Volume 64 — Colorado Reports

<p> Error to Fremont District Court, Hon. Charles A. Wilkin, Judge. </p>

<p>1. Highways — Establishment—Burden of Proof. One claiming as a public highway lands in private possession by one claiming title, has the burden of proving the lawful establishment of the highway.</p> <p>2. Abandonment — Burden of Proof. One asserting abandonment of a highway, the establishment of which is admitted or proved, has the burden of showing such abandonment.</p> <p>3. Public Lands — Homestead—Right of Entryman. Rev. Stat. sec. 5834 authorizes the County Commissioners to declare any section or township line in the public domain a public highway. Sec. 2477 of the Revised Statutes of the United States (U. S. Comp. St. 1916, sec. 4919) grants a right of way for the construction of highways over any public land not reserved for public use. One who enters land under the homestead act acquires an inchoate title which has the effect to except such lands from the provisions of the statutes. A highway is not to be established under the statutes cited over land so claimed.</p> <p>4. Abandonment op Homestead — Effect. The declarations of a highway by the Board of County Commissioners over public lands claimed as a homestead, is without effect, though the entry was subsequently abandoned. The rights- of the public in the supposed highway are tested by the conditions existing at the time of the attempted establishment.</p> <p>5. Rights and Remedies of Landowner. A landowner in possession is not under duty to bring a direct action to vacate a defective proceeding to establish a road over his lands. He may rely upon his possession until his right is assailed.</p> <p>6. Appeal and Eeeoe — Wrong Reason for Right Judgment. Where the court below reached a correct conclusion the judgment will not be reversed, though based on erroneous reasoning.</p> <p>7. Findings on Conflicting Evidence, will not be disturbed.</p> <p>8. Highways — By Prescription. Action to enjoin a road overseer from opening an alleged public highway. Evidence held insufficient to establish a highway by prescription.</p>

<p> Error to Phillips County Court, Hon. S. S. Worley, Judge. </p>

<p>Constitutional Law — Due Process of Law. The charter of Denver of 1904 provides for the erection of park districts, and the acquisition of lands for public parks; and that when the cost of a park site is determined the clerk shall give notice by-advertisement for ten days in a newspaper of general circulation, specifying the cost of the improvements, and the share apportioned to each lot or tract in the district, and that objections filed within sixty days will be determined by the supervisors, at its first regular meeting, after said sixty days. By sec. 300 it is provided that at the meeting specified the Board of Supervisors sitting as a board of equalization shall hear all such objections, and may recommend modifications of the apportionment, and the Board of Public Works may make such modifications as seem just, or confirm the first apportionment, and the court shall then assess the cost of the improvements against all real estate in the district. Bill to restrain the enforcement of an assessment against property of plaintiffs for the acquisition of lands as a park, the plaintiffs contending that by section 300 the Board of Equalization has power to suggest only alterations in the assessments, and property owners were thus without remedy. Held, on the authority of Denver v. Londoner, 33 Colo. 104; Londoner v. Denver, 210 U. S. 373; Londoner v. Denver, 52 Colo. 15, that the provisions in question constitute due process of law, and that plaintiff having failed, after ample opportunity, to present their objections to the proper board, can not now be heard to question the regularity of the proceeding.</p>

<p>1. Appeal and Error — Abstract. Questions not presented by the abstract are not considered.</p> <p>2. Finding on Sufficient Evidence, will not be disturbed.</p>

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

<p> Error to Jefferson County Court, Hon. Alexander D. Jameson, Judge. </p>

<p>Jury — Denial of Peremptory Challenge, to one entitled, is error.</p>

<p>Mining Claims — Application for Patent — Adverse Suit. A stockholder in a corporation entitled to a mining claim to which another applies for a patent, may not interpose an adverse claim and maintain an action in support of it.</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 the Court of Appeals. </p>

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

<p>The evidence sustaining the finding below the judgment was affirmed.</p> <p> Error to Fremont County Court, Eldred, Judge. </p>

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

<p>Verdict upon conflicting evidence, supersedeas denied and judgment affirmed.</p> <p> Error to Denver County Court, Hood, Judge. </p>

<p>Supersedeas denied and judgment affirmed.</p> <p> Error to Larimer District Court, Hon. Robert G. Strong, Judge. </p>

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

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

<p>1. Justice op the Peace — Judgment—Presumptions. No presumption is indulged in favor of the judgment of a justice. Jurisdiction must affirmatively appear.</p> <p>2. -- Docket. Under Rev. Stat. see. 3892, the docket of a justice must in every case show the amount and nature of the plaintiff’s demand. The judgment will not be referred to, to supply the omission of the required statement.</p> <p>3. -- Evidence Aliunde, may supply the omission.</p> <p>4. - Burden of Proof, is upon the one claiming under the judgment.</p>

