no evidence that it ever did start, or ever could start, with a jerk, and in fact very little that it ever started at all. The witness contrasted this boy's method of starting it with that of the day boy, and also remarked that this boy sometimes started it gently, but in a majority of instances otherwise, thus emphasizing the fact that the quick motion of the elevator was not due to anything inherent in itself, but solely to the manner of its operation; and the jury could not possibly consider the question whether the elevator could be so suddenly started as to endanger passengers without at the same time considering how it could be so started, and why in fact it did so start.

The defendant introduced evidence contradictory of Saunders' testimony, and tending to show the general carefulness of the boy in handling the elevator; and counsel say that by introducing such evidence the defendant waived any error there might have been in the admission of Saunders' testimony, and made it competent. We do not understand how incompetent evidence can be made competent by further incompetent evidence. The question of the boy's carelessness on other occasions was not in the case. Saunders' testimony having been admitted against the objection of the defendant, it waived nothing by attempting to break its force, although, it may be remarked, the evidence given for that purpose was equally incompetent with the other. Martin v. Railroad Co., 103 N. Y. 626, 9 N. E. 505. The defendant also introduced evidence that the machine was so geared that it was impossible for it to be started with a jerk, but this evidence was not specially in answer to the testimony of Saunders. It was in direct support of the defense. It went in contradiction of the testimony of Louis Klein, and would have been admissible if Saunders had not testified at all. The competency of Saunders' testimony was not affected in one way or another by it. The evidence of the elevator boy's conduct at other times should not have been received; but, having been admitted, the only way of obviating its effect was to strike it out, and instruct the jury to disregard it entirely. The instruction of the court wholly failed in this.

But, if it was the design of the court to withdraw the objectionable evidence from the jury, its good intention was completely nullified by some of the general instructions given when the case was submitted, and which are assigned for error. Instruction No. 4 told the jury that if they believed from the evidence that the manner in which, or the rate of speed at which, the defendant's servant who was in charge of the elevator at the time of the accident was accustomed to set it in motion in ascending was such that a reasonable person ought to apprehend that a position therein would be a position of danger, it was the duty of its servants, etc. Instruction No. 5 also submitted to the jury

the question of its manner of operating the elevator. Both of these instructions, and more particularly the fourth, compelled the consideration on the part of the jury of all that Saunders had stated concerning the careless and negligent manner in which this boy was accustomed to start the elevator when he (Saunders) was on board, and entirely obliterated the distinction which, it is presumed, the court intended to draw in passing upon the admissibility of the evidence, and instructing as to the purpose for which it was admitted. All of the court's rulings upon this evidence, and the instructions involving it, were erroneous.

Over the defendant's objection, the court permitted the witness West to testify that he was standing in front of the block, when he heard the child's scream; that he immediately went up the stairs, to the third floor of the block, where he saw the elevator boy, and asked him what was the matter, to which he replied that he did not know,-that he supposed that somebody was hurt. The witness also said that he did not think the time between the accident and the conversation was over a minute. The controversy between counsel is as to whether this conversation was admissible as part of the res gestae. The question involved is not always free from difficulty, in cases of this kind. There is an apparent disagreement among the adjudications as to when declarations of which the principal transaction is the subject may be considered as part of the res gestae, and when not. The cases agree in their statement of the rule governing that class of evidence, and the seeming conflict has arisen out of the application of a general principle to special conditions, so that we find different conclusions deduced from similar facts. In some of the cases, declarations made a considerable time after the event, and where the connection between the two seems to be somewhat shadowy and unsubstantial, were held competent as part of the res gestae, while in others they have been held incompetent even when made directly upon the heels of the fact, and separated from it by an almost imperceptible interval of time. It is no part of our present purpose to attempt to harmonize the authorities, or to criticise any of them. The question before us can be decided upon principles which they all recognize, and without coming into collision with any adjudication of either of the classes. The general doctrine applica ble to the question may be stated thus: The declaration offered in evidence must be either contemporaneous with the principal fact, or its natural and spontaneous outgrowth. It must be the instinctive, unmeditated utterance of the party while the impression produced by the event has full possession of his mind. The connection between the statement and the fact must be such that the one is the evident interpreter of the other. Their relation to each other must be that of imme

diate cause and effect. When the two are thus connected, it does not matter that there is an appreciable lapse of time between them. Notwithstanding such lapse, the one is a continuation of the other, and both are parts of one transaction. But if there is a severance of the connection,-if the transaction, so far as the person speaking is concerned, is at an end before the declaration is made, the two are distinct, independent of each other, and it is immaterial how minute the interval which separates them. The utterance then proceeds from volition, and the speaker is not the mouthpiece of the event. See 1 Whart. Ev. § 259; 1 Greenl. Ev. §§ 108. 110.

