Volume 10 — Colorado Reports

Ti-ie present action was brought by appellee against the appellant company to recover damages for the killing of appellee’s cow by one of the company’s trains. In the-county court, appellant (defendant) filed a plea in abatement, setting up, among other things, that plaintiff had not complied with section 2571 of the General Laws, being section 2805 .of the General Statutes. The cause-was tried by a jury.

<p> Appeal from County Court, Fremont County. </p>

This is an action brought by Ora Haley against Breeze, as treasurer of Boutt county, to enjoin him from-the collection of certain taxes assessed against the property of Haley.

<p>A county, under a statute authorizingtlief ending of its floating indebtedness, by an election conducted in substantial conformity to the statute, voted to issue bonds as a means of funding such indebtedness. Held, that the plaintiff, a holder of county warrants constituting a part of such floating debt, was entitled, upon tendering his warrants, and refusal on the part of the county commissioners to issue to him bonds to the amount of such warrants, to a mandamus to compel them to do so.</p>

. Appeal from District Court, Jefferson County. Appellant was county superintendent of the schools of Jefferson county in the year 1886. He rendered to the board of county commissioners on April 5th of said year his account for services and expenditures for the months of January, February and March, amounting in the aggregate to the sum of $165.25. The county commissioners allowed upon said account the sum of $330.65, and rejected the balance.

Complaint filed June 9, 1886, as follows: “The plaintiff, complaining of the defendants, alleges: “ (1) That it is a body corporate… Held: and inasmuch as the said property was originally sold pursuant to said insufficient advertisement, and en masse instead of separately, and inasmuch as said sale was not confirmed, and inasmuch as the said sale made on the 13th day of May, 1886, on said Vorreiter judgment, was made as aforesaid upon an advertisement and notice of…

This action was brought by Schoolfield to enforce a mechanic’s lien against the Bassick Mining Company, Adams, and others. Adams filed an answer and cross-complaint in the suit, claiming a lien upon all the premises in the plaintiff’s complaint. Templeman, Holthoff, Jordi and Armstrong were intervening petitioners. The several cases were tried and determined as one suit, under the statute.

Original case in the nature of quo warranto. ■ Downer was elected district attorney of the first judicial district. At the time of his election his residence was, and ever since has been, in Boulder county, which then constituted a part of said district.

This action was brought to recover upon an account for services rendered by plaintiff, Neis, as blacksmith. Reaugh was resident engineer of the defendant company, with entire control of its construction and business at the point where plaintiff claims to have done the work in question.

This suit was brought by N. H. Clough & Co. against John Atkinson and E. P. McDonald as copartners under the firm name of “Atkinson & McDonald.” Plaintiff demanded of defendants the sum of $195.50 upon a book account for goods sold and delivered to the defendant partnership. The trial in the county court resulted in a verdict and. judgment in plaintiffs’ favor for the full amount of the demand.

Suit was begun before a justice of the peace by plaintiffs upon the account in controversy. Summons issued and was duly served. Prior to the hour named in the summons for her appearance, default and judgment were entered against defendant. On the succeeding day, plaintiffs caused a new summons to be issued by the same justice, and defendant was a second time sued, and duly served with process for the same asserted debt.

<p> Appeal from District Court, Pueblo County. </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from District Court, Pueblo County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to County Court, Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from County Court, Larimer County. </p> <p>The facts are stated in the opinion.</p>

<p>The receiver of a bank, under the authority of the proper court, sold the bank’s interest in certain mining property, partly on deferred payments due at times expressly stipulated in the agreement. The purchaser was unable to obtain possession, the property being in litigation, and in the hands of another receiver. The evidence not showing an agreement to put the purchaser into possession, held, that the court’s refusal to compel its receiver to extend the time of the deferred payments was not reviewable.</p>

<p> Appeal from County Court, Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

This was a case brought before a justice of the peace of Clear Creek county by Woodward, appellee, against the town of Idaho Springs, for damages to his real estate occasioned'by water leaking from the flume of the Sunshine Mining Company, built by it in the street of the town by leave of the town by ordinance.

This was an action brought before a justice of the peace in Clear Creek county by Kate Filteau against the town of Idaho Springs, for damages to her real estate occasioned by the water leaking from the flume of the Sunshine Mining Company, built in the street of the town of Idaho Springs by said company, by leave of the town expressed by ordinance. Kate Filteau, the plaintiff, recovered judgment for $130.

