Volume 66 — Colorado Reports

<p>1. Denver — Civil Service — Period of Probation. ■ Under the charter of Denver and the rules of the Civil Service Commission an appointment to a municipal office within the civil service is probationary for the space of six months and no longer. After the expiration of six months from appointment the officer can be removed only after complaint, due notice, and hearing.</p> <p>It is the appointment, and not the approval thereof by the Civil Service Commission, which fixes the commencement of the probationary period.</p> <p>2. Mandamus — When Allowed. The' Civil Service Commission in executing the command of the statute act in a ministerial capacity. An officer unlawfully removed may be restored by mandamus.</p>

<p>1. Irrigation District — Action against — Venue. An action against an irrigation district is controlled by sec. 25 of the Code. An action for an injury to lands by seepage from the ditch of an irrigation district is properly brought in the county in which the lands are situated.</p> <p>2. Pleading — Complaint for Injury to Lands by Seepage Water, alleging that the waters of defendant’s ditch were negligently permitted to escape therefrom to plaintiff’s land, to the injury thereof, without any reasonable or proper effort, to prevent it, held sufficient.</p> <p>3. Appeal and Error — Verdict on Conflicting Evidence, is not disturbed where there is in the record sufficient evidence to sustain it.</p>

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

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

<p>1. Judgement — Void or Irregular. Judgment of conviction upon a plea of guilty, without an examination of witnesses, as required by Rev. Stat. sec. 1979, is not void, but merely irregular. Notwithstanding the irregularity the offender, upon a second conviction of the same offence, is to suffer the increased penalty (sec. 22, c. 98, Laws 1915)</p> <p>2. Criminal Law — Second Ofíense — Information—Verdict. A ver- . diet of “guilty as charged, etc.,” upon an information alleging a former conviction, is sufficient to sustain a conviction of felony and imprisonment in the penitentiary, under Laws 1915, c. 98, sec. 22.</p> <p>3. Constitutional Law — Statute—Who may Question? Only those whose rights are affected. Plaintiff in error was convicted of a second offence, and judgment was given according to the statute (Laws 1915, c. 98, sec. 22)</p> <p>On error he complained that the statute making the record of the first conviction conclusive, was unconstitutional. But he had made no attempt to contradict or question this record. Held he was not in position to assail the constitutionality of the statute.</p> <p>4. Criminal Law — Acts done Subsequent to the Offence Charged, are admissible upon the question of intent.</p> <p>The admission of such evidence in rebuttal not considered upon error, where no objection upon this ground was made at the trial.</p> <p>5. Evidence — Order of Proof, is largely in the discretion of the ' Court.</p>

<p>Supreme Court — Judgment—Effect. Upon error to a decree given in an action to quiet title this court found and declared that the plaintiff had an interest in the premises in question, and was entitled to the relief prayed. The District Court, upon remand, proceeded to retry the ease upon the same issue. Held error.</p>

<p> Error to Larimer County Court, Hon. Jay H. Bouton, Judge. </p>

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

<p>Water Rights — Adpidication of Priorities — Bill to vacate Decree— Venue. An action to vacate a final decree in a general proceeding for the adjudication of priorities, lies only in the same court in which the decree was rendered.</p>

<p>New Trial — Newly Discovered Evidence, which is merely cumulative, or the failure to produce which at the trial is not excused, will not suffice.</p>

<p> Error to Conejos County Court, Hon. Jose A. Garcia, Judge. </p>

<p>School District — Organization within Different Counties. Sec. 5911 of the Revised Statutes prescribes the rule for the organization of a school district from territory situated in different counties. An attempted organization of such a district under the other sections of the statute is without effect.</p>

<p> Writ of Certiorari. </p>

<p>1. Principal and Agent — Implied Authority of Agent. The settlement of a disputed account is not within the apparent authority of a mere collector; and still less of a mere salesman.</p> <p>2. Apparent Authority of Agent, is conferred only by the action of the principal.</p> <p>3. Presumption as to Agent’s Authority. The opinion in National Surety Company v. The People 54 Colo. 365, is not authority for the proposition that one dealing with a special agent, e. g., a salesman, may take it for granted that whatever the agent assumes to do is within his authority.</p> <p>The evidence examined and held to sustain the finding below.</p>

<p> Writ of Certiorari. </p>

<p>Appeal and Error — Confession of Error. Certiorari. Petitioners uniting in a motion of respondent to dismiss the writ is a confession that it is improperly issued.</p> <p>Writ dismissed. Opinion Per Curiam.</p>

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

<p>1. Defamation — Words—Actionable. A charge of insanity falsely asserted against one employed as a teacher of the public schools is actionable per se.</p> <p>2. Privileged Occasion. Such a charge made to those having no authority to remove the teacher, and owing no duty in that respect to the accuser, is not privileged.</p> <p>3. Damages — Mitigation of. Evidence of extravagancies in the conduct of the teacher are to be considered in mitigation of damages.</p>

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

<p>1. Gift Causa Mortis — Conditions, Prescribed. Finding of sustained.</p> <p>2. —-— Doctrine of not to be Extended. Sound policy, requires that the range of such gifts should not be extended.</p> <p>3. - Anticipated Demise — Cause—Evidence. Where the alleged donor evidenced the gift by a writing directed to the depositor thereof, and requiring the delivery of the several articles which were the subject of the proposed donation to persons named, “in the event of my death as a result of”— a surgical operation mentioned. Held that the writing was controlling evidence of the contemplated peril which dictated the donation.</p> <p>4. -Death from other Cause than that Anticipated. The peril contemplated by the alleged donor, and moving her to the donation, was by her expressly declared to be -a surgical operation to which she proposed to submit. But the operation never took place, and the subsequent death of the lady resulted from the malady to which the operation was to be directed, as the remedy. Held that the gift never became effective.</p> <p>5. --Reaffirmation after Surviving the Peril. The donor being advised by her counsel of the probable invalidity of the donation, and the importance of further action, if she desired that it should be effectual, declared that she “would think of it,” and took no further action. Previous expressions of the lady that she “should like those things to go as listed to my friends,” were rejected.</p>

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

<p>l. Office — Fees. A de facto officer who, acting in the office has collected the fees or salary thereof, is liable therefor to the officer de jure.</p> <p>2. Official Oath. Though the officer de jure fails to take the oath of office until this court has determined his title to the office, he is nevertheless in the meantime an officer de jure.</p>

<p>Contract — Construed. An irrigation company contracted'in writing with defendants and others that they shouid pei’petually be entitled to buy water “necessary for the irrigation” of certain described lands, upon certain terms. The volume to be delivered was not specified. Held that the court could not, in the absence of allegation and proof, assume that a particular volume of water was necessary for the irrigation of the lands, or any portion thereof.</p> <p>That the company, without the knowledge of the land owners, set apart a particular volume to be applied to the land, was held unimportant.</p>

