pending payment of the draft on the A. Co. for price and freight. Plaintiff, a member of the A. Co., and its creditor already for money advanced, took up the draft, and paid the demurrage, and W., the A. Co.'s managing officer, placed the goods in store, as he testified, in plaintiff's name. The warehouse books credited them to the A. Co. Plaintiff took judgment against the A. Co. for his advances, including the amount paid for these goods, and the A. Co. transferred him all its property by a conveyance, which became absolute on the A. Co.'s failure to redeem in 15 days. Plaintiff testified that thereafter he notified a clerk at the warehouse that he would soon want the goods shipped to his factory, and would then pay the charges on them. Held, that he had failed to show any delivery of said goods, "followed by an actual and continued change of possession," as against attaching creditors of the A. Co.

2. On an issue of change in possession of goods, testimony of the warehouseman of conversations with his predecessors at the time of the transfer of the business to him as to the ownership of the goods, and his books, showing in whose name they stand, are competent evidence.

Appeal from district court, Las Animas county.

Replevin by Charles Springer against L. M. Kreeger, sheriff of Las Animas county, for goods seized by defendant on attachments. Judgment for defendant. Plaintiff appeals. Affirmed.

Northcutt & Franks, for appellant. Bo Sweeney and John A. Gordon, for appellee.

REED, J. In December, 1890, the Acme Fence Company, doing business in New Mexico, ordered a lot of wire from the St. Louis Wire-Mill Company. One hundred and eighty-five coils, which, with the freight added, were of the value of $869.50, were shipped by the wire-mill company, consigned to the Acme Fence Company at Trinidad, Colo. A draft was drawn for the amount by the ship per upon the consignee, which remained in the hands of the bankers for collection until March 9, 1891. The wire remained in the car and in possession of the railroad company until that date, and demurrage was charged by the railroad company, amounting to $105. Charles Springer (appellant) was a member of the Acme Fence Company. The company was embarrassed,-had no money. On that date Springer advanced the money and took up the draft. Harry Wigham, vice president and treasurer of the Acme corporation, went to Trinidad, and with money furnished by Springer paid the $105 demurrage, and had the wire stored in the warehouse of the Brown-Nanzanares Company, where it remained. Subsequently the Brown-Nanzanares Company was succeeded by the Forbes Mercantile Company, in the same building, and the wire remained in its custody. The Acme Company still being embarrassed, and indebted to Springer for money advanced, including the amount paid for the wire in store, in the sum of $6,223.39, Springer brought suit against it, and obtained a judgment for that sum. The judgment remaining unpaid, the Acme Company, on the 23d day

of May, 1891, conveyed to Springer all its property and assets, specifically including the wire in store; such conveyance and sale to become absolute if the company failed to pay and redeem within 15 days. The company failed to pay within the time specified. Appellee was sheriff of Las Animas county. On August 27, 1891, the Trinidad Waterworks Company and P. J. McMartin commenced suit in Las Animas county by attachments against the Acme Fence Company, which were levied upon the wire in store, and afterwards judgments were obtained, and appellee, as sheriff, was proceeding to sell the wire in satisfaction, when appellant brought this suit in replevin, and took the property. The trial was had to the court without a jury, the only question tried being the title to the wire. The other facts were covered by stipulation. The court found for the defendant, (appellee,) and the plaintiff prosecuted an appeal to this court.

