Volume 40 — Colorado Reports

Hon. Samuel L. Carpenter, Judge. Action by A. R. Gumaer, as trustee for E. L. Gumaer, against Tbe Cripple Creek Tunnel, Transportation & Mining Company and Jacob Wallace. From a judgment for defendants, plaintiff appeals, and defendants assign cross-errors.

<p>1. Attorney and Client — Duties and Liabilities of Attorney.</p> <p>The highest degree of fairness and good faith is required from an attorney, and the courts will closely scrutinize the dealings between attorneys and their clients, and will relieve the latter from any undue consequences resulting from them whenever the good faith of the contract does not clearly appear. — P. 23.</p> <p>2. Same — Evidence.</p> <p>In an action hy a‘client against her attorneys on the ground that they had wrongfully withheld certain moneys collected hy them on a compromise judgment, evidence reviewed, and held that the client had freely and voluntarily consented to the compromise. — P. 24.</p> <p>3. Practice in Civil Actions — Case Rested — Offer of Additional Evidence.</p> <p>Plaintiff first called the defendants as her witnesses, for cross-examination, hut did not testify herself. After defendants had offered all of their testimony, she rested her case; hut, while the court was announcing the judgment and commenting on plaintiff’s failure to contradict the evidence of defendants, she offered to testify in her own hehalf. Held, that there was no error in refusing to allow her to do so. — P. 25.</p>

<p>Practice in Civil Actions — Contracts—Building—Specifications— Extra Work — Evidence.</p> <p>The specifications in a building contract provided that the foundations were to go to solid ground, that the cellars were to be seven feet high from the cement floor and that the ground removed from the excavation was to be graded around the houses. In an action for extras above the requirements of the contract, one of the plaintiffs admitted that the words “foundations to go to solid ground” were inserted at request of defendant over the protest of plaintiffs, but afterwards agreed to, and that it was known to both parties that the site, in part, was “made” ground. Held, that testimony to show the necessity of excavating more than seven feet in order to secure a solid foundation on account of the character of the ground, of using more brick in the foundation, of removing an increased amount of earth and rubbish, and of filling in with sand and gravel, was not admissible, since such work was covered by the specifications of the contract; but, It being shown that defendant requested the removal of certain rubbish from the premises, plaintiffs were-entitled to show and recover the reasonable value thereof, since such request makes defendant liable on an implied promise to pay. — P. 29.</p>

<p>Landlord'and Tenant — Improvements by Tenant — Fixtures—Removal During Term.</p> <p>A tenant holding over a few days after the expiration of his lease, under an agreement that he might do so upon payment of rent, was prevented by the landlord from removing a large single door which he had substituted for two small ones without architectural alterations being made, with the intention of replacing the small doors before the. expiration of his lease. Held', that he was entitled to recover from the landlord the reasonable value of the large door. — P. 36.</p>

<p>1. Injunctions — Relief from Judgment — In Replevin.</p> <p>In an action to enjoin execution of a judgment in replevin and to compel an acceptance of a portion of the replevined property, it appeared that the defendant recovered judgment, which was not appealed from, for the return of certain horses and damages for their detention, and, in the alternative, for the value of the' horses. ( Thereafter plaintiff offered to return a portion of the horses in pro tanto satisfaction of the judgment, which offer defendant refused. Held, that, in the absence of a showing that the replevin judgment was obtained through fraud, accident or mistake, or that plaintiff cannot obtain the relief sought in the original proceeding, or that he cannot have such suit reviewed by appeal or error, he is not entitled to such relief in equity. — P. 40.</p> <p>2. Same — Inability to Return Replevined Property.</p> <p>Where judgment has been rendered in replevin against the plaintiff for the return of the property and damages for its detention, or for the value, an allegation of the complaint, in an action to compel defendant to accept a portion of the property in pro tanto satisfaction of the judgment, that plaintiff’s inability to return all the property arosp from and was caused by defendant’s acts, is insufficient to confer equity jurisdiction. —P. 40.</p> <p>3. Replevin — Judgment against Plaintiff — Redelivery • of Property and Damages — Form of Judgment — Statutory Construction.</p> <p>A judgment in replevin against the plaintiff for the return of the property and damages for its detention, or in the alternative for its value, cannot be' satisfied pro tanto by a'return of a portion of the property, since the Colorado statute requires the return of the entire property in like condition as when taken, or judgment for its full value; nor does such a statute require the verdict or judgment to state the separate value of each article, but only the aggregate value. — P. 40.</p>

Ron. Booth M. Malone, Judge. • Action by John B. Hindry against tbe city and county of Denver. From a judgment for plaintiff on bis first cause of action, defendant appeals, and plaintiff assigns cross-errors on a nonsuit of two other causes of action.

<p>1. Principal and Surety — Bond'—Construction—Breach of Contract — Notice to Surety — Sufficiency.</p> <p>A building contract provided for the completion of the' building on a .certain day, and further provided for $2.00 per day as liquidated damages for failure to complete within such time. A surety bond was given for the faithful performance of such contract, and required the obligee to give immediate notice of the contractor’s failure, neglect or refusal to do or perform any matter or thing “at the time specified.” Held, that the day upon which the building was to be completed was the time' specified for the completion of the contract, and the' obligee was not required to anticipate the, possible default of the contractor and notify the company before such date, especially as the contract stipulated for liquidated damages if not completed at such time. — P. 56.</p> <p>2. Same.</p> <p>4 bond was given to secure the performance of a building contract, whereby the contractor agreed to furnish certain material and complete certain work for plaintiff by November 17th. The bond required plaintiff to give the bonding company immediate notice of the failure, neglect, or refusal of the contractor to do or perform any matter or thing at the time specified. Held, that a notice of the contractor’s failure' to perform the contract, sent on November 21st and received by the bonding company on November 24th, was a sufficient compliance with its terms. — P. 57.</p> <p>3. Same.</p> <p>One of the conditions, of a surety bond, given to secure the performance of a building contract, required that notice of the contractor’s -failure to perform- the contract should be given in writing, by registered letter prepaid, addressed to the bonding company at its principal office in New York City, and further provided that notice to any agent of the company should not be considered notice to.the company. Held, that a notice sent by its agent at the request of the obligee, and duly received by it, was sufficient. — P. 57.</p> <p>4. Principal and Surety — Surety Bond — Breach of Contract— Measure of Damages.</p> <p>In an action on a surety bond, given for the faithful performance of a building contract, the measure of damages for the breach of contract is the difference between the amount paid to the contractor and the value of the improvements placed upon the property by him. — P. 60. , .</p>

<p> Error to the District Court of the City and County of Denver. </p> <p> Hon. Frank T. Johnson, Judge. </p> <p>Action by Mary B. Sexton against The National Life Insurance Company, a Vermont corporation. From a judgment for defendant, plaintiff brings error.</p>

Appeal from the District Court of Boulder County. Hon. Christian A. Bennett, Judge. Action by McLane Smith against . Della M. Butsch. From a judgment for plaintiff, defendant appeals, and plaintiff assigns cross-errors.

