Volume 63 — Colorado Reports

<p>Statutes Construed — Penal Statute. The statute of another state allowing one who has paid usurious interest to recover double the amount of his payment is penal as to the usurer, but remedial as to the other party, and entitled to recognition and enforcement in the courts of this state.</p>

<p> Error to Pueblo District Court, Hon. C. S. Essex, Judge. </p>

<p>Seepage Watek — When Subject to Appropriation. Both plaintiffs and defendants were parties to a proceeding for the adjudication of priorities, under the statute. Defendants were awarded priorities to the waters of a certain stream, superior to those of the plaintiffs. Subsequently, by seepage from defendant’s ditch, water appeared in a certain gulch tributary to the stream in question. Plaintiff’s attempted appropriation of these waters conferred no right, the seepage being still part of the waters of the stream.</p>

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

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

<p> Error to Pueblo District Court, Hon. C. S. Essex, Judge. </p>

<p>Judgment — Collateral Attack. The judgment of a court having jurisdiction both of the subject matter and the person of the defendant is not open to collateral attack for mere error or irregularity, but only upon a showing that it is void, i. e., an absolute nullity.</p> <p>Bill to enjoin execution of a judgment rendered in an action in which the defendant was served with process, and appeared. Decree for plaintiff therein. Decree reversed, and cause remanded with instructions to dismiss.</p>

<p>1. Water Rights — Abandonment. The mere change of the conduit by which water is conveyed from the place of diversion to the place of use is not an abandonment.</p> <p>2. Change of Point of Diversion. Senior appropriator was permitted to change the point of diversion up stream. A junior appropriator, whose point of diversion was below both the original point of diversion of the senior, and that to which the change was allowed, was not injured by such change.</p> <p>3. Head Gate. Under e. 153 of the laws of 1911 the Water Commissioner may require every appropriator to install a head gate to his ditch so that the flow of water thereto may be regulated.</p>

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

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

<p>1. New Trial — Misconduct—Irregularity. A verdict to which any misconduct or irregularity, whether by the jury or one not of the panel, may have contributed, cannot be approved. Pending the trial of one indicted for wilful murder, a local newspaper printed a false statement that in the cell of the accused the sheriff had discovered implements and weapons manifestly evidencing a plot to escape, and to kill or disable any one interfering. This was brought to the attention of the jury, during the trial. Held, that it must be presumed to have influenced the minds of the jury. A finding of the trial court to the contrary was rejected, as without support either in reason or authority.</p> <p>2. Duty of the Trial Court. Loose practice in the control of the jury, exposing them to impressions produced by extraneous influences, censured.</p>

<p>Taxes- — Exemptions—Charitable Uses. Properties the rents and in-i come of which are devoted to the maintenance of a school are exempt from taxation under sec. 4, art. X of the Constitution. Three judges contra and one not sitting. Judgment affirmed pursuant to Code sec. 438.</p>

<p>1. Interstate Commerce — Who Employed in. A section hand employed, among other duties, in inspecting and repairing the track of a railroad devoted to interestate commerce, is while so acting, engaged in interstate commerce.</p> <p>2. Railroad Company — Negligence in Operation. Action for negligence occasioning the death of a trackman.</p> <p>The evidence examined and held sufficient to sustain a. verdict for the plaintiff.</p>

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

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

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

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

<p> Error to the Weld District Court, Hon. Robert G. Strong, Judge. </p> <p> On Rehearing, En Banc. </p>

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

<p> Error to Weld County Court, Hon. Fred W. Stover, Judge. </p>

<p>1. Pleadings — General Averment of Performance is permitted by the code (sec. 72).</p> <p>2. Non-performance of Conditions Precedent, must be expressly pleaded, Penn. Co. v. Ornauer, 39 Colo. 498, followed.</p> <p>3. Matter Contested but Not Pleaded. A defense actually urged and tried in the court below, will be considered in the court of review, though not pleaded.</p> <p>The evidence examined and held not to establish the contention that a defense not pleaded was in fact presented and contested.</p> <p>4. Surety Company — Undertakings of — Surety’s Liability. The surety is not exonerated by alterations or deviations from the exact terms of the contract, where no damages result.</p>

<p> Error to Denver County Court, Hon. E. J. Ingram, Judge. </p>

<p>Bail — Bond Taken by Clerk, pursuant to an express order of the court fixing the amount and directing that the surety be approved by the clerk, is a valid obligation.</p> <p>The act of approving the surety is a mere ministerial act, capable of deputation.</p> <p>People v. Miller, 2 Colo. 705; Haney v. People, 12 Colo. 245; Rupert v. People, 20 Colo. 424; Thompson v. People, 23 Colo. App. 205, distinguished.</p>

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

<p> Error to Pueblo District Court, C. S. Essex, Judge. </p>

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

<p>1. Statutes — Construction. Statutes prescribing the manner, form and time within which public officers shall discharge the public functions are regarded as directory, unless a different intent appears. Held, in view of the provisions of the act of 1893 (Rev. Stat, sec. 1375) that the act of 1891 (Rev. Stat., sec. 1216) must be held directory.</p> <p>2. Construed. A statute provided that the county commissioners of any county “which has or shall have” outstanding warrants, for the payment of which there are no funds in the treasury, shall, at the time of the annual tax levy, levy a sufficient tax, not exceeding, etc., for the redemption of all such unpaid warrants. (Rev. Stat., sec. 1375). Held to authorize a levy for warrants issued subsequent to, as well as before, the enactment of the statute.</p> <p>3. Taxation — County Purposes — Power of County Commissioners. Sec. 1 of chapter 54 of the laws of 1893 (Rev. Stat., sec. 1375) was enacted because it was found impossible to comply strictly with the provisions of the act of 1891 (Rev. Stat., sec. 1216), in all counties and at all times. In 1913, the commissioners of Arapahoe County levied a tax for the payment of certain outstanding warrants which had been issued in previous years, in excess of the annual appropriations, but in good faith, partly for materials furnished, and labor performed, for the necessary repair of damages occasioned to the roads and bridges of the county, by unprecedented floods, and partly by errors in judgment of the county board, and its inability to anticipate the exact amounts necessary to accomplish the purpose for which certain funds were created. Held that the levy was a lawful exercise of the authority granted by the statute.</p> <p>Judgment for the plaintiff in an action to recover a tax, reversed.</p> <p>White, C. J. and Bailey, J. concurred, but upon the ground that the action being in equity to restrain the disbursement of the tax by the county authorities, and this relief having been properly denied, the right to recover the tax being a mere incident to the equitable relief demanded, fell with it.</p>

