Volume 13 — New Mexico Reports

Baker, Associate Justice. Tbe appellant pleaded not guilty, which by force of the statute, was an admission that he was in possession of the land at the time of the institution of the suit. Compiled Laws, N. M. 1897, Sec. 3166. Before he could recover he was bound to prove his right to the possession of the premises. Compiled Laws N. M. 1897, See. 3168.

S. Baker, Associate Justice. The complaint was filed February 28, 1903. The bond, a copy of which is made a part of the complaint, states positively that it is due April 1, 1904.

Parker, Associate Justice. Under the statutes of New Mexico the plaintiff' in error is entitled to recover one hundred dollars. Secs. 3199-3200 and 3208 Compiled Laws 1897. An agency once established is presumed to exist unt.il notice is given by the principal to the contrary. Parsons on Contracts, Yol. 1 p. 45, (6th Ed.) An agent who has power to do a particular act, has also the power to do whatever belongs to the doing of such act, or is necessary to its performance.

<p>ON WRIT OP PROHIBITION.</p>

Baker, Associate justice. The district court should have granted plaintiffs in error an appeal and fixed a supersedeas bond and allowed it to be given. Sub-section 161 of Section 2685, Compiled Laws, N. M., 1897; Sections 883 and . 3136, Compiled Laws, N. M., 1897; Great Western Telegraph Co. v. Burnham, 162 U. S. 342. This was a matter subsequent to the judgment and is not properly assignable as error.

W. Crumraoker, Associate Justice. These conveyances were from .husband to wife. They were made when the husband was in a failing condition, and being pressed by his creditors by suits and otherwise. The husband continued in possession. All these cireumtances are badges of fraud. Bump on Fraudulent Conv. (4th Ed.), Secs. 49, 50, 63 and 288.

Baker, Associate Justice. Causes of action founded upon contract shall be revived by an admission that the debt is unpaid, as well as by a new promise to pay the same,'but such admission or new promise must be in writing, signed by the party to be charged therewith.

EL'Pope, Associate Justice. If the taking is under a bona fide claim of right there can be no larceny. • 9 Tex. App. 164; 4 Colo. 182; 41 S. W. E. 606; Smith v. Shultz 1 Scam. (111.) 490; Will v. S. 9 Mo. 663; State v. Gresser 19 Mo. 247; 36 Iowa 344; Stuart v. People, 73 111. 20. The intent to steal and the act must exist at the same moment. Bishops Criminal Law, Yol. 1 (8th Ed.) Secs. 206-7 and notes 3 and 4.

Baker, Associate Justice. Residence in the county is a necessary qualification to the holding of the office of county assessor. Mecham on Public Officers, Secs. 82 and 67; State v. McMillan, 23 Neb. 385; 36 N. W. 387. It was not necessary to raise a purely jurisdictional question specifically. It was necessary that the court should hold that it had jurisdiction on appeal in order to decide the case. Great Western Tel. Co. v. Burnham, 162 U. S. 342.

Parker, Associate Justice. The points relied on for a reversal of this ease were not raised during the trial, but were presented upon the motion for a new trial, and opportunity then given the court below to correct the errors, which is sufficient for a consideration of the points by this court. Territory v. Anderson, 4 New Mexico, 213_ NO AUTHORITIES CITED.

W. Crumpacker, Associate Justice. The discharge of the principal debtor operated to discharge the defendant, who' was a surety. Brandt on Suretyship, Sec. 145; Auehampaugh v. Schmidt, 70 Iowa 644; Dorsey v. Wayman, 6 Gill. 59; State v. Blake, 2 Ohio St. 147. As samples of reasoning of those courts which take the opposite view we cite. Willis v. Chowning, 90 Tex. 617; Bull v. Coe, 77 Cal. 54. As to accord and satisfaction, see 1 Cyc.'307.

.Appeal from the district court of Bernalillo county, before Benjamin S. Baker, Associate Justice. It is true that when a part of a provision of a statute is void and another part valid, and they can be separated from each other, courts are authorized to give force and effect to the valid part of the statute; but no such separation can be made in this case. Virginia Coupon Cases, 114 TJ. S. 304; Trade Mark Cases, 100 TJ. S. 92.

