Volume 6 — Colorado Reports

<p>1. As a general rule, whenever a contract conflicts with the morals of the times and contravenes any established interest of society, it is void as being against public policy.</p> <p>2. Railroad companies held to be quasi public corporations and agencies, their directors acting in the double capacity as agents for the companies and as trustees for the public. When the public interests axe brought in conflict with the private interests of the company, or of private individuals with whom such companies deal, such private interests must yield to those of the public.</p> <p>3. The public has a right to say that such companies shall not be permitted to make any contract which would prevent them from accommodating the public, when entitled to it, in the matter of transportation and travel.</p> <p>4. It is a general rule of the law of contracts, that if the consideration, or any part of it, is illegal, no promise based upon such illegal consideration can be enforced. But if one gives a good and valid consideration, and thereupon another promises to do two things, one legal and the other illegal, he shall be held to do that which is legal, unless the two are so bound together that they cannot be separated, in which case the whole promise is void.</p> <p>5. A contract is to be considered by reference to all its parts and provisions, and the nature of the transaction which forms its subject matter. No particular form of words is necessary to constitute a covenant.</p> <p>6. No court will lend its aid to one who founds his cause of action upon an illegal or immoral act.</p>

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

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

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

This was an action upon a bond given by Amanda J. Troutt as principal, and Kerr as surety, upon an appeal from a judgment in a justice’s court in an action of unlawful detainer, and also to recover the moneys received by the surety from the principal in the bond, to be paid, as was contended, to the plaintiff. Default was entered against Amanda J. Troutt.

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

<p>The averments of a complaint can be alone looked to in determining its sufficiency. It must state a cause of action without regard to exhibits.</p>

<p>Under the statute (Laws 1879, p. 226) appeals to this court' were only authorized when the judgment or decree appealed from was final, and amounted, exclusive of-costs, to the sum of $20, or related to a franchise or freehold.</p>

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

<p>To authorize an appeal to this court the judgment must amount, exclusive of costs, to $30, or relate to a franchise or freehold. Joinder in error does not remove the objection.</p>

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

<p>1. It is an elementary principle that the law permits no person to profit by his own wrong, and he that prevents a thing being done shall not avail himself of the non-performance he has occasioned.</p> <p>3. The rule that a decree or judgment will not be disturbed unless manifestly against the weight of evidence, does not obtain when the testimony is taken before a referee. In such case this court will examine the entire record with a view to a just determination.</p>

<p>1. When an administrator commits devastavit and absconds, the proper remedy is upon his bond.</p> <p>2. To make use of legal pleadings to attribute corrupt motives to the officers of a court, and to insinuate a conspiracy between the judge, parties and opposing counsel to defeat justice, without a foundation in fact clearly appearing, is an abuse of the privilege of an attorney deserving severe rebuke.</p> <p>3. Under the statute (General Laws, sec. 2830) letters of administration shall issue out of the county wherein the intestate resided next previous to his death.</p> <p>4. In cases where the general equity powers of the district court are invoked to oust a county court of jurisdiction in matters of probate and administration of estates, the district court will, if it assume jurisdiction, look to the facts alleged and proved, not to the prayer for relief.</p>

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

<p>1. In an action by a widow against the administrator of her deceased husband, the plaintiff proposed to testify, of her own motion, that certain property sold in the life-time of her husband belonged to her; that she consented to the sale, and permitted the husband to take the money, with the understanding that he was to reinvest it in another homestead, which was to belong to her, but which was never done. Held, that under section 2, chapter 104, General Laws, such testimony is specifically prohibited.</p> <p>2. Under the statutes of this state the wife may hold an absolute legal estate as free from the common law rights of her husband as if she were unmarried; as to her separate estate, she has no husband.</p> <p>3. The receipt by the husband of proceeds or income of the wife’s estate is presumably in the character of agent, and if he claim the same as a gift or legal transfer', the burden is on him to establish his claim by evidence, and in no other mode of treating the subject can the intent and purpose of the statute be carried out.</p>

