Volume 39 — Colorado Reports

Petition for Review of the Proceedings in the District Court of the City and County of Denver. Don. John I. Mullins and Don. P. L. Palmer, Judges.

Appeal from the District Court of the City and County of Denver. Hon. John I. Mullins, Judge. Action by Sarah L. Patterson'against Thomas S. Hayden, Charles E. Dickinson and Paul B. Gay-lord. Prom a judgment for plaintiff, defendants appeal.

' Hon. Ben B. Lindsey, Judge. H. D. Frueauff was prosecuted for giving trading stamps to Ms customers in violation of an ordinance of the city and county of Denver. From a judgment discharging the defendant, the city and county of Denver brings error. Decision en banc, all the justices concurring.

Original Proceeding. Petition by Edward D. Sherlock, Howard C. Par-melee, Samuel D. C. Hays, George D. Curtice and Albion K. Vickery, as county clerk and ex-officio recorder of the city and county of Denver, for a writ of prohibition to the district court of the second judicial district and to Peter L. Palmer, one of the judges thereof. '

<p>1. Accord and Satisfaction — Payment Less than Liquidated Sum Due — Release Not Under Seal — Money Borrowed to Make Payment.</p> <p>The payment by a debtor of a sum less than the liquidated sum due under his agreement with the creditor, who executes a writing not under seal purporting to release the debtor from all claims under the agreement, is not a satisfaction of the full debt, although the debtor may have borrowed the money with which to make the payment, and an action will lie for the balance. — P. 46.</p> <p>2. Same — Motion for Judgment on Pleadings.</p> <p>An affirmative defense 'of accord and satisfaction, setting forth that plaintiff agreed with defendant that, on payment to her of a certain amount, less than the amount due, she would cancel and deliver to defendant the agreement sued upon, and would give him a receipt in full of all demands, in consideration of which defendant paid such sum to plaintiff out of moneys borrowed by him for that purpose, whereupon plaintiff executed and delivered to defendant a release of claims and wrote across the face of the contract that the sum was canceled — such alleged release not being under seal, and there being no averment that plaintiff knew that defendant borrowed the money, is insufficient as a plea of accord and satisfaction, and a failure to sustain a motion for judgment on the pleadings constitutes prejudicial error. — P. 47.</p> <p>3. Alimony — Accord and Satisfaction — Bankruptcy — Not Discharge Husband’s Liability.</p> <p>The obligation incurred by a husband under a contract with his wife, made in contemplation of obtaining a divorce which was afterwards done, whereby he agreed to pay her a specified sum per month so long as she remained unmarried, is in the nature of alimony, and is not barred by his discharge in bankruptcy; and an accord and satisfaction based upon his threat to enter into- voluntary bankruptcy unless such settlement is made, is not supported by a sufficient consideration, and the divorced wife may recover the balance due. — P. 48.</p> <p>4. Evidence — Release Not Under Seal — Receipt—Open to Explanation.</p> <p>A writing, not under seal, executed by a creditor and purporting to release a debtor of all claims under a written contract, is open to explanation, even though the contract be marked “Canceled.” — P. 49.</p>

<p> Error to the County Court of the City cmd County of Denver. </p> <p> Hon. Ben B. Lindsey, Judge. </p> <p>Action by Mary E. Schlessingér against Timothy S. Schlessinger. From a judgment for plaintiff, defendant brings error.</p>

<p>Practice in Civil Actions — Right of Plaintiff to Dismiss When. No Counter-claim Filed.</p> <p>The plaintiff, where no counter-claim has been set up in the answer, is entitled to dismiss his action in accordance with, Mills’ Ann. Code, § 166, authorizing a dismissal when no counterclaim has been filed. — P. 52.</p>

Appeal from the District Court of El Paso County. Hon. Louis W. Cunningham, Judge. Action by George M. Houston, doing business as Tbe Houston Lumber Company, to enforce a mechanic’s lien. From a judgment foreclosing tbe lien, Mablon Licbty appeals.

<p>1. Water Rights — Change of Point of Diversion — Statutory Construction — Res Judicata.</p> <p>In a proceeding under c. 124, Sess. Laws 1903, to change the point of diversion of petitioner’s right to use water from a natural stream of the state for irrigation, only his right to such change can be determined, and not the question of whether a former decree, in a proceeding establishing the relative priority of rights in which all the parties to this proceeding were parties, giving him the right to such water, was correct; such decree being res judicata on that point as to them; neither can the question of abandonment be therein litigated. — P. 61.</p> <p>2. Water Rights — Statutory Construction — Change of Point of Diversion — Mutual Ditch Companies — Shareholders.</p> <p>Sess. Laws 1903, c. 124, providing that every person, association or corporation desirous of changing in whole' or in part the point .or points of diversion of his or its rights to use water from any of the streams of the state, shall present a petition, etc., includes mutual ditch companies and shareholders who are consumers. The right to change is a property right; it was not conferred by this remedial statute, but is a pre-existing right, and always could be enforced, so long as the rights of others are not thereby injuriously affected. — P. 61.</p> <p>3. Appellate Practice — Findings—Evidence to Support — Not Disturbed on Appeal.</p> <p>Where there is evidence to support the findings of the trial court, they cannot be disturbed on appeal. — P. 63.</p> <p>4. Water Rights — Mutual Ditch Companies — Stockholders — Change of Point of Diversion — Allowance with Restrictions.</p> <p>In a proceeding by a stockholder in a mutual ditch company to change his point of diversion from a natural stream, the decree provided that the proposed change should not be held in any manner to impair the relative rights of the stockholders; that the stock of the petitioner should still be liable to assessment for maintaining the' ditch, the same as before; that the corporation should have, the same power to enforce its assessments which it previously had; and that it should have the right to enforce its by-laws in all cases against petitioner, including the right to withdraw his appropriation of water through its headgates, when he had no immediate use for it. Held, that such decree was in compliance with c. 124, Sess. Laws 1903, which provides that, if it shall appear that the rights of others might be injuriously affected, the court shall decree the change upon terms and conditions' which would prevent such injurious effect; and it amply preserves inviolate rights of the company and other stockholders as against petitioner. — P. 64.</p> <p>5. Water Rights — Change of Point of Diversion — Persons Entitled to Maintain Proceedings.</p> <p>Where a person contracts to buy certain persons’ stock in a mutual ditch company upon condition that he obtain a decree changing the point of diversion of the water represented by such stock, and the contract authorizes him to bring such proceeding, he comes within the provisions of c. 124, Sess. Laws 1903, providing that every person desirous of changing the point of diversion of his right to use water is entitled to maintain such-proceeding. — P. 65.</p> <p>6. Water Rights — Change of Point of Diversion — Notice—Where Published — Statutory Construction.</p> <p>Sess. Laws 1903, c. 124, requires that notice of a proceeding to change the point of diversion of water from a natural stream for irrigation be given by publication in one public newspaper “in such county into which such water district may extend,” once each week for four successive weeks. Held, that “in such county” refers to the county in the court of which the proceeding was properly instituted; that where a water district extends, into two or more counties, a failure to publish in the county where the proceeding has been properly instituted invalidates such proceeding; and that the proper district court, under its power to make proper rules, might well order publication to be made in one public newspaper in each of such counties, and such course is advisable. — P. 66.</p>

<p>Limitation of Actions — Money Loaned — Part Payment.</p> <p>The statute of limitations is not a har to an action for money loaned when brought within six years from the date of the last payment of interest. — P. 71.</p>

Appeal from the District Court of Mesa County. Hon. Theron Stevens, Judge. Action by Charles W. Fravert against the board of county commissioners of Mesa county. From a judgment for defendant, plaintiff appeals.

Appeal, from the District Court of Gilpin County. Don. A. D. De France, Judge. Action by Leopold Sternberger and Samuel Sternberger against Charles W. Ladd, Sarah Schuyler (widow of Josephus F. Schuyler, deceased), and the unknown heirs of said Josephus F. Schuyler, deceased, James E. Munson, G. E. Van Hyengan, Adolphus W. Petriken, Isaac Clemens Schuyler, and heir of Isaac C. Schuyler, deceased, and Sherman C. Spiteer..

<p> Appeal from the District Court of the City and County of Denver. </p> <p> Hon. Samuel L. Carpenter, Judge. </p> <p>Suit by Emma L. Newkirk against L. J. Laws. From a decree in favor of plaintiff, defendant appeals.</p>

Hon. James L. Cooper, Judge. On Motion to Dismiss. Action by The City of Canon City against Joseph Walton, David Walton, John D. Lloyd and Frank P. Goldsberry. From a judgment for plaintiff, defendants appeal. Appellee moves to dismiss appeal because not applied for within statutory time.

Hon. M. 8. Bailey, Judge. Action by Augustus Sartor and Mary E. Sartor against Celia Wells, J. L. Prentiss, trustee, F. A. Reynolds, administrator with will annexed of the estate of Thomas S. Wells, deceased, Sarah E. Hall, George I. Wells and Clara E. Wells. From a decree quieting complainant’s title, hut directing foreclosure of a deed of trust against the property in controversy, plaintiffs bring error.

