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cumstances, such funds shall be paid out, unless it be in those cases where fixed rights are conferred by statute. In and of itself this fact should be decisive of the present inquiry. Wherever a broad, universal, and sweeping power is thus given to a governing body, it cannot be conceded that by implication any other body, whether it be a court or one resembling the board of county commissioners, should likewise have power to dispose of the public revenues.” We cannot perceive that the treasurer is clothed with the power to pass on the legality of the action of the governing body of the county. Power to determine the validity of all claims against the governmental division is intrusted to the board. When they have audited and allowed a claim, and a warrant is issued in accordance with their determination, we cannot see that the statute has clothed the treasurer with the supervisory power to determine the validity of their acts. We therefore conclude the appellee proceeded in a proper manner to enforce his rights, and that the treasurer set up nothing which was a defense to the proceeding. The judgment of the district court will therefore be affirmed. Affirmed.

(6 Colo. App. 80) PEOPLE ex rel. PRISK V. ALLISON et al. (Court of Appeals of Colorado. March 11,


ConstABLE'S SCRETIES. 1. A warrant for the arrest of some unnamed person is void unless it contains such a descriptio personae as will supply the lack of the name by which the accused is known.

2. Where a constable has arrested one under a void process, the sureties who have undertaken for his faithful performance of official duties are not liable.

Appeal from district court, Arapahoe county.

Action, upon the relation of William J. Prisk, for his use and benefit, against Joseph Allison, constable, and the sureties on his bond, for malicious arrest. From a judgment for plaintiff, defendants appeal. Reversed.

This litigation proceeds from the acts of Joseph Allison, a constable, in the arrest of the appellee, Prisk, in March, 1992. There was some trouble at a schoolhouse on Cheltenhan Heights, and in the mêlée one Scott appears to have been considerably bruised and beaten. After the affray, a complaint was filed with the justice, charging divers persons (names unknown) with committing the misdemeanor. The complaint is not in the abstract, but we assume it was sufficiently definite and specific to authorize the justice to act under it. Whether this be or be not true, the justice did issue a warrant in the following terms: “Whereas, John A. Scott hath this day made complaint on oath before A. K. Minton, Esquire, one of the justices of the peace of said county, that

on or about the thirteenth day of March, 1892, R. Doe, John Doe, and Sam Doe did unlawfully assault, beat, strike, and bruise the body of the affiant (other name unknown): We, therefore, command you forthwith to take the said R. Doe, John Doe, and Sam Doe (their real names unknown), and bring them forthwith before the said A. K. Minton, Esquire, or, in case of his absence, before any other justice of the peace of sáid county, to be dealt with according to law. Hereof fail not at your peril.” This warrant was delivered to the constable by the justice. It contained no information respecting the personality of the alleged guilty parties. Acting under the instructions of the magistrate, the constable took two persons with him, and went to Prisk's house, and there attempted to arrest several persons, who were identified by one of his posse as the individuals wanted. The circumstances of the arrest were detailed at some length by the witnesses, and they might furnish proper matter for consideration on the question of exemplary damages if that was essential to the disposition of the suit. The complexion of the case overrules all necessity to make more than a passing reference to these facts. Prisk, with the others, was taken before the justice, detained for an hour or two, found not to be the person wanted, and accordingly discharged. As constable, Allison executed, under the statute, with the two sureties who were joined as defendants with him in this action, a bond conditioned for the faithful performance of the duties of his office, and their execution, without fraud, deceit, or oppression. The plaintiff alleged these various matters, stated the bond, assigned the acts as a breach, and prayed judgment accordingly. On the conclusion of the testimony, the court charged the jury, among other things, that if the jury believed, from the evidence, the constable acted maliciously and oppressively, they might award the plaintiff, not only the actual damages which he had sustained, but such other sum as punitive damages as, in their judgment, would serve to deter other officers from like acts, and be an adequate solace for the officer's disregard of the plaintiff's rights. The court told the jury the warrant was void, being without a description of the persons accused of the crime, and that consequently the plaintiff had a right of action against both the sureties and the constable for his acts. Acting under these instructions, the jury found for the plaintiff, and judgment was entered on the verdict. From it the defendants appealed.

