Volume 1 — New Mexico Reports

<p>ERROR from the district court for the county of Santa Ee. Tbe opinion states the cáse.</p>

<p>Original Jurisdiction or Supreme Court. — Original jurisdiction is given to the supreme court of the territory by the organic law of 1850, only in the single instance of the granting of a writ of habeas corpus.</p> <p>Areirhative Grant or Jurisdiction Implies, What. — An affirmative grant of original jurisdiction in particular cases implies a negative upon its exercise in any other case.</p> <p>Section 3, Article 4 or Organic Law or 1S46 Repealed. — The organic law of 1850 repeals by implication section 3 of article 4 of the organic law of 1846, relating to the original jurisdiction of the supreme court.</p> <p>Legislature can not Extend Original Jurisdiction or Supreme Court. — • The legislative assembly has no power to extend the affirmative grant of original jurisdiction to the territorial supreme court, beyond the limits of the organic law of 1850.</p> <p>Mandamus, Jurisdiction or Supreme Court to Issue. — The supreme court of the territory has no jurisdiction to issue a writ of mandamus, except where it is necessary in aid of its appellate jurisdiction.</p> <p>Appellate Jurisdiction over Probate Courts. — The district courts, and not the supreme court, have appellate jurisdiction over judgments of the probate courts originating under sections 32 and 33 of the Kearny code relating to revenue.</p> <p>Mandamus to Probate Court in Revenue Case. — The supreme court has no jurisdiction to issue a mandamus to the probate court to proceed to judgment upon a complaint against a merchant for selling goods without a license.</p> <p>Mandamus Controlling Discretion as to Continuance. — In the absence of a statute regulating continuances, it is left to the sound discretion of inferior courts to determine for what causes and how long to continue a cause, and until the contrary appears, such discretion will be presumed to have been rightly exercised and with the consent of the parties, and a mandamus to proceed to judgment will not lie.</p> <p>Judge Railing to Attend Trial, Mandamus to. — Where it is alleged as a ground for a mandamus to a judge to proceed to judgment, that he has failed to attend on divers days set for the trial, it must appear that some damage or inconvenience resulted from the failure, and that it was willful and without excuse, or the writ will be denied.</p> <p>Pleading Construed against Pleader. — The allegations of a pleading are taken most strongly against the pleader.</p> <p>Mandamus Directing what Judgment to Enter, Rerused. — A mandamus will lie, in a proper case, directing an inferior court to proceed to judgment, but not to give a judgment for or against a particular party.</p> <p>Rule to Show Cause against Mandamus Issued in Vacation. — A rule to show cause why a mandamus should not issue may be issued in vacation.</p>

<p>Demurrer to Answer Goes back to Petition. — A demurrer to the answer operates as a demurrer to the petition, if that be demurrable.</p> <p>Party Alleging Error must Show' What. — The party alleging error must show error to his prejudice. Thus, when it appears by the bill of exceptions that the party excepting was not permitted to examine an opposing witness fully, as to his interest, the judgment will not be reversed on that ground, where it is not shown that the witness’ testimony was material and prejudicial to the plaintiff in error.</p> <p>Party to Record not a Competent Witness. — A party on the record, though divested of all interest, is not a competent witness.</p> <p>Failure oe Consideration.' — Money paid upon a consideration which has wholly failed may be recovered back; as where part of the consideration has been paid upon a purchase of land, and the vendor is unable to make title.</p> <p>Refusal to Exclude Par,ol Evidence Explaining Writing. — Where parol evidence is admitted without objection to explain a writing, a subsequent refusal to exclude it from the consideration of the jury will not be deemed erroneous where the testimony and the instructions to the jury are not embodied in the bill of exceptions.</p> <p>Surrender of Possession where Title Pails. — Where, in an action to recover purchase money paid for land the title to which has failed, there is no evidence to show who has possession, but the answer alleges the plaintiff to be in possession, it will be presumed that the plaintiff gave or tendered possession, with payment of rent, before bringing the action.</p> <p>Interest on Purchase Money. — In an action to recover purchase money for land for which the title has failed, interest is recoverable from the time the vendor was notified of the intention to reclaim the consideration.</p>

<p>Contested Election oe Justice oe the Peace, Aepeal in. — An appeal lies from a judgment of a probate judge, to the district court, in a case of a contested election for justice -of the peace.</p> <p>Judgment Rendered in Vacation in such Case. — A judgment of a probate judge, deciding a contested election for justice of the peace, may be rendered in vacation.</p> <p>Appeal erom Pbobate Court Tried de Novo. — In all cases of appeals from the probate to the district court, including contested election cases, the cause is to be tried de novo upon a full hearing of the evidence.</p> <p>Right oe Election as to Citizenship under Treaty. — The right of election secured to Mexican citizens of this territory by the treaty with Mexico, to retain their citizenship or to become American citizens, was not required to be exercised in any particular mode, but could be exercised and proved in any manner appropriate to the nature of the case.</p> <p>Declaration oe Intention to Retain Citizenship. — A declaration of intention by a Mexican citizen to retain such citizenship, by signing his name in a list authorized to be kept by the clerks of the prefects’ courts, by a proclamation of the military governor of the territory, is a sufficient and binding exercise of the right of election provided by the treaty, and is not affected by a subsequently declared intention to withdraw such signature, which is not shown to have been acted on.</p>

<p>Appeal from tbe district court for tbe first judicial district. Tlie opinion of Mr. Chief Justice Baker sufficiently states tbe case.</p>

<p>ERROR from Santa Ee county. Tbe case is fully stated in tbe opinion of Watts, J.</p>

