Volume 45 — Colorado Reports

<p>Error to Logan District Court—Hon. H. P. Burke, Judge.</p>

<p>Appeals from Denver District Court — Hon. George W. Allen, Judge.</p>

<p>1. Sureties—Liability for Contribution—Inter Se — Each of several sureties is liable to contribute moneys paid by the other to discharge the debt for which all are obligated, unless there is a contract express or implied, for immunity. No such promise is implied from the fact that one surety ■ entered into the contract at the request of the other, nor from an assurance given at the time of the request that the party shall not be subjected to any loss.—(48, 49)</p> <p>2. Evidence—Res Gestas—Declarations of the grantor- in a deed made ten days after its execution are not res gestae.—(50)</p> <p>3. Fraud—Continued possession of lands by the grantor no evidence of fra'ud, where, after the execution of the conveyance, he-pays-rent.—(51)</p> <p>4. Right of One Surety to Avail of Indemnity Given to the Other—One of two sureties, having purchased at foreclosure sale, lands mortgaged to him by the principal debtor, as an indemnity, is liable to his co-surety for one-half the reasonable value of such lands.—(52)</p> <p>Also, he is not liable for anything in respect to such lands if subject to a prior incumbrance, until such prior incumbrance is first satisfied.—(52)</p>

<p>Appeal from Lake County Court—Hon. William H. Harrison, Judge.</p>

Robert E. Lewis, Judge. This is an appeal from a judgment rendered in favor of the appellee against appellant in a suit brought by the former to recover damages for a breach of promise of marriage. In her complaint the plaintiff alleged that on the third day of May, 1904, the defendant promised to marry her within a reasonable time, and that she, likewise, then 'and there promised to marry him.

<p>Error to Denver County Court—Hon. Ben B. Lindsey, Judge.</p>

<p>Appeal from Denver County Court—Hon. A. S. Frost, Judge. •</p>

<p>1. ■ Assignment—Approval—A home building company issued a contract with an insurance clause, providing that the holder might assign it to persons of certain qualifications, but that “notice of assignment must be given to the first parties within ten days thereof for their approval.” An acceptance of payments from the assignee, and negotiating with him as such, was held an approval of the assignment.—(75-78)</p> <p>2. Contracts — Construction—A contract issued by a home building company provided for certain monthly payments by the subscriber to the company, a portion thereof to be kept as a reserve fund to provide for future contingencies of the company, and a portion to apply on payments to be made by the company to' secure a home for the subscriber; that, when $1,000.00 had been paid by the company for the subscriber, “this contract on the part of the parties of the first part shall he fully performed.” There was also a provision that, in case of the death of the subscriber “before all advance payments made to him have been returned,” the company should pay the balance, if any, of the $1,000.00, and “cancel his indebtedness,” and convey the property, if vested in the company, to the subscriber’s wife. Held, that the latter clause was in effect an insurance on the life of the subscriber; that the payment of the $1,000.00 by the company did not terminate its liabilities; that it was under duty to cancel the subscriber’s indebtedness; that the death of the subscriber discharged the debt; and that a sale of'the home under a deed of trust given by the subscriber to secure the repayment of the $1,000.00 conveyed no title.—(78, 7.9)</p>

<p>Appeal from Deiwer District Court—Hon. John I. Mullins, Judge.</p>

<p>Appeal from Denver District Court — Hon. Frank T. Johnson, Judge.</p>

Frank W. Owers, Judge. Plaintiff’s complaint in tbis'case alleges in substance, that on the 12th day of March, 1898, one Richard A. Dixon became a member of one of tbe local conncils of The Ancient Order of tbe Pyramids at Leadville, Colorado, known as Silver State Council No. 147, after having paid tbe premium required by tbe association, having fully complied with its laws, and upon other considerations to be kept and performed by tbe said Dixon during bis lifetime.

