bear to him affiant is not advised, and neither does he know of any relative of his residing in the state of Colorado. Tony P. Michael." On March 9th the following was handed to the clerk, and by him filed: "The defendants, except Frank Deihm, come and move the court herein to open up and set aside the judgment and order made in this case, for the reason following, to wit: At the date of making the orders and rendering the judgment the defendant Frank Deihm was deceased, had departed this life long prior thereto; second, for reason set forth in affidavit herewith filed. A. J. Sterling, Attorney for Defendants." Then follows: "There being no other or further evidence or testimony offered or introduced by either plaintiff or defendants in support of or against said motion, but this being all and the only testimony or evidence introduced or produced by either party hereto, the motion was submitted to the court on the same, and the court thereupon denied the same; to which ruling of the court the defendants excepted." This is made a second bill of exceptions. The sheriff's return shows that he served Mater, Menser, and Tony P. Michael. Rogers, Griffiths, Deihm, and H. W. Michael not found. On February 7th all the defendants named in the complaint appeared, and made answer, by A. J. Sterling, their attorney. How many were dead and how many living at, that time we have no means of knowing, but a month later the affidavit of Michael is filed, and the motion of. Sterling, the attorney, attempting to show that Deihm had been dead about six years when his appearance was entered by his attorney. The court very properly denied the motion. If his death was a fact, it should have properly appeared at the time the answer was made. Counsel cannot enter the appearance of a dead client, and impose upon court and plaintiff until after judgment, and then avail themselves of the fact of death to set aside the entire judgment. Again, the affidavit of Michael was too vague and uncertain to establish the fact of any death whatever. Although six years had expired, no action had been taken, no administration of his estate had, and it seems no action had been taken by his partners, and that he still remained a partner. A person who can remain a partner for that length of time after death should make an equally good defendant in connection with his copartners, especially where such copartners, through their attorney, enter his appearance as living. No error sufficiently serious to warrant a reversal appears in the record. Several good reasons could be given why the defense of Michael should not have prevailed. If such contract existed, he had ample time and opportunity to enforce it against Howie while living. It is not shown whether the estate of Howie was solvent or insolvent; if the latter, he should not take

advantage of the circumstances to collect his debt in full at the expense of others. The sum involved may have been the only available fund to supply the wants of a widow and children. Whether such was the fact or not, the claim should have been paid to the administrator, and the claim of Michael taken its place with others, unless a clearly established exception was shown to take it out of the ordinary course. The judgment of the district court will be affirmed. Affirmed.

(6 Colo. App. 47)

MCCLELLAND v. PHILLIPS. (Court of Appeals of Colorado. March 11, 1895.)

NOTICE OF PENDING SUIT.

A chattel mortgagee of a growing crop is not chargeable in law with notice of a pending action for divorce against the mortgagor, in which the plaintiff claims the crops on the ground that, although belonging to her husband, they were planted and cared for by her.

Error to district court, Pueblo county.

Action by Elizabeth Phillips against Andrew McClelland. From a judgment for plaintiff, defendant brings error. Reversed.

Reeve & Low and Galligan, Deasy & Higgins, for plaintiff in error.

THOMSON, J. Action by Elizabeth Phillips for the unlawful, wrongful, and forcible taking and carrying away by the defendant of one wagon and a quantity of potatoes, alleged to be her property and in her possession. Judgment for plaintiff, from which defendant appeals.

On June 19, 1891, the plaintiff commenced her action against her husband, John P. Phillips, for a divorce. In her complaint she alleged the pre-emption of certain lands by her husband, and prayed that the improvements and growing crops upon the lands be set apart to her. On the 14th day of September following she filed her amended complaint, in which she averred that the crops, although belonging to her husband, had been planted and cared for by her, and prayed that they be allowed and set apart to her. At the hearing the divorce was granted as prayed, and the crops given and allowed to her. The decree was rendered October 8, 1891. On September 15, 1891, John P. Phillips executed to the defendant in this case a chattel mortgage of the wagon mentioned in the complaint and 14 acres of potatoes growing upon the lands pre-empted by Phillips, to secure the payment of a note made by him to the defendant for $100. These potatoes were part of the crops mentioned in the complaint for divorce, and were the same potatoes for the taking of which by the defendant this action was brought. The note was given for a bona fide indebtedness owed by Phillips to the defendant. At the time of the execution of the mortgage