W. D. Wright, for appellants. Talbot & Denison and Frank I. Willsea, for appellee.

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fact, although there are several collateral 415; State v. McDonough, 9 Mo. App. 63. matters which, as they view the law, tend To overcome the force of these decisions, to support their contention. The terms of the appellee cites a great many cases in their suretyship, doubtless, laid on them a which the sureties have been held liable for responsibility for the negligent or wrongful the acts of the officer in the levy of his writ performance by the constable of the duties on the property of B. when the process only of his oflice. This they concede, but assert ran against A. Of these, People v. Lucas, that, in order to render them liable, it must 93 N. Y. 585, and Lammon v. Feusier, 111 appear that the acts of the officer were with- U. S. 17, 4 Sup. Ct. 286, are sufficient ex: in the scope of his duties, and done while amples. There was long a diversity of opinengaged in the performance of an official ion among the courts in regard to the propact, authorized by the law, or by some pro- osition, but the weight of authority seems cess issued by competent authority. As the now to be that, since the officer, in a case of next step in the chain, the sureties maintain this kind, acts under a valid and legal prothat the warrant which the officer had was cess, the sureties shall be held for the tor. void, and gave him no actual or apparent tious execution of his writ. We do not unlegal authority to arrest the appellee. This dertake to state our opinion respecting this is true. We are aware of no provision of proposition, and we have only referred to it the statute, and counsel has called none to as the basis of the appellee's contention. our attention, which permits process to is- Their point is that since, in such cases, the sue against an unnamed person, or against sureties are made responsible, they ought one who, if unnamed, is not sufficiently likewise to be held in the present case, beidentified and described in the warrant to cause the constable assumed to act under a permit it to be said that it runs against a warrant issued by competent legal authority. particular person. It has always been the We do not regard the cases as at all analolaw that process might go against a person gous, nor the principle, if correct, applicable whose name was unknown, provided it con- to this case. The fundamental difficulty with tained such a descriptio personae as might the appellee's position is that, when Allison supply the place of the name by which the undertook to arrest Prisk with the warrant, accused person was known. Com. v. Crot- he occupied no other or better position than ty, 92 Mass. 403; Alford v. State, 8 Tex. would any person who was not an officer App. 515; Scheer v. Keown, 29 Wis. 586; with a blank piece of paper. That it was Melvin v. Fisher, 8 N. H. 406; Colter 1. in the form of a writ, and signed by a magLower, 35 Ind. 285. Tested by these prin- istrate, did not clothe the constable with ciples, the warrant under which the con- the right to arrest anybody. It was a tresstable assumed to act was absolutely void. pass, not committed in the execution of the It gave him no authority whatever to ar- duties of his office, and the sureties cannot rest Prisk or anybody else. All his acts therefore be held. under it were trespasses, for which he was The appellants put considerable stress upand is most undoubtedly responsible. It is on what they insist was the error of the this conclusion which relieves the sureties of court in charging the jury that they, as sure any responsibility in the premises. The con- ties, were liable to respond for the exemstable's acts were not performed by him plary damages which the court charged the while engaged in the discharge of the duties plaintiff might recover for the wrongful acts of his otiice, nor was the arrest of the plain- of the officer. Whether sureties can ever tiff in any sense a breach of the obligation be held liable under such circumstances is into which the sureties had entered. Be- a difficult question, which we need not detering without a legal process, he had no offi- mine, because on the main proposition the cial functions to perform, and no duty to ex- sureties are released. It need only be sugecute. It is somewhat singular that, in the gested that what is essential to the recovery multitude of suits which have been brought of such damages against the defendant has on the bonds of constables, sheriffs, and been pretty well settled by two cases in the similar peace officers, there have been so few state: French v. Deane, 19 Colo. 504, 36 Pac. cases where there has been an attempt un- 609; Eisenhart v. Ordean, 3 Colo. App. 162, der similar circumstances to hold the sure- 32 Pac. 495. There is no difficulty in apties liable for the trespasses of the officer. plying the law, and the trial court is not likeThe industry of counsel and some little re- ly to fall into error on this proposition. We search on the part of the court have brought may, however, be permitted to suggest that to light but few wherein the question has the pleading seems to us a little inartistic been considered. There is no dissent among with reference to this subject. If the plainthe authorities, and they all concur in the tiff is bound to prove the facts which conconclusion that for trespasses of this descrip- stitute the malice or show the reckless distion, where the officer acts without either ac- regard of the others' rights essential to the tual or apparent legal authority, a surety recovery of punitive damages, it must be who undertakes for the faithful performance true that his complaint should contain an of the official duties of the officer cannot apt and sufficient allegation to permit the be made responsible. McLendon v. State introduction of evidence on this subject. (Tenn.) 22 S. W. 201; State v. Long, 8 Ired. While we do not directly decide the com:

