Volume 4 — Colorado Court of Appeals Reports

<p>1. Evidence.</p> <p>An instrument in form a due bill signed by a party as superintendent of a corporation payable to himself does not bind his company, or dispense with proof of the facts out of which the alleged indebtedness arose.</p> <p>2. Practice.</p> <p>The findings of fact by the court below with reference to admissions made in open court, are conclusive upon review.</p> <p>3. Same.</p> <p>Allegations in a complaint touching the execution and delivery of an instrument which is unavailable for any purpose are mere surplus-age, and do not require a verified answer.</p>

<p>Statute oe Fbauds.</p> <p>The statute admits of no excuse for leaving chattels, capable of manual • delivery and removal, in the apparent possession of the vendor. It requires the removal of the property sold from the custody and control of the vendor whenever removal be possible, notwithstanding any expense or hardship the removal may entail. The question of ■good faith does not enter into the transaction.</p>

This action was brought by Lyon against Heisler, the appellant, as administrator of the estate of W. H. Avery. The plaintiff declared on the following promissory note : FIRST NATIONAL BANK, FORT COLLINS, COLO. $1,800. Fort Collins, Colo., Jan. 15,1890. Five years after date, I promise to pay to the order of William H. Avery, Eighteen Hundred ($1,800) Dollars, at the First National Bank of Fort Collins, Colo., with interest at no per cent, per annum, from date until due.

This was an action brought by the appellee to recover damages for failure to perform a contract, and for alleged false representations alleged to have been made by appellant in procuring the contract to be made.

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

<p> JError to the District Court of Arapahoe County. </p>

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

<p> Appeal from the County Court of Arapahoe County. </p>

<p>1. Pleading — Nonpebeobmance and Waiveb.</p> <p>Waiver of performance must be pleaded in an action on a contract, otherwise proof of waiver of nonperformance will not be admissible.</p> <p>2. Pbactice — Yabiance.</p> <p>An objection on the ground of a variance of the proofs from the allegations must be taken at the trial, or it cannot be considered on appeal.</p> <p>3. Estoppel.</p> <p>A party who knew while the work was progressing that it was not being done according to agreement, but suffered it to proceed until completion without objection, will not be heard to say that the terms of the contract were not observed.</p> <p>4. Allegations and Pbooe.</p> <p>An allegation of acts done, or knowledge obtained by a party is satisfied by proof of suck acts or suck knowledge by bis agent.</p>

<p>Practice.</p> <p>An irregularity 'which did not prejudice the appellant does not require a reversal of the judgment.</p>

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

The action was brought by appellee to recover damages for personal injuries sustained by the alleged negligence of appellant in its management of its cars in his transportation from one part of the city to another.

<p> Error to the District Court of Das Animas County. </p>

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

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

<p>1. Real Actions — Dama&es—Parties.</p> <p>If tlie premises to recover wliioh. tlie action is brought are continually occupied, the actual occupant must be made defendant, together with any other person claiming title to or interest in the same adversely to the plaintiff.</p> <p>2. Mesne Profits.</p> <p>Under the code, damages claimed for ouster or detention, or both, are required to be adjudicated in the action for possession of the premises.</p> <p>3. Same.</p> <p>The party having actual possession at the time of bringing the suit may not be liable for profits. The action may be prosecuted against him to gain the possession, and against the party assuming ownership for the rents and profits, notwithstanding a disclaimer by the occupant.</p> <p>4. Same.</p> <p>One erecting inprovements upon the unoccupied land of another without his consent, and collecting ground rent, is liable to the landowner for rents and profits.</p>

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

<p>1. Waiver.</p> <p>Tlie irregularity, if any, in reinstating a case which had been dismissed because of a failure to file the complaint within the ten days allowed by law, is waived by appearing generally, filing an answer and going to trial.</p> <p>2. Practice — New Trial:</p> <p>The affidavit of counsel, based upon information and belief, of what a witness will testify is insufficient to secure a new trial on the ground of newly discovered evidence.</p> <p>3. New Trials.</p> <p>New trials are not granted t'o admit newly discovered evidence which is merely cumulative.</p> <p>4. Brokers’ Commissions.</p> <p>To entitle a broker to commissions, he must have produced a purchaser who was ready, willing and able to purchase upon the terms and at the price designated by the principal, and have been the efficient agent or procuring cause of the sale.</p>

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

<p>1. Cabbiers or Passengers — Cabe and Diligence.</p> <p>,A carrier of passengers must exercise tlie same degree of care to protect them from violence from their fellow passengers or from intruders that is required for the prevention of casualties.</p> <p>2. Same.</p> <p>A railroad company is held to the utmost care, vigilance and precaution ' to guard against accident, consistent with the mode of conveyance and with its practical operation; and no distinction is made between casualties resulting from tlie negligent equipment or operation of its trains and those arising from the misconduct of passengers upon them.</p> <p>:■}. Same.</p> <p>The utmost diligence and care is required of the carrier of passengers, and the slightest negligence against which human prudence and foresight may guard, will render the carrier responsible for consequent injury, but it is not accountable for something which is not known, or in the nature of things cannot be foreseen.</p> <p>4. Same.</p> <p>It is immaterial how many men a railroad company furnished to attend to passengers and look after its train, if the men so furnished neglect their duties. It is responsible for the wrongful or negligent acts and omissions of its servants and agents without regard to their number.</p>

