Volume 36 — Colorado Reports

<p> Appeals from the District Court of Park County. </p> <p> Hon. Samuel L. Carpenter, Jiodge. </p> <p>Actions by Alexander B. Davidson against William Fraser. From a judgment in favor of defendant in each case, plaintiff appeals.</p>

<p> Appeal from the District Court of Las Animas County. </p> <p> Don. Jesse G. Northcutt, Judge. </p> <p>Action by Edna Sundberg against tlie Union Coal and Coke Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p> Appeal from the District Court of La Plata County. </p> <p> Hon. James L. Russell, Judge. </p> <p>Action by Paul A. Larsh. against W. J. Boyle, James Dennison, James J. Gorman and Frank H. Rivers. From a judgment in favor of defendants, plaintiff appeals.</p>

Hon. Jos. Robinson, Judge. Petition by George B. Slattery and Sarah M. Greer, as administratrix of the estate of Orlando J. Greer, for an injunction against W. J. Adams, filed in a proceeding for the settlement of the estate of Orlando J. Greer. From an order denying a motion to set aside the injunction granted, Adams brings error.

<p>Trusts and Trustees — Premature Suit to Establish Trust — Rents . and Profits.</p> <p>Persons claiming that defendant holds land subject to a trust in favor of such of the plaintiffs as are living at the death of A, cannot maintain a suit to have the question of the existence or non-existence of a trust declared, or to have the rents and profits impounded for their benefit until A dies, as, until such time, it can not he determined whether any of them will he living. — P. 41.</p>

<p> Original Proceeding in Disbarment. </p> <p>Original proceeding in disbarment by the People on the relation of the Colorado Bar Association against Alfred M. Nicholas.</p>

<p> Error to the District Court of Pueblo Coimty. </p> <p> Mon. N. Walter Dixon, Judge. </p> <p>Action by A. E. True against tbe Rocky Ford Canal, Reservoir and Land Company. From a judgment for defendant, plaintiff brings error.</p>

Appeal from the District Court of Teller County. Hon. William P. Seeds, Judge. Action by P. E. C. Burke and George F. Frye, copartners as Bnrke & Frye, against the American Bonding and Trust Company of Baltimore, Maryland. From a judgment for plaintiffs, defendant appeals.

<p> Appeal from the District Court of Las Animas County. </p> <p> Eon. Jesse O. Northcutt, Judge. </p> <p>Action by Annie M. Chaney against Emma Mock, William C. Chaney, Claude N. Chaney, Charles E. Chaney, James C. Chaney, Anner Clink, Eosa Douglas, Ida Schooner,- Calla. Hendricks, Minnie Myers, Henry Chaney, Noy Arnold, and Emma Mock as guardian for William C. Chaney and Charles E. Chaney. From a decree in favor of plaintiff, defendants appeal.</p>

Appeal from the District Court of Mesa County. Hon. Theron Stevens, Judge. Action by D. T. Clark, on behalf of himself and all other creditors of the Colorado State Bank of Grand Junction similarly situated, against Alva Adams, Bank of Commerce of Salt Lake City, A. C. Grout, Wm. M. McGinley, A. A. Miller, John Shields, Walter S. Sullivan and W. W. Huntington. From a judgment for plaintiff, defendants appeal. Decision en bane.

<p> Appeal from the District Court of Arapahoe County. </p> <p> Hon. John D. Mullins, Judge. </p> <p>Action by Washington Aldridge against The Longmont Farmers’ Milling and Elevator Company. From a judgment in favor of the plaintiff, defendant appeals.</p>

Eon. James E. Oarrigues, Judge. Action by Tbomas Kirkwood, administrator, against Isaac C. Palmer. Prom a judgment of the district court, dismissing an appeal from the county court, and from a judgment for defendant, plaintiff appeals.

<p> Appeal from the County Court of Weld County. </p> <p> Hon. Charles E. Soicthard, Judge. </p> <p>Action by Jessie Harding against Walter J. Harding for divorce. From a’ decree for plaintifF, defendant appeals.</p>

Eon. 8. L. Carpenter, Judge. Action by tbe City and County of Denver and thé City of Denver against John H. Leiper. Judgment in favor of the defendant, and plaintiffs, bring error. Decision en bcmc.

• Hon. James E. Garrigues, Judge. Action by J. B. McFall against P. B. Jackson on an adverse against an application for a patent for a mining claim. From a judgment in favor of tbe plaintiff, defendant appeals.

Hon. James E. Garrigues, Judge. Action by the White Cloud Gold Mining and Milling Company and others against P. B. Jackson, on an adverse against an application for a patent for a mining claim. Prom a judgment in favor of the plaintiffs, defendant appeals.

<p>Attorneys at Law — Conviction of Felony — Disbarment.</p> <p>Where an attorney at law is convicted of a felony, his name will he stricken from the roll of attorneys of this state, in accordance with Mills’ Ann. Stats., § 145Q. — P. 126.</p>

<p>Original proceeding in disbarment on the relation of the Colorado Bar Association against William J. Thomas. Demurrer to information.</p> <p>Decision en banc..</p>

Mon. A. M. De France, Judge. Quo warranto by the people by John W. B. Smith, district attorney for the first judicial district, upon the complaint and relation of Albert M- Akin and Olaf Iverson. From a judgment in favor of relators, respondents bring* error.

<p>1. Constituticfhal Law — Statutes—Amendments—Report of Conference Committee.</p> <p>In the passage of the act of 1899 (Sess. L. 1899, p. 331, c. 134), fixing the salary of the clerk of the district court in counties of the second class, the report of the conference committee recommending amendments to the original bill and the adoption of the report, but not recommending the passage of the act, was adopted by the ayes and noes, and the names of those voting were entered on the journal. Held to be a sufficient compliance with §22, art. 5, of the constitution, providing that no bill shall become a law except by a vote of the majority of all the members of each house, nor unless on its final passage the vote taken by ayes and noes and the names of those voting be entered upon the journal, and also to be a sufficient compliance with §23 of the same article, providing that no amendment to any bill by one house shall be concurred in by the other, nor the report of any conference committee be adopted in either house, except by a vote of the majority of the members elected thereto, taken by the ayes and noes, and the names of those voting recorded on the journal. — P. 141.</p> <p>2 Same — Statutes—Amendments—Report of Conference Committee.</p> <p>. Where a bill was passed by the house and then amended and passed by the senate, in which amendments the house refused to concur, the subsequent adoption by the house of a report of the conference committee, including some of the amendments adopted by the senate,, was a sufficient concurrence in such amendments. — P. 145.</p> <p>3. Same — Statutes—Printing Amendments.</p> <p>Section 22, art. 5, constitution of Colorado, providing that all substantial amendments to bills shall be printed for the use of members before the final vote is taken on the bill, does not apply to amendments recommended by a conference committee of, the two houses. — P. 145.</p>