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

The plaintiff, a corporation organized under the laws of the state of New York, brought this action against Fernando 0. Taylor, one of the appellants, to determine-the rights to possession of certain mining premises, in support of an adverse claim. The action was commenced on the 6th day of March, 1882. A cost bond was filed on the 20th day of April, and the summons served on defendant on the 22d day of April, 1882.

Thomas Keese and seven others, plaintiffs, tax-payers of the city of Denver, filed a complaint to enjoin the sale of lands owned by them under an assessment for the building of a sewer, against the city of Denver and some of its officers, defendants. Judgment for the defendants, and plaintiffs appealed.

<p>It is not necessary tllat the annual appropriation ordinance or bill, required by statute of a city, specify each particular office and the exact sum to be paid the incumbent thereof.'</p>

This suit was brought before a justice of the peace under the forcible entry and detainer act. The premises sought to he recovered were not® situate within the justice’s precinct, nor was defendant a resident of such precinct. The cause of action, if any, accrued in another precinct, which had a duly-qualified and acting justice. Defendant made a special appearance, and moved' to dismiss for want of jurisdiction over the subject-matter.

Plaintiffs commenced this action against Henry Lloyd before George L. Sopris, justice of the peace, for a demand for rent due in the sum of $172, and garnishe.e process issued, and defendants in error here, Noyes, Stark & Gross, were garnished by service of the garnishee summons. They answered the garnishee process as follows: “ (1) Are you-in any manner indebted to the defendant, Henry Lloyd, either property or money, and is the same now due?

On motion to dismiss an appeal from justice’s court. On the 15th of November, 1883, judgment for $80 was rendered in a case pending before George L. Sopris, justice of the peace in Arapahoe county, against said Schofield, the defendant therein, and in favor of said Felt, the plaintiff therein. On the 23d day of November, 1883, the said Schofield filed with said justice his bond for appeal of said case to the county court, and accordingly prayed appeal thereon.

Appellees, on the 9th day of July, A. D. 1883, presented to the county commissioners of Saguache county, and asked to have allowed, the following bills for services rendered and necessaries furnished in small-pox cases in the town of Bonanza, in said county: Mrs. Alice N. Hunt, bath-tub, $15; Mrs. Anna Gray, nurse, $10; Decker Bros., drugs, etc., $35; Decker Bros., drugs, etc., $21; W. L. Taylor, guard, $17.50; W. L. Taylor, guard, $63; John M. Brown, messenger, $63; Edward…

<p>1. If the appellant writes, at the close of each instruction to which he excepts, the words “ excepted to,” there is a substantial compliance with code of Colorado, page 56, section 69, providing that “ a party excepting to the giving of the instructions * * * shall not be required to file a formal bill of exceptions, but it shall be sufficient to write at the close of each instruction to which exception is taken the words ‘excepted to,’ which shall be signed by the judge.”</p> <p>The omission of the judge to sign an instruction so excepted to cannot prejudice the rights of the appellant.</p> <p>2. Nor is the omission of the appellee to number the instructions prayed by him, and excepted to by the appellant, a fatal defect.</p> <p>3. An assignment of error upon an instruction which sets out the instruction excepted to in hcee verba is sufficient.</p> <p>4. Where the only issue made by the pleadings is as to the fact of a warranty as to the disposition of certain horses sold by the defendant to the plaintiff, and there is no plea or proof of accord and satisfaction or payment, there is no foundation for an instruction as to the verdict which the jury should render, if they should find that there had been a settlement between the parties, and it is error to give such an instruction.</p> <p>5. Where an express warranty is alleged and proved, and there is no contention at the trial as to an implied warranty, an instruction as to the effect of an implied warranty, if proven, is inapplicable to the issue, and is calculated to mislead the jury.</p> <p>6. An objection that the evidence did not support the verdict will not be inquired into on appeal, where the bill of exceptions shows affirmatively that the evidence elicited in the case is not contained therein.</p>

<p> Error to District Court, Pueblo County. </p> <p>The facts are stated in the opinion.</p>

<p>Í. Under the statute of 1877, a purchaser at a tax sale is protected against the mistakes of the assessor or other official, and the liability of the county to the purchaser cannot be made to depend upon the liability of the officer to the county. The liability of the county is created by the mistake of the officer; when created its enforcement is not made to depend upon any contingency.</p> <p>2. If a county is possibly liable to a purchaser at tax sale for failure of his title, the county commissioners may assume the defense of a suit against such purchaser and the county treasurer, to test the-title, and, in such case, the county will be liable for the costs and lawyer’s fees.</p>

This is an appeal from a decree made December 9,1882, by the district court of the second judicial district, sitting within and for the county of Arapahoe, in a proceeding instituted by appellant to condemn the lands of appellee for railroad purposes. The appellant is a body corporate ereated for the purpose of constructing and operating a railroad from Denver to the boundary line between the states of Colorado and Nebraska.