McFie, Associate Justice. In criminal cases arraignment and pleá are absolutely necessary. The object of arraignment and plea is to obtain an issue which constitutes a point for a jury ti decide upon, and they must appear upon the record. Browning v. State, 54 Neb. 203; Brown v. State, 98 Ala. 85; People v. Corbett, 28 Cal. 330 and 331; Brown v. State,' 108 Inch 413; Parkinson v. People, 135 111. 402; State v. Hunter, 43 La.

Pope, Associate Justice. The court erred in refusing to instruct the jury to Teturn a verdict of not guilty as requested by counsel for appellant because there was no evidence tending to show that appellant ever at any time engaged or offered to engage in the practice of medicine. Bishop’s New Criminal Procedure, Yol. 1, Sec. 977. Chapter 40 of the Session Acts of 1903, is unconstitutional, as being class legislation. State v. McKnight, 131 N. C. 723; 59 L. R. A. 187.

<p>Appeal from the district court of San Juan county, before John R. MoFie, Associate Justice.</p>

Parker, Associate Justice. It is competent for the states to change the form of the remedy, or to modify it as they may see fit, provided no substantial right secured by the contract is thereby impaired.

Pope, Associate Justice. Under the statutes of New Mexico, where stock is killed or injured by the operation of a railroad company’s trains, will negligence be imputed to the company by reason of mere 'failure to fence its right of way, or will negligence be imputed only as to the operation and management of its trains in such instances.

Baker, Associate Justice. Malice is not presumed from the use of a deadly weapon. Territory v. Lucero, 8 N. M. 543. Murder is the unlawful killing of a human being with malice aforethought, either express or implied. Sec. 1060, Compiled Laws, New Mexico, 1897; Wharton’s Criminal Evidence, Secs. 722 to 738; State v. Yaughan, 39 Pac.

Parker, Associate Justice. No authorities cited except Territorial statutes. Community ditches under the New Mexico statutes are involuntary quasi corporations; public in nature and use. 15 Eng. & A. M. Ene. of Law, (1st Ed.) p. 955; 1 Beach on Public Corporations, Secs. 3 and 4; Eliott on Municipal Corporations, Secs. 3-4-71 and 72. Such corporations are not liabe for torts. Elmore v. Drainage Commissioners, 135 111. 260; 1 Beach on Public Corporations.

McEie, Associate Justice. Where a material issue of fact is raised by the pleading, the court cannot strike out the issue or the answer in toto, or otherwise dispose of it than by a jury trial. Hodges et al., v. Easton et al., 106 IT. S. 408; Thompson v.- Erie Railway Co. 45 N Y.. 468; Wayland v Ti^sen, 45 N. Y. 281; Perea v. Colo. Nat. Bank, 6 N. M. 1; Baylis v. Travelers’ Insurance Co. 113 H. S. 316; The Idaho and Oregon Land Imp Co. v. Bradbury, 132 IT.

