Volume 12 — New Mexico Reports

S. Baker, Associate Justice. The court erred in overruling defendant's application for a continuance. The application having been legally sufficient, the continuance should have been granted. Territory of New Mexico v. Kinney, 3 N. M. 656; Linn County v. Morris, 67 Pac. 295; 4 Ency. PI. and Pr., pp. 905 and 906.

W. Crumpacker, Associate Justice. The law will not presume fraud. Fraud is never presumed, but must be proved by the party alleging the same. Clark v. White, 12 Peters 196; Farrar v. Churchill, 135 IT. S. 609.

S. Baker, Associate Justice. Entering the land in question in pursuance of sec. 3753 under claim of right as the first occupier, was an appropriation, and continuous, open, adverse possession for the period mentioned in our statute of limitations, ten years, would ripen into a title by adverse possession as against tbe whole world.

Parker, Associate Justice. Maggie MeMillen- has no interest in the estate of John MeMillen, and John Joseph MeMillen is his sole heir. Barnett v. Barnett, 9 N. M. 205, 50 Pac. 337. The civil law of Spain and Mexico concerning descents and distributions, wills and testaments was in force in New ,Mexico when this Territory became a part of the United States, and remains in force to this day unless changed by statute. Barnett v. Barnett, supra.

W. Crump acker, Associate Justice. All defenses, either legal or equitable, of the garnishee or third parties may be interposed against the garnishor that might have been set up against his debtor, McLaughlin v. Swan, 18 How. (U. S.) 217; Schuler v. Israel, 120 U. S. 506; Milwaukee By. y. Brooks Works, 121 U. S. 430; Bolling Mill Co. y. Ore & Steel Co., 152 U. S. 596; Drake on Attachment, sec. 527.

Baker, Associate Justice. The provisions of the statute making directors liable for the debts of corporations, contracted in excess of their capital stock, being in derogation of the common law and highly penal, are to be strictly construed, and the penalty provided in such statutes can be enforced only when the party seeking to impose it has brought himself within every requirement, and the statutory provisions will not be extended by intendment.

Appeal and cross-appeal from district court of Bernalillo county, before Benjamin S. Baker, Associate Justice.

Baker, Associate Justice. While the land is still subject to the control of the government it is beyond the reach of the Territory’s power to tax. Railway Co. v. Prescott, 16 Wall. 603. Lands on which the costs of survey have not been paid, and for which the United States has not issued a patent to the company, are exempt from State taxation.

Parker, Associate Justice. The warrant sued upon belongs in the class referred to in the proviso clause at the end of section four, chapter 68, Session Laws of 1889, should not bear interest after July 1, 1889, and will not support the judgment herein, because it is not shown that there is or has been at any time since said first day of July, 1889, a surplus of county funds in the treasury of the county over and above what is necessary to defray current expenses.

W. Crump acker, Associate Justice. It has been held that a tax against the estate of a decedent is absolutely void. Territory y. Perea (N. M.,) 62 Pac. 1094. The right of the appellant to recover in this case is purely statutory and is fully authorized by the statute in force at the time of this sale. Black on Tax Titles, Sec. 464.

McMillen, Associate Justice. ON REHEARING. The charge of the court was an erroneous statement of the effect of the evidence, and an invasion of the province of the jury as to the construction which they might give to the facts mentioned.

of San Miguel county, before William J. Mills, Associate Justice. By the omission of the words, “then and there being,” after the word “company,” the indictment fails to allege ownership in the Red River Valley Company, or other person, at the time of the alleged larceny.

W. Crumpacker, Associate Justice. There are no common-law crimes against the United States. 6 Am. and Eng. Ency. of Law (2 Ed.), 289. The common-law crime of manslaughter has no existence in the courts of the United States. At common-law “Manslaughter is the unlawful killing of another, without malice, express or implied.” 1 Archibald’s Cr. Pr. and PL, 225; U. S. v. Bettilini, 24 Fed.

' Error to the district conrt of Grant county, before Frank W. Parker, Associate Justice.

McFie, Associate Justice. Upon the premature abandonment of the enterprise of a savings and loan association, from whatever cause, the original contract between the association and the borrower cannot be carried out, and therefore neither party is bound to a literal fulfillment of the contract. 4 American and Eng.

McFie, Associate Justice. The argument contained in this brief is based entirely upon the language of the statute under consideration and no other authorities are cited except Territory of New Mexico' ex rel. Bursum v. Marcelino Garcia, 10 N. M. 43.

