Volume 13 — Colorado Reports

<p>1. Written Contract —Oral Testimony — Province of Jury.— Where the terms of a contract under which manual labor was performed are in dispute, the defendant producing in evidence a written contract which he testified was the one under which the labor was performed, and that it had never been changed, and which did not contain the stipulation alleged and relied on by the plaintiff, and the plaintiff was permitted, without objection made or exception reserved, to introduce oral evidence as to the real terms of the contract entered into by the parties, it was proper for the court, under the circumstances, to submit the question in dispute to the jury upon the whole testimony, and it was the province of the jury to determine from the weight of the evidence what were the real terms of the contract.</p> <p>S. Defects of the Record on Appeal —Assignments of Error Not Reviewable. — Under the act of April S3, 1885, instructions not presented by the abstract of the record cannot be reviewed on appeal, or assignments of error based thereon considered. In such case the presumption obtains that the case was properly submitted to the jury, and if the verdict does not appear to be against the law and the evidence the judgment must he sustained,</p>

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

The following is the entire abstract, bill of exceptions and assignment of error in this case, viz.: “December 24, 1885, case of McClellan v. Hurd dismissed in supreme court. January 18, 1886, remittitur issued by supreme court. January 20, 1886, remittitur filed in district court, and writ of possession issued. January 21, 1886, writ served, and Hurd placed in possession of the property. January 22, 1886, McClellan files motion to recall writ, and for writ of restoration.

This proceeding was instituted under section 315 of the Civil Code of 1883, in the name of the people, upon the relation of Frank S. Byers, for the purpose of procuring a dissolution of the defendant corporation. The facts alleged are similar to those stated in the case of Byers v. Rollins, post, p. 22. The court below sustained a demurrer to the complaint, and entered judgment for the defendant, and the plaintiff brings the case here for review by appeal.

James L. Duckett, who was plaintiff below, indorsed three certain promissory notes, of which his son and two other men were co-makers. As frequently happens in such cases he signed the instruments as a fourth comaker. These notes were due in nine, twelve and fifteen months, respectively.

This action was brought in the court below by George W. Giggey against William T. Newell to recover damages arising from an alleged tort committed by Newell. This tort consisted in the wilful driving away of plaintiff’s bull from its usual range, resulting, as is alleged, in damages to plaintiff amounting to $670. The cause was tried to a jury, and verdict and judgment were given for plaintiff in the sum of $35. To reverse this judgment the present appeal was taken.

The gist of appellee’s complaint is that on or about March 14, 1885, he left a team, wagon and harness with the appellants, upon a written agreement to sell said property for $350; that at the same time they advanced $100 to the appellee on account of said $350, and agreed to send him at Challis, Ouster county, Idaho, the remaining $250, less a commission of $10, within three weeks next after said March 14, 1885.

<p>Corporations — Officers — Rights of Stockholders.</p> <p>1. Action against Officers of a Corporation for an Account — When Corporation Must be Made a Defendant.— Where officers of a corporation have assets in their possession belonging to the corporation, the corporation and not the stockholders is the proper party to bring an action to compel them to account, unless it is made to appear that it is necessary for the stockholders to bring the action in order to prevent a complete failure of justice. In the latter case the corporation must be made a party defendant.</p> <p>% Action by Stockholders to Oust Officers — How Regularity of Their Election May be Shown.— In an action by stockholders against the officers of the corporation to oust the latter from office, the plaintiffs claimed that the capital stock had been illegally increased. It appeared that defendants were the legal officers prior to a meeting of stockholders in 1885, and had managed the affairs of the corporation since its ereation. At the meeting in 1885 defendants received votes representing not only a majority of the capital stock after the increase, but also a majority of the original issue. Held, that the officers were legally elected.</p> <p>8'. Unauthorised Increase of the Capital Stock of a Corporation Does Not Invalidate the Original Stock. — In an action by certain stockholders against the officers and other stockholders of a bridge corporation to cancel all the stock held by defendants, it appeared that the cost of the bridge was estimated at $3,000, and that the capital stock was limited to this amount, equal to sixty shares. The actual cost was $7,000, and to provide for the difference the stock was increased to the latter amount. No mátafides on defendants’ part was shown, and the only irregularity consisted in the failure to have the articles of incorporation amended so as to permit the increased issue. Plaintiffs alleged that they purchased the certificate of a stockholder on his representation that the certificate was for all the capital stock, and that they purchased after having examined the articles in the secretary of state’s office, showing that sixty shares was the entire stock. It appeared that defendants had a majority of the original capital stock, and plaintiffs obtained a majority of the increased issue. Held, that the subsequent issue did not invalidate the original issue of stock, and, as cancellation of all the stock in defendants’ hands was alone sought, such cancellation was properly refused.</p> <p>4. When Purchasers of the Stock of a Corporation Put on Inquiry.— It appeared that, at the time of the purchase of the certificate by plaintiffs, it was well known that the principal defendants were the managers and directors, and had been such managers and directors since the corporation’s organization, and that plaintiffs purchased with knowledge of such facts, and the further fact that under the law none but stockholders could be directors of a corporation. The certificate which plaintiffs purchased was not under the seal of the company, and was not signed by its president. Held, that plaintiffs were put on inquiry, and reasonable inquiry would have disclosed the condition of affairs as shown by the books of the corporation; and that, under this aspect of the case, plaintiffs were not entitled to a decree of cancellation.</p>

In January, 18U, one Cowles, being the owner iii fee of certain premises in the city of East Pueblo, executed thereon, to secure the payment of a promissory note bearing even date therewith, a certain trust deed to Charles E. Cast, as trustee.

