Volume 32 — Colorado Reports

<p>Attorneys at Law — Disbarment.</p> <p>For collecting money for his client and failing to turn it over, and for receiving money from a client to redeem land from tax sale and failing to redeem the same or to return the money, respondent’s name is stricken from the roll of attorneys of this state.</p>

<p>1. Constitutional Law — Jury Trial — Gambling Devices.</p> <p>A proceeding under section 1343 Mills’ Ann. Stats., providing for the seizure and destruction of gambling devices, is a proceeding in rem, and the constitutional right of trial by jury does not apply to such proceeding, and said statute is not in violation of section 25 article 2 of the constitution providing that no person shall be deprived of life, liberty or property without due process of law in the respect that no provision is made for jury trial.</p> <p>2. Gambling Devices — Chattel Mortgages.</p> <p>The destruction of gambling devices under section 1343 Mills’ Ann. Stats., on which there was a chattel mortgage, is not illegal as to the mortgagee where the devices were left in the possession of the mortgagor to be used as he saw fit, the mort'gagee knowing that the only reasonable use they could be put to was for gambling purposes, although the mortgagee did not actually give his consent to or know of such use by the mortgagor.</p>

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

<p>1. Political Parties — State • Central Committees — State Conventions — Party Name — Jurisdiction.</p> <p>Under the act, Session Laws 1901, page 169, the state central committee of a political party, or the state convention while in session, has exclusive jurisdiction to determine all controversies between factions of the same party as to which is the regular organization and entitled to the party name and to make and file nominations for office under the party name within any district county or city of the state.</p> <p>2. Same — Constitutional Law.</p> <p>The act, Session Laws 1901, page 169, conferring upon the state central committees of political parties jurisdiction to hear and determine factional controversies as to the regularity of the organization of the party within any district, county or city of the state, is not in violation of section 11 article 6 of the constitution on the grounds that it divests the district courts of jurisdiction in such causes and confers it upon 'another tribunal, as the district courts have no such jurisdiction in the absence of a statute conferring it.</p> <p>3. Political Parties — State Committees — Jurisdiction—Factional Controversies.</p> <p>Where there exists a state central committee of a political party, factional disputes of subordinate divisions of the party must be referred to such committee, and the courts have no jurisdiction in such factional and internal disputes between members of the same party although the committee may not have passed thereon.</p> <p>4. Same — Filing Roll of Membership of Committee — Estoppel.</p> <p>The filing of a roll of members of the state central committee of a political party with the secretary of state as required by section 2 of the act, Session Laws 1901, page 169, is not a condition precedent to the exercise by the committee of the power to determine factional'disputes in subordinate divisions of the party, and in the case at bar it appearing that the faction now challenging the power of the committee upon that ground has heretofore invoked the jurisdiction of the -committee to act upon the controversy, it is estopped to deny the committee’s authority.</p> <p>5. Political Parties — Factional Disputes — Jurisdiction—Prohibition.</p> <p>Where a district" court is proceeding without jurisdiction to determine a factional dispute between members of the same political party, and the parties objecting to such proceeding have no speedy and adequate remedy at law, on petition to the supreme court a writ of prohibition will issue to prevent the court from taking any further' action in the matter except to dismiss the proceedings.</p>

<p> Error to the District Court of the City and County of Denver. </p> <p> Motion to Dismiss Writ of Error: </p>

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

<p>1. Appellate Practice — Mandate—Directing Judgment — Law of Case.</p> <p>Where a cause was appealed to the supreme court and reversed, and the trial court was directed to enter a certain, decree, and did enter .a decree in' accordance with the mandate of the supreme court, the parties cannot go behind the mandate to question such decree.</p> <p>2. Mineral ■ Lands — Conveyances—Surface and Mineral — Separate Estates.</p> <p>In mineral lands the surface and the mineral may be severed and conveyed as separate estates; but, until there has been a severance, ownership of the surface carries with it ownership of the mineral beneath the surface.</p> <p>3. Same — Contracts—Conveyances.</p> <p>A contract to convey “the surface ground” included within a conflict between two mining claims, saving and excepting from such conveyance a certain named vein, is a contract to convey all the mineral beneath the surface of the conflict except the one vein named in the exception, and in an action to enforce specific performance of such contract, a decree requiring the grantor to convey the land in conflict, including all the minerals except the vein named in the contract, will be sustained.</p>

<p>1. Mining Claims — Discovery of Mineral — Knowledge of Former Discovery.</p> <p>Where a locator relocated an abandoned mining claim, sinking his discovery shaft and posting notices several hundred feet from the discovery shaft of the abandoned location and filed his certificate designating his discovery as in the discovery shaft sunk by him, and he failed to make a discovery of mineral in the shaft sunk by him, the mere fact that he knew of the existence of a vein on the claim that had been discovered in the discovery shaft of the abandoned claim would not make his location valid.</p> <p>2. Instructions — Evidence.</p> <p>It is not error to refuse an instruction requested where there is no evidence or offer of evidence that calls for it.</p> <p>3. Mining Claims — Discovery Shafts — State Statutes — Adverse Suits.</p> <p>In a suit to determine the right to a mining claim as between adverse claimants where plaintiffs in their complaint alleged that the provisions of the state, as well as the federal statutes, had been complied with in their location, and where an instruction as applicable to both locations was given at plaintiffs’ request, to the effect, that a valid location of a lode mining claim cannot be made unless the provisions of section 3152.Mills’ Ann. Stats, in reference to the sinking of a discovery shaft and posting notice be complied with, plaintiffs cannot afterwards be heard to say that they may disregard the provisions of the state statute, which they themselves have invoked, and base their location on a discovery elsewhere than in their discovery shaft.</p> <p>4. Mining Claims — Previous -Discoveries.</p> <p>A locator of a mining claim may avail himself of a previous discovery of mineral within the limits of his location without making a valid new discovery for himself, provided he adopts the previous discovery as his own and bases his location thereon; but where his location is based on an alleged new discovery in a shaft sunk by him, mere knowledge of the previous discovery will not cure the failure to make a discovery in his discovery shaft.</p> <p>5. Mining Claims — Underground Discovery — Evidence—Harmless Error.</p> <p>In a suit to determine the right to the possession of a mining claim as between adverse claimants, where plaintiffs alleged in their complaint a valid discovery of mineral in their discovery shaft on which their location was based, and it appeared that no valid discovery had been made in their discovery shaft, it was not prejudicial error to refuse to permit plaintiffs to prove an underground discovery made through an adjoining claim, where such underground discovery was not followed up by the filing of an amended location certificate, and was made after defendant had made a valid discovery and perfected a location thereon.</p> <p>6. Adverse Suits — Juries—Viewing Premises.</p> <p>In an adverse suit where plaintiff’s evidence failed to make a case for submission to the jury, it- was not error to refuse to send the jury to view the premises upon plaintiff’s request.</p> <p>7. Mining Claims — Second Discovery — Posting Notice.</p> <p>Where a locator of a mining claim made a second and valid discovery of mineral and amended his location certificate so as to base his location on said second discovery, it was not necessary to post notice at the point of second discovery.</p>

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

<p>1. Practice in Criminal Cases — Juries—Wrongfully Excusing Jurors — Harmless Error.</p> <p>In a criminal prosecution the fact that the court excused a juror for cause upon its own motion and examination after both parties had passed the juror for cause, is not reversible error where it does not appear that by reason of the action of the-court the defendant did not have a fair and impartial trial by a competent jury, nor that the district attorney exhausted all his. challenges, nor that the panel was thereby depleted.</p> <p>2. Evidence — Hearsay—Searching for Concealed Weapons.</p> <p>In a prosecution of defendant for making an assault upon an officer, evidence that the officer had been told that defendant had a pistol was admissible to show the officer’s authority to-search defendant for concealed weapons.</p> <p>3. Instructions — Malice—Intention—Inference.</p> <p>Although an instruction, standing alone, may appear to imply that the inference of malice and intention to kill to be drawn from certain facts proven is one of law, yet if other instructions given are sufficient to remove such implication, and clearly tell the jury that such inference is one of fact and not of law, the objectionable instruction is not reversible error.</p> <p>4. Appellate Practice — Instructions—Objections—Exceptions.</p> <p>An assignment -of error based on an alleged erroneous instruction will not be considered where no objection was made nor exception taken to the giving of the instruction in the lower court.</p> <p>5. Practice in Criminal Cases — Motive.</p> <p>It is not indispensable to a conviction that a motive for the crime appear.</p> <p>6. Practice in Criminal Cases — Assault on Officer — Instructions.</p> <p>In a prosecution for assault with intent to murder, where the assault was made upon an officer while trying to arrest defendant, an instruction that, “if one merely announces his intention of arresting a person, such person is not justified in shooting him, although the former’s official character is not known to the latter, and although, in fact, the arrest would be unwarrantable,” was not erroneous.</p> <p>7. Instructions — Drunkenness—Evidence.</p> <p>In a prosecution for an assault upon an officer while attempting to arrest defendant, where the evidence shows that defendant had visited a saloon and had been drinking, an instruction upon the subject of drunkenness was not improper.</p> <p>8. Carrying Concealed Weapons — Authority of Officer to Search Without Warrant — Constitutionality of Law.</p> <p>Section 1364, 3 Mills’ Ann. Stats., makes it the duty of police officers to search all persons suspected of carrying concealed weapons in violation of law, and justifies such search upon information without warrant, and in a prosecution of a defendant for assaulting an officer, defendant cannot question the constitutionality of said statute.</p> <p>8. Assault to Murder — Instructions—Provocation—Manslaughter.</p> <p>In a prosecution for assault with intent to murder, made upon an officer while attempting to arrest defendant, evidence that the officer caught defendant by the arm and told him in a very rude and insolent manner to get out of a hack in which defendant was riding, if true, was not sufficient provocation to reduce an intentional killing to manslaughter, and the court was not required to submit instructions upon that line of defense.</p>

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

<p>1. Instructions — Statement of Fact.</p> <p>An instruction containing a statement of fact is not prejudicial where the statement is from the uncontradicted testimony of appellant’s witnesses.</p> <p>2. Instructions — Settlement—Assignment for Benefit of Creditors.</p> <p>Plaintiff’s property was in the hands of an assignee for the benefit of his creditors. Defendant, without authority and without the knowledge of the assignee, took from plaintiff’s saw-mill a lot of lumber, and upon the representation of defendant’s agents as to the amount of lumber taken, the assignee accepted payment therefor. Afterwards plaintiff’s property was reconveyed to him by the assignee and he brought suit against defendant for lumber taken, claiming that defendant misrepresented the amount taken and had not paid the assignee for all the lumber taken. Held, that an instruction to the effect that if defendant took more lumber than its agents reported and more than the assignee settled for, plaintiff could recover the value of lumber not paid for, was proper, and an instruction was properly refused which told the jufy that if the assignee had charge of the lumber and settled with defendant, plaintiff could not recover.</p> <p>3. Instructions — Sales—Delivery.</p> <p>In an action against a railroad company for the price of piling Where the evidence was that the piling was to be considered delivered “.when taken by defendant, accepted and used,” an instruction that defendant, was-not liable for the piling until it was “accepted for use,” was not such a departure from the evidence as was calculated to mislead the jury or convince them that merely placing the piling on defendant’s right of way was such delivery as would render defendant liable therefor.</p> <p>4. Interest — Accounts.</p> <p>In an action upon an account for goods sold and delivered, plaintiff is entitled to interest upon the account, or such portion of it as he may establish, from the time it became due, and defendant cannot avoid the payment of interest by disputing the account.</p> <p>5. Limitation — Accounts—Partial Payments.</p> <p>An acknowledgment of and partial payment on an account within six years prior to commencement of action thereon would relieve the account of the bar of the statute of limitation.</p>