Hon. John T. Shumate, Judge. Proceedings by Sylvester Wilmoth and Arthur D. Reynolds to change the point of diversion of certain water priorities in which Jennie Roberson filed a protest. From a decree for petitioners, the protestant brings error.

<p>1. Practice in Civil Actions — Malicious Prosecution — Justification — Necessary Elements.</p> <p>In order to justify an action for malicious prosecution, it must be shown, not only that there was a lack of probable cause for the prosecution, but that it was instigated maliciously. — P. 81.</p> <p>2. Same — Defenses—Advice of Counsel.</p> <p>In. an action against the state board of medical examiners for malicious prosecution of plaintiff for practicing medicine without a state license, the evidence showed that' plaintiff was practicing osteopathy, and that the board believed the practice of osteopathy to he the practice of medicine within the meaning of the statute, and S0‘ instructed its secretary to ask the advice of the district attorney, which was done, and in addition other reputable attorneys were consulted, and the reports of decided cases from other states were read by him. Each of the' attorneys advised him that plaintiff was violating the statute, and, after laying all the facts fairly and fully before the deputy district attorney, the latter filed an information against plaintiff based upon an affidavit made by the secretary. The information was quashed by the district court upon motion, upon the ground that the practice of osteopathy was not in violation of the statute. Held, that after having taken such advice, the secretary was justified in instituting the prosecution, and the board cannot be held responsible to the plaintiff for damages because the district attorney and the trial court disagreed as to the law. — P. 83.</p>

Hon. Kent L. Eldred, Judge. Action by George W. Kelso against The Denver & Rio Grande Railroad Company. From a judgment in favor of plaintiff, on appeal from a justice’s judgment for the same party, defendant appeals.

Hon. Louis W. Cunningham, Judge. Mandamus by Tbe Magna Cbarta Mining & Milling Company to compel C. A. Pollen, as county treasurer of El Paso county, to issue a certificate of redemption from a tax sale. Prom a judgment for plaintiff, defendant brings error.

Eon. Samuel L. Carpenter, Judge. Action by Bradley, Alderson & Co., a corporation, against Tlie Plattner Implement Company, a corporation. From a judgment for plaintiff on appeal from a judgment for defendant in tlie county court, defendant appeals.

Eon. Theron Stevens, Judge. Action, by Samnel Turbutt against Geo. L. Jacobson, John S. Mooney, Mary Mooney, Henry J. Aldricb and William H. Whitehead, and after the death of plaintiff, a complaint in the nature of a bill of revivor and supplement was filed, and Lavinia F. Barlow was added as a party defendant, and Alexander C. Hitzler, as administrator with the will annexed of the estate of Samuel Turbutt, was substituted as plaintiff.

Hon. John T. Shumate, Judge-. Contempt proceedings by tire people on the relation of Alvin M. Soule, -water commissioner of water district No. 45, against Albert W. Roberson. Prom a judgment against defendant, be brings error.

<p>Damages — Pleading—Defect—Going to Trial Without Objection —Waiver.</p> <p>In an action for damages, plaintiff alleged that he was pushed off a moving train, fell on his side and hurt and bruised his hip, which became very sore and painful, causing him to lose sleep for six days and nights and to be lame and disabled from performing physical labor for ten days; that his time was worth $8 a day, and that he expended $4 for medical treatment on account of such injuries; prayed for $5,000 damages and costs, and received a- judgment for $234. Held, that, although the code requires the plaintiff to set forth the amount of damages sustained, by going to trial without objection thereto the defendant waived this right, and on appeal the complaint will be deemed sufficient to support the verdict. — P. 127.</p>

<p>1. Appellate Practice — Findings on Conflicting Evidence — Not Disturbed on Appeal.</p> <p>The findings of a trial judge, who saw the witnesses and heard them testify, based on conflicting evidence, will not be disturbed on appeal. — P. 132.</p> <p>2. Water Rights — Water from Mines — Appropriation—Statutory Construction.</p> <p>One who conducts water from mines into a natural stream with the intent to appropriate it for irrigation purposes, and who actually makes the first appropriation thereof, is entitled to such water under § 3177, Mills’ Ann. Stats., providing that water flowing from any mine into a natural channel may be taken and used the same as that of natural water courses. — P. 133.</p> <p>3. Same — Initiation of Rights.</p> <p>Where it becomes necessary from time to time to construct new tunnels, each lower than the former, in order to drain mines, and a person appropriated the water obtained from the first tunnel for irrigation so long as it flowed, and continued to attempt to- likewise utilize that from the succeeding tunnels, such person’s appropriation dates back to the time of the first appropriation. — P. 134.</p>

City and County of Denver. Hon. Samuel L. Carpenter, Judge. Bussell Sage was convicted on an information charging him with uttering and passing a. forged check on another, with intent to damage, prejudice, and defraud him, and he brings error.

Hon. P. L. Palmer, Judge. Action by Warwick Downing • against Richard P. Ernst. From a judgment of the district court for defendant, on appeal by him from a judgment of the county court for plaintiff, plaintiff appeals.

Hon. P. L. Palmer, Judge. Leonard Imboden and James A. Hill were convicted of conspiracy to embezzle funds and property of the Denver Savings Bank, and they bring error. Decision en banc.

Appeal from the District Coiort of El Paso County. Eon. Louis W. Cunningham, Judge. Action by Robert Davis against A. O. Downs, Charles F. Potter, and The Chimborazo Mining-Company, in which William A. Knox intervened. From a judgment for defendants, plaintiff and intervenor appeal.

