Volume 5 — Colorado Reports

Case for malicious prosecution. In the fall of 1874, Willoughby, the appellee, was sheriff of Arapahoe county. As such officer he levied, at the suit of Brown, the appellant, a writ of attachment upon a stock of dry goods and notions of the property of the firm of Mines and Elliott.

Eimira L. G-anebin, tbe appellee, obtained judgment in the district court of Arapahoe county, July 13th, 1878, against Phelan, for the sum of $525.03. The plaintiff procured garnishee process to be issued and served upon Yillard and Greeley, receivers of the Kansas Pacific Railway Company, who were recpiired to appear upon a day named before a referee.

<p>A third party for whose benefit a simple contract has been entered into for a valuable consideration moving from the promisee may maintain an action in his own name, or may plead it by way of set-off.</p>

<p>1. The chattel mortgage act, upon compliance with which the mortgagor may retain possession of the property mortgaged, is in derogatiSh of the common law and must be'strictly construed. To be valid as against third persons no provision of the act can be neglected.</p> <p>2. Section 10, p 124 Gen. Laws, does not dispense with the requisites to the validity of a chattel mortgage, except the recording thereof when the adversary party has actual notice.</p> <p>3. Without au acknowledgment or memorandum a chattel mortgage may be valid as between the parties, but it has no effect upon the rights of third parties acting in good faith.</p>

On February 14th, 1877, Gallagher filed his petition in the County Court of Boulder county for a mechanic’s lien.

• The defendant in error filed in this court an affidavit of the sheriff of Pneblo county, to the effect that he had served the summons issuing out of the county court in said action by delivering to each of the defendants therein a true copy, etc. The plaintiff in error moved to strike the affidavit from the files.

<p>1. Plaintiff drew his sight'draft on D in London, payable to'the order of C, a Hanker, delivered it to C to collect and place .to account of plaintiff; C transmitted the draft to defendant, endorsed, “ Pay to the order of the Colorado National Bank for account of C;” C was.indebted to the Colorado National Bank (defendant) at the time for balance, overdraft. The draft was paid;' after payment, but before proceeds came to defendant's hands, defendant was notified that plaintiff had delivered the draft to C for collection, and that plaintiff claimed the proceeds; held, that defendant was not liable in assumpsit lor the proceeds.</p> <p>2. The possession by an indorsee of negotiable paper imports prima facie that it was acquired bona'fide for full value in the usual course of business before maturity, and without notice of any circumstance impeaching ita validity, and that such holder is the owner, and entitled to recover the fuff amount against all prior parties.</p> <p>3. By the law merchant a banker has a general lien on all securities deposited with him by a customer, for his general balance, unless there is a contract, express or implied, inconsistent with such lien, and of this the court will take judicial notice.</p> <p>4. It is an elementary rule that whenever one of two parties must suffer by the act of a third, he who has enabled that, third person to occasion the loss, must sustain it himself rather than the other innocent party.</p>

-action on a promissory note made by Haas, the appellee, to Spencer, and indorsed to Manning. In the district court Haas interposed a demurrer to the plaintiff’s complaint, and for cause alleged that the complaint did not state facts sufficient to constitute a cause of action, in that it failed “to state the date of the note sued upon,” and because the complaint was otherwise “ uncertain, unintelligible and indefinite.”

<p> Appeal from District Gourt of Pueblo Oounty. </p> <p>The case is stated in the opinion.</p>

<p>1. It seems that under the constitution so much of any act as is not directly germane to the subject expressed in the title, is without force. That the provision of the constitution is a mandatory declaration of an essential con di-tion to the validity of legislative enactments.</p> <p>2. Under chapter twenty-five of the Code, a proceeding instituted for the purpose of remedying the usurpation or misuse of a corporate franchise or a public office, is by civil complaint and summons. The criminal form of the old action is superceded by civil action. In terms, chapter seventy-three of the Revised Statutes authorizing proceedings by quo warranto, is repealed by section 477 of the Code.</p> <p>3. It seems that a mere statement of legal conclusions, with a demand that the defendant show by what authority it exercises a franchise, as was anciently tolerated when 'the proceeding was by information in nature of a quo warranto, would not be sufficient under the Code.</p> <p>4. A defect in pleading may be aided by pleading over.</p> <p>5. A toll road company organized under the incorporation act of 1864 (Laws 1864, p. 66, § 28), may not establish and collect tolls at two gates distant less than ten miles from each other.</p> <p>6. When the interpretation of a charter is doubtful, that construction is to be given to it which is most favorable to the public, provided it be equally reasonable.</p> <p>7. It is competent for the commonwealth, through its courts, to waive a forfeiture of a charter, and it is generally its duty to do so when the infraction of its provisions is not willful.</p>

<p> Error to County Court of Pueblo County. </p> <p>-The case is stated in the opinion.</p>

This case will be found reported in volume four, Colorado Reports, at page 526. The following dissenting opinion of Stone, Justice, was inadvertently omitted by the reporter, in the preparation of that volume.