<p>1. Contracts — Evidence—Oral Evidence to Vary Written Contract — Statute of Frauds.</p> <p>Extrinsic oral evidence is not admissible to contradict, add to, subtract from or vary the terms of a written contract, and the rule applies with greater force to contracts required by the statute of frauds to be in writing.</p> <p>2. Contracts — Trusts—Evidence—Statute of Frauds.</p> <p>To establish a trust by oral evidence alone, in order to take the case out of the statute of frauds, the contract must be estaDlished by clear, certain and conclusive proof, unequivocal in all its terms.</p> <p>3. Sales-r-Options — Water Rights — Estoppel.</p> <p>Where the locator of certain mining claims gave an option to purchase the same and the purchaser located a water right and constructed a pipe line part of which was constructed through the property covered by the option, and before executing the contract of option the purchaser told the seller he was going to construct the pipe line for his own benefit and if he failed to purchase under the option he would sell the pipe line to the highest bidder and the pipe line was not mentioned in the contract, the owner of the claims will not be heard to say that the pipe line became his property upon the expiration of the option.</p>

<p>1. Estates of Decedents — Executors—Removal to Other State— Jurisdiction.</p> <p>An executrix appointed and qualified in another state is not liable to an action in the courts of this state against her in her capacity as such executrix to enforce the performance of her official duty. But where such executrix brings into this state, funds of the estate received as such in another state and has misapplied and is improperly'using such trust fund, an action may he maintained against her in the courts of this state to protect such fund from loss, by persons entitled thereto. To ■ maintain such action, however, it is necessary for plaintiffs to prove that defendant brought into this state funds and assets belonging to the estate of the testator.</p> <p>2. Same — Wills.</p> <p>Where a will executed and probated in another state bequeathed to the wife of testator a life estate in all his property and appointed her his executrix, hut provided that if she married again the executrix should set apart for and invest in the names of the children such portion of the estate as they would have inherited had he died intestate, to become their absolute property only when they respectively reached the age of 25 years, and the widow married and moved into this state, an action could he maintained against her in the courts of this state, if money or assets belonging to the children were brought! into this state, to require a proper safeguard or investment of such fund as the will directs or the laws of such other state i require, but no absolute money judgment could be rendered s against the executrix in favor of the children, before any of ' them had reached the age of 25 years.</p> <p>3. Same — Jurisdiction—Title to Real Estate.</p> <p>In an action between the legatees under a will and a foreign executrix who is charged with wrongful application of the personal assets of the estate, which she brought into this state, the courts of this state have no jurisdiction to try the title to real estate situate in the state of domiciliary jurisdiction.</p>

<p>1. Mines and Mining - Known Vein in Placer Location - Burden ofof Proof.</p> <p>As between, placer locations and subsequent conflicting lode locations, a known vein within the limits of a placer, when that question is raised collaterally, is one known to exist at the time of application for patent for such placer, and to contain minerals in such quantity and quality as to justify expenditure for the purpose of extracting them. And the burden of proof is upon the lode claimant to establish by clear and convincing testimony that the vein or veins, which he claims, are of the character which would render them known veins. ,</p> <p>2. Same — Evidence.</p> <p>One claiming land as a lode location against a prior placer location upon which patent has issued, must establish that the ground so claimed was known to be valuable to operate as a lode mining claim when application for patent was made upon the placer. Evidence of the existence óf a vein which might be sufficient to support a lode location as against a conflicting lode claim, or as against a subsequent placer location in an adverse suit, is not sufficient to establish the existence of a known vein within the boundaries of a prior patented placer, location.</p> <p>3. Same.</p> <p>Evidence considered and held insufficient to show the existence of a known vein within the boundaries of a placer location at the time a patent thereto was applied for.</p> <p>4. Adverse Suits — Pleading—Practice—General Denial — Evidence.</p> <p>In an adverse suit where plaintiff alleged a location on unappropriated mineral land, under a general denial by defendant, a patent to a- prior placer location was admissible in evldeuce to show that plaintiff’s location was not made upon land subject to location.</p> <p>5. Same — Inconsistent Defense — Estoppel.</p> <p>In an adverse suit between two lode claimants the boundaries of whose claims were identical, where plaintiff’s discovery-shaft was located within the boundaries of a prior patented placer claim and defendant’s discovery shaft was outside the placer boundaries, because defendant averred in his answer that his location was made upon unappropriated mineral land, he was not thereby estopped to introduce evidence to. prove that plaintiff’s location was not upon land subject to location.</p> <p>6. Adverse Suits — Conflict Between Placer and Lode Claims — ■ Application for Patent — Amendment.</p> <p>In an adverse suit where it appears that plaintiff’s lode claim was made upon a prior placer location and that at the time of the original application for patent to the placer claim the vein upon which the lode location was made was not known to exist, the fact that the application for patent was amended after the lode location was made was immaterial where the discovery shaft of the lode claim was included in the original application and the amendment did not embrace any additional territory.</p> <p>7. Mines and Mining — Known Vein in Placer Location — Notice.</p> <p>The fact that a lode claim including part of the ground of a placer claim was made prior to application for patent to the placer which lode claim was abandoned before the issuance of patent for the placer, would not charge the placer claimant with notice of the existence of a known vein within the limits of the placer where no mineral was disclosed in any 'vein upon the abandoned lode claim which would justify expenditure for the purpose of extraction.</p>

<p>1. Water Rights — Adjudication of Priorities — Res Judicata— Abandonment.</p> <p>The volume of the priorities awarded, a ditch in a proceeding to adjudicate priorities is res judicata, and the facts upon which such award was predicated cannot he inquired into for the purpose of determining whether or not there has been a partial abandonment of the priorities awarded. The question of abandonment must be limited to acts which occurred subsequent to the decree adjudicating priorities.</p> <p>2. Water Rights — Abandonment—Findings—Appellate Practice.</p> <p>The finding of the trial court upon the question of abandonment of priorities of water rights made on conflicting evidence will not be disturbed by the appellate court, where there is sufficient evidence to sustain the finding.</p> <p>3. Water Rights — Abandonment—Burden of Proof.</p> <p>The burden of proof to establish an abandonment of priorities of water rights is upon the party alleging such abandonment.</p> <p>4. Water Rights — Enlarged Use — Evidence—Burden of Proof.</p> <p>In an action to restrain the diversion of water because of an alleged enlarged use of the adjudicated priorities, it is incumbent on plaintiff to prove that a greater quantity of water, measured either by volume or time, than the priorities are entitled to, is being diverted. The mere fact that an additional acreage is being supplied with water from such priorities is not sufficient to establish the issue of enlarged use when it appears that the same acreage is also supplied from other sources.</p> <p>5. Water Rights — Change of Place of Use — Injunction—Evidence.</p> <p>In an action to restrain the diversion of water on the ground that by reason of a change of place of use to lands located further from the stream than the lands to which such water was formerly applied, less water is returned to the stream by seepage, if it be conceded that this is a matter of which plaintiff can complain, no relief could be granted in the absence of testimony from which it could be ascertained with a reasonable degree of certainty what difference in such seepage has been caused by the change of place of use.</p> <p>6. Water Rights — Findings of Trial Court — Misconception of issues.</p> <p>In an action to restrain the diversion of water upon the grounds of abandonment, enlarged use and change of place of use, where evidence was received and considered upon all three oi the issues and at the close of the trial plaintiff presented to the court what he conceived should be the findings and decree of the court, which the court refused to adopt, a general finding oi the court for the defendant made upon conflicting evidence will not be reviewed by the appellate court on the ground that the trial court misconceived the issues.</p>

<p>1. Pleading — Practice—Fraud.</p> <p>It is error to render judgment against a party on an issue of fraud where no such issue is made by the pleading.</p> <p>2 Partnership — Accounting.</p> <p>In an accounting between partners, where neither is guilty of acts, omissions or concealments involving a breach of legal or equitable duty towards the other, they are only liable to account to each other severally and not jointly. Each can he held to account to every other for himself only and not for his copartners. • '</p> <p>3. Partnership — Accounting—Parties.</p> <p>It is error to render judgment against one partner at the suit of the personal representative of another partner for an accounting without making all the members of the partnership parties to the action, unless the complaint alleges facts which would justify the court to proceed to an accounting between plaintiff and defendant in the absence of other members of the partnership.</p>

<p>1. Water Rights — Priorities—Pro-rating Amongst Consumers from Same Ditch.</p> <p>Appropriators of water from the same stream through the same ditch may have different priorities of right to the use of the water, and. in times of scarcity of water, consumers having the earlier priorities may not be compelled to pro-rate the water of the ditch with other consumers having later priorities of rights.</p> <p>2. Same — Evidence—Burden of Proof.</p> <p>Consumers of water from a ditch claiming a prior right to the use of the water over other consumers from the same ditch and asking that the carrier be restrained from pro-rating the water in times of scarcity amongst all the consumers from the ditch, are charged with the burden of proof to show by a preponderance of evidence that they are entitled to the relief asked, and should lay before the court, in full detail, the facts concerning their priorities, the dates when they attached, the amount of water they are entitled to receive, and the same data with respect to the rights of other consumers who are alleged to have no right to a pro-rata share in times of scarcity.</p> <p>3. Water Rights — Pro-rating Amongst Consumers of Same Ditch — Parties—Waiver.</p> <p>In an action by consumers of water from a ditch, claiming a prior right to the use of water over other consumers, to prevent the pro-rata distribution of the water in times of scarcity, all consumers claiming such priority of right must be 'joined as parties plaintiff, or if their consent thereto cannot be had, must be made parties defendant, and all consumers alleged to have inferior rights must be made parties defendant, so that the rights of all consumers from the ditch can be adjudicated and settled in the one action. In such action the ditch company cannot represent water consumers who are stockholders in the ditch company, and the fact that the ditch company answered over after demurrer would not waive the objection of nonjoinder of parties.</p> <p>4. Water Rights — Pro-rating Amongst Consumers — Decree.</p> <p>A decree against a ditch company enjoining it from compelling plaintiffs to pro-rate the waters of the ditch in times of scarcity with any of the stockholders of the ditch who became consumers of water for the first time subsequent to an enlargement of the ditch at a specified time without any finding or statement in the decree as to who the stockholders are whose rights accrued prior to that time, or the amount of water to which they are entitled is indefinite and defective.</p> <p>5. Evidence — Rejection of Material.</p> <p>Where material evidence is admitted on behalf of plaintiff it is error to refuse to permit defendant to introduce similar negative evidence.</p>

