Volume 14 — New Mexico Reports

<p>Appeal from the First Judicial District Court, before John R. McFie, Associate Justice.</p> <p>In a Territory Congress may legislate as a state does for its municipal organizations. First National Bank of Brunswick v. Yankton, 101 U. S. 129; Insurance Co, v. 356 Bales of Cotton, 1 Peters, 511; Church Latter Day Saints v. United States, 136 U. S. pp. 1-63; Murphy v. Ramsey, 114 U. S. 15.</p> <p>In the exercise of its powers of sovereignty over the Territories, Congress lias power to enact legislation prohibiting the sale of liquor in toto. Endleman v. United States, 86 Fed. Rep. 456.</p> <p>The privilege of buying whiskey at all times and all places is not a right, privilege or immunity of citizenship, within the meaning of the Constitution of the United States. Pervear v. Commonwealth, 5 Wall., 479; Barte-meyer v. Iowa, 18 Wall., 132; Beer Co. v. Mass., 97 U. 8. 32; Muzzier v. Kansas, 123 II. 8. 662; Kidd v. Pearson, 128 U. S. 23; Eilenbecker v. Plymouth Co., 134 U. 8. 40; Crowley v. Christenson, 137 U. S. 86.</p> <p>A Pueblo Indian, by reason of his status as a citizen of the Territory, does not possess an inalienable right to aid in the consumption of liquors. The fact that the offense was committed off of the Indian Pueblo makes no difference. U. S. v. Miller, 105 IT. 8. 946. •</p> <p>Pueblo Indians are citizens of the United States, and entitled to the same rights and amenable to the same laws that other citizens are. United States v. Joseph, 94 U. S. 619 L. Ed. 295; Delinquent Tax Case, 76 Pac. 307 (N. M.); United States v. Santistevan, 1 N. M. 583;' United States v. Varela, 1 N. M. 593; Ex-Parte Crow Dog, 109 U. S. 556-572, affirming IT. 8. v. Joseph, supra; United. States v. Richie, 58 IT. S.( 525.</p> <p>The Act of Congress, January 30, 1897, 3 Fed. Statute, Annotated, 384, is a regulation of the police power and not a revenue act. The police power is one of the reserve powers left to the several states and in this particular case to the Territory. Re Hoff, 197 IT. 8. 488.</p> <p>A citizen of the Territory occupies the same position with respects to his rights and privileges and his obligations to the laws under the Constitution of the United States, that a citizen of any state of the Union docs. The law must apply to all citizens with the same force and protect all alike. Murphy v. Ramsey, 114 IT. 8. 47. •</p> <p>That the said Pueblo Indians are under the supervision of an agent, is a fact set up in the indictment, which is contrary to the law as found by this court. Delinquent Tax Case^ 76 Pac. 309.</p> <p>The appellee should haye been indicted under the Territorial Statute and not the Act of Congress.</p>

H. Pore, Associate Justice. .. In every bail-bond in a criminal case the offense must be described with sufficient clearness to point out unmistakably the particular crime for which the accused is required to answer; but if it have a technical name it will be sufficient to specify the offense so nomine. Montgomery v. State, 33 Tex.'179; Belt v. Spaulding (Ore.) 20 Pac. 827; Tousey v. State, 8 Tex. 174; Waters v. People, 4- Colo.

PI. Pope, Associate Justice. It was the duty of the trial court to determine the motion of appellant to require the plaintiff to give security for costs. Comp. Laws 1897, Sec. 2892, Sec. 2685, Sub-Secs. 55, 104; National Distilling Co. v. Cream City Importing Co'. (Wis.) 56 N. W. 864; Collier v. Morgans L. & T. R. Co. (La.) 5 So. 537.

Ii. Pope, Associate Justice. Under the laws of New Mexico an open account can only bear interest at thé rate of six per cent per annum, commencing six months after the delivery -of the last item therein. Compiled .Laws 1897, Sections 2550 and 2552.

An appeal cannot be made returnable more or less than ninety days after the appeal is taken. Chapter 114, see. 2, Laws of 1905. Service of citation by publication is nowhere authorized. Section 2, Chapter 114, Laws of 1905. When no provision is made bjr law for a different mode, personal service is required. Elliott App. Proe. 183; Earl v. Me. Veigh, 91 IT. S. 508 & ca. ci.