<p>Appeal from San Miguel District Court—Hon. Theron Stevens, Judge.</p>

<p>. Appeal from Teller County Court—Hon. Thornton H. Thomas, Judge.</p>

<p>1. Appeals—Where Appeal Lies—An appeal lies from the judgment of the district court to the supreme court under § 803 Mills’ Ann. Stats., in an appeal from the order of the county commissioners, disallowing a claim.—(119)</p> <p>2. Actions—Special Proceedings—An appeal to the district court from the order of the county commissioners disallowing a claim against the county is an ordinary action.—(119)</p> <p>3. Judgment—Vacating—Modifying — Where a judgment is vacated and a different amount awarded, the latter is the final judgment, and an exception thereto entitles the aggrieved party to assign error thereon.—(120)</p> <p>4. Exceptions—- Where Necessary — An exception taken to the final judgment suffices, though none was taken to a previous award of damages, afterwards vacated.—(120)</p> <p>5. Appeals — From County Commissioners — Under Mills’ Ann.- Stats., § 803, an appeal can he taken only from a definite and certain order disallowing the claim. An order upon a claim for $300 allowing $50 “in full payment of the claim” is not of this character.—(121)</p> <p>6. Jurisdiction—Appeal—Where, upon a cause of action of which the district court has original jurisdiction, the parties go to trial in that court without objection, the defeated party will not, upon appeal, be heard to question the regularity of the- appeal by which the cause was brought to that court.—(122)</p> <p>7. Criminal Law—Allowance to Counsel of Indigent Defendant—Under Mills’ Ann. Stats., §§ 1025, 1026, only one fee is to be allowed a counsel assigned to defend several defendants in one information, not exceeding the maximum prescribed by the statute. An order of the district court allowing a sum in excess of the statutory maximum is beyond its authority.—(124)</p>

<p>1. Appeals—Questions Reviewed—A finding upon conflicting evidence will not fie disturbed.—(127)</p> <p>2. Taxes — Liability of Grantor of Lands — One conveying lands in September is liable, under § 3774 Mills’ Ann. Stats., for the. tax of the same year which matured in the year following, even though, at the date of the conveyance, the assessment had not been completed nor become a lien on the lands.—(125)</p> <p>3. Assignments—What is Assignable—A claim asserted by the grantee of lands against the grantor, for moneys paid to relieve them of taxes for which the grantor was liable, may be effectually assigned so as to give the assignee an action in his own name.—(126)</p>

<p>Appeals — Abstract — Where the abstract fails to set forth enough of the record to disclose the nature of the controversy, or the proceedings or judgment in the court below, the writ of error will be dismissed.</p>

Peter L. Parmer, Judge. These are appeals from judgments rendered in actions instituted by tbe respective appellees to restrain the appellant in each case from enforcing tbe collection of taxes levied for tbe year 1901. To tbe complaint in each case a general demurrer was interposed and overruled. Tbe defendant elected to stand by its demurrers, and judgments were rendered granting tbe relief prayed.

<p>1. Judgments—Record—Formality Required — The findings of the court are not a judgment. An entry which, after reciting a trial and a finding for the plaintiff for $125, followed hy the words "A judgment' in the sum of $125 and costs was rendered in favor of plaintiffs against defendants,” is a mere declaration of the clerk, and not a judgment.—(140)</p> <p>2. Indemnity Bond — A bond given to the sheriff reciting a levy made at the instance of the principal in the bond, conditioned to save him harmless “from all harm, trouble, damages, costs, suits, actions, judgments and executions that may, at any time, arise or be brought against him” by reason of the levy, renders the sureties liable for a judgment recovered against the sheriff by a third party, based upon the levy.—(141)</p>

<p>Error to Denver District Court—Hon. Booth M. Malone, Judge.</p>

<p>1. Pleadings — Amendment on Bringing in New Party — It seems that the order malting a stranger party to an action at law is as effective as if an amended complaint were filed. Even if, under circumstances, it would be proper to require an amended complaint, the new party, by pleading, waives the right to require it.—(158)</p> <p>2. Public Lands—Conveyance by Entryman Before Patent— The acts of Congress (Rev. Stats., §§ 2290-2296), do not prohibit one who enters land under the pre-emption law, or the homestead act, from executing a mortgage thereon in advance of the patent, or even in advance of the entry, or obtaining the receiver’s receipt, unless it appears that such mortgage was a mere device to transfer the title in evasion of the statute.—(160)</p> <p>3. Homestead—Record of—To entitle one to the benefits of the statute exempting the homestead from execution, the owner must enter the word “homestead” on the margin of the recorded title.—(161)</p> <p>4. Deed—Name of Grantor—If the name of the grantor appears in the covenants, this is sufficient.—'(162)</p> <p>5. Ejectment—Demand of Possession—The owner of lands may bring an action to recover the same from a trespasser without first demanding possession.—(162)</p> <p>6. Appeals—Harmless Error—Where substantial justice has been, accomplished, technical errors and trivial irregularities will be disregarded'.—(163)</p> <p>7. Appeals—Abstract—Where an appellant desires a review of the evidence, he must set it forth in his abstract.—(163)</p>