The decisions in Com. v. McPike, 3 Cush. 181, and Insurance Co. v. Mosley, 8 Wall. 397, make a very liberal application of the rule, and in consequence have been subjected to considerable adverse criticism. The declarations which were held admissible in those cases were declarations of the injured persons, made some time after the injuries were received, but while suffering from their immediate effects; so that it was, without doubt, considered that the mental and physical condition of the parties, resulting directly from the injuries, furnished the necessary connection between the transactions and the statements. And in Augusta Factory v. Barnes, 72 Ga. 217, in which the facts were similar, the admission of the declarations of the injured party, made a half hour after the accident, and at a different place, was placed upon that precise ground. These decisions go to a length which, in other cases, is pronounced unwarranted; still, although the connection between the events and the utterances seems vague, the necessity of a connection is recognized, and it is not incumbent upon us to take issue with them, for any purpose connected with this decision. In this case no connection whatever appears between the fall of the child from the elevator and the words spoken by the elevator boy. If, when the child fell out, he had immediately lowered the elevator to the basement, against the floor of which she struck, any exclamation he might have made upon first coming in sight of her body, and realizing the fatal result of the accident, would perhaps be considered as part of the transaction, and therefore competent. But he continued his ascent, and was found by West upon the third floor of the building, and there the conversation in question was had. The catastrophe had taken place; he had abandoned the child to her fate; he was giving no attention to the occurrence; and, as to him, the transaction was as completely at an end as it was the next day or the next month. Moreover, it is evident from the language itself, which the boy used, either that the accident had made no impression upon him at all, or that he had concocted his answer under some vague idea that by affecting ignorance he might evade responsibility. Among the variant and conflicting decisions,

voicing the opposing extremes of judicial opinion, we have found no case upon the authority of which this evidence could be held admissible. And it cannot be said that the evidence was harmless. The answer made by the boy to West's question would indicate an indifference to the safety of his passengers, or an ignorance of what was happening within the elevator, either of which is incompatible with the care and watchfulness necessary in his position. It would also have a tendency to discredit his own testimony, in which, as a witness for defendant, he gave a minute and detailed account of the transaction, directly contradictory of that of Louis Klein. It was error to receive the evidence.

It was shown that the elevator had been in operation 15 months, and the defendant offered, and the court refused it permission, to prove that during that time large numbers of persons had traveled in it by day and by night, and that this was the first accident which had occurred. Where the proper construction or safe condition of machinery is in issue, evidence that it has always satisfactorily answered the purpose for which it was intended is competent as raising a strong presumption that it was properly constructed, and could be used with safety. It would also tend to repel any implication of negligence on the part of the owner in using improper machinery, because its continued operation for a long time with uniformly good results would be evidence of its freedom from danger, as convincing as any he could have. But we do not understand the complaint as charging that this elevator was unsafe for general travel. It is only in reference to the conveyance of small children that the charge of unsafety is made. The offer of the defendant, as it was framed, was, we think, too broad, and the evidence proposed would not have the effect of disproving the allegation. If evidence of this kind is proper at all under the peculiar averments of the complaint it should be restricted to the class of persons for whom the elevator is alleged to be a dangerous means of conveyance. We think this evidence was properly refused, but for the errors which we have noted the judgment must be reversed. Reversed.

(5 Colo. App. 300) HINCHMAN v. KEENER. (Court of Appeals of Colorado. Dec. 10, 1894.)

PROOF OF HANDWRITING.

1. Execution of a written contract was sufficiently proved where a witness testified that he was familiar with the handwriting of the person by whom it purported to be executed, and that the signatures were in said person's handwriting.

2. The weight and credibility of evidence will not be reviewed.

Appeal from Arapahoe county court.
Action by F. A. Keener against James B.

Hinchman for damages. Judgment for plaintiff, and defendant appeals. Affirmed.

