Volume 60 — Colorado Reports

<p> Original Proceedings in Prohibition. </p>

<p>Error to Grand, District Court. Hon. Charles McCall, Judge.</p>

<p>The ease ruled by the opinion in the People ex rel. Burke v. Vie District Court, ante.</p>

<p>Error to Adams District Court. Hon. H. S. Class, Judge.</p>

<p>1. Negligencs — Examples. One operating an auto car sees a street ear standing to receive passengers. He fails to cheek his speed until too late to avoid injury to one attempting to board the street ear. He might have stopped his car upon first view of the street car. Held a clear ease of negligence on the part of the chauffer. (48.)</p> <p>2. Master and Servant. — Master’s Liability for Misconduct of Servant. Whether a servant whose misconduct occasions injury to a third person, was, at the time, acting within the scope of his employment, is to be determined by a consideration of the attending facts and circumstances. The question is, Was he at the time acting within the express or implied authority conferred upon him, considering the nature of the service required of him, the instructions which he received, and the circumstances under which the act complained of occurred. (48, 49.)</p> <p>The question is generally one for the jury. (51.)</p> <p>3. -Chauffer Operating an Auto Car — Presumptions. When a chauffer who has general control of his master’s car is operating it in the usual manner, and in such usual operation occasions injury to one upon the public highway, a prima facie case that he was acting within the scope of his employment is established; and the burden is upon the master to overthrow this presumption. (53, 54.)</p> <p>The evidence examined and held sufficient to charge the master.</p> <p>4. Evidence — Compentency—Discrediting Witness. A witness for defendant being cross-examined as to statements imputed to him as made shortly after an accident, attributed to his negligence, professed a want of recollection. The statement so imputed to him tended to impeach his testimony. Held that plaintiff was entitled to show that in fact the witness has made such statements. (57.)</p> <p>5. .Appeal and Error — Where the Writ of Error Lies. Where, after a verdict for the plaintiff, a new trial is improperly granted plaintiff may have á writ of error. (58.)</p> <p>6. ——- What May he Assigned for Error. Incompetent testimony introduced by the plaintiff in error is not assignable as error. (49-51.)</p> <p>7. --r Judgment. Where, after verdict for the plaintiff upon sufficient competent testimony and proper instruction, a new trial is improperly granted — the Court of Review, reversing the judgment awarded new trial. (59.)</p>

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

<p>Error to Weld District Court. Hon. Neil F. Graham, Judge.</p>

<p>1. Master and Servant — Master’s Duty as to Place of Work.</p> <p>The rule requiring of the master reasonable eare as to the safety of the servant’s place of work is generally inapplicable where the servant is himself making the place of work, and the conditions are constantly changing. (89.)</p> <p>2. -Oastom — Duty of Miner as to Place of Work.</p> <p>A general custom that the miner shall assume the duty of keeping safe the place where he works, binds the miner who has knowledge thereof, in the absence of any positive rule of law to the Contrary. (90.)</p> <p>3. Instructions: — Construed. Action by a miner against the mine owner for an injury attributed to a fall of rock in the room where plaintiff was working. Plaintiff was engaged in pulling pillars. The injury occurred while he was' about ten feet from the pillar at which he had been working, and while he was upon a track used for removing the coal. Defendant gave evidence of a general custom that the duty of maintaining in safety every part of the place of his work rested upon the miner. The court admitted this evidence, only to enable the jury to determine whether the parties had used ordinary care, and in the instructions repeatedly mentiond the duty of the master to keep the “passage-ways” safe, though the only “passageway” mentioned was the track specified.</p> <p>There was no instruction as to what was a “passage-way,” within the rule. Seld that the effect of the charge was to advise the jury that the laiv required the master to safe-guard the track, regardless of the custom. (91, 92.)</p>

<p>1. Notice — Defined. Whatever is sufficient to put a party upon inquiry is generally regarded as notice of all facts that reasonably diligent inquiry would'have disclosed. (94.)</p> <p>Ignorance attributable to a failure to make inquiry is deemed equivalent to knowledge. (96.)</p> <p>Eaeh ease must be governed by its own circumstances. (96.)</p> <p>2. ■ — .— Possession of lands. Plaintiff received and placed upon record a conveyance, which, by mistake of the scrivener, failed’to deseribe’the premises which he had purchased.</p> <p>A year later the defendant levied upon the premises' actually purchased, an execution against the former owner, grantor of plaintiff.</p> <p>Plaintiff immediately upon receiving the conveyance assumed possession, paid the taxes, took out insurance, rented the premises, collected the rents, and during all the time openly treated the property as his own.</p> <p>Defendant’s levy was made without any prior inquiry.</p> <p>Held that though the premises were unoccupied on the day of the levy, the prior open possession of plaintiff put the defendant upon inquiry, and plaintiff having received from the former proprietor, defendant in the execution, a conveyance correctly describing the premises the title was quieted in him. (94-96.)</p>

