Volume 3 — Colorado Reports

<p>When a time is fixed by order of the court, within which to prepare and present a bill of exceptions, and it becomes necessary to attest and prove the same by affidavit under the statute, the record should show that the attesting and proof was within the time limited by the order.</p>

Action of debt brought in the probate court of Arapahoe county, upon a judgment recovered in the circuit court of. St. Louis county, State of Missouri, by August Wetzel against James Marr.

Assumpsit. To.the declaration, which is substantially set forth in the opinion of the court, the defendant filed six pleas: First, the general issue; second, payment; third, set-off. The fourth, fifth and sixth pleas were in substance as follows: 4th.

<p>1. Under the general issue to the common counts in assumpsit for work and labor, the defendant may recoup damages.</p> <p>2. A party may not stand by and see work in the erection of a building pio: gress to completion, and then for the first tim'e object that the work was not done in strict accordance to the plan, refuse payment and charge the builder with the cost of reconstruction. The builder is, in such case, entitled to recover what the work is reasonably worth.</p> <p>3. When work is done under a contract, the terms of the contract should settle the amount to be paid, unless it is shown that in consequence of variations from the plan, the compensation agreed upon should be diminished, and the proper measure of damages in such case is the diminution of the value of the building resulting from the variation.</p> <p>4. The declarations of one acting as the agent of both parties to a contract, if made within the scope of his authority, are properly receivable in evidence in an action between the parties to the contract.</p> <p>5. The recalling a witness is a matter within the discretion of the court below and cannot be assigned for error.</p>

Doane & Company, the defendants in error, began a suit by attachment in the district court of Weld county against Oliver S. Glenn and Rufus E. Talpey, who entered a special appearance for the purpose only of quashing the writ. A herd of cattle was seized under the writ, and Lock-hart T. Glenn and George O. Talpey filed an -interplea, under the statute, .claiming to be the owners of the property attached.

This was an action of replevin, brought in August, 1871, by Lockhart T. Glenn and George O. Talpey against Jared L. Brush, sheriff, in the Weld county district court, to recover possession of a herd of Texas cattle, numbering between seven hundred and eight hundred head, a number of calves,- being the increase of the herd, six horses, two yoke of work oxen, a wagon, etc. This property had been seized upon and detained on a writ of attachment issued out of the Weld county…

The defendant Morrison was United States revenue collector for Colorado, Nathaniel Young was his deputy for the district embracing Gilpin and Clear Creek counties. On the 17th of June, 1872, Young, who was doing business as a banker in Gilpin county, became insolvent, and among others was owing the defendant Morrison moneys received in the line of his duty as deputy collector.

The- questions discussed are upon the admission of certain evidence, which is sufficiently stated in the opinion of the court.

Upon suggestion the only point presented was, whether in this matter a writ of error would lie to remove the record of proceedings in this behalf out of the probate court.

Upon the trial of this cause in the district court, the plaintiff, Maggie Hartman, testified, that about the 1st of December, 1873, she deposited with one Morrison, for safekeeping, certain diamond rings and other personal property of value ; that Morrison was keeping a restaurant in Denver, and that she was staying at his house; that she never, saw Morrison after the 4th of December, 1873, and had not seen the property after she gave it into his keeping; that .Morrison…

Judgment in ejectment was rendered Juñe 80,1875, from which the district court allowed an appeal, but the penalty of the bond was not specified in the order. Time was allowed for filing bond until the 15th day of October, 1875, the same to be approved by the clerk, and on the 9th day of that month appellants filed a bond in the sum of $300.

The only error assigned in the supreme court was the dismissal of the appeal by the district court for want of jurisdiction.

<p>A petition for habeas corpus must contain the evidence adduced before the committing magistrate.</p>

<p>1. Under the statute of Colorado an assault with intent to murder is felony.</p> <p>3. It is error to render a verdict in a charge of felony, the defendant being absent and under confinement in jail; his right to be present cannot be waived by counsel.</p>

This was an action of replevin, brought by the appellee, John Arms, against Julius L. and Gustav Bartels, the appellants, to recover possession of a quantity of brick claimed and taken by the appellants from the appellee’s possession under a bill of sale from one Giles, to the appellants.' The bill of sale bears date July 14,1873. The brick claimed and taken were not in existence at that date, and their manufacture not begun until the 25th day of July, 1873.