<p>1. Constitutional Law — Statutory Construction — Larceny—Embezzlement.</p> <p>The act (Session Laws 1893, page 119) making one who embezzles money or property guilty of larceny and punishable ■accordingly, is not unconstitutional because the title to the act does not contain embezzlement, but contains only the subject of larceny.</p> <p>2. Practice in Criminal Cases — Absence of Judge from Courtroom During Trial.</p> <p>It is reversible error for the judge to absent himself from the court-room during the argument in a criminal trial so that he is out of sight and hearing of the trial and fails to rule upon an objection by defendant to the argument of the prosecuting attorney.</p>

<p>1. Larceny by Bailee — Live Stock — Value.</p> <p>One convicted of the larceny of a cow under section 1256 Mills’ Ann. Stats., malting the conversion of property by a bailee with intent to steal the same, larceny in the manner as if the original taking had been felonious, is guilty of grand larceny without regard to the value of the animal, and in such a case it is not necessary to either allege or prove the value.</p> <p>2. Practice In Criminal Cases — Consolidation—Larceny.</p> <p>Where two defendants were each charged' with the larceny of the same two animals and were each separately indicted in each case, the cases might, with the consent of the defendants, be consolidated, notwithstanding two separate offenses were charged, and it was not the duty of the court upon its own motion to order the trials to be separated when he discovered that two offenses were being proved.</p> <p>3. Same — Concurrent Sentences.</p> <p>Where one was convicted of two offenses at the same trial and the sentence to the penitentiary in. the second case runs concurrently with the first, and there is sufficient evidence to sustain the' conviction in the first case, the appellate court will not consider objections concerning the sufficiency of the evidence in the second case.</p> <p>4. Larceny by Bailee — Intent.</p> <p>Where parties who took cattle for pasturage to be returned to the owner in the fall cut out'the brand of the owner and placed their own upon an animal, intending to return the piece of hide to the owner in the fall and tell him the animal had died, and when the animal got fat intended to kill and sell it, there was a sufficient conversion to constitute larceny.</p>

<p>1. Constitutional Law — Admissions of Counsel — Motion to Quash.</p> <p>In a criminal prosecution where defendant moved to quash the information, on the ground that the statute on which it was based was void because not adopted as required by the constitution, and set forth in the motion the facts which, it was claimed, rendered the statute invalid, the fact that the prosecuting attorney neither demurred to nor answered the motion was not an admission of the truth of the facts alleged in the motion upon which the court could act in holding the statute unconstitutional.</p> <p>2. Constitutional Law — Legislative Journals — Evidence.</p> <p>The courts of this state will not examine the legislative journals to determine whether or not a statute was adopted in accordance with the provisions of the constitution upon a mere allegation that such statute is unconstitutional,'</p> <p>3. Same — Admissions of Counsel.</p> <p>It is not within the power of counsel to enter into a stipulation the effect of which would he to render a statute void, nor will a statute be held to he invalid because counsel fail to deny the facts alleged concerning the entries in the legislative journals as to the passage of the act, even though the allegations, if true, would compel the court to declare the act unconstitutional. The court will not consider admissions of parties or their counsel that a law has not been passed in accordance with the constitution, nor admissions of facts as to the contents of legislative journals for the purpose of inquiring into the validity of a statute.</p> <p>4. Same — Practice.</p> <p>If a party desires the ruling of the trial court upon the constitutionality of a statute because of an alleged failure to comply with the constitution in its passage, he must in some way present the facts upon which he relies to the trial court, and if he seeks to have the ruling of the trial court reversed by the appellate court, the proof offered in the trial court must he made part of the record by hill of exceptions.</p> <p>5. Practice in Criminal Cases — Rape—Age of- Defendant — Instructions.</p> <p>In a prosecution for rape it is not essential that the prosecution either allege or prove that defendant was over the age of fourteen years, and it was not error to refuse an instruction requiring such proof.</p> <p>6. Same — Evidence—Birth of Child.</p> <p>In a prosecution for rape on a female under the age of eighteen years, where the evidence showed that the prosecuting witness had given birth to a child, it was not error to refuse to instruct the jury that they could not consider such evidence in determining whether the defendant had committed the offense.</p> <p>7. Rape — Instructions—Evidence—Corroboration.</p> <p>In a prosecution for rape it was not error to refuse to-instruct the jury that a conviction could not" he had upon the uncorroborated testimony of the prosecutrix and that evidence of opportunity would not corroborate tbe principal fact. Neither was it error to refuse to instruct the jury to acquit the defendant unless they found beyond a reasonable doubt that the prosecutrix was corroborated as to the alleged acts of intercourse.</p> <p>8. Rape — Evidence.</p> <p>Evidence held sufficient to sustain a conviction for rape upon a female under the age of consent.</p>

<p> Petition for Writ of Certiorari. </p>

Action by defendant in error to recover damages for personal injuries claimed to have been caused by the negligence of plaintiffs in error. From a verdict and judgment in the sum of five thousand five hundred dollars, the defendants bring the case here for review on error.

<p>Appellate Practice — Mandate—Mandamus.</p> <p>Where a cause was reversed and remanded to the trial court for a new trial, and the question of amending the pleadings was not passed on by the appellate court, the allowance of an amendment was within the jurisdiction of the trial court; and, if the court erred in allowing such amendment, its action may be reviewed on appeal or error, but the court will not be prevented by mandamus from allowing the amendment.</p>

<p>1. Attorneys at Law — Disbarment.</p> <p>If, subsequent to his admission to the bar, an attorney is guilty of such conduct that he no longer possesses the qualifications necessary to admit him to membership, his name should be stricken from the rolls whether such conduct is in his professional capacity as attorney or not.</p> <p>2. Same — Misappropriation of Client’s Money.</p> <p>In a proceeding of disbarment against an attorney for the misappropriation of money belonging to a client, where the evidence shows that the money was misappropriated by respondent’s partner, but respondent admitted that he received from his partner a small part of the money and consented that part of it should be used to pay office rent, the evidence was sufficient to warrant respondent’s disbarment.</p> <p>3. Attorneys at Law — Disbarment—Reinstatement.</p> <p>The supreme court has the same power to reinstate an attorney that it has to disbar him. In a disbarment proceeding, where the facts are such as to require the disbarment of respondent, but the circumstances appeal to the judicial clemency of the court, although the court may not be able to exonerate the respondent, it may order his reinstatement.</p>

<p>1. Evidence — Objections—Expert Testimony.</p> <p>A general objection to the admission of testimony on the grounds that it is incompetent, immaterial and irrelevant, and that the question is leading, does not raise the question of the admissibility of expert testimony.</p> <p>2. Mines and. Mining — Discovery Vein — Expert Evidence.</p> <p>The question as to whether or not .the discovery vein of a mining claim location is such a lead as a reasonably prudent person would be justified in following with the expenditure of time and money, with the hope of finding gold in paying quantities, is a question upon which properly qualified persons may give their opinions in testimony.</p> <p>.3. Adverse Suits — View of Premises — Guides—Parties.</p> <p>In an adverse suit the appointment of one of the parties to the action as one of the guides to accompany the jury while viewing the premises is not an abuse of discretion, and is no ground of objection to the verdict and judgment.</p> <p>4. Mines and Mining — Value of Discovery Vein — Expert Testimony — Presumptions.</p> <p>In an adverse suit where a witness in answer to a question stated that he knew the value of the vein matter at the point of discovery, and then stated the value, it will be presumed that the witness based his answer upon his own knowledge where 'the opposing party was given an opportunity to show by cross-examination upon what his answer was based, and failed to do so.</p>

The Anchor and the Mattie L. are both patented lode mining claims and, as originally located, overlapped on the surface as shown by the accompanying diagram. The appellee, plaintiff below, The Anchoria-Leland Mining and Milling Company, is the owner of the Anchor, and The Jefferson Mining Company, appellant and defendant below, owns the Mattie L. claim.

<p>1. Receivers — Costs—Consolidation of Actions — Jurisdiction.</p> <p>Where an- action in which a receiver had been appointed was consolidated with another action and in the order of consolidation the court expressly reserved jurisdiction to hear and dispose of all matters relating to the former action, or arising out of the receivership, and reserved for future consideration the priority and rank of claims against the receiver or the party for whom he was appointed, the court had jurisdiction to render judgment in the consolidated action, against the party at whose instance the receiver was appointed in the former action, for the costs and expenses of the receivership.</p> <p>2. Receivers — Costs.</p> <p>Where a receiver and his successor' had been discharged so that neither was before or under the control of the court at the time, it was not improper to render judgment directly in favor of those who furnished supplies or rendered services to the receiver while he was acting in that capacity, instead of making such allowances to the receiver.</p> <p>3. Receivers — Mortgages—Foreclosure—Consolidation of Actions —Final Judgments.</p> <p>Where an action for debt in which a receiver was appointed for the defendant was consolidated with a subsequent action against the same defendant to foreclose a mortgage, and the order of consolidation reserved jurisdiction to hear and determine all matters relating to the former action or arising out of the receivership, and a final decree of foreclosure was entered in the consolidated action giving the mortgage lien priority over the receiver’s certificates, and the decree expressly reserved for future adjudication all questions not thereby disposed of, such judgment was not a determination of any of the issues of the former action except the relative rank of the receiver’s certificates, and the court had jurisdiction after the expiration of the term at which such judgment was entered to render judgment against the plaintiff in the former suit for costs and expenses of the receivership, and the fact that said plaintiff had not- prosecuted its action to a conclusion did not operate to deprive parties who furnished supplies to the receiver of their right to proceed against such plaintiff for such supplies.</p> <p>4. Receivers’ Certificates — Election of Remedies.</p> <p>Holders of receivers’ certificates of indebtedness for supplies furnished a receiver by attempting to have their certificates adjudged a lien on funds in the hands of the receiver superior to a prior mortgage did not thereby elect between inconsistent remedies so as to prevent them from afterwards proceeding against the plaintiff at whose instance the receiver was appointed for their claims.</p> <p>5. Receivers — Notice.</p> <p>A plaintiff at whose instance a receiver is appointed is charged with knowledge of the fact that if the fund in the hands of the receiver is inadequate to defray the costs and expenses of the receivership, he is liable for such expenses, and it is not incumbent on the holders of receivers’ certificates for such expenses to advise such plaintiff that they will look to him for payment.</p>

<p>Appellate Practice — Jurisdiction of Supreme Court — Freehold.</p> <p>An action to annul certain conveyances, the effect of which would be to divest defendant of the title to real estate and vest it in plaintiff, involves a freehold so as to give the supreme court jurisdiction to review a judgment therein.</p>

<p>1. Appellate Practice — Abstract of Record — Motion to Dismiss.</p> <p>A motion to dismiss an appeal on the ground that the abstract is not sufficiently full to present the parts of the record to which the assignments of error relate, will not be considered.</p> <p>2. Appellate Practice — Appeal Bond — Amendment.</p> <p>On motion to dismiss an appeal on account of irregularities in the appeal bond, where appellant asks leave to amend, the appeal will not be dismissed, but appellant will be allowed to amend.</p>