<p>Appeal from the district court of San Miguel county, before William J. Mills, Chief Justice.</p> <p>The indictment does not sufficiently describe the money alleged to have been embezzled.</p> <p>State v. Kroeger, 47 Mo. 531; Bishop’s Criminal Practice, Sec. 703, 704; State v. Morey, 2 Wis. 362; State v. Longbottoms, 11 Humph. (Tenn.) 39; Bice Cr. Ev. 451; State v. Denton, 22 Atl. 305; State v. Ward, 2 S. W. 191; Tyler v. State, 16 S. W. 302.</p> <p>In ease of money unless there is a statutory provision to the contrarjp there must be some description.</p> <p>McClain Cr. L. 2 Vol. 660.</p> <p>Value must be averred, or such form of expression must be used as that value is necessarily implied.</p> <p>Hope v. Commonwealth, 9 Met. (50 Mass.) 135.</p> <p>A charge of embezzling money is not sustained by proof of embezzling a check, without evidence that it has been converted into money.</p> <p>2 McClain Cr. L. p. 645 and 652 — note; Reg. v. Keena, L. R. 1 C. C. 113; 2 McLain, p. 604; Lancaster v. S. 9 Tex. App. 393.</p> <p>In prosecutions for larceny, embezzlement, false pretences, etc., a description of the property stolen, embezzled or obtained is essential to the charge, and must be borne out by the evidence.</p> <p>Clark’s Criminal Law, 335 and 338, and note 42; Clark’s Criminal Law, 227 and 228 and note 227.</p> <p>Where a person is described as unknown, and it appears that his name could have been ascertained by the exercise of reasonable diligence, this will constitute a variance.</p> <p>Clark’s Crim. Prac. p. 340; Blodget v. State, 3 Ind. 403; Presley v. State, 24 Tex. App. 494 (6 S. W. 540); see also Waterman v. Waterman, 34 Mich. 490; Mann v. Mann, 14 Johns, N. Y. 1; Commonwealth v. Moore, 132 Mass. 250; Thalheim v. State, 38 Pla. 169; Block v. State, 44 Tex. 620; Bryan v. Brandreth, L. R. 16 Eg. 475.</p> <p>In criminal law, as in statutes with regard to embezzlement, swindling, theft, etc., the meaning of the term “money” has been confined to that which is legal tender, as legal tender coin, or legal tender treasury notes of the United States. And so in other connections the term has been confined to legal tender currency.</p> <p>Bartley v. State, 53 Neb. 310; Thompson- v. State, 35 Tex. Crim. App. 511; Jackson v. State, 34 Tex. Crim. App. 90; Coulter v. State, 37 Tex. Crim. App. 284; Otero v. State, 30 Tex. App. 450; Menear v. State, 30 Tex. App. 475; Taylor v. State, 29 Tex. App. 499; Lewis v. State, 28 Tex. App. 140; Wood-ruff v. State, 66 Miss. 309; Murphy v. State, 49 Ark. 39, 3 S. W. 891; Borton v. Brooks, 25 Ark. 215; Hanauer v. Gra}^ 25 Ark. 350.</p> <p>A further fatal variance relates to the averment of ownership.</p> <p>Bank of Republic v. Millard, 10 Wall. 155.</p> <p>As to the necessity of full and complete instructions , by the court to the jury.</p> <p>C. L. 1897, Secs. 2992, 2994; Ty. v. Nichols, 3 N. M. 103; Aguilar v. Ty. 8 N. M. 496; Ty. v. Friday, 8 N. M. 204;-S. v. Mc-Caskey, 16 S. W. Rep. 512; Cadey v. State, 4 Tex. App. 238.</p> <p>This indictment is drawn-under Section 1125 of the Compiled Laws of N. M., 1897. The gist of the offense of embezzlement under this section is the having in possession of money belonging to the Territory or county, and the conversion of such money to the use of the holder. The statute applies to any person, and is not limited to agents or officers.</p> <p>' Brown v. State, 18 Ohio St. 496; Reed v. State, 16 Tex. App. 586.</p> <p>The allegation of the amount of money embezzled, with the further allegation that a better description is unknown is sufficient.</p> <p>Territory of New Mexico, Appellee v. George W. Maxwell, Appellant, 2 N. M.; Fleener v. State, 58 Ark. 98; People v. McKinney, 10 Mich. 53; Dominick v. Dnited States, 121 Fed. 640; State v. Combs, 47 Kas. 136; People v. Cobler, 108 Calif. 538; Jones v. Commonwealth, 13 Bush (Ky.) 356.</p> <p>The term “mone}^ as used in the indictment has a legal significance, and is not to be construed in any technical sense.</p> <p>Taylor v. Robinson, 34 Fed. 678; State • v. Downs, 148 Ind. 327; State v. Sooner, 103 Iowa 112; Commonwealth v. Tuckerman, 10 Gray 173; Commonwealth v. Meade, 160 Mass. 319; People v. Gallagher, 35 Pac. 80.</p>

Parker, Associate Justice. A fair and impartial jury is the right of a defendant in a criminal cause and if by reason of any practice whatever he is deprived of that right a court of review should see to it that his right is protected. Stauder v. West Yirginia, 100 TJ. S. 303; Neal v. Delaware, 103 TJ.' S. 370; Yirginia v. Eives, 100 TJ. S. 314.

McFie, Associate Justice. A promissory note is a written promise to pay a certain sum of money, at a future time unconditionally. Bouviers Law Dictionary; 1 Daniel on Nego. Instruments, 28; 3 Kent. 74; Chitty on Bills & Notes, Secs. 53-54. If payable upon an event which is contingent, or if otherwise conditional it is not negotiable. Story on Bills, Secs. 55 & 56. A promissory note must be payable at all events, not dependent upon any contingency.