Trover by an assignee in bankruptcy to recover damages for the conversion of certain chattels. The declaration contained two counts, averring property, in the plaintiff as assignee, before and after the bankruptcy, and right of possession; plea of the general issue interposed. The cause was tried at the special December term, 1874, by the court, a jury being waived. The defendants had judgment to reverse which this writ of error was sued out.

<p>The verdict being for the defendant in an action ex delicto, and the evidence conflicting without a decided preponderance in favor of the plaintiff, the verdict will not be disturbed upon the ground merely that it is against the evidence.</p>

The National Land and Improvement Company and the Colorado Springs Company were corporations authorized by law to acquire and hold lands, and to dispose of them by sale or otherwise. Charles B. Lamborn, as trustee, received a patent from the government of the United States for certain lands situated in El Paso county, Colorado.

Ltjndin, as administrator of John Sodonquest, brought an action on the case under the statute (act of 1872, page 117), for the use of the surviving father, mother, brother and sister of Sodonquest, against the Kansas Pacific Railway Company, for injuries occasioned by the alleged negligence of the railway company, resulting in the death of the intestate.

. This was a suit in equity, commenced by John G. Jaeger, the appellant, in the district court of Arapahoe county, to recover money claimed to be due him by the appellees, Bichard E. Whitsett and Fox Diefendorf, for an alleged fraud practiced upon Mm by tbe appellees in tbe sale and conveyance of two lots in Larimer street in tbe city of Denver, and also to cancel tbe deed.

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

Assumpsit. On the 17th of July, 1868, Webb made his promissory note payable to Martin or order, eighteen months after date, for the sum of $1,414.15, with interest at three per cent per month from date until paid. The note was indorsed, “Pay to the order of Luther A. Cole, value received. John H. Martin.” Cole as indorsee sued Martin as indorser. The cause was tried by the court without a jury, and the plaintiff recovered judgment for $2,478.07.

<p> Appeal from District Court of Gilpin County. </p> <p>Action of debt on a sheriff’s bond. The facts are stated in the opinion.</p>

This was an action on the case under the statute (act of 1872, p. 117), by Louisa Twombly, as administratrix of the estate of George W. K. Twombly, against the Kansas Pacific Railway Company, to recover damages for the death of the intestate, caused, as she alleged, by the negligence of the defendant in the management of a switch engine then being run on the defendant’s track, at the intersection of I and Wynkoop streets in the city of Denver.

<p>1. In an action of unlawful detainer (R. S., p. 333, § 5), where the complainant alleges a tenancy and a holding over, and there is evidence tending to show that the defendant is in occupation under an agreement to purchase, held, not error to instruct the jury that, if they should find the defendant went in under an agreement to purchase, the plaintiff could not recover.</p> <p>2. A verbal lease by a, feme covert of lier real estate, though with the concur* rence of her husband, is void.</p> <p>3. Estoppels to he binding must be mutual.</p>

Ok the 16th day of April, 1872, L. O. Tolies and A. A. Smith made their promissory note for $200, payable to the order of A. F. Hoppie, ninety days after date. The name of John Best was indorsed on the back of the note. On February 2, 1873, Hoppie sued all of the parties before a justice of the peace, and obtained judgment against Tolies and Best, Smith not having been found.

Baxter & Hob-son were, upon their own petition, adjudicated bankrupts, on the 19th day of May, 1873. Up to about the 5th day of May, 1873, Baxter & Hobson had been engaged in carrying on the business of merchant tailoring. About the 17th day of March, 1873, Baxter & Hobson were indebted to the appellant in the sum of $2,500, which was secured, by a chattel mortgage upon their stock of goods.

This was an action commenced by Roberson, the appellee, against the Kansas Pacific Railway Company, the appellant, to recover $3,000, alleged to be due from the company to Roberson, as its agent on the Pacific coast.

<p> Appeal from District Court of Jefferson County. </p> <p>The case is stated in the opinion.</p>

¡Error to Probate Court of Arapahoe County. This was an action in assumpsit upon a promissory note,. given by Sanborn to Cree for $1,700. The declaration contained a special count and the common counts.