<p>Appeal from the district court of Bernalillo county, before J. W. Crumpacicer, Associate Justice.</p> <p>Are the lands of the Pueblo Indians in New Mexico taxable?</p> <p>United States v. Jose L. Luciro, 1 N. M. 422; United States v. Juan Santisteven, 1 N. M. 583; United States v. Archibald Ritchie, 17 How. (U. S.) 525; secs. 1893 and 1895, Comp. Laws N. M. 1897; United States v. Joseph, 1 N. M. 593; s. c., 94 U. S. 614.</p> <p>The enjoyment of political privileges is a concomitant of the imposition of the burden of taxation.</p> <p>State v. Ross 7 Yerg. (Tenn) 74; MeShing-go-me-Sia v. State, 36 Ind. 310-317.</p> <p>Do our laws allow these Indians to participate equally with us in our civil and political privileges?</p> <p>“The Pueblo Indians of this Territory for the present, and until they shall be declared by the Congress of the United States to have the right are excluded from the privilege of voting at the popular elections of the Territory, except in the election of overseers of ditches to which they belong, and in the elections proper to their own Pueblos to elect their officers according to their ancient customs.”</p> <p>Compiled Laws of 1897, sec. 1678.</p> <p>The answer alleges that these Indians are wards of the government, and the demurrer admits it. What are wards of the government?</p> <p>United States v. Kagama, 118 U. S. 375-385; U. S. v. Boyd, 68 Fed. Rep. 577, 83 Fed. Rep. 547; Audelor General v. Williams, 94 M'ich. 180; Elk v. Wilkins, 112 U. S. 94, 106; Felix v. Patrick, 145 U. S. 330.</p> <p>Under the law of Spain and-Mexico the power to alienate land was withheld from the Pneblo Indians upon principles of public policy.</p> <p>Sunol v. Hepburn, 1 Col. 255; Hicks v. Coleman, 25 Col. 122; Wau-pe-mau-qua v. Aldrich, 28 Fed. 489, 499.</p> <p>Under the Spanish decree of March 18, 1811 (Halls Mexican Law, p. 169,1 Dublau y Lozano, p. 340) the Indians were given exemption from taxation, and under article 8 of the treaty of Guadalupe Hidalgo, they were guaranteed that their property rights should be inviolably respected.</p>

S. Baker, Associate Justice. The right of suit upon the original cause of action against individual members of the firm after suit or judgment upon said cause of action against the firm is expressly provided for in section 2943 of the Compiled Laws of New Mexico for 1897. As to parties it may be of interest to consider the provisions of sections 2894, 2895, 2942, 2943 and 2946, of the same statute.

Baker, Associate Justice. Parties defendant charged with fraud cannot disclaim, but must answer the charges, the plaintiff being entitled to such answer under oath. 1 Daniels Chancery PL & Pr., 788. This suit is brought in time under allegations of fraud against defendants. Compiled Laws N. M’. 1897, sec. 2925. The doctrine of res adjudicaba does not apply in this case. 9 Ency.

W. Ckumpackbr, Associate Judge. The plaintiff by demurring to defendants answer, admitted the truth of the allegations and matters properly pleaded by defendants, and consequently there is only one issue, and that is whether or not an imperfect grant confirmed by the court of Private Land Claims, which at the time of the assessment for purposes of taxation, had been surveyed, but the survey thereof had not been approved by the said land Court is subject to taxtion.

B. McMillen, Associate Justice. The power to issue bonds for the purpose stated by the relator is to be found in section 2402, in paragraph 6, Laws of 1887. If these bonds were issued without an ordinance providing for a sinking fund and a levy for interest, then under most of the authorities they would be absolutely void. Under some authorities the bonds would be void but the right of action under the contract would still exist. Under either theory mandamus could not issue.

Baker, Associate Justice. The Mechanics Lien Law being remedial in its nature, and equitable in its enforcement, is to be liberally construed in favor of claimants. Ford v. Springer Land Association, 8 N. M. 37; Springer Land Association, 168 N. S. 527. If the materials furnished became a part of the machinery for which they were used, claimants are entitled to a lien for the same.

Baker, Associate Justice. The demurrer to the bill should have been sustained, because it appeared therefrom that the complainants had a legal remedy. Albright v. T. S. & R., R. R. Co., 8 N. Mex. 422; Stanton v. Catron, 8 N. Mex. 365; Laswell v. Kitt, 70 Pac. (N. M'.) 561; Scott v. Carlestein Co., 76 Fed. 86; Oelrichs et al. v. Spain, 15 Wall 228; 11 Enc. PI. & Pr., 460 and citations. The law does not deprive one of the right to sell his property to pay his debts.

