1. The return of the officer levying an attachment and execution
showing that he took possession of certain chattels under the writ,
and had them sold before the trial of an action to determine the
title, is sufficient evidence to sustain a verdict for conversion of
the property, the title to which was shown to be in complainant.
Schluter et al. v. Jacobs, 449.
2. General Statutes, section 2011, provides for summary proceed-
ings to try the right of property, and, if found to be in claimant,
for the assessment of damages by the court or jury, and for costs.
Held, that, having found the property to be in claimant, the court
is authorized to receive evidence as to the value of the property
taken, although no formal issue of value is raised by the plead-
ings. Ib.
1. The relation of stockholders to the corporation whose stock
they hold is that of contract, and the rights and duties of both
parties grow out of contract implied in a subscription for stock,
construed by the provisions of the charter or articles of incor-
poration. Supply Ditch Co. v. Elliott, 327.
2. The corporation is a trustee for its stockholders and is bound
to protect their interests. Ib.
3. Certificates of stock are assignable and pass from hand to hand
by indorsement as bills of exchange and promissory notes pass,
and holders of such certificates are prima facie presumed to be
bona fide owners thereof. Ib.
4. A corporation is ordinarily justified in treating the assignee
and holder of certificates of stock as the legal and equitable owner
thereof. Ib.
5. Any transfer of stock by a corporation upon its books, in the
absence of the original certificate, is made at its peril, and the real
owner of the stock, evidenced by such certificate, loses nothing
thereby upon stock so issued by wrong or mistake the corporation
is liable to a bona fide holder thereof.
6. The granting of a right of way on a street for a railway by a
municipality does not create any liability against the municipality
for the damages occasioned by the corporation exercising the rights
so granted. The liability in such cases is against the corporation
exercising and enjoying the rights so granted. Sorensen v. Town
of Greeley, 369.
7. Section 30 of the Colorado act of March 14, 1877, providing
for the formation of corporations, which provided for service of
summons in suits against them, was repealed by implication by
the act of March 17, 1877, providing "a system of procedure in
civil cases in courts of justice," section 37 establishing a new
method of service. Little Bobtail G. M. Co. v. Lightbourne, 429.
8. Courts have no jurisdiction to appoint a receiver except in a
suit pending in which the receiver is desired. Jones v. Bank of
Leadville, 464.
9. The appointment of a receiver does not dissolve a corporation
either in law or in fact. Ib.
10. The surrender of the franchise of a corporation is not an offi-
cial act, but to be effectual must be the act of the stockholders as
such. Ib.
11. In the absence of equity jurisdiction, properly invoked, the
assets of an insolvent corporation do not constitute a trust fund for
pro rata distribution among all its creditors, nor in such case does
any superior equitable lien exist as against a prior attaching cred-
itor. Ib.
12. 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.
13. Where a complaint in an action for damages avers the mak-
ing 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 rat-
ification amounts merely to a traverse. Ib.
14. 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.
A town which, exceeding its corporate powers, grants permis-
sion to a mining company to build a flume in its streets, does not
thereby become liable for damage done to adjoining premises by
the water leaking_from the flume on to such premises. Town of
Idaho Springs v. Filteau, 105; Same v. Woodward, 104.
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. When a county court by an order grants an unconditional
change of venue, and afterwards, by another order, requires the
party seeking the change to perfect it by paying accrued costs, the
latter order is in effect a mere modification of the former, and is
invalid; the county court having no power to require payment of
costs as a condition precedent. South Pueblo Ñ. P. & P. Co. v.
Moore, 254.
3. The penalty in an appeal bond is not the limit of the liability
of the obligors therein, in an action thereon, but recovery may in-
clude the costs of the suit and damages for the detention of the
debt assumed in the bond. Crane v. Andrews, 265.
1. The cost bond required of non-residents before commencing
suit, if tendered after action brought, even though before the mo-
tion to dismiss is interposed, comes too late. Edgar G. & S. M.
