legal situs of the debt. The county court re- of those parties, he certainly had full aujected this contention, and rendered a judg-thority to render whatever judgment the ment in favor of the plaintiff. After this judgment was entered the railroad company attempted to secure a review of this finding and judgment, and to that end filed a petition for a writ of certiorari under the Code. In general it may be stated that the petition for the writ recited all the facts necessary to entitle them to have it issued if this remedy were available. In addition to a statement of the history of the case, the petition averred generally that no appeal lay from the county to the district court, and that they were otherwise without a speedy, plain, and adequate remedy. The court issued the writ, and the papers were certified up. When the matter came on for hearing the court dismissed the writ without entering upon any consideration of the rightfulness of the judgment, evidently proceeding on the theory that the writ had been improperly granted, and that the railroad company was not entitled to review the proceedings in this manner. In this conclusion the district court did not err. The railroad company was not entitled to have the judgment of the county court thus reviewed. Since this is true, we need not consider the extent and character of the Iowa exemption laws, nor the question whether, under any circumstances, those statutes can have an extraterritorial force. It is quite possible that the judgment of the justice in Iowa dismissing the writ❘ of garnishment because the wages were exempt may have constituted an adjudication which would be conclusive, not only upon the assignors, but also upon the assignee, Howard. We are not permitted to decide this question, because the case is not legitimately before us. The writ of certiorari, under our practice and statute, is undoubtedly designed to be what it is defined in the act, a writ of review. Its undoubted and only legitimate purpose is to enable the party who has been aggrieved by the action of some inferior tribunal to secure a reconsideration of the judgment, and a reversal of that court's findings. It cannot be issued, however, according to the express limitations of the act,' except where the inferior tribunal is entirely without jurisdiction, and where also no appeal will lie from the judgment, and no other plain, adequate, and speedy remedy is provided by the statutes of the state. It seems to us that neither of these considerations exists. When it is conceded, as it is by the case made, that the proceedings whereby the justice acquired jurisdiction of the cause were regular, and authorized by the attachment statutes, it did acquire jurisdiction over the person of the garnishee, the railroad company, and over the debtor defendant, to the extent of the company's indebtedness to him. I the justice had jurisdiction over the persor 'Code Civil Proc. § 323. parties might show themselves entitled to by their proofs and by the law. It is not necessary, however, to rest this case upon this consideration of the possession of jurisdiction by the justice and the county court to which the case came by appeal, but it may be safely put on the undoubted ground that, if the railroad company was aggrieved by the judgment entered, because it did not accord with the law, they had a plain and adequate remedy secured to them by the constitution and the statute. Article 6 of the constitution of Colorado establishes the judicial department of the state, designates sundry courts in which the judicial power shall be vested, and gives to them certain jurisdiction and divers powers. Among the courts established by the constitution is the county court. Its jurisdiction is well defined, and its powers are adequately and fully expressed. Its judgments are, however, by that article specifically made subject to review by the supreme court of the state, likewise a tribunal established by the organic law. Section 23 of that article distinctly provides that a writ of error shall lie from the supreme court to every final judgment which the county court may render. This section is made effective by the general statutes and the practice established by the supreme court, and it is universally true that every final judgment which the county court of this state may render may be reviewed by the supreme court if a party sees fit to invoke the remedy. It would seem, then, necessarily to follow that if the county court had rendered an illegal judgment, and that upon the case made the railroad company was entitled to escape a recovery against them, this matter could have been made the subject of correction in the appellate tribunal, and the company could thereby secure their rights, and have the law correctly declared. If this be true, the remedy is a plain one. It is certainly adequate, and it is presumed to be speedy. This position derives great support from the statutes regulating the practice in county courts, and providing means of review where the case is commenced before a justice. The justice act distinctly provides that every party against whom a final judgment is rendered by a justice of the peace may take the case into the county court, and there have it tried de novo, and consequently have it reviewed. The county court act similarly confers the right on a defeated party to take any case wherein judgment has been rendered against him to the district court, where the cause may be again tried de novo, and the action of the county court thus subjected to review and reversal. This right granted by the county court act, however, unlike the justices' act, contains a limitation upon the privilege granted. That