Volume 11 — Colorado Reports

<p>In an action against a railroad company for the loss of goods shipped over its road plaintiff alleged the undertaking on the part of defendant to carry the goods safely, the negligence on the part of the company, and the consequent loss of the goods. Defendant made a specific denial of each allegation of the complainant. Held, that evidence that the road was not in the control of the defendant, but was in the hands of a receiver, was admissible.</p>

<p> Error to County Court of Chaffee County. </p> <p>Proceeding against Alexander G-. Watson for contempt of court. There was a conviction, and the defendant brings error.</p>

This action was brought by plaintiff, Bogers, to recover damages for physical injuries suffered while in the employ of the appellant company. Bogers, being a carpenter, was cribbing at the bottom of a shaft some fifty feet in depth. Tools and materials of various kinds for the work were lowered to him by means of a windlass and bucket.

This action was brought against Frank M. Harden-brook, appellant, before a justice of the peace, to collect a claim for dress material and dress-making services furnished to Mrs. Frank Hardenbrook. Judgment was rendered for appellee, Harrison, by the justice, and an appeal taken by the present appellant to the county court. There the cause was retried without a jury, and judgment again rendered in favor of the plaintiff below.

<p>1. Any neglect to do the annual assessment work required by the Colorado statutes relating to mines is not excused by the failure of one or more joint owners to do such work under a promise to his co-owners to that effect; and a valid relocation, by a stranger, for such neglect, is not affected by such understanding between the original owners.</p> <p>2. An “adverse claim” is not available to an original owner seeking to establish an equitable title in and not against a relocation of an abandoned lode.</p> <p>3. In an “adverse claim” the fact that one of the original owners conspired with the person who relocated the property as an abandoned lode to mak® default on the assessment work is immaterial when, as a matter of fact, the annual work was not done.</p>

Adams, the plaintiff in error, filed his bill of complaint in the court below against Schiffer, Borsch and Stern, praying for an account, and a reconveyance to him of the Aztec lode and the Aztec mill-site, and, in case he should not be entitled to this relief, that the defendants be decreed to pay him certain sums of money. The cause was tried to the court on the bill, answer and evidence, and the bill dismissed. Brom this decree Adams appeals to the supreme court.

James M. McKeen filed a complaint in the county court of Jefferson county against Isaac Cooper, alleging a sale and conveyance to defendant of an- undivided one-fourth in certain mining claims in Columbia mining district, Pitkin county, Colorado, to wit, the Central, Great Western, Chrisocalla, Champion, Tunnel, Jennette and Cinnamon; that defendant promised to pay for the same $1,800, and convey back an undivided one-tenth of the Central claim; that he conveyed said…

<p>General Statutes of Colorado, 1S83, section 3627, provides that where, upon renunciation by the widow, “legacies and bequests” to other persons named in the will are increased or diminished, the court shall, in settling the estate, take from or add to them so as to put them upon the same relative footing they have had under the will. Meld, that “legacies and bequests,” as used in the statute, embraced “ devises,” and that upon renunciation by the widow, under section 2270, giving her in such case half 'of the whole estate, the will was not revoked as to a devise to one not an heir at law, but that such a devise abated one-half.-</p> <p>2. Where the widow renounces under General Statutes of Colorado, 1883, section 2270, giving her in such case one-hair of the whole estate, and the estate is solvent, she is entitled to half the rents arising out of land devised under the will to one not an heir at law of the testator.</p>

September 20, 1882, Hamm began boarding at Gage’s hotel, and seven days thereafter delivered to him a guaranty signed by Patterson, and in the following words: “ I will be responsible for the hotel bill of J. W. Hamm, and will see it paid within twenty days.” Hamm remained at said hotel fourteen days, running a bill of $19 for board and lodging; also, a bar bill of $23.25. Gage sued Patterson on this guaranty, claiming $72.25.

Action by Mina Schmitt against the Denver & Rio Grande Railway Company for damages to plaintiff’s premises, occasioned by the construction, operation and maintenance of defendant’s railway. Judgment for plaintiff. Defendant appeals.

