Volume 57 — Colorado Reports

<p>1. Practice in Supreme Court — Questions not Determined by the Trial Court, will not be considered. (4)</p> <p>2. -Gross Errors — Errors to the prejudice of defendant in error will not be considered when no cross errors are signed. (4)</p> <p>3. Evidence — Competency—Action at common law to recover moneys paid to a carrier for the transportation of coal from certain stations named, to Denver, upon allegation that the rate exacted was excessive. Held, that plaintiff was entitled to show the rate charged by defendant upon coal, from the same stations to Denver, when destined to points beyond Denver, and the usual rate for the transportation of coal for substantially the same distance for which that of plaintiff was carried, without first showing that the conditions of the carriage in such instances, were similar to those attending that in question, but subject to the right of the carrier to show dissimilarity in the conditions, as affecting the weight of the evidence, because such dissimilarity was peculiarly within the knowledge of the carrier. (5, 13)</p>

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

<p>Municipal Cobpobations — Annual Revenue to he Applied to Annual Expenses — Under Rev. Stat. secs. 6631-6633, the annual revenue of eveiy municipal corporation must be applied to discharge the expenses of the corporation during the year in which it is raised, and may not be applied to any other purpose, until the expenses of the year to which the funds belong have been satisfied. (27, 28)</p> <p>Secs. 6644, 6645, 6647, are to be construed in connection with section 6631, and so construed merely require that warrants drawn on the funds of a particular year must be paid in the order of registration, out of the funds of that year applicable to the purpose. People v. Austin, 11 Colo. 134, distinguished. (28)</p>

<p>1. Water Rights — Adjudication of Priorities — Effect of Decree— A decree under the statute (Rev. Stat., §§ 3276-3306) adjudicating the priorities to the use of water settles everything necessary to complete appropriation and binds all those participating in the proceeding. (39)</p> <p>2. -Nature of the Right — Alienation—Change of Use or Place— The right to the enjoyment of water for a beneficial purpose is not confined to the particular land where the water is first applied; it may be alienated, independently of the land, and changed from place to place, with the single limitation that the change shall not injuriously affect the vested rights of others. (39, 40)</p> <p>The change must, however, receive judicial sanction by proceedings under the statute. (Rev. Stat. § 3226.) (40)</p> <p>The evidence examined and held that the transfer of a volume of water from the original point of diversion, to a point miles up the ■stream was beneficial rather than injurious to those protesting. (45,-46)</p> <p>3. -Seepage Water — Appropriation—Under Rev. Stat. § 3177, seepage water which is being wasted is the subject of appropriation. The appropriation thereof is not included in or controlled by a prior adjudication decree in the same district. (42)</p> <p>4. -Use of Stream as a Conduit — Whoever has developed water from a source extraneous to the stream may discharge it into the stream, and, using the stream as a conduit withdraw it below. (44)</p>

<p>1. .Water Rights — Change of Point of Diversion — The case ruled by the opinion in Ironstone Ditch Company v. Ashenfelter, ante. (47)</p> <p>2. Appeals — Judgment—Petition for leave to change the point of diversion of certain waters, denied by the district court. Decree reversed, with directions to determine the respective rights of the several petitioners, upon the evidence already heard, with the additional evidence which may be produced by any party, and to enter a decree permitting the change. (48)</p>

<p>1. Criminal Law — Practice—Petition for Change of Venue — Prejudice of the People — Discretion—Prejudice of the inhabitants of the county alleged as the ground of an application to change the venue (Rev. Stat., § 6965), presents a question of fact triable by the court, the result resting in discretion. The decision will not be disturbed unless an abuse of discretion appears. (51)</p> <p>2. -Prejudice of the Judge — Where, in a criminal prosecution, application is made to change the venue on the ground of prejudice in the mind of the presiding judge (Rev. stat., § 6963), such judge may hear and determine all questions as to the sufficiency of the petition, and the affidavits in support of it; hut the question whether in fact such prejudice exists is never tried. If a sufficient showing is made the accused is entitled to the change, as of right, and the court has no further jurisdiction, save to allow the change.</p> <p>To deny prejudice and overrule the application upon this ground is error. (52) ' .</p> <p>3. -........Time of Application — Notice—Waiver—The petition for a change of venue was not filed until the morning of the day appointed for the trial, several months after the information was filed, and the district attorney was not served with any prior notice thereof. Nevertheless he appeared and contested the application, raising no question as to its sufficiency. The record showing nothing to the contrary it was presumed that all objections as to these matters were waived. (52, 53)</p>

<p>1. County Court — Jurisdiction—Application by plaintiff in tbe local land office of the United States to enter land as desert lands. Application denied, and defendant permitted to enter the lands as a homestead. On appeal to the general land office this decision was vacated, and a hearing as to the right of the applicant directed. Pending this appeal the local land office permitted the defendant to make final proof, and delivered to him a patent. Held, that the county court had jurisdiction of a bill to cancel the patent. (55)</p> <p>2. Land Department — Unauthorized Action of Officials — The action of the officers of the land department of the United States, beyond the scope of their authority, is void. A patent for lands which had been previously granted, reserved from sale, or appropriated may be annulled by the courts; otherwise the injured party would be without redress. (55)</p>

<p>1. Statutes — Construction—A statute is to be interpreted by a consideration of tbe whole and every part thereof. The occasion and necessity of the enactment, and the mischief to be remedied, are to be borne in mind; it is to be presumed that the legislature intended what is reasonable and just, and not what is absurd and oppressive. And it is to be remembered that what is apparently within the letter of the act, is not within the statute unless evidently intended. (60)</p> <p>2. Appeal Bond — Appeal Dismissed — Liability of Surety — The power of the supreme court to suspend execution of a judgment by awarding a supersedeas is not limited by the provisions of the code, § 422. (64)</p> <p>An appeal from a judgment of the district court had been dismissed. More than thirty days thereafter, on error brought to the same judgment, this court awarded a supersedeas, and the bond required by the statute was given. Later, on application of the creditor, the district court, acting under § 422 of the code, entered judgment on the appeal bond, against the surety therein, for the full amount of the judgment and interest. Considering tlie absurdity and injustice of a construction of the code provision which would impose absolute liability upon the surety, when this court might,'in the exercise of its unquestioned jurisdiction, vacate the judgment which was the sole ground of the creditor’s right, and the surety’s liability, held, that the judgment of the district court upon the appeal bond was error. (62, 63)</p>

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

<p>Error to Denver District Court. — Hon. John I. Mullens, Judge.</p>

<p>1. Ceetiobari — The Inquiry, Is limited to whether the court below exceeded its jurisdiction or greatly abused its discretion. (76)</p> <p>2. Police Power — Extent of the Power. The legislature may enact' regulations for the examination and registration of those who would practice medicine. The only limit to the power is that the regulations prescribed shall be reasonable, and of this the courts must judge. (79)</p> <p>The legislature has no power, under the guise of a police regulation to arbitrarily invade the personal rights and liberties of the individual citizen. (79)</p> <p>Nor to confer upon a board of medical examiners authority to deny to a physician the right to advertise his business. (80)</p> <p>3. State Board oe Medical Examiners — Powers of the Board. The statute authorizing the revocation of a physician’s license for publishing an advertisement relative to any disease of the sexual organs (Rev. Stat. § 6068) is void for uncertainty, and in violation of the 14th amendment to the Federal Constitution and § 3 of our Bill of Rights. (86)</p>

<p>1. Pleading — Complaint Construed. Action against a railway company under Rey. Stat. § 2056, the complaint alleging that the train whereon deceased was being carried “was by defendant and its officers,, agents and servants so negligently, carelessly and unskillfully operated that it collided with another train.” Held that the charge of negligence against the company itself was mere surplusage, not impairing the effect of the allegation of negligence by the officers, agents and servants; that the word “operated,” included everything contained in the expressions of the statute, and that everything necessary to maintain the action under the statute was .sufficiently stated. (90, 94)</p> <p>. 2. Death — Action For — Statute Construed. The purpose of section 2056 of the Revised Statutes is to protect human life against the fatal consequences of negligence, unskillfulness, or criminal intent, on the part of any officer, agent or servant of any corporation or natural person, in operating any locomotive, car, or train of cars.</p> <p>The statute is purely penal. The amount of the recovery thereunder depends solely upon the degree of culpability of the defendant. The age or youth, strength or infirmity, capacity or incapacity of the deceased are without effect upon this question. (96)</p> <p>And the right of recovery does not depend, in the least, upon whether, if death had not ensued the injured person could have maintained an action for the injury. (97)</p> <p>Under Rev. Stat. §§ 2057, 2058, the amount of the recovery for a wrong resulting in the death of a human, being is to he determined by the prospective accumulations of the deceased, having reference to his age, occupation, habits, health, and earning capacity. 96, 97)</p> <p>3. -Defenses to the Action — Free Pass. In an action under Rev. Stat. §2056 that the deceased was riding upon a free pass, stipulating that the passenger “assumes all risks of accident and * * * the company shall not be liable, under any circumstances, whether of negligence by its agents or others” is no defense to the action. (106)</p> <p>4. -Evidence, as to the habits, character, age, health and earning capacity of the deceased, or his contribution to his parents is inadmissible. Its admission is fatal error because it is impossible to shy how far it may have affected the award of the jury. (105)</p>

<p>County — Not Liable for Office Expenses of Assistant District Attorney. The act of 1907 (Laws 1907 c. 172) contemplates the maintenance of but one office of the district attorney, in each county of his district, and the district attorney himself, is authorized to contract, and recover from the county, the attendant necessary expenses. (108) No statute imposes upon the assistant district attorney the duty to maintain an office, or makes the county liable for the expenses thereof. (108)</p>

<p>Pleadings — Prayer—Execution Against the Body, is not to be awarded upon judgment by default, unless expressly demanded in tbe complaint, even though the complaint states a cause of action entitling plaintiff to the process if it had been prayed (Rev. Stat. § 3024, Rev. Code § 186.) (112)</p>

