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to-wit, an indebtedness existing upon the overdue instruments and account specified. No other construction would give the act any effect whatever, other than already conferred by pre-existing statutes. The settled canons of judicial construction require that possible interpretation to be given a statute which will render it effective, and effect the purpose of the legislative intent, if such intent can be reasonably inferred.

The argument against the harshness of the law entailed by such a cause of attachment is without force when directed to the judicial instead of the legislative department. We have no disposition to question the necessity, utility, or propriety of the provision, as a ground of attachment, even were it within our province so to do. If it be said that it entails hardship upon the debtor, it may be replied that, to the legislative mind, in enacting this amendment to the former statute, it may have appeared that the absence of such a law had entailed greater hardship to the creditor. That such a law is not without precedent the statutes of many states, for many years, sufficiently attest.

Stripped of unnecessary verbiage, and disregarding inaptness in phraseology, and oversight in the numbering and position, as not fatal to the evident intent and reasonably inferable meaning, we must hold the provision in question to intend and constitute a distinct, specific, and valid ground of attachment, additional to the 12 others enumerated in the act.

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

(7 Colo. 278)

GREEN, Adm'x, v. TANEY.

March 14, 1884.

An objection to the misjoinder of causes of action, in a complaint, must be taken by demurrer, and must be specifically stated.

Pleading over, after demurrer has been made, waives the right to be heard on the question of the demurrer.

Parties have the right to submit to the jury, by agreement, legal or equitable questions of fact. When they have done so they are estopped from complaining that it was error for the jury to consider those questions.

The weight of evidence does not consist in its volume.

Juries have a large discretion in judging of the credibility of evidence, and a court will not interfere, unless it appears from the record that they acted unreasonably.

Appeal from district court of Arapahoe county.

Brown & Putnam and Markham & Patterson, for appellant.

L. C. Rockwell, for appellee.

HELM, J. Three questions are presented by the record, and argued by counsel, named in inverse order; they are: (1) That the crosscomplaint of Taney, who was defendant below, contained causes of action which could not be joined; (2) that two issues, one legal and the other equitable, were submitted to the jury, and that so trying an equitable question was error; and (3) that the verdict of the jury was contrary to the weight of evidence.

It is questionable if there is anything in appellant's first objection; but we will not pass upon the subject for the reason that she is in no position to be heard thereon. The objection made, if well taken, would constitute a ground of demurrer, to be specifically stated. A demurrer was filed to the cross-complaint, but no such ground was averred therein. Had appellant's intestate, Michael Green, who was plaintiff below, therefore, preserved an exception to the ruling upon the demurrer, which he did not, this objection would not now be available. Besides, had the demurrer properly presented the subject, and had an exception to the ruling been saved, the right to be heard thereon was waived by afterwards pleading over.

Appellant is in no better position as to her second objection above stated. We are not called upon to say whether either of the issues presented to the jury was equitable; nor whether, if the finding upon either lays the foundation for an equitable judgment, the question of fact connected therewith were not such as, under our practice, might by the court be submitted to a jury. The record contains the following declaration: "And therefore, all parties consenting thereto, it · is ordered by the court that a jury come, to whom shall be submitted the following issues," etc., naming them. So it appears that Green expressly consented to the submission of both questions to the jury. By his so doing, appellant is estopped from now challenging the regularity of the proceedings. Parties have the undoubted right to submit by agreement any issue or issues of fact, equitable or legal, to a jury for determination, and, having done so, they will not afterwards be heard to complain.

The third and last objection of appellant rests entirely upon the weight to be given the evidence. Bearing directly or indirectly upon the vital question of fact in the case, Green offered the testimony of 10 witnesses, including himself; Taney but one, and that one was himself. There at first appears to be some ground, therefore, for the surprise of appellant concerning the verdict. The evidence is voluminous and we cannot discuss it in detail; but will proceed to state ag briefly as we may our reasons for sustaining the action of both court and jury. Green was an officer in the employ of the Denver & Ric Grande Railway Company; it was his business to superintend the operating of construction trains, and, to some extent, the track-laying, where the road was in process of construction. Taney, appellee, was what is termed as a boarding boss; he boarded at times many of the men at work under Green. The nine witnesses who support Green

were or had been railroad employes; nearly all of them being wholly or partly under the control of Green. Taney at one time brought to Denver, and deposited in certain banks, to Green's credit, the sum of $5,500. While there is much testimony concerning numerous other financial transactions between the parties, the vital question tried was the original ownership of this money. Green contends that it was his private funds, which he simply intrusted with Taney for the purpose of depositing in said banks, it being inconvenient for him to visit Denver in person. Taney asserts that it was his, and was deposited by him in payment and discharge of indebtedness, real or pretended, to Green. The jury, notwithstanding the large superiority in number of witnesses for the latter, must have found this issue of fact for the former. After examining the testimony, we feel warranted in entertaining and stating the following conclusions in connection therewith:

(1) As between Green and Taney, the jury were justified in believing the latter. While there are a few discrepancies in the testimony of Taney, in the main it is clear, straightforward, and positive. But Green's statements on the stand are conflicting and uncertain. It appears that he testified some months previous to the trial, at a preliminary hearing connected with the injunction, that he only gave Taney from $2,800 to $3,100 to deposit for him; on this trial he is certain the amount was $5,500; he is sure of this, because he had it counted by another party, put into an envelope, and the envelope marked on the outside. Such a discrepancy as this was well calculated to prejudice his entire testimony with a candid jury. Had he taken the precautions now sworn to, it is incredible that he did not in January remember them, and also the exact sum of money handled. Such matters in connection with so large a sum are not often forgotten, and the party beneficially interested seldom fails to avail himself of them on the first and every succeeding opportunity. There could be no reconciling of the testimony of these two witnesses as to this transaction; if Green's statement were disbelieved his whole case must fall.

