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ing claim or otherwise. Baker v. Ormsby, | for like services performed for said Coulter 4 Scam. 325; Brent v. Shook, 36 Ill. 125; during the continuance of said partnership. Welch v. Karstens, 60 III. 117. The defend- Previous to the commencement of this suit, ants were allowed time to prepare and pre- Coulter assigned his interest in the account serve such bill of exceptions, but, not having of Post & Coulter to Post, and the assigned done so, we must presume that the proofs account was submitted to the jury, and evibefore the county court on the trial were suf- dently considered and allowed by them as a ficient to sustain the jurisdiction of the legitimate part of appellee's account current. county court, and to warrant the finding and Upon the trial in the county court the jury judgment as rendered. Martin v. Force, 3 found a verdict in favor of the appellee Colo. 199; Dusing v. Nelson, 7 Colo. 184, 2 (plaintiff below) for the sum of $158.55. The Pac. Rep. 922; Hughes v. Cummings, 7 Colo. court overruled a motion made by the defend138, 2 Pac. Rep. 289, 928; Barnett v. Wolf, ant for a new trial, and entered judgment 70 Ill. 76. The judgment of the county court upon this verdict. To reverse this judgment is affirmed

(12 Colo. 355)

KING V. POST.

(Supreme Court of Colorado. March 8, 1889.) LIMITATION OF ACTIONS-WHEN STATUTE APPLICA BLE-APPEAL-DECISION.

the case is brought here by appeal. W. T. Hughes, for appellant. Charles C. Post, for appellee.

HAYT, J., (after stating the facts as above.) Under the statute of limitations in this state, actions of debt and of assumpsit must be commenced within six years next after the cause of action shall accrue, and not afterwards, (Gen. St. § 2163;) while, by section 2167, it is provided that, "in all ac

1. An account due a firm cannot on dissolution of the firm, and assignment of the account to one of its members, be included by him in his individual account against the same debtor, without the latter's consent, so as to avoid the bar of the statute of limitations as to it, under Gen. St. Colo. §tions of debt or assumpsit brought to recov2167, providing that the cause of action in a mutual and open account current shall be deemed to have accrued at the time of the last item.

2. Where it is sought to avoid the bar of statute of limitations as to a debt because it is part of a mutual account, and also because of a promise to pay it, and the cause is submitted on both questions, and a general verdict for plaintiff is returned, judgment thereon will be reversed where the debt cannot form a part of a mutual account.

Appeal from county court, Clear Creek county.

This action was originally commenced before a justice of the peace on the 4th day of January, 1886, and afterwards taken into the county court by appeal. The action is based upon an account extending from the month of February, 1883, to March 25, 1885, and amounting to the sum of $752.05, upon which amount appellee (plaintiff below) gave credits amounting to $511.39, leaving a balance of $240.66. The appellant denied appellee's account; claimed that the action was barred as to a part of said account by the statute of limitations; and also claimed a set-off of an account against the appellee, extending over a period from January, 1875, to January, 1886, amounting to $224.66, in addition to the credits acknowledged by the appellee. It appears from the evidence that $457.05 of the account sued upon was for legal services rendered by the law firm of Post & Coulter to the appellant between the 1st day of February, 1873, and the 14th day of May, 1878. This firm was composed of the appellee, Charles C. Post, and one John A. Coulter. And it also appears that the balance of the appellee's account is for legal services rendered by himself to the appellant after the dissolution of the co-partnership between himself and Coulter, which occurred in the year 1878; While the account presented by the appellant, who is a barber, consisted principally of charges made for services performed at his barber shop for the appellee, and also