<p>Limitation of Actions — Deed of Trust — Note Barred — Conveyance of Premises — Acknowledgment of Indebtedness by Grantee.</p> <p>A promissory note not yet due, secured by trust deed duly recorded, was still unpaid when the premises were conveyed, in 1892, by warranty deed, to M., “subject to the deed of trust.” At various times thereafter, M. paid different amounts on the principal, and also paid the interest up to January, 1902, within four months of the time this writ of injunction was sued out by his. grantee, to restrain the sale of the premises for the purpose of paying the balance of the indebtedness. In 1896, M. executed a mortgage on the property, “subject to the deed of trust,” and, in 1902, but less than six years from the • date of such mortgage, M. conveyed the property to the plaintiff in the injunction suit by warranty deed, which contained no reference to the' deed of trust. The note secured by such deed contained an indorsement that the time of payment was extended' two years from December, 1895, and that the interest was reduced to 7 per cent. That extension was made subject to the conditions mentioned "in the deed of trust, and M. paid the interest from such date at the reduced rate. There was no agreement or new promise made to pay the indebtedness by any one in such way as to make them personally liable. Held, that the acts of M. constitute an admission that the land is subject to the deed of trust, and constitutes an engagement for the satisfaction of the balance of the note secured thereby out of the mortgaged premises, and operate to suspend the running of the statute of limitations against proceedings to foreclose the deed of trust; and that his grantee, with constructive notice of such facts by the records, is in no better position than M., and his injunction suit was properly dismissed. — P. 98.</p>

Hon. Christian A. Bennett, Judge. Action by John Brierly against the board of county commissioners of Boulder county. From a judgment for plaintiff, defendant appeals. Appellee, as plaintiff, brought an action against appellant, as defendant, to prevent the duly constituted authorities from appropriating a strip of land which he claimed to own, and which the defendant contended was part of the public highway, known as Road No. 17.

Hon. W. R. Pylte, Judge. Action by E. F. Miller against Charles Millard and Frank Millard. From a judgment for plaintiff, defendants appeal. The appellee, plaintiff below, instituted this suit before a justice of the peace to recover from appellants the value of certain pasturage claimed to have been wrongfully taken and appropriated by them. From a judgment for $100, defendants appealed to the county court.

Appeal from the District Court of Arapahoe County. Hon. P. L. Palmer, Judge. Action by John C. Norris against Henry Wagner. From a judgment for plaintiff, defendant appeals. Affirmed in part, and reversed in part.

Hon. Chas. A. Pike, Judge. On Motion to Dismiss. Action by H. W. Chambers against The Green-law Lumber and Timber Company. From a judgment for plaintiff, defendant appeals. Motion made in this court to dismiss upon the ground that the appeal bond was never approved below.

<p> Error to the District Court of Larimer County. </p> <p> Hon. James E. Garrigues, Judge. </p> <p>John A. Steele was convicted of murder in the second degree, and he brings error.</p>

<p>1. Principal and Agent — Partnership—Sharing Profits for Serv, ices.</p> <p>Where one person furnishes money to another to buy and sell certain material, and the latter is to receive a share of the profits,as compensation, the relationship is that of principal and agent, and not that of partnership; and either party has the right to terminate the agency at any time, and, upon its termination, the person furnishing the money is entitled to all stock purchased with his money and remaining unsold. — P. 121.</p> <p>2. Appellate Practice — Conflicting Evidence — Question for Jury —Verdict Not Disturbed on Appeal.</p> <p>Where a question has been submitted with proper instructions, and the jury have found the issue in favor of one of the parties upon conflicting evidence, the verdict will not be disturbed on appeal. — P. 121.</p>

<p> Appeal from the District Court of the City and County of Denver. </p> <p> Hon. Samuel L. Carpenter, Judge. </p> <p>Action by Catharine M. Clifford against Edward Connell and The Eastern Market Company. Prom a judgment in favor of plaintiff, defendants appeal.</p>

<p>1. Appellate Practice — Pleading—Discretion of Trial Court.</p> <p>Whether or not duplicate statements of the same cause of action will he permitted in the complaint, rests in the sound legal discretion of-the trial court; and that discretion will not be disturbed on appeal except in case of abuse. — P. 129.</p> <p>2. Appellate Practice — Pleading—Complaint—Two Statements of Cause of Action Commingled — Motion—Waiver by Answer —Estoppel.</p> <p>Where a cause of action on contract is commingled in one statement with one upon a quantum valebat, such union should be taken advantage of by motion; and, where defendants fail so to do, but put both causes in issue, by their answer, they are estopped to complain. — P. 130.</p> <p>3. Instructions — Construed Together — Ambiguous Language.</p> <p>In an action against promoters of a corporation for the contract price of certain machinery, the court instructed the jury that, where the promoters of a corporation have entered into a contract, the same may be ratified by the subsequently formed corporation, and that it is not necessary that the directors as a body or at a meeting assembled should, by formal resolution, adopt or ratify the same; but that the' corporation may be bound to pay for property that it has actually used which had been bought by its promoters, “and the use of which the directors have had actual cognizance and knowledge of, if they have continued to use it and failed to repudiate it.” Held, that the jury were not misled, since the word “repudiate” must refer to the contract, and not to the machinery; and, since the jury were further, in the' immediate connection, told that their finding must be made upon the alleged conversations and promises made by the directors, as claimed to have occurred, they understood that, before there could be a ratification by the directors, they must have a “knowledge” of all the material facts concerning the contract. — P. 130.</p> <p>4. Corporations — Promoters—Contracts—Ratification by Directors — A Regular Meeting Not Necessary.</p> <p>Where a majority of the directors of a corporation individually have knowledge of all the material facts connected with the purchase of certain machinery by the promoters of the company, and promise to pay the debt, or, with such knowledge, make use and enjoy the benefits of the thing bought, that is sufficient to-make the company liable. — P. 131.</p> <p>5. Real Property — Fixtures—Question for Jury. •</p> <p>A corporation purchased certain mining claims from its promoters, -who became directors of the company, and, upon the land, at the time of its purchase by the promoters, was an air compressor belonging to plaintiff, which she sold separately to them. The compressor remained upon the land, and was used by the company, and,' in an action by plaintiff against the directors for its purchase price, they alleged that the compressor was a fixture, and passed by the granting clause in the deed, which included permanent fixtures. Held, that, under the controverted questions of fact, whether the- compressor constituted a fixture 'was for the jury. — P. 132.</p> <p>6. Appellate Practice — Conflicting Evidence — Verdict Not Disturbed on Appeal.</p> <p>Although the evidence in a case might impress fair-minded men differently, and might not be as clear and preponderating as possible, yet, if there is evidence legally sufficient to sustain the verdict, it will not be disturbed on appeal. — P. 133.</p>

<p>1. Corporations — Agents—Extent of Authority — Notice.</p> <p>Wliere the hoard of directors of a corporation is vested "with the general management of its affairs, a person doing business with, an alleged agent of the company is bound to take notice of the- extent of such agent’s authority. — P. 138.</p> <p>2. Corporations — Officers.— Scope of Authority — Unauthorized Contracts. „</p> <p>The power to make a contract binding a corporation to pay a certain sum to lessees for a surrender of their rights under an alleged lease is not incidental to the office of president and general manager, and such a contract is not binding on the corporation in the absence of evidence of authority to make it or of its ratification by the company. — P. 138.</p> <p>3. Same — Ratification.</p> <p>A contract, made without authority by the president and general manager of a corporation, cannot be ratified by the board of directors unless the board has full and complete knowledge of its terms and conditions.- — P. 138.</p> <p>4. Contracts — No Consideration.</p> <p>An agreement by the owner of property to pay a certain sum to an alleged lessee fop the surrender of his rights under a void lease, is not supported by,a valuable consideration. — P. 139.</p> <p>5. Practice in Civil Actions — Corporations—Officers—Scope of Authority — Contracts—Burden of Proof.</p> <p>In an action- against a corporation on an agreement made with an alleged agent or officer, the burden is on plaintiff to prove that such person had power to make the agreement. — P. 139.</p> <p>6. Corporations — Contracts—Failure to Repudiate.</p> <p>In an action against a corporation on an agreement made by its agent, plaintiff cannot rely on the corporation’s failure to repudiate the contract unless it is shown that the latter had an opportunity to either ratify or repudiate it. — -P. 139.</p> <p>7. Practice in Civil Actions — Corporations—Officers!—Contracts —Instructions.</p> <p>Where, in an action against a corporation on a contract made by one of its officers when its directors had exclusive power to make such contracts, there was no evidence that the directors knew of the agreement, it was error to give an instruction that, “as a general rule, what the directors of a corporation know regarding the' matters affecting its interests, the company knows; and the knowledge of the directors may often be inferred from circumstances, and it is not always necessary to show direct proof.”- — P. 139.</p> <p>8. Licenses — Right to Enter upon Lands — Non-transferable — Silent Partner.</p> <p>Where a corporation granted a license to two persons to enter on its premises for certain purposes, and the license recites that it was non-transferable without the permission and ratification of the company, a third person claiming to be a silent partner with the holders of the license can obtain no benefits thereunder in the absence of showing that the corporation assented to his interest by an assignment in part of the license. —P. 141.</p> <p>9. Corporations — Officers—Contracts—Consideration.</p> <p>An officer of a corporation, without authority so to do, made a verbal lease of a portion of the company’s property to two persons. Afterwards, the corporation gave to one of the lessees and a third person a written license to enter upon the premises to do certain tunnel work, and the latter entered thereon and performed such work. Thereafter a succeeding officer of the company, also without authority, agreed to pay the lessees for the tunnel work done, in consideration of their surrendering their rights under the lease. Held, that such work, having been done by one of the lessees and a third person under the license, did not accrue to the benefit of the corporation by virtue of the lease, and, therefore, constitutes no consideration for the agreement to pay them for such labor. — P. 142.</p>

