Volume 4 — Colorado Law Reporter

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

1883— On rehearing). Bill in equity brought to set aside a judgment at law in this Court, and for new trial upon the ground of surprise at the trial, and newly discovered evidence. Held: on final hearing, that this statute was controlling, and that, therefore, the bill was filed too late, but granted a rehearing, and requested the Circuit Judge to hear and determine the question.

<p>1. Warehouse Receipts—Assignment of. Though warehouse receipts are not technically negotiable instruments, and the assignment of them does not give the assignee a better title than his assignor had before assignment, yet the assignment of such instruments amounts to a symbolic delivery of the property therein mentioned, and vests the assignee with the same title to the property as an actual delivery would have done had the assignor in fact delivered the property to the assignee. Upon such assignment, and notice to the warehouseman thereof, and his assent to hold the property for the assignee, the title to the property vests in the latter with right to possession, against all the world, except valid liens which attached prior to such assignment.</p> <p>2. Same—Same—Pledge not Mortgage. The transfer of title and delivery of possession by the transfer of warehouse receipts is more in the nature of a pledge than a mortgage, and the right to so pledge goods as a security for advances, or payment of a debt, exists independently of statute, and rests on the doctrine of the common law, and is, therefore, not embraced in the statute relating to the acknowledgment and record of mortgages.</p> <p>3. Agent—Who May Bind a Corporation. The power of an officer or agent to bind a corporation is always to be implied when the act comes within the general scope of the authority or duties of the corporation, or its agent, in its exercise. When such implication may be said to arise, and to what extent, depends less upon any general rule than upon the circumstances of particular cases. An officer who purchases and ships and receives property for a corporation, may encumber the same for money to pay freight and charges.</p>

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

<p>Revenue—Must be Paid in Money—No Set-off Against—Coupons. The revenue law requires the payment of taxes to be in money —except that county warrants are receivable for ordinary county taxes and road warrants for road tax. Set-off against taxes cannot be enforced. The tender of coupons of county bonds, not by the statute made receivable for taxes, is not a good tender of taxes due. The holder of such coupons must pay his taxes, and enforce the payment of the sum due on his coupons by proper proceeding.</p>

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

<p>1. Evidence—Instructions. Judgment will not be reversed on account of the admission of improper evidence, when the jury were instructed that such evidence was not to be considered by them. If there was error in admitting the evidence, it was cured by the instruction to disregard it.</p> <p>2. Evidence. It is not error to exclude evidence relating to the consideration of a promissory note, when the question of consideration is not involved in the issue.</p> <p>3. Instructions. When the issue involves the question of the partnership of defendants, and evidence is heard on that question, it is not error to instruct the jury as to the law relating to proof of partnership.</p>

<p>Summons—Dismissal—Appearance. If summons is not sued out within one month after the filing of complaint, as provided for in section 30 of the Code, the suit may be dismissed. The filing of a petition to remove the cause to the Federal Court, or special appearance to move to dismiss, is not such appearance as waives summons.</p>

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

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

<p> Appeal from the County Court of Chaffee County). </p>

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

<p>Matters o# Discretion. The Supreme Court declines to interfere with rulings below which involve matters of sound judicial discretion.</p>

<p>Matters o# Discretion. The Supreme Court declines to interfere with rulings below which involve matters of sound judicial discretion.</p>

<p> Appeal from the County Court of Custer County). </p>

<p>1. Railroads—Location Under Act of Congress in Mountain Gorges. The location of railroads in mountain gorges, on the public domain, is subject to the second section of the act of Congress, approved March 3, 1875, relating to the use of canons, passes and defiles by railroad companies, which provides that no company which locates its line through such place shall prevent any other company from the use and occupancy of the same canon, pass or defile for the purpose of its road, in common with the road first located, or the crossing of other railroads at grade.</p> <p>2. Same—Same. This act bears upon its face the meaning that, where there is a canon, pass or defile so narrow as not to admit of the passage of two roads conveniently, it may be used by two or more railroads. But only in cases of necessity can one company go upon the right of way of another for the purpose of building its road.</p> <p>3. Same—Cross-Bill. The company having prior right of way may enjoin intrusion thereon by another company until facts are shown making it necessary for the second company to come on the right of way. Suit for injunction being brought, such necessity may be shown, and the right to enter upon and use such right of way may be enforced on cross-bill. The rights of the parties will be settled upon evidence, by final decree, and not in a preliminary way upon motion.</p>

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

<p>1. Damages—Negligence—Servant—The Common Law Doctrine and Colorado Statute. The common law doctrine that “the servant assumes all the ordinary risks of the service upon which he enters, including those risks which arise from the negligence of other servants of the same master in the same employment,” is not changed, as to servants, by the statute of Colorado (Gen. Laws, 342) giving right of action to certain survivors of one killed through the negligence, etc., of any officer, servant, manager, etc., of locomotive, stage, etc. That statute was adopted for the purpose of preserving or perpetuating certain causes of action af. ter the death of the party entitled thereto in the first instance—instead of creating a new cause of action, it simply keeps alive a right of action which would else have failed, upon the decease of the person injured; and the survivor who may sue under the statute, can only recover in case the servant injured, had he survived, could have recovered.</p> <p>2. Borrowed Statute—Construction of. The rule that Courts are bound to adopt the prior judicial construction of a. borrowed statute, is not inflexible. Where such construction is clearly erroneous, harsh and oppressive, or where it is inconsistent with the spirit and policy of the laws of the State borrowing the statute, the Courts of the latter may decline to follow it.</p>

<p>Evidence—Books of Original Entry. By the statute (Sec. 2953) books of original entry are admissible in evidence; but where the entries were made by third persons not present at the trial, it must appear, in order to their admission, that the person who made them is dead, or without the State, that he was disinterested when he made them, and they were made in the usual course of trade—the handwriting must also be proven. Otherwise it is error to admit the books in evidence.</p>