Except the general assignment that the court erred in finding for the defendant, the only errors assigned are the admissions by the court of the evidence of Forbes, president of the Forbes Mercantile Company, suecessor to the Brown-Nanzanares Company, of conversations with the officers of the latter company in regard to the ownership of the wire in store at the time of the transfer, and the admission in evidence of the books of the Forbes Company to show how it was held by it, and in whose name as owner; the testimony establishing the fact that the wire was stored in the name of the Acme Fence Company with the Brown-Nanzanares Company, and as such was transferred to and held by its successor, the Forbes Company. It was contended upon the trial and is urged in argument that appellant acquired title to the wire in March by payment of the draft of the St. Louis Company, the payment of demurrage, and the acts of Wigham, vice president and treasurer of the Acme Company. Such contention cannot prevail. The goods were ordered by and consigned to the Acme Company. The draft for the purchase and freight was drawn upon the company. The company was embarrassed. The draft remained three or four months unpaid in the hands of the collecting agents, while the goods remained in store or possession of the railroad company, accumulating de murrage charges. At this point appellant came forward, took up the draft upon the company, paid the demurrage, and the goods were placed in store by Wigham, the vice president and treasurer. As to whether or not the goods were stored in the name of appellant, the evidence is unsatisfactory. Wigham testifies that they were, while the warehouse books show that they were not. No warehouse receipt was taken in the name of appellant, but we deem this inquiry unimportant. It is said in argument "that plaintiff, after some delay, paid said draft upon an agreement that said wire should be taken

and held by plaintiff until he was repaid the amount of the draft." We can find no such agreement in the evidence of record. If such agreement was made, it was of no legal significance to third parties who had no notice of it. The money appears to have been advanced like other moneys to the company, paid to and disbursed by the executive officer of the company in its business. No corporate action was taken, no transfer of the goods made. Appellant could not, by the voluntary advance of money and instructions to Wigham, change the ownership. One man cannot make a bargain of sale of the property of another to himself; and, even had Wigham directed the goods to be stored in the name of appellant, without further evidence of change of ownership, the warehousemen were justified in disregarding it. That he did not, by any act of the corporation, become the owner of the goods until about the 7th of June, is shown by the conveyance, subject to defeasance by payment within 15 days, made on the 23d of May. Prior to that time the transactions appear to have been confined to money advanced the company, until it aggregated over $6,000. After default in payment and the expiration of 15 days, appellant might have become the legal owner by reducing the goods to his possession. Had there been a warehouse receipt, constructive possession could have been effected by its transfer with notice to warehousemen; without a receipt, by the exhibition of his title, and a transfer upon the books of the warehouse. Neither was done. Taking the testimony of appellant as to what was done to change the possession, all we can find is the following: "I came here to Trinidad on my way to Catskill in June, shortly after the fifteen days had expired, as mentioned in that bill of sale, and inquired from a clerk in Brown-Nanzanares' establishment about this wire; and I told him I would soon want the wire shipped to my factory at Catskill, and that I would then pay the charges on it." Section 14 of our statute of frauds is as follows: "Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith, and this presumption shall be conclusive." In regard to the construction and effect of this section, as said by Elbert, C. J., in Cook v. Mann, 6 Colo. 21, "the books are full of decisions." In that case it was said: "The vendee must take the actual possession, and the possession must be open, notorious, and unequivocal, such as to apprise the community, or those who are accustomed to deal with the party, that the goods have changed hands,

and that the title has passed out of the seller and into the purchaser." "When the subject of the sale does not reasonably admit of an actual delivery, it is sufficient if the vendes assume the control and dominion of the property, so as reasonably to indicate to all concerned the change of ownership." That the decision has since been followed, see Wilcox v. Jackson, 7 Colo. 521, 4 Pac. Rep. 966; Bassinger v. Spangler, 9 Colo. 175, 10 Pac. Rep. 809; Sweeney v. Coe, 12 Colo. 485, 21 Pac. Rep. 705; Herr v. Mercantile Co., 13 Colo. 406, 22 Pac. Rep. 770; Atchison v. Graham, 14 Colo. 217, 23 Pac. Rep. 876; Felt v. Cleghorn, 2 Colo. App. 4, 29 Pac. Rep. 813. It is clear, even from the evidence of appellant, that there was no change of possession, elther actual or constructive, nor compliance with the requirements of the statute, before the levying of the attachments, and as to creditors the sale was void. The evidence of Forbes, president of the Forbes Mercantile Company, in whose possession the goods were, also the books of the concern, were admissible in evidence upon the trial. The question being tried was whether an actual change of possession of the goods, as required by statute, had taken place; and though, perhaps, not conclusive, the testimony was competent to show whether or not there had been a change of the possession. The judgment must be affirmed.

