Adm'r (Ky.) 39 S. W. 416, and Fee v. Iron Co., 13 Ohio St. 563, it is to be said of the Kentucky Case that the decision was: "If a defendant appears and raises the question of jurisdiction over him by showing that no process has been served on him, if the court agrees with him, and sustains his motion, he is not before the court; but if the court holds against him, and on appeal he reverses the lower court, then he is before the court, by reason of such appeal, and the plaintiff has acquired jurisdiction." That is far from saying that giving an appeal bond estops appellant to complain of lack of process. The Ohio case seems to be more in point, but is based on the authority of two former cases, by one of which (Marsden v. Soper, 11 Ohio St. 503), such an act as filing an appeal bond would not waive a jurisdictional question. Both cases were doubtless rightly decided under the statutes of those states. But, even if wholly sustaining defendant in error in his present contention, they cannot be considered as authority here; for our statute clearly contemplates that, in an appeal from the county to the district court, the appellant, if he has not entered his appearance in the county court, may be heard upon his appeal to object to the form of the summons, or the manner of serving the same, if he made that objection in the county court. Necessarily, therefore, giving of the appeal bond is not equivalent to a general appearance in the district court. Since the service was not sufficient to give the county court jurisdiction, and there was no waiver of it by defendant below, for its appearance there was special and limited to the motion to quash, it follows that the judgment of the county court must be reversed, and the cause remanded; and it is so ordered.

Reversed.

(30 Colo. 412)

GILES v. DE COW. (Supreme Court of Colorado. Nov. 3, 1902.) CONTRACTS-CONSIDERATION-AGREEMENT TO

RESTRAIN PROSECUTION.

1. Where defendant's brother-in-law stole certain property belonging to plaintiff, and defendant promised to repay the loss if plaintiff would not institute prosecution for the theft, and, relying on this promise, plaintiff did not have the warrant issued, but permitted the thief to remove his baggage from plaintiff's house, plaintiff could not recover from defendant, the consideration for defendant's promise being illegal.

Error to Teller county court.

Action by Sarah De Cow against E. S. Giles. From a judgment for plaintiff, defendant brings error. Reversed.

Benjamin W. Coleman, for plaintiff in er

ror.

CAMPBELL, C. J. Charles I Corless owed the plaintiff for borrowed money and

1. See Contracts, vol. 11, Cent. Dig. § 646.

room rent about $20. While occupying one of her rooms, she alleges that he stole and converted to his own use certain of its furnishings of the value of $189. Plaintiff caused a complaint to be sworn to against him before a justice of the peace, charging him with the larceny of this property. Defendant (who was a brother-in-law of Corless) promised plaintiff that if she would not have a warrant of arrest issued from the justice's court on that complaint, and would not have Corless arrested for larceny, and would permit him to remove from his room certain of his baggage, where it was stored and kept, that defendant would return all of the stolen property to plaintiff, and repay her the amount of the loan and room rent. The specific allegation of the complaint is that plaintiff, relying upon this promise of defendant, did not have the warrant issued or Corless arrested for larceny, and Corless was allowed to and did remove his baggage. Defendant having returned some, but not all, of the stolen property, and refusing to pay the amount of the loan and room rent, she brought this action to recover judgment for $97.40, the value of these two accounts and the stolen property retained.

The complaint on its face shows that no cause of action is stated, and defendant's demurrer, which was overruled, should have been sustained by the court, and the action dismissed. A thief is under a legal, as well as a moral, duty to repay the person whose property he has stolen, and it is not in itself an illegal contract for him to give his own obligation therefor, or for a third party to agree to recompense the owner for the loss. But if the consideration for the promise of either, in whole or in part, be an agreement to stifle or discontinue prosecution of the crime committed, such promise will not be enforced. One of the unseverable considerations for defendant's promise was the agreement, which plaintiff kept, to discontinue the criminal prosecution against Corless. The law, therefore, will leave the parties in the situation in which they have placed themselves. As was said by this court in Railroad Co. v. Taylor, 6 Colo. 1, 14, 45 Am. Rep. 512: "Where an illegal condition or promise on one side is a part of the consideration for the entire obligation on the other side, it is owing to the impossibility of determining the weight or extent of such portion of the consideration which moved to induce the engagement thereupon, that such void promise or consideration is held to be unseverable, and avoids the whole contract." The same doctrine is declared in Levy v. Spencer, 18 Colo. 533, 538, 33 Pac. 415, 36 Am. St. Rep. 303, wherein it is said that in a case where a party asserts a claim founded upon, and recoverable only through and by virtue of an illegal contract, it will not be enforced by the courts. The authorities bearing upon this case are collated in 6 Am. & Eng. Enc. Law (2d Ed.) 409 et seq. Cases quite in point

