Volume 46 — Colorado Reports

<p> Original Application for Prohibition. </p>

<p>Appeal from Denver District Court — Hon. P. L. Palmer, Judge.</p>

<p>1. Sale — Certainty of Terms — The purchaser of goods will not he heard to deny liability, merely because the amount of the commodity purchased was not stipulated, at the time of the transaction, nor the price, or time of payment specified, where the quantity actually delivered is shown, and the market price was the price contemplated by the parties. — (26)</p> <p>2. Appeals — Harmless Error — The admission of testimony which has no material bearing upon the issues is harmless. —(26)</p> <p>3. Where the Facts Will Be Examined — Where the cause is tried without a jury, and the evidence is in conflict, the court of review cannot interfere. — (28)</p> <p>4. Statute of Frauds — Whether Promise Direct or Collateral —Plaintiff refused credit to one “C,” but stated that credit would he extended, if defendant would stand good for the bill. Later “C” reported that defendant had agreed to he responsible. Accordingly plaintiff delivered the goods. Defendant, upon being informed of what had occurred, said it was all right. Held that promise was direct, and defendant liable. — (27-28)</p>

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

<p>Error to Pueblo District Court — Hon. N. Walter Dixon, Judge.</p>

<p>Error to Logan District Court — Hon. Edward E. Armour, Judge.</p>

<p>Appeal from Clear Creek County Court — Hon. Roy H. Blackman, Judge.</p>

<p>Error to Denver District Court — Hon. John I. Mullins, Judge. .</p>

<p>1. District Court of Several Divisions — Where Criminal Information to Be Filed — When in.a district court of several divisions the rules designate one of the divisions as the criminal division, and direct that all criminal business shall he assigned thereto, it is not a contempt in the district attorney to file an information in that division, even though a complaint has been made to the judge presiding in another, and the judge of the latter is assuming jurisdiction, and requests that the information he filed with him. — (50)</p> <p>2. Contempt — Notice of Proceeding — An officer is not to he convicted of a past contempt, even in a proceeding at which he is present, if he has had no previous notice that this is the purpose of the proceeding. — (50)</p>

<p>1. Appeal — Presumptions of Regularity — Where an appeal from an assessment is heard in the county court it will he assumed, in the supreme court, no objection being taken to the regularity of the appeal, that all things required by the statute in order to such appeal, were done.- — (53)</p> <p>2. Taxation — Appeal from an Assessment — The assessor is not required to traverse the objections made by the taxpayer to his assessment. The assessment and the decision of the assessor upon the objections, are presumed to he correct until the contrary is manifested by evidence. The burden of proof is on the objector. — (52)</p>

<p>Appeal from Pueblo County Court — Hon. Prank G. Mírick, Judge.</p>

<p>Replevin — Judgment—In. replevin between lien claimants, the successful party recovers possession of the goods. A judgment for damages merely is without the issue and cannot be sustained.</p>

<p>Appeal from Sedgwick County Court — Hon. A. H. Miller, Judge.</p>

<p>Appeal from Arapahoe District Court — Hon. A. H. De France, Judge.</p>

<p>Appeal from Teller District Court — Hon. James Owen, Judge.</p>

James E. Garrigues, Judge. Sections 21 to 41, both inclusive, of the general revenue act of this state, passed in the year 1902, provides for the imposition and collection of what is denominated in the act, an inheritance tax.

<p>Appeals — To Whom Allowed — An executor representing no one but himself will not be allowed to appeal from an order directing a partial distribution of the testator’s estate.</p>

<p>1. Nuisance — Legislative Authority — What is authorized by law cannot be a nuisance. — (110)</p> <p>2. Irrigation — Canals—Duty of Owner asi to Seepage — The owner of an irrigating canal, miles in length, is not under duty to cement or flume it, through its entire length, or any considerable portion thereof, to prevent seepage.. — (114)</p> <p>Where the water escapes only in some small space, and may be checked without unreasonable expenditure, quaere? — (114)</p> <p>3. Damages — Damages which result from the proper and skillful construction of a canal are taken into account in condemnation proceedings, even though difficult of ascertainment, uncertain and of doubtful result; the award includes and satisfies all such damages. — (112)</p> <p>4. Seepage — Damage to Lands — When Action Accrues — An action to recover for injuries occasioned to land, by seepage thereto of the waters of a canal, properly constructed under lawful authority, accrues when the lands are first visibly affected and injured. The statute of limitations begins its course from that date. The land owner may recover, in one action, all damages which have been sustained and all prospective damages, to the end of time. After the lapse of six years from the first visible and sensible appearance of the injury the action is barred. —(113)</p> <p>Where the injury occurs to some small tract or portion of the lands, and later, to other and distinct portions, whether the course of the statute begins from the first injury, quaere? — (120)</p> <p>5. Continuing Nuisance — A canal properly and skillfully constructed by lawful authority but for which, nevertheless, for a great part of the length thereof, water continuously seeps into other lands, doing them injury, is not to be regarded as a continuing injury, even though by fluming or cementing or by other means, the escape of the water may be prevented. Such a structure is a permanent structure, and the injury therefrom is not regarded as abatable. — (109)</p> <p>6. Cases Overruled or Distinguished — The ease of Home Supply Company v. Hamlin, 6 Col. App. 341, distinguished. — (118)</p>

<p>This case controlled by the opinion in Middelkamp v. the same defendant, ante, p. 102.</p>

<p>The result in this case is controlled hy the opinion in Middelfcamp v. the same company, ante, p. 102.</p>