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

<p>Divorce — County Court — Appeal to District Court. Decree in the County Court vacating a decree of divorce. Under Rev. Stat. Sec. 1536, an appeal lies to the District Court. The case not within Sec. 12 of c. 74 of the laws of 1915.</p>

<p>1. Constitutional Law — Revenue Bills. An act for establishing a general system of free schools, providing for the levying and collection of taxes as incident to the main purpose, is not within the condemnation of sec. 31 of Art.. V of the Constitution. Neither is a supplemental or amendatory act, looking to the same end.. Chap. 206, Laws of 1911, is not a bill for raising revenue within the meaning of the Constitution.</p> <p>2. Words and Phrases — Government, defined.</p> <p>3. Statutes — Duly of Court to Sustain. It is the duty of the courts to uphold a statute, unless clearly opposed to some provision of the fundamental law.</p>

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

<p>1. Contracts — Construed. A corporation organized to- construct an irrigating canal and reservoirs, executed a contract by which it agreed to sell to a party named, a water right, entitling him to 1.3 cu. ft. of water per second of time, for the irrigation of particular lands described. That corporation and one which succeeded it, failed, and the property passed to defendant. The contract for the water right, and the land and the water to be furnished under the contract, became vested in plaintiff.</p> <p>Defendant purchased other rights than those to which the original corporation was entitled and constructed reservoirs not contemplated in the original plan, expending in this manner a very large sum of money. Held that the contract was a binding servitude upon the canal, and the reservoirs constructed prior to defendant’s acquisition of the property, the canal and such reservoirs to be taken and considered as a system for supplying water under the contract; and that plaintiff was limited to this source of supply.</p> <p>The contract also provided that when a number of water rights equal to the estimated capacity of the canal should have been sold, it would issue to the holder of each right, shares of its stock bearing to the total stock the same proportion as the water right sold under the contract should bear to the number of water rights equal to the capacity of the canal, and that the purchaser of the water right named in the contract should accept the same; and that in case the volume flowing in the canal should be insufficient to supply all holders of water rights outstanding, the company might distribute the water among the holders of rights pro rata.</p> <p>The agreed capacity of the canal was 216 water rights of 1.3 cubic feet per second of time. Prior to defendant’s acquisition of the property only thirty rights had been sold. The purchasers of all these, except plaintiff, had accepted stock in the defendant, each in an amount sufficient to irrigate eighty acres of land. Plaintiff refusing to accept stock, held that in time of scarcity he was required to pro rate with the other holders of all the 216 water rights.</p>

<p>Criminal Law — Writ of Error by .the People. When an accused person is arraigned, tried and acquitted, he is, by the express words of the statute, allowing a writ of error to the people, not to be again put in jeopardy. (Rev. Stat., sec. 1977.)</p>

<p>Principal and Agent — When the Relation Exists. A store room of 'defendant was occupied by one Behen. Defendant had agreed that Behen might surrender if another tenant should be found to accept a lease upon the same terms, and employed plaintiff to secure such other tenant. Defendant solicited one Bloom to accept a lease of the premises. To bring the arrangement about it was necessary that Bloom should purchase the fixtures of Behen. Plaintiff participated in the negotiation between Bloom and Behen, and finally brought it to a successful issue. There being no evidence that plaintiff contracted with either Behen or Bloom for a commission, or made any demand upon either of them, held that his mere participation in the negotiations between them, did not convert him into the representative of Bloom for procuring the lease.</p>

<p>1. Judicial Opinion — How Contraed, as stating the law only as applied to the facts presented.</p> <p>2. Evidence — Witness—Competency. Holloway having executed to plaintiff a mortgage of lands securing a promissory note, sold the lands to Beatty, and Beatty executed to him a note and mortgage for deferred instalments of the purchase money. The latter note passed to Nesbitt, and from' him to his administrator. In the trial of plaintiff’s action to foreclose the first mortgage he was held competent to prove, even as against the administrator, the execution of Holloway’s note, and that it was unpaid.</p>

<p>1. Municipal Ordinance — Construed. An ordinance prohibiting the distribution of circulars or advertising matter, by one without a permit, and fixing the fee for such permit at $25.00 per annum, must be regarded as a measure for raising revenue, and not as a police measure to prevent the litter of the streets with waste paper.</p> <p>2. Interstate Commerce — Limits of. A traveling salesman, representing a non-resident manufacturer, in order to induce the purchase of his wares by the local merchants of a city of this state, agreed with them .that he would distribute among the inhabitants of the city, samples of his wares, and books showing the use thereof. Held this agreement was one of the means by which the shipment of the manufacturer’s product was set in motion to this state, and that a tax imposed upon it by the city, was a tax on interstate commerce, and a violation of the commercial clause of the Federal Constitution.</p>

<p>Contracts — Construed—Sale or Option. A contract of sale binds the seller to sell, and the purchaser to buy. An option confers the right of purchase without imposing any obligation whatever to complete the purchase.</p> <p>A contract held to be a mere option, and not an agreement to purchase.</p> <p>Defendant had employed plaintiff to sell certain real property. Plaintiff produced a broker to whom defendant executed an option to purchase the lands. Thirty thousand dollars was to be paid plaintiff by a day specified, and out of this payment defendant agreed to pay plaintiff $5,000. No payment was ever made by the holder of the option, and no excuse for such non-payment, or failure on the part of defendant to perform the agreement, on his part, was shown. Held that plaintiff was not entitled to the $5,000 or any part thereof.</p>