<p>Appeal from the District Court for Chaves county, before W. H. Pope, Associate Justice.</p>

Parker, .Associate Justice. Indictment for assault with deadly weapon ' must allege that gun was loaded. Chapman v. State, 78 Ala. 463, 56 American Reports 42. It is fatal in criminal pleadings to omit to set forth the facts constituting the crime charged. IT.

McEie, Associate Justice. A thing done by agreement is a matter of .contract, rather than tort, or a violation of plaintiff’s rights. But replevin is an action strictly ex delictu, an action in tort. 24 Am. and Eng. Ency. of Law p. 477; Wall v. DeMitkie-wiez, 9 App. Cas. (D. C.) 109; Christy v. Ashloelc, 93 111. Ap. 651; Rector v. Chevalier, 1 Mo. 345; Heeht v. Her-mann, 81 Mo. App. 370; May v. Newingham, 17 Pa. Sup. Ct. 469.

Appeal of trustee from allowance of claim of Pauline-W. Myer. Appeal of Pauline W. Myer, from not having her claim preferred. Appeal of J. Bias Lucero and wife from disallowance of their claim. Appeal of J. Bias Lu-cero- and wife from allowance of claim of Elias' Chaves and Amelia Chaves do Armijo. Appeal from the District Court for Bernalillo county, before 1. A. Abbott, Associate Justice.

<p>Appeal from the District Court for San Juan county, before John R. McFie, Associate Justice.</p>

<p>Appeal from the District Court for Socorro County, before Frank W. Darker, Associate Justice.</p> <p>J oinder of counts in embezzlement and larceny is sanctioned by the authorities. 1 Bish. Crim. Fro. Sec. 449, sub. d. 3; Griffith v. State, 36 Ind. 406; Eex v. Johnson, 3 M. & S. 539; State v. Porter, 26 Mo. 201; State v. Mallon 75 Mo. 355; 1 Bish. Crim. Pro., Sec. 453.</p> <p>That ownership is charged in the Territory,, county and school fund is not fatal to the counts of the indictment. 1 Maclain Crim. Law, sec. 656; Brown y. State, 18 Ohio, St. 497; People'v. Guerra, 31 Cal. 416; Dreyer y. People, 176 111. 590.</p> <p>Clauses of Compiled Laws, 1897, Sec. 1125, are sqiarate, Territory v. Hale, 8.1 Pac. Pop. 585; State v. Brandt, 41 Iowa, 593, not controlling; 7 Ene. PI. & Pr. 438.</p> <p>The charge “converted to his own use and embezzled,” is sufficient statement of wrongful appropriation by the party to his own use. State v. Clarkson, 59 Mo. 152; IT. S. y. Lancaster, 2 McLean 431; State y. WolfO, 34 La. An. .1153; Sanders v. State, 86 Ga. 717; Maloy v. Commissioners. 10 N. M., 638, distinguished.</p> <p>Compiled Laws of 1897, section 1123, does not apply to a public officer. Territory v. Heacock, 5 N. M. 59.</p> <p>Where the meaning of the statute is plain, it is the duty of the court to enforce it according to its obvious terms. Thornley v. United States, 113 H. S. 310; United States y. Wiltberger, 5 Wheat. 76; Johnson v. Southern Pacific E. E. Go., 117 Fed. 465; Swarts v. Siegel, 117 Fed. 13; Bepubliea v. Wei die, 2 Dali. 88; United States v. Eees, 92 U. S. 214.</p> <p>All facts constituting a crime must be specifically alleged". Pettibone vv United States, 148 U. S. 202; United States v. Hees, 124 U. S. 486.</p> <p>Under Compiled Laws of 1897, Sec. 1125, two things must unite to constitute the crime of embezzlement. (1) the conversion (2) not meeting a lawful demand. State v. Govan, 48 Ark. 76 (2 S. W. 349); Heningway v. State, 68 Miss. 401 (8 So. 317) ; State v. Brandt, 41 Iowa 600; State v. Parsons, 54 Iowa 505 (6 N. W. 249); State v. Adamson, 114 Ind. 216 (16 N. W. 181); Comm. v. Lewis, (Ky. 1889) 12 S. W. 266; Vol. 7 A. & E. Ene. PI. and Prac. 442; State v. Hebei, 72 Ind. 361; State v. Hennieut, 34 Ark. 562; State v. Munch, 22 Minn. 67; Edelhoff v. State, 36 Pac. Rep. 627.</p>

Parker, Associate Justice. A territorial insolvency law that does not provide for tbe discharge of the debtor is not suspended by the mere passage of a National Bankrupt Law, apart from invocation of the latter by creditors of the insolvent or involuntary proceedings. Randolph v. Scruggs, 190 IT.

