Volume 38 — Colorado Reports

<p>Appeal from the District Court of Arapahoe County. Hon. John I. Mullins, Judge. ■</p> <p>Action by John T. Wilson against Gr. GL Liebbardt, The Liebhardt Commission Company, L. F. Liebhardt and W. W. Booth. From a judgment for plaintiff, defendants appeal. •</p>

Booth M. Malone, Judge. Action by Emma Emmericb against Andrew Wliitebead and Edwin K. Wliitebead, copartners under tbe firm name of Wliitebead Brothers. From, a judgment for plaintiff, defendants appeal.

<p> Error to the District Court of,[ Gilpin County. Hon. A. H. DeFrance, Judge. </p> <p>Action by William H. Kelly and Joseph B. Hafer against William J. Lewis. From a judgment for defendant, plaintiffs bring error.</p>

Hon. Theron Stevens, Judge. Warren Perry, George Perry, Ben Perry and Andrew Perry were convicted of larceny, and, from snch conviction, the first three bring error.

Hon. John I. Mullins, Judge. Action by Frank Anderson and George É. Smith against Thomas A. Uzzell, William Lawson and Eugene McCarthy, individually and as members of the board of county commissioners of the city and county of Denver. From a judgment in favor of plaintiffs, defendants bring- error.

<p> Appeal from the County Court of Delta, County. </p> <p> Eon. Milton B. Welch, Judge. </p> <p>Horace K. Braisted was convicted of a violation of a municipal ordinance, and lie appeals.</p>

<p>Former Opinion Followed.</p> <p>The judgment in this ease is affirmed in accordance with the' opinion of Braisted v. People, ante, p. 49.</p>

Appeal from the District Court of Weld County. Son. James E. Garrigues, Judge. Action by August C. Boye, Rebecca J. Eaton and Bruce Gr. Eaton, substituted for Benjamin H. Eaton, deceased, against Jane P. Blake and Rickard L. Blake. Prom a judgment for plaintiffs, defendants appeal.

<p> Appeal from the District Court of Arapahoe County. </p> <p> Hon. F. T. Johnson, Judge. </p> <p>Action by Walter C. Mitchell and William T. Lambert against Ida Danielson and Anton Danielson. From a judgment in favor of defendants, plaintiffs appeal.</p>

<p>1. Appellate Practice — Verdicts—Based on Conflicting Evidence —Not Disturbed on Appeal.</p> <p>Where a question of fact, upon which the testimony was conflicting, was submitted to the jury under proper instructions, the verdict will not be disturbed on appeal. — 3?. <>$.</p> <p>2. Bills and Notes — Consideration—Stock Margins — Gambling Statute — Construction—B rokers.</p> <p>Appellant, the owner of 5000 shares of mining stock, instructed a broker to buy 5000 additional shares for him, and deposited the stock owned by him as security for the purchase price, the rule being that a fifty per cent, margin was required to protect such transaction. The stock declined in value, and additional margins were demanded until appellant finally gave his promissory note for $250, as a margin, payable to himself and indorsed by him, and this note was assigned after maturity to appellee. The stock at all times remained the property of appellant and subject to his order on -payment of his indebtedness to the broker. Held, that such transaction does not come within the inhibition of Mills’ Ann. Stats., § 1344, providing, in substance, that all contracts, promises, agreements * * * and notes * * * made * * * where the whole or any part of the consideration shall be for money or property won by gaming, shall be utterly void; nor does it come within the rule that “All bargains for the purchase and sale of things, as 'stocks, etc., where it is the- understanding of the parties, whether expressed or not, that the things are not to be delivered, .but at the agreed time the differgnce between their market value at the two periods are to be adjusted, are illegal as against public policy.” — P. 68.</p>

<p> Error to the District Court of the City and County of Denver. . </p> <p> Eon. John I. Mullins, Judge. </p> <p>Action by Mabel D. Piggot against Charlotte Wheeler Byrain. Prora a judgment for plaintiff, defendant brings error.</p>

<p>1. Corporations — Conveyances—Statutory Construction.</p> <p>The statute of this state which authorizes a corporation to transfer property through its president, or other head officer, does not prohibit any other mode of transfer, nor was it so intended; and it is entirely competent for a corporation to transfer its property through such agency as it may designate. — P. 75.</p> <p>2. Corporations — Secretary Custodian of Seal — Evidence—Presumption.</p> <p>The law makes the secretary of a corporation the custodian of its seal, and when his name is 'signed to an instrument and a corporate seal is attached, it must be presumed that such seal is the company’s seal and that the secretary sealed the instrument with the authority of the company; and this presumption is not overcome by the mere fact that no vote of directors, or other body exercising the corporate authority, is shown. — P. 75.</p> <p>3. Corporations — Conveyances made by Secretary — Validity.</p> <p>The secretary of a corporation executed a note and a real estate mortgage securing it for money borrowed by the corporation, the mortgage bearing the name of the corporation, its seal, and the name of the secretary, and the acknowledgment that he signed, sealed, and delivered the said instrument as his free and voluntary act, and as the free and voluntary act of the said corporation, for the uses and purposes therein set forth. Held, that the acknowledgment by the secretary is prima facie proof that the note and mortgage were signed by the proper officers and the seal attached to the mortgage is the corporate "seal of the company, in accordance with the law making the secretary of a corporation the custodian of its seal and with Mills’ Ann. Stats., § 443, providing that an instrument relating to or affecting the title to real property, acknowledged before a proper officer, shall be prima facie evidence of its proper execution. — P. 75.</p>

<p>1. Game — Replevin—Right to Prosecute — Burden of Proof.</p> <p>In an action of replevin for deer bides by tbe state game and fisb commissioner under 3 Mills’ (Kev.) Stats., § 2061, tbe burden is upon tbe defendant to allege and prove facts which entitle bim to tbe possession of tbe bides under the law.- — P. 78.</p> <p>2. Former Opinion Followed.</p> <p>This case is reversed and remanded with instructions to enter judgment again'st defendant, in accordance with Hornbeke V. White, 20 Colo. App. 13. — P. 78.</p>

<p> Error to the District .Court of Clean- Creek County. </p> <p>Hon. A. H. De France, Judge.</p> <p>Action "by John Owen' against Lombard Williams, Charles Brewer and The John Owen Mining and Milling Company, a corporation. From a judgment in favor of defendant, plaintiff brings error.</p>

<p> Appeal from the District Court of El Paso County. </p> <p> Hon. Louis W. Cunningham, Judge. </p> <p>Action by Tbe Alert Gold Mining- Company against J, W. D. Stovell. From a judgment for plaintiff, defendant appeals.</p>

<p> Appeal from the District Court of El Paso County. </p> <p> Eon. Louis W. Cunningham, Judge. </p> <p>Action by A. D. McDonald, administrator, against W. O. Wirt, J. M. Roseberry, John J. Maehl, and R. L. Jones. From a judgment for defendants, plaintiff appeals.</p>

<p> Appeal from the District Court of Larimer County. </p> <p> Hon. Christian A. Bennett, Judge. </p> <p>Action by Diana Yetter against tbe city of Fort Collins. From- a judgment for plaintiff, defendant appeals.</p>

Hon. Ben B. Lindsey, Judge. Action by William E. Clark against Ralph W. Smith. From a judgment in favor of plaintiff rendered by the county court on appeal from a justice of the peace, defendant appeals.