<p>1. Trial — Challenge to Minors. The ruling of the .court will not be disturbed unless an abuse of discretion is shown.</p> <p>2. Criminal Law — Challenge Juror. The accused is entitled to a trial by a competent jury, but not to a trial, by any particular persons.</p> <p>Error in the allowance of a challenge is immaterial where it is not apparent that any member of the panel selected was either partial or incompetent, or that the prisoner had exhausted his peremptory challenges.</p> <p>3. Perjury — What Testimony Material. In order to the materiality of testimony it need not be directed to the main issue — tending to corroborate what is adduced to establish the principal matter, it is material, and if false is perjury.</p> <p>4. Evidence — Variance. If the evidence corresponds in substance and effect to what is charged in the information this is sufficient.</p> <p>5. Administration of the Oath Presumed. Where one testifies in a trial pending in a court of record the due administration of the oath will be presumed.</p> <p>6. Evil Intent Presumed. Whoever knowingly falsifies in giving testimony in a court of justice is presumed to be animated by a willful and corrupt purpose.</p> <p>7. Materiality of the False Testimony, is for the court. But if, being submitted to the jury they find a verdict of guilty which is approved by the lower court, the error is tolled.</p> <p>8. Amendment op Record — Power of Court. Every court has an inherent power to correct its record, so as to make it conform to the truth.</p> <p>6. Effect of Amendment. Information for perjury committed in the trial of an information for an assault with intent to murder. The record showed that the charge was murder. Being amended to accord with the information the record, so as amended, was admissible against defendant in the trial of the information, for perjury.</p>

<p>Taxation — Excessive Levy — Remedy of Taxpayer. The remedy of a property owner for the levy of an excessive tax thereon, is to pay the tax, and proceed under Rev. Stat., sec. 5750.</p>

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

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

<p>1. Judgment — Without Service — Motion to Vacate-^-Effect. Motion defendant to vacate a judgment because he was never served with process is a direct attack upon the judgment, of the • same character and effect as a bill in equity for tne same purpose.</p> <p>It confers jurisdiction of the person, and the denial of such motion is of the same conclusive effect as a final decree in such equity suit.</p> <p>The provisions of sec. 31 of the Code have no application.</p> <p>2. Bar of Judgment — To Whom Available. A decree quieting a title to lands bars the defeated party, not only as against the successful plaintiff, but as against all claiming under him.</p> <p>3. Quieting Title — Conveyance by Successful Plaintiff Before Writ of Error Sued Out. Bill to quiet the title to lands. Decree for plaintiff. A conveyance of the lands by plaintiff before writ of error sued out is no bar to a writ of error subsequently instituted, to revise such decree, even though the purchaser paid value, without notice, and no stay of judgment had been ordered.</p> <p>Semble, succeeding in his writ of error the plaintiff therein is not without remedy for the wrong done him in the loss of the lands, even though the title of the purchaser, from the defendant in error be held unassailable.</p> <p>The purchaser not being party to the record, the effect, as to him, of the judgment of reversal, not determined.</p>

<p> Error to Costilla District Court, Hon. A. Watson McHendrie, Judge. </p>

<p> Error to Denver County Court, Hon. Wm. C. Hoocl, Jr.,Judge. </p>

<p> Error to Montrose District Court, Hon. Thomas J. Black, Judge. </p>

<p> Error to Otero District Court, Hon. J. E. Rizer, Judge. </p>

<p> Error to Chaffee County Court, Hon. Joseph Newitt, Judge. </p>

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

<p>1. Criminal Law — Jurors—Competency—Opinion as to Guilt or Innocence, even though expressed, does not necessarily disqualify a juror. (Rev. Stat., sec. 3691 et seq.) But the accused is entitled to interrogate those summoned to form the panel, not only in order to show cause of challenge, but to enable him to decide whether or not to make a peremptory challenge, if his challenge for cause shall be denied.</p> <p>2. Fair Trial — Examination of Jurors. The accused, a coal miner, and a member of the United Mine Workers, which conducted, on the side of the employees, an industrial conflict with the owners of the coal mines of Las Animas County. He was convicted of the murder of a detective employed by the mine . owners. The theory of the prosecution was that the murder was committed “for the good of the Union.”</p> <p>The accused contended, and the evidence on his part tended to show that another, who had been seen fleeing from the place of the homicide was the guilty party.</p> <p>Several of the jurors stated upon an examination by the prosecution that they had formed opinions, but could nevertheless give the prisoner a fair and impartial trial. The prisoner’s counsel proposing to interrogate the jurors as to whether they would enter upon the trial, according to the prisoner the presumption of innocence, an objection to the question by the prosecution was sustained. The prisoner exhausted his peremptory challenges, and several veniremen as to whose state of mind examination by the prisoner had been prohibited, served upon the panel over the objections of the prisoner.</p> <p>Other questions propounded to these jurors, and excluded, were directed to the question, Whether they. entertained any bias or prejudice against the striking coal miners, or the United Mine Workers; Whether the juror had taken any part on either side, in the coal strike; Whether he had advocated tne forcible deportation of the striking miners, or was a mem,'ber of an organization that had advocated such deportation; Whether the juror thought he knew what verdict ought to be rendered; Whether he was an active partisan on either side in the coal mine strike; Whether he participated in any of the battles that occurred during that strike; Whether he was desirous of serving on the jury; Whether he had read any of the literature sent out by the coal companies touching the Zancannelli case — the prisoner proposing to show that the coal companies had distributed literature stating not only that the prisoner was guilty, but that he had confessed his guilt; Whether the juror had taken part in the industrial conflict; Whether he acted as a deputy sheriff to go out on the armored ears of one of the coal mining companies; Whether the juror knew how the sheriff came to summon him as a juror, “a man who had been in those battles.”</p> <p>To a juror who stated that his business association with the coal companies would tend to bias him; Whether he would or would not like to decide the case contrary to the views of the coal companies.</p> <p>This juror was one to whom the prisoner’s challenge for a cause was overruled, and who, the prisoner’s peremptory challenges being exhausted, sat upon the panel.</p> <p>Of other jurors the prisoner proposed to ask them whether they now regarded the prisoner as a guilty man; Whether the juror would not require prisoner to prove himself innocent. Other jurors who were interrogated as to what they understood by the presumption of innocence; As to which way his verdict would be if the evidence were evenly balanced. One juror having stated that he followed a former trial of the prisoner through the papers, with interest, and had a fixed opinion which it would require evidence to remove, declared, in response to questions by the presiding judge that he would decide the case solely upon the evidence; on re-examination by prisoner’s counsel he stated that he had often expressed his opinion, and would not lay it aside until he had heard clear, strong and convincing evidence. The challenge to this juror for cause was overruled, and the court refused to permit inquiry as to bias or prejudice and sustained an objection made by the juror himself, to a question as to whetner he could go into the trial presuming the prisoner innocent.</p> <p>One Burkhart having testified in his examination upon the voir dire that he had business relations with the coal companies, and that this might tend to bias or prejudice him, the court refused to permit prisoner’s counsel to ask him whether he would not dislike to decide the case contrary to the views of the coal companies, or whether he could enter upon the trial giving the prisoner the benefit of the presumption of innocence. Burkhart having been accepted and sworn on the jury, over the prisoner’s objection, the prisoner’s counsel, before any evidence heard, applied by petition for leave to further interrogate him. The petition was supported by the affidavit of one Rollins, to the effect that during the former trial of the prisoner he and Burkhart had made a wager upon the result; that they had made another wager upon the result of the pending trial, and that afterwards Burkhart had offered to make another bet, stating that if he, Burkhart, were accepted as a juror, there would be “either a hung jury, or a hung dago.” Nothing contrary to the averments of the petition was shown. Nevertheless the application of the prisoner for leave to further examine the juror was denied.</p> <p>Held that the interrogation of the jurors proposed by prisoner’s counsel was proper, and within his right, and that the errors committed in these preliminary matters invalidated the proceedings at the very beginning.</p>