<p> Error .to District Court of Gilpin County. </p> <p>The case is stated in the opinion.</p>

On the 11th day of March, 1874, Myron F. Thomas made and delivered to the Colorado Springs Company (a corporation) his promissory note for $1,200, which was indorsed by Winne & Cooper, and Matt France. Suit was commenced upon the note after maturity, in the district court of El Paso county, by the payee against all the parties above named, and service had upon each.

This was an action in trover brought by Archibald against Yenine to recover damages for the alleged conversion of two horses, a wagon and harness. ■ The cause was originally instituted before a justice of the peace in Olear Creek county, from whose judgment an appeal was taken to the probate court. Upon the trial in the probate court, before a jury, Archibald obtained a verdict for $217.

This was an action brought to recover taxes paid under protest to the collector of taxes for the city of Denver. It was contended by the plaintiff that the tax was illegal, having been assessed upon lands not subject to taxation for municipal purposes. The defendant had judgment upon a trial before the court below upon an agreed statement of facts. The plaintiff prosecutes this writ of error to reverse that judgment.

The material portions of the stipulation upon which this cause was brought to this court are as follows : “It is hereby stipulated and agreed by and between Miller & Markham, attorneys for the plaintiff, and Henry M. Teller, attorney for the defendant in the above case, that the following facts were proved or admitted on the trial of this case by the jury, before the Honorable Andrew W. Brazee, judge of the first judicial district, at the September term, A. D. 1875, of said…

During the month of September, 1872, one Bonghten, of Cheyenne, Wyoming Territory, wrote on behalf of one Heenan to the Hallack Brothers, the defendants in error, at Denver, Colorado Territory, requesting them to send to Laramie, Wyoming, certain articles of their manufacture to be used in the erection of a building at Laramie, which Heenan was then under contract to build for the Wagner Brothers, the plaintiffs in error.

This was an action of ejectment commenced by appellant, against the appellee, in the Jefferson county district court, on the' 19th day of May, A. D. 1873, for the recovery of the, possession of lots one, two, three, four, five and six in block nine in Bush & Fisher’s Addition, to Golden City, in Jefferson county. The declaration was in the usual form claiming tne premises in fee. Plea of not guilty.

<p>1. Where the hill of exceptions fails to show that all the evidence in the court below is preserved in the record, this court is deprived of the right to review the judgment of the lower court upon the evidence.</p> <p>2. A bill of exceptions is to be regarded as a pleading of the party aggrieved, and must be construed most strongly against the party who prepared it. The regularity of the proceedings of the lower court must be presumed un- ■■ less the contrary appears in the record.</p> <p>3. When the trial is by the court without a jury, and no exception is reserved to the judgment, this court has no power to review the judgment of the lower court upon the evidence.</p> <p>4. A suggestion of diminution to enable the party to bring in a more perfect transcript of the record after the cause has been submitted and determined will not be entertained.</p>

This was an action in assumpsit for rent. The cause was commenced by Levi EL Shepard, the agent and attorney of Emma Washburn, against Henry E. Lyon, before a justice of the peace. The plaintiff recovered a judgment from which the defendant appealed to the probate court of Clear Creek county.

This was an action of . assumpsit commenced in the probate court of Arapahoe county, to recover the price of a lot of furniture sold and delivered. The declaration consisted of the common counts. Pleas, general issue, and a special plea that the furniture was warranted by plaintiffs to be first-class in material, quality and finish, but that the same was not first-class.

The bill, which was filed in this suit on the 9th day of November, 1872, alleges that Yevy Ann King, the appellee and complainant in the court below, in the month of January, 1870, jointly with George P. Packard, the appellant, purchased and received a conveyance of Clemency M. Mcllvoy and Dennis D. Mcllvoy, certain lands situate in Jefferson county, Colorado.

On the 14th of May, 1875, Lobenstein and others, the defendants in error, filed a bill in the probate court of Arapahoe county to restrain the city of Denver, plaintiff in error, from taking forcible possession of a certain lot of ground then owned and occupied by the defendants, but claimed by the city as a street.