<p>An appeal under section 338 of tlie code lies only from final judgments, and no authority is found there for taking an appeal from either an order denying a continuance, or from an order setting aside a verdict.</p>

Action for divorce. It appears from the record that the appellant was a practicing physician. That his income was between two thousand and three thousand dollars per annum. The court below, in its decree, found that the appellant at the time was possessed of moneys, goods and chattels and real estate, to the value of thirty-six hundred dollars.

<p> JError to County Court i/n Boulder County. </p> <p>Creditor’s bill. The case is sufficiently stated in the opinion.</p>

<p> Error to District Court of El Paso County. </p>

<p> Error to District Court of Las Animas County. </p> <p>The case is stated in the opinion.</p>

<p> Appeal from District Gourt of Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

<p>Whore there are several defendants all served, final judgment against one or more cannot he entered without disposing of the case as to all.</p>

<p>1. Under the Code (section 14), an action upon a joint note may be maintained against both jointly, or either, separately.</p> <p>2. The survivor and the executor of a deceased joint maker cannot, however, be joined in the same action, and in such case it is irregular to proceed against the executor without dismissing the complaint as to the survivor.</p> <p>3. A judgment against an executor should be for a sum named payable out of the estate of the deceased in due course of administration.</p> <p>4. Execution may not issue against an executor. Section 2,924, Gen. Laws.</p> <p>5. In pleading the allegation that letters testamentary were granted and issued by the County Court, is sufficient without averring an acceptance of the trust and qualification therefor.</p>

<p>1. 'Statuteslimiting the time within which a review may be had, whether by appeal or writ of error, are in the nature of statutes of repose.</p> <p>2. In appeal cases, when special pleading is not allowed, it is proper for the respondent to apply to dismiss the appeal if it is not brought within the time limited by the statute, or if the right to appeal is barred in any other manner.</p> <p>• 3. Where the right to appeal is barred by lapse of time, the right to plead the bar is a vested right, and beyond the peril of subsequent legislation.</p> <p>4 The statute (Act of 1879, Sec. 38, page 229), in so far as it allows a writ of error to a judgment in respect to which an appeal was barred prior to its passage, is retrospective in its operation, and not only within the constitutional prohibition, but within the prohibition of fundamental principles governing retrospective laws. -</p>

<p> Appeal from District Court of Arapahoe Cou/nty </p>

<p>The bar arising from the lapse of time within which an appeal can be taken-is a vested right and beyond the reach of subsequent legislation.</p>

The appellant, Ellen Eoss, filed her bill of complaint in the District Oourt of Arapahoe County, substantially as follows : That about the 19th of March, 1866, James Duggan was indebted to J. Bright Smith, in the sum of $1,000; whether the indebtedness was evidenced by note was unknown. That on said day Duggan conveyed to Smith certain real estate described, to secure said indebtedness, and future advances; that the deed was in fee, but intended and received as a mortgage.

<p>1. Under the statute (Gen. Laws section 2,918), claims against an estate may be tried in the county courts before a jury, and without formal pleading, as in ordinary trials before a justice of the peace.</p> <p>2. The fact that a county judge is permitted to exercise an equitable jurisdiction in the allowance of claims does not deprive litigants of the right of submitting facts to juries, at least in actions not purely equitable.</p> <p>3. If there be partnership property, and also separate property of a deceased partner, the partnership debts are to be paid out of the proceeds of the joint estate, and the individual debts out of the proceeds of the separate estate. In the exercise of equitable jurisdiction in the allowance of claims, county courts are strictly restrained from infringing on this rule.</p> <p>4. The reason assigned for the distinction between the ordinary commercial partnership and a mining partnership, and for limiting the powers of the partners of the latter class, is that a mining partnership is not founded on the delectus personae, whereas the other class is.</p> <p>5. The powers of members and managers of mining partnerships are limited to the performance of such acts, in the name of the partnership, as may be necessary to the transaction of the business, or which is usual in like concerns.</p> <p>6. The employment of counsel to litigate the title to the mine does not come within the limited powers vested in a mining partner. But this rule does not apply to incorporated mining associations, nor to partnerships formed under the statutes.</p> <p>7. The rule is that whenever a party undertakes .to do an act as the agent of another, if he does not possess any authority from the principal therefor, or if he exceeds the authority delegated to him, he will be personally responsible to the person with whom he is dealing on account of his principal.</p> <p>.8. Ratification can only be effectual between the parties when the act is done by the agent avowedly for or on account of the principal, and not when it is done for or on account of the agent.</p>

<p> Appeal from County Court of Jefferson County. </p>

<p> Appeal from District Court of Summit Cou/nty. </p> <p>The facts are stated in the opinion.</p>

