Volume 12 — Colorado Reports

Replevin by John Mellor, John Johnson and Samuel B. Newell against Richard B. Williams, sheriff of Gilpin county. Judgment for plaintiffs, and defendant appeals. The facts are stated in the opinion.

This action was brought by several complainants to enjoin an alleged wrongful diversion and use of the waters of the South Swan and Middle Swan rivers by plaintiffs in error, Thomas H. Puller, G. L. Havens, Aloy L. Young, The Puller Placer Min. Co., and The Swan River & Georgia Gulch Min., Ditching & Pluming Co., and to recover damages for such wrongful diversion and use. The defendant in error has succeeded to' all the rights of the complainants in the original bill.

Action by Eoberfc S, and Maggie B. Wilson against the Denver, South Park & Pacific Eailroad Company for damages for negligently causing the death of plaintiffs’ son. Judgment for plaintiffs, and defendant appeals. The following are sections from the General Statutes of 1883: “Sec. 1030.

• The plaintiff in error, Elizabeth M. Solly, was plaintiff below, and brought this action against defendant in error, George W. Clayton, to recover the sum of $3,5Ó0 and interest thereon, and alleged in her complaint that she loaned one Phiueas W. Barnes $3,500, and that, to secure the payment of said money, said Barnes executed a trust deed to the defendant as trustee; and that defendant negligently, and without any authority from the plaintiff, executed and delivered a…

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

On the 7th day of February, 1882, appellee, Thomas J. Wilson, agreed to sell to appellant, Ledra R. Rhodes, certain real estate situate in Fort Collins, in this state.

This action was brought by the appellee, Eliza J. Miner, against the appellant, the Republican Publishing Company, for libel.

Original Proceeding — Application for-Mandamus. Petition by the people, at the relation of school district No. 2 of Lake county, against the board of county commissioners of Lake county for mandamus to compel respondents to levy a tax. Constitution of Colorado, article 10, éection 7, provides that the general assembly shall not impose taxes for the purposes of any municipal corporation, but may vest the corporate authorities with that power.

William M. Hamman was prosecuted for violation of a city ordinance prohibiting the sale of intoxicating liquors. A conviction took place before the police magistrate; but on the trial in the county court, to which an appeal had been taken, the ordinance under which the prosecution took place was held void, and the action was accordingly dismissed. To review the final judgment thus rendered the present writ of error was sued out by the city, which Ham-man moves to dismiss.

This action was brought in the county court of Lake county by S. iST. Dwight, appellee, against Sol Levy, to recover a money demand. Plaintiff recovered a judgment against the defendant in said court, and the defendant appealed to the district court of said county. ■ Pending said appeal, the death of said defendant being suggested, Babette Levy, the administratrix of the estate of said defendant, was substituted as party defendant.

This was a suit instituted in the district court of Chaffee county by Frederick A. Raynolds, as assignee of Hartzell Bros., to enjoin Robert Ray, as sheriff of that county, together with E. B. Jones and J. T. Blake, judgment creditors of Hartzell Bros., from selling certain real estate of the assignors on executions issued on judgments obtained by said creditors in the county court.

Action for damages by Henry Clifford against the Denver, South Park & Pacific Railroad Company. This is an appeal from an order of the district court granting a new trial under the third clause of section 2 of the act of 1885, page 350.

The appellant, Horace A. W. Tabor, brought suit in the district court of Lake county in July, 1881 against Dennis Sullivan, Peter Finnerty and Charles L. Hall, for the recovery of a small parcel of ground constituting the south end of the Matchless lode, situated in said county.

In the spring of 1881 the sixth general assembly passed two acts creating the counties of Washington and Logan, respectively, by carving territory therefor out of the county of Weld.

Plaintiff in error, Stephen Gr. Hudson, was plaintiff below. He was a member of the regular police force of the city of Denver on January 15, 1884. At that date plaintiff was removed from his said position upon the police force.