<p>1. Water Rights—Prior Appropriation—Surplus. Priority of right to use water exists from priority of appropriation. (Coffin v. Left Hand Ditch Co., 3 Colo. Law Rep., 479.) A junior appropriator may use any surplus of water not required for the necessities of the one vested with the original right; but where there is not enough for both, must give way to the prior rights to the extent of the original appropriation.</p> <p>2. Same—Drainage. The removal of water for drainage simply, \yith-out applying it to some beneficial use, is not such an appropriation thereof as gives a prior right thereto. A prior appropriator may not divert water for the purpose of irrigating lands he does not cultivate or own, or hold possession of by possessory right or title, to the exclusion of a subsequent bona fide appropriator.</p> <p>3. Same—Ditch not Essential to Appropriation. The construction of a ditch is not essential to the appropriation of water. A dam or other contrivance which will suffice to turn water from the channel and moisten the lands sought to be cultivated, or if’the land be rendered productive from the natural overflow of the water thereon, the mere cultivation of the land by means of the water so naturally moistening the same is a sufficient appropriation of such water, or so much thereof as is reasonably necessary for such use. The true test of appropriation of water is the application thereof to the beneficial use designed.</p>

<p>Mines and Mining Claims—Possession. The statute recognizes two kinds of possession of mining ground; first, where the miner, by virtue of work and improvements, holds the land independent of location statute as.against one having no better right; second, where, after discovery, he makes location under the statute, the law gives him possession of his entire claim as marked on the surface, until he does, or omits to do, something which in law amounts to abandonment. Failure to comply with the location statutes in the proper time, opens the portions of the claim not in actual possession to exploration and location, as though no attempted statutory location had been made. The rulings in the opinion (3 Colorado Law-Reporter, 377), adhered to.</p>

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

<p>1. Practice in Supreme Court—Exceptions. In trials to the Court, the Supreme Court will not review the judgment upon the evidence, when there was no exception to the judgment. But may pass upon assignments of error, resting on exceptions duly reserved at the trial.</p> <p>2. Bill of Exchange. Two acceptors of a bill of exchange become severally liable for its payment, as co-makers of a promissory note. One having voluntarily placed himself in this attitude, cannot plead want of consideration for his acceptance.</p>

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

<p>1. Insurance—Stockholders in Corporation. A stockholder in a private corporation is possessed of an insurable interest in the corporate property, and may maintain an action on policy of insurance issued on the same.</p> <p>2. Subrogation. Quere: Can the company be subrogated to the rights of the insured stockholder ?</p>

<p>1. Corporation—Liability as Successor. When one corporation conveys to another all its assets and franchises, the latter becomes thereby, substantially, if not formally, the legal or equitable successor of the former, and must be held to take cum onere.</p> <p>2. Limitation in Equity. Although Courts of equity as a general rule follow the statute of limitations, they do not do so when manifest wrong and injustice would be wrought.</p>

Admiralty appeal from District Court.) The libellants are insurance companies, and as such insured certain goods shipped from St. Louis to New Orleans upon the boats of defendant, and the said goods having been lost in part and in part damaged by a collision, they paid the losses to tfys shippers, and sued the defendant in admiralty. The other facts sufficiently appear in the opinion.

<p>Criminal Law—Illegal Voting-Indictment—Requisites. An indictment which was claimed to be under Revised Statutes, Sec. 7050, for illegal voting, alleged that the accused, on April 2, 1883, at the township of U. in the county of F., did unlawfully, wilfully and knowingly vote more than once, to wit, twice, at a certain corporation election then and there being holden and authorized to be holden by the laws of the State. Held., That the indictment is fatally defective in failing to designate the election at which the defendant voted, notwithstanding Revised Statutes, sections 7215, 7225.</p>

<p>School Sections in Territories. Coal entries may be made on school sections in the Territories.</p>

Action to rescind a contract for the sale of land, together with the deed of conveyance thereof, and for the return of purchase money, etc., on the ground of false and fraudulent representations as to the validity of the title, and the freedom of the land from a dower right of the widow of one Pollard. The bill was dismissed, and the plaintiff appealed.

<p>1. The Civil Rights Cases—Secs, i and 2 Unconstitutional. The first and second sections of the Civil Rights Act, passed March 1, 1875, are unconstitutional enactments as applied to the several States, not being authorized by either the XHIth or XIVth Amendments of the Constitution.</p> <p>2. The XIVth Amendment is prohibitory upon the States only, and the Legislation authorized to be adopted by Congress for enforcing it is not direct legislation on the matters respecting which the States are prohibited from making or enforcing certain laws, or doing certain acts, but is corrective legislation, such as may be necessary or proper for counteracting and redressing the effect of such laws or acts.</p> <p>3. The XHIth Amendment relates only to slavery and involuntary servitude (which it abolishes); and although, by its reflex action, it establishes universal freedom in the United States, and Congress may probably pass laws directly enforcing its provisions; yet such legislative power extends only to the subject of slavery and its incidents ; and the denial of equal accommodations in inns, public conveyances and places of public amusement (which is forbidden by the sections in question), imposes no badge of slavery or involuntary servitude upon the party, but at most, infringes rights which are protected from State aggression by the XIVth Amendment.</p> <p>4. Whether the accommodations and privileges sought to be protected by the first and second sections of the Civil Rights Act, are or are not, rights constitutionally demandable ; and if they are, in what form they are to be protected, is not now decided.</p> <p>5. Nor is it decided whether the law as it stands is operative in the Territories and District of Columbia; the decision only relating to its validity as applied to the States.</p> <p>6. Nor is it decided whether Congress, under the commercial power, may or may not pass a law securing to all persons equal accommodations on lines of public conveyance between two or more Slates.</p>

By an act of the General Assembly of Iowa, approved March 23, 1874, a tariff of maximum charges was provided for the transportation of freight and passengers by railroad.