<p>1. Peactice — Notice op Motion.</p> <p>Written notice of motions is required in all cases except those made during the progress of a trial.</p> <p>2. Same.</p> <p>Notice of a motion for extension of time within which to tender a bill of exceptions is jurisdictional, and an ex parte order extending time in such a case is void.</p> <p>3. Same — Bill op Exceptions.</p> <p>A .bill of exceptions which was not tendered until after the expiration of the time originally allowed for that purpose is no part of the record, notwithstanding it was tendered within the time allowed by a subsequent order obtained without notice.</p> <p>4. Appellate Peactice.</p> <p>A jurisdictional question may he raised for the first time in the appellate court.</p>

<p>1. Practice.</p> <p>It is error in an action against two partners to render judgment against the plaintiffs and in favor of both defendants where the default of one of the defendants has been entered and has nob been vacated.</p> <p>2. Principal and Agent.</p> <p>A principal is not bound by the acts of his agent unless they are done within the scope of his authority.</p> <p>3. Notice.</p> <p>In order that a principal may be affected by his agent’s knowledge, the knowledge must be acquired while he is agent, and must pertain to the business in which he is authorized to act.</p> <p>4. Agency- — Bankers,</p> <p>A bank which is the agent of a party for the collection of a draft has no power, without special authority, to compound the indebtedness, release the debtor, receive anything except money in payment, or-to do anything whatever which would operate to change the rights of the parties.</p> <p>5. Partnership — Dissolution.</p> <p>A contract of dissolution between partners is binding inter se, but rights of third parties which had vested before the dissolution, cannot be affected by it without their consent.</p>

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

This suit was brought against an officer to recover treble damages for the seizure, under a writ of attachment, of property which the alleged debtor claimed was exempt from execution.

JError to the District Court of Las Animas County. The People prosecuted Adolph Morris, the plaintiff in error, by information containing several counts, which charged him with a violation of the following section of the .Criminal Statutes: — “ If any person, by false representations in writing of his own responsibility, wealth or mercantile correspondence and connection, shall obtain a credit thereby, defraud any person or persons of money, goods, chattels or any valuable…

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

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

<p>1. Attachment — Forthcomin& Bond — Lien.</p> <p>The lien of an attachment is not destroyed by a surrender of the property to the defendant upon the execution of a forthcoming bond.</p> <p>2. Priority oe Attachment Liens.</p> <p>If after the surrender of property to the defendant upon a forthcoming bond, the officer seizes it under other writs and sells it, he is charged with the duty of applying the proceeds to the satisfaction of the senior lien.</p> <p>3. Sureties’ Liability.</p> <p>The recovery against sureties upon a forthcoming bond is always limited to the value of enough goods to satisfy the judgment, and no more; and if goods sufficient for that purpose have been reseized by the officer, the sureties’ liability is thereby discharged.</p>

<p>Chattel Mobtgages.</p> <p>A mortgage of merchandise which permits the mortgagor to remain in possession of the goods and sell the same in the usual course of business, paying the proceeds to the mortgagee until the debt is ' extinguished, is valid in so far as the instrument is concerned, but its requirements must be carried out in good faith and to the letter. If by any agreement, oral or otherwise, the mortgagor is permitted to retain any part of the proceeds, the instrument is void, except as between the parties.</p>

<p>Pbacticb.</p> <p>Where the questions presented for review are only those of fact, and there is evidence to support the finding, the judgment will not be disturbed.</p>

<p>1. Equity — Evidence.</p> <p>Where a deed absolute on its face is in fact a mortgage, it is competent in equity to show the real character of the instrument by parol evidence. Such evidence does not have the effect to contradict or vary the writing, hut is admitted merely to show the purpose for which the deed was given. .</p> <p>2. Limitations.</p> <p>The statute of limitations in cases of the existence of a trust created by contract of the parties, and not cognizable by the courts of common law, does not begin to run until the trustee shall have repudiated or denied the trust.</p> <p>S. Mobtgages.</p> <p>When a debt secured by mortgage has been fully paid, the mortgage becomes null and void, and, until released of record, it remains a mere cloud upon the title of the mortgagor, to be removed, if necessary, by a proper proceeding for that purpose.</p> <p>4. Limitations.</p> <p>There is no statute which limits the time in which a party in possession shall proceed to remove a cloud from his title; and no lapse of time will bar a mortgagor who has paid and extinguished a mortgage from proceeding to cause the fact of its extinguishment to appear of record.</p>

