Volume 6 — Colorado Court of Appeals Reports

' Appellants were defendants below; — a suit in equity brought by trustees to foreclose a deed of trust upon forty (40) acres of mining land in the county of Lake, to secure payment of debenture bonds for ¿625,000, issued in England.

Appellee, the administrator of the estate of Wm. J. A. Howie, brought suit to recover from appellants the sum of $1,224.88, alleged to have been due Howie at the time df his death. Appellants were mining the Continental Chief Mine. Howie was engaged with teams in hauling coal to .the mine, and ore from it. He died on the 14th day of October, 1892.

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

<p>1. Agents and Agency — Contracts—Ratification.</p> <p>It is impossible for an agent acting in the same transaction for two opposing parties to perform his duty to both. A contract made by him in this double capacity may be avoided by either party, unless it was so made by his express authority, or unless, with full knowledge of the facts, he afterwards ratified it.</p> <p>2. Same.</p> <p>It is not necessary for the purpose of avoiding a contract made by an agent,'"who was also agent of the opposing party, that it should be tainted with fraud or be disadvantageous to the complaining party.</p> <p>3. Pleading — Denial.</p> <p>A denial by the defendant that it ever insured the plaintiff is not sufficient to admit proof of facts or circumstances which would give the defendant the right to avoid the policy after it was executed.</p> <p>4. Agents and Agency.</p> <p>Authority to agents to procure insurance upon their principal’s property does not, of itself, constitute them his agents for the purpose of receiving notice of cancellation of the policy.</p> <p>5. Insurance — Delivery of Policy — Payment of Premium.</p> <p>When a policy has been executed and the premium paid, the policy belongs to the assured. He is entitled to it upon demand, and the law regards it as having been delivered. As to payment of premium, it is the fact, and not the mode, which is material.</p>

An action in replevin brought by appellee (plaintiff) against appellant (defendant) to recover a lot of farming implements and machinery. The complaint was in the usual form.

<p>1. Garnishment — Jurisdiction.</p> <p>Proceedings in attachment or.by garnishment are purely statutory. The statute must be literally and specifically followed, and a departure vitiates the proceeding and renders it' void. If the affidavit or process be defective, the court acquires no jurisdiction over the . garnishee. ■</p> <p>2. Same.</p> <p>Garnishment is not a case in which jurisdiction can be acquired by voluntary appearance of the parties or aided by presumptions; neither can any substantial requirement of the statute be waived by the garnishee.</p> <p>8.. Jurisdiction on Appeal in Garnishment — Appearance.</p> <p>The appearance of the defendant in the county court, in a case commenced before a justice of the peace and appealed by the plaintiff, ■■ must be regarded, under the circumstances of this case, as in the main suit and not in the garnishment proceedings, and is ineffectual to confer jurisdiction over the garnishee.</p>

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

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

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

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

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

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

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

County. Mrs. Barron, the appellee, got hurt on Thirty-Fourth avenue, in the city of Denver, on the first of March, 1892. It appears from the proof that prior to that time a sewer had been laid along the alley between Franklin and Humboldt streets where they cross Thirty-Fourth avenue, and had been continued in its course probably across the avenue.

This litigation proceeds from the acts of Joseph Allison, a constable, in the arrest of the appellee, Prisk, in March, 1892. There was some trouble at a schoolhouse on Cheltenhan Heights, and in the melee one Scott appears to have been considerably bruised and beaten. After the affray, a complaint was filed with the justice, charging divers persons (names unknown) with committing the misdemeanor.

Maggabd (appellee), on May 10, 1893, sued out an attachment against one C. C. Shawver. On May 22d, the sheriff made return of the writ of attachment, with the indorsement that he had had the writ since the 10th day of May, and had failed to find the defendant in his county.

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

In December, 1888, appellee, Voght, Ell and Fless, purchased a brewery at Florence from one McCandless, together with appliances, for the sum of $12,150, $4,000' of which was paid in cash. The remaining $8,150 was secured by the joint notes of the four purchasers, and a mortgage upon the property. The conveyance from McCandless was made to the four purchasers.

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

<p>Evidence — Expeets.</p> <p>Bankers and others of several years’ experience in business requiring them frequently to inspect notes, etc., and to examine signatures, are competent to testify as to whether a paper had been altered by changing certain letters.</p>

This was a suit in equity by appellee against appellants, and a controversy over the right to the possession of land in the mountains as a reservoir site for the storage of water to be used for irrigating agricultural lands some distance below; Beaver Brook, the source of water supply for the reservoir, being a tributary of the St. Vrain river. Until the year 1889, all the land in controversy was public domain, the property of the United States.

