Volume 4 — Colorado Reports

A defective switch on tlie track of the appellant caused the overturning of a car, resulting in tlie death, of James Smith who was being conveyed as a passenger over appellant’s road. Woodward, his administrator, brought an action for the use of Salome Smith, the widow. The declaration was in the ordinary form in case; plea of the general issue. The plaintiff below had judgment on the verdict in the sum of $5,000.

<p> Appeal from, District Court of Bent County. </p>

Wyatt, the appellant, as sheriff, levied upon a wagon in the possession of one Pinneo, under an execution against him. Freeman, the appellee, claimed the ownership of the property, and brought an action'in replevin in a justice’s court against the appellant. The coroner seized the property under the replevin writ and at once turned it over to Freeman. Judgment was entered by the justice against Wyatt by default, and Wyatt appealed to the county court.

<p>A, a drover, agreed in writing to deliver to B, a butcher, a certain number of beef cattle each month, for one year, at a fixed price per cwt. After carrying on the contract for a few months, A, being unable to furnish the requisite quality of beef cattle, agreed verbally with B, that the latter should supply himself and that A would pay the difference between the beef so purchased and the agreed price of the written contract. B purchased several lots of stall-fed Kansas cattle at a greater price than Colorado beef of the quality named in the contract. Upon a suit brought before the expiration of the year by B to recover the difference between the purchase-price and the contract price, held,</p> <p>1. Although the written contract was misdescribed in the special count of the declaration, it was admissible as evidence under the common counts.</p> <p>2. Under the terms of the contract B could have sued for the price of each lot when delivered by himself, and A could sue for the price difference due him upon any one or more purchases'as he might elect.</p> <p>3. Under the verbal contract, B was not at liberty to purchase cattle -brought from without the State at a greater price than Colorado beef of the requisite quality, and charge A with the excess of price. The liability of A is to be measured by the difference between the contract price and the price of marketable Colorado beef at the time of the purchase.</p> <p>4. But evidence as to the purchase of the Kansas cattle was admissible to determine the quantity of beef for which A was chargeable.</p> <p>5. Evidence that A was prepared and willing to furnish beef at the time B was purchasing elsewhere, without showing that such beef was of the agreed quality, was properly rejected.</p> <p>6. A party cannot assign error upon an immaterial issue tendered by himself</p> <p>7. When demand is made upon an opposing attorney in tlie trial of a cause, for tlie production of a paper in Ms possession relating to tlie case, verbal notice is sufficient. The time and place of such notice must be such as to enable the party, under the known circumstances of the case, to comply with the call for the production of the papers. An attorney is bound to answer whether a document is in Ms possession or elsewhere in court.</p>

<p> Error to District Court of Jefferson County. </p> <p>Motion to quash writ of error.</p>

Tripp, the plaintiff in error, brought his action against Fiske, the defendant in error, before a justice of the peace, and recovered judgment for $168. Fiske appealed to the county court. Upon the conclusion of the plaintiff’s testimony in the county court, the defendant moved for a judgment of nonsuit; the motion was sustained, and thereupon the plaintiff sued out this writ of error.

<p> Error to District Court of Arapahoe County. </p> <p>Motion to strike suit from the docket.</p>

Action on the case ; plea of the general issue. The defendant in error had judgment in the court below for seven hundred and fifteen dollars.

The facts are sufficiently stated in the opinion. The fourth and sixth assignments of error were based upon the ruling of the court on the following questions propounded to defendant’s witness at the trial: Q. J ust as that train was passed, then, state whether or not it was possible for the engineer and fireman to see the track in advance of the car 1 Plaintiff objected. Objection sustained and defendant excepted.

<p>1. Title by occupancy is, under the statute of Colorado, an interest in real estate, and such an interest as may be the subject of conveyance by deed.</p> <p>2. A general averment in a declaration, that the plaintiff, on a day specified, was in possession of the premises in question, and that afterward, on a day specified, the defendant entered thereon, and unlawfully withheld possession from the plaintiff, sets out a sufficient cause of action. (R. S. 1868, p. 274, § 7.)</p> <p>3. Ejectment is a possessory action, and to maintain it the defendant must be in possession, actual or constructive, at the time of the commencement of the suit, and possession is presumption of ownership until the contrary is shown. Prior possession alone in the plaintiff will entitle him to recover as against a mere intruder, whose entry is without right or title.</p> <p>4. Where the plaintiff avers title in fee, proof of possession is evidence of seizin in fee in him ; no further or higher evidence of title is required until the defendant shows an anterior possession or has traced title from a paramount source. Hence, if a less estate than a fee is averred, proof of possession is presumptive evidence of seizin under such averred’title.</p> <p>5. The plaintiff need not go back in his title further than to antedate that of the defendant.</p>

Error to Probate Court of Gilpin County. Assumpsit for work and labor, etc.; the declaration consisted of the common counts ; plea of the general issue.