er the balance due upon a mutual and open account current, the cause of action shall be deemed to have accrued at the time of the last item proved in such account." The testimony leaves it in doubt whether there was ever a mutual open account between the firm of Post & Coulter and the appellee, King; the evidence strongly tending to show that there was an understanding that Post & Coulter were to attend to the appellee's law matters, and that he was in turn to serve them at his shop, and that there were to be no charges made by either party. If, however, it should be conceded that such a mutual open account existed prior to the year 1878, it is admitted that the firm of Post & Coulter was dissolved in that year, and consequently there could have been no mutual account between that firm and the appellee after that date, and the bar of the statute had attached, before the bringing of this suit in 1886, to any account made prior to such dissolution, unless the assignment of Coulter's interest therein to Post, and the subsequent charging by Post of the firm account, in his individual account, operated to take the former out of the statute. There is a dispute in reference to the time upon which Coulter made the assignment to Post. The written assignment in the handwriting of Post bears date upon the 28th day of July, 1885; and Coulter swears that the instru ment shows the true date upon which the assignment was in fact made, while the evidence of the appellee is that it was made at the time of the dissolution of the copartnership between himself and Coulter, in the year 1878. If the assignment was not in fact made until the date shown by the written assignment, then the bar of the statute of limitations had attached before the assignment was made, and the account should not have been allowed; and if, on the con

nary examination on a criminal charge need not 2. A recognizance for appearance at a prelimibe enrolled on the justice's record.

3. The surety on a recognizance for appearance charged by the fact that the sheriff took the prisat a preliminary examination for crime is not disoner, at the latter's request, to another county, to enable him to obtain bondsmen, as the surety must be held to have known of the irregularity when he arrest was made in another county. signed the recognizance, which showed that the

4. Under such circumstances the surety cannot plead duress of imprisonment if he had full knowledge of the circumstances of the detention of the prisoner.

5. An averment in the answer that defendant "hath no knowledge upon which to base a belief" as to material averments in the complaint is deformation, "and also that he could not obtain such fective in failing to state that he has also no "inknowledge or information.

Error to district court, Bent county.

trary, the assignment was in fact made inceived it, and immediately discharged the prisoner the year 1878, it does not appear that such before delivering it to the justice. assignment was made with the consent of appellant, or that he had any knowledge of the same; and, certainly, appellee cannot claim the benefit of section 2167 by charging the assigned account as part of his personal mutual and open account current, and thus avoid the bar of the statute. "The rule that items within six years draw after them other items beyond that period is, by all the cases, strictly confined to mutual accounts, or accounts between two parties which show a reciprocity of dealing." Ang. Lim. §§ 148, 149. The items properly allowable under the statute include only those embraced in the dealings of the two parties with each other. Then, if each keeps an account, as he ought, each would have the means at all times of ascertaining the balance due from one to the other; and with this knowledge it One Kathan was taken into custody under is reasonable to say that each new item draws a warrant duly issued, and brought before after it all prior items in the account, and JAY, a justice of the peace in Bent county, that an acknowledgment of, and a promise upon the charge of larceny. The holding of to pay, the entire account may fairly be in- the preliminary examination was postponed, ferred from the last transaction, and this upon application of the people, for the period furnishes the reason for the exception made of 10 days. It seems, however, that bail for by the statute. But if one party to the ac- Kathan's appearance at the expiration of the count buys up claims against the other with- 10 days was fixed by the justice in the sum out the other party's knowledge, and charges of $1,000. The sheriff of Bent county came such claims in his account, it cannot be said to Denver with Kathan, for the purpose of that a promise to pay such claims shall be enabling him to secure the requisite bondsinferred from any subsequent dealings be- men. The recognizance was executed in' tween the parties resulting in an extension Denver, with Kathan as principal, and of the original account between them, but Haney, the plaintiff in error, as surety. without any reference to or knowledge of Thereupon Kathan was released by the sherthe assigned account on the part of the party iff. The recognizance was returned to Jussought to be charged therewith. The account of the firm of Post & Coulter against King was between other parties, and cannot be considered as a mutual account between appellant and appellee, for the purpose of preventing the bar of the statute; and it was error to submit to the consideration of the jury such account as a part of the account current between the parties to this action. Hay v. Kramer, 2 Watts & S. 137; Green v. Ames, 14 N. Y. 225.

It is claimed, however, that the entire account here sued upon was presented to the appellant in the year 1885, and that he then promised to pay the same. This might, if true, constitute a good cause of action for the entire amount claimed by Post; but, conceding that there is evidence to support such a cause of action, and that the instructions upon this branch of the case were correct, it is impossible to determine which of the two theories submitted was the one accepted by the jury. Therefore, since one of these theories was clearly erroneous, the judgment must be reversed, and the cause remanded.