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

<p> Error to Chaffee District Court, Hon. James L. Cooper, Judge. </p>

<p>1. Wills — Contest—Undue Influence — Evidence. Only general rules can be prescribed as to the character and amount of evidence to establish undue influence. The evidence need not, nor can be, of the direct and positive character required to establish a physical fact. Circumstances from which undue influence may reasonably inferred suffice.</p> <p>Every favorable inference, fairly deducible from the facts shown, must be considered as facts proved in favor of the contestant.</p> <p>If several inferences may reasonably be made, the one most favorable to the contest must be accepted.</p> <p>That the distribution of the testator’s estate is contrary to natural justice, may, with other facts, be considered; but that the will is not such as the jury or the court would have made, is not sufficient to deny it probate.</p> <p>It is not for the jury to determine whether the will is a just and proper distribution of the testator’s estate.</p> <p>The evidence examined and held to warrant the verdict of the jury in favor of the contestant.</p> <p>2. -Probate — Questions for the Jury. The effect of intemperance in the use of intoxicating liquors is for the jury.</p> <p>3. -Verdict — Effect. The verdict of a jury is of special importance, and should not be disregarded except for grave reasons clearly apparent.</p> <p>4. -Trial Judge — Approval of Verdict. That the trial judge has refused to disturb the verdict is entitled to consideration upon error brought.</p> <p>5. - Attesting Witness, may testify in favor of those contesting the probate of the will. The credit to be awarded to his testimony is for the jury.</p> <p>6. -Habitual Intemperance. Instruction as to the effect of, and the duty of the jury in considering the evidence, approved.</p>

<p>1. Recall from Office — Protest—Duty of Secretary of State. The Secretary of State is not under duty to immediately file in his office, a paper presented to him as a petition for an election to recall an officer.</p> <p>It is his duty to examine what is presented, and determine whether it complies with the requirements of the constitutional amendment (Laws of 1913, 673 sec 2), and he is entitled to a reasonable time for such examination.</p> <p>. 2. -Petition — When Filed. A petition for the recall of an officer was presented to the Secretary of State, and was indorsed by him “Received for Consideration November 2, 1915,” and was finally filed by him on the 12th. A protest was filed on the 27th of the same month. It was shown that at the presentation of the petition, it was agreed between the Secretary and those in charge of the petition, that the paper should not be filed until the Secretary had carefully examined it. The delay in the examination was sufficiently excused. Held that the petition was in fact filed on the 12th, and not on the 2d of November, and the protest was in time.</p>

<p>1. Master and Servant — Master’s Duty to Inspect, Machinery. The rule requiring the master to inspect the machinery used by the servant has no application to simple tools, the condition of which is as evident to the servant as to the master, e. g., an ordinary hammer which the servant provides for his own use.</p> <p>2. -- Order to Servant Construed. An order as to a particular matter construed not to change the established method of work.</p>

<p>1. Appeal and Error — Extent of Review. Action for contribution. The defendant instituted an equitable action to restrain the prosecution. An injunction allowed in this action was after-wards dissolved, and the action dismissed. The defendant in the original action afterwards filed new and additional pleadings therein. Judgment was given for the plaintiff. An exception had been taken to the interlocutory decree in the injunction suit, but no writ of error was sued out to review the final order. Held that upon error to the judgment in the original action in the proceedings in the defendant’s action for an injunction were not reviewable.</p> <p>2. -Presumptions. Upon a general finding in the court below, conflicts in the testimony are resolved in favor of the defendant in errorr.</p> <p>3. Principal and Surety — Cosureties—Surety by Bequest. That one becomes co-surety with another at the latter’s request does not relieve-him from liability to make contribution.</p> <p>4. -Cosureties — Contribution. The right to contribution has its foundation in, and is controlled by principles of equity, it is not founded upon any express contract. One who has paid nothing upon a judgment recovered against him as surety is not entitled to contribution from a co-surety.</p> <p>A bank had agreed to provide funds for a contractor upon certain public works. The contractor purchasing machinery for the work, plaintiff, an officer of the bank, the bank being incapable in law to become surety, became surety for the price of the machinery, and defendant, likewise, at plaintiff’s request. Judgment was recovered against plaintiff and defendant for the price of the machinery, and the judgment having been satisfied, plaintiff sued for contribution. It appearing that the judgment was paid by the bank, and not by plaintiff, and the plaintiff was under no liability to the bank, held the action must fail.</p>

<p> Error to Denver District Court, Hon. Granby Hillyer, Judge. </p>

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

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

<p>1. Landlord and Tenant — Assignment of lease. The landlord’s assent to the tenant’s assignment of his lease does not relieve the latter of liability for the rent.</p> <p>Nor does the acceptance of rent from the assignee.</p> <p>2. -Landlord’s Failure to Record a Chattel Mortgage, securing the rents, does not impair his right to look to the lessee for rents.</p>