<p>1. If a railway company constructs and operates a railroad in a public street it is liable to the owner of property abutting on such street, notwithstanding an ordinance of the municipality in terms authorized such use of the street, for the actual diminution in market value of the property for any use to which it may be reasonably put, occasioned by the construction and operation of the railway through such street. ■ ,</p> <p>2. On the trial of an action for damages for the depreciation in value of plaintiff’s property, occasioned by the construction and operation of defendant’s railway in the streets upon which plaintiff’s property abuts, plaintiff and others, against the objection of defendant, testified as to the decrease in the rents and rental value of the property by reason of the construction of the railroad, but that they did not know its market value before or since the building of the said railroad. Held, that this evidence, having been properly qualified by the instructions given, was admissible to aid in determining the actual depreciation of the realty and improvements in market value.</p> <p>3. In an action for damages for the depreciation in value of property, occasioned by the construction and operation of a railway in the street on which the property abuts, whore there is a conflict in the evidence as to the amount of depreciation of the property, part of the witnesses placing it as greater than that found by the jury, and the jury having viewed the premises, the verdict will not be set aside as excessive.</p>

<p>Defendant, while playing at “poker,” bought “chips” to the amount of $1,500, and paid therefor, after the keeper of the house had refused to sell him on credit, by assignment of a certificate of deposit, and lost the entire sum. At the close of the game, on defendant’s request, and his stating that he had a note of $400 to take up in bank, the keeper of the house loaned him that sum and took his note therefor. Held, that the loan was not a gambling debt, and that a note, including the loan, was not infected with a gaming consideration.</p>

Charles G~. Ohever, appellant, brought an action at law against the defendants, Henry E. Rogers and John W. Horner, for possession of lot 10, block 176, in the east division of the city of Denver, claiming ownership in fee-simple. The complaint alleged that Rogers wrongfully withheld possession from the plaintiff, and that Horner claimed title adversely to him.

Peterson contracted verbally with the Brooklyn Consolidated Mining Company, through its agent, Pulton, to sink for it a' mining shaft and drive a level. The terms of this contract were shown only by the conflicting statements of Peterson and Pulton. Peterson sued on this contract for a balance ' alleged to be due him, contending that by Pulton’s permission work was suspended before full completion.

The appellee, Dr. Marshall, was present at the inquest over the body of Healey. While at the inquest the coroner requested him to call some other physician to his assistance and make a post-mortem examination. In compliance with this request he called to his assistance the appellee, Dr. Black; and the two together, in the presence of the coroner, made the examination.

On the 5th day of August, 1884, appellee, Wilhelmine Gude, commenced an action in the district court of Chaffee county to recover the possession of certain personal property which had been on the Sd day of May, 1884, conveyed by appellants to appellee to secure the payment of a promissory note for the sum of $2,298.72, made by appellants to appellee. Defendants demurred to the complaint on the ground that it did not state a cause of action.

<p>1. A writ of error to a final judgment brings up for review an order made discharging an attachment.</p> <p>2. Under the laws of Colorado corporations may sue and be sued as individuals.</p> <p>3. Insolvency alone does not prevent a corporation from transacting business.</p> <p>4. Creditors are not deprived of their legal remedies against a corporation by reason of its insolvency. The remedy by attachment is one of the remedies so provided by law.</p> <p>5. An attachment lien relates back to the date of levying the attach^ ment writ. After an attachment lien has vested upon the property of a corporation it will not be divested by subsequent proceedings for winding up the company, unless the contrary be expressly provided.</p> <p>6. An alleged cause for attachment “ that the 'action is brought upon an instrument in writing over due, and for the direct payment of money,” states a good cause for attachment.</p> <p>7. In the absence of equity jurisdiction, properly invoked, the assets of an insolvent corporation do not constitute a trust fund for pro rata distribution among all its creditors, nor in such case does any superior equitable lien exist as against a prior attaching creditor; •</p>

<p>1. Defendant sent a telegram to plaintiff saying: “Will you accept [employment] on two years’ guaranty at $1,400?”. Plaintiff answered by telegram saying that he accepted, and would be on hand to commence work January 10th. Defendant sent a telegram in response saying: “I will accept you January 10th.” Held, that the contract of hiring for two years was reduced to writing, and signed, so as to take it out of the statute of frauds.</p> <p>2. Plaintiff alleged that he was wrongfully discharged by defendant. This defendant denied; and the parties, without objection to the state of the pleadings, went to trial. Held error for the court to exclude testimony showing misconduct of plaintiff in his employment a month prior to discharge.</p>

Hood, consisting of a promissory note, an account and a judgment. The plaintiff obtained these demands by assignment from one Charles W. Pollard, a grocer of Georgetown, who had for several years supplied said defendant (who was engaged in mining) with miners’ supplies, and to whom defendant had become indebted in the manner stated.

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

. On February 12, 1884, a writ was issued by H. P. Krell, Esq., a justice of the peace in Lake county, summoning the Western Union Telegraph Company to appear and answer to a money demand of Fred H. Conant. The. constable returned this writ as served at Leadville upon O. M. Davis, agent of the plaintiff in error.

On the 2d day of October, 1882, the defendant in error, a corporation, was the owner of the chattels here in controversy, consisting of printing-presses, engines, type, machinery and printing supplies.

