Volume 67 — Colorado Reports

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

<p>1. Railway Company — Duty to Fence Line. Statute Construed. Secs. 10, 11, of c. 135 of Acts of 1911, are not effective until the steps prescribed in the previous section of the Act, for adjusting the loss, have been taken. Action to recover the value of live stock killed by the trains of a railway company. The complaint alleged that the company had done none of the things required by the statute. Judgment sustaining the demurrer thereto, Reversed.</p> <p>2. Trial — Nonsuit. Where the plaintiff produces evidence sufficient to sustain a verdict in his favor, a- nonsuit is error.</p>

<p>1. TOWNS — Authority of Clerk. The clerk of a town has no authority to subscribe the name of the mayor to an ordinance. An ordinance so subscribed is not subscribed at all.</p> <p>2. Ordinance — Signature by Mayor. The duty of the Mayor with respect to validating or attesting the ordinances of the town is directory, and ministerial. Under sec. 6672 Rev. Stat. an ordinance adopted by a majority of all the members elected to the council, and presented to the Mayor for his approval, but not returned by him at the next meeting of the council, is, if regularly recorded and published, a valid ordinance, without the Mayor’s signature.</p>

<p>1. Bank Check — Presentation of, involves a guarantee of its genuiness. The drawee bank need concern itself only with the genuineness of the signature and the state of the drawee’s account.</p> <p>2. Altered Check — Payment—Effect. Payment by the drawee is a conclusive admission of the drawer’s signature. But the rule has no application where there is an alteration of the body of the paper.</p> <p>3. Restrictive Endorsement — Defined, is one which prohibits further negotiations of the paper, constitutes the endorsee merely the agent of the owner, or vests the title in him in trust for some other person. An endorsement directing payment “to any bank — previous endorsements guaranteed” is not of this character.</p> <p>4. Contradiction or Variation of Endorsement. The statute defining and controlling the effect of an unrestricted endorsement, such endorsement cannot be varied by parol evidence, nor by any evidence of any custom in business.</p>

<p>Trial — Uncuul radial cd Testimony, without conflict, either circumstantial or direct, as to material facts, must be allowed to control. Neither the court nor the jury are to disregard such evidence, and return findings not supported thereby. Judgment upon such unsupported findings reversed.</p>

<p> Error to the Washington County District Court, Hon. H. P. Burke, Judge. </p>

<p>1. Criminal Law — Rape—Outery. In accusations for rape by violence, whether outery or complaint was made by the woman • has always been regarded as relevant.</p> <p>In the cases prescribed by the statute, with consent, of which in law the female is incapable, such evidence is irrelevant.</p> <p>Where the crime is by violence, and there is no such evidence or claim of consent, the rule for rejecting such testimony is inapplicable. The testimony must be admitted, its effect being for the jury.</p> <p>. 2. Evidence — Impeachment by Contradictory Statements of Witness, is not to be permitted unless the foundation is laid by interrogation of the witness a^ to the statements imputed to him.</p>

<p>1. Venue — Subject of Action. In an action instituted in Huerfano County District Court a decree was entered adjudicating the water rights in water district No. 16. At a later date a similar decree was entered in Pueblo District Court. There were no parties common to the two actions. Later, in an action instituted ¡in Huerfano District Court, the defendants obtained an adjudication of their rights, differing from the terms of the Pueblo decree. An action was afterwards instituted in Huerfano District Court to restrain the State Engineer and other officials of the water service from interfering with the flow of the water of the Huerfano and other rivers of the district to the lands of the plaintiffs, and that the Pueblo decree be declared void. The plaintiffs claiming under the decree first entered in Huerfano County, and the defendants under that entered in Pueblo County, held that the subject matter of the action was in both counties, and therefore the defendant’s petition for change of the place of trial was properly denied.</p> <p>2. Void Decree — Effect. A decree void on its face may be so declared, by any other court. It is not proper to determine a ■ question involved in the main suit . on a mere motion for a change of venue.*</p> <p>3. Estoppel — By Conduct. Those who institute an action, obtain a decree, and avail themselves of it, will not be heard to after-wards deny the jurisdiction of the court.</p> <p>4. Pleading. Where the facts constituting an estoppel are pleaded this is sufficient, though the purpose of the pleader is not set forth; but this' method of pleading not recommended by the court.</p> <p>5. Who May be Estopped. Where those consuming water, or claiming so to do, are estopped from asserting this claim the water officials controlling the distribution of the water are likewise estopped.</p> <p>6. Pleading — Demurrer, to part of an answer purporting to state a separate defense is proper.</p> <p>7. Water Right — Second Adjudication of Priorities — Effect. Where the appropriators have obtained an adjudication of priorities and subsequently join in suit and obtain a later adjudication upon the same claims of priority, from the same source the latter adjudication will control the first.</p>

<p>1. Appeal and Error — The Testimony Heard Below, is considered in the light most favorable to the defendant in error; and the court of review will indulge in every inference fairly dedueible from the evidence in support of the judgment.</p> <p>2. Easement — By User. The use of water from a particular reservoir during a period of thirty years confers an easement by - prescription, as against those who, during all such periods, knew and acquiesced in the user.</p> <p>In the matter of acquiring title by prescription, to the use of water, no distinction is made between ditches and reservoirs.</p> <p>3. Evidence — Presumptions. The long and uninterrupted usage of water from a particular source raises the presumption that the use was adverse, and under claim of right.</p> <p>4. -Pleadings — Construction. An averment that the defendant owns a specified number of shares in a corporation, if admitted, is to be taken as if the amount named was the exact and only amount.</p> <p>Everything by which fair and reasonable intendment may be inferred upon the complaint will be presumed by the court of review.</p> <p>Action for an injunction to compel .defendant to allow plaintiff to store water in a certain reservoir, and withdraw it for irrigation. The complaint made it apparent that the water could not be withdrawn otherwise than across the land of defendant. A decree accordingly was affirmed.</p>