Baker, Associate Justice. A judgment by default or “nil Meet” cannot be taken by the plaintiffs after' the action is at issue, whether the issue be one of law or fact. Hicks v. Vann, 4 Ark. 526; Reed y. Stale Bank, 5 Ark. 194; Alexander y. Stewart, 23 Ark. 18; Knaebel v. Slaughter, 34 Pac. 198, 7 N. M. 221; Knowles v. Fritz, 58 Wis. 216.

<p>Appeal from the district court of Santa Fe county, before John R. McFie, Associate Justice.</p> <p>The probate courts of New Mexico have no original chancery jurisdiction. What is jurisdiction?</p> <p>Rapalje and Lawrences Dictionary; Bouvier’s Dictionary; Websters Dictionary; 12 American Ency. of Law, p. 244; U. S. v. Arredonds, 6 Pet. 709; Brown on Jurisdiction, p. 1.</p> <p>Jurisdiction as it affects the subject-matter:</p> <p>Brown on Jurisdiction, pp. 4, 22 and 50.</p> <p>Section 1868 of the Organic Act provides: “The Supreme Courts and district courts respectively, of every Territory, shall possess chancery as well as common-law jurisdiction.”</p> <p>The Organic Act also provides: “The jurisdiction of the probate courts shall be as limited by law.”</p> <p>Perea v. Barela, 5 New Mexico 470; Clayton v. The People of Utah Ty., 132 U. S. 632; State Capital Printing Co. y. Co. Com. of Grant Co., Oída. Ty., 56 Pac. 957; Martin Y. Territory of Okla., 56 Pac. 712:</p> <p>The fundamental basis of equitable jurisdiction is a want of a full and adequate remedy at law.</p> <p>1 Pomeroy on Equity Jurisprudence, p. 113.</p> <p>The probate courts of New Mexico have no common-law jurisdiction or any kind of jurisdiction whatever to try and determine the question of title to property in the hands of an administrator, or belonging to an estate, when the title or ownership of such property is claimed by a third party.</p> <p>Ferris v. Higley, 20 Wall. 375; Perea v. Barela, 5 N. M. 470; Brown on Jurisdiction, p. 336; Wells on Jurisdiction of Courts, p. 293; Moss y. Sandefur, 15 Ark. 381; Mabley v. Andrews, 55 Ark. 222; Clark v. Shelton, 16 Ark. 474-482; Marston v. Paulding, 10 Paige (M Y.) 40; Theller v. Such, 57 Cal. 447; Shumevay y. Cooper, 16 Barb. (N. Y.) 556; Homer’s Appeal, 55 Conn. 113; Edwards v. Mounts, 61 Tex. 398; Wise v. O’Malley 60 Tex. 588; M'erricks Est., 8 Watts and Serg. 420; Wadsworth v. Chick, 55 Tex. 241; In re Estate Burton, 63 Cal. 36; Estate of James, 23 Cal. 417; Estate of Orr, 29 Cal. 101; Estate of Delaney, 37 Cal. 176; In re Haas Estate, 31 Pac. 893; Ex parte Casey, 71 Cal. 269; Chamberlains Appeal, 70 Conn. 377; Mallorys Appeal, 62 Conn. 223.</p> <p>Courts of probate can neither try title to property, nor determine questions of estoppel.</p> <p>Gold’s Case, Kirbys Report 100; Hewitt’s Appeal, 53 Conn. 24-38; Parsons v. Lyman, 32 Conn. 570; Homer’s Appeal, 35 Conn. 1.13; First Nat. Bk. v. Balcom, 357; Knowlton y. Johnson, 46, Mo. 480-489; 47 Mo. App. 241; Edward Proctor v. Atkyns, 1 Mass. 320; Pond et al. v. Pond et al., 13 Mass. 417; Farnham v. Thompson, 14 Minn. 336; Mossean v. Mossean, 40 M'inn. 239; State v. Probate Court, 33 Minn. 94; Comstock y. Matthews, 55 Minn. Ill; Johnson y. Jones, 47 Mo. App. 241; Conley y. Truitt, 63 Mo. App. 357; In re Estate of Stuart, 67 Mo. App. 64-65; Woerners Probate Law, sec. 151; Hoehn y. Struttman, 71 Mo. App. 404; Hill v. Hardy & Williams, 34 Miss, 289; Gage v. Gage, 29 N. H. 546; Ela v. McConihe, 35 N. H. 279; Wood y. Stone, 39 N. H. 574; In re Walker’s Will, 136 N. Y. Court of App. 29; Wadsworth y. Chick, 55 Tex. 242; Timmins v. Bonner & Long, 58 Tex. 561; Wise y. O’Malley, 60 Tc-x. 588, and cases there cited; Andrews y. Wheaton, 23 Conn.'116; Cottrell y. Thompson, 15 N. J. L. 345; State y. Bonney, 34 Maine 225; Dick y. Hatch, 10 Iowa 384; Richardson y. Hunter, 23 La Ann. 257; Cerro Gordo Co>. v. Wright, 59 Iowa 485; Town y. Caldwell, 39 Am. Dec. 750-754.</p> <p>The proceedings of the probate court were absolutely yoid.</p> <p>Wells on Jurisdiction of Courts, p. 11; Eliott v. Pearsall 1 Pet. 340; Brown on Jurisdiction p. 7; In re Christensen’s Estate, 53 Pac. 1007. See also Gilpin y. Page, 18 Wall. 351.</p> <p>A yoid judgment is no judgment and no rights of property are gained under it.</p> <p>Freeman on Judgments, sec. 117; Cambell v. McCahan, 41 111. 45; Roberts y. Stowens, 7 Bush. 295; Huís y. Buntin, 47 111. 397; Dane’s Abb. Chance 146 Ark. 5; Sherrill y. Goodrum, 3 Humph. 430; Andrews v. State, 2 Sneed 550; Hollingsworth y. Bagley, 35 Tex. 345; Morton y. Root, 2 Dillon C. C. 312; Com. Bank y. Martin, 9 S.. & M. 613; Doe v. McDonald, 27 Miss. 610; Hargis v. Morse, 7 Kas. 417; Kramer v. Holsten, 55 Miss. 243.