BEARD et al. v. BLILEY. (Court of Appeals of Colorado. Sept. 25, 1893.)

SALE-FRAUDULENT REPRESENTATIONS- - SPECULATIVE OPINIONS-EVIDENCE.

1. Statements by the owner of a mining lease to one about to purchase an interest that he was about to go east, and could dispose of the lease at a profit, are speculative matters of opinion, and resting on the future, and are not such fraudulent statements as could invalidate the sale.

2. A statement that he and other lessors had secured an extension of the lease is not of a character to vitiate the sale, where there was an agreement for an extension which was afterwards indorsed on the lease.

3. A false statement that the mine was paying expenses, a fact which the owner alone had knowledge of, would render the sale void, the statement being the inducement for the purchase.

4. In civil proceedings the measure of evidence required to prove fraud must be sufficient to overcome the presumption of honesty.

Appeal from district court, Pitkin county.

Suit by Alexander Bliley against A. A. Beard and others to restrain the foreclosure of a trust deed. Judgment for plaintiff. Defendants appeal. Affirmed.

Wilson & Salmon, for appellants. T. M. S. Rhett, for appellee.

REED, J. Appellant A. A. Beard had an interest in a lease and bond upon a mine, and sold a portion of it to the appellee, for which appellee made his promissory note,

dated August 22, 1889, for $800, payable one year after date, with interest at 1 per cent. per month, and secured it by a trust deed upon his property in the town of Aspen. The mine failed to pay, and, two or three months after the execution of the note, work was suspended, and the property abandoned by the lessees. After the maturity of the note, it was assigned by A. A. Beard to his wife, E. R. Beard. Appellant Donegan was trustee in the deed of trust, and, at the instance of the Beards, proceeded to advertise the property for sale to pay the money secured by it, whereupon appellee brought suit to restrain the sale of the property, alleging in the complaint that appellee fraudulently obtained the note and deed of trust by misrepresentations in regard to the value of the mining interest for which the note was given, and the condition and product of the mine, and, in effect, that there was want of consideration for the note; also that the note was assigned by A. A. Beard to his wife, E. R. Beard, without consideration, and in fact remained the property of A. A. Beard. The allegations of the complaint were traversed in the answer, and upon the issues so made a trial was had. A jury was called, and the two following questions of fact were submitted for its determination: "First. Did defendant A. A. Beard make the plaintiff, Bliley, the representations set forth in the complaint in good faith? Second. Did plaintiff rely on the representations made to him by said Beard, if so made?" tions, though rather inartificially drawn, were sufficient to present the issues submitted (1) whether representations were made; (2) whether they were accepted and acted upon by Bliley, and were the inducement in the transaction, and whether true, and made by Beard in good faith, or were knowingly false and fraudulent. After hearing the evidence of the respective parties, and being properly charged by the court, the jury returned findings answering the first ques tion in the negative, and the second in the affirmative, fully establishing the allegations of fraud in the complaint. The court adopted the findings of the jury, and filed a decree perpetually restraining the defendants from proceeding to collect the note, and that the trust deed made to secure it be canceled. From such judgment and decree an appeal was prosecuted to this court.

