Volume 54 — Colorado Reports

<p>1. Joint Tort — Charged Against Several — Recovery Against One —On complaint charging a joint tort against several, and evidence convicting one or part of the defendants, plaintiff may have judgment against those shown to be guilty, the others being acquitted. Plaintiff is not required to elect and discontinue as to those against whom no case is made.</p> <p>2. Pleading — Answer—General Denial — The general denial casts upon the plaintiff the burden of establishing all the material allegations of the complaint, regardless of the other defenses in the answer.</p> <p>3. -Inconsistent Defenses, may be presented in the same answer.</p> <p>4. -Construction — The reply may be referred to to determine plaintiff’s then understanding of the averments of the answer.</p> <p>5. --Plaintiff sought to charge a carrier with the loss of a trunk. The answer admitted that at the day and place mentioned in the complaint some person unknown to defendant delivered to it a trunk, but “whether plaintiff. was the owner of the trunk * * * defendant has not and cannot obtain sufficient information, etc.” Held, the burden was upon the plaintiff to- show that he was the owner of the trunk, and that an instruction to the effect that 'defendant admitted by its answer that he had received plaintiff’s trunk, was error.</p> <p>6. Evidence — Competency—In the same case the evidence tended to show the delivery of the trunk by plaintiff to the porter of a certain hotel. Held, that defendant was at liberty to show that, this porter had no authority to accept baggage for it. , ¡</p> <p>Plaintiff by his deposition testified that the driver of defendant gave him its check, of a certain number, for his trunk. The check was not attached to the deposition. A letter of the defendant which was read in evidence stated that he received a hotel check from the porter of a certain hotel.</p> <p>At the trial plaintiff’s attorney offered what purported to be a check of defendant of the same number as that mentioned in plaintiff’s deposition; but it was not identified, or its authenticity in any manner shown. Held, that an objection to its admission should have been sustained.</p>

<p>Weit of Eeeoe — Where the Writ Lies — Final Judgment — An order removing executors, acting as testamentary trustees, and appointing a receiver for the estate is a final judgment, and the executors may have a writ of error to review such' order.</p>

<p>1. Wills — Construction—The intention of the testator is to be derived .primarily from the language of the will itself; and it is to receive effect as written, if not opposed to some positive rule of law, or against public policy.</p> <p>And it is to be presumed that the testator knew the law governing the subject matter of his directions.</p> <p>2. -Power of Testator to Appoint Successors to Executor — It seems that where the will directs that if the executor named dies, another shall be his successor, the one so designated is executor by substitution, and not a mere administrator de bonis non. Nó rule of law prevents a testator from providing a system for the selection of a successor to the executor named in his will. He may provide conditional, limited, or substituted executors, in case of vacancy, conferring upon them the same powers as conferred upon those first designated.</p> <p>And the county court, upon a provision in the will to that effect, may appoint a successor to the executor, with all the powers which the will confers upon the original executor.</p> <p>3, -Construed — The testator, a man learnéd in the law, after certain specific bequests, devised all the rest of his estate “to my said executors * * * and to the survivor of them,' and their successors, to hold, manage ,and dispose of, in trust for the uses and purposes following:” And after providing for the payment of an annuity to his widow, directed that the residue of the net income of his estate should by “said executors,” be annually paid over in equal parts, to his- two sons; directed that “said executors” should carefully collect and take care of said estate; authorized sales by them of any part of the estate; the re-investment by them of the proceeds of-sales; directed that upon the death of both of his sons, “said executors, and the' survivor of them, and their successors” should convey all the-estate remaining, to the heirs at law of said sons; and finally declared, his desire, that “said board of executors shall be continued until the purposes of this will are fully accomplished, and the trusts herein created are fully executed; and that a-ny vacancy in said board shall, on application of any beneficiary herein named, be filled by the appointment of the county court” of the county of his residence. Held? that the manifest purpose of the testator was to confer the estate devised, and the trusts and powers prescribed in the will, not upon, any person as a personal trust, but upon the person holding the office of executor, and their successors, in perpetual succession, and to annex such estate and powers to the office of executors. That upon the acceptance of the resignation of the executors named in the will, and a valid appointment of successors, not only the powers, but the trust estate before that vested in the original executors, devolved by operation of law, upon the successors, without the formality of a conveyance. ■ - '</p> <p>The will enjoined upon the executors to “distribute fully the total net annual income and increment of my estate to the persons and in the time and manner herein provided, and so as to avoid the accumulation in their hands of property in excess of the total value of the assets that shall originally come to them under this will.”</p> <p>Held, that under this provision- the estate must be dealt' with in solido; that the increase in the value of one piece of property was: not to be segregated, as income; that each parcel of property pertaining to the' estate retains its character as part of the body of the •estate, until every part of the estate has been subjected to examination and appraisement, and the whole aggregated.</p> <p>4. EIxecutor — Removal—Effect Upon His Character as Testamentary Trustee — 'Where one is named as executor, and by the same will as trustee, the revocation of his appointment as executor will not necessarily revoke his appointment as trustee; but where powers and ■duties not pertaining to the office of executor are conferred by the will upon the executor, he becomes, by virtue of his appointment, a trustee by operation of law; and if he resigns or is removed as executor, the duties and: powers conferred upon him, in that character, terminate.</p> <p>5. -Allowances — Executors lawfully appointed and whose title, authority, and official conduct, is assailed by the beneficiaries-under the will are justified- in incurring any necessary legitimate expense in sustaining the validity of the will, and their appointments, and in defending, in good faith, their conduct while in office; and they are entitled to an allowance out of the estate for the amounts so necessarily and reasonably expended.</p> <p>6. Statutes — Construed—A statute (Mills Stat. § 4720) provided that when the letters of one of several administrators are revoked, ■etc., the county court may in its discretion “join others in their stead and place * * * and in case the letters of all of them shall be revoked, or all * * * shall depart this life before final settlement, etc., administration with the will annexed, or as the case may require, shall be granted to the person next entitled thereto.” Held, that where the will so provided, executors might be appointed by the county court, as successors to those named in the will, and with all the •estate and- powers granted to, or conferred by the will upon, the original executors.</p> <p>7. Pleadings — Relief, is to be confined to what, upon the facts stated, the party is entitled to.</p>

<p>1. Statute of Frauds — Sale of goods — An agreement by one person to construct' an article' for, and according to the’ plans of another/ at an agreed- price, is a contract for work and- labor and not within the statute, of frauds. Ellis v. D. L. &. R. R. Co., 1 Colo. App. 352, distinguished.</p> <p>2. Measube of Damages — Purchaser Refusing to Accept' an Article Manufactured for Him According to His Plans — The rule is practically universal in this .country that-where a purchaser refuses,, without legal justification, to accept an article manufactured to his order, after special design, the vendor may, at his election, hold the article for the • purchaser and recover the contract price with interest.</p> <p>And the' purchaser is not allowed advantage of the non-performance by the-vendor of conditions, the performance of which, he- himself has prevented, e. g., where, the article being a soda fountain, the defendant has refused to permit the plaintiff to install it, as the contract required.</p> <p>Nor will the purchaser be allowed the benefit of a' stipulation that some, part of the price shall be paid in installments, at futtire ■ times specified.</p> <p>The tender of the article, and plaintiff’s election to sue- for the contract price, vests title in defendant for the purposes of the action.</p>

<p>Alimony — Amount—Discretion of the Court — Wjhere a divorce is granted to the wife the amount of alimony to be awarded is in the sound discretion of the trial court. Its award will not be disturbed unless a clear abuse of the discretion is shown. An allowance to the wife, no longer able to perform hard labor, of a sum not exceeding one-half the net value of the husband’s estate, acquired by their joint labors and economy, was held not only a proper, but a wise exercise •of the discretion. .</p>

