Volume 26 — Colorado Reports

<p> Motion to Retax Costs. </p>

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

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

This action was commenced by appellee, as plaintiff in the court below, to recover damages resulting from the death of her husband, who was killed at night-time, by the derailing of an engine, upon which he was employed by appellant, in the capacity of fireman, and is the second time it has been before this court for review.

<p> Error to the County Court of Rio Grande County. </p>

<p> Original Application. </p>

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

Drror to the District Court of Larimer County. By the pleadings, the issue was made between the plaintiff in error, as plaintiff below, and defendants in error, as defendants in the trial court, as to which had the prior right to the use of water from the Cache la Poudre river.

Original Application. Fob disobedience of a writ of injunction issued out of the district court of El Paso county, petitioner was adjudged guilty of contempt, and an order entered, directing that unless within a specified time he purge himself of such contempt by doing certain acts, that he be committed to jail, until he did. From this judgment he sued out a writ of error to the court of appeals, and applied for a supersedeas, which was denied.

<p>1. Appellate Practice — Findings—Presumptions.</p> <p>Where the evidence is not preserved in the hill of exceptions it must be presumed that it was sufficient to sustain the-verdict of the jury and the finding of the court.</p> <p>2. Mining Claims — Known Lode Included in Placer Location.</p> <p>A placer location and patent confers neither title nor right of possession to lodes and veins known to exist within its limits at the time patent is applied for, and a subsequent locator of such lode or vein is not a trespasser upon the rights of the placer locator.</p> <p>3. Mining Claims — Title of Locator — Action to Quiet Title.</p> <p>A locator of a lode mining claim acquires an estate and interest in real property and is treated as the owner in fee as to every one except the United States, and has such title as will support an. action to quiet title under section 255 of the civil code.</p> <p>4. Mining Claims — Known Lode within Placer Location.</p> <p>Section 2333, U. S. Kev. Stats, fixing the width of a lode claim within the boundaries of a placer claim at twenty-five feet on each side of the vein applies not only when the lode is located by the placer claimant, but applies as well to others who locate a lode within the boundaries of a previously located placer.</p>

The plaintiffs in error, twenty-three in number, instituted this action in the district court of Jefferson county to restrain the defendant in error from compelling them to prorate water with its stockholders and others, whose appropriations were subsequent to theirs.

<p>1. Water Bights —Public Lands — Easements — Statutory Construction.</p> <p>Under sections 2339 and 2340, Bevised Statutes of tlie United States, recognizing water rights that have accrued and become vested by-local customs and laws, and confirming the right of way of ditches and canals that have been constructed through public lands for the utilization of such water rights, and directing that all patents shall be subject to any vested water rights,'of rights to ditches and reservoirs used in connection with them, a party is not entitled to an easement over any public land for a reservoir used in connection with a water right until he has first acquired a vested and accrued water right.</p> <p>2. Same — Beservoir Sites.</p> <p>The approval by the secretary of the interior of a map of a reservoir site filed under the provisions of an act of congress of March 3,1891, gives such reservoir a right of way only over such lands as were vacant and unappropriated at the time of the approval of the map. The locator of such a reservoir acquired no right of way over lands located and for which the government had issued a final receiver’s receipt prior to the approval of the reservoir site.</p>

Ik 1891 the general assembly passed an act to provide for the better assessment and collection of revenue. See Session Laws, 1891, p. 290.

On the trial of the issues thus formed, the conservator was adjudged to he indebted to the estate in the sum of $2,958.89, and ordered to pay the same into court within a specified time, from which judgment he appealed to the district court, where, on trial de novo before a jury, a verdict was returned, finding the balance due from him to the estate to be $2,754.05.

