Volume 22 — Colorado Reports

<p>1. Criminal Law — Autrefois Acquit.</p> <p>Where the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first, the plea of autrefois acquit is generally good as a bar to the second prosecution.</p> <p>2. Same.</p> <p>Conspiracy to commit a crime -and the act of committing the contemplated crime being different and distinct offenses, the conviction or acquittal of one cannot be pleaded in bar to an indictment for the other.</p> <p>3. Criminal Practice — Separate Trials.</p> <p>When a case as contemplated by the statute (Sess. Laws, 1891, p. 132) is presented, it is the duty of the court to grant a severance as a matter of right.</p> <p>4. Same — Conspiracies.</p> <p>Where defendants are jointly indicted for a felony, and there is evidence which would be material as to one defendant, but inadmissible as to others, the one against whom such evidence is admissible should be tried separately. The rule applies to conspiracy cases.</p>

<p>1. Appellate Practice — Bill of Exceptions.</p> <p>Where exhibits and other evidence are omitted from the bill of exceptions, the court is powerless to review the findings of the court below upon the questions of fact to which such evidence related.</p> <p>2. Assignments of Error.</p> <p>An assignment of error which does not particularly specify the alleged erroneous action of the court below, or point out where it may be found in the record, is objectionable, and, under rule 11, may be ignored.</p> <p>3. Evidence.</p> <p>A question which calls for the opinion of the witness upon the ultimate fact to be tried by the jury is improper.</p> <p>4. Damages — Evidence.</p> <p>Where the plaintiffs had sold to defendants a right of way through their premises, and afterward brought an action to recover for injuries alleged to have been caused by the negligent and improper manner in which defendants operated the ditch, evidence was admissible to show the extent of the damage to plaintiffs’ adjoining land occasioned by defendants’ failure to keep the ditch in repair, but not to show the value of the land with and without the ditch.</p>

Plaintiff in error was indicted at the January, A. D. 1890, term of the district court of Arapahoe county for the crime of embezzlement. The indictment contains four counts.

Action for a divorce and alimony. The complaint in this case, which was filed by appellee, Mary E. Johnson, in the month of November, 1890, alleges, inter alia, the marriage of plaintiff and defendant in the state of Indiana in 1862. The complaint, aside from some general allegations, sets up two grounds for a divorce: First, the desertion of the plaintiff by the defendant on the 80th day of April, 1889.

* The Western Mortgage and Investment Company (Limited) is a corporation, incorporated under the laws of Great Britain, and doing business in the state of Kansas.

