Ing its condition, therefore, was simply a matter for the consideration of the jury in determining the question of contributory negligence. Wells v. Coe, 9 Colo. 167, 11 Pac. Rep. 50. We have carefully examined the evidence. It is somewhat conflicting, and it may be admitted that the jury would have been warranted in rendering a different verdict. We do not, however, perceive any clear and substantial reason which would justify an appellate court in exempting this case from the application of the rule that questions of negligence and contributory negligence are generally questions of fact to be determined by the jury under proper instructions from the court upon matters of law. Electric Co. v. Lubbers, 11 Colo. 508, 19 Pac. Rep. 479; Lord v. Refining Co., 12 Colo. 393, 21 Pac. Rep. 148. All questions of fact were fairly submitted to the jury by the charge of the trial judge. No objection whatever is urged on this appeal against the instructions. The judgment of the district court must accordingly be affirmed. HAYT, J., having presided at the trial below, did not participate in this decision. (15 Colo. 98) SUTTON V. DANA. (Supreme Court of Colorado. May 19, 1890.) CONVERSION-MEASURE OF DAMAGES-SALES BY INSOLVENT DEBTOR. 1. The general rule is that the measure of damages in actions for the conversion of personalty is the value of the property at the time of the taking, with legal interest thereon from the date of the taking to the date of rendering verdict. 2. When instructions prayed state the law applicable to the issues and the evidence with substantial accuracy, they should be given in substance. 3. Ordinarily, an extended charge to the jury is unnecessary; but when the question to be determined by them is complicated, and dependent upon a variety of circumstances and conditions, it is important that the jury should be guided in their deliberations by the learning and experience of the presiding judge. 4. The fact that a party at the time of making a sale is insolvent or unable to pay all his debts does not deprive him of the power or render it unlawful for him to make such sale. A debtor in such condition may lawfully sell and dispose of his property, provided he does so for a fair and adequate and valuable consideration paid or to be paid by the purchaser, and from lawful motives, or without fraudulent intent as respects his creditors. His motives will be presumed to be lawful, and his intent not fraudulent, until the contrary is shown. Insolvency, if it exists, is only a circumstance to be taken into consideration by the jury in determining the question of fraudulent intent, for which alone the sale may be set aside. Of itself, insolvency constitutes no obstacle to the sale, or to its lawfulness or validity, if fairly and honestly made. 5. An insolvent debtor may lawfully prefer some of his creditors to others, and pay some of them in full, leaving others partially or wholly unpaid so far as he shall be without means of payment, and may lawfully sell and dispose of his property for a fair, adequate, and valuable consideration, for the purpose of making such payment or payments. The law permits an insolvent debtor to make choice of the creditors he will pay, and the mode or means by which he will make such payment, and something beyond such preference or payment must appear before the transaction is to be considered fraudulent. The preference of creditors by a failing debtor is not necessarily fraudulent. (Syllabus by the Court.) Appeal from district court, Douglas county. The appellant was plaintiff below, and brought his action against defendant for the taking and conversion of a stock of merchandise, of which plaintiff claimed to. be the owner. The defendant was sheriff of El Paso county, and justified the taking under judgment and execution against one Conant, the original owner of the property, pleading specially that the sale thereof to plaintiff was fraudulent and void as against the creditors of Conant. The evidence tended to show that Conant, being in the mercantile business, and in failing circumstances, sold the stock of merchandise in controversy to the plaintiff, Sutton, taking Sutton's notes therefor, and that Conant immediately transferred the notes to certain of his creditors other than the judgment creditors represented by the sheriff. The principal controversy at the trial was whether such sale of the goods to Sutton invested him with a good title as against such creditors. The defendant undertook to prove that Conant made the sale with intent to hinder, delay, and defraud his creditors, and that plaintiff had knowledge of such intent; and also that the sale was not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the goods sold. The plaintiff gave evidence tending to show that the sale was made in good faith for a valuable consideration, and with intent to apply the proceeds thereof towards the payment of Conant's indebtedness, and not for any unlawful purpose. The verdict and judgment were in favor of defendant. The assignments of error relate to the giving and refusing of instructions, and to the overruling of the plaintiff's motion for a new trial. L. S. Dixon, for