Volume 3 — Colorado Law Reporter

<p>1. Real Estate—Sale and Possession. Where real estate was sold to be fully paid for by a given date, in which a deed for the premises was to be given and possession surrendered: Held, that the vendee, having made default in payment of the purchase money, is not entitled to possession until full payment be made in accordance with the terms of sale.</p> <p>2. Same—Vendor’s Lien—Rent. If default be made in the pavment of unsecured purchase money, in such case, and the grantor obtain a decree awarding him a vendor’s lien on the premises sold, with right of possession until payment of such purchase money: Held, that no rent accrues against the vendor for retention of the premises during such default of payment, although a deed of the premises was delivered the purchaser prior to his default.</p> <p>3. Same. The claim for such rents having been interposed as payment of purchase money, in the action for the vendor’s lien, cannot afterwards be interposed as a counter claim in an action for the recovery of the purchase money.</p>

<p>Negligence—Necessary Allegations by Plaintiff. In an action by a servant for damages caused by the incapacity of a fellow-servant, the plaintiff must allege that the injury was not caused or contributed to by his own negligence ; and also that he was not informed of the unfitness of the fellow-servant.</p>

<p>Special Bailiff—Services of Summons by. One specially designated by the marshal to serve a particular processes an officer de Jacto, and, whether sworn or not, it does not lie with the person who may be summoned by him to dispute his authority. United States Marshals have the same authority to appoint special deputies that sheriffs have under the State law.</p>

<p>Negligence—Proximate Cause—Fact for the Jury. Negligence is the want of that care and prudence which a man of ordinary intelligence would exercise under all the circumstances of the given case. The jury may consider, and it is their province to determine, from the evidence, whether a man of ordinary care and prudence would have done the acts shown by the evidence to have been done by the defendant company— whether it was negligence to allow a push car to stand beside the railroad track, unlocked or unconfined, so that evil-disposed persons might readily place it upon the track ; and whether this, if negligence, was the proximate cause of the injury received by plaintiff. By the term “proximate cause” in this connection, is meant that the injury must have been the natural and ordinary result of the cause.</p>

<p>1. Railroads—Right to Connect—What it Implies. Article XV, Sec. 4, of the Constitution of the State of Colorado, which provides that “ every railroad company shall have the right with its road to intersect connect with or cross any other railroad,” implies more than the mere privilege of uniting railroads on terms mutually acceptable. No legislation is necessary to confer this right. The constitution providing for the connecting of railroads, it follows necessarily that some use shall be made of the roads so united, which will be interpreted to be such as is usual and customary in connecting lines throughout the country. These rights may be enforced through the Courts.</p> <p>2. Same—Preliminary Injunction. In an action to enforce the rights provided for in the said constitutional provision, which have not theretofore existed, either by contract or usage, preliminary injunction will not be awarded to establish and maintain them pending the litigation, the object of such injunction being to preserve existing rights until the end of the controversy.</p>

<p> Motion for Rehearing.) </p>

<p>1. State Aid to Railroads—A Valid Claim against the Latter. Under the statutes of Missouri providing for aid by the State to the Hannibal and St. Joseph R. R., it was made the duty of the railroad company to save and keep the State harmless on account of any bonds issued in that behalf by the State; unpaid and unmatured coupons on such bonds constitute a liability, and, until these are provided for, the State is not bound to assign her lien on the road, though the company pay into the treasury the amount of the principal of such bonds.</p> <p>2. Statute — Mandatory or Directory. A statute importing a grant of power to a public officer to do a certain act, will be construed as mandatory whenever the public interests or individual rights call for the exercise of the power conferred: ergo, the act of the Missouri Legislature providing for the investment of surplus moneys in the treasury, made it the duty of the officers of the State to invest the $3,000,000 paid by the railroad on account of the aid by the State, and, in an accounting, the State will be required to answer for interest on the amount, as though invested in accordance with the terms of the act.</p>

<p> from the Lake District Court.) </p>

<p>1. Attachment—Action of Court upon may be Reviewed upon Writ of Error. The action of the Court below, either discharging, or refusing to discharge, an attachment, may be reviewed by the Supreme Court, whether such action was had before or after judgment in the case upon the merits</p> <p>2. Same—Traverse. When the affidavit of defendant in attachment traversing the grounds is defective, the attachment will be sustained. The affidavit for attachment, alleging that the defendant “is about to fraudulently conceal or remove or dispose of his property” etc., a traverse, filed six days subsequently, which denies that the defendant is about to so dispose of his property, is not good ; it fails to .deny that the defendant was about to perpetrate the fraud when the attachment was sued out.</p>

<p>1. Practice under the Code—Motion for Judgment while Demurrer Pending. Motion for judgment for want of reply to new matter in defendant’s answer should be made before demurrer is filed, especially if in term time, else the defendant will be considered as having given pa-rol license to the plaintiff after default to interpose his demurrer.</p> <p>2. Motion to strike demurrer from the files must be made upon twenty-four hours’ notice to the adverse party.</p> <p>3. Answer—Separate Defenses—Demurrer. The answer may set forth as many defenses as the defendant may have, but each defense must be stated in a separate paragraph, and numbered, and an answer not so separating distinct defenses is demurrable; but the demurrer must go to the whole answer, and not to a part thereof.</p>

<p>1. Contract. The clerk of one mercantile firm ordered from another an article, not in the line of goods dealt in by the former. The article so ordered was delivered to the clerk so ordering, with the knowledge of the senior member of the firm, and charged against the firm of which he was clerk: Held, that the purchasing firm was bound for the price of the article so ordered and delivered.</p> <p>2. Same—Unlawful Consideration. The mere fact that an article sold may be used for an unlawful purpose, will not invalidate a sale. To do this on the ground of unlawful consideration, more is required than mere knowledge on the part of the vendor that the article sold will be put to an illegal use by the vendee. Beyond such bare knowledge, it must be shown that the vendor, by the transaction, participated, or intentionally aided in furtherance of an unlawful act.</p>

