to demand a trial immediately, he must wait until a regular term of the court having jurisdiction of the offense with which he is charged, until an indictment is found and presented, and until the prosecution has had a reasonable time to prepare for the trial. Nor does a speedy trial mean a trial immediately upon the presentation of the indictment; it simply means that the trial shall take place as soon as possible after the indictment is found, without depriving the prosecution of a reasonable time for preparation. The law is the embodiment of reason and good sense; hence, while it secures to every person accused of crime the right to have such charge speedily determined by a competent jury, it does not exact impossibilities, extraordinary effort or exertion from the courts; nor does it contemplate that the right of a speedy trial, which is guaranteed to the prisoner, shall operate to deprive the government of a reasonable opportunity of fairly prosecuting criminals. Section 582 of the criminal practice act of the state of Nevada indicates what may be understood by a speedy trial. That section declares that if a defendant, indicted for a public offense, whose trial has not been postponed upon his application, be not brought to trial at the next term of the court at which the indictment is triable after the same is found, the court shall order the indictment to be dismissed unless good cause to the contrary be shown." In the case at bar, the prisoner cannot complain that the court has not endeavored to give him an immediate trial; the court has declared its willingness to hold a special session for that purpose, while not considering it a hardship on the prisoner that he should await his trial at the regular term of the court on the second Monday of May next. Under the provisions of the Nevada statute the regular method of procedure is to bring the prisoner to trial at the next regular term of the court after the indictment is found, and this is undoubte lly the usual method of procedure. In this case, however, the court has declared its willingness to hold a special session, but finds it impossible even by so doing to give the prisoner a fair and impartial trial, for the reason that the marshal of this district is without funds to transport witnesses, and has no means of transportation at his command; therefore the prisoner must await his trial at the regular term of the court in May next, by which time no doubt the marshal will have the necessary funds and means at his command to enforce the attendance of witnesses, and carry out the orders of the court; and in my judgment this is not in any way a hardship on the prisoner. If, on the other hand, it could properly be claimed that this prisoner was being kept in confinement, awaiting the organization of this territory, he might most properly petition to be admitted to bail; but such is not the case. He is simply now in prison, awaiting the next regular term of the court; and I do not consider it a har i ship upon him to be kept in confinement until that time, and am of the decided opinion that such confinement does not deprive him, or encroach, in the slightest degree, upon his constitutional right to a speedy trial. He is simply undergoing a just, proper and reasonable period of confinement. The application is therefore denied. SUPREME COURT OF COLORADO. POIRE v. ROCKY MOUNTAIN TRANSPORTATION COMPANY. Filed October 31, 1884. TRIAL BY REFEREE-EXCEPTIONS TO RULINGS ON REPORT OF.-When no exceptions are preserved to the rulings of the district court upon the issues presented by the report of a referee and the exceptions thereto, or to the final judgment entered thereon, the supreme court is precluded from reviewing such judgment upon the evidence. THE SAME-BILL OF EXCEPTIONS REVIEW OF EVIDENCE.-Where no bill of exceptions has been taken or preserved, and the evidence contained in the record is not properly authenticated, the supreme court cannot consider any exceptions that may have been saved at the trial to the admission or rejection of testimony, but must presume that the findings of fact are correct. ERROR to the district court of Lake county. The opinion states the facts. T. A. Green and C. H. St. John, for the plaintiff in error. BY THE COURT. This cause was, by consent of parties, referred. The referee was directed to try the issues presented, and report findings of law and fact thereon. This he did, and exceptions being taken to his findings, the court, upon due consideration thereof, overruled such exceptions, and entered judgment upon the referee's report. To reverse that judgment, the cause is now before us on error. The principal issue tried by the court below, being one of fact, was, whether or not the endorsement and transfer by plaintiff of the note mentioned in the pleadings, was procured by duress. This issue was found against plaintiff in error, who was plaintiff below. No objection was preserved either to the ruling upon the issues presented by the report and