Volume 10 — Colorado Court of Appeals Reports

<p>1. Replevin — Suit on Bond.</p> <p>In a replevin suit the replevin bond was conditioned that the plaintiff should return the property if the return should be adjudged or pay whatever its value might be found to be by the judgment and should prosecute his action with effect. No judgment was rendered for the return of the property to defendant, nor finding the value of the property, but the case was dismissed at plaintiff’s cost. The failure by plaintiff to prosecute his suit with effect was a breach of the conditions of the replevin bond and the obligee may recover against the obligors in the bond whatever damages he may have sustained to the amount of the penalty.</p> <p>2. Exceptions.</p> <p>Where trial was to the court and no exception was saved to the-findings or the entry of judgment in the bill of exceptions the question, of the sufficiency of the evidence cannot be considered on appeal'.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Pbactice — Evidence.</p> <p>A case must be reversed if evidence has been wrongfully admitted or if it lias been wrongfully refused, unless it clearly appears that the testimony admitted could not have been prejudicial, or that which was rejected was of no importance to the party against whom the ruling was made.</p> <p>2. Evidence — Notice—Ratification.</p> <p>Where a president of a corporation makes a contract apparently within his authority, it is legitimate testimony to prove that he told the members of the directory what lie had done, and that those direct- , ors when so informed approved of the act. If with this knowledge, no action was taken to interfere with the contract, and the parties proceeded to its execution and completed it, it brings the case within the range of the law of ratification.</p> <p>3. Instructions.</p> <p>An instruction which states to the jury that they may find any fact proven which they think rightfully and reasonably inferable from the evidence, is an inaccurate expression of the rule. The inference must of necessity flow from the fact and be a legitimate inference under the principles which govern the introduction of testimony. It is not every inference which the jury may think dedueible from the facts which may he taken as the basis of their verdict.</p>

<p>1. Gamino Contbact.</p> <p>A promissory note the consideration for which, is money or property won by gaming, or money or property loaned for the purpose of gaming, is utterly void and of no effect. And this is true although the instrument may be in the hands of an innocent purchaser for value.</p> <p>2. Same — Estoppel.</p> <p>Where the maker of a note, void because given for a gambling debt, consented that the payee might hypothecate the note as collateral security for borrowed money, and it was so hypothecated to an innocent party, but the innocent party knew nothing about the maker having consented to the hypothecation, the maker was not estopped from pleading the statute as a defense to the note. To constitute an estoppel, by conduct, the innocent party must have been misled by the conduct, or induced to act upon the representation or concealment. The innocent party not knowing that the maker had consented to the hypothecation could not have been misled thereby.</p> <p>3. Estoppel by Silence.</p> <p>The general rule is that one is estopped from alleging the truth, when his silence has been the inducement to action by another party, which would result in loss but for the estoppel. The true test is whether or not the circumstances are such as to impose upon one in equity and good conscience the duty to speak. If a person is present at the time of the transaction he must speak or he will be estopped. If absent, his silence or other conduct must, at'least, be of a nature to have an obvious and direct tendency to cause the omission or step taken.</p> <p>á. Same — Public Inteeest.</p> <p>In the application of the doctrine of equitable estoppel there is a distinction between cases in which the instrument sought to be avoided was one tainted with legal or moral turpitude and expressly 'declared by law to be “ utterly void and of no effect,” and one, which though voidable was free from such taint or legal prohibition. In the former case it requires stronger and more positive proof to sustain the plea of estoppel than in the latter. In the latter case the parties to the transaction are alone concerned, in the former the state or public has an interest. The statute declares the note in question to be “ utterly void and of no effect” whether in the hands of an innocent purchaser for value or otherwise; not from any regard for tlie defendant or his rights, but for the interests of the public. In tho opinion of the lawmaking power the consideration was subversive of public morals and against public policy. Under the evidence defendant was not estopped from pleading the statute as a defense to the note.</p> <p>5. Gaming Contract — Evasion of Statute.</p> <p>The keeper of a gambling house cannot avoid the effect of the statute which makes all contracts based upon a consideration of money lost at gaming, or money borrowed for gaming purposes, by the pretense that “ chips” only were sold or redeemed.</p> <p>6. Same.</p> <p>The fact that checks were originally given for the gambling indebtedness, and afterwards were taken up and a note given in their stead, does not change the effect of the statute. The note was simply a substituted evidence of the same indebtedness, and based on the same consideration.</p>

<p>1. Immaterial Error.</p> <p>Rulings touching the order of the introduction of evidence are not reviewable, if the record shows that the party complaining was not prejudiced thereby.</p> <p>2. Same.</p> <p>The defendant was called as a witness for the plaintiff, but the trial court refused to allow a full cross-examination, upon the ground that the evidence might be put in upon the defense. He was after-wards called on his own behalf and testified at length. Held that the error, if any, in requiring the testimony to be put in upon direct examination, was not sufficient to work a reversal.</p> <p>3. Presumptions.</p> <p>A state of things once shown to exist is presumed to continue.</p> <p>4. Admissions in Pleadings.</p> <p>The complaint alleged the drawing of a bill by the plaintiff, its acceptance by the defendant and non-payment. The answer admitted that the bill was drawn and accepted as alleged and that it was not paid. Held that the ownership of the acceptance was not involved in the allegations or admissions.</p> <p>5. Acceptances, Surrender of.</p> <p>Upon payment of an acceptance, the acceptor is entitled to possession of the bill.</p> <p>6. Same — Judgment.</p> <p>Judgment should not be entered against the acceptor of a bill until it is delivered up and filed in the cause. But leave is given the appellee to prevent a reversal for this error by delivering the bill to the clerk for cancellation and filing with the papers of the case.</p>

<p>1. Garnishment Proceedings — Costs.</p> <p>In a justice of the peace court, a proceeding in garnishment in aid of an attachment does not become a separate action, so as to relieve the justice-of the peace and constable from the limit in amount of costs that may be charged in a civil cause until after the garnishee has failed to deliver the property of defendant in his hands or pay the money owing by him to the defendant, to the constable, or fails to appear for examination or to give the constable a memorandum or statement of the amount of his indebtedness to defendant and things in action in his possession belonging to defendant, and the justice of the peace under sec. 2020 Gen. Stats. (Mills’ Ann. Stats, sec. 2720) has rendered judgment against défendant and issued summons against such garnishee as provided in said section. Upon the issuance of such summons the garnishment proceeding becomes a separate and distinct action and the costs thereafter accruing are chargeable as in a separate cause of action, but costs accruing in the garnishment proceeding prior to the issuance of such summons are chargeable in the original action and are subject to the limitation of justice and constable fees to be charged in one case.</p> <p>2. Practice — Pleading.</p> <p>If the complaint fails to state a cause of action, this objection may be raised for the first time in the appellate court.</p>

