Volume 5 — Colorado Court of Appeals Reports

In June, 1889, appellant filed a bill in equity praying an injunction, and that the defendant (appellee) be restrained from opening the delivery boxes of plaintiff, and taking from the ditch, for irrigating purposes, water in excess of forty-five inches. Plaintiff is a corporation owning and controlling a ditch for supplying water to its shareholders (and perhaps others) for irrigation. Defendant was and is a landowner under the ditch, from which he gets his water.

<p>These cases are decided upon the authority of Farmers' Highline Canal and Beservoir Company v. White, ante, p. 1.</p>

<p> Appeal from the County Court of Pueblo County. </p>

<p>1. Corporations — Stockholders.</p> <p>A corporation cannot exist without stockholders or members.</p> <p>2. Same — Grants.</p> <p>A grant to a body organized as a corporation, by the execution of a statutory certificate, but which, at the time of the supposed grant was and continued to be without other organization, officers, stockholders or members; is inoperative.</p> <p>3. Same — Oeeicers—Powers.</p> <p>The statute which provides that the corporate powers shall be exercised by a board of directors or trustees, who must be stockholders of the company, from which body a president shall be elected, constitutes a limitation upon the corporate power.</p> <p>4. Same.</p> <p>In this case no stock was ever subscribed for or issued and no agreement by the promoters of the company in relation to its stock was shown to exist: held, there never was a board of directors competent to make a contract, nor any person who could execute an agreement for the company.</p> <p>5. Performance — Damages.</p> <p>It is necessary in an action against a city for damages for breach of contract, for the plaintiff to show performance or its legal equivalent.</p> <p>6. Appellate Practice — Immaterial Ebror.</p> <p>Where a party could not have sustained a judgment in his favor upon the proofs he produced, error in instructing the jury will not warrant a reversal.</p>

<p>1. Practice in Oivtl Actions — Verification of Pleadings.</p> <p>Tlie code requirement, that when any pleading is verified every subsequent pleading, except a demurrer, must be verified also, is mandatory. An unverified answer to a verified complaint tenders no issue, and judgment upon the pleadings may be entered as by default for want of answer.</p> <p>2. Amendments, in What Court Allowed.</p> <p>Upon the remand of a cause the court below may allow an answer to be amended by adding a verification, but this court is without power so to do.</p>

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

<p> Appeal ■from, the Qounty Gourt of Otero Qounty. </p>

<p> ¡Error to the County Court of Arapahoe County. </p>

<p> jError to the District Court of Arapahoe County. </p>

<p> Appeal from the Distriet Court of Arapahoe County. </p>

In this case the complaint contains three counts, all substantially the same as far as the alleged cause of action is concerned. One count from the complaint, and two short extracts from the second will be sufficient to show the allegations and supposed causes of action.

<p> Error to the District Court of Fueblo County. </p>

<p>Municipal Coepobations.</p> <p>The doctrines announced in McCord et al. v. The City of Pueblo, ante, p. 48, are reaffirmed in this case.</p>

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

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

<p> Appeal from the District Court of Bio Grrande County. </p>

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

<p>1. Appellate Pbactice — Bill op Exceptions.</p> <p>A bill of exceptions which fails to state that it contains all of the evidence does not present matters of fact so as to be considered by the court.</p> <p>2. Pbactice in Civil Actions — Paeties.</p> <p>Where there is a defect of parties plaintiff, the objection must he raised in the court below by demurrer or answer, otherwise it will not be considered upon review.</p> <p>3. Attachment— Chattel Mobtgages.</p> <p>A writ of attachment against a mortgagor of chattels does not authorize the officer to take property from the possession of a mortgagee, neither can the officer by such seizure reach any surplus that may be coming to the mortgagor. The statute prescribes the remedy an attaching creditor must pursue to make the mortgagor’s equity available for the payment of his debt.</p> <p>4. Assignments.</p> <p>A transfer of all the debtor’s property to secure the payment of parr ticular debts does not constitute au assignment for the benefit of creditors generally.</p>

