Volume 15 — Colorado Reports

<p>1. Statute oe Frauds — Proeits in Bealty. — A verbal agreement to share the profits arising from the purchase and sale of real estate may be made independent of any contract for an interest in the land itself. When so made, the agreement is not within the statute of frauds, and may become the foundation of an action for a money judgment, but not for a decree of specific performance affecting the title to the real estate.</p> <p>2. Same — Express Trust. — In jurisdictions having a statute of frauds like ours, the general rule is that the existence of a direct or express trust cannot be established by parol evidence.</p> <p>3. Same — Trust by Operation oe Law. — When the legal title to land has been acquired in pursuance of a verbal agreement to hold the same in trust for a specified purpose, the agreement cannot be upheld as an express trust; but, if it be clearly established that the title has been fraudulently acquired, and is still held in fraud of the rights of another having a valuable interest in the premises, a trust by operation of law may be declared upon equitable terms.</p> <p>4. Same — Parol Evidence. — Parol evidence is admissible to prove facts from which a trust by implication of law may arise, but such evidence is not competent to prove an express trust, where the statute of frauds is relied on as an objection.</p> <p>5. Same — Pleadings—Averments in pleadings in avoidance of the statute of frauds must not only be direct and positive, but they must he clear and unequivocal, or they will not be regarded as sufficient, either in form or substance.</p> <p>6. Same — Trust ex Maleficio. — Where the statute of frauds prevails, a mere oral promise to reduce to writing a verbal agreement declaring a trust in land, and the breach thereof, are not admissible to establish such trust, except in connection with other evidence tending to show fraudulent conduct in the acquisition of the title by the party holding it; but, when the existence of fraud is thus shown, equity will declare the party thus acquiring and holding the title a trustee ex maleficio upon the terms of the dishonored verbal agreement, or other equitable terms, for the benefit of a person having a subsisting valuable interest in the premises.</p> <p>7. Same — Part Performance. — Acts of part performance, such as will furnish a foundation for enforcing a verbal contract respecting land otherwise void under the statute of frauds, must be such as are done in pursuance, or according to the terms, of the contract, and which in some manner affect or change the relation of the parties in respect to the property, whereby one of the parties would be defrauded if the contract were not enforced.</p> <p>8. Same — Possession — Improvements.— Actual possession in furtherance of the terms of the contract, especially when accompanied by the making of permanent and valuable improvements upon the premises, may he made the foundation of a decree for specific performance ; but mere possession will not be deemed a part performance sufficient to justify such relief when it may fairly be referable to some other cause than the execution of the contract.</p>

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

<p>1. An Engine and Boiler Attached to a Mining Claim is a Part of the Realty. — The interest possessed by the locator of a mining claim, on the public lands of the United States is an interest in realty, and as such subject to conveyance by deed. The erection thereon, by the locator, of an engine-house, and the placing therein of a fifteen horse-power engine with boiler and attachments, for the operation of the claim, all securely attached thereto in the usual manner, constitutes such machinery a part of the realty; and while thus situated it is not liable to levy and sale on execution as personal property.</p> <p>2. Rule for Determining When Chattels Personal Become Chattels Real.— In determining whether the character of articles of machinery become changed from personal to real estate by their attachment to land, the intention and purpose of the owner in making the attachment is to be considered; and if it appears from the nature of the articles so affixed —the purpose in view, and the manner of affixing them to the realty — that the attachment was' designed to be permanent, they are thereafter to be treated as a part of the realty.</p>

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

<p> Appeal from Olea/r Greek County Qou/rt. </p>

<p>1. Practice in Supreme Court Concerning Defective Records.— When a record lodged in the supreme court is found to be defective, the proper practice is to obtain an order continuing the cause for the purpose of making application to the court below for amendment in accordance with the fact. Then to present a certified copy of the amendment, if made, as a supplemental transcript, and upon notice, to procure leave to file the same.</p> <p>2. Power of Courts in the Correction of Clerical Errors. — Authority to correct clerical mistakes in their records is inherent in courts, and not dependent upon legislative enactment.</p> <p>3. Abolition of Superior Courts and Transfer of Business and Authority to District Court.— The act abolishing superior courts and providing for the transfer of all business therefrom to the district court was intended to authorize all proceedings before the district court relating to such causes, which the superior courts themselves, if still in existence, might entertain.</p> <p>4. Construction of Section 75, Code of Civil Procedure.— Section 75, Code of Civil Procedure, pertains to judicial action, and does not deal with mere clerical mistakes.</p> <p>5. Practice Upon Applications to Correct Judicial Records.— Clerical errors in judicial records may be corrected at any time; and upon the application to correct, the court may receive such evidence as would be competent in other judicial investigations.</p> <p>6. All Proceedings in a Case May Be Reviewed in a Single Opinion.— Ordinarily, all proceedings, including those subsequent to final judgment, are reviewed by the supreme court at the same time, and a single opinion is promulgated covering the entire case.</p> <p>7. When Special Proceedings Permissible.— But when such review would take place upon a false record, and lead to a false result, special proceeding's may sometimes be had to prevent the injustice.</p> <p>8. Action of Supreme Court Upon Return of Proceedings Had Below on Application to Amend.— Where, upon application to the trial court for amendment of the record, the court makes special findings of fact, the truthfulness of which is conceded, but denies the amendment under a misapprehension of law, the supreme court may ignore the erroneous legal conclusion and render such judgment as the special findings authorize.</p>

This appeal is prosecuted under the act of 1885. It appears from the abstract of record that on the 1st day of November, 1885, appellant, who was defendant below, was ■about to commence the business of transporting or freighting goods with horses or mules and wagons from the railroad station at St. Elmo through and over the mountains to the town of Aspen.

