Volume 16 — Colorado Reports

( This was a proceeding in condemnation, instituted by defendant in error, the Colorado Midland Railway Company, to acquire the right of way for a railroad across placer mining property of plaintiff in error, the Twin Lakes Hydraulic Gold Mining Syndicate (Limited).

<p> Appeal from, Dist/riot Court of Pithm County. </p>

<p> Error to Dist/rict Court of El Paso County. </p>

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

It appears from the record in this case that in September, 1886, the Ancient Order of United Workmen, a secret society organized and established for the purpose, among other things, of insuring the lives of its members, issued to one Sterling D. Bouse, a member of the order, a certificate of insurance in the following words and figures, omitting the formal parts, to wit: “ This certificate, issued by the authority of the Supreme Lodge of the Ancient Order of United Workmen,…

This was a proceeding in condemnation on the part of appellant to acquire a right of way ten feet in width across a piece of ground occupied as a mill-site, and on which there was a mill for the reduction and treatment of ores on North Clear creek, at Black Hawk.

<p> ffl'ror to Arcvpahoe Comfy Cowrt. </p>

<p>1. Cross-demands and Counter-claims — Evidence on Decease of One Party.— Section 58 of the Civil Code, which provides that, where cross-demands exist between two persons, neither shall be deprived of the benefit of counter-claim in suit by the assignment or death of the other, does not prescribe a rule of evidence nor affect the mode of proof existing at the time of its adoption.</p> <p>2. Statutory Disqualification of a Party, as Witness, Not Repealed.— This provision, therefore, does not repeal section 3643, General Statutes, which, with specified exceptions, forbids one party to a suit testifying where the adverse party is executor or administrator of a deceased person, and the matter in controversy existed prior to decedent’s demise.</p> <p>3. Repeals by Implication.— Repeals by implication are not favored. They are never recognized if there is serious doubt concerning the legislative intent.</p>

Appellant and Joseph Mason were associated as copartners. The firm was the owner of certain mill property, and-carried on a milling business. It also became the owner of herds of cattle and horses, and transacted the usual business in connection therewith. On the 11th of February, 1881, Mason suddenly died, and appellees succeeded as legatees to all his property, including his interest in the partnership assets.

The plaintiff’s cause of action as stated in Ms complaint, omitting the formal allegation, is as follows: The plaintiff on the 20th day of December, 1887, in the county of El Paso, and state of Colorado, and at the time of the injuries complained of, was in the employ of the said defendant as brakeman, and was engaged at said Eanceville Junction, in said county, in coupling freight cars for the said defendant, as by the nature and terms of Ms employment he was required to…

<p> Error to District Court of Eio Cramde County. </p>

This is an agreed case, submitted for decision without suit under chapter 24 of the code.

Habeas Corpus. ■ Hearing upon officer’s return to writs. The petitioners, Hercules S. Porteus and Denyse Bose Porteus, were required by order of the district court of Arapahoe county to furnish bail upon a writ of ne exeat república, and, upon failing so to do, were placed in custody of the sheriff of Arapahoe county. For the purpose of testing the legality of the imprisonment, they now apply to this court to be discharged upon habeas corpus.

<p>Landlord and Tenant —Liability of Tenant — Holding Oye® — ' Increase of Rent. — In case of a tenancy from month to month, the landlord cannot, by notice to vacate, fix the tenant’s liability, if he holds over, for a greater rent than under the old lease, and without regard to the value of the use, unless the tenant expressly or impliedly assents to the increase.</p>

This was an.action by Samantha J. Wilms 'against Benjamin Ward and his sureties upon his official bond as constable. The complaint charges, in substance, that, by virtue of a certain execution against one F. W. Wilms, the defendant Ward had illegally and forcibly taken possession of a stock of merchandise belonging to plaintiff, and had wrongfully appropriated the same, to her damage, etc.; that said acts were done by Ward under color of his office as constable.

Henry H. Stotesbuby was plaintiff below, and by this suit sought to be declared the owner and awarded the possession of a certain certificate for twelve thousand five hundred shares of the capital stock of the Agassiz Consolidated Mining Company. Injunctive relief was also sought in aid of the action. Of the defendants, James Dunne alone made defense.

Plaintiffs in error, Rutter & Johnson, recovered judgment against Shumway, the defendant in error, before a justice of the peace, for the sum of $49.60 and costs. They then sought by process of garnishment to subject certain moneys deposited by Shumway in the Roulder Rational Bank to the payment of said judgment. Shumway claimed said moneys as exempt from garnishment under the act of March 28,1885 (Sess.

