Volume 49 — Colorado Reports

<p>1. Water Rights — Change of Place of Diversion, will not be permitted if thereby injury will be occasioned to the vested rights of others. Every case must depend very largely upon its own circumstances. — (3)</p> <p>2. -Evidence — Burden of Proof — It rests upon the one demanding the change to make it appear that the rights of others will not be affected, even though this may involve the proof of a negative. — (4)</p> <p>3. ,-Relevancy — Evidence that the petitioner will, if his petition be allowed, irrigate a greater acreage of land and use the water for a greater length of time than before the change, is not to be received.— (5)</p> <p>4. -Experiments — A practical test for several years by the actual change desired, under the authority of an injunction improperly allowed, furnishes the most satisfactory evidence possible. — (6)</p> <p>5. -Effect of the Order — Permission to make the proposed change in no way enlarges the rights of the petitioner, either as to the volume of water, or the time of its use. — (7)</p>

<p>1. Pleadings — Verification of Amendment — That the original complaint is verified does not render it necessary that an amendment thereto shall he sworn. — (12)</p> <p>2. Interlocutory Orders — Not Res Judicata — An order striking 'out particular averments from a complaint is not final, and does not preclude the allowance, in the discretion of the court, of the filing of an amended complaint containing the same averments. — (14,15)</p> <p>3. Courts — Change of Judge Pending the Cause — A judge who has committed error in directing an averment to he stricken from the complaint may, while the cause is still in paper, correct such error; and another judge sitting in the place of the first may, in like manner, correct the errors of his predecessor. — (15)</p> <p>4. Pleadings — Amendments—The action of the lower court in allowing an amendment of the pleadings will not he reviewed unless injustice, or a clear abuse of discretion, is shown. — (18)</p> <p>5. Appeals — Law of the Case — Where upon appeal, in an action against the master for negligence in providing for the úse of the servant a defective and dangerous machine, the opinions of experts are held incompetent and inadmissible, it necessarily becomes the law of the case that evidence as to the custom or common use in the community, as to the appliances used in like employments, is competent and admissible. — (19-21)</p> <p>6. Negligence — Custom or Usage — Upon the question whether the master in the appliances provided for the usé of the servant has exercised reasonable care for the servant’s safety, the custom or general practice of other employers in the same line of employment, in the same community, is admissible. Comparison of the master’s appliances with some particular method or appliance should not be permitted. The comparison must be limited to common usage. — (26)</p> <p>' 7. Master and Servant — Master’s Appliances — That a hoist is a complete piece of mechanism properly constructed, and has often been used safely, does not necessarily make it such a machine as the master is under duty to provide. If, in order to make it reasonably safe, a particular appliance is necessary, it is the duty of the master to supply it, and the right of the servant to have it; and the master is not to escape liability for his default because, by possibility, the appliance might not have been used or might have proved ineffectual. — (31)</p> <p>8. Partnership — Liability for Negligence — Death of Partner — Mining partners whose negligence in the matter of the appliances used occasions the death of a servant are liable jointly and. severally. If sued in one action, the death of one partner does not work an abatement, nor render an amendment of the complaint, or a supplemental complaint, necessary. The suit may proceed to judgment against the survivor. — .(33)</p> <p>9. Parties — Joinder of Parties — Upon the death of one of two defendants sued as partners, the personal representative of the deceased cannot be joined with the survivor. — (33)</p> <p>10. Negligence — Question for Jury — Whether a common miner, unacquainted with machinery, who works underground, and who has been so employed for only seven or eight days, had assumed the risk of injury from alleged defects in the hoist, which was located at a distance from the shaft, and with the operation of which he had nothing to do, is for the jury. — (35, 36)</p> <p>11. Master and Servant — Servant’s Assumption of Risk— the servant cannot be declared to have assumed the risk of injury from a defective appliance, unless he knew, or by the exercise of ordinary care and circumspection ought to have known, not only the defect, but the danger. — (36)</p> <p>12. instructions — Question Not in issue — An instruction directed to and negativing what is not contended for by the opposing party is properly refused. — (40)</p> <p>13. Appeals — Harmless Error — The refusal of an instruction which cannot have affected the result, .is harmless. — (40)</p>

<p>1. Mechanic’s Lien — Statement—Items Improperly Charged —To include in the lien statement items which cannot be made the subject of the lien claimed will not defeat the lien as to those items for which the property is justly chargeable. — (43)</p> <p>2. -Material Furnished to Sub-contractor on Credit of Contractor — Where material is furnished to a sub-contractor, on the credit of the principal contractor, the material man may enforce a lien, to the extent of what remains due under the contract to suph principal contractor; but this must be established by evidence, not only of what the contractor has received, as compared with the 'contract price, but to what extent he has performed his contract. — (45-47)</p> <p>3. —^ Sub-contractor’s Lien — Contractor Abandoning — Where the principal contractor abandons his contract, and the landowner completes the building, the lien of the sub-contractor attaches, to the extent of the cost of completion, less by what remained due the contractor at the time of abandonment. — (46)</p> <p>Any indemnity received by the landowner from the sureties of the principal contractor is to be taken into account. — (46)</p> <p>.4. -Claim of Sub-contractor — Time of Filing — Under the Statute (Laws 1899, c. 118, § 9; 3 Mills’ Stats., Rev. Supp., § 2875; Rev. Stats., § 4033) the sub-contractor may file his lien statement at any time after the last material is furnished, or the last labor performed, and before the expiration of two months after the completion of the building. — (47)</p>

<p>Limitations — Statute Applies to .Way of Railroad — Under sec. 2251, Gen. Laws 1877 (pec. 3807, Mills’ Stats.), the state, board of equalization assesses the railways of the state, and their assessment includes the way. The 'taxes levied under such assessment are lawfully levied, and their payment hy the railroad company entitles it to the protection of the seven years’ limitation (Laws 1893, c. 118, sec. 6; Rev. Stats., sec. 4089). — (49, 50)</p> <p>An assessment by the local authorities, of the land traversed by the railroad, without excepting the railroad, is unwarranted; the taxes levied under such assessment are illegal. — (50-52)</p>

Chas. McCall, Judge. Mrs. C. Leona McKnight brought this action to obtain a decree dissolving the marriage relation existing between herself and Frank T. McKnight, one of the defendants. Her husband filed his answer, which consisted of a general denial and a counter-claim or cross-complaint, in which he asked for a divorce from her.

<p>1. Evidence — Competency—Self-serving Declarations — The question being whether the contract relied upon by the plaintiff had been performed, a letter of defendants’ agent addressed to plaintiff, and specifying alleged defects of performance, is inadmissible. — (69)</p> <p>2. Appeals — Harmless Error — Sustaining an objection to a question is harmless, where it elsewhere appears that the witness knew nothing of the 'matter, or by the answer to anothér question the testimony sought by the first is obtained. — (69)’</p> <p>So of the overruling of an objection to a question which is not answered.— (70)</p> <p>So of error in the instructions which cannot have misled the jury. — (71)</p> <p>3. Contract — Time of Performance — Delays Occasioned by the Other Party — One who has contracted to perform certain work within a definite period, is not to be prejudiced by delays occasioned by the acts or neglects of the other party, and in an action upon the contract, such neglects being alleged by the plaintiff to excuse delay in performance, and being denied by defendant, it is proper to instruct the jury as to the effect thereof. The matter is within the issues even though the defendant claims no compensation for such delay.— (70, 71)</p> <p>4. Instructions — Submitting Questions of Law to Jury — In an action upon a contract, performance being denied, the court after instructing the jury as to the meaning and effect of the contract and that plaintiff might recover if there had been a substantial performance in good faith, even though there might be slight inadvertent or unintentional defects, not affecting the use or value of the structure, charged further, that in determining whether there had been a substantial compliance, with the contract, they should give it a reasonable and practical construction, with respect to each item. Held, not objectionble as submitting the construction of the contract to the jury.— (71, 72),</p> <p>5. —'—To be Construed as a Whole — Ambiguity in one part of the charge may be cured by what is elsewhere made explicit. —(73)</p> <p>6. --Non-direction — An instruction that if plaintiff was entitled to recover, interest should be allowed from the day when the indebtedness became due, without stating when it fell due, is not erroneous, where no more specific direction was prayed. — (73)</p> <p>7. Trial — Rights of Counsel — Counsel are entitled to discuss the testimony and urge upon the jury the deductions which, from their viewpoint, it establishes or justifies, and this privilege must not be unnecessarily abridged. — (74)</p> <p>The record examined and held not to justify complaint in this respect. — (74, 75)</p> <p>8. Contract — Performance—Substantial Performance — Substantial performance, in good faith, of a contract to build a mill, entitles the party to an action thereon, although there may be slight inadvertent and casual defects not affecting the use or value of the structure. The contract price may be recovered, less by what it will cost to remedy such defects, — (72)</p>

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

<p>1. Contracts Construed — One who executes a contract, describing himself in the body of the paper as “agent, party of the first part,” and subscribes with the addition “agent for Bettie C. Payton,” who does not sign, binds himself individually; the words “agent, etc.,” are mere description.— (85-88)</p> <p>The fact that in truth the party so assuming to represent Payton was entirely without authority, fortifies this conclusion. ■■ — (88)</p> <p>2. Principal and Agent — Agent’s Liability to Third Person — ■ One who, assuming to act as agent for another, receives earnest money upon a contract not completed, and which the principal is unable to complete, is liable for the deposit. Payment to the principal after demand made by the depositor is no defense. — (89)</p> <p>3. Agent's Liability on Contract — Agent who contracts in his own name about the principal’s business,.binds himself, even though the other party is informed of the agency. — (86-90)</p>