<p>Error to Pueblo District Court — Hon. N. Walter Dixon, Judge.</p>

<p>Error to Pueblo District Court — Hon. N. Walter Dixon, Judge.</p>

<p>1. Evidence — Relevancy—Plaintiff having united with her husband in conveying lands to the defendant, the president of a bank, and the husband having delivered the deed as security for moneys by him then owing the bank, and moneys afterwards to be advanced, with authority to defendant to dispose of the lands and apply the proceeds to the debts so due and to become due from the husband to the bank, the wife demanding the moneys derived from the sale of the lands, evidence that they originally belonged to the husband and were conveyed to the wife, without consideration, has a material bearing upon the husband’s authority to deal as he did. — (133)</p> <p>So, evidence of the agreement between the husband and the defendant, to contradict the claim of the plaintiff that she had been promised by the defendant the value of the lands. — (133)</p> <p>2. Ratification — Wife who conveys lands to the president of a bank, knowing that they are to be sold, and the proceeds applied to discharge an indebtedness of the husband to the bank, knowing of the sale of the lands at the time they are afterwards sold, and that the proceeds are being consumed by the husband, for his benefit, hers, and that of their children, and who makes no demand for the proceeds until eighteen months after the sale, has no action for the proceeds. — (135) ■</p>

<p>1. Jury — In County Court — How Selected — The provisions of sections 2603 et seq., Mills’ Stats., are not exclusive. By secs. 1458, 2611, Mills’ Stats., and see. 2 of the act of April 6, 1891 (Laws 1891, 24.9), the county court may summon a jury to try a criminal information, by open venire. — (139)</p> <p>2. Criminal Law — Information—Where an information under sec. 1323, Mills’ Stats., charges, in the language of the statute, the keeping of a disorderly house “for the encouragement of idleness, drunkenness and other misbehavior,” the prosecution will not be permitted to show that gaming or fornication were encouraged there; but the omission to charge that these disorders were encouraged does not impair the sufficiency of the information. — (140)</p> <p>Duplicity — That the information also avers the selling of intoxicating liquors and procuring persons to come together “for the purpose of drinking, tippling and other misbehavior” does not make it vulnerable to the charge of duplicity. — (141)</p> <p>Affidavit — The affidavit required by sec. 1432h, 3 Mills’ Stats., need not aver that the affiant is a competent witness in the cause. — (140)</p> <p>3. Criminal Law — Disorderly House — A place of public resort where illegal practices are habitually encouraged and carried on, e. g., the sale of intoxicating liquors in violation of law, tippling and drinking at pleasure, is a disorderly house though no profanity is indulged in and no loud noises, whereby neighbors or those passing are disturbed. — (143)</p>

<p>1. Appeals — Abstract—Defects in the abstract attributable to counsel’s unfamiliarity with the rules of the court, excused. —(146)</p> <p>2. Appeals — Presumptions—It is presumed until the contrary is made manifest, that no error occurred, either in the admission or rejection of evidence, and- that the evidence is sufficient to support the judgment. — (148)</p> <p>3. Lessee of Chattels Acquiring Outstanding Title — Effect— The lessee of a newspaper plant, subject to mortgages which he has assumed, cannot, even though he acts in good faith, effectually acquire title to the leased properties by a purchase at the sale under the mortgages. The purchase inures to the benefit of the lessor. — (149)</p>

<p>1. Railway Companies — Liability for Livestock Killed at Highway Crossing — A railway company is not required to fence the track at the crossing of a public highway. The provisions of the act of March 14, 1902 (Laws 1902, 23, secs. 2-5), have no application to such case, .and the owner of an animal killed at such crossing must, to recover against the railroad company, make affirmative proof of negligence. — (153)</p> <p>2. Negligence — Not Contributing to the Injury — Allowing willows- and weeds to grow along the way of a railroad affords no action for the killing of an animal, at the place, where it appears that such obstruction of the view in no manner contributed to the result complained of. — (154)</p> <p>3. Cases Overruled, Explained or Distinguished — It was not declared in Rio Grande Company v. Boyd, 44 Colo. 119, 96 Pac. 781, that the provisions of the act of March 14, 1902, secs. 2-5 (Laws 1902, 23), made the hilling of an animal at a railway crossing prima facie evidence of negligence. — (155)</p>

<p>1. Lease — Implied Covenants — Every lease contains an implied covenant for quiet enjoyment when there is no expression to the contrary. — (157)</p> <p>2. Landlord and Tenant — Eviction—Willful acts or conduct of the landlord which justify the tenant in quitting the premises amount to an eviction. The offensive conduct of tenants of adjoining premises, occupied under the same landlord, with the landlord’s knowledge and permission for unlawful purposes, are within the rule. — (157)</p> <p>The tenant is not, it seems, under duty in such case to inform the landlord or call upon him to abate the nuisance. He may at once abandon the premises. — (158)</p> <p>3. Damages — Loss of Profits — The anticipated profits of a new business are too remote, speculative, and uncertain, to found a recovery. — (159)</p> <p>4. Damages — Evicted Tenant — A tenant who for just cause quits the premises before his term expires, recovers only the difference between the rental -value of the tenement, and the agreed rental. — (159)</p>

<p>1. Quieting Title — Answer—An answer which merely denies the plaintiff’s title is insufficient. — (160)</p> <p>. 2. Cross-complaint — A cross-complaint which shows by averment that defendants are the owners in fee and entitled to possession, and that plaintiff is claiming under a void tax title, is a sufficient defense, as against a general demurrer, and entitles the defendant to affirmative relief. — (162)</p> <p>3. Tax Title — Limitations—The saving clause in the revenue acts of 1901, 1902 (Laws 1901, 241, 356.; Laws 1902, 43, 159) preserves to those entitled thereto the protection of the limitation in the former statute (Sec. 3904, Mills’ Ann. Stats.), notwithstanding its repeal. — (163)</p> <p>4. Statute of Limitations — Pleading in Reply — In an action to quiet title by a plaintiff in possession claiming under a tax deed, valid on its face, the plaintiff in the replication may plead the statute of limitations (Sec. 3904, Mills’ Stats.), to a cross-complaint for the recovery of the land. — (162)</p>

