Volume 15 — New Mexico Reports

Mann, Associate Justice. The real limitation to the power of amending pleadings seems to be that the amendment shall not bring a new cause of action. 'Reeder v. Sayre, 70 N. Y. 190; Scovil \. Glassner, 79 Mo. 149; Stevens v. Brooks, 23' Wis. 196; Cook v. Crosian, 36 Pae. 532; Jenne v. Burt, 121 Ind. 275, 22 N. E. 276.

<p>SYLLABUS.</p> <p>Respondent wrote Oiis client, who was in jail charged with murder, requesting him to sign notes to pay for respondent’s services, stating that the client had a pretty (hard case, but if the client would do as respondent said, he would bring him through, but money would hg/ve to be raised o.r the notes signed. The client did not send the notes, and employed other counsel, and respondent, hearing of it, wrote him as follows: “If you go to trial without me in your case, I will bet you, you (hang. Will bet you the best suit of clothes made. You (had better get busy.” Held, that respondent’s conduct was highly improper, warranting his suspension from practice for two years.</p>

Abbott, Associate Justice. If the evidence is so meagre as not in law to justify a verdict for the party upon whom the burden of proof rests, the court would be in the line of duty to so instruct the jury. Tex. & Pac. Ry. Co. v. Gentry, 163 IT.

Abbott, Associate Justice. “An oiler to sell lands is personal to the proposed purchaser. No estate is vested in him by the offer, and therefore, his heirs have no right to accept the offer after his death.” 29 A. & E. Ene. Law, 2 ed. 595; Sutherland v. Parkins, 75 111. 342; Man v. Show, 51 Fed. 862; Neither is the right assignable. 29 Ene.

<p>SYLLABUS (BY THE COURT).</p> <p>1. A judgment of a district court will not be set aside by this court merely on the ground that the term of court at which it was rendered was not 'held at the de jure county seat of the county for which the term was held, as provided by law, If tlhe term was held and the judgment rendered at the de facto county seat, as established by the Act of the Legislative Assembly of the Territory.</p> <p>2. A witness for the defendant was asked on cross-examination if he made certain statements when he testified' at the preliminary hearing which he had made in his testimony at the trial, to which Hie replied as to one of them that he did. His entire testimony at the preliminary hearing was properly admitted to show whether it contained that statement.</p> <p>3. Conduct on the part of one or more of the jurors during the trial of a criminal case, although censurable, is not a sufficient ground for a new trial, unless it appears, or is at least presumable, that the defendant was prejudiced thereby.</p> <p>4. Evidence of what the defendants, jointly indicted for murder had said and done not long before the homicide in relation to the man with whose murder they were charged and another man associated with him in what they regarded as hostile acts toward themselves, was properly admitted as proof of their animus toward the man who was killed.</p> <p>5. In a trial for murder under sections 1060, et seq. C. L. 1897, cttrarged in the indictment as murder in the first degree, it’ is not the duty of the court to give instructions covering murder in the third degree in the absence of evidence in the case that the homicide by the defendant was. without intent ón his part.</p> <p>6. Under the circumstances shown in the record, a severance was properly denied.</p> <p>7. The instruction as to self-defense" was, sufficiently favor-able to the defendant.</p>

II. Pope, Associate Justice. The findings of the court below will he set aside when-there is no evidence to sustain them; or when they are-manifestly against the weight of the evidence. Brown v. Lockhart, 12 N. M. 10.; Romero v. Coleman, 11 N. M.. 533; Rush v. Fletcher, 11 N. M. 555. The law favors that construction of contracts of this-nature and that interpretation of the facts and acts of the parties which will secure to the broker payment of his commission.

<p>Appéal from the District Court fór Dona Ana County before Frank W. Parker, Associate Justice.</p> <p>Gambling legislation in New Mexico. Compiled Laws 1884, secs. 880-883, 891, 892, 2290; Crow v. The State, 6 Texas 335; Job 5; Psalms 21; C. L. 1897, secs. 1305, 1314, 3199; Laws of 1887; Laws of 1893; Laws of 1897, chapters 31, 32; Joseph v. Miller, 1 N. M. 621; Laws of 1907, chapter 64.</p> <p>"Statutes for the suppression of fraud should be liberally construed.” Bacon’s Abr., vol. 9, p. 251; Sutherland Statutory Construction 427; Randolph v. The State, 9 Texas 521 (1853); Portis v. The State, 7 Ark 360; Territory v. Gutierrez, 78 Pac. 143; ejusdem generis, vol. 3, Words and Phrases; ex-parte Leland, S. C., 1 Nott & McC. 460; Moore v. The State, 146 111. 600; People v. New York and M. B. Ry. Co., 84 N. Y. 565; Phillips v. Christian Co., 81 111. App. 481 (484); Remick v. Boyd, 99 Pa. St. 555; Union Co. v. Ussery, 147 111.- 208; Misch y. Russell, 13G 111. 22; Reg. v. Dickenson, 7 El. Bl. 831; Wanstead Local Board y. Hill, 13 C. B. N. S. 479; re Barre Water Co., 62 Yt. 27.</p> <p>Construing of statutes directed against gambling. People v. Carroll, 80 Gal. 157; .Stearns v. 'The State, 21 Texas, 693 ; Webb v. State, 17 Texas 206; Crow v. State, 6 Texas, 335; Randolph v. State, 9 Texas, 52Í; Bell y. State, 32 Texas, Cr. R. 187; Eaucett v.' State, 46'Texas, Cr. R. 114; Mims y. State, 88 Ga. 458; Brown v. State, 40 Ga. 692; Commonwealth v. Wyatt, 6 Randolph, •'Va. 694; Christopher v. State, 41 Tex. Cr. R. 239; State’v. Gaughan, 55 W. Ya. 692; Portis y. State, 27 Ark. 360; Trimble v. State, 27 Ark. 355;'Euper y. State, 35' Ark. 629; State v. Rosenblatt, 185 Mo. 114; Eubanks v. State, 5 Mo. 451; State v, Gittlee, 6 Ore. 426; In re Lee Tong, 18 Eed. 253; Meeks y. State, Texas 1903, 74 S. W. 910; Oblennis y. State, 12. Mo. 311; Vicaro v. The Commonwealth, Dana, Ky. 1846, 506.</p> <p>Qualifying -words are usually limited to their immediate precedents. Lewis Sutherland oh- Statutory’ Construction, sec. 420.</p> <p>.No Brief.</p> <p>' STATEMENT OF FACTS</p> <p>This is a case wherein appellee was indicted by, the grand jury of Dona Ana County for the offense of running and operating a certain banking game of chance, to-wit: A nickel-in-the-slot machine, contrary to the statute of New Mexico. *</p> <p>A warrant was issued upon said indictment and--the defendant was taken into custody, filed his appearance bond in the sum of $500 which said bond was approved according to law.</p> <p>f • Thereafter, the defendant withdrew his pica. of. not guilty, theretofore entered, and filed a motion to, quash the indictment found against him upon the ground' that it did not charge any offense under or known to the law of the Territory of New Mexico.</p> <p>An agreed statement of facts was filed, describing the'Said nickel-in-the-slot machine as follows:</p> <p>“A case, box or frame about five feet high and about four feet wide; that on the inside thereof is certain machinery so constructed as to make it work automatically when in running order; that there is a number of slots of different colors on the top of the machine and if the player puts a nickel into the slot of any color and pushes down a crank, it starts a circular disc to revolving, containing colors corresponding to the colors on the slots and if the color shown by the indicator over-the disc at which the- disc stops revolving is the same color as the slot in which the coin was deposited, a certain valve will' open and pay out to the player from one to forty times the amount played by the player according to the color played by him. If the indicator does not stop at the color played the player Joses the amount' played. That there is a common fund placed in the machine by the owner and constantly kept there against which the players can'' play, to which the player’s losings are added and from which his winnings are taken. In other words; if the -nickel is placed in the green slot and the disc stops at the point so the indicator points to the green color on the disc, it pays five times the original nickel played, and the yellow pays ten, the white twenty and the blue forty when similarly played. If, on the other hand, the indicator shows on some color which the player has not played, his money so played by him goes into the common fund and becomes the property of the relator and is lost to the player. Whether the pla3’or wins or loses is wholly a matter of chance.</p> <p>“The machine above described is a game of hazard or 'chance in which small sums are volunteered or ventured for the’ chance of obtaining a larger sum of money. The machine above described is what is known as a ‘’percentage game,’ that is, the chances are unequal in favor of'the owner.”</p> <p>And on llic same day, the court, after hearing defendant’s motion to quash, and arguments of counsel, sustained said motion and discharged the defendant.</p>

Abbott, Associate Justice. Allegations of title arc material in actions respecting personalty as well as in those concerning realty, and when made must be strictly proven, any material variance between the allegations and the proof thereof being fatal. Ene.

Abbott, Associate Justice. All questions not passed upon at former trial are open to review to the1 same extent that they would have been had there been no former appeal. Crary v. Field, 10 N. M. 257.

<p>SYLLABUS (BY THE COURT.)</p> <p>1. An indictment dharging the unlawful killing of cattle, under Sec. 79, C. L. 1897, which omits to allege that' such killing was “knowingly” done, is fatally defective.</p> <p>2. A defect in the indictment which is one of substance and not of form, merely, is not aided or cured by verdict.</p>

<p>SYLLABUS (BY THE COURT).</p> <p>1. Under section 67 of the Code of Civil Procedure material averments of the complaint not denied by the answer are taken as true.</p> <p>2. Under Laws of 1907, Chapter 57, Section 24, wlhere causes are tried without a jury, the certificate of the official stenographer is not alone .sufficient to make the transcript of the testimony an element in the review of the case. Such transcript must in addition be properly certified as correct by the trial judge.</p> <p>3. Upon a doubtful or deficient record every presumption is indulged in favor of the correctness and regularity of the decision of the trial court.</p> <p>4. The present record examined and under the rules just stated the cause affirmed.</p>

<p>SYLLABUS (BY THE COURT).</p> <p>1. A purchaser of property sold under Section 2716, C. L., who was a bona fide purchaser for value, without notice, has a perfect title to such property.</p> <p>2. Where .a state or Territorial Court sells attached property, as perishable or liable to be lost or diminished in value during the pendency of bankrupt proceedings against the attachment creditor, of which neither the court, the officer making the sale, or the purchaser had any notice until after the sale was confirmed, the trustee in bankruptcy must take the proceeds of such sale in lieu of the property so sold.</p> <p>3. A bona fide purchaser for value at such sale is specifically protected by the proviso following Section 67, of the Bankruptcy Act of 1898, (Stat. L. 565.)</p>

Abbott, Associate Justice. The voters of the town contemplated in the statute, are those who, after the required notice, come to the polls and deposit their ballots. ' St. Joseph v. Rogers, 16 W-all. 614, 646, 649, 664; Ilarshman v. Bates Co., 9-2 D. S. 569; Cass Co. v. Johnston, 95 U. S. 365, 366, 369; State v. Winkelmeier, 35 Mo. 103; State v. Mayor of St. Joseph, 37 Mo. 270; Hawkins v. Carroll Co., 50 Miss. 735; State v. Sutterfield, 54 Mo. 391; Carroll Countjr v. Smith,…

H. Pope, Associate Justice. The separation of tlie jury in such a way as to expose them to tampering may be reason for a new trial, variously held as absolute, or prima facie. Lester v. Stanley, 15 Fed. ease No. 8277; Wharton Crim. PI. & Pr. sec. 821; Early v. State, 1 Tex.

<p>'SYLLABUS (BY THE COURT.)</p> <p>Tlie Territorial Statute, -Chapter 96, Laws of 1884, as amended by Chapter 42, Laws of 1887, requiring the owners of cultivated lands in Lincoln County to protect them with fences -of a prescribed kind and- making the right to recover damages from the owners of animals injuring the crops on such lands depend on the maintenance of fences required by the law, is not invalid as a special law in contravention of the Act of -Congress of July 3-0, 1886, known as the “'Springer Act,” nor has it been repealed or rendered void by section 144 -of the Compiled Laws of 1897, or Chapter 73 of the Laws of 19-03.</p>

<p>SYLLABUS (BY THE COURT.)</p> <p>When the treasurer of á county in this Territory retained a commission for the amounts collected hy and paid to him hy the sheriff of the county for gaming and liquor licenses, under the law of 1901, and the Board of County Commissioners, audited and approved the accounts of the treasurer, knowing all of the facts in the case, and allowed him to retain the commission, under a mistake of law, there being no fraud or improper conduct on the part of the treasurer, the money so retained cannot he recovered hack, as the same was a voluntary payment made under a mistake or in ignorance of the law.</p>

<p>■SYLLABUS (BY THE COURT.)</p> <p>The acts regulating both voluntary and involuntary assignments in this Territory, which were passed by the legislature of 1889, were designed- to form a complete code of procedure for parties wishing to abandon their estates to their creditors, and in disposing of property conveyed to them by such assignments, assignees must follow the procedure laid down in said acts.</p>

McFie, Associate Justice. It is not unlawful to sell or give intoxicating liquor to a person over the age of eighteen years who is not a pupil at a school or college. C. L. 1897, sec. 1235, repealed by C. D. sec. 1270 and Laws 1901, chap. 3, sec. 1; 1 Fed. Stats. Ann. p. 110; Frost v. Wenie, 157 H. S.'58; Beals v. Hale, 4 How. 53; 1 Fed. Stats. Ann., p. Ill; IT. S. v. Greathouse, 166 IT.

Abbott, Associate Justice. Admitting a defendant to bail and fixing the amount thereof, are acts judicial in their nature. Gregory v. State, 94 Ind. 384; Hunt v. H. S. 63 Fed. 568, 11 C. C. A. 340; Callahan v. State, 60 Ala. 65; Pinson v. State,'28 Ark.. 397; Moore v. State, 28 Ark. 480; Dickinson v. Kings-bury, 2 Day. 1; Simpson v. Bobert, 35 Ga. 180; Wallenweber v. Comm., 3 Bush. 68; Wilson v. Commonwealth, 99 Ivy. 167; State v. Jones, 3 La. Ann. 9; State v. Gilbert, 10 La.

MoFie, Associate, Justice. Under the plea of self-defense, the jury must believe beyond a reasonable doubt that the' defendant stood in no real or apparent danger, judging from his standpoint before it could lawfully convict. Coffin v. U. S. 156 U. S. 461; Potter v. U. S., 155 U. S. 448; Davis v. U. S., 160 U. S. 484 et seq.; New Orleans, etc., R. Co. v. Jones, 142 U S. 24; Bank v. Bank, 6 How. 226, 227; 11 Ene. P. & P„ 145-147: Acers v. U. S., 164 U. S. 391-393.

Mann, Associate Justice. Ownership alleged in an indictment is one -of the material allegations and must be proven as alleged beyond a reasonable doubt. 2 Bishop Crim. Proc., sec. 723, 3 ed.; State v: McCoy, 14 N. PL 364; Commonwealth v. Trimmer, 1 Mass. 476; Brown v. The State, 35 Tex. 691; Underhill on Crim.

Parker, Associate Justice. An officer may lawfully arrest, without a warrant one whom he has reasonable grounds to suspect of having committed a felony, even though in point of fact, the one arrested is altogether innocent and no felony has been committed by any one. 2 Ene. A. & E. L., 2 ed., p. 870 and authorities cited; C. L. 1897, secs. 734, 1068, 1069, sub-see. 3; 1 Bishop Crim.

McFie, Associate Justice. The appeal was taken within one year from the date of the final judgment of the district court. Laws 1901. ch. 99. Not being taken thirty daj^s before the first day of January term 1903, the appeal was returnable at January term, 1904, C. L. 1897, secs. 896, 3140; Blyen v. H. S. 13 Wall. 595; B. & A. Ene., 9 ed. 750, and notes; Gurnee v. Patrick Co., 137 IJ. S. 141; Railroad v. Grant, 98 TJ. S. 398, 401, 403; Green v. Bush, 79 Fed. 999, 79 Fed. 349.

<p>•SYLLABUS (BY THE COURT.)</p> <p>1. An indictment framed in the terms ol the statute is sufficient only whereby the statutory language the de-, fendant is put upon fair notice of the charge against him.</p> <p>2. Under U. S. Rev. 'St., sec.. 4746, as amended by- the Act of July 7th, 189S, which penalizes the making of a false or fraudulent affidavit, it is not sufficient simply to allege that the affidavit was false. There must be a clear averment of the respects in which it is false, equivalent to the assignments perjury cases.</p> <p>3. A name pleaded as Munnison and proved as SMunnicon is id'em sonans and there is no variance.</p> <p>4. Under U. S. Rev. St., sec. 4746, as amended by the Act of July 7th, 1898, which subjects to punishment one who knowingly certifies, when not true, that a witness has been sworn to an affidavit to be used in a pension case, administering the oath immediately before the taking down of the statement thereunder, equally with administering it after taking down such such statement, is swearing the witness to such affidavit .within the statute.</p> <p>5. It was error, therefore, for the trial court to reject testimony for the defendant tending to show that he administered the oath to the witness and the latter thereupon having taken such oath immediately dictated his statement to defendant, such testimony being material as showing a compliance with the law and this even though the signing by the witness may have been postponed by illness to the next day.</p>

Abbott, Associate Justice. ' There is statutory authority for the condemnation of real estate for the use of the University. C. L. 1897, secs. 3693, 3850, 3857; Laws 1905, chapter 97, sec. 15. There are available funds for the compensation to the owners of the land. C. L. 1897, secs. 3636, 3571. Every action, suit or proceeding shall be brought in the name of the party in interest. C. L. 1897, sec. 3568-3591.

