Volume 8 — Colorado Reports

<p> Appeal from District Court of Park County. </p> <p>The facts are stated in the opinion.</p>

Hobbs, plaintiff below, filed his complaint on the 30th day of November, A. D. 1880, against William J. Murphy, defendant below, alleging: “L “That, on the 2d day of August, A. D. 1880, atAhe county of Weld, the defendant obtained a warrant for the arrest of this plaintiff, Willie B. Royce and Isaac L. Hoopes, from James H. Jones, a justice of the peace in and for the county of Weld aforesaid, on a charge of taking and removing, with felonious intent, two mules belonging (as…

<p>Under the statute of this state (section 263, Code) a mortgagee has a lien merely, and if out of possession, and not entitled to possession, cannot maintain an action of trespass for damages.</p>

<p>1. At common law the regularity of the ministerial acts preceding a tax deed, and upon which it rests, is not presumed; in the absence-of statutory provision it is not admissible in evidence without proof that all the requirements of the law have been complied with by the agents of the government.</p> <p>By a statute of this state a tax deed is made prima facie evidence of these prerequisites, and that the property was subject to taxation.</p> <p>A tax deed can only be assailed by one who has title, claim or color of title.</p> <p>2. It is the better doctrine that both color and claim of title may exist without any instrument, provided such claim or color be in good faith; in the absence of writings there must be some visible act, sign or indication showing the extent of the boundaries of the land claimed.</p> <p>3. When the statutory period for redemption has expired, the tax title absorbs the whole estate, including the fee of the patentee; the tax deed, however, remains subject to impeachment by proper parties for ii'regularity in the proceedings on which it rests during the statutory period of five years from the date of sale.</p> <p>4 It is incumbent upon the party relying upon his possession under the statute of limitations as against the owner of the tax title to establish not only a claim and color of title, but also the bona fides thereof.</p>

<p>1. The statute authorizes a change of boundaries in certain cases, and the relocation of a mining claim by the owners. It also makes provision for supplying omissions or amending defects in the original location certificate; and where such amendment is made before adverse rights attach, the amendment relates back to the original location.</p> <p>2. A subsequent locator cannot object that all the steps necessary to a valid location of a mining claim were not performed at the time of its location, provided they were afterwards performed before other rights attached.</p> <p>The rule is applicable when, objections are made that claims were not sufficiently marked upon the ground at the time of location.</p> <p>Also in cases of failure to file location certificates within three months after discovery of claim,- as required by statute.</p> <p>Also for failure to sink a discovery shaft to mineral in place at time of survey.</p> <p>3. The object of the statute in requiring an affidavit to be made and recorded of annual labor performed is to preserve evidence of the fact that the labor was performed; the law fixes no time within a year when the work must be done, and if done any time during the year it is enough.</p> <p>4. The statute does not provide that an affidavit shall not embrace more than one claim, and if more than one is included it cannot be construed into an omission or evasion of any material requirement.</p> <p>5. If work is resumed on a claim after it has been open to relocation, but before relocation is actually made, the rights of the original locators stand as if there had been no failure.</p> <p>6. The congressional act of January 23, 1880, fixed the 1st day of January as the commencement of the annual period for all unpatented claims then existing. The act took effect from the date of its passage. The object of this amendment of the law was to render the annual periods uniform as to all mining claims, and the exemption of claims from the performance of labor for a portion of a year in certain cases was a necessary result of the amendment.</p> <p>7. A deed to mining property, acknowledged before a justice of the peace of a county different from that in which the property is situate, without any certificate to the official character of the officer taking the acknowledgment, or to the genuineness of his signature, is not properly admissible in evidence without further proof of its execution.</p> <p>8. The defendant derived title by conveyance from Mary J. Forbes; a deed from L. T. Wright to Jennie Forbes was offered in evidence and received. Held, that the court should have required some proof that these names described the same person.</p> <p>9. Proof that a stranger to a controversy appropriated as his own a claim which had been located, possessed and improved by another, basing his right so to do upon a forfeiture of the rights of the original owner, affords no presumption that the appropriation was lawful.</p> <p>10. The declaration of an original locator of a claim, made-after parting with his right thereto, and offered to impeach the validity of the claim made by him, held to have been properly excluded.</p> <p>11. The verdict in suits of this character should find that one party or the other is entitled to the possession of the claim in controversy by virtue of a compliance with the statutes of the United States and the state of Colorado.</p>

<p> Appeal from District Court of Park County. </p> <p>The case is stated in the opinion.</p>