<p>Under the statute (Gen. Laws, page 513, section 29), interest is not recoverable upon a verdict.</p>

<p>A joint appeal by all the defendants allowed upon the condition of filing a joint bond, must be prosecuted by all.</p>

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

<p>The rules of this court require plaintiffs in error and appellants to assign errors at the time, of filing the transcript of the record.</p>

<p>1. It is well settled that papers filed in the progress or trial of a cause at nisi prim, and not intrinsically parts of the record, cannot become such by being incorporated therein.</p> <p>2. The provisions of the R. S. establishing the mode • of procedure in taking and prosecuting appeals from judgments of justices of the peace, remain in force, but under the act- of March 14, 1877, such appeals lie to the county court, instead of the district court.</p>

<p> Appeal from, District Court of Custer .Coimty. </p>

<p> Error to District Court of Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

<p>1. An executor is bound to the exercise of tbat ordinary care, skill and diligence which prudent men exercise in tbe conduct of tbeir own affairs. It is his duty to keep the trust fund separate and apart from his own moneys.</p> <p>2. An executor cannot be heard to defend against a removal on the ground that his violation of duty has benefited the estate.</p> <p>3. The requirement that an executor shall give bonds for the faithful performance of his duty, is only one safeguard against waste and mismanagement; the power of removal is another, and legatees are entitled to the protection of both.</p> <p>4. The fact found that an executor has not acted fraudulently cannot avail him where his mismanagement has all the effects of a fraud.</p>

On the 9th of May, 1878, Jolm Pipe, the appellant, filed in the District Court of Jefferson County, his complaint, alleging as follows: 1st. ¶ That sometime during the year of 1859 or ’60, William A. LL Loveland, of the town of Golden, in the county of Jefferson and State of Coloi’ado, and others, citizens of the United States, settled upon the lands hereinafter described as embracing the town site entry of the said town of Golden (formerly Golden City), organized a town…

Smith, the appellee, filed his declaration in ejectment in the District Court of Jefferson County, alleging title in himself in fee to certain lands in Golden City, within “ the town site entry.” The appellant filed the plea of the general issue, and the cause was tried by the court without the intervention of a jury. The court entered its finding in favor of the appellee, and gave judgment thereon. To reverse that judgment, the defendant below prosecutes this appeal.

Tujfts, the defendant in error, brought an action in replevin against George, in September, 1875. The declaration was in the cepit and detinet. Pleas non aepit and property in defendant.

Stout, the appellee, brought suit in attachment against Philip P. Corner and Henry M. Foster, and levied upon a portable saw mill. The appellant Horner interpleaded, claiming the property under a chattel mortgage previously executed and delivered to him by Comer. The chattel mortgage was not recorded until after the levy of the attachment, but the property when levied upon, was in the possession of Alva Gomel’ as the agent of the mortgagee.

Hexter, the plaintiff in error, on the 30th of June, 1879, filed his complaint in the District Court of Arapahoe County, against John 8. Langrishe, Thomas Clifford, and Michael D. Clifford. The complainant alleges, “that Hexter recovered judgment in the County Court of Arapahoe, against Langrishe, in January, 1879, for $1,432. That execution was issued, and returned in part satisfied.

Appeal from District Court of Arapahoe Cotmty. The facts are stated in the opinion. The plaintiff in the court below had judgment.

<p>Under the Code (Section 338) an appeal to this court on a judgment in the District Court, rendered on appeal from the County Court, is barred after ninety days from the rendition of the judgment. When the bar attaches it cannot be disturbed by subsequent legislation.</p>

Boettcher, the appellee, filed his complaint in the district court, alleging substantially that appellant was a banking corporation; that on January 31st, 1878, appellant was possessed of certain moneys of Shackelton & Brinker, co-partners, to be paid on demand; that on said day Shackelton died, leaving said Brinker surviving; that about February 2,1878, appellant received other moneys for use of said firm, also payable on demand; that February 8th said moneys amounted to…

<p>Under the Constitution (Sec. 2, Art. 11), neither the State, nor any county, city, town, township or school district, can make any donation or grant to, or in aid of, or become a subscriber or shareholder in any corporation or company.</p>

Catharine Hoi-mes, the appellee, brought her action in the District Court against the appellant for personal injury sustained by her while walking on the track of appellant, and recovered judgment for $5,000. To reverse that judgment this appeal was prayed; the facts necessary to a proper understanding of the case are stated in the opinion.