<p>Upon suing out a writ of error from this court, a non-resident of the State must give security for costs, as required by the statute. Nor can the filing of a bond for a supersedeas accomplish that purpose, or in any sense waive the necessity of filing security for costs. . •</p>

The defendants in error sued an attachment out of the probate court of Las Animas, on the 10th day of July last, under which the now plaintiffs in error were summoned and charged, as garnishees. To reverse this judgment they prosecute this writ of error.

This was an action of assumpsit brought by Gfeorge Manning, the defendant in error, against the Atlantic Insurance Company, the plaintiff in error, upon a policy of insurance. It appeared on the trial that on the 23d day of November, 1874, Manning procured of the Atlantic Insurance Company a policy of insurance on a house owned by him in the town of Evans, Weld county, Colorado. The policy was for the sum of $1,500, and was for the period of one year from November 23d, 1874.

<p>An action cannot be maintained upon a bond given pursuant to Eevised Statutes (p. 55) conditioned to pay all such, damages as shall be awarded against the plaintiff in attachment, in any suit or suits which may thereafter be brought for wrongfully suing out the attachment, until judgment has been obtained against the plaintiff in the attachment suit.</p>

Hrror to Probate Court of Clear CreeJc County. The bill in this suit alleges that Georgetown in its corporate capacity, in the name of James GuBm> president of the board of selectmen of Georgetown, under the act of congress of May 23d, 1844, and March 2d, 1867, entered and paid for land embraced within the corporate limits of Georgetown, at the United States Land Office, in Central City, Colorado Territory, »on the 7th day of January, 1874, and from that day, title to the…

<p>A bill of exceptions must be signed and sealed before it can become a part of tbe record, and tbe parties cannot by any stipulation dispense with tbe signature and seal; tbe statute (§ 21, pi 508, B, S ) is mandatory.</p>

The motion of the defendant in error, to strike from the record the bill of exceptions in this case, having been allowed, Mr. Chas. S. Thomas, for plaintiff in error, now moved for leave to file a supplemental transcript of record.

This was an action in assumpsit on a promissory note, by King, the defendant in error, as indorsee, against Munro, the* plaintiff in error, as maker. The declaration consisted of a special count in the usual form, and the money counts. The defendant pleaded the general issue, and a special plea of want of consideration. The plaintiff demurred to the special plea, the demurrer was sustained, and the defendant took leave to amend.

<p>1. A writ of error will not lie to the determination of a court acting in a summary proceeding, not according to the course of the common law.</p> <p>2. By amendment of the Organic Act of March 2, 1863, limited equity jurisdiction was conferred upon courts of probate, and provision was made by the legislature, for writs of error to, and appeals from, the final decisions of such courts.</p> <p>3. A writ of error may issue from this court, to the decree of a probate court, upon a petition of an administrator for leave to sell the real estate of his intestate, for the payment of debts. In such case the probate court sits, not in the exercise of probate jurisdiction merely, but as a court of equity.</p> <p>4. A variance between the writ of error and the transcript of the record as to the character of the parties to the suit may be amended in this court, under the statute, R. S. p. 50, § 12.</p> <p>5. What is sufficient to reverse a judgment can never be cause to quash a writ of error.</p>

On tlie 3d day of June, 1873, Emmerson, the defendant in error, made his promissory note to Webber, the plaintiff in error, for §1,094.87, payable July 1st, 1873, with interest at two per cent per month. To secure the payment of the note, Emmerson executed a chattel mortgage to Webber, on a lot of furniture, in a hotel being conducted by Emmerson. Abont the 27th of June, 1873, Emmerson went away, leaving the property in charge of one Allsberry.

Petition for mechanic’s lien was filed by Valentine, the appellee, in the district court of Grilpin county, against Young, Mellor and Jones.

<p>One of several co-tenants may, if lie will, improve the common estate at his sole expense, and if he assumes to do so, undertaking for himself alone, his co-tenants, being informed of this, are not bound to protest or object in order to avoid liability to those who conduct the labor or improvement. The moiety of the co-tenant in the premises is liable in his hands for the whole value of the improvements made at his instance.</p>

