the text-books, we unhesitatingly declare that the better reasoning supports the position here taken.

In Dair v. U. S., 16 Wall. 1, Justice DAVIS, in commenting upon the identical proposition here under consideration, says: "It is easy to see, if the obligors are at liberty, when litigation arises and loss is likely to fall upon them, to set up a condition unknown to the person whose duty it was to take the bond, and which is unjust in its result, that the difficulties of procuring satisfactory indemnity from those who are required by law to give it will be greatly increased."

In State v. Peck, 53 Me. 284, BARROWS, J., has collected and distinguished the cases on this subject in a most satisfactory manner, and we might consistently rest our conclusion upon that case. In the conclusion of the opinion he says: "If there are cases that militate against the views here expressed, we are satisfied that they savor more of the growing looseness of commercial morality than of adherence to wholesome legal principles."

If the doctrine of estoppel would not apply here, might not the inquiry well be asked, to what state of facts could it apply? Here the surety who defends this action had invested the principal with an apparent authority to deliver the bond, and there was nothing on the face of the bond, or in any of the attending circumstances, to apprise the official who accepted it that there was any secret agreement which should preclude the acceptance of the bond. This surety alone is certainly in fault, as but for this unwarranted trust in Ayres he would never have had it in his power to occasion the loss which the obligee of this bond must suffer if the defense made is successful.

There is no reason why this opinion should be extended by further reviewing the authorities. The work has been done, and thoroughly done, in several well considered cases in Maine, Indiana, Kentucky, Missouri, Illinois, North Carolina, Virginia, Louisiana, and Michigan. Hunt v. State, 53 Ind. 321; Millett v. Parker, 2 Metc. (Ky.) 608; Nash v. Fugate, 24 Grat. 202; State v. Potter, 63 Mo. 212; State v.

Peck, supra; Chalaron v. McFarlane, 9 La. 227; Smith v. Peoria Co., 59 Ill. 412.

These authorities satisfy us that the conclusion of the court in sustaining the demurrer to the answer must be affirmed. The next question for our consideration is as to the form of the judgment. The judgment rendered is against the estate of Isaac Cooper for the sum of $600, the penalty of the bond." The court finds that the estate of Isaac Cooper is indebted to the plaintiff in the sum of $600, the penalty of the appeal-bond sued on herein, and that the damage sustained by the plaintiff herein amounts to the sum of $346.78. It is therefore by the court ordered and adjudged that the plaintiffs, Frank De Mainville and W. H. Brisbane, do have and recover, of and from the said defendant, the estate of Isaac Cooper, deceased, the sum of $600, the penalty of the bond aforesaid, together with their costs in this behalf expended, thereafter to be taxed, and that execution issue therefor." This was clearly error. The judgment should have been for the sum named as damages, payable out of the estate of the deceased in due course of administration. Gen. St., p. 1055, § 3618, provides that," upon a recovery of judgment*** against any executor or administrator, or a demand due from his testator or intestate, no execution shall be issued thereon, but the party recovering said judgment shall cause a transcript of the judgment entry to be filed in the county court, and the same shall be classed and paid as other demands are."

This question is directly passed upon in Mattison v. Childs, 5 Colo. 78. For this error the judgment must be reversed, and the cause remanded, with instructions to enter judg ment for amount of damage, in conformity with this opinion.

Reversed.

JOHN A. LOMAX AND CLARENCE L. GOWELL, PLAINTIFFS IN ERROR, V. IRVING BESLEY, DEFENDANT IN ERROR.

FORECLOSURE OF MINER'S LIEN.-Where the record of an action instituted to foreclose a miner's lien fails to show the issuance of a summons, and it appears therefrom that the defendant is a nonresident of the state, and that publication was not made as required by law, the judgment will be set aside.

Error to County Court of Park County.

Messrs. BAILEY & WILKIN and Mr. W. H. MALONE, for plaintiffs in error.

Mr. W. H. NASH and Mr. R. D. THOMPSON, for defendant in error.

