that by the terms of the deed you would have become liable to pay the purchase money that Richner was to pay, and whether you ever did accept such deed. A. Again I say I do not now remember, nor can I now recall, nor have I ever been able so to recall or remember, the slightest impression that I ever then, or at any subsequent time, received from Richner the deed conveying said lots to me, and when he wrote me, and asked me to reconvey, I believed then, and do now, that he was mistaken when he said that he had made the deed and sent it to me; and of course I could not accept a thing that, to me, had no existence, and had I, at that time, received the deed with the condition of paying the balance of the purchase money as therein named, I never would have accepted such deed had one been tendered me under any circumstances." When there is conflict between the testimony of different witnesses, and especially when the same witness makes inconsistent statements, it often becomes necessary to consider the undisputed facts and circumstances connected with the matters to which the conflicting and inconsistent statements relate, in order to arrive at the truth; and this is the more necessary when the tribunal charged with the responsibility of weighing the evidence and determining the issues does not see or hear the living witnesses. The accuracy and value of a witness' testimony may often be determined by comparing his statements with known facts and circumstances pertaining to the matter or transaction under investigation. Truth is consistent; error is inconsistent. The real facts and circumstances of every transaction will always be found consistent with each other when the whole truth is known. As expressed by an eminent author: "All facts and circumstances which have really happened were perfectly consistent with each other, for they did actually so consist." Starkie, Ev. *842. Truth appears clearer the more it is examined in the light of its surroundings. Truth courts the fullest investigation. Error shrinks from investigation because its surroundings reveal its inconsistencies. The untruthful witness seeks refuge in the obscurity of general assertions; he avoids the statement of particulars. What are the undisputed facts and circumstances pertaining to this transaction? The more important are as follows: In 1879, Richner entered into a contract with Bush for the purchase of the property in controversy, the deed therefor being held as an escrow by a third party until the purchase money should be paid. Before Richner acquired the legal title to the property,-before he paid for or took possession of the same,— he executed and recorded the quitclaim deed of the property to Van Natta. This deed was executed and recorded without any negotiation, contract, agreement, or understanding whatever in respect to the matter between Richner and Van Natta. No consid eration was paid, or agreed to be paid, for the property by Van Natta at the time the deed was executed, or afterwards. Thus far there is no dispute, though Van Natta testifies that Richner owed him about $200 when the deed was executed. Richner denies owing Van Natta anything at that time, and says he executed the deed because a man in Kansas was asserting a claim against him. In respect to this conflict it is sufficient to say that there is no evidence of any agreement between Richner and Van Natta that this deed was delivered or accepted, or was to be delivered or accepted, on account of the supposed indebtedness of Richner to Van Natta. Again, the undisputed facts are that, about a month after executing the quitclaim deed to Van Natta, Richner took possession of the property, and in February, 1880, sold and conveyed the same, by warranty deed, to appellant, Rittmaster, and the Rachofskys, they having no actual knowledge of the deed to Van Natta. They paid the sum of $5,000 cash for the property, part of which sum was paid to Bush, as the balance of the purchase money, and the residue to Richner. The escrow deed from Bush to Richner, and also the deed from Richner to Rittmaster and the Rachofskys, were thereupon delivered, accepted, and recorded, and the latter parties went into possession of the property. They held the property more than seven years before any claim to the premises was asserted under the Richner-Van Natta quitclaim deed. During that time, Rittmaster and the Rachofskys occupied the property, kept it in repair, redeemed it from the taxes of 1880, and paid the taxes on it for the years 1881, 1882, 1883, 1884, and 1885. What did Van Natta do during all this time? He neither paid, nor offered to pay, the balance of the purchase money to Bush, though the quitclaim deed contained an express covenant that he should pay the same; and it is conceded that, by an unqualified acceptance of the deed, he would have become obligated to make such payment. Van Natta neither paid, nor offered to pay, any taxes upon the property at any time. He never collected, or attempted to collect, any rents therefrom. He never asserted any title or claim to the property, never inquired after it, and did not visit Leadville during all of said time. He has never produced the quitclaim deed nor any letter from Richner advising him about the property. Not until May, 1887, when he was visited by Joy, did he give the quitclaim deed of the property to Bush. It is admitted that Joy paid Van Natta the sum of $100, only, for the quitclaim deed, and that this deed was procured to strengthen a claim to the property which Joy was attempting to maintain, based upon a tax title. The tax-title suit was afterwards determined in the United States circuit court at Denver in