limitation is ex pressed in section 501 of the General Statutes, and when taken in connection with the antecedent section, is, in substance, that no appeal may be taken from a judgment rendered in a county court when it is entered in a case originally commenced before a justice of the peace. In other words, the plain purpose of the county court act was to give a party the right of review in the district court wherever the controversy has originated, and the judgment has been originally entered, in the county court. It did not confer the right, but expressly withheld it, where the case started before a justice. It was thus evidently the purpose of the legislature only to permit two trials of the same cause in two separate jurisdictions. We gather from this that the writ of certiorari, which is defined to be a writ of review, cannot be used to bring a case tried in the county court, but originating before a justice, into the district court for the purposes of determination. As already stated, this conclusion is supported by the antecedent consideration that the party is otherwise provided with a remedy both plain and adequate. Taken together, they necessitate the conclusion that the writ should not have been issued originally, and that it was properly dismissed. Since the action of the district court harmonizes with our conclusions as to the law, this judgment must be affirmed. (4 Colo. App. 14) GODDING v. COLORADO SPRINGS LIVESTOCK CO. (Court of Appeals of Colorado. Nov. 13, 1893.) RES JUDICATA-STRIKING OUT SUPPLEMENTAL ANSWER-DAMAGES-BREACH OF CONTRACT. 1. Where an action by the assignee of a nonnegotiable contract was tried on issues, raised by defendant, of fraud by the assignor in its procurement, a judgment for the assignee was a bar to a subsequent action by defendant against the assignor on the same contract, and the privity of contract between the assignor and assignee rendered unnecessary the identity of the parties to the two actions. 2. Where a defendant, under leave of court, filed a supplemental answer, another judge could not order it stricken from the files be cause not filed in apt time, nor because the case was set for trial before the leave was granted and the answer filed. 3. In an action for misrepresentations as to the condition of the water supply on defend. ant's ranch, it appeared that plaintiff's agents visited the ranch, and knew the condition of the water, before placing a herd of cattle thereon; that they had exclusive charge of the cattle while on the ranch; and that an abundance of pure, running water was accessible, within half a mile. Held, that defendant was not an insurer of the herd, and chargeable with the value of all cattle which died as a result of the insufliciency or unwholesomeness of the water on the ranch. Appeal from district court, El Paso county. Action by the Colorado Springs Live-Stock Company against John E. Godding for breach of contract, and false representations in its procurement. Judgment for plaintiff. Defendant appeals. Reversed. The other facts fully appear in the following statement by REED, J.: Appellant, in 1888, being in control of an alfalfa ranch in Weld county,-the title be ing in his father,-entered into a contract with appellee, which was engaged in handling and feeding cattle, to sell to it the hay produced upon the ranch for three years, from 600 to 1,200 tons per year, to be by appellant put in stack. Appellee was to receive the hay so stacked upon an agreed standard of measurement, and pay $5.50 per ton. Appellee was to have the pasturage of the place, and feed and keep the cattle upon the ranch. The hay was measured and accepted by appellee in the fall of 1888, and in December cattle estimated at 1,000 in number were placed on the ranch, under the care of the agents and employes of appellee, and remained until the crop of hay was consumed, when they were removed to another place. The hay was paid for by appellee, and it does not appear that any claim of violation of contract or false representations on the part of appellant was made by appellee until some time subsequent. The greater part of the price of the hay was paid in the spring, long after the supposed wrongs and injuries occurred, but no attempt was made to set off or recoup the alleged damages, and this suit was brought to recover them. It was alleged that appellant contracted that the hay should be of good quality; that some of it was not properly cured, and spoiled in the stack; that some of it was cut so late it was injured by frost, and unfit to feed; that appellant represented that there was a plentiful supply of running stock water continuously upon the place, and would continue through the winter, when in fact the water was deficient in quantity, and unhealthy and unfit in quality; that appellee had no knowledge of the facts, but, relying upon the representations of appellant, entered into the contract; that by reason of the bad quality of the hay, and want of an adequate supply of good water, it lost a large number of cattle, indefinitely estimated from 350 to 500 head. It appears appellee had no definite knowledge of the number placed upon the ranch, the number that died, or the number of surviving cattle removed; and although the food upon the Godding ranch was exhausted, and the cattle removed to another place, the estimate of loss appears to have been made in the spring following. The cattle were put on the Godding ranch in December and January, remained there about three months, were then removed to Matthews' ranch, near by, and remained about two months. The condition of Matthews' ranch as to water supply was about the same as at Godding's; hay, about the same