Volume 8 — Colorado Court of Appeals Reports

<p>Admuustbatiobt.</p> <p>A creditor of an insolvent estate holding collateral security presented his claim, which was allowed to its full amount. Afterwards, under leave of county court, he sold the collateral, realizing nearly one half of his claim. A question having arisen as to the dividend he should receive upon final settlement (whether it should be computed upon the basis of the entire debt allowed, or only on the balance remaining after deducting the sum realized from the sale of the collateral), held that he was entitled to a dividend computed upon the amount remaining after application of the sum realized from the sale.</p>

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

<p>1. Chattel Moktq-age — Change of Possession.</p> <p>Upon default in the performance of tlie conditions of a chattel mortgage, the mortgagee must take actual and exclusive possession of the mortgaged goods or they will be subject to levy at the suit of a creditor of the mortgagor.</p> <p>2. Same.</p> <p>An unacknowledged chattel mortgage is invalid as to creditors of the mortgagor.</p> <p>3. Same.</p> <p>An invalid chattel mortgage cannot, as against creditors, be validated by subsequent acts of the parties, such as by taking possession of the goods.</p>

Hrrortothe District Court of Arapahoe County. Plaintiee alleges that he was, from and after January, 1890, the owner of certain improved lots in a suburb of the city of Denver, fronting on what appears to have been a county road, but locally known as “Fairview avenue,” sixty feet in width.

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

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

<p>1. Judgments.</p> <p>If a judgment in favor of a party be unwarranted by liis pleadings, or if no pleadings were filed, it must be treated as a nullity.</p> <p>2. Same — Reoókd—Evidence.</p> <p>A judgment is dependent for its effect and validity upon the record wliicli precedes it. The record of a judgment, where a recovery is sought upon it in another state, or in any case where its force and effect is to be inquired into, includes the pleadings as well as the judgment entry, and also the process and return thereon if there has been no appearance by the defendant.</p> <p>3. Same.</p> <p>The record of the foreign judgment upon which this action was brought disclosed that the original action was commenced by the filing of a petition entitled “Albert W. Jansen & Co. v. Dana G-. Hyde and N. M. Tedder,” describing the plaintiffs as a firm, and setting forth a demand payable to the plaintiffs in their firm name; the summons followed the complaint; that in the judgment entry the words “ & Co.” were omitted from the plaintiffs’ designation in the title, and the word “plaintiff” instead of the word “plaintiffs” was used to designate the party in whose favor the judgment was rendered. Meld, that the judgment was in favor of the firm, and that A. W. J. could not maintain an action upon it without an assignment of the interests of his coplaintiffs in the original suit.</p>

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

<p>1. Chattel Mortgages — Place oe Record.</p> <p>The county in which mortgaged chattels are situate is the county in - which the mortgage should be recorded.</p> <p>2. Same — Notice.</p> <p>The validity of a chattel mortgage, as to third parties without actual notice, is dependent upon its record in the proper county.</p> <p>S. Same.</p> <p>S. executed and delivered-to appellee a chattel mortgage upon live stock then in Arapahoe county, which instrument contained a stipulation that the cows were to be kept in Boulder county, and was admitted to record in Arapahoe county. S. removed the stock through the county of Boulder to Weld county, and while the stock was in transit -he executed and delivered to appellant another mortgage thereon, which was filed for record in Weld county one hour before that to appellee was filed in the county of Arapahoe. Held, that appellant’s mortgage was not available against the appellee.</p>

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

<p>Appellate Peaotice.</p> <p>This court will not interfere with the findings of fact of the trial court where they are sustained by any substantial evidence.</p>

<p>1. Contracts — Consideration.</p> <p>A promise of a thing of value is itself valuable when made on a sufficient consideration.</p> <p>2. Same — Mutual Promise.</p> <p>Where one promises to perform a contract and another enters into a like engagement, and they both concern the doing of reciprocal acts, the promises are regarded as mutual, and for the breach the injured party may maintain a suit; but if there is no mutuality, it is otherwise.</p> <p>3. Same.</p> <p>Gr. alleged that, desiring to pay off an incumbrance on his property, he made application to S. for a loan upon specified security of a sum sufficient for that purpose, and thatS., with knowledge of the situation and Gl.’s necessities, agreed to make the loan upon the terms mentioned, but subsequently declined so to do, and that Gr. was unable to procure the money elsewhere, in consequence of which his property went to sale, whereby he lost his equity therein, of the value of $1,500. He brought this action to recover that sum of S., because of the alleged breach of agreement. Held, Gr. had no cause of action.</p>

<p>1. Employee, and Employ)®.</p> <p>It is tlie duty of an employer to provide premises which are reasonably safe for the purposes of the employment, aud if there be any hidden or lurking dangers which are known to him and unknown to the employé, it is the duty of the former to notify tlie latter of the existence of such dangers.</p> <p>2. Same — Assumed Risk.</p> <p>It is presumed that by the contract of employment the employé assumes the ordinary hazards of the service.</p> <p>8. Same — Negligence.</p> <p>An employer is not liable to an employé for injuries occasioned by the act or through the negligence of a fellow servant, unless he was himself guilty of negligence in the employment of the offender.</p>

