Volume 7 — Colorado Court of Appeals Reports

This was a suit in equity brought by appellees to cancel a deed of conveyance of certain property in the city of Denver, made by appellant, W. J, Stramann, to his wife, Elizabeth H. Stramann, the other appellant, on the 15th day of March, 1893. It is alleged in the complaint that the plaintiffs recovered a judgment on the 2d day of August, 1893, against the defendant W. J. Stramann, for $833 and costs; that on August 3d an execution was issued, which was returned unsatisfied.

<p> Error to the District Court of Arapahoe County. </p>

<p>1. Appeal from County to District Coubt, Notice of.</p> <p>Service of notice of appeal according to tlie statutory requirements is an indispensable prerequisite to the perfection of an appeal from the county court to the district court.</p> <p>2. Same.</p> <p>An appeal from a judgment of the county court to the district court 'must be taken within ten days after judgment, unless, within that time, the court upon good cause shown grants further time for perfecting the appeal. The pendency of a motion for a new trial does not operate to extend the time.</p> <p>3. Appeal to Coubt of Appeals, "When Dismissed.</p> <p>An appeal which has not been perfected within the time prescribed by statute will be dismissed.</p>

<p> Error to the District Court of Pueblo County. </p>

<p>1. Damages — Lost Profits.</p> <p>Where a breach of a contract is the immediate cause of the damage, and the extent of the loss can be ascertained with reasonable certainty, the party responsible must make it good, whether it consists of pnrealized profits or not.</p> <p>2. Instructions.</p> <p>Instructions not warranted by the evidence should be refused.</p>

<p> Error to the District Court of Weld County. </p>

<p>1. Pleadings — Amendment—Hew Cause of Action.</p> <p>An amended complaint which states a new cause of action- may be, on motion, stricken from the files.</p> <p>2. Same.</p> <p>Action by L. on bond executed by defendants as sureties for C., which was conditioned, substantially, that whereas C. has made arrangements with L. to be supplied by him with beer, therefore if C. should pay to L. all moneys coming due for all beer received by C., at rates and times specified, the obligation to be void. An original and two amended complaints were filed, in each of which the bond and its conditions were set forth. In original, it was alleged that L. sold and delivered beer to C. for the agreed prices, to a certain amount of which only a certain small part had been paid. Amended complaint was substantially the same, except that it alleged that all the beer sold and delivered to C. had been sold and disposed of by him. Second amended complaint contained same allegations as the preceding one, with the exception that instead of alleging that plaintiff sold and delivered the beer, it stated that he supplied and furnished it to O. Held, that the second amended complaint did not state a new cause of action.</p>

<p> Appeal from the District Court of Olear Creek County. </p>

<p>Appellate Pbactice.</p> <p>When the verdict is not supported by the evidence, the judgment must be reversed.</p>

<p>1. Commercial Paper.</p> <p>To entitle tlie holder of commercial paper to maintain his action free from the equities which existed between the maker and payee, it is necessary that the paper should have been transferred in the usual course of business and according to the common customs of the commercial world for value before maturity, and to one without knowledge of the matters out of which the equities arise.</p> <p>2. Same.</p> <p>If the note sued on was one of a number given by divers persons to a ditch company for the purpose of enabling it to raise money on its debenture bonds to complete its canal, the transfer of the notes to a trustee to hold and collect for the payment of the bonds which were issued as a part of tlie same transaction would be in accordance with the ordinary course of business, and, all other conditions being met, would give the trustee a title not subject to the equities which otherwise might prevail as between the maker and the company.</p> <p>3. Same.</p> <p>Wherever a bill'or note is disposed of for a valuable consideration, the holder is not bound to inquire whether the indorser has performed or will be able to perform the agreement into which he has entered, so long as there is nothing suspicious or out of the usual course of business in the circumstances attending its issue.</p>

<p> Frror to the District Court of Fremont County. </p>

The action was brought by the plaintiff against the defendants as sureties on the replevin bond of one W. ,W. Palmer. During the year 1889 plaiptiff was the sheriff ,of Pueblo county. One D. C. Bowne was engaged in mercan-. tile business in the city, of Pueblo. On the 8th day of August three different firms sued out attachments against Bowne, the three aggregating about $1,450. ■ On the next day (August 9th) another and fourth firm sued out an attachment for $970.85.