<p>1. Practice — Judgment non Obstante Veredicto.</p> <p>A motion for judgment non obstante veredicto may not be made by a defendant nor can he obtain relief of analogous character otherwise than by motion in arrest of judgment.</p> <p>2. Same.</p> <p>The motion in question does not attack the sufficiency of the complaint and cannot be considered as a motion in arrest of judgment. The motion in arrest reaches only those defects which are apparent on tlie face of the record and are not cured by failure to demur, and the evidence is no part of the record for such motion.</p> <p>3. Practice — New Trial.</p> <p>In a suit for damages for personal injuries, if the court refuses to non-suit the plaintiff or to direct a verdict for the defendant, the case must go to the jury and the issues be determined by them. If their conclusions are unsatisfactory, or the court deems them unsupported by the evidence, it has full power to set the verdict aside and grant a new trial, but the issues must be submitted to another jury. There is no way known to the practice by which the defects or deficiencies in the case made by the proof can be reached, except by motion for new trial.</p> <p>4. Same — Judgment on Verdict.</p> <p>The appellate court has no authority to enter judgments on verdicts, and even though the lower court may have entered an erroneous judgment, the error can be corrected only after it has been reversed and sent back for further proceedings. The trial court was evidently of opinion that plaintiff was not entitled to recover and therefore granted defendant’s motion for judgment non obstante, and this is not a case in which the appellate court should direct the lower court to enter judgment on the verdict even if it has such power.</p>

<p> Error to the County Court of La Plata County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Jubisdictiob' of Justice of the Peace.</p> <p>The jurisdiction of a justice of the peace is determined by the amount sued for, and not the amount that might have been sued for. A creditor may remit a part of his claim and sue for the balance and if the remittance bring the amount within the jurisdiction of a justice of the peace he may sue in such court.</p> <p>2. Pbomissoby Note — Ibdobsemebt—Guababty.</p> <p>A promissory note made payable to the order of the maker was indorsed on the back as follows: “Pay to the order of to whom, for value received, we or either of us, hereby guarantee the payment of the within note at maturity, or any time thereafter, with interest at the rate of 10 per cent, per annum from maturity until paid, waiving demand, notice of non-payment and protest.” Signed by the payee and several others. Since the payee was also the maker of the note its signature to the contract of guaranty was meaningless and did not alter the liability it assumed in executing the note, and the use of the words of transfer evidences the intention of the payee and explains its signature below, and as the intention to indorse is evidenced by the language used, held that the signature of the payee on the back of the instrument amounts to an indorsement in blank, and the plaintiff having possession of the note was prima facie its legal owner.</p> <p>3. Pbomissoby Noth — Attobstby’s Ebb.</p> <p>Where a promissory note stipulates for an attorney’s fee in a certain amount to be taxed as costs in case suit is brought on the note, the holder may waive part of the fee so stipulated and claim the balance. It yvas proper to include the attorney’s fee in the judgment on the note. A separate action could not be maintained for the attorney’s fee.</p>

<p>1. Practice — Demurrer.</p> <p>By answering a complaint after the overruling of a demurrer, objection to the order overruling the demurrer is waived.</p> <p>2. Estoppel — Misrepresentations.</p> <p>A defense which attempts to set up an equitable estoppel on the grounds of deceit and misrepresentations practiced on defendant, but which fails to show that plaintiff was in any way connected with or responsible for the misrepresentations was properly stricken out.</p> <p>3. Appeal Bond — Date.</p> <p>That an appeal bond was not dated is immaterial. The only material date was the date of its delivery to the clerk that was indorsed on the bond.</p> <p>4. Same — Prooe oe Delivery.</p> <p>The official indorsement of the clerk upon an appeal bond is sufficient proof of its delivery to the clerk, the only proper person to receive it, and the production of the bond at the trial by plaintiff was prima facie evidence of a proper delivery to plaintiff.</p> <p>5. Same.</p> <p>Where a party executed an appeal bond as president of the principal company, and also signed the bond individually as surety, the fact that he signed it as surety with the understanding and belief that others were to sign as sureties before it was filed and it was filed without being signed by such other sureties, is no defense to a suit against the party thus signing as surety.</p> <p>6. Same.</p> <p>The fact that the party executing an appeal bond as president of the principal company, was subsequent to the execution of the bond determined by the courts not to be the president de jure of the corporation, was no defense to a suit on the bond against the sureties. The bond having been voluntarily executed and having accomplished its purpose the sureties were estopped to deny that the party executing for the principal company had authority to sign its name. Moreover by the provisions of the civil code of 18T7 under which this appeal bond was filed it was not necessary for the appellant corporation to sign the bond.</p>

<p>1. Motion for Nonsuit.</p> <p>Error of the trial court in refusing a motion for nonsuit at close of plaintiff’s testimony is cured by defendant introducing evidence that tends to supply the deficiency in plaintiff’s testimony.</p> <p>2. Railroad Company — Killing Animal Prima Facie Negligence.</p> <p>By statute (Session Laws, 1893, p. 406) the killing or injuring of animals by a railroad company is prima facie evidence of the negligence of the company and of its liability for the value of such animal so killed, unless it shows affirmatively by proof that the killing was not caused by negligence, or unless it shows that its road was inclosed with a good and lawful fence.</p> <p>3. Evidence.</p> <p>The admission of incompetent evidence over objection should not reverse a case when it is clear such evidence could have worked no prejudice.</p> <p>4. Same.</p> <p>In a suit against a railroad company for killing an animal a letter from the claim agent of the company to the owner was admissible in evidence as tending to prove acknowledgment of liability.</p>