<p>1. The legislature is competent to confer concurrent jurisdiction upon the city and county authorities to demand each a license from an individual for vending spirituous liquors within the city limits.</p> <p>2. Where the legislature vests either in the city or county authorities the exclusive right to license vendors of spirituous liquors, a license to a vendor from the authority exclusively authorized to grant it is all that can be required. (Patón v. The People, 1 Col. 79, distinguished.)</p>

<p> Error to Probate Court of Cilpin County. </p> <p>The case is stated in the opinion.</p>

Mrror to Probate Court of Clear Creek. County. The plaintiff in error, a corporation organized under the statute, brought an action before a justice of the peace against Hutchinson, the defendant in error, to recovera balance of one hundred and sixty-five dollars claimed to be due from Hutchinson for tolls upon its wagon road. The plaintiff had judgment and the defendant appealed to the probate court.

<p>It is error to decree affirmative relief upon. an answer in a suit in equity (in the absence of a cross-bill).praying to be “hence dismissed,” etc. (Monti 'et al. v. Bishop, 3 Col. 605.)</p>

<p>A defendant in a suit in chancery failing to file a cross-bill is not entitled to affirmative relief.</p>

The plaintiff in the court below obtained a verdict in the penalty of the bond, ■ and damages were assessed in the sum of $443.03. A motion for a new trial was overruled and judgment entered on the verdict, and thereupon the defendants prayed an appeal to this court.

Received of George W. Heaton, President of the Sierra Madre Tunnel Company, five hundred dollars in part payment of the sum of five thousand dollars, on payment of which I hereby covenant to him for and in behalf of said company my (160 a) homestead, situate near Black Hawk, aforesaid, together with the fences, houses, tenements, buildings, horses, wagons, tools, water-works, and all and sundry the goods, chattels and property thereon, and I do hereby assign and give over…

<p> Error to District Gourt of Gilpin County. </p> <p>Judgment of nonsuit was entered against the plaintiff in the court below.</p>

Appeal from District Court of Arapahoe County. Assumpsit. The plaintiff had judgment in the court below for $1,857.35. The case is stated in the opinion.

Judgment of nonsuit was entered in the district court. The plaintiff appealed. A motion was made in this court to dismiss the appeal, assigning among other grounds that “the notice of appeal was not served at the time or upon the persons required by law.”

<p>Where a judgment or decree is rendered after the Code went into effect, in a cause commenced prior thereto, the only mode of review, by the party in whose famor the judgment or decree is rendered, is by appeal under the provisions of the Code.</p>

<p>A party aggrieved by a judgment sin the district court in an action begun - prior to the 1st day of October, 1877, may appeal to this court under either the old or new system.</p>

<p> Appeal from District Court of Gilpin County. </p> <p>The case is stated in the opinion.</p>

Whitsett, the plaintiff in the court below, based his action upon the seventh section of chapter thirty-five of the Revised Statutes, concerning forcible entry and detainer.

<p>If a bill of exchange is complete in itself, free from any latent ambiguity, obviously carrying its passport upon its face, there is no need of oral testimony to aid in its exposition. Where there is a latent ambiguity, as between the original parties to the bill and others affected with notice, the real nature of the transaction may be investigated. (Tannatt v. National Bank, 1 Col. 278, disapproved.)</p>

<p>Petition for writ of prohibition. The case is sufficiently stated in the opinion.</p>

<p>In tlxe absence of an agreement of parties, a j udge bas no authority to sign a bill of exceptions tendered after the expiration of tlie time limited by the order of the court.</p>

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

<p> Error to Probate Court of Park County. </p> <p>The case is stated in the opinion.</p>

The complainant’s bill states in substance : That complainant on the 26th of June, 1874, settled upon the west half of north-west quarter, the south-east quarter of north-west quarter and the south-west quarter of north-east quarter of section twenty-one, township forty-five, north, range 10, east New Mexican Meridian, as a homestead and that he has continued to reside thereupon.