Baker, Associate Justice. An unauthorized trespass upon the lands of another, or unauthorized intermeddling with the goods of another is an actionable trespass. 1 Sutherland on Damages, p. 12, Ca. Ci.; 3 Stuherland on Damages, p. 364; Bishop Non-Contract Law, Sec. 819; Wood, Landlord and Tenant, p. 917. There are no accessories in trespass; all are .jointly and severally, liable.

S. Baker, Associate Justice. All that this court decided on the former appeal as to Champion’s 'rights, was that his intervening petition was insufficient. In equity cases petitions of intervention should contain-all the material facts relied upon, and should show a -right to the particular relief asked by the petitioner, -and must' show a case of substantial equity.

The declarations and conduct of third persons at the very time of the accident or injury which they witness are admissible. Jones on Evidence, Secs. 874-875-876; Galena & Co. R. R. Co. v. Fajr, 63 Am. Dec. 324, 16 111. 558; State v. Walker, 78 ]^o. 380; Kleiber v. Peoples Ry. Co., 107 Mo. 240.

Mills, Chief Justice. Even in cases where experts are called upon to give an opinion based upon their own personal observation or examination, the facts upon which the opinion is founded must all be stated; otherwise the witness might be giving an opinion which would have great weight with the jury upon a state of facts very different from those found by them in the case on trial.

H. Pope, Associate Justice. Before suit can be brought for possession in any class of cases except where possession was obtained by force, intimidation, fraud or stealth, three days’ notice to quit must be given in writing to the defendant.

Pope, Associate justice. If it was the right of the jury, upon the evidence to find the prisoner guilty of either one of the three offenses named, as the court told them, it was the duty of the court to instruct fully as to what constituted each offense so.that they might have a correct standard by which to determine the degree when 'they had found the facts from the evidence.

before Ira A. Abbott, Associate Justice. The defendant was charged with having, as a notary public, made a certificate, Imowingly, which contained false statements. Such offense is within the meaning of the statute. U. S. v. Moore, 60 Fed. Rep. 739; U. S. v. Cameron, 3 Dak. 141; U. S. v. Staats, 8 How. 46; U. S. v. Hartman, 65 Fed. Rep. 491. The indictment charged no offense against the laws of the territory.

Mills, Chief Justice. It was error to allow evidence to go to the jury which, without casting any light on the offense charged in the indictment, tended strongly to convict the defendant of -another charge, thus prejudicing him before the jury. People v. Carpenter, (Col.) 68 Pac. 1028;. People v. Perazzo, 74 Cal. 116, 28 Pac. 64; People v. Barnes, 48 Cal. 551; People v. Hartman, 62 Cal. 562; State v. Gottfreedson, 64 Pac. 523.

Error from the district court of Santa Ee county, before John K. MoEie, Associate Justice. Discovery in the sense of the reward is the making certain of the fact .of guilt by verdict. Byer v. Stockwell, 14 _ Calif. 134; Wood on Limitations, Sec. 119; Angelí on Limitations, Sec. 115. The purpose of conviction is to ascertain the fact of detection. Borough of York v. Eoscht, 23 Pa. St. 391; Náson v. Staples, 48 Me. 127; Cómmonwealth v. Bichards, 17 Pick. 296.

court of Valencia county, ' before Ira.A. Abbott, Associate Justice. An attorney cannot transfer an executive agreement whereby he undertakes to supply professional ability and knowledge without the consent of. the other contractural party. 3 Page on Contracts, Sec. 1262, Ca. Ci.; 1 Parsons on Contracts p. 248, Note C; Delaware, etc., v. Diebold Safe Co. 133 U. S. 488; . Arkansas Co. v. Belden Co., 127 TJ. S. 379; Burck v. Taylor, 152 IJ.

McFie, Associate Justice. The survey of the route and the location of the line of the railroad is a part of the work of construction. O. R. I. & P. R. Co. v. Grinnell, 51 Iowa, 476 p. 482; K. C. & S. E. Ry. v. K. S. & S. W. Ry. 31 S. W. 451, p. 453, S. C. 129, Mo. 69; Sioux City, etc.,' Ry. v. Chicago, etc., Ry. 27 Fed. 770-774.