<p>1. When a cause is tried without the intervention of a jury, and no exception is reserved to the judgment, the sufficiency of the evidence to sustain the judgment cannot be inquired into. In the absence of such exception, however, this court may consider all assignments of error based upon exceptions properly taken on the trial, not requiring a review of the judgment upon the evidence.</p> <p>21 An assignment may be made of any property of which the assignor has the actual or potential possession.</p> <p>3. An agent’s authority not coupled with an interest, being revocable at the pleasure of the principal, one dealing with such agent, after notice of revocation, does so at his peril.</p> <p>4. Where an action is brought by one, for the use of another, it is unnecessary l' to allege the use, and if alleged, it need not be proved.</p> <p>5. When a paper is admitted in evidence without objection, it must be held to be admitted by consent of both parties to the action, and to be what it purports on its face.</p>

Steokee, the appellee, obtained a decree in the district court, in December, 1874, for the sum of $1,014 against Schmidt, one of the appellants. Schmidt appealed to'the supreme court, giving bond in $2,000 with Rohlfing and Mahr as sureties. Failing to comply with the conditions of the bond, Stecker commenced his action of debt on the bond at the April term, 1876, of the district court of Arapahoe county.

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

This was an action on the case brought by Hewitt, the appellee, against the Colorado Springs Company, and judgment taken by default. A motion to set aside the default was overruled.

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

Actioh in assumpsit against a common carrier to recover damages for not safely and securely delivering certain goods. The cause was tried to the court, and the plaintiff had judgment for $750. The facts are sufficiently stated in the opinion, the principal point presented in the argument being upon the right of a common carrier to limit his liability by contract or notice.

Tucker and another, the appellants, filed their bill of complaint against McCoy, the appellee, in the district court of Clear Creek county, to quiet title to certain lots in Georgetown, Colorado, alleging title by purchase, occupation and improvements under th'e laws of Colorado and the acts of congress. McCoy filed his answer to which the complainants replied, and the cause was referred to a special master to take proofs.

The plaintiff in error brought an action before a justice of the peace, against the defendants in error, to recover certain rents, and obtained judgment. The defendants in the action appealed to the probate court. In the latter court the defendants obtained a verdict upon which judgment was subsequently entered in their favor for costs. To reverse this judgment the plaintiff prosecutes this writ of error.

This was an action of replevin brought by Barker, the plaintiff in error, as trustee of Hattie Mix, an infant, against Hamilton, the defendant in error. - The declaration was in the cepit and detinet pleas; non cepit, non detinet, property in defendant, and property in a third party.

<p>1, A writ of error must describe specifically tlie record and judgment, and tlie cause wherein such judgment was rendered, and must set forth the parties to that proceeding, and must show to whose injury the error alleged has intervened.</p> <p>3. As to the defendant in error, the writ of error has no office to perform; the defendant in error, who conceives himself entitled to be relieved of the burden of sustaining the record, should address his motion to the scire facias, if he appears in pursuance of that writ, or to the assignment of errors, if he appears voluntarily.</p> <p>3. A writ of error lies to review the proceedings and judgment in one matter only; several judgments between different parties are not examinable upon a single process.</p>

<p> Appeal from District Court of Clear Creek County. </p>

This was an action of assumpsit brought by Randall, the appellee, against Lilly and Ckatfield, the appellants, upon two certain promissory notes. The declaration contained two special counts upon the notes, and the common counts.

The bill in this case states that complainants, as copartners^ as Browne & Putnam, on the 21st of April, 1873, as attorneys, were retained by one Polly A. Shortridge to collect a promissory note signed by James Patterson, payable to one G-.

0 Assumpsit was brought in the county court of Summit county, by Dickson, the defendant in error, against Moffat and Shrock, the plaintiffs in error. Summons was issued directed to the sheriff of Jefferson county, service was had, and the defendants appeared and pleaded to the jurisdiction. The plaintiff demurred generally, and assigned special causes of demurrer to this plea.

On the 15th day of September, 1874, one John H. Speed executed and delivered to Chapin and Core, the plaintiffs in error, a chattel mortgage of certain property then in Speed’s possession, to secure the payment of twenty-four promissory notes, of even date with the mortgage. These notes were payable, the first, one month after date, the next, two months after date (a note falling due each month), the last, payable twenty-four months after date.

This is a writ of error to the district court of Pueblo county, to reverse a judgment rendered in the above cause by Hon. James B. Beleord, associate justice at the December term, A. D. 1874, of .said court.

