Volume 50 — Colorado Reports

<p>1. Evidence — Admissibility—In an action for the price of goods sold, correspondence of the defendant admitting the purchase or the receipt of the goods, is admissible as evidence of the liability.' — (5, 6)</p> <p>So, an invoice of the goods transmitted by the seller and of which the buyer admits the receipt.' — '(5, 6)</p> <p>The invoice showing that the goods were shipped to another, the defendant may be examined as to whether he had any contract with this party to furnish him such merchandise as that in question. — '(6-8)</p> <p>2. -Party as Witness — The plaintiff may call the defendant and examine him as to any matter which may tend to establish his demand. — (6, 7)</p> <p>And an officer of the plaintiff may testify as to any discrepancy in the different bills rendered by the plaintiff, and as to who was the owner of the goods alleged to have been sold to the defendant, and as to whether any part of the sum demanded has ever been paid.' — >(7)</p> <p>3. -Admission — With a Qualification — Defendant’s admission of the accuracy of the plaintiff’s account, but accompanied by a claim of a greater amount due to himself, is competent evidence of what is so admitted; and plaintiff may prevail unless the counter-claim is affirmatively established. — (9, 10)</p>

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

<p>1. Contracts — Construed—A suit by wife against husband, praying divorce and alimony, was composed, the husband agreeing to convey certain property and make certain payments to' the wife, and the wife agreeing, “to accept the payments herein made as a full settlement of the property rights between the parties, and the differences as they now exist.” At the institution of the suit the wife was the separate and sole owner of certain lands which she had bargained to another. A deed had been executed by both husband and wife, conveying the land to the purchaser, and, by permission of the wife, was in possession of the husband, to be delivered to the purchaser. In the divorce suit, this transaction was set up, and an injunction was prayed to restrain the husband from delivering the deed and receiving the purchase money. Held, that the clause quoted referred only to the claims of the wife to the husband’s property, and had not the effect to entitle him to receive and retain the purchase money of the wife’s land. — (20, 21)</p> <p>2. -Construction — That a construction of a contract for which, a party contends will render it grossly unjust and unfair to the other parties, is a persuasive reason to reject it. — (21)</p> <p>3. Corporation — Notice to Managing Officer — A corporation is affected by the knowledge of its president and managing officer, in a transaction in which it is represented by him. —(21)</p>

<p>1. Railway Companies — Stations—Among other duties, owing by railway companies to the traveling public, is that of providing'safe and convenient stations. — (26)</p> <p>2. Union Depot Company — Duties—A corporation organized for the purpose of maintaining a station or depot to be used by railroad companies, owes to the traveling public, as to the conduct of such station or depot, the same duty as is due from the railway company which maintains its own station; and its obligations toward the public are not affected by the agreement between itself and the railway company.' — (26, 27)</p> <p>3. -Duty to Those Attending Passenger to the Train— A corporation maintaining a depot for the accommodation of railway companies, in their passenger traffic, extends to all those desiring to travel by any of the railroads that avail themselves of such depot, an invitation -to come thereto, at such station, as well as to those who desire to accompany any such intended passenger, to aid him to the train, or bid him adieu. It owes to all such persons, as well as to the passenger, the duty of reasonable care to maintain the place in proper and safe condition, and it is liable to such person for any injury, which, without negligence on his part, befalls him by reason of its negligence, in this respect. It is liable for the acts of the employees of the railway company who give directions to the passenger, and those who so attend him, as to the location of the train which the passenger desires to take, and the course to reach it. A person attending the passenger, and obeying such direction, and, who is injured by the negligence of the depot company in respect to the condition of its premises, is entitled to an action against such company. — -(28-30)</p> <p>4. Verdict — Immaterial Interrogatory Not Answered — The failure of the jury to answer an immaterial question submitted to it, is no ground to withhold judgment upon the verdict.— (30)</p> <p>5. Damages — Elements—Loss of Time — Among the elements of damage from a personal injury is the loss sustained by being kept from an established business, which the injured person has founded and personally conducted. — (30-32)</p>

<p>1. Appeals — General Judgment on Several Counts — 'Presumptions — Where the plaintiff, declaring in three counts, prevails, and the findings and judgment are general, not disclosing what amount is awarded in respect of either count, the absence of evidence to sustain one of the counts will not he fatal, if there is competent and sufficient evidence to support the judgment under the other counts.— (35)</p> <p>2. -Harmless Error — And in such case the admission of incompetent evidence as to the unsupported count Will not reverse. — (35)</p> <p>3. -Findings oni Conflicting Evidence, sufficient and competent, will not he reviewed. — (37)</p>

<p>1. Appeals — Freehold—A claim asserted against lands, by mortgage, or a lien for taxes discharged, in no way involves the freehold. No appeal lies from a judgment rejecting such claim. —(41)</p> <p>2. Conveyances — Unrecorded—Effect—An unrecorded conveyance of lands does not take effect as against an execution creditor of the grantor, without notice. Purchaser of lands under execution against the heir, is protected against an unrecorded conveyance of the ancestor, in whom the title stands of record. -(41-44)</p> <p>3. Statute — Adopted From Another State — Construction— In adopting a statute substantially identical with'that of another state, the legislature are presumed to adopt with it the construction previously announced by the courts of such other state. — (50)</p> <p>4. Estoppel — By Conduct — One who appears to and opposes a petition of an administrator to sell particular land as pertaining to the estate of the decedent, basing bis opposition upon the ground that such lands are no part of the estate, but belong to another, and upon this ground prevents the allowance of the petition, will not be heard to afterwards assert a lien upon such land as a creditor of the decedent, even though he was in fact such creditor and, by the timely exhibition of his claim, might have subjected the entire estate of the deceased to the payment thereof.-r-(51)</p> <p>5. Tenant in Common — Lien for Taxes Discharged — Tenant in common of lands, may, under the statute, pay the tax upon his share thereof, though the tax is assessed upon the whole estate; and he may redeem his interest from a previous tax sale of the whole. — (52, 53)</p> <p>'He is under no necessity to discharge the tax upon the interest of his co-tenant, and will not be allowed a lien thereon for such payment made without request of the co-tenant.- — (52)</p>

<p>1. Principal and Surety — Construction of Contract — The maxim that the liability of the surety is strictissimi juris means no more than that when the liability of the surety under the contract is judicially ascertained; by the same rules which control the construction of other contracts, such liability is not to be extended beyond its strict meaning. — (69)</p> <p>2. -Contracts — Construction—Writing referred to, in a-bond of indemnity — the pertinent points of the writing are made part of the bond. Where the bond is to secure performance of a contract for the erection of a house, and expressly refers to such contract, and the contract provides that final payment is to be made, “upon contractor’s giving receipted bills for all labor and material, in full,” the sureties are liable for moneys necessarily expended by the owner to discharge liens asserted for material purchased and labor employed by the contractor, for which he had failed to pay. — (70)</p>

Original Proceeding. The opinion of the court is in response to a resolution and interrogatories of the house of representatives of the eighteenth general assembly: House Bill No. 243, a copy of which is attached to the resolution, provides that all proposed amendments to the state constitution and the text of any and all measures submitted under the provisions of recently amended section 1 of article V shall be published in full by the secretary of state for the prescribed…

<p>Constitutional Law — Executive Questions — Under sec. 3, art. 6 of the constitution, a question proposed by the governor as to the constitutionality of a pending bill, in case it shall pass the two houses of the general assembly, is premature.</p>

<p>1. Courts — Jurisdiction—A bank which borrows from a court, moneys which are in the custody of the court, subject to be disposed of in a pending cause, thereby becomes a quasi party to such cause, and subject to the orders of the court made therein, as to the disposition of such moneys.</p> <p>No independent action is required,' to compel payment of the moneys to those afterwards adjudged, in such case, to be entitled thereto. — -(90)</p> <p>2. Contracts — Construed—A bond executed by a bank to the clerk of a court, conditioned for the repayment, with interest, of certain moneys lent by the clerk, from the registry of the court, pursuant to an order of the court, the loan being for an indefinite time, provides that unless the money be permitted to remain in the bank for at least one year, the bank shall not be required to pay any interest thereon. This being the only exception expressed, it will be assumed that no other was intended. -(91-93)</p> <p>3. Evidence — Parol to Vary Writing — In the same case, held that parol evidence that the real agreement was that the bank should be required to pay interest only for full' periods of one year each, was inadmissible.— (94)</p> <p>4. Custom — To Vary Express Contract — Evidence of a custom is not to be received to vary the express terms of a writing. — (94)</p>

<p>1. Limitations — Seven Years Occupancy Under Record Title —A complaint to quiet the title to land which shows actual residence of the plaintiff for seven successive years, under a connected title deducible of record from a sale thereof by the sheriff of the county, under execution from a court of competent jurisdiction, states a cause of action, even though it affirmatively appears that the lands were the homestead of the execution defendant, and that no patent issued to him until many years subsequent to the plaintiff’s levy. — (98)</p> <p>Under the statute of limitations (Rev. Stats., see. 4087) the defendant in execution is precluded from questioning the effect of the execution sale, and his creditors are precluded in like manner. — (98)</p> <p>2. Quieting Title — Plaintiff’s Title — One in possession of lands and entitled to the protection of the statute of limitations, may have a bill to quiet his title.— (98)</p>