<p>Costs —Equity Suits — Discretion.—Where, in a suit to enjoin the infringement of water-rights, the questions of fact submitted to the jury are found in defendants’ favor, and the chancellor finds that at no time prior to the trial did defendants interfere with or damage plaintiffs’ rights, his judgment against plaintiffs for costs will not be disturbed.</p>

<p> Appeal from JDist/riet Court of Lake County. </p>

<p> A.ppeal from Superior Oourt of Denver. </p>

<p>1. Fobheb Recoveby Conclusive Evidence in Ejectment. — In an action of ejectment brought by the plaintiff for the recovery of a strip of ground, which had been the subject-matter of a previous litigation between the same parties in the same court, and in which suit the present plaintiff, on the issue of title in fee tendered by him, recovered judgment against the present defendant, which has never been set aside or reversed, the record of such judgment is competent evidence in the plaintiff’s favor, and conclusive of the rights of the parties.</p> <p>2. Estoppel — Identity of Pabties and Issues. — A recovery in one suit upon issue joined on a matter of title is conclusive upon the subject-matter of such title in any suit between the same parties or their privies. The only inquiry is as to the identity of the parties and the issues; and when it is apparent from the record of the former suit that they are the same, the judgment is conclusive evidence in any subsequent litigation over the subject-matter of controversy.</p>

Appellant (defendant below) was a corporation engaged in mining and producing ores in the years 1883-84 in the county of Lake. Appellee tvas a corporation engaged in buying, selling, smelting and reducing ores. Appellant was a large producer of ore, and had been prior to December 1, 1883.

<p> Appeal from Distn'iet Oourt of Qilpin Oownty. </p>

<p>1. Wrongful Seizure Under Attachment — Replevin Against Sheriff.— Replevin against a sheriff for the wrongful seizure of plaintiff’s goods under an attachment against another can be brought in any court of competent jurisdiction, and need not be brought in the court out of which the writ of attachment issued.</p> <p>2. Refusal of Instructions, When Proper.— It is proper to refuse to give instructions to the jury which are fully covered by other instructions given, and also proper to refuse instructions containing correct abstract propositions of law, but having no application to the issues being tried.</p> <p>3. Instruction — Preferred Creditor’s Knowledge of Debtor’s Financial Condition. — While the personal relations existing between an insolvent debtor and a preferred creditor constitute a proper subject for the consideration of the jiny in reaching a conclusion as to the knowledge possessed by the creditor of the debtor’s embarrassed condition, such knowledge to not a necessary inference to be drawn from the extent or character of them friendship. It is therefore proper to refuse to instruct the jury that from the fact of their intimacy they may infer that the creditor knew of the debtor’s condition.</p> <p>4. Assignment of Error — Verdict Not Supported by the Evidence.— Where there was evidence upon which the jury could find the judgment rendered, whatever may be the opinion of the appellate court as to the true merits of the case, the verdict will not be interfered with, unless it appears that they were actuated by passion or prejudice.</p>

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

An action in ejectment to recover the undivided one-half of certain property in the town of Greeley. In January, 1819, Henry W. Lee,'appellee, recovered a judgment against Edward T. and 'William A. Nichols in the county court of Weld county for the sum of $93.50. Execution issued and returned, with indorsement of $18 and some cents, as having been made, and no further property' found.

<p>1. Appeal Under Act op 1885 — Requirements op the Abstract.— In the prosecution of an appeal to the supreme court under the act of 1885, the appellant’s abstract of the record must contain sufficient of the proceedings to enable the court to fully understand and determine the questions presented for decision, and in default of such an abstract the appeal must be dismissed.</p> <p>3. Tax Sale of Personal Property —Regularity of Proceedings Questioned on Appeal.— Where the contest below involved the regularity of a tax sale of personal property, the validity of the tax, assessment, levy, sale and all the proceedings being denied by the appellant, who was plaintiff in the trial court, and the same questions- are presented here, the appeal must be dismissed where the abstract of the record fails to contain exemplifications of the tax schedule, assessment roll, bill of sale from county treasurer to purchaser, and other necessary exhibits.</p> <p>3. Tax Warrant Not Judicial Process.— A warrant to collect taxes is not a “process,” within the meaning of the provision of the" constitution relative to judicial proceedings, and it is not essential to its validity that it shall run in the name of the people.</p>

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

<p> Error to District Court of Mesa County. ■ </p>

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

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

The pleadings in this cause are very voluminous, containing over two hundred folios. A brief summary of them will suffice for an understanding of the opinion. The Travelers’ Insurance Company, plaintiff, hereinafter called the Insurance Company, commenced this action as the holder of certain bonds executed by the Citizens’ Ditch and Land Company, hereinafter called the Ditch Company.