The plaintiff below, in its complaint, alleged: that it was a corporation; “That about the first day of April, A. D. 1876, the defendant, Robert L. Hopkins, leased from, plaintiff the following described property, to-wit: The hotel known as ‘The Manitou House’ and appurtenances, situated in block ‘0,’ in the town of Manitou, in the county aforesaid, together with certain furniture and other personal property in and about said premises; that pursuant to said lease said…

<p>1. Under the Code (See. 183), the court muy upon application of either party direct a reference when the trial of an issue of fact requires the examination of a long account on either side. The referee may be directed to hear and decide the whole issue, or report upon any specific question of fact involved.</p> <p>2. In this State there is no constitutional impediment in the way of a liberal construction of the Code remedy. The provision of the Constitution of the United States (Art. YIT, amendments) securing the right of trial by jury in suits at common law where the value in controversy should exceed twenty dollars, was not intended as a restriction upon the State Courts.</p>

Appeal, from District .Court of El Paso County. McFarran, the appellant, filed in the District Court of El Paso County his complaint as follows: “Plaintiff alleges that he is now, and has for more than two years last past, been in possession of the following described premises, in the county of El Paso and State of Colorado, to-wit: Lot three (3) in D. Iff.

Alexander_ P. Allen, filed his complaint in the District Court of Boulder County, against George Tritch and others, creditors of Gay S. Allen; the cause was brought by change of venue to Arapahoe county, and there tried.

The plaintiffs in the court below commenced their action on the 30th of August, 1878, alleging in their complaint that they were the owners in the actual occupation and possession of a certain parcel of unsurveyed public laud, and claiming the right to occupy and possess the same under the laws of the United States and of the State of Colorado; that the plaintiffs first settled upon the premises in June, 1875, and made improvements of the value of at least $150, and have…

Margaret Smith, the appellee, commenced her action in the District Court of Clear Creek County, upon two certain promissory notes, given by the appellants, Nathan S. and William J. Hurd, payable to her order, dated July 5, 1877, for two hundred dollars 'each, due eight and eleven months from date, respectively.

The jury rendered a verdict in this case in favor of the plaintiff, Eicholtz, and judgment was entered on the verdict. The facts are sufficiently stated in the opinion.

<p> Error to District Court of Ouray County. </p> <p>This was a motion to dismiss the writ of error.</p>

<p> Appeal from District Court of Boulder County. </p> <p>The facts are stated in the opinion.</p>

<p>1. Where the defendant answered, setting up the same defense relied upon on demurrer, the demurrer having been overruled, held, that the answer was a waiver of the demurrer.</p> <p>2. If it appears upon the face of the complaint that the action is barred by the Statute of Limitations, and no facts are alleged taking the demand out of the statute, a demurrer will lie; but if the fact does not appear upon the face of the complaint, the defense must be made in the answer.</p> <p>3. Section 1,692, G-eneral Laws of 1877, establishes a rule of evidence, and not a rule of pleading.</p> <p>4. Under the Code, where an answer contains no new matter, but merely denies the allegations of the complaint, no reply is required.</p>

<p>1. Actions upon tlie ground of fraud must be instituted within three years after the discovery of the fraudulent acts relied upon as the ground of relief, or be forever barred.</p> <p>2. A quit-claim deed is as effectual to pass the title to real estate as any other, and the purchaser accepting such deed without notice of prior rights, will be as fully protected a,s if luis deed contained full covenants of warranty.</p> <p>8. In adopting substantially tbe statute of another State, the legislature is presumed to have intended'that such statute shall receive the same construction given it by the courts of the State from which it was adopted.</p>

<p> Appeal from, County Court of Fremont County. </p> <p>The case is stated in the opinion.</p>

<p>1. The office of a writ of error being fully explained by the common law, and Congress having authorized this court to issue it, the jurisdiction to hear and determine causes brought into this court by means of this writ, was complete without further action on the part of the legislature.</p> <p>2. The constitution of the State took the place of the organic law of the territory in continuing the writ of error from this court to the county courts.</p>

<p>1. Conscientious scruples against the infliction of the death penalty, do not in a capital case, necessarily disqualify the juror entertaining them.</p> <p>2. If notwithstanding his conscientious scruples he will render a verdict in accordance with the law and the evidence, and if upon this point his an. swers have no uncertainty, this is all the lawrequires.</p> <p>3. When the court upon its own motion or upon the application of a juror in the exercise of its discretion in the matters of excuse or exemption, excuses a juror for an insufficient cause, it is no ground for reversal. But the rule cannot be applied when there was a challenge for cause, and a judgment upon the challenge.</p> <p>4. Under the statute (Secs. 812 and 1,479, Gen. Laws), after the regular panel has been exhausted, the court may order a tales, but the prisoner has the right to object to the depletion of the panel on insufficient grounds.</p>

<p>Where the plaintiff shows upon the trial no cause of action, or makes out no case whatever, and no motion for nonsuit is interposed, it is not only the right, but may be the duty, of the court to direct a verdict for the defendant. This practice is common to both the Code and the Common Law.</p>

<p> Appeal from District Coxtrt of Arapahoe County. </p> <p>The facts are sufficiently stated in the opinion. The plaintiff below bad judgment.</p>