<p>Intoxicating Liquors — Importations under Act of 1915. Section 7 of chapter 98 of the Acts of 1915, as amended by chapter 82 of the Acts of 1917 is to be construed as a whole. The limitation of the quantities that may be imported, contained in the amended statute, has no application to importations lawfully made before the statute took effect.</p>

<p>Trials — By the Court. The judge determines not only the creditability of the witnesses, and the weight of testimony, but the inferences properly deducible from the facts proven.</p> <p>Action to recover the bill of a physician for the attendance upon the wife of defendant. The evidence examined and held sufficient to sustain a finding for plaintiff.</p>

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

<p>1. Contracts — Construction. Different writings executed cotemporaneously and as part of the same transaction are to be construed as forming one contract.</p> <p>2. Evidence — Parol to Vary Writing. Contract declaring the consideration of a particular promissory note, not expressly mentioned therein, but in fact intended thereby, is not to be varied by parol evidence that the consideration was other and different from that recited in the writing.</p>

<p>1. Specific Performance — What Allowed. Plaintiff must show not only a valid contract but that the enforcement thereof will work no injustice to defendant.</p> <p>2. Executor — Power to Convey Lands. Where, by the will, the executor is empowered to convey the testator’s lands “subject to an order first had of the Probate Court,” an agreement of the executor to dispose of lands pertaining to the estate of the decedent, without first obtaining the license of the court, and without compliance with any of the provisions of the statute applicable will not be specifically enforced.</p> <p>3. New Trial — ■Newly Discovered Evidence, which is merely cumulative is not sufficient.</p> <p>So where the failure to produce it at the trial is not explained.</p>

<p>1. Evidence — Judicial Notice, taken of the custom to convey a volume of water in excess of the capacity ofi the ditch, or the adjudication.</p> <p>2. Water Right — Conveyance—Effect. The conveyance of a specified volume of water from a ditch named is no sufficient evidence of the right so assumed to be granted, there being nothing to show the volume of the first appropriation, or the amount of land irrigated.</p> <p>3. Parties — Consumers of Water from the Same Ditch, are all necessary parties to an action to determine the right of one, whose right all deny.</p>

<p> Error to Arapahoe District Court, Hon. J. C. Wiley, Judge. </p>

<p>1. Public Lands — Right of Occupant under the Statute. An occupant of public lands claiming- under the statute (Rev. Stat. v. 116) will not be allowed to recover in ejectment against a claimant under the Homestead Act of the United States. And the plaintiff in such case will not be permitted to twist his action into an action for trespass.</p> <p>2. Trespass to Lands — Superior Title, is always an answer to an action of trespass quare clausam fregit.</p> <p>The statute gives no right of restitution to one forcibly evicted by a better title. '</p>

<p> Error to Huerfano District Court, Hon. A. C. McChesney, Judge. </p>

<p> E'itot to Denver County Court, Hon. Geo. W. Dunn, Judge. </p>

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

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

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

<p>1. Mechanic’s Lien — Mines—Mining Supplies — Relation of Lien. Coal and lagging furnished to a mining company, at various times, but under a single agreement, found a lien dating from the delivery of the first item.</p> <p>2. -To Whom Lien Allowed — Engineer. A mining engineer is entitled to a lien for surveys, superintendence, or other professional services about the mine.</p> <p>3. -General Manager. The general manager of a mining company serving at a salary, under employment for a term of years, took an active part in the framing and issue of a series of bonds, secured by mortgage of the company’s properties. Held that' he was not entitled to a lien for his salary, as against the bondholders.</p> <p>4. Pleading — Waiver. Action to enforce a mechanic’s lien against the trustee in a mortgage of the property of a mining company, ^emurrer for absence of the bondholders. Demurrer overruled, and the trustee in the mortgage answered. The absence of the bondholders was waived.</p>

<p>1. Public Lands — Conflicting Entries — Jurisdiction to Adjust, is vested exclusively in the land department. The courts are without authority in the premises.</p> <p>2. Entryman — Abandonment of Bight. An application to enter particular lands under the Desert Land Act was denied by the Land Department. The applicant took no possession, made no improvement, and for twelve years did no other act towards compliance with the statute. Held he had abandoned his rights.</p> <p>3. Patent — Cancellation Of — Jurisdiction. Where the Secretary of the Interior determines the controversy between claimants for original entry of public lands, his determination, (there being no suggestion of fraud on the part of the successful entry-man, or failure on his part to comply with the statute controlling his entry), is final. The courts have no power to review the action of the’ secretary, and cancel the patent for alleged errors on his part.</p>

<p>1. Judgment — Reference in one court of ihe determination of the rights of parties therein to another court — Effect. In an action pending in Weld County District Court a decree foreclosing a mortgage issued to secure a series of the bonds of a coal mining company recited that the claim of one Kenyon to certain of the bonds was then pending in the district court of the City and County of Denver, but set apart a sum of money, the amount of the bonds claimed by Kenyon, and directed that it be deposited with the clerk of the Weld County Court to be held until the determination, in the Denver court, of the claim asserted by Kenyon, and that if he should be successful, “this court shall thereupon determine the proper application of said deposit.” Having prevailed in his action in the court in Denver Kenyon filed in the Weld County Court a petition setting up the judgment in his favor in the District Court of Denver and praying that the deposit in the hands of the Weld County Court should be turned over to him. Held that to sustain a demurrer to this petition was manifest error; that the foreclosure was as complete as to the bonds to which Kenyon was entitled as to the others; that rvenyon could not be required to litigate the question of his right further.</p> <p>2. --I-Iow Pleaded. Only the entry of the judgment, by a designated court, with the names of the parties, the date of the entry, and the amount, need be stated.</p> <p>Where the judgment is pleaded in haec verba there is no need to allege that it is what it plainly appears to be.</p>

<p>1. Negligence — Imputed. The negligence of one driving a motor truck is not imputed to his wife who is riding with him.</p> <p>2. -Negligence of Wife in Such Case — Effect of Verdict. The wife being plaintiff in an action for an injury resulting from a - collision between the street car and the truck, a verdict in her favor in effect declares that a woman of ordinary prudence would in the same case have conducted herself precisely as did the plaintiff, and The court are not to gainsay the jury, and set aside their verdict.</p> <p>Where the witnesses disagree the court are not at liberty to determine to which the jury gave credit.</p> <p>3. Instructions — Matters not in Dispute. It is bad practice to leave to the jury, matters not in dispute. It diverts their minds from what is really in question, and lessens the probamiity of a correct verdict.</p>