<p>Cities and Towns — Elections — City Tbeasueeb — Statutoey Constbuction — Constitutional Law.</p> <p>Under section 4504, Mills’ Ann. Stats., city treasurers of cities of the second class were elected annually on the first Tuesday in April for a term of one year. Prior to the election in 1897 the legislature passed an act with the emergency clause providing that on the first Tuesday in April, 1897, and every two years thereafter a treasurer should be elected for a term of two years and repealing all acts in conflict therewith. This act was not approved by the governor until after the election in 1897. Held, that the act is not in violation of any clause of the constitution; that the act took effect from the date it was approved by the governor, and repealed section 4504, Mills’ Ann. Stats.; that taking effect after the first Tuesday of April, 1897, that part of the act providing for an election on that date was inoperative, and the first election under the new act would be on the first Tuesday in April, 1899. The treasurer elected in 1897 was elected under the old law for one year, but that law having been repealed there could be no election under its provisions in 1898. And if the effect of the new act was to create a vacancy, a party claiming an election for a full term in 1898, and not as having been appointed to fill the vacancy, is not entitled to the office as against the old treasurer holding over from the election of 1897, and the old treasurer is entitled to exercise the duties of his office until his successor is duly qualified.</p>

<p> Motion to Vacate Order Granting Writ of Assistance. </p>

<p> Original Proceeding. </p> <p> Question from Senate. </p>

<p>1. Labobebs’ Wages — Constitutional Law — Question ebom House OE BePEESENTATIVES — JUKISDICTION.</p> <p>A bill for an act to secure to laborers and others the payment of their wages in lawful money of the United States, and prescribing penalties for its violation, involves private rights of individuals and corporations, and is not a bill concerning matters publici juris, such as will invoke the jurisdiction of the supreme court upon a question from the house of representatives as to its constitutionality under section 3, article 6 of the constitution authorizing the submission of questions to the court for its opinion.</p> <p>2. Same.</p> <p>A resolution asking the supreme court for its opinion under section 3, article 6 of the constitution that points out numerous particulars in which the bill may conflict with provisions of the constitution, and involves a wholesale exposition of constitutional provisions relating to a general subject, will for that reason be refused consideration by the court.</p>

Appellee, as plaintiff in the court helow, brought this action to recover from appellant, as defendant, the sum of $4,197.40, which he claimed as statutory fees due him for services rendered as clerk of the board of county commissioners, and for fees and the reasonable value of services performed as county clerk of Garfield county, between January 10, 1888, and January 1, 1891.

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

<p>1. Attobmeys at Law — Disbabment Pboceeding — Sebvice of Notice— J UBISDICTIOJT.</p> <p>Under sections 200, 201 and 202, Mills’ Ann. Stats., providing for disbarment of attorneys and providing that written notice stating grounds of complaint and copy of rule to show cause shall be duly served upon the attorney; but not directing how the notice shall be served; notice and copies mailed by the clerk properly addressed to the attorney at his place of residence is sufficient to give the court jurisdiction of the proceedings and the person of the attorney.-</p> <p>2. Same.</p> <p>Jurisdiction in disbarment proceedings cannot be ousted by respondent’s removal from the state after service of notice but before return day of the rule to show cause.</p> <p>3. Attobneys at Law — Disbabment Pboceediegs — Peactice—Default.</p> <p>In disbarment proceedings where the respondent makes default the charges must be proven.</p>

<p> Appeal from the District Court of Weld County. </p> <p> On Motion to Dismiss Appeal. </p>

<p>Appellate Practice — Rules op Court — Abstracts—Dismissal.</p> <p>Where an appellant or plaintiff in error fails to comply with 'Rule 14, supreme court rules, governing the printing of abstracts of records the appeal or writ of error will be dismissed.</p>

<p>Constitutional Law — Question fbom Senate — Pbactice.</p> <p>The supreme court will not pass upon the constitutionality of a proposed bill upon a question from the senate when to do so would require a review of former decisions of the court in litigated cases.</p>

Plaintiee in error was charged with the crime of burglary, and convicted and sentenced to a term in the penitentiary. The building which he was charged with having entered, and from which ore was claimed to have been stolen by him, was situate on the Orizaba Mining Claim No. 1.