Suit commenced by Adolph P. Hochstadter et al. against Mary P. Hays et al. in the county court of Arapahoe county, July 23, 1881, by filing complaint, affidavit in attachment, undertaking and cost bond. Judgment for plaintiff, and appeal to the district court. Trial in the district court, judgment for defendant, and appeal to the supreme court.

This action was brought in the district court by the plaintiff Murray, against the Denver & Eio Grande Eailroad Company, to recover damages for injuries received while in the employ of the defendant on its road as a laborer. Judgment of nonsuit was entered against the plaintiff, who brings the cause to the supreme court by writ of error.

This was an action in ejectment. On the 24th of November, 1884, a stipulation was entered into between counsel for plaintiff Hurd, and defendant Job C. McClellan, to tbe effect that judgment should be entered against Hurd, then vacated, and the cause tried on its merits; that, as between them, this trial on the merits should be final, save the right of review in the supreme court; that is to say, the right to a new trial by the successful party, upon the payment of costs,…

The defendants in the court below demurred to the complaint of the plaintiffs on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, the defendants stood by their demurrer, and a decree was entered in favor of the plaintiffs. From this decree the defendants appeal to the supreme court. The following abstract sufficiently shows' the character of the complaint.

Mandamus to the County Treasurer of Conejos County. Original agreed case. Prior to the adoption of section 2, page 241, Session Laws 1887, the valid floating indebtedness of Conejos county, repiesented by outstanding warrants duly registered according to law, had reached the constitutional limit. In October of that year the board of county commissioners attempted, at least partially, to act under the provisions of the statute mentioned.

Original proceeding in the nature of quo warranto. Held: in response to a legislative question on the subject, that this act operated to create a vacancy in the office between the dates mentioned, upon the expiration of the terms of the present incumbents, which vacancy the county commissioners were authorized to fill. 9 Colo. 631.

Original proceeding in the nature of quo warranto. By an act of legislature changing the beginning of the term of office of county treasurers a vacancy was caused, which the county commissioners were authorized to fill. One May, who was county commissioner, and whose term of office expired at midnight, January 9th, participated in the deliberations of the board next morning, and by his vote an appointment was made filling the vacancy.

<p> Error to District Court of Boulder County. </p>

Oantril, as United States marshal, levied two writs of attachment issuing from the federal court, in suits against Herman Bros., upon certain personal property belonging, as he asserted, to them.

Eucicer, Judge. The relator is the owner of several mining claims situated on Aspen mountain, in Pitkin county; and in order to facilitate the transportation of ores therefrom to certain sampling works in the town of Aspen, known as the “Hewitt Sampler,” laid out and constructed tramways from the mines to a common point in the vicinity, and laid out a main line extending from the point of convergence to the sampling works.

The object of this action was to recover from the defendants, Higenbotham & Barnes, mesne profits received by them from tenants who occupied a portion of lots 1 and 2 of the Leadville Improvement Company’s addition to the city of Leadville, pending action by said company for possession. The defendants to that action originally were De Lay, Cottrell, Malian & Franklin.

<p>1. Where no exception is taken to the judgment of a county court, the supreme court cannot review such judgment upon the evidence.</p> <p>2. Where an action is commenced in a justice’s court, and taken by appeal to the county court, it is not error in the county court to ' refuse to exclude certain evidence on the ground that such evidence had not been introduced in the justice’s court.</p>

This action was commenced December 17, 1879. The defendant in error was plaintiff below, and the complaint set out four causes of action, the first three being upon promissory notes made by the defendant to the plaintiff, and the fourth cause of action is stated as follows: “(1) That on or about the 15th day of December, 1875, he paid for the use of the defendant the sum of $1,963.50, the amount of principal and interest of a certain note dated 7th January, 1872, due ninety…

<p>Í'. On the trial of an indictment for burglary, an accomplice, as a witness for the prosecution, after testifying that he told M. where the jewelry was that was taken, was asked if he went with jML to show him where the jewelry was. Held not objectionable on the ground “that the declarations of one of several persons engaged in a common unlawful purpose are not admissible against the others if made after the completion of the unlawful purpose.”</p> <p>2. An instruction that, “to render proof of an alibi satisfactory, the evidence mast cover the whole time of the transaction in question, so as to render it impossible that the defendant setting up such defense could have committed the act,” held liable to mislead the jury, and ground for new trial.</p> <p>3. An instruction that “ an accomplice is a competent witness, and if the jury, weighing the probabilities of his evidence, think him worthy of belief, a conviction, supported by such testimony alone, is legal,” is correct, the jury being further instructed that “evidence from an accomplice should be received with great caution.”</p>

<p> Appeal from District Court of San Miguel County. </p>

This was an action to recover for certain services rendered in surveying certain lands. The action was commenced against the said William A. Hamill by the said John K. Ashley and one Peter O’Brien, as partners. It was tried to the court.