<p>1. Pleading' — Replication—Effect—Matter in avoidance alleged in the reply is to be taken as controverted (code sec. 71). To accept as true, without any evidence of its truth, a reply alleging a prior action pending in another court, and, passing by. other issues of fact raised by the pleadings, to give a decree in favor of the plaintiff is error. — (93)</p> <p>2. Quieting Title — Plaintiff's Allegations as to Defendant’s Claims — Effect—The defendant is not concluded by the allegations of the complaint as to his claims. He may entirely repudiate the title asserted for him by the complaint, and present any and every other title of which he may be possessed. — (94)</p> <p>3. -Defendant Must Plead His Title, or be forever barred of asserting it. — (94)</p> <p>4. -Prior Action by Defendant — Effect—The defendant is not to be precluded from asserting his claim of title by the pendency of a prior action in ejectment instituted by his predecessor, asserting the same right. Especially is this so where the parties in the two actions are not identical, and the relief which may be awarded in the latter action must be essentially variant from any which can be obtained in the former. — (94, 95)</p>

<p>1. Principal and Agent — Ratification—Before one can be said to have ratified an unauthorized contract made on his behalf by another, it must appear that he was informed of such contract. The agent not having authority, entered into a written contract for the sale of the principal’s lands, expressed to be subject to the principal’s approval. The principal residing in another state, the agent wrote him that he had an offer for the property, and the sum .offered, but not informing him that an agreement of sale had been entered into, hor giving the name ■ of the proposed purchaser. The principal, in reply to this, forwarded the abstract of title, and wrote that if the agent would prepare a deed he would execute and return it, but that another person named should have an opportunity to bid for the property. Heid, there was no ratification of the contract. — (97-101)</p> <p>A ratification with a condition which is not accepted, is without effect. — (100, 101)</p> <p>2. -Burden of Proof — One relying upon a contract as ratified by the party on whose behalf it is made, has the burden of proving ratification. — (101)</p> <p>3. Pleading — Construction—Every pleading is to be construed as a whole, and not by the acceptance of an isolated averment. A bill for specific performance of a contract made by an agent without authority, averred, in general terms, ratification by the principal; but it also set forth with particularity the details and circumstances of the transaction, and, at great length, the correspondence between the agents and the principals relating to the matter. It was held that these allegations were not to be- rejected, in construing the pleading; that after such an elaborate setting forth of the transaction and the correspondence, it was not to be assumed that tljere was in existence some other letter or deed or paper of ratification, not alleged or adverted to; that the general averment of ratification must be regarded as merely the pleader’s conclusion, and as this was not supported by the special matter averred, the pleading, was bad on demurrer. — (102-104)</p>

<p>1. Appeals — What May Be Assigned for Error — Appellant will not be beard to complain of error wbicb operates to bis advantage. — (107)</p> <p>2. ——Party Concluded by Positions Taken Below — Where on bill to quiet title it was conceded by tbe plaintiff, in the court below, that the defendant was entitled to the land, unless effect was to be given to a tax deed under which plaintiff claimed, he will, upon appeal, be concluded by this concession.— (108)</p> <p>3. Quieting Title — Answer—Need Not Anticipate Plaintiff’s Title — Where the plaintiff alleges merely that he is the owner of the land, the defendant is not required to anticipate and assail his title, by the answer. Where in such case the plaintiff offers and relies upon a tax deed, the defendant may object to it, as void upon its face.— (107, 108)</p> <p>The defendant is not even required to' present a counterclaim or pray affirmative relief. — (107; 108)</p>

<p>Bail — Recognizance—Requisites—A recognizance taken by a justice of tbe peace under tbe statute (Mills’ Stats., § 2778; Rev. Stats., § 3878) need not contain the name of the surety in the body thereof. If subscribed by him, he is bound, though nowhere mentioned in the instrument. — (1-10, 111)</p> <p>Where the condition recited that the hearing of the charge against the accused “upon application .of the said Searles, Thomas C. Brown was continued,” to a day named, the name of Brown was rejected as surplusage. — (113)</p> <p>The name of the accused was “Surles.” In the recognizance it was written “Searles.” Held idem sonans, and the difference in orthography unimportant. — (113)</p> <p>The recognizance recited a charge of “grand larceny,” held to import the larceny of goods exceeding $20.00 in value. — (114, 115).</p>

<p>Error to Pueblo District Court — Hon. Charles A. Pike, Judge.</p>

<p>1. Public Service Corporations — Rules and Regulations— Public service corporations may prescribe regulations for the conduct of their business; but these must be just and reasonable, and not capricious, arbitrary, oppressive, or discriminatory.— (126)</p> <p>Such a corporation, occupying the streets with its appliances, and supplying both electric light and steam heat to the inhabitants of a city, may not prescribe by rule that only those who purchase from it the electric current for lighting their dwellings shall be served with steam heat, even though the production of the electric chrrent is the principal business of the corporation, and it uses for heating purposes only the steam exhausted in the production of electricity, and if compelled to furnish steam heat to those not purchasing the electric current, its business will be unprofitable. — (126-129)</p> <p>2. Pleadings — Judgment on the Pleadings — Where the defendant’s answer presents no defense to the case made by the complaint, or presenting an affirmative defense which is controverted by the plaintiff, the defendant offers no evidence, judgment goes for the plaintiff as of right. — (129, 130)</p> <p>3. Mandamus — Injunction—A citizen desiring the service of a public service corporation to which he is entitled but is not receiving, may apply by mandamus.— (131)</p> <p>Where the service is being furnished, but unreasonable conditions are prescribed for its continuance, an injunction is the proper remedy. — (131)</p> <p>4. Champerty — When a Defense — Champerty can be asserted only when the champertous agreement is itself sought to be enforced. — (131)</p>

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

<p>1. Writ of Error — By One of Several — Where one of several parties impleaded in. the court below prosecutes error, only those questions which affect him will be considered. — (137)</p> <p>2. Parties — Misjoinder—Waiver by Answer — Defendant demurs for misjoinder of parties, and his demurrer being overruled, answers. — (137)</p> <p>The error, if any, is waived. — (137)</p> <p>3. -Plaintiffs — Joinder of — The owner of a mine and his lessee may unite in an action against one who has trespassed upon the property. — (137)</p> <p>4. -Defendants — Joinder of1 — Two or more who have jointly trespassed upon a mine may be joined as defendants to an action for the trespass; and the purchaser of the ores who still retains 'any part thereof, or of the value thereof, may be joined with them, the prayer demanding that he be adjudged to hold as trustee. — (138-140)</p> <p>5. Ratification of a Tort — Effect—One who receives the proceeds of a trespass committed by another upon the properties of a third person, and retains it after full knowledge of the wrong, is liable, as if he had authorized or committed the trespass. —(138)</p> <p>6. Continuance — Absent Witness — Stipulation to Admit Testimony — An application for continuance is properly overruled, if the other party stipulates to admit that the witness, if present, would testify to the matters set up in the affidavit. — (139)</p> <p>Such admission does not preclude evidence to the contrary of what the affidavit attributes to the witness. Even the witness himself may he called for this purpose. — (139)</p> <p>7. Equitable Relief, granted in an action at law. — (141)</p>

<p>1. Contempt — Proceeding to Punish — How Far Reviewable— Where, in. a proceeding to punish a contempt, the court acts within its jurisdiction, mere irregularities are not reviewable on error. — (145)</p> <p>2. Contempt — Civil — Procedure — Disobedience of an order made in a civil action for the benefit of a party is a civil and not a criminal contempt. The provisions of the code (§§ 322-324) control the proceeding to punish it. The eontemnor is not entitled to notice of the application for the attachment, and where the contempt is charged by affidavit and he makes no denial thereof, the court need not examine witnesses, in the absence of a request therefor, by the accused. — <145, 147)</p>

<p>1. Criminal Law — Juror—Opinion as to Capital Punishment — Challenge1 — One who, being called as a juror upon the trial of an indictment for willful murder, and examined on the voir dire, answers that if accepted as a juror he would under no circumstances consent to the imposition of the death penalty, is not a competent juror, and a challenge for cause is properly sustained. — (149)</p> <p>2. -Summoning Talesmen — The sustaining of proper challenges, thus exhausting the regular panel, and the subsequent summoning of talesmen by open venire, is not error. — (152, 153)</p> <p>3. -Harmless Error — The exclusion of testimony admissible only to acquit the prisoner of malice or premeditation, is harmless, where the same testimony was brought out during the further, or previous examination of the witness. — -(153)</p> <p>4. --Instructions — Not Applicable to the Evidence — Where, upon the trial of an .indictment for murder, the evidence shows that the prisoner is either guilty as charged, of is innocent of any crime, instructions as to the grades of manslaughter are properly refused; — (155)</p> <p>5. Murder — A private person who, without any excuse or justification, in order to accomplish the arrest of another not shown to have been guilty of any crime, shoots, merely intending to wound, is guilty of murder if the shot takes fatal effect.— (155, 156)</p>

<p>Appeal from Pueblo. District Court — Hon. C. S. Essex, Judge.</p>

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

<p>’ 1. Injunction — Preliminary—Insufficient Complaint — A preliminary injunction may be retained pending the amendment of a complaint held insufficient on demurrer. A violation of the injunction, while so retained, may be punished, as a contempt. — (172, 173)</p> <p>2. Appeals — Error in Interlocutory Matter will not reverse the final judgment, where the substantial rights of the complaining party are not injuriously affected. — (172)</p> <p>3. -Finding on Conflicting Evidence will not be disturbed. — (176)</p> <p>4. Pleadings — Amendment—New Cause of Action — A complaint asserting priority to the use of the waters of a stream named was amended by changing the allegations as to the channel through which the water was diverted, but asserting as the ground of relief the same ultimate fact, namely the prior right of the plaintiff. Held, not to present a new cause of action.— (173, 174)</p> <p>Whether, after answering an amendment and going to trial, the defendant may contest the propriety of the amendment, qusere. — (175)</p> <p>. 5. Water Rights — Abandonment — Mere non-user of an appropriation of water does not establish abandonment. An intention to abandon must be present. The burden of proof is on the party asserting it. — (175, 176)</p> <p>6. -Implied Limitation as to Enjoyment — A right to the use of water is limited, both as to time and volume, by the needs of the party, and the law reads this limitation into a decree declaring the right. — (177)</p>

