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he could assign such right to the accommodation makers to be used in their favor against one for whose benefit the instrument was made and who with them was jointly indebted upon the same. From the allegations of the bill, and the conceded facts in the case, it appears that appellees stood in a dual relation upon this paper. As to the payee named therein, E. R. Benton, they were makers of the note and jointly and severally liable to him for the full amount thereof. As between themselves, however, and Daniel Fitch, it appears that they were accommodation makers only, the note having been made for the benefit of Fitch alone. As accommodation makers they stood as to Fitch in the attitude of sureties upon the note.

The proof shows that they were discharged and the note surrendered to them. It is well settled by the general commercial law that where payment is made by one of several joint debtors upon a negotiable instrument, it is a discharge of the debt as to all. And this result cannot be evaded by any change in the mere form which the transaction may assume. An indorsement or assignment of the note cannot serve to keep the note itself alive so as to be made the basis of a suit. Where the payment is made by a surety he is in equity subrogated to the right of the creditor as against the maker of the note, so far as the securities given by the maker are concerned. This is an equitable exception to the rule, that payment by one joint debtor discharges the debt as to all. Under it, the obligation is still held in force for the pur pose only of permitting the surety to avail himself of such securities as have been given by the principal debtor. Collateral securities are mere incidents of the debt, and where the debt has been discharged the securities cannot be made available; hence the necessity for the equitable exception now generally recognized.

In the present instance no securities of any kind appear to have been given by the principal maker of the note, and for this reason alone the equitable rule cannot be relied upon in this case. This not being a case in which the suit can be

maintained upon the original obligation, the remedy by attachment based upon the thirteenth section must be denied.

An examination of the complaint will show, however, that all the facts are therein pleaded which are necessary to sustain the money judgment rendered against appellant. The making of the note is alleged, and a copy thereof set forth in the pleading. It is further alleged, that the appellant Fitch was the principal maker of the note and that appellees were accommodation makers only. That Fitch has not paid the note or any part thereof and that appellees have satisfied the note. These facts were conceded upon the trial, and upon the plainest principles the accommodation makers or sureties may recover of the principal maker the amount paid for his benefit. Pray v. Maine, 7 Cush. 253; Gordan v. Wansey, 21 Cal. 77; New Bedford v. Hathaway, 134 Mass. 69.

It is contended in this case, however, that as the affidavit for attachment states that the suit is brought upon a promissory note appellees are bound by such statement and cannot recover, because the allegations of the complaint are narrowed by such statement. As we have seen, the complaint states a cause of action. This cause of action is sustained by the proofs. The remedy by attachment with us is ancillary only. Under these circumstances, we know of no principle of law which would defeat appellees' recovery by reason of their having alleged as a ground for the attachment matters which did not warrant the issuance of the writ. The judgment against appellant for the amount of the note and interest is right, and is accordingly affirmed. The judgment sustaining the attachment will be reversed, appellees to pay the costs of the attachment proceedings and the costs in this court.

Judgment modified.

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GORMAN, ET AL. V. THE PEOPLE.

1. OFFICERS DE FACTO-OFFICES DE JURE.-When there is an office duly created, public policy frequently requires that the official acts of the person actually filling such office and discharging the duties thereof shall not be questioned on the ground that the incumbent has no title to the office. This rule presupposes the existence of an office de jure. There is no principle of law under which a de facto court can be sustained.

2. LEGISLATIVE ACT ABOLISHING A COURT-SENTENCE.-A sentence imposed after the court pronouncing the same has been abolished by an act of the legislature, cannot be allowed to stand.

3. JURY MUST BELIEVE FROM the EvidencE.—An instruction telling the jury "if they believe," omitting the words "from the evidence" is objectionable. It is not necessary in every instruction to repeat the words "if the jury believe from the evidence," etc., but the charge in this respect ought to be so clear that intelligent men will have this principle of law clearly before them when deliberating upon a verdict, particularly in criminal cases.

