The objection that the former judgment did not go to the merits is not well taken. The same cause of action was stated, as we have seen, in both cases. Twelve grounds of demurrer were assigned to the amended complaint, some of them going directly to the merits of the action. The demurrer being confessed by the plaintiff, these grounds of demurrer were included, and the judg ment, being likewise by consent, was a judgment upon the merits. "If judgment is rendered for the defendant on demurrer to the declaration, or to a material pleading in chief, the plaintiff can never after maintain against the same defendant or his privies any similar or concurrent action for the same cause, upon the same grounds. as were disclosed in the first declaration; for the reason that the judgment upon such a demurrer determines the merits of the cause, and a final judgment deciding the rights must put an end to the dispute, else the litigation would be endless. Gould v. Railroad Co. 91 U. S. 526. The judgment of the superior court must be affirmed.
ABATEMENT: See PLEADING, 2.
1. A written indorsement upon the back of an order limiting the
conditions of the order, and made before its present issue for ac-
ceptance, constitutes a part of the order. Hughes et al. v. Fisher,
383.
2. A conditional acceptance of an order becomes absolute upon
the happening of the condition. Ib.
3. A. accepted an order drawn by B. for $115, the acceptance
being conditional upon the receipt of money by A. coming to B. The
proof showed that thereafter A. received $2,000. Held, that the
acceptance became absolute, there being no proof to show that
the sum received was exhausted by orders previously accepted. Ib.
4. The promise to pay the debt of another out of moneys when re-
ceived, belonging to that other, but to be paid the promisor, is not
a promise to pay the debt of another within the meaning of the
statute of frauds. Ib.
5. Held, that section 14 of the Civil Code, prior to 1887, related to
practice before justices of the peace, and that under said statute it
was no misjoinder of parties to include the maker and acceptor of
an order as defendants in the same action. Ib.
Proof of an account should be made by producing the books in
which it is entered, or by offering a copy of the account, properly
identified, but the failure so to do may not be fatal to a recovery.
McDonald v. Clough, 59.
1. The forms of actions are abolished, but neither the natural
classification of actions according to substance, nor the distinctions
between the character of actions, are dispensed with. Schroers v.
Fisk, 599.
2. If judgment is rendered for the defendant on demurrer to the
declaration or to any material pleading in chief, the plaintiff can
never after maintain, against the same defendant or his privies, any
similar or concurrent action for the same cause, upon the same
grounds as were disclosed in the first declaration. Ib.
1. The act of an agent outside of the line of his authority is not
binding upon the corporation, but corporate liability may ensue
from the subsequent ratification of the unauthorized act. Hoosac
M. & M. Co. v. Donat, 529.
2. Where a complaint in an action for damages avers the making
of a certain contract by a corporation, it is competent to show
either an original execution with due authority or a subsequent
ratification; and an allegation in the answer that there was no rati-
fication amounts merely to a traverse. Ib.
3. Ratification of an unauthorized contract is often presumed
from the failure of the principal to repudiate within a reasonable
time after notice of its existence; provided, the other party, in
good faith, expends money and labor under it. Ib.
1. It is sufficient to justify the granting of an order upon appli-
cation for alimony pendente lite, that a prima facie case is pre-
sented by the complaint, and that it be made to appear that the
necessities of the wife and the financial ability of the husband
render such order proper and necessary. Cowan v. Cowan, 540.
2. Where an injunction issued enjoining a defendant from in-
cumbering or selling his property on the filing a bill for divorce,
and the injunction remained in force at the time of an application
for temporary alimony, the defendant, in order to avail himself of
the fact as a ground of defense, must set up the fact in his answer
to the petition. An averment that his answer to the original com-
plaint is made part of his answer to the petition is insufficient. Ib.
3. There being no certainty, nor even a promise, that an arrange-
ment for supplies would be continued throughout the litigation, an
order on the subject requiring the defendant to pay a stated sum
monthly for the purchase of the supplies for the plaintiff and her
children, held to be proper and necessary. Ib.
4. On the hearing of a petition for alimony pendente lite, it was
shown that the wife, with her children, occupied the same house
with her husband, but that he slept in a room to himself, did not
eat at the same table, and that they did not cohabit as husband
and wife at the time of the filing of the bill and for many months
previous. Held, this was such an abandonment of the relation as
would entitle the wife to alimony pendente lite. Ib.
5. This court will not interfere with an order allowing temporary
alimony unless it shall appear that there has been a clear abuse
of discretion or a violation of the law by the lower court in the
order made. Ib.
In an action on a promissory note by an indorsee, where the de-
fense was that the interest clause in the note, when delivered to the
payee, read as follows: "With interest at per cent. per
from until paid," and that the indorsee subsequently, without
authority, filled up the blanks so as to make the note read, "With
interest at two per cent. per month from date until paid," held, on
demurrer to the answer, that the delivery of the note with such
blanks did not impart authority in the holder to fill them, and that
such insertions made by the indorsee without the knowledge or
consent of the maker rendered the note void. Hoopes v. Colling-
wood, 107.
1. The payment to a justice of the peace of the cost of granting
an appeal from his judgment within ten days of the rendition of
the judgment is not a condition precedent to the right of appeal.
Carbonate Town Co. v. Ives, 81.
2. Appeals from judgments of justices of the peace in cases of
forcible entry or unlawful detainer lie to the county court. Rey-
nolds v. Larkins, 126.