Assumpsit on a promissory note brought by Clark, the defendant in error, against the Holden Paper Co. and A. P. Anderson, plaintiffs in error, impleaded with Reuben C. Wells. The question presented by the record is to the sufficiency of the service of process upon the defendants below.

It appears from the record that the defendants below filed their pleas on January 8th, 1877, and that on the same day ■the plaintiffs filed their motion to strike said pleas from the files; that said motion was taken up by the court on the same day, in the absence of the defendants, and sustained; that said motion was heard within a short time after the filing of said pleas in the morning hour, after the hearing of motions and demurrers in other cases which had before been…

At the October term, 1876, of the district court of Jefferson county, the sheriff returned a venire for a grand jury 'of nineteen served. Twelve of these were selected, impaneled .and sworn. They returned an indictment into court against the plaintiff in error for an assault with intent to murder. The defendant below was arraigned, pleaded not guilty, and being put upon trial was convicted.

Appeal -from District Court of Arapahoe County. The appellee had judgment in the court below, for $2,899.25, from which an. appeal is prayed to this court. The case is sufficiently stated in the opinion.

Motion in the county court to quash the writ of replevin. The cause was originally commenced before a justice of the peace, from whose judgment an appeal was taken. The defendant insisted as ground for his motion that the property seized had not been appraised as required by the statute. The motion prevailed, and the cause was dismissed. The plaintiff then sued out this writ of error.

Foote brought unlawful detainer against Walker and another, before a justice of the peace of Rio Grande county, and prevailed. The defendants perfected an appeal to the district court. At the August term, 1876, Foote moved to dismiss this appeal, asserting as the ground of his motion, that no appeal lay to that court, The motion was denied, and this is assigned for error.

The Union Bag and Paper Company brought an action in assumpsit for goods sold and delivered, against Holliday, Pratt and Williams, as copartners, doing business under the firm-name of Holliday &. Co. On the trial, which was by the court, the plaintiff recovered judgment for $1,742.96 and costs, and the defendants sued out this writ of error to reverse this judgment.

To a declaration containing the common counts in assumpsit, a plea of set-off, among others,, was filed, setting forth that “the plaintiff Simonton, and one W. Gr.

, by Cutter against the Board of Commissioners of Arapahoe county, to recover certain taxes paid by him under protest. The plaintiff had judgment below, and the Board of Commissioners appealed to this court.

Jairus Richardson and Hawley H. Gillett were copartners doing business in the city of Denver, from 1860 to the 29th of January, 1865. Held: occupied and enjoyed the premises in controversy, to the exclusion of the complainants, and who, together with John W. Webster, the'administrator of Hawley, are made parties defendant.

At the November term, 1876, of the district court, Moynahan, the plaintiff in error, was indicted for the murder of Patrick Pitz Patrick, tried and convicted. It appeared upon the trial that the name of the deceased was Patrick Fitzpatrick.

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

’ Replevin brought by plaintiff in error in the county court of Boulder county, at the October term of said court, 1876, to recover possession of one sorrel stallion colt, four years old, and thirty tons of hay. The value of the colt being placed by the appraisement at $160 and the hay at. $300. The affidavit was made and filed with the clerk of the county court, on the 5th day of September, 1876, and writ issued the same day.

. Action of debt on an appeal bond. The defendants in error obtained judgment in the probate court of Gilpin county against Freas, one of the plaintiffs in error, for the sum of $301.75. Freas appealed to the supreme court and gave bond with Thomas and Wentworth as his sureties. The appeal was dismissed in the supreme court by defendants in error, for want of prosecution.

This was an action of replevin brought by Hager, the appellee, against Cook, sheriff, to recover certain chattels claimed by Hager, under a chattel mortgage from the Cheyenne, Boulder and Denver Telegraph Company, a foreign corporation.

Error from District Court of Boulder County. Andrew J. Mackey, the defendant in error, filed his bill of complaint against Jerome Thomas and his wife Sarah, the plaintiffs in error, to set aside a conveyance of lands given to Sarah by James Decker, on the ground that there was no consideration moving from Sarah to Decker, and that the conveyance was in fraud of Mackey, who was a judgment creditor of Jerome Thomas, the husband of Decker’,s grantee.