appellant. Wolcott & Vaile, for appellee. ELLIOTT, J., (after stating the facts as above.) The general rule is that the measure of damages in actions for the conversion of personalty is the value of the property at the time of the taking, with legal interest thereon from the date of the taking to the date of rendering verdict. It was error for the court to refuse to give an instruction to this effect, as requested by plaintiff's counsel. The error, however, is not material upon this review, unless it be found that other error was committed which may have improperly caused the trial to result in favor of defendant. Refining Co. v. Tabor, 13 Colo. 59, 21 Pac. Rep. 925; Oppenheimer v. Railway Co., 9 Colo. 321, 12 Pac. Rep. 217. The charge of the court, as given, other than the matter relating to the measure of damages, appears to be unobjectionable. The principal matter complained of is the refusal of the court to charge the jury as requested by plaintiff's counsel. It is the right of a party to pray instructions in writing to be given to the jury at the proper time; and when instructions thus prayed state the law applicable to the issues and the evidence with substantial accuracy, they should be given in substance. The instructions prayed in behalf of plaintiff were numerous and comprehensive. They were each and all refused. Ordinarily, an extended charge, such as was requested in this case, would be altogether unnecessary, and perhaps injurious to the ends of justice, in a trial by jury. But the question of fraudulent intent in actions of the kind under consideration is often a complicated one. The acts which a failing debtor, situated as Conant was, may or may not lawfully do, depend upon a variety of circumstances and conditions. The law relating to such transactions is familiar to the legal profession, and may be supposed to be generally understood by business men engaged in commercial pursuits. Nevertheless, a jury may be composed of men whose minds are comparatively uninformed upon the subject. Hence, it is important, in such cases, that the jury shall be guided in their deliberations by the learning and experience of the presiding judge. We shall not undertake to review all of the instructions prayed in behalf of plaintiff; a few will suffice for the purposes of this opinion. Under the issues, evidence, and circumstances developed at the trial, if Conant, at the time of making the sale, was insolvent, or unable to pay all his debts, that fact did not deprive him of the power or render it unlawful for him to make such sale. A debtor in such condition may lawfully sell and dispose of his property, provided he does so for a fair and adequate and valuable consideration paid or to be paid by the purchaser, and from lawful motives, or without fraudulent intent as respects his creditors. His motives will be presumed to be lawful, and his intent not fraudulent, until the contrary is shown. Insolvency, if it exists, is only a circumstance to be taken into consideration by the jury in determining the question of fraudulent intent, for which alone the sale may be set aside. Of itself, insolvency constitutes no obstacle to the sale, or to its lawfulness or validity, if fairly and honestly made. An instruction to this effect was requested by plaintiff. It was error to refuse it. So, too, it was error to refuse to charge the jury in substance that a debtor, situated as Conant was, might lawfully prefer some of his creditors to others, and pay some of them in full, leaving others partially or wholly unpaid so far as he should be without means of payment, and might lawfully sell and dispose of his property for a fair, adequate, and valuable consideration for the purpose of making such payment or payments; that the law permits an insolvent debtor to make choice of the creditors he will pay, and the mode or means by which he will make such payment, and that something beyond such preference or payment must appear before the transaction is to be considered fraudulent. The preference of creditors by a failing debtor is not necessarily fraudulent. Campbell v. Iron Co., 9 Colo. 60, 10 Pac. Rep. 248; Bank v. Newton, 13 Colo. 256, 22 Pac. Rep. 444. It is not our province to pass upon the weight of the evidence relating to the question of fraudulent intent, nor do we intimate that the verdict would have been different if the refused instructions had been given as prayed; neither must we be understood as saying that the trial court should have given all or any of the refused instructions in the precise form and manner as requested, but, as we have seen, since some of them correctly stated the law applicable to the issues and evidence, such correct instructions, or in their stead, others in substance like thera, should have been given to the jury. Boyce v. Stage Co., 25 Cal. 470. What we have already said will undoubtedly be sufficient to guide the court below on a retrial of the case without further expression of opinion as to the other instructions refused. We refrain from going further lest we might mislead rather than aid the trial court in so doing. Instructions should be appropriate to the evidence as introduced under