<p> Appeal from the District Court of Rio Grande County. </p>

<p>1. Mandamus.</p> <p>Mandamus does not lie to control the exercise of discretionary powers with which public officers may be invested.</p> <p>2. Same.</p> <p>Where any tribunal in which discretionary power is lodged has exercised its discretion so far as necessary in a particular case and has given its conclusions upon the facts before it, the performance of what remains to be done, being merely ministerial, may be compelled by mandamus.</p> <p>3. Denver Charter — Paving Petition — Competitive Bidding.</p> <p>The fact that'a paving petition under the Denver charter designated, as the material to be used;’- a particular kind which was owned and controlled by a single person, does not necessarily exclude competitive bids for the work.</p> <p>4. Same — Boabd op Public Wobks.</p> <p>By the charter of Denver, where the cost must be paid by the abutting owners, no paving can be ordered unless a petition for the purpose by them is first presented. The material desired to be used is to be determined and designated by the petitioners. If the material proposed be unfit, the board having in charge the interests of the public may reject the proposal; but, with authority to pass upon the question whether the material proposed could be properly used for paving, its discretion ends.</p>

<p> Error to the District Court of Pueblo County. </p>

<p>1. Practice — Bill or Exceptions.</p> <p>The fact that the court by order fixes a time within which a bill of exceptions may be presented does not abridge the party’s right to-present and have signed his bill of exceptions at any time during the term at which the case was tried. And although the time fixed by order of court may have expired, the party still had a right to present and have signed his bill at any time before the term at which the case was tried had expired.</p> <p>2. Same.</p> <p>Pacts examined and held sufficient to show absolute change of possession of personal property under a chattel mortgage.</p>

<p> Appeal from the District Court of Montrose County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. COBPOBATIONS — AGENTS.</p> <p>Where the directors of a corporation meet and authorize one of their members to take entire charge of the company’s business, it was not necessary that a record should have been made of the appointment. The authority given by a corporation to its agent may be shown by parol, and the authority of the agent was not dependent upon the record of the action of the board.</p> <p>2. Same — Ostensible Agent.</p> <p>Where a party had exercised general control and management of the business of a corporation with the knowledge and acquiescence of its officers it was immaterial whether he had been actually appointed as agent for the corporation, so far as his dealings with other parties were concerned. They were justified in assuming that he had actual authority and the corporation was liable to third parties for the act of such agent within the general scope of the business of the corporation.</p> <p>3. Pbactice — Pleading.</p> <p>An objection that no reply was filed to defendant’s answer, cannot be raised for the first time on appeal, when the trial of the case was conducted in all respects as if a reply had beeu filed.</p> <p>4. Assignments — Considebation.</p> <p>In a suit by the assignee of a claim the consideration for the assignment is immaterial to the issue.</p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p> Appeal from the County Court of Mineral County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Moetgages — Extension of Time of Payment.</p> <p>The extension of the time of payment of a debt secured by mortgage on real estate, does not of itself work a surrender or foreclosure of the mortgage security. An agreement for such extension is a novation of the debt as respects its maturity, but it can only modify the original conditions of the mortgage to the same extent. All other conditions including those by which the maturity of the principal debt might be accelerated remain unchanged.</p> <p>2. Same.</p> <p>Where a note secured by mortgage on real estate provided for the payment of interest semiannually, and the mortgage was conditioned that in default of payment of any instalment of interest when due the cestui que trust might at his option declare the principal debt due, and the time for payment of the principal debt was extended upon the express condition that interest should be payable semiannually according to the original terms of the note and mortgage, such extension was subject to the condition of the mortgage, and upon default in payment of interest, the cestui que trust could declare the principal debt due notwithstanding such agreement of extension. And the fact that the dates for the payment of semiannual interest were changed by paying all interest up to the time when the extension was granted does not defeat the application of this principle.</p> <p>3. Same — Election to Deolabe Debt Due.</p> <p>The election of a cestui que trust to declare the principal debt due upon default of condition of mortgage, is sufficiently declared by the statement to that effect in the public notice of sale.</p> <p>4. Same — Teustee Attobney foe Cestui Que Tbust.</p> <p>Where the trustee in a deed of trust is the agent and attorney for the cestui que trust, his action should be scrutinized with great care, but the mere fact that the trustee is the agent and attorney for one of the parties is not of itself sufficient to set aside or invalidate his acts. It must further appear that there was an abuse of his trust and a resulting injury to the party complaining..</p> <p>5. Same — Election—Reasonable. Time.</p> <p>What constitutes a reasonable time within which a cestui que trust may elect to declare the mortgage debt due for condition broken by default in payment of interest, must depend upon the circumstances of each particular case. In this case four months was held not unreasonable.</p> <p>6. Tbustee’s Sale — Inadequate Pbice.</p> <p>A trustee’s sale will not be set aside merely on account of inadequacy of price unless the difference between tlie value of the property and the price that it brought is such as to shock the judgment and conscience of the court.</p> <p>7. Evidence — Codex Pbesumed to Act only on Competent Evidence.</p> <p>In trials to the court the rule as to the admission of improper testimony is not so rigid as when the trial is to a jury. In a proceeding in equity the judge is presumed to have been controlled in his conclusion by such testimony only as was competent and material.</p>

<p> Error to the District Court of Gunnison County. </p>

<p>1. Practice.</p> <p>An objection that a petition for certiorari was verified before the attorney of record of petitioner, will not be considered wh.en raised for the first time in the argument on appeal.</p> <p>2. Certiorari — Negligence in Failing to Appeal.</p> <p>A petition for certiorari that alleged that petitioner a defendant in a justice court did not understand the English language, that he was confused by frequent continuances of the case by plaintiff, that he did not know to what day the last continuance was taken, that his attorney without his knowledge abandoned his case, that immediately after he heard of the judgment against him and before he had time to appeal from it, he was unexpectedly called away from the state on important business that demanded immediate attention and was unable to return until it was to.b late to appeal, and which sets forth a good defense to the action, shows sufficient grounds for writ, and acquits the petitioner of negligence' in- not appearing at the trial and in not appealing from the judgment;.</p>

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

<p> jError to the District Court of Arapahoe County. </p>

<p> Error to the District Court of Larimer County. </p>

<p>1. ■ Taxes — Illegality—Collection—Injunction.</p> <p>Courts.of equity will not enjoin the collection of a tax solely on the ground of its illegality, or the threatened sale of property. 'It must be shown that not only would the plaintiff be without an adequate remedy at law, but that the enforcement of the tax would produce irreparable injury, or lead to multiplicity of suits, or bring a cloud upon his title.</p> <p>2. Tax Sale — Cloud on Title.</p> <p>A cloud upon title does not arise from a tax sale until the purchaser of the tax title has received and recorded a deed.</p> <p>3. Office — Title to Office — Quo Wabbanto.</p> <p>The title to an office can only be attacked by proceedings in quo warranto as provided in chapter 27, civil code.</p> <p>4. Taxes — Injunction.</p> <p>Before a party is.entitled to ask that the collection of part of his tax be ■ enjoined, his complaint should show a tender of the other portion of the tax.</p>

