committee and its action were extrajudicial. | It may not be improper to initiate a proceeding to punish for constructive contempt by information. The affidavit will still be necessary, however, unless the information contains a statement of the facts and circumstances constituting the contempt. In such case, the information simply performs the office of the affidavit prescribed by the statute. As the atidavit must of necessity be sworn to, it is clear that the information must be verified. In the absence of verification, it is insufficient, and confers no jurisdiction upon the court to issue the attachment. Gandy v. State, 13 Neb. 445, 14 N. W. Rep. 143; Wilson v. Territory, 1 Wyo. 155; Young v. Cannon, 2 Utah, 560; In re Daves, 81 N. C. 72; State v. Myers, 44 Iowa, 580; Batchelder v. Moore, 42 Cal. 412; Whittem v. State, 36 Ind. 196; McConnell v. State, 46 Ind. 298; In re Judson, 3 Blatchf. 148. In the light of these authorities, it is clear that the court erred in overruling the motion to quash the information and the warrant of attachment, for the reason that the information was not verified.

It is unnecessary to consider other questions presented by the record. The judgment is reversed, and plaintiff in error discharged.

REED and RICHMOND, CC., concur.

PER CURIAM. For the reasons stated in the foregoing opinion the judgment is reversed, and the contempt proceeding ordered dismissed.

(14 Colo, 202)

COORS v. GERMAN NAT. BANK. (Supreme Court of Colorado. Feb. 28, 1890.) NEGOTIABLE INSTRUMENTS - BONA FIDE PURCHAS

ERS.

1. Where A. indorses drafts in blank to B., for collection, and B., wrongfully assuming to be the owner, sells and disposes of them to C., who has no knowledge of the want of ownership in B., C. is invested with good title, so as to retain the proceeds as against A.

2. C. is not chargeable with notice of ownership in A. by the fact that in B.'s letter, sending the drafts to C., they were described as "A.'s acceptances."

Commissioners' decision. Appeal from superior court of Denver.

Action by the German National Bank of Denver against Adolph Coors, to recover the amount of a $1,000 note executed by defendant and discounted by plaintiff. There was judgment for plaintiff, with allowance of certain offsets. Defendant appeals.

of the time of credit given, send the draft to the consignee for acceptance, to be returned to him. F. E. Everett was a private banker at Golden, and had been for many years. In July, 1884, he died insolvent. He kept an account and transacted business with appellee in Denver, and acted as agent and correspondent of appellee at Golden. Appellant, Coors, transacted his business and kept his account with Everett until the time of his death. His accepted drafts, when returned to him, were by him indorsed in blank, and deposited with Everett; the proceeds to be placed to his credit when collected. When in need of money, he made his notes payable to Everett, by whom they were discounted. It appears that Everett was in the habit of rediscounting these notes with appellee, which fact was not known to Coors; and, as appellee was in the habit of transmitting the notes at maturity to Everett for collection, Coors did not, necessarily, know that the notes had been rediscounted. On the 26th of March, 1881, Coors made his note to Everett for $1,500, payable 90 days after date, with interest. On the 8th of May, Coors made a note for $1,000, with interest, payable to Everett 60 days after date, which was the note on which this suit was brought. Both notes were indorsed in blank by Everett, and rediscounted for him by the appellee. After the death of Everett, Coors opened an account with the appellee. On the 8th day of May, 1884, Coors drew a draft on Keppler & Co., of Leadville, payable at 60 days, for $471.90. On the 21st of May he drew a second draft on Keppler for the same amount, at 60 days. On the 27th of May he drew his draft on Dyer & Northington, of Rawlins, Wyo., for $748.25, at 60 days. On May 14th he drew his draft on Crystal Bros., Pitkin, Colo., for $228, at 75 days,-all of which drafts were accepted by the drawees, returned to Coors, indorsed by him in blank, and deposited with Everett for collection. The drafts above described amounted in the aggregate to $2,131.12. The drafts were not discounted by Everett, nor passed by him to the credit of Coors. On the 24th of June, when the two notes of Coors for the sums, respectively, of $1,500 and $1,000, were nearing maturity, Everett applied to appellee to have the Coors drafts above described, and perhaps others, discounted to meet the maturing notes. On the 27th of June, an interview was had on the same subject, at which appellee declined to discount drafts to meet both notes, but discounted drafts on

REED, C. Coors, the appellant, who was defendant below, was, and for many years had been, a brewer at Golden, Jefferson county. His sales were mostly by car-lots or large quantities, shipped to various parties, and sold on time. It was his custom on the shipment to fill an order, to draw a draft payable to his own order, and, at the expiration