Appeals from District Oourt of Lalee Oounty. Both of these appeals are from the same decree in the court below; by stipulation they are considered and determined together. In 1880, Mrs. Fisher and Nicholas Finn, trustee, etc., were the owners of the “American Flag,” a mining location near Leadville; Messrs.

Charles K. MoHatton during his life-time held a certificate of membership in the Endowment Rank of the Order of Knights of Pythias. This certificate was also in effect a policy of insurance, the amount of the risk being $3,000.

This was an action by Alfred H. Clements, plaintiff below, against John W. Gaynor and Joseph Standley. Plaintiff alleged an express contract by which, in consideration that he should obtain a purchaser for defendant’s horses, he should receive five per centum of the gross sum realized from the sale; that he procured a purchaser to whom the horses were sold for a large sum of money, but that defendants had refused to pay his commissions.

The judgment sustained a demurrer to the complaint. The substantial averments of the pleading were that the Union Smelting & Refining Company was a Colorado corporation organized in 1885, which afterwards bought of the plaintiffs large quantities of ore, and failed to pay about $8,500 of the purchase price.

This was an action by Michael O’Brien, plaintiff below, against The Colorado Midland Railway Company, defendant below, to recover damages for personal injuries to the plaintiff, alleged to have been caused by the negligence of the defendant company in operating its railroad. Yerdict and judgment were rendered in favor of plaintiff for $13,000. The defendant company brings the case to this court by writ .of error.

<p>1. Conveyance op Mining Claim — Grantor Cannot Acquire Adverse Claim Thereto. — One invested with possessory title to a mining claim, and who, in pursuance of a contract .of sale thereof, executes and places in escrow a deed to the purchaser, with covenants of warranty aga'nst all adverse claims and incumbrances, except as against the United States, cannot lawfully himself acquire an adverse claim thereto, while seeking to enforce the collection of the purchase-money, by judgment against the purchaser.</p> <p>2. Laches op Grantee Do Not Avail Grantor.— The neglect of the grantee to comply with the mining laws of the government, by reason of which its possessory rights were liable to forfeiture, gave its grantor no right to enter and acquire an adverse title to the claim; such conduct being both a breach of faith with his grantee and a violation of his covenants.</p> <p>3. Equity Never Assists in Enforcement op Unjust Claims.— One seeking to destroy the very title he has contracted to convey will not be assisted by a court of equity to collect the purchase-money therefor out of other property of the grantee by subordinating the valid claims of third parties to the payment of such purchase-money.</p>

Oh the 24th of May, 1883, Edgar D. Parker, being insolvent, transferred, by bill of sale, to' appellee Cathcart a certain stock of goods in the city of Pueblo. This transfer -was absolute on its face and the alleged consideration was $15,000. Cathcart immediately took possession and proceeded to dispose of the goods in the ordinary course of trade.

O. W. Elwood was plaintiff below. A. G. Hoopes, receiver of the Warrior’s Mark Mining Company, and the German National Bank of Denver were defendants. The action was brought by plaintiff in his own right and as assignee of certain other miners to enforce certain miners’ liens against the property of the Warrior’s Mark Company.

Appellee as plaintiff instituted this action against Charles F. Cook, Charles H. Scott and Wilbur C. Lothrop as defendants. The suit was originally brought upon two promissory notes, but prosecuted upon one only, to which the names of the defendants appear as joint makers. Reither Cook nor Scott made defense.

This was an action by the Union Bank of Denver, plaintiff below, against Charles H. Scott and Wilbur C. Lothrop upon a promissory note, dated June 9, 1885, payable sixty days after date, alleged to have been executed by them in favor of the bank for the sum of $300 with interest. The defendant Scott made no defense.

This action was begun before a justice of the peace upon a promissory note in favor of appellee, signed by appellant and two other parties. The note was for $177, and provided for the payment of interest after maturity at the rate of three per cent, per month. Judgment being rendered in favor of plaintiff, an appeal was taken to the county court. There the cause was retried, and a recovery by the plaintiff again sustained.