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

<p>1. An appeal is not a new action, but the continuation of the same suit, being only a transfer from one court to another for final hearing or judgment.</p> <p>2. The time limited by the statute within which proceedings shall be commenced for the recovery of mesne profits, does not begin to rum until the final termination of the ejectment suit.</p> <p>3. Where a suit in ejectment was pending on appeal from the judgment; of the court below, when the Code of Civil Procedure went into' effect, and which repealed the ejectment act, held, that the action, was saved by the provision of the code.</p> <p>4. The fact that a statute provides that damages may be recovered under certain circumstances, does not necessarily make such right of recovery purely statutory.</p> <p>5. The right to recover mesne profits was a common law right, and in this case having accrued since the repeal of the ejectment act and under the code, held, that under the code there was a remedy for its enforcement.</p> <p>3. The action for the recovery of mesne profits is a separate action.</p>

<p>Under the act of February 24, IS?!), a party in whose favor a judgment is rendered cannot appeal to this court. Joinder in error does not remove the objection, as consent cannot confer jurisdiction.</p>

<p> Appeal from District Court of Lake County. </p> <p>This was a motion to strike the supplemental transcript, from the ‘files.</p>

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

<p>The rule of law, that a promise is a good consideration for a promise,, requires that there be an absolute mutuality of engagement, so that each party may have an action on it, or neither will be bound.</p>

<p>The case is stated in the opinion.</p>

<p> Error to District Court of Gunnison County. </p> <p>This was a motion to dismiss the writ of error. The case is stated in the opinion.</p>

<p>1. To invalidate a sale on the ground that the article purchased was a “gambling device,” more is required than amere knowledge on the part of the vendor that the article sold will be put to an illegal uso by the vendee.</p> <p>2. Participation by the vendor must be active; he must do something, though indirectly, in furtherance of the vendee’s design to violate the law.</p>

This was a complaint for an injunction against .the defendant in error,-Way and others, and the city of Denver, to restrain the building of a sidewalk by Way and others, contractors, under a city ordinance. The defendants demurred, the demurrer was sustained, and Palmer prosecutes this writ of error. The facts are stated in the opinion.

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

John Septer Filmore, John Norman Filmore, infant heirs of John S. Filmore, Jere Kershow and Charles B. Patterson, who sues as administrator of the estate of Elizabeth M. Kershow, formerly the widow of John S. Filmore, prosecute this writ of error, and John J. Reithman, the defendant in error, appeals. The case is sufficiently stated in the opinion.

The appellee Glass brought his action in the district court of Clear Creek county against Lawson, the appellant, for work and labor, and obtained a verdict for $181. A motion for a new trial having been overruled, judgment was rendered on the verdict, and Lawson appealed to this court.

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

<p> Appeal from District Court of Arapahoe County. </p> <p>On petition for rehearing the following opinion was rendered by</p>

<p>1. Where real estate was sold to be fully paid for by a given, date, on which a deed for the premises was to be given and possession surrendered, held, that the vendee, having made default in payment of the purchase money, is not entitled to possession until full payment be made in accordance with the terms of sale.</p> <p>2. If default be made in the payment of Unsecured purchase money in such case, a,nd the grantor obtain a decree awarding him a vendor’s lien on the premises sold, with right of possession until payment of such purchase money, held, that no rent accrues against the vendor for retention of the premises during said default of payment, although a deed of the premises was delivered the purchaser prior to his default.</p> <p>3. The claim for such rents having been interposed as payment of purchase money in the action for the vendor’s lien, cannot afterwards be interposed as a counterclaim in an action for the recovery of the purchase money.</p>

<p>This was a writ of habeas corpus.</p>

<p> Appeal from County Court of Lake County. </p> <p>Motion to dismiss appeal.</p>

<p>A plaintiff cannot abandon his original cause of action and substitute an entirely new cause of action in his complaint.</p>

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

The bill of exceptions in this case sets forth the petition of Margaret Palmer, the defendant in error, substantially to the effect “that she had heretofore renounced under the will of her deceased husband, and elected to take, under the statute, one-half the real and personal estate of the deceased, and that she asks the court now to make an order to divide the personal estate of the deceased, and to direct the plaintiff in error, administrator with the will annexed of said…

Appeal from District Court of Lake County. The facts are sufficiently stated in- the opinion. The plaintiffs, appellees, had a verdict and judgment for $4,000.

