asks interest thereon, is sufficient, in the absence of any objection thereto, to admit proof of the facts constituting such delay; and where judgment is rendered by default against defendant, for the interest claimed, it will be presumed that such proof was offered.

2. Code Civil Proc. § 55, provides that, where misjoinder of causes of action appears on the face of the complaint, advantage thereof must be taken by demurrer. Sections 59, 60, restrict the right to raise the question of misjoinder to answer, if the fact does not appear in the complaint, and provide that, in case of a failure to take advantage of the defect in either one of these two ways, it will be deemed waived. Held, that a judgment by default, in an action in which there was no appearance by defendant, will not be reversed because there was a misjoinder of causes of action.

Error to district court, Arapahoe county. Action by Seth W. Morrison, Alonzo M. Morrison, and Homer W. Bingham, late copartners as Morrison, Bingham & Co., against Taylor B. Keys, on promissory notes and accounts. There was a judgment entered by default in favor of plaintiffs, and defendant brings error, Affirmed.

Browne, Putnam & Preston, for plaintiff in error. Benedict & Phelps, for defendants in error.

BISSELL, P. J. In 1890, Morrison, Bingham & Co. brought suit against Keys on several different causes of action. The plain tiffs counted upon several promissory notes, on an account for goods sold and delivered to Keys and another as copartners, and also on an account against Keys, Hinkle & Keys for a specified sum. The complaint claimed interest on the sums named in the second two causes of action because the money had been withheld in a manner which was the legal equivalent of the "unreasonable and vexatious delay" specified in the statute giving the right to interest in certain cases. The summons was served, the defendant made default, and judgment was entered for the amount claimed, with interest. Keys sued out a writ of error to reverse the judgment, and brought up simply a transcript of the record, which contains a copy of the complaint, the summons, and the orders and judgment entered. He assigns various errors, but discusses only two, and these will be all which will be either discussed or considered in determining the case.

He seems seriously to contend that the judgment is erroneous because the court entered judgment for the interest which the plaintiffs asked under their allegation that there had been an "unreasonable and vexatious delay" in the payment of the several accounts for which the suit was brought. In support of this contention, he cites the cases of Hawley v. Barker, 5 Colo. 118, and Corson v Neatheny, 9 Colo. 212, 11 Pac. Rep. 82, which undoubtedly hold that interest is only

recoverable in those cases which are specified in the statute, and that mere delay to pay is not necessarily the "unreasonable and vexatious delay" which the statute requires in order to permit the recovery of interest. Conceding this to be true, the contention furnishes no basis for the reversal of the judgment. The complaint alleged that there had been this sort of delay in the payment of the money, and the plaintiffs prayed to recover interest on that hypothesis. It is doubtless true that a general allegation of delay, even though it be averred to be vexatious and unreasonable, is not an apt and artistic method of pleading; and the pleader, on the interposition of a demurrer, or a proper motion, if one would lie, might compel an exact and specific statement of the facts constituting the delay, or else object to the introduction of proof concerning it. Where, however, as in this case, there was no appearance on the part of the defendant, and he took no action in the premises, it cannot be said that the pleading was so totally defective that proof could not be introduced thereunder. Since this is true, we must presume, for the purposes of upholding the judgment, that the plaintiffs introduced such evidence in support of that allegation as would justify the entry of the judgment which the court gave.

The plaintiff in error likewise insists that there was a misjoinder of causes of action, and that, according to the very plain allegations of the complaint, it is evident that the causes did not come within the statutory provisions which authorize the union of several in the same suit. This may be true, but it is unavailable. The Code of Civil Procedure provides that a demurrer shall lie for the misjoinder of causes of action, and further enacts that advantage must be thus taken of this defect, if it exists, and is apparent on the face of the complaint. It' likewise restricts the right to raise this question to answer if the fact be not thus apparent, and provides that, in case of a failure to take advantage of the error in either one of these two ways, it shall be deemed a waiver of the mistake. These several Code provisions clearly dispose of this contention. The judgment was entered after default; the defendant neither demurred to the complaint. nor set up by answer that there was a misjoinder of the causes of action; and the court had the right to enter judgment notwithstanding the fact that the complaint might have been vulnerable to attack in respect of these matters. These two errors which are presented to the consideration of the court do not require us to disturb the judgment, and it will therefore be affirmed.

(2 Colo. App. 505)

FAUST et al. v. SMITH. (Court of Appeals of Colorado. Sept. 25, 1893.)

ACTIONS-JOINDER-PARTNERSHIP.