Abbott, Associate Justice. For all intents and purposes, Pabla Garcia de Míreles, grandmother of plaintiff, was the mother of said minor plaintiff, as the plaintiff’s own mother died when he was very young. Pabla died, and in her will, appointed E. A. Miera as guardian of plaintiff. See. 1439, Compiled Laws of New Mexico for 1897.

<p>Appeal from the district court of Sandoval county, before Ira A. Abbott, Associate Justice.</p>

Abbott, Associate Justice. The parties on appeal are restricted to the theory on which the case was tried in the court below. Chavez v. Myers, 11 N. M., 342; Heish v. Bell & Co., 70 Pac. 572; 2 Ency. PI. & Pr. 576, Cyc. Yol. 2 p. 670: The case was before the court below on the allegations of plaintiff’s complaint, the answer of defendant, the reply of plaintiff and the evidence of plaintiff. On •issues so made he should have rendered judgment for plaintiff.

Baker, Associate Justice. To malee the assignment of a mortgage good at law, there must be a formal instrument, conveying the legal title. 1 Jones on Mortg. Sec. 787; Sanders v. Oassady, 5 Southern Rep. 503; Adams v. Parker, 12 Gray 53; Warden v. Adams, 15 Mass. 233. An equitable assignment of a mortgage may be made by a sale of it, without either a formal transfer of the mortgagees interest in the property or an indorsement of note. 1, Jones on Mortg.

Error from the district court of Santa Fe county, before John R. McFie, Associate Justice. The term of court was still open when this motion for a new trial was filed. Sec. 2685 of Compiled Laws N. M., Sub-Secs. 103 and 104. No adjournment of the term is shown by the record. Grable v. State, 2 Green (Iowa) 559; Stovall v. Emerson, 20 Mo. Ap. 322; 1 Ency. PI. & Pr. 243, 245; 21 Ency.

Parker, Associate Justice. A court of equity will not allow the complainant by a supplemental bill to reconstruct entirely the case made by his original bill, by the introduction of an additional case, but the new facts alleged in the supplemental bill, must be such merely as go to support and strengthen the allegations of the original bill.

Error from the district court of Lincoln county before Edward A. Mann, and Ww. H. Pope, Associate Justices. The defendant in an action at law may jilead an equitable defense. Sec. 507, Code of Civil Procedure of New York; Sub-Section 41 of Art. 4 of Code of , Procedure, New Mexico; Dobson v. Pearce, 12 N. Y. 156 at p. 164; Bank of China v. Morse, 44 App. Div. 435, N. Y.; Madison v. Benedict, 73 App. Div. 112, N: Y.; Wendling v. Pierce, 27, App.

Mann, Associate Justice. The judgment is void, not merely voidable, and is therefore open to collateral attack. The property must be described.

Abbott, Associate Justice. An action lies in a case like this for failure to accept drafts or to have them accepted and paid. Exchange Bank'v. Hubbard, 62 Fed. 112; Merchants Bank v. Griswold, 72. N. Y. 474. . The court erred in failing and omitting to make findings of fact in said canse.

PROHIBITION. The questions arising in this case are very important. They are as follows: ‘ First. Can a court pass upon the rights of any person-claiming to hold an office to which he has been elected by.,the people of the Territory of New Mexico, without any cause pending in court in which there can be a judicial hearing and from which an appeal can be taken? Second.

Parker, Associate Justice. The attachment laws of New Mexico authorize the issuance of alias writs of attachment. Comp: Laws, N. M., 1897, Sec. 2697, and Secs. 2871, 2727. In Iowa it has been held that such writs may issue under the inherent power of the court.

<p>WRIT OP PROHIBITION.</p>

Abbott, Associate Justice. REMOVAL OF SHERIFFS. The power to remove a sheriff from office is vested in the district court, upon the- application, under oath, by any person interested in- the -subject matter. The statute provides a comprehensive manner of judicial pro- ■ ceedings.