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

<p>Sale — Change of Possession. Where upon sale of chattels made in good faith an actual and visible change of possession occurs, and is maintained, the subsequent loan of the article to the vendor does not make it liable to levy for his debts.</p>

<p>1. Chattel Mortgage — Statute Construed. A chattel mortgage is a creature of statute, and the statute being in derogation of the common law, and the Statute of Frauds, must be strictly construed, and substantially observed.</p> <p>2. By Corporation — Execution—Acknowledgment. A chattel mortgage executed by the Farmers Mill & Elevator Company was followed by signature in these words, The Farns Mill & E. Co. By I. W. Hottel, Sec. and Gen., and the acknowledgment was in the following words:</p> <p>“This mortgage was acknowledged before me by I. W. Hottel this Oct. 16, 1915.</p> <p>W. O. Redding,</p> <p>Notary Public.”</p> <p>Held that neither the subscription nor the acknowledgment was in substantial compliance with the statute (Laws of 1915 c.50), and the chattels having remained in possession of the mortgagor, the mortgage was without effect as to creditors.</p> <p>3. Notice — Record. The record of a chattel mortgage not executed or acknowledged in substantial compliance with the statute is not notice to creditors or third persons.</p>

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

<p> Error to Sedgioick District Court, Hon. L. C. Stephenson, Judge. </p>

<p> Error to La/rimer County Court, Hon. Ja/y H. Bouton, Judge. </p>

<p>1. Statute of Frauds — Debt of Another. A promise by one, for himself, to pay for services rendered to another, is an original promise, and binding without writing.</p> <p>2. Consideration. Services rendered for the benefit of one person, at the request of another, are a sufficient consideration to support the promise of the latter to pay for such services.</p>

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

<p>1. Constitutional Law — Statutes. Legislation should not be nullified as opposed to the Constitution, unless plainly in violation thereof; nevertheless the requirements of that instrument must be recognized and observed.</p> <p>2. Title of Statute'. Under a title “An act for the protection of” “girls 18 years of age,” the statute provided for the protection of “girls under the age of 18” (Laws 1911 c. 116). The statute held void as opposed to section 21 art. V of the Constitution.</p> <p>3. Statute extending Former Statute. The statute provided that “any law of this state defining delinquency shall be held to include all girls under 18 years of age” (Laws 1911 c.116). Held an attempt to extend the provisions of former enactments by mere reference, and void under sec. 24 of art. V of the constitution.</p>

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

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

<p>Criminal Law — Accomplice as Witness — Waiver of Privilege. Where a witness for the prosecution, accused of the same crime, being fully informed by the court of his rights, waives his privilege, and testifies freely as to one element of his guilt he waives his privilege likewise as to every other element. He is not to give all possible damaging evidence against the accused, and then assert his privilege. The credibility of his evidence is a proper subject of inquiry.</p>

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

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

<p> Error to Kit' Carson District Court, Hon. J. E. Little, Judge. </p>

<p>1. Pleading — Construction. The character of a pleading is to be determined not from the title given to it by the party, but from its allegations.</p> <p>2. Judgment — Petition to Revive. A plea of “no valid judgment” is equivalent to the common law plea of nul tiel record, and is a proper plea in a proceeding to revive a judgment.</p> <p>Such plea is determined by the court, upon mere inspection .of the record.</p> <p>3. Upon False or Insufficient Reason, is sustained, if in itself correct.</p> <p>4. Construed. Petitioner to revive a judgment rendered by a justice of the peace, a transcript of which had been filed in the District Court. Plea of nul tiel record sustained, and judgment that plaintiff take nothing &c. Held a final judgment. An execution subsequently issued was quashed, and this judgment was affirmed.</p> <p>5. Justice op the Peace — Judgment—Essentials—Presumptions. Under Rev. Stat. sec. 3734 every judgment of a justice of the peace must be attested by his signature. A transcript in the District Court of the docket of the justice, not bearing his signature to the judgment, is a nullity, though he certifies 'to the correctness of the transcript.</p> <p>No presumptions indulged in favor of the judgment of a justice of the peace.</p>

<p>1. Mining Claim — Amended Location Certificate. Where the original certificate fails to refer to any natural object or monument, an amended certificate, filed pursuant to the statute, is admissible in evidence against one claiming under a subsequent location. Nylund v. Ward ante, followed.</p> <p>2. Notice at Discovery Shaft — Error In. The location certificate fixes the boundaries of the claim, andj subsequent locators are affected thereby in spite of errors in the notice posted at the discovery shaft.</p> <p>The latter notice is not designed as a permanent affair.</p> <p>3. Estoppel — By Conduct. Statements made by the locator of a mine, to a subsequent adverse locator, as to the extent to which he and his associates will claim, all the facts being( known to the junior locator, who has already acted, is no estoppel.</p>

