Volume 16 — New Mexico Reports

Parker, Associate Justice. “The existence or nature of a conspiracy cannot be established by the acts or declarations of one conspirator in the absence and without the knowledge and concurrence of the other. 3 Ene. of Ev. 411 h; 1 Green on Ev., 13 ed. 134, sec. Ill; 26 Eed. Cas. No. 15,685, p. 1106; U. S. v. Newton, 52 Eed. 285; Benton j. Minneapolis Tailoring and Mfg. Co. 267; Reisan v. Mott, 42 Minn. 49, 43 N. W. 691; U. S. v. Smith, 26 Eed. Cas. 1144, Case No. 16,322.

A court may refuse to give the instruction in the exact language in which the request is made, but it must then give an instruction of its own which substantially directs the jury as to the law of the case. 1 Bishop’s New Criminal Law, sec. 731; State v. Massey. 41 Am. Bep. 478.

Abbott, Associate Justice. The defendant in a criminal prosecution has a right to be present in court' at the time the jury is discharged before they have arrived at a verdict. The action of the court in discharging the jury in the manner set up in the plea constituted an acquittal of the defendant. State v. Wilson, 50 Ind. 487, 19 Am.

Abbott, Associate Justice. If sufficient affidavit is not filed, the attachment writ and all proceedings under it are void.

<p>SYLLABUS.</p> <p>1. Under C. L. 1897, sec. 3244, requiring that service of writ he made five days before the return day, the day of service or the return day being excluded in making up the five days, service at any hour of November 19 was sufficient for any hour of November 24 as return day.</p> <p>2. In absence of ¡statutory' provisions, judicial acts, including judgments on holidays, are valid.</p> <p>3. Defendants had adequate remedy through appeal, or writ of certiorari and if they were misled to their injury by respondent, they may have had a good cause of action against him for damages.</p> <p>4. Prohibition is an extraordinary judicial prerogative writ “to be used with great caution and forbearance for the furtherance of justice, and for securing order and regularity in all the tribunals where there is. no other regular and ordinary remedy.”</p>

<p>Appeal from the District Court for Bernalillo County, before Ira A. Abbott, Associate Justice.</p> <p>Instruction as to various degrees of murder. C. L. 1897, .secs. 1064, 1065, 1070; Whart. Horn., sec. 159; Sanders v. State, 41 Tex. 206; Connor v. State, 23 Tex. App. 378; Sidberry v. State, 135 Ind. 690; Griggs v. IT. S., 158 Fed. 578; 38 Minn. 439; 62 Mich 329; 25 Oregon 241.</p> <p>Self-defense. 3 Wharton’s Horn. 473, note 1; Carnes v. Com., 87 S. W. 1123; State v. Hudspeth, 150 Mo. 12; Arnold v. Com., 51 S. W. 483; State v. Ballou, 20 R. I. 607; People v. Lynch, 101 Cal. 229; Clay v. State, 44 Tex. Cr. 129; State v. Bartlett, 170 Mo. 658; Maiden v. State, 11 So. 488; Rowe v. H. S-, 164 U. S. 546; Whart. Horn. 476, 477, 483; Perkins v. State, 78 Wis. 551; May v. State, 23 Tex. App. 146; Ball v. State, 29 Tex. App. 107; Harris v. People, 32 Col. 211; Ritchie v. People, 23 Colo. 314; Belle v. State, 17 Tex. App. 538; People v. Gonzales, 71 Cal. 569; State v. Mathews, 148 Mo. 185; Carnes v. Com., 87 S. W. 1143; Bohannon v. Com., 8 Bush. Ky. 482; Hitner v. State, 19 Ind. 48; Story v. State, 99 Ind. 413; Granger v. State,-5 Yerger 459; Erwin v. State, 29 Ohio St. 198; Stoneman v. Com., 86 Ya. 525; Runyan v. State, 57 Ind. 83; Harris v. State, 30 Tex. App. 548.</p> <p>Weight of evidence. C. L. secs. 2994, 3431.</p> <p>New trial on account of new evidence. TJ. S. v. Biena, S N. M. 100; Dennis v. State, 103 Ind. 151; Lindly v. State, 11 Tex. App. 284; 3 Gra. & Wat. on New Trial 1043; Turnley v. Evans, 3 Hump. 224; G. F. M. Co. v. Mathes, 5 N. H. 577; Patters on v. Berry, 4 Minn. 481; Lindley v. State, 11 Tex. App. 284; Curtis v. State, 6 Cold. 9; Mee. F. & I. Co. v. Nicholls, 1 Harrison 410; Robbins v. Fowler, 2 Pike 133; Smith v. Matthews, 6 Mo. 600; Com. v. Williams, 2 Ashmead 69; Com. v. Murray, 2 Ashmead-41; Grover v. Woolsey, Dud. Ga. Rep. 85; Abies v. Donley, 8 Tex. 331; Patterson v. Barry, 4 Binn. 481; Fabrillas v. Cock, 3 Burrows 1771; G. F. & N. Co. v. Mathes, 5 Me.* 574; Carr v. State, 106 Ga. 742; Thompson v. State, 60 Ga. 619; Dale v. State, 88 Ga. 552; 1 Spelling on New Trials, see. 221; Bussey v. State, 69 Ark. 547; Mann v. State, 14 Tex. 644; G. F. M. Co. v. Mathews, 5 N. H. 174; Richardson v. Fisher, 1 Benj. 145; People v. Talmage, 114 Cal. 431; Territory v. Armijo, 7 N. M. 437; Faulkner v. Territory, 6 N. M. 490.</p> <p>Malice aforethought is an essential ingredient in the crime of murder both in the first and the second degree. C. L. 1897, secs. 1060, 2054, 2997; Aguilar v. Territory, 8 N. M. 504; Territory v. Lucas, 8 N. M. 551; Maher v. People, 10 Mich. 212; Territory _ v. Caldwell, 14 N. M. 343; Territory v. Watson, 12 N. M. 420; Territory v. O’Donnel, 4 N. M. 208; Territory v. Yarberry, 2 N. M. 451; U. S. v. Amador, 6 N. M. 178; Territory v. O’Donnell, 4 N. M. 208.</p> <p>No assignment of error in criminal cases is required. C. L., secs. 1064, 2992, 2994, 2998, 2685, sub-secs. 119, 161, 171. Laws of 1907, ch. 57, secs. 37, 38, 46, 60; Suth. on Stat. Con., sec. 152; Territory v. Young, 2 N. M. 106; Territory v. Romine, 2 N. M. 125; Namaque v. The People, 1 Breeze, 111. 149; People v. McKay, 18 Johns 212; IP S. v. Amador, 6 N. M. 178; Territory v. Nichols, 3 N. M. 110; 1 Bish. Crim. Pro., sec 908; Proff. Jury Trial, sec. 328; Whart. Crim. P. & P., sec. 709; Territory v. Friday, 8 N. M. 207; C. L. 1884, sec. 2054; Aguilar v. Territory, 8 N. M. 502; Territory v. Chamberlain, 8 N. M. 541; Territory v. Guillen, 11 N. M. 194 ; Williams v. The Commonwealth, 80 Ky. 314; Rhea v. ÍP S., 6 Olda. 258; K. P. Ry. Co. v. Nichols^ 9 Kas. 176; Marbourg v. Smith, 11 Kas. 561; Kas. Pac. Ry. Co. v'. Nichols, 9 Kas. 235'; A. T. & S. F. Ry. Co. v. Repford, 18 Kas. 250; 9 Kas. 256; 25 Kas. 547; Bard y. Elston, 31 Kas. 276; Pelt v. Davenport, 42 Iowa 314; Hale v. Gibbs, 43 Iowa; Johnson v. Chicago Co., 51 Iowa 30; William v. Barnett, 52 Iowa 638; Williamson v. Chicago c0., 53 Iowa 143; Davenport Gas, Light & Coke Co. v. The City of Davenport, 13 Iowa 229; Territory v. Nichols, 3 N. M. Ill; Territory v. Lopez & Casias, 3 N. M. 165; Territory v. Cordova, 11 N. M. 371; Armijo v. Armijo, 4 N. M. 65; Perea v. Colorado Bank, 6 N. M. 4; Re3onond v. Newcomb, 10 N. M. 173; Bullard v. Lopez, 7 N. M. 563; McDonald v. Iíovey, 110 U. S. 614; Pennock v. Dialogue, 2 Pet. .1; Probst v. Trustees, etc., 3 N. M. 378; IJ. S. v. DeAmador, 6 N. M. 178; Territory v. O’Donnel, 4 N. M. 66; Faulkner v. Territory, 6 N. M. 479; Territory v. Friday, 8 N. M. 204; Territory v. Lucero, 8 N. M. 543; Territory v. Padilla, 8 N. M. 500; Territory v. Pino, 9 N. M. 603; Territory v. Perea, 1 N. M. 632; Hopt v. Utah. 110 TJ. S. 579; Reynolds v. Staab, 4 N. M. 606; Hack v. State, 124 N. W. 495; Wis.; Territory v. Sevalles, 1 N. M. 121; TJ. S. v. Schoemaker, 2 McLean 121; Crain v. H. S., 162 H. S. 643; Territory v. Watson, 12 N. M. 421; 11 Ene.. P. & P. 217.</p> <p>Reasonable doubt. C. L. 1065; Territory v. Friday, 8 N. M. 210; Allen v. TJ. S., 164 TJ. S. 497.</p> <p>The jury cannot disregard the testimony of a witness if it apears to be fair, is not unreasonable and is consistent with itself, and the witness has not been in any manner impeached except from mere caprice or without cause. City Bank v. Rent, 57 Ga. 283; Smith v. Grimes, 43 la. 356; Rockford R. I. & S. L. R. Co. v. Coultars, 67 111. 398; Oliver v. Pate, 43 Ind. 132. _</p> <p>Interest of witness in case. Unruh v. State, 105 Ind. 323; Dodd v. Moore, 91 Ind. 522; Woolen v. Whittaker, 91 'Ind. 502; Nelson v. Yorce, 55 Ind. 555; Greer v. State, 53 Ind. 420; Hartford v. State, 96 Ind. 461; State v. Sutton, 99 Ind. 300; Territory y. Romine, 2 N. M. 129; Law.s of 1880, chap. 6, sec. 23; Sec. 18, Act of July 32, 1851.</p> <p>The action of the trial court upon a motion for a new' trial is a matter of such judicial discretion that it cannot be assigned as error in the appellate court. TJ. S. v. Biena, 8 N. M. 100; H. S. v. DeAmadorj 6 N. M. 177'; Territory y. Webb, 2 N. M. 156; TJ. S. v. Densmore, 12 N. M. 109; TJ. S. v. Lewis, 2 N. M. 462; Territory v. Romero, 2 N. M. 475; H. S. v. Biena, 8 N. M. 105</p> <p>In criminal cases, if the court fails to instruct the jury fully and fairly as to the law^ it is the duty of the counsel for defendants to ask the court to give such instructions as thet^ think should be given, and in order that defendant may take advantage of such error, he must at the time the jury is instructed, except to the failure of the court so to instruct. Territory v. Caldwell, 14 N. M. 543; Territory v. Gonzales, 14 N. M. 35; Territory v. Watson, 12 N. M. 420; Territory y. OTDonnel, 4 N. M. 208; Territory y. Yarberry, 2 N. M. 454; IJ. S. v. Amador, 6 F. M. 178; Territory v. Ayer, 15 F. M. 581; U. S. v. Densmore, 12 N. M. 106; Territory y. Garcia, 12 N M. 98.</p> <p>Murder. C. L. 1060-1065.</p> <p>Reasonable doubt. State v. Morey, 25 Ore. 241; IT. S. y. Stearns, 27 Fed. Cas. 16, 392, pp. 1313, 1314; TJ. S. y. Butler, 1 Hughes 491; Ú. S. y. Johnson, 26 Fed. 685; H. S. v. Jackson, 29 Fed. 503; H. S. v. Jones, 31 Fed. 724; H. S. v. Cassidjr, 67 Fed. 782; Wallace v. State, 41 Fla. 580; Yann v. State, 83 Ga. 52; State v. Jefferson, 43 La. Ann/ 995; People v. Guidici, 100 N. Y. 599; State y. Morey, 25 Ore. 256; Emery y. State, 101 Wis. '655; Butler v. State, 102 Wis. 868; State v. Serenson, 7 So. Dak. 282; Cohen v. State. 50 Ala. 108; Hodge v. State, 97 Ala. 37; Territory y. Ayer, 15 N. M. 581.</p> <p>Self-defense. Allen y. TJ. S., 164 H. S. 497; 2 L. E. A. N. S. 49, note.</p> <p>It is quite proper to call the attention of a jury to the interest which such a defendant has in, the case. People y. Hitchcock, 104 Cal. 485'; Dunn v. People, 109 111. 642; Keating v. State, 93 N. W. 980; People v. Petmecky, 99 F. Y. 421; Yaughn v. State, 58 Ark. 362, 24 S. W. 885; Jones y. State, 61 Ark. 101, 32 S. W. 81; State v. Turner, 110 Mo. 198, 19 S. W. 645.</p> <p>.Where the court has once instructed as to the reasonable doubt doctrine so that it is applicable to everything in the case, it is not necessary to repeat that instruction as to the different matters about which instructions are given. Territory v. Price, 14 N. M. 263 ; Carleton v. State, 43 Feb. 373; MeCulley v. State, 62 Ind. 428; Carr v. State, 84 Ga. 250; State v. Rockett, 87 Mo. 666.</p> <p>Whenever, a defendant, in such a ease as the present one, offers evidence to show the bad character of the deceased, it is always competent in rebuttal for the prosecution to show his good character as a peaceable man and such evidence cannot be limited to mere reputation. 2 Bish. Crim. Proe., see. 609.</p> <p>STATEMENT OF FACTS.</p> <p>The defendant, Antimo Pettine, was indicted for the crime of murder by the grand jury of Bernalillo County, the indictment alleging, in the usual form, that on the fourth day of February, 1907, the defendant killed and murdered Benedito Berardinelli. To this indictment defendant pleaded “Not guilty,” and was tried before a jury, in November, 1908. The jury returned a verdict finding the defendant guilty of murder in the second degree. The Court gave seventeen paragraphs of instructions to the jury, to the giving of which instructions, (at the conclusion of the same) the defendant exempted in the following language: “To the giving of said instructions, and each and every one of them, and each paragraph thereof, the defendant then and there excepted.” The defendant also moved the court to instruct the jury in instructions contained in nineteen different paragraphs, all of which requested instructions were refused by the court, except in so far as they were included in the instructions actually given by the court. “To the judgment and decision of -the court in overruling said motion and refusing to give said instructions, or any one or any part thereof as prayed for, the said defendant then and there objected and excepted.” After trial and verdict the appellant filed his motion for a new trial, setting up seven grounds of error. The first and second grounds of error relate to the admission and rejection of evidence, but the evidence is not set out, and these two objections are not urged upon -appeal. The-third, fourth and sixth grounds of error in the motion for 'new trial were as follows: <c3. The court gave the jury illegal, wrongful, improper and misleading instructions in said cause, on the trial thereof, which were not asked for by the defendant, and which were objected to by the defendant at the time and exceptions taken to the overruling of the objection. 4. The court refused to give the jury legal, proper and pertinent and material instructions which, were asked for by the defendant on the trial of said cause, to which refusal the defendant then and there excepted.” "6.- The court did not instruct what, were the essential elements of murder in the second degree, or what the jury must believe to find the defendant guilty from the evidence.” The fifth ground of error related to the testimony of the witness Campagnoli. It appears from said assignment of error that Campagnoli made an affidavit, which is attached to the motion for a new trial, to the effect that certain testimony given by him upon the trial wras false, and it is alleged that such false testimony influenced the verdict of the jury. The seventh and last assignment of error in the motion for a new trial is merely the general saving assignment added to all motions for new trial and need not be considered upon this appeal. The motion for a new trial was oyerruled, to which ruling of the court the defendant duly excepted.</p>

Mills, Chief Justice. The value of the property involved in a suit for libel is not determined by the amount of damages asked by the plaintiff in his complaint. Dunlap v. Toledo Ry. Co., 50 Mich. 470; Works Jurisdiction of Courts 59; Wilson v. Daniel, 3 Dallas 403. Statute requiring brief and transcript to be printed should not be oppressively or technically construed.