<p>1. Constitutional Law — Particular Statutes — The act for the appointment of a railroad commission (Laws 1907, 531, Rev. Stat. c. 121 art. vii.) is -a constitutional enactment. Consumers League v. Colorado &o. Co., 53 Colo. 54 followed.</p> <p>2. ■ — -—Delegation of Legislative Power — The constitution prohibits the delegation of the powers of the legislature. A statute (Laws 1910 c. 5) required every railway company to furnish cars to shippers; to prescribe reasonable time schedules for the operation of trains; prohibited undue advantages to particular localities; and required the utmost diligence in the carriage of goods committed to them for transportation. Neither the number of trains to be operated, the time within which any train should run, or the equipment of the trains was specified. Other provisions of the act provided for the appointment of a commission charged with the administration of the statute, and authorized to direct what equipment should be supplied, what trains should be operated, and what other duties expressly or impliedly imposed upon common carriers should be exacted of them. Held, not a delegation of legislative power.</p> <p>3. Statutes — Construction—A statute which is essentially remedial, e. g., the act creating the railroad commission (Laws 1910 c. 5) is to be liberally construed to accomplish its object.</p> <p>The title of an act may be resorted to to aid in ascertaining the legislative intent.</p> <p>4. —Construed—The defendant railway company had abandoned the operation of that part of its railway between Breckenridge and Como, twenty-one miles in length, and operated only a combination train between Denver and Como. The effect was that all the freight between Denver, the commercial and political center of the state, and Breckenridge, a mining village of 800 souls, was required to pass by another railroad, a distance of 317 miles, breaking bulk on two occasions, and consuming several days; whereas if trains were regularly operated upon defendant’s railway, the distance was only 110 miles, and the freight was received upon the day of its shipment. Passengers, too, were required to go by the same circuitous route, and one desiring to travel from Breckenridge to Como, only 21 miles by defendant’s railroad, was required to travel nearly 400 miles. Moreover the freight charge, and the passenger rate, were greatly increased. Held, that under the act creating the railroad commission (Laws 1910 c. 5) the commission was authorized to require the defendant to resume the operation of its line between Como and Breckenridge, and to operate a passenger train, daily except Sundays, between Denver and Leadville by the way of Como and Breckenridge, and a through freight train at least three days in each week.</p> <p>Section 11 of the amendatory act organizing the railroad commis- . •sion (Laws 1910 e. 5), provided that three commissioners should be appointed by the governor, but with the proviso that those elected "under the original act should continue in office for certain terms specified. Held, that the effect of the statute was not to create an office, and at the same time designate the persons who should fill it, but to retain the commissioners then in office by election of the people, excepting them from the operation of the power of appointment conferred upon the executive.</p> <p>The constitution (art. XV, sec. 3) provides that the general assembly may alter the charter of any corporation theretofore granted, when in their opinion injurious to the citizens of the state, “but only in such manner that no injustice shall be done to the incorporators.”</p> <p>A statute (clause 6 sec. 602 Mills Stat.) provides that railroad companies organized under the act shall have power “to regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor.” Held, that the rights thus granted were not unlimited, and to be exercised without regard to the interest of the public; that the anticipated benefit to the public was the consideration of the franchise granted; that the acceptance of the grant by the corporation imposes.upon it the obligation to operate its railroad, when constructed, in the manner and for the purposes contemplated by the statute; that the grant must be read in connection with the other provisions of the statute, and with the obligations which the law, independent of any statute, impliedly imposes, to furnish such service as may reasonably accommodate the public; that the surrender, either by constitutional or statutory provision, of the power of the state to reasonably control railroad companies is not to be inferred in' the absence of positive words to that effect, and no such words are found either in the constitution or statute.</p> <p>Held, further,, that to require,a railway company to resume the operation of a portion of this railway which it had abandoned, even 'though such operation might be unprofitable, was not an injustice to the corporation, nor, the taking of its. private property without due process of law, where it appeared that the suspension of operation had occasioned and would occasion great inconvenience and .additional burdens to the public. ,</p> <p>5. Railroad Companies — Duty to , Operate Constructed Lines— Whether a railway company, can be compelled. to construct the ■ line which.it has adopted in its charter, quaere.</p> <p>But a railway company may, where the public interest requires, be compelled to resume the, operation of a part of its constructed lime which it has abandoned, even though in fact such operation may be at a loss.</p> <p>The railway company claiming that the operation of a particular branch or part of 'its railway will be unprofitable has the burden of proof.</p> <p>The evidence examined, and held that the railway company had not sustained this burden.</p> <p>The question of loss must be considered in connection with the .duties of the railway company to the public, and the result of its corporate business, as a whole; it is not to be excused from performing its whole duty, merely because by ceasing to operate a part of its system the net returns will be increased.</p> <p>6. Railroad Commission — Powers—An order of the railroad commission requiring a railroad company to resume the operation of a branch of' its railroad which it had abandoned, to operate passenger trains daily except Sundays, and three freight trains weekly,' approved, and the decree of the district court enforcing the order affirmed. - '</p>

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

<p>Libel — Charge of Bribery — To falsely publish, of another anything tending to bring him into odium is libelous yeé se, e. g., that the person mentioned had been guilty of corrupting a jury, in a cause pending in another state, and this, whether the act was or was not a criminal offense, by the law of such other state.</p>

<p>Error to Denver District Court. — Hon. Hubert L. Shattuck, Judge.</p>

— Hon. James E. Garrigues; Judge. The town of Lyons and the city of Longmont are located on the St. Vrain, the former near the point where the stream emerges from the foot-hills, and the latter about nine miles below.

<p>1. Pleadings — Amendment—An amended complaint is not to be filed without leave of the court.</p> <p>A judgment rendered after a trial had without notice to the defendant, upon an amended complaint filed without leave, and increasing the plaintiff’s damages, should he vacated on motion.</p> <p>2. New Tktal — Verdict Not Conforming to the Evidence — A verdict must be supported by the evidence, and consistent with some legitimate theory of what the testimony tends to establish. If wholly at variance with the testimony and the theory upon which the cause was tried, it should be vacated.</p>

<p>1. Criminal Law — Instructions—Construed—Indictment for, Murder — An instruction declared that “deliberately” does not mean brooded over, or reflected upon, for a week, day or hour, “but an intent to-kill executed by the defendant” in cold blood. The use of the definite article in referring to the accused was held not to be taken as the court’s expression of a belief in his guilt.</p> <p>2. --To-Be Taken as a Whole — What is omitted from one part of the charge may be effectually supplied by what is said elsewhere therein. The jury were told by one instruction that to warrant a verdict of guilty they must -find that the killing was with premeditation. The failure to impose upon the prosecution the burden of establishing the defendant’s guilt, by the evidence, beyond reasonable- doubt, was held immaterial where this was prescribed elsewhere in the charge.</p> <p>One instruction told the jury that if they should find from the evidence beyond reasonable doubt that another person than the accused committed the homicide, and from the evidence, beyond reasonable doubt, that the prisoner unlawfully, feloniously, premeditatedly, etc., abetted or assisted, etc., he also was guilty of murder in the first degree. By another instruction the two degrees of murder as defined iii the statute were fully explained. Held, that the effect of "the instruction first quoted was not to take away from the jury the degree of the homicide. , .......</p> <p>By one instruction the jury were told that if they should find from the evidence beyond reasonable doubt that the prisoner and one Fields, at a timé and place named, wilfully, etc., .engaged in an attempt to rob the deceased, and in this attempt Fields inflicted upon the deceased a mortal wound, and at the time, etc., the prisoner “was present, unlawfully, feloniously, etc., aiding, abetting, assisting, etc.,” the prisoner was'guilty of murder in'the first degree. Held, that this instruction in no mariner invaded the province of the jury/</p> <p>By another instruction the jury were told that if Fields committed the homicide without premeditation, and that the prisoner aided therein, the prisoner was guilty of murder in the second degree, provided they should further find, etc., that the homicide was not committed in an attempt to rob. Held, that thereby the jury were in eí-. .feet instructed that though the homicide was without premeditation, it was murder in the first degree unless they should further, affirmatively, find that it was not committed in an attempt to rob. Whereas, if there was no premeditation, and the jury made no finding upon the question whether it wasi committed in an attempted robbery, the prisoner could be convicted only of murder in the second degree. And the evidence not being preserved in the record, it was not to be presumed that it supported only the charge of murder committed in the perpetration or attempted perpetration of a robbery, where the court had charged, not only upon that theory, but upon the theory of an actual preconceived design to take the life of the deceased, and upon the theory of murder in the second degree. ’ The conviction was therefore reversed.</p> <p>3. Bilx. oír Exceptioks — Hot Required of Defeated Parly — No law makes it- incumbent upon the defeated party, to bring the evidence into the record.</p>

<p>1. Statutes — Construction—A statute defining and denouncing a crime is to be strictly construed as against tbe state, but is not to be confined within narrower limits than the legislative intent. The legislative purpose is not to be destroyed by construction.</p> <p>2. Maxims — Of Construction — e. g., “Ejusdem generis,” “Noscitur a sociis,” “Expresio unius exclusio alterius,” are to be resorted to only when they afford aid in ascertaining the legislative intent.</p> <p>The maxims interpreted, their application explained, and held that in the words “any judge, justice of the peace, sheriff, coroner, clerk, constable, jailer, attorney general, or prosecuting attorney, mayor, alderman, or member of city council, member of legislative assemely, or other officer, ministerial or judicial,” in Rev. Stat. sec, 1720, it is not apparent that the legislature had in mind any particular class of officers, and that therefore these maxims afford no aid in the interpretation of the statute.</p> <p>3. Criminar Law — Bribery of Officers — The county commissioners of a county are ministerial officers within the meaning of sec. 1720 Revised Statutes, and a conviction may be had under the statute, for the bribery of one of the county board.</p>

<p>1. Practice — Bill of Particulars — It seems to be the general rule that in proceedings to enforce a mechanic’s lien, where the work was done for a stipulated price, no bill of particulars is required.</p> <p>But where the contract entitled plaintiff to a certain monthly-stipend “and his expenses” the defendant may require detailed information, concerning such expenses. So where the demand is for “material furnished.”</p> <p>2. -For What Demands a Lien Is Allowed — Where by the contract plaintiff was employed as superintendent, etc., at a monthly salary, “and his expenses,” the expenses were held to be as much a part of his compensation as the stated monthly allowance. But only such expenses as are incurred in the work for which he was employed are allowed to him.</p> <p>3. -Time of Filing Statement of Lien — Single or Several Contracts — The defendants, a railway company, and a tunnel company projected a railway, one terminus of which was in the mountains, and the other in the plains, and a tunnel, to he part of such railway. The work was projected and planned as an entirety. There were three lien claimants, one an engineer, a part of whose claim was for general superintendence at a monthly salary, and other portions of it for the construction of particular parts of the tunnel, and. laterals thereto, under separate contracts, and materials furnished in and for such construction. Another claimant had furnished material during different stages of the work, some to the defendant companies, directly, and some to the engineer while performing his contracts. The third claimant had sold and delivered ore cars to the railway company while work was proceeding in the tunnel. The'last delivery made by this company was in 1903. There was no cessation of work upon the railroad and tunnel, for the period of thirty days, from a date prior to December 1st, 1902, to July 1st, 1905. Neither the railroad nor the tunnel had been completed at the time of the trial. All the lien claims were filed in the early days of July, 1905. HeZd, that as the completion of the tunnel as an entirety was planned in the beginning, and all the work was performed and all the material furnished in furtherance of this general design, what was done under these several contracts was not to be regarded as a separate structure or thing, nor were the several contracts to be regarded as distinct, for the purposes of the lien'; that the liens attached to the railroad and tunnel as a whole, and that the several claims or statements of lien of the claimants were filed in apt time.</p> <p>4. -Relation, of Cla&m to the Beginning of. the Work — Held, further, that under Rev. Stat. sec. 4030 the liens related to the.beginning of the work and were preferred to a mortgage subsequently recorded.</p> <p>5. -Parties — In an action by a material man or subcontractor the original contractor must be made party; and if a mortgagee is. joined the owner must also be made party.</p> <p>6. -Judgment Against Owner — Evidence Against Mortgagee— The lien claimant must establish as against the mortgagee, not only the indebtedness of the owner, but that his claim is of a character entitling him to a lien. Therefore a judgment recovered by the lien claimant against the owner is admissible against the mortgagee, and conclusive that the claim has been adjudicated against the owner. But, as against the mortgagee it is not conclusive as to the amount, thereby awarded. And where the judgment against the owner is not pleaded by the lien claimant the mortgagee may assail it by evidence of payment made by the owners for which no credit was given by the lien claimant, in taking judgment.</p> <p>7. Pleading — What Mast Be Specially Pleaded — la a proceeding ¡to enforce a mechanic’s lien the owner of the premises and a mort.gagee thereof were made defendants. Judgments recovered hy the lien claimants against the owner, were, though not pleaded, admitted in evidence as against the mortgagee. Held, that if excessive in .amount they were to this extent a fraud upon the mortgagee, and •the mortgagee having had no opportunity to plead this defense it was not to he excluded for the failure to plead it.</p>