are Ream v. Sauvain, 2 Kan. App. 550, 43 Pac. 982; Fernekes v. Bergenthal, 69 Wis. 464, 468, 34 N. W. 238; Tyler v. Bailey, 71 Ill. 34. It appearing that the contract relied upon in this case is an entire contract, and the consideration therefor, at least in part, illegal, it is impossible to sever the consideration. Defendant's promise, therefore, cannot be enforced.

The judgment is reversed, and the cause remanded, with instructions to sustain the demurrer to the complaint and dismiss the action. Reversed.

(30 Colo. 307)

ALLEN v. MOORE. (Supreme Court of Colorado. Oct. 6, 1902.) BONA FIDE PURCHASER - NOTICE SPECIFIC PERFORMANCE-STATUTE OF FRAUDS.

1. The exclusive possession of property by a married woman after separation from her husband puts a purchaser on inquiry as to her rights therein.

2. Where a woman marries on the promise of the man to convey real estate to her, and he fails to do so, this is such a fraud as will take the case out of the statute of frauds, and authorize specific performance.

Appeal from district court, Lake county. Action by Lucy A. Allen against Susan Moore. Judgment for defendant. Plaintiff appeals. Affirmed.

Francis E. Bouck, for appellant. Sterling, for appellee.

A. J.

GABBERT, J. Appellant, as plaintiff, brought an action in ejectment against appellee, as defendant, to recover possession of real estate, basing her action upon ownership and right of possession. The case has once before been submitted for our determination, and is reported in 26 Colo. 197, 57 Pac. 698, 77 Am. St. Rep. 255. In accordance with the views there expressed, the defendant filed an amended cross-complaint, wherein she alleged, in substance, that she was induced to enter into a contract of marriage by an oral promise on the part of the man she married to convey the premises in controversy to her, which promise he failed to perform; that she would not have entered into the marriage relation except for this agreement; and that plaintiff and her grantor, who claimed to have purchased the premises from her husband, each knew, before making their respective purchases, that she (the plaintiff) was the owner of such premises. A replication was filed, putting in issue these statements. The cross-complaint also alleged that, in pursuance of her antenuptial agreement, she entered into possession of the premises, and had made lasting and valuable improvements thereon, although we do not regard this averment as material to a determination of the case as now presented. The result of a trial to the court was a judgment for the defendant. Plaintiff brings the case here for review on appeal, and contends that the testimony failed

to show legal notice to the plaintiff and her grantor of defendant's alleged rights in the premises, and that defendant utterly failed to make out a case for specific performance.

On the subject of notice there is testimony to the effect that prior to his purchase the grantor of plaintiff was advised that defendant claimed the property; that prior to her purchase the plaintiff was notified by the defendant that she owned the premises. The conversation between the parties on this subject is said to have taken place on the premises, and the plaintiff admits she went there for the purpose of ascertaining whether or not the defendant claimed them. The testimony further shows that the defendant and her husband separated more than a year before either plaintiff or her grantor purchased, that the defendant continued to occupy the premises after the separation, that she made some improvements on the premises, that the parties all lived in the same town, and that plaintiff and her grantor knew that defendant was occupying these premises. From this testimony it appears that plaintiff and her grantor not only were told of the claim which defendant asserted to the premises, but, in addition, knew that she was in the open and exclusive possession of the property. This was sufficient to put them upon an inquiry regarding her rights, which, if prosecuted, would have acquainted them with her claim. Whatever is sufficient to put a purchaser upon inquiry is generally regarded as good notice of the fact which an inquiry prosecuted with reasonable diligence would have disclosed. Yates v. Hurd, 8 Colo. 343, 8 Pac. 575; Filmore v. Reithman, 6 Colo. 120. The testimony fully supports the finding of the trial judge that the grantor of the plaintiff was not an innocent purchaser, and that she, before her purchase. had notice of the defendant's rights.