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

<p>1. Appeal Bonds abe Amendable.</p> <p>Bonds given on appeal to this court are amendable, whether the defect he in form or in substance.</p> <p>2. Jurisdiction — Misbecital in Appeal Bond.</p> <p>An appeal was prayed and allowed to this court on condition that appellants file an appeal bond in a specified time and designated amount. The bond was filed and approved, the record was lodged here and the cause submitted by the parties and determined by the court. Held, that there was no failure of jurisdiction by reason of the mere fact that it was recited in the appeal bond that the appellants had prayed for and obtained an appeal to the supreme court.</p>

<p>1. Malicious Prosecution — Probable Cause.</p> <p>By “ probable cause,” as an element in a case of malicious prosecution, is meant such a state of facts and circumstances as would lead a man of ordinary caution, prudence and good conscience, impartially, reasonably and without prejudice, upon the facts within his knowledge, to believe that the person accused is guilty of the crime for which he is prosecuted.</p> <p>2. Same — Question of Law, When.</p> <p>In a suit for malicious prosecution, where the facts are undisputed, the question of whether there was probable cause is one of law for the court.</p> <p>3. Criminal Law — Fraudulently Selling Land.</p> <p>To make out a case under section 888, General Statutes, for selling land a second time, it must be shown that after having sold, bartered or disposed of the land, or after having executed a bond or agreement to sell, he again knowingly and fraudulently sold, bartered or disposed of the same to another person for a valuable consideration.</p> <p>4. Malicious Prosecution — Advice of Counsel as a Defense.</p> <p>In cases of malicious prosecution, the advice of counsel is a fact to be considered by the jury under proper instructions, and its value is dependent upon the honesty and intelligence of the adviser and the circumstances under which it was obtained.</p>

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

<p>1. Public Land — Pbbemptioit.</p> <p>The disability of a preemptor of public land to transfer or assign prior to the issuance of patent extends only to the assignment of his preemption right.</p> <p>2. Same — Possbssoby Rights.</p> <p>The right of an occupant of public land who has complied with the requirements of chapter 90, General Statutes, is as unassailable, except by the general government or persons connecting themselves with the title, as if they held it by patent.</p> <p>3. Amekdmeitts — Discbetioit.</p> <p>Eour months after a motion for judgment upon the pleadings had been filed, the defendant, without showing of cause, moved for leave to amend the answer. Held, no abuse of discretion was apparent in denying the motion.</p> <p>4. Ebauduleitt Rbpbeseittatioits.</p> <p>Generally, a misrepresentation, to afford ground for relief, must relate to facts.</p>

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

<p>1. Denver — Health Commissioner — Abatement of Nuisance.</p> <p>Circumstances may exist which seem to demand summary action for the protection of health and life when the officer upon whom authority for the purpose is conferred will not he held responsible for a destruction of the property which the exigencies of the situation appear to require. But where the necessity of immediate' action does not exist, a judgment condemning the property mnst he the result of a trial before an authorized tribunal in a proceeding to which the person whose rights are to he affected is a party with full opportunity to make his defense.</p> <p>2. Denver Charter — Health Commissioner — Ordinances.</p> <p>The powers of the health commissioner of Denver are derived from the city charter. Additional authority cannot be conferred upon him by ordinance.</p>

<p>Chattel Mobtgages.</p> <p>If a moi-tgagee fails to take possession of the mortgaged chattels upon default, the mortgage is void after maturity as to purchasers or creditors with or without notice.</p>

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

<p>1. Corporations — Powers.</p> <p>A corporation having general power to purchase real estate has power to purchase incumbered real estate, and this necessarily includes power to assume the incumbrance.</p> <p>2. Contracts — Assumption op Incumbrance.</p> <p>The deed accepted by defendant contained the following exception to the clause of general warranty: “ Except an incumbrance of twenty-three hundred dollars, hearing six per cent interest, and also the taxes of 92, which party of the second part agrees and assumes to pay.” Held, that the obligation assumed was to pay both the incumbrance and the taxes.</p> <p>3. Appellate Practice — Assisnments op Error.</p> <p>It is required that, in assignments of error, each error he separately alleged and particularly specified.</p>

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

<p>1. Practice in Probate Cases.</p> <p>Is is error, after the expiration of tlie time allowed by law for tlie presentation of claims against an estate, to permit a claim filed to be so amended as to substitute a different demand.</p> <p>2. Same — Evidence.</p> <p>Proof that the claimant delivered a check to the deceased, by whom it was indorsed and collected on his own account, is not evidence of a loan to the deceased.</p> <p>3. Same.</p> <p>When there is no proof to support the claimant’s demand, there is no question to submit to the jury.</p>