<p> Appeal from District Court of El Paso County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to District Court of Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from County Court of Lake County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p>1. The law governing the liability of stage-coach proprietors as common carriers of passengers imposes upon such carriers the duty of providing roadworthy vehicles suitable for the transportation of passengers, steady and manageable horses, with strong and proper harness, and careful drivers, of reasonable skill and good habits.</p> <p>2. It is the duty of passengers to comply with the reasonable regulations of the carrier, and to exercise proper care and diligence in avoiding injury to themselves, for the rule that one cannot recover for an injury which has been caused by his own negligence is applicable to this class of passengers.</p> <p>3. Where a passenger in a stage-coach, with two other passengers on the seat with him, had his arm projecting outside the body of the coach, so that when the coach was overturned the other passengers in the seat were thrown down upon him, and his arm caught under some portion of the vehicle and broken, held, that the passenger so injured was not guilty of contributory negligence.</p> <p>4. Where any damage or injury happens to a passenger by the overturning of a coach, a prima fa.cie case is made out by proof that the relation of carrier and passenger existed between the parties; that an accident occurred resulting in injury to the passenger, and that it was occasioned by the failure of some portion of the appliances or means provided for the transportation of the passenger.</p> <p>5. The want of skill of the driver may be shown at the time of the accident, or at any prior time; but his good or bad conduct can only be looked at, at the time the accident occurred, or as connected with the accident.</p> <p>6. The judgment of the jury must govern as to what is a proper and just compensation in an action for personal injury by the overturning of a coach, unless the damages awarded are so obviously disproportionate to the injury shown to be sustained as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken view of the merits of the case.</p>

<p> Appeal from District Court of Park County. </p> <p>The case is stated in the opinion.</p>

<p>Appeal from District Court of Gilpin Countyt</p> <p>The facts are stated in the opinion.</p>

<p> Error to County Court of Jefferson County. </p> <p>The ‘facts are stated in the opinion.</p>

<p>This court reviews a cause upon the record presented here, and is not concerned with the process of reasoning through which the specific results may have been reached by the lower court.</p>

<p> Appeal from District Court of Clear Creeh County. </p> <p>The facts are stated in the opinion.</p>

<p>Plaintiff sold and delivered to defendant a warehouse which, by contract, was personal property; defendant used and enjoyed the same for a time, but failed to pay the purchase price; plaintiff then resold and delivered the building to a third party; Held, that the plaintiff was not entitled to rent for use and occupation.</p>

The bond discussed in the opinion was as follows: “Know all men by these presents, that the Marshall Silver Mining Company of Georgetown, Clear Creek county, Colorado, a corporation duly organized under the laws of Colorado territory, is held and firmly bound unto John Turck, of said county and territory, in the sum of $5,000, lawful money of the United States, for payment of which said sum, well and truly to be made, the said Marshall Silver Mining Company binds itself, its…

<p>1. It is a question for the legislature to determine whether a special city charter can be amended by a general law, and if a general law cannot for any reason be made applicable, then a special law is authorized by the constitution.</p> <p>2. It is not to be presumed that the legislature would act in bad faith, or without due investigation and the exercise of sound judgment, in the passage of special acts; yet in the event of such wrongful action clearly appearing it would become the duty of the courts to interfere. Eveiy question of doubt would, however, be resolved in favor of the validity of the act challenged.</p> <p>3. Sections 13 and 14 of article XIV of the constitution do not prohibit the passage of a special act to amend a city charter granted by a local act passed prior to the adoption of the constitution, when such city has not elected to become subject to, and to be governed by, the general law relating to corporations.</p> <p>4 The subject-matter of article XV of the constitution relates to private corporations. The reference to municipal and the other corporations named in section 2 of the article was for the purpose of excepting them from the operation of the provision respecting special legislation.</p> <p>5. The charter óf a corporation is its constitution, and gives the corporation all the powers it possesses; and in this case held, that upon the taking effect of the amended charter of the city of Denver (act of 1883), all prior legislation and all ordinances inconsistent with its provisions and not embraced within the scope of the saving clause were repealed.</p> <p>6. The provision of the first clause of section 8, article V, of the constitution only prohibits a senator from being appointed to a civil office, not his election thereto.</p>

<p>Or petition for rehearing the following opinion was delivered:</p>

<p>1. In a private action for a public nuisance, special damages must be averred and proved, and the omission of such averment is. not cured by verdict.</p> <p>2. Where a ditch exists by lawful authority, its proprietors are not liable for damages resulting from such existence of the ditch ipso facto merely.</p> <p>3. Where one buys a city lot bordering upon ground set apart or dedicated to any public use, he takes it subject to all the annoyances incident to the purposes of the dedication.</p> <p>4 When a consequence, which would otherwise constitute even a nuisance, is a necessary and probable result of an act done in pursuance of legislative authority, the grant of such authority, if not obnoxious to constitutional objections, operates as a protection, but if done unnecessarily or in a negligent or-improper manner, it cannot then be said to have been contemplated by the grant, and therefore not authorized thereby.</p> <p>5. While such an authorized act exercised within the fair scope of the grant cannot be a public nuisance, it rAay be a private one, and the grant affords no protection to an action for resultant damages; and for consequential injuries resulting from an excess of power, or from an exercise of powers in an improper, careless or negligent manner, a remedy may be had.</p>