The only argument made in support of the proposition that the defendant did not make a case which entitled her to a specific performance, or, in other words, a conveyance from her husband, is based entirely upon the proposition that the testimony fails to ́establish such a part performance of the contract upon her part, in the way of taking possession of the premises and erecting improvements thereon, as to entitle her to such relief. This is not a material question, in view of the fact that counsel does not challenge the finding the court necessarily made, under the issues, that defendant would not have entered into the marriage contract with her husband except for his promise to convey her the premises in dispute. Her right to these premises, under this antenuptial agreement, does not depend upon the question of part performance, but is based upon the ground that she was induced to enter into a marriage contract on the faith of an oral promise made by the man she married to convey her the premises in dispute, and that his failure to keep his promise in such

circumstances is such a fraud upon her as will take the promise to convey out of the statute of frauds, and, as between them, equity will enforce the contract. This question is discussed in the opinion rendered in the former decision of this case, and we do not deem it necessary to rediscuss it, further than to say that equity will make a case an exception to the statute of frauds in which it appears that one of the contracting parties has been induced to alter his situation, on the faith of an oral agreement within the statute, to such an extent that it would be a fraud on the part of the other party to set up its invalidity upon the ground that the contract should have been in writing. It is suggested by counsel for plaintiff that a distinction is drawn between cases where the promise was to convey before marriage, and the promisee was induced, by means of excuses, to have the ceremony performed before the conveyance was executed, and those where the promise was to convey after marriage. We do not think the distinction exists. In either case, if the promise to convey is established, and the party to whom the promise was made was induced to enter into the marriage contract on the faith of the promise, and the assurance that it would be carried out, such fraud and artifice have been practiced as will warrant relief in equity.

The judgment of the district court is affirmed. Affirmed

PRESUMPTION.

certain property of plaintiffs, whereby they were put to expense in defending the action, were unable to dispose of the attached property, and were injured in their business and credit. Held to state sufficient facts.

6. In an action for malicious prosecution, it is competent to show, as an element of damage, injury to the reputation sustained thereby. 7. In an action for the malicious prosecution of an attachment suit, it is competent to show damages sustained by reason of being unable to dispose of the attached property.

8. In an action for malicious prosecution, it is competent to show defendant's financial standing and ability to respond to judgment.

9. In an action for the malicious prosecution of an attachment suit, it is proper to prove what people have said in relation to the attachment, as affecting the business reputation of the person wrongfully subjected thereto.

10. The admission in testimony of lettered exhibits, not offered until after the case has been closed, is within the discretion of the trial judge.

Appeal from district court, Pueblo county. Action by N. E. Guyot and another against Julia B. French. From a judgment in favor of plaintiffs, Arthur Lord and another, substituted for Julia B. French, deceased, appeal. Affirmed.

Whitford, Whitford & May, for appellants. Henry A. Dubbs, for appellees.

STEELE, J. In December, 1893, N. E. Guyot and S. H. Guyot executed and delivered to Sarah J. Emmons their certain promissory note for the sum of $5,000, payable in December, 1894. Suit was brought upon this note in the district court of El Paso county in March, 1895, and at the same time writs of attachment were issued and levied upon the property of the defendants. Subsequently the plaintiff, S. J. Emmons, directed a dismissal of the suit, declaring that the suit had been brought without her authority, and that the promissory note had been paid. When the motion was made to dismiss the suit, Julia B. French was, upon her statement that she was the owner of the note against the Guyots, substituted as party plaintiff. The suit was subsequently, and in 1896, dismissed. In August, 1896, N. E. Guyot and S. H. Guyot brought suit in the district court within and for the 'county of Pueblo against Julia B. French for damDemurrer was ages in the sum of $20,000. interposed to this complaint and sustained, and on the 6th of April, 1897, their amended complaint was filed, in which are alleged, among other things, the execution and delivery of the note mentioned herein to Sarah J. Emmons, the payment thereof before maturity, and that after the maturity of the note the said defendant, having unlawfully come into the possession of the same, did, for the purpose of injuring plaintiffs in their business operations, and damaging them in their credit, and in wanton and reckless disregard of the rights of the plaintiffs, unlawfully and without authority, maliciously and