<p>Error to Gilpin District Court. — Hon. Charles McCall, Judge. o</p>

<p>1. Evidence — Reports of Supreme Court, published by the authority and command of the law, are competent evidence of the determinations of that court in a particular cause, where, in another cause, such determination is in issue. (121, 122)</p> <p>2. Attobney and Client — Contracts Between, are construed most favorably to the interest of the client, and the attorney is held to strict compliance with his undertaking. (122)</p> <p>3. -Contract Construed. The contract between client and attorney provided that the attorney should be entitled to a certain fee if the supreme court should “uphold the validity of” a certain issue of county bonds. In a cause conducted by the attorney, the same for which he was employed, the validity of the bonds was affirmed by the supreme court, against all objections thereto made in that litigation. The fact that other objections were afterwards raised by the client, constitutes no defense to an action for the attorney’s fee; nor does the raising of objections by others, no attempt being made to show the facts upon which these objections were founded. (123)</p> <p>4. Evidence — 'Witness—Competency. The defendant is not a competent witness in his own behalf as to facts occurring before death where the plaintiff sues as executrix. (123)</p>

<p>1. Pleading — Counterclaim,, as used In § 63 of the Revised Code, is a broader term than set-off or recoupment, and includes both of them. (126)</p> <p>The State Bank assigned to the plaintiff, after maturity, a promissory note of defendant. The bank was then insolvent, and on the following day closed its doors. Defendant, at the time, had on deposit in the bank a sum in excess of the amount due upon his note. Held that in an action by the plaintiff upon the note defendant was entitled to set off the amount of the note.</p> <p>The common law rule that the indorsee of an overdue promissory note takes it exempt of all equities which do not attach to or Inhere in the note itself, at the time of the transfer, is so modified by the code that all equities existing between the maker and payee, at the time of the assignment, or notice thereof, avail to the maker, in an action by the assignee. (128, 129)</p> <p>2. Demand — ¡Wihen Necessary. The account of a depositor in an insolvent bank is due without demand. (130)</p> <p>3. Pkomissoby Note — Payable Without Defalcation. The words are mere surplusage; they have not the effect to waive set-offs. (131)</p> <p>4. New Tkial — Motion—Assignment of Grounds. All errors relied upon as ground of a motion for a new trial should be specifically set forth. Any error not so presented should he regarded as waived (130)</p>

<p>1. Divobce — Complaint. The wife’s complaint for divorce alleged that she was living apart from her husband, and, besides other wrongs and neglect, that on various occasions, the husband, without cause or excuse, had left her, and absented himself from the state for months, making no provision for the support of his family, and that plaintiff had been compelled to earn money by her own labor, for the support of herself and their child. Reid to sufficiently show that the wife was justified in living separate and apart from the husband. (132)</p> <p>Under Rev. Stat. § 2112 the wife’s complaint may allege non-support by the husband, he being in good bodily health, “for more than one year”, even though this may require the husband to justify or excuse his conduct for any number of years. (132)</p> <p>2. Pleading — Supplemental. A supplemental cross complaint filed without leave may be stricken from the files. (134)</p> <p>3. -Amendment — Supplemental Pleading. The amendment of a pleading rests in the discretion of the trial court, and its action will not be reviewed unless an abuse of the discretion appears.</p> <p>An application for leave to file a supplemental cross complaint, not supported by affidavit is properly refused. (Code § SO.) (135)</p> <p>4. Continuance — Diligence Required. The action of the trial court in denying an application for a continuance will not be reviewed unless an abuse of discretion is shown.</p> <p>The application, grounded upon the absence of a witness, was filed upon the day appointed for trial. The cause had then been at issue for more than four months. The affidavit in support of the motion stated that defendant had for two weeks been endeavoring to ascertain the whereabouts of the witness, but failed to state what he had done in or towards this inquiry; and gave no excuse for the failure to institute the search at an earlier date. It averred that plaintiff had received a letter, stating that the witness was at one of three places named, but defendant failed to produce the letter, excuse its non-production, or give the name of the writer. Reid that there was no abuse of discretion in denying the application. (135, 136)</p> <p>5. Bile of Exceptions — 'When Necessary. Where the evidence is not presented the refusal of an instruction will not be considered. (136)</p> <p>6. Instruction. — Objections To, not presented at the time the change is given cannot be assigned for error. (136)</p>

<p>1. Constitutional Law — Amendment of the Constitution — Judicial Notice. The facts upon which depend the question whether an amendment proposed to the constitution has received the approval of the people will be judicially noticed. (143)</p> <p>2. Evidence — Judicial Notice, is taken of the facts upon which depends the question as to the adoption by the people of a proposed amendment to the constitution. And the court will resort to all sources of information which may afford satisfactory evidence upon the question. (143, 144)</p> <p>The published volumes of the general statutes of 1883, and Mills Statutes, accepted as prima facie evidence of the constitution, as therein appearing, nothwithstanding the manifest defects in the certificate of the secretary of state, prefixed to the first, and in spite of the note to § 29 of art. VI found in the second.</p> <p>The court having received information from the county clerks of many of the counties, that, as shown by the records and memorials contained in their respective offices, the amendment proposed by c. XVII of Gen. Laws 1877,' to § 29 of art. VI, was in fact submitted to the people at the succeeding general election, and being convinced beyond doubt from these sources of information, and the recognition of the amendment in the early decisions of this court, when the matter must have been of common knowledge (5 Colo. 455, 457; id 487, 490; 6 Colo. 92, 93; 11 Colo. 373, 376) that in fact the amendment so proposed received the popular sanction, declared it to be part of the fundamental law, though no evidence whatever of its submission or adoption was found in the office of the secretary of state. (142, 143)</p> <p>3. -Stipulation of the Parties as to the Law, that a supposed enactment is invalid, or their agreement as to facts which render it so, will not be accepted. (144)</p> <p>4. -Official Certificate. The certificate of the secretary of state to the published volume of the Revised Statutes is not affected by the statement contained in the note at the foot of § 29 of art. VI of the constitution. The extent of his official duty was to place the constitution in the volume, and it was not within his function to cast doubt upon his own work. (143)</p> <p>5. Statute — Evidence of Enactment — Burden of Proof. The court has invariably noticed the documents evidencing action of the general assembly, subscribed by the proper officials, and found in the office of the secretary of state. They are accepted as prima facie evidence of the law, and whoever asserts the contrary has the burden of proof. (145)</p>

<p>1. Elections — Ballot—How the Voter Shall Express His Choice. The voter must substantially observe the requirements of the statute. (152)</p> <p>2. -Ascertaining the Intention of the Voter. Where the voter writes in the blank above the list of nominations, the name of a particular party, he indicates an intention to vote for all the candidates of that party named upon the ballot, unless, in the way provided by the statute, he manifests a different intention, i. e. by inserting an X opposite the name of an opposing candidate, or if there are two or more candidates for the same office, by drawing a line through the name of those, or the one, for whom he does not desire to vote. (153)</p> <p>The contestor was a candidate upon the ticket of the Progressive party. Several voters wrote at the top of the ballot the name of this party, as well as the name of another party which had made no nomination for tlie office for which the contestar was a candidate, and none of these ballots bore any X opposite or near to the name of any candidate for that office. Held that the insertion of the names of the other parties, in addition to the Progressive party, did not tend to contradict or neutralize the purpose of the voter to cast his ballot for contestar and that the ballots must be counted accordingly. (153)</p>

<p>Elections — Ballot—How the Voter Shall Express his Intention. Under §§ 2235, 2259 of the Revised Statutes and § 1 of the Headless Ballot act (Laws 1913, p. 685) the voter is required to express his choice by making an X in the space left for the purpose, opposite the name of the candidate for whom he desires to vote. (158)</p> <p>There being three candidates for the office in question, sundry voters wrote in the spaces left for this purpose, under the word indicating the office, the names of three persons, among them the name of the contestor. No cross was set opposite the contestor’s name upon any of these ballots. Held they were not to be counted for contestor. Baldwin v. Wade> 50 Colo. 107, distinguished. (159)</p>

<p>Supreme Court — Error to Court of Appeals — Jurisdiction. Judgment in the district court for $5,000 affirmed by the court of appeals. Interest accrued thereon subsequent to the original recovery is but an incident of the judgment, and not part of it. Its accrual does not have the effect to confer jurisdiction upon this court to review the judgment of the court of appeals. (164, 165)</p>

<p>Supreme Court — Jurisdiction—Declaring Attorney’s Lien. The parties to a writ of error having stipulated to a discontinuance thereof the court is without jurisdiction to declare a lien upon the properties recovered in favor of the attorneys of the successful party, for securing the fees to which they may he entitled pursuant to contract with the client. (168)</p>

<p>1. Municipal Corpobations — Contracts—Construction. What is received by a city for the grant of a franchise is to be considered in interpreting the provisions thereof imposing duties upon the grantee. (172)</p> <p>2. -Validity. A city is not to be charged by implication but only upon express contract. (188)</p> <p>3. -Construed. The city, by ordinance, granted to Jackson the right and privilege of erecting and operating within its limits, a plant for the production and distribution of the electrical current, the right and privilege to construct, maintain and operate dams, ditches, flumes, pipe-lines, and conduits, for the transmission of such current, and the right to divert and use, under certain conditions, for the generation of electricity, the waters of the streams, pipes and conduits of the city. Jackson, on his part, among other things, agreed to complete by a day named a certain tunnel for conveying water to the city, and, by section 9 of the ordinance, to furnish to the city “such arc lights * * * as may be required by such city for lighting its streets”, at a specified rate; also to furnish to the city, free of cost, electricity for lighting the buildings of the city, and “such electrical power * * * as the city may specify * * * not to exceed fifty horse-power”; and to at all times during the term of the grant “furnish to the city” on a certain notice and demand “such other power as may be required for municipal purposes at the same price paid by the most favored customer”. Held that the city was entitled to demand from the defendant, successor in interest of Jackson, and as against the intervenor, the most favored-customer of defendant, electric power to the volume of 10,000 kilowat hours per day, for the purpose of lighting the strets, parks, buildings and other public places of the city, and the residences and places of business of its inhabitants, at the same rate and price paid by the intervenor; that such purposes were municipal in character, within the meaning of the ordinance, and that such demand was not in contravention of any right or privilege granted to Jackson by the ordinance, or any agreement of the city therein contained; that the most favored customer having notice of the terms of the ordinance, at the time of entering into its contract with the defendant, was affected by its provisions; that the ordinance contained no express agreement of the city to take from Jackson any electrical current whatsoever for lighting its streets or public places, and that such agreement was not to be Implied; that the city was not required, to take, or agree to take, the same minimum annual volume of the electrical current as contracted for by the intevenor; that the price to be paid by the city was the same as stipulated for by the intervenor, and to be diminished or increased according to the schedule set down in the intervenor’s contract, according to the monthly consumption; and finally that the defendant was not entitled to contend that no vote of the electors of the city had been had, authorizing the construction and maintenance of an electric lighting plant. (174, 193)</p>