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

Defendant in error brought suit against the plaintiff before a-justice of the peace. A trial was had, and from the judgment an appeal was taken to the county court, where a trial was had resulting in a judgment against the defendant for $300. Defendant was engaged in smelting ores. Plaintiff was by it employed as a furnace man and had charge of the furnace.

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

<p>Statute op Frauds — Change op Possession — Notice.</p> <p>Tlie vendee of chattels must take actual possession of the articles.sold, and the possession must be open, notorious, unequivocal, and such as to apprise the community that the goods have changed hands, or the sale is void as to creditors of the vendor. The statute does not permit the transaction to rest upon the declarations of good faith of the parties. That creditors had notice of the transaction before bringing their suit does not alter the situation or affect then-rights.</p>

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

<p>1. Municipalities — Legislative Power.</p> <p>Legislative acts respecting the political and governmental powers of municipal corporations not being in the nature of contracts, the provisions thereof may be changed at pleasure when the constitutional rights of creditors and others are not invaded.</p> <p>2. Same.</p> <p>The general assembly is omnipotent as to municipal corporations in this state, except as limited by the constitution.</p> <p>3. Legislative Poweb — Licenses.</p> <p>When the sale of intoxicating liquors is not prohibited by the constitution, the legislature may confer upon a municipality exclusive power to regulate and license the traffic, but general laws relating to the subject are not impliedly repealed by statutory or charter provisions enabling a municipal corporation to pass ordinances regulating the business.</p> <p>4. Chabteb oe Denveb.</p> <p>The amendment of 1891 to the charter of Denver, providing that all laws of the state concerning Sunday closing of. saloons shall be in force in said city, is constitutional.</p> <p>5. Jubisdiction.</p> <p>The district court of Arapahoe county has jurisdiction to try, under the state law, a party upon an information charging him with keeping open a saloon for the sale of liquors on Sunday in the city of Denver.</p>

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

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

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

<p>1. Rescission — Pleading.</p> <p>A complaint in an action for rescission of a contract which contains no allegation of an offer to restore the goods obtained under the contract, or put the parties in statu quo, is insufficient.</p> <p>2. Evidence.</p> <p>Testimony of a witness called to prove value, who has not shown himself competent to testify on the subject-matter inquired about, is objectionable.</p> <p>3. Immaterial Error.</p> <p>Where the plaintiff testified fully as to certain matters, and the defendant offered nothing contra, the exclusion of other testimony to the same point is immaterial error.</p> <p>4. Same.</p> <p>When the plaintiff was not entitled to recover upon the case as made, an erroneous instruction .does not require a reversal of the judgment against him. mmm</p>

Eakly in December, 1892, the appellee Stanley bought into a business which was then being carried on in the city of Denver by W. F. Mitchell. It was a coal and feed business. What of stock was possessed by the firm at the time of its organization is not disclosed. As copartners, Stanley and Mitchell carried on business until the later part of January, 1893, when, becoming mutually dissatisfied with the situation, they dissolved.

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

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

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

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

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

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

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

<p>1. Statute of Frauds — Question of Fact.</p> <p>A question arising under the statute of frauds, as to whether exclusive possession of the chattels sold was given to the purchaser, is one of fact for the jury.</p> <p>2. Fraud.</p> <p>Any transfer for the purpose of hindering or delaying creditors or to reserve benefits to the vendor is fraudulent. To a great extent the question is one of inténtion, which must be'determined from all the circumstances.</p> <p>3. Debtor and Creditor.</p> <p>An insolvent debtor may prefer his creditor.</p>

<p>1. Practice in Justice Court — Title and Boundaries — Certifying Causes.</p> <p>If, in any action before a justice o.f the peace relating to real estate, it shall appear that the title or boundaries are in dispute, it becomes his duty to certify the cause and transmit the papers to the district court.</p> <p>2. Jurisdiction of Justice of the Peace.</p> <p>Where the plaintiff’s right of action grows out of an invasion of a possession which he actually had, and whose boundary as between him and the defendant was a fence, the location of which was not disputed, a justice of .the peace has jurisdiction, and immaterial evidence to show that the fence was on the true boundary line does not divest it.</p> <p>3. Immaterial Error.</p> <p>Only the party injured can complain of the giving of objectionable instructions.</p> <p>4. 'Appellate Practice.</p> <p>The grounds of objection taken to the introduction of evidence at the trial are the only ones that can be noticed in this court.</p>