favor of Rittmaster. Bush testified that he procured the deed from Van Natta for the purpose of perfect ing the title of Joy. The following is from the deposition of Bush: "Q. What, if any, consideration was paid by you to Van Natta for the deed referred to, and what consideration, if any, was paid by Brisbane to you for said lots? A. There was no consideration from me to Van Natta. I made the deed to Brisbane at the request of C. C. Joy, to whom I was under many obligations for work done." There is no other evidence relating to the interest of appellee in the property. The equitable cross complaint of Rittmaster alleges that the deed from Bush to Brisbane was without consideration. Appellee's reply alleges that his deed from Bush was "based upon and supported by a valuable consideration," but the amount of the consideration is not named, as good equity pleading requires. The reply was not verified. Besides, appellee did not testify in the case, and no proof was offered in support of his averment that there was a valuable consideration for the deed. Under the circumstances, the conclusion must be that the consideration was no more than nominal. 3. A deed must be delivered before it becomes operative as a conveyance, and, in general, acceptance is essential to complete the delivery and pass the title. In respect to persons sui juris, acceptance as well as delivery is a matter of intention. Intention may be manifested by some act or declaration, or it may be presumed from circumstances, but will not be lightly presumed, where the grant imposes a burden or obligation upon the grantee, and the recording of a deed by the grantor without the direction or knowledge of the grantee is not, of itself, to be regarded as evidence of acceptance. Van Natta, as he testifies, was a practicing attorney when the transactions under consideration occurred. He must be presumed to have been conversant with the law. Actions speak louder than words; so, sometimes, does inaction; and silence is often stronger than speech. In 1879, when Richner executed the quitclaim deed to Van Natta, and in 1880, when he executed the warranty deed to Rittmaster and the Rachofskys, Leadville was a prosperous, growing mining town. Its reputation as such was widespread. There was a rapid rise in the price of real estate during that period. It appears that the property in controversy, which was bought in July, 1879, for $1,300, was sold in February, 1880, for $5,000. If Van Natta received a deed to this Leadville property in October or November, 1879,-if he accepted or intended to accept such deed, -why did he not do something to manifest his acceptance? It is impossible to believe that he would have done nothing in respect to the property during the succeeding seven years and more, if he considered he had acquired a good title to it. Even his execu tion of the quitclaim deed to Bush, at the instance of Joy, for the sum of $100, indicates the relinquishment of mere color of title,the removal of a cloud from title,-rather than the conveyance of any real title. It does not indicate that he had previously received or accepted the Richner deed. Indeed, Van Natta's whole conduct, as well as his positive testimony, indicates that he never received nor heard of the deed purporting to convey to him Richner's interest in the property, for years and years after the same was executed and recorded. Upon a careful review of the whole record, our finding must be that the issue on the part of appellee is not sustained by a preponderance of the evidence. On the contrary, our conclusion, from the whole evidence and circumstances of the case, is that the quitclaim deed executed by Richner to Van Natta was never delivered and accepted. It is probable that Richner never intended to deliver it, and that he recorded it simply as a blind to his creditors; but, even if it was sent by Richner, we are satisfied that it was never received, and never accepted, by Van Natta. This conclusion is as well sustained by the direct testimony as the opposite theory. It accords with the undisputed facts and circumstances of the case. It is consistent with common experience, and in harmony with the motives which ordinarily influence and control human conduct. Moreover, this conclusion protects those who purchased the property in good faith for a large consideration, and who have occupied and improved the same, and paid the taxes thereon, for years and years. It upholds the title of bona fide purchasers against a claim founded upon little or no consideration, and asserted by those who have done little or nothing in respect to the property. In short, the conclusion subserves the ends of justice and equity, and prevents wrong and injury. The judgment of the district court is reversed, and the cause remanded, with directions to render judgment in favor of defendant, Rittmaster. Reversed. GODDARD, J., was not present at the argument of this cause, and did not participate in the decision. (19 Colo. 385 RICHNER v. BRISBANE,1 (Supreme Court of Colorado. Feb. 5, 1894.) APPEAL-SCOPE of Review-EJECTMENT-BURDEN OF PROOF-Delivery of Deed. The decision in Rittmaster v. Brisbane, 35 Pac. 736, was followed in this case, the law and facts involved being the same. (Syllabus by the Court.) Appeal from district court, Lake county. Action by W. H. Brisbane against Herman Richner for the possession of real property. There was judgment for plaintiff, and defendant appeals. Reversed. A. F. Gunnell, for appellant, Blake & Sayre, for appellee. PER CURIAM. The title of appellee in this case depended upon the same deeds of conveyance and other evidence as did the title of appellee in the case of Rittmaster v. 1 Rehearing denied 1. In the trial of a civil case by jury before a justice of the peace, the jury may consist of any number of jurors the parties agree upon, or accept without objecting to the number. 