2. MECHANICS' LIEN. A mechanic who, under contract, bestows
labor upon a chattel for its improvement is entitled to retain the posses-
sion thereof until he has been paid for his services, but performance of
the contract is essential to the creation of the lien and the existence of
the right of enforcement. Ib.
3. MECHANICS' LIEN-PARTIES.-In an action to foreclose a lien by a
material man or subcontractor, the contractor or original promisor,
against whom a debt must be established as the foundation of a decree,
is an indispensable party. Davis v. The John Mouat L. Co., 381.
4. ACTION, NATURE OF. - An action to foreclose a mechanics' lien is
not, as to its principal basis, a proceeding in rem. Ib.
MINES: See PUBLIC LANDS.
JUDGMENT CLERICAL MISTAKE. When a judgment appears to have
been entered by a clerical mistake, it will be reversed. The Atchison
T. & S. F. R. R. Co. v. Denver, 436.
1. ACTION AGAINST COUNTY-CUMULATIVE REMEDY. - One whose
claim against a county has been presented to and disallowed by the
board of county commissioners has the right to elect to appeal from
the decision of the board, or bring an independent action. Com. of Pit-
kin Co. v. Brown, 473.
2. MUNICIPAL AUTHORITY. -The power of the legislature to confer
municipal jurisdiction, save as controlled by constitutional restrictions,
is practically unlimited. Warner v. Town of Gunnison, 430.
3. MUNICIPAL DISCRETION. - When a city is vested with power to im-
pose license fees, without express limitation as to the amount thereof,
much is left to municipal discretion, and its exercise will not be inter-
fered with by the courts unless it is abused. Semble, an injunction
should never be issued against a municipal corporation unless the right
and power are free from doubt. The Denver City Ry. Co. v. Denver, 34.
4. EMINENT DOMAIN. - Cities and towns are authorized to exercise the
right of eminent domain by condemning private property for public
uses. To supply water for the use of a community is one of the duties
imposed on a municipality, and property taken for that purpose is taken
for a public use. Warner v. Town of Gunnison, 430.
5. SAME.-A town or city may, for the purpose of supplying its inhabi-
tants with water, exercise the right of eminent domain by condemning
private property without the corporate limits. Ib.
6. EVIDENCE-BURDEN OF PROOF.-An objection to the introduction
of an ordinance in evidence on the ground that the "ayes and nays had
not been called upon its passage," must be supported by the proof of
such fact, otherwise the objection will not be sustained. Metcalf v. The
People, 262.
7. LIABILILITY OF COUNTY-WATER COMMISSIONER'S COMPENSATION.
-Under sec. 2 of an act approved March 25, 1889, (Sess. Laws, 1889,
p. 470,) each county into which a water district extends is liable for an
equal amount of the compensation of the water commissioner. Com.
of Park Co. v. Locke, 508.
8. MUNICIPAL POWERS-LICENSE, FEES, ETC.-A municipal authority
cannot, under its power to license, regulate and tax an occupation or
business, tax the property engaged in such business. The Denver City
Ry. Co. v. Denver, 34.
9. ORDINANCE-CONSTRUCTION OF. Under an ordinance providing
"no person shall engage in quarreling or fighting, nor shall ask, invite
or defy any other person to fight or quarrel;" held, that a proprietor of
a store had no right to use force to expel from the room one who refused
to depart when ordered so to do. Metcalf v. The People, 262.
10. SAME.-An ordinance being local, its most authoritative construc-
tion should come from local sources, and when more comprehensive
than the common law, it cannot be tested by common law rules. Ib.
11. POLICE POWER.-A city council cannot under its police power
require a ditch to be confined and reconstructed by boxing, fluming
or otherwise, for the purpose of preventing the washing and cutting
away of property situate along its line and belonging to other parties.
The Platte & Denver C. & M. Co. v. Lee, 184.
12. SAME-RECITALS NOT CONCLUSIVE. - A recital in an ordinance that
"public welfare and safety require" an act to be done is not conclu-
sive upon the judiciary. Courts are not bound by mere forms, nor are
they to be misled by mere pretenses. Ib.