<p> Appeal from the District Court of Rio Grande County. </p>

<p> Error to the District Court of Pueblo County. </p>

<p>1. Criminal Law — Obtaining- Credit by False Report — Indictment.</p> <p>To constitute tlie offense defined by statute (Gen. Stats., sec. 884) it is not necessary that an intention to defraud any particular person should exist. If the false report which has been procured results in defrauding any person of his property, the offense is complete whether the offender had such person in mind or not. An indict-meat setting forth that the person charged caused others to report' falsely of Ills honesty, wealth or mercantile character, and that by means of the report some person or persons, naming them, were imposed upon so that they extended credit to the offender, and that he thereby obtained possession of their property, would contain substantially all the facts necessary to constitute an offense.</p> <p>2. Identity — Variance.</p> <p>Where the identity of a charge is dependent upon an allegation which is unnecessary, or where an indispensable allegation is made need7 lessly specific, the unnecessary matter cannot be rejected as surplusage, but must be proven as averred, or the prosecution must fail.</p>

<p>Error to the District Court of Chaffee County.</p>

<p>Rule of Decision on Review.</p> <p>The verdict upon a question of fact fairly submitted is conclusive of the fact upon review.</p>

Ih March, 1892, plaintiff was tried for the murder of his' wife, was convicted of murder in the second degree and sentenced for life. The wife died December 31,1891, as.supposed and alleged, from injuries inflicted by the husband in beating and kicking her, some three weeks previous. The husband and wife kept a grocery store and sold spirituous liquors and beer.

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

<p> Appeal from the District Court of Pueblo County. </p>

<p>X. Repeeviit.</p> <p>In an action of replevin tlie plaintiff must recover on the strength of ■ -his own title, and make proof which in some way establishes a right in him to the possession of the thing replevied.</p> <p>2. Same.</p> <p>Where the property in controversy belonged to a voluntary association, by the constitution and by-laws of which the secretary and treasurer ■was intrusted with the custody and care of its property, and the plaintiff by consent, but without election or appointment was discharging the duties appertaining to the position, and the property had never been put into her possession: held, replevin therefor could not be maintained by her.</p>

This is a controversy between Stevens, the plaintiff in error, and the commissioners of Sedgwick county over a claim which Stevens makes as county superintendent of schools for services which he rendered.

<p>Absolute Sale.</p> <p>Where there is an absence of any such condition as the law requires to change a sale absolute in form into a mortgage or into a pledge, it is always upheld as a valid transfer, and the title of the transferee is not subject to impeachment.</p>

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

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

<p>1. Equity — Jurisdiction.</p> <p>A court of equity will not entertain jurisdiction where a plain, adequate and complete remedy can he had at law; but where a legal right has been invaded, if there is no remedy at law, or if the remedy which a court of law is able to afford is uncertain in its character, or fails in the full redress to which the suitor is entitled, jurisdiction will be asserted in equity.</p> <p>2. Ejectment — Parties.</p> <p>The locating of a public highway does not vest any such title or interest in the land in the board of county commissioners as to make it a proper party defendant in an action of ejectment, relating to the premises covered by the road; neither does the board exercise such acts of ownership over them as to make it a proper party defendant in such an action.</p>

<p>1. Jurisdiction — County Court.</p> <p>Tlie county court cannot, in a criminal case appealed from a justice of the peace, render a judgment affecting the rights of an absent defendant.</p> <p>2. County Court — Practice in Criminal Cases.</p> <p>The trial of a criminal case, appealed by defendant from the judgment of a justice of the peace to the county court, must be had cíe novo. It is error to dismiss the appeal on the ground that defendant failed to appear. The court has power, in such cases, to issue the requisite process to compel the attendance of defendant and force him to trial.</p>