This is an action brought by the plaintie 21), as the writer of this opinion noted in

plaint to be so far subject to criticism that leads us to the opinion, with deference to a verdict under it would not be sustained, the distinguished courts that have held the we thing a slight amendment in this par- contrary doctrine, that this court, in this reticular might be expedient. The judgment spect, is with the majority of opinion and must be reversed, and the case remanded adjudication. Mr. Beach, in his work on for a new trial. The district court will per- Contributory Negligence, says (section 157) mit the plaintiff to amend his complaint as that it is a rule that contributory negligence he may be advised in the particular suggest- is a matter of defense in the states of Alaed, should he desire to continue the litiga- bama, California, Georgia, Kentucky, Kantion. Reversed.

sas, Maryland, Minnesota, Missouri, New Hampshire, New Jersey, Nebraska, Ohio, Pennsylvania, Rhode Island, South Carolina,

Texas, Wisconsin, West Virginia, Vermont, (16 Mont. 21)

and Colorado, and in England and the UnitNELSON v. CITY OF HELENA.

ed States supreme court. To this list, Shear

man and Redfield add Arizona, Oregon, and (Supreme Court of Montana. April 8, 1895.)

Dakota. As above noticed, Montana belongs' CONTRIBUTORY NEGLIGENCE - BURDEN OF PROOF.

in the same category. See, also, the collecIn an action for injuries, contributory tion of cases holding the two different rules, negligence is a matter of defense, and the plain

as found in 2 Thomp. Trials, § 1679. That tiff is not required to prove its absence, as a part of his case.

author names the following courts as op

posed to the rule which has been adopted in Appeal from district court, Lewis and

Montana: Massachusetts, Maine, Iowa, MisClarke county; H. R. Buck, Judge.

sissippi, Michigan, and Indiana. There is a Action by Harold H. Nelson against the corollary, rather than an exception, to this city of Helena. Judgment for defendant, rule (Kennon v. Gilmer, 4 Mont. 433, 2 Pac. and plaintiff appeals. Reversed.

some remarks made in the case of Wall v. to recover damages for personal injuries sus- Railway Co., 12 Mont. 44, 29 Pac. 721, the tained by reason of his falling upon one of corollary being to the effect that whenever the sidewalks of defendant, it being alleged the plaintiff's own case raises a presumption that the injury occurred by reason of the of contributory negligence the burden of defendant's negligence in allowing ice to ac- proof is immediately upon him. In such a cumulate upon said sidewalk. Upon a trial case it devolves upon the plaintiff, as of to a jury a verdict was rendered, and judg- course, to clear himself of the suspicion of ment entered in favor of defendant. The negligence that he has himself created. He plaintiff appeals from the judgment, and must make out his case in full, and where from an order denying a new trial. Among the circumstances attending the injury were other instructions, the court gave the follow- . such as to raise a presumption against him, ing: “The injury sustained by plaintiff is ad- in respect to the exercise of due care, the mitted, but before he can recover he must law requires him to establish affirmatively prove that it resulted from negligence on the his freedom from contributory fault. Beach, part of defendant, and without negligence Contrib. Neg. $ 157. But the corollary is not on his own part directly and immediately of application in the case at bar. In this contributing to the accident." The giving case the jury found for the defendant, but of this instruction is assigned as error. we do not know whether their verdict pro

ceeded upon the ground that they believed T. E. Crutcher, for appellant. Stephen

from the evidence that the defendant was Carpenter, City Atty., for respondent.

