effect the same, and thereby render nugatory the provision of the Constitution as to a majority vote, and in effect prohibit the removal of a County Seat.

An argument in favor of such a construction of the Constitution as will nullify a statute is not aided by a suggestion that unless the construction contended for be adopted by the courts, the legislature will have the power to pass laws prejudicial to the rights of the people.

It is not a legal inference that if unrestrained the chosen representatives of the people may commit either a foolish or a corrupt act. Legal presumptions are in favor of the integrity and wisdom of legislators, as well as the validity of their enactments. Said Mr. Justice Washington, "It is but a decent respect due the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt." Ogden vs. Saunders, 12 Wheaton * 270.

The remedy for bad or oppressive legislation, not obnoxious to constitutional restrictions, is said to be an appeal to the law-making power. If that should fail, the people, in their sovereign capacity, are supreme, and can correct the wrong. The courts can enforce only such limitations as the Constitution imposes.

.

A certified copy of the proceedings of the Constitutional Convention, relating to § 2, Art. XVI, has been furnished us by counsel, accompanied by the proposition that "the record shows clearly that the Constitutional Convention. declared its purpose of leaving the removal of County Seats to a vote of the majority of the qualified electors, and not to a two-thirds vote.

In our judgment these proceedings only show that a diversity of opinion existed in the convention as to how far the legislative power should be restricted on the subject of the vote that should remove a County Seat. There is nothing in the proceedings of the convention to point out the purpose of the provision made by it concerning this vote, beyond that conveyed by the meaning of the words employed therein.

The plain, common sense import of the language used, indicates an intention to restrict or limit the power of the legislature in respect to the general law which it was, required to pass on the subject. That a portion of the members were in favor of placing the limitation at a majority, and a portion at twothirds, does not indicate a purpose of withdrawing the subject from legislative action and discretion, save only to the extent of the limitation imposed.

There are instances where the proceedings of the convention which framed a constitution are said to furnish valuable aid in its interpretation. We do not regard this as one of them. The inquiry here is purely one of interpretation of language. The Constitution derives its force, says Judge Cooley, from the people who ratified it, and their understanding of it must control. This is to be arrived at by construing the language used in the instrument according to the sense most obvious to the common understanding.

We hold, as to the objections raised against the act of February 11, 1881, that the act is valid. And it appearing from the record, that two-thirds of the electors of Custer county voting on the proposition, did not vote to remove the County Seat of said county from Rosita to Silver Cliff, the County Seat was not removed. The judgment of the District Court is affirmed.

[No. 941.]

COLUMBUS WEESE, et al., Appellants, vs. M. CLAYTON BARKER, et al., Appellees. Appeal from the District Court of Park County.

George, Maxwell & Phelps for appellants.

Wade, Dunn & Danforth for appellees.

Opinion Filed February 8, 1884.

Amended Complaint-Parties.-When persons are made parties to an amended complaint, the presumption obtains that they were made such parties with their consent. If they did not consent they would have been made defendants, under ?? 11-13 of the Code.

.Ejectment-Recovery by Co-tenant. In ejectment one co-tenant may recover possession of the entire tract as against all persons except his co-tenants.

What a Default Admits.—A default admits every issuable fact stated in the plaintiff's complaint.

Mistake of Recorder.-A plaintiff is not responsible for the mistakes made by the record. er in copying the instrument filed for record.

BECK, C. J.-The principal errors assigned are that the district court erred in allowing the amended complaint to be filed, and in making Benbow and Hussey parties to the action.

The action was originally instituted by Barker and Wade as plaintiffs, alleging that they were entitled to one undivided one-half, or each to one undivided one-fourth of the Tanner Boy lode, and that the defendants had wrongfully entered upon said claim and taken possession thereof to the exclusion of the plaintiffs and their grantors, etc.

Afterwards leave was granted the plaintiffs, after service of notice upon defendants, to file an amended complaint in said cause, making the said Benbow and Hussey parties plaintiffs.

The amended complaint alleges, among other things, "that plaintiffs are and were at the institution of this suit, owners and entitled to the possession of said claim in the following proportions, to-wit: each to an undivided onefourth, and that they claim the right to occupy and possess said premises by right of preemption and by virtue of full compliance with the local laws and rules of miners in said mining district, the laws of the United States and of said state of Colorado, and by actual prior possession as a lode mining claim.