<p>1. Trial—Questions for the Court or Jury—When a contract is entirely in writing, the court is to construe it and determine its effect.— (165)</p> <p>2. Contracts Construed—Defendant sent plaintiff a telegram offering a weekly salary. Later he wrote: “If you will stay and can hold your position for one season, I will return you your railroad fare,” meaning plaintiff’s fare in coming from her home to the place of employment. Held, an employment by the week, terminable by either party at the end of any week.—(165)</p> <p>3. Evidence—Competency—A letter written by a former employer certifying to the plaintiffs capacity and fidelity is not admissible to establish the plaintiff’s character therein ascribed to her; being the unsworn declarations of a stranger to the record, it is not admissible for any purpose.—(167)</p>

<p>1. Principal and Agent—Liability of Principal for Agent’s Frauds—The owner of chattels is not affected by a claim of ownership set up by his agent to whom he has entrusted them, the principal having no knowledge of such claim of ownership. —(171)</p> <p>2. instructions—Not based upon evidence error.—(171)</p> <p>3. Pledge by Agent, of Principal’s Goods—The owner is not affected by an unauthorized pledge of his goods by an agent to whom he has entrusted them.—(172)</p>

<p>Error to Boulder District Court—Hon. James E. Gtarrigues, Judge.</p>

<p>Appeal from El, Paso District Court — Hon. Lewis W. Cunningi-iam, Judge.</p>

<p>1. Release—Fraud in Obtaining—A release obtained by false representations that it is a mere receipt will be set aside, though the defendant admits its execution.—(193)</p> <p>Plaintiff assailing a release for fraud practiced upon him in obtaining it, is not under duty, as a condition precedent to his action, to restore the amount paid him therefor. The jury may make allowance for this amount in their verdict.—(194)</p> <p>2. Judgment Upon the Pleadings is not to be rendered unless, upon the admissions of the answer, no other judgment is possible than that prayed in the complaint.—(194)</p> <p>3. Motion for Judgment on the Pleadings cannot take the place of a demurrer or plea.—(194)</p> <p>Such motion admits the truth of the plea, and of the opening statement of counsel, wherever such statement is invoked. —(194)</p>

<p>Contracts—Construction—The lease of a mining claim provided that the lessee should be entitled to purchase the property upon the payment of $20,000.00 within three years. A deed.executed by the lessors was deposited in escrow with a copy of the lease. At the same time, the lessees delivered to the bank a writing directing delivery of the deed on payment of $17,500.00. These papers are to be construed as one. An assignment by the lessee of his lease and option of purchase, without' any reservation, entitles the assignee to purchase the property.for $17,-500.00.—(201, 202)*</p>

<p>Appeal from El Paso District Court—Hon. F. T. Johnson, Judge.</p>

<p>1. Landlord and Tenant—Liability of Landlord—Landlord letting premises with a nuisance upon them, or any structure or thing which in use will necessarily or probably occasion injury to a stranger, is liable jointly with the tenant, if such injury occur.—(216)</p> <p>2. Nuisance — Seepage of Water — One who, by an excavation upon his own land, made even to accomplish a lawful and proper purpose, collects surface water which, gradually seeping away, injures the. land of another below him, is liable.—(216)</p> <p>3. Surface . Water—Land owner may not collect surface water in an artificial pond on his own lands and allow it to seep and percolate away to the injury of the lands of another below him.—(218)</p> <p>4. Negligence—Unforeseen Results—One who collects water in an artificial pond is bound to take notice that, if not drained, it will percolate into the adjacent lower lands.—(217)</p>

<p>Appeal from. La Plata District Court—Plon. James L. Russell, Judge.</p>

<p>Appeals—When Allowed—In proceedings under the Emi-' nent Domain act, an order or decision of the district court that petitioner is endowed with the powers of the act and may lawfully acquire by this method the- lands described, is interlocutory; an appeal lies only where the damages have been ascertained and the finding approved by the court.—(226')</p> <p>Our statute and the practice under it discourages the review of judicial proceedings piecemeal.—(227)</p>

<p>Appeal from El Paso County Court—Hon. Bobert Kerr, Judge.</p>

<p>Appeal from Saguache District Court—Hon. Charles C. Holbrook, Judge.</p>

<p>1. Evidence—Parol to Vary Writings—All previous conversations merge in the written contract finally adopted.—(243)</p> <p>2. Deceit—Party to a contract, entered into with full knowledge of its contents will not be allowed to say that he was induced to enter' therein by a previous representation, contradicted by the express terms of the contract.—(243)</p> <p>An assurance as to the amount of commissions which will accrue to the agent of an insurance company from an agency which he is solicited to accept, is a mere opinion, and, even if false, is not actionable.—(243)</p> <p>3. Contracts—Rescission — Party seeking rescission-of a contract must make his election within a reasonable time after the knowledge of the matters which entitle him to rescind; and he must be able to restore the other party to his former position, and must offer to do so.—(244)</p> <p>Where plaintiff sought the cancellation of a policy of insurance which had remained in force for a whole year, so that, if the beneficiary had-died, the insurer would have been obliged to pay the amount of the policy, it was held that compensation must be made to the company for this contingent liability.—-(244)</p> <p>Rescission cannot be awarded for the default of defendant' to pay stipulated commissions, where the plaintiff has, without excuse, refused to perform the duties required, to entitle him to such commissions—(245)</p> <p>4. Equity—Practice—The verdict of the jury is merely advisory.—(246)</p>