<p>1. Maxims — A Vain Thing Not Required. Equity will not direct what it is clear is not, or may not be, of benefit to those demanding it, (108.)</p> <p>2. Equity — Remedy at Law. The return to the stream of .water unlawfully diverted at a prior date will not be deeree4 where such return will not, at the time, be of benefit to the complaining party, and where it is problematical whether it will be so in the future. (107, 108.)</p> <p>3. Injunction — To Restrain the Unlawful Diversion of Water. An appropriate for direct irrigation allowed an injunction to restrain the water commissioner from diverting water for storage by junior appropriators, where the water in the stream is not sufficient to supply the needs of such senior appropriate'.</p> <p>Neither the possible removal of the water commissioner for his misconduct, nor an aetion at law for damages, afford adequate relief in such ease. (108.)</p> <p>4. Irrigation — Division Engineer — Towers—Statute Construed. By Rev. Stat. sees. 3332-3344, 3350, the several decrees for the adjudication of priorities in an irrigation division are to be treated as one, and the water distributed accordingly. To effect this, the Division Engineer is vested with control over the Water Commissioners in his division. Where the engineer directs a commissioner to cease supplying water to priorities post-dating a specified date, it is the duty of the commissioner to obey such order, and he is without authority to disregard it, even though, by a sudden rise in the stream he is of the opinion that there is sufficient water to supply the volume required by the order. It is his duty in such case to report the change of conditions and await the direction of his superior. (111.)</p> <p>An appropriator injured by the Water Commissioner’s disregard of the orders of the Division Engineer may be awarded an injunction against the commissioner,■ to compel obedience to such orders. (111.)</p> <p>But it appearing that the commissioner’s conduct was not wilful, but inspired 'by a mistaken opinion as to his duty, without instigation of the appropriator profiting by his mistake, it was held the injunction should not have been granted. (112.)</p>

<p>Error to Denver District Court. Hon. James H. Teller, Judge.</p>

<p>1. Criminal Law — Assault With Intent to Pape — Evidence. Neither exposure of the person of the female assaulted, expression of the desire of sexual intercourse, outcry of the female, nor corroboration of her testimony, is essential to a conviction. (145, 146.)</p> <p>2¡ - Complaint of Prosecutrix, is merely a circumstance to be considered by the jury in weighing her testimony. Timely complaint tends to corroborate her testimony, while her silence has the opposite effect. (144.)</p> <p>The rule that the details of the complaint made by the prosecutrix are not admissible has no application, where the complaint was involuntary, being made to the District Attorney, at the instance of the Humane Officer. (143.)</p> <p>3. - Error — Harmless Error. A conviction upon sufficient competent evidence will not be reversed for the improper admission of testimony which could not have been prejudicial to the accused. (146.)</p> <p>4. Insíkuction — Construed. Prosecution for an assault with intent to commit rape upon a female under the age of 18 years. The jury were charged that if they believed from the evidence, beyond a reasonable doubt, that the accused committed an assault upon a female under the age of 18 years, ‘ ‘ to-wit, of the age of 15 years, ’ ’ etc., they should find a verdiet of guilty. The words quoted were held mere surplusage and not misleading. (145.)</p>

<p>Error to Boulder County Court. Hon. E. J. INGRAM, Judge.</p>

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

<p>1. Criminal Law — Instructions—Insanity—Delusions.</p> <p>Indictment for Wilful Murder, defense insanity.</p> <p>The court instructed jury that all insane delusions ‘ ‘ may be considered in connection with other evidence tending to show insanity.” It was contended that as the delusions of the prisoner detailed in the evidence were in no way connected with the homicidal act, or related to the deceased, the instruction was improper, as in effect advising the jury that unless the prisoner’s delusions were connected with, and caused the fatal shot, he must be guilty. But the several phases of the defense being clearly submitted to the jury by other points of the charge, and the jury expressly told that if, from all the evidence, they had a reasonable doubt as to whether, at the time of firing the fatal shot, the prisoner was capable of forming in his mind the intent to commit murder, they must acquit, the contention was overruled. (168, 169.)</p> <p>2. Trial — Voluntary Peinarles of Witness Prejudicial to the Accused. To have advantage of such impropriety counsel must objeet at the time, move to strike it out, or, at some time during the trial, pray an instruction to the jury to disregard it. (170.)</p> <p>3. Error — What May Be Assigned for Error. Sustaining an objection to a question whieh is afterwards withdrawn, so that the witness is permitted to answer it is not assignable as error. (170, 171.)</p> <p>4. Evidence — Insanity. Prior to the homieide the prisoner had a fight with one Clark. Conversation between Clark and a partner of the murdered man, as to this fight, which had not come to the knowledge of the prisoner before the homicide, was held immaterial. (171, 172.)</p> <p>Where in a criminal prosecution insanity is the defense, the aets, conversations, and exclamations of the accused may be shown, as indicia of his mental condition. (172, 173.)</p> <p>5. - Immaterial Matter. One who inquires as to immaterial matter must accept the answer given. He is not permitted to contradict it. (172.)</p> <p>6. Experts — Examination of. 'Whether, upon the question of insanity, an expert witness is permitted to detail the facts of particular eases of which ho speaks, not decided. But held that in view of all the evidence in the reeord, statements made by experts relative to particular cases whieh had come within their observation were clearly without effect upon the conclusions' of the jury as to the prisoner’s mental condition. (175, 176.)</p>