<p>1.. Insurance — Policy—Construction—All life insurance contracts receive the same construction, and are subject to the same statutory regulations and limitations, unless expressly exempted. — (180,181)</p> <p>■-An indemnity contract denominated a “BENEFIT CERTIFICATE,” evidencing the obligation of the party issuing it to pay to a sister of' a party named therein, upon his death, a sum of money, held to be a policy of life insurance. — (180)</p> <p>2. -Suicide — The statute (Laws 1903, e. 119) is directed against suicide as a defense to an action on a life policy in all cases, without regard to the character or class of the insurer. —(181)</p> <p>3. -Suicide Contemplated by Insured in Taking the Policy — The judgment in this case does not exclude the defense in a case where the insured contemplated suicide at the time of taking out the policy. As to such a case, the question is still an open one. — Gabbert, J. — (185)</p> <p>4. Statutes Construed — A statute providing that “corporations not for pecuniary profit, founded under this act * * *</p> <p>intended to benefit the widows, orphans, heirs and devisees of deceased members thereof and where the members receive no money as profit, or otherwise, shall not be deemed insurance companies” (Mills’ Stats., § 638; Rev. Stats., §1015) has no application to a corporation not organized under this statute, or one insuring those not of the classes named therein. — (182)</p> <p>Mills’ Stats., § 2238, and 3 Mills’ Stats., § 2229, simply recognize the right of benevolent societies to issue indemnity contracts or contracts of insurance, on the assessment plan, without organizing under the statutes for the organization of insurance companies for profit. They have not the effect to except "them from the statute prohibiting suicide as a defense to an action on the contract (Laws 1903, c. 119). — (183)</p> <p>5. Constitutional Law — Suicide as a Defense to a Policy, of Life Insurance — Chapter 119, Laws 1903 (Rev. Stats., § 3142) is a valid exercise of legislative power. — (183, 184)</p> <p>6. Contract — Validity — Conflict with Statute — A contract provision in violation of an express .statute announcing the public policy of the state, is void. The statute cannot be waived or set aside by private agreement. — (184)</p>

<p>1. Trusts — Definition—The holding of property by one for the use of another is a trust in its simplest form. — (189)</p> <p>2. -Resulting — Action to Enforce — Trial by Jury — One having in his hands money to which another is entitled, invests it, without the other’s consent, in the purchase of lands, taking title in his own name; a resulting trust arises in favor of the latter. A bill brought by him, praying the establishment of a lien upon the lands, and the sale thereof for the satisfaction of his demand, is an equitable action. The issues are to be tried by the court. — (189, 190)</p> <p>3. Trial by Jury — Equitable Action — The right to a trial by jury depends, not upon the character of the issue, but the character of the action. That the plaintiff demands a money judgment is not decisive that the action is one at law. — (190)</p> <p>Plaintiff averring that defendant holding certain corporate stock, to an interest in which plaintiff was entitled, had received certain moneys as dividends thereon, and other moneys arising from the sale of the properties of the corporation, demanded judgment for these moneys. Held, an equitable action and the issues properly tried by the court. — (191, 192)</p> <p>4. Statute of Frauds — Executed Contract — A verbal agreement to advance money in consideration that the one making the advance shall be entitled to an interest in certain corporate stock, in case of the recovery thereof in a contemplated action, is not open to objection on the ground of its verbal character, under the statute of frauds (Mills’ Stats., § 2025; Rev. Stats., § 2666), after the money has been paid and accepted. — (193, 194)</p> <p>5. Damages — Interest—Independent of any contract or statute, one who has converted to his own use the moneys of another, may, in equity, be required to pay damages equal to legal interest thereon. — (194)</p> <p>6. Cases Overruled, Distinguished or Explained — Dexter v. Collins, 21 Colo. 455; Hilburn v. Mercantile Bank, 39 Colo. 189; and Young v. KimDer, 44 Colo. 448, distinguished. — (194)</p> <p>7. Contract — Consideration—Inadequacy—The allegation of a promise to make over a large interest in the capital stock of a mining corporation, in consideration of the advance of a trifling sum of money to enable its recovery, will not be discredited on the ground of the inadequacy of the consideration, though the stock afterwards turned out to be of very great value, where it is shown that at the time of the promise the properties of the corporation disclosed no reserve of ore, and the conduct and expressions of the parties manifested that the stock was, at the time, regarded as of little value. The testimony examined and held sufficient to sustain plaintiff’s allegation as to the making of the contract. — (195, 196)</p>

<p>1. Quieting Title — If the plaintiff’s title is put in issue, he must establish it hy competent evidence.' — (201)</p> <p>And proof of plaintiff’s possession alone will not suffice, though defendant gives no evidence. — (201, 202)</p> <p>2. -Answer — Averment that “defendants are the owners in fee simple by title from the United States,” is the averment of an ultimate fact, and sufficient to put plaintiff on proof of title and possession. — (201)</p> <p>And defendant may assail the validity of a tax deed offered by plaintiff to establish title, where the answer puts the plaintiff’s title in issue, though his answer merely avers its invalidity, without disclosing the particular grounds upon which the document is assailed. — (201)</p> <p>3. Pleadings — Waiver—Plaintiff, who replies to the defendant’s answer and proceeds to trial, without' objection, will not be heard to complain that the answer was improperly filed. — (202)</p> <p>4. Tax Deed — Void—A treasurer’s deed reciting that many non-contiguous tracts of land were subject to taxation, that taxes assessed against the same remained due and unpaid, that the treasurer, in conformity with the statute, exposed to public sale “the real property above described,” etc., and that a party named, “having offered to pay” a sum mentioned, “being the whole amount of tax, interest and costs then due and unpaid on said real property for the whole of each tract, etc., which was lowest quantity bid for, the said properties were stricken off to him at that price,” shows a sale en masse. The deed is void, and does not set in motion the statute of limitation. —(200)</p> <p>5. Will — Foreign Probate — Attention called to the doctrine, of Sayre v. Sage, 47 Colo. 559. — (202)</p>

<p>1. Contract — Substantial Performance — An attorney agrees with his client to bring and prosecute an action for a contingent fee. The action being instituted, the client himself adjusts the matter, receiving all that could have been recovered by the successful prosecution of the action. Thei contract must be regarded as substantially performed, and the attorney is entitled to the stipulated fee. — (205, 206)</p> <p>So where it is part of the contract that the attorney shall defend an anticipated action, and this controversy is also adjusted by the client, without action brought, the attorney being at all times ready and willing to defend the action in case one had been instituted, the contract, as to this feature of it, is regarded as performed by the attorney. — (205)</p> <p>2. Wrong Without Injury, gives no action. Where the defendant to an action for an attorn'ey’s bill counter-claimed, alleging negligence of the attorney in respect to another employment, but there was no evidence of any damage sustained, the counter-claim was properly withdrawn from the jury. — (207)</p> <p>3. Trial — Directed Verdict — Where there is no substantial conflict in the evidence and the court would be under duty to set aside a verdict for the defendant, it should direct a verdict for the plaintiff. — (207)</p>

<p>1. Water Rights — Adjudication of Priorities — Appeals—Publication of Order Allowing — Under the statutes (Mills’ Stats., §§ 2405, 2428; Rev. Stats., §§ 3286, 3308), the order allowing an appeal from a decree establishing priorities to the use of water, must be published in the county in which the court sits. Publication in another county, though one into which the water district extends, will not suffice. The doctrine of Wadsworth Ditch Company v. Brown, 39 Colo. 57, applies to an appeal from a decree declaring priorities, as well as from one given in a proceeding to change the point of diversion. — (209, 210)</p> <p>2. Appeals — Discontinuance.— Where a publication required by statute in order to the prosecution of an appeal, has not been made, and the time allowed for it has long elapsed, the appeal will be dismissed. — (210)</p>

<p>Error to El Paso District Court — Hon. James Owen, Judge.</p>

<p>1. Insurance — Conditions of Policy — Waiver—Defendant insured plaintiff’s building. It was situate on leased ground. No inquiry as to the title was made by the insurer, and no representations given by the insured. There was no written application for the insurance, ‘and the insured made no representations, and was guilty of no fraudulent concealment to obtain the insurance. Held, that a condition that the policy should be void, “if the subject of insurance be a building on ground not owned by the insured in fee simple,” was waived. — (218)</p> <p>2. Appeals — Finding on Sufficient Evidence will not be disturbed — (219)</p>

<p>1. Criminal Law — Testimony of Accomplice — Corroboration —Evidence of circumstances, or of a confession, is admissible to corroborate the testimony of an accomplice.— (221)</p> <p>The testimony of an accomplice held sufficiently corroborated to support a conviction. — (221)</p> <p>2. -Larceny — Property in the Goods — An information for the larceny of ore alleged the property in a certain company. The testimony was that the ore came from the properties of the company named; that while it was being operated under leases, the ore, by the terms of the leases, remained the property of the company until settled for, and that it was shipped in the name of the company. Held, there was no variance in this respect. — (222)</p> <p>3. -Corporate Capacity of Corporation Alleged as Owner —It is sufficient if the prosecution shows that the corporation named was a de facto corporation acting as such; and this may be made to appear by reputation, or in the absence of objections, by the testimony of any one cognizant of the fact. — (223)</p> <p>4. -Burglary — Of Storehouse — Evidence — The information charged the breaking, etc., of a “storehouse.” The testimony showed that the apartment broken into was used for storing machinery, supplies, and high-grade ore; and it was termed by some of the witnesses sometimes a storeroom, and sometimes a shafthouse. Held, there’was no variance. — (224-226)</p> <p>5. -Evidence — Witness—Accomplice—Cross-Examination —Where a confessed accomplice of the accused testifies for the prosecution, great latitude in cross-examination should be allowed; but the matter is within the sound discretion of the judge presiding at the trial. The weight of authority is, that the accomplice is not to be asked if he has been arrested, informed against, or imprisoned, for a distinct offense of which he has not been convicted.' — (227, 228)</p> <p>6. -Accomplice as Witness — Discrediting—The record of an accusation against the accomplice, which has no connection with the charge under investigation, is not admissible as tending to show an agreement of the prosecutor not to proceed against the accomplice upon such independent charge. — (227-231)</p> <p>7. Instructions — Objections and Exceptions to, must be made and announced at the time when the jury is charged. Even a custom of the court will not, it seems, entitle the party to present objections to the charge, and take exceptions thereto after the termination of the trial. — (232, 233)</p> <p>8. Error Not Assigned — The denial by the court below of a motion, not assigned for error, will not be considered. — (233)</p> <p>9. Verdict — Misnomer of Juror, manifest at the reception of the verdict and not then suggested or objected to by the accused, will not, when no prejudice to the accused appears, suffice to reverse judgment of conviction. — -(233, 234)</p>