<p>Appeal from the District Court for Chaves County before M. C. Mechem, Associate Justice.</p> <p>Parol evidence of a contract within the Statute of Frauds is inadmissible in evidence. Alexander v. Cleland, 13 N. M. 524; Williams-Hayward Shoe Co. v. Brooks, Wyo., 64 Pae. 342; Harris v. Frank, 81 Cal. 280, 22 Pae. 856; Hurt v. Ford, 142 Mo. 283, 44 S. W. 228, 41 L. A. R. 823; Bacon v. McChrystal, 10. Htah 290, 37 Pac. 563; 20 Cyc. 313.</p> <p>Agreement to extend time of written contract by parol is void. Emerson v. Slayter, 22 Howard, H. S. 28; Swan v. Seamans, 9 Wallace, H. S. 254; Kingston v. Walters, 14 N. M. 368; Platt v. Dearborn, 112 Cal. 634, 44 Pac. 1060; Blood v. Goodrich, 9 Wend., N. Y. 68, 24 Am. Dec. 121; Atlee v. Bartholomew, Wis., 33 N. W. 110; 5 Am. St. Rep. 103; Clark v. Pey, 121- N. Y. 470, 24 N B. 703; Ladd y. King, 1 R. L. 224, 51 Am. Dec. 624; Ry. Co. v. Smith, 106 Ga. 864, 33 S. E. 28; Unrah y. Taylor, Del., 43 Atl. 515; Jones v. Chamberlain, 97. 111. App. 328; Barton v. Gray, Mich., 24 N. W. 638; Mclntire v. Ajax, Utah, 60 Pac. 552; Randolph v. Mitchell, Tex., 51 S. W. 297; Bowman v. Wright, Neb., 91 N. W. 580, 92 N. W. 580; Hildebrand v. Pallot, 92 N. Y. S. 804, 46 Misc. 615; Willingham v. Drew, 117 Ga. 850, 45 S. E. 237; Kellog y. Olmstead, 25 N. Y. 189; Stickler y. Giles, 9 Wash. 147, 37 Pac. 293; Alaska Co. y. Domenico, 117 Fed. 99, 54 C. C. A. 485; Arnold v. Scharbauer, 118 Fed. 1008; Ry. Co. y. Los Angeles Co., Cal., 61 Pac. 937; Barron v. Vanvert, 13 Ala. 232; Holliday v. Poole, 77 Ga. 159; State v. Davenport, 12 Iowa 335; Royal v. Lindsay, 15 Kas. 591; Coleman v. Applegartli, 68 Md. 21, 11 Atl. 284, 6 Am. St. Rep. 417; Price v. Cannon, 3 Mo. 453; Hunt v. Bloomer, 12 N. Y. 'Sup. 202; Kruger v. Klinger, Tex., 30 S. W. 1087.</p> <p>Where an attempted extension or modification of a contract is void, the original contract must be performed. Barton v. Gray, Mich., 24 N. W. 643, and cases cited above.</p> <p>Appellees cannot recover under the written .contract Boyd v. Camp, 31 Mo. 163; Kirchner v. Laughlin, 4 N. M. 394; Prestwood v. Eldridge, 119 Ala. 72, 24 So. 729; Lowell y. Rader,- 2 Grant Cas. 426; McGrann v. Ry. Co.. 29 Pa. St. 82; Malone v. Ry. Co., Pa., 27 At. 756; Dana v. Hancock, 30 Yt. 616; Briggs v. Ry. Co., 31 Yt. 211; Hydeville Co. v. Ry. Co., 44 Yt. 395; Stewart v. Griffith, 30 Supt. Ct. Rep. 528; Early Times Dist. Co. v. Zeiger, 11 N. M. 221, 67 Pac. 734; Ketchum v. Everton, 13 Johns, N. Y. 359; Wilcox v. Stitt, 65 Cal. 596, 4 Pac. 629; Cummins v. Rogers, 36 Minn. 317; Schmidt v. Williams, 72 Iowa, 317; 2 Warvelle Yendors, 2 ed., secs. 810, 828; Kimball v. Tooke, 70 111. 553; Cleary v. Folger, 84 Cal. 316, 24 Pac.-280; Grey v. Tubbs, 43 Cal. 359; 2 Warvelle Yendors, 2 ed., sec. 818.</p> <p>Appellee is precluded from recovering the amount of payments which were made by appellees and accepted by appellant within prescribed time. Stewart v. Griffith, 30 Sup. Ct. Eep. 528; Hansbrough, v. Peck, 5 Wallace, H. S. 497; Grey v. Tubbs, 43 Cal. 359; Green v. Green, 9 Cowden,, N. Y. ’46; Donahue v. Parkman, 161 Mass. 412; Chrisman v. Miller, 21 111. 227; Eeddish v. Smith, 10 Wash. 178, 38 Pac. 1003; Cutler v. Powell, Eng., 2 Smiths Lead Cas. 1 and note; Leonard v. Dyer, 26 Conn. 172,. C8 Am. Dec. 382; Hartley v. Decker, 89 Pac. 47.</p> <p>Not a case in which equity should disregard the Statute of Frauds. Converse v. Blumrich, 14 Mich. 109; Hidden v. Jordan, 21 Cal. 93; Gillett v. Knowles, 108 Mich. 602, 66 N. W. 497; Ochsenkehl v. JefEers, 32 Mich. 482; Damschroeder v. Green, 51 Mo. 100; Wood v. Eabe, 96 N. Y. 414, 48 Am. Eep. 640; Eyan v. Dox, 34 N. Y. 307, 90 Am. Dec. 696; Willnik v. Yanderver, 1 Barb'our, N. Y. 599; Sathre v. Eolff, Mont., 77 Pac. 431; Morrison v. Herrick, 130 111. 631; Koch v. Assoc., 137 111. 497; Martin v. Martin, 170 111. 639, 62 Am. St. Eep. 412; Montacute v. Maxwell,, 1 P. Will. 618; Jenkins v. Eldridge, 2 Story, C. C. 290; Purcell v. Coleman, 4 Wall. 513; Dunphy v. Eyan, 116 H. S. 491; Pond v. Sheehan, 111., 8 L. E. A. 417; Dicken v. McKinley, 111., 45 N. E. 134, 54 Am. St. Eep. 471; Hannon v. Hounihan, 85 Ya.’ 429, 12 S. E. 157; Down v. Drew, N. H., 42 Atl. 177; Smith v. Phillips, N. H.,r 43 Atl. 183; Glass v. Aulbert, 102 Mass. 28, 3 Am Eep. 421; 29 Am. & Eng. Ene., 2 ed. 831; 20 Cyc. 296; Slayter v. Emerson, 19 How., H. S. 224; 3 Cyc. 427.</p> <p>The failure of one of the parties to perform a condition, will not in every case defeat his right to specific performance. Kingston v. Walters, 14 N. M. 371; Cheney v. Libby. 134 H. S. 68; Hennesy v. Woolworth, 128 TL S. 438; Seton v. Slade, 7 Yes. 265; Levey v. Lindo, 3 Mari-vale 81; Hudson v. Bartran, 3 Madd. 440; Lilley v. Fifty .Associates. 101 Mass. 432; Potter v. Tuttle, 22 Conn. 512; Ahl v. Johnson, 20 How. 511; Swain v. Seaman, 76 HS. 254; Longfellow v. Moore, 102 111. 294; Fleming v. Gilbert, 3 Johns 597.</p> <p>Where one party to a contract before the time for performance by the other has arrived, consents on his request to extend- the time of performance until he gives notice of withdrawal, he is estopped to consider the latter in default though meanwhile the contract time has elapsed. Mayor, etc: v. Butler, 1 Barb. 337; Young v. Hunter, 6 N. Y. 204; Keating v. Price, 1 Johns 22; Esmond v. Van Beschotan, 12 Barb. 336; Clark v. Dales, 21 Barb. 42; Dodge v. Crandall, 30 N Y. 306; Whittier et al v. Dana et, al„ 10 Allen 326; Norman v. Waite, 46 N. W. 639; Thompson v. Poor, 42 N. E. 13; Michels v. Omstear, 14 Fed. 219; Brown-on Stat. Frauds, sec. 409, p. 423; 20 Cyc. 287; 9 Ene. Ev. 356.</p> <p>Where the party consents to a part payment and the other party acts upon it he cannot recall it.- Thompson v. Poor, 43 N. E. 13; Brown on Statutes of Fraud, 5 ed., sec. 437.</p> <p>STATEMENT OP THE CASE.</p> <p>On the day of its date the defendant, 'here the appellant, executed and delivered to the plaintiffs, here the appellees, this written memorandum: “McMillan, N. M., August 11,, 1904. Received of John H. Kingston and W. D. Mahoney, $100.00 part payment for 400 acres of land-located in Sec. 19 and 20 in Twp. 19, S. R. 26 E. There is to be $200,00 more paid on or before the 15th day from date. On payment of said $200.00 as stipulated the undersigned will place with the Citizens National Bank of Roswell, quit claim deed for said land to be- delivered on payment of $900.00 on or before 90 days from date. Fail-, ure to make payment as stipulated works a forfeiture of amount paid. (Signed) J. W. Walters.” The $100, the receipt of which it acknowledges, was actually paid at that time. Immediately afterwards, according to evidence for the plaintiffs, when the parties were about to separate and the train which the plaintiffs were to take was in sight coming toward the station where they were, the defendant, in response to a statement that fifteen days was too short a time for Mr. Kingston, one of the plaintiffs who lived in Northern New York, to get home and send the next payment, said he could have “five or ten days” more, and those present were called to witness his statement. It appeared by undisputed evidence that the defendant had a nephew. Mr. Smith, who was employed in the Citizens National Bank of Boswell. That he told the plaintiffs, Mr. Smith would attend to the matter for him. That the plaintiff, Mahoney, sent $100, half of the payment of $200, which by the written memorandum was to be made within fifteen days, by telegraph to the defendant on August 26th, and received his receipt for it. That the defendant was absent from Boswell several days covering the latter part of August and the first part of September. That he left with Mr. Smith a copy of the memorandum given the plaintiffs, with instructions to accept the $100 to complete the second payment if it should be paid August 26th or within five days thereafter. That on August 31, the plaintiff, Kingston, sent a money- order for $100 by telegraph to the defendant, in care of the Citizens National Bank, and that it was received at Boswell the same day. The manager of the telegraph company testified that he telephoned the Citizens National Bank after banking hours, August 31, that the money order was there, and Mr. Smith, replying, said Mr. Walter was at the Bast, and, it being after banking hours, he would call the next morning, which he did, but declined to receive the order on the ground that it did not arrive in time the day before. Mr. Smith testified that be was not notified of the arrival of the order until September 2, and that he then refused to receive it because it was past the time limit fixed by his instructions. On September 6, a draft for $100 was sent to the Citizens National Bank by the plaintiff Kingston, for the defendant, and the bank refused to accept it. On November 9, the plaintiffs tendered the defendant $1000, which he refused to accept. There was no evidence that the defendant absented himself from Boswell- to prevent the plaintiffs from having the opportunity to make the payment of $100. The defendant claims and holds the $200 he received as a forfeit under the memorandum. The cause was tried with a jury, and a verdiet rendered for the plaintiffs. Judgment-was rendered on the verdict, and the defendant appealed to this court.</p>

Appellant was not liable on written instrument on which his signature does not appear. Laws 1907, chap. S3, sec. 18; Luna v. Mohr, 3 N. M. 63; Webster v. Wray, Neb., 26 Am. Rep. 754; 1 Daniel Neg. Inst., 4 ed., sec. 409. Special agent, who executed written instrument, had but limited authority and instrument was without consideration. Bank of Commerce v. Baird Mining Co., 13 N. M. 424; Baum v. Palmer, Ind., 76 N. E. 108. Instrument had never been accepted by appellant.

<p>Error to the District Court for the County of Santa Fe, John R. McFie, Associate Justice..</p> <p>The so-called findings of fact are insufficient. C. L. 1897, sec. 2999; C. L. 1884, sec. 2060; Laws 1887, page 216; Lynch v. Grayson, 5 N. M. 493; Hathaway v. iBank, 134 U. S. 497; Mammoth Co. v. Salt Lake Co., 161 U. S. 447; Haws v. Yictoria Co., 160 U. S. 304; Chicago Tyre Co. v. Spalding, 116 U. S. 642; Allen v. St. Louis Bank, 120 U. S. 30; Smith v. Sac County, 11 Wall. 147; Young v. Amy, 171 TJ. S. 184; Runkle v. Burnham, 153 IJ. S. 217; Neslin v. Wells, 104 IJ. S. 429; Saltonstall v. Birt•well, 150 IT. S. 418; Chesapeake Ins. Co. v. Stark, 6 Oranch. 268; Barnes v. Williams, 11 Wheat. 415; Norris v. Jackson, 9 Wall. 127; Burr v. Navigation Co.,, 1 Wall. •102; Norris v. Jackson, 9 Wall. 127; McClure v. IJ. S., ■116 IJ. S. 151; Ward v. Cochran,■ 115 U. S. 599; Duncan ',v. The Francis Wright, 105 U. S. 387; Greene v. Williams, 21 Kas. 68; Lynch v. Grayson, 5 N. M. 493; Haight v. Tyron, 112 Cal. 6; Edgar v. Stevenson, 70 Cal. 287; Wunderlin v. Cadogan, 75 Cal. 618; Prince v. Lynch, 38 Cal. 530; Tewksbury v. Magraff, 33 Cal. 246; Miller v. Steen, 30 Cal. 407; Hidden v. Jordan, 28 Cal. 305; Wrigglcsworth v. Wrigglesworth, 45 Wis. 257; Mead v. Supervisors,' 41 Wis. 209; Williams v. Lumber Co., 72 Wis. 489; Wetzler v. Duffy, 78 Wis. 174; Catlin v. Henton, 9 Wis. 492; Sanford v. McCreedy, 28 Wis. 107; Munroe Water Co. ■ v. Frenchtown, 98 Mich. 436; Seeley v. Albrecht, 41 Mich. 527; People v. Littlejohn, 11 Mich. 62; ■Kahn v. Smelting Co., 2 Utah 382; Bradbury v. Bedbury, 31 Minn. 163; Huklin v. McClear, 18 Ore. 138; Noland v. Bull, 24 Ore. 481; Eakin v. McCraith, 2 Wash. Ter. 117; Searcy County v. Thompson,'66 Fed. 96; Chatham Furnace Co. v. Moffatt, 147 Mass. 406; Parham v. Gibbs, 84 Tenn. 296; Moore v. Barnett, 17 Ind. 349; Miller Linly, 1 Ind. App. 6; Stumph v. Miller, 42 Ind. 142; People v. Littlejohn,, 11 Mich. 60; Bank of Fort Worth v. Stout, 61 Tex. 567; Hartlep et al v. Cole, 120 Ind. 247;' Brundage v. Deschler, 131 Ind. 174; Hamilton v. Armstrong, 20 S. W. 1054; Smith v. Gale, 144 U. S. 510; Mining Co. v. Taylor, 100 U. S. 37; Levins v. Rovegno, 71 Cal. 275.</p> <p>Spanish church records are evidence of the highest character. Blackburn v. Crawford, 3 Wall. 175; 1 Green-leaf on Evidence, sec. 493; Starkie on Evidence, 297; Jones on Evidence, sec. 522; Wharton on Evidence, sec. 649; U. S. v. Chaves, 159 U. S. 459; Fremont v.' U. S., •17 How. 557; U. S. v. Perot,. 90 U. S. 428; Crespin v. U. S., 168 U. S. 212; Diccionario of Escriche, vol. 2, ed. 1847, title “Registro Parroquial,” page 806; Title “Nacimiento” 630; title “Muerte” 622; title “Libros Parroquiales” 628; C. L. 1897, sec. 3030; R. R. Co. y. McGlinn, 114 IJ. S. 542.</p> <p>Evidence insufficient to support defense under statute of limitations. Catron v. Laughlin, 11 N. M. 638; Trotter v. Cassady, 13 Am. Dec. 184; Barret v. Coburn, 3 Met., Ky. 513; Forward v. Deetz, 32 Pa. St. 72; Freeman on Co-Tenancy and Partition,, sec. 221; Adams v. Ames Iron Co., 23 Conn. 235; Newell v. Woodruff, 30 Conn. 498; Warfield v. Lindel, 38 Mo. 581; 30 Mo. 283; Prescott v. Nevers, 4 Mason C. C. 330; Tborton v. York Bank, 45 Mo. 161; Bailey v. Trammell, 27 Tex. 328; Chandler' v. Ricker, 49 Yt. 128; Buckmaster v. Needham, 22 Yt. G17; Roberts v. Morgan, 30 Yt. 617; Leach v. Beattie, 33 Yt. 195; Owen v. Morton, 24 Cal. 373; Wommack v. Whitmore, 58 Mo. 448; Squires v. Clark,' 17 Kas. 84; Ball v. Palmer, 81 111. 370; Shumway v. Holbrook, 11 Am. Dec. 153; 13 Am. Dec. 140; McClurg v. Ross, 5 Wheat. 124; 1 Washb. Real Prop. 656; Brown v. Hogel, 30 111. 119; Bush v. Huston, 75 111. 344; Ball v. Palmer, 81 111.. 370; Sontag v. Bigelow, 142 111. 144; Newell v. Woodruff, 30 Conn. 497; Roberts v. Morgan, 30 Yt. 323; Proprs. Eennebeck Purchase v. Springer, 4 Mass. Rep. 416; Small v. Proctor, 15 Mass. Rep. 495; Bates v. Nor-cross, 14 Pickering 227.</p> <p>Where there are two confirmations of imperfect titles, the earlier confirmation takes the land regardless of the respective dates of the original title. Willot v. Sanford, 19 How. 79; LesBois v. Brammell, 4 How. 464; Henshaw v. Bissau, 18 Wall. 255; Miller v. Dale, 92 H. S. 474; Trenier v. Stewart, 101 H. S. 797; Adam v. Norris, 103 H. S. 591; H. S. y. McMasters, 4 Wal. 680; H. S. v. Hal-let, 1 Wal. 439; H. S. v. Hancock, 133 H. S. 193; H S. v. Eossatt, 21 How. 449; Lafayette v. Kenton, 18 How. .199; Tameling v. H. S. F. Co., 93 H. S. 644; Comstock v. Crawford, 3 Wal. 396; Avegno v. Schmidt, 113 H. S. 293; Yanfleet on Collateral Attack, secs. 568, 570; H. S. v. Chaves, 175 H. S. 509.</p> <p>Findings of fact were sufficiently specific. C. L. 1897, see. 2999; C. L. 1884, sec. 2060.</p> <p>In the absence of a request for a specific finding of a particular fact no objection can be taken to a finding of ultimate facts which embrace the whole issue. Miller y. Stein, 84 Cal. 127; Prince y. Lynch, 38 Cal. 536; Tewksbury y. Magrifii, 33 Cal. 237; Miller y. Steen, 30 Cal. 402; Hidden y. Jordan, 28 Cal. 305; Wunderlee v. Cadogan, 75 Cal. 286; Edgar y. Strum, 71 Cal. 286; Kahn v. Smelting Co., 2 Utah 382; Bradbury y, Bedbury, 31 Minn. 163; Noland v. Bull, 24 Ore. 479; Ealrin v. Mc-Grath, 2 Wash. Ter. 113; Monroe Co. y. Frenchtown,, 98 Mich. 436; Williams y. Lumber Co., 45 Wis. 255; Kellogg v. Bessantz, 51 Kas. 418; Typer v. Sooy, 19 Kas. 596; People y. Littlejohn, 11 Mich. 61; Searcy Co. y. Thompson, 66 Fed. Eep. 96; Huklin v. McCleor, 18 Or. 138; Chatham Co. y. Furnace, 147- Mass. 406; Williams v. Lumber Co., 72 Wis. 487; Wetzler y. Duffy, 78 Wis. 174; Bainter y. Fults, 15 Kas. 330; Green y. Williams, 21 Kas. 64; Wrigglesworth y. Wrigglesworth, 45 Wis. 255; Parham y. Gibbs,, 84 Tenn. 296; Moore v. Barnett, 17 Ind. 349; Miller y. Linly,.l Ind. App. 6; Stemph y. Miller, 142 Ind. 142; People y. Littlegon, 11 Mich. 60; Bank of Fort Worth y. Stout, 61 Tex. 567; Hartlep et al y. Cole, 120 Ind. 247; Brundjagfe y. Dfesdhler, 131 Ind. 174; Hamilton v. Armstrong, 20 S. W. 1054.</p> <p>Plea of the statutes of limitation was unnecessary and surplusage. C. L. 1897, sec. 3165; Hogan v. Kuntz, 94 U. S. 775; Eeynolds y. Cook, 83 Va. 817; Sheldon v. ManVlick, 106 111. 45; Stubblefield y. Borders, 92 111. 387; Meiskoph y. Dibble,, 18 Fla. 24; Horne y. Carter, 20 Fla. 45; Barco y. Fennell, 24 Fla. 380; Miller y. Beck, 68 Mich. 78; Holmes y. Kring, 93 Mo. 455; Fairbanks y. Long, 91 Mo. 631; Stocker y. Green, 94 Mo. 280; Bird y. Sellers, 113 Mo. 588; Kyser y. Cannon, 29 Ohio St. 361; Ehodes y. Gunn, 35 Ohio St. 391.</p> <p>Pleadings and what they should contain., Phillips on Court Pleadings, secs. 11, 184, 185; C. L. 1897, secs. 2685, sub-see. 32, 107, sec. 3164; 1 Chitty’s PL, 15 ed. 313; Cotton Oil Co. y. Shamblin, 101 Tenn. 263; Burnliam v. Boss, 47 Me. 459; Kilpatrick Dry G. Co. v. Pax, 13 Utah, 597; Smith v. Cottrell, 8 Bax., Tenn. 63; 22 Á. & E. Enc. 837.</p> <p>A finding of probative facts from which there can be but one conclusion as to the. ultimate fact is good. Morris v. Jackson, 9 Wall. 127; 8 P. & P. 941, note 1; Van Biper v. Baker, 44 la. 450; McEwan v. Johnson, 7 Cal. 258; Breeze v. Doyle, 19 Cal. 105; Osment v. McElrath, 68 Cal. 466; Moore v. C. L. W. Works, 68 Cal. 146; Mach v. Works, 76 Cal. 305; Padden v. Goldbaum, 37 Pac. 759; McEadden v. Friendly, 9 Or. 224; Dougherty v. Ward, 89 Cal. 81; Knudson v. Curley, 30 Minn. 433; School District No. 73 v. Wraybeck, 31 Minn. 77; Cay-wood v. Farrell, 175 111. 481; Hamilton v. Spokane, 3 Idaho 167; Miller v. Smith, 7 Idaho 205; Downer v. Saxton, 17 Wis. 20; Trudo v. Anderson, 10 Mich. 357; Conlon v.. Grace, 36 Minn. 276; Farmers L. & T. Co. v. Bailway Co., 127 Ind. 250; People v. Hagar, 52 Cal. 171; Coveny v. Hale, 49 Cal. 552; Miller v. Luco, 80 Cal. 257; Carey v. Brown, 5S Cal. 180; Williams v. Hall, 79 Cal. 606; Myer v. School Die., 4 S. Dak. 427; Union C. S. M. Co. v. Taylor, 100 U. S. 342; Merchants Ins. Co. v. Allen, 121 U. S. 72; Smith v. Gale, 144 U. S. 525; Duncan v. The Francis Wright, 105 U. S. 387; McGuire v. Lamb, 2 Idaho 378; Wilkinson v. Bethel, 13 Idaho 746; Ybarra v. Sylvaney, 31 Pac. Bep. 1114, Cal; Daly v. Socorro, 80 Cal. 367; Ervin v. Brady, 48 Mo. 561; Trope v. Kurns, 20' Pac. Bep. 84; Dyer v. Brogan, 70 Cal. 136; Malone v. County of Del Norte, 77 Cal. 218; Boberts v. Haley, 65 Cal. 402; Courtney v. Fortune, 57 Cal. 617; Porter v. Woodward, 57 Cal. 535; Hawes v. Clark, 84 Cal. 272; Dolliyer v. Dolliver, 94 Cal. 642; Posachane Co. v. Standart, 97 Cal. 476; Malone v. Bosch, 104 Cal. 680; Tage v. Alberts, 2 Idaho, 249; Collins v. Dressner, 133 Ind. 290;. McCandliss v. Kelsey, 16 Kas. 557; Bradbury v. Bedbury, 31 Minn. 163.</p> <p>Admissibility of church records to prove genealogy or pedigree. C. L. 1897, secs. 2171, 3030; 4 Elizondo Praet. Univ. 243; Meyer on Vested Bights, sec. 380; Hickox v. Tillman, 38 Barb. 608; Fales v. Wadsworth. 23 Mo. 553; Sanders v. Greenstreet, 23 Kas. 425; Howard v. Moot, 64 N Y. 262; Hand v. Ballou, 2 Kern 541; Cooley Con. Lim., see. 367; Childers v. Cutter, 16 Mo. 45 Greenleaf Ev., sec. 115; Blackburn v. Crawfords, 3 Wall. 189.</p> <p>It must appear that plaintiff had perfect grant. 20 A. & E. Enc. 715; Dow v. Howland, 8 Cow. 284.</p> <p>A grant may be made by law as well as by patent pursuant to law. Tamerling v. Freehold Land & E. Co., 93 U. S. 663.</p> <p>All deeds must be construed by a consideration of all of their parts and so as to give effect to every part there-' of. Doren v. Gillum, 136 Ind. 140; Carson v. McCaslin, 60 Ind. 334; Edwards v. Beal, 75 Ind. 410; Prior v. Quakenbush, 29 Ind. 475; Wagner v. Wagner, 1 S. & E. 374; Henderson v. Mack, 82 Ky. 380; Collins, Adm. v. Lavelle, 44 Yt. 233; Flagg, Adm, v. Eames, 40 Yt. 16.</p> <p>Acts of ownership amounted to disseisin of any co-tenants. Fouke v. Bond, 41 N. J. L. 537; Prescott V. Nevers, 4 Mason 326; Bigelow v. Jones, 10 Pick. 161; Kittredge v. Lock Co., 17 Pick. 246; Parker v. Prop., 3 Met. 91; Marcey v. -Marcey, 6 Mete. 360; Jackson v. Brink, 5 How. 483; Clapp v. Bromagham, 9 Cov. 531; Bradstreet v. Huntington, 5 Pet. 402; 5 Burr. 2604; 1-Atk. 493; 2 Atk. 632; Doe v. Reid, 11 East. 51; Richards v. Williams, 70 Wheat. 60; Doe v. Prosser, Cowp. 217; Bradstreet v. Huntington, 6 Pet. 439; Pawlett v. Clark, Pet. 504; Williams v. Watkins, 3 Pet. 53; Thomas v. Pickering, 13 Me. 353; Alexander v. Kennedy, 19 Tex. 492; Law v. Patterson, 1 W. & S. Pa. 184; Crozier v. Andrews, 11 Tex. 170; Portis v. Hill, 3 Tex. 273; DeLeon v. McMurray, S. E. Rep. 1038; Pucket v. McDaniel, 28 S. E. Rep. 360; Mayes v. Manning, 73 Tex. 46; Church v. Waggoner, 78 Tex. 203; Long v. Stapp, 49 Mo. 508.</p> <p>Running of Statute of Limitation in favor of defendant was not interrupted. Ballard v. Hansen, 33 Neb. 861; Bell v. Denson, 56 Ala. 444; Rayner v. Lee, 21 Mich. 384; Stettnische v. Lamb, 18 Nev. 619; Hughes v. Pickering, 14 Pa. St. 297; Pludgins v. Crowe, 32 Ga. 367; Fugate v. Pierce, 49 Mo. 441; Crispen v. Hanavan, 50 Mo.. 536; DeLavega v. Butler, 47 Tex. 529; Harper v. Tapley, 35 Miss. 506; Haywood v. Thomas, '17 Nev. 238; Valley Co. v. Coppinger, 32 S. W. 442; Foundry Co. v. Cole, 130 Mo. 1; Pemberton v. King, 2 Nev. 276; Holmes v. Tremper, 20 John. 29; Railroad v. Kent & Co., 30 Md. 347.</p> <p>The burden to show such occupation as to defeat statute of limitation is on plaintiff. 1 A. & E. Ene. 870; Sdg. & Waite Tr. Tit. to L., sec. 753; Hubbard v. Barry, 21 Cal. 221; Whitford v. Drexel, 118 111. 600; Schulz v. Arnot, 33 Mo. 172; Jackson v. Yermilyea, 6 Cow. 677; Shumway v. Phillips, 22 Pa. St. 151; Ralph-v. Bayley, 11 Yt. 521; Tapscott v. Cobbs, 11 Grat. 172; Goewey v. Urig’, 18 111. 238; E. St. L. Co. v. Nugent, 147 111.‘254; Williams v. McAliley, Cheves, S. C. 200; Owen v. Goode, 3 Storb. S. C. 474; Davis v. White, 27 Yt. 751; Hodges v. Eddy, 38 Yt. 327; Hunt v. Wickliffe, 2 Pet. 212; Green v. Liter, 8 Or. 229; McClain v. Smith, 106 N. C. 172; Green v. Harman, 4 Dev. N. C. 158; Hunnicut v. Peyton, 102 H. S. 333; Cline v. Catron, 22 Grat. 378; Turpin •y. Saunders, 32 Gratt. 27; Messer v. Reginnitter, 32 la. 312; Rayner v. Lee, 20 Mich. 386; Cowles v. Hall, 90 N. C. 333; Elder v. McCloskey, 37 H. S. C. C. App. 37;' New. on Eject., sec. 49; Duren v. Sinclair, 37 S. C. 366; Bell v. Dennison, 56 Ala. 444; Whalley v. Small, 29 la 290; ‘Both v. Small, 25 la. 178; Society v. Pawlet, 4 Pet. 510; Howerson v. Griffin, 5 Pet. 157; Harvey v. Tyler, 2 Wall. 349; Byers v. Dauley, 27 Ark. 93; Ewing v. Burnett, 11 Pet. 52; Taggart v- Stanberry, 2 McL. 543; Thompson v. Felton, 54 Cal. 551; Pease v. Lawson, 33 Mo. 42; Ang. on Lim. 400; Kirk v. Smith, 9 Wheat. 288; Jackson v. Porter, 1 Paine, C. C. R. 457; Burnside v. Hune, 78 Ala. 138; Kincheloe v. Tracewells, 11 Grat. 588; Little v.- Downing, 37 N. H. 367; Jackson v. Demont, 9 John. 55; Bradstreet v. Huntington, 5 Pet. 435; Dearmond v. Broking, 37 Ga. 5; Child v. Conley, 39 Ky., 9 Dana 385; Ring v. Gray, 6 B. Mon. 368; Swager v. Crutchfie]d, 9 Bush. 411; Jackson v. Yrendenburg, 1 John. 159; Williams v. Jackson, 5 John. 489; Yan Yorhis v.' Kelley, 65 How. Prae. 300; Nason v. Blaisdell, 17 Yt. 316; McMahan v. Bowe, 114 Mass. 140 S. C. Am. B. 321; Den v. Geiger, 9 N J. L. 235; Livingston v. Proseus, 2 Hill 536; Poor v. Horton, 15 Barb. 485; Howard v. Howard, 17 Barb. 663; Hamilton v. Wright, 37 N Y. 502; Brmley v. Whiting, 22 Mass., 5 Pick. 348; Tabb v. Baird, 3 Cal. 475; Phelps v. Sage, 2 Day 151; Michael y. Nutting, 1 Smith, Ind. 481; Stockton v. Williams, 1 Doug. 546; Yan Housen v. Benham, 15 Wend. 164; Ivenada v. Gardner, 3 Barb. 589; Hotchkiss v. B. B. Co., 36 Barb. 600; Wilson v. Nance, 30 Tenn., 11 Hump, 189; Key v. Snow, 90 Tenn. 603; Bood v. Willard, Brayt. 66; Edwards v. Boys,, 18 Yt. 473; University v. Josvln, 21 At. 52; Hotkins v. Ward, 6 Munf. 38; Early v. Garland, • 13 Grat. 1.</p> <p>STATEMENT OF THE CASE</p> <p>This is an action of ejectment brought to recover an undivided interest in the Mesita de Juana Lopez Grant. The complaint is in the form prescribed by statute, and, omitting the caption, is as follows: “Solomon Luna, a resident of the County of Yalencia in the Territory aforesaid, complains, of Cerrillos Coal Bailroad Company, a corporation, in a plea of ejectment: For that whereas, heretofore, to-wit, on the 15th day of January, 1898, at the County of Santa Fe, aforesaiid, plaintiff was entitled to the possession of that certain piece or parcel of land situated in the county of Santa Fe aforesaid and commonly known as, and called, the grant of the Mesita de Juana Lopez, being the same tract of land covered by private land claim No. 64, which was confirmed by an Act of Congress of the United States, approved January 28, 1879, which appears at page 592 of Yolume 20, Chapter 3, of U. S. Statutes at Large; and afterwards, to-wit, on the day and year aforesaid, at the county aforesaid, defendant entered into said premises and unlawfully withheld and thence hitherto has unlawfully withheld, and still does unlawfully withhold, from plaintiff possession thereof, to his damage in the sum of $25,000; wherefore plaintiff brings suit and prays judgment for recovery of the possession of said premises and for the sum of $25,000, his damages aforesaid and costs.” The defendant pleaded not guilty, traversed the allegations of the complaint, but admitted possession of a portion of the grant, alleging that it had had rightful possession of such portion for more than ten years prior to January 15, 1898. It also pleaded the statute of limitations as a defense in different ways. The plaintiff replied, traversing the new matter set up by the defendant:</p> <p>By agreement, the case was tried by the court without a jury, and the issues submitted were limited to the question of title raised by the pleadings,, and no evidence was taken of the value of improvements of the mesne profits. At the trial it was developed that the plaintiff claimed under purchases from descendants of Apolonia Romero and Patricio Romero, who the plaintiff undertook to prove were children of- Domingo Romero, one of the three to whom the grant Avas originally made in 1782. This the defendant denied. The defendant introduced evidence in support of its alleged right of possession of the Mesita de Juana Lopez Grant, and also through the Ortiz Mine Grant Avhich was in conflict with the first named grant, to the extent of between eleven thousand and twelve thous- and acres. It also introduced evidence ’in support of its defense under the statute of limitations.</p> <p>At the trial the plaintiff requested the court to give its decision in writing,, to be filed with the Clerk, ^d to “find the facts and give its conclusions of law pertinent to the case, in accordance with the requirements of Section 2999, C. L. 1897,” and the court thereupon gave its decision and made its findings in writing as follows: “The above entitled cause having been tried before the court without a jury, the same having been duly Avaived by the parties, and the testimony on behalf of each party having •been beard, after due consideration of said testimony and arguments by the court, the court being fully advised in the premises, finds, as the facts in said cause: “That said plaintiff, Solomon Luna, was not, on the 15th day of January, 1898, or at the time of the commencement of said action, to-Avit, on the 11th day of February, A. D. 1898, entitled to the possession of the property described in the said declaration or complaint, or any part thereof; that said defendant was at the time of the commencement of said action in possession of the said property; that said defendant did not, on the 15th day of January, A. D. 1898,, enter into the said premises and unlawfully withhold the same from the plaintiff, nor did said defendant at any time after said 15th day of January, A. D., 1898, unlawfully withhold the same from the said plaintiff, nor did the defendant at the time of the commencement of said action unlawfully withhold the possession of said premises from said plaintiff-in manner and form as alleged and charged against it in the declaration, or complaint, of said Solomon Luna, but that the said possession of said defendant of said property was lawful. As a conclusion of law the court finds: that plaintiff is not entitled to recover the possession of said property, or any part thereof, or any damages in said action, and that said defendant is not guilty of the said trespass or ejectment laid to its charge in manner and form as said Solomon Luna has complained against it.</p> <p>“It is, therefore, considered by the court that said plaintiff take nothing by reason of the matters and things alleged in his said declaration or complaint, and that said defendant, the Cerrillos Coal Eailroad Company, go hence without day and recover of said Solomon Luna its costs herein expended, to be taxed.” The plaintiff objected and excepted on various grounds; one that the findings were not such as the statute contemplates, and specified numerous instances of failure to find facts alleged to be material. These objections the court overruled and the plaintiff excepted. He then filed a motion to have the findings made set aside and for a new trial, for the reason, with others, that, “The court erred in overruling the plaintiff's objections, and each of them, to the said findings of fact.” The motion was denied, and the plaintiff duly excepted. All this was before judgment. Judgment was rendered on the findings made for the defendant, a bill of exceptions was allowed, and the case was brought 'to this court on a writ of error.</p>