<p> Appeal from the District Oourt of Arapahoe Qounty. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Error to the District Court of Lake County. </p> <p>This was an action instituted by defendants in error for foreclosure of a mechanic’s lien upon the property of the Holden Smelting and Refining Company.</p> <p>In October, 1890, John M. Maxwell as trustee for the owners of United States mineral survey, No. 158, in California mining district, Lake county, Colorado, executed to Henry H. Norton a written lease for a slag dump situate upon said survey “together with the free right upon said survey and egress over, across and upon said United States survey No. 158, as the same may be necessary for the purpose of working said slag dump, and removing therefrom the material of which said slag dump is composed, and also five acres of the surface of said survey No. 158, for the purpose of erecting such buildings and machinery thereon as may be necessary for treating said slag dump, said five acres to be located' contiguous and adjacent to said slag dump.” The lease was to continue for a term of five years, with an option to the lessee for an extension of two years. The consideration was that lessee raise and treat for the extraction of minerals therefrom the slag in the dump, and pay to lessor, as royalty, twenty-five per cent of the proceeds arising from such treatment or sale to smelters or ore buyers. It was stipulated in the lease that the lessee should not assign the same or any interest thereunder without the written assent of the lessor, and that he should not “ allow any person not in privity with the parties hereto, to enter into or hold possession of the said premises under any pretense whatever.”</p> <p>In December, 1891, Norton entered into a written contract with Edward R. Holden whereby the latter agreed to take the slag from the dump and treat it, and for this purpose was given the exclusive right to erect upon the leased, premises such buildings and machinery as might be necessary, and to use the same during the entire term of the lease and the extension thereof. The other conditions of the contract were substantially the same as those contained in the lease to Norton except that Holden was to pay a larger royalty. The language of the contract bearing upon the grant of the right to Holden to erect buildings and occupy the premises was as follows:</p> <p>“Now therefore in consideration of the covenants and agreements of the party of the second part hereinafter set forth, the party of the first part agrees to give, and hereby does give and grant unto said second part, the exclusive right under him and subject to all the restrictions in said lease to first party to erect machinery and works of such character as to the second party shall seem best, upon said leased premises, adjacent and contiguous to said slag dump described in said lease, to be used by the second party during the entire term of the said lease and the extension thereof.”</p> <p>Thereafter, on April 30, 1892, Holden with the written consent of Norton, assigned his contract or agreement with Norton to the- Holden Smelting and Refining Company in consideration, that it fulfill the covenants therein on his part.</p> <p>Under this authority and for the purpose of treating the slag dump, the Holden Smelting and Refining Company caused to be erected on the described premises the necessary buildings and purchased and placed therein the proper machinery used in a smelter plant and required for the reduction of the mineral bearing ores taken from the dump. Plaintiffs, as original contractors, claim to have furnished materials for, and to have done work and labor .upon said plant to the amount and value of about $11,000, upon which they received payment to the amount of about $6,500. For the balance they claimed a lien upon the premises, and upon July 10, 1893, within three days after their last work was alleged to have been done and materials furnished, they filed the required lien statement in the office of the clerk and recorder of Lake county. Defendants, the Williams Lumber Company and H. C. Dimick were also claimants of liens under the mechanic’s lien acts. All other defendants were claimants of liens created by the levy of writs of attachment issued in suits begun by them against the smelting company. None of the attachment lien claimants appeared except plaintiffs in error, the Carbonate National Bank of Leadville and the Cary Hardware Company, who bring the cause to this court on error and seek to reverse the decree of the district court in favor of the mechanic’s lien claimants.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Principal and Agent — Commissions.</p> <p>Where an agent employed to sell a ranch introduced to the owner a customer who at the time had not the money to buy, but was expecting to get money, and did afterwards get the money and complete the purchase from the owner on substantially the same terms as those furnished to the agent by the owner, the agent was entitled to his commission. The fact that the connection of the agent with the transaction was, by agreement between the agent, the owner and a third party through whom the purchaser was introduced to the owner, kept secret from the purchaser did not taint the contract with dishonesty so as to defeat the agent of his commission.</p> <p>2: Practice — Misjoinder of Parties.</p> <p>The rule that where there is a misjoinder of parties, timely objection must be made or the party will not afterwards be heard to complain of the misjoinder, applies to a case appealed from a justice of the peace to the county court and there tried upon an oral statement of the cause.</p> <p>3. Practice.</p> <p>In an action appealed from a justice of the peace to the county court where there was a misjoinder of parties defendant, but no objection was raised to the misjoinder, it was not error to permit plaintiff to dismiss as to one defendant, and take judgment against the other, after verdict had been returned against both.</p>

<p>L Pkincipal and Agent.</p> <p>Where a drug business was conducted by a husband in the name of his wife and on capital furnished by her, he acting as general manager of the business, buying and selling goods, she is liable for goods purchased by him and placed in the stock and sold, whether she had knowledge of the purchase or not, and although she had told the salesman of the company selling the goods that her agent must no longer buy goods of his company.</p> <p>2. Same.</p> <p>Where goods are purchased by an agent, the principal cannot appropriate and dispose of part of the goods and then refuse to pay for them on the ground that her agent was not authorized to purchase the goods for her. A principal cannot ratify part of a transaction and refuse to be bound as to the rest of it. The whole of the contract or none of it tnust be adopted.</p> <p>3. Same.</p> <p>A principal may not through an agent receive goods, dispose of them for his own benefit, pocket the proceeds and refuse to pay for them on the ground that the agent had no authority to buy the goods.</p> <p>4. PliACTICE.</p> <p>In a suit by attachment a verdict was returned for defendant. Part of plaintiff’s cause of action was admitted. It was error for the court to enter judgment for defendant upon payment into court by defendant of the amount admitted. If the plaintiff was entitled to recover any part of the claim he was entitled to a judgment for that amount in order to protect himself from liability on the attachment bond.</p>