<p>Affidavit and Bond for Attachment, Piling of. — The affidavit for an attachment, together with the bond, with the clerk’s approval indorsed thereon, must he filed before issuing an attachment, or the writ will be void.</p> <p>Nunc pro Tdnc Piling of Papers. — The nunc pro tunc filing of papers, and the nunc pro tunc performance of other acts provided for by statute, must be done by the order and direction of the court, and its record must contain the order.</p> <p>Bill of Exceptions must Contain, What. — A party bringing to this court a bill of exceptions, must so embody his facts and points that the court may clearly know what it is called upon to decide.</p> <p>Pacts for Basis of Nunc pro Tunc Order, How Obtained. — The facts upon which to base an oi-der for an act to be done nunc pro tunc should be ascertained from the records of the court and from its immediate officers, and not from evidence aliunde, as by the testimony of a former clerk. Gontra, Watts, J.</p> <p>Plea in Abatement of Action Pending in Another Court. — A plea in abatement, that a suit for the same cause is ponding in the courts of another state, must show that the same party is plaintiff in both suits; and if it appear that the present defendant is plaintiff in the other suit, the plea will be disallowed. Great strictness as to such a plea is required.</p> <p>Degree of Care Required of One Keeping Cattle for Hire. — Where a party sues for services and supplies furnished in herding and feeding a band of work oxen, and it appears that nearly all the cattle died while in his charge, he is not bound to show that he exercised extraordinary care, but only that he *took such care as a prudent man mindful of his own interests would take of his own property.</p> <p>Old Spanish Law op Pastubes. — The old Spanish law of pastures does not apply to one who undertakes for pay to keep a band of working oxen during the winter.</p> <p>Veediox against Evidence. — The court will not disturb a verdict mérely because it is against the preponderance of evidence; but it is otherwise where there is no evidence on a point essential to the support of the verdict.</p> <p>Pbooe oe Joint Liability tjndeb Allegation of Pabtnebship. — In an action against a number of persons, alleged to be partners under a particular firm name, to recover for the feeding of certain cattle alleged to belong to them, it is sufficient, it seems, to show a joint interest and joint liability without proving that the cattle belonged to them as a firm.</p> <p>Rumob as Evidence oe Pabtnebship. — A mere rumor of the existence of a partnership under a particular firm name, not showing who compose it, is not evidence of its existence in an action against it.</p> <p>Voluntaby Appeahance of A Defendant. — The voluntary appearance of the defendant in a suit is a waiver of process or notice, and cures all irregularities therein; and the same rule obtains where an attempt is made to gain jurisdiction of a non-resident by attachment.</p> <p>Defects in Wbit not Noticed on Motion to Dismiss. — ■Amotion to dismiss a cause reaches only substantial defects in the petition, and defects in the writ can not be noticed thereon. Per Watts, J.</p> <p>Piling, What is. — The filing of a paper is its actual delivery to the clerk, and the keeping of it by him among the papers in the case, and is not the indorsement of it by the clerk. Per Watts, J.</p> <p>Bill oe Exceptions, Evidence not Contained in. — Depositions not made a part of the bill of exceptions can not be considered on appeal. Per Watts, J.</p>

<p>Reversal by the Late Superior Court Binding. — A judgment of the superior court established under the “ Kearny Code ” reversing a decision of the circuit court in favor of the plaintiff in an attachment suit upon a preliminary issue, joined by plea to the affidavit, and granting a new trial of such issue, is binding on the territorial district court to which the cause is afterwards transferred, and such preliminary issue must be retried beforfe the court can proceed to a trial on the merits.</p> <p>Voluntary Appearance, Effect op. — A voluntary appearance by a defendant cures irregularities in obtaining jurisdiction.</p>

<p>Appeal from Sau Miguel county. The opinions of the judges state the case.</p>

<p>Political Chief, Power oe, to Grant Land. — The political chief of the province of New Mexico, under the government of Mexico, after the separation from Spain, had no power, without express authority from the Mexican government, to grant away any part of the public domain.</p> <p>Grant from Political Chief as Foundation of Prescription. — A grant of land executed by the political chief of New Mexico in 1823, though not sufficient to pass the absolute title, for want of legal authority to make it, is nevertheless admissible in evidence as against one having no better right, to show the time and mode of gaining possession, and the point from which the adverse occupation is to be reckoned.</p> <p>Evidence of Custom Respecting Possession of Public Land. — Where a plaintiff in ejectment is endeavoring to prove a prescriptive right to land of which he claims to have entered into possession in 1823, evidence is admissible to show what was the custom under the Spanish and Mexican governments with respect to getting possession of the public domain.</p> <p>Demurrer to Evidence. — Where a demurrer to evidence is interposed, the party demurring must admit all the facts which the evidence proves, or conduces to prove, and if there is a disagreement as to'the facts, the court can not decide what facts have been proved, and compel the adverse party to join in the demurrer.</p> <p>Grant from Political Chief Presumed Valid.' — A grant for a part of the public domain executed by the political chief of New Mexico in 1823 upon a petition of the grantee and with the advice and consent of the provincial deputation, and reciting the fact that it was made pursuant to legal authority, such grant and the possession taken thereunder having remained without objection from the national government for twenty-five years, must be presumed to have been duly authorized and to be valid, at least so far as to confer a possessory title good against all the world except the national government. Per Brocchus, J.</p> <p>Rights under Mexican Grants Protected by Treaty. — Property rights acquired under Mexican grants in New Mexico, prior to the cession to the United States, are fully protected by the treaty of 1848, and can not be disturbed. Per Brocchus, J.</p>

<p>Appeal from the district court for the first judicial district. The opinion states the case.</p>

<p>Jurisdiction in Debt under One Hundred Dollars. — The district courts have concurrent jurisdiction with courts of justices of the peace in debt in sums less than one hundred dollars.</p> <p>Costs Allowed where D amases under One Hundred Dollars. — The plaintiff in an action of debt in the district court recovering less than one hundred dollars’ damages is nevertheless entitled to costs.</p> <p>Dorm or Jud&ment and Verdict on Injunction Bond. — In an action on an injunction bond, where the jury award the plaintiff damages below the penal sum, the verdict should be for the penal sum with damages assessed at the amount awarded, and the judgment should be that the plaintiff recover the penal sum to be discharged on payment of the sum awarded as damages; but a defect in this respect, being merely formal, may be corrected in the supreme court.</p>

<p>District Courts Have bo Strictly Appellate Jurisdiction. — Under the organic act no court is clothed with appellate powers except the supreme court, and the legislature can not confer upon the district courts strictly appellate and revisory jurisdiction.</p> <p>Appeal to District Court prom Justice, How Tried. — On an appeal from a justice of the peace to the district court, the case is tried de novo on its merits in such district court, as a court of original jurisdiction, and not as an appellate court, without regard to the previous trial,, and the parties may file accounts, set-offs, etc., as if the case had originated in the district court.</p> <p>Errors in Transcript on Such Appeal. — The transcript on appeal from a justice of the peace to the district court is to be resorted to only to ascertain that the case originated and was tried in such justice’s court, a judgment rendered, and an appeal properly taken, and it is not error for the court to refuse to. dismiss the case for errors apparent in the transcript.</p> <p>Discrepancies in Testimony are por Jury. — It is the province of the jurjr to weigh the testimony and to decide as to apparent discrepancies therein.</p> <p>New Trial because Verdict against Evidence. — An application for a new trial because the verdict is against evidence is addressed to the sound discretion of the court, and should be denied, unless the finding of the jury is clearly against the weight of evidence, and the ends of justice obviously require that a new trial should be had.</p>