The contract sued upon in this case reads as follows: “ This agreement, made and entered into this 22cl day of November, in the year of our Lord 1884, by and between J. G-. Knight, F. A. Knight and G-. P. Atmore, copartners as the Knight Carpet Company, all of the county of Arapahoe and state of Colorado, parties of the first part, and W. B. Daniels, W. G-. Fisher and T. B. Croke, copartners as Daniels & Fisher, and. Mrs. Ií. II.

Error tó Dist/rict Cou/rt of Arwpahoe County. This is a petition filed in the name of the people by the relator, Smith, against Louis B. Schwanbeck, the auditor of the state, whereby the petitioner seeks to compel the auditor to issue to him a warrant upon the public treasury for a certain amount of money.

Mrs. Graoey, appellee, entered, into a contract of insurance with, the California Insurance Company, appellant, covering furniture and other personal property belonging to and used by her in keeping a boarding house in the city of Denver. The building, together with the personal property insured, were afterwards destroyed by fire. Hotice of the loss was duly given to appellant, and proof thereof was attempted to be made.

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

<p> Appeal from District Oowrt of Douglas Oounty. </p>

<p>1. Assessment of Personal Profrrty — Construction of the Statute.— The several sections of the revenue statute, providing for the assessment and collection of taxes upon personal property, are to be construed in pari materia, and in pursuance of the mandates of the constitution. Thus construed, no personal property -which is not in esse, and having a personal situs somewhere in the state on the 1st day of May, is liable to assessment for the current year, that being the day in each year fixed for the assessment of personal property, and all assessments being required to be made as of that dat'e.</p> <p>2. Live Stock Purchased Abroad After May 1st Not Taxable for that Year.— In accordance ■with the principles announced, horses and cattle purchased in another state and driven into a certain county of this state in October, and pastured therein until the month of January following, are not liable to assessment for that year, notwithstanding the provisions of section 23 of the revenue law, providing that “when any stock is driven into a county for the purpose of grazing therein, at any time previous to the last day of December in any year, it shall be liable to be assessed for all taxes leviable in that county for that year, the same as if it had been in the county at the time of the annual assessment; * * * provided, that such stock has not been regularly assessed in some other county of the state for that year.”</p> <p>3. A Different Construction Would Bender the Statute Inconsistent, and Section 23 Unconstitutional. — To hold the stock liable for assessment for the year it was brought into the state, in such case, would violate the spirit of the statute, its different provisions being considered and construed together, and would likewise render unconstitutional and void the section relied upon to authorize the assessment, since it would make it discriminate against this class of property. Other kinds of property purchased abroad and brought into the state after the 1st day of May are not liable to assessment for that year.</p> <p>4 Appeal from Assessment to Board of County Commissioners Not Conclusive.' — ■ One who appeals from an assessment of taxes to the board of county commissioners, under General Statutes, chapter 94 section 62, on the ground that the taxes are illegal, is not thereby precluded from resorting to the courts to test the validity of such taxes.</p>

ÁpfioÁ from Pistfioi Coxlfh of Pouf as Voting Tnn appellant was plaintiff below, and bfouglit Ms action, against defendant for the taking and conversion of a stock of merchandise of wMch plaintiff claimed to be the owner.

<p>1. Evidence — Previous Declarations of Witness. — Where public officials are charged in a civil action with a fraudulent conspiracy against the rights and interests of the people, the court is justifiable in its discretion in allowing one of the defendants to be interrogated by leading questions, and even cross-examined by the party calling him; such witness being a party to the record, his previous declarations relating to matters in issue, if otherwise competent, may be proved against him independent of the question whether a party may impeach his own witness.</p> <p>2. Parol and Written Evidence. — The rule that contemporaneous parol evidence is not admissible to contradict or vary the terms of a valid written instrument is limited in its application to the language of the instrument, and does not exclude the light of extrinsic circumstances ; and the instrument itself, being attacked on the ground of fraud, is not, while that issue is undetermined, the best evidence of the actual contract.</p> <p>3. Declarations of Co-conspirators. — The declarations of a defendant are not admissible in evidence against Ms co-defendants under a charge of -conspiracy until there be prima facie proof of the existence of the alleged conspiracy; but a concert of action between the defendants in the unlawful enterprise as charged bemg shown to the satisfaction of the trial court, the acts and declarations of each conspirator in furtherance of the unlawful object may be given in evidence against all the co-conspirators.</p> <p>4 Trial by Court — Instructions.—When the trial is to the court it ' is presumed that the court is governed by proper rules of law in considering the testimony, unless by asking for a declaration of the law in the nature of an instruction the contrary is made to appear-.</p> <p>5. Ultra Vires — When a Defense.— Parties having obtained money belonging to the county cannot justify their use of it by pleading that they acted by the authority of the county commissioners, and then refuse to account for it on the ground that the commissioners could not lawfully give them such authority. A contract entered into by the agents of a corporation, without authority, may not be enforced against the corporation so long as the contract remains ex-ecutory ; nevertheless, the other contractmg party, being sui juris, and having reaped the benefit of the execution of such contract without interference, cannot jilead the agents’ want of authority to enter into the contract as a defense to relieve himself from accountmg to the corporation ex aequo et bono.</p> <p>6. Province of Supreme Court on Appeal.— Where cases have been decided ujion oral testimony in the trial court it is not the -province of this court ujion a-pjieal to decide mere questions of fact, but only questions of law, nor to determine the result of the evidence, but only its legal tendency. Where there is conflicting evidence this court will not undertake to pass upon the credibility of the witnesses, nor to consider and weigh the evidence. If, upon a review of the record, it ajpears that the case was fairly tried, that the rules of evidence were substantially observed, that the evidence tends to sustain ' the findings, and that the findings support the complaint, this court cannot jirojierly disturb the judgment.</p>

