isfied. The only question that remains, therefore, is, what damages has the plaintiff sustained by failure of defendant Imel to prosecute his replevin suit to effect?

The objects and purposes of a replevin bond are to indemnify the officer who executes the replevin writ, and to indemnify the defendant or person from whose custody the property is taken for such damages as he may sustain: 2 Sutherland on Damages, p. 46; Petrie v. Fisher, 43 Ills., 442.

Where the defendant in replevin is an officer who has acquired a special interest in or title to the property replevied, by virtue of a writ of attachment against the owner, he is entitled to retain custody of the property until the demand is satisfied. But in the absence of an order awarding the property to his custody, he must affirmatively show, in an action on the bond, that the demand has not been satisfied, otherwise it will not appear how, nor to what extent, he has been damnified.

There was no such proof in this case. Jones, the plaintiff in the action on the bond, stated on the witness stand that the damages to him personally was nothing, and he neither stated nor attempted to prove that any damage accrued to him officially. The proof introduced by the defendants, Imel and Huber, tends to show that the demand of Morgan, which amounted to the sum of forty-eight dollars and sixty-five cents, was satisfied by the appropriation by him of the wagon above mentioned, a part of the attached property.

Defendants offered to introduce in evidence the proceedings in the attachment case, but they were excluded upon the objection of the plaintiff. It appears, however, that no judgment had been rendered in the attachment case by the justice of the peace before whom the proceedings were instituted, although more than four years had elapsed since the suing out of the writ. The evidence also showed that Imel returned the property replevied to Havens, who was the owner thereof, and that he paid all costs occasioned by the replevin proceedings.

Under the circumstances, we are of opinion that the judgment in this case, of three hundred and nineteen dollars, which exceeds the value of the property replevied by the sum of ninety-nine dollars, according to the plaintiff's estimate of its value, was unauthorized. We fail to discover anything, in the case presented, that would warrant a judgment for more than nominal damages. The judgment is reversed and the cause remanded.

DENVER TRANSIT AND WAREHOUSE COMPANY v. SWEM

Filed February 6, 1885.

VENDOR AND VENDEE USE AND OCCUPATION DOES NOT LIE FOR PERSONALTY.-Where the vendee under a contract for the sale of certain buildings, situated on land of which they had never become a part, takes possession of the buildings under the contract, and afterwards refuses to perform the same, the vendor cannot maintain an action against him to recover rent for the use and occupation of the buildings as realty.

APPEAL from the district court of Arapahoe county. The opinion states the facts.

Lucius M. Cuthburt, for the appellant.

John W. Horner, for the appellee.

HELM, J. Action to recover reasonable rent for the use and occupation of the premises described in the complaint The suit was evidently brought by plaintiff, and tried by the court, upon the theory that the property occupied and used was realty.

But the plaintiff himself positively testified to the following effect: First, That he leased from the U. P. R'y. Co. a certain warehouse, in Denver, and that he owned no interest in the land upon which it stood. Second, That while in possession as tenant he used a quantity of lumber and other materials in erecting a shed, and in repairing and improving the warehouse for his own convenience. Third, That by express agreement with the lessor at the time of making such improvements, he was to retain the absolute ownership in, and exercise the right of removing all of the materials so used. Fourth, That in pursuance of this agreement he negotiated and bargained with defendant, it being his successor as tenant under the U. P. Company, for the sale to it of these materials or improvements. Fifth, That while this contract of purchase was in full force, defendant entered into occupation of the entire premises, and with plaintiff's consent, into the use of said property thereon, belonging to plaintiff. Sixth, That defendant failed and refused to pay the purchase price, and plaintiff resold to a third person; and Seventh, That he then instituted this action to collect from defendant, rent for the use of the property.

The evidence offered on the part of defendant, showed that both it and the U. P. Company at all times recognized plaintiff's ownership of said property, and his right to remove the same when he should see fit so to do.