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

<p>1. Practice — Venue—Change of Trial Judge. Denial of a petition for a change of the judge presiding, presenting substantially the same facts as that considered in People ex rel. v District Court, 60 Colo. 1, held error.</p> <p>2. Whether a second change allowed. Under Rev. Stat., secs. 6963, 6964, when the one called is ascertained to be incompetent, not decided. The question not involved in Erbaugh’s case. 57 Colo. 48. The right of the accused to an impartial judge is not waived or lost by an application for a change, m an indictment for the same offense, previously pending, in which a nolle was entered by the state.</p> <p>3. A Nolle prosequi, leaves the matter of the accusation in the same condition as before the return of the indictment. Proceedings had in the matter during the pendency of the indictment cannot be invoked to the prejudice of the accused, in a later prosecution.</p>

<p> Error to Teller District Court, Hon. J. W. Sheaf or, Judge. </p>

<p> Error to Saguache District Court, Hon. Charles C. Holbrook, Judge. </p>

<p>1. Will — Definition. A writing is of testamentary character, only • when the intention of the maker is that the estate or thing mentioned shall pass upon his death, and not before. The question depends upon the words of the paper, aided by view of the circumstances attending its execution. If the intention of the maker was that the writing should become effective, only after his death, it is a will; if presently effective, it is a contract.</p> <p>By what name the maker denominates the paper is immaterial; and it may be partly a contract and partly testamentary.</p> <p>2. Writing construed. The writing in question was in two clauses. . The first declared that, for considerations mentioned, “I transfer to etc., my library, of which she is to take immediate possession.”</p> <p>The second clause was in these words, “At my death she is to have my sewing machine . . . and all other personal property in my possession at the time of my death.” Held that the latter clause was clearly testamentary.</p> <p>3. Practice — Stipulation of parties. A stipulation of parties submitting a claim against a decedent’s estate upon the testimony heard at a former trial, and as to the judgment, in case of a finding for the claimant, was set aside in the County Court, as improvidently entered into. A like result ensued on appeal to the District Court. It appearing that there was no abuse of discretion, and no prejudice to any right of the claimant, the judgment was affirmed.</p> <p>4. Appeal and Error — Judgment. No cross errors being assigned a judgment for the plaintiff in error was affirmed.</p>

<p>1. Mortgage — Assumption of. The acceptance of a conveyance of lands which are therein declared to be “subject to a mortgage” for a specified amount, raises no presumption of an agreement by the grantee to discharge the mortgage debt.</p> <p>2. Assumption clause inserted by mistake of the scrivener, without the knowledge of the grantee, and contrary to the terms of his agreement, is without effect. The grantee is not chargeable with negligence for his mere failure to read the conveyance.</p> <p>3. Failure' of grantee to disaffirm, after receiving notice of the assumption clause improperly inserted, is without effect where the holder of the mortgage debt is not mislead to his injury by the omission.</p> <p>4. Estoppel — By conduct — Who may assert. Only one who has been mislead to his injury by the conduct imputed.</p> <p>5. Negligence — In matters of contract. The grantee of lands is not chargeable with negligence for accepting the conveyance, without perusal thereof.</p>

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

<p>1. Conveyance — Construction. A conveyance of lands is to be construed upon consideration of the whole of its provisions.</p> <p>2. Construed. A conveyance granted a life estate, “reserving the remainder” to the grantor, in case he should survive the grantee — otherwise “said remainder to belong absolutely” to the grantee. The grantee surviving the grantor, held that she took a fee simple absolute.</p> <p>The provision as to what should ensue upon the death of the grantor, the grantee surviving, was held not of testamentary character.</p>

<p> Error to Rio Grande District Court, Hon. Jesse C. Wiley, Judge. </p>

<p>1. Eminent Domain — Damages to Residue — What Excluded. Under Revised Statutes, section 2420, the land owner cannot be awarded damages for injuries resulting from the operation of ditches and drains which do not lie upon the land condemned, but upon lands of others than the respondent. Damages to the residue of respondent’s lands resulting by what is done elsewhere than on the part taken are not to be considered.</p> <p>2. Verdict and Judgment. Where the form of the verdict and of the judgment do not appear to be such as affect the substantial rights of plaintiff in error, if such form were erroneous, the appellate court will not pass upon the correctness of such form.</p> <p>3. Costs — Constitutional Law. Section 2424 of the Revised Statutes in so far as it authorizes costs to be taxes against the land owner is in violation of section 15, article II of the Constitution, as such taxation would diminish the compensation guaranteed.</p>

<p> Error to Denver District Court, Hon. William D. Wright, ' Judge. </p>

<p>Assignments Contemporaneus by the insured, of moneys due under a fire insurance policy. The first in favor of defendant in error, for a payment of an amount due upon a mortgage of the insured chattels. The second, by expressed terms subordinate to the first. The transaction was in good faith. Judgment that the amount due defendant in error, including the expense of collecting the insurance, should be first paid, and any balance to plaintiff in error, affirmed.</p>

<p>1. Criminal Law — Confidence Game — Information. Section 1784 of the Revised Statutes declares that it shall be a sufficient description of the offense of obtaining money by the Confidence Game, to charge that the accused did “unlawfully and feloniously” obtain the moneys of another by means of the Confidence Game. Section 1785 declares that the act shall be liberally construed. An information omitting the word “unlawfully” sustained. That the offense was especially charged to have been committed “contrary to the form of the statutes” was held equivalent to a charge that the acts alleged were done “unlawfully.”</p> <p>The court cites sections 1950, 1959, 1960, of the Revised Statutes as sufficient to sustain the information.</p> <p>2. Technical objections to the form of an information, first presented after conviction, are too late.</p>