<p>1. Appeal and Error — Practice—Dismissal of Writ of Error. Writ of Error may be dismissed if it appears that an event has occurred which renders a determination of the cause unnecessary, or effectual relief impossible.</p> <p>2. Admissions in Brief. It is sufficient that this situation appears by admissions in the brief of plaintiff in error.</p>

<p>Appeal and Error — Moot Question — Writ Dismissed. The only-question presented by the record being the election of the relator to a public office, the term of which was already expired, even if relator was elected, the writ was dismissed.</p>

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

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

<p>1. Statutes — Construction. A word set down in the singular will be read in the plural if this is necessary to carry out the manifest purposes of the enactment.</p> <p>2. -Construed. A contract let by the County of Moffat for transcribing certain tax roles of Routt County for the years from 1907 to 1910, under authority of sec. 1 of the Act of 1913 (Laws 1913 c. 155), sustained.</p> <p>The County of Moffat was set off from Routt by the Act of 1911, (Laws 1911 c. 173). The statute makes provision for a transcription of the records of Routt, relating to lands situated in the new county and declares that the cost of this transcript shall be paid by the two counties, “in the proportion that the assessed valuation of Routt County bears to the assessed valuation of Moffat County”. By the Act of 1913 (Laws 1913 c. 155), it was provided that the County of Moffat should let the contract for making this transcript. A contract let by the authorities of Moffat County providing that Routt County should pay a specified proportion of the cost, was sustained.</p> <p>3. Constitutional Law — Division of County — New County. The General Assembly have power to divide counties and towns at their pleasure, and apportion the common property, and the common burden, in such manner as may seem to them equitable, so far as not prohibited by some express or implied provision of the fundamental law.</p>

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

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

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

<p>1. Pleading — Misnomer. Action against the Denver & Rio Grande . Railway Company. The evidence showed that the railway company had long been out of business, had no part in the transaction upon which the action was grounded, and was never served with process; that the Denver & Rio Grande Railroad Company was the employer of plaintiff, was the owner of the premises, defects in which were alleged, to have caused the injury complained of, and had been served with process in the action. Held that the railroad company was the defendant, and the defect a mere misnomer, subject to correction by amendment. Denver & Rio Grande Co. v. Love-land, 16 Col. Ap. 146, is to be regarded as overruled, so far as indistinguishable from the present case.</p>

<p>Pleadings — Amendment—Supplementary Pleadings. One who, suing in equity, fails to establish the right to relief in that forum, will not be allowed to present a new ease by supplemental pleadings, demanding relief at law, to which he has shown no right.</p>

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

<p>1. Constitutional Law — Construction of the Constitution. Effect is to be given to every word, if possible; and where the intent of a particular word is ascertained, the remander of the provision must be so construed as to accomplish such intent, if the context will reasonably bear such construction.</p> <p>2. -Construed. Section 13 of article XII of the Constitution was in force from its approval by the People. Legislation was unnecessary to give it effect.</p> <p>3. Words and Phrases — Establish, construed.</p> <p>4. Evidence — Judicial notice, taken of the history of the legislation concerning the civil service.</p>

<p>1. Workman’s Compensation Act — Where employee is performing service in the course of his employment. Deceased was a watchman at a mine located more than 10,000 feet above sea level. He was furnished a cabin, at the premises, for a residence, but was required to procure his own fuel. The stumps of resin-bearing trees, near the cabin, afforded the nearest and best source of a supply of fuel, and deceased was accustomed to procure his supply by blasting- the stumps with dynamite. While so engaged he was killed by a flying piece of wood. Held he was performing service in the course of his employment, within the meaning of the statute.</p> <p>2. -Negligence of Employee, contributing to the injury does not bar him from relief.</p>

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

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

<p>1. CONTEIBUTOEY Negligence — When for the Court? Only when it is beyond dispute that the proximate cause of the injury was the negligence of plaintiff.</p> <p>2. -Sudden Peril. Action for an injury occasioned by the reckless driving of an auto car. It appearing that but few moments elapsed between defendant’s turning of a corner, so as to intercept plaintiff, an instruction as to one menaced by a sudden peril was sustained.</p> <p>3. Teial — Questions for the Jury. Where negligence or contributory negligence depend upon the inferences to be drawn from the facts and circumstances in evidence, the issue must be left to the jury.</p> <p>4. InsteuctionS — Covered by Other Points of the Charge, as given, are properly refused.</p>

<p>Criminal Law — Fair Trial. The plaintiff in error being tried for a violation of the prohibitory liquor law, the people were permitted to give evidence in chief that she was the keeper of a house of prostitution. Held, that the effect being to discredit and humiliate the accused, tended to deprive her of a fair trial, and plainly constituted prejudicial error.</p>

<p>Mechanic’s Lien — Mines—Mining Supplies — Relation of Lien. Where it is fairly inferable from the evidence that supplies furnished for the operation of a mine, at different times during a series of months, were furnished under a single contract, a finding to that effect will not be disturbed. The transaction will be regarded as a single one, and the lien allowed therefor will relate to the date of the first item furnished. (Rev. Stat., secs. 4028, 4030.)</p>

<p> Error to Denver District Court, Hon. Julian H. Moore, Judge. </p>

<p> Error to Huferano District Court, Hon A. C. McChesney, Judge. Department One. </p>

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

<p> Error to Denver District Court, Hon. Clarence J. Morley, Judge. </p>

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

<p>1. Statutes — Adopted from Another State. We adopt with the statute tñe construction theretofore given to it by the courts of the state of its origin.</p> <p>2. Irrigation District — Taxes—Cumulative Levy. The tax levied for an irrigation district is in the nature of a local or special assessment. When all assessments required by law nave been levied, the district is not empowered to add to the yearly expense by a cumulative levy, to cover warrants issued for the expenses of preceding years. The holders of warrants issued in preceding years, and which remain unpaid, by reason of the defaults of the taxpayers, may take the land itself, at the tax sale, in lieu of the warrant.</p>

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

<p>1. Statutes — Construction. The courts cannot supply omissions in the statute, nor make law to fill an exceptional case.</p> <p>2. Construed. The provision of the Workmen’s Compensation .Act giving compensation only where the injury is not “intentionally inflicted by another” (Laws of 1915 c. 179, sec. 8) is to be taken according to its plain meaning.</p> <p>It is not to be construed as allowing compensation for the death of a police officer at the hands of an offender whom he is attempting to arrest.</p>

<p>Peddler — Who Is. A merchant who maintains a valuable stock of goods at one place for years, paying taxes thereon, and selling goods at that place, as other merchants do, is not a peddler merely because he sends out men with wagons and samples of goods, instructed to exhibit and take orders for the goods, but who are prohibited from selling from the wagons.</p> <p>Occasional sales by these employees in violation of the custom of the merchant, and his instructions to the employe, do not change their result.</p> <p>The merchant prosecuted as a peddler is entitled to show the permanency of his business, the value of his stock, and his payment of taxes thereon, as tending to negative the idea of itineracy, necessary and controlling in defining the occupation of a peddler.</p>