<p>1. Statute of Limitations — Effect—A statute which merely prescribes the time within which an action may be brought does not extinguish the-debt. The debt remains a moral obligation notwithstanding the bar of the statute. — (166)</p> <p>2. Pleading — The statute must be specially pleaded; or if the fact that the statute has run appears on the face of the adversary pleading, may be availed of by special demurrer. — (167)</p> <p>3. What is an Action? — An application for an execution to which a party is entitled as of right, is not an action, nor is the issuance of an execution in such a case prohibited by a statute which bars an action on the judgment. — -(167)</p> <p>4. Judgment — Execution—The creditor in a judgment recovered before a justice, a transcript of which has been filed in the district court, is entitled to execution at once, and of course, without application in any form, to the court. — (167)</p> <p>5. Execution Sale — Redemption—Amount—Judgment creditor desiring to redeem lands of his debtor from an execution sale places in the hands of the sheriff an amount more than sufficient to effect the redemption. The sheriff returns a portion of this, but by mistake retains an amount not sufficient to effect the redemption. The creditor having immediately tendered the deficiency, to the party entitled, and so, not having ratified the sheriff’s mistake, was held not affected by it. — (173)</p>

<p>1. New Trial — Misconduct of Counsel — Where, in argument, counsel makes an unwarranted, assertion, calculated to prejudice the jury, the court, on request, should correct it, and properly instruct the jury, suspending the argument, if necessary. — (175, 182)</p> <p>Doubted whether the intervention of the court in such case is an instruction, within the meaning of the statute, which requires instructions to the jury to he in writing. — (182)</p> <p>2. Criminal Law — Murder—Degree—The statute declaring that homicide “by any act greatly dangerous to the lives of others, and indicating a depraved mind, regardless of human life,” shall he deemed murder in the first degree, does not include every intentional homicide. The act must he not only dangerous to the person killed, hut an act greatly dangerous to the lives of other persons, and disclosing universal malice: — (181)</p> <p>3. Statutes Construed — Rev. Stats., § 1624 (Mills’ Stats., § 1176). — (181)</p>

<p>Appeal from Teller District Court — Hon. Louis W. Cunningham, Judge.</p>

<p>Error to Denver District Court — Hon. John I. Mullins, Judge.</p>

<p>Corporations — Stockholders’ Rights — A stockholder cannot, as a general rule, sue or defend for the corporation, or voluntarily, without its request, make himself its creditor. — (189)</p> <p>But where the officers of a corporation attempt to wreck it, or to secure its property to their own profit, or permit its property to be taken from it without an effort to rescue it, the stockholder, after first making due effort to induce .the governing officials to act, may in his own name sue or defend for the corporation, protecting its interests and incidentally his own. And no application need be made to the officials if they cannot, after diligent inquiry, be found, or if it is clear that it will be useless to call upon them. — (189, 190)</p> <p>The stockholder may in such case, without instituting any action whatever, redeem from execution sale the corporate properties, where redemption by the corporation is permitted by law, and may recover the amount paid by an action against the corporation. — (190)</p>

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

<p>Error to Fremont County Court — Hon. Jambs L. Cooper, Judge.</p>

<p>1. Equity — Bona fide Purchase — The defense of hona fide purchase must he presented hy answer unless it appears hy the complaint. — (202)</p> <p>2. Mining Claims — Application for Patent — Adverse Claim— The vendor of a mining location having deposited a deed in escrow to he delivered on payment of the agreed purchase money, need not interpose an adverse claim to an application for a patent hy one who claims under a surreptitious delivery of the deed, without complying with the conditions of the deposit. The doctrine of Davidson v. Fraser, 36 Colo. 1, reaffirmed. — (202)</p> <p>3. Pleading — Laches—The defense of laches is to he asserted hy answer — not hy demurrer. — (202)</p>

<p>Appeal from Boulder County Court — Hon. Junius Henderson, Judge.</p>

<p>Administration — Assets Removed from Another Jurisdiction Returned — The sole heir of a decedent removed certain personal assets from Missouri to Colorado, and was here appointed administrator. By the statute of Missouri the creditors of a decedent were entitled to a lien upon all assets pertaining to bis estate found in that jurisdiction. There were no debts owing in Colorado. On the application of the administrator appointed in Missouri, held that comity requires that the administrator here shall return to the state of Missouri the property so removed, or its equivalent in money, to an amount sufficient to satisfy the creditors of the decedent in Missouri. The circumstance that the administrator here has not returned an inventory of the property is immaterial.</p>

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

<p>1. Pleadings — An Appeal from Justice — A written pleading in tlie county court on an appeal from a justice of the peace, should on motion he' rejected. — (212)</p> <p>2. Evidence — Personal Knowledge of Judge — A judge is not permitted to act on his individual knowledge. — (212)</p>

<p>Testimony examined and held sufficient to establish defendant’s indebtedness to plaintiff.</p>

