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, 85 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.

(18 Colo. App. 250)

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 corpo.ration 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. Judg ment 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.

(18 Colo. App. 222)

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.

Colo. App. 242)

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' Anu. 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. Held, 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 December, 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 con-. structed 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

of their construction, to make special assessments against adjacent lots and lands. Mills' Ann. St. 4403, subd. 10. With respect to the case before us, the limits of the powers of municipal corporations in relation to sewers are defined in the foregoing subdivision. It was said by Chief Justice Field in Zottman v. City and County of San Francisco, 20 Cal. 96, 81 Am. Dec. 96, that the rule is general, and applies to the corporate authorities of all municipal bodies, that, where the mode in which their power on any given subject can be exercised is prescribed by the charter, the mode must be followed. This utterance was referred to with approval by our own supreme court in Keese v. City of Denver, 10 Colo. 112, 15 Pac. 825, in which case it was held that, where the statute has prescribed how the municipality may act, it has no power to act in any other or different manner. The same doctrine is announced by Judge Dillon, who says further that the public powers or trusts devolved by law or charter upon the counsel or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others. 1 Dill. Mun. Corp. § 96. See, also, 1 Beach, Pub. Corp. 542. The statute to which we have referred empowers municipal corporations to construct sewers and to regulate their use, and provides a method by which the cost of their construction may be defrayed. Ownership and control, except in the municipality, would be inconsistent with its terms. The ordinance in question undertook to convert the sewer system of Canon City into private property, and vest the power conferred by law upon the town authorities in individuals. It did more. It assumed to confer a power upon those individuals which it did not possess itself, namely, to charge and collect annual rental for the use of the system. In the absence of statutory authority, it was powerless to turn the construction, maintenance, and control of its sewers over to private parties. Further, there is no provision by which it might compel the payment to it by its citizens of compensation for the privilege of using its sewers; and, even if it might delegate powers which it actually possessed, it could not create a power. What it did not have it could not give. In our opinion, the ordinance was an absolute nullity, and no right or interest of any kind was acquired under it.

But for the plaintiff it is said that the defense of the invalidity of the ordinance should have been specially pleaded. We cannot assent to the proposition. The plaintiff alleged ownership of the sewers. The denial of ownership rendered it incumbent upon the plaintiff to prove facts from which ownership would result. It compelled the plaintiff, in order to entitle it to a recovery, to establish its title. It sought to do this by introducing an ordinance which on its face was void, and from which no title could be deduced. Relying solely upon that ordinance

as the source of its title, it failed in its proof. The denial of title involved a denial of all the elements of title; and while, if the ordinance had possessed apparent validity, and facts aliunde were relied upon to show its invalidity, it might have been necessary to plead them, yet, being on its face no evidence of title, as against the denial it was without effect. See Israel v. Day (Colo. App.) 68 Pac. 122.

The judgment will be reversed and remanded, with instruction to dismiss the suit. Re versed.

(18 Colo. A. 253) COLORADO TRADING & TRANSFER CO. V. ACRES COMMISSION CO. (Court of Appeals of Colorado. Dec. 8, 1902.) FRAUDULENT CONVEYANCE CREATION OF CORPORATION-REMEDY BY ATTACHMENTRIGHTS OF CREDITOR TAKING CORPORATE STOCK.

1. A commission firm, indebted in the aggregate for $1,955, and having assets invoiced at $1,400, but of the actual value of $650, organized together with an agent of one creditor, a corporation, to which its assets were transferred. The firm executed its check to the creditor thus represented, in satisfaction of his debt, and at the same time the creditor gave to the firm his check for a like amount in payment for a half interest in the corporation. Held, that the transfer to the corporation was a fraud on the other creditors of the firm.

2. The creditor represented in the formation of the corporation, having full knowledge of the facts, and having placed himself in the position of a satisfied creditor who had purchased a half interest in the corporation after it was formed, could not protect himself as a preferred creditor.

3. A creditor defrauded by the transfer of his debtor's assets may proceed against the property by attachment.

Appeal from Teller county court.

Action by the Colorado Trading & Transfer Company against the Acres-Bainard Commission Company, a partnership, in which the Acres Commission Company, a corporation, intervenes. Judgment for intervener, and plaintiff appeals. Reversed.

Chas. D. Gurney, for appellant.