<p>Appeal fr.om Conejos District Court—Hon. Charles C. Holbrook, Judge.</p>

<p>1. Appeals—Former Judgment — Decree upon one issue in the cause, the judgment on an appeal from that decree does not conclude the parties as to a separate and distinct issue left undetermined in the first hearing.—(253)</p> <p>2. Questions Not Presented Below—Errors of procedure in a respect not called to" the attention of the trial court which prevented the defeated party from taking the proper steps to preserve his rights and which, if attention had been called to them, might have been then avoided, will he corrected.—(254)</p> <p>3. Practice—Stipulations of counsel, though verbal, if not denied, will he enforced.—(255)</p>

<p>Appeal from Denver County Court — Hon. Charles McCall, Judge.</p>

<p>1. Judgment—Foreign—Authentication—The record of the judgment of a court of another state not attested by the clerk, and without any certificate of the presiding magistrate that the attestation is in due form of law, will not be received in evidence.'—(263)</p> <p>2, Appeals—Abstract—An abstract which sets forth all the evidence given in support of a. particular cause of action will entitle the appellant to a review of errors alleged in the judgment' upon that cause of action.—(263)</p> <p>3. Appeals—Judgment Reversed in Part — Where a judgment was reversed in part, the court below was directed to grant a new trial as to the particular cause of action in respect to which error had intervened, and thereupon to vacate the judgment as to the residue, and enter a new judgment as of the date of the first, for the total amount found due.—(263)</p>

<p>1. Statutes Construed—Time of Taking Effect—The phrase, “six months after the passage of this act,” in section 2 of the Act of March 14, 1902 (Laws 1902, 23), imports, “after the approval of the act.”—(265)</p> <p>2. Evidence — Admission—Offer of Compromise — A mere offer of compromise, not admitting liability, is not admissible in evidence against the party making it.—(267)</p> <p>3. Damages—Evidence—A railway company is not to be assessed the full value of an animal injured by one of its trains, but not seriously, though the animal is afterwards shot, no evidence being given as to the person by whom it was shot nor of any necessity to put it to death.—'(266)</p>

<p>Statute of Limitations—Deed of Trust—The statute of limitations does not "bar the exercise of the power of sale contained in a deed of trust given as security for a debt.</p>

<p>1. Personal Property—Purchase—Prior Sale — A purchase from one K. of all animals bearing his brand, does not give title to the offspring of a mare which K. had previously sold, and which, at the date of the purchase, was not in K.’s possession.—(272)</p> <p>2. Statute of Frauds—Sale of Chattels—Who May Question —One who is neither the purchaser of an animal, nor the creditor of the one who sells it, cannot object that a purchase asserted by another was not accompanied by a change of possession.—(273)</p> <p>3. Appeals—What May Be Assigned for Error — Appellant will not be heard to complain of an instruction which accords with his own contentions in the court below.—(273)</p> <p>Nor of an instruction to the whole of which he excepted, and which contains one provision sound in law as to him.—(273)</p> <p>Nor of the refusal of an instruction which is inapplicable to the facts presented upon the trial.—(273)</p> <p>4. Statute of Limitations—Pleading — The statute must be ■ specially pleaded in replevin.—(274)</p> <p>5. Administration—Unnecessary—There is no necessity for administration upon the estate of.one who owes no debts. The heir may recover a chattel pertaining to the estate, though there has been no administration.—(274)</p>

C. C. Holbrook, Judge. 'The plaintiff in error and one Charles B. Tharp were tried in the district court of Mineral county for the murder of Howard Y. McKinney. Tharp was acquitted. Selfridge, hereinafter called the defendant, was convicted of murder in the first degree, and the jury fixed his punishment at imprisonment for life. To reverse the judgment of the lower court, the defendant prosecutes this proceeding in error.