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

<p>1. Assignment fob Benefit of Creditors — Judicial Supervision.</p> <p>For certain purposes, tlie supervision of insolvent estates is placed in the district courts.</p> <p>2. Same — Leave of Court to Foreclose — Discretion.</p> <p>While it may he true that proceedings to determine and enforce the liabilities of an insolvent estate should in all cases have the sanction of the proper court (a point not decided), yet where a creditor of an insolvent estate is plainly entitled to the remedy he seeks to enforce, as the foreclosure of a mortgage, a denial by tlie court of the privilege of resorting to such remedy is not the exercise of sound discretion.</p> <p>3. Rescission.</p> <p>In the absence of fraud, misrepresentation, concealment or mistake, a • contract into which a party has deliberately and voluntarily entered will not be annulled on the ground merely that it was a hard bargain.</p> <p>4. Final Judgment.</p> <p>An order which puts an end to a proceeding in the court in which it is . pending and is a judicial determination of the rights of the parties in so far as they are involved in that proceeding, is a final judgment, and reviewable as such upon error. The fact that such an order is made without prejudice to the right to renew the application does not make it any the less a final judgment.</p>

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

<p>Immaterial Error.</p> <p>As a defense to an. action on a promissory note, defendant pleaded an agreement to extend the time of payment and that the suit was commenced before the expiration of that time. The trial was to the court, which permitted the plaintiff, over defendant’s objection, to introduce the note in evidence. Thereupon, both parties rested. Held, that the error, if any, did not constitute reversible error.</p>

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

Defendant in error brought suit against the plaintiff in error to recover the amount due upon a promissory note dated April 2, 1889, payable 90 days after date, for $1,200, with interest from date until paid at 10 per cent per annum.

' This judgment was entered on a demurrer, and we are only concerned with the sufficiency of the complaint as a statement of a cause of action. The case is peculiar and a somewhat full statement of the pleading must be made. On the death of Isaac Cooper, his wife, Sarah, was on the 7th of December, 1887, appointed administratrix of the estate, qualified and acted until September 6, 1892, when the present plaintiff was substituted.

<p>Contracts — Attachment.</p> <p>Plaintiffs were employed as attorneys at law by defendants to institute and prosecute a suit for damages in tbeir behalf, and were by the agreement to receive as compensation a certain per cent of such amount as might be recovered. Suit was brought by plaintiffs, which, during pendency, was settled by the defendants, who received a sum certain in full satisfaction of their claim, and refused to pay plaintiffs the percentage due them. Held, the contract not specifying the time when plaintiffs’ compensation should be paid, it was payable when their services were completed; and, further, that an attachment in aid of their action to recover it should have been sustained.</p>

<p>1. Amendments — Disobetion.</p> <p>Tlie granting or refusing of amendments to pleadings rests almost entirely in the discretion of tlie trial court, and will not be reviewed unless there was an abuse of discretion and injustice done.</p> <p>2. FOBTBCOMTNa BONDS — ESTOPPEL.</p> <p>Defendant, in an attachment case, wishing to retain possession of the goods attached, executed a forthcoming bond, with sureties, conditioned in effect that in ease the plaintiff recovered judgment, and the attachment was not dissolved, defendant would, on demand, redeliver to the proper officer the attached property, or, in default of such redelivery, pay or cause to be paid the full value of the. property released. Beld, that the sureties on said bond could not, as a defense to an action brought thereon, set up that the goods were not the property of their principal, or claim them as their own.</p>

A writ of error was sued out by Fairbanks, Morse & Co. to reverse a judgment of nonsuit entered against them in an action which they brought against Macleod and four other persons as directors of The Cripple Creek Gold Extraction and Power Company to recover a claim which that company owed the concern for goods sold and delivered between the 1st of November, 1892, and the 1st of March, 1893.

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

<p>1. Attachment Lien — Unrecobded Deed — Notice.</p> <p>A creditor who attaches real estate standing upon the records in the name of the attachment defendant acquires a lien upon the property-attached which takes precedence of an outstanding unrecorded title or interest, provided the attachment is made without notice or knowledge of the outstanding title or interest.</p> <p>2. Notice — Change op Possession.</p> <p>The mere fact that tenants who were in possession of premises at the time a conveyance was executed thereafter pay rent to the grantee does not constitute such a change of possession as to impart notice of the vendee’s rights or put an attaching creditor upon inquiry.</p>

Plaintiff brought suit against the defendant to recover the sum of $5,000, with interest, alleged to have been deposited with the defendant and payment refused.

