Volume 3 — Colorado Court of Appeals Reports

<p>1. Amendments.</p> <p>The right to amend a complaint, even after leave is granted, is limited to an accurate and correct expression of a cause of action which theretofore had been inaccurately or insufficiently expressed.</p> <p>2. Practice — Waiver of Error.</p> <p>Taking leave to amend a complaint after a demurrer thereto has been sustained, is a waiver of the right to assign error upon the order sustaining the demurrer.</p> <p>3. Parties.</p> <p>A person with whom or in whose name a contract has been made for the benefit of another may maintain an action thereon in his own name.</p>

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

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

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

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

Apeeli.eb was a contractor for brickwork in the construction of buildings; D. R. McCurdy and one Geiger, doing business under the name of McCurdy & Company, made a contract with appellee to do the brickwork on two residences by them being built for $1,375; the work was performed and some extra work done, making the aggregate $1,660, which included $80.00 in money lent to D. R. McCurdy individually, of -which, it was claimed, $212 was left unpaid at the completion of the work…

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

On the 9th of March, 1889, John J. Reithman leased to one William L. Smith, lots 17, 18, 19 and 20 in block 281 in the city of Denver for a term of five years. Smith associated with himself as a partner one C. M. F. Bush, Jr., and erected a building upon the property known as The Metropolitan Theater Building.

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

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

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

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

<p>1. Appellate Peactice.</p> <p>Where no exceptions were taken to the instructions given and they are not embraced in tbe record, an objection that the court erred in its instructions will not .be considered.</p> <p>2. Evidence.</p> <p>Tbe various agreements between tbe parties wbicb showed tbe contract as originally entered into and as extended in its operation and conditions, and wbicb were tbe result of tbe conversations wherein tbe alleged misrepresentations, which arc the foundation of the action, were made, are admissible in evidence.</p>

This was a suit in equity brought by the defendant in error to enjoin the sale, quiet title and cancel conveyances of certain lands and water rights in Mesa county.

The facts in the case appear by stipulation of the parties, as follows: “ First. That the plaintiff is the duly elected and qualified treasurer of Larimer county, and as such is authorized to collect the taxes in and for said county. Second.

<p>A verdict rendered upon conflicting testimony will not be disturbed.</p> <p>1. Appellate Practice.</p> <p>2. Practice.</p> <p>When attachment proceedings have been instituted, and a traverse has been filed, it is not error to submit the issue to the jury for a separate finding.</p> <p>3. Appellate Practice.</p> <p>Erroneous action of the court below, which was made without objection and to which no exception was reserved, does not warrant a reversal.</p>

<p>1. Practice in Justice’s Court.</p> <p>The provisions of the statute requiring the summons issued by a justice of the peace to specify the pilace. day and hour at -which the party summoned must appear before him, are mandatory and must be strictly pursued.</p> <p>2. Process, when void.</p> <p>Service of process, requiring an appearance before a justice of the peace atan impossible date, confers no jurisdiction over the person served, and a judgment based upon such service is void.</p> <p>3. Jurisdiction, when it attaches.</p> <p>The day and hour fixed in the summons for its return is the time when the justice’s jurisdiction of the action attaches, and not when, he issues the writ.</p> <p>4. Garnishment — Scire Facias.</p> <p>A valid conditional judgment is a condition precedent to the issuance of a scire facias against a garnishee.</p> <p>5. Garnishment.</p> <p>In order to bind the creditor whose claim is sought to be appropriated by means of garnishee proceedings, it is essential that there be service of process, or its equivalent, and he will not be bound by an independent submission of his rights by his debtor.</p> <p>6. Justice’s Process, where served.</p> <p>Service of process from a justice’s court cannot, under the statute, be made beyond the county, and the acceptance of service which shows that it was made outside of the county thereby shows that it was made where the process had no legal force.</p> <p>7. Garnishment, Statutory.</p> <p>The authority to institute garnishee proceedings is entirely statutory, and unless the requirements of the statute are complied with, the proceedings cannot be sustained.</p>