<p>1. Constitutional Law — Public Waters — Natural Streams — Right of Fishery — Trespass.</p> <p>Section 5, art. 16, of the constitution of Colorado, declares the unappropriated waters of our natural streams to he the property of the public, and dedicates the same to the use of the people of the state, subject tb appropriation, as in that instrument provided; and the following section provides that the right to divert the same to beneficial uses shall never be denied. It is this right of appropriation which the general government has recognized and confirmed, and subject to which its grants of the public lands in the arid states since 1866 have been made; but neither in this, nor in any other, clause of our constitution, nor in any act of congress, is the right of fishery in the natural streams in this state, or an easement over the public domain for its _ enjoyment, declared to be, or recognized as vested, in the state; nor has any authority to grant the same to its citizens been conferred upon the state. — P. 149.</p> <p>2. Same — Enabling Act — Irrevocable Ordinance — Public Domain.</p> <p>Whatever right this state might have exercised in disposing cf the public domain was relinquished by our enabling act, 1 Mills’ Ann.'Stats., pp. 90, 91 and 109, which specifically provides that one of the conditions precedent to our right to form a state, was to disclaim by irrevocable ordinance all right and title to public lands within the territory, and to expressly recognize the exclusive right of congress to dispose of the same; and this right and title of the United States passed to plaintiff unless excepted or reserved in the instrument of conveyance, or by some act of congress; but no act of congress authorized, nor did plaintiff’s patent contain, any reservation of any public right of fishery, or of any easement over his lands to enable the public to enjoy the same. — P. 150.</p> <p>3. Common Law — Non-navigable Fresh Water Streams — Right of Fishery.</p> <p>As between those claiming public right of fishery and private right of fishery, the doctrine of the common law that the owner of lands which border on a navigable river above the ebb and flow of the tide, and the owner of the lands along the non-navigable fresh water streams, as an incident of such ownership, owns the bed of the stream and the exclusive right therein'to the middle thereof; and if he owns the lands bordering on both sides, he has the exclusive right of fishing in the entire stream to the extent that it flows through his lands, applies in. Colorado in accordance with Gen. St. 1883, §197, providing that the common law of England shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority. —P. 151.</p> <p>4. Constitutional Law — Natural Streams — Right of Fishery— Eminent Domain.</p> <p>Colo. Sess. laws, 1903, p. 233, c. 112, providing, “that the public shall have the right to fish in any stream in this state, stocked at public expense, subject to actions in trespass for any damage done property along the bank of any' such stream,” is in contravention of §15, art. 2, of the constitution, prohibiting the taking of private property for private or public use without just compensation, in so far as it attempts to make lawful a trespass by one man on the lands of another, and is clearly in conflict with the laws of congress relating to the disposition of the public domain. — P. 152.</p>

Eon. Jesse G. Northcutt, Judge.* Action, by Frank Gr. Patterson and others against the Fort Lyon Canal Company and others. From a judgment dismissing the action, plaintiffs appealed.

<p>1. Practice in Criminal Cases — Information—Grammatical Error.</p> <p>Grammatical errors should be disregarded if the real intention and meaning of the information is not obscured thereby. —P. 185.</p> <p>2. Information — Grammatical Error — Motion in Arrest.</p> <p>A motion charging that accused “did then and there in and upon the body of one Winnie Adams, feloniously, unlawfully, wilfully, and of his malice aforethought, commit an assault, and-she, the said Winnie Adams, then and there feloniously, unlawfully, wilfully, and of his malice aforethought, did kill and murder,” though subject to criticism because of the wrongful use of the pronoun she, which at most amounts only to a grammatical error, under Mills’ Ann. Stats., §1433, providing that no motion in arrest of judgment shall be sustained for any matter not affecting the merits of the offense charged, is sufficient as against a motion in arrest of judgment. — P. 186.</p> <p>3. Practice in Criminal Cases — Homicide—Circumstantial Evidence — Instructions.</p> <p>Where the evidence in a trial for homicide showed that a witness and the defendant were standing just outside of a house talking, and the defendant had his hand on his pistol when the deceased stepped out and called witness, who walked towards her four or five steps, at which time a shot was.fired, killing deceased and striking witness on the finger, and almost at the same time witness saw defendant holding a pistol aimed in that direction; held, that while the witness was not looking at defendant at the instant the latter fired his pistol, yet the interval was so short between the time that witness saw defendant with his hand upon the pistol and the time he heard the report and felt the effect of the bullet on his finger and saw the position in which defendant held the pistol immediately upon the shot being fired, that such evidence is not circumstantial within the meaning of 3 Mills’ (Rev.) §1776, providing that no person shall suffer the death penalty who shall be convicted' on circumstantial evidence alone, and therefore the court properly charged the jury that the death penalty might be inflicted. — P. 190.</p> <p>4. Same — Murder in Second Degree — Instructions.</p> <p>An instruction, on a trial for homicide, stating that the jury might presume that accused intended the usual and ordinary consequences as the result of his act, and if they found from the evidence that accused intentionally fired a loaded pistol at deceased, and that the bullet struck her and inflicted on her a mortal wound, they were at liberty to imply that accused feloniously, and of his malice aforethought, killed and murdered deceased; and authorizing in case of such finding, a verdict of murder in the second degree, was not erroneous, for it left to the jury to determine from ' the evidence whether defendant intentionally fired the fatal shot.- — P. 191.</p> <p>5. Same — Instructions—Refusal to Give.</p> <p>It is not error to refuse requested instructions, although correct, when 'embodied in substance in other instructions given. —P. 193.</p> <p>6. Same — Instructions not Based on Evídénce.</p> <p>Where on a trial for homicide there was no evidence that the killing was the result of accident or carelessness in the handling of a pistol by' defendant, and, in addition, defendant denied all knowledge of the shooting, instructions tendered, directing the jury to acquit if the killing was accidental, were properly refused. — P. 194.</p> <p>7. Same — Argument of Counsel — Comment on Evidence.</p> <p>Where in a trial for homicide the evidence showed that sometime previous to the shooting of deceased, defendant had voluntarily engaged in another shooting affray; that he owned and carried a gun in a peaceable community without any legitimate excuse; that on the night of the killing he had drawn a gun on a third person, and later, in order to 'enforce a demand, had fired into the air; that on the same night he was seen outside of his own house with a gun in his hand, while carrying a bucket of coal, was sufficient to justify the district attorney in stating, in his argument to the jury, that “Defendant may have had a good reputation, but he has gone wrong. He has gone out there and established a reputation for being a gun man.” — P. 194.</p>