May 21st for $471.90, and draft on Dyer & Northington for $748.25, to pay the note of $1,500. The note, having been paid by Everett to appellee, was returned to Everett; and Coors, knowing nothing of the discount of his drafts by Everett to pay the note, and having no knowledge of the rediscount of the note by appellee, paid the same to Everett. The other drafts, not discounted, were left with appellee for collection. When col

lected, the proceeds were to be put to the credit of Everett. At the time of Everett's death, the note of Coors for $1,000 was unpaid in the hands of appellee. There was at that time, or afterwards, a small balance in its hands, the proceeds of collections of Coors' drafts, to the credit of Everett. At the time of the bringing of this suit there was also in the hands of appellee a small balance to the credit of Coors. This suit was brought to recover the amount of the $1,000 note. The defendant pleaded payment, and set up as counter-claims the amounts received by appellee on each of the above-mentioned drafts of Coors, collected by appellee. The case was tried by the court without a jury, who allowed as offsets the balance of proceeds of the Coors drafts to the credit of Everett in the hands of the appellee, and the balance on the account of Coors in the bank to the credit of Coors; leaving a balance on the note of $364.18, for which appellee had judgment. There was no serious dispute in regard to the facts. It was not claimed that Coors had any knowledge of the rediscounts of the notes made by Everett with appellee, nor the transfer and discounts of his drafts left for collection with Everett; nor is it claimed that appellee had any actual notice or knowledge that Everett was not the owner of the drafts of Coors.

The contention for Coors is-First. That under the circumstances proved, as above stated, appellee could not acquire title to the drafts. Second. That by the language used in the letters of Everett in regard to the Coors drafts, appellee was notified, or should have been, that they were not the property of Everett, but of Coors. The language relied upon was as follows: "Golden, Colo., July 8th, 1884. W. I. Jenkins, Esq., Cashier, Denver-Dear Sir: I advise Cr. to-day of 15,844, A. Coors, due Ju. 27, $1,500, int. $5, $1,505. Of the list of collections left with you of his, amt'g $2,617.05, $697 has been paid, & placed to Cr. my ac.," etc. Also of July 12th: "I note disc'ts Coors, $1,438.55, from list, leaving our 20,144, $471.90, due 10th, and extended five days as a collection for Cr. when paid." And from a memorandum made by Everett, and handed Jenkins, cashier of appellee, dated June 27th, on which Everett had written: "Discount A. Coors accept'cs, coll'n No. 20,144. Rem. June 6th, Keppler & Company, Leadville, due June 23 & 26th, $468.75," etc. We do not think the position of counsel on this last point tenable, and that there was anything in the language used by which appellee could be informed of anything in regard to the ownership of the drafts. It can only be regarded as description to designate the paper. We can find no authority, and none is cited by counsel, where it is held that any such deseriptive language can be construed to indicate ownership; and certainly no such inference could arise when Everett was the holder of them, properly indorsed without limitation, and dealing with them as his own.

The only question to be determined is whether Coors, having indorsed the drafts in blank to Everett for the purpose of having them collected and the proceeds placed to his credit, and Everett, wrongfully assuming to be the owner, could sell and dispose of them, and appellee, without knowledge of the want of ownership in Everett, could be invested with good title, so as to retain the proceeds as against Coors. It is a well-settled rule of law that one who acquires negotiable paper, in the usual course of business, before maturity, in good faith, for a valuable consideration from one capable of transferring the same, becomes a bona fide holder, and takes it divested of all prior equities. See section 4, c. 1, Code. And it has been so held in this court. Wyman v. Bank, 5 Colo. 30, and Bank v. McClelland, 9 Colo. 608, 13 Pac. Rep. 723. It is contended by the able counsel of appellant that "it was the duty of the bank proposing to purchase from Everett to have sought Coors, and ascertained from him whether Everett had any authority to sell or not." This is not in harmony with the law or the decisions of this court. In Bank v. McClelland, supra, it was said by the present chief justice, at page 610, 9 Colo., and page 725, 13 Pac. Rep.: "If there is nothing upon the face of a negotiable instrument or in the written indorsement or assignment to notify the assignee that the instrument was originally given upon an illegal consideration, (gambling debts excepted,) or obtained through fraud, the assignee who pays value therefor, and takes the same in good faith before maturity, may recover, as against the maker. This is true, even though such as. signee be in possession of facts or circumstances sufficient to arouse suspicion in the mind of a person of ordinary prudence, and though he is guilty of negligence in not first following up such information, for the purpose of discovering the fraud or illegality to which the suspicious circumstances may seem to point." The rule adopted in this court is that of the federal courts and a majority of the states. See Bank of Metropolis v. New England Bank, 1 How. 234, 6 How. 212; Swift v. Smith, 102 U. S. 442; Hotchkiss v. Banks, 21 Wall. 354; Murray v. Lardner, 2 Wall. 110; Brown v. Spofford, 95

U. S. 474. We are aware that in the state of New York, and some other states, following its decisions, the rule, as adopted in this state, is considerably modified. But the federal rule, as here adopted, appears to be the better rule, better founded in reason, and necessary in the interest of commerce, that requires that such paper should be allowed to pass from hand to hand with the greatest freedom possible consistent with safety; and it works no injustice to the owner of paper to say that he shall be held responsible for his own acts, and not an innocent party who has been misled by them. Coors could by a word have limited his indorsement so as to protect himself and others. That he failed to do so was not the fault of appellee, but his

own, and he must suffer the loss according to a principle so well known that a repetition here is unnecessary. The judgment

should be affirmed.