<p> Appeal from the District Court of Arapahoe County. </p> <p>This is an action brought by Jerome against the Carbonate National Bank to quiet title to real estate.</p> <p>On the 11th day of July, 1893, Richard Cline was the record owner of certain lots in Bolim’s subdivision of the city of Denver, in Arapahoe county, Colorado. Upon that day the appellee bank began suit in the district court of Lake county against said Richard Cline upon an overdue promissory note, and in aid thereof sued out a writ of attach- • ment, which, on the same day, it caused to be levied upon these lots.</p> <p>On the 18th day of March, 1890, Cline had given to the appellant Jerome a warranty deed for the same property, which, for more than three years thereafter, was not recorded with the county clerk and recorder of Arapahoe county, and was not recorded until July 12, 1893, one day after the levy of the writ of attachment. This deed from Cline to Jerome, it seems, was executed in pursuance of a contract entered into between them in the year 1889; and it is alleged in the complaint that Jerome at once entered upon the premises under such contract of sale, and thereafter has continuously been in possession up to and until after the levy of the writ of attachment.</p> <p>The acts of possession relied upon are as follows: In January, 1889, when the appellant contracted to buy the land, it was inclosed by a fence, was occupied by tenants of the former owner, and was used for market gardening. After the appellant got the option to purchase the property, he secured a relinquishment of the leases of the tenants, removed the fences from the land, and, with the owners of contiguous tracts, platted the same into lots and blocks, marking out the streets and alleys. Some parts of the land were hilly and rough, some low, and in September and October of 1889 Jerome employed a contractor, who, with fifteen or twenty teams, graded and leveled the surface of the lands, in places cutting it down from five to eight feet, and removed from.eight to ten thousand yards of earth from one portion of the premises to another, — all at the cost of about sixteen hundred dollars. Thereafter, and before the levy of the writ of attachment, the new streets and alleys were again marked out, rounding the surface, plowing out gutters, and marking out the alleys. Some of these things were done before, some after, Jerome secured his deed, but all after his option to buy.</p> <p>At various times appellant went upon the premises, alone, and in company with others to whom he was attempting to sell the land. The property was assessed in his name from 1889 to the present time, and during such time he paid the taxes thereon. The appellant cooperated with owners of adjacent lands in constructing an electric road passing through the property, and in subscribing for a schoolhouse on adjacent property, and the erection of a church on the same ground; and joined contiguous owners in grading Mississippi street and University avenue, which adjoined the laud in controversy. The land has remained vacant and unimproved since its conversion by the appellant from farm lands into suburban lots.</p> <p>It appears, also, from the evidence, that whenever any of the lots were sold by the appellant, — some being sold before, some after, Cline delivered his deed to appellant, — deeds therefor were given by Richard Cline, the record owner, and when there were deferred payments on the purchase price, notes were given to Richard Cline as payee, and trust deeds to secure the payment of the same were given to John L. Jerome, as trustee, for the use and benefit of Richard Cline, and the same duly recorded. Mr. Jerome testifies that these deeds by Cline to the purchasers were given at his request and for his (Jerome’s) own convenience, the title meanwhile standing upon the records in the name of Cline.</p> <p>Other property than that in controversy was levied upon under the writ of attachment. This attachment was sustained, and judgment rendered against Cline in favor of the bank for the amount of the claim, and special execution for the sale of the attached property ordered. At the time of the trial there was no testimonj" that the judgment recovered by the -bank against Cline was unsatisfied. The bank had no actual knowledge of the existence of this unrecorded deed, or of plaintiff’s claim of ownership, unless it was constructively charged with notice thereof by reason of the alleged acts of ownership asserted by Jerome, and such as the alleged acts of possession on his part might furnish.</p> <p>From the judgment of the lower court in favor of the bank, Jerome has brought his appeal to this court.</p>

<p>Case Followed.</p> <p>The judgment in this case is reversed upon the authority of Jerome •».</p> <p>Carbonate National Bank, ante, p. 37.</p>

This is an action for an accounting, brought by A. S. Weston, one of the owners of the Col. Sellers and Accident lode mining claims, against the other owners therein. The undisputed facts are that in the year 1883, W. P. Patrick and John Livezey, Jr., with a number of others, were the owners, as tenants in common, of the Col. Sellers and Accident lode mining claims, situate in Lake county, Colorado.

At the May, A. D. 1895, term of -the district court of El Paso county, plaintiff in error was tried, convicted and sentenced for murder of the first degree. To review the proceedings of the district court he brings the case here upon error.

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

On the 7th day of November, 1889, The Maxwell Land Grant Company instituted this action against The Colorado Fuel Company to quiet title to 800 acres of land situate in township 34, range 64, in Las Animas county, Colorado, averring ownership and possession of the land under and by virtue of a patent issued by the United States to Carlos Beaubien and Gaudalupe Miranda, on the 19th of May, 1879, for a grant of land made to them by the Republic of Mexico in 1841, and known as…

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

<p>1. Constitutional Law — Title op Act.</p> <p>Where the subject of an act is clearly expressed in its title, it is unnecessary to express therein that acts or parts of acts inconsistent with its provisions are to be repealed.</p> <p>2. Evidence — Competency op Witnesses — Statute Repealed.</p> <p>So much of section 944, General Statutes, as disqualified witnesses on account of conviction for crime, was repealed by the act of 1883. One convicted of a felony is a competent witness in a criminal case as well as in a civil action, whose credibility is a matter for the jury to determine.</p>

JError to the District Court of Arapahoe County. The revenues of the state for the fiscal year A. D. 1895, not being sufficient to meet all the appropriations made by the legislature for that year, the auditor refused to issue warrants for a part of the appropriation for the Soldiers’ and Sailors’ Home, and also refused to issue warrants for a part of the salary and expenses of the commissioner of mines and his assistants.