<p>1. Appellate Practice — Verdict — Evidence—Materiality of Instructions.</p> <p>In an action against a railroad company for injuries to a switchman, the jury found that the proximate cause of the injuries was the combined effect of a failure to block the frogs and guard-rails, and the engineer’s negligence. Held, that, since neither cause operating alone was the proximate cause of the injuries, the correctness of the court’s instructions in submitting each alleged act of negligence was material.- — P. 199.</p> <p>2. Master and Servant — Assumption of Risk — Frog-Blocking Act — Statutory Construction.</p> <p>Chapter 69, Sess. Laws 1897, requires all railroad frogs and guard-rails to be properly blocked; and provides that, in case of personal injuries to employees resulting from the company’s failure so to do, proof of such failure shall be prima facie evidence of negligence. Held, that such act confers no new right on the employee, and does not affect the common-law rule of assumption of risk. — P. 200.</p>

<p>1. Corporations — Foreign Corporations — Designation of Agent for Service of Process — Service on Other Agent — Statutory. Construction.</p> <p>Colo, const., § 10, art. 15, provides that no foreign corporation shall do any business in this state -without having an authorized agent in the state upon whom process may be served; Mills5 Ann. Stats., § 499, provides that foreign corporations shall, before they are permitted to do business in the state, file a certificate with the secretary of state designating an authorized agent in this state residing at its principal place of business upon whom process may be served; and Mills’ Ann. Code, § 38, subd. 9, provides that, in an action against a foreign corporation doing business in the state, the summons may be served by delivering a copy to any agent of the. corporation found in the county in which the action is brought. Held, that the above provisions of the constitution and statute do not limit the service of process upon the agent designated in the certificate filed with the secretary of state, but it may be served upon any other agent contemplated by the provisions of the code; — P. 220.</p> <p>2. Court of Appeals Opinion Modified.</p> <p>That portion of' the opinion in Venner v. Denver Union Water Co., 15 Colo. App. 495, holding that service cannot be made upon the vice-president of a foreign corporation, nor upon a stockholder unless it is shown that no agent is within the county, is overruled. — P. 223.</p> <p>3. Corporations — Foreign Corporations — Presumptions.</p> <p>Mills’ Ann. Code, § 38, suhd. 9, provides that service of process can be made upon “any agent” of a foreign corporation. Held, that service made upon the president or vice-president, the return so stating, is sufficient, though the return does not state that service was made upon either in the capacity of agent, since each is an agent of the company, and the return therefore carries with it the information by implication that service was made upon an agent thereof. — P. 223.</p> <p>4. Corporations — Officers — Resignation — Necessity of Acceptance — Service of Process — Estoppel.</p> <p>Where an officer of a corporation tendered his resignation, but it was never acted upon, and he continued in control of the affairs of the company, attended meetings of the board of directors, acted as a director, and was recognized as such by his co-directors, and parties bringing an action against the company, and causing a service of summons to be had upon him, had no knowledge of his resignation, the company will not be permitted to claim that he had resigned prior to the service of process upon him. — P. 224.</p> <p>5. Same.</p> <p>Where the articles of incorporation of a company provide that its directors shall hold office until their successors are elected, and the company fails to elect a successor to a director who has tendered his resignation, the latter must he treated in actions against the company, in so far as service of process is concerned, as its duly constituted agent. — P. 226.</p> <p>6. Same — Officer Appointed Receiver — Effect on Relationship to ' Company.</p> <p>The fact that an officer of a corporation is appointed its receiver does not terminate his relationship to the company as an officer, and, in an action against the company, service of process can be had upon him in that capacity. — P. 226.</p> <p>7. Same — Foreign Corporations.</p> <p>In accordance with Mills’ Ann. Code, § 38, subd. 9, providing that service in an action against a foreign corppration engaged in business within this state may he had upon any agent of the corporation found in the county in which the action is brought, service of process, in an action relating to its corporate property, against a foreign corporation doing business in this state, but in the hands of a receiver, is legally sufficient when made on an officer of the corporation whose residence is in another state, and who is at the time of service temporarily in this state on business not connected with the corporation; and the fact that such officer invited such service would be pertinent in determining the validity thereof. — P. 228.</p> <p>8. Practice in Civil Cases — Corporations—Foreign Corporations ■ — Appointment of Receiver in a Foreign State — Effect on Pending Action.</p> <p>Where an action has been brought in this state against a foreign corporation doing business herein, the appointment of a receiver for such corporation in another state does not abate the action brought in this state, nor affect it in any manner. — P. 230.</p> <p>9. Same — Subsequent Actions.</p> <p>Where the court in another state grants an injunction and appoints a receiver in an action against a foreign corporation doing business in this state, but does not dissolve the corporation, an action against it can be maintained here after such proceeding has been commenced there as well as before. — P. 231.</p> <p>10. Same — Failure to Make Receiver Party.</p> <p>The fact that the receiver of a foreign corporation appointed in another state was not made a party to an action brought against the corporation in this state, does not make the judgment rendered against it a nullity. — P. 231.</p> <p>11. Judgments — Equity Proceedings — Error in Decree — How Reviewed.</p> <p>In a foreclosure proceeding, error committed by the court by including in the decree property which was not described in the mortgage or complaint, can only be reviewed on appeal or writ of error, and not in a suit to annul such decree on the ground of lack of jurisdiction. — P. 232.</p> <p>12. Same — Final Judgment — Amendment.</p> <p>In a foreclosure proceeding, a decree which provided for the appointment of a commissioner, a sale of the premises, and a report by the commissioner of his doings under the order, is not a final judgment, and the trial court has power to amend it after the adjournment of the term at which it is entered. — P. 233.</p> <p>13. Same — Appointment of Commissioner Other Than Sheriff to Sell.</p> <p>Although a court may have no right to appoint a commissioner other than the sheriff to make a foreclosure sale, if no steps are taken to secure a reversal of such decree, the commissioner’s deed conveys the title of the party against whom the decree was rendered, unaffected hy such error. — P. 23.4.</p> <p>14. Appellate Practice — Practice in Civil Actions — Waiver — Raising Question for First Time on Appeal.</p> <p>Where parties treat allegations in their complaint as though controverted, hy introducing evidence to prove them, they thereby waive the insufficiency of the answer in denying them, and they cannot raise the point for the first time on appeal that there was no issue to try. — P. 234.</p> <p>15. Judgments — Setting Aside — Grounds — Matters Not Constituting Defense to Original Actions.</p> <p>The fact that certain suits against the corporation were instigated by its officers with ulterior motives, is no defense in a proceeding to foreclose mortgages against it; nor can such fact be made the basis of an action to set such proceeding aside after judgment. — P. 238.</p> <p>16. Same — Fraud—Meritorious Defense.</p> <p>To entitle a person to relief against a decree on the ground of fraud, it must appear that he had a defense on the merits to the case in which the decree was rendered, and that he was prevented from interposing such defense by the fraud of the prevailing party without fault on his part. — P. 238.</p> <p>17. Same.</p> <p>In an action to set aside a decree for fraud, it must appear that the prevailing party in the suit in which such decree was rendered contrived by fraud to keep the plaintiff and the court in ignorance of the real facts, whereby a wrong conclusion was reached and positive injury done to the party complaining, without neglect or inattention on his part. — P. 238.</p> <p>18. Foreclosure Sales — Contracts — Preventing Competition'— Illegality.</p> <p>An agreement by a prospective purchaser of property at a foreclosure sale to sell the property to the third person in the event that the prospective purchaser becomes an actual purchaser, is not illegal unless intended to prevent competition and to sacrifice the property to be sold. — P. 240.</p> <p>19. Same — Agreement to Make Joint Purchase.</p> <p>The fact that an agreement to make a joint purchase at a foreclosure sale may indirectly operate to prevent the parties thereto from bidding, is not enough to render the transaction unlawful; but to have that effect it must appear that the object of the agreement is to avoid competition. — P. 241.</p> <p>20. Practice in Civil Actions — Pleading—Cross-Bills—Receivers —Capacity to Sue and Be Sued.</p> <p>Where a receiver is made a defendant in an action by leave of court, he is in the same position as any other litigant, and the other parties to the action entitled to affirmative relief have a right to seek it by filing cross-bills against him; nor is it necessary for the parties filing the cross-bills to procure from the court appointing the receiver an order for leave to file. — P. 243.</p> <p>21. Same.</p> <p>Section 222, Mills’ Ann. Code, provides that judgment may be given for or against one or more of several defendants, and, when the justice of the case requires it, the ultimate rights of the parties on each side, as between themselves, may be determined. Held, that it is proper, when a receiver is a party, for the trial court to determine the ultimate rights of all the parties to the action in the subject-matter in controversy, and to thus put an end to litigation between them over questions properly involved. — P. 244.</p> <p>22. Equity Proceedings — Pleading—Time for Filing Cross-Bill— Discretion of Court — Appellate Practice.</p> <p>The time within which a cross-bill may be filed is within the sound discretion of the court; and, unless it affirmatively appears that the party against whom it was filed was prejudiced by the reason of its being filed when it was, the ruling of the court will not be disturbed on appeal.' — P. 245.</p> <p>23. Appellate Practice — Action to Set Aside Decrees on Ground of Fraud — Evidence Reviewed.</p> <p>The evidence examined in an action to set aside decrees obtained in a foreclosure proceeding on the alleged ground of fraud, and held not to show fraud in procuring such decrees. —P. 246.</p>