<p>1. Mining Claims — Location Certificate. The courts have generally held that in the location certificate of a mining claim, the claim must be tied to some natural object.</p> <p>2. Amended Location Certificate — Effect. The location certificate of a mining claim failed to tie to any natural object. In an action brought by the locator against one claiming under a subsequent location, an amended certificate, filed during the trial, was held to affect the adverse claimant, and was admissible in evidence against him. McEvoy vs. Hyman, 25 Fed. 596, and Frisholm v. Fitzgerald 25 Colo. 290 followed.</p> <p>3. Woeds and Phrases — Void. A void thing is a nullity and cannot be amended.</p> <p>4. Statutes — Construed. Sec. 4210 of the Revised Statutes providing that a defective certificate of a mining location may be amended, qualifies the declaration in sec. 4165 that the certificate is void.</p>

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

<p>1. Mortgagor — Assumption Of — Effect. Purchaser assuming a mortgage of lands thereon is liable to an action by the mortgagee.</p> <p>The original debtor, in such case, becomes a mere surety, and is released by an extension of the time of payment’ of the mortgage debt, without his consent.</p> <p>2. Principal and Agent — When the Relation Exists. The evidence examined, and held to establish the proposition that one assuming authority from a creditor to grant an extension of the time of payment was authorized thereunto.</p> <p>3. Evidence — Presumptions. An agency once established is. presumed to continue, in the absence of the evidence of its termination.</p>

<p>1. Municipal Corporations —Delegation of Power. A city cannot delegate the authority to establish the grade of a sidewalk.</p> <p>It may delegate mere ministerial power, e. g. surveying', investigation, computation, and may take the advice of professional people, but the final determination must be made by (he council.</p> <p>2. Instructions — Construed. An instruction that if the council “authorized the committee to. fix the grade and they authorized the engineer to determine the grade, and he did so, to.the satisfaction of the committee, the grade is, in law, established by the council.” Held to present the question as to the power of the city council to delegate its authority.</p> <p>3. Motion For New Trial — Rule S. The purpose of Rule 8 is to afford the court below opportunity to correct its own errors.</p> <p>A motion which clearly indicates the objections sought to be raised thereby is sufficient.</p>

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

<p>1. Criminal Law — What May be Assigned for Error. An order to which no exception was taken may not.</p> <p>2. Error — Verdict Upon Undisputed Evidence, except as to knowledge and intent, and strong circumstantial evidence as to these, will not be disturbed.</p> <p>3. Evidence. The name under which defendant did business was “Bruno & Co.” Being tried on charge of the unlawful importation of intoxicating liquors, he offered in evidence a notice received from a railroad company, some days subsequent to his arrest, addressed, ‘Bruno Bros. Co.,’ at his place of business, as tending to show that the liquors were intended for another firm. There being no contention that the liquors found at his residence were consigned to any other firm than his, the paper was held properly rejected.</p> <p>4. Other Similar Acts, are admissible upon the question of knowledge, intent, or the like.</p> <p>5. Harmless Error. Receiving parol evidence of the contents of a writing, no more than what the accused admits on the stand is harmless.</p> <p>6. Credibility of the Accused as a Witness, the court may instruct as to, though the accused alone is selected for the occasion.</p>

<p>1. Bill of Exceptions — Attestation by Affidavit. Where the bill of exceptions is disputed by the successful party, and, owing- to the sickness of the trial judge and his subsequent death, remains unsettled, it may be attested by affidavits. The ease was held “to be neglect &c. or refusal” within the spirit of the statute. Laws 1911 c. 6 sec. 2.</p> <p>2. Delay of Plaintiffs In Error, in presenting the bill, for less than three months,, is not sufficient to deprive him of the right to verify it by affidavit.</p> <p>3. Writ' of Hrhor- — Limitation. The limitation prescribed by Rule 1G. is suspended during the pendency of a motion for a new trial.</p>

<p>1. Criminal Law — Jurisdiction, is given by the law, and cannot be conferred by consent. One arraigned upon an information charging what, under the law, is no offense, is not precluded of this defense by failure to assert it by motion to quash.</p> <p>2. Intoxicating Liquors — Statute Construed. Under c. 82 of the Laws of 1917 the keeping of intoxicating liquors in one’s home is not unlawful.</p>

<p>1. Mandamus — Pleadings. The writ must show every fact necessary to the right. A writ nowhere alleging the truth of the matter relied upon held fatally defective.</p> <p>2. Judgment Upon the Pleadings, is not permitted.</p> <p>3. Corporations — Stockholders’ Right to Examine Books, is not to be denied upon suggestion that the stockholders’ purpose is to obtain information which he may use to the injury of the corporation.</p>

<p>1. Public Utilities Commission — Subordination to the Supreme Court. The Utilities Commission is under duty to obey the orders of the Supreme Court. No excuses for disobedience will be received.</p> <p>Where an order of the Commission is set aside, such order is from that time a nullity. ■</p> <p>2. Statute Construed. The provisions of the statute for suspension of an order of the commission (Laws 1913' c. 127, sec. 53) is permissive only, and in no sense a requirement. The suspension if granted is equivalent to the allowance of a supersedeas in other cases. An aggrieved party is not deprived of the right of review by failure to apply for the suspension.</p> <p>3. Submission to Order of Commission — Effect. An order of the commission prescribed a division of through rates between certain connecting- railway companies. The acceptance of the rate so prescribed, by one of the companies complaining thereof, pending- a writ of error to review the same, is not to be held voluntary.</p> <p>The complaining eonrpany succeeding in its writ of error is entitled to restitution of whatever it has been unlawfully deprived by complying with the.rates.</p>

