Volume 2 — Colorado Reports

<p>Practice in chancery. The practice in chancery cases, and the manner of serving process and publishing notice of suit, is regulated by the law of the Territory, and not by the equity rules of United States courts.*</p> <p>Notice by publication — when sufficient. Process should be personally served where the defendant is within the jurisdiction, and for that purpose the officer should hold the summons until the return day. A return non inventus, made before the return day, will not support a notice by publication.†</p>

<p>Error to Probate Court, Oil/pin County.</p>

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

The plaintiff, below, declared upon a promissory note at tlie February term, 1871, of the probate court. The court convened on the 6th of February, and the defendant on the day preceding, being the 5th of February, filed the general issue and several special pleas, the latter concluding with verification.

At the November term, A. D. 1870, Richard Mackey was indicted for the murder of Charles Laughrey, in the Grilpin county district court. The facts respecting the summoning of the grand jury are sufficiently stated in the opinion. The cause was removed to Arapahoe county by change of venue, where a trial was had and the jury found the prisoner guilty of involuntary manslaughter.

The transcript of the record filed in this cause set forth what purported to be a bill of exceptions reserved by the appellant, preceded by the following entry: “ Judgment for plaintiff. Defendant allowed forty days to prepare bill of exceptions herein.

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

Debt upon an attachment bond, the condition of which was as follows: The condition of this obligation is such, that whereas the above bounden George E. Cock has, on the day and date hereof, prayed an attachment out of the district court of the first judicial district of Colorado territory, in and for the county of Arapahoe, at the suit of George E. Cock, George Richardson, John Y. Scamman, John Finn and others, doing business as Butterfield Overland Dispatch Company, against…

<p>Evidence oe loss oe instrument — what shall be sufficient. Evidence tending to prove that an instrument was deposited in a desk to which several persons had access, and which was, for a time, in the possession of one Ashley, and that papers in the desk were examined by a person not named, and that after the lapse of several months, search was made in the desk for the instrument without finding it, is not sufficient to let in secondary evidence of the contents of the instrument.</p> <p>Authority oe partner— to bind his copartner by deed. In an action of covenant broken, against two persons as partners, where the execution of the instrument sued on has been put in issue, proof that the instrument was signed by one partner, is not sufficient against the other without further evidence to show that the party signing had authority to bind his copartner in that manner.</p> <p>Practice — instructing jwry to find for defendant. Where the evidence is not sufficient to support a verdict for the plaintiff, the jury may be instructed to find for defendant.</p>

Claymore brought his action in Larimer district court, and directed process to Arapahoe. Service was then had upon an agent, and the return shows that the president of the corporation was not found in that county. No process issued to Larimer county.

Alfred H. Clements filed Ms bill in the district court of Arapahoe county against Joseph P. Machebeuf and twenty-two others, alleging that he owned a certain tract of land, embracing many blocks and lots, in the city of Denver. That in the years 1864 and 1865, one James Hall, pretending to act as the attorney in fact of the complainant, conveyed by deed of general warranty, some of the said lots and blocks to the said Machebeuf and others to the other defendants respectively.

The indictment was for manslaughter, and contained three counts. In the first count, it was charged that the defendant caused the death of Fredericka Baum by the use of a bougie in and upon the body of the said Baum, she being- then pregnant with child. In the second count, it was charged that the death was caused by the use of an instrument unknown.

The plaintiff declared upon a note of hand as follows : $280. Denver, O. T., May 7, 1864. Thirty days after date, we promise to pay to Rogers & Wilcox, or order, the sum of two hundred and eighty dollars for value received, negotiable and payable without defalcation or discount, at Rogers &• Wilcox’s office, in Denver, Colorado Territory, with interest at the rate of ten per cent per month from maturity until paid. (Signed) ROBERT S. WILSON, SAMUEL E. BROWNE.

Ei'ror to District Court, Arapahoe County. Aotioh on tbe case to recover damages for injuries received by plaintiff, while engaged in driving a stage-coach for the defendants, caused by the upsetting of the coach.

Action before a justice of the peace in Grilpin county, and judgment for plaintiff for $244.40, and the costs.

Uulaweul detainer in probate court of Grilpin county. Plaintiff in error, who was defendant below, moved to quash the complaint, but as he afterward answered, no question presented by that motion was considered in this court. At the trial the plaintiff offered the docket óf a justice of the peace showing a judgment as follows: Belle Cable v. James R. Grant.

The bill was filed by defendant in error against plaintiff in error to set aside a deed made by one L. G. Tnbbs to plaintiff in error conveying certain property in Summit county, and also procure a release of a certain mortgage executed by L. G. Tubbs, John Shock and Adam L. Shock to plaintiff in error upon the same premises.