<p>1. Evidence—Negative Averment. A plaintiff who in his complaint makes the basis of his suit to consist of negative averments, takes the burden to show that, at least prima facie, they are true.</p> <p>2. Same—Same. In suit to set aside patent on the ground of conspiracy and fraud, and that the pretended grantors were fictitious, and never entered the lands nor resided in the county, proof by a large number of witnesses, who were in a position to know, that no such persons resided in the county or upon the lands at the ;time, is sufficient to shift the burden and make it necessary for those claiming under such supposed grantors to establish their existence.</p> <p>3. Fictitious Grantee. A grantee is as necessary to the conveyance of land as the grantor. Hence, a grant to a fictitious person is simply void.</p> <p>4. Same—Claimants Under. Those claiming under such fictitious grantee are not protected as innocent purchasers for value, for the reason that the original patents were absolutely void, and so no title passed from the United States, and of course none to those claiming under the grantees in such void patents. A person who has acquired title by fraud may make a valid conveyance to a bona fide purchaser; but one who has never acquired title cannot convey it.</p> <p>5. Laches cannot be imputed to the Government. After a lapse of time sufficient to raise the presumption that witnesses are all dead, a Court of equity may, on that ground, refuse to entertain the controversy.</p> <p>6. Estoppel. The United States is not estopped by the frauds of its public officials.</p>

<p>Mines and Minerals—Conflicts—Survey. The plat of survey of a lode mining claim must show all conflicts, and unless such conflicts are shown, the survey should not be approved.</p>

<p>1. Contempt—Scandalous Matter in Pleading. The introduction of scandalous matter in a pleading is in violation and contempt of those well settled rules of propriety and decorum which constitute the chief distinguishing characteristics of the administration of justice through the Courts, and cannot be allowed as among the privileges of an attorney.</p> <p>2. Same—Same—Power of Court to Punish. The power of Courts to punish for contempt is not confined to the matters enumerated in Section 321 of the Civil Code. Courts possess the inherent power to punish for contempt all acts calculated to impede, embarrass or obstruct the administration of justice, which power is independent of statutory provision, and cannot be made to depend upon the legislative will.</p> <p>3. Same—Same—Protection of Suitors. The protection of the rights of litigants is of much higher and graver moment, and a much more imperative duty than punishment for an offense against the Court, or personal affront to the Judge.</p> <p>4. Same—Practice in Case of. When the respondent is fully apprised by the citation served upon him, of the matters concerning which he is required to answer, it is not necessary to propound interrogatories to to him ; but the matter may be disposed of upon his response to the citation.</p> <p>5. Same—Intent. The question of contempt does not depend upon intention, although where contempt was intended it will constitute an aggravating feature, which goes to the gravamen of the offense.</p>

The Cincinnati Hotel Company is the perpetual lessee of a lot one hundred and seventy-eight feet front, on Fourth street, Cincinnati, and two hundred feet deep on Central avenue, on which there is a large and costly building, used partly for hotel purposes and partly rented out as store-rooms. That part of said building fronting on Fourth street is known as the Grand Hotel.

<p> On Demurrer.) </p>

<p>1. Extradition—Requisition not Affected by Change in Governors. It is not material whether a requisition demanding a fugitive from justice was issued by a Governor in office at the time of its presentation. The requisition is the act of the Governor, and not the individual who holds the office. When issued by the Governor of a State, it will remain in force until recalled or revoked by the same authority.</p> <p>2. Same—Conventional, and can only be Enforced upon the Terms Provided. Aside from the constitution and statutes enacted pursuant thereto, there is no provision for the extradition of fugitives from justice. The States are separate and independent sovereignties, and the criminal laws of one cannot be enforced in another; and but for the conventional arrangement, amounting to a treaty stipulation in the constitution of the United States, a fugitive from justice could not be extradited. A strict compliance with the laws regulating the question is necessary to authorize the Governor to issue his warrant for the arrest and return of a citizen, upon the requisition of the Governor of another State. A requisition which is not accompanied by a copy of an indictment or affidavit certified by the demanding Governor to be authentic, will not authorize the Governor of this State to issue his warrant under the extradition laws. The Governor in such case has no authority except that given by the statute.</p> <p>3. Same—Habeas Corpus. In case of one charged with crime in a foreign State, and brought into Court upon habeas corpus, the matter must be determined upon the facts in the return shown to have existed at the time of the service of the writ, and not upon facts which occurred subsequent thereto.</p>

<p>On demurrer to answer.)</p>

<p>Mining Claim. Essentials and extent of a valid location.</p>

<p>Removal of Cause—Pending Motion—Re-settlement of Order of Affirmance On Appeal. On the removal of a cause from a State Court to the Circuit, this Court may dispose of a motion pending before a general term of the State Court, at the time of removal, for a re-settlement of the form of an order on affirmance, and insert such reasonable provisions in the order of affirmance as it would have been competent and proper for the general term to have done had not the cause been removed.</p>

<p>1. New Trial—Newly Discovered Evidence—Surprise. A new trial should not be granted on the ground of newly discovered evidence, unless such evidence bears directly upon the matters in issue, and its effect if it had been heard, ought necessarily to have resulted in a different verdict. Evidence, though discovered after the trial, which bears upon collateral matters merely, will not authorize a new trial. A party cannot well claim to be surprised that his adversary testifies to a state of facts within the knowledge of both, though their version of the details differ.</p> <p>2. Same—Error Superinduced by Party. A new trial will not be granted for an error in instructions, which was superinduced or contributed to by the conduct of the party seeking to take advantage of it, when it does not appear conclusively that such error resulted prejudicially to the party so at fault.</p> <p>3. Instructions—Gambling Transactions. Where the proof is not conclusive as to whether, in the purchase or sale of articles for future delivery, there was a bona fide intention to deliver the property nominally purchased or sold, or whether the transactions were intended to be simply speculations in prices, and settled upon the basis of the difference between the price at the time of the purchase and time for delivery, it is not error to submit the matter to the jury as a question of fact, to be determined upon the evidence, coupled with direction that if they find the latter state of case to be true, the claim founded thereon must be disallowed, as the result of a gambling transaction.</p> <p>4. Same—Same. Quere: Whether a party whose lawful debt has been paid at his request, should be heard to question the source from which the means of payment came, in a suit for the amount so paid.</p> <p>5. Affidavit of Juror. Upon grounds of public policy, no affidavit, deposition, or sworn statement of a juror, will be received to impeach a verdict, to explain it, to show on what ground it was rendered, or to show a mistake in it.</p> <p>6. Motion—Notice of—Construction, The provisions of the Code must be liberally construed with a view to promote their object and assist parties in obtaining justice. Section 390, (providing lor twenty-four hours notice of motion) requires reasonable notice, not exceeding twenty-four hours, under the circumstances of each particular case.</p>