Plaintiffs in error assume that Benbow and Hussey were made parties to the amended complaint without their consent. We have searched the record in vain for evidence to sustain this assumption. The averments of the amended complaint are to the effect that Benbow and Hussey are tenants in common with the original plaintiffs Barker and Wade, and that each of said four plaintiffs is the owner of an undivided one-fourth of the property sued for.

All were proper parties to the complaint, and the presumption obtains that all consented to become parties plaintiffs, as otherwise those not consenting would have been joined as defendants. Civil Code, §§ 11-13.

The amended complaint having been filed by leave of the court, after notice to the defendants, and the defendants, having suffered a default to be entered against them, are in no position to complain of the judgment.

On behalf of the appellants it is insisted that the amendment changed the

subject matter of the action. This view cannot be sustained. True, the original complaint only claimed for the plaintiffs Barker and Wade, an undivided half of the Tanner Boy lode; but as against the appellants they were entitled to recover the entire lode, and the original complaint might have been amended to claim the whole. The defendants did not claim to be co-tenants of Barker and Wade, but were claiming the entire lode by a wholly different and adverse title.

The law is that in ejectment one tenant in common may recover possession of the entire tract as against all persons but his co-tenants. Mahoney vs. Winkle, 21 Calif. 583; Hart vs. Robertson, Ibid. 348.

The amended complaint alleges that the plaintiffs are the owners and entitled to the possession of the lode. It further alleges that each plaintiff is the owner of an undivided one-fourth of the lode. The stipulation of facts filed in the cause shows that all the plaintiffs derive title from the same source, that is, from the same act of location. It also shows that the defendants claim title by virtue of a location of the same lode made subsequent to the plaintiffs' location.

Defendants were in no manner prejudiced by the filing of the amended complaint. The same title alleged in the original complaint was stated and relied upon for a recovery in the amended complaint. Defendants were not interested in this title, but claimed adversely to it. It was therefore wholly immaterial to them whether the action was brought in the names of the several co-owners against them, or in the names of a portion thereof.

But the point is made that plaintiffs' location was invalid, because the name of the lode was, by mistake, recorded "Farmer Boy," instead of "Tanner Boy," as it was written in the location certificate.

This was a mistake of the recorder, and cannot avail the defendants in this case. The certificate itself appears to have complied with the statute. General Laws, §§ 1813-1814. Plaintiffs were not responsible for the mistake of the recorder. Myers Myers vs. Spooner, 55 Calif. 258. Besides the defendants were not misled by the alleged error. They have permitted judgment to go against them by default. Their default admits every issuable fact stated in the plaintiffs' complaint. Harlan vs. Smith et al. 6 Calif. 173; Hutchings vs. Ebeler, 46 Calif.

557.

Among other issuable facts stated in the complaint is the following: “That heretofore, to-wit: on or about the eleventh day of February, 1880, while plaintiffs and their grantors were in peaceable, open, notorious and exclusive possession of said claim, working the same as aforesaid, defendants wrongfully and unlawfully entered upon said claim and took possession thereof, ousting plaintiffs and their grantors, and have ever since wrongfully held possession of said premises to the exclusion of plaintiffs and their grantors."

The stipulation filed in the cause concedes that the lode was properly staked by the plaintiffs; that the mistake in the record was made by the recorder, and that the defendants staked and relocated said lode as abandoned property after the location by the plaintiffs.

Upon the merits, then, the appellants have no standing in this case. The record shows actual possession in the appellees, which is prima facie evidence of title, and as we said in Labanon M. Co. vs. Con. Rep. Co., 6 Colo. 380, "entering

upon premises in the actual possession of another, for the purpose of performing the acts necessary to constitute location and possession, amounts only to a trespass, and cannot form the basis for the acquisition of title.

Whether the location of Barker and his co-tenants be valid or not their possession is sufficient to defeat a recovery by the appellants.