This was an action commenced by Charles Conner, October 5, 1883, against Amos H. Root, upon an agreement in writing, as follows: “ Denver, Colorado, May 11, 1882. “Whereas, Charles Conner did, on the 18th day of January, 1882, deliver and indorse over to me one certain certificate of deposit issued by the Colorado National Bank of Denver to one Annie Reardon, for the sum of $943.40, and dated December 23, 1881; and whereas, said certificate of deposit showed on the back of…

<p>1. Constitution of Colorado, article 6, sections 2 and 11, providing the district and supreme courts of the state shall have appellate jurisdiction, does not by implication limit appellate jurisdiction to such courts; and appellate jurisdiction may be conferred on county courts under Constitution, article 6, section 23, providing that no appeal'shall lie to the district court from any judgment given by the county court upon an appeal from a justice of the peace.</p> <p>2. Constitution of Colorado, article 7, section 6, provides: “No person except a qualified elector shall be elected or appointed to any civil or military office in this state.” Held, that the word “office,” as used therein, does not include deputy clerkships of county courts, and women may hold such deputy clerkships.</p>

On August 15, 1883, the plaintiff in error, by his deed, conveyed to the defendant in error, Karrick, an interest in certain mining claims in Gunnison county. The deed contained the following provision: “Subject to all the incumbrances against said property, as evidenced by the trust deeds thereon, which indebtedness the party of the second part hereby assumes and agrees to pay.

<p>Where defendants in an action of replevin do not appear, relying' upon the assurance of the constable, to whom they give up the property, that they need do nothing further, and that he will'have the suit dismissed, there is not such diligence as entitles them to certiorari to the county court, under General Statutes, 1883, section 1995, relating to certiorari.</p>

<p> Appeal from Superior Court of Denver. </p> <p>The facts are stated in the opinion.</p>

<p>A pai-fcy cannot appeal from a judgment rendered in his favor; his only mode of review being by writ of error.</p>

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

David H. Moffat recovered judgment on a note against Lewis Cross and John M. Cross by confession under a warrant of attorney in the note. Subsequently the makers’ motion to set aside the judgment was overruled, and defendants bring error.

The indictment in this case contains two counts, charging Roberts, in the first, with the larceny of mineral ore of the value of $120, and in the second with breaking and severing ore, with intent to steal in the Foz’est City mine, while an employee therein; each of said offenses being a felony. The ownership of both the ore azzd the mine was alleged to be in the Small Hopes Consolidated Mining Company, a corporation.

Ejectment by John O. Abbott against Andrew Armstrong. Judgment for plaintiff, and defendant appeals. The appellee was plaintiff below, and his action was one in the nature of ejectment, to recover lot 1, block 112, in the town of Fort Collins.

<p>3. A correct conclusion is not to be overthrown because it is reached by illogical reasoning, or upon some grounds which are false; thus where there are sufficient facts reported by a referee, as found by him, to warrant a judgment, the judgment will not be disturbed on review.</p> <p>2. When the nature of a wrongful act is such that it not only inflicts an injury, but takes away the means of proving the nature and extent of the loss, the law will aid the remedy against the wrongdoer, and supply the deficiency of proof caused by his misconduc t, by making every reasonable intendment against him and in favor of the party injured. It is upon the consideration of the relative s'tuation of the parties, disclosed by the character and nature of the transaction, that the rule is adopted.</p> <p>3. A principal is hound to know what an agent does in the course of his employment, and particularly so when the profits of the conduct of the agent go to the principal.</p> <p>4. The scope of an agent’s employment is to be determined, not alone from what the principal may have told the agent to do, but from what he knows, or, in the exercise of ordinary care and prudence, ought to know, the agent is doing in the transaction.</p> <p>5. If the agent violates his duty to his principal, and is guilty of a wrong to a stranger, whereby the employer is directly and pecuniarily benefited, such wrong is in point of law the wrong of the latter.</p> <p>6. Our law requires every one to know the boundaries of his own land, and, in an action guare clausum fregit against him for passing his boundaries and entering upon the land of his neighbor, he cannot defend by showing his ignorance of such boundary lines.</p> <p>7. The burden of proof of a fact is upon him who affirms it.</p> <p>8. It is good pleading to deny wholly the wrong with which one is charged, putting the party alleging it to the proof, relying upon his inability to make any proof, or proof of the whole wrong; but the fact that the party complaining does succeed in px-oving a part only or all the wrongs alleged is no evidence that his opponent is surprised in either fact or law.</p> <p>9. A court of general jurisdiction, in passing upon the findings of law and fact contained in a referee’s report in a case of trespass, sustained exceptions to several conclusions of law therein contained, and also sustained a motion to enter such a judgment as the facts proven and the law warrant. Held, that there was nothing in these facts, or the language used, to show that the court disregarded the findings of fact by the referee, and proceeded on its own findings.</p>

In November, 1880, the Denver Circle Railroad Company was organized as a corporation under and by virtue of the laws of the state of Colorado,. In January, 1881, it procured the passage of an ordinance by the- city council granting authority to locate, construct,, maintain and operate a single or double track railway and telegraph line through certain streets of the city, including Willow lane and Clark street.