<p>1. Judgment in Replevin.</p> <p>A judgment or finding in replevin, when the defendant has retained the goods under a forthcoming hond, “that the right of possession at the commencement of this action was in the plaintiff,” is void for uncertainty.</p> <p>2. Same.</p> <p>Judgment in replevin for the plaintiff, where the defendant has retained the goods, should award damages for their detention, designate the goods, find their value, and should be in the alternative for the goods or the payment of their established value.</p> <p>3. Sureties on Forthcoming Bond.</p> <p>The responsibilities of sureties cannot be extended beyond the condition and letter of their undertaking.</p> <p>4. Same.</p> <p>The defendant in replevin having desired to retain possession of the goods in controversy, gave a bond conditioned, among other things, to “deliver the said property to the said plaintiff, if such delivery shall be adjudged.” Upon the trial it was simply decided “ that the right of possession at the commencement of this action was in the plaintiff.” Held, that the finding was not a basis for a judgment against the sureties on the bond.</p>

<p> Appeal from, the District Court of Pueblo County. </p>

<p> Appeal from, the County Court of Arapahoe County. </p>

<p>Equitable Assionmestt.</p> <p>An equitable assignment is not created by an agreement to pay out of a particular fund.</p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p>1. Mining Assessments.</p> <p>An “ assessment,” as the term is understood by mining men, is an apportionment among the parties interested of an amount of money necessary, and not on hand, for development or working purposes.' It must be made by some one having authority, and each person liable is entitled to notice of the amount allotted against him and .of the time and place of payment.</p> <p>2. Forfeiture — Mining Contract Construed.</p> <p>A forfeiture of an interest in a mining lease transferred in consideration of .the transferee’s agreement requiring him to pay all assessments against such interest until they shall reach an agreed sum, and providing that when they shall reach that sum he shall have the option to go on as before, or to withdraw from the lease and retransfer the interest, cannot be enforced until the assessments amount to such agreed sum. Before that point is reached, any failure of the transferee to fulfill his covenant imposes only a personal liability.</p>

<p> Appeal from the County Court of Pitkin County. </p>

<p> Appeal from the District Court of La Plata County. </p>

<p>1. Pleadings — Legal Conclusions.</p> <p>An allegation that an assessment and levy of a tax “ were illegal and void in law and wholly unauthorized,” is hut an expression of the pleader’s opinion, and insufficient to confer jurisdiction to award injunctive relief.</p> <p>2. Equity — Remedy at Law.</p> <p>Where there is an adequate remedy at law a court of equity will not take jurisdiction.</p> <p>3. Injunction in Tax Cases — Pleading.</p> <p>The collection of a tax will not he enjoined in any case where it is not. shown that the injury resulting from its enforcement would he irreparable, and this fact must distinctly appear hy issuahle averments.</p>

<p>1. Deed oe Assignment — Recobd.</p> <p>The title to property assigned, for the benefit of creditors does not vest in the assignee until the deed is filed for record in the proper county; and, as in other cases, the title may be defeated by that of a subsequent innocent purchaser, or diminished in value by the lien of a subsequent innocent incumbrancer.</p> <p>2. Pbesumption oe Assent to Deed oe Assignment.</p> <p>The legal presumption of the assent of creditors to a general assignment for their benefit is not conclusive. Any act of positive dissent will overthrow it.</p> <p>3. Recobd oe Deed not Notice.</p> <p>The record of a deed of assignment for the benefit of creditors is not constructive notice of the conveyance of land.</p>

<p>1. Drafts, Conditional Authority to Draw.</p> <p>When the right to draw is conditioned upon the performance of some act or the existence of certain facts, a draft is unauthorized unless it appears that the act has been performed or that the facts exist. Such conditions, however, must be clearly expressed.</p> <p>2. Same.</p> <p>The letter of credit, or authority to make a draft, should define the conditions upon which the act is authorized so clearly that the purchaser may not only know what they are, but may be able for himself, before purchasing, to verify their existence. Where the conditions are definitely stated and their existence or nonexistence capable of ascertainment, he must see that the facts justify the purchase, or he buys at his peril.</p> <p>8. Same.</p> <p>Authority to draw was expressed thus: “If you are still there and need the money yet, you can make draft on me for $500, and I will pay it.” Held, the conditions were so indefinitely expressed that, under the circumstances of this case, an advancement of money upon the draft was warranted and the drawee liable.</p> <p>4. Practice — Pleading.</p> <p>Denials of the legal effect of a paper set up in the complaint are unauthorized and may be stricken out on motion.</p>

