Volume 2 — Colorado Law Reporter

<p>1. Statute Construed—Citizenship of Corporation—Jurisdiction. Under a statute of Nebraska, declaring that any railroad company organized under the laws of Kansas, Missouri or Iowa, may extend its line of railroad into Nebraska, and file its articles of incorporation with the Secretary of State, and shall thereupon become a legal corporation of that State, and entitled to all the rights, privileges and franchises of railroad companies organized under and pursuant to the laws of Nebraska: Held, that a railroad company organized under the law of Iowa, having extended its line into Nebraska, and filed its articles of incorporation with the Secretary of State of that State, became, for jurisdictional purposes, a citizen of Nebraska as to all transactions of the company in that State.</p> <p>2. Samé—Same—Citizenship. All questions of jurisdiction depending upon the citizenship of the parties to the suit, must be determined by their citizenship at the time of the commencement of the suit.</p> <p>3. Corporations—How Created. It is competent for the State, by its legislation, to determine the mode of creating corporations within its limits, and it may, therefore, declare that a foreign corporation shall become a corporation of the State by building a railroad therein and filing a copy of its articles of incorporation with the Secretary of State.</p> <p>4. Foreign Corporation—Consent to be Sued. A corporation created by one State, may consent to be sued in another, in consideration of its being permitted by law to exercise therein its corporate powers and privileges. But this doctrine does not apply to a foreign railroad corporation extending its line into Nebraska, under the statute above named.</p> <p>5. Same—Agent. Where, under the statute above named, it appeared that the railroad through both States was operated by one management, held, that the officers and agents of said corporation in Nebraska, were officers and agents of the Nebraska corporation in respect to all its transactions within that State.</p> <p>6. Power of State over Corporation. It is the right of each State in which a corporation transacts business, to require it to become a corporation of the State under and by virtue of its own laws.</p> <p>7. Plea to Jurisdiction—Answer. Where defendant filed plea to jurisdiction, which was taken under advisement by the Court, and at the same time left with the clerk an answer endorsed, “to be filed subject to the plea to the jurisdiction; ” held, that the answer was not filed in such a sense as to be a waiver of the plea.</p>

<p>Adverse—The Filing of, Suspends Right to Issue Patent. The tiling of a protest and adverse in the proper land office, against the application for a patent, suspends the right to issue patent, which, if issued pending the litigation upon such adverse, is void.</p> <p>After adverse filed, the officers of the Land Office of the United States have no authority to take further action until shown by affirmative proof that no suit has been instituted to support the adverse.</p> <p>Same—Failure to File is a Waiver of Right. If a senior locator permit another to locate upon the same ground and make application for patent, and file no adverse or protest, and the patent be issued to such junior locator, his title will hold, the failure of the first locator to file adverse being a waiver of his priority.</p>

The complainant, an express company, has been engaged for many years in carrying on an express business over the respondent’s railroad. No written contract was ever entered into between the parties; but the business was carried on without objection and upon terms mutually satisfactory, until some time in the year 1880, when the railroad company asserted its own right to transact all the express business upon its line, and attempted to eject the complainant therefrom.

<p>1. Pleading—Complaint on Behalf of Others—Redundant Matter—Practice. A plaintiff bringing suit on behalf of others not named, as well as on his own behalf, and not alleging facts necessary to entitle such others to participate in the action, but alleging sufficient facts to constitute a cause of action as between himself and the defendants named in the complaint: Held, that the allegations as to parties not entitled to participate in the action were redundant, and might be stricken out on motion of defendants; and that the insufficiency of the allegations would be-good ground of objection to any participation in the action by the persons not named in the pleadings.</p> <p>2. Action by One for the Benefit of Others. Where the interests of parties are several, there being no privity of estate between them, it is not a proper case in which one may sue or defend for the benefit of all, within Section 382 of the Code of Civil Procedure. A party suing on behalf of others must allege facts showing that “the question is one of common or general interest of many persons,” or that “the parties are numerous, and it is impracticable to bring them all before the Court.”</p> <p>3. Intervention—Judgment. It is too late for parties to intervene after judgment is entered in favor of the actual plaintiff against the defendants. Parties who might have united with plaintiff in bringing the action, but did not, can only come in as intervenors before the trial.</p> <p>4. Equity—Distribution of Property Recovered by one Party. Where the recovery is of something in which persons other than plaintiff are interested with him, a Court of equity has the power to provide for a distribution of the property recovered among those entitled to share in it.</p> <p>5. Finding—Contradictory Findings. A finding “ that all the allegations of the complaint are true, and all the allegations of the answer untrue,” is sufficient. That some of the allegations of the complaint are repeated in the answer does not create a conflict in the findings as found above, because the findings must be limited to the conflicting allegations of the pleadings.</p> <p>6. Patent—Mexican Grant. Claimants under a Mexican grant cannot be permitted, while the patent stands, to aver that the claim comprised other or different lands from those mentioned in the patent issued upon such grant.</p> <p>7. Motion to Dismiss Appeal—Stipulation. A stipulation that an appeal “was duly perfected” is an answer to a motion to dismiss an appeal on the ground that the notice of appeal had not been filed within time. A stipulation is conclusive in the appellate Court, and cannot be avoided on the ground that it was entered into under a mistake of fact.</p>