This action was brought by defendant in error to recover damages claimed to have been sustained by him on account of certain criminal prosecutions alleged to have been maliciously instituted against him by plaintiff in error. A trial by jury resulted in a verdict for defendant in error for $1,000 damages, upon which judgment was duly entered February 23, 1886. A review of this judgment is sought in this court. The case was first docketed as an appeal.

<p> Error to District Gov/rt of Araqoahoe Goimty. </p> <p>Oh motion to dismiss petition for alimony and suit money.</p>

<p> Appeal from District CJou/rt of /Scm Jucm Gounty. </p>

<p>1. Variance Between Pleading and Proof.— An answer alleging a joint loan to both plaintiffs is not sustained by proof of a loan to ond of them individually.</p> <p>2. When Evidence Not Reviewable Upon Appeal. — Where the record on appeal does not contain all the evidence, an objection that the judgment is not sustained by the evidence will not be considered.</p>

<p> Appeal from Sxiperior Gourt of Denver. </p>

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

<p> Appeal from, Jefferson County Court. </p>

Action for commissions for the sale of real estate. The complaint alleges the copartnership of appellees, Henry Apple and George A. Hamilton, plaintiffs below, as brokers ■ and real-estate agents, under the firm name of Apple & Hamilton; that, in the year 1887, at the special instance and request of Samuel M. Cawker, defendant, plaintiffs sold certain real estate owned by him; that said sale was made in accordance with instructions given plaintiffs by defendant.

<p>1. The Interest of a Deceased in a Mining Claim Descends Di-rect to His Heirs.&emdash; An interest claimed by an intestate in a min-ing claim at the time of his death is an interest in real estate, and descends to his hems, who alone can maintain an action to quiet title thereto. The right to maintain such action is not conferred upon the administrator of the intestate by the Revised Statutes of the United States, sections 2322, 2324, providing that the locators of mining claims, “their heirs and assigns,” so long as they comply with the laws of the United States, and with state and local regula-tions not in conflict therewith, shall have the exclusive right of possession and enjoyment of all the surface included within .the lines of them locations, and that, upon failure to comply with the conditions as to annual labor, the ground shall be open to relocation, provided that the original locators, them heirs, assigns, or “ legal representatives,” have not resumed work upon such claim after fail-ure and before such location.</p> <p>2. Citizenship of Claimant Must Be Alleged in Complaint.&emdash; Under the act of congress of May 10, 1872, declaring that only those who are citizens of the United States, or have properly declared them intention to become such, can either locate or purchase mineral lands, an allegation of citizenship, or its equivalent, is necessary to constitute a good complaint in a proceeding to determine adverse mining claims preliminary to the issuance of a patent therefor.</p>

Ths ease at bar was once before considered upon writ of error by the supreme court. Israel v. Arthur, 7 Colo. 5. It was then reviewed, and reversed, upon a record presenting the following facts: Defendant in error in.

The complaint of Tritch, plaintiff below, averred, among other matters, the following: “That in June, 1886, Tritch commenced his action upon a promissory note against the Bailey Reduction Company to recover the sum of $18,161.21; that at the same time a writ of attachment was at his instance duly issued and placed in the hands of defendant Cramer, the sheriff, for levy; that the sheriff was instructed to attach thereunder all the estate of the company within the county of…

Original Application for Habeas Corpus. It is alleged, among other things, in the petition that Genaro Losasso and Gaetano Losasso are held in custody by the jailer of Arapahoe county upon a pretended indictment charging them, with murder in the first degree; that they “ are not guilty of any crime or offense against the laws of this- state,” and their imprisonment is illegal and unconstitutional.

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

Appellee, Fisher, plaintiff below, brought suit in the county court, stating, in his complaint, his demands against the defendant, Knight, in substance as follows: For work and labor, 14 mos., at $40 per mo............$560 00 For money lent, and sundry other demands............ 328 60 Total......................................•.....~ $783 60 The complaint admits sundry credits, aggregating..... 573 83 Leaving balance in favor of Fisher.................... $209 77 For which…

Three causes, involving claims by the same parties to the same mining property, were argued and submitted before this court at one hearing, with the understanding that they would be considered and disposed oí together. The causes bear the same title and are numbered 2,213, 2,241 and 2,768. respectively. The first cause is of the nature of an action of trespass qua/re clausum freqit.

This is an appeal -from a judgment awarding compensation and damages to appellees for a strip of land through their premises taken for right of way for appellant’s railroad.