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

<p> Appeal from District Court of Clear Creek County. </p>

At the trial in the court below the appellee relied on title derived by discovery, pre-emption and several mesne conveyances from the alleged pre-emptors, to Harris, the discoverer, and from him to Brown. Brown obtained a patent from the government and conveyed his interest to the appellee.

<p>1. Section 340 of the Code leaves it optional with the party seeking an appeal to prepare and file “ a statement on appeal,” yet in the absence of the statutory statement the appellant can only rely upon errors apparent upon the face of the judgment roll.</p> <p>2. A notice of appeal served upon the attorney of the opposite party and five minutes later filed in the office of the clerk ; held, to be substantially cotemporaneous, and a compliance with the requirement of the Code in this particular.</p> <p>3. Where an appeal is dismissed “ without prejudice” by this court, the appellant is not precluded from taking another appeal within the statutory period.</p> <p>4. Where an undertaking on appeal is properly entitled of the cause, reference may be had in the recital to the title to designate the obligee.</p>

At the December term, 1877, the writ of error in this cause was dismissed {ante, p. 53), and thereupon Mr. L. O. Rockwell, for plaintiff in error, filed the following petition for a rehearing: “Your petitioner, George A. Mills, respectfully represents and shows to this honorable court that in failing to pass upon the merits of this case, and in dismissing the writ, error has intervened in this : 1st. Because this case was regularly and properly pending in this court on a…

<p>1. In an indictment for making or passing a forged check, the act of making or passing the check with knowledge of its fictitious character, together with the intent to defraud, are the essential elements of the crime. When these concur, the crime is complete.</p> <p>2. A forged check was passed in consideration of illicit intercourse, and cigars and liquors sold without license at a house of prostitution; that the law was violated in selling liquors and cigars without license in nowise affected or modified the criminal character of the act.</p>

<p> Appeal from District Court of Pueblo Coimty. </p>

<p>Information in the nature of a quo warranto. The respondents demurred.</p>

Debt upon a forfeited recognizance. One Keene was arrested on a charge of grand larceny in Bent county, and taken before a justice of the peace on the 2d day of February, 1877. The justice took his recognizance with Con-nor and others, as sureties for his further appearance on February 8th. Keene failed to appear upon the day designated, and the justice noted the default upon his docket.

<p> Error to Probate Court of Arapahoe County. </p> <p>The plaintiff below had judgment for $606.94. The facts are stated in the opinion.</p>

Assumpsit. The declaration was as follows: “Benjamin F. Whedbee, administrator of all and singular the goods and chattels, rights and credits, which were of M. R. Wills, deceased, at the time of his death, who died intestate complains of Frank E. Moyer and Elisha Duncan, the defendants, in a plea of trespass on the case on promises; For that whereas the defendants on the 14th day of February, A. D. 1868, at Fort Lupton, Weld county, Colorado Territory, aforesaid, made their…

The plaintiff in error was indicted for tire crime of murder at the February term, 1877, of the district court of El Paso county, and at the same term tried and convicted of manslaughter. On the trial the plaintiff in error set up as defense : First, that, at the time of the homicide, the deceased, Francis M. Brown, intended by violence or surprise then and there to kill the plaintiff in error.

<p> Contest for the office of County Judge of Grand County. </p>

<p>1. Where the general issue is pleaded and special pleas are also interposed, setting up a defense available under the general issue, the sustaining a demurrer to the special pleas is no ground for reversal.</p> <p>2. Where a railroad company is authorized bymunicipal law to construct and operate its road through and across a street under such municipal control, it is in the exercise of a lawful right, and is not liable in a common-law action, except for injuries done wantonly or without reasonable care.</p> <p>8. The defendant offered in evidence the ordinance of the city authorizing it to locate, construct, maintain and operate its railroad through and across a particular street, also offered to prove compliance with the ordinance in every respect. The rejection of such evidence held to be erroneous.</p>

<p>1. The Constitution of Colorado (§ 11, Bill of Rights) provides that no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation,” shall be passed by the general assembly.</p> <p>2. The statute (1872, p. 117) upon which this action was based, is not to be regarded in any proper sense as a penal statute. Under this act, when an injury was done by the default of a railroad company, resulting in the death of the party inj ured, the personal representative was entitled to recover damages, not as a penalty, but as a compensation for the loss sustained, and neither an affirmative enactment nor a repealing statute can be so construed under our Constitution as to retroaet and impair or take away any accrued right which by the authority of law, and in the manner pointed out by the statute, had been previously asserted.</p> <p>3. The prohibition of retrospective legislation in the Constitution operates as a saving clause incorporated into the repealing section.</p>

