This rule likewise harmonizes with the proceedings in other cases of a somewhat analogous character. In prize matters, where there are various claimants to a distributive share of the proceeds, the supreme court of the United States has always held that wherever judgment is rendered against one libeler, disposing of his claim adversely to the contention, there immediately comes to him the right to obtain a review of the judgment. The same rule prevails in equity suits where a cross bill has been disposed of by a final judgment, even though the main controversy remains undetermined. Withenbury v. United States, 5 Wall. 819; Nichol v. Dunn et al., 25 Ark. 129; Kiefer v. Kiefer, 4 Colo. App. 506; Black on Judgments, sec. 21. We conclude the appeal should not be dismissed.

This leaves the main inquiry whether Orman & Crook began their suit in apt time to enforce their lien. According to the averments of the complaint, the work was not completed until the 15th of August, nor was the money due from the railroad company until the work was done. We regard this as a controlling circumstance in the determination of the question. The whole difficulty seems to spring from the discussion, which has occurred in many cases, concerning the time at which the lien is sometimes said to accrue, and respecting the application of the doctrine of relation as between different lien claimants and creditors of the defendant. It is pretty universally conceded that under most of the statutes, if the claimant establishes his right to a lien, it will be held to relate back to the time at which he begun his work. This rule however has nothing to do with the remedy which the statutes give. A failure to observe this distinction has led to a little discrepancy in the decisions on this subject. Nearly all of them agree that several things must concur to originate a lien. With the contract we have no concern; but we must consider the performance of the work and the failure of the other party to pay the sum due the contractor under his convention. It is manifest Orman & Crook could have had no right to a lien before they finished their work, unless there

was something in the contract which entitled them to antecedent payments, which had not been made according to the agreement. Whether this would give them a right we need not weigh, because it is not involved. The railroad company appear to have met all their engagements maturing prior to the time the work was completed, to wit, August 15, 1893.

The plaintiffs aver the work was continuously prosecuted until that time, and on that date the sum of about thirty-one thousand dollars became due. Under these circumstances, we must conclude the parties were not entitled to file a lien as against the property until after August 15th. This leaves the question whether the repeal of one lien statute and the reënactment of another containing provisions for the enforcement of lien rights in any wise affects the remedy given to the lien claimants. It is insisted that the saving clause preserves to the contractors the right to proceed under either statute. They concede, for it cannot well be disputed, that so far as concerns the remedy given for the redress of wrongs of this description, the legislature is clothed with full power. So long as what the lawmaking body may do does not deprive the claimant of the means to enforce the lien which he has partially or wholly acquired under the preceding act, their legislation is not open to question. It is quite possible, if the work had been finished prior to the time the act of 1893 went into operation, and a right of action had accrued thereunder, a different question would have been presented. The present record does not raise it in this aspect. Regardless of the importance of the doctrine of relation as between conflicting claimants, which might become important here if Orman & Crook had succeeded in establishing their lien, it is manifest that, as between them and the railroad company, their right to the lien did not arise until the railroad company had defaulted in their payments. The plaintiffs charge that no such default was made until the 15th of August, when the sum for which they bring this action fell due. Under these circumstances, we conclude the lien should have been filed under the provisions of the act of 1893, and the suit

begun within the time limited by that act. Hanes & Co. v. Wadey, 73 Mich. 178; Templeton et al. v. Horne, 82 Ill. 491; Barton v. Steinmetz, 37 Ill. App. 141; Bardwell et al. v. Mann et al., 46 Minn. 285; Tell et al. v. Woodruff, 47 N. W. Rep. 262; Garland v. Irrigation Co., 9 Utah, 350; Weaver et al. v. Sells, 10 Kan. 609.

The statement shows the appellants failed to commence their suit in apt time, and it must therefore be adjudged that they lost the right to enforce their lien.

According to the stipulation which the parties have filed in this court, the judgment of the court below must be reversed at the cost of Orman & Crook, and the case sent back, with directions to the court below to permit them to prosecute their suit to judgment for whatever sum they may estab lish to be due from the railroad company.

Reversed.

BURCHINELL V. HIRSH ET AL.