<p>1. Issue—Materiality of. In the matter of the sale of wine to a merchant or dealer, an issue joined as to the correctness of a representation by the seller to the purchaser that there was a demand for the article, and that it was saleable in the country embraced in his trade, is a material issue, upon which a jury may find the facts.</p> <p>2. Same—Same—Waiver. Where the issue tendered by the answer is of a doubtful character, but is joined by the plaintiff, the latter waives the right to raise the question of the materiality of the issue—especially after verdict, upon a motion for new trial.</p> <p>3. Rescission—When Contract induced by Fraud. ‘ When the contract has been induced by fraud, it is not necessary that the party seeking to rescind it should absolutely tender what he has received under it. It is necessary that he should give notice of his intention to rescind, and that upon the trial he should be in a situation to put the other party in the situation in which he was at the time of the discovery of the fraud. That the contract is partly executed at the time of the discovery of the fraud, will not, in itself, prevent a rescission, unless the greater part of the subject matter thereof has been disposed of.</p>

<p>JQemurrer to Answer.—</p>

<p>The plaintiff Harrison is the holder of twenty bonds of the Arkansas Valley Railway Company, guaranteed by the Kansas Pacific Railway Company, on which he brought his action at law in this Court to recover judgment against the Union Pacific Railway Company, alleging that the latter company is responsible upon said bonds as successor in liability under a contract of consolidation between said two last named companies, and certain statutory provisions concerning the same. The said railway companies brought their bill in equity to enjoin the plaintiff Harrison from further prosecuting his action and from negotiating said bonds, and also asking for an accounting between Harrison and the Arkansas Valley Railway Company for interest paid by said company to Harrison as well' as for a surrender of the bonds so guaranteed, and of two Clay county bonds alleged to be held by him. The plaintiff Harrison filed a cross-bill, praying alternate relief as follows:</p> <p>First—If the Court holds that the Union Pacific Railway Company is liable directly to Harrison, that the injunction be dissolved and he be permitted to proceed with his action.</p> <p>Second—If, on the other hand, the Court holds that the company is liable only to the extent of the property received from the Kansas Pacific Railway Company, then that the trust be fastened on that property, and for a discovery as to its character, identity and present value.</p> <p>The material facts with respect to the twenty bonds sued on are as follows:</p> <p>First—In 1873 the Arkansas Valley Railway Company was a corporation existing Under the laws of Colorado, and had authority to construct a railroad commencing on the line of the Kansas Pacific Railway at Kit Carson and extending to Pueblo.</p> <p>Second—The construction of this line was regarded as of great importance to the prosperity and success of the Kansas Pacific Railway Company, to whose line it would become a feeder.</p> <p>Third—In order to accomplish this object, bonds were issued by the Arkansas Valley Railway Company, and guaranteed by the Kansas Pacific Railway Company, and it was agreed by the former company that anyone subscribing to the scheme $7,500 should receive $10,000 first mortgage bonds of the Arkansas Valley Railway Company, guaranteed by the Kansas Pacific Company, $1,000 of Clay county municipal bonds, and stock of the Arkansas Valley Railway Company $7,500, amounting to $18,500 nominal value, in consideration of a cash payment of $7,500.</p> <p>Fourth—Harrison then being a director in the Kansas Pacific Railway Company, and that company being a stockholder in the Arkansas Valley Company, subscribed to the scheme $15,-000, and accordingly became entitled to and did receive $20,-000 of the bonds guaranteed by the Kansas Pacific Company, $15,000 stock in the Arkansas Valley Railway Company, together with $2,000 Clay county bonds.</p> <p>Fifth—The railroad bonds were secured by mortgage upon the road, and when default in payment of interest had occurred, the trustees in the mortgage sold out the road and its belongings, and the proceeds were divided out among the bondholders, including Harrison, who credited on his bonds the sum he received. The allegations of the cross-bill with respect to the consolidation, in so far as it is deemed necessary to state them, are to be found in the opinion of the Court.</p> <p>The case is before the Court, on demurrer to the cross-bill of Harrison, which, it is conceded, presents all the material facts^</p>

The plaintiffs were engaged in mining coal at Salineville, near defendant’s road, for sale in the Cleveland market. They were wholly dependent on the defendant for transportation. Their complaint is that the defendant discriminated against them, and in favor of their competitors in business, in the rates charged for carrying coal from Salineville to Cleveland. The defendant traversed this allegation.

<p>Sect. 2324, R, S., must be construed in connection with Sec. 2325. Co-tenants, who are alleged to be%elinquent, even when they are not so in fact, must protect their rights as adverse claimants.</p>

The defendant was tried in the District Court upon an information charging him with having unlawfully exercised and carried on the trade and business of a retail liquor dealer without having paid the special taxes required by law to be paid. Upon the trial it appeared that he had sold a compound, designated by him as a tonic, Composed chiefly of alcohol.

Civil action to recover of defendants the amount of a judgment against the plaintiff city for damages for an injury caused by ice upon a sidewalk in front of their premises. The defendants were proprietors of premises fronting on Asylum street, in the city of Hartford. Snow and ice had accumulated, and for several days had been allowed to remain upon the sidewalk in front, rendering the walk dangerous for persons passing over it.

In 1863, or early in 1864, Geo. AV. Clary, Seymour B. Martin and Daniel Packard, agreed to enter into a partnership, under the firm name of Clary & Co., to carry on distilling grain at Monroeville, Huron county. At the time the partnership was actually formed (February 12, 1864), they purchased and received a conveyance of certain real estate at Monroeville, upon which there was a distillery.

<p>Employer and Employee—Confidential Relations—Lease by Servant. An employee cannot, while in the service of his employer, acquire any rights or become interested in any matter antagonistic to his employer’s interest. So, a party holding the relation of agent or servant to another, having by this means come into knowledge of the value of a lease held by his employer, will not be permitted to procure a renewal of such lease for his own benefit, and against the interest of his employer.</p>

to the District Court of Clark County.) The original action was brought by Nancy Marsh in the Court of Common Pleas of Clark county against William H. Crabill, executor of Nathan Marsh, deceased.

This was an application for mandamus against the Commissioner of Patents, which was ordered to be heard in the General Term in the first instance. Held: that “ The presence in a label of matter registrable as a trade-mark excludes the whole from registration.” There appears never to have been any question in the office that a monogram, such as that shown in applicant’s fac simile, constituted a registrable trade-mark.

Habeas Corpus In May, 1882, an ordinance was passed by the board of supervisors of San Francisco, to take effect in June following, to regulate .the business of laundries.

Bill in Equity The suit was brought to obtain an accounting and injunction upon an income railroad mortgage. The facts appear in the opinion.