In Equity.) The Mastin Bank was a banking corporation at Kansas City, Missouri, and, at various dates between the 27th day of July and the 2nd day of August, 1878, made and delivered to the complainants in these cases its drafts or checks on the Metropolitan National Bank of New York. These instruments were in the following form, differing from each other only in dates, name of payee, and amount: “$ 1,979.50- State of Missouri.

<p>Mining Claim—Possession—Location—Ejectment. Though plaintiffs, who sue in ejectment for the possession of a mining claim, may not be able to show a valid location according to the mining laws in force at the time, yet they may recover, if they can show that they were in possession, holding and claiming under color of title, at the time the defendant entered. And such recovery will extend to the entire claim, and not merely to the actual area occupied.</p> <p>Purchaser and Locator—Distinction between. The purchaser of a mining claim may occupy a position different from the locator—not as against the general Government, against which nothing can avail but strict compliance with the law regulating locations. But, against other citizens seeking to locate the same ground, it may well be said that a purchaser in possession under a conveyance regular in form is in by color of title, which in time, under the statute of limitations, will ripen into a perfect right. And it seems reasonable to allow him to maintain his possession against one who seeks only to initiate a new claim to the same thing.</p> <p>Estate in Mining Claim. The circumstance that a miner’s estate in public lands is subject to conditions on failure of which it will be defeated, is not controlling. In general, we apply to mines in the public lands, the rules applicable to real property, as that it may be conveyed by deed, is subject to sale on execution, descends to the heir, and not to the administrator, etc.</p> <p>Deed—Boundaries in. Though a deed does not describe the property conveyed by metes and bounds, yet, if it makes reference to a location certificate of record which contains a full and definite description of the claims, this is the same as if the description had been given at length in the deed. It matters not that the location certificate be not shown to be regular in all respects, if it gives a correct description of the property.</p>

<p>Boundaries—Equity will consider, when. Equity does not usually interfere to settle boundaries; but, when officers of different counties claim jurisdiction over the same territory, they may be compelled by a taxpayer to interplead, in order that the question of jurisdiction may be settled and the party in error enjoined.</p> <p>Judicial Notice—Construction of Statutes—Courses Govern, when. The Court will take judicial notice of certain geographical facts, as great mountains, etc.; all words used in a statute must be deemed to have some meaning, and be given their proper force; when calls and natural monuments fail to identify a boundary line, the courses must govern.</p> <p>The North Park is within Grand county.</p>

This was an action of replevin brought by the plaintiff against the defendants to recover possession of certain horses which the defendants claimed to have taken up and sold under the estray law of this State.

<p>Criminal Negligence. Negligence to be criminal must be so great as to indicate, on the part of the person guilty of it, an indifference as to the consequences which might result therefrom. To justify conviction, the jury must be satisfied from the proof, not only of such negligence on the part of the accused, but that it was the direct and immediate cause of the disaster.</p> <p>Testimony of Experts—Jury to Judge of the Evidence. The jury are not absolutely bound by the testimony of experts, but are the judges, both of the evidence and weight thereof—considering the opinion of experts to aid them in such determination.</p>

<p>Equity—Jurisdiction to Relieve against Taxation. Where taxes are a personal charge, courts of equity are loth to interfere for the purpose of restraining their collection; but when irreparable injury is threatened, where the element of fraud exists, or where there is some other circumstances attending the injury distinguishing it from a mere trespass, relief by injunction may be invoked.</p> <p>Pleading—Denial on Information. Where the alleged fact is presumptively within the knowledge of the defendant, he cannot be permitted to answer on information and belief, but must answer in the form positive.</p> <p>Taxation—Net Proceeds of Mine—Statutory Provision Inadequate. There can be no doubt that the net proceeds of mines in this State are subject to taxation. But in order to properly assess them, statutory provision is required. The constitutional provision is not self-executing. The Legislature has failed to provide adequate method for the assessment and collection of taxes on the net proceeds of mines.</p>

Ejectment for a mining claim in the county of Dolores, called by plaintiff, Hawk lode, and by defendant, Johnny Bull lode. Plaintiff alleged a location begun in June;, 1880, by one Thomas Carroll, who was employed by plaintiff to search for lodes, under an agreement to give plaintiff four-fifths interest in all locations made by him, Carroll retaining one-fifth for himself.