The opinion of' the court is in response to- the following communication from the senate: “To the Honorable Supreme Court of the State of Colorado•: Pursuant to the provisions of the constitution of the state of Colorado in that behalf made and provided, the senate, one of the houses of the nineteenth general assembly, now in session, does hereby respectfully submit certain questions hereinafter propounded, and does respectfully request that you furnish and deliver your…

<p>Limitations — Section IfilS of the Revised Statutes, applies to personal actions only and is no bar to a bill to remove a specific cloud upon tbe title to land*.</p>

<p>Limitations — Color of Title — Payment of Taxes — A treasurer’s deed is not color of title until recorded. One wlio, claiming under a void tax 'deed, would avail of the seven-year limitation prescribed by Rev. Stat., sec. 4090, must show the lapse of the statutory period, not only between the first payment of taxes and the institution of the action of the paramount owner, buv between the record of his deed and the institution of this action.</p>

<p>1. Criminal Law — Murder—Death of One by a Blow Intended for Another — One engaged in an affray with a particular person kills both that person and an innocent bystander. If guilty of murder in the | case of his adversary, he is guilty of murder in that of the by-I stander.</p> <p>2. --Information For, includes all the lower grades of homicide.</p> <p>3. -Evidence — Manslaughter—Where upon the trial of an information for murder there is evidence sufficient to go to the jury of circumstances tending to excite in the accused a sudden heat of passion, the question whether they amount to the statutory provocation, so as to reduce the offense to the grade of manslaughter (Rev. Stat., sec. 1625,) is for the jury.</p> <p>4. -Involuntary Manslaughter — One who, exercising the right of self-defense, discharges a pistol at his adversary, but acts without due regard to the presence of others, and unintentionally kills a bystander, may be declared guilty of involuntary manslaughter.</p> <p>5. -Instructions — Where upon the trial of an information for a murder there is evidence sufficient to go to the jury tending to show that the prisoner delivered the fatal shot under the influence of a sudden and irresistible passion, it is error to take from the jury the question of the degree of the crime. The jury must be left free to find guilty of manslaughter, even though the prisoner, testifying in his own behalf, asserts that he acted only in self-defense.</p>

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

— Hon. Greeley W. Whitford, Judge. The defendant in error in each of1 these cases is the assessor of the city and county of Denver.

<p>Water Right — Abandonment-—Failure for tlie period of eighteen years to apply to beneficial use, or in any manner control, water to which one is entitled, must be regarded as an abandonment of the. right, unless some peculiar condition excusing the delinquency is shown. Merely asserting a claim to the right through a continuous chain ' of paper title, even though coupled with an oral assertion of the right upon a single occasion, will not suffice.</p> <p>The evidence examined and held to lead to the irresistible conclusion that those under whom plaintiffs claimed had abandoned the right.</p>

<p>Practice in the Supreme Court — Appeal From, a Judgment Pursuing a Mandate, of this court awarded upon the judgment in a former appeal will be dismissed.</p>

<p>District Attorney — Appointment of Special Prosecutor — Upon affidavit filed, charging the district attorney, his deputy, and others with an assault upon the affiant, the district court appointed an attorney to prosecute the offense charged. The attorney so appointed filed an information against all the parties named, jointly. The district attorney and his deputy, being tried separately, were acquitted. As to the others, the special prosecutor entered a nolle, and later, by leave of the court, withdrew from the prosecution. The same affiant thereupon filed a second affidavit charging the same persons with instigating a riot at the same time and place mentioned in the former affidavit, and with committing an assault, not only upon himself, but upon members of his family as well. The district attorney thereupon filed a motion to quash the last information, upon the ground that the court, by the first appointment had exhausted its powers, and the second information was therefore a nullity.</p> <p>The motion was held properly denied and both certiorari and prohibition was refused. The authority of the court to appoint a special prosecutor in the second instance was declared to be the same, under the statute (Rev. Stat., sec. 2109), as in the first. — Gray v. District Court, 42 Colo. 298, distinguished.</p> <p>Hxii, J., dissented.'</p>

<p>1. Tax TItle — 'Void Deed — A treasurer’s deed appearing upon its-face to be based on a sale to tbe county, and an assignment of tbe certificate by tbe county clerk more than three years after its issuance, is void.</p> <p>2. Limitations — Color of Title — Good Faith — A deed void upon its face is sufficient color of title to set in motion the seven-year limitation act (Rev. Stat, sec. 4087). But it is not conclusive of the good faith of the party claiming thereunder. Affirmative evidence may be produced that the party claiming under such a conveyance, and asserting the defense of the statute, was conscious of the infirmity of his title, and while making payment of taxes, sought, by shifting the title through conveyances not recorded, to prevent the paramount owner from effectually assailing it. One so conducting himself will be denied: the benefit of the statute.</p>

<p>The case ruled by the judgment in number 7611 ante 248.</p>

<p>1. Constitutional Law — Revenue Bills — A bill designed to accomplish some well defined purpose other than raising revenue is not within the prohibition of sec. 31, art. Y of the constitution, even though, as incident to its main purpose, it contains provisions, the enforcement of which may produce revenue. An act, the primary purpose of which is to regulate insurance companies (Laws 1907, c. 193, Rev. Stat., c. 70) is not to be regarded as within the constitutional provision merely because certain small fees, and a tax upon the gross amount of the premiums collected in each year, are imposed upon the insurance companies.</p> <p>• 2. -Statute Unconstitutional in Part — If a statute contains an unconstitutional provision which was inducement to its passage, and all its parts are so closely connected as to compel the conclusion that the act would not have been passed without the vicious provision, the infected clause must be condemned to the extent of the infection. •</p> <p>3. • Statutes — Construed—An act making elaborate provision for regulating the business of insurance, and the conduct 'of insurance companies (Rev. Stat., c. 70) contained a section imposing, beside certain fees, an annual tax upon the gross amount of the annual premiums collected by the insurance companies, and exempted such corporations from all other taxes except those assessed upon real property. This exemption was void under sec. 6 of art. X of the constitution. Considering that since 1883, in all legislation upon the subject, insurance companies had been required to pay, in some form, a similar regulation tax, held, that the clause containing, the exemption might be rejected, and the residue of the section sav'ed.</p>

<p>1. ' Legislative Questions — As to Completed Legislation — The duty of the court in responding to legislative questions is limited to •those which relate to proposed legislation. Completed legislation is not a subject of legislative inquiry. It is not within the province of the court to advise the general assembly as to whether existing legislation upon any subject satisfies the requirements of the constitution. ■All departments of government are of equal dignity. Neither can declare that another has not performed a duty imposed by the constitution.</p> <p>2. -Pending Legislation — There were upon the statute books. two acts relating to the hours of service of men employed in mines, smelting furnaces, and other like places, one adopted by the general assémbly (Laws 1911, e. 149), and which being referred to the people, had received their approval. The other, initiated pursuant to section 1 of article V of the constitution, (Laws 1910, c. 3) assuming ta repeal the former. This act also received the popular sanction. A bill was pending in the general assembly upon the same subject, substantially identical with the earlier act, repealing both the former acts and declaring that the enactment therein proposed was “necessary for the immediate preservation of the public health and safety.”. Upon an interrogatory from the senate as to its duty in the premises, it being fairly inferrable from the communication that it was a desire of that body to pass an act which should remov'e the embarrassments attending the situation so presented, held, that the question was within the provisions of section 3 of article VI of the constitution.</p> <p>3. -Involving. Private Rights — Considering that private rights might have accrued under the act of 1911 or under the initiated act the court declined to express an opinion as to which, if either, was in force, or when either took effect, or as to the effect-of the repealing clause in the initiated act.</p> <p>4. Constitutional Law — Legislative Power — Under the provision of the constitution (sec. 1, art. V, .Laws 1911, c. 3), that “This-section shall not be construed to deprive the general assembly of the right to enact any measure,” the legislature may repeal even an initiated act, approved by the people. And may by declaring-that' a measure is “necessary for the immediate preservation of the public peace, health and safety,” prevent the reference thereof to the" people. Such a declaration concludes. all departments and all parties, in so far as it abridges the right to invoke the referendum.</p>