The judgment rendered by the district court was, at the December term, 1877, of this court, reversed with an order of dismissal, upon the ground that a new promise was not good by way of replication to a plea of the statute of limitations in an action of debt upon a specialty. As the opinion of this court, upon the rehearing, reverses its former finding and affirms the judgment of the district court, a statement of the facts in this place may prove convenient.

<p> Error to District Court of Elbert County. </p> <p>The facts are stated in tlie opinion.</p>

<p> Error to District Court of Gilpin County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p>1. An involuntary nonsuit was unknown to the common law. Under our practice the right of the court to nonsuit a plaintiff where the evidence produced is not sufficient to support a verdict, is expressly declared by statute. (Laws 1872, p. 99.)</p> <p>2. A judgment of nonsuit under the statute is final within the meaning of the statute concerning appeals.</p>

<p> Appeal from District Court of Gilpin County. </p>

<p>1. In an action of debt on a replevin bond where the merits have not been tried in the replevin suit under the statute (R. S. 1868, p. 540, § 14), the defendant may plead such fact, and his title to the property in dispute, but the plea must show upon its face that the right of property had not been determined in the replevin suit.</p> <p>3. Where the parties to a replevin suit submit to an arbitration and that the award shall be final, and the arbitrators, after examination of the matters in controversy, find for the defendant, and that the property is in him, in an action afterward on the replevin bond, the principal therein will be estopped to say the action was not determined on the merits ; and the sureties, although not parties to that action, are concluded by the judgment therein by force of their undertaking. And in such action on the bond, evidence of the relation of mortgagor and mortgagee having existed between the parties is not admissible in mitigation of damages.</p> <p>3. Where one would question the authority of an agent to execute a bond he should do so by verified plea under the statute (R. S. 1868, p. 506, § 14), and in the absence of such plea it is not necessary to prove the agent’s authority.</p> <p>4. It is within the general powers of an attorney-at-law to submit the suit of his client to arbitration.</p>

<p> Error to District Court of Hinsdale County. </p>

<p> Error to County Court of Boulder County. </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from District Court of Arapahoe County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p>1. The payment by the county of costs in preliminary examinations, is by the statute (Laws 1876, p. 58,) left to the discretion of the board of county commissioners, and their action in disallowing certain fees thereunder is not subject to review on appeal.</p> <p>2. An indictment is not, strictly speaking, so called, until it has been found a “ true bill,” and the provision made in the statute (Laws 1874, p. 158,) for fees to the district attorney for drawing each “ indictment ” cannot be held to include compensation for drawing bills ignored by the grand jury.</p> <p>8. Where there 'were several indictments against two jointly, and separate trials had and a conviction on each, held, under the statute (Laws 1874, p. 158), that the district attorney was entitled to his fee on conviction in each indictment, and, also, where two were jointly indicted, tried and convicted, that he was entitled to his fee for the conviction of each.</p>

<p>An application for the continuance of a cause being addressed to the discretion of the court, nothing short of a plain and arbitrary abuse of right will justify an appellate court in reversing such discretionary judgment.</p>

Florer and his copartner brought an action against Downing, the plaintiff in error, before a justice of the peace; judgment went against the defendant in that court by default, and he appealed to the county court. The county court, notwithstanding the objection of the defendant to its jurisdiction, proceeded with the cause and rendered judgment in favor of the appellees in that court. To reverse this judgment the plaintiff in error sued out this writ of error.

The power of attorney mentioned in the opinion of the court,'which was given by Hofstadt to Anthony Bohlscheid, was as follows : “Know all men by these presents, that I, Arnold Hofstadt, of the county of Park, in the Territory of Colorado, have made, constituted and appointed, and by these presents do make, constitute and appoint Anthony Bohlscheid, of the county of Arapahoe, in the Territory of Colorado, my true and lawful attorney for me and in my name, place and stead, to…

Replevin. — Declaration in the eepit and detinet. Pleas non eepit, non detinet, property in defendant, and property in one J. H. Grout. Bliss, the defendant in error, being the assignee of J. H. Grout, brought this action in replevin to recover certain property seized by Duggan, the plaintiff in error, a constable, under three writs of execution issuing out of a justice court against Grout in favor of A. Bradley & Co., creditors of Grout.