<p> Foreclosure of Mortgage—Lien of Attorney. </p>

<p>—• Contracts—Infants—Executory Contracts—Executed Contracts— Tender back.</p>

<p> Foreclosure of Mortgage—Lien of Attorney. </p>

<p>To Recover of State for Services as Attorneys.—Relators were employed by the Governor in 1874 as attorneys, to represent the State in land grant suits, no agreement being made as to compensation. After services rendered, relators presented a claim of $5,000 to the Secretary of State, which the Secretary refused to audit and allow. The relators then presented their claim to the Legislature, and it refused to make any appropriation therefor. Relators then commenced an action against the State in this Court to recover the value of their services, and the Court held they could not recover of the State for their services, as a judgment in their favor would create a debt against the State, and violate Sec. 10, Art. VIII. of the-Constitution. It was also held that relators were entitled to their pay out of any money in the treasury belonging to the fund mentioned in Chap. 46. L. 1869, as amended by Chap. 75, Laws 1871, and that their only remedy was to present their claim to the Secretary for audit and allowance under the above enactment. Relators again presented their claim to Secretary, together with evidence of their employment by the Governor, and the Secretary again refused to .audit it, alleging no lawful authority to do so. Relators applied to this Court for mandamus to compel the Secretary to audit and allow their claim and an alternative writ was issued and served upon the Secretary, who made a return admitting that relators performed the services alleged, but denying their employment by the Governor, and denying that there was any certificate on file in his office showing such employment by the Governor or other State officer, and alleging that the services were not worth $5,000, and not more than $500. A special verdict was rendered as to the employment and value of services, and the jury found in favor of the relators.</p> <p>Held, That upon proof of the relators’ employment by the Governor, the Secretary should have audited the claim for such amount as the services were reasonably worth. The value of the services was an unliquidated claim within the decisions, 44 Wis., 458, and 51 Wis., 412, until determined by the jury, and interest cannot be allowed until after that date. The peremptory writ will go against the person in office, and the objection that such a writ cannot issue against the successor of Hans B. Warner, is overruled.</p> <p>Held, That the Secretary is bound to audit the claim for the amount of the verdict as to the value of the services.</p> <p>Ordered, That a peremptory writ of mandamus be issued, directed to the present Secretary of State, directing him to audit and allow the relators’ claim at the sum of $5,000, with interest thereon at the rate of seven per cent, per annum from April 24, 1882, and to draw his warrant upon the State Treasurer for the amount so audited in favor of the relators, to be paid out of any money in the State treasury belonging to the fund mentioned in Ch. 46, Laws 1869, as amended by Chap. 75, Laws 1871.</p>

<p> Demurrer to Amended </p>

<p>1. Indictment—False Claims against the United States. Any person who makes, or causes to be made, or present, or causes to be presented, any false claim against the United States, knowing the same to be false, or who, for the purpose of ordering another to obtain the payment of a false claim, by making or using, or causing to be made or used, any lalse bill, hccount, claim, certificate, affidavit qr deposition, knowing the same to be false, may be punished under the provisions of Sec. 5438 of the Revised Statutes of the United States.</p> <p>2. Same—Same—Statute Construed. The section above named is not limited in its operation to false claims presented by the accused on his own behalf, but applies as well to such claims presented by agents, attorneys and others, or, in other words, to every person presenting or ordering in the collection of a false claim, knowing it to be false.</p> <p>3. Indictment—Duplicity. An indictment which charges that the defendant did, and cause to be done, a particular act, is not bad for duplicity.</p>

<p>1. Suit by Non-Resident—Bond for Costs. Under the statutes of Colorado, a suit brought by a non-resident of the State, must, on motion by defendant in apt time, be dismissed, unless bond for costs was executed and filed at the time of the commencement of the suit. To execute the bond two days after the action is instituted will not avail.</p> <p>2. Same—Removal to Federal Court. Though no bond for costs is required in case of suit originally brought in the U. S. Court, yet when a cause is removed from the State Court to the Federal Court, the latter begins where the former left off; and motion, to dismiss tor want of bond for costs having been entered in the State Court, and pending at the time of removal, will be heard in the Federal Court and determined in accordance with the law applicable to the motion when made.</p>

<p>1. Mining Claims—End Lines, In the location of mining claims, “end lines” must be established as required by the statute, and where the locator fails to do this, the Courts will not fix them by implication. If the end lines be absent, or so placed as not to define the right of the locator to the exterior parts of the lode, the defect cannot be supplied.</p> <p>2. Same—Valid only within Surface. In such case the location may be valid for all that can be'found within the surface lines, but beyond those lines an essential element of the right to follow the lode is wanting, and therefore the right cannot exist.</p>

<p>1. Equity—Fraudulent Contract—No Relief to Either Party to the Fraud. The general rule is that a Court of Equity will not interfere in behalf of either party to a contract fraudulent as to both parties, either to enforce or set aside the same, or award damages for a breach thereof.</p> <p>2. Same—Same—Corporations are Bound by the Same Rule. A corporation may be guilty of fraud, and if through its board of directors it enters into a fraudulent contract, it is subject to the rule above stated.</p> <p>3. Corporations are Bound by Acts of Their Agents or Directors, in Certain Cases. A contract made by the directors of a corporation in the course and within the general scope of their powers and duties, is to be regarded as made by the corporation, although in making it the directors may have acted fraudulently. The rule is the same as that which prevails between private individuals.</p> <p>4. Rule Applied. Where a railway corporation, through its board of directors, entered into a contract for the construction of a part of its road with certain persons, some of whom were directors of the company, and, in pursuance of that contract, executed its bonds in a large sum secured by mortgage upon its. property: Held, that although the contract be held void, yet the corporation, being itself a party to the fraud, could not maintain a bill to set aside and cancel the mortgage as a cloud upon its title.</p>

<p>1. Eminent Domain.—Use of Street in a City for Railroad Purposes.—Rights of Owners of Abutting Lots.—Under Sec. 15, Art. II, of the Constitution of the State of Colorado, the owners of lots abutting on a street in a city are entitled to compensation for the use of the street for railroad purposes.</p> <p>2. Same.—Whether the title to the street is in the owners oí lots or in the city, the rule is the same. Rigney v. City of Chicago, 102 Illinois, 64, followed.</p>