<p>Appeal from the District Court for Bernalillo County, before Ira A. Abbott, Associate Justice.</p>

Abbott, Associate Justice. A contract not to engage in business is a personal contract and. can only bind the parties to it. Kramer v. Old, 56 Am. St. Rep. 650, 119 N. C. 11; Jones v. Havens, L. R. 4 Ch. Div. 636; Reeves v. Sprague, 114 N. C. 647; Fleckenstein Bros. v. Fleckenstein, 57 At. 1025; Bird v. Lake, 1 H. & M. 111.; Lumlev v. Gye, 2 El. & Bl. 216; Emmert v. Richardson, 24 Pac. 480, 44 Kas. 268.

Mills, Chief Justice. When the court has entered the final decree it has no further jurisdiction over the subject matter and cannot re-assume it. Barnett v. Barnett, 9 N. M. 205; Hickman v. City of Et. Scott, 141 H. S. 415; Dowell v. Applegate, 152 H. S. 327; Bronson v. Schulten, 104 H. S. 410; Philips v. Negley, 117 U. S. 665; ex parte Sibald v. H. S., 12 Peters 488; 3 Wheat. 591; 3 Peters 431; 12 Wheat. 10; Bank of IT.

Abbott, Associate Justice. Affirmed. The mere fact that one is in possession of the lands of another does not of itself,, establish a tenancy. The conventional relation of landlord and tenant is wanting. McAdam on Landlord and Tenant, vol. I, 3 ed., see. 42; Bancroft v. Wardwell, 13 Johns, N. Y. O. L. Bep. 439; Smith v. Stewart, 6 Johns, N. Y. O. L. Bep. 46; West v. Smith, 8 How., H. S. 412; Lloyd v. Hough, 1 How., H. S. 157; Croswell v. Crane, 7 Barb. Bep.

Abbott, Associate Justice. Where a witness is a party to an action he may be asked on his cross-examination as'to discrepancies between his testimony and sworn allegations in his pleadings. Hall v. C. R. I. & P. Ry. Co., 51 N W. 150; Stamper v. Griffin, 12 Ga. 450; East River Natl. Bit. v. Romertze, 49 N Y. 577; McCullough v. McCullough, 12 Ind. 487; Johnson v. Armstrong, 12 Southern 73; Dawson v. Callbway, 18 Ga. 573; King v. Atkins, 33 La.

Meciiem, Associate Justice. C. L. 1897 conferred ample authority on the city council to designate depositories of city funds and to… Held: not subject to check. The ordinance further provided, that the balances in all three banks should be kept as nearly equal as convenient, and required the treasurer to deposit and keep all city funds in his hands in the banks qualifying under this ordinance. 'Only one of the banks specified, namely, the State National Bank, qualified…

Meciiem, Associate Justice. The very wording of the indictment shows that no second offense was intended to be charged. 2 Bish. Crim. Proced., secs. 318, 319; Archibold’s Crim. PI. 275; C. L. 1897,, sec. 68; Comm. v. Pratt, 132 Mass. 247; Ilex. v. Johnson, 3 M. & S. 553'; Eex. v. McGregor, 3 B. & P. 106; Eex v. Crichton, Euss. and Ey. 62; State v. Adams, 108 Mo. 211; State v. Lanier, 89 N. C. 519.

Mechem, Associate Justice. The court should have fixed and determined the manner and method of the crossing as required by the laws of New Mexico in case of disagreement between the railway companies concerned. C. L. 1897, secs. 3804-3925; 3847, sub-sec. 6; Central Pass. Ry. Co. v. Phil. etc. Ry. Co., 52 Atl. 752; People’s R. R. Co. v. Syracuse, 22 Abb.

Meci-iem, Associate Justice. The maimer and method of crossing tire railway company’s tracks, under the provisions of the statute, was a proper subject for the consideration and determination of the court. Central Pass. Ey. Co. v. Phila. Ey.

<p>Appeal from the District Court for Lincoln County, before M. C. Mechem, Associate Justice.</p> <p>See 15 N. M. 742.</p> <p>See 15 N. M. 742.</p>

William H. Pope, Chief Justice. An injunction will not issue to take property out of the possession of one party and put it in the possession of another.

Mechem, Associate Justice. C. L. 1897, sec. 2517, is not applicable. City had right to regulate hospitals of the kind in question but has no authority to abolish the same. C. L. 1897, sec 2402, sub-secs. 45, 48.

<p>Appeal from the District Court for Bernalillo' County, before Ira A. Abbott, Associate Justice.</p> <p>Appeal was seasonably taken and court had jurisdiction. Brocket! v. Brockett, 2 Howard 241; Pearce v. Strickler, 9 N. M. 4G; Slaughter-House Cases, 10 Wall. 289; Texas & Pacific By. Co. v. Murphy, 111 U. S. 488; Aspen Mining Co. v. Billings, 150 U. S. 31; Yoorhoes v. Man. Co., 151 H. S. 135-; Southern Pacific B. B. Co. v. Holmes, 155 H. S. 137; Kingman v. Western Man. Co., 170 U. S. 675; Lockman v. Lang, 132 Fed. 1; Hurst va Hollingworts, 94 H. S. Ill; Plymouth Co. v. Amador, Co., 118 H. S. 264; Files v. Brown, 124 Fed. 132; Hooven v. Featherstone’s Sons, 111 Fed. 81; McFadden v. Mountain Yiew, 97 Fed. 670; Michels v. Olmstead, 157 H. S. 198; Newell v. Myendorf, 23 Pacific 335; Davis v. Wake-lee, 156 U. S. 691; Bigelow on Estoppel 601.</p> <p>No guardian ad litem was necessary. C. L. 1897, see. 1459; Laws 1901, p. 113; Hall’s Mexican Law, sec. 2013; Montoya v. Miller, 7 N. M. 289; IT. S. v. Bainbridge, 24 Fed. Case 946.</p> <p>Case could not be properly dismissed on the ground that appellant had not legal capacity to sue. C. L. 1897, secs. 1983, 900, 1981; Cohens v. Yirginia, 6 Wheaton 407; Nations v. Johnson, 24 Howard 205; Park v. Higbee, 24 Pac. 524; Damouth v. Klock, 29 Midi. 289; 22 Cyc. 562; Johns v. Smith, 56 Miss. 727; Seaton v. Tohill, 53 Pac. 170; Lloyd v. Kirkwood, 112 111. 338; Balston v. Lahoe, 8 Iowa 17; Claxton v. Claxton, 56 Mich. 557; Drago v. Moso, 40 Am. Dec. 592; Hoskins v. White, 32 Pac. 163; Schemerhorn v. Jenkins, 7 Johns 373; Young v. Young, 3 N. H. 345; Blood v. Harrington, 8 Pick. 552; Billups v. Freeman, 52 Pac. 367; Kemp v. Cook, 18 Md. 130; Park v. Higbee, 24 Pac. 524; Teller v. Wetherell, 6 Mich. 45; Pickett v. Legerwood, 7 Pet. 144.</p> <p>Guardian ad litem was necessary to conduct ease for contestant. C. L. 1897, secs. 929, 1465, 1981, 1985, 2685, sub-secs. 8, 9; In re Gourand, 95 N. Y. 256; Hoyt v. Hoyt, 112 N. Y. 511; Bouvier’s Law Dictionary; 15 P. & P. 467; Montoya v. Miller, 7 N. M. 289.</p> <p>Court did not err in dismissing appeal. C. & C. Bridge Co. v. Brennan, 16 Ely. L. 126; Haines v. Oatman, ' 2 Doug. 430, Mich.; Kleran v. Clouser, 5 Blackf. 604; Lumpkins v. Justice, 1 Ind. 557; Wolford v. Oakley, 43 How. Pr. 118, N. Y.; Fitch v. Fitch, 18 Wend. 513; Sutton v. Nichols, 20 Kas. 43; Blood v. Harrington, 8 Pick. 552; Sparkling v. Mack, 86 111. 125; 12 P. & P. 519.</p>

Pope, Chief Justice. The contractor being the statutory agent of the owner and purchasing and using the materials in the construction of the improvement implies that the work is being done at the request of the owner. C. L. 1897, sec. 2218; Pilz v. Killingsworth, 26 Pac. 305; Hill’s Code, sec. 3676; Smith v. Wilcox, 74 Pae. 708; 27 Cyc. 90. The right to bind the land for materials furnished to be used in making improvements upon the street is not extended to the agent.

Parker, Associate Justice. Judgments and decrees are conclusive evidence only as between parties and privies to the litigation. 2 Black on Judgments, sec. 534; Wabash R. R. Co. v. Adelbert College, 28 S. C. R. 182; Wabash, St. L. & P. R. Co. v. Ham, 114 U. S.-587; Compton v. Jessup, 15 C. C. A. 397. STATEMENT OP TH'E CASE.

Abbott, Associate Justice. Where an offense is created by statute, it must be charged in the indictment in the language of the statute, or language of equivalent import. Humphreys v. State, 17 Fla. 381; State v. Stiles, 5 La.

Abbott, Associate Justice. The congressional oonstruetion of the President’s power of removal under the constitution is not applicable to the governor’s powers in that regard under the Organic Act. Constitution, Article 3, sec. 2; Organic Act; Blake v. TT. S., 103 II. S. 227; McAllister v. U. S., 141 II. S. 174; Parsons v. U. S., 167 TJ. S. 324; Territory v. Armijo, 14 N. M. 205; Territory v. Ashenfelter, 4 N..