Bright, the defendant in error, filed his complaint in. the district court of Arapahoe county, alleging that the plaintiff in error was an incorporation, for the purpose of constructing, owning and maintaining certain ditches for the purpose, among other things, of supplying water for irrigation; that he owned and had owned for eight years a tract of land on the line of the ditch of plaintiff in error, the Golden Oanal Company; that the land had been occupied and used as a…

<p> Error to District Court of Boulder County. </p> <p>Upon rehearing granted.</p>

<p>1. A demurrer on the ground of misjoinder of causes of action is waived by pleading over.</p> <p>2. When the cause of action rests upon the had faith, of an agent, and the agency is denied, the existence of such agency is a question of fact for the jury.</p> <p>3. If a false representation is made in the sale of property in respect to a matter concerning which the purchaser is under no legal duty to the owner for the correctness of his declaration, and upon which the latter would he incautious to rely, such representation cannot form the basis of an action.</p>

<p>Appeal from, District Court of Chaffee County.</p> <p>The facts are stated in the opinion.</p>

<p>The grant of exclusive power and authority to one jurisdiction to restrain, regulate or prohibit a business as to every day in the week, is irreconcilable with the existence of a concurrent power to prohibit the exercise of the same vocation upon a single day in the week.</p>

<p>1. In pi'oving the identity of a patented mining claim the rule is that monuments will control courses and distances; it is not necessary that the former be unquestionable in order to control the latter.</p> <p>2. Courses and distances, under the authorities, are assigned the lowest place in the scale of evidence, as being the least reliable.</p> <p>3. It is not so much the character of the monuments, as satisfactory proof of their location, that is to fix the locus in quo.</p> <p>4. It is only after the entire description in a patent has been considered j and found so inaccurate as to render the indentity of .the grant wholly uncertain, that the grant is to be held void.</p>

This was a suit to dissolve a partnership, the appointment of a receiver, for an accounting and injunction restraining the appellee from interfering with the property of the copartnership pending the suit. The injunction was granted and a receiver appointed. Other facts are stated in the opinion.

<p> Appeal from, County Court of. Bent County. </p>

<p>When work performed under a contract has been accepted, the party performing is entitled to compensation, and if defective, a claim for damages, if not waived, may be recouped.</p>

<p>1, Under section 75 of the Code of Procedure every material allegation of an answer not controverted by a replication shall be taken as true, and the defendant may become entitled to judgment on his answer. But the right may be waived by the defendant going to trial as if the issues were properly made up.</p> <p>3. The rule governing motions of the character of motions for non-suit is, that the precise ground of the motion must be stated; the party should lay his finger on the point of his objection.</p> <p>3. A motion for judgment non obstante veredicto is not a proper motion to be interposed by a defendant, and when interposed should not be entertained. The proper motion for the defendant, when the verdict is for the plantiif, is in arrest of judgment.</p> <p>4 Objections to the form of a verdict cannot be raised for the first time in this court.</p> <p>5. The requirement under section 3334 of the United States statutes, that the record of a mining claim shall contain such a description by reference to some “natural object ” as will identify the claim, admits a tree as a fixed natural object; it should be marked so as to be readily identified, unless it possesses peculiarities so different from other trees in general, that a description thereof is sufficient to identify it.</p> <p>6. It is not necessary that a location certificate of a mining claim should state the distance from the discovery shaft to the side lines.</p> <p>7. It is a rule -that where a deed or other instrument is susceptible of two constructions, one of which the law would carry into effect, while the other would be in contravention of some legal principle or statutory provision, the parties will always be presumed to have intended the former.</p> <p>8. A man who acts in a public office is presumed to have been rightfully appointed thereto. The issuing of a commission is the final act which evidences the fact that all necessary steps have been taken to perfect the appointment to office.</p> <p>9. Courts will not presume that the law-making power intended to require an impossibility.</p> <p>10. The amount paid on annual labor is not conclusive that work of that value has been done on a mining claim, but the actual value thereof is the true test whether or not the law has been complied with. When the testimony is conflicting as to the value, it is proper to consider whether there has been a bona fide attempt to comply with the law.</p>