<p>Appeal from the district court of Bernalillo county, before Ira A. Abott, Associate Justice.</p>

<p>Appeal from the district court of Bernalillo county, before Ira A. Abbott, Associate Justice.</p> <p>The governor cannot be invested with the power of removal from office upon charges.</p> <p>Spencer v. County of Sully, 33 N. W. 98; Bd. of Com’rs. v. N. P. R. R. Co., 10 Mont. 420; Ellison v. State, 125 Ind. 496; Foster v. Kansas, 112 U. S. 206; Kennard v. Louisiana, 92 U. S. 480; Taylor, v. Beck-ham, 178 U. S. 548; Wilson v. North Carolina, 169 U. S. 586; Sinking Fund Cases, 99 U. S. .761; Rhode Island v. Mass., 12 Peters, 718; Carter v. Durango, 16 Colo. 536; State v. Wallridge, 119 Mo. 390; 24 S. W. 460; Kilburn v. Law (111 Cal.) 43 Pac. 615; Hart v. Duluth (Minn.) 55 N. W. 118; Cooley’s Cons. Lim. 110; Bd. of Aldermen v. Harrow, 13 Colo. 460, 16 Am. St. Rep. 216; People v. Stewart (74 Mich.) 16 Am. St. Rep. 646; Ferry v. Kings County, 2 Wash. Rep. 341; Page v. Hardin, 8 B. Munroe 672; Arlde v. Board of Com’rs. (W. Ya.) 23 S.; Mechem on Public Officers, Sec. 455; Dullam v. Wilson, 53 Mich. 392; 51 Am. Rep. 128; Police Com’rs. v. Pritchard, 36 N. J. L. 114; Ha3burn’s Case, 2 Dali. 407; United States v.' Ferrerira, 13 How. 52; Co-Op. Ed. 47.</p> <p>If the tenure is fixed by lair, or if the officer is appointed to hold during the. pleasure of some other officer or board than that appointing him, the appointing power can not arbitrarily remove him.</p> <p>Mechem on Public Officers, Secs. 445, 447 and 448.</p> <p>Tlie power of removal for cause is a special one, and it must be strictly pursued.</p> <p>Id. Section 450; Dubuc v. Yoss, 92 Am. Dec. 527-8; Commonwealth, ex rel. Bowman v. Slifer, 25 Penn. State Eeports 23, 64 American Decisions 680.</p> <p>“But the power of removal so conferred must be confined within the limits prescribed for it, and must be pursued with strictness. Hence it can be exercised only for the cause specified and in the manner and upon the conditions fixed. And authority to remove for cause cannot be construed as an implied authority to remove at pleasure.”</p> <p>Mechem on Public Officers, Sec. 452; Mead v. Treas., 36 Mich. 416; Coolev’s Cons Lim. 136, 137.</p> <p>“In deciding this question (as to the authority of the governor), recurrence must be had to the constitution. That furnishes the only rule by which the court can be governed. That is the charter of the governor's authority. All the powers delegated to him by or in accordance with that instrument, he is entitled to exercise, and no others.”</p> <p>Field v. People, 3 111. 79-80; Note 3, page 137, Coolejf’s Cons. Lim.; See also, Clarke v. People, 15 111. 213.</p> <p>“The governor has no power to remove elective offi cers unless he strictly pursues the methods pointed out by the constitution and laws of this state.”</p> <p>People v. Therrien, 45 N. V. 78-79.</p> <p>That the power to remove is, limited by statute is also held in</p> <p>Gorham v. Luckhett, 6 B. Munroe (Ky.) 146; Ex-Parte Lehman, 60 Miss. 967; State er rel. Atty. Gen. v. McClain, 58 Ohio St. 313, 50 N. E. Bep. 907; Commonwealth v. Shaver, 3 M. & S. (Pa.) .338; Territory v. Ashenfelter, 4 N. M. 134-5.</p> <p>Tf he attempted to exercise the power of removal under the statute, then the question arises what are the provisions of the statute and had he the power to remove the appellant from office for any acts committed, during ■ a prior term of office.</p> <p>23 Am. and Eng. Ency. of Law, page 445; Speed v. Common Council of City of Detroit, 57 N. W. Eeporter 407; 98 Mich. 360; 39 Am. St. Eep. 555; 22 L. E. A. 842; Thurston v. Clark (Cal.) 40 Pac. Eep. 436.</p> <p>“Acts of drunkenness between the election and qualification of an officer should not be allowed in evidence.”</p> <p>Triggs v. State, 49 Texas 645; Cited in 23 A. & E. Ency. of Law, 445.</p> <p>“An officer will not be removed for acts done prior to his present term of office, since to do so would be to deprive the people of their right to elect their officers.”