<p>1. Life Insurance — Bankruptcy of Insured — Bight of Trustee. All ’powers which the insured might have exercised for his own benefit are vested in the trustee.</p> <p>2. Cash Surrender Value. A provision of the policy that it shall have a cash surrender value after a certain period is not defeated by the bankruptcy of the insured, prior to a default in a premium, even tho the policy provides that the surrender value shall not accrue, until such default.</p> <p>The only effect of the provision in question is that the cash surrender value is not payable until after the default.</p> <p>This conclusion based upon the Bankruptcy Act and the construction placed upon it by the courts, and is not to be accepted as controlling when the statute is not involved.</p>

<p>1. Equity — Forfeiture. Equity will not enforce a forfeiture.</p> <p>2'. Trustee — Advancements—Presumptions. One holding in his own right an interest in a contract for the purchase of land, and as trustee, other interests, making payments on account of the purchase, is presumed to make such payments to preserve the trust estate.</p> <p>3. Advancements — Remedies of Trustee. Shaw held a contract for the purchase of lands. He made one payment, and the contract' provided for ten annual payments thereafter, the last accruing in October, 1915. He assigned this contract to plaintiff, who issued a declaration of trust, reciting the contract of purchase, and that each of defendants was entitled to an undivided tenth thereof, subject to the pro-rata payment of the unpaid purchase money, but that if either of them should default in any payment, and such default should continue for thirty days after written notice, the defaulting party should forfeit his interest. Plaintiff having made full payment of the purchase money required under the original contract, brought her bill against defendants to quiet title, alleging that each of them had' made default in the payments required of them, and continued such default for thirty days after written notice. Held that the payments made by plaintiff were to be considered as advancements; that her remedy was by foreclosure of defendants, unless they should return the advancements with interest, within some reasonable time to be fixed by the court; or by a suit in partition. The court declined to award plaintiff the relief demanded and the decree in her favor was reversed.</p> <p>4. Notice — Error. The defendants holding equitable interests in a contract for the purchase of lands, was required to pay, annually, their ratable shares of the purchase money as it became due on the contract, and it was provided that in case of default, continued after notice in writing, the one so defaulting should forfeit all interest. The evidence as to notice of default examined, and held insufficient to sustain the claim of forfeiture asserted by plaintiff.</p> <p>5. Appeal and Error — Documentary Evidence — Effect in Court of Review. The findings of the trial court upon evidence, the essential part of which is documentary, do not bind the court of review.</p> <p>6. Contract — Construed. Plaintiff held the contract of a railway company to convey to her certain lands, upon the completion of ten annual payments of amounts differing in different years. She was under duty to make these payments, and defendants, ■ each being entitled to an interest in the purchase, were under duty to re-emburse to her their respective ratable proportion of her payments. Plaintiff brought her action to quiet the title and declare the interests of defendants "forfeited, 'for default ip the payment of each and every one of the sums due plaintiff. Defendants complaining that they had never been notified of the amounts paid by plaintiff,- or the amounts in which they were liable to her, it was contended by plaintiff they should have made their payments directly to the railroad company. Held that such payment was not contemplated by the contract, and doubted if such course of action was practicable, inasmuch as defendants were not parties to the contract with the railroad company nor recognized by it, as in any way interested therein.</p>

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

<p> Error to Arapahoe County Court, Hon. George W. Dunn, Judge. </p>

<p>Error to Phillips District Court, Hon, L. C. Stephenson, Judge.</p> <p> Application for supersedeas. </p>

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

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

<p>Judgment — Presumptions. Where a judgment is the subject of collateral attack the jurisdiction of the court is conclusively presumed unless the record affirmatively shows the contrary.</p> <p>An affidavit for the publication of the summons in a bill to quiet title stated that certain defendants named, “either reside out of the state or have departed therefrom, or concealed themselves to avoid process, and that their postoffice address is unknown to affiant.’” Held, a compliance with the statute. Green v. Gibson, 53. Colo. 346 followed.</p> <p>The court agree with the law announced in Gibson vs. Wagner, 25 Colo. App., but disagrees with its statment of facts, and, for this reason, rejects it as an authority, if the affidavits are identical.</p>

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

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

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

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

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

<p> Writ of Review to PubUc Utilities Commission. </p>

<p>1. Municipal -Coepoeations — Repeal of Ordinance. The Charter provided that no ordinance shall be amended or repealed except by ordinance adopted in the manner provided in this charter. A petition for the condemnation of lands for the extension of a street across the way of a railroad company averred that the city council had, by ordinance “duly and regularly” passed, conferred upon the city the extension sought. The railway company objected that the ordinance relied upon was void, because never referred to the City Planning Commission, as required by an earlier ordinance. Held that the repeal being by ordinance, the previous ordinance cited, had no application. The earlier ordinance being general, and the later specific the former must give way — whether there be a repealing clause or not.</p> <p>2. Pleading an Ordinance. Allegation of the adoption of an ordinance “duly, regularly and legally” is sufficient without more.</p>