<p>Appeal from Teller District Court—Hon. William P. Seeds, Judge..</p>

<p>Appeal from Phillips District Court — Hon. E. E. Armour, Judge.</p>

<p>Appeal from Boulder District Court — Hon. Christian A. Bennett, Judge.</p>

<p>Divorce—Not Granted to the innocent Spouse against His or Her Will—A -woman who is without fault cannot he divorced against her will.—(294)</p> <p>The prayer for divorce may be withdrawn at any time' before decree is entered.—(294)</p>

<p>1. Appeals—When an Appeal Lies—An action to restrain the sale of lands under a deéd of trust does not involve a freehold. No appeal lies from a judgment of discontinuance therein.—(295)</p> <p>2. Deed of Trust—Designation of Trustee—Period of Advertisement—A deed of trust to “the public trustee,” executed by a resident of a particular county, conveying lands situate in that county, requiring notice of the sale, upon default, to he published in that county, sufficiently identifies the grantee as the public trustee of the same county.—(296)</p> <p>Failure of the deed to specify the length of time for which the notice of sale must be published does not invalidate the advertisement. The trustee may advertise for a reasonable time, not less than the minimum period provided by the statute.— (297) *</p> <p>. 3. Pleadings—Amendment—Must Be Applied For—Where, on sustaining a demurrer to the complaint, no application for leave to amend is made, judgment of discontinuance is proper. —(298)</p>

<p>1. Criminal Law—Abortion—Evidence—Under'§ 1209, Mills’ Stats., .the prosecution is not required to show that the acts of the accused were not necessary to save the life, or to prevent serious bodily injury, nor that what was done by the accused was not done under the advice of a physician.—(300)</p> <p>2. Indictment — Statutory Exceptions — The statute pronouncing the procuring of an abortion, upon the body of a pregnant woman added the proviso: “unless it appear that such miscarriage was produced under the advice of a physician, with intent to save the life of such woman, or prevent serious and bodily injury to her.” These exceptions need not be negatived in the indictment.—(300)</p> <p>3. Instructions—Not Based Upon Evidence—An instruction upon a theory not supported by the evidence should not be given.—(301)</p>

<p>1. Appeals—Where An Appeal Lies—No appeal lies from a judgment of discontinuance upon demurrer to the complaint, in a cause not relating to a franchise or freehold.—(303)</p> <p>2. Docketing as Writ of Error—The court will not order an appeal to be docketed as a writ of error, where the action is upon a contract already expired by its own limitations.—(303)</p>

<p>Error to El Paso District Court—Hon. Louis W. Cunningham, Judge.</p>

Frank T. Johnson, Judge. This suit was instituted April 6, 1899, by the filing of plaintiff’s complaint alleging, in substance, that, on August 15, 1890, one De Sollar made and delivered to plaintiff four promissory notes for $4,-191.00 each, payable April 26, 1893, with interest at seven per cent, per annum, payable semi-annually, and, to secure their payment, executed and delivered to plaintiff a deed of trust bearing the same date, wherein he conveyed to Thomas J.…

<p>Appeals—When the Facts Will Be Examined—A final decree in an equity cause, upon conflicting evidence, heard orally before the court, ño question of law being presented, will not be reviewed.—'(317)</p>

A. H. DeFrance, Judge. This is an action for equitable relief, commenced by tbe plaintiff, Robert P. Rollins, appellant here, in the district court of Arapahoe… Held: and also for affirmative relief adjudicating the respective rights of the parties to the use of water through said J. D. Ward Ditch No. 2, and of ownership therein. A motion by plaintiff to strike the further answer and cross-complaint, and then a special demurrer thereto, were in turn overruled by the court.

<p>Error to. Pueblo District Court — Hon. J. E. Rizer, Judge.</p>

<p>• Error to Pueblo District Court—Hon. John H. Voorhies, Judge.</p>

<p>Error t'o Weld District Court—Hon. Christian A. Bennett, Judge.</p>

<p>1. Water Rights—Different Priorities Under the Same Ditch—The same consumer may he entitled to two or more priorities to the use of water from one ditch, and there may he different priorities belonging to different consumers.—'(354)</p> <p>2. Adjudication of Priorities—The relative rights of those entitled to use the waters of a ditch can not he litigated in the statutory proceeding for adjudicating the priorities of the water district.-—(354)</p> <p>3. Adjudication of Priorities—Statement of Claim Not an Estoppel—Where there are several tenants in common of a water right, and each files a claim to the same ditch, their rights inter se are not controlled hy the statement of claim made hy either, at variance with the actual division and use of the water, at all times prior to the institution of the proceeding and for many years thereafter.—(354, 355)</p> <p>4. Notice—Circumstances Putting on Inquiry — A decree awarding priorities to the waters of a stream to three parties, but which ignores the claim made by one of them, awards to another a greater volume, and from an earlier date, than claimed by him, and expressly disclaims the adjustment of their rights as between themselves, calls for investigation by one proposing to purchase the rights of one of them, as to the foundation of the right, to wit, the actual use and enjoyment of the water. —(355)</p> <p>5. Statute of Frauds — Verbal Agreement—Part Performance—A verbal agreement for the division of the waters of a ditch is taken out of the statute of frauds by an open and notorious enjoyment of the water for years in accordance with the agreement.—(356)</p>