<p>1. Criminal Law — Information — An information which adopts the phraseology prescribed by the statute (Rev. Stats., sec. 1956) is sufficient to sustain a conviction of murder in the second degree. — (101,102)</p> <p>2. -Murder — Premeditation—One who, without justification, takes the life of another,' with malice and deliberation, is guilty of murder, though his malice and premeditation were directed against another than the person killed. — (102)</p> <p>3. -Evidence — Experts—The jury are not bound to accept the testimony of expert witnesses as to the sanity or insanity of the accused;, such testimony is to be considered as is that of other witnesses, and subjected to the same tests in de-' termining the weight to be accorded to it. — (105)</p> <p>4. —•—Insanity—An instruction that the test of the responsibility of the prisoner, is, whether he could distinguish between right and'wrong at the particular time of the homicide charged, is sufficient, though the court makes no attempt to distinguish between the different forms of insanity.— (105)</p> <p>5. -Instructions, as to the law of a defense of which there is no evidence, are properly refused.— (104)</p> <p>It is not the province of the court to direct' the jury as to what ■weight shall be accorded to any testimony. — (105)</p> <p>6. -Verdict — Polling' the Jury — Doubted if, at the common law, one convicted of felony was entitled to poll'the jury. The practice common in this state is in effect a polling of' the jury. The reception of the verdict in the absence of the prisoner’s counsel omitting to interrogate each juror 'separately, invades no substantial right. — (107, 108)</p> <p>But where a demand for a poll is made, it should be granted. —(108)</p> <p>7. Writ of Error — Harmless Error — The exclusion of-testimony, the substance of which is afterwards admitted, is harmless; so of the failure to repeat an instruction already given; and the refusal of an instruction substantially given in another form; or giving an instruction which cannot have misled the jury;' or an erroneous instruction as to murder in the first degree where the jury find guilty of murder in the second degree. —(103, 105, Í06)</p>

<p>Elections — Ballot—A ballot cast by a qualified elector, at an election field according to law, and at tfie time and “place provided by law, should be counted if, therefrom, tfie intent of tfie voter can be ascertained with reasonable certainty, unless this is forbidden by some positive provision of the statute. — (112)</p> <p>In tfie official ballot of a municipal election tfie name of Baldwin was printed as a candidate for mayor. Below this, and in tfie same space, tfie voter wrote the name of Wade. In. the space left for this purpose, fie placed a cross, tfie intersection of which was not directly opposite either name. He also wrote tfie names of three persons for whom he desired to vote as trustees, placing tfie name of tfie first of these in tfie space occupied by tfie last printed name, and with a cross at tfie right of it. Considering that the voter, if fie desired to vote for Baldwin, had no occasion to insert tfie name of Wade, it was. field that tfie ballot must be counted for Wade. — (113)</p> <p>White, J., and Hill, J., dissented.</p> <p>Another voter obliterated tfie printed name of Baldwin with ink, wrote tfie name of Wade above it, and placed a cross at tfie right. Held, that tfie ballot should be counted for Wade.. — (114) White, J., dissented.</p> <p>Another ballot was in perfect form, but tfie name of tfie person voted for and tfie cross were written with an indelible pencil. Held, that this ballot should also be counted for Wade. —(114)</p>

<p>1. Common Carriers — Passenger Entitled to Decorous Treatment — The contract evidenced, by railway ticket entitles tbe passenger not merely to safe carriage, but to respectful and decorous treatment from tbe employees of tbe carrier. Unprovoked, abusive and insulting language towards a passenger, by the conductor of tbe train, while exercising bis office, gives tbe passenger an action for compensatory damages, even though no violence is used and tbe conductor’s misconduct goes no further than words. — (143)</p> <p>2. Master and Servant — Liability of Master for Misconduct of Servant — A railway company is liable for insulting language towards a passenger; used by tbe conductor in charge of tbe train, without provocation from tbe passenger; and it need not appear that tbe conductor’s misconduct was authorized in tbe first instance, or afterwards ratified. Having appointed tbe conductor to perform, for it, tbe contract of carriage .which it has undertaken, bis misconduct, while performing such contract, is, in law, tbe misconduct of the company.— (143)</p> <p>3. Damages — Mental Suffering — Insulting and opprobrious language used towards a passenger by tbe conductor of a railway train, without provocation, entitles tbe passenger to compensatory damages.— (144-146)</p> <p>Tbe difficulty of determining tbe proper measure of compensation is not to deprive tbe passenger of bis remedy. — (146)</p> <p>4. Cases Overruled, Explained or Distinguished — Diamond Rubber Co. v. ITarriman, 41 Colo. 415, distinguished. — '(149)</p>

<p>1. Contract — Signature in the Name of Another — A contract limiting the liability of a railroad company for goods delivered to it for carriage, affects the owner of the goods, who makes the shipment, even although he signed such contract with the name of another person.— (153)</p> <p>2. Common Carriers — Contract Limiting Liability — A contract limiting the liability of the common carrier for goods entrusted to him, is without effect, unless both just and reasonable. — (156)</p> <p>The shipper is not bound by a stipulation in the bill of lading, to the effect that, in ’consideration of a lower rate, the goods shall be carried at his risk, and that the value does not exceed a sum .mentioned, where there is no examination as to the value of the shipment, the shipper makes no representation as to such value, and the valuation is arbitrarily fixed by the classification of the shipment, designated in the tariff schedule, without regard to value, and in fact, the value greatly exceeds the sum so arrived at. — '(157, 158)</p> <p>The pretended valuation in such case is purely fictitious, and no more than an arbitrary pre-adjustment of the damages which shall attend the loss.— (157)</p> <p>3. -'Negligence Presumed from Loss — Where the shipper proves delivery of the goods to the carrier, and loss, negligence of the carrier is presumed, and he is liable unless he can establish that the loss was within the exceptions set down in his contract. — (158, 159) -</p>

E. E. Armour, Judge. Defendant in error, Leonard Sedgwick, April’12, 1905, filed complaint in the district court of Washington county for divorce, wherein he alleges they have been husband and wife since 1900, and residents and citizens of said county and state for more than a year prior to commencing said action.

<p>Error to Proivers District Court — Hon. Henry Hunter, Judge.</p>

<p>1. Water Rights — Adjudication of Priorities — Scope bf Jurisdiction — The absolute right to the use of water may lawfully be decreed only upon the actual prior application thereof to a beneficial use. This is the extent of the court’s authority.— (181)</p> <p>2. --Construction of Decree. — In a proceeding under the statute (Mills’ Stats., secs. 2399-2439; Rev. Stats., secs. 3276-3320), the decree awarded to each of several ditches a volume of water equal to its carrying capacity, but by a proviso, limited the volume to a designated number of cubic feet per second of time, until those entitled thereunder should have increased the area of their cultivated land, prescribing the exact acreage then in cultivation, — -and thereafter to a volume “in the ratio and proportion of one cubic foot per second of time, for each forty acres of such additional lands,” and with the further proviso that such increase of cultivation and use of the water should be made with reasonable diligence.</p> <p>The decree was construed as absolute as to the volume which had'then been applied to beneficial use, and interlocutory, as to the residue of the carrying capacity of the ditches; and it was held that the rights, if any, conferred by the interlocutory features of the decree, were necessarily inchoate; that the contingent interests, so conditionally awarded, were held in suspension, and their existence or non-existence, as a completed and perfect interest, was left to future ascertainment in some appropriate proceeding; that these inchoate interests were not controlled by the rules which regulate the loss of vested water rights by abandonment; that the use by the proprietors of one ditch of the full capacity of that ditch, only during high water, and in full recognition of the superior rights of the others, as declared in the absolute features of the decree, had not the effect to establish a use under the conditional provisions of the decree, superior to the absolute right conferred by the decree upon such other ditches.— (181-184)</p> <p>3. -Adverse User — The use of a specified volume of water, only after others entitled to waters from the same source have been satisfied, and in full recognition of their superior right, is not adverse to such other consumers, and as to them confers no right; and the actual use by such other consumers, with the full recognition of their superior right, for eleven years, of a specified volume of the water, confers upon them respectively, a vested right as to the volume of water so used. — (182)</p> <p>4. Judgments — Construction of Record — Where a decree is susceptible of two meanings, one in accordance with the statute, and the other in disregard of it, the former must be accepted. — (182)</p> <p>5. Cases Overruled, Distinguished or Explained — Waterman v. Hughes, 33 Colo. 270, distinguished. — (185)</p>

<p>1. Passenger Carrier — Baggage—Even an article which is properly baggage, cannot he checked on the ticket of one not the owner thereof. — (188, 189)</p> <p>Baggage includes such articles of necessity or convenience as are usually carried hy the traveler for his personal use, comfort, or protection, during his journey. What articles are within the category depends, in some measure, upon the circumstances of each case. — (189)</p> <p>The carrier may lawfully require that a gun should he carried as baggage, only when An a case; and when such a rule has been prescribed, the carrier may refuse to accept or carry the weapon, unless the rule is complied with. — (189)</p> <p>The baggage-master is not under duty to inquire as to the contents of a bundle offered for carriage, which is similar to those commonly carried as baggage; and where such a bundle is accepted, with a gun concealed therein, and its presence is not, at the time, brought to the attention of the carrier’s agent, it is not to be regarded as baggage.— (189, 190)</p> <p>2. -Free Passenger — Where the passenger rides free the carrier is liable for his baggage, only where its loss is occasioned by the carrier’s negligence, not contributed to by the negligence of the passenger.— (190)</p> <p>A passenger who delivers to the carrier an article which is not baggage, concealed in a bundle such as are usually carried as baggage,, without informing the carrier of its presence, must be held to contribute, by this concealment, to the loss of the article, and has no action therefor. — '(190, 191)</p> <p>3. Appeals — Excessive Damages — An award of damages, in'excess of what is shown by the evidence, is error. — (191)</p> <p>4. Evidence — Admissions of Law — The court is not concluded by the agreement of counsel as to the law.— (190)</p>