<p>1. Residence — How Acquired — Residence is not acquired by-mere intention. The purchase, by a -citizen of another state, of a plantation in Colorado, with a bona fide purpose to remove thereto, and make it his home, as soon as possession thereof can be acquired, he in the meantime retaining his former home, does not constitute him a resident of this state, though he afterwards, pursuing his original purpose, removes to this state and establishes himself here. His residence and his capacity as an elector relates to the day of his actual settlement in Colorado, and not to the day when he formed the purpose.— (236-239)</p> <p>2. Cases Overruled, Distinguished or Explained — Kellogg v. Hickman, 12 Colo. 256, distinguished. — (239, 240)</p> <p>3. Evidence — Admissibility—Secrecy of the Ballot — Where the result of an election is in question and the law provides no means by which the ballot of any voter can be identified, one who is shown to have voted, not being a qualified elector, may be required to testify as to how he voted; and other evidence upon the point is admissible. — (243, 244)</p>

<p>1. Taxation — Special Assessments — Right of Property Owner to be Heard — To the validity of an assessment of private property to pay the cost of a public' improvement, the statute authorizing it must vest in the proper public authorities power to -fix the time and place of hearing objections thereto, to notify -the property owner and, in case of injustice shown, alter the appraisement, and afford proper relief in the premises. — (251, 252)</p> <p>Private property is not to be condemned to a public charge of this character,, unless the proprietor has had opportunity to present his objections thereto, and has actually been heard, or has waived his right to be heard. — (252)</p> <p>2. -Of the Notice — It seems that, though the notice t'o property owners is in strict compliance with the statute, yet, unless it appoints a certain time and place for the hearing,- it is fatally defective. — (248)</p> <p>3. -Of the Hearing — Where the body having authority to correct errors and inequalities in the assessment renounces such authority and refuses to hear testimony, the proceeding cannot be regarded as a hearing, and the assessment is void. — (249, 250)</p> <p>4. --Relief in Equity — Equity will, at the suit of the property owner, annul the' assessment, ascertain the-just amount chargeable against the property, and, upon payment thereof into court, restrain the collection of the residue. — (254-256)</p> <p>5. --Tender — The plaintiff in such case is not required to tender any certain sum. An offer to do equity is sufficient. — (255)</p>

<p>1. Eminent Domain — Assessment of Damages — Special Value for Particular Uses, is to -be considered in the assessment. —(260, 261)</p> <p>2. --Evidence — View by the Jury — Whether the view by the jury is regarded as affording evidence in itself, or as merely to enable the jury to better understand and apply the evidence given by the witnesses, in either case the assessment is to be made upon the evidence, and it is not error to so charge without calling the attention of the jury to their view of the premises. —(262)</p> <p>3. -Market Value — In defining market value, it is proper to inform the jury that it is such a price as the property will sell for, “where there is a demand.” — (262, 263)</p> <p>4. --Verdict — The statute (Mills’ Stats., § 1732; Rev. Stats., § 2432) is mandatory. The damages to the land not taken, and the benefits, must be separately stated. — (265)</p> <p>5. -Evidence of Benefits — Not fixing any definite amount or value of the supposed benefit, in dollars, is to be rejected. — (265)</p> <p>6. -Respondent’s Pleading, Fixing and Praying an Amount of Damages, not withdrawn or amended, concludes him; an award of a greater sum will be reduced to the amount of his statement. — (265-267)</p> <p>7. -Costs — Costs are not allowed to the petitioner, even upon a successful appeal. — (268)</p> <p>8. Appeals — Harmless Error — In condemnation proceedings, the court instructed th'e jury that, if the land had no market value, they should asséss it at its true and actual value. There being evidence of a market value, and the assessment not exceeding this, held that the instruction, if erroneous, was harmless. — (268)</p> <p>9. Instructions — To Be Considered as a Whole — Error in one point of the charge is sometimes corrected by a subsequent direction. — (263)</p> <p>10. -Repetition — The court cannot be required to reiterate an instruction already given in substance, though in other words. — (264)</p>

<p>Witnesses — Competency—Where the sole defendant is made party as administrator, the plaintiff is incompetent to testify in his own hehalf, for any purpose (Mills’ Stats., § 4816; Rev. Stats., § 7267). — -(270-273)</p> <p>The circumstance that the action is upon a bond in which one still living hut not joined was surety, affords no ground to make an exception to the rule prescribed by the statute. — (274)</p>

<p>1. Interest — Under the statute (Mills’ Stats., § 2252; Rev. Stats., § 3162), a party furnishing supplies to a corporation pursuant to a written contract providing that the amount furnished in each calendar month shall be paid for on a day certain in the succeeding month, is to be allowed interest on each monthly amount from the day it matures until payment made. — (276)</p> <p>2. -Payment and Acceptance of Principal — Effect—Payment and acceptance of the principal of a debt extinguishes the interest thereon, in the absence of a special agreement to pay it. —(276, 277)</p> <p>The evidence examined and held insufficient to show such agreement. — (277-279)</p> <p>3. Receipt in Full — Effect—A receipt “in payment of above account” is a complete settlement, barring fraud or mistake, and precludes a subsequent claim of interest on the ground that the amount was not paid promptly at its maturity. — (279, 280)</p>

<p>1. Appeal — County to District Court — Effect—An appeal to the district court from a judgment of the county court does not vacate the judgment, but merely suspends its execution. — (283)</p> <p>2. -Appeal Bond — Conditions—Under the statute (Mills’ Stats., § 1086; Rev. Stats., § 1537), where appeal is taken from the county court to the district court, upon a judgment not for money, and the bond is upon the conditions prescribed for an appeal from a money judgment, the appeal must be dismissed. —(282, 283)</p> <p>3. -Right of Appellant to Discontinue' — The spirit of the code provision (sec. 166) does not entitle one who appeals from the county to the district court, to discontinue his action without prejudice, in the district court. — (283)</p> <p>4. Maxims — It is of public interest that there shall be an end of litigation.— (284)</p>

<p>1. Real Estate Broker — Employment—Effect — Where the employment of a broker to sell real estate does not assume to confer an exclusive authority nor prescribe a time within which the sale shall be effected, the landowner may himself dispose of the property at any time, upon such terms as may be satisfactory to him.- — (286)</p> <p>But if, before any such sale, the broker produces a purchaser ready, willing and able to purchase at the price and upon the terms fixed in the broker’s employment, the owner is not at liberty to complete the sale himself, or sell to another customer, denying the broker’s commission. — (286)</p> <p>A sham sale to another person who completes the transaction with the broker’s customer, will be disregarded. — -(288)</p> <p>2. Pleadings — What Must Be Specially Pleaded — A broker suing for his commission, is met by evidence of a sale made by the landowner to another party, who afterwards conveyed to the broker’s customer. The answer made no allusion to this sale. It was held that the broker was entitled to assail the good faith of it, though he had not pleaded such lack of good faith — (287, 288)</p> <p>3. Pleadings — Construction—A real estate broker suing for commissions, alleges the production by him to his principal of a customer ready and willing to buy, “and who did buy,” the premises, at the price and upon the terms prescribed in the broker’s employment. Held, equivalent to an averment that the customer was ready, willing and able to purchase. — (288)</p>

<p>1. Bill of Exceptions — Seal—A bill of exceptions not bearing the seal of the judge who attests it, will not he considered for any purpose. — (289)</p> <p>2. Exception! — When Necessary — Error assigned upon - the insufficiency of the evidence will not be considered where no exception to the judgment was reserved. — (290)</p>

<p>1. Bill of Exceptions — Defects in, no grounds to quash the •writ of error, or affirm the judgment. — (292)</p> <p>2. Eminent Domain — Petition — The petition need only allege the ultimate facts which entitle the petitioner to initiate the proceedings, and not the evidence to prove them, e. g., where the petition is presented by an incorporated town, through its mayor, and verified by him, and avers a vote of the town to establish waterworks, that the board of trustees has selected the premises in question, etc., it need not set forth how the mayor is authorized to act, or that he has authority to appropriate the funds of the town. — (292, 293)</p> <p>3. -Order for Possession — Error in, not ground to reverse the final order. — (294)</p> <p>4. -Petition by Town — Review of Municipal Action — Where the petition is presented in the name of a town, the action of the town council in selecting the premises in question will not be reviewed by the court unless it clearly appears to be fraudulent or unreasonable. — (294, 295)</p> <p>5. -Of the Answer — An averment that the selection by the town of the particular premises sought to be taken “was not made in good faith,” is a mere conclusion of. the pleader, and goes for naught. — (295)</p> <p>Where the petition shows that the premises in question have heen selected by the authorities of the petitioner town, as the site of a power plant for the operation of a system of public waterworks, a mere denial of the power of the town to condemn the premises for such a purpose, or that the use is a public one, presents no question of either law or fact. — (297)</p> <p>6. --Damages to Property Not Taken — The landowner is not entitled to an allowance, in respect of the residue of his property, not taken, for noise, smoke and vapors which will be generated by the operation of the public waterworks for which the lands are sought to be taken. These inconveniences are suffered by the general public, and no private person is entitled to any immunity or advantage in respect thereof. — (300)</p> <p>But where the premises sought are used by the landowner as the means of access to the premises not taken, the injury occasioned by the taking will, in this respect, be special to him, and he is entitled to compensation therefor. — (SOI, 302)</p> <p>7. -Time of Appraisement — Under the statute (Mills’ Stats., §1731; Rev. Stats., § 2431), the actual value of the properties taken, estimated at the time of the appraisement, must he allowed. — (302)</p> <p>8. Municipal Corporations — Presumption of Corporate Capacity — Where it appears that a town, acting as such, has, for more than twelve years, exercised the powers of a municipal corporation, and for more than two years has had a full complement of officials, exercising their offices,. the regularity of its organization is conclusively presumed. — (298)</p> <p>9. Bill of Exceptions — The opinion in Big Kanawha v. Jones, 45 Colo. 381, referred to as prescribing the proper formalities in the preparation and certification of a bill of exceptions. — (302)</p> <p>10. -Objections to — Waiver by Delay — Objections taken to a bill of exceptions more than two years after the service of the sci. fa. to hear errors, come too late. — (303)</p>