<p>Descriptive Roll oe Soldier as Evidence oe Age. — On a trial of the right of one enlisted as a soldier in the United States army, to be discharged on habeas corpus, on the ground that he was a minor when enlisted, the descriptive roll made out at his enlistment, stating his age to be over twenty-one, is important evidence of that fact.</p> <p>Presumption in Pavor oe Majority. — Where the descriptive roll states the recruit to have been over twenty-one, and he has since received pay, subsistence, etc., as a properly enlisted soldier, without objection, the presumption is in favor of the regularity of the proceedings of the enlisting officer, and that such recruit was of lawful age until he establishes the contrary by proof of an evident and decided character.*</p> <p>Opinions as to Age erom Personal Appearance. — Opinions of witnesses as to the age of such a person from his appearance are very uncertain and unsatisfactory evidence on that point.</p>

<p>Duress or Imprisonment. — To constitute duress, an imprisonment must be tortious, and without lawful authority, or by an abuse of lawful authority.</p> <p>Laweul Imprisonment no Duress. — Imprisonment under regular and lawful process, upon probable cause and without malice, doesnot constitute duress so as to invalidate a contract entered into by the prisoner to procure his freedom, unless he has been induced thereto by unlawful force or privations.</p> <p>Re-enlistment by Soldier Laweolly Imprisoned. — A contract of reenlistment voluntarily entered into by a soldier while under lawful arrest for a military offense, through the friendly counsel of his guards, but without any request or solicitation of the enlisting officer, though upon his promise that the charge pending will be dismissed if the soldier’s future conduct is good, is not invalid for duress.</p> <p>Enlistment on Sunday Valid — There is no law in this territory invalidating a contract of enlistment by a soldier entered into on Sunday.</p>

<p>Appeal from Santa Fe county. The opinion states the case sufficiently.</p>

<p>Absence op Beturn oe Service, Presumption prom. — Where no return of service of process appears in a cause in a justice’s court, the presumption is that there was no service, though the justice states in his transcript on appeal, that the summons was returned served.</p> <p>Want oe Service, Objection to, in Appellate Court. — The objection that the defendant was not served with process can not be raised in the appellate court, after a trial on the merits in the court below.</p> <p>Peons, Who are. — Strictly speaking, peons are a class of servants in New Mexico, bound to personal service for the payment of debts due their masters, but there seems to be no law regulating their rights and duties under that specific denomination, and the term “ peon ” is now used as synonymous with ‘ ‘ servant. ”</p> <p>Master and Servant, Law op, Discussed — The history of the law of master and servant in New Mexico is very fully given in the opinion of Benedict, J.</p> <p>Belation op Master and Servant, Matter op Contract. — The relation of master and servant in this territory is a matter of mutual contract, and such contract may be entered into by any free persons, where there is no legal impediment.</p> <p>Alcalde, Jurisdiction op, under Keap.ny Code. — Alcaldes, under the Kearny code, were substantially justices of the peace; having no powers beyond those expressly conferred upon them.</p> <p>Alcalde could not Proceed Summarily against Pugitive Servant.— Under the Kearny code, an alcalde had not power to issue summary process to compel the return of a peon or other servant who had left his master’s service while in debt to him; but the master was left to recover his debt from his servant in the same way as from an ordinary debtor. Prefect’s Jurisdiction as to Master and Servant. — The jurisdiction given to prefects by the Kearny code extended to all controversies between masters and servants.</p> <p>Prefect’s Ex Parte Adjudication not Binding. — Under the Kearny code, a prefect had no power upon an ex parte application, without notice to the advers.e party to adjudge or certify that the latter was a fugitive servant, indebted to his master in a certain sum, which he was bound to pay by his sendees, or in money, and such certificate, if given, is no evidence of the facts therein contained.</p> <p>Child not Bound to Serve for Eather’s Debt. — A child can not be held bound, without his own consent, to serve a third person in payment of his father’s debt beyond his minority.</p> <p>Remedy for Servant’s Violation of Contract. — Under the law of 1852, a servant refusing to comply with his contract may be punished by fine and imprisonment, and judgment, in due course of law, may be rendered against him for any indebtedness due his master, and his services may be sold on execution to the highest bidder, to satisfy said judgment.</p> <p>Judgment that Defendant Serve as a Peon, Void. — In such a case, upon giving the master judgment for his debt, a further judgment, that the defendant serve the plaintiff as a peon till the debt be paid, is void.</p>

<p>Commissioner’s Authority to Take Depositions not Exclusive. — Notwithstanding the appointment of a commissioner to take the testimony-in a cause, depositions may be taken before the chancellor, upon legal notice to the adverse party, and used upon the trial.</p> <p>Decree Necessaby to Separation or Husband and Wipe. — According to the principles of the civil law, a separation from bed and board, or a dissolution of the conjugal association, must be decreed by a competent tribunal, and the consent of the parties is not enough.</p> <p>Wipe’s Right to Recover Dotal Property. — Without a decree of dissolution of the conjugal association, a wife can not recover from her husband, or resume the administration of her separate dotal property without showing waste or dissipation of it by the husband, especially where she has voluntarily abandoned him without cause, and is living in adultery with another.</p> <p>Dotal Property, Wi-iat is. — Dotal property is the capital given to the husband by the wife, or some one for her, before or after the marriage, for the purpose of supporting the matrimonial expenses. <</p> <p>Costs on Bill to Recover Dotal Property. — On the dismissal of a bill filed by a wife to recover her dotal property, because the conjugal association still continues, the costs must be decreed against the husband, he being the lawful custodian and administrator of the wife’s estate, and therefore liable for expenses which she may incur.</p>

<p>Murder in Puto Degree. — Evidence that there was ill-will, existing at the time of a homicide, between the prisoner and the deceased, and that, the parties being about thirty-five varas apart, the deceased took his gun from his shoulder as if to offend the prisoner, but did not present or point it at him, when the latter stepped back a few steps and fired the fatal shot, is sufficient to support a conviction for murder in the fifth degree.</p>

<p>Appeal from the district court of the second judicial district for the county of Yalencia. The facts appear from the opinion.</p>

<p>Appeal from tbe district court of the third judicial district for tbe county of Socorro. Tbe opinion states the case.</p>

<p>Appeal from the district court of Socorro county. The case appears from the.opinion,</p>

