intend and constitute a distinct, specific and valid ground of attachment, additional to the twelve others enumerated in the act.

There being no error in the ruling and judgment of the court below, the judgment will be affirmed. Judgment affirmed.

[No. 1359.]

THE PEOPLE, ETC., ex rel. THE ATTORNEY GENERAL VS. THE CITY BANK OF LEADVILLE.

Quo warranto in Supreme Court.

Opinion Filed February 15, 1884.

STONE, J.-In his information herein, the relator, the Attorney General of the State, represents that the respondent, The City Bank of Leadville, was incorporated on the ninth day of June, 1882, and organized as a banking corporation under and in pursuance of the provisions relating thereto, contained in the Act of the General Assembly of Colorado, entitled, "An Act to Provide for the Formation of Corporations," approved March 14th, 1877, and thereby became a body corporate by the name aforesaid, with a capital stock of $100,000, fifty per cent. of which was, upon such organization, paid into its treasury in cash, and a certificate to that effect, under the oaths of the president and cashier thereof, filed in the proper offices of the State, and of the County of Lake, and that from that time until the filing of this information, has continued to transact the business of such banking corporation; that by the terms of the statute aforesaid, the respondent corporation was forbidden to continue the transaction of its business beyond the period of one year from and after the date of its creation and organization, unless its entire capital stock was fully paid up in cash; that the residue of said capital stock, to wit, the sum of $50,000, was not so fully paid up at the expiration of one year as aforesaid, to wit, on the ninth day of June, 1883, nor has the same since been so paid up, but that, on the contrary, the sum of $36,000 of said capital stock had been issued prior to the said last mentioned date, and not paid for in cash, and that no payment. thereof has since been made, as by law required. The said relator, therefore, avers that the charter and franchise of the said respondent bank have become forfeit, and that for the space of more than seven months last past said respondent has exercised and still continues to exercise the privileges and franchises of a banking corporation without warrant of law, and therefore has usurped, and still usurps the same.

Wherefore, the relator prays the process of this court, that the respondent answer to the people of the State why its said franchise and charter should not be adjudged forfeit, and the respondent ousted of the same.

The answer of the respondent, filed herein, denies that the said bank has, for and during the period alleged in the information, used or usurped the privileges and franchises of a banking corporation without warrant of law, for that,

THE PEOPLE VS. THE CITY BANK OF LEADVILLE.

125

on the contrary, during said period the acts and doings of said bank have been exercised for the sole purpose of closing up the affairs of said bank, and surrendering its charter.

After setting out a statement of the affairs, and financial condition of the bank, together with some of the causes leading to the suspension of its business as a bank, the answer avers that on the tenth of January last past, for the purpose of lessening the expenses of winding up and settling the affairs of the bank, and being duly authorized thereto, the said bank, by its duly authorized officers, executed and delivered to D. H. Dougan a deed of assignment of all its property and assets in trust, conditioned, that the said Dougan should proceed at once to reduce the said assets and property to money, and apply the same to the payment of the debts of the bank; that the said Dougan duly accepted such assignment and trust, and took possession of the said property and assets, and holds the same for the purpose of said trust, and that "thereupon, then and there, said bank closed its doors, and thence hitherto the same have remained closed."

The answer concludes by praying for such judgment and decree of this court as will protect the interests of said bank and the stockholders thereof, and the interests of such as are prosecuting any suits now pending, or hereafter to be brought against said respondent bank.

The answer, in effect, confesses the substantial charge alleged against it in the information, to wit, that its charter and, franchise have become liable, and subject to be declared forfeit and surrendered to the State. Upon the pleadings, therefore, it only remains for this court to pronounce a judgment in accordance with the prayer of the relator, and properly conditioned with respect to the rights of parties in interest, as prayed by respondent, and as provided by law. The statute concerning the dissolution of corporations, General Laws, §§ 307, 308 and 309, makes ample provisions, in cases of such dissolution, for the mode and manner of settling up the affairs of the dissolved corporation, in view of the rights of parties in interest, and for the protection of such rights.