<p> Error to the District Court of Cheyenne County. </p> <p> Eon. E. G. Lunt, Judge. </p> <p>Action by William E. Austin against Henry Van Loon. Prom a judgment in favor of defendant, plaintiff brings error.</p>

<p> Appeal -from the District Court of Pueblo County. </p> <p>Eon. John E. Voorhees, Judge. ■</p> <p>Action by W. L. Graham, as trustee, and others, against Byrón B. Burton. From a judgment for plaintiff, defendant appeals.</p>

Appeal from the District Court of Arapahoe County. Hon. Booth M. Malone, Judge. Action by Joseph Y. Fowler and others, doing business as,Fowler and Company, against McPhee & McGinnity. From a judgment in favor of plaintiffs, defendants appeal.

<p> Appeal from the County Court of Arapahoe County. </p> <p> Hon. R.D. McLeod, Judge. . </p> <p>Action by Carrie Hummer against Tbe Prudential Insurance Company of America. From a judgment for .plaintiff, defendant appeals.</p> <p>Decision en banc.</p>

<p> Appeal from the County Court of Jefferson County. </p> <p> Hon. Joseph Mann, Judge. </p> <p>Action by Laura P. Charles against The Colorado and Southern Railway Company. Prom a judgment in favor of plaintiff, defendant appeals.</p>

<p>1. Railroads — Damages—Killing Stock — Evidence.</p> <p>In an action against a railroad company for killing a horse, there' was no prejudicial error in permitting a witness, without qualifying as an expert concerning the market value of horses in that vicinity, to testify as to the quality, and not the money value, of plaintiff’s horse where other competent witnesses on the subject of values showed, the horse to be worth as much as, or more than, that returned by the jury. — P. 226.</p> <p>2. Same — Killing Stock — Negligence—Evidence.</p> <p>In an action against a railroad company for killing a horse, the negligence relied on by plaintiff being the failure' of defendant’s servants to make any effort to stop the train before colliding with the horse, as claimed might have been done by the use of reasonable care, evidence that the train was late and was running at the rate of twenty-five miles an hour, the jury being properly instructed that such facts did not constitute proof of negligence, was admissible as throwing light, in connection with other evidence in the case, upon the particular acts' of negligence on which, it seems, plaintiff relied. — P. 226.</p> <p>3. Same — Damages—Evidence—Speed of Train.</p> <p>In an action against a railroad company for killing a horse, the court did not err in permitting a witness, who was not an expert, to testify to the speed of the train, as one of ordinary experience familiar with trains and possessed of a knowledge of time and distance without being skilled in handling trains, is a competent witness as to the velocity. That he was not an expert goes to the weight of his testimony. — P. 227.</p> <p>4. Same — Killing Stock — Negligence—Evidence—Sufficiency.</p> <p>The question on review is not as to the weight of the evidence, or whether the facts were detailed correctly by the trainmen or by plaintiff’s witnesses, as the credibility of the witnesses and the weight of evidence were for the jury; but there was evidence tending to show that the trainmen made no effort to stop the train, and because of such neglect the injury occurred; in other words, the evidence before the jury was legally sufficient-to sustain the verdict, though were we the triers of the fact, we might not agree with their decision. — P. 228.</p> <p>5. Same — Trial—Instructions—Failure to Request — Error Cured by Other Instructions — Nondirection.</p> <p>In an action against a railroad company for killing a horse, at plaintiff’s request, the jury were instructed that if defendant through its negligence».or that of its servants, killed the horse, they should find for plaintiff. No instruction was given, or requested, defining negligence, but at request of defendant the jury were told that the burden was on the plaintiff to establish that the death of the horse resulted from the failure of the defendant’s employees to exercise ordinary care to stop the train, so that defendant was not prejudiced by the omission, for while negligence' was not defined, the jury were instructed as to the care, which is the antithesis of negligence, that the defendant was bound to exercise; and the omission from the first instruction of the necessary statement that the negligence, if established, must have been the proximate cause of the injury, was nevertheless inserted in the later instructions, and hence the alleged error was cured, for at most, such alleged error consisted of nondirection, and not misdirection. — P. 228.</p> <p>6. Same — Trial—Instructions not Based on Evidence — Degrees of Negligence.</p> <p>In an action against a railroad company for killing a horse, it was proper to refuse to instruct on contributory negligence, where there was no evidence supporting it; nor would it have been proper to have instructed that the defendant must have been guilty of gross negligence, as the doctrine of degrees of negligence, such as slight and gross, does not prevail in this jurisdiction. — P. 230.</p>

Hon. M. 8. Bailey, Judge. Action by the Board of County Commissioners of the county of Fremont against the city of Colorado . Springs to have taxes levied upon certain property of the defendant. From a judgment in favor of plaintiff, defendant appeals. En bcmc.

<p> Appeal from the District Court of .San Miguel County. </p> <p> Hon. Theron Stevens, Judge. </p> <p>Action for an accounting by Mattie J. Zubler against Frank P. Mogenson. From a judgment in favor of plaintiff, defendant appeals.</p>

Error to the District Court of Saguache County. Eon. Jesse G. Northcutt, Judge. Action by Tbe Mortgage Trust Company of Pennsylvania against D. J. Elliot, as administrator of the estate of William B. Clancy, deceased. Prom a judgment in favor of defendant, plaintiff brings error.

Hon. Frank W. Owers, Judge. Action by B. F. Stickley against Patrick Mulrooney and others. An order directing that part of the sum deposited in court be paid by the clerk to defendants, plaintiff appeals.