<p>1. Continuance —Absence of Witness —Affidavit.—Where there are no pleadings in a case, an affidavit for a continuance which alleges the absence of a material witness, and sets out the facts which such witness is expected to testify to, is not sufficient unless it also shows that issues will arise upon the trial upon which such testimony will be material.</p> <p>2. Principal and Agent — Liability of Agent to Third Party.— In an action to recover for work done there was evidence that the defendant had contracted with the plaintiffs merely as agent for another, and that plaintiffs knew of such agency. There was also evidence that the defendant had promised to pay plaintiffs for the work done by them out of his own money. Held, that instructions that, if the jury should believe that in making the contract the defendant assumed the character of a principal, he should be held personally liable, though in fact an agent, were not erroneous when taken in connection with another instruction that, if the plaintiffs contracted with knowledge of the agency, they were estopped from denying it.</p> <p>S. Same — Knowledge of Third Party.— In such case an instruction is correct to the effect that the defendant was not responsible to the plaintiffs for any contracts made as agent within the scope of his agency, provided the plaintiffs were aware of the agency, or that the defendant had not agreed to pay them out of his own money.</p> <p>4. Same — Agent Contracting as Principal.— But an instruction simply to the effect that, if the plaintiffs were aware of the agency at the time of the contract, they were estopped to deny it, and ignoring the evidence tending to show that the defendant had contracted as principal, is erroneous.</p>

<p> Appeal from County Court of Chaffee County. </p>

<p>Compromise — Action on Settlement.—Defendant, desiring to sell an interest in a mine, and to have accounts with her co-owners adjusted, consulted indiscriminately, with regard to the transaction, a firm of attorneys and an accountant, and a joint bill for their services was presented. The amount being objected to, a compromise was agreed upon, by which a certain sum was to be accepted in full for such services. Held, that the attorneys and accountant could maintain an action against defendant for the recovery of an unpaid balance of the sum agreed on.</p>

<p>Parties— Intervention.— The denial of a petition to intervene in an action brought to establish a trust in certain real estate in favor of plaintiff, by one claiming the legal title to and possession of a certain portion of the premises involved, is not error; it not appearing that the lights or remedies of the intervenor could be affected by a judgment between the parties to the suit.</p>

<p> Appeal from District Court of Clear Creek County, </p>

On Rehearing. In February, 1874, Thomas M. Sloan died in Arapahoe county, Colorado, leaving a wife, certain children and grandchildren him surviving. At the time of his death he was seized of certain lands in said county, and by his last will and testament he devised certain parcels thereof to his wife, children and grandchildren, respectively, leaving other parcels undevised.

For the provision of the constitution involved in this question, and an account of the previous legislation which affects it, see the case immediately following this.

The sections of the bill referred to that are submitted create a board of public works for the city of Denver, the members of which are to be appointed by the governor with the advice and consent of the senate. Such board is charged with numerous duties and endowed with extensive powers in relation to the expenditure of city funds, the payment and cancellation of certain outstanding city warrants, and the making of certain public improvements.

This was an action by appellees, E. A. Proctor and Charles Hull, against the appellant, the Union Pacific Railway Company, to recover for the killing of a cow upon the railway of appellant, and was commenced before a justice of the peace, where a judgment was given for appellees for double the value of the cow.

Smith, under, a written contract which provided for the performance of certain conditions by.the said appellee, in default of which the said Smith was entitled to have return of the goods. On the 5th day of February, 1884, the said George A. Smith assigned said contract to Maria H. Smith.

This was an action originally commenced on September 2J, 1883, before a justice of the peace by Benjamin P. Brasher, the appellant, against John Holtz, in which writ of attachment then issued, and a horse and buggy were seized thereunder the same day; whereupon the appellee, Catharine Holtz, claiming the same as her property, filed her affidavit for a trial of the right of property, as provided by section 88, chapter 62, General Statutes.

Action by L. Hanscombe against William Maudlin to recover one-half the cost of building a line fence. Judgment for plaintiff and defendant brings error.

Action before a justice of the peace by Frank M. Blaney against Daniel R. Sylvester, for the value of a wagon-box, and for work. A judgment for plaintiff was increased by the county court, and defendant appeals.

Appellants, Charles E. Lewis, Frank T. Scott, James G-. Kilpatrick, Isabella Brown, Eugene W. Alexander and Snow N. Alexander, were plaintiffs below, and in their complaint set out six causes of action against appellee, Paul T. Hughes, but the fourth cause of action was dismissed at the trial.

Appellant, Lucia Buddee, who was plaintiff below, brought this action against Michael Spangler, the appellee, to recover the possession of certain personal property, or the value thereof, and alleged in her complaint that on the 28th day of February, 1883, she was the owner of said property; that defendant on said day wrongfully took said property from her possession; and that he unlawfully withholds and detains the possession of the same to plaintiff’s damage of $1,000.