<p>SYLLABUS (BY THE COURT).</p> <p>1. A question which calls for an expression of the opinion of the witness as to the “guilt” of a person involved in an alleged breach of the peace was properly excluded.</p> <p>2. A question whether, at a certain juncture, the defendant “had his pistol drawn on” the man who was killed, does not call for an opinion of the witness which is open to objection.</p> <p>3. The evidence reported would not have warranted an instruction to the jury that a verdict could properly be rendered finding the defendant guilty of manslaughter.</p>

<p>Appeal from tbe District Court for Bernalillo County, before Ira. A. Abbott, Justice.</p> <p>Statements made before title accrued in the declarant will not be receivable. Lockhart v. Leeds, 10 N. M. 568, ’195 D. S. 427; Phillips v. Laughlin, 58 Atl. Rep. 65, Me.; Fall v. Fall, 60 Atl. Rep. 718; 2 Wharton on Evidence, secs. 1156-1170, 1190, 1206; 2 Wigmore on Evidence, secs. 1081, 1082; 1 Greenleaf on Evidence, sec. 180; Taylor v. Mather, 9 Gray 185; Noyes v. Morrill, 108 Mass. 399; Stockwell v. Blarney, 129 Mass. 396; Hutchins v. Hut-chins, 98 N. Y. 64; Dan v. Brown, 4 Cowen 483; 63 Pa. St. 63; Cuyler v. McCarthy, 40 N. Y. 228; Shailer y. Bnmstead, 99 Mass. 128; Lincoln y. Claflin, 7 Wall. 138; Belk v. Meagher, 104 H. S. 283; Lockhart v. Johnson, 181 H. S. 526; Lockhart v. Wills, 9 N. M. 355 .</p> <p>The existence of a constructive trust as of a resulting one must be proved by clear, unequivocal evidence. 3 Pomeroy’s Eq. Jur., sec. 1049, note 4 cl.; Lalone v. O’. S., 164 H. S. 255; Babitt v. Dotten, 14 Fed, 19; Bice v. Ridgley, 7 Idaho 115; Conard v. Nicoll, 4 Peters 296; Thompson v. Sprague, 14 Pac. 182; North Noonday Min. Co. v. Orient Min. Co., 1 Eed. 522; H. S. v. Arredondo, 6 Peters 716; Clark v. White, 12 Peters 196 ; 3 Roses Notes to Sup. Ct. Rep. 722; 9 Ene. P. & P.686; Lockhart v. Leeds, 195 H. S. 434; Story on Equity Pleadings, sec. 257; Pelkam v. Eddinger, 15 Eed. Rep. 262;' Dillon v. Bernard, 21 Wall. 430; H. S. v. Ames, 99 U. S. 35; Pullman Palace Car Co. v. Missouri Pac. Ry. Co., 115 H. S. 587; Eord v. Peering, 1 Yes. Jun. 72; Fogg v. Blair, 139 H. S. 127; Yan Well v. Winston, 115 H. S. 237; Brooks v. Ohara, 8 EecL 532; Phelps v. Elliott, 35 Fed. 453; LaFayette Co. v. Neely, 21 Fed. 744; Lockhart v. Leeds, 10 N.- M. .598; 1 Daniels Chan. PL and Pr. 327; Montesquieu v. Sandys, 18 Yes. 302; Jackson v. Ashton, 11 Peters 229; Crockett v. Lee, 7 Wheat. 525; Jackson’s Assignees v. Outright, 5 Munf. 314; Wren v. Moncure, 95 Ya. 375; Tripp v. Yincent, 3 Barbours Ch. 614; Austin v. Ramsey, 3 Tenn. Oh. 121; Slaright v. Payne, 2 Tenn. Ch. 176.</p> <p>A mere cotenancy does not establish a partnership so as to establish a relation of trust and confidence. Bissell v. Foss, 114 H. S. 252; Tuck v. Downing, 76 111. 71; Cedar Can. Min. Co. v. Yarwood, 91 Am. St. Rep. 841; Bucher v. Mulverhill, 1 Mont. 305; Murky v. Ennis, 2 Colo. 300; Ohactburn v. Davis, 9 Colo. 581; Pomeroy’s Const., sec. 290; H}mr y. Richmond Traction Co., 168 H. S. 484.</p> <p>A grub-stake contract does not constitute s, partnership between the parties. Prince v. Lamb, 128 Cal. 120; Cisna v. Mallory, 84 Fed. 851; Cooley on. Partn., sec. 135; Craw v. Wilson, 22 Nev. 385; 2 Lindley on Mines, sec. 858; Johnstone v. Robinson, 16 Fed. 903.</p> <p>Inference of abandonment. Creamery Pck. Mfg. Co. v. Sharpies Co., 71 S. W. 1068; 2 Parsons on Contracts, 9 ed. 832; Davis v. Butler, 6 Cal. 510; St. John v. Kid, 26 Cal. 272; McKay v. McDougal, 87 Am. St. Rep. 395; Strang v. Ryan, 48 Cal. 33; Bissell v. Foss, 144 U. S. 252; Cedar Min. Co. v. Yarwood, 91 Am. St. Rep. 841; •Saunders v. Mackay, 6 Pac. 3'61; Doherty v. Morris, 11 'Colo. 12; Hunt v. Patchin, 36 Fed. 816; Davis v. Butler, '6 Cal. 510; Derry v. Ross, 5 Colo., 295; Ferris v. Coover, 10 Cal. 631; Mallett v. Uncle Sam Co., 1 Nev. 188; Dupuy. v. Williams, 5 Mor. Min. Rep. 251; Rev. Stat., sec. 2324; 2 Lindley 1153, sec. 5; Belk v. Meagher, 104 U. S. 282; McGinnis v. Egbert, 8 Colo. 41; North Noonday Min. Co. v. Orient Min. Co., 6 Saw. 313; Jupiter M. Co. v. Bodie M. Co., 7 Saw. 114; Faxon v. Barnard, 2 McCrary 44; Zollars v. Evans, 2 McCrary 39; 6 Saw. 309; English v. Johnson, 17 Cal. 107; Table Mountain Co. v. Stranahan, 20 Cal. 209; 31 Cal. .390; Hess v. Winder, 30 Cal. 355; Rogers v. Cooney, 7 Nev. 219; Cambell v. Rankin, 99 U. S. 262; Trenonth v. San Francisco, 100 U. S. 251; Atherton v. Flower, 96 U. S. 513; Jupiter Min. Co. v. Bodie Co., 11 Fed. 66; Lockhart v. Johnson, 181 U. S. 527; 1 Lindley on Mines, secs. 217, 337, 345, 379; 2 Lindley on Mines, secs. 405, 651; Warnack v. DeWitt, 11 Utah, 324; Thompson v. Spra}', 14 Pac. 181.</p> <p>Contract in Equity not enforceable in equity. Cisna v. Mallory, 19 Mor. Min. Rep. 227; Prince v. Lamb, 128 Cal. 120; Rice v. Rigley, 7 Idaho 15; 4 Pom. Eq. Jur., 3 ed., sec. 1405; 6 Pomeroy’s Eq. Jur., secs. 763, 764, 767, 774; Marbel Co. v. Ripley, 10 Wall. 359; Rusk v. Conard, 47 Mich. 449; 3- Pom. Éq. Jur., sec. 1293;. 1 Pom. Eq. Jnr., sec. 370.</p> <p>Invalid because of prior location. 1 Jones on Ev., sec. 217; Burton v. Driggs, 20 Wall. 134; 1 Lindley on Mines, sec. 336; Book et al v. Justice Mining Co., 58 Fed. 106; U. S. Stat., sec. 2320; C. L. 1897, sec. 2298; Jupiter Mg. Co. v. Bodie C. Mg. Co:, 'll Fed. 675; Eureka Cons. Mg. Co. v. Richmond Mg. Co., 4 Sawy. 302; U. S. Mg. Co. v. Cheesman, 116 IJ. S. 536; Hyman v. Wheeler, 29 Fed. 347; Burke v. McDonald, 29 Pac. 98; Belk v. Meagher, 104 H. S. 284; Erhardt v. Boaro, 113 H. S. 527; Crossman v. Pendery, 8 Fed. 693.</p> <p>When one party introduces and reads from such a record that which suits his purpose, the other party may read for his own benefit all that relates to that subject, or require the party introducing the record to do so. Tappan v. Beardsley, 10 Wall. 435.</p> <p>Admissions in- pleadings-. 1 Jones on Evidence, sec. 276; Lockhart v. Wills, 9 N. M. 360; Belk v. Meagher, 104 D. S. 284.</p> <p>Affirmative relief. 1 Jones on Ev., sec. 276; Belk v. Meagher, 104 H. S. 284; Wills v. Blain, 5 N. M. 238; 2 Lindley 1153.</p> <p>The findings must be within the issues made by the pleadings. 8 Ene. P. & P. 944; Male v. Schaut, 69 Pac. 137; Comanche v. School Dist., 65 Pac. 301; Newby v. Myers-, 24 Pac. 971; Johnson v. Hosford, 110 Ind. 572.</p> <p>Privileged communications. Chirac v. Reinelcer, 11 Wheat. 294; McClellan v. Longfellow, 32 Mo. 494; Bacon v. Frisbie, 80 N. Y. 394; Aiken v. Longfellow, 27 Mo. 252; Tate v. Tate, 75 Ya. 522; Betzhoover v. Blackstork, 3 Watts 20; Foster v. Hall, 12 Pick. 89.</p> <p>Findings do not support the decree. Odgen v. Moore, 95 Mich. 290; Story on Eq. PL, sec. 257; Pelkham v. Eddinger, 15 Fed. 262; 9 Ene. P. & P. 686; 1 Daniels Ch. Prac., sec. 327; Montesquieu v. Sandys, 18 Yes. 302; Crockett v. Lee, 7 Wheat. 525; Wren v. Moncure, 95 Ya. 375; The Distilled Spirits, 11 Wall. 356; Lincoln v. Claflin, 7 Wall. 138; Cuyler v. McCartney, 40 N. Y. 228; Bissell v. Foss, 114- H. S. 252; Tuck v. Downing, 76 111. 71; Freeman on Cotenancy and Partition, sec. 172; Ma-honey v. Yan Winkle, 21 Cal. 582'; Bank of Overton, v. Thompson, 118 Fed. 801; Bank v. Blake,'C. C., 60 Fed. ■78; Thompson Houston Electric Co. v. Capitol Electric Co., 132 C. C. A. 643; Bank v. Foote, 12 Utah, 157; Suit v. Woodhall, 113 Mass. 391; Startwell v. North, 144 Mass. 188; National Security Bank'v. Cushman, 121 Mass. 490; Kennedy v. Green, 3 Myl. & K. 699; Espin v. Pemberton, 3 Deg. & J. 547; Eolland v. Hart, L. E. 6, Ch. 678; Be European Bank, L. E. 5, Ch. 358; Cave v. Cave, L. E. 15 Ch.. Div. 639; Kittlewell v.. Watson, L. E. 21 Ch. Div. 685; Inneraity v. Merchants Nat. Bank, 139 Mass. 332; Dillaway v. Butler, 135 Mass. 479 ;■ Atlantic Cotton Mills v. Indian Orchard Mills, 147 .Mass. 268; Howe v. Newmareh, 12 Allen 49; Allen v. South P>oston E. Co., 150 Mass. 206; Henry v. Allen, 151 N. Y. 1; Weisser v. Dennison, 10 N. Y. 68; Doe v. Ingersoll, 11 Smedes & M. 249; Eussell v. Sweezy, 22 Mich. 235; Smith v. Dunston, 42 Iowa 48; Goodwin v. Dean, 50 Conn. 517; Pringle v. Dunn, 37 Wis. 449; Wittenbroek v. Parker, Cal., 24 L. E. A. 197; Lakin v. Sierra Buttes Gold Min. Co., 25 Fed. 337; Wilson v. Wall, 6 Wall. 83; Stanley v. Schwalby, 163 IJ. S. 276; 1 Lindley on Mines, sec. 233; Belk v. Meagher, 104 IJ. S. 283; Jones v. Yan.Doren, 130 IJ. S. 691; Halleck v. Collins, 10 How. 174; Plumb v. Fluitt, 2 Anst. 432; Ely v. Wilcox, 20 Wis. 523; Patten v. Moore, 32 N. H. 382; Ballington v. Welsh, 5 Bin. 129; Butler v. Stevens 26 Me. 484; Wright v. Wood, 23 Pa. St. 120; Boyce v. Williams, 48 111. 371;-Meehan v. Williams, 48 Pa. St. 238; Holmes v. Stout, 3' Green, Ch. 492; McMechan v. Griffing, 3 Pick. 149; Hardwick v. Thompson, 9 Ala. 409; Townsend v. Little, 109 U. S. 504; Cambridge Yal. Bank v. Delano, 48 N. Y. 326; Simmons Creek Coal Co. v. Doran, 142 IJ. S. 439; Lockhart v. Leeds, 195 H. S. 427.</p> <p>If there is any evidence at all supporting the findings of fact by the court below in a case tried without a juryj such finding must stand. ' Badaracco v. Badaracco, 10 N. M. 761; Ortiz v. Bank, 12 N. M. 519.</p> <p>Law of this case settled in U. S. Supreme Court. Lockhart v. Leeds, 195 H. S. 76.</p> <p>This knowledge and means of knowledge is just as effective to bind one who came into the combination or conspiracy during its continuance and helped to accomplish its purpose and shared in its proceeds as those who originally formed it. Lincoln v. Claflin, 7 Wall. 132; Commonwealth v. Rogers, 181 Mass; Lockhart v. Wills, 9 N M. 263; 344; 181 IJ. S. 516.</p> <p>A conjectural or imaginary existence of a vein or lode within their limits shall not be permitted. King v. Silversmith, etc., Min. Co., 152 IJ., S. 222; 1 Lindley on Mines, secs. 44, 336; Rev. Stat. IJ. S., sec. 44; Erhardt v. Boaro, 113 U. S. 527.</p> <p>Priority of discovery gives priority of right against naked location and possession without discovery. 1 Lindley on Mines, secs. 335, 339, 351, 353, 355, 379, 404; Crossman v. Pendery, .8 Eed. 693; Rev. Stat. IJ. S., sec.. 2324; Wills v. Blain, 5 N. M. 238; 2 Lindley on Mines, sec. 688.</p> <p>Work done on claims after statutory 90 days shall be deemed effective if done before the rights of others intervene. 1 Lindley on Mines, secs. 330, 390; Erhardt v. Boaro, 113 IJ. S. 527.</p> <p>Sufficiency of evidence and findings to prove conspiracy. Redding v. Wright, 51 N. W. 105; 8 Cyc. 676, note 57; Livermore v. Horshchill, 3 Pick. 33; Hardy v. Trick, 65 N. T. 89; Brison v. Brison, 27 Pac. 186, Cal.; Roberts v. Ball, 38 Pac. 949.</p> <p>Part of pleadings containing admissions, may be put in evidence; then opposite party may put in evidence other parts of same pleading, provided such parts qualify parts first put in evidence. 1 Wharton’s Evidence, sec. 832; 10 Wall. 435; 17 Cyc. 319, notes 56-58; Rouse v. Whited, 82 Am. Dec. 337¿ Granite Gold Mining Co. v. Maginnis, 50 Pac. 269; 16 Cyc. 968; 1 Jones on Evidence, secs. 274-276.</p> <p>Notice to, and knowledge of, one partner, is notice to, and knowledge of, the other partners. 17 A. & E. E., 1 ed„ 1080.</p> <p>Constructive knowledge of the principal, which is cased on his agent’s knowledge had while acting in the transaction for the principal, is a conclusive presumption of law, 2 Pomeroy’s Eq. Jur., secs. 669, 672; 3 Wigmore on Evidence. sec. 1763; 2 Wigmore on Evidence, secs. 1078. 1079, 1793'; 1 Jones on Evidence, secs. 255, 256; Lincoln v. Claflin, 7 Wall. 132-; The Distilled Spirits, 11 Wall. 356; McIntyre v. Pryor, 173 U. S. 52; Com. v. Rogers, 181 Mass. 184; Bispham’s Principles of Equity, sec. 268; 2 Pomeroy’s Eq. Jur., secs. 597, 606, 610, 614, 615, 665, 666, note 1, 667, 676; Jones v. Smith, 1 IJare 43; LeNeve v. LeNeve, 2 White & T. Lead Cas. 127; Brush v. Ware, 15 Pet. 93; Simmons Creek Coal Co. v. Doran, 141 H. S. 239; Wade on Notice, sec. 689; 1 Pom. Eq. Jur.,'secs. 431, 451; New Albany v. Burke, 11 Wall. 107; Fogg v. Tennessee Nat. Bank, 9 Heisk. 479; Holden v. N. Y. & E. Bk.,’ 72 N. Y. 286; Ames' v. N. Y., etc. Ins. Co., 14 N. Y. 253; Hart v. F. & M. Bk., 33 Vt. 252; Abel v. Howe, 43 Yt. 403; Dunbar v. Wilson, 32 111. 517; Hovey v. Blanchard, 13 N. H. 375; Porter v. Bank of Rutland, 19 Yt. 410; G. W. Ry. Co. v. Wheeler, 40 Mich. 419; May v. Boral, 12 Cal. 91; Hodgkins v. Montgomery Co. Ins. Co., 34 Barb. 213; Nudd v. Burrows, 91 N. S. 426; C. L. 1884, sec.' 1571; 1 Lindley on Mines, secs. 330, 380, 390, 404; Erhardt v. Boaro, 113 U. S. 527; 2 Lindley on Mines, secs. 642-645; 1 Pom. Eq. Jur., sec. 401; Lockhart v. Johnson, 181 U. S. 655; Lockhart v. Johnson, 54 Pac. 336; Wills v. Blain, 5 N. M. 238; Lockhart v. Leeds, 195 H. S. 76; Atlantic Cotton Mills v. Indian Orchard Mills, 17 N. E. 496, Mass.</p> <p>Sufficient evidence óf conspiracy. Commonwealth v. Rogers, 181 Mass. 184.</p>

<p>Writ of Error to the District Court for San Juan County, before John R. McFie, Associate Justice.</p> <p>Jurisdiction of territorial engineer. Laws 1907, chap. 49, secs. 4, 24, 27; Mills’ Irrigation Manual, sec. 39.</p> <p>Appropriation. Fort Morgan L. & C. v. South Platte, D. Co., 18 Colo. 1; Farmers Ind. Co. v. Agricultural D. Co., 45 Pae. 444; Cast v. Thornton, 3 Colo. App. 475; Offield v. Thornton, 3 Colo. App. 475; Offield v. Ish, 57 Pac. 809; Wiel on Water Eights, 1 ed., 161; Wheeler v. Northern Colo. Irr. Co., 11 Colo. 582; Laws 1907, chap. 49, sec. 2; Farmers High Line Canal and Eeservoir Co. v. Southworth, 13 Colo. Ill; White v. Farmers High Line Canal and Eeservoir Co., 43 Pac. 1028.</p> <p>Limitation of police power. Grossman v. Cominez, 79 N. Y. Sup. 900; Lawton v. Steele, 152 H. S. 133; Colon v. Lisle, GO Am. St. Eep. 609.</p> <p>Appropriation of water from inter-state streams, at point in another state than the one in which lands to be irrigated are located. Willey v. Decker, 11 Wyo. 496; Perkins County v. Graff, 114 Fed. 441; Mills .Irrigation Manual, secs. 42, 45. Constitution Colorado, Art. XVI, sec. 386; Lampeón et al v. Vailes, 27 Colo. 201; Eickey Land & Cattle Co. v. Miller & Lux, 152 Fed. 11; Howeil v. Johnson, 89 Fed. 556; Morris v. .Bean, 123 Fed. 618; Anderson v. Bassman, 140 Fed’. 14; Morris v. Bean, 146 Fed. 423; Bean v. Morris,, 159 Fed. 651; Taylor v. Huiett, 97 Pac. 37, Idaho; Eickey v. Land & Cattle Co., v. Miller & Lux, 81 C. C. A. 207.</p> <p>A water right is real property appurtenant to the lands to be irrigated thereby. Hull v. Blackman, 8 Idaho 272; Coventon v. Senfert, 23 Ore. 548; Frank v. Hicks, 4 Wyo. 502; Conant v. Deep Creek & C. Valley Irrigation Co., 23 Utah 627; Eickey Land & Cattle Co. v. Miller' & Lux, 152 Fed. 11; Carpenter v. Strange, 141 U. S. 87.</p> <p>Eights acquired by diversion and use of water governed and limited by statute. Laws 1907, sec. 1, page 73.</p> <p>Water flowing in ditches, canals, or other artificial conduits cannot be appropriated. Mills Irrigation Manual, secs. 26-38; Cardelli v. Comstock Tunnel Co., 26 Nev. 284.</p> <p>The place of appropriation is the point.of diversion. Wheeler v. Northern Colo. Irr. Co., 10 Colo. 582; Farmers High Line Canal C. & E. Co. v. Southworth, 13 Colo. Ill; Albuquerque L. & I. Co. v. Gutierrez, 10 N. M. 177; Slosser v. Salt Eiver Valley C. Co., 1 Ariz. 376; Gould v. Maricopa C. Co., 76 Pac. 598, Ariz.; Salt Eiver Val. C. Co. v. Nelssen, 85 Pac. 117, Ariz.; Mills Irrigation Manual, secs. 42, 118.</p> <p>Eunning water so long as it continues to flow in’ its natural course, cannot be subject to private ownership. .Dalton v. Bowker, 8 Nev. 190; Wheeler v. Northern Colo. Irr. Co., 10 Colo. 582.</p> <p>Water which the appropriator has taken from its' natural channel and confined in his diverting works may be personal property. Bear Lake and Eiver W. W. & I. Co. v. Ogden City, 38 Pac. 135; Wheeler v. Northern Colo. Irr.. Co., 1Ó Colo. 582.</p> <p>Statute under which territorial engineer acts. Laws 1907, p. 73, sees. 1, 2, 4, 24, 34, 42, 43, 46, 47, 48; Mills Irrigation Manual, secs. 63-67.</p> <p>Jurisdiction of board of water commissioners limited to the appropriation of water in the Territory of New Mexico. Laws 1907, chap. 49, .sec. 63; Lamson v. Vailes, 27 Colo. 201; Gen. Stat. 1883, Colo., secs. 1711, 1741, 1762, 1766, et seq.; Colo. Session Laws 1885, p. 259, sec. 26.</p>

Judgment rendered after notice to dismiss without notice of disposition of motion, and without allowing defendants to plead further, is void, and should have been set aside on motion. C. L. 1897, sec. 2685, sub-secs. 136, 137; Hungerford v. Cushing, 2 Wis. 305; Nevit v. Crow, 29 Pac. 749; Brady v. Lovell, 6 N. Y. S. 504; In re New York & Oswego Midland R. R. Co., etc., 40 How. Pr. 335; John Jay v. DeG-root, 28 How. Pr. 107.