Baker, Associate Justice. Affirmed. Burden' is on wife to show that a valuable and adequate consideration out of her seperate estate actually passed from her to her husband for land conveyed to her by him, where pre-existing creditor brings action to impeach conveyance for fraud. Bump on Fraudulent Conv., 4th Ed.. Sees. 49, 50, 57, 63, 66, 249, 265, 288 and cases cited; First National Bank v. McClellan, 58 Pac.

- McFie, Associate Justice. (On motion to strike out motion for new trial and bill of exceptions.) Tlie court is always open except for jury trials. Compiled Laws, 1897, Sec. 2685, sub-sees. 103, 104, 132, 133. Seasonable notice of the adjournment of a term of court must always be given. Grable v. State, 2 Green (Iowa) 559; Stovall v. Emerson, 20 Mo. Ap. 322; 1 Ency. PI. and Pr. 243, 245; 21 Ency. PL and Pr. 601, 602, 631 and cases cited; dissenting opinion of Clifford in Ex.

Pope, Associate Justice. When officers of a city have neither actual nor constructive notice of defective condition of sidewalk, one personally injured by stepping on a loose planK of the sidewalk, cannot recover damages from the city. Cooper v. City of Milwaukee et al., (Supreme Court of Wisconsin) 3 Am. Neg. Rep. 304; Bucher v. City of South Bend, SO N. E, Rep. 412 (cited in note to 9, Am. Neg. Rep. 269; Morris et al., v. City of Philadelphia, 7 Am.. Neg.

Parker, Associate Justice. Where special findings are irreconcilable with the general verdict, the former'-control the latter. Walker v. Railway Co.. 7 N. MV 282, affirmed in-103 TJ. S. 593; Larkin v. Upton, 144 U. S. 619; Livingston County v. Morris, 71 Mo. 604; Newman v. Lawless, 6-Md 298; Plaggin v. Lorenz, 15 Mont. 309, 39 Pac. 285; Tracey v. Harmon, (Mont.) 43 Pae. 501; Dorger v. LaSieur, (Utah) 33 Pae. 701; Northern Ry.

McFIe, Associate Justice-. A peremptory writ oil mandamus will not lie in any matter requiring the exercise of official judgment and discretion. It will be used to set the official in motion, where his discretion and judgment are required and force him to exercise his function according to some discretion when he has refused to act at all. 2 Spelling Ex. Rem,, sees. 1432-1434, 1437.

Pope, Associate Justice. The offense need not be described in an appearance bond with that particularity required in an indictment. 5 Cyc. page 98; Chase v. The People, 2 Colorado 528; State v. Merrihew, 47 Iowa 112; State v. Marshall, 21 Iowa 143; Willard, Daniels et al v. The People, 6 Mich. 380. In order for a bail bond to be valid it must either set out the essential elements of an offense or set out an offense eo nomine.

Mann, Associate Justice. Wben an applicant for change of venue brings himself within the provisions of the statute, i-t is mandatory upon the court to change the venue of the cause. Compiled Laws, section 2881; Territory v. Kelly, 2 N M. 292; Territory v. Leary, 8 N M. 180; State v. Goddard, 146 Mo. 170, 48 S. W. 82, citing Higgins v. Com. 94 Ky.; Birdsong v. State, 47 Ala. 74; People v. Yoakum, 53 Cal. 566.

Abbott, Associate Justice. A mortgagee who holds a mortgage only for the purpose of indemnity, has no such interest in mortgaged chattels as will permit him to meddle with them until such time as he shall have been damnified by having paid some portion of the debt for which he is bound as surety. C. L. 1897, secs. 2365, 2367, 2368; Chamberlain v. Railroad, 92 IT. S. 306; Jones Chat. Mort., sec. 451; Bank v. Moore, 106 Cal. 673; Teal v. Walker, 111 IT.

A. Abbott, Aissoeiate Justice. Essential elements of usury are a contract between tbe parties in which contract usury is contracted for and an intent to violate a usury statute. Parsons on Contracts, pp. 107-114 •• 27 Am. and Eng. Enc. of Law (1st Ed.) 920-925. Alleged mistake must be pleaded. 14 Ene. of PI. and Pr. 41, note 1; 1 Daniel Chan. PI. and Pr., 5th Ed., 669, note 6. A statutory right may be waived, 9 Cyc. 480, nole 24; Shuttle v. Thompson, 15 Wall. 151.