<p>1. Master and Servant — Injuries to Servant — Defective Tools.</p> <p>Where the servant declines to use the tools furnished by the master, and uses those of his own selection, he cannot hold the master liable for injuries caused by defects therein. — P. 147.</p> <p>2. Same — Negligence—Warning of Danger.</p> <p>An employee, apparently of ordinary intelligence and who had been working as a carpenter on different works of construction for about twelve years, was directed by his employer to chip off certain stone masonry within which to fit in window jambs, and, in doing so, was injured by a piece of steel from the tools striking him in the eye. Held, that plaintiff, with his experience as a builder, was as competent to determine the danger from flying pieces of steel or stone as the employer, and therefore the latter was not guilty of negligence in failing to warn him of the danger. — P. 147.</p> <p>3. Same — Assumed Risk.</p> <p>A carpenter employee was directed to chip certain stone masonry for the fitting of window jambs, and, after working at this employment for two or three days, he returned to carpentering for several days, and then resumed the former work, and was injured by a piece from the tools used striking him in the eye. Held, that, when he returned to the work of cutting the stone, he had actual knowledge of the danger arising from flying pieces of steel or stone, and, having continued to work with such knowledge and without protest, he assumed the risk. — P. 147.</p> <p>4. Same.</p> <p>The servant assumes the obvious risks arising from the condition of affairs, and, where he possesses ordinary intelligence and ability and experience, the master is not obliged to warn him of an obvious danger whenever it be known to the servant or could have been ascertained by him in the exercise of ordinary care. — P. 147.</p> <p>5. Same — Safe Tools.</p> <p>Where the servant discards the tools furnished him by the master, not because they were unsafe, but because they were not handy, and, without requesting the employer to furnish other tools, procures others which seem to him to be more convenient, and -he is subsequently injured on account of a defect in them, he cannot complain that the master was negligent in failing to furnish safe tools. — P. 148.</p>

<p>1. Public Highway — Damages—Fastening of Teams — Negligence Per Se — Question of Fact.</p> <p>The leaving of a team upon the public highway restrained only by a 56-pound iron weight attached by straps to the horses’ bits, is not negligence per se for which the owner is liable in damages for mischief done by the team; but the question whether such act is due care or negligence, is one to be determined from all the facts and circumstances surrounding the transaction.— P. 152.</p> <p>■ 2. Appellate Practice — Findings by Court Same as Verdict by Jury.</p> <p>The findings of a trial court are entitled to the same consideration as the verdict of a Jury, and, when equally honest and intelligent men might differ as to the finding, it will not be disturbed on appeal. — P. 155.</p> <p>3. Municipal Corporations — 'Damages—Fastening Teams on Streets — Negligence—Evidence—Findings.</p> <p>The driver of defendant’s - team left it in front of a store, while delivering articles of trade, fastened to a 56-pound iron weight connected by straps to the horses’ bits. The driver had been employed for more than a year, and the horses were very gentle and had never been known to be frightened or to show evidence of viciousness; but, on this occasion, they ran away and injured plaintiff’s bicycle, which was leaning against the curb. Held, that such facts were sufficient to sustain a finding that defendant was not guilty of negligence. — P. 155.</p> <p>4. Same — City Ordinance.</p> <p>The driver of defendant’s team left it in front of - a store, while delivering articles of trade, restrained only by a 56-pound iron weight attached by straps to the horses’ bits. The city ordinance imposed a penalty upon any person leaving a horse or other animal attached to a wagon in any street thereof without fastening the same by a chain or strap to a weight or some other stationary object, the weight to be of metal and weighing not less than 15 pounds for a single horse, and 25 pounds for a team. Held, that, while an ordinance cannot create' or abrogate a civil duty enforceable at common law, and therefore could hot be introduced in evidence for such purpose, it could be introduced as bearing upon the question of negligence; that is, the jury were entitled to consider compliance with the ordinance as a circumstance tending to show due care, and a violation thereof as tending to show negligence. — P. 156.</p>

<p> Error to the District Court of Boulder County. </p> <p> Hon. James E. Garrigues, Judge. </p> <p>Action by B. A. Langridge against The Golden Age Number Two Mining and Milling Company. From a judgment in favor of plaintiff, defendant brings error.</p>

<p>Original Proceeding in Disbarment. '</p> <p> On Motion. </p> <p>Proceedings in disbarment by The People, on the relation of The Colorado Bar Association, against Francis L. Burton. Motion for judgment on the pleadings.</p>

Hon. Jas. L. Russell, Judge. Action by Tbe Montezuma Water and Land Company against tbe board of county commissioners of Montezuma county to restrain the enforcement of a rate for the use of water. From a judgment for plaintiff, defendant appeals.

<p>1. Master and Servant — Injuries to Servant — Servant of Tender Years — Negligence.</p> <p>The defendant, operating a department store, employed the plaintiff a girl of fourteen years of age, as a cash girl, and she was injured by the fall of the door to a freight elevator while entering it under the direction of the head of her department. The evidence was conflicting as to the capacity of plaintiff to apprehend the danger incident to riding on this elevator, and as to whether the elevator was suitable for carrying passengers. Held, that it was proper to submit to the jury the question of whether the plaintiff, considering her age, intelligence and experience, knew and appreciated, and had the capacity to apprehend, the danger incident to using this elevator. — P. 185.</p> <p>2. Same — Duty of Employer.</p> <p>It is the duty of an employer of young' persons to take notice of their apparent age, ability and capacity, and to use ordinary care to protect them, and such things are factors to be considered in measuring the employer’s liability for injuries to the servant. — P. 186.</p> <p>3. Same — Measure of Care.</p> <p>In an action for injuries received by a girl of fourteen years while entering her employer’s freight elevator in the discharge of her duties, as bearing both upon the question of contributory negligence of the servant and the negligence of the master, in so far as concerns the latter’s duty to furnish a reasonably safe means of transit, the age, intelligence, experience and capacity of the plaintiff are factors that bear directly upon the measure of care to be exercised by both of them; for while a child in a given case is required to use the same degree of care which children of like age and experience would take in similar circumstances, the law does not necessarily exact of infants the same degree of care that it does of persons of mature age and experience. —P. 186.</p> <p>4. Appellate Practice — Refusal of Instructions — Harmless Error.</p> <p>In an action for injuries received by a girl of fourteen years while entering her employer’s freight elevator in the discharge of her duties, caused by the falling of the elevator door, the court instructed that the jury must not presume negligence from the accident; that the risk of all obvious and open dangers in riding on this elevator was assumed by the plaintiff, even though she was a ’minor, and the defendant was not obliged specially to warn or instruct her of dangers of this character; that even though defendant was negligent in requiring her to use this elevator, yet if the exercise of ordinary care upon her part could have avoided the danger, she could not recover; that it was immaterial that plaintiff may not have understood or appreciated the danger, if any, of using the eleva tor, for the test of law is not actual understanding or appreciation, but the capacity to understand or appreciate; that the alleged dangers were just as open and obvious to plaintiff as to defendant; that a minor assumes the risks of a given service the same as an adult, and the mere fact of minority does not necessarily, of itself, impose upon the master any other or greater degree of care with respect to the minor than would be upon him had the servant attained full age; that it is the immaturity of mental and physical faculties and capacity which is incident to some minors, but not to all, and not the mere fact of minority, which the master must have special regard for; and where, in a given instance of minority, this immaturity is wanting, the minor stands upon the plane of adults. Held, that from such instructions the jury must have understood that the mere fact of minority was no ground for plaintiff’s recovery, and that it did not relieve her of responsibility for her own, or impose liability upon the defendant for his negligence; and hence defendant was not prejudiced by the refusal of instructions on contributory negligence and assumption of risk which omitted the element of age, experience and understanding. — P. 187.</p> <p>5. Master and Servant — Injuries to Servant — Concurrent Negligence of Master and Fellow-Servant.</p> <p>Where an injury to a servant is the result of concurring acts of negligence, one that of a fellow-servant, the other that of the master, the plaintiff has a ground of recovery against either or both. — P. 188.</p> <p>6. Appellate Practice — Failure to Assign Error — Matters Not Discussed in Brief.</p> <p>Where error has not been properly assigned and has not been argued in the brief, such question is not before the appellate court for consideration. — P. 189.</p>

<p>1. Banks and Banking — Drafts—Deposits—Interest.</p> <p>Plaintiff in 1883 received a' draft payable to her order, and, after indorsing it in blank, turned it over to her husband to be taken care of, who deposited it in a bank to which the defendant hank succeeded. The former bank, by indorsement, directed the drawee to pay it to another bank for the indorsing bank’s account. It was not claimed that plaintiff’s husband made any special contract with the bank where deposited concerning its collection. Held, that, in the absence of any special contract as to title, the bank receiving the check from plaintiff’s husband became a simple contract debtor for the amount when collected, less the commission, if any was charged, to be paid upon demand; and, therefore, it drew no interest in the absence of any demand. —P. 192.</p> <p>2. Practice in Civil Actions — Directed Verdict.</p> <p>Where the evidence is insufficient to support a verdict for plaintiff, the trial court is justified in directing a verdict for defendant and entering judgment thereon. — P. 193.</p>

<p>1. Venue — Motion to Change — Motion Overruled — Waiver by Going to Trial.</p> <p>Where, in a case in which the court had jurisdiction of the subject-matter, the defendant company’s motion for a change of venue was overruled, and afterwards both parties voluntarily appeared and went to trial without objection, although the ruling might have been erroneous and the court divested of jurisdiction in accordance with § 27 of the code of 1887, still by such action the parties reinvested the court with jurisdiction, and the defendant waived his right to the change of venue. — P. 195.</p> <p>2. Appellate Practice — Bills of Exception — Matters Properly Included — Venue—Application for Change Based on Evidence Aliunde the Record.</p> <p>Where a motion for a change of venue is not based on the pleadings, the supporting and opposing affidavits and the objection to the ruling thereon and the exception thereto must each and all be preserved by a bill of exceptions, since copying these documents in the court journals, and authenticating them as entered in the clerk’s minutes, do not make them part of the record, nor can such method take the place of a hill of exceptions or operate as a substitute therefor, and under such circumstances the denial of the change of venue cannot he reviewed on appeal. — P. 196.</p>

Hon. Albert 8. Frost, Judge.' Action by Sarah Wood against Frank Jerome. From a county court judgment rendered in favor of plaintiff on an appeal from a justice of the peace, defendant appeals.