McFiis, Associate Justice. All public grants made to individuals or private corporations are to be strictly and not liberally construed. Laws 1909, clr. 127, sec,s. 2, 11. The appropriation was a continuing one. Laws 1909, eh. 127, secs. 2, 11. STATEMENT OF FACTS. The relator in this cause is a private corporation, ■organized for benevolent and charitable purposes.

No briefs on motion to retax costs. Appeal from District Court (for McKinley County, before Iba A. Abbott, Associate Justice. Execution recalled, costs ordered retaxed and motion of appellee denied.

Abbott, No collateral attack can be made upon corporate existence of defendant railroad. Wigmore on Evidence, see. 2580. A right of way is not a mere easement or right to use but something approaching a fee in the land itself. New Mexico v. Trust Company, 172 TJ. S. 181.

<p>Appeal from the District Court for Bernalillo County, before Iba A. Abbott, Associate Justice.</p> <p>The appeal was seasonably taken. Brockett v. Brocket!, 2 Howard 241; Pearce v. Stickler, 9 N. M. 46; Slaughter House Cases, 10 Wall. 289; Texas & Pacific R. R. Co. v. Murphy, 111 17. S. 488; Aspen Mining Co. v. Billings, 150- TJ. S. 31; Yoorhees v. Manufacturing Co., 151 IT. S. 135; Southern Pacific R. R. Co. v. Holmes, 155 TJ. S. 137; Kingman, v. Western Manufacturing Co., 170 TJ. S. 675.</p> <p>Tlie law never requires, and courts ought never to-demand, the conduct of futile proceedings. Lockman v. Lang, 132 Fed. 1.</p> <p>The court had jurisdiction. Hurst v. Iiollingworth, 91 TJ. S. Ill; Plymouth Co. v. Amador Co., 118 TJ. S. 264; Files v. Brown, 124 Fed. 132; Hooven v. Feather-stone’s Sons, 111 Fed. 81; McFadden v. Mountain View, 97 Fed. 670; Michels v. Olmsted, 157 TJ. S. 198; Newell v. Mcyendorf, 23 Pac. 335; Davis v. Wakelee, 156 TJ. tí. 691; Bigelow on Estoppel 601.</p> <p>The guardianship over men and women shall cease with their marriage. C. L. 1897, sec. 1459; Laws of' 1901, sec. 5; Hall’s Mexican Law, .sec. 2013; Montoya v. Miller, 7 N. M. 289; H. S. v. Bainbridge, 24 Fed. Cases 946.</p> <p>The only courts in New Mexico which under the-statutes are invested with authority to invalidate a will are the district courts. C. L. 1897, secs. 900, 1981, 1983, J9‘86, 1987, 1988; Cohens v. Virginia, 6 Wheat. 407; Nations v. Johnson, 24 How. 205; Park v. ITigbee, 24 Pac. 524; Damouth v. Kloek, 29 Mich. 289; 22 Oyc. 562; Johns v. Smith, 56 Miss. 727; Seaton v. Tohill, 53 Pac. 170; Lloyd v. Ivirdwood, 112 111. 338; Kalston v. Lahee, 8 Iowa 17; Claxton v. Claxton, 56 Mich. 557; Drago v. Moso, 40 Am. Dec. ‘592; Hoskins v. White, 32 Pac. 163; Schcrmerhorn v. Jenkins, 7 Johns 373; Young v. Young, 3 N. II. 345; Blood v. Harrington, 8 Pickering 552.</p> <p>Writ of error coram vobis. Billups v. Freeman, 52-Pac. 367; Kemp v. Cook, 18 Maryland 130; Park v. Higbcc, 2-1: Pac. 524; Teller v. Wethcrell, 6 Mich. 45; Pickett v. Legerwood, 7 Pet. 144.</p> <p>The proceeding to revoke probate of will is a new, separate and distinct action from that of resisting the probate of a will. C. L. 1897, secs. 929, 1985; In reCourand, 95 N. Y. 256; Hoyt v. Hoyt, 112 N. Y. 511; Bouvier’s Law'Dictionary, “to sue”; 15 P. & P. 467.'</p> <p>Marriage did. not relieve minor from necessity of ]laving a guardian ad litem. Laws 1901, sec. 5; O. L. 1897, secs. 1459, 1461, 1981, 2685, sub-secs. 8 and 9; Montoya v. Miller, 7 N. M. 289.</p> <p>The failure to appoint guardian ad litem was ground for dismissal without plea. C. & C. Bridge Co. v. Brennan, 16 Ivy. L. 126; Haines v. O atinan, 2 Doug., Mich. 430; Iveran v. Clouser, 5 Blackf. 604; Lumpkins v. Justice, 1 Inch’557; Wolford v. Oakley, 43 How. Pr.. N. Y. 118; Fitch v. Fitch, 18 Wench 513; Hutton v. Nichols, 20 Ivas. 43; Blood v. Harrington, 8 Pick. 552; O. L.. 1897, sec. 929.</p> <p>Where a course suggested by one side is adopted by the other, it will not be permitted thereafter to claim the course suggested to be error. Sparkling v. Mack, 86 III. 125.</p>

Abbott, Associate Justice. The jury should not have been permitted to consider the evidence with reference to the damaged goods. DiPalma v. Weinman, 13 N. M. 226; 15 N M. 68. Actual damages must be actually proved and cannot be assumed as a legal inference. MeSherry Co. v. Dowagiac Co., 160 Fed. 94-8; Seymour v. McCormick, 16 Howard 480; Philip v. Nock, 17 Wall. 462; Railway Co. v. Mfg.

Appeal front the District Court for Eddy County, before W. H. Pope, Chief Justice. Sufficiency of complaint. Dame v. Cochiti E. & I. ■Co., 13 N. M. 10; 6 Ene. P. & P. 45, 117. Memorandum written on face of note made contract referred to therein integral part of plaintiffs cause. S. S. Salt Co. v. Barber, 49 Pac. 524, Kans.; 1 Daniel Neg. Instruments 194; Wilson v. Boots, 119 111. 379; Gardt v. Brown, 113 111. 475; 16 Ene. P. & P. 943; 14 Enc.

<p>SYLLABUS (BY THE COURT).</p> <p>1. A trial court cannot-in one case take judicial notice of its own records in another and different case, even -though between the same parties and in relation to the same subject matter.</p>

<p>Appeal from the District Court for Curry County, before William H. Pope, Chief Justice.</p> <p>Lien statement should have been verified by oath. Dorman v. Crozier, 14 Has. 224; City of Atchison v. Bartholomew, 4 Has. 124; Western Plumbing Co. v.-Fried, 81 Pac. 396, Mont.; Long v. Pocahontas Coal Co., 117 Ala. 587; Florence Bldg. Assn. v. Schall, 107 Ala. 531; Cook v. Home Brick Co., 98 Ala. 409; Globe Iron Co. v. Thaclier, 87 Ala. 458; Merchants’ Bank v. Hollis, 84 S. IV. 269, Texas; 27 Cyc. on Mechanic’s Liens 198; Arata v. Tellurium, etc. Co., 4 Pac. 195, Cal.; Parke & Lacy Co. v. Inter., etc Co., 82 Pac. 51, Cal.</p> <p>A defendant by answering over after his demurrer to the complaint has been overruled cannot afterwards assign the ruling of the court as error. Winn v. Dillard, 60 Ala. 369; Garlington v. Priest, 13 Fla. 559; Bobinson v. L’Engle, 13 Fla. 482; Platt v. Curtis, 89 111. App. 575; McDavis v. Ellis, 89 111. App. 182; Meredith v. Lackey, 16 Ind. 1; Griffin v. Wattles, 119 Mich. 346; Leggett v. City, 137 Mich. 247; Jefferson City Assn. v. Morrison, 48 lío. 273; Barkley v. B. C. A., 153 Mo. 300; Brady v. Donnelly, 1 N. Y. 226; Fudge v. Payne, 86 Ya. 303; Overland Dispatch Co. v. Wedeles, 1 N M. 531; Young v. Martin, 8 Wall. 357; Watkins v. H. S., 9 Wall. 762; Aurora City v. West, 7 Wall. 92; H. S. v. Bovd, 5 How. 29; Clearwater v. Meredith, 1 Wall. 42; Curran y. ICendall Boot & Shoe Co., 8 N M. 417; Campbell v. City of Haverhill, 155 II. S. 612; Campbell v. Wilcox, 10 Wall. 421; Bell v. Mobile & O. B. Co., 4 Wall. 598; Stanton v. Embrey, 93 H. S. 548.</p> <p>The motion for a new trial was improper, the appropriate motion would have been “in arrest of judgment.” 1 Spelling New Trial and Appellate Practice 12; Spanagel v. Dellinger, 38 Cal. 2738; 14 Ene. P. & P. 829, 831; Mayor v. Johnson, 84- Ga. 279; Wilbanks v. Ilntriner, 98 Ga. 801; Jacks v. Buell, 47 Cal. 162; Boger-v. Lace}*, 23 Ind. 507; Hendry v. Cartwright, 13 N. M. 384; Arrellano y. Chacon, 1 N. M. 269; 2 Ene. P. & P. 796, 799.</p> <p>Assignment of error too general. H. S. v. Bio Grande Dam & Irrigation Co., 10 N. M. 617; Eagle Mining Co. v. Hamilton, 14 N. M. 271; Hancock v. Beasley, 13 N. M. 239; Mogollon v. Stout, 14 N. M. 245.</p> <p>Verification was sufficient. C. L. 1897, sec. 2221; Ford v. Springer Land Assoc, et ah, 8 N. M. 37; 42 L. eel., TJ. S. 515; Fiane v. Hotel, etc. Co., 3 N. M. 411; Gilliam v. Garcl, 29 Ind. 292; Bank of British America v. Madison, 99 Cal. 129; Nofzinger Lumber Co. ct al. v. Solomon, 'et al., 110 Pac. 474, Cal.; Minor v. Marshall, 6 N. M. 194; 27 Cyc. 22; Jones y. Kruse, 138 Cal. C13; Seattle Coal Co. v. Thomas, 57 Cal. 197; Corbet v. Chambers, 109 Cal. 178; Garrison v. Board, 61 Cal. 54; Woods v, Vernum, 85 Cal. 640; Finley y. West, 51 Mo. App. 569; Laswell v. Presbyterian Church, etc., 46 Mo. 279; Crans y. Epwortli Hotel etc. Co., 121 Mo. App. 209; Revised 111. Sts. 1889, chap. 82, sec. 4; Grace v. Oakland Bldg. Assn., 166 111. 637; Chapman v. Brewer, 43 Neb. 890; Dorman y. Crozier, 14 Kas. 224; Globe, etc. v. Thatcher, 87 Ala. 458; Great Western Mfg. Co. v. Hunter, 15 Neb. 33; Phillips on Mechanic’s Liens, sec. 366; Election Cases, 65 Pa. 20; Grey v. Yorheis, 15 N. Y. Sup. Ct. 612; Conklin y. Wood, 3 E. D. Smith, 662; Child v. Bostwick, 12 Daly 15; Kealy v. Murray, 61 Hun. 619; Priest y. State, 6 N. W. 468, Neb.; 2 Bouvier’s Law Dictionary 248; Ilargoaine v. Van Horn, 72 Mo. 370; Kazartee v. Marks, 16 Pac. 407, Ore.; Hill’s Code, Ore., sec. 3673; Jones on Liens, sec. 1452; Virginia Code, 1887, sec. 2476; Taylor v. Netherwood, 91 Va. 88; 27 Cyc. 198; Turner v. St. John, 8 N. D. 245; Wheelock v. Hull, 124 la. 752; Jack-man v.- Gloucester, 143 Mass. 380; Dobson v. Thurman, 101 S. W. 310; 27 Cyc. 200.</p> <p>Attorney’s fee allowable in Supreme Court. C. L. 1897, sec. 2229.</p> <p>STATEMENT OP THE CASE.</p> <p>Appellees, plaintiffs in the court below, filed their bill of complaint to foreclose a subcontractor’s lien against the property of appellant. One B. L. Kitehel, the original contractor, was also a party defendant, but did not appeal. The complaint was in the usual form, setting out the claim of lien sought to be foreclosed in full. _Detendant Lj^ons, the appellant, demurred to the complaint cn the grounds that the same did not state facts sufficient to constitute a cause of action, in that the claim of lien therein set out was "void and unenforceable for not being legally and properly verified bjr a positive and unqualified oath as required by Jaw, but is verified onty upon informa.tion and belief.” The verification in question is as follows: “I, Louis J. Destree, one of the partners of firm of Howard & Destree, of lawful age, being first duly sworn, upon oath say that I do make this verification for the firm of Howard & Destree, the claimants herein named; that I have read the within statement of lien and abstract of indebtedness, and know the contents thereof, and that the same is true and correct, to the best of my knowledge, information, and belief.” This demurrer was overruled, to which appellant excepted. Later appellees answered by general denial, and the cause came on for hearing. Upon the cause being called for trial, appellant objected to the introduction of anjr testimonjr, for the same reasons set forth in the demurrer. This objection was overruled and appellant exceptbd. The cause proceeded withlout the appellant taking any further part therein. Decree was entered' in favor of appellees. The appellant thereupon filed a motion, which he denominates a “motion for a new trial,” wherein he renews his original objection, and prays that the “decision and judgment” of the court be vacated and set aside. This motion was overruled, to which action of the court appellant excepted. ■ Notice of appeal was given and appeal granted.</p>

<p>SYLLABUS.</p> <p>1. Justices of the_ Peace in the Territory of New Mexico must be considered as precinct and not county officers within the terms of the Enabling Act, sec. 5, Act of June • 20, 1910.</p>

R. Wrtgut, Associate Justice. Where a petition qf a certain number of rate-payers or residents is required to initiate proceedings for a public purpose, any person pigping the petition has the absolute right to withdraw his name at any time before the tribunal has finally acted. Dutton v. Hanover, 42 Ohio St. 215; Littcll v. Vermillion County, 198 111. 205; La Londe v. Barron County, 80 Wis. 380; People ex rel. Wm.

Abbott;, Associate Justice. Claim of title on account of adverse possession. C. L. 1897, secs. 2937, 2938; Laws 1899, chap. 63, sec. 2; Laws 1906, chap. 76, sec. 1. Possession in accordance with the legal title is presumed. Gonzales v. Boss, 120 XL S. 605; Chesapeake, etc. By. v. Washington, etc. By., 199 IT. S. 247; Evans v. Welch, 68 Pac. 79, Cal.; 1 Washburn Beal Property 63; Mining Co. v. Ta)dor, 100 IT.

Abbott, Associate Justice. A party to a contract who has opportunity to obtain knowledge tvith reference to representations and facts connected tvith the contract equal with that possessed by' the other party, cannot claim immunity from the obligations of the contract if he did not avail himself of his opportunity and acquire the knowledge of facts constituting fraud or concealment which he could have readily obtained had he sought to do so.

Parker, Associate Justice. The contract of suretyship is a contract whereby one person engages to be answerable for the debt, default or miscarriage of another. 27- Enc. 431; Smith v. Sheldon, 24 Am. Bep. 533; McGee v. Manhattan Life Insurance Co., 92 IJ. S. 93; Griswold v. Hazard, 141 TJ. S. 260; 1 Story Eq.

<p>Appeal from the First Judicial District, before John R. MoFie, Associate Justice.</p> <p>The venue should have been alleged in the complaint. Hill et al. v. Walker, 167 Fed. 245; 97 Fed. 817.</p> <p>Federal Liability Act of June 11, 1906, is unconstitutional. Howard v. Illinois Central Railroad Co., 207 TJ. S. 463, 51 L ed. 297; Illinois Central Railway Co. v. McICéndree, 203 U. S. 514; Hnited States v. Reese, 92 H. S. 214; Trade Mark Cases, 100 H. S. 82; Allen v. Louisiana, 103 H. S. 80; Hnited States v. Harris, 106 H. S. 629; Poindexter v. Greenhow, 114 H. S. 270; Spreigue v. Thompson, 118 H. S. 90; Baldwin v. Franks, 120 H. S. 678; Connolly v. Hnion Sewer Pipe Co., 184 H. S. 540; James v. Bowman, T90 H. S. 127; Hnited States v. Ju Toy,. 198 H. S. 253; A. T. & S. F. Railway Co. v. Mills, 108 S. W. 480; Hyde v. Southern Railway Co., 31 App. D. C. 460; Powell v. Wisconsin Central Railway Co., 159 Fed. 864; Howard, Admr. v. Illinois Central R. Co., et al., 207 H. S. 463.</p> <p>'Act of April 22, 1908, c. 149, 35 Stat. pt. 1, p. 65, is not retroactive. Winfree v. Northern Pacific Ry. Co., 164 Fed. 898; Plummer v. Northern Pacific Railwajr Co., C. C., 152 Fed. 206; Thornton on the Employers’ Liability and Safety Appliance Acts, sec. 109 b; Osborn v. Detroit, 32 Fed. 36; Eastman v. County of Clackamas, id. 24; Humboldt, etc., Co. v. Christopherson, 73 Fed. 239; Wright v. Southern Ry. Co., 80 Fed. 260; Plummer v. Northern Pac. Ry., 152 Fed. 206; Hall v. Chicago, etc., R. Co., 149 Fed. 564</p> <p>On motion for rehearing. R.' S. H. S., secs. 1874, 1910; Organic Act, sec. 10; C. L. 1897, sees. 880, 900, 1040, 901, 905, 2950.</p> <p>The federal and territorial sides of the district courts are separate and distinct. Schofield v. Stephens, 7 N. M. 619; R. S., secs. 1874, 1910; Robinson v. Peru Plow, etc. Co., 1 Okla. 140; Ex parte Crowdog, 109 H. S. 560; Gon Shay Ee, Petitioner, 130 H. S. 343; C. L. 1897, sec. 900; Hornhuckle v. Toombs, 18 Wall. 648; Clough v. Curtis, 131 H. S. 361, 33 L. ed. 945; Rev. Stat. Idaho, sec. 3830; McAllister v. H. S., 141 H. S. 174, 35 L. ed. 693; Good v. Martin.. 95 IT. S. 90; Reynolds v. H. S., 98 IT. S. 145; City of Panama, 101 H. S. 453; See also Thiede v. Htah Ter., 159 IT. S. 570; Simms v. Simms, 175 IT. S. 162; Ferris y. Higley, 87 IT. S. 375; Benner v. Porter, 9 How. 125; Nickels v. Griffin, 1 Wash. Ter. 374; Phelps v. City of Panama, 1 Wash. Ter. 518; Lincoln, Lucky & Lee Mining Co. v. District Court, 7 N. M. 486; Osborn y. U. S. Bank, 9 Wheat. 816; Metcalf v. City of Watertown, 128 IT. S. 586, 32 L. ed. 543; Morris v. Gilmer, 129 H. S. 315, 32 L. ed. 690.</p> <p>Injuries to persons and personal property are transitory not local. Mason y. Warner, 31 Mo. 508. It is only necessary to lay a venue for a place of trial in transitory action of trespass. McKenna v. Fiske, 1 Howard 237; Mitchell v. Harmony, 13 Howard H. S. 115-137; Regan v. Haines, 10 Ind. 348; Hill et al. v. Walker, 167 Fed. 245.</p> <p>The Federal Employer’s Liability Act of June 11, 1906, is valid as to the Territory of New Mexico. Howard v. Illinois Central Railroad Co., 207 IT. S. 504.</p> <p>Retrospective laws are constitutional. Oriental Bank v. Freeze, 18 Me. 109; Sutherland v. DeLeon, 1 Tex. 250; Wymes’ Lesser v. Wynne, 58 Am. Dec. 66; Rowls v. Kennedy, 58 Am. Dec. 299; Acheson v. Miller, 2 Ohio State 203; Sturges v. Carter, 114 IT. S. 519; Koshonong v. Burton, 104- IT. S. 668; Campbell v. Harehitt, 155 IT. S. 610, 615.</p> <p>There was no contributory negligence. C. L. 1897, secs. 3216, 3217; Thornton on Employer’s Liability and Safety Appliance Acts, p. 31.</p> <p>The facts are stated in the opinion.</p>

<p>SYLLABUS (BY THE COURT).</p> <p>1. Under the Federal Statutes' the rights of a transferee of national bank stock under an unrecorded, transfer, good at common law, are superior to the rights of a subsequent attaching creditor of the transferrer without notice.</p>

R. Wright, Associate Justice. Statutes authorizing the sale of property for non-payment of taxes must be construed strictly in favor of tire ■citizen. 36 Cyc. 1190; Laws 1899, chap. 22, sec. 25;-Parker v. Overman, 18 How. 137; C. L. 1897, secs. 4079, 4080, 4084, 4091; Cooley on Taxation,. 3 ed. 936; Games v. Stiles, 14 Pet. 322; Martin v. Bai’bour, 34 Fed.