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

<p>1. Real Estate Broker — When Entitled to Commission. — When an agent or broker in good faith has introduced to his principal an acceptable purchaser willing and financially able to buy on the terms named by the principal, he is entitled to his commission even though through the fault of the principal the sale does not actually take place.</p> <p>3. Commission Not Defeated by Purchaser’s Subsequent Default. When a sale to the purchaser thus introduced by the agent is consummated, the agent is entitled to his commission even though it may afterwards transpire that the purchaser is unable to meet deferred payments as they become due.</p> <p>3. Verdict — Jurors’ Affidavits to Impeach. — As a general rule, affidavits of jurors stating the theory or ground upon which they rendered their verdict will not be received for the purpose of impeaching the verdict.</p> <p>4. Evtdenoe — Error Without Prejudice. — Where evidence favorable to appellant is erroneously admitted, the error is without prejudice and not ground for reversal.</p> <p>5. Instructions —Record Should Show What Objections Were Made.— Section 387, Civil Code, abolishes the formality of noting exceptions to the giving of instructions. But the record should show that by some proper objection al.tention is invited to the alleged error and opportunity given for its correction at the time.</p>

Original Proceeding in Nature of Quo Warra/nto. The eighth general assembly adopted an act creating a court of appeals. The essential features of this act are as follows: Tira court is made a court of record with appellate jurisdiction only, and is authorized to issue the necessary writs and other processes in aid of such jurisdiction. Its judges, three in number, are to possess the same qualifications and to receive the same salary as the judges of the supreme court.

Action to recover rent alleged to be due upon a written lease. Defense that the demised premises were leased to be used as a bawdy-house, and that they were so used with the knowledge and consent of the landlord. Judgment for defendant.

<p>Eminent Domain — Failure of Verdict to State Benefits.— In a trial to a jury to condemn the right of way through a tract of land under the eminent domain statute (Civil Code, sec. 254), where the court, although requested, refuses to instruct the jury that their verdict should be in language and form as provided in the act, and the verdict fails to state the amount and value of the benefit, if any, to the land not taken, as required by the act, and the court refuses to set aside the verdict and grant a new trial, the judgment will be reversed.</p>

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

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

On the 17th of August, 1886, appellant issued and delivered to M. J. McDonald, at Leadville, a policy of insurance, called an “ accident policy,” on his life, for $1,500, payable, in case of his death, to his mother, Margaret Murray (appellee).

<p>1. Irrigation — Amending General Decree Awarding Priorities.— An action brought by.the owner of an irrigating ditch against the owners of two similar ditches, praying that the general decree rendered in pursuance of the act of 1881 be so amended as to give the plaintiff’s ditch priority over the ditches of the defendants, said decree having awarded the priorities to the defendants, was maintainable under section 342 of said act, it appearing to have been instituted within four years next after the general adjudication, notwithstanding the facts that plaintiff had failed to file his claim to priorities previous to the general adjudication, or within two years thereafter as required by sections 1 and 26 of said act.</p> <p>2. Limitations of the Act of 1881 Construed.— The failure of the ■ plaintiff to file his claim for water previous to the adjudication, or for a review of the decree within two years afterwards, as required by the statute, did not raise the legal presumption that he had no rights, or that he intended to waive any rights he may have had; and such a case is not within the bar of the statute, notwithstanding the seeming want of harmony between the different sections thereof. ■</p> <p>3. Variance and Inconsistencies Between Complaint, Evidence and Decree.— Where the allegations of a petition for equitable relief in a cause are denied by the answer, and there is no sufficient proof of any material allegation, or of any material fact necessary to support a decree for the relief sought, and the decree rendered is at variance with both the evidence and the allegations of the petition, it cannot be sustained; as where a petition claimed priority for a ditch located on section 33, township 9, alleging that the work of construction was commenced in April, 1875, and continued with diligence and without intermission until completed, whereas the testimony produced showed the. construction of a ditch on section 4, township 10, there being no proof whatever that the ditch described in the petition had any existence previous to the year 1887, a period of at least ten years after the date alleged, or that the work of construction was commenced in either 1874 or 1875, and the decree, in addition to the foregoing inconsistencies, awarded the plaintiff’s ditch priority, dating from April, 1874.</p> <p>4. Changing Head of Ditch, or Building New Ditch, Not a Forfeiture of Rights. — Where an appropriation of water-rights has been properly made, the changing of the head of the ditch to a point higher up the stream, or the building of a new ditch to carry the water of the former appropriation, works no forfeiture.</p> <p>5. Prior Rights Not Lost by Changing Method of Carrying Water The mere fact that a person, by a parol agreement with a neighbor, obtained his water for several years through the latter’s ditch, does not affect his right to receive water through his own ditch as against the neighbor’s grantee.</p> <p>6. Correct Basis for Decree of Priority. — The quantity of water actually appropriated by a party at the date claimed therefor, and not the capacity of his ditch ten or twelve years afterwards, should be the basis of the decree adjudging his priority.</p>