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

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

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

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

<p> Error to Weld District Court, Hon. Robt. C. Strong, Judge. </p>

<p> Error to the Conejos District Court, Hon. Jesse C. Wiley, Judge. </p>

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

<p>1. Corporations — Dissolution—Effect. Under Rev. Stat. sec. 899 an- action may be maintained against a dissolved corporation, upon a cause of action arising before dissolution, and judgment may go against it, notwithstanding the provisions Rev. Stat. sec. 894.</p> <p>The expressions of the opinion in Kipp v. Miller, 47 Colo. 598, upon this matter are not dictum.</p> <p>2. -Stock — How Transferred. The stockholders’ mere bill of sale of the stock does not pass title thereto as against a subsequent attaching creditor.</p>

<p>1. Mining Fixtures — Not Part of Realty. Machinery, belting, attachments, tools and implements, placed upon mining property by one operating under a lease, with an option to purchase, are trade fixtures, and in the absence of any agreement to the contrary may be removed by the tenant at any time during the term, or within a reasonable time after its termination.</p> <p>2. -Subject to Attachment. The fixtures placed upon a mine by tenant are subject to attachment at the suit of his creditors.</p>

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

<p>1. Payment — Forged Endorsement. A bank may not charge to the depositor an amount paid by it on a forged endorsement of the depositor’s check, unless the payment is attributable to some fault of the depositor, or the money has actually reached the person for whom the depositor intended it.</p> <p>The check was payable to a foreign Consul. The forgery was committed by his clerk. The clerk had for some time been authorized to endorse drafts and like instruments, for deposit. This not having been communicated to defendant, was held immaterial.</p> <p>2. Negotiable Paper — Description of Payee. That a check was payable to “The Royal Consulate of Italy”, was held not to make it payable to bearer.</p> <p>Any description of the payee by which he is reasonably identified is sufficient to bring the case within the protection of the rule against payment upon a forged endorsement.</p>

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

<p>1. Public Work — Payment to Contractor For. A town having agreed with the contractor for certain public works, after the completion of the works, as to the amount due him, and the time and conditions of payment, it was held a waiver of the provisions of Rev. Stat. sec. 5407.</p> <p>2. Statute — Waiver of. Sec. 5407 of the Revised Statutes provides that before any payment shall be made to a contractor for public works the contractor shall present to the trustees of the town a statement in writing showing the amounts owing by him for labor, etc. The town having, after the completion of the works entered into a contract with the contractor as to the balance due him, and the time and conditions of payment, an action was brought by the contractor, under this contract. Held the contract waived the provisions of the statute.</p> <p>3. Non-suit — Grounds of. A non-suit is not to be granted for the omission of plaintiff to establish the converse of an affirmative defense pleaded by defendant.</p> <p>4. -Motion for~Ejfect. Defendant’s motion for a non-suit admits the truth of the evidence produced on the part of the plaintiff, and every legitimate inference therefrom, interpretated most strongly against defendant.</p>

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

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

<p>1. Municipal Corporation — Ordinance—Presumptions. An ordinance within the powers granted to the municipality is presumed to be reasonable, unless the contrary appears upon its face.</p> <p>2. -Reasonableness of Ordinance. An ordinance enumerating many places where men usually assemble or pass, provided that no person “shall drink” certain designated intoxicating liquors, while in any of these places “unless the person occupying the building be duly licensed by the city to sell, etc.” held that the manifest purpose of the ordinance is to prevent the drinking of intoxicating liquors in public view, and particularly of children and youth, and thus improve the public morals; that including all of the places of the classes designated, it is therefore authorized by Rev. Stat. sec. 6669.</p> <p>3. Statutes — Construed. A statute conferred upon towns and cities power “to license, regulate or prohibit, the sale or giving away of intoxicating liquors.” Held not to exclude the adoption of an ordinance prohibiting the drinking of all such liquors in public places.</p> <p>4. Maxims — Expressio—Unius, Exclusio, Alterius, is in no sense an unalterable rule.</p> <p>5. Constitutional Law — Municipal Powers. Nothing in Article XXII nor the prohibitory act of 1911 withdraws from towns and cities the powers granted by Rev. Stat. sec. 6669.</p>

<p>1. Contracts — Ratification. Several irrigation companies associated together for the protection of their rights, appointed a board of directors, and a president, authorizing the latter to have entire charge of the affairs of the association, under the supervision of the directors. The president employed attorneys who conducted litigations over several years, greatly to the advantage of the members of the association. There was no vote of the directors approving the selection of the attorneys but the president reported their employment, at a formal meeting of the board, and no objection was made then or after- , ward, during the pendency of the litigation. Held a ratification binding each member of the association.</p> <p>The result is the same though the association be treated as having no legal existence.</p> <p>2. Corporations — Partnership of. Several private corporations having similar interests formed an association for the protection of the rights common to all. By the authority of those to whom they committed, the management of their common affairs, attorneys were employed and a litigation carried on for several years, with the knowledge, and to the profit of all. All are liable to the attorneys’ bill, even though the association be regarded as without legal existence.</p>