<p>1. Pleadings — Amendments—Laches — An unexplained failure to present an amendment to a pleading for six months after its preparation, is sufficient ground to deny leave to file it. — (305)</p> <p>It is not error to reject an amendment, offered at the end of the trial, where the matter thereof is immaterial .and manifestly must have been within the knowledge of the party at the time of the preparation of his pleading, and there is no showing that-the omission was inadvertent. — (305)</p> <p>2. Contracts — Alteration of Writings — Defendant entered into a written agreement with plaintiff to perform certain repairs on her buildings. Plaintiff, to enable him to purchase the necessary material, advanced him a sum of money; for which he executed his promissory note. In an action on the note, it appeared that plaintiff, after the execution of the papers, had written across the top of a copy of the contract furnished to defendant, words importing that it was to be completed “within ninety days.” Held, that this memorandum had not the effect to avoid the note. — (305; 306)</p> <p>3. Contract — Abandonment — Effect — Nothing is to be allowed for part performance of a contract afterwards voluntarily abandoned by the party, merely because of the dispute as to its construction. — (306)</p>

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

<p>1. Damages — Duty of Court to Instruct as to Elements — It is the duty of the court to instruct as to the elements of damage, and the basis upon which the assessment is to be made, even though no such instruction is prayed. — (309, 310)</p> <p>2. --- To Lands — Measure —In an action for damages to land, where defendant’s reservoir gave way and covered plaintiff’s lands with sediment, the measure of damages is the difference in value of the land immediately before, and immediately, after, the occurrence of the injury. — (310, 311)</p> <p>3. --Evidence as to — In an action for an injury to a reservoir, evidence that some months after the injury the plaintiff had expended a specified sum in repairs, without any proof that the expenditure was a reasonable one, or was made necessary by the conduct of the defendant, affords no basis for an estimate of damages. — (311)</p>

<p>1. Contract — Parties—New Parties Coming In — A stranger to a contract cannot become party thereto without the consent of both the original parties. — (315)</p> <p>2. --Sureties — Nor can a stranger become surety for one of the parties without like consent. — (315)</p> <p>Such attempted suretyship does not bring the case within section 13 of the code. — (315)</p> <p>3. Parties — Pleading—Misjoinder—Plaintiff and one of the defendants had entered into a contract to be performed in the future. At a later date the other defendant, upon a new consideration, by endorsement upon the contract, assumed joint liability with the maker, and guaranteed payment of the contract, when due. Held, that a complaint against both defendants, counting upon the original contract and the guaranty, exhibited a misjoinder, both of the parties and causes of action. -(314-316)</p>

<p>1. Criminal Law — Confessions — No inflexible rule can be prescribed for determining the voluntary or involuntary character of an alleged confession. It must be ascertained by consideration of the circumstances under which the supposed confession was made. — (318)</p> <p>That the confession was elicited by questions propounded by an officer, no threats or promises being made, or inducements held out, is not sufficient to exclude it. — (322)</p> <p>It is not required that the prisoner should be warned that his voluntary statements may be used against him; though this is the better course. — (322)</p> <p>Testimony given at a coroner’s inquest, by a prisoner, after he has been advised of his rights, and duly cautioned, is admissible against him — (323)</p> <p>Tuttle’s case, 33 Colo. 243, distinguished. — (324)</p> <p>2. -Conspiracy — Liability of Conspirators — One who engages in a conspiracy to rob, in the carrying out of which life is taken, is as guilty of the murder, even though not present, as if he had given the fatal blow; and this, even though, in entering into the conspiracy, it was not in his thought that murder would be committed. — (325)</p> <p>3. --Insanity as a Defense — Testimony that the prisoner frequently became intoxicated, there being nothing to show that he was in that condition when he entered into the conspiracy which resulted in the murder charged, or that he was so disordered in intellect as not to. comprehend the effect of what he was do mg when he confessed his part in the crime, does not call for an instruction upon the law of insanity. — (325, 326)</p> <p>4. -Instructions — Murder—Manslaughter—Where the evidence shows that the accused, if guilty at all, committed murder of the first degree, the court is not required to charge as to the law of manslaughter. — (326)</p> <p>5. -Harmless Error — A mistake of the court in describing the means by which death was produced, in an instruction defining deliberation, is harmless. — (326)</p> <p>-So of an omission to charge as' to the effect of exculpatory statements in a confession, where no such charge is requested. — (326)</p> <p>-Or a failure to charge that circumstantial evidence is to be received with caution. — (326)</p> <p>-Or to refuse to permit the prisoner to show by cross-examination of one of the people’s witnesses that he had urged him to look for those directly guilty of the crime, where it appeared that he had known of the commission of the murder for some time before his interview with the witness. — (327)</p>

<p>Error to Delta District Court — Hon. Sprigg Shackleford, Judge.</p>

<p>1. Dedication of Lands to Public Use — The dedication of lands to a public use will not be inferred from equivocal or ambiguous acts or declarations of the landowner. His intention to devote his property to the public use must clearly appear. —(341)</p> <p>Plaintiff was solicited to give a way through his lands to a railway company, and consented. The width was not stipulated. After the railway had been constructed and operated for at least two years, he executed a deed granting a way of 100 feet in width. Later he subdivided the land into lots and blocks, and caused a plat of the subdivision to be recorded, setting down therein the track of the railway, with an unplatted space upon each side of it. There was nothing to show why this space was not subdivided, or to what use it was devoted. Held, that no dedication was to be inferred, from these features of the plat, nor from the erection by plaintiff of a fence along the line of the unplatted strips, to mark the lines of the blocks. — (341, 342)</p> <p>2. Estoppel by Conduct — To an action of ejectment against a railway company to oust it from land occupied by its roadbed, the defense of estoppel by acquiescence of the landowner may in a proper case be interposed. But .it must be made to appear that he actually acquiesced in the construction of the railway, or that by reason of his affirmative acts, laches or conduct, it is inequitable that he should insist upon restoration of the possession. The defense is based upon considerations o'f the interest of the public; and the landowner will not be restricted to compensation where he has at all times insisted upon his right, and applied to the courts, with reasonable diligence.' — (343-346)</p> <p>Plaintiff in 1891 conveyed to defendant a way for its railroad 100 feet in width. In 1894, the defendant erected fences upon each side of its railway 100 feet distant from the center line. For eight or nine years thereafter the defendant occupied the way granted, without otherwise passing the limits of the grant. It then began to excavate for gravel and continued this excavation beyond the bounds of the grant, using the gravel to improve other portions of its road. Plaintiff, as soon as informed of this, protested, and continued his protests, until advised by the defendant that it claimed a way of 200 feet in width, when he instituted an action of ejectment. Held, that plaintiff was entitled to recover possession and damages. — (348)</p> <p>3. Evidence — Measure of Proof Required — To estop a landowner from the recovery of his lands, by mere acquiescence in the construction of a railway thereon, the evidence must be clear and decisive — (346)</p> <p>4. Pleading — What Must Be Specially Pleaded — An estoppel in pais must be specially pleaded.— (343)</p> <p>5. Appeals — What May Be Assigned for Error — A judgment injurious and erroneous only as to the successful party cannot be assigned for error by his adversary.— (348)</p>

<p>1. Local Option — Frequency of Elections — Though a town has, upon an election duly held, refused to become anti-saloon territory, one of the precincts of the county of which the town is a part, may vote upon the question immediately thereafter, without reference to the limitation contained in the statute (Rev. Stats., sec. 4102).— (351, 352)</p> <p>2. -Petition — Signatures — Residence of Voter — The purpose of the statute (Rev. Stats., sec. 4096) requiring the residence of the voter to be set down opposite to his signature to the petition, is to enable anyone interested in the question to readily ascertain whether, in fact, the voter resides at the address given, and thus prevent fraud. — (353)</p> <p>The precinct, city or town, post office, county or state, need appear only in the body of the petition. The street and street number may be set opposite the subscribing voter’s name, in any case, though the statute requires this particularity only in cities having a population of over 10,000; and though unnecessary in the particular case, they will not, in considering the sufficiency of the petition, be rejected. — (354)</p> <p>Where the signature of the first subscriber is followed by words indicating the street and number of his residence, ditto marks thereunder, opposite the names of the subsequent subscribers, are a compliance with the statute.' — (354-357)</p> <p>The signature of the subscribers to the petition, and their residences as therein set down, are under the statute (Rev. Stats., sec. 4096) to be taken as true, where no evidence to' the contrary is presented. — -(355)</p> <p>3. Abbreviations — Under a statute requiring the residence of each subscriber to a statutory petition to be “written” opposite his signature, ditto marks, opposite his signature, and under a street or street number, set above, is a compliance with the statute. — (357)</p> <p>And abbreviations, it seems, may be used, as “sec.” for “section.” — '(352)</p>