not guilty of negligence, or that they be

lieved from the evidence that the plaintiff DE WITT, J. (after stating the facts). It had not proved himself free from contribuis the law of this jurisdiction that, in actions tory negligence. The court, by its instrucfor damages for personal injuries, contrib- tion, told the jury that, in order to find for utory negligence is a matter of defense, and the plaintiff, he must prove that he himself that the absence of contributory negligence was free from contributory negligence. For is not required to be proved by plaintiff, as all we know now, the jury may have found part of his case. There is some diversity that the plaintiff had not proven himself free among courts of last resort as to whether from contributory negligence. The action contributory negligence is a matter of de- of the court in this instruction cast upon the fense, or whether plaintiff should allege and plaintiff a burden of proof which he is not prove himself to be free from such contribu- required, in this jurisdiction, to assume. tory negligence. But that question has been There are some other assignments of error long at rest in this court. It is the doctrine made by the appellant, none of which, howof this jurisdiction that contributory negli- ever, we think, are well taken, otherwise gence is a matter of defense, and that plain- than as to the instruction which we have tiff need not allege or prove its absence. held to be bad. We are of opinion that the Higley v. Gilmer, 3 Mont. 97. Our examina- case was otherwise properly tried and subtion of the decisions and the text writers mitted to the jury. For this error the judg


ment is reversed, and the case is remanded fendants to throw a doubt upon the genuine for a new trial. Reversed.

ness of the handwriting of the letters of the

firm to plaintiff, but the jury and the district PEMBERTON, C. J., and HUNT, J., con- court believed the plaintiff. We are satisfied

ourselves that the evidence was amply sufficient to warrant the verdict of the jury. The

law applicable to the case is that, the plaintiff (15 Mont. 552)

having consigned the potatoes by the bill of HERBERT v. WINTERS et al.

lading to the defendants, as consignees, and (Supreme Court of Montana. March 25, 1895.) having transmitted the bill of lading to the Sale-DELIVERY.

defendants, as consignees, and the defendants Where plaintiff consigned potatoes to de- having received and accepted the potatoes fendants by bill of lading, and defenılants pre- without objection until some time later on, sented the bill to the carrier, received the potatoes, and afterwards admitted an indebtedness

and having admitted an indebtedness for the for them, the sale and delivery are complete. consignment, there was a complete sale and Appeal from district court, Silver Bow coun

delivery, and the defendants are responsible ty; John J. McHatton, Judge.

to the plaintiff for the price of the potatoes. Action by Artbur Herbert against W. H.

Bank v. McAndrews, 5 Mont. 323, 5 Pac. 879; Winters and Louis Bade. The action was

Id., 7 Mont. 150, 14 Pac. 763; Walsb v. Blake for $188.20, amount due for one car of po

ly, 6 Mont. 194, 9 Pac. 809; Mercantile Co. tatoes sold and delivered to defendants. De

v. Fussy, 15 Mont. 39 Pac. 738; Hutch. fendants denied the sale and delivery, and

Carr. $ 135; Craig v. Marx, 65 Tex. 619. We the value of the potatoes. There was a ver

find no error in the record. The order overdict and judgment for plaintiff. Defendants' ruling the motion for a new trial and the motion for new trial was overruled, and they judgment are atfirmed. Afirmed. appeal. Affirmed.

DE WITT, J., concurs. C. P. Connelly, fór appellants.


HUNT, J. The contention of the defend.