<p>Appellate Practice — Judicial Notice — Live Question.</p> <p>■When, the appellate court takes judicial notice that an election precinct has been established, a mandamus proceeding to compel the board of county commissioners to establish such precinct pending upon review in such court will be dismissed, there being no live question for determination. — P. 247.</p>

<p>1. Writ of Error — Record—Final Judgment.</p> <p>In an action against defendants to enjoin them from using a certain ditch, after making a temporary injunction perpetual, the court was adjourned, but on the following day the judge', by ’phone, instructed the clerk to modify such judgment. Thereafter plaintiff moved to restrain the clerk from entering the order as modified, which motion was odenied, and plaintiff excepted and made application to this court for a writ of error to review the judgment, assigning as error the court’s refusal to restrain the clerk from entering the modified judgment, and alleging that the order for modification was void because not rendered in open court. Defendant in error urges that the writ of error in this case does not run to a final judgment, and, therefore, this record cannot be reviewed. Held, that as the record contains all the proceedings and orders made in the case, including the judgment as originally rendered and as modified, there is presented for review the validity of a final judgment, to wit, the judgment as modified. — P. 257.</p> <p>2. Judgment — Correction of Same During Term.</p> <p>The court has' power not only to correct, but to change its judgment' during the term; and has power at any time to correct the record, making it speak the Iruth. — P. 258.</p> <p>3. Judgment — Judges—Acting Outside of Court.</p> <p>A judge has no authority to alter a judgment outside the court which was previously rendered in open court, and such an amended judgment is void and may be vacated at the same or any subsequent term. — P. 260.</p>

<p> Appeal from the District Court of El Paso County. </p> <p> Hon. Loids W. Cunnmgham, Judge. </p> <p>Action by E. C. Campbell against Robert A. Christy. From a judgment in favor of plaintiff, defendant appeals..</p>

Hon. Theron Stevens, Judge. An action by tbe First National Bank of Denver against tbe Board of County’Commissioners of Mont-rose county. From a judgment dismissing an appeal from an order of tbe board of county commissioners denying relief, petitioner brings error.

<p> Error to the District Court of Teller County. </p> <p> Hon. Louis W. Cunningham, Judge. </p> <p>Action, by William DeVoe against The Monarch ■ Mining and Development Company. From a judgment in favor of plaintiff, defendant brings error.</p>

<p>1. Railroads — Passengers—Damages—Personal Injuries — Negligence — Approximate Cause.</p> <p>Plaintiff on a crowded ear stood with his hand resting on the door jam. There were people between him and the door and others upon the steps. The head of the man upon the lower 'step reached to the thigh'of the plaintiff. Tl e conductor, in pushing his way through the crowd, pressed the plaintiff against a third person sitting in the seat, who gave plaintiff a push, throwing him over the head of the man who stood upon the lower step. Held, that the approximate cause of the injury was, as a matter of law, the action of a third person, for which the railroad company was not liable. — P. 289.</p> <p>2. Same — Damages—Personal Injuries — Evidence — Directing Verdict.</p> <p>In an action for personal injuries, where from all the evi- ' dence the court is able to see that the negligence complained of was not the approximate but the remote cause of the injuries, the court must direct a verdict for the defendant, for if such evidence had been submitted to the jury and the verdict had been rendered in favor of the plaintiff, it would have been the duty of the court to set it aside. — P. 292.</p>

<p> Appeal from the District Court of Phillips County. </p> <p> Hon. E. E. Armoiir, Judge. </p> <p>Action by E. L. Donnelly against Mary F. Lowe and William Lowe. From a judgment in favor of plaintiff, defendant appeals.</p>

<p> Appeal from the County Court of Otero County. </p> <p> Hon. Marion F. Miller, Judge. </p> <p>Action by G. F. Patrick against R. W. Brown. From a judgment in favor of defendant, plaintiff appeals.</p>

Hon. John T. Shumate, Judge. An action for injunction by Samuel Livezey, Thomas King, Sarah F. Armstrong and Fred F. Rothschild against Frank S. Squire, water commissioner for district 39, Garfield county, Colorado. From a judgment in favor of plaintiffs, defendant appeals.

Ron. Theron Stevens, Judge. An action by the people npon the complaint of Peter Fitzpatrick, to place one Flohr under bond to keep the peace. From a judgment taxing the costs against him, Fitzpatrick appeals. '

Hon. Jas. A. Orr, Judge. ■ Action by tbe people of the state of Colorado, for tbe use of the town of Manitou, against B. B. Creighton and William Wagoner. From a judgment in favor of plaintiff, defendants appeal.

<p> Error to the District Court of Teller County. </p> <p> Hon. Louis W. Cunningham, Judge. </p> <p>Action by Fred C. Adams against the city of Cripple Creek. From- a judgment for plaintiff, defendant brings error.</p>

Appeal from the County Court of Teller County. Hon. Albert 8. Frost, Judge. Action by O. A. Pechstein and E. D. Pechstein, copartners as O. A. Pechstein Cigar Company, against H. H. Spears and T. C. Spears, copartners as Spears & Spears. From a judgment in favor of plaintiff, defendants appeal.