The appellee, as plaintiff, filed his complaint against the defendant in the court below, alleging ownership and right of possession to certain grain, which he claimed was unlawfully taken and' wrongfully withheld from him by the defendant after demand. The value of the property was stated to be $400.

Two suits, in the nature of actions in trover, brought by Horace A. W. Tabor, David H. Moffatt, Jacob J. B. Du Bois, James G. Blaine and Jerome B. Chaffee, — ■ the first against Eddy, James and Grant; the second against the Omaha & Grant Smelting & Refining Company, in which it appears the business of the former defendants was merged. ■ Plaintiffs alleged that they, with Charles E. Rider, were the owners and in the possession of the mine in the county of Lake known as the…

The Eifth General Assembly adopted the following statute: “ That from and after the passage of this act all corporations, either domestic or foreign, organized for pecuniary gain under any of the provisions of chapter 10 of the General Laws of the state of Colorado, shall pay to the secretary of state, upon the issuing of the certificate, as provided in said chapter, the sum of $10: provided, .the par value of the capital stock shall not exceed $100,000; but, in case the…

This suit was first brought by appellees against the appellant Isaac King and H. L. King in the county court. Complaint filed October 7, 1884, counting on two promissory notes, each for the sum of $500, bearing date May 14, 1884, payable respectively in three months and seventeen days, and four months and seventeen days, after date, to William Rea or order, with interest at ten per cent, per annum, and purporting to have been executed by appellant and H. L. King.

<p>1. Trespass — Sufficient Allegations of Possession, Entry and Damage.— In a suit against a railroad company for damages for taking a portion of a mining claim, and cutting timber thereon, a complaint showing an entry without permission on a mining claim in plaintiffs’ possession, and the doing an injury to the soil and timber, sufficiently avers possession, entry and damage.</p> <p>2. Complaint — Averment of Citizenship. — In such case, where the complaint contained no averment of citizenship on the part of plaintiffs, but tbere was no issue, objection or specific assignment of error in that regard by defendant below, it will not be considered on appeal.</p> <p>,8. Location Certificate — Description of Claim.— A location of a mining claim was by reference to certain mountain peaks,” without naming or describing them. The claim was further described as on a river near a certain city, and the position of a shaft on a ■ certain creek was designated with the bearings of a fall on said creek from the shaft. The certificate showed the state, county and mining district where located. Held, it sufficiently complied with Revised Statutes of the United States, section 2824, requiring the record of a mining claim to contain such a description with reference to some natural object as would identify the claim.</p> <p>4. Trial — Substitution of Receiver for Defendant.— Where a receiver for defendant was substituted for defendant in such action without objection, it was not error to refuse to strike out bis name during the trial.</p> <p>5. Evidence — Proof Required to Show Boundaries of Conflicting Railway Grant. — Act of congress of June 8, 1872, gave the Denver & Rio Grande Railway Company a right of way over the public domain, but did not describe in detail the routes of the main line and branches. Held that, in order to determine whether plaintiffs’ mining claim was within the limits of the right of way, the charter or some other evidence in relation to the location of the road besides the act of 1872 must be produced.</p>

This action was originally commenced in the district court to recover from appellants, J. I. Coleman, If. O. Coleman, J. Coleman, E. S. Orr and A. W. Snyder, a certain portion of the Crystal lode, claimed by appellees, C. E. Davis and John H. Mitchell, as a part of the Lilly lode, the two locations being in conflict. Subsequent to filing the complaint and answer, appellants asked leave to amend their answer, so as to correctly describe the area in conflict.

<p>1. Pleading — Contract — Failure to State a Cause of Action — Demurrer,— A complaint alleging a contract to perform labor in a certain year, for a gross sum of money, is bail on demurrer which fails to allege what the plaintiffs contacted to do, or how much work was to be done, or when it was done, or its value. Such a complaint lacks almost every material allegation necessary to show a cause of action.</p> <p>2. Same —Joint Defendants — No Contract Alleged as to One.— ' In the case of joint defendants, when the allegations of the complaint as to one are too indefinite to show he was in any way connected with the contract sued on, the-complaint should be dismissed as to him.</p> <p>8. Variance between Allegations and Proof.— A contract to perform an annual assessment on a mining claim for $100 is not sustained by evidence that plaintiffs were to work a certain number of days on said claim.</p>

Action to determine adverse mining claim, brought by Edwin E. Thomas, Cyrus W. Pusher and John Taylor against Robert .Chisholm, Mary J. Riggins, H. E. Chapman and John P. Hudgent. Verdict and judgment for defendants, and plaintiffs bring error.