<p>1. Appeal and Error — Trial by the Court — Finding on Conflicting Evidence, will not be disturbed.</p> <p>2. Corporation Dissolved — Conveyance by Surviving Trustees, to a third person to enable such grantee to effect a sale for the benefit of the stock holders and creditors, sustained.</p>

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

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

<p> Error to El Paso District Court, Hon. John W. Sheaf or, Judge. </p>

<p>1. Evidence — Parol admissible, to explain ambiguities or uncertainties in a writing. Agreement to establish “a store” at a place named. Parol is admissible to establish the representations of the promissor as to the kind of store intended.</p> <p>2. Admissions — Construed. A corporation to induce a subscription to its capital stock, agreed with the subscriber to establish a store at a certain locality, and return a promissory note given by the subscriber, for his subscription, in case it should fail to perform this engagement. In an action upon the note, the defense being non-performance of this condition, a statement of defendant that the corporation had secured at the place named the use of a building, and had a few canned goods therein, held to fall short of an admission of performance of the condition.</p> <p>3. Pleadings — Estoppel, or Waiver of a Condition, must be especially pleaded.</p> <p>4. Estoppel — Must be pleaded — Exceptions to the rule. The doctrine of Gillette v. Young, 45 Colo. 562, that one who himself produces evidence of the facts raising the estoppel may not object that no estoppel was pleaded, is without.' application where the evidence so relied upon is given by the party upon cross examination, and not when testifying voluntarily on his own behalf.</p> <p>5. Tkial — Questions for the Jury. Mere conflicts in the testimony, or that on one side the evidence is clear and definite, and upon the other evasive, indefinite and contradictory, does not justify the withdrawal of the issue from the jury.</p>

<p>1. Evidence — Circumstantial, is frequently most convincing and satisfactory.</p> <p>2. New Trial — Evidence. Conviction of homicide. The evidence was entirely circumstantial. The court below having overruled the motion of the accused for a new trial, held that the court of review, having no opportunity to observe the demeanor of the witnesses in giving testimony, and no acquaintance with the surroundings and setting, of the case, should not overrule the concurring judgment of the jury and the trial judge.</p>

<p> Error to El Paso District Court, Hon. W. S. Morris, Judge. </p> <p> Application for supersedeas. </p>

<p> Error to Denver County Court, Hon. H. V. Johnson, Judge. </p>

<p> Error to Denver District Court, Hon. H. P. Burke, Judge. </p> <p> Application for Supersedeas. </p>

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

<p> Error to Pueblo District Court, Hon. James L. Cooper, Judge. </p> <p> Application for Supersedeas. </p>

<p> Error to Pueblo District Court, Hon. J. E. Rizer, Judge. </p>

<p> Error to Pueblo District Court, Hon. J. E. Rizer, Judge. </p>

<p> Error to Denver District Court, Hon. W. D. Wright, Judge. </p>

<p>1. Highways — Injury by Seepage, from a ditch, is not actionable unless the result of negligence in the construction or conduct of the ditch.</p> <p>2. Statutes — Construed. The statute provides that “no person shall erect any house or other structure or dig pits or holes”, upon or in any highway, “or cause waste water from any ditch, etc., to flow in or upon any highway” (Rev. Stat., sec. 5826). Considering that to violate any of the provisions first quoted requires active causation, that the construction of ditches is a lawful enterprise, especially authorized by statute, that under other statutes the owner of a ditch is not liable for injuries to land by seepage (North Sterling Ditch v. Dickman, 59 Colo. 169) it was held that injury to a public highway by seepage from a ditch gives no action, unless negligence is shown.</p>

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

<p>1. Appeal and Error — Party Bound by Position Below. One who in an action of ejectment interposes a cross complaint praying that the title be quieted in him will not, on error, be heard to complain that the issue thereby presented was improperly injected into the cause below.</p> <p>2. Estoppel — Election of Remedies, Ejectment, plaintiff claiming under the foreclosure of a deed of trust. Cross complaint praying- that the title be quieted in defendant. The foreclosure being adjudged void plaintiff is not estopped to claim that the deed of trust is still a valid lien upon the premises.</p> <p>8. Pleadings — Amendment During Trial, of the prayer, demanding relief to which plaintiff is clearly entitled, approved. (Rev. Code, secs. 81-84).</p> <p>4. Mortgage — Void Foreclosure, leaves the mortgage, a subsisting lien upon the land.</p>

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

<p> Error to Teller District Court, Hon. Robert E. Lewis, Judge. </p>

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

<p>1. False Pretenses — Obtaining the Promissory Note of Another, by false representations is within Rev. Stat., sec. 1849. •</p> <p>2. Information Construed. The information charged that the accused falsely, etc., represented that the stock of a certain insurance company was worth $2.00 per share; that the company was paying quarterly dividends; that the amount required by statute had been deposited with the State; that the State had paid, and would continue to pay, quarterly dividends upon the stock; and that by reason of these representations, and her belief therein the prosecutrix executed and delivered to the accused her promissory note for $1,000. Held, sufficient under Rev. Stat., sec 1849.</p>

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

<p>Contracts — Oral Waiver of Conditions. One who waives the provisions of a written contract, and carries the same into execution, will not be heard to afterwards plead non-performance of the conditions so waived, as the ground of a prayer for rescission.</p>

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

<p>1. Equity — Laches. Equity will never rescind a contract for fraud in its procurement unless it is clearly established that- the party complaining has not been guilty of laches in applying for relief.</p> <p>Defendants’ having purchased land and entered into possession, discovered that certain representations which induced their purchase were fraudulent; nevertheless they continued in possession, cultivating the land, and made three payments on account of the purchase price. Rescission was denied.</p> <p>2. Contracts — Ratification. In the year following their purchase of a tract of land, defendants brought an action against the vendor for the breach of a covenant of the latter to procure a purchaser of the lands at an advance upon the price paid by defendants. Held an affirmance of the contract, barring a subsequent action for a rescission of contract of purchase on the ground of fraud.</p>