<p>Rooming House — Lien of Keeper. Section 4013 of the Revised Statutes applies to hotels, boarding houses, rooming houses, and the like.</p> <p>The evidence examined and held to warrant a judgment establishing the lien of a keeper of a rooming house upon the goods of the tenant.</p> <p>Under Rev. Stat. sec. 3021 the goods of the wife are chargeable with the lien equally with those of the husband.</p>

<p>1. Utilities Commission — Review of Orders. Under see. 52 of c. 127 of the laws of 1913 the review in this Court of the orders of the Public Utilities Commission is controlled by the considerations applying in other cases, except as otherwise provided by the act.</p> <p>This court must determine whether the order of the Commission in question is just and reasonable, and supported by competent evidence heard by that body. This duty the court cannot escape.</p> <p>The court is not, however, to overrule the order of the Commission where there is a substantial conflict in the testimony. The deductions of witnesses from the testimony, are not, in themselves testimony, and conflicts in such deductions are not considered.</p> <p>2. -Power of the Court. The court is without authority to prescribe in detail the rate, or division of the rate, to be charged by the several companies participating in the service. Sec. 52 of the statute simply authorizes it to affirm, vacate, or modify the order of the commission.</p> <p>3. Evidence — Judicial Notice, will not be taken of the records of the Utilities Commission.</p> <p>4. Utilities Commission — Considerations Controlling Its Decisions. The Commission is without authority in fixing railway rates, to take into account rates of which no evidence was offered.</p> <p>Though the law imposes upon the Commission the duty to keep itself advised of the condition of the railway service, they are not to take this knowledge into account in deciding controversies as to divisions of the through rate, between the carriers participating in the service.</p> <p>Where the Commission reduces the rates for the carriage of a commodity over different lines, inequalities in former divisions are not to be perpetuated.</p> <p>That one of the several roads participating in the carriage, has, acting under compulsion, accepted an unreasonable share of the previous through rate does not warrant the continuation of this unreasonable division.</p> <p>The strategic position of a railway may in the matter of the division of a through rate, be considered, but it is not the controlling factor.</p> <p>A railway which carries a coal for which there is an increasing demand, should not be discriminated against because this article is produced upon its lines. It is of public interest that such coal should move freely to the regions where it is demanded.</p> <p>Where several companies participate in the carriage of a commodity produced upon one of them, the whole line of which is within the state, the number of cars furnished by the other companies is not to be considered in fixing the division of the through rate, where there is no testimony as to the number of cars furnished for the traffic within the state, or the number furnished for the carriage to points beyond the state.</p> <p>A reasonable division of a joint rate is not to be denied to one of those engaged in the service because of derelictions, past, present, or anticipated.</p> <p>A company having no terminal facilities at the point where it delivers freight to other companies participating in the through carriage must pay the customary reasonable charge made for switching by other companies.</p> <p>If an excessive charge is made for this service the company aggrieved is not to retire from the service, but to apply to the Commission for relief.</p>

<p> Error to the Public Utilities Commission. </p>

<p>1. Deed — Effect. In an action for the recovery of lands in an irrigation district, under a tax deed, judgment may, under sec. 22 c. 109 of the Laws of 1915 be given, that defendant within a time limited pay into court the tax and interest evidenced by the deed, and the cost of its execution and record, and that in default of such payment plaintiff is declared the owner of the land, and entitled to possession; — and this, even though the deed is void .upon its face. Dussart v. Abdo. Co., 57 Colo. 423, and Silford v. Stratton, 54 Colo. 248, distinguished.</p> <p>2. Constitutional Law — Regularity of Tax Deed, is subject of legislative control. The final provision of sec. 22 of c. 109 of the Acts of 1915, .is not unconstitutional.</p>

<p> Error to Denver District Court, Hon. A. W. McHendrie, Judge. </p>

<p> Error to Prowers County Court, Hon. C. B. Thomam, Judge. </p>

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

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

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

<p>1. Husband and Wipe — Common Law Marriage — Evidence. Prosecution for non support under Laws of 1911 c. 179. The prosecutrix and accused had cohabited as man and wife for more than six years. At the beginning of this relation the accused was already married to another woman. Four years later this lady secured a divorce. During all their cohabitation the accused invariably addressed the prosecutrix as his wife and introduced her as such to all whom he met; and they were regarded by all their acquaintances as husband and wife. Held, a common law marriage.</p> <p>2. -Express Agreement not Necessary. An agreement, in words, to be or become husband and wife is not necessary to a common law marriage. The agreement may be inferred from cohabitation and report.</p> <p>3. Criminal Law — Error—Record—Effect. The record reciting an arraignment' and plea is received in the court of review as importing absolute verity.</p> <p>4. Juvenile Court — Jurisdiction The Juvenile Court is a court of record, and, under sec. 4 of c. 179 of the Acts of 1911, has jurisdiction of an information for the non-support of the wife of the accused.</p>

