Volume 17 — New Mexico Reports

<p>Petition for quo warranto by the State, on the relation of O. L. Owen, against George TL Van Stone.</p>

Without demand, it was error for the court to find for appellee and render judgment in his favor. Cobbey on Replevin, sec. 481; Badger v. Phinney, 15 Mass., 364; Barnes v. Gardner, 26 N. W., 858; Wheeler & Wilson M. ■Co. v. Tertzlaff, 10 N. W., 155; 34 Cyc. 1404; State to Use, etc. v. Daily, 7 Mo. App. 548. The law requires only such formality of a transfer of dominion, or placing the donee in a position to assume ■dominion as will carry out the intention of the donor.

A condition of sale is one which depends for its validity upon the fulfilment of some condition. Bouvier’s Law Dictionary; Am. & E. Enc. of Law, vol. 6, p. 453; Hamilton v. Highlands, 144 N. Car. The notes were negotiable instruments notwithstanding the fact there was a condition in the notes. Montgom-. ery First Natl. Bank v. Slaughter 98 Ala. 602; Commercial Natl. Bank v. Consumer’s Brewing Co. 16 App.

<p>SYLLABUS (BY THE COURT).</p> <p>1. A count of an indictment is not double which charges several different acts, set forth in a section of the statute, as constituting an offense, provided, such acts are not repugnant.</p> <p>2. The District Court has jurisdiction in larceny cases, even though the original taking occurred within an Indian reservation, where the cattle were driven from the reservation into the jurisdiction of the District Court, so long as the felonious intent continued.</p> <p>3. The brand law does not require that ownership must be proven by the brand alone, but ownership may he proven by flesh marks or other proper evidence, as if no brand law existed.</p> <p>4. Statements made in the presence of a defendant of sufficient importance to call for affirmance or denial, may be presumed to have been acquiesced in by him by virtue of his silence.</p> <p>5. If counsel fail to ask for an instruction which they think should be given, the failure of the Court to give such instruction cannot be taken advantage of on appeal.</p>

<p>Appeal from the District Court of Chaves County, before-William II. Pore, Chief Justice.</p> <p>Object of statute is to apprise a party of a specific demand of his adversary. Dwight v. Germania L. I. Co., 84 N. Y. 509; Blackburn v. Washington Gold Min. Co., 53 Pac. 369; Ingram v. Washkah Boom Co., 77 Pae. 34; Willis v. Bailey, 19 Johns. 268; 26 Pac. 537; vol. 6 Enc.. PI. & Pr. 802.</p> <p>Purpose of bill of particulars, 3rd vol. Enc. P. & Pr. 519..</p> <p>STATEMENT OP PACTS</p> <p>Suit was begun by appellant in the District Court of Chaves County to recover from appellee the sum of $80.72, alleged to be the unpaid balance for certain goods, wares' and merchandise sold appellee by A. E. Smith & Sons Lumber Company, who thereafter assigned the account to-appellant. The appellee answered, denying the indebtedness, and thereafter, and prior to trial, demanded in writing of the appellant a copy of the account basing such demand upon provisions of Sec. 69 of the Code of Civil Procedure. Appellant failed to furnish such account, and upon the trial, objection was interposed by appellee to the admission of any evidence tending to prove such account. The Court excluded all proffered testimony and appellant, necessarily failed to establish its case, and judgment went for the appellee, from which judgment this appeal is prosecuted. ^</p>

<p>Appeal from the District Court of Hnion County, before C. J. Roberts, Associate Justice.</p> <p>Instructions as to burden of proof under the pleadings. Stookesberry v. Swann, 22 S. W. 963; Laing v. Shirley, 61 S. W. 532; McCormick Harvesting Co. v. Doucette, 63 N. W. 95; Eobinson v. Love, 31 la. 11; Anderson v. Cuthbert, 30 S. E. 244; I. Greenleaf Ev., sec. 557; Strickland v. Cajutal City Mills, 49 S. E. 478.</p> <p>Insufficiency of the evidence. Puritan Co. v. Toti et al, 14 N. M. 432; Kitchen v. Schuster, 14 N M. 177; Ponnell v. Louisville Tob. Co., 113 Ky. 630; McConnell v. Plaza, etc., Co., 59 N T. S. 368; Kerr v. Lunsford, 31 W. Va., 659; 2 L. R. A. 668.</p>

<p>Appeal from the District Court of Chaves County, before William II. Pope, Chief Justice.</p> <p>Collateral promise within the statute of frauds. Benjamin on Contracts, 73; Beach on Contracts, 505; Cyc. vol. 20, p. 188; Davis v. Patrick, 141 U. S. 488; Bixby v. Church, 4,2 Pac. 613; Deegan v. Conzelmann, 31 Mr. 424-; Farmer’s etc. Bank v. Spear, 156 111. 555; 41 N. E. 164.</p> <p>An original promise must be supported by a valuable consideration.’ Benjamin on Contracts, 31; Beach on Contracts, sec. 4; ICingley v. Baleóme, 4 Barb. 131; Chandler v. Davidson, 6 Black! 367.</p> <p>The question of whether the promise is an original undertaking or collateral is a matter of fact to be found by a jury, or, by the Court, sitting as a jury, 29 Am. & Eng. Ency. Law, 2nd ed. p. 906, note 6; Calahan v. Ward, 26 Pac. 53; Burkhalter v. Farmer, 5 Kas. 477; Harris v. Frank, 81 Calif. 287; Wagner v. Hallack, 3 Colo. 186; Glenn v. Lelman, 54 Mo. 45; Sewer Pipe Co. v. Smith, 36 Mo. App. 620; Cowclin v. Gottgetreu, 55 N. Y. 650.</p> <p>Findings of fact by the Court sitting as a jury will not be disturbed if supported by substantial evidence. Richardson v. Pierce, 14 N. M. 334; Eagle Mining Co. v. Hamilton, 14 N. M. 271; Hancock v. Beasley, 14 N. M. 239; Candelaria v. Miera, 13 N. M. 360; Ortiz v. Bank, 12 N. Ml. 519; Marquez v. Land Grant Co., 12 N. M. 445; Carpenter v. Lindauer, 12 N. M. 388; Rush v. Fletcher, 11 N. M. 555; Romero v. Coleman, 11 N. M. 553; Gale & Farr v. Salis, 9 N. M. 211.</p> <p>A promise, although in form to pajr the debt of another, is not within the statute of frauds if the main purpose and object of the promiser is not to answer for another Emerson v. Slater, 22 How. 28; Storm v. United’States, 94 U. S.. 83; Davis v. Patrick, 141 U. S. 488; Fiske v. Raser, 34 Pac. 572; Gibson Co. v. Cincinnati Co., 12 L. R. A. 505; Cliicora Fert. Co. v. Duncan, 50 L. R. A. 405.; Rose v. Wallenberg, 39 L. R. A. 383; Gagen v. Stevens, -9 Pac 706; Ivenson v. Caldwell, 27 Pac. 563; Oldenberg v. Dorsejq 5 Am. & Eng. Ann. Cases, 841; Joseph v. Smith, 42 Am. St. 571; Smith v. Delanjr, 42 Am. St. 181; Silsby v. Frost, 17 Pac. 887; Calaban v. Ward, 26 Pac. 53; note 9 Am. & Eng. Ann. Cases, 895.</p> <p>On motion for rehearing.</p> <p>Not a collateral but an original promise. Emerson y. Slater, 22 How. 28; Davis v. Patrick, 141 H. S. 488.</p> <p>The person for whose benefit the promise is made must not be regarded by the plaintiff as a debtor. His position must be such that he could not he held liable were an action brought against him for the debt. Price v. Chicago, etc., P. Co., 40 Mo. App. 189; Buckmyr v. Darnell, 2 L. D. Eaym. 1085; 1 Salk. 27; Walker v. Irwin, 9 la. 448.</p> <p>It is conceded that the rule of law,announced in Emerson v. Slater supra, is a well recognized exception to the provision of the 4th sec. of stat. 29, chap, 11. Small v. Schaefer, 24 Md. 143; Clay v. Walton, 9 Cal. 329; Nelson v. Boynton, 3 Metcalf 396; Alger v. Scoville, 1 Gray 391; Lemon v. Box, 20 Tex. 329; Doyle v. White, 26 Me. 341; Morrisey v. Kinzie, 19 N. W. 454; Clapp v. Webb, 52 Wis. 638; Bailey v. Marshall, 174 Pa. St. 602.</p> <p>STATEMENT OP PACTS.</p> <p>This is an action of assumpsit, instituted in the court below by the appellee, to recover from appellant the sum of $1,000.00. The material facts, alleged in the amended complaint, and established' by the evidence are substantially as follows:</p> <p>Appellee was the owner of a well drilling outfit, which he was desirous of selling; Fox & Disnejr were well drillers, hut did not own a well drilling outfit; they had no money or credit, with which to purchase such machinery. Appellant was the owner of considerable land, within the artesian belt, in the Pecos Yalley. Fox & Disney had drilled one well for him and he was anxious to have another well drilled on his farm, so that he could reduce more land to cultivation; he did not have the cash to pay down for the drilling of a well, and proposed to Fox & Disney that he would let them drill the second well for him if they could carry his note for $1,000.00 for a year, at 10 per cent interest, or if they would procure other parties, who would carry said note. Fox approached appellee with a proposition to purchase his well drilling machinery. Appellee offered to sell to Fox & Disney for $500.00 cash and balance on deferred payments. Fox told him of the proposition made by appellant, and asked if he would accept appellant’s note for $1,000.00 due in one year, as a first payment on the machinery. Appellee agreed to do so, provided appellant would promise him to execute said note. Appellee and Fox then went to appellant, and appellant agreed with appellee, that if he would sell his well drilling machinery to Fox & Disney, that he would contract with them to drill a well for him, and that he would execute to appellee liis note for $1,000.00 bearing 10 per cent interest, payable one year after date, as soon as the well had been sunk to a depth of 1,000 feet. Thereupon appellee sold the well drilling machinery to Fox & Disney for $2,500.00 and they executed to him a promissory note and chattel mortgage to secure same; Fox & Disney then entered into a written contract with appellant Dice, to drill the well for him, and proceeded to and did drill the same to a .depth of more than 1,000 feet. When the well was drilled to a depth of 1,000 feet appellee demanded of appellant that he execute his note for $1,000.00 according to the agreement, which appellant refused to do, assigning as the reason therefor, that he had already paid Fox & Disney more than the contract price for the drilling of the well. From the testimony it appears that Fox & Disney did not have the money to pay the current expense of operating the machinery, buying coal, etc., and Dice had advanced the money therefor. Owing to the fact that it required much longer to drill the well than had been anticipated, the expense amounted to more than the contract price and there was no surplus remaining. It appears that Dice expected, at the time he made the agreement with appellee, that there would be a surplus of more than $1,500.00 remaining above the expense, when the well was completed, but he made no reservation and imposed no conditions upon the promise made to appellee, save that the note was not to be executed until the well had been drilled to the depth of 1,000 feet. The defense relied upon was that the promise was to answer for the debt of Fox & Disney, and was not in writing, signed by Bice, and therefore could not'be enforced. The cause was tried by the court, a jury having been waived, and the issues were formed for the plaintiff, and judgment .was rendered against the appellant for $1,000.00 and costs, from which judgment this appeal is prosecuted.</p>