<p>1. Practice — Waiver.</p> <p>An objection that there is a defect of parties defendant is waived by going to trial without obtaining a ruling thereon.</p> <p>2. Obligations — Parties.</p> <p>The code provision that persons jointly or severally liable upon the same obligation or instrument may all or any of them be included in the same action, at the option of the plaintiff, applies to actions on appeal bonds, and a surety on such a bond may be made the sole defendant to an action thereon.</p> <p>8. Dismissal of Appeal — Affirmance.</p> <p>The dismissal of an appeal by this court for want of prosecution operated to affirm the judgment appealed from, and the liability upon the appeal bond is the same as if the judgment had been directly affirmed.</p> <p>4. Practice — Conbitional Liability.</p> <p>Where the duty of the defendant to pay is conditional, the existence of the condition upon which the liability depends must be shown before the plaintiff is entitled to recover. It devolves upon the plaintiff in an action against a surety on an appeal bond to prove nonpayment of the judgment, when such nonpayment constitutes the breach alleged.</p>

Prior to the 15th of June, 1894, one J. S. Glass was doing business as a merchant in the city of Pueblo. On that date his stock of goods was estimated .at a value of about $9,000. Being insolvent, he on that date executed to Isaac Livingstone, a brother-in-law, a chattel mortgage upon the stock of goods for the sum of $2,529, to appellant for $1,641, one to his wife for some amount not stated, also to two other parties, but, as they were not accepted, need not be noticed.

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

Appellee brought suit in the county court against appellant to recover some 1,600 and odd dollars. The plaintiff was a widow with several children. The estate left by the husband was principally a life insurance policy of 15,000, the amount payable in the state of New York. The defendant was a resident of Port Jervis, New York. Plaintiff formerly lived there, and the parties were acquainted.

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

A suit in equity brought by The Cache la Poudre Irrigating Company, defendant in error, against the plaintiff in error and The Cache la Poudre Irrigating Ditch Company, The Dry Creek Ditch Company, and The Larimer & Weld Irrigation Company, for the alleged illegal diversion and appropriation of water from the Cache la Poudre fiver, and seeking to restrain the defendants by an injunction. The pleadings are very lengthy, being over 40 pages of printed matter.

Standart, as the assignee of Crippen, Lawrence & Co., filed a complaint in the district court and prayed that a mandamus issue against the Canal & Reservoir Company, to furnish the plaintiff twenty-five inches of water for use on a portion of section 11, township 3, 39 W. The plaintiff alleged title in himself coming by mesne conveyances from Eli Allen. After general allegations of title, he stated the basis of his alleged right.

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

<p>1. Appellate Practice — Abstracts.</p> <p>Parties desiring to prosecute appeals and have them considered must prepare abstracts of the record in accordance with the court rules, and therein disclose matter on which they have a right to predicate error.</p> <p>2. Same — Exception.</p> <p>Without an exception to the judgment, alleged error based on the insufficiency of the testimony to support it cannot be considered.</p>

<p>1. Broker — Real Estate Agents — Commissions.</p> <p>One who, without employment or authority so to do, participates in a transaction resulting in the exchange of property of others is not entitled to a commission.</p> <p>2. Ratification.</p> <p>Ratification presupposes knowledge of the act ratified.</p>

<p>1. Special Constable.</p> <p>The appointment by a justice of the peace of a person to act as constable must be in strict conformity with the statute, or the appointment is void, and the service of the process a nullity.</p> <p>2. Same — Justification.</p> <p>A defendant who justifies under an alleged appointment as special constable must affirmatively show that the causes authorizing the appointment existed and that it was made in the manner prescribed by the statute.</p> <p>3. Justice of the Peace.</p> <p>Justices’ courts are not courts of record.</p> <p>i. Justices’ Dockets' — Evidence.</p> <p>Dockets of justices of the peace do not import absolute verity. They are prima facie evidence of the facts stated, but when not consonant with the facts, they may be impeached by oral testimony.</p>

<p>1. Counties — Advertising fob Bids — Tax Lists.</p> <p>It is the duty of the board of county .commissioners, under the act of 1894, to advertise annually for tlie publication of the delinquent tax list, and to let the contract for such publication to the lowest responsible bidder; but a failure to comply with tlie requirements of tlie act does not deprive them of the right to publish the list under and subject to the restrictions of the former statute, and to make an allowance to the printer for publishing tlie same.</p> <p>2. Same — Publication of Tax List — Quantum Meruit.</p> <p>In the absence of a contract for tlie publication of the delinquent tax list and fixing the charges therefor, the printer can recover only tlie value of tlie services rendered, as in an action on a quantum meruit.</p> <p>3. Appellate Practice.</p> <p>Unless tlie bill of exceptions shows that what it contains was all of tlie evidence, the judgment will not be disturbed on the ground that the evidence does not justify it.</p> <p>4. Same — Exceptions.</p> <p>An exception can be preserved only by bill. A journal entry is insufficient for that purpose.</p>

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

<p>Appellate Pbactice.</p> <p>The judgment of tlie trial court as to the facts upon contradictory testimony will not be disturbed. •</p>