A cause was entitled against a firm, the summons directed to the firm, and the attachment issued against firm property. The complaint stated a separate cause of action against each partner as an individual. Held that, if against the firm, the complaint stated no cause of action; if against the individuals, it misjoined causes of action.

Error to Phillips county court.

Action by Frank M. Smith against William H. and Mahlon Faust, trading as the Faust Lumber Company. Judgment for plaintiff. Defendants bring error. Reversed.

Bartels & Blood and W. D. Kelsey, for plaintiffs in error. J. S. Bennett and P. J. Dempster, for defendant in error.

THOMSON, J. Frank M. Smith brought his action in the court below against William H. Faust and Mahlon Faust, partners under the firm name and style of the Faust Lumber Company. A writ of attachment was issued in the case, under and in pursuance of which certain moneys due the copartnership were garnished. The cause of action stated in the complaint is an indebtedness from William H. Faust for medical services rendered and medicines furnished to him by the plaintiff, and at his special instance and request, and an indebtedness from Mahlon Faust for medical services rendered and medicines furnished to him by plaintiff, and at his special instance and request. The defendants demurred to the complaint, for the following among other reasons: First, that the complaint did not state facts sufficient to constitute a cause of action; and, second, that several causes of action were improperly united in the complaint. The demurrer was overruled, and judgment given against each defendant for the amount of plaintiff's claim against him. The defendants bring the case here by writ of error.

The plaintiff's theory of his case is not obvious. Whether it was intended as a suit

against the copartnership, or as a suit against the individual defendants, does not very clearly appear from the record. The cause is entitled against the firm. The summons is directed to the copartnership by its firm name, and the writ of attachment commands the sheriff to attach the property of the firm; while the complaint alleges a distinct and independent indebtedness against each member of the firm. If we consider this as a suit against the firm, then no cause of action is stated in the complaint, because the indebtedness it sets forth is not a partnership indebtedness. If, on the other hand, we regard it as a suit against the individual defendants, then several causes of action are improperly united. Section 70 of the Civil Code permits certain

causes of action to be united in a complaint, but they must affect the parties in the same character and capacity. Here a claim is made against each defendant, with which the other has no connection, direct or remote, and by which he is not affected in any character or capacity. In either view of the case, the demurrer should have been sustained, and, because it was overruled, the judgment must be reversed.

(3 Colo. App. 459) WEBER, Sheriff, et al. v. BAESSLER et al. (Court of Appeals of Colorado. Sept. 25, 1893.)

SALE-STOPPAGE IN TRANSITU-DELIVERY.

A merchant, having become insolvent, and lost possession of his stock of goods by levy, was presented with a bill for freight and delivery charges on goods ordered before his insolvency, by the collector of a city transfer company, to which he had given a general order to transfer goods shipped to him from the depots to his store. He refused to pay the bill, or receive the goods, explaining his reasons, and advising the collector that the goods should be returned to the seller. The company, however, delivered the goods at his old place of business, and accepted payment of the charges from the sheriff in possession, who forthwith levied on them. Held, that the transfer company was not the merchant's agent to take and keep the goods, so that the delivery to it would end the transit, and, on demand, the seller was entitled to the right of stoppage in transitu.

Error to district court, Arapahoe county.

Action by Alvin Baessler and others, trading as Baessler & Co., against A. H. Weber, sheriff of Arapahoe county, and others, for possession of certain goods. Judgment for plaintiffs. Defendants bring error. Af

firmed.

M. B. Carpenter and W. N. McBird, for plaintiffs in error. James A. Kilton, for defendants in error.

THOMSON, J. This action is for the possession of personal property. The cause was submitted to the court below on the following agreed statement of facts: On June 1, 1889, Thursie & Anderson, who were partners doing a retail shoe business in the city of Denver, ordered from the defendants in error, (plaintiffs below,) who were partners engaged in manufacturing, and selling at wholesale, shoes, at Buffalo, N. Y., a bill of shoes, amounting, in the aggregate, to the sum of $297. The plaintiffs, Baessler & Co., filled the order, and shipped the same June 19, 1889, by railroad freight, to Thursie & Anderson, at Denver. No part of the price of the shoes has been paid, the time for payment being 60 days after the filling of the order. The value of the goods is $297. On June 28, 1889, the goods arrived in Denver over the Union Pacific Railroad, shipped in the usual course of business. June 21, 1889, Thursie & Anderson became, and still are, insolvent. On the last-mentioned day, several judg ments were rendered against them, and their