<p>Error to Montrose District Court — Hon. Sprigg Shackelford, Judge.</p>

<p>Appeal from Otero District Court — Hon. N. Walter Dixon, Judge.</p>

<p>Accord and Satisfaction — Tlie agreement of a creditor of an insolvent firm to release one of tlie members thereof in consideration of bis retiring from the business and giving up the salary which' he has before been accustomed to withdraw from the assets of the firm, is without consideration, and not a good accord and satisfaction. The firm being insolvent, the members are tfot entitled to draw a salary, or make any deduction from its assets for their own account. The agreement was to the detriment rather than to the advantage of the creditor.</p>

<p>1. Master and Servant — Duty of Master as to Place of Work —One operating a coal mine is under duty to exercise ordinary care to keep in reasonably safe condition the entry-way by which the miners pass from the main shaft to the different parts of the mine, and may not relieve himself of this duty by delegating it to a subordinate. The duty exists as to a miner who is required to pass there in order to report the result of a shot fired in the adjacent room. — (227)</p> <p>2. Assumption of Risk and Contributory Negligence of Servant — A coal miner who receives injury while engaged in the inherently dangerous work of “shooting a stump,” or who needlessly loiters where he knows the roof of the mine is momentarily expected to fall, has no. action against the master. — (228)</p>

<p>Error to Denver District Court — Hon. P. L. Palmer, Judge.</p>

Geo. W. Allen, Judge. The sixteenth general assembly passed an act known as the Local Option Law, which was duly approved March 23, 1907, and went into effect June 23 d next thereafter.

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

<p>Injunction — Abandonment—Dissolution—A railroad corporation claiming the right, under a grant from a former proprietor of the land, to maintain a snow fence from November 1 to March -15, in each year, obtained a temporary injunction restraining defendant from removing the fence. In March following, it removed the fence of its own motion, and never replaced it. On final hearing, three years after the award of the injunction, the bill was dismissed. Decree affirmed.</p>

<p>Error to El Paso District Court — Hon. Robert E. Lewis, Judge.</p>

■ James L. Russell, Judge. In the summer of .1904, The Spaulding' Manufacturing Company, a copartnership, engaged in the manufacture of buggies and wagons at G-rinnell, Iowa, shipped from .their establishment a carload of vehicles to Durango, in this state. They were shipped for the purpose of sale in Colorado, and were stored in a building on Main street, in Durango.

<p>1. Contracts —Construed—A memorandum delivered to a land broker with a plat of certain lands, describing the improvements and stating the terms of sale as “$4,000, one-half cash, &c. Commissions, $500,” does not authorize the broker to effect an exchange of the lands for other lands.- — (322)</p> <p>2. Evidence — Parol Inadmissible — A writing authorizing the sale of particular lands and specifying the terms of sale, what amount will be required in cash, what time will be allowed on the residue, at what rate of interest and what commissions will be paid to the broker, is a completed document, and not open to explanation by parol. — (321-322)</p> <p>3. Continuance — A continuance should not be granted to enable the party to produce immaterial testimony; nor upon the trial in the county court of a case appealed from a justice, to enable the plaintiff to call the justice as to what occurred before him, when several who were present before the justice were also present in the county court. — (322)</p> <p>4. Appeals — Abstracts and Briefs — When the instructions given are not set forth in an abstract, error assigned upon the instructions refused will not be considered. — (323)</p>

<p>1. Pleadings — Complaint — Separate Causes of Action' — A complaint which, in one cause of action, seeks to enforce a lien for labor performed or materials furnished under an express contract with the owner of the premises, and for other labor or materials performed or furnished, under contract with one in possession, under an executory contract of purchase, must state-these causes of action separately. — (325, 326)</p> <p>The requirement of subdivision 3 of sec. 70 of the Code is imperative. If objection is made in apt time, the complaint must be reformed; and if the order to that effect is disregarded, the pleading must be stricken from the files. The court has no' discretion. — (327)</p> <p>The objection must be taken by motion.</p> <p>The question whether several causes of action have been improperly united must be raised by special demurrer. — (326)</p> <p>2. Ambiguity and Uncertainty in the complaint may be assailed by a demurrer, or, it seems, by motion. — (326)</p>

<p>Appeal from Denver District Court — Hon. Peter L. Palmer, Judge.</p>

<p>1. Lease — Construction—Covenant that if the lessee fails to do the necessary work, the lessor may do it, and deduct the cost from the lessee’s interest in the crop, does not give a lien to the lessor. A mortgage hy the lessee, duly recorded, takes precedence of the claim of the lessor. — (333)</p> <p>2. Liens — Waiver—A lien, upon chattels is waived if the party entitled to it levy an attachment upon the same property for the same indebtedness. — (333)</p> <p>3. Chattel Mortgage — Failure to Assume Possession — One who, before the maturity of a mortgage debt, seizes the mortgaged chattels under an attachment against the mortgagor, obtains possession thereof as custodian and afterwards causes them to be sold under execution, will not be heard to contend that the mortgagee was delinquent in not assuming possession within the time prescribed by statute. — (334)</p>

<p>Appeals — A verdict upon conflicting testimony will not be reviewed.</p>

<p>Appeal from Gunnison, County Court — Hon. George Hetherington, Judge.</p>

<p>Appeal from Boulder County .Court — Hon. Junius Henderson, Judge.</p>

<p>1, Limitations — When the Statute Begins to Run — In an action for an account, from the date of the last item. — (344)</p> <p>2. Practice — Bill of Particulars — The provisions of the code penalizing a party for’ failing to furnish a hill of particulars, have no application to the trial in the county court of an appeal from a justice. The case of De Lappe v. Sullivan, 7 Colo. 182, is no longer authority upon the question. — (344)</p>