<p>1. Practice — Departure from Pleadings.</p> <p>Ordinarily, a judgment in favor of a party upon a case which he has not pleaded is improper, even if his adversary should be negligent in failing to interpose proper objections at the proper time; but when the tacit agreement of the parties controlled the course of the trial and subsequent proceedings, and was acted upon by the trial judge, and the arguments of the respective counsel in this court are based upon the theory which they mutually adopted below, this court may disregard the pleadings and decide the case as the parties have presented it.</p> <p>2. Same — Cumulative Instructions.</p> <p>When instructions requested are substantially embodied in the court’s charge, error cannot be predicated upon their rejection.</p> <p>3. Instructions.</p> <p>An instruction not applicable to the case made by the evidence is improper and should be refused.</p> <p>4. Exceptions.</p> <p>Exceptions to instructions must he specific. The charge of the court below was excepted to thus: “ The defendant by his counsel here and now excepts to the giving of each and every of the foregoing instructions.” Held, insufficient.</p>

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

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

This was a suit in equity brought by defendant in error to restrain the collection of a judgment obtained by plaintiffs in error for $574.03, October 23, 1888. Plaintiff, a wholesale drug concern in St. Louis, sold to Dunagan & Miller (engaged in drug business in Denver) a bill of goods, for which the suit was brought.

<p>1. Administbatobs.</p> <p>Administrators are entitled to proper credits in their accounts for all disbursements made in good faith on behalf of the estate in the course of the administration, whether they concern its necessary expenses or what may be laid out in recovering assets.</p> <p>2. Same.</p> <p>Administrators have power to make contracts with counsel for fees contingent upon the recovery of assets, in which event larger fees are allowable than would be proper where the compensation was certain and enforcible in any event.</p> <p>3. Same.</p> <p>Under the evidence in this case, the administratrix is entitled to credit in her accounts for disbursements made to counsel.</p>

<p>1. Commercial Paper — Alterations.</p> <p>It seems if' a condition written at the foot of a promissory note, limiting some of its terms, be detached therefrom, and there is nothing upon the face of the note tending to put a purchaser upon his guard, an innocent holder, who has paid a valuable consideration for it may recover.</p> <p>2. Erato.</p> <p>Where one of two innocent persons must suffer by reason of a fraud, the loss should fall upon him whose carelessness put it in the power of some one to perpetrate the fraud.</p> <p>3. Commercial Paper — Defense.</p> <p>It seems that an independent agi'eement to extend the time of payment of a promissory note does not constitute a defense to an action on the note commenced before the time to which payment was agreed to be extended.</p> <p>4. Same — Independent Agreement.</p> <p>Although there be appended to a promissory note, and agreed to, a memorandum as follows: “ It is hereby agreed that after the expiration of four months, the above * * * [maker] shall be privileged to have twelve months on the above note,” it does not give the right to twelve months’ time in which to pay. It means, at most, that he had an option to take twelve months in which to pay. It was not a condition so material to the promise of the maker as to defeat a recovery on the note without plea and proof of the exercise of the election.</p> <p>5. Agency.</p> <p>The act of an agent beyond the scope of his authority is not binding.</p>

<p>Appellate Pbactice — Assi&nhbítts op Bbbob.</p> <p>Assignments of error based upon tbe admission of evidence must be so specific as to direct tbe court’s attention to the particular instances complained of, or they may be disregarded.</p>

<p>Specific Pbbfobmance — Unilateeal Cobtbacts.</p> <p>Specific performance of an unilateral contract for the sale of real estate, executed without a consideration, and rescinded before tender of the purchase money, will not be compelled.</p>

<p>1. County Clerk's Compensation — Statutory Construction.</p> <p>Section 557, Gen. Stats., as amended in 1885 (Mills’ Ann. Stats., sec. 812), providing that the county clerk shall receive a reasonable compensation for services rendered as clerk of the board of county commissioners, where no specific fees are allowed and limiting the amount thereof in counties of the third class, affects him only in his capacity as clerk of the hoard, and contains nothing interfering with his right to claim his statutory fees.</p> <p>2. Same — Entering Orders and Eiling Papers.</p> <p>The county clerk is entitled, under section 1452, Gen. Stats., to a fee of thirty-five cents per folio for entering each order of the hoard of county commissioners. The “ order of court,” for which a fee is allowed by this section, means an order of the hoard. He is also entitled, in counties of the third class, to a fee of fifteen cents for the filing of each paper required to be filed, which includes claims, whether allowed or rejected.</p> <p>3. Same — Indexing Records.</p> <p>The hoard of county commissioners has authority to require the record of its proceedings to he indexed by its clerk. When it lias so ordered, the clerk is entitled to a fee of ten cents for each entry in the index.</p> <p>4. Same — Attesting County Warrants.</p> <p>No fee is provided for the clerk for signing or attesting county warrants. Such work falls within that class of services for which, under the act of 1885, reasonable compensation is to he allowed by the board of commissioners, not exceeding, in counties of the third class, six hundred dollars per annum.</p> <p>5. Same — General Rules Relating to Fees.</p> <p>With respect to the compensation to which the county clerk is entitled for his general services (without reference to such as he may perform in his capacity as clerk of the board of commissioners), it is held: If the duty is statutory, and the compensation for its performance is provided, he is entitled to statutory pay. If the duty is statutory, but no compensation for its performance is provided, he is not entitled to compensation therefor. If the duty is not statutory, but is performed by the direction of the board in virtue of the general powers vested in it, and a fee is provided for services of that class, he is entitled to the fee; or, if no fee is provided, he is entitled to reasonable compensation.</p>

This is a controversy over the result of a special election held in the town of Colfax on the 6th day of November, 1894, to determine whether the town of Colfax should be dissolved and the territory annexed to the city of Denver.