<p> Appeal from District Court of Lake County. </p> <p>The facts are stated in the opinion.</p>

<p>The execution and delivery of a bond conditioned to convey a mining claim upon payment or deposit of a certain sum within a given time, the bond not being signed by the obligee, containing no clause granting him possession d uring the option, and having no consideration expressed for the option given: Held, that until acceptance by the obligee, or the performance of some act equivalent to an election to purchase under the terms prescribed, such a bond is a nudum pactum, and subject to revocation; also, that the taking possession under such a bond, and making improvements without objection from the obligor, would not render the bond irrevocable; nor could such entry be considered equivalent to an election to purchase, nor be construed into a performance.</p>

<p>1. A recorded certificate of location is a statutory writing affecting realty, being in part the basis of the miner’s “right of exclusive possession and enjoyment ” of his mining location, granted by the act of Congress of May 10, 1872. The purpose of description is to identify the claim with reasonable certainty.</p> <p>2. The courses and distances of a survey must yield to its monuments, whether natural or artificial.</p> <p>3. While a stump, hewed and marked, might be adopted as a location post, the descriptive survey should give both its real and assigned character. When the call in a location certificate is for a “ post,” parol testimony is inadmissible to show that while a “post ” is calledfor, a “ stump,” was in fact established as a comer.</p> <p>4. The general rale that parol evidence cannot be admitted to contradict or control the language of a deed, but that latent ambiguities may be explained by such evidence, held, applicable to a location certificate.</p> <p>5. The rale is that where monuments are relied upon to control courses and distances, they must be found as called for.</p> <p>6. Marking the boundaries of a surface claim as required by the statute, serves a double purpose: it operates to determine the rights of the claimant as between himself arid the Government, and to notify third persons of his rights.</p> <p>7. Where a variation exists between the monuments and the courses and distances of the location certificate, it is' necessary, prior to the patent, for the locator, as against subsequent locators, to keep up his monuments to an extent that gives fair and reasonable notice.</p> <p>8. The requirements of the statute that the side posts be placed in the center of the side lines is satisfied if they be placed substantially in the center.</p> <p>9. The marking of the surface boundaries with posts is so far imperative under the statute as to require that the boundaries may be readily traced by them. The notice which the statute contemplates and seeks by and through them, may not be substantially impaired by any omission.</p>

<p> Appeal from District Oov/rt of Weld Goimty. </p> <p>The facts are stated in the opinion.</p>

<p>To constitute due diligence does not require unusual effort or expenditures, but only such constancy in the pursuit of the undertaking as is usual with those in like enterprises. Such assiduity as shows a bona fide intention to complete the undertaking within a reasonable time.</p>

<p>Mr. Willard Teller, for defendant in error, now moved to dismiss the writ for reasons stated in the opinion.</p>

<p>Upon petition for rehearing the following opinion was delivered:</p>

<p>Petition for rehearing.</p>

<p> Error to Prolate Court of Jefferson Comity. </p> <p>Application to file supplemental record in Supreme Court.</p>

<p>Motion to dismiss writ of error.</p>

<p>Where a motion was made and sustained'to vacate a judgment rendered at the preceding term of the district court, held, that however erroneous the order vacating the judgment, it was not an order upon which an appeal would lie, being in no sense a final judgment. '</p>

<p>1. Leave having been granted to file a supplemental record in this court, and it appearing that the supposed supplemental record was of matters subsequent to, and independent of the decree in the original record, the supplemental record was stricken out upon the court’s own motion.</p> <p>2. A plaintiff in error may dismiss his writ.</p>

<p>1. Under the weight of authority the jurisdiction of equity tribunals has generally been asserted and maintained in this country in suits for divorce in the absence of statutes, as well as under'them.</p> <p>2. By the act of January 31, 1872, the Probate Court of Jefferson County was given concurrent jurisdiction with the district court in all actions at law or in equity where the debt or sum claimed did not exceed two thousand dollars, and therefore held, that in proceedings for divorce not complicated with money or property claims exceeding two thousand dollars, such probate court had jurisdiction.</p> <p>3. Under the chancery act, before the adoption of the Code, in the computation of time of publication of summons, the rule was to exclude the day of publication and include the first day of the term.</p> <p>4. In adopting the statute of a sister State, the general rule is that the Legislature adopt also the settled construction given such law by the courts of that State.</p> <p>5. The general current of modern authority is that whére a statute requires an act to be performed a certain number of days prior to a day named, or within a definite period after a day or event specified, or where time is to be computed either prior or subsequent to a day named, the usual rule is to exclude one day of the designated period and to include the other.</p> <p>6. Under sections one and five of the act of February 11, 1870, the husband in a suit for divorce was a competent witness, and “ desertion ” held, under the act, to be such a personal wrong as would bring the husband within the exception provided by the terms of the statute.</p>

Tras was an action brought to charge the defendant as a stockholder in the Cottage Grove Association, an alleged corporation, under section twelve, chapter eighteen of the Eevised Statutes of 1868. Both the plaintiffs and defendant were stockholders in the alleged corporation. Judgment of non-suit was entered in the court below.

