Volume 14 — Colorado Reports

This action was brought by appellee, as assignee and owner of a certain promissory note executed by appellant in favor of Huntington & Co., bankers, for $1,000, with interest at the rate of one and one-half per cent, per month until paid, payable “on demand, after date.” One division of the answer averred, among other things, that Huntington & Co., at the time said note was executed, occupied for its banking purposes a building belonging to appellant, though the lease to the…

Fish & Beaton were partners in mercantile business. Wade, who was carrying on a similar business, became financially involved, and thus embarrassed. He owed Fish & Beaton an aggregate indebtedness of $1,243, and, desiring to insure their protection, made to them a bill of sale, with a nominal consideration of $2,500, absolute and unconditional in form, of his entire stock of goods.

This was a proceeding in equity for an accounting by Charles Burns and Nathan Hurd (the latter an assignee of an interest in the subject-matter) against Peter Rinnerty. Defendant died pending the proceedings, and his executor, Thomas' O’Reilly, was substituted as defendant. On March 5,1884, Burns applied to Pinnerty for a loan of $1,100, and, as circumstances clearly indicate, for the speculative purchase of an interest in an undeveloped mine in Aspen.

<p>1. Exercise or Original Jurisdiction by Supreme Court. — It is the settled practice of .this court not to exercise its original jurisdiction except in cases publici juris, or in cases where it is shown that a refusal to take jurisdiction would practically amount to a denial of justice.</p> <p>2. Certiorari from District to County Courts.— Compared with the district courts, the county courts are, in point of jurisdiction, inferior to, and their judgments and proceedings are subject to review by writs of certiorari from, the district courts, as provided by •chapter 28 of the code.</p>

Suit was begun by one George O. Bates against James Cannon, Jr., William J. Dounce, Morgan D. Williams and others to establish his claim for services rendered as an attorney, and to secure a prior lien upon certain coal mines as to which two of the defendants were considered owners and the others lien-claimants.

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

On July 26, 1881, one of the appellees, viz., the Trinidad Gas Company, a defendant below, issued to David H. Irland its certificate of stock No. 25 for fifteen shares of the capital stock of said company, the shares being of the face value of $100 each, and registered upon the company’s books in Irland’s name.

.In the year 1882 defendant in error, Joseph Williams, contracted with the city of Denver to construct what is known as the Twentieth-street district sewer.

<p> Certiorari to County Court of Garfield County. </p>

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

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

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

<p>1. Garnishment — Legal Status oe Garnishee.— Under no circumstances shall a garnishee, by the operation of the proceedings against him, be placed in any worse condition than he would be in if the defendant’s claim against him were enforced by the defendant himself.</p> <p>2. Municipal Corporation as Garnishee — What May be Shown in Discharge oe Liability. — When an incorporated town is summoned as garnishee on account of salary due one of its officers, the town may show in discharge of its liability that the officer is a collector of its taxes, and, as such, has received money of the town, which he insists upon retaining, equal to the amount of salary due him. It is not to be inferred, however, that the officer has a right to insist upon retaining money under such circumstances ; for the right of election to treat money in the hands of a receiver of the public revenue as a simple contract debt or' as a trust fund is with the municipality, and not with the collecting officer.</p>

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

The transcript of record does not contain the original complaint filed in the district. court. By the amended complaint, A. E. Jones and W. J. King, partners doing business under the firm name and style of Jones & King, were made parties plaintiff, and Ira Nichols and H. N. Nichols and S. L. Townsend, partners under the firm name and style of Nichols, Townsend & Co., defendants. This xDleading contains twenty-six counts.

Action upon a promissory note bearing date April 20, 1885. The note, which is for $1,000 and interest, is set forth in hcec verba in the complaint. This pleading also contains the following allegation: “ That afterwards, on the 3d day of August, 1886, at Denver, Colo., plaintiff requested defendant to pay said sum. of $1,000 and interest; that defendant did not nor has not since paid said sum of money or any part thereof.

Clement E. Huer was tried and convicted before the police magistrate under an ordinance of the city of Central. He appealed from the judgment pronounced, to the district court. In the latter court, on motion, his appeal was dismissed for want of jurisdiction, and judgment was rendered against him for costs. To reverse this judgment the present appeal was taken, under the act of 1885, regulating practice in this court.