We are further of opinion that the description of the lode set out in the amended complaint, as it appears in the record proper (transcript folios 18 to 23) is sufficient to identify the claim sued for. The boundaries of the claim are given, and in addition the following: "The discovery tunnel is about one-half mile below the old town of Timberline on the line of Buckskin creek, on the south side of said creek, and two hundred feet northwest from the discovery tunnel on the Iona lode:"

The judgment is affirmed.

[No. 986.]

WALTER CARY, JR., Appellant, vs. Wm. F. MCINTYRE, Appellee.

Appeal from the District Court of Gunnison.

Mills Bros. for appellants.

Lewis Boisot for appellees.

Opinion Filed February 8, 1884.

Accord-Conditions.-A condition of an accord agreement may be waived by the parties thereto in the same manner as a condition of any other agreement.

Mutuality-Signature by Both Parties. Where there is ample consideration for an agreement on both sides, and the party who does not sign it acts under it without objection, the want of his signature to the writing does not make the contract unilateral.

HELM, J.—On the 30th day of October, 1880, Cary, who was defendant below, and McIntyre, who was plaintiff below, entered into a written contract by the terms of which McIntyre was to furnish and deliver to Cary at Gunnison 200,000 feet of good and merchantable lumber, of such kinds as Cary wanted, and 200,000 shingles. He was also given the privilege of delivering 300,000 feet of lumber in addition upon the same terms, if he should elect so to do and was to "exercise all reasonable diligence in arriving at a speedy execution of the terms of the contract." He also engaged not to manufacture any boards, lumber or shingles for any other person until the contract was filled. In consideration of the foregoing, Cary promised to receive and pay for each and every load upon delivery thereof according to the terms of the contract, $28 per thousand feet for the lumber, and $4.90 per thousand for the shingles. (In the latter part of April, 1881, Cary told McIntyre to hurry up and get out the lumber under the agreement.)

On the 18th of May following-nearly seven months after this contract was

made, McIntyre had neither delivered nor offered to deliver, any of the lumber or shingles mentioned therein; and Cary sent him the following letter:

"W. F. MCINTYRE, Esq.:

"Dear Sir:

"GUNNISON, COLO., May 18, 1881.

"You having failed to comply with the terms and conditions of the contract made and entered into between yourself and myself on the 13th day of October last, I hereby notify you that I shall from this day treat said contract as broken, and the terms and conditions therein sought to be made binding upon me will be considered as of no effect. If you wish to enter into a new contract on such terms and conditions as we may hereafter agree upon, I would be pleased to talk with you.

"Yours,

"WALTER CARY, JR."

A day or two after receiving this letter McIntyre encountered one Uppercu, who was acting as the agent of Cary, or rather of the firm of Buck & Cary, for whom the latter purchased the lumber. The conversation which followed resulted in the indorsement upon the back of a copy of the original contract of the following, above the signatures of McIntyre and Uppercu, as appears therefrom:

"GUNNISON, Gunnison County, Colorado.

"In and for the consideration that Walter Cary, Jr., pay to me twentysix dollars per thousand feet for one hundred and fifty thousand feet of lumber, the same to be delivered by me to him at the said town of Gunnison within the next sixty days, payment of said lumber so delivered to be on demand, I hereby revoke and cancel the within agreement and hold it null and void. Reserving the right to sell lumber to other parties.

"May 25th, 1881.

W. F. MCINTYRE."

"I hereby guarantee the payment of the above one hundred and fifty thousand feet of lumber at $26 per thousand in manner aforesaid.

"E. A. BUCK,

By J. W. UPPERCU, Att'y in Fact.

"Gunnison, Colorado, May 25th, 1881. Uppercu carried this to Cary, who retained it and immediately expressed his satisfaction therewith, which fact Uppercu reported to McIntyre.

Thereupon McIntyre began delivering lumber, and up to the 25th of July Cary, by his agent Uppercu, had received and paid for 108,000 feet; both acting under the stipulation last above set forth. After the 25th of July he refused to receive or pay for any more lumber.

McIntyre brought suit upon the original contract, and recovered a judgment for $492. From this judgment Cary prosecutes an appeal.

We shall not consider who first violated the October contract; neither will we determine whether the May writing was a substitute therefor; as appellant claims on an accord thereof as contended by appellee.

We may admit with counsel for appellee that Cary's letter gave McIntyre a right of action, and also that the May agreement was simply an accord; we may