<p>1. On an indictment for murder, a verdict finding “ defendant guilty in manner a,nd form as charged in the indictment,” but failing to find whether defendant is guilty in the first or second degree, as required by Laws of 1883, p. 150, is insufficient.</p> <p>2. On a trial for murder it is error to chai-ge that “ if you believe from the evidence that defendant fired the shot that.caused the death of the deceased, and that at the time of the controversy defendant was in such a mental condition as to distinguish the difference between right and wrong, then he was responsible for his act, aud you must convict; ” such charge standing alone not stating a correct legal proposition.</p>

<p>Original proceedings by tbe people, at tbe relation of TT, B. Johnson, for the disbarment of Luther M. Goddard.</p>

This was a suit in equity commenced in the district court of Arapahoe county, on the 12th day of May, 1887, to set aside certain conveyances. It appears that, on or about the 1st day of May, 1884, Kufus Olark, one of the appellees, sold and conveyed to W. A. H. Loveland and T. C. Henry certain lands situate in Arapahoe county.

A comprehensive statement of the facts of this case, as well as the final conclusions of the referee, are shown by such portions of the referee’s report, as follows: “The essential substantive facts found from the evidence in this cause are as follows: On the 7th day of May, 1880, Nicholas N. Atkinson, James E. Chaney and S. E. Bruckman entered into an agreement in wniting, by which Bruckman agreed to furnish to Atkinson and Chaney $15 per week, in return for which they were…

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

<p>A bill of exceptions to rulings of the court below, which is not sealed by the judge, will not be considered in the supreme court.</p>

This action was commenced by Joseph Anderson against the Union Pacific Railway Company to recover for services and medicines by him rendered and furnished under the following agreement: “Memorandum of agreement made and entered into this 11th day of May, 1881, by and between the Union Pacific Railroad Company, party of the first part, and Joseph Anderson, M. D., party of the second part, both of Colorado, witnesseth, that in all cases of injury to employees of the said first…

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

<p> Error to District Court of El Paso County. </p> <p>The facts are stated in the opinion.</p>

<p>A person convicted by a justice of the peace is given the right of appeal to the county court by General Statutes of 1883, section 3315, and the county judge is the proper person with whom to file the record on appeal, and to approve the appeal bond; section 1982 so providing in civil and section 2047 in criminal cases.</p>

<p>A federal court, out of which an attachment writ has been issued and served, has authority to grant permission to proceed in a state court by replevin against the marshal who executed such writ.</p>

C. Higginbotham and G. M. Barnes, against the appellant, John J. M. McEobbie, for the recovery of rent accrued upon a lease of certain real estate premises made by appellees to appellant.

In the court below the defendants -in error, S. O. Higginbotham and G-. M. Barnes, were plaintiffs, against John J. M. McRobbie, on a demand for rent due on a lease contract between them; in which action the plaintiff in error, Charles T. Limberg, filed his petition of intervention, which petition was dismissed by the court on motion of the said plaintiffs there.

This is an action brought by Pauling B. Sylvis against bis wife, Prances J. Sylvis, for a divorce on the ground of extreme cruelty. The allegations of the complaint, charging such cruelty, are contained in the fourth and fifth paragraphs, which paragraphs are as follows: “ Fourth.

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

This was an action by the appellee against the appellant for damages, claimed to have been occasioned by delay in delivering a telegram.

Defendants in error, Brown & Kiefer, had a judgment in the said district court against one John H. Anderson, and after execution had .been duly issued thereon they caused a garnishee summons upon said execution to be served upon the plaintiff in error, the city of Denver, under the provisions of chapter 46 of our G-eneral Statutes.

The plaintiff in error was convicted of petit larceny before a justice of the peace of Arapahoe county, and was sentenced to imprisonment in the county jail and to pay a fine. He appealed the case to the criminal court of said county. Afterwards, on September 5, 1881, he appeared there with his attorney, and upon his consent the court ordered the said case set for trial September 12th. Upon that day the plaintiff in error failed to appear, either in person or by attorney.