<p>1. 'Tax Deed — In statutory form, prima facie evidence. A tax deed which recites that the sale was made in substantial conformity with the requirements of the statute is prima facie evidence of everything of which the statute declares that it shall be evidence. (197)</p> <p>2. -Deed, Construed. A tax deed recited that the treasurer did “on the 15th day of October * * * at the sale begun and publicly held on the 14th day of October * * * expose to public sale at &c. * :|s * in substantial conformity with the requirements of the statute * * * the real property above described” and that “at the sale so held as aforesaid * * * no bids were offered &c. * * * and the treasurer having become satisfied that no sale of said property could be had” the same was stricken off to the county. Held that in view of the recitation that the statute was substantially observed it was not to be inferred that the lands were not offered on the 14th of October; that the phrase “at the sale so held as aforesaid” was not to be taken as referring only to what occurred on the day on which the lands were sold; that the statute does not require that the deed should disclose the day on which the land was first offered, and no presumption is to be indulged in contravention of the express recitals of the instrument, and the provisions of the statute. Held, further that the deed did not indicate that the county was a competitive bidder. (200, 203)</p> <p>3. Cases Ovekkuled, distinguished or explained. The rule announced in Charlton v. Toomey, 7 Col. Ap. 304, that the recitals of a treasurer’s deed of land sold for taxes must affirmatively show that every preliminary step required to divest the title was regularly taken as prescribed by law, must be read in connection with the statute declaring the effect of the deed. The statute is not to be ignored. (197)</p> <p>The opinion in Bryant v. Miller 48 Colo. 192, so far as it assumes that, where at a tax sale land was stricken off to the county on the second day of the sale, the deed must recite that the lands were offered on the first day, and again offered on the second day; so far as it assumes that in such case, a deed in the statutory form discloses that the lands were not offered upon the first day; and so far as it assumes that the deed must set forth the different dates upon which the lands were offered, and when the county is the purchaser must disclose when the lands were first offered, and the day of each subsequent offer, is overruled. (203, 204)</p> <p>4. Pbeoedents. — Opinion Often Cited, will nevertheless be overruled if, on more mature consideration, found to announce heretical doctrine, in the absence of special reasons for applying the maxim stare decisis. (204)</p>

<p>1. Appeals — Questions not Presented Below. Where in condemnation proceedings no objection is made below to the damages awarded in respect of land taken, this court will not, on appeal, review such award. (208)</p> <p>2. Constitutional Law — Eminent Domain. The provision of § 6592 of the Revised Statutes that in the opening of an alley the benefits shall be paid by the owners of property in the block abutting on the alley, is not in violation of § 15, art. II of the constitution. (215)</p> <p>3. Eminent Domain — Statute Construed. It is not a necessary deduction from the proviso to § 6592 Rev. Stat. that the benefits to each owner in the block through which an alley is opened will be identical with the damages assessed to him for so much of his lot as is taken. That depends upon whether they are in fact the same, when ascertained in the manner prescribed by the statute. (209)</p> <p>It is not the purpose of the statute that the owners of the lots abutting upon the alley should bear the cost of the improvement in equal proportions; each of such property owners must bear some portion of the burden, but the ascertainment is not to be made upon the frontage merely, but according to the actual benefit occasioned to the property, as nearly as this can be ascertained. (215, 216)</p> <p>Where the commissioners assessed no benefits against the corner lots, it was held that their report was a departure from the statute, and that the court was justified in a modification of the award in this respect. (211)</p> <p>4. -Powers of the Court. §§ 6592-6597 of the Revised Statutes are to be taken together. Thus construed they confer upon the District Court power to modify, recast, or annul, any assessment, and do everything necessary to make a true and just appraisement, according to the principles of the statute. (210)</p> <p>Where the boundaries of- the district to which the assessment is limited, as by the proviso to Rev. Stat. § 6592, the court may, if the report departs from the statute, amend it in this respect, or may refer it to the same or another commission. (210)</p> <p>So where it appears that the commissioners acted under a misapprehension of the law. (211)</p> <p>5. -Objections to Report — Effect. Proceedings for the opening of an alley. The commissioners omitted to assess benefits against the corner lots, though abutting upon the alley. The owners of these lots made no objection to the report. Held that objections made by the holders of other lots in the blocfe entitled the court to revise and correct the report in this respect. (212)</p>

<p>1. Quieting Title — Water Rights. In this jurisdiction a bill to quiet title to a water right, and enjoin interference therewith will be entertained. Vague and uncertain provisions of the contract under which the plaintiff claims are no bar to the relief. (222)</p> <p>2. Contracts — Construction. The entire instrument is to be considered, and effect given to every word thereof, if possible. (223)</p> <p>If conflict in its provisions appears the circumstances surrounding the parties and attending the execution of the instrument, and the construction placed upon it by the parties, in the performance of it, before controversy arose, may be inquired into. (223)</p> <p>3. -Effect of Statutory Provision — Statute Construed. The provision of Rev. Stat. § 7026 that in the sale of water “every inch shall be considered equal to an inch square under a five inch pressure” &c., is not controlling, In the construction of a contract for the enlargement of a ditch, and prescribing a volume of water to which the owners, and those bearing the expense of the enlargement, shall respectively be entitled, unless this was the intention of the parties. (230)</p> <p>4. Water Rights — Measurement of Water — Inches. The cases as to the meaning of the word “inch”, in the measurement of water, examined, and the indefiniteness of the term, disclosed. (226, 227)</p> <p>5. --Changing Point of Diversion. Leave to change the point of diversion can be obtained only by pursuing the course prescribed by the statute (Rev. Stat. §§ 3226-3229.) (231)</p>

<p>Pleadings — Complaint, praying an injunction to restrain the diversion of water to the prejudice of plaintiff, held sufficient.</p>

<p>Insurance — Application for Policy, made after the issuance of the policy, and without any agreement that it shall be made, is no part of the contract. The case ruled by the judgment in Connecticut Company v. Colorado &c. Co., 50 Colo. 524. (236)</p>

<p>1. Lunatics — Conveyances Toy. The great weight of authority is that the deeds of persons in fact insane, but not so adjudged are oidable and not valid. (243)</p> <p>When such a conveyance comes in question the inquiry should not be .limited to the mental condition of the donor, but the circumstances attending the transaction and the conditions under which the deed was executed should be investigated. If upon a valid consideration, without fraud upon or undue advantage taken of the grant- or’s condition, if the transaction was fair and for the interest of the grantor, it should be sustained.</p> <p>To exclude evidence of these circumstances and conditions, is error. (243, 244)</p> <p>2. -Who-May Assail the Conveyance. The deed of a lunatic is not open to assault by anyone and everyone. The heir at law may contest its validity if he has not in some way precluded himself from taking such action. (244)</p> <p>3. Estoppel — By Conduct. When one, with actual knowledge of the facts, induces another, by words or conduct, to believe that he approves or acquiesces in a transaction, and the other relying upon the assurance, alters his position, the former is estopped from repudiating the transaction, to the other’s prejudice.</p> <p>The son, knowing that his mother, aged, infirm, and mentally unbalanced, contemplates the conveyance of real estate to another, upon the engagement .of the other to support her during her natural life, approves the arrangement, and expressly consents thereto. He will not, after the death of the mother, be heard to assail such conveyance upon the ground of her méntal ineompetency.</p> <p>Nor will his wife, who, having likewise assented to the transaction with full knowledge, has accepted the voluntary conveyance of the husband. (244, 245)</p>

<p>1. Contracts — To make a Particular Will or Bequest, if upon consideration and without surprise, imposition or fraud, is a valid contract, and may be specifically enforced in - equity. That the beneficiary in the contract is, by his or her parent submitted to the custody and nurture of the p.romissor, is a sufficient consideration. No valuation can be placed upon the society, companionship and filial obedience of a child towards its foster parent, or the sacrifice which the parent makes, in the surrender of his child; therefore the courts will not inquire as to the adequacy of the consideration where the promissor has received and enjoyed that, to which, under the contract, he became entitled. (261)</p> <p>Plaintiff’s father entered into a written agreement with Macky, when plaintiff was only seven years of age, by which he committed plaintiff to the care and nurture of Macky and his wife. The agreement provided that the child should become a member of the family of .Macky, subject to his discipline and that of his wife, until her majority, that she should receive a liberal education, and that Macky would by his will devise to the child a portion of his estate, equal in the minimum to one third of the value of the whole thereof. At the time of this agreement the child’s mother was dead, and the father and Macky were intimate friends. The child remained in the family of Macky, performing the duties of a child, until after her majority. The court declined to hold the contract voidable, for inadequacy of consideration, want of certainty, mutuality, or equity. (264)</p> <p>2. Limitations — Statute of Non-Claim. A bill for specific performance of a contract to provide by will for a person named, is not within the provisions of Rev. Stat. § 7206. The phrase “all demands” in the first clause of the section includes only the demands of widows, orphans and creditors. Demands of this character must be satisfied in advance of.distribution. The right of the beneficiary in such a contract as supposed is an equity in what remains after all such demands as mentioned in the statute are adjusted and paid, and can be asserted only in a court of original and general equitable jurisdiction. (255)</p> <p>3. District Court — Jurisdiction. The district court has jurisdiction of a bill to enforce the specific performance of an agreement to make provision by will for a person named, instituted by the beneficiary, against the executor, and legatees who have received allowances out of the estate to the prejudice of the beneficiary in such contract. Sections 7141-7146, 7254, of the Revised Statutes have not the effect to confer exclusive jurisdiction of such an action upon the County Court. (257, 258)</p> <p>4. Specific Performance — Contract—Certainty. _ Only reasonable certainty is required, considering the subject matter and purpose of the contract, the situation and relation of the parties, and the attending circumstances. (265)</p> <p>Where the party chargeable under contract received the benefits thereof, the court does not regard with favor objections grounded upon the incompleteness or uncertainty of the contract.</p> <p>Where the chief purpose of a contract is manifest, and can be enforced, relief will not be refused merely because there is an impossibility to carry out some collateral or subsidiary agreement, according to the precise terms. (266, 267)</p> <p>5. -Parties. The bill being brought to enforce a contract to make provision by will for the plaintiff the court said that it would have been proper to have joined as defendant, all the legatees named in the will; but the residuary legatees to whom the great bulk of the estate was devised, being joined, it was said that to bring in the others, would in nowise benefit the executor. His demurrer upon this ground was therefore overruled. (272)</p> <p>6. -Judgment. Relief is afforded by declaring the legatees named in the will, trustees for the plaintiff, to the extent of her right. (269)</p> <p>7. Parties — Bringing in New Parties. The provision of the code (§ 16) requiring new parties to he brought in has reference only to indispensable parties. (273)</p> <p>8. Appeal and Erbor — Questions Not Presented Below, will not tie considered. (272)</p>