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

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

On the trial of this cause in the court below the plaintiff, to maintain the issue on his part, produced as. a witness: Timothy Dyer, who, being sworn, testified: Am one of the defendants; recollect the bond executed! by O’Connor as principal, and myself and Murrin as sureties, to the lodge. The bond was afterwards delivered up to us by McPhee. Q. What became of that bond ? A. I paid McPhee $880, and he handed me the bond and I destroyed it.

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

<p>In an action under the code to recover possession of personal property, the complaint must allege ownership, either general or special, otherwise the complaint will be bad on demurrer.</p>

This cause came on for rehearing on the demurrer interposed by the relator to the return made by the respondents to an alternative writ of mandamus. The case is fully stated in the opinion.

<p>When service by publication is had under the code, the service is not complete until the expiration of ten days after the time prescribed for publication, and the defendant in such case has forty days in which to answer after service, exclusive of the day of summons.</p>

<p>1. When, the want of summpns upon a party sought to be made defendant affirmatively appears by the record, the jurisdiction of the court does not attach.</p> <p>2. A judgment rendered against a party not before the court is invalid, and a court of equity may enjoin the execution of such judgment. Where the judgment is voidable merely, a different rule applies ■ according to the equities of the case.</p> <p>8. The rule that the issuance of a writ of injunction operates as a release of all errors in the proceedings enjoined, is not believed to be applicable to proceedings in chancery, or those in their nature equitable. The rule is statutory; also held that the rule is inapplicable in this case, the judgment being not merely erroneous but void.</p> <p>4 Proceedings to enforce rights under the mechanics’ lien law are in their nature equitable, and prior to the present code were administered by the chancery side of the court, and governed by the rules of chancery practice. The distinctive rules and principles applicable to legal and equitable rights and remedies, as heretofore distinguished, are unaffected by the abolition of forms under the code practice.</p> <p>■5. The issue tendered by the bill for injunction in this case being the validity of the judgment, might have been met by demurrer or motion to dissolve the writ.</p> <p>6. An answer must be responsive to the bill to properly raise a triable issue.</p> <p>7. Brevity in pleading is to be commended when it intelligently expresses a cause of action or defense, but a loose and wholesale adoption and readoption of exhibits attached to pleadings of the adverse party, as far as applicable and with certain exceptions, is too uncertain to be tolerated under any system of practice.</p> <p>8. A defendant who becomes pro hoc vice complainant, must, in his cross-bill, set forth the grounds relied upon for affirmative relief with the same strictness as the complainant in his original bill.</p> <p>9. It is error to rule a plaintiff to plead to a cross-bill while demurrers thereto are depending and undisposed of.</p> <p>10. Under section 1668, General laws, claimants seeking to enforce mechanics’ liens are required to make not only the owner of the property, but all other persons interested in the premises, parties defendant. Being a statutory proceeding, the mode thereby prescribed must be specifically pursued.</p> <p>11. The statute (General Laws, section 1660) provides that the premises may be sold within the time and in the manner provided for sales on execution issuing out of any court of record. This must-be .construed to mean twenty days, under section 1417, General Laws.</p>

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

<p>1. Criminal Trials, How Conducted. The Statute of Colorado requires all criminal trials to be conducted according to the course of the common law, except where a different mode is pointed out.</p> <p>2. Arraignment—Plea. Where the record fails to show that a prisoner was arraigned upon the indictment, or required to plead thereto prior to trial, and it is not contended that there is any omission in the record, the entire proceeding is a nullity, and fatal to a judgment.</p> <p>3. Same. The prisoner may, however, after reversal of the judgment, be arraigned, required to plead, and tried on the same indictment.</p>

The appellee obtained a verdict for the sum of $1,802.53, upon which, judgment was rendered. The. facts involved are sufficiently stated in the opinion.

The plaintiff obtained a verdict and judgment for $442.50; a motion for a new trial having been overruled, the defendant below prosecutes this appeal! The evidence as disclosed by the record was as follows: Luedeke testified: “I first met Mr. Schleier in the little building of John Aisley, and somebody told me he was going to build, and he would like to take me as an architect. Well, he said yes; then he asked me, he don’t want to pay very much.

