March. Was in Riggs' employ at the time. About that time I had a conversation with Mr. Riggs relative to a reward having been offered for the horse. He said he had written a letter to Walter Glenn in regard to the horse. Said to Glenn he knew where the horse was, and would get him for $25.00. I was riding the horse at the time by direction of Riggs. I think he said he would get the horse for $25.00, or keep the horse and give $25.00. Rode the horse on April 2d. Took him down to Mr. Riggs' barn." Afterwards, on cross-examination, he said: "Mr. Riggs never claimed to own the horse. Never gave me any instruction in regard to selling the horse. I had told parties the horse was not for sale; that Mr. Riggs had told me he belonged to a man over on Willow creek by the name of Edwards. He told me this between the 7th of March and the 2d of April. I told Riggs that I thought the horse had Edwards' brand on him." James Baisley testified: "Was in the employ of defendant in 1900. Commenced April 12th, and worked about two months. Was riding all the time, helping him brand. Have known the horse four years. Saw him while working for Riggs. Never at any time helped change the brand. When I first saw him, the BB brand was on him. Never helped Geo. Pence change the brand. Somewhat acquainted with Geo. B. York." And here follows evidence from the witness showing that he had signed an affidavit, and given to York, but says he was drunk at the time. He expressed it as "drunk as a dog." He contradicts the statement in the affidavit in his evidence on the trial. To say the least, it would be a serious situation for the liberties of the people to be predicated upon the evidence of witnesses of this character, and we apprehend the jury entirely ignored his evidence. We certainly shall in reaching a conclusion. The evidence of T. C. Galloway and Geo. B. York on behalf of the prosecution goes to statements made by witness Baisley to them. This was all the evidence introduced on behalf of the prosecution, whereupon the defendant moved for a peremptory instruction to the jury to bring in a verdict of not guilty, which motion was overruled by the court.

M. C. Fuller testified on behalf of the defendant: "Knows defendant, and has known the horse since the holidays of 1899. First saw him on the feed yard. No one had him. Was alone on the feed yard. Did not notice any brands on him at the time. This was a couple of months before I sold horses to Riggs. He came to get them on the 4th of May. The day after I first saw him at the feed yard, he came running by my house. I noticed a big brand on him. There was two B's on the hip. I don't think the brand had been on him over twenty-four hours. When Riggs got the horses from me, this horse was with them. He asked me if he could have that horse. I said. 'No, he is a stray.' I told him to take the horse to town. He said he would, and find

out who owned him. I think he said he would shave the brand, and the next time I saw the horse the brand had been shaved. I saw two small brands that looked like half moons or half circles." J. C. Nuslein testified: "That he was connected with defendant. buying and shipping horses, from March to September, 1901. Saw the horse frequently. Knew of Riggs telling parties the horsewas not his, and he could not sell him. We used the horse. When I first saw the horse, he was on Fuller's ranch. Mr. Fuller told Riggs that if he would take the horse, and find an owner for him, he would give him $10.00. I think Riggs said he belonged to a schoolmate of his, but am not positive. I think I heard him say he belonged to a man over in Oregon, but heard him say he belonged to a man by the name of Edwards. After we dissolved partnership, the next I knew of him a man by the name of Parker, who lived on Monroe creek, had him. Got him for his feed. I believe he told me to take care of him for Riggs. Kept him through the winter of 1900. I got possession of him in the spring, about a week before Diven got the horse from Riggs. W. T. Jasper came to my place after the horse. He claimed he represented Riggs. I objected to giving him up. Told him the horse did not belong to Riggs. He said I would get into trouble if I did not give him up. I got the horse from those parties that had him. They turned him out." F. M. Page testified: "He worked for Nuslein and Riggs in May, 1900. Was present at Fuller's when they received some horses. Others there were Nuslein, Riggs, Frank Bryant, Jim Baisley, Mr. Fuller, and Scott Johnson. The horse was then branded with two large B's with a bar under it. Have worked with horses about twenty years; familiar with branding horses. Should say this brand had been on the horse twenty or thirty days. Riggs told me he was going to try to find the owner of the horse, and said if he could buy him, so he could sell him to me for $60.00, he would do it. I had told him I would give $60.00 for him if I could get a good title. Baisley told Riggs he was going to quit work. Riggs said, 'If you are going over into Oregon, or are you going over to Vale? Baisley said he didn't: know. Riggs said, 'Well, you tell Edwards that I have a bay horse branded with a doubleB on the left stifle,' and that if he would sell him for a reasonable price he would buy him. This was about ten or fifteen days after he got him." Scott Johnson testified in corroboration of the last witness as to the conversation between Riggs and Fuller. W. J. Crouse said: "He first knew the horse in May, 1900. Heard a conversation between Riggs and a Mr. Weaver at Weaver's place. Mr. Weaver wanted to buy the horse. Riggs said he couldn't sell him; that it was not his horse. He told Weaver, if he had anything for him to do, that he could make him earn his feed, he could take him and use him. Mr. Weaver wanted to know how long he could have him