<p> Ibid. </p> <p>(25 Kan.)</p> <p> Evidence—‘Telegraphic Message—Secondary Evidence. </p>

<p> Ibid. </p> <p>(25 Kan.)</p> <p> Contract-Physician's Fees—Service to Visitor—Promise to pay. </p>

<p>Jurisdiction—Chancery—Trust Estate—Stay of Execution.</p>

<p>(25 Kan.)</p> <p> Contract—Infancy—Disaffirmance. </p>

in Equity In September, 1879, one H. H. Harris, engaged in the business of operating a grain elevator at Litchfield, Minn., a station on the St. Paul, Minneapolis & Manitoba Railway, and while so… Held: that in order to settle all the conflicting claims against the wheat it was necessary to bring a bill in equity. (Sec. I, McCrary, 434.) This bill was accordingly filed.

These actions are brought to recover the amount of coupons which were attached to bonds issued by the towns of Elgin and Plainview in this district, the plaintiffs being owners of the bonds and coupons, and also to recover the amount of coupons owned by them taken from bonds held by other parties, to whom the plaintiffs had sold them.

<p>Prospecting for Mines—“Grub Stake”—Arrangement Must Exist at the Time of Discovery, to Give Joint Interest. The partnership association, or association between parties who may be engaged in prosecuting explorations in the public lands for mines, must exist at the time of the lbcation and discovery in order to give the parties, other than the discoverer, an interest in the property.</p> <p>Same—Abandonment of Contract. A made an agreement with B, by which the latter was to take care of the former foi the winter, and furnish outfit in the spring, when A should go prospecting on their joint account. B,. at least partially, complied with the agreement, by keeping A for the winter, and furnishing some money in the spring. But before making any discovery, or search for mines under this arrangement, A made a new arrangement with R, by which the latter furnished the “outfit,” and the former did the prospecting; under this last arrangement the mines were discovered: Held, that the making of the arrangement with R was an abandonment of the agreement with B, and that the latter cannot share in the interests of A in the property discovered and located under the new arrangement.</p>

This is a bill in equity, in which the complainant prays partition of certain placer mining property in which the complainant has, as he alleges, an undivided interest. It appears, from the allegations of the bill and the proof, that the title to the property in controversy is in the United States, the parties to this suit having jointly a possessory claim or interest, with the right to take ore therefrom, but no other title.

<p>A Life Policy, as between the assured and the insurer, is strictly and only a contract, and is subject to the general rules which govern iji the interpretation oí other contracts, but with respect to the beneficiaries, it is held to be a testamentary provision rather than a contract.</p> <p>Surviving Beneficiaries. The share of one of the beneficiaries upon his death, will pass to the surviving beneficiaries and their heirs, and does not result to the assured, where the policy is renewed by the payment of the annual premium, and no contrary intention appears. “A policy of insurance on the life of any person expressed to be for the use of any married woman, whether procured by herself, her husband, or any other person, shall inure to her separate use and benefit and that of her children, independently of her husband or his creditors, or the person effecting the same, or his creditors” Sec. 30, Act of March 12, 1870.</p> <p>Assignment of Policy. The assured had no right to assign the benefit of the policy in this case, where the policy was for the benefit of his wife and children, so as to defeat the heir at law of one of the beneficiaries who died before the assured.</p>

<p>x. Railroad Crossings. Under the constitution and laws of Colorado, one railroad may cross another at grade, whenever it is necessary, at any suitable place, so as not to obstruct the original track.</p> <p>2. Same. The necessity for such crossing depends upon the alignment of the road, and the location of its terminal points, and the company having discretion to make such alignment and location thus determines when and where such crossing is necessary, and this discretion cannot be interfered with, unless it appears from facts and circumstances that the proposed place of crossing is unsuitable, or will obstruct the original track.</p> <p>3. A Court of Equity will interfere by injunction, not only to prevent a wanton or malicious crossing, but to prevent a crossing which, considering the circumstances of the particular case, would cause unreasonable obstruction.</p> <p>So, too, the Court will prevent a crossing where the conformation of the ground is such as to render frequent collisions liable to occur. But in a level country, with a fair view, removed from unreasonable and avoidable obstructions, one company may, when necessary, cross the track of another at grade, at the point of its own selection,</p> <p>4. The State Grants superior privileges to corporations, not for their own advantage alone, but for the mutual benefit of the public.</p> <p>The power to acquire right of way is an attribute of sovereignty, in the granting of which to corporations, the State does not entirely divest itself of authority, but retains sufficient control to prevent injurious results to its own citizens, whether natural persons or other corporations.</p>

<p>Levy Upon and Sale of Incumbered Property—Cloud upon Title. A judgment creditor who, having caused execution to be levied and sale made of the lands of his debtor, proceeds to contest a prior mortgage thereof as fraudulent and without consideration, of which mortgage he had actual notice at the time of the levy, but caused no notification to be made at the sale of his intent to contest the mortgage, will be held to have purchased subject to it.</p>