Appeal -from the District Court for Chaves county, before Edward A. Mann, Associate Justice. In a suit by a corporation against a party not a stockholder therein, for alleged conversion of property, any evidence as to the ownership of the shares of said corporation is immaterial and irrelevant to any issue in the case..

Abbott, Associate Justice. The Governor cannot be invested with the power of removal from office upon charges. This is a judicial power. Organic Act, section 10, R. S. U. S. secs. 1868-9; Ferris v. Higley, 20 Wall. 375; Spencer v. County of Sully, 33 N. W. 98; Board of Commissioners v. N. P. R. R. Co., 10 Mont. 420; Ellison v. State, 125 Ind. 496; Foster v. Kansas, 112 IT. S. 206; Taylor v. Beckham, 178 IT. S. 548; Wilson y. North Carolina, 169 IT.

Abbott, Associate Justice (Judgment proforma.) The Governor has not the right to remove an officer-under the provisions of the Organic Act, section 3, (Section 1841 R. S. U. S.); Compiled Laws, 1897,… Held: as it had done in former cases, that an information in the nature of quo warranto was the appropriate and only method open to him, under the circumstances, to try his title to the office.

H. Pope, Associate Justice. It is not only necessary that the facts and circumstances which constitute the offense should be set out in the indictment, but it must be charged that the accused DID the acts which render him answerable to the law. Ewing v. State, 1 Tex. App. 362; State v. Hutchinson. 26 Tex. Ill; State -v. Daugherty, 30 Tex. 360; Edmonson-v. State, 41 Tex. 496; State v. Holder, 2 McCord L. (SC.) 377, 39 A. D. 738.

Parker, Associate Justice. “The existence of a partnership can not be proved by reputation.” Session Laws of 1899, Chap. 33, secs. 11 and 28, pp. 76 and 82; Waldo 'v. Beckwith, 1 N. M. 115; Earl v. Hurd, 5 Blaekf. 248. If there be no substantial evidence upon the side of the- verdict it is the duty of the appellate, court to set it aside. Sullivan v. Susong, 36 S. C. 287, 31 Am.

Parker, Associate Justice. Where the plaintiff seeks both legal and equitable re■lief under a statement of facts which constitutes a single' cause of action the case is one for the. court sitting as a chancellor and not for a jury. Lynch v. Metropolitan Ry. Co., 129 N Y. 274, 26 A. S. R. 523 and note; Barton v.. Barber, 104 TJ. S. 126, 133; Rubber Co. v. Goodyear, 9 Wall. 788; Cawood Patent, 94 TJ. S. 695; Marsh v. Seymour, 97 TJ. S. 348.

H. Pope, Associate Justice. Sufficient time to arrange properly for his defense and to set up the witnesses tha,t were absent, should be allowed defendant indicted for murder, and continuance should… Held: into the next car, uttered two sharp- exclamations, and was dead before anyone could reach him.

Mann, Associate Justice. Where upon a purchase of property the conveyance of the legal title is taken in the name of one person while the consideration or a .part of it is given or paid by another not in the way of a loan to the grantee, a resulting trust immediately arises from the transaction, and the person named in the conveyance will be the trustee for the party from whom the consideration proceeds.

Mills, Chief Justice. Where defendant claims that he was entitled to greater credit per year on an account running for several years but did not object to the amount against him as otherwise incorrect, it is only an acknowledgment of the correctness of account as far as the items are concerned and the amount of each item, but not as to the correctness of the general account so as to exclude the balances after a consideration of the claims of the other parties, that is, that…

Mills, Chief Justice. A brand not recorded on or before the date of the commission of the alleged crime of larceny could not be used to prove ownership at the time. Turner v. State, 45 S. W. Eep. 1020; Priestmuth v. The State, 1 Texas App. 481; Spinks v. State, 8 Tex. App. 125; Coombs v. The State, 17 Tex.'App. 266; Gram v. State, 3 S. W. 668; Chaves v. Territory, 6 N. M. 455; C. L. 1897, sec. 107.

H. Pope, Associate Justice. The evidence of grand jurors could not be received in any way to impeach their verdict or to testify as to any matters or things which had taken place before them. Ex parte Sontag, 2 Pac. (Cal.) 405; Compiled Laws, 1897, secs. 987 and 988; Burdick v. Hunt, 43 Ind. 381; Burnham v. Hatfield, 5 Blackf. (Ind.) 21; Way v. Butter-worth, 106 Mass. 75; Sands v. Robinson, 12 Smed. & M. (Miss.) 704; Am.