He

Riggs replied he didn't know; it might be two days and might be three weeks until the owner could find him. He said he belonged to a man in Oregon." Bird Lynch said: "He knew the horse. Known him about four years. Tried to trade Riggs out of the horse two years ago. Riggs told me he was not his horse; he was a stray." Wm. Wells testified: "That he knew the horse. Was also acquainted with Mr. Riggs. Had a conversation with Riggs on the street when he was leading the horse. Proposed to trade for him or buy him. He declined to do it. Said the horse did not belong to him. I think he said he belonged to a man by the name of Edwards, or some fellow in Oregon. Wanted me to write to him to come and get the horse. I think he said he lived at Vale." Nelson Riggs, brother of defendant, said: "He first knew the horse in the summer of 1900. I tried to trade for this horse with defendant. He told me the horse did not belong to him; that he belonged to a man over in Oregon. I think Edwards was the name. Have heard him say several times that the horse did not belong to him." Frank Hahn said: "He knew the horse. First saw him a year ago January or February. He was at Frank Parker's place. Parker had him there. Had conversation with the defendant. Tried to buy the horse. said he would not sell him; that he did not own him." Dan Hooper testified: "That he tried to buy the horse from defendant, but was informed that the horse did not belong to him. Mr. Riggs is a brother-in-law of mine." Frank Hartley's testimony is to the same effect. George Pence said: "He knew of different parties trying to buy or trade for the horse, but that defendant always said he did not own the horse, and that he had heard him say he belonged to a man by the name of Edwards, in Oregon. I never helped brand the horse with the two B's, or any other brand. They were on him when I first saw him. I am a son-in-law of the defendant." William Wilburn testified: "That he remembered accompanying defendant and Walter Glenn on a trip on a train from Payette to Nyssa, about April 2d last year. Heard a conversation between defendant and Glenn. Mr. Riggs said, as well as I remember it: "That horse is down there, or some place. You can get the horse whenever you call for him.' I think Mr. Glenn was teed up a bit." Conda Wilson testified: "He heard the conversation between Riggs and Glenn on the train. Mr. Riggs told him the horse was in his barn, and he wanted him to come and get him; that he was tired of feeding him." S. A. Dougherty testified: "That he knew defendant and Glenn. Resides in Baker City, Oregon. In the month of February, 1901, he heard a conversation between defendant and Glenu in Ontario in regard to a BB horse. Mr. Riggs told Glenn to tell Mr. Edwards that, if he was not going to take the $25.00 offer for that horse, to come and get him; that the man that had been keeping him for the use of him

during the winter was done with him, and did not want to keep him any longer. Glenn replied he would tell him. This conversation was in February or March, 1901." Myron Riggs said: "He tried to trade for the horse at one time. Defendant said the horse was not his. In the latter part of May or first of June, 1900, defendant dictated a letter, and his wife wrote it, to Mr. Edwards. I am a brother of defendant." Jane Riggs says: "She is a sister-in-law of defendant. Knows the BB horse. Know of him taking steps to notify the supposed owner. He caused his wife to write a letter to Johnny Edwards concerning the horse. I was present at the time of writing the letter. It was last of May or first of June, 1900."

