ABANDONMENT: See WATER RIGHTS.
1. ACTION ON INJUNCTION BOND.-An action lies upon an undertak-
ing in injunction against the principal and surety or sureties, without
previous adjudication awarding damages against the principal. Lynch
v. Metcalf, 131.
2. ACTIONS ON OBLIGATIONS BEFORE MATURITY.-The general rule
that the maturity of the obligation is as essential as the existence of
the debt to enable the plaintiff to bring suit, must control his right to
recover, unless the case be brought within the statute permitting suit
on an unmatured debt. Woods v. Tanquary, 515.
3. CAUSE OF ACTION.-An action for dissolution of a partnership and
accounting cannot be maintained when it appears that, by the acts of
the parties, the partnership relations, if any existed, had been dissolved
and an accounting had. Gibson v. Glover, 506.
4. RIGHTS ASSIGNABLE.-Almost every surviving right of action may
be assigned so as to enable the assignee to maintain an action thereon
in his own name. Reddicker v. Lavinsky, 159.
5. STATUTORY ACTION-CONDITIONS PRECEDENT.-To entitle a settler
upon the public lands of the United States to maintain any of the actions
mentioned in section 8 of chap. 90, Gen. Stats., he is required, as condi-
tions precedent, to have his claim marked out so that the boundaries
thereof may be readily traced and the extent of such claim easily known,
and to be in actual occupancy of the claim or to have made improve-
ments thereon to the value of one hundred dollars. Martin v. Pittman,
220.
6. STATUTORY ACTION, HOW MAINTAINED.-A statutory action can-
not be maintained, except by showing a strict compliance with the re-
quirements of the statute. Ib.
1. COSTS.-Administrators are not chargeable with the costs incurred
in a controversy between persons claiming to be distributees of the
estate when there is nothing to show that they precipitated the contest,
or in any way exceeded, in their official capacity, the limit of their
duties. Church v. Eggleston, 239.
2. FUNERAL EXPENSES.-The estate of a deceased person is respon-
sible for funeral expenses. Hulbert v. Walley, 250.
3. SAME.-The failure of the administrator to inventory the property
belonging to the estate of the decedent does not render him or his
estate liable for the payment of the decedent's funeral expenses. Ib.
4. JURISDICTION.-The county court has jurisdiction to order an ad-
ministrator to bring into court funds in his hands belonging to the
estate. People v. County Court, 425.
5. PRACTICE. When an administrator asserts a claim which in any-
wise tends to diminish the estate, he should procure the appointment
of a representative of his trust. Fetta v. Vandevier, 419.
6. WIDOW.-A widow is not primarily responsible for the payment
of a claim against the estate of her deceased husband. Hulbert v. Wal-
ley, 250.
1. AGENT.-An agent necessarily has a principal, and is bound to know
who it is. Benjamin v. Mattler, 227.
2. AUTHORITY.-A servant can have no implied authority to do that
which it could not be lawful under any circumstances for either him or
his employer to do. Sagers v. Nuckolls, 95.
3. SAME.-It is not enough that the act should be for the benefit of
the master, but it must be in the ordinary course of business in order
that an authority to do it may be implied. Ib.
4. SAME.-No one is bound by the acts of an agent beyond the scope
of his authority, nor by the acts of one who, without authority, assumes
to be an agent. Gauthier Decorating Co. v. Ham, 559.
5. ESTOPPEL.-One who knowingly permits another to clothe himself
with apparent authority, or who recognizes and adopts the acts of
another who has assumed to be his agent in such a manner as to induce
third persons to deal with the apparent agent on his credit, is estopped
to say that such party is not his agent, possessed of the requisite au-
thority. Ib.
6. EVIDENCE.-To establish an agency, in the absence of better evi-
dence, it is common practice to resort to facts which tend to show rec-
ognition by the principal of the alleged agent's authority. Of this
nature are communications between the principal and agent in which
the authority of the latter is expressly or impliedly admitted. Arthur
v. Gard, 133.