<p> Appeal from District Court of Larimer County. </p>

This is the same cause of action which was brought before this court on appeal from the district court of Clear Creek county, and decided at the April term, 1887 (10 Colo. 5), the parties also being the same.

The amended complaint alleges “that on, to wit, the 1st day of July, A. D. 1882, the defendants became and were indebted to plaintiff in the sum of $520 for and on account of certain chattels; that is to say, twenty-six head of cattle of the price and value of $20 for each one thereof, bargained and sold, and then delivered, by the plaintiff to and for the defendants, at the instance and request of the defendants; that for said cattle the said defendants, upon said delivery…

This was an action against appellant by appellee for the use and occupation or rental value of certain land from November 29, 1881, to the commencement of the action, being twenty-eight months, which was alleged to be of the value of $25 per month;-and for trees and fences, of the value of about $10, alleged to have been taken by appellant from the land.

Opinion rendered pursuant to the following request of the governor; To the Honorable Judges of the Supreme Court: Gentlemen • — • By section 3 of a constitutional amendment adopted November 2, 1886, it is provided that the supreme court shall give its opinion upon important questions, upon solemn occasions, when required by the governor. The general assembly, by an act approved thereof March 24, 1887, divided the state into nine judicial districts.

This is a contention between claimants of the same mineral lode or vein; the appellants, who were defendants below, calling it the “Golden Bell,” and the appellees the “Verde.” One of the appellants, Joseph Omar, with one Harry Clark, discovered the Golden Bell on February 24, 1883.

The appellant was carrying on a retail grocery business' at Denver, and her husband, W. S. Vescelius, had apparent charge and control of the same for her.

This action was commenced by Johnson, the defendant in error, April 26, 1884.

The appellant, the city of Boulder, a municipal corporation, undertook to supply water for irrigation to such of its inhabitants as might desire the same for that purpose. To carry out this undertaking it, in some measure, used the gutters at the sides of its streets as distributing ditches. The appellee, Mary O. Bowler, owned and occupied as a place of residence two lots in said city, fronting on one of these streets.

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

This action was brought by the plaintiff below, who is appellant here, to recover the possession of lot 24, block 27, in Case & Ebert’s addition to the city of Denver, and to recover damages for the detention and occupation of said premises.

This was an action to foreclose a mechanic’s lien, commenced by the plaintiff in error June 9, 1884.

This action was commenced before a justice of the peace in Boulder county by Moore & Dell, partners, against Clinton M. Tyler. It was appealed from there to the county court of Boulder county, and from thence to this court. Since the appeal to this court, Moore, one of the plaintiffs, and Tyler, the defendant, have died.

On the 16th day of March, 1883, the Goss & Phillips Manufacturing Company, a foreign corporation, filed a complaint in equity in the superior court of the city of Denver against the following defendants, to wit: The Tabor Fire Insurance Company, H. A. W. Tabor, O. O. Howell, Birks Cornforth and A. O. Fisk.

This was an action by J. S. Brown and J. F. Brown, creditors of the firm of D. D. Miller & Co-., against D. D. Miller, C. E. Boyles and J. St. Clair, former members of such firm, and Paul J. Sours and W. D. Schoolfield, to have a lien declared in favor of plaintiffs upon goods of the firm, taken by defendant Schoolfield, as sheriff, under a judgment confessed by defendant Miller in favor of defendant Sours. Relief denied, and plaintiffs bring error.

This action was brought by the plaintiff, the Travelers’ Insurance Company, against the defendant, the city of Denver, to recover the sum of $25,497.80, and interest, alleged to be due it upon certain city warrants, which warrants were set out in the complaint, and constituted ten separate causes of action, the averments in each cause of action being the same, except as to the date and amount of the warrant therein set out, and the date of the presentment thereof indorsed…

This action was commenced May 12, 1884, by Darwin Ray, the plaintiff in error, against the said Edwin H. Hiller and Nelson Hallock, partners in the banking business as Hiller, Hallock & Co. The action was founded upon four drafts of date March 19, 1884, drawn by the said Hiller, Hallock & Co. upon the American Exchange National Bank of New York, payable to the order of the said Darwin Ray, aggregating in amount $3,000. Garnishee notice was served upon the said Alex.

This is a proceeding to determine an adverse c1aii~n filed against an application for patent to a mining 1odà~- tion. The property involved is the Mountain Boy lode, situate in Ouster county. It was originally located on the 26th day of May, 1875, and the plaintiff below, August Strehlow, acquired title from the locatoi-s by conveyances and by judicial decrees.