Abbott, Associate Justice. A complaint must proceed upon a distinct and definite theory and upon that theory the case must stand or falls Carpentier v. Brenhan, 50 Cal. 549; Welsh v. Darragh, 52 N. Y. 590; Humiston v. Smith, 22 Conn. 19; Easterly v. Barber, 66 N. Y. 440; Chicago, etc., B. R. Co. v. Bills, 104 Incl. 13; Mescal v. Tully, 91 Ind. 96; Goodwin v. Griffis, 88 N. T. 639; Raymond v. Toledo R. R. Co., 57 O. St. 271; Stoughton v. Mott, 25 Yt.

<p>Appeal from the District Court for Socorro County-before Frank W. Parker, Associate Justice.</p> <p>No briefs.</p>

Abbott, Associate Justice. The law imposes on the master only the obligation to use reasonable and ordinary care, skill and diligence in the matter of machinery and appliances. 20 A. & E. Enc. 74; Sherman and Redf. on Negligence, sees. 186, 189, 4 ed.; Probst v. Dellanated, 100 N. Y. 272; Brymes v. Southern Pac. Co., 27 Pao. Rep. 371, 372; 26 Cyc. 1136-38; La Batt on Master and Servant, sec. 110; Moore v. Wabash Ry.

-Mann, Associate Justice. Statute defining larceny of cattle. C. L. 1897, sec. 79. No evidence to establish fact that crime was committed. 8 Enc. of Ev. 86; 1 Wharton Cr. Law, sec. 745; 1 McClain Criminal Law, secs. 612, 616; Will's Circumstantial Evidence 345, 351, 352; 3 Greenleaf on Evidence, sec. 30. Instructions must be based upon the evidence. State v. De Wolf, 74 Pac. 1084, 1087; Yoder v. Reynolds, 72 Pac. 417, 419; Murray v. Ry. Co., 3 N. M. 580.

Abbott, Associate Justice. This claim of lien was prematurely filed and was therefore void. Genest v. Building Association, 11 N. M. 251; Phillips on Mechanic’s Liens, sec. 323 a; Boisot on Mechanic’s Liens, sec. 470; Jones on Liens, sec. 1430; Fire Extinguisher Co. v. Chaplin, 183 Mass. 375; Gatlin v. Douglas, 33' Fed. 569; Foushee v. Grugsbee, 12 Bush: (Ky.) 75; Taber-Pierce Co. v. International Co., 75 Pac., Colo., 150; Withrow Lumber Co. v. Glassgow Inv.

Abbott, Associate Justice. Plaintiff has no right to obtain a decision “on his own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.” C. L. 1897, secs. 3021, 2999 ; Gildersleeve v. Atkinson, 6 N. M. 260; 2 Bouvier’s Law Die. 167, Materiality; Maddox v. Sullivan, 2 Eich.

<p>Appeal from District Court for Bernalillo County.</p>

Mann, Associate Justice. The burden of proving that the animals mentioned in the pleadings were killed through the negligence of appellants .was on appellee. C. L. 1897, secs. 241, 242; Houston v. Brusk, 29 Atlantic 380; State v. Philadelphia Railway Co., 60 Md. 555; Sheridan v. Foley, 33 Atl. 484; Lyndsay v. Connecticut & P. R. R. Co., 27 Yt. 643; 21 Am. Enc. of Law, 2 ed. 510. No brief.

Abbott, Associate Justice. Neither of appellant’s propositions are within the issues made by the pleadings in his case and were not, therefore, properly before the court below. Chaves v. Meyers, 11 N. M. 342; Armijo v. Mountain Elec. Co., 11 N. M. 243; Bliss Code PL, par. 352; Pom. Rem. Pars. 691, 711; Hagan v. Surch, 8 Iowa 309; Smith v. Holmes, 19 N. Y. 271; Elder v. Rourke, 41 Pac. Rep. 7; Hickey v.- Thompson, 12 S. W. Rep. 477; Johnson v. Meyer, 16 S. W. Rep. 123.

H. Pork, Associate Justice. Where the description does not identify the land, nor state directly where it is, nor indicate any extrinsic -fact, from which its locality can be ascertained and fixed, specific performance cannot be decreed, nor can parol evidence be received to fix the locality. Warvelle on Vendors, vol. I, 2 ed. p. 128, secs. 96, 97; 19 Cyc.

<p>Appeal from the Sixth Judicial District Court.</p>

the District Court for Colfax County before W. J. Mills, Chief Justice. When one enters on land, claiming a right to it, and gains a seisin by such, entry, the seisin shall extendi to the whole tract which he claims. Kennebec Purchase v. Springer, 4 Mass. 416, 3 Am. Dec. 227; Wright v. Mattison, 18 How. 50-60; Hall v. Law, 120 H. S. 466; Pillow v. Eoberts, 13 How. 472; Elicot v. Pearl, 10 Pet. 412. One positive witness’ testimony is worth more than a dozen negative.

McFie, Associate Justice. In prosecution under 5 Fed. Stats. Ann., sec. 5467, p. 959, the indictment should describe the valuable content of the packet according to its nature under one of the appropriate classifications in the Statute.

<p>Appeal from the District Court for Chaves County before W. H. Pope, Associate Justice.</p> <p>The judgment rendered in Texas is res adjudicataSouthern Pac. R. Co. v. United States, 168 U. S. 1, 18 Sup. Ct. 18, 42 L. ed. 355; 2 Black on Judgment, 2 ed. sec. 504, et seq. and cases'cited, 514, 690, 864, 791; Stewart v. Maxwell, 1 N. M. 563; Farish v. Mining Company, 5 N. M. 279; Nave v. Adams, 107 Mo. 414, 28 Am. S. Rep. 421; Parhnrst v. Berdell, 110 N. Y. 386, 6 Am. S. Rep. 384; Shearon v. Terry, 1 L. R. A. 572; Union Pac. R. Co. v. Baker, Kansas, 47 Pac. 563; Nicholl v. Mason, 21 Wend. 339; Roger v. Odell, 39 N. H. 457; Baxley v. Linn, 16 Pa. 241; U. S. v. Dewey, 6 Biss. 503, F. D. C. A. S. No. 14,956; Leech v. Beatty, 127 Cal. 177, 59 Pac. 837; Freeman on Judgment, sec. 249; Bigelow on Estoppel, 5th ed. p. 261; Wolverton v. Baker, 86 Cal. 591, 25 Pac. 54; Voorheea v. Bank of the U. S., 10 Peters 449; Marble v. Keyes, 9 Gray’s Rep., Mass. 221.</p> <p>A stranger at the time he pays to the creditor the amount of the debt may take an assignment of it without the consent or knowledge of the debtor; and if, when he pays the amount, there be an express agreement that the debt is to be assigned to the stranger, this would amount to an equitable assignment of the debt, though no formal assignment was ever executed. Néeley v. Jones, 16 W. Va. 625; Swan v. Patterson, 7 Mo. 164; Bk. of U. S. v. Mart-son, 2 Bock. 254; Burr v. Smith, 21 Barb. 262; Dayton, v. Tagg, 8 Leigh 602; Pittsburg, etc., R. Co. v. Thompson, 56 111. 138; 1 May Ins., secs. 276, 457, 2 and cases cited; Meadows v. Ins. Co., 62 la. 387, 17 N. W. 600; Titus v. Ins. Co., 81 N. Y. 410; Shroeder v. Imperial Ins. Co., Cal., 63, Pac. 1074; 19 Cyc. 750 and cases cited; Norris v. Hartford Ins. Co., S. C., 33 S. ,E. 566, 74 A. S. R. 765; Del. Ins. Co. v. Greer, 120 Fed. 916; 57 Ya. 188; 61 L. R. A. 137; Wibengo v. Ins. Co., Mich., 57 N. W. 833; Wilcox v. Ins. Co., Wis., 55 N. W. 188; Quinbar y. Ins. Co., 133 N. Y. 356; 31 N. E. 31, 28 A. S. R. 645; Findlay v. Ins. Co., 74 Vt. 211; 52 Atl. 429; 93 A. S. R. 885; Ins. Co. y. Brown, 77 Mo. 79; 25 Atl. 992; Hayes v. Ins. Co., 132 N C. 702; 44 S. E. 404; Crikelair y. Citizens Ins. Co., 111.,, 48 N. E. 167; Riddelsbarger y. Ins. Co., 7 Wall. 390; Wells Fargo v. Ins. Co., 44 Cal. 397; Yoch v. Ins. Co., Ill Cal. 503, 44 Pac. 189; 34 L. R. A. 857; Supple v. Ia. St. Ins. Co., 5'3 la 29, 11 N. W. 716; Speagle v. Dwelling House Ins. Co., By., 31 S. W. 282; Eaton Eq., p. 449; C. L. 1897, sec. 3938; Ins. Co. y. Stensón, 103 H. S. 25; Hall v. R. R. Co., 13 Wallace 370; Hart v. R. R. Co., 13 Metcalf 99; Ins. Co. y. Basher, 39 Me. 253; Ins. Co. v. Frost, 37 111. 333; Ins. Co. v. Ry. Go., 25 Conn. 265; Mason v. Sainsburg, 3 Douglas 60; Yates v. Whyte, 4 Bing New Cases 272; Clark v. Blything, 2 B. & C. 254; Randal v. Cochran, 1 Yesey Sr. 98; Wilker v. Harper, 2 Barb. Ch. 338; Sherman’s Admin, v. Shaver, 75 Ya. 1; Ins. Co. v. Stinson, 103 H. S. 25, 28; Ins. Co. v. Woodruff, 2 Dutch, N. J. 541; Mathews v. Aiken, 1 Com. 595; Peake v. Estate of Darwin, 25 AH. 32; Carter v. Jones, *5 Ired. Eq. 197; Elhibor v. Newman, 20 Pa. St. 281.</p> <p>The Texas judgment was not res ad judicata. Lindauer v. Boyd, 70 Pac. Rep. 568; 1 Cook on Corporations, sec. 1; American Sugar Refining Co. v. Johnson, 60 Fed. 511; Bridge v. AAroole}r, 78 By. 523; Bank v. Earle, 13 Pet. 519; Ry. Co. v. Koontz, 104 H. S. 5; Ex parte Scholenberger, 96 H. S. 369; Clark v. Barnard, 108 H. S. 452; Nashua R. R. Co. v. Lowell Railroad, 136 H. S. 356; County Court v. Baltimore, etc. R. R., 35 Fed. 161; B. & O. R. R. y. Ford, 35 Fed. 161; 3 Cook on Corporations 910; 1 Cook on Corporations, sec. 1; American Sugar Refining Co. v. Johnston, 60 Fed. 511; Nichil v. Mason, 21 Wend. 339; Davis v. 'Dunkhill, 9 N. H. 545; Renner y. Marshall, 1 Wheaton 215; Gains y. Eeilf, et ais., 12 IIow. 536; Reynolds v. Stockton, 140 H. S. 264; 2 Smith’s Leading Cases 800, 813, 790; 2nd Black on Judgments, 2 cd., secs. 513, 508; Guarantee Co. y. Glenn Cove Springs, 139 H. S. 137; Franz Falk Brewing Co. v. Herch, 78 Tex. 192; 14 S. W. 450; Abbott v. Hut. Life Ins. Co., 127 Ind. 70, 26 N. E. 153; Sackett v. Montgomery, 57 Neb. 424 ; 77 N. W. 1083, 73rd Am. St. Eep. 522-; Cocieran v. Parker, 12 Colo. App. 169, 54 Pac. 1027; 2nd Story on the Conflict of Laws, secs. 619, 513, 592; Stout v. Lyle, 103 H. S. 68; Peck y. Jenness, 7 How. 612; Hale v. Frick, 104 H. S. 261; Eussel v. Plate, 94 H. S. 606; Gaines v. Eelf, et ais., 12 How. 536.</p> <p>Subrogation. Warring y. Loder, 53 N. Y. 581; Douglas y. White, 3 Barb. Ch. 621; 37 A. & E. Ency. of L., 2 ed., 207; Campan v. Molle, 124 Cal. 415; Farman v. Heatli, 19 Ind. 63; Walse v. McBride, 72 Md. 45; George v. Summerville, 153 Mo. 7; Harris v. Elliott, 45 W. Va. 245; 44 Cent. Digest 3344; Nisbit v. Martin, 4 Pa. Co. Ct. E. 95; Pearman v. Gould, N. J., 5 Atl. 815; Kernochan y. N. Y. Fire Ins. Co., 17 N. Y. 428; Traders Insurance Co. v. Eace, 111., 29 N. E. 846; 31 111. App. 625, 31 N. E. 392; Speagle v. Dwelling House Insurance Co., Ky., 31 S. W. 283; Ins, Co. v. Stetson, 105 H. S. 28; Wood y. N. W. Ins. Co, 46 N. Y. 425; Hlster County Savings Inst. v. Lake, 73 N. Y. 165; King v. Mutual Fire Ins. Co., 7 Cush. 1, 54 Am. Dec. 683; Carpenter v. Providence Ins. Co., 16 Peters 502; Garrison v. Memphis Ins. Co., 19 Howard 312; Hall and Long v. Eailroad Co., 13 Wallace 370; Wager y. Providence Ins. Co., 150 H. S. 107; Insurance Co. v. Stenson, 103 H. S. 28; Lysle v. Eogers, 113 N. Car. 197, 37 Am. State Eep. 627; Traders Ins. Co. v. Eace, 31 N. Eastern, 392; Pendleton v. Elliott, 38 Minnesota, 371, 38 N. West. Eep. 97; Mercantile Mutual Ins. Co. v. Knabales, 20th N. Y. 173; Eichardson v. Fraser, 112 H. S. 432; Mobile Ins. Co. v. Columbia, etc., Eailroad Co., 44 Am. State Eepts. 732; Memphis, etc., Eailroad Co. v. Dow, 120 H. S. 301; Aultman, Miller & Co. v. Bishop, 74th N. Western 55; Bank y. Wright, 63 N. W. 126; Eice y. Winters, 63 N. W. 830; McNeil, y. Miller, W. Va., 2 S. E. 355; 44 Cent. Dig. 3344; Mobile, etc., Railroad Co. v. Jure}r, 111 TJ. S. 595; Phenix Ins. Co. v. Erie Transportation Co., 117 IJ. S. 321; St. Louis,, etc., Railroad Co. v. Commercial Ins. Co., 139 TJ. S. 235; W. F. Ins. Co. v. Pac. Ins. Co., 4 Cal. 406.</p> <p>STATEMENT OF THE CASE.</p> <p>This suit was begun June 16th, 1903, by the appellant, Burton-Lingo Company, a New Mexico corporation, to foreclose a mechanic’s, lien on certain lots in the city of Roswell, County of Chaves, this Territory, against Patton .and wife as owners, and Haynes and Smith as mortgagees of Patton. Patton took out two insurance policies in the sum of fifteen hundred dollars ($1500.00) each with the appellant, the Fire Association of Philadelphia, one dated June 15th, 1903, and the other March 16th, 1904, each of said policies containing the following clause: “Loss or damage, if any, under this policy, shall be payable to Burton-Lingo & Co., as their mortgagee (or trustee) as interest may appear.” May 2, 1904, the improvements on the lots in question, for the construction of which the Burton-Lingo Company claimed a lien, were totally destroyed by fire, and on the same day Patton, in consideration of three hundred dollars ($300.00) and the-release of said lien executed an assignment of said policies to the Burton-Lingo Company.</p> <p>On the 10th clay of August, 1904, the Burton-Lingo Company, a Texas corporation, brought suit against the-Fire Association of Philadelphia and Patton in the District Court of Tarrant County, Texas, to recover on the-policies .assigned to it by Patton. Personal service on Patton and he failed to answer. Judgment in favor of the Burton-Lingo Company against the Fire Association for the amount'of the policies and upon its cross bill and answer, to which Patton had been made a party, the Fire-Association was on the 1st day of March, 1905, by said District Court, awarded judgment against said Patton-as follows:</p> <p>“It is further ordered, .adjudged and decreed by the-court that the said contract (the contract releasing the-mechanic’s lien in consideration of the assignment of the policies by Patton) is null and void and that the plaintiff Burton-Lingo Company have a valid and subsisting lien on the lots situated in the Territory of New Mexico upon which said buildings stood, covered by the two policies of insurance sued upon, to foreclose which lien a suit is now pending in the courts of New Mexico in the name of Burton-Lingo Company and against said Patton. And that the defendant Fire Association of Philadelphia is hereby subrogated to all the rights of the said Burton-Lingo Company in said litigation pending, and to all of the liens upon said property, to foreclose which said litigation was instituted in the courts of New Mexico as aforesaid, and it is further ordered and decreed that said Patton has no just or valid defense thereto. And that the defendant Fire Association of Philadelphia may continue to prosecute said litigation in the name of the Burton-Lingo Company for its own use and benefit and to take all necessary orders and processes therein in the courts of New Mexico, all this to be done at its own cost.”</p> <p>There was no provision in the above judgment for its enforcement against Patton. The Fire Association satisfied this judgment. On the 11th day of September, 1905, the Fire Association filed its petition as intervenor in this suit,.in which it set up its judgment obtained in the Texas court as res-adjudicata, and further claimed that it was subrogated to the rights of the Burton-Lingo Company to the lien sought to be foreclosed. Issue being duly joined and testimony taken, the court rendered its decree in favor of the appellees, and this appeal was taken.</p>

Abbott, Associate Justice. The court had jurisdiction. C. L. 1897, sec. 2950,. par. 1, 2, 3, 5. Lack of jurisdiction is apparent on the face of the-complaint. C. L. 1897, sec. 2950; Jones v. Rogers, 85 Miss. 834-5; Wayne y. Caldwell, 1 S. D. 485*-6; New Orleans v. Benjamin, 153 TJ. S. 431; Mining Co. y. Ore Purchasing Co., 188 IJ. S. 643.