<p>1. Mechanic’s Lien — Pabties.</p> <p>The principal contractor is a necessary and indispensable party to an action for the foreclosure of mechanics’ liens.</p> <p>2. Same.</p> <p>No privity of contract exists between the owner and subcontractor. In order to determine the amount with which subcontractors can charge the property there must be an adjudication or settlement of the amount due them, as well as an adjudication or accounting between the owner and principal contractor.</p> <p>3. Same — Waives.</p> <p>A judgment against the contractor is an indispensable prerequisite to the enforcement of a lien upon the property, and cannot be waived.</p>

<p> Error to the District Coxirt of Arapahoe County. </p>

<p>1. Timber Cut oh Public Lands.</p> <p>A railroad company, under authority of an act of Congress, appointed an agent to enter upon the public domain and take therefrom railroad ties necessary for the purposes of the road, and agreed to pay the agent for liis services a certain price for each accepted tie; held, that the agent had no assignable interest in the ties so taken.’</p> <p>2. Chattel Mortgage — Parol Evidence.</p> <p>Where a note intended to be secured by a chattel mortgage is not clearly described or identified in the instrument, the uncertainty may be removed by parol evidence; but where it is clearly and explicitly described therein, extrinsic proof that the mortgage was given to secure another note, and not the one described, is inadmissible.</p>

<p>1. Constitutional Law — Mechanic’s Lien Acts.</p> <p>Whatever may have been, thought of the wisdom of this sort of class legislation, the validity and constitutionality of mechanic’s lien acts is too well settled to admit of discussion.</p> <p>2. Mechanic’s Lien upon Improvements.</p> <p>The lien of a mechanic for work done in the construction of an entire building on unimproved property is, as to the structure, superior to that of a deed of trust executed prior to the performance of the work.</p>

In the month of May, 1891, the appellee, Wright, was doing business in Lyons, Colorado, and at that time was indebted to the Hallack Lumber and Manufacturing Company for some goods and material which that company had sold him. About that date, an attachment which had been issued in the suit of the company against Wright was levied upon the property in dispute in this action. This consisted of a pair of horses, a set of harness and a bedstead.

<p> Appeal from the County Court of Arapahoe County. </p>

Ballot & Rahsohoee are merchants in Denver, who have been engaged in the dry goods trade in the city for a good many years. John Q. Charles, appellee, has been keeping house in the city during this time, and with his wife maintained an establishment in the city until she died in the summer of 1890. During the most of these years, Miss Maud Charles was a member of their family, and apparently bore to them the relation of an adopted daughter.

This controversy grows out of an attempt by a creditor of the Trinidad Rolling Mills and Iron Company to collect his debt by proceeding against a subscriber to the stock of the company to compel him to pay his subscription. Early in 1888, divers people devised the scheme of raising a company to build and operate a rolling mill near the city of Trinidad, in Colorado.

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

<p>1. Appellate Pbactice.</p> <p>Where plats were before the jury and tbe witnesses by pointing to tlie plats designated the several lines, points and locations concerning which they testified, as “here,” “there,” “this line,” etc., but the plats are not carried into the record, this court cannot say that the evidence did not warrant the verdict.</p> <p>2. iNSTEtTCTIOjSfS — Peesujiptioits.</p> <p>The nature of the evidence must determine the character of the instructions to be given, and when, on account of the condition of the record, it is impossible to understand the evidence, it will be presumed that the court below properly refused the instructions requested.</p> <p>3. Appellate Pbactice.</p> <p>The giving of an erroneous instruction cannot be assigned as error, unless it was prejudicial to the party complaining.</p>

<p> Appeal from, the County Court of Otero County. </p>

<p> Appeal from, the County Court of Arapahoe County. </p>

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

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

Kaiser (appellee) brought suit against James P. Welch, J. H. Thompson, the appellant (a corporation), J. N. Casady and J. J. Brown, on claim of his own and of fifteen others assigned to him, for work and labor on the “ Lucky Lode,” claiming a lien on such mining property and also judgments against the parties respectively.

<p>1. Practice — Discretion.</p> <p>Courts rarely permit parties when giving evidence in rebuttal to introduce that which ought to have been put in when they were making out their own side of the case, but a departure from this practice is not reversible error unless it can be seen that it was a great abuse of discretion and that the other party was prejudiced thereby.</p> <p>2. Appellate Practice.</p> <p>When the judgment is fully supported by testimony, this court is free to accept the determination of the trial judge upon the facts, and is never inclined to disturb it.</p>

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

Suit was brought by the plaintiff in error against the defendant company to compel the performance of a contract for a lease of the mining property of the defendant to the plaintiff. Upon the hearing in the district court a decree was entered dismissing the bill; appeal was prosecuted to the supreme court, where the decree of the district court was reversed and a decree of specific performance ordered. See Cochrane v. Justice Mining Co., 16 Colo. 415.