Appellees brought separate actions in the district court, which were afterwards consolidated, and this appeal is taken from the decree rendered in the consolidated actions. The complaints are in the nature of bills in equity to adjudicate and settle all priorities to the use of water from the Big Thompson river.

<p>1. Res Judicata — Wateb Rights.</p> <p>When the quantity of water to which parties to a proceeding under the irrigation acts of 1879-1881 are entitled has been determined by the decree, that question is res judicata.</p> <p>2. Estopped.</p> <p>Those,who accept and participate in the benefits of a decree are es-topped to deny its validity.</p> <p>3. Limitations.</p> <p>A decree in a proceeding under the in-igation acts cannot, in the absence of fraud, be reopened by a party thereto after the lapse of four years.</p>

JError to the District Court of Arapahoe County. On April 24, 1894, the district attorney of the second judicial district filed in the district court of Arapahoe county an information, charging the defendant with the crime of embezzlement. This information contains two counts.

Plaintiff held, under the town site act, possessory title of a lot in Aspen, upon which an illegal tax was assessed and levied hy Pitkin county for the year 1884. Held: under the town site act, possessory title of a lot in Aspen, upon which an illegal tax was assessed and levied hy Pitkin county for the year 1884. For failure to pay such tax the lot was advertised for sale and bid in by the county treasurer for the county.

<p>Pact Case.</p> <p>The conclusions of this court on the facts coinciding with the judgment of the court of appeals, it is affirmed. See Beddin v. Bunn, 2 Colo. App. 518.</p>

<p>1. Tenants in Common — Purchase ob Outstanding Title.</p> <p>A purchase by a tenant in common of an outstanding title to the premises ordinarily inures to the common benefit of all the cotenants, and this rule applies to the purchase by a tenant in common in a mining claim of an interest in a senior conflicting location. '</p> <p>2. Corporations, What Constitutes Notice to.</p> <p>As a general rule a corporation is not affected with notice or knowledge of facts merely because some of its promoters had knowledge of such facts, or because some of its stockholders had notice thereof.</p> <p>3. Same.</p> <p>A corporation is not charged with notice of facts known or acquired by its officer or agent in a transaction in which he acts for himself and not for the company.</p> <p>4. Same.</p> <p>An equitable title is not defeated by the fact that the holders of the legal title convey to a corporation of which they were the promoters and organizers and are its directors and only stockholders. In such case the company stands charged'with the same equities as existed against its grantors and with the knowledge thereof which they possessed.</p>

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

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

On the 1st day of December, 1891, Emma M. Medina, plaintiff in error, instituted this action against Mary G. Medina and Frank J. Medina, in the county court of Douglas county, to set aside a certain order entered by that court in an action theretofore pending between Mary G. Medina and Frank J. Medina, vacating a decree of divorce rendered therein, and an order dismissing that action.

<p> Error to the Court of Appeals. </p>

The matters here in controversy are now before this court for the second time. See Reid v. Sullivan, 20 Colo. 498. In the former case Sullivan, the holder of certain secured notes, brought his action in the district court for the purpose of foreclosing upon certain deeds of trust; such action having been brought before the claims forming the basis of the action were presented for probate.

Plaintiff in error, John A. Bradford, was tried in the district court of Arapahoe county upon an information charging him with the crime of forgery. In the first count it is charged in substance that he did falsely and feloniously make and forge a cheek of the tenor following, to wit: “ Denver, Colo., Sept. 24th, 1892.

The appellant, who was one of the defendants below, was the owner of an eighty acre tract of land, being the north one half of the northeast one quarter of section 12, etc., in Jefferson county, Colorado.