the exceptions thereto, or to the final judgment rendered in the district court. Therefore, we are precluded from reviewing this judgment upon the evidence, i. e. from determining whether or not it is supported thereby: Martin v. Force, 3 Col., 199; Law v. Brinker, 6 Col., 555; Breen v. Richardson, 6 Col., 605. No bill of exceptions was taken or preserved, and the evidence was not properly authenticated. Hence this court sustained a moto strike out the same. There being no evidence before us, we cannot consider any exceptions that may have been saved at the trial to the admission or rejection of the testimony. No. 50-2. But if this finding was right, nothing remains for us to consider. The only other matter submitted is a question of law; and it does not arise in this case unless the referee and court were mistaken in their conclasion on the subject of duress aforesaid. It is, therefore, wholly unnecessary for us to examine the arguments made and the authorities cited upon the legal proposition mentioned. The judgment is affirmed. SMALL ET AL. v. BISCHELBERGER. Filed October 31, 1884. COUNTY COURT-CERTIORARI TO JUSTICE'S COURT-PETITION FOR.-The county court is expressly authorized, by section 1,992 of the general statutes, to review the action of a justice's court on certiorari, where, without fault on his part, the petitioner is unable to take his appeal in the usual way. The petitioner for such appeal must allege, first, that the judgment before the justice was not the result of negligence on his part; second, that the judgment, in his opinion, is erroneous and unjust, stating wherein such error and injustice consist; and third, that it was not in his power to take an appeal in the ordinary way, setting forth the particular circumstances which prevented him from so doing. ON A MOTION TO QUASH SUCH WRIT OF CERTIORARI THE AVERMENTS of the petition therefor must be taken as true. They cannot be contradicted by affidavits. THE SAME WHEN DEFENDANT ENTITLED TO WRIT.-The plaintiff in an action in the justice's court, promised'the defendant, for a valuable consideration, to dismiss such action. Relying upon such promise, the defendant failed to attend at the trial. Instead of dismissing, the plaintiff procured a judgment, but withheld the levy of the execution until after the time for appeal had expired. The defendant was ignorant of the judgment until the execution was levied. Held, upon a petition showing the above facts, that the defendant was entitled to a writ of certiorari from the county court to review the action of the justice. ERROR to the county court of Pueblo county. The opinion states the facts. Wescott & Irwin, for the plaintiff in error. John M. Waldron, for the defendant in error. HELM, J. This cause was first tried before a justice of the peace; it was afterward removed to the county court by certiorari and there tried de novo. The proceedings in the latter court are now before us for review upon error. A preliminary question, relating to the jurisdiction of county courts in connection with certiorari, ought perhaps to be noticed. In this state there are two statutory proceedings under this title: one, for the purpose of reviewing, under certain circumstances, the artion of an inferior tribunal, board or officer; the other, for the purpose of securing the trial de novo of cases previously heard by justices of the peace, where, without fault on his part, the petitioner is unable to take his appeal in the ordinary way. The former is provided for in chapter twenty-nine of Dawson's Code, the latter in the general statutes, section 1,992 et seq. Under the former, no justice, county or mayor's court can entertain jurisdiction; under the latter, the county court is expressly authorized to do so. Section 323 of the code, being a subsequent provision, might perhaps be construed as depriving the county court of the right to jurisdic tion under any circumstances, were it not for the proviso in section 332 of that instrument. This proviso clearly preserves the system in the general statutes, so far, at least, as county courts are concerned. The certiorari proceeding, now before us for review, was had under the system provided in the general statutes; hence, there is no question as to the jurisdiction of the county court to issue this writ in a proper case. Section 1,995 requires that petitioner shall show in his petition three things, viz: first: that the judgment before the justice was not the result of negligence on his part; second: that the judgment, in his opinion, is erroneous and unjust, stating wherein such error and injustice consist, and, third, that it was not in his power to take an appeal in the ordinary way, setting forth the particular circumstances which prevented him from so doing. No objection seems to have been made or argued in the county court, and none is argued here, as to the sufficiency of the petition in stating the second of the foregoing grounds; but a motion was interposed to quash the writ, and