<p>Water and Water Rights — Decrees—Priorities—Modification— Different Owners in Ditch — Statutory Construction.</p> <p>The Colorado irrigation statutes of 1879 and 1881 do not contemplate a determination, as between themselves, of the rights of the different owners of a ditch to any particular quantity of water, but the object of these statutory proceedings is to determine the relative priorities of the different ditches in a water district; and, therefore, parties cannot obtain a modification of a decree entered in such proceedings, the effect of which would be to adjudge them to be the owners of a certain amount of the aggregate quantity of water awarded to the ditches themselves, as against other claimants of the same priority. Such rights must be determined in an appropriate action brought for that purpose. — P. 93.</p>

<p>Appeal to■ the District Court of Arapahoe County.</p> <p> Hon. Samuel L. Carpenter, Judge. </p> <p>Action by Tbe Colorado Eastern Railroad Company against Tbe Burlington and Colorado Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

Appeal frtim the District Court of Bio Blanco County. Hon. John T. Shumate, Judge. Action by Tbe Baer Brothers Land and Cattle Company against H. T. Wilson, A. D. Qnimet, B. C. Howey and.H. S. Howey, for permission to change the point of diversion of the water of a stream. From a judgment denying the application, the applicant appeals.

Hon. Chas. C. Holbrook, Judge. Proceedings by David E. Glasgow to change-the point of diversion of his right to the nse of the water from a creek to a place higher np- the stream, to which J. J. Crippen filed objections. From a decree in favor of petitioner, Crippen appeals.

<p> Appeal from the District Court of El Paso< County. </p> <p>Hon. Louis W. Cunningham, Judge.</p> <p>Action by The City of Colorado Springs against The Colorado & Southern Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Practice in Civil Actions — Pleading—Amendments—Laches.</p> <p>Where, on a prior appeal, it had been held that evidence was inadmissible, in the absence of a plea to prove an estoppel, the defendants on retrial are not entitled to amend their answer by pleading such estoppel where the application to so amend is not made until the close of the testimony, since, knowing of the ruling of the appellate court, the application should have been made previous to such trial. — P. 117.</p> <p>2. Foreign Corporations — Doing Business in State — Single Act of Business — Payment of Fees — Right to Sue — Statutory Construction.</p> <p>The single purchase of mining machinery in this state by a foreign corporation is not doing business within the meaning of chapter 51, Sess. Laws 1897, prohibiting such .corporation from doing business in, the state until the fee for filing the articles of incorporation' shall have been paid. — P. 117.</p> <p>3. Same.</p> <p>Chapter 51, Sess. Laws 1897, providing that foreign corporations shall not he permitted to do any business in the state until the fee for filing the articles of incorporation shall have been paid, does not prohibit a foreign corporation from acquiring personal property in this state nor from entering the courts to protect such property from unlawful interference.- — P. 118.</p> <p>4. Practice in Civil Actions — Pleading—Evidence—Instructions.</p> <p>Where the complaint alleged that the property in controversy was of a certain value, and this allegation was not denied in the answer, and the evidence introduced was overwhelmingly to the effect that the value was in excess of that alleged and no one testified that it was less, the court was justified in instructing the jury that the property was of the value alleged. —P. 119.</p> <p>5. Practice in Civil Actions — Pleading—Proof.</p> <p>Where the complaint alleged that the property in controversy was of a certain value, and this allegation was- not denied in the answer, defendants cannot complain or appeal because the trial court would not allow them to prove that the property was of a less value. They cannot complain of not being permitted to prove that which they did not allege, or to-disprove that which by their silence they admitted; nor does the fact that plaintiffs introduced testimony as to the value, which was not in issue, without objection upon the part of defendant, give the latter the right to introduce immaterial or incompetent evidence. —P. 119.</p>

<p>1. Practice in Civil Actions — Bills and Notes — Presentment for Payment — Burden of Proof — Matters of Defense — Pleading.</p> <p>3 Mills’ (Rev.) Stats., § 245m (Sess. Laws ’97, p. 225), provides that presentment for payment is not necessary in order to charge the person primarily liable on the instrument, but if the instrument is, by its terms', made payable at a special place, and he is able and willing to pay it there at maturity, such ability and willingness are equivalent to a tender of payment upon his part. Held, in an action on a note payable at a specified place, that a demand need not be averred or proved, and, if the maker was ready and offered at the time and place to pay it, this is a matter of defense to be pleaded and proved by him. — P. 121.</p> <p>2. Bills and Notes — Payments—Affirmative Defense — Pleading.</p> <p>In this jurisdiction payment is an affirmative defense and must be specially pleaded. — P. 122.</p> <p>3. Appellate Practice — Frivolous Appeal — Penalty.</p> <p>Where appellants have abused their right, or privilege, of appeal, have needlessly consumed the time of the appellate court with a question previously settled in this jurisdiction, and have vexatiously delayed and harassed appellee in the collection cf a conceded debt, the appellate court should impose a penalty. —P. 123.</p>

<p>Former Opinion Followed.</p> <p>The judgment in this case is affirmed in accordance with - the opinion in Florence Oil and Refining Co. v. First National Bank, ante, p. 119, and, for the reasons there given, a penalty is imposed for the frivolous appeal. .</p>

<p> Appeal from the District Court of Fremont County. </p> <p> Hon. M. 8. Bailey, Judge. </p> <p>Action by The Oil Well Supply Company against Tbe Florence Oil and Refining Company. From a judgment for plaintiff, defendant' appeals.</p>

Hon. Louis W. Cunningham, Judge. Action by Donald C. Soper, a minor, by James C. Soper, his father and next friend, against The' Colorado Springs Electric Company. From a judgment for plaintiff, defendant- appeals.