<p>1. Eight of Wat, Conveyance of.</p> <p>B. was the owner of three twenty-five foot lots, numbers 14, 15 and 16, of a certain block, lot 16 being on the corner, 15 next adjacent, and 14 next to that. He conveyed to T. 100 feet off the front end of lot 14, by deed, which was duly recorded, containing this provision: “ It is expressly agreed by the parties hereto, and as a part of the consideration hereof, that the said party of the first part agrees to open and use as a private alley the following described strip or parcel of land [describing a ten foot strip extending from the street across said three lots immediately in the rear of the front 100 feet thereof], said strip of land to be used as a private alley so long as party of second part, her heirs and assigns, shall require the same for such purpose. The title of said ten foot strip of land to remain in the party of the first part.” Held, nothing further by the parties was required to be done to vest in the grantee a right of way over and along said strip of land; and, further, that' B. could only sell the naked title thereto subject to the easement.</p> <p>2. Estoppel..</p> <p>The estoppel in pais alleged against the appellee is not supported by the evidence.</p>

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

On the 3d day of September, 1886, the First National Bank of Denver brought its suit against Albert L. Johnson upon the latter’s promissory note to the former in the sum of over nine thousand dollars, and in aid thereof sued out a writ of attachment, which, upon the 4th day of the same month, was levied upon an undivided one fourth interest in the Sierra Nevada lode, standing at the time on the records of Lake county in the name of said Johnson.

This action was originally commenced by The Farmers’ Highline Canal & Reservoir Company, as plaintiff, against Torrence White.

On the 8th day of March, 1894, the appellee filed in the district court of Arapahoe county a petition entitled “ In the Matter of the Assignment of M. J. McNamara,” and addressed to the honorable judges of that court, wherein it is alleged, in substance, that on the 18th day of July, 1893, M. J. McNamara, a resident of the county of Arapahoe, state of Colorado, made a general assignment, conveying to one M. M. Van Fleet, as assignee, all his property of every kind and…

Marie Wollschlager briDgs this action against The Supreme Lodge of The Knights of Honor on a benefit certificate for $2,000 issued by that order on the life of her husband,. Louis Wollschlager, and payable to her as the beneficiary. In her complaint she sets forth in haec verba the certificate, alleges the death of Louis Wollschlager, and that proofs of such death were made to the satisfaction of appellant.

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

This is an action of an unlawful detainer brought by The E. F. Hallack Lumber and Manufacturing Company in the county court of Arapahoe county against Andrew J. Kelly to recover possession of lots 1 and 2, in block 262, Clement’s addition to the city of Denver. The cause was tried to the court; judgment for plaintiff. Kelly brings the case here for review.