<p>to Vacate Judgment.)</p>

<p>1. Executory Contract—Death of Party Thereto, Effect of. On the 5th day of March, 1880, George B. Robinson executed and delivered to plaintiffs’ assignor options for stock as follows: “For value received, D. F. Verderal may call on me for five hundred shares of the capital stock of the Robinson Consolidated Mining Company, at five dollars per share, at any time until January 1, 1881. The bearer is entitled to all dividends declared during the time. (Signed), G. B. Robinson.”</p> <p>Upon the contracts were imprinted words signifying that they were redeemable at the American Exchange National Bank, New York. Robinson died early in December, 1880. After his death, and within the time prescribed in the contracts, but before administration on the estate of Robinson, plaintiff appeared at said bank, demanded the stock, and tendered payment therefor, which was refused. After letters of administration plaintiff sue, etc.</p> <p>Held, That the agreements were merely executory, and no right to action had accrued thereon, at the time of Robinson’s death. At that time something remained to be done by both parties ; one of them having become incapable of acting, it follows that the agreement could not be executed until administrators were appointed. The administrators are not bound, no demand having been made on them within the time limited by the contract, or at any time.</p>

<p>to the Circtiit Court, District of Colorado.)</p>

<p>Attachment—Does Not Lie in Actions of Trespass. Under the statute of Colorado an attachment is not allowed in actions of trespass to mines, even though the plaintiff elect to waive the trespass and sue as for money had and received by defendant to his use. The implied promise in such case is a pure fiction of the law, invented to support the old action of assumpsit. Taking ore from a mine without the consent of the owner is a trespass in which none of the elements of a contract can be found.</p>

<p>Practice. Wright did not object to the order of the local land officers in directing testimony to be taken before a county clerk until the case had been passed upon in the local office and by the General Land Office. He having appeared, such clerk, and consenting to such proceeding, waived any irregularity.</p> <p>Filing Before Settlement. A pre-emption right is initiated by a setment upon the tract claimed, and a filing that is not based upon a preceding settlement secures no right.</p>

<p>1. Judgment—Power of Court over, after Term. Suit was brought in Colorado on a judgment rendered by the Superior Court of Cook county, Illinois, and judgment was rendered here. Subsequently the Illinois judgment, the case being removed by writ of error to the Appellate Court of that State, was reversed. Defendant sets up these facts in a petition, and moves that the judgment be vacated : Held, that such proceeding is allowable.</p> <p>2. Same—Circumstances Arising After Judgment. While it is the general rule that, as to all matters that were in issue, or which might have been contested at the time judgment was rendered, the Court has no power to vacate judgment after the expiration of the term at which it was rendered; yet as to matters arising after the judgment, or before the judgment but too late to be presented as a defense, the rule is different. Relief in such case may be had by motion to vacate or otherwise, as the circumstances may require.</p> <p>3. The Issue Growing out of the Subsequent Facts must be Tried. In this case the judgment of the Superior Court having been reversed and the case remanded for re-trial there, proceedings in this Court will be stayed until final action by the Courts of Illinois, when proper steps can be taken to afford relief, either by a reviewal of this motion, or by proceeding in equity, or otherwise, as the circumstances may require.</p>

<p> motion to vacate order setting aside interlocutory decree, and permitting defendants to file further answers.) </p>

On Exception to Master's Report.) This is a bill in equity brought to set aside and cancel certain tax deeds executed by the county of Corning, through its treasurer, to the respondent. At the hearing upon the final proofs, the Court held that the tax sale and deed complained of were void, and that the plaintiff was entitled to the relief sought, but not until he should pay or tender to respondent such legal taxes as the latter has paid upon the land in controversy.

<p>1. Attaching and Judgment Creditors—The latter cannot Prorate with former. In this State attachment writs are not made returnable to terms of Court. There is no such class of actions as mentioned in Sec. 116 of the Code of Civil Procedure, and that section is inapplicable. The proceeds of attached property cannot be distributed as provided in that section.</p>

Demurrer to Bill in Equity.) This is a demurrer to a bill in equity. The facts alleged in the bill are briefly and in substance as follows: The plaintiff bank is organized under the national banking act. The other plaintiffs are all citizens of States other than Nebraska, except James Sweet, who is a citizen of that State. The defendants are all citizens of Nebraska.