<p>1. Principal and Agent — Agent’s Authority — Authority to sell lands “for cash” does, not warrant a sale upon terms that part of the purchase price shall he paid at a later date. — (348) .</p> <p>2. Specific Performance — Contract of Sale by Agent — A contract for the sale of real property executed by an agent on behalf of the principal will not be enforced unless it appears that the agent strictly pursued his authority, or that his act was subsequently ratified by the principal. — (349)</p> <p>Where the written .contract executed by the agent and which is the basis of the action, expressly grants to the buyer a specified time to make payment of a large part of the purchase money, and the agent’s authority was to sell only “for cash,” evidence of an oral promise by the buyer to pay the balance of the principal as soon as the abstract of title was examined will not affect the question. — (350)</p> <p>Nor will it change the result that a day in the future was appointed for the payment of the residue of the price, in order to enable the agent to obtain the abstract, and a conveyance, and was so arranged at the agent’s request, when these facts were not included in the written contract. — (351)</p>

<p>Appeal from Garfield County Court — Hon. A. L. Beardsley, Judge.</p>

<p>Appeal from Denver District Court — Hon. Booth M. Malone, Judge.</p>

<p>1. Motion for New Trial — Right of Party to be Heard — Where the report of a referee is accompanied by the depositions of the witnesses examined before him, it is error to at once enter judgment thereon, refusing to hear counsel upon a motion to vacate the report. The fact that the term of office of the judge is about to expire does not justify the course taken. — (354)</p> <p>2. Practice — Right of Party to be Heard — It is error to deny hearing upon motion to vacate the report of a referee. That the time of office of the judge is about to expire is no ground to deny such hearing. — (354)</p>

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

Joseph Newitt. Judge. Plaintiff in error was convicted and fined for violating the “Itinerant Vendors’ Act,” Session Laws 1905, p. 274.

Henry Hunter, Judge. The question presented is the constitutionality of the Itinerant Vendors’ Act, Session Laws 1905, pp. 274 et seq.; Revised Statutes, § 3563 et seq. The title of the act is as follows: “An act to prevent and punish fraud in sales of manufactured goods, wares and merchandise by ‘Itinerant Vendors,’ and to regulate such sales.” The following are the sections of the act involved: “Section 1.

<p>Constitutional Law — Interstate Commerce — Soliciting and obtaining in tbis state orders for vehicles manufactured in another state, and shipped here to fill such orders, is interstate commerce. The Itinerant Vendors’ act, which assumes to impose a license tax upon those so engaged, is a -iolation of the federal constitution.</p>

<p>Error to Denver County Court — Hon. John R. Dixon, Judge.</p>

<p> Original Proceedings in Mandamus. </p>

<p>Appeal from Teller District Court — Hon. Louis Cunningham, Judge.</p>

<p>Appeal Bond — Defenses—Error committed in the trial of an appeal, or arbitrary and unlawful exactions prejudicial to the appealing party, constitute no defense to an action upon the appeal bond.</p>

John I. Mullins, Judge. This is a proceeding in mandamus, instituted by defendant in error against the plaintiffs in error, to compel them, as the board of county commissioners of the city and county of Denver, and as the chairman and clerk of said board, to draw warrants in his favor in the aggregate sum of $30,231.34, which amount he-claims is due him from said city and county in having transcribed that portion of the records of what was formerly old Arapahoe county, which…

<p>1. Appeals — When the Facts Will Be Examined — A finding supported by sufficient testimony will not be disturbed. — (429)</p> <p>2. Chattel Mortgage — Who May Question — Tbe officer wbo levies upon tbe goods of B under execution against A will not be beard to question tbe description thereof in a mortgage given by B to C, nor to contend that tbe goods were not in-being when tbe mortgage was executed, but a crop to be afterwards grown. —(429)</p>

<p>1. Demand — Where Necessary — One who having received money to be applied to the uses of the depositor for a particular purpose, converts it to his own use, is liable to an action without any demand.' — (431)</p> <p>2. Interest — Money Wrongfully Converted — Interest may be allowed from the time of the conversion. — (432)</p>

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

<p>Appeal from Otero District Court — Hon. John H. Yoorhees, Judge.</p>

P. L. Palmer, Judge. The complaint alleges that the plaintiff is unmarried, and of the age of seventeen years. That the defendant corporation is the publisher of The •Rocky Mountain News, a newspaper of large circulation.

Peter L. Palmer, Judge. The First National Bank of Denver commenced an action in attachment against A. L. Deane & Company under which a stock of goods and other personal property was levied upon and seized by the sheriff. Mrs. Follett intervened, claiming that the property attached belonged to her.

<p>Appeal from Kit Carson District Court — Hon. Lewis W. Cunningham, Judge.</p>

<p>Judgment controlled by opinion in the last preceding case.</p>

<p>1. Affidavit — Requisites—What purported to be a certificate of Cramer, county treasurer, bore the signature of another person, and was followed by a certificate of the county clerk that it was “Subscribed and sworn to before- me by the above named Marion F. Cramer, by his deputy,” etc. Doubted whether, in view of the difficulty of determining by whom' the oath was made, it was an affidavit at all. — (463)</p> <p>2. Tax Sale — Proof of Notice — The affidavit required by sec. 3885 Mills’ Stat. must be sufficiently specific to show with reasonable certainty that the requirements of the statute have been complied with. An affidavit of the treasurer stating that he has “caused a tax sale of real property to be published” in a newspaper specified, “for four weeks” and “posted a printed notice thereof in a conspicuous place”’ etc., “as provided by law,” not showing what tax sale is referred to, or what the notice contained, what property was described in it, or when the sale was to be held, or whether at public auction or otherwise, is not a compliance with the statute, and is wholly insufficient to support a tax sale. A deed based thereon is void. — (463-464)</p> <p>3. Quieting Title — Plaintiff’s Possession — Defendant having obtained possession of the premises by colluding with plaintiff’s tenants, the transaction was held to be a fraud in law, and futile to interrupt plaintiff’s possession. — (464, 465)</p> <p>4. Landlord and Tenant — Possession, obtained by collusion with tenant, is a fraud upon the landlord. In point of law the possession remains in him. — (465)</p> <p>5. Pleadings — Ambiguity—Objections to a complaint for uncertainty and ambiguity should be availed of by demurrer or motion.- The question is not to be raised by an objection to testimony. — ■ (464)</p>