H. Pope, Associate Justice. An instruction which assumes a fact as proved, where-the evidence is conflicting or against said fact,, is erroneous and prejudicial. Thompson on Trials, vol. 2, p. 1646, sec.. 2295; Bates v. Hearte, 82 Am. St. Rep. 187.

The lower court was without jurisdiction to disturb decree of divorce and its order' and decree attempting to vacate the same was null and void as well as final and therefore appealable. Barnett v. Barnett, 9 N. M. 205; 18 Ency. PI. &,Prae. 1012; Gray v. Moore,'7 Gray 215; 9 Enc. PI. and Prac. 684, 7 Id. 145; Gray v. Earl, 13 Iowa 188; Knox v. Smith, 4 Howard 298; Noonan v. Lee, 2 Black TJ.

A. Mann, Associate Justice. Referee having made no findings and witnesses not having been before the lower court, appellants request appellate court to examine evidence. Laws of 1907, ch. 57, sec. 38. The means employed and the agencies invoked to drive an unconscionable bargain established those material facts upon which it is the natural doctrine of equity to refuse specific performance.

<p>Appeal from the District Court for Lincoln County before Edward A. Mann, Associate Justice.</p> <p>No briefs filed.</p>

H. Pore, Associate Justice. If upon any construction which the ¡jury was authorized to put upon, or any inference they could draw from, the evidence, a verdict for the appellant could have been justified, the court below erred in directing a verdict for the appellee. Sioux City, etc., Ry. Co. v. Stout, 17 Wallace 657; Grand Trunk By. Co. of Canada v. Ives, 144 U. S. 408; Bailroad Co. v. Pollard, 33 Wall. 341; Bail-road v. Converse, 139 U. S. 469, 11 Sup. Ct.

Abbott, Associate Justice. The appellee violated the conditions' of his bond. Laws 1907, ch. 45, sec. 3; Laws 1905, ch. 60, sec. 11. Laws 1907, ch. 45, sec. 6, not special legislation.

Abbott, Associate Justice. See brief in preceding case, No. 1396. The District Court was without power to award a money judgment in favor of appellee against appellant. C. L. 1897, secs. 671, 673. Laws 1907, chapter 45, was not special legislation. In re Application of Church, 93 N. Y. Court of Appeals.

Pope, Chief Justice. The application of Estes for membership in the defendant order should have been admitted in evidence. 29 Cyc. 67 citing A. O. H. W. vs. Jessee* 50 111. App. 101; Association vs. Hand, 29 111. App. 73; Association v. Bloom, 21 111.

<p>SYLLABUS (BY THE COURT.</p> <p>1. Tlie waiver and relinquishment of a preference right to enter a certain tract of the public domain, which preference right has been obtained as the result of a contest before the United States land office, is a good and valid consideration for a note given in payment therefor.</p>

Abbott, Associate Justice. When Sandoval County was created, a probate clerk was allowed but ten cents a folio for the transcription of records appropriate for the territory included within the new county. Laws 1899, ch. 70, p. 145; C. L. 1897, sec. 1768. Chapter 70 of the Laws of 1899 imposes a duty upon ■a public officer, to-wit, the prolDate clerk. It does not provide for compensation to any person rendering service as an individual.

Mann, Associate Justice. ■ Can a person acquire a right of way for a canal, ditch, reservoir or pipe line on the unsurveyed public lands of the United States without first obtaining the permission of the Department of the Interior? is to be determined from Congressional legislation upon the subject and the construction to be given such legislative acts. 26 Stat. L. 1101, 1102, 6 Eed. St. Ann., pp. 508-510; Whitemore v. Pleasant Valley Coal Co., 27 Utah 284; 28 Stat.

<p>Continuance should have been granted. C. L. 1897, secs. 2986-2989; Johnson v. Dinsmore, Neb., 9 N. W. 559; Smith v. Bates, Tex, 27 S. W. 1044; Waldrup. v. Maxwell, Ga., 10 S. E. 597; Texas & P. Ry. Co. v. Yates, Tex., 33 S. W. 291; State v. Berkley, 92 Mo. 45; Murphy v. Murphy, 31 Mo. 322; Barnum v. Adams, 31 Mo. 532; Light v. Richardson, Cal., 31 Pac. 1123; Ogden v. Payne, 5 Cowen 16; Hooker v. Rogers, 6 Cowen 577; Peck v. Lovett, 41 Cal. 423; Leeesne v. Cottin, 9 Martin, La. 454; 4 Ene. P. & P. 824, 828, 829, 840 and cases cited; 3 Graham and Waterman on New Trials, 894; Light v. Richardson, 31 Pae. 1123; Smith v. Brand, 44 Ga 588.</p> <p>Where the policy provides that it shall be forfeited upon the failure of the assured to pay the annual premium ad diem, or to pay at maturity his promissory note therefor, the acceptance by the company of the note, although a waiver of such payment of the premium, brings into operation so much of the- condition as relates to the note. The failure to pay or tender the amount due on the note is fatal to a recovery on the policy. Thompson v. Insurance Co., 104 IJ. S. 252; Iowa Life Ins. Co. v. Lewis, 187 U. S. 335.</p> <p>Where the evidence as to the truth of the statement? in an application for insurance is conflicting or doubtful, it must be submitted to the jury, and the court can not direct a verdict. Mouler v. American Life Insurance Co., 101 U. S. 708; Texas & P. Ry. Co. v. Cox, 145 H. S. 593 ; Dunlap v. Northeastern Ry Co., 130 H. S. 649; Foot v. Aetna Life Ins. Co., 61 N. Y. 571; Caruthers v. Kansas Mut. Life Ins. Co., 108 Fed. 487; John Hancock Mut. Life Ins. Co. v. Houpt, 113 Fed. 572; N. Y. Life Ins. Co. v. Fletcher, 117 IJ. S. 519; In Leonard v. State Mutual Life Assurance Co., 51 Atl., R. I. 1048.</p> <p>After a party has moved the court that the jury be instructed to render a verdict in his favor, he must, if the court denies his motion, specifically request that there be submitted to the jury the questions of fact which he desires to have so submitted. Standford v. Magill, 38 L. E. A., N. D., 772; Sutter v. Vanderveer, 25 N. E., N. Y., 907; Buetell v. Magone, 157 IT. S. 154; Empire State Cattle Co. v. A.'T. & S. E. -Ey. Co., 147 Eed. 457; Sigma Iron Co. v. Greene, 88 Eed. 210; McCormick v. Bank, 142 Eed. 132.</p> <p>The action of the court in refusing to delay the case is not subject to review. Territory v. McFarlane, 7 N. M. 425; 4 Ene. P. & P. 827; Territory v. Padilla, 12 N. M. 6; Territory v. Leary, 8 N. M. 187; Waldo v. Beckwith, 1 N. M. 185, 186; Thomas v. McCormick, 1 N. M. 371, 372; Pierce v. Engelkemeier, 61 Pac., Ok., 1048; Keegan v. Donnelly, 52 Pac., Colo., 292; Association v. Hitchcock, 4 Kan. 36; Adamek v. Mfg. Co., 64 Minn. 304, 66 N. W. 981; Condon v. Brockway, 41 N. (E., 111., 634; Báumberger v. Arif, 31 Pac., Cal., 53; Zelinsky v. Price, 36 Pac., Wash. 28.</p> <p>The first annual premium on the policy sued on was paid in full to the company. Miller v. Life Ins.- Co., 12 Wall. 285; Berliner v. Travelers’ Ins. Co., 121 Cal. 451;. Van Warden v. Assurance Society, 99 Iowa 621; Griffith v. Life Ins. Co., 101 Cal. 627; Lebanon Mut. Ins. Co. vf Hoover, Hughes & Co., 113 Pa. St. 591; Bochen v. Williamsburg City Ins. Co., 90 Am. Dec. 787, 35 N. Y. 131; Farnum v. Phoenix Ins. Co., 83 Cal. .246; Insurance Co. v. Block, 109 Pa. St. 535.</p> <p>The court may withdraw a case from the jury altogether and direct a verdict for the plaintiif or defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Marande v. Texas & Pac. Ey. Co., 184 H. S. 191; Insurance Co. v. Trefz, 104 H. S. 203; Empire State Cattle Co. v. A. T. & S. F. R. R. Co., 28 S. C. R. 607; McGuire v. Blount, 199 TJ. S. 142; So. Pac. Co. v. Poole, 160 TJ. S. 438; Mutual Ben. Life Ins. Co. v. Robinson, 58 Fed. 723; Brown v. Metropolitan Life Ins. Co., 65 Mich. 306.</p> <p>'STATEMENT OF FACTS.</p> <p>This is an action to collect the amount due upon a life insurance policy issued by appellant to Pedro Perea. The defense interposed was: (1) that in response to the question No. 16 by the medical examiner of the. appellant, as follows: “Have you consulted a physician within the past 'two years for anything trivial or otherwise?” the said Perea answered as follows: “Once last year for malarial fever,” and that said answer of the said Perea was false in this: that in the year, 1904, the said Perea consulted a physician for dyspepsia and indigestion; (2) that in response to the question No. 17 by the same medical examiner, as follows: “Have you ever had any of the following, diseases; * * * dyspepsia, or indigestion”? the said Perea answered “No,” and that .said answer was false in this: that prior to the making of said application for a policy of insurance to the appellant, the said Perea had been afflicted with indigestion and had been treated for said disease by a well known physician; (3) that in response to question No. 18, by the said medical examiner, as follows: “State particulars of any illness, constitutional disease or injury you have had, giving date, duration and remaining effects, if any,” said Perea answered: “Malaria in August, 1903, and July, 1904, slightly, no results,” and that said answer was false in this: that in 1904 the said Perea was afflicted with, and received medical attention for, the disease of indigestion; (4) that in response to questions 18a and 18 b as follows: 18 a, “When did you last consult a physician?” 18b, '“For what?” the said Perea to questions 18a answered: “July, 1904,” and to question 18b, he answered, “Malaria,” and that said answer to 18b is false in this: that the said Pedro Perea consulted a physician for indigestion in 1904; (5) and that the said Perea gave his promissory note for a large part of the first year’s premium on said policy and that when note became due, he failed, neglected and refused to pay the same, and that consequently, under the provisions of the policy, the said policy became null and void. Plaintiff replied, alleging the truth of the several answers of said Perea, and alleged that long before the death of the insured, the appellant had-received without objection the first annual premium in full and the note had been paid. It appears that the date of the policy is July 30, 1905, and that the insured died January 11, 1906, of hemorrhage due to ulceration of the stomach. At the close of the trial both parties moved for verdict, -and appellant in addition presented instructions relating to the facts adduced in proof. The court directed a verdict for appellee and .judgment was awarded thereon.</p>

Abbott, Associate Justice. The,mere fact of killing or injury does not constitute any presumption of negligence. The specified negligent act complained of must be proved by the plaintiff. A. T. & S. F. Ry. Co. v. Walton, 3 N. Mi 541; Jones'on Ev., sec. 181, p. 393; Pollock on Torts, star p. 360; Savannah, etc., Ry. Co. v. Geiger, 21 Fla. 669; Chicago, etc., Ry. Co. v. Patchin, 16 111. 198; Great Western Ry. Co. v. Morthland, 30 111. 451; Indianapolis, etc., Ry.

<p>Appeal from, the District Court for Valencia County before Ira A. Abbott, Associate Justice.</p> <p>Chapter 32, Laws of 1876, repeals the penal provision of Chapter 31, Laws of 1876. C. L., secs. 1427, 1430; 4 Words and Phrases 3748; 8 Words and Phrases 7332; Bishop on Marriage and Divorce, 6 ed., sec. 105; 1 Lewis Suth. Stat. Cons., 2 ed., sec. 251; Norris v. Crooker, 13 How. 429, 13 L. ed. 210; TJ. S. v. Tyner, 11 Wall. 88, 20 L. ed. 153; Nichols v. Squire, 5 Pick., Mass. 168; People v. Tisdale, 57 Calif. 104; State v. Massey, 103 N. C. 356; 9 S. E. Rep 632.</p> <p>If there was no legal evidence to support the verdict it will be set aside. Territory v. Pino, 9 N. M. 598; People v. AhLoy, 10 Cal. 301; Territory v. Edie, 6 N. M. 555; 2 Greenleaf on Evidence, sec. 363; Blackburn v. Crawford, 3 Wall. 175, 18 L. ed. 186; 2 Stark 612, 2 Lon. ed.; 1 Greenleaf Ev., sec. 493; Sitler v. Gehr, 105 Pa. St. 577, 51 Am. Eep. 207; Clark v. Trinity Church, 5 W. and S. 266; Clyatfc v. U. E.„ 197 IT. S. 207,. 19 L. ed. 726; Wiborg v. IT. S., 163 TT. S. 632, 41 L. ed. 289.</p> <p>In a statutory crime in which “knowingly” is made one of the elements, it must appear that the act was done with a guilty knowledge of its consequences. 17. S. v. Clay-pool, 14 Fed. 127; Territory v. Cortez, 103 Pac. 264; U. S. v. Cassidy, 67 Fed. 698; 77. S. v. Terry, 42 Fed. 317; 77. S. v. Kirby, 7 Wall. 482, 19 L. ed. 278. .</p> <p>No exception shall be taken on appeal to any proceeding in the court below except such as shall have been expressly decided in that court. C. L. 1897, sec. 3139; Laws, 1907, chapter 57, sections 37, 46; Territory v. Watson,. 12 N. M. 422; Territory v. Yarberry, 2 N. M. 454; Territory v. Gonzales, 14 N. M. 31, 39; Territory v. West, 14 N. M. 557; Territory v. Caldwell, 14 N. M. 543; Padilla v. Territory, 8 N. M. 564.</p> <p>Good faith and a lade of intention to violate the law constitutes no defense in this case. Territory v. Church, 14 N. M. 226, 234, 235.</p> <p>Matters not raised by a motion for a new trial and made a matter of record by a bill of exceptions will not be considered upon appeal. Territory v. Christman, 9 N. M. 587.</p> <p>This court will not pass upon any alleged errors in the court below unless opportunity was given to the trial court to correct any errors or supply defects. TT. S. v. Adamson, 106 Pac. 653; 77. S. v. Cook, 103 Pac. 305, 307; Territory v. West, 14 N. M. 554, 557; McKenzie v. King, 14 N. M. 381; Territory v. Gonzales, 11 N. M. 456; Territory v. Chaves, 9 N. M. 282; Territory v. Archibeque, 9 N. M. 404; Maxwell v. Tufts, 8 N. M. 400-1; Ford v. Springer Ass’n., 8 N. M. 50; Railway Co. v. Saxton, 7 N. M. 305; IJ. S. y. Duran, 6- N. M. 175; Territory y. Baker, 4 N. M. 274; Palma v. Weinman, 13 N. M. 235-6; Territory v. Watson, 12 N. M. 421-2.</p> <p>The aj>pearance of a person is a matter' of evidence competent and proper for the consideration of courts and juries in determining the matter of age. 1 Wigmore on Evidence, sec. 222, note 1; 2 Wigmore on Evidence, sec. 1168; State v. Arnold, 13 Ired. Law 192; Hermann v. State, 73 Wis. 250-i; State v. Robinson, 32 Oreg. 51, 52-3; People, ex rel. v. Justices, 10 Hun. 225-6'; Comm. v. Hollis, 170 Mass. 435; Commonwealth v. Phillips, 62 Mass. 504.</p> <p>The facts are stated in the opinion.</p>

Abbott, Associate Justice. The power to limit the charges of public service corporations, in order to be exercised by municipal authorities, must be expressly delegated to them by the legislature, and is not included in power to regulate the use of streets. 27 A. & E. Ene. 1020; St. Louis v. Bell T. Co., 96 Mo. 623, 2 L. B. A. 278; Macklin v. Home Tel.