(12 Colo. 345)

HANEY V. PEOPLE. (Supreme Court of Colorado. March 8, 1889.) RECOGNIZANCE-SURETY-PLEADING.

tice JAY, and by him approved and filed. Kathan made default at the end of the 10 days, by failing to appear. The recognizance was forfeited in the justice's court, and the default entered upon the record of the justice. The recognizance, together with the record of the default, were duly certified to the district court of Bent county. The present action was brought in the latter court against Kathan as principal, and Haney as surety, upon the recognizance thus taken and the record thus made. Haney answered the complaint, setting up three distinct defenses; Kathan not being found or served with process. To each of these defenses plaintiff demurred on the ground of insufficient facts to constitute a defense. This demurrer was sustained, and, defendant declining to plead over, judgment was duly rendered and entered for the amount of the penalty specified in the recognizance. To review that judg-. ment the present writ of error was sued out.

Wm. G. Russell and Stallcup & Shaffroth, for plaintiff in error. Pitkin & Richmond and J. C. Elwell, for defendant in

error.

.HELM, C. J., (after stating the facts as above.) The justice of the peace was authorized to postpone the further examination of 1. A justice has jurisdiction to accept and apKathan, as he did; also to admit Kathan to prove a recognizance, though the sheriff re-bail for his appearance at the time designated

in the order of postponement. Section 2054, | separate sheet of paper, and is signed and Gen.. St. In such cases, if default be made, sealed by the obligors, or that it was not it is the duty of the justice to certify the re- spread upon the justice's docket. There is no cognizance, together with his note of the de-specific statutory direction that these recogfault, to the district court of the same county, nizances shall be enrolled upon the justice's that sci. fa. may issue, or that the proper record, while the provision relating to the action may be brought thereon. Section 2055, certification thereof seems to contemplate Id. When these acts are performed, the re- just such instruments as the one before us. cognizance becomes a record of the latter Moreover, similar bail-bonds have long been court, and can no longer be regarded as an recognized by this court, and by other courts ordinary contract. Connor v. People, 4 Colo. under like provisions, as sufficient compli134, and cases cited; Chase v. People, 2 Colo. ance with law. Connor v. People, supra; 528; People v. Watkins, 19 Ill. 117; Johnston Chase v People, supra; King v. State, supra. v. People, 31 Ill. 469; King v. State, 25 N. Without discussion, and without analysis W. Rep. 519, and cases cited. Such records of the authorities, we shall assume that if, are public records in the nature of judg-in a case like the one at bar, bail be taken by ments, and import substantially the same a court having no jurisdiction, or by an offiverity as other judgments. Their impeach-cer destitute of legal authority, the instrument is hardly less difficult than the impeachment, whether denominated a "recognizance" ment of domestic judgments so situated that or "bond," is void as to both principal and scire facias would, at common law, properly surety, and that such fact, when shown by issue preliminary to the taking of execution. the surety, constitutes a good defense to an And in view of the peculiar obligation and action against him for the penalty. People liability thus created, coupled with defective- v. Mellor, 2 Colo. 705; State v. Winninger, 81 ness of statement, and the admission of the Ind. 51, and cases; State v. Kruise, 32 N. J. truthfulness of matters contained in the Law, 313; Jones v. State, 63 Ala. 161; State bond, made by defendant in attaching thereto v. Young, 56 Me. 219; Com. v. Roberts, 1 his signature and seal, we shall decline to Duv. 199; Dugan v. Com., 6 Bush, 305; accept as sufficient, under pertinent rules of State v. Russell, 24 Tex. 505. Defendant's pleading, or as controlling, under principles challenge of the recognizance before us, of law applicable thereto, the averments of based upon these grounds, is not well taken. fact embodied in defendant's third defense. It is true this instrument was handed to the The language of the denial touching certain sheriff, and it is also true he thereupon dismaterial averments of the complaint, and charged his prisoner. But he did not attempt constituting defendant's first defense, is that to approve the bond, and his action in reas to such matters he "hath no knowledge leasing Kathan was premature. He immeupon which to base a belief." This denial diately transmitted the instrument to the is defective in two particulars. In the first justice before whom the proceeding was place, besides stating that he had "no knowl-pending. The latter oflicer, after accepting edge," defendant should also have averred and approving the recognizance, did all that that he had no "information." The two statutory words "knowledge" and "information" have not, as thus used, the same legal significance. But, secondly, to make the averment a good denial, defendant should have Nor is defendant entitled to immunity, in stated, not only that he had no knowledge or the present action, upon the claim that his information upon which to base a belief, but principal was unlawfully restrained of his also that he could not obtain such knowledge liberty. It must be taken as true that the or information. If the pleader will avail warrant for Kathan's arrest was regularly himself of this form of denial, he must see to issued, in pursuance of a complaint or inforit that his pleading complies strictly with mation duly filed. The arrest was made in the material requirements of the statute. It the county where the prosecution was pendhas been said that the exact formula pre-ing, by the sheriff of that county, and was scribed by statute should be adopted. Pom. therefore perfectly regular and proper. None Rem. § 640, 641; James v. McPhee, 9 Colo. of the proceedings before the justice of the 486, 13 Pac, Rep. 535; Bliss, Code Pl. § 326. peace prior to his approval of the bond are The material allegations in defendant's challenged. Under the pleadings, we take answer, not disposed of by the foregoing sug- the fact to be that the sheriff brought Kathan gestions, charge, in substance, that, when to Denver, at the latter's request, and as a the bond was executed, Kathan was wrong-favor to him, in order that he might procure fully and illegally restrained of his liberty, the requisite bondsmen. If it be conceded and that the instrument was not made and that the act of the sheriff in taking his prisapproved according to law; for which reasons oner to Arapahoe county for the foregoing it is claimed that neither the principal nor purpose was irregular, defendant must be surety is bound by the obligation. This in-held, in law, to have been aware of such irstrument is, in form, a recognizance, no ma- regularity. The instrument itself advised terial feature being omitted; and no valid objection can be predicated by defendant upon the propositions that it is written on a