2. Where the property of a third person is attached under a writ issued by a justice of the peace, the owner may intervene in pursuance of the statute, and have his property released, even though its value exceeds $300, and a verdict and judgment in his favor in such proceeding will be valid, provided the damages do not exceed the justice's jurisdiction. 3. A justice of the peace under the laws of this state has no authority to entertain or grant a motion in arrest of judgment. The jurisdiction of the justice is purely statutory; and when a verdict is rendered by a jury, if the verdict is within the jurisdiction of the justice, it is his duty to enter judgment upon it. His duty in that behalf is ministerial, not judicial; and if he assumes to set aside the verdict, or to render judgment contrary to the verdict, such proceeding may be regarded as a nullity. 4. A justice of the peace may be compelled by writ of mandamus to enter judgment when the proceedings in the case have reached such stage that there is nothing to be done but the clerical work of entering the judgment. (Syllabus by the Court.) Error to district court, Rio Grande county. Action by John L. Corthell and another, as Corthell Bros., against Marvin Mead, a justice of the peace, for mandamus. The writ was denied, and plaintiff's bring error. versed. Re The other facts fully appear in the following statement by ELLIOTT, J.: Petition for writ of mandamus to compel respondent, as justice of the peace, to enter judgment in accordance with the verdict rendered by a jury in a certain proceeding before said justice. The district court denied the writ. Petitioners seek a reversal of the district court judgment by writ of error from this court. The facts out of which the application for mandamus arises are, in substance, as follows: Certain persons, doing business as copartners under the firm name of the La Jara Hardware Company, brought suit before a justice of the peace against one E. S. Corthell. A writ of attachment was issued, and a stock of goods was levied on of the value of $477.67, as stated in the return of the constable. Before the trial of the attachment, John L. and Elmer L. Corthell, doing business as Corthell Bros., filed affidavits before the justice, claiming the attached property as their own. A trial of the right of property was had by a jury of three, no greater number being demanded by either party. The jury, after hearing the evidence, returned a verdict as follows: "We, the jury, find judgment in favor for the Corthell Brothers, and assess the damages at $300." The justice of the peace received and recorded the verdict, and discharged the jury. Three days afterwards, upon motion of the plaintiffs in the attachment suit, (defendants in the trial of the right of property,) the justice made an order purporting to arrest the judgment. He also refused to enter judg ment upon the verdict of the jury, and dismissed the case; that is, the proceeding for the trial of the right of property. In the main case, plaintiff's recovered judgment against the defendant for the full amount of their demand,-$105.60. C. M. Corlett, for plaintiffs in error. Ira J. Bloomfield, for defendant in error. ELLIOTT, J., (after stating the facts.) Plaintiffs in error (claimants of the attached property, and petitioners for the writ of mandamus) contend that they were and are entitled to have judgment rendered in the justice's court in accordance with the ver dict of the jury. They insist that the action of the justice of the peace in assuming to arrest the judgment upon the verdict, and in dismissing their claim to the property, was and is void; that his refusal to enter judg ment in their favor was the refusal to perform an act which the law specially enjoins upon him as a duty resulting from his office; and that they have no plain, speedy, and adequate remedy in the ordinary course of law, etc. Defendant in error (the justice of the peace, and respondent in this mandamus proceeding) claims that the trial of the right of property was a nullity; that a jury of three was not a lawful jury; that, as justice of the peace, he had no jurisdiction of the attached property, the value thereof being in excess of $300; that petitioners had a remedy by ap peal from the judgment dismissing their claim to the property; and that mandamus is not a proper remedy, under the facts and circumstances of the case. 1. Was the trial of the right of property by a jury of three a nullity? Trial by jury in civil cases is not guarantied by the constitution of this state. In an attachment case before a justice of the peace, if any person other than the defendant claims the attached property, the statute provides for a "trial of the right of property." Such trial is placed upon the same footing as other trials; that is, either party (the plaintiff or the claimant) may demand a jury trial, or the trial may be by the justice. Gen. St. §§ 1958-1962, 2011. Formerly, section 1958 stated a jury of six as the minimum number, but, as amended, (Sess. Laws 1889, p. 221,) it states three as the minimum number. Conceding that this amendment does not affect section 1959, we are of opinion that neither section is so far mandatory in respect to the number of jurors as to vitiate a trial in a civil case by any number that the parties may agree upon, or accept without objecting to the number. The answer of respondents sets forth a copy of his docket entries, showing that, at the time