<p>Appeal from the District Court for Eddy County before W. H. Pope, Chief Justice.</p> <p>Seepage water of all kinds is subject to appropriation. Laws 1907, chapter 49, sees. 1, 53, 54; Samuel C. Weil on Water Rights in Western States, secs. 4-3, 102, 142, 360, 372; Millhiser v. Long, 10 N. M. 99; Civil Code California, sec. 1410; .Katz v. Walkenshaw, 141 Cal. 166, 99 Ataerican St. Rep. 35; 70 Pac. 663; 74 Pac. 766; Cohen v. LaCanada Water Co., 76 Pac. 47; Cohen v. LaCanada Water Co., 91 Bae. 584; ex parte Elam, 91 Pae. 811; Barclay v. Abraham, 64 L. R. A. 255; 100 American St. Rep. 365; Erickson v. Crookston Water Works, 111 N. W. Rep. 391, 8 L. R. A. New Series 1250; Kelly v. Natoma W. Co., 6 Cal. 108; Conger v. Weaver, 6 Cal. 557; 65 Am. Dec. 528; Eddy v. Simpson, 3 Cal. 253, 58 Am. Dec. 408; Hill v. Newman, 5 Cal. 446, 63 Am. Dec. 140; McDonald v. B. R. & A. W. Co., 13 Cal. 233.</p> <p>“The question of riparian ownership is to be determined by state law.” St. Anthony Water Palls Power Co. v. St. Paul Water Conmnssipners, 168 H. S. 366; Townsend v. State, 147 Ind. 624; Ohio Oil Co. v. Ind., 177 H. S. 190.</p> <p>Percolating waters belong to the soil, form a part of the realty and may be used and controlled by the owner of the realty without regard to the effect of such use upon his neighbor’s land or supply of water. Hanson v. McCue, 42 Cal. 308; Hosier v. Caldwell, 7 Nevada 363; Emporia v. Soden, 25 Kan: 410; Sullivan v. Northern Spy M. Co., 40 Pac. 709; Crescent Mining Co. v. Silver King M. Co., 54 Pac. 244; Willow Cr. Irr. Co. v. Michaelson, 60 Pac. 943; Harriman Irr. 0o..v, Keel, 69 Pac. 710; Bruennig v. Dorr, 47 Pac. 290; Wolson v. Ward, 56 Pac. 573; Deadwood Cent. R. Co. v. Barker, 86 N. W. 619; Tyler v. Welch, 6 Ore. 198; Platt Yalley Irr. Co. v. Buckers I. & M. Co., 25 Colo. 77, 53 Pac. 334; Boyce v. Cupper, 61 Pac. 642; Ogilvy Irr. and L. Co. 75 Pac. 598; Metcalf, v. Nelson, 65 N. W. 911, 23 Pa. Rep. 528; Southern Pacific Railroad Co. v. Dufour, 19 L. R. A. 92; 108 N. Y. 400.; 106 Penn. State 626; 51 Am. Rep. 542, and notes; 31 Am. State Rep. 438; 17 Am. State Rep. 796; 64 Am. Decision? 727, extended notes.</p> <p>Besides the intent, which naturally precedes any definite action, appropriation consists of two things, diversion and application to beneíicial use, and in case of irrigation the water must be applied to the land to make the appropriation complete. Mills Irrigation Manual, sec. 39, page 57; 45 Pac. 444 ; 34 Pac. 268.</p> <p>Where seepage water is not from constructed works, it is not subject to appropriation. Mills Irrigation Manual, sec. 42, page 59; Slosser v. Salt River Yal. Canal Co., 65 Pae. 332; Gould v. Canal Co., 76 Pac. 598; Reaffirmed 85 Pac. 117.</p> <p>STATEMENT OP THE CASE.</p> <p>Prom the opinion of Hon. William H. Pope, the presiding Judge who tried the casó in the court below, we adopt the following statement of the facts, disclosed by the record, and upon which a reversal is sought in this court.</p> <p>“That some time in the latter part of the year 1906, there appeared upon' the surface of the land of J. M. Hewes, one of the contestants, seepage water or spring water, from some unknown source, at a place where there had been no seepage or spring water for at least five years previous.</p> <p>“That the flow increased during the winter of 1906-07, diminished during the summer of 1907, and again increased during the fall of 1907, to such an extent that it spread over the public road and onto adjoining land of B. O. Dean, contestant herein, and that by reason of an embankment constructed on the. land of said B. O. Dean, across a draw or swale, the water backed over the public road.</p> <p>“The road overseer of that district requested permission of Dean to cut the embankment and allow the water to flow down upon the land of Dean and relieve the public road. To this Dean consented, provided that he be allowed to make use of the water for irrigating his lands and to construct a ditch to eonvev the water to his farm lands for that purpose. About the same time or subsequently thereto, Dean secured permission from said Hewes to so use the water and did construct a ditch for that purpose. The court further finds that on February 6, 1908, Fred Yanderwork, applicant named above, filed an application in the office of the Territorial Engineer fok a permit to appropriate the water, claiming it to be subject to appropriation under Chapter 49, Laws of 1907. The plan of Yanderwork, as shown by his plats and field notes, being to construct a deep ditch through the land of Iiewes so as to carry off the water and convey it by ditch a distance of about one mile, in order to use the same for irrigating lands belonging to Vanderwork.</p> <p>“After publication of notice, protest w¡as filed by said Hewes and Dean. Hpon a hearing on the protest, by the Territorial Engineer, he dismissed the protest and approved the application of Vanderwork. From this decision Hewes and Dean appealed.</p> <p>“By agreement of counsel the appeal was submitted to the Board of Water Commissioners upon briefs and the affidavits and records in the office of the Territorial Engineer, and the Board of Water Commissioners, after hearing and considering same, reversed the findings and holdings of the Territorial Engineer, and found that the water in controversy was not subject to appropriation by 'Vanderwork, whereupon Vanderwork has appealed said controversy to this court.”</p>

Abbott, Associate Justice. There was no evidence to support defendant’s counter claim for money paid to the Bank of Commerce, and if it be held that there was such evidence, there was no corroboration of it as required by section 3021, C. L. 1897. Gildersleeve v. Atkinson, 6 N. M. 260; Byert v. Robinson, 9 N. M. 432. The court erred in instructing for appellee. U. S. v. Gumm, 9 N. M. 617. There was ample corroboration of the defendant’s evidence.

<p>Appeal from the District Court for Bernalillo County before Ira A. Abbott, Associate Justice.</p> <p>The purpose of án attachment is to secure to the plaintiff the benefit of. such judgment as he might recover. 4 Cyc. page 403, and cases cited; Laws 1907, ch. 107; Smith Drug Co. v. Casper Drug Co., 40 Pac. 979; 4 Cyc. 812; Adams v. Evant, Miss. 1896, 19 So. 834; Hockspringer v. Ballenburg, 16 Ohio 304; Emmett v. Yeigh, 12 Ohio St. 335; Carton v. Paige, 9 Ohio St. 397; Harrison v. King, 9 Ohio St. 388; Tallón v. Elison, 3 Neb. 63.</p> <p>Tlie only ground for the dissolution of an attachment is that it was improperly or irregularly issued. Century Digest 943; Mason v. Lieuallen, 1895, Idaho; Cooper v. Reeves, 13 Ind. 53; Searcy v. Platte County, 10 Mo. 269; Waldert v. Nedderhut Packing Co., 18' Tex. Civ. App. 602; Ward v. Ward, 43 W. Ya. 1.</p> <p>Parole is inadmissable to prove the cancelling of a written contract. It.is the strongest evidence that can be given against it. Century Digest, vol. 20, column 3095; Sharkey v. Wood, 5 Rob. 326; William Deering & Co. v. Russell, 5 N. D. 319; Stewart v. Kindell, 15 Colo. 539; Kern v. Calvit, 1 Miss., Walk. 115, 12 Am. Dec. 537; D. S. v. Hughes, 34 Fed. 732; State v. Miller, 49 Mo. 505.</p> <p>If the cause of action fails the attachment must fall with it. C. L. 1897, sub-secs. 43, 46.</p> <p>When a party to an action applies for an order which is granted to* him upon the condition of paying costs or doing any other thing, and- the party accepts the benefit of the order, and performs the condition, he waives his right to appeal from that part of the order imposing the condition. Cogswell v. Colley, 22 Wise. 399; Radwav v. Graham, 4 Abb. 468; Vail v. Remsen, 7 Paige 206; Bennett- v. Van Syckel, 18 N. Y. 481; Buckman v. Alwood, 44 111. 183; Holt v. Rees, 46 111. 181; Glackin v. Zeller, 52 Barb. 152; Burton v. Brown’s Executors, 22 Graft., Ya. 1; Alabama & Y. Ry. Co. v. Davis, 69 Miss. 444, 13 South. 693; Tpller v. Howard, 40 N. Y. 739, 17 Mies. 105; Flanders v. Town of Merrimae, 44 Wis. 621, 623; Smith v. Morgan, 56 S. W. Tex. 950, 951; H. S. v. Griego, 11 N. M. 392, 411.</p> <p>A general assignment of errors or an assignment of error that the verdict is contrary to the weight of the evidence or against the law and the evidence, will not be considered on appeal. Cunningham v. Springer, 13 N. M. 259, 273; Chaves v. Lucero, 13 N. M. 368, 380; Maxwell v. Tufts, 8 N. M. 401; Lamy v. Lamy, 4 N. M. 29; Mogollón v. Stout, 14 N. M. 245; Cevada v. Miera, 10 N. M. 62, 66; Pearce v. Striekler, 9 N. M. 467;Badeau v. Baca, 2 N. M. 194; Territory v. Webb. 2 N. M. 147; Waldo v. Beckwith, 1 N. M.- 97; Territory v. Maxwell, 2 N. M. 250; Torlina v. Trorlich, 5 N M.-148; Armijo v. Abeytia, 5 N. M. 533; U. S. v. De Amador, 6 N. M. 173; Territory v. Hicks, 6 N. M. 596; Trujillo v. Territory, 7 N. M. 43; A. T. & S. F. Ry. Co. v Martin, 7 N. M. 158; Green v. Browne & Manzanares, 11 N. M. 658; Robinson v. Palatine Insurance Co., 11 N. M. 162; Schofield v. Territory, 9 N. M. 526.</p> <p>The only absolute test we can have of the value of a merchantable article is what it has been sold for at a fair sale. Budd v. Van Orden, 33 N. J. Eq. 143, 146; Burke v. Pierce, 83 Fed. 95; Swanson v. Keokuk & W. R. Co., 116 Iowa 304, 89 N. W. 1088; Atwood v. Berss, 45 Mich. 469; 8 N. W. 55; Humphreys v. Minn. Clay Co., 94 Minn.. 469, 103 Ñ W. 338; Southern Ry. Co. v. Williams, 113 Ga. 335, 38 S. E. 744; Terre Haute & I. R. Co. v. Smith, 65 111. App. 101; Bringham v. Knox 127 Cal. 40, 59 Pac. 198; Matthews v. Mo. Pac. Ry. Co., 142 Mo. 645, 44 S. W. 802.</p> <p>STATEMENT OF FACTS.</p> <p>This was an action brought by the appellants, hereinafter called plaintiffs, against appellees, hereinafter called defendants^ in the district court of Bernalillo County for the recovery of rent. A lease had been made February 10, 1908, between these parties for the rental of a building in Albuquerque at $80 per month for a period of two 3rears. The complaint alleges that the defendants quit the premises and were at the time indebted to the plaintiffs in the sum of $440, for rent due, and they brought suit for this amount and for the further sum of $100 for attorney’s fees expended in enforcing covenants of the lease. The defendants answered that they had rented the building for the rental specified in the complaint and that they quit the premises on or about the first day of May, 1908; that it was agreed between them and plaintiffs; "that the said plaintiffs would accept and receive from the said defendants, and that the said defendants would deliver and surrender to said plaintiffs, certain shelving and fixtures, and electric light wiring, and the rights of these defendants to certain moneys theretofore paid by these defendants to the Albuquerque "Water Supply Company and the Albuquerque Gas, Electric Light and Power Company by way of advance payment for services of said companies, and that the said plaintiffs in consideration thereof, would and did consent to the abrogation of the said lease and to the release of these defendants from all further liability on account thereof;” and that in consideration of said agreement the appellees did surrender and deliver to appellants and appellants did receive from appellees, “certain shelving and fixtures, and electric light wiring, and the rights of these defendants to certain moneys theretofore paid by these defendants to the Albuquerque Water Supply Company and the Albuquerque Gas, Electric Lightt and Power Company and did then and there accept from these defendants possession of said leased premises; and did agree to release these defendants from all liability on account of the covenants contained in the said lease and from all liability for rent thereafter to accrue under the terms thereof, which said release and surrender was by the said defendants accepted and acted upon.”</p> <p>The plaintiffs sued out a writ of attachment against the defendants and garnisheed two banks in which the defendants had money on deposit. After, the answer of the defendants was filed, and they also filed a traverse, of affidavit in attachment, they moved for judgment on the pleadings for want of a reply to the new matter set forth in the answer. Thereafter the plaintiffs moved for leave to file reply, which motion was by the court granted upon conditions, the condition being'that the plaintiffs should forthwith file a written dismissal of the attachment and discharge the garnishees. Thereafter the plaintiffs filed a written dismissal of their attachment and a reply denying the new matter set up in the answer. The case was tried to a jury and a verdict returned finding issues for the defendants.</p>

Abbott, Associate Justice. Where contract is silent as to time in which building should be completed and the evidence with reference to-the completion and date thereof is undisputed, it is error for the court to submit the question to the jury whether or not it was completed in reasonable time. Fleisehner, Mayer. & Co. v. Kubli, 20 Or. 339, 25 Pac. 1086; Howell v.. Johnson, 38 Ore. 571, 64 Pac. 659/ G-oltra v. Penland, _77 Pae. 131/Ore.; Gilmore v. Wilbur, 22 Am.

Abbott, Associate Justice. Where an insolvent person has money on deposit in a bank subject to check, and also owes the bank upon a promissory note, upon such insolvent person being adjudged a bankrupt, the bank is entitled to have the amount of the bankrupt’s deposit set off against the sum due on the promissory note, and to prove its claim against the bankrupt for the balance.

Abbott, Associate Justice. A compliance with the statutory requirements is necessary in order to acquire a valid and enforceable lien. C.'L. 1897,' sec. 2221; 27 Cyc. pp, 42, 152, 154, 171, 110, 175 and cases cited; Phillips’ Mechanics Liens, secs.'342, 359, 367, 366; 2 Jones on Liens, secs. 1390, 1391, 1389; 20 Am. & Eng.

County before William J. Mills. Where, no provision is made in the contract for the measurement of hay, if there is a statute in force prescribing the method of measuring hay, such statute must be applied. Laws 1901, ch. 34. ’ The court will not disturb a verdict where it is merely against the preponderance of the evidence, but where there is no evidence on a point essential to support the verdict it is otherwise.

Mills, Chief Justice. A lease made with the knowledge and intention of the leaser that the demised premises are to be used for immoral or illegal purposes is unenforceable and invalid. Laws 1901, chap. 84, secs. 2, 4; A. & E. Enc. Law, 2 ed., vol. 18, pp. 316, 317 and cases cited; Cyclopedia of Law and Procedure, vol. 24, p. 909 and cases cited; Chateau v. Singla, Cal., 45 Pac. Rep. 1015¡; Demartini v. Anderson, 59 Pac.

McFie, Associate Justice. The value of the sheep and wool must be at a time proper to the issue. 13 Ene. Ev. 557, 565, 566, 567 n. 7, 8; .Mining, Syndicate Co. v. Fraser, 130 TJ. S. 611; Chapman v. Kerr, 80 Mo. 158 and cases cited; Mix v. Kepner, 81 Mo. 93; White v. Storms, 21 Mo.

Mann, Associate Justice. Parole proof was admissible to show that defendant was not operating the line of railroad which passed through or near to the lands of the plaintiff. A railroad company by the acceptance of its charter and franchises from the state assumes a responsibility toward the public for the proper exercise thereof, and if it permits others to use its road the latter must be deemed to do so as its agents. STATEMENT OF THE CASE.

