transaction of certain specified business, and to provide that, for the uniform speeding of causes throughout the district, such business might be passed upon by the judge, wherever in the district he might happen to be.

It is further objected that, as more than five years have elapsed since the rendition of this judgment, it is now dormant, and no proceedings looking to its satisfaction will lie until it has been revived. We think this would be true were chapters 29 and 30 of the Code to be held operative against these judgment creditors. But that cannot be. Their judgment, at the date of the adoption of the Code, had been in being more than five years, and within those five years they had issued execution upon it. Under the then existing law, they thus had still a live judgment, and a right to issue execution and institute supplementary proceedings on it at any time. That right was a valuable and vested right. Power to execute it might, by a new statute, have been limited to expire at the end of a reasonable time, but it could not have been summarily taken away without limitation.

Again, it is objected that the affidavit was erroneously allowed to be amended. It described the judgment, which was, in fact, against two defendants as if it were against one. An amendment was permitted making the description conform to the fact. This might not have been proper, had the supplementary proceeding been independent of the original action. But it was a proceeding in or in continuation of that action, drawing readily thence data whereby it could be amended, and certainly amendable within the very liberal rules prescribed by sections 109 and 113 of our Code.

A fourth objection is that plaintiff in error was, against his protest, denied a trial by jury. He contends that a jury trial was his constitutional right under the fifth and seventh amendments to the constitution of the United States. We are clear that these constitutional amendments are part of the organic law of the territory, but they do not avail to give a trial by jury in an equity cause. This supplemental proceeding is of equitable jurisdiction, intended to serve the end of a creditor's bill, and is to be heard and determined by the judge as a chancellor, with or without the assistance of a jury, as he may desire. Such seems to be the generally adopted theory respecting proceedings of this sort, (Ex parte Grace, 12 Iowa, 208,) though in point is not followed in courts outside of Iowa. Its reasoning does not convince us that we ought to follow it. If the reasoning it pursues is to lead to the conclusion it reaches, then we do not see but that a trial by jury, on an issue of fraud, is in every chancery as well as every law case, a constitutional right.

The last objection we shall notice is that another person should have been made a party to the proceeding. On this we have had considerable difficulty. Looking at the testimony before us, we cannot help thinking that John Elwood, who is asserted by some witnesses to have an interest in the property, should in equity and good con

science have been called in as a party. At the same time chapter 35 does not seem to contemplate such a thing, and makes no provision for it. After much consideration, we have come to the opinion that the case falls within section 20 of the Code, requiring that "when a complete determination of the controversy cannot be had without the presence of other parties, the court shall cause them to be brought in." By an order to show cause, or by some other reasonable notice, any party whose rights are involved can readily be brought into a proceeding of this character. A new party should be brought in whenever, in the progress of the proceeding and before the final order, there appears reason to believe that he owns an interest in the money or other property sought to be subjected to the judgment. In so holding, we simply give full effect to the idea that this is a matter of equitable cognizance, to be heard and adjudicated as fully, and with as careful regard to the rights of all interested, as though it were an original suit. This cause, though properly in equity, has been brought up here by writ of error. No exception has been taken, in brief or argument, on this score. We shall, therefore, give judgment as if it were regularly here as a case at law.

Let the final order of the district court be reversed, and the cause remanded for further proceedings, with direction to bring in such other party or parties as may be right and equitable.

HOYT, J., concurred.

(2 Wash. T. 198)

HAYS v. PARKER.

Filed August 6, 1883.

Where, in an action of ejectment, plaintiff claims under a certificate of purchase issued by a receiver of public moneys of the United States, and defendant sets up the existence of certain facts tending to show that said certificate was illegally issued, and on that account canceled by the commissioner of the general landoffice, it is error for the court, on motion of plaintiff, to strike out all that was alleged in the answer as leading to such action by the commissioner, and to exclude the letter of said commissioner offered in evidence thereof.

When it appears in such an action that at the time when the suit was commenced the claims of the respective parties to the land in question were being waged in the department of the interior, the court should dismiss the action, at the cost of the plaintiff.

Error to the district court.

Allen & Thompson, for plaintiff in error.

A. E. Isham, for defendant in error.

HOYT, J. This was an action of ejectment brought by the defendant in error, who alleged in his complaint that he was entitled to the land by virtue of a certificate of purchase, issued by a receiver of public moneys of the United States. The defendant in the court below, as a part of his answer, set up the existence of certain facts tending to show that said certificate was illegally issued, and that on account of such illegality the commissioner of the general land-office had canceled said certificate. The court, on motion of plaintiff, struck out, all that was alleged in the answer as leading to the action of the said commissioner in so canceling said certificate, and this, we think, was error, as, in our opinion, such allegations were proper by way of explanation, and defendant should have been allowed to prove them as a matter of explanation of the commissioner's said action. Besides, we think that the letter of said commissioner, offered in evidence by the defendant, should have been admitted as tending to prove the cancellation of said certificate, and its exclusion was error which entitles defendant to a new trial. But we find from the evidence that it appeared, by the testimony of both parties, that at the time this suit was commenced the claims of the respective parties thereto to the land in question were being waged in the department of the interior of the United States; and this fact being conceded, as we think it is by the record in this case, it was not proper for the court to interfere to aid either party (by way of affirmative relief) until the matter had been fully terminated by the executive branch of the government; and, upon this fact appearing to the court, it should have dismissed the cause at the cost of the plaintiff, and its refusal or failure so to do was error, for which the judgment and verdict must be set aside.