In rebuttal J. S. Edwards testified: "He had never received a letter from Riggs, or any of his family, notifying him that this horse was in their possession. I get my mail regularly, once or twice a week. The members of my family get the mail frequently. Whoever happens to be in town gets it.”

This is a full summing up of all the evidence adduced on the trial. From it it seems that the defendant obtained the possession of the horse from Fuller, and if the witnesses, including Mr. Fuller, who have testified with reference to the facts of such possession, are to be believed, such possession was honestly acquired, and there was no felonious intent on the part of defendant. The record discloses that all the information Mr. Diven, the prosecuting witness, ever had relating to his horse in this state, came from the defendant; not directly, but through others. It nowhere appears in the record that defendant ever claimed to be the owner of the horse, but, to the contrary, it appears from the evidence of a great number of seemingly disinterested witnesses that he always disclaimed any right to sell, trade, or control the horse. It is true he had possession of the horse a large portion of the time from the time Mr. Fuller turned him over to him until he was secured by the owner, but at all times he told his employés that the horse was a stray, and, he believed, belonged to a man by the name of Edwards in Oregon. The court gave the jury the statutory instructions covering the crime of larceny, and, in addition, gave the following instruction, numbered 11: "If the defendant wrongfully and unlawfully, and without the knowledge and consent of the owner, or any person who could give such consent, but as a trespasser and wrongdoer, took, led, or drove away the property described in the information, not then intending to steal the same, but that thereafter, while still in such wrongful possession of said property, he feloniously appropriated the same to his own use, such taking and appropriation constitute upon the part of the defendant the crime of larceny as fully and completely as though such felonious intention had existed in the de fendant at the first taking of such property." An exception was taken to this instruction,

and defendant requested the following instruction: "If the jury believe from the evidence that the defendant had no felonious intent to steal the property at the time he took it, then you must acquit, even if you believe he subsequently conceived the intent to appropriate it." This instruction was refused by the court. We think there was error in giving instruction 11, and also error in refusing to give the instruction requested by defendant. The principle is well settled that the felonious intent must exist at the time of the taking. See State v. Hines (Idaho) 51 Pac. 984; People v. Morino, S5 Cal. 515, 24 Pac. 892. In this case the instruction requested by defendant and referred by the court is in the same language as the request of the defendant in the case at bar, and the court say it was prejudicial error to refuse to give the latter part of the instruction. In Martinez v. State, 16 Tex. App. 122, that court says: "Property that is lost, equally with other property, may be the subject of theft. To constitute theft of lost property, however, the fraudulent intent, which is the gist of the offense, must exist in the mind of the taker at the time of the taking, and in lost property the time of the taking is the time of the finding of the property. If the fraudulent intent did not exist at the time of the taking, no subsequent fraudulent intent in relation to the property will constitute theft." Warren v. State, 17 Tex. App. 207, holds to the same principle. In Beckman v. State, 14 South. 859, that court says: "Where defendant found a hog in a swamp at high water, and took it home, an instruction that, unless the felonious intent existed at the time of the taking, defendant was not guilty, should have been given." Clark, Cr. Law, at page 262: "In addition to the taking and removal of the property by trespass, there must be an intent to permanently deprive the owner of his property therein, and the intent must exist at the time of the taking. This is absolutely essential." See, also, Rev. St. § 6314; State v. Rechnitz (Mont.) 52 Pac. 264; McClain, Cr. Law, § 571. A number of other authorities have been called to our attention bearing on this question, but, as they all have the same tendency, we deem it unnecessary to discuss the question further. We conclude that giving instruction numbered 11 by the trial court was error. It was also error to refuse to give the instruction requested by defendant above referred to, and that either error is sufficient to warrant this court in saying that the verdict of the jury should not be permitted to stand, as giving the one or refusing to give the other may, and likely did, prejudice the defendant, and mislead the jury in its deliberations.