<p>1. Appellate Practifce — Robbery — Evidence — Identification — Question for Jury — Verdict Not Disturbed on Appeal.</p> <p>In a prosecution for robbery, the prosecuting witness testified that he identified the defendants as the persons who robbed him, and in this he was corroborated by witnesses who saw defendants in the vicinity of the robbery near the time of its occurrence. The defendants denied positively that they committed the offense. Held, that, the question having been properly submitted to the jury, the verdict will not be set aside as manifestly against the weight of the evidence. — P. 204.</p> <p>2. Appellate Practice — Practice in Criminal Cases — Evidence— Res Gestae — Harmless Error.</p> <p>In a prosecution for robbery, the prosecuting witness was allowed to testify, over the objection of defendants, that about an hour and a half after the robbery he made complaint under oath before a justice of the peace charging the defendants with having committed the offense. Held, that such evidence was not part of the' res gestae and was irrelevant, but, since the jury must have known that the prosecuting witness had charged the defendants with the crime, the fact that he was permitted to testify that he did so charge them, on the night the offense was committed could not have prejudiced defendants, — P, 204.</p> <p>3. Practice in Criminal Cases — Alibi—Evidence—Rebuttal.</p> <p>In a prosecution for robbery, defendants testified that they were not at the place of the robbery at all, and one of them testified that at the time of the robbery he was at another certain place in the city. Held, that it was proper rebuttal testimony to show by witnesses whose names were not indorsed upon the information that they had met one of the defendants at a place other than where he said he was, since such evidence tended to disprove the alibi story of the defendants. — P. 205.</p> <p>4. Practice in Criminal Cases — Jury—Special Venire — Deputy Sheriff — Challenge to Array — Grounds.</p> <p>A special venire was issued in a criminal case and given to a deputy sheriff to serve. The deputy had been duly appointed and had taken his oath of office, and there was no showing that he was incompetent or that the jurors summoned by him were prejudiced. Held, that a challenge to the array, upon the grounds that the deputy had not recorded his commission as required by law and that the venire was not delivered to the sheriff who was present in person, was properly overruled.— P. 205.</p> <p>5. Same — Alleged Disqualification of a Juror — Conflicting Evidence — Finding Not Disturbed on Appeal.</p> <p>One of the grounds urged for a new trial, on a conviction of robbery, was that a juror had previously expressed an opinion concerning the guilt or innocence of the defendants notwithstanding his' statement to the contrary upon his examination. The juror denied such allegation, and stated that his testimony upon his examination as a juror was correct. Held, that the court, in denying the motion for a new trial, must have found this issue of fact against the defendants, and such finding will not be disturbed on appeal. — P. 207.</p>

Appeal from the District Court of Montezuma County. Hon. James L. Russell, Judge. Action by Henry C. Wheeler against the board of county commissioners of Montezuma county. Prom a judgment for plaintiff, defendant appeals.

<p>1. Water Rights — Injunction — Complaint — Sufficiency — Issues Raised by Answer.</p> <p>In an action to restrain the wrongful diversion of water, the complaint alleged that plaintiff was the owner of certain described agricultural lands for which water was necessary; that he was the owner of certain ditches and water rights of a decreed priority; that he was in immediate need of water for irrigating his lands; that defendants threatened to divert the same from the common source of supply, and had theretofore unlawfully diverted it to plaintiff’s injury; that there was an insufficient flow in the stream at the time in question to supply the priorities of both plaintiff and defendants; and that defendants did not have or claim a superior priority. Held, that the complaint, though demurrable for uncertainty, was cured by defendants’ answers, raising an issue as to plaintiff’s ownership and showing that one of defendants claimed under the same decree which measured the rights of plaintiff, and which alleged that, if plaintiff had not been extravagant and wasteful of the water, there would have been enough for all. — P. 219.</p> <p>2. Same.</p> <p>In an action by a senior appropriator to restrain junior appropriators from an unlawful diversion of water, a complaint merely alleging that plaintiff_has a priority superior to that of the defendants, with which they are interfering, is but a mere conclusion of law, and is not a sufficient statement of ultimate facts constituting a prior appropriation, as it is necessary to state the facts which show such appropriation and its priority; yet where it appears from the allegations of the complaint in connection with those of the answer and its denials that the parties claim under the same decree, and that plaintiff’s priority is superior to that of the defendants, and the dates of the respective diversions and applications to a beneficial use are shown, and that defendants have interfered and proposed to divert the water to the injury of plaintiff, a cause of action is made to appear in so far as concerns the necessary averments of plaintiff’s superior rights, and his ownership. — P. 220.</p>

<p>1. Pleading — Demurrer—Ground of Uncertainty.</p> <p>Objections to a pleading for uncertainty can-be raised by demurrer. — P. 225.</p> <p>2. Real Property — Reversion—Action to Recover — Complaint— Sufficiency.</p> <p>In an action-to recover lands formerly designated as portions of streets, title being based upon an alleged reversion to original grantor and by deed to plaintiff, the complaint must allege how and when the property reverted to the original grantor. — P. 226.</p> <p>3. Pleading — Complaint — Demurrer — 'Insufficiency of Facts— When Interposed.</p> <p>A demurrer upon the ground that the -complaint does not state facts sufficient to constitute a cause of action, may be interposed at any time in the hearing of á case and in any court. —P. 226.</p> <p>4. Real Property — Action to Recover — Plaintiff's Right Based on His Own Title.</p> <p>In an action to recover real property, plaintiff can only recover, if at all, upon the strength of his own title. — P. 226.</p> <p>5. Cities and Towns — Dedication of Streets — Presumptions— Statutory Construction.</p> <p>Where, in an action to recover lands formerly included in certain streets alleged to have reverted to the original grantor, it appears from the complaint that the map or plat of the town was duly recorded in the office of the recorder of the county and that the plats of the streets in controversy were also duly recorded, it will be presumed as against the pleader that all the plats mentioned were made, certified, acknowledged and recorded as required by law; and from a further allegation that this town was later included in another town duly incorporated, it will be presumed that the limits of the latter town were extended in the manner recognized by law, and that the title to said streets dedicated by the plats became vested therein by statutory dedication, which divests the original grantor of title without acceptance by the town, in accordance with Mills’ Ann. • Stats., § 4369, providing that all streets, etc., designated or described as for public use on a map or plat of any city, shall be deemed to be public property, and the- fee thereto be vested in said city or town. — -P. 226.</p> <p>6. Same — Abandonment—Reversion.</p> <p>In accordance with Mills’ Ann. Stats., § 4370, the title to - streets abandoned reverts to the respective abutting lot owners, and not to the original grantor. — P. 228.</p> <p>7. Real Property — Reversion—Determination of Estate.</p> <p>There can be no reversion in law except upon the determination of the particular estate. — P. 228.</p> <p>8. Cities and Towns — Abandonment of Streets — Action to Recover — Complaint—Judgment in Conformity with Pleadings.</p> <p>Where, in an action to recover portions of abandoned streets, the complaint described the lands included within the boundaries of said streets and claimed title through an alleged reversion to ihe original grantor, the plaintiff cannot recover as the owner of abutting lots. — P. 229.</p> <p>9. Same — Construing Pleadings.</p> <p>In an action to recover lands formerly included in abandoned streets, an allegation in the complaint that on a certain date plaintiff’s grantor was the owner of a tract of land and platted the streets, having their boundaries in said land, falls far short of alleging the owners of the lots abutting these streets twenty years later and at the date of the alleged abandonment. —P. 230.</p>

<p>1. Railroads — Liability for Injuries — Limitation by Contract— When Valid.</p> <p>While a common carrier may not exempt itself by contract from liability for negligently performing a service which it is its duty to perform, it may do so with respect to those duties which it is not so bound to perform, and in such cases its liability to one injured will depend upon the terms of such contract. —P. 236.</p> <p>2. Railroads — Sleeping Car Companies — Sleeping Car Employees —Relation.</p> <p>A railroad company is under no obligation as a common carrier to haul either the sleeping cars of another or the persons employed in connection therewith, and therefore it has the legal right to dictate the terms upon which it will do so. — P. 237.</p> <p>3. Same — Liability for Injuries — Contracts Exempting Liability —Validity—Constitutional Law.</p> <p>A conductor in charge of a sleeping car, hauled by a railroad company under a contract with a sleeping car company, which includes the transportation of such employee, is not a passenger; and the limitation, by the terms of such contract, of the railroad company’s liability for injuries to him, is not void as against public policy, nor as being in contravention of § 6, art. 15, Colo, const., preventing discrimination, or of § 15 of the same article, providing that a contract of an employee to release his employer from liability for the negligence of the latter, shall be void. — P. 246.</p> <p>4. Same — Rights of Parties Under Contracts.</p> <p>A sleeping car company entered into a contract with a railroad company, whereby the latter agreed to haul the cars of the former; and it was further agreed that, in ease of injuries to the sleeping car employees, the railroad company should only be liable to the same extent as though the employee were its own. A contract between the sleeping car company and its employee provided that the latter, while engaged in the performance of his duties, should not have the right of a passenger as against the railroad company, and the employee further released the railroad company from any liability for personal injury. Held, that the railroad company is entitled to enforce the provisions of the contract between the sleeping car company and its employee so as to avoid any liability for an injury sustained by the latter, since such contract was made for the benefit of the railroad company. — P. 249.</p>

Hon. George W. Allen, Judge. Action by William Lawson and Eugene McCarthy, individually and as members of the board of county commissioners of the city and county of Denver, against S. D. C. Hays and George' I. Curtice. From a judgment for defendants, plaintiffs bring error. Plaintiffs filed a motion in this court asking for a temporary writ of injunction to the same effect as the one dissolved by .the district court.