Appellee brought his action in the court below to enforce a mechanic’s or laborer’s lien against the property of the appellant, under the act of 1881, and by his complaint made the following parties defendants: Thomas B. O’Hara and Charles Schroeder, William H. Oox, C. W. Oollins, and the Greeley, Salt Lake & Pacific Eailroad Company; — alleging that the defendant company was the owner of a certain railway; that it let a contract for the grading of a portion of its road-bed…

Appellants, J. L. Bailey, administrator of the estate of John Witter, deceased, and Ben Brewer, were plaintiffs below, and for cause of action against the defendant alleged that on the 1st day of February, 1884, and at the time of bringing this action, they were the owners in fee-simple of lots 21 to 32, inclusive, in block 9, in Hunt’s addition to the city of Denver, in the county of Arapahoe and state of Colorado; that at the time plaintiffs acquired title to said lots the…

The plaintiff, John Kennedy, and one McMonagle were claimants of a certain stone quarry, which had been opened upon government land situated in the county of Larimer. They put the appellant, Andrew Brown, into possession, and procured him to file upon said land in the United States land office a pre-emption claim for their use and benefit.

Action by Edmund Johnson against Erastus P. Hal-lack and Charles Hallack for injuries alleged to have been received by defendants’ negligence. Yerdict and judgment for plaintiff, and defendants appeal..

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

Henry Kellogg appeals from the decision of the county court declaring his competitor, T. J. Hickman, elected county treasurer of said county.

Original Proceeding for Injunction and other Relief. The petition presents matters of chancery jurisdiction, and prays that this court will entertain the same as an original proceeding: It is shown by the complaint that the relators were the owners of certain lands situate in the counties of Arapahoe and Jefferson, and that said lands were of great value for agricultural and residence purposes, and that the value of said lands for agricultural and residence purposes depends…

Motion to strike out bill of exceptions. When the bill of exceptions in this case was prepared the presiding judge was absent from the state. It was tendered to his associate upon the bench (there then being-two district judges) within the time fixed by order for signing and sealing the same. The judge to whom the bill was tendered marked the date of such tender, but declined to sign and seal the same.

The resolution submitted is as follows: “Resolved, that the opinion of the supreme court be respectfully requested upon the question of whether or not the internal improvement fund arising from the sale of land donated to the state under the act of congress of September 4, 1841, can be used for building reservoirs for the storage of water for the purpose of irrigation and domestic uses, or for the purpose of changing the channels of streams so as to better control the water…

The resolution submitted by the senate is as follows: “Resolved,, that the supreme court be requested to render an opinion to the senate of the seventh general assembly as to whether or not the moneys belonging to the internal improvement fund of the state may be lawfully appropriated for the construction of reservoirs therein for the storage of water for the purposes of irrigation and domestic uses or for the purpose of changing the channels of streams so as to better…

Mott M. Crawford was convicted of murder in the second degree, and sentenced to the penitentiary for the period of twenty years. It appears that while he was engaged in a controversy and affray with one. Gideon Pratt, a shotgun in his hands was discharged, killing the son of said Pratt.

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

In August, 1881, Robert Standering, appellee’s intestate, and plaintiff below commenced this action against Peter 0.

This action was brought by the appellees, Richard B. More and Thomas Howlett, under the eminent domain act, for the purpose of securing the right to enlarge a ditch over intervening land of appellant, and to become joint users with him of such enlarged ditch.

Action by Philip W. James against Hannah Metzler for an account and redemption under a mortgage of merchandise. Edward H. Cadwell, one of the mortgagors, refused to join as plaintiff, and was made defendant. Decree for plaintiff, and Mrs. Metzler appeals. The facts are stated in the opinion.

The following preamble and resolution from the house of representatives are submitted: “Whereas, on the 1st day of March,’1889, upon the reports of the majority and’minority of the committee on public buildings, on house bill No. 238, a doubt was suggested whether the passage of said bill would release or affect any or all contracts heretofore entered into by the board of capitol managers, under the acts of 1885, and particularly the contract between said board of capitol…

RESOLUTION. “Whereas, senate bill Ho. 45, as amended, has passed both houses of the general assembly, been signed by the governor and become a law; and whereas, doubts have arisen as to the construction of said act, and another bill is now pending in this general assembly, whereby the seeming contradiction and defect of said act may be corrected if necessary; and whereas, the subject is one of great importance, the annual town elections affected by this act being required to…

This action was brought to recover damages for an assault and battery alleged to have been committed upon the appellant, George W. Schwenke, by the appellee, John W. McLean.