the defendant had no notice of the pendency of the divorce proceedings. The evidence was somewhat conflicting as to the ownership of the wagon. The jury were correctly instructed upon that question, and, if nothing more than the wagon had been involved in the controversy, we should unhesitatingly affirm the judgment. But in regard to the potatoes the court gave the following instruction: "First, in reference to the title of the potatoes, the court instructs the jury that under the pleadings and decree rendered in the county court, of which the defendant, McClelland, was charged in law with notice, the title of the potatoes passed under that decree to the plaintiff in this action, and for such potatoes the jury will ascertain the market value, and return a verdict for the plaintiff, if they find, from the evidence, the same were taken by the defendant." There is nothing in the pleadings, evidence, or law to warrant this instruction. The defendant was not charged in law with notice of the pendency of the divorce proceedings simply in virtue of the fact that they were pending, and he had no other notice. He could not be charged with notice of the decree, because it had not yet been rendered. There was no source of information open to the jury concerning the ownership of the potatoes, except the testimony of the witnesses at the trial, and that testimony they were not permitted to consider. The instruction was erroneous, and the judgment will be reversed. Reversed.

LIMITATION OF ACTION-SUIT TO SET ASIDE FRAUDULENT CONVEYANCE.

1. An action to set aside alleged fraudulent conveyances of land, not brought until four years after discovery of the fraud, is barred, under Gen. St. 1883, § 2174, limiting the time for bringing such an action to three years, where a judgment previously recovered by plaintiff on the same cause of action was reversed on appeal, and the new action was not commenced within one year thereafter, as required by section 2180.

2. The year allowed by Gen. St. 1883, § 2180, for beginning a second action after the reversal of a judgment on writ of error, commences at the date of reversal, and not of the dismissal of the first action in the lower court. Appeal from district court, Boulder county. Action by Henry N. Coffey against Anthony Arnett and Mary Arnett. From a judgment for plaintiff, defendants appeal. Reversed. J. R. Zuver, for appellants. Adams & Adams and H. C. Henderson, for appellee.

THOMSON, J. On the 19th day of January, 1889, appellee brought his suit against the appellants to set aside certain conveyances of real estate made by the defendant Anthony Arnett to the defendant Mary Arnett,

who was his wife, and subject the land to the payment of a judgment previously recovered by the plaintiff against the defendant Anthony Arnett, on the ground that the conveyances were without consideration, and were made for the purpose of defrauding Anthony's creditors, and particularly the plaintiff. It was averred in the complaint that the facts constituting the fraud complained of first came to the plaintiff's knowledge in the month of November, 1888. The suit resulted in a decree in accordance with the prayer of the complaint, from which decree the defendants appealed to this court, where such proceedings were had that on the 23d day of June, 1891, the decree was reversed, and the cause remanded to the trial court for further proceedings. Arnett v. Coffey, 1 Colo. App. 34, 27 Pac. 614. One of the grounds of reversal was that the plaintiff had not perfected his right of action by making his judgment against Anthony Arnett a lien upon the property in the manner provided by the statute, or taken the requisite steps otherwise to entitle him to maintain the suit. After the judgment of reversal, for the purpose of conforming to the decision of this court, and in pursuance of the statute, he caused to be filed and recorded in the office of the county recorder a transcript of his judgment against Anthony Arnett; and afterwards, on the 8th day of April, 1892, he dismissed the cause. This new action was commenced on the 12th day of September, 1892. The complaint is the same as that in the former case, except that it contains the additional averments required by the decision of this court. The defendants answered that the cause of action did not accrue within three years before the commencement of this suit, and that this suit was not brought within one year after the reversal by this court of the decree in the former case. The plaintiff proved that he acquired his knowledge of the facts constituting the alleged fraud at the time stated in his complaint, and the defendant introduced in evidence a copy of the judgment of reversal of the former decree by this court, with the certificate of the clerk that it was entered on the 23d day of June, 1891. After hearing the evidence, the court found for the plaintiff, and ordered the entry of a decree setting aside the conveyances as prayed in the complaint. The defendants moved for a new trial on the grounds that the finding was against the evidence, and that it was against the law, but the motion was overruled. The judgment against the defendants was then entered. The defendants appeal, and assign for error the overruling of the motion for a new trial, and the rendition of the decree.

The following is section 2174 of the General Statutes of 1883: "Bills for relief on the ground of fraud, shall be filed within three years after the discovery by the aggrieved party, of the facts constituting the fraud, and not afterwards." And section 2180 is as follows: "If in any action duly commenced with

ty commissioners of the county in which his district may lie, which board shall allow the same; or, if the district is embraced in more than one county, then the account must be presented to the boards of commissioners of the several counties, and each board shall pay its pro rata share. 1 Mills' Ann. St. §§ 2381-2383, 2387.