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

<p>1. Practice.</p> <p>When the only question in the case is whether the undisputed facts relied upon by the defendant constitutes a defense, judgment should be rendered either for the plaintiff in the amount claimed, or in favor of the'defendant. Nothing can justify a judgment for the recovery of part of the demand.</p> <p>2. Landlord and Tenant — Eviction—Rent.</p> <p>An eviction of a tenant from the demised premises by paramount title, or by the landlord, is a, bar to a demand for rent. To constitute an eviction which will bar or suspend rent, a direct or jffiysical expulsion is not necessary. Any act, willfully done by the landlord, which has the effect of driving the tenant from the premises, amounts to and may be treated as an eviction.</p> <p>3. Same.</p> <p>Knowingly leasing premises for immoral purposes is unlawful; and where the tenant has been driven from his tenement by persecution by persons unlawfully placed in juxtaposition to him by his landlord, no rent can be claimed for the time he is out of possession.</p>

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

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

<p>1. Appellate Practice.</p> <p>A verdict will not be disturbed unless some substantial error has been committed by the trial court in its ruling upon the admissibility of testimony, or in instructing the jury as to the law applicable to the issues.</p> <p>2. Same — Bill of Exceptions.</p> <p>When it is desired to attack a judgment because it has been rendered upon improper or insufficient testimony, or because the jury was not sufficiently and accurately instructed, it is indispensable that the evidence be preserved by a bill of exceptions.</p> <p>3. Bill of Exceptions, Authentication of.</p> <p>A bill of exceptions is authenticated by the signature and private seal of the judge. When not authenticated it will not be regarded as a part of the record.</p>

<p>Statutory Construction.</p> <p>A statute cannot be given a retroactive effect or be made operative to affect vested rights or interests.</p>

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

Appellee, by a traveling agent, sold to appellants plumbers supplies, consisting of six water-closets, tanks, etc. The goods were cheaper in price than standard goods of the kind. There was no warranty — the nearest approach to it was the representation of the traveling agent.

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

Defendants in error (plaintiffs below) brought suit against plaintiff in error alleging an indebtedness of $1,893.75 “for the balance of a mutual and open account current for (naming the goods) goods sold and delivered by the plaintiffs to the defendant at his request, work done and performed by plaintiffs for the defendant at his request, and for moneys had and received by the defendant for the use of the plaintiffs between Nov. 1, 1882, and Nov. 4,1891.” Defendant…

<p>1. Res Judicata.</p> <p>A judgment rendered upon any pleadings setting fortli tlie facts is conclusive concerning them. It is essential to the application of this rule, that it he evident from the record that the merits of the case were heard and disposed of on the first trial.</p> <p>2. Same.</p> <p>If the plaintiff fails on demurrer in his first action from the omission of an essential allegation, which is supplied in the second, the judgment in the first suit is not a bar to a subsequent action.</p> <p>3. Same — Dismissal.</p> <p>If, after demurrer sustained to the complaint with leave to amend, the action is dismissed on the motion of the plaintiff before the expiration of the time allowed for amendment, the judgment is one of dismissal, and not so far final on the merits as to be pleadable in bar to a subsequent suit.</p>

<p>1. FEEs AND SALAIuE5-STATUTOBY OonsmucTroN.</p> <p>It is provided by statute that oounty clerhs shall receive as tbeir only compensation for their services a salary, payable out of the fees and emoluments of their respective offices, actually collected, and not otberwise.</p> <p>2. SAME.</p> <p>The salary act requires that all fees collected by the sev~ral officers named be paid over to the county treasurer to be hept by him in separate funds, appropriately designated-the fees paid over by the county clerIc to be hnoivn as the "County Clerk's Fee Fund." Each officer is to be paid out of his own fund and no other, and any balance left to the credit of the fund, after the salary for the year is paid, goes into the general county fund.</p> <p>3, CouNrr CLERICS-FEES AND EMox,unEicrs.</p> <p>The county clerk holds but one office. He discharges the duties of cleric of the board of commissioners and recorder of deeds or officio, and the fees and emoluments arising from their performance are the fees and emoluments of his one office.</p> <p>4. S~xa.</p> <p>The sum allowed by law per diem to the county cleric for his services as clerk of the board of commissioners is a fee within the meaning of the salary act. It is payable to him absolutely, and the board is without authority to annex to its payment any condition whatever.</p>

<p>1. Practice — Default.</p> <p>A judgment upon- a default -which was prematurely entered is erroneous.</p> <p>2. Statutory Action — Pleadings.</p> <p>The complaint in an action under the statute (Sess. Laws, 1887, p. 238) to determine and settle a disputed boundary line between counties, after one has been run out and established by the state engineer, must contain affirmative and positive allegations showing the proceedings to have been such as to confer jurisdiction.</p> <p>3. Same.</p> <p>In order to confer jurisdiction in such an action the complaint must affirmatively show that it was commenced within six months after the filing of the description of the boundary line by the state engineer.</p>

<p>Appellate Practice.</p> <p>A judgment wliicli is wrong upon any hypothesis must he reversed.</p>

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

<p>1. Appellate Pbactice.</p> <p>Wlien there was no defense and no exception to the judgment, an assignment of error that “ the judgment was contrary to the law and the evidence,” will not be considered.</p> <p>2. Practice — Action on Bond — Judgment.</p> <p>Before the adoption of the code, it was the practice in actions on penal bonds to enter judgment for the full amount of the penalty to be discharged upon payment of the damages; but now a judgment fo.r the amount of the damages is in proper form.</p>

