cutor, the latter becomes, to all intents and purposes, the district attorney. He, nevertheless, exercises such powers in his own name. Such is the effect of the Williams' case. So, when the governor or the general assembly requires the attorney general to prosecute a criminal case in which the state is a party, he becomes to all intents and purposes the district attorney, and may in his own name and official capacity exercise all the powers of such officer, for he is then, and in that case, the public prosecutor. Being authorized and empowered to appear and prosecute, he can do each and everything essential to prosecute in accordance with the law of the land. When prosecution by information was authorized in accordance with the constitutional permission, the signing and filing of informations became essentially an act in the process of prosecution, without which the full measure of power conferred to prosecute could not be exercised. We have heretofore held that "to prosecute" is "to proceed against judicially." Brooks v. Bates, 7 Colo. 576, 580. It is "the act of conducting or waging a proceeding in court; the means adopted to bring a supposed offender to justice and punishment by due. course of law. It is also defined as the institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the state or government, as by indictment or information." -State v. Bowles, supra.

Believing as we do that the attorney general had full power and authority to sign and file the informations as disclosed by this record, it is unnecessary to consider the matter further. The cases, in accordance with the rule applied in U. S. v. Keitel, 221 U. S. 370, 399, are, therefore, remanded with instructions to reinstate the same, overrule the motions to quash in each case, and proceed therewith in accordance with the law. Reversed and Remanded.

Decision en banc.

CHIEF JUSTICE CAMPBELL and Mr. JUSTICE BAILEY not participating.

Decided June 3, A. D. 1912. Rehearing denied July 1, A. D. 1912.

[No. 6755.]

TOWERS ET al. v. Balfe.

1. DEED-Exception of Buildings-A deed of lands contains a reservation of the right to remove the "building." A hydrant ten feet distant from the dwelling, and used not only to supply water thereto, but also to water live stock, is not within the exception. It is part of the realty, passes by the deed, and its removal by one claiming under the grantee is a trespass.

2. APPEALS AND WRITS OF ERROR-Judgment-Trespass for remov. ing a fixture of trifling value. The cause having been litigated from a justice court, through the county court, to this court, the court below was ordered to enter judgment for the agreed cost of replacement.

Error to Denver County Court. Hon. GRANT L. HUDSON, Judge.

son.

Mr. ROBERT H. KANE, for plaintiffs in error.

No appearance for defendant in error.

Mr. JUSTICE MUSSER delivered the opinion of the court: Patrick Kett conveyed certain premises to Keel & ElliIn the deed, as well as in a prior contract of sale, the grantor reserved the right to remove the buildings. Later, Keel conveyed his interest in the premises to Towers, one of the plaintiffs in error. At the time of the conveyance by Mr. Kett, as well as at the time Mr. Towers became interested in the premises, there was a hydrant thereon, situated about ten feet from the house. This hydrant had been put in by Mr. Balfe, the defendant in error, two or three years before for

his mother-in-law, Mrs. Kett, and it was used in connection with the house and also to water the livestock. When the house was moved from the premises, Mr. Balfe, on his own motion, took this hydrant away. Mr. Kett did not know anything about or authorize its removal. An action was brought in a justice court for damages on account of the removal of this hydrant. From a judgment against him there, Mr. Balfe appealed to the county court, where, upon trial to the court, judgment was rendered in his favor for costs.

It is plain that the hydrant was a part of the realty and was conveyed with it unless reserved. Mr. Kett did not authorize Mr. Balfe to remove it. Even if Mr. Kett had done so, Mr. Balfe would have had no right to remove the hydrant because it was not reserved from the conveyance. It was not a building nor connected with or attached to the building so as to make it a part thereof. While it was used to supply water for the house, it was also used for the purpose of watering stock kept by the Ketts. In removing it, Mr. Balfe committed a trespass and he is liable to the plaintiffs in error for the damages occasioned thereby. The cost of replacing the hydrant was twelve dollars, and it was agreed that it was reasonably worth that sum. This small matter has been litigated enough. The judgment is reversed and the cause remanded with directions that the present judgment be vacated and another entered in favor of plaintiffs in error for twelve dollars and costs, as of the date of the former judgment.

Reversed and Remanded.

Mr. JUSTICE WHITE and Mr. JUSTICE BAILEY concur.

1.

[No. 7232.]

AMES V. NOSTRUM.

JUSTICE OF THE PEACE-Certiorari-Petition-A petition in the county court for the writ of certiorari to a justice, under Rev. Stat. sec. 3840, alleging merely that petitioner was improperly described in

the summons issued by the justice, not showing wherein the misdescription consists, and that the summons was returnable at a day exceeding the limit prescribed by the statute, not alleging the date of issuance, or the date of return, is insufficient.

The petition must show some sufficient reason for not resorting to an appeal.

2. SUMMONS-Misnomer of Defendant-The misnomer of the defendant in a summons issued by a justice of the peace is no ground for certiorari. The service of such summons is as effectual as it the defendant's true name had been given.

Error to Summit County Court.-Hon. D. W. FALL, Judge.

Mr. Jos. W. CLARKE, for plaintiff in error.

No appearance for defendant in error.

Mr. JUSTICE WHITE delivered the opinion of the court:

November 27, 1909, plaintiff in error obtained judgment against defendant in error in the court of a justice of the peace of the county of Summit. February 23, 1910, the defendant in error filed a petition in the county court of Summit county, praying that the action in which the judgment was rendered be removed from the justice court to the county court by a writ of certiorari, which was accordingly done.

Plaintiff in error thereupon filed a motion to quash the writ of certiorari, claiming that the petition therefor was insufficient to warrant the court in issuing the same. The motion was overruled, and thereupon plaintiff asked that the cause proceed to trial de novo. The request for trial de novo was disallowed, the judgment of the justice of the peace annulled, and the costs assessed against the plaintiff, who brings the matter here for review.

The petition for the writ of certiorari shows that on November 27, 1909, judgment was rendered in favor of plaintiff in error; that prior to, and on the same day the judgment was rendered, defendant in error specially appeared before the justice of the peace and objected to the summons issued in the

case, upon the ground that defendant was incorrectly and improperly designated and named therein, and the return day thereof was a designated number of days more than the maximum time limited by the statute; that because of such matters "said judgment is erroneous and unjust to your petitioner, and that it was not in the power of your petitioner to appeal from said judgment in said cause, inasmuch as the taking of said appeal would constitute a waiver on the part of your petitioner of the defects in said summons."

Wherein and how

The petition is wholly insufficient. petitioner was incorrectly and improperly designated and named in the summons is not disclosed, and the allegation as to the return day of the summons is no more than a conclusion of the pleader. The petition neither alleged the date the summons was issued, nor the return day designated therein. It is, therefore, lacking in that certainty as to time, which the fundamental rules of pleading require to be alleged in reference to traversable facts. "In personal actions the pleadings must allege the time, that is, the day, month and year when each traversable fact occurred." Andrews Stephen's Pleading, sec. 194.

Moreover, it is clear that it was within the power of defendant in error to take an appeal in the ordinary way. He was served with the summons and appeared before the justice prior to, and on the day of entry of the judgment. The fact, if it be true, that he was improperly designated and named in the summons, is of no concern. He was as truly served with the summons as if he had been served by his right name. Van Buren v. Posteraro, 45 Colo. 588, 592. Furthermore, he knew the judgment was entered, and had every opportunity to appeal therefrom, if he desired. A petition to remove a cause from a justice of the peace to the county court by the writ of certiorari must present some sufficient reason for not resorting to appeal. Austin v. Bush, II Colo. 198. It must contain the essential facts the law requires to be stated therein before the