<p>1. Contract — Assent—Evidence. Plaintiff had negotiated the purchase, by a third party, of lands of defendant. By the terms of his agreement with the defendant he was to receive $20,000 from the purchase money. The purchaser having defaulted in sundry payments, plaintiff, at his instance, solicited from defendant an extension of time to the purchaser. Defendant advised plaintiff that if he should grant the extension he would allow him but $10,000 out of the proceeds. Plaintiff strenuously objected, but declared that he was powerless and would be compelled to submit. Defendant finally granted the extension, the purchase was completed, and the purchase money paid in installments, upon each of which plaintiff receipted for a sum equal to his share of the payment, on the basis that his total interest was $10,000. Held to fully establish plaintiff’s assent to the abatement of his interest in the purchase money; that the transaction was in effect a substitution by all parties of a new agreement for the old one. The new contract was a sufficient consideration for the abrogation of the old one. Held further that the original agreement by which plaintiff was to receive $20,000 from the purchase -money did not create any fiduciary relation between plaintiff and defendant; that in the new contract each was dealing for himself, and defendant was under no disability arising from the previous agreement. (278, 280)</p> <p>2. --Consideration. A promise without consideration to release one from a fixed liability is nudum pactum. (278)</p> <p>3. Protest — Effect Upon Subsequent Agreement. A protest against a proposed arrangement, followed by a full assent thereto, is without effect. (279)</p> <p>i. Vendor and Vendee — Default in Payments — Effect. Where an agreement for the sale of lands provides that upon the purchaser’s default to make the stipulated payments, at the dates appointed, the default shall, at the vendor’s option annul the contract, the vendor is under no obligation to convey, after such default. (280)</p>

<p>1. Judgment — Final—Appeal. Action by sub-contractors to enforce a mechanic’s lien. An irrigation district, and the Empire Construction Company, as owners, and one Crawford, as original contractor, and sundry other sub-contractors and material men, were named as defendants. Crawford by cross-complaint prayed judgment against the Empire Company, and demanded a lien. The Empire Company by a cross-complaint to that of Crawford, prayed judgment against Crawford. A decree was entered denying any lien against the works of the Irrigation District, but declaring that Crawford was liable to the Empire Construction Company in a sum mentioned, that these moneys were subject to a lien in favor of the sub-contractors. The claims of certain sub-contractors were established, the construction company was directed to pay into court the moneys found to be due and owing by it to Crawford, and directions were given for the division of a portion thereof, after payment of the costs, among certain of the lien claimants. As to other lien claimants the cause was continued. Judgment was entered in favor of the construction company and against Crawford, and appeal allowed therefrom. More than a year after the entry of this decree, and more than six months after the adjournment of the term, Crawford filed a motion to vacate the judgment against him, upon the ground, among others, that no final judgment was given from which an appeal could have been taken. Held that under § 241 of the code made applicable to proceedings for the enforcement of a mechanic’s lien, by Rev. Stat. § 4044, the separate controversy between the construction company and Crawford, all the parties to which were then before the court, was a proper subject of adjudication, and that the judgment recovered by the construction company was a final judgment, notwithstanding the continuance of the cause as to the other parties, and that an appeal lay therefrom. (287, 289)</p> <p>2. -Vacating — Lapse of Term. As a general rule, in the absence of a statute to the contrary, the courts have no control of their judgments after the lapse of the term at which the judgment is rendered, except to correct clerical errors, and to afford relief where fraud or the absence of jurisdiction is alleged. (290)</p> <p>3. ,-Statute Construed. Sections 81 and 231 of the code contain the only statutory authority for granting relief against a judgment after the expiration of the term at which it is rendered.</p> <p>Where the jurisdiction is unquestioned, and no fraud in obtaining the judgment is alleged, the application under § 81 must be made with reasonable diligence, and in any event within six months after the adjournment of the term. Thereafter, except for the correction of clerical errors, the court is without power to interfere, and any further action is a nullity. (290, 291)</p> <p>4. Pleading — Waiver. Application under § 81 of the code to vacate a judgment, presented after the lapse of more than six months from the adjournment of the term. The absence of jurisdiction in the court is not waived, either by a motion to strike off the application, or by a demurrer to the answer of the applicant, filed under leave granted pursuant to his application, nor by answering to the merits after the overruling of the demurrer. (291)</p>

<p>1. Appeal and Error — Harmless Error. The striking from a pleading of matter which may he proven under other allegations is harmless. (297)</p> <p>2. Evidence — Competency. Action to vacate a conveyance of lands, made upon the consideration that the grantee shall support the grantor. Evidence that the grantor executed the deed of her own volition, that her subsequent dissatisfaction was produced by the efforts of other relatives, and evidence tending to show performance by defendant of his promises, is competent, and its exclusion error. (297)</p> <p>3. Pleading — Certainty. Every litigation should be founded upon some definite theory, and the complaint should state the facts essential to support such theory. (297)</p> <p>4. -Pleading Fraud. The facts constituting the fraud must be alleged, in order that the court may determine the character of the transaction. A general allegation of fraud is a mere conclusion. (297)</p> <p>5. Support — Deed Upon Consideration Of. Failure to perform the stipulation for support is sufficient ground to vacate the deed, without any showing of fraud or undue influence in procuring it. 1(298)</p> <p>6. -Measure of Proof Required. To vacate a deed duly executed, clear and convincing evidence is required. The facts relied upon must be established beyond reasonable doubt. (298)</p> <p>7. Attorney — Undue Influence upon the Court. In vacating a decree of the County Court it was noticed that the presiding judge of that court was not a person learned in the law; that the plaintiff’s attorney was acting as clerk of the court at the time of the preparation of the voluntary deed which was in question, took the plaintiff’s acknowledgment thereof, and probably framed it; and that he did not resign his position, until six days before the trial. The court expressed the fear that the attorney may have exercised an undue influence upon the judge. (299)</p>

<p>1. Fkatidtilent Conveyances — Intent. A merchant’s transfer of his stock of merchandise to a trustee, for its full value, and in good faith, for the protection of all his creditors, is unassailable. Such a sale is not within Rev. Stat. § 2678. (301)</p> <p>2. -Bulls Bale. The transfer of the stock of a merchant, not in the ordinary course of trade, is only prima facie evidence of a fraudulent purpose. (301)</p>

<p>Water Rights — Unlawful Diversion and Storage. The diversion and storage by an irrigating company of water to the use of which another is entitled, or the retention of it, after it is wrongfully impounded by another, will be relieved against in equity. (303)</p>

<p>X. Pleadings — Reply. A reply which directs itself only to “all new matter in said answer contained”, is vulnerable to a motion to make more specific; but if not so assailed it suffices to put in issue tlie affirmative averments of the answer. (313)</p> <p>2. Railroad Company — Liable for Negligence of Lessee. A railroad company which admits another to the joint use of its tracks is liable for the negligence of the one to which such permission is extended, in the operation of its trains thereon. (313, 314)</p> <p>3. Receiver — Negligence Not Chargeable to the Property Owner. In the absence of a statute to the contrary a railway company is not liable for the negligence of a receiver in charge of its property. (314)</p> <p>4. -Purchaser of Railroad Liable for ' Receiver’s Negligence. Mortgage Foreclosure Sale of a Railroad, the purchaser taking “subject to the liabilities of a receiver incurred in operating” the mortgaged properties, is liable for the negligence of the receiver in permitting a car containing dynamite to be unnecessarily retained upon the tracks, in the vicinity of private dwellings; in failing to in any way advise the public of the explosives, even after a fire had broken out in such proximity thereto that an explosion might reasonably be anticipated; and in failing to remove the car, while, after the fire had broken out, such removal was practicable; and this, even though the liability of the receiver has never been judicially established. (315, 318)</p> <p>5. Negligence — Common Carrier Transporting Explosives. A common carrier may lawfully carry dynamite and like explosives, but may not expose persons to danger from an explosion, where this is not necessary for the proper performance of his duty as a carrier. A car containing dynamite, and loaded with other merchandise in such manner that the dynamite could not be removed without unloading the car, was unnecessarily left standing upon the tracks of a railway in the vicinity of occupied dwellings. It was not placarded with notice of its dan'gerous contents. A fire breaking out in the vicinity, those engaged in attempting to extinguish it were not warned of the presence of the explosives, nor Was any attempt made to remove the car, though a half hour intervened before any explosion occurred. Held, the receiver in charge of the railway might by the jury be declared negligent. (316)</p> <p>6. —Pleading. The negligent leaving of a railway car containing high explosives in large quantities where human life may be endangered, is a nuisance. In an action for the death of one who, without fault on his part, was killed by the explosion of the contents of the car, it is not necessary to allege or prove the immediate cause of the explosion. (318)</p> <p>7. -Negligence of Defendant Concurring with Wrongful Act of a Stranger. Where injury occurs by the negligence of the receiver of a railway, and the wrongful act of another, for whose conduct neither the receiver nor the injured person is liable, the receiver is' chargeable if the injury would not have occurred but for his negligence. (318)</p> <p>8. Evidence — Competency. Action for negligence in unnecesi sarily detaining at a railway station a car containing dynamite, consigned to another station; in not placarding the car with notice of ita contents; not attempting to remove it after a fire had broken out in the vicinity; and in not notifying those engaged in attempting to suppress the fire of the dangerous contents of the car. An ordinance of the city regulating the storage of explosives is not admissible. (317)</p> <p>9. Parties — Defendants—Joint Torts. Certain railway tracks of the Colorado & Southern Company were operated jointly by that company and the receiver of the Colorado & Northwestern Company. By the negligence of the receiver plaintiff’s intestate came to his death. The title of the Colorado & Northwestern Company was afterwards purchased hy the D. B. & W. Co. at a sale made pursuant to the decree in a foreclosure suit in which the receiver was appointed, “subject to the liabilities of the receiver incurred in operating” etc. Held that the Colorado & Southern Company having admitted the receiver to a joint occupation of the traclts, with itself, it was liable for his neglect; that the D. B. & W. Co. was liable, hy the terms of its purchase; that each being liable for the same event, they were properly united, and there was no misjoinder either of parties or causes of action. (318)</p> <p>10. -Non-Suit as to One Defendant — Effect. Several joined as defendants in an action for a tort. Non-suit as to one does not determine the cause as to the others. (319)</p>