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

<p>1. Pleading — Fraud.</p> <p>Fraud must be pleaded to warrant the introduction of evidence concerning it. General allegations of fraud are insufficient.</p> <p>2. Guaranty — Consideration.</p> <p>A guaranty executed subsequent to the original undertaking must rest upon a new and adequate consideration, in order to bind the guarantor.</p> <p>3. Same.</p> <p>Where the guarantor of the note in controversy was an original promisor and bound upon another note, which the payee refused to surrender without his guaranty of the note given in renewal thereof, the guaranty must be held as having been executed concurrently with the original undertaking and as a promise requiring no new consideration.</p>

<p>Sebvant’s Liability.</p> <p>A servant is liable in damages to a third person for the negligent performance of his master’s business.</p>

This was an action at law brought under the provisions of chap. 27, Geni. Stats., by plaintiff in error, widow and heir at law, to recover damages for the death of her husband, George W. Sagers, alleged to have been shot and killed by William E. Nuckolls.

This was a proceeding in the nature of a writ of quo warranto to test the title to the office of state veterinary surgeon. On the 1st day of April, A. D. 1891, Hon. John L. Routt, governor, appointed the relator, Jefferds, to the office. The appointment was confirmed by the senate on the 9th of April. He qualified by filing the required bond and taking the oath of office, and entered upon the duties.

<p>Void Sale — Redemption.</p> <p>One who was intended to be made trustee, but by mistake was not so' made, takes no title under the deed of trust and is not invested with any powers as trustee. A sale by liim is void, and does not preclude the trustor of his right to redeem.</p>

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

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

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

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

<p>Appellate Pbactice — Weight oe Evidence.</p> <p>Where there is testimony in the record to support the conclusions reached by the court below, the judgment will not be disturbed on the ground that it is not sustained by the evidence.</p>

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

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

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

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

Eap.lt in 1882 Adaline A. Lyon was the owner in fee of the southeast quarter of section 18 in township 3 in Boulder county. On the 29th day of April, 1880, while she held title she executed a trust deed running to one Laws as trustee to secure the payment of a promissory note due five years from that date. While this note was outstanding it was determined to kty out the land as a town site.

<p>Statute oe Feauds.</p> <p>A sale of chattels unaccompanied by an immediate delivery, and an actual, open and unequivocal change of possession, exclusive of the vendor, is void as against creditors.</p>

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

<p>1. Statutory Constructioh.</p> <p>In,order to bring a claim within the provisions of sec. 103, Gen. Stats., it must appear that it is an instrument in writing acknowledging an indebtedness and promising payment, which may he made either in money or personal property.</p> <p>2. Pbestoiphon op Regulabitv.</p> <p>Error will not be presumed. Unless error is shown, the presumption is in favor of the regularity of the judgment of the court below.</p> <p>3. Rights assignable.</p> <p>Almost every surviving right of action may be assigned so as to enable the assignee to maintain an action thereon in his own name.</p>

Plaintiff in error leased to the defendants certain premises and buildings for the term of two years from Nov. 23, 1889, at a monthly rental of $40.00 payable in advance. Defendants were mechanics making and repairing wagons, blacksmithing, etc. A written lease was executed in the ordinary form, and defendants went into possession.

An application for a mandamus brought by the appellant as petitioner against The Farmers’ Highline Canal & Reservoir Company, as respondent, to compel it to sell and deliver to the petitioner seventy inches of water from the ditch, to be by him used in irrigating an eighty-acre tract of land occupied as a farm. It appears that petitioner commenced to occupy the land in 1872.

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

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

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

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

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

<p>1. Practice — Special Ersroiií&s.</p> <p>Special findings in a verdict control general findings, and judgment should be entered in conformity with the facts thus established.</p> <p>2. Appellate Practica</p> <p>A judgment may be modified in the court and affirmed as modified.</p> <p>3. Costs.</p> <p>Where the judgment may be modified and affirmed, the costs of the appeal may be taxed against the respective parties equally.</p>

In January, 1888, John E. Godding, plaintiff in error, brought suit against James W. Decker on two promissory notes. The first was dated June 28, 1887, for $700, due sixty days after date at the bank of Lamar, and signed by Decker, Descent and Godding. According to the pleadings and proof this note was substituted for one dated March 8, 1887, due three months after date, for the same sum signed by Decker and Descent.