<p>Appeal from Larimer. District Court — Hon. Harry P. Gamble, Judge.</p>

<p>Í. Judgment — Of Court of Another State — Effect — The liability of the subscriber to the stock of a corporation organized under the laws of Colorado, is to be ascertained by the laws of this state. A court of another state has no jurisdiction to declare an assessment upon such stockholders, in order to discharge the liabilities of the corporation; and such, assessment, made in a proceeding to which the subscribers were not parties, and did not appear, will not support an action in Colorado, against subscribers residing in Colorado, even though it is shown that the corporation had migrated to such other state, accepted the laws thereof, conveyed all its assets thereto, and afterwards conducted its business there.' — (208)</p> <p>2. Receiver — Foreign—Right of Actiora — Comity—The receiver of a corporation who has no other title to its assets than that derived from the order of the court appointing him, cannot maintain an action in the courts of another state, to recover such assets.</p> <p>The doctrine of comity has no application to such case.— (209)</p> <p>3. Corporation — Liability of Stockholders Upon Unpaid Stock, is to be determined by the laws of the state of its organization. An order of a court of Nebraska assessing the stockholders of a Colorado corporation, is without effect as to stockholders residing in Colorado who were not made parties to such proceeding, and do not appear therein. — (20.9)</p>

<p>1. Contributory Negligence — Not a Bar to Plaintiff’s- Action, if the defendant, before the injury, knew of the plaintiff’s peril, and might, by ordinary care, have avoided the injury. — (214)</p> <p>2. --Position1 of Peril Produced by Defendant — If the plaintiff is put in peril by the defendant’s negligence, the latter cannot avail of the plaintiff’s mistakes or errors of judgment, in attempting to escape the peril, as contributory negligence. — (215)</p> <p>3. Instructions — Matters Not in Controversy — The jury should not be required or allowed to pass upon matters not in actual controversy in the case. An instruction which submits a question upon which no claim is made, or evidence given, by either party, is error.— (214)</p> <p>4. -Multiplicity of, disapproved. — (216)</p> <p>5. Precedents — Authority—An opinion is authority only upon the point decided. — -(214)</p> <p>6. Cases Overruled, Distinguished or Explained — Denver, etc., Co. v. Spencer, 25 Colo. 9, explained and distinguished.— (214)</p> <p>7. Passenger Carrier — Street Railway Company — Duty to Passenger Alighting — The conductor of a street railway car must not only stop his car long enough to allow the passengers to alight, but he must exercise ordinary care to see that no passenger is in the act of alighting before he again sets the car in motion. — (216)</p>

<p>1. Trusts and Trustees — Following Trust Funds — A trustee enters into an arrangement with a corporation operating a mine under a lease with an option of purchase, and agrees to make certain advances, hut reserves the right to withdraw at any time from the enterprise. After a very large investment of the trust funds he withdraws accordingly, and the investment is forfeited. Held, that though the trustee afterwards procured title to the mine from the owners, under a new contract, the investment made by the trustee of trust funds, under the first arrangement, was not to be charged upon the properties as against the assignee in bankruptcy of the trustee, even although the trustee, was, by the terms of the first arrangement, entitled'to an option to purchase the mine in his own name, to be procured for him by the mining company, and might have acquired title to the mine under such option. That the case was not one for the application' of .the equitable doctrine that things which ought to have been done are regarded as done. — (218-223) ■ ,</p> <p>The effect of the prior decisions ■ of this court, is, that if the estate, sought to be charged with a lien for trust moneys unlawfully diverted from the trust, was augmented by, or received the benefit of the trust moneys, or of the property purchased therewith, such' estate -may be impressed with a preferential lien; but where' the moneys improperly diverted from-'the trust are traced into a specific property which is worthless, the successor, representing the trust,- will not be permitted to waive his claim upon the worthless investment, and assert a preferential lien upon the' general as.sets pertaining to the estate of the defaulting trustee.— (226; 227)</p> <p>2: Sale of Chattels — Non-Delivery—Effect in Equity — A trustee sold certain mortgages pertaining to the estate, and received from the purchaser the full value thereof. He had power, by the terms of the trust, to make the sale, and the purchaser was not required to see to the application of the purchase money. Held, that even though the mortgages remained in' possession of tíuch trustee, and were subsequently sold by him to other parties, as between the original purchaser and the assignee in bankruptcy of such trustee, and the successor in the trust (the latter suing to establish a preferential lien upon the bankrupt’s estate, for the value of the mortgages), the sale was to be regarded in equity as a completed transaction. — (224, 22§)</p> <p>3. Cases Distinguished or Explained — First National Bank v. Hummel, 14 Colo. 259; Hummel v. First National Bank, 2 Col. App. 571; Holden v. Piper, 5 Col. App. 71; McClure v. La Plata County, 19 Colo. 122; Hopkins v. Burr, 24 Colo. 502, explained. — (226)</p>

<p>Family Expenses — Statutory Liability of a Wife — Under the act of April 6, 1891 (Laws 1891, 238; Rev. Stats., sec. 3021), what are “family expenses,” chargeable against both husband and wife, is to be determined by the circumstances of each case. A buggy purchased by the husband, while living with the wife, and which is used not only by the husband, but by the members of the family, while they are so living together, is a family expense for which the wife is liable. — (229)</p>

<p>Practice — General Verdict on Good and Bad Counts — Where, in an action for negligence, the plaintiff complains in two counts, one for negligence at common law, the other for a failure to comply with a void statute, and the cause is tried upon both counts and submitted to the jury, under instructions which apply such void statute, exacting compliance therewith on the part of defendant, and the verdict is general, a judgment for the plaintiff must he reversed.— (231, 232)</p>

<p>1. Husband and Wife — Right of the Wife in the Acquisitions of the Husband During Coverture — The wife has no such interest in the .property acquired - by the husband, during the matrimonial relation, as entitles her to an action, the sole purpose of which is to secure a division of such property. No such action will be entertained, either during the coverture or after the marriage relation is dissolved. — (235)</p> <p>2. Writ- of Error — Judgment—Where the- complaint states no cause of action, and no amendment can supply its defects, a judgment for plaintiff will be reversed, and the court below directed to dismiss the action. — (235)</p>

<p>Error to San Miguel County Court — Hon. M. L. Brown, Judge.</p>

John R. Dixon, Judge. Plaintiff in error (defendant below) was convicted in the police court of the City and County of Denver, for violating sections 1125 and 1126 of the municipal code of said city. On appeal to the county court, he was again convicted, and the case is here on error. Said sections are as follows: Sec. 1125.

<p>1. Divorce — Writ of Error — Limitation—The proviso to sec. 2123 of the Revised Statutes, that a writ of error to review a decree of divorce* shall be sued out within six months from the date of the decree, and not after that time, is a statute of limitations.</p> <p>As such, its protection may be waived. — (245, 246)</p> <p>But if the defendant in error moves in apt time to dismiss the writ of error upon this ground, the motion will, where the writ of error was not, in fact, taken out until after the lapse of six months next succeeding the entry of the decree, be allowed — (245-247)</p> <p>2. • Writ of Error — Nature of Process — Jurisdiction of the Person, How Obtained — A writ of error is a new suit prosecuted by the plaintiff in error against the defendant in error. The court of review obtains jurisdiction of the person of the latter by his voluntary general appearance, or by the service upon him of scire facias to hear errors.' — (245)</p> <p>3. Motion to Dismiss Writ of Error Because Not Sued Out In Time — No inconsistency is involved in a motion to dismiss a writ of error, under a general appearance. Such motion, interposed before joinder in error, or anything equivalent to it, is an appropriate interposition of the statutory limitation, and is in apt time.</p> <p>Such motion does not attack the jurisdiction of the court over the person of the defendant in error, and the general appearance therein does not waive the objection.— (246, 247)</p>

<p>1. Water Rights — Adjudication of Priorities — Effect of Decree — Several appropriations from the same stream were made at different dates, all the appropriators using the same ditch. A decree in proceedings under the statute, awarded to these appropriators priorities as of the date of the first appropriation. No appeal having been taken, or other proceedings to question the decree, within the statute of limitations, it was held that the decree fixed forever the priority of the whole appropriation, as of the date of that first in point of time, though in fact all’ but the first were made at a much later date.— (250, 251)</p> <p>2. Water Rights — Appropriations—Means of Diversion — It seems there may be an effectual appropriation by the diversion of water through a ditch already constructed by another, the right to use such ditch as a conduit being acquired; by contract with the owner.— (254)</p> <p>The respective rights of the parties are controlled by their intentions in this agreement.— (254, 255)</p> <p>3. Contract — Construction—Where the proprietor of an irrigating ditch' verbally agreed that two others might use it for conveying water to their claims, if they would help to keep it up, nothing being said as to what or how much they should do, held, it was tó be presumed that each was to do an amount of work proportionate to his share of the water to be conveyed through the ditclr. — (257)</p> <p>4. -Contemporaneous Conduct of Parties — In seeking the intention of the parties to a verbal contract, vague in its terms, statements by those interested, made at the time, to which each assents, and the contemporaneous acts of the parties, or any of them, not objected to by others, furnish the best evidence, after the lapse of many years.— (255)</p> <p>5. Evidence — Competency—Effect — In ascertaining the respective rights of several appropriators of water, the junior appropriators using a ditch previously constructed by the senior, the statements of claim made, and testimony given by the parties, in a proceeding for the adjudication of priorities instituted shortly subsequent to the junior appropriations,-is-competent evidence, and superior in value to the verbal testimony of the appropriators and others, later in .interest, given years afterwards, as to their recollections and understandings.— (255)</p> <p>Such statements of claim and testimony given" in the adjudication proceedings, conclude the parties thereto and their successors in interest.— (256, 257)</p> <p>6. Appeals — Finding Not Supported by Evidence — A.finding not supported by any competent evidence must be set aside. The decree based thereon falls with such finding. — (257)</p> <p>• 7. -Decree Reversed With Directions — The appeal being from a decree in an equity cause, the decree was reversed with directions to the court below to so modify it as to conform to the views expressed in the opinion. — (258)</p> <p>8. Costs — Equity Cause — Apportionment — Where, in a. bill to quiet title, each party fails in his contentions, it is fair that, inasmuch as they are equally interested, each should pay one-half the costs.— (258)</p>

