tion 22, art. 3, of the charter of the city of Denver (Sess. Laws, 1885,
p. 93), providing that every warrant drawn upon the city treasury shall
show, among other things, the purpose for which it is issued, held, man-
datory. Raymond v. The People, 329.
6. CITY WARRANTS-WHEN VOID.-The provisions of the statute as
to the form and substance of a city warrant being mandatory, a war-
rant issued without a compliance with its requirements is void upon its
face. Ib.
7. CONSTITUTIONAL LAW. - Section 3712, Mills' An. Stats., fixing upon
railroad companies an absolute liability for damages for all stock in-
jured or killed, and sec. 3713, which provides for a recovery of double
the appraised value of the animals Injured or killed, with a reasonable
attorney's fee in case of failure to pay the appraised value within the
time prescribed, are unconstitutional and void. Denver & R. G. Ry.
Co. v. Outcalt, 395.
8. PRACTICE IN CRIMINAL CASES.-A defendant who has gone to
trial without objection, cannot by motion in arrest of judgment obtain
his discharge on the ground that he was not tried on or before the sec-
ond term of court after he was committed. Heller v. The People, 459.
9. PRACTICE IN CRIMINAL CASES - LIST OF JURORS. - The statute
providing that previous to arraignment of a defendant for a felony he
shall be furnished with a copy of the indictment and a list of the jurors
and witnesses, does not require that such be furnished at any subsequent
time. Ib.
10. STATUTORY CONSTRUCTION. --Statutes tending to effect an object
of great public utility, ought to receive the most liberal and benign in-
terpretation. Warner v. Town of Gunnison, 431.
11. STATUTORY CONSTRUCTION-REPEALS. - General statutes do not
repeal special statutes by implication. Rice v. Goodwin, 267.
12. CONSTRUCTION. A statute may be declared unconstitutional in
part and valid in part, but this can occur only when its provisions can
be separated and made independent. When its provisions are interde-
pendent, the entire statute must stand or fall. Denver & R. G. Ry. Co.
v. Outcalt, 395.
13. TOWN SITE PATENT-CONVEYANCE. -When a patent to a town
site has been issued to the county judge and his successors, a deed by
a commissioner appointed by the municipal authorities passes no title.
Rice v. Goodwin, 267.
14. TOWN SITE - RIGHT OF FIRST OCCUPANT. - It is provided by
sec. 15 of the "Town Site Act" (Gen. Stats., sec. 3284), that the per-
son who shall have first acquired the right to the possession or occu-
pancy of the lands in person, by agent, servant or tenant, or those
claiming under him, shall be deemed to have the prior and paramount
right. Ib.
15. In proceedings under a special statute, any serious departure from
its provisions will vitiate them. Ib.
16. The "Town Site Act" is a special statute, and its provisions re-
lating to practice are not repealed by implication by the civil code,
which is general. Ib.
1. SALE OF CHATTELS WITHOUT CHANGE OF POSSESSION, VOID.-The
intervenor was a purchaser of the goods attached, but the sale was not
followed by an open, notorious and unequivocal change of possession;
held, that as against the creditor of the vendor, the title of the inter-
venor could not be sustained. Goard v. Gunn, 66.
2. SALE OF CHATTELS - STATUTE OF FRAUDS. -No sale of chattels can
be maintained as against an execution creditor, unless there be an im-
mediate delivery and change of possession of the articles sold, and such
possession must be open, notorious and unequivocal. Felt v. Cleg-
horn, 4.
3. STATUTE OF FRAUDS. -Mrs. B., who on account of the illness of her
husband was attending to his business, wrote to his creditor the follow-
ing letter:-"Mr. Hoffer. You will find enclosed fifty dollars, all I can
raise at present, I hope to be able to give you more very soon. Please
give me credit, and oblige. Mr. Bohm is home sick. Mary Bohm."
Held, that the letter was insufficient, under the statute of frauds, to
bind her to the payment of her husband's debt. Bohm v. Hoffer, 146.
4. STATUTE OF FRAUDS.-Where plaintiff parted with nothing in con-
sideration of defendant's promise to pay the debt of another; did not
surrender the right to enforce its claim against original debtor, or waive
any lien upon his property, the promise not being in writing, was within
the statute of frauds and void. Greene v. Latcham, 416.