The appointment having been made, and the plaintiff having qualified and entered upon the discharge of his duties under it, the presumption is conclusive in this case that all the conditions authorizing the appointment existed, and that it was made in exact conformity with the law. The same character of presumption attends the act of the governor in fixing the amount of the bond, and every other act of his connected with the appointment. Chapter 27 of the Code provides the only method of procedure by which the title to an office can be tried. It cannot be inquired into in a collateral proceeding. See Henderson v. Glynn, 2 Colo. App. 303, 30 Pac. 265. The effect of the defendant's answer was to admit the entire cause of action, and the plaintiff was entitled to judgment, upon the pleadings as they originally stood, for the full amount of his claim; but upon filing his amendment, showing that a portion of his district extended into Otero county, he became entitled, as against the defendant, only to its share of the sum total, and this was the judgment of the court. Evidence of any kind was unnecessary, and what was introduced was immaterial. The judgment will be affirmed. Affirmed.

(6 Colo. App. 127)

HENDRIX et al. v. GILLETT et al. 1 (Court of Appeals of Colorado. Jan. 14, 1895.) EXPERT WITNESSES-PROOF OF HANDWRITING.

A county treasurer, who has also been a banker, and bankers of several years' experience, are qualified to testify as experts as to whether two capital letters, claimed to have been the initials of the name of the payee of a note, have been altered.

Appeal from district court, Phillips county.

Action by Gillett Bros. against Hendrix Bros. From a judgment for plaintiffs, defendants appeal. Affirmed.

W. D. Kelsey, for appellants. P. J. Dempster, for appellees.

THOMSON, J. This is a suit upon a promissory note purporting to have been made by the appellants to M. N. Spahr, and by him indorsed to the appellees. The only defense is a denial of the execution of the

1 Rehearing denied March 11, 1895.

note. The appellants admitted the genuine ness of their signatures to the paper, but claimed that the note was given to A. A. Spahr, and that, after its execution and delivery, it was altered by changing the initials of the payee from A. A. to M. N., thus substituting for the person to whom the note was made payable another and different person. The alteration as charged was not made by erasing the original initials and substituting the others, but by adding to the first A the marks or lines necessary to make it an M, and in the same manner converting the second A into an N. The transaction in which the note was given was had with A. A. Spahr. The positive testimony of each of the appellants to the change alleged was met by the equally positive counter testimony of A. A. Spahr that the note had never been altered, but was written by himself, payable to M. N. Spahr, exactly as it then appeared. R. E. Webster and George E. Clark, bankers of several years' experience, testified that in the course of their business it was necessary for them frequently to inspect notes, checks, drafts, and other like instruments, and to examine signatures. E. N. McPherrin, county treasurer, and formerly a banker, testified that the business of his office required the examination of writings and signatures. All these witnesses, testifying from their familiarity with writings and instruments of various kinds, stated that in their opinion no alteration had been made in the note. Objection is made that these witnesses did not show themselves qualified as experts to testify concerning the integrity of the note. There was no question which required familiarity with any particular handwriting. It was sought only to ascertain whether two capital A's had been converted, one into a capital M, and the other into a capital N. To accomplish the change the cross lines in the A's must have been erased, and other necessary lines added. If the business in which the witnesses were, and for some time had been, engaged, and the necessity on their part of examining instruments and scrutinizing their appearance, in order to the proper transaction of their business, did not qualify them to testify upon a question like this, we are at a loss to conceive what kind of experience or education would be required to render them competent. The defendants testified in their own behalf, but they made no claim that they did not owe the note, or that the debt which it evidenced was not just; so that there was no question in the case except that of the alleged alteration. Under proper instructions by the court, the jury found for the plaintiffs, and the judgment which was entered upon the verdict was right, and will be affirmed. Affirmed.

(6 Colo. App. 64)

UNION PAC. R. CO. v. BULLIS. (Court of Appeals of Colorado.

1895.)

-

March 11,

RAILROAD COMPANY LIABILITY FOR CATTLE KILLED-CONSTITUTIONALITY OF LAW.

1. Gen. St. c. 93. §§ 13, 14, as amended by Sess. Laws 1885, p. 304, and Sess. Laws 1891, p. 281, making a railroad company absolutely liable for animals killed on its track, and fixing an arbitrary schedule of the price of certain animals so killed, and providing for the fixing of the value of other animals by appraisers without allowing proof of actual value, are unconstitutional, as denying a railroad company the equal protection of the laws, and depriving it of its property without due process of law.