In the alternative writ the facts upon which the claim was based were set forth, and it was also alleged that the auditor had been requested to audit the account, and draw his warrant upon the treasury in payment thereof. The command of the writ was, that the auditor audit and allow the said claim of the said county of Fremont, amounting to $1,425.27, and draw his warrant in payment thereof, or that he show cause, upon a day named, for his refusal so to do.

The declaration contained five special counts, in some of which the plaintiff declared upon a promise to deliver sixty-eight head of cattle, and in others upon a promise to deliver sixteen head of cattle. In each count it was averred that the consideration had been paid but the amount of it was variously stated.

The charge to the jury, to which appellant excepted, was as follows : “ If any payments have been made by defendant since the giving of the note, the jury must believe from the evidence that each (such) payment was intended to apply upon the note before they should allow the same.”

Action on tbe case brought to the December term, 187Í, of the probate court of Fremont county, which convened December 4th. The summons was served November 27, and the declaration was filed January 24,1872, and was as follows: “Augustus Macon, the plaintiff, complains of Samuel N. Hoyt, the defendant, of a plea of trespass on the case.

The action was an appeal bond against Barrett Mining Company and George W. Barrett, before a justice of the peace, and thence removed by appeal to the district court, where judgment was given against appellants, and in favor of appellees. At the trial, the docket of Robert S. Wilson was produced, showing a judgment in favor of John G. Tap-pan and William H. Tappan, against Barrett Gold Mining Company, for the sum of $95 and the costs of suit, taxed at $8.70.

The action was replevin. When the jury retired from the bar to consider of their verdict, the court, being about to adjourn, with, the consent of the parties, directed the jury to seal their verdict and'deliver it to the bailiff in charge and thereupon to separate to meet the court at its next incoming.

The bill was brought to the January term, A. I). 1869. Complainant charged that on the 28th day of May, 1864, and the 6th of May, 1865, he was the actual occupant of lots 24, 25, 26 and 27, in block E, in the east division of the city of Denver, and the bona fide owner of one undivided half thereof, and of the improvements thereon ; that H. R. Hunt owned the other undivided half; that on the 6th of May, 1865, James Hall, in pursuance of the act of congress, approved May 28,…

Elizabeth Stone brought ejectment against William Milsap, to recover the possession of lots 15 and 16, in block 22, in the east division of the city of Denver. One trial was had, and the judgment set aside upon payment of costs. Thereafter, Edward Chase and Ellen P. Heatley, and several infant heirs of Francis P. Heatley, deceased, were admitted to defend with the said Milsap.

The action was on the case, and the plaintiff alleged that on the 18th of April, 1870, the defendant, being a body corporate, was engaged in constructing a telegraph line along F street and across Blake street, which were public thoroughfares in the city of Denver; that at and near the corner of said F and Blake streets, the said defendant, its agents, servants and superintendents, unlawfully, wrongfully, and without proper and due care and diligence, placed, stretched and…

This is the second appeal in this cause, the first being reported in 1 Colorado, 225. The writ was in the detinet against Charles C. Machette and Joseph Zollinger, for three hundred bushels wheat, ninety bushels oats, twenty bushels barley, of the value of $1,200. In the declaration there was a count in replevin and in trover. To the count in replevin, the defendants pleaded first, non detinet; second, property in the defendant, Machette ; to the count in trover, not guilty.

The bill was filed by Amelia L. Fischer and C. F. A. Fischer against Wm. Buck, Karl B. Ammunn and A. K. Buck, to foreclose a mortgage given by the said William Buck to Frantz A. Brocker. The bill was dismissed as to Ammunn, and the other defendants demurred. As originally framed, complainants appeared to claim in their own right, and the demurrer was sustained, apparently on that ground.

The indictment, which was presented at the April term, A. D. 1872, contained four counts. In the first it was alleged that on the 21st day of July, 1871, at the Fairplay post-office, in the county of Park, in the first judicial district, the prisoner feloniously did steal from and out of the post-office a certain packet contrary to the form of the statute, etc. The second count was substantially the same.

Trespass by defendant in error against plaintiff in error in probate court of Clear Creek county.

This is tbe third appeal in this canse, the first and second being reported in 1 Colorado, 165 and 406. Appellant was charged in the declaration with William 1ST. Shepherd and Parker B. Cheney, as maker of a promissory note. In the last count it was alleged that Cheney and Shepherd made the note and that it was indorsed by appellant before it was delivered to the payee. The cause was tried upon the general issue.

Gaff and others brought ejectment against Eyster in the Arapahoe district court, and at April term, 1872, judgment was given in favor of the plaintiffs. An appeal was prayed by Eyster, and the cause being brought to issue in this court, was argued at the February term, A. D. 1873.

This was a motion to dismiss an appeal for defect of authority to execute the appeal bond. The bond was subscribed in the name of the corporation by one Becker, its president, and the corporate seal, or what appeared to be such, was affixed. The authority of Becker to use the corporate seal, or execute the bond in the name of the corporation, did not appear, and the motion went upon this ground: no affidavit or other evidence of want of authority was given.