<p>1. Municipal Corporations — Stbejsts.</p> <p>The duty of keeping its streets in repair and in reasonably safe condition for travel in the usual modes rests primarily upon the municipality, and it must answer for any injury occasioned by its neglect of such duty. This duty cannot be avoided, suspended or cast upon others by any act of its own.</p> <p>2. Same — Notice.</p> <p>Notice, actual or implied, of a defect in a street, occasioned by accident or by the act of a wrongdoer, must be brought home to the city before liability can be fastened upon it. But, under the circumstances of this case and the provisions of an ordinance, the city is conclusively presumed to have had such notice.</p>

This was a proceeding by petition in the district court by appellants, the owners of the irrigating ditch, to reform the decree of the district court in declaring priorities and quantities to which different ditches were entitled, made in May, 1888, and for a readjustment of water rights and redistribution of the water in the district. The ditch of appellants took water from Beaver Creek.

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

<p>1. Contributory Negligence.</p> <p>No cause of action arises where the decedent had been guilty of negligence which contributed to the injury complained of.</p> <p>2. Same.</p> <p>When an employed lingers in a place of known danger where he was not compelled to be by the performance of required labor, and, in consequence, is injured, he is guilty of contributory negligence.</p> <p>3. Instructions, When Misleading.</p> <p>When, upon the trial of action for damages for injuries resulting in the death of an employee in a coal mine, there is no attempt to show the mine boss to have been incompetent, unskillful or lacking in experience, an instruction that the company was required by law to employ a competent mine boss has a tendency to mislead the jury.</p> <p>4. Attorney — Authority to Appear.</p> <p>Where the right of an attorney to appear is questioned, not capriciously, but evidently upon good grounds, it is the duty of the court to require him to exhibit his authority.</p>

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

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

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

<p> jError to the District Court of G-arfield County. </p>

This suit was brought by plaintiff in error as county treasurer to collect a school tax of $60.91, for the use of school district number one, in Montrose county.

<p>Damages — Bkeach of Conteact.</p> <p>Where the evidence tends to show the plaintiffs right to damages sustained by reason of being prevented from performing his contract, it is error to enter a nonsuit.</p>

<p>1. Appellate Practice — Immaterial Error.</p> <p>If there is not enough in the record to support a judgment if one had been entered for the plaintiff, he cannot complain of error which the court committed either in admitting or rejecting testimony.</p> <p>2. Evidence — Record. ,</p> <p>Resort cannot be had to the record in another suit for the ascertainment of facts essential to charge the defendant with a liability, unless in some way the record is produced and legitimately brought to the court’s attention.</p>

This suit was before this court on a former occasion. See Bush v. Koll, 2 Colo. App. 48. Reference will here be made to that case for a statement of the facts. Upon the first trial, plaintiff got judgment for $413.88; an appeal taken to this court, where the judgment was reversed and cause remanded.

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

Chas. E. Gast entered into a contract with MeGonigle by .which the latter agreed to build for the former a residence .according to plans of architects, as cheaply as it could be well constructed, he to receive as compensation ten per cent upon the cost of the building,. Gast to pay the bills and contracts of McGonigle.

On August 14, 1898, The Crescent Flouring Mills, in the city of Denver, the property of The Colorado Milling and Elevator Company, was destroyed by fire, on which the owners’ had a policy of insurance for 110,000 issued by The Millers National Insurance Company of Chicago. Fifteen or sixteen other insurance companies had issued policies and were interested in the loss. They had appointed a committee of three to ascertain the loss preparatory to an adjustment.

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

<p>1. COBPOBATIONS — STOCKHOLDEBS’ ACTIONS — ILLUSOBY SUITS.</p> <p>Whenever it is made to appear that a suit was not begun in good faith by a shareholder for the protection of his rights, but in reality originated and prosecuted by another corporation for its own benefit, the court will consider what led the plaintiff to institute his suit, and, finding some other reason than a desire to protect stockholders’ rights, will refuse to entertain the bill.</p> <p>2. Same — Stockholdebs’ Suits — Pleadings.</p> <p>The complaint of a stockholder to redress a corporate injury, which contains no averments either of request upon the corporate authorities to institute the action or of excuse for not so doing, does not state a cause of action. It should show that all honest and reasonable efforts had been resorted to by the plaintiff to obtain corporate action to the redress of the grievance.</p>