dismiss the appeal upon insufficiency in the averments of the first and third. The petition contained the following, among other statements: that, on the day set for trial of the cause before the justice, but previous to the hour fixed, one of the defendants in error came to petitioner, and proposed to dismiss the suit, provided he would execute a certain deed theretofore placed in escrow; that he accepted the proposition, immediately executed said deed, and notified defendants in error that he had done so; that, relying upon the promise to dismiss, petitioner did not appear before the justice; but that, instead of dismissing the cause, defendants in error, in violation of their agreement and in fraud of petitioner's rights, procured a judgment; that they withheld the levy of execution until after the time allowed by law for taking an appeal had expired, for the purpose of cutting him off from procuring a re-trial in the higher court; and that, until the levy of execution, nineteen days after judgment, petitioner was wholly ignorant that the same had been rendered against him; he supposing all the time that defendants in error had complied with their contract to dismiss the case. We think the application to quash was properly overruled. For the purposes of this motion the foregoing matters stated in the petition must be taken as literally true. The promise of Small, one of the partners, and plaintiffs-to dismiss the action was supported by a valuable consideration; it constituted the material feature so far as they were concerned of a valid and binding contract. Having fulfilled his part of the contract and notified plaintiffs in the pending suit of such performance, petitioner had a right to rely upon the observance by them of their promise to dismiss; and under the circumstances it was a fraud on their part to take the judgment. Suppose that instead of executing the deed mentioned, petitioner had paid a sum of money agreed upon, in consideration of the promise to dismiss the suit, would any lawyer maintain that it was still his duty to attend before the justice and see that plaintiffs carried out their part of the contract? We think not, he would be perfectly justified in either case in presuming that they would treat him with the same good faith he had himself displayed. It follows of course, from this conclusion, that petitioner's neglect to take his appeal within the time allowed by law, is excusable. For if the judgment against him was wrongfully and fraudulently obtained, and he had no knowledge thereof, he cannot be held negligent for not taking an appeal in the ordinary way. Any doubts upon this subject would be removed by the averments of the petition that plaintiffs intentionally withheld the execution levy, for the purpose of preventing the appeal. To deny the writ in this case would be allowing one to reap the benefit resulting from his own violation of a binding contract, where such breach thereof, is characterized by bad faith amounting to fraud. The case at bar is readily distinguishable from Tilton v. Lavimer County Ag. Association, 6 Colo., 288, cited by counsel. There the promise to dismiss was without any consideration whatever, and there was no legal obligation to perform. Besides this fact, petitioner was a corporation, and the petition failed to name the individual to whom the promise was made; it also failed to state that such person had authority to act in the premises. The court say: "If the naked promise of a plaintiff to dismiss a pending action is sufficient to excuse a party defendant from any further attention to the case, it certainly can only have this effect when made to some one duly authorized to represent the defendant.' The foregoing discussion is based upon the principle already stated that, for the purposes of the motion to quash, the averments of the petition are assumed to be true. But it appears that after denial of this motion and before the trial, defendants in error offered to prove, by witnesses then present, that many of these averments were wholly false; this the court refused to allow, and upon such refusal rests the second assignment of error. Two cases are cited by counsel which seem to sustain the propriety of the proceeding proposed, viz.: State v. Woodward, 9 N. J. L. R., 21; and Rutland v. County Commissioners, 20 Pick., 71. We are unable to learn from an examination of these cases whether those certiorari proceedings were statutory or under the common law. Certain it is that the procedure there considered was different from that which we have. Counsel frankly admit that statutes exactly similar to ours have received a construction conflicting with the one they now urge upon us. In Davis v. Randall et al., 26 Ill., 243, the court declared that "there is no provision in the statute authorizing a writ of certiorari to bring up proceedings from a justice of the peace, which allows affidavits to be read in support of, or against the petition for such purpose. That must |