<p>1. Injunction — Contemporaneous Oral Agreement.</p> <p>A complaint in a suit to enjoin the foreclosure of a deed of trust given to secure a promissory note that alleged that the payee of the note at the time of its execution agreed that in case a United States patent was obtained for the land the note would be extended for two years, states no grounds for equitable relief since a contemporaneous parol agreement is inadmissible to contradict or vary the terms of a written contract.</p> <p>2: Same.</p> <p>An allegation in a complaint, to enjoin the foreclosure of a deed of trust to the effect that the payee of the note and other parties had conspired to obtain the property for less than its value, could have no effect upon the terms of the note or upon the remedy of the payee if unpaid, as the payor could render such conspiracy harmless by fulfilling the promise contained in the note.</p> <p>3. Same — Judgment eor Costs.</p> <p>In a suit to enjoin the foreclosure of a deed of trust where the complaint stated no sufficient grounds for equitable relief the defendant was entitled to have the suit dismissed at plaintiffs cost. And upon payment by plaintiff of the amount due upon the note it was error for the court to dismiss the case without giving defendant a judgment for his costs.</p>

<p>Appeal from the District Court of Arapahoe County.</p>

<p> Error to the District Court of Garfield County. </p>

<p> Appeal from the District Court of JEl Paso County. </p>

<p> Error to the District Court of Las Animas County. </p>

<p> Error to the District Court of Arapahoe County. </p>

<p> Error to the District Court of Gilpin County. </p>

<p> Appeal from the District Court of Rl Raso County. </p>

<p> JError to the District Court of Lake County. </p>

<p>1. Pbactice — Pbesumptions.</p> <p>Where the record on appeal is not a full and complete record, whatever presumptions are indulged in by the court of appeals will be such as to sustain the trial court. In the absence of a complete record it will be presumed that an amended complaint was filed by permission of the court, in apt time and that defendant had an opportunity to plead thereto.</p> <p>2. Mechanic’s Lien — Statement.</p> <p>Where a mechanic’s lien statement showed that all the material for which the lien was claimed had been furnished prior to the making of the statement, the indebtedness had accrued and the words “ to become due” used in the statement should be treated as surplus-age. Even if the debt had not matured by reason of credit having been extended for a time, this would not destroy the right of the creditor to secure himself by initiating a lien.</p> <p>3. Same.</p> <p>A lien claimant can only be charged with knowledge of the ownership of property as apparent upon the public records. A statement which alleged the ownership in a party shown by the records to be the owner although in fact he only held the property to secure a loan was sufficient. And in a suit to enforce the lien, the true facts might be set forth in the complaint without fatal variance.</p> <p>4. Same.</p> <p>A mechanic’s lien statement which contains everything required by statute will not be avoided because it contains a statement or a misstatement of something not required and not material. The requirement of the statute that a subcontractor on filing a lien statement shall give the name of the contractor to whom material was sold or work performed is for the benefit of the owner, and where a party named in the statement as the contractor was in fact the agent of the owner of the property and purchased the material as such agent, the owner could not be misled.</p> <p>5. Same — Time within which to sue — Statute.</p> <p>The mechanic’s lien law of 1893 expressly provided that it should not affect any existing rights either as to remedy or otherwise. Where all the material had been furnished and the indebtedness had accrued before the law of 1893 went into effect although no statement had been filed, the right to a lien had attached and would be governed by the law then in force as to the time within which suit must be commenced.</p> <p>6. Same — Mobtgage Lien — Pabty to Suit.</p> <p>The holder of a mortgage lien on premises on which a mechanic’s lien is sought to be established is not required to come in and make hfinself a party to the action in order to protect his mortgage lien. Such a lien is not affected by a failure of the holder to assert his rights within the time limited to a mechanic’s lien claimant to institute his suit. And a failure to make a mortgagee a party to an action to enforce a mechanic’s lien within the time limited for such suit is not prejudicial to the owner of the premises nor to the mortgagee when his lien is adjudged prior to the mechanic’s lien.</p> <p>7. Same — Notice.</p> <p>Only a subcontractor is required to serve notice and copy of mechanic’s lien statement upon the owner, and where the decree found that plaintiff was a contractor such notice was not necessary. Such notice is not necessary to one who holds the land as a mortgagee.</p> <p>8. Pbactice.</p> <p>Where there is no bill of exceptions and the allegations in the amended complaint are not denied a general finding that the facts set forth in the amended complaint are true, is sufficient to support the decree. It will be presumed that specific findings of fact were waived.</p> <p>9. Mechanic’s Lien — Statement—Decbee.</p> <p>A mechanic’s lien claimant may in his statement claim a lien on the improvements and the land on which situated, and in a suit to enforce such lien if it be found that there was a valid prior lien upon the land, the claimant may be allowed to enforce his lien against the building alone — by sale and removal thereof.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Taxation — Cities and Towns — Wateewobks.</p> <p>Under subdivision 71 of section 3312, Gen. Stats., forbidding cities to levy a special tax for water rent in excess of 3 mills on the dollar for any one year, where a city is indebted to a water company for back rents and no levy has been made for several years to meet such rents, the city may levy a tax to pay such rents in excess of 3 mills provided the levy is not in excess of 3 mills for each year for which no levy was made.</p>

<p> Error to the District Court of Las Animas County. </p>

<p> Appeal from, the County Court of Pi Paso County. </p>

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

<p>1. Corporations — Directors.</p> <p>A director of a corporation may advance money to the corporation, may become its creditor, may take from it a mortgage or other security, and may enforce the same like any other creditor, but always subject to severe scrutiny, and under the obligation of acting in the utmost good faith.</p> <p>2. Corporations — Promissory Notb.</p> <p>Where a note is given by one corporation to another, the fact that the same person is president of both companies, may render it obljgEttory upon a court to closely scrutinize the bonafides of the transaction, but it does not create a presumption of the invalidity of the note, either as to want of authority to execute it, or of consideration. Corporations so situated have a right to deal with each other and unless it appears that some unconscionable advantage was taken of one by the other, or that fraud was perpetrated upon one by virtue of the same party being president of both, the presumption is in favor of the legality and fairness of the transaction.</p> <p>3. Corporations — Promissory Notes — Presumptions.</p> <p>Where a negotiable promissory note is executed by a corporation, the legal presumption is, that its execution is lawful and that the cor.poration has power to issue it.' '</p> <p>4. Negotiable Instruments — Illegal Consideration.</p> <p>If there is nothing upon the face of a negotiable instrument or in the written indorsement or assignment to notify the assignee that the instrument was originally given upon an illegal consideration (gambling debts excepted) or obtained through fraud, the assignee who pays value therefor, in good faith before maturity, may recover against the maker, even though the assignee be in possession of facts or circumstances sufficient to arouse suspicion in the mind of a person of ordinary prudence, and though he is guilty of negligence in not first following up such information for the purpose of discovering the illegality or fraud to which the suspicious circumstances seem to point.</p> <p>5. Same — Indorsement—Presumption.</p> <p>A negotiable note being offered in evidence duly indorsed, the legal presumption is that such indorsement was made at the date of the note, or at least antecedently to its becoming due; and if the defendant would avail himself of any defense that would be open to him only in case the note was negotiated after it was dishonored, it is incumbent on him to show that the indorsement was in fact made after the note was overdue.</p> <p>6. Same — Extension of Time of Payment.</p> <p>Where an extension of the time of payment is indorsed on the back of a negotiable promissory note, but such indorsement is not dated, the presumption is that it was made before maturity and upon sufficient consideration. The indorsement becomes a part of the note, and a purchaser before the expiration of the time as extended, is a purchaser before maturity.</p>

