the building should not be constructed until after the tenth of November, 1875, and that the building was constructed in a manner otherwise than according to the contract, and was not completed until after November 10, 1875, without the consent of defendants, Hallack Bros.

Upon the issues thus formed the case came to trial in Albany county, where it had been taken by change of venue by Hallack Bros., and was tried by the court without a jury on the thirtieth and thirty-first days of March, and the first and second days of April, 1881. The plaintiff, to maintain the issues on his part, put in evidence the bond sued on and said building contract, and they were received without objection. The defendants, Hallack Bros., then produced certain evidence. The plaintiff then furnished certain rebutting evidence. On the fourth day of August, 1881, the court announced and filed its decision, with findings of law and fact; to each and all of which findings, and the order for judgment thereon, the defendants excepted. Hallack Bros. then filed a motion for a new trial on the fifth of August, 1881, setting forth sixty-seven grounds therefor. Said motion for a new trial was overruled on the twenty-fourth day of August, 1881, to which Hallack Bros. excepted, and a bill of exceptions was allowed and signed on the said twenty-fourth day of August, 1881. At the February term, 1881, and on the second day of April of said term, an order was made and entered giving the parties until and including the first day of the next term of the court to reduce all exceptions to writing which were taken on the trial of the cause. On the fourth day of August, 1881, the same day on which the finding and decision of the court in the case were made and filed, judgment was entered in favor of Bresnahen, and against Hallack Bros., for five thousand dollars.

In examining the mass of matter contained in this record, we find that the merits of the case may be properly disposed of by deciding the questions involved in the motion to amend the answer by adding what is called the seventh defense, and growing out of the alleged waiver of his rights under the bond sued by the defendant in error, as set forth in the second and third defenses.

Upon the third day of the trial, and after the greater part of the evidence had been introduced, the plaintiffs in error moved to amend their answer by adding the following at the end of it: "For a seventh answer thereto, defendants say that after the making of said contract, and during the construction of said building, the plaintiff, without the consent of these defendants, made payments to and for the use of the defendants Dawson & Hawes, on account of the construction of said building, in advance of the time specified in said contract for the payment" thereof.

This defense was ably and thoroughly argued, and had it been pleaded in the right time and manner, and sustained by proof, it might have been a bar to the action. But to give plaintiffs in error a right to this proposed amendment to their pleading at that stage of the trial, they should have shown affirmatively that they did not kuow of the defense before. For aught that appears in the record, they may have known this before the trial. Counsel say in their argument in this court that they did not know it. But the record does not show that the court was in any way properly advised of that fact.

On the contrary, the inference is strong from the cross-examination of Bresnahen, on the two hundred and fifteenth page of the transcript, that plaintiffs in error knew of that defense before the examination of Bres

nahen, for the attorney who conducted that cross-examination for them first disclosed in a question to Bresnahen that there had been a discount of fifty dollars. It was not Bresnahen who disclosed that fact to him. He must have learned it from his clients.

As to the alleged waiver, the district court found as a matter of fact that the plaintiff neither excused nor waived a strict performance by Dawson & Hawes of the contract, nor induced the sureties to believe that he had so done, or had waived, settled, or discharged any claim for the want of such performance.

The question upon this finding is not whether it is sustained by a preponderance of the evidence, but whether it is so much against the weight of the evidence as on the first blush to shock the sense of justice. While it is true that there is considerable evidence on the question in favor of the plaintiffs in error, it is also true that there is strong evidence on the other side. The testimony of the defendant in error himself is very decided and positive, and it is sustained by part of the testimony of Durbin, and by other facts and circumstances in evidence. It is proved that he not only occupied the building for business, but that both he and his nephew slept in it from the time it was finished, and that they were lodging in it when it fell. These facts can hardly be reconciled with the belief that he knew how insecure the building was, owing to the bad material put in it by Dawson & Hawes. The testimony as to what was said and done by the parties when Bresnahen objected to Dawson & Hawes putting poor brick in the building, and one of them promised him it should not be done, shows that he did not intend to waive his rights under the contract and bond. As to the bad mortar which, according to the testimony, more than the unsuitable brick was the cause of the falling of the building, there is but little evidence to show that he knew its true character till after the building fell. He says positively that he did not.