Leai-iy, The office of probate clerk and the office of clerk of the district court were abolished by State 'Constitution. State Constitution, Art. 6, sec. 22; Sec. 746, Comp. Laws 1897; Chap. 60, sec. 4, laws 1905; Driscoll v. Jones, 44 N. W. 726.

Charles W. G. Ward, was and is the district attorney of the Fourth Judicial District of the State of New Mexico.

<p>SYLLABUS (BY THE COURT).</p> <p>1. A divorce decree awarding the wife a certain sum of money as her share in the community property created a presumption that the husband was possessed of sufficient money and property to pay the amount, and the husband, ■upon being charged with contempt of court, had the burden of pleading and proving his inability to pay the amount, if he desired to defend on such ground.</p> <p>2. Where an order was issued in divorce proceedings restraining the husband from removing the community estate from the jurisdiction, and the wife was awarded a certain sum of money as her share of the estate, and the husband' failed to pay such sum, his act in removing the community estate from the jurisdiction in violation of the restraining; order was clearly a contempt of court.</p> <p>3. A contempt judgment committing the husband to prison for a definite term for violating a restraining order issued in divorce proceedings was not an attempt to enforce collection of a debt by means of imprisonment under contempt, process, though it provided for the husband’s benefit that he could be released upon payment of the sum awarded to-his wife by the divorce decree.</p> <p>4. A contempt judgment committing one "for a definite-term “or until further order of the court” was not void for uncertainty; the quoted words being employed merely to-retain in the court the power to terminate the imprisonment, before its expiration upon satisfactory cause shown.</p> <p>5. An appearance and answer in contempt proceedings, without objection was a waiver of service of the order to-show cause.</p> <p>6. Where the husband in his answer in contempt proceedings for violation of a restraining order issued in a divorce action claimed that he was unable to pay the amount awarded his wife by the divorce decree, he could not relieve himself from the charge of contempt by a claim that no demand had been made upon him for payment of the amount of the-decree; no demand being necessary, since his plea showed that it would have been unavailing and the omission of a demand, even if demand were required, being merely an; error or irregularity, and not jurisdictional.</p> <p>7. A writ of habeas corpus is available only when the lower court has exceeded its jurisdiction ,and cannot take the place of a writ of error or an appeal, however irregular- or erroneous the judgment may be.</p>

Roberts, Associate Justice. No error committed by the lower court in its instructions 5, 10, 12 and 13. 1 Bishop’s New Criminal Law, See. 639; U. S. v. 18, Barrels, etc., 8 Blatehf. 478; 2 Wig-more on Evidence, sec. 952. Error in giving instructions 10 and 12. 2 Wigmore on. Evidence, sec. 952; Atherton v. Defreeze, 129 Mich. 364.

Tlie courts and text writers universally hold that the-•appointment of a receiver is a drastic remedy to be exer■cised only as a last resort. Eawnsley v. Ins. Co., 9 N. JEq. 95; Edison v. Phonograph Co., 29 At]. 195; 34 Cye. 21, 23, 76, 79, 80, 90; High on Beceivers, 289-292; Thompson on Corporations, 6346.

Roberts, Associate Justice. It is necessary to specifically allege in apt and definite language tliat the mortal wounds given should be .alleged with felonious intent and malice aforethought. Schaffer v. State, 3 Am. St. Eep. 274; State v. Green, 20 S. W. 304; 3 Ohitty Grim. Law, pp. 750-752; 1.'Wharton Prec. Ind. p. 117. Motion to direct verdict upon the grounds of variance should have been sustained.

The court erred in accepting tlie following verdict and refusing to discharge the defendants: “We, the jury,. find the defendants guilty of manslaughter, 3 .degree.” Bishop Crim. Proc., sec. 1005; State v. Stephanus et al., 99 Pac. 428; State v. Belli, 76 N. C. 10; Com. v. Haskins, 128 Mass. 60; People v. Bush, 3 Park. Crim. Kep. 552; Grant v. State, 23 L. E. A. 723; Burton v. Bondies, 2 Tex. 204; Bishop’s New Crim.

Mr. Justice Parker, having passed upon one feature of the case in the court below, presented here by cross appeal, did not participate, and the canse was heard before Roberts, C. J., Hanna, J., and Raynolds, District Judge. Findings not sufficient to support the judgment. George on Partnership, p. 92. Mining partnerships are non-trading partnerships. 22 Am. & Eng. Ene.

<p>On motion to strike out certificate of the District Clerk as to costs.</p>

Discussion as to whether the water in question in this -cause was a natural water course or surface water. 31 Cye. 203; C. E. I. & P. E. E. Co. v. Groves, Okla. 761; Wharton v. Stevens, 15 L. E. A. 633; Eibordy v. Murry, 177 111. 134; Mo. Pac. E. Co. v. Wren, 62 Pac. 7; Earl v. De Hart, 72 Am.