<p>1. Deed — Execution—Blank as to Grantee, parol authority to fill is sufficient. Such authority may be inferred from the conduct of the party, justifying the inference.</p> <p>One who delivers to another a conveyance of land, blank as to the grantee, but with authority to fill this blank, is estopped to deny the instrument where the agent has acted in conformity with the authority.</p> <p>2. -Delivery. A deed becomes effective only upon delivery. Delivery may be made by an agent, and the agent authorized thereto may insert the name of the grantee.</p> <p>3. Seals — Abolished. A writing under seal is no more than a simple contract (Rev. Stat. sec. 682).</p>

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

<p>Charitable Association — Charter Construed. Defendant was an association of the officers and employees of a railway company, incorporated under Gen. Laws 1877, sec. 224. The purpose, as stated in the articles of association, was, by the collection of monthly dues from the members, to create a fund for the relief of the diseases and injuries of its members, to equip and maintain hospitals, employ physicians and surgeons, and purchase medical and hospital supplies. In the year of its organization, the association constructed and has ever since maintained a hospital, and two surgeons were placed in charge thereof, at slender and insufficient salaries which have never been increased; and in order to induce competent surgeons to accept these positions, the directors permitted them to admit patients, not members of the association, paying the association the regular and customary hospital charge, and paying the surgeon such fee as the two might agree upon. No non-member patient was ever admitted to the detriment of the member patients, and none of the funds of the association were applied to the treatment or maintenance of the non-member patients. Held, that the admission of the non-member patients was, by implication, within the general scope of the purposes of the association, and as there was no express restriction, the practice was not ultra vires.</p>

<p> Error to Chaffee District Court, Hon. Charles A. Wilkin, Judge. </p>

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

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

<p>1. Divorce and Alimony — Change of Conditions — Effect as to Alimony. After the allowance of temporary alimony judgment was recovered in another court against'both husband and wife, for medical services rendered to the wife in the meantime. The husband made no defense to the action. On the petition of the wife the husband was required to pay the amount of this judgment as well as the 'wife’s hospital bill.</p> <p>2. Appeal and Error — Judgment. Pending an action for divorce, the wife incurred a bill for medical services. On her petition the husband was ordered to pay the amount of the wife’s liability, being a bill at a hospital, and a bill due a surgeon. It being objected that this required payment to those not parties to the suit, the court declined to reverse the judgment, but directed its modification, requiring payment of the proper amounts into court, to be used by the wife in discharging the indebtedness in question.</p>

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

<p> Error to Lake District Court, Hon. Chas. Gavender, Judge. </p>

<p>1. Irrigation Districts — Warrants—Remedies of Holder. The holder of a warrant of an irrigation district is not entitled to judgment for the amount thereof. His sole remedy is mandamus.</p> <p>That the warrant is chargeable to “general fund for maintenance” is not important.</p> <p>The duty of the district board and the county commissioners, under the statute, expounded.</p> <p>2. Pleadings — Demurrer—Several Counts — Effect. Where of several counts one contains a statement, nowhere disputed in the others, which shows that in no event is the plaintiff entitled to his action, a demurrer to the whole complaint is properly sustained.</p>

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

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

<p>1. Industrial Commission — Review of by Supreme Court, extends only to the questions of law (Laws 1915, c. 179, sec. 83)'. The Court considers only the legal question whether there is evidence to support the finding; not whether the Commission misconstrued its probative effect.</p> <p>2. -Rehearing — Proceedings upon Construed. One claiming compensation for an injury, under the statute, was heard twice by the Commission, and variant orders were made. At a later hearing, entirely new issues were presented. Testimony relating to a new malady, alleged to have recently developed as a result of the accident, was heard. The proceedings were in effect a new trial upon all the issues, and the findings were adverse to the claimant. It was held that the District Court was without jurisdiction to review the action of the Commission, until the claimant had first petitioned for a rehearing, as required by secs. 69, 77, of the act.</p>

<p>Injunction — -To Restrain Crime. Courts of equity are not equipped for the administration of criminal law, and attempts to extend the jurisdiction to that field, should receive no favor.</p> <p>Where the direct and immediate effect is to protect property, an injunction may go, even though incidentally it enjoins the perpetration of a crime; otherwise where such result is indirect and inferential only.</p> <p>Bill to restrain defendants from buying ores known to be stolen. It was contended for plaintiff that enjoining the purchase, would indirectly restrain the theft. The lax administration of the criminal law, and the difficulty proving the theft of the minute quantities often stolen, was also urged.</p> <p>Considering that if the theft of one class of property may be enjoined, the owners of other properties liable to similar depredations would be entitled to the same relief; that the awarding of the equitable relief prayed for must be attended by the same difficulties as the prosecution of the theft, and would in effect be a denial of the right of trial by jury, to one accused of crime, the injunction was denied.</p>