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

<p>1. It is a general rule that the verdict of a jury or the judgment of a court will not be disturbed upon the ground that such verdict or judgment is not supported by the evidence, where the bill of exceptions does not purport to contain all the evidence; but if the record shows specifically what is omitted, and a question is presented by the assignment of errors which does not involve a consideration of the omitted evidence, the question may be reviewed.</p> <p>2. Persons seeking the equitable interposition of courts must themselves do equity. And when they seek to deprive others of interests in lands, they are always required, to establish their right to the relief sought by clear proof.</p> <p>3. The conduct of a trial, which includes the order of introducing evidence, rests largely in the discretion of the court, and it is only where the discretionary power is grossly abused that it becomes a subject of review.</p> <p>4. Admissions and confessions are evidence against a party, but he cannot annul or explain them away by counter declarations.</p> <p>5. It is not proper to permit a plaintiff on rebuttal to prove that defendant’s witnesses have made previous statements at variance with their testimony, without first calling their attention to the contradictory statements, giving time and place, and giving the particulars of the conversation and the circumstances under which the statements were made. The rule cannot be avoided by declaring that it is not intended to impeach the witnesses..</p>

<p>1. The assignee of a debt secured by trust deed holds the same equities that the- original creditor held, and a bill by such assignee for the reformation of the trust deed, containing allegations which would be good if made by the assignor, is not demurrable on the ground of the assignment.</p> <p>2. In case of note and trust deed executed by the officers of a corporation as such, the evidence showing conclusively that the debt was due by the corporation, and the title to the property conveyed in the trust deed was in the corporation, and that the intention was to bind the corporation by the execution of the note and trust deed, held, a court of equity may interpose, correct the mistake, reform the deed, foreclose the same, and enforce the lien.</p> <p>3. In such case, under section 1428, General Laws, it is within the discretion of the court to fix the time within which the amount found due shall be paid before sale takes effect; and the equities of the case furnish the proper guide for such discretionary period.</p> <p>4. Where the creditor holding such trust deed seeks foreclosure, and prays that the same be treated as a mortgage, the decree of foreclosure must embody right of redemption.</p> <p>5. Compound interest is not allowed under the statute of this state.</p>

<p>1. Upon an assignment of error based upon alleged insufficiency of facts to support tbe judgment, there can be no review unless the bill of exceptions contains all the evidence upon which the question depended in the court below.</p> <p>2. Where a party to a contract has looked to the anticipated realization of funds by the projectors of a particular undertaking, and not to the personal liability of the parties with whom he has contracted, his claim is confined to that fund, and he cannot enforce payment from individuals; and if the project miscarries and funds are not realized, he has no claim upon anybody for anything. But the intention of the party, on the one hand, not to hold the other personally liable, and, of the latter, to limit his liability to some contingency, so that a cause of action will not arise until it has happened,; should be clearly manifested by the contract, the general rule being that the law implies a promise to pay for services rendered.</p>

<p>A common carrier is liable to vindictive damages only in case of gross negligence. And in a case showing only ordinary negligence, it is error for the court to instruct the jury that vindictive damages may be allowed.</p>

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

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

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

<p>1. When land is purchased for which one party pays the consideration, and another takes the title to himself, a resulting trust immediately arises m favor of the party paying the consideration, and the other party becomes his trustee. And when one party furnishes part of the purchase money, the trust in like manner results pro tanto.</p> <p>2. Parol evidence is admissible to show such trust.</p> <p>8. Where there has been part performance of a verbal contract, which, by the statute of frauds, is required to be in writing, the contract is enforceable in equity — otherwise the statute of frauds would operate to protect a fraud.</p> <p>4. A contract by which one party agrees to furnish the money to make payment for, and the other to do work required upon coal and mineral lands, is not violative of the act of congress respecting the appropriatiqijqf suph lands. It may be otherwise as to agricultural lands.</p>

<p>The defendant, in case of service of summons by publication, has forty days after service is complete in which to make defense.</p>

<p> Error to District Gourt of El Paso County. </p> <p>The case is stated in the opinion.</p>

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

The complaint in this case alleges substantially as follows: “ That on December 11, 1877, the two defendants (appellant) and George W. Parker entered into an agreement in writing with the plaintiff (appellee) and Anselm H. Barker, Wm.