Charles Sohaad, plaintiff below, brought this action against the Sampson Mining & Milling Company for personal injuries suffered by himself while at work for defendant in the lower level of its mine. The injuries were very serious, and were occasioned by the falling of the roof of the mine, thus burying plaintiff under the roofing material and a great quantity of rock and other debris.

This was an action brought by Pierson and others, plaintiffs, against McFeters and others, defendants.

<p> Appeal from District Court of Olear Oreeh Oou/nt/y. </p>

<p>1.- READING Pleadings to Jury.— "Wliere the issue is clearly defined ■and thoroughly understood at the trial, a party is not entitled to read to the jury extracts from the pleadings, on the ground that his opponent, by failing to deny, admits a material allegation, which admission affects his credibility as a witness on his own behalf. The construction of such pleadings is for the court.</p> <p>Si Personal Liability oe Officers of Corporation. — In an action to enforce a personal liability against the directors of a corporation, upon a note made by it, on the ground of their failure to record certificates of the amount of capital stock and the proportion paid in as required by statute, in which defendants set up an agreement whereby plaintiff, in consideration of a certain bill Of sale, and the assignment of certain leases, released them from personal liability, an instruction that, unless the jury found that such an agreement was made, defendants were liable, because of their failure to file the certificates, was proper.</p>

<p>Sheriffs Not Entitled to Retain, from Proceeds of attached Property, Attorney Fees Paid by Them in Defending Their Possession Thereof.— The statute limits the demands of sheriffs for services performed in the discharge of their official duties to the fees allowed by law. The Code of Civil Procedure provides that in attachment proceedings the sheriff shall satisfy the judgment, and pay his legal fees out of the proceeds of sale of the attached property, and deliver over to the defendant any unsold property, and any proceeds of property sold and remaining in his hands. No authority is given this officer to retain, from the proceeds of attached property, the expenses for attorney’s fees incurred by him in defending an action brought against him by a third person claiming the property. The expenses so incurred being for the benefit of the plaintiff in the original action, he must be looked to for then- payment</p>

<p>Practice in the Supreme Court — The Transcript Must Contain the Portions oe the Record to Be Passed Upon.— In an action to quiet title to a city lot, the trial judge held that the attachment proceedings creating the cloud complained of were irregular and void; and the appellant, who was defendant below, having neglected to have incorporated in the transcript filed in this court a complete copy of the record of such proceedings, whereby their regularity could be examined and judged of, the conclusions of the court below will be adojited and the judgment affirmed.</p>

Appellee, plaintiff in the action, brought his suit by filing the following complaint, which was verified: “ Plaintiff complains of defendants, and states that on the 4th day of February, 1886, the plaintiff became, and ever since has been, and now is, the owner in fee of the following described real estate, situate in the county of Pitkin and state of Colorado: A lot one hundred and fifty (150) feet by fifty (50) feet in size, situate about one hundred and ■ fifty (150)…

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

. Appellant brought suit against appellee, who had formerly been his wife, and was the mother of his infant child, Erma E. Annis, and who was afterwards divorced and remarried, and complained as follows: “ (1) That on or about the 21st day of July, A. D. 1881, and long prior thereto, plaintiff was the owner in fee-simple of the following real property, situated in the county of Weld, and state’of Colorado, to wit: Lot 11. of the northeast quarter of the southeast quarter of…

<p> Ajpjoeal from, District Oou/rt of La Plata County. </p>

<p> Upon Motion to Dismiss Appeal. </p>

The facts of this case may be briefly stated as follows: For some time prior to August 8, 1887, the appellee, Mrs. Howell, then Mrs. Mary Weinart, was engaged in conducting a confectionery store in the town of Montezuma, Sum-in it, county, Colorado.

The controversy in this case is over the priority of lien of different chattel mortgages. On the 23d day of June, 1887, one C. P. Shore, the owner of the property in controversy, executed and delivered to appellant, S. W. Brereton, a chattel mortgage on the same to secure the payment of a promissory note for $250, due October 1, T887.

General Statutes, section 1707, provides, among other things, that interest at the rate of ten per cent, shall he allowed “on money due on the settlement of an account from the day of the last just entry that may have been made in account.”

<p>Landlord and Tenant — Tenancy from Year to Year. — Where a lessee for a year, upon the expiration of his term, continues in possession by the consent of the lessor, with no alteration in the agreement between them save an increase in the rent, which is duly paid, he becomes a tenant for another year.</p>

In 1886, Marrs, Middleton & Hunter brought this action against Perkins and Oolthrop to recover the value of several horses which had formerly been the property of one John L. Alexander, who had mortgaged them to the firm to secure certain promissory notes payable to the order of Marrs & Middleton. The notes had been transferred to the new firm of Marrs, Middleton & Hunter, who were the owners of them.

This was an action of replevin brought by the appellee Corcoran against Hill to recover the possession of certain property alleged to have been unlawfully taken, with damages for the detention.

In July, 1886, the plaintiff, Cuenin, started this case in the county court of Gunnison county, by filing in that court an undertaking and an affidavit for attachment. The summons and writ of attachment were issued. The summons recited substantially that the plaintiff demanded judgment for $1,000, with, interest, at ten per cent, from June 12,1884, for attorney’s fees amounting tó ten per cent, of the note, and. for costs of suit.