- The deed from Keinhart to Smith, the notes executed for the deferred payments and the deed of trust executed at the same time as part of the same transaction, are to-be construed together, in… Held: which delivery thereof was made in pursuance to agreement and contract on the part of said Reinhart to deliver such ■exclusive possession as a part of said transaction of attempted conveyance thereof, and for which said notes were executed as aforesaid.

Service was illegal and the court acquired no jurisdiction over the defendant by reason thereof. Chap. 48, sec. 4, laws 1909; New River Mineral Co. v. Seeley, 120 Fed,. 202; Insurance Co. v. Bangs, 103 IJ. S. 435; Staunton Perpetual B. & L. Co. v. Haden, 92 Ya. 201; Settlemier v. Sullivan, 97 H. S. 444; Godfrey v. Yalentine, 12 Am.

Writ of Error to Union County. The injunction should have b,een dissolved at the first hearing for the reasons set out in the motion to dissolve, and which is the first error assigned, because the petition was wholly insufficient to give the court jurisdiction to issue the temporary writ, and because the judge issuing the temporary writ had no jurisdiction of the subject matter or of the parties to the action at the time the order was made, and the jurisdiction of the court…

Complaint states a cause of action. Sub-sec. 274, a,rt. 16, Laws 1907; Ely v. N. M. & Arizpna E. E. Co., 129 IT. S.' 32. If the complaint states a cause of action the court was without jurisdiction to. set the final decree aside and vacate the same. 16 Cyc. 50.5; 5 Enc. PI. & Pr. 1049; TJ. S. v. Qwyn, 4 N. M. 635; Phillips v- Negley, 117 IT. S. .665; Ex parte Sibald v. TJ. S., 12 Peters 488; Grames v. Hawley, 50 Eed. 319; Bronson v. Schulten, 104 IJ.

Tlie game of baseball is not such a game as is contemplated by the statute, even if the court might hold that the disturbing element was not necessary. State v. Prather, 100 Pac. 57. The doctrine of ejusdem generis. St. Louis Agr. & Mech. Assn. v. Delano, 108 Mo. 217; Howell v. Stewart, 54 Mo. 4Ó0; Fuse v. Spaunhaxst, 67 Mo. 256; State v. Bryan, 9Ó Mo. 534; St. Louis v. Laughlin, 49 Mo. 559; ex parte Neet, 157 Mo. 527; People v. Deenan, 3 N. Y. Crim.

Enos R. Hart was charged with having violated sec. 1368 C. L. 1897, commonly known as the “Sunday Law,” A jury was waived and the cause submitted to the court for determination upon the same statement of facts set forth in the case of Territory v. Thos. M. Davenport, case No. 1464, decided at the present term of this court. The court found the defendant guilty, from which judgment this appeal is prosecuted.

The writing must be taken to contain the real contract until the contrary is established by the clearest and most satisfactory evidence, and a mere preponderance of evidence will not suffice. Lake v. Meacham, 13 Wis. 355, 382; McClellan v. Sanford, 26 Wis. 595, 607; Blake Opera House Co. v. Home Ins.

<p>SYLLABUS (BY THE COURT).</p> <p>1. Where the record on writ of error fails to. contain the writ of error, no jurisdiction exists in this court to entertain the proceeding; and it will be dismissed.</p> <p>2. Where plaintiff filed his motion for leave to file assigninents of error, before tbe defendant moved for tbe dismissal of tbe cause for failure to file assignments of error, tbe record is clear for tbe granting of plaintiff’s motion to cure bis default by filing assignments of error.</p>

. On motion to dismiss writ of error and affirm the decree of the district court. Chap. 57,- sec, 21, laws -1907; chap. 120, sec. 2, laws 1909; chap. 57, sec. 36, laws 1907; 6 Cyc. 887; Martin v. Terry, 6 N. M. 491; Sacramento Valley v. Lee, 15 N. ML 567. As to the liability of stockholders. Austin v. Tecumseli Natl. Bank, 49 Neb. 412; The West St. Louis Savings Bank v. Geo. E. Parmalee et al., 95 D. S. 490.

<p>Section 1117, compiled laws, construed. Armijo v. Armijo, 4 N. M. 57; Douglass v. Lewis, 3 N. M. 596; Hey v. Com., 32 Gratt. 946; 34 Cyc. 515; 10 Ency. of Ev. 665-6; Clark & M. Law of Crimes (2nd ed.) sec. 280; 24 Encyc. of L. (2nd ed.) 45, par. Ill; id. 46, par. 2; id. 47, par. 3; id. 48, par. 4.</p> <p>Some of the courts in specifying the elements of the offense combine the second and third stated above in one, and thus enumerate but three. Aldrich v. People, 101; People v. Tilley, 135 Cal. 61.</p> <p>There seems to be no discord among the authorities as to the first element of the offense stated above — all supporting it without an exception as far as ascertained. Kirby v. U. S., 174 IT. S. 47; Com. v. Elisha, 3 Gray 460 ; Aldrich v. People, 101 111. 16; Williams v. People, 101 111. 382; People v. Hartwell, 55 N E. 929; Foster v. State, 38 Fla. 3; O’Connell v. State, 55 Ga. 296; H. S. v. Montgomery, 3 Sawy. 544; Curran v. State, 76 Pac. 577; People v. Tilley, 67 Pac. 42; Queen v. Wiley, 2 Den. C. C. 37; Com. v. Light, 10 Pa. Supr. Ct. 66.</p> <p>As to guilty knowledge of the larceny. Wright v. State,. 5 Yeager, 154; State v. Pray, 94 Pac. 218; People v. Levi-son, 16 Cal. 98; May v. People, 60 111. 120; Anderson v. People, 60 111. 345; State v. Caveness, 78 N C. 481.</p> <p>As to the malo animo or dishonest intent with which the1 property was received. Leonardo v. Territory, 1 N M. 291; Eice v. State, 50 Tenn. 215; State v. Pardee, 37 Ohio-St. 63; Arda v. State, 26 Tex. App. 193; H. S. v. Lowenstein, 21 D. C. 515; People v. Johnson, 1 Park. Or. E. 564; State v. Hodges, 55 Md. 127.</p> <p>There is no evidence to support the verdict of the jury. Secs. 22 and 25, laws of 1907, p. Ill; Weber v. Kirkundall, 44 Neb. 766; Ehorer v. Brockhage, 15 Mo. Ap. 16; Nave v. Nave, 12 Ind. 1; State v. Tominson, 11 la. 401; Bed-ford v. State, 5 Hump. 552; Dains v. State, 2 Hump. 442;. State v. Jones, 12 Mo. Ap. 93; Anderson v. State, 43 Conn. 514; Falk v. People, 42 111. 331; U. S. v. Briggs, 19 D. C. 585; People v. Knutte, 111 Cal. 453; Eeynolds v. Staab, 4 N. M. 606; Euiz v. Territory, 10 N. M. 132; Faulkner v. Territory, 6 N. M. 464; Baca v. Fulton, 3 N. M. 352; Territory v. Webb, 2 N. M. 147; Eomero v. Gonzales, 3 N. M-. 5; Prior v. Eio Grande Irr. etc., 10 N. M. 711; Waldo v. Beckwith, 1 N. M. 97; Stamm et al. v. Albuquerque, 10 N. M. 491.</p> <p>Ordinarily neither the verdict of a jury nor the findings of fact by a trial court will be disturbed in this court when they are supported by any substantial evidence. Candelaria v. Miera, 13 N. M. 361; Perea v. Barela, 6 N. M.. 239; Territory v. West, 14 N. M. 546; Territory v. Neatherlin, 13 N. M. 491; Territory v. Sias; Ortiz v. Bank, 12 N. M. 519; Territory v. Edie, 7 N. M. 183; Territory v. Gonzales, 11 N. M1. 301; Robinson v. Palatine Ins. Go., 11 N. M. 162; Archibeque v. Miera, 1 N. M. 160; Lynch v. Grayson, 7 N. M. 26; Badean v. Baca, 2 N. M. 194; State v. Spidler, 44 Kas. 493; State v. Poster, 26 Mont. 71; State v. Welch, 22 Mont. 92; State v. Pennick, 90 Pac. 927; Irwin v. Thompson, 27 Kas. 643; How v. Lincoln, 23 Kas. 468; Ermnl v. Kullock, 3 Kas. 499; Johnson v. Burns, 27 Kas. 5; Wachsmith v. Heil, 1 Colo. App. 196; Fidelity Inv. Co. v. Carico, 1 Colo. App. 292; A. T. & S. F. By. Co. v. Wagner, 33 Kas. 660.</p> <p>Before testimony of recent possession of stolen property can be considered against the receiver, there must be testimony tending to prove that some person other than the receiver previously stole said property. O’Connell v. State, 55 Ga. 296; State v. Pray, 94 Pac. 218.</p> <p>The verdict was contrary to the law of the case. Swartout v. Willingham, 31 Abb. N. Cas. 66; State v. Bulla, 89 Mo. 595; Trail v. State, 57 S. W. 92; Sisk v. State, 42 S. W. 985.</p> <p>Testimony tending to prove that the defendant committed another though similar crime, is not admissible as tending to prove that he is guilty of the crime for which he is on trial, unless testimony is given tending to show that the two offenses are involved in and are parts of one and the same transaction. State v. Myers, 82 Mo. 553; Regina v. Oddy, 5 Coxe’s S. C. 219; Shaffner v. Comm. 72 Penn. St. 60; People v. Corbin, 56 N. Y. 363; Coleman v. People, 55 N. Y. 90; State v. Benton, 15 N. H. 174; State v. Lepage, 57 N. H. 245.</p> <p>Motion for new trial should have been sustained. H. S. v. DeAmador, 6 N. M. 173; Territory v. Barrett, 8 N. M. 70.</p> <p>The supreme court in appeals or writs of error shall examine the record. Chap. 16, sec. 38, laws 1907; Kearny’s Code, 1846, sec. 14, “Courts and Judicial Powers”; Chaves v. McKnight, 1 N. M. 147.</p> <p>The only question in this case is whether, the trial court after hearing and considering all the evidence, erred in not withdrawing the case from the jury and instructing it to find appellant not guilty, or after verdict and after •careful consideration of all the facts and law of the case, in not granting the motion for a new trial. Territory v. West, 14 N. M. 546; IT. S. v. Sena, lo N. M. 202.</p> <p>STATEMENT OP PACTS.</p> <p>Appellant, Bichard' C. Graves, was indicted at the May ■term, 1911, of the District Court of Chaves County, for the larceny of a cow and for feloniously receiving and aiding in the concealment of said coy, knowing the same to have been stolen. The indictment is in two counts, the first charging larceny, and the second charging receiving ■and aiding in concealment.'</p> <p>Appellant was arraigned May 8, 1911, and pleaded generally to the indictment “not guilty.” Trial was had at the then May term and the jury returned a verdict of “guilty as charged” in the second count of the indictment. The court overruled motions for a new trial and in arrest •of judgment, and rendered judgment upon the .verdict, •and defendant prajred this appeal.</p> <p>The record discloses that the cow, in question, was missed by the owner on January 10, 1911, who tracked her until he lost the trail. It was shown that the cow was seen, with other cattle, for several days at a place known as the Berrendo farm; that one of the prosecuting witnesses asked appellant if he knew of anyone who had lost the cow, and that appellant replied that she belonged to the section foreman, that he would get the cow and send the -owner word or take her to him. It does not appear that the appellant got the cow, but two or three daj^s later, this witness testified, the cow disappeared and several da3rs later the owner brought the cow back b3r the place. The ■owner testified that he recovrered the cow about March 5. 1911; that he found her in appellant’s pasture.</p>

