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"DENVER, Colo., December 26, 1883. Pay to the order of Henry H. Tomkins & Company THE HENDRIE & BOLTHOFF MF'G Co.,

$1,239.72.

By J. W. COOLIDGE.

To the State National Bank, Denver, Colo."

Indorsed on face: "Paid December 27, 1883, State National Bank, Denver, Colo."

Indorsed on back: "Henry H. Tomkins & Co.

"C. S. Rebanks."

Fourth: That the balance of the account was paid by Tomkins to Farnsworth in cash.

As evidence of payment thus made, Tomkins exhibited the following receipt:

$1,925.39.

66

Office of Rust, Farnsworth & Co., 238 & 240 17th Street, DENVER, Colo., Dec. 25, 1883.

Received from H. H. Tomkins & Company, $1,925.39, in payment of account to December, including Inv. Decem

ber 5, $540.50. Thanks.

RUST, FARNSWORTH & Co.

Per A. C. F."

It will be observed that the first item of the alleged payment was the individual note of Farnsworth. The note purported to have been made at the office of Farnsworth's firm in Denver. The proof was that it was indorsed and negotiated in Leadville. This note was not due; but even if it had been, prima facie, it was not good as a payment upon, or set-off against, the debt due to the firm of which Farnsworth was a member. It could only be made available as a payment or set-off when supplemented by proof, the extent and character of which need not now be considered. It does not appear that Gurley had any knowledge, or that he had received any information, which he was bound to regard as satisfactory, prior to the dismissal of the attachment, that Rust, Farnsworth & Co. or their successors had ever in any manner become obligated to take care of this individual note

of Farnsworth. Certainly, then, as to this item, Gurley was warranted in contesting the alleged payment.

The testimony in respect to the $200 check was so uncertain, indefinite and unsatisfactory that Gurley as assignee was fully justified in contesting its validity as a payment upon the account in suit.

Tomkins claims that the Hendrie & Bolthoff check was given under the following circumstances: That at the time of this settlement with Farnsworth in the Windsor Hotel, Tomkins proposed to give his own firm check, but Farnsworth objected, saying that the credit of his (Farnsworth's) firm was not first class in Denver, and asked Tomkins if he could not procure the cash for him right away. Tomkins replied that he thought he could; and so he went to the office of Hendrie & Bolthoff and procured their check. This check was indorsed by Tomkins & Co. and afterwards by one "C. S. Rebanks," both indorsements being in blank. Who Rebanks was does not appear. Nothing in or upon the check indicates that Rust, Farnsworth & Co., or even Farnsworth himself, ever had it in their possession, or ever received a dollar of the proceeds of it.

The receipt covering these various items of payment purports to have been made at the office of Rust, Farnsworth & Co. This was a false representation on its face; for the undisputed testimony is that it was given at the Windsor Hotel. The receipt bears date December 25, whereas the testimony is that the settlement was not had until the next day. The Hendrie & Bolthoff check bears date, December 26. Prima facie, the receipt was executed before any payment was made.

Tomkins testifies that he left Farnsworth at the hotel. while he went to get the Hendrie & Bolthoff check; in so doing he passed by the business house of Rust, Farnsworth & Co. which was only a few blocks from the Windsor, and yet neither he nor Farnsworth called there. These circumstances were suspicious. Even if the transaction were an honest one, the Hendrie & Bolthoff check is no proof what

ever of payment. The check appears to be indorsed by Tomkins & Co. to Rebanks, so that, presumably, Tomkins received the proceeds from Rebanks. If he afterward paid the same over to Farnsworth, it was only a cash payment, and the production of the check was no evidence of payment to the firm or to Farnsworth.

The alleged settlement and payment of so large an indebtedness in the manner claimed by Tomkins-the settlement being had with Farnsworth individually, and without consulting any other member of the firm, not at the usual place of business of Rust, Farnsworth & Co., though within a few doors of their business house, the taking of a receipt with a false heading, and probably a false date, the setting off of Farnsworth's individual note against the debt due his firm without authority from said firm-these facts, together with the known personal intimacy of Tomkins and Farnsworth, and the further fact that Farnsworth had very soon thereafter left the state without accounting to his firm for the alleged payment, were circumstances well calculated to cause Gurley or any man of ordinary caution and prudence to doubt the bona fides of the alleged payment; these facts and circumstances amounted to probable cause for continuing the litigation until the alleged payment should be more satisfactorily shown. The burden of proof was upon Tomkins & Co. to establish their plea of payment; the receipt was not conclusive evidence of such payment, and Gurley, as the representative of the insolvent firm, had probable cause for contesting its validity.