<p>1. Gambling — Statute Construed — Under section 1791, 1792 of the Revised Statutes neither' the keeping of gambling devices nor playing a game is prohibited, but only gaming for money or property, or betting upon the result of a game.</p> <p>A game is any sport or amusement, and includes physical contests, whether of man or beast.</p> <p>Gaming is the risking of money or property on a contest of chance, skill or hazard, wherever one must win and the other lose.</p> <p>Horse-racing is gaming, and a wager on the result of a horse-race is within the words of the statute, “any game whatsoever.”</p> <p>The statute prohibits gambling, the keeping of a place where gambling is commonly carried on, the keeping at such place, and exhibiting of gambling devices, and the betting of money or other property upon the result of any game.</p> <p>Gambling devices as used in the statute include any device or •apparatus kept or used for gambling.</p> <p>One who, at a race meeting, had a space adjoining the grand stand, a blackboard upon which were entered the names of the horses competing, received bets upon the races, and issued cards recording the bet, upon the presentation of which after the race he paid the sums won, was declared. to be guilty of keeping a gambling table, .establishmeht, device or apparatus.</p> <p>The territorial act of 1867 (Laws 1867, 114) is not a legislative construction of the statute against gambling. It simply suspended for one day in each year, at a certain place, the operation of the statutes against gambling, as to certain specified acts thereby prohibited.</p> <p>2. Statutes — Construction—Where identical words occur in different parts of a statute the same meaning is to be ascribed to them in each case, unless it clearly appears that a different meaning was intended, e. g., “game,” “gaming,” and other like words in the different sections of the criminal code against gambling are to be received in the same sense. Corson v. Neatheny, 9 Colo. 212, approved and followed.</p> <p>3. Dormant Statute — Things' clearly prohibited do not become lawful by the failure, for many years, to enforce the legislative will.</p>

— Hon Chas. Cavender, Judge. The district attorney of the fifth judicial district filed an-, information against the defendant in error, charging him with larceny of ores. Two others were also charged with the larceny of these ores, whether in the same or other informations, is not altogether clear; but that is not material.

<p>Railroad Company — Liability for Fire Negligently Set Out— limitation — Section 5512 of the Revised Statutes does not create or include a liability founded upon negligence. It is cumulative to the common law. The limitation of two years there prescribed has no application to an action founded on negligence in setting out a fire.</p>

<p>1. Practice — Change of Tenue — Application—An applieatioá for a .change of venue under Mills’ Stat., sec. 4613 (Rev. Stat., sec. 6963), must he verified hy the defendant in person. An application not so verified is properly denied.</p> <p>2. -Prejudice of Judge — Where an application for a change of the venue assigns as the ground, thereof prejudice on the part of the judge, affidavits expressing merely the belief of the affiant that the applicant can not have a fair trial, etc., because of the prejudice of the judge, not averring any fact upon which the belief is based, are insufficient. The requirement in the present statute that prejudice of ■the judge must be shown is of the same effect as the earlier statute by which the facts were expressly required to be stated.</p> <p>3. Criminal Law — Former Jeopardy — Conviction of murder in the second degree. Judgment reversed for error in law. Under the constitutional provision (sec. 18, art. II,) the accused stands in the Same position as if the first trial had never been had. He may be put upon trial for the highest degree of the crime.</p> <p>4. -Instructions — Homicide—Presumptions—On the trial of an information for wilful murder the court charged that where the homicide is committed “with a weapon calculated to produce and actually producing death, malice may be legitimately inferred, in the absence of proof that the act was done in necessary self-defense or upon sufficient provocation, and the presumption in such case will be that the act was voluntary, and committed with malice.”</p> <p>Held, -that the jury were not required to infer malice, but advised merely that such inference would be legitimate; that the question of malice was left to the jury. And the court having further charged that malice is not presumed in law, but for the jury to determine from the evidence, that it was not a subject of legal presumption, or inference, and that each fact necessary to establish the guilt of the accused must be proven beyond a reasonable doubt, by evidence of facts and circumstances consistent with the prisoner’s guilt, and inconsistent with any other reasonable conclusion, held, that any implication that malice was to be inferred as matter of law, was removed.</p> <p>5. Precedents — Effect—Expressions of the court upon a question incidentally presented are without authority.</p>

<p>1. Evidence — Relevancy—Action for an injury occasioned by the collapsing of a chair provided for plaintiff in the dining-room of defendant’s hotel, where plaintiff was a guest. There were many chairs in the same room, some like that offered to plaintiff, others of different style, structure, and fashion. The particular defects in the chair provided for plaintiff were not shown. Testimony as to the alleged defective condition of other chairs in the dining-room, and other accidents occurring there prior to plaintiff’s injury, was held irrelevant to the issue.</p> <p>2. Instbuotions — Assuming a Faet in Issue. In an action for an injury attributed to a defective chair negligently provided for plaintiff, a guest in defendant’s hotel, an instruction which permitted the jury to find for the plaintiff, if the chair .was defective, and defendant “had it used reasonable care” would have known of the defect, even though it had no actual notice thereof, is properly refused,. because assuming a want of reasonable care on the part of the defendant.</p> <p>3. -Objections and Exceptions To — The rule prescribed in Basse v. Berring, 36 Colo. 383, has no application to an instruction which contains but one proposition of law, and the objection calls the attention of the court to that particular proposition; nor to a case where each of several instructions contains a single proposition and objection is made to each separately, e. g., where in an action for an injury attributed to the negligence of defendant an inn-keeper, in providing for plaintiff a defective chair, an instruction which imposed upon plaintiff the burden to establish “that defendant invited plaintiff to sit in a chair which was unsafe and out of repair and known to defendant” to be so, prior to the happening of the accident and that the injury was “the natural and probable result of such negligent act of defendant” was held to present only a single proposition, to which a general objection was sufficient. — France v. Goryot, 30 Colo. 227, and National Fuel Co. v. Green, 50 Colo. 307, distinguished.</p> <p>4. Negligence — Reasonable Gare — An inn-keeper invites his guest to occupy a chair, which by reason of its defective condition collapses, precipitating the- guest to the floor. The inn-keeper is liable if by reasonable care he would have known of the defect, even though he had no actual knowledge thereof.</p> <p>5. Pleadings — Construed—Complaint for am injury attributed to the negligence of defendant, an inn-keeper, in providing for plaintiff, a guest at his hotel, a defective chair, alleged that the defect was “known to defendant,” before and at the time,, etc. Held, to admit evidence that the defendant would have known of the defect, if reasonably diligent.</p>

— Hon. H. C. Riddle, Judge. Defendant in error, as petitioner, brought an action in mandamus against the plaintiff in error, as respondent, in his official capacity as building inspector of the city and county of Denver, the purpose of which was to compel him to issue a permit for the construction of a building on the southeast corner of Colfax avenue and Williams street.

<p>1. Water Rights- — Adjudication of Priorities — It seems that after the proceeding under the statute for the adjudication of priorities -has gone to final decree, the same court may, in the same proceeding, entertain a supplemental petition, and adjust the priorities of consumers whose rights were initiated subsequent to such final decree, readjusting and renumbering all priorities from the beginning.</p> <p>2. -Liability of County for Fees of Referee — Under section 3300 of the Revised Statutes the counties embraced within a water district are liable for the fees of the referee, not only in the initial proceedings for adjusting priorities, but in a supplemental proceeding had under the original petition, on application of consumers whose rights were not determined by the first decree, but had their inception subsequent thereto.</p> <p>3. Practice in the Supreme Court — Presumptions—Unless the contrary appears it will -be presumed that the inferior court was acting within its jurisdiction.</p> <p>4. -What May be Assigned for Error — A- county having refused to pay the allowances made by the district court to the referee in a proceeding to adjudicate the priorities to the use of water, that court ordered each of the persons and corporations affected by the decree to pay into court their proportionate shares of the amount awarded to the referee, to be refunded to them if the award to the referee should be affirmed. Held, that the county was not affected thereby and would not be heard to complain thereof.</p>

<p>1. Cmminal Law — Homicide—Self-Defense—Right to Act on Appearances — Where to an information for murder the defense is that the prisoner acted in defense of his household against serious bodily injury threatened by the deceased, the jury are to take into consideration, what, under the circumstances, the prisoner might have reasonable cause to believe as to the intentions of the deceased. An instruction to the effect that in order that the doctrine of self-defense should apply, the jury must believe that deceased intended to assault or kill the inmates of the house, is error, as a denial of the right of self-defense as defined in the statute (Rev. Stat., see. 1632).</p> <p>2. -Evidence — Information for Murder — Deceased was the husband of a sister of the prisoner. The homicide was committed while deceased was attempting to forcibly enter the house of the prisoner where the wife had taken refuge, and was refusing to return to him. Evidence of acts of brutality committed by deceased upon the person of his wife, that these had been made known to the prisoner, that the wife had fled to the house of prisoner for protection, that deceased’ had made threats to take the life of both the wife and the prisoner, and that the general reputation of deceased was that of a quarrelsome' and dangerous man is admissible to show the state of mind of the prisoner, and the apprehensions which he might reasonably entertain as to the designs of the deceased.</p> <p>3. -Duty of Prosecutor — Information for wilful murder. Deceased was the husband of sister of prisoner. She- had taken refuge from the husband’s brutalities at the house of the prisoner-where her mother was also, residing. The homicide was committed while the deceased was attempting to force himself into the house: of the prisoner in order to coerce the wife to return to him. The prosecutor was permitted to propound questions which, by innuendo,, tended to reflect upon the moral character of defendant’s house, and those who resided there. There was no evidence justifying these insinuations. The conduct of the prosecutor was declared reprehensi ble. “It is the duty of all counsel to repudiate all appeals to unworthy prejudice, and this is eminently so in the case of one who-prosecutes for the people. I</p> <p>4. -Poor Person^Gonsideratipn Due To — The prosecutor is-bound to see to it that no unworthy advantage is taken of the accused, and this is especially so where accused is a poor person, and’defends by appointed counsel.</p> <p>5. House — Right of Householder to Defend — A householder may" repel by force one who seeks to forcibly enter his dwelling; and if the-•conduct, words, and known character of the assailant are such, as to ■excite in the mind of a reasonable person the belief that his purpose :is to kill or do great bodily harm to some person within the house, the householder is justified in carrying his defense, even to the taking •of life.</p> <p>6. Husband and Wife — Right of Husband to Control Wife’s Person — The husband is not entitled to enter the house and premises of another, against the will of the householder, for the purpose of •conferring with his wife, and persuade her to return to him; much less may he use force to compel such return.</p>