<p>Ruling on demurrer.</p>

<p> (Decision by the Commissioner of the United States Land Office.) </p> <p>Mining Claim—Protest—Entry Pending—will be Cancelled. The law requires, that when an adverse claim is filed during the period of publication, and suit is brought in a Court of competent jurisdiction within thirty days thereafter, all proceedings for patent shall be stayed until the controversy shall have been decided or the adverse claim waived. An entry in such case is illegal, and must be cancelled.</p>

<p>1. Sunday Law—Constitution. Sec. 300 of the Penal Code: “Every person who keeps open on Sunday, any store, workshop, bar, saloon, banking-house, or other place of business for the purpose of transacting business therein, is punishable,” etc., is nor in conflict with the constitutional provision: “The Iree exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be guaranteed in this State.” Const., Art. 1, Sec. 4.</p> <p>2. Special Laws Prior to Adoption of Constitution of 1879. The provisions of Art. IV, Sec. 25, of the Constitution of 1879. which declares : “The Legislature shall not pass local or special laws in any of the following cases: First—Regulating the jurisdiction and duties of justices of the peace, etc. Second—For the punishment of crimes and misdemeanors,” apply to future legislation, and do not affect special and local laws in force at the time of the adoption of the Constitution,</p> <p>3. Laws of a General Nature Shall Have a Uniform Operation —Cases Followed. Brooks v. Hyde, 37 Cal., 366, and Ex parte Smith and Keating, 38 Id., 702, as to the construction of the constitutional provision : “All laws of a general nature shall have uniform operation,” followed.</p>

<p>Appeal by the Commonwealth. In a criminal prosecution judgment of acquittal may be reviewed on the appeal of the Commonwealth, for the purpose of securing a uniform and correct administration of justice, although the judgment cannot be reversed.</p> <p>House Breaking. As a general rule, where there is internal communication between the apartment broken into, and the room into which the accused is charged to have feloniously entered, such entry completes the offense—the case being analogous t6 burglary under the common law.</p>

<p>1. Attorney and Client—Purchase by the Former from the Latter. Quere: Can an attorney at law, under any circumstances, purchase pendente lite from his client the subject matter of a litigation in which he is employed and acting ?</p> <p>2. Same—Same. Equity will not uphold such sale, even upon a showing of good faith, where it appears that the attorney, while negotiating for the purchase of the property, was, at the same time, and as part of the negotiation, advising his client as the probable outcome of the litigation concerning it.</p> <p>3. Same—Same—Burden. To sustain a sale from client to attorney, the burden is upon the latter, and he must show that he has done as much to protect the client’s interests as he would have done in the case of his client dealing with a stranger.</p> <p>4. Same—Same—Attorney Must Make Full Disclosure. An attorney, before consummating a purchase from his client, is bound to disclose to the latter the names of all persons interested with him in the purchase, especially when some of the persons so interested are partners of the client in the subject matter of the litigation.</p> <p>5. Same—Same—-Parties Interested with the Attorney in Such Purchase. Parties interested with the attorney in such purchase, and who afterwards take conveyances from him, cannot be regarded as innocent purchasers; but such persons stand in the shoes of the attorney, so far as the rights of his client are concerned. If the sale is void as to the attorney, it is also void as to those interested with him as such partners.</p>

<p> Ruling on Demurrer to Complaint.) </p>

<p>Attachment—Garnishee — Statutory Bond. Sections hi, 112., Colorado Code, do not provide for the discharge of garnishees upon the execution by defendant, in attachment of the bond mentioned therein, but only for the release of property taken under attachment and the proceeds of the sale thereof in the hands of the officer. A bond executed in accordance with the provisions of said sections to secure the discharge of a fund in the hands of a garnishee, would not be valid as a statutory undertaking.</p> <p>But if the garnishee pay to the officer money due from him to defendan t as provided in the statute, the defendant may have that money released to him by giving a forthcoming bond, pursuant to said sections.</p>

—Ruling on Motion for New Trial.) Tort for injuries received in defendant’s service. In May last defendant was engaged in smelting ores at Leadville, and plaintiff was employed to assist at one of its furnaces as “inside helper.” There were several furnaces in the works, the one at which plaintiff served being known as No. 4. This furnace had two taps for drawing off slag, differing in that respect from the others, which had but one.

Ruling on Motion for New Trial.) In April last, at Zanesville, Ohio, plaintiff made a contract with the Pittsburg, Cincinnati and St. Louis Railway Company to convey for him a car-load of household goods from Zanesville to Denver, for the sum of $185, then paid to said company. The car was brought to St. Louis by that company, and from St. Louis to Kansas City by the Wabash, St. Louis and Pacific Railway Company, and from Kansas City to Denver by defendant.