<p> Error io District Court of Clear Creeh County. </p> <p>The facts are fully stated in the opinion.</p>

<p>1. Resulting and constructive trusts, like implied trusts, are said to arise by operation of law upon the transaction of the parties; but unlike the latter there is no fair implication of an actual intention to create a trust. In resulting trusts the law sometimes presumes an intention, but this is a legal fiction.</p> <p>2. The essence of constructive trusts seems to be fraud, deceit or bad faith, no effort being made to include them in the intention of the contracting parties.</p> <p>3. An express agreement providing for a partnership as such is not necessary to create the relation; that a partnership may exist as to a single transaction is elementary; community of losses is not , essential to the partnership relation.</p> <p>4. The statute of frauds has no application to resulting or constructive trusts, because both are created by operation of law.</p> <p>5. A trust in land cannot be predicated upon proof of an agreement to create a partnership for the purpose of purchasing and handling or improving the same, the partnership relation not having existed prior to acquisition of title, and no partnership funds having been invested in the property.</p> <p>6. If A., holding a trust fund, invests from his private funds, in property for the purchase of which there has been no discussion between him and his cestui que trust, no court will attempt, from the mere fact of his being a trustee, to fasten upon the realty bought a trust estate in favor of his beneficiary.</p> <p>*5'. Suit being brought for an equitable estate in realty claimed to arise as a resulting or constructive trust through partnership transactions, and such relief being denied, a court of equity may retain the cause and proceed to an accounting and settlement of the partnership affairs, provided the evidence indicates a necessity for such accounting and the pleadings are consistent therewith.</p> <p>8. Under section 54 of the Civil Code, in contested cases, the prayer for relief in the complaint is a matter of no significance; it is the duty of the court to grant such relief as the pleadings and evidence warrant whether demanded or not.</p>

<p> Error to District Court of Fremont County. </p> <p>The case is stated in the opinion.</p>

<p>An instrument in attachment proceeding conditioned: “If the said attachment be dissolved and discharged, that he will, on demand, pay to the plaintiff the amount of any judgment that may be recovered against the defendant, not exceeding the sum of $3,500,” held not to be in conformity with the statute (section lié, Code 1833), nor could recovery be had upon it considered as a common law obligation, the condition upon which it was executed not having been complied with.</p>

<p>1. Where the mode is prescribed by law or in the charter of a municipal corporation in relation to the awarding or making of contracts, such mode must be strictly pursued by the corporation or no liability is thereby incurred. The party dealing with a municipal body is bound to see to it that all mandatory provisions of the law are complied with, and if he neglects such precaution he becomes a mere volunteer and must suffer the consequences.</p> <p>S. A contract ultra vires may be ratified. But the ratification of an invalid contract, where an express contract is necessary to bind a municipal corporation in the first instance, and where the contract is required to be made in a specified manner, requires the observance of the same formalities and provisions necessary to be complied with in the making of a valid contract.</p>

The complaint in this case alleged an indebtedness of Linn to Hall and to Hall & Company, and other parties; sedond, a conveyance of a mine to Hall to secure the debt to him, under an agreement that Hall should work the property, receive compensation for his services, also sell the property, and out of the proceeds of sale should pay himself, the debt of Hall & Company and the other debts of Linn, after which, if there was any balance, it was to be paid to Linn; third, that…

<p> Appeal from, District Court of Clear Creek County. </p> <p>The facts are sufficiently stated in the opinion.</p>

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

<p> Appeal from District Court of Pueblo County. </p> <p>The facts are stated in the opinion.</p>

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

<p>1. Broceedings under the act concerning eminent domain are special in their character, and the pleadings are not governed by the code.</p> <p>2. One in possession of a portion of the public domain, without having taken steps to obtain title, is not entitled to compensation for the taking of such land under the act concerning eminent domain; and in awarding damages in such case the want of title should be taken into consideration. If the party is awarded compensation for injury to his improvements only, he cannot complain.</p> <p>3. The official certificate of a register or receiver is competent only under section 1310 of the General Statutes, to establish matters of record in his office.</p>

<p>Petition for a rehearing.</p>

<p>1. Under the constitution the two houses of the general assembly cannot, by a separate resolution of each house, fix the compensation of their officers and employees at a higher rate than allowed by an existing statute.</p> <p>3. The constitutional provision requiring that the legislature should provide by law the number, duties and compensation of its officers and employees, being a provision affecting public rights and essen7 tial to their due protection, should be held to be mandatory.</p> <p>3. When a law has been duly enacted by one legislative assembly, in conformity with a mandate of the constitution fixing the numbejr and compensation of legislative employees, a subsequent legislature may not legally ignore such law without modifying or repealing it.</p> <p>4 A resolution providing that “ all compensation in excess of that pro7 vided by law shall be paid from the contingent fund,” etc,, held to be in conflict with section 38, article V, of the constitution, for an additional reason, that it attempts to increase the rate of couU pensation after the services were rendered. And also held that, under section 33, article Y, of the constitution, it is not within thp province of the general appropriation bill to enact affirmative laws of this character.</p> <p>5. The writ of mandamus should never issue unless the party applying for it shall show a clear legal right to have the thing sought by it; done in the manner and by the person sought to be, coerced. ,</p>