<p>1. Chattel Mortgage — Acknowledgment — The acknowledgment of a chattel mortgage may, where no fraud is charged, be effectually taken and certified by the cashier of a bank which is the mortgagee. The record of the mortgage so evidenced, is constructive notice to all the world.— (261)</p> <p>2. -Possession Remaining With the Mortgagor — Where the mortgagor of chattels is permitted to retain possession after maturity of the mortgage, for more than the period prescribed by statute, the mortgage is constructively fraudulent, and without effect as to a mortgage executed prior to the maturity of the first, even though such second mortgage is expressly declared to be subject to the first. — (260)</p>

<p>1. Trusts — Definition1—In its technical sense, a trust is the right, enforcible only in equity, to the beneficial enjoyment of property, the legal title of which is in another.</p> <p>In its more comprehensive sense, it embraces every bai1ment, every transaction between principal and agent, or factor, every deposit, and indeed, every matter in which trust or confidence is reposed.— (266)</p> <p>2. Statute of Limitations — What Trusts are Within — Whenever the subject-matter of a trust is such that the right of the beneficiary may be asserted in the courts of common law, the statute of limitations (Mills’ Stats., secs. 2900, 2909, 2910; Rev. Stats., secs. 4061, 4070, 4071) may be insisted on as a bar, even though equity would have concurrent jurisdiction, and though in the particular casé relief is sought in equity; otherwise where the jurisdiction of equity is exclusive. — (266, 267)</p> <p>Negotiable bonds, in defendant’s possession, to be delivered to the plaintiff, were, it was alleged, converted by defendant. Held, that as an action at law therefor might have been maintained, the statute of limitations was a good plea to an equitable action to enforce the trust.— (265-267)</p> <p>3. -When the Action Accrues — Where a demand is necessary, before the institution of an action, the statute does not begin its course until demand is made. The defendant, named as trustee in the mortgage of a corporation executed to secure a series of bonds, covenanted therein to certify the bonds, and deliver them to the corporation mortgagor, “or to its order.” The mortgagor directed the trustee to hold certain of the bonds for one Simpson, plaintiff’s intestate, and deliver the same to him “or to his order.” Held, that the order, when accepted by the trustee, constituted a continuing executory contract, indefinite as to its term; that it was not terminated until delivery made according to the terms of the order; or demanded, or until some tortious act committed by the defendant, inconsistent with the right of the beneficial owner, and terminating the defendant’s right in the bonds; that the delivery of the bonds to one who unlawfully assumed to be the- agent of Simpson, was not a denial of the right of Simpson, nor an assertion of title to the bonds, by the trustee; that the trustee might still have followed and retaken the bonds, and that as Simpson then made no demand, and did nothing to terminate the contract, it still subsisted, and the cause of action did not accrue until demand was subsequently made by the executor.— (261-269)</p> <p>4. Evidence — Admissions in Pleading Afterwards Withdrawn — An allegation in a verified pleading, which is omitted therefrom, as subsequently amended, is admissible as evidence against the pleader, though not conclusive, and may be considered by the court without being formally tendered in evidence. — (268)</p>

<p>1. Official Bond — Requisites—A bond which contains no words by which the obligors bind themselves to do anything, which names no obligee, and is delivered without authority given to insert the name of an obligee, is without legal effect. — (274)</p> <p>2. --Liability of Surety — The sureties in an official bond are not liable for the private and personal wrongs of the officer, not done by virtue of his office, nor under color of his office, e. g., where a constable commits a trespass, under pretense of process, when in fact he has'no process, and acts of mere malice. — (276, 277)</p> <p>3. Pleading — Conclusions of Law — A complaint against a constable and the sureties in his official bond, for misconduct of the former, alleged that he was acting “in the line of his duty, under color, and by virtue of his office.” Held, a mere conclusion of the pleader. — (277)</p>

<p>1. Constitutional Law — Legislative Powers — Regular Session — In regular session the general assembly is at liberty to act upon any question within legislative authority, in any manner not in conflict with the state or federal constitution. The power to determine the subject-matter of its action, in regular session, is with the general assembly itself. — (284)</p> <p>2. —i—Special Session — While the executive, in convening the legislature in special session, has no power to direct what legislation shall be enacted, he has, under the constitution, the sole authority to designate the particular subject-matter to which legislation shall be directed. If this duty is not performed by the executive, and if the proclamation calling the special session fails to name any particular subject-matter to which the legislature is to direct its attention, it can enact no law at all.' — '(284, 285)</p> <p>And it is not sufficient for the governor to name a Certain class of artificial persons, concerning which laws may be enacted, leaving the legislature free to legislate in regard to them, at will. This is to devolve upon the legislature a duty and authority which the constitution reposes in the governor alone.</p> <p>A proclamation convening the general assembly in special session, naming as the purpose for which it is to assemble, “Tu enact any and all legislation relating to, or in any wise affecting, corporations, both foreign and domestic, of a quasi-public nature,” is too broad and indefinite to comply with the intent of the constitution (art. IV, sec. 9), because it leaves to the legislature itself, the choice of the subject-matter or matters upon which legislation shall be undertaken.— (286, 287)</p> <p>The act of March 14, 1902 (Laws 1902, c. 1; Rev. Stats., secs. 5480-5496), is void. Hill and White, J. J., dissent. — (283-287)</p>

<p>1. Pleading — Complaint—Separate Causes of Action — Under the provisions of the code (sec. 76), the defendant may insist that separate causes of action shall be separately stated. To deny a motion to this effect, interposed in apt time, is prejudicial error. But there is no requirement that the plaintiff shall state in separate counts the several distinct matters upon which he relies to support a single cause of action. Therefore, in an action for an injury attributed to the negligence of defendant, where the acts and omissions' complained of produced a single injury and one damage, which are the subject-matter of the action, both common-law and statutory negligence may be charged in the same count.- — (312, 313)</p> <p>And the plaintiff will not be required to elect between them. — (314) ' ■ ' ' '</p> <p>2. -Construction — A complaint is to be considered as a whole. Particular averments, not in themselves constituting a cause of action, but which, taken in connection with others, have or may have this effect, are not to be stricken out. — (313)</p> <p>3. -Certainty — In an' action by servant against master for personal injuries attributed to the negligence of the latter, in failing, among other negligences, to provide safe and proper appliances for stopping certain cars moving in the passage-way where the servant was employed, defendant moved the court to require plaintiff to make the complaint more specific as to the appliances, the omission to provide which was charged. Held, that inasmuch as the defendant must know what appliances he had provided, and could not be misled by the generality of the averment, the motion was properly denied.- — (313, 314)</p> <p>4. -Negligence — The servant complaining of the master for negligence must state facts and circumstances from which the law will imply that a legal duty resting upon the master has been violated. But where the complaint for a personal injury sustained by the servant while employed in a coal mine, attributed such injury to-the master’s failure to exercise reasonable care to provide safe, proper and necessary appliances for stopping certain cars operated in the entry or passage-way where the plaintiff was employed, so as to effectually secure and prevent them from getting beyond control, and running down and over the track where plaintiff was serving, in the course of his employment, it was held sufficiently full and certain.— (314, 315)</p> <p>•5. Master and Servant — Appliances—Plaintiff, employed in defendant’s coal mine, was conveying empty cars from the pit to a certain parting, or side-track. Loaded cars coming from the other direction escaped from the driver’s control, ran down a declivity in the track, and collided with those which plaintiff was driving, doing him serious injury. It appeared that a stop-block or bumper was customarily provided at such places, by those operating coal mines, to stop a car, and prevent it from running down the track, where other means failed;, that the stop-block in this mine was out of order and could not be operated; that it had been in this condition for a fortnight; that the servant charged with the duty of keeping it in order knew of its defective condition; that defendant neither knew of the defect, nor was negligent in not informing himself of it; and that this defect was the cause of the escape of the car, and of the plaintiff’s injury. Held, the master was liable. — (315-320)</p> <p>6. -Negligence of Master Concurring With That of Fellow-Servant — Where, in the action of servant against master alone, the complaint charges negligence against both the master, and another servant, evidence of negligence on the part of the master suffices. — (321)</p> <p>7. —■—Servant’s Assumption of Risk — Contributory Negligence — A servant obeying the orders of those in authority over him is excused, unless he thereby incurs a danger so manifest and imminent that p, person of reasonable prudence would refuse obedience, even under the penalty of discharge. — 1326)</p> <p>8. Appeals — Harmless Error — Where, upon competent testimony admitted, the verdict is a proper one, and a different verdict could .not have been supported, the admission of'incompetent testimony is harmless.— (320)</p> <p>So of any evidence which could not have prejudiced the defeated party.— (321)</p> <p>So of a variance between the allegations and the proofs by which the adversary party is not misled. — (320)</p> <p>9. Evidence — Opinions—A question as to whose duty it is to keep in repair the appliances provided in a coal mine, for preventing the escape of cars as they are moved along the tracks, is one of fact, and not merely of -opinion.— (320)</p> <p>10. -Variance — Substance of the Issue — A'charge of failure to provide proper and safe appliances is supported by evidence that the appliance provided, though a proper one, was so out of repair as to be useless. — (322)</p> <p>11. Damages — Personal Injury — Elements of Damage — A minor suing for a personal injury may recover not only for the mental and bodily suffering, occasioned by the injury, but for liabilities incurred by him in being cured, or treated for his injury. That he might avoid liability for the expenses so incurred, by reason of his minority, is no bar to the recovery. His minority is a personal privilege of which no third person can have advantage.— (321)</p> <p>12. -Remittitur — An error in awarding damages to which the plaintiff is not entitled may be cured by a remittitur in writing, filed with the clerk of the trial court. — (325)</p> <p>13. Instructions — Construction—Instructions must be considered as a whole. Where, in an action by servant against master for negligence in the matter of appliances, the duty of the master is properly and clearly stated in the charge, as that of reasonable care only, objection made to a subsequent passage in which it is declared that the. master is liable if the appliances were not of such character as a reasonably prudent person would consider safe, was held to be without merit.— (322, 323) '</p> <p>14. -Objections to, and Exceptions — A general objection to an instruction containing independent and distinct propositions of law, some of which are correct, will not suffice. It is the duty of counsel in such case to point out the particular part of the instruction to which objection is taken. — (324)</p> <p>15. Proximate Cause — A loaded car escaped from control and ran down a declivity in defendant’s coal mine, injuring plaintiff, an employee. The failure to prevent its escape was due to the defective condition of the stop-block; but its escape from the control of the driver, in the first instance, was attributable to the mutinous conduct of the mule drawing the car. It appearing that rebellion on the part of the mule was of frequent occurrence, that the defendant knew this, and that if the appliance had been in good order the injury would not have occurred, it was held, that the misconduct of the mule was not to be regarded as an efficient intervening cause, and that the defendant’s negligence in the matter of the stop-block was the proximate cause of the injury. — (326, 327)</p>