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

A suit in chancery was brought by appellees to be declared to be the owners of one eighth of the water carried by an irrigating ditch known as the “ The Hoehne Ditch,” and in addition to one eighth, of an indefinite quantity, described in the complaint to he “ the owner of the right to use for irrigating, (certain lands described amounting to forty acres or more,) that portion of said water conveyed by said ditch necessary for the proper irrigation for agricultural purposes…

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

TSrror to the County Court of Pitkin County. The action was brought by the appellant, plaintiff, against the defendant to recover $100, a- penalty prescribed by section 3, chap. 95 of General Laws as amended by an act of April 2, 1887, entitled “An Act to amend section 29 of chapter XCV. of the General Statutes of the state of Colorado, entitled ‘ Roads and Highways,’ and to repeal sections 30, 31, 32 and 33 thereof, and for other purposes.” By such amendatory act a new…

jError to the District Court of Arapahoe County. Defendants in error, John Mattler, W. L. Beardsley, William W. Watson and W. C. Mead, partners doing business as real estate agents in the city of Denver, made the following memorandum or contract in writing, and delivered it to the plaintiff in error: “ Denver, Colo., Oct. 28,188 . “ Received of Darius R. Benjamin the sum of two hundred dollars as part payment for the following described real estate, to-wit: Lots one (1), and…

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

Flrror to the District Court of Boulder County. In January, 1887, John Leonard died a bachelor and intestate in the county of Boulder at an advanced age, probably born in 1812, consequently, was at the time of his death about seventy-five years old. He left property estimated at from $125,000 to $150,000.

<p>1. Eminent Domain — Corporate Property.</p> <p>Tlie statute contemplates the institution of condemnation proceedings by one corporation against another, as well as by a corporation of a public character against the property of a private individual.</p> <p>2. Constitutional Law.</p> <p>The provision in the eminent domain act for preliminary possession and use of the property pending condemnation proceedings is not unconstitutional.</p> <p>3. Statutory Construction.</p> <p>The provisions of section PDfi, Gen. Stats., that no tract of improved or occupied land shall, without the written consent of the owner, be subjected to the burden of two or more irrigating ditches, when, etc., are for the benefit of the landowner, and cannot be invoked by rival ditch companies.</p> <p>4. Decree, Form op.</p> <p>The decree or rule entered in this case is in accordance with the spirit and letter of the statute.</p>

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

<p>1. Public land — Town-site.</p> <p>Tlie title vested in the county judge by patent under § 2381 U. S. Rev. Stats., is only in trust for tbe occupants of the land. Occupancy of some sort must be shown as a condition precedent to obtain a conveyance.</p> <p>2. Real actions — Lien bob taxes.</p> <p>Where the plaintiff prevails in an action to recover land held by the defendant under a tax deed, the taxes paid thereon by the defendant constitute a lien upon tile premises, and it is error to adjudge the property to the plaintiff without decreeing the payment of the same with statutory interest.</p>

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

<p>1. Rescission — Evidence.</p> <p>When a rescission of a prospecting partnership contract is relied upon, the circumstances must show an absolute abandonment of the contract as to future enterprises. Proof of negotiations for an abandonment is insufficient to establish a rescission of the agreement.</p> <p>2. PABTNEIÍSIIIP.</p> <p>The existence of a partnership does not depend upon the fact that each partner has in all things complied with his agreement. If the contract has been made, property and labor contributed, and the part- ' nership business commenced and carried on, there is a partnership.</p> <p>3. Mining Pabtnebs — Agency.</p> <p>A contract to engage in the business of prospecting for and developing mining property for the joint use of all, is in the nature of a partnership agreement, and under such an agreement, each party thereto becomes the agent of the other in prosecuting the joint adventure.</p> <p>4. Appellate Pbactice — Insufficiency of Evidence.</p> <p>Where the verdict is clearly and manifestly against the evidence, it will be set aside in furtherance of justice.</p> <p>5. Same.</p> <p>Where the evidence does not tend to support the finding, the judgment will be set aside as being against the evidence.</p>