<p> E'rror to Denver District Court, Hon. Charles G. Butler, Judge. </p>

<p>1. Fraud — Waiver. Action for fraud inducing plaintiff’s conveyance of certain lands. In the transaction plaintiff receives certain promissory notes of defendants. Though fully advised of the alleged fraud within two or three days of the conclusion of the transaction, plaintiff retained these notes and collected them. Held a waiver of the alleged fraud.</p> <p>2. Trial — Directed Verdict. Where upon the plaintiff’s own testimony, or that of the defendant uncontradicted it is clear that the action is without merit it is the duty of the court to direct a verdict for defendant.</p>

<p>1. Criminal Law — Accomplice. A thief who sells the stolen goods is an accomplice of the buyer who purchases with knowledge of the theft.</p> <p>2. Evidence — Testimony of an Accomplice, is to be viewed with suspicion. A conviction should not be permitted upon such testimony, unless corroborated, or in itself so clear and convincing as to exclude reasonable doubt.</p>

<p>1. Election op Remedies — Consistency. Remedies must be inconsistent, to preclude resor.t to one, after the adoption of the other. ■</p> <p>2. County — Liability for Illegal Tao; Collected. Under Rev. Stat., sec. 5750, a county is liable to one who pays a tax imposed without authority of law. An unsatisfied judgment recovered by the tax payer against the collector, is no bar to his action against the county, even though the collector made no return to the county, and converted the money to his own use.</p>

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

<p> Error to Denver County Court, Hon. Ira C. Roihgerber, Judge. </p>

<p> Error to El Paso County Court, Hon. W. B. Kinney, ■ Judge. </p>

<p>Life Insurance — Beneficiary—Member of Family — Evidence. Controversy between the wife and mother of the insured as to the insurance money. The wife being named as beneficiary, in the policy, a witness testified that upon the husband’s departure for California for his health, the wife had refused to accompany him, and therefore, by the law ■ of the state where the insurer was incorporated, she was not a member of the family of the insured, nor eligible as a beneficiary. Correspondence between the wife and husband, during his stay in California, when there was no reason for misrepresentation, held to warrant a finding for the wife on the question of separation.</p>

<p>1. Evidence — Weapon of an Alleged Assault. Husband’s bill for divorce, alleging that the wife maliciously discharged a pistol at him, penetrating his clothing. The wife admitted the discharge of the weapon, claiming it was accidental, and did not strike the husband’s clothes. To permit the exhibition of the pistol, and the husband’s coat, said to have been penetrated by the discharge, and to permit the jury to carry them to the jury room, held not an abuse of discretion.</p> <p>2. Trial — Exhibits—May be Sent to the Jury Boom. The general rule is that the jury may take out with them writings and other tangible objects which have been admitted in evidence.</p> <p>3. Appeal and Error — Bill of Exceptions. Errors assigned upon the giving and refusing of instructions will not be considered where * no exception thereto was reserved below.</p> <p>Nor will the refusal of instructions, unless all those given are brought up.</p> <p>4. Divorce — Second Marriage of Successful Party, while the decree of divorce is in full force, no supersedeas thereto having been allowed, and no suspension by the trial court, is no bar to affirmation of the decree of divorce.</p>

<p>Landlord and Tenant — Lease Construed. The lease of a store room for six months provided that if the tenants should "elect to continue their occupancy * * * beyond July, 1914, it shall be a monthly rental of $100.00, for the ensuing six months * * * with $8.00 monthly in advance for steam heat for October, November and December, 1914, and January, 1915.</p> <p>The tenants continuing in possession subsequent to July, their tenancy became one for six months, and not a monthly tenancy.</p>

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

<p>1. Banking Act — Construction. The Banking Act (Laws 1907, c. Ill, Laws 1911, c. 79) is to be liberally construed for the protection of the bank, its depositors and stock holders.</p> <p>2. Construed. A loan of any amount whatever to one who is already indebted to the bank in excess of the statutory limit is a violation of section 30 of the Act of 1907.</p> <p>3. Principal and Surety — Surety’s Liability. The bond of a cashier of a bank provided that the surety should not be liable unless the default of the officer through which loss might happen, should occur on or after the date of the bond. An excessive loan made prior to the date of the bond, and subsequently renewed does not charge the surety.</p> <p>The surety’s contention that notwithstanding an existing excess in the indebtedness of a customer, the cashier might make an additional loan to him, in an amount not exceeding the statutory limit, rejected.</p> <p>So the contention that in case of a loan in excess of the statutory limit, the surety is liable only for the excess.</p> <p>Loans in excess of twenty per cent, of the capital, to a single customer held a breach of the bond, and the surety chargeable.</p> <p>4. Evidence — Summary of Accounts. In an action upon the bond of the cashier of a bank an accountant was permitted to testify from brief tabulated statements, made by himself, as to what appeared by the books of the bank. The books were present in court, and the accountant referred to them for verification whenever requested. Held the admission of the testimony was not prejudicial error.</p>

<p>1. Limitations — Color of Title. A judgment record may be color of title.</p> <p>2. Good Faith. To entitle one claiming lands by the payment of taxes under color of title, good faith must be affirmatively shown.</p> <p>Bill to Quiet Title to Lands. Plaintiff derived title under one Warwick. Defendants produced as color of title, a decree entered in a cause in which they were named as plaintiffs and one Warwick as defendant, quieting the title in them.</p> <p>The land records of the county showed that the title stood in Warnioh. Held that the defendants were conclusively presumed to know this, and there being no evidence to show any belief on their part that the proper party had been named as defendant in their action, or their good faith in the proceeding, the mere record was held insufficient to establish it.</p> <p>Hill, J., dissented.</p>

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

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

<p>1. Negligence — Must be Proven, and is not to be inferred from the mere occurrence of an accident.</p> <p>2. Presumptions. Action for the death of a servant, attributed to negligence in the appliances of the master. The servant had no part in the construction, maintenance or control of the appliances the giving away of which occasioned his death. Held that the maxim res ipsa loquitur applies, raising a presumption of negligence which it was incumbent on the master to meet and overcome.</p> <p>This maxim applies wherever the obligation of due care is imposed upon one party alone.</p> <p>Where there is no witness to an accident in which the servant comes to his death, and the servant was, at the time, at the place prescribed to him for the discharge of his duties, it is presumed, in absence of evidence to the contrary that he was engaged in the performance of his duties.</p> <p>3. Evidence — Opinions, of witnesses having no expert knowledge upon the subject to which their testimony is directed are not controlling upon the jury.</p> <p>4. Custom. Action for negligence in operating by means of a steel cable, a tramway upon an incline, so that the loaded cars descending, drew up the empties. Where the two trains passed there was a curve in the track, and to conform the cable to the track there were several sheave wheels, or pulleys, fastened to the ties. Negligence in the attachment of these sheaves to the ties was alleged, and that by reason thereof, the cable flashing from the course of the track occasioned the death of an employee. A witness for* the defense, after testifying as to the manner of this attachment, was asked “Is that the cus.tomary manner in which vertical sheaves, and forty-fives, (set at an angle of forty-five degrees) are fastened in the mines you have worked in”, and answered in the affirmative. The witness had worked as a carpenter in a mine in Wyoming, but did not know what was the custom there as to the manner of such attachment. All other testimony as to the custom was from witnesses no better qualified. Held that the testimony tended neither to establish a custom nor a proper and sufficient structure.</p>