<p>Appeal from the District Court for Grant County before Frank W*. Parker, Associate Justice.</p> <p>Laws of 1905, chapter 115, section 2, is unconstitutional. Organic Act, secs. 7 and 17; R. S. of U. S., sec. 1851; 10 Current Law 418; Zanone v. Mound City, 103 111. 552; State ex reí. Galle v. N. O., 113 La. 371, 36 So. 999; Allgeyer v. State of La., 165 U. S. 579; in re Jacobs, 98 N. Y. Supp. 98.</p> <p>Laws of 1905, chapter 115, section 2, creates a monopoly. Tugman v. City of Chicago, 78 111. 405; Moore v. City of Danville, 1908, 232 111. 307, 83 N. E. 845; State ex reí. Galle v. N. O., 1904, 1131 La. 371, 36 So. 999 ; Beebe v. State, 6 Ind. 501, 63 Am. Dec. 391; Town of Elba v. Rhodes 1905, 142 Ala. 689, 38 So. 807; Town of Manderville v. Band. 1904, 111 La. 806, 35 So. 915; C. L. 1897, sec. 3774; Duncan v. Mo., 152 U. S. 377, 382; Philbrook v. Newman, 85 Federal 139, 143; State v. Catigan, 50 Atl. 1079, 1081, 73 Yt. 245; Sunderland’s notes on U. S. Const. 728, 733; Cooley’s Const. Law (Student’s Series) 248; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; ex-parte Deeds, 87 S. W. 1030; Sam’s v. St. L. & M. R. R. Co., 73 S. W. 686; State v. Redmon, 114 N. W. 137; N. Y. Sanitary, etc., Co. v. Dept. Pub. Health, 70 N Y. Sup. 510; Union Saw Mill Co. v. Felsenthal, 85 Ark. 346, 108, S. W. 217; ex parte Woods, 108 S. W. 1171; Cooley’s Const. Lim., 6 ed., 481, 483.</p> <p>The police power of the state must be exercised in subordination to the Federal Constitution. Sunderland’s notes on the U. S. Constitution 611, 716, 717; Cooley’s Constitutional Law (Student’s Series) 251; People v. Warden of Prison, 39 N. E. 689, 144 N. Y. 529; Mugler y. Kansas, 123 TI. S. 661; in re Wilshire 103 Federal 620; Logan & Bryan y. Postal Tel. & Cable Co., 157 Federal 570; State v. Redmon, 114 N W. 137; Iler v. Ross, 90 N. W. 869, 57 L. R. A. 895; Priewe y. Wis. Land & Imp. Co., 79 N. W. 780, 103 Wis. 537; Tiedeman State & Federal Control, sec. 3; L. S. & M. S. Ry. Co. y. Smith, 173 H. S. 684; State v. Chittenden, 107 N. W. 500-517, 127 Wis. 468; State v. Walker, 92 Pac. 775; State v. First Nat. Bank, 51 N. W. 587; 2 S. D. 568.</p> <p>Laws of 1905, chapter 115, section 2, is local and .special legislation and contrary to the Springer Act. Blade’s Law Dictionary; Codlin v. Kohlhousen, 9 N. M. 565-575, 58 Pac. 499-502; Kehr v. Turner, 1908, 107 S. W. 1064; Clark y. Finley, 54 S. W. 343, 345., 93 Tex. 171; 5 Words and Phrases 4208; Title, etc., Co. y. Kerrigan, 88 Pac. 356-365, 150 Cal. 289; State v. Walsh, 37 S. W. 1112, 1113, 136 Mo. 412.; Kerrigan y. Force, 68 N. Y. 381; Dundee Mortgage, etc., Co. y. School District No. 1, C. C. 21 Fed. 151; Rambo y. Larrabee, 73 Pac. 915, 67 Kan. 634; Kansas y. City of Lawrence, 100 Pac. 485, 494; Topeka v. .GiUett, 4 Pac. 800, 803, 32 Kan. 431; People y. R. R. Co., 23 Pac. 303, 83 Cal. 393; People v. Election Commissioners of Chicago, 77 N. E. 321, 325, 221 111. 9; Yan Geisen y. Bloomfield, 47 N. J. Law 442; Park Commissioners y. Chicago., 74 N. E. 771, 216 111. 54; Marsh v. Hanley, 43 Pac. 975, 111 Cal. 368; Sutherland St. Const., sec. 129; Thomas v. Wábash, etc., Co., C. C., 40 Fed. 126; State y. Thomas, 39 S. W. 481, 138 Mo. 95; State y. Bliler, 39 S. W. 1117, 138 Mo. 139; in re Branch, 57 A. 431, 70 N. J. L. 537-576; Noel y. People, 58 N. E. 616, 187 111. 587; De Hart y. Atlantic City, 43 Atl. 742, 63 N. J. L. 223; in re Fagan, 57 Atl. 469, 70 N. J. L. 341; State v. Jackson, 89 Mo. 237, 1 S. W. 307; Thomas y. Wabash, etc., Co., 40 Fed. 126.</p> <p>The legislature may regulate or may absolutely prohibit the sale of intoxicating liquors without violating the fourteenth amendment to the Constitution of the United States. Crowley v. Christensen, 137 U. S. 86; Gray v. Conn., 159 U. S. 74; Beer Company v. Mass., 97 U. S. 25; Bartemeyer v. Iowa, 18 Wall. 129; Mugler v. Kansas, 123 U. S. 623; Kidd v. Pearson, 128 U. S. 1; Organic Act; State of Oregon v. Richardson, 85 Pac. 225, 8 L. R. A., n. s. 362, 48 Or. 309; U. S. v. Ronan, 33 Fed. 117; Decie v. Brown, 167 Maas. 290, 45 N. E. 765; State v. Stovall, 103 N. C. 416, 8 S. E. 900; Meyer v. Baker, 120 111. 567, 12 N. E. 79; Commonwealth v. Petri, 28 Ky. Law 940, 90 S.-W. 987; in re Kessler, 163 N. Y. 205, 57 N. E. 402.</p> <p>Laws of 1905, chapter 115, section 2, is not special or local legislation such as is prohibited by the Springer Act. Codlin v. Kohlhousen, 9 N. M. 565; Decie v. Brown, .167 Mass. 290, 45 N. E. 765; Iler v. Ross, 64 Neb. 710, 57 L. R. A. 895, 90 N. W. 869; River Rendering "Co. v. Behr, 7 Mo. App. 345; Smiley v. MacDonald, 42 Neb. 5, 27 L. R. A. 540, 60 N. W. 355; State v. Currans, 111 Wis. 431, 56 L. R. A. 252; Grumbach v. LeLande, 98 Pac. 1059.</p> <p>A police regulation discriminating in favor of saloons 'already established, is not unconstitutional. City of New Orleans v. Charles Smythe, 116 La. 685, 41 So. 33, 6 L. R. S., n. s. 722.</p> <p>STATEMENT OF THE CASE.</p> <p>The appellant applied for a license to vend liquors at retail in the town of Central, Grant County, New Mexico, but was refused the license by the appellee, who baaed his refusal on the ground that the saloon was “within five miles of a United States Government Sanatorium” and was not “one previously established,” and wras, therefore, within section 2, chapter 115, Laws of 1905., which provides:</p> <p>“It shall be unlawful for any person, company or corporation to establish or conduct a saloon for the vending or sale of spirituous, vinous, or malt liquors within a distance of five miles of any United States Government Sanatorium, or within a distance of two miles of any military reservation in New Mexico, or within one mile of the established boundaries of the New Mexico College of Agriculture and Mechanic Arts, or within one-half mile of the University of New Mexico or the School of Mines, and no license shall be issued for such purpose, but this section shall not apply to any saloon previously established.”</p> <p>The appellant brought suit in mandamus, by which he sought to compel the appellee, in his official capacity, to issue a license to him upon his application. In the return of the appellee to the alternative writ and petition filed in this cause, to the effect that the place and building, in and for which appellant requested the issuance to him of a license for the vending of liquor, was within a distance of five miles of a United States Government Sanatorium, was not denied by plaintiff below, no reply whatever having been filed by plaintiff to' defendant’s return. The existence of the facts thus alleged is also assumed in appellant’s assignment of errors and brief herein, and the attack upon the rulings of the lower court is made solely upon the ground of the unconsititutionality of the act upon which appellee based his refusal to issue the license.</p> <p>Upon the trial in the court below a peremptory writ of mandamus was denied and the cause was dismissed. From this judgment the plaintiff below appealed to this court.</p>

<p>Appeal from the District Court for Dona Ana County before Frank W. Parker, Associate Justice.</p> <p>The court was without jurisdiction. C. L. 1884, sec. 543; Laws 1891, ch. 19; Laws 1893, ch. 34; Laws 1895, /ch. 17; C. L. 1897, secs. 908, 909, 910, 911; Laws 1905, eh. 89; C. L. 1897, sec. 905; Borrego v. Territory, 8 N. M. 446; Freeman on Judgments, 4 ed., secs. 90, 121; Territory v. Armijo, N. M., 89 Pac. 67; Cooper v. Am. Central Ins. Co., 3 Colo. 318; State y. Williams, 48 Ark. 227; ex parte Jones, 49 Ark. 110; ex parte Williams, 60 Ark. 457, 65 S. W. 711; Parker v. Sanders, 46 Ark. 229; Batten y. State, 80 Ind. 394; in re Millington, 24 Kan. 214; Gfhble v. State, 2 G. Greene 559; Bates y. Gage, 40 Gal. 183; Smith y. Chester, 1 Cal. 409; Domingues v. Domingues, 4 Cal. 186; Norwood y. Kenfield, 35 Cal. 329; Blake y. Harlan, 75 Ala. 205; State y. McBain, 102 Wis. 431, 78 N. W. 602; Cooper v. Granger, 108 N. W. 193; Roberts Schafer Go. y. Jones, Ark., 101 S. W. 165.</p> <p>Press of business does not incapacitate a judge so as to authorize the calling in of another judge. C. L. 1897, sec. 882; in re Bignolds Settlement Trusts, 26 L. T. Rep. N. S.176; in re Munger, 41 Sup. N. Y. 882; State v. Williams, 48 Ark. ,227, 2 S. W. 843; People v. O’Neil, 47 Cal. 109; Caldwell v. Barrett, 71 Ark. 310,, 74 S. W. 748; C. L. 1897, sec. 905; ReY. St. 1887, sec. 1865; ini re Millington, 24 Kan. 214.</p> <p>A judgment rendered or proceedings had at a time not appointed by any law for the holding of the court is void for the want of jurisdiction. Kidd v. Burke, 142 Ala. 625, 38 Southern 241; McMillan v. City of Galsden, 39 Southern 569; Ins. Co. Y.,Pappe, 4 Okl. Í10, 43 Pac. 105; Cooper y. Am. Cen. Ins. Co., 3 Colo. 318; Bates v. Gage, 40 Cal. 183; Meyers y. Fast Bench Ins. Co., Htah, 89 Pac. 1005; Davidsburg v. Knickerbocker Ins. Co., 90 N. Y. 526; Olds Wagon Works v. Benedict, C. L. A., 67 Fed. 1; Cyc. Page 673; Note 44 and cases cited.</p> <p>Each county in New Mexico has a separate, independent District Court. Organic Act, see. 10.</p> <p>The statutes disclose a legislative intent not to limit the duration of the terms of court. Laws of 1855, pp. 19, 21; Laws of 1859, p. 62; Laws 1860, p. 86; Laws of 1861, p. 96; Laws of 1863, p. 92; Compiled Laws of 1865, p. 112; Laws of 1866, p. 154; Laws of 1868, p. 88; Laws of 1869, chapter 8, see. 6, chapter 24, sec. 13; Laws of 1874, p. 48; Laws of 1876, p. 37; Laws of 1878, p. 59; Laws of 1880, p. 63; Prince’s Laws, p. 71; Laws of 1895, p. 51; Laws of 1897, pp. 15, 88; Laws ,of 1899, p. 26; Laws of 1901, pp. 30, 134; Laws of 1903^ pp. 16, 131, 135; Laws of 1905, pp. 11, 44, 65, 204, 355, 367; Laws of 1907, pp. 67, 104; Laws of 1909, pp. 1, 245, 327.</p> <p>The beginning of a term of court in one county^0| a district, does not necessarily end the term immediately preceding, in another county of -the same district. White v. Brown, 38 S. W. 335, Ind. Terr.; King v. Sears, 91 Ga. 577; Stirling v. Wagner, 4 Wyo. 5; in re MacDonald, 4 Wyo. 150; State v. Leahy, 1 Wis. 259; Florida v. Phosphate Co., 70 Fed. 885; Gonzales v. Cunningham, 164 1J. S. 626; Borrego v. Territory, 8 N. M. 446; Gonzales v. Cunningham, 164 IT. S. 612; Territory v. Netherlin, 85 Pac. Eep. 1044; Territory v. Armijo, 14 N. M. 210.</p> <p>STATEMENT OF THE CASE.</p> <p>The appellant was convicted of murder in Dona' Ana. County, in the Third Judicial District, May 15, 1909.</p> <p>After verdict and before sentence a motion in arrest of judgment was made on the ground that the term of court begun for said county as provided by law, April 5, 1909, expired .by limitation of law, May 3, 1909, on which date, according to the provisions of Chapter 95, Session Laws of 1905, a term of court was to begin in Sierra County in said district. A term did in fact begin there, with another Associate Justice presiding by request of the District Judge. The appellant claims that thereby the term of court in Dona Ana County ended and his trial was a nullity. The motion in- arrest of judgment was overruled and the defendant 'was sentenced. From that action of the District Court he appealed to this court.</p>

<p>SYLLABUS.</p> <p>1. Chapter 54, Laws 1899, contains a specific delegation of power to the city- councils and hoards of trustees of cities, or incorporated1 towns.</p> <p>2. Chapter 31, Laws of 1909, contains no grant of power to the city council, nor does it take away any power theretofore granted. It permits a majority in value of the owners, of real estate in a city or in a portion of a city, to make public improvements independently of the city government.</p> <p>3. -Chapter 31 of the Laws of 1909 does not repeal Chapter 54 of the Laws1 of 1899.</p>

McFie, Associate Justice. No briefs filed. STATEMENT OF THE CASE.

<p>Appeal from the District Court for Rio Arriba County before .John R. McFie, Associate Justice.</p> <p>Anything tending to show bias or prejudice on the part of the witness or anything which shows his friendship . or enmity is a proper subject of inquiry. Blitz v. IT. S., 153’ U. S., L. ed. 727; Moore v. TJ. S., 150 TJ. S. 57, 37 L. ed. 996; Thiede v. Utah, 159 U. S. 518, 40 L. ed. 242; Goldsby v. U. S., 160 ÍT. S. 70, 40 L. ed 343; Mexia v. Oliver, 148 U. S. 664, 37.L. ed. 602; Deery v. Cray, 5 Wall. 795; Gilmore v. Higley, 110 U. S. 47; Smith v. Shoemaker, 17 Wall. 630; Railroad Co. v. O’Brien, 119 U. S. 108; 1 Digest of U. S. Sup. Ct. Rep. 683, sec. 5035; Brann v. U. S., 168 U. S. 532, 42 L. ed. 568; Gregg v. Moss, 14 Wall. 564; Origet v. Heddin, 155 U. S. 228; Fidelity and Deposit Company v. Courtney, 186 U. S. 351; Shephard v. Railroad Co., 130 U. S. 426; 3 Enc. Ev., pp. 850-858; Santa Ana v. Harlin, 99 Calif. 538; Mayhew v. Taylor, 8 Gray, Mass., 172; Stark v. People, 5 Denio 106.</p> <p>The fact of conviction is not conclusive impeachment but is rebuttable, in other words, the conviction may be explained. Sims v. Sims, 75 N. Y. 466; Smith v. State, 64 Md. 752; Read v. State, 66 Nebr. 184; Railroad Co. v. Runnells, 46 S. W. 394; Scott, v. State, 47 S. W. 731; Wolkoff v. Teft, 12 N. Y. Sup. 464; Gertz v. R. R. Co., 137 Mass. 79; Railroad Co. v. McCleish, 115 Fed. 268; 7 Enc. Ev. 242; in re Noble, 124 Til.' 267; Winter v. Judkins, 106 Ala. 261; The People v. Shaver, 120 Calif. 354; Fairfield Packing Co. v. Fire Insurance Co., 44 AtL. 317; Commonwealth v. Rnapp, 9 Pick. 496, 511; Russell v. Coffin, 8 Pick. 143, 154; Rex y. Clark, 3 Stark, 341; Webb. y. State, 39 Ohio St. 351.</p> <p>There were two grounds upon which the exclusion of ' the questions by defendant’s» counsel was justifiable, first, because it was sought thereby to inject into the case a collateral issue which could not properly be tried, and, second, because the questions were of an insulting character, tending to humiliate and degrade the witness, and it was within the sound discretion of the court not to permit such examination. 3 Wigmore on Evidence, sec. 983; Turnpike Coal Co. v. Loomis, 33 N. Y. 133.</p> <p>When the witness admitted the fact of his conviction of an infamous crime in the district court, he admitted, necessarily, the existence of a record of that fact. Such a record is conclusive as to everything appearing therein. 3 Wigmore on Evidence, secs. 980, 1116.</p> <p>The opinion includes a statement of the essential facts.</p>