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

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

<p>1. Mechanics’ Lien.</p> <p>It seems that since the right to a lien is dependent upon a contract, a subcontractor can acquire no other or greater rights than flow to him therefrom, and that it must be adjudged that his rights are to be taken as limited and controlled by the terms of the agreement between the original parties.</p> <p>2. Pleading.</p> <p>The complaint of a subcontractor to foreclose a mechanic’s lien which fails to state that, at the time the plaintiff furnished the materials, no payments had been made by the owner to the contractor, but which contains averments implying that the owner is indebted to the contractor, is not subject to demurrer for a failure to state facts sufficient to constitute a cause of action.</p>

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

■ Prior to the first of November, 1890, appellants as partners under the firm name of Hunter & West, were doing a banking business at Greeley. About that date the business was closed, and they were succeeded by the Greeley National Bank. On the 25th of August, 1890, appellee deposited with the firm $225; on the third day of September made another deposit of $175; on the 30th day of September another deposit of $125; on October 6th another deposit of $175.

Appellant was the occupant of 160 acres of land, having a pre-emption right upon it. The land was adjoining, and partially between tracts of land belonging to the appellee. Appellee, being desirous of obtaining the land, entered into negotiations with the appellant, which resulted in the conveyance of the land. The possession of the property was delivered to appellee.

<p>1. Conversion.</p> <p>The eviction from premises of parties who are lawfully engaged in removing the tenant’s property, the locking up of the premises, keeping them locked, and preventing the removal of the chattels is a conversion thereof, and a recovery may be had for their value.</p> <p>2. Appellate Practice.</p> <p>The finding as to the value of property converted, Upon conflicting evidence, will not be disturbed.</p>

The following amended complaint was filed in this cause: “ First. That at all times hereinafter mentioned the said plaintiffs were and still are copartners under the firm name and style of Hayden & Dickinson. “ Second.

<p> Appeal from the County Court of JEl Paso County. </p>

<p>1. Pbincipal and Agent.</p> <p>The statements and representations of an agent made in reference to an act which he is authorized to perform, and while engaged in its performance, are binding upon the principal. They are part of the res gestee.</p> <p>2. Pbesumptions.</p> <p>The statements contained in letters written or indorsements and memoranda made upon freight or expense bill, by agents of railroad company, in the course of search for goods lost in transit, and having reference to the search, are the statements of the company, and it is bound by all the inferences which legitimately result therefrom.</p> <p>3. Evidence — Pbesumption.</p> <p>It being in the power of a railroad company to ascertain whether or not it had received goods for shipment, it is presumed to have ascertained that fact, and its failure to deny — except by way of answer to the complaint — that the goods were so delivered, is evidence of some weight that it had received them.</p> <p>4. Pebsumptioit.</p> <p>A lot of goods shipped together and embraced in the same way-bill, part of which were delivered to consignee, and part not, raises the presumption that the entire lot was received by the company.</p>

<p>1. Agejtct.</p> <p>A person who is employed to manage a hotel is a general agent within the scope of the employment, and his principal is bound by his transactions properly pertaining to that business, but not by his acts beyond these limits.</p> <p>2. Same.</p> <p>The manager of a hotel, to incur any responsibility on behalf of his principal for the removal of old apparatus and fixtures, and replacing them with new, must have special authority from him for that purpose.</p> <p>a. Instructions.</p> <p>Instructions should in all cases be based upon the evidence, and an instruction that impliedly assumes the existence of evidence that was not given, is erroneous.</p> <p>4. Same.</p> <p>An instruction couched in such general and indefinite terms that the jury might easily draw an unwarranted inference from an admitted fact, is vicious.</p>

An action in replevin to recover the possession of office furniture, pictures, library, etc., being the furniture, appliances, library in a doctor’s office. It appears that G. K. Hassenplug was a doctor, a specialist in some diseases, had been in the practice of his profession for several years in the city of Denver, having his office in the same building during the entire time; that Frank A. Hassenplug was the brother and assistant, having his office with him.