Aw act of congress, passed on the 23d of May, 1844 (5 Stat. at Large, 657), authorized the entry of lands of the public domain whereon should be situated any town, by certain officials named, “intrust for several use and benefit of the occupants thereof, according to their respective interests ; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be…

This cause was determined in this court at the term of 1872, upon appeal from a former judgment of the district court, and is reported in 1 Col. 533, where the pleadings are set forth. The judgment being there reversed, the cause was remanded and tried again at the November term, 1872, of the district court; judgment being given for the plaintiff, the defendant prosecuted this appeal.

The plaintiff below, present defendant in error, declared in debt upon a bond, dated November 38, 1870, executed by Martin B. Hayes, Samuel Mishler, B. C. Waterman, with condition as follows: Whereas, The said above bounden, Martin B. Hayes, is now in the possession of the Enterprise mill, under a lease from the said New York G-old Mining Company of Colorado ; and, Whereas, The said Hayes has this day sold to said company, two boilers and one engine now in said mill and in…

The declaration was in assumpsit against Henry J. Rogers and Grurdan H. Wilcox, late partners under the firm name of Rogers & Wilcox, to recover the sum of $1,833.33, paid the defendants in consideration that they would transfer to plaintiff certain shares of stock. December 11, 1867, on motion of plaintiff’s attorney, the cause was dismissed. May 8, 1868, Rogers, the present plaintiff in error, appeared and filed the general issue.

Charles O. Welch brought replevin in the district court of Grilpin county against Hugh McCraw, for certain goods and chattels alleged to be of the value of $200. The writ was issued August 20, 1870, and the declaration was in the cepii and detinet. The defendant pleaded: 1. JYon-detinet. 2. Property in Prank O. Sawin. 3.

This cause was before the court at the last term upon appeal, and the judgment being affirmed, defendant in error sued out an execution from the district court. The present plaintiff in error thereupon moved the district court to quash the execution, upon the ground that the cause had been removed into the supreme court of the United States by writ of error, which writ had become a supersedeas.

The suit was commenced before a justice of the peace on a promissory note in ordinary form, for the sum of $250, against David Barnes and Sarah L. Barnes, his wife, the present plaintiffs in error, and thence removed to the probate court by appeal.

The record showed that on the 9th day of August, 1867, in the district court of Grilpin county, the civil cause, Snyder v. Grimes, was called for trial.

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

* The declaration contained the common counts for goods sold and delivered; for work done and materials furnished; for money loaned; for money received by defendant for use of plaintiff; for interest; for money found to be due upon an account stated. There was no count for money paid to the use of defendant.

Iw the first and second counts of the declaration the plaintiffs declared upon a promissory note for $451.69, dated January 5,1871, payable sixty days after date.

The first count of the declaration alleges that the defendant, together with two certain other persons, namely: Oscar D. Cass and Silas W. Pisher, on the 29th of January, A. D. 1866, at the county of Arapahoe, made a certain writing obligatory, signed with his seal, and here in the court to be produced, and then and there delivered the same to the said plaintiff, etc. After setting forth the penal part of the bond, the condition is given reciting a judgment obtained in the…

Action of debt commenced on the 25th day of March, 1873, against Horace Crump, John Crump and R. R. McCormick, to the April term, 1873, of the district court of Arapahoe county.

Assumpsit upon a written instrument in this form: “ Golden City, Col. Ter., May 20,1870. “ Nine months after date, for value received, I promise to pay J. A. Remington, or order, five hundred dollars, without defalcation or discount, at Golden City, Colorado.

The bill which was filed October 5, 1872, alleges that complainant is seized in fee of lot numbered thirty in block numbered forty-nine, in the east division of the city of Denver, the same being within the limits of the west half of section numbered thirty-four, township three, south of range sixty-eight, west, etc. That, on the 28th day of January, A. D. 1868, Jacob Downing, then probate judge of the county of Arapahoe, held said lot in trust for complainant under…

Debt on an appeal bond against Lester Drake and Joseph F. Hall, the condition of which was as follows : “The condition of the above obligation is such, that whereas the said Benjamin A. Black did, on the 11th day of July, 1866, before G. M. Nulett, justice of the peace, recover a judgment against the above bounden, Lester Drake, for the sum of $269 debt, together with costs of suit, from which judgment the said defendant hath taken an appeal to the district court, in and for…

The .declaration contained two counts, the first for taking, and the second for detaining, a wagon, the property of the plaintiff. The defendant pleaded: 1st. Non cepit; 2. Non detinet; 3. Property in himself; 4.

Thk bill was filed by George F. Packard, B. F. Wood-worth and John Clark against the board of county commissioners of Jefferson county, the Golden City and South Platte Railway and Telegraph Company… Held: the capital stock of said company was only $30,000.

