this appeal. From these sources it appears that the agency of the drawer of the time-checks was not admitted. It devolved upon plaintiff, in making his prima facie case, to offer some proof upon this point; he introduced none whatever; he did not even show that the checks were ever presented to the defendant for payment; he simply offered them in evidence, together with the orders above mentioned, and rested. He might perhaps be excused under section 1949, Gen. St., from establishing the genuineness of the signature of the maker, but some slight evidence that Blackburn was an agent of the company, authorized to execute such instruments, was indispensable. Ang. & A. Corp. § 283; First Nat. Bank v. Hogan, 47 Mo. 473; Northern Cent. Ry. Co. v. Bastian, 15 Md. 501; Partridge v. Badger, 25 Barb. 171; Chapman v. Chicago & N. W. Ry. Co. 26 Wis. 303; Abb. Tr. Ev. 40, and notes. Had the action been commenced in a court of record, the complaint would have averred the liability of defendant in appropriate terms. It might perhaps have been sufficient, even though there was no special allegation of agency; but the absence of such averment would be overlooked, simply because corporations can only act by agents, and in law the act of the agent is that of the principal. The liability of the principal could hardly be established without some proof of the agency. Whether the proceedings be with or without written pleadings, the facts essential to constitute a cause of action must be given in evidence: provided, of course, that such evidence be not waived by the conduct of the defendant, or by averment or admission in his answer. As already intimated, very slight proof in cases like this, on the part of plaintiff, would be sufficient to raise a presumption of agency, and cast upon defendant the burden of showing that no such relation existed between it and the party professing to act in its behalf. This rule is based upon the fact that knowledge on the subject is fully possessed by defendant, and perhaps difficult of attainment by plaintiff. The motion for a nonsuit should have been allowed.

The judgment will be reversed, and the cause remanded for a new trial.

(7 Colo. 296)

SNYDER v. VOORHIES, Ex'x, etc.

Filed April 1, 1884.

In an action to have the record of a deed canceled, where it is alleged that the deed was never delivered, and that the record was entered without authority, the heirs and devisees of the deceased grantee are necessary parties defendant.

Appeal from district court of Pueblo county.

E. J. Bennett and G. Q. Richmond, for appellant.

J. W. Horner and Patton & Urmy, for appellee.

STONE, J. The complaint of the appellant, as plaintiff in the court below, alleged that her husband, being indebted to James L. Voorhies, the husband of appellee, the defendant below, gave his promissory note therefor, payable to Flora L. Voorhies, the said defendant; that afterwards, for the purpose of discharging said indebtedness, the plaintiffs executed a deed, conveying certain land lying in the county of Pueblo to the said James L. Voorhies, and deposited the said deed as an escrow with one M. G. Bradford, to be delivered to the said grantee upon condition that the note aforesaid should be surrendered and delivered to said depositary; that subsequently the said Bradford offered to deliver the deed to the said grantee and his wife, the defendant, upon the condition aforesaid, but that both said grantee and defendant refused to comply with said condition, and deliver up the note; that afterwards, in the absence of said Bradford from his house, the said grantee went to said house, and, upon pretense of examining said deed, obtained the same from the wife of Bradford, and, without the knowledge or consent of said Bradford or of the plaintiff, carried the deed away and had the same recorded, fraudulently and in violation of the condition of its delivery, etc.; that the said note has never been delivered up nor canceled, the said land never been paid for, nor has there ever been any consideration for said deed; that neither the said James L. Voorhies nor his said wife, the defendant, has ever owned nor been in possession of said land, but that the plaintiff is now and has been in continuous possession of said land, and the ownership in fee thereof; that, subsequent to the recording of the deed as aforesaid, the said James L. Voorhies died, leaving a will by which the said Flora, the defendant, was appointed the sole executrix thereof; that said will was probated in the county of Onandaga, in the state of New York, and said defendant thereupon qualified as such executrix, and entered upon the duties thereof; that the said deed so fraudulently obtained and recorded, as aforesaid, is a cloud upon the title of the said lands of the plaintiff, and the complaint therefore prays that the same be adjudged fraudulent and void; that it be set aside, canceled, and expunged from the records, and for general relief. This complaint was demurred to by the defendant; the demurrer was sustained, and the plaintiff appeals to this court, assigning for error the ruling of the court below in sustaining the demurrer and rendering judgment thereon.