<p>1. Pleading — Evidence—Contracts—Practice.</p> <p>It is not error to refuse to permit plaintiff to introduce evidence to establish a contract sued on and set up in the complaint, although the answer denies all the allegations of the complaint, where in a second defense of the answer it is distinctly alleged that subsequent to the making of the contract as alleged in the complaint, plaintiff and defendant entered into a compromise agreement and new contract, and that all former agreements concerning the matter at issue were merged into this latter agreement, and plaintiff in his reply admitted making the later contract as alleged, but pleaded a release.</p> <p>2. Trust Deeds — Corporations.</p> <p>An officer of a corporation may act as trustee in a deed of trust in which the corporation is beneficiary.</p> <p>3. Trust Deeds — Foreclosure Sale — Redemption.</p> <p>Where a grantor in a deed of trust is entitled to redeem from the trustee’s sale he must tender the purchaser the amount due before he can ask the court to enforce his right of redemption.</p> <p>4. Stipulations — Failure to File — Dismissal.</p> <p>Where a compromise agreement was made in settlement of a note upon the promise of the holder of the note to dismiss a suit then pending against the maker, the maker cannot avoid the compromise agreement on the ground that the payee failed to file the written stipulation, when the case was dismissed in accordance with the agreement.</p>

<p>Constitutional Law — Question from House of Representatives.</p> <p>The supreme court will not express its opinion upon the constitutionality of a proposed act of the legislature, where the resolution of the house of representatives submitting the question expresses no doubt of its constitutionality, and it does not appear that the bill has been reported by a committee, or has passed second reading.</p>

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

<p>1. Appellate Practice — Bill of Exceptions — Evidence.</p> <p>Where on appeal or writ of error the errors assigned are of such nature as to require an examination and review of all the evidence, the bill of exceptions must show either expressly or by necessary implication that it contains all of the evidence, else the errors cannot be • considered.</p> <p>2. Same.</p> <p>Documents introduced in evidence, marked as exhibits and filed with the clerk, do not become part of the record, unless made so by the bill of exceptions. Such documents must be incorporated in and made part of the bill of exceptions before they can become part of the record.</p> <p>3. Same.</p> <p>Where the bill of exceptions contains a statement that the defendants offered in evidence the fact that certain cases were pending in court, and the court was requested to take into consideration the pleadings therein, but the bill did not include the pleadings, it does not contain all the evidence, and cannot be considered.</p>

In the case of Keese et al. v. City, 10 Colo. 112, it was held hy this court, that the assessments levied to defray the expense incurred in constructing a sewer in the thirteenth sewer district of the city of Denver, under the provisions of ordinances passed by its council March 6, 1882, and July 8, 1883, which created this district, and under which such assessments were made, could not be enforced, because the provisions of the city charter, relative to conditions…

Action in ejectment, by defendant in error, as plaintiff below, against defendant, who is plaintiff in error here, to recover possession of certain real estate, situate in tbe city of Leadville. For answer, defendant pleaded: First. A general denial. Second.

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

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

<p> Original Proceeding. </p>

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

<p> Original Proceeding. </p>

<p> Original Proceeding. </p>

<p>1. Practice — Questions from Governor or General Assembly.</p> <p>In ex parte proceedings on questions from the governor or either house of the general assembly the court will not inquire into or determine for itself disputed questions of fact. Eor the purposes of the opinion, and for those only, the facts as recited or as assumed by the governor or house asking the question may be taken as true, but are not binding upon the parties in any subsequent litigation, or upon the court in other proceedings, and not necessarily in the ex parte proceedings.</p> <p>2. Constitutional Law — Printing Amendments to Bills — Mandatory Provisions.</p> <p>Section 22, article 5, of the constitution requiring all substantial amendments to a bill to be printed for the use of members of the general assembly before final vote is taken on the hill is mandatory on the legislature.</p> <p>3. Same.</p> <p>The house passed a bill to create a state board of assessors to consist of all the county assessors of the state. The senate amended the bill, dividing the counties into five classes and providing that all the assessors should choose from their number one assessor from each class who, with certain state officers who compose the state board of equalization, should constitute the state board of assessors. Held, that the amendment was a substantial one within the meaning of section 22, article 5, of the constitution requiring all substantial amendments to be printed before final vote on the hill.</p> <p>4. Same — Judicial Question.</p> <p>Whether or not an amendment to a bill is a substantial one, within the meaning of section 22, article 5, of the constitution, such as is required to be printed before final vote on the bill, is a judicial question to be determined by the courts, and not a legislative one to be determined by the legislature.</p>

The appellees and Brookover and Howard, were the owners of the Iranistan and Bobtail lode mining claims and mill-sites connected therewith.