</p> <p>Hence no appeal was necessary and the failure to appeal could not prejudice the plaintiffs.</p> <p>Sheldon v. Newton, 3 Ohio St. 494; White-well v. Barbier, 7 Cal. 54; 12 Ency. of Law (Old series), p. 31P; Hard v. Shipman, 6 Barb. (N. Y.) 621; Bolton y. Jacks, 6 Robt. (N. Y.) 183; Bloom v. Burdick 1 Hill (N. Y.) 130; Freeman on Judgments, sec. 117; Paul v. Wills, 69 Tex. 261; 12 Ency. of Law, p. 138; Hanson v. Wolcott, 19 Kas. 207.</p> <p>The Act of the Legislature of New Mexico', approved March 11, 1903, is void because it goes beyond the limitation prescribed by the Organic Act. Ferris v. Higley, 20 Wall. 375:</p> <p>Only points raised by the demurrer can be considered in this appeal.</p> <p>Walker y. Sanvinet, 92 U. S. 90; Lake Co. v. Sutliff, 97 Fed. 270; Van Gunden v. Virg. Coal Co., 52 Fed. 838; 2 Cyc. L. and P., 661, note 36 (Ed. 1896), and p. 672; Williams v. Thomas, 3 N. M. 324; Crabtree v. Segrist, 3 N. M. 278.</p> <p>Liberal constructions are given to complaints demurred to for want of facts sufficient to constitute a cause of action.</p> <p>6 Cyc. PI. & PL (Ed. 1896), p. 346, and note 4; Richards v. Edick, 17 Barb. (N. Y.) 260; Pierson v. McCurdy, 61 How. (N. Y. Sup. Ct.) 134; Oleryy. Brown, 51 How. Pr. 92; Graham y. Camman, 13 How. Pr. 360; Ball y. Fulton Co., 31 Ark. 379; Darby v. Cabanne, 1 Mo. App.,126; State v. Carroll, 63 Mo. 156; Rathburn v. Burl. Ry., 16 Neb., 441; Mills v. Rice, 3 Neb. 76.</p> <p>All leases are personal estate and go to the executor or administrator.</p> <p>Smith v. Dodds, 35 Ind. 432; Faler v. McRae, 56 Miss. 227; Keating v. Condon, 68 Pa. St. 75; Wileys Appeal, 8 W. & S. (Pa.) 244; McCormick y. Stephany, 41 Atl. 840-842; Warner Admr., p. 593, sec. 277, n. 9, and authorities there cited; 1 Woemer Admr., p. 231, sec. 110, n. 1, and authorities there cited; 7 Am. & Eng. Ency. of Law, p. 260-1, note Í, etc.</p> <p>The complaint demurred to shows that the action taken by the probate court complained of in this case, was concerning personal property held by the decedent in trust, and not affected by the special limitation provided in section 2062, Compiled Laws New Mexico, which applies only to claims against the estate. Defendants below claimed only their own estate, held in trust by the administrator of the decedent.</p> <p>Roach v. Caraffa, 25 Pac. 22-24; Cal. Code, sec. 1493, p. 1123, and sec. 1500, p. 1126; Tyler y. Mayer, 30 Pac. 196, and 27 Pac. 160; Fallon v. Butler, 21 Cal. 24 (18 Am. Dec. 140) ; Verdier y. Roach, 31 Pac. 556; Estate of McCausland, 52 Cal. 568, 577.</p> <p>The executor or administrator of a decedent can stand in no better position than his decedent did, as to such estate.</p> <p>7 Am. & Eng. Ency. of Law, p. 418, 419, and note; 7 Am. & Eng. Ency. of Law, p. 247, note 1; United States v. Cutts, 25 Fed. Cases 745; Thompson v. Waite, 45 Maine 445; Green y. Collins, 6 Ire (N. C.) L. 139; Johnson y. Overman, 2 Jones (N. C.) Ch. 182; Trecothic y. Austin, 4 Mason, U. S. C. C. 16; Shakspear y. Fidelity Co., 97 Pa. St. 173; .Johnson y. Ames, 29 Mass! 173, 180; Andrews v. Bank of Cape Ann, 85 Mass. 313, 314; Schouler Ex. and Admr., secs. 205, 244, 245; Cooper v. White, 16 Ga. 554; Taylor v. Benham, Ex., 5 How. 233, 276; Attorney Gen. v. Brigham, 142 Mass. 251; In re Shaw Estate, 16 Atl. 666; Boon Admx. v. Bank, 84 N. Y. 83, 87:</p> <p>Section 2015, Compiled Laws New Mexico, gives the decree of the Probate Court, when attacked collaterally, the force and effect of decrees of courts of general jurisdiction.</p> <p>Sec. 2015, Comp. Laws N. M. 1897; Simmons v. Saul, 138 IT. S. 439, 453, 459; 19 Am. & Eng. Ency. of Law., pp. 206, 207, note 2.</p> <p>And it is therefore unnecessary for the probate court in this case to show the record of any jurisdictional facts.</p> <p>Freeman on Judgments, sec. 124, and authorities there cited.</p> <p>Settlemier v. Sullivan, 97 U. S. 444; Black on Judgments, sec. 218, and authorities there cited.</p> <p>The appellants in this case should have appealed from the judgment of the probate if they were aggrieved by it.</p> <p>Compiled Laws of New Mexico 1897, secs. 928 & 2014; Session Laws 1899, p. 177; Hamlet v. Abell, 113 U. S. 449.</p> <p>Proceedings in probate courts should not be attacked collaterally.</p> <p>Bachelder v. Fiske, 17 Mass. 464; Emerson v. Thompson, 16 Mass. 429; Trecothie v. Austin, 24 Fed. Cases 168.