<p>Railway Company—Liability on Tickets sold by Agents over other Lines, whether in Hands of the Purchaser or his Assignee. Certain passenger tickets were issued at St. Louis and other points east of Kansas City, by the agents of certain railway companies, providing for passage for the owner over the road issuing them to Kansas City, thence by the Kansas Pacific Railway to Denver, and thence over the Denver and Rio Grande Railway to Trinidad and other points—coupons being attached for the passage over the several roads. Certain of these tickets with the Denver and Rio Grande coupons attached, were purchased by the plaintiff from the holders. The Denver and Rio Grande Company declining to recognize them, plaintiff demanded of defendant the value thereof, which being refused, he brought suit. Held: That defendant, having, by taking up the coupons applying to the Rio Grande lines, and by other acts, recognized the authority of the seller of the ticket, is bound for the value of the Denver and Rio Grande coupons. And that the ticket being issued to the “holder,” the plaintiff may maintain action therefor, though he purchased them from the person to whom originally sold.</p> <p>2. Same—Assignment. A railroad company may contract to carry a passenger any distance, provided its own line be part of the journey. It is immaterial' what part of the line is owned by the contracting company, the principle being, that, in promoting its own business, a railroad company may make any contract which it may have capacity to perform in part, and the company making such contract will be held liable thereon. Such contract is assignable under the statute, and delivery of ticket is evidence of assignment thereof.</p>

<p>1. Surety—How Far Bound by the Judgment against his Principal in a Suit to which He Is Not a Party. A party sued as surety upon a bond given to secure the faithful performance of a contract by the principal, to construct a school-house within a specified time, upon certain terms and conditions, is not bound by a judgment against his principal, in a suit to which he is not a party, establishing certain claims as mechanics’ liens upon such school-house.</p> <p>2. Same—Mechanic’s Lien—Public School Building. It having been settled by repeated decisions of the Supreme Court of Missouri, that there can be no such thing as a mechanic’s lien upon a public school building, a surety upon such a bond as the one above named may, in defending a suit upon the same, deny the validity of a judgment establishing such a lien, so far as he is concerned, such a judgment having been rendered in a suit to which he was not a party.</p> <p>3. Effect of Removal of Part of Cause from State Court—Res Adjudicata. Where suit was brought in a State Court against principal and surety upon the bond above mentioned and removed as to the surety into the Circuit Court of the United States under the act of Congress of 1866, providing for the removal of part of a cause. Held: That from the time the order of removal was made, the surety passed from the jurisdiction of the State Court and had no right to appear there any further, and is, therefore, not bound by the judgment there against the principal. A party is bound by an adjudication only where he is so far within the jurisdiction of the Court, as to be at liberty to participate in the management and control of the litigation.</p> <p>4. Surety—Rights of, in Settlement with the Obligee in the Bond. A surety is not bound by a settlement between his principal and the obligee of the bond, to which he has not assented; but has a right to a settlement of his liability precisely as if he had been present at such settlement, and had availed himself of all his rights and of all the defenses which the principal could have availed himself of.</p>

<p>1. Application of Payment—Equitable Rule. Where three parties each held a judgment which was a lien upon the real estate of the same judgment debtor, entitled to share pro rata in the proceeds of the sale of said real estate, and where, by agreement between them, one of the three agreed to release his lien in consideration of the sum of $450, which was paid to him by the other two: Tteld, that this was an enforcement of the judgment lien so released, to the extent of the sum paid for said release, to wit., $450, and that said judgment should be credited with that sum; and that an agreement between the three lien holders, that said sum should be credited upon a junior judgment against the same judgment debtor, was void.</p> <p>2. Same—Bankruptcy—Right of Assignee in Equity to Insist upon such Application. Where a creditor of a bankrupt has a lien upon the property of a third party as part of his security for said judgment against the bankrupt, he cannot release that lien for a consideration, without crediting such consideration on the claim against the bankrupt estate; and the fact that such a creditor had a second unsecured claim against such third party, does not alter the case.</p> <p>3. Judgment in Scire Facias—Effect of, upon Parties to Original Suit. The main purpose of proceedings in scire facias under the statute of Missouri, is to revive the judgment and thereby preserve, the lien thereof upon real estate; and where a bankrupt was a party to the original judgment, his assignee in bankruptcy is not estopped by a judgment in scire facias, to insist that the judgment revived had been in part satisfied, especially in a case where he had no knowledge or notice of such partial satisfaction at the time that the judgment was revived, and could not by reasonable diligence have ascertained that fact.</p>

This is a bill to foreclose a mortgage executed by respondent to Ambrose L. Van Dusen, who has since deceased. The property mortgaged (160 acres of land), was, at the time of the execution of the mortgage, and for a long time prior thereto, occupied as a homestead by respondent and his minor children. The wife of respondent died in May, 1876, seized in fee of the premises, and being then, with her husband and children, in possession and occupying the same as a homestead.