Hon. J. W. Swisher, Judge. Mandamus proceedings by Henry Lehman and James C. Mugrage against J. N. Pettingell, as county clerk of Grand county, Colorado, and J. É. Brown, as justice of the peace for the third precinct of said county, and C. H. Nuckolls, as justice of the peace for the second precinct of said county, to compel defendants to canvass the returns of an election. From a judgment for defendants, plaintiffs bring error.

<p>1. Partnership — Accounting—Pleading—Matters Outside of Firm ■ Business — Evidence.</p> <p>Where, in an action for a partnership accounting, the pleadings related solely to obtaining such accounting, a note made to the defendant by plaintiff and his wife -previous to the partnership formation, and in no way relating to partnership matters, is not an issue in the case, and any evidence in relation thereto was improperly admitted. — P. 267.</p> <p>2. Partnership — Accounting—Real Estate Obtained with Partnership Funds.</p> <p>Where a partner exchanged firm property for land and took the latter in his own name and refused to transfer- any part to his partner, the land belongs to the firm, and the former will be deemed to hold the same in trust for the use and benefit of the partnership. — P. 268.</p> <p>3. Partnership — Accounting—Use of Private Funds.</p> <p>Where, in an action for a partnership accounting, it appeared from the evidence that one of the partners had used partnership funds and had contributed private funds for the use of the firm, the account between such partner and the firm should have been determined and a finding made as to whether or not a balance existed in favor of one or the other, and, until this was done the accounting was not complete. — P. 268.</p> <p>4. Partnership — Accounting—Judgment—Vacating—Necessity of Notice.</p> <p>In an action for a partnership accounting, a report of an expense account incurred in the collection of firm indebtedness was submitted by defendant and rejected by the court, and judgment rendered without considering such items. After adjournment, and in' the absence of plaintiff and his attorney and without notice to either, the report was again submitted, and was allowed, and the former judgment was erased from the docket and a new judgment entered therein embracing the matters included in such report. Held, that plaintiff was entitled to have the latter judgment set aside upon a showing that he had received no notice of defendant’s intention to have the former judgment modified. — P. 269.</p>

<p>1. Public Lands — Animals—Stock-grazing Privileges — Statutory Construction.</p> <p>There is an implied license that the public lands of the United States shall be free to the people who seek to use them for the purpose of grazing stock, so long as the government does not forbid such use; and, to protect this use, the act of Congress of 1885 (U. S. Comp. Stats. 1901, p. 1524) was passed, and our own state laws bearing upon the subject indicate the same policy; but such privilege cannot be monopolized by any one, directly or indirectly, or under claim that one is but protecting his own land. — P. 274.</p> <p>2. Same — Unfenced^ Private Lands — Right to Drive Off Trespassing Cattle.</p> <p>Parties have the right to drive trespassing cattle from their own unfenced lands, exercising that degree of care to prevent injury that would ordinarily be observed by a prudent person, but when the cattle cross the line' onto' government land, the right to drive further ceases, since the cattle of the public generally have a right to graze thereon. — P. 275.</p> <p>3. Public Lands — Animals — Stock-grazing Privileges — Uninclosed Lands — Common Law.</p> <p>The principle of law derived from England, that the owner must prevent his stock from going on the uninclosed lands of his neighbor, is not applicable to the vast regions of the public domain which have been open to stock-raisers for more than a century. — P. 275.</p> <p>4. Practice in Civil Actions — Damages—Public Lands — Animals —Usual Range — Driving Cattle — Instructions — Statutory Construction.</p> <p>Sections 1424, 1425, Mills’ Ann. Stats., provide that if any person shall maliciously drive cattle from their usual range, he shall be deemed guilty of a misdemeanor and shall be liable to the party injured by such action in three times the amount of the actual injury occasioned. In an action to recover for the wrongful driving of plaintiff’s cattle from their usual range, it being undisputed that the vicinity from where the cattle were driven was their usual range, it was not necessary to instruct as to the quantum of proof required to establish the fact that defendants had willfully driven the cattle from their usual range; nor was it necessary to give an instruction defining the word “range,” when the undisputed testimony showed that the government lands from which they were driven was their usual range. —P. 276.</p> <p>5. Same — Words and Phrases.</p> <p>Under Mills’ Ann. Stats., §§ 1424, 1425, providing that if any person shall maliciously drive cattle from their usual range, he shall be deemed guilty of a misdemeanor and shall be liable to the party injured by such action in three times the amount of the actual injury occasioned by the commission of the offense, it is not necessary, in order to establish a cause of action thereunder, to show that- they were driven beyond the limits of the territory within which they may naturally range, since willful driving to any material extent from public domain within such territory to another locality, within or without such territory, is driving from their usual range. — P. 277.</p> <p>6. Appellate Practice — Practice in Civil Actions — Damages—Instructions Refused — Harmless Error.</p> <p>Where, in an action to recover for the wrongful driving of plaintiff’s cattle from their usual range, which was composed of alternate leased and public section's, there being no claim on plaintiff’s part that he had the right to pasture defendant’s leased land, the refusal of an instruction that lands which are the subject of private ownership do not constitute a cattle range within the meaning of the law against the express will of the owner, was not prejudicial to defendants. — P. 277.</p> <p>7. Animals — Public Lands — Cattle Wandering Thereon — Uninclosed Land — Liability.</p> <p>One who turns his cattle out to graze, unrestrained, upon lands where he has a right to turn them, although knowing that they will probably wander upon the uninclosed premises of another, is under no obligation to prevent them entering upon such premises; and, if they do so enter through following their natural instincts, he is not responsible for the damages occasioned thereby. — P. 278.</p> <p>8. Practice in Civil Actions — Animals—Damages—Public Lands — Usual Range — Driving Cattle — Defenses — Advice of Counsel.</p> <p>In an action to recover actual damages for the wrongful driving of plaintiff’s cattle from their usual range, it was not error to refuse an instruction that the jury might consider whether or not the defendants, before driving the cattle, in good faith took legal advice and were governed thereby in what they did; since advice of counsel does not bar an action, nor is it any defense to one for actual damages caused by a wrongful act, but is limited to mitigation of vindictive damages sought to be recovered. — P. 280.</p> <p>9. Public Lands — Animals—Usual Range — Words and Phrases.</p> <p>Under Mills’ Ann. Stats., §§ 1424, 1425, providing that if any person shall maliciously drive cattle from their usual range, he shall be deemed guilty of a misdemeanor and shall be liable to the party injured by such action in three times the amount of the actual injury occasioned by the commission of the offense, the word “maliciously” means a wrongful act done intentionally, without just cause or excuse. — P. 280.</p> <p>10. Appellate Practice — Evidence—Proof of Admitted Fact— Harmless Error.</p> <p>A party cannot successfully complain, on appeal, of the alleged erroneous admission or rejection of testimony which tends to prove an act that he himself admits he committed. — ■ P. 281.</p> <p>11. Practice in Civil Actions — Verdict—Damages—Computation.</p> <p>In an action to recover under a statute allowing the successful party a sum which is determined by multiplying the actual damages sustained a specified number of times, it is immaterial whether the jury return in their verdict the sum which the plaintiff is entitled to recover by virtue of the statute, or whether they return the actual damages and the court directs the judgment to be entered in accordance with the statute. — P. 281.</p> <p>12. Practice in Civil Actions — Motion for New Trial — Verdict— Affidavit of Juror to Impeach.</p> <p>. On a motion for a new trial, the affidavit of a juror cannot be received to impeach a verdict. — P. 282.</p>