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

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

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

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

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

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

<p>1. Criminal Law — Speedy Trial. Under sec. 16 of art. II of the constitution an accused person is entitled to a trial, as soon as, regard being had to the terms of the court, reasonable opportunity is afforded to the prosecution, by reasonable diligence, to prepare for trial.</p> <p>An accused person against whom, for more than two and a half years no attempt to proceed to trial is made, he being at all times prepared therefor, no .excuses for the delay being shown, is entitled to his discharge from custody.</p> <p>Such discharge being denied him in the District Court, he may at once apply to this court for the writ of Habeas Corpus.</p> <p>The order of the District Court not being such a final disposition as could be revised in this court, on error, and the accused not being entitled to relief from another District Court, his sole remedy was to apply to this court.</p> <p>2. -Accused on Bail. The fact that the accused during almost the whole time of the delay was at large upon bail does not divest him of his right to the speedy trial guaranteed by the constitution.</p> <p>Petitioner discharged and the District Court instructed to quash the indictment.</p>

<p>Mandamus — Where the Writ Lies. The duty of corporate officers to issue stock certificates to those entitled thereto is a ministerial duty, enforcible by mandamus.</p> <p>Plaintiff holding shares in the Wyoming Oil Company, the defendant purchased from that corporation all its properties, agreeing that the stockholders in the Wyoming Company, on surrender of their certificate, should receive for each share thereof, one share in the defendant.</p> <p>Mandamus was allowed to compel compliance of the defendant with this agreement.</p> <p>That defendant was engaged in prospecting for and producing mineral oil, so that its stock is of variable and uncertain value was held a special reason for the allowance of the writ.</p>

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

<p> Error to Mesa, County Court, Hon. N. C. Miller, Judge. </p>

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

<p>Corporations — Foreign—Failure to Comply with Local Statute, must be pleaded, in the first instance. If defendant answers to the merits the omission is waived.</p>

<p>Venue — Change of — Waiver of Right. Defendant who answers to the merits waives his right to a change of the place of trial, even though he takes no further part in the litigation, below.</p>

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

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

<p>1. Appeal and Error — Agreement of Counsel — Effect. What is assumed by both parties, to the controversy as to matter of law, will be assumed by the court — without expression of an opinion upon the question.</p> <p>2. Mandamus' — Prior Demand — When Necessary. When the interest of the relators in the act or duty, performance of which is demanded, is peculiar to themselves, demand and refusal is a condition precedent to the allowance of mandamus.</p> <p>Otherwise where the duty enjoined is strictly public in its nature, and concerns one citizen no more than another. Where it is sought to compel the directors of an irrigating district to certify to the county commissioners the amount necessary to pay interest on outstanding bonds of such district, the writ must show prior demand and refusal.</p> <p>Prior action upon plaintiff’s coupons, and judgment thereon reversed, held no demand for the relief now sought.</p>

<p> Error to Weld District Court, Hon. George H. Bradfield, Judge. </p>

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

<p>1. Innkeeper — Liability for Baggage of Guest. A lady having paid her bill at defendant’s hotel, was, upon her request told by the clerk that her baggage should be sent to her residence. The baggage was then brought by a servant to the baggage room, and while the servant was looking for an expressman, was stolen. Held that the case was not within (Rev. Stat., sec. 3012), and that defendant was liable for the full value.</p> <p>Held further that. the loss was not from an unseen cause, with (Rev. Sttat., sec. 3013).</p> <p>2. -Circumstances, may afford an effectual contradiction of sworn testimony.</p> <p>3. Words and Phrases — “Unforseen Causes,” within (Rev. Stat., sec. 3013), cannot be anticipated as likely to occur.</p> <p>Theft of the baggage of a guest at an inn, or an ordinary burglary, is not within the statute.</p> <p>4. Appeal and Error — General Findings — Presumptions. Presumed that the court found all facts necessary to support the judgment.</p>

<p>1. County Commissioners — Premature Appeal From. The Board of County Commissioners are entitled to a reasonable time to investigate a claim presented against the county. An appeal taken, when but a few days had elapsed since the Board laid the claim aside for investigation, was held premature.</p> <p>2. Statutes — Construction. Statutes relating to the compensation of public officers are strictly construed.</p> <p>3. District Attorney — Fees and Allowances. The District Attorney is allowed only $5.00 for drawing an indictment or information, without reference to the number of counts therein. And but one fee of $15.00 for the trial of an accused person, where there is but one trial of one defendant, no matter how many counts are contained in the information.</p> <p>Under Chapter 172 of the Law of 1907 he is entitled to the reasonable and necessary expense of maintaining an office, including the fees of a stenographer.</p> <p>The expense of the office is to be apportioned among the different counties of the district, according to the earnings of the office, including what accrues from the action of the deputies.</p> <p>4. Evidence — Judicial Notice, taken that the aid of a stenographer is indispensable to the efficient discharge of duties like those of the District Attorney.</p>

<p>Statutes — Emergency Clause — Safety Clause. Acts of the General Assembly which are referable under amended sec. 1 of art. V of the Constitution (Laws 1910, c. 3) take effect at the expiration of ninety days from the adjournment of the session, and not before, even though bearing Emergency Clause (Constitution art. V, sec. 19).</p> <p>Acts not referrable, and not bearing the Emergency Clause, take effect at the expiration of ninety days from their passage.</p> <p>Acts bearing both the Safety and Emergency Clause take effect immediately upon their approval by the Governor.</p>

<p>Watek Eights — Adjudication of Priorities. In the statutory proceedings for the adjudication of priorities in a water district all appropriators are entitled to be heard and their rights respectively are fixed by what is shown as to the date of their respective appropriations.</p> <p>No one secures a preference by being the first to offer his proofs.</p>

<p>Public Office — Appointment as Deputy, not Allowed by Law, to an Officer Never Appointed — Effect. Defendant in error was, by the State Board of Immigration, appointed deputy commissioner of immigration, for the period of ninety days at a salary of $200.00 monthly, and a member of the board was appointed acting commissioner, and secretary. No statute authorized the appointment of a deputy commissioner, and defendant in error claiming that in legal effect he was appointed commissioner, applied for a mandamus to compel the state board to draw a voucher in his favor for a balance claimed as salary as commissioner, during the period of his service, as deputy commissioner.</p> <p>The court rejected this claim, and examining the evidence held that the appointment was what it purported to be, that of a temporary employee, and that Newell was never recognized by the hoard as commissioner, or as performing the duties of that office.</p>