<p> Appeal from the District Court of La Plata County. </p>

<p>1. Pleading — Practice</p> <p>When tlie complaint is upon a promissory note, and the verified answer denies its execution, it devolves upon plaintiff to show the execution, and, if executed by an agent, to affirmatively establish his authority, or show a subsequent ratification of his act.</p> <p>2. Corporation Law — Election of Officers.</p> <p>The only election which stockholders are authorized to hold at an annual meeting is that of a board of directors for the ensuing year. The president of the corporation must be chosen by such directors. The election of a president by stockholders is a nullity.</p> <p>3. Evidence.</p> <p>When the complaint is upon a promissory note, and the indebtedness for which the note was given is not stated, nor any facts which would authorize a recovery except upon the instrument, and where its execution is denied by verified answer, evidence tending to show an indebtedness to a third person, at whose request the note for such indebtedness was made payable to plaintiff, is incompetent.</p>

<p>1. New Tbial — Discbetion.</p> <p>The granting of a new trial upon the ground that the cause was tried ex parte, in violation of an 'oral agreement between counsel to the effect that both were to ascertain when the cause would be reached for trial and each was to notify the other, was a matter resting in the discretion of the trial court, and the question for determination on review is whether there was an arbitrary abuse of discretion.</p> <p>2. Coubt Boxes — Stipulations.</p> <p>Under a rule of the district court of Arapahoe county, which provides thatno verbal agreement of counsel with each other, with a party or with an officer of court, concerning the progress or management of any matter pending in court, will be enforced unless made in open court,” stipulations and agreements require three parties — the court being the third.</p>

<p> Appeal from the District Court of Montezuma County. </p>

<p> Error to the County Court of Bio Grande County. </p>

<p>X. County Commissioneks — Meetings of Boabd.</p> <p>Each board of county commissioners is required to meet at tlie county seat on the first Monday in January, April, July and October in each year, and at such other times as in the opinion of the board the public interests may require.</p> <p>2. G-bnbbal Road Ovebseeb, Appointment of.</p> <p>The January meeting of the board of county commissioners must be held by the old board and it is competent to appoint the general road overseer, and he may be thereafter removed from office for any reason satisfactory to the board.</p> <p>3. Amotion.</p> <p>Where an appointment to an office is during pleasure, or for a fixed period, with a discretionary power of removal, the office may be vacated and the removal made ex parte.</p> <p>4. County Commissionebs — Powebs—Special Meetings.</p> <p>The powers of the board of county commissioners are statutory. Bo authority is conferred upon it except at meetings held at the times prescribed by statute, or at such other times as in the opinion of the board the public interests may require. Bo one member has authority to call such a meeting, and their judgment can be expressed only after they come together. To make the meeting one at which such expression can be given, all the members must be present.</p>

<p>1. Contracts — Offer and Acceptance.</p> <p>A written order for an article, stating the price and terms of payment, and also that the order shall not he countermanded, hut he subject to the approval of the party to whom it is addressed, is simply an offer which requires acceptance to constitute a contract.</p> <p>2. Same.</p> <p>A proposal, while it remains unaccepted, is of no binding force. It may be withdrawn at any time before acceptance, but to render the withdrawal effectual it must be brought to the knowledge of the other party before the offer is accepted. ^ c cj</p> <p>3. Presumptions — Course of Mail.</p> <p>When it is proved that a letter properly directed and postpaid was^ deposited in the post office, it is presumed to have reached-its destination at the yegular time and to have been received by the person to whom it was addressed.</p>

On the 5th day of May, 1892, appellee instituted suit against appellant, claiming by her complaint that the defendant (appellant) was indebted to her in the sum of $1,890, being balance due for labor and services performed for the defendant, “ at her special instance and request,” as a general house servant, between May 1, 1885, and May 1, 1892, and that such services were reasonably worth $25 per month; that the amount so earned was $2,050, on which defendant had paid $160,…

<p> Error to the County Court of Arapahoe County. </p>

<p> Appeal from the District Court of Das Animas County. </p>

<p> JSrror to the District Court of Arapahoe County. </p>

<p>1. Specific Performance.</p> <p>Specific performance of a contract may be decreed where the subject-matter is purely personal. The ground of the jurisdiction, when assumed, is that the party seeking equitable relief cannot be fully compensated by an award of damages at law.</p> <p>2. Same.</p> <p>In equity, where the contract is mutual, an offer of performance or . tender is regarded as a performance.</p> <p>3. Same.</p> <p>A corporation may adopt the acts and contracts made by its promoter, before its incorporation, so as to be compelled to perform them specifically.</p>

