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DENVER LAW JOURNAL.

A weekly journal devoted to the publication of the decisions of courts of last resort and topics of interest to the legal profession in this State.

THE Albany Law Journal of December 15, 1883, suggests that some one should issue a "book of etiquette for convicted prisoners." We refer the suggestion to our brother of the Denver Inter-Ocean, who would be the most

Entered at the Postoffice at Denver, Colo., for trans- competent man we know of in Denver to

mission through the mails as second-class matter.

undertake such a work since 'Gene Field has

Published every week, at No. 874 Lawrence Street. left Colorado. Denver, Colorado.

SUBSCRIPTION:

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$500 A Colored Judge.

No subscription taken for less than six months.

3.00 Massachusetts has a colored judge in the

Single copies furnished to none but a regular sub-municipal court of Charlestown District, scriber to supply a lost number.

Notice of failure to receive any copy must be sent to this office within thirty days after such failure or the copy sent must be paid for at the rate of 25 cents per copy.

Boston.

Superior Court.

Judge Rogers of this court announces his

The publisher reserves the right to stop THE JOUR-intention to not enforce the $5 penalty on NAL in all cases at the expiration of the paid subscription, unless the renewal is accompanied with cash for at least a six months' subscription, at the rate of

$3 for six months.

A MERRY Christmas to each of our patrons.

THE Supreme Court has adjourned to January 4, 1884.

THE Pacific Coast Law Journal announces its own demise on January 1st, 1884.

THE article in our last number on "Domicile" should have been credited to the Ohio Law Journal.

overruling a demurrer, unless satisfied that the demurrer is taken purely for purposes of delay and not in good faith. This is the first time the law has received a rational construction. The law ought to be repealed at the next session of the legislature.

The Criminal Law Magazine.

The December number of this invaluable magazine contains an article on "Void Sentences," by Seymour D. Thompson, which is worth more than the whole year's subscription; a continuation of the article on PreJohn D. Lawson, and eight criminal cases sumptions and the "Burden of Proof," by reported in full. After the DENVER LAW JOURNAL, it is the most valuable publication for which a lawyer in Colorado can subscribe.

Penal Laws Against Suicides

is the title of a little work (pp. 46), by R. S. Guernsey, of the New York bar. Not being disposed to shuffle off the mortal coil as yet, THE Albany Law Journal of December 8, we will lay the work aside until the harass1883, page 442, says the DENVER LAW JOUR-ing toil incident to the publication of a law NAL "is a very readable publication."

JUDGE ELLIOTT has preferred charges against T. A. Green in the Supreme Court, looking to the disbarment of the latter as an attorney.

journal, creates an inclination to suicide, when we will take time to read it carefully as an antidote and panacea against self-murder. Supreme Court.

Synopsis of opinions delivered Friday, December 21, 1883.

De Manville vs. D. E. Parks et al.; opinion by Stone.J.

THE election contest before the County Judge and two Justices of the Peace of Arap-968. ahoe County, involving the elegibility of sheriff elect Graham, is set for December 29, 1883.

THE late Chief Justice of Arizona Territory is now a waiter on the tables of a California restaurant. Such is the calibre of the judges who are frequently sent out west to dispense law by Washington politicians.

Mining Partnership.-A mining partnership may exist as well where the partners have only an interest in profits, as where they own the mine. A partnership may be implied from acts of the alleged partners, as well as from their declarations.

A default simply precludes the defendant from filing an answer, and a plaintiff is not

obliged to take a default as a condition pre-cording to law, or must he remain during

cedent to taking a judgment at a trial.
1035. City of Denver vs. Bayer; opinion by

Justice Helm.

such time in charge of the prisoner, and if so, then is he entitled to compensation for such attendance upon the court during the trial or examination without any special order being made by the court that he shall so attend?

Rights of abutting land owners to street. The right of an owner of land, abutting on a street, in the street is property. He may be The command of the warrant itself, would presumed to have anticipated and consented seem to indicate, that he should so attend in to changes in the grade of the street, made charge of the prisoner. Certainly the prisfor the benefit of the public, and to have pre-oner must be regarded as in the custody of cluded himself from claiming damages aris- the constable until the latter makes his reing from changes of grade so made. This rule does not apply to the location of railways in the public streets. The abutting land owner is entitled to recover such damages as he suffers arising from the location of a steam railway on a street abutting his property, which are special to himself. The Colorado constitution in this respect construed.

The City's Liability. The city is not liable in damages for permitting a railroad to occupy a public street.

The case is reversed and remanded to the District Court, with directions to dismiss the

action.

United States Supreme Court.

MONDAY, DEC. 17, 1883.

THURSDAY, DEC. 20.

177. Harrison and Elizabeth Goodwin vs. The Colorado Mortgage and Investment Co. of London (limited); submitted by E. T. Wells for plaintiff; no counsel appearing for defendant.

Supreme Court of Wisconsin.

turn. But the statute expressly provides, that from the time of the return of the warrant, until the time of the trial, the accused may give bail for his appearance at the next time fixed for the trial, or in the event of failure so to do, may be committed to jail for safe keeping by order of the justice, or left in custody of the arresting officer. Sec. 4745 R. S. Here are two ways provided whereby the prisoner may, prior to the trial, be released by the justice from the custody of the constable-one by admitting him to bail, and the other by committing him to jail. In case the prisoner is not released in either of the ways mentioned then under that section he is to be "left in custody of the arresting