13. SAME-LIMITATION UPON.-A city council cannot under its police
power to promote public health, morals or safety, require the perform-
ance of an act which has no real or substantial relation to those ob-
jects. Ib.
14. PROSECUTION, MAY BE ENJOINED, WHEN.-A city may be enjoined
from prosecuting a property owner for violating an ordinance, when
such prosecution tends to impair vested rights in the property, or by
reason of a multiplicity of suits inflicts irreparable injury without au-
thority of law. Ib.
15. PRACTICE-CUMULATIVE REMEDY.-One whose claim against a
county has been presented to and disallowed by the board of county
commissioners may, under the statute (Gen. Stats., secs. 546 and 547),
either appeal to the district court or bring his action at law or in equity.
His right to bring an action is not excluded by his statutory right of ap-
peal from the decision of the board. Com. of Park Co. v. Locke, 508.
16. CITY WARRANTS STATUTE AS TO FORM OF, MANDATORY.-Sec-
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,
mandatory. Raymond v. The People, 329.
17. 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.
1. CONTRIBUTORY NEGLIGENCE. -In such an action the doctrine of
contributory negligence cannot be invoked by the defendant. The
Union Pacific Ry. Co. v. Arthur, 159.
2. CONTRIBUTORY NEGLIGENCE. -The return of an experienced miner
to the shaft when an explosion was expected to occur, raises a question
of contributory negligence on his part which should have been submitted
to the jury. Davis v. Graham, 210.
3. SAME. When a minor, knowing that the means of ascending and
descending the shaft in which he is employed are defective and danger-
ous, continues in the employment after the lapse of a reasonable time
for providing safe appliances, he assumes the risk incident to the use of
such defective means, notwithstanding he made complaint and was
promised that the defect would be remedied promptly. Ib.
4. CONTRIBUTORY NEGLIGENCE A QUESTION OF FACT.-Questions of
contributory negligence are for the jury, and are to be determined by
the facts and circumstances of each case. City of Denver v. Soloman,
534.
5. NEGLIGENCE-CONTRIBUTORY NEGLIGENCE. In order to charge
a telegraph company, the loss or injury must be the direct and neces-
sary result of its negligence in transmitting the message, but contribu-
tory negligence of the plaintiff may prevent a recovery. The Western
Union Tel. Co. v. Cornwell, 491.
6. NEGLIGENCE. -Owners of ditches are liable in damages resulting
from their neglect to carefully maintain and keep the embankments of
their ditches in good repair. Catlin Land & C. Co. v. Best, 481.
7. NEGLIGENCE PER SE. The obstruction of a street crossing by rail-
road engines, in violation of an ordinance, constitutes negligence per se
on part of the railroad company. The Denver, Texas & Gulf R. R. Co.
v. Robbins, 313.
8. NEGLIGENCE, WHEN NOT REQUIRED TO BE SHOWN.-It is not neces-
sary in an action under the statute to show negligence on part of the
railroad company in causing the fire. The Union Pacific Ry. Co. v. Ar-
thur, 159.
9. PROXIMATE CAUSE-A TEST.-In determining what is the prox-
imate cause of an injury one of the most valuable of the criteria is to
ascertain whether any new cause has intervened between the fact ac-
complished and the alleged cause. If a new force or power has inter-
vened, of itself sufficient to stand as a cause of the misfortune, the other
must be considered as too remote. The Denver, Texas & Gulf R. R.
Co. v. Robbins, 313.
10. PROXIMATE CAUSE-A QUESTION OF FACT. -Ordinarily the ques-
tion of what was the proximate cause of an injury is one for the jury
and not for the court. Ib.
NEGLIGENCE, CRIMINAL: See CRIMINAL LAW.
1. NEW TRIAL-WHEN GRANTED.-When there is no competent evi-
dence upon which a verdict could have been predicated, and where it
must have been the result of prejudice, it should be set aside. Denver
etc. R. R. Co. v. De Graff, 42.