<p>1. Land Department — Review of Decisions by the Courts— If the officers of the Land Department err in the construction of the law applicable to the facts of the case, their decisions maybe reviewed and annulled by the courts. — (371)</p> <p>-So, if the decision is procured by fraud. — (371)</p> <p>If they err as to matter of fact, the sole remedy is hy appeal to another officer of the department. — (372)</p> <p>Error in law must be clearly established, and it must be shown that the party complaining was, hy reason of such error, deprived of substantial rights.— (373)</p> <p>2. Appeals — Transcript of Record — Maps, Exhibits, etc.— Maps lodged in this court at the time of filing the record of the lower court, but not referred to in the transcript or the clerk’s certificate thereto, are no part of the record, and will not be considered. — (373)</p> <p>3. Pleading — Manner of Averment — Certainty — An averment that certain maps were “mere duplicates” of other maps, expresses only the opinion of the pleader. — (374)</p> <p>So, an averment that affidavits were filed “alleging,” or “tending to show” certain matters. — (374)</p> <p>A complaint seeking to review the decision of the Secretary of the Interior upon conflicting claims to the site of a reservoir which fails to disclose the Secretary’s opinion or how he regarded the questions involved, is insufficient. — (374, 375)</p> <p>4. Public Lands — Reservoir Site — Effect of Filing Thereon ■ — The approval hy the Secretary of the Interior of a filing upon lands in the public domain, as the site of a reservoir, segregates such lands, and no subsequent entry thereof, or claim thereto, can be made, until such first selection and filing is, in some manner, annulled.— (376)</p> <p>5. Department Decisions — Effect — The approval by the Land Department of a selection and claim made hy a corporation to public lands, as the site of a reservoir, necessarily implies that the corporation has a legal existence, and has complied with the laws and customs regulating the location of reservoirs, and the appropriation of waters therefor. — (376)</p> <p>The corporation is entitled to possession of the site so awarded to it, until, in some propér proceeding, its claim is set aside by the sovereign authority. — (377)</p> <p>The rights so awarded to the corporation may be effectually transferred. — (377)</p> <p>The department may, notwithstanding an adverse claim and filing, permit the assignee of the corporation to present an amended or new claim, enlarging the original boundaries. — (377, 378)</p> <p>6. Pleading — Certainty—Where complaint alleges that the Secretary of the Interior considered the question of the legal existence of a corporation, hut fails to set forth the evidence upon which such consideration was had, or the conclusions relative thereto, it will he presumed the corporation had a legal existence. — (374)</p>

<p>1. Appeals — County to District Court — Amendments — Increase of Ad Damnum — In an appeal from the county court to the district court, all proceedings are de novo. Questions which might have been agitated in the county court may be presented, though not presented in the county court. But the cause remains the same; the jurisdiction of the district court depends on that of the county court, and an amendment of the complaint, increasing the damages demanded to an amount in excess of the jurisdiction of the county court, cannot be allowed. — (385-387)</p> <p>2. Common Carrier — Contract Limiting Liability — Agreements between the carrier and consignor of goods limiting the liability of the carrier, or prescribing conditions upon which it shall attach, are, even when valid, strictly construed. A covenant by the shipper of live stock that “as a condition precedent to his right to recover for any loss or injury to such stock he will give notice in writing of his claim to some officer, etc., or to the nearest station agent, etc., before said stock is removed from the place of destination * * * and before said stock is mingled with other stock,” has no application, where the shipper’s claim is for a loss occasioned by a decline in the market price, during unreasonable delay in the carriage. The notice is required to be given only where the claim is for physical injury to the animals. — (389)</p> <p>Even where the contract provides that the shipper assumes all risk of injury which the animals may receive “in consequence of any of them being wild, unruly, weak, or, by reason of maiming each other or themselves,” the carrier will be liable if injuries of this character occur by reason of unreasonable delays in the carriage and the consequent fatigue, exhaustion and restlessness of the animals. — (390)</p> <p>A common carrier cannot, by contract, avoid liability for his own negligence. — (387)</p> <p>And an action may be maintained against the carrier upon his common-law liability for negligence, notwithstanding the shipper may have entered into a special contract with him. Such contract, even if valid, is matter of defense. — (387)</p> <p>3. Evidence — Competency—A witness familiar with the published market reports which are commonly accepted by dealers as authentic, and by which their transactions are governed, may, from the knowledge so acquired, testify as to the market value of a particular commodity on particular days.- — (388)</p> <p>Willard v. Mellor, 19 Colo. 534, distinguished.— (391,' 392)</p> <p>4. Common Carriers — Liabilities for Delays in Carriage — Unnecessary delays in the carriage of live stock, and the consequent shrinkage in weight, or other material damage, charges the carrier. The burden rests upon him to show, either that he was not responsible for the delay, or that he was exempted by a valid special contract. — (391)</p>

<p>1. Witnesses — Competency—Under see. 4816 of Mills’ Stats. (Rev. Stats., § 7267), a stockholder in a national bank is not competent to give testimony in behalf of the bank, to establish a claim against the estate of a decedent, except as to facts coming under the exceptions enumerated in the section. — (395)</p> <p>2. Statutes — Adopted from Another State — Construction'—In adopting the statute of another state, we adopt the construction theretofore given it in the courts of that state. — 13.96)</p> <p>3. Appeals — Harmless Error — Where the cause is tried without a jury, the admission of incompetent evidence will not reverse, if, rejecting what was so improperly received, there remains competent evidence uncontradicted sufficient to sustain the judgment.- — 1397, 398)</p> <p>4. Evidence — Account Books — In an action by a bank against the personal representative of the former cashier of the bank, since deceased, the books of the bank, shown to have been kept under the direction of such deceased cashier, are admissible to show false entries therein, and, in connection with other testimony, the misappropriation of the funds of the bank. — (398, 399)</p> <p>The provisions of sec. 4817, Mills’ Stats. (Rev. Stats., § 7268), have no application to such a case. — (398)</p> <p>5. --Expert — To Explain Complicated Accounts — An expert bookkeeper may be examined to explain the meaning of entries in books of account, and give the true state of the accounts, where the books are present subject to inspection by the opposite party, and the entries are of such character as to render it difficult for the court or a jury to arrive at correct conclusions. — -(399)</p> <p>6. Damages — Interest—'Where a director or officer of a hank has misappropriated its funds, he is liable for interest on the amount, from the time of the taking.— (400)</p> <p>7. Decedents’ Estates — Form of Claims — Nothing in our statute requires that a claim against the estate of a decedent shall he in any specified form. Where interest is demanded, it is-immaterial whether it is claimed as such, or as damages. — (400)</p> <p>-Costs — Under the statute (Laws 1903, c. 181, § 124; Eev. Stats., § 7209), costs may he allowed to a successful claimant, against the estate of a decedent. — (401)</p>

<p>Criminal Law — Swindling—Confidence Game — To constitute the offense o.f obtaining money or property under Mills’ Stats., sec. 1332 (Rev. Stats., § 1783), something.more than mere words must be employed. The obtaining of advances of money by promises to invest it in mining enterprises, accompanied by assurances of large gains, under pretense of ability to read the future, will not suffice. — (408, 409)</p>

<p>1. Appeals — Law of the Case — Where, upon a second appeal, the record exhibits .a state of facts materially variant from that appearing upon the first appeal, the judgment upon such former appeal is not controlling as to the law of the ease. — (411)</p> <p>2. Statute of Frauds — Promise to Pay the Debt of Another— Where one promises to pay the debt of another in consideration of money or property received from the debtor for the expressed purpose of paying the debt, the promise is not within the statute. — (412)</p>

<p>1. Subscription to Corporate Stock — Contract Construed — The appellant corporation, at its organization meeting, April 29, 1889, voted to pay all assessments on $15,000.00 of its capital stock subscribed by Holme, and upon a like amount subscribed by Allen, and that in consideration thereof Holme and Allen should pay interest on each assessment from the time it was made, and assign to the company a certain patent. The assignment was made accordingly, Holme subscribed for 200 shares of the stock, and was charged in the books of the company with $20,000.00, the amount of this subscription. He paid assessments on $5,000.00 of this subscription, being the full par value of fifty-shares of stock, as they were called, and received a certificate therefor. January 31, 1891, the ledger of the company showed a balance against Holme of $15,000.00, for which he on that day executed his promissory note to the company, payable at one day, with interest. The construction account of the company was debited with $15,000.00 for the patent, from Holme, and his account was closed by construction. Bills receivable on the same books was debited with construction, $15,000.00, and construction credited with the same amount. The stock ledger, under date of October 7, 1891, showed the issuance to Holme of a certificate, No. 32, for 150 shares, and No. 33, for 50 shares. Certificate No. 32 was never signed by the president of the corporation, nor taken from its stub, and later entries, made without the knowledge of Holme, attempted to show that it was canceled. But at every meeting of the stockholders of the company, Holme attended, and, without objection, voted on 200 shares. In February, 1891, certificates were filed in the proper public offices, signed and sworn to by the president and directors of the company, declaring that the whole capital stock of the company had been subscribed and paid in cash. Holme, in the winter of 1902-1903, rendered an account against the company, claiming credit for certain dividends and showing a balance due from him. The company thereupon assumed the position that Holme never having paid his note, had abandoned all right to the stock. Pending negotiations for a settlement, Holme died. His executrix thereupon tendered the balance due on the note, after deducting the dividend, and demanded the stock.</p> <p>On her bill for an account and to be declared the owner of the 150 shares, it was held that the resolution of April 29, 1889, when accepted by Holme and Allen, became a contract; that the advances made by the company paid for the stock; that the note was to be regarded as given, not for the stock, but in evidence of the indebtedness created by the advancements; and that, the executrix having paid the balance due on the note, after deducting the dividends earned upon the stock, was entitled to be acknowledged as the holder of the 150 shares. — 416-424)</p> <p>2. Corporations — Contract with Subscriber to Stock — Validity — A contract between a corporation and a subscriber to its stock, fairly made and upon consideration, by which the corporation agrees to advance to the subscriber the assessments which, may be made upon his shares, is, as between the corporation and the subscriber, a valid transaction.' — (426, 427)</p> <p>3. --Stock — Certificate Not Necessary to Title — The certificate issued by a corporation is not the stock, but merely evidence of it. The title may be complete and may be established by other evidence, though the certificate is withheld. — (428)</p> <p>Corporate stock is a chattel, and, except as to third persons, the property therein may pass, though the seller retains possession until payment therefor.' — (431)</p> <p>4. -Stockholder — Payment For the Stock Not Necessary to the Character — It seems that, under Mills’ Stats., sections 480, 486 (Rev. Stats., §§ 850, 873), a subscriber who has not yet paid for his stock is nevertheless a stockholder. — (430, 431)</p> <p>5. Evidence — Corporate Books — Evidence Against Corporation — Entries made in the books of account of a corporation, its stock books and records of proceedings, of which there was no concealment, the books being at all times open to the inspection of the directors and stockholders and which accord with the action and conduct of the officers and directors, at the time and afterwards, are evidence against the corporation, even in favor of the secretary under whose direction the entries were made. -(425)</p> <p>Entries contrary to the fact, made without the stockholder’s knowledge, do not affect his rights, e. g., ah entry assuming to cancel his stock. — (432)</p> <p>6. -Corporate Certificate Filed in Public-Office is evidence against the corporation of the full payment, therein declared, of its corporate stock. — (425)</p> <p>7. Equity — Jurisdiction — A shareholder in a corporation once recognized as such, but whose right is afterwards unjustly denied by the corporate officials, may maintain a bill in equity to compel recognition thereof, and for an account of what is due him by reason of his status. He is not to be remitted to an action at law. — (434)</p> <p>8. Abandonment — A Question of Intention, and must be established by clear and unequivocal evidence. — (438)</p> <p>The creditor i^ not to assert, as against the debtor who has never denied the debt, nonpayment thereof for the lapse of the statutory period, as ah abandonment of his rights to corporate stock, for which the debt was contracted. — (436)</p> <p>9. Statute of Limitations — A Personal Privilege-, — The debtor may plead the statute or waive it at his pleasure. No third person can plead it for him. — (436)</p> <p>10. -When the Statute Begins to Run — As between a corporation and one whose subscription to its stock it has accepted and whom it has acknowledged as a stockholder, the statute does not begin its course till the corporation has denied his right to the stock and brought this repudiation of his right to his notice. — (440)</p> <p>11. Costs — In Equity Causes, are largely in the discretion of the court. A judgment therefor will not be reviewed unless manifestly erroneous. — (441)</p> <p>The. record examined and the dismissal of the plaintiff’s cause as to certain defendants, without allowing them costs, sustained.— (441, 442)</p>