1. EVIDENCE-COMMERCIAL REPORTS.

Vendors who rely upon statements made to commercial agencies to set aside sales as against attaching creditors must make clear and satisfactory proof both of the representations and their falsity. Reports of commercial agencies are admissible as an element of proof, but must be supplemented by evidence of actual representations made by the vendee, and such evidence must be a substantial narration of the vendee's statements, which in turn must be in effect, if not an accurate restatement, reproduced in what was furnished the seller.

2. FRAUD-DISAFFIRMANCE OF SALE.

The rights of attaching creditors cannot be affected unless the vendor can sustain his title to the property by clear and convincing evidence of fraud on the part of the vendee, and the burden of proof is on the vendor.

3. SAME.

To constitute such fraud in the purchase of goods as will authorize the seller to disaffirm the sale and maintain replevin for the property, the buyer must have had, at the time of the purchase, the intent and design not to pay.

4. VENDOR AND VENDEE.

As a general rule, a buyer is under no obligation whatever to furnish unsought information either as to his present or his changed financial condition; and although after he had made statements to commercial agencies he found his financial condition altered so that in some substantial respect his statement would not be true, he is not bound to publish his insolvency.

Appeal from the District Court of Arapahoe County.

Mr. ALFRED MULLER, for appellant.

Mr. T. J. O'DONNELL and Mr. W. S. DECKER, for appellees.

BISSELL, P. J., delivered the opinion of the court.

This replevin suit grew out of a dispute between the vendors and attaching creditors of a bankrupt merchant. During 1891, David Cohen was dealing in ready-made clothing and its usual accessories in the city of Denver. In the latter part of that year, some of the employees of the commercial agencies of Dun & Co., and Bradstreet & Co., obtained from Cohen information respecting his financial affairs. About the same time he transmitted to Benjamin & Co., of New York, a statement of his assets. In April, 1892, the appellees, Hirsh, Elson & Co., through their traveling salesman, sold Cohen a bill of goods, which was ultimately paid. In the following July, he made a further statement to one of the agencies. In October, Hirsh, Elson & Co. sold the goods which are the subject of this litigation. Cohen did not pay for them. He had gradually become embarrassed, and quite a number of his creditors commenced attachment suits against him, and levied on his stock and other property to enforce the collection of their debts. Under the levies, the sheriff took the goods which Hirsh, Elson & Co. had sold in October.

In the statements which he furnished the agencies, and in the letter which he wrote Benjamin & Co., Cohen included an interest which he had in some lots in one of the additions

to Denver, and an interest in some property near Chicago. The Chicago property was held by an association. His interest was equivalent to what he stated about his title, though the witnesses generally unite in saying that his representation was substantially that he had a certain interest in that particular property. After he made the statement in July, he exchanged the lots for a piece of improved property nearer Denver. Both the lots and the property taken in the trade were incumbered, but the terrace property was of equal value, and not more heavily incumbered than the unimproved lots which Cohen had previously owned. When the attachment suits were begun, his commercial liabilities amounted to a little upwards of eleven thousand dollars. His stock in trade and his fixtures were not enough to liquidate the debt. If coupled with the value of his real estate (as the testimony showed it to be), Cohen was not insolvent, but had some two or three thousand dollars over and above his debts, assuming, of course, that he was able to turn his land into money, and realize on whatever bills receivable he might own. The two bills of goods which Cohen bought of Hirsh, Elson & Co. were sold through a traveling salesman, to whom nothing was ever said after the statements in April, when that lot of goods was purchased. He then told Alexander something about his affairs, and referred him to Benjamin & Co. Hirsh, Elson & Co. were apparently satisfied with what they learned, and made the October sale without further inquiry. On this basis, Hirsh, Elson & Co. replevined the goods. They contend that, under the circumstances of the sale, the title to the goods did not pass as between vendor and vendee, and they could reclaim them, even from attaching creditors. In support of their title they undertook to make proof of what Cohen had stated to the commercial agencies, of what Benjamin & Co. had communicated to them, and of the amount of assets which Cohen had when he bought the goods. For this purpose, they put Cohen and the clerks of the agencies on the stand. When the clerks who collected the information were produced, they were asked

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