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2. POWER TO SELL, NOT AUTHORITY TO GIVE OPTIONS.-Giving an
agent authority to sell real estate at a fixed price does not of itself au-
thorize such agent to give a third party a mere option to purchase. Ib.

3. RATIFICATION OF UNAUTHORIZED ACT.-Before a person can be
bound upon the ground of ratification of an unauthorized act of an
agent, it must appear that the principal had full knowledge of all the
material facts affecting his interests in the transaction. Ib.

4. WHEN AN EMPLOYEE BECOMES VICE-PRINCIPAL.-B., a general
agent, was in charge of the track laying, a distinct department of the
railroad construction; he had under him five different gangs of men,
employed in different branches of the track-laying department, each
gang having its particular foreman; B. had authority to hire and dis-
charge both the foremen and the workmen; he controlled the trains,
cars, tools, and other implements used in track laying; he was subject
to the superintending direction of N. when present, but during N.'s
absence he had supreme control over his department; the injury com-
plained of by plaintiff was caused by obedience to B.'s direction con-
cerning the manner in which certain work should be done; N. was
absent at the time. Held, that B. was a vice-principal and not a fellow
servant. Colo. M. Ry. Co. v. Naylon, 501.

AGREEMENTS: See CONTRACTS.

AMENDMENT:

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 ex-
cept 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 busi-
ness thereby expedited. Saint v. Guerrerio, 448.

2. AMENDMENT OF PLEADINGS.-Pleadings may be amended on the
trial of an action; and an amendment allowed at the opening of a trial,
though not actually incorporated into the record until afterwards, is
not ground for reversal when it appears that the time and mode of
amendment did not affect the substantial rights of the parties. Gwynn
v. Butler, 114.

3. JUDICIAL RECORDS, HOW AMENDED.-Where a judgment was pre-
maturely rendered as upon constructive service when in fact there had
been personal service, and the legal time for answering under such per-
sonal service had expired before the rendition of judgment, held, that
the fact of such personal service might be shown by an amendment of
the record upon proper notice or by other equivalent proceedings under
the practice in this state so as to uphold the judgment. Seeley v. Tay-
lor, 70.

APPEAL:

1. APPEALS, WHEN TAKEN.-Under the act of 1885 an appeal from
the county court to the district court is not taken until the appeal bond
is filed and approved. Heil v. Simmonds, 47.

2. NOTICE, WHEN TO BE SERVED.-Section 4 of said act requires the
notice to be served after the appeal is taken. Service of notice before
the appeal is taken is ineffectual to prevent appellee from having the
appeal dismissed. Ib.

3. PROBATE MATTERS-APPEALS.-Under the revised statutes of
1883 two methods were provided for taking appeals from judgments
of the county courts to the district courts. One relating to and fixing
the procedure in appeals in ordinary civil actions; the other prescribing
the manner of perfecting appeals from judgments and orders entered
in probate proceedings. Lusk v. Kershow, 481.

4. APPEAL BOND-TIME FOR FILING MAY BE EXTENDED.-County
courts sitting for probate business are authorized to extend the time
for filing an appeal bond. Ib.

APPEAL BONDS:

1. APPROVAL OF APPEAL BONDS.-The statute simply directs the
approval of appeal bonds by the court or clerk; it does not specify the
manner of approval. Irwin v. Crook, 16.

2. BONDS MUST BE DELIVERED.-Delivery is undoubtedly essential
to the validity of bonds, regardless of the object for which they are
given. lb.

3. WAIVER OF APPROVAL BY OBLIGEE.-Where a statute requires
that the sureties upon an appeal bond shall be approved by the court,
it is competent for the obligee to waive such approval. And if the
waiver clearly appear the instrument is binding upon the sureties,
though not formally approved. Ib.

4. POWER OF COURT TO MODIFY ORDER IN APPEAL CASES.-The
court has power at the same term to annul or modify a former order
so as to extend the time for filing an appeal bond, and authorize the ap-
proval to be by itself instead of the clerk. Ib.