<p>Practice in Equity Causes—Bill of Exceptions. The Civil Code abolishes all distinction between actions at law and proceedings in chancery, and substitute for both a Code procedure. Testimony taken by a referee is matter dehors the record, and can only be preserved and brought before the Supreme Court by bill of exceptions. (Sec. 23, Code Amendments, 1879—King’s Code, page 126.)</p>

<p>1. Removal of Cause from State to Federal Court. When a petition for the removal of a cause to the Federal Court, accompanied by bond with adequate surety, conditioned as required by law, is presented to the State Court, the adverse party being present in Court and interposing no objection, the order of removal will be made pro forma. If a litigant desires to raise the question of the removability of a cause, on^the case as presented by such petition and bond, he should do so at the time, and will not be heard afterwards, on a motion to vacate the order of removal entered by his acquiescence, especially after the end of the term at which the order was made.</p> <p>2. Order Remanding by U. S. Circuit Court—Appeal Therefrom. A case once removed cannot be redocketed in the State Court while still pending before the Federal tribunals. An order by the United States Circuit Court remanding the case to the State Court is subject to appeal ; when appeal is prayed and granted, the case is still pending in the United States Courts. The State Court will not resume jurisdiction and proceed further until such appeal shall be dismissed, or the order remanding be affirmed by the Supreme Court.</p>

<p> Appeal from the Ouray District Court.) </p>

<p>1. Constitutional Law—Pre-existing Statute in . Conflict with Constitution Repealed Thereby. The constitution of the State of Colorado provides that “ the General Assembly shall not pass special or local laws in any of the following enumerated cases, that is to say * ⅝ ⅜ locating or changing county seats. ⅜ * * In all other cases where a general law can be made applicable no special law shall be enacted.” And the schedule of the constitution provides that “ all laws in force at the adoption of this constitution, so far as not inconsistent therewith, shall remain of the same force as if this constitution had not been adopted, until they expire by their own limitation, or are altered or repealed by the General Assembly.” Held, that a special law of the Territory in relation to the removal of county seats, being clearly within the inhibitory provisions of the constitution respecting laws of a local application relating to that subject, did not remain in force after the adoption of the constitution.</p> <p>2. Same—Constitution Not Self-executing. Section 2 of article XIV, of the constitution, which declares that “ the General Assembly shall have no power to remove the county seat of any county, but the removal of county seats shall be provided for by general laws,” is not self-executing.</p> <p>3. Same—Removal of County Seats. No provision having been made by the General Assembly after the adoption of the constitution, prior to February 11, 1881, for the removal of county seats, it follows that the attempted proceedings to remove the county seat of Grand county within that period, were without authority and void.</p>

The material facts in this case, upon which the opinion of the Court is based, are as follows: First—On the 1st of November, 1870, the Burlington and South Western Railway Company made its mortgage to certain trustees to secure the payment of certain bonds, whereby it conveyed its then present and future to be acquired property, being its railroad then made and to be constructed from Burlington, Iowa, to St. Joseph, Missouri.

<p>1. The Express Business has, by the necessities of commerce and usages of those engaged in transportation, become a distinct branch of the carrying trade, for the delivery of small and valuable packages.</p> <p>2. Railroads must afford Facilities for. It is the duty of railroads to provide suitable conveyances, by special cars or otherwise, for the safe and proper transportation of express matter, including messengers, which facilities must be extended on equal terms to all engaged bona fide in the express business.</p> <p>3. Compensation to Railroads. Railroads can only charge such express companies a reasonable rate of compensation for such service; if this cannot be agreed upon between the parties, it may be determined by the Courts.</p>

Action in damages against the defendant, a municipal corporation organized under an act of the Legislature of Utah.

<p>Practice—Implication. That which is apparent to the Court, and appears, from necessary implication, out of the record, may be regarded the same as if expressly recited. Allowing time to file an appeal bond implies that an appeal was prayed.</p>

<p>Practice—Implication. That which is apparent to the Court, and appears, from necessary implication, out of the record, may be regarded the same as if expressly recited. Allowing time to file an appeal bond implies that an appeal was prayed.</p>

<p> On motion to dismiss appeal from the County Court of Lake County.) </p>

<p>Charge to Jury—Construed as a Whole. In construing a charge to the jury, each instruction is to be considered in connection with the entire charge, and if, considering the charge as a whole, the Supreme Court is satisfied the jury were not improperly advised as to any material point in the case, and that, reading each instruction in connection with the others, they were not misleading, the judgment will not be reversed on the ground of erroneous charge—although an isolated instruction, considered by itself, may appear defective.</p>

<p>Jurisdiction of Crime—State and Federad. The Circuit Court of the United States for the District of Colorado has no jurisdiction of an indictment against a white man for the murder of a white man within the Ute reservation in the State of Colorado.</p>