(15 Mont. 582) ants is that the evidence failed to show that

JENSEN V. BARBOUR. there was an order given by the defendants,

(Supreme Court of Montana. April 8, 1895.) or their agents, to the plaintiff, for the pota

NEGLIGENCE OF SERVANT-INDEPENDENT Coxtoes in question, or that there was an absolute sale, but that the evidence proves that the

1. In an action for injuries, evidence that potatoes were delivered to defendants by defendant's servant, driver of a horse car, per plaintiff in the usual course of trade, and that

mitted a boy five years old to ride on the front there was a general understanding between

platform of the car, from which he was thrown

and injured, was sufficient proof of the defendplaintiff and defendants that the potatoes ant's negligence to go to the jury. were to be disposed of by the defendants on 2. A person employed by the agent of the commission only, and to the best advantage.

owner of a street railway, at a stipulated sum

per month, to run a car and furnish a driver, the It appears that about August, 1891, plainti ir

car and the road being controlled and the work sold a car load of potatoes to defendants, at directed by the agent, is not an independent con$1.15 per hundredweight, less the freight, on tractor; and the owner is liable for the neglithe order of D. Hanley & Co., Helena, by ono

gence of such employé's servants. Altmeyer. Plaintiff shipped the potatoes, and Appeal from district court, Cascade county; advised defendants of the shipment, trans- C. H. Benton, Judge. mitted the bill of lading, and received letters Action by Walter H. Jensen, by S. R. Jenfrom defendants acknowledging the receipt of sen, as his guardian ad litem, against A. K. the potatoes. One letter objected to the size Barbour personally and as trustee. Judg. of the potatoes, and asked plaintiff for a re

ment for defendant, and plaintiff appeals. duction on the car load, but stated that they Reversed. would give Mr. Altmeyer an order for an- F. C. Parks, for appellant. Ed. L. Bishop other car load, if sales would justify it, and and Ashburn K. Barbour, for respondent. that defendants would want about two car loads a week. Plaintiff subsequently saw one DE WITT, J. Plaintiff's complaint is for of the defendants in Butte and demanded his damages for personal injuries sustained while money. One or both of the defendants ad.

riding on defendant's horse street car. The mitted an indebtedness, but denied that the

district court upon the trial directed the jury amount claimed was correct. L. C. Bade, one to find for the defendant. Plaintiff appeals of the firm, acting for Winters & Bade, had from the judgment, assigning error in that receipted for the potatoes to the railway com- order. Such order must be treated as in the pany. The original bill of lading was pre nature of a nonsuit in this respect: that, it sented by Mr. Bade in order to secure the the evidence tended to prove plaintiff's cause goods. The bill of lading was from Herbert of action, it will be taken on appeal as & Troupe, as consignors, consigned to Winters proved. McKay v. Railway Co., 13 Mont & Bade, Butte, Mont.

15, 31 Pac. 999; Creek v. McManus, 13 Mont. There was an attempt on the part of the de 152, 32 Pac. 675; Mayer v. Carrothers, 14 Mont. 274, 36 Pac. 182. There was evidence, injury to plaintiff stood in the relation of a that the plaintiff, a boy five years of age, servant of defendant, or whether he were was riding on the front platform of the horse the servant of an independent contractor, for car, with the knowledge of the driver, and whose acts of negligence the defendant was that the car struck a stone, and jolted the not liable. The defenuant was the owner of plaintiff off, and ran over him, inflicting the a street-car franchise in the city of Great injuries complained of. One ground of the Falls. He had built a car track extending motion to direct the jury to find for the de- over six or seven blocks, and had one or two fendant was that it was not shown that the cars on the track. Defendant lived in Heledefendant was guilty of any negligence. We