<p> Appeal from Hinsdale Comity Court. </p>

The Pacts in this case necessary to a correct understanding of the opinions are sufficiently stated therein.

Motion to dismiss appeal. On the 7th of November, 1888 (the issues in this cause having been jireviously made up), plaintiffs, Wheeler and Hagerman, by their attorneys, directed the clerk of the court below to enter an order dismissing the same, which was done. On the 23d of November following the attorneys appeared in behalf of the respective parties, and by consent the order of dismissal was vacated, and the cause reinstated upon the docket.

Action for damages to stock, brought by D. K. Stern-berg against the Union Pacific Railway Company. Verdict and judgment for plaintiff on appeal to the county court, and defendant appeals.

<p>1. Fraud — Violation of Trust and Confidence. — Fraud, in .an equitable sense, includes all acts, omissions and concealments which involve a breach of legal or equitable duty, as the violation of trust and confidence reposed in business relations, whereby an undue and unconscientious advantage is taken. .</p> <p>2. Misrepresentation of Fact — Remedy.— Where a misrepresentation of fact, of a material nature, is made to a person, who, relying upon the supposed truth thereof, is induced, to his injury, to enter into a transaction which it is reasonable to infer he would not otherwise have entered, it affords ground for setting aside the whole transaction; and it is no defense that the person to whom the misrepresentation was made might have learned of its falsity before acting thereon. Nor is it material in such case whether the misrepresentation was fraudulently or mistakenly made. Unless it appears that the party claiming to have acted thereon 'actually knew it to have been untrue the result will be the same.</p> <p>3. Violation of Confidential Business Relations — Relief in Equity.— Courts of equity do not require positive and express proof of fraud, but deduce evidence thereof from circumstances which afford strong presumptions. Accordingly where a woman unskilled in business matters, and possessing a limited knowledge of the English language, is possessed of a large body of lands, the descriptions of the several parcels whereof, as designated in the public surveys, she is not familiar, is induced to execute a deed covering, several hundred acres, upon a wholly inadequate consideration, to a man skilled in business and land transactions, who had for years acted as her confidential adviser in respect to her lands, and who subsequently admitted that the deed included tracts which he had falsely represented to her were not included, the woman also testifying that the quantity conveyed far exceeded .the quantity intended to be conveyed, and that the price obtained was much less than she was led to suppose she was to receive, it is proper' for a court of equity to set aside the whole transaction as fraudulent throughout.</p>

Plaintiffs in error were indicted, for several criminal offenses at the January, A. D. 1886, term of the district court of Arapahoe county, and the cases thereafter transferred to the criminal court of said county for further proceedings according to law.

<p> Error to Criminal Court of Arapahoe Countij. </p>

Louis Mitchell brought his action of replevin in the state court, claiming ownership and right to the possession of the goods and chattels described in the complaint. Walter A. Smith, among the defenses set up in his answer, avers that he held the property as United States marshal, by virtue of levies under writs of attachment duly issued out of the circuit court of the United States for the district of Colorado, in the two certain suits brought against one Max Mechlenburg.

<p>1. Res Adjudicata, when Higher. Authority than Stare Decisis.— When the law governing-a case has been once declared by the opinion of an appellate court on a direct appeal or writ of error, such opinion, on the retrial of the same case upon the the same state of facts, is higher authority than stare decisis; it is res adjudicata, so far as the particular action is concerned.</p> <p>2. What Rights Necessary to Protect by Adverse Proceedings — Cross-veins.— A time cross-vein is excepted out of the grant of the patent by virtue of section 233G, Revised Statutes of the United States. And, whether a junior or a senior location, it is not affected by failure to adverse, except at the point of actual lode intfersection. But section S344does not, exproprio vigore, reserve out of the grant rights other than cross-veins acquired prior to the act of 1873, but secures the protection of such rights to those who avail themselves of the adverse procedure prescribed by the act itself.</p> <p>3. Meaning of Cross-lodes.— The crossing of lodes does not mean the crossing of two patents, but the actual crossing of the two veins themselves.</p> <p>4. How Veins Must Unite to be Within Exception op Section 2336. Veins which unite but do not cross each other are within the exception of section 2336 when they unite on the “dip” or in their downward course; but not when they unite on the “ strike,” or on their horizontal extension. The word “below,” in section 2336, does not mean “ beyond.”</p> <p>5. Congressional Design to Have All Conflicts Adjusted by Adverse Proceedings.— It was the design of the act of 1882 (sections 2325, 2326, R. S. U. S.) to have all conflicts, so far as practicable, settled by the issuance of -the patent through the adverse proceedings therein provided for.</p>