<p>Appeal from Saguache District Court. — Hon. Chas. C. Holbrook, Judge.</p>

<p>1. Municipal Corporations — Powers. Nothing in Rev. Stat. §§ 5036, or 6525 cl. 10, 54, confers power upon a city to compel the owner of a lot on which is standing an unused privy, with no other building or structure, to connect such privy with the public sewer. (331, 332)</p> <p>2. -Ordinance — Prosecution.- An ordinance provided that “Every privy belonging to any resident etc., located upon any lot abutting upon or near any street or alley through which is a sanitary sewer shall be connected by the owner etc., with such sewer.” In a prosecution to recover the penalty prescribed for a violation of this ordinance the court will not consider the regulations of the Board of Health, nor those for the 'abatement of nuisances. (332)</p>

<p>1. Evidence — Discrediting Witness. A witness held, discredited by his criminal conduct in the fraudulent alteration of a deed. (336)</p> <p>2. Contract — Oral—Validity. One who, upon a consideration promised, agrees by word of mouth to purchase land for another, advancing the purchase money as a loan to his principal, is bound by the engagement. (337)</p> <p>If he take title in his own name, or in the name of a third person for his own use, equity will compel a conveyance to the principal.</p> <p>That at the time of entering into the engagement he is negotiating for the land upon his own account and behalf, is immaterial. (336)</p> <p>3. Statute of Frauds — Resulting Trust. In such case a resulting trust is created by operation of law. Such trusts are excepted from the statute of frauds. Rev. Stat. §§ 2660, 2661. (337)</p> <p>4. -Evidence. The facts from which the law raises a resulting trust in lands may be proven by parol. (338)</p> <p>5. Principal and Agent — Duties and Disabilities of Agent. One employed to purchase lands for another is not at liberty to take title thereto in his own name, or in the name of another for his use. (339)</p>

<p>Error to Boulder District Court. — Hon. Neil E. Graham;, Judge.</p>

<p>1. Conveyances — Description, '"Where there, are in a conveyance of lands repugnant descriptions, that which in the light of the attendant circumstances most accords with the intention of the parties must be accepted. (350)</p> <p>"When a particular description- is plainly false it should be rejected, and if enough remains to locate the land intended' to be conveyed, the deed is effective. (350)</p> <p>2. -Area — Metes ana Bounds. Lots 21 and 28, in a subdivision were separated by a road 40 feet wide. The proprietor of lot 28 executed a deed containing the following description: “the north nine acres, more or less of Lot 28 etc., more particularly described as follows: Beginning at the southwest corner of Lot 21” and running east 640 feet, south 605 feet, west 640 feet, and north to the place of beginning. Held apparent that the point of beginning at the southwest corner of Lot 21 was false, and must be rejected; that the north line of Lot 28 must be accepted as the north boundary of the lands intended to be conveyed, that with this line in view as controlling the initial point of the survey, the description by metes and bounds being found to include 8.88 acres, this corresponded sufficiently with the area declared to be conveyed, and fixed its locality; that subsequent purchasers from the grantee in this deed were chargeable with notice of the intention of the grantor so ascertained. (351, 352)</p> <p>3. Pkecedents — Construction. Every opinion of the courts is to be construed in the light of the facts and circumstances of the case, giving each fact and circumstance its due weight. (349)</p>

<p>1. Practice — Construction of the Code. The provisions of the code should receive a construction in harmony with the manifest intent of the legislature, and one which will promote the convenience of parties to causes, and the courts, in the disposition thereof.</p> <p>2. Statute oe Limitations- — :Action Pending. By the filing of a complaint the court acquires jurisdiction of the subject matter of the cause therein set forth. Where the original summons is returned not found as to one or more of the defendants, and judgment given-against others who are served, the action is still a depending cause as to the defendants not served, and is continued from term to term, by operation of law, though no formal order of continuance is made. Alias summons may be issued at any time; and service upon them even after the lapse of many terms gives jurisdiction of the person of the defendants so served. (355, 356)</p> <p>3. Summons — Alias, may properly issue as to defendant named in the complaint, after the lapse of many terms subsequent to the institution of the cause, even though no formal order of continuance has been made in the meantime, and though judgment has been rendered as to other defendants, and affirmed on appeal. (356)</p> <p>The cause is continued from term to term, by operation of law, until, in some manner, final judgment is rendered. (Rev. Code § 43.) (356)</p>

<p>1. Appeals — Finding on Sufficient Evidence, will not be disturbed.</p> <p>2. Real Property — Liability to Execution. The inchoate interest of a purchaser of lands, under an executory agreement for the future conveyance thereof, is liable to execution. (362)</p> <p>3. Conveyances — What Must Be Recorded. A contract for the future conveyance of lands is within § 694 Rev. Stat. An assignment by the purchaser of his right- under such contract, not recorded, is without effect as to a creditor of such purchaser who, without notice of the assignment levies an execution upon the land. (360, 361)</p> <p>4. Execution Sale of Land — Effect. A sheriff’s deed of lands where a levy is made under Rev. Stat. § 3637, takes effect by relation as of the day on which the certificate of levy is filed. (363)</p> <p>The purchaser at the execution sale succeeds to all the rights of the defendant in execution. Where the defendant in execution holds under an uncompleted executory agreement of purchase, the purchaser at the execution sale acquires the right to proceed with the contract of purchase of which he has so become the involuntary assignee, to make the payments stipulated for in such agreement of purchase, and perform the covenants of the execution defendant therein. (364)</p> <p>The defendant in execution is under no duty to continue such payments, and payments made by an assignee of the execution defendant whose right is subordinate to that of the execution plaintiff, do not enure to the benefit of the purchaser at the execution sale. (365)</p> <p>5. Judsment — When a Bar. Action to vacate a judgment reviving a former judgment, and the sale of lands upon execution issued pursuant to the judgment of revivor. A judgment therein sustaining a demurrer to complaint, and directing a discontinuance, is no bar to a subsequent action by the same plaintiff for possession of the same lands, under a subsequently acquired title. (367)</p> <p>6. Estoppel — Who May Assert. A party will not be heard to charge his adversary by a supposed admission of what he has himself denied. (368)</p>

<p>Eminent Domain — Modifying Report of Commissioners■ — Power of the Court. 'Where the Commissioners act under a misapprehension of law, the court may so modify their report as to malee it comply therewith. (372)</p> <p>Where upon error to the order in such case no suggestion is made, nor authority cited, to show that the court erred in its conclusions either of law or fact, the order will he affirmed without investigation. (373)</p>

<p>1. Appeals and Ebboe — Appellant Must Show Injury. A decree will not be disturbed upon the complaint of a party who shows no specific injury. (380)</p> <p>2. -What May Be Assigned for Error — Consent. A party will not be beard to complain of a decree to wbicb he expressly consented. Even allegations of a departure from the statute, in a statutory proceeding, will not be considered. (380)</p> <p>3. -Questions not Presented Below. Appellant will not be heard to contend in the court of review that his consent to a decree, in the District Court, was obtained by fraud, where no such contention' was made below. (380)</p> <p>4. -Errors not Assigned. Findings not assigned for error will not he disturbed. (380)</p>

<p>1. Fraud — Pleading. Action to annul a contract for fraud. The complaint set forth the alleged false and fraudulent representations, plaintiff’s reliance thereon, his ignorance of the facts, and that he was deceived and misled by such false representations. - Held sufficient. (882)</p> <p>2. -Contract Induced ~by Fraud — Assignment and Reassignment — Effect. Plaintiff sued to vacate a contract alleged to have been induced by fraud. It appeared by the reply that prior to the discovery of the fraud he had assigned the contract to a third person, and this, it was contended, destroyed his right of action. Considering that the assignment was procured by defendants, was without consideration, and a continuance of the fraud, and that prior to the institution of his action plaintiff had procured a reassignment, and so placed himself in position to be able to surrender whatever he might have acquired in the fraudulent transaction, the contention was repelled. (382, 383)</p>

<p>Constitutional Law — Private Property Damaged by Public Improvement — Municipal Corporation Liable. A city is liable for injuries occasioned, to private property by the construction of a subway, in a public street, which allows passage by the public under the tracks of a railway company. (387)</p> <p>The fact that the railway company constructs the improvement under license of the city does not change the result. Denver v. Bayer 7 Colo. 113; Idaho Springs v. Woodward, 10 Colo. 104; Sorenson v. Greeley, 10 Colo. 369; Denver Co. v. Bourne, 11 Colo. 59 distinguished, as announcing the just and salutary rule that where an improvement is made for the benefit of private individuals, these must hear the burden of making compensation for any injury occasioned thereby. (387, 388)</p>

<p>1. Municipal Bonds — Bona Fide Purchasers, may rely upon the recitals thereof. (401)</p> <p>2. Estoppel — By Conduct. A municipal corporation issuing negotiable bonds for the. pur chase of water works, reciting full compliance with statutory requirements, will not be heard,' as against a tona fide purchaser thereof, to deny that the ordinance authorizing the purchase was duly published. (401)</p>

<p>1. Damase. — Evidence as To. Vendee of lands sues for fraudulent misrepresentations inducing his purchase. The price agreed upon is competent evidence, though not conclusive, of the value of the property if it had been as represented; and is sufficient to carry the case to the jury. (407)</p> <p>2. Verdict — Construction. Where, taken in connection with the record, the verdict clearly conveys the intention of the jury, it is sufficient. (408)</p> <p>3. -Fraud and Deceit. Execution Against the Body. Action for Deceit. Verdict for Plaintiff, declaring that “said defendant is also guilty of fraud and willful deceit”, entitles plaintiff to the award of an execution against the body of defendant. (408) .</p>