This chancery proceeding was instituted by the town of Aspen, in Pitkin county, against the above-named defendants, who are residents of the same county.

The case presented by this record is a proceeding by mandamus on part of the Aspen Town & Land Company against the mayor and board of trustees of the town of Aspen, to compel said corporate authorities to issue a deed to the plaintiff for a considerable portion of the lots and blocks comprising the town site of said town, the same being located in the county of Pitkin.

Redus was tried in the court below upon an indictment charging murder. He was convicted of murder in the second degree, and sentenced to fourteen years in the penitentiary. To reverse this judgment the present writ of error was sued out. The statutes of 1870 and 1883, referred to in the opinion, read as follows (act of 1870): “Section 1.

This case was tried in the district court upon appeal from the judgment of the county court, allowing the claim on behalf of the appellants and against the estate of the appellee’s intestate. The claim was for contribution in respect to moneys alleged to have been paid by the plaintiffs to discharge a promissory note on which they, the defendant’s intestate, and others were alleged to have been sureties.

This suit was brought before a justice of the peace against “ P. L. Oraig and W. B. Broad, partners using the firm name of Broad & Oraig,” for a certain demand alleged to be due Smith & Wilson. Service of process was secured only upon Oraig, one of the partners.

<p>Where a cause is submitted upon briefs to be filed within a time fixed by the court, and the appellant makes no attempt to comply with the order of submission,.the case will be dismissed for want of prosecution.</p>

This is a suit brought by the plaintiff in error against the defendant in error, for trespass, for unlawfully taking, conveying away, detaining and selling a milch cow, the property of the plaintiff in error, to his damage in the sum of $100.

In the year 1875, Wells & Smith, attorneys at law, instituted a suit in equity in behalf of John Norman and John Septer Fillmore, then minor heirs of John S. Fillmore, deceased, against John J. Beithman, to recover certain premises situated in the city of Denver, and also rents and profits wrongfully collected and withheld. They were employed for this purpose by the guardian of said minor heirs.

<p> Error to District Court, Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to San Juan County Court. </p> <p>The facts are stated in the opinion.</p>

On the 20th day of September, 1883, the following order was entered in the case: “Now, on this day, this cause coming on to be heard, plaintiff and defendant being present by their attorneys, J. P. Drake, Esq., attorney for plaintiff, and Patton & Urmy, attorneys for defendant; and thereupon the attorneys for the defendant filed a motion for a change of venue; and the court, after hearing the motion and affidavit of A.' Corder, Esq., read, and the argument of counsel…

This was an action by Hutchins against appellants upon a promissory note. The allegations of the complaint were as follows: “ First. That the amount involved in this action does not exceed the sum of $2,000. “ Second.

The complaint alleges that defendant on the 27th day of January, 1883, rented and leased of the plaintiff two rooms for lodgings, and agreed to pay plaintiff, in advance, the sum of $60 as rent therefor, for the month next ensuing; that defendant so leased and rented, and had the right to the possession of, said rooms, and the use and enjoyment thereof, at all times during the month ensuing, from said 2/Tth day of January, 1883; that defendant has not paid said sum of $60 or…

<p> Error to District Court, Lake County. </p> <p>The case is stated in the opinion.</p>

In 1880 Crane & Co. sued Andrews & Co. in the county court of Lake county, and obtained a judgment against them for $216.35, from which Andrews alone appealed to the district court of said county, and executed an appeal bond in the penal sum of $600, with J. J. Moynahan and S. D. Bowker as sureties.