2. The mere fact that a cow was found dead close to a railroad track does not show that it was killed by a railroad train, so as to authorize a recovery against the company.

Error to Arapahoe county court.

Action by George Bullis against the Union Pacific Railroad Company. From a judgment of the county court affirming a judgment of a justice court for plaintiff, defendant brings error. Reversed.

Teller, Orahood & Morgan, for plaintiff in error. Wm. H. Andrew, for defendant in

error.

REED, J. Defendant in error brought suit before a justice of the peace to recover the value of a cow alleged to have been killed by an engine of plaintiff. A trial was had. Judgment for the plaintiff for $45. An ap

peal was taken to the county court, where a trial was had with same result, and judgment for the same sum. The suit was brought and adjudicated under the "stockkilling" statute (Gen. St. c. 93, §§ 13, 14, and amendments; Sess. Laws 1885, p. 304, and Sess. Laws 1891, p. 281).

The owner of the cow was the only witness sworn. He testified: On the 24th of May, 1893, he was the owner of the cow. That she was worth $45. That about 2 o'clock on the afternoon of that day he found her dead, in close proximity to the railroad track of defendant. The section men were digging a hole to bury her. He told them it was his cow. They did not know whose it was. "It seemed to be killed by the railroad, and they were going to bury it." "The section men did not know how she was killed." Witness did not show that he did.

That was the entire evidence in regard to the death of the animal. Even if the statute under which the action was brought had been held valid, no recovery could have been had on that evidence. The finding a cow dead in the vicinity of a railroad was not conclusive of the cause of death. The killing by the train must have been established. Presumption could not take the place of legal proof. The court charged the jury, first: "This is an action brought for the killing of a cow, wherein the proof is as to the value only." If such were the fact, and it seems to have been, the court erred v.39P.no.8-57

in refusing a nonsuit. The killing by the engine the first and most important fact to be found-was not proved, hence there was no cause of action; but, notwithstanding the statement in the first sentence in the next paragraph, the court continues, "If you believe from the evidence that the defendant company killed the cow," etc. If the value was the only fact proved, it was error to allow the jury to guess or speculate in regard to the cause of death, and base a verdict upon a presumption of fact. If there was no other and controlling reason for reversal, those above given would be sufficient. The statute under which the action was brought has been held unconstitutional by both the supreme and this court, as being arbitrary, and precluding the company from interposing any defense, subjecting it to judgment without a trial or an opportunity to exonerate itself, withdrawing railroad companies from the benefit of laws that protect other individuals or persons. See Railway Co. v. Outcalt, 2 Colo. App. 395, 31 Pac. 177; Railway Co. v. Vaughn, 3 Colo. App. 465, 34 Pac. 264; Wadsworth v. Railway Co., 18 Colo. 600, 33 Pac. 515. The judgment will be reversed, and plaintiff will have leave to proceed as at common law, if he so elects. versed.

Re

(6 Colo. App. 40) COLORADO FUEL & IRON CO. v. BLAIR. (Court of Appeals of Colorado. March 11, 1895.)

ATTACHMENT PROCEEDING WANT OF JURISDICTION-APPEARANCE ON APPEAL-EFFECT-LOST PAPERS-PRESUMPTION AS TO REGULARITY.

1. Where a justice of the peace fails to acquire jurisdiction in an attachment proceeding on account of irregularity in the papers, an appearance by the defendant or garnishee in the county court on appeal will not confer jurisdic tion upon that court in the attachment and garnishment proceedings.

2. Where the papers in attachment proceedings have been lost, an affidavit of counsel that substituted papers were correct copies of the original will, if the copies are irregular, preclude any presumption of the regularity of the originals.

Appeal from Pueblo county court.

Action by F. W. Blair against C. H. Forbes, the Colorado Fuel & Iron Company, garnishee. There was a judgment of the justice court for defendant, and the garnishee was discharged, and from a judgment of the county court for plaintiff against garnishee the garnishee appeals. Reversed.

D. C. Beaman and J. M. Waldron, for appellant. Dixon & Dixon and R. A. Druley, for appellee.

REED, J. On the 17th of May, 1893, appellee brought suit against one C. H. Forbes to recover the sum of $82, before one T. A. Bradford, a justice of the peace. An attempt was made to sue out an attachment, and service of a supposed garnishment process was made upon the appellant. It an