appointed for the trial of the right of property, the parties (claimants and plaintiffs) appeared with their attorneys, respectively, and thereupon the claimants demanded a jury of three. Plaintiffs made no objection to this demand. A venire was accordingly issued, and three persons were summoned as jurors, and sworn without objection to try the case. After the jury was sworn, not before, the attorney for plaintiffs "objected to any jury in the case." The objection was to any jury, not the jury. No objection was made on account of the number of jurors, either before or during the trial; nor was any greater number demanded by either party at any time. Under such circumstances, both parties must be held to have accepted the jury composed of three persons. Plaintiffs, having had due notice and opportunity, should have objected to the number of jurors, if at all, before the claimants were put to the expense of summoning, impaneling, and swearing the jury. Not having done so, they must be held to have voluntarily acquiesced in the usual jury of three, as provided by amended section 1958, and to have waived their right to insist upon a jury of six, under section 1959. In civil cases, where private interests only are involved, it is well settled that a party may waive his statutory rights. Proff. Jury Trials, § 110; Thomp. & M. Juries, § 8 et seq.; Irwin v. Crook, 17 Colo. 16, 28 Pac. 549. The case of Moore v. State, 72 Ind. 358, cited by counsel for respondent, is not in point. It relates to a criminal case, in which a verdict rendered by a jury of six persons was held to be a nullity. In other respects the decision fully confirms the views hereafter expressed in this opinion. 2. Was the trial of the right of property a nullity, and was the verdict void by reason of the value of the attached property? The value of the attached property was stated by the constable in his return to be $477.67. The levy may have been somewhat excessive; but an officer must, as a rule, levy upon property of somewhat greater value than the amount stated in his writ, else sufficient money may not be realized on forced sale to satisfy the judgment to be rendered, with costs. If a justice's writ should specify $300 as the amount of a plaintiff's demand, and the officer should levy upon property in excess of that sum, it is not contended that the levy would be invalid because of such excess. Why, then, may not a third party claim such attached property, and have his claim thereto tried and determined as provided by the statute? Must he necessarily be driven to an action by replevin? To hold that the claimant may not avail himself of the special statutory proceeding is to hold that the justice of the peace has jurisdiction over property in excess of $300 for the purpose of satisfying the claim of the attaching creditor, but not for the purpose of releasing such property, and restoring it to the rightful owner in case it has been wrongfully attached. Thornily v. Pierce, 10 Colo. 250, 15 Pac. 335, is cited by counsel for respondent. That was an action of replevin, brought before a justice of the peace. On appeal in the county court, the property was found to be of the value of $365. The plaintiff did not remit, nor offer to remit, the excess over $300, and judgment was rendered for the full amount. On error, this court held that the county court should have dismissed the suit, the value of the property in controversy being in excess of the jurisdiction of the court where the action was originally brought. There is a distinction between a suit in replevin and a trial of the right of property upon a claim made by a third party in an attachment case. A replevin suit is an original proceeding. The plaintiff sues out the writ, and causes the property to be taken in custodia legis. He invokes the jurisdiction of the court in a matter wherein the title to the property, and the value thereof, are of the very gist of the controversy. In such an action the law limiting the jurisdiction of justices of the peace to $300 is particularly applicable. But the filing of an affidavit claiming attached property by a third party is not an original proceeding. The property is already within the jurisdiction of the court, in a suit of which the justice presumably has jurisdiction. The property is liable, as we have seen, to exceed the value of $300; but the claimant does not sue for the value of the property. He contests the validity of the levy by claiming the property, or a part thereof, as his own, and asks to have such claim determined. If the claimant succeeds, he gets the property released from the levy, and recovers judgment for the damages occasioned by the levy. The proceeding is incidental and collateral to the main suit. It is an ancillary proceeding provided by statute, to which the claimant may resort in lieu of a direct action. The statutory proceeding before the justice of the peace may result in the release of attached property of greater value than $300, though it is probable that damages could not be legally recovered in excess of that sum. In this case the damages were assessed at $300 only. This court has noticed proceedings of this kind, and has pointed out their advantages over ordinary civil actions, but has not decided the precise question now presented. The supreme court of Missouri has, however, held that the claimant may by this proceeding recover attached property in a justice's court, even if the value be in excess of the jurisdiction of such court in a direct proceeding. Mills v. Thompson, 61 Mo. 415; Kinnear v. Flanders, 17 Colo, 13, 28 Pac. 327; Schluter v. Jacobs, 10 Colo. 451, 15 Pac. 813; Brasher v. Holtz, 12 Colo. 203, 20 Pac. 616; Cornforth v. Maguire, 12 Colo. 433, 21 Pac. 191. We feel constrained to hold that, where the property of a third person is attached under a writ issued by a justice of the peace, the owner may intervene in pursuance of the statute, and have his property released, even though its value exceeds $300, and that a verdict and judgment in his favor in such proceeding will be valid, provided the damages do not exceed the justice's jurisdiction. 