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BONDS:

1. BONDS MUST be delivered.-Delivery is undoubtedly essential
to the validity of bonds, regardless of the object for which they are
given. Irwin v. Crook, 16.

2. APPROVAL OF STATUTORY BONDS.-The main, if not the exclu-
sive purpose in requiring the approval of statutory bonds by a desig-
nated officer is to protect the obligee, whether such obligee be an
individual or the public. Ib.

3. DELIVERY OF STATUTORY BOND WITHOUT APPROVAL.-The de-
livery of a statutory bond may (in the absence of affirmative statutory
words in effect declaring the unapproved instrument a nullity) be suffi-
ciently complete without the official approval to bind the sureties, where
the officer has entered upon the discharge of his duties to the public, or
where the obligee has in words or by conduct indicated his satisfaction
therewith, and through reliance thereon has placed himself in a less
favorable attitude. Ib.

4. STATUTORY AND OFFICIAL BONDS SUBJECT TO SAME RULES.-
Appeal bonds, replevin bonds, and the like, are classified with techni-
cal official bonds, and in the absence of statutory differences are sub-
ject to the same general rules of law. Ib.

5. 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.

6. 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. Ib.

7. 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.

8. In the absence of an unmistakable legislative intent to make the
approval an absolute sine qua non to the validity of a statutory bond
for any purpose, the approval provision 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 delivers it unconditionally to the principal
therein named, and the principal without condition delivers it to the
clerk who receives it and files it and it is during the same term ap-
proved by an order of court, if appellee without fault on his part rely-
ing upon its validity in good faith litigates 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.

9. OFFICE OF APPEAL BOND.--An appeal bond is not a substitute for
the judgment appealed from; it serves to suspend the enforcement of
VOL. XVII.-39

the judgment pending the appeal; and the judgment creditor receives
it as security for his judgment, not in satisfaction of it. Rockwell v.
District, 118.

BURDEN OF PROOF:

1. CONTESTED ELECTION-BURDEN OF PROOF.-In a contested elec-
tion case the burden of proof is upon the contestor to sustain by a pre-
ponderance of the evidence the material averments of his petition. Price
v. Archuleta, 288.

2. NEGLIGENCE-BURDEN OF PROOF.-In an action for negligence
the plaintiff is not entitled to recover unless the negligence of the de-
fendant be affirmatively established by a preponderance of the evidence.
Denver & R. G. R. R. Co. v. Ryan, 98.

3. CONTRIBUTORY NEGLIGENCE-BURDEN OF PROOF.-Where a de-
fendant relies upon the contributory negligence of the plaintiff as a
defense, such contributory negligence must be shown by a preponder-
ance of the evidence or the defense will be unavailing. Ib.

4. FOLLOWING VEIN BEYOND SIDE LINES-Burden of Proof.-A
patent gives a prima facie right to the patentees to the exclusive pos-
session of the premises covered by the patent. When others rely upon
a right to follow into the patented territory a vein, which they claim
has its top or apex outside the premises covered by such patent, the
burden of establishing such right rests upon them. Iron Silver M. Co.
v. Campbell, 267.

5. CONTESTING TAX DEEDS.-Under the statutes of this state the
burden of overthrowing a tax deed, regular in form, is upon the party
claiming adversely thereto. Waddingham v. Dickson, 223.

6. CONDITIONAL PROMISE-Burden of PROOF.-A conditional prom-
ise by the infant, after reaching maturity, to pay the debt when able is
not binding upon him unless the proof thereof be supplemented by
proof of his ability to pay. The burden of showing such ability, by
some evidence relating to his property or income, devolves upon plain-
tiff. Kendrick v. Neisz, 506.

CAUSE OF ACTION: See also PLEADINGS.