<p>1. - Evidence.</p> <p>Witnesses are only competent to state facts. The existence or nonexistence of a partnership is to be deduced from the facts. The conclusion of a witness that a partnership existed is not admissible in evidence.</p> <p>2. Paetnebship, Defined.</p> <p>A partnership is a contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions.</p> <p>3. Same.</p> <p>To constitute a partnership inter se, there must be an unity of interest, and it must be for the prosecution of the business in which the supposed partner is charged.</p> <p>4. Same — Estoppel</p> <p>Without satisfactory proof of acts whereby parties have been misled to their injury, by reason of assumptions and representations, there can be no partnership as to third parties, except by a partnership inter se.</p> <p>5. Paetnebship.</p> <p>To constitute a community of profit in a partnership, a party must have a specific interest in the profits themselves, in contradistinction to a stipulated portion of the profits as a compensation for his services or other benefits conferred.</p>

In 1882 appellant excavated a ditch, known as the Home Supply Ditch, over the land of appellee.

<p>1. Jurisdiction — Intervention.</p> <p>Jurisdiction does not in an intervention-depend upon the record of the permission to intervene. Permission is presumed where nothing to the contrary appears and the court has assumed jurisdiction.</p> <p>2. Practice.</p> <p>If the description of the property mentioned in-the petition of intervention is not sufficient to establish its identity, the objection must be taken by demurrer or motion.</p> <p>3. Presumption of Regularity.</p> <p>The presumption that proceedings of the court below were regular, and its judgment warranted, must prevail until the contrary is shown.</p> <p>4. Appeal, Dismissal of.</p> <p>Where an appeal from the county to the district court was not made within ten days after the judgment, and no order extending the time in which to perfect an appeal was obtained, a motion to dismiss it should be sustained.</p>

•Appeal from the District Court of Pueblo County. • Previous to July 15, 1891, Nettie Earhart was the owner of three lots in block 14 of Craigs addition to the city of Pueblo as originally surveyed and platted, the three lots fronted on 14th street; she had them resurveyed and divided into four lots, the fronts being on Conley street.

<p> Appeal from the District Court of Rio Q-rande County. </p>

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

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

<p>1. Practice — Sealed Yerdicts.</p> <p>Jurors may, by order of court, if they arrive at a verdict during recess reduce it to writing, seal it, and separate. But the verdict must be retained by the jury or by some member thereof, and be by the jury delivered to the court.</p> <p>2. Jury, Separation op.</p> <p>Although a jury may be allowed to separate after having sealed a verdict, they must be called at the opening of court and asked whether they have agreed upon their verdict.</p> <p>3. Verdict — Objection.</p> <p>Irregularity in the reception of a verdict is not waived by a failure to object at the time it was so received.</p> <p>A Estoppel.</p> <p>A party.cannot be estopped by his silence, except where he was under some obligation to speak.</p>

On the 23d day of February, 1893, appellee brought suit against appellant on the following promissory notes : “ $2,500. February 20, 1883. “ On or before October 30,1883, after date I promise to pay to the order of L. R. Tucker, twenty-five hundred dollars at Colorado National Bank.

<p>1. Appellate Pbactice — Abstbact—Pbestjmption.</p> <p>Where the abstract of the record does not contain the matters referred to in an assignment of error, it will be presumed that such assignment has been abandoned.</p> <p>2. Evidence — Declabations op Assignob.</p> <p>The declarations of an assignor of property for the benefit of creditors made after assignment are not admissible for the purpose of impairing the title of the assignee.</p> <p>3. Ebaud — Insolvency.</p> <p>In an action by the vendor of goods to recover them on the ground of fraud, it is not sufficient to warrant a recovery to show that the purchaser was insolvent and that he knew it at the time of the purchase. It is not the circumstances of the vendee, or his knowledge of them at the time, but the motives with which he made the purchase, that is determinative of the character of the transaction.</p>

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

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

<p>1. Constitutional Law— Uniformity of Practice.</p> <p>Section 9 of the act of 1891, providing that in counties of certain classes either party may have a jury in county court by advancing fees for the payment of such jurors, and that in counties of another class either party shall be entitled to a jury without advancing fees, is repugnant to section 28, article 6, of the constitution.</p> <p>2. Statutory Construction — Repealing Clause.</p> <p>A general clause in the statute, repealing all the laws in conflict with it, does not repeal provisions which are inconsistent only with portions of the statutes which are void.</p> <p>3. Jury Rees in County Court.</p> <p>Where the requirements of the act in relation to regular jurors in the. county court has been observed, the fees of the jurors are chargeable to the county; but where the jury is required for the trial of an individual cause, it must be summoned in that cause and the fees must be advanced by the party demanding it.</p> <p>4. Pleading — Jury Rees.</p> <p>A complaint in an action against the board of county commissioners for the fees of jurors in the county court which fails to show .an observance of the statutory requirements in the selection of a jury for the term, does not state a cause of action.</p>