<p>1. Practice in Supreme Court — Questions not Presented, Below^ will not he considered in this court, even though upon application to vacate a judgment, and the objection goes to the jurisdiction of the; court.</p> <p>2. Judgment — Vacating—Summons not Personally Served— Whether upon application under section 81 of the code a judgment: rendered- without personal service may shall be vacated, is in the discretion of the court.</p> <p>The action was instituted in January, 1911, and judgment entered July 20th, A. D. 1911, upon publication of the summons, the' clerk of the court had mailed a copy of the summons and complaint to defendant, at the address given in the affidavit for publication. The motion to vacate the judgment was filed February - 11th, A. D_ 1912. No explanation was given of this delay. The affidavit in support of the motion failed to show that defendant was ignorant of the pendency of the cause, nor that he failed to receive the copy of the-summons and complaint, nor that the address given in the affidavit for publication was not his address. The affidavit was held insufficient, and the motion properly denied.</p>

<p>Practice in the Supreme Court — Writ of Error Sued Out CoTlusively, and under a precedent agreement that the defendant in error shall confess errors, the controversy of the parties being adjusted, and the real purpose being to vacate an allowance to the attorneys for their fees, will be dismissed. Such proceeding is a fraud upon the attorneys and an imposition upon the court.</p>

<p>1. Pleadings — Construed—A complaint upon a bond given in certain appeals from a magistrate’s court to the county court averred that after such removal of the causes to the county court each of “said actions” was dismissed. In view of other allegations manifestly importing that the causes were still depending, “actions” was construed to mean “appeals.”</p> <p>2. -The bond provided that the principal should pay any judgments that might he rendered upon dismissal or trial of the appeals, “or” surrender herself in satisfaction thereof. The complaint averring simply non-payment of the judgments, without specifically negativing the condition following the disjunctive “or,” was held sufficient. The surrender of the principal would have satisfied the judgments, and they would not .have remained “due and unpaid,” as the complaint alleged.</p> <p>3. ——Waiver—Uncertainty or ambiguity in a pleading if not assailed by demurrer. or motion is waived.</p> <p>4. Evidence — Admission by Conduct — -Delivery of an appeal bond by the surety therein, with, a signature affixed purporting to be that of the principal, and the filing thereof by.the principal, is sufficient evidence erf the verity of such signature.</p> <p>5. Principal and Agent — Agents Authority — Presumptions — There is a presumption that a known agent acts within his authority. Defendant, a surety company, by its local agent delivered to á magistrate an. appeal bond. The magistrate, rejected it ^as not in form, requiring certain changes. The agent returned the bond, with changes which were material and changed the character of the obligation, writing to the magistrate that he “had corrected the bond,” and that it would be delivered (by the appellant’s attorney. It was so delivered and accepted by the magistrate. The local agent was employed for the purpose of obtaining such business. It was his duty to furnish similar bonds whenever satisfactory opportunity presented itself. He had the apparent as well as the real authority to deliver the bond of the company. It was held that the magistrate had the right to presume that the agent was acting within his authority, and that the company should not be heard to deny the bond, in view of the fact all that the agent did was, to all appearance, what he was authorized to dov</p> <p>6. Voluntary Bond — Validity—A voluntary bond, given upon consideration, not prohibited by law, binds the surety, though not in statutory form. , |</p>

<p>Error to Denver District Court. — Hon. Hubert L. Shattuck, Judge.</p>

<p>1. Pleading — Waiver—A •demurrer for a misjoinder of plaintiffs is overruled. Defendants answer and proceed to trial. The misjoinder is waived.</p> <p>Misjoinder of plaintiffs, not appearing by the complaint, may be taken advantage of by answer. If not so brought in question it is waived (Mills’ Code, Sec. 55, Rev. Code, Sec. 61).</p> <p>2. Body Judgment — Rescission of Contract for Fraud. One who by fraudulent misrepresentation has been induced to enter into a contract may either have, his action for the deceit, or rescind the contract and recover what he has paid. Relief in either form of action is grounded upon the allegation of fraud, and, prevailing in an action to rescind, he may, under the statute (Rev. Stat., Sec. 3024), have execution against the body. The rescission of the contract is no waiver of the fraud.</p> <p>3. Evidence — Fraud•—The defendants induced plaintiff to purchase an interest in a worthless mine by falsely representing, among other things, that one of them had paid to the other a large sum of money for an interest in the property, exhibiting a check for the sum mentioned. In fact the check was drawn upon a bank where the drawer had no funds, and after the accomplishment of the fraud was surrendered. In an action to rescind the purchase it was held that evidence of this false representation was properly admitted; that the rule that false representations by vendor as to what he has paid for what he proposes to sell, bad no application,</p> <p>4. Practice in Supreme Court — Harmless Error — Plaintiffs, by false representations of defendants, had been induced to purchase from one of them an interest in a leasehold of a worthless mine, and from the other an interest in an option from the owner of the same premises. Under this option so assigned to them, plaintiffs, moved by the same false representations, had purchased an interest from the owner, paying therefor a large sum of money. In an action 'by plaintiffs to rescind the transaction the district court allowed them the money obtained by defendants, but refused to- make any award in respect of what had been paid by plaintiffs to the owner. This was .assigned for error, as permitting a rescission in part; it being contended that plaintiffs should have been required to restore to the defendant owning the option, what they had purchased thereunder. Held, that as this would have required defendants to pay plaintiffs a large sum of money for what was of no value, the error if any was to the advantage of defendant, and not prejudicial.</p>

<p>1. Statutes — Construction—In the construction óf a statute all provisions pertaining to the same subject are to be taken together.</p> <p>In construing the proviso to sec. 1, of the act for the organization of irrigation districts (Laws 1901, c. 87) the -first proviso to section 2, that the county commissioners shall not modify the boundaries of a proposed district so as to exempt from the operation of the act any territory within the proposed boundaries “which is susceptible of irrigation by the same system of works applicable to other lands in such proposed districts”; as well as the second proviso in the same section that “any person whose lands are susceptible of irrigation from the same source shall, upon application to the board, be entitled to have his lands included in said district,” are to be taken into consideration.</p> <p>2. Estoppel — By Conduct — Plaintiff sued to restrain the collection of irrigation district taxes upon certain lands, and for a decree that his lands were no part of the irrigation district. His complaint alleged, and the court found, that prior to the organization of the district, and éver since, he was the owner of water rights sufficient for the irrigation of his lands, and which he had always since applied to this purpose; and that the district was not formed to acquire such water rights, and had not acquired them; upon account of which facts the plaintiff claimed that he was within the proviso to the first section of the act under which the district was organized (Laws 1901, c. 87).</p> <p>But plaintiff, with full knowledge of the situation, had signed the petition for the organization of the district, which, as therein defined, included the land described in his complaint. During two years following the organization of the district he-had paid irrigation district taxes upon said land. Without objection from him, proceedings had been taken, and a decree entered1 under the act, declaring the validity of the distri-ct, and confirming an issue' of district bonds. The court were of the opinion that if plaintiff’s lands had not been included within the district as proposed, he might, under the last proviso of section 2, have procured them to be included; that his signature to the petition was equivalent in effect to an application under this proviso, was a representation that his lands were such as might under the statute be so included, and a prayer for such inclusion; that the action of the board of county commissioners establishing the district wa.s in the nature of a judgment; and that plaintiff by his conduct was estopped from afterwards denying, or bringing in question, the truth of his own representation upon which the. board had taken action, especially in view of the fact that the district had contracted a large indebtedness to supply water to all the lands included therein.</p> <p>A statute- (Act 1901, c. 87) required, as the initiatory step for the organization of an irrigation district, a petition to the board of county commissioners, signed by a majority of the resident free holders who were qualified electors and owners of a majority of the whole number of acres belonging to resident electors, within the proposed district. Held, that one who has subscribed such a petition will not be permitted to afterwards dispute the facts therein asserted, even though his name is necessary to make up the required majority.</p>

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

<p>1. Water Right — Evidence—The petitioner in proceedings in the Eminent Domain Act impliedly admits that those named as respondents are the owners of the land, and of all appurtenances thereof, including the right to enjoy the waters of a spring rising thereon, and seepage waters which accumulate there, all of which such respondents have for many years applied to beneficial uses.</p> <p>2. Eminent Domain- — Damages to Land Not Taken — In proceedings under the statute of eminent domain'the jury should allow all damages, present and prospective, which are the natural and necessary or reasonable incident of the taking.</p> <p>3. -Negligent or Wrongful Construction — Anticipated damages, by reason' of the negligent or unlawful construction of the improvement, by the petitioner, are not to be allowed. But where, before the hearing the petitioner had assumed possession, and constructed an irrigating canal across a gulch or ravine, by means of an embankment, without any opening, and had thus prevented the land owner from receiving the waters of a spring which rose above the embankment, and seepage waters which before that had, with the waters of the spring been wont to flow down the gulch, and had for years been applied by the land owner to beneficial uses, it was held, not a case of anticipated damages, but an actual, present injury, depreciating the value of the land not taken, and for which, though resulting from the manner in which the work was constructed was properly considered, in the estimate of damages.</p> <p>4. -Incidental Damages — 'Destruction of growing crops, injury by flooding, to an orchard, upon the land not taken, and to buildings situate thereon, additional fencing made necessary by reason of the improvement, and that portions of the land are made inaccessible and practically valueless, are proper matters of consideration, as bearing upon the difference in market value, before and after the taking, of the land not taken; but not as constituting separate elements of damage. No allowance should be made for these particular injuries, as such. They are to be considered solely as bearing upon the depreciation in value of the land not taken.</p> <p>5. -Evidence — Rental Value, of the land, within a time reasonably proximate to the time of the assessment, may be shown to aid in estimating the depreciation in value of the land not taken. The assessment being had in March, 1910, held, that the rate at which the land rated prior to 1908, was properly rejected, as too remote.</p>