We further believe the evidence in this case fails to show any reason why the defendant should be convicted of the crime of grand larceny, and his motion for a new trial should have been granted.

A number of other errors are assigned, but we deem it unnecessary to pass upon them in

view of the conclusion we have reached relative to the facts shown by the evidence.

Judgment reversed, and cause remanded for further proceedings in harmony with this opinion.

QUARLES, C. J., and SULLIVAN, J., con

cur.

BUCK V. JONES et al.

(Court of Appeals of Colorado. Dec. 8, 1902.) CORPORATIONS-STOCKHOLDERS' LIABILITYLOCATION OF MINING CLAIMS-VALIDITYPAID-UP STOCK TRANSFER OF MINING PROPERTIES TO CORPORATION-EFFECT.

1. Mills' Ann. St. § 486, provides that stockholders shall be liable for corporate debts to the amount of unpaid stock held by them. Section 582 provides that any mining company may, for the purpose of purchasing mining property, issue fully-paid stock in payment for it.

Section 3152 provides that the discoverer of a mine shall locate his claim by sinking a discovery shaft upon the lode, and by posting notice containing the name of the lode, etc. Rev. St. U. S. § 2322 [U. S. Comp. St. 1901, p. 1425], makes the discovery of a vein or lode an essential prerequisite to a mining location. A petition by the judgment creditor of a mining company against its stockholders alleged that the principal stockholder had been the owner of mining locations in which no mineral had been discovered, and which had no value except its prospects; that on the organization of the corporation this stockholder transferred its locations to the company in consideration of paidup stock, etc. Held that, as the petition showed that no mineral had been discovered on the locations, and that they were, therefore, invalid, the case did not fall within Mills' Anu. St. § 582, so as to protect the stockholders on the theory that they held paid-up stock, and render the petition demurrable.

Appeal from El Paso county court.

Action by I. P. Buck against W. C. Jones and another. Judgment for defendants, and plaintiff appeals. Reversed.

Tiffany, Hamilton & Woodworth, for appellant. George W. Musser, for appellees.

THOMSON. J. The appellant brought this action against two of the stockholders of the Golden Horn Mining & Milling Company, a corporation organized pursuant to the laws of this state, to recover the amount of a judgment previously rendered in his favor against the company. The complaint alleged that the capital stock of the company was fixed by its certificate of incorporation at $1,250,000, divided into 1,250,000 shares of the par value of $1 each; that the defendant Jones was, at the date of the incorporation, the owner of three mining claims in the Cripple Creek mining district, in this state; that shortly after the incorporation of the company a certificate embracing its entire capital stock, full paid and nonassessable, was issued, and delivered to Jones in consideration of the conveyance by him to the company of the three mining claims of which he was the owner; that he immediately transferred 400,000 shares of the stock to the

company, to be by it sold as fully paid, and, excepting 112,750 shares, which he retained, divided the residue among the other incorporators and parties not named; that the mining claims were simple locations, on which no work had been performed except that necessary to their location, and in which no mineral had been discovered; that they had no value except as prospects, and were not worth to exceed $1,000; that the defendant Jones paid no consideration for his stock, and was liable to the creditors of the corporation for the difference between its par value and the value of the mining claims; that the other defendant paid no consideration for his stock, and was liable to the creditors of the corporation for its full par value; that for three years before the commencement of the action no assessment work was done on any of the claims, and by reason of the default the company lost all its rights to the property, and, having no other property, became insolvent; and that on the 18th day of June, 1898, the plaintiff recovered judgment against the company for $300 and costs, execution on which was returned unsatisfied for want of property on which to levy. Judgment against the defendants for $310.25 was demanded. The only one of the defendants appearing to the action was Jones, and he demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, judgment entered accordingly, and the plaintiff appealed.