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

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

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

<p> Error to Weld County Court, Hon. Herbert M. Baker, Judge. </p>

<p>1. Fraud- — Preferring Creditor. Even by an insolvent, is not iniquitous.</p> <p>2. - Confession of Judgment, for a debt justly due is not a fraud upon other creditors, even though it affords a preference, and may have the effect to delay other creditors. That the defendant might have delayed the creditor in whose favor the confession is made, and that the confession is to bear interest at less than the legal rate, and the debtor is promised the assistance of creditor in disposing of his property, held, no evidence of fraud.</p> <p>3. Appeal and Error. On bill by creditors against an insolvent debtor to vacate a confessed judgment, a receiver of all the properties of the insolvent was appointed, without hearing the creditor in whose favor the judgment was confessed, although he was party to the action. Afterwards the judgment confessed was vacated, and the execution levied thereunder set aside, Upon reversing the residue of- the judgment, the order appointing the receiver was not disturbed.</p>

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

<p> Error to Weld County Court, Hon. Herbert M. Baker, Judge. </p>

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

<p>1. Bail — Surrender of Principal. Bail who surrenders his principal before final judgment upon sci. fa. is exonerated (Rev. Stat. see. 1948).</p> <p>2. Judgment — What Is — Record Construed. Action upon a bail bond. Issues found for The People, and “ten days given in which to file a motion for a new trial. The entry of judgment stayed during that time.” Held not a judgment, and that upon surrender of the principal by the bail, and payment of the costs in the criminal prosecution/as well as in the civil action on the bond the surety was exonerated.</p>

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

<p> Error to Denver Comity Court, Hon. Ira C. Rothgerber, Judge. </p>

<p> Error to Lake County Court, Hon. Thomas F. O’Mahoney, Judge. </p>

<p> Error to Weld County Court, Hon. Herbert M. Baker, Judge. </p>

<p> Error to Adams County Court, Hon. W. C. Hood, Jr., Judge. </p>

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

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

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

<p> Error to Denver County Court, Hon. Herbert M. Baker, Judge. </p>

<p>Irrigation District — Default in Interest — Remedy. Under the provisions of secs. 3456 and 3459 of the Revised Statutes, the sole remedy of the holder of the bonds of an irrigation district, if default be made in the payment of interest, is by mandamus. An ordinary action demanding judgment for money will not lie. Rio Grande Junction Co. v. The Orchard Mesa District, 64 Colo., followed.</p>

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

<p>1. Pleading — Technical Defects. An allegation in a petition of intervention that principal and sureties executed bonds to United States aggregating'$155,000, each surety obligating himself to the extent and in the amount set opposite his name did not aifect the substantial rights of the sureties, where the petition set out a copy of the bond which showed on its face that the total obligation was $150,000.</p> <p>2. Bond — Alteration. Where the contractor was to furnish bond for $150,000, and with the different sureties executed separate bonds, each reciting that the instrument was a part of the security in the bond of $150,000 required of the contractor, each instrument showing the limit of individual obligations of the sureties on such bond, the fact that the aggregate of such limits was $155,000 did not constitute a material alteration of the bond for the obligation of the sureties rests upon the primary obligation of the principal.</p> <p>3. Contract — Abandonment. Under contract providing that upon contractor’s neglect or refusal to provide means for energetic and satisfactory compliance with the contract within the time specified in a notice, the United States could suspend the contract and take charge of and complete the work, a written waiver by the contractor of the time given in such notice served upon him, followed by his leaving the work, was a voluntary abandonment of the contract.</p> <p>4. Abandonment op Contract — Notice to Surety — Completion of Work. Where contractor waived time given him in notice to remedy matter complained of and abandoned the work, his obligee was neither required to wait until the termination of such time to take over the work nor to notify the sureties of his intention so to do.</p> <p>5. Pleadings — Admissions. A party is bound by the allegations and admissions of his own pleadings, or of those of another which he adopts.</p> <p>6. Stipulations — Effect. In action on government contractor’s bond a stipulation between the creditors and the sureties that the contract or has been ousted from his work by the United States without his fault, is not binding on the United States.</p> <p>7. Contract — Modification—Release of Sureties. Waiver of contractor of time specified in a notice served upon him to comply with certain requirements of the contract did not constitute a • modification of the contract so as to release a surety, but was only proof that the contractor refused to proceed further.</p> <p>8. Bankruptcy — Debts Dischargeable — United States. Under Bankruptcy Act (Act, Cong. July 1, 1898, Chap. 541, 30 Stat. 544), liability as a surety on a government contractor’s bond to the United States is dischargeable.</p> <p>9. United States — Bond—Separate Action — Obligees. Under a government contractor’s bond given under Act Cong. Aug. 13, 1894, Chap. 280, 28 Stat., 278, the United States and persons supplying the contractor with materials may, upon breach of the bond, maintain separate actions against the sureties.</p> <p>10. Principal and Surety — Interest. The surety on such government contractor’s bond is liable for interest from the time of breach of contract.</p> <p>11. - Discharge of Surety — Payment. Under a government contractor’s bond, where materialmen and laborers and the United States have separate rights and may maintain separate actions on the bond, payment by surety to either one discharges his obligations as to the others to the extent of the payment.</p> <p>12. Trial — Issues—Findings. A finding by the court upon an issue it would not permit to be made, is error.</p> <p>13. Bond — Contractor—Supplies—Liability of Surety. Under a bond executed under Act Cong. Aug. 13, 1894, Chap. 280, 28 Stat., 278, in which reference was made to a contract to perform work under the provisions of the “Reclamation Act” (Act June 17, 1902, Chap. 1093, 32 U. S. Stats, at Large, p. 388), the surety is liable for supplies for buildings, dining rooms, furniture, and means of provisioning workers, where the work which would take months to complete, was to be performed many miles from any town.</p> <p>14. Government Contract Bond — Separate Action — Postponement. A cause of action which has arisen upon a government contractor’s bond' given under Act Cong. Aug. 13, 1894, Chap. 280, 28 Stat., 278, in favor of persons supplying a government contractor with materials in the prosecution of work under the “Reclamation Act” (Act June 17, 1902, Chap. 1093, 32 U. S. Stat. at Large, p. 388), need not wait the outcome of a suit upon the same bond in favor of the United States.</p> <p>15. United States — Government Contract — Bond—Obligees—Priority. Under a government contractor’s bond which gives individual creditors and the United States independent causes of action, such as a bond, Act Cong. Aug. 13, 1894, Chap. 280, 28 Stat., 278, priorities between individual creditors and such government should be as though between man and man.</p>