Eton. Louis W. Cunninghams, Judge. Action by Dorotby E. Soper, a minor, by James C. Soper, ber father and next /friend, against Tbe Colorado Springs Electric Company. From a judgment for plaintiff, defendant appeals.

Hon. Chas. C. Holbrook, Judge. Action by H. A. Bump and W. J. Hill, partners, doing business under the firm name and style of Bump & Hill, against Oscar Lampman, E. M. Turner, J. Knox Burton and Charles H. Berry. From a judgment for plaintiffs, defendants appeal.

Hon. Kent L. Eldred, Judge. Action by Clara E. Wells against George A. Baker, administrator de bonis non. From a judgment for less than ber demand, plaintiff brings error.

<p>1. Appellate Practice — Action by One for the Benefit of All— Order Necessary — Presumption.</p> <p>Mills’ Ann. Code, § 12, provides that when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all, and the court may make an order that the action may be so prosecuted or defended. A complaint in an action by a single plaintiff recited that by reason of the number and diverse residences of the plaintiffs it was impracticable to bring them all before the court; and subsequently the court granted leave to file an amended complaint, and overruled a motion to strike and a demurrer to the same. Held, that, on appeal, it must be presumed that the court ordered that the action might be prosecuted by the plaintiff for and in behalf of himself and his alleged co-owners. — P. 158. 1</p> <p>2. Practice in Civil Actions-pPleading — Causes of Action Improperly Joined — Action to Quiet Title — Action to' Remove Cloud — Demurrer.</p> <p>A complaint alleged that, through error, certain moneys paid by plaintiff to the county treasurer to redeem lands from tax sales were not credited to the taxes levied against such lands; and that the lands were sold by the county treasurer, and, by certain conveyances, one of the defendants, who acquired the rights of the purchaser, was claiming an estate adverse to the title of plaintiff and his co-owners. With' this defendant were joined the .hoard of county commissioners, the treasurer of the county, and the persons to whom certificates of purchase had been issued. The relief sought was the correction of the errors in the treasurer’s books and the cancellation of the certificate of sale, or the refunding of the money paid on account of taxes, and that the defendant claiming an estate be required to plead' his claim or interest, and that plaintiff’s title be quieted. Held, that a demurrer to the complaint on the ground that causes of action were improperly joined should have been sustained, as the complaint appears to contain a cause of action for the removal of a cloud and a cause of action to quiet title, as well as one to recover a money judgment. — P. 159.</p> <p>3. Pleading — Amendment—Departure.</p> <p>A complaint alleged that, through error, certain .moneys paid by plaintiff to the county treasurer to redeem lands from tax sales were not credited to the taxes levied against such lands; and that the lands were sold by the county treasurer, and, by certain conveyances, one of the defendants, who acquired the rights of the purchaser, was claiming an estate adverse to the title of plaintiff and his co-owners. With this defendant were joined the board of county commissioners, and county treasurer, and the persons to whom certificates of purchase had been issued. The relief sought was the' correction of the errors in the treasurer’s books and the cancellation of the certificate of sale, or the refunding of the money paid on account of taxes, and that the defendant claiming an estate “be required to plead his claim, estate, or interest (if any he has), in said premises, that the same may be determined and the title of the plaintiff and his co-owners to said property be quieted.” Later the action was dismissed as to all the defendants save the one claiming an estate, and an amended complaint filed, in which it was alleged that plaintiff and ■ the others for whom, he brought the action were the owners and in possession of such lands, claiming the same in fee simple, and that the defendant falsely and without right was claiming an interest in such property adverse to the title of plaintiff and his co-owners; and praying that he be required to set forth the nature of his claim, and that the title of plaintiff and his co-owners be declared valid and quieted. Held, that, although the original complaint, if it did not contain the concluding paragraph quoted, might be regarded as one to remove a cloud, still, as drawn, the defendant would have been permitted to offer evidence of any title in him to defend the claim of plaintiff, the same as under the .amended complaint, and, therefore, the cause of action was not changed; nor was the burden of proof changed 'in order to recover the taxes paid if the tax deed were declared invalid, as the presumption of regularity, which attaches to the acts of officers whose duty it is to issue tax deeds, places the burden of proving the invalidity of the deed upon the person attaching it. — P. 160.</p> <p>4. Appellate Practice — Pleading — Amendment — Departure — Prejudicial Error.</p> <p>Where the purpose of an original complaint was to remove the cloud caused by a tax deed, and the amended complaint was one to quiet title, and the answer of the defendant 'showed that he relied altogether upon such tax deed, the defendant is not injured and cannot complain on appeal, even though, technically considered, a different cause of action is stated in the amended complaint. — P. 160.</p> <p>5. Pleading — Quieting Title — Complaint—Sufficiency.</p> <p>A complaint to quiet title alleged, first, that plaintiff brings the suit on behalf of himself and approximately fifty other persons who are co-owners of a certain mining claim; and, second, that ever since a given date plaintiff and his co-owners have been and now are in possession of said mining claim, claiming title thereto in fee simple. Held, that such complaint. is not objectionable on the ground that it does, not state a cause of action, in that plaintiffs fail to allege ownership of the property but only “claim” it, as the second allegation does not limit the first, but is merely an allegation as to the character of plaintiffs’ possession. — P. 161.</p>