<p>1. Attobnets — Judicial Discipline. The authority of the courts to discipline attorneys for professional misconduct, either by suspension or disbarment, is inherent, and has been held not subject to statutory regulation. (186.)</p> <p>2. -Confusing Trust Funds. With private moneys is highly censurable. (182.)</p> <p>3_ _ Unprofessional Conduct — Punishment. The degree of punishment may be varied from mere rebuke to disbarment, according, to the circumstances.</p> <p>The respondent represented one who had been convicted of felony, and received from the mother of the accused a sum of money to be applied to the cost of preparing a transcript of the evidence, and the record, as the foundation of an application to the Supreme Court for a writ of error. He neglected the matter, no transcript was prepared, and his client was committed to the penitentiary. He failed to return the money, alleging that the mother of the convict had consented that he should apply it upon a balance of fees due him. This was contradicted by the lady; but the testimony was conflicting and the court was not able to resolve the question against respondent.</p> <p>Respondent was a man of about fifty-six years of 'age, and had been engaged in the practice of law as his only occupation for many years. The record disclosed no other instance of unprofessional conduct, and he pleaded illness in excuse of his neglect.</p> <p>No complaint against him was presented until the lapse of two years from the occurrences, and no testimony was taken until nearly three years thereafter. The court were unable to say that there was an intent on the part of respondent to wrong his client, but in view of the whole reeord were impelled to the conclusion that his conduct was so grossly negligent as not to be excused.</p> <p>It was therefore ordered that respondent be suspended from the exercise of his profession for the space of six months. (181-188.)</p> <p>The court observe upon the negligence of those having charge of the complaint in not pressing it to a hearing at an earlier date. (184.)</p>

<p> Error to the Court of Appeals. </p>

<p> Error to the Court of Appeals. </p>

<p>Error to Pueblo County Court.. Hon. Frank G. Mirick, Judge.</p>

<p>1. Bail — Surrender. An accused person released on bail, is, in contemplation of law, in the custody of his sureties. They may at their pleasure seize and surrender him to the sheriff of the county in which the recognizance was taken, at any time before forfeiture and execution ordered against them. If, at the same time, a certified copy of the recognizance is delivered to the sheriff, it is his duty to take the accused into custody, and, in writing, acknowledged the surrender. (204, 205.)</p> <p>2. - Seeond Arrest of Principal — Effect. The arrest of the principal</p> <p>upon alias capias, without declaring a forfeiture of the recognizance, discharges the sureties. The subsequent escape of the principal is not material. (205, 206.)</p>

<p>Error to Denver District Court. Hon. Charles C. Butler, Judge.</p>

<p>1. Criminal Law — Consolidation of Causes. Informations charging the robbery of different persons, at the same time and place, are properly consolidated for trial. (211.)</p> <p>2. -Effect of Consolidation. On conviction each offense is to be visited by the punishment provided by statute. (212.)</p> <p>3. - Evidence — Other Crimes. In the trial of an accused person evidence of crimes or misconduct having no relation to the offense charged in the information, and manifestly tending to prejudice the jury against the prisoner, was admitted over the prisoner’s objection. There being evidence to establish an alibi, the conviction was reversed, though the record exhibited sufficient competent evidence of the prisoner’s guilt. (212, 214.)</p>

<p>Error to Mesa District Court. Hon. Charles Cavender, Judge.</p>

<p>Error to Denver District Court. Hon. John A. Perry, Judge.</p>

<p>Error to Teller District Court. Hon. W. S. Morris, Judge.</p>

<p>Error to Routt District Court. Hon. John T. Shumate, Judge.</p>

<p>Error to Denver Juvenile Court. Hon. Ben B. Lindsey, Judge.</p>

<p>Error to Denver District Court. Hon. John A. Perry, Judge.</p>

<p>Error to Larimer District Court. Hon. Robert G. Strong, Judge.</p>

<p>Error to Denver District Court. Hon. James H. Teller, Judge.</p>

<p>1. Railway Company — Injury to Animals on Trade. Where an animal is near to the tracks of a railway, and, frightened by an approaching train, attempts to cross the track, but not until the train is so near that the engineer is unable to come to a stop, with safety, the railway company is not liable for the death of the animal which ensues. (261, 262.)</p> <p>2. - Statute Construed — Fencing Act. Injury to an animal within the yard limits of an established station. It is not required by the statute (Laws 1911, e. 135), in order to the exoneration of the railway company, that the yard limits should be marked by sign or otherwise. (262.)</p>

<p>Error to Denver District Court. Hon. John A. Perry, Judge.</p>

<p>Appeal — From Justice of the Peace. Where, two being defendants, one prevails, and judgment being given against the other, he appeals, the plaintiff eannot, under Rev. Stat. sec. 3852, summon into the County Court the defendant who was acquitted in the court of the justice, and require him to renew his defense. (274-276.)</p>

<p>Public Officer — Town Trustee Unlawfully Participating in Contract With Town. ■ A town trustee does not incur the penalty prescribed in secs. 4994, 4995 of the Revised Statutes, by merely voting in the board meeting to pay a bill for supplies purchased by the town from a corporation in which he is a stockholder and director. Construing the statute with reference to* the title, it manifestly applies to formal and express contracts in terms agreed upon, and awarded upon bids. (280.)</p> <p>Construed to ineludé'implied and informal contracts, such as that in question, the statute would be unconstitutional, because not included within the title. (281.)</p>

<p>1. Statutes — Construction. In construing a statute the court is controlled by the words thereof. AVith the wisdom, policy, or justice of the enactment, the court has no concern. (283.)</p> <p>The history of the enactment is a matter proper for consideration, in seeking its intent. (283.)</p> <p>2. Executors and Administrators — Orphan’s Allowance. See. 7223 of the Revised Statutes has not the effect to authorize an allowance to the minor orphan of a deceased mother. (284, 285.)</p>