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

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

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

<p>1. Contracts — Custom or Usage, may modify the terms of a contract.</p> <p>2. Burden of Proof. Action by Shipper against a railway company for the destruction by fire of goods alleged to have been delivered to the railway company. The bill of lading was in terms which excluded a recovery, but the shipper relied upon a usage modifying the contract. Held the burden was upon him to establish this usage, and the limits thereof.</p> <p>Plaintiff operated a mill at a station of defendant, where there was no agent. The bill of lading provided that property taken from a station where there was no regularly appointed agent “shall be at owner’s risk until attached to a train.” The car in question was not so attached, but plaintiff relied on the course of dealing with the railway company as modifying the contract. The evidence showed that “no car was ever received from plaintiff at that station, until notice by telephone to the agent at an adjoining! station, or to a train crew, that the car was ready for shipment, or until the bill of lading had been signed, and a copy thereof had passed the hands of the train conductor. Held that these matters were all an essential part of the usage, in order to effect a modification of the bill of lading, and there being no evidence of compliance therewith the ear in question was, at the time of the fire, still in possession of plaintiff and defendant was not liable.</p>

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

<p>1. Pleading — Facts and not Evidence Must be Alleged. In an action upon a contract the complaint must allege such contract, and the execution thereof by defendant.</p> <p>In an action against the city upon a contract granting certain concessions and privileges in parks held not necessary to allege the authority of the park commission.</p> <p>2. Evidence. Where the execution of the contract is denied the proof must show all things requisite to the execution and validity of the contract relied upon.</p> <p>3. Contract — Construed. A contract by the City of Denver granting the right to sell ice cream at certain divisions in the City Park provided that the city should furnish “the usual and customary music.” Held to import, not a custom having the force of law, nor any local usage, but the usual and ordinary practice of the city at the places in question; that the city was under duty to furnish music of the quality and quantity and at the places where it had before that, customarily provided it.</p> <p>The contract provided that the Park Commissioners “may make regulations concerning the management of the business and privileges under this agreement, and such orders and regulations shall be deemed part of this agreement. Held that this provision did not authorize an order by the Park Commission that the Band should on certain days play at other places than the City Park, where this had been customary.</p> <p>4. Damages — Difficulty of Ascertainment, is no ground to deny damages actually sustained by the violation of a contract.</p> <p>5. Appeal and Error — Motion for a New Trial — Bule 19 of 1914. Where the motion for a new trial raises no question as to the sufficiency of the complaint no such question will be considered in this court.</p> <p>6. Contracts — Prior Appropriations — Statute Constmied. A prior appropriation for the expenses of a contract under general statutes sec. 3328, Rev. Stat. sec. 6633, is not required to be alleged in a complaint upon the contract.</p>

<p>1» Equity — Laches—Rescission of Contracts. One induced by fraud to purchase corporate stock, must, if he would rescind the contract, act promptly upon discovery of the fraud. One who knowing the fraud practiced upon him in the sale of corporate stock took no action, until after the lapse of two years and the appointment of a receiver for the corporation held too late to demand rescission for his purpose.</p> <p>2. Insurance Company — Organization—Deposit Required. Until payment of the deposit required by Rev. Stat. sec. 3117, a com- ■ pany organized as an insurance company has no legal capacity.</p> <p>The commissioners appointed to organize the company must return to the subscribers for stock, the money received from them, unless the deposit is made.</p> <p>3. Parties — Necessary Parties. Although where the payment required by sec. 3117 of the Revised Statutes has never been made, the commissioners appointed to organize the corporation must return to the subscribers for stock, the money received from them, the commissioners will not be ordered to make the payment, in a cause to which they are not a party.</p> <p>Where the purchaser of stock gave his note for the amount, the court directed that the subscriber should be protected by an injunction restraining the transfer of the note.</p>

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

<p>1. Supreme Court — Original Jurisdiction. One claiming to be an officer of the District Court, and denied recognition as such, may maintain in this court a petition for mandamus to compel such recognition.</p> <p>2. Bailiff of Court — Status. A bailiff is an officer of the court, but not a state officer within the meaning of the civil service amendment to sec. 13 of article XII of the constitution. Original proceeding in mandamus.</p>

<p>Election Contest — Doubtful Questions, will not be determined in. the Court of Review. A finding supported- by substantial evidence will not be disturbed.</p>

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

<p>Contract' — Construed. In March, 1897, the City of Trinidad purchased of the Trinidad Water Company the works constructed by that company to supply the city with water. The price was to be paid in part by the redemption of the bonds of the company which were a first lien upon the plant. In Septemr ber, 1897, bonds of the city to the principal sum of $335,000.00 were deposited with the defendant Bank to be exchanged for the bonds of the company, and it was agreed that if. at the completion of the contract any of the bonds of the company were outstanding and not deposited with the Bank for exchange, the city might “withhold from the purchase price an amount equal to the principal of said bonds with interest to April 1st, 1897.” That payment of such bonds should be assumed by the city and the amount thereof to be considered by the company as a payment upon the purchase price of the property. Five bonds of the water company were never surrendered, or deposited with the Bank, and were outstanding at the ■ institution of this action, and seven of the bonds of the city were on deposit with the Bank. In June 1914.the City instituted this action demanding surrender of the bonds in the Bank. , The water company opposed this' demand on the ground that the bonds were part of the purchase price, agreed to be paid for their plant, and belonged to it. Held that the City having assumed the outstanding bonded indebtedness of the company and the company having accepted such assumption as a payment of so much of the agreed price of the plant as was represented by such outstanding bonds, that part of the price was, as- between the City and the company extinguished, as well as all interest in the bonds ■ in question. Judgment for the company reversed and the cause remanded with directions to the court below to enter judgment requiring the unconditional delivery of the bonds to the city.</p>