the issues at the trial. They should be such as will properly guide the jury in their deliberations upon the particular matters brought before them for determination; hence, instructions cannot always be anticipated with safety, even where there has been one trial, inasmuch as the evidence may be different on the second trial. The judgment of the district court is reversed, and the cause remanded. (44 Kan. 583) STATE V. BENNINGTON. It is error for a trial judge to give a portion of his instructions to the jury orally, though they are taken down by the stenographer at the time, and afterwards copied and delivered to the jury, on retiring, with the other instructions. (Syllabus by Strang, C.) ommissioners' decision. Appeal from district court, Barber county; C. W. ELLIS, Judge. Chester I. Long and E. C. Sample, for appellant. L. B. Kellogg, Atty. Gen., and R. A. Cameron, for the State. STRANG, C. This is an appeal from the judgment of the district court of Barber county. The appellant, who was there charged with grand larceny, was tried, convicted, and sentenced to three years in the penitentiary. He appeals to this court, and says the court below committed error in the trial of his case by giving a portion of its instructions to the jury orally. The bill of exceptions shows that the court gave some of its instructions to the jury in writing, and some of them orally, which latter were taken down at the time by the stenographer, and afterwards copied and delivered to the jury, on retiring, with the other instructions. Is this method of instructing a jury a compliance with section 236, Crim. Code, par. 5304, (Gen. St. 1889?) We think not. Paragraph 5304, so far as it relates to this question, reads as follows: "The judge must charge the jury in writing, and the charge shall be filed among the papers in the cause. The requirement of the statute seems to be imperative, and there is no reason why it should not be followed. It is argued by the attorney general that, so far as this case is concerned, the statute was substantially complied with, because the portions of the charge which were given to the jury orally were taken down by the stenographer, and afterwards copied and delivered to the jury, with the other instructions, before they retired to consider the case. The bill of exceptions shows that the portions of the charge given orally, and afterwards copied and delivered to the jury, were copied and delivered to the jury as they were about to retire. What purpose had the legislature in view in requiring the judge to charge the jury in writing? We think the legislature required the charge of the trial court to be given in writing, and filed among the papers in the case, for the following, among perhaps other, reasons: First. To preserve the instructions for use in appeals to this court, so as to facilitate the making of a correct and satisfactory bill of exceptions. Every one knows how difficult, if not impossible, it is for the judge himself to remember the exact language of his charge when, some time after the trial, a bill of exceptions is sought to be made, and that a change of a few words, or a slight change in the phraseology, might give to the charge a different color and meaning, and thus deprive the accused of his right to have the exact charge of the trial court reviewed in this court. Second. That the jury may have the instructions of the court, which are, so far as they are concerned, the law of the case, with them in the jury-room that they may refer to them, and thus settle among themselves any misapprehension of the language of the court, or difference of opinion, or want of recollection as to what the instructions were. Third. That the attorneys trying the cause may have the instructions in that form so that they may, with greater facility and accuracy, apply the law to the facts in their arguments to the jury. That this latter object was considered of some importance by the legislature is evidenced by the fact that in paragraph 5295, Gen. St. 1889, that body, in regulating the order of trial, provides that the court shall charge the jury before the counsel argue the case, changing the old rule in that regard. This change of the order of trial from the old rule, under which the instructions of the court were given to the jury after counsel had argued the case, was not without a purpose, and the object was to aid the counsel in the presentation of the case to the jury. Thus it will be seen that the legislature considered it a matter of importance that the instructions should not only be given in writing, but that the counsel in the case should have them before they commenced to argue the case. We think the attorneys in the case are entitled to the instructions, in the form in which the statute requires them to be given to the jury, before they commence their argument to the jury, and we think this right is a substantial one. It follows, therefore, that it is not a substantial compliance with the statute to give instructions orally, though they are at the time taken down by the reporter, and afterwards copied and handed to the jury with the rest of the instructions when they retire to