In October, 1882, Matthew O. Wilbur brought this suit against the First National Bank of Colorado Springs to recover the difference between the price at which certain personal property was sold under mortgage by the bank, and its value in the market at the date of sale; and also to recover the difference between the actual value of certain assigned book accounts and the price at which the same were sold.

Defendants in error, plaintiffs below, brought this action, alleging in their complaint that defendant was indebted to them on an account in the sum of $1,000 for services as the attorneys of defendant, rendered at his instance and request and upon his retainer, between the 1st day of February, A. D. 1883, and the 1st day of June, A. D. 1884, in prosecuting and defending suits, drawing and preparing instruments in writing, taking depositions, preparing motions and notices…

Court. This action was originally commenced before the police magistrate of the city of Durango.

From the record it appears that one Brasher was engaged in business as a liquor merchant in the city of Denver prior to the commencement of this action in the court below, and that certain of his goods were stored with Graham, Weber & Hill, warehouseman. Brasher assigned the warehouse receipts to Marsh, plaintiff in error, to secure certain alleged indebtedness in favor of one Mrs. Howard and one Mrs. Smith, respectively.

Action for divorce, alimony and custody of minor children. Appellee, Laura Cowan, as plaintiff below, rested her application for divorce, etc., upon'two distinct charges against the defendant Edwin B. Cowan, viz., adultery and extreme cruelty. The trial of these issues resulted in a general verdict in favor of appellee. This verdict was rendered upon the 2d day of January, 1889. A motion for a new trial was filed and denied upon January 21,1889.

Action for possession of and damages to real property. Appellee, as plaintiff below, filed its complaint against the appellant, in which, after alleging its own corporate existence, it is declared in substance that it was, and since August 15, 1886, had been, the owner and entitled to the possession of the Little Winnie lode mining claim, situated in said county, basing its ownership upon a full compliance with the local laws and rules of miners, the laws of the United…

<p> Petition for Mandamus. </p>

The record in this case shows that on and prior to March 5, 1881, Asa B. Hutchinson was the owner in fee of a certain lot in the city of Leadville, at which date he executed and delivered a deed for the same to his wife, the plaintiff and appellee herein.

<p>1. Execution Sale op Judgment Debtor’s Interest in Real Estate.— While under the statute every interest in land, whether legal or equitable, is subject to levy and sale on execution, and the purchaser of such interest may maintain an action to determine the extent thereof, yet the judgment creditor may resort to an action prior to the sale, for the purpose of having the debtor’s interest determined, and the question of title settled in advance of the sale.</p> <p>2. Husband and Wipe May Contract with Each Other Concerning Real Estate.— In the absence of fraud the contracts of husband and wife in relation to real estate are as valid as if no marital relation existed between them. Either one may convey good title to the other by deed direct, and when they are jointly interested in land, . the title of which is held in the name of one only, such one may be adjudged to hold the interest of the other in trust.</p> <p>3. Complaint Against Wipe as Trustee op Husband — Allegation op Insolvency Unnecessary.— In an action by a creditor of the husband against the wife, as- trustee of the latter’s interest in land held in her name, to compel a conveyance to the husband of his interest therein, in' order that it may be subjected to the payment of his debts to the plaintiff, an allegation of the husband’s insolvency is unnecessary.</p>

In tbe year 1886 Henry T. Morton, defendant in error, obtained in tbe county court of Bent county a decree of divorce from Bridget E. Morton, bis wife. Ho personal service was bad upon tbe defendant in that suit; tbe service was by publication.

In December, 1883, while assuming to exercise police authority within the depot grounds of the appellants in the city of Denver, one E. II. Eust arrested the plaintiff Smith and placed him in confinement. At this time Smith was in the employ of Marrs & Middleton, baggage and transfer men doing business in that city.