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

<p>1. Wrongful Detainer — Judgment—In an action by a landlord against a tenant judgment for immediate possession is proper. Tbe only effect of sections 17, 24 of the statute is to stay enforcement of the judgment for forty-eight hours, in order that an appeal may in the meantime be perfected. — (470)</p> <p>2. Notice to Quit is not required where, by the express words of the lease the term ends at a day certain. — (471)</p> <p>3. Statutes Construed — A provision of the statute (Laws 1885, 224, see. 24) that upon judgment for the plaintiff in wrongful detainer, no writ of restitution shall issue until the expiration of forty-eight hours from its entry, does not import that judgment may not be given for immediate possession. Its only effect is to stay the enforcement of the judgment for the period specified. — (470)</p>

<p>1. Appeal — Abstract of the Record — Error assigned upon tbe denial of a motion for a new trial will not be considered unless tbe motion is set out in tbe printed abstract. — (472)</p> <p>2. Where the Facts Will Be Examined — A finding upon conflicting evidence will not be disturbed. — (472)</p>

<p>Bill of Exceptions — Where Necessary — The order of an inferior court denying a motion to vacate a judgment, which was supported and opposed -by affidavit, will not be reviewed in the absence of a bill of exceptions.</p>

<p>1. Municipal Ordinance — Action for Penalty — An action for penalty prescribed by municipal ordinance is a civil action. — (474)</p> <p>2. Bill of Exceptions — Where Necessary — Instructions will not be reviewed where no objection or exception thereto was preserved by a bill of exceptions. — (474)</p>

<p>Appeal from Larimer County Court — Hon. C. V. Benson, Judge.</p>

<p>Appeal from Larimer County Court — Hon. C. Y. Benson, Judge.</p>

<p>1. Practice of Medicine — Who May Be Licensed — The Act of March 14th, 1881 (Laws 1881, page 185) does not authorize or require the granting of a license to one who for ten years has pursued the practice of his profession in violation of that statute. The concluding clause of the fourth section extends only to those who have pursued the practice of the profession within the state for ten years prior to the enactment of the statute. —(479)</p> <p>2. Statutes Construed — A statute provided that every person assuming to practice medicine or surgery should receive a license from the State Board of Medical Examiners and prescribed, the conditions upon which such license should be granted. The concluding clause of the section declared that “All persons who have made the practice of medicine and surgery their profession, continuously, for a period of ten years within this state, and can furnish satisfactory evidence thereof to the State Board of Medical Examiners, shall receive from said board a license to continue practice in the state.” . It was held that one who. without detection had practiced his profession for ten years subsequent to the passage of the act, was nout thereby entitled to receive a license; that the clause of the statute quoted had application only to those who. had pursued the profession previous to-the enactment of the statute. A violation of the law confers, no right. — (479)</p>

<p>Nuisance — Power, of Municipality to Declare — A charter power “to regulate and prevent the carrying on of any business which may be dangerous or detrimental to the public health; * * * and to declare, prevent, and abate nuisances, on public or private property, and the cost thereof,” and “to enact and provide for the enforcement of all ordinances necessary to protect life, health and property, to declare, prevent and summarily abate and remove nuisances,” does not authorize a municipality to arbitrarily declare by-ordinance that “a brick yard where bricks are burned, within 1200 feet of any residence, or public school house, or park belonging to the city, without permission of the owner or occupant of such residence, or of the city, when within 1200 feet of a school house or public park, is a nuisance, and impose upon the owner a fine for each day’s continuance thereof.” — (480)</p> <p>The ordinance is void because unreasonable, and because a taking or destruction of private property without due process of law. — (486)</p>

<p>Appeal from, Denver District Court ■ — ■ Hon. Samuel L. Carpenter, Judge.</p>

<p>1. Counties — Refunding County Indebtedness — Under sec. 6, art. XI, of the Constitution as amended in 1888, any debt of the county which may be funded may be refunded. — (494)</p> <p>2. Election — Proposition Including Separate Issues of Bonds —Under the statute in force in 1899, it was not improper to submit to the electors of a county, as a single proposition, the question of refunding two distinct series of outstanding bonds. The doctrine of Denver v. Hayes, 28 Colo. 110, has not 'the controlling application to the question. — (495)</p> <p>3. Election — Notice—A notice of an election under the Act of April 18th, 1899 (Laws 1899, ch. 90, p. 166, Rev. Stat., sec. 1370-1374), for refunding the indebtedness of a county, required the electors to vote upon the question at the general election, the date of which was specified and the voting places sufficiently indicated. Held, that the omission to specify in the special election notice the particular places at which the electors were to- present their ballots upon this question, was immaterial. — (497)</p>

