that the same had been deposited with the Guarantee Trust & Safe-Deposit Company of Philadelphia. This prior clause is not an allegation, nor equivalent to an allegation. of the payment of the money to Cooper; and the subsequent clause, dependent, as it is, upon the prior clause, and referring specifically thereto, amounts simply to an allegation of the deposit of such money with the Philadelphia Company. The complaint, therefore. fails to state a cause of action, in that it does not allege performance on the part of plaiutiffs of one of the essential conditions imposed upon them by the terms of their contract.

A general demurrer to defendant's third defense to plaintiffs' first cause of action was filed and sustained in the court below. In this defense it is alleged, among other things, that on the 1st day of May, 1882, Sutton and one D. H. Bradley and Isaac Cooper made and entered into a written agreement between them, in which agreement, among oth er things, it was expressly provided that the said Sutton and Cooper were joint owners and equal partners in and to all the capital stock and bonds of the Roaring Fork Improvement Company mentioned in plaintiffs' complaint, then owned or held by said Isaac Cooper, or that might thereafter be acquired by him, and also that all expenses thereafter incurred and outlays made by Isaac Cooper in the conduct of the affairs of the Roaring Fork Improvement Company were to be shared by Cooper and Sutton. It is also alleged that all the expenses accruing to Cooper under and in accordance with the terms of the agreement known as the "Dividend Agreement" should be equally shared by Cooper and Sutton, and that such profits as might accrue by reason of the matters and things aforesaid should be equally divided between them, share and share alike, and that an equal division of the stock and bonds of the Roaring Fork Improvement Company should be made between them. The court erred in sustaining the demurrer to this pleading. If the facts alleged are true,-and they must be taken as true, as against the demurrer, the plaintiff Sutton had become jointly liable with defendant Cooper upon the agreement which constitutes the basis of the first cause of action as pleaded. The defense should have been permitted to stand, to the end that in this action the ultimate rights of the parties may be determined, as between themselves, as provided by section 222 of the Civil Code: "Sec. 222. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves."

The judgment of the district court is bad in form, in that the administrator is personally charged, and also for the reason the exe

cution is awarded. In the event of a recovery by the plaintiffs, the judgment should be against the administrator de bonis testatoris. Mills' Ann. St. § 4793'; Vance's Heirs v. Maroney, 3 Colo. 293; Mattison v. Childs, 5 Colo. 78.

In view of a new trial, other errors assigned will be briefly noticed. Although it is admitted that the estate of Isaac Cooper was in course of administration in the county court of Arapahoe county at the time of the bringing of this suit, plaintiffs were not for this reason required to present their claims to that court for allowance. They could, at their option, bring suit in the district court in the first instance. Mills' Ann. St. § 4792; Vance's Heirs v. Maroney, supra.

The denials in the answer are as follows: The defendant "denies any knowledge or information sufficient to form a belief as to each and every allegation in the complaint, except as hereinafter admitted." This form of denial is defective, in that it does not contain a statement to the effect that defendant cannot obtain sufficient knowledge or information upon which to base a belief. From aught that appears, information might have been obtained, upon the slightest inquiry, which would have enabled the defendant to either have admitted or denied in positive form the allegations of the complaint. Civil Code, § 56; Haney v. People, 12 Colo. 345, 21 Pac. Rep. 39.

The district court, consistently with its ruling sustaining the demurrer to the amended third defense, rejected the proof offered of the alleged contract of May 1, 1882. Hence, such contract is not before us, in this case, in such form as to authorize further consideration. The judgment will be reversed, and the cause remanded, with directions to the district court to allow the parties to amend pleadings.

(3 Colo. App. 526)

UNION PAC., D. & G. RY. CO. v. WIL

LIAMS. (Court of Appeals of Colorado. Oct. 24, 1893.) RAILROAD COMPANIES-FIRES-DAMAGES-EVI

DENCE.

1. Under Act March 31, 1887, making railroad companies liable for loss from fire started by their engines, no negligence on the part of one whose property is destroyed is to be considered unless he knowingly or purposely placed his property where sparks would be likely to ignite it, or, being present, suffered it to remain in proximity to a fire in actual progress, without effort to protect it; and, in the absence of evidence of such neglect, an instruc

The section provides: "Upon the recovery of judgment at law in any court other than the county court, against any executor or administrator, for a demand due from his testator or intestate, no execution shall be issued thereon, but the party recovering such judgment shall cause a transcript of the record of the judgment entry to be filed in the county court, and the same shall be classed and paid as other demands are."

tion on contributory negligence is properly refused.