This was an action upon a forfeited recognizance. One George E. Kathan was taken into custody under a warrant duly issued, and brought before Jay, a justice of the peace in Bent county, upon the charge of larceny. The holding of the preliminary examination was postponed, upon application of the people, for the period of ten days. It seems, however, that- bail for Kathan’s appearance at the expiration of the ten days was fixed by the justice in the sum of $1,000.

This action was commenced before a justice of the peace in April, 1883, by the appellee, William Nordloh, and a summons was issued in statutory form and duly served on the appellants, Henry M. Behymer and St. Clair Ross. The justice of the peace did not record in his docket the nature of the debt sued for, but did note that the amount was $80. At the time fixed for trial, plaintiff failing to appear was nonsuited, and thereupon the plaintiff appealed to the county court.

This action was originally commenced before a justice of the peace by Charles 0. Post against Theodore King, on the 4th day of January, 1886, and afterwards taken into the county court by appeal. The action is based upon an account extending from the month of February, 1883, to March 25, 1885, and amounting to the sum of $752.05, upon which amount appellee gave credits amounting to $511.39, leaving a balance of $240.66.

RESOLUTION. “Whereas, the passage of house bill 218, and the approval thereof by the governor, has caused grave doubts as to when the… Held: therefore, be it resolved by the house of representatives of the seventh general assembly of Colorado that the following question, accompanied by a copy of said H. B. 218, be submitted to the supreme court of this state with a request for an early reply: “question. “What is the effect of H. B. No. 218 upon the March, A. D. 1889, term…

Action for damage to crops done by trespassing cattle, brought by G. N. Gaut against Emmett Nuckolls. Verdiet and judgment for plaintiff, and defendant brings error.

On September 1G, 1882, Morril & Liggett made a written contract with the appellant, Charles A. Smith, agreeing to sell and deliver to him three hundred thousand feet of lumber within ninety days at $15 per thousand; the same to be so delivered upon written bills or orders specifying the particular kind and quality desired.

The appellees, James Buchanan, Peter Westberg, George W. Ward and Hugh McGowan, brought this action in the court below against the appellant, William H. Price, alleging in their complaint, in substance, that defendant, as owner of a certain lode mining claim, employed them to sink a shaft from the third level of said lode to the depth of two hundred feet, and to timber the same whenever necessary, and to excavate a chamber in said level at the top of said shaft, to make room…

By the constitution of this state, mines and mining claims bearing precious metals, except the net proceeds .and surface improvements, were exempted from taxation until the year 1886. At the session of the legislature following, viz., in 1887, a law was adopted providing for the taxation of such mines. In pursuance of this act mining property in Lake county, including that belonging to the Iron Silver Company, was duly assessed and taxes levied thereon.

Phillip Filbeck, being the owner on the 8th day of March, 1883, of certain premises situated in the city of Denver, conveyed the same on said day by deed of trust to Vincent D. Markham, as trustee, to secure the payment of a certain note made by said Filbeck to Jacob Gregory, the appellant herein, for the sum of $5,000, with interest thereon at twenty per cent, per annum, due and payable every three months.

The appellant, Benjamin P. Brasher, brought his action against the appellee in the court below, alleging in his complaint, in substance, that the defendant was a corporation duly organized and doing business as a common carrier and warehouseman of goods and chattels for hire at all the times mentioned in the complaint; that the plaintiff, in partnership with his brother, under the'firm name of Brasher Bros., on or about the 19th day of April, A. D. 1881, received from their…

The appellant, Maggie L. Lord, brought this action in the district court to recover damages against the appellee on account of the death of her husband, Carlile Lord. The defendant company was engaged in the business of smelting and reducing ores, and in connection with its business owned, controlled and managed numerous railroad tracks, cars and engines for the purpose of delivering ores, coke and other material to its smelting works.