Plaxntiee in error is hopelessly insane, having been adjudged a lunatic by the probate court of Sedgwick county, Kansas, in 1878, and has been confined in an asylum in that state since 1879. The court in which the inquisition was had, appointed defendant in error, Throckmorton, conservator of his estate. In 1893, the latter applied ex parte to the county court of Arapahoe county for appointment as conservator of the estate of his ward in tins state.

This action was originally brought by Mrs. Luie Davis, as plaintiff below, against defendant (appellant here), on a benefit certificate issued by the latter to one J. R. Davis, in which she was designated the beneficiary. Plaintiff having died prior to the trial, her administrator was substituted.

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

<p>1. Criminal Law — Perjury—Information.</p> <p>In an information for perjury tlie omission of tlie word “willfully” from tlie charging part of the information is not cured by the use of the word “ corruptly,” or by alleging that the testimony was known by defendant to be false and untrue, but an allegation that ' the defendant did “ feloniously, unlawfully, corruptly and falsely ” testify instead of usingthe statutory language “ willfully, corruptly and falsely” is sufficient to bharge the offense since the word “ feloniously ” is equivalent to and supplies the omission of the word “willfully.”</p> <p>2. Practice in Criminal Cases — Special Prosecutor — Authentication of Information.</p> <p>Where the district attorney is disqualified from prosecuting a case and the court appoints a special prosecutor, the prosecutor so appointed is authorized to sign an information in the case in his own name, and the fact that he placed before his name the name of the district attorney and added to his own signature the words “ special deputy ” neither added to, nor detracted from, the proper authentication in his own name. The additions will be treated as surplus-age.</p> <p>3. Evidence — Hearsay—Prejudicial Error.</p> <p>The testimony of an official stenographer as to what a witness had testified in a former case in which the defendant was not a party is hearsay and incompetent, and its admission over defendant’s objection is ground for reversal unless it appears so clear as to be beyond reasonable doubt that the error did not and could not have prejudiced the rights of the defendant.</p>

This is an action to quiet title to the south 1/2 of the southwest 1/4, and the southwest 1/4 of the southeast 1/4 of section 17; and also the northwest 1/4 of the northeast 1/4 of section 20, township 1 north of Range 1 W., situate in Mesa county, Colorado. Appellant, Levi A. Barnett, plaintiff below, claims to be the owner in fee simple, and in possession of the land. The defendants Jaynes and Gallaher claim title thereto through a tax deed.

This action was brought by the appellee in the district court of Larimer county against appellant to recover damages for the death of her unmarried son, William M. Mitchell.

The appellee, as plaintiff below, instituted this action in the district court of Arapahoe county, to recover from appellant, who was the defendant below, compensation for legal services.

This application in the name of the people on the relation of John W. Love was made in tbe district court of Eagle county for a writ of mandamus to compel tbe board of county commissioners of Eagle county to enter in its records an order directing the removal of the county seat of that county from • Red Cliff to the town of Eagle.

This is the fifth time this case, in some form, has been here. Held: and they were denied. On the same day the prisoner was arraigned and pleaded not guilty in the four cases in which he was respectively changed with the killing of Bell, Miller, Noon and Humphrey; and thereupon, on motion of the district attorney against the objection of the defendant, the five causes were consolidated for trial.

<p>Appellate Pbactioe — Motion to Dismiss Appeal.</p> <p>A motion to dismiss an appeal will not be heard in advance of a consideration of the cause on its merits, where a determination of the motion will incidentally determine the rights of the parties to the subject-matter of the controversy.</p>

<p>1. Appellate Practice — Motion to Strike Brief.</p> <p>Only in extreme eases will a brief be stricken from tlie files on tlie ground that it is misleading or not confined to a discussion of tlie points in the case.</p> <p>2. Same.</p> <p>Amotion to strike a brief from tlie files on the ground that the counsel filing it has no authority to appear for the party, will not be passed upon in advance of a consideration of the merits of the issue where a determination of the motion to strike would involve a discussion of the merits of the questions at issue.</p>