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

<p>Mechanic’s Lien Act — Judgment in Pebsonam.</p> <p>The mechanic's lien act permits the entry of a judgment in personam against a defendant only when the plaintiff proves a contract with the defendant on which he may recover, regardless of the lien act.</p>

The matters presented by this record are raised by the demurrer of Callaway, the county treasurer of Montrose county, to a complaint filed by Gifford to obtain a mandamus to compel the treasurer to receive the definite sum of $363.30, which-was the amount of the taxes levied on certain real property, and to issue a receipt as for all the taxes assessed.

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

<p>1. Bill of Exceptions.</p> <p>Although signed by the trial judge, a bill of exceptions must have been tendered for authentication within the time allowed by order of court in that behalf, or it will be disregarded.</p> <p>2. Peesumption on Review.</p> <p>In the absence of a record containing the evidence, it will be presumed that the facts warranted the judgment.</p> <p>3. Recobd.</p> <p>A paper improperly inserted in the record is not entitled to consideration.-</p>

<p> Error to the County Court of Yuma County. </p> <p>Mr. Quitman Brown, for plaintiff in error.</p>

<p>1. Justices’ Pbecincts — Legislative Power.</p> <p>The only limitation upon the power of the legislature in respect of justices’ precincts is that relating to the increase of the number of justices in a precinct.</p> <p>2. Same — -Peesumptiost.</p> <p>The statute empowers the board of county commissioners, upon petition of voters of a justice’s precinct, to change the precinct or create others. In this ease the petitioners described themselves, not as voters, but as residents of the precinct. JSelcl, that it is unimportant how they designated themselves, if in fact they were voters. In the absence of proof to the contrary, it will be presumed in favor of the legality of the order granting the petition that the board satisfied itself of the existence of all the conditions necessary to the exercise of the power.</p> <p>3. Estoppel.</p> <p>It seems that an officer who participates in an election for a successor, and is himself an unsuccessful candidate for reelection, should be estopped to claim that the election was held without authority of law.</p> <p>4. Offices de Eacto, Acts of.</p> <p>A justice of the peace holding over after expiration of the term for which he was elected is an officer defacto, and his acts as such are valid as to the public and third persons.</p> <p>5. Officers — Fees and Emoluments.</p> <p>The fees and emoluments of an office belong to the officer de jure. When they are taken and appropriated by the officer de facto by virtue of his unlawful possession of the office, he must account to the officer de jure for the amount received.</p> <p>6. Same — Sureties.</p> <p>A justice of the peace wrongfully holding over after expiration of his term and excluding his successor from the office, together with the sureties on his official bond, is liable to the successor for the fees and emoluments received while so wrongfully exercising the office.</p>

Appellee brought suit against the city for damages for injuries received by the alleged negligence of the city to keep the streets in repair.

<p>Case Followed.</p> <p>The judgment in this case is affirmed on the authority of Denver v. Johnson, ante, p. 384.</p>

<p>1. Employee and Employé — Negligence.</p> <p>Unless tlie master knew of tlie defect wliicli subsequently produces an injury to the employé, or was°under a duty of knowing it, be cannot be held liable in damages for the injuries sustained, for, in the absence of suck knowledge or duty of knowing, there is nothing on which negligence can be predicated.</p> <p>2. Sajie.</p> <p>One who, possessing all the knowledge obtainable concerning the danger to which he is exposed, continues to prosecute the work voluntarily, must be held to have assumed the risk incident to the employment.</p> <p>3. Nonsuit.</p> <p>An action founded upon the defendant’s negligence should be nonsuited when there is no evidence of such negligence.</p>

<p> Appeal from the County Court of Bl Paso County. </p>

On January 9, 1894, appellee became county superintendenfc of public schools of El Paso county. On January 10, 1894, he appointed his wife deputy superintendent.