A. W. Hille, for appellant. C. V. Mead, for appellee.

THOMSON, J. This action was brought before a justice of the peace to recover damages for a defective and insufficient roof put upon Keener's building by Hinchman. The cause went by appeal from the justice to the county court, where judgment was given against the defendant, Hinchman, for $280, from which he appealed to this court. The following instruments were received in evidence against defendant's objection: "Denver, Colo., Feb. 18, 1890. We will take off the roof on the Hax-Gartner Furniture Building, and put on a good 5-ply felt roof, using St. Louis pitch, for the sum of two hundred and eighty dollars; said roof to be guarantied not to leak for the term of five years; leaks to be repaired at my expense. James B. Hinchman, per Geo. N. Hinchman."

"Exhibit 2. Denver City, Colo., Feb. 22, 1890. This will certify that I put on a felt and gravel roof for F. A. Keener on building No. 1524 to 1530 Arapahoe street, known as 'Keener Block,' occupied by Hax-Gartner Co., which I guaranty not to leak from exposure to natural causes of weather, such as rain, snow, cold, or heat, for the term of seven years from above date. If leaks occur from said causes, they to be repaired at my expense for said term. James B. Hinchman, per Geo. N. Hinchman."

The objection made below, and urged here, is that the execution of the instruments by George N. Hinchman, as the agent of defendant, was not sufficiently proved. A witness, Samuel J. Young, testified that he was familiar with George N.'s handwriting, and that the signatures to the instruments were in his handwriting. Prima facie, his competency to testify to the genuineness of the signatures was established. The defendant had the right to test his competency by cross-examination as to the character and extent of his acquaintance with the handwriting, but nothing of the kind was attempted. As the action originated before a justice, there were no written pleadings, and the issues were defined by the evidence. The defendant was a witness, and did not deny the execution of the instruments. They were properly in evidence. The roof was constructed and paid for, and the evidence as to its conformity with the guaranties was conflicting. There was evidence that it leaked both tar and water in considerable quantities; that the defendant was notified of the facts, and requested to make the necessary repairs, which he failed and refused to do; and that the plaintiff had it reconstructed at a cost of $280, which was the reasonable value of the work. In so far as this evidence was disputed by evidence to the contrary, the question of its weight and credibility was deter

mined by the court below, and its judgment upon the facts binds us. The judgment must be affirmed. Affirmed.

(5 Colo. App. 302)

CRAMER v. MARSH. (Court of Appeals of Colorado. Dec. 10, 1894.) RECORD ON APPEAL-TROVER BY PLEDGEE-MEASURE OF DAMAGES.

1. In order that the appellate court pass on the question of fraud, it is essential that the record disclose all the testimony on the subject, and if it be excluded the offer of proof must be sufficiently broad to indicate the extent to which it would have gone.

2. In an action of trover by a pledgee of goods to recover from a sheriff for his seizure of the goods under attachment process sued out by creditors of the pledgor, the measure of damages is the interest of the pledgee in the goods at the time of suit.

Appeal from district court, Arapahoe county.

Action by Lucius P. Marsh, as trustee, against Frederick Cramer, to recover damages resulting from the seizure by defendant, as sheriff, of certain goods held by plaintiff in trust for the payment to Harriet A. Howard and Alexina M. Smith of certain debts owing to them by B. P. Brasher & Co. Defendant seized the goods under process issued by certain other creditors of said B. P. Brasher & Co. On a former trial of the cause there was judgment for defendant, which, on appeal by plaintiff, was reversed. 27 Pac. 169. A similar cause, by another creditor against the United States marshal, terminated in a judgment for plaintiff, which was affirmed on appeal. Hill v. Bank, 30 Pac. 489. At this trial there was judgment for plaintiff, from which defendant appeals. Reversed.

This litigation sprung from the insolvency of B. P. Brasher in 1886. Brasher did a wholesale liquor business in Denver under the name of B. P. Brasher & Co. His operations were extensive, and he bought very considerable amounts of stock, which remained unsold at the time of the transaction involved in this suit. Prior to his coming here he had evidently been in business elsewhere, and contracted to other parties than those who were the immediate creditors of his concern in Denver a large indebtedness. Among those whom he owed were two women,-Harriet A. Howard and Alexina M. Smith, the first being his aunt, and the latter his mother-in-law. Brasher owed these two persons upwards of $8,000, which had been long due. About the time of his failure, he attempted to protect them by transferring to the appellee, Marsh, some of his stock, which was stored with some warehousemen. To carry out his design, he executed and delivered the following pledge:

"Denver, December 6, 1886. I, B. P. Brasher, trading under the firm name of B. P. Brasher & Co., do hereby assign the within warehouse receipt, and the goods, wares,

and merchandise named therein, to Lucius P. Marsh, in pledge and as security for the payment of my indebtedness to Harriet A. Howard, amounting to about $4,500, and my indebtedness to Alexina M. Smith, amounting to about the sum of $3,300, and which claims are severally in the hands of said Marsh for collection. B. P. Brasher & Co. "I accept the pledge and security named above. Lucius P. Marsh.