<p>1. Water Rights — Priorities—Loan of Water — Vested Rights— Statutory Construction — Constitutional Law.</p> <p>3 Mills’ (Rev.) Stats., § 2273c, provides that the owners of irrigation ditches and water rights taking water from the same stream may exchange with and loan to each other, for a limited time, water to which each may be entitled, for the purpose of saving crops, etc. Held, that such provision only permits an exchange or loan of water under conditions which do not injuriously affect the vested rights of other appropriators, and therefore is not in violation of § 6, art. 16, Colo, const., declaring that the right to divert the unappropriated water of any natural stream for beneficial uses shall never be denied, and that priority of appropriation shall give the better right as between those using water for the same purpose, etc. — P. 249.</p> <p>2. Water Rights — Loaning Water — Injunction—Complaint—Sufficiency.</p> <p>3 Mills’ (Rev.) Stats., § 2273c, provides that the owners of irrigation ditches and water rights taking water from the same stream .may exchange with and loan to each other, for a limited time, water, to which each may be entitled, for the purpose of saving crops, etc. Held, that a complaint is fatally defective in an action to restrain defendants from interfering with plaintiff using water loaned to him by other appropriators, which fails to allege that the water so loaned can and will he used hy plaintiff without impairing the vested rights of defendants owning later priorities. — P. 251.</p>

<p> Error to the District Court of Lake County. </p> <p> Hon. Peter L. Palmer, Judge. </p> <p>Action by Max Ballin against Richard Hafey and Mollie Hafey. To review an order, defendants bring error.</p>

Appeals from the District Court of Clear Creek County. Eon. Frank W. Owers, Judge.

Hon. J. Maek Mills, Judge. Charles Fay was convicted of willfully and unlawfully keeping and maintaining a disorderly house in violation of an ordinance of the city of Ft. Collins, and he appeals.

<p> Appeal from the District Court of San Miguel County, </p> <p> lion. Theron Stevens, Judge. </p> <p>Action by F. A. Olsson against Tbe Western Union Telegraph Company. From a judgment for plaintiff, the telegraph company appeals.</p>

<p>. Pleading — Complaint—Demurrer—Insufficiency.</p> <p>' While the method of pleading several distinct causes of actions separately. in substantially the same form in one complaint, and each resembling the common-law common count in assumpsit, can hardly be commended, yet it is a sufficient compliance with our code, and cannot be demurred to on the grounds of insufficiency and ambiguity.- — P. 270.</p>

Appeal from the County Court of Larimer County. Hon. J. Mach Mills, Judge. James O. Mossman was convicted of keeping a disorderly house, contrary to an ordinance of the city of Ft. Collins, and he appeals.

<p>1. Chattel Mortgages — Animals—Description—Sufficiency.</p> <p>The description of a horse in a chattel mortgage as “One gray horse, 5 yrs. old, branded with Sterling’s brand,” the animal being plainly branded, is sufficient. — P. 278.</p> <p>2. Same — Rule as to Description — Subsequent Incumbrancers— Duty of Making Inquiry.</p> <p>As against third persons, the chattel mortgage must point out the subject-matter so that the third person may identify the property covered by the aid of such inquiries as the instrument itself suggests; and every inquiry which the instrument itself could reasonably suggest, must be made by a subsequent incumbrancer. — P. 279.</p> <p>3. Replevin — Fraudulent Conveyances — Sales—Change of Possession — Who May Attack.</p> <p>In an action of replevin for property claimed by plaintiff under a sale to him by a third person, defendant, who is neither a creditor of nor a subsequent purchaser from such third person, cannot attack the validity of the transfer of the property between such third person'and plaintiff on the ground of no actual change of possession. — P. 280.</p> <p>4. Replevin — Necessity of Demand.</p> <p>In an action of replevin, a demand is only required when it is necessary to terminate the defendant’s right of possession which had theretofore been lawful, and confer the right of possession on the plaintiff; and one is not required when the possession of the defendant was wrongfully acquired, or where the plaintiff’s right of possession has been wrongfully invaded by him. — P. 280.</p> <p>5. Appellate Practice — Replevin—Form of Judgment — Conformity to Code — No Objection Below.</p> <p>In an action of replevin, where no objection was made in the lower court that the judgment was not in conformity with § 227 of the code, such objection will not be considered on appeal. —P. 280.</p>