<p> Error to the Court of Appeals. </p>

<p> Appeal from the Court of Appeals. </p> <p>On August 19,1889, the appellees filed their complaint in the district court of El-'Paso county, wherein it is alleged, in substance, that on December 26,1888, Boyes was induced, by false and fraudulent representations, to convey by warranty deed to The Green Mountain Falls Town and Improvement Company 160 acres of land situate in El Paso county, Colorado. That said land was of the value of $7,000. That the company owned land south and west of this quarter section, which constituted the town site known as “ Green.Mountain Falls.” That in consideration of such conveyance the company agreed to pay $100 in cash and build a $75,000 hotel on the property west of and adjoining said land during the summer of 1889. That they would grade the streets and make other valuable improvements, which would make the property very valuable, and that they would reconvey to him every tenth lot. That, relying upon the truth of these representations, he made the conveyance to the company. That the company had done nothing towards performing its contract except to pay the $100 and survey the land into lots in such a way as to make a division thereof intricate, if not impracticable, since a number of the lots as platted lie partly on lands of the company other than that conveyed. That the company had made a written demand for a division, and threatened to sell the property. Thereupon Boyes tendered the $100 and demanded a rescission of the contract. Prays for a cancellation of the deed, etc.</p> <p>The defendant company answers, denying all allegations of fraud; denies that it agreed to build a hotel which would cost $75,000, or of any description whatever, and avers that the only considerations for said deed, except the payment of the $100 in cash, which had been paid, were expressed in the written contract executed at the time the deed was delivered, which1 was as follows :</p> <p>“Know all men by these presents: That The Green Mountain Falls Town and Improvement Company, a corporation with its principal office in the city of Colorado Springs, County of El Paso, and State of Colorado, is held and firmly bound unto James Boyes, of the county and state aforesaid, in the penal sum of Five Hundred dollars ($500) lawful money of the United States, for the payment of which sum, well and truly to be made to the said James Boyes, the said company 'binds itself and its successors.</p> <p>“ Sealed with its corporate seal, and dated this 26th day of December, A. D., 1888. ■■</p> <p>“The Green Mountain Falls Town and Improvement Co.</p> <p>“ F. E. Dow, President,</p> <p>“I. J. Woodworth, as Secretary.</p> <p>“ The condition of the above obligation is such that,</p> <p>“Whereas, The said James Boyes has executed a warranty deed, running to the said Green Mountain Falls Town and Improvement Company, of the following property, to wit:</p> <p>“The southwest quarter (1/4) of the southwest quarter (1/4) of section five (5), and the north one-half (1/2). and the southwest quarter (1/4) of the northwest quarter (1/4) of section eight (8) all in township No. thirteen (13), range No. sixty-eight (68) west, situate in the county of El Paso, and state of Colorado.</p> <p>“Now, Therefore, If said company shall survey, grade and improve the streets on said lands, make other valuable improvements thereon, and commence within thirty days of the date hereof, to survey into lots and plat said lands, or so much thereof as said company may deem' practicable, and deed to said Boyes one-tenth of said lots so platted, to be divided as follows, to wit:</p> <p>“ Said Boyes to draw one of said lots, and said company to draw nine of said lots, said drawing to be continued until all of said lots platted are drawn, also to pay said Boyes one-tenth of the net proceeds from the sale of .said lands not surveyed and platted by said company, and to allow him, the said Boyes, to retain the house now occupied by him, then this obligation to be null and void, otherwise of full force and effect.</p> <p>“ It is distinctly understood and agreed by said Boyes that the penalty and conditions of the above obligations are subject to the validity and sufficiency of the above warranty deed above referred to.”</p> <p>Averred that it did, within thirty days of the execution of said contract, commence surveying and platting said land into lots, and so much of said land as was deemed practicable was platted into town lots, to the number of about one hundred and fifty, and such plat was duly recorded on July 2, 1889. Averred its willingness, and offer, to make conveyance of the lots, and the refusal of Boyes to accept the same. That no time was specified as to when the grading and other improvements should be made, but it was the understanding between the parties that this part of the contract should be performed when needed; and that the other improvements -contemplated was the bringing of water upon the land for the use of the inhabitants, when.the same should be needed. That it had entered into contract with parties for water pipes through the streets, to be completed June 1, 1890, and was then negotiating with parties to grade the streets. To this answer a replication was filed, which pleaded the statute of frauds to the written contract set forth in the answer. The cause was tried to the court, which found the issues joined in favor of the defendant, and rendered a decree dismissing the plaintiff’s complaint for want of equity, and decreed performance on the part of Boyes in accordance with the prayer of defendant’s cross complaint. On appeal to the court of appeals, the judgment of the court below was reversed. From that judgment the defendant company prosecutes this appeal.</p>

This was an action, equitable in its nature brought by the appellee against the two appellants and W. J. H. Miller and Nora Miller, his wife. The complaint, briefly summarized, states that in the year 1887 the defendant W. J. H. Miller was the equitable owner, with the right to the legal title, of certain interests in the Harrisburgh, the Denver, and the La Salle mining claims, situate in Pitkin county, Colorado.

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

To this action, as originally instituted, there was but one party plaintiff, who sued in his own behalf and for the benefit of all others interested with him. Before the issues were made up, however, those jointly interested were made, by order of the court, parties plaintiff.

Upon petition to amend the order heretofore made, making writ of error a supersedeas and fixing bail.

Action to reform policy of accident insurance and for judgment upon policy as reformed. Judgment for plaintiff; defendant appeals. On the 27th day of October, 1890, the appellant, The United States Mutual Accident Association of the city of New York, was doing a general accident insurance business, with its principal office in the city of New York.