<p>1. Freight Charges — What Does Not Constitute an Unreasonable Discrimination.— Under section 6, article 15, oí the constitution, forbidding “undue or unreasonable discrimination” by railroad companies in freight charges, a contract to carry freight for a party at a specific rate, being less than its published schedule, is not void as being an unjust discrimination and against public policy, in the absence of evidence that such special rate is an exclusive privilege.</p> <p>2, Same — Requirements oe the Law.— Freight charges must in all cases be reasonable to shippers, and when the circumstances and conditions are the same they must likewise be equal.</p> <p>S. What is Prohibited. — The fundamental law prohibits the granting of privileges to one shipper, tending to give him a monopoly to the prejudice of others engaged in like pursuits. Contracts creating such privileges are against public policy and void.</p> <p>4. Rebates or Drawbacks Not Necessarily Discriminations. — A railroad company may contract to refund to a shipper a certain portion of the schedule rates as “rebates” or “drawbacks,” and wdien made without reference to the rates charged other shippers such contract makes no discrimination between parties.</p> <p>5. Power oe Receiver to Contract — Complaint — Demurrer.— Where it is alleged in a complaint that the business of a railroad company was controlled and managed by a receiver at the time a contract was entered into with the plaintiff, a contention on demurrer to the complaint that the receiver had no power to make the contract is without merit, the want of authority not appearing. It cannot be assumed that the contract was made in violation of his authority until his authority in the premises is shown.</p>

The plaintiff, Ira Austin, filed his complaint in the district court of Boulder county, showing the following facts: The Aggregation Company of Colorado was a corporation organized March 13, 1884, under the laws of this state, doing business in the county of Boulder. The defendants Bartleson, McKee and Rouse impleaded with the appellees, were directors of the company from its organization to the date of the complaint, January 28, 1886.

Appellee, as plaintiff, filed his complaint in the court below in substance alleging: (1) The corporate capacity of the plaintiff. (2) That on September 20, 1880, one W. Willet Rose made and executed the following note: “ $1,000. Georgetown, Colo., 20th Sept., 1880.

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

On Saturday, April 12, 1884, Mrs. E. Grout was engaged in the hardware business at the city of Denver; that is, the same was being carried on in her name. John H. Grout, her husband, had entire control thereof, with full power and authority to sign her name, make contracts and otherwise transact’the same.

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

<p>1. Statutory Rights — How Enforced.— Proceedings under the act of eminent domain are purely statutory, and the statute must be strictly pursued.</p> <p>2. Requisites of Petition for Condemnation of Lands — Result of Failure to Observe Substantial Requirements. — A petition for the condemnation of lands in the county court should show the value of the property sought to be taken or the amount involved in the proceeding; and, if the property belongs to a married woman, the husband must be joined as a party. Where these substantial requisites are not complied with, such proceedings, based upon service by publication, are ineffectual to pass the title or any right or interest therein.</p> <p>3. Rights and Responsibilities of Married Women — Estoppel,— By the laws of Colorado a married woman, being emancipated from the thralldom of coverture, may do what she will with her own property, the same as any other individual. Her enfranchisement brings to her corresponding responsibilities. To the extent she is sui juris she is subject to the law of estoppel.</p> <p>4. Same —Power to Convey Real Estate —How Affected by Void Condemnation Proceedings — Independent Contract.— Though, under the act of eminent domain, it is required that the husband shall be joined as a party when the wife’s lands are sought to be taken without her consent, this does not preclude her from voluntarily conveying her property to any use, and at any time, the same as if she were sole. Hence, where condemnation proceedings are wholly void, they are powerless to coerce her; and if, with notice of what is sought by such proceedings, she voluntarily accepts as compensation for her property a sum of money equal to the amount of a void award, she must be regarded as acting wholly independent of such proceedings, and she cannot thereafter recover possession of the premises, nor further compensation for the taking. In such case she is bound by the taking and acceptance, but not by the proceedings.</p> <p>5. Defective Applicatons — Renewal — Amendment.— Defective condemnation proceedings may be renewed, and the petition and other papers may be amended, whenever necessary to a fair trial and final determination of the controversy.</p> <p>6. Pleadings and Proof —When Defendant’s Title Without Equity, Damages Nominal.— The petitioner is at liberty to show, by proper pleadings and proof, the state of defendant’s title, claim or interest, and that it is only a bare legal title, without any equity in defendant, and that the damages are merely nominal.</p> <p>7. Rejection of Material Evidence.— The fact that counsel, at the trial, advance a different theory, or assume inconsistent positions, in argument, does not justify the court in rejecting evidence offered in support of the pleading, and material to the issue. This court reviews a case upon the record, and not upon the theory of courts or counsel not íd harmony with the record.</p> <p>8. Introduction of Outstanding Deed in Name of a Stranger.— A petitioner cannot introduce in evidence an outstanding deed in one not a party to the proceeding, unless the same be averred in the petition in disparagement of the defendant’s title or interest.</p> <p>9. Practice at Trial — Burden of Proof as to Value and Damage.— The burden is upon the defendant to show the value of the property or interest actually taken, as well as damages, if any, to the residue; hence he is entitled to open and close at the trial.</p> <p>10. Measure of Compensation. — ; The true and actual value of the property, or interest therein, belonging to the defendant at the time of the appraisement is the measure of compensation in condemnation, proceedings in this state.</p>