<p>1. Passenger Carrier — Who is a Passenger — A passenger alighting from a street car had reached the ground; but a coil of rope attached to or part of the trolley rope, improperly and negligently left upon the floor of the car, in front of the passenger’s seat, or upon the steps, liad, without fault on his part, become wound about or entangled with one of the passenger’s feet, and the car being suddenly set in motion, he was thrown down, dragged along the ground and seriously injured. Held, that though the passenger had quitted the car, and reached the ground, he’was nevertheless still a passenger.— (332, 333)</p> <p>2. Negligence — Presumptions—Held, in the same case, that though at each change of direction of the car, at the terminus of its route, it was necessary to change the trolley rope, it was the duty of the street railway company to provide a suitable trolley rope and pole, and suitable attachments thereof, and not only to see that the rope was properly fastened when the car began its route, but to exercise the highest degree of care consistent with the operation of the car, to see that the rope remained fastened, and in a safe place, during the entire trip. No satisfactory explanation of the improper and dangerous placing' of the rope being given, the maxim res ipsa loquitur should apply.— (334, 335)</p> <p>The maxim applies as between passenger and carrier, whenever injury occurs to the former, even in making a voluntary movement, if such injury is caused by negligence In the defective condition of the carrier’s appliances, or his negligence in the management of the vehicle. — '(335, 336)</p> <p>3. Evidence — Hearsay—In an action against a street railway company for an injury to a passenger, attributed to negligently leaving a coil of the trolley rope in a dangerous place, it was proposed to show by the claim agent of the railway company that for a long period all reports of accidents occurring on the lines of the company had been made to, and examined by him, and that during all his experience no claim for injuries, like the one in question, had ever been presented. Held, pure hearsay and incompetent.— (337, 338)</p> <p>4. --In Rebuttal — In an action against a street railway company for an injury to a passenger, attributed to negligence in the management of the trolley rope, the defendant gave evidence, not limited as to time, in respect to what had been usual and customary in the management of these ropes. Testimony as to the same matter, as existing at the time of the trial, was held properly received in rebuttal. — (338, 339)</p> <p>5. -Personal Injury — Medical Expenses — Reasonable Value — Expert evidence is not indispensable to enable a jury to ascertain the reasonable or unreasonable character of a physician’s bill.— (341)</p> <p>6. Instructions — Not Applicable to the Facts, as exhibited in the evidence, should be refused. — (342)</p> <p>7. -Duty of Counsel to Pray — Defendant who, in an action for personal injuries, offers no instruction as to damages, is not in position to complain that the instructions given do not, more in detail, set forth the elements of damage. — (340, 341)</p>

<p>1. Bankruptcy — Effect as to Liens — The trustee in bankruptcy takes the estate of the bankrupt subject to all liens, incumbrances, and. equities, existing against it at the date of the adjudication in bankruptcy. Secured creditors may enforce their security without going into the court in bankruptcy, subject to the power of stay under section 11, of the Bankruptcy Act. — (347)</p> <p>2. -Construction of the Statute — The word “claim” in sec. 57 of the Bankruptcy Act does not include fixed liens on the real estate of the bankrupt. Nor can the word “dividends,” as used in the same section, apply to payments made out of the proceeds of the property burdened with the lien, in,liquidation of such lien.' — (.349)</p> <p>. 3. Payment — Voluntary—What, Is — Defendant in error had obtained a decree declaring a mechanic’s lien upon certain property of a corporation which was afterwards declared a bankrupt. The trustee in bankruptcy sued out a writ of error, but did not apply for a supersedeas, or in any manner seek to stay proceedings under the decree; or,,in the bankruptcy court, to prevent or postpone payment thereof. The lien creditor filed in the bankruptcy court an exemplification of his decree. Petitions filed by general creditors to postpone payment of the decree, were withdrawn; protests of other creditors were overruled, and payment of a portion of the amount due was ordered by that court. Subsequently the residue of the decree was paid by the trastee, the payments reported to, and approved by, the court in banfamptey. Held, that notwithstanding the provisions of sec. 57 of the Bankruptcy Act, the payment must be regarded as voluntary. — '{3.48.-350)</p> <p>4. Appeals — Effect of Payment of Judgment — The voluntary payment of a judgment abates a pending writ of error to such judgment. — (346)</p>

<p>Appeals Where No Appeal Lies — No appeal lies to the supreme court from a judgment for $50.00 and costs, in a cause having no relation to a franchise or freehold. And where, in such case, the statutory limit upon the writ of error has expired, and the appellee has made no appearance, the case is not to be docketed as a writ of error. The court having no jurisdiction of the appeal, or of the person of the appellee, the appeal will be dismissed.</p>

<p>1. Principal and Surety — Construction of Contract — The rule that the contract of suretyship is strictissimi juris is not a rule of construction, but a rule which governs the application of the contract, after its meaning has been ascertained. In ascertaining its meaning, the contract of a surety is subject to the same tests as is every other contract. It is to receive a construction which will give force to the obligation of each of the parties at the moment the contract takes effect. — (359, 360)</p> <p>Kephart was inducted into the office of state treasurer on the 12th of January. There was then in the Bank of Montrose $15,000 of the moneys of the state, deposited by the previous treasurer. The bank solicited a continuance of the deposit, agreeing to secure the same by a satisfactory bond, and ■ Kephart accepted from] his predecessor the certificates of deposit issued to that officer for the amount, and received new certificates therefor, in his own name as treasurer, under date of January 12th. On the 18th, the bank, with the defendants as sureties, executed a bond to Kephart, which, after reciting the custom of those occupying the office of treasurer to deposit public moneys in the banks of the state, that Kephart, “has determined to and will deposit certain moneys of the state * * * with the Bank of Montrose,” the agreement of the bank to pay interest “quarterly on the daily average of such amount as the bank shall have on deposit” to the credit of Kephart, was conditioned that the bank should, “well and truly keep- all sums of money, so deposited or to be deposited, as aforesaid,” and pay the same over upon demand. There was no recitation anywhere in the 'bond of any previous existing deposit in the bank, and no subsequent deposit was ever made. It appeared that in fact no subsequent deposit was intended then to be made by the treasurer, so that if the surety was not liable for the deposit of January 12th, the .bond would entirely fail of effect, and be, at the time it was executed, a useless ceremony. Held, it must be construed as applying to that deposit, and that the sureties were liable therefor. Held, further, that as the deposit by Kephart, of the certificates received from his predecessor, the issuing, and acceptance in lieu thereof, of new certificates in his own name, and the execution of the bond for his security, were all parts of one transaction, there was, in legal effect, a deposit of money simultaneously with the execution of the bond, as contemplated by its terms.— (356-364)</p> <p>2. -Consideration — Held, further, that inasmuch as there was no provision of the bond as to when .future deposits should be made, and the agreement of the treasurer with the bank was that if any part of the existing' deposit should be withdrawn, the treasurer would restore the amount as soon as the condition of the public funds permitted, and as far as possible keep in the bank the sum of $15,000, and as in fact no part of the $15,000 was ever withdrawn, and no further deposit ever requested, up to the time of the bank’s failure, there was no failure of consideration, even though the promise to make future deposits should be regarded as the sole consideration for" the execution of the bond. — '(361)</p> <p>3. Evidence — Parol to Explain Writing — A bond executed by a bank, with sureties, to the state treasurer, recited' that the treasurer “has determined to and will deposit” certain moneys of the state with the bank; but nothing was said as to the amount or time of such future deposits. Held,- that parol evidence was competent to show what was in fact agreed between the treasurer and the bank, prior to the execution of the bond. —(362, 363) • " ‘</p>

<p>1. Certiorari — Purpose of the Writ — The object of proceedings in certiorari is to correct errors in law apparent upon the record as returned by the inferior court or magistrate in obedience to the writ, and not to settle questions which are in dispute.’- — -(369). ’ • 1</p> <p>Original evidence is not admissible.— (369)</p> <p>- 2. Appeals — Time to Appeal — Statutes limiting the time' of appeal are mandatory and jurisdictional. — (370)</p> <p>3. -Final Judgment, is one which ends the particular action, leaving nothing further for the court to do'in order to determine the rights of the parties involved in that suit. Where, in an appeal to the district court from a judgment by defaqlt entered in the county court, a motion of the plaintiff to dismiss the appeal is denied, and he-elects to abide the judgment, refusing to prosecute further, nothing is left for the court but to dismiss the action. Such judgment is final, not only as to the parties, but as to the county court, and to the sheriff to whom execution upon the judgment has issued.-r-(371)</p> <p>4. County Court — Appeal to , District Court- — Under the statute (Mills’ Stats., secs. 1085, 1086; Rev. Stats., secs. 1536, 1537), no appeal lies from a judgment by default'entered in the county court, to the district court, unless within ten days after its rendition a motion to vacate it is made and denied; and the appeal must, in such - case, be taken within ten days after the denial of the motion unless the time is extended by the county court; and in other cases, within ten days after the judgment is rendered. — (370)</p> <p>The undertaking on the appeal must be filed and approved within the time in which an appeal may be taken, or such further time as may be fixed by the-court. — (371)</p> <p>Where judgment by default is entered in the county cpurt, the defendant desiring an appeal therefrom to the district court, must not only move in apt time to vacate- the judgment,. but if his motion is denied, appeal within ten days thereafter, or within such further time as may be granted him. — (371)</p>