was necessary to constitute it a record of the district court. These acts of the justice were performed while his jurisdiction attached, and under statutory authority.

him of the essential facts, including the fact that the arrest was made in Bent county, and he could not plead ignorance of the law.

(12 Colo. 361)

With this knowledge, defendant voluntarily, | tance that the criminal law should be adwithout the slightest constraint or duress on ministered fairly and impartially for the his part, and, as he alleges by answer, "in protection of society, as well as for the proorder to procure the release of said George E. tection of the accused. Parties are allowed Kathan," executed the bond. He accom- to give recognizances and bail-bonds for plished his purpose; for, by virtue of his their own advantage; and when, in assumvoluntary action in the premises, Kathan ing such obligations, they are treated in perwas discharged from custody. We cannot fect good faith by those acting in behalf of say that the irregular act of the sheriff so the state, there seems to be no good reason vitiated the instrument as to render it, not- why they should not be held liable thereon withstanding the subsequent proceedings in upon principles applicable to other instrurelation thereto by the justice of the peace ments of like character. and district court, an absolute nullity. Under these circumstances, as above suggested, we do not think defendant's plea, alleging the duress of Kathan, a good defense. There is excellent authority for the proposition that, though there be actual "duress of imprisonment" or illegal detention of the principal, yet, if the surety has full knowledge of the circumstances attending the detention, and, notwithstanding such knowledge, voluntarily enters into the obligation, he is bound thereby. Plummer v. People, 16 Ill. 358; Huggins v. People, 39 Ill. 241; Griffith v. Sitgreaves, 90 Pa. St. 161; King v. State, 25 N.W. Rep. 519. We would not undertake to apply the foregoing doctrine where, in addition to duress of the principal, the bail or recognizance is taken by a court having no jurisdiction, or by an officer without legal authority, and is therefore, for the latter reason, a nullity. We are of the opinion that the court below committed no error, and the judgment is accordingly allirmed.