(2) Many of the matters sworn to by the nine witnesses who appeared for Green were highly improbable. If they were true, Taney acted and talked in a manner utterly unworthy of a sensible or careful business man. In the language of the district judge who tried the case, "in order not to give a verdict for Taney they (the jury) must not only be prepared to say that he committed willful and corrupt perjury, but that he acted in a most indiscreet and foolish manner in talking about the money he had upon his person at San Antonio and other remote points in the state, midst crowds of persons who, he might well suppose, might not only not protect him in his possession of the money, but who might be easily tempted to rob him of it."

(3) There were absurdities and inconsistencies in the testimony of these witnesses which must have attracted the attention of the jury, and

some of the statements were squarely contradicted by extrinsic evidence, which was doubtless accepted as true.

(4) The jury saw these men, noted their language, appearance, and demeanor, upon the witness stand, and, perhaps, also had a personal acquaintance with some of them. They knew their relations, present and past, with Green, and probable interest in aiding him, or inclination to do so. The weight of evidence does not wholly consist in its volume, nor in the number of individuals sworn. That is a most beneficient, evidential rule which gives juries a large discretion in judging of the credibility of witnesses; which makes it peculiarly their province to discriminate between those who testify before them, and imposes upon them the duty of sifting the evidence, accepting the true and rejecting the false. And this court will only interfere where upon the whole record it appears that the jury acted so unreasonably in weighing testimony as to suggest a strong presumption that their minds were swayed by passion or prejudice, or that they were governed by some motive other than that of awarding impartial justice to the contending parties. We cannot say that this case furnishes such a presumption. We think the jury were justified in the findings before us.

The judgment will be affirmed.

(7 Colo. 295)

KELLERMAN v. CRESCENT MILLING & ELEVATOR CO.

Filed March 14, 1884.

Judgment affirmed, following Simmons v. California Powder Co., ante, 420.

Error to county court of Arapahoe county.

France & Rogers, for plaintiff in error.

Bullick, Baxter & Dickson, for defendant in error.

STONE, J. The only question properly raised by the assignments of error in this case is the same as that in the case of Simmons v. California Powder Co., ante, 420, and hence the reasons for the opinion of this court in that case are equally applicable to this.

The constitutional question raised by counsel in argument relates to the Civil Code act of 1877, and not to the act of 1881, which is here involved.

The judgment of the court below is affirmed.

(31 Kan. 522)

SUPREME COURT OF KANSAS.

MILLER V. MINNEY.

Filed March 6, 1884.

A physician, by merely making and filing with the probate judge of his county wherein he practices his profession an affidavit to keep, observe, and perform all the requirements and conditions of the laws of Kansas regulating the sale and use of intoxicating liquors, as prescribed by section 3, c. 128, Sess. Laws 1881, is not liable to the probate judge with whom he files such affidavit for any fees for the certificates of the filing of the affidavit delivered by the probate judge to licensed druggists in this county.

Error from Cherokee county.

Ritter & Skidmore, for plaintiff in error.

Fred. Basom and H. G. Webb, for defendant in error.

HORTON, C. J. The plaintiff, Bruce Miller, was the probate judge of the county of Cherokee from January, 1881, to January, 1883, and exercised the duties of the office. The defendant was a practicing physician within said county on May 27, 1881, and has ever since continued in the practice of his profession. On May 27th, for the purpose of complying with section 3, c. 128, Laws 1881, he made and filed with the plaintiff, as such probate judge, the affidavit required in said section. On May 27th there were 10 druggists in said county having permits to sell intoxicating liquors under the provisions of chapter 128. Subsequent to said May 27th, and prior to January, 1883, 17 other druggists took out permits to sell intoxicating liquors in the county; the plaintiff, as such probate judge, issued to each of said druggists a certificate showing the filing of the affidavit by the defendant, aggregating in all 27 certificates. The plaintiff has never been paid by the defendant for the issuing of the certificates, and therefore brought this action against the defendant to recover his fees, amounting to $13.50. A general demurrer was interposed to the petition in the court below, and sustained by the court. The plaintiff excepted, and complains of this ruling.

Although the legislature has provided that when any physician shall make and file with the probate judge of the county wherein he may practice his profession an affidavit to keep, observe, and perform the requirements of the statute regulating the sale and use of intoxicating liquors, the probate judge with whom the affidavit is filed shall forthwith deliver to each licensed druggist in his county a certificate of the filing thereof, it has not prescribed who shall pay the fees of

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