3. It is scarcely necessary to say that å justice of the peace, under the laws of this state, has no authority to entertain or grant a motion in arrest of judgment. Motions of that kind are for courts of record having common-law as well as statutory jurisdiction. The judges of superior courts of record are presumed to be learned in the law, and hence capable of entertaining and disposing of such matters in furtherance of jus-. tice. The jurisdiction of a justice of the peace is purely statutory. In respect to jury trials the statute provides: "The jury, when impaneled, shall be sworn by the justice to try the cause according to the evidence, and the justice shall enter judgment upon their verdict according to the finding thereof." See Sess. Laws 1889, p. 221, amending Gen. St. § 1958. This provision has existed without change in this jurisdiction for more than a quarter of a century. See Rev. St. 1868, p. 402. When a cause has been tried, and the verdict returned by a jury, in a justice's court, the verdict being within the jurisdiction of such court, the justice has no discretion in the premises. It is his duty to enter judgment upon the verdict. He is to enter the judgment, not render it. His duty in that behalf is ministerial, not judicial. The judgment being entered according to the verdict, the aggrieved party may appeal; but the justice has no authority to render any judgment contrary to the verdict, and, if he does so, such judgment may be regarded as a nullity. Any other doctrine would involve proceedings in justices' courts in troublesome, expensive, and vexatious delays, and would greatly hinder and embarrass the administration of justice. Freem. Judgm. § 53a; High, Extr. Rem. §§ 235-242. verdict in this case being in favor of the claimants, they were entitled to have judgment entered to the effect that the property be released from the attachment, and that they recover of plaintiffs the damages assessed, together with costs. In Schluter v. Jacobs, supra, it is held that, where the claimant succeeds in establishing his claim to the attached property, the attaching creditor must be held liable for the damages occasioned by the levy, on the ground that, by contesting the right of property asserted by the claimant, the attaching creditor ratifies the act of the officer in levying upon the property. The 4. Did petitioners have a plain, speedy, and adequate remedy, by the ordinary course of law, for the action of the justice in refusing to enter judgment upon their verdict? It is urged that their remedy was by appeal, but this view is not sustained by sound reason, nor by the weight of authority. As we have seen, the justice, in assuming to arrest judgment upon the verdict, and in dismissing the case against claimants, acted wholly without authority. Even if the claimants could have appealed from the entry of such orders, such a remedy would not have been adequate. They had tried and won their cause, and were entitled to the fruits of their victory. Why should they be required unnecessarily to assume the expense, trouble, and hazard of another trial? Judgment should have been entered upon the verdict; and then the burden of an appeal, if any had been taken, would have fallen' upon the plaintiffs. The taking of an appeal is a matter of some inconvenience and hardship. It involves the giving of a bond with surety, and the advancement of costs, as well as the hazard of another trial. A remedy, therefore, which required the claimants, rather than the plaintiffs, to take an appeal, was not adequate. Besides, if judgment had been entered for the claimants, it is not certain that any appeal would have been taken. Furthermore, when a writ of mandamus is asked for against an officer, to compel him to perform a duty resulting from his office, which duty he has wrongfully neglected and refused to perform, to the manifest injury of another, it does not come with very good grace for him to plead that the injured party has another remedy, and certainly not unless such other remedy is fully adequate. The authorities are clear to the effect that a justice of the peace may be compelled by mandamus to enter judgment when the proceedings in a case have reached such stage that there is nothing to be done but the clerical work of entering the judgment; and this remedy has also been applied to courts of record, under certain circumstances. The following are some of the many authorities cited by counsel, and considered by the court, as bearing upon the various questions involved in this controversy, in addition to those heretofore cited: Forman v. Murphy, 3 N. J. Law, 577; Felter v. Mulliner, 2 Johns. 181; Matthews v. Houghton, 11 Me. 377; Smith v. Moore, 38 Conn. 105; Lloyd v. Brinck, 35 Tex. 1; Insurance Co. v. Wilson's Heirs, 8 Pet. 292; Overall v. Pero, 7 Mich. 315; Lynch v. Kelly, 41 Cal. 232. We recognize the doctrine that the writ of mandamus cannot properly be employed to control official discretion, nor permitted to usurp the office of a writ of error. This court has repeatedly expressed such views. See Union Colony v. Elliott, 5 Colo. 371; also People v. District Court, 14 Colo. 396, 24 Pac. 260. But see People v. Graham, 16 Colo. 347, 26 Pac. |