This was an appeal from the judgment of the majority of the Court of Appeal (Baggallay and Brett, L. JJ., Holker, L. J., dissenting,) affirming a judgment of the Queen’s Bench Division (Lord Coleridge, C. J., Manisty and Bowen, J. J.,) discharging a rule nisi for a new trial. The case is reported in 9 Q. B. Div., 441, and 46 L. T. Rep. (N. S.) 677.

<p>(The opinion of the Court is reported in full in IV Colorado Law Reporter, No. to, p. 145.)</p>

<p>1. Custody of Infant. The right of a parent to the custody of an infant child is not absolute. When the parent has voluntarily parted with custody and seeks to regain it, the interests of the “infant will be considered, and, if of sufficient discretion, its wishes consulted; ” and those considerations will be controlling.</p> <p>2. Same—Years of Discretion. In this country the right of the child to determine as to its custodian does not depend on age alone; but its capacity, information, intelligence and judgment, are evidences which will be taken into the account, and from these, ascertained upon examination, the Court will determine whether it can take a comprehensive view of its situation and surroundings, and form an intelligent preference.</p>

<p>1. Statutory Construction. Courts should not declare a statute a nullity when they can find any reasonable way of avoiding it, nor should they declare particular words of a statute of no. effect, unless compelled so to do in order to save the rest of the statute. Courts ahould not legislate! neither should they destroy legislation, when, by careful and conservative decisions, legislative enactments may be «pheld. Any unnecessary overthrow of an act of the General Assembly, by judicial decision, is as much a usurpation of legislative power as an attempt at affirmative legislation.</p> <p>2. Civil Code, Sec. 116.—Its Object and Meaning. The object of this statute is, and always has been, that creditors pursuing the same debtor by attachments should, whenever that is practicable, under certain conditions and limitations as to time, prorate in the proceeds of the property attached; time was, under the old system, as well as under the new, the essential condition and limitation. The words of this section, “returned to the same term of the Court to which they are returnable,” should be held to mean and apply to all writs of attachment which are in fact returned to, at or during the same term of Court at which, or during which, they may be properly returnable according to law.</p> <p>3. Attaching Creditors—When Allowed to Prorate. Where attachment suits are brought by several creditors, and their writs are properly returned to . the same term of Court, and judgments are regularly obtained thereon, an order will1 be entered directing the sheriff to divide the proceeds realized from the sale of the attached property among such attaching creditors, in accordance with Sec. 116 of the Code.</p>

<p>Attachment. The amendment to the Code designated as the 14th ground of attachment is inoperative, and attachment sued out thereon will be discharged.</p>

<p>1. Municipal Corporation—May Change Grade of Streets. A municipal corporation may, in the exercise of a power granted by the State, elevate or depress the grade of a street, without making compensation to owners of abutting property for resulting injuries, unless the power has been abused by an unskillful execution.</p> <p>2. Same—Same. This rule is not changed by section 15 of the bill of rights in the Constitution of Colorado. A municipal corporation has the same dominion over its streets, that an individual has over his private property, and in the lawful exercise of the absolute power, is liable only to the same extent.</p> <p>3. Same—Damages. It follows that a municipal corporation is not liable to abutting property owners for any damages resulting from the construction of a viaduct, the approaches to which practically amount to raising the grade of the street.</p>

<p>i County Warrants—Who may Sue. County warrants payable to bearer are not negotiable, as bills of exchange and promissory notes. All holders take them subject to any defense that may be made against the original payee. Nevertheless the property therein passes by delivery, when they are payable to the holder. Hence, when the holder is a citizen of another State, he may maintain action thereon in the Federal Court, even when the payee cannot maintain such action.</p> <p>2. Same—Due as Upon Direct Promise. Such instruments are not assignable within the meaning of the act of Congress of 1875 regulating the jurisdiction of Federal Courts (18 Stat., 470). They are taken to be due on an original and direct promise from the maker to the bearer, and not by assignment from the first holder.</p> <p>3. Same—Remedy. In such case, the remedy (in the United States Courts) of the holder in the first instance is by action at law prosecuted to judgment, as a foundation for mandamus to compel the levy and collection of a tax for their payment.</p> <p>4. Upon warrants issued for interest on a judgment, an action will not lie.</p>

<p> On Demurrer to Bill). </p>

<p>1. Location of Mining Claim—End Stakes. The statute of Colorado (R. S., 630,) affords no support to one who, in locating his claim, fails to set the proper stakes at the end of the claim, when the proper position for them was not inaccessible, but merely difficult of access, or approachable by a circuitous route. In such case the title will only relate to the time when the stakes are subsequently set.</p> <p>2. Same—Change of Lines. The locator of a mining claim cannot, after the location, change the lines of his claim so as to take in other ground, when such change will interfere with the previously accrued rights of others.</p> <p>3. Action for Realty—Defense. A defendant in an action for the possession of real estate, when he claims only a part of the tract sued for, must show what part he claims.</p> <p>4. Alien—Right to Locate Mining Claim. Upon declaring his intention to become a citizen, an alien may have advantage of work previously done, and of a record previously made by him in locating a mining claim on the public mineral lands.</p> <p>5. Same—State Court may Naturalize. The necessary oath declaratory of intention by an alien to become a citizen of the United States, may be administered in the courts of record of the State. One who has so declared his intention to become a citizen may make a valid location of a mining claim.</p>