8. See Malicious Prosecution, vol. 33, Cent. Dig. § 150.

without probable cause, cause to be instituted the action which is mentioned herein, and that the said Julia B. French did at the same time, maliciously and without probable cause, cause writs of attachment to be issued and levied upon various mining properties and other real estate of the plaintiff's situate in the counties of El Paso and Pueblo, and state of Colorado. The ninth allegation of the plaintiffs' amended complaint is as follows: "Plaintiffs allege that they were compelled to, and did, lay out and expend the sum of six hundred dollars for attorney's fees and other necessary expenses in resisting the action instituted by defendant as aforesaid, and procuring a dissolution of the said attachment; that the levy of said writs of attachment for a long time embarrassed and incumbered these plaintiffs in the management and disposal of all their property so levied upon as aforesaid, and prevented plaintiffs from making sales or disposing of the same in any way; and that the said action of the defendant harassed, vexed, and annoyed plaintiffs, and likewise damaged and injured them in their reputations and business credit, all in the sum of twenty thousand dollars." To this complaint the defendant answered, denying the allegations of the complaint, and alleging, among other things, that the said note was delivered to her by Sarah J. Emmons as collateral for an indebtedness. She admits that the suit was instituted, and that the property of the defendant was levied upon, and denies that she maliciously caused the suit to be instituted. She further says that she fully explained to her attorneys her case, as she was advised, and concealed from them no material fact, and that all that she did in reference to said suit she was advised to do by them, and that in all she did she was advised that she was authorized to do so by law, and that she acted without malice and with an honest purpose. In an amendment to her answer she alleges that she conducted the correspondence leading up to the bringing of the said suit for and on behalf of the said Sarah J. Emmons, and as her agent and representative, and not in her own behalf; that in so doing she acted without malice, and simply as the agent of the said Sarah J. Emmons. The trial occurred in February, 1900, and resulted in a verdict and judgment in favor of the plaintiffs for the sum of $4,600, from which judgment the defendant appeals.

The certificate of the judge to the bill of exceptions states that the bill contains "all the evidence offered or introduced on behalf of each or all of the parties to said action upon the trial thereof, save as shown by the stenographer's certificate to be missing." The stenographer's certificate states that the bill contains a "true, perfect, full, and complete transcript of the evidence, except exhibits numbers 11, 16, 17, 23, 34, 47, 59, and 91, which I have been unable to find

** * *

since the trial; also part of 90." Instructions appear in the record and in the bill of exceptions. The certificate of the clerk dated September 4, 1900, is as follows: "I certify the above and foregoing to be a true, perfect, and complete copy of ali the files and orders of court, together with the original bill of exceptions." There is no certificate appended to the bill or to the transcript certifying that it contains all of the instructions given by the court, or that it contains instructions offered and refused. Each and every instruction is excepted to in the following language: "To the giving of which instruction, the defendant, by counsel, then and there duly excepts." It nowhere appears from the bill that objection was made to any instruction given. The same form was used upon the refusal of the court to give the instructions which appear in the bill. The bill does not contain an exception to the judgment, but an exception to the judgment appears in the journal entry of the clerk.

It has been uniformly held by this court that an exception to the judgment by bill is necessary, and that a journal entry of the clerk, noting an exception, is not sufficient to warrant the court in considering the question as to whether or not the evidence is sufficient to support the finding. Indeed, in the case of Colorado Fuel Co. v. Maxwell Grant Co., 22 Colo. 72, 43 Pac. 556, it was held that: "Under the uniform decisions of this court and the court of appeals, an exception to the final judgment, properly preserved and brought into the record by a bill of exceptions, is essential to obtain a review of the judgment upon the facts, or the law as applied to the facts. Upon this record, therefore, we are limited to the consideration of those assignments based upon exceptions, duly preserved, to the rulings of the trial court upon the admission and rejection of testimony." We cannot determine from an inspection of the record as a whole that the instructions appearing were all the instructions given. There is no certificate by the judge or clerk, nor is there a recital in the record or bill from which we can conclude, that the instructions contained in the record proper or in the bill were all the instructions given by the court. Therefore we cannot consider the assignments which relate to the giving and refusing of instructions, and we must presume that the court properly applied the law to the facts upon the trial. Moreover, the exceptions taken by the defendant to the instructions claimed to have been given in no way called the attention of the court to any objectionable matter. The instructions, with one or two exceptions which are unimportant, contain more than one proposition of law; and it has been held by this court that a general exception to an instruction which contains more than one proposition of law is not an exception which entitles the party to have the alleged error reviewed in this court.