<p>1. Corporations — Consolidation—Status—Actions Against — Statutory Construction.</p> <p>Section 628, Mills’ Ann. Stats., authorizing the consolidation of corporations, provides that, when certain conditions have been complied with, the directors of the consolidating companies shall transfer all property to the consolidated company; that the directors of the latter company shall call in and cancel all the stock of the former companies, and issue in lieu thereof the stock of the new company; that, when so consolidated, the stock of the old companies, whether surrendered or not, shall thereafter represent only its interest in the new organization; and that the latter shall be responsible for, and shall assume and pay, all the just liabilities of the former. Held, that after consolidation in accordance with these provisions the old companies cease to exist, and they are not, kept alive by § 630, which provides that such consolidations shall not affect suits pending in which such corporations shall be parties, nor shall such change affect causes of action or the'rights of parties in any particular, nor shall suits brought against such corporations by its former name be abated; that,,if the new company does not want judgment taken against it in a pending suit against the old, it must defend the action, as the suit will not abate; and that, as to causes of action against the old companies upon which suit has not been brought, the new company should be made defendant. — P. 290.</p> <p>2. Practice in Civil Actions — Pleading—Amendments—Parties— Mistake in Name — Statutory Construction.</p> <p>After the consolidation of two corporations, in accordance with § 628, Mills’ Ann. Stats., an action was brought against one of the consolidating companies, and service was made upon the person who was its president and who was also the president of the new company. An answer and other pleadings were filed, the attorney appearing for the old company also being attorney for the new. The defendant’s counsel called attention to the fact that the wrong company was named in the complaint, and, in consideration of a continuance, agreed that the complaint could be amended by substituting the new company for the old; but this not being done at the time, plaintiff later moved to amend the title in this particular. Held, that since the summons was served upon the president of the new company, although as president of the old, and the attorney of the new company filed the answer and other pleadings, although in the name of the old company, since the old company ceased to exist after the consolidation by virtue of the statute, such persons were not officers of the old company but of the new, and the latter must be presumed to have had notice of the action; and since the averments of the complaint showed that the injuries were inflicted after the consolidation, and that, instead of moving by proper motion to quash the summons or the return, the new company, through its president and general attorney, caused an answer to the merits to be filed, and later motions to elect and for a bill of particulars, it must be beld, it being tbe real party in interest, to have appeared in the suit in -which it was sued by a wrong -name, and an amendment changing the name of the party defendant was allowable under § 75, Mills’ Ann. Code. — P. 293.</p> <p>3. Practice in Civil Actions — Ora! Stipulation Not Made in Open Court — Amendment as to Parties.</p> <p>A rule of court that oral agreements will not be enforced unless made in open court, does not interfere with the allowance of an amendment as to parties where the prior agreement of counsel to that effect was testified to before the court, and was not in dispute. — P. 295.</p>

<p> Appeal from the District Court of the City and County of Denver. </p> <p> Hon. P. L. Palmer, Judge. </p> <p>Action by The National Advertising Company against Samuel V. Newell and Lyne S. Newell, Jr. From a judgment for plaintiff, defendants appeal.</p>

<p> Appeal from the District Court of the City and County of Denver. </p> <p> Hon. P. L. Palmer, Judge. </p> <p>Action by Clifton Wood Walters against Tbe Denver Consolidated Electric Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Former Opinion Followed.</p> <p>The judgment in this case is reversed in accordance with Denver Cons. Elec. Co. v. Walters, No. 4713, ante, p. 301.</p>

<p>1. Corporations — -Savings Banks — -.Stock — Transfers on Stock Book — Limitation of Time — Statutory Construction — Common Law.</p> <p>Mills’ Ann. Stats., § 508, provides that no transfer of stock in any such corporation shall be valid for any purpose whatsoever, except to render the person to whom it shall be transferred liable for the debts of the company, unless the transfer shall have been entered on the stock book within sixty days from the date of transfer. Held, that this provision deprives the owner of the stock of the right to transfer it in accordance with the known rules of the' common law; and that, where stock in a savings bank was delivered to a third person and no attempt was made by him to have the transfer entered on the books of the bank for two years, he is not entitled to the' stock as against the bank claiming a statutory lien upon the same to secure money loaned the registered holder. — P. 322.</p> <p>2. Corporations — Banks and Banking — Knowledge of Facts Acquired by Officers While Attending Private Business — Not Notice to Corporation.</p> <p>Where the cashier of a bank, acting in his personal capacity, transferred certain of his stock in the bank to a third person, and such transfer was not presented for 'entry on the bank’s books until after the expiration of the sixty days required by statute, the bank was not charged with notice of the transfer by reason of its cashier’s knowledge thereof, so as to defeat its statutory lien upon the stock for money due it from such cashier. — P. 323.</p>

<p>Appellate Practice — Findings Based on Conflicting Evidence Not Disturbed on Appeal.</p> <p>The finding of a trial court based on conflicting evidence will not be disturbed on appeal where there is sufficient competent evidence to support it.- — P. 325.</p>

<p>1. Appellate Practice — Overruling Motion to Make More Specific — Party Not Prejudiced by Ruling.</p> <p>Where a motion to make more definite and certain was overruled, and the admission of evidence was not restricted under the issues as framed and tried to the court, and the appellant was not prejudiced thereby, such ruling will be sustained on appeal. — P. 327.</p> <p>'2. Real Property — 'Fixtures—Buildings.</p> <p>Where a building is built upon a substantial rock foundation and for permanent use, and erected to effectuate the purpose for which the land upon which it is built was conveyed, it becomes a fixture and part of the realty. — P. 328.</p> <p>3. Estoppel — Inconsistent Positions.</p> <p>Where a person claims certain property by virtue of an agreement that it was given in settlement of a claim, and after-wards obtains a judgment based upon the same claim, such person must rely upon the one or the other, and, after having obtained the judgment, it seems of necessity that the judgment must be the one relied upon. — P. 329.</p> <p>4. Real Property — Reversions—Fixtures—Buildings—Right to Remove.</p> <p>Where land is. conveyed to be used for a certain purpose with reversion, when ceasing to be so used, and a permanent building is erected upon a substantial rock foundation to effectuate such purpose, the building cannot be removed, after the business ceases, by assigns of the grantee, since the title thereto can only pass by executing a deed for the land and the building. —P. 330.</p> <p>5. Same — Rights of Third Persons.</p> <p>Where plaintiff conveyed land to be used for a certain purpose with reversion when ceasing to be so used, and a permanent building is erected upon a substantial rock foundation to effectuate such purpose, and the plaintiff took possession of the premises after the business had closed and later tore down the' building and removed the lumber, defendant, claiming the lumber under an agreement with the grantee, cannot question the method of the plaintiff in enforcing the forfeiture, since the grantee alone can raise that question. — P. 331.</p>

<p> Error to the District Court of Prowers County. </p> <p> Eon. Jesse G. Northcutt, Judge. </p> <p>Action by The Ft. Lyon Canal Company, William 0 ’Neill and D. S. Elliott against The Arkansas Valley Sugar Beet and Irrigated Land Company and E. B. Chew, as superintendent of irrigation for water district No. 2 of the state of Colorado. From a judgment for defendants, plaintiffs bring error.</p>

Hon. N. Walter Dixon, Judge. Action by diaries Ganse against L. Baldwin & Co., Levi Baldwin, Lee Baldwin, Fred Baldwin and Anna Baldwin — upon the death of Canse, George F. Patrick, the administrator of his estate, was substituted as plaintiff; From a judgment for plaintiff, defendants appeal.

<p>1. Animals — Agistor—Liability for Loss.</p> <p>The failure of an agistor to exercise ordinary care in maintaining reasonably good fences to keep the stock in, renders him liable for the value of animals thereby becoming lost to the owner. — P. 354.</p> <p>2. Appellate Practice — Judgments—Based Upon Conflicting Evidence — Not Disturbed On Appeal.</p> <p>The judgment of a trial court based upon conflicting evidence will not he disturbed on appeal. — P. 354.</p>

<p>1. Estates of Decedents — Real Estate — Sale Under Order of Court — Action to Set Aside — Pleading—Courts—Jurisdiction.</p> <p>A complaint, in an action to set aside a sale of lands by the administrator, which alleges that the sale was made pursuant to the decree of the county court, that the administrator executed his deed therefor, and that several years elapsed between the sale and the bringing of the action, sufficiently alleges the final disposition of the sale in the' county court so as to vest the district court with jurisdiction of such action, since the statute requires that a report of the sale shall be made at the term of the court next succeeding the sale, and that a conveyance shall not be made until after the sale is approved. — P. 358.</p> <p>2. Appellate Practice — Estates of Decedents — Sale of Real Property — Special Statutory Proceeding — Final Judgments.</p> <p>A proceeding to sell the real estate of á decedent is a special statutory proceeding separate and distinct from the administration of the estate proper, and the decision of the county court therein is a final judgment reviewable upon writ of error. — P. 358.</p>

Eon. Theron Stevens, Judge. Action by F. W. Stubbs and L. C. Jakway, co-partners as Stubbs & Jakway, against The San Miguel Consolidated Gold Mining Company for breach of contract. From a judgment for plaintiffs, defendant brings error.

<p>1. Appellate Practice — Findings Based on Conflicting Evidence —Not Disturbed on Appeal.</p> <p>Where the evidence is directly conflicting, although there may be evidence tending' to show a different conclusion than that reached by the trial court, since that court saw the witnesses and heard them testify, the finding will not be disturbed -on appeal. — P. 369.</p> <p>2. Chattel Mortgages — Default—Failure to Take Possession— Fraudulent Per Se — Statutory Construction.</p> <p>Under the statutes of Colorado, the failure of a chattel mortgagee to take possession' of the mortgaged property within a reasonable time after default, makes the mortgage fraudulent per se as to subsequent purchasers and creditors, and the failure so to do cannot be explained. — P. 370.</p> <p>3. Chattel Mortgages — Default—Failure to Take Possession— Reasonable Time — Statutory Construction — Effect on Second Mortgagee.</p> <p>Under Sess. Laws 1899, c. 86, declaring 30 days, to be a reasonable .time after default within which to take possession of mortgaged chattels, where the first mortgagee permitted the property to remain in the hands of the mortgagor for more than thirty days, the second mortgagee, taking possession thereafter but prior to- the first mortgagee claiming possession, has a prior right to the property, although his mortgage was “subject” to the first, and his debt had been matured for more than four months, since, under the circumstances, the one first acquiring possession was entitled to priority. — P. 373.</p> <p>4. Chattel Mortgages — Two Mortgagees — Marshaling Assets-*— Rule Not Applicable to Issues.</p> <p>Where, in an action by -one mortgagor against another for the return of the mortgaged property, there is no issue' that defendant’s mortgage covers other property than that included in plaintiff’s mortgage, and no evidence as to the value or amount of any such property, the rule analogous to the marshaling of assets, to the effect that defendant must first resort to such property before applying the property covered by both mortgages to his debt, cannot be invoked by plaintiff. — P. 373.</p>

Hon. Chas. C. Holbrook, Judge. Action by the people against The Weiss-Chapman Drug Company for a penalty for violation of a town ordinance. From a judgment in favor of plaintiff, defendant appeals.