5. FORMAL APPROVAL NOT REQUIRED.—In the absence of an unmis-
takable legislative intent to make the approval an absolute sine qua non
to the validity of a statutory bond for any purpose, the approval pro-
vision is not so far mandatory as to be a shield for the protection of
fraud. And if the surety voluntarily executes an appeal bond and de-
livers it unconditionally to the principal therein named, and the princi-
pal without condition delivers it to the clerk who receives it and files it
and it is during the same term approved by an order of court, if appel-
lee without fault on his part relying upon its validity in good faith liti-
gates the appeal and incurs additional labor and expense, the sureties
are estopped, in a suit on the bond by the obligee, from setting up a
secret understanding with the clerk. Ib.

6. Office of APPEAL BOND.-An appeal bond is not a substitute for
the judgment appealed from; it serves to suspend the enforcement of
the judgment pending the appeal; and the judgment creditor receives
it as security for his judgment, not in satisfaction of it. Rockwell v.
District Court, 118.

APPLICATION OF PAYMENT: See PAYMENT.

APPROPRIATIONS:

1. METHOD OF APPROPRIATION.—'
-The act of March 15, 1889, appro-
priating to the Soldiers' and Sailors' Home a gross sum, "out of any
funds in the treasury not otherwise appropriated," does not amount
to an appropriation out of the revenues of a particular year or years
merely because it provides that a part of such sum may be used during
a particular year. Henderson v. The People, 587.

2. PAYMENT OF APPROPRIATION.-In order to compel the state au-
ditor by mandamus to issue his warrant for an appropriation, it must
clearly appear, either that there were at the date of the appropriation
funds in the treasury not otherwise appropriated,—that is, revenue then
provided for by law and applicable for such appropriation sufficient to
pay the same,—or, that the general assembly making such appropria-
tion did, within constitutional limits, provide for levying a sufficient
tax to pay such appropriation within the proper fiscal years. Ib.

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3. PREFERRED APPROPRIATION.-A general appropriation act to de-
fray the expenses of the executive, legislative and judicial departments
of the state government must take precedence over an appropriation
for the Soldiers' and Sailors' Home. Ib.

4. VOID APPROPRIATION.—It is the duty of every public officer con-
nected with the administration of the state finances to treat as void
cach and every appropriation in excess of constitutional limits. Ib.
ARGUMENT: See ATTORNEY.

1. IMPROPER ARGUMENTS, NOT ALLOWABLE.-An argument which
refers to the trial judge in language that is wholly unnecessary and
grossly improper will not be allowed in this court. Diamond etc. Min-
ing Co. v. Faulkner, 9.

2. REVIEW-LIMITED TO BRIEF AND ARGUMENT.-In general, it is
inexpedient and contrary to good practice to attempt to review a cause,
except so far as counsel give assistance by brief and argument. Town-
send v. Fulton Irrigating Ditch Co., 142.

3. RULE CONCERNING ORAL ARGUMENTS IN SUPREME COURT. - By
a rule of the supreme court a party who interposes a timely written
request before the court for an oral argument upon the final hearing is
entitled thereto. But if neither party interpose such request until after
the cause is finally determined, he will be held to have waived his right
thereto. And such waiver applies also in cases sent to the supreme court
commission for preliminary consideration and report. Butler v. Rock-
well, 290.

ASSESSMENT: See TAXATION.

1. ASSESSMENT ROLL-MAY BE RETURNED AFTER STATUTORY TIME.
-Failure to return an assessment roll to the county clerk within the
proper time is at most only an irregularity, and does not invalidate the
subsequent proceedings. Waddingham v. Dickson, 223.

2. ASSESSMENT UPON THE BASIS OF FRONTAGE. — Assessments for
local improvements upon the basis of frontage, where the lots abutting
upon the improvement are of substantially equal depth, will be upheld
where the same is not shown to be unfair. City of Denver v. Knowles,
204.

3. POWER TO MAKE LOCAL ASSESSMENT.-The power to make such
local assessments is not an infringement upon the constitutional rule
requiring all taxes to be uniform. Ib.

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4. CONSTITUTIONAL LAWS TAXES AND ASSESSMENTS DEFINED. —
The word "tax," as used in the constitution, refers to the ordinary
public taxes and not to assessments for local improvements in cities
and towns. Ib.