</p> <p>This is a suit in which plaintiffs as alleged heirs of Leon Caron, and beneficiaries of his estate, are asking a court of equity to turn over to them alone, an alleged asset of that estate, without accounting or payment of estate debts, wjiile the estate as such is still pending in the probate court, undisposed of.</p> <p>Sec. 928, Compiled Laws, as amended by Session Laws N. M. 1899, p. 177.</p> <p>All leases though for a term of a thousand years, are personal estate, and go to the executor or administrator, and not to the heir.</p> <p>Probate courts in the exercise of incidental powers, may try titles, contrae contracts, partition lands, and do many other acts involving the exercise of chancery powers, which they cannot do except incidentally to settle some estate of some deceased person before it for settlement.</p> <p>Board of Public Works v. Columbia College, 17 Wall. 521; Robinson v. Fair, 128 U. S. 53, 85, 86; McWillie v. Yan Yactor 35 Miss. 445; Woener Administrator, sec. 142, p. 323, and sec. 155, pp. 351-2, and authorities there cited; Webster v. Seattle Trust Co., 33 Prac. 970, and 35 Pac. 1082,1085.</p> <p>If a court has jurisdiction it is altogether immaterial how grossly irregular or manifestly erroneous its proceedings may have been; its final order cannot be regarded as a nullity and cannot therefore he collaterally impeached.</p> <p>C. L. N. M. 1897, secs. 928, 2014; Simon v. Saul, 138 U. S. 439, 453, 459; 19 Am. & Eng. Ency. Law, p. 206-7; See, also, as bearing upon this case: In re Burdicks Estate, 40 Pac. 35; In re Cleary’s Estate, 44 Pac. 569; A. T. & S. F. R. Co. v. Martin, 7 N. M. 158.</p> <p>STATEMENT OF THE CASE.</p> <p>The material facts in this case are that on or about the sixth day of July, 1892, the New Mexico Mining Company leased to Leon Caron and others, by six specific leases, certain mining claims known as Alpine, Pat Cullen and Maverick, and also known by other names, which said leases were to run for a period of ninety-nine years, and provided for the payment of certain rents and certain obligations with reference to the amount of work to be done, etc., Leon Caron died intestate on the fifteenth day of September, 1892. All of the plaintiffs and four of the defendants, named Demarais, are heirs of Leon Caron. The defendant Alfred N. Randall applied for letters of administration of the estate of Leon Caron, which letters were granted, and the said Randall was duly qualified as such administrator. At the time of the institution of this suit said Randall had not rendered his final report as administrator. The title to the property described in the leases was in the New Mexico Mining Company at the time said leases were made. On or about the second day of April, 1895, one Patrick Cullen filed his petition in the probate court of Santa Fe county, New Mexico, the object and purpose of which was to have said probate court decree that the interest of the said Leon Caron, deceased, in and to said leases belonged to said petitioner. Said petitioner, Cullen, alleged in his petition “that on or about the twenty-second day of September, 1889, he deeded to said Leon Caron and Alfred N. Randall the property described in said leases, to-wit, the Alpine, Pat Cullen and Maverick mines.” Plaintiff further says: “Complainant would further show that said transfer was made for the purpose of authorizing said Caron and Randall to act as his agents in the sale of said property and as his' attorneys in fact in the management and control thereof, and for the further purpose of securing from the Ortiz mining grant a lease or quitclaim to said property. Complainant would further show that there was no other consideration whatever for the execution of said deed— that since the execution thereof the said Leon Caron departed this life, without having as the agent, sold or disposed of the property — as the records now stand the deed is an encumbrance upon said property.” The petitioner further alleged that the leases procured by Caron and others hereinbefore mentioned were procured in pursuance of said deed of conveyance and for the uses and benefit of the petitioner. On the day that shid petition was presented to the probate court of Santa Fe county, without the issuance of any process, without the appearance of any one for the plaintiffs in this case, save and except the administrator, the said probate court proceeded to hear and determine the said cause upon the petition, no other pleading being filed, and thereupon entered judgment in favor of complainant against Alfred