<p>. Appeal from the County Court of the City and County of Denver.</p> <p> Hon. H. V. Johnson, Judge. </p> <p>Action by The- Page Woven Wire Fence Company against F. A. Joslin. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal to the District Court of Arapahoe County.</p> <p> Hon. Samuel L. Carpenter, Judge. </p> <p>Action by Bridget Downey against Charles H. Smith and The Wesley Investment Company. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Statute of Frauds — Easements—Oral Agreement — Sufficiency of Proof.</p> <p>An oral agreement for a perpetual right of way over the premises of another constitutes an easement or interest in land and is within the statute of frauds, and to take it out of the statute it must he supported by clear, definite and conclusive proof. — P. 173.</p> <p>2. Mines and Mining — Right of Way Through Tunnel — Oral Agreement — Statute of Frauds — Sufficiency of Proof.</p> <p>Plaintiff owned an undivided one-half interest in a mining claim on which was a tunnel. Defendant acquired the other half interest and continued the tunnel on through the claim into another claim owned hy him; and thereafter worked the latter mine and conveyed the output through the tunnel, hasing his right to such use on his undivided interest therein, hut later in his amended answer placing it upon an oral agreement with plaintiff. The proof of such agreement consisted of a conversation testified to hy the representative and agent of defendant, which was indefinite as to the terms of the agreement, and was positively denied hy plaintiff. Held, that such evidence is insufficient to establish the agreement hy clear, definite and conclusive proof, as required by the well settled rule in such cases. — P. 173.</p> <p>3. Mines and Mining — Tenancy in Common — Rights of Cotenants —Operation of Mine.</p> <p>An owner of an undivided interest in a mining claim has no right to use the tunnel on such claim to convey ore from an outside claim. — P. 174.</p> <p>4. Appellate Practice — Findings of the Trial Court — Conclusiveness.</p> <p>While the appellate court is precluded from disturbing the findings of the trial court unless clearly against the weight of the' testimony, still, when there is a sufficient lack of the character and degree of proof required, the judgment will be reversed. —P. 174.</p>

<p> Appeal from the District Court of Arapahoe County. </p> <p> Hon. Peter L. Palmer, Judge. </p> <p>Action by Annie E. Linton against ‘William E. Gray. Fr,om a judgment' for plaintiff, defendant appeals.</p>

<p> Appeal from the District Court of Arapahoe County. </p> <p> Son. F. T. Johnson, Judge. </p> <p>Action by E. B. Mayfield against James Haviland and Bobert Haviland. Prom a judgment for plaintiff, James Haviland appeals.</p>

<p>Appellate Practice — Admission of Evidence — Harmless Error.</p> <p>Even if the trial court erred in admitting in evidence in an action of replevin a letter to show plaintiff’s title to the property, such error is immaterial where there is sufficient uncontradicted testimony in the record, exclusive of the letter, to warrant the court in directing a verdict. — P. 189.</p>

<p> Error to the County Court of Morgcm County. </p> <p> Hon. Tyler D. Heislcell, Judge. </p> <p>Action by Huston & Boyd against Peter Peterson. Prom a judgment for defendant, plaintiffs bring error.</p>

<p> Appeal from the District Court of Lake County. </p> <p> Eon. Frank V. Oiuers, Judge. </p> <p>Action by John It. Cleaveland against The Nubian Mining Company. From a judgment dismissing tbe action, plaintiff appeals.</p>

Hon. Theron Stevens, Judge. Action by S. P. Gutshall against H. A. Kornaley, S. C. Stevens et al. From a judgment sustaining demurrers to the complaint and to- a cross-compláint, plaintiff and defendant Stevens appeal.

<p>1. Appellate Practice — Claim of Exemption — Final Judgment.</p> <p>Sections 2711, 2712, Mills’ Ann. Stats., provide for the separate trial of the claim of exemption; and a judgment in such a trial against the defendant, fixes the right of the parties to the property in controversy, and is reviewable in this court. — P. 202.</p> <p>2. Statutory Construction — Exemptions—Implements.</p> <p>A portable engine and boiler with saw and lumber carriage with attachments, used and lcept by the claimant for the purpose of carrying on his trade and business as a lumberman, and upon which business he depends for a livelihood, are implements of trade without which the business cannot be carried on; and, when not exceeding three hundred dollars in value, they are exempt from execution under the 11th subd. of § 2562, Mills’ Ann. Stats. —P. 202.</p>

<p> Appeal from, the County Cou,rt of Gunnison Co%mty. </p> <p> Hon. George Hetherington, Judge. </p> <p>■Action by Elmer Wiley against W^S. Whinnery, D. T. McLeod and L. Kafka. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Appellate Practice — Sufficient Evidence to Sustain Findings— Not Disturbed on Appeal.</p> <p>A finding of the trial court based upon sufficient evidence to sustain it, will not be disturbed on appeal. — P. 210.</p> <p>2. Appellate Practice — Rejection of Evidence — No Exceptions— Not Reviewed.</p> <p>Where no exceptions were saved to the rulings of the trial court in rejecting evidence offered by appellant, such rulings cannot be reviewed on appeal. — P. 210.</p> <p>3. Replevin — Demand Before Suit — Claim by Superior Right— Demand Unavailing.</p> <p>A demand for the return of property before instituting an action of replevin is not necessary where the defendant claims the property by a superior right, or where there is proof of any circumstance which would satisfy a jury that a demand would have been unavailing. — P. 210.</p> <p>4. Judgments — Replevin—Findings of Separate Values.</p> <p>A judgment for plaintiff in an action of replevin of several animals is sufficient where there is a finding of the aggregate value of the animals, as the rule in this state does not require a finding of the separate value of each animal. — P. 210.</p> <p>5. Replevin — Judgments—In Alternative for Plaintiff — Harmless Error.</p> <p>A judgment for the plaintiff, in an action of replevin, in accordance with Mills’ Ann. Code, § 227, should, as a rule, he in the’ alternative for the possession of the property, or the value thereof in case a delivery cannot he had; hut, since this is for the protection of the plaintiff, the defendant cannot complain of a judgment for the return of the property only. — P. 211.</p>

<p>1. Practice in Civil Actions — Ejectment—Pleading—AnswerEvidence — Tax Deeds.</p> <p>In an action of ejectment, -wheré the defendant relies upon a treasurer’s deed to show title in himself, it is not necessary for him to allege in his answer all the initial proceedings culminating in the issuance of such deed in order to render it admissible in evidence. — P. 214.</p> <p>2. Appellate Practice — Finding Not Supported by Evidence.</p> <p>Where, in an action of ejectment, the defendant relied upon a tax deed to show title in himself, and, upon appeal, there "is included in the record a finding that the- law was not complied with either in the levy of the taxes for which the property was s'old or in the assessment of the property, but the bill of exceptions shows that no testimony was taken or evidence received" sufficient to support it, such finding will be ignored by the appellate court. — P. 216.</p> <p>3. Practice in-Civil Actions — Tax Deeds — Evidence — Order of Proof.</p> <p>A tax deed is not admissible in evidence to establish title to real estate unless it be first proven that, before the deed was issued, either the statutory notice was given of when the time for redemption would expire, or that the assessed valuation was less than five hundred dollars; but the order of proof is not. important, and the deed should be received and considered, unless it appears from the deed itself that it is void, whenever the required proof is made. The offer of an instrument with the statement that the necessary proof will follow, is not objectionable. —P. 216.</p> <p>4. Practice in Civil Actions — Ejectment—Evidence—Tax Deed— Tender of Proof.</p> <p>In an action of ejectment, where the trial court excluded a tax deed relied upon by defendant to show title in himself, solely upon the ground that such deed was void upon its face, it was not incumbent upon defendant to offer proof showing that, before the deed was issued, the statutory notice of when the time for redemption would expire was given, or that the assessed valuation was less than five hundred dollars. — P. 216.</p>