<p>Appeal from the District Court for Bernalillo County,</p> <p>The de jure officer may recover from the de facto officer the salary and fees of the office received by the latter. Sandoval v. Albright, 93 Pac. Rep. 717, N. M., and cases cited pp. 718, 719; 1 Selwyn’s Nisi Prius. 81; Boyter v. Dodsworth, 6 Term Rep. 681; Allen v. McKean, 1 Sumner 317; Powell v. Milbank, 1 Term Rep. 399; Glasscock v. Lyons, 38 Am. Dec. 299; -Howard v. Wood, 2 Lev. 245; Lightly v. Cloiinston, 1 Taunt. 112; Dolliver v. Parks, 136 Mass. 499; Schlenckér v. Risley, 3 Scammon 483, 38 Am. Dec. 101; Mayfield v. Moore, 53 111, 428; Wenner v. Smith, 9 Pac. Rep. 293, 298 and authorities cited; Pooler v. Reed., 73 Maine, 129-130; People v. Webber, 89 111. 348, 384; Territory ex rel. Hubbell v. Armijo, 89 Pac. Rep. 267; South Ottawa v. Perkins, 94 H. S. 260, 24 L. ed. 158; Stadler v. City of Detroit, 13 Mich. 346, 349; People v. Norstrand, 46 N. Y. 375, 382, 383; Waterman v. Chicago and Iowa R. R.- Co., 32 Am, St. Rep. 235; Inhabitants of Springfield v. Butterfield, 56 Atl. Rep. 581, 582; Bates v. Clark, 95 H. S. 204, 24 L. ed. 471, 473; Poindexter v. Greenhow, 114 D. S. 270; Short v. Symmes, 150 Mass. 299; Fowler v. Bebee, 9 Mass. 234; Howard v. Wood, 2 Lev. 245; People v. Tieman, 30 Barb., N. Y. 193, 194; Stratton v. Oulton, 38 Cal. 45, 51, 58; Pearce v. Hawkins, 3 Swan, Tenn. 89; Conklin v. Cunningham, 7 N. M. 445, 454, 455; Eldodt v. Territory, 10 N. M. 141, 145, 149; Hubbell v. Armijo, 13 N M. 490; Hunter v. Chandler, 45 Mo. 453, 454, 456, 457; Bradshaw v. Sherwood, 43 Mo. 179; Turnipseed y. Hudson, 19 Am. Eep. 663.</p> <p>Where one has received an appointment to a public office, from an authority vested with power to make such appointment, and is qualified in ■ accordance with the statutory requirements, the law will presume, in the first instance, that appointment was legal, and that appointee is the rightful incumbent to the office designated. Conklin v. Cunningham, 7 N. M. 445; Eldodt v. Territory, 10 N. M. 141; Hubbell v. Armijo, 13 N. M. 490; 13 A. & E. Enc. Law 147, 1 ed.; Werner v. Smith, 9 Pac. Eep. 397; Bradshaw v. Sherwood, et al., 43 Mo. 179; Hunter v. Chandler, 45 Mo. 457, 458; Waterman v. Chicago &i Iowa Ey. Co. 33 Am. St. Eep. 338; McManus v. City of Brooklyn, 5 New York, Supp. 434; Hagan v. City of Brooklyn, 5 N. Y., Supp. 435; 17 Iowa 535; 17 Conn. 585; 33 Mo. 180; 38 Mo. 544; 35 Mo. 156; 36 Mo. 71; 34 Mo. 395.</p> <p>Quo warranto is the proper action when the person proceeded against is either a de facto or de jure officer in possession of the office. Eldodt v. Territory, 10 N. M. 141; People v. Quail, 2 Wend. 12; People ex rel Peter Rumple y. Board of Supervisors Kings County, 96 N. Y., Sup.; Court Reports, 89 Hun. 38; Wood y. Peake, 8 Johns 69; Wyldie v. Washburn, 16 Johns 49; The People v. ex rel Seeman, 5 Denio 109; People v. Head, 25 111. 290; High on Legal Remedies, secs. 73, 75; Cornwall v. Lambert, 10 Minn. 369; Cornwell v. Athren, 3 Mass. 268; Re Strong Petitioner, 20 Pick 495; Ewing v. Turner, 35 Pae. 951; State.ex rel y: Churchill, 75 Minn. 455; People ex-rel Kelly v. Common Council, N. Y. 503; People ex rel Hodgkinson y. Stevens, 5 Hill 628; Morris v. People, 3 Den. 396; People v. Lane, 55 N. Y. 217; Wren y. G-oetting, 133 N. Y. 569; Auditors Wayne Co. v. Benoit, 20 Mich. 176; Hubbell v. Armijo, 13 N, M. 490; Griebel v. State, 111 Ind. 369, 12 N. E. Rep. 700; Williams v. State, 6 S. W. 845; State v. Owen, 63 Tex. 261; Owen v. State, 64 Tex. 500; State v. Meehan, 45 N J. 189; Territory y. Ashenfelter,'4 N. M. 85, 12 Pac. 879; People v. Waite, 70 111. 25; Algood v. Jones, 60 N. H. 543'; People v.Callahan, 83 111. 128; State v. Hickson, 27 Ark. 398; Colwell v. Bell, 6 Ark. 227; Hull y. Superior Court, 63 Cal. 174; People y. Seannell, 7 Cal. 433; Palmer y. Woodberry, 14 Cal. 43; State v. Buckley, 61 Conn. 290; Harrison v. Simmons, 44 Conn. 318; Duane v. McDonald, 41 Conn. 517; State v. North, 42 Conn. 86; Smith v. People, 140 111. 167; People v. Whitcomb, 55 111. 172; State v. Gallagher, 81 Ind. 558; Babriel v. State, 111 Ind. 369; Brown y. Cohen, 122 Ind. 113; Parson v. Durand, 150 Ind. 203; State y. Wilson, 30 Kan. 666; Neilson v. State, 39 Kan. 154; Tillman v. Otter, 93 Ky. 600; French v. Cowan, 79 Me. 426; Commonwealth v. Allen, 128 Mass. 310; Atty. Gen’l. y. Surmon, 111 Mass. 258; Con. v. Hawks, 123 Mass. 525; Atty. Gen’l. v. Salem, 103 Mass. 138; Fuller y. Ellis, 98 Mich. 96; Lindsey v. Atty. Gen’l., 33 Miss. 338; Loper v. Millville, 53 N. J. L. 362; Robersin v. Bavonne, 58 N. J. L. 325; Brown v. Meehan, 45 B. J. L. 189;'People v. Lane, 55 N. Y. 219.</p> <p>Where the title of an office is in dispute, the right to the salary, fees and emoluments thereof, cannot be tried until the right to the office itself has been finally determined. Meredith v. Sacramento Co., 50 Cal. 433; Dorsy v. Smyth, 208 Cal. 21; Carroll v. Seibenthaler, 37 Cal. 193; Lee v. Wilmington, 1 Mary, Del. 65; Garley v. Louisville, 47 S. W. 265; Dickerson v. Butler, 27 Mo. App. 9;, Iiagan v. Brooklyn, 126 N. Y. St. Eep. 944; Selby v. Portland, 14 Oregon, 243, 58 Am. Eep. 307; 17 Ene. of P. & P.,'pp. 163, 407; Conklin v. Cunningham, 7 N. M. 445; Eldodt v. Territory, 10 N. M. 141; McVeany v. New York, 80 N. Y. 185; 14 Barb., N. Y. 173; Brady v. Theritt, 17 Kan. 471; Desmond v. McCarty, 17 Iowa, 525; Gil-ray’s Appeal, 100 Pa., State Past 5; Commonwealth v. Graham, 64 Past 342; Jenkins v. Baxter, 160 Past 200; 25 111. 325; 41 Mo. 247; 9 Pac. 297; 52 Ala. 559; 14 Am. & Eng. Enc. of Law, 3 P. 143; Deane v. State, 56 Neb. 302; Hubbell v. Armijo, 89 Pac. Eep. 267; Glasscock v. Lyon, 38 Am. Dec. 299; Allen v. McKeen, 1 Eed. Cases 489; Dolliver v. Parks, 136 Mass. 444; Schlenkner v. Eisley, 3 Scammon 483, 38 Am. Dec. 101; Mayfield v. Moore, 53 111. 428; Werner v. Smith, 9 Pac. 293'; Pooler v. Eeed, 73 Me. 128, 130; People v. Weber, 89 111. 348; Stevens v. People, 89 111.; South Ottawa v. Perkins, 94 N. S. 260; Stadler v. City of Detroit, 13 Mich. 346; People ex rel. Norstrand, 46 N. Y. 375; Waterman v. Chicago & Iowa Ey. Co., 32 Am. States Eep. 235; Springfield v. Butterfield, 55 Atl. 581; Bates v. Clark, 95 H. S. 204; Poyndexter v. Greenhow, 114 II. S. 270; Eowler v. Basbe, 9 Mass. 243; People v. Tienan, 30 Barb., N. Y. 193; Stratton v. Oulton, 28 Cal. 45; Pearce v. Hawkins, 2 Swan, Tenn. 89; Baca v. Parker, 13 N. M. 466; Deane v. State, 56 Neb. 302; Albright v. Territory, 13 N. M. 72.</p> <p>The action of the Governor in attempting to remove appellant from office of superintendent of schools is not, reviewable in this action. Conklin v. Cunningham, 7 N. M. 459, 460; Eldodt v. Territory, 10 N. M. 148, 149.</p> <p>STATEMENT OF THE FACTS.</p> <p>Vigil who was plaintiff below, alleged in his complaint that at the November election, 1904, he had been duly elected superintendent of schools for the County of Bernalillo for the term beginning January 1st, 1905, and ending December 31st, 1906; that he duly qualified and entered upon the discharge of the duties of said office and continued in- the discharge thereof until September 7, 1905, when the defendant with force and arms and intimidation wrongfully took possession of said office against the protests of plaintiff, and that the, defendant collected the fees of said office for the unexpired portion thereof; and the plaintiff prayed a recovery of such fees from the defendant. The defendant answered admitting the election and qualification of the plaintiff, but denied that he did with force and arms take possession of the office, alleging, however, that there was a vacancy in said office on August 31, 1905, and that the governor of the Territory duly commissioned and appointed defendant to fill such vacancy, and further denied owing plaintiff any sum óf money whatever. To which answer the plaintiff made reply admitting the issuance 'of the commission of appointment and the appointment by the governor, but denied that at. the time alleged in the answer there was a vacancy in said office and also denied that the governor had any right, power or authority to appoint defendant to the office, or to remove plaintiff therefrom, and charged the defendant’s appointment so made was without legal force or effect and was void.</p> <p>To the reply and complaint defendant filed a demurrer stating as grounds thereof that this action is not maintainable :</p> <p>(a) Because it necessarily involved the trial of the title of th-e office of superintendent of schools of Bernalillo County.</p> <p>(b) Because the possession of the commission of the governor gave defendant a prima facie title to the office, which title could not be questioned except in proceedings in the nature of a quo warranto.</p> <p>The court below sustained the demurrer and entered judgment dismissing the complaint, from which judgment the plaintiff appeals.</p>

<p>Appeal from the District Court from Grant County before Frank W. Parker, Associate Justice.</p> <p>Evidence improperly admitted. Crawford v. Christian, 102 Wis. 51.'</p> <p>Testimony of physicians to the effect that defendant was insane was relevant on the question of sanity at the time of the alleged crime. Freeman v. People, N. Y., 4 Denio 9, 47 Am. Dee. 216; People v. Farrel, 31 Cal. 576; 2 Greenleaf Ev. 690.</p> <p>Instruction requested by defendant,but refused and which correctly stated the law, should have been given. Aquilar v. Ty., 8 N. M. 496; Ty. v. Baca, 11 N. M. 559; Davis v. TT. S., 160 TT. S. 469; Coffin v. TT. S., 156 U. S. 432; Ty. v. Lucero, 8 N. M. 543, 558; Ty. v. Anderson, 4 N. M. 213.</p> <p>Definition of insanity. Davis v. TT. S., 165 TJ. S. 373, 41 L. ed. 750; Bitter v. L. Ins. Co., 169 TT. S. 149; Butler v. State, 102 Wisconsin 364, 367; Guiteau’s Case, 10 Fed. Bep. 161.</p> <p>Although sanity is presumed to be the normal state of the human mind, yet where insanity is once proven to exist, it is presumed to continue until the presumption is overcome by contrary or repelling evidence. State v. Wilner, 40 Wis. 304; State v. Spencer, 21 N. J. L. 196; 7 Enc. of Ev. 456, 462; 12 Cyc. 165.</p> <p>The common law forbids the trial, the sentencing, or the punishment of an insane person. Freeman v. People, 4 Denio 9; Cases cited in Cen. Dig., Title Crim. Law, secs. 1391, 1392; C. L. 1897, sec. 1929; State v. Gould, 40 Kan. 258, 19 Pac. 739; Weber v. Commonwealth, 119 Pa. St. 223, 4 Am. St. Bep. 634.</p> <p>In criminal cases where a defendant pleads not guilty, the court has no power to direct a verdict of guilty even where the incriminating evidence is conclusive or uncontradicted. 12 Cyc. 373, 595; Territory v. Kee, 5 N. M. 510; C. L. 1897, sec. 1929.</p> <p>The presumption of innocence was itself to be considered as evidence in favor of the defendant under his plea of not guilty. Coffin v. TT. S., 156 TT. S. 432; Davis v. TT. S., 160 TT. S. 469; Territory v. Lucero, 8 N. M. 543; 22 Enc. PI. & Pr. 894, 895.</p> <p>The practice of singling out small portions of a charge . and attempting tó predicate reversible error thereon without reference to the other instructions is condemned. Pinkerton v. Ledoux, 3 N. II. 410; Territory v. Garcia, 12 N. M. 98; Territory v. Livingston, 13 N. M. 318; TJ. S. v. Densmore, 12 N. M. 106.</p> <p>The essential facts are stated in the opinion.</p>

<p>SYLLABUS.</p> <p>1. Where it was impossible to test' a plow purchased by appellant in accordance with the warranty first given, and it is mutually agreed that it should be tested on other lands, this amounts to the making of a new contract and a substitution of che place of test of the implement, all other terms of the sale remaining the same.</p> <p>2. This court will not disturb findings supported by substantial evidence.</p>

Mann and John R. McFie, Associate Justices. The judgment granting an injunction and appointing a receiver, with or without the subsequent order of sale, was a final and therefore'an appealable judgment.

Abbott, Associate Justice. The mere fact that the witness is sick or out of the jurisdiction, or that his whereabouts are unknown so that he can not be reached by subpoena is not enough. Under-hill on Criminal Evidence, sees. 361, 363, 363) Cooley on Constitutional Limitations, sec. 318, 5th ed.; 1 Bishop Crim. Proc., sec. 1195, 3d ed.; People v. Newman, 5 Hill, N. Y. 295; H. S. v. Angelí, 11 Fed. 34, Syllabus; Thompson v. State, 17 So. 512, Ala., Syllabus; Southern Ry.

Pope, Chief Juctice. . Without statutory authority, a railroad company cannot lawfully change its line. Drown v. Railroad Co., 126 Ga. 251 and cases cited; Railway Co. v. Woodyard, 226 111. 335; Lusby v. Railroad Co., 73 Miss. 368; State v. Railroad Co., 86 Miss. 196; Railway Co. v. Kirkland, 129 Ga. 557; Leverett v. Railway Co., 96 Ga. 389; Railroad Co. v. Maylor, 2 Ohio St. 239; Moorhead v. R. R. Co., 17 Ohio, 351-2; Railroad Co. v. Railroad Co., 31 N. J. L. 208.

Pope,- Chief Justice. Where there is no dispute as to the facts, the question of what is a reasonable time for the performance of a contract is for the court. Nunez v. Dautel, 19 Wall. 560, 22 L. ed. 161; Herkinson v. Dry Placer Co., 6 Colo. 274; 9 Cyc. 615; Luckhart v. Ogden, 30 Cal. 547.

Cooley, Associate Justice. If the machinery in question was not purchased or furnished to be used in the construction, alteration or repair of this particular mining claim no lien would lie against such claim. Sec. 2217, C. L. 1897; Hill v. Bishop, 25 111. 349, 79 Am.

Abbott, Associate Justice. Arraignment and reception of the plea in a criminal' trial is absolutely of no legal validity when such action tabes place elsewhere than at the county seat of the county in which the indictment was found, C. L. 1891, secs. 903, 904, 905, 1050, 3398, 3422; Laws of 1899, chap. 4, sec. 2; H. S. v. Crain, 162 H. S. 631, 645; Co. Litt. 263 a; 2 Hale’s PI. Cr. 219; 4 Bl. Com. 322, 341; 1 Chitty’s Cr.

Cooley, Associate Justice. Court erred in sustaining objection to, question asked for purpose of showing actual rental value of property involved. C. L. 1897, sec. 3360.

The power of a state legislature over public municipal revenues. Laws of 1907, chapter 65, section 2; Laws of 1909, chapter 57; Dillon, vol. 2, secs. 766, 767; Gaslight Co. v. Clarke, 95 U. S. 654; Hunter et al, v. City of Pitts-burg, 207 H. S. 177, 179; Worcester v. Worcester Consolidated St. Ry. Co., 196 H. S. 548; 28 Cyc. Law and Proc. 310; People v. Morris, 13 Wend., N. Y. 330, 331, 337; Blanding v. Burr, 13 Cal. 351; State ex rel.

McFir, Associate Justice. Default is tantamount to a complete denial of plain-, tiff’s cause of action and requires of the court that it have .full proof thereof, before it gives judgment therefor. Blair r. Bartlett, 75 N. Y. 150; Freeman on Judgments, see. 330; White v. Merritt, 7 N. Y. 352. The power of the trustee to take legal proceedings to enforce payment of the amount secured should be strictly construed. Guaranty Trust Co. v; Green Cove Railroad, 139 TJ.

_ Appeal from the District Court for the County of Bernalillo, before Ira A. Abbott, Associate Justice. ■ Suit should have been brought within one year from the time such action accrued. C. L. 1897, sec. 3311; Ware v. Howley, 37 N. W. 789, 68 Iowa 633. Counterclaims.