<p> Error to the District Court of Boulder County. </p> <p> Hon. Christian A. Bennett, Judge. </p> <p>Action by John Campbell and Annie Campbell against Tbe Louisville Coal Mining Company. From a judgment for defendant, plaintiffs bring error.</p>

Hon. Jesse G. Northcutt, Judge. Actions by Edith P. Maloney and by Mary S. Allen against The Florence & Cripple Creek Railroad Company, by consent consolidated for trial. From judgments in fa.vor of defendant in each case, plaintiffs appeal. These eases were originally brought by the appellants respectively. The facts being the same in each, they were by consent consolidated for trial.

Appeal from the County Court of the City and County of Denver. Hon. Ben. B. Lindsey, Judge. Action by Moses Hallett against S. E. Joss. Prom a judgment in favor of plaintiff, affirming a judgment of a justice of the peace, defendant appeals.

<p>1. Trusts — Resulting Trusts — Payment of Consideration — Husband and Wife.</p> <p>Where a bond for a deed was made in the name of the wife, and the husband paid the consideration in order, as he testified, that she might have a home in case anything should happen to him, the transaction constitutes a valid gift, and not a resulting trust. — P. 402.</p> <p>2. Same — Evidence—Sufficiency—Presumptions.</p> <p>In an action to quiet title, the issue was upon the question of whether the bond for a deed made to a certain woman was impressed with a resulting trust in favor of plaintiff, who had paid the purchase price. Plaintiff testified that he had caused the bond to be made to the woman so that she would have a home in case anything should happen to him. Both had the same surname and were living together, and, when directing the bond, and repeatedly in his testimony, plaintiff referred to her as “Mrs.,” and once at least, while testifying, referred to her as his wife. One witness testified to a conversation in which the woman had stated to plaintiff that he was not her husband and never had been, and that she had no husband. Held, that, for the purposes of this case, the evidence is sufficient to warrant a finding that they were husband and wife, since their conduct was such as to lead any one to believe -that they were; and it will be presumed that they were honest people, and were not sustaining a relationship violative of law. — P. 403.</p> <p>3. Quieting Title — No Title in Plaintiff — Fraud of Defendants Cannot Be Inquired into.</p> <p>Plaintiff brought an action against his wife and another to quiet title to certain lands for which he had paid the purchasé price, but for which a bond for a deed had been made out in his wife’s name, who had assigned the same to her co-defendant, and the latter had obtained a warranty deed therefor. Held, that, since the bond made out to the wife constituted a valid gift and not a resulting trust, although'the transaction between, the defendants bears sufficient evidence of bad faith and fraud to probably result in setting the conveyance aside at the instance of creditors of the wife, or at the instance of plaintiff had he' any legal or equitable interest, since creditors are not complaining and the plaintiff has no interest in the property, the nature' of such transaction cannot be' investigated in this proceeding.— P. 403.</p>

<p>1. Practice in Civil Actions — Judgment on the Pleadings — When Proper.</p> <p>A motion for judgment on the pleadings cannot be sustained, unless, under the admitted facts, the moving party is entitled to judgment without regard to what the findings might be on the facts upon which issue is joined. — P. 405.</p> <p>2. Same.</p> <p>In an action to restrain defendants from shutting off water theretofore furnished to plaintiffs for irrigation, the answer denied all the allegations of the complaint except that one of the defendants was a corporation and that the owners of certain property had operated an artesian well and had theretofore furnished water to plaintiffs, and alleged reasons why it became necessary to change the former rates to ones now demanded of those continuing to take water. To this answer was filed a general denial. Held, that it was error to render judgment on the pleadings in favor of plaintiffs. — P. 407.</p> <p>3. Practice in Civil Actions — Pleading—Parties—Representative Capacity — Judgment Not Binding.</p> <p>Where, in an action against a person individually to restrain the shutting off of water theretofore furnished plaintiffs through certain pipes, the answer alleges that the pipes belong to an estate, of which the defendant is administratrix, and that she is acting in the premises in her representative capacity only, a judgment cannot be rendered against the defendant personally, neither can the estate be bound by a judgment rendered against the administratrix personally. — P. 409,</p>

Hon. Louis W. Cunninghann, Judge. Special proceeding by the board of directors of the High Line Irrigation District for the confirmation of their organization and proceedings for the issue and sale of bonds of the district. The proceedings were contested by Thomas F. Ahern, Nellie M. Ahern, Helen H. Old, John W. Old, George H. Old, Edwin H. Park and Carrie L. Old-P'ark, owning land within the district.

<p>1. Taxes and Taxation — Quieting Title — Tax Deeds Void on Face — Not Admissible to Prove Color of Title.</p> <p>In an action to quiet title based on tax deeds, a tax deed void upon its face is not admissible to support color of title. —P. 428.</p> <p>2. Taxes and Taxation — Quieting Title — Tax Deeds — Pleading and Proof.</p> <p>Where, in an action to quiet title based on tax deeds, defendant merely denies possession and title of plaintiff and asserts title in himself, he cannot introduce evidence to show the invalidity of one of the tax deeds valid.on its face, since this should be pleaded as new matter. — P. 429.</p> <p>3. Same.</p> <p>In an action „o quiet title, the defendant cannot put the plaintiff upon proof of his possession and title by a simple denial. —P. 429.</p> <p>4. Same — Answer—Amendments.</p> <p>In an action to quiet title based upon tax deeds, of which the first is void upon its face, and the second covering in part the same property conflicts in its statement of facts with the first, the defendant should be permitted to amend his pleadings so as to introduce evidence showing the invalidity of the second deed. — P. 430.</p> <p>5. Quieting Title — Adverse Possession — Statute of Limitations— Insufficient Pleading.</p> <p>In an action to quiet title, a complaint alleging that plaintiff and her grantor have been in quiet and peaceable possession under color of title, and have paid the taxes thereon for more than seven years last past, is insufficient to show title by adverse possession, since it fails to show that plaintiff paid for seven successive years all taxes legally assessed, or to allege any paper title or any possession under claim and color of title made in good faith. — P. 432.</p> <p>6. Quieting Title — Adverse Possession — Payment of Taxes. — Continuity of Payment — Statutory Construction.</p> <p>Section 2923e, Mills’ (Rev.) Stats., gives title to one in possession of lands for seven successive years under claim and color of title made in good faith, who during all of said time shall pay all taxes assessed thereon. Held, that, where one in possession for seven years failed to pay the taxes for one of these years, which was paid by the owner, no title was acquired under the statute. — P. 432.</p> <p>7. Quieting Title — Adverse Possession — Enclosure—Evidence— Statutory Construction.</p> <p>In an action to quiet title, where plaintiff relies upon adverse possession under the statute, evidence that for a time the land was fenced in common with land belonging to other parties, and that thereafter the fence was taken away, is not competent to show adverse possession, since the statute requires actual and exclusive possession.' — P. 433.</p> <p>8. Quieting Title — Adverse Possession — Redemption from Tax Sale — Not Payment of Taxes Under Statute.</p> <p>A redemption from tax sale does not constitute payment of taxes so as to sustain adverse possession under the statute. — P. 434.</p> <p>9. Attorney and Client — Duties and Liabilities — Acquiring Adverse Interests with Notice.</p> <p>In an action to quiet title, an allegation that at the time the defendant acquired his quit-claim deed he was acting for the plaintiff’s grantor, and was attorney for and agent of the grantor in procuring it, and procured it for such grantor’s use and benefit, and held it in trust for the plaintiff as grantee of the whole title, without any allegation concerning the fraud and wrong of the defendant, is not sufficient to constitute a cause of action. — P. 434.</p> <p>10. Quieting Title — Pleading—Complaint—Replication—Departure.</p> <p>Where, in an action to quiet title, the complaint alleges that the defendant has no estate, title, or interest in the premises or any part thereof; and the replication'alleges that he has a title in trust for plaintiff, and asks to have it canceled, but not conveyed to plaintiff, there is such a departure that no evidence should be received in support of them. — P. 434.</p> <p>11. Attorney and Client — Mutual Duties and Obligations — Acquiring Adverse Interests.</p> <p>Where an attorney advised his client as to the necessity of purchasing an outstanding title against lands claimed by her, and she refused to do so, whereupon the attorney purchased such title himself, he does not hold the title in trust for the client. —P. 435.</p>

<p>1. Damages — Fellow-Servants—Evidence.</p> <p>la an action for injuries received, evidence reviewed and held insufficient to establish the relation of fellow-servants.— P. 437.</p> <p>2. Damages — Evidence Sufficient to Sustain Negligence.</p> <p>In an action for injuries received, evidence reviewed and held sufficient to establish that plaintiff was injured by the negligence of defendant’s employee. — P. 441.</p> <p>3. Damages — Evidence—Admissibility Under Pleadings.</p> <p>In an action for injuries received, the complaint alleged that on account of the injuries plaintiff had been unable to work from the time of the injury, had been confined to the hospital, had suffered great pain and agony, had been crippled for life, and for a long time would be wholly incapacitated from performing any labor, to his injury in a certain sum. Held, that such allegations are sufficient to admit proof of plaintiff’s earning capacity and the character of Ms occupation. — P. 442.</p> <p>4. Practice in Civil Actions — Instructions in the Absence of Specific Request.</p> <p>In an action for injuries received on account of alleged negligence of defendant’s employee, an instruction that if the injury was the result of the overturning of a refrigerator on account of the truck upon which it was being wheeled striking against an upraise' between the running board and the floor of defendant’s van, yet if this upraise was known to defendant’s employee, or by the exercise of ordinary care and caution ought to have been known, and the overturning of the refrigerator was due to the want of due care and caution of such employee, the defendant would be liable even though the' van and running board were furnished by plaintiff’s employer, is not objectionable on the ground that the element of discovery of the obstruction in time to avoid the injury is left out, in the absence of a specific request covering such point. — P. 444.</p>

Eon. James E. Garrigues, Judge. Action by The American Surety Company against John H. Empson.. From a judgment for defendant, plaintiff appeals.