<p>1. Cities and Towns — improvement Districts in Absence of Statutory Regulations.</p> <p>In the absence of statutory regulations, the municipal authorities are vested, with discretion in laying out a district within which local public improvements shall be made. — P. 285.-</p> <p>2. Sam e — O rd i n an ces — N oti ce — Suffici en cy.</p> <p>A notice addressed to “The property owners in West Denver Sidewalk District No. 6,” in which the district was described with reference to streets, is sufficient to advise all persons owning lots within the territory thereby described of the proceedings involved, and is sufficient under an ordinance requiring a notice to owners who have not paid for sidewalk construction. — P. 286.</p> <p>3. Cities and Towns — Charter Provisions — Ordinances—Notice for Hearing Objections — Validity.</p> <p>The provision of a city charter, providing that owners of lots should receive notice of hearings for complaints against assessments for the construction of adjacent sidewalks, is not invalid because it does not specify the tribunal or the time or place for hearing such complaints before the assessment becomes final, since power is given the city authorities to make such provision by ordinance, which is sufficient; nor'is an ordinance thereunder invalid which does not specify the time and place where objections filed will be heard and determined, since it contemplates a hearing and names the tribunal to hear them; nor is the charter or ordinance invalid because neither specifies the amount of the assessments, since, having provided for a hearing with respect thereto, it logically follows that the tribunal designated shall hear and determine all competent questions going to the validity or amount of such assessments. — P. 286.</p> <p>4. Appellate Practice — Cities and Towns — Improvement Assessments — Objections Not Raised Below.</p> <p>Where the owner of lots assessed for improvements failed to appear and make objections to such assessments in the special forum provided by law for that purpose, he cannot be heard on such objections in any other forum. — P. 287.</p> <p>5. Cities and Towns — Ordinances — Special Assessments — Amendments — Shortening Time for Filing Objections— Validity.</p> <p>Where a city charter does not specify the timé within which objections may be filed to special assessments, but leaves the matter entirely with the city authorities, an amendatory ordinance shortening the time within which such objections may be filed is not invalid, as such change is only of procedure and does not divest the property owner of any vested right. — P. 287.</p> <p>6. Same — Publication of Ordinance on Sunday.</p> <p>The publication of an ordinance in relation to special assessments for sidewalk construction is not invalid because published on Sunday. — P. 288.</p> <p>7. .Cities and Towns — Excessive Assessments — Tender of Valid Amount.</p> <p>Where the excess in an alleged excessive assessment is susceptible of mathematical calculation, before the property owner can take advantage thereof, he must pay or tender the amount which is valid. — P. 288.</p>

<p>Practice in Civil Actions — Foreign Corporations — Bond for Costs ■ — Failure to Give — Statutory Construction — Waiver—Appellate Practice — Question Not Raised Below.</p> <p>Section 675, Mills’ Ann. 'Stats., provides that if any action shall be commenced by a foreign corporation without filing' a bond for costs, upon the motion of defendant or any officer of the court, the court shall require such bond to be given by a certain day, and, upon failure so to do, the court, on motion, shall dismiss the suit. Held, that no motion for a cost bond having been 'made in the trial court, the defendant thereby waived his right thereto; and that the question cannot be raised for the first time on appeal. — P. 290.</p>

<p>1. Water Rights — Irrigation Companies — Transfer of Stock— Trust Deed Operating as Chattel Mortgage — Validity.</p> <p>Even, though a deed of trust conveying stock in an irrigation company should operate as a chattel mortgage and should not be foreclosed within five years, still it would be good as between the parties, and the company could not question its validity without showing that it was in some way injured or prejudiced. — P. 295.</p> <p>2. Same — Transfer of Stock to Trustee.</p> <p>Stock in an irrigation company was transferred to a trustee under a trust deed, and by him surrendered to the company in exchange for a new certificate issued to him as trustee. The deed was foreclosed and the stock sold at trustee’s sale, and later another trust deed was given to secure the payment of the purchase price, in which the same person was named as trustee. Held, that no further transfer on the books of the company was necessary to entitle the purchaser to the rights of a stockholder. — P. 295.</p> <p>3. Pleading — Title to Corporate Stock — Proof—Variance.</p> <p>Where, in an action to compel an irrigation company to deliver water to an alleged stockholder, the ultimate fact in issue was the title to the stock, any variance between the pleading and the proof as to the means by which the title was acquired is immaterial. — P. 296.</p> <p>4. Water Rights — Irrigation . Cbmpanies — Shares of Stock— Transfer by Deed — Connecting Ditches — Rights of Stockholders.</p> <p>An irrigation company owned the main ditch and a water right, and another company owned an extension thereof in which only its own stockholders were entitled to “carry” water. The land of one owning stock in both companies was sold under a trust deed and with it, in express terms, the stock of the company ■ owning the main ditch. Held, that the purchaser obtained no rights in the extension ditch by the additional clause in the deed “together with all the rights to the use of water for irrigating said premises and for domestic use thereon to which the party of the first part or the premises hereby conveyed are now or may hereafter become entitled,” since such right depended upon the ownership of the stock thereof which still remained in the name of the original owner. — P. 297.</p> <p>5. . Same — Equitable Relief — Necessary Parties.</p> <p>The land of an owner of stock in an irrigating ditch company was sold under a trust deed, which the purchaser claimed included the interest in the ditch, hut the stock was not transferred and remained in the possession of a third person. Held, that, in an action against the ditch company by the purchaser of the land to enforce his alleged rights in the ditch, the original owner and the third person were necessary parties. — P. 297.</p>

Appeal from the District Coitrt of the City and County of Denver. Hon. John I. Mullins-, Judge. Action by Eugene L. Brewer against David D. Seerie, sheriff of Arapahoe connty, and The McCormick Harvesting Machine Company. From a judgment for plaintiff, defendants appeal.

<p>1. Action on Account — Interest—Statutory Construction.</p> <p>Where, in an action on account, it is shown that according to custom the goods sold and delivered each month become due on the first day of the succeeding month, such date fixes the time from which interest can be computed in accordance with Mills’ Ann. Stats., § 2252, allowing interest to creditors, when there is no agreement as to the rate thereof, at the rate of eight per cent, per annum on money due on account from the date when the same “became due.” — P. 304.</p> <p>2. Appellate Practice — Frivolous Appeal — Penalty.</p> <p>Where it appears from a perusal of the record that an appeal is taken solely for delay and is frivolous and entirely without merit, a penalty should be imposed. — P. 3Ó5.</p>

<p> Error to the County Court of the City and County of Denver.' </p> <p> Hon. Ben B. Lindsey, Judge. </p> <p>Action by Thomas P. Stephens against Mary M. Moore. The action was dismissed/ and plaintiff brings error.</p>

Hon. F. T. Johnson, and Hon. John I. Mullins, Judges. Action by Moses Hallett against the board of county commissioners of Arapahoe county, Willard L. Ames,- as assessor, and Mortimer Wheeler, as treasurer, of said county. From a. judgment in favor of defendants in three of the actions, plaintiff appeals, and, from a judgment in favor of plaintiff in one of them, defendants appeal. Decision en banc.