"We hold the goods named within subject to the order of Lucius P. Marsh under the above assignment. Graham, Webber & Hill."

After the execution of this security and the delivery of the goods through the indorsement and transfer of the warehouse receipt, Marsh proceeded to dispose of the merchandise, and apply the proceeds to the liquidation of the indebtedness. About the same time, to still further secure and pay these parties, Brasher transferred to H. W. Smith, who was Alexina's husband, divers notes which he had received in the usual course of his business. These notes were made by different parties, and amounted to about $5,000. After all this had been done, and Marsh, the trustee, had collected several thousand dollars, and remitted it to the creditors, and those persons had also received the notes, the Kansas City Distilling Company brought an attachment suit against Brasher to recover the price of some liquors, which were possibly included in what was transferred to Marsh. The latter fact is not quite evident. When the attachment writ was given to the sheriff, he executed it by seizing the unsold goods which were covered by the pledge, and which were still in the possession of the warehousemen. The seizure was made in March, 1887. Shortly afterwards, Marsh brought this suit, which is analogous to trover at the common law, to recover the damages resulting from the seizure and the conversion by the sheriff. As plaintiff, Marsh alleged the indebtedness which Brasher owed to Mrs. Smith and Mrs. Howard; its nonpayment; the transfer of the warehouse receipts in pledge, and as security for its payment; that the indebtedness was due and unpaid, and the merchandise covered by the warehouse receipt insufficient to pay the debts. The sheriff took issue on these allegations. As was evidently necessary, Marsh offered evidence tending to establish the indebtedness of Brasher to Howard and Smith, the extent of his collections and payments, and, as a conclusion, the amount which would remain due from the debtor to his creditors, and the value of the goods which had been transferred. If he proved that the pledge was inadequate to pay the debts, it would establish his right as pledgee to hold and sell the goods, and apply the proceeds. During | the progress of the trial, and on the examination of some of the plaintiff's witnesses, evidence was developed which tended to prove that, at about the time of the execution of the pledge, Brasher had transferred for the

benefit of these creditors the notes referred to, and that those notes had been liquidated and applied by these particular creditors to the satisfaction of their claim. There was evidence in the case which, if believed by the jury, would tend to show that at the time of the seizure by the sheriff a very large proportion, if not all, of the claims of these two creditors had been satisfied, and that thereby the object of the pledge had been accomplished, and the trustee no longer had any claim to hold goods for the benefit of those persons, who, by the payments, had ceased to be creditors at the time of the levy. There was evidently a good deal of testimony offered touching the character of Brasher's failure, and tending to impeach its fairness and establish its fraudulent character, as well as some proof tending to bring home to these creditors knowledge of its dishonesty. Some of the evidence which was offered was refused, but the record, as printed in the abstract, is not sufficiently full or definite to call upon us to examine this question, or express an opinion about it. When the trial was concluded the court was requested to instruct the jury concerning the legal effect of the payments which had been made. Substantially, he was asked to instruct the jury that if they found from the evidence that at the time of the seizure of the goods these claims had been paid, or had been partially discharged, in the one case their verdict must be for the defendant, and in the other their verdict must be only for so much of the value of the goods as would be sufficient to satisfy the outstanding and unsatisfied portion of the creditors' claims. The court refused to give either instruction, or any on the subject, and in general charged them that if at the time of the pledge, in December, 1886, there was any indebtedness between Brasher and these two creditors, Marsh, by virtue of the transfer of the warehouse receipts, became the owner of the goods, and was entitled to a verdict for their entire value, regardless of the condition of the accounts between the parties at the time the sheriff took the goods. The questions thus raised are properly saved and presented. The jury rendered a verdict in favor of the trustee for the value of the goods, and the sheriff prosecutes the appeal.

Wolcott & Vaile and William W. Field, for appellant. V. D. Markham and Henry Carr, for appellee.