<p> On habeas corpus.) </p>

<p>Practice—Time of Maying Motion for New Trial and Filing Bill of Exceptions. Section 201 of the Civil Code (King’s Code, Sec. 192,) is not mandatory, but directory merely, as to the time at which the Court shall pass upon a motion for a new trial. Where, at the same term at which findings were made by the Court, a motion for a new trial was made, but not passed upon until the next succeeding term, such action operated to reserve the case for further consideration, and continue the jurisdiction beyond the term—no judgment having been entered on the findings. The Court had power to decide motion for new trial and settle the bill of exceptions at the succeeding term.</p>

) This was an action in ejectment tried in the District Court of the first judicial district of Wyoming Territory, before Peck, J., without a jury, and decided in favor of Mrs. Boughton, who was plaintiff in the action below. The case was then taken by writ of error to the Supreme Court of the Territory, where the judgment was affirmed. It was then taken up by writ of error to the Supreme Court of the United States.

<p>1. Descendable Realty—Possession of Lots in Town Site. One in possession of lots which form a part of an original town site, at the date of the grant, being the rightful occupant and bona fide owner of the improvements thereon, is entitled, as such, as beneficiary under the act of Congress of May 28, 1864, and, under the statutes of the Territory of Colorado in 1865, such possessory right had the status of real estate, and as such descended to the heir.</p> <p>2. Same—Patent—Conveyance—Trust. Patent having issued to such town site, a conveyance by the Probate Judge to another than the heir is unauthorized by the act of Congress of May 28, 1864, and in violation of the trusts which it declared and imposed. While the legal title will pass by such conveyance to the grantee, his holding will be in trust for the heirs—any subsequent purchaser from such grantee will hold upon the same trusts—unless as a bona fide purchaser without notice he took the title discharged of the trusts.</p> <p>3. Same—Notice. A purchaser having knowledge that the ancestor was the owner and in possession of the improvements on such lots at the time of the grant of the town site, and that the deed was made by the Probate Judge to another than the heir, “ to save the expense of going through the Probate Court,” in order to make sale of the property, is chargeable with notice. Reliance upon mistaken legal advice, after full inquiry and knowledge of the facts, will not protect such purchaser as against the heirs.</p> <p>4. Sale of Infants’ Realty. The power to sell the inheritance of infant heirs is purely statutory, and no sale thereof can be made that will bind the infants, except by compliance with the statutory provisions, statute.</p> <p>5. Rents and Profits—Improvements, etc., thereon. The purchaser of real estate to which infants are entitled, must account to such infants for the rents and profits thereof for the time the same has been held by him—less any reasonable sum paid by him for improvements, insurance, taxes, etc.</p> <p>6. Same—Interest. Rents are compensation for the use of real estate, as interest is compensation for the use of money. Interest on rents and profits is in the nature of compound interest, and may be imposed in the exercise of a sound discretion; but only when the possession was mala fide. Judgment for restitution with rents and profits is equivalent to a decree for repayment of a trust fund with simple interest, and meets the full equities of the case, whan the purchase and possession were in good faith.</p>

) The defendant was tried in the District Court upon an information charging him with having unlawfully exercised and carried on the trade and business of a retail liquor dealer without having paid the special taxes required by law to be paid. To this information the defendant entered a plea of not guilty, and upon the trial it appeared that he had sold a compound, designated by him as a tonic, composed chiefly of alcohol.

<p>Amendment not Allowed Which Changes Cause of Action. An amendment to a complaint which changes an action ex contracto, to an action ex delicto, will not be allowed, even under the latitude in pleading tolerated under the Code.</p>

<p> Error to the District Court of Boulder County.) </p>

Ruling on Demurrer.) This is an action by an employee of the Denver and Rio Grande Railway Company for damages for injuries alleged to have been received to plaintiff in consequence of the negligence of defendant in failing to provide a suitable and safe caboose— the hearing being upon demurrer to the complaint, the averments of which are sufficiently stated in the opinion.

<p>Location-Discovery-Plat of Survey. Consideration of the points presented by protestants against issue of patent in this case.</p> <p>Vein. Several definitions of a vein or lode presented.</p>

<p>1. Where a sheriff, with a process against the property of one person, seizes, by virtue thereof, the property of another, he is guilty of official misconduct, for which he and his sureties are liable in an action on his official bond; nor does it matter, as to the liability of his sureties, whether he do this knowingly and willfully, or through gross carelessness, or mere indifference to official duty.</p> <p>2. Where, notwithstanding formal defects in a petition, enough is alleged to support a judgment in favor of the plaintiff, it is not subject to general demurrer.</p> <p>3. As to attachment creditors of the mortgagor, a pre-existing debt already due is a good consideration for a chattel mortgage, and protects the mortgagee to the same extent as woulffa new consideration given at the time of making the mortgage.</p> <p>4. A chattel mortgage of a stock of goods, containing a clause by which the mortgagor is given possession with a power of sale in the usual course of trade, the proceeds to go in satisfaction of the mortgage debt, although by our statute made presumptively fraudulent, is not conclusively so, and may, by satisfactory evidence, be shown to have been made in good faith.</p> <p>5. The question whether there was fraudulent intent in the giving of a chattel mortgage is, in all cases, one of fact, and must be raised, if at all, by suitable pleading.</p>