<p>New Tbial, Newly Discovered Evidence as Ground for. — In order to obtain a new trial on the ground of newly discovered evidence, a party must show that the failure to produce the evidence at the former trial was not owing to a want of due diligence on his part, and that, if produced, it would probably have changed the result.</p> <p>Evidence of Identity of Watch. — The testimony of witnesses who have examined and written down, or seen others write down, the number of a watch, is evidence of a more satisfactory character, and of a higher grade as to its identity, than that 'of witnesses who testify merely from the general appearance of the watch.</p> <p>Idem — Testimony of Watchmaker. — The testimony of a watchmaker who has repaired the watch and can identify the particular repairs made by him, is especially valuable in such a case.</p> <p>Preponderance of Evidence as Ground for New Trial. — A new trial will be granted by an appellate court, where the evidence greatly preponderates against the verdict, and it appears that the merits of the case have not been fully and fairly tried, and that justice has not been done.</p>

<p>Appeal from tbe first judicial district. Tbe opinion states tbe case.</p>

<p>County may be Sued. — A county is a quasi corporation, and therefore may sue and be sued, by virtue of the territorial statute extending the word ‘‘ person ” to bodies ‘‘ politic and corporate. ”</p> <p>Petition a Substitute bob Declabation. — Though a petition has been, by statute, substituted for a common law declaration in this territory, none of the essential averments in such a pleading are thereby dispensed with.</p> <p>Petition on Account bob Services as Jaileb, Averments in. — In a petition against a county, on an account for services as jailer, the absence of averments that the plaintiff was acting in that capacity, that there was any promise by the county that a warrant was drawn on the treasury for the amount, or that the county is in any way liable for its payment, renders the petition demurrable.</p> <p>Claims against County by Whom Allowed. — The judge of probate, and not the judge of the district court, is the proper oiBcer' to allow claims against a county in the first instance.</p> <p>One Good Count in Petition, on Demurbeb to Whole. — In ease of a demurrer to the whole of a petition containing several counts, the plaintiff is entitled to judgment if there is a single good count.</p>

<p>Appeal from tbe district court for tbe county of Taos. Tbe opinion states tbe case.</p>

<p>Appeal from tbe district court of the first judicial district for Santa Ee county. The case is stated in tbe opinion.</p>

<p>Notice oe Change oe Reasons eok Motion Unnecessary, When.— Where, upon a motion to quash an execution, certain reasons therefor are assigned, and after argument, both parties being present, the mover, upon the suggestion of the court, withdraws the reasons assigned, and assigns others varying from them in form only, and not in substance, and requiring no change in the arguments or authorities relied upon by the adverse party, the latter is not entitled to new notice before proceeding to further argument, and if he declines to contest the matter further without such notice, the court may nevertheless decide the motion against him.</p>

The case is stated in the opinion of Boone, J. 1. The statute requiring written instructions in all “ suits ” applies only to civil causes: Toml. L. Diet. 535. 2. The caption of the indictment is sufficient: Whart. Prec. of Indictments, 14 and 20; Tenorio v. Territory, ante, 279.

<p>Appeal from tbe district court for Eio Arriba county. The opinion states tbe case.</p>

<p>Appeal from the district court for Santa Ee county. The facts appear from tbe opinion.</p>

<p>Appeal from the district court for Rio Arriba county. The opinion states the case.</p>

<p>Judicial Notice oe Historical Facts. — Judicial notice -will be taken of public and notorious facts in tbe history of New Mexico.</p> <p>Retention oe Mf.xican Citizenship under Treaty. — The declaration of intention to retain the character of Mexican citizens provided for by the treaty of Guadalupe Hidalgo, with respect to Mexican residents of this territory, must be presumed to have been designed to be made according to the laws of naturalization of Mexico, rather than those of the United States.</p> <p>Public Declaration Necessary. — Such declaration of intention could not be made privately, but was necessary to be made before some court, officer, tribunal, or public authority, who should preserve the evidence of it.</p> <p>Governor Washington’s Proclamation on this Subject Unnecessary.— The proclamation issued by acting Governor Washington, in April, 1848, was not necessary to enable Mexican residents of the territory to elect to remain Mexican citizens; but in the absence of any such proclamation, a formal declaration of an intention to retain such citizenship made before a court having a record and a clerk to keep the same, would have been sufficient.</p> <p>Such Proclamation Authorized. — Acting Governor Washington had competent authority, as the representative of the president, and the executive head of the de facto government then existing in this territory, to issue such proclamation.</p> <p>Declaration under such Proclamation Valid. — A declaration of an intention to retain Mexican citizenship made and subscribed freely, knowingly, and without fraud or deception, before a probate court, in accordance with Governor Washington’s proclamation, was a valid and-binding exercise of the right of election reserved to Mexican residents of the territory, by the eighth article of the treaty of Guadalupe Hidalgo.</p> <p>Proof of DECLARATION INSUFFICIENT, When. — The appearance of the name of a party, proved to be in his own handwriting, subscribed, with others, to a declaration of an intention to retain the character of a Mexican citizen, contained in a book produced from the office of the secretary of the territory, but not shown or certified to have been the record of the probate court of any county, and there being nothing to prove that such list was opened, or kept in pursuance of the proclamation, or that any of the persons whose names are included therein ever appeared before any court or officer, and subscribed such declaration, or as to when or where the names were subscribed, is wholly insufficient evidence of an exercise of the right to elect to remain a Mexican citizen under said treaty.</p> <p>Certificate by Deputy Clerk Insufficient, When. — A certificate signed by one as “deputy” in the name of his principal as clerk of a court is not a sufficient authentication of an official document, it seems, where there is no law authorizing the appointment of a deputy.</p> <p>Certificate must State Pacts. — A clerk’s certificate to a list of names appended to a declaration of intention to remain Mexican citizens, that “it is a correct list of all who have elected” in a particular county “to retain the character of Mexican citizens, ” is insufficient, because it states merely the judgment of the officer and not the facts as to the persons so named having appeared before such officer and subscribed such declaration, etc.</p> <p>Proof of Executive Proclamation Insufficient, When. — The mere production of a copy of an executive proclamation, not certified by any person, -without any proof that it was ever published, is insufficient proof of the issuance of such proclamation.</p> <p>Piling Declaration of Naturalization does not Prove Alienage. — The filing of a declaration of intention to become a citizen of the United States by a Mexican who resided in this territory at the date of the treaty of Guadalupe Hidalgo, is not evidence that such Mexican had previously elected to retain his Mexican citizenship under that treaty, whei’e such evidence is offered under a plea in abatement to an indictment found by a grand jury of which such Mexican was foreman.</p>