H. Pope, Chief Justice. Contract was void because it was in restraint of trade. 2 Beach Cont., art. 175; Moore v. Bennett, 140 111. 69, 15 L. R. A. 364, 29 N. E. 891. . The proper measure of damages is the loss to plaintiff. Gregory v. Speiker, 110 Cal. 150, 42 Pac. 576; Peltz v. Eichele, 62 Mo. 171, 180; Lashus v. Chamberlain, 5 Utah 140, 13 Pac. 361; Howard v. Taylor, 90 Ala. 241, 8 So. 36; Warfield v. Booth, 33 Md. 63; 2 Sedgw. Dam. 632.

McFie¡, Associate Justice. The territorial engineer is the only proper authority to pass upon the practicability, public utility and general effectiveness of any proposed system of irrigation in this territory. Pueblo of Nambe v. Romero, 10 N M. 58, 61; Newcombe v. White, 5 N M. 435; Bull v. Sotithwick,. 2 N M. 321; McCarville v. Boyle, 89 Wis. 651; Howell v. Mills, 53 N. Y. 322; Mills v. Davis, 53 N Y. 349; Appeal of Vaux, 109 Pa. St. 497.

II. Pope, Chief Justice. Where a person responsible either by operation of law or express contract, to another has notice of a suit against the latter, and an opportunity to appear and defend, the judgment rendered in the action will be conclusive on him whether he appeared or not. 23 Cyc. 1270; Nathan v. Rehkopf, 57 111. App. 212; Robbins v. City of Chicago, 4 Wall. 657; American Bell Telephone Co. v. National Imp. Telephone Co., 27 Eed. 663; Doty v. Hawkins, 25 Amer.

Parker, Associate Justice. Until delivery of the escrow holder or the happening of the event upon which delivery is conditioned, the instrument is ineffectual for any purpose. 16 Cyc. and eases cited; Stiles v. (Brown, Í6 Vt. 563; Stanley v. Valentine, 79 111. 544; Parrott v. Parrott, 1 Hei-sk 681; Henry v. Carlson, 90 Ind. 412; Skinner v. Baker, 79 111. 496; Morgan v. Carter, 48 Minn. 501.

Pope, Chief Justice. The suit should have been brought in the judicial district in which the property lies. C. L. 1897, secs. 882, 2950, par. 4; Laws 1905, chap. 79, sec. 75; A. & E. Enc. of Law, 2 ed., 65; Booth v. Clark, 17 How. H. S. 335; Holmes v. Sherwood, 16 Eed. 727, and cases cited; Smith on Eeceiverships 56, 122 and cases cited. The facts and circumstances must be set out in the complaint from which the insolvency of the company shall appear.

<p>SYLLABUS (BY THE COURT.)</p> <p>1. An action brought by a taxpayer to restrain a board of county commissioners from contracting .for or erecting a court bouse or jail at a certain town because said town was not tbe lawful,county seat of that county, for tbe reason that tbe act of tbe legislature designating said town to be the county seat is unconstitutional and void, is a collateral attack on tbe validity of tbe location of said county seat and therefore not maintainable.</p>

<p>Appeal from the District Court for Santa Fe County before John E. McFjb, Associate Justice.</p> <p>The claims were open for relocation. Eev. St. H. S., see. 2324; Saunders et al, v. Mackey, 6 Pac., Mont., 361; Doherty v. Morris, 16 Pac., Colo., 911; Lockhart v. Wills, 54 Pac., N. M., 336; Book et al, v. Justice Mining Co., 58 Fed. 106; Belk v. Meagher et al, 104 H. S. 279'; Oscamp v. Crystal .River M. Co., 58 Fed. 293; Book v. Justice Mining Co., 58 Fed. 106.</p> <p>If the defendant below, as receiver, was in possession of the propertjq then the plaintiff had an adequate remedy at law in the form of an ejectment. The Lebanon Mining Co. v. The Con. Eep. M. Co., 6 Colo. 371; Sears v. Taylor, 4 Colo. 38.</p> <p>Appellant was not a trustee under a constructive trust. 1 Parsons on Contracts 427.</p> <p>A witness should be permitted to explain the circumstances under which the affidavit was made. Matter of Blain, 16 Daly, N. Y., 540, 16 N. Y. Sup. 874, 879; Perry v. Perry, 2 Bard Ch., N. Y. 285, 288; 2 Moore on Facts, 1106, 1107; Coker v. Dawkins, 20 Fla. 141; Anderson v. Collins, 6 Ala. 783; Muller v. Legendre, La., 17 South. 500.</p> <p>Fraud must be proven by the preponderance of the evidence. Means v. Flanagan, 79 111. App. 246; State Sav. Bank of Missouri Yalley v. Emge, Iowa, 108 N. W. 530; Hutchinson v. Poyer, 44 N. W. 327, 79 Mich. 337; Redwood v. Eogers, 53 S. E. 6, Ya.; Bowe v. Gage, 106 N. W. 1074, 127 Wis. 245.</p> <p>Appellant at most was nothing more than an- independent contractor. Powell v. Virginia Const. Co., 88 Tenn., 13 S. W. -691; Harris v. McNamara, 97 Ala. 181, 12 So. 103; Barg v. Bonsñeld, 65 Minn. 355, 68 N. W. 45; Burns v. McDonald, 57 Mo. App. 599; Casement v. Brown, 148 H. S. 615; Indiana Iron Co. v. Craig, 19 Inch App. 565-, 48 N. E. 803, 807.</p> <p>Confidential and fiduciary relation. Robins v. Hope, 57 Cal. 493, 497; Story Eq. Jr. 218; McDermott Mining Co. v. McDermott, 69 Pac. 715.</p> <p>Fraud in securing the property is the essential element, to impose a constructive trust. Crissman v. Keester, 223 111. 69, 79 N. E. 58; Scribner v. Meade, Ariz., 85 Pac. 477; Davis v. Davis, Pa., 65 A. 622.</p> <p>It has been repeatedly held that to show a constructive trust, the proof must be clear and convincing. Schrough v. Anthes, Neb., 98 N. W. 676.</p> <p>A fiduciary relationship existed. I Lindlev on Mines, 1 ed., sec. 407; Argentine Mining Co. v. Benedict, 18 Utah 183, 55 Pac. 560; Largey v. Bartlett, Mont., 44 Pac. 962, syllabus; Lockhart v. Kollins, 21 Pac. 413; Utah Min. and Man. Co. v. Dickert & Myers Sulphur Co., 21 Pac. 1002; Moore v. Crawford, 130 Ú. S. 122, 32 Law ed. 878; Butler v. Watkins, 13 Wall. 456, 20 L. ed. 629; Angle v. Chicago St. P. M. & O. B. Co., 151 U. S. 1; Lockhart v. Leeds, 195 U. S. 427, 49 Law ed. 263; Sanders v. Mackey, 5 Mont. 523, 6 Pac. 361; Dougherty v. Morris, 11 Colo. 16 Pac. 911; Lincoln v. Sierra Gold Mining Company, 25 Fed. 337; Wilson v. Castro, 31 Cal. 420; Salmon v. Symonds, 30 Cal. 301; Bludworth v. Lake, 33 Cal. 256; Hardy v. Hardin, 4 Sawy. 549; Hunt v. Patchin, 35 Fed. 816; Fisher v. Bishop, 2 Am. St. Pep. 257, syllabus.</p> <p>Ejectment. Lockhart v. Johnson, 181 IT. S. 561, L. ed., 45, 979.</p> <p>STATEMENT OP THE CASE.</p> <p>On the 6th day of April, 1909, appellant filed suit against F. J. Otero, as special master, and alleged that on the 1st day of January, 1908, in the County of Santa Fe, one Joseph DeLallo, a naturalized citizen of the United States discovered and located certain mineral lands in the Los Cerrillos Mining District, Santa Fe County, New Mexico, under the name of the “Square Deal,” “York,” “Gold Coin” and “Zinc Blend.” The complaint then sets forth, the amount and character of work done upon said four mining claims.</p> <p>That on the 16th day of March, 1909, Joseph DeLallo, as locator of said mining claims, conveyed the same to Michael O’Neill, the appellant in this cause. The complaint then alleges that F. J. Otero, special master and appellee, was on the 7th day of January, 1909, appointed special master in a certain cause then pending in the District Court for Santa Fe County, wherein Thomas K. D. Maddison was plaintiff and the Consolidated Mining & Smelting Company was defendant and as such special master, appellee was authorized tó sell at public auction certain lands, mining claims and premises belonging to the defendant corporation, the Consolidated Mining & Smelting Company, and among the property which said special master was directed to sell were the following mining claims: "Tom Paine,” "Golden Eagle,” "Sukie,” "SuMe, Jr.,” "Albany” and “Santiago” mining claims also situate in the Los Cerrillos Mining District in said County of Santa Fe; that said six mining claims were valid and existing mining claims containing an area of 300 to 1500 feet surface ground and had been located many years prior thereto; said complaint then alleges that during the year 1907, the annual assessment work or the expenditure of $100 upon each of said mining claims was not done or performed, and by reason of such failure to cause to be done $100 worth of work, the said six mining claims, last above mentioned, became and were abandoned and forfeited and reverted to the United States, and on the 1st day of January became a part of the public unoccupied mineral lands and subject to location by any person or persons qualified under the mining laws to locate mining claims, and that the said Joseph DeLallo located the ground covered by. the six mining claims, last above mentioned, in the names of the "Square Deal,” “York,” "Gold Coin” and “Zinc Blend” mining claims, each of said claims containing an area of-600 by 1500 feet surface ground.</p> <p>It was further alleged that the said four claims, last above mentioned, covered practically- the surface ground that was covered and claimed under the six mining claims, owned and claimed by the Consolidated Mining & Smelting Company. Said plaintiff further alleged that the said F. J, Otero, as special master, had advertised said six mining claims, together with other property for sale at public auction, under and by virtue of a decree rendered in said cause wherein said appellee was appointed special master; said sale was advertised to take place on the 14th day of April, 1909, at the front door of the court house in Santa Fe County, New Mexico. The plaintiff and appellant prayed for an injunction enjoining and restraining said F. J. Otero, as such special master, from offering for sale and from selling the said six mining claims and from in any manner interfering with or disturbing appellant in his quiet and peaceable possession of said premises, under and by virtue of the location thereof made by the said Joseph DeLallo, who had conveyed the same to Michael ONeill, appellant, by deed March 16, 1908.</p> <p>Attached to the complaint is a copy of the location notices filed by DeLallo and the deed from DeLallo to appellant. Upon the filing of said complaint, a temporary writ of injunction was issued and made returnable on the 12th day of April, 1909.</p> <p>The defendant and appellee filed an answer to said complaint on the 10th day of April, 1909, and denied each and every material allegation in said complaint alleged with reference to the location of said premises by Joseph DeLallo and denied that the annual assessment work upon said six mining claims, owned by the Consolidated Mining & Smelting Company, had not been done and performed for the year 1907, and denied that the said ground was on the 1st day of January, 1908, subject to location or that the said corporation had forfeited or abandoned said mining claims.</p> <p>The appellee admitted that he was appointed special master in that certain suit brought by Thomas K. D. Maddison, ■ as plaintiff, against the Consolidated Mining & Smelting Company, as defendant, and alleged that under and by virtue of the decree and the order appointing him, he was authorized and directed to sell and dispose of at public auction the property in said decree described which belonged to the Consolidated Mining & Smelting Company and further admitted that included in the advertisement that was then being published in the Santa Fe New Mexican, was the said “Tom Paine,” “Golden Eagle,” “Sukie,” “Sulrie Jr.,” mining claims and also the “Albany” and “Santiago” mining claims, and •defendant denied that the said six mining claims, above mentioned, were abandoned by the owner thereof during the year 1907, by failure to do the annual assessment work required by the laws of the United States and the Territory of New Mexico, and denied that on the 1st day of January, 1908, the ground covered by said six mining claims, last above named, was public domain and subject to location by any person or persons authorized under the mining laws of the United States to explore, discover and locate mineral lands; and said elefendant and appellee further denied that the said Joseph DeLallo did on the 1st day of January, 1908, discover and locate said four mining claims, called the “Square Deal,” “York,” “Gold Coin” and “Zink Blend.”</p> <p>Appellee admitted that he had advertised the said six mining claims for sale, together with other property, and that it was his intention to sell the same at public, auction on the 14th day of April, 1909, together with all improvements thereon. He likewise admitted that if the said sale took place and the court approved the same, that he would convey to the purchaser thereof the property described in said notice of sale, and said appellee admitted that unless restrained by the court he would at the time and place in said notice of publication set forth, sell said property at public auction. Appellee in his answer further alleged that Hie said Michael O’Neill, appellant, in this cause, had ever since the year 1903, performed or caused to be performed the annual assessment work of the value of $100 on each of said six mining claims, owned by the Consolidated Mining & Smelting Company, including the year 1907; and further alleged that the said Michael O’Neill commenced to' do the work upon said mining claims in the month of September, 1907, under and in pursuance of an agreement made by and between one W. A. Brown, the agent and representative of the Consolidated Mining & Smelting Companjy with the said Michael O’Neill, and that the said appellant. informed the agent of the said Consolidated Mining & Smelting Company on the 27th day of December, 1907, that the annual assessment work upon the said four mining claims had been done and performed'for the year 1907, and would be completed on the “Santiago” and “Albany” by the 5th day of January, 1908.</p> <p>Appellee further alleged that on the 3rd day of January, 1908, he was appointed receiver of all the property belonging to the Consolidated Mining & Smelting Company, under and by virtue of an order made in'the case brought by the said Thomas K. D. Maddison, as plaintiff, against the Consolidated Mining & Smelting Company, and as such receiver he duly qualified and took possession of the property belonging to said company and on the 30th day of January, .1908, one W. A. Brown, the agent and representative of appellee, as receiver, in said cause, tendered to the said O’Neill the sum of $200 for and on account of the annual assessment work done for the Albany and Santiago mining claims, and further alleged that appellant in the early part of December, 1907, commenced to do the annual assessment work upon the Santiago and Alban}^ mining claims and if the $100 worth of work had not been completed on the 1st day of January, 1908, that appellant continued to perform the work upon said mining claims, until at least $100 worth of work had been done.</p> <p>Defendant and appellee further alleged fraud and conspiracy on the part of the said ONeill and a combination entered into between appellant and DeLallo Bros, and denied that the appellant was entitled to an injunction.</p> <p>Upon the hearing of the motion to dissolve the temporary injunction, the court continued the injunction until-the final hearing of the case and thereafter appellant filed a reply to the answer denying in general all the new matter set up by appellee and especially denied that he had performed any work upon said six mining claims on account of the annual assessment work for the j^ear 1907.</p> <p>Defendant and appellee was permitted by the court to amend his answer and alleged and charged that appellant, Michael O’Neill, acting as the agent of the Consolidated Mining & Smelting Company, wrongfully, wilfully and fraudulently concealed from said company and its agent and representative W. A. Brown, the fact that the said annual assessment work upon said six mining claims had not been done- for the year 1907, and thereafter combined and fraudulently conspired with Thomas DeLallo and Joseph DeLallo, or one or both of them, and procured them to-relocate said six mining claims in the names of the “Square Deal,” “York,” “Gold Coin” and “Zinc Blend” for the purpose of defrauding and defeating the title of said com■»*pany to the same; and defendant further alleged that the said Michael O’Neill, appellant, in order to wrongfully and fraudulently deceive the said company and its representative, W. A. Brown, falsely represented to said Brown that he liad performed the annual assessment work upon said six mining claims, as required by law for the year-1907, and defendant by way of cross complaint alleged that the said Michael O’Neill did on the 5th day of August, 1907, agree to and with W. A. Brown, the agent and representative of the Consolidated Mining & Smelting Company, that he would do the annual assessment work upon said six mining claims for the year 1907, and was to receive the sum of $100 for the work done upon each of said claims, making a total sum of $600, and defendant further alleged that whether or not the said appellant did actually do -the annual assessment work upon said six mining claims according to his contract and agreement, that after the 1st day of January, 1908, and after the said Joseph DeLallo had pretended to relocate said six mining claims, the said Michael O’Neill, caused to be done at least $100 worth of work upon each of said mining claims owned by the Consolidated Mining & Smelting Company, although he claimed that the work was done on behalf of Joseph De-Lallo upon the claims so claimed to have been relocated by him, and defendant alleges that by virtue of the fraud, combination and conspiracy between the said O’Neill and the DeLallo Bros, that the said appellant should be decreed a trustee to have done the work for the use and benefit of the mining company for the year 190ff, and the defendant further alleged that the appellant when he -acquired title to said property in March, 1909, by receiving a deed from Joseph DeLallo, did,so with full knowledge of all the equities and rights of the Consolidated Mining & Smelting Company in and to the same, and defendant prayed that the pretended location notices alleged to have been posted upon said claims by the said Joseph DeLallo on the 1st day of January, 1908, pretending to locate the same under said four names, be ordered cancelled and that the deed from Joseph DeLallo to appellant be likewise cancelled and held for naught and that appellant be required to quit claim to the Consolidated Mining & Smelting Company or to the defendant as receiver any lien, right, title or interest claimed by him, under and by virtue of the said deed and that he be decreed to be trustee ex-maleficio and to hold whatever title he had in said property for the use and benefit of the Consolidated Mining & Smelting Company and for the defendant receiver thereof, and that the work and labor performed upon said mining claims under the pretended re-location thereof by the said Joseph DeLallo be decreed to be done for the use and benefit of said com¡oany or the receiver.</p> <p>Appellant filed a reply to the amended answer denying each and every allegation of new matter therein set forth.</p> <p>At the close of the evidence the court made nineteen findings of fact and thereafter rendered a decree in accordance with the findings of fact.</p> <p>Of the saicl findings two only are necessary to a consideration of this case, as follows:</p> <p>“That the plaintiff, Michael O’Neill on or about August 5th, 1907, promised and agreed with the Consolidated Mining & Smelting Company through one W. A. Brown, its duly authorized agent and representative, to do and perform the annual assessment work on each of said six mining claims, amounting to not less than one hundred dollars ($100.00) iipon each of said claims for the year 1907, and at the time of such promise an agreement to do 'said work said plaintiff did not demand payment in advance or security for the work proposed to be done, and said plaintiff from time to time thereafter notified said company, through its agent W. A. Brown, that the work upon, four of said claims was being done, and had been done, and that the work upon the Santiago and Albany claims was being done and prosecuted and such work would bo continued until the full amount of assessment work of one hundred dollars ($100.00) had been done upon each of them.”</p> <p>"That the Consolidated Mining and Smelting Company and its agent from past business relations with plaintiff, who did the assessment work upon said mines for several years prior to 1907, relied upon the promise and agreement of the plaintiff to do the assessment work upon all of said six mining claims for said year 1907. That the said Michael O’Neill wrongfully, purposely, intentionally and fraudulently failed to do the work upon the said six claims as he had promised and agreed to do, in order to deceive and defraud said company and thereby prevent said Consolidated Mining and Smelting Company from doing or having the work done upon said claims for the year 1907, and that thereafter said plaintiff entered into a combination and conspiracy with Joseph DeLallo and Thomas DeLallo, either one or both of them, to relocate said mines and actually participated, aided and assisted ihe said Joseph DeLallo and Thomas DeLallo, or either or both of them, in the relocation of said mining claims, after midnight of the 31st day of December, 1907. That with the assistance and aid of the said plaintiff they pro-tended to have relocated said claims between midnight and four or five o’clock in the morning of the first day of January, 1908.”</p> <p>Two of the conclusions drawn by the court upon the foregoing findings of fact are also necessary to a determination of this case. They are in words as follows:</p> <p>"The court further finds that the plaintiff Michael ONoill having promised and agreed to do the annual assessment work upon said six mining claims for the year 1907 as herein found, occupied a confidential and fiduciary relation with the Consolidated Mining and Smelting Company and that the relocation of said mining claims in the manner in which the court has found whereby plaintiff participated, that any benefits that accrued therefrom would and should be for the benefit of the owner, the Consolidated Mining and Smelting Company and not the re-locator thereof.”</p> <p>“The court therefore finds as a matter of law that the plaintiff by reason of the facts herein found became trustee of said mining claims for the use and benefit of the Consolidated Mining and Smelting Company, the owner of said Tom Payne, Golden Eagle, Sukie, Sukie Jr., Santiago and Albany claims and that any and all work done or performed upon said claims by plaintiff or under his directions prior to December 31, 1907, or after January 1, 1908, whether claimed or pretended to have been done on the said- claims as relocated, be decreed to have been done for the use and benefit of the said six mining claims and the said Consolidated Mining and Smelting Company, the owner thereof.”</p> <p>Dpon the statements of facts and conclusions of law the court entered a decree dismissing the injunction and granting the defendant the affirmative relief sought in his amended answer by way of cross complaint. From the decree so entered the ¡Dlaintiff appealed to this court.</p>