J. O. Gregg, of Great Falls, was his are of opinion, however, that to allow a boy agent, acting for him in relation to this of such tender years to ride on the front plat- street-car franchise, track, and cars. Gregs form of a horse car was evidence of negli- was also one of the owners of the railway. gence sufficient to go to the jury. Upon this Defendant, Barbour, was trustee of the railpoint we quote as follows from Railway Co. way. He was sued apparently as trustee, v. Caldwell, 74 Pa. St. 421: "It is clear from and also personally. It seems that the railall the evidence in this case, and under the way people were not operating their line very instructions of the court, the jury must have extensively, for Mr. Gregg testified that he, found that the accident which resulted in the as agent for the trustee, hired one Vaughn loss of the plaintiff's leg would not have hap- to run the car one trip a day. Gregg says pened if she had not been permitted to ride that the contract with Vaughn was that he on the front platform of the defendant's car. was to be paid so much money per month to If the rules of the company had not forbid- haul the car over the line once a day each den it, there can be no doubt that it was way, and to furnish a driver. In pursuance gross negligence for the driver to allow chil- to this arrangement Vaughn furnished the dren as young as the plaintiff and her com- driver, and was moving the car along the panion to get on the front platform, and to track at the time the plaintiff was injured. ride there. If they got on without his per- | Defendant contended that by virtue of this mission, instead of consenting that they employment Vaughn was an independent might remain on the platform, it was his contractor, and that defendant was not liable duty to compel them to go on the inside the for the negligence of Vaughn's driver. Mr. car, or to stop and put them off; and if the Gregg, however, testified that there was nothplaintiff was injured by his negligence in al- ing as to collecting fares in this contract with lowing them to ride on the platform, the Vaughn. In fact fares were not collected. company is clearly liable for the injury, un- Without expressing any opinion as to whethless the plaintiff's negligence contributed to er these railway people could lease their road produce it. But negligence cannot be imput- and rolling stock to another for the purpose ed to one who has not sufficient capacity or of operating it, it is sufficient to note here discretion to understand the danger and to that no such lease was made. The track and use the proper means to guard against it. In rolling stock were not delivered into the posthis case it is conceded that negligence is not session of Vaughn at all. He did nothing imputable to the plaintiff, who was an infant more than to haul the car the one trip a day. of tender age, and not of sufficient capacity Mr. Gregg further testified that he spoke to to foresee the danger to which she was ex- the plaintiff's father in regard to keeping his posed.” See, also, the following cases cited boys away from the cars; that he also told by appellant, which are in point: Muehl- other parties to keep their boys away; that hausen v. Railroad Co., 91 Mo. 344, 2 S. W. they did not want the boys there. He said 315; Railway Co. v. Gallagher, 108 Pa. St. that he notified those living along the car 524; Railway Co. v. Hassard, 75 Pa. St. 367; line to keep their small boys away; that they Railroad Co. v. Moore, 83 Ga. 452, 10 S. E. interfered with the running of the cars by 730. See, also, O'Mara v. Railroad Co., 38 stealing almost the cars, carrying off pieces, N. Y. 445; Robinson v. Cone, 22 Vt. 213; | breaking out windows, pushing the cars and Lynch v. Nurdin, 1 Q. B. 29; 2 Thomp. Neg. jumping on them, and interfering with the p. 1180 et seq.; Ray, Neg. Imp. Dut. c. 36, business of the railway people in every way, and cases cited; Shear. & R. Neg. $ 49. We and also breaking the padlocks they had put are satisfied that under the authorities the on the cars. Gregg also said: “I have alevidence of negligence in this respect was suf- ways objected to the boys riding on the cars ficient to go to the jury.

when they were being driven. I had no diOur view upon this point of the motion to rect control over the drivers, but I ordered Mr. direct a verdict in favor of respondent dis- Vaughn to see that the drivers kept the boys poses of the whole of that motion, except the away. I was trying to protect the property. sixth ground thereof, which is as follows: I had driven the plaintiff off the cars several "That the evidence shows that the negligence times. The contract with Vaughn was that complained of, if any, was the negligence of I was to pay him so much money a month the independent contractor, Vaughn, or his to haul the car over the line each way once servant, and not that of the defendant or his a day, and furnish a driver. I had nothing servant or agent." The question presented is to do with the drawing of the car backward whether the person immediately causing the and forward, or directing the manner in

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