<p>in Equity to compel the defendant to do business with the plaintiff on the same terms, and in like manner, as it hath done and is wont to do with the Denver & Rio Grande Railway Company.)</p> <p>PLEADINGS.</p> <p>The original bill was filed March 31, 1882, before complainant’s road between Denver and Pueblo was finished. Complainant alleged that it was organized in the State of Colorado with authority to construct a road from Denver to Pueblo, in said State; that it was then engaged in building such road, and had, in fact, built about fifty miles thereof; that a certain other road, known as the Pueblo and Arkansas Valley Railroad, had been built from Pueblo eastward along the valley of the Arkansas river to a junction with defendants road, at the eastern boundary of the State; that defendant is a Kansas corporation, which owns and operates a road from the junction aforesaid to Kansas City, in the'State of-Missouri; that the Pueblo and Arkansas Valley road is held by defendant as lessee, and with defendant’s road it forms a continuous line from Pueblo to Kansas City; that complainant desires to connect its road with the said Pueblo and Arkansas Valley /oad at Pueblo, and to operate the same in connection with defendant’s line in the transportation of goods and passengers between Denver and Kansas City, and points intermediate, which may be reached by the several roads in connection; that, by the usage and custom of railroads in Colorado and elsewhere throughout the United States, passengers and their baggage are transported over connecting railroads on through tickets issued by the several roads so operated in connection, as convenience and safety may require; and goods are sent in carload lots, and otherwise, each company receiving the money due it for carriage from the company to which the same may be delivered in the course of transportation. The course of business in the transportation of passengers and goods is set forth in detail. Complainant also alleged that, by the constitution and laws of the State of Colorado, it was entitled to connect its road with the said Pueblo and Arkansas Valley Railroad at Pueblo, and to employ, its road in connection with defendant’s line in the carrying business between Kansas City and Denver, and other points on the said roads. But that defendant denied complainant’s right so to connect its road, and to participate in the transportation of goods and passengers.</p> <p>The prayer was similar to that of the supplemental bill, which will be given hereafter.</p> <p>A supplemental bill was filed June 13, 1882, which recited briefly the principal matters of the original bill; and alleged that complainant’s road had been completed to Pueblo, and there under an order of the District Court of Pueblo county, a connection had been made with defendant’s road, but that defendant still refused to transact any business with complainant. On that subject, and the business relations existing between defendant and the Denver and Rio Grande Railway Company, the bill and the prayer is as follows:</p> <p>“But, notwithstanding the premises, the said defendant, ever since the completion and equipment of your orator’s said railroad, hath refused and still doth refuse to exchange freights and passengers with your orator at the said connection, or to receive from your orator, or transport over its railroad, or the said Pueblo and Arkansas Valley Railroad, passengers, baggage, mails, freights or express freights transported over the railroad of your orator, or to deliver to your orator passengers, baggage, mails, freights, or express freights, transported over the said Pueblo and Arkansas Valley Railroad, destined for points on the line of your orator’s railroad, or in any manner to exchange freights or passengers or do business with your orator; but contriving and intending to injure, defraud and oppress your orator, ever since the completion of your orator’s said railroad, hath been wont to, and still is wont to deliver at the said City of Pueblo, all passengers, freights, express freights, freight cars, passenger cars, and baggage cars transported over its said railroad and destined for the said City of Denver or points beyond the same, to the Denver and Rio Grande Railway Company, a certain other corporation owning and controlling a railroad parallel to and competing with the railroad of your orator, and extending from the said City of Pueblo to the said City of Denver. And upon information and belief your orator further avers that, ever since the completion of your orator’s said railroad, the said defendant hath been and still is wont to receive from said Denver and Rio Grande Railway Company at said City of Pueblo, passengers, with their baggage, freights, express freights, mails, sleeping cars, baggage cars, loaded freight cars and other rolling stock destined for points on and beyond the railroads controlled by defendant as aforesaid, and transport the same over the railroads so controlled by defendant upon through tickets and bills of lading issued by the said Denver and Rio Grande Railway Company; an.d in like manner to receive at all points upon said Pueblo and Arkansas Valley Railroad and other roads controlled by defendant, passengers with their baggage, freights, express freights, sleeping cars and loaded freight cars, destined for the City of Colorado Springs and said City of Denver, and other points beyond the same, and transport the same over the railroads controlled by defendant to the said City of Pueblo, upon through tickets and bills of lading issued by said Denver and Rio Grande Railway Company or by said defendant, and at the City of Pueblo aforesaid, deliver the same to said Denver and Rio Grande Railway Company, to be carried to destination, each of said companies receiving from the other its due share for the transportation of all such passengers and loade'd cars and car service transported upon tickets or contracts issued by the other of said companies, monthly; and its due share for the transportation of freights not in loaded cars, daily.</p> <p>“Nevertheless the defendant refuses to extend to your orator the same privileges aforesaid.</p> <p>“And upon information and belief your orator further avers that, although divers merchants of the said City of Denver have applied to the said defendant to cause the goods of said merchants shipped and transported over the said Pueblo and Arkansas Valley Railroad to be forwarded from the said City of Pueblo by your orator’s railroad, the said defendant hath refused to comply with the said requests, and intending to injure and embarrass your orator, and to prevent passengers and freights from passing or being shipped over the road of your orator, the said defendant hath published and put in circulation divers public notices to the effect that the said defendant hath made no agreement with your orator for any interchange or through business, and that through tickets by the way of jour orator’s road will not be honored for passage on the,trains of the said, defendant, and that all shipments of freights for the city of Denver or Colorado Springs consigned to the care of your orator will be treated as Pueblo local business, and that no authority is given to any one to make contracts or issue bills of lading to Denver or Colorado Springs over your orator’s railroad from Pueblo.</p> <p>“ To the end, therefore, that the said defendant may, if it can, show why your orator should not have the relief hereby, and by your orator’s original bill aforesaid prayed, and that your orator may have the same relief against the said defendant as if the facts hereinbefore stated and charged by way of supplement had been stated in your orator’s said original bill, and that the said defendant may be required to exchange passengers and freights with your orator at the connection of your orator’s said railroad with the said Pueblo and Arkansas Valley Railroad, and to extend to your orator all the facilities for such exchange which in such case are or hereafter may be usual or customary between railroad companies operating connecting railroads, and to receive from your orator at the said point of connection all passengers, with their baggage, and all mails, freights, express freights, mail cars, express cars, sleeping cars, baggage and passenger cars, and freight cars or other rolling stock destined for points on the said Pueblo and Arkansas Valley Railroad, or the said Atchison, Topeka and Santa Fe Railroad, or beyond either terminus of either of the said railroads, and transport the same to the destination thereof or to the point of terminus nearest such destination upon the railroads operated or controlled by the defendant, upon the tickets, checks, contracts, or bills of lading issued by your orator; and at the said destination to deliver such mails, freights, express freights, and cars, to the consignee thereof or to the next carrier in the line of transport, and for its due and proportionate share of a reasonable passage and freight money (not- exceeding the rate by- it charged for the transportation of passengers or freights by it received from any other railroad company or carrier) and for reasonable car service to be paid by your orator upon all cars of the said defendant delivered to your orator, such freight moneys and car service to be fixed in such manner from time to time as the Court may direct, such share of said passage money and such car service to be accounted for and paid over by your orator from time to time, and monthly at all events, as your orator hereby offers to do; and your orator’s share of said freight moneys to be paid to your orator upon all freights on the delivery thereof by your orator; and also at the said point of connection to deliver to your orator all passengers traveling upon the said Pueblo and Arkansas Valley Railroad who may desire to proceed from the said point of connection by or over the railroad of your orator to points thereon and beyond the same, with their baggage; and also all mails, freights, express freights, mail cars, express cars, sleeping cars, baggage and passenger cars, freight cars and other rolling stock transported over the said Pueblo and Arkansas Valley Railroad, and which may be marked or directed to be shipped or transported over your orator’s railroad to points on the line thereof or beyond the same; and that said defendant be perpetually restrained and enjoined from preventing any person desiring so to do from traveling and being transported with the baggage of such persons, by your orator’s trains from the said point of connection with your orator’s railroad; and from preventing any person desiring so to do from traveling and being transported with the baggage of such persons, or shipping freights or express freights, from the said point of connection over the said Pueblo and Arkansas Valley Railroad, or the said Atchison, Topeka and Santa Fe Railroad, or other roads connecting therewith, or with either thereof, to the destination of such persons or freights, upon through tickets, contracts, or bills of lading issued by your orator; that said defendant be likewise restrained from delivering to any other carrier, railroad company, or person, any baggage, mails, freights, express freights, mail cars, express cars, passenger cars, baggage cars, sleeping cars, freight cars, or other rolling stock, checked, marked or directed to be shipped by or over your orator’s said railroad; and from preventing such baggage, mails, freights, express freights, mail cars, express cars, passenger cars, baggage cars, sleeping cars, freight cars, or other rolling stock from being delivered to your orator at the said point of connection; and from demanding or receiving for transportation over said Pueblo and Arkansas Valley Railroad, and said Atchison, Topeka and Santa Fe Railroad, or either thereof, or the branches thereof, or roads connecting therewith controlled by the defendant, for the transportation of passengers, or their baggage, mails, freights, express freights, mail cars, express cars, baggage cars, passenger cars, sleeping cars, freight cars, or other rolling stock which may have been transported over, or may be destined for your orator’s railroad any unreasonable fares or freights, or any greater fare or freight, than upon and for the transportation of passengers, baggage, mails, freights, express freights, or rolling stock received from or destined for any other railroad, for or between points reached by your orator or your orator’s said railroad, and other carriers connecting therewith; or any greater rate than is or shall be charged by said defendant for transporting such freight, passengers, baggage, express freights, and cars, if sent by any other line; or any greater rate or sum than the fair and proportionate share of the reasonable passage or freight money, fixed and determined by, or under the direction of this Honorable Court; or that your orator may have such other and different relief, or such further relief as to Your Honors may seem meet.”</p> <p>The answer denies the hill fully, and refers to a contract which is sufficiently described in the opinion of the Court.</p>