<p> Error to Superior Oourt of Rervoer. </p>

A bill was filed, in this case by Barsaloux, Brahoney and Beese, by which they sought to restrain the Denver, Utah & Pacific Bailroad Company from laying á third rail on a street over which they were, and for several years had been, operating a narrow-gauge road, until compensation should be made for the resulting damages, or the company proceed to condemn under the statute.

<p> Error to Superior Cou/rt of Denver. </p>

This case, No. 2215, was consolidated with Bo. 2211 (Railway Co. v. Barsalow, ante, p. 290), which is the preceding case against the company, and the two cases were tried together. The record comes into this court showing that the cases were tried on the same proofs, except in so far as they are modified by the difference in the parties plaintiff, and the lots involved, and a further fact which will be stated.

<p>_ 1. Practice and Proof in Garnishment Proceedings.— In garnishment proceedings the creditor who seeks to obtain judgment is required to establish affirmatively the liability of the garnishee, in order to justify a judgment against him.</p> <p>2. Where Judgment is Bendeked Against a Garnishee Without Affirmative Proof of Indebtedness it Will Be Set Aside — A judgment against a railroad company, as garnishee of one of its employees, cannot be sustained where it appears that the company was running a quarry in a remote place; that it had established a boarding-house and store for its employees, 'the company being answerable for their bills, and deducting them from their wages; that at the lime of the garnishment the debtor had worked for the company fifteen days, and that his bill for supplies and board exceeded the amount which he had earned. Such proof fails to show affirmatively, as required by law, any indebtedness against the company.</p>

This cause was tried, on an agreed statement of facts. Appellees, including Mitchell, were consumers of water from appellant’s ditch.

<p>1. A Summons Not Always “ Process.”— A summons issued and signed by plaintiff’s attorney, under act April 7,1885, is not “ process ” within the purview of the constitutional provision requiring all process to run in the name of the people, although its service is the statutory method of beginning a suit.</p> <p>.2. When Complaint Must Be Answered.— A summons which requires the defendant to answer the complaint that “ will be filed in the clerk’s office on the second Monday after service ” thereof, fixes that day as the time when defendant must answer, and not as the time when the complaint will be'filed.</p> <p>-3. Service on Yice-President of a Corporation as Effectual as on the President.— Under the provision of the Colorado Code that service upon corporations “ shall be made by delivering a copy of the summons to the president or other head of the corporation, or to the secretary, cashier, treasurer or general agent thereof, but if no such officer can be found in the county, service may be had on any stockholder,” service upon the vice-president of a corporation is sufficient, even though the return does not show that the president could-not be found in the county.</p> <p>L Application1 to Set Aside Default Must be Made to Court Below.— Where the proceedings in an action, wherein judgment by default has been entered against a defendant, have been in conformity with the requirements of the statute, application to vacate the judgment and permit a defense on the merits must be made to the trial court.</p>

Suit by appellee, Reitler, as administrator of the estate of Robert Standering, deceased, to recover certain cattle claimed by appellee, Horn, under the following written instrument: “Bailey, Colo., April 11, 188é. I hereby assign, transfer and sell to P. C. Horn twenty-five (25) head of cattle branded ‘ S ’ to secure him for his bond given for me in my suit against J. Carrothers in justice’s court, before C. M. Taylor.

These three oases were consolidated for the purposes of the argument in this court, and will be disposed of together. The cases, which are numbered respectively 2,618, 2,619, 2,640 here, were tried below upon an agreed statement of facts, and involve the same questions of law.

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

Plaihtiees in error brought suit against the defendant as a common carrier for the loss of a package of merchandise consisting of gold and silver watches, watch-cases and movements, of the alleged value of $726.95, delivered to defendant at Alamosa by, one J. B. Moomaw, to be carried as an express package, directed to and to be delivered to plaintiffs at Denver.

This cause of action arose in consequence of the payment of money to the wrong person upon the following written instrument: “First National Bank of Chicago. Chicago, J, 3, 1885. City Nat’l Bank, Denver, Colo.: Tour account has credit for sis hundred dollars, deposited by J. Phillipe, for use of John Phillipe. Confirmation of above will be given in our advice of this date. $600.

This proceeding was started in the county court of Custer county by the filing of a claim against the estate of William Cowles, of which the following is a copy : “ The estate of William Cowles, deceased, to Helen S. Durand Hall, daughter of Henry S. and Caroline B. Du-rand, and granddaughter of Boswell Cowles, formerly of Meriden, Connecticut, now deceased, debtor.

<p> Error to Sent Cou/nty Court. </p>

<p>1. Accident Insurance — Intentional Act of Another.— A clause in an accident insurance policy exempting the company from liability for “intentional injuries inflicted by the insured or any other person ” precludes a recovery when the insured has been killed by the intentional act of another, and the company need not show that such injuries were inflicted at the instance of the insured.</p> <p>2. Pleading — Sufficient Statement op Defense. — An answer by the insurance company that the death of the insured was caused by intentional injuries inflicted by another person, during a personal altercation between the latter and the insured, states a complete defense to an action on the policy.</p>

This is an appeal from a judgment rendered in an action upon the official bond of the county judge of Fremont county. The cause was submitted in the court below upon an agreed statement of facts, which may be summarized as follows: Copy of official bond of Robert A. Bain, as county judge, in the sum of $5,000, and in form substantially as required by law, with James Clelland, J. L. Prentiss, S. W. Humphrey and others as sureties.