<p>1. Appellate Practice — Water Rights — Statutory Construction— Dismissal.</p> <p>In an appeal from a statutory proceeding to adjudicate priorities of water rights, the provisions of the statute with reference to filing with the clerk of the supreme court of a transcript of the record and proof of service and publication of a certified copy of the order allowing the appeal, are mandatory; and if either be not filed within the time specified, the appeal must be dismissed upon motion.</p> <p>2. Same.</p> <p>Where an appeal from a statutory proceeding to adjudicate priorities of water rights is dismissed for failure to file with the clerk of the supreme court, within the time limited, a transcript of the record or proof of service and publication of the order allowing the appeal, it cannot be dismissed without prejudice to another appeal; neither can the cause be redocketed on writ of error, under section 388a Mills’ Ann. Code.</p>

<p>1. Instructions — Homicide—Seif-Defense—Appearances.</p> <p>In a prosecution for murder where the defense was self-defense, an instruction that in the absence of malice the killing would be manslaughter unless done in necessary self-defense, is not prejudicially erroneous as denying defendant’s right to act upon appearances in defending himself, where the following instruction told the jury that defendant might act upon appearances.</p> <p>2. Homicide — Self-Defense—“Retreat to the Wall” — Instructions.</p> <p>In a prosecution for murder where the defense is self-defense and defendant’s testimony, if true, established a case of self-defense to which the common-law doctrine of “retreat to the wall” was not applicable and the people’s testimony tended to establish a case to which said doctrine was applicable, it was prejudicial error to instruct the jury as to such doctrine without limiting its application to the case as established by the people’s testimony, if found to be true.</p> <p>3. Same.</p> <p>In prosecutions for murder where the defense is self-defense, the common-law doctrine of “retreat to the wall” is applicable in this jurisdiction only to such cases as where the defendant voluntarily enters into a fight, or where the parties engage in mutual combat, or where the defendant, being the assailant, does not endeavor in good faith to decline any further struggle before firing the fatal shot, or similar cases, and it is error to submit said doctrine to the jury without restricting it to such cases.</p> <p>4. Instructions — Contradictory.</p> <p>Where, in a criminal prosecution, the' court upon its own motion gave an instruction which was prejudicially erroneous, the fact that in subsequent instructions given at defendant’s request, and which were prefaced by the statement that they were given at defendant’s request, correct instructions upon the same point were given, would not cure the error.</p>

The constitutionality and, as to druggists, the applicability, of sections 18 and 19 of our general revenue law (Session Laws 1902, pages 47, 48), have been called in question by the state druggists’ association, of which defendant is a member, and by others embraced within its provisions, who have refused to pay the license fee therein prescribed.

<p>1. Attorneys at Law — Disbarment—Indebtedness to Client.</p> <p>Where an attorney has not been guilty of any fraud or deception towards his client, the fact that he may owe his client a balance of an account growing out of the relation between them Of attorney and client will not be entertained as the subject of a proceeding to disbar, when it appears that such balance is the subject of a bona fide dispute.</p> <p>2. Attorneys at Law — Disbarment—Evidence..</p> <p>In a proceeding to disbar an attorney at law on the ground of failing to return to his client an abstract of title belonging to her, where there was evidence tending to prove that all papers belonging to her, including the abstract, were turned over to her, her testimony that the abstract was not amongst the papers-received, but that she did not discover its absence for several months after receiving the papers, was insufficient to show that respondent had appropriated to his own use, or wilfully withheld from her, the abstract of title.</p> <p>3. Same — Raising Note.</p> <p>In a disbarment proceeding, a charge against respondent of raising the amount of a promissory note after its execution and delivery, should be clearly established by the proof to justify a disbarment.</p> <p>4. Same — Misstatements to Clients.</p> <p>A misstatement by an attorney to his client which does not defraud the person to'whom it is made, or deceive him to his prejudice, is not sufficient to justify disbarment.</p> <p>5. Attorneys at Law — Disbarment—Assisting Client to Avoicf Attachment — Fraud of Client — Evidence.</p> <p>The fact that an attorney advised and assisted his client to remove property to avoid the attachment of a party claiming to-have been defrauded by the client, would not justify the disbarment of the attorney where, prior to the removal of'the property, the client had undergone a preliminary examination on the charge of fraud and had been' set at liberty by the examining magistrate.</p> <p>6. Attorneys at Law — Disbarment—Exorbitant Fees.</p> <p>Where a client voluntarily executed and delivered to his attorney certain securities for professional services and for procuring bail for the client and assisting him in raising money, and the securities were foreclosed by the attorney, the question as to whether or not the attorney’s charges were unreasonably large and whether or not he should account to his client for any of the money received, will not be determined in a disbarment proceeding against the attorney.</p> <p>7. Attorneys at Law — Disbarment.</p> <p>The fact that an attorney at law, by foreclosing a chattel mortgage on household furniture.executed to him by his client for a debt due him, worked a hardship upon the family of the client, is not ground for disbarment.</p> <p>8. Same.</p> <p>A charge against an attorney, at law of misconduct in attempting to establish ■ a liability upon an injunction bond, where the acts occurred between four and five years prior to the filing of disbarment proceedings, and where at the time of the acts, when the facts were brought out in court, the attorney promptly admitted- his mistake and realized his wrong, and no one was substantially injured by his action, and the whole matter was made public and published in the daily press at the time, will not he held sufficient for disbarment after the lapse of so long a time, whether or not the acts at the time would have been sufficient to justify disbarment.</p>

<p>Attorneys at Law — Disbarment—Advertising as Divorce Lawyer.</p> <p>For advertising as a divorce lawyer, and upon the authority of the opinion in the case of The People ex rel. Attorney General v. MacCabe, 18 Colo. 186, respondent’s name is stricken from the roll of attorneys.</p>

<p>1. Intoxicating Liquors — Statutory Construction.</p> <p>Chapter 65, page 159, Session Laws 1901, prohibiting the sale of spirituous and malt liquors in counties outside of incorporated towns and cities without a license from the board of county commissioners, is valid, and the subject thereof is clearly expressed in the title.</p> <p>2. Informations — District Courts — Perjury.</p> <p>An information for perjury which charges that it was committed in the “district court of San Miguel county, Colorado,” charged with sufficient certainty before what court the alleged false oath was taken.</p> <p>3. Same. — Name of Clerk.</p> <p>In an information for perjury it is not necessary to .state the name of the clerk of the court by whom the oath was administered.</p> <p>4. Practice in Criminal Cases — Plea of Guilty — Examination of Witnesses.</p> <p>Section 1463 Mills’ Ann. Stats., providing that in all cases where a defendant has pleaded guilty and the^ court has any discretion as to the extent of the punishment, '“it shall be the duty of the court to examine witnesses as to the aggravation and mitigation of the offense,”, is mandatory, and where a defendant pleaded guilty to the charge of perjury, the fact that the judge before whom the plea was entered presided at the trial at which the perjury was committed, and all the facts upon which the charge of perjury was based were within his knowledge, did not relieve him of the duty of examining witnesses, and a sentence imposed under such circumstances without examining witnesses is erroneous and must be reversed.</p>

<p>1. Practice in Civil -Actions — Verdicts—Inconsistent Special Finding — Presumptions.</p> <p>Where a special finding of fact, inconsistent with the general verdict, is so irreconcilable therewith as to be incapable of removal by any evidence admissible under the general issue, the general verdict cannot stand, and judgment entered upon it is improper. But every presumption and intendment is to be indulged in favor of a general verdict, and, in ascertaining whether such inconsistency exists, recourse may be had to the issues as made by the pleadings, and if by any possible competent evidence that might be produced thereunder the apparent inconsistency can be overcome, it may be disregarded, and the general verdict permitted to stand.</p> <p>2. Appellate Practice — Verdicts—Inconsistent Special Findings —Waiver.</p> <p>If a party desires 'to have heard in an appellate tribunal objection to the entering of a judgment on a general verdict on the ground that it is inconsistent with special findings, he must first call the attention of the lower court thereto by a motion for judgment upon the special findings notwithstanding the general verdict, otherwise he waives the objection. A motion for a new trial does not save,the point.</p> <p>3. Verdicts — Special Findings.</p> <p>Where the special findings of a jury are inconsistent and contradictory with each other, some of which are inconsistent with the general verdict and others support the verdict, the find-" ings destroy each other and the general verdict will stand.</p>

<p>1. Judgments — Conviction for Crime — Death of Defendant— Abatement.</p> <p>A judgment against a person upon a conviction for crime is abated by tbe death of .the person convicted, and cannot be enforced against his representatives.</p> <p>2. Practice in Criminal Cases — Informations—Affidavits—Personal Knowledge of Affiant.</p> <p>Whether or not an affidavit to support an information states the facts required by the statute must be determined by the affidavit itself. Its statements cannot be'contradicted by extraneous ' evidence. And where the affidavit alleges that the affiant has personal knowledge of the commission of the offense, this fact cannot be contradicted by outside testimony.</p> <p>3. Corporations — Persons—Penal Statutes.</p> <p>In a penal statute intended to inhibit an act, the word “person” prima facie means “person! in law,” and includes corporations if they are within the spirit and purpose of the statute.</p> <p>4. Same — Employment of Children.</p> <p>Section 413 Mills’ Ann. Stats., prohibiting the employment of children under the age of fourteen years in mills and factories, and providing a penalty therefor, applies to corporations as well as to natural persons, and the fact that the statute provides for imprisonment if the fine imposed is not paid does not exempt a corporation from the penalty, but the fine may be collected by means provided for the collection of money judgments.</p> <p>5. Same — Principal and Agent.</p> <p>Where a corporation, through its agent having a general authority to hire and discharge employees, ’ employed a child under the age of fourteen years to work in a cotton mill, the corporation is guilty and subject to the penalty therefor, notwithstanding instructions had been given by the company to such agent not to employ children under that age.</p> <p>6. Corporations — Employment of Children — Principal and Agent —Evidence.</p> <p>In a prosecution against the agent of a corporation for employing a child under the age of fourteen years to work in a cotton mill, where the evidence shows that a child under age was employed in the mill, that defendant was the assistant superintendent with authority to hire and discharge employees and was engaged at the mill so that by reason of his relationship to the company he knew, or by the exercise of due. diligence should have known, that a child under the prohibited age was in the employ of the company, it is sufficient to sustain a conviction of such agent.</p> <p>7. Corporations — Principal and Agent — Liability of Agent.</p> <p>An officer of a corporation through whose act the corporation commits an offense against the laws of the state, is himself also guilty of the same offense.</p>

<p>Opinion Followed.</p> <p>Motion to dismiss appeal denied on the authority of the opinion in Venner v. Denver Union Water Co. ante, 207.</p>