<p>1. Stattjtoby Construction.</p> <p>A penal statute must be strictly construed.</p> <p>2. Same.</p> <p>Tlie intention of tlie legislature in enacting, sec. 2537 Gen. Stats., was to punisb any person who, knowingly and intentionally, caused a pauper to be taken from tlie county.where domiciled and transported to another, with the knowledge and intention of relieving the county of domicile from a charge of support, and making the person a charge upon the other county.</p> <p>3. Same.</p> <p>In order to warrant a conviction under this statute it must appear beyond controversy that the person was a pauper within the legal definition of the word, had legal domicile in the county from which the removal was made, and not in the county to which he was taken or sent, and a knowledge of the facts by the person charged from which the intention, if not expressed, could legally be implied.</p> <p>4. Intention.</p> <p>In cases under this statute intent is an element of the offense.</p>

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

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

<p> Appeal from, the District Qourt of Arapahoe Qounty. </p>

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

<p>1. Statute of Frauds.</p> <p>A sale of chattels, not accompanied by an immediate delivery, and followed by an actual and continued change of possession is fraudulent and void, as against creditors of the vendor.</p> <p>2. Same — Who are Creditors.</p> <p>By the statute the term “ creditors ” includes all persons who are creditors of the vendor or assignor at any time whilst such goods and chattels remain in his possession or control.</p> <p>8. Same — Subsequent Sales.</p> <p>It is entirely immaterial how many subsequent sales were made or in what manner, so long as the possession of the original vendor remained- undisturbed. All such sales are void as to his creditors.</p>

<p> Error to the Eistrict Court of San Juan County. </p>

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

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

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

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

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

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

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

<p>Appellate Practice.</p> <p>Where there is evidence to support the verdict, judgment thereon will not be disturbed.</p>

<p>1. Municipal Corporations.</p> <p>A city, by virtue of the powers granted to it, is bound to keep the avenues of travel within its jurisdiction in a reasonably safe condition for the ordinary mode of use to which they are subjected, and a corresponding liability rests upon the corporation to respond in damages to those injured by the neglect to perform that duty.</p> <p>2. Use op Streets.</p> <p>When a populous city grades and prepares its streets for use and throws them open to the public, it invites the public to use their whole width, and it cannot, after an injury is sustained in consequence of an obstruction in a portion of the street, say that part of such street was intended to be used and part not.</p> <p>3. Negligence per se.</p> <p>Knowingly suffering an obstruction, over which a wagon or carriage could not safely pass, to remain in a public and traveled street, is negligence per se on part of a city.</p> <p>4. Contributory Negligence.</p> <p>When contributory negligence is relied ux>on as a defense to an action for damages, that fact must be found from the evidence and circumstances indexiendent of the mere fact that the xilaintiff was at the time of the injury engaged in an illegal act.</p>

JError to the District Court of La Plata County. In August, 1885, plaintiff instituted suit against defendants, A. C. Meyers, George E. West and Frank H. West, in replevin, alleging that in October, 1880, he was the owner of 450 head of cattle and 16 head of horses, and that in November, 1880, the defendants appropriated the property and converted the same to their own use, praying judgment for $15,000.

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

<p>1. Broker’s Commission.</p> <p>Before a broker can be said to have earned his commission he must produce a purchaser who is ready, willing and able to purchase the property upon the terms and at the price designated by the principal, and he must have been the efficient agent or procuring cause of the sale.</p> <p>2. Practice.</p> <p>A verdict which is so clearly against an overwhelming weight of testimony that, if not willfully wrong, it could have resulted only from misapprehension or mistake of the law, should be set aside.</p>

<p>Appellate Phactice.</p> <p>Wlien tlie testimony is conflicting and the judgment is not manifestly against the weight of the evidence, it will not be disturbed.</p>