<p>1. Watee Bights, Conveyance of.</p> <p>An interest in an irrigation ditcli is property which may be transferred, subject to the same limitations and restrictions which attend a conveyance of real property.</p> <p>2. Same.</p> <p>A conveyance of land without mention of a water right cannot be taken to transfer an interest in a ditch, although the water carried may have been used upon the land. A technical transfer is essential to vest title to the water.</p> <p>3. Same — Review of Decebe — Limitation.</p> <p>Parties to a proceeding for an adjudication under tlie irrigation acts who desire to obtain, under the statute, a review or modification of the decree, must proceed within two years from the entry thereof.</p>

<p>1. Railroads — Care and Diligence Required.</p> <p>As between a railroad company and its trainmen, it is bound to use ordinary care and reasonable prudence to provide a safe roadway as well as sufficient machinery.</p> <p>2. Same.</p> <p>A brakeman on a railroad assumes the ordinary hazards which attend the employment.</p> <p>3. Same — Burden oe Proof — Accident.</p> <p>Proof of the happening of an accident on a railroad in which an employe was injured does not sustain the burden which is upon him to show that negligence on part of the company which is prerequisite to a recovery.</p>

<p> Appeal from the District Court of Logan County. </p>

<p>Corporation Stock — Transfer—Notice.</p> <p>Stock must be transferred on the books of the company within the time prescribed by statute in order to pass title. Notice to an attaching creditor of an assignment and delivery of the certificates by the debtor to one who has neglected to procure a transfer on the company’s books within statutory time does not affect his right to hold them under his writ.</p>

<p>Practice in Criminal Cases — Speedy Trial — Three Terms.</p> <p>The lapse of three full terms of court after the issuance of a capias and arrest of the defendant without an application to postpone or delay the trial entitles him to his discharge, notwithstanding he has been out on bail.</p>

On October 18, 1892, appellees, Hill, Greenfield and Creighton, contracted to sell to W. B. Dungan and Wilbra Coleman a certain mining property in Hinsdale county in this state, and at the date of such contract executed a deed to the property to Dungan & Coleman as grantees, and placed it in escrow with the appellee Henry Derst, to be delivered to the grantees by Derst upon compliance by them with the conditions of the escrow agreement, which was: “Lake City, Colo., Oct.…

<p>1. Appeals — Dismissal of.</p> <p>The dismissal of an appeal from the county court to the district court is not a dismissal of the action; neither does it operate to annul the judgment appealed from.</p> <p>2. Equity.</p> <p>A matter that has been tried and determined at law cannot be reheard in chancery.</p> <p>3. Injunction.</p> <p>Courts of concurrent jurisdiction cannot enjoin each other’s judgments.</p> <p>4. Same.</p> <p>A court of equity is without jurisdiction to enjoin a judgment which is merely erroneous.</p>

<p> Appeal from the District Court of Arapahoe County. • </p>

<p> Appeal from the County Court of Arapahoe County. </p>

<p>1. Ebaud — Transactions Between Husband and Wife.</p> <p>Wherever a conveyance from a husband to his wife is impeached or attacked, they are ordinarily bound to show in the clearest and most favorable light an honesty of purpose and an absence of all intent to hinder or defraud those who may be creditors of the husband at the time of the transaction.</p> <p>2. Same.</p> <p>Parties, whether husband and wife or strangers, have a right to deal with their property as they please, and no cause of action will arise in favor of a creditor unless there be something to show that the thing done was to defraud him or his transferee.</p> <p>3. Same — Preference of Obeditob.</p> <p>A debtor may prefer his creditor, even though the creditor preferred be his wife.</p>

<p>1. Contracts — Incapacity—Drunkenness.</p> <p>Drunkenness, when it goes so far as to destroy the reason, renders the person while in that condition incapable of contracting.</p> <p>2. Same.</p> <p>A mortgage executed by one without consenting capacity by reason of his inebriety will be canceled.</p>

<p>1. Practice in Justice Court — Special Constable.</p> <p>Before a justice of the peace is authorized to appoint a special constable, it must be made to apxiear that some legal right is liable to be jeopardized or that some substantial harm come to a litigant before a regular officer could be found to serve the process. The convenience mentioned in the statute authorizing such appointment must be a legal one.</p> <p>2. Same — Appearance—Waiver.</p> <p>A voluntary and general appearance by a defendant in a court having jurisdiction of the subject-matter of the action is a waiver of defects in the process and service thereof.</p> <p>B. Variance — Waiver.</p> <p>An objection that the proofs did not correspond with the pleadings not raised in the court below will not be considered on review.</p> <p>4. Immaterial Error.</p> <p>A judgment will not be reversed for any error which does not affect the substantial rights of the parties.</p>