Appellant has established its title to the land in controversy against all of the appellees. Elkins et al. v. Arce et al., No. 632 in the District Court, County of Mora. ‘Territory of New Mexico. Under the laws of New Mexico a partition proceeding is a proceeding in rem and anyone claiming any interest in the land involved, at any time before final decree, may intervene and set up their rights.

<p>Appeal from Mora County.</p> <p>Defense of adverse possession. EEunnicutt v. Peyton, 102 U. S. 333; Mtmtoya v. Unknown heirs, 120 Pac. 626.</p> <p>Agreement of 1884. Daley v. Bernstein, 6 N. M. 380; Wiseman v. Northern Pacific Ry. Co., 26 Pac. 272; Georgia Pac. Ry. Co. v. Strickland, 6 S. E. 27; Seitz v. Brew•ers Refrigerator Co., 141 U. S. 510.</p>

It is a well-settled principle of equity that where a party has been prevented in a former action wherein he was defendant from making his defense by the fraudulent acts of the plaintiff in such former suit and judgment was rendered against defendant therein, if the defendant had a meritorious defense in said cause an injunction will lie to restrain the enforcement of the former judgment. High on Injunctions, secs. 175 and 190 to 200; 16 Am. & Eng. Ene.

<p>Appeal from the District Court of Santa Fe County.</p>

<p>SYLLABUS (BY THE COURT).</p> <p>1. A proceeding by information in the nature of quo warranto to try title to a public office is not a proceeding against the officer as such, but is confined in its scope to an inquiry as to whether the person is lawfully holding the office.</p> <p>2. Under the provisions of sec. 15 of art. 6 of the constitution, the Chief Justice of this Court has power to designate any District Judge in the State to bold. Court in any district whenever the public business may require, whether the requirement arises out of an undue accumulation of business, or by reason of the disqualification of the District Judge to sit in any one or more cases.</p> <p>3. Tbe provision of tbe section for trials before a member of tbe bar as Judge pro tempore is permissive merely, and does not control tbe other provisions of tbe section.</p>

Pope, Chief Justice. Whether a party misrepresenting a fact knew it to be-false, or made an assertion without knowing whether it was false or true, is wholly immaterial in a suit to rescind or set aside a contract. Smith v. Richards, 13 Pet. 26; M'’ Ferran v. Taylor, 3 Cranch, 270; Bullitt v. Farrar, 421 Minn. 8; Gerner v. Mosher, 58 Neb. 135; 14 A. & E. Enc. p. 96. An agency is created, either by express terms or by implication, or ratification.

Mandamus. STATEMENT OP PACTS. The relator made a contract with H. D. Schuyler for the sale of certain real estate, the consideration being the transfer of a certificate of stock, which, it is alleged, Schuyler represented to be of the value of $1,500 and the assumption of a mortgage. Relator avers that the stock was not owned -by Schuyler and that the representations made in regard to-the value of the shares were false and-fraudulent.

Tlie petition of appellants, praying for an allowance out of1 the common fund in the hands of the court to W. A. Buddecke, for his costs and expenses and attorney’s and counsellor’s fees, incurred in prosecuting for and on behalf of the Las Vegas Bailwajr and Power Co., the proceedings to set aside the first sale should have been granted and an examiner appointed, as’prayed for, and the allowance made. Hubbard v. Camperdown Mills, 1 S. E. Bep. 5; Bound v. South Carolina By.

The motion to dismiss appeal should be dismissed for the reason that the movant is not a party to this proceeding. Territory v. Valdez, 1 N. M. 533; In re Watts, 1 N. M. 541; Koury v. Castillo, 13 N. M. 26; In re Craigie, 24 Mont. 37; In re Bedell, 97 Cal. 623; In ré Donvan, 104 Cal. 623; Strong v. Dignan, 207'111. 385; Erwin v. Lowry, 48 H. S. 172; O’Hara v. McConnell, 93 H. S. 150.