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

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

<p>1. Eminent Domain — Proceedings at Suit op a Railway Company eoe Right op Way Pending the Sdspension op a Peebmption Claim — Discretion op Codrt. — When the entry of a pre-emption claimant has been suspended, and proceedings to condemn a right of way through the land for a railroad have been instituted, the claim of the railway company for a continuance of the latter proceedings pending the determination of the suspended! entry by the department of the general land-office appeals strongly to the discretion of the court.</p> <p>2. Practice — Surprise, When a Ground for New Trial.— When a party, in the midst of a trial, is taken unawares, and, without fault of his own, is placed in a situation greatly injurious to his interests, as by the unexpected admission of evidence upon an issue which, by reason of an order of court made previous to the commencement of the trial, he was not prepared to meet, a case of surprise is presented which, if not otherwise remedied, may be made a ground of motion for a new trial.</p>

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

Upon the 18th of November, 1875, appellee commenced a suit by attachment, in the district court of Boulder county, against the Nederland Mining Company. On January 18, 1876, he obtained a judgment for the sum of $32,490 and costs. Upon the 5th of January, 1876, Jerome B. Chaffee commenced a suit by attachment against the same defendant, in the same court, for the sum of $46,616.66.

The complaint upon which the cause was tried was the original complaint, to which a general demurrer was filed, defendants, Hugh Butler and Charles W. Wright, alleging that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained. The case was brought to this court on error, where the judgment of the court below was reversed, and the cause remanded for further proceedings. Linn v. Butler, 8 Colo. 355.

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

The undisputed facts in this case are as follows: In the year 1S69, Charles Gr. Arnold first occupied the lands in controversy, having entered the same for pre-emption in the United States land office at Fairplay, Colo. He proved up on thorn, and on March 31,1874, paid the sum of $200 therefor, taking a receipt in full, describing the lands, from the receiver of the land office.

Appeals from District Court of Larimer County. In October, 1881, Alonzo P. Sickman and S. B. Livingston formed a partnership for transacting a mercantile business; were equal partners; only continued in business until about the 4th day of February following, when the firm of Livingston & Sickman sold to Jonathan Sick-man (father of A. P. Sickman) and T. EL Davy, and by bill of sale assigned and transferred to them, the entire stock of goods then on hand, book-accounts,…

<p>1. Evidence — When Teems of Original Contract of Hiring Admissible in Suit by an Employee Against a Successor in Business.— Where a man in trade hired an assistant at a stipulated per diem, and afterwards, as agent of his wife, who succeeded to the property and business, continued to allow and pay him at the same rate for his services; but the wife, on assuming personal supervision, refused to allow and pay him at the same rate for the time then due, claiming that the contract made with the husband was not binding on her, it is proper for the plaintiff to prove the original contract of hiring.</p> <p>2. Instructions — In Oeder to Have Same Reviewed the Entire Charge Must be Embraced Within the Transcript.— In construing a charge to the jury the entire charge must be considered; and where appellant does not embrace within the transcript the entire charge given, the supreme court cannot determine whether or not the jury were misled by the charge to which exception is taken.</p>

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

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

Action by the German National Bank of Denver against Adolph Coors, to recover the amount of a thousand-dollar note executed by defendant and discounted by plaintiff. There was judgment for plaintiff, with allowance of certain offsets.

<p>Contempt of Court — Refusal of Receiver to Execute a Decree Appealed from.— The taking and perfecting of an appeal under the act of 1885 (since repealed) by the filing of the bond required by section S3, page 354, from a decree dissolving a temporary injunction, and ordering the receiver to deliver over possession of the property involved to the persons entitled thereto under the decree, operated as a supersedeas and stay of process and proceedings as to every part of the decree. The trial court being thus ousted of all power to enforce it, the receiver was not in contempt for declining to execute it pending the appeal.</p>

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

<p>1. Chattel Mortgage — Consequences op Failure op the Mortgagee to Take Possession on Default of Payment.— After default in payment of a debt secured by a chattel mortgage the relations of the mortgagee to the property and the rights of creditors and subsequent purchasers in good faitli are to be defined and determined by the principles applicable to the relation between vendees and creditors upon a sale of personal property. The mortgagee must take actual possession of the mortgaged property, and the possession must be open, notorious and unequivocal, such as to apprise the community, or those who are accustomed to deal with the party, that the goods have changed hands, and that the title has passed out of the mortgagor. Otherwise the property will be subject to levy and sale for the debts of the mortgagor, and to the rights of subsequent purchasers in good faith.</p> <p>2. Same — The Statute Does Not Authorize the Mortgagor to Retain Possession for Two Years Unless so Specified in the Mortgage. — The statutory provision that the mortgage shall be “ good and valid from the time it is so recorded, for a space of time not exceeding two years, notwithstanding the property mortgaged * * * may be left in the possession of the mortgagor,” does not authorize it to be retained by the mortgagor for that period of time unless it be so stipulated in the mortgage. Suffering mortgaged property to remain in possession of the mortgagor after default in payment is a fraud per se, and renders the mortgage void as to creditors both under the chattel-mortgage act and the statute of frauds.</p>