<p>1. Encumbrance — Easement. The right of way for an irrigating ditch is an encumbrance upon the land subject to such easement. (411)</p> <p>2. Vendor and Vendee — Covenant to Convey Clear of EnownuFrance. Knowledge on the part of the purchaser of lands, of an easement to which they are subject does not relieve the vendor of his covenant to convey clear of encumbrance, in the absence of evidence that the parties intended that such encumbrance should be excluded from the covenant. The property bargained for being city lots, intended merely for building sites, mere knowledge of the existence of the easement does not manifest such intent on the part of the purchaser. (411, 412)</p> <p>The effect of such knowledge, were the lands agricultural lands, not decided. (412)</p>

<p>1. Appeal and Error — Partial Error. The award of execution upon the allowance of a claim against a decedent’s estate will not suffice to reverse the judgment of allowance. The award of execution stricken out. (414)</p> <p>2. -Substantial Justice — Harmless Error. Where it appears that further litigation will not produce a result more favorable to the complaining party, immaterial errors will be disregarded. (414)</p>

<p>Criminal Law — Information. An information under Chapter 164-of the Laws of 1909, for maintaining a private employment agency without a license, must show affirmatively that the unlawful agency was maintained in some city or town. Only within cities and towns is the license required. Langan v. The People, 32 Colo. 414, distinguished. (417)</p>

<p>Defendant convicted of grand larceny upon evidence not sufficient to raise a respectable suspicion. Judgment reversed.</p>

<p>1. Negotiable Instruments — Assignment by Delivery. Under Rev. Stat. § 4512 the owner of a negotiable instrument may pass such, title as he has, by mere delivery for value, without endorsement..</p> <p>And, generally speaking, independent of statute, where the right of no creditor is involved, delivery for value or by way of gift has the same effect. (421)</p> <p>2. Evidence — Competency. Action by the heir to recover from the widow and administratrix of a decedent one half the value of certain promissory notes. The widow alleged a parol gift to her by the husband. Certain mortgages whereon was written an assignment to the wife, subscribed by the husband in his lifetime, were held admissible for the purpose of identifying, the notes. (422)</p> <p>In the same case held that under subdivision 7 of § 7267 Rev. Stat. as amended by c. 229 of Laws of 1911, the testimony of the widow in the County Court, when cited and examined under Rev. Stat. § 7253 was admissible in her behalf. (422)</p>

<p>1. Tax Titles — Assessment—Description. A custom of the county assessor to describe property by an abbreviation, in tbe assessment roll, will, in considering tbe validity of a tax sale based upon sucb an assessment, be disregarded. Any sucb custom is vicious and without effect. (425)</p> <p>2. -Yoid Deed. A tax deed wbicb by its recitations shows that tbe land was sold to tbe county on tbe first day of tbe sale is void upon its face. (426)</p> <p>So a deed not attested by tbe official seal of tbe county treasurer where this is required by statute. (426, 427)</p> <p>3. Limitations — Yoid Deed — Color o/ Title. To give color of title tbe instrument relied upon must be good in point of form, must profess to convey title, and must be properly executed. A treasurer’s deed not under bis official seal, when this is required by statute, does not amount to color of title. (428)</p> <p>4. -Good Faith. Color of Title is unavailable when acquired with knowledge of its invalidity. Tbe assessment roll and certificate of sale described tbe property as situate in a town wbicb bad no existence. One of tbe purchasers was an attorney. Held impossible to conceive of good faith, in reliance upon a deed, based upon sucb certificate, and assuming to convey other and different property. (430)</p> <p>5. Tbiai, — Continuance—Surprise.—Surprise in the testimony produced for defendant, alleged during the trial, as ground of a continuance, presents a question which is for the discretion of the trial court. (426)</p>

<p>1. Elections — Contest—Statement of Contest — Amendment. The provision of Rev. Stat. § 2312 that where the reception of illegal votes is the ground of contest a list of the persons alleged to have voted illegally must be set forth in the statement of contest, is mandatory, and must be strictly construed. A defect in this respect cannot be amended. (435)</p> <p>The provisions of the Code of Civil Procedure have no application. (437)</p> <p>2. Special Pboceedings — Amendment. Where in a special proceeding the statute makes no provision for amendments, those of a substantial character are not to be allowed. (438)</p> <p>3. County Seats — Location or Removal — Election. The Act of February 11th, A. D. 1881, (Laws 1881, 103, Rev. Stat. § 1171-1176) was intended to establish a uniform procedure regulating all elections concerning county seats. It applies to the conduct of an election for the permanent location of a county seat. (442, 443)</p> <p>All former legislation upon the subject, inconsistent with its provisions is impliedly repealed. (443)</p> <p>4. -Qualification of Voters. In view of § 2, art. XIV, and § 1 of art. VII of the constitution, whether the same rule as to residence should be adopted in elections for the location of a county seat, as in one for the removal of a county seat is a question for the legislature. The provisions of the act of 1881, as to this matter are within the legislative power. (446, 447)</p> <p>5. Statutes — Repeal by Implication. A statute repeals by implication all prior legislation inconsistent with its provisions, even though the latter enactment contains no repealing clause. (443)</p> <p>6. -Construction — The Title of an Act, is not to be referred to where the provisions of the Act are expressed in clear and unambiguous terms. (445)</p> <p>7. -Title — Sufficiency. Where it is clear that no member of the legislature could have been misled by the words used as the title to an enactment, nor any citizen of ordinary prudence led astray, the act will be sustained. (448)</p> <p>The title of the act of February 11, 1881, “An act to regulate elections for the removal of county seats”, held broad enough to in-elude an election for tlie permanent location of the county seat, which had been provisionally appointed hy the act .organizing the county.</p>

<p>1. Criminal Law — Murder—Circumstantial Evidence. The evidence examined and held sufficient, though circumstantial, to sustain a conviction of murder in the first degree. (451, 455)</p> <p>2. -Instructions, are to be construed as a whole. (457)</p> <p>3. Juror — Prior Opinion — Affidavits. The examination of the juror upon the voir dire, had not been preserved. In support of his motion for a new trial the accused deposed, that on such examination one of the jurors stated that he had formed no opinion. Other affidavits disclosed that the juror had both formed and expressed the opinion that the accused was guilty. The juror himself, other jurors, and the district attorney, made affidavits that, upon his examination, he declared that he had formed and expressed an opinion which it would require evidence to remove, but if accepted he would set his opinion aside, and try the issue upon the merits, and that the accused passed the juror for cause. Held that the juror was not shown to be disqualified, and the court declined to disturb the findings of the District Court, to this effect. (457, 458)</p>

<p>1. IsnrANir. — Custody. In proceedings affecting the custody of an infant the paramount and controlling consideration is the welfare of the child. (462)</p> <p>2. -Bight of Parent. The right of the parent to the custody of the child is not an absolute right, and will never be enforced where opposed to the interest and welfare of the child. (463)</p> <p>The mother of a child sued to obtain its custody. It appeared that her purpose was to deliver the child to a third person. This fact was held to eliminate from consideration the claim of the mother, and that the case was governed by the general rule. (462)</p>

<p>Statutes — Construction—Repealing Statute. A statutory clause purporting to repeal prior statutes is to be interpreted by tbe same rules as other enactments. The intention of the legislature must prevail over a literal interpretation. The title of a statute may be referred to, to aid in its interpretation. (469)</p> <p>And the reason, or the absence of reason, for the interpretation sought to be placed upon the enactment. (469, 470)</p> <p>Considering that by title of c. 181 of the Laws of 1903, it appears to have been the purpose of the legislature to deal with the estates, and not with the persons, of the insane; that it shows no intent to disturb the law relating to the trial of the sanity of a citizen; that no provision is made for the trial of an issue, in such cases, elsewhere than in the County Court, which had for so many years exercised the jurisdiction; that the act itself refers to the jurisdiction as still continuing; (§ 50) that it expressly provides for an inquisition in the County Court, upon allegation of the lunacy of a non-resident (§ 54), it was held that § 174 of the act was not intended to repeal the provisions of § 2204 of the General Statutes of 1883, as amended by c. 119 of the Laws of 1893. (470)</p>

<p>Appeal and Error — Adjustment by Parties — Effect. Where the parties to a judgment have adjusted their controversy a writ of error to review the judgment will be dismissed, even though there is depending the claim of the attorneys of the successful plaintiff below, to a lien upon the judgment, and a dispute as to the amount to be awarded to the attorneys. This controversy, must, in the first instance be adjusted in the lower court. (472)</p>

<p>1. Municipal Corporations- — Streets— Franchises Granted Therein. The prime purpose of a street is to provide a way for public travel; an easement in the sub-surface, even for lawful purposes is not an absolute right, but subordinate to the rights of the public therein, and subject to the powers of the municipal authorities to make such reasonable improvement or changes therein as in their judgment the public interest demands. (477, 478)</p> <p>A water company had laid pipes for the conduct of water through the streets of a municipality whose inhabitants it served; this by authority of a franchise granted by the municipality, and without any provision that the pipes when laid should not be disturbed. Upon the excavation of the street by the City to form a subway, in order to avoid grade crossings of certain railroads, it became necessary to remove the conduit and locate it at great expense, upon another route. The water company was denied compensation for the expense so necessarily incurred. (478)</p> <p>By an ordinance adopted subsequent to the commencement of the work, and an agreement pursuant thereto, it was provided that the railroad companies, a certain tramway company, and the city, should each bear one third of the expense of the improvement, and that the tramway company should have the right to use a specified width of the subway, on one side thereof for the passage of its cars, and should maintain this portion of the subway in repair, the same being separated from the residue by a fence. It did not appear nor was it claimed that if the city had constructed the subway at its own expense, the grade or dimensions would have been different from those specified in the contract. Held that inasmuch as the franchise granted to the tramway company had in no way increased the burdens of the water company, it afforded no change in the rule. (480, 481)</p> <p>Certain, engineers testifying as well as for the water company as for the City agreed that at another location the damages to the Water Company would have been less; but held that the judgment of the city authorities as to the location of the improvement was conclusive unless it was made clearly to appear that their selection of the route was unreasonable, or dictated by some fraudulent purpose; there being no evidence of this character, nor what it would have cost to construct the subway over the other route, the claim of the Water Company that it was unnecessarily damaged by the location of the subway at the point selected was rejected. (481)</p> <p>2. Constitutional Law — Talcing Private Property. The improvement of the street by the City, rendered necessary by a change in the pipes of a water company located therein by authority of a municipal franchise is not the taking of private property. (479)</p> <p>3. County Roads — Easement In. That an easement granted by the owner of the abutting land to lay and maintain in a county road, pipes for conducting water, is, like a similar easement in the streets of a city subordinate to the paramount right of the public to subject it to the public use, when necessary, without compensation.</p> <p>The rule is the same when the easement is obtained in a county road which afterwards becomes part of the public street of a city. When the lands are brought within the limits of the city, the road becomes at once subject to the control of the municipal authorities. Changing the grade, or constructing a subway therein is not an additional servitude. (482)</p> <p>4. Eminent Domain — Future Damages. All damages, present or prospective, which are the reasonable and necessary result of an improvement, are taken into account, and compensation awarded therefor; but not speculative damages which may by possibility result from future municipal action, for a different purpose. (482, 483)</p> <p>5. Costs. Section 6598 of the Revised Statutes is not unconstitutional. Dolores Co. v. Hartman, 17 Colo. 138, and Denver Co. v. Howe, 49 Colo. 256, distinguished. (483)</p>