<p>1. Mechanics Lien — Construction of Statute. The statute is equitable in its nature, and to be liberally construed; but it is not to be extended by construction to cases not within its provision. (287.)</p> <p>2. -Labor Furnished to a Contractor, gives no lien for its value. (288.)</p> <p>3. -Interest. The owner of the premises upon which an improvement has been made by á contractor is not personally obligated to one providing materials to the contractor, either for the value thereof, or for interest thereon.</p> <p>But if there remains in the hands of the property owner, moneys due the contractor sufficient to discharge both the value and interest, interest may be allowed out of such funds. (288.)</p> <p>Interest is not to be allowed where the right of third persons will be injuriously affected. (288.)</p>

<p>Error to Denver District Court. Hon. John H. Denison, Judge.</p>

<p>Husband and Wife — Living Separate — Susband’s Liability.</p> <p>Where the husband, for the misconduct of the wife, lawfully separates himself from her, he is not chargeable for necessaries furnished her. (291.)</p>

<p> Error to the Court of Appeals. </p>

<p>Error to Denver District Court. Hon. James H. Teller, Judge.</p>

<p>Error to Phillips District Court. Hon. H. P. Burke, Judge,</p>

<p>Error to Douglas District Court. Hon. W. S. Morris, Judge.</p>

<p>1. Deeds — Confirmatory—Acceptance—Effect. Controversy existing between two claiming tinder a common grantor, as to the boundaries of the tract first conveyed, the junior grantee executed a conveyance to the senior, for'lands particularly described, expressed to be “in confirmation of” the former conveyance, of “the same lands,” from the common grantoi. This deed was accepted by the senior grantee. Held that by the acceptance of this confirmatory deed the senior grantee was limited to the boundaries set down therein. (311.)</p> <p>2. -Construction — Subsequent Conveyance of Grantee — Effect. M., being the owner of an extensive tract of lands, executed to W. a conveyance of lands within such traet, by a vague and uncertain boundary. A subsequent grantee of the whole tract, from M., executed to W. a conveyance by particular boundaries, expressed to be in confirmation of the former conveyance of Al. Shortly after accepting the confirmatory deed, W. executed a mortgage of his land, describing it precisely as in the confirmatory deed. 77eld in effect, a confession on the part of W. that the confirmatory deed correctly described the land to which he was entitled. (313.)</p> <p>3. Continuance — Absence of Officer of a Corporation Party, is no ground to continue a cause, where the result depends upon the legal effect of certain muniments of title. (314.)</p> <p>40. Appeal and Error — Party Bound by Position Below. A party will not be permitted to depart, in the court of review, from the position assumed below. (314.)</p>

<p>1. Goííveyakce — Conditions. The proprietor of lands may, in disposing thereof, insert in his conveyance any condition not malum in se, nor malum prohibitum. (317.)</p> <p>A condition prohibiting the sale, within the limits of the land granted, of intoxicating liquors, except for medicinal purposes, and providing for a forfeiture 'of the estate, for the violation of this condition, sustained. (316, 317.)</p> <p>2. - Conditions — Restraint of Trade. The proprietors of a town site, near a coal mine where many miners -were employed, borrowed money from a brewing company, upon mortgage of the whole town site except certain blocks and lots and conveyed the lots to the brewing company, agreeing to insert in the conveyance of every other lot, a condition prohibiting the sale thereon of intoxicating liquors. The purpose of the loan was to enable the town site company to erect cottages for those employed in the coal mine, and induce their settlement in the town, and not to prohibit absolutely, the sale of intoxicating liquors, but only to restrain it. The condition was sustained. (318.)</p> <p>3. Forfeiture — Demand of Possession, is not necessary to sustain an action for the recovery of lands, the title to which has been forfeited by the violation of a valid condition in conveyance thereof. (319.)</p> <p>4. Intoxicating Liquors — Sale of — Not of Common Eight. It has always been recognized with us that the interests of society require the strict regulation of the traffic in intoxicating liquors, which may extend to prohibition. (318.)</p>

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

<p>Error to Morgan District Court. Hon. H. P. Burke, Judge.</p>

<p>Error to Denver District Court. Hon. James H. Teller, Judge.</p>

<p>Error to Jefferson District Court. Hon. H. S. Class, Judge.</p>

<p>1. Courts — Control of Records. Courts of record have entire control of their orders and judgments during the term of the entry thereof. A judgment of discontinuance improvidently entered may be vacated at any time during the same term. (353.)</p> <p>2. Attachment — Affidavit—Bond—Amendment. An affidavit for an attachment, not subscribed, is a nullity. So an attachment bond without sureties. The entire proceeding thereon is void, and there is nothing to amend. (353, 354.)</p> <p>3. Appeals — Approval of Bond. Where, simultaneously with, or immediately after, the filing of an appeal bond, in an appeal from a justice, the county judge acting as eleark, issues a summons on appeal and a supersedeas, it will be presumed that he approved the bond, in his capacity of clerk. Adams v. Vedker, SO Colo. 237, distinguished. (355.)</p> <p>4. Appeal Prom Justice — Effect. A perfected appeal from the judgment of a justice gives jurisdiction of the person of the appellant, and waives the entire want, of process in the justice court. (356.)</p>

<p>Error to Las Animas District Court. Hon. A. Watson Mc-Hendrie, Judge.</p>

<p>Criminal Law — Information Construed. A eount averring tliat the accused on a day named, at a' county designated, “with intent to cheat and defraud” another who is named, “that he the said” accused, was the agent of an insurance company named, makes no charge of any offense. The words of accusation cannot be supplied by inference. Conviction reversed. (366.)</p>