Petition for writ of prohibition. The petitioners brought suit before a justice of the peace, in Arapahoe county, against Wolfe Londoner. A trial was had, and on the 10th of October, 1872, a judgment was rendered for the plaintiffs for $201.45. On the 31st day of that month, the defendant prayed and obtained an appeal to the probate court of said county.

Appeal from District Court of Pueblo County. Olsen, the appellee, had judgment on the verdict in the district court, in the sum of $100.

<p> Error to County Court of Arapahoe County. </p> <p>The case is stated in the opinion. ■ The defendant below had judgment for costs.</p>

The appellants, Clelland and Toupain, were sureties on the recognizance of John L. and Lewis Camblin, who had been recognized for their appearance to answer an indict- ' ment for grand larceny at the district court of Fremont county. The statute provided that the November term of that court should be begun on the second Monday in November. On the 16th of November, 1876, the recognizance was forfeited and scire facias issued returnable to the April term following.

The defendant in error brought her action against Gomer, the plaintiff in error, in the county court, in assumpsit. The defendant appeared and filed his plea to the jurisdiction of the court. On the day following he moved by his attorneys, Wilkes and Sweet, to dismiss the cause for want of jurisdiction; the motion was denied.

<p>An actual occupant and owner of the improvements at the date of the entry of the town site, upon a lot in the town of Rosita, under the statute (R. S., p. 633) is entitled thereto as against one who claims under convey-' anee from a third party, hut who had never heen in possession and who had never heen the owner of the improvements.</p>

<p>A tenant is estopped to deny his landlord’s title. If, after leasing the premises, the tenant acquires rights adverse to his landlord, he is bound to surrender the property before he can be permitted to assert them.</p>

<p>1. A mechanic’s lien under the statute (Laws 1872, p. 147) will not lie for hauling ores from a mine to a quartz mill. The statute contemplates a lien only for such labor or material as- may have, been performed or furnished in the development, improvement or conservation of the mine, which has become incorporated with and constitutes a part of its value.</p> <p>2. Notwithstanding the mechanic’s lien was unknown to the common law, yet in view of the equitable character of the statute, it should be liberally construed, but cannot by construction be extended to cases not provided by the statute.</p> <p>3. The proceeding to enforce a mechanic’s lien is purely statutory, and the court has no authority to enter up a decree for a part of the claim, independent of the petitioner’s right to a lien.</p>

<p> Appeal from County Court of Hinsdale County. </p> <p>The case is stated in the opinion.</p>

<p>Under tlie statue (Gen. Laws, 1877, § 1599), an appeal will not lie in any case, civil or criminal, from a judgment of a justice of tlie peace to the district court. A dismissal of such appeal must he without costs.</p>

The bill in this case alleges that Burdsall, the appellant, obtained a judgment in the county court of Arapahoe county against Henry O. Waggoner, Sr., on the 15th of November, 1871; that he procured an execution to be issued and that the writ was levied on lot twenty-five, in block forty-one, in the city of Denver, as the property of Waggoner, Sr.; that on the 24th day of January, 1872, the sheriff sold the property under the writ of execution, and that it was bid in by…

<p>As a general rule the father is entitled to the earnings of a son during minority, but where a minor son contracts on his own account for his services, with the knowledge of his father, who makes no objection, there is an implied assent that the son shall be entitled to his earnings.</p>

<p> Appeal from District Court of Arapahoe County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p>On appeal under section 348 of the Code, a copy of the notice of appeal must be furnished to the court, otherwise the appeal will be dismissed.</p>

<p>Where, in an action against a railway.company by one of its employees for a balance due him for services rendered as conductor of a passenger train, it was undertaken by the company to prove an offset in moneys alleged to have been collected but not accounted for by the conductor, by comparison of daily returns extending over a period of eleven months, by the plaintiff in the action and a fellow-conductor running alternate days over the same route, held, that such method of proof was erroneous, and the evidence properly excluded from the jury; also, that where the verdict must, under the law, have been the same, notwithstanding the admission of the evidence excluded, the verdict would not be disturbed.</p>