<p>1. Uniting Different Causes of Action. — -Under the Code of Procedure a cause of action for the cancellation of a deed to real prop* erty may be united with an action for possession of the same property when both causes of action affect all the parties in the same character and capacity, and are directly connected with the subject-matter of litigation.</p> <p>2. Appropriate Remedies for Obtaining Rights in Real Estate — Possession — Adverse Claim.— A party claiming a purely legal title to real property, with right of immediate possession in himself, cannot maintain the action provided by the code for the determination of an adverse claim, estate, or interest therein, unless when he institutes the proceeding he be in possession thereof by bimself or tenant. In such case be should bring an action for possession in the nature of ejectment. But if he can assert only an equitable title, he may, though out of possession, have his equitable remedy, and may unite with it any appropriate cause of actiou through which he may secure the full and adequate relief to which he is entitled.</p> <p>3. All Interests in Lands Subject to Sale on Execution.— In ' Colorado, every interest in land, legal and equitable, is by statute made expressly subject to levy and sale under execution.</p> <p>i. Fraudulent Deed of Realty —How Tested or Set Aside. — A , judgment creditor, desiring to set aside a supposed fraudulent deed, may bring his action to test the validity thereof before attempting to subject the premises to execution; or the purchaser, after such sale, may bring his action to remove the cloud from the title by canceling the supposed fraudulent deed, and to recover possession of the premises.</p> <p>5. Trial by Court Below on Depositions — How Reviewed in Supreme Court. — When the trial is by the court on depositions, substantially the same as under the equity practice, and the assignments of error question the sufficiency of the evidence to support the judgment, this court must examine and weigh the testimony uninfluenced by the findings of the court below upon the facts as well as upon the law.</p> <p>6. Withholding Trust Deed or Mortgage from Record — Fraudulent Intent and Practices.— The concealment of matters which the policy of the law requires should be made public, as the withholding of a deed or mortgage from record for a considerable time, is a badge of fraud; and an agreement between the grantor of a trust deed and the beneficiary that the deed is not to be recorded as provided by law, that it may not affect the financial standing of the grantor, is express evidence of fraudulent intent. When such fraudulent agreement is carried out by concealing the existence of the trust-deed, and also by representing the credit of the grantor as good, when the parties must have known it was at best doubtful, whereby the grantor is enabled to obtain large credit from those who are misled by such representations, the evidence of fraud is conclusive.</p> <p>7. Misleading Others by Concealment of Liens, or by Misrepresentations, Not Allowed to Profit by Their Frauds. — When a party knowingly misleads another to his injury, as by concealment of a mortgage, or by direct misrepresentation concerning the mortgagor’s financial standing, equity will not permit the mortgagee to profit by the instrument through which he has wronged others, either by its direct use or by other instruments secured in exchange therefor under a fraudulent agreement.</p> <p>8. Failing Debtor May Give Preference. — A failing debtor has a right to give, and his creditor to accept, a preference, provided it bo done in good faith, in the ordinary and usual course of such business, without design, purpose or probable tendency to mislead others to their injury.</p>

The allegations of the complaint in this action, so far as they are necessary to a correct understanding of the matters involved in this appeal, are to the following effect: That in 1882 William H. Johnson, appellee herein, plaintiff below, entered into a verbal contract with the Eobinson Consolidated Mining Company, defendant, a corporation duly organized, to furnish, sell and deliver to defendant at its smelting works, in the town of Eobinson, Summit county, Colorado, two…

By the complaint in this cause it is alleged that plaintiff, on March 25, 1884, was a creditor of H. P. Walton in the sum of $4,040, evidenced by a promissory note dated December 1, 1883. That on March 25, 1884, judgment was obtained and execution issued, and levy made upon certain chattel property. That a long time prior to March 25, 1884, H. P. Walton was insolvent.

Ti-ie provisions of the statute necessary to a complete understanding of the opinion areas follows: “A copy of the complaint need not be served with the summons.

In the court below Hugh Butler and Anson Wolcott were joined as defendants with appellant; the following facts being alleged in the complaint: “First. That on, to wit, the 13th day of August, 1885, he was the owner of the undivided three-sixteenths of the Pocohontas lode and mining claim, and the undivided one-half of the Bockport lode and mining claim, both situate in the Tomichi mining district, in the county of Gunnison and state of Colorado. “ Second.

<p>Appeal — Briefs — Dismissal.— Under general rule 26 of the supreme court, where neither party has filed briefs within the time agreed upon by stipulations in the cause, the appeal will be dismissed.</p>

At an election held in April of the present year, Lewis Schwarz, the appellee, and Charles W. Durand were opposing candidates for the office of mayor for the town-of Glenwood Springs. Upon the face of the returns Schwarz had an apparent majority of four votes. The certificate of election issued to him. He assumed the office and is now discharging its duties.