<p> Error to District Court of Boulder County. </p>

<p>1. The holder of a certificate of purchase of state land, which recited that the purchaser, his heirs or assigns, would be entitled to a patent upon surrender of the certificate and payment of the balance due on the purchase price with interest, deposited the certificate with defendant, to whom he had given His note, and signed a memorandum that, if he should fail to pay the note, the certificate should be assigned to defendant, and afterwards conveyed the premises in trust to secure the payment of a note to plaintiff, who had notice that defendant held the certificate as security for his note. On default in payment of plaintiff’s note the trustee sold the premises to plaintiff, after which the certificate was assigned to defendant, who had notice of the trust deed and sale thereunder, and to whom a patent was issued. Held, that defendant held his title in trust for plaintiff, but that plaintiff could enforce a conveyance only on iiayrnent of defendant’s demand.</p> <p>2. In an action to compel a conveyance of land, where plaintiff obtains a decree which also establishes an equity in favor of defendant not recognized in the complaint, the costs should be borne by the parties equally.</p>

The appellees were plaintiffs below, and filed their complaint, June 24, 1884, in which they alleged ownership in certain undivided portions of the Aspen Mammoth and Vallejo mining claims; that they had leased the same to said Wilson and McMurchey for the term of one year, commencing October 17, 1883, and that the said Wilson and McMurchey were in possession of the said premises by virtue of the said lease; that they had failed to pay the rental according to the terms…

<p> Error to District Court of Chaffee County. </p>

<p> Error to Superior Court of Denver. </p>

On the 29th day of April, 1882, the defendant, William Barth, conveyed, by special warranty deed, certain premises to the plaintiff, Sarah J. Deuel. In consideration of such conveyance the plaintiff paid to defendant $1,500 cash down, and gave him fifteen promissory notes for $200 each, with interest at one per cent, per month, and made a trust-deed on the premises to secure said notes.

-Charles Lubbers, ' the appellee, brought this action against the appellant, the Colorado Electric Company, a corporation, to recover for personal injuries alleged to have been sustained by him by reason of the negligence of said company, and obtained a judgment for $5,500 damages, and costs of suit, from -which the appeal herein was'taken. The answer denies the allegations of the complaint in the main, and charges the plaintiff with contributory negligence.

<p>Where, in an action for services as foreman in a brick-yard, defendant counter-claimed for damages caused by unskilfulness of plaintiff, which plaintiff alleged was in wox-k which he was not hired to perform, and only one witness testified in support of the counterclaim, and lxis testimoxxy was denied by plaintiff, a finding for plaintiff cannot be disturbed.</p>

This was an action by the appellee, Colorado National Bank, resident of Arapahoe county, against the appellant, Theodore H. Thomas, resident of Gunnison county, upon a promissory note made and delivered at Gunnison, April 18, 1884, whereby the appellant, for value received, promised to pay to the order of Struby, Estabrook & Go., in ninety days thereafter, at the Iron National Bank, in Gunnison, the sum of $500, with interest from date at the rate of twelve per cent, per…

<p> Appeal from District Court of Lake County. </p> <p>Action by David K. Wall and John A. Witter against Emma D. Garrison and A. J. Quate. Judgment for defendants, and plaintiffs appeal.</p>

<p> Error to Superior Court of Denver. </p>

<p> Appeal from, District Court of San Juan County. </p>

This action was commenced by the appellee, Isaac S. Booco, against the appellant, R. A. Eckles, March 29, 1884, before a justice of the peace of Lake county, upon a complaint for the wrongful detention of certain real estate. Judgment was given for the appellee. Appeal was taken to the county court, and judgment for restitution of the premises was again given for the appellee, from which appeal was taken to this court.

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

<p> Appeal from Garfield County Court. </p> <p>This was an action brought by Wilson Cates against W. T. Reed and A. A. Reed. Judgment for plaintiff, and defendants appeal.</p>

<p> Error to District Court of Saguache County. </p>

<p>1. Defendant took two depositions of a witness, and at the trial read in evidence the second one. Selcl that, for the purpose of showing that the witness had made contradictory statements therein, plaintiff could read the former deposition in evidence, without laying the ordinary foundation therefor by interrogating the witness as to whether he had made such statements, giving time and place, etc.</p> <p>2. The court properly refused to give the following instruction: “Defendant asks the court to instruct the jury that plaintiff is bound by the statement contained in the deposition [the first one taken] read by him, as by reading the same he put it in evidence and vouched for its credibility.”</p> <p>3. Under the Code, section 180, in an action for the recovery of money only, it is a matter within the discretion of the jury as to whether they shall render a general or special verdict.</p>

The plaintiffs in error, J. B. Garland and O. O. Bischof, were arrested in April, 1884, and afterwards tried before the police court of the city of Denver, on the charge of having engaged in the business of ticket brokers in said city without license, contrary to its ordinance.