1. RIGHT OF RECOVERY-REQUISITES OF.-In the absence of statute
there are three requisites to the right of recovery for money paid by
reason of illegal taxation, viz.: First,-The assessment must be abso-
lutely void. Second,―The money sued for must have been received by
the corporation for its own use. Third,-The payment must have been
upon compulsion and not voluntary. Richardson v. City of Denver, 398.
2. PROMISE IMPLIED FROM CIRCUMSTANCES.-When a person per-
forms work or furnishes material beneficial to the property of another,
a promise to pay therefor by the owner may sometimes be implied from
circumstances; but the circumstances must be such as fairly indicate
the owner's intention to pay, or such as equitably estop him from deny-

ing his liability to pay; the mere fact that the property has been im-
proved will not suffice. Mann v. Farnum, 427.

3. MALICIOUS PROSECUTION-WANT OF PROBABLE CAUSE.-In an ac-
tion for malicious prosecution the averment by plaintiff of want of
probable cause is a material and affirmative allegation, and unless sup-
ported by a preponderance of the evidence, the action must fail. Gur-
ley v. Tomkins, 437.

4. Right of WAY IN IRRIGATing Ditch.-When an alleged right of
way for the carriage of water through an irrigating ditch already con-
structed is controverted in a civil action under appropriate pleadings,
the court may determine the controversy, notwithstanding the action is
not a proceeding to condemn a right of way under the act of eminent
domain. Saint v. Guerrerio, 448.

5. ACTION BY ADMINISTRATOR.—Where an administrator brought an
action to remove a cloud from title to certain real estate alleged to
belong to his intestate, and the complaint did not aver that the dece-
dent's estate was insolvent or that it was necessary to sell or otherwise
dispose of real estate to pay debts, or that there were any debts against
the decedent's estate; held, that the complaint did not state facts suf-
ficient to constitute a cause of action in favor of the administrator in
his representative capacity. McKee v. Howe, 538.

6. WHEN A STOCKHOLDER MAY SUE or defend.-Where the cause of
action belongs to the corporate entity it is only where the corporation,
either actually or virtually, refuses to institute or defend an action that
one or all the stockholders can appear in its behalf. Miller v. Murray,
408.

7. WHAT MUST APPEAR TO GIVE STOCKHOLDER A STANDING IN
COURT.-To give a stockholder standing in court it must be shown
that he cannot obtain redress either through the managing body, or the
stockholders. Ib.

8. STATUTORY REMEDY FOR CAUSING DEATH OF HUSBAND OR WIFE.
-Section 1508, Mills' Ann. Stats., gives the surviving wife or husband
a preferred right to sue during the first year; but he or she is not for-
bidden to maintain an action at any time before the expiration of the
second year, provided there be no heirs, or provided the heirs, if any,
have not instituted judicial proceedings. Hayes v. Williams, 465.

9. BONA FIDE EFFORT TO COMPLY WITH STATUTE.-But if the statute
were construed otherwise, and the survivor's action were required to
be brought during the first year, a bona fide effort by suit within that
period, though through an excusable mistake against the wrong party
and ineffectual, would be sufficient. Ib.

CAVEAT EMPTOR:

1. TAX SALES-RULE AS TO PURCHASERS.—A purchaser at a tax sale
from one who is not the owner of the property comes strictly within
the rule of caveat emptor. Richardson v. City of Denver, 398.

2. TRUSTEES SALES-CAVEAT EMPTOR.-The rule of caveat emptor
applies to trustees' sales, and the purchaser is, in proceedings by a party
injured, conclusively charged with notice of irregularities by the trustee
in executing the power of sale. Stephens v. Clay, 489.
CHANGE OF VENUE:

CHANGE OF VENUE-DISCRETION OF TRIAL COURTS.-In passing up-
on an application for a change of venue on the ground of prejudice of
the inhabitants, the trial court should exercise a sound discretion; it is
only in case of manifest abuse of such discretion that its decision will
be reversed by this court. Power v. The People, 178.

CHATTEL MORTGAGE:

CHATTEL MORTGAGE-DILIGENCE.-When mortgaged chattels are
permitted to remain in the possession of the mortgagor until default,
the mortgagee must assume control within a reasonable time after ma-
turity of the debt secured. The diligence required depends largely
upon the circumstances of the case, and is a question of both law and
fact. Allen v. Steiger, 552.