Counsel say that subdivision 7 of section 187 of the Code requires the judge to file with the clerk the instructions given and the instructions offered and refused, and that, inasmuch as the record recites that the instructions which appear therein were filed in the clerk's office, we should presume that the judge complied with the law, and filed, as directed by the Code, all the instructions given and refused. The statute does require the judge to file the instructions with the clerk, but it also requires him to indorse the instructions, indicating the action of the court. And subdivision 6 of the same section requires that the instructions shall be signed by the judge. The instructions appearing do not bear the signature of the judge, nor do they contain any indorsement; and we cannot indulge the presumption which counsel suggests, that the court has performed his duty, and that all the instructions given or refused were filed in the clerk's office. Being unable to determine what instructions were given by the court, we cannot pass upon the questions raised by the refusal of the court to give the instructions which appear in the record. The Code makes it unnecessary that the instructions, with the indorsements, should be made a part of the bill of exceptions; and this court can review instructions which appear in the record with the proper indorsements and bear the signature of the judge, when proper objections, and exceptions are preserved by bill. We can also review instructions which are contained in the bill of exceptions, with proper objections and exceptions, and bearing the signature of the judge, | with proper indorsements; but where it does not appear, either from the record or the bill of exceptions, that the instructions contained therein are all the instructions given by the court, we cannot consider exceptions or objectons made thereto.

For the reason, then, that there is no exception in the bill of exceptions to the judgment rendered, and for the reason that it does not appear that the instructions were all the instructions given, our investigation of this case must be confined to the assignments which relate to the receiving of testimony over the objection of the defendant, and the assignment which alleges that the complaint does not state facts sufficient to constitute a cause of action.

Assignments numbered 43, 46, 47, 48, and 49 relate to the alleged error of the court in permitting the witness S. H. Guyot to testify over the defendant's objection, but an inspection of the bill of exceptions shows that exceptions were not taken to the ruling of the court.

The witness Guyot was permitted, over the objection of the defendant, to testify to the value of the interests he held in the mining property levied upon under the writs of attachment. He was also permitted to testify as to the value of a one-third interest in the Baltimore and Maryland claims. He was also

permitted to testify as to what, if any, effect the levying of the attachments had upon his business, and as to the financial resources and wealth of the defendant, Julia B. French. He was also permitted to testify that, although the record title to certain mining claims was in other persons, he was the owner of them, and was permitted to state how he was handling the property. The witness T. C. Bradford was permitted to tell what he had heard people say about the attachment, as affecting the business standing and reputation of the plaintiffs; and the witness L. H. Johnson was permitted to testify that the attachments levied upon the mining prop erty of the Guyots affected their business standing. After the case was closed, the defendant offered Exhibits A, B, C, D, E, F, G, and H. The court refused to receive them, upon the ground that the case had been closed.

In suits

The overruling of the objections to the testimony stated herein, and the refusal to admit in evidence the lettered exhibits, is assigned as error. The amended complaint was not demurred to, and it is objected that it does not state facts sufficient to constitute a cause of action. We cannot agree with counsel. The complaint states in general terms a perfect cause of action, in our judgment. It specifies with some particularity special damages which were sustained by the wrongful seizure under the attachment, and while, upon motion, the complaint might have been made more specific, it stated a cause of action against the defendant. The suit was brought alleging damages for the malicious prosecution of a suit against the plaintiffs. of that character, it is competent to show, as an element of damage, an injury to the reputation of the person against whom the suit is prosecuted. Lawrence v. Hagerman, 56 Ill. 69, 8 Am. Rep. 674. In such suits it is also competent to show damages sustained by reason of a party being unable to dispose of the property levied upon, and we find no error in the overruling of defendant's objection to this class of testimony. In cases of malicious prosecution it is also competent to show the financial standing and ability to respond to judgment of the defendant, and the court did not err in permitting the witness Guyot to testify to the financial standing and wealth of the defendant. Courvoisier v. Raymond, 23 Colo. 113, 47 Pac. 284.

The witness Bradford testified to what he heard other people say in reference to the attachment suit, as affecting the business standing and reputation of the Guyots. Upon the trial it was objected that the testimony was hearsay, but in cases of this character, wher one's reputation is affected, and the effect on the reputation is made an element of damage, there is no other way to establish the fact.

The lettered exhibits offered by the defendant were refused because not offered until