Objections made to jurors are sufficiently stated in the opinion of the court. The indictment was for robbery.

This was an application for mandamus to compel the county commissioners of Pueblo county to issue $50,000 in the bonds of the county to the Denver & Rio Grande Railway Company.

The action was trespass, commenced August 30, 1872, by Thomas McCunniff and Eli S. Streeter, against James R. Hugunin, James Lees and David Lees. In the first count the plaintiffs declared for ore taken from the Elkhorn lode. In the second count, for ore taken from the Zillah lode. In the third count, for. ore taken from the Zephyr lode. The fourth count was de bonis asportatis. The defendants pleaded not guilty and liberum tenementum.

The facts relating to the plea in abatement are sufficiently set out in the opinion. The indictment contained several counts, in each of which the defendants were charged with the larceny of four mules, and some of the mules were alleged to be of the value of $300, and others of the value of $200. The jury returned a general verdict of guilty against plaintiff in error, and Schrseder, who was tried at the same time, was acquitted.

The action was upon a promissory note, and the defendant filed several pleas as stated in the report of this case at the last term, when judgment was reversed upon another ground. Ante, p. 12. After the case was remanded, the plaintiff replied to the several pleas, and at the August term of the probate court the defendant not appearing, judgment of default was entered against him.

The declaration contained only the common counts, and the trial was upon the general issue. Appellant moved to suppress the deposition of David S. Rockwell, the present appellee, and the plaintiff below, upon the ground that it was taken in the State of Connecticut by one Lee, who was not, at the time of taking the same, a justice of the peace, or other officer of the State of Connecticut, having authority to administer oaths.

The bill alleged that lot 12, in block 95, in the east division of Denver, was a portion of the lands entered by James Hall in trust for the use and benefit of the rightful occupants and bona fide owners of the improvements thereon, on the 6th day of May, 1865, pursuant to the act of congress of May 28, 1864, for the relief of the citizens of Denver; that in the year 1864, Mary J. McLaughlin received a deed for said lot from Henry J. Rogers, who claimed to have title…

Defendants in error in the court below declared upon a promissory note, dated August 18, 1860, payable two months after date, for the sum of $1,000, which they alleged was made by plaintiff in error and others, by the name and style of Atkinson, Madden & Co. Of the defendants, plaintiff in error only was served, and he pleaded non-assumpsit, and that the action did not accrue within six years.

At the head of the transcript were the words, “ Regular August Term of Probate Court, 1872 ; ” following this was the title of the cause, with the affidavit, the writ, and the declaration in the order in which they are here named. The jurat in the affidavit was dated August 5, 1872; the prefatory statement of the clerk showed that it was filed June 26, 1872, which was the date of the writ.