<p> Error to the District Court of Arapahoe County. </p>

<p>1. Wateb Eights — Abandonment.</p> <p>In a contest between parties as to the priority of right to use of water where one claims by reason of abandonment by the other, the burden of proof is upon the party asserting the abandonment, and the abandonment must be shown by a preponderance of evidence before it can be sustained.</p> <p>2. Same — Intent.</p> <p>Intention is the essence of abandonment. The fact that parties cultivating lands under a ditch did not see fit in times of scarcity to shut down their neighbors’ ditches and seek to enforce their right to all of the water awarded to them, cannot be held to raise a presumption that they intended to abandon their rights under the decree in whole or in part.</p>

<p>1. Pkactice — Evidence—-Objections—Exceptions.</p> <p>An exception to the admission of evidence is of no value unless preceded by an objection based on some specific ground.</p> <p>2. Same.</p> <p>An objection made to a preliminary question preparatory to the introduction in evidence of an arbitration record, was not equivalent to objecting to the record. If counsel thought that the record itself was inadmissible, he should have objected to it when it was offered.</p>

<p>1. Practice — Writs of Error — Cross-Errors.</p> <p>The fact that one party to a judgment has by writ of error had the judgment reviewed by the court of appeals does not preclude the other party from having the same judgment reviewed by a subsequent writ of error when the questions presented by the different writs of error are entirely different. The fact that our code gives the defendant in error the privilege to assign cross errors and his failure to avail himself of that privilege does not cut off his right to a writ of error.</p> <p>2. Pleading — Action on Sheriff’s Bond.</p> <p>A complaint on a sheriff’s bond which set forth the bond in full and alleged an order of court retaxing costs in a case wherein plaintiff was a party, which left money in the sheriff’s hands belonging to plaintiff and alleged the sheriff’s disobedience of the order in failing to pay over the money to plaintiff, sufficiently charges a breach of the condition of the bond to pay over all moneys which might come into his hands as sheriff to state a cause of action against the sureties on the bond. The fact that the complaint also alleged a willful charge by the sheriff of illegal fees (for which the sureties would not be liable) may be disregarded.</p> <p>3. Practice — Judgment—Collateral Attack.</p> <p>No attack can be made upon a judgment collaterally unless it is absolutely void.</p> <p>4. Pleading — Negative Pregnant.</p> <p>An allegation in an answer that defendant never had any legal, notice of a motion is in the nature of a negative pregnant, and is not a sufficient allegation of want of notice. It is an admission of notice and denial of its legality.</p> <p>5.. Presumptions.</p> <p>Presumptions are always in favor of the jurisdiction of the court arid the regularity of its proceedings.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Landdobd and Tenant — Deposit Secubity foe Rent.</p> <p>Where a lessee deposited with his landlord $250, and took a receipt reciting that it was received as security that tlie lessee would remain in possession of the premises until the end of the lease, paying rent in advance and provided that if the lessee abandoned the premises and did not pay rent according to agreement, the deposit should be forfeited and become the possession of the landlord, but in case of fulfillment the money was to be returned; held, that as the damages for breach of the contract of lease were easily ascertained the money deposited was to be construed as a security for whatever damage could be proven by the landlord and not as liquidated damages for such breach.</p> <p>2. Landloed and Tenant — Subeendeb of Teem.</p> <p>An agreement by the tenant to abandon possession of the demised premises and by the landlord to resume his occupancy, and the execution of this agreement, in law amounts to a surrender of the term, and the lease is terminated and the obligation of the tenant to occupy or pay rent is thereupon determined. •</p> <p>3. Same.</p> <p>In case of abandonment of the premises by a lessee tbe landlord may have his election to leave tbe premises vacant and sue for rent for tbe balance of tbe term and enforce any security be may bold for tbe performance of tbe contract, or terminate tbe contract and enter a claim for rent up to time of abandonment and acceptance of possession. But be is not at liberty to take possession of tbe premises and at tbe same time insist that tbe contract is in force and recover rent for tbe balance of tbe term.</p> <p>4. CONTBACT — ISTTEBEST.</p> <p>Where a lessee bad deposited with his landlord money to secure tbe payment of rent and tbe occupancy of tbe premises for tbe term and tbe lease was terminated by agreement before the end of the term, in a suit by tbe lessee to recover tbe money deposited, he was entitled to interest from tbe date the lease was terminated, and not from tbe end of the term as originally contracted.</p>

<p> ¡Error to the District Qourt of Pueblo County. </p>

<p> Appeal from the District Court of Pueblo County. </p>

<p> Error to the District Court of Arapahoe County. </p>

<p> Error to the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Pueblo County. </p>

<p>1. ' Practice — Summons.</p> <p>By section 33 of the code a summons in a civil action must be signed by the clerk and issued under the seal of the court, or it must be signed and issued by the attorney for the plaintiff. A summons not issued and signed either by the clerk or plaintiff’s attorney is no summons, and an acceptance of service of a purported summons which was signed by neither the clerk nor plaintiff’s attorney would be no acceptance of service of summons.</p> <p>2. Practice — Entry of Appearance.</p> <p>Entry of appearance by defendant to an action waives objections to summons or service thereof.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Practice.</p> <p>In a special proceeding where the constitution, code, and statutes controlling proceedings are silent as to the mode of trial, it should he in accordance with the usage and practice prevailing before the adoption of the constitution, code, or statute. In case there is no previous usage or practice,- the proceedings including the mode of trial, would come within the provisions of the statute declaring; that the common law of England, so far as applicable, shall be the-rule of decision and be considered of full force.</p> <p>2. Practice — Probate op Will — Appeal to District Court.</p> <p>County courts have exclusive original jurisdiction in the matter of probate of wills, and from the judgment of the county court an appeal may be taken to the district court, where the trial shall be de novo. On an appeal to the district court from the judgment of the county court admitting a will to probate by an heir of the testator, the contestant is entitled as a matter of right to have the matter tried by a jury and the denial of this right by the district court is reversible error.</p>