<p>The proper function of the writ of mandamus is merely to set in motion. It will therefore in a proper case he allowed to command action, hut never to control discretion.</p>

<p> Error,to Coimty Court of Arapahoe Cotmty. </p> <p>Motion to strike out bill of exceptions, and to dismiss writ of error.</p>

<p> Appeal from County Court of Lake County. </p> <p>The case is stated in the opinion.</p>

<p>2. In construing a charge to a jury, each instruction should he considere¿ ^ connection with the entire charge, and if, considering the charge and instructions as a whole, this court is satisfied the jury were not improperly advised as to any material point in the case, the judgment will not he reversed on the ground of an erroneous charge.</p>

<p>1, A defendant in attachment, claiming (under the statute, subdivision 6 of Sec. 26, Ch. LIII. Gen. Laws) as exemp* from levy “implements or stock in trade ’ * * used or kept for the purpose of carrying on his trade or business,” not specifically exempt by law, is entitled to select such articles as are suitable to his trade or business; and a failure on his part to make such selection, is a waiver of his right thereto.</p> <p>2. A sheriff is not liable for damages for levying an attachment upon property, not specifically exempt by statute, in case the defendant declines to designate the articles he desires to claim.</p> <p>3. Under the statute, no property is exempt from levy to satisfy a claim for the purchase money thereof; and a defendant cannot, by selecting such property, under the sixth subdivision of the exemption law, supra, exempt it from such liability.</p>

<p> Error to District Court of Arapahoe County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p>1. The legal existence of a municipal corporation will be conclusively presumed. under section 2743, General Laws, when, without question, a board of municipal officers exercising their official duties has been maintained for more than one year.</p> <p>2. The creation of the office of police judge for a city or incorporated town is within the legislative authority; and -the election of such officer may, by law, be conferred upon the municipal authorities of cities of certain classes; but the creation of a judicial officer by name merely, without defining his duties and providing the manner of their exercise, does not constitute a court. In the absence of statutory authority the city council cannot establish jurisdiction and provide for the exercise of judicial functions.</p> <p>3. A “ police magistrate,” under the laws of this State, must be a justice of the peace, duly elected and qualified, primarily, and by appointment or designation by the proper authorities of a municipality, may become a “police magistrate ” ex officio.</p> <p>4. The office of police judge, as denominat ;d in sections 2714 and 2720 of the General Laws, can only be established and fully equipped for service by the legislature of the State; such officer is not the creature of the municipal authority of a city or town—such municipal authority cannot invest the office with any powers or functions of its own creation; and a person assuming as police judge to exercise judicial functions under no other license than that ■ conferred by municipal authority, is guilty of usurpation.</p>

<p> Appeal from District Court of Las Animas Comoty. </p> <p>The case is stated ia the opinion.</p>

<p> Appeal from County Court of El Paso Coxmty. </p> <p>The case is stated in the opinion.</p>

<p> Error to Prolate Court of Boulder County. </p>

<p> Error to County Cou/rt of Clear Creek County. </p> <p>The case is stated in the opinion.</p>

<p>1. Where the people, by their constitution created the General Assembly, and declared that the legislative power should be vested therein, they conferred the full and complete power as it existed and rested in themselves, subject only to the restraints and limitations of their own constitution and the Constitution of the United States.</p> <p>2. Plenary powers in the legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In inquiring whether a particular statute is constitutional, it is for those who question its validity to show that it is forbidden, either by positive provision or necessary implication. In cases of doubt, every possible presumption and intendment will be made in favor of the constitutionality of the act, and the courts will only interfere in cases of clear and unquestioned violation of the fundamental law. Courts are not at liberty to declare an act void, because in their opinion it is opposed to the spirit supposed to pervade the constitution, but not expressed in words.</p> <p>3. The term “ county courts ” in the constitution of Colorado (Secs. 22 and 23, Art. VI), has a distinct meaning, and designates a distinct court, and cannot, by any rules of interpretation, be made to include the criminal court.</p> <p>4. The constitution of Colorado, neither by express words nor necessary implication, requires that all judicial officers shall be elected ; and in the absence of constitutional restraint the power of the General Assembly to declare the office of criminal judge either elective,or appointive, in their discretion, was plenary.</p> <p>5. The office of criminal judge is “provided for ” in article VI of the constitution, and is therefore included in section 29 of said article. An existing office without an incumbent may be vacant, whether it be' a new or an old one. The legislative authority to create the office of criminal judge, and vest the original appointment in the governor, by and with the advice and-consent of the Senate, is undoubted. The Senate not being in session when the act became a law, the governor had no right to appoint, and the office existing without an incumbent, was vacant. This “vacancy” can be filled only by appointment by the county commissioners, as provided in Sec. 29, Art. VI of the constitution.</p> <p>6. In so far as the act provides that vacancies in the office of judge of the criminal court are to be filled by the governor, it is in conflict with the constitution, and the constitution must be enforced as the paramount law. But the entire act does not therefore necessarily fail. Where part of an act only is unconstitutional, and when this is stricken out, if that which remains is complete in itself, and capable of being enforced, wholly independent of that which is rejected, it will be sustained. The General Assembly had full power to establish a criminal court, px-ovide for the appointment of a judge, and fix his term of office ; and that portion of the act decreed unconstitutional being supplied by the constitution, the act can be enforced.</p>