<p>Action to recover damages for personal injuries, make declaration more specific.</p>

<p>1. Savings Banks—Taxation of Stock—Iowa Statute. It seems probable that the several statutes quoted in the opinion being construed together, ought to be held to require the stockholders in savings bank to pay taxes upon their shares of stock, at least to the extent that there is no taxation upon the same as against the bank.</p> <p>2. State Statute—Province of State Court to Construe. It is the peculiar province of the Courts of the State to construe State statutes.</p> <p>3. Validity of State Law—Duty of Federal Court. The Courts of the United States are very reluctant to place upon a State statute any construction which will bring it into conflict with a statute of the United States, and, therefore, render it void, and where the question is pending before the State Courts, the Federal Courts will be inclined to await their decision.</p> <p>4. Revenue Laws—Rule of Construction. If property which, by a previous statute, is declared liable to taxation, is to be exempted under a later act, the exemption must rest upon some clear and unequivocal provision of the statute.</p>

<p>On exceptions to answer.)</p>

<p> Appeal from the Chaffee County Court.) </p>

<p>Lode Claim within a Placer. Where lode claimants fail to file adversely to a placer application which embraces their lode claim, they are entitled to only twenty-five feet of surface ground on each side of the vein.</p>

<p>Homesteads—Contest—Divorce—Six Months—Residence. Residence is largely a question of intent. A contest by a divorced wife against her absent husband’s homestead entry should be treated as between parties who were never married.</p>

<p>Public Lands—Unlawful Enclosure—Settlement. The enclosure of large tracts of public land for grazing purposes is unlawful, and a trespass. Persons desiring to become bona fide settlers may tear down the fences surrounding such tracts.</p>

<p>1. Instructions—As to Pleadings. When material allegations of the complaint are not denied, it is proper to instruct the jury that “every material allegation of the complaint not denied by the answer may be taken as true, and need not be proved by the plaintiff.”</p> <p>2. Same—Carriers—Negligence—Proof, Burden of. In order to entitle a passenger to recover against a carrier for injuries, he must prove that he received the injuries while a passenger on the vehicle of the carrier, and in consequence of the negligence of the carrier. A prima facie case, however, is made out by proof that the relations of carrier and passenger existed, that an accident occurred resulting in the injuries, and was occasioned by the failure of some portion of the machinery, appliances or means provided for the transfer of the passenger. This proof being made, a presumption of negligence on the part of the carrier arises, and the plaintiff is not bound to go further until the presumption is rebutted. It devolves upon the carrier to rebut this presumption by evidence that he exercised the greatest degree of diligence practicable under the circumstances; and it is proper to so instruct the jury.</p> <p>3. Damages, Amount of. It is exclusively the. province of the jury to estimate and assess the damages, and the amount to be allowed, in such cases, rests largely in their discretion. The Court is not warranted by law in disturbing the verdict on account of the amount of damages assessed— where no important error has occurred at the trial—unless the amount of damages allowed is so manifestly disproportionate to the injuries received, as to make it apparent that the jury were influenced by prejudice, misapprehension, or by some corrupt or improper consideration.</p>

This is a bill in equity instituted for the purgóse of establishing the right of the complainant, the Adams Express Company, to carry on the express business upon the, line of the railway of the respondent, and to enjoin the respondent from interfering with the exercise of that right. A preliminary injunction was granted.

<p>1. Findings of Fact by Jury. Will not be disturbed when there was evidence to justify them—it being the . special province of the jury to judge of and find the facts.</p> <p>2. Equity will not Aid in Fraud, or Furnish Relief to a Party Against his own Fraud—Death of Party to—Survivor, etc. When one conveys, or causes to be conveyed to another, his property for the purpose of defrauding his creditors, equity will not afford him relief. Generally the heir at law stands in no better position than his ancestor.</p> <p>3. Trustee—Purchase from Cestui Que Trust. A trustee may purchase the trust estate from his cestui que trust, but the transaction upon his part must be beyond suspicion, and the burden rests upon him to vindicate the bargain from any shadow of suspicion and show that it was perfectly fair and reasonable in every respect. If he fail to do this, the purchase cannot be maintained.</p>