<p> Error to District Court, Las Animas County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p> Appeal from District Court, Arapahoe County. </p> <p>The bill was filed by Joseph B. Cofield, Daniel Witter, Richard E. Whitsitt, John Roache, Erastus F. Hallack, Charles Hallack and Amos Steck against Alfred E. Tilton, Charles E. Tilton, David J. Cook, Jndson H. Dudley and John Alexander ; it alleged that on the 28th of August, I860, Alfred and Charles E. Tilton sued out of the district court of Arapahoe county, an attachment against Judson H. Dudley and Thomas P. Ames, for the sum of $2,629.80, which writ was levied upon a large number of lots in the city of Denver, as the property of said Dudley; that said Tiltons filed their declaration in that cause in which they claimed damages in the sum of $3,000 ; that at the December term, A. D. 1865, of the district court, the Tiltons recovered judgment against Dudley for $2,591.44 and costs, which was afterward reversed in the supreme court of the territory ; that on the 9th of March, 1867, Dudley conveyed the lots levied upon to David H. Moffat, Jr., as security for the sum of $2,500, loaned by Moffat to him ; that Cofield, Witter, Whitsitt and Steck, purchased from Dudley all the lots so conveyed to Moffat and other lots and land, for the sum of $5,100 ; and that Moffat conveyed the same to them with the assent of Dudley, on the 23d of May, 1867. The several interests of the complainants in the lots described are set out at length in the bill, but these are not material to the questions discussed in the opinion. It was further alleged, that on the 12th of September, 1868, the Tiltons filed in the attachment suit against Dudley and Ames, an amended affidavit, claiming that the said Dudley and Ames were indebted to the said A. E. and C. E. Tilton, in the sum of $2,620.80 on an account and promissory note, and for goods, wares and merchandise sold and delivered, and for money loaned, laid out and expended for said Dudley and Ames; that said note was given for part of the purchase-price of said goods, wares and merchandise, dated 17th of September, 1864, payable to the said A. E. and C. E. Tilton four months after date, for the sum of $2,592.80, with interest at the rate of two per cent per month from date until paid ; that, on the same day, the plaintiffs in that suit filed an amended declaration claiming damages against the said Dudley and Ames upon said promissory note and upon the other counts in said declaration, in the sum of $7,000 ; copies of the original and amended pleadings were attached to the bill as exhibits ; that on the 5th of May, 1869, Dudley confessed judgment in the attachment suit for $5, 652.80 and $29.50 costs, upon which the court awarded a special execution and order of sale of the lots of said Dudley, levied upon by virtue of said writ of attachment; that the complainants bought the lots in good faith and without any knowledge of any claim or indebtedness on the part of the plaintiffs in the attachment suit against the said Dudley and Ames, other than appeared in the record and papers in said suit then pending; that the Tiltons had sued out execution upon the said judgment and were about to sell the lots described to satisfy the same; complainants asked that so much of the judgment in favor of A. E. and C. E. Tilton against said Dudley as provides for the issuing of a special execution and order of sale might be vacated and set aside, and the several lots released and discharged from the lien of said judgment : that the Tiltons and the said Cook as sheriff might be enjoined and restrained from selling under the said execution, etc., a portion of exhibit K, which is referred to in the opinion of the court, and which was admitted in evidence by the stipulation of the parties, was as follows :</p> <p>November 1, 1869.</p> <p>A. E. &. C. E. Tilton v. Judson H. Dudley, impleaded with Thomas P. Ames.</p> <p> Attachment. </p> <p>And now, on this day, come the said plaintiffs, Messrs. Charles and Elbert, their attorneys, and also comes the said J. Bright Smith by Amos Steck, Esq., his attorney, and comes the said Daniel Witter, Joseph B. Cofield and Richard E. Whitsitt, by Amos Steck, Esq., their attorney, and the said Amos Steck in his own proper person, and also comes the Said defendant Judson H. Dudley, by L. B. Prance, Esq., his attorney, and the court having heretofore, at the last term of said court, taken the motion of the said J. Bright Smith to strike the said plea of the said defendant confessing judgment in said suit, filed on the 5th day of May, A. D. 1869, by L. B. Prance, Esq., as the attorney of the said defendant, the power of attorney of the said defendant authorizing the said Prance to file said plea, from the files of said suit, also the said motion and petition of the said Witter, Cofield, Whitsitt and Steck, praying to be made parties, and for leave to contest the said plaintiffs’ claim in the suit under -advisement, and the court having duly considered said motion and petition, and being fully advised in the premises ; it is therefore considered by the court that said motion and petition be overruled and denied. And the court having also heretofore, to wit: on the 6th day of May, A. D. 1869, and of the May term of said court, A. D. 1869, taken under advisement the motion of the said plaintiffs for judgment on the said plea of the said defendant, confessing judgment in this suit, and the court having considered the same, and being fully advised in the premises; it is, therefore, considered by the court that the said plaintiffs do have and recover of the said defendant, Judson H. Dudley, the said sum of five thousand four hundred and seventy dollars and eighty cents ($5,470.80), together with interest on said sum from the date of filing said plea at the rate of 10 per centum per annum to the date of entering this judgment, amounting to the further sum of $272, making the full sum of five thousand six hundred and forty-two dollars and eighty cents ($5,642.80), as their damages so as aforesaid confessed by the said defendant in his said plea, and the interest thereon as aforesaid, and also their costs by them about this suit in this behalf laid, and expended, taxed at dollars, and that they have execution therefor, and that a special execution and order of sale for the sale of the property of the said defendant, Judson H. Dudley, attached on the writ of attachment issued herein, do issue. In their answer appellants admitted the commencement of the attachment suit, and the various proceedings therein down to the rendition of judgment; they denied that they had notice of any of the conveyances set forth in the bill. By stipulation, the original and amended affidavits and the other papers in the attachment suit were put in evidence. It was also admitted that the first judgment in the attachment suit for $2,591.44 was entered on the 27th day of January, 1866, and that judgment was reversed on the 10th of February, 1868; that, after the reversal of that judgment, the amendments referred to in the bill were made ill the attachment suit. In evidence it appeared that the deed by Dudley to Moffat was made by Chever under a power of attorney which was not under seal; it also appeared that the note mentioned in the amended affidavit and declaration was given for the consideration mentioned in the original affidavit, but such note was not referred to in the original affidavit; there was much more testimony which it is unnecessary to insert here. In a supplemental bill it was alleged that the lots were sold on the 13th of March, A. D. 1871, by the sheriff of Arapahoe county, under the execution and judgment aforesaid ; that the said Tiltons became the purchasers at such sale, and had received a deed therefor; these allegations were admitted by appellants. At the hearing the court set aside the sale so made, and so much of the judgment as relates to a sale of the lots for the satisfaction of the judgment. The court also decreed that the lots should be released and discharged from the lien of the judgment, and enjoined Tiltons from selling under the same. From this decree the Tiltons, Alfred and Charles, appealed.</p> <p>Mr. Justice Belford dissented.</p>

This was an action of ejectment brought by the United States Freehold Land and Emigration Company against John Gr. Tameling for a parcel of land lying within the Costilla estate. It was submitted upon an agreed statement of facts.