<p>1. Officer — Ex Officio. Where the statute provides that an officer shall act ex officio in another capacity, if the duties of each are of the same general nature, and inseparably blended in the statute creating the independent office, the incumbent holds but one office. If the duties of the two are distinct and governed by different and independent regulations, he holds two distinct and separate official positions.</p> <p>On the first day of December, A. D,, 1902, the City of Denver, and that part of Arapahoe included within its limits, were by constitutional amendment (art. XX) merged into the City and County of Denver. The inhabitants of the new municipality were authorized to frame a charter by which their affairs . should be controlled and as a temporary measure of government it was provided that the charter and ordinances of the City of Denver should, “for the time being only, and as far as applicable”, be the charter and ordinances of the City and County; that certain of the city officers’ names should continue, occupying similar offices in the city and county, and that the District Attorney should be ex officio attorney of the city and county.</p> <p>The County of Arapahoe was then a Judicial District (Laws 1891, 136), and the plaintiff was the District Attorney therefor, duly elected and qualified. The constitutional amendment provided that the new municipality should constitute a Judicial District.</p> <p>Plaintiff, upon the adoption of the constitutional amendment, qualified in the office of the Attorney of the City and County of Denver, and performed the duties of that office until December, 1904.</p> <p>Held that the office of attorney of the City and County of Denver was an office separate and distinct from that of District Attorney, and that plaintiff was entitled to the salary prescribed by the charter and ordinances of the City of Denver, in force at the date of the talcing effect of the constitutional amendment,</p> <p>2. Constitutional Law — Art. XX Construed. It was contended for the defendant that the office of Attorney of City and County of Denver, ex officio, if separate and distinct from the office of District Attorney, was a new office, without any prescribed salary, that the provisions of the existing charter and ordinances of the City of Denver were not “applicable” to the new conditions.</p> <p>But the court were of the opinion that this was mere assumption, that prima, facie all provisions of the former charter and ordinances were applicable, and that it was without authority to declare inapplicable any of such provisions, unless the inapplicability was apparent from something in the constitutional amendment, that if the ex officio attorney of the city and county was not entitled to compensation for the services rendered in that capacity, he was, for the same reason, without any power or duty in that function, which was to impute to the framers of the constitutional amendment the supreme folly of creating an office without either duties or authority, and a municipal corporation without any officer authorized to represent it in the courts, and without authority to employ such officer.</p> <p>The purpose of article XX, and the economies contemplated thereby considered and enlarged upon. i</p> <p>3. Construction — Its Office and Limits. A legislative purpose does not take effect unless expressed in written words.</p> <p>From this follows the cardinal rule of construction that the intent of the legislature must be found in the words of the statute. If this be clear, and capable of but one meaning, there is neither room nor necessity for construction, and it is the duty of the courts to enforce the law as written without consideration of its policy, justice, or wisdom. When the written words may reasonably have different meanings, then, and only then, may the court consider the general purpose of the enactment, to aid in solving the ambiguity.</p> <p>4. Interest — Salary Public Officer. A public officer whose salary is withheld from him is not entitled to interest thereon. He is not a creditor within the meaning of the statute, prescribing the rate of interest.</p>

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

<p>1. Trial — Questions for Court and Jury. It is the province of the court to construe a contract, and to submit the interpretation of a writing to the jury is error.</p> <p>The jury determine whether compliance with a contract is shown; and where an agreement is to be performed in reasonable time, e. g., as where no time of performance is specified, the question whether it was so performed is for the jury.</p> <p>2. Contract — Construed. The term of a lease was to begin at a day specified. The lessor agreed to make certain improvements, but the time of completion was not mentioned. Held that nothing to the contrary appearing in the words of the writing, the law presumes an intent that the improvements were to be made within a reasonable time.</p>