<p>i. Water Rights in Colorado—Not Governed by Common Law Rules as to Riparian Proprietorship. The doctrine of priority of right to water by priority of appropriation has existed in Colorado from the earliest appropriations of water within the boundaries of the State, and not simply since 1876, when the constitution was adopted. The right, from the very nature of the case, existed prior to any legislation on the subject. The common law rule is not applicable to Colorado.</p> <p>2. Same—Protection of. The right of one who by prior appropriation has secured the beneficial use of water, is entitled to protection as well after patent, to a third party, of the land over which the natural stream flows, as when such land is part of the public domain, whether or not the water be mentioned in or expressly excepted from the grant. The act of Congress protecting in patents such rights “was rather a voluntary recognition of a pre-existing light of possession, constituting a valid claim to its continued use, than the establishment of a new one.”</p> <p>3. Same—Legislation Had in View of These Rights by Appropriation. All the legislation on the subject in Colorado, including the acts of 1861, 1862 and 1864, had in vie\y the existence and protection of rights secured by prior appropriation.</p> <p>4. Same—Right Not Dependent upon the Locus of Use. The right of water acquired by prior appropriation is not in any way dependent upon the locus of its application to the beneficial use designed. That such prior appropriation diverts the water from one stream to another, across the natural water shed, does not affect his rights. The acts of 1861 and 1862 do not conflict with this view.</p>

<p>for Writ of Prohibition.)</p>

<p>1. Railroad Company—Negligence. Negligence is the failure to use ordinary care, that is to say, such care as a person of common prudence would exercise under the circumstances, and where the complaint is, that the plaintiff has been injured b.y the negligence of a railroad company, the question for the jury is, did the railroad company fail to discharge any duty it owed to the plaintiff.</p> <p>2. Negligence—Push Cars. Where push cars are furnished by a railroad company to be used in transporting materials, and to be propelled by pushing, it is not negligence in the company to fail to supply them with brakes or other means of controlling their movement.</p> <p>3. Master and Servant—Responsibility of Master for acts of Vice-Principal. If the master, or another servant standing toward the servant injured in the relation of superior or vice-principal, orders the latter into a situation of greater danger than in the ordinary course of his duty he would have incurred, and he obeys and is thereby injured, the master is liable unless the danger is so apparent that to obey would be an act of recklessness.</p> <p>4. Same—Same—Who is a Vice-Principal. Where a master employs one servant and requires him to work under the orders of another, and gives the latter power to dismiss the former at his pleasure, the latter is a superior servant or vice-principal, and stands in the place of the master when acting in the scope of his powers.</p> <p>5. Railroad Company—Usage or Custom—Use of Push Cars to Carry Employees. Although push cars are originally furnished to be used only to carry materials, yet if the company permits their use to transport workmen from place to place for such a time and so generally as to become a custom of the road, it may be held to have authorized such use.</p>

<p>1. Equity—Lapse of time as a Defense. It is a general principle of equity that lapse of time may constitute a sufficient defense, even in the absence of any statute of limitations, and without necessary reference to any question of laches.</p> <p>2. Same—Same—Same. When the lapse of time has been so great as to afford a reasonable presumption that the witnesses are dead and the proofs lost or destroyed, a Court of equity will refuse to undertake the task of ascertaining the facts and affording a remedy, and this not because of any statutory limitation, or because of laches merely, but upon grounds of public policy and for the peace of society.</p> <p>3. The United States Bound by these Rules. Lapse of time may be a sufficient defense to a suit instituted in the name of the United States. When the Government becomes a party to a suit in its Courts it is bound by the same principles that govern individuals. When the United States voluntarily appears in a Court of justice, it at the same time voluntarily submits to the law, and places itself upon an equality with other litigants.</p>

<p>1. Habeas Corpus—Power of Federal Courts—State Criminal Statute. The Circuit Court of the United States may issue the writ of habeas corpus upon the application of any person who is imprisoned in violation of the Constitution, or of any law or treaty of the United States, and if a person be imprisoned under a State statute which is in conflict with either, that Court has power to discharge him.</p> <p>2. State Statute held not in violation of the Constitution of the United States. The statute of Missouri providing for the punishment by fine and imprisonment of any person who shall manufacture “out of any oleaginous substance, or any compounds of the same, other than that produced from unadulterated milk-; or cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream of the same,” or who shall sell or offer for sale, the same as an article of food, is not in violation of any provision of the Constitution of the United States.</p> <p>3. Patent Laws—Rights of Patentee. The sole object and purpose of the patent laws is to give to the inventor a monopoly of what he has discovered. What is granted to him is the exclusive right—not the abstract right—but the right in him to' the exclusion of everybody else. He is not authorized by the patent laws to manufacture and sell the patented article in violation of the laws of the State. His enjoyment of the right may be modified by the exigencies of the community to which he belongs, and regulated by laws which render it subservient to the general welfare if held subject to State control.</p> <p>4. Patent—In what Sense a Contract. A patent is a contract only as between the parties to it, namely, the United States on one side and the patentee on the other, and the rights conferred thereby can extend no further than the right granted to the patentee under the patent laws.</p> <p>5. Regulation of Commerce. The statute above mentioned is not a regulation of commerce among the several States.</p> <p>6. Deprivation of Liberty or Property—Fourteenth Amendment to the Constitution. The statute above named does not deprive any person of liberty or property without due process of law, within the meaning of the fourteenth amendment to the Constitution.</p> <p>7. Habeas Corpus—Jurisdiction. The Federal Courts have no jurisdiction to discharge a prisoner held under a State statute, upon the ground that such statute is in violation of the Constitution of the State, or in excess of the Dowers which the people of the State have conferred on their Legislature. If it does not violate the Federal Constitution, the question is for the State Courts.</p>

<p>1. Land Patent—Placer Mine—Lode or Vein thereon. In an action of ejectment founded upon a patent of the United States for a placer mine, it is not a sufficient answer to allege that the defendant has entered upon the premises for the purpose of developing a lode or vein of mineral in rock in place, which lode or vein was known and claimed at the time the application for the placer patent was made.</p> <p>2. Same—Same—Same—Statute Construed. Under Sec. 2333 of the Revised Statutes of the United States, a patent for a placer mining claim conveys all valuable mineral or deposits within the boundaries thereof, except such veins or lodes as have been previously discovered and located by metes and bounds, and at least partially developed, so that the vein or lode has been found within the limits of the claim.</p>

<p>1. Public Lands—Patent obtained by Fraud may be Set Aside in Equity. The United States may bring a bill in equity to set aside a patent for public land obtained by fraud, and the same principles and rules which would obtain as between individuals will apply to a case where the Government institutes such suit.</p> <p>2. Same—False Representations. One who knows a tract of land is valuable for lode mining, and is not valuable for placer mining, and falsely represents the contrary in his application for patent, and thereby defrauds and deceives the officers of the Land Department, and induces them to execute a patent, is guilty of fraud, and equity will set aside such patent.</p>