WILSON, P. J. The evidence discloses the following state of facts: On December 13, 1898, Walter H. Acres, Austin E. Acres, and W. J. Bainard, as copartners, were, and for some time previous had been, engaged, under the firm name and style of the Acres-Bainard Commission Company, in carrying on a general wholesale and retail hay, grain, flour, feed, produce, and fuel business in the Cripple Creek mining district, at the town of Victor. That on said day this firm was indebted to the appellant company in the sum of $900, and to one G. E. Ady, who was engaged in a similar business at the city of Denver, in the sum of $1,055; making a total indebtedness by the firm of $1,955. That on said day the assets of the firm, consisting princi

3. See Attachment, vol. 5, Cent. Dig. § 92; Fraudulent Conveyances, vol. 24, Cent. Dig. 665.

pally of office furniture and fixtures, and horses and wagons used in carrying on the business, were valued by the firm at about $1,400; but the court, in the trial of this suit, found the value to be only $650. On said December 13th the members of the firm, in connection with a Mr. Hulkill, who was the agent and representative of the creditor, Ady, organized a corporation to be known as the Acres Commission Company, the articles of incorporation being signed by Hulkill and the two Acreses; and to this corporation the commission company conveyed its property by bill of sale of date December 14th. This corporation was formed, and the property of the old firm transferred to it, at the suggestion of the creditor, Ady; he proposing to take a half interest in it. Contemporaneous with this, on the same day, the Acres-Bainard Commission Company gave to Mr. Ady its check or draft on a bank for $1,000, which is claimed to have been in part payment of its indebtedness to him; and at the same time Mr. Ady gave to the commission company his personal check or draft on a bank for $1,000, which it is claimed was in payment for a one-half interest in the corporation. As, however, this amount exceeded the inventoried value of the one-half of the property of the corporation by $300, the members of the Acres Commission Company gave to him their notes for $300. The balance of $55 on the Ady debt was subsequently paid in some other way, it is claimed. During all of this time Mr. Ady had full knowledge of the indebtedness to appellant by the Acres-Bainard Commission Company. There was no apparent change in the conduct and management of the business. The same Mr. Acres who had the charge and management of it prior to the incorporation had the same afterwards. Subsequently the appellant commenced suit on its account against the parties composing the firm of the Acres-Bainard Commission Company, and seized under writ of attachment a part of the property formerly belonging to the firm, and transferred by it to the corporation. Thereupon the corporation intervened, claiming ownership of the property attached; and, judgment being in its favor, the appellant appeals. There is no conflict of evidence as to the facts upon which the question presented on this appeal depend. The testimony discloses no dispute between the parties, except as to the value of the property. The usual rule, therefore, which precludes this court from reviewing the findings of the trial court upon questions of fact unless manifestly against the evidence, does not prevail.

It seems clear to us from the facts presented that the attempted transfer of the property to the corporation was without consideration and voluntary, and, the commission company being at the time clearly insolvent, was a fraud upon its creditors. This being the case, the appellant creditor had a right to treat the pretended transfer as a nullity,

and to proceed against the property, as he did, by attachment. It is not pretended that. there was any consideration for the transfer moving from the corporation. Mr. Ady knew at the time that the firm was insolvent, and also the fact of its indebtedness to appellant. He was hence in no sense an innocent purchaser for value, without notice, even if he did pay the sum claimed as a bona fide consideration. But the evidence shows that he was dealing with the firm as a purchaser, not as a creditor. He bought from it a one-half interest in the corporation to which its assets were subsequently transferred by bill of sale without any consideration. No question as to the right of an insolvent debtor to prefer a creditor is involved. The transfer by the debtor firm was not to Mr. Ady. The corporation to whom the transfer was made was not a creditor. Besides, if it be conceded that the giving of the draft for $1,000 by the firm to Mr. Ady was intended bona fide as payment of the firm's indebtedness to him, and was so received, then it must be held that thereupon Mr. Ady immediately ceased to be a creditor, and that, in subsequently buying from the firm a one-half interest in the corporation, he was not dealing with it as a creditor, and had full knowledge of appellant's rights. It is, however, with the dealings between the corporation and the commission firm that we are specially concerned, and upon which this appeal depends, and not with the transactions between the firm and Mr. Ady. Giving due consideration to all of the facts and circumstances shown by the evidence, we think there can be uo other reasonable conclusion than that the transfer to the corporation was a fraud upon the appellant and other creditors, if any existed. Fraud is a conclusion of law from the facts stated, and it may be committed in or arise from the transfer of a debtor's property to a corporation, as well as by the transfer to an individual. We cite a few authorities in support of the views above expressed: Robinson v. Canal Co., 2 Colo. App. 26, 29 Pac. 750; Knapp v. Day, 4 Colo. App. 24, 34 Pac. 1008; Rose v. Dunklee, 12 Colo. App. 412, 56 Pac. 342; Wells v. Bank, 23 Colo. 541, 48 Pac. 809; Booth v. Bunce, 33 N. Y. 157, 88 Am. Dec. 372; Kellogg v. Bank, 58 Kan. 44, 48 Pac. 587, 62 Am. St. Rep. 596; Terhune v. Skinner (N. J. Err. & App.) 19 Atl. 377; Cook, Corp. (4th Ed.) § 675; Thomp. Corp. § 4155.

The judgment will be reversed. Reversed.