1. SUMMONS-APPEARANCE. -Defendant was not required to appear
and answer the complaint in obedience to a second summons while his
motion to quash the first was pending. Farris v. Walter, 450.
2. SUMMONS-DEFECTIVE.-Summons which fails to comply with the
provision of the Code of 1889, which provides that it shall briefly state
the sum of money or other relief demanded in the action, is fatally de-
fective, and motion to quash should be sustained. Ib.
3. SUMMONS. ---When summons was not issued within thirty days after
complaint was filed, the suit was properly dismissed on special appear-
ance of defendant for the purpose of such motion, and the motion was
not addressed to the discretion of the court. Steves v. Carson, 200.
4. SUMMONS-PUBLICATION. It is necessary that every material re-
quirement of the statute concerning service of summons by publication
be carefully and strictly pursued in order to give the court jurisdiction.
Davis v. The John Mouat L. Co., 381.
1. CONSTITUTIONAL LAW-TAXATION. - The Constitution (art. 10,
sec. 3) requires uniformity of taxation upon valuation. Denver City
Ry. Co. v. Denver, 34.
2. CONSTITUTIONAL CONSTRUCTION. - A rule or mode of taxation of
property having been prescribed by the constitution, all others are
thereby excluded. Ib.
3. RANGE CATTLE, WHERE RETURNED FOR TAXATION. -It is the duty
of the owner of cattle ranging in different counties to make return to
the assessor of each county of the number owned by him in such county
on the first day of May of each year. In case of his failure so to do, the
assessor should assess them, acting on such information as he may pos-
sess. Metcalf v. Fisher, 375.
4. ERRONEOUS ASSESSMENT, WHO MAY CORRECT. -The board of county
commissioners, as a board of equalization, has almost unlimited power
to correct errors occurring in assessments either before or after pay-
ment of taxes thereon. Ib.
1. TELEGRAPH COMPANY, LIABILITY OF. -A telegraph company fail-
ing to deliver a telegram is liable for such loss or injury as is the direct,
natural and necessary consequence of defeating the object which would
have been accomplished by the seasonable delivery of the message.
Western U. Tel. Co. v. Cornwell, 491.
2. CONTRIBUTORY NEGLIGENCE.-In order to charge a telegraph com-
pany, the loss or injury must be the direct and necessary result of its
negligence in transmitting the message, but contributory negligence of
the plaintiff may prevent a recovery. Ib.
3. DAMAGES. - Speculative, contingent and remote damages, which
cannot be directly traced to a breach of contract or negligence on part
of the company, cannot be recovered for a failure to deliver the mes-
sage. Ib.
4. NOMINAL DAMAGES.-When the company is not made aware of the
purport or importance of a message, and contracts without full knowl-
edge of its importance, and loss is occasioned by failure or negligence
of the company in the transmission or delivery, only nominal damage,
or the price paid for transmitting the message, can be recovered. Ib.
TOWN SITE:
1. OCCUPANTS-TOWN SITES.-The defendant's occupancy of a lot in
a town, the site of which had been entered by the county judge under
the provisions of sec. 2387, U. S. R. S., having been prior to that of the
plaintiff or his grantor, and it not appearing that he had abandoned his
claim, held, that, as between the parties, his was the better right.
Webber v. Petty, 63.
2. TOWN SITE - RIGHT OF FIRST OCCUPANT. - It is provided by
sec. 15 of the "Town Site Act" (Gen. Stats., sec. 3284), that the per-
son who shall have first acquired the right to the possession or occu-
pancy of the lands in person, by agent, servant or tenant, or those
claiming under him, shall be deemed to have the prior and paramount
right. Rice v. Goodwin, 267.
3. PRACTICE UNDER THE "TOWN SITE" ACT. - Pleadings and pro-
ceedings in actions to determine the right to receive a conveyance un-
der the "Town Site" act are controlled by the chancery practice as
modified by that act, and not by the civil code. Ib.
4. TOWN SITE PATENT-CONVEYANCE. - When a patent to a town
site has been issued to the county judge and his successors, a deed
by a commissioner appointed by the municipal authorities passes no
title. Ib.
1. BANKS-TRUST FUNDS. - Moneys deposited or placed in bank for
the payment of a draft become trust funds, applicable only to the pay-
ment of the bill, cannot be diverted from the purpose to which they
were to be applied, and do not lose their character by being commingled
with the general deposits. Hummel v. First Nat. Bank, 571.