George H. Christ was indicted at the February term, 1877, of the El Paso district court, for the larceny of certain cattle of the property of Bell & Thornton ; was tried at the same term and convicted. A motion for a new trial was overruled, and judgment was entered on the verdict. The errors assigned are discussed in the opinion, which renders further statement unnecessary. ,

Petition for mandamtos to County Court of Jefferson County. The petitioners, Greathouse et at., were legatees in the last will and testament of W arren N. Hoyt; the testator executed a codicil revoking the will. The petitioners were cited by Jameson, judge of the county court of Jefferson county, to appear and show cause why the codicil should not be admitted to probate. Upon their appearance, and a hearing being had, the court admitted the codicil to probate.

<p> Appeal from District Court of Rio Crande County. </p>

<p> Error to District Court of Parle County. </p> <p>.The case is stated in the opinion.</p>

On the 9th day of August, 1878, the defendant in error, John B. Plato, bought of Eli Huston, plaintiff in error, and his son, who were doing business as E. Huston & Co., a certain mare, with the following warranty : “ Denver, Aug. 9, 1873. “ John B. Plato, Esq.: “ Bought of E. Huston & Co., one dark bay mare, black mane, tail and legs, five years old, for the sum of one hundred and fifty dollars, (§150) which said mare I warrant to be kind, true and sound in every…

The facts in this case as well as the character of the action are sufficiently stated in the opinion of the court. It was insisted by the plaintiff that a policy could not be effected by the husband for the benefit of the wife and her heirs in the absence of an enabling statute. Also that the insured, being insolvent, could not invest money in an insurance policy for the benefit of his wife and her heirs to the exclusion of his creditors without statutory aid.

Bond and Bice, the defendants in error, procured an attachment to be issued out of the probate court of Las Anamas county, against Harring and another, the writ commanding the sheriff to serve the county commissioners of Las Anamas county as garnishees. The interrogatories filed were answered by the county clerk, but no appearance was entered by the board.

<p> Error to District Court of Gilpin Qoimty. </p> <p>The case is stated in the opinion.</p>

This was an action of trespass on the case, brought byappellee, to recover for damages sustained by the building of the appellants’ railroad through Montgomery street, in the city of Denver. Appellee claims to be owner in fee of certain lots abutting on said street,' in Hoyt & Eobinson’s addition to the city of Denver. The defendant filed a plea of not guilty and two special pleas.

<p>The statute contemplates the personal seal of the judge to a bill of exceptions, and not the seal of the court. The mistake or default of the judge will not he allowed to prejudice the rights of litigants.</p>

<p> Error to District Court of Arapahoe County. </p> <p>The case is stated in the opinion.</p>

This was an action of assumpsit brought by Smith and another, the defendants in error, against the plaintiff in error, upon a policy of insurance against loss by fire. The jury rendered a verdict in favor of the plaintiffs below, and judgment was entered on the verdict. The facts are sufficiently stated in the opinion.

Demurrer to the answer to a petition for mandamus : -. The sections of the Code passed upon but not set out in full in the opinion are as follows: “Section 307. On the trial the applicant shall not be precluded by the answer of any valid objection to its insufficiency, and may controvert it by proof either in direct denial or by way of avoidance.” “ Section 60.

<p> Appeal from, District Court of Gilpin County. </p> <p>Mr. James B. Beleord now moved to docket this cause and dismiss tlie appeal.</p>

Trespass guare clausum. It was among other things stipulated by the parties in the court below as follows: “ And it is further agreed that the parties waive a trial by jury, and submit all the matters and issues of law and facts to the court, and this agreement is made a part of the record in this case. And the pleadings in the case subsequent to the declaration are hereby withdrawn.

<p>1. Tlie doctrine of dedication lias its origin in public convenience. Public streets are essential for tlie accommodation of town or city, communities, and the proprietor must be presumed to intend wliat is essential to its enjoyment. The term street, used on a map of a city or town, imports a public way for the free passage of its trade and commerce.</p> <p>2. An actual intent to reserve any portion of the lands platted into streets otherwise than by express reservation on the plat, should be made manifest with as equal certainty and publicity as the plat.</p> <p>Actual intent cannot be permitted to avail against an intent shown by unequivocal acts upon which the public have a right to rely.</p> <p>3. Where the fee of a street remains in the dedicator, and his use and occupancy of the ground covered by the easement is acquiesced in by the city» a tax thereon vrill be justified and rendered equitable.</p>

Ejectment. The plaintiff below had judgment. The facts are sufficiently stated in the opinion.