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

<p>1. Mining Claims — Possession—Harmless Error.</p> <p>In an action to recover possession of a mining claim, a ruling of the court that plaintiff could not establish right of possession based upon occupancy without proof of a valid statutory location, if error, was harmless and waived by plaintiff’s producing proof of valid statutory location, if the proof was sufficient to show compliance with the statute.</p> <p>2. Mining Claims — Assessment Work — Extension of Time to Enlisted Soldiers.</p> <p>Under the act of congress of July 2, Í898, to relieve owners of mining claims who enlisted in the military service for the war with Spain, the filing of notice of such enlistment by the owner of a mining claim was in lieu of and constituted a performance of the annual assessment for that year, and was equivalent to a resumption of work, so as to protect the claim from forfeiture for a failure to perform the assessment work for the preceding year, where no relocation had been made on account of such failure prior to the filing’of notice of enlistment.</p> <p>3. Same — Burden of Proof.</p> <p>Where a relocator of a mining claim attempts to sustain his location on the ground that the former locator, who had enlisted in the military service for the war with Spain, had failed to resume work thereon within six months after being mustered out of service, the burden of proof is upon the relocator to show that the former locator has been mustered out of service for the length of time required to constitute a forfeiture.</p> <p>4. Mining Claims — Forfeiture — Relocation — Wrongful Possession.</p> <p>Where persons took wrongful possession of a mining claim during the absence of the owner thereof in the military service, and wrongfully held possession and excluded therefrom said owner after his return from such military service, and prevented him from performing the required assessment work thereon, they cannot claim a forfeiture on account of such failure to perform assessment work in support of a relocation of the claim by themselves.</p> <p>5. Mining Claims — Tenants in Common — Parties.</p> <p>The owner of an undivided part of a mining claim may maintain an action for possession of the entire claim against one claiming under a title hostile and antagonistic to plaintiff and his co-owners.</p> <p>6. Mining Claims — Forfeiture—Relocation—Re-entry.</p> <p>Where parties attempted to relocate a mining claim after forfeiture by the failure of the original owner to do his annual assessment work, and the relocators failed to sink their discovery shaft the required depth, and failed to perfect their location within the statutory time, and, after the expiration of the statutory time within which the relocators might have perfected their location, the original owner re-entered and resumed work and did his annual assessment work, his forfeiture was avoided and he was restored to his original rights.</p> <p>7. Same — Invalid Location — Amendment.</p> <p>Where parties attempted to relocate a mining claim on the ground of forfeiture by a failure of the original locator to do his annual assessment work, and their attempted relocation was invalid, after re-entry and resumption of work by the original locator the relocators cannot by amendment cure the defects of their attempted relocation.</p>

<p>1. Negligence — Pleading.</p> <p>In an action against a city by an employee for damages for personal injuries received by tbe caving in of tbe sides of a ditcb being excavated by defendant and in wbicb plaintiff was at work as a day laborer, a complaint wbicb alleges tbe failure of defendant to provide a reasonably safe place for plaintiff to work in, tbe danger of wbicb was known to defendant and unknown to plaintiff and could not bave been ascertained by the use of ordinary care by plaintiff, and that tbe risk was extra hazardous and was not an ordinary risk incident to tbe business, states a cause of action, although, so far as tbe allegations disclose, tbe person in charge of tbe construction of tbe ditcb, and under whom plaintiff was at work, was a mere fellow-servant with plaintiff.</p> <p>2. Negligence — Master and Servant — Presumptions.</p> <p>In an action by an employee against bis employer for damages for personal injuries, negligence cannot be presumed from the happening of an accident.</p> <p>3. Contributory Negligence.</p> <p>Where an employee in tbe employment of a city in the work of excavating a trench, was- directed by .his foreman - to enter the trench -for the purpose of bracing the sides to prevent a threatened cave-in and voluntarily obeyed the order with full knowledge of the threatened danger, he was guilty of contributory negligence and cannot recover damages from the city for injuries received by a cave-in of the banks.</p> <p>4. Negligence — Incompetency of Employee — Evidence — Pleading.</p> <p>In an action by an employee against his employer for personal injuries, it is error to permit the introduction of evidence tending to show incompeteney of the foreman under 'whom plaintiff was at work, where there was no allegation of inepmpetency in the complaint.</p> <p>5. Negligence — Safe Place — Instructions.</p> <p>An instruction which makes it the duty of defendant, an employer, to provide an absolutely safe place instead of a reasonably safe place for his employee to work in, is erroneous, and unless cured by other instructions is reversible error.</p> <p>6. Negligence — Safe Place — Making or Repairing the Place.'</p> <p>The doctrine that an employer is required to furnish a reasonably safe place for his employee to work in, applies where the employee is put to work in a permanent place prepared by the employer or other workmen, and does not apply where the work being done by such employee is the making or repairing of the place.</p> <p>7. Same — Assumption of Risk.</p> <p>Where the risk of working in a place is assumed by the employee, the doctrine that an employer is required to furnish his employee a reasonably safe place to work in does not apply. An employee employed to assist in repairing and putting into a safe condition an unsafe working place assumes whatever added risk may come from such work.</p> <p>8. Master and Servant — Obeying Orders of Superior — Assumption of Risk — Contributory Negligence.</p> <p>A servant is generally excusable for obeying orders in and about his master’s business from one in authority over him as a representative of the master. But when the danger to be incurred from such obedience is so. plain and manifest that no prudent person would obey, or the thing ordered to be done was what the servant, with full knowledge of the perils ordinarily incident thereto, was employed to do, he is guilty of contributory negligence and assumes the risk incident to such work, and cannot recover for injuries received in obeying such orders.</p> <p>9. Negligence — Assumption of Risk — Pleading.</p> <p>In an action by an employee against his employer for personal injuries, where the risk was one ordinarily incident to the work being performed, the defendant may avail himself of the defense of assumption of risk without having specially pleaded it.</p>

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

Tbe Twelfth General Assembly, passed an act entitled: “An act to establish the connty of Teller, and the temporary county seat thereof, providing for the appointment of its precinct and county officers, fixing the terms of court therein, and attaching the same to certain congressional, senatorial, representative, judicial and normal districts.” — Laws 1899, p. 359. Part of the territory embraced in the new county was carved out of the county of El Paso.

<p>1. Mining Claims — Abandonment.</p> <p>Where the locator of a mining claim gives up his claim and goes away from it without any intention of repossessing it and regardless of what becomes of it or who may appropriate it, an abandonment takes place instanter, and the property reverts to its original status as part of the public domain and is open to location by the first comer.</p> <p>2. Same — Ratification.</p> <p>Where the owners of three-fourths of a mining claim authorized a party to go upon and relocate the claim, it was an abanclonment as to their 'three-fourths interest; and a subsequent statement made by the owner of the other fourth interest to one of his co-owners that he did not care to have anything further to do with the claim, constituted an abandonment on his part, and a ratification of the act of his co-owners in permitting the relocation.</p> <p>3. Mining Claims — Transfer—Abandonment—Possession.</p> <p>Where the owner of a mining claim sold part of the claim, reserving the mineral right, and, the purchaser went into possession thereof, and the locator afterwards abandoned his claim and it was relocated, the relocator adopting the boundaries of the' original location, the abandonment was effective as to the whole claim and terminated the rights of the purchaser of a part thereof, and the possession of such purchaser could not defeat the relocation of that part of the claim held under conveyance from the original locator.</p>

<p>Appellate. Practice — Motion to Dismiss.</p> <p>Where a correct determination of a motion to dismiss an appeal would require practically as extensive an examination of the record as would be made on final hearing, and incidentally the substantial rights of the parties or some of them would be settled by such determination, the better practice is to postpone action upon - the motion to dismiss until final hearing on the merits.</p>

<p>1. Practice in Criminal Cases — Using Unregistered Docked Horses — Evidence.</p> <p>In a prosecution for driving and using an unregistered docked horse, it is not necessary to prove that the horse is not registered where it clearly appears that the docking was done after the expiration of the time within which he could have been registered.</p> <p>2. Police Power — Constitutional Law — Legislative Authority.</p> <p>. It belongs to the legislative department to exert the police power of the state and to determine primarily what measures are appropriate and needful for the protection of the public morals, the public health or the public safety; and public interests demand that legislative enactments' should be recognized and enforced by the courts, unless plainly in violation of the fundamental law of the constitution.</p> <p>3. Docking Horses — Police Power — Constitutional Law.</p> <p>Chapter 93, Session Laws 1899, page 1Y5, prohibiting the driving, working or using of any unregistered docked horse, is a reasonable and valid exercise of the police power of the state, and is not in violation of the fourteenth amendment of the constitution of the United States, providing that no state shall deprive any person of life, liberty or property without due process of law, nor of section-3, article II, of our state constitution, declaring that “all persons have certain natural, essential and inalienable rights, • among which may be reckoned the right * * * of acquiring, possessing and protecting property, and of seeking and obtaining their safety and happiness.”</p> <p>4. Same.</p> <p>The fact that the legislature failed to state that the use of an unregistered docked horse is in its opinion contrary to the public morals, does not preclude the courts from sustaining the statute upon that theory.</p> <p>5. Same.</p> <p>The prohibition of the use of an unregistered docked horse is not an unreasonable exercise of the police power of the state, and is not in violation of that provision of the constitution' of the United States which provides that no state shall deny to any person the equal protection of the laws, because the owners of docked horses at the time of the adoption of the statute were permitted to use them, provided they were registered within a certain time.</p> <p>6. Same — Punishment.</p> <p>The legislature may provide such punishment as in its judgment the offense warrants, and the courts cannot interfere unless the punishment is cruel or unusual. In the statute prohibiting the docking of horses’ tails and prohibiting the use of unregistered docked horses, the prohibiting the use of unregistered docked horses may be regarded as an additional punishment imposed upon those who violate the law.</p>

<p>1. Taxes and Taxation — Correction of Erroneous Assessment— Jurisdiction.</p> <p>Where petitioners to the board of county commissioners to correct errors in the assessment of property concede and show by their petitions that the property in question is assessable property, the board has jurisdiction to decide the controversy and the district court also has jurisdiction to determine the matter on appeal from the action of the board.</p> <p>2. Same — Appellate Practice — Statutory Construction.</p> <p>If the decision of a district court affirming the action of the board of county commissioners denying petitions to correct errors in the assessment of property is reviewable at all, it is only reviewable by the supreme court when there is present some one or more of the elements which the court of appeals act requires shall be present in order to give the supreme court jurisdiction. The supreme court has not jurisdiction when such decision turns upon the construction of a statute of the state.</p> <p>3. Same.</p> <p>• Upon petition to correct errors in the assessment of property for taxes, if it should appear that the assessment is contrary to the letter or meaning of the statute, it must be set aside, and the decision should be based upon that ground although the assessment might also be held invalid because inhibited by the state or national constitution, and opinion upon the constitutional question should be withheld.</p> <p>4. Taxes and Taxation — Mines' and Mining — Valuation.</p> <p>The general revenue act, for the purpose of taxation, divides mining property into two classes — producing and non-producing mines; and having provided a specific method of ascertaining the valuation of producing mines without specifying any method for non-producing mines, in ascertaining the value of non-producing mines the assessor must resort to the same method employed in fixing the value of other real estate.</p> <p>5. Same.</p> <p>In assessing non-producing mines for taxes, the assessor may not put a greater valuation upon such mines than the minimum valuation placed upon similarly situated and more valuable producing mines by the specific method prescribed in the revenue act.</p>