The matter submitted to the supreme court for consideration appears in the communication presented, as follows: “Whereas, it is a mooted question whether the passage of bill No. 319, as amended, would so take from the hands of the state treasurer the funds of the state as to relieve said treasurer, and the sureties upon his official bond, from liability to the state for the loss of any funds deposited in accordance with the provisions of said bill; and whereas, the question…

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

<p> Appeals from District Court of Pueblo County. </p> <p>Two actions of replevin by William H. Price against the Denver & Eio Grande Eailway Company. Judgments for defendant, and plaintiff appeals.</p>

The appellee here, Charles A. Molson, was plaintiff below, and recovered judgment on verdict.

The appellee, B. H. Osborn, brought this action against the appellants, V. and L. E. De Wein, in the county court of Pueblo county.

This action was brought by appellees, Jeremiah Kirtley, Silas 0.

The parties to this action were married in 1869. They lived together as husband and wife for about sixteen years, during which time five children were born to them, four of whom, aged fourteen, seven, six and four years, respectively, were living when this action was commenced and tried. The parties were without means at the time of their marriage, but had acquired considerable property by their joint efforts before they separated.

October 11, 1884, Urban Bros., merchants, assigned, and delivered their property to the appellee, William F. Maguire, for the benefit of their creditors. October 14th the appellants, Joseph T. and Emma R. Oornforth, caused the seizure of a part of said property under a writ of attachment issued in the action brought by them against the said Urban Bros., which property was afterwards sold thereunder.

It appears from the undisputed statements of the pleadings that the defendant, being appellant here, in the years 1878 and 1879 constructed a canal extending from the Platte river to its water-works, and in February, 1S79,. it commenced proceedings in the county court of Arapahoe county to condemn a right of way through, across and over certain lands of the plaintiff for the construction of'certain canals, lakes and reservoirs, which lands were a part of the lands of the…

.Alt, the facts necessary to an understanding of the decision are sufficiently stated in the opinion, save the provisions of the school law mainly relied upon. These provisions read as follows: “ Sec. 3067.

The resolution and question submitted to the court read as follows: “Whereas, senate bill No. 65 proposes to materially increase the fees and emoluments of the several district attorneys in the state: Therefore be it resolved, that the supreme court be requested to answer the following question: Will the provisions of senate bill No. 65 apply to the district attorneys now in office?” The constitutional amendment adopted in the fall, of 1886, and construed in the opinion of…

Petition for Mandamus. This is an original proceeding, instituted for the purpose of obtaining a writ of mandamus to compel the defendant, P. P. Quinn, as county judge and acting clerk of the county court of Eagle county, upon the payment of the legal fees therefor by these petitioners, to accept and file a certain appeal bond and certain notices of appeal in a case lately tried' in said county court, wherein James B. Taylor obtained a judgment against these petitioners for…

Appellee, A. M. Williams, while passing along the sidewalk on one of the streets of Denver, stepped upon the cap covering a coal-hole, which, owing to its defective condition, turned under his weight and precipitated his body partially into the opening thus made. Without fault on his part he received severe and painful injuries,which, it is averred in the complaint, will render him a cripple for life.

This action was brought by the plaintiff in error, Niels Larsen, who was plaintiff below, against Peter W. Breene and George W. Trimble, for the purpose of procuring the cancellation of a certain .note and a trust deed given to secure the same. It appears from the pleadings and evidence that in April or May, 1883, the plaintiff obtained a deed of trust, together with an option for purchase and lease upon the Crown Point and Pinnacle mines, from Nelson Hallock, the owner.

This action involves the question of ownership and right of possession to a number of railroad cross-ties.

The appellee, John E. Petersen, as plaintiff below, commenced this action against the appellant, Thomas B. Townsend, as defendant, alleging in his complaint that the plaintiff and defendant had been, and still were, co-partners in the mercantile business in the town of Montrose, Colorado, and praying that certain real estate of which defendant held the legal title might be declared to be partnership property, for a dissolution of the co-partnership, for an accounting, and…

Appellee, the Colorado Seminary, was duly incorporated for educational purposes on the 5th of March, 1864, by an act of the territorial legislature. (The sections of this statute involved in the present case sufficiently appear in the opinion.) The corporation thus provided for accepted the provisions of the charter, was duly organized, and has been and is now a prosperous institution of learning.