Owing to the existence of the facts above stated no new trial can be had, and a judgment will be entered here reversing the judgment of the lower court, with costs, and the cause remanded, with directions to the court below to dismiss said action, at the costs of the said plaintiff.

GREENE, C. J., concurred.

(7 Colo. 384)

SUPREME COURT OF COLORADO.

In re GARVEY.

Filed May 2, 1884.

Manslaughter is but a lower degree of murder, and a count properly framed for the higher offense, contains all the essential elements of a count for the minor offense.

Where circumstances have transpired, since an offense was committed, which render a charge of murder, contained in an indictment, inapplicable to the case of the offender, he is not necessarily discharged of manslaughter; the true test being whether the offense for which conviction is sought is included in the crime charged in the indictment, and whether it is sufficiently alleged.

In so far as the terms in an indictment charging murder exceed the description of manslaughter, they do not vitiate it as an indictment for manslaughter, but they may be treated as surplusage.

Where an offender is put upon trial for manslaughter, and the evidence discloses that the killing was perpetrated with malice aforethought, he may be convicted of manslaughter.

Where a person is convicted of murder, when his offense, under the law applicable to his case at the time of the indictment and conviction, was manslaughter, and the judgment is reversed for this error, a second trial may be had, under section 18, art. 2, Const., without putting him twice in jeopardy.

But if, when the judgment is annulled for this error, and the cause remanded for further proceedings, the trial court pronounces a judgment of manslaughter upon the first verdict, which was for murder, without submitting the case to another jury, it is error, and a writ of habeas corpus will be granted, under section 3, p. 532, Gen. St., to release the offender from confinement under the sentence.

Petition for writ of habeas corpus.

Wells, Smith & Macon, for petitioner.

The Attorney General, for the People.

BECK, C. J. The petitioner was indicted for the murder of one George Wolf, alleged to have been perpetrated on the twenty-third day of May, 1880. The indictment was found by the grand jury on the fifteenth day of March, 1881, on which he was tried at the special November term of the district court of Arapahoe county, 1881, found "guilty of murder, as charged in the indictment," and sentenced to imprisonment for life in the state penitentiary. A writ of error to the judgment was prosecuted to this court, and at the April term, 1883, we reversed the judgment and remanded the cause, for the reason that after the commission of the offense the legislature had so amended the statute concerning murder as to alter the situation of the prisoner to his disadvantage, without a saving clause as to the repealed provisions, thus making the law ex post facto as to the case of the petitioner. The petition is demurred to by the attorney general on behalf of the

people, and it is stipulated by counsel representing the respective parties that the cause be heard upon this demurrer, and that the record upon the writ of error, of Garvey (the petitioner) v. People, recently heard and determined in this court, together with the judgment of the district court of Arapahoe county, subsequently rendered, denying the motion to quash the indictment, and entering judgment upon the former conviction, be considered as a part of the present petition for writ of habeas corpus. Upon the return of the record into the district court, the petitioner moved to quash the indictment, upon the ground that it was insufficient in law, as appeared from the judgment of reversal. The petition alleges that the court denied the motion to quash, and gave judgment on the same verdict, without any further trial of the prisoner, that he be confined to the state penitentiary for the term of eight years. Upon this judgment the prisoner was committed to the penitentiary, where he still remains in confinement, and to be released from which he has sued out, from this court, the present writ of habeas corpus.

The judgment complained of is a judgment for manslaughter. The grounds of the present application appear to be: First, that the condition of the law applicable to the case of the prisoner at and since the time of his trial for murder has been such that he could not lawfully be tried for any offense charged in the indictment in question; second, that the action of the district court in pronouncing judgment for manslaughter without a trial by jury was without jurisdiction, and therefore null and void.

Upon the first proposition, it is contended that the repeal of the provisions of the law of homicide, above alluded to, quashed the indictment, or left it in the same condition it would have been if no law authorizing an indictment for murder had ever existed; that, if this be true, there could be no record in the district court upon which punishment for any offense charged in the quashed indictment could be inflicted. The repeal of the statutory provisions had the same effect upon the indictment as if a demurrer thereto had been sustained on the ground that it charged no crime. There could not be a conviction of manslaughter, because it was quashed in toto, and not in part only. A demurrer, it is argued, would not have been sustained as to the charge of murder, and overruled as to the charge of manslaughter involved in the allegations constituting murder, but the indictment would have been quashed and the prisoner discharged.

Much prominence is given the proposition that an indictment, or any pleading under a statute, which is repealed after the filing thereof, is, for all purposes, absolutely null and void. The act amending the Criminal Code was approved March 1, 1881; and while it did not go into effect until after the filing of the indictment, on the fifteenth day of March, 1881, still the amendment of the statute did not wholly repeal or annul the indictment. The law of homicide was not repealed. Two sections concerning the punishment of murder were repealed;