2. SAME-ADMINISTRATOR'S INTEREST IN. -Trust funds in bank may
not be diverted to other uses than those designated, do not become the
property of the banker, and form no part of his estate. His adminis-
trator takes and holds them merely as a bailee. Ib.
3. CORPORATE LOANS - MISAPPLICATION. - A. misapplication and
waste of money received by a corporation is not a ground for invali-
dating the security upon which the loan was obtained. Robinson v.
Dolores L. & C. Co., 17.
4. EVIDENCE-RESULTING TRUST.-Parol evidence is competent to
prove a resulting trust. Such a trust must result, if at all, at the in-
stant the deed is taken and the legal title vests in the grantee. First
Nat. Bank v. Campbell, 271.
5. PROOF, QUANTUM OF. - Unquestionable evidence is required to
establish a resulting trust. Whatever is essential to exhibit the equity
of the cestui que trust must appear in a clear and unclouded light.
First Nat. Bank v. Campbell, 271.
6. HOLDER OF LEGAL TITLE, WHEN TRUSTEE. - If for any reason
recognized by courts of equity as a ground of interference in such
cases, the legal title has passed from the United States to one party,
when, in equity and good conscience and by law, it ought to go to an-
other, a court of equity will convert him into a trustee of the true
owner and compel him to convey the legal title. Lee v. The Justice
Mining Co., 112.
7. SAME. When a location has been attempted to be made by an
alien and his assignee has obtained a receiver's receipt based thereon,
one who had made a valid location upon the premises prior to the issu-
ance of the receiver's receipt may invoke the principle above stated for
the purpose of acquiring the legal title. Ib.
8. TRUST DOES NOT RESULT, WHEN.-No trust can ever result to a
grantor when his conveyance is made for a colorable, illegal or fraudu-
lent purpose. First Nat. Bank v. Campbell, 271.
UNRECORDED DEED:
ATTACHING CREDITOR, RIGHTS OF.-A creditor who causes an at-
tachment to be levied on real estate, without notice of an unrecorded
deed by the debtor, is entitled to all the protection afforded an inno-
cent purchaser for value. First Nat. Bank v. Campbell, 271.
VENDOR AND PURCHASER:
1. VENDOR AND PURCHASER-ABSTRACT-ACTION FOR MONEY PAID.
-Where plaintiff agreed to purchase real estate of defendant, paid part
of the purchase money and took a receipt therefor, showing that the
agreement was that the balance was to be paid on or before a day
named, "on delivery of a warranty deed conveying clear title, with
abstract," Held:
That the plaintiff could insist upon the delivery of an abstract show-
ing clear title as a condition precedent.
That upon default in furnishing such an abstract, the plaintiff had
his action for the money paid.
That the defendant could not, in such an action, show as a defense
that the defects in the title disclosed by the abstract did not exist, or
that his title to the premises was complete and perfect. Taylor v. Wil-
liams, 559.
2. SECRET LIENS.-A contract providing for a secret lien may be good
as between the parties, but is void as against creditors. Weber v. The
Diebold Safe & L. Co., 68.
3. CONTRACT OF SALE-RESERVATION OF TITLE.-A provision in a
contract of sale that the vendor shall retain the title to the chattels
sold until payment of the price is, as against creditors of the vendee,
void, when he is invested with possession of the thing sold and the in-
dicia of ownership. Such secret liens are constructively fraudulent as
against creditors of the purchaser. Ib.
1. DISQUALIFICATION OF JUDGE, WHEN CAUSE FOR CHANGE OF VENUE.
-The disqualification of a district judge is never a cause for changing
the place of trial, except when a competent judge of another district
cannot be procured to appear and try the action. Smith v. The People,
99.
2. VENUE - JURISDICTION.-If an action is brought in the wrong
county, the court cannot retain jurisdiction after motion in apt time by
the defendant to change the place of trial to the county in which it
ought to have been commenced. Ib.
3. CHANGE OF VENUE A PRIVILEGE-JURISDICTION.---The right to
a change of place of trial in an action commenced in the wrong county
is a privilege which may be waived, but when properly demanded, it
divests the court of jurisdiction to proceed. Ib.
|