<p> Appeal from the, District Court of the City and County of Denver. </p> <p> Hon. P. L. Palmer, Judge. </p> <p>Action by Andrew Whitehead and Edwin K. Whitehead against W. S. Montgomery, A. D. Craigue, Eugene McCarthy, W. A. Otis & Co. and Frank E.- Castello. From a judgment in favor of plaintiffs, defendants appeal.</p>

<p> Appeal from the County Court of Arapahoe County. Eon. Ben B. Lindsey, Judge. </p> <p>Action by Eliza Quinn against A. J. Elliott and Thomas Moore. From-a judgment for-plaintiff, defendants appeal.</p>

Hon. N. Walter Dixon, Judge. E. B. Hobson filed in tbe county court a claim for allowance against tbe estate of George H. Hob-son, deceased, and Sella J. Hobson, tbe widow, in ber own bebalf and as guardian of a minor child of decedent, filed objections thereto. Tbe entire proceeding was later transferred to tbe district court on account of disqualification of tbe county judge. From a judgment disallowing tbe claim, claimant appeals.

Son. Ben B. Lindsey, Judge. Two separate actions by Henry M. Porter against A. MacKenzie. Prom a judgment for plaintiff in each case, defendant appeals. Consolidated for hearing in this court.

Appeal from the District Court of the City and County of Denver. Hon. Booth M. Malone, Judge. Action by Freedom Sprague and Frank N. Sprague against The National Fire Insurance Company to recover on an insurance policy. From a judgment for plaintiffs, defendant appeals.

<p> Error to the District Court of the City and County of Denver. </p> <p> Eon. F. T. Johnson, Judge. </p> <p>Action by Julia Park against William S. Park, Martha Park and Elizabeth Park. From a. judgment in favor of defendants, plaintiff brings error.</p>

<p>1. Intoxicating Liquors — Sunday Observance — Statutory Construction — Prima Facie Evidence.</p> <p>Section 1346d, 3 Mulls’ (Rev.) Stats., provides that saloons shall be closed on Sunday, that during such times no liquors shall be sold or given away, that no person not employed in the business shall be permitted to -remain in or about such place, and that, if it appear that a person not so employed be permitted to remain in the saloon, such fact shall be prima facie evidence of the guilt of the accused party. Held, that such fact is prima facie evidence of the guilt of the accused of the violation of any and all of the above provisions of the statute. — P. 364.</p> <p>2. Same — Instructions.</p> <p>In a prosecution under 3 Mills’ (Rev.) Stats., § 1346d, for keeping a saloon open on Sunday, an instruction, “that the court instructs the jury that if it shall appear from the evidence that a person or persons not employed in and about the saloon was permitted to. remain in the saloon, such fact is by law made prima facie evidence in favor of the guilt of the party or parties who may have permitted such persons to be in the saloon,” correctly states the law. — P. 365.</p> <p>3. Same.</p> <p>In a prosecution under 3 Mills’ (Rev.) Stats., § 1346d, an instruction is not erroneous which is to the effect that in order to constitute the offense charged it is not necessary that the saloon be kept open in the same manner as on week days, and that the law is violated if the saloon is so kept that access may be had thereto by parties not employed about the saloon, and it is not material whether the door is kept open, “or is only opened on application for admission,” since to rule that a place is not “open,” which is opened to every one who applies for admission, would be to destroy that part of the statute requiring saloons to be closed during certain hours. — P. 365.</p> <p>4. Appellate Practice — Instructions—Refusal—Assignments of Error — All Instructions Not Included in Abstract.</p> <p>Assignments of error based upon the trial court’s refusal to give certain instructions, will not be reviewed where all the instructions given are not included in the abstract. — P, 365.</p>

<p>1. Real Property — Easements—Prescription—Right of Way. .</p> <p>Where the donee of a right of way across the property of another which has been granted by parol and not by deed, has uninterruptedly used the same for more than 20 years with the knowledge, consent and acquiescence of the donor and his grantees, and has made improvements and expended money because of the grant, and would not have purchased the property to which the right of way is pertinent excepting for the granting of the same, his right to the use thereof may not be terminated by the donor or his grantees. — P. 369.</p> <p>2. Same — Width of Right of Way.</p> <p>Where, in an action to restrain defendant from interfering with plaintiff’s alleged right of way through defendant’s premises, the finding is for plaintiff, but there being no allegation in the complaint or evidence introduced as to the width of such right of way, the court cannot specify the width in the decree. — P. 371.</p> <p>3. Same — Practice in Civil Actions — Evidence.</p> <p>In an action to restrain defendant from interfering with plaintiff’s right of way over defendant’s premises, such easement having been granted by parol, it was not error to admit evidence of the price plaintiff paid his grantor for the premises to which the right of way was pertinent, or evidence in regard to the construction of his residence at the end of the road, since such evidence tended to show that plaintiff had placed himself in a position, and had expended money, which he would not have done but for the making of the grant and the acquiescence therein'by defendant. — P. 371.</p>

<p> Error to the District Court of Las Animas County. </p> <p> Hon. Jesse G. Northcutt, Judge. </p> <p>Action by Mattie Noble against John McBride. From a judgment for plaintiff, defendant brings error.</p>

Hon. Charles C. Holbrook, Judge. Isaac W. Bice was convicted of the violation of an ordinance prohibiting the sale of intoxicating liquors within the corporate limits of the town of Monte Yista, and he appeals.

<p>1. Water Rights — Priorities—Property Right — Change of Method of Use — Can Be Made When.</p> <p>A priority to the use of water is a property right which is the subject of purchase and sale, and its character and method of use may be- changed, provided such change does not injuriously affect the rights of others. — P. 385.</p> <p>2. Same — Storage—Amount.</p> <p>The owner of a priority for direct irrigation is entitled to store the amount of water, so owned by him, to be used for irrigation later in the season on crops needing water at such time; otherwise the result would be to take the owner’s rights from him and confer .them upon others growing crops of a different nature, and such a rule would make the use dependent upon the character of the crops raised instead of upon the right to utilize it in any manner which does not injuriously affect the vested rights of others. — P. 385.</p> <p>3. Same — Statutory Construction.</p> <p>Mills’ Ann. Stats., § 2270, providing that persons desiring to divert water for storage may take from any of the natural streams of the state and store any unappropriated water not needed for immediate use for domestic or irrigation purposes, does not apply to the owner of a water priority who desires to store it for use on a crop needing irrigation later in the season; and, for such later use, he is entitled to store the quantity of water, measured by volume and time, which he would be entitled to divert for- direct irrigation. — P. 387.</p> <p>4. Appellate Practice — Petition for Rehearing — Questions Considered — Estoppel.</p> <p>In an action to prevent a sole defendant from storing a water priority for use on crops needing it later in the season, the plaintiff cannot urge for the first time on an application for rehearing on appeal that a decree authorizing defendant to do so should not he entered until all the parties whose rights might he thereby affected are in court, nor is such plaintiff otherwise in position to urge such point on appeal. — P. 387.</p>