<p>Contracts — Consideration,— A promissory note was given by defendant solely as collateral security for a debt due plaintiff on account. Before the giving of the note this account, together with a trust-deed securing it, had been assigned to a third person. Defendant was ignorant of such assignment, and would not have executed the note had he known of it. After the assignment, and before the commencement of suit on the note, the assignee received payment in full of the account in question. The note had not been negotiated. Held, that plaintiff could not recover, there being no consideration for the note.</p>

6. Suspension of a General Law by a City Ordinance — Repeal of the Ordinance.— When the suspension of a general law within a municipality x'esults from a city ordinance passed in pui’suance of a special charter, the repeal of the ordinance will leave the general law in foi'ce within the city. Error to District Court of Arapahoe County.

<p>Contempt of Court —When Necessary to the Jurisdiction that an Affidavit be Presented.— When it is manifest from the course of the proceeding that the language of a petition for a change of venue on tho ground of the alleged prejudice of the presiding judge is not a contempt per se, but only a constructive contempt, if any, the court is without jurisdiction to order a warrant of attachment to issue against the offender unless an affidavit be presented containing a statement of the facts constituting the contempt. The unsworn report of a committee appointed by the court to inquire into the matters alleged, itself unsworn, does not perform the office of an affidavit.</p>

<p>1. A Trust Fund on Death op Trustee Remains Suoh, Though Intermingled with Other Moneys, and Does Not Become General Assets op the Estate op Trustee.— Where, in pursuance of a previous understanding among alHhe parties, the plaiutiff drew his draft upon a private banker for the amount of the indebtedness of a third party, who was to and did furnish the drawee with the funds to meet the same, and the draft was mailed by the plaintiff direct to the drawee, with directions to remit the proceeds to a certain bank for plaintiff’s credit, but after receipt of the money and before its remittance to the bank named the drawee died, leaving the fund mingled with other moneys of his bank, these circumstances did not make the fund a part of the decedent’s estate, and the plaintiff was entitled to recover the same by an action against the decedent’s legal representative. Having been received in a fiduciary capacity by the drawee, a trust immediately arose in favor of the plaintiff by operation of law; and the mere fact that the fund became so intermingled with other moneys of the bank that the particular coin or bills of which it was composed could not be identified did not make it a part of the deceased’s estate, but it retained its distinctive character as a trust fund, and the estate became chargeable with it as such on death of the trustee.</p> <p>¡2. Same — The Administration Statutes Have No Application to Such a Case.— The case is not affected by the statutory provisions relating to' wills, and the administration of estates, for the reason that the fund in question never belonged to the deceased, and therefore constituted no part of his estate. The relation of debtor and creditor, as between the deceased and the payee of the draft, never having existed, the statutory provisions relating to the classification of claims against estates, and the order of their payment, have no application.</p> <p>8. Proper Parties to Suit — Remedy for Refusal of One to Join. The party in whom the legal title to a claim is vested, and the party who is the beneficial owner of the claim as well, aie proper parties to an action for its recovery; and.where the consent of such a party to the use of his name as a joint plaintiff cannot be obtained, the statute authorizes the plaintiff to make him a defendant.</p> <p>4. Uniting Different Causes of Action — Demand of Plaintiff for Reimbursement.— A complaint by one in whom is vested the legal title only to the fund sued for does not improperly unite different causes of action, where,, in addition to the prayer for judgment against the principal defendant for this fund, it asks that the ■beneficial owner of the fund, who declined to join in the action for its recovery as a party plaintiff, and for this reason was made a defendant, reimburse the plaintiff for all costs and expenses of the ■suit, that being the only relief prayed against him.</p>

<p> Appeal from Superior Court of Denver. </p> <p>Action on. promissory note.</p>