<p>Appeal from the district court of Socorro county. The facts appear from the opinion.</p>

<p>Appeal from the district court of Santa Fe county. The case appears from the opinion.</p>

<p>Action aqainst Defaulting Sheriff, What not a Defense to. — It is no defense to an action brought by the attorney-general in the name of the territory against a sheriff to recover moneys received by him from his county belonging to the territorial treasury, but not paid over, to show that the letter of instructions from the territorial auditor to the attorney-general for the bringing of the suit did not specify the amount of the indebtedness, etc., as required by the act of 1S53, concerning defalcations of officers, that act beingunerely directory and compliance with it not being a condition precedent to the bringing of the suit.</p>

<p>Specific Performance of Contract, Justice can not Enforce. — A justice of the peace has no jurisdiction to enforce specific performance of a contract to build a house upon a certain tract of land, by an alternative judgment requiring the* defendant to build the house or to pay a certain sum.</p> <p>Alternative Judgment. — An execution-to enforce such an alternative judgment of a justice is void on its face.</p> <p>Execution not Signed by Justice. — An execution from a justice’s court not signed by the justice, but by the sheriff to whom it is directed, is void on its face.</p> <p>Levy under Void Execution, Remedy for. — An execution void on its face is no protection to an officer making a levy on chattels thereunder, and he is liable therefor in replevin, trespass, or trover.</p> <p>Idem — Bill nr Equity will not Lie fob. —The legal remedy for such wrongful levy being complete and adequate, a bill in equity will not lie to compel a restoration of the property and an account of the damages.</p> <p>Jurisdiction to Prevent Trespass. — A court of equity has no jurisdiction to interfere to prevent a trespass which is not irreparable by reason of the character of the property, and the injury, or the irresponsibility of the party, and for which there is an adequate remedy at law.</p> <p>Possession of Chattel not Interfered with in Equity, When. — A court of equity will not interfere to take personal property from one party and give it to another before a hearing upon the bill.</p>

<p>Appeal from tbe district court for Mora county. Tbe case is stated in tbe opinion.</p>

<p>Appeal from the district court for Santa Fe county. The case appears from the opinion.</p>

<p>Bond on Appeal from Justice is “Peocess,” and Requeues Stamp. — An appeal bond on an appeal from'a justice is the “process,” or principal step in taking the appeal, and requires a stamp, under the United States revenue law, or the appeal will be invalid.</p> <p>Invalid Appeal not Cubed by Amendment. — An appeal from a justice, which is invalid for want of a stamp on the appeal bond, can not be cured by an order in the district court permitting the appellant to amend by filing a new bond, properly stamped.</p>

<p>Omission or “Unlawfully” in Indictment for Aggravated Assault.— An indictment, under section II, chapter 55, of the Revised Statutes, for an aggravated assault, charging that the accused ‘ ‘ did beat, bruise, and wound” a certain person, but omitting the word “unlawfully,” contained in the statutory description of the offense, is fatally defective.</p>

<p>Appeal from the district court for Mora county. The opinion states the case.</p>

<p>Chancery Jurisdiction oe Territorial Courts — The chancery jurisdiction of the courts of this territory is derived from the organic act and other acts of congress, and is the same as is vested in the courts of the United States possessing chancery powers, combining the jurisdiction of United States circuit and district courts with that arising under territorial laws.</p> <p>Equity Gives no Relief against Void Judgment, When. — A bill in equity will not lie to restrain the execution of a judgment which is absolutely void, because the party aggrieved has an adequate legal remedy by an action of trespass against any officer attempting to enforce such judgment.</p> <p>Expense and Inconvenience of Legal Remedy. — The fact that the legal remedy for a wrong is expensive or inconvenient, or that the party is likely to obtain insufficient damages, will not give a court of chancery jurisdiction.</p> <p>Statute Abolishing Distinction between Law and Equity. — The territorial statute of July 12, 1851, abolishing the distinction between courts of law and equity as to their jurisdiction and practice, is not binding on the courts of the territory, the legislature having no power to^pass such a law.</p>

<p>Appeal from the district court for San Miguel county. Tbe opinion states tbe case.</p>

The opinion states the case. 1. The setting aside of a default rests in the sound discretion of the court, a discretion intended to supply remedial justice in cases, the circumstances of which can not be clearly foreseen, and upon which the judge must act when they arise. This discretion is a legal discretion, not to be exercised through caprice, prejudice, ignorance, or carelessness; but for the promotion of justice.

<p>Sections of Statute Re-enacted on Same Day, How Construed. — Where sections of statutes on thé same subject, enacted originally at different times, are re-enacted by a revisory act, they are to be construed together, if possible, as continuous sections of the same act; and this principle should be applied in construing the sections of the statute relating to service of process, where the sheriff is a party.</p> <p>Service oe Process against Sheriff. — Where the sheriff is a party defendant, upon the affidavit of the plaintiff showing that fact, the clerk must direct the process to the United States marshal, and the latter must serve it, the section requiring service of such process by the coroner being nugatory, because there is no provision that process shall in such cases be directed to the coroner.</p>

<p>Appeal from tbe district court for Bernalillo county. The facts are stated in the opinion.</p>

<p>Obtaining Restitution in Replevin after Satisfaction. — Where a defendant in replevin obtains a dismissal of the action and an order of restitution, and, after accepting from the plaintiffs a deed of certain land in full satisfaction for the replevied chattel, procures a writ of restitution to be issued and executed, he is liable as a trespasser, the property in such chattel being transferred to the plaintiffs by such acceptance of satisfaction.</p> <p>Sheriff Executing such Writ not Liable. — The sheriff executing the writ of restitution in such a case, the writ being regular on its face, and no actual complicity on his part in the wrongful acts of the defendant being shown, is not liable in trespass therefor.</p> <p>Dependant’s Agent not Liable foe, Deceiving the Pkopekty. — The defendant’s agent receiving such chattel from the sheriff, and taking it beyond the plaintiff’s reach; is not liable in trespass if not shown to have been privy to the facts rendering the execution of the writ wrongful.</p>

<p>ERROR to the first judicial district, Santa Ana county, in an action of debt on a statute. The opinion states the case.</p>