<p>1. Tax Sales — Redemption by Lienholder.</p> <p>In an action by the grantee of an insolvent debtor against an attaching creditor to remove cloud from title, judgment in the lower court was in favor of defendant, holding the conveyance to plaintiff to be in fraud of creditors. On appeal the judgment of the lower court was reversed on the question of fraud. Pending appeal, and on the last day that redemption could be made, defendant redeemed the property 'in controversy from a tax sale. Held, that a subsequent decree' in plaintiff’s favor properly required plaintiff to pay to defendant the amount paid out by defendant for the redemption from tax sale before plaintiff’s title was made absolute.</p> <p>2. Res Judicata — Identity of Parties, issues and Subject-Matter.</p> <p>Where the parties are the same and the issues identical, and the identical matters actually decided in a former action are attempted to be relitigated in a subsequent action, the fact that the causes of action are different, or concern different properties, does not prevent the application of the rule of res judicata.</p> <p>3. Same — Fraudulent Conveyances.</p> <p>In an action by the grantee of an insolvent debtor against an attaching creditor to remove cloud from title, where defendant pleaded as a defense that the conveyance to plaintiff was fraudulent as to creditors of the grantor, also that the deed to plaintiff was delivered after the levy of defendant’s attachment, and the trial court found both issues in favor of defendant and gave judgment in his favor, and'on appeal the court of appeals reversed the finding of the lower court on the question of fraud, holding that the deed to plaintiff was not fraudulent, but affirmed the judgment on the ground that the deed was delivered after the levy of the attachment, in a subsequent action between the same parties involving the same issues, the judgment of the court of appeals was res judicata as to both issues.</p> <p>4. Same.</p> <p>Where, in an action between the grantee of an insolvent debtor and an attaching creditor, involving title to real estate, the pleading raised two issues: first, that the conveyance of the debtor was in fraud of creditors, and second, that the deed was delivered after the levy of the attachment, and both issues were found in favor of the attaching creditor by the lower court and a decree rendered in his favor, and on appeal the appellate court reversed the finding of the lower court on the question of fraud, deciding that the conveyance was not fraudulent, but affirmed the judgment on the second issue, in a subsequent action between the same parties involving other real estate conveyed by the same deed and levied on by writ of execution after the delivery of said deed, the judgment of the appellate court on the question of fraud was res judicata.</p> <p>5. Res Judicata — Several Issues.</p> <p>Where several issues are properly raised by the pleading and are decided by the court, the parties are concluded by the decision on all the issues determined, although any one of them would have been sufficient to end the case.</p>

<p>Certiorari — Jurisdiction—Appellate Practice.</p> <p>The supreme court has not jurisdiction to review by certiorari a judgment of the court of appeals based upon the construction of a written contract holding that certain extrinsic matters set up in defense were not admissible to vary the terms of the written contract when the only question is whether or not the court erred in its construction of the contract. Mere error by the court of appeals is not sufficient to invest the supreme court with authority to review its judgment on certiorari.</p>

<p>1. Appellate Practice — Jurisdiction of Supreme Court — Constitutional Question.</p> <p>To give tlie supreme court jurisdiction to review a judgment on the groimd that a constitutional question is involved, that question must be not only fairly debatable, but, must be necessary to a determination of the controversy. If the decision of the trial court can he affirmed without passing on the constitutional question, it is the duty of the supreme court to so declare, even though such determination withdraws the case from its jurisdiction and inferentially constitutes an adjudication of the cause on its merits.</p> <p>2. Same — Pleading—Claims Against Counties.</p> <p>In an action by a county treasurer - against the county to recover back, fees of his office paid into the treasury, which fees were in excess of his salary as fixed by the statute of 1899 (Session Laws 1899, page 331), but which were not in excess of his salary as fixed by the salary act of 1891 (Session Laws 1891, page 307), on the ground that the act of 1899 is unconstitutional, where the complaint fails to-allege that the claim had been presented to the board of county commissioners for audit and allowance before commencing the action, it fails to state a cause of action, and on writ of error to a judgment sustaining a demurrer thereto the supreme court will sustain the action of the lower court on that ground and will not consider the constitutional question sought to be raised.</p>

The questions presented for review grow out of a proceeding instituted by the executor to sell real estate to pay debts against the estate of a testatrix. The decree of the county court was adverse to the contention of parties made defendants who were neither heirs, devisees, nor creditors of the estate, hut claimed to be interested in the real estate described in the petition of the executor, and they brought the case here on appeal.

<p>1. Taxes and Taxation — Correction of Erroneous Assessment— Statutory Construction.</p> <p>Session Laws 1889, page 24, providing a mode of procedure whereby an owner of property which has been erroneously assessed for taxes may have such error corrected, applies only to erroneous assessments of assessable property, and does not apply to a case where taxes have been assessed upon property which could not legally be assessed for taxes.</p> <p>2. Appellate Practice — Jurisdiction—Certiorari.</p> <p>Where a board of county commissioners attempted to appeal from a ruling of the district court reversing its action upon a petition to correct an assessment of taxes, and it appears that neither the board of county commissioners nor the district court had jurisdiction, the appellate court may, in the interest of both parties and to avoid a multiplicity of suits, waive informalities and treat the nominal appeal as an application for a writ of certiorari.</p> <p>3. Taxes and Taxation — Relief from Erroneous Assessment— Power of County Commissioners.</p> <p>The board of county commissioners has no power, under Session Laws 1889, page 24, to pass upon the question as to whether or not property is assessable for taxes and to relieve a party from an erroneous assessment on the ground that the property is non-assessable.</p> <p>4. Taxes and Taxation — Correction of Erroneous Assessment-Jurisdiction — Pleading—Practice.</p> <p>In a proceeding under Session Laws 1889, page 24, to correct an erroneous assessment of taxes, the jurisdiction of both the board of county commissioners and the district court depends upon the averments of the petition filed with the board, and the case as made before the board cannot be enlarged or altered by any pleading filed with the district court after the cause is appealed to that court.</p> <p>5. Appellate Practice — Jurisdiction—Taxes and Taxation — Correction of Erroneous Assessments.</p> <p>The rule that where an appellate court has original jurisdictioh of the subject-matter, and the parties to an appeal voluntarily appear and go to trial upon the merits without exception, they cannot afterwards object that the court had not appellate jurisdiction, is not applicable to a proceeding under Session Laws 1889, page 24, to correct an erroneous assessment of taxes. Even though the district court would, in a proper case, have original jurisdiction to annul a void or illegal tax laid upon non-assessable property, it has no such jurisdiction upon appeal from the board of county commissioners in the statutory proceeding to correct erroneous assessments, although no objection was made to the jurisdiction.</p> <p>6. Same.</p> <p>Since neither the board of county commissioners nor the district court has jurisdiction, in a proceeding under Session Laws of 1889, page 24, to determine whether or not property is subject to taxation, the supreme court has not jurisdiction to determine that question on review of' the judgment of the district court.</p> <p>7. Jurisdiction — Waiver.</p> <p>Parties may waive objection to jurisdiction so far as it affects them personally, but they cannot, by consent or waiver, confer upon a judicial tribunal jurisdiction of the subject-matter which it does not possess under the constitution and statutes of the state.</p> <p>8. Appellate Practice — Cross-Errors.</p> <p>Where a constitutional question was ruled in the lower court in favor of appellant, the appellee may not raise such question in the appellate court unless cross-error was assigned thereon.</p> <p>9. Appellate Practice — Jurisdiction of Supreme Court.</p> <p>Whether or not the general revenue law furnishes an adequate, or any, method for fixing the valuation of franchises for taxation is a question of statutory construction which does not invoke the jurisdiction of the supreme court.</p>

<p>1. Appellate Practice — Bill of Exceptions.</p> <p>Where the order of court fixing the time within which a hill of exceptions should he tendered to the trial court, provided that it should be presented to opposing counsel for inspection at least ten days before that time, the fact that the bill was not presented to opposing counsel ten days prior to the expiration of the time, was not grounds for striking out the bill of exceptions where the trial court found that opposing counsel had been afforded reasonable opportunity to inspect the bill.</p> <p>2. Negligence — Master and Servant — Assumed Risk.</p> <p>An employee assumes the risks arising from imperfections in the appliances under his control, which he uses in connection with his employment, that are open and visible and the defects therein which he might have' known by ordinary care, when, without objection on his part, or promise by his employer to remedy such defective appliances, he continues in the service for which he was engaged.</p> <p>3. Same.</p> <p>Where plaintiff, an experienced workman, was employed in defendant’s ore-concentrating mill to operate a tram on which buckets of concentrates were moved from one part of the mill to another by means of switches connecting with the main tram, which switches were simple devices operated by hand, and in performing his duties plaintiff could not have failed to observe that one of these switches had no flange on the inner side such as was used on other switches in the mill, and which formed an additional safeguard in preventing the switch from slipping when closed, and plaintiff made no objection to using such switch and voluntarily continued work without any promise from defend-® ant to remedy the defect, plaintiff assumed the risk arising from such defective switch and cannot recover for an injury caused by said defective switch slipping and letting fall upon plaintiff a loaded bucket.</p> <p>4. Same — Pleading.</p> <p>In an action by an employee against his employer for injury caused by defendant’s alleged negligence, where plaintiff’s evidence discloses that he assumed the risk which resulted in his injury, defendant is entitled to have a verdict directed in its favor, notwithstanding such defense was not pleaded.</p>

<p>1. Assault With Intent to Rape — Force—Evidence.</p> <p>To constitute the crime of assault -with intent to commit rape, the defendant must intend to overcome the resistance of the woman hy such force as may he necessary to accomplish his purpose, hut it is not necessary that he shall have used the force. If there is sufficient evidence of force from which the jury can justly find that the defendant intended to overcome the resistance of the woman by the necessary force, it will sustain a verdict of guilty.</p> <p>2. Rape — Force—Administering Chloroform — Assault.</p> <p>One who has carnal knowledge of a woman while in a state of stupefaction from the use of chloroform is guilty of rape. And although at the time of administering the chloroform the defendant had no unlawful purpose, yet if he afterwards formed the design and purpose to have sexual intercourse with her while she was under the influence of chloroform and was unable to remonstrate or resist, and while harboring such intention attempted to have sexual intercourse with her, he was guilty of assault with intent to commit rape, although the assault was one without violence, and although he desisted before accomplishing his purpose.</p> <p>3. Assault With Intent to Commit Rape — Evidence.</p> <p>Evidence examined and held sufficient to sustain a conviction for assault with intent to commit rape.</p> <p>4. Instructions — Non-direction.</p> <p>Where the instructions given are not erroneous, the fact that they do not cover every possible phase of the case is not reversible error if no instructions were offered covering such omitted phases.</p>