Neither the relator nor the respondent has asked for any specific judgment or decree, aside from that touching the forfeiture of the charter and franchise of the corporation. The judgment of the court, therefore, is, that the charter and franchise of the said respondent, The City Bank of Leadville, heretofore doing business as a banking corporation, at the city of Leadville, in the County of Lake, and State of Colorado, be adjudged and held forfeit, and that the said corporation be denied and prohibited the further possession, use and exercise

of

any and all the rights, powers and privileges of the charter and franchises aforesaid, and that the said corporation be dissolved; and inasmuch as it appears from the answer of respondent herein, that the property, assets, and affairs of the said corporation are already in the possession and control of a trustee, duly appointed and authorized to settle up the business concerns of the said corporation, and for that no other or different person has been prayed to be, by the court, appointed as trustee or officer for such purpose, the said trustee already appointed, as aforesaid, is at liberty to proceed in the proper discharge of his duties in the premises, in the settlement of the business, and winding up the affairs of said respondent corporation, in accordance with law and the statutes in

such case applicable; and provided further, that the prosecution or defense of actions heretofore brought by. or against the said bank, and pending at the time of the filing of this information, shall in no way be affected by this judgment or decree, but such cases may be prosecuted or defended in the name of the said banking corporation, by the said trustee or assignee appointed and authorized as aforesaid.

[No. 1004.]

ROBERT L. JAMES, Appellant, vs. LUCIEN DUKE, Appellee.

Appeal from the County Court of Arapahoe County.

Opinion Filed March 14, 1884.

Where there is no evidence tending to show an actual loss or damage from plaintiff's inefficiency, defendant can not recoup damages in an action for services rendered.

BECK, C. J.-Duke, who was plaintiff below, sued James for the recovery of fifty dollars, being one month's wages as clerk at the Brunswick Hotel, in this city. The action was originally instituted before a justice of the peace, who gave judgment for the plaintiff, from which the defendant appealed to the County Court, where the cause was tried to the court without a jury, and judgment rendered for the full amount of plaintiff's demand.

The defense relied upon is that the plaintiff was employed as a bookkeeper for the hotel; that he did not keep the books correctly, and violated the contract made with the defendant at time of his employment by leaving the service of defendant without "finishing up his books," whereby defendant was damaged to the amount of fifty dollars.

Upon an inspection of the testimony, the following facts appearing therein are uncontradicted, viz:

That plaintiff was employed at the hotel by defendant at a stipulated compensation of fifty dollars per month, the service to commence October 1st, 1881. That plaintiff served the entire month, quitting of his own volition, on the night of the last day of the month, and that he has received no compensation therefor. No complaints of inefficiency were made by defendant during the employment, but, on the contrary, he stated to one of the witnesses, about the middle of the month, that plaintiff was the best clerk he ever had.

Upon the question as to the capacity in which plaintiff was hired, the testimony is in irreconcilable conflict.

The plaintiff swears that he made no pretentions of being a bookkeeper, and did not hire as such, but as a hotel clerk, although he did keep the books in addition to performing the duties of clerk during his engagement. The defendant, on the other hand, is equally positive, in his testimony, that he hired the plaintiff as a bookkeeper, and in consideration of his alleged experience in keeping books. Both parties produced some evidence in corroboration of their respective statements.

We can not say, upon the testimony before us, that plaintiff was hired as a

bookkeeper for the hotel, and that he was not hired, as he claims, merely as a hotel clerk. There is a wide difference between these avocations, as was stated by the witness Gage. If plaintiff was hired as a hotel clerk only, the defense clearly fails. But there is another consideration which is decisive of the case.

Defendant

has proved no actual damages resulting to him from the plaintiff's inefficiency as a bookkeeper.

The only testimony on this point is that of defendant, and the witness. Cramer. Defendant says he had to employ Cramer, a bookkeeper, to straighten up the books after plaintiff left him. Cramer says he found the books only partially posted, two days' business not being transferred to the books at all. He then produced the books and showed by them what errors had been committed therein by the plaintiff, which were as follows:

A mistake had been made in the account of M. Caulde & Co., but the amount of the error is not stated. On three pages the footings were incorrect; on four pages the balances were incorrect.