Our statute concerning corporations provides that each stockholder shall be liable for the debts of the corporation to the extent of the amount that may be unpaid upon the stock held by him. Section 486, Mills' Ann. St. It provides further that any mining company organized under its provisions may, for the purpose of purchasing mining property, issue full-paid stock in payment for it. Section 582, Id. The intention of the law is that stock issued by a corporation shall represent value. Persons transacting business with it have a right to rely on its representations, and to hold itself out as having resources for the discharge of its liabilities which it does not possess is a fraud upon its creditors. In the case of corporations organized under the laws of this state for the development of mining property the capitalization may be, and usually is, fixed with reference to prospective value, that is, to value which, in the judgment of the parties, the property actually has, but which development is necessary to disclose; and, if such value is estimated in good faith, we think the stock issued in consideration of a transfer of the property should be regarded as full paid, notwithstanding the parties' judgment should afterwards prove to be erroneous. But we are informed by this complaint that no mineral had been discovered upon the claims which the defendant transferred to the Golden Horn Mining & Milling Company, and

that, excepting those claims, the company had no property. The location of a mining claim must be made on a mineral vein or lode. Rev. St. U. S. § 2322 [U. S. Comp. St. 1901, p. 1425]. The discovery of the vein or lode is an essential prerequisite to a location. There is no valid location without it. Mills' Ann. St. § 3152. According to this complaint, the defendant received stock in consideration of property to which he had no title. Having made no discovery upon the ground, he acquired no right in it, and his deed to the company conveyed nothing. By reason of his want of title, any valuation of the property for the purpose of its transfer by him to the company in consideration of stock was an overvaluation. The case made by the complaint, if established by proof, entitled the plaintiff to the judgment he sought, and it was error to sustain the demurrer. Let the judgment be reversed. Reversed.

PATRICK et al. v. MORROW. (Court of Appeals of Colorado. Dec. 8, 1902.) APPEAL-FAVORABLE JUDGMENT-FORM OF

REVIEW.

1. Plaintiff cannot appeal from a judgment in his own favor, though it grant insufficient relief, but must proceed by writ of error.

Appeal from district court, Pueblo county. Action by George F. Patrick and another against Kate Morrow. From a judgment in their favor, granting insufficient relief, plaintiffs appeal. Dismissed.

C. S. Essex, for appellants.

WILSON, P. J. Appellants, as plaintiffs, brought suit to recover on a promissory note of which the defendant was maker, and of which they were payees. Judgment was prayed upon the note, and also that such judgment be decreed a lien upon certain real estate belonging to defendant, and that such lien be enforced. Personal judgment was rendered against defendant for the amount of the note, with interest and costs, but the other relief prayed for was denied. Plaintiffs did not secure all of the relief demanded by them, but the final judgment that was rendered was unquestionably in their favor. In such case, an appeal by them will not lie. If they, as the prevailing party, are dissatisfied with the judgment rendered, they can have it reviewed in the appellate court only by writ of error. Bogert v. Adams, 5 Colo. App. 510, 39 Pac. 351; Booth v. Water Co.. 9 Colo. App. 496, 49 Pac. 368; Iron Co. v. Knudson (Colo. App.) 70 Pac. 698; Hall v. Mining Co., 6 Colo. 81; Harvey v. Insurance Co., 18 Colo. 356, 32 Pac. 935; Fischer v. Hanna, 21 Colo. 13, 39 Pac. 420. The appeal must be dismissed, but, as it appears that this court would have jurisdiction to review the judgment if it were here by writ of error.

1. See Appeal and Error, vol. 2, Cent. Dig. § 19.

it is ordered, as provided by statute, that the clerk docket the cause on error. Appeal dismissed.

WEAVER et al. v. CANON SEWER CO. (Court of Appeals of Colorado. Dec. 8, 1902.) MUNICIPAL CORPORATION-SEWER SYSTEMTRANSFER TO PRIVATE PERSON-POWER OF MUNICIPALITY-ACTION FOR SEWER RENTINVALIDITY OF ORDINANCE-NECESSITY OF SPECIAL PLEA.