<p>1. Names — Initials—Pbesumptioit.</p> <p>While it is presumed that every person has both a Christian and a surname, there is no presumption that a letter is not a Christian name.</p> <p>2. Same — PP.ACTIOE.</p> <p>An objection to a pleading or process that the true full Christian name of the plaintiH is not given cannot be raised by motion when letters or initials are given.</p> <p>3. Same.</p> <p>The strict rule of the common law with respect to the use of initials instead of the full name does not prevail under modern practice.</p> <p>á. Statute op Kbauds.</p> <p>A written acceptance of an order payable out of certain funds and upon specified conditions is not obnoxious to the statute of frauds.</p>

<p> Appeal from the District Court of Montrose County. </p>

<p>1. Practice in Justice Court — Jurisdiction.</p> <p>Action commenced before a justice of the peace against a corporation and service had upon it. It appearing at the trial that the wrong party had been brought into court, it was attempted to cure the error by substituting another corporation. Held, the justice acquired no jurisdiction over the substituted defendant.</p> <p>2. Same.</p> <p>By appealing from the judgment of a justice of the peace and going to trial in the county court, a party waives his objection that the justice had acquired no jurisdiction of his person.</p> <p>3. Parties — Receiver, Leave op Court to Sue.</p> <p>Where a corporation is in the hands of a receiver appointed by the federal court, and its property is in custodia legis, no valid judgment can be taken against it without making the receiver a party; and it seems that consent to bring the action should be obtained of the federal court.</p> <p>4. Practice — Rebuttal Evidence.</p> <p>The admission of plaintiff’s evidence in this case as rebuttal was improper and erroneous.</p> <p>5. Verdict, Excessive Set Aside.</p> <p>A verdict which is excessive should be set aside.</p>

<p>1. Eminent Domain — Measure of Damages.</p> <p>In an action to recover for tlie unauthorized appropriation of land, the measure of damages is the market value of the land at the time it was taken, with the damage to the remainder of the tract resulting from the occupation of the land taken.</p> <p>2. Preponderance of Evidence — Instructions.</p> <p>The refusal to charge that, in determining the preponderance of evidence, the jury may consider the opportunities of the witnesses for forming acquaintance with the facts, their demeanor, their interest in the result, and probability of their statements, is not reversible error.</p> <p>3. Interest.</p> <p>In the absence of contract, interest is recoverable only in the cases enumerated in the statute.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Appellate Pbactice.</p> <p>A judgment will not be reversed for an error which has worked no substantial injury.</p> <p>2. Same.</p> <p>Where the whole charge to the jury upon the only issue of fact was a correct statement of the law, fairly submitting the issue to the jury, and substantial justice has been done between the parties, the judgment will not be reversed because some parts of the instructions standing alone may have been technically erroneous.</p> <p>3. Same — Vabiance.</p> <p>A variance between the allegations and proof is no longer fatal. Any error which does not affect the substantial rights of the parties is to be disregarded. Amendments to make the allegations conform to the proof are to be permitted subject to terms and conditions.</p>

<p>Equity — Labob Obgastizations.</p> <p>A labor organization has no cause of action against another body for adopting regulations the tendency of which is to diminish plaintiff’s membership.</p>

On and prior to July 81, 1889, appellees, Bradford and Jacob J. B. Du Bois, brothers, were owners of a farm in Lucas county, Iowa, upon which was a barn of the value of $2,600, two water tanks of the value of $60.00. The title to the property was in both brothers, equalfy, as tenants in common; was by devise and will of a deceased uncle.

<p> jError to the District Court of Larimer County. </p>

<p> JError to the District Court of Dio Crande County. </p>

<p> jError to the District Court of Rio Crande County. </p>

<p> Error to the District Court of Rio Gtrande County. </p>

<p> Error to the District Court of Routt County^ </p>

<p>1. Tbust Funds.</p> <p>If a check be given to a banker for collection only, and the money realized by him from its collection went with his other property into the possession of his assignee for the benefit of creditors, the right to reclaim it is not affected by any unauthorized act of the assignor in intermingling it with his own funds.</p> <p>2. Same.</p> <p>To warrant a recovery against the assignee of an insolvent banker of money realized by the assignor upon a draft delivered to him by the plaintiff, on the ground that it was a trust fund, it must clearly appear that the draft was delivered to the banker to be collected for the plaintiff, thus constituting him an agent for the purpose; that the money was collected by him, and passed into the hands of his assignee.</p> <p>3. Assignment.</p> <p>A draft does not operate as an assignment of money in the hands of the drawees until its presentation to them, and not then unless they accept it.</p> <p>4. Tbust Funds.</p> <p>If one having trust funds deposits the same in a bank as his own money, has it placed to his individual credit, and mingles it with his other funds in such a manner that its identity is lost, its trust character is by his own act destroyed, and he cannot, after the banker’s assignment for the benefit of creditors, follow it into the hands of the assignee and recover it as a trust fund.</p>