The ques

It is contended in argument that the evidence was insufficient to warrant the finding of the jury, and that the court erred in adopting such findings and in decreeing the note void. This is the only ground relied upon for a reversal. The province and duties of a jury are as well defined as that of the judge of the trial court or the judges of this court. The court had right and authority to submit questions of fact to the jury, and, unless some legal principle is violated, and the verdict is the result of incompetent and inadmissible evidence, or it

is evident that it results from the misapplication of the law of evidence, or it is apparent that, through willful and criminal prejudice or bias the finding is at variance with all the evidence in the case, courts have neither power nor inclination to invade the province of that branch of a trial court. It is not enough that, on the printed testimony presented to a court of review, the court concludes, by the reading of the evidence, that the jury should have found differently. The jury and witnesses are brought together, and the jury are to consider, not only the matter testified, but the character and credibility of witnesses. It is their peculiar province, while one man's evidence, when printed and filed in a court of review, may appear equally as truthful and reliable as that of another, there may have been, upon the trial, circumstances or incidents rendering it absolutely unworthy of credit,-facts of which this court could have no information; and when, as in this case, the only important facts rest upon the contradictory and conflicting statements of the two principals, if any finding is made by the jury, one or the other must go to the wall. The finding as to credibility cannot be reviewed in this court. The rule of both the supreme court and this court has been frequently stated and reiterated that, where there is any legal competent evidence to sustain the verdict, it will not be disturbed; and, where the evidence is conflicting and contradictory, the courts will not attempt to decide upon the credibility of witnesses or weight of evidence, but must adopt the conclusions of the jury. The basis of the suit upon which equitable relief was asked was that the note and deed of trust were obtained by fraudulent misrepresentations of the value and condition of the mining property, for the purchase of which the note was given. "Actual or positive fraud consists in deception practiced in order to induce another to part with property, or to surrender some legal right, and which accomplishes the end designed. The deception must relate to facts then existing, or which had previously existed, and which were material to the dealings between the parties in which the deception was employed. In order to render it actionable the following facts should appear: First, that the representations were made as alleged; second, that they were made in order to influence the plaintiff's conduct; third, that, relying upon them, the plaintiff did enter into a contract, or otherwise act as was desired; fourth, that the representations were untrue; fifth, that the plaintiff suffered damage from the ac tion he was induced to take; and, sixth, that this damage followed proximately the deception." Cooley, Torts, §§ 474, 475. "Fraud in equity properly includes all acts, omissions, and concealments by which an undue and unconscientious advantage is taken of another." Story, Eq. Jur. 187; 1 Fonbl.

Eq. bk. 1, c. 2, § 3. In Green v. Nixon, 23 Beav. 530, it was said: "Fraud implies a willful act on the part of one, whereby another is sought to be deprived, by unjustifiable means, of what he is entitled to." In Detroit v. Weber, 20 Mich. 284, it was said: "Fraud consists in a person being induced to act to his prejudice by untruthful statements made by another upon whom he had right to rely, and whose duty it was to state the case truly." See, also, Sellar v. Clelland, 2 Colo. 532; Byard v. Holmes, 34 N. J. Law, 296.

Taking the well-settled rule of law that the fraudulent statements must relate to facts then existing, or which had previously existed, and which were material, etc., we find two of the alleged representations, which were speculative matters of opinion, and resting in the future, withdrawn from consideration, viz.: "That he, Beard, was about to go east soon, and could and would dispose of the lease at large profit to all interested;" "that he was about to put machinery on the premises, and wanted the plaintiff to set it up, and run the same," leaving only the following: "First, that the lease was paying expenses, and that plaintiff would not have a dollar to pay in the way of assessment; second, that he and the other lessors had secured from the owners an extension of the lease of the mine." Taking up the latter first, we find the statement to have been substantially, though perhaps not technically, correct. There had been no written extension, but there was an existing agreement for one which was afterwards indorsed upon it and executed. It is contended that the statement was false. as Beard represented that the lease was to be extended according to its terms, whereas it contained requirements more burdensome than the original. It is only necessary to say that nothing of the kind appears in the written indorsement extending the lease. One witness testified there was to be 50 feet of "dead work" done, but that could not add to or change the written agreement. The admission of the testimony is urged as error. Technically it probably should not have been allowed, but I cannot see how any one was prejudiced by it, and it appearing that, before the expiration of the original lease, plaintiff abandoned and ceased to prosecute work on the mine, because of losses sustained, we are at a loss to understand what pertinency there was in the whole inquiry in regard to the truth or falsity of the statement, when we apply the rule that, in order to be actionable, the statement must have been such that "the plaintiff suffered damage by reason of it." No such injury was shown or attempted. The only remaining alleged false statements were that the lease was paying expenses, and plaintiff would have no assessments to pay. The first was a matter of fact, resting of necessity within the knowledge of the defendants, and of which v.34p.no.3-18