Appellant being about to construct a mill and elevator at the town of Lamar, entered into negotiations with appellee to make and deliver the brick necessary for the structure, estimated to be about 450,000. Correspondence had been had between appellee and appellant in regard to the matter, resulting, as was supposed, in an agreement, and appellant sent a contract to appellee to be executed, which he declined to execute.

<p> Error to the District Court of Pueblo County. </p>

<p> Error to the District Court of Las Animas County. </p>

<p> Error to the District Court of Arapahoe County. </p>

<p> Error to the District Court of Arapahoe County. </p>

<p> Error to the District Court of’ Larimer County. </p>

<p> Appeal from the District Court of Pueblo County. </p>

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

<p>1. Change on Venue — Pbactice.</p> <p>While section 29 of the code provides that the court may, on good cause shown, change the place of trial when the convenience of witnesses and the ends of justice will be promoted by the change, the affidavit in support of the application should set forth the facts to which the witnesses whose convenience it was desired to subserve would testify, and where no answer had been filed, it should state the facts constituting the defense.</p> <p>2. Pbbsumption.</p> <p>When the evidence has not been preserved, it is to be presumed that the judgment was warranted by the proofs.</p>

<p> Appeal from the District Court of San Juan County. </p>

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

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

Appellant was operating by steam machinery a coal mine, and had in its employment a large number of miners and other men engaged in the different occupations pertaining to the prosecution of the work. Among them was George Melver, husband of Annie Mclver (appellee), aged 28 years, and Mathew Hanson, aged 16 years.

<p> Appeal from the District Court of Boulder County. </p>

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

The suit was brought by appellant for an accounting and for a share of profits arising from a working and sale of a mine. Held: and took a new lease of the same property, and that action was taken for the purpose and with the intention of depriving the plaintiff of his rights and interest in the lease.

<p>1. Instructions.</p> <p>It is the duty of the court, before the argument is begun, to give the jury such instructions upon the law applicable to the facts as may be necessary for their guidance.</p> <p>2. Verdicts, General or Special.</p> <p>In an action for the recovery of money only, the jury may in their discretion return a general or special verdict. The court has no authority to require either form.</p> <p>3. Special Findings.</p> <p>The court may, by questions stated to them in writing, require the jury to find specially upon particular questions of fact in case they render a general verdict, but if, in their discretion, they render a special verdict, such questions may be ignored.</p> <p>4. Special Verdicts and Special Findings Distinguished.</p> <p>A special verdict covers the whole case equally with a general verdict, but a special finding may embrace only a portion of the facts necessary to a judgment. Such findings do not take the place of a verdict, general or special.</p>

<p> Appeal from the District Court of Custer County. </p>

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

This litigation sprung from the insolvency of B. P. Brasher in 1886. Brasher did a wholesale liquor business in Denver under the name of B. P. Brasher & Company. His operations were extensive and he bought very considerable amounts of stock, which remained unsold at the time of the transaction involved in this suit.

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

<p> Appeal from the District Court of Pitkin County. </p>

<p>The judgment in this case is affirmed upon the authority of The Mollie Gibson Consolidated Mining and Milling Co. v. Sharp, ante, 321.</p>

<p>1. A&ency — When Principal not Liable.</p> <p>It seems that a party is not liable for the unauthorized act of his attorney in directing an officer to levy his writ on property belonging to one not a party to the action.</p> <p>2. Slander op Title.</p> <p>Malice is a prerequisite to a successful suit for slander of title.</p> <p>3. Same — Burden op Proop.</p> <p>Wherever the wrongful levy of a writ of attachment is the gravamen of a suit, the burden is with the plaintiff to show that in fact a levy was made, unless it concerns personalty and there be some circumstances of dispossession or disturbance of the owner’s rights which will sustain a suit.</p> <p>4. Attachment — Levy.</p> <p>A failure to pursue the statutory requirements is held to be fatal to a levy. The steps requisite to constitute a levy of a writ of attachment upon real property belonging to the defendant, but standing on the records of the county in the name of some other person, are stated in the opinion.</p>