N. Randall, administrator of the estate of Leon Caron, deceased, which judgment or decree was in' effect, “that whereas, the said Patrick Cullen, complainant, comes into court and presents his petition praying that Alfred N. Randall, administrator of Leon Caron, deceased, convey to said complainant a quitclaim deed of all the interest which said Leon Caron, deceased, had in and to the following mining claims (here describing the property in controversy) and it appearing to the court that the interest now in the name of Leon Caron, deceased, was obtained by him as agent for Patrick Cullen to be sold, and the proceeds to go to Patrick Cullen, as it appears by written and verbal testimony offered and by the written contracts executed on the fifteenth day qf December, 1889: It is therefore ordered that the said administrator, Alfred N. Randall, execute to Patrick Cullen a quitclaim deed for the interest in the mining claims'and leases which stand in the name of Leon Caron, deceased.....” From this judgment or decree of the probate court no appeal was taken and more than ninety days elapsed before the filing of the complaint in this cause.</p> <p>On the day following the rendition of the judgment or decree of the said probate court, the said Randall, administrator of said Caron, deceased, in pursuance of said decree, executed and delivered to Patrick Cullen, a quitclaim deed of the premises described in the said leases. On the eighth day of April, 1895, Patrick Cullen died and said Alfred N. Randall was appointed administrator of his estate. Subsequently the said probate court decreed that Mathew Cullen was the sole heir of the said Patrick Cullen, deceased, and that all the rights which the said Patrick Cullen had, if any, in the property inured to him. On the seventh day of March, 1898, Matthew Cullen conveyed the property described in the said leases to Joseph B. Mayo, Wilson S. Chapman and The Old Reliable Gold Mining Company.</p> <p>On the twenty-seventh of September, 1900, the petition of Telesfore E. Caron, and others, was filed in the district court of Santa Fe county, New Mexico, setting forth all the facts hereinbefore stated. This petition concluded with the prayer that all of the proceedings had in the probate court of Santa Fe county as hereinbefore mentioned be set aside and declared to be null and void, and that the conveyance made by said Randall, as administrator of the estate of Leon Caron in pursuance of the decree of the said probate court be declared to be null and void, and that the plaintiffs in this case, as well as the four named defendants, Lucille, Philo P., Estelle and Ethel M. Demarais be adjudged and decreed to be the sole owners and beneficiaries of whatever interest in the.property rights and privileges the said Caron, deceased, was vested, under and by virtue of the six leases hereinbefore specified, and that all assignments and conveyances made by the said Randall, administrator of the estate of said Patrick Cullen, and Mathew Cullen to Joseph B. Mayo, William Chapman and The Old Reliable Gold Mining Company, defendants, be set aside and declared for naught.</p> <p>To this complaint the defendants filed a demurrer, alleging that it appears upon the face of said complaint that said complaint does not state facts sufficient to constitute a cause of action, in that the said complaint shows that the title in and to the subject-matter of said action claimed by plaintiffs in said complaint is not and never was in plaintiffs and said minor defendants or any of them at any time,- “That said complaint shows that the title sned on in this cause was properly and lawfully disposed of by the probate court of the county of Santa Fe, New Mexico, before the commencement, of this suit;” that the title to the property in controversy was lawfully vested in the Old Reliable Gold Mining Company and that the plaintiffs and four defendants named had no title therein; that the said complaint shows that no appeal had been taken from the probate court from the decree or judgment thereof; second, that the court had no jurisdiction over the subject-matter of said action in that said complaint shows that the exclusive jurisdiction over the subject-matter of this suit is in the probate court of Santa Fe county, New Mexico; and prayed that the said action be dismissed.</p> <p>The court sustained the demurrer and the plaintiffs refused to plead further; judgment of dismissal was thereupon entered and an appeal prayed and allowed.</p>