<p> Error to District Court of Pueblo County. </p> <p>The facts are stated in the opinion.</p>

<p>This was a proceeding for disbarment. The facts are stated sufficiently in the opinion.</p>

<p>1. There is no authority of law for issuing an execution pending an appeal.</p> <p>3. While the issuing of an execution pending an appeal may be a void act, rendering the officer issuing the same liable m trespass, y6t if the defendant elects to ratify the execution sale, and receive the benefit of the money realized therefrom, he cannot afterwards recover judgment for the full value of the property sold.</p> <p>3. It must be presumed that objectionable testimony was assented to if no objection was offered to it on the trial. Parties are not entitled to object in this court for the first time on appeal that a defense relied upon was not available.</p>

<p>Where one partner having partnership funds in his possession to be used for partnership purposes, without the consent of his copartner invests the same in land, taking the title to himself, the co-partner may demand an interest in such realty, corresponding in extent with his interest in the money paid therefor, and this is true regardless of the intent of the purchasing partner.</p>

<p> Appeal from District Court of El Paso County. </p> <p>Petition for rehearing.</p>

<p>1. Possession of real estate open and exclusive is sufficient to put a purchaser upon inquiry, but it is the occupant’s duty, when interrogated concerning his claim by one intending to purchase, to disclose the whole truth; if by misrepresentation or suppression of a material fact he misleads the other party, he is thereby estopped from afterwards asserting the claim or equity which he ought to have disclosed, as against the title of such purchaser.</p> <p>2. To constitute an estoppel by election, the act of the party against whom the estoppel is sought must have gained some advantage for himself or produced some disadvantage to another.</p>

<p> Appeal from District Court of Ouray County. </p> <p>The facts are stated in the opinion.</p>

<p>1. Before the repeal of section 395 of the code notice of all motions set for hearing in a county court, except those made during the progress of a trial, was required to be given to the opposite party.</p> <p>2. An application for a rule commanding a plaintiff to refund a docket fee, or in default to submit to a dismissal of his appeal, was an application for an order and hence a motion requiring notice.</p> <p>3. Written pleadings are only required to be filed in causes originally begun in courts of record.</p>

<p> Error to District Court of Latee County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to District Court of Hinsdale County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p>1. The statute of 1868 (section 6, article 12), entitled “Towns and Cities,” provides for the manner of obtaining and settling titles to lots therein by occupants and claimants thereto, and declares who shall be deemed to have the better right to lauds in such cases.</p> <p>2. The statute of 1868 (page 533, sections 9 and 12), providing for a declaration of right to pre-empt lands, was not intended to apply to town lots.</p>

<p> Appeal from County Court of Conejos County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to District Court of Boulder County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p>1. The privilege of abandoning condemnation proceedings under the statute is lost to petitioner whenever the land-owner acquires a vested right to the compensation awarded; such vested right accrues when the amount of the award has been paid or deposited as required by law.</p> <p>3. The petitioner retains the right to abandon even though he procures a statutory order for possession and takes such possession pending the condemnation proceedings.</p> <p>3. Upon final determination of condemnation proceedings in the trial court, a review may be had in this court either upon appeal or error, and the petitioner is not precluded of his right to abandon upon obtaining such review.</p> <p>4. But if petitioner has obtained possession, having made a deposit at the inception of the proceedings, in order to retain such possession pending a review in this court, he must make the deposit equal in amount to the sum awarded as compensation. Failing to comply with this requirement his appeal or writ of error will not be dismissed, but his possession becomes unlawful, and respondent is entitled to relief upon proper proceedings therefor.</p> <p>5. Under the facts in this case, held, that petitioner, upon instituting new condemnation proceedings for the right of way only, might be permitted to retain its statutory possession thereof already taken, upon deposit of the sum named as security in accordance with law.</p> <p>6. Before obtaining possession of the premises pending condemnation proceedings, the petitioner is required to deposit with the clerk, as security, a sum fixed by the court or judge. The amount thus deposited is, in case of abandonment, security for all damages suffered by reason of the temporary occupation, as well as for the compensation awarded if the ownership pass to the petitioner.</p>