1006. J. L. Sullivan et al. vs. The Iron-officer." But on the return of the warrant Silver Mining Company; in error to the Cir- by the constable with the accused, the justice cuit Court of the United States for the Dis- is required to proceed to hear, try and determine the cause within one day, unless contrict of Colorado; judgment reversed with tinued for cause. Sec. 4744 R. S. And then costs, and cause remanded with leave to if the plea of not guilty be entered, and the amend pleadings, and for further proceedings not inconsistent with the opinion of prisoner is not released in the manner provided, the trial must proceed with or without this court. Opinion by Gray, J. a jury. Sec. 4748 R. S. If a jury is demanded, then such jury is obtained and the trial is conducted by aid of the sheriff or constable. Secs. 4750, 4751, 4752, 4753, 4754, 4757, R. S. The warrant is directed to the sheriff or constable, and the judgment of every such court is to be executed by the sheriff or constable. Secs. 4762, 4774, R. S. These statutes clearly indicate that the constable making the arrest must retain the custody of the prisoner until he is released therefrom in the manner provided in the statute. The same seems to be true of prisoners arrested and brought before the committing magistrate for examination. Secs. 4775, 4776, R. S. In fact every constable is made by statute, ministerial officer of justices of the peace, and must necessarily, in the execution of such criminal warrant, attend with the prisoner before such magistrate in order to perform such ministerial duties. The successful administration of the criminal law absolutely requires such attendance.

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CUTTS vs. ROCK COUNTY. Opinion Filed November 20, 1883. Duty of Constable in Criminal Cases.-When a constable arrests a prisoner and brings him before a justice of the peace, it is his duty to remain with the prisoner during the trial or examination. CASSADAY, J.—* Where a constable receives from a justice of the peace a criminal warrant, commanding him forthwith to apprehend the person named, and to bring him before such justice to be dealt with according to law (4774 R. S.; Colo. Stat. 5841) has he any right to withdraw from the justice and abandon the prisoner, during the time he is being so dealt with ac

Supreme Court of Wisconsin.

DONNELLY vs. BECK.

Police power..

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Opinion Filed November 2, 1883.

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maxim salus populi suprema lex." "It is
not a taking of private property for public
use, but a salutary restraint on a noxious use
by the owner, contrary to the maxim sic
utere, etc."

Supreme Court of Texas.

THE T. & P. R'Y Co. vs. D'MILLEY.
Appeal from Harrison County.

Opinion Filed October 19, 1883.

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Where the alleged cause of the accident was a bro-
ken rail, and that was clearly established by compe-
tent, legal evidence, held it was not error in the court,
after the fact was proven, to admit evidence of the
general bad condition of the road in the vicinity
where the accident occurred, and the length of time
this general bad condition had existed.
STAYTON,
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J.—*
The general
dangerous condition of a railway is a fact to
which a jury may look, for the purpose, not
only of ascertaining the degree of care used
by the owner, but also for the purpose of
showing the indifference of the owner to the
safety of those whom it undertakes to trans-
port.

ORTON, J.- -* * * But there is a sovereign power in the State, to be exercised by the legislature, which is outside and in a sense above the constitution, called the police power of the State. Chief Justice Shaw, in Com. vs. Alger, 7 Cush. 53, gives as good a definition of this high and comprehensive power, as any which can be found: "All property in this commonwealth is held subject to those general regulations which are necessary to the common good and general welfare." Chief Justice Redfield, in Thorpe vs. R. & B. R'y Co. 27 Vt. 140, says: "The police power of the State extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State." By it "persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health and pros- Where a party is sued for damages flowing perity of the State." According to the max-from a specified negligent act, it is ordinarily im "sic utere tuo vt alienum non lacdas." *irrelevant to prove other similar but discon*nected acts. Lut, where a party is charged with the negligent use of a dangerous agency, and where the case against him is that he did not use care proportionate to the danger, then the question becomes material whether he knew, or ought to have known, the extent of the danger. On such an issue as this it is *relevant for the party aggrieved to put in evIt is said in the note to 2573, 2 Dillon on idence disconnected acts of which it was the Munic. Corp.: "In order to justify an assess- duty of the defendant to have been cognizant, ment, the improvement must be for a public and which, if he were cognizant of them, purpose, since the public have no right to would have advised him of the extent of the tax a citizen to make improvements for his danger, and would have made it his duty to own benefit solely." Bradley vs. N. Y. & N. take precautions which would, if faithfully R'y Co. 21 Conn. 305. In 141 of the same applied, have prevented the injury sued for. work the learned author says in respect to the Thus, in an action for injuries sustained from police powers, and laws made thereunder: a car running off the track, evidence has been "And it is well settled that laws and regula- received to prove seven or eight runnings-off tions of this character, though they may dis- of the track on the same road, by the same turb the enjoyment of individual rights, are train of cars, in the previous month. Wharnot unconstitutional though no provision is ton's Law of Evidence, 41; Mobile Railroad made for compensation for such disturbances. vs. Ashcroft, 48 Ala. 15; Indianapolis R'y Co. They do not appropriate private property for vs. Nast, 93 U. S. 391; Faucett vs. Nichols, 64 public use, but simply regulate its use and en- N. Y. 384; Grand Trunk R'y Co. vs. Richardjoyment by the owner." "He owns it subject son et al., 91 U. S..454; Bankley vs. Meonard, to this restriction, namely, that it must be so 4 Denio, 501; Keenan vs. Hayden, 39 Wis. used as to not injure others and that the sov-560; Stephens' Dig. of Law of Evidence, part ereign authority may by police regulations 1, Chap. 3, Arts. 11, 12 and notes.

The various objects of legislation falling within the police power of the State are numerous and need not be mentioned, but by all authority the public health and the prevention or abatement of nuisances are indisputably within it." Cooley on Taxation, 402 ct scq. and notes.

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so direct the use of it that it shall not prove Knowledge, however, must usually be pernicious to his neighbors or the citizens proved indirectly from the facts by which generally. These regulations rest upon the notice to the party can be inferred, and hence