Co. v. Taylor, 110.
2. The right to assign error on the denial of this motion is not
waived by pleading over. Ib.
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.
COUNTY COMMISSIONERS- Continued.
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 equal-
ization 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.
COUNTY SUPERINTENDENT OF SCHOOLS:
1. The statutes vest in the county superintendent of schools a
large discretion as to the services necessary to be performed by
him in the discharge of his official duty. Smith v. Board of Co.
Com'rs Jefferson Co., 17.
2. When he renders to the board of county commissioners an
account of his services and mileage for a month or a quarter of a
year, made out and verified as the law requires, he has established
a prima facie case in his favor. No authority exists to reject any
item or charge upon inspection merely, unless it clearly appears
therefrom that such item is incorrect or illegal. Ib.
3. Courts are not disposed to interfere with the exercise of mere
discretionary authority. Ib.
4. Every reasonable intendment is to be made in favor of the acts
of public officers, who are sworn to perform their official duties cor-
rectly, so long as they appear to be acting in good faith, with due
care and discretion, and within the limits of their conceded powers.
lb.
5. The law does not recognize fractions of days. And when it
provides a per diem compensation for the time necessarily devoted
to the duties of an office, the officer is entitled to his daily compensa-
tion for each day on which it becomes necessary for him to perform
any substantial official service, if he does perform the same, regard-
less of the time occupied in its performance. Ib.
6. Under the statute the accounts of the county superintendent of
schools should be kept in such a manner that the officer may not
only be able to itemize his accounts as required, but to explain them
as well, if called upon to do so. Ib.
COUNTY TREASURER: See ASSESSMENTS, 1, 2, 3.
A county, under a statute authorizing the funding of its floating
indebtedness, by an election conducted in substantial conformity
to the statute, voted to issue bonds as a means of funding such in-
debtedness. Held, that the plaintiff, a holder of county warrants
constituting a part of such floating debt, was entitled, upon tend-
ering his warrants, and refusal on the part of the county com-
missioners to issue to him bonds to the amount of such warrants,
to a mandamus to compel them to do so. Board of County Com'rs
Summit Co. v. People ex rel. Hurlbut, 14.
1. A town which, exceeding its corporate powers, grants per-
mission to a mining company to build a flume in its streets, does
not thereby become liable for damage done to adjoining premises
by the water leaking from the flume on to such premises. Town
of Idaho Springs v. Filteau, 105; Same v. Woodward, 104.
2. The rule is that, for any act obstructing a public and common
right, no private action will lie for damages of the same kind as
those sustained by the public, although in a much greater degree.
Whitsett v. Union D. & R. Co., 243.
3. The penalty in an appeal bond is not the limit of the liability
of the obligors therein, in an action thereon, but recovery may in-
clude the costs of the suit and damages for the detention of the
debt assumed in the bond. Crane v. Andrews, 265.
4. Where it is sought to recover such damages as are not the
usual and natural consequences of the wrongful act complained
of, such damages must be specifically set forth. City of Pueblo v.
Griffin, 366.
5. The granting of a right of way on a street for a railway by a
municipality does not create any liability against the municipality
for the damages occasioned by the corporation exercising the rights
so granted. The liability in such cases is against the corporation
exercising and enjoying the rights so granted. Sorensen v. Town
of Greeley, 369.
6. The municipal authorities of Denver must exercise ordinary
care in keeping the sidewalks free from defects and obstructions,
and liability may ensue from injuries occasioned by failure so to
do. City of Denver v. Dean, 375.
7. An action was brought by an owner of property abutting on
one of the streets of a certain addition to the city of Denver to re-
cover damages for injuries done to his property by a railroad com-
pany in constructing a road and running its trains the length of
the street in front of his premises. Held, that since the injuries
to the property were done after the state constitution went into
effect, its provisions in regard to compensation for the taking or
damaging of private property for public or private use may prop-
erly be invoked in aid of recovery. Denver Circle R. Co. v.