quality. It is shown that the supply of water on the Godding ranch was inadequate, by reason of severe freezing; also, that, at a distance of from one-fourth to one-third of a mile, was Idaho creek, in which there was an abundance of water, and to which the stock had access. It is alleged that by reason of want of water and poor hay, 192 head of stock died upon the Godding ranch, and 150, afterwards, upon the Matthews ranch. Defendant answered, denying the allegations of the complaint. Afterwards, leave was obtained, and an amended answer filed, alleging that in December, 1888, appellant assigned his contract with appellee, by and with its consent, to T. F. Godding; that in the fall of 1889 T. F. Godding had put up the hay crop of that season, as required by contract, notified appellee, and required it to measure up and receive the hay, which it declined to do, and gave notice of its rescission of the contract; that in February, 1891, T. F. Godding brought suit upon the contract for damages sustained; that defendant (appellee) answered, setting up the facts and allegations contained in the complaint in this case, as appears upon examination; that, upon the trial of the issues so made, plaintiff obtained judgment, from which an appeal was taken to this court, where the judgment was affirmed; alleging, also, that "all and every matter and thing involved in this action was fully adjudicated and determined, both as between the said plaintiff, T. F. Godding, as well as the plaintiff and John E. Godding." On June 8, 1892, plaintiff (appellee) filed its motion to strike the supplemental answer from the files "because the same was not filed in time; that no showing had been made to warrant the answer, and that it was filed after the case was set for trial." The motion was sustained, the answer stricken out, trial had upon remaining issues by a jury, resulting in a judgment for plaintiff of $5,400. Numerous errors are assigned; those relied upon in argument being the striking out of the answer, the refusal to allow certain testimony of the defendant, and the instructions given and refused. Carr & Secor, for appellant. J. W. Mc-Creery and Wm. Harrison, for appellee. REED, J., (after stating the facts.) This case is peculiar, in one aspect of it, showing the extent to which results are influenced by the place of trial. T. F. Godding brought suit upon the contract, for its breach, in Weld county, where he resided. Appellee brought suit in the county of its residence, El Paso, against John E. Godding, on matters pertaining to the same contract. In the first, plaintiff obtained judgment for over $2,000; in the latter, plaintiff obtained this judgment for $5,400. An examination of the allegations in appellee's answer in the first, and the allegations of its complaint in the latter, show them to be identical. Hence, we have the anomaly of the same issues being tried twice in different courts, with the differing results stated. The whole policy of the law is against the retrial of issues once determined by a court of competent jurisdiction. Such has been the well-settled and unquestioned policy from the leading case of Outram v. Morewood, 3 East, 346, to the present time. Duchess of Kingston's Case, Smith Lead. Cas. 424. See Cooley, Const. Lim. 47; Ram. Leg. Judgm. c. 14; 2 Phil. Ev. 50, and note; Young v. Black, 7 Cranch, 567; Williams v. Hacker, 16 Colo. 113, 26 Pac. 143. "The rule in these cases is that a point once adjudicated by a court of competent jurisdiction may be relied upon as an estoppel in any subsequent suit in the same or any other court, at law or chancery, where either party, or the privies of either party, allege anything inconsistent with it." Aurora City v. West, 7 Wall. 82. The contract was made by John E. Godding; was by him assigned to T. F. Godding, as alleged, with the knowledge and consent of appellee. It was a nonnegotiable instrument. The assignee took it subject to all the existing infirmities, including the alleged fraud in its procurement, which if established, would destroy it. The privity required by law existed by the relation the two Goddings bore to each other, and the subject-matter of the contract. It is claimed in argument by appellee that the judgment in Weld county could not operate as a bar, because the parties were not identical. It is not necessary that the parties should be identical, according to the rule laid down in Aurora City v. West, supra, where it is stated that privity is sufficient. On this point, authorities are numerous. See Herm. Estop. § 152; Emery v. Fowler, 39 Me. 326; Jennings v. Sheldon, 44 Mich. 92, 6 N. W. 96; Wells, Res Adj. § 16; Dunham v. Bower, 77 N. Y. 76; Woodhouse v. Duncan, 106 N. Y. 527, 13 N. E. 334. The right of T. F. Godding to recover was dependent upon the right of John E. to recover, had there been no assignment. In order for John E. to recover, with the issues of fraud and misrepresentation, he must overcome the allegations of the answer. So must T. F. Godding. The question was not whether John E. was a party, but whether the same questions had been adjudicated in a controversy pertaining to the same transaction. The identity of the issues to be tried being established by an examination of the respective records, the answer should have been allowed to remain, and a trial had, as parol proof was clearly admissible to establish the proceedings had upon the former trial, and the part taken by John E. Leave having been obtained of the court, and entered of record, and the answer filed, such leave being discretionary with the court, another judge could not order it stricken from the files at a subsequent date because not filed in apt time. Nor was the