Ejectment by John H. Hense and Charles C. Welsh against Dennis Sullivan, Theodore E. Wheeler and the Central Gold Mining Company, to recover claim No. 3 west of discovery claim on the Borton lode in Illinois Central District, being in length 100 feet and in width 50 feet. The plaintiffs claimed the right to occupy and possess the premises under the local laws of Illinois Central Mining District, by virtue of a purchase made by them.

The declaration contained the common counts for work and labor done, for goods sold and delivered, for money loaned, etc. The defendant pleaded non-assumpsit, and a set-off.

The petition was filed on the 20th day of October, 1871, by the Tucker Lumber Company against Elizabeth Purmort.

This was an action of unlawful detainer in the district court of Gilpin county. The plaintiff alleged that Belle Cable, on the 18th of October, 1870, recovered in a justice’s court a judgment against James R. Grant for the sum of $170 and costs. That execution was issued and returned, no property found.

Plaiettiee ikt EBBOB, who was also plaintiff in the court below, alleged that the defendants took and detained certain goods of the plaintiff of the value of $396. To this the defendants pleaded: 1. That they did not take or detain the said goods. 2. That the property in the said goods was at the time when, etc., in them the said defendants, etc. 3. That the property in the said goods was at the time when, etc., in Clinton M. Tyler, etc. 4.

At the October term, A. D. 1872, of the district court, appellant, with William Halliday as surety, entered into recognizance in the sum of $2,500, conditioned for the appearance of appellant from day to day during that term, to answer to an indictment then pending against him for keeping a gambling establishment, and for exhibiting gambling devices.

Case by plaintiff in error against defendant in error, to recover for injuries received by the former while engaged in the service of the latter as a brakeman on one of its trains.

Assumpsit by Robert W. Truitt and Thomas B. Watson against the appellant, Lorenzo M. Freas. The first count of the declaration was upon a draft for $1,885.26, drawn by A. Bechtel, of Georgetown, Colorado, upon John Wiest, as treasurer of a mining company at Philadelphia, to the order of appellant, and by him indorsed to appellees. The common counts for goods sold and delivered, for work and materials, for money lent, etc., were also in the declaration.

The condition of the bond on which the action was brought was as follows: “Whereas, the above bounden John G. Lilley, plaintiff, has on this day sued out a writ of replevin out of the district court of Colorado Territory, in and for the county of Arapahoe, against one Alonzo Booth, to recover the possession of one gray horse branded with the letters U. S. on the left shoulder, and I. C. on the left hip, about nine years old, and one gray horse with back a little swayed,…

<p>Error to District Court, Arapahoe County.</p> <p>This cause was tried before a jury in tke court below. The material facts are contained in the opinion.</p>

This was an action of assumpsit, upon the following promissory note: Canon City, C. T., January 18, 1870. $900.00 Sixty days after date, for value received, we or either of its promise to pay to S. ET. Hoyt or bearer the sum of nine hundred dollars. U. S. Rev. Stamp, 50c. canceled. AUGUSTUS MACOM, EDWARD CROUCH.

That the defendant acted as agent for another in the keeping of such room is not a defense.

This is an action of replevin, in which, the appellees filed their declaration, in one count only, claiming that the appellants unjustly detained two hundred and forty-six sacks of flour, valued at $2,460, the goods and chattels of the appellees, to the damage of the appellees $1,000. To which declaration appellants pleaded: First, non detinet; second, property in appellants; third, property in one Matzdorf.

<p> Appeal from District Court, Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

The declaration was in replevin to recover eight mules, alleged to be of the value of $600. The defendant, Pedee, filed several pleas, claiming the property as administratrix of Andrew Pedee, deceased, and otherwise. The evidence, which was quite lengthy, is sufficiently stated in the opinion, except as to the following receipt, which was put in evidence by defendant: “ Office of F. E. Everett, Banker, Gulden City, Colorado, February 21,1873.

The recognizance was of Charles Jennings as principal, and Edward Chase (plaintilf in error) as surety, dated June 21,1872, taken by two justices, and returned into the district court, August 31, 1872.

The declaration was in case by Jas. Clelíand and Chas. M. Stebbins (appellees), as partners, against John P. Sellar and Edward F. Kellog (appellants), and Manuel Otero, Charles E. Morehead, Eugene B. Allen, David W. Powers, James B. Powers, David B. Powers, Henry L. Newman and Percival Gr. Lowe, as partners.

The issue joined in the court below was tried at the April term, 1874, and time was given to tender a bill of exceptions. At the expiration, of the time allowed for this purpose, and for some time previous, the judge of the court was in Park, holding the term of the district court of that county.