<p>1. Public Officer — Fees—Where fees are the only compensation allowed by law to a public officer for the discharge of his official duties, he is not entitled to compensation for the discharge of duties for which no fee is prescribed. The performance of such duties without compensation is a burden which the officer assumes when he accepts the place.</p> <p>2. Coroner — No Fee Allowed for Mere Investigations — Under Rev. Stat., sec. 2577, the coroner is not allowed compensation for the investigation of cases of violent or sudden death, when he holds no inquest; and section 1219 of the Revised Statutes does not have the effect of allowing such compensation.</p> <p>3. Statutes — Construed—A statute allowed the coroner a specified fee for each day employed in holding an inquest. Another statute prescribed the manner in which accounts against the county should he made, requiring that each item should he separately stated, and adding “and where no specific fees are allowed by law the time actually and necessarily devoted to the performance of any service charged in such account shall be specified.” Hem, that the latter statute has not the effect to entitle the coroner to compensation for the investigation of violent or sudden deaths, where no inquest was held.</p>

<p>1. Criminal Law — Embezzlement of Corporate Funds — Consent of Officers — Where the officers of a corporation fraudulently consent to the appropriation of its funds by one of their number, on pretense of satisfying a factitious and groundless claim which he asserts against theT corporation such consent is no defense to the charge of embezzlement.</p> <p>2. -Evidence — Depositions'—-In order to enable certain nonresident witnesses for the people to return to their homes their depositions are taken, under the statute (Rev. Stat., .Secs. 7277-7279), by. consent and in the presence of the accused. It is not error to receive such depositions, in behalf of the people though no affirmative proof is given that the -personal attendance of the witnesses might not be procured.</p> <p>3. —1—Letters of Corporation Admissible Against the Managing Officer — Information against the managing officer of a corporation for embezzling the corporate funds. Letters purporting to come from the corporation, and shown to have been received, in due course of mail, by the witnesses producing them, and which relate to transactions had between the corporation and those so producing them, at a time when the accused was controlling the affairs of the corporation and which tend to show the -source of the funds in question, are admissible, without evidence identifying the handwriting of such letters.</p> <p>4. -Copies of Letters — In the same case copies of letters written or dictated by the accused, in reply to those received from the corporation, were held admissible against him, the originals not being Iiroduced nor accessible.</p> <p>5. -Copies of Letters of the Corporation, found in its impression book, written at defendant’s dictation, and mailed to persons in other states, were held admissible against him, without any showing to excuse the non-production of the originals. The hook was regarded as, in effect, containing the letters of the accused, and the letters a declaration against interest.</p> <p>6. -Annual Report of the Corporation, filed in the secretary’s office and certified therefrom, and tending to show criminal intent, held admissible for the people.</p> <p>7. -Account Books of the Corporation — Information against the managing officer of a corporation for the embezzlement of its funds. The defense being that the moneys in question had been properly applied by the accused to discharge salary due him, the account books of the company were held admissible to show what had in fact been paid him on account of salary.</p> <p>The evidence held sufficient to identify the books produced, as those of the corporation.</p> <p>8. -Expert’s Examination of Account Books — Voluminous Books of Account of such character as to render it difficult for a jury to arrive at correct conclusions therefrom, may be explained by an expert accountant, and the true state thereof shown by his testimony —the books being produced in court.</p> <p>9. -Relevancy--The corporation, the embezzlement of whose funds was charged against the prisoner was in effect the accused himself. Held, that its insolvency might be shown as bearing upon the intent of the accused.</p> <p>10. -Witness — Competency—One K, while in the employ of the corporation whose moneys the prisoner was alleged to have embezzled had been giving information to the attorneys of certain parties -with whom the company was dealing. Being discharged he was at once taken into the care of, and supported by, one of these parties, a creditor of the company, and the same by whom the present accusation was instigated and prosecuted. The same witness had made oath to the information against the prisoner. Held, that he was nevertheless, a competent witness for the people.</p> <p>11. Wkit of Error — Harmless Error — The admission of evidence cures any error in its previous exclusion.</p> <p>The admission of evidence having no bearing upon the matter in issue is harmless.</p> <p>12. Evidence — Cross-Examination—The extent to which cross-examination may be carried is largely in the discretion of the trial court. One who had been a prisoner in the county jail at the same time with the accused, testified to conversations had with him during such imprisonment. This witness had been in jail on several occasions. Held, not an abuse of discretion to exclude a question propounded on cross-examination, as to the charge upon which he had first been arrested.</p> <p>18. Instructions — To Be Construed As a W-hole — Where the law of the case is clearly and explicity set forth in one point of the charge the effect of equivocal language elsewhere therein is eliminated.</p>

<p>1. Sale — Option to Return — Effect—Where goods are purchased with an option to return them, the title passes, subject to the right to rescind and return.</p> <p>2. -Option to Purchase — In the case of a mere option to purchase the title remains in the one granting such option; the delivery of the goods to the one receiving the option is a mere bailment. If the bailee fails to exercise his option within a reasonable time, where no time is specified, the bailor may recall the goods.</p> <p>3. -Duty of Seller — One who has granted to another an option to purchase an article, no time being appointed for its return, or for the exercise of the option, shortly thereafter closes his place of business, goes abroad, and so remains till after the death of the optionee. He is not to be heard to complain of the failure of the optionee to return the article, nor will the option be converted into a purchase by such failure.</p> <p>Whether the optionee was under duty to take affirmative action, and return the goods, Quere.</p> <p>4. Contracts — Construed—A memorandum was signed by both parties as follows: “Pictures left with Mr. Smith on approval.” Then followed the names and description of certain pictures. Opposite to each was set down the price, the whole amounting to...........$1,900</p> <p>Under this was the following: “Credit by old frame...... • 10</p> <p>“$1,890”</p> <p>“The above paintings may be exchanged at any time for face value “(that is, the price paid plus the increased market value).” Held, not a sale but a mere option to purchase.</p>

There has been submitted to this court, by the honorable senate of the nineteenth general assembly now in session, the following resolution: “Senate Resolution No. 9. By Senator Cornforth.

<p>1. Contracts — Validity—Restraint of Trade — One purchasing the business of a competitor with the good will thereof may lawfully exact from the seller a stipulation not to carry on the same business within such limit of time and space as is reasonably necessary for the buyer’s fair protection. There mere fact that such restraint extends to the limit of the state, or even to a wider territory, is not of itself sufficient to condemn it. The public welfare is the first consideration, and if this is not adversely affected, and the contract imposes upon the seller no greater restraint than is necessary for the protection of the buyer, it is sustained.</p> <p>2. Monopoly — Discountenanced—The law regards with high disfavor any condition, that tends to stifle competition in the necessities of life, or in those things which contribute to the general comfort and welfare, and where such condition is asserted the court will make most careful and diligent inquiry to ascertain the very truth of the matter.</p> <p>3. -Evidence — That a dealer, after purchasing the stock and good will of the competitor, advances the price of the commodity which is the subject of his business, is not sufficient of itself to establish an improper motive as animating his purpose. The question is best determined by the prices demanded by other dealers in the same commodity within the same territory, and the effect of the new quotations upon the general market.</p> <p>Where after the purchase there still remained in the same field many competitors, and the defendant himself, shortly after disposing of his stock, again engaged in the same line of trade, in violation of his covenant, the contention that the purchase in question tended to create a monopoly was held to be entirely overthrown.</p> <p>3. Dtjbess — Evidence—Defendant had sold his stock, business and good will, covenanting n-ot to engage in the same line within a limited time and area. On- bill brought to restrain the violation of this covenant the defense was that defendant’s contract was induced by threats made by the plaintiff. The fact that, very shortly after the sale, defendant had resumed business in the same line was held to negative this contention.</p> <p>4. Contracts — Inviolability of — Public Policy — To a bill to restrain the defendant’s violation of a covenant not to engage in a certain business for a limited time and area, the defendant set up the unfounded pretense that the sale of his stock and good will upon which his covenant was founded conferred a monopoly upon plaintiff, or tended so to do. The court, repelling this contention upon the facts shown, observed that while the general welfare is subserved by healthy competition there can be ho sound or wholesome public policy which lends approval in the slightest degree to the open violation of personal -contracts entered into in good faith, and upon fair consideration; that it is quite as important to the public welfare that evil minded persons be not allowed to transgress with impunity their solemn undertakings, as that the public should have protection in other respects.</p>