<p>Under the former system of practice a judgment or decree rendered in vaca- . won is void; where the law does not confer jurisdiction, astipulation that judgment might he entered in vacation would he unavailing.</p>

Teespass de bonis asportatis. Plea not guilty and two special pleas, the first being : A plea of confession and avoidance, setting up a levy of an attachment writ upon the property in question, at the suit of Yeager against John H. Eigden, and that the property was the property of John H. Eigden, and in his possession at the time when, etc. Second, actio non, “because they say that after the said defendant the said Marcus Coon had executed the aforesaid writ of attachment on…

' Barnes and others, the appellees, filed their petition in the district court of El Paso county for a mechanics’ lien, alleging that the petitioners contracted with Sybrant wbo, as the agent of Mclntire, the appellant, was erecting a building, to furnish labor and materials therefor.

<p>Appeal from District Court of Ouray County.</p> <p>The case is stated in the opinion.</p>

In the trial of this cause in the county court the record discloses the following evidence: Bruce, one of the plaintiffs, testified: “ Horton and I took contract for one hundred feet sinking at $20 a foot with water stipulation; defendant was to pay expenses for the water ; sank sixty-one feet and timbered; date of contract was October ; commenced sinking October 20,1875 ; worked until December 20,1875 ; sank twenty-five feet and stopped to work in engine room ; was told to…

Forcible entry and detainer. Sparks, the appellee, filed-Ms complaint before a justice of the peace of Gilpin county, substantially as follows: That “on the 27th day of August, 1875, at said county, Alexander C. Newton and Loring P. Miller were the owners of, and in the possession of, the following described lode, mine and mining claim to wit: the east eight hundred feet of the Grand Army lode, situate in Eureka mining district, in said county, being the east eight hundred…

<p> Error to County Court of Clear Creek County. </p> <p>The facts are stated in the opinion.</p>

The plaintiff, to maintain the issues upon his part, introduced himself as a witness, and testified as follows “I am the plaintiff in this suit. (Here the instrument sued upon is shown to the witness.) I have seen this instrument before; it was made by- William J. Barker, the defendant in this suit. I have made a demand on him for the money some time in April or May, 1868, soon after I went into business with Mr. Lake.

<p> Appeal from District Court of Gilpin County-. </p>

District Court of Arapahoe County. The appellee, the plaintiff below, had judgment, on the verdict of a jury, in the sum of $1,480.00. The facts are sufficiently stated in the opinion.

<p>1. When it is made to appear to this court that alleged evidence, through inadvertence, has been improperly incorporated into a bill of exceptions, opportunity will be given to apply to the court below to amend.</p> <p>2. Where a' party fails to except to the allowance of the amendment, he 'having had due notice of the application to amend, this court must presume that the court below allowed the amendment upon proper evidence.</p>

<p> Appeal from District Court of Las Animas County. </p> <p>The case is stated in the opinion.</p>

Appeal from County Court of Ouray County. This was an appeal from the order of the county court, refusing to set aside a judgment.

On the trial of this cause Ealph C. Webster,-being duly sworn, testified: “My name is Ealph C. Webster, I am the plaintiff in this suit, and am acquainted with the defendant Salomon. Either in September or October, 1867, the defendant called on me and asked me to take charge of a claim which he had against the United States for corn delivered at Camp Pilmore, on the Arkansas river, a little below Pueblo. The conversation was at his store in Denver.

<p>1. Sec. 213, Gen. Laws, requiring foreign corporations, before they shall be permitted to do business in this State, to file a certificate with the secretary of State, etc., is intended to enforce section 10, article 15- of the State Constitution, and is not in conflict with the Constitution of the United States.</p> <p>2. A corporation is the creature of local laws. For the recognition of its existence and the enforcement of its contracts without the limits of the sovereignty which created it, it is dependent upon the comity of the several States.</p> <p>3. The statute is prohibitory in its terms, but the failure of a foreign corporation to comply with its terms, however it may affect its right to hold and enjoy property in this State, does not affect its capacity to sue.</p> <p>4. A plea in abatement going only to the power of a foreign corporation to maintain its action for trespass, held bad on demurrer.</p> <p>5. When a demurrer is sustained to a plea in abatement and the defendant fails to plead over, he will not be permitted, in an action of trespass m 'et armis, to prove in mitigation an entry under color of title, nor is he entitled in such case to interpose any substantive defense.</p>

Assumpsit. The declaration consisted of a special count, and the common counts for money had and received, money loaned and money found due on an account stated. The defendant demurred to the special count; the demurrer was sustained. To the common counts the defendant interposed the pleas of the general issue, payment and set-off.