<p>Appeals and Writs of Error — Jurisdiction.</p> <p>Section 23, article 6 of tlie constitution providing tlaat writs of error shall lie from the supreme court to every final judgment of the county court, has no application to actions originating in the county court and appealed to and tried de novo in the district court. ’</p>

<p>1. COBPOBATIONS — LIABILITY OP DlBECTOBS — CONSTITUTIONAL LAW.</p> <p>Section 491, Mills’ Ann. Stats., providing in substance that every corporation shall annually, within sixty days after the first day of January, make and file with the recorder of deeds a report, and that a failure to do so, unless the capital stock has been fully paid, shall make all the directors or trustees jointly and severally liable for all the debts of the corporation contracted during the year next pre-; ceding the time when the report should have been filed, is not in contravention of section 21, article 5 of the constitution providing that no bill shall be passed containing more than one subject which shall be clearly expressed in the title. The title “ To provide for the formation of corporations ” is broad enough to cover section 491.</p> <p>2. Pleading — Demubbeb—Motion.</p> <p>An objection to a complaint that two or more causes of action are improperly united in one count cannot be raised by demurrer but must be raised by motion. A demurrer on the ground that two or more causes of action are improperly united in one count will not reach the objection that the complaint contains two or more causes of action that cannot be properly joined in the same suit even if stated separately. To raise that objection the demurrer must state specifically that the complaint contains causes of action that cannot be joined.</p>

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

This is the second time that this ease has been before this court. The opinion rendered on the former hearing is reported in 22 Colo. 102.

The late general assembly passed an act creating the county of Teller out of territory embraced within the counties of El Paso and Fremont, which is entitled “ A bill for an act to establish the county of Teller, and the temporary county seat thereof, providing for the appointment of its precinct and county officers, fixing the terms of court therein, and attaching the same to certain congressional, senatorial, representative, judicial and normal districts.” By this act the…

<p>Mining- Claims — Location Certificate — Record.</p> <p>Where the locator of certain mining claims, within the time prescribed by statute, lodged his location certificates with the county clerk for record and was notified by the clerk that they would be recorded, but the clerk held them about six months and returned them without being recorded, when they were again returned to the clerk with a fee and recorded, the locator did all the law required of him in respect to recording his claims, and his locations cannot be defeated by subsequent locations in conflict therewith, certificates of which were recorded after the clerk received the former location certificates but before they were actually recorded. The fact that the recording fees were not paid in advance was a matter alone between the clerk and locator, and by accepting the certificates for record without demanding his fees in advance the clerk waived that condition.</p>

<p>1. Constitutional Law — Saloons—Keeping Open on Sunday.</p> <p>Session Laws, 1891, page 315, entitled “ An aot to regulate tlie keeping of saloons and other drinking places or resorts, and imposing penalties for a violation of such regulations,” and providing a penalty for •keeping open any saloon, bar or other place where spirituous and other liquors are kept and sold, after midnight and on Sundays is not in contravention of section 21, article 5, of the constitution requiring the subject of an act to be clearly stated in the title.</p> <p>2. Same.</p> <p>That part of section 2 of the act regulating the keeping of saloons, etc., Session Laws, 1891, page 315, which makes certain facts prima facie evidence of guilt is not in violation of paragraph 8, section 25, article 5 of the constitution providing that the legislature shall not pass any special law “ changing the rules of evidence in any trial or inquiry.”</p> <p>3. Same — Excessive Penalties.</p> <p>Session Laws, 1S91, page 315, prohibiting the keeping open of saloons, etc., after midnight and on Sundays and providing as a penalty for its violation a fine of not less than $100 nor more than $500, or imprisonment not less than six nor more than eighteen months or both such fine and imprisonment at the discretion of the court, is not in violation of section 20, article 2 of the constitution providing that excessive fines shall not be imposed, nor Qruel and unusual punishments be inflicted.</p> <p>4. Appellate Pbactice — Ceiminal Cases.</p> <p>A defendant convicted of violating one provision of a statute, on appeal is not entitled to an exposition of the effect and scope of other provisions of the act he is not charged with violating.</p> <p>5. Appellate Practice in Criminal Cases — Evidence.</p> <p>On appeal from a conviction in a criminal case where facts were proven which taken in connection with legitimate inferences drawn therefrom were sufficient to warrant the verdict, or finding of the trial court, of the guilt of defendant, and the facts being particularly within defendant’s knowledge are unexplained, the finding or verdict will not be disturbed.</p>