<p>Liability of Sureties on Official Bond.—The-sureties on the bond of an officer of an incorporated company for the faithful performance of his duties, as such, are not relieved from liability on account of the fact that the officer was already a defaulter when the bond was given, provided the officers of the corporation had no knowledge of the defalcation. Mere negligence in the officers of the corporation in failing to detect the fraud will not relieve the sureties.</p>

<p>Adverse Claim—Suit in Court—Jurat, The adverse claim in this case was sworn to by an attorney and not by the claimant, and was accordingly dismissed. No appeal was taken from the order of dismissal. But suit had been commenced by the adverse claimant in Court, and as a large part of the applicant’s claim is involved, action in the Land Department is suspended to await the result of the Court proceedings.</p>

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

<p>1. Constitutional Law. A statute which assumes to limit or direct the compensation to be paid for private property, when taken for public or private use, is in so tar unconstitutional. Art. II, Sec. 15, Constitution.</p> <p>2. Same—Part of Statute Void. When, however, part only of an act is unconstitutional, it does not necessarily follow that the whole statute must fall, and the same is true of the different portions of the same section. Whether the valid portions shall be enforced, depends upon the design of the entire law, and their connection with the void provisions. The act should be sustained, if the unconstitutional portions can be stricken out and the law still be such as to accomplish the purpose of the Legislature.</p> <p>3. Condemnation Proceedings—Not by Action. By the terms of the constitution (Art. II, Sec. 15) the compensation for taking or damaging private property, against the owner’s consent, must be ascertained by a jury or board of commissioners. This requirement cannot be dispensed with by legislative enactment. And under the statute the ordinary civil action cannot be resorted to, but the object can only be reached by special proceedings under the act on the subject of eminent domain.</p>

<p>1. Homestead. No one is entitled to the benefits of the homestead statute of Colorado, unless the word “homestead” be entered on the margin of the recorded title'to the premises so occupied.</p> <p>2. Foreign Corporation. A certificate duly recorded in the proper office, “that the principal place where the business of the corporation shall be carried on in the State of Colorado, shall be at Denver, in the county of Arapahoe, in said State, and that the general manager of said corporation residing at said principal place of business, is the agent upon whom process may be served in all suits that may be commenced against said corporation,” is a sufficient compliance with the statute (Gen. Laws, 1877, p. 151, Sec. 213) in that behalf, without designating the said agent by name— there being such an officer as “general manager” of the corporation at the place designated.</p>

<p>1. Practice—Answer Before Default. It is not error to permit an answer to be filed after the statutory period for answering has expired—no default having been entered. Quere, whether the Code (Sec. 78, Code of ’83) renders it necessary in such case to obtain leave of the Court to file answer, in view of the holding that “ the office of a default is to limit the time during which the defendant may file his answer?”</p> <p>2. Same—Reference to take Proof in Equity Cases—Trial. In purely equitable cases, the trial must be to the Court, unless both parties consent to a trial by a jury. (Sec. 154, Code of ’83.) Neither the Chapter on References nor any other provision of the Code operates to deprive the Court of the right, in such cases, to direct, upon its own motion, the taking and reporting of the evidence by a referee. The trial may be upon proofs thus taken, or upon testimony given in open Court.</p> <p>3. Judgment—May be Entered of Record in Vacation. The pronouncing of judgment is a judicial act; the entry of record thereof is a ministerial duty. The judgment is complete when properly declared, though the mechanical act of recording the same has not been performed. It is not essential that this be done in term time.</p> <p>4. Practice in Supreme Court—When Evidence Taken Before Referee. Where a cause is tried to the Court upon proofs taken by a referee or master, it is the duty of the Supreme Court to sift and weigh all the evidence, with a view to a just determination, uninfluenced by the proposition that the Court below had superior facilities to judge of the credibility of witnesses, and the judgment will be reversed if not supported by the weight of evidence.</p> <p>5. Water Rights. If the construction of a ditch be prosecuted with reasonable diligence, the right to water therethrough relates back to the commencement thereof.</p> <p>6. Same. A failure to use water is competent evidence of an abandonment of the right thereto; and if continued for an unreasonable period it creates a presumption of an intention to abandon ; but this presumption is not conclusive and may be overcome by other satisfactory proofs.</p> <p>7. Same. A change of the point of diversion on the same stream does not affect the priority acquired by the original appropriation, provided the quantity of water diverted remains the same, and no intervening appropriator is injured.</p> <p>8. Same. To acquire a right to water from the date of diversion one must, within a reasonable time, employ the same in the business for which it was taken.</p>

<p>1. Constitutional Law—The National and State Constitutions. The National constitution is a grant of enumerated powers; State constitutions are merely limitations upon the otherwise plenary powers of the Legislature. In case of a Federal statute the inquiry is, as to whether the grant of power is broad enough to authorize its passage; while in a State statute the constitution is examined, not to see if the enactment thereof is authorized, but only to see if it is prohibited.</p> <p>2. Same—Legal Presumptions. Where the validity of an act of the Legislature is assailed for a supposed conflict with the constitution, the legal presumption is in favor of the validity of the statute, and before the Court will be warranted in declaring it void, a clear conflict with the constitution must be shown to exist.</p> <p>3. Same—Negative form of Expression does not Affirm the Converse. In the constitution of Colorado, the expression that “no county seat shall be removed unless a majority of the qualified electors of the county, voting on the proposition, vote therefor,” does not carry with it the affirmative proposition that if a majority do vote therefor, the county seat shall be removed; nor does it limit the power of the Legislature to require a greater than a majority vote to remove a county seat. Less than a majority vote may not remove a county seat; but above, beyond and outside of this minimum limit, the jurisdiction of the Legislature is unrestrained.</p>