<p>1. Evidence — Judicial Notice, taken, that in populous parts of a city, street ear tracks may be, and are likely to be, used by children for play. (489)</p> <p>1. Evidence — Judicial Notice, taken, that in populous parts of a railway company for injury to a child, playing in the street. A witness for the defense was cross-examined as to statements attributed to her, as made to one Puller, on the day of the accident. She denied making the statement. Puller, examined in rebuttal affirmed the making of the statement by the former witness, and testified that on that occasion, she declared that the defendant was to blame, that they did not give any child any chance to get away. On the authority of Denver v. Lomovt, 53 Col. 292 the testimony was held properly admitted. (492,</p> <p>3. Appeals — Verdict Upon Conflicting Evidence. Where a case has been properly submitted, the weight and sufficiency of the evidence is wholly for the jury, and their verdict will not be set aside except In case of palpable wrong. Any other rule would invade the constitutional right of trial by jury. (494)</p> <p>4. -Harmless Error. Action for injuries to a child by the negligent operation of a street railway car. Evidence was received that children had been seen playing on the street, in that vicinity, at other times. Held that the jury could not thereby have been misled into any improper inference. (489)</p> <p>' 5. Street Railway Company — Duty Towards Children Playing in the Street. It is the duty of a street railway company to take notice that, at any place, children may he occupying the street, in their play, and it is under duty to exercise a degree of care commensurate with the circumstances, and such as would be exercised by a reasonably prudent person, in like case. And in the populous portions of a city it must exercise greater circumspection and care.</p> <p>Where one in charge of a street railway car, sees, or by due care would have seen, a child of tender years, upon or in near proximity to the track, it is his duty to sound a warning, and immediately get his car under such control as to enable him to avoid injury to the child. (498, 499)</p> <p>6. Negligence — Imputed. The negligence of a parent in permitting a young child to play in the public street, where street cars are operated, is not to he imputed to the child. (493)</p>

<p>1. Municipal Corporations — Duty as to Condition of Streets. Municipal Corporations are required to construct their streets, and maintain them, under all circumstances, in reasonably safe condition for ordinary travel by those using due care in traversing the particular part of the highway which may be in question. Under no condition can a municipality be regarded as an insurer to those using the streets. (502)</p> <p>2. Negligence — Unforseen Results. Municipal corporations are required to guard against such dangers as can, or by the exercise of reasonable prudence ought to be anticipated; and where an accident happens to a traveler from some slight defect from which, according to common experience, danger is not to be reasonably anticipated, the municipality is not chargeable, e. g. where one, riding a bicycle over a viaduct, is thrown by reason of an inequality in the thickness of the planks by which the viaduct is covered, varying from one-fourth to three-fourth of an inch. (503)</p> <p>3. Negligence — For the Jury, as a rule; otherwise where the facts are not in dispute, or upon the evidence negligence or the absence of negligence is evident and unquestionable. (502)</p>

<p>1. State Board of Medical Examiners — Control of its Funds. Section 4, c. 189 of the Laws of 1911 is not in conflict with Rev. Stat. § 6071. It is within the authority of the State Medical Board to determine, absolutely, what expenditure shall be made of the funds arising in the lawful discharge of its duties, subject only to the statutory requirement that at the close of each biennial period the balance shall be transferred to the General Fund of the State. These funds do not arise from any 'appropriation of the legislature, but from fees and fines collected by the Medical Board; and the Medical Board may withdraw such sums as are necessary to meet its obligations, either present or ensuing within the biennial period. But its financial affairs must begin with and be closed at the end of, each biennial period. It may not withdraw funds near the close of one biennial period, for the purpose of depositing them during a succeeding biennial period, to meet expenses during such succeeding period. This would defeat .the clear purpose of the statute. (509, 511)</p> <p>2. Powers oe Auditor and Treasurer. Shortly before the end of the biennial period in each of the years 1906 and 1908 the Medical Board had drawn large sums from the custody of the Treasurer, leaving, at least in one of those years, no money at all to the credit of the fund. December 31, A, D. 1910, the auditor, by an entry in his books, assumed to transfer from the fund, of the Medical Board, a sum, the exact amount of the money so withdrawn in 1906, 1908; this upon the belief or suspicion that the withdrawal and subsequent deposit of those sums was a mere subterfuge, to enable the Medical Board to retain these moneys within their own control, and thus defeat the statute; and upon the opinion that it was within both his power and duty to make suck witkdrawal and transfer, in order to defeat tke supposed unlawful conduct of tke Medical Board.</p> <p>Hela tkat wkile tke facts set fortk in tke agreed case upon wkick tke cause was submitted were sufficient to justify the suspicion of tke auditor, the matter was not for kis arbitrary determination; tkat tke civil and criminal conduct of tke members of tke Medical Board are for judicial determination, after full hearing. (509, 510)</p> <p>Tke duty of the State Treasurer in this respect is purely ministerial. Tke transfer to tke General Fund directed by tke statute must be made at the date prescribed and only to tke amount in tke custody of tke Treasurer, at tkat date. The Treasurer has no power to make the transfer as. of any other date, nor to review any of tke official acts of tke Medical Board. (509)</p>

<p>1. Pleadings.' — Construction. A complaint for negligence in general and comprehensive terms, capable of being readily understood, and not so general as to mislead, is not subject to a general demurrer; nor to' a special demurrer for ambiguity in failing to state with particularity the manner in which defendant was negligent, or the like. (517)</p> <p>2. -Construed. Action for causing the death of plaintiff’s husband by the negligent operation of a street railway car. The complaint alleged that at or about the place where deceased attempted to board the car, defendant had placed a sign “Cars Stop Here”; that while the car was approaching the place of the sign “at a comparatively slow rate”, deceased signalled the motor-man, in the usual manner, to stop the car; that when the car reached him deceased “attempted to board it in the usual manner; that defendant well knowing that deceased was about to board said car, negligently failed to stop the car, but con-tinned the motion thereof, and negligently increased its speed, whereby without negligence on his part deceased was violently thrown off said car.” Held that the word “attempted”, considered in connection with the context, clearly indicates a physical act; and because it is alleged in the same sentence that deceased was violently thrown off etc., the allegation “was about to board said car” plainly means “was in the act of etc.” and not a mere mental purpose or intent; that the gist of the complaint is that defendant knowing that deceased was in the act of boarding the car, negligently increased its speed, with the result complained of. (513-517)</p> <p>An objection that the complaint fails to state how defendant’s negligence was the direct and proximate cause of the injury was held sufficiently answered by the allegation; “whereby deceased was violently thrown off said car.” (516)</p> <p>The manner in which deceased attempted to board the car was held to be sufficiently alleged, because “the usual manner” of boarding a car may be said to be a matter of general knowledge. The allegation that the car was approaching “at a comparatively low rate of speed” held to import that a person of ordinary prudence might attempt to board it with a reasonable probability of safety, and further that the allegation relates to a manner peculiarly within the knowledge of defendant, and for this additional reason the facts were sufficiently alleged. (516, 517)</p> <p>3. -Special Demurrer, and Motion to Make more Specific are substantially concurrent remedies. (517)</p>

<p>1. Fraud — Ratification. One who having been induced by fraudulent and false representations to enter into an executory contract, insists upon the performance thereof after he has full knowledge of the facts constituting the fraud, thereby ratifies the contract, condones the fraud, and is barred of an action for the damages resulting therefrom. (522)</p> <p>The ratification takes effect from the date of the contract and purges it of the fraud. (524)</p> <p>2. -Without Damage, not actionable. (527)</p> <p>3. Maxims — Volenti non fit injuria, applies to all loss resulting from the voluntary execution of a non-obligatory contract, with full knowledge of the facts which render the contract unenforceable. (527)</p>

<p>1. Executors and Administrators' — Exhibition of Claims — If the claim is based upon a promissory note, the note itself must he presented and filed in the court. Rev. Stat. § 7212. (531, 532)</p> <p>2. -'Waiver. The endorsement of the word “disallowed”, by the executrix upon a claim founded on a promissory note, and not exhibiting the note, is no waiver of the omission to file the note. (531)</p> <p>3. -Objections to Claim, need not he specified. (531)</p> <p>4. Pleadings — Construed. A claim upon a promissory note being exhibited against the decedent’s estate, the executrix files her bill in equity against the payee, and other subscribers to the note, asserting that decedent subscribed, merely as surety. The filing of the claim was admitted, but there was no admission that the note had been filed or exhibited. Held she was not estopped to plead the limitation declared in Rev. Stat. § 7206. (531)</p>

<p>1. Contract — Construed—Plaintiff’s Assignor, in February, entered into a contract to furnish defendant a horse to be used in a delivery wagon, the use of the horse to be paid for monthly at a ‘specified rate. In May of the same year the assignor refused to furnish the horse. Held that the contract was to run from month to month, and the violation thereof defeated the plaintiff's action on a prior assignment of whatever might be or become due thereunder, for the month of May. (534)</p> <p>2. Assisnment oe Ci-iose in Action — Effect. What may accrue in the future under an executory contract may lawfully be assigned; but the assignee takes subject to any defense or set-off which the debtor may have against the assignor. (535)</p> <p>•Plaintiff sued as assignee of one Archamhault for the use of a horse during the month of May. The contract was dated in February and ran from month to month, defendants agreeing to pay a stipulated monthly rate for the use of the animal. Archamhault also refused to surrender plaintiff’s wagons which were in his possession. Held that Arehambault’s defalcation, and the record of a replevin suit which defendant’s had prosecuted to recover their wagons, and the damages awarded them in that action, were all relevant and competent evidence against the claim of-the assignor, (534, 535)</p>