RICHMOND, P. J. In January, 1883, defendant in error, Irving Besley, filed in the office of the county clerk of Park county, a notice of a claim amounting to $340.60 against plaintiffs in error, John A. Lomax and Clarence L. Gowell, for work and labor done and moneys expended on the Coney lode in Mosquito Mining District, property of the plaintiffs in error, and by said notice claimed a lien upon the mine to the amount of his claim. July 4, 1883, he instituted an action to enforce the lien, and on the same day filed an affidavit in support of an application for service of summons by publication.

Thereafter the court made the following order: "It is hereby ordered by the court that personal service cannot be had; that service be by publication in Fairplay Flume. Ordered, July, 1883. V. G. HOLLIDAY, Judge."

August 9th judgment was rendered against the plaintiffs in error for the sum of $449.31 and costs. To reverse this judgment this writ is prosecuted.

The record fails to show the issuance of summons, nor does

it appear that publication was made as required by law, no affidavit to that effect having been filed.

Whether service could be obtained by publication in this class of cases we need not here decide as the record fails to show compliance with the requirements of the code where service may be obtained by publication. Without service of some kind the judgment should not have been rendered, and so rendered was absolutely void.

The judgment is reversed and cause remanded.

Reversed.

MAX MELSHEIMER, APPELLANT, V. WILLIAM SULLIVAN,

APPELLEE.

The

1. KEEPING VICIOUS ANIMALS RESPONSIBILITY OF OWNER. owner of a vicious dog, knowing of his dangerous propensities, is bound to keep him secure at his peril. If any one, without negligence on his part, is injured by the animal the owner is liable in an action for damages, and he cannot exonerate himself by showing that he used care in keeping and restraining the animal, for he has assumed the risk of keeping him securely. 2. VALID JUDGMENT FOR INJURIES BY VICIOUS ANIMAL.-A judgment for damages against the owner of a vicious dog, in favor of a person whom he has injured, cannot be disturbed where it appears from the record that the dog was vicious and in the habit of biting mankind, that the owner knew it, and that the dog bit and injured the plaintiff without fault on his part.

Appeal from District Court of Arapahoe County.

Messrs. BROWN & PUTNAM, for appellant.

Mr. W. B. FELKER, for appellee.

RICHMOND, P. J. Appellee herein brought this action to recover for injuries received from being bitten and otherwise

injured by a dog kept by the appellant, and which, it is alleged, appellant knew was accustomed to attack and bite mankind.

Appellant answered, specifically denying the allegations in the complaint, and as an additional defense claimed that the injury received was the result of appellee's negligence. The record discloses the fact to be that appellant is the owner of a brewery, and in the alley adjoining the brewery, part of the premises belonging to him, he kept a dog chained in a kennel near the entrance to the cellar where he had stored his malt; that the length of the chain was between five and eight feet; that appellee, a policeman, was in pursuit of a suspicious character, and, believing that he had entered this alley, went into it hunting for the person, and that while so engaged he, without seeing the dog or the kennel, or having any knowledge of the fact that the dog was there, advanced near enough to the kennel to be bitten by the dog; that the alley, though private, was easy of access at one end, and frequented by employees of appellant and others.

The ownership of the dog and his ferocity were confessed at the trial, and are admitted in the argument here. It is also shown that appellee received considerable medical attention for a period of 9 days, and that he was unable to do any work of any consequence for a period of 16 days. The disposition of the dog to bite mankind was not only established by the admissions of the appellant, but also by evidence of other witnesses, and especially by his former master. The appellant testified that he kept the dog chained in the same place at all times, never suffered him to go at large, and kept him for the purpose of protecting his premises from strangers and tramps; that if a stranger should approach the kennel the dog would certainly bite him.

Trial by jury. Verdict for plaintiff in the sum of $800. On motion for a new trial, the court requested plaintiff to remit $300, which was done, and judgment on the verdict. for $500 was entered. To reverse this judgment this appeal is prosecuted.