PATTISON and RICHMOND, CC., concur.

PER CURIAM. For the reasons stated in the foregoing opinion the judgment is affirmed.

(14 Colo. 277)

HAMILL V. WARD.

(Supreme Court of Colorado. Feb. 28, 1890.) CONTRACTS-JOINT AND SEVERAL OBLIGATIONS.

Under Civil Code Colo. § 13, (Gen. St. § 1834,) making joint instruments several also, the holder of a note who sues the maker and indorser as joint makers, dismisses as to the indorser, with out prejudice, and obtains judgment against the maker, may afterwards sue the indorser.

Commissioners' decision. Appeal from superior court of Denver.

Action on a promissory note.

|

Rothacker and Hamill as joint makers; but says that it is not true that in subsequent proceedings Rothacker and Hamill were charged as joint makers, or that judgment was taken against Rothacker as joint maker. Trial by the court, and judgment for plaintiff in the sum of $568, to which defendant duly excepted, and prosecutes this appeal.

Neither the transcript nor the abstract contains the record evidence introduced in the trial court; therefore objection relating thereto will not be considered. In the abstract of the bill of exceptions it is recited that plaintiff offered in evidence the execution and return in the case of Samuel D. Ward, assignee, v. O. H. Rothacker, (No. 963,) which shows that a levy had been made, and that execution was returned satisfied to the extent of $447.60 and costs, and unsatisfied as to $540.40; that plaintiff offered record of judgment and the papers and proceedings in case No. 963. It is further recited that of the amended complaint in No. 962 a

RICHMOND, C. June 17, 1884, O. H. Rothacker made his promissory note, payable four months after date, to the order of W. A. Hamill, for the sum of $914.76, with interest at 10 per cent. per annum. This note Hamill indorsed to the Rounds Type & Press Company. December 19, 1884, appellee herein, and plaintiff below, Samuel D. Ward, as assignee of the Rounds Type & Press Company, brought suit in the superior court of the city of Denver against Rothacker and Hamill, alleging that they were joint makers of the note. To this complaint Hamill interposed a demurrer. The grounds of the demurrer do not appear in the abstract or transcript of record; but in the brief of appellee we are informed that the grounds of demurrer were "that it did not appear by the complaint that defendant Hamill was liable as joint maker." The demurrer was sustained. Thereupon, upon motion of plaintiff, it was ordered by the court that the cause be dismissed as to defendant Hamill, at the cost of plaintiff; said dismissal to be without prejudice as to the rights of plaintiff against said defendant Hamill. Default was taken against Rothacker, and judgment entered for the full amount of the note, with interest. Exécution was issued, and $500 obtained. April 7, 1885, plaintiff instituted this action against Hamill to recover the balance due on the note, alleging the proceedings above recited, the insolvency of Rothacker, and that there now remained due and unpaid the sum of $542.40. The answer of defendant sets up previous suit, alleging that plaintiff had elected to proceed against Hamill and Rothacker as joint makers; that he obtained judgment against Rothacker as a joint maker; and therefore is barred from proceeding against the defendant Hamill in this action as indorser. To this answer plaintiff replies, admitting that the original complaint charged

the consideration of this case, and are those upon which the defense and appeal are based. By this amended complaint (if it be a part of the record in 963 instead of 962) it appears that defendants were proceeded against as joint makers, yet it also appears in the record that the demurrer was interposed to the complaint, and that plaintiff obtained leave to further amend complaint, and thereafter the order of dismissal, without prejudice, was entered. The contention of appellant is that plaintiff cannot have judgment against Rothacker as a joint maker with Hamill, and follow with a suit against Hamill as indorser. It is undoubtedly true that at common law a judgment against one of two joint promisors is a bar to an action against both jointly, and is also a bar to an action against the other. "Parties cannot be sued separately, for they have incurred no separate obligation. They cannot be sued jointly, because judgment has already been recovered against one who would be subjected to two suits for the same cause." "But, where the liability is joint and several, a judgment against one does not preclude procedure against the other or others." 2 Daniel, Neg. Inst. § 1296. By statute, however, in this state, joint instruments, including promissory notes, are declared to be several also, (Civil Code, § 13; Gen. St. § 1834;) | and, under said section 13, the separate obligation of the indorser or surety is made so far joint as to permit the adjudication of their respective liabilities in the same action. Bliss, Code Pl. (2d Ed.) § 93 et seq.; Pom. Rem. § 194 et seq. But this is optional with plaintiff, and, upon the dismissal of the former suit as to Hamill without prejudice, his liability in the present action remained unaffected. But it may be claimed that section 107 of the General Statutes is (notwithstanding the Code provision above mentioned) still in force in this as well as in other particulars. Upon this question we need not pass, for the reason that it is unimportant. If we as