<p>Mandamus.</p> <p>In the matter of revenue law, 14 Fla. 285; Clark v. State, 58 So. 683; E. E. Co. v. Eeed, 124 Ala. 255; People v. Nellis, 249 111. 12; People v. Jo}rce, 246 111. 127; Comm. v. Wilcox, 111 Ya. 855; State v. Eoss, 38 Mont. 319; Commonwealth v. Gregg, 161 Pa. 586.</p> <p>Appropriations for buildings at State educational institutions can properly be included in a general appropriation bill. Guthrie Bank v. Guthrie, 173 H. S. 533 ; Coles v. Goehring, 209 111. 142.</p> <p>Appropriations for buildings are for necessary expenses. M’Culloch v. Maryland, 4 Wheat. 324; Talbot v. Hudson, 16 Gary, 417; People v. Smith, 21 N. Y. 595; Coster v. Tidewater Co., 18 N. J. Eq. 55; Yarick v. Smith, 5 Paige, 137.</p> <p>STATEMENT OP PACTS.</p> <p>This is an original proceeding in mandamus, instituted in this court, by virtue of the jurisdiction conferred upon .this court by section 3 of article TV of the constitution, which invests this court with original jurisdiction in quo warranto and mandamus against all state officers, etc. The information alleges that the relator is, and -has been since the institution of the state government, the secretary of state; that his salary is fixed by the constitution of the state; that the legislature of the state, at its first session, passed an act making appropriations for the expenses of the state government, which became law on the 14th day of June, 1912; and that by section 22 of said act there were appropriated various sums of money for the payment of the deficiencies in the revenue of the 61st, 62nd and 63rd fiscal years of the territory of New Mexico, and among such appropriations there was appropriated the sum of $2,625.'00 for the salary of relator from the time of the organization of the state government to the end of the current fiscal year, which was the 63rd fiscal year above mentioned. The information then sets out the appropriations made by the next succeeding section of said act for certain educational institutions, and recites-that, for the purposes of providing funds for the payment of the appropriations made by said sections 22 and 23, it was enacted that there should be issued certificates of indebtedness of the state of New Mexico. The form, amount and rate of interest of said certificates are set forth, and other facts not necessary to be shown here. The relator then alleges that the respondent is the state treasurer; that he has failed and neglected to execute the certificates and issue them, as required by the act, and prays for the issuance of a writ of mandamus, commanding and directing said treasurer to execute, sign and issue said certificates of indebtedness to the amount of $200,000.00, that being the amount alleged to be necessary, under the provisions of said act.</p> <p>The respondent voluntarily appeared and filed an answer, wherein he admitted the truth of all the allegations of fact contained in the information and set forth the following reasons for his failure to comply with the act, viz :</p> <p>“1. The provision and direction contained in section 24 of the general appropriation bill, which became a law ■on June 14th, 1912, for the issuance of certificates of indebtedness is invalid because the constitution of the state provides that general appropriation bills shall embrace nothing but the appropriations for the expenses of the •executive, legislative and judiciary departments, interest, sinking fund, payments on the public debt, public schools, •and other expenses required by existing laws.</p> <p>“2. The appropriations contained in section 23 of said general appropriation bill, for the purpose of paying for the construction of buildings at three of the state educational institutions are not such appropriations as can be .included in a general appropriation bill, as in the last preceding paragraph specified.</p> <p>“3. The only authority for the issuance of said certificates is to be found in section 7 of article IN of the •Constitution of the State, which provides that the State may borrow money not exceeding two hundred thousand dollars ($200,000.00)’ in the aggregate to meet casual ■deficits or failure in revenue or for necessary expenses, and this onty refers to the revenue and expenses of the State of New Mexico while the appropriations made in .Sections 22 and 23 of said general appropriation bill arc in part to meet deficits or failure in revenue and for necessary expenses of the Territory of New Mexico.</p> <p>“4. Manjr of the items embraced in said section 22 of said general appropriation bill are for. salaries and expenses during the current fiscal year which ends on November 30th, 1912, and as these expenses are not yet wholly incurred, they are not of such a nature as can be provided for by borrowing money under the authority of said Section 7 of Article IX of the Constitution.</p> <p>“5. The payment for the rebuilding of Lea Hall, an ■academic school building situated on the grounds of the New Mexico Military Institute, which is provided’for in said section 23 of said general appropriation bill, is not ■a necessary expense within the meaning of said section 7 of article IX of the Constitution, nor is it an expense required by existing laws as provided in section 16 of article IV of the Constitution concerning what may be included in -general appropriation bills..</p> <p>“6. The construction of a fire-proof building, in place of the old administration building destroyed by fire, to be expended under the direction of the Regents of the New Mexico College of Agriculture and Mechanic Arts, which is provided for in said section 23, is not a necessary expense within the meaning of said section 7 of article-IX of the Constitution, nor is it an expense required by existing laws as provided for in section 16 of article IV of1 the Constitution concerning what may be included in general appropriation bills.</p> <p>“7. The construction of a dormitory for the Institute of the Blind at Alamogordo, which is provided for in said section 23, is not a necessary expense within the-meaning of the said section 7 of article IX of the Constitution, nor is it an expense required by existing laws, as provided in section 16 of article IV of the Constitution concerning what may be included in general 'appropriation bills. .</p> <p>“8. The necessary expenses intended by section 7 of article IX of the Constitution are the ordinary current expenses of the State such as salaries, supplies, etc., and do not include such matters as the construction of buildings for the use of said institutions.”</p> <p>The able attorney general prepared and filed the answer for the respondent, but in his brief filed in the causé, after asking careful consideration of the reasons set forth by the respondent for his failure to issue the certificates of indebtedness, he presents his views .of the case, which arc entirely adverse to the contentions set forth in the answer. It should be further stated by the court that the State-treasurer is not opposed to the issuance and sale .of the certificates mentioned, but has failed to issue them because of objections raised to their validity, and he deemed it advisable to have the question of their legality determined in advance of sale. No brief, opposing the legality of the bonds, was filed, until the court, being desirous of a full presentation of the matter, requested Hon. Edward R. Wright to prepare a brief and argue the cairse orally, presenting to the court such authority and reasoning as could be advanced against the legality of the certificates. Thf. he most graciously consented to do, and the court desires to express to him its appreciation of his efforts, and to thank him for the assistance and benefit rendered the court, by his able presentation of the questions involved.</p>

Where a water company was required by statute to furnish water at reasonable rates to the inhabitants for family use and to the municipality for fires and other great necessities free, the court held that the words “famity use” applied to the schools, infirmaries and penal institutions, and .that the municipality was liable for such water to the same extent as individuals. Spring Yalley Water Works v. -San Francisco, 52 Cal. Ill; Cromwell v. County of Sac, 94 U. S. 351; So.

Evidence offered and received to show that the company agreed to insure a mortgage interest was incompetent. Woodbury Savings Bank v. Charter Oak Ins. Co., 29 Conn. 374; 1 Greenl. Ev. par. 277; Finney v. Bedford Commercial Ins. Co., 41 Am. Dee. 515; Murray v. Columbia Ins. Co., 11 Johns. 302; Turner v. Burrows, 5 Wend. 541; Finney v. Warren Ins. Co., 1 Metcl. 18; Fuller and others v. Phoenix Ins. Co., 16 N W. 273; Peoria Ins. Co. v. Hall, 12 Mich. 202; Northern Assur.

<p>SYLLABUS (BY THE COURT).</p> <p>1. See. 2, chap. 120, S. L. 1909 only authorizes an extension oí time within which to file a complete transcript, and under this section no authority exists for extending the time for “settling and signing the bills of exceptions.”</p> <p>2. Sec. 4, chap. 120, S. L. 1909, authorizes the trial judge, or in his absence from the state, any other district judge, to grant an extension of time, to settle and sign the bills of exceptions, but application for such extension of time must be made at least ten days prior to the return day.</p> <p>3. Upon motion of appellees, accompanied by a skeleton transcript of the record, as required by sec. 21, chap. 57, S. L. 1907, the judgment of the lower court was affirmed. Thereafter appellants filed a motion to set aside the order of affirmance, based upon an extension of time granted him by the district judge, within which to “complete the bill of exceptions and transcript of record.” Prior to the decision upon the question appellants permitted the additional time granted them to expire, and failing to file, or tender for filing, the complete transcript, appellees filed a new skelton transcript and moved again for an affirmance. Held: that as appellants have permitted the time to elapse, under the extension granted, that it would avail them nothing, should the court set aside the order of affirmance, as the court would be required to immediately reaffirm the case. Therefore the motion is denied, without determining the effect of the order signed by the district judge.</p> <p>4. Courts will not make a useless order or grant a party unavailing relief.</p>

. Sub-sec. 17, sec. 2685, C. L. 1897; chap. 107, par. 13, laws 1907. Rule of construction, of the statute on replevin in New Mexico. Martinez v. Martinez, 2 N. M. 469; 24 Am. & Eng. Enc. L., p. 478, note 4; Peoples Sav. Bank, etc., v. Bachelder, etc., 51 Fed. 130; Cobbey on Replevin (2nd ed.) sec. 13; Appelwhite v. Allen, 8 Humph. 698; Hellings v. Wright, 2 Har. 374. The court had jurisdiction both of the subject matter and of the parties. 17 Am. & Eng. Enc.