C. Meci-iem, Associate Justice. Title to property purchased at tax sale entirely passed to the purchasers. C. L. 1897, secs. 2219, 1560, 1756, 2808. 2304, 4019; Laws 1899, chap. 22; Laws 1889, chap. 25; Laws 1891, chap. 94, sec. 7; 2 Lewi-s’ Sutherland Stat.

<p>Appeal from the District Court for Union County, before William Ii. Pope, Chief Justice.</p> <p>After the issues have been made up a party cannot amend his pleadings as a matter of right. Hoffman v. Rothenberger, 82 Ind. 474; Beall v. School, 1 A. K. Marsh 475, Ky ; 31 Cyc. 397; Century Digest, sec 655.</p> <p>Compliance with .statute must affirmatively appear. Goodwin v. Colorado Mortgage and Investment Co., 28 U. S. 47; C. L. 1897, secs.''445, 2553, 2554; Laws 1899, chap. 77, sec. 1; Laws 1901, chap. 77, secs. 1, .2. 3; Laws 1903, chap. 65, secs. 1, 2; Laws 1905, chap. 79. secs. 102-107.</p> <p>It is error to strike out an answer which constitutes a good defense and upon which defendant relies. 4 U. S. Digest 4525; IJosey v. Buchanan, 10 U. S. 941; 113 N Y. S. 997; 12 Current Law 1329; Manclelbaum v. Nevada, 19 U. S. 479; Silver Mining Co. v. Taylor, 25 TI. S. 541; Marine Ins. Co. v. Hodges, 3 U. S. 200.</p> <p>In an action by a foreign corporation the plaintiff has the burden of showing, not only the fact of incorporation, hut also the statute under which it was incorporated. 3 Encyclopedia of Evidence 595; Savage v. Russell & Co., 84 Ala. 103; Bank of Alabama v. Simonton, 2 Tex. 531; Gaines v. Bank of Mississippi, 12 Ark. 769; Law Guarantee and Tr. Soc. v. Hogue,, 37 Or. 544; Eagle Works v. Churchill, 2 Bosw. N. W. 166; State v. Iiabie, 18 R. I. 558, 30 Atl. 462; 10 Cyc. 235; 17 Cyc. 401; Taylor v. Riggs, 1 Pet. 591, 7 H. S. L. ed. 275; ¡De Lane y. Moore, 14 How. 253, 14 H. S. L. ed. 409; Eresh v. Gilson, 16 Pet. 327, 10 TJ. S. L. ed. 982; H. S. ¿Digest, pp. 2893 and-2894; 20 H. S. 867; Rogers v. Durant, 27 H. S. 303; Simpson v. Dali, 18 U. S. 265; Goodwin v. Colorado Mortgage and Investment Co., 28 H. S. 47; Dudley v. Collier, 87 Ala. 433; Earrior y. New England Mortgage Security Co., 88 Ala. 275; Christian y. American Freehold Land Mortgage Co., 89 Ala. 198; Hanchey v. Southern Home Blclg., etc. Assoc., 140 Ala. 245; Chattanooga Nat. Blclg. etc. Assoc, v. Denson, 189 H. S. 408; Cincinnati Mut. Health Co. v. Rosenthal, 55 111. 86.; Hoffman y. .Banks, 4-1 Ind. 1; Cassady y. American Insurance Co., 72 Ind. 95; State v. Briggs, 116 Ind. 55; G. Heilman Brewing Co. y. Peimeisl, 85 Minn. 121; Ehrharclt v. Robertson, 78 Mo. App. 404; Stewart v. Northampton M'ut. Live Stock Ins. Co., 38 N. J. L. 436; Wolf v. Lancaster, 70 N. J. L. 201; Pennington v. Townsend, 7 Wend (N. Y.) 276; Cary-Lombard Lumber Co. y. Thomas, 92 Tenn. 587; New York Nat. Blclg. Assoc, v. Cannon, 99 Tenn. 344; Ashland Lumber Co. y. Detroit Salt Co., 114 Wis. 6; Aetna Lrs. Co. v. Harvey, 11 Wis. 394; in re Comstock, Sawy., IT. S. 218; Cincinnati Mutual Health Assurance Co. v. Rosenthal, 55 111. 92; British Columbia Bank y. Page, 6 Or. 431; ITachnev v. Leary, 12 Or. 40.</p> <p>A party waives the objection to an amendment by pleading or by going to trial thereon, or by otherwise recognizing the amended pleadings. Brjmn v. Wilson, 27 Ala. 208; Redman y. Peterson, 41. Am. St. Rep. 204, Gal.; Baldwin Coal Co. v. Davis, 67 Pac. 1041; Jordan y. Indianapolis Water Co., 64- N. E. 680; Miller v. Cavanaugh, 35 S. W. 920; Gryman v. Liebke Harwood Mill Co., 85 S. W. 946; AA'illman v. ¿Alabama Brokerage Co., 40 So. 102; Daley v. Ilucldell, 70 Pac. 784; Mullin v. Mc-Ivim, 45 Pac. 416.</p> <p>The rulings or decisions which effect substantial rights, and on which error is predicated, will not be revised unless appropriate exception to the alleged error was reserved. Binford v. Dement, 72 Ala. 491; Caveny v. AVeiller, 90 111. 158; Beard v. Parks, 44 Mo. 244; Driscoll v. Downer, 26 N E. 757; Guthrie v. Fisher, 6 Pae. Ill; Bond v. Iialloway, 46 N. E. 358; Haines v. Porch, 36 N. E. 926; Petersborough Savings Bank v. Des Moines Savings Bank, 81 N. W. 786; Lott v. Kansas City, etc. R. Co., 21 Pac. 1070; Chapman v. Charleston, 13 Am. St. Rep. 681.</p> <p>What constitutes doing business on part of foreign corporation. Caesar v. Capell, 83 Fed. 403; Loan Co. v. Cannon, 96 Tenn. 599; Copper Mfg. Co. v. Ferguson, 113 U. S. 727; Midland Savings and Loan Co. v. Solomon, 79 Pac. 1077; Potter, 5 Hill'490; Graham v. Hendricks, 22 La. Ann. 523; Gates Iron Works v. Cohen, 43 Pac. 670; Insurance Co. v. Rogers, 47 Pac. 849; Hazelton v. Missouri etc. Ins. Co., 55 Fed. 749; Gilchrist v. Helene etc. Ry. Co., 41 Fed. 595; Florsheim Bros. Dry Goods Co. v. Lester, 46 Am. St. Rep. 163; Chase Elevator Co. v. Boston, 28 N. E. 302; Fuller etc. Mfg. Co. v. Foster, 30 N. AY. 169; Commercial Bank v. Sherman, 52 Am. St. Rep 812; Steinman v. Midland Savings & Loan Co. et ah, 96 Pac. 860; IT. S. Savings & Loan Co. v. Shain, et al., 77 N. AY. 1077, N. D.; Liverpool & G. W. Co. v. Phcenix Ins. Co., 129 H. S. 397; Trust Co. v. Burton, 43 N. AY. 141; Mill Co. v. Bartlett, 54 N. AY. 544, N. D.</p> <p>Damages. Laws 1907, chap. 57, sec. 39.</p>

<p>Appeal from the District Court for Lincoln County, before Edward R. Wright, Associate Justice.</p> <p>Laws 1909, Chapter 80, never was lawfully enacted. Field v. Clark, 143 IT. S. 671; State v. Howell, 26 Nev. 98; State v. Swift, 10 Nev. 183; Sherman v. Story, 30 Cal. 256; Pangborn v. Young, 32 N. J. L. 42; Speer v. Plank Road Co., 22 Pa. 377; A. T. & S- F. R. Co. v. Sowers, 213 TJ. S. 63.</p> <p>Laws 1909, Chapter 80, is special and local legislation. Springer Act; People v. Supervisors, 43 N. Y. 16; Matter v. Henneberger, 155 N. Y. 424; People v. O’Brien, 38 N. Y. 193; Ferguson v. Ross, 126 N.' Y. 464; Closson v. Trenton, 48 N. Y. 439; Com. v. Patten, 88 Pa. St. 260; Davis v. Clark, 106 Pa. St. 260; McCarthy v. Com., 110 Pa. St. 246; Montgomery v. Com., 91 Pa. St. 125; Devine v. Commissioners,’ 84 111. 591; State v. Herman, 75 Mo. 346; Scowdens App., 96 Pa. St. 424; Klokke v. Dodge, 103 111. 125; State v. Judges, 21 Ohio St. 11; Strange v. Dubuque, 62 Iowa 205; South on Stat. Const., secs. 127, 128, 129; Smith’s Com., secs. 595, 596; Sedg. Const. Law 32; Potters Dwarris on Stat. 355; ex-parte Westerfield, 55 Cal. 552; Desmond v. Dunn, 55 Cal. 251.</p> <p>No petition as required by Jaw asking for the removal of the county seat had boon presented and the board of county commissioners had no authority to order an election on the petition which was presented. C. L. 1897, see. 630; South on Stat. Cons., 2 ed., secs. 565, 572; Ball v. Lasting, 71 Ga. 678; St. Paul R. R. Co. v.. Phelps, 26 Fed. 569; Swan v. Jenkins, 82 Ala. 478; Tally v. Grider, 66 Ala. 122; Lanier v. Padgett, 18 Fla. 843; McKinney v. Commissioners, 26 Fla. 264; Zeiler v. Chapman, 54 Mo. 305; State y. Woodson, 67 Mo. 336; State v. Albin, 44 Mo. 349; People v. ICopplekom, 16 Mich. 342; Nef'zger v. Railway, 36 la. 644; State v. Piper, 17 Neb. 618.</p> <p>The election was void because there was no registration . of voters therefor. C. L. 1897, secs. 630, 709.</p> <p>It will be presumed that an act found among the published laws was constitutionally enacted. Kill. Central R. R. Co. v. Wren, 43 111. 77; Bedard v. Hall, 44 111. 91 • State v. Wray, 109 Mo. 594.</p> <p>Want of certificate not fatal. McDonald v. State, 80' Wis. 407; Cottrell v. State, 9 Neb. 125; Leavenworth County v. Higginbotham. 17 Kas. 74; Taylor v. Wilson, 17 Nek 88.</p> <p>Laws 1909, Chapter 80, not local nor special. People v. Squires, 107 N. Y. 593; 13 A. & E. Ene., 1 ed. 984; Chavez v. Luna, 5 N. M. 831; Lyoñ v. Wood, 5 N. M. 327; 153 IT. S. 649.</p> <p>No registration is required by C. L. 1897, sec. 1702, except before a genera] election. This section, enacted in 1889, clearly repeals, by implication, Section 1709, passed in 1869, as it covers the whole subject of the older statute and was intended as a substitute therefor. IT. S. v. Tynen, 11 Wall. 88; Bártlett v. King, 12 Mass. 545; Commonwealth v. Cooley, 27 Mass. 37; Tracy v. Tuffy, 134 IT. S. 206; IT. S. v. Barr, 4 Sawyer 254 ; Swan v. Buck, 30 Miss. 268; School List. v. Whitehead, 13 N. J. Eq. 290; Roche v. Jersey City, 11 Vroom 262.</p> <p>' Form of petition. Gray et ah v. Taylor, et ah, 15 N. M. 742; State v. Tracey, 48 Minn. 499; State ex rel. Gibbs v. Summer’s Point, 10 Ath Rep. 377, N. J.; People v. •North Chicago Ry. Co., 88 111. 537; Knowlton v. Shomo, 167 Mass. 424.</p>

<p>SYLLABUS (BY THE COURT).</p> <p>1. An acknowledgment oí a deed, or other writing, affecting real estate, by the party whose real estate is affected, in the manner established by statute, is a necessary prerequisite to its being recorded under Section 3953, C. L. 1897.</p> <p>2. An executory contract for the sale of real estate is, when duly executed and acknowledged, a writing entitled to record within the meaning of Section 3953, C. L. 1897.</p> <p>3. An acknowledgement of an assignment on the back of an executory contract for the sale of real estate "to which the assignment refers for particulars and purposes of description is not, under the circumstances given in the following statement of the case, an acknowledgment of the contract itself; and although the contract was copied into.the land records by the proper recording officer, that did not make it of record, and thereby constructive notice to a subsequent purchaser having no actual knowledge of it.</p>

<p>SYLLABUS (BY THE COURT).</p> <p>1. An order of a -District Court denying a motion for a change of venue, will not b-e reversed by this court unless the record shows an abuse of discretion, which, in this case, it does- not.</p> <p>2. The instructions to the jury by the trial court, on the right of self-defense, as affected by appearances from the defendant’s standpoint, were appropriate and sufficient when taken together.</p>

before William 1-T. Porjs, Chief Justice. Unless the terdict is specific in finding that the plaintiff has a right to the land by reason of an absolute compliance with the requirements of the law, it will operate lo reverse a judgment based thereon. Gwillin v. Donnellan, 115 U. S. GO; Burke v. McDonald, 33 Pac 49. Claim was not marked by four,substantial posts. Laws 1899, chap. 57, sec. 1; 2 Thompson on Trials, sec. 2295; Bates v. Hearte, 82 Am. St. Rep. 187. Bona fide entry.

Abbott, Associate Justice. Allegations of two counts of complaint are inconsistent. Build v. Bingham, 18 Barb. 4-96; Bigelow v. Gove, 7 Cal. 133; Bliss on Code Pleading, sec. 413; Shipman on Pleading 311. It was error to admit record of a power of attorney without preliminary proof required by statute. C. L. 1897, secs. 8965, 4010-4014; Kirchner v. Laughlin, 6 X. M. 300; Freeman on Judgments, secs. 415, 416; 4 Wigmore on Evidence, par. 3435; Dewitt v. Berry, 134 TJ.

<p>SYLLABUS.</p> <p>1. Each error relied upon must be separately assigned.</p> <p>2. A finding supported by a substantial preponderance of evidence will not be disturbed on appeal.</p> <p>3. The doctrine of absolute fraud arising in a mortgage on merchandise, from the mortgagors retaining possession with the power of disposal in the usual course of trade, is contrary to sound principles of jurisprudence.</p> <p>4. The failure to record mortgage promptly does not , constitute a fraud in law as to. subsequent creditors.</p>

Abbott, Associate Justice. The right of action for trespass to land is not assigned by subsequent conveyance of the land. Schuylkill & S. Co. v. Decker, 2 Watts. 343. Plaintiff’s possession being merely a right of temporary possession it could only recover for injuries to that possession and not for injury to'the freehold.

<p>Appeal from the District Court for Santa Fe County, before John R. MoFte, Associate Justice.</p> <p>Statute of Limitations. Laws 1899, chap. 63, sec. 2. A void or voidable deed may constitute color of title. Wright v. Mattison, 18 How. 280; IJ. S. v. Casterlin, 164 Fed. 437; Grain Co. v. Crabtree, 166 Fed. 738; Lee v. Copper Company, 21 Ilow. 206; Landes v. Bryant, 10 How.. 459; Elbcott v. Pearl, 9 How. 475; Hall .v. Law, 12 Otto 217; Schrimpsclier v. Stockton, 183 H. S. 205; 2 Ene. L. & P. 512-516; Pike v. Evans, 94 IJ. S. 41; McIntyre v. Thomson, 10 Fed. 531; Coal Co. v. Wiggins, 68 Fed". 446; Packard v. Moss, 68 Cal. 123; 74 Cal. 17; Kendrick v. Latham, 25 Fla. 820; Wade v. Garrett, ,109 Ga. 270; Fritz v. Joiner, 54 111. 101; Jackson v. Mag-ruder, 51 Mo. 55; Davis v. Burroughs, 8 N. Y. S. 379; LaFrombois v. Jackson, 18 Am. Dec. 463; Gonrdin v. Davis, 45 Am. Doc. 745; 2 Ene. L. & P. 59.</p> <p>Actual possession by pretender to title or holder of paper evidence thereof is not required, hut actual possession by his tenant or representative will suffice. Clift v. While, 12 N. Y. 5Í9; Walker v. McCusker, 71 Cal. 594; Lightbody v. Trcelson, 39 Minn. 310; Woolsey v. State, 17 S. W. 546; Webster’s Dictionary; Bouvier Law Dictionary; Dixon v. Ahern, 14 Pac. 598; Adams v. Gilchrist, 63 Mo. App. 639 ; Gregg v. Forsyth, 24 How. 179; Bell v. Coke Co., 155 Fed. 712; Scaife v. Land Co., 90 Fed. 238; Treece v. American Assoc., 122 Fed. 598; Murphy' v. Commonwealth, 187 Mass. 361; Heiiiemann v. Bennett, 144 Mo. 113; Hassett v. Ridgley, 49 111. 197; Holtzman v. Douglas, 168 U. S. 466; 2 Ene. L. & P. 379.</p> <p>The payment of taxes is sufficient evidence of good faith. 2 Ene. L. & P. 409; Gottlieb v. Thatcher, 51 Fed.' 373; Sexon v. Baker, 172 111. 365; Floyd v. Ricketson, 129 Ga. 676; Lee v. O’Quinn, 103 Ga. 355; Brady v. Walters, 55 Ga. 25; Stubblefield v. Borders, 92 111. 280; Foulke v. Bond, 41 N. J. L. 528; Severson v. Gramn, 124 .Towa 729; De Foresta v. Gast, 20 Colo. 307.</p> <p>Continuity is ah element of adverse possession. 2 Ene. L. & P. 439.</p> <p>A conveyance by a trustee to the cestui que trust merges the title and determines the trust. 2 Perry on Trusts, sec. 921; 28 A. & E. Enc. 933; 1 A. & E. Ene., 2 ed. 842; 1 Perry on Trusts, secs. 13, 14.</p> <p>A resulting trust may he established by parole. 2 Perry on Trusts, secs. 139, 143.</p> <p>Adverse possession by a tenant may be established by a disclaimer. Bergere v. Chaves, 14 N. M. 352; 2 Ene. L. & P. 468-471; Willison v. Watkins, 3 Pet. 598.</p> <p>Notice to the agent is notice to the principal. Mechem on Agency, sec. 718; 1 Perry on Trusts 321; 29 Cye. 1113.</p> <p>Character of possession necessary to show title. Laws 1899, chap. 63. sec. 2; 1 Cyc. 997; Thompson v. Pioche, 44 Cal. 508; Ward v. Cochran, 150 U. S. 608; Tiarvev v. Tyler, 2 Wall. 349; Sharon v. Tucker, 144 TJ. (S. 541; Kincheloe v. Traeewell, 11 Gratt. 605; Probst v. Presbyterian Church, 129 IT. S. 190; Jackson v. Porter, 13 Fed. Cas. 238; Bowman v. Lee, 48 Mo. 336; Bracken v. Kailway Go., 75 Fed. 349; Colvin v. Land Ássn., 23 Neb. 75; Smith v. Burtis, 9 Johns. 180; Bedell v. Shaw, 59 N. Y. 50; Schleicher v. Gatlin, 85 Tex. 272; Colvin v. Burnett, 17 Wend. 569.</p> <p>STATEMENT OP PACTS.</p> <p>Suit was instituted by the appellant, in the district court of Santa Fe county, on March 2, 1908, to quiet title to the north half of the northeast quarter of section 17, in township 15 north of range 8 east, against the appellees, and for injunctive relief and damages. The defendants filed an answer, denying appellants’ allegations of ownership of the tract in question; alleged that appellant was in possession of some part or parts of the land in controversy, but denied his possession of all; denied adverse possession by appellant for ten years. The appellee company also counterclaimed, alleging title in itself, and asked to have its title quieted against the appellant. Upon issue joined the cause was tried by the court, and at the termination of appellants’ evidence in chief, upon appellees’ motion for a non-suit, the issues were found in favor of the appellees and a final decree was entered dismissing the complaint, from which judgment this appeal was prosecuted. The facts disclosed by the evidence, so far as they are material to a decision of tlie controverted questions, may be briefly summarized as follows: Tire Bonanzas Mining Company, for many years prior to October 20, 1897, had been in possession of about twenty-five acres of the tract in question, under a claim of ownership. In 1889, the company leased the twenty-five acre tract to John Andrews, the uncle of appellant, who entered into possession of it. A short time after the entry by John Andravs, the appellant joined him. and the two men continued to occupy tlie land under the John Andrew’s lease. For the first few years of the tenancy some rent was paid to the Bonanzas Company. It appears that for some years prior to 189C no rent was paid by the Andrews’, but they recognized the tenancy until 1897. In. October, 1897, 'the sheriff of Santa Fe county, on execution issued against John Gwyn, who was at that time one of the holders of the paper title from the United States Government, sold the whole of the eighty acre tract, at public auction, to Ed. .Bennett, for the use, however, of John Andrews and the appellant, and this fact was announced publicly at the sale by the sheriff in the presence and hearing of the duly authorized agent of the Bonanzas Mining Company, also John Andrews and several other parties. After the sale, the sheriff again informed the agent of the Bonanzas Mining Company that the land had been sold to Ed. Bennett for John and Edgar Andrews. Shortly after the sale the sheriff, at the request of the Andrews’, executed a deed for the property to Fritz Muller, the uncle of the appellant. The consideration for the deed was paid to the sheriff by the Andrews’. The title' to the property, acquired by the sheriff’s deed, remained in Muller until 1993, at which time ho conveyed it to Edgar Andrews at the request of John Andrews, made prior lo the death of John Andrews in 1901. Muller testified that he held the land for the use and benefit of John and Edgar Andrews; that the consideration for the sheriff’s deed was paid by John Andreivs and that the Andrews’ paid the taxes or reimbursed him for the taxes paid on the land in question. After he conveyed the land to Edgar Andrews the tax receipts introduced in evidence fliow that Edgar Andrews paid the taxes and that the land was assessed in his name. It was admitted by the appellant, in the lower court, that the sheriff’s deed to Eritz Muller ivas void, because of irregularities, which need not be set out, as it was conceded by the appellee that the deed, though void, would constitute color of title, but they contended that the possession of Andrews’, from 1897 to 1903, was not under color of title; that such possession iras not possession by Muller under his color of title and that the ten year period fixed by the statute of limitations had not run at the time the suit was instituted.</p>

C. Mectiem, Associate Justice. On demurrer to the evidence every part of the testimony favorable to the plaintiff is deemed to be true and every conclusion which it tends to prove is deemed to be admitted. Jones v. Adair, 91 Pac. 78. The lauf is indulgent to human infirmity and less tolerant of deliberate and obtrusive depravity. Chamberlain v. Chamberlain, 95 Pac. 659. Even where fraud is shown on part of grantor, a court of equity 'may grant relief.