<p>1. Street Railway — Right of Traveler in Vehicle.</p> <p>A person in a vehicle on a public street has a right to cross street railroad tracks whenever and wherever he may have occasion to do so, and this right of crossing the tracks is not confined to street crossings. — P. 335.</p> <p>2. Same — Duty of Traveler — Steam Railways.</p> <p>It is the duty of a, traveler to look out for himself and to exercise such ordinary care as would be exercised by reasonable persons under attendant circumstances, but the duty imposed upon persons crossing a steam railway track, to stop, look, and listen, is not rigidly applied to persons traveling a street used by a street railway. — P. 335.</p> <p>3. Same — Pleading—Collision with Vehicle — Contributory Negligence.</p> <p>A complaint alleging that the driver, while attempting to cross a street railway track on'e hundred and fifty feet ahead of car approaching up a steep grade, was detained because the tracks were raised six inches above the surface of the street, and that the plaintiff did not know and had no reason to believe that the horse drawing the wagon would be unable to safely make the crossing, or that wagon would be detained on the track, negative any imputation of negligence of the driver on account of the raised track.- — P. 336.</p> <p>4. Same — Duty of Motorman — Negligence of Company.</p> <p>It is the- duty of the motorman to exercise ordinary care and diligence to ascertain whether the track ahead is clear, and to avoid striking persons or objects upon the track when by the exercise of ordinary care and diligence it is reasonably possible to , do so; he is bound to notice the presence of vehicles and pedestrians ahead of his car, being watchful for that purpose, and if he has reason to apprehend danger, he should regulate the speed of the car so that it might be quickly stopped should occasion require it; and if through his careless or negligent failure to apply such means as the exigencies of the case require to stop the car, and a collision occurs, the company will be liable for the damage occasioned thereby, notwithstanding the prior negligence of the injured party. — P. 336.</p> <p>5. Same — Last Chance — Complaint—Demurrer.</p> <p>Under the allegations of the complaint, the doctrine of “last real chance” cannot be invoked by the defendant, as the complaint charges in substance that the imminency of the danger was unknown to the plaintiff, his back being toward the approaching car, and that by reason of the negligence of the defendant in not sounding an alarm or in any way warning the near approach of the car to the vehicle in which plaintiff was seated, he was without knowledge of such danger. Any imputation of negligence on account of the raised track is negatived by the allegations of the complaint, and such allegations are sufficient to charge the defendant with actionable negligence as the direct and proximate causes of the injuries complained of; and the court therefore erred in sustaining the demurrer, — P. 338.</p>

<p> Appeal from the District Cou-rt of Rio Grande County. </p> <p> Hon. Charles C. Holbrook; Judge. </p> <p>Action by the Costilla County Bank against William M. Willis. From a judgment in favor of defendant,. plaintiff appeals.</p>

Hon. C. J. Scharnhorst, Judge. Action by John Imes against Jessie Goodykoontz. A motion to dismiss the action for failure to file a bond for costs -was denied and defendant appeals.

Hon. William P. Seeds, Judge. Action by A. B. Whitmore and G. C. Blakey against John C. Gaston. From a judgment setting aside default judgment in favor of defendant and dismissing the action, plaintiffs appeal.

<p>Former Opinion Followed.</p> <p>The judgment in this case reversed and remanded for the - reasons stated in Whitmore et .al. v. Gaston, ante, p. 345.</p>

Eon. Frank W. Oiuers, Judge. Action by Thomas Kirkwood, administrator, against Isaac C. Palmer. Prom a judgment of the district cqurt dismissing an appeal from the county court, and from a judgment for defendant, plaintiff appeals.

<p>1. Quieting Title — Pleading—Proof.</p> <p>While plaintiff, in an action to quiet title, in order to maintain the action, must aver his possession coupled with title, the duty devolves upon defendant of asserting an adverse interest in himself and specifying its nature; and before he can put plaintiff upon proof touching his possession and title, he must plead accordingly, for a simple denial in the answer of plaintiff’s possession is not sufficient to put plaintiff upon proof touching the same. — P. 352.</p> <p>2. Tax Sales — Notice—Proof of Publication — Affidavit.</p> <p>Unless an affidavit of publication of a notice of a tax sale shows that copies of each number of the paper in which the notice was published were delivered by carriers or transmitted by mail to each subscriber of the paper, according to the custom and mode of business in the office, it is insufficient, and a sale based thereon is invalid. — P. 353.</p>

Hon. Wm. P. Seeds, Judge. Action by Max Cohen and Leon Cohen, copartners under the firm name of Max Cohen and Brother, against The Hassell Iron Works Company. From, a judgment in favor of plaintiffs, defendant appeals.

<p> Appeal from the District Court of Weld County. </p> <p> Hon. Christian A. Bennett, Judge. </p> <p>Action by Minnie B. Mayne against The Big Thompson and Platte River Ditch Company. Prom a judgment in favor of plaintiff, defendant appeals.</p>

<p> Appecil from the County Court of Summit County. </p> <p> Hon. Wm. Thomas, Judge. </p> <p>Action by Mark E. Carr against Willoughby and Company. From a judgment for defendants, plaintiff appeals.</p>

<p>1. Husband and Wife — Liability for Family Expenses — Servants.</p> <p>Under 3 Mills’ (Rev.) Stats., §S021a, providing that the expenses of the family are chargeable on the property of both husband and wife, domestic servants employed in the,family and forming part of the household are a part thereof, and both husband and wife are liable for supplies used in part for such servants. — P. 364.</p> <p>2. Same — Family Expenses — Burden of Proof.</p> <p>In an action against a husband and wife for supplies furnished for the use of a family, the burden of proof, if any part of the supplies was used for servants or laborers boarding elsewhere than in the household, and so not a part of the family, was on defendants. — P. 364.</p> <p>3. Same — Family Expenses — Statute of Limitations1 — Pleading.</p> <p>In an action against a husband and wife to recover for supplies used in the family, a denial in the answer that any of the goods sold or delivered after a date more than six years prior to the commencement of the action was used in the family, was insufficient as. a plea of limitations, as the defense of the statute of limitations is affirmative, and must he specially pleaded. — -P„ 365.</p>

<p>Appellate Practice — Attachment—Forthcoming Bond — Tender of Property.</p> <p>Where defendant in attachment gave a bond in accordance with Mills’ Ann. Stats., § 2715, conditioned that* on recovery of judgment by plaintiff he would redeliver the attached property or pay the full value of the same, and one of the sureties who had possession of the property offered, after judgment, to redeliver it but the redelivery was declined, liability on tbe bond was discharged, and the court having erred in the rejection of such testimony, the caus.e on appeal will be reversed and remanded. — P. 368.</p>

<p> Appeal from the County Court of Teller County. </p> <p>Eon. A. 8. Frost, Judge.</p> <p>An action by The Edward Thompson Company against Scott Ashton. From a judgment for plaintiff, defendant appeals.</p>

<p> Appeal from the County Court of Arapahoe County. </p> <p> Hon. Ben. B. Lindsey, Judge. </p> <p>Action by Tbe Victor Electric Company against George L. Stone. From a judgment for plaintiff, defendant appeals.</p>

<p>Practice in Civil Actions — Contracts—Pleadings—Evidence.</p> <p>Where a case was tried on an express contract by defendant to pay plaintiff an agreed price for machinery, and both parties ignored a cause of action on a quantum meruit contained in the complaint, the court committed no error in excluding evidence of the defendant as to the value of the machinery, although similar evidence had been admitted on behalf of plaintiff without objection. — P. 376.</p>