<p>1... Estoppel — By Deed. One claiming lands by grant from a particular person is not permitted to deny the title of such person, when asserted by lhs adversary. (368.)'</p> <p>'2.' Quieting Title — Plaintiff’s Title. Plaintiff deraigning title from the ■'same grantor under whom defendant claims is not required to show title in [the-common grantor. -(368.)</p> <p>Any acknowledgment of defendant amounting to an admission of x>lain-tiff’s title, ipakes a prima facie case and casts upon defendant the burden of overthrowing it. (369.)</p> <p>3. Void Deed — Cancellation. A deed shown to be a forgery may be can-celled where this appears necessary for plaintiff’s full relief. (370.)</p>

<p>1. Constitution — Construction. The intent of a constitutional provision is to be ascertained from the words thereof, according to every word its plain and obvious meaning, in the sense in which it is commonly used. It is not to be assumed that the people in framing or adopting a provision of the fundamental law intended that it should contain a meaning not expressed, or any meaning different from that of the words employed. (377.)</p> <p>Each provision of the constitution is to be read in connection with all the others, irrespective of the date of adoption. (380.)</p> <p>2. --- Amendments. An amendment which unmistakably revises all former provisions upon the subject thereof, and is evidently intended as a substitute therefor, operates as a repeal of such former provisions, although it contains no express words to that effect. (380.)</p> <p>3. Intoxicating Liquors — Article XXII, of the Constitution, applies to the whole state, and supersedes all possibility of authority in the City of Denver to regulate the traffic in intoxicating liquors, contained in article XX, and the amendment thereof. Laws 1913, 669. (377.)</p> <p>A license issued by such city assuming to authorize the sale of intoxicating liquors on and after January 1, A. D. 1916, is a nullity. (381.)</p> <p>4. Certiorari — Where Allowed. Semble, that certiorari lies on the relation of the Governor to compel a municipal corporation to annul a void license for the sale of intoxicating liquors.</p>

<p>Error to Jefferson District Court. Hon. H. S. Class, Judge.</p>

<p>1. Estoppel — By Deed, — Beoitalx. A recital contained in a deed is not an estoppel unless material to the purpose of the instrument, nor unless it appears that it was intended to declare and settle a fact. (401.)</p> <p>An electric- lighting company issued a series of bonds, the proceeds of which were to be applied to rebuild and enlarge the plant, complete payment therefor, and add an equipment for the manufacture of ice, and, to secure the payment of these bonds, executed a deed of trust conveying a tract of land upon which the plant was situated, and "the following described personal property” — here was enumerated a list of appliances and articles of machinery manifestly appropriate for the operation of the lighting plant. The articles described as personalty were partly in eourse of removal, from a former location, and partly in transit from the East, where they had been purchased. Some of these articles were connected in the description with their "settings” or "foundations.” The deed conferred upon the trustee, iri case of default made by the lighting company in any of its covenants, authority to operate the plant as an entirety. It was not acknowledged as a chattel mortgage, and, though the indebtedness secured exceeded $2500.00, the affidavit required by the statute, in such case, was not filed. Held that the trustee was not estopped by the inapt description of the machines and appliances, as personalty, to claim that in fact they were part of the plant and covered by the lien of the deed of trust. (402.)</p> <p>2. Mortgage oe Lands — Lien Follows Things Severed. The trustee in a deed of trust of a lighting plant held entitled to follow, by bill in equity, machinery and appliances unlawfuly severed from the lands, and impress thereon, or upon the proceeds thereof, the lien of the deed of trust. (403, 405.)</p> <p>3. Land — What Things Are Part Thereof. Machines and appliances intended for and necessary to the completion of a manufacturing plant, held parcel of the realty, though not attached, and some thereof not yet upon the ground, but in transit from eastern markets. (402, 403.)</p> <p>4. Trover — When the Action Lies. Only when the plaintiff has, at the time of the conversion, an immediate,. absolute and unconditional right of possession. (404.)</p> <p>5. Replevin — When the Action Lies. The aetion is not available to one who has not the possession, nor the right of possession, of the goods, at the time of their removal, and has not since acquired such right. (404.)</p>

<p>1. Irrigation District — Taxes For. Taxes regularly assessed and levied for a duly organized and lawfully existing irrigation district are of equal dignity with other taxes, and should be respected, and the collection thereof enforced, as in the ease of other taxes. (409.)</p> <p>2. Injunction — To Restrain the Collection of Taxes. Equity entertains actions to enjoin the collection of taxes only where the case presented is within some well recognized braneh of equity jurisprudence. In view of the public interest and the provisions of the statute (Rev. Stat. sec. 5750), which affords a complete remedy to one entitled to relief, only under the most exceptional and unusual circumstances will the action be entertained. (410.)</p> <p>Payment or tender of the tax assailed must be averred. (411.)</p> <p>3. Pleadings — Construed. A complaint seeking to restrain the collection of taxes for an irrigation district was entitled in the name of a single land owner, "and others similarly situated;” but it was not averred that therv, were any others in this class. Held that the mere inference afforded by the title was not sufficient to warrant the conclusion that a multiplicity of suits would be avoided, or to sustain the action as one of equitable cognizance. (410.)</p> <p>Bill to restrain the collection of taxes levied for an irrigation district, pursuant to the statute (Rev. Stat. secs. 3457, 3459), averred, against the tax levied for the general, expense fund, that the district was not the owner of any irrigation system, and had no need of a general expense fund. Held mere conclusion of the pleader. (410.)</p> <p>4. -Irreparable Injury, as the ground of an application for injunctive relief must appear by averment of issuable facts, showing that the Tesult feared will ensue if the injunction is denied. (411.)</p> <p>5. —— Amendment. Opportunity had been repeatedly afforded to the plaintiff in the court below, to amend her complaint, and had been persistently rejected. In reversing a judgment in her favor direction was given that the action be dismissed. (412.)</p>