<p> JError to the County Court of Phillips County. </p>

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

<p>1. Law of the Case.</p> <p>It having been held upon a former review, by the supreme court, that the facts stated in the complaint in this action were sufficient in law, the questions raised by demurrer are no longer in the case.</p> <p>2. Res Judicata.</p> <p>A judgment is conclusive only of the matter determined by it; and to enable a defendant to interpose it as a bar to another aetion it must be made to appear that the eause of aetion in both cases was the same, and that it was between the same parties, in the same right or capacity, or their privies.</p> <p>3. Same.</p> <p>A judgment in an action in tort for personal injuries does not constitute a bar to an action for loss sustained by reason of a failure in the performance of an implied contract.</p> <p>4. Employer and Employee — Fellow Servant.</p> <p>Fellow servants are those who serve the same master, work under the same general control, derive authority and compensation from the same source, and are engaged in the same general business, though it may be in different grades or departments.</p> <p>5. Presumption.</p> <p>It may be conceded that employees of a railroad company are presumed to know its rules, but the presumption does not extend to persons not in its employment.</p> <p>6. Contributory Negligence.</p> <p>Where practically instantaneous decision is demanded from a person dazed by danger, an error of judgment is not in law to be imputed to him as contributory negligence. It is for the jury to determine whether or not the conduct of one so situated amounts to contributory negligence.</p>

<p> Appeal from the County Court of Puello County. </p>

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

<p>Intervention — Judgment.</p> <p>The judgment against an intervenor in an action of replevin should not, when it appears that he had never had possession of the property in controversy, extend beyond dismissing his petition and charging him with the costs of the intervention.</p>

<p>Appellate Pbactice.</p> <p>In the absence of evidence to support the judgment it will be reversed.</p>

<p>1. Service of Summons bt Publication, Affidavit for.</p> <p>An affidavit for publication of summons made by the plaintiff’s attorney on information and belief is defective and insufficient. Without some showing of right, authority and capacity, an attorney cannot make an affidavit which will be sufficient to uphold an order for such substituted service.</p> <p>2. Constructive Service — Premature Judgment.</p> <p>When the service of summons was by publication, a judgment entered forty-one days after the last publication is premature.</p>

<p>1. Sale ttndeb Deeds oe Tbdst.</p> <p>When according to the terms of a trust deed the trustees were empowered to sell the property at the front door of the court house, a sale fairly made at a door of a building on the side named and in full view of every other door on that side, although not at the door leading to the court room, is not such a deviation as to invalidate an act otherwise regular.</p> <p>2. Same.</p> <p>A sale under a deed of trust will not be set aside on the ground of inadequacy of price merely, unless it be clearly demonstrated that tbe difference between the value of the property and the price for which it sold is such as to shock the judgment and conscience of the chancellor.</p>

<p>1. Pbactice — Excusable Neglect.</p> <p>It is provided by tlie code that the court may, on such terms as may be just, and upon payment of costs, relieve a party from a judgment, order or other proceeding taken against him through mistake, inadvertence, surprise or excusable neglect.</p> <p>2. Same.</p> <p>Neglect which arises from reliance placed by a party upon assurances given Mm by opposing counsel is excusable within tbe meaning of tbe law.</p>

<p> Appeal from the County Court of Arapahoe County. </p>

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

<p>Contract — Action—Res Judicata.</p> <p>If a contract is divisible, providing for separate liabilities of periodic recurrence, each obligation as it becomes due is the subject of an independent action, although arising out of the same agreement, but the action must include all due at the time suit is brought.</p>

. Hon. Geo. W. McCrary, formerly U. S. circuit judge of this judicial circuit, on the 13th day of May, 1890, commenced suit to recover the balance due upon a promissory note, of which the following is a copy : “ $2,000.

<p>1. Equity — Injunction to Kestbain Peocbedings at Law.</p> <p>To warrant the interference of a court of equity to restrain the enforcement of a judgment at law, a clearly established case of fraud, accident or mistake must be shown, sufficient to deprivo the person aggrieved of the defense at law.</p> <p>2. Competency oe Witnesses, Same in Equity as at Law.</p> <p>The statutory prohibition against a party to an action or directly interested therein testifying of his own motion or in his own behalf, when the adverse party sues or defends as the executor or administrator of a deceased person, is the same in equity as at law.</p> <p>3. Limitations.</p> <p>The statute of limitations is a personal defense of which a defendant may or may not avail himself at his pleasure.</p> <p>4. Same.</p> <p>As between a principal and his surety who has paid the debt, the statute of limitations runs from the time of payment.</p> <p>5. Witnesses — Statutoey Disability.</p> <p>The competency of a witness who is under statutory disability by reason of his being interested in the result of an action cannot be restored by a release of liability.</p>

This case was formerly before this court. All the questions and issues involved were settled except one. It was alleged in the answer that the note in controversy was a forgery, was not executed by Francina Hawkins. Issue was taken and the defense relied upon. A large amount of evidence was introduced in an attempt to establish the forgery. No finding as to the question of forgery was made by the jury.