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

<p> Error to District Court of Gunnison County.) </p>

<p>On motion to dismiss appeal.)</p>

<p>1. Attorney at Law—Malconduct in Office. For an attorney to stop a Judge of a Court on the street, and use abusive language to him concerning any judicial action in a case pending before such Judge, is such malconduct in office as will warrant the striking of his name from the roll of attorneys.</p> <p>2. Same—Same—Jurisdiction. In such case it is not necessary that the indignity or insult to the Judge should occur in open Court, nor that it constitutes a statutory contempt of Court in order to confer on the Supreme Court jurisdiction to disbar therefor.</p>

<p>1. Legislative Enactment—Title of Constitutional Provision. The constitutional provision that no act of the General Assembly shall relate to more than one subject, which subject shall be clearly expressed in the title thereto (Sec. 21, Art. V, Con. Colo.) is imperative, and an act not conforming thereto is void.</p> <p>2. Same—Same. The act entitled “An Act to Amend Sec. 76, of Chapter C, of the General Laws of Colorado, entitled ‘Towns and Cities, and especially cities of the Second Class,’” approved Feb. 11, 1883, failing to comply with said constitutional provision, is void. Municipal officers claiming to hold under the provisions of said act have no rightful claim to such offices, are intruders, and will be ousted.</p> <p>3. Same—Repealing Clause. A clause in such act repealing all acts in conflict therewith, is also void, and the laws existing at the time of the passage, are not affected thereby.</p>

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

<p>1. Secret Trusts—Creditors. Bona fide creditors should be accorded preference over a secret and hidden equity against the property of the debtor, of which they knew nothing at the time of giving credit; and provision to this end may be effectual in a decree entered in a suit to which such creditors are not parties (Code of 1883, Sec. 16) by “saving their rights.”</p> <p>2. Joinder of Parties and Causes of Action. In an action by a creditor to enforce his right of precedence over the holder of such secret trust, all the parties in interest may be joined, and the whole controversy settled in one suit.</p>

<p>1. Promissory Note—Proviso Appended. “On or before March 12th, 1882, I promise to pay A two hundred dollars, at City National Bank, with interest at ten per cent, per annum, value received. This note becomes due and payable when, if before March 12th, 1882, A, B & Co. shall dispose of a part or all their interest in the New York hotel, or when the interest of B may be disposed of,” is in effect a promissory note* and is not affected by the provision appended to the body thereof.</p> <p>2. Same—Endorser. One who endorses such promissory note before its delivery and to give it credit, will not be heard to plead a want of consideration for such endorsement, but will be held as an original promisor and joint maker of the note. Though he may not have participated in the consideration, he will be deemed to have adopted the consideration of his joint maker.</p> <p>3. Same—Same. Such original promisor and joint maker cannot at the same time be liable as surety merely, so as to be released, by acts of obligee which would release a surety.</p> <p>4. Error not Assigned. The Supreme Court will not review questions not raised by specific assignment of error.</p>

<p>1. Costs—Apportionment—Review. There were several attachment suits for sums varying from $300 to over $4,000. The attached property was placed in the hands of a receiver and considerable costs incurred in consequence. The suits were dismissed at cost of plaintiffs. The clerk divided the costs of receiver equally between, plaintiffs. Motion was made to retax the costs and apportion the costs of the receiver in proportion to the amounts sued for by the respective plaintiffs, which motion was overruled. From the judgment overruling the motion to retax, writ of error was sued out by one plaintiff against defendants.</p> <p>Held, That as the defendants below have no interest in the judgment and are not in any way affected by it, and as the co-plaintiffs, who would have been affected by the allowance of the motion, are not before the Court, no adjudication disturbing the action below can be had.</p>

<p>Error to the District Court of Clear Creek County.)</p>

<p>1. Amended Complaint—Properly Allowed—When Defendants not Prejudiced. In an action brought by two of four tenants in common for the possession of real estate, the complaint alleging right to one-fourth in each plaintiff, it is not error to allow an amended complaint joining two other tenants in common, and claiming the entire property. Such amendment does not change the cause of action, nor does it prejudice the rights of defendants, who claim adversely to the title asserted by all the plaintiffs. The consent of all the plaintiffs to be thus joined will be presumed, nothing appearing to the contrary.</p> <p>2. Mining Claim—Mistake of Clerk in Recording. A mistake of the clerk in recording the certificate of location of a mining claim, for which the locators are not responsible, cannot avail defendants, who permit default, in an action for possession by the locators.</p> <p>3. Same—Default. A default admits all issuable facts in the complaint. The complaint in this case alleging that- plaintiffs were in possession of the claim, when defendants wrongfully entered thereon and'ousted them, which being an issuable fact admitted by the default, defendants have no standing in the case. Whether the location be valid or not, the possession of plaintiff as alleged, is sufficient to defeat a recovery by defendants.</p>

<p>Error to the County Court of Jefferson County.)</p>

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

<p>Practice in Supreme Court—Province of Jury. The Supreme Court will not consider errors not excepted to below. It is the province of the jury to determine the weight of testimony when conflicting.</p>

<p>1. Statute of Frauds—Demurrer to Complaint. The statute of frauds has changed the rule of evidence, not the rule of pleading. A plea which set forth a contract for the conveyance of real estate is good on demurrer, though it does not aver that the contract was in writing—it not appearing in the plea that it was not in writing.</p> <p>2. Inconsistent Pleas. Under the old practice, while the parts of each plea could not be repugnant to each other, still separate special pleas in the same answer might be inconsistent, yet not render the pleading obnoxious to demurrer.</p> <p>3. Accord and. Satisfaction. The failure to make the accord a full satisfaction, being the fault of plaintiff, defendant was not precluded from the benefit of this defense.</p> <p>4. Practice—When Exception to Ruling on Demurrer not Waived. Defendant did not waive his exception to the ruling on demurrer to his plea of accord and satisfaction, by going to trial on the plea of nut tiel record. The two pleas present entirely different defenses. The latter denies the existence of the original judgment as pleaded, the former admits its existence and avers satisfaction thereof. Had the defendant amended the former plea and gone to trial thereon, his objection would not be considered in the Supreme Court; but trying the issue raised by the plea of nut tiel record was no waiver of his exception to the ruling of the Court against the plea of accord and satisfaction.</p>