<p>Opinion followed.</p> <p>This case is affirmed on the opinion in Cardillo v. The People, ante, p. 355.</p>

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

Under the procedure provided for that purpose in the act of 1881, the district court of Bent county, in adjudicating the priorities to the use of water for irrigation hi district No. 67, rendered a decree, which, inter alia, awarded to the canal owned by the appellant priority No. 9 as of date December 3, 1897, and to the canal of appellee, the Amity Land and Irrigation Company, priority No. 7 as of date February 21, 1887.

Original Proceeding. This is an original application to this court for a writ of prohibition to restrain the district court of Arapahoe county and the Hon. George W. Allen, one of the judges of said court, from hearing and determining the applications of Charles N. Hanford and Henry Ernest for writs of habeas corpus.

<p> Original Proceeding. </p>

<p> Original Proceeding for Mandamus. </p>

ON REHEARING. In December, 1890, appellee Adams instituted an action against appellants for the purpose of establishing that certain land, the title to which had descended to them from John W. Iliff, deceased, was held by them in trust for his benefit. A trial of this action resulted in a judgment in favor of appellee, from which appellants appealed to this court, where the judgment' was affirmed. Warren v. Adams, 19 Colo. 515.

<p> Original Proceeding for Disbarment. </p>

<p>Jurisdiction — Franchise—Water Company.</p> <p>Where an incorporated water company has a franchise to lay-pipes for a water system in the streets and alleys of a city, and contracts with the city to furnish water at certain rates of certain quality and purity and to maintain certain pressure at fire hydrants, an action by the city against the company to enforce this contract does not involve a franchise so as to give the supreme court jurisdiction on appeal.</p>

Original Proceeding. At a preliminary examination before a justice of the peace, upon a charge of contracting to labor in a smelter in excess of eight hours per day, the defendant was committed to jail in default of giving the required bail; and to secure his liberty has filed in this court his petition for a writ of habeas corpus.

<p> Original Proceeding. </p>

This action was originally brought by Job A. Cooper to recover for the loss of a building destroyed by fire, upon which plaintiff in error had issued a policy of insurance, which would not expire by limitation until after the date of loss. Since the case was brought to this court, the defendant in error has departed this life, and his executrix has been 'substituted in his place.

<p>1. Water rights — Appellate Practice — Bill of Exceptions.</p> <p>Under section 2429, Mills’ Ann. Stats., providing that in appeals from adjudications of priority of water rights under the statute, only so much of the evidence as affects the ditches mentioned in the order of appeal need be copied into the bill of exceptions, the bill of exceptions must be certified by the trial judge as containing all the evidence in any manner affecting the ditches named in the order allowing the appeal, and in the absence of such certificate the court will decline to consider whether or not the decree is contrary to the evidence.</p> <p>2. Water Bights — Appellate Practice.</p> <p>Where in an adjudication of water rights an appropriator has been awarded all to which he is entitled, both as to volume and time, be cannot on appeal complain of awards to others not affecting his rights, though they may have been erroneous, or based on insufficient evidence.</p> <p>3. Same.</p> <p>On appeal from an adjudication of water rights it is too late to raise the objection that the referee failed to take the oath prescribed by statute, where no such objection was made below.</p>

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

This action was brought by the defendants in error in the county court of Clear Creek county to recover a money judgment against the plaintiffs in error, and to enforce a miner’s lien.

The parties to this action in the year 1892 formed a co-partnership to carry on the general merchandising business in the town of Lafayette, Boulder county, Colorado. Subsequently its scope was enlarged to include the purchase of certain real estate and the construction and repair of buildings thereon, the purchase and improvement of a cemetery lot, and the development of a mining claim.