<p>1. Appellate Practice — Immaterial Error. .</p> <p>The reception of immaterial or irrelevant testimony, when a cause is tried before a referee, is not, of itself, reversible error.</p> <p>2. Appellate Practice — Referee’s Findings of Fact,Conclusive.</p> <p>When the case was tried on the testimony of witnesses examined orally before a referee and was decided upon that evidence, the finding of the referee upon questions of fact is conclusive upon review, and this court is not required either to examine or consider the evidence.</p> <p>3. Discretion — Limiting Argument.</p> <p>The trial court has power, in its discretion, to limit argument of counsel, and its action in this connection is not the subject-matter of review, unless, possibly, in case of very evident and plain abuse of such discretion.</p>

This was an action in replevin brought by defendant in error claiming as assignee of Antonio and Joseph Sarcone, against plaintiff in error, sheriff, who levied upon the goods several writs of attachment after the assignment, and took and retained them.

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

<p>1. Malicious Pbosecution — Pboof—Malice.</p> <p>To maintain an action for malicious prosecution, it is incumbent upon the plaintiff to show that, in putting the criminal law in force against him, the defendant acted maliciously and without reasonable or probable cause. Any motive, other than a desire to bring an offender to justice, is malicious; and, if it is clear from the evidence that no reasonable or probable cause existed, malice may be inferred.</p> <p>2. Same — Advice of Counsel.</p> <p>The defendant in an action for malicious prosecution is, for the purpose of repelling any inference of malice which might arise from circumstances showing a want of probable cause, permitted to show that before he proceeded he made a full and fair presentation of the facts to an attorney, and acted upon the opinion expressed by him. But a full presentation is necessary, and it devolves upon him to show that he made it, by proving what facts were stated.</p> <p>3. Same — Pbobable Cause.</p> <p>The question of probable cause is one of law for the judge, either upon undisputed facts, or upon the facts as found by the jury. In case of conflicting evidence the court should classify it and instruct the jury what facts, if established, constitute probable cause, and what do not.</p> <p>4. Immatebial Ebboe.</p> <p>One who could not possibly have been harmed by an instruction has no ground of complaint, although it may have been erroneous.</p>

<p>Practice.</p> <p>Judgment upon the pleadings should not he entered where material issues have heen raised.</p>

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

<p>Pleading — Cause of Action.</p> <p>A complaint which states that while the plaintiff was driving along a street he started to cross the defendant’s track in front of a car which was standing motionless a little way off the crossing, neither motorman nor conductor being on the car, and that while he was in the act of crossing they suddenly started the car and recklessly ran into his wagon, whereby his property was damaged and he was injured, shows a cause of action.</p>

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

<p> Appeal from, the County Court of Arapahoe County. </p>

<p> JError to the County Court of Pueblo County. </p>

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

<p>1. Practice.</p> <p>One wlio is sued before a justice of the peace on a claim of which the justice has jurisdiction cannot interpose a counterclaim or set-off in excess of the justice’s jurisdiction, and thereby defeat the plaintiff’s right to sue in that'forum.</p> <p>2. Jurisdiction — Set-off.</p> <p>Demands to he set off in an action before a justice of the peace must be within the jurisdiction of the court.</p> <p>3. Practice on Appeal fboh Justice’s Court.</p> <p>When a case reaches the county court on appeal from a justice of the peace, although it is triable de novo, and although the defendant may interpose any permissible defense to defeat the plaintiff’s claim, whether put in by way of set-off or counterclaim, he is limited in these respects to such matters as might have been legally pleaded before the justice.</p> <p>4. Practice — Jurisdiction.</p> <p>The jurisdiction of the court cannot he divested by a motion which rests for its validity upon the ascertainment of a fact suggested by an affidavit. Such matters present an issue upon which the parties have a right to be heard and to produce evidence.</p>

<p>1. Mechanic’s Lien.</p> <p>Labor performed or materials furnished for other purposes than those specified in the Lien Act cannot be made the foundation of a lien.</p> <p>2. Same — Pleading.</p> <p>To entitle the plaintiff to judgment foreclosing a mechanic’s lien, all the material facts Avhich entitle him to such relief must be stated in the complaint.</p> <p>3. Same — Appellate Practice.</p> <p>While a judgment by default will not be reversed for technical reasons, • or merely because the statements in the complaint are defective, yet, when an allegation essential to a recovery is absolutely wanting, an appellate court will not permit tlie judgment to stand, and it is not necessary that there should have been a motion in the court below to vacate it.</p>

<p> Appeal f rom, the District Court of Arapahoe County. </p>

<p>Practice — Sealed Verdicts — Adjournment of Term.</p> <p>The court may direct the jury to bring in a sealed verdict at the opening of court in case of an agreement during recess or adjournment for the day, but a final adjournment for the term, by operation of law, discharges the jury and renders ife incompetent to return a verdict.</p>