<p>1. Insurance — Application.</p> <p>When a policy of insurance has been issued without a written applies tion and without an agreement to execute one afterwards, the liability of the insurer is not defeated by the terms or conditions of an application subsequently delivered.</p> <p>2. Immaterial Error.</p> <p>Unless it can he seen that the exclusion of testimony, even though competent, was harmful to the appellant, the error will not afford a basis for reversal of the judgment.</p> <p>3. Evidence — Declarations op Agents.</p> <p>If the agents of an insurance company deliver a policy without an application therefor, trusting a third party to procure one subsequently, his statements concerning the conditions under which the insurance was made are admissible against the company.</p> <p>4. Insurance — Insurable Interest.</p> <p>The equitable owner of property bas an insurable interest therein.</p> <p>5. Same — Limitation to Agent’s Authority.</p> <p>It seems that a limitation to an insurance agent’s apparent authority is not available to the company against a policy bolder, unless the latter had actual knowledge of the limitation or there was something in the circumstances which would bring it to his attention.</p> <p>6. Appellate Practice — Abstracts.</p> <p>If a document, the refusal to admit which in evidence is assigned as error, is not put in the abstract, it will be assumed that the assignment is not well laid.</p> <p>1. Evidence — Impeachment of Witnesses.</p> <p>Declarations contained in an affidavit made by a witness at another time are not admissible for purposes of impeachment, without first specifically calling his attention to it and affording an opportunity to explain the statements to be used to contradict him.</p> <p>8. Same — Reebeshing Recollection.</p> <p>Witnesses may be permitted to refresh their recollection hy referring to memoranda made hy them directly after the occurrence of the event to which their testimony relates, and to testify from their recollection thus refreshed.</p> <p>9. Appellate Pbactice.</p> <p>No one is permitted to challenge the correctness of a ruling made upon his own motion.</p>

A corporation, The Denver Chamber of Commerce and Board of Trade, was organized under the act providing for the creation of corporations for purposes other than those of pecuniary profit and advantage. Subsequently, the defendant in error, Hubert R. Green, became a member on complete compliance with all the prerequisites to membership.

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

<p>Evidence — J udgment.</p> <p>In an action on the official bond of a clerk of the district court, conditioned that he should pay over all moneys that might come into his hands as such clerk to all persons entitled to the same, and deliver to his successor all moneys, etc., pertaining to the office, it was alleged that a certain sum of money came into the hands of the clerk in his official capacity, and that he had neither paid it to the person entitled to it nor delivered it to his successor. Held, that the record of a judgment between other parties for the recovery of a sum of money, reciting that it had been paid into court and directing it to be applied in satisfaction of the judgment, is admissible in evidence to fix the amount of that defalcation.</p>

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

<p>1. Pkincip aland Surety.</p> <p>Generally, if a creditor recovers judgment against a principal and surety, or against the surety alone, and execution is issued thereon and levied upon the property of the principal subject thereto, and such property is by the act of the creditor released from the levy and lost as a security, the surety is discharged to the extent of his injury. The exception to this rule must be confined to that class of cases as where the surety for the purpose of his indemnification has obtained possession or control of property or money of the principal debtor sufficient for the payment of the debt, and which would otherwise be available to the creditor for that purpose.</p> <p>2. Same — Injunction Bonds.</p> <p>To fix the liability of sureties on an injunction bond there must be a judgment against their principal, but such judgment may be recovered against the principal and sureties in the same action.</p> <p>3. Same.</p> <p>Action against principal and sureties on an injunction bond jointly, judgment taken against the principal, alone, upon which execution was issued, and by levy money of the principal more than was sufficient to pay the judgment was secured. Held, that by such seizure the condition of the undertaking was satisfied.</p>

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

In March, 1889, John J. Riethman leased certain lots in the city of Denver to William Lockhart Smith for the term of five years. In June of the same year he executed a supplemental lease extending the time five years, making the term ten years.

<p>1. Demubbeb.</p> <p>A demurrer cannot be aided by matters dehors the pleading.</p> <p>2. Leave to Sue — Waives.</p> <p>It seems that an application by a receiver to dismiss on'the ground that the action was commenced against him without leave of court comes too late if interposed after he has applied for and obtained a change of venue.</p> <p>3. Same.</p> <p>When a complaint to foreclose a mechanic’s lien against a railroad company and its receiver contains an allegation of leave to sue, it shows upon its face a right to prosecute the action 'to judgment in any form warranted by law. If the plaintiff should fail to establish a lien, or a right against the receiver, it may be dismissed as to him and judgment be had against the company.</p> <p>4. Joint Demubbeb.</p> <p>If a complaint against several defendants states a cause of action against one, their joint demurrer should be overruled.</p>

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

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

Error is laid to the rulings of the court on a motion to dismiss the action for want of authority on the part of the attorney to bring it for one of the plaintiffs, and the overruling of a demurrer… Held: of $30.00 each, being the interest coupons on bonds Nos. 18, 19, and 184, of the series of four hundred originally issued and heretofore described.