<p>1. Pleadings — Answer—What Must Be Specially Pleaded— It seems that a novation by which one originally liable is discharged must be specially pleaded. — (499)</p> <p>2. Novation — There can be no effectual novation without the assent of the creditor. — (499)</p> <p>3. Appeals — What May Be Assigned for Error — Objections not taken below will not be considered. — (499)</p> <p>4. Misjoinder of Parties Defendant — Two corporations being liable upon an account for the same indebtedness, the creditor may sue either or both; and may unite with the two> the directors of one, who, by failing to file the annual report, have become personally liable for the debt, and may proceed to judgment against individual defendants, and their corporation, discontinuing as to the other. — (501)</p> <p>5. Harmless Error — Sustaining an objection to a question which is allowed in another form is harmless, error. — (501)</p> <p>So, refusing to allow the cross-examination of a witness who testifies, to what is, in effect, conceded by all parties. — (501)</p> <p>6. New Trial — Newly-discovered Evidence — A new trial will not be awarded to enable the defeated party to. produce testimony which, by reasonable activity, might have been presented at the trial. — (502></p>

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

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

<p>Error to Routt County Court — Hon. Charles A. Morning, Judge.</p>

<p>1. Appeals — Briefs—The court declined to consider questions not discussed in the briefs of counsel. — (522)</p> <p>2. Agency — Revocation—An agency not coupled with an interest is revocable; hut it seems that the principal is liable to the agent for his labor, and for moneys reasonably and necessarily expended in the furtherance of the agency, prior to the revocation. — (521)</p> <p>To affect the agent, he must have notice of the revocation. An assignment of a sheriff’s certificate of purchase is a revocation of an agency to find a purchaser therefor. — (521)</p> <p>3. Pleadings — Construction—A defendant having a judgment against a third party agreed with the plaintiff that he might collect it and have all over fifty per cent, that he might realize upon it, or safely secure, within one year. Subsequently certain real property was sold under the judgment, and struck off to the defendant. Before the lapse of the year, defendant assigned the certificate to a stranger. Plaintiff brought an action for the amount which, as he alleged, he would have gained but for the defendant’s revocation of his agency by the sale of the certificate. The complaint alleged that he “would have collected the judgment in full but for the wrongful acts of defendant.” Held to import a collection in the ordinary way, and entirely insufficient to advise defendant that plaintiff would attempt to show that, during the subsistence of the agency, he had found a purchaser for the certificate. — (523)</p> <p>4. New Trial — . Newly Discovered Evidence — Surprise — Where the plaintiff’s complaint indicates that plaintiff will adopt and rely upon a line of proof entirely distinct and different from that in fact adopted upon the trial, and defendant has no reason to anticipate that plaintiff will attempt to establish the facts to which his testimony upon the trial is directed, and acting with diligence produces affidavits which tend to negative the testimony upon which plaintiff recovered a verdict, and the testimony is such as, upon a second trial, will probably produce a different result, he is entitled to a new trial. — (523, 524)</p>

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

<p>Appeal- from Denver District Court — Hon. Sam:uel M. Carpenter, Judge.</p>

<p>1. Principal and Agent — Agent’s Authority — The manager of a retail store has- no implied authority to purchase -goods on the credit of his principal. — <543)</p> <p>One who deals with an agent must inform himself of the extent of the agent’s authority. A merchant selling goods to an agent, for the agent’s own use, and charging them to the principal, the agent having no authority to make the purchase nor having been ever held out by the principal as possessed of such authority, the merchant must look to the agent. — (541)</p> <p>2. Appeals — Party Limited to the Contention Made Below— Where, in the court below, plaintiff sought to charge defendant upon the ground of an express agency in another, he will not, upon appeal, be heard to urge liability upon the ground of a supposed benefit from the act, received by the principal. — (543)</p> <p>3. New Trial — Verdict Not Supported — A verdict not supported by any evidence will be set aside. — (543)</p>

<p>1. Water Rights — Prescriptive Title — Open, exclusive, adverse and peaceable possession and enjoyment of a share of the waters of an irrigating ditch for over thirty years, gives title. —(554)</p> <p>2. Findings on Conflicting Testimony — In a case heard without a jury, .a finding of facts supported by the testimony will not be reviewed, though there be a substantial conflict in the evidence. — (554)</p> <p>3. Appeals — Technical Errors will not be considered where it is clear that, upon the merits, the defeated party has no right, and that the ultimate conclusion must be the same, even although the judgment under consideration be reversed. — (554)</p>

<p>Evidence — Measure of Proof Required — One who for thirty years has enjoyed a particular share of the waters of an irrigating ditch, making no claim to any greater share, and has acquiesced in the open and notorious' enjoyment and use of the residue of the waters by others during the same time, must, if he asserts that a mistake occurred in the conveyance by which he acquired his right, and that he was entitled to a greater share of the water, make the facts appear by proofs sufficiently clear, direct and convincing to exclude all reasonable doubt, even though the grantor on the original deed has executed a new conveyance reciting the mistake. — (557)</p>

<p>•1. Accident Insurance — Construction of Policy — The rule that every policy of insurance is to be interpreted favorably to the assured does not authorize the court to supplant the contract of the parties by one of its own making. The condition of a policy of accident insurance that “upon the occurrence of an accident, and also upon receipt of notice of any claim on account of an accident, the assured shall give immediate notice in writing of such accident or claim, with the fullest information available,” to the insurer, is a condition precedent. Without such notice or notices, or a legal excuse for the failure to give it, the insurer cannot be charged. — (564)</p> <p>The failure may, however, be explained. — (564)</p> <p>The phrase “immediate notice,” means within a reasonable time. The insured may take- a reasonable time to procure such information as the requirement contemplates shall be furnished. — (565)</p> <p>2. Pleading and Evidence — Variance—Waiver of the conditions of an insurance policy cannot be proven under an averment of performance. — (568)</p> <p>3. Insurance — Waiver of Conditions — That the agent of an insurance company, after rightfully repudiating the claim of the insured, on account of his failure to give notice as required by the policy, made an examination of the circumstances attending the alleged accident, was not a waiver of the notice. — (569)</p>