<p>1. Where the jury, after deliberating for a considerable length of time, returned into court and inquired of the court if they could indorse on their verdict a recommendation for mercy, and, being instructed that they might do so, quickly agreed upon a verdict of murder, held, that since under the statute the court had no discretion whatever in pronouncing judgment, the instruction was misleading and fatal.</p> <p>2. Under the facts of this case, held that the verdict was clearly not warranted by the evidence.</p>

<p> Appeal from District Court of Custer County. </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from District Court of San Juan County. </p> <p>The facts are stated, in the opinion.</p>

<p> Appeal from County Court of Arapahoe County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to District Court of Clear Creek County. </p> <p>The facts are stated in the opinion.</p>

Appeal from District Court of Pitkin County. This was an appeal from an interlocutory order, and the facts are stated in the opinion.

<p>1. A general law unlimited as to time in its operation is not obnoxious to a constitutional inhibition against local legislation because it happens that but one city in the state has the population necessary to come within its purview.</p> <p>2. The superior court of Denver is not of the same class or grade as the district courts of the state, within the meaning of the constitution. Section 1 of article 6 of the constitution authorizes the creation of the superior court of Denver.</p> <p>3. The statute designating the payment of taxes as a necessaiy qualification of membership in the board of aldermen is not in conflict with section 6, article 7, of the constitution.</p> <p>4. A statute declaring that the board of aldermen shall be the sole judge of the qualification, election and returns of its own members deprives the courts of all jurisdiction over the subjects mentioned.</p> <p>5. The question of prior disability, -like that of subsequent malconduct on the part of an alderman, may be investigated at any time during his term of office. It is the duty of the board to investigate such question whenever properly presented. If no ordinance or rules have been adopted providing a method for conducting such investigation, they may be supplied.</p> <p>6. If the council refuse at the proper time to pass an ordinance for the canvass of votes, the passage of such ordinance, if it be a duty enjoined by law, may be coerced by mandamus.</p> <p>7. If one receive a majority of the legal votes cast, is declared by the proper canvassing board duly elected, is inducted into the office, and proceeds with the performance of his official duties,until the disability is adjudged by a proper tribunal, he is a de facto officer, and his acts performed in the discharge of his official duties are valid and binding.</p> <p>3. One who is a freeholder and tax payer within the city of Denver has such an interest as entitles him to act as relator in proceedings by quo warranto against an alderman.</p>

<p> Appeal from Superior Court of the City of Denver. </p> <p>Petition for rehearing.</p>

<p>Under the act of 1885 providing for appeals to the supreme court, held, that in ordinary cases the only matters essential to the transcript are a copy of the order or judgment appealed from, or the part thereof mentioned in the notice, a copy of the notice of appeal, and a copy of the appeal bond, if any be filed.</p>

<p>Information in the nature of a quo warranto.</p>

<p> Error to District Court of Ouray County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to District Court of Lake County. </p> <p>The facts are stated in the opinion.</p>

<p>1. It is a general rule that the prisoner in a case of felony must be present at every step of the proceedings, or the proceedings will be invalid; except in cases of misdemeanor the privilege cannot be waived by counsel.</p> <p>2. If the prisoner is deprived of the privilege of being present when the verdict is returned, the verdict must be set aside and a new trial granted, or the judgment will be reversed.</p> <p>8. It is the duty of courts to require the proceedings in a cause to be conducted according to the rules of law and to protect the rights of litigants.</p> <p>4. And in this case, when the prosecuting attorney, in his argument to the jury, commented on matters wholly outside the evidence and irrelevant to the subject-matter of the trial, with an evident view to prejudice the jury, notwithstanding the court before the argument, anticipating the conduct of the prosecuting officer, charged the jury that it would be highly wrong and improper to give any weight whatever to the conduct of such officer in this behalf, held, upon objection and exception taken and reserved by the defendant, that a new trial should have been awarded.</p>

<p>This court is without jurisdiction, under the constitution, to entertain and investigate acts done by a judge of a district court since bis induction into office, and which are alleged to disqualify him to hold and administer the duties thereof, by proceedings in the nature of a quo warranto.</p>

<p> Appeal from County Court of El Paso County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to District Court of Fremont County. </p> <p>The facts are stated in the opinion.</p>

<p> Error to District Court of Elbert County. </p> <p>The facts are stated in the opinion.</p>

These were actions for an injunction and mandamus, respectively, brought in this court upon the following statute: “An Act to provide for the payment of county and road taxes in cash, and to repeal all laws in conflict therewith. “ Be it enacted by the general assembly of the state of Colorado: “ Section 1.