<p>1. The power of an officer making tax sales is purely statutory. A statutory power must be exercised according to statutory directions. A substantial, and in many cases a strict, compliance with the provisions of the law, preparatory to and authorizing the sale, is a condition of the power, and essential to its rightful exercise.</p> <p>.2. It is a settled rule in the interpretation of revenue laws, that in cases of doubt or ambiguity the construction must be in favor of the public.</p> <p>5. An officer having no power to sell land for delinquent taxes until after a certain date, a sale made prior to such date, held to be premature and void, and the tax deed a nullity; also, that the defendant in an action to recover possession could not avail himself of the statute of limitations under such deed.</p>

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

<p>The amount fixed as the statutory limitation of the jurisdiction must be taken to mean the amount due the plaintiff, or the value or amount of his claim, or the value of the property sought to be recovered at the time of bringing the action; and in an action for the recovery of money, where the principal sum draws interest, if the amount duo at the time of the commencement of the action, including interest, does not exceed $2,000, the county court, under the constitution and statutes of Colorado, has jurisdiction, and the accumulation of interest pendente lite will not oust such jurisdiction.</p>

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

<p>1. It is-the, privilege-of a defendant in justices’ courts to have the proceedings brought in the township in which he resides, or in which the cause of action accrued; but this may be waived. Appearing in the justice’s court, and in the county court on appeal, is a waiver of this privilege, provided the justice had jurisdiction of the subject matter of the action.</p> <p>12. As railway companies have made their checks evidence in regard to the delivery of baggage, the possession of such check is evidence against the company of the receipt of the baggage.</p>

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

<p>In condemnation proceedings under the statute, where the commissioners have filed with the clerk their certificate of “ascertainment and assessment,” and the court or judge has denied the motion of the petitioner or respondent to vacate or set aside the same, there is such a final determination as will authorize a writ of error or an appeal.</p>

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

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

<p>1. Upon issuance of a patent for land, it relates back to the date of entry.</p> <p>3. A mere tenancy at will may be terminated at any time by entry of the owner of the fee.</p> <p>3. Where partnership funds were used in purchasing a mere possessory right in real estate, the partners taking no steps to acquire the fee, but the survivor, upon the death of his copartner, acquiring the fee and having purchased the possessory interest of the deceased partner from the administrator of the estate, held, that the surviving partner did not come within the rule of a tenant acquiring an outstanding title, which he must be considered as holding in trust for his co-tenants.</p> <p>4 It is the business of courts to pass upon the rights of parties as they find them, and not to make contracts for parties.</p>

<p>The best evidence <3f which a case in its nature is susceptible must be produced. When incompetent testimony is permitted to go to a jury, which may have influenced their verdict, the verdict will be set aside.</p>

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

<p>1. By answering and going to trial on the merits after demurrer to the complaint is overruled, the defendant waives his exceptions to the ruling on the demurrer.</p> <p>2. When it appeared that the superintendent and secretary of a corporation were its general agents in the transaction of its business, their declarations concerning a debt contracted previously, "and within the scope of their authority, held properly admissible, under an exception to the rule excluding the declarations of an agent made subsequent to the transaction to which they relate.</p> <p>3. The conditions of an agreement being mutual and dependent, before either party can enforce the contract or rescind and recover damages for advanced payments, it is necessary for him to allege and prove a compliance on his part with the conditions of the contract, or facts that will excuse non-performance.</p>