When a man contracts to build a house upon the land of another of suitable materials and in a workmanlike manner, and violates his contract, either as to the work or materials, to the substantial injury of the other, the party injured may either refuse to pay the contract price of the building to the amount to which he is damaged, or he may pay for and take possession of the building and then sue and recover of the builder the amount of his damages. And he can recover whether he knew of the breach of contract by the other party at the time of payment or not. In neither case is there any waiver of his rights under the contract. Where there is a bond, as in this case, the only limit to his right to recover is the five years prescribed by the statute of limitations.

The theory of the plaintiffs in error seems to be that though this may be true of the principals, the sureties on the bond were released by the conduct of the defendant in error, and especially by his making the last payment and occupying the building without objection till it fell.

An examination of the testimony of E. F. Hallack, one of the sureties and plaintiffs in error, leads us to the conclusion that he must have known quite as much about the materials that went into this building as Bresnahen. He was an experienced builder, had built several houses in Cheyenne, and knew what kind of materials were necessary to the erection of a good building there. He was there about the time this building was begun, when it was finished, and immediately after it fell, and probably during the time of its construction. He furnished part of the

materials, and was interested to have the final payment made by Bresnahen to Dawson & Hawes, so that he might get his money for the materials he had furnished. He seems to have been there at that time for that purpose, and, as a matter of fact, did then get his money. It may be that his interest in the building was one reason for his executing the bond. The Hallacks, as sureties on the bond, were deeply interested pecuniarily in a proper construction of the building. They were under obligation to know the character of the materials used in its construction, and had ample opportunities of learning all about it. The doctrine of constructive notice and of waiver applies to them quite as strongly as to Bresnahen. The reasonable inference from their conduct is, that they consented to the final payment in order to get their share of the money, and took their chances of whatever might afterwards happen from its bad construction.

At the close of their argument upon the defense of waiver, plaintiffs in error claim, but do not very strongly insist, that defendant in error is estopped by his conduct from recovering in this action. But an estoppel can not be founded upon words or acts or silence, unless they were intended to lead the party who seeks to set up the estoppel to act upon them, and he did act upon them, and act to his injury. In this case no estoppel is pleaded and none is proved. Or, rather, if there be any estoppel in the case, plaintiff's in error are estopped by their silent acquiescence in Bresnahen's making the final payment to Dawson & Hawes, and their prompt action in taking their share of the money. Had they objected to that payment, they might perhaps have made out an estoppel pro tanto.

For reasons suggested above, we decline to go into any further discussion of this case. Before the close of the trial in this court, the greater part of the errors assigned were either expressly or by implication abandoned. It is evident, from the argument upon the two principal defenses we have been considering, that plaintiffs in error relied principally upon them. Upon one of them, the defense of waiver, the argument was exceptionally lengthy, earnest, able, and determined. These two principal defenses are so far decisive of the case that plaintiffs in error would be entitled to a reversal of the judgment if they had sustained either of them. On the other hand, failing in both, they could not succeed, for they involve the entire defense. But be that as it may, this court, after careful consideration of all the errors assigned and insisted upon in argument, feels constrained to say that the court below committed in the trial and decision reached in this case no such error as can or ought to vitiate or reverse the judgment rendered below and now here under review.

The judgment of the district court in overruling the motion for a new trail is affirmed.

All concur.

No. 9-5

DONOVAN V. THE TERRITORY OF WYOMING.

Filed February, 1884.

GRAND JURORS-CERTIFICATE OF DRAWING.-Where the certificate of the county clerk, sheriff, and justice of the peace recited that certain named persons were "drawn to serve as grand and petit jurors at the September term of the third judicial district of the territory of Wyoming, to be held at Sweetwater county," the omission of the word "court" from such certificate will not vitiate an indictment found by such grand jurors. A WRIT OF ERROR TO REVIEW THE JUDGMENT of the district court in criminal cases will be allowed only when the appellate court is satisfied, from an inspection of the transcript of the record, that error has been committed.

PETITION for a writ of error to the district court for Carbon county. The opinion states the facts.

Blake & Brown, for the plaintiff in error.