A

1. Mills' Ann. St. § 4403, subd. 10, confers on municipal corporations power to construct sewers, regulate their use, and, for the purpose of their construction, to make special assessments against adjacent lots and lands. municipality adopted an ordinance purporting to grant to a private individual for 20 years the exclusive right to construct, maintain, and operate a sewer system within its limits, and to collect from persons using the same a reasonable annual compensation, not exceeding $50 per year, per lot. Heid, that as the city had no power to turn its sewer system, present or prospective, over to private ownership, and as it itself had no power to charge an annual rental for the use of such a system, and so could not delegate such an authority, the ordinance was invalid.

2. A sewer company sued a lot owner who had connected with its system for rental therefor; alleging that it was the assignee of a private individual, who by ordinance had been authorized to construct and maintain a sewer system. The defendant traversed the allegation of plaintiff's ownership of the sewers. Held, that the defendant could avail himself of the invalidity of the ordinance without having specially pleaded it.

Appeal from district court, Fremont county.

Action by the Canon Sewer Company against J. E. Weaver and others. Judgment for plaintiff, and defendants appeal. Reversed.

Waldo & Dawson, for appellants. Jos. H. Maupin, for appellee.

THOMSON, J. On the 8th day of De cember, 1885, the board of trustees of the town of Canon City adopted an ordinance purporting to grant to Lyman Robison, his associates, successors, and assigns, for 20 years, the exclusive right and privilege to construct, operate, and maintain a system of sewers within the corporate limits of the town, for the use of its inhabitants, and to collect and receive from all persons using the same a reasonable annual compensation for connecting therewith, not exceeding $50 per year for one lot. On the 8th day of April, 1891, Robison assigned all his right and interest under the ordinance to Edwin C. Gray; and on the 5th day of May, 1891, these were assigned by Gray to Mary H. Cross. On the 1st day of September, 1892, Robison and a number of others executed a deed transferring all the rights, powers, and interests acquired by them and their predecessors and assigns under the ordinance to the Canon Sewer Company, a corporation. Among the names subscribed to the deed does not ap

pear that of Edwin C. Gray or Mary H. Cross. On the 13th day of April, 1899, the Canon Sewer Company brought this suit against J. E. Weaver and E. D. Bond, alleging that it was the owner of a sewer system in Canon City; that the defendants were the owners of a part of lot 10 in block 10, with the building thereon; that the building had since January 1, 1896, been connected with the plaintiff's sewer system; and that a reasonable compensation for their use of the system was $7 per year. Judgment for $21 was demanded. Except as to the incorporation of the plaintiff, and the defendants' ownership of the ground and building, the answer denied all the allegations of the complaint.

On the assumption that the ordinance was effective, the evidence leaves us very much in the dark respecting the plaintiff's title. It certainly did not succeed to the rights of Robison, for he had previously transferred them. No relinquishment from the person or persons holding his title was shown, and the claim that the subscribers to the deed were his associates seems a little shadowy. Neither does it very clearly appear what sewer was built pursuant to the ordinance. It seems that a sewer was constructed for the use of the penitentiary, by the penitentiary authorities, from the penitentiary to the Arkansas river, over a right of way granted to them by the town, for the construction of which Robison and others furnished certain material, and with which they were allowed the privilege of making connections. This was known as the "main sewer." It also appears that a sewer was constructed along the alley running through block 10, which discharged itself into the main sewer. With this sewer in the alley, Robison had nothing to do, but it was the one with which the defendants had connected. It is not evident who was responsible for its existence, and we discover no facts upon which its ownership in the associates of Robison can with any certainty be predicated. The main sewer constructed by the penitentiary authorities, and this sewer in block 10, the history of which is somewhat obscure, seem to have constituted the entire sewer system to which the plaintiff claims title. From the disjointed and unsatisfactory evidence before us, we should find considerable difficulty in working out a judgment for the plaintiff, even if otherwise the way were clear to a recovery.

But aside from the doubtful character in such respects of the plaintiff's proofs, there is a fatal objection to its case. It relied upon the ordinance as the source of its title, but the grant which was attempted by the ordinance was not within the power of the municipality. In the act concerning towns and cities, the powers of municipal corporations are enumerated and defined. Among other powers is that to construct sewers, regulate their use, and, for the purpose