<p>1. Mechanic’s Lien — Trust Deed — Priority. A trust deed on lands duly recorded takes precedence of a mechanic’s lien the statement of which is subsequently filed.</p> <p>2. Conveyance of Land — Construed—Manifest Mistake. A deed of trust described the premises conveyed as a certain quarter of “Section 16” in a specified town and range, and this was-followed by the words “Also excepting" certain parts of “Section 17”, held that the word “excepting” was manifestly inserted by mistake, and should be disregarded as surplusage.</p> <p>3. Conveyances — Defective Description — Records—Notice. An erroneous description manifestly disclosing what the error is, is notice.</p> <p>4. Notice — What Suffices. Whatever is sufficient to attract the attention and put the party upon his guard, calling for inquiry, is notice of everything to which inquiry might lead.</p>

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

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

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

<p>Officer de Jure — Salary. An officer de jure of a municipality, unlawfully excluded from his office, cannot recover from the corporation the salary which it has already paid to the usurper.</p>

<p>1. Pleading — Motion—Waiver. Plaintiff having moved to strike parts of the answer it was stipulated that the court .should decide as to the effect of the matter so assailed. Held that the motion was not determined, and the truth of the allegations of the answer not admitted.</p> <p>2. TAx Deed — Presumptions. A tax deed regular in form is prima facie valid.</p> <p>3. Tax Sale — Redemption—Subsequent Taxes. One who, pursuant to a decree, redeems from a tax sale, must, in addition to the sum specified in the decree, refund moneys expended by the purchaser at the tax sale, in discharging taxes accrued subsequent to the date of the decree.</p>

<p>New Trial — Verdict not Supported by Evidence, cannot stand.</p>

<p>Appeal and Error — Record on Error — Rule 20. An order of the trial court granting- leave to tender the record on error is unnecessary, and a mere nullity.</p> <p>The service of the record on error upon opposing counsel is jurisdictional. The record must set forth the pleadings and the errors assigned.</p>

<p>Principal and Sorety — Liability of Surety. A surety is not bound beyond the letter of his contract. The surety in the bond of a public officer is responsible only for what the officer collects by virtue of his'office.</p> <p>The' County Clerk received from a company conducting an abstract office certain moneys, as his compensation for furnishing, daily, a memorandum of each document filed in the office. There being no provision of law requiring this service, Held that the surety was not liable for the moneys so collected.</p>

<p>1. Evidence — Admissibility—Contract Preliminary to Deed. A con- - tract for the conveyance of an interest in land is admissible to aid in the interpretation, of the conveyance afterwards executed pursuant thereto.</p> <p>2. Conveyance — Construed. Conveyance of a right of way over lands limited to the grantee named “his. heirs' and executors” avails to his assigns. (Rev. Stat. 675.)</p>

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

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

<p>1. Evidence — Judicial Notice, taken of the location and boundaries of every county, as well as the name and location of the-county seat.</p> <p>2. Criminal Law — Venue—Evidence. The people must show that the crime was committed in the county named in the information. But this may be inferred from all the evidence; e. g., where the prosecutor, testifying in the court sitting at the county seat of Sedgwick County, deposed that he lived on a farm in the county ZVz miles west, and % mile south, and that his hogs were stolen, from this farm, held the jury were warranted in finding that the larceny was committed in that county.</p> <p>It was said that the witness in testifying as to, the distance of the farm must of course mean from the place where he was giving testimony.</p>

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

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

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

<p>Statute — Title. Where an act deals with a subject at large, and the title clearly expresses the purpose of the enactment, it must be upheld.</p> <p>2. The title of the statute being “An act to amend sec. 1 of an act to provide for the salaries of certain officers * * *, and to repeal all acts inconsistent herewith, approved, etc., and to repeal all acts and parts of acts in conflict herewith”, sustained, as fixing the future salary of a county judge.</p>

<p>1. Contract — Construed. Defendant leased certain mining premises, to plaintiff wlio agreed to pay the lessor, for all marketable ores delivered by him “upon the terms and conditions of its schedule of prices paid at its mill, at the time of shipment.” Held that nothing in the writing warrants the inference that the parties intended that defendant’s schedule should conform to the market price.</p> <p>2. Evidence — Parol Not Admissible. To show what was intended by a contract in itself unambiguous.</p>

<p>1. Criminal Law — Deliberate Murder — Verdict of Murder in the Second Degree. Where upon the' trial of an indictment for murder, the -evidence shows that the crime was deliberate, and no fact is shown leading to a contrary inference, there should be no conviction of the crime in any less degree. The refusal of the court below to instruct accordingly on request of the prisoner is prejudicial error.</p> <p>2. Instructions — Misleading. An instruction assuming facts, even impliedly, of which there is no evidence, is. misleading and prejudicial error.</p> <p>3. Error — Presumption. Error is presumed to be prejudicial unless the contrary affirmatively appears.</p>

<p>Workmen’s Compensation Act — Limit of Recovery. An insurance company had agreed with a workman to pay him Eight Dollars per week, during total disability. Payments made by the company amounted to over Seven Hundred Dollars. Plaintiff then ceased to be totally disabled, but remained under a i permanent partial disability. Held, under sec. 54 of the Act plaintiff was entitled to the prescribed allowance of $2,080.00 in addition to what he had before received.</p>