<p>. Appeal from Bio Grcmde District Court—Hon. Charles C. Holbrook, Judge.</p>

<p>Appeal from Larimer District Court — Hon. Christian A. Bennett, Judge.</p>

<p>1. Issues—How Ascertained—: Where there are no written pleadings, as in cases originating before a justice of the peace, the issues must be gathered from the testimony and the instructions.—(363)</p> <p>2. Appeals—When the Facts Will Be Examined—A verdict based upon conflicting evidence, there being sufficient evidence to sustain it, will not be reviewed.—(364)</p>

<p>1. Appeals—Where an Appeal Lies—No appeal lies from a judgment of the district court awarding a peremptory mandamus to the county commissioners requiring the levy of a tax.—(365)</p> <p>2. Appeals—Docketing as Writ of Error—-Section 388a of the Code has no application where the appellee has made no appearance, and no scire facias has been served.—(365)</p>

Prank W. Owens, Judge. Plaintiff in error brought suit in replevin against the defendant in error, as sheriff of Summit county, to recover possession of certain'cattle which it was alleged the latter had wrongfully taken and retained possession of.

<p>Appeal from Summit County Court—Hon. J. W. Swisher, Judge.</p>

Robert E. Lewis, Judge. Defendant in error, plaintiff below, brought suit against the plaintiff in, error, as defendant, to recover for the alleged breach- of a contract entered into between the parties.

<p>1. Eminent Domain—Right to Contest Necessity—Waiver Of—Respondent denying the alleged necessity for taking, and demanding that the issue of necessity be determined before any jury is impaneled, does not waive his right in this respect _by consenting that a jury he summoned.—(380, 381)</p> <p>2. Duty of Court to Summon Commissioners—When the respondent demands the determination of the necessity or taking, it is the duty of the court to summon commissioners for this purpose, even though the demand does not reguest or suggest it.—'(381)</p>

<p>Appeal from Mineral District Court—Hon. Charles C. Holbrook, Judge.</p>

<p>Error to Denver District Court—Hon. Frank T. Johnson, Judge.</p>

<p> Original Proceeding on Interrogatory from the House of Representatives. </p>

<p>'Appeal from Bio Grande District Court—Hon. ■ Jesse G-. Northcutt, Judge.</p>

<p>1. Water—Riparian- Rights—The doctrine of the common law that a land owner is entitled to have the waters of every natural stream which traverses his land, flow continuously in their natural course, rejected.—(403)</p> <p>2. Corporations—Purpose of Organization — A corporation may lawfully he organized for the generation and sale of light, heat and power.—(404, 405)</p> <p>3. Pleading—Legal Conclusions—An averment that a proposed diversion of water is for “speculative purposes” is a mere conclusion. The pleader should, in such case, aver what particular use has been made or is intended, so that the' court may determine its character.—(406)</p> <p>Construction —- Complaint construed to ground the action upon the unlawful diversion of the waters of a natural stream upon plaintiffs premises, not upon the invasion of plaintiffs lands.—(407)</p> <p>4. Appeals—Party to Cannot Shift Ground — Appellant is not to be permitted to shift his ground from the contentions made in the court below.—(408)</p>

<p>Error to Jefferson District Court—Hon. A. H. Db France, Judge. :-</p>

<p>Appeal from Ouray District Court—Hon. Ttteron Stevens, Judge.</p>

<p>1. Master and Servan!—Duty of the Master as to Machinery and Appliances—The master is not an insurer of the safety of the appliances provided for the servant’s use. He is only required to exercise reasonable care for the,, servant’s safety. An instruction that if a particular appliance was “dangerous” to a servant, and could have been made safe, it was negligence in the master to leave it in its then condition, is error.—(419)</p> <p>2. Trial—Questions for the Jury—In an action for negligence, the evidence being conflicting and there being sufficient competent evidence to warrant a verdict for the plaintiff, the case must go to the jury.—(420)</p> <p>That the servant might have avoided injury by going a long way around is not sufficient to take the case from the jury, where, at the time of the injury, he was in the performance of a duty requiring prompt action, and he had no knowledge of the defect which occasioned the injury, even though there was evidence that by ordinary circumspection he must have seen 'the defect. The court is not to declare that it is negligence in the owner of a mill to leave a set-screw uncovered, if this involved danger to the servants employed there. The question must be left to the jury.—(423, 425)</p> <p>3. Instructions—Objections—A general objection to the refusal of the whole of a series of instructions’, some of which are improper, will not be considered. Counsel should at the time an instruction is offered call the attention of the court thereto, and when objection is made to an instruction, the reason therefor should be assigned.—(423)</p>