7. SAME. The statements and representations of an agent made in
reference to an act which he is authorized to perform, and while engaged
in its performance, are binding upon the principal. They are part of
the res gesta. U. P. R'y Co. v. Hepner, 313.
8. GENERAL AGENT.-A person who is employed to manage a hotel is
a general agent within the scope of the employment, and his principal
is bound by his transactions properly pertaining to that business, but
not by his acts beyond these limits. Fisk v. Greeley Electric Light
Co., 319.
9. SAME. The manager of a hotel, to incur any responsibility on be-
half of his principal for the removal of old apparatus and fixtures, and
replacing them with new, must have special authority from him for that
purpose.
10. MINING PARTNERS.-A contract to engage in the business of pros-
pecting for and developing mining property, for the joint use of all, is
in the nature of a partnership agreement, and under such an agreement
each party thereto becomes the agent of the other in prosecuting the
joint adventure. Abbott v. Smith, 264.
11. RATIFICATION BY ADOPTION.-A party may not accept what has
been done for him by one who is not his agent, and deny the power of
the individual to act. If he adopts the acts by accepting the benefits of
the transaction, he will be charged with a responsibility for the things
done. Markell v. Matthews, 49.
12. RESPONSIBILITY.-An agent, to place a loan, is charged with the
duty of a prudent and careful execution of his trust, and is responsible
to the loser, if by his negligence the party loaning the money is induced
to part with it on the strength of invalid or worthless securities. Pettit
v. Thalheimer, 355.
13. SAME. That the agent was imposed upon by another whom he
trusted to transact the business in his behalf, affords no defense. Ib.
AGISTER'S LIEN: See LIENS.
AGREEMENTS: See CONTRACTS.
AMENDMENTS: See PRACTICE IN CIVIL ACTIONS.
1. STATUTORY CONSTRUCTION.-The statute (Mills' Ann. Stat., sec.
4444), providing that a municipal corporation may take an appeal and
have a writ of error made a supersedeas without bond, has no reference
to an appeal from the county to the district court. Pueblo v. Jack-
son, 522.
2. SAME.-A municipal corporation cannot appeal from the county
court to the district court without bond. Ib.
EFFECT OF.-An appearance by a corporation is, for the purpose of
the action, conclusive evidence of its legal existence. Gauthier Decorat-
ing Co. v. Ham, 559.
1. DEAD ISSUES, NOT DECIDED.-Where the disputes between parties
have been settled pending appeal, the court will decline to determine
any of the questions upon the record, and will dismiss the appeal. Hun-
ter v. Dickinson, 372.
2. EXCEPTIONS-Where no exceptions were taken to the instructions
given and they are not embraced in the record, an objection that the
court erred in its instructions will not be considered. Lewis v. Dodge, 59.
3. SAME.-Erroneous action of the court below, which was made with-
out objection and to which no exception was reserved, does not warrant
a reversal. Taylor v. Buckley, 79.
4. IMMATERIAL ERROR.-Where the trial was to the court without a
jury, and there was sufficient competent testimony to support the find-
ing and judgment, there cannot be a reversal because the court erred in
permitting to be brought to its attention incompetent evidence, for it
will be assumed that this did not influence its conclusion. Markell v.
Matthews, 49.
5. SAME.-Mere irregularities, resulting in no harm to the appellants,
do not warrant a reversal. Putnam v. Lyon, 144.
6. JUDGMENT.-A judgment under review does not rest upon the rea-
sons assigned by the court below. McDonald v. McLeod, 344.
7. SAME, WHEN reversed.—Where the verdict is clearly and mani-
festly against the evidence, it will be set aside in furtherance of justice.
Abbott v. Smith, 264.
8. SAME.-Where the evidence does not tend to support the finding,
the judgment will be set aside as being against the evidence. Ib.
9. SAME.-Where there is an entire absence of proof of a fact which
must be established to entitle the plaintiff to recover, the judgment will
be reversed. D. & R. G. R. R. Co. v. Morton, 155.
10. SAME, WHEN NOT REVERSED.-There are few exceptions to the
general rule that appellate tribunals will not disturb judgments because
of the insufficiency of proof, where they rest upon conflicting testimony
and there is enough in the record to support the conclusion. Amter v.