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

<p>1. Pleadings should be formal and sufficient so as to present the substantial issues to be tried. The best interests of suitors will be advanced by a wise but generous exercise of discretion in allowing amendments to pleadings.</p> <p>2. Under the old chancery rules, a special replication, making a new case from that stated in the bill, could not be filed without leave. Under the code, statements in a replication not constituting a departure from the allegations of the complaint, whether they be denominated new matter, or matter in avoidance, are permissible. In this case, no exception having been taken to the replication before trial, its sufficiency must be admitted.</p> <p>3. The same lode may have different names, by -which it is known, derived from different locations, and a conveyance of -it under either name, if otherwise regular, so that it can be ascertained what property was intended to be conveyed, will pass the title.</p> <p>4. A subsequent location extending over a senior discovery in the actual possession of another, is not valid as to the portion thereof occupied by the other party.</p> <p>5. Entering upon premises in the actual possession of another, for the purpose of performing the acts necessary to constitute location and possession, amount only to a trespass, and cannot form the basis for the acquisition of title.</p> <p>6. If there is evidence tending to establish the plaintiff’s cause of action, or the defendant’s case, it is erroneous for the court to withdraw the case from the jury or direct a verdict, because it is not for the court to judge of the sufficiency of the evidence.</p> <p>7. In a possessory action proof of possession of a mining claim is always prima facie evidence of title.</p> <p>8. It has been held that if the plaintiff is unable to prove a valid location in accordance with the mining laws in force, yet if he show actual possession under color of title at the time defendant entered, he may recover in ejectment.</p>

<p>1. Special property in goods may, under the code, enable a party to sue in his own name as in replevin or trover. Where the entire property is in the consignor, he is the proper party to sue; where the entire property is in the consignee, the latter sues; when both are interested, one as general, the other as a special owner, either may sue. A recovery in such action, properly instituted, will be a bar to any subsequent action against the same defendant at the suit of' another party having either a general or special property in the goods.</p> <p>2. In case of loss of goods for which a carrier becomes liable, the general rule is that the measure of damages is the value of the goods at the point of destination; but the rule is more”especially applicable to goods shipped for sale in the ordinary course of commercial traffic, and not to household goods and wearing apparel in use. In such cases the measure of damages is a matter of law to be decided; by the court.</p>

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

<p>1. The relocation of an abandoned mining claim is made in substantially the same manner as the original location thereof. The relocator must perform all the acts required in making a valid original location, in the same manner and within the same time as though the premises had always remained a part of the unappropriated public domain, except that he may adopt the boundary stakes of the abandoned elaim, and, instead of sinking a new discovery shaft, he may sink the old one ten feet deeper.</p> <p>2. If the relocator finds a vein in the discovery shaft of the abandoned claim, he may, under our statute, make a valid relocation thereon, though technically such finding may not constitute a discovery.</p> <p>8. Only the unoccupied and unappropriated mineral lands of the general government are subject to exploration and location.</p> <p>4. When the locator has fully complied with the law in locating a mining claim, he is entitled to the exclusive possession and enjoyment thereof until it is forfeited or abandoned.</p> <p>5. The locator of a mining claim must sink liis discovery shaft upon territory which he has a right to appropriate. He cannot sink such shaft upon ground embraced within a prior valid and subsisting location.</p> <p>6. Section 25(> of the code does not prevent the admission of proof showing a failure to perform one of the acts essential to a valid location, though such proof also establishes the fact that actionable injuries were done to third parties who are neither parties nor privies to the action.</p> <p>7. The vein is the principal thing, and the location should be made in conformity with the strike thereof.</p> <p>8. When one has discovered a lode upon the unappropriated public domain, and has, within the proper time, in good faith, performed all of the subsequent acts essential to a valid location, as provided by law, he is entitled to the presumption that his lode extends through the full length of the claim.</p> <p>9. And where another, by a subsequent and conflicting location, undertakes to hold a portion of the prior claim on the ground that the lode thereof does not extend to the conflicting premises, the burden of proving such fact is upon the subsequent locator.</p> <p>10. The object of location statutes is hot merely to fix the amount of surface territory allowed the locator for working purposes, but also to protect him in the exclusive possession and enjoyment of his lode, and all other veins, lodes or ledges, the apexes of which are within his surface boundaries.</p>

<p>1. The statute which provides for appeals from the county court to the district court requires the proceedings in the appellate court to be in all respects de novo, and that all such cases shall be conducted in the same manner as if originally brought in- the district court.</p> <p>2. A rule of court cannot supersede a statute. The statute requires that written notice of all motions in all cases be given, except those made during the progress of the trial, and includes a' notice of a motion to dismiss a cause pending for trial. The statute implies not only that a separate notice shall be given of such motion, but contemplates actual and not constructive service.</p> <p>3. There is no analogy between rule 18 of the district court of Arapahoe county and rule 26 of this court.</p> <p>4. It would be a narrow construction of section 396 of the code to hold that a defendant could not make an appearance in the district court in any action otherwise than by filing an answer, demurrer, or by written notice of his appearance.</p> <p>5. In this case, held: As the law now stands, where an appeal is taken from the county court, and perfected by the execution and approval of an appeal bond, and the proper papers have been filed in the district court, the appeal cannot be summarily dismissed without notice to the appellant on the ground alone that he did not file the papers in the district court within a specified time,</p>