<p>1.' Appellate Practice — Verdict—Conclusiveness.</p> <p>Where the verdict is supported by the testimony, it cannot be disturbed even though the appellate court might consider that the jury had arrived at a wrong- conclusion; but, although the verdict may have some testimony to support it, if, in view of the whole evidence, it is palpably unwarranted, the verdict should be set aside; and a judgment which is but slightly supported by the evidence and is manifestly against the weight thereof, cannot be permitted to stand. — P. 217.</p> <p>2. Brokers — Sale of Real Estate — Commission—Evidence Insufficient to Support Verdict.</p> <p>In an action for commission for procuring a purchaser of real estate, evidence examined and held insufficient to support the verdict for the broker. — P. 220.</p> <p>3. Nonsuit — Directing Verdict — Setting Verdict Aside — New Trial.</p> <p>Where a verdict for plaintiff would be manifestly against the weight of the testimony, the trial court should grant a motion for nonsuit, or direct a verdict for defendant; and, failing to do either, the verdict should be set aside. — P. 221.</p>

Appeal from the District Court of Arapahoe County. Don. Booth M. Malone, Judge. Suit by Charles Willing Hare against Zouave E. Moncrieff, as administrator of tbe estate of John Moncrieff, deceased. From a judgment in favor of plaintiff, defendant appeals.

<p>1. Evidence — Expert Witnesses — Competency.</p> <p>In an action to recover triple damages for injury to plaintiff’s crops caused by defendant’s hogs, a farmer, who has been growing, handling, buying and selling melons for ten or twelve years, and who was engaged in the melon,business in the county and in the year in which the damage was done, is qualified to testify as an expert in regard to the average rate per ’ crate to the farmer for cantaloupes that year. — P. 240.</p> <p>2. Appellate Practice — Overruling Objection to Question — Failure to Answer — Harmless Error.</p> <p>Where a witness does not answer a question objected to, overruling the objection is harmless. — P. 241.</p> <p>3. Evidence — Expert Witnesses — Competency.</p> <p>One who was raised on a farm and, after arriving at manhood, has followed farming as a business and has grown various kinds of melons, although he has not grown cantaloupes, is competent to testify in an action for damages to a growing crop of cantaloupes, whether or -not there was a good stand of cantaloupes that year.- — P. 242.</p> <p>4. Practice in Civil Actions — Evidence—Admissible in Part— Motion to Strike.</p> <p>Where opinion evidence is based partly on knowledge of facts and partly on information from other people, a motion to strike out the evidence on the ground that witness knew nothing about it is too broad, as that based on his own knowledge is competent. The motion should have been restricted to the hearsay evidence. — P. 242.</p>

Appeal from the District Court of Fremont County. Hon. M. 8. Bailey, Judge. Action by Mary E. Lloyd, as administratrix of the estate of John E. Lloyd, deceased, against William H. Davie. From a judgment in favor of plaintiff, defendant appeals.

Hon. P. L. Palmer, Judge. Action by J. J. Watrous against B. O. Hilliard, receiver, John H. Richards, L. M. Kimball and E. W. Wilson, for an order of distribution in a receivership proceeding. From the judgment, petitioner appeals, and Richards brings cross-error.

Eon. Jesse G. Northcutt, Judge. Action by Tlie Town of Del Norte against Adam J. Weiss. Prom a judgment of the district court dismissing plaintiff’s appeal from the justice of the peace, brought to the district court on change of venue from the county court, plaintiff appeals.

<p> Appeal from the District Court of Teller County. </p> <p> Hon. Louis W. Cunningham, Judge. </p> <p>Action by John O’Mara against E. C. Newcomb, as trastee, and The First National Bank of Cripple Creek. From a judgment in favor of defendants, plaintiff appeals.</p>

<p> Appeal from the District Court of Gunnison County. </p> <p> Hon. Theron Stevens, Judge. </p> <p>Action by Charles. April. against J. W. Rummage. . From a judgment for defendant, plaintiff appeals.</p>

Hon. Allison H. De France, Judge. Action by J. M. Johnson, Jr., administrator of the estate of J. D. Bridgers, deceased, against The Cambria Tile and Brick Company. From a judgment for defendant, plaintiff brings error.

<p>1. Fraudulent Conveyances —Chattel Mortgages — Given to Secure the Debt of Another — Validity as Against Creditors.</p> <p>The mere fact that a chattel mortgage is given by one to secure the debt of another, does not defeat the mortgage. — P. 287.</p> <p>2. Chattel Mortgages — Portion of Property Released — Other</p> <p>' Property Taken In Lieu Thereof — Effect as to Creditors. While it is well settled in this jurisdiction that, if property secured by mortgage is sold by the mortgagor with the consent or acquiescence of the mortgagee, and the proceeds are applied to any other purpose than that of liquidating the mortgage debt, the mortgage is void at the instance of creditors, and such property may be taken under attachment or execution; yet, if a mortgagee releases a portion of the property mortgaged, and takes other property in lieu thereof, such mortgage is not voidable at the suit of creditors of the mortgagor. — P. 288.</p>

<p>Master and Servant — Action for Services — Evidence—Admissibility.</p> <p>In an action by plaintiff for services rendered defendant in watching certain property, the plaintiff alleged, and the defendant denied, re-employment after an admitted discharge. Held, that the offer in evidence of a lease executed by defendant to a third party, under which it was claimed the property was turned over to the latter on the day of the discharge of plaintiff, was admissible as tending to show that the services of plaintiff as a watchman were no longer needed in behalf of defendant; and that such fact would strongly corroborate defendant’s claim of no re-employment, and its exclusion constitutes reversible error.— P. 291.</p>

Appeal from the District Court of Lake County. Hon. Fra/nk W. Owers, Judge. Action by Mary Kus against B. Leppel, impleaded with. Ernest L. Daniels, as sheriff of Lake connty. From a judgment for plaintiff, defendant Leppel appeals.