William E. Grimes, plaintiff below, brought suit against Zeph T. Hill, alleging that Hill had wrongfully taken and converted to his own use a large amount of personal property (merchandise) belonging to, plaintiff.

This was an action brought by Florace Fairbanks and others, plaintiffs, as payees of certain promissory notes executed by the defendant, Irwin.

This action was brought by James K. Hale against School District No. 3, to recover $402.50, as the balance due him upon his employment from the 1st of September, 1886, to the 21th of May, 1881, as a teacher in the public schools of that district. His complaint sufficiently set forth the contract of hiring, and his performance, until he was wrongfully discharged in the month of November.

George Rand, plaintiff below, brought suit “ against Levi Dillon, Isaiah Dillon, M. F. Dillon, and other sons of said Levi Dillon and Isaiah Dillon, whose names are to plaintiff unknown, as Dillon Brothers, and William F. Marrs, George W. Middleton, Edward Hunter, partners as Marrs, Middleton & Hunter.” The relief sought was by judgment in personam. Hone of the defendants appear to have been served with summons.

In statutory proceedings to secure liens on the property of the- Bassick Mining Company, brought by W. D. School-field and others claiming liens, James W. Kurtz was appointed receiver of the property of the company pendente lite.

<p>1. Landlord and Tenant —Receipt by Lessor in Full or All Indebtedness Prior to Breach or Condition or Lease. — A provision in a lease of land to a party for the purpose of operating a saw-mill, “ that at the expiration of the lease the lessee should clear awa.y all debris and trash immediately upon removing away his mill, and restore the ground to the condition it was in before occupied by the lessee,” is not discharged by a receipt “ in full of all indebtedness and demands to this date; and also for rent to February 1,1886, * *” given by tbe lessor before tbe removal of tbe mill and surrender of the premises, no breach of the provision having occurred at that time. To have exonerated the lessee or his assignee in advance from the duty imposed by this provision of the lease would have required special mention of such release in the receipt.</p> <p>2. Judgment on Findings of Fact Upon Conflicting Evidence. — A judgment on findings of the trial court on conflicting evidence, such findings not being manifestly against the weight of the evidence, will not be disturbed.</p> <p>3. Evidence — Testimony Given in Chief May Be Rejected When Again Offered in Rebuttal. — The rejection of testimony, offered in rebuttal, to prove facts testified to in chief by witnesses for the samé party, is not error.</p>

<p> Error to Dist/riet Court of Ara/pahoe County. </p>

Action by William J. Calvert for divorce from his wife, Mary J ane Calvert. On defendant’s failure to appear and answer after service of summons by publication, a final decree of divorce was entered- against her by default. To review this decree, defendant brought writ of error.

On rehea/ri/ng. The facts necessary to an understanding of the opinion are as follows: In December, 1885, appellee, Frank J. Mos-man, plaintiff below, was engaged in mercantile business, in tbe city of Ft. Collins, Larimer county, Colo., and appellant, tbe Republican Publishing Company, defendant below, was a corporation, and tbe owner, proprietor and publisher of a certain newspaper having a circulation in said city of Ft. Collins.

In the spring of 1885, Eugene Morganthau, appellant, made a verbal contract with Samuel A. King and Amasa J. Ohaffee, appellees, whereby appellees agreed to make the necessary excavation, put in the foundation, put up the walls of a stone budding to be used as a store by appellant, and plaster the same, for a fixed price per day for excavations, etc., per perch for stone in wall and per yard for plastering.

<p>An Agent Earns the Stipulated Commission for Procuring a Loan oe Money, Although the Principal Declines Its Use.— Where one party stipulates to pay another a certain commission for procuring him a loan ol money upon property, and on terms and for time mentioned, which service is duly performed and the money obtained, but on being notified thereof the principal concludes he does not want the money and declines to accept it, his liability to pay the stipulated commission is complete.</p>

Appellant commenced suit in the court below to recover the sum of $50.93 alleged to be due upon an account with appellee. Appellee in his answer denied the indebtedness, and, by way of counter-claim, alleged that there was due him upon such account the sum- of $125.25. A jury trial resulted in a verdict for appellee in the sum of $120. Motion for new trial having been interposed and overruled, judgment was rendered upon the verdict.

The opinion is in response to the following question submitted by the governor in pursuance of amended section 3, article 6, of the constitution: “ To the Honorable the Supreme Court of the State of Colorado: “ Síes : At the petition of the county commissioners of the counties of Washington and Turna, a copy of wrhich is herewith attached, I would respectfully request the opinion of the honorable court in answer to the following question, to wit: Does section 6 of article 11…

<p> JError to District Gourt of La/rimer Oounty. </p>

In 1886 Tabor brought suit against Clark and others, alleging in his complaint that Clark, being the owner of the premises therein described, entered into a written contract for the sale thereof to certain parties, which contract was afterwards, with the knowledge and consent of Clark, duly-assigned to the Denver Circle Beal Estate Company; that this contract was of great value to the company; that plaintiff was. a stockholder in said company; that two of the remaining…

Is the court below plaintiff in error was adjudged guilty of wilful contempt of court and fined therefor in the sum of $150. The alleged contempt consisted in his making and causing to be filed a petition for change of venue in a certain case at the time pending in the district court of Gunnison county, and to which action plaintiff in error was the real party in interest, although not a party to the record.