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

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

<p>1. Workmen’s Compensation Act — Construction. Statutes of this character are to be liberally construed, to the end that their beneficent purpose may be accomplished.</p> <p>2. -When is Employee in the Course of his Employment. One employed by a building company as foreman, in charge of the erection of certain buildings at different localities in several of the western states, had completed one of these buildings and had taken passage with a friend in an auto car, to go to another locality, in a different state, where he was to proceed with another building. He came to his death from the accidental overturning of the auto car. Held that he was “performing service arising out of and in the course of his employment,” within the meaning of the statute. (Laws 1915 c. 179, sec. 8.) Industrial Commission v. Anderson, 169 Pac. 135, distinguished.</p> <p>3. -Statute — Extra Territorial Effect. The law of the place of contract controls the rights and liabilities both of the employer and employee. Both being citizens of Colorado and residing here, and the contract of employment having been made here, held that the death of the employee, occurring in another state, while there upon the affairs of the master, and under his orders, entitled his widow and child to compensation.</p>

<p>Criminal Law — Autrofois acquit. Acquittal of a charge of forgery is no bar to an indictment for perjury, committed by the accused in his trial for the forgery.</p>

<p> Writ of Review to the Public Utilities Commission. </p>

<p>1. Appeal and Error — Instructions Curing Error in Admission of Evidence. An error in the admission of evidence may be cured by an instruction.</p> <p>2. - What may be Assigned for Error. Error cannot be assigned upon the refusal of an instruction which is in direct conflict with another requested by plaintiff in error.</p> <p>3. Negligence — Imputed. A policeman in obedience to a command of his superior officer, takes passage in an auto car, to answer a riot call. He had no voice in the appointment of the chauffeur and no control over him. The negligence of the chauffeur in driving at an intemperate speed is not imputed to the policeman.</p> <p>4. -Questions for the Jury. Whether the policeman, in such case, is negligent in not protesting at the furious course of the chauffeur is for the jury.</p>

<p> Error to Delta County Court, Hon. William W. Dingman, Judge. </p>

<p>1. Parent and Child — Parent’s Duty to Support. Under chapter 179 of the Laws of 1911 the father of an illegitimate child under sixteen years of age may be prosecuted for his failure to support it, without any prior adjudication of the paternity and this whether the child were begotten before or after the enactment of the statute.</p> <p>No provision of the bastardy act (Rev. Stat. c. XII) has any bearing upon such prosecution.</p> <p>2. Constitutional Law — Title of Act. The statute requiring the father to support his illegitimate child is not invalidated by the omission to mention illegitimate children in the title.</p> <p>3. -Ex Post Facto Legislation. A statute punishing the failure to support an illegitimate child, held effective, where the child was begotten before the enactment of the statute.</p>

<p>1. Contracts — Construed. Defendant executed his promissory note to plaintiff, agreeing therein to ship all fruit raised by him through the Association until his indebtedness was paid, and authorizing the Association to deduct from the net returns from the fruit, an amount sufficient to pay the note. Held no privilege reserved to defendant but a provision for the benefit of the Association, and one which the Association might waive.</p> <p>2. -Defenses. The note being given for stock in the Association, that the stock is not of the value anticipated by defendant is no defense to an action upon the note, no fraud being charged or proven, and no claim being made of any direct damage suffered by defendant, by reason of any act or omission of the Association.</p>

<p>Appeal and Error — Finding not manifestly against weight of evidence, will not be disturbed.</p>

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

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

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

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

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

<p>1. County — Publication of Tax List — Liability. Where certain names and descriptions are suppressed by direction of the treasurer, after the first publication, the publisher of the newspaper is not entitled to the full statutory price, as if ■ the matter were published.</p> <p>2. -Number of Publications. The statute allows but four publications of the delinquent tax list. The county treasurer’s order for a greater number is without effect to charge the county.</p> <p>3. -Measurement. The printer’s compensation is to be computed by rule measurement, rather than by line. Twelve lines of the type of the prescribed size, and width of line, is the basis of the statutory inch.</p> <p>In printing the display headings necessary blank spaces are to be paid for as if in solid type.</p>

<p> Petition for WHt of Habeas Corpus. • </p>

<p> Error to Park District Court, Hon. James L. Cooper, Judge. </p>

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

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

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

<p>1. Railway Company — Fencing Track — Statute Construed. Under chapter 135 of the Acts of 1911 injury by a locomotive to an animal upon the tracks of a railway is prima facie evidence of negligence.</p> <p>2. Damages — Must be Established, by Evidence, that the plaintiff a layman ignorant of the rules of procedure in court of justice assumed to manage his own cause affords no ground to relieve against the effect of this omission.</p>

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