This action was commenced in the district court by appellant, S. P. Brown, for the specific performance of an alleged contract made with Joseph Lapham, one of the appellees.

On the 1st day of July, 1893, two informations were filed in the county court of El Paso county against William Goshen, the plaintiff in error, charging him with an assault and battery upon one Y. J. Holeck. The informations were consolidated for the purpose of trial. Pie was found guilty and sentenced to pay a fine of $15.00 and costs upon each. Error is assigned upon the giving and refusal of certain instructions.

Henrv W. Erle died insolvent. James Thompson, since deceased, on the 3d day of April, 1893, presented a claim against his estate for $777.90, which was duly allowed. At the time of the allowance the claim was partially secured by certain collateral transferred to him by Erie in his lifetime. Afterwards, by leave of the probate court, he disposed of the collateral and realized thereon the sum of $219, which was applied upon the claim.

<p> Original Application for Writ of Mandamus. </p>

The plaintiff in error, John Q. Charles, and the defendants in error, Thompson & Tomlinson, entered into a written contract, dated April 10, 1889, for the erection and completion of a six-story building on the corner of Fifteenth and Curtis streets, in the city of Denver, for the sum of 197,525, payable in installments as the work progressed, less twenty per cent of the work done and material furnished, which was to be deducted and held back until the building was fully…

, This action was brought- for the purpose of obtaining a decree declaring void an ordinance adopted by the city council of the city of Leadville on the 23d day of June, 1891, fixing the water rents to be paid to the plaintiff company by the citizens of Leadville.

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

In the year 1889 The Bijou Reservoir & Canal Company was incorporated under the general incorporation laws of this state, for the purpose of building an irrigating canal in the counties of Morgan and Weld. In the month of July of that year it duly filed, in the office of the county clerk of the respective counties, its map and survey, showing the general route of the canal, and the statement required by section 1720 of the General Statutes of 1883 and the amendments thereto.

The plaintiff in this case was F. P. Sieglitz; the defendants were James F. Mason, Thomas S. O’Neal, and the Colorado National Bank.

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

This is one of a number of suits that arose out of the failure of the Bank of Leadville in 1883. It was instituted in the court below by appellee, Robert B. Estey, as plaintiff. Jacob T. Long, John W. Long, Cody W. Derry, George W. Trimble, and appellant A. S. Weston were made defendants.

Appeal from the Court of Appeals. The decision of the court below in this case is reported under the title of Miller et al. v. Girard et al., 3 Colo. App. 278.

<p>Law of the Case.</p> <p>A conclusion reached upon appeal constitutes the law of the case and must be accepted as controlling in all subsequent proceedings.</p>

Action for personal injuries. In the trial court the plaintiff recovered judgment for fifty-five hundred dollars ($5,500). This judgment was affirmed by the court of appeals, and from this latter judgment this appeal is prosecuted. Plaintiff, at the time of receiving the injury, was a passenger for hire upon a street car that was being operated by the defendant company in the city of Denver.

<p>1. Pbactice.</p> <p>Generally, questions of negligence and of contributory negligence are questions of fact to be determined by tbe jury, but, where the facts are undisputed, it may become the duty of. the court to determine such questions as matters of law.</p> <p>2. Negligence — Employees’ Rules.</p> <p>Under the facts in this case, the railroad company is held to have been negligent in failing to adopt and promulgate more specific and definite rules for the guidance of its employes and tending to insure their safety.</p> <p>3. Employee and Employ^.</p> <p>When an employé of a corporation is suddenly ordered into a place of danger, without opportunity for reflection or time for investigation, by one having authority over him, the company, in case the employé Is injured, will not be relieved by his obedience, unless the danger was so apparent that no reasonable man would assume the risk.</p> <p>4. New Trial — Misconduct of Jury.</p> <p>When the misconduct of the jury was not willful, but resulted from inadvertence, a new trial will not be granted, unless injury be shown; but where it was willful, the verdict may be set aside for this reason alone.</p>

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

Hamill was the owner of a ranch near Denver. He borrowed large sums of money of the Bank of Clear Creek County, and gave a trust deed on this ranch to secure the payment of the same. The note was not paid at maturity, and for such alleged default the holder requested the trustee to proceed to sell the property under the trust deed, which the trustee did, and the hank became the purchaser at the foreclosure sale.