5. SIDEWALKS-ASSESSMENTS FOR.-Under the laws of this state a
purchaser at a tax sale held at the instance of a city to collect an ille-
gal assessment for a sidewalk is remediless, although his tax title is in-
valid. Richardson v. City of Denver, 398.

ASSESSMENT WORK:

1. PERFORMANCE OF ANNUAL LABOR ON MINE.-Labor performed by
the owner of a mine in constructing a wagon road thereto for the pur-
pose of better developing and operating the same may be treated as a
compliance with the law relating to annual assessment work. Doherty
v. Morris, 105.

2. FORFEITURE AND RELOCATION OF MINING CLAIM.-Upon the issue
of forfeiture of a mining location, by non-performance of assessment
work, the conduct and interest of defendants who claim the advantage
of a relocation through such forfeiture may be considered in weighing
their testimony concerning the forfeiture. Ib.
ATTACHMENTS:

1. CONSTRUCTION OF ATTACHMENT ACT.-Plaintiffs had been sureties
for defendant upon a promissory note which, the defendant failing to
pay, they paid and procured to be assigned to them. In this action
against the principal maker of the note, they caused an attachment to
be issued upon the ground that the suit was brought upon an overdue
promissory note; held, the statute was not intended to cover such a
case and that the defendant's motion to dissolve the attachment should
have been sustained. Fitch v. Hammer, 591.

2. SALE UPON CONDITION-ATTACHMENT BEFORE DELIVERY OF POS-
SESSION. Where personal property is contracted to be sold upon con-
dition that it shall be delivered at a particular place, it is subject to
attachment at the suit of the creditors of the vendor until it is delivered

in accordance with the condition of the contract. Johnson v. Bailey,
59.

ATTORNEY: See also DISBARMENT PROCEEDINGS.

ATTORNEYS-DUTIES AND PRIVILEGES.-A regularly licensed attor-
ney must be held to know better than to inject into a legal argument
irrelevant and scandalous denunciations of his opponent; a legal argu-
ment may consist of an appeal to reason or authority; and the advo-
cate, either orally or in writing, may freely exercise his talents, and
employ all the resources of his learning and logic which the scope of
the questions afford; but he is not at liberty to go outside the record for
purposes of scandal and abuse. People v. Brown, 431.
BAILEE:

STATE TREASURER IS NOT.-The obligation of the treasurer differs
from that of an ordinary trustee. Such trustee is only held to the ex-
ercise of reasonable care with reference to the trust property. A com-
mon law bailee is required to pay out the identical money received, the
state treasurer is not. State v. Walsen, 170.

BILLS AND NOTES:

1. PAYMENT of Note by One, DISCHARGES ALL.—The payment of a
negotiable instrument by one of several joint debtors is a discharge of
the debt as to all. Fitch v. Hammer, 591.

2. PAYMENT BY SURETY—SUBROGATION.—Where securities are given
by the principal debtor, a surety paying the note is subrogated to the
right of the payee against the maker upon such securities. This is an
equitable exception to the rule, that payment by one joint debtor dis-
charges the debt as to all. Ib.

BILL OF EXCEPTIONS:

1. BILL OF EXCEPTIONS-HOW PRESERVED.-A bill of exceptions
cannot be preserved by affidavits except in a case where, upon the pre-
sentation of a true bill, the judge "shall neglect or refuse to allow and
sign and seal the same." Diamond Tunnel G. & S. M. Co. v. Faulkner, 9.

2. SAME-HOW ATTESTED.-Nothing can be properly inserted in a
bill of exceptions unless allowed by the presiding judge, or attested by
the affidavits of two disinterested persons. Ib.

3. AFFIDAVIT OF BUSINESS AGENT, INCOMPETENT.-The business
agent of the party interested in preserving a bill of exceptions is not a
proper person to authenticate the bill, especially in a case where he is
the principal witness for such party. Ib.

BILL OF SALE:

BILL OF SALE-RECORD OF NOT AUTHORIZED.-The fact that a bill of
sale of chattels has been recorded, there being no law authorizing its
record, has of itself no legal significance. Allen v. Steiger, 552.

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