<p>1. Easements — Acquiescence of Land Owner in Construction of Ditch — An irrigating ditch is excavated over private lands, ■with the consent of the land owner. Those excavating the ditch acquire the absolute right to m'alntain' and usé the ditch, as so constructed. The conveyance of the land, over which such ditch is in operation, m no way impairs the easement. — (375)</p> <p>2. -Title to the Servient Estate — The legal title to lands charged with an easement is in the owner of the servient estate. —(375)</p> <p>3. -Extent of Easement — The right of the owner of an irrigating ditch, excavated Over the private lands of another, extends to the bed of the ditch, and sufficient ground on either side to properly operate the same, depending, necessarily, in each case, upon the particular circumstances and conditions; but he is not entitled to enlarge the servitude or subject the lands to a burden exceeding that of the ditch as originally constructed. —(375)</p> <p>4. -Limitation of the Easement by User — An easement may be limited or curtailed by the action and acquiescence of the parties interested. — (375)</p> <p>■ Where lands over which an irrigating ditch had been excavated were subdivided and platted into city lots, the lots sold to many different parties, and improved by these with permanent structures and improvements, located in close proximity to the ditch, the owner of the ditch knowing and permitting such improvements, without question or objection, for more than ten years after such improvements were begun, it was held that all further question by the ditch owner, as to the right of the several lot owners to maintain and enjoy such improvements, was precluded. — (375-377)</p> <p>5. Judgment — Construction—The meaning of a decree is to be ascertained from the words thereof, every part being taken in connection with every part thereof; and with the pleadings upon which it is based.- — -(377, 378)</p> <p>A decree regulating the conduct of an ■ irrigating ditch, and restraining particular invasions of the rights of adjacent land owners, held sufficiently certain.- — (377, 378)</p>

<p>1. Surety — Liability—In an action on an employee’s bond, demanding moneys alleged to have been embezzled by such employee, the plaintiff must show that the embezzlement was within the terms and provisions of the bond. — (385) ■</p> <p>2. Appeals — Questions Not Presented Below — The court of review will accept the pleadings in the sense in which, as clearly appears by the record, they were construed and accepted by the parties in the court below. — (385)</p> <p>3. -What May Be Assigned for Error — The appellant is not to be heard to complain of the ruling,of the court below in which, at the time, he acquiesced. — (388)</p> <p>4. -Defective Abstract — Presumptions to Support Judgment — Where the abstract fails to' set forth the evidence, it is presumed that the findings of the referee, approved by the trial court, were warranted by the evidence.— (386, 387)</p> <p>5. -Harmless Error — The modification of the findings of a referee, by the district court, as to matters not in issue, is harmless, even if erroneous. — ’(389)</p> <p>6. Evidence — Judicial Notice — The court takes judicial notice of the date of the institution of an action, as appears by the records.— (389)</p> <p>7. -Admissions in Pleading — In an action on an employee’s bond, the complaint charged, 'an embezzlement of the moneys and chattels of the plaintiff, within the terms of the bond, and, though a bill of particulars was furnished, no plea denying possession by the employee of the moneys or chattels so mentioned, was interposed. The defendant was held to admit that the moneys and chattels described in the bill of particulars had been in the employee’s possession.— (388, 389)</p> <p>8. -Objections to Evidence — Plaintiff sued’ upon an employee’s bond. By the terms of the bond the surety was liable only for embezzlements of the employee discovered within a certgin time. Held, that a proper objection, or motion, in apt time, would have excluded evidence as to embezzlements not discovered within the time named. — (387, 388)</p> <p>9. Practice — Bill of Particulars — Plea—If the defendant is not chargeable with items set down in the bill of particulars furnished by plaintiff, he may protect himself by plea as to such items.— (389)</p> <p>10. Pleading — 'Complaint'—Conditions Precedent — A complaint on a bond which prescribes conditions to be performed by the obligee in order to fix the liability of the obligor, may effectually adopt the general ■ averment of conditions performed, prescribed by the code (sec. 66). — (388)</p> <p>■ 11. -What Must Be Specially Pleaded — That the action was prematurely instituted is to be presented by a special plea. So of a false statement made by the obligee in an employee’s bond, in order to secure its execution. — -(389)</p> <p>So, it seems, as to items set down in the plaintiff’s bill of particulars, as to Which the defendant would deny liability. — (386, 387)</p>

<p>"\. Damages — Excessive—Remittitur—Under the code provision (sec. 217), where in an action for personal injuries, or in like actions, excessive damages are awarded by the jury, as the result of passion or prejudice, the wrong is not to be cured by a remittitur, but the defendant is entitled to' a new trial as of right.— (392)</p> <p>Where the judge presiding at the trial declared the verdict excessive, and required a remittitur of nearly three-fourths of it, it was held that this must be regarded as in legal effect a finding of passion or prejudice, even though the judge refused to' so declare. In determining whether a verdict was dictated by such improper motives, the court will take into consideration the evidence as to the character and extent of the injury, the amount of the verdict, the amount which the trial judge required should be remitted, the fact that the plaintiff yielded to such requirement, and the amount of a verdict given in the same cause, upon a former trial thereof. — (396)</p> <p>The evidence examined and held to disclose either passion or prejudice, or a total misconception by the jury of its duties and obligations under the law. — <399-402)</p> <p>Held, in either event the entire verdict was vitiated. — (402) 2. Evidence — Variance—Contention as to a variance alleged between the allegations of negligence in the complaint, and the proofs, examined, and an amendment suggested. — <402, 403)</p>

<p>1. Appeals — What May Be Assigned for Error — Where there is no hill of exceptions, only the pleadings will he considered. If these .are sufficient to support the judgment, it will he affirmed. —(406)</p> <p>2. Pleadings — Complaint—Complaint in an action for an assault, held sufficient. — (406)</p> <p>3. -Answer — In an action for an assault the defendant having interposed a general denial, and pleaded son assault demesne, further defenses setting up at great length that defendant was wrongfully in the occupancy of certain premises, the property of defendant’s wife, the history of the title in detail, and the history of a litigation involving such title, were held properly stricken out. — (406)</p>

<p>Error to Denver District Coiort — Hon. Gbeeley ~W. Whiteobd, Judge.</p>

Chables Cavendeb, Judge. Upon payment of her seven promissory notes aggregating $2,265.00, with interest at 2¿ per cent, per month payable monthly, and all future advances made by him to her in the business, appellee T. D. Loomer, March 21,1889, contracted in writing to sell to Belinda H. Brown his second-hand store in Lead-ville.

<p>1. Jury — Challenge for Cause Denied — A party who has exhausted his peremptory challenges may assign error upon the denial of a proper challenge for cause.— (419, 420)</p> <p>2. -Prior Service — Under the act of April 10, 1905 (Laws 1905, c. 116; Rev. Stats., sec. 3690), it is ground of challenge to one called as a jjiror that he has served in that capacity at any prior term of the same court, within one year next preceding, no matter for how short a time he so served, and even though the period of his service was not within one year. The challenge is given by statute, and where, it appears that by the denial thereof the challenging party was put to a peremptory challenge of the-juror, and exhausted all his peremptory challenges before the jury was impaneled, the denial of this challenge is fatal error. — (421, 422)</p> <p>3. Statutes — Construction—In construing a statute, full effect is to be given to every word and phrase thereof, provided a proper, logical and reasonable conclusion is thus deduced. — (420)</p> <p>Where a right given by the statute is denied, this court is not to go further and incorporate into the statute, by construction, what is hot contained therein, in order to excuse the error, or defeat the legislative intent. — (422, 423)</p> <p>Judicial legislation is to be carefully avoided. — -(423)</p>

<p>1. Insurance — Fraudulent Concealment by Insured — Where no inquiry is made by the insurer, the intention of the insured in failing to fully disclose the condition of the property, or of the particulars of his title, is material, and tO' avoid the policy it must appear, not only that the matter not communicated was material, but that it was concealed intentionally, and with a fraudulent pui-pose. — (430, 431)</p> <p>2. -For the Jury — It is not for the court to say that facts alleged to have been concealed were, material, and that the insured fraudulently and intentionally withheld them, unless the evidence is such that all reasonable men must draw this conclusion. — ’(431-433)</p> <p>The evidence examined and held, that the question of the intent of the insured was properly left to the jury. — <434, 435)</p> <p>3. -Title of Insured — A vendee in possession of real estate, under an existing and valid contract of sale and purchase, is the “unconditional and sole owner, in fee simple,” within the meaning of a policy of insurance which declares that unless otherwise provided, by agreement endorsed thereon, or added thereto, the policy shall be void if the interest of the insured be other than unconditional and sole ownership, or if the subject of the insurance be a building on ground not owned by the insured in fee simple; and this is so, even though it should be deemed that the vendor had a lien for part of the purchase price. — (437-439)</p> <p>4. ••-Tax Sale Certificate — A tax sale certificate, outstanding in the hands of a stranger, no more impairs the title than would an unpaid tax. It is no violation of a condition requiring unconditional and sole ownership.— (437)</p> <p>5. -Construction of Policy — Clauses of doubtful meaning are construed in favor of the insured. The policy named sixteen contingencies in which it should be void, and thirteen others in which the insurer should not be liable. There was a condition that in case of loss a certain statement should be rendered within sixty days thereafter. By another clause it was .provided that no action should be sustainable, until full compliance with all requirements of the policy. The failure to furnish the statement within the stipulated period was not within any of these condemnatory clauses, and was nowhere declared to avoid the policy, or absolve the insurer. Held, that delay in furnishing the statement had the effect merely to postpone the day of payment, but not. to bar an action on the policy. — (441, 442)</p> <p>6. Evidence — Competency—Admissibility—In an action upon a policy of insurance, an application made by the insured to' another company, for insurance on the same property, is not admissible upon the question of the intent of the assured, in obtaining the policy sued upon, and an alleged concealment of facts material to the risk.— (440)</p>