Thus, it appears beyond question, that plaintiff's property always retained the character of personalty. The materials, whether we call them lumber, additions, buildings, or improvements never became a part of the realty. The special contract providing for continual ownership and removal thereof, stamps upon the same, as to all the parties named, the character of personal property. And this position is further reinforced by the fact that the improvements were made by plaintiff while tenant, for his own convenience in his private business: See Tyler on Fixtures, p. 114, et seq., also 129 et seq., 146.

Defendant denies that it ever made the alleged, or any other contract of purchase, with plaintiff; and upon this question the evidence is conflicting and evenly balanced. But we will accept as correct for the purposes of this case, the jury's findings thereon in favor of plaintiff.

The case made by the evidence then is as follows: Plaintiff sold and delivered to defendant certain personal property; defendant

used and enjoyed the same for a time, but finally refused to pay the purchase price agreed upon; it, however, recognized plaintiff's right to retake the possession; and plaintiff did resell and deliver the same to a third party.

Upon this state of facts what was plaintiff's remedy in the premises? First, he might have refused to receive the property back, and have brought suit for the purchase money, with interest. But, second, having resold it, the extent of his recovery against plaintiff would, at most, be limited to interest on the contract price from the date when it should have been paid, plus the difference between that price and the amount actually received; provided the latter was the market value of the property.

We do not wish, however, to be understood as stating the foregoing to be positively the measure of damages in such cases; we are not here required to lay down a rule upon this subject, and it would be dictum were we to do so. Our purpose is simply to show that the measure of damages adopted at the trial of this case was incorrect. That under the facts no recovery of rent for use and occupation can be sustained; a proposition that will hardly admit of question, and probably needs no support by way of argument or authority.

Had defendant taken possession of this property under a lease, verbal or written, or had it entered under a contract of hire it might have been estopped from invoking rules applicable to the sale of personalty. But, considering the case as made by plaintiff himself, in no possible view can the recovery be sustained. The judgment is reversed.

TURCK V. MARSHALL SILVER MINING COMPANY.

Filed February 6, 1885.

BREACH OF CONDITION IN BOND-PENALTY-LIQUIDATED DAMAGES.-The sum stipulated to be paid upon a breach of the condition of a bond for the conveyance of land, will be considered as a penalty and not as liquidated damages, unless other language used in the instru ment, or accompanying circumstances, show that the latter was the intention of the parties. APPEAL from the district court of Clear Creek county. The opinion states the facts.

Teller & Orahood, for the appellant.
Morrison & Fillins, for the appellee.

HELM, J. Action at law upon a bond executed by the defendant company, conditioned for the reconveyance to plaintiff of certain property therein described, upon issuance of patent therefor to the

company.

We deem it sufficient for the purposes of this case to say that the sum named in this bond must be viewed as penalty, and not as liquidated damages. There is nothing in the instrument itself, or in the evidence extraneous thereto, which justifies the conclusion that the

parties intended to make five thousand dollars the exact measure of damages in the case of failure to perform. There was no contract of sale; the conveyance to defendant by plaintiff was simply a matter of mutual convenience to both in obtaining patent to the premises; the evidence discloses no change of possession; plaintiff remained the equitable owner notwithstanding the transfer of the legal title; and the latter title was to be reconveyed upon issuing of the patent; plaintiff introduced no proof that this amount was considered by himself and defendant as liquidated damages.

A bond is said to be "prima facie a penal obligation;" and the sum mentioned therein is not considered as liquidated damages unless, other language used in the instrument, or accompanying circumstances, show that such was the intention of the contracting parties.

But if the sum named in the bond was penalty, plaintiff was only entitled to recover such damages as he might suffer from breach of the condition specified. He neither proved, nor offered to prove, the extent of his injury, if any there were, under the contract; in view of the fact that defendant offered, and stood ready, to make the deed called for by the bond, it may be that no actual damages were sustained on account of the delay. Therefore, conceding that a technical breach of the bond occurred, plaintiff was only entitled to nominal damages; he recovered one dollar, and that recovery carried the costs; hence, he cannot now be heard to complain.