Mills, Chief Justice. If the alleged deed of trust was a mortgage in effect here or an “encumbrance” akin to a mortgage, being duly recorded, it could not be displaced by ox… Held: 12 Mont. 252; Frankel v. Creditors, 20 Nev. 55, 56; Kirman v. 'Powning, 25 Nev; 297, 298; Capital Lumber Co. v. Ryan, 34 Oregon 79; Shelton v. Jones, 1 Wash. 692; S. & T. Co. v. Bolton, 5 Wash. 763-765; Friezen v. Alemania Co., 30 Fed. Rep. 358; H. S. Patrick, 54 Fed. 348; Gilman v. Illinois Tel.

A. Mann, Associate Justice. No separate denial of the verified account was necessary, because the account is made part of the complaint and as such is sufficiently denied, as it is denied by the answer denying sufficient knowledge or information to form a belief as to the correctness of the account and all its items. Sub-see. 40, Code of Civil Procedure; Chadwick v. Booth, 22 How. Pr. 33; Brown v. Rockman, 13 How. Pr. 313; Caswell v. Bushnell, 14 Bash.

<p>Error to the District Court for Otero County, before E. A. Mann, Associate Justice.</p>

Frank W.. Parker, Associate Justice. Laws of 1907, ch. 81, sec. 40, gives right of appeal to District Court from any decision of the Probate Court whether final or interlocutory. Territory ex rel. Lee v. Hubbell, 9 N M. 560-564, not controlling. “When the intention of the Legislature is manifest there is no room for construction.

Abbott, Associate Justice. A de jure officer cannot recover the fees of the office received by the de facto officer. Stuhr v. Curran, 15 Vroom 181, 43 Am. Rep. 353; Auditor of Wayne Co. v. Benoit, 4 Am. Rep. 382. There is no property in an office. Butler v. Pennsylvania, 10 How. 402.

The statute of limitations began to run on date of the adjudication and approval of the Bartolomé Baca grant, the contingency fixed by the parties if the Galisteo ranch was- “sold and conveyed” on condition. Mahoning County .v. Young, 16 U. S. App. 265; 6 Ene. of Law 502, note'9. When the statute of limitation's has once begun to run, nothing will toll it, and one disability cannot be tacked to another. McDonald v. Hovey et al, 110 IT. S. 619.; Bausermam v. Blunt, 147 TJ.