</p> <p>Conant v. Gragan, 6 N. Y. St. Eep. 322; Guden v. Dike, 75 N. Y. Sup. 787; Speed v. Common Council, 98 Mich. 360, 57 N. W. 406, 22 L. E. A. 842, 39 Am. St. Eep. 555; State v. Walker, 68 Mo. App. 110; State v. Common Council, 25 N. J. Law, 536; Com. v. Shaver, 3 Watts & S. 338; State v. Common Council, 53 Minn. 238; 56 N. W. 118, 39 Am. St. Eep. 595; People v. Weygant, 14 Hun. 546; People v. McGuire, 27 App. Div. 596; 50 N. Y. Sup. 520; Troop, Pub. Off. C. 16; State v. Walker, 68 Mo. App. 119.</p> <p>Acts of omission or commission may furnish grounds * for civil action, but in the absence of corrupt motive or design, they do not furnish ground for summary removal from office.</p> <p>23 A. & E. Ency. of Law, 443; In re King, 6 N. Y. Supp. 401; State ex rel. Broath v. Moores, 73 N. W. 395.</p> <p>This case also holds no inquiry can be made in acts committed before the term of office began.</p> <p>State v. Bourgeois, 16 So. Eep. 655; Cummins v. Missouri, 4 Wall. 277, 320, 323, 326, 328, 331; Ex Parte Garland, 4 Wall. 333, 377, 378; Ex Parte Mulligan, 4 Wall. 73; Y, XIY and YTT Amendments to the Constitution.</p> <p>“An appointment to office bjr the executive is complete upon the delivery of the commission. * * * We think that when the governor appointed and commissioned the plaintiff he gave him prima facie title to the office. * * * The commission of the governor when issued must be taken at least, as prima facie evidence that the person holding it is lawfully entitled to the office.”</p> <p>Conklin, v. Cunningham, 7 N. M. 445; Eldodt, v. Territory, 10 N. M. 141; Armijo v. County Commissioners, 3 N. M. 477; Armijo v. Baca, 3 N. M. 490.</p> <p>It is better that it be understood that the acts and orders of those without the legal right to exercise official trust must pass the ordeal of the closest scrutiny, and be ratified only so far as justified, by public policy and necessity.</p> <p>IJ. S._ v. Alexander, 46 Fed. 731.</p> <p>“It was the right of relator to be admitted to the office under his prima facie title, and hold it pending-contest.”</p> <p>State ex rel. Jones v. Oates, 86 Wis. 639.</p> <p>The doctrine that a man may constitute himself an officer de facto by forcibly holding possession of the room assigned to the use of the officer, or of the books and papers pertaining to an office, is subversive of the principle upon which recognition is accorded to the acts of de facto officers.</p> <p>Becker v. People, 156 111. 301; State v. Callihan, 4 N. Dak. 481; Steinback v. State, 38 Ind. 483; State v. Perkins, 139 Mo. 106; State v. Lane, 16 R. I. 620; In re Sawyer 124 IT. S. 200; IT. S. v. Alexander, 46 Fed. 731; Becker v. People, 156 111. 301; State v. Callihan, 4 N. Dak. 481; Steinback v. State, 38 Ind. 483; State v. Perkins, 139 Mo. 106; State v. Lane, 16 R. I. 620; La Pointe v. O’Malley, 46 Wis. 35; In re Sawyer, 124 D. S. 200; White v. Berry, 171 U. S. 366; Georgia v. Stanton, 6 Wall. 50.</p> <p>There are legal propositions which it is much more important to have settled definitely than to have them settled in any particular way, and that there*is no class of cases which more imperatively demand the rigid adherence bjr courts to the principles of prior decisions than those which present themselves to the minds of the masses of the people in a political or quasi political aspect. Ir does not fend to increase the confidence of the public generally in the administration of justice, if courts in cases involving the title to office refuse.to administer settled principles without regard to the change in the personnel or political affiliation of their members.</p> <p>Cochran v. MeCleary, 22 Iowa 75; ITagner v. TTeyberger, 7 Watts & S. 104; Updegraff v. Crans, 47 Pa. St. 103; Tappen v. Grajy 9 Paige Oh. 506; Same case, 7 Hill, 259; 2 P>each, Mod. Eq. Jur. Sec. 670-71; Taylor v. TCerchoval, 82 Fed. 497; Frost v. Thomas, 56 Pac. 899; Fleming v. Guthrie, 3 L. B. A. 53; Lane v. Anderson, 67 Fed. 563; Heean v. Hutchins, 160 111. 550; State v. Hawkins, 44 O. St. 98; Huels v. Hahn, 75 Wis. 468.</p>