<p>1. Cumulative Remedies — Mechanics’ Liens.</p> <p>Generally, if a party have several remedies for the recovery of the same debt, he may resort to them all, although he can have but one satisfaction.</p> <p>2. Same.</p> <p>The recovery of judgment for a debt due for labor and materials furnished by a contractor does not bar an action by the creditor to foreclose the mechanic’s lien to secure the payment of the same indebtedness.</p> <p>3. Mechanic’s Lien — Riling Statement.</p> <p>Under the provisions of the mechanic’s lien act of 1889, the failure to file the statement of claim of lien within the time prescribed by law did not defeat the lien, except as against innocent purchasers and incumbrancers in good faith. without notice, whose rights attached after such time had expired and before the claim was filed.</p>

Plaintiee in error was sheriff of Arapahoe county. J. P. Adams was undersheriff. On the 28th day of August, 1890, defendant in error brought suit against one Twining. On the 27th day of August an attachment was sued out in aid of the action, which on the same day was levied upon Twining’s real estate. On April 3, 1893, trial having been had to a jury, judgment was rendered against Twining for $1,811 of debt and $189.07 costs.

<p>1. Negligence — Evidence—Allegations and Pboof.</p> <p>Where the only negligence charged in a complaint for damages for injuries resulting in the death of a child was that occurring on the occasion of the accident, negligence or care on other occasions is not in issue, and evidence as to such negligence or care is inadmissible, and instructions based on such evidence are erroneous.</p> <p>2. Evidence — Waives.</p> <p>When incomxietent evidence is admitted against objection, the other party waives nothing by attempting to break its force, although the evidence offered for that purpose is equally incompetent.</p> <p>3. Same — Declabations—Bes Gestas.</p> <p>Declarations, to be res gestee, must be either contemporaneous with the principal fact, or its natural and spontaneous outgrowth. The connection between the statement and the fact must be such that the one is the evident interpreter of the other, both parts of one transaction. When thus connected, it does not matter that there is an appreciable lapse of time between them. But if there is a severance of the connection, it matters not how minute the interval which separates the transaction and declaration, they are distinct and independent of each other, and the declarations are not part of the res gestee.</p>

<p>Jurisdiction op Appellate Court — Pinal Judgment Necessary to Review.</p> <p>To give the appellate court jurisdiction, .the record must show a final judgment in the court helow, and the ruling of the trial court upon an interlocutory motion cannot he reviewed except in connection with the reeord of a final judgment.</p>

<p> Appeal from the District Court of Las Animas County. </p>

Oh the 5th day of March, 1881, the defendant Fisher and one E. J. Loper purchased of Vincent D. Markham lots 25 to 32 (both inclusive), in block 22, in Case and Ebert’s addition to the city of Denver, for $5,600. The lots were subject to an incumbrance of $1,740, which was assumed by the purchasers, deducted from the $5,600, leaving $3,860, which was paid in cash, of which amount Loper paid $409.20, and Fisher $3,450.80. The conveyance was made to Fisher.

<p>1. Exception to Judgment — Pbactice.</p> <p>An exception to the judgment of the trial court is a condition precedent to a review of the evidence.</p> <p>2. Pbaotice — Review of Evidence.</p> <p>When the questions presented for review are only those of fact, and there is evidence to support the finding, the judgment will not be disturbed.</p> <p>3. Same.</p> <p>Appellate courts have a right to assume, when called upon to review decisions of other tribunals, that the court found those facts which are essential to the judgment, and that all evidence necessary to support it was offered, when the record is not full on any given proposition.</p> <p>4. Opinions upon Applications fob Reheabing.</p> <p>It seldom occurs, except in those cases where some previously unsuggested legal proposition is found in the petition for rehearing, or there is some apparent basis for a contention that the court has overlooked or mistaken some facts which, according to the views of counsel, are of vital consequence in a settlement of the issue, that the court ever does more than simply deny the petition.</p>