Ojst the 1st day of April, A. D. 1874, and at the February term in that year, Francis M. Piper preferred charges against Samuel E. Browne, Esq., an attorney of this court, for a failure to pay over to him the sum of $400, collected by said Browne as the attorney of said Piper, from the Kansas Pacific Railway Company. Other charges were embraced in the petition which it is unnecessary to notice.

The cause was tried at the April term, 1874, of the district court, and a motion for new trial interposed by appellant. This motion was not heard until the September term in that year, and was then denied, and appellant excepted to the ruling of the court. The bill of exceptions embraced the evidence, the charge of the court to the jury, and certain prayers for instructions which were denied, all of which appellee now moved to strike out.

This case was twice before in this court, and is reported in 1 Col. 533, and ante, p. 248.

This was an action of debt npon the oficial bond of Walter B. Jenness, city marshal of the appellee, which bond was executed by Jenness as principal, and Woodbury, Cowenhoven and Myers as sureties, and bound them “ unto the plaintiff, by the name and description of the mayor and city council of the city of Black Hawk, in the county of Grilpin, Colorado Territory, for the use of the people of the city of Black Hawk aforesaid,” in the penal sum of $5,000, for the year…

The charter referred to ia the opinion maybe found in the laws of the third session (1864), at page 244, et seq. The resolution of May 3,1866, to which the opinion refers, is as follows, viz.: “ On motion of Alderman Bedell, the report of the finance committee in regard to police regulations was adopted. On motion, above report w;as amended so as to affect only the city marshal, who was allowed fifty dollars per month, said salary to commence May 1, 1866.”

The action was replevin to recover possession of a wagon,- and plaintiff in error, who was defendant in the court below, pleaded, 1, non detinet; and 2, substantially as follows : That at the time when, etc., defendant was secretary of School District No. Three (3), in Arapahoe county, Colorado, that a special school meeting was regularly called to meet October 21, 1871, for purpose of levying special school tax ; that said meeting was held and a special tax of ten mills on…

Aeter verdict for plaintiff in the court below, judgment was arrested. Defendant moved to quash the writ, for that no final judgment was ever given.

The guaranty upon which the action was founded is quoted in the opinion, and the issues are there stated. The pleas were not under oath. After putting in the note and guaranty, plaintiff (appellee) rested, and defendant (appellant) moved for judgment of nonsuit, which was denied. Appellant then testified that the guaranty was given by him some time after the note was made, and that it was without consideration.

The declaration was upon a promissory note, and the judgment was by default. Upon the return to the summons, which is given in the syllabus, it was contended that service of process was not had ten days before the term. The court convened on the first Monday of March, which was the second day of that month, and judgment was entered on the third day of that month. It was also contended that the act of 1874 (10 Sess. 218) gave no authority for holding a term at that time.

This cause having been continued at the last term to enable appellee to move the district court for leave to amend the record of the bill of exceptions, Mr. Butler now, at this term, filed a transcript of such amendment made at the June term, A. I). 1874, of the district court.

Defendant in error was the publisher and proprietor of the Bocky Mountain News, a newspaper published in Denver. The publication of which, defendant in error complained, is sufficiently set out in the opinion. In concluding the argument for plaintiff in error, counsel used the following language: 1. We have said that the publication was directed against the jury and its verdict. 2. A verdict is the unanimous decision of a jury. 3. A jury is a body of men. 4.

One count of the declaration in this action was for the use and occupation of certain premises held by the appellant from the appellee. The evidence showed that the appellant owed the appellee, on account of the use, etc., of the premises, for one month, $600. There was illegal evidence admitted to the jury showing a further indebtedness to the appellee. A verdict for $1,400 for the appellee (plaintiff) was returned by the jury, October 23,1874.

Shit was brought before a justice of the peace, and thence appealed to the probate court.

Error, to Probate Court, Arapahoe County. Thu action was founded upon a promissory note. The pleas referred to in the opinion were first filed June 9,1874. On the 15th day of that month they were stricken from the files on motion of plaintiffs; and, on motion of defendant, leave was granted him to file an affidavit of merits, and to refile the same pleas.

Wi. A. Whiting and Joel P. Whitney alleged in their declaration that John Tierney,, on the 22d day of April, 1866, executed to them his certain deed by which he conveyed to them a building lot in Central City, and covenanted that he would warrant and forever defend the title to the same to the said Whiting and Whitney, and their heirs and assigns forever, against the claims of all persons except the government of the United States; that they took possession of the lot…

<p>Statute — conferring jurisdiction by appeal — effect of repeal. The act of 1873 (9 Sess. 105), so far as it applies to tlie prohate court of Arapahoe county, was repealed by the act of 1874 (10 Sess. 317).</p> <p>And upon the passage of the act of 1874, an appeal pending in the district court of Arapahoe county, from a judgment of the probate court of the same county, was properly dismissed.</p>

This was an action in assumpsit, against the appellant, to recover back $2,628.86 paid under protest by the appellees, on the 1st of July, 1874, as taxes for the year 1873.