The clause in the judgment concerning the deeds deposited by defendant as a continuing tender imposes upon plaintiff no burden; it compels no action on his part; from it he can suffer no possible injury; the court would certainly not undertake to coerce his acceptance of these deeds against his will. There would seem to be no good reason why we should reverse the judgment on this account, and direct a new one. This provision, if improper and irregular, may be regarded as surplusage.

The judgment is affirmed.

CARPENTER V. PEOPLE EX REL. TILFORD.

Filed February 6, 1885.

CONSTITUTION LAW SPECIAL LEGISLATION-LIMITATION ON.--Under a constitutional limitation, prohibiting the legislature from passing a special law in cases where a general law can be made applicable, the question. whether or not a general law can be made applicable for a given purpose, is for the legislature to determine. The courts, however, will review such determination, if it clearly appears that a special act was passed by reason of bad faith on the part of the legislature, or without due investigation and deliberation, or the exercise of sound judgmenf. But every question of doubt should be resolved in favor of the validity of the act challenged.

THE SAME SPECIAL ACT UNCONSTITUTIONAL IN PART.-A special act of the legislature amending and revising a city charter, does not necessarily entirely fail because a portion of it is unconstitutional.

THE SAME-AMENDING CITY CHARTER.-Sections 13 and 14 of article XIV of the constitution do not prohibit the legislature from passing a special act to amend a city charter, granted by a local act passed prior to the adoption of the constitution, where such city has

not elected to become subject to and to be governed by the general law relating to corpora tions.

THE SAME PROVISION OF CONSTITUTION CONSTRUED.-Section 2 of article XV of the constitution, providing that "no charter of incorporation shall be granted, extended, changed, or amended by special law, except for such municipal, charitable, educational, penal or reformatory corporations as are or may be under the control of the state," should not be construed, by substituting for the words "municipal corp rations," the words "quasi municipal corporations;" nor do the words, "under the control of the state," mean under the executive or ministerial control, to the exclusion of the legislative control.

MUNICIPAL CORPORATIONS -POWER OF CITY COUNCIL.-The city council of a municipality has no authority to abridge the terms of the city officers, as the same exist under the city charter.

ELIGIBILITY OF SENATOR OR REPRESENTATIVE TO ELECTION.-A constitutional provision, that "no senator or representative shall, during the term for which he shall have been elected, be appointed to any civil office under the state," does not disqualify such person from being elected to such office.

CONSTITUTIONALITY OF ACT AMENDING CITY CHARTER OF DENVER.—The act of the legisla ture of February 13, 1883, entitled "An act to reduce the law incorporating the city of Denver, and the several acts amendatory thereof, into one act, and to revise and amend the same," is constitutional.

Appeal from the district court of Chaffee county. The opinion states the facts.

Geo. H. Gray and M. B. Carpenter, in pro. per., for the appellant. R. H. Gilmore, for the appellee.

BECK, C. J. The legislature, by a special act approved February 13, 1883, and which went into effect on that day, entitled, "an act to reduce the law incorporating the city of Denver and the several acts amendatory thereof into one act, and to revise and amend the same," among other things, created the office of city attorney, and provided that an election should be held in each ward of the city on the first Tuesday of April, 1883, for the election of a mayor, treasurer, auditor, city attorney and other city officers.

The act further provided that the officers to be elected should hold their respective offices for two years, and until their successors should be elected and qualified; and that every two years thereafter an election should be held for the election of certain officers named, including city attorney. It also specifies that the officers to be elected should qualify before entering upon the duties of their respective offices, and provided that if any officer should fail to qualify within twenty days of his election, the office to which he was elected, should be deemed vacant.

An election was held at the time designated and the relator, Tilford, was elected to the office of city attorney. He qualified in the manner and within the time prescribed, and then made dem ind upon the respondent, Carpenter, who was in possession and exercising the duties of said office, for possession thereof. This demand was refused, the respondent claiming to hold said office by virtue of an election by the city council of said city, held on the first day of March, 1883, and claiming that he was entitled to hold said office for and until the sixteenth day of November then next ensuing, by virtue of the provisions of a city ordinance adopted on the fifth day of April of said year.

Respondent also denied the validity of the law under which the relator claims title to said office on the ground that it is a local or