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

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

<p>1. Practice.</p> <p>When an administrator asserts a claim which in anywise tends to diminish the estate, he should procure the appointment of a representative of his trust.</p> <p>2. Equity — Deed—Mortgage.</p> <p>The power of a court of equity to hold as a mortgage an instrument which is in form an absolute deed, is well settled.</p> <p>3. Same — Quantum op Proof.</p> <p>The rule is inflexible that, in order to take the case out of the statute of frauds, it is essential that the contract should be established by clear, definite and conclusive proofs.</p> <p>4. Witnesses.</p> <p>Generally, a party to an action is incompetent to testify of his own motion, or in his own behalf, when any person appears and defends as heir.</p> <p>5. Waiver, None by Infant.</p> <p>In a suit where a minor is concerned, nothing can be admitted against his interest. His representative should insist that no step be taken which shall be in any manner legitimately the subject of objection.</p> <p>6. Practice.</p> <p>Where the guardian hesitates or fails in the performance of his duty, the court will defend the minor’s rights. Appellate courts are not relieved from the general duty laid on all other tribunals to conserve the interests of minors submitted to their consideration.</p> <p>T. Evidence.</p> <p>A creditor of an estate who has intervened in an action by the administrator against the heir, and who is interested in the success of the latter, has a right to object to testimony by the plaintiff in his own behalf.</p>

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

^Appeal from the District Court of Weld County. Appellant was the owner of, or in the legal possession of, 400 acres of land in Weld county. In July, 1886, he filed the necessary papers to secure his right, and subsequently excavated and constructed a ditch from Lone Tree creek to irrigate his land.

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

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

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

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

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

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

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

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

<p>X. Practice — Counterclaim.</p> <p>A defendant in an action in 'which a writ of attachment has been issued and levied cannot set up a counterclaim for damages sustained by reason of an excessive levy under the writ.</p> <p>2. Pleading — Payment.</p> <p>Where the facts constituting the cause of actiou for goods sold and delivered are stated in the complaint, together with an allegation of nonpayment, proof of payment is inadmissible unless it be specially pleaded. A denial will not suffice.</p> <p>3. Practice — Judgment on the Pleadings.</p> <p>Where the facts constituting a cause of action are specially admitted by the answer, a judgment may be entered against the defendant on the pleadings, notwithstanding the complaint contains an allegation of nonpayment and the answer denies it.</p>

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

<p>1. Water Rights.</p> <p>The right to the use of water for irrigating purposes is a right of property, the subject of ownership like any other property.</p> <p>2. Same.</p> <p>The true test of the appropriation of water is the successful application thereof to the beneficial use designed.</p> <p>3. Damages.</p> <p>A judgment for damages for the diversion of water can only be based upon the ownership or right of property in the water, and the wrongful invasion of that right.</p>

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

<p>1. Statute oe Eeauds.</p> <p>Every sale made by a vendor of chattels in his possession, or under his control, unless the same be accompanied by an immediate delivery and followed by an actual and continued change of possession of the things sold, is conclusively presumed to be fraudulent and void.</p> <p>2. Same.</p> <p>The vendee must take actual possession, and the possession must be open, notorious and unequivocal, so as tp apprise the community, or those accustomed to deal with the party that the goods have changed hands and that the title has passed.</p> <p>3. Same.</p> <p>When the subject of the sale does not reasonably admit of an actual delivery, it is sufficient if the vendee assume actual control and dominion of the property so as to reasonably indicate to all concerned the change of ownership.</p> <p>4. Evidence.</p> <p>Where the issue is as to whether an actual change of possession of the goods took place, the books of the warehouse in which they were stored at and after the time of the sale are admissible to show whether or not there has been such a change.</p>

<p>1. Costs.</p> <p>Tlie right to reimbursement for costs expended is statutory. In the absence of statute it does not exist.</p> <p>2. Costs in Cbihinal Cases.</p> <p>Costs of the prosecution are recoverable of a defendant upon conviction of a crime.</p> <p>3. Same.</p> <p>The county is liable for the costs of prosecution in a criminal case where the defendant is acquitted.</p> <p>4. Same.</p> <p>In case of the conviction of a defendant and of his inability to pay the costs, the county is liable for the costs of prosecution.</p> <p>5. Same.</p> <p>There is no liability against the county on account of services rendered by officers or witnesses on behalf of a defendant in a criminal case, unless he has availed himself of the provisions of the statute by obtaining an order of the court or judge that such witnesses be subpoenaed.</p>