There is no testimony that defendant suffered any loss on account of these errors, and the only testimony to found the claim of fifty dollars damages upon, is Cramer's direct testimony, that it was worth fifty dollars to straighten up the books. He did not swear that he received that, or any other sum for this service. His further testimony is, that he is the bookkeeper of the hotel, having entered the employment of the defendant on November first, being the next day after plaintiff left; that he has been there constantly ever since, and that it did not take him long to remedy the defects in the books. There is nothing to show that this work interfered with the full performance of the duties of his employment, or that any extra compensation was paid, or contracted to be paid, on account of this special work. For aught that appears, it was considered as attaching to his legitimate duties under the general engagement.

It is, therefore, unnecessary to discuss any of the legal questions which have been raised. If it be conceded that defendant would be entitled, upon a proper showing, to set-off damages sustained against the plaintiff's demand, he has proved no damages. The judgment will therefore be affirmed.

Judgment affirmed.

[No. 755.]

THEODORE KING, Plaintiff in Error, vs. THE PEOPLE, Defendant in Error. Error to the District Court of Clear Creek County.

Opinion Filed February 29, 1884.

Adultery-Information for.-An information for adultery must charge both of the parties jointly, and neither can be convicted alone.

Overt act.-Testimony of witnesses, showing admissions of defendant, are sufficient proof of the overt act.

Post & Smith, for plaintiffs in error; B. F. Urmy, Attorney General, for the people.

Per Curiam.-The first assignment of error requires no argument from us; it is answered by the indictment itself. The offence is charged jointly. The language

is "that Theodore King and one Martha Estes did, then and there, unlawfully live together, in an open state of fornication." This is substantially the language of the statute. In Delaney vs. The People, 10 Mich. 241, cited and relied upon by counsel, the information charged that Thomas Delaney * "did lewdly and lasciviously associate and co-habit with Mary Stewart." The court held that Mary Stewart could not be convicted of the statutory offence upon this information, and hence, Delaney could not; that the offence was made joint by statute, and each must not only join in the act, or acts, but that both must do so "lewdly and lasciviously," or neither could be convicted, and therefore, the information must charge them jointly. This conclusion concerning the indictment or information is not uncontradicted. See Bishop on Stat. Crimes, § 708, and cases.

But, as already observed, the objection, even if available in a proper case, is without foundation in the one before us.

The assignment based upon, even in the admission of testimony, is not well taken. Counsel admit that "if there had been any evidence of any overt act of plaintiff in error in connection with Martha Estes," the evidence of which they complain, was proper.

The witness Campbell testifies as follows:

"King told me, after the indictment was found, that he did not see, as she was a public woman, why he should be prosecuted for sleeping with her, any more than other men who went to the row and slept with other women."

No testimony was offered contradicting this witness, or questioning the foregoing statement made by him.

We are not advised of counsels' views as to what proof would be sufficient to establish the "overt act," as they term it, but in our judgment, the court below and jury were not far astray in considering this undisputed evidence as ample to dispel any doubt upon the question.

These are the only objections we deem it necessary to notice.
The judgment will be affirmed.

Affirmed.

[No. 414.]

MARGURET TUCKER, EXECUTRIX, Plaintiff in Error, vs. JAMES P. EDWARDS, Defendant in Error.

Error to the County Court of Jefferson County.

Opinion Filed February 29. 1884.

Pleading Statute of Frauds-Inconsistent Pleas.

It is not necessary to aver in a pleading that a contract to convey lands is in writing. This is matter of evidence alone.

The statute of frauds have not changed the rules of pleading.

The parts of each plea must not be repugnant to each other, but pleas inconsistent with each other are permissible.

HELM, J.-Upon a careful examination of the record before us, we conclude that there is but one error of sufficient importance to justify a reversal.