<p>Appeal from the District Court for Bernalillo County before Ira A. Abbott, Associate Justice.</p> <p>Appellant was agent not factor. 3 Words and Phrases 2640; 19 Cyc. 186; Eickel v. Sawyer, 44 Fed. 845; Delaune v. Agar, La., McGloin 97, 100; State v. Thompson, 25 S. W. 346, 348, 120 Mo. 12; Story Ag\, sec. 33; Edgerton v. Michels, 26 N. W. 748, 750, 66 Wis. 124; Ruffner v. Hewitt, 7 W. Va., 585, 604, 605; Commonwealth v. Keller, 9 Pa. Co., Ct. Rep. 253, 255; Graham v. Duckwall, 71 Ky., 8 Bush. 12, 17; Kellogg v. Costello, 67 N. W. 24, 26, 93 Wis. 232; Higgins v. Moore, 34 N. T. 417, 418.</p> <p>Right of factor to control property for his interest and indemnity. Talcott v. Chew, 27 Fed. 276; Heffner v.. Gynne-Treadwell Cotton Co., 160 Fed. 635, 87 C. C. A. 606; The Frances, 8 Cranch, 418, 419, 3 L. ed., 609; Brown v. McGran, 14 Peters, 479, 10 L. ed. 550; Field v. Farrington, 10 Wall. 141, 19 L. ed. 923; Eichel v. Sawyer, C. C., 44 Fed. 845, 850; Field v. Farrington, 10 Wall. ■141; Brown v. McGran, 14 Pet. 479, L. ed. 10, 550.</p> <p>Disputed questions of fact should have been submitted to the jury. Aetna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154 Fed. 545; Etting v. Bank, 11 Wheat. 59, 6 L. ed. 419; Rankin v. Fidelity Trust Co., 189 H. S. 242, 253, 23 Sup. Ct. 553, 557, 47 L. ed. 792; Railway Co. v. Ives, 144 H. S. 408, 417; Chicago & N. W. Rv. Co. v. De Clow, 124 Fed. 142, 145, 61 C. C. A. 34, 37;Trav-elers5 Ins. Co. v. Melick, 65 Fed. 178, 181, 12 C. C. A. 544, 547, 27 L. R. A. 629; Railway Co. v. 'Jarvi, 3 C. C. A. 433, 437, 438, 53 Fed. 65, 69; Fuel Co. v. Danielson, 6 C. C. A. 636, 57 Fed. 915; Railroad Co. v. Kelley’s Aclm’rs, 3 C. C. A. 589, 593, 53 Fed. 459, 463; Railway Co. v. Ellis, 4 C. C. A. 454, 456, 54 Fed. 481, 483; Mc-Namee v. Hunt, 87 Fed. 298, 301, 30 C. C. A. 653, 655; West v. Smith., 101 H. S. 263, 270, 25 L. ed. 809; Brown v. McGran, 14 Pet. 477, 493, 10 L. ed. 550; Goddard v. Foster, 17 Wall. 123, 142, 21 L. ed. 589; Blakely v. Gregg,' 8 Wall. 242, 268, 19 L. ed. 409; Barreda v. Silsbee, 21 How. 146, 167, 16 L. ed. 86; Turner y. Tates, 16 How.' 14, 23, 14 L. ed. 824; Richardson y. City of Boston, 19 How. 263, 270, 15 L. ed. 639; Nash v. Classon, 45 N. E.. 276, 277, 163 111. 409; Roberts v. Bonaparte, 20 Atl. 918, 73 Md. 191, 10 L. R. A. 689; Eureka Fertilizer Co. v. Baltimore, etc., R. Co., 27 Atl. 1035, 1036, 78 Md. 179; Gassett v. Glazier, 43 N. E. 193, 195, 165 Mass. 373; 1 Thompson on Trials, sections 1086, 1113, 1114; 4 Wig-more on Evidence, sec. 2556; Sigerson v. Pomeroy & Andrews, 13 Mo. 620.</p> <p>A factor who wrongfully sells goods of his principal below the price limited in his instructions, is presumptively liable for damages as if the limited price were the true value of the goods, but evidence that the factor acted in good faith, and the limited price could not have been realized, and that the property was sold at the full market price at the time of the sale, is admissible and then if the factor is liable at all, he is liable for the highest value that the wool, of the same kind and character of appellee’s, was sold for at any time up to the institution of the suit. Frothingham v. Everton, 12 N. H. 239; George McNeill, 26 Am. Dec. 498.</p> <p>Allegations of time, quantity, value, etc., need not be proved with precision. C. L. 1897, sec. 2685, sub-secs. 68, 78, 85, 94, 96; H. S. v. Le Baron, 4 Wall. 648; Gray-son v. Lynch, 163 H. S. 476; Marshall v. Russell, 44 N. II. 509; Little v. Blunt, 33 Mass. 365; Jordan v. Cooper, 3 Serg. & Saw., Pa., 576; Biven v. Bostwick, 70 Cal. 639.</p> <p>Defendant was plaintiff’s factor. Slack v. Tucker, 23 Wall. 330; Heffner v. Gwynne-Treadwell Cotton Co., 160 Fed. Rep. 638, 639; Brown v. McGran, 14 Peters 479; Field v. Farrington, 10 Wall. 141; Gallagher v. Jones, 129 IJ. S. 193. .</p> <p>There was no conflict of evidence'upon any material point. Rankin v. Fidelity Trust Co., 189 IJ. S. 253; McGuire v. Blount, 199 IJ. S. 147, 148; Empire State Cattle Co. v. Atchison Ry. Co., 210 IJ. S. 9, 10; Noble v. Crane & Co., 169 Fed. Rep. 59, 60; Railway Co. v. Lowery, 74 Fed. Rep. 463; Travelers’ Ins. Co. v. Randolph, 78 Fed. Rep. 754.</p> <p>The measure of damages adopted by the court below is not properly reviewable in this court. Cunningham v. Springer, 204 IJ. S. 647; George v. Emery, 107 Pac. 3; T. & P. Ry. Co. v. Book, 151 IJ. S. 73; Frothingham v. Everton, 12 N. H. 239; Majmard v. Pease, 99 Mass. 555; Sutherland on Damages, vol. 3, sec. 777, vol. 4, sec. 1119; McKinley v. Williams, 74 Fed. Rep. 103; Loraine v. Cartwright, 15 Fed. Cases 870; George v. Emery, 107. Pac. Rep. 3.</p> <p>STATEMENT OP THE CASE.</p> <p>This suit was brought by appellees against appellant to recover damages. The appellees alleging that appellant as their factor had in its possession a large amount of wool, which appellees had instructed appellant to hold for 18 cents per pound, but that appellant had failed-to obey said instruction and had sold said wool at a less price to appellee’s damage. Appellant denied relation of factor. Case was tried to a jury. Verdict directed in favor of appellees.</p>

A. Abbott, Associate Justice. Judges of election are not ministerial officers but quasi judicial officers vested with discretion and involving the •exercise of judgment in the counting of ballots, while the canvassing boards.is ministerial and has only to compute results from the returns as given to them. C. L. 1897, secs. 2443, 2446, 2447, 692; Bull v. Southwick, 2 N. M. 321; Territory v. County Com., 5 N. M. 1; Re Sloan, 5 N. M. 590.

<p>Appeal from the District Court for Liucolu County before Merritt C. Meohem, Associate Justice.</p> <p>Laws 1909, Chapter 80, is local and special legislation in violation of Springer Act. People v. Supervisors, 43 N. Y. 16; Matter v. Henneberger, 155 N. Y. 424, 427; People v. O’Brien, 38 N. Y. 193'; Ferguson v. Ross, 126 N. Y. 464; Com. v. Patten, 88 Pa. St. 260; Davis v. Clark, 106 Pa. St. 260; McCarthy v. Com. 110 Pa. St. 246, et seq.; Montgomery v. Co., 91 Pa. St. 125; Devine v. Commissioners, 84 111. 591, et seq.; State v. Herman, 75 Mo. 346; Seowdens App. 96 Pa. St. 424-5; Klolde v. Dodge, 103 111. 125; State v. Mitchell, 21 Ohio St. 592; State v. Judges, 21 Ohio St. 11; Strange v. Dubuque, 62 Iowa 205; Suth. on Stat. Const., secs. 127, 128, 129, and cases cited; Smith’s Com., sees. 595, 596; Sedg. Const. Law 32; 1 Potters Dwarris on Stats. 354, 355; Ex-Parte Westerfield, 55 Calif. 552; Desmond v. Dunn, 55 Calif. 251; Zeigler v. Gad'is, 44 N. J. L. 363; Hammer v. State, 44 N. J. L. 669; Bouvier Daw Dictionary “local”; 1 Kent Comm. 415; 3 Bouvier’s Institutes 95; Jacobs Law Diet, “statute”; 2 Dwarris on Stat. 463; Van Giessen v. Bloomfield, 47 N. J. L. 442; Closson v. Trenton, 48 N. J. L. 440; Wheeler v. Philadelphia, 27 P. P. S. 338; Kilgore v. MaGee, 4 Nor. 401.</p> <p>Laws 1909, chapter 80, never was legally enacted. IJ. S. E. S., sec. 1842; Field v. Clark, 143 IT. S. 671; Pang-born v. Young, 32 N. J. L. 30; Cooley on Con. Lira., 7 ed. 124; IJ. S. Constitution, article 1, sec. 7; 3 Wigmore, sec. 1684; 23 A. & E. Enc. of Law, 1 ed. 192.</p> <p>Ballot was misleading and deceiving. C. L. 1897, sec. 631, par. 2; C. L. 1897, secs. 1701, 1706, 1801; Laws 1903, chap. 64, sec. 1; Tally v. Grider, 66 Ala. 122; Lanier v. Padgett, 18 Florida, 843, 844; McKinney v. Commissioners, 26 Fla. 264, et seq.; Zeiler v. Chapman, 54 Mo. 305-6; State v. Woodson, 67 Mo. 336; State v. Albin, 44 Mo. 349; Pitkin v. McNair, 56 Barb. 77-8; People v. Kopplekom, 16 Mich. 342; Nefzger v. Eailway, 36 la. 644; State v. Piper, 17 Neb. 618, 619.</p> <p>The election was void because there was no registration of voters. Laws Í909, ch. 80, C. L. 1897, secs. 1709, 1710; McCrary on Elections, secs. 135, 193; State v. Scarburox, 110 N. C. P. 232; Smith v. Board of Co. Comms., 45 Fed. 725.</p> <p>The legislature of the Territory cannot confer judicial power to determine the validity of an election upon the board of county commissioners. IJ. S. E. S. 1874; Himike v. Dold, 7 N. M. 11, 12; Garcia y Barela v. Barela, 6 N. M. 245; Payne v. Hook, 7 Wall. 430; Barry v. Hull, 6 N. M. 643.</p> <p>It is upon defendants to show that expenditures for public buildings made by the name of repairs were not such repairs as added or changed the old buildings in a manner to adapt them for use as a court house and offices. Pipeline Co. v. E. E. Co., 67 N. J. L. 278; City of Catlettsburg v. Self, 74 N. W. 1064.</p> <p>Material allegations not controverted. C. L. 1897, sec. 2665, sub-sec. 67.</p> <p>The legal enactment of Council Bill No. 86 was not called in question by the plaintiff in the court below and cannot be raised for tbe first time in an appellate conrt. Nall v. Wabash & St. L. & P. Ry. Co., 97 Mo. 75; Commissioners of Highways v. Chicago & N. W. Ry. Co., 34 111. Appeals 35; Bennett v. Mo. Pac. Ry. Co., 105 Mo. Rep. 642, 645; Transfer Co. v. Canty, 103 111. 423; Carlile, 18 Colo. 461.</p> <p>Question of conflict of laws 1909, ch. 80, with Springer Act was not raised in court below and should not be considered on appeal. Nall v. Wabash, 97 Mo. 75; Com. v. Ry. Co., 34 111. Ap. 35; Bunnell v. Ry. Co., 105 Mo. Rep. 642, 645; Transfer Co. v. Canty, 103 111. 423; Hunel y. Carlile, 18 Colo. 461.</p> <p>Laws 1909, ch. 80, is valid. Codlin v. Board of County Commissioners, 9 N. M. 565.</p> <p>The approval or non-approval by Governor of Laws 1909, ch. 80, not in issue. Nall v. Wabash, etc., 97 Mo. 75; Com. v. Ry. Co., 34 111. App. 35; Bennett v. Ry. Co., 105 Mo. Rep. 642, 645; Transfer Co. v. Canty, 103 111. 423; Hunel v. Carlile, 18 Colo. 461.</p> <p>If a later act covers the 'whole subject of the first and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act. TJ. S. v. Tynen, 11 Wall. 88, 89; Bartlett v. King, 12 Mass. 545; Commonwealth v. Cooley, 27 Mass., 10 Pick. 37; Tracy v. Tuffy, 134 H. S. 206.</p> <p>The mere showing that the act as deposited in the secretary? office fails to show compliance with a rtfre of each house as to authentication in the place of the journals of each house, in the face of the message .of the governor, the endorsements of the chief clerks of each branch of the legislature to the effect that the bill was passed by the legislature, is not sufficient to justify the holding that the law. is invalid. Cottrell v. State, 9 Nebr. 125; Leavenworth Co. v. Higenbothem, 17 Kans. 74; Taylor v. Wilson, 17 Nebr. 88; McDonald v. State, 80 Wis. 407; In re Ryan, 80 Wis. 414.</p> <p>The court was without jurisdiction in this case. 1C A. & E. Enc. of Law, 2d ed., 816; Parmenter v. Bourne, 35 Pac. 586; Hipp v. Charlevoix Co., 62 Mich. 456 and cases cited.</p>