<p>1. County — Garnishment.</p> <p>Counties are quasi and not municipal corporations, and are not liable to garnishment.</p> <p>2. Statutory Construction — Rule.</p> <p>In the construction of statutes tbe intention of the legislature is to be ascertained by considering together all acts in pari materia, whether they are acts in force or acts which have been repealed.</p> <p>3. County Clerk — Appearance by County.</p> <p>The county clerk lias no authority to enter the appearance of the county in any legal proceeding, and his answer for the county in garnishment proceedings does not constitute an appearance by it nor waiver of its exemption from garnishment.</p> <p>4. County Attorney.</p> <p>The statute provides for the appointment of a county attorney, who, when appointed, is the proper representative of the county in legal proceedings to which it is a party, and is authorized to appear for it in its litigation.</p>

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

This case was tried to the district court on a stipulation .which admitted the facts to be as stated, to wit: “First — It is hereby agreed and stipulated by and between the parties hereto that the following are the facts material to the issues herein: “ First — On or about September 8,1887, The South Park Land and Cattle Company, a Colorado corporation, filed for record in the office of the county clerk of Fremont county, at Canon City, in said county and state aforesaid, a…

<p> Appeal from the County Court of Ml Paso County. </p>

<p> ¡Error to the District Court of Arapahoe County. </p>

<p>1. Municipal Corporations — City of Denver — Notice of Claim. The charter of the city of Denver providing that before the city can be made liable for injuries •which may happen upon its highways, the person injured must give written notice either to the mayor or city council within thirty days after the injury, — service of the notice in the manner and form prescribed, and upon the person or persons designated, — is a condition precedent to the right of the injured person to maintain his action. Handing a notice to an alderman is not service on the city council.</p> <p>2, Same — Negligence.</p> <p>A cause of action against a city does not necessarily arise from an injury sustained by reason of a defective sidewalk. Negligence is always the gist of the action. The plaintiff must not only show the defect, but also that it was negligence on the part of the city to permit the defect to remain, which presupposes actual or constructive knowledge of the city, through the authorities, of its existence.</p>

<p>1. Appellate Pbactice — Objections and Exceptions.</p> <p>Questions relating to tlie competency of evidence and errors in instructions, which have not been preserved by objections and exceptions, will not be considered on review.</p> <p>2. Costs — Appobtionment of.</p> <p>Whenever the judgment of a justice of the peace is affirmed in part only on appeal, the court may apportion the costs.</p>

<p>1. Names — Initials—Process—Garnishment.</p> <p>The full name and proper initials of tlie defendant are necessary in a garnishment proceeding. A writ of attachment and notice of garnishment against W. J. hi. will not impound a debt due W. G. M., unless the proof shows that the garnishee had actual knowledge of the identity of the debtor and the person named in the process.</p> <p>2. Appellate Practice.</p> <p>When there is no evidence to support the verdict, the judgment entered thereon will be reversed.</p>

Appellee (plaintiff below) brought suit against appellants to recover, 1st, upon a promissoiy note for $500, made by the defendants payable to him, bearing date April 1,1890, with interest at one per cent per month from date until paid,upon which it was alleged only $30.00 had been paid ; 2d, for two hundred ($200) dollars, rent due the plaintiff for use of store. The promissory note was lost.

Previous to March, 1889, one J. W. Graham was engaged in selling goods in the town of Stuart, Bent county. On the 14th day of February, 1889, Graham made a bill of sale pf the entire stock of goods to one Allen P. Thurman, who made no payment, but executed his note and deposited pretended securities maturing in a short time, as collaterals. The sale was conditioned npon the payment of the note at its maturity.