Merrill & Corlett, for the defendant in error.

SENER, C. J. Leroy Donovan, alias Jack Lee, by counsel, applies by petition for a writ of error to a judgment and sentence of death, rendered against him in the district court in and for the third judicial district, sitting in and for Carbon county, on the twenty-third of October, 1883, in order to bring the case, as shown by the record, into this court for review. There is filed with said petition, and made a part of it, a tran-` script of the record. From an examination of said transcript it appears that a motion for a new trial was made in the court below on the eighteenth of October, 1883, which was argued and denied, and to the court's order of denial an exception was taken, and there the matter ended. There was no bill of exceptions taken, and no time was asked for in order that a bill of exceptions might be prepared and presented. The district court for the county of Carbon has adjourned for the term, and it is now too late to bring the evidence and any record into this court for review, save such as is presented in the transcript before us.

The only question which the record presents is the action of the court below in sustaining a demurrer to a plea in abatement to the indictment. The ground on which it was sought to avoid the indictment by plea in abatement was, as shown by the record, this: The certificate of the county clerk, sheriff, and justices of the peace, as returned to the clerk of the district court, certified certain named persons "drawn to serve as grand and petit jurors at the September term of the third judicial district of the territory of Wyoming, to be held in Sweetwater county, September 17, 1883," the word "court" being omitted from the certificate.

It is not pretended that the jurors, grand and petit, were not drawn as required by law, but for this defect, i. e., the omission of the word "court" after the word " district" in the certificate, it is claimed that the indictment should have been abated. The certificate shows the drawing was had in the clerk's office of the county clerk of Sweetwater by the county clerk, sheriff, and two justices of the peace.

We judicially know that the first day of the term of court for that county was on the seventeenth of September, 1883, and that under the laws of this territory there was no other court in that county at that time for which jurors, grand and petit, or grand or petit, could have been drawn, except the district court for Sweetwater county, in the third judicial district, which court, by the laws of this territory, had jurisdiction of offenses such as the one charged in the indictment against this convict.

The trial court properly disposed of a demurrer to this plea in abatement to the indictment by sustaining it, even if it be conceded that this was the proper way to reach and to take advantage of such an objection.

Sections 188, 189, 190, and 191 of the compiled laws point out how criminal cases on writs of error may be brought into this court for review, and provide that writs of error may be allowed by this court, or any two judges thereof, in cases punished capitally, for good cause shown. Here there is not only no good cause shown, but absolutely no cause.

It is provided by section 1869 of the revised statutes of the United States that writs of error shall in all cases be allowed from the final decision of the district courts, under such regulations as may be prescribed by law. The regulations to be prescribed by law, we take it, mean the rules of law by which this right is to be exercised. It does not mean that every criminal shall have the right to suspend and supersede the judgment of a district court, for such judgments import verity, and that they were correctly rendered, until the contrary be affirmatively shown. It means that where a criminal feels aggrieved, he may file, as in this case, a transcript of the record, together with his petition, which the court or judges shall inspect, and if there shall seem, upon such inspection, to be error in the record which should be reviewed, then the supreme court, or judges, will allow the writ of error, suspend the execution of the sentence, order argument, and fully consider the case. In civil cases, the writ of error is a writ of right, because no party can supersede a judgment in a civil case until he, she, or they shall have executed an undertaking, with good and sufficient security, to pay all costs, interest, and damages to the extent of five per cent., if it shall turn out that there was no good cause for suing out such writ of error and having the case determined in the appellate court, or if it shall appear to an appellate court that the writ of error was prosecuted for delay only. If, in criminal cases, judgments and sentences of the district courts could be superseded and suspended at the whim of criminals, or merely at the suggestion of counsel, it is not hard to see that the criminal code of the territory might easily be set at naught.

Such was never the intention of congress or the territorial legislature, and its legislation is in harmony with the law of congress. We have no hesitation in pronouncing such an act as that of this territory regulating writs of error in criminal cases to be in the line of legislation contemplated by congress as the regulation prescribed by law governing such writs of error. This court, acting under it, are unanimously of opinion that there is no error in this record, and not only no good cause shown, but no cause shown why a writ of error should be granted. Writ of error unanimously denied.

All concur.