<p>1. A mortgage is but an incident of the debt it secures, and an assignment of the debt carries the mortgage with it.</p> <p>2. After having assigned the debt secured by the mortgage, the power of the mortgagee ceases, and a release made by him is a nullity—being in fraud of the rights of his assignee—and such attempted release will be canceled, and the mortgage lien enforced by the chancellor.</p> <p>3. Where an estate is subject to a mortgage, and is sold by the mortgagor in parcels at different times, the mortgage shall be satisfied—first, out of that portion of the estate still in the hands of the mortgagor, and then out of the parcels aliened, in the inverse order of their alienation—and this rule applies equally where the mortgagor has given mortgages of different dates on the estate.</p> <p>4. The purchaser of mortgaged- premises has constructive notice of the incumbrance, and takes it subject the eto, and that one stands in the relation of mortgagee and owner of the first mortgage, as well as purchaser, can make no difference in the application of the rule. A mortgagee is at liberty to deal with the mortgaged property, and purchase any portion of it, but, if he do so, there is no reason for exempting him from the equities which attach in the case of any other purchaser.</p> <p>5. As between grantee and mortgagor, the residue remaining in the hands of the mortgagor shall be applied to the payment of the mortgage debt; as between the grantee and mortgagee, the latter being a creditor with two funds, is required to proceed, primarily, against the fund upon which the grantee has no claim.</p> <p>6. The rule that when the equitable and legal estates unite in the same person, the equitable is merged in the legal estate, is not inflexible. Courts of equity are accustomed to treat the estates as merged or separate, as substantial justice may require.</p> <p>7. Objection to pleading not made in the court below will not be noticed on appeal.</p>

<p>1. Where an agreement is entered into between a creditor and his debtor, the terms of which are that the debtor is to execute a new promise with a surety, in a smaller sum, payable at a future day, the creditor agreeing to accept the new promise in satisfaction of the old one, the surety to be sufficient, and the new promise being executed and tendered and the tender kept good; Held, that such performance and tender constitute a bar to the action on the original demand.</p> <p>2. Where a defendant puts in no general denial or other defense based upon the facts as they existed at the commencement of the suit, but sets up as a defense matters subsequently occurring, he is not required to plead by leave of the court by supplemental answer, under the Code. Sec. 74, and amendments of 1879, p. 216, Sec. 3, are inapplicable to such case.</p>

<p>1. This court may take jurisdiction in an agreed case.</p> <p>2. The Constitution-confers original jurisdiction on this court to issue writs of quo zoarranto, and to hear and determine the same.</p> <p>3. The repeal of the statute (R. S. Ch. LXXIII), and the enactment of the Code remedy did not take from this court its original jurisdiction in quo warranto proceedings conferred by the Constitution.</p> <p>4. Both the Constitution and the statute now authorize the county commissioners to fill a vacancy in the office of county judge, without regard to the duration of the unexpired term.</p> <p>f>. B was on the 2d day of October, 1877, elected county judge for the term of three years. At the general election, held November 2,1880, D was chosen as successor, the term of D to commence on the 2nd Tuesday in January next thereafter. On the 26th of November, 1880, D having received his certificate of election, filed his oath of office and official bond, which bond was on the 8th December approved by the board of county commissioners. On the 1st day of January, 1881, D died, not having had possession of the office. Held, that B did not hold over, and that upon the expiration of his term, his successor having been duly elected and qualified, before his death, a vacancy occurred in-said office.</p> <p>6. The eligibility of the appointee of the county commissioners, and the regularity of the manner of his qualification, in the absence of facts tending to show the contrary, will be presumed.</p> <p>7. The parties having submitted- themselves to the jurisdiction of this court, it will not only determine their rights, but enforce its adjudication by the entry of an appropriate judgment.</p>

<p> Appeal from District Cov/rt of Gilpin County. </p> <p>The case is stated in the opinion.</p>

<p> Appeal from District Cov/rt of Jefferson Comfy. </p> <p>The case is stated in the opinion.</p>