CHATTELS REAL:

1. COMMON LAW-DESCENT OF PROPERTY.-The rule of the common
law is, that when a person dies intestate his real estate descends to his
heir; but his personal property, including chattels real, vests in his ad-
ministrator. McKee v. Howe, 538.

2. REAL ESTATE BY STATUTE.-In this state, by sundry statutes, in-
terests in lands, such as chattels real, leases for a term of years, and the
like, are regarded as real estate instead of personalty. Ib.

3. INTERESTS IN LANDS.-Where a person dies intestate having a title
or interest in lands for a term of years, such interest is, by force of our
statutes, to be regarded and treated as real estate by his administra-
tor. Ib.

CONSTITUTIONAL LAW.

1. CHARTER OF CORPORATION A CONTRACT.-The charter of a private
corporation is a contract within the meaning of the federal constitution,
the obligation of which cannot be impaired by subsequent legislation.
Platte & Denver C. & M. Co. v. Dowell, 376.

2. CONSTITUTIONALITY OF SUPREME COURT COMMISSION.-The con-
stitutionality of the late supreme court commission will not be consid-
ered in a private controversy which was not referred to the commission
for examination, and where the cause, in which the judgment sought
to be impeached was rendered, has according to the records of the su-
preme court and in conformity with its procedure passed to the juris-
diction of the trial court; such judgment being only indirectly drawn
in question through suit upon the appeal bond given in connection with
the former review thereof. Butler v. Rockwell, 290.

3. TITLE OF ACT-MANDAMUS.-Laws 1885, p. 157, entitled "An act to

amend section one hundred and twenty-seven of an act entitled 'An act
concerning counties, county officers, and county government, and re-
pealing laws on these subjects,' approved March 24, 1887," provides that
county officers shall keep their offices at the county seat open during
business hours, and that all books and papers required to be in their
offices shall be open to examination, and any person engaged in making
abstracts shall have the right to inspect and make memoranda of the
contents of such books and papers for the purpose of their business.
Held, that the subject-matter of the act is sufficiently expressed in the
title. Stocknan v. Brooks, 248.

4. COSTS IN CONDEMNATION PROCEEDINGS.—Under the constitution,
respondent, whose property is taken against his will through condem-
nation proceedings, is entitled to recover his court costs reasonably in-
curred in such proceedings. The common law rule forbidding the
recovery of costs by either party in actions at law does not control.
Dolores No. 2 L. & C. Co. v. Hartman, 138.

5. THREE DEPARTMENTS OF GOVERNMENTAL POWERS.-The legisla-
tive, executive and judicial departments of the state government are dis-
tinct from each other, and so far as any direct control or interference
is concerned, are independent of each other; but the powers of a sin-
gle department are not absolute, and may be incidentally affected by
the action of another department. Greenwood etc. Land Co. v. Routt,
156.

6. POWERS OF THE SEVERAL DEPARTMENTS.-The supreme executive
power of the state is vested in the governor. The legislative power is
vested in the general assembly. The judicial power is vested in the
courts; and they are charged with the responsibility of trying and de-
termining suits and controversies affecting both public and private
rights, and, for this purpose, are invested with the authority of con-
struing the constitution and laws of the state. Ib.

7. DITCH COMPANIES SUBJECT TO THE CONSTITUTION.-A ditch com-
pany diverting water for general purposes of irrigation cannot by any
provision of its by-laws, rules, or regulations exempt itself or its stock-
holders from the operation of the constitution in respect to priority of
appropriation. Combs v. Agricultural Ditch Co., 146.

8. DUE PROCESS OF LAW.-Due process of law in a prosecution for a
felony does not necessarily include an indictment by a grand jury. In
re Dolph, 35.

9. PROSECUTION BY INFORMATION.-A felony may be prosecuted by
information where the probable guilt of the accused has been duly as-
certained and certified by a previous preliminary examination. Ib.

10. INDICTMENTS AND INFORMATIONS, CONCURRENT REMEDIES.-Gen-
eral laws, providing for indictments and informations as concurrent
remedies for the prosecution of criminal offenses throughout the state,
are not unconstitutional when surrounded by proper regulations and

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