<p>1. Plaintiff May Dismiss, But Papers Remain and May be Used as Evidence. A complainant has an undoubted right to dismiss his suit, either in whole or in part. But the pleadings will remain a part of the record, and, if material and competent, may be relied upon by the adverse party as evidence in the case.</p> <p>2. Amendment—As to Subsequent Facts. In an action to cancel notes, etc., alleged to have been procured by duress, it may be competent as matter of evidence to prove the subsequent killing of the party who executed the notes by the person charged with the duress, but this is not a matter proper to be set up in an amended complaint by the administrator of the deceased.</p> <p>3. Amendment—Insolvency of Deceased. But the administrator in such case may, by way of amendment, set up the insolvency of his intestate at the time the papers were executed.</p> <p>4. Injunction against the negotiation of notes, etc., alleged by a sufficient bill to have been executed under duress, will not be dissolved upon the face of the papers.</p>

<p>1. State Statute—Construction of by State Court binding on Federal Court. In questions involving the construction of the statute law of a State, the United States Courts are bound by the decisions of the Supreme Court to the State, and will receive the same as conclusive.</p> <p>2. Same—Corporations. This doctrine is especially applicable to a decision of the highest Court of a State affirming the validity of the organization of a corporation of the State.</p>

<p> Ruling in matter of Practiced) </p>

<p>Contributory Negligence—Master and Servant. When the master or another servant standing toward the servant injured in the relation of superior or vice-principal, orders the latter into a situation of danger, and he obeys and is thereby injured, the law will not charge him with contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even under orders from one having authority over him.</p>

Defendant was indicted for disturbing a religious congregation. The evidence, as detailed by several witnesses, was substantially this: Defendant is a member of the Methodist church; he sings in such a way as to disturb the congregation; at the end of each verse, his voice is heard after all the other singers have ceased.

S. Circuit Court, Southern District of Illinois.) This was an action of assumpsit by the plaintiff as indorsee against William C. Buchanan and James C. Waugh as drawers of the following bill of exchange: “Office of Belleville Nail Mill Co., J Belleville, III., Dec. 15, 1875. / “ ⅞5>477-13- “Four months after date, pay to the order of John Stevens, Jr., cashier, $5,477.13, value received, and charge same to account of Belleville Nail Mill Co. “Wm.

<p>1. Murder—Jurisdiction. A wound feloniously inflicted in the District of Columbia, of which the victim died without the District: Held, that the giving the wound constituted the felony, and the Courts of the District have jurisdiction of an indictment for murder.</p> <p>2. Insanity as a Defense. When the defense of insanity is interposed in behalf of one charged with crime, it is not error to permit the prosecution to ask witnesses, whether expert or lay, whether, in their opinion, the defendant knew the difference between right and wrong.</p> <p>3. Same. The exhibition of sanity or insanity is not a communication in ,the sense of the rule which protects the privacy and confidence of the marriage relation; hence it is not error to allow a former wife of accused to testify whether, in her association with him, she ever saw any evidences of hjs insanity.</p>

<p>1. Ejectment—Patent. In an action of ej'ectment, a patent for land granted by the United States cannot be collaterally attacked.</p> <p>2. Estoppel. Query: Does the doctrine of estoppel apply to one who is not the owner of real estate, but only taking steps to so become, as, applying for patent?</p> <p>3. Same. An owner of real estate who stands by and allows improvements to be made thereon, while he may not be permitted to claim the improvements, will not thereby be estopped to assert title to the fee.</p> <p>4. Same—Notice. One making application for patent to mineral land, is required by law to put on the premises notice thereof. The Courts will presume such notice given; which notice is of itself a warning to all that the parties are about applying for a patent—seeking to obtain title. If one party knows the facts, or has opportunity to know them, and chooses to take his chances, the other party is not estopped.</p> <p>5. Same—Promise. A promise to convey title when obtained will not estop the promisor to assert such title by action in ejectment.</p>

<p> Appeal from. Circuit Court of Green County.) </p>

<p>1. Attorney has no Lien Unless Given by Statute. An attorney has no lien for fee unless conferred by statute, and a party to a suit has an undoubted right to settle his suit without the consent of his attorney.</p>

The facts appear in the charge of the Court below, viz: “This is an action of ejectment brought by James Corcoran and B. L. Richards against J. R. Fredericks and The Lewisburg Building Association, to recover a piece or parcel of land, situated in Wayne township, this county, which was formerly the property oí J. R. Fredericks, one of the defendents.