<p>1. Jurisdiction Federal Court—Citizen. To give jurisdiction to the Federal Courts on the ground of citizenship, all the plaintiffs who have an interest in the subject matter must have a different citizenship from the defendants.</p> <p>2. Same—Federal Laws. An averment that the action involves the “construction and consideration of the laws of the United States on the subject of mines and mining, and the validity and title to mining claims occurring and arising thereunder,” held ipsufficient to show a cause of action arising under the laws of the United States. The complaint must state there is a controversy between the parties as to the meaning and effect of those laws. It is not sufficient that the right to recover is based upon an act of Congress.</p>

<p>1. Note of Corporation—Who may Execute. The authority of an officer of a corporation to execute its note depends upon the by-laws, or upon the custom of the corporation. If it be the custom of a corporation to permit the treasurer to execute its promissory notes, the corporation will be bound by such note—especially if it received the benefit of the money for which it was executed.</p> <p>2. Evidence—Weight of. When there are written evidences made by the parties at the time the transactions occurred, these are entitled to more weight than contrary statements made subsequently, and after a litigation has sprung up. The jury are to judge of the evidence.</p>

<p>Suit by Stockholder. “Every bill brought by one or more stockholders in a corporation, against the corporation and other persons, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his shares have devolved on him since by operation of law; and that the suit is not a collusive one to confer on a Court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on. the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action.”</p>

<p>1. Judgment of State Court. A judgment of a State Court will not be held void in a collateral proceeding in the Federal Court, on the ground that the person confessing it had no authority to do so. In such case the remedy must be had ,in the Court rendering the judgment, or in a direct proceeding to reverse or set it aside.</p> <p>2. Injunction. One Court will not enjoin a judgment of a Court of coordinate jurisdiction, nor proceedings thereunder.</p> <p>3. Parties coming into equity will be required to do equity.</p> <p>4. Sale En Masse—Jurisdiction. The sale of a group of mining claims en masse does not make the sale void ; and if voidable, the right to avoid it can only be asserted in the proper State Court. The'Federal Courts have no jurisdiction to set aside a sale made in a Court of the State, with a view to order another sale.</p>

<p>Rescission—Necessary Averments. The rule in equity is, that it is not sufficient to charge a fraud simply, but there must also be alleged some injury as the result of such fraud. A slight injury will suffice. It is sufficient to allege that real estate was purchased upon the representation by the grantor that it was free from incumbrance, when in fact it was not. Real estate is not worth as much with as without incumbrance, and the purchaser is not bound to await an enforcement by the incumbrancer. As to the incumbrance, the purchaser may rely upon the representations of the seller, and is not bound to examine the records.</p>

<p> —On demurrer to complaint). </p>

<p>1. New Trial. Motion for, in a case tried before the District Judge, will be heard by the Circuit Judge only on the request of the former, and not as a matter of right to the unsuccessful party.</p> <p>2. Officer—Responsibility of in Executing Process. The rule is, that sheriff to whom a valid process is issued is bound to exercise ordinary skill and diligence in its execution, and in case of his neglect in this regard, is liable for any damages which the party interested may have sustained in consequence of such neglect.</p> <p>3. Same—Ordinary Diligence. In case of an attachment placed in the hands of a sheriff to levy, it is not the exercise of ordinary diligence for the sheriff to take the representation of the defendant in attachment as to the value of goods seized thereunder. And in such case, when it appears that there were in the possession of defendant goods amply sufficient to satisfy the sum named in the attachment, and the sheriff, relying upon the representation of defendant, fails to levy upon a sufficient quantity, he will be held responsible for such failure.</p> <p>4. Peremptory Instructions. The rule in Federal Courts is, that if the Court be of opinion that, upon the evidence as it is presented, a verdict one way or another would have to be set aside on motion for new trial, on the ground that it is not supported by the evidence, the Court is not bound to submit the question to the jury, but may charge the jury in accordance with the view the Court takes of the proof. The Court is not bound to go through the form of submitting a case to the jury when satisfied in advance that in case the jury find one way the verdict will be set aside.</p> <p>5. Same—Measure of Damages. In such case, when it appears that the defendant in attachment is insolvent, the measure of damages will be the difference between the amount named in the attachment, with costs, and the amount realized from sale of the goods seized—the actual damage sustained.</p>

<p>On demurrer to answer).</p>

<p> On motion to quash garnishee summons). </p>

<p>Patent for Lands—Conspiracy and Fraud in Procuring. A bill which charges a conspiracy between defendants and officers of the Land Department of the Government, with a view to perpetrate a fraud upon the Government and other persons, held good on demurrer. Quere: To what extent must injury to the Government be shown as a basis of relief? Is it enough to show that the patent was obtained in violation of law ?</p>

<p>1. Non-Resident Aliens. Under the statute of Colorado, may own, inherit and convey property, real or personal, the same as citizens and residents.</p> <p>2. Contract of Sale—Specific Performance. A contract for the purchase and sale of an interest in mining property, at a price named therein, in which contract is the following clause: “Provided, always, in the event of such failure to complete such purchase, he (the purchaser), his heirs and assigns, upon the delivery of possession of said lands and mining premises as aforesaid to the parties of the first part, their heirs and assigns, shall in no wise be held responsible for the payment of said purchase money,” Held: That upon refusal to re-deliver the property to the sellers on demand, the latter had the right to treat the contract as a sale and proceed to enforce its specific performance in equity.</p>

<p>Negligence—Must be Stated with Particularity. In a suit for damages resulting from negligence, the complaint should state the circumstances constituting the negligence. To state that a lot of tanks were stacked near by where plaintiff had to pass, and one of them fell on and injured him, is not sufficient.</p>

<p>Mining Claim—Discovery Shaft—Sale of Part. One who owns a mining claim may sell or otherwise dispose of any part thereof before patent. And the fact that the discovery shaft be included in such disposition will not affect his right to hold the residue of the claim.</p>

<p>1. Exceptions. In case of trial to the Court without jury, exception to the judgment is necessary to authorize Supreme Court to review the judgment upon the evidence.</p> <p>2. Destroyed Writing. When a written instrument has been destroyed without fraud, it is error to refuse proof of its contents.</p> <p>3. Partnership Realty, for the purpose of satisfying the firm debts, will be treated as personal estate, and pass to the surviving partner, who, if necessary, may convey the same by trust deed, under which it may be sold.</p>