2. Where there is no home market for goods destroyed, it is proper to base their value on a foreign market, less the freight.

3. Where wagons and harness are destroyed, their cost, less a reasonable amount for wear and tear, is proper evidence of their value.

4. Where a hayrack built by the owner is destroyed, the cost of the materials and value of time taken to build it is the proper measure of damages.

5. A person who has raised a crop on his farm may testify as to its value.

6. The owner of horses, though not a horse trader, may testify as to their value.

Appeal from district court, Larimer county. Action by Thomas Williams against the Union Pacific, Denver & Gulf Railway Company. From a judgment for plaintiff, de fendant appeals. Affirmed.

Teller, Orahood & Morgan, for appellant.

THOMSON, J. Appellee recovered judgment against appellant, a railroad corporation, for the destruction of certain property by fire, alleged to have been ignited from an engine operated and managed by appellant. Appellant objects to the act of March 31, 1887, (Sess. Laws 1887, p. 368,) under which this action was brought, as being in violation of the provisions of the constitution of the state, but the objection is not seriously urged. The constitutionality of the act was upheld by the supreme court in Railway Co. v. De Busk, 12 Colo. 296, 20 Pac. Rep. 752; and this court followed the decision in that case in Railway Co. v. Arthur, 2 Colo. App. 159, 29 Pac. Rep. 1031. The only tribunal in this state having jurisdiction in the matter of the construction of constitutional provisions having passed upon the question, it is not open for argument in this court. The principal errors relied upon for a reversal of the judgment relate to the admission of testimony in behalf of appellee, and the failure of the court to instruct the jury that contributory negligence on his part would preclude his recovery. The latter question was disposed of in Railway Co. v. Arthur, supra, where the court say: "We are at a loss to see how the doctrine of contributory negligence can be invoked as a defense where there is no law requiring precautionary action on the part of the party damaged, and no question of negligence on the part of the corporation can be made or adjudicated." Of course, if a party should knowingly or pur posely place his property in a situation where sparks from a passing engine would be likely to ignite and burn it, he could not recover in case of its destruction; but such an act would scarcely come within the definition of contributory negligence. It would be a fraud from which its author would not be permitted to derive an advantage. Nothing of this kind is, however, claimed here. The appellant introduced no evidence. The testimony for appellee discloses no negligence on his part, and as the liability of

the appellant is fixed by the statute, irrespective of any negligence of its own, and as any negligence of the owner of the property is not to be considered, unless it comes within the doctrine announced in Railroad Co. v. Morton, (Colo. App.) 32 Pac. Rep. 345, where it was shown that the owner, being present, suffered his property to remain in dangerous proximity to a fire in actual progress, without any effort to remove or protect it, there was no room for the instruction suggested, and the giving of it would have been error.

The objections to the testimony go to the competency of the witnesses to testify as to values. The property destroyed was 24 tons of bleached bones, 1 set of double harness, 1 wagon, 1 ton of hay, 1 hayrack, and 2 horses. There was no market for the kind of bones burned, short of St. Louis or Chicago. These bones had been collected by appellee for shipment to market. He had kept himself advised of their value in Chicago. These were cutlery bones. He knew their price for the past three years, and had quotations from the cutlery manufactory at Chicago after the fire. He also knew the cost of transportation to Chicago, and fixed their value by deducting this cost from the Chicago price. As there was no home market for the bones, we do not very well see how their value could have been fixed by any other method. The harness and wagon had been used for some time. There was no general market for secondhand articles of that description. There was no place in the vicinity where they were bought and sold. Appellee had them for his own use. The only way to sell them was to find a man who wanted them. They had a value, notwithstanding there was no market for them. It will not do to say that because such things are not bought and sold in the market, and a market value is therefore not susceptible of proof, they can be destroyed, and the owner receive nothing for them. The witnesses were men who bought and used such things in their business of farming, and based their judgment on their practical knowledge. The original cost of the articles, the amount of use to which they had been subjected, and their condition at the time, were taken into the consideration, and in this way the witnesses reached an estimate of their value. We are not disposed to say that, because there was no market value which could be proven, therefore appellee should recover nothing; and in the absence of such proof, for the reason that it could not be made, wo think that the testimony which was given was competent and proper for the purpose for which it was offered. Insurance Co. v. Taylor, 14 Colo. 499, 24 Pac. Rep. 333; Lumber Co. v. Wilmore, 15 Colo. 136, 25 Pac. Rep. 556. The hayrack was new. The appellee bought the material, and made it himself, and to suit himself. It is not probable that