<p>1. Appeal and Error — Abstract. A ruling to which, so far as the abstract shows, no objection was made, will not be reviewed. (414.)</p> <p>2. - Questions Not Presented Below, are not considered. (417.)</p> <p>3. AIechaxics Lieh — To What Lands the Lien Extends. A placer containing gold-bearing sand or gravel, is ‘ ‘ a deposit yielding metals and minerals ’ ’ within the meaning of Rev. Stat. sec. 4028. (414.)</p> <p>4. -Dredge an Improvement. A 'dredge for the operation of a placer is an improvement of the land within the meaning of the statute. Those who furnish material, machinery or appliances, for the construction thereof, or perform labor therein, are entitled to the lien conferred by the statute. (415.)</p> <p>The placer forming a single undivided property intended to be worked by the dredge, the lien extends to it as a whole. (417.)</p> <p>5. --Improvement by Holder of an, Option, in which there is a condition requiring the construction of a particular improvement, gives a lien extending to the land, as well as the improvement. Shapleigh v. Hull, 21 Colo. 419, followed. (416.)</p> <p>6. ——• Purchaser With Notice Affected. One who purchases land after a mechanic’s lien has attached thereto, having knowledge of the facts, is affected by the lien. (416.)</p>

<p>Error to Welcl District Court. Hon. Neil F. Graham, Judge.</p>

<p>1. Criminal Law — Insanity as a Defense. One whose mind is so diseased that he is incapable to distinguish the right from the wrong of his act, or being able to so distinguish, is, by reason of the mental impairment, incapable of choosing the right and refraining from the wrong, is not accountable, and this, whether such mental impairment is manifested by insane delusions of whatever nature, by irresistible impulse, or otherwise. (433.)</p> <p>The doctrine of McNaughton’s case, 10 01. & E. 200, as to what delusions will suffice to establish the defense of insanity, repudiated. (429-433.)</p> <p>2. --Evidence — Admissibility. Indictment for murder. Defense insanity. Testimony as to remarks made by deceased, and telephonic communications between deceased and others, as to the conduct of the prisoner, previous to the homicide, held inadmissible. (434.)</p> <p>The defense being insane delusions indulged by the prisoner that deceased had betrayed him when acting as his attorney, and in other respects had done him serious wrong, held that testimony as to the relations between the prisoner and deceased, by those having-personal knowledge of the matter, were admissible — more properly in chief than in rebuttal. (434.)</p> <p>3. Error — Misconduct of Prosecutor. Where, in the trial of an indictment for murder, the defense being insanity, a statement by the special prosecutor, in the closing argument to the jury, that the defense of insanity is ■“a disgrace to American jurisprudence,” is highly improper and reprehensible. (434, 435.)</p> <p>4. --- Bill of Exceptions. Improper statements made to the jury in the closing argument, not set forth in the bill of exceptions, but merely by affidavit, will not be considered. (434.)</p>

<p>Criminal Law — Fair Trial. Information for obtaining money by false pretenses. The only testimony for the People was that of the proseeuting witness, flatly contradicted by the accused. There was no corroboration of either. Irrelevant testimony, highly prejudicial to the accused, was received, and the assistant district attorney, in his argument to the jury, indulged in injurious reflections upon the conduct of the accused, unwarranted by the testimony. The court neither rebuked the attorney nor directed the jury to disregard the injurious statement. Held, that the accused had been deprived of his constitutional right to a fair trial. Judgment reversed. (441, 442, 449.)</p>

<p>Error to Arapahoe District Court. Hon. H. S. Class, Judge.</p>

<p>1. Life Insurance — Knowledge of Local Agents Attributed to Insurer. Action upon a life policy. Defense, false statements of the insured in Ms application. The falsity admitted; but, being known to the medical examiner and local agent, at the time, this knowledge was, by presumption, attributed to the insurer. (461.)</p> <p>2. - Insurer Estopped to Assert False Statements of Insured in Eis Application, where, with knowledge of such falsity, it has accepted the risk and received assessments from the insured. (461.)</p> <p>3. Evidence — Presumptions. Presumed that the medical examiner of an insurance company is a competent physician, and made a thorough exami nation of an applicant for insurance, whose application he approved, and that sueh examination brought to Ms attention physical ailments and infirm ’ties, of which, in an action upon the policy, were admitted to have then existed. (461.)</p>

<p>Error to Morgan District Court. Hon. H. P. Burke, Judge.</p>

<p>1. Malicious Prosecution — Diligent Inquiry Required Before Presenting Accusation of Crime. One wlio causes the arrest of another upon accusation of larceny, merely upon the report of a third person, making no inquiry of the accused, may well be convicted of malicious prosecution. (465, 466.)</p> <p>2. - Advice of Counsel, is a defense, only where the party has first exercised reasonable diligence to ascertain the facts, and makes to his counsel a full, true and candid statement of the facts so ascertained. (465.)</p> <p>3. Appeal and Error — Abstract. A ruling as to the admission of evidence, or as to instructions, to which the abstract shows no exception, will not be considered. (466.)</p>