<p>Common Carrier may Sub in Common Counts. — A common carrier suing for freight, where it does not appear that the‘services were performed under a special agreement or agreement under seal, may declare in the common counts in assumpsit, and need not declare specially setting forth the place of receiving and the place of delivering the goods.</p> <p>Common Carrier, Who is. — An owner of a wagon train who, without any special agreement, sends his train to transport goods for reward for all who may employ him, and undertakes to carry the goods of a particular owner, assumes, with respect to such goods, the duties and liabilities' of a common carrier.</p> <p>Exception ©e “ Unavoidable Accidents ” in Bill oe Ladino. — The usual exception of “unavoidable accidents” contained in a bill of lading signed by a common carrier does not limit or restrict his liability in any way.</p> <p>Liability oe Freighter not Limited by Statute, When. —The act concerning freighters, approved February 1, 1866, has no effect to limit the liability of a freighter as a common carrier, where there is no agreement between the parties made in accordance with the provisions of the act.</p> <p>Destruction oe Goods by United States Soldiers does not Relieve Carrier. — The liability of a common carrier for the safe delivery of goods is not relieved by showing that they were destroyed by an overwhelming force of United States soldiers under the command of an army officer, this not being a destruction by “ public enemies.”</p>

<p>DISCRETION, Matters oe, not Reviewable. — Matters of pure discretion are not reviewable on appeal.</p> <p>Discretion oe Court as to Reasons eor not Filing Paper. — It is left to the discretion of the court to determine as to the satisfactoriness of the reasons given by a party for not filing the original, or a copy of a paper offered in evidence, as required by law, and its action on that subject is not reviewable on appeal.</p> <p>Grounds oe Objection not Appearing on Record. — If the grounds of an objection to evidence do not appear on the record, on appeal, they can not be considered. Per Palen, C. J.</p> <p>Surprise not Ground oe New Trial, When. — A party is not entitled to a new trial on the ground of surprise, at the introduction of evidence objected to by him, where he does not at the time of its admission ask for a continuance as a condition thereof. Per Palen, C. J.</p> <p>Instruction Assuming Facts, Erroneous. — An instruction to the effect that if a transaction, whose fairness is one of the questions in issue, had been an honest one, the party alleging it could have proved it, but that no such proof was offered, is erroneous, because it trenches upon the province of the jury, if, in fact, there was any evidence tending to prove the honesty of such transaction.</p>

<p>Petition for a discharge in bankruptcy. The facts appear sufficiently from the opinion.</p>

<p>Interlocutory Order, What is. — Any order or decree made during the progress of a cause, which does not wholly dispose of the merits of the case, is interlocutory only.</p> <p>Final Decision only is Appealable. — No appeal lies in this territory except from a final decision in a cause.</p> <p>Order eor Payment oe Money Interlocutory and not Appealable, When. — An order made by a district judge, upon petition of the plaintiff in a suit brought by such plaintiff as administratrix of her deceased husband, to compel an accounting and settlement by the defendants as copartners of the intestate, which requires the defendants to- pay to the plaintiff a certain sum, for her actual support, “to be credited to said defendants on the final accounting in this cause,” is interlocutory only and therefore not appealable.</p>

<p>Appeal from tbe district court for Santa Fe county. Tbe opinion states tbe case.</p>

<p>Previous Acts rot Contained in Revised Statutes, Repealed. — All laws enacted prior to the session of the territorial legislature of 1864-65 which are not contained in the revised statutes adopted at that session, were impliedly repealed by such omission. Hence, the act of January 26, 1860, relating to trials of the right of property, is not now in force. Conira, Waters, J., dissenting.</p>

<p>Ma-keeks or Defense not Responsive to Bill, Hqw Set up. — Matters of defense in a suit not strictly responsive to the hill must be set up by a cross-bill, and not in the answer.</p> <p>Motion to Amend Properly Refused, When. — The overruling of a motion of the defendants to amend their answer to a hill so as to add, as a party to the suit, the conrplainant’s husband, she having intermarried with him after the commencement of the suit, is not erroneous, where such party has already been added on the motion of the complainant.</p> <p>Ancillary Letters of Administration not Revoked, How. — Where letters of administration gx-anted in another state, where the intestate was domiciled, are revoked, such revocation does not affect ancillary letters which have been, in the mean time, taken out in this territory by the same person, nor is a suit previously brought by such administrator in this territory on behalf of the estate abated by such revocation.</p> <p>Waiver of Objection as to Marriage of Female Plaintiff. — Where a female plaintiff in a suit in 'equity marries pending the suit, and the defendant afterwards moves to amend so as to make the husband a party, he thereby waives any objection that the suit ought to have been dismissed because of such marriage, although the motion is overruled because the husband has already been made a party on the complainant’s motion.</p> <p>Marriage of Administratrix, Effect of. — The marriage of an administra-trix, plaintiff in an equity suit, it seems, merely suspends the suit until the husband is made a party, while at law it puts an end to the action.</p> <p>Sueeicienoy oe Administrator’s Bond does not Aeeect Suit. — The question as to whether or not an administrator has given a sufficient bond is not one with which a court of equity, in which such administrator has sued, has anything to do.</p> <p>Failure to Object to Draet Retort oe Master in Chancery. — Where a party to a suit in chancery, which has been referred to a master, refuses to comply with the master’s summons to appear and file objections to his draft report, it is the settled practice that no objection made by such party to the report after it is filed will be heard.</p> <p>Rules oe United States Supreme Court not Applied to Territorial Court. — None of the rules adopted by the United States supreme court, except the ninety-second, apply to territorial courts. Therefore, rule 83, giving thirty days to except to a master’s report, has no application to those courts.</p> <p>Consolidation oe Cross-suit and Original Suit. — There is no such thing in equity practice as consolidating the issue, raised. by a cross-bill and answer with those raised by the original bill and answer, although the bill and cross-bill may be heard together.</p> <p>Order Closing Prooes. — The supreme court will not disturb a decree in the court below, because that court made an order to close the proofs five months after the issues were made up, where no abuse of discretion appears.</p> <p>Ueposition not Suppressed which Contains some Legal Evidence. — It' is not error to refuse to suppress a deposition as a whole, when a part of the evidence contained in it is legal.</p> <p>Reeusal to Submit Question to Jury in Equity Suit. — It is within the discretion of a court of equity to submit a particular question of fact to a jury, but its refusal to do so is not error, particularly after a reference of the whole case to a master, and a finding by him on that question, as necessarily involved in his report.</p> <p>Matter not Responsive to Bill must be Proved. —The rule in equity is that matter in an answer not responsive to the bill must be proven, even though the answer is sworn to.</p> <p>Master’s Bindings oe Eact not Reviewed. — The supreme court on appeal from a decree, will not review findings of fact in the master’s report in the court below.</p>