<p>1. Statute of Frauds — A Rule of Evidence, and not of pleading. A complaint averring a contract to convey lands need not show that it was in writing. If it does not affirmatively appear that the promise was verbal, the complaint is not, on this ground, demurrable. — (448)</p> <p>2. Pleadings — Construction—The meaning of each word and phrase is to be drawn from the context.</p> <p>A complaint alleging the execution and delivery of a conveyance upon defendant’s promise to redeliver the same or reeonvey the premises to plaintiff, upon his recovery, etc., does not show that the promise was not in writing. The complaint is to be read as if it expressly averred a promise in writing. — (448)</p> <p>In such case, an averment in the answer that the promise was not in writing, is not new matter, and requires no reply. And a reply which is in effect a demurrer to the answer does not admit that the contract was verbal. — (448)</p> <p>This rúling in no way militates against the rule that the statute of frauds must be specially pleaded. — (448)</p> <p>The answer pleaded the statute of limitations. The reply averred that the statute had no application. Held, a legal - conclusion, and being inconsistent with the averments of the complaint, to be rejected. — (457, 458)</p> <p>3. Appeals — Harmless Error — A judgment, correct in'results, will stand, though by the court below rested upon unsound principle. — (449)</p> <p>4. Conveyances — Delivery—A deed conveying land cúmplete and duly executed, and expressed to be upon consideration, takes effect from its delivery. — (451)</p> <p>There can be no delivery in escrow to the grantee. — (452)</p> <p>A condition in words, e. g., that the grantee shall surrender it if the grantor survive a then existing malady, is without effect. — (451)</p> <p>That the deed was in fact without consideration, in no way impairs its effect. — (455)</p> <p>Nor does the grantor’s continued possession of the land and payment of taxes. — (455)</p> <p>5. Limitations — When the Statute Begins to Run — A bill to establish a trust in lands must be brought within five years from the accrual of the action (Mills’ Stats., § 2912; Rev. Stats., § 4073). — (456)</p> <p>The action accrues when the trustee repudiates the trust, with notice to the beneficiary. — (457)</p>

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

<p>1. Corporations — Seal—Presumption—Nothing appearing to the contrary, it will he presumed that a scroll affixed to the annual report of a corporation, and which the attestation clause, subscribed by the president and secretary, declares to be the seal of the corporation, was in fact such seal.— (468)</p> <p>2. -Annual Report — Not Under Seal — The annual report of a corporation conforming in all other respects to the requirement of the statute, is not invalidated by the absence of the corporate seal. — (469)</p> <p>3. Limitations — Action Against Corporate Officers for Failure to File Annual Report — Under section 2907, Mills’ Stats. (Rev. Stats., sec. 4068), the action given by Mills’ Stats., section 491 (Rev. Stats., sec. 911) against the directors of a corporation, for the debts thereof, is barred after the lapse of one year from the occurrence of (heir failure to file the annual report. The statute begins its course when the offense is committed, both as to debts then due and those subsequently contracted. —(470)</p> <p>4. Cases Overruled — The doctrine of Larsen v. James, 1 Col. App. 313, and Colorado Fuel and Iron Co. v. Lenhart, 6 id. 511, that as to debts accruing against the corporation subsequent tp the failure to file the annual report, tlie statute begins to run against the action given against the directors, from the date on which a cause of action accrued against the corporation, overruled — (473)</p>

<p>Error to Denver District Court — Hon. George W. Allen, Judge.</p>

<p>Appeals — Questions Not Presented Below — Insufficiencies in the complaint may not he urged on appeal, where, in the court below it was treated as sufficient, and evidence as to the matter alleged to have been omitted from its averments was received without objection.— (483, 484)</p> <p>In a controversy between the owners of ditches situated in different water districts, as to each of which a statutory decree adjudicating his priority had been awarded in his district, it appeared that the cause was tried below as though no such decrees had ever been entered. Held, that the questions determined in Fort Lyon Co. v. Arkansas Valley Co., 39 Colo. 332, were not presented upon an appeal from the final decree. — (489)</p>

<p>Resulting Trust — Evidence—The evidence to establish a resulting trust in land must be clear, certain, satisfactory, and trustworthy — and, according to some authorities, conclusive. —(491)</p> <p>Mere evidence of admissions of the party sought to be .charged will not suffice. — (498)</p> <p>The evidence examined and held sufficient to establish the trust. — (492-498)</p>

<p>1. Appeals — Findings on Conflicting Evidence will not be reviewed, where there is sufficient substantial evidence to support them. — (500)</p> <p>2. --Harmless Error — The exclusion of competent evidence which is merely cumulative and could not have changed the result, is harmless. — (501)</p> <p>3. Principal and Agent — Implied Authority of Agent — The president of a manufacturing company, in charge of its affairs, has implied authority to purchase chattels for use in its ordinary business. — (501)</p> <p>4. Interest — The vendor of chattels, suing for the price, is entitled to interest from the day when the goods were accepted, if no other day of payment was appointed. — (502)</p> <p>Fruitless negotiations for a payment otherwise than in money have no effect to enlarge the time of payment. — (502)</p>

<p>1. Evidence — Parol to Explain Writing — A writing evidencing the sale of mining stock, not naming the corporation by which it has been or is to be issued, may be supplemented by parol. —(506)</p> <p>2. Statute of Frauds — Sale of Goods, delivered and accepted by the purchaser, is not within the statute. — (50.6)</p> <p>3. Pleadings — Amendments — A complaint for the price of corporate stock set up a written contract with averments explaining an omission therefrom of the name of the corporation. An amended complaint, alleging the sale and delivery of the 'same number of shares in the same corporation, and the promise of defendant to pay therefor the same price and sum demanded in the original complaint, but making no mention of the writing, was held properly received. — (506, 507)</p> <p>4. Parties — Misjoinder of Defendants — Judgment—In an action against three, for the price of chattels, the evidence failed to show a liability as to two of them. Held, proper to allow judgment against the one, discontinuing as to the others. — (Code, secs. 222, 223.) — (507)</p>

<p>1. Pleadings — Answer — Averment that defendant has not “sufficient Information upon which to base a belief” does not conform to the statutory formula (Code, sec. 66), and is not sufficient to present an issue. The statute must be exactly followed. — (509)</p> <p>2. —'—What Must be Specially Pleaded — Payment.—(510)</p> <p>3. -Several Defenses — Each separate defense must be complete in itself. In an action upon a promissory note, a defense alleging the cancellation of a policy of insurance, but not showing that the policy was the consideration of the note, is insufficient. It is not to be supplemented by reference to another defense, in which this is averred. — (512)</p> <p>4. -No Consideration — To an action upon a promissory note an answer that there was “no consideration,” etc., not setting forth any of the facts attending the execution of the note, or wherein the alleged want of consideration is claimed to exist, is fatally defective. — (513-516)</p> <p>5. Promissory Note — Contemporaneous Oral Agreement — A contemporaneous oral agreement that a promissory note shall never be payable, is without effect. — (511)</p>

<p>1. Official Bond — Construction—An official bond is to receive a reasonable construction, but is not to be extended to matters not therein expressed, merely because to the judicial mind it may seem that such matters ought to have been provided for. — (519)</p> <p>The sureties are not to be charged, unless the act or omission complained of was an official act or omission. — (519)</p> <p>2. -Complaint — .Requisites — it is not enough to aver generally that the act was done “by virtue of,” or “under color of” his office. — (520)</p> <p>A complaint upon the sheriff’s bond for a tyound received by the discharge of a loaded revolver, attributable to the negligence' of a deputy, which, acting as such deputy, he had taken from the person of a prisoner in his custody, and by him being conveyed to jail, must show by an averment of facts that the custody was a lawful one, and that the taking of the revolver from the prisoner, and its retention by the deputy, was justified in law as part of the duty which the deputy was then performing. — (521).</p>

<p>1. Pleadings — Aider by Pleading Over — The omission, in a bill to quiet title, of an averment that the claim of defendant is “adverse to the plaintiff,” is cured by an answer asserting an adverse title and asking.affirmative relief. — (523)</p> <p>That the defendant afterwards withdraws his prayer for relief does not alter the situation to his advantage. — (524)</p> <p>2. Quieting Title — Plaintiff’s Possession — Title in fee carries with it a presumptive possession and suffices to maintain the action when there is no actual adverse possession.— (524)</p> <p>3. -Defenses — Where the defendant fails to assert, by his answer, title in himself, or asserting such title, entirely fails in his proofs, he is in effect out of court, and will not be heard to assert title in a third person. — (525, 526)</p> <p>4. Tax Deed — Acknowledgment — A tax deed not acknowledged is a nullity. — (525, 526)</p>

Morton S. Bailey, Judge. Suit by a school teacher against a school district to recover damages for an alleged breach of contract of employment.