<p>1. Partition of Real Estate — Necessary Parties —Pleadings.— In a proceeding under the statute for the partition of real estate, it is only necessary, at least in the first instance, to make those persons parties who are interested in'the property as joint tenants, tenants in common or coparcenary. Lessees having no definite or subsisting leasehold interest in the premises sought to be partitioned are not necessary parties, and an answer which avers that a lease had been granted “ prior to thecommencement of this suit,” and that the lessees “have been in possession,” etc., without'disclosing the terms, duration or continued existence of the lease, is insufficient to require the supposed lessees to be made parties.</p> <p>2. Refusal of Commissioner to Act — Substitution of Another Without Notice.— Where a commissioner appointed by the court under the provisions of the statute to make partition declines to serve, the court may substitute another person in his place without giving notice to the parties. If the appointee be objectionable by reason of coming within any of the exceptions enumerated in the statute, the objection may be raised after the appointment, or . it may be interposed as an objection to the report before its confirmation.</p> <p>3. Irregularities which May be Cured — Failure in the First Instance to Take the Oath Not a Reversible Error. — Where the commissioners appointed to make partition of lands view the premises before one of them has taken the oath prescribed by the statute, and their report is filed, which for some reason is not confirmed, and afterwards the commissioner takes the oath before the filing of the final report, the filing of the first report does not render the commission functus officio, nor is the failure to take the oath before viewing the premises a reversible error.</p>

<p>1. Election Contests — Pleadings and Practice in Supreme Court. A gen or il averment of election frauds or the intimidation of voters is insufficient; under the rules of this court in relation to election contests, proper ultimate facts must be pleaded as in other cases.</p> <p>2. Character oe Evidence Required in Such Cases.— Mere rumors circulated and arguments advanced against particular candidates during political campaigns, however false or malicious, cannot affect the determination of such cases.</p> <p>3. What Contestor Must Show.— If the contestor does not show that by reason of the illegal casting or i-ejection of votes the result is different from what it would otherwise have been, the proceeding should not be entertained.</p>

<p>1. Authority and Duty of District Judges to Hold Courts for Each .Other.— The judges of the district court may hold courts for each other, and it is their duty so to do under certain circumstances.</p> <p>2. Judge’s Authority Presumed.— When a district judge holds a term of court outside his own district, his authority so to do, and to try the causes pending in such court, will be presumed unless the contrary appeal’s.</p> <p>3. Bill of Exceptions to Be Authenticated by the Judge Who Tries the Cause.— When one district judge tries a cause for another, the judge actually presiding is the proper one to authenticate the bill of exceptions as to any and all rulings excepted to before him on the trial.</p>

<p>Decree in Equity — Conelictins Evidence.— Where the evidence in the trial court is conflicting, but sufficient to sustain the findings and decree, the supreme court will not interfere.</p>

<p>1. Estoppel — Effect of a Dismissal of a Suit by Stipulation.— Wliere plaintiff moved a building for defendant, placing it in position on its new site, elevated on blocks furnished by the plaintiff, on which it was to rest ten days, in which time defendant was to have a permanent foundation placed under it and the blocks released, but failed to comply with his contract, and the plaintiff brought suit for the value of the blocks and for damages for their detention and use, the dismissal of such suit by stipulation of the parties, without a reservation to the plaintiff of the right to sue again, is a bar to another suit for j;he same cause of action.</p> <p>2. Measure oe Damages. — If at the expiration of the ten days defendant request the plaintiff to remove his blocks, and their removal be practicable, tho plaintiff’s damages on the account mentioned would be the expense of removal.</p> <p>3. Same.— But if the blocks are not capable of removal without compliance with his contract on part of defendant, the failure so to do amounts to a conversion, and the plaintiff’s measure of damages is the value of the blocks at the date of the conversion.</p>

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

Suits were brought by Smith and Clough against Charles B. and H. O. McClure to recover claims for goods sold and delivered. Attachments were issued in these suits, and levied upon certain real estate in the city of Denver. This real estate appears of record in the name of 'Scherrer, and Scherrer duly filed a plea of intervention in each of the suits, claiming a superior right as against the attaching creditors.

In 1816, John F. Spalding, as bishop, was the owner of five promissory notes given by John Armor, aggregating $8,380, besides interest at the rate of eighteen and twenty per cent, per annum. These notes were secured by trust-deeds upon the lots in dispute. Subsequently an absolute deed was given by Armor to Spalding, as bishop, covering the incumbered premises. Spalding at once took exclusive possession, and has since paid all taxes, insurance, and other expenses.