<p>1. Measube op Damages.</p> <p>The measure of damages for a breach of contract in a lease relating to furnishing water for irrigation of the demised premises is discussed in this case.</p> <p>2. Evidence — Damages.</p> <p>Where the landlord is sued upon a breach of contract to furnish water for irrigation, by reason whereof injury resulted to the tenant’s crops, evidence as to the. crops that could probably have been produced but for the want of the water, and the market value thereof, is insufficient to warrant a recovery, in the absence of evidence of the cost of raising, harvesting and transporting the crops to market.</p> <p>3. Pasties — Ceoss Complaint.</p> <p>Where the action is upon a contract, strangers to the agreement, who are not in privity with it, cannot be brought in by cross complaint.</p>

<p>1. Estoppel — Corporations—Dibectobs.</p> <p>Individuals who assume to act as directors of a corporation in contracting a debt of the company are estopped to deny the official positions in which they pretended to act.</p> <p>2. Same — Ratification.</p> <p>Railing to disavow a contract, receiving its benefits and recognizing its' validity, constitutes such an adoption and ratification thereof by a corporation as to estop the company to deny its validity, even though its execution was unwarranted.</p> <p>3. Samce — Dibectobs’ Liability.</p> <p>Directors of a corporation which has failed to file the certificates required by law (Gen. Stats., sec. 252) are liable for the debts of the company contracted during the preceding year.</p>

<p>1. Insurance — Forfeiture.</p> <p>Where the condition, is “if the assured shall * * * within forty days after receiving due notice fail to pay * * * the assessments * * * the association shall not be liable for any sum whatever,” the computation of time must be from the date insured received notice and not from the date of the notice or from the time it was mailed.</p> <p>2. Same — Forfeitures.</p> <p>Forfeitures are to be closely scrutinized, and are not favored.</p> <p>3. Same.</p> <p>A forfeiture of insurance on the ground of nonpayment of an assessment to be available must have been asserted while the insured was delinquent. After receipt of the money it is too late to declare a forfeiture.</p> <p>4. Same — Mandamus.</p> <p>Mandamus does not lie to compel a mutual benefit insurance company to levy an assessment to pay the amount falling due upon the death of a member. The proper course is to bring suit upon the undertaking of the company.</p>

<p> Appeal from the District Court of Pitlcin County. </p>

<p>1. Appellate Peactice — Bill of Exceptions.</p> <p>In tlie absence of a bill of exceptions, rulings admitting or excluding testimony, or in giving or refusing instructions, will not be reviewed.</p> <p>2. Same.</p> <p>The complaining party must show that in some way and at tlie proper time tlie trial court’s attention was called to that which is alleged to be erroneous, or fail in his proceeding to reverse the judgment.</p>

<p> Error to the County Court of Las Animas County. </p>

This was an action of replevin brought by the defendant in error against the plaintiff for the recovery of chattels (household furniture, a piano, etc.) taken by the plaintiff in error, as sheriff, by writ of attachment, in a suit against Sara L. Butters and Henry A. Butters, defendant in error (plaintiff), claiming to be the owner of the chattels. Henry A. Butters and Sara L. Butters were husband and wife, and, while that relation existed, bought a house.

<p>Error to the District Court of Arapahoe Cotmty.</p>

<p>1. Tax Deeds.</p> <p>A tax deed to a county is invalid unless the statute under which it may acquire title has been strictly pursued.</p> <p>2. Same.</p> <p>In order to support a tax deed to the county, it must appear that the property was offered and reoffered at the tax sale, and only finally bid in by the county at the conclusion of the sale, when all bids have ceased, and there is no person willing to make an offer on the unsold property.</p> <p>3. Costs.</p> <p>In equity cases the matter of costs rests largely in the discretion of the trial court.</p>

<p>1. Tax Sales.</p> <p>The statute authorizing the sale of property for taxes must be strictly complied with or the proceedings will be void.</p> <p>2. Same — Purchase by County.</p> <p>After property has been exposed to sale for taxes, it must be offered from day to day until the sale is concluded before it may be struck off to the county in default of another bidder.</p> <p>3. Tax Deed.</p> <p>A tax deed containing recitals showing that the statute has not been complied with is invalid.</p>

The action was ejectment; the controversy over a lode mining claim, situated at Black Hawk on Bob Tail hill. Plaintiff claimed title to it as the “ Tywarnhail Lode; ” defendants as the “ Lady B. Lode.” The two claims contended for covered, if not identically, substantially the same ground.