<p> Error to the County Court of Gilpin County. </p>

<p>Pbacitce — Appeal—Review of Findings.</p> <p>Where the verdict of a jury or the finding of fact of the trial court is upon conflicting testimony, such verdict or finding is conclusive upon the appellate court, unless it is manifest that the evidence is wholly insufficient to support such verdict or finding.</p>

<p> Appeal from the County Court of Pitkin County. </p>

<p>Qity or Denver — County Treasurer — Rees—City Taxes.</p> <p>Sec. 5, article 6 of the amended charter of the city of Denver (Sess. Laws, 1885, p. 104) providing for compensation of certain county officers for extra work imposed in connection with the assessment of property in the city for city taxation and limiting such compensation to one per cent of the total city taxes, did not apply to the county treasurer for collecting the city taxes. The fees .of the county treasurer were fixed by sec. 7 (Sess. Laws, 1885, p. 214) at one and one fourth per cent upon all taxes collected of every kind, and the treasurer was entitled to that per cent for collecting the city tax.</p>

<p>Attachment — Exemptions.</p> <p>Where an attachment is levied upon property, all of which is exempt from attachment and no property is left which the officer has a right to seize, the officer must act at his peril. But where the levy also includes property which cannot be claimed as exempt, it is not only necessary for the debtor to claim his exemption, but he must point out to the officer the specific property claimed as exempt. Unless the debtor so designates the property claimed the officer is not liable for damages for levying on exempt property.</p>

<p>1. Eoreickn Corporation — Preference to State Creditor.</p> <p>To entitle a party to invoke the.aid of Gen. Stats. 1883, sec. 260 (Mills’ Ann. Stats, sec. 409) which provides that no foreign corporation shall mortgage or incumber its property in this state to the injury-' or exclusion of any citizen or corporation of the state, and that noincumbrance which the foreign corporation may execute.to secure, any debt created in any other state, shall be operative as against citizens until all liabilities due to any citizen or corporation at the ' time such mortgage was recorded shall have been discharged, such party attempting to invoke the aid of said statute must bring himself plainly, clearly and unmistakably within its terms. To bring himself within the terms of this statute, the party invoking its aid, must show either that the mortgage was given to the exclusion or injury of a citizen of Colorado, or that the debt which the nonresident seeks to enforce was created out of the state and the citizen’s debt must he then due.</p> <p>2. Same — Estoppel.</p> <p>Where a citizen of this state, a stockholder in a foreign corporation,1 entered into an agreement with nonresident stockholders of the-' same corporation and with the corporation, whereby the different stockholders agreed to advance money to the corporation to enable. it to carry on its operations for the benefit of the stockholders, and permitted the company to execute its several notes to the different' stockholders for the money advanced, one of which he takes, and to give a mortgage, on ail its property to secure the payment of these obligations, he may not be permitted to say that the security is invalid under sec. 260, Gen. Stats. 1883, and assert a preferential right as against the parties with Whom he has agreed, and who on the faith of that agreement have advanced their money.</p> <p>3. Constitutional Question.</p> <p>The constitutionality of sec. 360, Gen. Stats. 1883 (Hills’ Ann. Stats, sec. 409), is questioned but not determined.</p>

<p> Appeal from the District Court of Lake County. </p>

<p>1. Official Bond.</p> <p>The official bond of a district clerk conditioned that he should pay over all moneys that might come into his hands as clerk was a sufficient compliance with the statutory requirement specifying that the condition shall be to pay over all money that might come into his hands by virtue of his office to make the bond a statutory obligation. Whatever money came into his hands as clerk came into his hands by virtue of his office.</p> <p>2. Same — District Court — Money Paid into Court.</p> <p>Money paid to the clerk of the district court which he had no authority to receive, and without an order of court directing the money to be paid into court, was not money paid into court, nor was it money coming into the hands of the clerk by virtue of his office for the payment of which the sureties on his official bond would be liable.</p> <p>3. Official Bonds — Liability of Sureties.</p> <p>The sureties on the official bond of an officer are liable for the abuse of an authority which he possessed, but are not liable for the abuse of an authority which he pretended to have but did not possess. The fact that the clerk of a district court represented to an assignee that he had authority to receive money of the estate without an order of court, and relying on said representation the assignee deposited with the clerk money belonging to the estate, would not make the sureties on the clerk’s bond liable for a conversion of the money by the clerk.</p> <p>4. Court Records — Unauthorized Entry op Clerk.</p> <p>An unauthorized entry of the clerk is no part of the court records. An order by which money is paid into court must come from the court itself, and an entry by the clerk of money as being in court without such order is nugatory.</p> <p>5. Fund in Court.</p> <p>Where money was deposited with a clerk of court without an order of court making it a fund in court, the fact that the court afterwards directed the disposition of part of the fund by the clerk could not make it a fund in court. If money is deposited with the clerk without authority, the court might order it paid into court by the clerk and thus make it a fund in court, but it becomes a fund in court by virtue of the order and not of the payment to the clerk.</p>

<p>1. Practice and Pleading — Promissory Note.</p> <p>Where a suit was brought on a promissory note and the defendant attempted tbe denial of its execution by an argumentative denial, the attempted denial was a deduction and not a denial that would put the execution of the note in issue. An allegation by the defendant of the execution of a note to the same party for the same amount, bearing same date and due at same time was an admission of the execution of the note sued on.</p> <p>2. Practice — Continuance.</p> <p>An affidavit for continuance for an absent witness which fails to state that the facts cannot he proven by other witnesses is fatally defective.</p> <p>3. Pbactice — Appeal—Pbesumption.</p> <p>Where on appeal the hill of exception is stricken from the files the correctness of the judgment on the facts is conclusively presumed.</p>