<p> Motion for Writ of Prohibition Upon the Pleadings Granted. </p>

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

<p> Error to Clear Creek County Court, Hon. Royal R. Graham, Judge. </p>

<p>1. Contempt — Definition. Contempt which disrespects the court, or obstructs the administration of justice, is a criminal contempt. A witness refusing without sufficient cause or excuse to testify in a cause pending in a court of justice, is guilty Of a criminal contempt.*</p> <p>2. -Process. When a contempt is committed in the presence ol the court summary punishment may be inflicted without formal accusation or process.</p> <p>3. -Justification. Upon the trial of a woman for the murder of her husband, a son of the two, twelve years of age, testified in favor of his mother. The defendant who was then the judge of the Juvenile Court, being called for the people, to contradict the child, admitted having interviews with the boy, but refused to disclose the statements made by the child claiming that they were privileged. Answering a citation for his contempt, subsequently issued, he stated that the child, upon his promise that whatever the child said should be regarded as confidential, confessed that his mother, and not himself, committed the homicide; and defendant sought to justify his refusal to testify, under the general rule!, independent of statute, (Wig. Ev., sec. 2285), upon the ground that immediately upon his confession, the child became delinquent, and under the provisions of the statute, a ward of the Juvenile Court, and he, the defendant, immediately stood inloco parentis, without any proceedings whatsoever in that court, and he, the sole judge of whether the interest of the child or public justice, required the disclosure of the child’s communication.</p> <p>These Contentions, and the interpretation placed by defendant upon the statute were rejected, and the conviction for contempt affirmed.</p> <p>4. Delinquent Child — Proceedings Against. The proceedings against a delinquent child must comply with the statute (Laws 1909 c. 156). Until the proceeding prescribed by the statute is initiated, and the matter regularly presented for hearing, the Juvenile Court has no jurisdiction of the child.</p>

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

<p>1. Constitution — Construction. The constitution, including all amendments thereto must be construed as a single enactment.</p> <p>Amendments are to be construed as if originally part of the instrument.</p> <p>A special provision controls as to that to which it is directed, displacing the general provision, while the general controls in all cases to which the special does not apply.</p> <p>2. Civil Service — Members of Land Board. There is no such repugnance between the provisions of the constitution as to civil service (sec. IS, art. XII) and the provisions for the appointment of State Board of Land Commissioners, (sec. 9, art. IX) as to render them irreconcilable. A member of the Land Board holds only for the term for which he was appointed. He is not continued in office by the articles regulating civil service.</p>

<p>1. Husband and Wife — Wife’s Independence. The wife may acquire, hold and dispose of property, independently of the husband, and is not bound by his acts in relation thereto. She is not estopped to deny the title of one from, whom the husband has accepted a lease of her land.</p> <p>2. Evidence — Witness■—Competency. Defendant, a married woman, had bargained with one Kuhring’ to exchange certain real property in another state for certain lands in Colorado, claimed by the latter as a homestead entry. Deeds were executed accordingly and deposited in escrow in a bank, to be held until Kuhring should receive the Registers Duplicate Certificate of his entry. The agreement provided for a payment by defendant of $500.00 within thirty days.</p> <p>Before the Register’s Certificate was received Kuhring became a fugitive from justice, and defendants offered to show that at a date prior to the issue of the certificate she tendered the $500.00 to the bank of deposit. One Campbell, president of the bank, being party, this testimony was excluded. Held that Campbell having no interest in the controversy, the testimony was clearly admissible, even though he was deceased in the meantime.</p> <p>3. Time — Not of the Essence of a Contract for the Exchange of Lands, unless made so by the agreement.</p> <p>4. Forfeiture — Construction of. A forfeiture is strictly construed against those who assert it.</p>

<p>1. Life Insurance — Construction of Policy. The terms of a policy of life insurance are to be considered in the light of the common understanding, at the date thereof.</p> <p>2. Policy Construed. An exception from liability, for “death or disability resulting from riding or driving races, or voluntary exposure to danger,” found in a policy issued in 1908, held not limited to horse-racing but to extend to a death occasioned in driving an automobile race.</p> <p>3. Evidence — Judicial Notice taken, that racing with auto cars has been practiced for many years, and is as frequently attended by accidents as horse-racing.</p> <p>4. Words and Phrases — Driving, construed to apply to the operator of an auto car or one riding a bicycle.</p>

<p>Public Officer — Action for Salary — Presumptions—Evidence. In an action for salary by an officer who shows an actual appointment, by due authority, the question whether the officer was rightly appointed cannot be raised. The presumption is conclusive that all conditions authorizing the appointment existed, and that the appointment was in conformity with law.</p>

<p>1. Boundaries — Courses, Distance and Quantities, yield to monuments set in the original survey; but this rule affords no aid in determining the section included in such boundaries.</p> <p>2. Monuments — Inscriptions Upon. There is no apparent reason why markings on the corner stone of a survey should be of greater probative ¡value than the notes or plates of the survey.</p> <p>One corner of the land in controversy was marked by a monument on a township line, which was where the official plat showed it, and the topographical features of the land and the surrounding country agreed in all respects with the official plat. These circumstances held to justify the judgment below.</p>

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

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

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

<p>Public Office — Vacancy. The County Clerk elect, dying before qualification, a vacancy , in the office occurs on the expiration of the term of the then incumbent, to be filled by appointment of the County Commissioners.</p>

<p>1. Bill of Exceptions — Time of Tender — Extension. Under the Act of May 28th, 1911 (Laws of 1911 c. 6), an extension of the time for tender of a bill of exceptions can be granted only within the sixty days fixed by the statute for the allowance of the bill.</p> <p>Excuses offered by counsel for their delinquency, rejected.</p> <p>Rule 9 of this court has no relation to bills of exception.</p> <p>2. Practice — Order Made Without Notice to the Adversary Party of the application, is without effect.</p>

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

<p> Petition for Prohibition. </p>

<p>1. Negotiable Paper — When Maker Garnishable. A check accepted by the Bank upon which it is drawn, is not due until payment is demanded, and in the meantime the Bank is not liable as garnishee thereof.</p> <p>2. Transactions Between Holder and Acceptor, have not the effect to advance the maturity of the bill, as against a subsequent holder in due course.</p> <p>3. Certified Checks, are a substitute for money and any rule that throws a doubt upon their validity is to be rejected.</p>