<p>SYLLABUS (BY THE COURT).</p> <p>1. Under sec. 24, ebap. 57, S. L. 1907, where cases are tiled: without a jury, the certificate oí the official stenographer is not alone sufficient to make the transcript of the testimony an element in the review of the case. Such transcript must, in addition, be properly certified as correct by the trial judge.</p> <p>2. The alleged grounds of error, being based upon errors occurring at the trial and conclusions drawn therefrom, and the evidence not being in the record, no question for review is presented.</p>

The only person eligible to appointment as administrator of a partnership estate is the general administrator o£' a deceased partner, or the surviving partner or partners.

<p>Appealed irom the District Court of Taos Count]'■</p>

The mere fact that out of an abundance of caution a party takes both methods of getting his case heard is in no wise an election nor does it put him to an election. Pullman Palace Oar Co. v. Central Trans: Co. 171 U. S. 138; Huret v. Hollingsworth, 94 H. S. Ill; Fowler v. Continental Casualty Co., 124 Pac. 479; Baca v. Anaya, 14 N. M. 20.

The burden of proof is on the plaintiff to establish that he himself has a perfect legal or equitable title without reference to whether defendants’ title he valid or invalid. 32 Cyc. 1369. The presumption is that the property was community property, for there was no evidence offered by the plaintiff to show to the contrary. 8 L. R. A. 732; 32 Ovc. 1331; 21 Cyc. 1652. ' Plaintiff did not show ten years continuous adverse possession.

The conviction for contempt for failure to produce the child, Rosemary, was void. Brown v. Moore, 61 Cal. 433; State ex rel.

<p>Habeas corpus.</p>

The court erred in admitting the evidence of the prosecuting witness as to the occurrences and conversations between her and defendant, Telesfor Gallegos. Stephen’s Dig. Ev. art. 2; 1 Greenleaf, secs. 51 and 52; 1 Wharton on Crim. Ev., pp. 41 to 44; 7 Am. Crim. Rep. 84; 15 Am. Crim. Rep. 497; 13 Am. Crim. Rep. 300, 312; 7 id. 58, 60; 7 id. 171, 174.

Hill Bros, had neither possession nor title to the sheep when they executed the mortgage to plaintiff. The Elgee Cotton Cases, 22 Wall. 180; 24 A. & E. E. of L. 1045-7. Plaintiff’s mortgage does not cover, nor purport to cover, the sheep as after acquired property. Jones on Chattel Mortgages, sec. 173-A; Cobbey on Chattel Mortgages; Montgomery v. Chase, 14 N. W. 586; Phillips v. Both, 12 N. W. 481; Pennock v. Coe, 64 E. S. 117; New England Natl. Bank v. Northwestern Natl.

J. Leahy, D. J. The judgment must be predicated upon the ground that a defectively acknowledged chattel mortgage is superior to the lien of an attaching creditor without actual notice. Secs. 2361, 3949, C. L. 1897; sec. 1, chap. 14, laws of 1907; Green v. Van Briskirk, 7 Wall. 150; Cobbey on Chattel Mortgages, sec. 475. The chattel mortgage in question here is fatally defective.

The law-making power of this state has always carefully guarded the interests of the water user for irrigation purposes and placed that above all other uses. Chap. 1, sec. 1, C. L. 1897; chap. 1, sec. 5, C. L. 1897; chap. 1, sec. 2-1, O. L. 1897; chap. 44, sec. 3, laws of 1903; chap. 49, sec. 44, laws of 1907. The city of Albuquerque has no power to condemn property. State v. City of Newark, 23 Atl. 129; 15 Cyc. 567; Ligare v. Chicago, 28 N. E. 934.