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

<p>1. Railroads — Negligence.</p> <p>Tlie mere fact that an animal was killed by a locomotive of tbe defendant company is not sufficient to warrant a recovery. The damage must have occurred through its negligence, which must be made to appear by proof.</p> <p>2. Instructions.</p> <p>An instruction which announces a naked legal jiroposition is objection able.</p> <p>3. Same.</p> <p>An instruction which assumes that there is evidence from which the jury might find a fact where there is no evidence on the subject is erroneous.</p>

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

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

<p>1. Appellate Pbactice — Abstbact.</p> <p>A writ of error may be dismissed for a failure to comply with the rules of court respecting abstracts of the record.</p> <p>2. Bill op Exceptions.</p> <p>•A bill of exceptions must be authenticated by the signature and seal of the trial judge.</p> <p>3. Same.</p> <p>Without a bill of exceptions there can be no review of the judgment upon the evidence.</p>

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

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

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

<p>1. Appellate Pbactice.</p> <p>When enough is found in the record to sustain the verdict, according to the general practice in such cases, it will not be disturbed.</p> <p>2. Instbuctions.</p> <p>When the instructions, taken as a whole, fairly define the crime charged and state its various elements with sufficient accuracy to advise the jury as to the law, they are sufficient.</p> <p>3. Same.</p> <p>An omission to instruct the jury in a criminal case in respect to the defendant’s failure to testify is not error when the defendant asked no instruction on the subject.</p>

<p>1. Evidence.</p> <p>Statements of third, persons in the absence of the accused are not admissible in evidence against him.</p> <p>2. Pbactice in Cbiminal Cases — Infoemation—Allegations and Peoof — Vaeiance.</p> <p>It is essential that the information charging a larceny set forth the name, if known, of the owner of the property alleged to have been stolen, and this must be proved precisely as laid.</p> <p>3. Same.</p> <p>The allegation in the information was that the money alleged to have been stolen was the property of Michael Johnson, and the proof was that it belonged to Mike Johnson. Held, that the variance was fatal.</p>

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

<p>1. Statutory Construction.</p> <p>The act of 1891 (Laws 1891, p. 238), mating both husband and wife Hable for family supplies, cannot be given a retroactive effect to cover contracts made before its passage.</p> <p>2. Parties.</p> <p>ft is erroneous in an action on a promissory note to render judgment against one who was not a party to the note.</p>

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

<p>1. Assignment fob Benefit of Creditors.</p> <p>Assignments for the bepefit of creditors are regulated by statute.</p> <p>2. Deeds of Assignment, Construction of.</p> <p>The effect of a deed of assignment must be determined from its own language. If it in terms embraces all the property of the assignor, it is, in so far, a compliance with the law. The inventory required to be annexed is not intended to be a part of the deed of assignment, limit its effect or control its operation.</p> <p>3. Same — List of Creditors.</p> <p>The list of creditors annexed to a deed of assignment is no part of the deed. Where the deed itself provides for the distribution of the estate among the creditors, a creditor’s rights cannot be prejudiced by the omission of his name from the list.</p> <p>4. Assignee’s Authority, Source of.</p> <p>The authority of an assignee for the benefit of creditors is statutory. Powers which the assignor may assume to grant by his deed are without effect.</p>

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

JSrror to the District Court of Chaffee County. In January, 1891, Josiah M. Bonney was the treasurer of Chaffee county, charged with the duty of collecting the taxes due the county and state as provided by statute. William E. Robertson was at that time proprietor of The Chaffee County Bank, doing a general banking business at Salida, where the treasurer’s office was located.