<p>Appeal from Denver District Court — Hon. Frank T. Johnson, Judge.</p>

<p>Error to El Paso District Court—Hon. William P. Seeds, Judge.</p>

<p>Appeal from Denver District Court—Hon. Jesse G. Northcutt, Judge.,</p>

<p>Appeal from Hinsdale District Court-—Hon. Theron Stevens, Judge.</p>

P. L. Palmer, Judge. On October 6, 1898, the plaintiff in error filed ber complaint against tbe defendant in error, in what is now the district court of the city and county of Denver, alleging that, on May 17, 1866, the defendant, a corporation of the state of New York, issued a policy of insurance to one Fannie Heller upon the life of her husband, David Heller.

<p>1. Trials—Motion for New Trial—Time of Filing Affidavits —An affidavit filed in support of a motion for a new trial without leave of the court, and after the time limited hy a previous order, is not to be considered.—(472)</p> <p>Waiver—Presumptions—The successful party is not presumed to waive his right in this respect.—(472)</p> <p>2. Affidavit—Sufficiency—An affidavit merely stating what the opposing counsel has directed his client to do, but not showing that in fact anything was done, pursuant to the direction, is insufficient to convict the party of misconduct.—(472)</p> <p>3. New Trial—Excessive Damages—A new trial will not be granted because excessive damages are awarded, unless this appears to be the effect of passion and prejudice.—(473)</p> <p>4. Damages—Continuous Injury—The obstruction of an irrigating ditch, in the course of the construction of a railroad, is a continuous injury, and prospective damages may be awarded. —(473)</p> <p>Valuation of land by an assessor is not admissible- as evidence of value against the owner.—(474)</p>

<p>Appeal from Denver District Court — Hon. Prank T. Johnson, Judge.</p>

<p>1. Contracts—Public Policy—An experienced physician, enjoying an extensive practice, receives, as an assistant, a young man without experience or acquaintance, agreeing to pay him a stated salary, and render him other benefits, the employment to continue as long as the services of the assistant are satisfactory, or so long as they mutually agree. The assistant upon his part agrees, that upon the termination of the relation he “■will not either directly or indirectly practice either medicine or surgery in any of its branches, during the term of five years,’’ in the city which is the residence and field of practice of his employer. The assistant’s contract rests upon legal consideration, is reasonable, necessary to the protection of the employer, and is enforceable in equity:—(504)</p> <p>2. Consideration—The adequacy of the consideration of such a contract will not be inquired into.—(500, 501)</p> <p>3. Where Such Contract Controls—But such contract will not be held to control, when the assistant served thereunder but for a brief period, the case being manifestly not within the intention of the parties.—(505)</p> <p>4. Injunction—When Allowed—An injunction was awarded to restrain the violation by a professional man of a restrictive covenant, in a contract by which he -had been previously taken into the service of another.— (506)</p>

<p>Appeal from Mesa District Court—Hon. Theron Stevens, Judge.</p>

<p>Appeal from Adams County Court—Hon. H. H. G-utheil, Judge.</p>

<p>1. Municipal Corporations—Ordinance Exceeding Corporate Powers Enjoined—Proceedings for the annexation of territory, exceeding corporate authority, will he enjoined at the suit of the property owner.—>(526, 527)</p> <p>2. Municipal Boundaries—Extension—It seems that the purchase by a municipal corporation of contiguous lands does not extend the boundary of the municipality so as to include such lands—(527)</p> <p>The boundary line must be an unbroken line.—(528)</p> <p>3. Municipal Corporation — Annexation of Territory — The determination of whether contiguous territory shall be annexed rests with the qualified electors of the municipality.—(527)</p> <p>4. Words and Phrases—The words “included” and “embraced” are synonyms.— (528)</p> <p>5. Statutes Construed—Mills’ Stats., § 4389a.— (526-528)</p>

<p>1. Judgment—Docket Entry—A transcript of the docket entry of a judgment' is not an exemplification of the record, and cannot he received to establish a claim against a decedent’s estate, under section 4787, Mills’ Stats.—(531)</p> <p>2. Decedent’s Estate—Exhibition of Claims—The statute (Mills’ Stats., § 4787) providing that the manner of exhibiting claims against the estate of a decedent shall be by filing a copy of the account or instrument in writing, “or an exemplification of the record on which such claim is founded;” the mere filing of a transcript of docket entry of the judgment of another court is not sufficient; and this being the only exhibition of the claim it must be rejected as not presented within, the statute of non-claim. (Mills’ Stats., § 4780.)—(531)</p> <p>And such" insufficient and ineffectual exhibition of the claim does not arrest the course of the general statute of limitations. —(532)</p>