McFie, Associate Justice. After offering land for sale on execution, in parcels, and failing to get bids, a sale en masse is rightful. White v. Crow, 110 U. S. 190; 20 Ene. P. & P. ,217; 17 Cyc. 1251; Oonstock v. Ilill, 127 Colo. 105; Osgood v. Black-more, 59 111. 208. The purchaser is entitled to his deed on the day of the sale and to the immediate possession of the land. Rogers v. Carward, 55 Am. Dec. 733. There was no wrong in the attorney’s bidding and buying.

McFie, Associate Justice. Where a surety enters into a joint and several obligation with his principal, the obligee will be entitled to either a joint or several judgment at his election, but he cannot have both, U. S. v. Price, 9 Iiow. 83; U. S. v. Cushman, 2 Summer 240; Sheelry v. Manderville, 6 Cranch 253; Sessions v. Johnson, 95 H. S. 347; H. S. v. Ames, 99 H. S. 35; King v. Hoare, 13 Mees & W. 494; Robertson v. Smith, 18 Johnson 459; Ward v. Johnson, 13 Mass. 148;…

Pope, Chief Justice. If the insurance company, before the time expires for furnishing proofs of loss, denies the liability of the company, it is a waiver of the necessity to furnish them. Eobinson v. Palatine Insurance Co., 11 N M. 162; Eoyal Insurance Co. v. Martin, 192 IT. S. 385; Tayloe v. Merchants’ F. Ins. Co.,. 9 How. 390; 19 Cyc. p. 859; ,Phcenix Ins. Co. v. Luce, 123 Fed. 723; Phoenix Ins. Co. v. Kerr, 129 Fed. 723 (C. C. A.); Bank v. Home Ins.

C. Mecitem, Associate Justice. It is the duty of a traveler upon a public road, approaching a railway crossing, to approach cautiously and carefully using his faculties of sight and hearing. Pierce on Railroads 343; Wichita etc. R. Co. v. Davis, 37 Has.’ 743; Clark v. Mo. Pac. R. Co., 35 Kas. 354; Chicago etc. R. Co. v. Kuster, 22 111.

<p>Appeal from the District Court for Socorro County, before M. C. Meciiem, Associate Justice.</p> <p>There was no novation. 29 Cyc. 1130; 2 Page on Contracts, secs. 211, 629; 1 Parsons on Contracts 237; Tatlock v. Harris, 3 T. R. 174; Stowell v. Cram, 184 Mass. 563; Boston Ice Co. v. Edward Potter, 123 Mass. 28; Charles v. Amos, 10 Colo. 276; Yance v. -Mfg. Co., 82 Fed. 251; 21 Enc., 2 ed. 666.</p> <p>A novation upon condition cannot exist until the condition is fulfilled. Hyde v. Booraem, 16 Pet. 180; 21 Enc. 670; Wilson v. Copeland, 106 Eng. Rep. 1176; ex parte South, 36 Eng. Rep. 907; Edgell v. Tucker, 40 Mo. 527; Butterfield v. Hartshorn, 7 N. H. 346.</p> <p>Statute of Frauds. Marion v. Young, 46 Mich. 103; Wierman v. Sugar Co., 106 N. W. 81; Chenoweth v. Building Assoc., 53 S. E. 561; ICelso v. Fleming, 104 Ind. 180; Bank v. Kirkwood, 85 111. App. 235; 184 111. 143; Netterstrom v. Gallistel, 110 111. App. 353; Izzo v. Ludington, 19 N. T. S. 144, 118 N. T. 6721; Mowry v. Trust Co., 16 Fed. 45; Iianson v. Nelson, 84 N. W. 142.</p> <p>Novation. 29 Cyc. 1130.</p> <p>Findings supported by substantial evidence will not be disturbed on appeal. Territory v. Sais, 15 N. M. Ill; Pecos-Yalley Co. v. Cecil, 15 N. M. 45; 29 Cyc. 1132; Walker v. Wood, 110 311. 463; Union Cent. Ins. Co. v. Hoyer, 66 Ohio St. 344.</p> <p>A contract of novation is not within the. Statute of Frauds. 29 Cyc. 1188; 20 Cyc. 160, 186, 188, 216, 253, 263; Phillips v. Ocmulgee Mills, 55 Ga. 633; Neaves v. North State M. Co., 90 N. C. 412.</p> <p>Agreement was unconditional. 1 Dan. Neg. Inst., sec. 81.</p> <p>Damages. C. L. 1891, sec. 3143.; Laws 1901, chap. 51, sec. 39; Dold v. Robertson, 3 N. M. 520; Shafer v. Second Nat. Bank, 4 N. M. 292; Jones-Downs Co. v. Chandler, 13 N. M. 501.</p> <p>STATEMENT OP THE CASE.</p> <p>This is an attachment suit brought by the plaintiff against the defendant, Fanny Y. Van Riper, to recover the sum of five thousand dollars alleged to be due the plaintiffs at and prior to the 21st day of October, 1909, for services rendered to James G. Darden in litigation theretofore pending between Darden.and tbe defendant Fanny Y. Van Riper. It appears that in this prior litigation between Darden 'and the defendant, tlie plaintiffs were attorneys for Darden and that the sum sued fox in this case was due to said attorneys from Darden. It appears, from the record, that this former litigation was between James G. Darden and the defendant, who was at that time the wife of Darden, and the controversy involved a divorce and the adjustment of property rights in a very considerable amount of property. While this litigation was pending negotiations were entered' into for the settlement of the controversy between tbe parties and, on tbe 21st clay of October, 1909, a settlement was agreed upon and effected whereby Darden agreed to convey certain real and personal property to the defendant and the defendant, in considération thereof, agreed to assume and pay Darden’s attorney fee to the plaintiffs in this case, amouiitin to the sum of five thousand dollars. It is admitted that Darden conveyed the property to the defendant and the plaintiffs allege that the defendant received and has' had the benefit of this property since its conveyance to her, but she has failed and refused to pay them the five thousand de-liars which she assumed and agreed to pay them. The findings of. fact of the trial court covering the above issues are as follows: “That at and prior to the 21st day of October, A. D. 1909, plaintiffs had, as such attorneys, rendered legal services to one James Gr. Darden and for which the said James G. Darden was then and there indebted to plaintiff; that on the said 21st day of October, 1909, a settlement was had and effected by and between the said Darden and the said defendant of and concerning certain controversies and litigation in regard to their respective rights in and to certain property, real and personal, situated in the County of Bernalillo, Territory of New Mexico, and elsewhere, whereby the said Darden did promise and agree to convey to the said defendant, Fannie V. Van Riper, certain property, real and personal, in the County of Bernalillo and elsewhere; and in consideration thereof, the said defendant, Fannie V. Van Riper,, did agree to forthwith assume, pay off and discharge the indebtedness of the said Darden to plaintiff, which said indebtedness was then and there ascertained to be and was fixed at the sum of five thousand dollars, which sum defendant agreed to pay to plaintiffs herein and plaintiffs, in consideration of said promise and undertaking of 'defendant, agreed and promised to accept the said sum of five thousand dollars from the said defendant, Fannie V. Van Riper, in full payment and discharge of said indebtedness and agreed to release, and did release and discharge the said Darden, for and on account of the said indebtediiess. It is further found that the said James G. Darden did on the said date convey to the said defendant the said property- as he agreed to do and that the said defendant, Fannie Y. Yan Riper, accepted and still holds and retains the same and the rights and benefits thereof; that the- said defendant, though often requested, has failed and refused to pay the said sum of five thousand dollars to these plaintiffs, or any part thereof; that by reason of the said refusal of the said defendant, the said plaintiffs have been damaged in the sum of five thousand dollars, with interest at the rate of six per cent, from the 21st day of October, 1909, amounting to the sum of three hundred dollars; that all the other allegations of the complaint of plaintiffs are true. It is further found that the said cause was instituted by the said plaintiffs against the said defendant by attachment and that the property belonging to the said defendant, situated in the County of Bernalillo, Territory of New Mexico, was attached; and it is further found that the said Fannie Y. Yan Riper is not a resident of, nor resides in this territory and that the said defendant has no property situated in the County of Socorro, Territory of New Mexico; and that the said grounds of attachment are sustained; and that while the said attachment so sued out by plaintiffs against the property of said defendant was in full force and effect, and before judgment was rendered in this cause, that the defendant executed a. bond to the said plaintiffs, reciting and specifying the property so attached, and conditioned that if the defendant should perform the judgment of the court in the premises, than the said bond to be null and void, but otherwise to remain in full force and effect; that the said bond was executed by the said defendant, Fannie Y. Yan Riper, as principal, and the United States Fidelity and Guaranty Company, as surety, on the 6th day of May, 1910, and filed in this court on the 9th of May, 1910, upon the said property belonging to the said defendant, so attached by the process of this court, sued out on behalf of plaintiffs, and thereafter by an order of this court entered in this cause on the 19th day of May, 1910, discharged the said attachment, and the levy made thereunder by the sheriff of Bernalillo County, released, and restitution made the defendant of all property taken or levied upon, pursuant to said writ of attachment." Jury being waived, trial was had by the court and judgment was rendered for the plaintiffs in the sum of five thousand three hundred dollars and interest, to reverse which judgment defendant has appealed to this court.</p>

<p>SYLLABUS (BY THE COURT).</p> <p>1. Under the circumstances disclosed by the record in the case it was clearly within the discretion of the trial court to refuse to grant a continuance to the defendant.</p> <p>2. In an indictment ior larceny it is not necessary to allege that the owner of the property, the larceny of which is charged, is a corporation and if that allegation is made and if it is thereby made necessary to prove the existence of the corporation, evidence of its de facto existence is sufficient.</p> <p>3. The giving of an instruction, which, although a correct statement of law, may be outside of the evidence in the case is not a good ground for a new trial or reversal it on other matter covered by the indictment there was evidence to warrant a conviction.</p>

<p>SYLLABUS.</p> <p>1. Pleas in abatement are dilatory pleas and are subject to the- most technical rules of pleading and the greatest accuracy and precision are required in framing them.</p> <p>2. It is not necessarily true that secondary evidence is not legal evidence.</p> <p>2. That appellant was subpoenaed and compelled to appear before the grand jury was not a violation of his constitutional rights, nor is the fact that he was sworn before such body and there testified to facts that did not incriminate himself.</p> <p>4. If appellant was compelled over his protest to 'be a witness against himself before the grand jury and was compelled to testify to matters and things over his protest incriminating or tending to incriminate himself, it was a direct violation of his constitutional right guaranteed him.</p> <p>5. The allegations in the plea are at best mere conclusions. The facts themselves must be stated and so clearly and definitely set forth as not to leave unobviated any supposable special answer.</p> <p>6. Continuance properly denied..</p> <p>7. The statute regulating continuances because of absent witnesses is mandatory and when the application for continuance complies with the statute there is no room for the court to exercise any discretion.</p> <p>8. This court will no.t consider any alleged error in the omission to give instructions unless exception is duly taken and unless a request is made for such instruction.</p> <p>9. Instructions examined and found fairly and completely to cover everything in the refused instruction.</p> <p>10. In order to secure review by an appellate court of improper argument before the jury, by counsel, the attention of the trial court must be immediately called to the objectionable remarks and request be made for the interference of the court, and, in case of refusal, an exception be noted.</p> <p>11. Counsel and court considered that admonition by the court cured the objectionable remarks of the prosecuting attorney, and counsel cannot now be heard to question such ruling in the absence of a specific exception.</p>

<p>.SYLDABU® (BY THE COURT).</p> <p>1. The burden of proving beyond a reasonable doubt the guilt of one on trial for crime, including the degree of sanity legally essential to the commission of the crime charged, is on the prosecution throughout the trial, but the presumption of sanity stands as a fact established for the prosecution, unless there is sufficient evidence of insanity on one side or the other to create a reasonable doubt of sanity.</p> <p>2. The power of a trial court over the order of introduction of evidence is not absolute and does not include the right to reject admissible evidence When offered on the ground that the defendant on trial had not himself testified and laid a foundation for the testimony rejected it appearing that the same foundation would be laid by the witness then offered.</p> <p>3. While the word, irrationality, is sometimes used as a synonym for insanity, the admission of evidence of the irrationality of the defendant did not cure the rejection of evidence offered of his “insanity,” under the circumstances stated in the opinion.</p> <p>4. The opinion of a non-expert witness-, who has had wide opportunityfor observation, is admissible on the question of the insanity of a defendant on trial for murder, although the witness may be unable to give in detail all the circumstances and- appearances which led her to think there had been a change from sanity to insanity. The duty of the trial court to pass beforehand on the qualification of such a witness to testify is to be exercised with due regard to the rights, of the defendant, and its decision may be reversed when it is clear that through it the defendant was deprived of what was essential to a fair trial.</p>

<p>SYLLABUS.</p> <p>1. Amendment of answer by interlineation permissible, but if it was- error, it was harmless error.</p> <p>2. There being substantial evidence to sustain the findings of the lower court the appellate court will not weigh the evidence.</p>

Abbott, Associate Justice. The exemption law in force at the time the contract was made governs the rights o£ the parties. C. L. 1897, sec. 1737; Laws 1909, chap. 63, sec. 26; Gunn v. Barry, 15 Wall. 610; Edwards v. Keasey, 96 U. S. 607; Waples Horn. & Ex., sec. 9; 18 Cyc. 1378. Terms “wages” and “salary” are not entirely synonymous. 12 Enc. Law, 2 ed. 135, 138; South etc. K. Co. v. Falkner, 49 Ala. 115; McLellan v. Young, 54 Ga. 399.

<p>Appeal from the District Court for Taos County, before John R. McFie, Associate Justice.</p> <p>Change of venue. Territory v. Kelly, 2 N. M. 301; Rafferty v. People, 72 111. 37; Territory v. Kinney, 3 N. M, 143; Territory v. Lopez, 3 N. M. 156; Territory v. Taylor, 11 N. M. 588; Freleigh v: State, 8 Mo. 436; Johnson v. Com., 82 Ky. 116; 12 Cyc. 243.</p> <p>Refusal to grant continuance was error. Terr. v. McFarlane, 7 N. M. 421; Money’s Dig. 39; Territory v. Watson, 12 N. M. 419; Kinney v. Territory, 3 N. M. 656; Bowlin v. Com., 22 S. W. 543; Harrington v. State, 21 S ' W. 356; Casey v. State, 102 S. W. 725; Tull v. State, 55 S. W. 61; Thompson v. State, 78 S. .W. 691; Stegor v. State, 105 S. W. 789; Territory v. Leary, 8 N. M. 186; Territory v. Emilio, 14 N. M. 153.</p> <p>Flight does not create a presumption of guilt.</p> <p>Starr v. TJ. S., 164 TJ. S. 627; Alberty v. TJ. S., 162 TT. S. 499; Hickory v. TJ. S., 160 TJ. S. 408; TJ. S. v. Green, 146 Fed. 803; State vs. Poe, 123 la. 118; People y. Wong Ah Ngow, 54 Cal. 151; State v. Arthur, 23 la. 430; 22 A. & E..Ene. L. 1265; 12 Cyc. 395; Sheffield v. State, 43 Tex. 378.</p> <p>Instruction as to voluntary manslaughter. Maher v. People, 10 Mich. 212; Seals v. State, 3 Baxt. 466; 21 A. E. Ene. L. 179; Lister v. State,_ 3 Tex. App. 17; 12 Cyc. 612; Milton v. State, 6. Nebr. Í36; Elliston v. State, 10 Tex. App. 361; Ainsworth v. State, 11 Tex. App. 339; Young v. State, 11 Humph. 200; State v. Adams, 78 la. 292; Stevenson v. TJ. S., 162 TJ. S. 980.</p> <p>Doubt. Biberry v. State, 133 Ind. 677; People v. Johnson, 140 N Y. 350; Robinson v. State,, 106 Pac. 24; State v. Raby, 61 la. 86; State v. Tajdor, 57 W. Ya. 228; Fife v. Com., 29 Pa. St. 429.</p> <p>Proof of cause of death. Waller v. People, 209 111., 287; 21 Cyc. 999.</p> <p>Instruction concerning flight being a presumption of guilt was not 'prejudicial to defendant. State v. Milligan, 170 Mo. 215; State v. Hartman, 196 Mo. 110; State v. Seymour, 94 la. 699; Hickory v. TJ. S., 160 TJ. S. 421; Alberty v. TJ. S. 162 TJ. S. 508; Starr v. TJ. S., 164' L. S. 631; State v. Arthur, 23 Iowa 431; Sta-te v. Williams, 54 Mo. 170; State v. Brookes, 92 Mo. 542; State v, Jackson, 95 Mo. 623; State v. Walter, 98 Mo. 95; State v. Potter, 108 Mo. 424; State v. Arthur, 23 Iowa 431.</p> <p>Instruction as to voluntary manslaughter. Territory v. Fewel, 5 N M. 34.</p> <p>Doubt. Robinson v. State, 106'Pac. 27; State v. Ruby, 61 Iowa 88; State v. Taylor, 57 W. Ya. 239; Fife v. Comm., 29 Pa. 438; Nevling v. Comm., 98 Pa. 334; Willis v. State, '43 Neb. 102; Barney v. State, 49 Neb. 516; Davis v. State, 51 Neb. 349; Bartley v. State, 53 Neb. 312.</p> <p>Evidence as to cause of death. Waller v. People, 209 111. 288.</p>