This action was originally brought against appellants, together with Louden Mullen and Thornton H. Thomas, to recover damages for the alleged wrongful taking of certain property by appellee. Three separate answers were filed to the complaint — one by defendant Thornton H. Thomas; a second by defendants Bowman and Uhl, sheriff and deputy-sheriff, respectively; and a third by W. and J. W. Mullen and Theodore H. Thomas.

At an election, for mayor of the city of Denver, held in April last, relator, Barton, and respondent, Londoner, were opposing candidates. The returns on their face gave a majority of three hundred and seventy-seven for respondent. Upon a canvass by the proper board, respondent was declared elected. A certificate issued to him accordingly; and he duly qualified, and has since discharged the duties of the office.

The opinion is in response to the following communication and interrogatories from the governor, to which were attached exhibits coiitaining hundreds of different items: “To the Honorable the Supreme Court of the State of Colorado: •“Sirs: Doubts have been suggested, both among the members of the executive department of this state, whose duty it is to act in relation to the matters hereinafter mentioned, and among many citizens and tax-payers of the state, whether the…

<p>Attachment — Judgment by Confession — Partnership and Indi- , vidual Creditors.</p> <p>1. "When a Writ of Attachment May Issue.— While tlie amendment of 2885 to section 39 of the code was in force, as well as before and since that time, a writ of attachment might issue at the time of issuing the summons. The words, “ in an action,” in section 91 of the code, are not used to denote an action pending, but as introductory to the words describing the kind of action in which a writ of attachment may issue.</p> <p>2. Judgments in Open Court and Judgments by Confession — Time of Taking Effect.— Where a judgment is pronounced by the court in open session, it takes effect from the time it is so rendered, though the act of entering the same in the record may be delayed; but a judgment by confession takes effect from the time it is actually entered in the record, as provided by the statute.</p> <p>3. When Enforcement of Judgment by Confession May be Enjoined.— Where a judgment has been entered by confession, without action, unless the statute authorizing such entry has been substantially complied with the enforcement of the judgment may be enjoined, upon principles of equity, at the suit of a third party prejudiced thereby; also, if a judgment by confession be not entered in fact substantially as required by the statute, an execution in advance of such entry will be postponed in favor of a junior execution or attachment based upon valid proceedings.</p> <p>4. Same — Strangers Not Concluded by Date or Recital of Such Judgment — Evidence Admissible to Show Fraud. — Strangers to a judgment by confession are not concluded by its date nor by its recitals. They may, upon a complaint setting forth specific averments of fraud, introduce oral, as well as documentary and record, evidence.</p> <p>5. Rights of Partnership as against Individual Creditors in Equity.— In equity partnership creditors are entitled to the partnership property in preference to the creditors of one or more of the individual partners.</p> <p>6. Rule at Common Law.— A mere creditor at large could not, at common law, enforce such equity without first obtaining a lien by judgment, execution and levy.</p> <p>7. Levy of a Valid Attachment Preserves Property until Cause Adjudicated.— A partnership creditor, having levied a valid attachment upon the property of an insolvent firm, should be permitted to have such property, or the fruits thereof, preserved until his cause can be adjudicated.</p>

Plaintiffs in error, together with one hi. Held: certain articles, together with a large cartoon, all having reference to a cause pending in said court. The matter was heard upon the following affidavit and answer: “ State of Colorado, County of Arapahoe — ss.

<p>1. Interference by Press During Progress of Trial Not a Constitutional Right.— During the pendency of a cause the court must be permitted to proceed therein without molestation, in accordance with constitutional ¡principles and approved legal rules and precedents. The privilege of directly interfering, in such cases, with the administration of justice by indiscriminate newspaper charges of perjury, bribery, corruption, and the like, against the parties concerned, or against those conducting the trial, is not a constitutional right. Such interference may be summarily punished as a contempt.</p> <p>2. Integrity of Litigants or Officers of Courts — How Investigated.— When the integrity-of a litigant, witness, juror, judge or other court officer is suspected in a cause pending,- the legal remedy by means of judicial investigation should be invoked.</p> <p>3. Past Action of Courts, and Proceedings as They Take Place from Day to Day, the Subject of Fair Criticism. — But the press may, without liability to punishment for contempt, in the interest of the public good, challenge the conduct of judges and other court officers; also of parties, jurors and witnesses, in connection with causes that have been wholly determined. It may also fairly and reasonably review and comment upon court proceedings from day to day as they take place.</p> <p>4. Consideration Due Orders -of Court and Judge Pending De- ' termination of Question of Jurisdiction.— If substantial doubt exists concerning the jurisdiction of the court, pending the solution of this doubt, in good faith, -and in a proper manner, the orders and proceedings of the court or judge are entitled to the same consideration as when the objection to jurisdiction is not raised.</p>

Kiel, plaintiff below, is the owner in fee of lot 3, block 36, West Denver. This lot, upon which is erected four dwelling-houses, with fences, out-buildings, etc., fronts a distance of sixty-six feet on Tenth street.