It was alleged in the declaration that the Grolden City and Arapahoe Ditch Company commenced certain proceedings in the district court of Jefferson county, to condemn the right of way for its ditch through certain lands therein described, belonging to defendant in error and others; that, in the course of such proceedings, the said ditch company was required to give bond in the sum of $10,000 to defendant in error, and the others, conditioned for the payment of damages which…

The issue is stated in tbe opinion. At the trial plaintiff (appellee) was first called as a witness and was proceeding to state a contract made October 7,1870, substantially as in the writing of that date, which, is set out in the opinion, when the defendant objected that this was within the 12th section of the statute of frauds, and the court sustained the objection, but allowed the plaintiff to prove service performed according to the agreement under the common count,…

The second additional plea mentioned in the opinion is thus: And the said defendant, Robert W. Mead, for a further plea in this behalf, by leave of the court here for this purpose had and obtained, says that he ought not to be charged with the said debt by virtue of the said writing obligatory, because he says that after the making of the said supposed writing obligatory, to wit: on the 22d day of July, A. D. 1872, and while the said suit in replevin in which said supposed…

The bill was exhibited against Gasper S. Francis, George McFarland, George Way, Erskine McClellan and Chas. R. Fish. If the statement of the case in the opinion of the court is regarded as insufficient, the allegations of the bill will be found fully set forth in the dissenting opinion. The bill was filed September 8, 1873, and an injunction was issued restraining Way from conveying to Francis.

The declaration is sufficiently stated in the opinion. Th e trial was upon the general issue, and plaintiffs obtained a verdict for $3,000 damages. The city moved in arrest of judgment, which was allowed, and the plaintiffs sued out this writ of error.

<p>Error to Probate Court, Arapahoe County.</p> <p>The facts are stated in the opinion.</p>

The bill was filed by the Denver City Railway Company against the Denver and Swansea Railway Company, Miers Fisher, Charles Rnter, and John G. Perrenond. It alleged that complainant was a corporation under an act of assembly approved January 10, 1867 (6 Sess. 105), which was set out in the bill. The provisions of the act are given in the opinion.

Mawsel H. Root brought ejectment against Lester and Eugene Drake, to recover possession of a certain lot of ground, of about two acres, together with a dwelling-house and stable.

The petitioners (plaintiffs in error) alleged that they sold certain nails, locks, and other materials, to one Joseph Wood, to be used, and which were used in the erection and construction of a building in the city of Denver, which was owned by the defendant; that Wood contracted with defendant to erect said building, and that the defendant knew that the materials were so used.

Declaeation in trover to recover the value of 45 packages or barrels of bourbon whisky, alleged to be worth S3,500. Plea: Not guilty. At the trial the plaintiff gave evidence tending to prove that he stored a quantity of whisky in a building in Denver, and left it in charge of one Minch, with instructions to unbung the barrels daily, and to move them to and fro for the purpose of improving them.

Suit in assumpsit; attached to the declaration as a part of the account sued on were 14 (so-called) city warrants, of which only two were specially declared on. With others, there was filed a plea which averred that said 14 warrants constituted the whole grounds of the plaintiff’s action, and denied their execution ; which plea was verified by the affidavit of the mayor of said city.

The affidavit on which the proceeding was founded was as follows: Territory of Colorado, County of Gilpin. ss: B. T. Wells, being first duly sworn, upon oath, says, that on the morning of the 8th day of January, A. D. 1870, the crime of burglary was attempted to be committed at the Smith & Parmelee Quartz Mill, in the county of Gilpin and Territory aforesaid, by breaking into the mill of said company, and attempting to break into the amalgam room of said company, and by…

The bill alleges that Wm. Buck, February 15, 1868, executed a promissory note to Frantz A. Brocker, since deceased, payable June 1, 1868, for $300, and secured it by mortgage upon certain premises in Douglass county, which are described in the bill.

This is an action of assumpsit. In the declaration the plaintiff alleges that on February 1, 1874, defendant was indebted to Mm in the sum of $3,500 for interest upon, and for the forbearance and use of large sums of money, before then due from the defendant to the plaintiff, for long spaces of time before then elapsed, forborne by plaintiff to the defendant at the request of the latter, and for so much money before that time lent by the plaintiff to the defendant, and for…

Assumpsit brought by Francis, the plaintiff below, against Hart & Schlessinger, a corporation, upon a due bill in form as follows: Mountain City, Colorado, September 22, 1870. $429.20. Dire Joseph Francis on work done for us......... $286 50 Due Joseph Francis on work done for Hart, assumed by us.................................. 143 70 $429 20 of which the amount of Hart’s account is to be paid December 30th. Hart & Schlessinger, per T. S. Schlessinger, President.