<p>Appeal from the District Court for Santa Ee County, before John R. MoFie, Associate Justice.</p> <p>Defendant was not an agent. 31 Cyc. 1189; Stock Exchange v. Keyes, 67 111. App. 462; Mechem on Agency, sec. 1; 2 Kent’s Comm. 784; Bishop on Contracts, see. 1027; 2 Page on Contracts, sec. 960; Parsons on Contracts 138; 31 Cyc. 1194; Caseman v. Brown, 148 D. S. 582.</p> <p>Merchant and customer, seller and buyer. Kelly, Maus & Co. v. Sibley, 137 Fed. 588; Black v. Webb, 20 Ohio 304.</p> <p>Defendant was owner of piano. New Haven Wire Co. Cases, 57 Conn. 352; Moors v. Kidder, 106 N. Y. 32; Bank v. Logan, 74 N. Y. 568; Simonds v. Wright-man, 36 Ore. 120; Land Co. v. Exchange Bank, 101 Ga. 345; State v. Kemp, 22 Minn. 42; Commonwealth v. Sterns, 2 Met. 343; Commonwealth v. Libbey, 11 Met. 64; 45 Am. Dec. 185; 2 Bish. New Crim. Laws, secs. 345, 369; State v. Reddick, 2 S. D. 124; Yan Etten v. State, 24 Neb. 734; McElroy v. The People, 202 111. 475; State v. Cusnie, 45 Ohio St. 535.</p> <p>Debtor and creditor. Hamilton v. State, 46 Neb. 287; State v. Covert, 14 Wash. 652; Commonwealth v. Young, 9 Gray 5; Webb v. State, 8 Tex. App. 310; Mulford v. People, 139 111. 594.</p> <p>Felonious intent. Calkins v. State, 98 Am. Dec. 132; Copi. v. Tuckerman, 10 Gray 173; 1 Whar. Or. L., sec. 1030; State v. Tompkins, 32 La. Ann. 620; Fleenerv. State, 58 Ark. 104; State v. Culver, 97 N.' W. 1016; Beaty v. State, 82 Ind. 233; People v. Iiurst, 62 Mich. 276; State v. Nolan, 111 Mo. 473; State v. Cunningham, 154 Mo. 161; State v. Kigali, 169 Mo. 663; Wiley v. The State, 97 Ga. 207; Kribs v. The People, 82 111. 426.</p> <p>A conviction cannot be sustained for embezzlement when the proof tended merely to show that the money was an advance payment on a contract which the accused wholly failed to perform. State v. Culver, 97 N. W. 1015; Wiley v. State, 97 Ga. .207; Mulford v. The People, 139 111. 586; Beaty v. The State, 82 Ind. 228; Keg. v. Norman, 41 E. C. L. 274; Keg. v, Keed, 1 Carrington & M. 306; Bish. Or. L., sec. 240; Whar. C. L., sec. 1940; 1 Gr. on Ev., sec. 51; Keeler v. The State, 4 Tex. App. 527.</p> <p>Directed verdict. Simonds v. R. K. Co., 110 111. 340; Pleasants v. Pant, 22 Wall. 120; Randall v. K. K. Co., 109 H. S. 482; Sparf v. H. S., 156 H. S. 101; H. S. v. Kuhl, 85 Fed. 624; Pleasants v. Fants, 8 Rose’s Notes 505.</p> <p>A wrong ruling which operates to exclude ’material facts is prejudicial. Elliott App. Pr., sec. 653.</p> <p>Trade journals are evidential. Jones on Ev., 2 ed. 582.</p> <p>Where there is substantial evidence to support a verdict it will not be disturbed by the appellate court in the absence of legal errors. Territory v. Maxwell, 2 N. M. 250; Territory v. West, 14 N. M. 546; Territory v. Neatherlin, 13 N. M. 491; Candelaria v. Miera, 13 N. M. 360.</p> <p>Relation of principal and agent " existed. . 31 Cyc. 1189, 1216; Holmes v. Tennessee Coal Co., 22 South. 403; Smith v. Simmons, 103 Pa. 32; 1 Bouvier’s Law Diet.; People v. Treadwell,, 69 Cal. 226; Pullam v. State, 78 Ala. 31; State v. Heath, 8 Mo. App. 99; Com. v.Young, 9 Gray 5, Mass.</p> <p>Relationship of vendor and vendee did not exist. Kelly, Mans & Co. v. Sibley, 137 Fed. 588; Black v. Webb, 20 Ohio 304.</p> <p>Defendant received money'of his principal and converted it to his own use. Walker v. State, 117 Ala. 42; Eggleston v. State, 192 Ala. 80; State v. Lewis, 31 Wash. 75; State v. Buchanan, 43 Wash. 387; People v. Hurst, G2 Mich. 276; State v. Cunningham, 150 Mo. 161; Wiley v. State, 97 Ga. 207; Kribs v. The People, 82 111. 426; Keeler v. The State, 4 Tex. App. 527.</p> <p>Court could not direct verdict of acquittal. Simonds v. B. B. Co., 110 111. 304; Sharf v. H. S., 156 H. S. 101.</p> <p>Conversion. Iiaupt v. State, 108 Ga. 60.</p>

<p>SYLLABUS (BY THE COURT).</p> <p>1. The title papers of the town of Tome grant examined and held to be a community grant of the nature described in United .States v. Sandoval, 167 U. S. 278; Rio Arriba Company v. United States, 167 U. S. 298, and United States v. Pena, 175 U. S. 500.</p>

<p>SYLLABUS (BY THE COURT).</p> <p>1. By the eighteenth sub-section of section 2402, C. L. 1897, cities are granted the following power: “To have the right to license, ¡regulate or prohibit the selling or giving away of any intoxicating, malt, vinous, mixed, or fermented liquor within the limits of the city.” Held, that Sec. 3, ordinance No. 213 of the City of Roswell, which provides that: “On and after the first day of Juné, 1910, it shall be unlawful for any person or common carrier to knowingly bring intoxicating liquors irom any city, town or village, or other place, within the Territory of New Mexico, into the City of Roswell,” is an attempt to exercise a power neither expressly nor impliedly granted by the eighteenth sub-section of Sec. 2402, O. L. 1897, and therefore void.</p>

<p>Appeal from the District Court for Chaves County, before William H. Pore, Chief Justice.</p> <p>Duty of holder of escrow. 2 Page on Contracts, -sec. 585; Davis v. Clark, 5.8 Kas. 100; Roberts v. Mullenix, 10 •Kas. 22; Grove v. Jennings, 46 Kas.-366; 16 Cyc. 576, '584; 11 -A. & E. Enc. 352; Humphrey v. Richmond etc. R. R. Co., 13 S. E.-985; Burlington R. R. Co. v. Palmer, 42 Iowa 222; Bodwell v. Webster/113 Pick. .411; Hayton v. Meeks, 14 S. W. 864, Ark.; Equity Gaslight Co. v. McKeige, 34 N. E. 898, N. Y.; Eiggs v. Trees, 5 L. E. A. 696, Inch; Iioyt v. MeLagan, 87 la. 146.</p> <p>A court has the power to overrule its decisions which 'were clearly erroneous. Borden v. N. P. E. E. Co., 154 U. S. 322; Kilbourn v. Thompson, 103 H. S. 168; Thaw v. Eitchie, 4 Mackey 384-, D. C.; Hastings v. Foxworthy, 45 Neb. 676; Bobbins v. Chicago City, 4 Wall. 657.'</p> <p>Statute of frauds. 29 A. & E. Enc. 807; Emerson v. Slater, 22 How. 42; Swain v. Seeman, 9 Wall. 254; Kirchner v. Laughlin, 4 N. M. 394; Hasbrouck v. Tappen,</p> <p>15 Johns. 200; Hersley v. Savanstrom, 41 N. W. 1027; Athe v. Bartholomew, 33 N. W. 110; Abel v. Munson, 18 Mich. 305; Cook v. Bell, 18 Mich. 389; 29 A. & E. Ene. 824; 20 Cyc. 296; Warvelle on Vendors, sec. 419.</p> <p>Matters of law determined upon a former appeal become the settled law of the case, are binding upon the court and the litigants, and cannot be reviewed on second appeal. Dye v. Crary, 13 N. M. 439; 3 Am. Dig., col. 234-0; 2 Am. Dig. 732.</p> <p>One wrongfully withholding property may be proceeded against by the owner, even if the latter be a stranger to the arrangement whereby the same was deposited or bailed. Wells v. Am. Exp. Co., 42 Am. Eep. 695. Wis.; Doty v. Hawkins, 25 Am. Dec. 459, N. H.; Clark v. Eureka County Bank, 123 Fed. 922.</p> <p>STATEMENT OF FACTS.</p> <p>This cause of action was before this court upon practically the same record and upon the former hearing the case was reversed with instructions to the lower court to reinstate the cause and proceed in accordance with the views therein expressed. 15 N. M. 680. Upon the second trial of the cause in the court below no new pleadings or •amendments to the pleadings were made and no additional evidence was introduced. The court below, in accordance with the mandate of this court, made findings of fact and conclusions of law and entered judgment for the appellees, from which judgment this appeal is prosecuted.</p>

Mills, Chief Justice. Mandamus is appropriate remedy. C. L. 1897, sec. 2716; Laws 1903, p. 73, sec. 7; Walkley v. City of Muscatine, 6 Wall. 481; La Grange v. State'Treasurer, 24 Mich. 469. • A judgment on default is as conclusive against collateral attack as any other form of judgment. Ruppin v. McLachlin, 98 N. W. Rep. 153; 23 Cyc. 1077; Noble-v. Union River Logging R. R., 147 H. S. 165; Hahn v. Kelly, 34 Cal. 391; Iluling v. Kaw Valley Ry., 130 H. S. 559; High on Ex.

<p>SYLLABUS.</p> <p>1. Appellant cannot be heard to complain of error invited by himself.</p> <p>2. A verdict will not be set aside on appeal when it is supported by substantial evidence.</p> <p>3. A citizen, has a right ,to go, if requested, with a constable to make an arrest.</p> <p>4. Five form® of verdict as to manslaughter submitted by court to jury examined and found correct.</p> <p>5. Alleged, threats, of deceased properly excluded as at that time no evidence had been presented from which the attitude and conduct of the deceased was in doubt.</p> <p>6. Alleged conversation of deceased with one of the defendants- properly excluded as, antagonizing the rule against showing specific acts of violence and requiring proof •of general reputation.</p> <p>7. Evidence properly excluded because of irrelevance.</p> <p>8. Requested instruction faulty because it entirely omitted the fundamental requirements that the circumstances must be viewed by the jury as they reasonably appeared to the defendants-.</p> <p>9. Jury not misdirected because of the omission in the instruction of the negative words “without malice,” as it in no way decreased the amount of proof required to convict, but was an omission in defendant’s, favor and of which he ■cannot complain.</p> <p>l'O. Requested instruction not correct ¡statement of law, as it was- not necessary to verdict, for defendant to have provoked the quarrel in which -the homicide occurred.</p> <p>11. No different and proper instruction more fully covering the law of self defense being requested, there is no error in the given instruction objected to, which as far as it went was- correct.</p> <p>12. Searches and seizures, provided against in the Constitutional guarantee are those of the government or the ■states- under state constitutions and are not the unlawful acts of individuals.</p> <p>13. It is not true as a matter of law that a person may resist illegal arrest to the -extent of taking life in the absence of an attempt on t'he part of the person killed to- take life or to do great bodily harm.</p>

<p>Appeal front the District Court for Lincoln County, before E. R. Wright, Associate Justice.</p> <p>Mandamus was the proper remedy. C. L. 1897, secs. 632, 633; Laws 1907, chap. 87; Gray v. Tajdor, 15 N M. 742; 19 A. & E. Enc.,'2 ed. 775; State v. Stock, 16 Pac. 106, 799; Kas.; State v. Burton. 27 Pac. 141, Kas.; State v. Weld, 39 Minn. 426; Wells v. Taylor, 5 Mont: 202; Calaveras County v. Brockaway, 30 Cal. 325.</p> <p>Where the duty is required to be performed by law and is of public nature, the law is sufficient demand and omission to perform is refusal. 19 A. & E. Enc.,, 2 ed. 760; Atty. General v. Boston, 123 Mass. 460; North Pac. Ed. v. Dustin, 142 U. S. 508; T-Tigh Ex. Legal Eem., sec. 431; Union Pac. E. E. Co. v. Hall et al, 91 U. S. 355; Duty of officers to keep offices at county seat. C. L. 1884, secs. 411, 415; C. L. 1897, secs. 630-634, 747, 749; State v. Woods, 104 Mo. 459; Williams v. Beutzel, 60 Ark. 155; AVhallon v. Circuit Judge, 51 Mich. 503: Acts 1897, chap. 6; Acts 1903, chap. 38; Acts 1905, chap.'119; Acts 1907, chap. 87; Acts 1909, chap. 80; Lewis Suth. Stat. Con. ■1-63, secs. 246, 257.</p> <p>Eepeal by implication. Baca v. Bernalillo County, 10 N. M. 438; Sandoval v. County Com., 13 N. M. 543; Territory v. Digneo, 15 N. M. 159; Front v. AVenie, 157 G. S. 46; U. S. v. IiealeA, 160 U. S. 147; Lewis Suth. Stat. Con., secs. 37, ,267, 348; McCartte v. Orphan As3dum Society, 18 Am. Dec. 516, N. Y.; Baca v. Perea, 8 N. M. 187; Douglass v. Leivis, 3 N. M. 596; County Com. Socorro County v. Leavitt, 4-N. M. 37; Coler v. Co. Com., 6 N. M. 88.</p> <p>Officers are not required to remove offices and books to neAY county seat before court house and jail are completed. Laws 1907, chap. 87; LaAvs 1903, chap. 38; C. L. secs, 630-635; Baca v. Bernalillo, 10 N. M. 438; San-, doval v. Countv Com., 13 N. M. 543; Territory v. Digneo, 15 N. M. 154. “</p> <p>A general statute Avithout negative words will not repeal by implication from their repugnancy, the provisions of a former one AAdiich is special and local. 1 Lewis Suth. Stat. Con., secs. 256, 274, 275, 465, 532; Winslow y. Morton, 118 N. C. 491; Endlich on Inter. Stat., sec. 223.</p>

Entries of land segregate tlic lands so entered from the public domain until sucli entries are finally canceled. 1 Land Dec. 362; Witherspoon v. Duncan, 4 Wall. 218; U. S. Rev. Stat., secs. 2325, 2290; St. Paul M. & Sí. R. R. Co. v. Forseth, 3 Land Dec.'446; Yan Gesner v. IJ. '■S., 153 Fed. 46; 31 Land Dec. 482; Germania Iron Co. v. James, 89 Fed. 811; James v. Germania Iron Co., 107 Fed. 605.

<p>■SYLLABUS.</p> <p>1. Where provision is made by statute for an officer to hold over until his successor is duly elected and qualified, the hold-over is regarded as in all respects a de jure officer and the expiration of his term does not produce a vacancy which may be filled by the authority 'having the power to fill vacancies. *</p> <p>2. There would be no vacancy until such time as the Governor and Legislative Council should unite in an appointment and the previous incumbent of .the office, being entitled to hold until .such appointment was duly made, would continue in such office unless removed pursuant to law.</p> <p>3.The writ of ouster does not reinstate the one legally entitled to the office or actually ■ put him in possession thereof, but in the ca-e at bar the decision of the court in the'quo’ warranto proceeding decided that the respondent was not entitled to the office. This, left the relator as the de jui-e officer entitled to the possession and legally qualified to fill the office.</p>

<p>The ditches axe community ditches. C. L. 1897, sees. 8, 10; Yernon Irrigation Co. v. City of Los Angeles, 39 10; Yernon Irrigation Co. v. City of Los Angeles, 39 Pac. 765; Hart v. Burnett, 15 Cal. 538; Lux v. Haggin, 10-Pac. 713.</p> <p>Injunction is the proper remedy. H. S. v. Alexander, 46 Fed. 728.</p> <p>Priority. Bev. H. S. Stat., sec. 2339.</p> <p>Community ditches. C. L. 1897, secs. 8-15; Laws 1895, chap. 1; Laws 1903, chap. 98; Laws 1899, chap. 44; 2 Machemos Mod. Law of Corp.. secs. 1477, 1480.</p> <p>Presumption in favor of corporate acts and doings. Water may be sold separate from the land. 3 Farnham Water and Water Eights 2004; McPhail v. Forne]'", 4 Wyo. 556; Arnett v. Li'nhart, 21 Col. 188; Strielder v. Colorado Springs, 16 Colo. 61; Crippen v. Comstock, 66 Pae. 1074; Cache La Poudre Co. v. Eeservoir Co., 25 Colo. 144. The last case is one which affirms the same case in the 8th Colorado Appeals 234; Wiel on Water Eights 590; Cooper v. Shannon, 36 Colo. 98.</p> <p>Quo warranto. 32 Cye. 1412; Moody v. Lowrimore, 74 Ark. 421; Ames y. ICas., Ill TJ. S. 449; 14 A. & E. Cyc. Law, Franchises; ex parte Ilenshaw, 73 Cal. 493; Spring Y. W. Works v. Shotler, 62 Cal. 110; State v: Boston, 25 Yt. 442; Feitsam v. Hay, 122 111. 295; Armijo v Baca, 3 N. M. 391.</p> <p>STATEMENT OF THE CASE.</p> <p>The plaintiff alleges that it is a corporation, organized and existing under the laws of New 'Mexico and entitled to control and distribute the waters of the Tularosa river in the County of Otero, in the interest and for the benefit of those entitled to use those waters; that the defendant, the Tularosa Community Ditch was organized “in the interest of certain so-called ‘shareholders/ ” whose “water rights and shares * * * are solely of speculative character, and their source of origin was not the appropriating and placing of any of said waters of the Tularosa river to a beneficial use or applying or using the same on any specified land as is required by law,” that the said defendant, the Tularosa Community Ditch, “has assumed to act in a corporate capacity without any lawful right or authority to do so,” and “that at the present time and for some time past the said defendants, W. D. Tipton, E. ICnight, anil J. J. Dale, claiming to be the commissioners of said ‘The Tularosa Community Ditch/ and the said E. II. Simmons, claiming to be the mayordomo of said ‘The Tularosa Community Ditch/ have wrongfully and unlawfully assumed to act as commissioners and mayordomo respectively, of said so-called ‘The Tularosa Community Ditch/ and have wrongfully and unlawfully, and by intimidation and threats of injury and violence prevented the said original. settlers, their successors, heirs and assigns, from enjoying and using the full and proper quantity of said waters necessary for the irrigation of their ‘Solares’ and ‘Ilortolizas’ in said Town of Tularosa, and have wrongfully and unlawfully interfered with said acequias and water ditches and with the commissioners and mayordomo of said ‘The Community Ditches or Acequias of Tularosa Townsite/ in the exercise of their duties in regulating the use of said water ancL regulating the use of and maintaining the said acequias and water ditches, and wrongfully and unlawfully have diverted and used much water therefrom in and upon desert land outside of the Town of Tularosa which has been grubbed, broken and put in cultivation since January 1, 1909, as well as prior thereto, and have aided and abetted the said organization known as ‘The Tularosa Community Ditch’ in the wrongful commission of all the acts mentioned and complained of and propose to continue so to do, and will continue so to do unless enjoined and restrained by a decree of this honorable court.” The complaint concludes with a prayer for equitable relief, and especially that the defendants “be enjoined from in any manner interfering with said aceojuias and water ditches ox with the waters of said Tularosa river therein, or in any maimer interfering with said .plaintiff, its commissioners or mayordomo in the management and control of said acequias and water ditches or the use or regulating the. use of the waters therein.” At the close of the evidence for the plaintiff the defendant demurred to it on several grounds, among them, “that plaintiff has not shown that it had charge of or control of the community ditch in question. Plaintiff lias not shown that it has any right to institute this action.” The demurrer was sustained for the reason, with others, “that the procedure brought is not a proper procedure to determine the rights of the plaintiff or defendant to control the use and disposition of this water,” and the petition was dismissed “without prejudice to any of the rights of any individual whatever who may have right in and to the waters or ditches referred to in the pleadings.”</p>

<p>SYLLABUS.</p> <p>1. To establish its claim of title to an undivided interest of the overlap of two grants, the intervenor introduced the Act of Confirmation by ¡Congress and the patent issued thereunder. To avoid the apparent effect of this proof the appellees must accept the burden of establishing a perfect legal title or right independent of their title by the Act of Confirmation.</p> <p>2. Upon the cession of New Mexico to the United States all the laws of Mexico relating to .subjects non-political in their character remained in force, but were administered by officers appointed and controlled by the United States. Likewise, in Mexico, after the independence of that country by the plan of Iguala and the other acts referred to, the laws of Spain in force at that time of a nonpolitical character were continued and remained in force and the officers of Spain having in charge the enforcement of those laws were made the officers of the Mexican nation.</p> <p>3. The Preston Beck and Perea grants' being both void grants owe their validity entirely to the Act of Congress confirming them.</p> <p>4. The right to a patent once vested is treated by the government, when dealing with public lands, as equivalent to a patent issued. When in fact, the patent does issue, it relates back to the inception of the right of the patentee, so far as it may be necessary to cut off intervening rights.</p> <p>5. The above rule can have no application to the case at bar, because it cannot be said, either upon the application to the Surveyor General or upon his favorable report upon the application, did a right to patent vest.</p> <p>6. The claimants of the Preston Beck grant had no equitable right or title previous to the Act of Confirmation. The Act of Confirmation should not, as to the Preston Beck grant, be given effect by relation as of an earlier date, so as to take priority over the Perea grant. Both are equal in time. The intervener and appellee holding by the same Act of Congress .so far as their grants conflict or overlap, have each an equal undivided moiety of the lands within the conflict.</p> <p>7. The giving of juridical possession in- 1835 to the Beck grant did not constitute a circumstance granting a feature of superiority, although no juridical possession was conferred to the Perea grant.</p> <p>8. Even though when the treaty was signed, there was a license to occupy in favor of the Beck grantees, this license or permissive possession was revoked ipso facto by the treaty and when the treaty was signed these proppertles passed to the United States as public domain to be dealt with by Congress.</p> <p>9, The mere circumstance that one claimant reached the Surveyor General’s office first in order'to present ’his claim cannot he considered as affecting the rights of other parties.</p> <p>10. The fact that a contract for survey had been first iet for the Beck grant could not operate to render nugatory an Act -of Congress which confirmed equally to the Perea grant and to the Beck grant the interest of the government in the lands involved.</p>

J. Roberts, Associate Justice. Record proper. Laws 1897, chap. 57, secfe. 22, 24, 26; Street v. Smith, 15 N. M. 95. The statute requires five days’ notice to the opposite party before signing and settlement of the bill, this was not given, it is mandatory.