<p>1. Contract — For Waters of an Irrigation Ditch — Constmed. Certain individuals being the owners of a ditch and the right to the water conveyed thereby, agreed with others (1) that a corporation should be organized for enlarging the ditch (2), that the corporation after leaving in the ditch a specified volume, to which it was agreed the original owners were entitled, should have and enjoy the “residue and remainder” of the waters carried through the ditch, as enlarged, and might take and use the same at its pleasure. The corporation having-enlarged and extended the ditch, so that an addition of some six thousand acres of land were irrigated, and the volume of water diverted and carried proportionately increased, held that where any of the original proprietors failed to use the full volume to which he was entitled, the water so not availed of were “the residue and remainder” granted to the corporation that the contract granted not only a right of way for the additional volume required by the enlargement of the ditch, but also all the waters not consumed by the original proprietors, within the limit of their right.</p> <p>2. Water Right — Bight of Appropriator. The appropriator may apply the volume of his appropriation to other lands than ■ those upon which it was first applied, or may sell it to others.</p> <p>3. Consumers Under Community Ditch — Bights of. May, by agreement regulate the use of the water among- themselves upon the lands under the ditch.</p> <p>4. Evidence — Judicial Notice Taken, that no consumer under a ditch uses the water constantly; that lands under irrigation require less water as time goes on and that more scientific methods of irrigation afford a greater saving of water, and a greater area of irrigation, than that upon which the right accrued.</p> <p>5. Appeal and Erkok — Judgment. Where the rights of all parties are made fully apparent by the record reversal upon error will not involve a new trial. The judgment will be reversed and a decree directed in accordance with the doctrine of the opinion.</p>

<p>DlVOECE — Change of Venue — Waiver. By appearing to an application of the wife for temporary alimony, in an action for divorce, the husband waives his right to a change of the venue.</p>

<p>1. Criminal Law — Fair Trial. Where the prosecutrix and the accused are the sole witnesses, directly contradicting each other, questions propounded by the presiding judge to the accused, during the trial, tending to create in the minds of the jury a belief that in the opinion of his honor the accused is guilty, are prejudicial error.</p> <p>2. Prosecution Required to Select Occasion. Where in a prosecution under (Rev. Stat., 1649, par 1), of a male person above the age of 18 years, for having carnal knowledge of an unmarried female under that age, it appears that the illicit intercourse was continuous, the people may on motion be compelled to select the occasion upon which they will demand a conviction, and this selection must be made before the accused is required to proceed to his defense. . The prosecutor is not required to select any specific date, but must individualize a certain act upon which he will rely.</p> <p>3. Evidence — Pregnancy ■ of the Female, will not necessarily establish the guilt of the accused but may be admissible, in corroboration of the evidence as to the particular act relied upon.</p> <p>Outcry and Complaint, are immaterial.</p>

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

<p>1. Evidence — Parol Admissible, to explain and contradict the reei- ' tations of a promissory note that the maker has pledged for the payment thereof, specified collaterals. It may be shown that in fact the collaterals were owned and pledged by another.</p> <p>2. Pledge — Duty of Pledgee. The holder of a note which recites the pledge of collaterals for its security, suing thereon and refusing to accept payment and return the collaterals to the maker, on the ground that another is entitled thereto, must go to the bottom of the matter and establish that the other party, and not the maker of the note, is entitled to the pledge.</p> <p>3. Conversion of Collaterals. The placing of collaterals by a bank in the name of its cashier is- not conversion. Refusal to deliver them to the one entitled, on tender of the amount due, is evidence of, and may amount to a conversion.</p> <p>4. Exceptions — Announced by the Court. The exception so announced is deemed the saving of an exception by the defeated party, to the ruling so announced.</p> <p>5. Promissory Note — Provision for Payment of an Attorney’s Fee. A promissory note authorized a confession of judgment thereon “for the amount due, costs of suit, and attorney’s fee”. Held that -in a hostile action upon the note no attorney’s fee is recoverable.</p>

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

<p>Appeal and Error — Practice. The presumption to the judge of the court below of a record on error, and its certificate by His Honor, upon the statement of opposing counsel that they have no objection, amounts to an Agreed Record.</p> <p>But the record must be certified by the clerk of the court as required by Rule 27.</p>

<p>1. Pleading — General Denial. Judgment for plaintiff on demurrer to the general denial must be reversed.</p> <p>2. —Defense Lacking the Averment of Some Fact, whether sufficient if such fact was avowed will not be determined. ■</p> <p>3. Allegations op Evidence — and Vain Repetition, censured.</p>

<p>1. Judgment — Divided Court. A decision of-the court of final resort, though divided, must be considered as a finality.</p> <p>The court declined to disturb the doctrine of the majority opinion in Schuler v. Henry, 42 Colo. 387.</p> <p>2. Contributory Negligence — Last Clear Chance. Where defendant declares that she had knowledge of plaintiff’s danger it is not required that the charge should allude to the duty of the defendant, in case by ordinary diligence she might have discovered it.</p> <p>3. Negligence — Evidence. Where plaintiff charges a particular act or. particular acts, of negligence, he is confined in his proofs to these alone.</p> <p>4. —Burden of Proof, as to the extent of his injuries it is upon the plaintiff.</p> <p>5. Trial — Weight and sufficiency of the evidence are within the exclusive province of the jury.</p>

<p>Error to Denver County Cow't, Ron. Ira, C. Rothgerber, Judge.</p>

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

<p>1. Motor Vehicles — License—Statute Construed. The provisions 'of ' the motor vehicle act (Laws 1913, p. 114) imposing a license fee “for motor vehicles up to 20 horse power . . . , Five Dollars for motor vehicles of twenty-one horse power, and less than forty horse power inclusive, and Ten Dollars for motor vehicles of forty-one horse power and over” imposes a license upon vehicles both of twenty horse power, and forty horse power.</p> <p>2. Words and Phrases. “Up To,” in the statute above quoted is inclusive.</p> <p>3. Statutes — Construction. The word “to” in a statute is one of exclusion or the contrary, depending upon the legislative ' intent, as drawn from the whole statute.</p> <p>4. Constitutional Law — Taxation. Sec. 3 of art 10 of the constitution refers solely to taxation, according to the accepted meaning of that term, by assessment, levy and collection. It has no reference to license or registration fees, e. g. the fee ' provided to be paid upon motor vehicles.</p> <p>5. Police Power — Revenue. The Motor Vehicle Act (Laws 1913 c. 114) is not a Revenue measure.</p> <p>A Revenue measure has for its object the levying of taxes in the strict sense of the word. If the principal purpose of the act is otherwise, the incidental production of revenue by the enforcement thereof will not make it a revenue measure.</p>

<p>Administrator’s Appeal — Bond—Statute Construed. Where the administrator, in a petition in the county court for the determination of heirship seeks only to sustain a claim personal to himself, in no way involving the diminution of the estate, he is not entitled to an appeal without bond, under Rev. Stat., sec. 7254.</p>