consider the case. In Missouri, the court held, under a statute that requires the instructions to be given in writing, that it is error to instruct orally, even though the defendant consent that they shall be so given. Judge WAGNER, in promulgating the opinion of the court, uses the following pointed and forcible language: "The provisions of the law are express and positive. They were enacted for wise and beneficial purposes, and neither courts nor parties are allowed to substitute a different arrangement in their stead. Establish the practice pursued in the court below, and it will happen at the end of a wearisome trial, when the court and bar are anxious to terminate their labors, propositions will be made by the respective counsel to forego the work of drafting written instructions, and let the court deliver an oral charge. The jury are liable to misapprehend the language of the court; a full, perfect, and satisfactory bill of exceptions is unattainable; and thus a man's rights are invaded and frittered away through a violation of a law which was made for his protection. Public policy, and the uniform and explicit standard which should always prevail in the administration of criminal justice, demand that the statute should be literally construed, and rigidly adhered to and enforced.' State v. Cooper, 45 Mo. 64. The same rule prevails in California. People v. Ah Fong, 12 Cal. 345; People v. Woppner, 14 Cal. 437; People v. Demint, 8 Cal. 423. Also in Texas and Alabama. Clark v. State, 31 Tex. 574; Edgar v. State, 43 Ala. 312. Then we have in our own state the cases of State v. Potter, 15 Kan. 302; City of Atchison v. Jansen, 21 Kan. 560; and Rich v. Lappin, 43 Kan. 666, 23 Pac. Rep. 1038, cited by counsel for defendant. We do not consider it necessary to review the other errors assigned. It is recommended that the judgment of the district court be reversed, and cause sent back for a new trial. PER CURIAM. It is so ordered; all the justices concurring. (10 Mont. 154) ANDERSON V. PERKINS et al. (Supreme Court of Montana. Oct. 11, 1890.) PROMISSORY NOTES-APPLICATION OF PARTIAL PAYMENTS-SUFFICIENCY OF EVIDENCE. 1. A note provided for the payment of “interest at the rate of one and one half per cent. per month from date till maturity; and, if this note is not paid at maturity, we will pay the same rate of interest upon the principal sum until the same is fully paid and satisfied." Held, that these words did not require that payments made after maturity should be applied first to the discharge of the principal, and then to the interest, but they should be applied first to the interest due. 2. The complaint alleged that two payments on a note were made, respectively on April 13, 1885, and September 29, 1886. The answer denied that the first payment was made on April 13, 1885, and averred that it was made on April 11, 1885; and denied that the second payment was made on September 29, 1886, but averred that it was made September 8, 1886. Held, that these pleadings brought the question of dates to an issue, and no reply was required. 3. One of the defendants testified that he "remembered the circumstances of the payment of $250 as stated in the complaint on April 13, 1885. " Plaintiff testified that "the memoranda upon the note, 'Paid April 13, 1885, $250, on interest,' was made on that day. The memoranda of September 29, 1886, was made on that day, and is in my own handwriting. This was all the evidence on the point. The payments were indorsed on the note as made on the 13th and 29th respectively. Held, to be sufficient evidence to support a finding of payment on those dates. Appeal from district court, Gallatin county; FRANK G. HENRY, Judge. M.J. Liddell, for appellants. Armstrong & Hartman, for respondent. HARWOOD, J. The main question brought to this court for determination by this appeal relates to the computation of interest and the application of partial payments on a certain promissory note made and delivered by appellants to respondent, in the following terms: $1,250. Bozeman, M. T., February 6, 1883. On or before the first day of August, 1883, we, or either of us, promise to pay to the order of David Anderson twelve hundred and fifty dollars, for value received, negotiable and payable without defalcation or discount, with interest at the rate of one and one-half per cent. per month from date till maturity; and, if this note is not paid at maturity, we will pay the same rate of interest upon said principal sum until the sum is fully paid and satisfied. WILLIAM L. PERKINS. HOWARD STONE." It was admitted by plaintiff's complaint, and found by the trial court, that payments had been made on said note as follows: May 8, 1883, $250; April 13, 1885, $250; September 29, 1886, $673.36. The appellants contend that, under the terms of said note, if the same was not paid at or before maturity, they bad a right after maturity to apply their payments first upon the principal sum, and then upon the interest. If such payments were applied in that manner, the result would be that on the 20th day of February, 1890, prior to the commencement of this action, the defendants were indebted to the plaintiff in the sum