<p>1. Pleading — Written Instruments — Variance.</p> <p>When it is apparent from the reading of a written instrument that its meaning and purport, as pleaded, is identical with the original, there is no variance, even though the wording, as pleaded, is different from the instrument itself.</p> <p>2. Same.</p> <p>A complaint which alleged a written contract by which defendant agreed to pay for “services heretofore rendered or which may be hereafter rendered,” is not a fatal variance where the contract introduced in evidence read “services heretofore rendered or which may be heretofore rendered.”</p> <p>3. Pleading — Motion to Make More Certain — Discretion of Court —Appellate Practice.</p> <p>Whether a motion to require a pleading to be made more specific and certain shall be sustained or not is a matter largely in the discretion of the trial court, and its action in such matter will not be interfered with by the appellate court unless it appears that by denying it the moving party was prejudiced.</p> <p>4. Same — Contract—Services.</p> <p>In an action upon a contract to pay for services performed and to be performed, where the defendant was the party who executed the contract sued on and was one of the parties to the contract providing for the services, so that he must have known what the contract was, he was not prejudiced by a refusal to require the complaint to be made more certain with reference to the services to be rendered, although the complaint may have been very general in that respect.</p> <p>5. Pleading — Contract for Legal Services — Attorneys at Law.</p> <p>In an action upon a contract to pay for services rendered and to be rendered, an answer that the services were those of an attorney at law and that the payee named in the contract was not an attorney admitted to practice in this state does not state a defense to the action where the pleadings disclose that the payee had no interest in the sum promised to be paid.</p> <p>6. Same.</p> <p>In an action upon a contract to pay for services performed and to be performed before the United States land department, an answer that the services were those of an attorney at law and that payee was not an attorney admitted to practice in the courts of this state, or before the interior department, or as agent to represent contestants before the general land office, fails to state a defense to the action where it does not appear from the answer, except as a legal conclusion, that the services were of a character the performance of which would be engaging in the practice of law, nor that payee was prohibited from representing defendant before the land department unless admitted either as an attorney or agent before the interior department.</p> <p>7. Judgments — Filing Transcript — Appeal.</p> <p>A judgment plaintiff has a right to file a transcript of his judgment with the clerk and recorder of the county, although an appeal from the judgment has been perfected.</p> <p>8. Judgments — Executions—Appeal—Damages.</p> <p>Although an appeal from a judgment may have been prayed for, the judgment plaintiff has a right to enforce its collection by execution until such time as his right to execution is stayed by filing an appeal bond; and where, prior to the filing of an appeal bond, plaintiff had an execution issued and levied upon defendant’s property, injuries resulting to defendant therefrom do not constitute damages which he is entitled to recover of the judgment plaintiff.</p> <p>9. Practice — Pleading—Opening Statement.</p> <p>In his opening statement to the jury, plaintiffs counsel may properly refer to such defenses as are disclosed by defendant’s answer.</p> <p>10. Contracts — Public Policy — Instructions.</p> <p>Where an agreement is reduced to writing and there is no dispute as to what this agreement is, it is the duty of the court to determine as a matter of law whether such agreement contravenes public policy or not; but where the terms and conditions of such agreement are in dispute, to be determined upon conflicting evidence, it is the duty of the court to direct the jury what facts material to the defense on the subject would constitute a contract void as against public policy, and that, if they found such facts true, no action could be maintained thereon.</p> <p>11. Contracts — Public Policy — Improperly Influencing Public Officers.</p> <p>The fact that one who employed an attorney to procure a patent for government land believed that the attorney would exercise an unlawful influence with the officers of the land office did not render the contract for the services void, unless the attorney intended and agreed to use improper influence.</p> <p>12. Evidence — Contracts.</p> <p>In an action on a contract for services, questions asked on cross-examination of witnesses in reference to other services performed prior to the time the contract in suit was executed and which it was acknowledged had been performed, and the nature and extent of which were not in issue, were properly excluded.</p> <p>13. Evidence — Error Cured.</p> <p>Error committed in excluding evidence is cured by after-wards permitting the same witness to detail the same evidence that was excluded in the first instance.</p> <p>14. Interest — Demand—Commencing Suit.</p> <p>In an action upon a claim which would draw interest from date of demand of payment, commencement of suit is equivalent to a demand, and in the absence of any averment in the complaint as to the date when demand of payment was made, the claim would draw interest from the date of the commencement of suit.</p> <p>15. Interest — Instructions—Appellate Practice.</p> <p>In an action upon a claim which would draw interest from the date of the beginning of suit, where the record does not disclose when suit was begun, and the court instructed the jury to compute interest from a certain date, which instruction was not objected to by appellant, he is precluded from claiming on appeal that interest was erroneously computed from the wrong date.</p>

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

<p>1. Water Rights — Easements—Real Property.</p> <p>A water right is an easement and comes within the meaning of the term “real estate,” as used in our statute.</p> <p>2. Quieting Title — Possession—Equity Jurisdiction.</p> <p>In an action to quiet title to real property, where plaintiff is out of possession and there is some other distinct head of equity jurisdiction sufficient to support the action, equity will retain the cause and grant relief by quieting title or removing a cloud.</p> <p>3. Same — Water Rights.</p> <p>Where a court of equity acquires jurisdiction of a cause to restrain interference with a water right, it may properly retain jurisdiction and determine all the rights of the parties; and may, independent of the statute, enter a decree quieting plaintiff’s title to such water right although plaintiff is not in actual possession thereof.</p> <p>4. Same — Demurrer—Waiver.</p> <p>In an action to quiet title to a water right, where defendant demurred to the complaint on the ground that the water right, being a mere easement, the action would not lie because plaintiff could not be in actual possession thereof, which demurrer was overruled, and defendant, instead of standing by the demurrer, answered setting up title in itself and asked to have its title quieted, its objection to the form of action was waived, even if the point was originally good.</p> <p>5. Water Rights — Quieting Title — Parties.</p> <p>In an action to quiet title to a water right and to restrain interference' with the use thereof, where both parties claimed title from a common source, an irrigation company, and plaintiff proved a grant from said company to its remote grantor and by divers mesne conveyances that said grant had vested in plaintiff, and defendant proved no grant from said company, defendant could not object to plaintiff’s title on the ground that the grant from the company restricted the use of the water to certain specified land which plaintiff had never owned, nor that the continued right of its enjoyment was conditioned upon the payment of an annual rental which plaintiff had not paid, neither could defendant establish title in itself by showing that it had used the water and paid the rental for a number of years.</p> <p>6. Water Rights — Legal Title — Possession.</p> <p>In an action to quiet title to, and restrain interference with, a water right, where plaintiff proves legal title thereto, from that title flows the right to whatever possession the nature of the water right is susceptible of, and to its free use and enjoyment; and, where the complaint and evidence is otherwise sufficient, plaintiff is entitled to a decree establishing its title to the water right and restraining interference with its use.</p> <p>7. Water Rights — Conveyances—Conditions—Parties.</p> <p>. • Conditions in a grant of a water right by a ditch, company, that the water shall be used only on certain specified land, and requiring the grantee to pay a specified annual rental, may be waived by the grantor; and whatever may be the effect of such restriction as between the ditch company and the water consumer, a stranger to the contract, who is in no way connected with the title of the ditch company, cannot interpose such condition as a defense to an action by the water consumer to quiet its title to, and restrain interference with, such water right.</p> <p>8. Pleading — Practice—Misjoinder—Demurrer—Waiver.</p> <p>Where a demurrer to a complaint on the ground of misjoinder is overruled, by answering over defendant waives the objection unless the party is necessary and without whose presence no valid judgment can be rendered.</p> <p>9. Water Rights — Parties.</p> <p>A ditch company is not a necessary party to an action between consumers of water over the right to the use of a certain water right from the ditch of said company.</p>

Action by appellee, as plaintiff, to recover from appellant, as defendant, commissions claimed to bave been earned as a mining broker. From a judgment for plaintiff in tbe sum of two hundred thousand dollars, the defendant appeals. The defendant agreed with the plaintiff that if the latter would effect a sale of the property of The Gold King Mining Company for the sum of two. million dollars, that the plaintiff should receive on such sale a commission of ten per cent.

<p>1. Pleading — Quieting Title — Possession.</p> <p>In an action to quiet title an answer which alleges ownership and possession in defendant is a denial of plaintiffs’ allegation of possession.</p> <p>2. Quieting Title — Possession—injunction—Equity Jurisdiction.</p> <p>Where one of the objects of an action was to enjoin defendant from interfering with plaintiffs’ use of water rights, this was sufficient to invoke the equitable jurisdiction of the court, and having obtained jurisdiction of the subject-matter for that purpose it could decide all of the questions in the case and grant appropriate relief, and could enter a decree quieting plaintiffs’ title without proof of plaintiffs’ possession.</p> <p>3. Water Rights — Conveyances—Appurtenances.</p> <p>Whether or not a water right used to irrigate land passes as an appurtenance to the land by a conveyance of the land which is silent as to the water right, depends upon the intention of the grantor which must be determined by the circumstances of the case and whether or not the water right is or is not incident and necessary to the beneficial enjoyment of the land, and in the absence of a showing of such intention such water right will be held not to pass as an appurtenance.</p> <p>4. Pleading — Denials.</p> <p>A defective special denial does not control a good general denial.</p> <p>5. Pleading — Denials.</p> <p>A general denial of each and every allegation of a complaint not theretofore specifically admitted puts in issue every allegation not expressly admitted, and the fact that some of the allegations were by reason of defective special denials impliedly admitted, would not except such allegations from the general denial so as to relieve the plaintiff from the necessity of introducing proof thereof.</p> <p>6. Same — Water Rights — Conveyances.</p> <p>Where a conveyance of land was silent as to water rights and in an action by the grantee to establish title to water rights he alleged that it was the intention of the grantor to convey said water rights, and that said water rights were used upon the lands conveyed and were necessary and essential to the complete enjoyment of the same; and the answer specifically denied the allegations by defective denials, some of which were mere negative pregnants and others conjunctive denials of conjunctive allegations, but in addition was a general denial of each and every allegation not theretofore specifically admitted; in the absence of objection to the defective denials or motion to make them more certain, the general' denial was sufficient to put in issue the allegations of the grantor’s intention to convey the water rights so as to require plaintiff.to introduce proof of such allegations.</p> <p>7. Conveyance — Mortgages — Habendum Clause — After-acquired Property.</p> <p>A deed of trust in which the habendum clause reads as follows : “To have and to hold the same * * * and all the estate, right, title, interest, claim or demand in and to the same, either now or which may hereafter be acquired,” does not grant any after-acquired property, but merely confirms in the grantee any title to the property specifically conveyed which the grantor might afterwards acquire. Such clause could not operate to convey a water right afterwards acquired and applied to the land conveyed.</p> <p>8. Appellate Practice — Decrees—Objections—Assignment of Cross-errors.</p> <p>An appellee cannot object in the appellate court to a decree in appellant’s favor, on the ground that appellant, who was defendant below, did not in its answer set up any cross-complaint nor ask for affirmative relief, where such objection was not raised in the lower court and no cross-errors are assigned in the appellate court.</p>

Action to set aside a decree and enjoin its enforcement. Onr general assembly has furnished a comprehensive system for regulating the use of water for irrigation and established a procedure for settling the priority of rights to the use of water therefor. Session Laws 1879, 94; Session Laws 1881, 142.