<p>1. Criminal Law—Cruelty to Animals—Information—An information under the act of April 11, 1905 (Laws 1905, 187), charging the accused with procuring dumb animals to fight, must allege that the act was done for sport or amusement, or upon a wager, as to the result.—(5.35)</p> <p>• 2. Accessory—The offense of the accessory, under section 2 of the same act, is a substantive offense. The accessory may be entirely innocent of the principal offense. He is chargeable only in case he is wilfully present, or makes a wager on the result;, and this must be averred in the information.—(536)</p> <p>3. Evidence—Reasonable Doubt—To convict of a criminal offense the evidence must exclude all reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt—(536)</p> <p>4. Witness—Discrediting—Wilful False Testimony—An instruction that if any witness, because being interested in the result of the action, has testified falsely all his .testimony may be disregarded, except so far as corroborated, is not faulty for the omission of the adverb “wilfully.”—(536)</p>

<p>1.. Assignment of Chose in Action—How Effected—As between assignor and assignee no particular writing, and no particular form of words, is essential.—(540)</p> <p>Effect—One assigning a non-negotiable executory contract does not warrant that it will be performed by the other party thereto, but merely that the contract is what it purports to be. —(542)</p> <p>2. Assent to—Where, by the terms of an executory contract one of the parties is prohibited from assigning it without the consent of the. other, such assent may be verbal, and without any form of words, and when the- assignment is accepted, on the faith of such assent, the assent cannot be’ withdrawn or withheld.—(545)</p> <p>3. Contracts—Rescission—The cancellation by a railway company of a contract for the manufacture of ties, does not affect the other party thereto who has, with the consent of the railway company, assigned the contract in good faith to a third person; nor is the assignee entitled to rescind his purchase, merely on the ground of such cancellation.—(546)</p>

John I. Mullins, Judge. Action by appellee, as plaintiff, to recover from appellants, as defendants, commissions for sale of mining property. From a verdict and judgment in favor of plaintiff in the sum of $2,000.00, the defendants appeal.

<p>1. Appeals—When Facts Will Be Reviewed—A finding based upon substantial evidencé will not be reviewed.—(554)</p> <p>2. Error Must Be Made Apparent—Sustaining an objection to a question will not be held erroneous unless it appears by the record that what was sought to be elicited was relevant and competent.—(556, 557)</p> <p>3. Harmless Error—The admission of incompetent evidence to a proposition established by other competent and uncontradicted testimony is harmless.—<556)</p> <p>So evidence to an item of account which was rejected below.—(556)</p> <p>4. Evidence—Measure of Proof Required—The rule requiring clear and satisfactory evidence to establish the abrogation of a written contract does not import that all conflict shall be excluded.—(555)</p>

<p>Appeal from Bio Grande District Court—Hon. C. C. Holbrook, Judge.</p>

<p>Appeal from Logan District Court—Hon. E. E. Armour, Judge.-</p>

<p>1. Bill of Exceptions—Requisites—The bill of exceptions must bear the seal of the judge who presided at the trial. This may not be waived by the stipulation of parties. The successor in office of the judge ■ is not competent to amend the bill by affixing'his private seal.—(568)</p> <p>2. Amendment—Where an amendment to a bill of exceptions is desired, notice must be given and a record made of what occurs at the hearing, and a transcript thereof brought to the supreme court.—'(569)</p> <p>3. Appeal—Dismissal—Where by reason of the absence of a bill of exceptions the errors assigned were not open to investigation, the appeal was dismissed.—(570)</p>

<p>Intoxicating Liquors—Social Club Dispensing—Sale—A social club which dispenses intoxicating liquors to its members, at a price fixed by its managers, violates a local ordinance prohibiting the sale or other disposition of such liquors, even though such liquors are provided, merely as incidental to the entertainment of the members of the club. The transaction is a sale.' —(581)</p>

<p>Error to Teller District Court—Hon. Wm. P. Seeds, Judge.</p>

<p>1. Judgment—Misnomer of Defendant—Effect—One sued by-a false name submits to a default. He is bound by tbe judgment.—(592)</p> <p>2. Injunction—To Stay Judgment at *Law—An injunction will not be allowed to stay execution of judgment rendered by a justice of the peace, where the only ground of complaint is the misnomer of the defendant, no question being made as to the liability of the defendant for the amount awarded against him. The fact that the justice of the peace has assum’ed to amend the judgment does not affect the result.—(591)</p>