stock of goods seized under executions issued on the judgments; and on the next day, June 22d, an attachment was sued out, and levied upon the same stock, subject to the prior levies. All of these levies were made by the defendant, as sheriff, who took the goods into his possession, and closed up the business house of Thursie & Anderson. On the 22d of July, 1889, the plaintiffs in the attachment suit recovered judgment against Thursie & Anderson, and caused execution to be issued, and placed in the hands of the defendant, as sheriff. On June 28, 1889, the City Transfer Company, a common carrier in the city of Denver, to whom the goods 'had been transferred for final delivery, according to the custom in such cases, presented to P. A. Anderson, a member of the firm of Thursie & Anderson, a bill for freight and delivery charges on the goods. This bill Anderson declined to pay, and at the same time declined to receive the goods, informing the agent of the transfer company that the defendant, as sheriff, had closed up the store of the firm, and levied upon all its goods, and that the goods in question should be returned to the plaintiffs, Baessler & Co., and not delivered at the firm's old place of business. Afterwards, and on the same day, the transfer company delivered the goods to the defendant sheriff, at the old place of business of Thursie & Anderson, and took his receipt for the same. At the time of receiving the goods, the defendant sheriff paid to the transfer company the freight charges due. The defendant, having thus obtained possession of the goods, levied upon them, as sheriff, under the attachment mentioned, and after July 22, 1889, levied upon them under the execution issued upon the judgment in the attachment suit. The plaintiffs, Baessler & Co., tendered to the defendant the amount of freight charges paid by him, and demanded possession of the goods, but defendant refused to deliver possession, or accept the freight charges. The plaintiffs, Baessler & Co., did not know of the failing circumstances of Thursie & Anderson, or of the attachment, judgments, and executions against them, until June 26, 1889, when they immediately set about stopping the goods in transitu, making such effort as they could in that direction. Prior to the delivery of the goods to the transfer company by the Union Pacific Railroad Company, Thursie & Anderson had given the transfer company a general order to obtain all freight received for them at any railroad station in Denver, which order was in force June 28, 1889, at the time the transfer company received the goods. At the time the transfer company received the goods, it had no notice of the failing circumstances of Thursie & Anderson, and the Union Pacific Railroad Company had not received instructions to stop the goods. Upon these facts, the court found that the plaintiffs were entitled to the possession of

the goods, and rendered judgment accordingly. The defendants come here by writ of

error.

The application of the doctrine of stoppage in transitu to the foregoing facts constitutes the only controversy in this case. A vendor has the right to stop goods sold and unpaid for, while they are in intermediate hands, in case the vendee becomes insolvent before he has acquired the actual possession of them. The origin of the doctrine is involved in some obscurity, and the reasons on which it is based are differently, and not very satisfactorily, stated by different courts; but the right of the vendor to resume possession of goods which have not been paid for, while on their way to the vendee, or still undelivered to him, in case of his inThis solvency, is thoroughly established. right must be exercised while the goods are on their passage, and before possession is taken by the vendee; and if they have ceased to be in transit, and have come into the hands of the vendee, or of his agent for custody, the vendor's right of stoppage is defeated. The goods are regarded as in transit until they have passed out of the possession of every intermediate agency, and have been actually delivered to the consignee; and, until the transit has been de termined by such actual delivery, the right of the vendor to reclaim the goods is unimpaired. This right is not affected in the slightest degree by any intervening seizure of the goods at the suit of creditors of the vendee. While it exists, it is paramount to any other lien or claim. Smith v. Goss, 1 Camp. 282; Buckley v. Furniss, 15 Wend. 137; Hill. Sales, 289; Morris v. Shryock, 50 Miss. 590. It is contended that the general order given by Thursie & Anderson to the City Transfer Company, authorizing the delivery to it of all freight received for them at any railroad station in Denver, constituted the transfer company their agent, so that the delivery to it of the goods in question was a delivery to them, and that upon such delivery the transit was at an end. We do not think this position tenable. The City Transfer Company was a common carrier. It carried goods for the public, and not specially for Thursie & Anderson. The order was merely the designation of that company as the agency through which they desired their goods to be transported from the railroad stations in Denver to their place of business. These goods were transferred to it for final delivery. According to the custom in such cases, it presented, by its collector, to Thursie & Anderson, the bill for freight charges on the goods, so that it seems to have been the agent of the railroad companies to collect freight money due them, as well as the agent of consignees for the delivery of goods; and it is to be inferred from the language of the agreed statement that the payment of these freight charges by Thursie & Anderson to it was a condi.