<p>1. Eokthcoming Bonds.</p> <p>Tlie liability of obligors in a forthcoming bond is not extinguished in every instance by a redelivery of the property. If the chattels returned were wantonly injured or negligently suffered to waste or deteriorate while in the hands of the defendant or other custodian, the obligors may be held to answer to the amount of their diminished value.</p> <p>2. Same — Pleading.</p> <p>It is necessary in a complaint on a forthcoming bond given in an attachment case, and conditioned for the redelivery of the property in case the plaintiff should recover judgment and the attachment sliould not be dissolved, to allege, inter alia, not only tbatthe plaintiff recovered judgment in tlie action, but that the attachment was not dissolved.</p> <p>8. Pbactice.</p> <p>An objection that the complaint does not state facts sufficient to constitute a cause of action may be made at any time, and although the defendant may have in the trial court confined himself in his argument in support of the objection to a discussion of but one point, he is not thereby precluded from pressing others in a court of review.</p>

<p>Original Proceeding— Certiorari.</p> <p>The Attorney General and Mr. Calvin E. Reed, of counsel, for the People.</p>

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

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

<p>1. Appeal Bonds.</p> <p>The validity of an appeal bond does not depend upon the validity of the judgment appealed from.</p> <p>2. Same.</p> <p>A party against whom a void judgment has been rendered may appeal, but if he does, he must, in order to protect his sureties from liability on the appeal bond, either prosecute his appeal with effect or pay the judgment.</p> <p>3. Same.</p> <p>At the solicitation of parties desiring to appeal from a judgment, a stipulation was procured from the adverse party permitting them to file their appeal bond after the time allowed therefor had expired. The bond was filed in pursuance of the stipulation, but the appeal was afterwards dismissed for want of prosecution. Held, that the validity of the bond is not open to question on the ground that it was not filed within the time limited by the appellate order.</p> <p>4. Dismissal of Appeal — Affirmance.</p> <p>Where a dismissal of an appeal was made without prejudice to another appeal or writ of error, but no appeal or supersedeas was taken or allowed within thirty days thereafter, the dismissal is equivalent to an affirmance of the judgment.</p>

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

<p>1. Judgment — Replevin.</p> <p>The judgment in an action of replevin to be operative must be as provided in the code.</p> <p>2. Same.</p> <p>Judgment in replevin in favor of a party entitled to possession of the goods by virtue of a chattel mortgage should he for the return of the entire property when in the hands of the other party, or for its full value if possession cannot he had.</p> <p>3. Same — Appellate Peaotice.</p> <p>In case of error in the judgment appealed from, the judgment which ought to have been rendered by the court below may he rendered here.</p>

<p>1. Allegations and Pboof.</p> <p>A variance between the plaintiff’s pleadings and proof will defeat a recovery, unless the case be brought within some recognized exception.</p> <p>2. Same — Exception.</p> <p>When the evidence which tends to make a case other than that laid in the complaint is received without objection, and the defendant has not been surprised, the variance is not necessarily fatal.</p> <p>3. Same.</p> <p>Plaintiff, an employé of the defendant, alleged that he was ordered to do a specific thing by one who was authorized to give the order, and that in executing the command he was injured because of the defective machinery operated by the company. Held, that unless the proof showed that he was so ordered, he was, under the circumstances detailed in the opinion, guilty of negligence in attempting to do the act, and that he could not recover without departing from his pleading. Proof that what he did was in the discharge of some duty he was obligated to perform, and which he had a right to perform as his judgment should dictate, would not correspond with his allegations, but whether the variance would be fatal is not decided.</p> <p>4. Employee and Employe — Risks.</p> <p>If an employe has knowledge of defects in the appliances and machinery with which he is working, he is conclusively assumed to waive his right to damages for injuries resulting therefrom and to take the risk on himself, unless he shows that he objected to the use of the machinery and remained in the employment because of a promise to remedy the defect.</p> <p>5. Instructions.</p> <p>Instructions inapplicable to the proof should not be given.</p> <p>6. Witnesses — Physicians—Confidential Communications.</p> <p>A physician or surgeon cannot, without consent of his patient, be interrogated as to any information which he may have acquired, whether by oral statements or as a result of his examination, while attending him.</p> <p>1. Same.</p> <p>Defendant and another company, employing many workmen, established a hospital for the use of both in the care and treatment of their employes. It was supported, in whole or in part, by deductions from the monthly wages of the employés of both companies for a “hospital fund,” which was devoted to the maintenance of the building, hire of physicians, etc. The plaintiff was an employé of the defendant, and, after sustaining an injury, put himself under the charge of the doctor employed by the company, ffeld; that the 'relation of physician and patient existed between them, and that the physician could not, without the plaintiff’s consent, be examined concerning the nature and character of the injuries, the knowledge of which he acquired while the plaintiff was under his treatment.</p>

<p>1. Practice in Criminal Cases — Replevy op Fine.</p> <p>A recognizance given to replevy a fine must be entered into in open court. It is in effect a judgment upon which, in case of default, the clerk may issue execution as upon any other judgment of record.</p> <p>2. Same.</p> <p>A bond executed before the clerk after adjournment of court, conditioned for the payment of a fine and costs within five months, is not a recognizance; and an execution issued thereon, after default, is unauthorized and should be quashed.</p> <p>3. Same — Reco&nizance.</p> <p>A recognizance is an obligation of record entered into before a court or officer duly authorized for that purpose, with a condition to do some act required by law which is therein specified. It differs from a bond in this: that while the latter, which is attested by the signature and seal of the obligor, creates a new obligation, the former is an acknowledgment of record of an existing debt.</p>