<p>1. Appellate Practice — Transcript—Amendment—Filing — Parties.</p> <p>Where certain defendants in error were made plaintiffs in error and an amended or additional transcript was lodged with the clerk of the appellate court, but by oversight the clerk failed to place any file marks thereon or to note its filing on the docket, and plaintiffs in error filed a printed abstract of record which was based partly upon and frequently referred to said amended transcript so that defendant in error must have known of its existence, and the only objection made to said amended transcript prior to oral argument was a statement in the brief of defendant in error that the parties who had been changed from defendants to plaintiffs in error had filed no transcript, an objection urged on oral argument to said amended transcript on the ground that it had not been filed is not sufficient to exclude it, and it will be ordered filed nunc pro tunc.</p> <p>2. Appellate Practice — Parties—Writs of Error — Waiver.</p> <p>Where, after suing out a writ of error, certain parties named as defendants in error were upon motion made plaintiffs in error, the remaining defendant in error by joining in error waived the suing out of a writ of error by the new plaintiffs in error.</p> <p>3. Principal and Agent — Sales—Commission.</p> <p>The compensation of an agent to sell real estate is contingent upon his procuring a purchaser ready, able and willing to purchase the property substantially upon the terms under which it had been placed in his hands for sale, and before he can enforce his contract for commission it is necessary for him to prove that he has performed his part of the engagement.</p> <p>4. Principal and Agent — Commission—Sales—Options.</p> <p>A broker employed for a stipulated compensation to sell property for a certain sum to be paid at certain stated periods, does not effect a sale entitling him to such compensation by procuring a proposed purchaser who enters into a contract with the owner by the terms of which the payment of part of the purchase price and the completion of the purchase is optional with the purchaser.</p>

<p>Prohibition — Appellate Practice.</p> <p>A writ of prohibition will not be issued by the supreme court to restrain a district court from proceeding in a cause where the petitioners may obtain all the relief to which they are entitled by appeal or writ of error from the final judgment of the district court in the cause.</p>

<p> Appeals from the District Court of Teller County. </p>

<p>1. County Commissioners — Quo Warranto — Parties—Misjoinder.</p> <p>In an action against two county commissioners jointly to test their right to hold their offices on the ground that the board was illegally increased from three to five members and that respondents were the successors in office of the two illegally added members of the board, where it appears that one of the respondents was not a successor of either of the added members of the board, a joint action could not be maintained against respondents.</p> <p>2. County Commissioners — Increase of Number — Regularity of Proceeding — Limitation.</p> <p>Where a county entitled to increase the number of its commissioners from three to five, did make such increase, and the people of the county acquiesced therein and thereafter elected successors to the added members of the board so as to keep the number at five, in an action brought by private individuals twenty years after such increase was made to test the right of the successors of the added members of the board to the office, the courts will not inquire into the regularity of the proceeding making such increase.</p> <p>3. County Commissioners — Reduction of Number — Removal from Office — Constitutional Law.</p> <p>The amendment of section 6, article XIV of the constitution, by which the number of commissioners in counties having less than seventy thousand population was limited to three, does not contemplate the removal from office of two commissioners in counties having five, but will result in the gradual reduction of the number to three as their terms of office expire and no provision is made for the election of their successors, as the amendment provides for the election of two commissioners in 1904 and every four years thereafter, and one in 1906 and every four years thereafter.</p> <p>4. Same.</p> <p>The amendment of section 6, article XIV of the constitution, adopted at the general election in 1902, by which the number of commissioners in counties of less than seventy thousand population was limited to three, does not operate to prevent commissioners elected at that election in counties of less than seventy thousand, having five commissioners, from qualifying and serving out their terms. Such commissioners are entitled to serve out their term which by the amendment is extended so as to expire January, 1907, instead of.January, 1906.</p>

At the written request of Stratton’s Independence, Limited, a mining corporation, The Midland Terminal Railway Company constrncted a track to the ore and coal bins of the former. This track was constructed over the property of the mining corporation, but does not extend beyond the ore and coal bins of that company. Subsequently the mining company changed the location of its ore bins, and an additional track was laid by the ralroad company to these bins.

<p> Appeal from the District Court of Rio Blanco County. </p> <p> Motion. </p>

<p>1. Adverse Possession — Mistake as to Boundary.</p> <p>Possession of and improvements made on adjoining land by .a land owner under a mistake as to the boundary line and belief that the improvements were made on his own land does not constitute adverse possession.</p> <p>2. Same — Bond for Title.</p> <p>One holding land under a bond for title from the owner has a right to improve the same and the making of such improvements could not operate to put the obligor of the bond upon inquiry although such improvements were made .by the obligee under the belief that he was improving his own adjacent land. Such possession and improvements made during the existence of the bond could not constitute adverse possession.</p>

<p>1. Contracts — Certainty—Mines and Mining — Drainage.</p> <p>A contract is not void for uncertainty if it is sufficiently definite so that it can be ascertained with a reasonable degree of certainty what the parties intended to agree to, even though it does not enter into all the details with respect to its subject-matter. Where the owners of a mine by pumping the water from their own mine drained the water from another mine, and the owner of the other mine promised to pay its proportion of the expense of the pumping; such promise is not void for uncertainty because it failed to state just how much or what aliquot part of the expense should be paid by each.</p> <p>2. Contracts — Mutuality.</p> <p>In order to enforce an unexecuted contract mutuality is necessary, but this requisite does not apply to a contract which has been executed. Where one party to a contract has performed that which he agreed to do, the other must pay the consideration he agreed to pay, irrespective of the question of whether or not either was originally bound by the terms of the contract.</p> <p>3. Mines and Mining — Drainage—Apportionment of Expenses— Pleading.</p> <p>Where two mines have the same water level and drainage so that pumping water from one drains the other, in an action by the owners of the mine from which the water was pumped, against the owner of the other, for a proportionate part of the expense of pumping out the water, a complaint which alleged that the mines were drained by plaintiffs; that during the time both plaintiffs and defendant were operating their respective mines; that without such' drainage defendant could not have operated its mine and alleged what was the entire expense of pumping out the water, all of which had been borne by plaintiffs, and that defendant had agreed to pay its proportion of such expense, was a sufficient statement of facts upon which to base an allegation that one-half the expense borne by plaintiffs was a just and fair proportion which defendant should pay, and to sustain an action for that amount.</p> <p>4. Pleading — Action for Services — Promise to Pay — Request.</p> <p>In an action for the value of services performed, where the complaint alleged the performance of the services by plaintiff and that defendant promised to pay for the same, it will be implied that the services were performed at defendant’s request, and it is unnecessary to specifically allege such request.</p> <p>5. Contracts — Mines and Mining — Drainage.</p> <p>Where plaintiffs and defendant were operating separate mines, having the same water level and drainage, and plaintiffs, by pumping the water from their mine also drained defendant’s mine, thus enabling defendant to work its mine, which it could not have done without pumping out the water had not plaintiffs drained the mine by pumping the water from their mine and-both mines were equally benefited by the pumping of the water, a promise by defendant to pay to plaintiffs as part of the expenses of such pumping, “what was just and fair,” should be construed as a promise to pay one-half of such expenses.</p> <p>6. Same — Promise to Pay for Past Services — Consideration.</p> <p>Where plaintiffs and defendant were operating separate mines having a common water level and drainage, and plaintiffs by pumping the water from their mine also drained defendant’s, and defendant derived as much benefit as plaintiffs from such pumping, and plaintiffs had endeavored at various times to effect some arrangement with defendant whereby defendant should pay its proportion of the expense of such drainage, a promise by defendant to pay whatever was just and fair should be construed as a promise to pay its proportion of the past as well as the future expenses of such drainage, and where plaintiffs continued to pump the water and drain the mines after the making of such promise by defendant of which defendant had the benefit, the consideration which it thus accepted went to the entire undertaking upon its part and rendered it liable to pay its proportion of the expense of such drainage, before as well as after such promise.</p> <p>7. Contracts — Mines and Mining — Drainage.</p> <p>Where plaintiffs, hy pumping water from their mine also drained defendant’s mine and defendant received an equal benefit with plaintiffs from such pumping, a promise by defendant to pay plaintiffs its proportion of the expenses of such pumping is binding on defendant notwithstanding defendant had no control over the pumping by plaintiffs and notwithstanding plaintiffs did not agree to continue such pumping for any definite period of time.</p> <p>8. Mines and Mining — Drainage—Corporations—Principal and Agent.</p> <p>Where a mine could not be worked without draining the water therefrom, provision for the drainage of such mine is one of the matters which the manager of the corporation mine owner must necessarily have had authority to make, and where such manager promised to pay to the owners of another mine, through which both mines were drained, a part of the expense of pumping out the water, the corporation owner is estopped to deny the authority of its manager to make such promise.</p> <p>9. Evidence- — Incompetent—Harmless Error.</p> <p>The admission of incompetent and immaterial evidence is not reversible error, where it affirmatively appears that such evidence could not have influenced the court in its findings on any issue in the case.</p> <p>10. Principal and Agent — Contracts—Mines and Mining — Drainage.</p> <p>The manager of a corporation mine owner, having general authority to contract for draining the mine, would have authority to bind the company to pay for past drainage as a part of the consideration for continuing such drainage in the future in the absence of notice to the parties with whom he contracted that he had not such authority.</p> <p>11. Contracts — Consideration—Past and Future Services.</p> <p>Where there is a request to continue services of a character theretofore rendered, the continuance of such services is a sufficient consideration to support a promise to pay for the services rendered prior to the requested continuance and it is not necessary that a definite time be fixed for the continuance of such services, if they be continued a reasonable time.</p> <p>12. Appellate Practice — Variance.</p> <p>An objéction of variance, if not made in the lower court, will not be considered on appeal.</p>

<p>1. Execution Sales — Redemption—Judgment Debtors — Creditors.</p> <p>A judgment debtor has no right to redeem land from an execution sale after the expiration of six months from the date of sale, and an assignee of such debtor has no greater rights. Where, after the expiration of six months from the date of an execution sale, another judgment creditor redeemed the land from the sale and the party entitled thereto accepted the redemption money, an assignee of the judgment debtor could not question the title of the purchaser at the second execution sale on the ground that the judgment under which it was made was void.</p> <p>2. Same.</p> <p>The effect of a redemption from an execution sale by a judgment creditor is not to vacate the sale and set it aside as though the redemption had been made by the debtor, but it operates to transfer the rights of the creditor who made the sale to the one redeeming, provided the redeeming creditor has the right to redeem, and if the holder of the certificate of sale accepts the redemption money the rights of the redeeming creditor are the same as though his redemption was in all respects valid.</p>

<p>1. Revenue — Inheritance Tax — Constitutional Law.</p> <p>The provisions of the general revenue act of 1902 (Session Laws of 1902, page 49), providing for a tax upon inheritances, legacies and devises, are not obnoxious to section 3, article X, of the constitution requiring all taxes to be uniform upon the same class of subjects, nor to section 11, article X, limiting the rate of taxation to four mills on each dollar of valuation.</p> <p>2. Same — Title of Act.</p> <p>The provisions of the general revenue act of 1902, known as the inheritance tax provisions, are not in violation of section 21, article V, of the constitution, providing that “no bill, except general appropriation bills shall be passed containing more than one subject, which shall be clearly expressed in its title.” Said inheritance tax provisions do not embrace a separate and distinct subject from the one expressed in the title, and the title is sufficiently broad to include said provisions and is not so general as to be misleading.</p> <p>3. Same — Law of Descent.</p> <p>The provisions of the general revenue act of 1902, known as the inheritance tax provisions, do not change, the law of descent so as to be in violation of section 25, article V, of the constitution, which prohibits the enactment of any local or special law changing the law of descent.</p>