tion precedent to the delivery by it to them of the goods of which they had taken charge. It is clear that the City Transfer Company was simply the last carrier between the city of Buffalo, where the goods were originally shipped, and the place of business of Thursie & Anderson, in Denver, and so connected with the different lines over which the goods were transported that it collected the entire charges for carriage, including its own. Its relation to Thursie & Anderson was therefore that of common carrier selected by them to do their business, and nothing more. But there is another reason why the delivery of the goods to the company was not such delivery as would cut off any right of plaintiffs. It is true that final delivery, so as to determine the transit, may be made to an agent, as well as to the principal; but such agent must be an agent to receive possession of the goods, and keep them for the principal. A delivery at the station to the vendee himself, or to his servant sent by him for the purpose of receiving them, is a delivery to him; but a delivery to an agent, whether he be the agent of the vendor or the vendee, who holds the goods merely for the purpose of transmission to the vendee, is not final delivery. Story, Sales, § 334; 2 Benj. Sales, (Rev. Ed., pp. 1071, 1072,) §§ 1247–1249; Morris v. Shryock, supra. The delivery of the goods by the railroad company to the transfer company was therefore not a delivery to Thursie & Anderson; and, during the time they were in the possession of the transfer company, they were still in transit, and subject to stoppage by the plaintiffs. They were not delivered to Thursie & Anderson at all. Thursie & Anderson refused to receive them, and directed that they should not be delivered at their old place of business, but should be returned to the plaintiffs. The transfer company, afterwards, in disobedience of those directions, delivered them, at the old place of business of Thursie & Anderson, to the defendant sheriff. Down to the moment of that delivery, the goods were in transit. What was the effect of such delivery to the defendant? He was not the agent of Thursie & Anderson, or of the plaintiffs. He was a stranger. A delivery to him was certainly no delivery whatever to Thursie & Anderson. The transfer company held the goods subject to the right of recall by the plaintiffs. It was not in its power to do anything by which that right could be defeated or compromised, except to deliver the goods to the consignees, and this it did not do. It could transfer to the defendant no greater right to the goods, or dominion over them, than it possessed; so that the defendant, in taking the goods, assumed the same relation to Thursie & Anderson, and to the plaintiffs, which had been occupied by the transfer company. By the transfer to him, and by his acts, as an officer, in levying the writs, the rights of

the plaintiffs in respect to the goods were not changed in the smallest particular. It does not appear when demand was made by the plaintiffs upon the defendant for the goods, but it is presumed that proper diligence was exercised in that regard. No complaint is made of undue delay. By the demand, the right of stoppage in transitu was properly exercised, and from the time of the demand the plaintiffs were entitled to the possession of the property. More v. Lott, 13 Nev. 376; Kingman & Co. v. Denison, 84 Mich. 608, 48 N. W. Rep. 26; Clark v. Bartlett, 50 Wis. 543, 7 N. W. Rep. 663; Morris v Shryock, supra; Grout v. Hill, 4 Gray, 361. The judgment is correct, and will be affirmed.

(3 Colo. App. 502)

SAULT v. PEOPLE. (Court of Appeals of Colorado. Sept. 25, 1893.)

RECEIVING STOLEN PROPERTY-VARIANCE.

Where the information on which defendant was tried charged that he received stolen property "from some person to the district attorney unknown," and the evidence for the prosecution showed that before the information was prepared the district attorney was informed as to who stole the property, and from whom it was received by defendant, the variance is fatal.

Error to district court, Arapahoe county. Samuel H. Sault, having been convicted of receiving stolen property, brings error. versed.

Re

Robert W. Bonynge, for plaintiff in error. Eugene Engley, Atty. Gen., for the People.

THOMSON, J. Samuel H. Sault, plaintiff in error, was convicted of receiving stolen goods. The information upon which he was tried charges that he received the property from some person to the district attorney unknown. The principal witness for the prosecution was one Charles Edwards, who swore that he stole the goods, and sold them to the defendant Sault. He also testified that, before the information was drawn, he was in the office of the district attorney and told him that he had stolen the goods, and sold them to Sault; that he made this statement to Col. Dennison. The record shows that Dennison was the deputy district attorney, who verified the information. There was no other evidence on that point in the case made by the prosecution. At the close of the case for the people, counsel for defendant, Sault, moved the court to discharge the defendant, for the reason that the information charged that the goods were received by Sault from some person to the district attorney unknown, whereas the testimony showed that at the time the information was prepared the name of the person from whom the goods were received was known to the district attorney. was denied. This was error.