3. The territorial jurisdiction of justices of the peace in these ac-
tions is co-extensive with their respective counties. Ib.
4. Under the statutes the superior court of Denver has jurisdic
tion in appeals from decisions of justices of the peace in garnish-
ment causes. Welsh v. Noyes, 133.
5. To warrant the execution of an appeal bond by an attorney in
fact, authority therefor, of equal extent with the bond, is necessary,
and should accompany the bond; and, when the authority of the
agent is challenged by motion to dismiss the appeal, it should be pro-
duced; but, under General Statutes, section 1986, the appeal should
not be dismissed because the appellant does not, upon the bond
being declared insufficient, ask leave to file one that is sufficient.
Under such circumstances, the court should enter a rule, to be made
absolute on the appellant's failing to file such bond within a reason-
able time. Schofield v. Felt, 146.
6. Where the appeal bond has been filed and approved, and an
appeal accordingly prayed, within the ten days fixed by General
Statutes, section 1979, the failure to pay to the justice the costs of
the appeal within that time is no ground for dismissing the appeal.
Ib.
7. When the record shows no foundation for the errors assigned
they will be disregarded on appeal. Leach v. Lothian, 439.
An unlimited appearance by counsel for defendant in the county
court, after appeal from a justice, announcing himself ready for
trial, waiving a jury, and permitting a witness to be sworn before
calling attention to his motion to quash the service of process, is a
waiver of any objection under the motion. And the truthfulness
of the record in this court showing these facts cannot be contra-
dicted. D. & R. G. R'y Co. v. Neis, 56.
APPROPRIATION ORDINANCE:
It is not necessary that the annual appropriation ordinance or
bill, required by statute of a city, specify each particular office
and the exact sum to be paid the incumbent thereof. City of Lead-
ville v. Matthews, 125.
1. General Statutes 1883, section 2825, and Session Laws 1885,
page 317, section 1, vest the board of county commissioners with
power almost unlimited to correct any errors that may occur in an
assessment, either before or after the payment of taxes thereon,
and an injunction will not issue to restrain the collection of a tax,
at the suit of a property owner alleging that the assessor himself
had assessed the property, on an excessive valuation, without giv-
ing him an opportunity to make a return. Breeze v. Haley, 5.
2. Where no injury is caused by the delay, the failure of the as-
sessor to complete the assessment for delivery to the county clerk
by June 25th, the date fixed by General Statutes 1883, section 2856,
will not render the tax invalid. Where the assessment was made
out and delivered during the first meeting of the board of equali
zation in July, held to be a substantial compliance with the statute,
Ib.
3. The fact that the weather, feed and market were unfavorable
at the time the treasurer distrained the horses and cattle of the
plaintiff for a tax is no ground for injunction to restrain the sale,
especially when the plaintiff, by his conduct and requests for time,
induced the delay to a season so unfavorable to an advantageous
sale. Ib.
4. Grants of powers to make lccal assessments are strictly con-
strued and must be strictly followed. Keese et al. v. City of Den-
ver, 112.
5. It is a general rule applicable to the corporate authorities of all
municipal bodies, that when the mode in which their power on any
given subject can be exercised is prescribed by the charter, the
mode must be followed. The mode in such cases constitutes the
measure of power. Ib.
6. An assessment under the statute authorizing the cost of sewers
to be levied against property in a district according to area and not
based upon value, benefits or improvements, held to be a valid
assessment under the police power. Ib.
7. An objection that the assessments were not made by the city
assessor as required by the charter, held to be an objection going to
an irregularity that in no way affected the tax-payer. Ib.
1. The keeper of a boarding-house for railroad employees made an
agreement with the railroad company whereby the boarding dues
of each employee were deducted from his pay, and forwarded in
the form of a check to the boarding-house keeper each month. Sub
sequently he procured an advance of money from a bank on the
credit of the amounts which were to fall due on the following pay-
day, and by promising to turn such amounts over to the bank.
The railroad company consented to transfer such payments to the
bank. Held, that this constituted an equitable assignment of such
sums so as to vest title in the bank as against a creditor of the
boarding-house keeper, who garnished the same in the hands of
the railroad company. Chamberlin v. Gilman, 94.
2. Subsequent declarations of the boarding-house keeper indica-
tive of an intention to set apart such sums to the payment of his
debt to plaintiff in garnishment are not admissible in evidence to
impeach the title vested by the prior assignment. Ib.
3. The mere fact that the railroad company, after it had consented
to the transfer of the indebtedness to the bank, continued to draw
its check in favor of the boarding-house keeper, held, not to divest
the bank of the title acquired under the equitable assignment. Ib.
4. Whether the railroad company had notice of such assignment
in no way affects the rights of plaintiff in garnishment, and there-
fore the admission of evidence of such notice is not prejudicial
error. Ib.
5. Such an assignment may be by parol, and is not affected by the
statute of frauds, which require sales and assignments of goods,
and grants or assignments of trusts, to be evidenced in writing. Ib.
6. Where the intervenor in a garnishment claims title through an
equitable assignment of the fund, based, in addition to other evi-
dence, upon verbal declarations and conduct, it is not error to refuse
an instruction which assumes that the intervenor's title depends
solely upon a written order. Ib.
Defendant in an attachment suit objected to the jurisdiction of
the county court, on the grounds that the justice, before whom the
case was first tried, did not cause notice of the suit to be published
as required by law; and that the constable did not retain the sum-
mons put into his hands for serving until the date of the trial. Held,
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