<p>1. Upon issuance of a patent for mineral lands, the presumption obtains that all the requirements preliminary to its issue have been complied with. This presumption is not open to rebuttal in an action at law, and the patent itself is unassailable except by a direct proceeding in equity for its correction or amendment. This doctrine is limited to cases where the land department of the government has jurisdiction to act and to execute the grant.</p> <p>2. Whenever a patent is absolutely “ void on its face” it may be impeached collaterally in a court of law.</p> <p>3. Land embraced within a town site on the public domain, when unoccupied, is not exempt from location and sale for mining purposes; its exemption is only from settlement and sale under the pre-emption laws of the United States.</p> <p>4. There is no limitation put upon the sale of ground located for mining purposes, nor upon the number of locations which may be acquired by purchase, nor upon the number which may be included in a patent.</p>

The questions raised by the assignment of errors are the same as those raised and determined in the preceding case of Poire v. Wells.

<p>1. There is no provision, constitutional or statutory, which in terms requires the levy of a tax upon the annual net proceeds of mines and mining claims bearing precious metals.</p> <p>2. As a rule the statute does not require that either a corporation or one individual shall be liable to taxation for personal property owned' at any time during the fiscal year, but only upon what was owned on the 1st day of May.</p> <p>3. It is a fundamental rule that it belongs to the legislative department to determine the persons and objects to be taxed, and to provide the necessary mode and provisions to make the law effective; also that great caution is to be exercised in enacting a law imposing taxation, in order to arrive at the intentiqn of the law-giver, for it is the intention that is to be enforced.</p> <p>4. When the object is plain and the language unequivocal, effect must be given to the law by the courts, but burdens are never to be imposed upon citizens upon vague or doubtful interpretations.</p> <p>5. The annual amount of net proceeds of the mines are not liable, under the statute, to taxation as such.</p>

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

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

<p>Express trusts are created by contract of parties. Implied or resulting trusts are such as arise by operation of law upon certain acts of parties. Resulting trusts may be shown by parol.</p> <p>2. Express trusts, being matters of agreement between parties, must be proved as contracts. Where this class of contracts relates to lands, the statute of frauds requires that they shall be manifested and proved by writing under the hand of the party to be thereby charged.</p> <p>3. A bona fide purchaser for value, without notice of prior equities, and not chargeable with, neglect to acquire knowledge of an equity which could not be enforced against him, may take the legal title, which a court of equity will not set aside.</p> <p>4 The jurisdiction of the county court being limited by statute, it must affirmatively appear by the complaint that the case is within the jurisdiction of the court.</p> <p>5. A bona fide purchaser of the legal title from a trustee having power to sell and administer the proceeds, is not bound to see to the application of the purchase money.</p> <p>6. Equity, while it follows the law, will never lose sight of the rights of all parties in interest before it, and will not administer a trust piecemeal.</p>

<p>i. The right to water in this country by priority of appropriation is entitled to protection as well after patent to a third party of the land over which the natural stream flows, as when such land is part of the public domain; and it is immaterial whether or not it be mentioned in the patent and expressly excluded from the grant. The right itself, and the obligation to protect it, existed prior to legislation on the subject of irrigation.</p> <p>2. In the absence of express statutes to the contrary, the first appropriator of water from the natural stream for a beneficial purpose has, with the qualifications contained in the constitution, a prior right thereto, to the extent of such appropriation.</p> <p>3. The right to water acquired by prior appropriation is not in any way dependent upon the locus of its application to the beneficial use designed.</p>

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

■ The “second” instruction given and referred to in the opinion of the court was as follows: “ Second.