<p>1. Intervention in Attachment Suit Before Justice of the Peace. Under General Statutes, 1883, section 2011, providing that third persons must assert their rights to property seized under attachment issued by a justice of the peace before the trial of the main action, a claimant of a fund garnished under an attachment cannot intervene after the trial of the main action and rendition of judgment therein for plaintiff.</p> <p>2. Order Dismissing Petition of Intervention in Such Case Not Appealable.— An appeal by the intervenor from the order of the justice dismissing the petition of intervention, because filed after trial in the main action, should be dismissed, as the intervenors have no standing in court.</p> <p>3. Conditional Assignment of a Fund to Intervenors, and Eights of Parties Therein.— Where the assignment of the fund, subsequently garnished, to the intervenors was not absolute, but merely as a security for what indebtedness the assignor might incur to the assignee within a stated period, and the debt so incurred was less than the amount of the fund garnished, the judgment for the intervenors, had their fights been asserted in apt time to render their appeal from the justice regular, should have been for only so much of the fund as was necessary to satisfy their demand, and judgment in favor of the plaintiff in the attachment should have been given for the balance.</p>

<p> Appeal from Las Anm%as Count/ij Court. </p>

This was a proceeding in condemnation started by the railroad company in July, 1886, against Croman and numerous other parties, to obtain title to certain lands in the vicinity of the city of Aspen required for trackage and other purposes. The property across which the company sought to run its lines- were sundry mining claims averred to belong to various defendants, who were made parties to the suit.

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

In January, 1887, the Solis Cigar Company filed its bill against Pozo & Suarez, seeking to restrain them from interfering with a trade-mark which the company claimed to own, and to recover damages. It appears that several years prior to the alleged infringement R. Solis had been a manufacturer ol cigars in Denver, and had adopted the brand to which the company claim title. The corporation was organized after the adoption of the brand.

On the 14th day of June, 1881, appellee recovered a judgment against Michael Green, in the district court of Arapahoe county, for the sum of $1,624 and costs, from which Green appealed to this court. Pending such appeal, about March 1, 1883, he died.

<p>1. Conveyance of Realty in Trust — Parol Evidence Not Admissible to Contradict Recitals. — A deed of real estate executed bj“B. * * * of the first part" to “M., assignee of said B., * * * of the second part,” reciting that the conveyance was made “ for and in consideration of the conditions of the assignment made this day for the benefit of the creditors of the said B.,” is conclusive of the intent of the conveyance, that grantee took the property in trust and not as purchaser, and the language expressing such intention cannot be contradicted by parol evidence, showing the intent to have been an absolute grant in payment of debts due the grantee and others.</p> <p>2. Effect of Conveyance in Trust Where the Purpose Fails.— Where a deed of realty is made to one as assignee, in consideration of an assignment to be made by the grantor for the benefit of his creditors, and the assignment is not made, the grantee holds the legal title in trust for the grantee or his heirs.</p>

This was a suit in equity, brought by appellees against appellants, to set aside, declare void and cancel two promissory notes and a trust-deed upon certain lands in the state of Kansas, executed by appellees to secure the payment of the notes. For many years prior to the summer of 1885 one William M. Boworth was a merchant doing an extensive business in Central City in this state.

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

This action was first commenced by appellees in the county court, where a trial was had resulting in a judgment in favor of the plaintiffs; appeal was taken to the district court, and trial had with the same result.

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

This was an action brought by Charles J. Edman, plaintiff below, to recover for personal injuries alleged to have been occasioned by the negligence of the defendant, the Union Coal Company. The injuries are alleged to have occurred by the explosion of a steam boiler in certain coal mines belonging to the defendant company while plaintiff was at work therein for said company. The plaintiff recovered a verdict and judgment. The defendant brings this appeal.