<p>1. Evidence — Judicial Notice. As human knowledge grows with experience the state of facts upon which judicial notice will be taken are constantly increasing.</p> <p>2. Judicial Notice, taken that Jamaica Ginger is an intoxicating liquor and a satisfactory substitute for whisky.</p> <p>3. Intoxicating Liquors — Statute Construed. The statute (Laws 1915 e. 98) includes in its denunciations intoxicating liquors of every character now in use, or which may hereafter come into use, as a beverage, by whatever name they may be known, and however small the percentage of alcohol contained.</p> <p>A compound in which alcohol is merely a vehicle for, or preservation of, other ingredients, or to extract their virtues and hold- them in solution, is within the statute.</p> <p>So articles which are never classed as intoxicating beverages, but the use of which are culinary, medical, or for the toilet.</p> <p>And compounds in which while the alcoholic stimulant is present, are not of established name and character as a beverage, nor found in the U. S. Dispensatory, or like standard authority.</p> <p>4. Sale by Agent. One who acts by a servant in the sale of intoxicating liquors is liable to the penalties of the statute. It being in evidence that defendant kept for sale, and himself sold, a prohibited beverage, held that there was no error in refusing an instruction that to charge the accused with a sale made by an agent, it must appear to have been made with his full knowledge and consent.</p> <p>5. Medical Use'. One who makes no attempt to comply with the provisions of the statute regulating the sale of intoxicating liquors as a medicine, will not be heard to assert that he sold Jamaica Ginger as a medicine.</p> <p>6. Evidence, of sales not charged in the information is admissible.</p> <p>Charge of “selling and keeping for sale” — evidence of keeping- for sale will support the conviction.</p> <p>7. Trial — Fair Trial. An address of the court to the jury urging an agreement, not approved, but held not error.</p> <p>8. New Trial — Affidavits of Jurors. As to “outside influences”, inducing the verdict, are disregarded.</p> <p>Remarks made by the bailiff in charge of the jury disregarded, both because not shown to have been heard by a single juror, and especially because the baliff’s statements were confirmed by the evidence.</p> <p>9. Misconduct op Bailiff — Statute Construed. The ordinary physical necessities of jurors must be provided for, the statute (Rev. Stat., sec. 1989) must receive a reasonable construction. It prohibits only communications of an improper or unnecessary character.</p> <p>10. Taxable Costs. Neither the fees of the jury, the bailiff, nor the stenographer are to be taxed to the accused, — nor the cost of the meals furnished the jury.</p> <p>11. Error — Judgment, affirmed as to a fine imposed, and reversed as to certain costs taxed against the accused.</p>

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

<p>1. Husband and Wife — Separation Agreement. A separation which has actually occured, no prospect of reconciliation appearing, is of the same effect as the basis of a separation agreement as if upon mutual agreement in the beginning.</p> <p>A contract entered into in such case, no unfair advantage being taken of the wife, is a bar to her subsequent action assailing a disposition of the husband’s estate, by him, in view of his approaching demise.</p> <p>Agreement of separation by which the wife accepts the provision made for her from the husband’s estate. Action by the wife to vacate the husband’s subsequent disposition of his property. Evidence of the wife’s physical and mental incompetency, unsatisfactory in itself, is overcome by the fact that in all stages of the negotiation which resulted in the agreement, she was represented by counsel.</p> <p>2. Right of Wife in the Estate of Her Husband. Subject to the prohibitions prescribed in Smith & Smith v. Smith, 22 Colo. 480, the husband is entitled to dispose of his property, at his pleasure, and his threats made to the wife to do so, are not coercion.</p> <p>3. Contract — Ratification—Laches. Acts of dominion over property received under a contract, after knowledge of existing grounds of rescission amount to ratification.</p> <p>4. Equity — Laches, need not be pleaded.</p> <p>5. Fraud — Pleading. Where years after the execution of a contract rescission is demanded upon the ground of fraud, the plaintiff must expressly allege that he believed the false representations upon which he relied, and the time of discovering the falsities.</p>

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

<p>1. Fraud — Evidence Of, examined and held entirely lacking in the clearness and certainty required by the rules.</p> <p>2. Release — Construed. A release of “all claims, which I have, or can, or may have by reason of” a certain accident specified, held to have no reference to any particular injury.</p> <p>3. Ratification — Elements Of. Ratification must be predicated upon an actual existing purpose to approve the act; mere delay does not take away the right to rescind a contract obtained by misrepresentation, nor, so long as, no election being made, the party is entitled to determine it either way.</p> <p>But delay may be so great as, under all the circumstances, to be a decision. An election is sometimes more conclusively evidenced by conduct than by words.</p> <p>Plaintiff was injured on the 25th of August, 1912, by an accident which she attributed to the misconduct of defendant. In November following she executed a release to defendant, and accepted his check for $900.00. Late in November she left the hospital where she had been under treatment, and in the following March deposited the check, against which she checked until the amount was exhausted. Held a clear case of ratification under release.</p>

<p>Irrigation District — Taxes—Payment Refused — Dtity of Treasurer. The County Treasurer is not at liberty to refuse to accept the state, county and school tax, assessed against lands in an irrigation district, merely because the land owner refuses or neglects to pay the tax levied for the expenses of the district.</p>

<p>1. Pleading — Waiver by Pleading Over. A defendant who answers, after his motion to strike out matter contained in the complaint is denied, waives his motion.</p> <p>So answer after a demurrer for misjoinder of defendants, or for ambiguity or uncertainty.</p> <p>2. Construction. A pleading is to be construed as a whole. Uncertainty or defects in a particular allegation may be supplied by what is alleged elsewhere.</p> <p>3. Construed. An allegation found in the answer “That the court has no jurisdiction of the subject matter of this action,” is a demurrer, and should be heard and treated as such.</p> <p>4. Corporation — Stockholder—Liability for Assessment. A holder of stock, with notice, is, though never a subscriber, liable for an unpaid assessment thereon.</p> <p>An attorney who renders service to the corporation to the full value of stock which he received, is not liable for an assessment thereon, even though the shares came to him from one who obtained them without paying anything therefor.</p> <p>5. Assessment upon Stockholders — Effect. Where the court in which the affairs of a bankrupt company are being adjudicated assumes to make a levy upon the stock, its order is conclusive of the necessity for the assessment, and the authority of the trustee to sue for it, not upon the principle that the order is a judgment, and therefore res adjudicata, but upon the principle that such necessity and authority are things which a stockholder may not gainsay; otherwise as to whether the stock is full-paid. Upon this the stockholder has a right to be heard.</p> <p>6. Limitation — -When the Course of the Statute Begins. When the Assessment is Made; not when a call is made upon subscribers for their unpaid balances.</p> <p>7. What Statute Applies. An action against a stockholder for an assessment upon his stock, is not subject to the three years or the four years statute; but is to the six-year limitation.</p> <p>8. Manner of Pleading the Statute, prescribed.</p> <p>9. Appeal and Eeeoe — Presumptions. A defendant is not bound to offer evidence of a defense which has been adjudicated against him.; and if he does so, it is not to be supposed that he .might not have produced other evidence.</p> <p>10. Harmless Error. Striking out an allegation which raises no material issue is harmless.</p> <p>11. Inteeest — When Allowed. Not in an action against a stockholder upon an assessment on his stock, as unpaid.</p>