<p>1. Fraud — False Representations — A false representation as to material facts, known by the party making it to be false, and made for the purpose of inducing one to whom it is made to enter into a proposed exchange of lands, which such party relies upon, and by which he is induced to make the exchange, contains all the essential elements of a fraud.: — (446-449)</p> <p>2. --Opinions — One offering lands in exchange for others represents that he is the absolute owner thereof, in possession, and entitled to convey. These are statements of fact, and not merely expressions of opinion. — (447)</p> <p>3. -Conduct as a Representation — The conduct and bearing, in negotiation and correspondence, of one offering lands for exchange,, is to be regarded as an affirmative representation. —(447)■</p> <p>4. -Right to Rely on Representations — One offering to convey lands situate in another state represents that he has an absolute title, and is in possession by a tenant. In fact the party in possession holds a contract of purchase, not of record, and which therefore would not appear upon any abstract of the record title. Held, the party to whom the representations were made at the initiation of the transaction, and in connection with an offer not accepted, the representation never having been retracted or modified, during the subsequent, continuous negotiation, is entitled to rely thereon. — (447, 448)</p> <p>5. -Presumptions — Misrepresentations as to the subject-matter of a proposed transaction in land, of such character as to naturally impose upon the other party, and induce the proposed exchange, and which are followed by such ’ exchange, are presumed to have been made with the intent that they should be relied upon.— (448)</p> <p>6. Vendor and Purchaser — Vendor’s Title — One who has entered into a contract to' sell lands to a tenant who is in possession thereof, under him, is no longer the absolute owner and in possession. And it seems that although, having afterwards assumed to convey such land to a third person, in exchange, he secures a release of his right from the tenant, such release, not communicated to the other party to the exchange, is no bar to a bill subsequently brought by the latter, to annul such exchange. — (446)</p> <p>7. —■—Right to Rescind — One who, by false representation upon which he relied, and had the right to rely, has been induced to exchange his land for other lands, may, on discovery of the deceit, rescind. — (446-450)</p> <p>8. Pleading — Complaint—Construction—One seeking the rescission of an exchange of lands avers that defendant represented that he was the owner in fee of the land offered in exchange, and in possession thereof, and that relying upon these representations, and induced thereby, plaintiff made the exchange. The representations were not alleged to have been false, nor described by any word of similar import; but it was averred that defendant, previous to the representation, had entered into a contract to sell the lands to another, who was in possession as purchaser, under this contract, and had been so in possession for more than a year before the exchange. Held, sufficient on demurrer. — (449, 450)</p> <p>9. -Demurrer — Allegations of fact are taken as true on demurrer'to the pleading.— (450)</p> <p>"10. Fraud — Scope of the Inquiry — In an action to be relieved of a fraud, the evidence is allowed a wide range. — (450)</p>

<p>Error to Denver District Court — Hon. Greeley W. Whiteord, Judge.</p>

<p>1. Appeal — Questions Not Considered Below — A question of fact not submitted to tbe jury in tbe court below, will not be considered on appeal. — (460)</p> <p>2. -Harmless Error — Where every question of fact upon which the defendant is entitled to be heard is submitted to the jury, error in requiring him to elect between several defenses, is harmless. — (461)</p> <p>3. Contract by Correspondence — Construction—Plaintiff offered the defendant a earload of eggs at 19%c per doz. Defendant wired plaintiff, “Ship car May eggs Union Pacific, 19%.” Plaintiff on the same day replied by wire as follows, “Offer accepted, price 19, track Abilene.” Plaintiff having shipped the eggs and drawn for the price at 19 %c per doz., and written defendant, insisting upon this as the agreed price, defendant telegraphed plaintiff to direct the railroad company to allow an inspection of the eggs. This being granted, and the inspection had, defendant rejected the eggs, solely upon the ground that they were not merchantable. Held, entirely clear upon this correspondence that defendant intended plaintiff to understand, and plaintiff did understand, that the eggs would be paid for at 19%c, if they were in fact May eggs. — (461)</p> <p>4. Sale — Implied Warranty of Quality — There is no implied warrant of quality in the sale of perishable merchandise. — (462)</p> <p>5. --Purchaser’s Refusal to Accept — Seller’s Rights — , Where the purchaser wrongfully refuses to accept the goods, and 'the title has not entirely passed, or where the buyer consents, the seller may take possession, and after notice of the buyer, sell them for the best price obtainable. In such case he recovers the difference between what he so receives and the agreed price, with interest. — (462, 463)</p> <p>The seller’s expenses in journeying from his home to the place of -businéss of the purchaser, in order to dispose of the goods may, under some circumstances, be allowed. — (463)</p>

<p>Error to Montezuma District Court• — :ITon. Charles A. Pike, Judge.</p>

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

<p>1. Contracts — Construction—Damages—Penalty—Upon the question whether a penalty or liquidated damages is intended, the words of the contract are not always controlling. A sum designed as liquidated damages may be declared a penalty, and a sum set down as a penalty may be held liquidated damages. —(486)</p> <p>Where it is doubtful ■ upon the words of the instrument, which was intended, or where a greater sum is to be paid upon default made in a less sum, or where the agreement imposes several distinct duties or obligations of different degrees of importance, and the damages resulting from the breach of some of the provisions of the undertaking, though not of all, are readily ascertainable, the sum to be paid by the party in default is generally held a penalty. But where the covenant is for the performance of a single act, or several 'acts, or several acts which are but minor parts of a single complex act, and the damage resulting from the violation of each, is wholly uncertain, or incapable of being readily ascertained, especially where it is expressly provided that the sum named shall be paid as liquidated damages, or where the agreement is in the alternative, the obligor having his election to do either of two acts, but to -pay a sum of money in the event that he does one of them and not the other, the sum specified is liquidated damages. Powell and Bilz entered into an agreement in writing, whereby the former was to enter the employment of the latter in the sale of auto cars for the term of one year, to give his whole time and energy to the business, to conduct himself in a sober and gentlemanly manner, and use his best efforts to effect sales'. In addition to a weekly stipend he was to receive a commission on the selling price of all sales, where he introduced the purchaser, or where the purchaser, having been turned over to him, he concluded the sale. It was further provided that out of the commission so to be paid to Powell, Bilz should retain 40 per cent, until the amount should .aggregate four hundred dollars, as a fund to secure performance, by Powell, of his agreement, and that in case of his default, the fund and interest thereon should be retained by Bilz as “agreed and liquidated damages”; otherwise it should be turned over to Powell.</p> <p>Held, that inasmuch as the damages resulting from the breach of Powell’s agreements were incapable of ready ascertainment, the sum not disproportionate to the injury that might result from misconduct on his part, there was no multiplicity of covenants of varied kind and importance, but on the contrary no covenant on the part of Bilz not necessarily included in the general covenant to serve faithfully, and the parties had expressly stipulated that the deposit should be liquidated damages, the contract must be accepted in this sense.— (487-491)</p> <p>Held, further, that the default on the part of Powell, contemplated by the contract, was such as would warrant his discharge, and not some insignificant omission, within the letter but not within the spirit of the covenant. — 1491)</p> <p>Held, further, that the progressive increase in the deposit, arising from the commissions earned by Powell was no ground to ascribe a different effect to the contract.— (491, 492)</p> <p>Held, that a sale conducted by Bilz, and in closing which Powell participated, as a favor merely, agreeing that it should not be considered as his sale, was not within the contract.— (497)</p> <p>2. Master and Servant — Discharge of Servant — The law does not permit the servant to place himself in a situation in which his individual interest is opposed to that of the master. — (494)</p> <p>A servant employed for a certain time to assist in the sale of auto cars, giving his whole time and energy to the business and using his best efforts to make sales, etc., entered into an arrangement, before the lapse of the term of his employment, to go into the same business for himself, and instituted a correspondence with manufacturers whose cars the employer was selling, seeking to secure for himself an agency for the sale of these cars. Held, a violation of his duty towards his employers, warranting his discharge.— (493-495)</p> <p>By what means the misconduct of the servant is discovered is immaterial.— (495)</p> <p>3. -Effect of Discharge — The discharge of the servant, for good cause, terminates his right to compensation and commissions not already earned and accrued. — (496)</p> <p>4. Evidence — Admissions by Conduct — One employed to sell goods on commission will not be allowed a commission upon a particular sale, where, by his conduct for several months succeeding the sale, he has admitted that he was not entitled to it. —(497)</p>