<p>1. Exclusion op Women as Attobneys at Law. — By ancient and universal usage women have been denied the right to practioe law before the English courts. And during the early history of this country, a like exclusion from the profession generally prevailed.</p> <p>2. Change in Legal Status op Women Neutealizes Precedents.— A rule at the present time should not be rested upon the ground of custom or usage in relation to the exclusion of women from the profession in England or in the American colonies, or in the republic during its infancy. The marvelous change throughout this country of the last fifty years in the legal status of woman greatly neutralizes the force as a precedent of such custom or usage.</p> <p>S. Policy op Legislation Respecting Women. — The uniform and unmistakable policy of legislation in this state is to extend the legal i’ights of women, and enlarge their sphere of occupation and usefulness. The right is unquestioned of women of sufficient age, married or single, to enter all the learned professions (except the law), to pursue all vocations and enterprises of a business character, and to make contracts, form partnerships, inherit, acquire and dispose of property in all respects substantially the same as men.</p> <p>4 Applications foe Admission to the Bae — How Regarded.— Unless restrictive provisions be found in the statutes or constitution, applications for admission to the bar should be regarded with the judicial favor usually extended when equality of rights is involved.</p> <p>5. Construction op Statutes.— A statute is to be interpreted in the light of other statutes constituting a part of the same legislative system.</p> <p>6. Application op Rule Extending Masculine Pronouns to Females.— The masculine pronoun is used in certain provisions of the statutes regulating admissions to the bar. But the context of the act indicates that the rule extending words importing the masculine gender to females is applicable.</p> <p>7. Qualified Electors Only Eligible to Office by General Public.— Section 6, article 7, of the constitution prohibits the election or appointment to civil or military offices of any person except qualified electors.</p> <p>8. Attorneys at Law Not Within Above Constitutional Provision.— But this provision refers to those offices which involve an election or appointment by or on behalf of the general public, and the performance of duties essentially public in their nature. And attorneys at law are not per se ■' civil officers ” within its meaning</p>

Appellees, John H. Hartman and Martin Hartman, commenced this action in the district court of Summit county. In the complaint it is alleged that the plaintiffs were partners doing business under the firm name of J. H. Hartman & Brother, and that the defendants were partners doing business as the Teller Tie & Lumber Company.

Original Application for Habeas Corpus. In June, 1891, petitioner was examined before a justice of tbe peace in and for Las Animas county, under four separate and distinct charges of obtaining money under false pretenses.

The amended complaint, inter alia, states in substance: That one Edward S. Kelley died intestate February 21, 1889, and that plaintiff is his duly appointed and qualified administratrix.

This action was commenced before a justice of the peace; hence, there are no written pleadings. The action was by Hennessey, plaintiff below, against Mr. and Mrs. Hoag, defendants, to recover for the use and occupation of certain premises for three months, at the rate of $35 per month. Upon appeal in the superior court, after hearing the evidence, finding and judgment were rendered in favor of defendants. The plaintiff brings the case to this court by writ of error.

William T. Vailes and Callahill Brown were opposing candidates for the office of commissioner of La Plata county at the general election in November, 1890. The vote being canvassed, it appeared that the total number of votes cast for said office was 1,223, of which Vailes received 614, Brown 608, scattering 1. Vailes received the certificate of election. This proceeding was instituted in the county court by Brown for the purpose of contesting the election of Vailes.

<p>1. Charge to Jury — Presumption on Defective Record. — When the charge to the jury is not embodied in the record, the supreme court will presume that it correctly stated the law of the case.'</p> <p>2. Improper Address to Jury — Waiver op Objections.— As ageneral rule the failure of opposing counsel to interpose objection when improper language or argument is being used in addressing the jury will be treated by the supreme court as a waiver of the objection.</p> <p>3. Criminal Cause — Motion por New Trial After Lapse op Term. After the final disposition of a criminal cause and lapse of the term, the .trial court has no jurisdiction to entertain an application to reconsider its ruling upon motion for a new trial.</p> <p>4. Vacation op Judgments —Code Provisions Relate to Civil Actions.— The provision, of the Civil Code authorizing the vacation of judgments under certain circumstances within five months after the rendition thereof is confined to civil actions; it has no application to criminal cases.</p> <p>5. Perjury by Principal Witness — Executive Clemency. — In a criminal case, if after the lapse of the term the principal witness for the prosecution admits that he committed perjury, such admission may under proper circumstances be ground for the exercise of executive clemency.</p> <p>6. Testimony in Criminal Cases — Accomplice—Corroborating Circumstances. — The testimony of an accomplice is received with caution and regarded with suspicion. The great importance of corroborating testimony or circumstances is always urged upon juries, and verdicts of conviction are seldom sustained in the total absence thereof.</p> <p>7. Newly-discovered Evidence — Testimony op Accused.— Testimony of the accused concerning his whereabouts on the day of the forming of a conspiracy to commit crime is not newly-discovered evidence. Besides, proofs of his whereabouts mentioning no particular hour, and which, if true, nevertheless leave ample opportunity for his being present and participating in the conspiracy, are not so material as to render the court’s ruling denying a new trial reversible error.</p>