<p>1. Judgment — Conclusive Effect. Plaintiff was arrested, imprisoned and convicted of the violation of an ordinance. He afterwards brought his action against the city for such arrest, detention and imprisonment, alleging that the ordinance under which the proceeding was had, was void for want of publication. Held that the validity of the ordinance was a question witliin the jurisdiction of the magistrate, before whom it was arraigned, and no appeal having been taken from the judgment of conviction it was not subject to collateral attack. (538)</p> <p>2. Municipal Cobpobations — Liability to One Prosecuted for the Violation of a Void Ordinance. Plaintiff declared against the city for an unlawful arrest, and his detention in jail over one night, for the alleged violation of an ordinance, void for want of publication, alleging that the jail where he was incarcerated was a cheap wooden affair, liable to catch afire; that during the night of his detention therein, he was compelled to arise and rebuild the fire, that during his imprisonment he was deprived of the exercise necessary to his health and comfort; that while in the jail he was searched for fire-arms; that his trial, against his protests, was conducted in the presence of the police judge, and about 500 citizens. Held that the validity of the ordinance not being an open question, upon the record even though the city could be held liable for the misconduct of its officers, which was not determined, nothing in the complaint entitled plaintiff to an award of damages. (540)</p>

<p>1. Ckiminal Law — Second Offense. The phrase “subsequent violation of the act” in Rev. Stat. § 4108 means “second conviction”. There is no impropriety in proceeding against the offender by an information in two or more counts for different violations of the statute. (543)</p> <p>2. Conviction — Construed. Separate counts, conviction under each and judgment imposing a fine and imprisonment for fifteen days under the first count, and imprisonment only, for the same period, under the second count, “concurrently” with that imposed under the first. Held that the judgment under the second count added nothing to the punishment under the first, save in name. (542)</p> <p>3. Evidence — Competency. Information for the sale of liquors in anti-saloon territory. Defendant offered the lease under which he occupied the premises. It contained a clause to the effect that defendant should not sell intoxicating liquors without the written permission of the landlord, and defendant offered to prove that no such permission had been requested or granted. Held properly excluded. (543, 544)</p>

<p>1. Criminal Law — Plea, of Autrefois Acquit — Former Jeopardy. Defendant was accused, in separate informations, of the murder of one Copeland and one Von Phul, different individuals, and was confined without bail under each of the informations. A trial for the murder of Copeland resulted in a conviction, which, on error brought was reversed. Defendant upon his own motion, under Rev. Stat. § 2926 was discharged of the imprisonment under the information for the murder of Von Phul, and thereupon pleaded this discharge to the other information, alleging that all the shots fired by him were directed against Von Phul alone, and constituted one transaction. Held that even if the killing of both Von Phul and Copeland were to be regarded as a single transaction the effect of the discharge of the defendant from the former information was in no sense a trial upon the merits; that as to that information it did not appear that the accused was ever in jeopardy; that it was not the purpose of the statute to enable the guilty to escape, but to give effect to the provision of the Bill of Rights which guarantees to every accused person a speedy trial; that the statute is to be construed and applied in the light of the particular facts presented; that upon defendant’s own theory that the killing of Von Phul and the killing of Copeland were one act, the prosecution for the murder of Copeland was in strict conformity with the statute, therefore his discharge of the accusation in respect of Von Phul has not the effect to bar the prosecution for the other homicide. (551, 552)</p> <p>2. -Continuance — Diligence. The prisoner on May 8th was allowed a continuance to May 26th, in order to afford time to take the gree, it is the exclusive province of the jury to determine the question deposition of a witness named residing without the state, or ascertain the whereabouts of others named, and secure their presence at the trial. The cause being set or called for trial,- the defendant applied for a commission for the examination of one of the witnesses named in the former application. Held properly denied as not made in apt time (552)</p> <p>Whether the deposition of a non-resident witness may be taken in a criminal cause, Quaere. (552)</p> <p>3. -Examination of Juror on Voir Dire. Defendant’s counsel had been permitted to examine a member of the jury by hypothetical questions, involving the defense of the accused. Held that the prisoner could not complain of questions afterwards propounded by the district attorney, in line with those of his own counsel. (553)</p> <p>4. -Homicide — Self Defense. It may be said in a general way that one is entitled to act on appearances, in using a deadly weapon to defend himself; but the appearances must be such as, taking into consideration the circumstances, at the particular instant, would have caused a reasonable and prudent man to use such weapon for his protection. (572)</p> <p>5. --Office of Jury. Where there is in the record sufficient evidence of all the facts necessary to constitute murder in the first deof guilt or innocence, the degree of the crime, and the manner of punishment, and it is not within the authority of the court to say that the verdict should have been other or different. (573)</p> <p>6. -District Attorney — His Duty, defined and enlarged upon, and particularly his duty to repudiate everything that savors of chicanery, and all appeals to unworthy prejudice, and see that no conviction shall taire place except in strict conformity with the law. (559)</p> <p>There was testimony tending to establish improper relations between the prisoner and the woman in the case; also testimony tending to show that Von Phul was infatuated with the woman. The husband of the woman was a witness for the prisoner, and upon the conclusion of his testimony, in quitting the witness stand, stopped and shook hands with the prisoner. Held a proper matter of comment to the jury; but the District -Attorney having referred to another case in which as he said the counsel for the prisoner had pursued the same tactics, and, as he claimed with -success, the latter statement was held improper. (563, 564)</p> <p>Argument to the jury that when the prisoner shot Yon Phul, without justification and with deliberation and malice, and one of the bullets struck and caused the death of an innocent by-stander he was guilty of murder held proper, there being evidence to establish the matters of fact relied upon in the argument. (567, 568)</p> <p>Defendant pleading self-defense the District Attorney commenting upon the instructions of the court that “great bodily harm”, meant “a serious and severe injury”, argued that the danger to be apprehended from Von Phul was not so imminent as to require the taking of his life, so that the accused was not entitled to plead self-defense. Held legitimate. (568, 569)</p> <p>The District Attorney urged the jury to find the accused guilty of murder in the first degree and prescribe in their verdict the penalty of death, arguing that if men like the accused-could go out and wreck homes, and thereafter shoot in the back men of whom they were jealous, and shoot indiscriminately into a crowd, and then be turned loose, there would be no safety for law-abiding citizens; and that there would be no necessity for courts or juries unless in such case, an example was set. Held there being testimony to support all the matters of fact so urged upon the jury, the argument was no more than an appeal to them to discharge their duty. (569)</p> <p>The coat worn by Yon Phul at the time of the shooting was in evidence and it was claimed by the prisoner that a hole in it corroborated the testimony of the prisoner that he shot in self-defense. One of the attorneys for the prisoner had had the coat in his possession, — always in the presence of others. The District Attorney argued that, what was claimed to be a bullet-hole was in fact a knife-cut, and insinuated that defendant’s counsel could have made it. This being assigned for error held it was for the jury to determine how the hole was made, its appearance was a proper matter of combat, and it was not improper to call the attention of the jury to the question. (570)</p> <p>In view of the fact that counsel for the prisoner were, throughout ’the trial, vigilant to protect his rights, and that the court repeatedly admonished the jury not to accept as evidence the opening statement or the arguments of counsel it was concluded that in determining the guilt or innocence of the prisoner the testimony alone was considered. (571)</p> <p>7. -Evidence — Examination of Witness, as to his occupation and antecedents is proper, as bearing upon the credit to be accorded to his testimony. (561)</p> <p>8. --Former Testimony of Witness Beyond the Jurisdiction of the Court. — To receive in behalf of this state, at the second trial the recorded testimony of a witness at the first, who has gone and remains beyond the jurisdiction of the court, is not a violation of the constitutional provision entitling the accused to meet the witnesses against him face to face. (554, 557)</p> <p>The evidence of the absence of the witness held sufficient. (558)</p> <p>9. -Opening Statement of Prosecutor. — The purpose thereof is to give to the jury an understanding of the case from the viewpoint of counsel. The statement should not.be in the nature of an argument, and the District Attorney should be careful not to include statements relative to testimony not competent to prove any issue in the case. (553)</p> <p>10. Wkit of Error — Harmless Error. It seems that error to the prejudice of the accused in the examination of a juror on the voir dire is harmless when the juror is not finally accepted upon the panel. (553)</p> <p>Improper statements of the prosecuting officer in his opening statement to which objection is promptly sustained by the trial court cannot be assigned as error. (553)</p> <p>An assertion by the District Attorney that the report of the testimony of a witness at a former trial had befen falsified having been fully explained, and the District Attorney shown to be in error, could not have influenced the jury and is not assignable as error. (561)</p> <p>At the conclusion of the examination of one Garver for the defense, the District Attorney, speaking in a low tone asked leave of the court to file an informátion for prejury against this witness. None of the jury heard this application, though the fact was published in the newspapers of the city. About the same time the District Attorney, in a published interview, stated, in effect, that he understood women of the under-world would be called to bolster up the defense. That he would not stand for the repetition of what had occurred in a former case which he mentioned. No claim was made that by reason of either of these publications any witness who the prisoner desired to call had refused to testify, or left the jurisdiction. Conceding that the District Attorney acted improperly in making the statement attributed to him, and that the filing of the information against Garver should not have been published, held that in the absence of any showing that the accused had been prejudiced the matter could not be assigned for error. (561, 562)</p> <p>Held further that the statement of the District Attorney, manifestly referring only to witnesses who should testify falsely could not have had the effect to terrify an honest witness. But the court add that the place to try any action is the forum which the law has provided, and not in the public press. Remarks made by the District Attorney to the jury, objection to which is promptly sustained are not prejudicial. (562)</p> <p>An angry wrangle by counsel touching a mere question of law, is not prejudicial to the accused. (560)</p> <p>11. Verdict — Comments of the Trial Judge — That the accused “ought not to_ suffer the penalty of death” held not a disapproval of the finding of guilty of murder in the first degree. (574)</p> <p>12. Constitutional Law — Summoning Jury. — Chapter 159 of the Acts of 1911, providing for appointment of a jury commission in every county having a population exceeding one hundred thousand, according to the last census, state or federal, is not local or special and in no manner contravenes the constitutional provision against special laws. (552)</p>