<p>1. Wills — The Rest Place oh Probate is the Testator’s Last Domicile — Presumption Concerning — How the Probate and Record May Be Questioned.— A will should be first admitted to probate in the jurisdiction of the testator’s last domicile; but in admitting a will to probate the court must be presumed prima facie to base its adjudication respecting the last domicile upon sufficient evidence, and, under such circumstances, the probate and record thereof can only be questioned by some appellate or direct proceeding.</p> <p>2. Letters Testamentary or oe Administration Have No Extraterritorial Force.— The general rule is that letters testamentary or of administration have no extraterritorial force. When such letters have been duly granted'in the jurisdiction of deceased’s last domicile, they are the principal letters of authority, and those granted in other jurisdictions are ancillary.</p> <p>3. How a Will May Be Probated Which Was First Admitted to Probate in a Foreign State— Letters Testamentary May Issue Thereon. — A will admitted to probate in the court of another state having jurisdiction of such matters is, on the presentation of the duly certified record thereof, entitled to be admitted to probate and record in this state, and letters testamentary or of administration may issue thereon as in other cases. The probate and record, under such circumstances, would seem to be mandatory; but the court is invested with discretion in the matter of issuing letters, but the discretion is not arbitrary. It must be sound and reasonable,— such as will secure the administration of the estate according to the will of the deceased, as well as with due regard to local creditors.</p>

Motion to strike out part of bill of exceptions. This case was tried at the April, 1889, term of said court, on the 26th day of April, 1889, and taken under advisement, and on May 3, 1889, the court found for the plaintiff. May 8, 1889, at the same term, defendant filed his motion for a new trial.. No bill of exceptions was filed at the April term, 1889, of said court, nor was any order entered at that time fixing the time for filing bill of exceptions.

In the early part of the year 1882 the plaintiffs, Osborne B. Keith and Alexander B. Adams, as copartners, etc., commenced suit against Margaret S. Withers, defendant, for the sum of $1,158.52 and costs of suit. The plaintiffs caused an attachment to be issued in said suit, and levied upon a certain stock of millinery as the property of the defendant.

<p>1. A Conveyance Subject to Condition Vests a Qualified Fee.— A conveyance of lots to a school district by the owner in fee, by an ordinary quitclaim deed, subject to the condition inserted therein, that the lots were to be used for school purposes, and when such use should cease the property should revert to the grantor, vests in the grantee a qualified fee, and, until the happening of the event which is to determine the estate granted, the grantor is divested of all right, title and interest in the land.</p> <p>2. No Reversionary Estate in Grantor Capable oe Conveyance Until Happening oe the Contingency.— Until the happening of such event the grantor is not vested with an estate in reversion, for the contingency upon which such an estate depends may never happen. Having nothing to convey, therefore, if he should assume, in expectancy of a possible reverter, to execute a deed to a subsequent purchaser, it would not invest his grantee with any right or interest in the land, present or contingent, but would be wholly without legal force or effect; and if the second grantee should enter into possession of a portion of the estate under such a conveyance, the owner of the qualified fee could oust him therefrom by an action of ejectment.</p> <p>8. Forcible Attempt to Acquire Right oe Way — Ejectment — Estoppel.— If a railway company without right enters upon the land of a citizen who is vested with the exclusive right of possession, and attempts to construct its road-bed over the same, the citizen may procure its expulsion by an action of ejectment, provided he does not acquiesce in the possession so taken, or, by affirmative acts, laches or other conduct, place himself and the railway company in such a position as to make it inequitable for him to insist upon a restoration of the possession. Conduct of the character mentioned would limit his recovery to the value of the land taken.</p>

<p>Mining Copartnership — Statute op Frauds Not Involved in Action for Settlement op Accounts and Distribution op Assets. When the business of a partnership, organized to lease and operate a mine during a limited period for the sole purpose of making a profit through the extracting and marketing of ores therefrom, has been terminated in a suit brought by one of the partners to settle the partnership accounts and,distribute the partnership profits and other assets, no interest in realty is involved. In such case the right to a settlement and distribution in no way depends upon the legal status of realty under the statute of frauds.</p> <p>[Per Reporter: By the decision of this case, as announced by the court in its per curiam, some of the legal propositions discussed by Mr. Commissioner Pattison are left undecided.]</p>

Action by A. B. Lewis against the board of county commissioners of San Miguel county to recover money alleged to have been fraudulently transferred by defendant after ■service of garnishee process. Judgment for defendant, and plaintiff appeals.