the plaintiff could gain no knowledge by an examination of the property; and that supposed fact, together with the expectation of profits from more extensive and economical work, must be regarded as the inducement to purchase. The latter statement that no assessments would be required, being in the future, must be regarded as speculative, and an expression of opinion, and could not of itself be the basis of an action.

The evidence in regard to the statement that the mine was paying expenses was contradictory, but the jury evidently found the fact for the plaintiff. That it was false, and was not, and never had been, paying expenses, was fully established by uncontradicted testimony, and the fact that plaintiff, for his small interest, was charged some $90 per month for the first two months, shows that it fell far short of paying expenses. The sale for less than cost, and the sale to Silver of another interest at about the same time, at a reduced price, payment to be made in clothing, were circumstances going far to establish the willful falsity of the statements and deliberate fraud of the defendants.

It is urged in argument that plaintiff's case failed for want of proof, and that the court erred in finding for the plaintiff, and the following is cited from Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. Rep. 881: "The answer of the defendant is direct, positive, and unequivocal in its denials of the allegations of the bill, and, as an answer on oath is not waived unless these denials are disproved by evidence of greater weight than the testimony of one witness, or by that of one witness with corroborating circumstances, the complainant will not be entitled to a decree; and this effect of the defendant's answer is not weakened by the fact that the equity of the complainant's bill is the allegation of fraud. Vigel v. Hopp, 104 U. S. 441; Story, Eq. Jur. § 1528; Daniell, Ch. Pr. 844. The burden of proof is on the complainant; and, unless he brings evidence sufficient to overcome the natural presumption of fair dealing and honesty, a court of equity will not be justified in setting aside a contract on the ground of fraudulent representations." It is a wellknown fact that the rules, practice, and requirements of the federal courts are peculiar to those courts, based upon a series of rules adopted from the old English equity practice, and pertain to purely equitable cases. Those rules have no place in practice in the state courts, and cannot prevail here. The modern and controlling doctrine in state courts is stated as follows, (Cooley, Torts, §§ 556, 557:) "Fraud is never presumed, and the party alleging and relying upon it must prove it. This, however, is one of those rules of law which is to be applied with caution and circumspection. So far as it goes, it is based on a principle which has

no more application to frauds than any other subject of judicial inquiry. It amounts but to this: that a contract, honest and lawful on its face, must be treated as such until It is shown to be otherwise by evidence of some kind, either positive or circumstantial." Fraud is therefore as properly made out by marshaling the circumstances surrounding the transaction, and deducing therefrom the fraudulent purpose, when it manifestly appears, as by presenting the more positive and direct testimony of actual purpose to deceive; and, indeed, circumstantial proof in most cases can alone bring the fraud to light, for fraud is peculiarly a wrong of secrecy and circumvention, and is to be traced, not in the open proclamation of the wrongdoer's purpose, but by the indications of covered tracks and studious concealments. And while it is often said that, to justify the imputation of fraud, the facts must be such as are not explicable on any other hypothesis, yet this can mean no more than this: that the court or jury should be cautious in deducing the fraudulent purpose; for whatever satisfies the mind and conscience that fraud has been practiced is sufficient." It is the well-settled doctrine that in all cases the presumption is in favor of honesty, and in civil proceedings fraud requires no higher measure of proof than is required in many other cases. It must be sufficient to overcome the legal presumption of honesty. See Hill v. Reifsnider, 46 Md. 555; Baldwin v. Buckland, 11 Mich. 389; Bowden v. Bowden, 75 Ill. 143; Bank v. Lempriere, L. R. 4 P. C. 572; Smith v. Chadwick, 9 App. Cas. 187; Hildreth v. Sands, 2 Johns. Ch. 35; DeVoe v. Brandt, 53 N. Y. 462; Kaine v. Weigley, 22 Pa. St. 179. In our view of the case, no serious error occurred upon the trial. The facts necessary to constitute a cause of action having been found by a jury, the finding and decree of the court were warranted, and should be affirmed.