<p>1. Corporations — Transfer of Stock.</p> <p>1 Mills’ Ann. Stat., § 508, requiring an assignment of stock to be entered on the books of the company and the entry to disclose from whom and to whom the shares passed, is observed by an entry on the books óf a memorandum of an assignment of stock showing from whom and to whom made. — P. 381.</p> <p>2. Same — Transfer of Stock — Assignment Not Made on Certificate.</p> <p>A written assignment of 'stock, unaccompanied by the certificates, presented to the secretary of the corporation with the request that the necessary transfer be made on- the books, and he, making no objection to the absence of the certificates, certifies on the assignment under the seal that, he has made the proper transfer on the books, is good as against all persons. —P. 381.</p> <p>3. Same — Stock—Foreclosure of Lien — Statute of Limitations.</p> <p>An action upon a promissory note to recover a personal judgment, and, incidentally, to foreclose a lien on shares of stock, although involving the sufficiency of the assignment of such stock, is not an action for relief on the ground of fraud and so barred by 2 Mills’ Ann. Stat., § 2911, providing a three years’ limitation for such actions. — P. 382.</p> <p>4. Appellate Practice — Assignments of Error — Printing in Abstract.</p> <p>While the usual and perhaps better practice is to file the assignments of error attached to the transcript, yet, when they are printed in the abstract of record and filed at the same time as the transcript, it is a sufficient compliance with supreme court Rule 11. — P. 382.</p>

<p>1. Practice in Civil Actions — Courts—County. Courts — Justices of the Peace — Change of Cause of Action.</p> <p>A judgment of the county court affirming an appeal from a judgment of the justice court will not he disturbed on the ground that plaintiff was permitted to change his cause of action in the county court, where the record does not indicate what issue was tried in the justice court. — P. 384.</p> <p>2. Same — Courts—Justices of the Peace — Appeal—Trial de Novo —Evidence.</p> <p>On appeal from a justice of the peace to the county court, the trial is de novo, and any competent evidence relating to the same transaction, tried in the justice court is admissible upon the trial in the county court, and an admission of such evidence is not a change of the cause of action. — P. 385.</p> <p>3. Appellate Practice — Practice in Civil Actions — Instructions— Objections and Exceptions.</p> <p>Where the instructions are in writing, and separately paragraphed and numbered, an exception to the giving of “each and every instruction” is good as to instructions containing but one proposition of law, but it is not sufficient to present an instruction for review where it contains two or more independent and distinct propositions of law, one of which is right and _ the other or others wrong. — P. 385.</p>

Hon. N. Walter Dixon, Judge. Action by Anheuser-Busch Brewing Association against Victor de Carli and Max Schwer, revived after the death of de Carli in the name of Philip J. Hickey, as administrator. Prom a judgment for plaintiff, defendant appeals.

Appeal from the District Court of Teller County. Hon. Louis W. Cunningham, Judge. Action by C. A. Magrnder against W. O. Temple, as trustee of the estate of Thomas Keating, deceased. From, a judgment in favor of plaintiff, defendant appeals.

Hon. John T. Shumate, Judge. Prohibition proceedings brought by School District No. 13, in Garfield county, and others, against .the county superintendent of public schools of Garfield county and others.. From a judgment of dismissal, petitioner appeals.

Eon. 8. L. Carpenter, Judge. Action by T. J. O’Donnell against Tbe United States Mortgage and Trust Company and tbe executors of tbe last will of Winfield Scott Stratton. From a judgment sustaining a general demurrer to tbe complaint, plaintiff appeals.

Son. Ben B. Lindsey, Judge. Petition, by Henry Hanington for the probate of the will of James W. Westlake, deceased. Carrie W. Westlake and'others filed objections. Prom an order admitting two certain instruments to probate as the will of said testator, objectors appeal.

Hon. J. H. Voorhees, Judge. E. H. Wilson was convicted of a violation of the election law, and brings error. Decision en banc. Mr. Justice Steele and Mr. Justice Hunter dissenting.

Eon. Robert R. Ross, Judge. Election contest brought by Eugenio- Garcia against J. U. Vigil. From a decree in favor of contestant, contestee appeals. Decision en banc. Mr. Justice- Steele and Mr. Justice Gunter dissent, and Mr. Justice Goddard not sitting.

Eon. N. Walter Dixon, Judge. Action by the people on the relation of Frank I). Stoop and Andrew Nicholes against J. E. Lawson and P. J. Eeifel. From an order sustaining a demurrer to the complaint, plaintiff brings error.

Hon. N. Walter Dixon, Judge. Action by the people on the relation of Horace Amos against D. Y. Burrell and G. C. Hawkey. Prom a judgment sustaining a demurrer to> the complaints, plaintiffs bring error.

Error to the District Court of the City and County of Denver. Hon. James E. Garrigues, Judge. E. M. Johnson was convicted of having made a false report of the affairs of The Fidelity Savings Association, and he brings error.

<p>1. Practice in Criminal Cases — Rape—Force and Want of Consent.</p> <p>Section 1211, 3 Mills’ (Rev.) Stats., provides that rape is the carnal knowledge of a female forcibly and against her will, and also that every male person over a specified age who' shall carnally know any female under the age of 18 years, with or without her consent, shall he adjudged guilty of the crime of rape. Both offenses, as defined, are rape; but, in the first, the employment of force on the part of the accused against the will of the prosecutrix is an essential element; but not SO' with the second, because, where the prosecutrix is under the age of consent, force on the part of the accused and want of consent of the female are immaterial. — P. 453.</p> <p>2. Same — Assault to Commit Rape — Information—Female under Eighteen.</p> <p>- Section 1215, Mills’ Ann. Stats., makes an assault with intent to commit rape a felony, and § 1211 (Rev.) provides that every male person over a specified age who shall have carnal knowledge of a female under the age of 18 years, with or without her consent, shall be guilty of rape, so that an information charging an assault with intent to commit rape upon a female under the age of eighteen years need not allege that such assault was made with- the intent to carnally know such female forcibly and against her will. — P. 453.</p>