of $875 only, as a balance of interest and principal due on said promissory note. Said sum was tendered to plaintiff on that date in full satisfaction of the balance due on said note, according to the construction of defendants. The plaintiff applied said payments first upon the interest accrued on said note to the date of payment, before crediting any portion of the payments to the principal sum; and, as a result of such application, the plaintiff claimed, and the trial court found, that defendants were indebted to the plaintiff in the sum of $1,256.52 at the time this action was commenced, April 25, 1890. In the absence of any conditions of the contract to the contrary, it is a well-established rule of law that, where partial payments are made on an interest-bearing obligation, the payment must be first applied to the liquidation of the interest accrued to the date of such payment, and the balance, if any, applied upon the principal. "The rule for casting interest," says Chancellor KENT, in State v. Jackson, 1 Johns. Ch. 13, "when partial payments have been made, is to apply the payment in the first place to the discharge of the interest then due. If the payment exceeds the interest, the surplus goes towads discharging the principal, and the subsequent interest is to be computed on the balance of principal remaining due; if the payment be less than the interest, the surplus of interest must not be taken to augment the principal; but interest continues on the former principal until the period when the payments, taken together, exceed the interest due, and the surplus is to be applied towards discharging the principal, and interest is to be computed on the balance, as aforesaid." This rule is generally adopted by modern authority, and in some states of the Union has been confirmed by statute. See 3 Rand. Com. Paper, § 1497; Story v. Livingston, 13 Pet. 359; Backus v. Minor, 3 Cal. 231; Estate of Den, 35 Cal. 692. There inay be exceptions to this rule involved by special terms of the contract, or by the parties adopting a different method in their transactions. Stoughton v. Lynch, 2 Johns. Ch. 209; Backus v. Minor, supra. The general rule, as to the application of partial payments upon interest-bearing obligations, above set forth, apparently is not questioned by counsel for appellants, but he insists that the terms of the note in question indicate that, in case the same was not paid at maturity, the defendants had the right after maturity to apply their partial payments upon the principal first, and secondly upon the interest. To sustain this theory of construction, counsel refers to the fact that the note provides for "interest at the rate of one and one-half per cent. per month from date till maturity; and, if this note is not paid at maturity, we will pay the same rate of interest upon said principal sum until the same is fully paid and satisfied." The counsel for appellants reasons that after maturity the interest and principal become two separate and distinct debts; and the debtor, therefore, had the right to require that his payments be appropriated. according to his desire. In our view of this promissory note, we find nothing, in its terms to justify the construction contended for by appellants. Its terms are so plain and definite that they become their own interpreter. As to interest, the makers declare the rate shall be 1% per cent. per month from date until maturity, and the same rate from maturity, until payment is finally made. In other words, the note declares that the principal shall bear the given rate of interest before and after maturity from date until payment. We find nothing in the language of this note to indicate that the maker may, by reason of its terms and conditions, require that partial payments thereon should be applied, either in one manner or another. It is further contended by appellants that at the time of making said note the parties thereto agreed that, in case the debt evidenced thereby was not paid at maturity, the maker might thereafter apply his payments-First, upon the prin cipal; and, secondly, upon the interest. The record shows that defendants introduced evidence on the trial in support of such an alleged agreement, and the plaintiff also introduced evidence in rebuttal thereof. The court found that the partial payments were made on the interest and principal of said note, and allowed said partial payments to be first devoted to the liquidation of accrued interest; and such finding is assigned as error. We fail to discover any error in the action of the court on this point, unless it be in allowing the defendant to introduce any evidence as to such an alleged agreement. The law will not permit a contemporane. ous parol agreement to be set up to contradict or vary the terms of an agreement reduced to writing, except under certain circumstances, not involved here. Section 628, Code Civ. Proc.; Fisher v. Briscoe, ante, 30. It may be further observed in this connection that this court has repeatedly decided that, where the evidence is conflicting, the finding of the court, or verdict of the jury, will not be disturbed, unless some other grounds are shown