2. VERDICT UPON CONFLICTING EVIDENCE. -The court will not in-
terfere with the verdict when it appears that it was rendered upon con-
flicting testimony, and it does not appear that the evidence was not fairly
considered by the jury. The Denver, Texas & Fort Worth R. R. Co. v.
Richards, 87.
NONSUIT: See PRACTICE IN CIVIL ACTIONS.
1. CONSTRUCTIVE NOTICE. - A knowledge of facts sufficient to put a
prudent person upon inquiry, is constructive notice of all facts which
might have been ascertained by such inquiry or investigation. Reddin
v. Dunn, 518.
2. PRINCIPAL AND AGENT - NOTICE. -The principal is chargeable
with the information acquired by his agent, whether he obtained it in
the course of the transaction of his principal's business or otherwise,
providing the knowledge is so acquired by him as to be presumptively
within his recollection when he is acting on behalf of the principal.
Hummel v. First Nat. Bank, 571.
1. SALARY PAYABLE TO DE FACTO OFFICER.-Payment to a de facto
officer while he is holding the office and discharging its duties, is a de-
fense to an action brought by the de jure officer to recover the same
salary. Henderson v. Glynn, 303.
2. SALARY-DE FACTO OFFICER ENTITLED TO. - One who holds a
judicial office under a certificate of election issued by the secretary of
state can maintain mandamus against the state auditor to compel the
payment of the salary incident to the office, notwithstanding the fact
that his election is contested in a pending action. Ib.
ORDINANCES: See also MUNICIPAL CORPORATIONS.
1. ORDINANCE-CONSTRUCTION OF.-Under an ordinance providing
no person shall engage in quarreling or fighting, nor shall ask, invite
or defy any other person to fight or quarrel;" held, that a proprietor
of a store had no right to use force to expel from the room one who
refused to depart when ordered so to do. Metcalf v. The People, 262.
3. EVIDENCE-BURDEN OF PROOF.-An objection to the introduc-
tion of an ordinance in evidence on the ground that the "ayes and
nays had not been called upon its passage," must be supported by
proof of such fact, otherwise the objection will not be sustained. Ib.
PARTNERS AND PARTNERSHIP:
1. PARTNER, AUTHORITY OF.-A member of a non-trading firm can-
not, without express authority, bind his copartner by the execution of
a note unless it is necessary to the transaction of the partnership busi-
ness, or there be a custom in that class of business from which the law
implies such authority. Tanner v. Hyde, 443.
2. MINING PARTNERS, LIABILITY OF.- A mining partnership having
existed between the parties, they are legally bound for the debts legiti-
mately contracted by the concern during the time the partnership ex-
isted. Perkins v. Peterson, 242.
1. MECHANICS' LIEN-PARTIES. In an action to foreclose a lien by
a material man or subcontractor, the contractor or original promisor,
against whom a debt must be established as the foundation of a decree,
is an indispensable party. Davis v. The John Mouat L. Co., 381.
2. PRACTICE-PARTIES. - An action on an undertaking in attachment
may be maintained against principal and sureties jointly, without first
obtaining judgment against the principal. Mattler v. Brind, 439.
PATENT: See PUBLIC LAND.
DRAFT, WHEN NOT PAYMENT. - The defendant sent a draft to plain-
tiff, as a payment on account. It was not paid, and plaintiff was guilty
of no laches in his efforts to collect, but returned it within a reasonable
time: Held, that defendant was not entitled to credit for its amount.
Edwards v. Harvey, 109.
1. ALLEGATIONS. -The allegations in a pleading must be positive and
not by way of recital, and must be of facts only and not of law. Rob-
inson v. Dolores Land & C. Co., 17.
2. AMENDMENT. - A complaint which fails to allege the time when the
note sued upon is payable may be amended, and unless such amendment
is prejudicial to or prevents defendant from interposing a proper de-
fense, a continuance of the cause for the purpose of allowing defend-
ant to amend its answer will not be granted.
The Tribune Pub. Co. v.
Hamill, 237.
3. SAME.--Courts are liberal in allowing amendments when the cause
of action is not changed, and where the complaint fails to state when
the note sued on is payable, but the note is overdue, and the maker
knows it to be the note he will be called upon to defend against, an
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