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

<p>1. Pleading.</p> <p>A complaint in an action against a firm, wbicb alleges a distinct and independent indebtedness against each member thereof, does not state a cause of action.</p> <p>2. Pleading — Joindbb. ob Causes ob Action.</p> <p>Several causes of action which do not affect the parties in the same character and capacity may not be united in the same complaint.</p>

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

<p>Appellate Pbactice.</p> <p>A decree which is supported by evidence will not be disturbed on the ground of insufficiency of the evidence.</p>

Defendant in error as plaintiff brought suit before a justice of the peace to recover money alleged to be due upon the assessment of ditch stock for money expended in keeping in repair the ditch of plaintiff. The defendants below were sued as the owners of 90 xr shares of the capital stock of the company, and it claimed $75.00 due as the amount properly chargeable to the stock.

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

<p> Appeal from the County Court of Pueblo County. </p>

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

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

<p>1. Practice.</p> <p>When the testimony is conflicting, the finding of questions of fact by tlie court will not be disturbed on review, but will be taken as . found.</p> <p>2. Receipts.</p> <p>A receipt, even when it purports to be in full, is at all times liable to explanation and impeachment.</p>

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

<p> JSrror to the County Court of Phillips County. </p>

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

<p>Negligence.</p> <p>Negligence is -the basis of a sleeping car company’s liability to a passenger for tlie loss of wearing apparel. When its negligence is not shown, a judgment against it for such damages cannot be sustained. But when a loss is shown without' negligence on the part of the passenger, the burden is then cast upon the company to show due care upon its part.</p>

<p>1. Canal Companies — Succession.</p> <p>A canal company may, while prosecuting its work of construction with proper diligence, sell and dispose of such rights as it may have, and the grantee may become a legal successor, but in order to become such it must succeed to the charter rights of the grantor, prosecute the enterprise under the same franchise and in accordance with the statement and certificate of its incorporation.</p> <p>2. Water Rigiits — Appropriation.</p> <p>To constitute a legal appropriation the water must be applied within a reasonable time to some beneficial use; that is, the diversion ripens into a valid appropriation only when the water is utilized by the consumer.</p> <p>8. Abandonment.</p> <p>Upon abandonment of the construction of a proposed canal without intention of resuming, all incipient rights lapse and revert to the public, and are not thereafter capable of being- sold or transferred.</p> <p>4. Appropriation — Relation.</p> <p>Although the appropriation is not deemed complete until the actual diversion or use of the water, still if such work be prosecuted with reasonable diligence the right relates to the time when the first step was taken to secure it. Wkat is reasonable diligence is a question of fact depending upon the circumstances of eacli particular case.</p>

<p>1. Libel.</p> <p>The publication of -words concerning merchants and traders which impute to them insolvency, financial difficulties or embarrassment, dishonesty or fraud, are actionable in themselves, without the necessity of alleging or proving special damages.</p> <p>2. Same.</p> <p>The publication of the words “Business Changes — McKenzie Lumber Company, Denver, Attached,” is libelous per se.</p> <p>3. Pleading — Innuendo.</p> <p>When the words published explain themselves, an innuendo is unnecessary.</p>

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

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

<p>1. Libel — Innuendo.</p> <p>The office of an innuendo in pleading a libel is to explain the defendant’s meaning in the language employed, and to show how it relates to the plaintiff. When the meaning of the language is plain no innuendo is required.</p> <p>2. Same.</p> <p>Where the meaning of the language is not apparent, and an explanation is necessary, the innuendo is used to express the plaintiff’s construction of the words, but it cannot enlarge or vary their sense, and it is of no avail unless the words to which it is applied have a violent presumption of the innuendo.</p> <p>3. Libel defined.</p> <p>A libelous publication is one which charges or imputes to any person that which renders him liable to punishment; or which is calculated to make him the subject of hatred, odium, contempt or ridicule.</p> <p>4. Direct Charges, not essential.</p> <p>A publication, the obvious tendency of which, taken as a whole, is to fasten suspicion of guilt of a felony upon the plaintiff, is actionable, although the article contains no direct charge.</p> <p>5. Justification. .</p> <p>In an action for libel, the publication in a newspaper of rumors is not justified by the fact that such rumors existed.</p>

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