<p>1. Partnership — Right of Partner to Compensation.</p> <p>Under ordinary circumstances, and in the absence of an agreement to' that effect, one partner cannot charge his co-partners with any sum for compensation, whether in the shape of salary, commission or otherwise, for conducting the partnership business. — P. 393.</p> <p>2. Referee — Findings—Effect—Appellate Practice.</p> <p>The findings of a referee under the express provisions of Mills’ Ann. Code, § 212, after being filed with the clerk and the court entering judgment thereon, stands as the finding of the court unless objected to by either party by filing a motion for a new trial, and, on appeal, are entitled to the same consideration as the verdict of a jury, or the findings of the court based upon like evidence produced in open court. — P. 394.</p> <p>3. Appellate Practice — New Trials — Presumptions.</p> <p>In the absence of a showing to the contrary, it will be presumed on appeal that on a motion for a new trial the court examined the testimony and did every other act imposed upon it by law and practice. — P. 394.</p>

Appeal from the District Court of the City and County of Denver. Hon. Frank T. Johnson, Judge. Action by Isabel L. E. Anderson and John Pearson Anderson against Charles W. Enos and Sarah E. Enos. Prom a judgment for plaintiffs, defendants appeal.

<p>1. Chattel’ Mortgages — Sale by Mortgagor — Validity.</p> <p>A mortgagor, remaining in possession of the chattels under the terms of the mortgage, may, before default or forfeiture, sell them subject to the lien of the mortgage. — P. 405.</p> <p>2. Same — Absolute Sale Constitutes Conversion.</p> <p>A mortgagor, remaining in possession of the chattels under the terms of the mortgage, by making an absolute sale of the same works a conversion thereof, for which the mortgagee may maintain trover without demand. — P. 405.</p> <p>3. Pleading — Allegations—Facts—How Stated — Demurrer.</p> <p>A pleading should state the facts directly and positively, and not hypothetically or by way of recital, and such defects are subject to a general demurrer. — P. 406.</p> <p>4. Same — Chattel Mortgages — Conversion of Mortgaged Property — T rover — Answer—Sufficiency.</p> <p>In an action for conversion by a mortgagee against the buyer of mortgaged sheep, an answer alleging that if any of the sheep ever belonged to the mortgagor, and were intended to be included in the chattel mortgage, if any mortgage existed, the mortgagee, in permitting the mortgagor to sell and in neglecting to notify defendant of his rights, if any, under the mortgage, was barred from claiming the property against defendant, is fatally defective in failing to allege any fact positively. — P. 406.</p> <p>5. Appellate Practice — Answer Containing no Positive Allega-</p> <p>tions — Evidence to Prove — Admission Constitutes Error. Where the answer contains no positive allegation of a fact, but only by way of recital, the admission of evidence to prove such fact constitutes prejudicial error. — P. 407.</p> <p>6. Principal and Agent — Acts of Agent — Ratification by Principal — Estoppel.</p> <p>Where a sale is completed by the agent before knowledge of it reaches the principal, and no change in the condition of the parties can occur from his delay to approve or disapprove it, mere silence may be evidence of ratification, but it does not work as an estoppel. — P. 408.</p> <p>7. Same — Agent Representing Himself as Owner — Chattel Mortgages.</p> <p>Where the mortgagors, in selling mortgaged chattels, did not avowedly act as agents of the mortgagee, but rather in their own right as owners, the mortgagee could not be bound thereby on the theory of ratification of an unauthorized act of his agent. —P. 408.</p> <p>8. Chattel Mortgage — Conversion of Mortgaged Property — Evidence — Similar Acts Approved by Mortgagee. „</p> <p>In an action by the mortgagee for conversion against the buyers of mortgaged chattels, evidence that similar acts of sale of mortgaged chattels by the mortgagor had been approved by the mortgagee is inadmissible, unless accompanied by evidence that the buyers knew of such fact at the time of making the purchase; for, if they did not know of such a practice, they could not have relied upon it. — P. 408.</p> <p>9. Same — Mingling with Other Property.</p> <p>Where a mortgagor wrongfully sold and delivered mortgaged chattels to certain buyers, and they mingled them with other chattels of a similar kind, in an action against the buyers for conversion, the burden is on them to show what property was and what was not described in the mortgage. — P. 409.</p> <p>10. Same.</p> <p>Where personal property covered by a mortgage is traced into the possession of one who had constructive notice thereof, and he seeks to prove his possession to he rightful, the burden of proving such fact rests upon him; and if he seeks to do this by showing a purchase of the property from the mortgagor, acting as agent of the mortgagee, the burden is upon him to show that the mortgagor had such power, and that it was strictly followed. — P. 410.</p>

<p> Error to the District Court of Teller County. </p> <p> Hon. Wm. P. Seeds, Judge. </p> <p>Action by Thomas Lewis against Mary Schultz. From a judgment for plaintiff, defendant brings error.</p>

Eon. Samuel L. Carpenter, Judge. Charles E. Stubbs and Nehemiah H. Fitzell were each convicted of driving and using imported docked-tailed horses, and each brings error. Decision en banc.

Eon. M. 8. Bailey, Judge. Action by Lucinda Ulrich against Samuel A. Wright and James L. Morgan, copartners doing business under the firm name of Wright & Morgan. From a judgment for plaintiff, defendants appeal.