<p>1. Criminal Law — Corpus Delicti — Upon the trial of an indictment or information for homicide, the people must show beyond reasonable doubt that the deceased came to his death by the criminal act of some person, and not as the result of accident, or natural causes. — (534)</p> <p>The evidence may he direct or circumstantial. — (534)</p> <p>2. -Evidence — Admissions of Prisoner — The voluntary statement of the prisoner to an officer that, at the time of the homicide charged, he was at a particular place named, is not a confession: — (535)</p> <p>The officer may testify to such statement, though the prisoner was not cautioned that his statements may' be used against him. — (535)</p> <p>3. -Stenographer’s Notes of Preliminary Examination, are not admissible to contradict the testimony of a witness given upon the trial, where it is not made to appear that the questions propounded at the preliminary hearing referred to the particular time to which the witness testified on the trial. — (536, 537) •</p> <p>4. -Best Evidence — Secondary—Witness to Contents of a Newspaper — The prisoner having testified as to the date of. the publication in the newspapers, of a certain homicide, witnesses who had examined the files of the various newspapers of the city may, in contradiction of such testimony of the prisoner, testify as to the result of such examination. — (537)</p>

<p>1. Criminal Law — Subornation of Perjury — 'Evidence — To convict of the crime, the people must show that perjury was in fact committed. It must appear not only that the alleged false testimony was given, and that it was false, but also that it was material. It must be shown to have had a legitimate tendency to prove or disprove some fact material to the matter being investigated. The record of the case in which perjury is alleged to have been committed must be produced, and the people must display so much of the testimony given in that hearing as shows clearly the materiality of the testimony alleged to have been falsified. — (540-544)</p> <p>The record examined, and held that the evidence was insufficient to sustain a conviction. — '(542-544)</p> <p>2. Delinquent Child — Contributing to Delinquency — To contribute to juvenile delinquency, one or more of the various acts enumerated in the statute must be committed. Merely assisting a child, charged with delinquency, to violate the orders of the juvenile court by failing to appear therein, does not, necessarily, enter into or constitute any of the elements of the offense.— (544, 545)</p>

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

<p>1. Schools — State Normal School — Under the statute (Rev. Stats., §§ 6125, 6132) the state normal school is an integral part of the public school system. Its diploma, when a certified copy is filed in the office of the county superintendent of schools of any county, entitles the graduate to teach in any of the public schools of that county. — (Rev. Stats., § 6142.) Until annulled by the state superintendent of public instruction or temporarily suspended by the superintendent of schools for the county, it is equal in legal effect to any license or certificate that may be issued by any county superintendent. — (558)</p> <p>The school board of a district have no power to require the graduate to submit to an examination. — (559)</p> <p>2. Contracts — Construed—The resolution of the directors of a school district to employ one named as a teacher “for the ensuing school year,” at a specified salary, is, when the proposition is accepted by the teacher, a contract. A -condition or proviso that the teacher shall submit to an examination at a certain time, does not, even if lawfully imposed, limit the term of employment, but renders it subject to termination. — (557, 558)</p>

<p>1. Promissory Note — Endorsee—Right of Action — The endorsee of a promissory note is entitled to an action thereon against the maker, though he paid nothing for it, and against a prior endorser. — (563)</p> <p>2. Endorser — Liability — To charge the endorser, presentment for payment, and notice to him of the dishonor, must be alleged and shown. — (564)</p> <p>Our statute (Laws 1897, c. 64) is substantially a codification of the law merchant. — (564)</p> <p>3. Pleading — Complaint—Substantial Defects, may be urged on appeal, though not presented in the court below, e. g.; failure, as against the endorser of negotiable paper, to allege presentment for payment and notice of,dishonor. — (565)</p> <p>The judgment in Edward Malley Co. v. Londoner, 41 Colo. 436, was not intended to abrogate the provisions of section 55 of the code. — (565, 566)</p> <p>General demurrer to the whole complaint does not waive substantial defects in particular counts. — (565)</p> <p>4. -Demurrei--One Good Count — Where'one count of several is sufficient, a demurrer to the whole complaint must be overruled. — (565)</p> <p>5. '-.Counter-claim — New Parties — Kruse brought an action as endorsee of promissory notes, payable to a bank of which he was a director, against an endorsed. The defendant pleaded that the endorsement was made after maturity, and without consideration; that the bank was the real party in interest, and was controlling the action; that the notes were given for money loaned to the Kansas-Burroughs Mining Company, to enable it to purchase certain mines; that defendant was the president of that company, and a judgment creditor thereof for a large amount; that certain mines belonging to the La Crosse company were of great value to the Kansas-Burroughs company, and, in order to obtain control thereof, the latter company purchased the whole stock of the former; that the Kansas-Burroughs company, being insolvent, the creditors thereof, in October, 1904, assigned all its capital stock to certain trustees for the benefit of its creditors, with power to operate the mines and dispose of the property for the payment of its debts; that Potter, the president of the bank, was one of these trustees, and the managing trustee; that all the creditors of the Kansas-Burroughs company also assigned their claims to the same trustee, and that the trustees accepted the trust; that it was agreed between defendant and Potter that the properties of the La Crosse company should be purchased on execution sale, in the interest of the Kansas-Burroughs company; that accordingly it was purchased by Potter, as trustee, but that, in violation of his trust, he took the title in the name of the bank, with intent to defraud defendant, and the other beneficiaries in the trust; that the property so acquired was more than sufficient in value to satisfy the promissory notes set up in the complaint. Held, a proper counter-claim, entitling the defendant to affirmative relief; that Potter and the bank were necessary parties defendant to a complete determination of the action. — (567-573)</p> <p>6. -Motion to Strike — In determining a motion to strike out a pleading, all matters well pleaded aré to be taken as true. —(570)</p> <p>7. Trustees — Duties and Disabilities — The president of a bank who has accepted the position of trustee for the creditors of a mining company, among whom is the bank, is under duty to protect all alike. He is not at liberty, in administering the trust, to acquire title for the hank exclusively, to a property which is of great value to the mining company. The circumstance that the property so acquired was not expressly included in the trust is not important, where the stock of the corporation to which the property belonged was so included. — (570-572)</p>

<p>1. Eminent Domain — Jurisdiction — Injunction — The final rule must follow the statute. The. court has no jurisdiction, by an order entered in proceedings to condemn a way for a ditch, to quiet the title of the proprietor thereof to waste water from another ditch, nor to prohibit the locking of the headgate of such other ditch, nor to authorize the petitioner to enter the lands of the proprietor of the other ditch, in order to open the headgate thereof, nor to authorize the sheriff to enter upon such lands to break locks upon the headgate of such other ditch.—(576)</p> <p>2. Contempt—Void Injunction—Violation—It is no contempt to violate an injunction awarded by a court acting without jurisdiction.—(577, 578)</p> <p>3. Cases Overruled, Explained or Distinguished—The opinion in Schneider v. Schneider, 36 Colo. 518, explained.—(577)</p>

<p>1. Appeal from Justice — Docketing — Appellant may not, ■with the same bond, proceed partly under section 3846 and partly under section 3849, Rev. Stats. If the bond is approved by the justice, he must pay' the docket fee within twenty days after such approval. The time is not to be extended by the subsequent acceptance and approval of the bond, by the clerk of the court. That the clerk at first rejects the bond, does not eliminate it from the case, so as to give effect to his subsequent acceptance and filing thereof. — (581)</p> <p>2. Record — Conclusive Effect — The record of the county court declaring that a bond given in an appeal from a justice to that court was approved by the justice, is not to be contradicted by affidavit. — (581)</p> <p>3. Appeals — Presumptions — When the files of the lower court are not in the transcript, it is presumed that the finding of that court as to the filing of a certain paper is true. — (581, 582)</p>

<p>1. Negligence—Burden of Proof—Where, in an action for negligence, no violation of any statute is involved, plaintiff must show that the injury complained of was the result of defendant’s negligence; and such negligence must be clearly established either by direct or circumstantial evidence.—>(587)</p> <p>2. Railroads—Live Stock on Highway Crossing—The engineer of a railway train is not under duty to even check his speed, merely because cattle are seen near a highway crossing. Unless the animals are already in danger or are likely to presently go upon the crossing, and the engineer sees, or by reasonable circumspection could see, such probability of danger, in time to avoid doing injury to the animals, it is not negligence on his part to continue at speed.—(591)</p> <p>The appearances must be such as would excite in the mind of a reasonably prudent man the fear of injury to the animals, before he is required to take measures to avoid such injury. The evidence examined and held not sufficient to charge the railway company. — (591)</p>

<p>1. Executors and Administrators — Exhibition of Claims — Action Pending — The pendency in the district court of an action against a decedent, instituted in his lifetime, does not, unless the personal representative is made party thereto and process sued against him, amount to an exhibition of the claini of the plaintiff in that suit against the estate. — (597)</p> <p>While the suit does not abate by the death of the defendant, the administrator is not required to take notice of it until made party. — (598)</p> <p>The creditor, plaintiff in such pending action, who permits the year next after the issuance of letters testamentary or of administration, to elapse without bringing in the personal representative, will, though he afterwards obtain judgment against him in that capacity, share only in the estate not set down in the inventory. — Mills’ Stats., secs. 4780, 4787, 4792; Rev. Stats., secs. 7205, 7212. — (598)</p> <p>The district court awarding judgment against the administrator may specifically direct accordingly. — (599)</p> <p>That the estate has not been distributed does not affect the result. — (599)</p> <p>Nor does the fact that the claim is of such character that the amount of it, or whether, in fact, any claim can be established, cannot be known until the result of the action.; e. g., a claim against shareholder in a corporation for the debt of the corporation. — (599)</p> <p>2. Estoppel — By Conduct — When the adversary party is not misled, the filing of an answer in the name of a defendant who is already deceased, works no estoppel upon the administrator. — (600)</p>