<p>Appeal from the District Court of Dona Ana County.</p> <p>Tlie probate judge has power to grant letters testamentary and of administration. Sec. 1935, C. L. 1897; Mumford v. Hull, 25 Minn. 347; Scott v. Monks, 14 Atl. 860; Sheldon v. Smith, 97 Mass. 34; Small v. Commonwealth, 8 Pa. St. 101; Fulcher v. Commonwealth, 26 ICy. 592; Moore, et al. v. Waller, 1 Marshall 488; Barbour, etc. v. Eobertso.n’s Heirs, 1 Littell, 95.</p> <p>Powers of selling real estate by executors or administrators. Secs. 2065-6, C. L. 1897; Coy v. Gage, et al., 84 S. W. 441; Bray v. Neill’s Executors, 21 N. J. Eq. 343.</p> <p>If power of sale existed at all, it must be a public sale. Secs. 1960 and 2063, C. L. 1897; 28 N. E. 305; Words & Phrases, vol. 3, 4421; id. p. 4440; Banton v. Griswold, 50 Atl. 89; 95 Me. 445.</p> <p>A¥hen a sale of real estate is required by law to be a public sale, a private sale is void and passes no title. Freeman on Void Judicial Sales, (4th ed.) sec. 32; Hutchinson v. Cassidy, 46 Mo. 431; Ellet v. Paxson, 2 W. & S. 418; Frambo v. Gantt, 12 Ala. 298; Wier v. Davis, 4 Ala. 442; McArthur v. Carrie, 32 Ala. 275; Gaines v. De La. Croix, 6 Wall. 719; Neal v. Patterson, 40 Ga. 363; Ashurst v. Ashurst, 15 Ala. 781; Worten v. Howard, 2 S. & M. 527; Ventress v. Smith, 10 Peters, 161.</p> <p>Administrator’s bond. Secs. 1944 and 2064, C. L~ 1897; 1 Woerner Am. Law Administration; 18 Cyc. 82; McClure v. Colclough, 5 Ala. 65; 2nd ed. Woerner Am. Law. Admr. 719, sec. 339; Judge of Probate v. Claggett, 36 N. H. 381; Casoni v. Jerome, 58 N. Y. 315; Peebles v. Watts, Admr., 9 Dana 102; 11 A. & E. Ency. of L. 871; Mobberly v. Johnson, 78 ¿y. 273; A. & E. Enc. of L., 868; id. 1055; id. 1157; 33 Am. Dec. 531; Hartzell v. Com., 42 Pa. St. 453; Eosey, Admr. v. Brasher, 33 Am.. Dec. 299; Larco v. Casanueva, 30 Cal. 561.</p> <p>Authority of executor or administrator to act as evidenced by letters testamentary. 18 Cyc. 141.</p> <p>The sale and conveyance of land at an executor’s sale' by an executor as administrator is nothing more than an irregularity which can not affect the title of a purchaser in good faith. Norman v. Olney, 64 Mich. 553.</p> <p>There is nothing in the record in contradiction of the findings. 3 Cyc. 172; Choppin v. Wilson, 27 La. Ann. 444 ; Flint v. Jones, 5 Wis. 84; Territory, ex rel, George Parker v. The Mayor, etc. of Socorro, 12 N. M. 177.</p> <p>As to the necessity for a previous adjudication by the probate court of sufficiency of the personal estate to pay debts. First Natl. Bank v. Lee, 8 N. M. 594; sec. 2282 C. L. 1897; MeCulliun v. McCullum, 33 Ala. 711; Larco* v. Casanueva, 30 Cal. 561; sec. 1960 C. L. 1897.</p> <p>As to necessity for a public sale of real estate. Sec. 2828 C. L. 1884; sec. 2064, 2065, C. L. 1897; 18 Cyc. 325.</p> <p>As to the title of a purchaser of real estate conveyed by an executor acting under power of sale contained in the-will. 11 A. & E. Enc. of L., 1053; La Eue v. La Eue, 3 J. ,7. Marshall, 156; 18 Cyc. 728; 2 Woerner Am. L. of Admr. (2nd ed.) sec. 464, p. 1119; 18 A. & E. Enc. of' L., 938-940; 18 Cyc. 322.</p> <p>Appellants have not embodied all the pleadings in the-record, and this court cannot therefore consider exceptions to conclusions of law of the court below. 3 Cyc. 173 ; Davis v. Talbot, 47 N. E. 829; Brooker v. Easterly, 12' Kas. 149; 2 A. & E. Enc. of L., 1035.</p> <p>Appointment of executor under the will is not effective-without acceptance. Sec. 1966, C. L. 1897; sec. 1944, C. L. 1897; Am. & Eng. Enc. of L., vol. 11, p. 753; id. p. 756; Briscoe v. Wickliffe, 6 Dana 157; Ewing v. Sneed, 28' Ky. 459.</p> <p>Limitation of right to sell real estate to pay debts. Sec. 2065, C. L. 1897; secs. 1867 and 1971, C. L. 1897; Bray v. NeilFs Executors, 21 N. J. Eq. 343; First Natl. Bank v. Lee, 8 N. M. 594.</p> <p>Statutory requirements of a public sale of real estate by an executor. Secs. 1960 and 2063, C. L. 1897.</p> <p>Defendant required to plead specially as in other reactions under the code. Code of Civil Procedure, Act ■of March 21, 1907, p. 269 and sec. 2 of same act, p. 296.</p> <p>STATEMENT OP PACTS.</p> <p>This is an action of ejectment for the possession of a tract of land situated in Dona Ana County, New Mexico, described as follows, to-wit:</p> <p>"A tract of land bounded on the east by land formerly belonging to Kamon Kamos and Otto Bombaek, on the west half of the old river bed of the Rio Grande, on the south by lands formerly belonging to Juan Fajardo and Martin Amador, and on the north by the lands formerly belonging to Agapito Sedillos. Said tract of land contains one hundred and forty-one and thirteen one hundredth acres (141.13), more or less.”</p> <p>The facts covered by stipulation of counsel arc as follows:</p> <p>"That on, to-wit, the first day of January, A. D. 1899, in the County of Dona Ana, Territory of New Mexico, one Thomas J. Bull departed this life testate; that on, to-wit, the 7th day of February, A. D. 1899, the last will and testament of the said Thomas J. Bull, deceased, was duly admitted to probate and probated in the Probate Court within and for the said County of Dona Ana, which county was the domicile of the said Thomas j. Bull at the time of his death.</p> <p>That Ben an ci a Padilla, who was named as executrix in said will with one Willis J. McGinnis, failed and refused'to qualify, act or accept the trust.</p> <p>That at the time of the death of the said Thomas J. Bull there was vested in him the legal title to the land in controversy in this suit.</p> <p>That the appraised value of the personal estate of said Thomas J. Bull, deceased, ivas Sixteen Thousand Two Hundred and Ninety-three and 25.100 Dollars ($16,-293.25).</p> <p>That on February 27th, 1900, approved and unpaid claims against the estate of said Thomas J. Bull, deceased, aggregated, to-wit, Tjen Thousand Two Hun'dred and Seventy-eight Dollars ($10,278).</p> <p>That on the 27th clay of February, 1900, and from thence hitherto, the personal estate of Thomas J. Bull, deceased, was insufficient to pay and' discharge all the just debts against his said estate.</p> <p>That on the 27th day of February, 1900, Iiiram Hadley purchased the property in controversy in this suit for the sum of Two Thousand in money, which amount was applied to the payment of claims against the estate of the said Thomas J. Bull, deceased.</p> <p>That on the 27th day of February, 1900, Willis J. Mc-Ginnis was in possession of the premises in controversy in this suit, and that the sale of the said premises by the said McGinnis was a private sale.</p> <p>That from and after the 27th day of February, 1900, to date, the said Hiram Hadley and his grantees and successors in interest, including John K. Candler, one of the defendants in this cause, have continuously been in exclusive, notorious, open, hostile and adverse possession of the premises in controversy in this cause.</p> <p>That on, to-wit, the 15th day of January, A. D. 1904, by deed of that date reciting a consideration of one dollar, lawful money of the Hnitecl States, to them in hand paid, Francisca Bull, widow of the said Thomas J. Bull, deceased, and Thomas E. Bull, grandson of the said Thomas J. Bull, deceased, remised, released, sold, convejred and quit claimed to the said Hiram Hadley, and to his assigns forever, all their right, title, interest, claim and demand whatsoever in and to the preanises in controversy in this cause, which deed was duly acknowledged, and filed for record on the 16th day of January, 1904, and recorded in Book of Deeds No. 23, at pages 533 and 5$4, in the office of the Probate Clerk and ex-officio recorder of Dona Ana County, New Mexico.</p> <p>That Francisca Bull, surviving wife of the said Thomas J. Bull, deceased, departed this life on, to-wit, January 18th, 1911.”</p> <p>The facts found by the court in addition to those stipulated, are as follows:</p> <p>“That the land and premises in controversy in this suit was acquest and community property at the' time of the execution of said will and at the time of the death of said Thomas J. Bull.</p> <p>That the said Thomas J. Bull, deceased, by his last will and testament devised his one-half of said acquest and community property for life to his wife Francisca Bull, remainder over to Thomas B. Bull and Charies-EL Bull.</p> <p>That on February 27th, A. D. 1900, the premises in controversy in this suit were sold and conveyed to the said Iiiram Hadley by Willis J. McGinnis, executor of the last will and testament of the said Thomas J. Bull, deceased, by deed of that date, acknowledged and executed on that date.</p> <p>That the defendant and his predecessors and grantors have continuously paid all taxes which were and have been levied upon the land or interest in controversy in this cause for the years from 1900 to and including the ih>t lialf of the taxes for the year 1911, both dates inclusive.</p> <p>That the said defendant John K. Candler deraigned title by good and sufficient deed of conveyance from the-said Iiiram Hadley of the land and premises in controversy in this suit, all of which said deeds are duly recorded in the office of the Probate Clerk and ex-officio Becorder of the County of Dona Ana.</p> <p>That at the said time of the execution of said deed by-said Willis J. McGinnis, executor of the last will and testament of Thomas J. Bull, deceased, the said Willis J. McGinnis was executor of the last will and testament of said Thomas J. Bull, deceased, under bond.</p> <p>That the said defendant John IL Candler is the owner of the land and premises in controversy in this suit.</p> <p>That the plaintiffs have failed to maintain the issues on their part to be maintained.”</p> <p>The court found for the defendant, and the plaintiffs, have' appealed.</p>