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

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

<p>1. Appellate Practice — Bill of Exceptions.</p> <p>Papers or copies thereof attached, without reference, to a bill of exceptions after the signature of the trial judge are no part of the record and cannot be considered.</p> <p>2. Same.</p> <p>The trial judge is the only officer authorized to authenticate a bill of exceptions.</p> <p>3. Same.</p> <p>When papers are not properly incorporated into the bill of exceptions, it will be presumed that the ruling of ’the trial court as to their admissibility in evidence was correct.</p> <p>4. Assignment fob Benefit of Cbeditobs — Ebatjdulent Conveyances.</p> <p>If conveyances made prior to an assignment for the benefit of creditors are in fraud of the assignment act, they will not operate to invalidate the assignment, but the assignee may recover the property so fraudulently conveyed.</p>

Appellee, plaintiff below, whose place of business is in the city of Boston, Massachusetts, being the owner of certain merchandise, placed the same in the hands of The J. M. Clark Commission Company of Denver, Colorado, to be held for him, subject to delivery upon his order.

Action to recover damages for personal injuries caused by defendant’s negligence. On September 24, 1890, the plaintiff, William J. Nesbit, was employed by The Denver Tramway Company in the capacity of conductor on its street cars. On October 17, 1890, in the morning, he took charge of a train consisting of a motor and trail car, and was engaged in operating the same upon the company’s Lawrence street line.

<p>1. Contracts — Statute op Frauds.</p> <p>A subsequent agreement, void by the statute of frauds, does not revoke or modify the previous contract.</p> <p>2. Same.</p> <p>If, by virtue of a subsequent agreement, one having an option to discharge his obligation to pay cash by the conveyance of certain real estate refuses to avail himself of that privilege and places the property beyond his control, he will be held liable under the original contract.</p>

Platntiee in error, Joe Walker, was convicted and sentenced upon information filed without leave of court. In this information he is charged with unlawfully keeping open a tippling house on the first day of the week, commonly called Sunday, étc. The information is signed by the district attorne3r, by his deputy. Attached to the information is the affidavit of the prosecuting officer, stating that the facts therein are true to the best of his knowledge and belief.

<p>1. Appellate Pbactice — Amendments.</p> <p>The court may allow bills of exceptions to be withdrawn for amendment in accordance with the facts, in case the application to amend is presented in apt time, and the amendment asked for is reasonable and necessary to the full presentation of the cause.</p> <p>2. Same.</p> <p>In proceedings to review a decree adjudicating priorities to the use of water under the irrigation act, it is only necessary to incorporate in the bill of exceptions all the evidence bearing upon the particular point sought to be reviewed.</p> <p>. 3. Same.</p> <p>When the bill of exceptions is so imperfect in omitting other material evidence received in the court below and bearing upon the issues sought to be reviewed that the proposed amendments would leave it still defective, permission to withdraw it for amendment will be denied, and it may be stricken from the files.</p>

Original Proceeding— Certiorari. From the record certified to us it appears that on July 3, 1895, W. Y. Kaufman filed in the district court of Arapahoe county his petition for a writ of habeas corpus, wherein it is alleged that he was unjustly and unlawfully detained and imprisoned by the sheriff of Arapahoe county in the common jail at Denver, by virtue of an alleged warrant or execution against the body, which warrant or execution is in words and figures following: “ State…

Foe the purpose of constructing a wagon toll road from Idaho Springs in Clear Creek county, Colorado, along Virginia Canon to the dividing line between Clear Creek and Gilpin counties, there was organized, on the 20th of December, 1865, the Virginia Canon Wagon Road Company, under the provisions of an act of the territory of Colorado concerning corporations, approved March 11, 1864.

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

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

This is an action brought by David M. Richards against The Northern Colorado Irrigation Company, in the district court of Arapahoe county, to recover damages for its refusal to furnish water for irrigation purposes. The complaint contains two distinct causes of action.