<p>1. Appellate Practice — Abstract of Record — Matters Presented for Review.</p> <p>The appellate court is not required, at the request of appellant or plaintiff, in error, to go beyond the printed abstract for matters presented for review. — P. 298.</p> <p>2. Same — Presumptions.</p> <p>Where the abstract of record does not purport to contain all the evidence in narrative form, and does not state that the bill of exceptions contains all the evidence, and no objections were made, to the court’s instructions to the jury, and there is nothing whereby to advise the appellate court upon what theory the case was submitted, or what instructions were given to the jury, it will be assumed that the case was properly submitted under pertinent evidence and with appropriate instructions. —P. 298.</p> <p>3. Appellate Practice — Abstract of Record — Questions for Review.</p> <p>An objection that the trial court permitted defendant' byparol testimony to contradict the legal effect of his blank indorsement on the note sued on, cannot be intelligently inquired into where the abstract or record does not disclose whether the evidence offered on such issue was oral or written, and, therefore, will not be reviewed by the appellate court. — P. 298. ’</p> <p>4. Appellate Practice — Burden of Showing Error.</p> <p>An appellant or plaintiff in error must affirmatively show error in order to secure a reversal of the judgment of which he complains. — P. 299.</p> <p>5. Bills and Notes — Indorsements—Parol Evidence.</p> <p>Parol. evidence is admissible to show the circumstances under which persons other than the payee of the note, and apparently not connected therewith, indorsed the same. — P. 299.</p> <p>6. Appellate Practice — No Appearance for Appellee — Corrections of Brief — Abstract—Presumptions.</p> <p>Where there is no appearance for appellee or defendant in error, the appellate court cannot assume the corrections of the statement of a case made by appellant or plaintiff in error in his brief unless the same is founded on the printed abstract. —P. 300.</p>

<p> Appeal from the District Court of Arapahoe County. </p> <p> Hon. B. M. Malone, Judge. </p> <p>Action by .John D. Utzler against the City of Denver and Harriet A. Myers. From a judgment for plaintiff, defendants appeal.</p>

Hon. John I. Mullins, Judge. A. K. Clarke filed a claim in the county court against the estate of David Roberts, deceased, and, from a judgment’ disallowing it, he appealed to the district court. From a judgment there for defendant, plaintiff appeals.

<p> Appeal from the County Court of Pueblo County. </p> <p> Hon. L. B. Cibson, Judge. </p> <p>Action by Martin Hughes against Fred Farmer. From a judgment for plaintiff, defendant appeals.</p>

Hon. R. W. Haskins, Judge. Action by tbe city of Ouray against Charles Hummel. From a judgment for tbe city in tbe county court, to which an appeal was taken from the police magistrate’s court by the city, defendant appeals.

<p> Appeal from the District Court of Arapahoe County. </p> <p> Hon. Booth M. Malone, Judge. </p> <p>Action by Edna Montague against W. E. Torbert. From a judgment in favor of plaintiff, defendant appeals.</p>

Appeal from the District Court of Fremont County. Hon. M. S. Bailey, Judge. Action by Harry W. Trowbridge, administrator of tbe estate of Charles W. Ellis, deceased, against Angnstns Macon and Virginia H. Macon. From a judgment for plaintiff, defendants appeal.

<p> Appeal from the District Court of Ouray County. </p> <p> Hon. John T. Shumate, Judge. </p> <p>Action by Isabel L. Moore, as treasurer of tbe city of Ouray, Colorado, against Tbe First National Bank of Ouray, Colorado, and J. E. McClure, Tberon Stevens and George B>. Hurlburt, copartners, doing business as the Bank of Ouray. From a judgment in favor of defendants, plaintiff appeals.</p>

<p>1. Practice in Civil Cases — Replevin—Evidence—Sufficiency— Directing Verdict.</p> <p>The evidence in an action of replevin reviewed, and held to he so manifestly contrary to the verdict as to have made it the duty of the trial court to set it aside or to have directed a verdict for plaintiff. — P. 350.</p> <p>2. Appellate Practice — Judgment Slightly Supported by Evidence.</p> <p>A judgment which is but slightly supported by the evidence and manifestly against the weight thereof, cannot be permitted to stand. — P. 350.</p>

<p> Appeal from the District Court of Costilla County. </p> <p> Hon. Chas. C. Holbrook, Judge. </p> <p>Action by S. L. Rhodes, Mary A. Rhodes, "W. H. Terry and C. J. Rilling against The Mosca Milling and Elevator Company. From a judgment for plaintiffs, defendant appeals. ■</p>

<p> Appeal from the District Court of El Paso County. </p> <p>Hon. Louis W. Cunningham, Judge.</p> <p>Action by Elmore E. Snider against Tlie Colorado Midland Railway Company. From a judgment for plaintiff, defendant appeals.</p>

Hon. John I. Mullins, Judge. Action by William S. Iliff and others similarly situated against the City of Denver, Charles S. Elder, county treasurer of Arapahoe county, Colorado, and ex-officio collector of the city of Denver, William Hayden and the Board of Public Works of said city. From a judgment for plaintiffs, defendants appeal. Decision en banc.

Hon. L. F. Blodgett, Judge. Action by W. E. Martin against J. C. Horn. From a judgment against defendant for costs in the justice’s court, plaintiff appealed; and from an order in the county court refusing to dismiss such appeal, defendant appeals.

<p>1. Cancellation of Instruments — Sufficiency of Complaint to Warrant Decree.</p> <p>In an action to cancel an oil lease, the complaint alleged the execution of a.lease running for twenty years, which provided that lessee should sink three wells within fifteen months and make payment therefor and pay a fixed royalty, and make monthly payment to prevent a forfeiture upon failure to sink the wells within the time specified; and further alleged a failure to sink the wells and default in other provisions of the lease, including that relating to forfeiture, and that lessee refused to cancel the lease.’ Held, that the complaint contains substantially all the necessary averments to warrant the court in decreeing cancellation. — P. 368.</p> <p>2. Appellate Practice — Cancellation of Instruments — Variance— Objection Appearing for First Time on Appeal.</p> <p>In an action to cancel a lease, an objection that there was a variance between the evidence and the pleadings first urged on appeal, will not be considered. — P. 368.</p> <p>3. Appellate Practice — Writ Prosecuted for Purpose of Delay— Penalty.</p> <p>Where it is apparent that a writ of error is prosecuted for mere purposes of delay and to unnecessarily harass and annoy the defendant in error, if the judgment below is a money judgment, the appellate court should assess a penalty against ’the plaintiff in error for unjustifiably prolonging the litigation. Dictum. — P. 368.</p>

<p> Error to the County Court of Otero County. </p> <p> Hon. A. B. Wallis, Judge-. </p> <p>Action by Oliver Adcock against The Atchison, Topeka and Santa Fe Bailway Company. From a judgment for plaintiff, defendant brings error.</p>

Appeal from the County Court of Otero County. Hon. A. B. Wallis, Judge. Action by The City of La Junta against C. H. Heath for violating an ordinance. From a judgment for defendant, the city appeals. Decision en banc.