he could have sold it for a fraction of what it cost. There was no person engaged in the business of dealing in such things, and so he very properly added the cost of the material to the value of his labor in making it, and gave the sum total as the value of the hayrack. He raised the alfalfa on his farm. It was one of his crops, and he is presumed to know its value. Appellee testified that he knew the value of horses at the time these were burned. He was not a horse trader, although he had traded in horses in a limited way. He was fond of horses, and these were for use on his farm. He had seen horses bought and sold, both at private sale and auction. We think that, as the owner of the horses, he laid a sufficient foundation to enable him to testify as to their value. Other witnesses, who stated that they were acquainted with the value of horses at the time, corroborated him. The appellant was probably not dissatisfied with his valuation of any of the property, because it offered no evidence and made no effort to reduce such valuation. On a review of the entire case,

we are unable to discover any reason why the judgment should be reversed, and it is therefore affirmed.

1. Civil Code, c. 23, § 266, provides that, if the premises for which an action to recover possession is brought are continually occupied, the occupant shall be made defendant with any one claiming an interest adversely to plaintiff. Section 267 provides that damages for ouster or detention shall be recovered in the same action. Section 269 provides that the verdict may be against either defendant. Held, that where, after action brought against one in possession and one from whom he rented, the former recognized plaintiff's title, and took a lease from him, a release of him by plaintiff would not abate the action as to the other, the latter being the only one claimed to be liable for mesne profits.

2. Where one erects a building on vacant land, and then rents the property, he cannot, in an action to recover possession and mesne profits, defend on the ground that he asserted no right to the land, but that his acts and control were limited to the improvements.

Appeal from district court, Arapahoe county.

Action by Allen N. Ghost against William A. Shuman for possession of real estate and mesne profits. Judgment for plaintiff. Defendant appeals. Affirmed.

Clay B. Whitford, for appellant. Murray & Andrews, for appellee.

Stuart,

REED, J. The appellee, from and after the year 1880, was the owner in fee of two lots in the city of Denver. The lots were unimproved. After he became the owner,

1 Rehearing denied November 15, 1893.

parties, without his knowledge or consent, erected a building partly on the public alley, and partly upon appellee's property; also, erected sheds, and put in platform scales. Such improvements, in connection with a part of appellee's lots, were used for coal, wood, and hay business, and yard. About the year 1885, appellant claimed to be the owner of the improvements, and, under such claim, leased the premises to several parties, successively, collected the rents, and applied them to his own use. In October, 1889, this action was brought against appellant and one Christ Thede-the latter being the tenant of the former, and in the possession-to obtain the possession, and recover the rents and profits paid to and kept by appellant. After the filing of the suit, and before the issues were made up, Thede and appellee adjusted their matters; Thede attorning to appellee, taking a lease from him, and appellee releasing him from all claims. This fact was set up in the answer of appellant. The case was tried to a jury, resulting in a verdict and judgment against appellant for $500, and in favor of defendant Thede. A large number (28) supposed errors occurring upon the trial are assigned.

It is seriously contended that the release of Thede operated to release appellant, and that the suit abated. This contention cannot prevail. Section 266, c. 23, Civil Code 1887, is as follows: "If the premises for which the action is brought are continually occupied, such actual occupant shall be made defendant in the action together with any person claiming title to or any interest in the premises adversely to the plaintiff." By section 267 it is provided that, in the complaint, plaintiff shall state "the damages claimed for the ouster or detention, or both, which damages shall be recovered and assessed by the court or jury in the same action." Section 269: "The verdict may be for

or against either of the plaintiffs or defendants." At the inception of the suit, Thede was in the actual occupation; holding adversely to appellee; attorning to appellant as landlord. Appellant was assuming and exercising control over the property as owner; leasing it, and receiving the rents. Under the Code, both were required to be joined. Before the trial, Thede recognized the title of appellee, took a lease from him, and remained his tenant. Hence, it became unnecessary to further prosecute a suit against him for the purpose of getting the possession. Nor was it claimed that he was liable for mesne profits. As tenant, he had paid rent to appellant, and was very properly exonerated. No cause of action against him remained. At common law, the action for mesne profits followed the determination of the action for possession; was a subsequent and distinct action. Under the Code, the whole thing is required to be adjudicated in the same suit. As in this case, the party having the actual possession at the