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

<p>1. Proceedings for Contempt and Disbarment—Distinction Between. Proceedings for contempt, may be termed a police regulation or power for the protection of the Court from present direct interference and annoyance in a trial or proceeding taking place before it, while proceedings for the disbarment of an attorney, are intended to protect generally the administration of justice, to save the legal profession from degradation by unworthy membership, and to guard the interests of litigants against injury from those intrusted with their legal business.</p> <p>2. Same—Same—Proceedings upon. The power to act in connection with contempt, is lodged with the Court before or against whom the offense is committed. Authority for proceeding in disbarment is possessed exclusively by the tribunal authorized to grant licenses admitting to the profession. The former is punished by fine or imprisonment, and may be largely ex parte. The sole penalty in connection with the latter is a prohibition from practicing in the Courts of record, and this judgment can only be entered upon notice of charges preferred, and opportunity for defense. A contempt may constitute a ground for disbarment; but it by no means follows that the cause for disbarment must, in all cases, constitute a contempt.</p> <p>3. Official Misconduct by an Attorney. If a judge and attorney meet outside the court room and engage in an altercation about some matter in no way connected with judicial action, they are, and ought to be, upon precisely the same footing, in all respects, as other private citizens; but when the attorney utters a threat against, or makes an assault upon a judge on account of a ruling or decision in court, the situation is entirely different. His action, in such case, has a direct influence on the judicial mind. It is calculated to disturb and embarrass the proper administration of justice. The temple in which a lawyer is sworn to minister, is not bounded by the walls of the court room; his official oath is not a cloak to be worn only in the presence of the court, and when he, by wilful misconduct toward a judge on account of judicial acts, interferes with or impedes the dignified and proper administration of the law, or is guilty of conduct which tends to do so, whether in the court room or on the street, he is guilty of official misconduct.</p>

<p>1. Ejectment—Impeachment of Deed. In an action at law for the possession of real estate, being part of a town site on the public domain, a deed which is regular upon its face, is not impeachable for failure to, comply with any of the preliminary requisites to the execution thereof, no such issue being raised by the pleadings. The presumption obtains, that the officer empowered by law to make the grant, did his duty in all respects, and required the grantor to show by legal proofs that he had complied with all the rules and regulations necessary to entitle him to the deed; the case being analogous to grant of a patent by the land department of the government.</p> <p>2. Direct Proceedings to Impeach Deed. If a deed has been executed in such case by the person named by the law to make conveyances, to one not entitled.to it, the remedy of the injured party is a direct proceeding to set it aside, or for other equitable relief consistent with the facts and circumstances of the particular case. Such deed is not void, but only voidable.</p> <p>3. Instruction. An instruction is fatally defective which contains one correct and one incorrect proposition respecting the legal effect of the evidence produced on the trial, and tells the jury that if the evidence sustains either proposition, the verdict must be for the plaintiff—it being impossible to know upon what finding of facts the verdict is based.</p>

<p>1. Sidewalks and Sewers may be Required at Cost of Abutting Property. The authorities of cities and towns are vested with power to provide for the construction of both sidewalks and sewers, and assess the cost thereof against the adjacent and benefited property. Such assessments, when properly made, becomes a lien upon such property, which by proper proceeding may be enforced.</p> <p>2. Notice and Opportunity for Hearing. No such assessment can be enforced, however, without notice to the owner of the property affected, and an opportunity afforded him to be heard as to the work so done, and the amount of the charge against his property. An ordinance which undertakes to so charge private property without making provision for notice and hearing, is void.</p> <p>3. Due Process of Law. The phrase, “due process of law,” as contained in the Federal constitution, is not held to require the intervention of judicial process and a trial in Court, but is met by any proceeding which is in accordance with law and appropriate to the object in view; but a citizen cannot be deprived of his property by an ex parte proceeding, though under the forms of law, in which he is neither heard nor allowed an opportunity to be heard.</p> <p>4. Relief by Certiorari or Injunction. A citizen whose property is threatened with sale under an attempt to enforce such lien, when he has no opportunity to be heard, can resort to either certiorari or bill in equity and injunction for relief.</p> <p>5. One Citizen may not, in such Case, Sue for a Community. In case a private citizen is threatened with, or suffers some peculiar damage to his individual interests, that is, some damage distinct from every other inhabitant, he may maintain his hill for relief in his own name. But cannot assume to be the champion of the community, and in its behalf challenge the public officers to meet him in the Courts to defend their Official acts</p>

<p>1. Criminal Law—Indictment. An indictment for a statutory offense is sufficient which charges the offense in the language of the statute, or so plainly that the nature of the offense can be easily understood by the jury. An indictment charging that the defendant did “ counterfeit and forge the handwriting of another * * to a promissory note * * with the intent to damage and defraud ” the said persons, is good, under the latter clause of Sec. 775, General Statutes, without the word “ feloniously.”</p> <p>2. Same—Evidence. Upon the trial of one indicted for forgery, it is not error to admit evidence tending to prove that defendant altered or passed the forged instrument. Such evidence is proper as showing the intent with which the handwriting was forged.</p> <p>3. Same—Instructions. In such case, an instruction defining the offense as follows : “If the jury believe, from the evidence, that if the defendant signed the name of Lawsha Brothers, in San Juan county, Colorado, to the note for $460, in evidence, with the intention of obtaining money thereon, and did obtain money thereon, you will find the defendant guilty, as charged in the indictment,” is palpably erroneous; the facts assumed, if true, not necessarily constituting an offense under the statute. The crime consists in forging the signature, with intent to damage or defraud some one, and not in signing the name with intent to obtain money.</p>

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

Covington filed Ms bill to enjoin the collection of a fi.fa. which was levied on homestead property.