<p> jError to Adams District Court, Hon. Harry S. Class, Judge. </p>

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

<p> Original Proceeding in Quo Warranto. </p>

<p> Error to Denver County Court, Hon. George W. Dunn, Judge. </p>

<p>Bail — Liability of Surety. The surety is not to be charged where it appears that without her fault, or the fault of the ■ principal he was unable to perform the condition of the bond, e. g., where the principal was insane, or by sickness was detained from appearing at the date appointed for his appearance.</p> <p>Judgment of forfeiture reversed, but on payment of costs by the surety.</p>

<p>Appeal and Error — Party Bound by Position Below. Lease of lands, upon royalties, to one of two partners. The lease was under seal. The complaint alleged that it was executed for the use and benefit of both the partners, that both entered into possession of, and operated the premises, extracting the clay, upon which the royalties were payable, to a quantity specified. Evidence to establish these allegations was received without objection. The lease also was introduced without objection, and without any reference to it as a sealed writing. Held it was too late to contend, upon error, that in an action upon a covenant one not a party thereto cannot be made liable.</p>

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

<p>1. Real Property' — Easement of Access. The owner of premises abutting upon a public street has an indefeasible right of .access to and from his premises to the street, which cannot be taken away, nor materially impaired, even by legislative authority, without compensation.</p> <p>And this easement is not merely the right of access to the street as a strip of ground, but to the street as used for public travel. It includes opportunity for customers to come to the landowner’s place of business, without unreasonable hindrance or obstruction.</p> <p>2. Obstruction of Street. The City constructed a viaduct upon a public street where plaintiff’s business property abutted. The street itself was obstructed by the piers upon which the viaduct rested, and public travel was entirely diverted from the street as was customary aforetime, and was carried over the viaduct. Held that plaintiff is entitled to compensation for the injury thus occasioned.</p>

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

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

<p>1. Oral License — To Occupy and Improve Lands, e. g. by the erection of a bridge over an irrigating canal, acted upon, is irrevocable.</p> <p>Even if the bridge is found to interfere with the duty of the owner of the irrigating ditch to serve those dependent thereon for water, it is not to be summarily removed, but only through legal and orderly procedure.</p> <p>2. Damages — Measure Of, in an action for destroying a bridge by which a land-owner is entitled to access to his land, is the differ- . ence between the rental value of the land, for the period involved, with the bridge in place, and the rental value after the destruction of the bridge, together with the actual value of the bridge at the time of destruction.</p>

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

<p>1. Chattel Mortgage — Annual Sworn Statement — Statute Convstrued. The saving clause in the repeal of Rev. Stat., sec. 515 (Laws 1917, c. 43) preserves the validity of existing mortgages, but neither expressly nor by implication continues upon the mortgagee the duty to file annual statements as required by file section repealed.</p> <p>The act of 1917 applies to existing chattel mortgages as well as to those subsequently executed. The act so construed is not opposed to Sec. 11 of Art. II of 'the Constitution.</p> <p>And the holder of a chattel mortgage not in default as to any annual statement when the act of 1917 took effect, was not affected by the provisions of Sec. 6298.</p> <p>■ 2. Possession Taken by a Mortgagee — Effect. After possession lawfully taken by the mortgagee he is not required to file any statement, either to preserve the lien of the mortgage, or secure its renewal at the date of expiration.</p>

<p>1. Practice in Error — Failure of the Court Below to Find the Fact, is immaterial. The Court of Review will itself then consider the evidence and find the facts.</p> <p>2. Water Rights — Abandonment. That an irrigating ditch is not used for several years is not of itself an abandonment.</p> <p>3. Parol License — Executed, is irrevocable..</p> <p>4. Estoppel — By Condtict. The general manager of a plantation had verbally licensed the extension over the same of an irrigating ditch. The principals never denied his authority or repudiated acts done by him equal in importance and dignity with the one in question. Held they were estopped to deny his authority.</p>

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

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

<p>1. Negotiable Paper — Negotiation After Payment — Effect. A maker who deposits in bank a promissory note which has in fact been paid and receives credit therefor, is liable thereon, whether the bank is a holder in due course or not.'</p> <p>2. Holder in Due Course — Who is? A holder of a promissory note, which, as he knows, has been paid, who transfers it to another who holds in due course, does not, by re-transfer become a holder in due course.*</p> <p>3. Promissory Note — Payable at a Day Certain — Effect of Payment. Negotiable paper, payable at a day certain, may, even after payment before maturity, be again issued by the maker, and become current.</p> <p>So if paid before maturity by one of several makers.</p> <p>4. Payable on or Before a Day Named, when in the hands of the maker carries with the same presumption of payment as any overdue note in the hands of the maker; and one who accepts it from the maker, so having it in possession, for his credit, must be said to take it after maturity and with notice of the „ payment.</p>

<p>Criminal Law — -Instructions Assuming Fact in Issue. Prosecution for Larceny. The accused contended that the animal of which the larceny was charged was in fact his property. An instruction that, “possession of stolen property recently after the theft is sufficient to warrant a conviction,” held error.</p>

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

<p>The Constitutional Law — Statute Construed.' The proviso to Sec. 11 of Chapter 83 of the Laws of 1917 is constitutional. Commissioners v. Irrigation District, 56 Colo. 515, followed.</p>

<p>Pledgee op Commercial Paper — Duty to Pledgor. It is the universal rule that the pledgee of commercial paper is bound to use reasonable diligence in the collection thereof.</p>

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

<p> Error to Denver District Court, Hon. Frances E. Bouck, Judge. </p>

<p>Judgment — Conclusive Effect. Action upon sundry promissory notes. Payment pleaded. Reply averring prior adjudication, to the contrary. The issue was tried and a verdict directed for plaintiff.</p>