time of bringing the suit may not be liable for profits. This condition is evidently contemplated by the statute. The actual occupant can be prosecuted to gain the possession, while the party assuming ownership can be prosecuted for the rents and profits. Upon the trial of the cause, appellant was the only defendant. The Code, as above stated, provides that where there are more than one the verdict may be against one, and in the last clause of the section it is provided: "The verdict shall also, if for the plaintiff, find the amount of the damages he is entitled to for the ouster or detention, or both." The withdrawal of Thede was, in legal effect, a disclaimer. Appellant remained as the party asserting title, and was the party who for years had collected and retained the rent; and, when appellee's right to possession was found, appellant was very properly held liable for the rents he had received. There was no error in prosecuting to judgment the suit against appellant. The withdrawal of Thede could not abate the suit as to appellant. The authorities relied upon and cited by the appellant were undoubtedly controlling, as the law existed at the time of the decisions, and in the states where made. The action and adjudication in this state are purely statutory. The Colorado case (Heckman v. Manning, 4 Colo. 545) has no application, in no way refers to an action of this kind, and was decided eight years before the passage of the act. The other authorities relied upon are decisions at common law, or upon the statutes of the respective states. None of them afford any aid in the construction of our statute.

Quite a number of errors are assigned to the refusal of the court to give the instructions asked by appellant. An examination shows them to have been in line with the contention that the suit abated as to appellant upon the release of Thede. Consequently, in our view of the law, they were properly refused. Exceptions were taken and errors assigned upon the instructions given. Taken as a whole, we think them a proper declaration of the law controlling the case, and in no respect seriously erroneous. Upon the trial it was contended that appellant asserted no right to the lots in question; that his acts and control were limited to the improvements of which he was the owner. It is evident from the testimony that a portion, at least, of the improvements, were upon the land; that he had no title to any abutting land; that the improvements could only be used in connection with the land; that ingress and egress were only possible to the principal building from the land; that the land itself was constantly used as a yard; and that the business could not be prosecuted without it. No weight could be given to such a defense. If available, a party might dispossess any owner of real estate, erect improvements on any unoccupied

property, confine his lease to such improvements, and collect the ground rent for the land, under the specious pretense of leasing his buildings. Such cannot be the law.

No serious error occurred upon the trial, to warrant a reversal. The verdict and judgment appear to be in harmony with the law, and warranted by the facts. Appellant, under pretense of owning the buildings upon the land of another, rented the whole thing, collected the rents, applied them to his own use, for years. Legally and equitably, he was required to pay over the money to the owner. The jury so fonnd, and the court indorsed the finding. Judgment was entered upon the verdict, and should not be disturbed. Judgment affirmed.

(4 Colo. App. 71)

CUMMINS v. PEOPLE.' (Court of Appeals of Colorado. Oct. 9, 1893.) CRIMINAL LAW CONSOLIDATING TWO CASES AGAINST SAME DEFENDANT DELAY IN TRIAL OF COMMITTED PRISONER-DISCHARGE.

1. Where two indictments, alike in substance and form, are returned against one person, charging him with obtaining money from two different persons at two different times, the two cases cannot be consolidated, and tried as

one case.

2. Gen. St. § 1609, provides that if any person shall be committed for a criminal matter, and not admitted to bail, and shall not be tried on or before the second term of the court having jurisdiction, he shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. Held that, where two full terms of court passed without any indictment being returned against a prisoner who was committed in default of bail, he was entitled to an absolute discharge.

Error to district court. Las Animas county. John Cummins was convicted of obtaining money by false pretenses, and he brings error. Reversed, and defendant ordered dis charged.

James McKeough, Jr., and Dixon & Dixon, for plaintiff in error. Joseph H. Maupin, Atty. Gen., and Henry B. Babb, succeeded by the present officers, Eugene Engley, Atty. Gen., and H. T. Sale, for the People.