<p>Appeal from the District Court for Chaves County, before W. H. Poms, Associate Justice.</p> <p>A written contract may be voided or changed by a con-iemporaneous oral agreement. Kirchner v. Laughlin, 4 N. M. 386, 393, 394; Cummings v. Arnold, 3 Met. 486, Am. Dec. 37-155; Stearns v. Hall, 9 Cush. 31; Longfellow v. Moore et al, 102 111. 294; Flemings v. Gilbert, 7 Johns 528; Mayor etc., v. Butler, 1 Barb. 337; Young v. Hunter, 6 N. Y. 204; Keating v. Price, 1 Johns., cas. 22; Esmond v. Van Benschoten, 12 Barb. 336; Clark v. Dales, 20 Barb. 42; Dodge v. Crandall, 30 N. Y. 306; Whittier et al r. Dana et al, 10 Allen 326 ; Norman v. Waite, 46 N. W. 639. 643; Thompson v. Poor et al, 42 N. E. ■ 13-15; Michels v. Olmstear, 14 Fed. R. 219; Brown on Statute of Frauds, sees. 409 (b), 423; Swain v. Seamens, 9 Wall. '271, 272; Dimple v. Ryan, 116 H. S. 491; following cases not applicable and distinguished: Pond v. Seeehan, 111., 8 L. R. A. 417; Daown v. Drew, 42 Atl. 177; Townsend v. Houston, 27 Á. D. 145, note; Christy y. Bernhart, 53 A. D. 541; Glass v. Aulbert, 102 Mass. 28, 3 A. R. 421, 434; Athe v. Bartholomew, 33 N. W. 110; Thompson v. Poor, 42 N. E. 13.</p> <p>The statute of frauds is in force in .New Mexico. 29 Caí-, II. C. 3; Childers y. Talbot, 4 N. M. 168; Browning y. Browning, 3 N. M. 371. A contract within the statute of frauds can not be altered by parol agreement. Within the rule the time of performance cannot be extended or changed.' 29 A. & E. Enc. Law, 2 ed. 824, 825; Ivirchner v. Laughlin, 4 N. M. 394; Emerson v. Slater, 22 How. 42; Swain v. Seamens, 9 Wall. 271, 272; Healey y. Swanstrom, 40 Minn. 200, 41 N. W. 1030; Rucker v. Harrington, 52 Mo. App. 488; Stearns y. Hall, 9 'Cush. 31, apparent exception; Whittier et al y. Dana et al, 10 Allen 326; Abel y. Dunston, 100 Am. Dec. 169; Cuff y. Penn, 1 Maulé & S. 21; Harris y. Murphy, 56 L. R. A. 671, note; Hasbrouck y. Tappen, 15 John 200; Blood y. Goodrich, 9 Gend. 667; Thompson y. Poor, 42 N. E. 13; Athe y. Bartholomew, 33 N W. 110; Abel-Y. Munson, 18 Mich. 305; Cook y. Bell, 18 Mich. 387.</p> <p>The payment of a part or even the whole of the purchase money constitutes no such part performance as. takes the case out of the statute of frauds. Purcell v. Coleman, 4 Wall. 513; Dimply y. Ryan, 116 H. S. 491; Pond v. Shee-han, 111., 8 L. R. A. 417; Daown y. Drew, 67 N. H. 569, 42 Atl. 177; Houston y. Townsend, 12 A. D. 140, note; Townsend v. Houston, 27 A. D. 745, note; -Christy v. Bem-hart, 53 A. D. 541; Glass v. Aulbert, 102 Mass. 28, 3 A. R. 421, 434; McPherson y. Wiswell, 21 N. W. 393; Douglass v. Snow, 77 Me. 93 ; Blodgett y. Hildreth, 103 Mass. 486; 29 A. & E. Ene. Law, 2 ed. 831, et seq.</p> <p>•STATEMENT OF FACTS</p> <p>The record in this case discloses that on August 11th, 1904, the defendant and plaintiffs entered into a. written agreement regarding the sale and purchase of certain lands, . which agreement is in words and figures as follows, to-wit:</p> <p>“McMillan, N M., Aug. 11th, 1904.</p> <p>“Received of John H. Kingston and W. D. Mahoney, one hundred dollars, part payment for 400 acres of land located in Section 19 and 20 in Twp. 19 S. range 26 E. There is to be $200.00 more paid on or before the 15th day from date.</p> <p>On payment of said $200.00 as stipulated the undersigned will place with the Citizens National Bank of Roswell quit-claim deeds for said land to be delivered on payment of $900.00 on or before 90 days from date.</p> <p>Failure to make payments as stipulated works a forfeiture of amount paid.</p> <p>J. W. Walters."</p> <p>The complaint sets out that at the same time and place mentioned in the written contract, the defendant entered into and made a subsequent oral contract extending for the period of five days the time in which to make the second payment of $200.00 and that afterwards, on the 20th day of August, 1904, plaintiffs paid the defendant the sum of $100.00 to apply on said contract, and again, on August 31st, 1904, plaintiffs were ready and willing to pay the remaining $100.00 to be paid withiq -the time in which said $200.00 was to be paid, and were prevented from so doing by defendant, who absented himself from his usual place of business in Roswell, N. M., and. remained absent for some time.</p> <p>Plaintiffs also allege that they have always been ready and willing, and are still ready and willing to fulfill said agreement, and that on November 9th, 1904, at Roswell, N. M., they tendered to defendant the balance of $1000.00 of said purchase money, and requested a conveyance of the real estate, but defendant refused and still refuses to execute and deliver same to plaintiff. Plaintiffs claim damages in the sum of $2,800.00.</p> <p>To the complaint the defendant demurred, which demurrer was sustained by the court, and plaintiffs electing to stand on their demurrer the cause was dismissed.</p> <p>Motion for rehearing was filed and overruled, and an appeal to the Supreme Court was granted.</p>

J. Mills, Chief Justice. Books of account can be admitted as evidence in this Territory only upon compliance with the conditions prescribed by Compiled Laws 1897, sec. 3031; Price v. Garland, 3. N. M. 505; Byers v. Eobinson, 9 N. M. 427; Greenleaf on Evidence 117. A witness can testify only to such facts as are within his personal knowledge.