The principal question raised by the demurrer, and the only one we will pass upon, under the assignments of error, is whether the proper and necessary parties are made defendants in the action. On the part of the appellant it is insisted that, since there was no valid delivery of the deed, no interest in the premises passed by the conveyance to the decedent as grantee in his life-time, and hence neither his heirs nor devisees have any interest to be affected by the decree prayed for in this action. While it is true that a deed delivered wrongfully and fraudulently, or without authority and contrary to the

conditions of its delivery as averred in this complaint, like an undelivered deed, passes no estate or interest thereby, yet the averments of the complaint in this case are facts to be established upon trial, and while these averments are by the demurrer admitted to be true, as against the sole defendant sued as executrix, yet they are not admitted as against any one not a party to the action. Taking the complaint as true, the deed in question, having been properly executed by a competent grantor, and upon a sufficient consideration to a competent grantee, would, upon a good delivery, operate to pass the estate therein described, and the heirs or devisees of the decedent grantee dying seized of the premises, would be the real parties in interest to be affected by a judgment or decree in this action. Their possible interest cannot be admitted away by the executrix; such heirs or devisees, in whom the estate would be vested in case the conveyance were valid, are entitled to their day in court, and to have an opportunity to coutest the averments of the complaint in the action. In real actions or one like this, in which the title to realty is affected, it is as important to the parties plaintiff as to parties defendant to have the proper and necessary parties before the court, in order that they may be bound by the judgment. We think there was no error in the ruling and judgment of the court in sustaining the demurrer upon the ground of a defect of proper parties defendant, and the judgment will be accordingly affirmed.

(7 Colo. 303)

SALISBURY v. ELLISON.

Filed April 1, 1884.

Rehearing granted for the purpose of deciding whether all of the requisite parties had been joined as defendants

Error to district court of Boulder county. Petition for rehearing. Harmon & Ellis, for plaintiff in error.

Platt Rogers and R. H. Whiteley, for defendant in error.

HELM, J. We discover no reason for changing our views upon the leading questions considered in the opinion deciding the case. The following propositions were announced, and are still adhered to, viz.: (1) that an assignment by the surviving partner of an insolvent firm for the benefit of preferred creditors is invalid in equity, where the question is properly drawn in issue, and that this was true before the adoption of our recent statute on this subject; (2) that in actions at

law appropriate equitable defenses may be interposed; (3) that if the defense be not averred in the answer, yet be fully established by the plaintiff in attempting to make out his case in the first instance, he will be deemed to have waived the absence of averment, and cannot recover if objection be taken by defendant; and (4) that this waiver takes place, under our practice, whether the specific defense proven by the plaintiff be legal or equitable. But these propositions must of course be understood with the qualification that the legal action is between the proper parties; and that the defense, legal or equitable, is one of which the defendant is entiled to the benefit.

In their argument supporting this petition for a rehearing, counsel urge with considerable force that the defendant in this case has no interest in the equitable defense above stated, and was not entitled to plead the same; also that the question of fraud in the assignment could only become important and be adjudicated in an action to which the surviving partner and the unpreferred creditors as well as the assignee were parties. We have decided to grant the prayer of the petition, for the purpose of more fully considering these questions; the arguments upon the rehearing will be confined thereto. Rehearing allowed

BECK, C. J. I concur that a rehearing should be granted.

(7 Colo. 298)

TUCKER, Sheriff, etc., v. PARKS, Assignee.

Filed April 1, 1884.

Supreme court-authority to reverse, and direct judgment to be entered in the lower court.

Appeal from district court of Lake county. On rehearing. See S. C. 1 PAC. REP. 427.

R. D. Thompson, for appellant.

Markham, Patterson & Thomas, for appellee.

PER CURIAM. Upon a full consideration of this case and examination of the numerous authorities cited in the briefs filed on the rehearing herein, we agree in concluding that upon authority this court has ample power to reverse and direct a judgment in the present case, and that the ends of justice will be subserved thereby. It is therefore ordered that the court below be directed to enter a judgment in accordance with the opinion heretofore rendered in this court therein

for the sum of $7,946.20, the same being the amount of the value of the goods in controversy, as admitted by the pleadings, together with interest on said amount for the time indicated in the aforesaid opinion of this court, if the plaintiff shall elect to accept such directed judgment within 10 days from the filing of the remittitur in the court below; otherwise the cause will stand for new trial as heretofore remanded. It is further ordered that the appellee, Parks, be adjudged to pay the costs of the proceedings in this court.

Judgment directed.