<p> Error to District Court of Lake Comity. </p> <p>The case is stated in the opinion.</p>

<p>Under the Constitution, criminal courts may be created by “local or special ” acts, but their organization, jurisdiction and practice must be provided for by general laws, of uniform operation throughout the State.</p>

<p>Petition for Writ of Habeas Corpus.</p>

<p>Petition for habeas corpus.</p>

The complaint in this case alleged: “ That said Jacob Scherer on, to wit, the second day of January, A. D. 1880, was the owner of lots numbered (15) fifteen and (16) sixteen, in block numbered (61) sixty-four, in the east division of the city of Denver, in the county of Arapahoe aforesaid, and thence hitherto hath been and now is the owner of said lots.

Greene, the defendant in error, commenced his action in the district court, founded upon a judgment obtained in the Superior Court of Cook county, in the State of Illinois. Held: owned and possessed said four notes, until they were delivered to his assignee in bankruptcy, some time in the year A. D. 1870, and that said notes passed into the hands of said Greene, who sued upon them as aforesaid, by a sale by said assignee, some time ih the year A. D. 1873 or 1874.

Castagnio brought this action for work done by himself, Collitto and Wensen (the two latter having assigned their claims for work to Castagnio), ag’ainst Moffett and Le Fevre as partners. A verdict was rendered in favor of the plaintiff in the district court, and judgment entered, from which Le Fevre appealed to this court.

<p> Error to County Cowrt of Ouray County. </p> <p>The case is stated in the opinion.</p>

Sarah E. Eddy, the plaintiff in error, brought her action in the District Court of Weld county, to recover possession of certain property.

<p>1. It is an elementary principle that the object to be attained in the construction of a contract, is to discover and effectuate the intention of the parties, and to this end the court will adopt that construction which will bring it as near the actual meaning of the parties as the words they saw fit to employ, when properly construed, will permit.</p> <p>2. As a guide to a correct interpretation, the law also permits the subject-matter of the contract, the situation of the parties at the time of its execution, and all the surrounding facts and circumstances to be taken into consideration.</p> <p>3. A party will be held to that meaning which he knew the other party supposed the words to bear, if this can be done without making a new contract for the parties.</p> <p>4. When a contract is fairly susceptible of a construction that will support it, such construction ought to be adopted.</p> <p>5. It is not adding anything to a written contract to imply an obligation to do what was intended at the time it was entered into, and which is essential to its vitality and force.</p> <p>6. When a party enters into an agreement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he will not, of his own mere motion, do anything to put an end to that state of circumstances under which alone the agreement can be operative.</p> <p>7. Where a contract was set out in haee verba in the complaint and the answer only denied the authority of the person to execute it on the part of another; held, that the execution of the contract is thereby admitted.</p>

<p>'1. That the subject matter of a cross-bill is germane to the matters set up in the original bill, is all the law requires.</p> <p>2. It is not to be expected that matters of defense, or matters entitling a defendant to affirmative relief, will be fully stated in the original bill; the limit of the requirement is that the allegations of the cross-bill shall grow out of and be connected with the subject matter of the original bill.</p> <p>3. When affirmative relief is sought by a cross-bill, it is not to this extent a pure cross-bill, but partakes of the nature of an original bill, seeking further aid of the court beyond the purposes of defense. The relief sought must be equitable relief, or the bill will be held bad on demurrer.</p> <p>4. It is not essential to the granting of equitable relief that irreparable injury shall already have resulted from the acts complained of, it is only required’that the damage is.threatened or impending, and that a clear necessity be shown for affording immediate protection to some right or interest which would otherwise be seriously injured or impaired.</p> <p>5. The mere allegation that irreparable injury will result unless protection is extended is not sufficient, but facts must be stated, that the court may see how and why it would result, and that the apprehension of irreparable mischief is well founded.</p> <p>6. While one may have the right to enter the bed of a stream above his ditch, and to remove obstructions which may have changed or obstructed the course of the current so as to prevent the water froii entering his ditch, and have implied authority to do all that should become necessary to secure the benefit of the appropriation of the water, and may acquire an easement in the adjoining lands, yet the right thus acquired, must be held to the narrowest limits compatible with the enjoyment of the principal easement, which is the right to the use of the water. The most reasonable mode of effecting the object must be adopted. The controlling principle is, that the water shall be div rted in such a manner as not to damage or seriously endanger the lands of owners upon the margin or banks of the stream.</p> <p>7. Where a demurrer to a cross-bill is overruled, and the plaintiff elects to abide by his demurrer; affirmative relief may be awarded on the cross-bill.</p>

The complaint in this case substantially alleges that “ defendant, May 1st, 1880, sold and conveyed to plaintiff a certain ranch, with all the improvements thereon, plaintiff paying defendant therefor $1,100.00.