Nestor, 403.
8. The damage to support an estoppel against the owner of an
estate and convert him into a trustee must be something more sub-
stantial than what would technically amount to a consideration in
a contract. It must be of such a character that the person sus-
taining it cannot be put back into his former condition, and cannot
be adequately compensated by pecuniary damages. Stewart v.
Stevens, 440.
DAY: See OFFICES, 2.
DECEDENTS' ESTATES:
The statute (Gen. Laws, §§ 2914, 2915, 2918) prescribes the man-
ner of presenting claims against the estates of deceased persons,
and provides a summary method of establishing such claims upon
notice at any term of the court subsequent to the issuing of letters
testamentary or of administration. Plaintiffs filed their claim
against the estate of defendant's intestate November 17, 1879, on a
cause of action which had accrued January 20, 1877. Prior thereto,
on February 4, 1878, plaintiffs had filed the claim, but withdrew it
March 30, 1878. Held, that the claim was barred by the statute of
limitations as not having been filed within two years after the
cause of action accrued. The filing and withdrawal of the claim
did not constitute the commencement of an action to prevent the
statute of limitations from running. Morse v. Clark, 216.
If, during the existence of a partnership, goods are purchased
and received by it, a declaration by one of the partners after the
transaction, or dissolution of the firm, that he would not be re-
sponsible for the account, does not relieve him from liability.
McDonald v. Clough, 59.
1. Under the Revised Statutes, 1868, page 619, section 5, by the
dedication to the city of Denver of the streets of an addition
thereto, platted in accordance with the provisions of the statute in
force in May, 1876, the said city acquired only a qualified fee
therein, in trust for the public for the ordinary and necessary
purposes to which the streets of a city are usually subjected. Den-
ver Circle R. Co. v. Nestor, 403.
2. The charter of April 7, 1874, of the city of Denver, giving to
the city council power to control its streets, to regulate the construc.
tion and operation of street railways, and the running of locomotive
engines and cars, and the location and construction of railroad
tracks within the city, does not confer upon the council such au-
thority to license the construction of railroad tracks lengthwise of
its streets and thoroughfares generally, as to charge the purchasers
of abutting property with notice that they may be so used by rail-
road companies for the running of their trains, in common with
every other mode of conveyance. Ib.
3. Under the authority of the charter of April 7, 1874, of the city
of Denver, defining the powers of the city council with regard to the
railroads within the city, and Revised Statutes 1868, page 619, sec-
tion 5, limiting the city's title to the streets dedicated to it, to a
qualified fee, the license given by the city council to a railroad
company to construct a track and run its trains lengthwise of
a street of an addition is an appropriation of such street to an
extraordinary use, not within the contemplation of the act of dedica-
tion, nor authorized by any legislative sanction for general applica-
tion throughout the city, and cannot afford immunity from liability
for actual injuries thereby resulting to the property of abutting
owners. Ib.
4. An action was brought by an owner of property abutting on
one of the streets of a certain addition to the city of Denver, to re-
cover damages for injuries done to his property by a railroad com-
pany in constructing a road and running its trains the length of the
street in front of his premises. Held, that since the injuries to the
property were done after the state constitution went into effect, its
provisions in regard to compensation for the taking or damaging of
private property for public or private use may properly be invoked
in aid of recovery. Ib.
1. When a statute is referred to by general descriptive particulars,
some of which are manifestly false and others true, the former may
be rejected as surplusage, provided the remainder is sufficient to
show clearly what is meant. Murray v. Hobson, 66.
2. A deed of land included in a town site described the land as
"designated on the recorded plat as the vacant land formed by
change of the bed of the Arkansas river," and by metes and bounds.
In an action involving the title to the land conveyed, held, that the
whole description was properly admitted in evidence, and that oral
testimony was admissible to identify the land (especially as no tract
designated in the manner stated appeared on the plat), although
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