<p>Demurrer Waived by Pleading over. — Pleading over to a declaration or ■ petition adjudged good on demurrer, waives the demurrer, though an exception has been taken.</p> <p>Amendment Striking out Party aeter Plea in Abatement. — An order allowing a plaintiff to amend by striking out the name of a defendant as improperly joined, after a plea in abatement for such misjoinder is filed, but before it is called up, is not erroneous, no injury appearing to have' resulted to any of the parties.</p> <p>Affidavit for Continuance for Absence of Witnesses. — An affidavit for a continuance on the ground of the absence of material witnesses must show what is expected to be proved by them.</p> <p>Laches of Co-defendants. — The laches of co-defendants in procuring counsel or the attendance of witnesses, etc., ought not to influence the court to grant a continuance.</p> <p>Refusal to Allow Time to Apply for Change of Venue. — It is not error to refuse to allow time to prepare an application for a change of venue, after a day for the trial has been set and a motion for a continuance has been overruled.</p> <p>Copy of Paper in Possession of other Party need not be Piled. —It is a sufficient reason for not filing an original paper or a copy of it, as required by statute, before introducing such copy in evidence, if it is shown that the original is in the possession of the adverse party.</p> <p>Variance between Original and Copy Piled, Amendment of. — Where the copy of an administrator’s bond filed in court describes the intestate as “Charles S. H-,” while the original describes him as “ C. S. H-, ” it is not error to permit an amendment so as to conform the copy to the original and then to receive the latter in evidence.</p> <p>Attorney Competent Witness eor Client.' — An attorney is a competent witness for his client.</p> <p>Former Administrator Competent Witness eor Successor. — A former administrator de bonis non is a competent witness for one subsequently appointed, in a suit relating to the estate, where such witness is not shown to be interested in the event of the suit.</p> <p>Exclusion oe Irrelevant Evidence. — The exclusion of evidence irrelevant to the issue to be tried is not erroneous.</p> <p>Instructions Excepted to as a Whole. — Exceptions to instructions must be specific or the instructions will not be reviewed, and if excepted to as a whole, all must be affirmed if one is found correct.</p> <p>Refusal oe Correct Instructions not Error, When. — It is not error to refuse instructions asked for by a party, even though correct, where the instructions already given cover the entire case and submit it properly to the jury.</p> <p>Informal Verdict, Correction oe. — Where a jury find for the plaintiff in . an action on an administrator’s bond “ the sum demanded with interest at six per cent.,” it is not error for the court to aid them in putting such verdict into proper form, so as to show that they find for the plaintiff “ the sum demanded, and assess his damages at,” etc.</p> <p>Objections to Arguments oe Counsel. — The appellate court will not consider an objection urged below as a ground for a new trial, that the opposing counsel used “ improper arguments, ” where it does not appear what the arguments were, or that the court below was applied to for correction at the time, and proper exceptions taken.</p> <p>Failure to Commit Documentary Evidence to Jury. — It is not a ground for a new trial that the judge did not, when the jury retired, commit to their hands the papers and documents used as evidence- on the trial.</p> <p>Action on Administrator’s Bond. — The provisions of the statutes providing penalties against administrators for not exhibiting their accounts as required by law, do not preclude an action on an administrator’s bond to x-ecover damages for the loss of the estate through his unfaithfulness or neglect.</p> <p>Who may Sue on Administrator’s Bond. — The administrator de bonis non is the proper person to sue on a former administrator’s bond for a failure to deliver over the assets of the estate.</p> <p>Principal and Sureties on such Bond Sued jointly. — An action may be maintained against the principal and sureties jointly for a breach of an administration bond, and judgment against the principal before proceeding against the sureties is unnecessary.</p> <p>Sureties on such Bond Liable for Principal’s Non-feasance. — Sureties on an administration bond are liable, not only for the principal’s malfeasance as to money of the estate coming into his hands, but also for his non-feasance in not collecting the assets.</p> <p>Administrator’s Failure to Collect Intestate’s Share in Partnership. — An administrator failing to collect the shax-e of his intestate in a partnership, but selling such interest to the surviving partners, or making an arrangement with them to retain such share at a valuation, but neglecting, until his resignation and until the partners became embarrassed, to collect the amount, is liable therefor, with his sureties, in an action on his bond, and the administrator de bonis non need not first attempt a collection from the surviving partners.</p>

Tbe case appears from tbe opinion. The first error assigned is that the court overruled tbe defendants’ demurrer to tbe plaintiffs’ declaration. As tbe defendants afterwards filed a plea of general issue, their demurrer ought not to be considered by this court: Young v. Marlin, 8 Wall. 354; 9 Id. 762; Aurora City v. West, 7 Id. 92; 4 Id. 598; Clearwater v. Meredith, 1 Id. 42; 11 Pet. 80; 5 How. 29.

<p>District Court may Issue Certiorari to Probate Court. — The' district courts of this territory have jurisdiction to issue •writs of certiorari to the probate courts in the exercise of their superintending control over them.</p> <p>Remedy by Certiorari not Lost by Failure to Appeal, When. — Failure to take the lawful steps for an appeal from an adverse proceeding, in the probate court at the term at which such proceeding is had, does not preclude a party from the benefit of the writ of certiorari under chapter 24 of the Revised Statutes, in a case where the probate court had no juris-, diction of such party by appearance or service of notice.</p> <p>Appointment of Debtor op Estate as Administrator. — The appointment of one who is indebted to an estate, or against whom a suit is pending on behalf of such estate, as administrator thereof, is wholly unwarranted by law.</p> <p>Removal op Administrator Set Aside by Certiorari. — The removal of an administrator, without notice, for a failure to file an inventory, after an order dispensing with such inventory until the determination of a certain suit brought on behalf of the estate to obtain an account of part of the assets, and the appointment of one of the sureties on appeal of the defendants in said suit as administrator de bonis non, may be set aside and annulled on certiorari from the district court, and the probate court may be restrained from any further attempt to remove such administrator until the termination of said suit.</p>

<p>Appeal from tlie district court of Santa Fe count}'. The opinion states the case.</p>