This was an action by Ex-Gov. William Gilpin, plaintiff below, against his wife, formerly Mrs. Julia P. Dickerson. The parties were married in 1874. At the time of the marriage plaintiff was a bachelor, about fifty-nine years of age, and defendant a widow, about thirty-eight years of age, with four children,— one boy, about eight years old, named Sidney, and three girls, aged about four, six and ten years, respectively.

This is an action for damages for personal injuries received by the appellee, Jerry Driscoll, who was plaintiff below, while in the employ of the appellant. Appellant was extending its line of railroad, and for that purpose had placed one Manly in full charge of the track-laying. Appellee was hired by Manly, and was under his directions and control at the time of the accident. The car upon which appellee was riding at the time was a small flat-car, without brakes.

In February, 1860, the governor and legislative assembly of Kansas territory passed an act constituting certain persons and their legal associates a body corporate and politic, under the name of “The Capitol Hydraulic Company,” with power, inter alia, to sue and be sued, to have perpetual succession, etc. One section of the act was as follows: ‘ ‘.Sec. 2.

Action for claim and delivery of personal property. Evidence was introduced upon the trial below for the purpose of showing that the goods in controversy were obtained from the appellee, 0. E. Waggner, who was plaintiff below, by the false and fraudulent representations of one Charles Marzyck, and that the appellants, Joseph L. Benesch et al, who subsequently obtained the said goods from Marzyck, were not bona fide purchasers for value.

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

Charles Burns, the plaintiff below, in January, 1884, deposited in the First National Bank of Leadville the sum of $3,300, and received from said bauk its certificate of deposit, payable to said Bums, or his order, upon return of the certificate properly indorsed. Plaintiff, then having a bank account with the German National Bank of Denver, defendant below, indorsed and sent the certificate to said defendant bank, with a letter, as follows: “Leadville, Jan. 15, 1884.

<p>General Verdict — Failure of Proof.— Where plaintiff sues on. two causes of action, but produces no evidence to support the see- • ond, a general verdict for the gross amount sued for cannot be sustained.</p>

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

This action is in the nature of ejectment. It was brought by Charles Gf. Cheever against Joseph A. and Mary A. Minton to recover the possession of certain real property in the city of Denver. The verdict and judgment were in favor of defendants, and the present appeal was taken to review this judgment.

This is a contest between two individuals who constituted the parties defendant below. The action in which the questions upon this record arose was instituted in the county court by A. B. Sullivan and Charles D. May, plaintiffs, against Fred. A. Marriott, defendant.

On September 1, 1884, suit was begun by Emma P. Vonach in a justice’s court of Arapahoe county to recover from John Crisman and J. M. Tanner the sum of $145. On September 4th a writ of attachment was issued in that case and delivered to the appellee, Samuel 0. Dorsey, for execution.

<p>1. Pbblic Lands — Possessory Rights and Remedies.— Tho possessory rights of settlers upon the public, lands of the United States are protected by state statutes under remedies therein provided. When these rights are unlawfully invaded, resort must be had to the appropriate statutory remedy.</p> <p>2. Trespass—Removal oe Trees — Replevin.— In case of trespass on government land claimed to be in the lawful possession of a settler thereon, and the felling and removal therefrom of trees, the settler cannot maintain an action of replevin for the trees taken, it not being among the statutory remedies given for the invasion of such rights.</p>

This action was commenced by the board of county commissioners of Jefferson county against the board of county commissioners of Park county to recover moneys expended in the care and burial of a pauper resident of Park county, one George Oornett.

This action was brought by Marie Guiraud against John Harvey to recover a balance of $764.90, claimed to be due under a verbal contract for a quantity of hay. Plaintiff also, as a second cause of action, averred a further demand of $200, being the amount remaining due her from defendant upon an accepted order.

It appears from the record in this case that October 15, A. D. 1885, appellee, Augustus R. Gumeer, recovered judgment against appellant, Gabrial F. Rule, and one Thomas N. Richards, as copartners, for the sum of $611.95; that execution was issued the same day, and delivered to the sheriff of that county, and on November 20, 1885, was wholly unsatisfied.

This was a case submitted to the district court in June, 1885, upon an agreed statement of facts showing that the city of Pueblo was at the time of such submission, and at all times to which the statement relates, a duly organized city of the second class, under an act of the general assembly of this state relating to municipal corporations, approved April 4, 1877, and the acts amendatory thereof, and. that the defendant, Christopher Wilson, was at the time of such…

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