<p> Mrror 'to the District Court of Arapahoe County. </p>

<p>1. Amendments — Practice.</p> <p>When amendments asked are in the interests of justice, courts should be liberal in allowing them, but where the effect of an amendment is to interpose a purely legal obstruction to the enforcement of a just demand, the party making the application should be allowed only what the letter of the law gives.</p> <p>2. Same.</p> <p>To authorize the allowance of any amendment, except one which is formal, there must be an affidavit showing good cause.</p> <p>3. Same.</p> <p>Without a showing of good cause by affidavit, the allowance of an amendment of a demurrer to a complaint by which the statute of limitations is interposed as a bar to the action, is erroneous.</p>

<p>1. Witnesses — Competency.</p> <p>A party to an action is incompetent to testify of liis own motion where the adverse party sues or defends as an heir, etc., of a decedent, unless he comes within some of the exceptions expressed in section 364, Gen. Stats. 1883.</p> <p>2. Same.</p> <p>A person claiming to be the widow of a decedent suing a trustee and an heir to obtain an interest in property held in trust for the use of the ancestor and his heirs, is not a competent witness.</p>

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

<p>1. Statutory Construction — Assignment.</p> <p>When one undertakes by deed of assignment to avail himself of the statute relating to assignments for the benefit of creditors, he must make express provision for the ratable participation by his creditors in its benefits, or the deed is void.</p> <p>2. Same.</p> <p>It was not the purpose of the legislature to prevent a debtor, while he retains dominion over his property, from securing or paying one of his creditors in preference' to another, except as he undertakes to do so under a deed of general assignment, executed pursuant to the statute.</p> <p>3. Same.</p> <p>A transaction intended by the, parties to give a particular creditor a preference cannot be converted into an assignment for the benefit of creditors generally. A compulsory assignment for the benefit of creditors is unknown to our law.</p>

<p>Trade-mabks.</p> <p>A trade-mark becomes the exclusive property of one only where he has, prior to any one else, appropriated and used it to indicate the ownership, origin and quality of an article to which it is attached.</p>

Application was made by the plaintiffs in error, two incorporated ditch companies, for a writ of mandamus against the defendants who were the state engineer and officers charged with the supervision and distribution of water for irrigating purposes.

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

<p> JSrror to the District Court of Arapahoe County. </p>

<p> JError to the District Court of Rio Grande County. </p>

<p>1. Pleading.</p> <p>When the action is brought to redress a wrong committed by a breach of contract and the plaintiff only seeks to recover for general damages which have resulted, he states a cause of action when he sets up the contract, avers the facts which constitute the breach, and alleges generally that he has been damaged in a sum specified.</p> <p>2. Aider by Yerdict.</p> <p>Although a complaint for breach of contract may have been vulnerable to a demurrer by reason of an omission to allege the resulting damages, the defect or omission maybe aided by the verdict, so that the objection will not be available on review. Wherever a matter must of necessity be proved to maintain the action, and must have been in evidence to warrant the jury to give the verdict, an omission to state it in the complaint will not be fatal to the judgment, providing the pleading contains matters which by fair intendment can be held to embrace it.</p> <p>S. Appellate Practice — Immaterial Error.</p> <p>Appellate courts are inhibited, by statute, from disturbing a judgment where no manifest wrong has been done to the unsuccessful party.</p> <p>4. School Law.</p> <p>The holding of a certificate or license to teach is, by statute, a condition precedent to a teacher’s right to recover wages.</p> <p>5. Same.</p> <p>' One who, at the time of employment to teach in a certain county, had a first grade certificate which was in full force in another county, and which after commencement of the school term was continued and made operative by the superintendent in the county of employment, is possessed of valid and statutory evidence of a right to teach, entitled to the stipulated salary, and, in case of wrongful discharge, to damages.</p>

<p>1. Common Carriers oe Passengebs.</p> <p>It is tlie duty of a company operating a railroad or system of lines within the limits of a city to carry its passengers safely, and it must respond for the unlawful and tortious acts of its servants. The public, while riding, is entitled to fair, safe and respectful treatment by the servants of the company and to immunity from injury at their hands.</p> <p>2. Same.</p> <p>It seems that a passenger has a right to defend his privileges when they are illegally and unjustly assailed.</p> <p>3. Immaterial Error.</p> <p>It is not ground for reversal that in some particulars the instructions might have been more aptly expressed or might, without detriment, have contained limitations, when, taken as a whole, they fairly and correctly informed the jury as to its duty in the premises.</p> <p>4. Evidence.</p> <p>It is competent in an action by a passenger for damages for assault and wrongful ejection from a street car to prove facts which were parts of the same transaction, occurring after he was ejected, to show what injury he sustained from the continuance of the assault, to throw light on the character of the transaction, the force used, and the spirit and method adopted by the conductor in his attempt to execute what he believed to be his duty.</p>