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

The plaintiff, Rickard Pearce, alleges in his complaint, which was filed April 2, 1884, that he was then, and for a long time had been, seized in fee of a parcel of land situated in the city of Denver, described as follows: “All that certain piece of land lying between the western line of lot numbered nine (9) and Cherry creek and the northern line of Lawrence street, in the block numbered seventy-one (71), in the east division of the city of Denver, excepting a strip…

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

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

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

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

<p>Promissory Notes — Negotiability.</p> <p>1. An Instrument Payable upon a Contingency Not Negotiable at Common Law.— A promissory note, in the ordinary form, containing a stipulation that “ this note is given for part payment of rent of certain pasture fields, and is not to be paid unless I have the use of said premises in accordance with a certain lease and agreement,” was not negotiable at common law.</p> <p>2. Such an Instrument is Not Negotiable under the Statute.— Nor is it negotiable under General Statutes, chapter 9, which provides that (section 3) “ all promissory notes, bonds, due-bills and other instruments in writing, made by any person, whereby such person promises or agrees to pay any sum of money * * * to any other person or persons, shall be taken to be due and payable to the person or persons to whom the said note, bond, bill or other instrument in writing is made;” and (section 4) that “any such note, bill, bond or other instrument in writing, made payable to any person or persons, shall be assignable by indorsement thereon, * * * in the same manner as bills of exchange.”</p> <p>3. Proof Requisite to Recovery by an Assignee.— To entitle an assignee of a promissory note payable on a contingency to recover in an action thereon, it is necessary for him to prove ownership of the claim, and that the contingency specified therein has happened.</p> <p>4. Same —Lac® of Proof May be Supplied by Defendant’s Testimony;— la a suit by au assignee of such note, the introduction by defendant, after his motion for nonsuit had been denied, of the lease as a foundation for his affirmative defense, cured the failure of the plaintiff to prove the execution of the lease and possession thereunder, and the error in refusing defendant’s motion became harmless.</p> <p>5. Questions Not Raised Below Not Assignable as Error. — The question as to the illegality of the lease, not having been urged in the court below, could not be assigned for error in the supreme court.</p>

<p>Attorney’s Lien — Sureties on Appeal Bond.</p> <p>1. When Lien for Fees Takes Effect.— When an attorney has obtained a judgment for liis client, the statute immediately invests him with a lien thereon to the extent of his reasonable fees remaining due and unpaid for his professional services in obtaining the same.</p> <p>2'. Notice of Lien Necessary. — As between the attorney and his client, nothing is required to render such lien complete, though to render the same valid, as against the judgment debtor, he must have notice, prior to the settlement of the judgment, that the attorney’s fees are unpaid in whole or in part, and that he relies upon the judgment as security therefor.</p> <p>3. Judgments Affirmed on Appeal — Extent of the Liability of Sureties. — When a judgment appealed to the supreme court has been affirmed, the sureties oil the appeal bond are liable thereon in a sum not exceeding its penalty, to the extent of their principal’s liability by virtue of the judgment.</p>

This was a suit in equity instituted by Byron A. Wheeler and wife in the district court in January, 1889, against John O. Dunn and wife, for the purpose of having rescinded the sale by defendants to plaintiff Byron A. Wheeler, in May, 1888, of certain interests in mines situate in San Juan county.

<p>1. Refusal of Inapplicable Instructions Not Error___It is not error to refuse instructions which assert abstract propositions of law inapplicable to the issues and facts of the case on trial.</p> <p>2. Court Not Required to Duplicate Instructions.— Where correct instructions are given covering all the points of a case, the refusal of others, though correct in themselves, is not ground, of error.</p> <p>3. How Instructions Are to be Considered and Construed.— In construing a charge, each instruction is to be considered in connection with the entire charge; and if, in considering the charge as a whole, the supreme court is satisfied that the jury were not improperly advised as to any material point in the case, the judgment will not be reversed on account of an erroneous instruction.</p> <p>4. Separation of Jury Not of Itself Ground for New Trial.— Although the Civil Code (Gen. St. 1883), section 172, provides that after hearing the charge a jury may either decide in court or retire for deliberation, the mere separation of a jury in a civil case, after the evidence, charges and arguments are concluded, will not p'er se be sufficient ground for setting aside the verdict and granting a new trial. It must appear that there is a strong probability that the jury have been tampered with or influenced to return the verdict which is sought to be set aside.</p>

This was a proceeding by certiorari to review the action of the board of aldermen of the city of Denver in amoving the appellee from the position of alderman and president of the board of aldermen of the city of Denver.