H. Pore, Associate Justice. The rule is well settled that where the degree or grade of punishment depends upon the value of the property stolen or concealed, the value of said property must be properly proved on the trial of the case, and that the jury by their verdict must find what the value of the property really is.

Parker, Associate Justice. No joinder in erroT, which, under Section 3140, C. L. N. M., 1897, is required to be filed within four days after the first day of the present term, has been filed in the case. Joinder in error being required by our statutes, no rule on appellee was necessa^r, and, it not having joined the error is confessed and the cause should be reversed. Murdock v. Townsend,,. 1 Col. 33.

Parker, Associate Justice. It is only where there is no conflict of the evidence on material matters that the court is justified in directing a verdict returned for either party. Lau v. Fletcher, 104 Mich, 295; O’Con-nor v. Yitherby, 111 Cal. 523; Chicago B. & Q. B. Co. v. Payne, 59 111 535; McQuown v. Thompson, 5 Colo. App. 466; Colorado Coal & I. Co. v. John, 5 Colo.

Abbott, Associate Justice. Plaintiffs return was insufficient as a basis of assessment. Bank v. Bailey, 39 Pac. 84. The Albright assessment was not valid. Owensboro Bank v. Owensboro, 173 IJ. S. 680; National Bank v. Stone, 174 IT. S. 434. There being no valid assessment, it is the duty of the assessor or collector to make one. New Mexico v. U. S. Trust Co., 174 IJ. S. 549-51; U. S. Trust Co. v. New Mexico, 183 IJ.

In this Territory, the grounds of demurrer are fixed hv sub-section 35 of section 2685, C. L. 1897. “Where the causes for which parties may demur to pleadings are fixed by statute, those causes are exclusive and no other groimds of demurrer will be entertained by the court.” 6 Ene. PL '& Pr. 309; Benton- v. St. Louis, 1 Wash. T. 215; Mayhew v. Bobinson, 10 Plow.

Abbott, Associate Justice. REPEALS BY IMPLICATION ARE NOT FAVORED. Implied repeals are not favored. The implication must be necessary. Held: Smith v. Dunn, 68 Cal. 54 The word “fees” in its popular and common acceptation, includes the commissions, estimated, by a percentage, allowed by law on sums of money received or collected. Philadelphia v. Martin, 125 Pa. St. 591, 17 Atl. Eep. 507; Austin v. John, 62 Tex. 182.

Abbott, Associate Justice. If the treasurer and ex-officio collector, the two offices being united by Chapter 60, Acts of 1897, was entitled to receive “for all services four per centum of the amount of taxes and licenses collected by him,” was this repealed by the act of 1901, imposing upon the sheriff certain duties and authorizing him to charge four per centum upon such licenses, and making it his duty to pay the same over to the treasurer and ex-officio collector after…

H. Pope, Associate Justice. Where the mortgagor remains in the possession of mortgaged goods which are in themselves perishable, either from natural causes or by virtue of the use to which they are put, such mortgage is void against attaching or execution creditors.

R. McFie, Associate Justice. The act upon which the complaint is predicated is Section 1, Chapter 16, Laws of 1903, p. 27, which reads as follows: “All persons who may engage in any itinerant trade, by sample or otherwise, selling at retail to individual purchasers who are not dealers in the article sold, except in the selling of maps, books, newspapers, fuel, fruits and domestic machinery, shall be considered peddlers within the meaning of this act.” Sehiff v. State, 84…

EL Pope, Associate Justice. The court erred in his finding that there was no testimony to show possession of the premises- for the statutory period.

Abbott, Associate Justice. Various objections were urged to the indictment, but it is believed that’only one of them requires any consideration by counsel on this appeal, that being the one upon which, as we understand, the indictment was quashed.