Baker, Associate Justice. As to jurisdiction of the court to entertain petition of intervention. Compiled Laws, sees. 3179-3183; 8 and 9 Will., 3, c. 31; N. Y. Code secs. 1538, 1540, 1543, 1544; 3 Starr & Curtis Ann. Stat., 111., ch. 106, secs. 2912 et seq.; 2 R. S. Mo. 1899, sees. 7132, 7134, 7135, 7137, 7145; Cal. Civil Code, secs. 752, 759; Ind. Stat. vol.

Parker, Associate Justice. When the clear preponderance of evidence is found to be against the verdict of the jury, this court has the power to set it aside. Rafferty v. The People, 72 111. 37' (42); Waters v. People] 50 N. E. Rep. 148. It was error to instruct that the burden of proof is shifted to the defendant by the defense of alibi and that defendant must prove such alibi beyond a reasonable doubt. State v. McClellan et al, 59 Pac.

Bernalillo County, before Ira A. Abbott, Associate Justice. Reversed and Sections 3179 to 3186, -inclusive, of the Compiled Laws of 1897, provide a comprehensive Act for partition, vesting the power in the chancery side of the court. The act does not limit the right of partition in any way, but is of the most general character. Freeman 011 Co-tenancy and Partition, secs. 433-438, 455; Donnor v. Quartermas, 24 A. S. R. 778.

Mann, Associate Justice. Where a question is submitted as to a particular fact which is .pertinent to the issues, and necessarily to be determined by the jury, the court -has no discretion to refuse-L. L. & G. R. Co. v. Rice, .10 Kas. 426; Bent v. Phil-brick, 16 Kas. 191, 19.2;. Briggs & Watson v. Eggan, 1.7 Kas. 589; Green.v. Browne-Manzanares Gq., 11 N M. 66.8; Ene.

Abbott, Associate Justice. The only proper object of legislation for the regulation of the practice of medicine, is the protection of the public. Dent v. West Virginia, 129 H. S. 414; Territory v. Newman, 79 Pac. 813. The receipt of compensation from the person treated is not an element in alleging or proving violation of the Medical Law. Laws of 1903, page 63.

Pope, Associate Justice. The defendant has the right to state new matter as a defense, showing that the plaintiff is not the real party in interest; and to prove by the evidence that such is the fact. Stewart v. Price, 67 Pac. Rep. 554; Bostwiek v. Bry-ant, 113 Ind. 448-459; Eaton v. Alger, 57 Barber 179; Philips Code Pleadings, sec. 383; 23 Am.

Appeal .from the District Court for Chaves County, before William H. Pope, Associate Justice. “An amended answer complete in itself is to be considered as if it was the only answer which had been interposed in the case.” 1 Ene. P. & P. 626. “When the parties proceed to trial on the merits of the case without calling to the attention of the court the demurrer previously filed or demanding the ruling thereon the demurrer is waived.” 6 Ene.

Abbott, Associate Justice. Non est factum is a common law plea and no longer in force in New Mexico. Compiled Laws, 1897, sec. 2685. Under a general denial the defendant may introduce any evidence which goes to controvert the facts which the plaintiff is bound to establish., New York, Andrew v. Bond, 16 Barb. 633; Saunders v. Townsend, 26 Hun. 308; Little v. Denn, 34 N. Y. 452; Griff en v. Long Island R. R. Co., 101 N. Y. 34-8; Schauss v. Manhattan Gaslight Co. 14 Alb.

before Ira A. Abbott, Associate Justice. If the plaintiff was ineligible to the office, he can not recover fees paid another incumbent who was not lawfully entitled to the office. There is no property in an office. Butler v. Pa., 10 How. 402; Stuhr v. Curran, 15 Vroom 181, 43 Am. Rep. 353; Auditor of Wayne Co. v. Benoit, 4 Am. Rep. 382; 23 A. & E. Enc. of Law 390; Mathews -,. Copiah County, 53 Miss. 715, 24 Am.

Appe’al from the District Court for Chaves County before William H. Pope, Associate Justice. ■ “The name and address of the plaintiff's attorney must be endorsed on every summons.” Compiled Laws* 1897, sec. 2685, par. 4, sub-sec. 19; Stuyvesant v. Weil, 57 X. Y. S. 595; Hale v. Gee, 29 S. W. 44; Ivelso v. Norton. 87 Pac. 184; Sharman v. Huot, 63 Am. S. Rep. 645; Durham v. Bettertson, 14 S. W. 1060; Eorbes v. Darling, 54 X. W.--385; Liberty v. Haines, 64 Atl. 665.