BISSELL, P. J. This matter has been in litigation ever since Brasher's failure, in 1886. The present suit was tried once before, and from the judgment in that case the trustee, Marsh, prosecuted an appeal to the supreme court, which is reported in 16 Colo. 331, 27 Pac. 169. An analogous transaction gave rise to another suit, which was brought to this court, and is found in 2 Colo. App. 324 30 Pac. 489 (Hill v. Bank). These two deci.

sions seem to be very much relied on by the counsel for the appellee in his argument. As we read those two cases, neither of them touches upon or decides what in the present opinion is made the pivotal question. The decision of the supreme court in 16 Colo. 331, 27 Pac. 169, turns almost exclusively upon a consideration of the question of fraud in the failure, coupled with the knowledge of the creditors concerning the nature and character of the transaction. The judgment in that case was reversed for the errors which the court committed in instructing the jury concerning sundry sales of the goods pledged, which had been made by Brasher, and respecting what was alleged to be the fraudulent character of the entire transaction. The court very properly held that the jury were entitled to be informed concerning the law which would be applicable in cases of that description, and the failure of the court to instruct them on these subjects necessitated a new trial of the case. There is nothing, however, in the statement of facts preceding the opirion, and nothing in the opinion itself, respecting the question, which has been foreshadowed by the statement in this, and the opinion does not help us in this particular. It is conceded that the present appellant attempts to question the character of the transaction. We do not, however, find enough in this record to call for any expression on this subject. Those two decisions will serve to guide the judge who may ultimately retry the case. To entitle an appellant to insist that the court shall pass on such questions, it is essential that the record disclose all the testimony on the subject, and if it be excluded the offer of proof Dust be sufficiently broad to indicate the extent to which the testimony would have gone if the court had ruled with him. In our judgment the present record does not rise to this level, and we are therefore relieved from the labor of stating what the law might be upon some case not disclosed. The case in 2 Colo. App. 324, 30 Pac. 489, practically turns on the same question, and the discussion of the court is limited to the same subject-matter. It is true, the learned judge writing the opinion states in a general way the law concerning warehouse receipts, and the rights of pledgor and pledgee in cases of transfer; but even a casual examination of the opinion will disclose the fact that the nature of the transfer in the present case, and the title which the pledgee took, and the measure of his damages when he brought an action for the conversion of the goods, were not in the contemplation of the court when the case was decided.

Enough has been stated to show that in a resolution of the present inquiry these two antecedent decisions give us no aid. The character of the instrument which formed the basis of the present suit was fully recognized by the pleader in drafting his complaint. It is therein designated as a pledge,

and the pleader generally alleges its execution and transfer to Marsh, as trustee, as security for the payment of the debts of the cestuis que trustent, the nonpayment of the indebtedness, the conversion of the goods, and the consequent damage. The true nature and character of a pledge have been long established, and, aside from any special limitations or conditions contained in the con tract, the rights and the title of the pledgee are almost universally agreed upon by all text writers, and in all precedents. The present litigation does not call for any statement of the differences between a mortgage and a sale and a pledge, but it is enough to recognize the declared law to be that the pledgee is never treated as an absolute owner, but as one having a special title and a special property, which may, with sufficient accuracy for the present determination, be stated to be limited to what is necessary to accomplish the purposes for which the property was put in pledge. Jones, Pledges, §§ 4, 11, et seq.; Cortelyou v. Lansing, 2 Caines, Cas. 200; Robertson v. Wilcox, 36 Conn. 426.

Whenever there is an interference with the property, the pledgee may have an action against the trespasser to recover his damages. It is unnecessary to determine whether this is true in all cases where the title of the possessor is limited, because it is universally ac knowledged that a pledgee may maintain suit to recover for any injury which destroys the value of his contract, or deprives him of his possession and title. Since this is true, it becomes very important to inquire what damages the pledgee may recover when his possession is disturbed, and the property taken away from him, under circumstances like those which surround the present transaction. The goods were in the pledgee's possession under a transfer which was sufficient in the law to vest him with a special title, and with the right of possession, until the purposes of the pledge had been accomplished. When the sheriff took the goods he rendered himself liable to suit at the instance of the pledgee, and must respond in some way and to some extent for the damage which he has occasioned. All the cases recognize a very wide distinction between the responsibility incurred by a stranger and that which attaches to the owner, or one in privity with or claiming under him. Wherever an action in trover is brought by the pledgee against one who is a mere wrongdoer, he is always entitled to recover what he can show to be the value of the goods pledged, regardless of his special interest in the property. The rule seems to be based upon the consideration that this result avoids all circuity of action, subjects the wrongdoer to but a single suit for his trespass, and leaves the pledgee to answer over to the pledgor for any surplus which may come into his hands as the result either of a suit or of a sale. But when the property is seized by the owner, or by any one who claims in his right, the pledgee may then only