fact that the case had been set for trial prior to the leave and filing of the answer of any im portance, as it could have been vacated at any time, if necessary. The answer was sufficient in form and substance to raise the question of a former adjudication. The policy of the law is clearly against a second adjudication of the same questions, and the court erred in striking the answer from the files. It is very doubtful whether, under the authorities, a cause of action is shown by the complaint. It was found that no cause of action accrued in regard to the quality of the hay. The only remaining cause of action was the alleged misrepresentation in regard to the water supply. It would appear that the agents of appellee, when placing the cattle there, found the supply adequate, and as represented. Consequently, if appellant was to be held, it must have been upon the allegation that he represented it would remain adequate. Under the authorities, it is doubtful if such misrepresentation is actionable. It is perhaps the mere expression of an opinion, for which a person cannot be held responsible. The case seems to have proceeded upon the theory that he was an insurer, which was clearly not the case. Had he been, the suit must have been on the warranty, and not on the tort. These are suggestions made for the guidance of the court in case of retrial. Mere expressions of opinion are not false representations. A misstatement, to be actionable, must relate to existing facts peculiarly within the knowledge of the party. Stimson v. Helps, 9 Colo. 33, 10 Pac. 290; Adams v. Schiffer, 11 Colo. 29, 17 Pac. 21; Cooley, Torts, 474-486; 1 Hil. Torts, c. 1, § 4; Sawyer v. Prickett, 19 Wall. 146; Cooper v. Schlesinger, 111 U. S. 148, 4 Sup. Ct. 360; 1 Perry, Trusts, § 173. The following instruction was given by the court, and an exception taken: "If the jury find the issues for the plaintiff, as explained above, then the measure of damages is the reasonable market value of the cattle lost, as shown by the evidence, if any were lost, by reason of the insufficiency or unwholesomeness of the water aforesaid, and also the difference in value, if any, between the herd, as wintered, and as recovered and driven away by the plaintiff, and the value thereof if the same had been properly sup plied with good water, in sufficient quantities." The measure or rule of damages is incorrect. The instruction should not have been given. Neither appellant nor his assignee were insurers of the lives or health of the herd. The agents of appellee, before placing the cattle upon the ranch, visited it, measured and accepted the hay, knew the character and condition of the water supply, and, with knowledge of all of these facts, placed the herd there, some two months later, in charge of its own agents and employes. There was an abundance of running, pure water accessible, within less than half | a mile. Appellee could not subject its cattle to death from thirst or poison from the impurities of the water, look on, and sce the whole herd die from inattention, and collect its value as damages. When it was found either that there was a breach of contract, or it was the victim of false representations, it should either have supplied the cattle by driving to water, or have rescinded the contract, and moved to proper quarters. In one case the increased cost and inconvenience in watering and feeding would have been the measure of damage; in the other, the cost of moving, and the extra cost of hay and feeding facilities over the contract price. No rule of damages making the contractor an insurer of the herd, and charging him with the value of all dead cattle, can be correct, when the stock at no time was under his control, or subject to his directions. The judgment must be reversed, and cause remanded for a new trial. (19 Colo. 199) WILSON et al. v. PEOPLE, to Use of PUEBLO & A. V. R. CO. (Supreme Court of Colorado. Nov. 22, 1893.) CLERK OF COURT-LIABILITY OF ON BOND. Where the clerk of court, as such, deposited, with a bank in good standing, moneys paid into court pending litigation, he is not liable on his official bond for the amount so deposited on failure of the bank. Appeal from district court, Fremont county. Submission, without action, of a controversy between the state of Colorado, to the use of the Pueblo & Arkansas Valley Railroad Company, as plaintiff, and John Wilson, S. W. Humphrey, C. S. Topping, and J. H. Harrison, as defendants, to determine defendants' liability on the official bond of the clerk of the district court. There was judgment for plaintiff, and defendants appeal. Reversed. This case was submitted without suit upon the following agreed statement of facts: “(1) The defendant John Wilson was, during the time hereinafter stated, and is now, the duly appointed and acting clerk of the district court of Fremont county, Colorado, and the defendants S. W. Humphrey, C. S. Topping, and J. H. Harrison are the sureties on his official bond as such clerk, a true copy of which, with the indorsements thereon, is herewith attached. (2) At various times during the year 1887 the plaintiff, the Pueblo and Arkansas Valley Railroad Company, a corporation organized under the laws of the state of Colorado, and then constructing a line of railroad through Fremont county, paid over to the defendant Wilson, as such clerk, various sums of money fixed and determined by the judge of the said court by rules entered in certain condemnation proceedings for right of way then pending in the said district court, as deposits pending the ascertainment of damages, and to authorize the company to take possession of the right of way pending the proceedings, as provided by section 