<p>1. Judgments — Void or Voidable — Collateral Attach: — A decree rendered by a court which has not acquired jurisdiction, and where this absence of jurisdiction appears by the record, is void, and may be assailed directly or collaterally.</p> <p>If there be any jurisdictional infirmity, not apparent by the record, the judgment is voidable merely, and in full effect until reversed, set aside, or declared void, in an action brought to try the very issue.</p> <p>Mere error or irregularity though sufficient to reverse the decree on appeai or error brought, has not the effect to render it void.</p> <p>Where a court proceeds to hear and determine a cause without service made for the period prescribed by statute for defendant’s appearance, the judgment is void.</p> <p>2. Administrator’s Sale oe Land — Petition—The petition of an administrator for leave to sell the lands of his intestate for the payment of debts, which conforms substantially to the requirements of the statute is sufficient.</p> <p>3. • — ■—Decree—Presumptions—It is presumed that the county court in directing the sale of an intestate’s land, pursuant to the statute, found from evidence produced at the hearing that the personalty was not sufficient to discharge the decedent’s debts, and this finding is not to be overthrown by evidence that the court was mistaken.</p> <p>The personal estate of the decedent was shown by the inventory and appraisement to have a value largely in excess of his debts. The petition averred that this value was wholly prospective, the property, aside from certain exempt household goods, consisting of mining stock not susceptible of sale at any price. On bill in the district court to vacate the sale, the presumption was indulged that the court heard evidence and found this averment to be true.</p> <p>4. --Relief in Equity — Evidence—In the same case, there being no evidence that the action of the county court was founded m fraud, held, that it was not competent to receive evidence that, in fact, there was no necessity to make sale of the real property to- discharge the decedent’s debts.</p> <p>5. -Widow’s Allowance a Debt — The widow’s allowance is a debt of the estate, for which, if the personalty be insufficient, the lands pertaining to the estate may be sold.</p> <p>6. Process — Return—Evidence to Contradict — To contradict tha sheriff’s return of the service oí mesne process, and the recitals of the record declaring service, the evidence must be clear, unequivocal, and sufficient to exclude all reasonable doubt.</p> <p>The return .of the service of a summons was supported by the testimony of the officer who made it, and the attorney who directed it. Testimony of one of the defendants to the proceeding that eleven years prior to his deposition, and when he was a mere boy, necessarily having no conception of the purpose or effect of legal proceedings, he. was not served with the summons, no circumstance being shown to fix the occasion in his mind, is not sufficient.</p> <p>The question being whether the .summons was served on the 22nd or 29th of the month, a certified copy from the docket kept in the sheriff’s office, showing service on the latter date; the account kept by, the keeper of the livery stable at the place of service, showing that the officer who made the return had a certain conveyance on the 29th, it not being shown for what purpose, and the statements of the officer, afterwards made, that whatever appeared in the sheriff’s docket was true, held, insufficient to overthrow the return which showed service on the 22nd.</p> <p>The officer’s'returnis riot'to be impeached by a record kept in his' office; nor by his statements orally made at a later date.</p> <p>» 7. ’ District Court — Jurisdiction—The district court has no jurisdiction to review the judgments of the county court and vacate them for error.</p> <p>8. Equity — Purchase Bona Fide — Notice—Presumptions—Where' it is sought to set aside the title of one who is admitted to have purchased for value, without actual notice of an alleged fraud invalidating' bis title, upon evidence of matters putting him upon inquiry, it will not be presumed that inquiry on his part, diligently pursued, would' have resulted in the discovery of any other or different facts than those which the complaining party establishes on the trial.</p> <p>The evidence produced to establish constructive notice examined and held insufficient.</p>

— Hon. George W. Allen, Judge. The city and county of Denver entered into a contract with its co-defendants in error to construct what is commonly known as the Twentieth street viaduct, with an approach on Delgany street, which runs at right angles to Twentieth street. Plaintiff in error owns a lot abutting on Delgany street in front of which the approach on the latter street is constructed.

— Hon. John W. Sheafor, Judge. Appellee, as plaintiff, by his next friend , brought suit against the city of Victor to recover damages sustained by the alleged negligence of the latter. The trial resulted in a verdict and judgment in favor of plaintiff, in the sum of $7,500, from which the defendant has appealed.

<p>Contempt — Application for Change of the Trial Judge —In an application for a change of the trial judge the facts upon which the alleged bias of the judge then presiding is predicated, must be set out. This is not a contempt, unless it is established by evidence that such statement of facts was made with the reckless disregard of the truth, or with the intention to reflect upon the honor, integrity, and character of the judge.</p> <p>A conviction of contempt in such case, without evidence, where the language of the application is not contemptuous per se is error.</p>

<p>1. Appearance — Effect—Objection to the return of process must be made in limine, by plea in abatement, or motion. An answer to the merits waives it.</p> <p>2. Mechanic’s Lien — Material Furnished But Not Actually Used —Under sec. 4025 of the Revised Statutes, one who, acting in good faith, supplies material for the erection of a building at the instance of the principal contractor therefor, is entitled to a lien for the value of such material, even though some of such material went into another structure, and some was sold by the contractor.</p> <p>3. --Material Furbished "Without Any Specific Agreement — As to the use to be made thereof, or to what building it is to be applied, gives no lien.</p>

<p>1. Evidence — Lost Writings — Evidence of Loss — The law does not require direct and positive proof of the loss or destruction of a document, but only such evidence as will raise a reasonable inference of such loss or destruction. Action upon a bond to secure performance of a contract for the construction of a house, according to the plans and specifications of an architect named. The contract provided that the specifications were and should remain the property of the architect. The architect testified that he had made very careful search for them, entirely without success. Held, that the loss of the specifications was satisfactorily excused, and the contract, without the specifications, was held properly received in evidence.</p> <p>But the court note that the action was not founded upon any departure from' the plans or specifications, and that the cause could as well be determined without them as if they had never existed.</p> <p>2. Interest — Exceeding Liability of Surety — The later authorities, and the preponderance of authority, is to the effect that in an action against the surety for performance of an executory contract, interest may be allowed, even though the effect is to exceed the penalty of the bond. The allowance is made, however, not as part of the debt, but as damages for its detention.</p> <p>But where the surety has no knowledge of the default a demand must be made, and interest is allowed only from the time of such demand.</p> <p>3. Demand — Institution of Suit, is a sufficient demand. Interest from that date, only, is allowed where the creditor is entitled to interest only upon demand, and no demand is shown.</p> <p>4. Surety Company — Character Of — Contracts How Construed— The doctrine that a surety is a favorite of the law, and that a claim asserted against him is strictissimi juris has no application to a bond, executed upon consideration, by a corporation organized to execute such bonds for a profit. Such a corporation is in effect an insurer; its contracts are, as a rule, in terms prescribed by the corporation itself, and should be construed most strongly in favor of the obligee.</p> <p>,5.---Contract for Erection of Building■ — Surety Liadle for Liens ■ — The contractor for the erection of a building agreed to “furnish all materials and do all the work,” etc. Defendant became surety for such contractor. Held, that defendant was liable for the amount of a lien established against the building for material furnished the contractor, though the owner had not discharged such liens.</p>

<p>1. Wills — Construction—Courts are bound to give to a will such a construction as will carry out tbe plain intention of tbe testator.</p> <p>2. -Construed — Tbe testator bequeathed $50,000 for tbe erection and maintenance of a borne for poor widows and orphans, but upon a condition precedent impossible in law to be performed, following this bequest with tbe direction that “otherwise the said $50,000 to revert back, and be divided” among certain legatees named. Held, that the manifest intention of the testator was that if, for any reason, the conditions prescribed in the provision made for the home, should not, or could not, be performed the gift over to the legatees should immediately take effect. An order making distribution accordingly, affirmed.</p>

<p>Appeals — Verdict on Sufficient, Though Conflicting Evidence, will not be disturbed.</p>

<p>Estoppel — By Record — Action for deceit in the sale and conveyance of certain lands, and a water right for the irrigation thereof. The complaint alleged misrepresentation as to the character and value (if the water right. In a former action against the defendant plaintiff, at first, made the same charge of fraud, hut afterwards, with full Knowledge of the facts, abandoned such charge, and so amended his complaint as to assert that the conveyance in question was effective, not only as to the water right therein described, but also conveyed, as an appurtenance to the land, another water right theretofore vested in defendant, and in the trial of such former cause, plaintiff had in open court, declared by his counsel that he made no claim that he had been defrauded in the transaction which culminated in such conveyance. Held, that he was estopped to renew the charge of fraud.</p>

<p>1. Mechanic’s Lien — Applies to a. Leasehold in Land — One furnishing material for the improvement of real property by contract with one having a mere leasehold, is, under the statute (Rev. Stat., Sec. 4027) entitled to a lien upon such leasehold estate.</p> <p>2. -Right of Tenant to Remove Fixtures — An agreement between the landlord and tenant that the latter may remove the structures which he erects, or the improvements which he places upon the demised premises, has no effect to change the character of such structures, as against third persons.</p> <p>The tenant had purchased from the lien claimant a boiler, engine, and other machinery and appliances, and erected the same in a building situated upon the leasehold. His intention was that the whole should constitute, and be operated as, a mill for the treatment and reduction of ore. The machinery and appliances were necessary to accomplish this purpose. Held, that they thereby became part of the leasehold and were not, as against the lien claimant, liable to be sold as personalty on execution against the tenant.</p> <p>3. -Decree — In Part for Things Not Lienable — A decree awarding a lien, in'part for things not the subject of a lien under the statute, fails only to the extent of those matters as to which the allowance is improper.</p> <p>4. -Parties — Where the lien is asserted only against the leasehold interest of the tenant, his landlord is not, under sec. 4035, Rev. Stat., a necessary party.</p>