<p> Error to San Miguel County Court. </p> <p>The facts are stated in the opinion.</p>

On November 19, 1883, Amos brought suit against Charles before a justice of the peace of Jefferson county, and on the same day a summons was issued by said justice, which on the 23d day of the same month was returned by the constable with the indorsement thereon, “Defendant not found.” At the same time, Amos filed an affidavit in attachment before the justice of the peace, alleging, among other grounds, the non-residence of Charles in Colorado, upon which a writ of…

■ ^ The complaint alleges that on or about July 9, 1878, the defendant was the owner of a body of unimproved and unoccupied land near to and adjoining the town of Alamosa, in Conejos county; that he was anxious to make said land valuable, and bring it into market for speedy sales, and to that end proposed to one A. C. Rupe that if he would cause to be built a good house and other surrounding improvements ón a certain definitely de- -• fieri bed portion and parcel of said…

<p>A reservation to the mortgagor of chattels of the right to sell the mortgaged property renders such mortgage void ab initio as to creditors and incumbrancers.</p>

This was an action brought by Mrs. Dallas against G-. A. Gribbs, upon a promissory note, for balance due thereon of about $1,500.

Bridget O’Rourke, defendant in error, who was plaintiff below, filed her complaint there on the 27th day of April, 1883, in which she alleged facts, showing ownership and possession of a certain house and lot in the city of Denver, county of Arapahoe, under the value of $2,000; arid that she had been seized and possessed thereof from the 1st day of .February, 1883; that during all that time she had been, and still remained, a householder, and head of a family, and so…

<p> Appeal from District Court, Clear Creelo County. </p> <p>The facts are stated in the opinion.</p>

This action was commenced in the county court of Arapahoe county, by appellees, Young & Savin, against the Denver Natatorium & Physical Culture Association, the Colorado Mortgage & Investment Company, James H. Jones, and appellant John Evans. The complaint was filed April 1, 1882. All the defendants were duly served with summons.

<p>Where the evidence on the trial was conflicting the judgment will not be reversed on the ground of insufficient evidence to support it.</p>

<p>1. The legal effect of a plea of tender is an unanswerable presumption of indebtedness to the extent of the tender, and when the tender is brought into court for the use of the plaintiff, that amount is considered as stricken from the complaint. If more is claimed the plaintiff proceeds for the excess of his demand above the tender only.</p> <p>3. A demurrer admits all the material facts well pleaded in the pleading to which the demurrer applies.</p> <p>3. Argumentative pleading is bad under all systems of pleading.</p> <p>4. The relation of stockholders to the corporation whose stock they hold is that of contract, and the rights and -duties of both parties grow out of contract implied in a subscription for stock, construed by the provisions of the charter or articles of incorporation.</p> <p>5. The corporation is a trustee for its stockholders and is bound to pro- ■ tect their interests.</p> <p>6. Certificates of stock are assignable and pass from hand to hand by indorsement as bills of exchange and promissory notes pass, and holders of such certificates are prima facie presumed to be bona fide owners thereof.</p> <p>7. A corporation is ordinarily justified in treating the assignee and holder of certificates of stock as the legal and equitable owner thereof.</p> <p>8. Any transfer of stock by a corporation upon its books, in the absence of the original certificate, is made at its peril, and the real owner of the stock, evidenced by such certificate, loses nothing thereby; upon stock so issued by wrong or mistake the corporation is liable to a bona fide holder thereof.</p>

<p>1. The lien of the mechanic or material-man, under the statute, begins with the commencement of the work or furnishing material under his express or implied contract with his employer, and attaches upon whatever estate the latter may have at the commencement of such work or the furnishing materials, and is superior to all after-acquired liens and any prior liens or incumbrances of which the mechanic or material-man had no actual or constructive notice.</p> <p>2. Courts do not enforce contracts between parties, the execution of which is legally .impossible.</p> <p>3. The rule of caveat emptor applies against a mechanic as well as in the case of a vendee.</p> <p>4. If a contractor proposes to erect a building or to put labor or materials on a piece of ground, it behooves him to assure himself of the fact that the person with whom he contemplates making his contract, or for whose benefit he is about to employ means or labor, has such an interest or title unincumbered as will enable him to avail himself of a valid lien.</p> <p>5. Under our system of registration, if the mechanic or material-man fails to inform himself, the law will not relieve him against the consequences of his own negligence.</p>

<p> Appeal from District Court, Clear Creek County. </p> <p>The facts are stated in the opinion.</p>

<p>Appeal from District Court, Pueblo County.</p> <p>The facts are stated in the opinion.</p>

This was an action by plaintiff, Hans Sorensen, against the defendant, for $381 damages for injury tó his crop occasioned by the destruction of the flume and lateral conveying the water-supply thereto. It appears from the evidence produced by plaintiff that in the spring of 1881 the plaintiff had a lease of three lots in the town of Greeley.