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

<p> Error to Las Animas District Court, Hon. A. F. Hollenbeck, Judge. </p>

<p>1. Jurisdiction — When and How Questioned. Where jurisdiction depends upon a question of fact the question must be presented in apt time and by some recognized proceeding.</p> <p>2. Will — Contest—Mental Ineompeteney. The mere fact that the testator in disposing of his estate believes that one whom he has for years treated and recognized as a son is not legitimate, does not justify the conclusion of mental incompetency.</p> <p>3. Perpetuities — Rule Against Violated. The will constituted parties named, executors thereof, and “trustees of my property, and all rights and credits to whom on the admission of this will to probate the title of my said property shall go.” Held that inasmuch as the will might never be admitted to probate this clause postponing the vesting of the title until that event, was a violation of the rule against perpetuities.</p> <p>The position of the Court of Appeals, 25 Colo. App. 231, disapproved.</p> <p>The announcement of the Qourt of Appeals that a presumption should obtain that the will must be admitted to probate in reasonable time, rejected, as substituting probability for certainty.</p> <p>4. -Will Construed. Held that notwithstanding the invalidity of the demise to the executors, the will, by virtue of a subsequent paragraph, might be carried out completely, and it was the duty of the court to proceed accordingly.</p> <p>A power of disposition without title is sufficient. The heirs take a fee, determinable upon conveyance by the executors; and the provision for distribution of the proceeds by the words “I give and bequeath,” confers a present fixed right to future enjoyment.</p> <p>A clause directing the sale of testator’s property and the payment of prescribed legacies “as soon after my decease as may reasonably be practicable,” etc., held to overrule recommendation of the testator that specific bequests be paid over, “as soon after the admission' of this will to probate as may be possible.”</p> <p>5. Testamentary Trustees — When Title Vests, upon the death of the testator, if no postponement is provided for in the will.</p>

<p>1. Evidence — Circumstantial, is in many cases more reliable than direct evidence.</p> <p>2. Criminal Law — Failure of Accused to Testify in His Own Behalf, is not to be taken as evidence of guilt; but where he fails to explain incriminating facts and circumstances that are peculiarly within his own knowledge, he accepts the chance that the jury may draw any reasonable inference from the. whole evidence.</p> <p>The evidence examined and held to warrant a conviction of the crime of murder.</p> <p>3. ——Motive. Where the jury is satisfied of the guilt of the accused, beyond reasonable doubt, the fact that they are not able to ascertain, the motive of the crime is no ground to acquit.</p>

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

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

<p> Writ of Review on Rehearing. </p>

<p>1. Municipal Corporations — Negligence. Allowing to remain upon a public street objects which naturally occasion fright to a gentle horse, e. g., a steam roller and coal wagon, is negligence.</p> <p>2. Evidence — Competency. That other horses usually shied on approaching the roller is admissible, even though the witness speaking of the matter had no knowledge of the character of these horses.</p> <p>3. -Testimony of Deceased Witness. Testimony given upon a former trial, by a witness since deceased, is admissible. The party offering it is not required to put in evidence the whole of the testimony. The adversary party may read any matter omitted if he desires.</p> <p>4. Statute — Construction. A statute allowing interest is strictly construed. The act of 1911, c. 114, allowing interest upon judgments for personal injuries occasioned by the tort of “any other person, corporation, &c.,” does not extend to municipal corporations.</p>

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

<p>Evidence — Parol Admissible. Defendant executed to the Ice & Storage Company a receipt for certain bonds of the latter, reciting that they were deposited to indemnify defendant for any outstanding bonds of a prior issue. Later, $1,500.00 was deposited with defendant for securing it against liability upon certain bonds of the Ice & Storage Company, and a receipt was given by the latter company, endorsed upon the former contract, for certain bonds, specifying that they were “in lieu of $1,500.00 herewith deposited” with the defendant “to be held by said Trust Company in accordance with the terms under which said bonds were held, as per reverse side.”</p> <p>In an action by Johnston against defendant, parol was held admissible to show that the deposit so made was the money of Johnston, that at the time of the deposit there was an agreement that, the same should be returned upon the furnishing of an indemnity bond (which had in fact been tendered), as to the money, because the writing said nothing about the ownership thereof, and as to the writing, because Johnston, though he i subscribed the writing as President of the Ice & Storage Company was not a party thereto.</p>

<p>1. Evidence — Presumptions. Question as to the conformity or nonconformity of a certain bail bond with the order of the court directing it. There, being no evidence as to the matter, it was presumed that the clerk taking the bond discharged his duty, and accepted a bond in proper form.</p> <p>2. Bail Bond — Technical Sufficiency, is not open to question by one who thereby secures his liberty.</p> <p>3. Seal. An instrument in the form of a bail bond, but lacking the seal, may be enforced as s common law obligation.</p> <p>4. Consideration. The release of the principal is a sufficient consideration as to him and therefore as to the surety.</p> <p>5. Not Specifying the Crime Charged. A party incarcerated in the penitentiary applied to this court for the writ of habeas corpus. The writ was granted, and the petitioner required to give bond, conditioned among other things he should surrender himself if denied a discharge. Held that the omission to specify in the bond the particular crime of which the principal was accused' was unimportant.</p>

<p> Error to Denver District Court,' Hon. Henry J. Hersey, Judge. </p>

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

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