<p>Original Proceeding — Habeas Corpus.</p>

<p> Error to the District Court of La Plata County. </p>

The original complaint, filed in June, 1882, in substance alleges that Margaret E. Cody, the mother of plaintiff Paris McKim, was the owner of certain lots in the city of Denver which in 1872 she transferred to the defendant Mullen by a quitclaim deed; that said deed, although absolute on its face, was given by her, and accepted bjr the defendant, as a mortgage to secure the payment of about |500 then owing to the defendant by Mrs. Cody; that thereafter, in 1878, Mrs. Cody…

<p>1. Insurance.</p> <p>Upon application and payment of the premium by Q., the owner of the property, the company insured the goods against loss or damage by fire. Attached to the policy was a provision: “Loss, if any, payable to Mrs. H. J., as her interest may appear;” Mrs. H. J. being a mortgagee. Contained in the policy were the usual provisions declaring the policy void if the risk be increased by any means within the control of the assured, or if any change takes place in the title or possession of the property by sale, legal process or any kind of conveyance, without the consent of the company indorsed on the policy. Before the loss Q. conveyed the property unconditionally to H. J., without the consent or knowledge of the company. Held, that the contract of insurance was one direptly between the company and the mortgagor; that it was the mortgagor’s and not the mortgagee’s interest that was insured, and that the sale of the property, being in violation of the terms of the policy, invalidated it.</p> <p>2. Same — Arbitration.</p> <p>A. policy contained a provision that damage to property not totally destroyed might be appraised upon an agreement between the assured and the company. After loss, they entered into such agreement, submitted to arbitrators the determination of the amount of the loss, and the mortgagee of the injured property participated in the proceedings. Held, that the mortgagee was bound by the award until it is vacated for fraud or other sufficient reason.</p>

Ih this one appeal are embraced three several actions, commenced in the district court by Jane H. Smith, as plaintiff, against Horace G. Smith, Jr., Ralph Smith and Jessie F. Smith, defendants respectively. In the court below the actions were consolidated and tried as one action. The complaints are alike in each of the three cases, except as to the party defendant.

Action for personal injuries. Verdict and judgment for plaintiff for twenty-five hundred and eighty-nine (2589) dollars. Defendant appeals.

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

jError to the District Court of Arapahoe County. In the year 1889 the legislature established the office of steam boiler inspector. The act provided that “said inspector shall receive an annual salary of two thousand five hundred (2,500) dollars and mileage at ten cents per mile, payable as other state officers.” For the purpose of carrying out the provisions of the act, the legislature made special appropriations therefor, and continued to do so until the year 1893.

This cause comes to this court upon writ of error to the judgment of the court of appeals affirming the judgment of the district court. The issues are formed by a demurrer to the complaint.

The plaintiff in error was jointly indicted with George E. Cratei’, Jr., in the district court of Arapahoe county. The indictment contained three counts, the first charging them with conspiracy to defraud Jabez F. Clark by means of false pretenses; the second with conspiring to defraud Clark by-means of false pretenses, and setting forth the means employed; and, third, that of obtaining the money of Clark by ■ means of false pretenses.

This is a mandamus proceeding submitted upon an agreed state of facts, from which it appears that in the year 1893 the board of county commissioners of Pueblo county, being, of opinion that the needs of precinct No. 1 in that county required an additional justice- of the peace, increased the number of justices by the appointment of an additional'jus-i tice.

The appellee Benjamin Mattice, plaintiff below, as the assignee of the rights of Charles E. Collins, brought this action to establish a trust in real estate, and for a decree, based thereon, awarding him the interest claimed, and also for an accounting, and for general relief. The pleadings are long and the evidence voluminous, but an intelligent understand ing of the case and the legal questions involved may be had by a condensed statement of the complaint and the testimony.

This is a condemnation proceeding under the eminent-domain act. The petition alleges the ownership in the petitioner of a certain irrigating ditch theretofore built over and across the lands of the respondent, Moon, in Jefferson county, Colorado.

These two cases were commenced in the police magistrate’s court in the city of Denver, and taken on appeal to the county court.