<p>1. Attorney and Client — Authority of Attorney. — The authority of an attorney to appear for another is generally presumed; but the court has inherent power to determine by what authority an attorney appears either to prosecute or defend for another, whether that other be a natural or an artificial person.</p> <p>2. Practice — How to Question Attorney’s Authority.— The proper practice for determining the right of an attorney to appear is by rule of court against him to show his authority. Such rule will not bo granted except on prima facie showing of want of authority. The issue upon such question takes precedence of other proceedings, and should be determined before a trial either upon the issues of law or of fact.</p> <p>3. Contract of Corporation — Defective Execution — Ratification.— Where a contract under seal has been executed by the officers of a corporation in their individual names, it is competent to aver and prove by parol that the corporation, as the real party in interest, adopted, ratified and undertook to carry out the terms of the contract in such a manner as to become bound thereby.</p> <p>4 Mechanic’s Lien —An Equitable Progeeding. — The statutory proceedings to enforce rights under the mechanic’s lien law are in their nature equitable, and equitable rules govern in their administration.</p> <p>5. Same — Contract with Agent oe Owner. — Chapter 65, General Statutes, provides a lien for all who do. work, etc., by contract with the owner, etc.; but it is sufficient if the contract be either express or implied, and with an authorized agent for and on behalf of the owner.</p>

<p>Í. Ex Post Facto Laws —Execution of Criminal. — The act of the seventh General Assembly, substituting the state penitentiary for the county jail as the place of confinement pending execution, and directing that executions, which had before taken place publicly, should thereafter take place within the penitentiary walls, is not in these respects ex postfaeto as to one under sentence when the act took effect, as it does not change the punishment to his disadvantage.</p> <p>3. Same — Solitary Confinement.— Nor is the act ex post facto in that it designates the confinement as solitary, where it also pro- ' vides that the accused may be visited by “attendants, counsel, physician, a spiritual adviser, *’ * and members of his family.”</p> <p>3. Construction of Statutory Phrases — Computation of Time.— Under the former law (Gen. Laws, § 729) the execution could not take place within fifteen days from sentence. The later act provided that the judge should designate “ a week of time within which such sentence must bo executed. Such week so appointed sliall be not less than two nor more than four weeks from the day of passing such sentence.” Held, that the “ week of time” was a calendar week, beginning Saturday at midnight, and lienee the execution could not, under the new law, take place within fifteen days of sentence, and the law did not shorten the time before execution.</p>

Actions by J. Jay Joslin, in the first case in his own right, and in the second as assignee of Fox Bros., against Michael Spangler, sheriff, to subject funds in defendant's hands to the satisfaction of executions. Judgment for defendant in both cases, and plaintiff brings error.

Hugh Butler, who was plaintiff below, brought this action to recover reasonable attorney’s fees for services rendered appellants, who were defendants below. The complaint contained a general allegation as to the suits prosecuted and defended, and other professional labor performed.

This action was brought by Richard Gilbert, plaintiff, against the Greeley, Salt Lake & Pacific Railway Company, defendant, to recover damages occasioned to the .premises of plaintiff by the construction and operation of defendant’s railroad.

In September, 1886, James Bowers applied to the county court of Eremont county for a writ of habeas corpus, setting forjfh. in his petition that he was illegally restrained of his liberty by one Edward L. Evans, town marshal of the town of Coal Creek, in said county. The writ was duly issued.

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

Original Application for Habeas Corpus. Charles Allison was. convicted in the district court of Conejos county on four indictments for highway robbery. Sentences were duly pronounced on each of the four convictions, whereupon he applied for a writ of habeas corpus.

Appellee, as plaintiff, filed his complaint in the superior court, alleging: (1) The corporate existence of defendant, the present appellant.

In the month of January, 1886, appellees, Edward Arkell and W. A. Camplin, as plaintiffs, instituted suit in the county court of Pitkin county against appellant, as defendant, for the purpose of recovering certain commissions claimed upon the sale of a mine: The defendant having appeared and answered, the cause was tried to the court in the month of March following.

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

<p> Original Application for Mandamus. </p>

<p>Appeal —Failure to File Briefs. — An appeal will be dismissed for want of prosecution where briefs are tendered to the clerk for filing two years after the time fixed by stipulation has expired, and it does not appear that appellees were served with notice of such tender, or that application was made to the court for leave to file, the same.</p>

Action by the Denver Circle Railroad Company against William N. Byers and wife for specific performance. Judgment for plaintiff, and defendants appeal.

<p> First Case, Error to the District Court of Clear Creek County. </p> <p> Second Case, Appeal from the Same Court. </p>

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

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

The action was instituted in the name of “The Arkansas Biver, Land, Town and Canal Company, a corporation: John W. Gaynor, Peter O. Gaynor, J. O. Abbott, J. F. Minnis, stockholders,” etc., plaintiffs, against “The Farmers’ Loan and Trust Company, Hugh Butler, A. B. McKinley and Otis L. Haskell,” defendants. The facts are sufficiently stated in. the opinion.

<p>Purchase After Judgment but Before Writ of Error. — The title of a purchaser in good faith, which rests upon a voidable decree in chancery, the purchase being made after the entry thereof, and before a writ of error thereto is sued out, is not affected by a subsequent reversal of the decree. Cheever v. Minton, 12 Colo. 557, followed.</p>