<p>1. Evidence — Judicial Notice — A municipal ordinance is not judicially noticed but must be established by proof.</p> <p>2. Municipal Corporations — Power to Abate Nuisances — Paragraph 45 of sec. 6525 of the Revised Statutes is not self-executing. The power granted must be exercised through an ordinance. The power granted hy paragraph 53 of the same section, to prohibit “within one mile beyond the outer limits of the town any unwholesome or offensive business,” has no application to places for the keeping or sale of intoxicating liquors, but only to such things as are offensive, or unwholesome within the ordinary use of the term, e. g., slaughter houses, pig-sties, feeding places, and the like; and even conceding the application of the provision to places kept for the sale of intoxicating liquors, it confers no power to declare such establishments beyond the limits of the town a nuisance.</p> <p>3. -Manner of Exercising the Power — The procedure for enforcing an ordinance prohibiting the sale of intoxicating liquors should be regulated by ordinance. If such establishments are declared a nuisance one charged with' the offense should be prosecuted and tried on the specific accusation of maintaining a nuisance. The manner of effecting the abatement should be prescribed, and the order of abatement should conform to the ordinance, and the manner of proceeding should not be left to the discretion of the officer.</p> <p>4. Municipal Ordinance — Prosecution■—Conviction of Offense Not Charged — Charge of “selling and keeping liquor for sale.” Conviction of “maintaining a nuisance,” a fine imposed, and abatement of the nuisance ordered. The conviction is void.</p> <p>5. -Publication — The statute (Rev. Stat., sec. 6673), provides that all by-laws of a town imposing a fine, etc., shall be published in a manner specified, and “shall not be in force until the expiration of five days after they nave been so published.” An ordinance declaring the keeping for sale of any intoxicating liquors a nuisance, and that the same “may be abated as any other nuisance.” The provision quoted was never published. Held, that such provision never became of force, and a judgment convicting the accused party of maintaining a nuisance, and directing the abatement of such nuisance, is no justification for acts done pursuant thereto.</p>

<p>Public Officer — Violation of Public Duty — Liability to Private Action — The statute directing the county clerk to publish, prior to every election, the list of all nominations (Rev. Stat., Sec. 2159) prescribes a public duty, for the benefit of the public only. It imposes upon the clerk no duty towards the publisher of any newspaper, and his refusal to make such publication in the only daily newspaper of the county affords no action to such publisher.</p>

<p>1. Equity — Reformation of Writings■ — The general rule is that a contract entered into under mistake as to some essential element may be avoided in a proper action. . .</p> <p>The defendant was indebted to plaintiff in $3,500, the balance of the contract price for the erection of a school-house. Through mistake as to the amount which he had received he stated the balance due him at $2,285.00, and claimed the further sum of $200.00 on account of extras, and damages by reason of delays of the district. A compromise was finally effected by which he accepted $2,385.00 in full settlement of his demand, each party believing at the time that this was the true balance of the contract price.' Plaintiff was 'entitled to vacate the settlement, and have a new settlement made based upon tre true facts.*</p> <p>2. -Mistake of One Party Only — In the same case it was said</p> <p>that if defendant, being conscious of plaintiff’s mistake, took advantage of it, he would still be' entitled to relief.</p>

<p>1. Divorce — Appearance of Defendant — Effect—Action by husband for a divorce. The wife’s voluntary appearance dispenses with the service of process, and confers jurisdiction upon the court.</p> <p>2. Pleadings — Judgment on the Pleadings — Where the reply admits the substantial averments of a sufficient answer defendant is entitled to a judgment on the pleadings; and a judgment accordingly, is not erroneous even though a demurrer pending to the replication remains undisposed of.</p> <p>3. Judgment — Record Construed — The record declaring that plaintiff ^elected to “stand upon his replication” held to show that a demurrer thereto was sustained.</p>

<p>1. 'Mechanic’s Lien — Date of Completion of Building, settled by the opinion in Curtis v. McCarty, 53 Colo. 284.</p> <p>2. --Acceptance of Building Toy Owner from Contractor, does not set in course the statute prescribing the time in which a sub-contractor must proceed to enforce his lien.</p> <p>3. -Failure to Record Contract — Effect—Where the sum to be paid by the owner for the erection of the building exceeds $500.00, and he fails to cause such contract to be recorded as required by sec. 4025, Rev. Stat., every sub-contractor, material man, etc., is placed in the position of principal contractor, so far as relates to his claim of lien, and no notice of his lien is required to be served on the owner, under Rev. Stat., sec.. 4033.</p>

<p>1. Municipal Corporations — Action for Personal Injury — Notice— WHere in an' action against a municipal corporation for a personal injury attributed to its negligence, it appears that notice in writing, in all respects sufficient, was served upon the mayor in due time, that he accepted it and waived the service of further notice, and that the council within the statutory period considered such notice and acted thereon in their official capacity, the purpose of the statute (Rev. Stat., sec. 6661) is accomplished, and the plaintiff’s failure to serve notice upon the cleric does not defeat the action.</p> <p>2. --Notice to the Olerh, affects the city, though the clerk fail to communicate it to the council.</p> <p>3. Pleading — Ambiguity, not complained of by special demurrer or motion is waived.</p>

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

<p>Alteration of Writing — Filling Blanks — Effect—A promissory note, blank as to the rate of interest and the time from which interest is to be computed, is subscribed by the principal maker, and the sureties, and delivered by the principal to the payee named therein. The payee, without authority of the sureties, fills the blanks and advances money thereon to the principal. The alteration is a material one, and the instrument is thereby avoided.</p>

<p>1. Prohibition — Not a Writ of Right — Whether it shall he granted rests in the sound discretion of the court.</p> <p>2. —'—Diligence Required — One who acquiesces in a judgment or order will not afterwards be allowed a writ of prohibition to restrain action thereunder.</p> <p>On the 7th of February, A. D. 1911, in the district court, receivers were appointed for a corporation alleged to be possessed of valuable properties, but largely indebted and without ready means to discharge pressing debts, or accumulating taxes, or to operate its property. The bill upon which the appointment was made alleged not only these matters, but that if creditors were allowed to proceed with their actions, dissipation and waste of the corporate assets would result, to the injury of both creditors and stockholders. On. the first of March succeeding, other creditors and stockholders applied for leave to intervene in the cause, alleging that the receivers were appointed without notice, that the attorney who assumed to appear for the corporation and consent to tie appointment, acted without authority, and that the bill was without equity. This application was denied on March 11, A. D. 1911. No exception was taken to the ruling, and no further action had until January 6th, A. D. 1912, when the same creditors and stockholders presented a second petition for leave to intervene, setting forth their first petition and the action taken thereon, reiterating its statements, and alleging that in denying such original application the court was influenced by representations made at the time of the receiver’s appointment, that a. person named would shortly raise the means necessary to pay the pressing liabilities of the company, and enable it to operate its properties, and become a going concern; that none of these assurances had been carried out; that the person making them was without means of his own, and unable to raise money from other sources, and that the appointment of the receivers was procured merely to harass the creditors and stockholders of the company, and constrain them to part with their demands, and their shares at a great sacrifice. Delay in the presentation of the second petition was excused by the suggestion that the petitioners had been advised that it would be improper and unavailing for them to renew their application until a reasonable time had elapsed for the fulfillment of the promises and assurances made to the court as above stated. This petition was denied on January 6th, A. D. 1912. On the 22nd of January, 1913, application was made in this court, for a writ of prohibition, restraining the district court from further proceeding under the order appointing the receivers, and for other relief. Eeld, that the delay intervening between the denial of the first petition and the presentation of the second was an acquiescence in the appointment of the receivers, and that such acquiescence, and the long delay succeeding, before the application of this court, were sufficient to warrant the court in refusing to enter into the merits of the controversy, by the writ of prohibition.</p> <p>3. Intervention — Petition Denied — Writ of Error — The denial of a petition for leave to intervene in a pending cause is a final judgment to which error lies.</p>

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

<p>1. Street Railway — Damage to Private Property — Under sec. 11 of art. XV of the constitution, and sec. 5420 of the Revised Statutes, those who by license of a city, construct a railroad upon the streets thereof, stand, as to any liability to make compensation for privar.o property taken or damaged, in the place of the city.</p> <p>2. Constitutional Law — Private Property Taken for Public Use ■ — A physical taking of private property for public use need not be shown in order to entitle the owner to compensation; but it must appear that some right, or interest pertaining to the property has been destroyed or impaired, before an action can be maintained. The right disturbed may be public or private, but it must be a right enjoyed in connection with the property, not shared with the public generally, a right which gives it an additional value and by the disturbance of which the property itself is damaged.</p> <p>A municipality may devote its streets to all those ordinary and necessary uses to which streets are usually subjected, and to such local uses and means of conveyance as the law-making power may authorize, for the thoroughfares of the entire city. Incidental injuries occasioned by the careful exercise of such rights granted pursuant to this power are damnum absque injuria.</p> <p>As to extraordinary or unusual uses, or unreasonable changes, or injuries to abutting property through faulty or improper construction, the rule is otherwise.</p> <p>But the proper construction of a street railway, with due regard to existing local conditions, does not so augment the servitude upon the street as to entitle the owner of property abutting thereon, to compensation.</p> <p>Nor does the mere fact that the tracks of a railway are laid so close to abutting property that vehicles may not stand between them and the sidewalk.</p> <p>The annoyances, discomfort, and injury, suffered by the abutter from the ringing of bells, and loud and discordant noises produced by the cars in passing over the tracks and around curves, are, excepting as to degree, suffered by the public generally so far as such noises and vibrations are heard and felt, and give no action.</p> <p>The abutter is, however, entitled to receive at, or remove from his premises, persons' or goods, and to have vehicles stand in front thereof upon the street, for the time reasonably necessary for this purpose, even though this may temporarily interfere with t]ie passage of others; and if this right is interfered with he may have redress therefor in a proper action.</p>

<p>1. Executors and Administrators — Sale of Lecendent’s Lands in Another State — The county court has no jurisdiction to order a sale by an administrator of lands of the decedent, situated in another state. Such order is void.</p> <p>2. -Special Bond of Administrator Selling Lands — Liability of Sureties — The bond required by statute (Rev. Stat. and Colo. Stat. Ann., sec. 7178) of an administrator directed to sell lands for the payment of the debts of the intestate, is for the protection of those interested in the estate, not'the purchaser.</p> <p>Void order for the sale of lands' situated in another state, and sale accordingly; the sureties in the bond are not responsible to the purchaser.</p>