<p>1. Contracts — Consideration.</p> <p>If a benefit accrues to bim who makes a promise, or loss or disadvantage to him to whom it is made, and accrues at the request or on the motion of the promisor, although without benefit to him, in either case the consideration is sufficient to susraiD assumpsit.</p> <p>2. CONTBACTS AGAINST PUBLIC POLICY VOID.</p> <p>Whenever a contract conflicts with the morals of the times, and contravenes an established interest of society, it is void. No right of action can spring out of an illegal contract.</p> <p>3. Contracts — Consideration.</p> <p>A contract by which one, in consideration of another’s leasing to the government a building for a post office at a nominal rent, agrees to pay to the lessor a certain sum for each month of the tei'm is valid, notwithstanding the pux'pose was to enable the lessor to outstrip other competitors for the location of the office at some other point.</p>

<p>1. Fe ato.</p> <p>The facts in this case are held sufficient to show that the sale in question was fraudulent as to the vendor’s creditors.</p> <p>2. Statute of Fbatos — Sale—Delivery.</p> <p>A sale by a vendor of chattels in his possession or under his control not followed by delivery of the thing sold is void as against creditors of the vendor.</p>

In May, 1893, and subsequent to that time, Moulton (plaintiff in error) was treasurer of the county of Garfield. J. T. McLean and W. J. Miller, copartners, were doing business as bankers at the town of New Castle, under the name of the Bank of New Castle. The banking firm solicited plaintiff in error to deposit in such bank a portion of the moneys in his hands and to come into his hands as treasurer with such bank.

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

<p>1. Lew and Sale op Read Estate tjndeb Execution — Pbesumption.</p> <p>Between a judgment debtor and a stranger, purchasing without notice of irregularities in the execution of the writ, the purchaser has the right to presume that all acts of the officer under the writ prior to the sale were in compliance with the law, and is only hound to know that there was a valid judgment upon which the writ was regularly issued, and that the property had been properly advertised for sale. His title would rest upon the judgment, the execution, sale under it, and the sheriff’s deed.</p> <p>2. Same — Indobsément op Levy on TVbit not Required.</p> <p>It is not necessary to a valid or effective levy on real estate that it be indorsed on the execution; the officer is required only to designate the particular land subject to the writ, by some record of what is done, accessible to -the judgment debtor and to tlie public.</p> <p>3. Same — Recobd of Levy.</p> <p>Tlie statute not requiring that a record of the levy of execution on real estate shall he made upon the writ, such record may be made elsewhere, provided it is equally public and permanent, á. Sale undeb Execution — Inadequacy oe Considebation.</p> <p>Gross inadequacy of consideration is a circumstance to be considered in connection with other facts where it is sought to set aside a sale of real estate under execution, but alone is not sufficient.</p>

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

<p> Error to the County Court of Huerfano County. </p>

<p>1. Complaint — Cause of Action.</p> <p>The complaint herein is insuffi cient to show that a cause of action upon the contract of subscription set out accrued to the plaintiff.</p> <p>2. Pleading — Legal Conclusions.</p> <p>When the contract upon which the suit is brought is set out in Imc verba in the complaint, allegations as to its legal effect are surplusage.</p>

<p> JError to the District Qourt of Arapahoe Qounty. </p>

<p>1. Appellate Practice — Bindings of Bact.</p> <p>.However slight the evidence may be, if it satisfies the trial court upon any proposition of fact which is essential, and there be no evidence contra, this court will not review the record and determine as an original proposition that it does not establish what is requisite to a judgment. ,</p> <p>2. Partnership — Liability of Retiring Member — Burden of Proof.</p> <p>Conceding that a firm did exist, and that it was transacting business almost up to the time the work was done to recover for which the action was brought, the burden is upon a partner to show its dissolution, and knowledge on part of the plaintiff or other matters which would relieve the retiring member from responsibility.</p> <p>8. Practice in Civil Actions — New Trial — Negligence.</p> <p>A defendant is not at liberty to take chances of the inability of plaintiffs to prove their case, and, where they succeed, obtain a.new trial because of his own neglect to be present at the trial.</p>