<p>Petition for writ of habeas corpus. The facts are stated in the opinion.</p>

<p>1. Where a prosecuting attorney mentioned the fact, in his argument, of the prisoner not availing himself of the benefit of the statute to testify in his own behalf, and was immediately checked, and the court instructed the jury not to consider the conduct of the prisoner in this behalf, held, that such conduct of the prosecutor was not fatal to the judgment.</p> <p>2. Under the facts of this case, held, that the verdict and death sentence were unwarranted.</p>

<p>If a summons substantially complies with all the material requirements of the statute it will be held valid though not containing the exact language.</p>

<p>Petition for mandamus. The facts are stated in the opinion.</p>

<p>1. Under the act of March 8, 1883, to promote and encourage horticulture and forestry in the state of Colorado and to establish a bureau of horticulture, the Colorado State Horticultural Society was constituted a bureau of horticulture provided the society accepted and carried out the provisions of the act.</p> <p>3. By the acceptance of the,act on the part of the Colorado State Horticultural Society, it became a state bureau under the control of the state, and may be subject to the absolute control of the state whenever the legislature so determines.</p> <p>3. The society is not within the constitutional inhibition of section 34, article 5, of the constitution, forbidding appropriations to charitable and other incorporations not under the absolute control of the state.</p> <p>4. The matter of incurring expenses by the society, of adjusting, settling, approving and allowing the same, is to be left to the officers of the society, and the sum of $1,000 is to be paid annually by the state treasurer upon a warrant drawn by the auditor of state upon the order of the society, the-auditor being duly satisfied of the due acceptance of the provisions of the act by the Society.</p> <p>5. The act of 1883, creating the bureau and appropriating $1,000 annually therefor, does not operate in itself to make the appropriation, such as is required by the provisions of the. constitution, nor does it effect a perpetual appropriation annually of the sum named, but merely grants authority for such appropriation, by a separate bill for that purpose. Such appropriation must be made at each successive legislative assembly, and the purpose must be clearly expressed iu the title of the bill.'</p>

<p>1. The great weight of authority appears to uphold the view that in case of a single act being made punishable both by the general law of the state and by the ordinances of the town wherein it was committed, it constitutes two distinct and several offenses, subject to punishment by the proper tribunals of the state and the municipality respectively.</p> <p>2. After a demurrer is sustained to a plea of former conviction in a case of misdemeanor, the plea may be regarded as a plea of guilty and judgment rendered accordingly.</p>

<p>1, Under the act of 188S regulating appeals to the supreme court, the trial court has no voice whatever in determining whether an appeal will or will not lie in given cases. The supreme court is the only tribunal to pass upon this question.</p> <p>2. A supersedeas is not essential to such an appeal; it is an incidental and collateral privilege; the filing of a supersedeas bond cannot be denied by either the trial court or clerk, upon the ground that no appeal lies, and the clerk may be compelled by mandamus to approve and file a bond which he admits to be good and sufficient.</p> <p>3. Per Beck, C. J.— That before allowing mandamus to compel the clerk to approve such bond and issue a supersedeas, this court must determine whether or not an appeal lies from the particular judgment or order.</p>

<p>1. As a general proposition, the objection that instructions in a criminal case were given in the language of the statute is not tenable.</p> <p>2. The ingredient of malice, necessary to constitute the crime of murder under our statute, is a question of fact to be found by the jury and not a question of law to be inferred by the court.</p> <p>3. The burden of proof rests npon the state to prove to the satisfaction of the jury, beyond a reasonable doubt, the existence of all the material elements,necessary to constitute the crime of murder as defined by the statute.</p> <p>4. The entire res gestee should be. laid before the jury to be considered as a whole, without distinction as to what party introduced the several matters of evidence. If, upon such consideration, a reasonable doubt exists as to the guilt of the prisoner of any crime included in the indictment, he must be acquitted. This rule includes all matters of defense growing out of the res gestae which traverse the allegations of the indictment; it is only when the de* fendant sets up independent matters of defense, or matters in avoidance, that a different rule of evidence prevails.</p> <p>5. Under the statute of 1881 the ingredient of malice must be found to exist as to both degrees of murder. The distinguishing feature between murder in the first degree and murder in the second degree is, that to constitute murder in the first degree the jury must find “premeditation,” and specify the same in their verdict, whereas if said fact be not found and specified in the verdict, it is murder in the second degree.</p> <p>6. A verdict of guilty must he based upon proof of the facts charged in the indictment, or upon proof of other facts and circumstances in addition to the fact of killing from which the ingredients necessary to constitute the crime can be fairly inferred.</p> <p>7. Section 36 of the Criminal Code must be construed in connection with other sections of the statute which define the constituent elements of murder especially. Thus construed, there must he the violation of a public law by the hilling of a human being in the peace of the people; in the killing there must be a union or joint operation of act and intention, and the deed must be malicious to such a degree as to come within the expression, ‘ ‘ with malice aforethought, either express or implied.”</p> <p>8. While this statement of the offense concedes that the element of malice may be implied, yet it is plain that the implication is to be made by the jury from 'the proof of facts and circumstances sufficient to warrant such implication.</p> <p>9. When the circumstances surrounding the commission of the homicide are produced in evidence on the part of the state, all matters, if any, which go to justify or excuse the killing must be; by the terms of section 36 itself, considered in favor of the defendant; and if sufficient to manifest that the accused was justified or excused in committing the homicide, he is not bound to prove it by affirmative evidence in his own behalf.</p>