<p>1. Master and Servant —• Servant’s Assumption of Risk — The servant assumes only such risks as are' obvious to a person of ordinary intelligence, ability and experience, and which arise out of the conditions which surround him at the time. —(577)</p> <p>Plaintiff and one Dalra were engaged in planking an ore chute. Dalra, selecting an ax which was somewhat battered and rounded, started to drive a spike into a plank immediately beneath where plaintiff was standing. Two attempts resulted in failure, the spike bounding away in each instance, but not toward plaintiff. Dalra, irritated by his repeated failures, struck the .third time with his whole force, and the spike flew into plaintiff’s eye. Plaintiff’s face, at the timé, was. about six feet above where Dalra was attempting to drive the spike. Held impossible to say that, as a matter of law, plaintiff had assumed the risk of injury from the last attempt; that the question must be left to the jury. — (575-577)</p> <p>2. Employer’s Liability — Notice of Injury — An attorney on behalf of an injured servant, and as such attorney, addressed a letter to the resident manager of the employer, stating‘the time and place of the injury, and referring to a letter of the physician attending the servant which he enclosed. The letter of the physician stated: “He was injured in the left eye on Nov. 14, 1902, in Camp Bird Mine. The eye was ruptured by the blow he received.” It appeared that there was no intention to deceive or mislead, and that the employer was not in fact misled. Held, that the notice was a compliance with the requirements of the Employers’ Liability act of April 8, 1893 (Laws 1893, 129, sec. 2). — (577-582)</p> <p>Where the notice is inaccurate or defective in its statements, more attention should be given to the question whether it- was intended to mislead, and did mislead, than to its contents. — (580)</p> <p>The question as to the intent of the servant in framing the notice, and of the effect upon the master of defects or inaccuracies in the notice, is for the jury. — (582)</p> <p>3. Master and Servant — Master's Liability for Medical Attendance — Assurances given to the servant at the time of his employment that in case of sickness or injury he will be received into a hospital maintained by the employer, and receive board, bed, medicines and medical attendance free, does not entitle the servant to- recover the expense of a trip to a distant city, and moneys expended there for the services of a- specialist, although this was upon the advice of the physician in charge of the hospital. The employer is not even bound to provide a specialist at the hospital. — (583)</p>

<p>1. Judgment — Equitable and Legal Relief — Reformation of CSntract — A written contract may, under proper pleadings, be reformed, and, enforced as reformed, in the same action. — (586)</p> <p>But in an action at law to recover rent under a written lease, the complaint alleging that by mistake the premises actually demised were not described therein, and praying merely judgment for the rental, there can be no judgment for the rent until and unless there is a decree directing reformation of the lease. Only ■the court can award this equitable relief, and until the contract is reformed, there can be no judgment thereon at law. A judgment upon a verdict of the jury in the action, without reformation of the alleged mistake, is error. — (586)</p> <p>2. Evidence — Measure of Proof Required — To warrant the reformation of a writing, on the ground of a mistake, the evidence must be clear and convincing, and mere preponderance of the evidence is not sufficient.- — (587)</p>

<p>1. Evidence — Objections—Cause Must Be Assigned — An objection to tbe reading of a deposition, no reason being assigned in the court below, will not be considered on appeal. — (588)</p> <p>2. Appeals — When the Facts Will be Examined — Where the testimony is in conflict, the verdict of the jury must stand. —(589)</p> <p>3. Appeals — Abstract—Error assigned upon the overruling of a question will not be considered unless the question, is set out in the abstract. 'So, where the error assigned is that an instruction given was not based upon the evidence, and the evidence is not set out.^-(589)</p> <p>4. Depositions — Objections to Questions — The objection that a question propounded to a witness examined upon commission is leading, cannot be made at the trial. — (589)</p> <p>5. Trial — Evidence in Rebuttal — The admission in rebuttal of what is properly evidence in chief is in the discretion of the trial court. Only in case of an abuse of the. discretion will the action of the court below be reviewed. — (589)</p>

<p>1. Discontinuance — Dissolution of Injunction — The dismissal of an equity cause dissolves an injunction awarded therein. —(592)</p> <p>2. Nonsuit — Effect of Testimony for Plaintiff — On motion for a nonsuit the testimony introduced on the part of the plaintiff must be taken as true; and the plaintiff is entitled to the benefit of all legitimate inferences therefrom. — (5.92)</p> <p>3. Executive Departments — Orders—Collateral Assault — The decision of .the secretary of the interior in a controversy between adverse claimants to public lands, annulling the entry of one as fraudulent, permitting amendment of the entry of the other, and awarding a patent to the latter relating to the date of his entry, cannot be assailed in an action upon a bond given by the party defeated in the land department, upon an injunction which he obtained from the state court restraining mining in the premises in dispute, while, the controversy was proceeding in the land office. — (595)</p> <p>4. Fraud — Entry of Public Lands — An entry of the public lands obtained by fraud is void ab initio. The entryman is, from the beginning, without right. — (595)</p> <p>The opinion of the court of. appeals in the same case, Quinn v. Baldwin Co., 19 Col. App. 497, approved. — (593)</p>

<p>Appeal from Gunnison District Court — JIou. Theron Stevens, Judge.</p>

<p>Appeal from Custer District Court — Hon. Morton S. Bailey, Judge.</p>

<p>Appeal from El Paso County Court — Hou. Robert Kerr, Judge.</p>

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

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