<p>1. Attachment on Debts Not Due.- — Under General Statutes, section 2003, providing for attachment in certain cases upon debts not at the time due, defendant in attachment on notes not due is not entitled to judgment on the merits, on the ground that the notes were not due when the suit was instituted, when plaintiff brings himself within the provisions of the statute by his affidavit and sustains the grounds of attachment by his evidence.</p> <p>2. Appeal bbom Justice’s Judgment to County Coubt — New Tbial of All Issues.— Where in an attachment before a justice of the peace the issues in attachment and upon the merits are tr-ied at the same time, and judgment on both issues is rendered for defendant, from which plaintiff appeals, the county court should retry the issues in attachment, as well as on the merits, under General Statutes, sections 1979, 1987, providing for the right of appeal from all judgments rendered by justices, and that the rights of the parties shall be the same as in the original action, and shall be determined in a summary way.</p>

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

Action by Alexander O. Hunt to iecover from Millie O. Obmertz moneys received by ber as bis agent from sales and rents of bis property. From a judgment for defendant for costs, plaintiff appealed.

<p> Appeal from District Cowrt of Saguache County. </p>

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

<p>1. Dissolution of Injunction in Vacation.— 'Where an injunction has been awarded after notice, it is error to dissolve the same in vacation ; but, on an appeal from the final judgment in the action, such error is not ground for reversal unless it appears that such premature dissolution was prejudicial to the substantial rights of the plaintiff in the final adjudication.</p> <p>2. Priority of Eight — How Answered.— When a party has acquired a prior right to the water of a natural stream by a valid appropriation thereof to a beneficial use, another party cannot justify an interference with such prior right by merely showing that he is wholly dependent upon, the same supply of water; but, in an equitable proceeding for some purposes, even though not as a bar to such prior right, it may be proper for defendant to allege such dependence in connection with other averments of the answer; and it is not error to refuse to strike out such matter unless it is made to appear that its retention, in some way, may have improperly affected the final decision of the cause.</p> <p>3. Evidence Not to Be Weighed in Appellate Court —Under the appeals act of 1885, unless the printed abstract shows that all the material evidence was taken by deposition or before a referee, and that the evidence and exhibits are full and complete, it is not incumbent upon the appellate court to sift and weigh the evidence, nor will the findings of the trial court in such case be reversed upon the mere weight of evidence.</p>

' The appellant, Mrs. Mary C. Malone, filed her bill against, the defendant, George McCullough, and sought the reformation and specific enforcement of the following agreement : “ Denver, Colorado, March 3, 1886. Deceived $200 of Mary C. Malone as part payment of $16,000 for lots 1, 2, 3 and 4, block 241, East Denver; balance of $15,800 to be paid on delivery of warranty deed, to be clear and unincumbered. If the title to same is not furnished, the $200 is to be refunded.

On rehearing. This was an action brought by Annie McGerr, plaintiff below, to recover the value of certain live-stock, consisting of eight cows and three yearlings, which she claimed to own and possess as her own property, and which she alleges were wrongfully taken and converted by defendants to their own use.

Suit upon promissory note. Appellee, Frank A. Hommel, as plaintiff below, alleges in his complaint that, at the time of the execution and delivery of the note, appellant Max Melsheimer, and one John H. Anderson, constituted and were doing business under the firm name and style of Max Melsheimer & Go.; that as such firm, on August 2, 1881, they made, executed and delivered to the plaintiff their certain promissory note in words and figures as follows, to .wit: “ $500.00.

Appellee, Andrew Meldrum, was married to appellant, Mary, upon the 3d day of December, 1884, in the county of Delta, in this state. At the time of the marriage appellant was possessed of no estate whatever. Appellee, however, was then possessed of both real and personal property, his total resources amounting to about $50,000. A ranch in Delta county and an interest in the Guston mine, situate in Ouray county, constituted the bulk of his property.

The Heaver & Santa Fe Bailroad Company instituted, in the Pueblo couuty district court, condemnation proceedings for the purpose of acquiring title to certain real property situate in the city of Pueblo, desired by the company for depot purposes. Included in the property sought to be condemned were two lots, to wit, lots 15 and 16, block 19, State addition to Pueblo, the title in fee to which was shown by the land records to he in C. M. McLaughlin, defendant in error.

The appellant, plaintiff below, is a domestic corporation doing business in the city of Denver; the appellee is a foreign corporation organized under the laws of, and engaged ■in mining in, the territory of New Mexico. 1 In August, 1885, the two corporations entered into a written contract by which appellant was to manufacture, furnish and erect at the mines of appellee in New Mexico, certain machinery and appliances for the reduction of ores, for $39,260.

The facts necessary to an understanding of the opinion may be stated, in substance, as follows: Williams, the defendant in error, commenced suit against Given and Abbott, and caused the Denver & Rio Grande Railway Company to be garnished in the sum of $485.