Conlon, 185. See, also, Taylor v. Buckley, 79; Pierson v. Wilton, 130;
Thorne v. Schumaker Piano Co., 183; D. & R. G. R. R. Co. v. Morrison,
194; Fist v. Fist, 273; Hughes v. Coors, 303; City of Pueblo v. Pinck-
ney, 384; Jones v. Sullivan, 406; Buno v. Gomer, 456; Beard v. Bliley,
479; McGranahan v. Barber, 509; U. P. Ry. Co. v. McCarty, 530.
11. OBJECTIONS.-An objection to testimony will not, in general, be
considered in a court of review, unless the record shows that the grounds
of such objection were fairly presented to the trial court. It is only
where the testimony is wholly inadmissible for any purpose that a gen-
eral objection will suffice. Curr v. Hundley, 54.
12. SAME.-A valid assignment of error cannot be predicated upon
an objection to the admissibility of evidence which was not preserved
save by an exception to the testimony given by one witness, and the
whole subject had been antecedently embraced in what had been offered
and received without objection.-D. & R. G. R. R. Co. v. Morrison, 194.
13. SAME. When evidence was admitted without objection, questions
as to its competency will not be considered on review. Zook v. Odle, 87.
14. ORDER.-An order entered upon consent cannot be assigned as
Putnam v. Lyon, 144.
15. MODIFICATION OF JUDGMENT.-The judgment appealed from may
be modified by deducting the interest which was improperly included,
and, as modified, affirmed. Pettit v. Thalheimer, 355.
16. SAME.-A judgment may be modified upon appeal. Rio Grande
S. R. R. Co. v. Deasey, 196.
17. SAME. That a judgment is erroneous with respect to the amount
for which it was entered, does not necessarily require the remanding
The judgment may be modified and affirmed in this court.
Markell v. Matthews, 49.
18. SAME.-When part of the recovery is erroneous, and it cannot be
definitely ascertained what part could be legitimately sustained, the
judgment cannot be modified and permitted to stand, but must be re-
versed. Eaton v. Larimer & Weld Res. Co., 366.
19. SAME.-A judgment denying an injunction and dismissing the
action, which was brought to restrain the commission of acts in antici-
pation of the consequence thereof being permanently injurious, may be
affirmed without prejudice to another suit, when the actual result of
the proceeding complained of is susceptible of proof, and can be shown
to be permanently injurious and wrongful. Cushman v. Highland Ditch
Co., 437.
20. PARTIES.-Appellants are not permitted to complain in an appel-
late court for the first time that the proper parties were not brought
into the litigation prior to the decree. Putnam v. Lyon, 144.
21. RECORD.-When the record is not prepared in conformity with
the rules of court, the writ of error will be dismissed. Hammond v.
Herdman, 379.
22. SAME.-Assignments of error based upon the giving of certain in-
structions will not be considered when all the instructions are not pre-
served in the record.
23. SAME.-Where there are no pleadings, and the evidence on which
the case was tried is not preserved, the court's charge to the jury will
not be reviewed. Ib.
24. SAME. When the entire charge given to the jury is not embraced
in the transcript or printed abstract, an assignment of error based upon
the giving of a single instruction will not be considered. Arthur v.
Gard, 133.
25. SAME.-An appeal may be dismissed for noncompliance with the
rules of court in relation to abstracts and briefs. McDonald v. Mc-
Leod, 344.
APPROPRIATION: See WATER RIGHTS.
APPURTENANCES.
WATER RIGHTS.-Water rights are not appurtenances.
West, 212.
ASSIGNMENTS: See also FRAUD.
1. ASSIGNMENT FOR THE BENEFIT OF CREDITORS.- To vitiate a
general assignment for the benefit of creditors there must be a fraud-
ulent intention, followed by irregular and fraudulent disposition of the
property; in other words, there must be either a reservation of the
property, or such a disposition of it, that the proceeds will inure in some
way to the benefit of the assignor. Hunter v. Ferguson, 287.
2. SAME.-The assignor must provide no benefit to himself other than
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