Mills, Chief Justice. The court did not correctly instruct the grand jury as to their duties in considering and returning indictmentó, and the weight of evidence and degree of proof necessary to find same, as required by law. C. L. 1897, secs. 975, 976, 981, 982 and 967; charge of Justice Field in S. v. Winzer, 2 Sawyer 667, 670; 1 Bish. N. Crim Pro., sec. 867, par. 2, as the modern rule.

Baker, Associate Judge. The salary provided for the district attorney of Bernalillo county to be paid by the county is $600 per annum. Comp. Laws 1897, sec. 2578. Held: as a matter of law, that the plaintiff had no claim on his first cause of action and dismissed the complaint as to that, and awarded judgment for plaintiff on the second cause of action, for $102.87. Plaintiff appeals.

McFie, Associate Justice. The venue was improperly changed to the district court for Santa Fe county, and that court should not have entered any judgment in the cause. There was not a substantial compliance with the statutes. Compiled Laws of 1897, secs. 2879 to 2884, inclusive. Notice of application for a change of venue is essential where the statute provides for such notice. Marble v. Bonhotel, 35 111. 249; 4 Ency.

S. Baker, Associate Justice. Tbe statute appointing tbe defendants to office is not a rightful exercise of legislative authority..

Baker, Associate Judge. Mistaken assumptions of law or fact by the Legislature are not binding upon the courts. In the matter of John Hersom, 39 Maine 481-482; Postmaster General v. Early, 12 Wheat. 148; Van Norman v. Jackson, 45 Mich. 204; Byrd v. State, 57 Miss. 243, 34 Am. R. 440; Davis v. Delpit, 25 Miss. 445; The Amelia, 1 Cranch, 35.; S&ltens v. Tobias, 3 Paige 344; Lasher v. People, 183 111.. 226, 47 L. R. A. 802.

Baker, Associate Justice. The first step to be taken in proving claims against an estate, is to have suck claims stated in detail, sworn to and filed by claimant. Sec. 27 of chap. 90, Laws 1889 of N. M., which amended sec. 1399 of the Compiled Laws of N. M'. 1884; Clancy v. Clancy, 7 N. M. 411. This action is barred by the statute of limitations of New Mexico. Secs. 2913 and 2914, Comp. Laws 1897.

M'cFie, Associate Judge. Under the practice in New Mexico, the petition is a part of the alternative writ. Peres v. Barber, 7 N. M. 223; 13 Ency. PI. and Pr., 671-73. All- material allegations well pleaded in the petition, and not denied or answered in the answer, will be deemed and taken as true. Linch et al. v. State (Neb.), 47 N. W. 88. An argumentative denial is no- denial. Woodruff v. N. Y. & N. E. R. Co., 20 At. 17. Facts must be pleaded and not conclusions.

McFie, Associate Judge. Article Í4 of the Bill of Rights, adopted by the Legislature' of New Mexico; July 12, 1851, declares, among other things, that “no retroactive law, or any law impairing the obligation of contracts shall be made.” This principle has been embodied in the Compiled Laws of 1865, chapter 85; Compiled Laws of 1884, sections 2584, etc.; Compiled Laws of 1897, sections 3756-3771-3779.

Baker, Associate Judge. All tbe requirements for taking and perfecting an appeal are deemed jurisdictional, and must be strictly complied with whatever be the method named. 2 Ency. PI. and Pr., 16, and cases cited. One partner should sue the other, on balance struck, at law. Bindley on Partnership, 734-735; George on Partnership, 306-307; Sikes v. Work, 6 Gray, (Mass.) 433-4; Wheeler y. Wheeler, 111 Mass. 257-50.