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

<p>1. Garnishment.</p> <p>It is necessary to obtain a valid judgment against tbe principal defendant in order to charge a garnishee.</p> <p>2. Constructive Service, Affidavit for.</p> <p>To obtain service by publication of summons there must be a strict observance of the statutory requirements. The affidavit for the order of publication must be by a party. An attorney of the party is not competent to make it.</p> <p>3. Garnishment — Jurisdiction.</p> <p>A garnishee is bound to assert all jurisdictional defenses in order to protect himself in case suit is brought against him by the original debtor.</p> <p>4. Jurisdiction — Constructive Service.</p> <p>To obtain a judgment against one upon whom personal service cannot be had, by reason of his being without the limits of the state, an attachment must he issued and levied on his property. A levy by means of service of garnishee process upon a debtor within the jurisdiction is equally effectual to notify a nonresident of the pend-ency of the action, as in those cases where tangible interests are levied upon. But when the domicile of the garnishee as well as that of the person sued is without the sovereignty, the debt is neither within the jurisdiction of the court nor amenable to its writs, and service of process upon the agent of the garnishee is ineffectual to confer jurisdiction.</p>

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

A controversy to determine the right to the custody of Harry M. Foulke, an infant under four years old, son of the plaintiff. The mother of the child died when the child was ten months old. The relator Elizabeth Foulke was the sister of the mother, and wife of the brother of the plaintiff. Shortly before her death the mother wished, at her death, the child to be in the custody of her sister, the relator, who had had more or less the care of it from its birth.

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

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

<p>1. Pbactice.</p> <p>Although a complaint may have been subject to a special demurrer because a material fact was not averred with technical precision, yet if the defendant having joined issue, simply objects at the trial to the introduction of proof, the objection does not come in apt time or form.</p> <p>2. Appellate Pbactice — Objections.</p> <p>Questions touching the admissibility of parol evidence of the terms of a written instrument, must be preserved by proper objections whenever the objectionable testimony is offered.</p> <p>S. Evidence.</p> <p>While the record of an action between the plaintiffs and others by which their title to property in question was established inter parties might not be admissible against one who was not a party to that action, yet, when he himself offers it upon the trial of another action, it may be regarded as satisfactory evidence of their ownership.</p> <p>4. Judgment, when not a bab.'</p> <p>A judgment against one trespasser which has not been satisfied is not a bar to a suit against another trespasser to recover for the same wrong.</p>

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

<p> Error to tile District Court of Arespahoc County. </p>

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

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

<p>Peactice — Bile op Pabticulabs.</p> <p>It is provided by tlie civil code that it shall not be necessary for a party to set forth in a pleading the items of an account therein alleged, but that he shall within five days after demand thereof in writing by the adverse party, deliver to him or file a copy of such account, or be precluded from giving evidence thereof. This provision is peremptory.</p>

<p>1. Appellate Pbactice.</p> <p>The judgment of tlie trial court upon disputed questions of fact is almost universally accepted as conclusive.</p> <p>2. Same.</p> <p>A hill of exceptions duly'signed and sealed by the judge, and made a part of the record hy his order, is a condition precedent to the right to ask a review of the judgment as to any question of fact.</p> <p>3. Amendments — Discretion.</p> <p>The power which the code gives to the court to permit amendments to pleadings should be broadly and generously exercised to further the interests and protect the rights of litigants. The court may, however, affix conditions to whatever order it makes in responso to an application to amend, and, unless its discretion in this particular has been abused, error cannot be predicated on its action.</p> <p>4. Practice.</p> <p>STo question having been made in the court below as to the constitutionality of the passage of the Mechanic’s Lien Act of 1889, this court declines to discuss or consider the question.</p> <p>5. Appellate Practice.</p> <p>When the complaint states facts sufficient to constitute a cause of action, it cannot be attacked for the first time in this court because of technical inaccuracies.</p>

<p>National Banks — Interest.</p> <p>National banks in this state may collect interest upon loans at any agreed rate.</p>

Suit was brought by appellee, plaintiff below, against the appellant to recover damages received by the plaintiff, who was a laborer in the employ of the defendant, alleged to have been caused by the negligence of the defendant. Appellee in the early part of February, 1892, with two others was engaged in putting in and laying a drain pipe in a ditch or trench cut, 300 or 400 feet in length, and had been cut ten days or two weeks before the time of the accident.

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

<p>1. Assignment fob Benefit of Creditors.</p> <p>The assignee, under an assigment for the benefit of creditors, is competent to make an objection, within the meaning of the statute, to the claim or demand of any particular creditor.</p> <p>2. Same.</p> <p>It is not compulsory upon a creditor to assent to an assignment for his benefit in common with others, but his right to a proportionate share of the assets depends upon such 'assent. He cannot repudiate the assignment, as by attaching and selling part of the property, and at the same time participate in its benefits.</p> <p>3. Appellate Practice.</p> <p>An exception to the final judgment is essential to its review upon the facts, and such exception can be preserved only by a bill of exceptions.</p>

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