<p>1. Cities and Towns — Practice.</p> <p>Defects in tlie incorporation of a town or omissions and irregularities in tlie adoption of ordinances cannot be raised in the light of the record of this case.</p> <p>2. Same — Actions for violating ordinance — Title op case.</p> <p>Our statutes regulating the procedure before police magistrates in cities of the first and second class, and providing that actions to recover fines and to enforce penalties for violation of ordinances must be brought in the corporate name, do not apply to incorporated towns. Actions for violation of ordinances of incorporated towns must be brought in the name of the people of the state of Colorado.</p>

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

<p>Attorneys at Law — Disbarment—False Swearing.</p> <p>An attorney who obtained his license to practice liis profession in this state upon the faith of a license from another state and by .falsely-swearing that he bad never been disbarred by any court of record in which lie had practiced, will be disbarred and his name stricken from the roll of attorneys upon showing that his oath was false and that he had been formerly disbarred in another state.</p>

<p>Attobneys at Law — Disbabment.</p> <p>For forging the name of his client to an order for money, and for collecting and appropriating to his own use money belonging to his client, and refusing to turn over same to the owner on demand, an attorney will be disbarred.</p>

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

June 18, 1896, appellee, as plaintiff, commenced this action to recover from appellant, as defendant, upon four causes of action, as follows: 1. Balance for the reasonable value of services rendered between the 1st day of March, 1885, and the 11th day of August, 1895. 2. Balance for the reasonable value of board, lodging, washing and mending of clothing, furnished and performed between the 1st day of January, 1880, and the 1st day of March, 1885.

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

This is an action for deceit based upon false representations made by the original defendant Lyman H. Cole concerning the number of cattle owned by him, which he exchanged with the plaintiffs for real estate.

In the district court of Montrose county in a cause entitled Osborne et al., plaintiffs, v. Anderson Shore et al., defendants, a temporary writ of injunction, on plaintiffs’ application, was issued against the defendants commanding them to “ refrain from and desist from cutting, filling, or in any manner interfering with the Chipeta ditch, * * * its embankments and rights of way, and with the repairs and operation of the same by the * * * Chipeta Ditch Company.” This…

<p> Original Proceedings of Disbarment. </p>

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

Appellee was tried in the court below for the violation of an ordinance of the city of Denver, which in terms prohibited any person, firm or corporation to keep open or conduct, within the limits of the city, any clothing or other certain enumerated stores, or pawnbrokers’ shop, or to expose or offer for sale, or give away, within the city, any clothing or other articles of merchandise mentioned, or pawnbrokers’ articles, on Sunday.

On October 26, 1889, the Florence Oil & Refining Company purchased of James A. McCandless several parcels of land, in the vicinity of the town of Florence, at the agreed price of $24,895, payable in monthly installments. Four warranty deeds conveying the- land were placed in escrow with the First National Bank of Pueblo, to be delivered to the company upon full payment of the stipulated price. The company at once entered into, and still holds, possession of the property.

<p>1. Appellate Practice — Instructions—Objections.</p> <p>Where the instructions in a case were oral and were afterwards arbitrarily divided into paragraphs and numbered by counsel for plaintiff in error, a general objection and exception to a part of the instruction designated by its paragraph number is insufficient to bring up the instruction for review.</p> <p>2. Same.</p> <p>Where error is assigned to an instruction as a whole, separable parts of which are correct, the assignment is bad.</p> <p>3. Same — Defects cured.</p> <p>Although part of an instruction if taken alone would be misleading and erroneous, yet if it is immediately followed by a further direction on the same matter which clearly lays down the proposition so as to remove any wrong impression the jury might have received from the incorrect part of the instruction, the objectionable part is cured.</p> <p>4. Appellate Practice in Criminal Cases — Bills of Exception— Motion for New Trial.</p> <p>In criminal cases a motion for new trial, the ruling thereon and exceptions thereto are not part of the record unless made so by a bill of exceptions, and unless so preserved by hill of exceptions error cannot be assigned thereon.</p>

The above named plaintiffs in error were separately charged by informations in the district court of Boulder county with the larceny of a horse, the property of one Frederick Sherwood.

<p> jError to the County Court of Arapahoe County. </p>

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