Baker, Associate Justice. Jurisdiction must be acquired in the manner prescribed by statute. 12 Ency. PI. and Pr., 120, 125. Jurisdiction of the person may be acquired by consent; but jurisdiction of the subject-matter of an action or other legal proceeding may not be acquired by consent or stipulation. 20 Ency. PL and Pr., 609: Bartel v. Hoey',, 3 Col., 279; Molindin v. Colo.

Baker, Associate Judge. The Clerk of the Supreme Court can make no charge for services rendered to. the Territory. Sec. 7, Chap. 81, Laws of 1899, p. 185. The taxes sued for were levied in each of the years 1893 to 1896, both inclusive, and included both Territorial and county taxes (Session Laws of 1895, p. 46) ; and in 1897, sec. 4184 of the Comp.

Parker, Associate Judge. The finding of the court that the allegations of fraud and misrepresentation on the part of Lindauer, in the matter of procuring the issue of 165 shares of the capital stock of the Sapello Cattle Company without consideration, contained in subdivision IV of the third amended complaint, is not sustained by the evidence, is manifestly against and clearly not supported by the evidence, and so subject to review. Rush v. Fletcher, 70 Pac.

McFie, Associate Judge. This appeal was duly taken January 5, 1903, within one year from the date of the final judgment of the district court. Laws of N. M'. of 1901, ch. 99. Not being taken thirty days before the first day of January term, 1903, the appeal was returnable at January term, 1904. Comp. Laws 1897, sec. 3140; Sec. 896, C. L. 1897; Blyen v. U. S., 13 Wall. 595; Eng. and Am. Ency.

Mills, Chief Justice. STATEMENT OF FACTS. The appellant was indicted at- the October term, 1903, for an assault upon one Boyd Hill with a loaded pistol, with intent to murder him, the said Boyd Hill, on the eleventh day of June, 1899. The indictment was filed on the eighth day of October, 1903, warrant was issued and served the same day. Defendant pleaded not guilty and the trial was get for October 9, 1903.

Mills, Chief Justice. Errors stated in such a general and indefinite way as not to point out to the trial court the matters complained of so that they could have been corrected at the trial or on motion will not be considered in the Supreme Court.

McFie, Associate Justice. This is not an inspection law within the meaning of the exception found in the Constitution of the United States, art. 1, sec. 10, par. 2. All such laws must be subject to the revision and control of Congress. Gibbons v. Ogden, 9 Wheat. 1203; Turner v. Maryland, 107 U. S. 38-55; Gibbons v. Ogdon, 107 U. 8. 49-50. All definitions of inspection laws preclude any purpose which can be accomplished by this New Mexico statute.

Mills, Circuit Judge. Uninterrupted, continuous, hostile, visible,, actual, open, notorious, exclusive occupancy of land under a claim of right, for ten years, bars the right of the holder of the paper title and vests the title absolutely in the adverse occupant. Maxwell Land Grant Company v. Dawson, 151 U. S. 566; Probst v. Domestic Mission, 129 U. S. 132; Pueblo of Nambe v. Romero, 10 N. M. 58; Solomon v. Yrisarri, 9 N. M. 480.

<p>Original petition for mandamus in Supreme Court.</p>

<p>Original Petition for Mandamus in Supreme Court.</p>

Appeal, from the district court of Socorro county, before Daniel H. McMillen, Associate Justice. The notice in this case did not inform the defendant that his property would be sold to satisfy the judgment that Avould be rendered against him if he failed to appear. Smith v. Montoya, 3 N. M. 13, 22 and 23; Comp. Laws, sec. 2701. As to the attachment affidavits. Drake on Attachments, sec. 440; Durrasett’s Aclm., v. Hale, 38 Mo. 346; Atkins v. Arnick, 25 Mo. 404.

Mills, Chief Justice. Where a statute confers a new right privilege or immunity, the grant is strictly construed, and the mode prescribed for its acquisition, preservation, enforcement and enjoyment is mandatory. Sutherland on Statutory Construction, sec. 458; U. S. v. Arredondo, 6 Pet. 725. In the construction of a statute every word is, if possible, to be given some effect. Allen v. Louisiana, 103 U. S. 80, at 84-85; Market Co. v. Hoffman, 100 U. S. 112.

MoFie, Associate Justice. The existence of fraudulent intent must always he proved by evidence which is competent against the grantee. No person should be allowed to defeat his transfer by his own acts or words. Bump Fraud. Conv., par. 599, citing Miner v. Phillips, 42 111. 128; Clements v. Moore, 6 Wall. 299; Foster v. Wallace, 2 Mo. 231; 35 Mo. 202; 53 Mo.