Appeal from District Court of Larimer County. Action by Perry Harrington against John L. Smith- and Thomas H. Davy for trespass in seizing exempt property. Plaintiff was nonsuited, and appeals.

Action by Otto P. Baur against John Beall and J. A. Weir to recover a soda fountain and fixtures.

Action by Edward Parker against the town of Longmont to recover damages for the depreciation of property by the excavation of a ditch in the highway upon which the property abutted. There was a verdict and judgment for plaintiff, and defendant appeals.

<p>1. Contracts of Insurance — Equitable Relief Against Fraudulent Practices — Construction of Words and Phrases. — Contracts of insurance, like other contracts, are to be interpreted according to the language employed by the parties.</p> <p>2. But courts of equity will relieve against such contracts where fraud or deception supervenes, and substantial ambiguity therein may be explained as in other cases.</p> <p>3. The meaning of the phrase “ writing the risk,” and the items covered by the expression “the expenses of writing the risk,” used in a policy of insurance, may be shown by oral evidence; the jury may determine what is meant by and included within each of these expressions; but that body may not pass upon the question whether one embraces the other.</p> <p>4. While courts have no power to change or modify by construction the expression “the expenses of writing the risk” when thus used, they should require that such expenses be reasonable.</p> <p>5. Doubtful provisions of insurance policies are to be construed most favorably to the assured.</p> <p>O. In a provision in a policy that the “ insurance may be terminated, at the request of the insured, by repaying the company the customary short rates from the date of this policy, together with the expenses of writing the risk,” the “customary short rates” do not include “the expenses of.writing the risk.”</p> <p>7. In such a policy “the expenses of writing the risk” includes the commission paid by the company to its agent.</p>

<p>1. When Writ of Mandamus Will Lie to Subordinate Court, and Extent of Its Functions.— The writ of mandamus may be used, to command a subordinate court to proceed to judgment; but when the act to be done is of a judicial or discretionary character, the kind of order or judgment to be rendered cannot be thus controlled or directed. The writ cannot properly usurp the functions of a writ of error, or take the place of an appeal; nor will it lie against a subordinate court unless it be clearly shown that such court has refused to perform some manifest duty.</p> <p>2. When Two oe More Disteiot Judges May Act Together.— In this state two or more district judges cannot lawfully sit and act together as a district court except as they sit in bank for the purposes specified in the act of April 2, 1887.</p>

<p> Original Proceeding. </p> <p>Petition by Peter W. Breene for a writ of habeas corpus.</p>

The section of the statute referred to in the opinion is as follows: “Sec. 4. If the appeal be not taken on the same day on which the judgment is rendered, the appellant shall serve the appellee, or his attorney of record, within five days after the appeal is taken, with a notice in writing, stating that an appeal has been taken from the judgment therein specified, which notice shall be served by delivering a copy thereof to such appellee or his attorney of record.

The record in this case shows that the plaintiffs in error, B. Herbert Brooks and Sarah J. Brooks, were jointly indicted in the criminal court of Pueblo county for conspiracy to defraud the Washington Life Insurance Company, and that to such indictment they each entered a plea of guilty; that upon such plea the court sentenced the defendants to imprisonment in the state penitentiary for a term of two years each, which sentence they are now undergoing.

The facts necessary to an understanding of the opinion, as disclosed by the record, are as follows: At the general election in 1889, there were three candidates for the office of sheriff of Lake county — Timothy B. Ryan, appellee; Harmon R. Clanton, appellant; and Willis A. Loomis. The result, as certified by the county board of commissioners, showed that Ryan had a plurality of one hundred and ninety-three votes over Clanton, the next highest competitor.

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

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

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

Motion to dismiss appeal. A judgment for $900 was rendered against the Diamond Tunnel Gold & Silver Mining Company, but there was no judgment for money against any of the other defendants. A joint appeal was prayed and allowed.

<p>Appeal — Failure oe Appellant to Serve Notice Waived by General Appearance oe Appellee. — In case of an appeal from the county court to the district court under the act of 1885 (Sess. Laws, 1885, p, 159) by a defendant some days subsequent to entry of judgment against him, his failure to serve notice of the appeal upon the plaintiff within five days after taking the same is waived and cured by a full appearance in the district court by the aj>pellee and his participation in the action of the court in setting the cause down for tidal de novo. Such action is a waiver of appellee’s privilege to have the appeal dismissed or the judgment affirmed- for failure to serve the required notice.</p>

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

Civil Code, section 257, provides that an action may be brought by any person in possession of real property against any person who claims an estate or interest therein adverse to him for the purpose of determining such adverse claim or estate.