<p>1. Under the United States statutes (section 5057), no suit can be maintained between an assignee in bankruptcy and a person claiming an adverse interest touching .any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.</p> <p>2. A writ of error is, in this state, the commencement of a new suit.</p>

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

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

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

<p>tinder the statute of frauds aud perjuries of this state, the “note or memorandum” required upon sale of real estate must show on its face or by reference to other writings, first, the najnes of the parties, vendor and vendee; second, the terms and conditions of the contract: third, the interest or property affected; fourth, the consideration to be paid therefor.</p>

The complaint in this case, filed in the district court of Pueblo county, alleges: (C That the plaintiff is the mother of one James F. Farrow, now deceased, and that at the time of the death of said James F. Farrow the plaintiff was, and now is, the only surviving parent of said deceased, and said deceased at the time of his death, and at all times prior thereto, was an unmarried man; and plaintiff further avers that said deceased was born in lawful wedlock. “ The defendant…

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

The record shows that oil June 6, 1881, plaintiff, by leave of the court, filed his amended complaint, in which he alleges “that March 5, 1880, defendants were partners doing business in Chaffee county; that on said day plaintiff entered into a contract with the defendants, by which he agreed to deliver them, in said county, all the sawed lumber required by them in the construction of the extension of the Denver, South Park & Pacific Eailroad, from Buena Yista to the east…

<p>Petition for mandamus. The case is stated in the opinion.</p>

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

<p>Application for writ of prohibition. The case is stated in the opinion.</p>

Mandamus to compel W. R. Beatty, city auditor, to issue to the relator a warrant in payment of certain indebtedness due from the city of Denver for work done by the relator, the claim having been duly passed, and on the 5th day of April, 1883, allowed by the city council. To tlie respondent’s answer, the material portions of which are mentioned in the opinion, the relator demurred, and the demurrer was sustained, whereupon the respondent sued out this writ of error.

The bill of complaint filed by Chandler in this suit alleged a copartnership agreement, entered into in April, 1867, between Craig, the plaintiff in error, Chandler and H. L. Thayer, in the saw-mill business; that Craig was to put $6,000 into the business; Thayer and Chandler each $3,000. Craig to have half, and Chandler and Thayer each one quarter of the profits. Partnership to continue five years. Chandler and Thayer to have $1,200 each a year for their time.

<p> Petition for rehearing. </p>

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

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

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

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

<p>1. Where the evidence fails to support the verdiot the judgment will be reversed.</p> <p>2. When an instruction is based upon evidence not properly preserved in the record by a bill of exceptions, this court cannot assume there was testimony to warrant the instruction; and when it appears that such instruction was prejudicial to the party assigning error thereon, the judgment will be reversed.</p>

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

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

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

<p>1. Under the federal and state statutes, two kinds of possession of mining ground are recognized: First, when the miner holds by occupancy alone; second, when he holds the full claim by virtue of a compliance with the location statutes. But when one attempts to make a statutory location of a full claim, and fails to comply with the law, all that portion of the location as marked on the surface of which he is not in the actual occupation is open to exploration and relocation by others.</p> <p>2. The position of the vein with reference to the location is a fact upon which some proof must appear. But slight proof, however, will be sufficient to establish prima faaie that the vein extends throughout the claim.</p>

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

On the 27th day of January, 1879, three promissory notes were given by H. L. Swords in the name of B. F. Allen & Oo. to one W. H. Bush; the first note was made payable sixty days after date and the others in ninety days. On the 28th of January, 1879, the notes, as alleged by plaintiff in error, were purchased in its usual course of business. Upon maturity payment was refused, and suit was instituted in the district court of Lake county.

<p>1. In proceedings'under the lien acts all persons in interest, whether of the property or as lien claimants, are to have notice; but the defendants proper, who are to be summoned as such in the action, axe the owners of the property sought to be charged by the lien to be decreed.</p> <p>2. Any person whose interest therein, when disclosed, requires it, may be made’a party pending the proceedings prior to the final' decree.</p>

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

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

Morrison & Charist were copartners. Morrison died, and Charist, the surviving partner, to secure a debt of the firm, gave a, trust deed upon certain real estate owned by them in the town of Silverton. Upon breach of the conditions of the trust deed the land was sold by the trustee, and the appellant Breen became the purchaser and was in possession.