<p>1. Constitutional Law — Amendment of the Constitution— Power of the People — The people of the state have plenary power to provide, hy constitutional amendment, such methods of government for the state, or any portion of the state, as may please them, so long as there is no violation of the federal compact. To c'onfer upon the people of a particular community authority to designate the agencies hy which governmental duties therein shall be discharged is not obnoxious to any provision of the enabling act or of the federal constitution. — (513, 514)</p> <p>2. -Construction of the Constitution — Power of the Courts — Where any provision of the constitution is framed in doubtful or uncertain language, it is the province of the courts to construe it;- hut it is not within the province of the court to substitute other words for those used in the constitution, or place any forced construction thereon, or eliminate words found therein. — (522)</p> <p>,3. -Construction of Amendments — An amendment of the constitution is to be considered, treated and construed, as if it had been written therein in the first instance. — (507)</p> <p>4. -Article XX is, in all its provisions and for all purposes, a part of the constitution, according to its clear import. Neither sec. 2, nor any other provision of that article, has the effect, or assumes to, set aside governmental duties and functions as to state and county affairs, within the territory named. Its whole effect is, to provide that the people of the city and county of Denver, shall, through their charter, designate the agencies which are to discharge those duties and functions which, elsewhere in the state, pertain to county officers, all which functions and duties are preserved intact.— (510, 511)</p> <p>This does not create a government unrepublican in form or involve any inhibition of the federal constitution, and was clearly, within the powers reserved to the people of the. state, upon entering into federal compact. The doctrine of the majority opinion in The People ex rel. v. Johnson, 34 Colo. 143, rejected, and that case overruled. — '(511-513, 535)</p> <p>5. -County Officers in Denver — Since the adoption of this article, and the formation of the municipal corporation of the city and county of Denver, there has never been within the limits thereof a county office, or county officer, as such, except as this proposition may have been affected by the decision of this court in Johnson’s case, supra.— (507, 508)</p> <p>6. Judgments — Upon Whom Conclusive — There is no privity of title between one occupying an elective office, and a former incumbent, chosen at a different election, at a different time and for a different term. A judgment in quo warranto favorable to certain persons claiming to have been elected county commissioners of the city and county of Denver was held not conclusive as to the title of other individuals, claiming the same office, under a subsequent election, which was held under the same supposed authority as that by which the former hoard claimed to have been chosen. The election in each case being determined to have been without authority of law, and the first judgment erroneous, the later incumbents were expelled on quo warranto brought.— (523, 524)</p> <p>"7. ——Effect—Res Judicata — The determination of an abstract question of law does not bind other parties, in a subsequent litigation involving the same question. The thing determined in the particular litigation becomes res judicata, and may not be challenged between the parties, even though the question of law by which the litigation was controlled is afterwards determined to have been incorrectly decided and applied; but the decision and application is not necessarily binding upon the court in another litigation. A judgment against a public officer as such, relating to a public right, duty, power, liability, or obligation, attaching to the office, binds his successor, who so far as he is affected by such determination is properly regarded as in privity with his predecessor. So far as such prior determination affects the title of the prior incumbent to the office, it has no effect upon the successor. — (524-527)</p> <p>8. -Stare Decisis — The maxim stare decisis rests upon grounds of public policy. The courts will generally adhere to a former decision, though found to be erroneous, where it has long been acquiesced in, and especially if it has become a rule of property. But where public rights are involved, and a decision regarding them is to have a direct and permanent influence, it is the duty of the court to carefully reconsider the question, and permit no previous error which can be corrected, to be perpetuated. — (527, 528, 531-533)</p> <p>Accordingly a previous decision of the court involving the construction of a provision of the constitution which provides in plain and express terms a form of government for a particular community, permanent in effect until changed by the people and by which decision, based upon assumptions and supported by reasoning, which the court upon further examination declared to be false and unsound, the provision in question was in effect nullified, was rejected and overruled. — (535)</p>

<p>1. Receiver — Power of the Court Over — A receiver is an. officer of the court by which he is appointed, and the court may, by suitable orders, arrange and provide for the employees and counsel to be retained by him, and for their compensation. — (600)</p> <p>2. Judge — Immunity from Private Action — A judge is not liable in damages to private parties for an order made by him officially, in a matter of which the court in which he presides had jurisdiction to promulgate such order, and had jurisdiction of the person commanded to act. Malice and corruption on the part of the judge affects no change in the rule. Whether, in making the order, the judge acted correctly or not, is not to be determined in an action against him for malice and corruption, in the making thereof. — (601)</p>

<p>1. Water Commissioner — Compensation—Liability of County — A county in which are lands included within a water district, is, under the statute (Mills’ Stats., sec. 2387; Rev. Stats., sec. 3434), liable to the water commissioner for its pro rata share of his statutory compensation, even though he has performed no service 'within such county, no request was ever made upon -him by the county, or any person, to render any service in such county, and no decree has ever been had adjudicating priority to the use of water in such county; and though the area of lands irrigated in such county is trifling, as compared with that in the other counties included within the district.' — (604, 605)</p> <p>2. Words and Phrases — Pro Rata — A statute regulating the compensation of the water commissioner provided that he should render an account of his services “to the Board of County Commissioners into which his district extends, and each Board of County Commissioners shall pay its pro rata share thereof.” Held, that where the district extended into three counties, each county was liable for one-third of the commissioner’s' compensation, without any reference to the area of lands irrigated in the counties respectively. — (605) 3. Public Office — Title, How Contested — The title to a public office can be tried only by the procedure prescribed by the code (c. 27). — (605)</p> <p>One who has been appointed water commissioner of an irrigation district, qualified in his office, and performed the- duties thereof, is entitled to recover the statutory compensation.</p> <p>The regularity of his appointment is • not to be collaterally brought in question in his action against the county to recover such compensation.— (605)</p> <p>4. Payment — Illegal by County — Recovery — Public moneys illegally expended by the board of commissioners of a county may be recovered from the recipient. The defense of voluntary payment cannot be entertained in an action brought to recover such moneys. — (606)</p> <p>Moneys paid by two of the counties of a water district, to the water commissioner, in excess of the sums which he was entitled to receive from such counties, are not to be set off against him, in his action for compensation against another county of the district. — (606)</p>

<p>1. Water Rights' — Waste Water — Appropriation of — Effect— One who has appropriated -the waste waters of the ditch of another is not thereby vested with control of such .ditch, or the laterals thereof; nor is the,owner of such ditch obligated, to maintain existing conditions, so as to supply the appropriation of waste water at any time, or in any volume. — (609, 610)</p> <p>But the owner of the ditch may not willfully and maliciously discharge water upon other lands, so as to prevent the flow of what exceeds his requirements, to the appropriator of the waste. — (610)</p> <p>2. Appeals — Partial Error — Modification—Where the record exhibited error in part, the court below was directed to modify its decree, in this respect, and it was ordered that, as thus modified, it should stand affirmed. — (610)</p>

<p>1. Wills — Construction—-Where a .-will makes a bequest upon a condition, the question -whether such condition is precedent or subsequent is to be ascertained from the testator’s language upon the subject, construed in the light of his purpose as .disclosed in the will. — (614)</p> <p>2. -Impossible Condition — The testator, by his will, bequeathed a sum specified “for a hospital and home to be built in Boulder, county of Boulder, for the comfort of poor widows while sick and unable to care for themselves, providing the city of Boulder, by its officers or the county commissioners and their successors in office, will support and maintain the same”; otherwise the legacy was directed to be divided among persons named. Held, that the words of the will manifest that the intention of the testator was that the condition prescribed was to be first performed before the gift should vest; that the condition was therefore a condition precedent. — (614, 615)</p> <p>That the testator did not intend that his bequest should take' effect upon an agreement for the maintenance of the hospital binding only the board, as it existed at the time of his death; but that, not only that board, but their successors to all time, should maintain the hospital; and that inasmuch as no board of commissioners was competent so to bind its successors, the bequest was void, because depending upon an impossible condition.— (615, 616)</p> <p>3. Public Charities — Held, further, in the same case, that the bequest could not be supported as a public charity, because the institution prescribed was not to be devoted to- the public at large, but to a favored class. — (616, 617)</p> <p>Campbell, C. J., was of the opinion that the bequest must fail for the further reason, that,, while the beneficiaries, as a class, were sufficiently designated, no plan was prescribed by the will for the execution of the trust, no trustee. appointed, and no provision made by which any trustee or trustees appointed to execute the trust could be vested with power to select and designate the individual beneficiaries; that the will being silent, it was not within the jurisdiction of equity to appoint a trustee and invest him with power to select from the class designated the particular beneficiaries, distinguishing Clayton v. Hallett, 30 Colo. 231. — (617-621)</p> <p>4. County Commissioners — Powers—The board of county commissioners possesses only such powers as are conferred upon them by the constitution and statutes, and such implied powers as are reasonably necessary to the proper execution of powers which are expressly granted. — (615)</p> <p>Nothing in the statute (Mills’ Stats., sec. 791; Rev. Stats., sec. 1204) authorizes the board to enter into an engagement binding the county to forever maintain a hospital, for the benefit of a particular class. Bach board must in each year determine for itself what appropriation shall be made for public purposes, and levy the taxes necessary to meet them; and no board is competent to determine these matters for its successors, or limit their action in the exercise of governmental functions. — (616, 617)</p> <p>And the county commissioners may not appropriate public moneys, raised by general taxation, to the maintenance of a hospital over which the county has not complete control, or from which particular classes of the public are to be excluded. —(616, 617)</p> <p>5. -Act Only Collectively — County commissioners, in order to bind the county, or render their acts effectual, must act collectively, as a hoard. — (615)</p> <p>6. Courts — Authority—A county court has no power to require the guardian ad litem of a minor to agree, in the receipt for a legacy, that the minor shall not contest the will. Such agreement does not estop the minor from insisting upon the true construction of the will, where he is summoned into court hy others demanding a different construction.— (621, 622)</p> <p>7. Contest of Will — Statute of Limitations — Receipt of Legacy — The board of county commissioners of the county brought an action, praying to be appointed trustees of a fund bequeathed hy a testator for the purpose of establishing a hospital, upon certain conditions. Infant beneficiaries among those to whom the fund was directed to go, in case of non-performance of the condition, were the defendants. They appeared, and contested the validity of the bequest relied upon by the plaintiff. Held, that though more than one year had elapsed since the admission of the will to probate, these defendants were not’ precluded from demanding a construction of the -clause of the will upon which plaintiffs relied; that such construction was made necessary hy the plaintiffs’ own action, and that the defendants were not barred by the limitation contained in the statute of wills (Laws 1903, c. 181, sec. 38; Rev. Stats., sec. 7096). — (622)</p> <p>Nor by the receipt of a legacy under another clause of the will. — (621, 622)</p>

<p>Error to Arapahoe District Court — Hon. Floe Ashbatjgh, Judge.</p>