<p>1. Pleading — Demurrer—Specification of Grounds.</p> <p>A demurrer that several causes of action are improperly joined, and that the complaint is ambiguous, unintelligible and uncertain, does not specify the grounds on which the objections are taken, and may be disregarded in accordance with Mills’ Ann. Code, § 51. — P. 451.</p> <p>2. Gambling — Action for Return of Money — Complaint—Sufficiency.</p> <p>A complaint, alleging that defendants maintained a gambling house; that plaintiff intrusted certain money to another for safe keeping; that while he so held the money, without authority to use it and without the knowledge or consent of plaintiff, he lost it in the gambling house of defendants, and paid it to defendants in gambling, in violation of law and without consideration, to the damage of plaintiff in said amount, and that defendants refused to return it to plaintiff upon demand, states a cause of action. — P. 451.</p> <p>3. Appellate Practice — Rules—Pleadings—Motions to Make Specific — Alleged Grounds of Error Should Be Pointed Out— Presumption.</p> <p>Rulings upon motions to make the pleadings more specific are largely within the discretion of the trial court, and parties relying upon error in such rulings should point out to the appellate court wherein the error lies. Mere statements in the brief that the trial court erred, without presenting reasons or authority, do not appeal to the court; and under the presumptions that the rulings of the trial court are without error, unless the contrary is shown, such statements will not be entitled to much consideration. — P. 452.</p> <p>4. Practice in Civil Actions — Pleading—Bill of Particulars— When Required — Statutory Construction. '</p> <p>In an action to recover money lost by. plaintiff’s husband in gambling covering a period of ten months, in which it is alleged that the money was intrusted to him for safe keeping and was gambled by him without her knowledge or consent, the defendants are not entitled to a bill of particulars including an itemized statement of each separate -item of the amount sued for, the date, and to whom lost, in accordance with Mills’ Ann. Code, § 63 — providing that it shall not be necessary to set forth in the pleading the items of account, but that within four. days after a demand in writing the pleader shall furnish such items or be precluded from giving evidence thereof — since, from the nature of the demand and from the fact that plaintiff did not know her husband was using the money to gamble, it would be impossible to comply with the demand, and for the' further reason that such action is not based upon an account within the meaning of such code provision. — P. 453.</p> <p>5. Practice in Civil Actions — Verdict—Amendment.</p> <p>In an action against two defendants for damages, the jury returned a verdict “for plaintiff” and assessed the damages in a certain sum. Thereupon the court inquired of each juror if it was intended to bind each of the defendants, and, being answered in the’ affirmative, the jurors were asked if they had any objection to the foreman inserting after the word “plaintiff,” the words “and against the defendants and each of them,” to which the foreman replied that they had none. Held, that it was. within the power of the court to request the jury, before leaving the box, to make such correction.- — P. 454.</p> <p>6. New Trials — Grounds—Instructions—Specific Instructions Not Asked.</p> <p>The failure to give specific instructions is not ground for a new trial, unless such instructions, good in point of law, have been requested and refused. — P. 456.</p> <p>7. Gambling — Action for Return of Money — Evidence—Sufficiency.</p> <p>In an action to recover money lost by plaintiff’s husband in gambling, in which it was alleged that the money was intrusted to him for safe keeping and was gambled by him without her knowledge' or consent, uncontradicted evidence is sufficient to support a verdict for plaintiff which shows that plaintiff gave her husband money 'exceeding the amount of the verdict to be held for her use, that defendants maintained a gambling house, that her husband frequented it and lost large sums of money much in excess of the verdict, and that the money so lost was the money of plaintiff. — P. 456.</p>

Hon. Alden Bassett, Judge. Action by Henry Stender against George Zahnen. From a judgment in favor of plaintiff, on appeal from the judgment of a justice of the peace in favor of plaintiff, defendant appeals.

Hon. Ben B. Lvndsey, Judge. Action by M. H. McLaughlin against Edna H.. Harris. From a judgment for plaintiff on appeal from a judgment against her in the justice court, defendant appeals.

<p>1. Practice in Civii Actions — Cancellation of Instruments— Pleading — Evidence.</p> <p>In an action to restrain the sale of property under a trust deed and for the return of the note secured thereby, upon the ground that it was an accommodation note and without consideration, the defendant, under an answer denying such allegations, may give evidence tending to prove consideration, since such evidence tends to disprove the allegations of the complaint. — P. 466.</p> <p>2. Appellate Practice — Matters Not Shown in Abstract — Errors Not Pointed Out.</p> <p>Evidence not presented by the abstract will not be reviewed on appeal, nor will the appellate court search for errors not specifically pointed out. — P. 468.</p>

Hon. B. D. McLeod, Judge. Action by Julia Barnett against Thomas Taylor. From a judgment for plaintiff in the county court on appeal from a similar judgment in the justice court, defendant appeals. This action was originally brought by the appellee before a justice of the peace to recover the sum of $20 for services rendered appellant’s wife during her last illness. Prom a judgment in her favor, Taylor appealed the case to the county court.

<p>1. Judgments — Setting Aside Default — Discretion of Court.</p> <p>A motion, to vacate and set aside a default is addressed to the sound discretion of the court, and the order of the trial court will not be disturbed unless it clearly appears that there was an abuse of such discretion. — P. 479.</p> <p>2. Same.</p> <p>Where a default for failure to reply to new matter in an answer and cross-complaint was entered sixteen months after they were filed, and a motion and affidavit to set aside the default was filed eight months later, and failed to show that plaintiff, in permitting default, was excusable, overruling the motion was not abuse of discretion. — P. 479.</p> <p>3. Counter-claim — Matters which May Be Pleaded — Statutory Construction.</p> <p>Where the contract sued on constitutes the foundation upon which the plaintiff and defendant both rely for a recovery, the defendant may plead a modification of the contract as a basis for his counter-claim, under Mills’ Ann. Code, § 57, subd. 1, providing that a counter-claim may be on a cause of action arising out of the transaction set forth in the complaint, or connected with the subject of the action — and this although the facts entering into plaintiff’s case do not enter into defendant’s, and vice versa, for from the nature of the subject this must always be so. — P. 481.</p> <p>4. Same.</p> <p>In the enactment of Mills’ Ann. Code, § 57, the clear intention was to enable the court in one action to settle all matters in controversy relating to the contract or transaction which is the foundation of the suit. The word “transaction” is much more comprehensive than the word “contract”; and, therefore, any cause of action, whatever its nature, arising out of the cause of action alleged in the complaint, or connected therewith, in favor of the defendant and against the plaintiff, is a proper counter-claim. — P. 482.</p> <p>5. Same.</p> <p>Under Mills’ Ann. Code, § 57, subd. 2, providing that, in an action on contract, any other cause of action arising also upon contract and existing at the commencement of the action may he set up in a counter-claim, such counter-claim must be limited to a claim affecting that of plaintiff in such manner as to diminish or defeat it or he antagonistic to it. — P. 483.</p> <p>6. Same.</p> <p>In an action to compel defendant to transfer his interest in certain mining claims to plaintiff under an alleged contract, defendant cannot set up in a counter-claim another independent contract in regard to entirely different claims, and ask that plaintiff be compelled to transfer them to him, since such relief is not proper under Mills’ Ann. Code, § 57, subd. 2, providing that, in an action on contract, any other cause of action arising also upon contract and existing at the time of the action, may he set up in a counter-claim. — P. 484.</p>

<p>Juries — Venire—By Whom Served — Bailiff Not Qualified.</p> <p>Mills’ Ann. Stats., § 2613, provides that jurors shall be summoned by a writ of venire facias directed to the sheriff of the proper county. Held, that it was error to deny defendant’s motion to quash a special venire summoned by a bailiff, since such services can only be performed by the sheriff or his deputy, or, in the event of his disqualification, by the coroner, except under certain circumstances, when an elisor may be appointed. — P. '486.</p>

<p> Appeal from the District Court of Bent County. </p> <p> Hon. Jesse G. Northcutt, Judge. </p> <p>Action by John B. O’Neil, Martin O’Neil and William O’Neil, co-partners doing business as O’Neil Brothers, and George Purvis against The Fort Lyon Canal Company, a corporation, Frank Kreyball and John C. Davidson, and other -users of water and water rights from the Fort Lyon canal east of Horse creek, who are similarly situated as to the use of water from the Fort Lyon canal. From a judgment for defendants, plaintiffs appeal.</p>

<p> Appeal from the District Court of Arapahoe County. </p> <p>Hon. P. L. Palmer, Judge.</p> <p>Action by Harris Ornauer against Tlae Penn Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals.</p>