NUCKOLLS v. GAUT. (Supreme Court of Colorado. March 15, 1889.) ANIMALS-TRESPASSING CATTLE-CROPS-FENCES. 1. In Colorado, the owner of crops cannot recover damages done thereto by trespassing cattle, unless such crops are at the time of the trespass inclosed by good and sufficient fences. Following Morris v. Fraker, 5 Colo. 425.

2. In order that a conflict between different in

structions shall be ground for reversal, it must appear that such conflict may have injured the party complaining.

Error to county court, Garfield county.

Action for damage to crops done by trespassing cattle, brought by G. N. Gaut against Emmett Nuckolls. Verdict and judgment for plaintiff, and defendant brings error. Taylor, Ashton & Taylor, for plaintiff in error.

HELM, C. J. In this state "the owners of crops can only recover damages done thereto by the trespasses of cattle when the same are, ELLIOTT, J., (concurring.) I concur ful- at the time of the trespass, inclosed by good ly in the opinion of the Chief Justice. Kathan and sufficient fences." Morris v. Fraker, 5 was in custody under lawful process. Even Colo. 425. The case cited holds that in the if his removal by the sheriff to another coun- particular mentioned the principle of the ty amounted technically to an escape, it does common law is inapplicable here. If, since not follow that he was bound to assert his that opinion was written (about ten years liberty thus regained. He was still subject ago) the circumstances and conditions have to the prosecution which had been legally in- so changed as to justify a return to the comstituted, and which was still pending, against mon-law rule on the subject, the legislature him. He could be rearrested if he should should so declare. Until such legislative decescape from custody other than by lawful laration is made we shall apply the doctrine means; and it would seem that he desired to of stare decisis. The instructions correctly secure his enlargement in a manner which state the law in this respect. Besides, this would not subject him to further trouble un- part of the charge was given at the instance til the day appointed for his examination. To and request of plaintiff in error, and hence accomplish this, he and the plaintiff in error, he would not be heard to complain. The inas his surety, executed the bond in contro- struction given at the request of defendant versy. Surely, neither of them can complain in error, to the effect that, if the fence law that they were allowed to do this without the had not been adopted in Garfield county by a labor and expense of a journey to a distant popular vote, it did not govern the case, also county to appear before the magistrate. The states a correct legal proposition. The ananswer does not show that plaintiff in error nouncement of this proposition, even were it was under any duress, actual or constructive, unnecessary, did not produce such an inconor that he was ignorant of the rights and sistency in the charge as would vitiate the privileges of the accused, or that either he or verdict. It is not true, as counsel contend, his principal was in any manner imposed that a conflict between different instructions upon. They executed the bond voluntarily, given is necessarily a ground for reversal. for a lawful purpose, and with full knowl- It must appear that such conflict might have edge of its contents. Under such circum- injuriously affected the party complaining. stances, in an action on the instrument it- Not having the evidence before us, we must self, it seems clear that both principal and presume that it was sufficient, under the law surety should be held estopped by its particu- as pronounced by the court, to warrant the lar recitals. It is a matter of public impor-jury in returning the verdict they did. De

fendant in error may, for aught we know, have had a good and sufficient fence, or the evidence may have shown that plaintiff in error willfully and deliberately drove his cattle upon the premises of defendant in error for the purpose of inflicting the resulting injury. The judgment is aflirmed.

(12 Colo. 363)

SMITH v. WALL et al.

(Supreme Court of Colorado. March 15, 1889.) SET-OFF AND COUNTER-CLAIM-ASSIGNMENT-EVI

DENCE.

1. Plaintiffs' assignors agreed to deliver a certain quantity of lumber to defendant, within a specified time, at $15 per M.; $10 to be paid in cash, at times therein specified, and $5 to be credited on the assignors' note to defendant. The assignment was of all the moneys arising under the agreement, so that plaintiff's should become the payees as if they were the contracting parties therein, and was made and accepted by defendant before any money was due. In an action to recover the $10 per thousand for the quantity delivered, held, that defendant could, recoup his damages for the failure of plaintiffs' assignors to deliver the quantity agreed upon, especially as it did not appear that the amount sued for became due before the damages were suffered.