Pope, Associate Justice. Where there is no sufficient evidence of a fact essential to the plaintiffs case, a verdict should be directed for defendant. 6 Ene. P. & P. 686; Gildersleeve v. Atkinson. N. M., 27 Pac. Bep. 477; Lutz v. Atlantic; etc., B. Co., N. M., 30 Pac. 912. Delivery is the essence of bailment. Stephen’s'Com., bk. 28, pt.-2,. c. 5, p. 80; Sehouler’s Bailments and Carriers, 2 ed., secs. 2, 71; Jones on Bailments 1, 117; .2 Bl.

Parker, Associate Justice. The rules of the civil law, as they existed in New Mexico at the time the Territory was ceded to the United States, with reference to community property, still prevail, except in so far as changed or modified by statute. In adopting the community system a state is bound by principles of the civil law and its interpretations. Chavez y. MeKnight, 1 N. M. 147; Barnett v. Barnett, 9 N. M. 205; Crary v. Field, 9 N. M. 222; Ballinger on Com.

Abbott, Associate Justice. A real estate broker bas no implied authority to bind the principal by signing a contract of sale.

Mann, Associate Justice. Under Compiled Laws, 1897, sec. 844, the court below did not have the power to remove a sheriff for acts done under a prior term of office.

H. Pope, Associate Justice. In actions of trover and conversion it is necessary for the plaintiff to allege ownership or possession of the property alleged to have been converted. 21 Ene. P. & P. 1062, 1114.

Mills, Chief Justice. A defendant in an action at law, cannot invoke the doctrine of laches to defeat the claim of plaintiff based upon his legal title. Lazarus v. Phelps, 156 IT. S. 205; Gray v. Finch, 53 Conn. 513; Leport v. Todd, 32 N. J. L-128; Bayard v. Colefax,’4 Wash. C. C. 41, 42; Kidder r. Stevens, 60 Cal. 419; Table Mountain Company v. Wal-lers Co., 4 Nev. 220; Bates v. Pickett, 5 Ind. 23; Lind v. Lind, 53 Minn. 51; Anderson v. Watt, 138 IT.

Abbott, Associate Justice, In an indictment for adultery under the Federal Star-tvte against a married man it is essential to allege that the woman was either married or unmarried. Act of March 3, 1887, 24 U. S. Stat. L. 635; State v. Armstrong, 4 Minn. 25G, 257, 335; 1 Cye. 953, 954; State v. Smith, Ind., 47 N E. 685; State v. Weatherby, 43 Me. 261; Smith-erman v. State, 27 Ala. 23, 25; 1 A. & E. Enc.

Pope, Associate Justice. Courts of justices of the peace can exercise no jurisdiction except where it is distinctly and expressly conferred. Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468; State v. Nash, 66 O. St. 612, 64 N. E. 558; St. v. LeClair, 86 Me. 522, 30 Atl. 78; State v. Gerry, 38 Atl. 272, 68 N. H. 495, 38 L. R. A. 228; Murry v. Burris, 6 Dak. 170, 42 N. W. 25; Worden v. Brown, N. Y., 14 How.

.Appeal from the District Court for Guadalupe County before Edward A. Mann, Associate Justice. In a prosecution for larceny there should never be a conviction unless the corpus delicti has been established. 8 Enc. of Evidence 86; Will’s Circumstantial Evidence 345 and eases cited, 352; 3 Greenleaf on Evidence, art. 31; People v. Hurley, 60 Cal. 74, 44 Am.

Pope, Associate justice. It is error for the judge to instruct the jury in a criminal case that the evidence of the prosecution is sufficient or that.the evidence of defendant is insufficient. U.. S v. Fenwick, Fed. Cas. 15087; D. S. v. Taylor, 11 Fed.. 470; State v. Riley, 18 S. E. 168, N. C.; Nonemaker v. State, 34 Ala 241; State v. Winchester, 18 S. E. 657, NT. C.; Howell v. People, 5 Hun. 620; Shaffner v. Commonwealth, 72 Pa.

Pony Associate Justice. The plaintiff is required to state the facts and must not load his complaint witb conclusions of law. Ene.

<p>SYLLABUS (BY THE COURT].</p> <p>1. Slot machines, where the chances áre unequal, with the chances in favor of the machine, are ejusdem generis, with gambling games specifically mentioned in Sec. One, Chap. 64, Laws of 1907, and are illegal.</p> <p>2. Slot machines of the kind described in the stipulation filed in this case, are banking games, and-come within the inhibition of Sec. One, Chap. 64, Laws of 1907.</p>