<p>1. Where the plaintiff alleged and the defendant denied the execution in duplicate of an agreement for the sale of a mine, and on the trial the plaintiff proved that the agreement in duplicate had been duly executed and delivered to defendant at the time of the original transaction, held, that the admission of parol proof of its contents, without first requiring plaintiff to serve notice to produce the document, under section 382 of the code, was, if error, an error without prejudice.</p> <p>2. One of the important requisites of a location is that it must be distinctly marked on the ground, so that its boundaries can be readily traced; another is that such a description of the claim shall be given in the location certificate by reference to some natural object or permanent monument as will identify the claim, and where such information is not furnished by the certificate it will be declared void.</p> <p>3. Upon an executory contract for the purchase and sale of a mine, both parties being bound, after performance by the vendor on his part and the refusal of the vendee to accept the deed and pay the purchase money, the vendor may elect to treat the contract as rescinded and sue for damages, or may proceed for specific performance.</p> <p>4. Under the code a formal bill for specific performance is not necessary ; it is sufficient in all civil actions to state the facts of the case ° in plain and concise language, and to state the remedy demanded. If the relief sought be warranted by the facts and the law it will be awarded.</p>

The complaint in this case avers that on September 21, 1880, and since, Darrow, the plaintiff below, was engaged in business as a real estate broker in Denver. That plaintiff and one Thomas Burke had before that purchased of one Woods lots 1 to 28, inclusive, in block 15, Gardner addition to Denver. That plaintiff had advanced $25 towards the purchase money.

The plaintiff in error, was tried and convicted in the district court of Park county, and sentenced to imprisonment in the penitentiary for the term of one year, on a charge preferred under section 6 of an act entitled “Air act to provide for the branding, herding and care of stock, and to repeal certain acts in relation thereto.” The section reads as follows: “If any person shall brand or mark, or cause to be branded or marked, with his, her, or their brand, or any other…

<p>Admissions and declarations of an agent can only be received in evidence against his principal when made within the scope of the agency, contemporaneous with and a part of the res gestee.</p>

<p>1. The statute authorizing constructive service of summons by publication is in derogation of the common law and must be strictly pursued in every material requirement.</p> <p>2. When constructive service by publication is wholly relied upon to give jurisdiction over the person of a non-resident defendant, a compliance with the statute must affirmatively appear of record, even in courts of superior and general jurisdiction.</p> <p>3. Default for want of an answer cannot be entered in such case until the expiration of forty days after the completion of service.</p>

<p>1. In replevin, the rightful possession being found in favor of the plaintiff, nominal damages may be awarded, without averment of special damage, for the wrongful detention, and without proof of actual injury.</p> <p>2. Where there is neither averment in the püeadings nor evidence at the trial showing a change of ownership, or a change in the legal right to possession, after suit brought and before trial, the presumption obtains that the title or right of possession has undergone no such alteration.</p> <p>3. The finding in plaintiff’s favor of the right to possession shows that there has been an invasion of his right sufficient in law to uphold the award of nominal damages, even though the jury, in their verdict, do not expressly declare that the detention was wrongful.</p> <p>4. If the possession of personal property which is incumbered by chattel mortgage remains with the mortgagor, a receiver appointed to take charge of the mortgagor’s estate may have control thereof, subject to the mortgage lien.</p> <p>5. If the possession of personal property has been taken by the mortgagee in pursuance of a default prior to the appointment of a receiver of the mortgagor’s estate, the legal title is in the mortgagee for the purpose of subjecting the property ,jo the payment of his debt, and the receiver cannot be authorized, even in a proceeding in court to which the mortgagee is a party, to molest the latter’s possession, unless he first discharges the debt secured by the mortgage, or the mortgagee is guilty of misconduct, or there is some other very urgent necessity demanded by the interests of those for whom the receiver is acting.</p>

<p> Appeal from District Court of Larimer County. </p> <p>The facts are stated in the opinion.</p>