Appeal from District Court of Jefferson County. The appellee had judgment, in the court below for $5,000.00. The facts are sufficiently stated in the opinion.

<p>1. In declaring upon a covenant, an exception, if there be any in the body of the covenant, must be set out, and the subject-matter thereof excluded from the breaches assigned.</p> <p>2. Where the grantor in a deed covenants that he was well seized, etc., and had good right to convey, etc., and then added that he would warrant and defend the grantee, her heirs and assigns against all and every person lawfully claiming or to claim the whole or any part of the premises, “ except as against the United States,” held, that both covenants must be taken and construed together, and that the latter restricted and qualified the first.</p>

<p> Error to District Court of Jefferson County. </p> <p>The case is stated in the opinion.</p>

<p> Appeal from District Court of Boulder County. </p> <p>The case is stated in the opinion.</p>

The facts in this case are presented in the following stipulation, filed in the court below and made a part of the record. ' • “On motion to dismiss appeal and on the case, the following statement of facts is agreed upon as the facts in this case, and it is stipulated that the case be submitted to the court, a jury being waived on this statement and on the law: 1.

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

Appeal from District Court of Boulder County. The facts are stated in the opinion. The defendant in the court below had judgment.

<p>Petition for habeas corpus. The case is sufficiently stated in the opinion.</p>

This was an action commenced before a justice of the peace by Walsh, the defendant in error, against Widner, the plaintiff in error, upon two due bills payable in property. Judgment having been rendered against Widner, he appealed to the probate court, when a trial was had before a jury. A verdict was rendered in favor of Walsh, upon which judgment was entered for $150.99 damages and $413.40 costs. To reverse this judgment Widner prosecutes this writ of error.

' Suit, in equity. The defendant in error, Dod, borrowed from Morgan, one of the plaintiffs in error, two hundred and fifty dollars, giving his note therefor, payable in thirty days, Babcock, the other plaintiff in error, signing the note as surety. To indemnify Babcock, Dod gave him the possession of a mare and harness, with a bill of sale of the property.

The appellee recovered a verdict in the court below for $649.72. Motions for a new trial and in arrest were interposed and overruled, and judgment rendered upon the verdict. The essential facts are stated in the opinion.

<p>1. Whether the chancellor shall direct or refuse an issue to he tried by a jury rests wholly in his discretion, under the statute (R. S., p. 98, § 85), and error cannot be assigned upon the order in either case.</p> <p>2. Where a defendant- in a suit in chancery-desires affirmative relief, he should seek it by cross bill. Tucker v. McCoy, ante, p. 284.</p>

Debt on a replevin bond. Clark, the defendant below, pleaded, among other defenses, “that judgment in the suit of replevin was rendered on motion to quash the writ, and that the merits of the case were not determined therein, and that the goods and chattels mentioned in said bond and declaration were at the time of replevy the goods and chattels of the said Baker Silver Mining Co., the plaintiffs in replevin, and not those of Charles P. Chedsy.” To this plea the plaintiff…

This was an action of assumpsit, brought by Wilcoxen against the City of Central. The declaration consisted of the common counts for work and labor, money had and received, money paid, laid ont and expended, and money found due npon an account stated.

Action on the case for libel. The declaration, after stating the venue in the margin and the title of the court and term, was as follows : “Jacob Downing, the plaintiff in this suit, by E. L. Smith, L. B. France and Charles & Phelps, his attorneys, complains of Henry C. Brown, the defendant in this suit, who has been summoned, etc., of a plea of trespass on the case: For that whereas the said plaintiff, before and at the time of the committing by the said defendant of the…

<p>Where a defendant pleads the statute of limitations to a declaration in debt upon a specialty, a reply setting up a new promise is bad on general demurrer.</p>

Margaret Bishop, the defendant in error, filed her bill in the probate court of Clear Creek county, to acquire title under the provisions of chap'ter eighty-four of the Revised Statutes, to lots numbered eighteen, nineteen and twenty in block number forty, in the town of Georgetown.