<p>1. Taxes — Liew Of. The tax assessed for an irrigation district is a lien upon the land upon which it is levied.</p> <p>2. Contract — Rescission. One who has contracted to purchase lands clear of encumbrance may rescind the contract, if in fact the lands are encumbered by a tax, which, though not yet payable, the vendor refuses to pay.</p> <p>3. Vendor and Purchaser — Purchaser’s Right to a Conveyance Corresponding with His Agreement. One who has contracted to purchase lands “subject” to an encumbrance, is not required to accept a deed containing a provision to the effect that he assumes such encumbrance.</p> <p>4. Deed — Delivery, without authority of the grantor, and against his instructions, conveys nothing.</p> <p>5. Estoppel — By Contract — Essentials. The party asserting an estoppel by conduct must have been misled to his injury; and the burden is upon him to prove this.</p> <p>6. Pleading. An estoppel must be pleaded.</p>

<p>Taxes — Land Not Subject to Taxation Sold for Tax — Statute Construed. The county is required to pay the purchaser his disbursement, with interest, even though the assessment was made by the Tax Commission (Rev. Stat., sec. 5747).</p> <p>The word “assessor” in the statute means “the assessing power.”</p>

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

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

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

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

<p> Error to Denver District Court, Hon. Francis L. Bouck, Judge. </p>

<p>1. New Trial — When to be Heard. Under Secs. 237 and 239 of the Revised Code 1908 (Mills’ Code, 905, secs. 220, 224). A motion for a new trial must be heard and determined at the term at which the verdict is rendered, or at the next suceeding term.</p> <p>A failure to present the motion either at the term at which the verdict is given or at the next term operates as a denial.</p> <p>2. Duty to Call up the Motion, is upon the party interposing it.</p> <p>3. Writ of Error — Limitation. Judgment was entered in the District Court February 26, 1913. The terms of court were prescribed to be held on the second Monday in February and the third Monday of September in each year. A motion for a new trial was filed -in due time, but was not argued until December 20, of 1916, and was overruled January 6, 1917. Held that the judgment became final on the last day of the September term of 1913, and that neither under any statute nor under the rules of the Supreme Court could error thereto be maintained.</p>

<p>Divorce — Alimony—Writ of Error. One who desires a review of any feature of a decree of divorce must file the notice required by Sec. 12 of c. LXV of the Laws of 1917. The statute applies where a review merely of the grant of alimony is desired. In the absence of such notice, this Court has no jurisdiction.</p>

<p>1. Pleadings — Construed. Allegations of negligence in the condition of an anto car of defendant, in which plaintiff was being conveyed as a passenger, held sufficient.</p> <p>So of an allegation charging incompetency in the driver.</p> <p>2. Motion to Make More Definite and Certain, is addressed to the discretion of the court. The decision will be reviewed only for an abuse of discretion.</p> <p>3. Instructions — Construed. Action by passenger against carrier for personal injuries attributed to negligence. An instruction given at the instance of plaintiff advised the jury that the uncontradicted evidence showed that while ascending a hill the automobile suddenly went backwards some distance, down the hill, and turned upon its side, thereby injuring plaintiff; that these circumstances “raise a presumption that the accident occurred through negligence on the part of defendant.” Approved, and held not to shift the burden of proof to defendant, but merely requiring him to rebut a prima facie ease presented by the evidence on the part of plaintiff.</p> <p>4. Personal Injury — Damages—Pleading. The expense of being cured of a personal injury may be recovered under the general allegation of damages.</p> <p>So the natural and probable consequences of the injury, tho not set up in detail.</p> <p>And future pain and suffering, and the necessary medical attendance.</p> <p>5. Special Damages — Action by passenger against carrier for personal injuries attributed to negligence. The physician who attended plaintiff was permitted to testify to the value of his services, to the necessity of a surgical operation, the reasonable value thereof, the pain attending the operation, the incidental expenses, and the duration of plaintiff’s disability therefrom. All these matters were held admissible, not being in the nature of special damages within the rule in Pueblo v. Griffin, 10 Colo. 366.</p> <p>6. Evidence — Burden of Proof, remains with the plaintiff throughout the trial. -</p>

<p>Trusts — Rights of Beneficiary. Action to foreclose a deed of trust on land. Plaintiff in error, being the owner of certain of the bonds secured by the deed, was made party, and filed an answer and cross complaint, alleging that certain of the lands had been wrongfully leased by the trustee, and praying that the owners of such lands be made parties defendant. Held that he was entitled to be heard upon these allegations and that to strike off his cross complaint and dimiss him was error.</p>

<p>1. Industrial Commission — Proceedings before — Nature of. Such proceedings are not a civil action nor of the nature thereof.</p> <p>2. Private settlement of claim approved by. No settlement of a claim, once allowed by the Commission, unless it receives their approval.</p> <p>8. Power of Distriet Court, extends to vacating- the orders of the Commission only when made without jurisdiction, procured by fraud, or when unsupported by the findings of fact.</p>

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

<p> Error to Weld District Court, Hon. George H. Bradfield, Judge. </p>

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

<p>1. Practice in Error — Motion to dismiss. Evades a test of the merits, and ought not to be favored.</p> <p>2. Partnership — When may a/ppear in the action of another. A partnership, and not its members, being made defendant below, may, without the individual members prosecute error.</p> <p>3. How Made Party. By inserting the names of the partners in the title, with an averment of the partnership. To name the partnership as defendant, by its title, with an averment that it is composed- of persons named, does not make the persons so named parties.</p>

<p> Error to Denver District Court, Hon. Julian H. Moore, Judge. </p>

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

<p>Mining Property — Tunnels. A tunnel Location under Sec. 2323 of the Revised Statutes of the United States is mining property within the meaning of sec. 175 of the Code of Civil Procedure.</p>

<p>1. Contract — Verbal Construed. Plaintiff having demanded a horse which was in possession of defendant, defendant produced and offered an animal, the identity of which plaintiff denied. Thereupon defendant directed plaintiff to take the horse and keep him, “until we find yours.” To which plaintiff replied: “I will see if he is as good as my horse.” / Held a mere temporary arrangement, passing no title, and that defendant was entitled to recover the animal in replevin.</p> <p>2. Larceny. Plaintiff having removed and secreted the horse under the circumstances mentioned above, it was held on suit for malicious prosecution of plaintiff for larcency as bailee, that defendant had probable cause for the prosecution.</p>