In August, 1882, the plaintiff, Cecil A. Deane, while walking along the sidewalk on Curtis street, Denver, in daylight, stepped upon the cap covering a coal hole, which tipped under his weight, allowing one leg to pass through, and causing an injury from which serious consequences followed. After suffering great pain for a considerable length of time, he lost almost completely the use of his leg for life.

Plaintiffs, Theodore W. Herr & Co., were real estate agents, doing business in the city of Denver. Defendant, William Long, was the owner of' lot 9, block 21, East Denver, with improvements thereon, and undertook to sell the same.

This action was brought by Fisher Bros, to recover from Hughes Bros, as acceptors, and from H. J. Coy as drawer thereof, the amount specified in the following instrument: “$115.09. December 6, 1882. “ Messrs. Hughes Brothers: Pay to the order of Fisher Bros., freight advanced on stone, one hundred and fifteen dollars and nine cents. Charge to account of H. J. Coy.

Eliza J. Harding was arraigned and tried on an information filed by the district attorney in the criminal court of Arapahoe county, in which information she was charged with unlawfully practicing medicine and surgery, without having received from the state board of medical examiners of the state of Colorado a certificate authorizing her to practice medicine and surgery in said state.

District Court, Fremont County. The defendant in error obtained a decree from the court below for $20,200. The plaintiffs in error, the defendants below, bring the cause to the supreme court by writ of error. The facts of the case are sufficiently stated in the opinion of the court.

This action was commenced by the appellee, Andrews, against the appellant, Stevens, to recover the sum of $155.82, borrowed money, evidenced by a due-bill executed by Stevens, and payable to Andrews on demand, dated September 26, 1881, credited with $51.50, leaving $134.32 due Andrews, as he alleges. For a second cause of action Andrews claims $5 due him for work and labor.

The complaint alleges damages done to appellee’s property, consisting of two lots with dwelling-house and other improvements thereon, abutting on a street called “Willow Lane,” in Witter’s first addition to the city of Denver, by the construction of appellant’s railroad track, and the running thereon in said street of its trains of-cars propelled by steam-engines.

<p> Appeal from Superior Court of Denver. </p>

<p> Appeal from Superior Court of Denver. </p>

<p> Appeal from Superior Court of Denver. </p>

<p>Section 30 of tlie Colorado act of March 14, 1877, providing for the formation of corporations, which provided for service of summons in suits against them, was repealed by implication by the qct of March 17, 1877, providing “ a system of procedure in civil cases in courts of justice,” section 37 establishing a new method of service.</p>

This was an action brought by appellee, F. Gf. Betts, against the appellant, the Atchison, Topeka & Santa Fe Eailroad Company, before a justice of the peace of Las Animás county, for the value of a mule which had been killed upon the railroad of appellant. From the judgment of the justice an appeal was taken to the county court, and trial was there had de novo and to a jury.

This was an action brought by Thomas Lothian against Samuel Leach and Charles Boss. The judgment below was in the plaintiff’s favor and the defendants appeal.

<p>1. Grants of estate and easements of land are, by the statute of frauds, to be evidenced by properly executed and authenticated written instruments, and, except in cases of fraud on the part of the land owner, are not to be otherwise created.</p> <p>2. The damage to support an estoppel against the owner of an estate and convert him into a trustee must be something more substantial than what would technically amount to a consideration in a contract. It must be of such a character that the person sustaining it cannot be put back into his former condition, and cannot be adequately compensated by pecuniary damages.</p> <p>3. A contract was made between several parties, among them plaintiff and defendant, by which they agreed to form a company and dig a ditch across specified lands, to be dug and sustained by the parties to the contract in proportion to the lands benefited. The company was afterwards dissolved before the ditch was dug. Held, that this agreement did not give an individual member of the company, after the dissolution of the latter, a right to dig a ditch across another individual member’s land.</p> <p>4. If it is conceded that such agreement gave such right as to lands described, it could not give the right as to lands owned by a member, but not described.</p>

<p> Appeal from Gunnison County Court. </p> <p>Action for conversion, brought by Mary E. Jacobs against Schluter & Spengel. The facts are stated in the opinion.</p>

An action brought by Jesse Harris to recover his commission as a real estate broker, claimed to have been earned by finding a purchaser for land belonging to Charles G. Buckingham, defendant.