<p> Error to U. S. Circuit Court, Northern District of Ohio.) </p>

<p>1. Carriers—Their Contracts at Common Law as to Connecting Lines. At common law a carrier is not bound to carry except on his own line. If he contracts to go beyond, he may, in the absence of statutory regulation to the contrary, determine for himself what agencies he will employ.</p> <p>2. Same—Railroads—Their Powers in this Connection. A railroad company is prohibited, both by common law and by the constitution of Colorado, from discriminating unreasonably in favor of or against another company seeking to do business on its road.</p> <p>3. Same—Connecting Lines—Rights Inter se. The Legislature cannot take away the right to a physical union of the roads; but whether a connecting business shall be done over them after the union is made depends upon legislative regulation or contract obligation.</p> <p>4. Same—Rights as to Public. Railroad companies are created to serve the public as carriers for hire, and their obligations to the public are such as the law attaches to that service.</p> <p>5. Court of Chancery—Its Province to Enforce, not Create Obligations. A court of chancery is not, any more than a court of law, clothed with legislative powers. It may enforce specific performance of obligations arising out of contract, law or usage, but it cannot create the obligation.</p>

On the trial before Futhey, P. J., without a jury, the facts were found as follows: The plaintiff held a note of one Chambers payable at the National Bank of Chester county; this note was indorsed by the plaintiff to the defendants, who were bankers, with whom the plaintiff had an account, and the proceeds placed to his credit. The note matured on a Saturday, and by direction of the plaintiff the defendants held it until the Tuesday following without presentation or protest.

Action in damages for withholding gas from the Biddle House, a hotel in Detroit, of which plaintiff is proprietor. The company demanded that plaintiff should keep on deposit with it the sum of one hundred dollars. Plaintiff declined to deposit that sum, and tendered seventy-five dollars, which was refused, and the gas was cut off. The hotel used about sixty dollars worth of gas per week, and its requirements were increasing.

<p>1. Change of Venue. Defendant in a criminal case is entitled to a change of venue whenever it appears from the opinions and facts stated by a number of credible witnesses that he cannot have a fair trial in the county where the offense was committed, and the witnesses for the Commonwealth merely express a contrary opinion without giving the facts to sustain it.</p> <p>2. Homicide—Extenuation—Sudden Heat and Passion. The accused hearing from his sister that A had whipped their brother, became greatly enraged, went out instantly and killed A: Held, the circumstances of the whipping, of which accused did not know until after he had done the killing, are incompetent to prove provocation. The provocation which excuses must be something which a man knows of and resents at the time he does the killing, not what time or accident afterwards brings to light.</p>

<p>1. Practice—Several Suits—Same Parties and Cause. Suits upon causes of action which might have been joined may be consolidated (Code, Sec. 20), and so of several actions for the sam e cause. Where there are several actions for the same cause pending in the same Court at the same time, any step taken in one of them should bind the parties in all of them, although the causes were not consolidated.</p> <p>2. Same -Removal of Cause. Where two or more suits between the same parties in interest, as to the same subject matter, are pending in the State Court, a trial of one will conclude the parties; and removal to the United States Court can be had in neither, if application therefor is not made before or at the first term when either could have been tried.</p>

<p> Appeal from the Superior Court of Denver.) </p>

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

Action for breach of the following contract: “Milwaukee, January 24, 1882. Fourteen thousand bushels No. 2 barley, April, at $0.96.

<p>1. Damages—Compensatory. The fact that damages for personal injuries are large, does not necessarily make them punitive. For serious personal injury, large damages are only compensatory.</p> <p>2. Municipal Corporation—Obstruction of Sidewalk. A municipal corporation is bound for injuries resulting from obstructions on sidewalk. An insecure coal-hole is an obstruction.</p> <p>3. Same—Notice. Notice to the chief of police of such obstruction is notice to the city.</p>

<p>1. Habeas Corpus—Warrant of Commitment must be CertaAi as to Place. A warrant of commitment must be certain and definite as to the place in which the defendant is to be confined. A warrant directing that the defendant be confined in “the calaboose or jail of El Paso county, or such other place as the city council of said city shall designate,” is bad.</p> <p>2. Same—Same—As to Payment. So of a warrant which commands that the defendant be held until the fine be paid in labor. This would negative the right to pay in money. This objection is not obviated by the words, “or until he shall have otherwise been discharged by law.”</p> <p>3. Same—Fine and Costs—Maximum. The statute limits the jurisdiction of a justice of the peace, in the imposition of fines, to the maximum sum of $300. This cannot be exceeded by adding thereto attorney fees and costs as part of the penalty.</p> <p>4. Same—Judgment should be so plain and definite that it could not be misunderstood.</p> <p>5. Same—City Ordinance—Yeas and Nays on Passage of. The statutes of Colorado require the yeas and nays to be called and recorded upon the passage and adoption of any ordinance. This provision is mandatory, and an ordinance not so passed is void, and can confer no jurisdiction on any court or tribunal for any purpose.</p>

<p> On Demurrer.) </p>

Action in damages for personal injury to plaintiff while on defendant’s cars as a passenger. The plaintiff was one of the managers of an excursion, having charge of the sale of its tickets, two-thirds of the fare being given the company, and one-third retained for the benefit of the “ Ladies Christian Temperance Union,” which organized the excursion.

<p>1. Chattel Mortgage—Growing Crops. A chattel mortgage of crops to be grown by the mortgagor on land owned or possessed by him, is valid. A certain instrument held to be a chattel mortgage.</p> <p>2. Same—Threatened Sale by Mortgagor—Injunction. A mortgagee in a chattel mortgage, in an action against the mortgagor after condition broken, praying for an injunction restraining the latter from disposing of the property, and that the amount he is entitled to recover be adjudged a lien thereon, and for-such other or further relief as may be just, etc., is not entitled to temporary injunction to restrain a threatened sale of the property, because he has an adequate remedy by replevin.</p> <p>3. Practice—Relief—Prayer in Complaint. A plaintiff can not, if there be no answer, have more than the specific relief prayed for in the complaint.</p>

<p> (From the American Law Register.) </p>