer to remain, during that interval, in actual personal possession by being present upon the ground. The erection of the discovery stake, with the required notice thereon, is notice to all others of the claim of the discoverer, and amounts to constructive possession, which is sufficient during the period provided by the statute.</p> <p>Assessment Work—Intimidation. That the discoverer is preyented from doing assessment work within prescribed time by intimidation on the part of an adverse claimant, is sufficient excuse, and will not deprive him of his right to locate the claim.</p>

On demurrer to the petition. This is an action to recover damages on the ground of alleged false and fraudulent representations made by the defendant, and the material facts alleged are the following: First—That the defendant was, on the 22d of November, 1875, duly appointed receiver of the property and effects of the Chicago, Clinton and Western Railroad Company, by an order made by the district court of Clinton county, Iowa, in a cause therein pending.

<p>Mortgage of Personal Property—Delivery. At common law a secret conveyance of personal property, without delivery, was fraudulent and void as to all who should deal with the vendor upon the faith of his ownership.</p> <p>Same—Statute of Iowa. The statute of Iowa provides that “no sale or mortgage of personal property, where the vendor or mortgagor retains actual possession thereof, is valid against existing creditors or subsequent purchasers without notice,” unless the instrument is executed and recorded as conveyances of real estate are required to be executed and recorded. The ruling of the Supreme Court of Iowa, that a mortgage of personal property, when recorded, is good as against a creditor of the mortgagor who becomes such after the execution and before the recording of the instrument, being a decision upon a question of the construction of a state statute,is a rule of decision for this court; but if it were an open question, this statute would be construed as merely declaratory of the common law rule above stated.</p> <p>Same—Dealing with the Mortgaged Property by Mortgagor as if it were his own. Independently of thestatute the law is, that where the mortgagor of a stock of goods remains in possession, and continues to sell, dispose of and deal with the property as if it were his own, the mortgage not being recorded, the same is void as against a creditor of the mortgagor who becomes such without notice of the mortgage. This being a question of general law, this court is bound by the decisions of the Supreme Court of the United States upon the subject.</p>

<p>1. County—Right of to Sue in Federal Court Of another State. An organized county in the state of Ioifa, having the right to sue and be sued, etc., under the laws of that state, may commence and maintain a suit in this court to recover property, or its value, of which it has been wrongfully deprived.</p> <p>2. Money Deposited with an Individual as Indemnity—when Recovered back. Money deposited with an individual for a specific purpose, to wit: To indemnify him against loss or liability on an appearance bond in a criminal case, can be recovered back after the liability has ceased on such bond, and such a deposit can in no sense be regarded as a payment by the county.</p>

<p>i' Taxes on Property in Transit through the State. A state cannot levy a tax upon property in transit to other states or countries. Such property has no situs in the state in the proper legal sense of that word.</p> <p>2. Same—Property In Commercial Transit. Where a party purchased corn from various parties, caused it to be removed to the railway and there to be put in cribs temporarily, to await transportation, and with the purpose on his part to have it carried beyond the state: Held, that it was in commercial transit, and not taxable by the state. But there must be a purpose to ship immediately, or as soon as transportation can be conveniently obtained, followed up by actual shipment in a reasonable time.</p> <p>3. Same—Cribbing of Corn. With the qualification above stated, the cribbing of corn may be treated as a thing done from necessity or for convenience in the course of transportation.</p>

<p>Reward for Apprehension of Criminals—Offer by County Officials. An offer of a reward for the apprehension and conviction of the parties guilty of robbing a county treasury, signed by order of the board of supervisors, by the chairman thereof, is not the act of the individual member of the board for which they are individually and personally liable, -but is an act done by them in their official capacity only.</p> <p>Same—Offer without Authority under Mistake of Law. Where such an offer of reward was made by the board of supervisors, without authority, and acted upon by the plaintiffs, all parties supposing the board had such authority, the fact that they had in law no authority, does not make them personally liable.</p>

<p> Ejectment.) </p> <p>Mining Claim—Defective Location Certificate may be Amended —Paper Title. When there is conflicting evidence touching the facts necessary to make valid the original location of a mining claim, the paper title of grantees claiming under the original locator will go to the jury. A location certificate which is fatally defective, in omitting reference to natural object or permanent monument, may go to the jury in connection with an amended certificate correcting such defect.</p> <p>Practice—Amendment at the Hearing. Plaintiff having declared for the entire property, it was developed on the trial that in consequence of a defective deed, he had title to only two-thirds of the claim: Held, that plaintiff could not, on this declaration, recover for two-thirds, and that the person holding title to the other third of the claim might not, without his consent, be joined as party plaintiff, yet plaintiff might amend his complaint so as to demand but two-thirds.</p> <p>Mining Claim—Prerequisites to Location. Under the statutes, Federal and state, no location of a mining claim shall be made until the discovery of a vein or lode within the limits of the claim; and a discovery shaft must be sunk thereon to the depth of at least ten feet. The mineral or ore so discovered must be in position—in the form of a lode—and not in a broken and fragmentary condition, intermingled wiib slide and debris on the surface. Discovery of ore after location, in a different part of the claim, will not avail.</p> <p>The Burden. Is on the plaintiff to establish the fact that ore was so found in his discovery shaft, and that the same lode is continuous to the ground in controversy.</p> <p>Evidence, what shall be of Prior Location. Proof of the date of plaintiff’s location, the others not being shown, and the fact that plaintiff’s location is excepted from defendant’s patents, will raise a presumption that plaintiff’s location was first made.</p> <p>The Top or Apex, on a Junior Discovery—Senior Location on the “ Dip” will hold. Ordinarily the owner of a mining claim in which is found the top or apex of a lode, may follow the vein within or without his side lines on its “ dip ” to any depth ; yet if the same vein has been previously discovered and located on the “dip,” such discovery will prevail against a junior discovery, though located on the apex of the vein.</p>

<p> Appeal from the Arapahoe District Court) </p>

<p>1. Estoppel—Former Judgment—Parties and Privies. Both parties and privies are concluded and estopped by a judgment; but no one is estopped who is not privy to the judgment in such a sense that he may continue the litigation in so far as to have his right to make motions, offer evidence, cross-examine witnesses, or take an appeal.</p> <p>2. Same—Contributing Money to Carry on Suit. A party who contributes money to carry on a litigation in which he is personally interested, under a contract with a party to the record, is privy to his action within the meaning of the rule above stated.</p> <p>3. Same—Test Case. Where a number of persons interested in resisting the validity of the same patent, agree to raise a common fund for the purpose of defending a case in which one of their number is sued, and where they raise such fund and defend such suit, they are all parties, and bound by the result.</p>

Bill in equity, brought to set aside a decree in favor of respondents, establishing a mechanic’s lien upon the Burlington and Southwestern Railway, for $39,763.26, heretofore rendered in this court.