The motion "As it is re

quired, in indictments, that the names of the persons injured, and of all others whose existence is legally essential to the charge, be set forth, if known, it is, of course, material that they be precisely proved as laid. Thus, the name of the legal owner, general or special, of the goods stolen or intended to be stolen, must be alleged and proven. And if the person be described as one whose name is to the jurors unknown, and it be proven that he was known, the variance is fatal, and the person will be acquitted." 3 Greenl. Ev. § 22. "Where a third person cannot be described by name, it is enough to charge him as a certain person to the jurors aforesaid unknown, which, as will presently be seen, is correct, if the party was at the time of the indictment unknown to the grand jury, though he became known afterwards.

* But if the third party's name be known to the grand jury, or could have been known by inquiry of witnesses at hand, the allegation will be improper, and the defendant must be acquitted on that indictment, though he may be afterwards tried upon a new one, in which the mistake is corrected." Whart. Crim. Pl. §§ 111, 112. "When a third person is described as a person to the grand jurors unknown, and it turns out that he was known to the grand jurors, the variance is fatal." Whart. Crim. Ev. § 97. Where the name of such third person, even if unknown, might have been ascertained by the use of reasonable diligence, the effect is the same as if the name was actually known. Jorasco v. State, 6 Tex. App. 238. The rule laid down by the authorities is not a mere arbitrary one. It is the right of a defendant in a criminal case to be informed of the charges against him as fully as it is in the power of the prosecution to inform him, so that he may be enabled intelligently to prepare his defense. Where he is charged with larceny, the name of the person from whom the property was stolen; where with murder, the name of the person killed; where with receiving stolen goods, the name of the owner of the goods, and of the person from whom they were received,-must be set out in the indictment or information, and only the inability to ascertain such names will excuse the failure to give them. See, also, State v. Perkins, 45 Tex. 10; State v. Beatty, Phil. (N. C.) 52. The motion should have been sustained, and the defendant discharged. The judgment will be reversed.

Acts,") which fix the amount to be paid for certain kinds of animals by an arbitrary schedule of prices, and provide for the fixing of the value of other animals by appraisers without allowing proof of actual value, and which make the company absolutely liable, are unconstitutional, in that under them a railroad company may be denied the equal protection of the laws, and deprived of its property without due process of law. Wadsworth v. Railway Co., (Colo. Sup.) 33 Pac. Rep. 515, and Railway Co. v. Outcalt, 31 Pac. Rep. 177, 2 Colo. App. 395, followed.

Appeal from Mesa county court.

Action by John Vaughn against the Rio Grande Western Railway Company to recover damages for the killing by defendant of a horse belonging to plaintiff. From a judgment for plaintiff, defendant appeals. Reversed.

Charles F. Caswell, for appellant.

THOMSON, J. This is an action to recover damages for the killing of a horse belonging to the appellee, plaintiff below. The case was commenced before a justice of the peace, and there were no written pleadings. It was appealed to the county court, where judg ment was rendered against the defendant for $200 damages for the killing of the horse, and $100 attorney's fees. None of the evidence is preserved in the record, so that we are unadvised as to whether a recovery by plaintiff would have been authorized by tho rules of the common law; but, even if so, the judgment is erroneous, because the finding of the court is that the value of the horse was $100, and that sum, therefore, would be the limit of recovery. The judgment, however, is in terms based upon the statutory, and not the common-law, liability of the defendant. It is conceded that the plaintiff complied with the statutory requirements, and, under the evidence, was entitled to the judgment which was rendered in his favor, provided the statute itself is valid. The sole question presented by the argument is as to the constitutionality of sections 13 and 14, c. 93, of the General Statutes of Colorado, and the subsequent amendments to section 14. This section was amended by an act approved March 31, 1885, (Sess. Laws 1885, p. 304;) and again by an act approved April 6, 1891, (Sess. Laws 1891, p. 281.) Neither of the amendments made any substantial change in the original section, and they did not differ materially from each other. The constitutional question presented has been settled in this state, both by the supreme court and by this court. Wadsworth v. Railway Co., (Colo. Sup.) 33 Pac. Rep. 515; Railway Co. v. Outcalt, 2

1 Such statutes, known as the "Railroad Stock-Killing Acts," in substance fix the amount to be paid by the companies for certain kinds of animals by an arbitrary schedule of prices, and provide for the fixing of the value of other animals by appraisers without allowing proof by either party of the actual value of the stock killed. They also make the companies absolutely liable, without reference to the question of negligence.