It is contended that even though there may have been probable cause for the prosecutiou of the suit, yet, that there was not probable cause for the attachment proceedings. It is urged that the original plaintiffs had not proceeded by attachment, that Gurley had delayed such proceedings for several months, and had only resorted to attachment after he had failed to effect a settlement or compromise without bringing the suit to trial. That this argument has some force in support of the claim that Gurley acted maliciously

in proceeding by attachment, cannot be denied. But proof of malice without proof of want of probable cause is not sufficient to sustain an action for malicious prosecution. Malice may sometimes be inferred from the want of probable cause; but the want of probable cause is never to be inferred from malice alone.

As a matter of fact, the motive for issuing and levying the attachment writs may have been to compel a settlement, still, as a matter of law, such motive furnishes no support to the claim that there was a want of probable cause either for the suit or for the attachment proceedings. The suit being for a balance due "upon an overdue book account," no other cause of attachment was necessary. Upon the filing of an affidavit showing such cause, and the giving of the proper bond, the plaintiff was entitled to have the property of the defendants attached "at the time of issuing the summons*** or at any time afterward before judgment." Code, secs. 91, 92. The legal right to proceed by attachment upon an overdue book account is statutory; it is absolute and unqualified. So long as there was probable cause for continuing the suit upon such a cause of action for any purpose, there was probable cause to proceed by attachment; probable cause to sue in such a case carries with it probable cause to attach. Whether it is wise to allow an attachment upon the sole ground of an overdue book account is not a judicial, but a legislative question.

The principal matters relied on to show the want of probable cause have been sufficiently considered. It is unnecessary to notice further the details of the evidence. In view of the facts and circumstances admitted or proved without substantial contradiction, it does not appear that Gurley had notice of any other fact or circumstance prior to the termination of the attachment proceedings which should have caused him to place confidence in the claim of payment as made by Tomkins & Co. The facts and circumstances under which he acted, were sufficient to justify him as a man of ordinary caution and prudence in proceeding with the

suit instituted by his assignors, notwithstanding anything proved or attempted to be proved by the plaintiffs. The evidence failed to sustain the allegation of want of probable cause, and the trial court should have so decided as a matter of law. Judgment should have been rendered for the defendant. Brown v. Willoughby, 5 Colo. 1; Murphy v. Hobbs, 7 Colo. 553; M'Cormick v. Sisson, 7 Cowen, 715; Grant v. Moore, 29 Cala. 644; Eastin v. Bank of Stockton, 66 Cala. 127; Burton v. St. Paul M. & M. Ry. Co., 33 Minn. 189; Batchelder v. Frank, 49 Vt. 90; Alexander v. Harrison, 38 Mo. 264; Barrett v. Spaids, 70 Ill. 408; Williams v. Brimhall, 15 Pick. 452; 2 Greenleaf's Evidence, sec. 449 et seq. The remaining assignments of error need not be considered. The judgment of the district court is reversed and the cause remanded.

Reversed.

17

448

19 600

17 448

24 144

17 448 27 275

SAINT ET AL. v. Guerrerio.

1. AMENDMENTS OF PLEADINGS.-The power to allow amendments is necessarily intrusted, in a large degree, to the discretion of the trial court, and should be liberally exercised in furtherance of justice; but when an application to amend is resisted it should not be granted except upon good cause shown, and upon such terms as the justice of the particular case may require. Adequate terms should be enforced, not merely as a matter of justice to the parties, but to the end that there may be more diligence in the preparation of causes, and the public business thereby expedited.

2. DIVERSION OF WATER-PRIOR APPROPRIATION.-Unless the prior appropriator is entitled to all the water of a natural stream, he cannot, in the nature of things, identify certain specific water as belonging to himself while the same remains in the natural channel; and so long as he is able to secure the full amount of water to which he is entitled, he will not be heard to complain that others are diverting its waters.

3. JOINDER OF DEFENDANTS IN ACTION BY PRIOR APPROPRIATOR.—If a party, by "priority of appropriation," has actually acquired “the better right" to the use of water from a natural stream, he may

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