Hon. Henry V. Johnson, Judge. Proceedings in the administration of the estate of John C. Bntler, deceased, in which a claim in favor of William M. Phillips was allowed against the estate. Prom the order allowing such claim, George W. Bntler, as administrator, brings error. Decision en banc.

<p> Appeal from the District Court of Ouray County. </p> <p> Ron. Theron Stevens, Judge. </p> <p>Adverse suit by Thomas F. Walsh against Lyman I. Henry. From a judgment for defendant, plaintiff appeals.</p>

<p>Statute of Frauds — When Statute May Be Invoked.</p> <p>Where a person performs services for another under an oral contract whereby he is to be paid in land, he cannot invoice the statute of frauds and bring an action upon an implied assumpsit for such services, unless defendant refuses to carry out the agreement on his part. — P. 400.</p>

<p> Appeal from the County Court of Arapahoe County. </p> <p>Eon. Albert 8. Frost, Judge.</p> <p>M. "W. Scanlon was convicted of violating a liquor ordinance, of the city of Denver, and he appeals.</p>

<p> Error to the District Court of Boulder County. </p> <p> Hon. Christian A. Bennett, Judge. </p> <p>Action by W. R. Terry against Esther M. Austin and Shep Madera. From a judgment in favor of plaintiff, defendants appeal.</p>

Theron Stevens, Judge. Action by J ames E. Downey, as president of tbe Onray Miners’ Union No. 15, Western Federation of Miners, for the nse and benefit of the union, against The United States Fidelity and Guaranty Company. From a judgment for plaintiff, defendant appeals.

<p>. Error to the District Court of the City and County of Denver.</p> <p> Hon. Chas. C. Holbrook, Judge. </p> <p>Action by Charles J. Combs, Harvey Stewart, Thomas Reynolds, John Rjsdon, Thomas R. Burch, David Brothers, Henry Lee, Joseph Pearson, A. A. Clough, John Tobias, James Truélson, Minnie Dieter, C. H. Vogler, Ray Chamberlain, C. T. Willmore, Albert Wolff, Y. DeYinnery, C. B. Gleason, N. S. Kaine, W. H. Horne, John W. Robb, Mat Thorp, John Conway, Thomas Phillips, Abraham Slater, Neal Everett, Mrs. T. R. Burch, G. H. Willmore, •W. J. Marian and Kate Coulehan, against The Farmers’ High Line Canal and Reservoir Company, a corporation, A. J. McCune, State Engineer of the State of Colorado, J. J. Armstrong, Superintendent of Division No. 1, and Alex. McLean, Water Commissioner of Water District No. 7. From a judgment for defendants, plaintiffs bring error.</p>

Eon. Frank T. Johnson, Judge. Action by tbe board of county commissioners of tbe county of Hinsdale against tbe board of county commissioners of tbe county of Mineral. From a judgment for defendant, plaintiff brings error.

<p> Error to the District Court of El Paso County. </p> <p> Hon. Robert Kerr, Judge. </p> <p>Mamie Majors was convicted of keeping a lewd house, in violation of Mills’ Ann. Stats., § 1323, and she brings error.</p>

Appeal from the District Court of the City and County of Denver. Don. Frank T. Johnson, Judge. Action by Gust Johnson against George S. Good, James Kerr, and A- G. Palmer, copartners as George S. Good and Company. From a judgment for plaintiff, defendants appeal.

Hon. Ben B. Lindsey, Judge. Action by lone Parker Graham against her divorced husband, James A. Graham, for an additional allowance for their minor children. From a judgment for plaintiff, defendant brings error.

<p> Error to the District Court of Arapahoe County. </p> <p> Hon. George W. Allen, Judge. </p> <p>Action by Tbe Mortgage Trust Company of Pennsylvania against Etta L. Redd and others. From a judgment of nonsuit in favor of Etta L. Redd, plaintiff brings error.</p>

<p>1. Mines and Mining — Location Certificate — Natural Object or Permanent Monument — Conclusiveness of Recital — Question of Fact.</p> <p>Whether or not there is such a reference to a natural object or a permanent monument in a location certificate as to satisfy the provisions of the law must necessarily be a question of fact, unless there is no such reference, or it is so indefinite that it can be told from an inspection of the certificate that the claim cannot be identified thereby; and, when the natural object or permanent monument is properly described, evidence is admissible to show that such object or monument, as a matter of fact, does not exist, or that the reference does not describe the situs of the claim with a sufficient degree of accuracy to identify it; so that such reference in a location certificate is not conclusive that the law has been complied with. — P. 483.</p> <p>2. Mines and Mining — Location Certificate — Description of Claim.</p> <p>The description in a location certificate was by metes and bounds beginning at corner No. 1, describing a parallelogram by courses and distances, and concluded by stating: “Corner No. 1 of Wichita lode joining corner No. 4 of Wichita Eagle lode.” Held, that such reference to the Wichita Eagle lode was a prima facie compliance with U. S. Rev. Stats., § 2324, providing that records of mining claims shall contain such a description of the claim by reference to a natural object or permánent monument as will identify it, and with Mills’ Ann. Stats., § 3151, providing that a location certificate shall contain such a description as shall identify the claim with reasonable certainty; -and that the court erred in refusing to admit such certificate in evidence. —P. 484.</p> <p>3. Same — Unpatented Claims — Presumption.</p> <p>The same presumption — that a patented claim, to which a description in a location certificate ties a mining claim, is a permanent monument — will be made in the case of an unpatented claim, as'the latter may be as well known, as prominent, and as particularly described, as one that is patented. — P. 489.</p> <p>4. Appellate Practice — Mines and Mining — Exclusion of Evidence.</p> <p>Where error was committed by the trial court in refusing to admit in evidence a location certificate offered by the defendant, such error was not cured by the exclusion of evidence offered by the plaintiff that the description in the certificate was not such as would serve to identify the claim. — P. 490.</p> <p>5. Appellate Practice — Mines and Mining — Adverse Suits — Conflicting Instructions — Presumptions.</p> <p>An instruction was given in an adverse suit, based upon the erroneous supposition that a location certificate offered in evidence by the defendant was invalid. Had it been admitted in evidence, the jury might have determined that defendant’s location was made prior to the date of any discovery of mineral on the plaintiff’s claim. Held, that such error was not cured by the fact that the jury, in rendering a verdict for the plaintiff, must have found that there was no valid discovery of mineral made upon defendant’s claim prior to the discovery of mineral on the plaintiff’s claim, in accordance with another instruction that, if the defendant made discovery of mineral and posted notice, the plaintiff could not, within sixty days next ensuing, locate, claim, or initiate, any right to the ground in conflict, since it cannot be ascertained from the record which of the instructions the jury followed. — P. 490.</p> <p>6. Appellate Practice — Erroneous Instructions — Presumptions.</p> <p>Where an erroneous' instruction is given, it will be presumed to be prejudicial to the party excepting thereto, unless it affirmatively appears that it was not. — P. 491.</p>