<p>1. Contract — Misrepresentation.</p> <p>Where a contract of lease was entered into through misrepresentations on the part of the lessor that the plumbing of the house was perfect, and that no sewer gas existed about the premises, the fact that the lessee signed the contract of lease in which he covenanted that the premises were received in good order and condition, was not conclusive against him. And in a suit by the lessor against the lessee, it was not error to permit the defendant to testify as to the representations made by the lessor and that the house was permeated by sewer gas.</p> <p>2. Same.</p> <p>Any intentional misrepresentation of material facts in the making of a contract, where the parties have not equal access to the means of information will vitiate and avoid the contract, whether the party making them knew the representations to be false or whether they were made without knowledge of their truth or falsehood.</p> <p>3. Lease — Misrepresentations.</p> <p>Where a party was induced to lease a house upon the representation by the lessor that the plumbing was perfect and the house free from sewer gas, tlie lessee was justified in vacating the premises and putting an end to the contract upon discovering that the house was permeated by sewer gas.</p>

<p>Elections — Political Parties — Emblems.</p> <p>A political party may under the statute authorizing it to designate its list of candidates by an appropriate emblem or design, adopt as its emblem the portrait of one of its candidates.</p>

<p>1. Towns — Power of Board of Trustees — Illegal Claim.</p> <p>Where a claim is presented to a board of trustees of a town, which would under some circumstances be a valid claim against the town, and the board has power to pass upon its validity, their action in passing upon and allowing the claim is final. But where a town board allows and pays an illegal claim against the town, which the board had no authority to allow or pass on its validity, the act of the board is void and the voluntary character of the payment is no defense to a suit by the town authorities to recover the money thus illegally paid.</p> <p>2. Same — Contested Election — Attorneys’ Pees.</p> <p>A municipal corporation has no power to hire an attorney to prosecute or defend the contested election of its mayor or a-member of its board of trustees, and the allowance of a claim against the town for services as such attorney was illegal, and the town may maintain an action to recover back the money paid on such claim.</p>

<p>1. Towns and Cities — Obdinances—Penalties.</p> <p>Where no penalty is provided for the violation of an ordinance of a city or town, none can he recovered.</p> <p>2. Same — Violation of Obdinance Pbocubed by City.</p> <p>Where a city itself is instrumental in procuring the violation of its ordinance by the sale of liquor, in order to lay the foundation for a suit in which a judicial opinion, as to what would constitute a violation of the ordinance, might be procured, it is in no position to say its ordinance has been violated. It cannot be heard to complain of an act, the doing of which it solicited.</p>

<p> Error to the District Court of Arapahoe County. </p>

<p>1. Cities and Towns — Violation of Ordinance — Practice.</p> <p>For the violation of an ordinance of a city or town, the city or town may proceed against the offender by instituting a prosecution analogous to the course taken in criminal cases, or may proceed as in a civil action brought before a justice of the peace. In the latter case the prosecution is begun by summons as in a suit to collect a debt.</p> <p>2. Practice — Appearance—Summons.</p> <p>Where in a prosecution for the violation of a city ordinance begun by summons as in a civil action, the defendant appears and defends, and upon conviction appeals to the county court, it is then too late to question the sufficiency of the summons. By appearing and submitting to trial the defendant waived all objections to the sufficiency of the summons.</p>

<p> Appeal from the County Court of Rio Grande County. </p>

<p>1. Sale op Chattels — Statute op Frauds.</p> <p>Ia a sale of chattels where the price is $50.00 or more, a note or memorandum of the contract must be made in writing and subscribed by the parties to be charged therewith ; or the buyer must accept and receive at least part of the goods ; or he must at the time pay the whole or part of the consideration ; otherwise the contract of sale is void.</p> <p>2. Same.</p> <p>Facts held insufficient to constitute a valid sale of goods under the statute of frauds.</p>

<p> Error to the District Court of Pitkin County, </p>

<p>1. Pbincipal and Agent — Commissions.</p> <p>Where a real estate broker procured and introduced to his principal a purchaser who agreed to buy the land at the agreed price, and paid a part of the purchase money as a bonus, agreeing to pay the balance at a future day, and a deed was executed and placed in escrow to be delivered upon payment of the balance of the purchase money, but the purchaser refused to complete the purchase and left the state leaving no property in the state, the agent was not entitled to recover commission on the sale.</p> <p>2. Pbacticb — Directing Vebdict.</p> <p>Where a plaintiff upon trial show’s no cause of action, it is not only the right, but it may be the duty of the court to direct a verdict for the defendant.</p>

<p>OOITTBACTS — CONSIDEB ATIOST.</p> <p>An agreement was made by H. and liis associates with T. whereby it was agreed that T. should prospect for and locate placer mines, and H. and his associates to pay T.’s expenses and such sums as were necessary to expend in making the locations. If the enterprise was a failure T. was to charge up only his expenses. After T. had been at work some time he wrote H. that he understood he and his associates were annoyed by the delay and that if they were dissatisfied he would return the full amount advanced to make the locations.. Held that this promise was without consideration and upon mutual abandonment of the enterprise H. and his associates were only entitled to recover of the amount advanced what was left in T.’s hands after paying his expenses.</p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p>1. Contracts — Costs.</p> <p>Where the indorser of a note entered into an agreement with the indorsee whereby the indorsee was to prosecute an attachment suit against the maker of the note and the indorser was to pay the expenses of such attachment suit, the indorser was liable under the contract to the indorsee for expenses incurred in defending an'intervention suit growing out of such attachment proceedings, and for damages recovered by the intervenor against said indorsee.</p> <p>2. Pleading and Proof.</p> <p>Where the indorser of a note agreed with the indorsee to pay all the expenses of an attachment suit against the maker, and the indorsee sued the indorser for such expenses, under an answer simply denying that plaintiff incurred the expense, evidence to prove that certain of the items of expense were unreasonable or unnecessary, was inadmissible.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>Appellate Peactice — Exceptions.</p> <p>Rulings of trial courts will not be reviewed on appeal unless excepted to. Where trial is to the court, it is necessary to except to the judgment in order to authorize the appellate court to review such judgment on the evidence.</p>

<p>Practice — Forcible Entry and Detainer — Appeal Bond.</p> <p>In an appeal from a justice of the peace to the county court from a judgment against the defendant in an action of forcible entry and detainer, where the appellant failed to give an additional bond for the use and occupancy of the premises as required by the act of 1891, it was not erroneous for the county court to refuse to allow such bond to be filed in that court or permit the original bond to be amended.</p>

<p> Appeal from the District Court of Pueblo County. </p>

<p> Appeal from the District Court of Lake County. </p>