<p>Bonds — Surety Bonds — Third Parties Claiming Protection — Annulment by Principal Parties — Effect.</p> <p>The board, of education of a school district entered into a contract with a builder to erect a school building whereby the latter agreed to pay for all material and labor, and to allow no liens to be filed thereon; and a surety bond was given to insure performance, which was to become annulled on the acceptance of the building. Held, that the board haying in good faith accepted the building before one, who furnished material to a subcontractor, knew of the existence of the bond or made any claim thereunder or relied upon it, the latter could not enforce it, since the bond became functus officio as to him. — P. 445.</p>

<p>Judgments — Parties—Judgment Against One of Several Parties— When Admissible — Statutory Construction.</p> <p>In an action for a broker’s commission against several defendants, the complaint alleged that defendants, being the owners of certain mining claims, agreed with the plaintiff that, if he would procure or find a purchaser for said mining claims for a certain price, they would pay him the specified amount sued for. The proof sustained the contract in all particulars save that the liability of only one of the defendants was established, and judgment was accordingly rendered against him for the specified amount, and the action dismissed as to the others. Held, that such judgment was warranted under Mills’ Ann. Code, § 222, providing that judgment may be given for or against one or more of several plaintiffs or defendants, and § 223, providing that, in an action against several defendants, the court may, in its discretion, render judgment for or against one or more of them, allowing the action to proceed against the others, whenever a several judgment is proper. — P. 448.</p>

<p>1. Constitutional Law — General Assembly — Passage of Bills— Constitutional Requirements — Journals—Presumption.</p> <p>Section 22, art. 5, Colo, const., provides that no bill shall become a law except by a vote of a majority of all the members elected to each house, nor unless on its final passage the vote be taken by ayes and noes, and the names of those voting be entered on the journal; section 13, same article, provides that each house shall keep a journal of its proceedings; and c. 10, p. 240, Sess. Laws 1899, provides, inter alia, that the secretary of state shall certify to the correctness of the copies of the original journals so published, the certificate to be made a part of such publication, and, when printed and so certified, such publication shall be taken as prima facie evidence of the original records. Held, that where the question of the constitutional requirements being observed in the passage of a bill is at issue in a cause, the introduction of the journal, printed in accordance with the above provisions, which fails to show the entry of such votes, makes a prima facie case, and raises the presumption that there was no final passage of the bill and entry on the journal of the names of those voting aye and no. — P. 454.</p> <p>2. Same — Pleading—Evidence.</p> <p>The. question of whether the constitutional requirements were observed in the passage of a bill through either branch of the legislature, involves a finding of fact, and the party seeking to raise such question must, by pleading, present an issue and the evidence upon which he relies to support the issue. — P. 458.</p> <p>3. Same — Question of Law.</p> <p>• Whether or not an act of the legislature is a law is a judicial question to be determined by the court whenever it arises in the course of litigation, and it is not a question to be referred to some other tribunal for a decision, nor is it a question of fact to be tried by a jury. — P. 459.</p> <p>4. Same — Finding of Fact by a Subsequent Legislative Committee.</p> <p>Section 22, art. 5, Colo, const., provides that no bill shall become a law except by a vote of a majority of all the members elected to each house, nor unless, on its final passage, the vote be taken by ayes and noes, and the names of those voting be entered on the journal. In attacking a law on the ground that such requirements were not complied with, as shown by the journal introduced in evidence for that purpose, the report of a special committee contained in the journal of a subsequent legislature appointed to .investigate the cause of such missing roll-call is not competent evidence to rebut the prima facie case made by the introduction of the former journal, since to so hold would be referring the question in issue to some other tribunal than the trial court, i. e., an investigating committee of the legislature. — P. 459.</p>

<p>1. Attorn eys-at-Law — Disbarment—Grounds.</p> <p>The respondent, while district attorney, filed an information against a party on the strength of an affidavit filed with him charging a crime, but the accused was not arrested until after the expiration of respondent’s term, at which time he requested the latter to defend him. The respondent presented the entire matter to the trial court in the presence of the new district attorney, and the court entered an order authorizing him to defend the accused. Held, that, while this is a practice which should not he engaged in, in the absence of any proof that respondent made use of any information which he had secured while in the employ of the state, it does not present a case justifying disbarment. — P. 462.</p> <p>2. Same — Attorney and Client — Charges Made by Client — Burden of Proof.</p> <p>In a proceeding to disbar an attorney upon a charge made by a client, the burden is upon the latter to prove the former’s guilt; and as accusations of this kind are easily made and difficult to defend, this court will not he quick to take the naked charge as a proof of guilt, and, acting upon that, not only deprive a member of the bar of the means of making a livelihood, but disgrace him as well.- — P. 464.</p> <p>3. Attorneys-at-Law — Disbarment—Grounds.</p> <p>Respondent in a disbarment proceeding was employed by A. and S. to assist in prosecuting G-. and M., charged with arson. Later V., one of respondent’s former clients, was also charged with being implicated in the offense charged. Respondent talked with A. and S. concerning the charge, and each informed him that they did not believe V. had anything to do with the matter, and that they would have nothing to do with his prosecution; and, in addition, A. requested respondent to defend V. Respondent then informed the district attorney that he would not assist in prosecuting V., as he was an old friend and client. Before the trial, G-. escaped, whereupon S. instructed respondent that he would have nothing further to do with the matter, and for him to dismiss the whole case. Upon the arraignment of V., respondent entered his appearance for him and tendered a plea of not guilty, and, upon motion of the district attorney, the cases against M. and Y. were consolidated for trial. A few witnesses* were examined by the district attorney, but were not cross-examined, and the court directed a verdict of not guilty. The district attorney was cognizant of respondent’s entire connection with the case, and made no objection to the latter’s appearance for V. Held, that there was nothing culpable in the action of respondent, and his disbarment will be denied. — P. 465.</p>

Son. James E. Garrigues, Judge. Action by Tbe New Hampshire Real Estate Company, a corporation, against The Farmers’ High Line Canal and Reservoir Company, a corporation, to recover damages for failure to furnish water. From a judgment for plaintiff, defendant appeals.

Eon. Frank T. Johnson, Judge. Action by tbe people, on the relation of W. B. Lowry, against Julius Aichele, as county clerk and recorder of Arapahoe county, Colorado. From a judgment declaring defendant to be in contempt of court for having violated an injunction issued in the action, defendant brings error.

Hon. John I. Mullins, Judge. Action by A. E. Wilson against Albion K. Vickery, individually, and as county clerk and recorder of tlie city and county of Denver, defendant brings error from a judgment for plaintiffs.

<p> Appeal from the District Court of Siimmit County. </p> <p> Eon. Frank W. 0%vers, Judge. </p> <p>Action by Avery B. Tnbbs against D. T. Roberts. From a judgment for defendant, plaintiff appeals.</p>

<p>Appellate Practice — Court Rules — Abstract of Record — Sufficiency.</p> <p>An abstract of a transcript of record, comprising over seventy folios, which amounts to less than two printed pages, and presents nothing upon which a consideration or decision of the questions raised by the assignments of error and discussed by counsel can be predicated, is not a compliance with a rule of court requiring the abstract to contain a brief statement of the contents of each pleading, and a statement setting forth fully the points of the pleadings and evidence, and the points relied upon upon for a reversal; and for such reason, the appellate court will dismiss the case. — P. 507.</p>

Hon. Robert Kerr, Judge. Action by tbe people, on tbe relation of William H. Dickson, as attorney general, for tbe collection of an inberitance tax on tbe estate of Winfield S. Stratton, deceased. Prom a judgment fixing tbe tax, relator brings error.