<p> Appeal from, the District Gourt of Arapahoe County. </p>

<p>Partnership.</p> <p>Parties wlio are engaged in business under an agreement by which each has a specific interest in the profits as such, and not as compensation for services, and losses, if any, are to be borne ratably, are partners.</p>

<p>1. Attachment, Lien of.</p> <p>The lien of an attachment binds the property upon which it operates against any subsequent act of the defendant, but does not, except as provided by statute, affect the rights of third persons outstanding at the time it is acquired.</p> <p>2. Same.</p> <p>An attachment lien upon real estate acquired without notice of an unrecorded deed is good as against the outstanding title.</p> <p>3. Same.</p> <p>The contract between the intervenor and the attachment defendant which is set out in the opinion did not constitute either an absolute or conditional sale of the chattels, so as to expose them to be levied upon as the property of the defendant.</p> <p>4. Fobbign Cobpobations.</p> <p>The making of a single contract in this state by a foreign corporation is not doing business within the meaning of the law prohibiting such corporations from doing business before complying with certain requirements.</p>

Ellis, the appellant, as the assignee of one B. R. Dell, brought suit against the Railroad Company, on the following contract: December 17, 1890. “The Denver, Lakewood & Golden Railroad Company, Denver, Colo. “ Dear Sirs: I will deliver f. o. b. cars at Denver, Colo., you to pay the freight and deduct it from purchase price, forty thousand (40,000) dry red spruce ties, to 8 inches thick, 6 to 9 inch face, 8 foot long, sawed ends, 15 per cent to be 5 to 6 inch face ties to be…

<p>Appeal from the County Court of Arapahoe County.</p>

<p> Appeal from the District Court of Larimer County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Resulting Trusts.</p> <p>If one pays the purchase money for an estate and the deed be taken in the name of another, it will be presumed that a trust was intended for the person who pays.</p> <p>2. Same.</p> <p>If one agrees to purchase land and give another an interest in it, and he purchases, pays his own money and takes the title in his own name,'no trust can arise.</p> <p>3. Express Trusts — Evidence.</p> <p>Parol evidence is inadmissible to establish an express trust.</p> <p>4. Statute op Prauds.</p> <p>A verbal agreement to purchase land for the benefit of another is void under the statute of frauds, and cannot be enforced against the purchaser who, in the absence of fraud, has paid for the land with his own money and taken a conveyance in his own name.</p>

The River and Rail Electric Company was doing business in 1889 and the early part of 1890 in Colorado Springs. The dissensions among the parties interested in the company and business reverses led to a litigation out of which the present suit sprung. The disagreement respecting the management of the corporate affairs bred a purpose on the part of the stockholders to start proceedings for the appointment of a receiver.

<p> Appeal from the District Court of Arapahoe County. </p>

<p>1. Statute of Frauds — Possession.</p> <p>A. sale of chattels which is not accompanied by an immediate transfer and. change of possession is void as agaiDst existing creditors of the vendor. The rights of parties are not affected by any transfer which may be made subsequent to the time of the sale, even though it may occur before an actual levy on the goods by creditors.</p> <p>2. Amendments.</p> <p>Under the circumstances of this, case, the plaintiff’s motion for leave to amend his ad damnum should have been allowed.</p>

<p> Drror to the District Court of Ouray County. </p>

<p>1. Practice — Le&al Actions — Equitable Defenses — Yerdict.</p> <p>When an equitable defense is interposed to an action at law, the only method of taking the advice of the jury is by the submission of special inquiries. A general verdict may not be taken on all the matters involved.</p> <p>2. Appellate Practice.</p> <p>When the verdict is unsupported by testimony, the judgment will be reversed.</p>

<p>Judicial Powee — Special Judge.</p> <p>Neither the court nor the parties to an action can empower a private citizen to preside as judge at the trial or exercise judicial authority-in the case.</p>

<p> Error to the District Court of Rio Grande County. </p>

• One L. C. Lane was a contractor grading streets in the city of Pueblo. From the city there was due or to become due something over $2,300, to be paid in city warrants.