In re CANAL CERTIFICATES. (Supreme Court of Colorado. Oct. 16, 1893.) QUESTIONS BY GOVERNOR OPINION OF SUPREME COURT-CONSTITUTIONAL LAW LIMITATION OF STATE INDEBTEDNESS-DIVERTING PUBLIC LANDS FROM OBJECT OF GRANT-CONTROL-ACT VOID IN PART.

1. Act April 17, 1893, providing for payment of materials and labor in the completion of a state canal by certificates of indebtedness to be issued by the state auditor, which may be accepted by the state in payment for carriage of water or for lands, but shall not be a claim against the state, cannot violate the constitutional provision limiting state indebtedness, as it permits of no such indebtedness.

2. The provision that the certificates may be accepted by the state in payment of lands, not being limited to lands which might be used for canal purposes, violates Const. art. 9, § 10, providing that the lands shall be held in trust for the objects for which they were granted to the state.

3. The provision of the act for facilitating the construction of the canal by the sale of alternate sections of the school land lying under the canal violates Const. art. 9, § 3, inhibiting the use of the public school fund for any purpose other than the maintenance of the schools.

4. The provision of the act authorizing a board of control for the canal to act with the state board of land commissioners in the sale of certain state lands is not a regulation within, but violates, Const. art. 9, § 9, lodging in the land commissioners "control and disposition of the public lands under such regulations as may be prescribed by law."

5. The object of the act being to expedite the completion of a canal authorized and sanetioned by previous acts, the provision for issuance of certificates to be accepted in payment of the carriage of water may stand, though that as to land is invalid.

The facts fully appear in the following statement by HAYT, O. J.:

The opinion of the court was rendered in response to interrogatories submitted by Lieutenant Governor Nichols, as acting gov ernor. The questions relate to the constitutionality of an act of the last general assembly entitled "An act creating a board of control for the completion and construction of State Canal No. 1," etc. The inception of the legislation with reference to State Canal No. 1 dates back to an act to be found in the Session Laws of 1889, p. 285. This act provides that for the purpose of reclaiming, by irrigation, state and other lands, and for the purpose of furnishing work for the convicts confined in the state penitentiary, the board of commissioners of the state penitentiary is authorized to locate, acquire, and construct, in the name and for the use of the state of Colorado, ditches, canals, reservoirs, and feeders, for irrigat ing and domestic purposes, and for that purpose may use the labor of persons confined, or that may be confined, as convicts in the state penitentiary at Canon City. Section 2 provides that the state engineer, under the direction of the board, shall locate such ditch or canal, of sufficient capacity to cover 50,000 acres of good, arable land between Canon City and Pueblo. This act made an appropriation from the general revenue of $10,000, for the purpose of locating, and pay. ing for powder, fuse, tools, teams, and materials used in the construction of, said ditches, etc., and it authorized the board to receive subscriptions and advancements from persons owning land along the line of said ditch, for the purpose of aiding in its construction. Some progress seems to have been made under this act of 1889, and in the year 1891 the legislature made a further ap propriation of $50,000 for the purpose of continuing the construction of the canal. This act provided that "the said sum shall be used for the purchase of materials, tools and explosives, and the employment of extra overseers, and guards required in the construction of said canal, and for the more definite and economical location of the line of the same, and for no other purpose."