<p>1. Equity — Purchase Bona Fide. W., residing in another state, held title, according to the record, to a tract of land of the value of $2,000. In fact, he had conveyed it to his son. On representation of plaintiff that it was "necessary to fix up the title," he executed to plaintiff a quit-claim deed, receiving therefor a sum the amount of which was in dispute, but not exceeding $10. Nothing was ever said or written to him about the purchase of the land, and he executed the quit-claim deed under the belief that he was thereby correcting a defect in the conveyance to his son. Held plaintiff was not a bona fide purchaser. (467.)</p> <p>2. New Trial — Newly Discovered Fvidence, immaterial to the issue, is no ground for a new trial. (468.)</p> <p>3. -Discretion. Whether a new trial shall be ordered, after judgment, is within the discretion of the trial court. Where the judgment is upon sufficient evidence the action of the court below will not be reviewed. (468.)</p>

<p>Error to Denver Juvenile Court. Hon. Ben B. Lindsey, Judge.</p>

<p>Evidence — Receipt—Evidence to Overcome, must be clear and convincing.</p> <p>Action upon a life policy. Defense non-payment of assessments. The evidence examined and held insufficient to overthrow the prima facie case made by certain receipts produced by plaintiff. (483, 484.)</p>

<p>1. Appeal and Error — Findings of Trial Court — Effect. A finding of the trial court, which by its terms, is not based upon evidence, but upon an erroneous interpretation of a record, is entitled to no weight. (486.)</p> <p>2. Practice — When a Paper is Filed. It is essential to the filing of any document that it should be deposited with the officer entitled to receive it, with notice to him of the purpose, and with intent that he shall retain it.</p> <p>An appeal bond approved by a justice of the peace, but which is not deposited with- him, but carried to the County Court, is not filed with the justice and has not the effect to perfect the appeal. (486, 487.)</p> <p>3. Justice op the Peace — Appeal—Sow Perfected. Ho bond in appeal was filed with the justice, and though a bond was filed in the County Court and a supersedeas issued, no summons was issued, and the supersedeas was afterwards dismissed. Seld no appeal was perfected in either of the modes prescribed by the statute. (Rev. Stat. sees. 3848, 3849.) (487.)</p>

<p>1. Criminal Law — Confidence Game — Conspiracy. Section 1783 of the Revised Statutes defines and declares two distinct offenses, the one to obtain money, and the other to attempt to obtain money, by any of the fraudulent practices therein denounced. The mere attempt to accomplish the prohibited result is as much a crime as if the criminal purpose had been consummated. And under Rev. Stat. sec. 1742 an agreement to so attempt is a felony.</p> <p>The information charged that defendants did "conspire + * to commit a felony,” to-wit, "the feloniously, fraudulently, etc., attempting to obtain from, etc.,” certain moneys specified, "by means of the confidence game.” Held to aver, not a conspiracy to attempt a crime, but to actually commit one. (489, 490.)</p> <p>2. - Instructions — Failure to Bequest. Mere non-direction where no instruction is prayed is not error. (491.)</p> <p>3. - Words of Meaning Generally Well Understood, need not be explained, e. g. "attempt.” (491.)</p> <p>4. --Evidence — •Implements of Crime, of the character used to commit the crime charged in the information, found in the possession of the prisoner, may be exhibited in evidence against him. (491.)</p> <p>5. - Cross-Examination of Witness. A question which if answered in the affirmative may tend to discredit the witness is admissible. (492.)</p> <p>(i. -Presumptions. The court of review, in such ease, will not assume that the district attorney knew that the question would be answered in the negative, merely because he made no attempt to contradict the witness; nor will it be assumed that he was animated by any improper purpose. (492.)</p> <p>7. - Verdict — Technical Formality Not Iiaquired. A verdict is to be reasonably-construed, and should not be set aside unless necessity compels this result. Information for a conspiracy to attempt the. obtaining of money try the confidence game. Verdict "guilty of conspiracy to obtain money by the confidence game as charged in the fourth count.” Held that the manifest purpose of the jury was to declare the prisoner guilty as charged, and in view of Rev. Stat. see. 1986 judgment of conviction thereon was proper (492, 493.)</p> <p>8. - Bills of Exception. The provisions of the eivil code relating to bills of exception have no application in criminal prosecutions. (494.)</p>