<p>1. Law of the Case.</p> <p>The opinion upon a former appeal in this ease is regarded as conclusive of the question decided.</p> <p>2. Deed of Assignment.</p> <p>A deed of assignment complying with the requirements of the statute is necessary to constitute one an assignee for the benefit of creditors.</p>

<p>1. Jurisdiction — Statutory Adjudication of Water Rights.</p> <p>The court has no jurisdiction in a statutory proceeding for an adjudication of priorities of right to the use of water to determine the disputes between claimants under the same ditch.</p> <p>2. Abandonment — Intention.</p> <p>Whether an act of a party constitutes an abandonment of a water right depends upon the intention with which it was done.</p> <p>3. Same — Burden of Proof.</p> <p>It devolves upon the party alleging an abandonment to prove it.</p> <p>4. Same.</p> <p>The facts shown in this case are insufficient to establish an abandonment of water rights.</p>

The proprietor of the Daily and Weeldy Advertiser, a paper published in Las Animas county, made a contract with the board of county commissioners to publish all advertisements of the county for the year 1898 at the legal rate prescribed by the statute. The agreement was the result of a bid, which was put in by the manager of the paper on the 13th of January, 1893, offering to do the work at a specified rate.

<p> Error to the County Court of Lalce County. </p>

<p>Instructions.</p> <p>Tlie people having produced S., a witness who testified that he assisted the defendant in the commission of the larceny with which the defendant stood charged, the court instructed the jury “thatS. is what is known in law as an accomplice,” and told them how the testimony of an accomplice should be considered. Jlelcl, the instruction was erroneous in that it assumed as a fact that S. was an accomplice, which was an assumption of the guilt of the defendant.</p>

<p>1. Appellate Practice.</p> <p>Tlie rule that an exception to the judgment is necessary to enable the appellate court to pass upon the question of the sufficiency of the evidence to sustain the finding is applicable only where the facts are in dispute. Where the facts are agreed upon, an exception to the judgment is unnecessary.</p> <p>2. Set-off — Judgments.</p> <p>Mutual judgments may he set off against each other, — in courts of law upon summary application; in courts of equity upon motion or bill.</p> <p>3. Same.</p> <p>A mere indebtedness cannot be set off against a judgment on application or motion. It may be done in equity upon bill filed for that purpose, where there are grounds for the exercise of equitable jurisdiction.</p> <p>4. Same.</p> <p>The general doctrine is that where, at the time of assignment of a chose in action, an equitable right of set-off exists against the assignor, the assignee takes subject to that right. The position of assignee of a judgment is not superior to that of the assignee of any other chose in action.</p> <p>5. Attorney’s Lien.</p> <p>It seems that an attorney’s lien upon a judgment is not available against a party proceeding by bill to obtain a set-off against a judgment on cross demand existing when tbe judgment was rendered.</p>

<p> Nrror to the District Court of Arapahoe County. </p>

<p> Appeal from, the District Court of Arapahoe County. </p>

<p>1. Appellate Ubaotice.</p> <p>Where an appeal lias been improperly or insufficiently taken or perfected, the appellee may file the record and move to dismiss.</p> <p>2. Same.</p> <p>An appeal must be prayed within the time prescribed by statute, other, wise the appeal will be dismissed.</p>

This suit and the one following, of Harrington v. Johnson, post, p. 483, were tried together, and both appeals were argued and submitted at the same time, though upon different briefs. This comes from the circumstance that they are the outgrowth of another litigation, but were necessarily brought against two people because they concerned different lots of property which had been transferred to them by trust deeds operating as a security for alleged debts of George Harrington.

To leabn the principal facts on which this case rests, reference must be had to the statement in the case of Harrington v. Hall, ante, p. 474, which immediately precedes this. We now state those facts which distinguish this from the other. The trust deed involved was executed concurrently with the one which was given to Mrs. Hall, to wit, on the 12th of July, 1892. It covered lots 13 to 20, inclusive, in block 6, De Lappe Place.