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

<p> Appeal- from Pitkin County Court. </p>

<p>Appeal — Objections Not Raised Below.— When there is sufficient legal evidence to support the judgment it cannot be disturbed upon appeal because joint and several demands were improperly commingled at the trial, no objection for this reason having been interposed.</p>

This suit was instituted by appellee M. B. Carpenter, plaintiff, against appellants Joseph and Anna Williams and one Alfred J. Ware, as defendants.

Dependant, Cook, sent word to plaintiff, Doud, that a party wished to speak with him at a certain hotel in the city. Plaintiff repaired to the place appointed and was immediately assaulted by defendant, in the presence of ■ several by-standers, with a raw-hide riding-whip, receiving blows upon the head, shoulders, face and back. Plaintiff clinched with defendant.

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

<p>1. Equitable Intervention Not Admissible — Acts op a Party to a Contract Against Which a Court op Equity Cannot Relieve.— Where a party has the means of acquiring full information respecting the nature and extent of the obligations he is about to assume in the execution of the contract, and ample time to ac■quaint himself therewith, in the absence of fraud or imposition by the other party to the contract, a court of equity cannot relieve him against over-generous, hasty and inconsiderate action on his part, however ill-advised and injurious to his interests they may be.</p> <p>•2. A Bill to Set Aside a Conveyance op Land Donated Will Not Lie in the Absence op Fraud or Mistake. — On a bill to set aside a conveyance, it appeared that plaintiff had agreed to donate to defendant land, in consideration of his erecting a factory upon it. There was a dispute as to whether the tract to be donated was to contain ten or twelve acres; and to settle the question as to the quantity necessary for the purpose intended, a surveyor was procured, and four separate parcels were surveyed and platted, showing the portions thereof which -would be required for streets, and the parts occupied by the channel of the Platte river. After some negotiation the defendant offered to accept, and the plaintiff .agreed to execute a deed to him of all four parcels. Plaintiff assisted in the survey and could easily have ascertained exactly how-many acres the tracts contained. Before executing the conveyanee, and after the tracts had been platted, he was informed that they contained considerably more than ten acres. Under this state of facts no case existed authorizing a court of equity to decree a cancellation of a portion of the conveyance, or for other relief.</p>

/'On the 30th day of January, 1885, appellant issued to appellee a policy of insurance on his frame house, used as a residence, in the village or town of Hancock, Chaffee county, and its contents, including wearing apparel, family stores and provisions, for the sum of $1,200,— $800 being on the building and $100 on the contents; insuring against fire and lightning for one year for a premium of $48., In the body of the policy appears the following: / “ And it is expressly…

<p>1. The Statute of Limitations is Pleadable to Any One or All of Several Distinct Causes of Action, Though Embraced in a Single Count.— When a complaint states several distinct causes of action — as for moneys expended for the use of defendant; for services performed by plaintiff as agent of the defendant; for the use of property by the defendant, etc.,— the statute of limitations may be pleaded to each or all of these several items, although all are joined in one count. It is therefore not a valid objection to a judgment in such case that the court, after the commencement of the trial, permitted the plaintiff to dismiss without prejudice his action as to all but two of the items declared upon, thus preventing the defendant from pleading the statute of limitations to the latter items, as he would have done had they been originally declared upon in this form. Such an objection could not be available in any case unless accompanied by a seasonable offer by the defendant to so amend his answer as to set up the statute as a defense.</p> <p>2. Landlord and. .Tenant — A Valid Lease, in the Absence of Some Default by Tenant, No Defense to a Suit by Latter Against His Landlord Upon a Different Cause of Action.— It is not a valid defense to an action for services, and for moneys expended for use of the defendant, that plaintiff held a lease of a tract of laud from defendant, on which he grazed a large number of animals without paying anything for the privilege, when the lease itself shows that it was given in consideration that the lessee would construct and maintain fences and irrigating ditches, plant trees, erect certain buildings, pay taxes and generally keep the premises in good repair. The lease shows ample consideration for the use of the land, and, in the absence of some default on part of the lessee, is no defense to an action upon a wholly different agreement.</p>