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

<p>1. Specific Performance — Sale of Land by Agent. — Where suit is brought for the specific performance of a contract made by an agent for the sale of land, unless there has been a subsequent ratification, it must appear that the prior authority conferred upon the agent was strictly pursued.</p> <p>2. Burden of Proof that Agent Pursued His Authority.— The plaintiff has the burden of establishing such compliance by the agent when the question is properly in issue under the pleadings.</p> <p>3. Departure from Authority by Agent — Risk of Purchaser.— The departure from the agent’s authority may be so palpably in the interest of his principal that a court of equity will decree specific performance. But in general the conclusion of the agent and purchaser that a contract is more favorable to the principal than the terms of the agency authorize is subject to the risk of refusal by the principal to consummate the contract.</p> <p>4. Pleading — Waiver of Verified Answer.— The statutory privilege accorded plaintiff of requiring a verified answer, by verifying his complaint, may be waived. Such waiver takes place where a replication to the answer is filed, the cause is set for trial, and the day of trial arrives before objection is interposed for the want of a verifj^d answer.</p> <p>5. Judgment on Pleadings — When Motion Therefor Improper.— Technically a motion for judgment on the pleadings, because of the failure to verify the answer, is inaccurate. This motion is usually interposed only where one or more of the material averments of fact in the complaint or answer are admitted or left undenied by the answer or replication.</p> <p>6. Striking Answer from Piles — Judgment by Default.— The proper motion in the premises is to strike the unverified answer from the files and for judgment as by default.</p>

This was an action to compel the specific performance of a contract to convey real estate. John T. Rice was plaintiff below; the defendants were William H. Bush, Willard Teller and Mary D’Arcy.

This was an action by the appellee Oppenstein, plaintiff below, against the appellant Cramer, sheriff, for the recovery of certain moneys alleged to have been received and illegally retained by him as sheriff. Certain writs of execution and of attachment against Oppenstein having come into the sheriff’s hands were levied upon a stock of merchandise consisting of gentlemen’s furnishing goods, the property of Oppenstein.

This suit arises out of the same transaction as the preceding case between the same parties decided at this sitting of the court {ante, p. 495). At the execution sale the merchandise belonging to the Oppenstein stock was sold in bulk for the gross sum of $8,000. The fixtures were sold to other parties for about $139.25.

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

The appellee, Amanzo L. Jones, was plaintiff below. The following appears, inter alia, from the complaint: In February, 1884, be was the owner of certain described real estate situate in Jefferson county, Colorado, upon which one Lothrop held a mortgage to secure the sum of $8,400, this mortgage being in the form of a deed absolute on its face.

This was an action by Sara McKinna, plaintiff below, for a personal injury occasioned by falling into an excavation in the street of the town of Salida. The excavation was about six feet in width, eight or nine feet in depth, and extended about seventy feet along the sidewalk of the main business street of the town.

This action was originally begun before a justice of the peace.

<p> Error to District Gov/rt of 'Arcvpahoe County. </p>

<p>1. Removal of Municipal Officer — When Discretionary. —When the tenure of a municipal office is at the pleasure of the appointing body, the power to remove is discretionary and may be exercised without notice or hearing.</p> <p>3. Powers of City Council Concerning Bemovals from Office.— The city council is primarily a legislative and administrative body, but it may now be clothed with at least quasi-judicial authority in connection with removals from municipal offices.</p> <p>3. Manner of Behoval — Distinction Between Offices. — A distinction in regard to the manner of removals exists between those offices which are of the essence of the corporation and those which are not. A removal from an office (that of alderman, for instance) which is of the essence of the corporation can only take place for cause, and must be upon notice and investigation, with opportunity to be heard.</p> <p>4. Discretion of Council in Absence of Deception or Fraud. — The motives actuating councilmen in connection with removals are not ordinarily subject to judicial inquiry. And in the absence of deception or fraud, courts decline to interfere with the declaration of discretionary municipal pleasure by the council.</p> <p>5. Statutory Powers Not Affected by Ordinances or By-laws.— It is not within the power of a municipal corporation by ordinance or by-law either to extend or restrict the authority conferred upon the council by statuta</p>

The opinion of the court was in response to the following communication from his excellency the governor: “ To the Honorable the Supreme Court of the State of Colorado: “ Síes — The general appropriation bill passed by the eighth general assembly, a certified copy of which I herewith inclose you, providing for the ordinary expenses of the executive, legislative and judicial departments of the state government for the fiscal years 1891 and 1892, as enrolled and approved, is…