<p> Appeal from District Court of Arapahoe Cou/nty. </p> <p>The case appears in the opinion.</p>

The following proceedings were had and opinion announced upon receipt of, and in response to, the communication from the governor appearing below: Section 3 of article 6 of the constitution of Colorado contains the following provision: “The supreme court shall give its opinion upon important questions, upon solemn occasions, when required by the governor, the senate, or the house of representatives; and all such opinions shall be published in connection with the reported…

In May, 1881, the parties to this action entered into a written contract, whereby Fassbinder agreed to sell and convey to Garbanati “lots Hos. 20 and 21, in block Ho. 6, in the town of Horth Durango, in La Plata county, state of Colorado, as surveyed, staked and platted by C. M. Perm, civil engineer,” etc. The lots thus described fronted on a street called “ Grand Avenue.” At the time of executing the written contract there was no street or alley in the rear . of the lots.

In this action appellee Kinclel, as plaintiff below, instituted this suit to recover money alleged to have been paid by him and received by appellant without consideration, by the mutual mistake of the parties. The defendant, in his answer, admits the payment of the money, but denies that the same was paid or received by mistake, or without consideration, and avers that the amount was paid in satisfaction of a just claim against the plaintiff.

This action was instituted by appellant Lncien L. Patrick, as plaintiff below, against appellees, George W. Orowe et al., to procure a decree declaring plaintiff to be the owner of a half interest in a lease upon an eleven-twelfths interest in the “ Celeste ” lode, a mining claim situate in Pitkin county, Colo.

At a municipal election held in April, 1889, relator Barton and respondent Londoner were opposing candidates for the office of mayor of the city of Denver. The returns showed an apparent majority for respondent, who was duly declared elected, received his certificate of election, took the requisite oath, and entered upon his official duties. Kelator at once instituted the present proceeding, and a demurrer to Ms complaint or petition was sustained.

<p>Appeal — Jurisdictional Amount — Intervention.— In replevin, where a plea of intervention was filed by a third x>erson, there was a general verdict and judgment in favor of x>laintifi without any mention of the plea of intervention. Held that, apjieals being allowable only when a judgment “ shall amount, exclusive of costs, to the sum of $100, or relate to a franchise or freehold ” (Code Civil Proc. § 388), and intervenor’s liability for costs being- less than that sum, even if the judgment be treated as a dismissal of the intervention, an appeal by intervenor would not lie.</p>

This was an action originally brought by Haas as plaintiff, against Slater, in a justice’s court to recover a small money judgment. On appeal in the county court plaintiff recovered judgment for $112. The defendant Slater appeals to this court.

The following questions were by the state senate submitted to the supreme court for determination: “ First. Under the state constitution, can an intermediate court be legally created having appellate and final jurisdiction? “ Second. If such a court can be legally created, having co-ordinate jurisdiction with the supreme court in certain classes of cases, what jurisdiction could be conferred, and to what extent as co-ordinate jurisdiction? “ Third.

<p>1. Maintaining a Ditch in the Street of a City — Right of Action by an Abutting Property Owner Who Suffers Special Damage. — Since the city of Denver acquired its streets subject to the prior lawfully acquired right of a ditch company to construct and maintain a ditch in some of them, one who, long after the construction of the ditch, purchased land abutting on such a street, cannot recover from the ditch company for the maintenance of the ditch, unless he suffers special damages thereby.</p> <p>2. Insufficient Allegations of Complaint to Warrant Recovery. Dnder these circumstances, allegations of the complaint that the ditch is dangerous to the public health and safety, and that it is a public nuisance, without any averment that the damages for which the plaintiff seeks to recover resulted from an unlawful, improvident or negligent use of the ditch, contain no averment of special damages, and none can be recovered.</p>

Defendant in error commenced this suit on the 23d day of February, 1886, by filing a complaint in which it is alleged that she then was, and at all times since January 1Y, 1883, has been, the owner in fee-simple of certain property, describing the same, and of the buildings and improvements thereon, “ which but for the injuries hereinafter complained of would be of the value of, to wit, $15,000, but which, because of said injuries, are only of the value of $Y,500.” “ (2)…

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

The opinion of the court is in response to the following communication from the honorable the house of representatives : ££ Whereas, there has been introduced in this body a bill known as £ House Bill Ho. 165,’ entitled £ A bill for an act to provide for the creation of districts to be benefited by certain public improvements, and of a bonded indebtedness for the purpose of making such improvements,’ a copy of which is hereto attached: “ Therefore be it resolved by the house…

Upon the announcement of the foregoing opinion the honorable house of representatives made further inquiry concerning the constitutionality of House Bill Ho. 165, designating the following provisions of the constitution as bearing upon the subject, to wit: Section 3 of article 10; section 8 of article 11; section 35 of article 5; and section 1 of article 7.

The opinion of the court is in response to certain questions by the house of representatives, as follows: “ Whereas, there have been introduced, into both branches of the general assembly bills concerning amendments to the city charter of the city of Denver, providing that wherever the owners of the majority of lots abutting on a street or alley or a section thereof sliaE petition the city council for the paving or grading, or either or both, or wherever the board of public…

A copy of House Bill Ho. 10: “ In relation to the weighing of coal at mines,” was submitted to the court requesting an opinion whether said bill, if enacted as a law, would operate to deprive persons affected thereby of their property without due process of law or without just compensation ; and whether, said bill, if passed by the legislature, could be sustained as a valid police regulation.

The following statement sufficiently explains the question propounded: The Colorado Central Railroad Company was incorporated in 1865 under a special charter and at once proceeded to the construction and operation of its railroad.

Three questions are embraced in the resolution. The first has reference to the fiscal years from the revenues of which the appropriation for the support of the state government for the next two years may properly be made.