<p> Appeal from the District Court of Boulder County. </p> <p> Son. James E. Garrigues, Judge. </p> <p>Action by The Boulder & "White Bock Ditch Company against The Leggett Consolidated Ditch & Beservoir Company et al. Prom a judgment in favor of defendants, plaintiff appeals.</p>

<p> Appeal from the District Court of Clear Creek , County. </p> <p> Hon. A. H. De France, Judge. </p> <p>Action by Benjamin B. Healy against 'William F. Doherty. ' Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Wills — General, Specific and Demonstrative Legacies— Definitions.</p> <p>Á general legacy is .one which is payable out of the general assets of. a testator’s estate, such as a gift of money or other thing in quantity, and not in any way separated or distinguished from other things of like kind. A specific legacy is a gift by will of a specific article, or a particular part of the testator’s estate, which is identified and distinguished from all others of the same nature, and which is to be satisfied only by the delivery and receipt of the particular thing given. A demonstrative legacy partakes of the nature of both a general and specific legacy; it is a gift of money or other property charged on a particular fund in such a way as hot to amount to a gift of the corpus of the fund, or to evince an intent to relieve the general estate from liability in case the fund fails. — P. 467.</p> <p>2. Wills — Legacies—Ademptions.</p> <p>A specific bequest is subject to ademption, but such is not true of a general, or a demonstrative, legacy. — P. 467,</p> <p>3. Wills — Interpretation—Specific Bequests.</p> <p>Courts are not inclined to favor a specific bequest. If compatible with the language employed, they are disposed to interpret gifts as general, or demonstrative, legacies; but if the language is clear and unequivocal, and plainly evidences an intent of the testator to create a specific legacy, such effect must be given to that language. — P. 467.</p> <p>4. Wills — Nature of Legacies — Question of Intent.</p> <p>In ascertaining the nature of a given legacy, some, but not much, aid is to be derived from the adjudicated cases. The question is one of intent to be gathered from the language used in creating it, in the light of the circumstances of the testator and the property which he is disposing of in his will. — P. 467.</p> <p>5. Wills — Interpretation—Specific Legacies Adeemed.</p> <p>A testatrix bequeathed any and all sums that might thereafter be payable to her or her estate, as the proceeds of any insurance on her husband’s life, to .her husband’s five sisters, or such of them as should be living at the time such insurance money should be collected and received" by testatrix’ executors. Held, that the bequest was a specific legacy, and the insurance having been collected by testatrix during her lifetime and mingled with her property generally, that the legacy was adeemed. —P. 471.</p>

<p> Error to the District Court of Pueblo County. </p> <p> Hon. Louis W. Cunningham, Judge. </p> <p>Z. Y. Trine was convicted of buying city warrants, and be brings error.</p>

<p>1. Appellate Practice — Practice in Civil Actions — Findings at Variance with Pleadings and Evidence.</p> <p>A finding at variance with and outside of any issue made by tbe pleadings and unsupported by tbe evidence, is unwarranted and must be treated as a nullity. — P. 47S.</p> <p>2. Same — Practice in Civil Actions — Judgment—Findings.</p> <p>The court, by rendering judgment in favor of a partner in an action against a copartner for an interest in property acquired by tbe latter by tbe use of partnership property, must have found that the- copartner acquired tbe particular property with tbe partnership property and that be bad denied tbe former tbe right to- share therein. — P. 479.</p> <p>3. Appellate Practice — Findings—Presumptions.</p> <p>In tbe absence of a specific finding of fact to the contrary, it must be assumed that the trial court found those facts which are responsive to the issues made by the pleading and which are essential to the judgment rendered. — P. 479.</p> <p>4. Partnership — Acquisition by one Partner of Property Acquired by Use of Partnership Property — Right of Copartner to Share Therein.</p> <p>Where a partner, having possession of partnership property, uses the same to acquire property in his own name, the property so acquired inures to' the benefit ofohis copartner, and the latter may demand an interest in tbe property obtained corresponding in extent to his interest in tbe original partnership property. — P. 479.</p> <p>5. Trusts — Resulting Trusts — Partnership—Right of Copartners.</p> <p>The interest which a partner has in property acquired by a copartner having possession and control of partnership property and who used the same in the acquisition of the particular property, is a resulting trust, but in order 'to enforce such a trust, the contract or transaction out of which it arises must be established by clear, certain and convincing evidence. — P. 479.</p>

<p>1. Appellate Practice — Objections to Evidence — Sufficiency of Objections.</p> <p>An objection to evidence -which specifies no grounds, nor suggests to the court any reasons why it is inadmissible, will be disregarded on appeal. — P. 482.</p> <p>2. Witnesses — Refreshing Memory from Books of Account.</p> <p>Where a sufficient foundation has been laid for the admission of books of account, it is not error to allow a witness to refer to them to- refresh his memory, or to read the entries therein to the jury. — P. 482.</p> <p>3. Evidence — Admissions of Counsel in.Former Trial — Use of at' Subsequent Trial.</p> <p>Where, on a'former trial of an action for services, defendant’s counsel admitted that, if the services were performed without a specific contract, the charges made therefor were reasonable, if such admission was a general one and without limitation, the defendant is bound thereby in a subsequent trial; while if the admission was for the purpose of that trial only, and was so understood at the time by the parties, it is not binding upon the defendant at a subsequent trials — P. 485.</p> <p>4. Appellate Practice — Cumulative Evidence — Harmless Error. Where, in an action for services, plaintiff, without any objection being made to his qualification, testifies to the value of his services, and defendant offers no evidence in reference thereto, the admission of evidence that defendant’s attorney. at a former trial admitted that such charges for services were reasonable, even if improperly admitted, is not grounds for reversal, as the latter is merely cumulative. — P. 486.</p>

Hon. Ben B. Lindsey, Judge.' T. A. McClelland was convicted of violating a city ordinance prohibiting the keeping open of barber shops on Snnday, and brings error. Decision en banc.

Appeals from the District Court of Teller County. Hoñ. Robert E. Lewis, Judge. Appeal by tbe,board of county commissioners of Teller county, in tbe first ease, and by M. B. Lysigbt, county assessor, in' tbe second case, from tbe judgment of tbe district court reducing tbe assessments of The Pinnacle Gold Mining Company. Decision en banc.