<p>1. Evidence.</p> <p>The question of whether or not there was a contract is one of law to be determined upon the facts in evidence. When these do not show a contract, a conclusion which a witness deduces from them is not to be regarded.</p> <p>2. Appellate Pbactice.</p> <p>When the verdict is not supported by the evidence, the judgment must be reversed.</p>

<p>1. Pasties.</p> <p>The cestui que trust is an indispensable party where the plaintiff, in an action to foreclose a mechanic’s lien, seeks a decree establishing the priority of his right as against the title represented by a trust deed.</p> <p>2. Appellate Pbactice — Pabtial Reveesal.</p> <p>Where the record involves several matters, and a part has been rightfully adjudicated, the reversal should only extend to what will include the error committed, if it be remediable, either by amendment of the decree or by subsequent proceedings in tbe case.</p>

John Hess filed a bill on behalf of himself and other purchasers of water from The La Junta and Lamar Canal Company and its predecessor, The Arkansas River, Land, Reservoir and Canal Company, to compel the performance of a certain condition specified in his deed and in all others which were issued by the Canal Company, providing generally for the transfer to the purchasers by the company of the title to and control of the canal on the happening of certain events.

<p>1. Statutoby Coxsteuctiox — Cobpoeatioxs.</p> <p>Section 252, Gen Stats., relating to tlie filing of annual reports by corporations, is mandatory. A corporation must file its reports, executed and verified as required, and the liability of the directors for the company’s debts is in the nature of a penalty for a neglect to comply with the law.</p> <p>2. Same.</p> <p>The liability of directors of a corporation which has failed to file an annual report as required by statute covers all debts contracted by the company during the year preceding the time when the report should have been made, and all debts contracted afterwards until the making of the report.</p> <p>3. Same — Limitations.</p> <p>Suits against directors of a corporation to recover the penalty incurred by a failure to make an annual report must be commenced within one year after the cause of action accrued.</p> <p>4. Estoppel.</p> <p>To constitute an estoppel by conduct, the person in whose behalf the doctrine is invoked must have changed his position on the faith of such conduct.</p> <p>5. Statutobt Coxstbtjction.</p> <p>To entitle a plaintiff to recover against directors of a corporation for failure to make an annual report of its affairs, etc., he must bring himself strictly within the law.</p>

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

Two suits were brought against The Rockwell Stock and Land Company to recover damages. In one case for the injuries which Martha Castroni had sustained by reason of the breach of an alleged agreement made between her and the company, and in the other for the wages which Joseph had earned under a special contract. The two suits were tried together and the two appeals were heard at the same time.

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

On August 20, 1892, appellant insured appellee for one year for the amount of §500 on household furniture; §875 on alfalfa' in stack and' §125 On wheat and oats in stack. Alfalfa -estimated,‘at 700 tons and oats 600 bushels. Appellee paid for such insurance §55.00. On the 4th day of December, 1892, the'- entire alfalfa hay crop and 400 bushels of 'grain'were destroyed by fire. Notice and proof of loss was made.

<p>1. Mechanics’ Liens.</p> <p>Subcontractors and material men, as lien claimants, bave no interest in a fund provided by the principal contractor, for the purpose of protecting the owner against liens which may result from his failure to make payments. Their rights are fixed 'by statute, which provides a lien against the real estate and tlíó mariner of'enforcing it.'</p> <p>2. Same — Statutoby Constbijction.</p> <p>The mechanie’s.lien law of 1S83 having been,amended by the act of 1889, which act provided that it should not be construed to affect existing rights, left the law of 1883 available for the purpose of protecting rights which had accrued prior to the time the repealing act took effect; but rights subsequently acquired could only be preserved and enforced in conformity with the new law.</p> <p>3. Same — Subcontractors.</p> <p>Mechanics’ liens are created by statute, and only those persons in whose favor the right to liens is given can acquire them.</p>

<p>1. Appellate Peactice.</p> <p>Without issues of fact there is nothing to which evidence could apply, and assignments of error concerning such evidence will be disregarded.</p> <p>i. Injunctions — Mandatory Weit.</p> <p>The authority to grant an ex parte mandatory injunction in any .case is' very doubtful. .</p> <p>3. Equity.</p> <p>Equitable relief can be invoked only when there is no adequate legal remedy.</p> <p>4. Same — Peinciple Applied.</p> <p>A complaint against a ditch company by the owner of a water right therein which alleges its failure to deliver the water, that plaintiff's growing crops would be lost unless water was furnished, but which contained no allegation of insolvency of the corporation, shows on its face that the remedies at law were adequate, and fails to confer jurisdiction, in equity.</p> <p>5. Same.</p> <p>Where the complaint for an injunction contained nothing bringing the" matters within the jurisdiction of a court of equity, held that consent could not confer jurisdiction, and that the entire proceeding was irregular and void.</p> <p>6. Injunction — When not to be Made Peepetual.</p> <p>A final injunction enforcing the performance of a contract to furnish water for irrigation should be so limited in its operation as to be coextensive with the existence of the contract.</p>

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