Ejectment — Declaration ordinary form claiming as heir at law; plea, general issue On the first day of March, A. D. 1867, James W. Clayton procured summons to be issued out of the ofiice of the clerk of the district court of Gilpin county, against Sarah A. Clayton, his wife, on a bill for divorce. The respondent was a non-resident, and on the same day the summons was issued it was returned non inventus by the sheriff.

<p>.The best that' can be said of an order that fixes the amount of an undertaking, but not the time in which it is to be filed is, that by intendment, it is an order to file the undertaking instanter.</p>

THrs was a suit in equity brought by Richard E. Whit-sett, the appellant, against Elizabeth M. Kershow and John N. and John S. Filmore, the appellees, heirs at law of John S. Filmore, deceased, praying a conveyance by them to him of certain real estate in the city of Denver.

<p> Error to District Qourt of Arapahoe Oounty. </p> <p>The case is stated in the opinion.</p>

<p>1. Causes commenced, before, and prosecuted to judgment since tbe Code went into effect, may be appealed to tbis court under tbe former system of practice (when an appeal would lie) or under tbe Code at tbe election of tbe appellant.</p> <p>2. Under tbe old system where tbe appeal was not made thirty days before tbe next ensuing term of tbis court, tbe appellant was not required to file a certified transcript of tbe record in tbis court on or before tbe third day of tbe term.</p> <p>S. After an appeal was perfected under the old system and the cause was pending in this court, held, that the court below was without jurisdiction to enter new orders with a view to an appeal under the Code.</p>

<p>1. When the time is fixed within which one seeking an appeal shall file his statement of appeal, he must, to avail himself of the provisions of section 340 of the Code, prepare and file the statement and give notice to the opposite party or his attorneys before the expiration of the time fixed.</p> <p>2. When the notice was not served until the day subsequent to the filing of the statement, the statement having been filed on the last day of the time limited, held, that the notice came too late, and that the statement must be disregarded.</p> <p>3. To be considered in this court, the statement on appeal must be agreed upon by the parties, or settled by the judge, and so certified. It cannot rest solely upon ex parte affidavits as a mode of authentication when the trial was had since the adoption of the Code.</p>

Petition for habeas corpus. The record in this case . which was by agreement of counsel admitted as the return to the writ of habeas corpus shows substantially that James Warrant, administrator of the estate of Robert T. Warrant, deceased, filed his affidavit in the county court of Pueblo county, under section 2871 of the General Laws, to the effect that Sarah J. Brown, the petitioner, had in her -possession about $304 in money and certain other personal property belonging…

<p>1. Since tlie statute of 1877 (Gen. Laws, § 595) a county judge assuming to act as ex officio justice of tlie peace is without authority of law.</p> <p>2. An appeal taken to the county court from a county judge sitting as a justice of the peace is nugatory. In such case, however, by following the appeal and consenting to trial, the county court having jurisdiction of the subject-matter, the appellee may waive his right to object to the jurisdiction over the person. If he would have this court review the ruling of the court below denying his motion to dismiss the appeal, he must reserve an exception to such ruling.</p>

<p> Error to Probate Court of Clear CreeJc County. </p> <p>The case is stated in the opinion.</p>

Ehsicht B. Smith, the appellee, commenced an action of ejectment in the district court of Jefferson county against Pipe, the appellant, at the May term, 1873. The plaintiff claimed title in fee to lots numbered one to six, inclusive, in block numbered nine in Bush and Fisher’s addition to the town of Grolden. The defendant appeared and pleaded the general issue.

<p> Appeal from District Court of Boulder County. </p> <p>The case is stated in the opinion.</p>

<p> Error to County Court of Pueblo County. </p>

<p>1. The filing of a notice of appeal and service on the same day must be presumed to have been cotemporaneous. The notice of appeal need not state the grounds of appeal.</p> <p>2. Under the Code, on a trial to the court, a judgment reserved is deemed excepted to for the purpose of appeal.</p>

This action was originally commenced in the county court of Arapahoe county by Swenson, for the use of Walker, against the Girard Fire and Marine Insurance Co., the appellant. In that court the plaintiff obtained a verdict in the sum of $853.28, and judgment was thereafter entered in that amount and costs, in favor of the plaintiff.