therefor. The further and last assignment of error to be determined relates to a controversy as to the date of the last two payments on said note. The parties agree as to the date of the first payment. The plaintiff alleges the last two payments to have been made respectively on the 13th of April, 1885, and the 29th day of September, 1886. The defendants' answer says: "They deny that they made any payment on said note on the 13th of April, 1885, but they admit and aver that they did pay the plaintiff $250 on the 11th day of April, 1885;" and further, "they deny that they paid plaintiff the sum of $673.36 on said note on the 29th of September, 1886, but they aver and admit that they did make the plaintiff a payment of $673.36 on the 8th of September, 1886." Counsel for appellants contends that, inasmuch as the plaintiff in his replication made no reference to said denials and admissions as to the date of said payments, the allegations of the answer as to such dates are to be taken as admitted to be true. We find in these denials of one date, and the averment of another, no matter which demands a further denial by plaintiff. In substance, the plaintiff alleged the dates of said payments. The tru dates of payment are material in reference to casting interest. In substance, the defendants denied that the dates stated by plaintiff were the true dates of payment, and alleged, incidentally to such denials, dates which the defendants claimed were the true dates of payment. By these allegations and denials an issue was formed, which could not be made more certain by the plaintiff denying the dates named by defendants, or reasserting the dates which he had before alleged as the true dates of payment. Upon this issue, evidence was necessary to ascertain the correct dates of said payments. The evidence, as disclosed by the record, is meager and obscure as to the disputed dates of payment. The record shows that the defendants introduced no evidence on this point, except that W. L. Perkins, one of the defendants, testified that he remembered "the circumstances of the payment of $250 as stated in the complaint on the 13th of April, 1885." On this point Anderson, the plaintiff, testifies that the memoranda upon the note, 'Paid April 13, 1885, $250, on interest,' was made on that day. The memoranda of September 29, 1886, was made on that day, and is in my handwriting." There is no other evidence on that point. The import of it all seems to be in favor of the allegations of the complaint, and there is no evidence to the contrary. The court found that the allegations of the complaint are true, and, being supported by all the evidence introduced on the point under discussion, we do not think the finding as to the dates of payment should be disturbed. Judgment affirmed, with costs. BLAKE, C. J., and DE WITT, J., concur. (10 Mont. 134) SULLIVAN v. CITY OF HELENA. (Supreme Court of Montana. Oct. 6, 1890.) DEFECTIVE STREET-PERSONAL INJURIES-PRACTICE-NEW TRIAL. 1. The city of Helena, which was chartered by the territory of Montana, passed an ordinance expressly assuming for itself "the care and responsibility of streets, avenues, and alleys," and thereafter issued a permit to certain private persons to make an excavation in a street, by the negligent performance whereof, and while Montana was still a territory, plaintiff was injured. Held, that the city was liable in damages therefor, since, in 1862, and prior to the passage of such ordinance, the principle of municipal liability in such cases was established by the supreme court of the United States in the case of Nebraska City v Campbell, 2 Black, 590, which arose in the territory of Nebraska, and was therefore binding upon the courts of this territory at the time of the injury. * * * 2. Under Code Civil Proc. Mont. § 298, providing that "the party intending to move for a new trial must, within 10 days after the verdict, file with the clerk, and serve upon the adverse party, a notice of his intention, designating the grounds upon which the motion will be made," where such notice has been filed within 10 days, an additional notice and affidavit specifying the further ground of newly-discovered evidence cannot be served and filed after the expiration of the 10 days. Appeal from district court, Lewis and Clarke county; WILLIAM H. HUNT, Judge. Robert B. Smith, for appellant. Kinsley & Knowles, for respondent. BLAKE, C. J. The respondent recovered a judgment for damages for personal injuries which he sustained by reason of an excavation in a street within the city of Helena. The motion of the appellant for a new trial was overruled, and this action of the court below must be examined. A question of practice will be considered before we inquire into the merits of the case. The appellant filed, May 21, 1890, a notice of its intention to move for a new trial, and the motion and statement therefor were filed June 30, 1890. Another notice was served June 25, 1890, upon the respondent stating "that, in addition to the causes specified in the notice of motion for a new trial heretofore given in this cause, said motion will also be based upon the affidavit of newly-discovered evidence |