<p>Objections to Jurors, How Waived. — Any objection to the mode of the selection of a jury, or to the fact that some of the jurors are nonresidents, if known to the defendant in a criminal case at the time of impaneling the jury, and not made at that time, will be deemed waived, and can not he insisted upon after verdict.</p> <p>Robbery — Violent Taking, Necessity oe. — It is not error to refuse to instruct the jury on the trial of an indictment for robbery, that in order to a conviction they must find that the defendant did “ with force and violence take the property, ” because it is sufficient if the taking was “with force and arms,” or “by assault and putting in fear.”</p> <p>Discrediting Witness, Instruction as to, not Erroneous, When. — It is not error to refuse to instruct the jury in a criminal case that if they believe the principal witness for the prosecution “is fully contradicted by other good men as witnesses, and that he was drunk and admitted it before the justice, and denies it here, and in other respects is contradicted by the witnesses, the jury should give no weight to his evidence unless corroborated by other evidence, ” because such an instruction is too broad, and includes irrelevant matter.</p>

<p>Appeal from the district court for Rio Arriba county. The case appears from the opinion.</p>

<p>Set-ore against Defamation oe Deputy Postmaster, What not. — In an action on a deputy postmaster’s bond, to recover for an alleged defalcation, a claim of such deputy postmaster against the United States for rent, etc., can not be pleaded as a set-off unless it is alleged to have been allowed and adjusted by the postmaster-general, and to have been presented to and disallowed by the auditor, or not to have been presented to him because of some unavoidable accident;</p>

<p>ERROR to the district court of Dona Ana county. The opinion states the case.</p>

The opinion states the case. 1. The court erred in not allowing the motion for continuance, because it was shown that a just and… Held: in an action by tbe United States against an individual debtor, that a mere general charge of an aggregate indebtedness certified from tbe books of tbe treasury department, é. g., “to accounts transferred from tbe books of the second auditor for tbis sum, standing to bis debit under said contract on tbe books of the second auditor,…

The case appears from the opinion. 1. The district court of the state of Kansas had no jurisdiction of the subject-matter, nor of the person of the defendant. The jurisdiction of the district court of the state of Kansas is created and limited by statute: Const. State of Kansas; Laws Kansas Territory, 122-126; Laws Kansas, 1861, pp. 55, 67, 123; General Stats. State of Kansas, 1868, pp. 47, 630.

<p>Indictment does not Chahge Two Ojtenses, When. — An indictment charging that the defendant “did freqrient and keep a gaming table, commonly known as monte, at which said gaming table the said, etc., did then and there play with cards the said game, commonly, etc., with various persons then and there being, whose names are to the grand jurors aforesaid unknown,” etc., alleges but one offense, that of keeping a gaming table, and can not be quashed for duplicity. ,</p>

<p>Appeal from the district court for the county of Santa Ee. The opinion states tbe case.</p>

<p>Service or Attachment by Leaving at Abode. — Service of an attachment issued on an affidavit showing that the defendant has absconded and absented himself from his usual place of above, may be made by leaving a true copy thereof at the usual place of abode of the defendant with some free person over the age of fifteen years, and publication is not necessary.</p>

The opinion states the facts. Every court of record lias power at a subsequent term to amend its records, and make them conform to, and exhibit the truth; Sheppard r. Wilson, 6 How. (U. S.) 260. There is no fixed time within wliich verdicts and judgments may be amended; even after error brought, if within a reasonable time, such amendments may be allowed: Murphy v. Steivart, 2 Id. 263.

Error from Socorro county. The case is stated in the arguments of counsel and in the opinion. This is an action where the defendants in error applied to the court below in vacation for a writ of mandamus on the plaintiff in error, to compel him to do certain acts as mayordomo of an acequia.

Ebeob to the district court for the first judicial district.

Appeals from the first judicial district. The plaintiffs in these causes appeal to this court from the judgment of the district court for the first judicial district, at the February and July terms, 1873, sustaining the defendants’ demurrer to their petition.

<p>Appeal. The case so far as material to tbe points decided appears from tbe opinion.</p>

The opinion states the case. The defendants and appellees, Quirina Baca and Filomeno Gallegos, husband and wife, some time in the year 1854 or 1855, separated under articles of agreement, made in writing and solemnly executed.

Appeal. Tbe opinion states tbe case. 1. Horse-racing is prohibited by statute, and a note when tbe consideration is a wager on a horse-race is void: Comp. Laws New Mexico, sec. 4, p. 246, whole act; Rev. Stat. Mo. 539, whole act; Shropshire v. Glascoclc et al., 4 Mo. 536; Boyanton v. Curie, Id. 599; Hayden v. Little, 35 Id. 422.

Tbe case is stated in tbe opinion. The appellant, defendant below, was tried upon an indictment for murder, charging him with killing Francisco Provencea, in tbe county of Santa Fe, on tbe seventeenth day of November, A. D. 1877, by shooting him with a pistol. Upon the trial he was found guilty of murder in the first degree.

<p>Evidence not in Bill or Exceptions not Considered. — Evidence offered or introduced on the trial, whether oral or written, forms no part of the record on appeal unless incorporated in a bill of exceptions.</p> <p>Depositions do not Form Part or Record, When. — Depositions referred to in the bill of exceptions as the “following depositions,”'but not embodied therein, otherwise than by referring, in. brackets, to certain pages of the transcript certified by the clerk, where the answers, but not the questions, are given, do not form part of the record on appeal for the purpose of reviewing objections to their competency.</p> <p>“ Skeleton Bills oe Exceptions.” — The authentication of “ skeleton, bills of exceptions,” containing blanks for the evidence to be filled in by the clerk, is disapproved by this court.</p> <p>General Objections to Entire Depositions. — The supreme court will not, on appeal, consider general objections to entire depositions appearing in the bill of exceptions, not specifying the particular grounds of objection, although those grounds of objection are pointed out in the assignment of errors.</p> <p>Objection that Evidence Insuitjtcient 'j'o Sustain Verdict, not Considered, When. — The supreme court will not consider an objection that the evidence on the trial was insufficient to sustain the verdict unless the evidence is embodied in the bill of exceptions, and unless it appears by such bill that the objection was passed upon by the court below, by overruling a motion for a new trial or in some other way; and a statement in the transcript certified by the clerk that a motion for a new trial on that ground was made and overruled is not sufficient.</p>

The opinion states the case. 1. Tbe court erred in refusing to give tbe defendant a list of tbe jury twenty-four hours before trial as asked in amotion filed and now found in the record: State v. Klinger, 46 Mo. 224; Laws of N. M., 1866, p. 154. 2. The court erred in refusing to give the instructions to the jury in writing: Comp. Laws of N. M., p. 20.0; State v. Cooper, 45 Mo. 64; Bouv.