Error to Criminal Court of Arapahoe County.

Mr. H. E. LUTHE, for plaintiffs in error.

Mr. S. W. JONES, attorney-general, and Mr. H. RIDDELL, for defendants in error.

CHIEF JUSTICE HAYT delivered the opinion of the court.

Plaintiffs in error, James J. Gorman et al. were convicted in the court below of riot, and sentenced to confinement in the county jail of Arapahoe county for the period of sixty days. By an act approved April 19, 1889, the court in which the trial of defendants took place was abolished. This act contained no emergency clause, and under our constitution went into effect ninety days after its passage, to wit, on the 18th day of the succeeding month of July. These defendants were sentenced on the next day, July 19th.

The pretended judgment in this case cannot be allowed to stand. Where there is an office duly created, public policy frequently requires that the official acts of the person actually filling such office and discharging the duties thereof shall not be questioned on the ground that the incumbent has no title to the office. Were it not for this salutary rule of law, the administration of public affairs might be thrown into the direst confusion, and the functions of government suspended pending inquiry into the right to the office. But this rule presupposes the existence of an office de jure. There is no principle of law under which a de facto court can be sustained. Norton v. Shelby, 118 U. S. 425. At the time of the imposition of this sentence, there was no such court in existence as the criminal court of Arapahoe county, and the jurisdiction of the court to enter this or any other judgment cannot be maintained.

In view of a new trial, attention is called to another error appearing from this record. The offense of which defendants were convicted is alleged to have been committed in the year 1889. At the trial the jury were instructed upon the law of forcible entry and unlawful detainer; the charge upon this subject being based upon sections 1487 and 1488 of the general statutes of 1883. These sections were expressly repealed by section 26 of an act approved April 10, 1885. Session Laws 1885, p. 224.

The last error assigned brings up for review the following part of the charge:

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"So if you believe and are satisfied beyond a reasonable doubt that these defendants or any one of them mitted at the time and place mentioned in the testimony an unlawful act forcibly or violently, or a lawful act in a violent or tumultuous manner, you are warranted in finding a verdict of guilty.

This instruction is objectionable because it does not require the guilt of the defendants to be established by the evidence beyond a reasonable doubt to justify a conviction. This omission is not cured by any other instruction given

in the case, although the jury were instructed at great length,
the instructions occupying ten closely printed pages of the
abstract. We are not to be understood as holding that it is
necessary in every instruction to say to the jury that they
must believe from the evidence; but the charge when consid-
ered as a whole ought to be so clear in this respect that in-
telligent men will have this principle of law clearly before
them when deliberating upon a verdict, particularly in crim-
inal cases.
It is doubtful, however, if this judgment should
be reversed solely on account of such an omission in the
charge. Jurors generally understand that they are to de-
cide all cases solely upon the evidence introduced at the
trial. In every case the oath administered to them calls
for a determination of the issues upon the evidence, and in
the absence of a showing to the contrary it is to be presumed
that they have acted in accordance with this oath. See Sol-
omon v. Webster, 4 Colo. 353; Ingols v. Plimpton, 10 Colo. 535.

The judgment is reversed and the cause remanded. It will be sent to the district court of Arapahoe county in accordance with the command of the statute abolishing the criminal court.

Reversed.

17 598 12a 296 17 598 f13a 135

17 598 31 108

THE DENVER & RIO GRANDE RAILROAD COMPANY, PLAIN-
TIFF IN ERROR, v. GRIFFITH, DEFENDANT IN ERROR.

1. EMINENT DOMAIN-PLEADINGS.-In proceedings under the eminent domain act, the cause is heard upon the petition,—no answer or reply thereto being necessary. This rule is subject to but one exception, which is to be found in that part of the statute providing for the filing of a cross-petition by any person interested in the property sought to be taken who has not been made a party to the action.

2. SAME EVIDENCE UPON QUESTION OF COMPENSATION. Upon the question of the compensation to be awarded to the landowner, it

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