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

<p>Taxes — ■Properties Liable. A testator directed that after the payment of certain specific legacies and the expense of administration, the residue of his estate should be paid to an institution of learning, the properties which are exempt by law from taxation. Held that so long as the estate remained unsettled the funds in the hands of the executors were subject to taxation.</p>

<p>1. Mandamus — When Allowed. When a subordinate court is directed by this court to enter a particular decree or order, obedience to the mandate will be enforced by mandamus.</p> <p>The necessity and importance of obedience by the inferior court enlarged upon and enforced.</p> <p>2. Irrigation — Bight of Consumer of Water under contract with the owner of an irrigating ditch. The opinion in Denver v. Brown, 56 Colo. 216, construed and explained.</p> <p>Proceedings in the District Court held a departure from the directions of that opinion, and void.</p>

<p>Municipal Corporation — Contract Granting a Way — Obstruction of the Way. A contract between a city and the owner of a lot provided that the property owner should have the right to construct a sidewalk along a certain levee of the Arkansas River, the entire length of the lot. The walk was constructed, and connected the premises, and an apartment house erected thereon, with a public street, and was the only way or means of access between the apartment house and any public highway. The city afterward erected a bridge over the river, and by the railing obstructed the walk, and all access to the apartment house. The city was liable to an action by a future proprietor of the lot, successor in interest to the one with whom the contract was made.</p>

<p>1. Water Rights — Adjudication of Priorities — Construction of Decree. The consumers’ Statements of Claims, as well as the attending- circumstances, are considered, in the construction of the decree, where it presents any ambiguity.</p> <p>2. Decree Construed. In 1862 a number of the settlers upon Boulder Creek took possession of a channel thereof known as Dry Creek, cleared it out, and converted it into a channel for conveying water to their plantations. Some of these took out a ditch from this channel, below the others, and became incorporated as the North Boulder Ditch Company. In 1874 this company granted to the White Rock Ditch Company a right of way over this channel to the point where the ditch of the North Boulder Company diverged therefrom, with the right to convey water therein, to supply the ditch of the White Rock Conipany, and the latter company agreed to supply to the North Boulder Company’s ditch all water which said ditch would carry in its then condition, or according to its increased capacity by any subsequent enlargement. In 1882 by a decree entered in adjudication proceedings a priority No. 11 of June 1, 1862, was awarded for divers volumes of water to certain separate appropriators using the Dry Creek channel, including the North Boulder Company. Other appropriations of later date were also awarded to this company aggregating a considerably greater volume that then, or at any time after-wards, it applied to any beneficial use. The White Rock Company was awarded priority No. 35 as of November 1, 1873.</p> <p>In 1911 the White Rock Company asserted a claim under the contract of 1874, to all the water decreed to the North Boulder Company in excess of what had been beneficially applied by that company, and in an action brought by an appropriator senior to the White Rock Company, to declare an abandonment by the North Boulder Company, of this water, the White Rock Company contended that the entire award of waters conveyed through the Dry Creek Channel was to that company, that it should be treated both as a carrier and a user, and that the other ditches taking water from the Dry Creek channel should be regarded as mere laterals, and parts of the same unit. Considering that the contract made between the North Boulder Company and the White Rock Company, 1874, did not purport tq ¡affect the other appropriators, to whom the adjudication decree had awarded separate and distinct amounts, or in any manner to treat of their rights, that in the adjudication proceedings the North Boulder Company and the White Bock Company filed separate claims, and that the White Bock Company, though its statement of claim was filed many years subsequent to the date of the contract, made no claim to an appropriation as of any date earlier than 1873, this contention was repelled.</p> <p>3. Abandonment. An irrigating company had for twenty-nine years permitted a portion of the waters awarded to it in adjudication proceedings, to remain in the stream, and pass to other consumers, never manifesting any intention to resume this excess, or apply it to beneficial uses, held a clear case of abandonment.</p> <p>4. Effect of Abandonment. The abandoned waters become part of the stream and are to be taken by other appropriators according to their respective priorities.</p> <p>5. Contracts — Construction. Where the language of a contract is ambiguous the conduct of the parties acting under it, before controversy arises, is one of the most reliable tests of their intention.</p> <p>6. Construed. In 1874 the North Boulder Company granted to the White Bock Company a right of way over a certain line, of ditch, with the right to convey water therein, and the White Bock Company agreed to supply to the North Boulder Company all water which its ditch would carry, in its then condition, or as it might afterwards be enlarged. In 1882 by a decree entered in adjudication proceedings the North Boulder Company was awarded several volumes of water of different priorities, considerably exceeding what it at any time, then or afterwards, beneficially applied. In an action brought by an appropriator senior to the White Bock Company, to declare a forfeiture by the North Boulder Company of the water so decreed to it and never beneficially applied, the White Bock Company claimed that the effect of the contract of 1874 was to transfer to it all the waters so decreed to the North Boulder Company, and which had never been applied by that company to beneficial uses. Considering that in the adjudication proceedings the White Bock Company asserted no claim under the contract of 1874, that no such claim was ever asserted until 1911, and that in the intervening years, up to 1882, the North Boulder Company had from time to time increased the volume which it diverted, and the acreage which it watered, this contention was rejected.</p> <p>7. Appeal and Error — Harmless Error. Upon bill by consumer to declare abandoned a volume of water decreed to a senior appropriator, the District Court assumed to revise the original decree, entered in the adjudication proceedings, and correct certain supposed mistakes in computation, as to the volumes awarded to the senior appropriator. The court having decreed correctly as to the volume which had been beneficially applied, and to which no claim of abandonment could justly be asserted, held that the attempted revision of the original decree was immaterial and harmless, even if erroneous.</p> <p>8. Parties — Necessary Parties. Bill by an irrigation company to declare abandoned water awarded in adjudication proceedings to a senior appropriator. Other consumers' diverting water from the same stream, by the same diversion works and channel, having no interest in the controversy, and for or from whom nothing is claimed, are not necessary parties.</p> <p>Nor are other consumer ditch companies in this district, though entitled to share in the alleged abandonment. Affolter v. Rough & Ready Co., 60 Colo. 519, followed.-</p> <p>Nor individual consumers under the ditch against which abandonment is alleged, nor the consumers under another claiming to have succeeded to its rights.</p> <p>9. Trial — By- the Court — Evidence. In trials by the court the- rules as to the admissibility of evidence are not so rigid as in trials • before a jury.</p> <p>10. Costs — Apportionment. Bill by an irrigation company to de- , clare abandoned a volume of water awarded in adjudication proceedings to a senior appropriator. The plaintiff prevailing as to the greater part of its claim, as to the volume abandoned, held there was no abuse of discretion in taxing all costs against the defendant.</p>