BISSELL, P. J. This verdict, sentence, and judgment cannot be upheld, even though they are abundantly sustained by the testimony, and the punishment would be evidently righteous. In June, 1891, John Cummins, the plaintiff in error, was proceeded against, before a justice of the peace in Las Animas county, on divers charges of ob taining money by false pretenses. The justice committed him to jail in default of giving a bond of $2,000. Subsequently, habeas corpus proceedings were instituted by Cummins to secure his release, based principally on the contention that, since the crime with which he was charged was com

mitted in the carrying out of an unlawful agreement between him and the prosecuting witness, the acts could not legally be counted criminal, and he was therefore entitled to his discharge. He was unsuccessful in these proceedings, and remained in jail. The district court met in Las Animas county in September, at its regular term, and, presumably, because these habeas corpus proceedings were pending, no action was taken at that term of the court looking to the disposition of the case. Cummins was not indicted, nor was any application made for his release. This was equally true at the January term of the court. At that term a venire was issued for the grand jury, returnable at the March term. At this time the grand jury was impaneled, and on the 16th of March they returned two indictments against Cummias. The indictments were alike in substance and form, and charged Cummins with obtaining money by means of false pretenses, and in such a manner as to constitute grand larceny. In one case the money which he took was charged to be the property of one R. A. Greenfield, and to have been taken on the 23d day of October, 1890. In the other, the money was charged to have been the property of Adam Feiner, and to have been taken on the 26th day of November, 1890. The defendant made various motions to quash, asked for a change of venue in the case, and attacked the legality of the grand jury. These matters need not be considered, since the case will be disposed of on two other grounds, which are fatal to the judgment. Before the trial commenced, the district attorney made a motion to consolidate the two cases, and try them together. The court granted the motion, notwithstanding the objections of the defendant, and thereupon the trial proceeded as upon the two indictments, and evidence was introduced in support of both the charges. These are all the facts that need be stated concerning the history of the cause, and bearing on one of the main questions discussed, except as to a petition which the defendant filed at the beginning of the March term. As will be remembered, nothing was done concerning the indictment or trial of the defendant during two whole terms, to wit, the September and January terms of the district court of Las Animas county, to which he was recognized by the justice before whom the preliminary examination was had. At the beginning of the March term, Cummins filed a petition for his discharge under the habeas corpus act, on the ground that two terms of the district court had been held, and no proceedings had been taken with reference to his trial.

Cummins insists that the court erred in respect of both these matters. His contention is well founded. The court is clothed with ample power to consolidate criminal causes, wherever, under the law, the crimes

are of the sort that they may be properly joined in one indictment, and the defendant put to trial thercon. Gen. St. § 945; Mills' Ann. St. § 1452. This statute is, in reality, but an embodiment of a well-established principle of the common law, and is no broader than was that rule, unless it be in the consolidation of causes, and confers no greater power than that enjoyed and exercised prior to the enactment of the statute. This is clear from the very terms of the statute, for the words of limitation, "which may be properly joined," must evidently have been inserted as a restriction upon the general right to consolidate or join different offenses in one indictment, which otherwise the section would confer. To give the statute full force, and to give effect to all its terms, necessitates this conclusion; and it is only necessary to ascertain, by a consideration of well-settled rules, what crimes may be properly joined in one indictment. This determination will also settle what cases may be consolidated, in case different indictments are found by the grand jury. It has always been holden, with reference to felonies, that only one transaction can be embraced in a single indictment. The acts done may result in the commission of several different statutory or common-law crimes, but wherever the felonies are separate and distinct, and not provable by the same evidence, and have been committed at different times, so that they can in no sense be deemed to result from the same series of acts, they may not be joined in one indictment; and consequently, if several indictments be found, the court is powerless to order the cases consolidated. 1 Bish. Crim. Proc. (2d Ed.) §§ 448, 449 et seq.; Goodhue v. People, 94 Ill. 37; People v. Aiken, 66 Mich. 460, 33 N. W. Rep. 821; State v. Fisher, 37 Kan. 404, 15 Pac. Rep. 606; Kelly v. People, 17 Colo. 130, 29 Pac. Rep. 805. Manifestly, the felonies charged in these two indictments could not be consolidated without an infraction of this rule. The money was obtained at two different times,-in October and in November, and from two different people, to wit, Greenfield and Feiner; and there was no connection, even the most remote, between the two transactions. They were two independent felonies, which could not have been united in the same indictment, and therefore could not have been consolidated and tried at the same time. Of itself, this was a fatal error, and must reverse the judgment.

The other proposition is equally conclusive, and more unfortunate, since it must result in the discharge of the prisoner, and release him from punishment. We have in this state, (Gen. St. § 1609,) in the habeas corpus act, a provision that "if any person shall be committed for a criminal or supposed criminal matter and not admitted to bail. and shall not be tried on or before the second