<p>Error to Logan District Court. Hon. H. P. Burke, Judge.</p>

<p> Error to the Court of Appeals. </p>

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

<p>The ease ruled by the opinion in People v. Brown, No. 8338.</p>

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

<p>1. Railway Company — Duty at Highway Crossing. A Tailway company which permits an automatic bell, required by local ordinance, at a street crossing, to remain for a week out of repair, so that it fails to give the required signal of an approaching train, is guilty of negligence. (504, 505.)</p> <p>So if it allows a train to be moved over the crossing at a speed in excess of that prescribed by ordinance. (505.)</p> <p>In either case it is liable, if by reason of such neglect, as the proximate cause thereof, injury ensues to a traveler without fault on his part. (505.)</p> <p>2. - Contributory Negligence — Traveler at Highway Crossing of a Bail-road, The traveler who would pass over the tracks of a railway where they intersect the highway must listen, and look in both directions, before essaying to cross. Where there are several tracks he must maintain the same vigilance until all are passed. His diligence must cover the whole field of danger. (508, 509.)</p> <p>If, to his knowledge, a train is approaching, he is bound to ascertain whether it will probably reach the crossing before he can pass; and he must take into consideration the fact that trains sometimes exceed the legal rate of speed, and that appliances for the warning of travelers, e. g., gates, or automatic bells, are liable to be out of order. Common prudence forbids reliance solely upon such appliances. (509.)</p> <p>3. - A Buie of Law. The duty- so imposed upon the traveler, is, with us, a rule of law, and if the traveler fails therein it is the duty of the court to direct a verdict, save in those peculiar eases where the omission is excused. (510.)</p> <p>4. -Conduct of Bailway Company Excusing Negligence of the Traveler. Where misconduct of the railway company is alleged to excuse negligence on the part of the traveler, the acts or omissions relied upon must be of such character as not only to show negligence, but to exhibit a condition of apparent safety, so as to actually mislead the traveler to his injury, e. g., as where the traveler is invited to pass by the flagman (Denver Company v. Gustafson, 21 Colo. 393), where the traveler is injured by an engine which approaches hidden from his view, by a train which precedes it (Nichols v. Chicago, etc., Co., 44 Colo. 501). (510, 511.)</p> <p>The evidence examined and the injured party held guilty of culpable negligence, not excused by any act or omission of the railway company.</p> <p>5. -Where the Question is for the Jury. Where, from the evidence presented, reasonable men of fair intelligence may draw different conclusions, the question must be left to the jury; but if it is clear that only one inference can reasonably be drawn from the facts in view the question is one of law and for the court. (50(5.)</p> <p>6. Municipal Ordinance — Construed. An ordinance required a signal bell to be maintained at a railway crossing, and prescribed that the bell should "begin to ring when the head end of any train moving toward the crossing” is at a prescribed distance therefrom. JTcld that the bell must continue to ring until the train has reached the crossing. (515.)</p>

<p>Error to Boulder District Court. Hon. Harry P. Gamble, Judge.</p>

<p>Error to El Paso District Court. Hon. J. W. Sheafor, Judge.</p>

<p>Error to Boulder District Court. Hon. Harry P. Gamble, Judge.</p>

<p>Error to Rio Grande District Court. Hon. A. Watson ' McHendrie, Judge.</p>

<p>1. Judgment — Record Construed, — Burden of Proof. Tlie recital, in a decree canceling a conveyance of lands, at the suit of the purchaser, for false representations inducing the purchase, that the plaintiff reposed confidence in defendant does not evidence that the burden of proof was at the hearing cast upon plaintiff. (559.)</p> <p>2. Fraud — Rescission of Contract — Decree. A decree which cancels all deeds and conveyances, executed pursuant to a purchase by plaintiff, induced by fraudulent misrepresentations of defendant, restores defendant to its original position. Semble a decree for reconveyance is unnecessary. (560.)</p>

<p>3. Pleadings — Judgment Upon, is not to be awarded unless it affirmatively appears that plaintiff: is without right. (566.)</p> <p>2. - Belief. The plaintiff: is to be awarded such relief as his averments, and the evidence, entitle him to, without reference to the prayer of his complaint. (568.)</p> <p>3. Statute op Ebauds — Not a Cover for Fraud. The statute is not to be invoked to sanctify the perpetration of a fraud. Plaintiff had contracted with an agent of defendant to purchase certain real estate, the property of defendant. Defendant knowing these facts, and that plaintiff was relying upon the contracts of the agent, as the contracts of defendant, received plaintiff’s money thereon, and appropriated it to its own use. Held that defendant was liable to plaintiff, at least, for the money which he had received. (568, 569.)</p>

<p> Originad proceeding in certiorari. </p>

<p>Auditor — Ffect of His Findings. Where the auditor of a eity, authorized thereunto by the law, audits and allows a claim legally chargeable against it, the eity will not be allowed to question the result, because of facts then existing, and unknown to the auditor, but which proper examination would have brought to his attention — no fraud, misrepresentation or effort of the adversary party preventing the examination,'being alleged. (574.)</p>

<p>Crimináis Law — Non-Support of Child — Evidence of Parentage. Where, in a prosecution under c. 179, of the Aets of 1911, the child in question was not born in wedloek, the prosecution has the burden of showing its parentage. The accused is entitled to deny that the child is his, and though a marriage with the mother is shown, he must be permitted t,o put in evidence that at the time of such marriage the woman was the wife of another. To exclude the evidence is error. (576, 577.)</p>

<p>Error to Routt County Court. Hon. Chas. A. Morning, Judge.</p>

<p>Error to Elbert District Court. Hon. W. S. MORRIS, Judge.</p>

<p>Error to Denver District Court. Hon. Charles C. Butler, Judge.</p>

<p>Error to Arapahoe District Court. Hon. H. S. Class, Judge.</p>

<p>Trial — Duty of Court to Instruct. In a case involving complicated issues it is essential to a fair trial that the jury should receive full, clear, and comprehensive instructions. To direct a finding for the plaintiff, "if you deem that the evidence justifies,” or the like, is wholly inadequate. To so charge, refusing all directions as to those features of the ease presented in the evidence, as to the claims of defeated party, is error. (596.)</p> <p>2. - Prejudicial Peinarles of the Judge in the Presence of the Jury. Action for the price of machinery sold under a written contract. In denying the plaintiff’s motion for a directed verdict, the judge presiding, in the presence of the jury, said, "I don’t like these technicalities. I have read over your warranty, and I don’t like its terms. * * * I think the terms of your warranty too harsh and technical. * * * There are too many technicalities in law-suits these days.” Held manifestly injurious to the plaintiff. (596, 597.)'</p> <p>3. Pleadings — Admissions By. Where the answer to a counter-claim presents a complete bar, and there is no reply, there'can be no judgment for the defendant upon such counter-claim. (597.)</p>

<p>Error to Garfield District Court. Hon. John T. Shumate, Judge.</p>