. Assumpsit. Declaration on two notes to which the common counts were added. Pleas, general issue and non est factum verified. The notes described in the declaration were as follows: “$3,000.00. Central City, Col., Feb. 27, 1875.

<p> Appeal from District Court of Arapahoe County. </p> <p>The facts are sufficiently stated in the opinion. .</p>

This was a suit to enforce a lien, under the statute by the plaintiff in error, for materials furnished Neaman (impleaded with Mullen and Sartori), and used by Neaman in the construction of a building owned by him. Upon demurrer, the petition was dismissed as to Mullen and Sartori. Default was taken against Neaman.

1st November, 1874, William N. Byers gave his promissory note for $2,860 for money borrowed, payable in ten years, to the Denver Co-operative Loan, Building and Homestead Association or order, with interest at ten per cent per annum. The interest was payable, one-tw.elfth part monthly ; the principal was payable 1-120 part monthly, without grace. In January, 1875, Mr. Byers gave another note for $2,920 for money borrowed, payable in the same manner.

<p>It is now well settled that a plaintiff may recover in an action against a railroad company for injury sustained, notwithstanding his own negligence exposed him to the injury, if the defendant, after becoming aware of the plaintiff’s danger, failed to use ordinary care to avoid doing the injury.</p>

Morgan, the appellant, brought an action of replevin against Hedges, for the recovery of a quantity of farm produce and certain farming tools. The declaration was in the cepit and detinet; pleas: not guilty and property in the defendant'. The jury returned a verdict in favor of the defendant; a motion for a new trial was interposed and overruled, and judgment rendered on the verdict.

<p>Petition for habeas corpus. The case is stated in the • opinion.</p>

Debt upon an injunction bond, wherein the Marshall Silver Mining Company and. others, the appellees, were plaintiffs, and Eli P. Streeter, Walter 1ST. Webster, impleaded, •with Philip Paul, were defendants.

<p> Appeal from District Court of Gilpin County. </p>

<p> Appeal from Qounty Court of Arapahoe County. ' </p> <p>The case is stated in the opinion.</p>

Kramer, the appellee, filed his complaint in the district court of Pueblo county, alleging: First. Held: and herded all of said horses and one hundred and twenty of said cattle in Pueblo county aforesaid, and on the 1st day of May of 1876, kept, herded and held all of said horses and two hundred of said cattle in Pueblo county aforesaid, and on the 1st day of May of 1877 kept, held and herded all of said horses and three hundred of said…

<p> Error to District Court of Qilpin County. </p> <p>The case is stated in the opinion.</p>

<p>To the extent that a lode in its onward course or strike departs from the side lines of the patented location, the plaintiff in ejectment is not entitled to recover.</p>

Myles, the appellee, filed his complaint in the district court of Boulder county on the 31st day of January, 1878 averring substantially : That on April 3, A. D. 1877, and for two years previous, the Victoria Mining Company was the owner of the Victoria mine, Gold Hill mining district, Boulder county, aforesaid.

Lawrence and Hilburn, the appellants, commenced an action against Robinson and others, the appellees, in the district court of Custer county. The complaint was as follows : That on or about the 1st day of July, 1878, the said plaintiffs, and the said William J. Robinson and Matthew J. Junkin, were citizens of the United States, residing in said county of Custer, State of Colorado.

<p> Appeal from County Court of El Paso County. </p> <p>The facts are stated in the opinion.</p>

.This was an action by Ellsworth, the appellee, as receiver of a national bank, to enjoin'Woodward, the treasurer of Clear Creek county, from disposing of or interfering with certain personal property, belonging to the bank as it was alleged, to satisfy a tax levied subsequent to the insolvency of the bank. The complaint was demurred to, and the demurrer, as well also a motion to dissolve a temporary injunction theretofore issued, were overruled. The defendant appealed.

<p>A tliird party for whose benefit a simple contract has been entered into for a valuable consideration moving from tlie promisee, may maintain an action tliereon in his own name, or plead it by way of set-off.</p>

Ejectment. ■ The declaration averred seizin in fee; plea of the general issue. It was stipulated between the parties at the trial ‘£ that the chain of title to the property in controversy from the United States to David M. Rose, is in all respects legal and perfect.” The plaintiff then gave in evidence a deed of conveyance from Rose to James Knox, one'of the plaintiffs, duly acknowledged and recorded. .