2. Defendant having declined to pay for the lumber delivered, because he was damaged to a greater amount, and there being testimony that he fixed a time for payment, and that after breach of the contract, having received back property sold by him to plaintiffs' assignors, he said that he considered the matter between them settled, the question is for the jury if the evidence may be regarded as tending to establish a waiver of the claim for damages.

66

* *

therein, the party of the first part herein ful-
ly set over and transfer to the said party of the
second part herein all and whatever moneys
arise therein to them, so that the said party
of the second part herein shall, so far as the
said agreement provides for the payment of
moneys to the said party of the second part
therein, be and become the payee thereof, in
all respects as if the said party of the second
part herein was the contracting party of the
second part in the said agreement; it being
agreed by and between the parties hereto that
the terms of this agreement shall be accepted
in writing by the said party of the first part
in the said agreement, the duplicate copy of
said agreement held by the party of the first
part herein being attached to this agreement
as a part hereof.
*" Attached to
the forgoing assignment was the foliowing,
duly executed: Acceptance. I, Charles A.
Smith, party of the first part, in the agree-
ment hereto attached, hereby accept the terms
of this agreement this 20th day of September,
A. D. 1882. [Signed] CHARLES A. SMITH."
Afterwards, and at the expiration of the 90
days, but 35,000 feet of the quantity of lumber
contracted for had been furnished, and Mor-
ril & Liggett made default by failing and re-
fusing to deliver more. Smith declined to
pay Wall & Wood the $10 per thousand due
for the quantity delivered, claiming that he
had been damaged much more than that sum
by Morril & Liggett's failure to keep their
contract; whereupon Wall & Wood began
this action, and recovered a judgment for the
amount claimed. At the trial Smith offered
evidence showing losses which he had suffered
by reason of the failure of Morril & Liggett
to comply with their contract, which evidence
was rejected by the court. This ruling con-
stitutes the principal alleged error complained
of. The court directed a verdict for plaintiffs.
Hosea Townsend, for appellant. John R.
Smith, for appellees.

Appeal from district court, Custer county. On September 16, 1882, Morril & Liggett made a written contract with Smith, agreeing to sell and deliver to him 300,000 feet of lumber within 90 days, at $15 per thousand; the same to be so delivered upon written bills or orders specifying the particular kind and quality desired. The price named was to be paid as follows: When the purchaser from Smith received a shipment, and audited the bill therefor, Smith was to pay Morril & Lig- HELM, C. J., (after stating the facts as gett $10 per thousand in cash, and give them abore.) The so-called "assignment" to Wall credit for the remaining $5 per thousand was executed and accepted four days after upon their promissory note representing the the original contract was made, and before purchase price of a certain saw-mill bought any money became due or payable therefrom him. Four days subsequent to the time under. Its legal effect was simply to incorpoof entering into this agreement, and while rate into the original contract a new condithe parties were proceeding thereunder, Mor- tion, viz.: That Wall, instead of Morril & ril & Liggett attempted to assign in writing Liggett, should be the payee of the $10 cash to Wall (who afterwards took Wood into part-payinents provided for therein. In this renership with him, so that the assignee ulti-spect Wall stepped into the shoes of Morril & mately became Wall & Wood) their interest Liggett. Besides, there is no proof that the in the cash payments to become due under amount sued for became due before the damthe contract. The exact scope and extent of ages complained of by Smith had been sufthe alleged assignment is shown by the fol- fered; and, under the circumstances, we think lowing extract therefrom: "That in consider that, if the right of recoupment would have ation of advances made and to be made to existed in favor of Smith as against Morril the said party of the first part by the said & Liggett had they retained ownership of the party of the second part, during the life-time entire proceeds, he should have been allowed of a certain agreement made and entered into to make proof thereof against Wall & Wood, on the 16th day of September, A. D. 1882, who had, previous to the action, succeeded by and between Chas. A. Smith as party of to the rights of Wall in the premises. It the first part therein, and H. C. Morril and was therefore error to reject the evidence ofJ. R. Liggett as party of the second part fered by Smith to establish and recoup his

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