Dependant brought an action against plaintiff in error in justice’s court in Fremont county, and recovered a judgment therein in said court.

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

This was an action to recover for labor and services rendered, brought by W. T. James against Dennis Gale. There was judgment for plaintiff on the pleadings, and defendant appeals.

Action by Matthew Galdwell against the Colorado Central Railroad Company for negligently killing a cow, brought in a justice’s court, and removed to the county court on- appeal. Verdict and judgment for plaintiff,, and defendant appeals.

Action of replevin, brought by Maiy F. Watkins, as administratrix of the estate of L. E. Watkins, deceased, against T. Witcher. Verdict and judgment for plaintiff, and defendant appeals.

Action of replevin, brought by Mary F. Watkins, administratrix of the estate of L. E. Watkins, deceased, against Gregory Gross. Verdict and judgment for plaintiff, and defendant appeals.

This was an action by the Longmont Supply Ditch Company against Enoch J. Coffman, to recover the value of stock, and a sum of money alleged to have been fraudulently appropriated by defendant while acting as plaintiff’s secretary and treasurer. There was a verdict and judgment for defendant, and plaintiff brings error.

This action was one in support of an adverse claim by H. L. Whitney et al., plaintiffs here, who were plaintiffs below, claimants of the Jenny Hess lode mining claim, against W. H. Teichfuss et al., defendants, claimants of the Dutchman lode mining claim.

John McNally, plaintiff below, commenced his action in the county court.

The appellant, Philip Gerow, was plaintiff below and brought this action against the appellee, Nellie Gastello, to recover the possession of a piano or its value.

Action by the National State Bank of Boulder against the commissioners of Larimer county for money paid by plaintiff’s assignor at a tax sale. There was a trial to the court and judgment for plaintiff. Defendant appeals.

George L. Beckwith, the defendant in error, was plaintiff in the court below. It appears from the transcript of record that the plaintiff, on the day of the date thereof, made and delivered to George • C. Beckwith, one of the defendants below, his promissory note for money loaned, and also a trust deed on real estate to secure the same, which note is as follows: “$1,000.

Application for a Writ of Prohibition. Petition by the Loveland & Greeley Irrigation & Land' Company for a writ of prohibition against the district court of Larimer county and the Handy Ditch Company.

<p>The cattle sought to be replevied were bought by the defendant from a butcher, who had bought them from plaintiff’s herder, employed by her husband, who managed her business as his own. Defendant and the butcher each testified that the husband had told him that the herder was authorized to sell cattle, and this testimony was corroborated by that of other witnesses. Held sufficient to sustain a verdict for defendant, though plaintiff and her husband testified that the herder did not have that authority.</p>

Action brought before a justice of the peace by Samuel Lederer against E. C. Watson, constable, for the seizure of personal property belonging to plaintiff, and claimed as exempt. The plaintiff appealed to the county court from a judgment of nonsuit, and defendant appealed to the supreme court from a judgment of the county court in favor of plaintiff.

<p> Error to Superior Court of Denver. </p> <p>The facts are stated in the opinion.</p>

<p>1. 'A partner who admits that he made a Contract for cutting partnership hay, agreeing to pay for it himself and charge it to the firm, and-that, when the hay was cut, he was paying men employed on the ranch out of his own funds, the partnership having been in process of dissolution when the contract was made, may be sued alone for the services, though plaintiff knew of the partnership.</p> <p>2. The action being for services in cutting the hay, evidence of a transaction in which defendant sold a portion of the hay to plaintiff, and plaintiff resold the hay to defendant, and which is afterwards regarded by them as canceled, is improperly admitted; but, a judgment having been given for plaintiff for the services, without any charge for the hay resold, its admission is not reversible error.</p>

The plaintiff here was plaintiff below, and filed his complaint March 7, 1884, alleging that the said defendant was judge of the count) court of Clear Creek county from January, 1877, to January, 1881, and during all that time was ex officio clerk of said court, and accordingly acted.

Action by J. E. Crawford against the Denver & Eio Grande Eailway Company to recover double damages for the killing of a mare. Plaintiff obtained judgment below, and defendant appeals.

Susan Freeman, the appellee, was plaintiff, and George O. Burnham and Horace and Charles Emerson, appellants, were defendants, in the court below. The plaintiff, claiming a third interest in an irrigating ditch formerly known as the “Gilchrist, Baker and Emerson ditch,” and that defendants had disturbed her use thereof, brought this action to restrain future disturbance by them, and to recover damages for past injuries.

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

<p> Appeal from Superior Court of Denver. </p> <p>Action on contract by E. E. Cowan against Frank T. Cochrane. Judgment for plaintiff. Defendant appeals.</p>