6 of the eminent domain law, (Code Civil Proc. p. 77.) These moneys were deposited by the defendant Wilson, as received, to his credit as clerk of said court, in the Exchange Bank of Canon City, a private, unincorporated banking institution then doing business at said Canon City, in said county, and reputed to be solvent. (3) The said Exchange Bank has failed in business, and its depositors have not been paid. The condemnation proceedings referred to have all been concluded by final decree vesting title in the railroad company, and, of the moneys so paid by the railroad company to the said clerk as deposits, the company is entitled to receive back as an excess of the amount so deposited, over and above the amounts finally awarded as damages, the sum of $2,997.20, which has not been paid. (4) Query, are the clerk and the sureties on his bond liable to the railroad company for the payment of this money? If yes, let judgment be entered in favor of the plaintiff against the defendants for, the amount aforesaid, with interest from date of suit; if no, let judgment be entered for the defendants for costs." The bond above referred to and indorsed upon this statement is as follows: "Know all men by these presents, that we, John Wilson, as principal, and S. W. Humphrey, C. S. Top ping, and J. H. Harrison, are held and firmly bound unto the people of the state of Colorado in the penal sum of five thousand ($5,000) dollars, for the payment of which sum of money we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed and dated this twenty-fourth day of May, 1886. The condition of the above obligation is such that, whereas, the above-bounden John Wilson has been appointed clerk of the district court of the third (3d) judicial district of the state of Colorado, within and for the county of Fremont, now, therefore, if the said John Wilson shall faithfully perform all the duties of said office as prescribed by law, that he will punctually pay over to the person legally authorized to receive the same all moneys that may come into his hands by virtue of the said office, and shall deliver to his successor in office all records, books, papers, and other things belonging to his said office, then the above obligation to be null and void; otherwise, to remain in full force and effect. John Wilson. [Seal.] S. W. Humphrey. [Seal.] C. S. Topping. [Seal.] J. H. Harrison. [Seal.]" The court below rendered judgment upon this agreed statement of facts in favor of appellees, and against the appellants, for the sum of $3,180.36 and costs. To reverse this judgment, the defendants bring the case here on appeal. Macon & Macon and D. P. Wilson, for appellants. Charles E. Gast, for appellee. v.34P.no.12-60 GODDARD, J. From the agreed facts it appears that the money was lost through no fault of the clerk. He deposited the money in a bank of reputed solvency, as clerk of the court, and in doing so acted as prudent men ordinarily do with their own funds. The judgment of the court below must therefore be upheld, if at all, upon the principle that the conditions of his official bond imposed upon him an absolute obligation to pay the money when required, and that no exercise of diligence on his part will exonerate him from such obligation. Such is the contention of counsel for appellee, and for its support he relies on the case of U. S. v. Prescott, 3 How. 578, decided by the supreme court of the United States in 1844, as the leading case, and several other cases in that court, as well as some decisions by state courts, which approve and follow the doctrine therein announced. In these cases in which the rule contended for was sustained, the court had under consideration the liability imposed by the official bond of receivers of public money, and the conclusions arrived at were influenced largely by considerations of public policy. Whether the case at bar is sufficiently analogous to these cases to bring it within the rule therein announced it is unnecessary to decide, since the supreme court of the United States, in a later case, has very much modified, if it has not in effect overruled, the extreme doctrine laid down in its earlier decisions. In the case of U. S. v. Thomas, 15 Wall. 337, Justice Bradley, in speaking of the leading case of U. S. v. Prescott, supra, said: "After reciting the condition of the bond, the court adds, with a greater degree of generality, we think, than the case before it requires: "The obligation to keep safely the public money is absolute, without any condition, express or implied; and nothing but the payment of it, when required, can discharge the bond.' This broad language would seem to indicate an opinion that the bond made the receiver and his sureties liable at all events. * And as the money in the hands of a receiver is not his, -as he is only custodian of it,-it would seem to be going very far to say that his engagement to have it forthcoming was so absolute as to be qualified by no condition whatever, not even a condition implied in law." And after reviewing the principal cases relied on by appellee he further said: "So much stress has, in almost every case, been laid upon the bond as forming, either directly or indirectly, the basis of a new rule of responsibility, that it seems especially important to ascertain what are the legal obligations that spring from such an instrument. The learned judges in the great generality of the remarks made in some of the cases referred to, with regard to the liability of a receiving officer, and especially of his sureties, by virtue of his bond, have evidently overlooked what we conceive to be a very important and vital distinction between an absolute agreement to do a thing |