<p>1. Fraud — Representations Not Relied Upon, afford no ground for the charge of fraud.</p> <p>2. Evidence. Bill by purchaser of lands to cancel the contract of purchase. The contract was made in April. Evidence that in the prior January some of the purchasers visited the property, and upon their return declared that they were entirely satisfied with it, and were before the visit, that one of their party had been there previously, was held competent to show that the purchasers did not rely on any representations of the vendors.</p> <p>Evidence that during the negotiations for the purchase, one of the vendors demanded that one of the proposed purchasers should visit the property, saying he was unwilling to sell to one who had not seen it, was held competent, as tending to show good faith on the part of the particular vendor named, in the representations attributed to him.</p> <p>Testimony that in March preceding the consummation of the contract for the purchase, one of the plaintiffs had stated that for six years he had been trying to get hold of the property, was held admissible, as tending to show that the purchasers ' relied rather upon the knowledge of this one of their number, than on the representations of the vendors.</p> <p>3. Appeal and Error — Finding Upon Conflicting Evidence, and not contrary to the weight of evidence will not be disturbed.</p>

<p>1. Trial — Directing Nonsuit or a Verdict for Defendant is admissible only in an entire absence of testimony tending to establish plaintiff’s case.</p> <p>2. Verdict — Upon Conflicting Evidence, will not be disturbed.</p> <p>3. Instructions — To be Considered as a Whole. An omission in one part of the charge may be supplied by what elsewhere appears therein. Reference to a particular statute, having, in part, no application to the matter in issue, is cured by an instruction which confines the attention of the jury to what is alleged in the complaint.</p> <p>4. Contributory Negligence — Evidence. Action against a railway company for negligently maintaining a bridge so narrow that while plaintiff’s intestate, an employee, was looking from the engine his head came in contact with one of the side trusses, the collision resulting in his death. Testimony that on the previous day the engineer had said to the deceased, “don’t look out, there’s a bridge kind of close here,” was held too indefinite to establish knowledge on part of the deceased that the bridge was dangerous.</p> <p>Testimony of a witness that while passing through the bridge his hat was knocked off by the rods thereof held competent.</p> <p>5. Evidence — Opinions of Witnesses, as to their understanding of the rules of a corporation bind no one.</p> <p>6. Personal Injury — Damages. Action under the Federal Employers’ Liability Act for the death of an employee attributed to the negligence of defendant. Deceased was twenty-four years of age, of good health, and good habits. He had been earning from $70.00 to $109.00 per month. He left a widow and one child. There being nothing in the record to indicate passion or prejudice on the part of the jury, an award of $12,500 as damages was sustained.</p>

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

<p>Subrogation — A Doctrine of Benevolence. Leavenworth purchased certain real property of plaintiff, agreeing among other things to discharge a certain promissory note of plaintiff to MeCrimmon, to pay certain other moneys to plaintiff, and that plaintiff should have a vendor’s lien upon the property to secure performance. Plaintiff obtained judgment against Leavenworth for the moneys promised to him, and the foreclosure of the lien, and acquired the property by sale under this foreclosure. Leavenworth had caused the MeCrimmon note, then'long past due, to be assigned to a Mrs. Thompson, and, attached to a sight-draft upon himself and one Dunlevey, in favor of the Silverton State Bank, to be forwarded to the International State Bank for collection. Leavenworth and Dunlevey executed their note to the International Bank for the amount of the draft, the draft was paid, and the proceeds remitted to the Silverton Bank. The MeCrimmon note was never listed in the assets of the International Bank. The note of Leavenworth was so listed, and was renewed from time to time, and that bank in advancing money in the first instance, to pay the draft, relied entirely upon the responsibility of Dunlevey. Held that the International Bank did not become the owner of the McCrimmon note, or any interest therein; that the lien created by the deed of trust given to secure it, was no longer of effect, and the title of the property was quieted, in plaintiff.</p>

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

<p>1. Police Power — Railway in Public Street. Neither legislative enactment nor a delegation to municipal or other inferior authority can alienate, abrogate, or limit, the police power. The only limitation upon its exercise is that it shall be reasonable.</p> <p>The duty of the public authorities to protect and care for the public carries with it the power to remove from the public street the tracks of a railway, whenever their presence is found to be injurious to the public, and this without regard to the character of the right or authority under which it was at first established and maintained.</p> <p>Defendant maintained across one of the principal streets of the city of Denver, a track, directly in front of the entrance to the Union Station, to which some 1,500 to 2,500 persons resort daily. ' Upon extraordinary occasions this number is greatly increased.</p> <p>The track was originally the main line of the defendant’s railway, and was authorized by ordinance of the city; but for more than twenty years it had been operated merely as a switch, for the service of certain manufacturing and other interests, which may be satisfactorily served and accommodated by other tracks, open to use by defendant. In view of the growth of the city, and the increase of traffic at the intersection, the track was held a continuing nuisance, and menace to the public safety, and an ordinance of the city requiring its removal was approved.</p> <p>2. Evidence — Judicial Notice, taken that the time tables of a railway company are not immutable, and that trains do not always conform thereto, but arrive and depart at hours which are neither announced nor anticipated.</p>

<p> Error to Denver District Court, Hon. J. E. Little, Judge. </p>