<p> Appeal from the District Court of Boulder County. </p>

<p> Appeal from the District Court of Boulder County. </p>

<p>Practice — Judgment Should Follow Evidence.</p> <p>Where, upon the testimony, the finding should have been for a sum certain for the plaintiff or for a different sum for the defendant, a judgment arrived at by splitting the difference is arbitrary and erroneous.</p>

<p>1. Mandamus — Pleading.</p> <p>When a warrant is made the basis of mandamus proceedings against the state treasurer to compel its payment, and from the allegations of the petition it appears to have been duly issued by the auditor, it is incumbent upon the treasurer to plead the exhaustion of the fund by antecedent warrants if such be the basis of his defense.</p> <p>2. Warrants on State Treasurer — Preferred Claims.</p> <p>Warrants drawn to pay officers of the executive, judicial and legislative departments of state are preferred claims, and must be paid before money can be put to other purposes.</p>

<p>1. County Waebants.</p> <p>If county warrants are valid upon tlieir face, the presumption is that they were lawfully issued, and this presumption can be overthrown only by positive evidence of their illegality.</p> <p>2. Same.</p> <p>A county warrant issued to the county treasurer expressing upon its face that it was for his salary. Held, that by the word “ salary ” merely legal compensation was meant, and that tho warrant was for the amount of fees and commissions due him by law.</p> <p>3. Same.</p> <p>Money due the county treasurer for services and commissions under the law in force in April, 1887, was properly payable out of the general county fund. While it was unnecessary to make the warrant so payable in terms, there was no impropriety in making such designation.</p> <p>4. Same — Anticipation of Revenue.</p> <p>Section 2 of the act of April 28, 1887, relating to the issuance of county warrants in certain cases against anticipated revenue, is discussed and construed in the opinion.</p>

<p>1. Evidence — Parol Proof.</p> <p>Parol evidence is inadmissible to vary tlie terms of a promissory note, unless, in some cases, tbe evidence shows the delivery to have been conditional.</p> <p>2. Same.</p> <p>Tbe production of a note by an assignee establishes his title, and, in the absence of other testimony, shows him to be a holder for value.</p> <p>3. Immaterial Error.</p> <p>Where a case was tried to the court, although it may have erred in excluding testimony, yet if it appears that, had the evidence been admitted, no other judgment could have been rendered, the error is immaterial.</p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p> Appeal from the District Court of Arapahoe County. </p>

<p>Rule of Decision.</p> <p>No rule of this court has been more often declared and better understood than that, where the testimony is conflicting on issues of fact, it will not pass upon the weight or preponderance of evidence nor interfere with the finding of facts by court or jury when there is testimony to sustain it.</p>

Action brought against John L. Howe, as. administrator of the estate of Daniel R. Hoover, deceased, and his sureties.

<p>1. Receiver — Leave of Court.</p> <p>Generally, a receiver lias no authority to sue for the recovery of property belonging to the estate, or for the collection of demands due it, without first obtaining leave of the court appointing him.</p> <p>2. Pleading.</p> <p>A receiver bringing an action in his official capacity must set forth in his complaint the facts of his appointment and qualification in traversable form, but these may be stated in general terms.</p> <p>3. Same — Practice.</p> <p>An objection that a complaint is indefinite or uncertain must be taken by motion.</p> <p>4 Practice,</p> <p>A receiver was enjoined from doing certain acts. In consequence of his defense the injunction was dissolved. Held, that the authority by which he appeared and procured the judgment of dissolution in that action extends to all subsequent proceedings which have for their object the enforcement of any legal remedyuponhis judgment.</p> <p>5. Parties.</p> <p>Injunction against a toll road company and its receiver restraining the latter from taking tolls was dissolved. Held, in an action upon the injunction bond, that the receiver was the real party in interest, and that the joinder of the company as a coplaintiff would have been improper.</p>

<p> Error to the District Court of Lake County. </p>

Appellee, plaintiff below, brought suit against appellant on a book account, extending from April, 1892, to September, 1898, amounting in the aggregate to $8,878.80, with credits for $2,770.10, claiming a balance due of $1,108.70, and interest, for which judgment was asked. The complaint alleges the demand to be for work and labor, money paid out and expended for the use of the defendant, money lent by plaintiff to the defendant, and for rent of a store room.

<p>1. Appeal Bonds.</p> <p>The statute authorizing an appeal by an administrator from the county to the district court without bond limits the right to matters pertaining to the settlement of the estate, — -where the appeal, though prosecuted by the administrator, is in effect the appeal of the estate.</p> <p>2. Same.</p> <p>When a bond is required, an attempt to appeal from the county to the district court without one, does not confer jurisdiction of the case upon the latter court; neither can the defect be cured by the filing of a bond in the district court after it has dismissed the appeal.</p>