<p>1. Trusts and Trustees — Enforcement of Trust — Liability of T rustee.</p> <p>Where a trustee holding mining property received certain moneys and shares of stock on account of the trust estate, which were to he sold by him and the proceeds to be divided pro rata among certain judgment creditors, and he repudiates such trust and contends that he holds the property as trustee for the sole purpose of collecting from the sale thereof sufficient to pay the judgments, the balance, if any, to remain his individual property, he is liable for an accounting to the beneficiaries for the amounts received. — P. 494.</p> <p>2. Trusts and Trustees — Accounting—Pleading—Complaint— . Sufficiency — Demurrer.</p> <p>In an action against a trustee for an accounting, a complaint which shows upon its face that defendant holds the property in trust upon certain conditions; that he repudiates those conditions, and contends that he holds upon certain other conditions; and also shows that he has collected certain moneys and refuses to account, is good against a general demurrer that such complaint does not state facts sufficient to constitute a cause of action. — P. 494.</p> <p>3. Same.</p> <p>In an action for accounting against a trustee holding property for plaintiffs, their interests being in proportion to the amount of a several judgment obtained by them against a mining company, an allegation in the complaint that certain of the plaintiffs, in order to redeem the property from a sale, advanced moneys for the use and benefit of the plaintiffs, in consideration of which it was agreed they should hold such interest in the premises or moneys received therefrom as the sum advanced bore to the total sum of the judgments, is good against a demurrer on the ground of ambiguity in that it cannot be determined therefrom what interests such certain plaintiffs have in such estate. — P. 495.</p> <p>4. Appellate Practice — Trusts and Trustees — Removal of Trustee — No Exception — Review.</p> <p>Where there was no exception taken to the action of the trial court in removing a trustee and the appointment of his successor, the question cannot be reviewed on appeal. — P. 496.</p> <p>5. Practice in Civil Actions — Plaintiffs—Parties in interest — Assignment of Interest — Effect.</p> <p>In an action for accounting against a trustee, evidence that some of the plaintiffs had assigned all interest in the subject-matter of the suit is admissible, since the action must be brought in the name of the real parties in interest, and the action of the court in refusing to allow defendant to show such facts constitutes reversible error. — P. 496.</p> <p>6. Appellate Practice — Matters Insufficiently Set Forth in Abstract.</p> <p>An assignment that the trial court erred in setting aside the report of a referee and in making special findings, and that the special findings were not warranted by the testimony, will not he reviewed on appeal where such matters are so insufficiently set forth in the abstract as to render it impossible to obtain an intelligent idea as to what the report of the referee contained, or as to what were the findings and judgment of the court. — P. 496.</p>

Hon. Ben B. Lindsey, Judge. Special proceeding by tbe people, on the relation of William H. Wadley, to contest the validity of a franchise election. Frederick A. Williams was subpoenaed to testify as a witness, but refused to be sworn, upon the ground, among others, that the court had not jurisdiction of the proceeding. From a judgment of the court fining him as for contempt, and ordering his imprisonment until the fine was paid, he brings error. Decision en banc.

<p>1. Criminal Law — Conspiracy—Evidence—Competency.</p> <p>In a prosecution for conspiracy, it is error to permit the people, over the objection of defendant, to introduce evidence as to acts and declarations of a jointly indicted co-conspirator, which were done and made long after the purpose of the alleged conspiracy was consummated, and not in the presence and hearing and without the knowledge of defendant. — P. 510.</p> <p>2. Same — Flight.</p> <p>In a prosecution for conspiracy, evidence that a jointly indicted conspirator had fled 'from the jurisdiction of the court so that he could not be tried, is inadmissible as being contrary to the settled rule that, when a conspiracy is at an end, and the purposes of the conspiracy have been accomplished, no subsequent act or declaration of one of the conspirators is admissible against the others. — P. 511.</p>

<p>Damages — Joint Tort-Feasors — Judgment against One, Bar against Others.</p> <p>Where, in an attachment proceeding, judgment was rendered in favor of the intervenor for the property, but damages claimed as resulting from the attachment were refused him because not properly pleaded, such intervenor cannot, in a subsequent action, recover such damages from the sheriff, as the injury occasioned by the attachment is an entirety, and the damages resulting therefrom cannot be apportioned among the several wrongdoers, nor be divided- into separate demands. — P. 512.</p>

Error, to the County Court of the City and County of Denver. Hon. Ben B. Lindsey, Judge. Special proceeding by Tbe People, on tbe relation of William H. Wadley, to contest tbe validity of a 'franchise election. J. Cook, Jr., was subpoenaed to testify as a witness; but refused to be sworn, upon tbe ground, among others, that the court had not jurisdiction of the proceeding.

Hon. Ben B. Lindsey, Judge. Special proceeding by The People, on the relation of William-H. Wadley, to contest the validity of a franchise election. George N. Ordway was subpoenaed to testify as a witness, but refused to be sworn, upon the ground, among others, that the court had not jurisdiction of the proceeding. From a judgment of the court fining him as for contempt, and ordering his imprisonment until the fine was paid, he brings error. Decision en banc.

Hon. Ben B. Lindsey, Judge. James K. Ellis was convicted of the offense of keeping and maintaining a wineroom in connection with a saloon, and he brings error.