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

<p>1. Instructions to Jury — Appellant Cannot Complain op Error Which Does Not Prejudice.— Where the appellant assigned error upon an instruction given at the trial, and it appears that the portion of the instruction applicable to the facts of the case stated the law correctly, and that the portion complained of could not have been prejudicial to the appellant in any event, it affords no ground for reversal.</p> <p>2. Action Against Indorser op Promissory Note, the Makers Not Having Been Prosecuted to Insolvency. — In a suit against the indorser of a promissory note, no action having been instituted ' against the makers, the question whether a suit against the latter would have been wholly unavailing was properly submitted for the determination of the jury on the evidence, under section 7, chapter 9, General Statutes.</p>

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

In the year 1882 Catherine Caspar, being indebted to appellees in the sum of $2,000, executed four promissory notes for $500 each, payable in three, six, nine and twelve months, respectively. To secure these notes she also gave a mortgage upon eight lots in the city of Denver, which mortgage was at the time duly filed for record Avith the clerk and recorder of Arapahoe county.

Motion to dismiss writ of error. The facts are sufficiently stated in the opinion of the court. The statutory provisions of the Civil Code, adopted in 1887, referred to, are as follows: “ Sec. 397.

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

<p>Review — Weight oj? Evidence.— Where the evidence was conflict ing, and the findings of the trial court were not manifestly against the weight thereof, the judgment will not be disturbed.</p>

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

<p>Change of Venue — Prejudice of Judge.— It is no ground for a change of venue in a civil case that the judge had formerly represented the people as prosecuting attorney in a criminal prosecution against defendant, and had been counsel for the plaintiff in a civil suit against him.</p>

Action upon written contract for sinking shaft upon mining property belonging to the defendant and others. The complaint alleges the making of the contract, which is given in full in the opinion of the court; and it is further alleged that plaintiff completed the shaft as per contract on the 31st day of August, 1885, at which time he claims there was due him from the defendant as his proportion the sum of $332, of which amount no part has been paid except the sum of $90.

Upon the 1st day of August, 1887, Emma O. Whitsett brought suit in a justice’s court against Prank P. Noxon, in which suit a writ of attachment was issued by the justice, and levied by appellant, as constable, upon the goods here in controversy.

<p>I Mortgagee oe Chattels eor Accommodation Bound Only to Ordinary Diligence.— A party accepting a note and chattel mortgage, in his own name, to secure his own claim as well as the individual claim of another, as a matter of accommodation to the latter, and without compensation, is only bound to exercise ordinary diligence, and is not liable for a failure to realize on the securities without proof of negligence.</p> <p>2. Verbal Promise to Answer for Debt oe Another — Statute oe Frauds.— A special promise to answer for the debt of another, not in writing, is void under the statute of frauds.</p> <p>3. Evidence —When Oral Evidence oe Facts Pertaining to Matters Referred to in Writings of the Parties Admissible.— Extrinsic facts and circumstances relating to the parties and their actual dealings with each other in reference to matters referred to in writings maybe shown by oral evidence; but mere naked contemporaneous declarations, and the unauthorized statements of third parties, are not admissible.</p> <p>4. Same — Admissibility of Letters Signed by the Parties.— Letters signed by the parties, tending to explain the transaction in litigation, are admissible in evidence.</p> <p>5. Same — Inconsistent Conduct of a Party Admissible. — The previous conduct of a party, inconsistent with the claim upon which he relied at the trial, is admissible in evidence against him.</p> <p>6. Practice When Finding Unsupported. — Where the evidence does not tend to support the finding, the judgment will be reversed as being against the evidence.</p>

On Petition for Rehearing. The provisions of the act of the general assembly specially referred to in the opinion are as follows: Act of April 1, 1889: “Sec. 2. Said commissioners shall be subject to such rules and orders as the supreme court shall from time to time adopt for their government, and for procedure before them.

<p> Error to District Court of Arapahoe County. </p> <p>Motion to dismiss writ of error.</p>

Dolman, Staley & Blackman, as lessees, were engaged in extracting and shipping ore from the Cincinnati mine, near Breckenridge. For the purpose of obtaining provisions and materials from time to time as needed to carry on said business, Dolman, in their behalf, entered into a written contract with J. H. Hartman, acting for the firm of J. H. Hartman & Bro., merchants in the town of Breckenridge. The terms of this contract sufficiently appear in the opinion.