Ron. Robert E. Lewis, Judge. Appeal by M. B. Lysight, as county assessor, and the board of county commissioners of Teller county from a judgment of the district court reducing the assessment of taxes against The Des Moines Cold Mining Company. Decision en banc.

Hon. Robert E. Letuis, Judge. . Appeal by M. B. Lysigbt, as county assessor, and the board of county, commissioners of Teller county from a judgment of the district court reducing an assessment of taxes against The Jennie Sample Consolidated Gold Mining Company. Decision en banc.

Hon. Robert E. Lewis, Judge. Appeal by the board of county commissioners of Teller county from a judgment of the district court reducing an assessment of taxes against The Ben Hur Gold Mining Company. Decision en banc.

Hon. Theron Stevens, Judge. Writ of error sought by The First National Bank of Montrose to review the judgment of the district court of Montrose county refusing to reduce an assessment of taxes against the plaintiff in error.

<p> Appeal from the District Court of Teller County. </p> <p>. Hon. William P. Seeds, Judge.</p> <p>Action by Kate Firstbrook against The Vindicator Consolidated Gold Mining Company. From a judgment for plaintiff, defendant appeals.</p> <p>Decision en bam.</p>

<p>Master and Servant — Injury to Servant — Contributory Negligence.</p> <p>Where the orders and instructions of a mining company required its employees, except those about to fire shots, to leave their places of work at ten minutes before noon, and to reach the shaft by noon, an employee, knowing of such instructions and of the custom of firing shots immediately after such time, and knowing of the place where such shots were being fired, who negligently failed to obey such instructions and was injured by a shot fired from three to five minutes after noon at such place, is guilty of contributory negligence and cannot recover damages for injuries so received. — P. 515.</p>

<p>1. Eminent Domain — Water Rights — Waste Water — Right of Way — Statutory Construction.</p> <p>In an action to condemn a right of way for an irrigating ditch to convey the waste and surplus water from the end of a ditch on defendant’s land, the statutory provision for enlarging ditches has no application. — P. 521.</p> <p>2. Same.</p> <p>Sections 2256, 2257, Mills’ Ann. iStats., provide for obtaining the use of water and for securing rights of way and are in no sense prohibitive, and have no application to a proceeding to condemn a right of way for a ditch to carry waste and surplus water from the end of a ditch on another’s land. — P. 521.</p> <p>3. Eminent Domain — Water Rights — Waste Water — Right of Way — Defenses.</p> <p>In a proceeding to condemn land for an irrigation ditch to convey waste and surplus water from the end of a ditch on defendant’s land to plaintiff’s land, the fact that there may be a doubt as to whether or not an appropriation of water can be made elsewhere than from the stream does not affect plaintiff’s power to condemn land for such purpose as against respondent, as the latter cannot raise a question that does not concern him or which rests solely between plaintiff and other appropriators. —P.,521.</p> <p>4. Same.</p> <p>Where, in an action to condemn a right of way for a ditch to carry waste and surplus waters, the petition and proof show the necessity for the use of the water and that water is being wasted which petitioner can obtain, neither the question of whether or not there is sufficient water for petitioner’s use, nor whether or not the plan is a practicable or feasible one, can be determined in such proceeding. — P. 522.</p> <p>5. Same.</p> <p>In an action to condemn a right of. way for a ditch to carry waste and surplus water from the end of a ditch on deféndant’s land to plaintiff’s land, the various questions which may arise as to the right to appropriate such water cannot be determined, as this would necessarily involve the rights of other appropriators, who would not be before the court. In any event, it is no concern of the defendant as to what becomes of the surplus water after he has used all to which he is entitled. — P. 522.</p> <p>6. Eminent Domain — Vested Water Rights — Right of Way.</p> <p>Since the right to the use of water cannot become vested until it has -become appropriated, and the appropriation cannot become complete until the water has been applied to a beneficial use, and the latter cannot be done until a ditch has been constructed, it necessarily follows that, the securing of a right of way must precede a vested right to the water. — P. 522.</p> <p>7. Eminent Domain — Non-owner of Water Right — Right of Way —Nonsuit.</p> <p>In a proceeding to condemn a right of way for an irrigation ditch, plaintiff’s failure to prove that she is the owner of a water right or has made an appropriation of water is not a ground for nonsuit, as an action under the eminent domain act cannot be converted into an action to quiet title. — P. 523.</p> <p>8. Eminent Domain — Water Rights — Right of Way — Plea of Res Adjudicata.</p> <p>In a proceeding to condemn land for an irrigating ditch, a -judgment theretofore rendered in a suit between plaintiff and defendant’s grantor, involving the right of plaintiff to construct such ditch without first obtaining a right of way therefor, cannot be set up as a plea of res adjudicata. — P. 523.</p> <p>9. Eminent Domain — Water Rights — Right of Way — Condemnation Proceeding — Attorney’s Fees.</p> <p>'In a proceeding to condemn a right of way for an irrigating ditch, plaintiff cannot he compelled to pay defendant’s attorney fees, as the statute makes no such provision. — P. 524.</p>

<p> Appeal from the District Court of Gunnison County. </p> <p> Hon. Theron Stevens, Judge. </p> <p>Action by F. F. Cochems against C. F. Sills. From a judgment in favor of plaintiff, defendant appeals.</p>

<p> Error to the District Court of Arapahoe County. </p> <p> Eon. John I. Mullins, Judge. </p> <p>Action by J. MAD. Livesay, administrator of tbe estate of Edwin P. Estes, Alva C. May, administrator of the estate of Moses G. Palmer, and The Post 'Printing and Publishing Company v. The First National Bank of Denver, the J. P. Smith Shoe Company, Alexander Little, George E. Noyes, and Frank Maxwell, copartners, doing business as Little, Maxwell and Company, and Edward Chesley and William A. Euggs, copartners, doing business as Chesley and Buggs. From a judgment for defendants, plaintiffs bring error.</p>

<p>Sales — Rescinding—Replevin—Conditions Precedent.</p> <p>Where, in an action to replevin goods from chattel mortgagees upon the ground that such goods had been fraudulently procured from plaintiff by the mortgagor and that the mortgagees were cognizant of such fact, there was no proof showing that any representations were made by the purchaser as to its solvency or insolvency, or as to its knowledge of its condition, or as to the intention with which it purchased the goods, the court properly directed a verdict for defendants.- — P. 537.</p>