On the 25th day of July, 1883, the defendant in error was, and had been, a bank doing a general banking business in the city of Leadville, and on that date presented to the Hon. L. M. Goddard, judge of the fifth judicial district of Colorado, its petition in the words and figures following: “In the matter of the application of the Bank of Lead-ville to the court to dissolve its corporate existence, close up the business thereof, and for the appointment of a receiver. “ To…

Appellant in his complaint alleged a copartnership between himself and defendant, formed for the purpose of buying and selling an option of the Bullion, Hidden Treasure and Cleveland mining claims; that on the 19th day of April, 1880, H. S. Rutan, Stillman P. Norton and Ebert Norton, the owners of said mining claims, made toE.

On the 27th of January, 1883, plaintiff, George O. Kennedy, while walking in the day-time upon defendant’s railroad track, was struck by the locomotive attached to a freight train and seriously injured. The train approached him from behind, and he knew nothing of its presence until struck. He was aware that his hearing was defective, but was not aware of the extent of such defect.

The complaint of J. E. Parlrison, plaintiff, alleges that the defendant, John 0. Boddiker, made his promissory note to one Charles Merrill for the sum of $100, dated October 13, 1883, payable three days after date, with interest at two per cent, per month until paid; that said Merrill on the loth day of October, 1883, indorsed said note to the plaintiff.

This was an action brought by George M. Thompson, George Parry and Daniel 0. Sindlinger in support of an •adverse claim to the ground in controversy, under the name' of the “Bristol Lode,” against J. R. Craig, who claimed the same under the name of the “Mammoth-Lode.” From the evidence it appears that Parry discovered the Bristol lode on the 4th day of August, 18S0, then put up at the point of discovery a stake marked: “Bristol Mine.

The complaint in this case, filed by the plaintiff, Donat, alleges that on the 8th of March, 1881, plaintiff and defendant entered into an agreement in writing, by which defendant leased to plaintiff, for the period of one year, part of a certain mining claim therein described; that plaintiff was put in possession thereof by the defendant company under said lease; that plaintiff complied in every particular with the terms and conditions of the lease, but that on or about…

<p> Error to Superior Court of Deliver. </p> <p>Frangís E. Ingols, plaintiff, sued George E. Plimpton et al, defendants, for rent. Judgment for defendants- and plaintiff appealed.</p>

This is an appeal from an order of the district court awarding alimony pendente lite to the appellee, pending proceedings upon her complaint for a divorce, which she filed therein November 17, 1885. The petition for alimony makes the complaint for divorce a part thereof by reference.

The plaintiff, the people of the state of Colorado, by and upon the information of L. R. Rhodes, district attorney, brought suit against James A. Fleming and others to oust the defendant Fleming from the office of mayor of the town of South Denver, and to oust the other defendants from the office of trustees of said town. Defendants demurred to the complaint, which was sustained,.and judgmeut entered dismissing the case, from which plaintiff appeals.

<p>1. While the owner of property may not commit a homicide for the purpose of protecting it against a trespasser, he is not bound to a passive submission which neither remonstrates nor resists.</p> <p>3. On indictment for homicide it appeared that defendant’s brother was the owner of a parcel of ground upon which deceased had, without his knowledge or consent, erected a shanty, and of which he was holding possession. The owner, with others, entered upon the land for the purpose either of forcibly ejecting any person that might be in possession or removing the shanty without such person’s consent, and in the controversy which followed deceased was killed by defendant. The jury were instructed, in substance, that if they should find that the defendant, in company with his brother, or soon after, entered upon the land in furtherance of the common design, and was aiding and advising him therein, and that he was aware at the time that the difficulty had arisen from such entry and design, then the killing would not be justifiable and the defendant should be found guilty. Reid error.</p>

Appellant, as relator, instituted mandamus proceedings in the court below to compel the respondent company to furnish him water for irrigation.' Respondent demurred to the alternative writ; the demurrer was sustained and judgment entered in its favor. From this judgment the present appeal was taken. The following constitutional and statutory provisions are considered or referred to in the opinion: CONSTITUTION, ART. XVI. Sec. 5.

The complaint in this action alleges, in substance, that the Denver Fire Insurance Company was a corporation organized under the laws of this state; that it had accepted, under its corporate seal, certain bills of exchange (one of them having been drawn by the plaintiff), and had executed certain promissory notes for the several sums of money, and payable to the respective parties, stated and named in said instruments; that they had been assigned to the plaintiff, and that…