<p>1. Parties to Actions — Real Party in Interest.</p> <p>An action may be brought in the name of the person to whom a claim has been assigned, whether it be an open account or otherwise, although there may be annexed to the transfer the condition that when the sum is collected the whole or some part of it must be paid over to the assignor.</p> <p>2. Pleading — Justification.</p> <p>Where the defendant is sued for seizing goods and desires to justify the seizure under a chattel mortgage executed by plaintiff’s assignor, he should plead and prove the security. It is questionable whether, under a general denial, the defendant could make such proof.</p>

<p> Appeal from the District Court of PitJcin County. </p>

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

<p>1. Appellate Pbactice — Jubisdictiok ok Appeal.</p> <p>Thei'e can be no 'appeal to this court from a final judgment in favor of the party appealing.</p> <p>2. Same.</p> <p>No appeal lies from an order dissolving an attachment.</p> <p>3. Same.</p> <p>Neither joinder in error nor consent of parties can confer jurisdiction on this court by appeal.</p> <p>'4. Same — Wbit oe Ebbob.</p> <p>,In order that proceedings resulting in the dissolution of an attachment may be reviewed, the whole case must be brought up by writ of error.</p>

<p> Error to the District Court of Lake County. </p>

<p>Statute oe Frauds.</p> <p>A parol agreement between two persons that one should pay the rent of premises occupied by a third is not within the statute of frauds. It is an original contract and not a promise to answer for the debt or default of another.</p>

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

<p> Appeal from the District Court of Pitkin County. </p>

<p> Appeal from the District Court of Fremont County. </p>

Ou the 13th day of August, 1891, Mrs. Mattie J. McGee -was the owner of certain household goods, and, needing money, borrowed from appellee, giving her note, payable one year after date, for $500, secured by a chattel mortgage. The mortgage provided, for the retention of -the possession by the mortgagor until money became due. At the maturity of the note — ¡August 13,1892 — other goods had been added. More money was needed by Mrs. McGee, and the former loan . remained unpaid.

Oh the 19th clay of October, 1892, appellee, Chas. E. Quincy, and W. F. Reed, by a written agreement, became partners, for purchasing, feeding, handling and marketing cattle for a term of five years. Appellee, a ranchman, leased to the partnership, for the purpose of pasturage, three tracts of pasture land aggregating about 5,700 acres. By the terms of the contract, appellee was to furnish the land as his contribution to the capital of the firm free of rent and charge.

<p>1. Appellate Pbactioe — Abstbacts op Recobd.</p> <p>When a question presented for review is as to the sufficiency of the complaint, it should he printed in the abstract.</p> <p>2. Equity — Paetnbesbip Appaibs.</p> <p>All matters pertaining to the settlement of partnership affairs are peculiarly and specially cognizable in a court of equity.</p> <p>3. Pabtnebship — Dissolution.</p> <p>The withdrawal of a partner from a firm is not necessarily a full legal dissolution of the partnership.</p> <p>4. PAETITION — PABTNEBSmP ASSETS.</p> <p>Chattels real, bought or constructed with partnership money for the business of the firm, are regarded as any other chattel interests pertaining to the partnership. Hence partition thereof would not he practicable.</p> <p>5. Pbactioe.</p> <p>If the material allegations of a complaint are sufficient to confer jurisdiction, a special prayer may be disregarded, and sueb relief granted as is proper under the facts shown.</p>

Appellant brought suit against Lyda McCloskey and John Norris on a promissory note made by them jointly for $150, payable six months after date, with interest at 10 per cent, dated March 4, 1891, upon which a payment of $42.09 had been indorsed.

This suit was brought by appellee against the defendants to collect a book account of $135.08, and the amount of a promissory note for $249, executed by the firm of Dobbins & Co., payable to the order of John Livezey one day after date, dated May 13, 1891, assigned by Livezey to the plaintiff July 29,1891. The complaint is in the ordinary form.

<p> Appeal from the District Court of Boulder County. </p>