<p>Appeal from Dona Ana County, New Mexico.</p> <p>Tlie probate judge has power -to grant letters testamentary and of administration. Sec. 1935, C. L. 1897; Mumford t. Hull, 25 Minn. 347; Scott v. Monks, 14 Atl. 860; Sheldon v. Smith, 97 Mass. 34; Small v. Commonwealth, 8 Pa. St. 101; Fulcher v. Commonwealth, 26 Ky. 592; Moore, et al. v. Waller, 1 Marshall 488; Barbour, etc. v. Eobertson’s Heirs, 1 Littell 95.</p> <p>Powers of selling real estate by executors or administrators. Secs. 2065-6, C. L. 1897; Coy. v. Gage, et al.,. 84 S. W. 441; Bray v. Neill’s Executors, 21 N. J. Eq. 34-3.</p> <p>If power of sale existed at all, it must be a public sale.. Secs. 1960 and 2063, C. L. 1897; 28 M. E. 305; Words & Phrases, vol. 3, 4421; id. p. 4440; Banton y. Griswold,. 50 Ath 89; 95 Me. 445.</p> <p>When a sale of real estate is required by law to be a public sale, a private sale is void and passes no title. Freeman on Void Judicial Sales (4th ed.) sec. 32; Hutchison v. Cassidy, 46 Mo. 431; Ellet v. Paxson, 2 W. & S. 418 ;■ Frambo v. Gantt, 12 Ala. 298; Wier v. Davis, 4 Ala. 442; McArthur v. Carrie, 32 Ala. 275; Gaines v. De La Croix,. 6 Wall. 719; Neal v. Patterson, 40 Ga. 363; Ashurst v. Ashurst, 15 Ala. 781; Worten v. Howard, 2 S. & M. 527; Mentress v. Smith, 10 Peters, 161.</p> <p>Administrator’s bond. Secs. 1944 and 2064, C. L. 1897; 1 Woerner Am. Law Administration; 18 Cyc. 82; McClure-v. Colclough, 5 Ala. 65; 2nd ed. Woerner Am. Law Admr. 719; sec. 339; Judge of Probate v. Claggett, 36 N. IL. 381; Casoni v. Jerome, 58 N. Y. 315; Peebles v. Watts,. Admr., 9 Dana 102; 11 A. & E. Ency. of L. 871; Mobberty v. Johnson, 78 Ky. 273; A. & E. Enc. of L., 868; Id. 1055; id. 1157; 33 Am. Dec. 531; Hartzell v. Com., -1.2 Pa. St. 453; Iiosey, Admr. v. Brasher, 33 Am. Dec. 299; Larco v. Casanueva, 30 Cal. 561.</p> <p>Authority of executor or administrator to act as evidenced by letters testamentary. 18 Cyc. 1-11.</p> <p>The sale and conveyance of land at an executor’s sale by an executor as administrator is nothing more than an irregularity which cannot affect the title of a purchaser in good faith. Norman v. Olney, 64 Mich. 553.</p> <p>There is nothing in 'the record in contradiction of the findings. 3 Cyc. 172; Choppin v. Wilson, 27 La. Ann. 444; Flint v. Jones, 5 Wis. 84; Territory'ex rel George Parker v. The Mayor, etc. of Socorro, 12 Ñ. M. 177.</p> <p>As to the necessity for a previous adjudication by the probate court as to the insufficiency of the personal estate to pay debts. First Natl. Bank v. Lee, 8 N. Mi 594; see. 2282 C. L. 1897; McCullum v. McCullum, 33 Ala. 711; Larco v. Casanueva, 30 Cal. 561; sec. 1960 C. L. 1897.</p> <p>As to necessity for a public sale of real estate. Sec. •2828 C. L. 1884; secs. 2064, 2065, C. L. 1897; 18 Cyc. 325.</p> <p>As to the title of a purchaser of real estate conveyed by an executor acting under power of sale contained in the will. 11 A. & E. of L., 1053; La Rue v. La Rue, 3 •J. J. Marshal], 156; 18 Cyc. 728; 2 Woerner Am. L. of Admr. (2nd ed.), sec. 464, p. 1119; 18 A. & E. Enc. of L., 938-940; 18 Cyc. 322.</p> <p>Appellants have not embodiied all the pleadings in the record, and this court cannot therefore consider exceptions to conclusions of law of the court below. 3 Cyc. 173; Davis v. Talbot, 47 N. E. 829; Brooker v. Easterly, 12 Kas. 149; 2 A. & E. Enc. of L., 1035.</p> <p>Appointment of executor under the will is not effective without acceptance. Sec. 1966, C. L. 1897; sec. 1944, O. L. 1897; Am. & Eng. Enc. of L., vol. 11, p. 753; id. p. 756; Briscoe v. Wick!iffe, 6 Dana 157; Ewing v. Sneed, “28 Ky. 459.</p> <p>Limitation of right to sell real estate to pay debts. See. 2065, C. L. 1897; secs. 1967 and 1971, C. L. 1897;. Bray v. Neill's Executors, 21 N. J. Eq. 343; First Natl., Bank v. Lee, 8 N. M. 594.</p> <p>Statutory requirements of a public sale of real estate-by an executor. Secs. 1960 and 2063, C. L. 1897.</p> <p>Defendant required to plead specially as in other actions under the code. Code of Civil Procedure, Act of March 21, 1907, p. 269 and sec. 2 of same Act. p. 296.</p> <p>STATEMENT OF PACTS.</p> <p>This suit was instituted by the First National Bank of Santa Fe, suing for itself and all other creditors of the estate of Thomas J. Bull, deceased, against Barbaro Lucero, et al., including the administrator do bonis non of the estate of Thomas J. Bull, and sureties on the bonds of preceeding administrators, to review and set aside orders of the Probate Court allowing administrators accounts; to discover assets; to compel the payment of creditors so far as the personal property and assets would pay the same; and, to compel a sale of real estate to pay any balance that the assets and personal property would not pay. All appellants and appellees were named as parties defendant, as claimants of the land which was-sought to be subjected to sale.</p> <p>The case, as thus initiated, was determined by a decree which is not appealed from. The questions presented for our determination in this appeal are raised by the answers and counter-claims of the several defendants who are appellees here, setting up title in several of the tracts sought to be sold to pay debts of decedent.</p> <p>Bach appellee filed a separate answer and counter claim against appellants, who are vendees of devisees of said tracts of land under the last will and testament of Thomas-J. Bull, deceased, seeking reformation of the deed executed to him for the land described in his counter claim, so as to give it effect as the deed of Willis J. McGinnis, as administrator of the estate of Thomas J. Bull, deceased,, instead of a deed by him as executor, in which form it was executed. The appellants, defendants to said counter •claims, filed separate answers to each of said counter claims, assailing the validity of said several administrators’ sales under which said counter claimants respectively claimed, upon the grounds that (1) W. J. McGinnis, who made the sales, was not administrator with the will annexed, (the will containing power of sale for purpose of ¡raying debts); (2) that the sales were made at private sale, and, (3) that the inventory and appraisement and list of claims showed sufficient personal assets to pay all debts at the time the sales were made.</p> <p>The facts, found by the court, so far as essential to this appeal are briefly as follows:</p> <p>That Thomas J. Bull, a resident of Dona Ana County, died January 1, 1899, leaving an estate therein, and consisting of both real and personal property; also, leaving a will in which Willis J. McGinnis and Benancia Padilla were named-jointly as executor and executrix, who failed to accept the trust and did not qualify. That the will was duly probated and letters of administration duly issued to Willis J. McGinnis, who qualified as administrator with the will annexed by entering into the usual administrator’s bond, conditioned (among other things) that he should administer according to law all the moneys, goods, etc., of the deceased, and should pajr any and all balances upon the settlement of the accounts to such persons as the Probate Court, or the law, should direct, which bond was duly approved by said court, and said administrator thereupon entered upon his duties as such.</p> <p>That Thomas J. Bull, was the owner of tracts of land described in the complaint, as tracts A. to P., inclusive, at the time of his decease.</p> <p>That the personal estate of decedent, coming into the hands of said McGinnis, administrator, was insufficient to meet the debts of the estate and necessitated a resort to a part of the real estate to realize funds to pay the debts of the estate.</p> <p>The conclusions of law pertinent to the present inquiry were as follows:</p> <p>“3. That the personal estate of the said Thomas J. Bull, deceased, being insufficient, to pay the debts of the ■estate, the said administrator, Willis J. McGinnis, properly resorted to the real estate of the said estate for the purpose of realizing funds wherewith to satisfy the claims against the estate of the said Thomas J. Bull, deceased, and that the sums realized therefrom became and were a part of the estate to be and by the said administrator disbursed, as provided By law, in the satisfaction of existing claims against the said estate.”</p> <p>“7. That Willis J. McGinnis, being in fact and law the administrator of ihe .estate of Thomas J. Bull, deceased, with the will annexed, and having been such administrator with the will annexed at the time he executed and delivered the deeds and transfers as executor of the estate of Thomas J. Bull, deceased, as alleged in the answers and cross complaints filed herein, the said defendants and cross complainants, Francisco Bal, Pablo Gamboa, Miguel Estrada, S. W. Sherfey and Nancy Sherfey, his wife, Oscar Snow, W. N. Iiager and Bamon Bermudes, administrator of the estate of Bamon Gonzales, deceased, are, and each of them is, entitled to the relief prayed for in their said cross-complaints; that said instruments and deeds of conveyance be reformed, as prayed in said cross-complaints.”</p> <p>Judgment was rendered for each of the appellees reforming his deed, and from that judgment this appeal is taken.</p>

No'evidence to sustain conviction. Blashfield’s Instructions to Juries, vol. 1, sec. 33; and cases there cited; Caldwell v. Center, 30 Calif. ‘539; Jones v. Eandolph, 104 H. S. 108; 12 Cyc. 651. It is too late to raise in this court any question as to instructions. Territory v. McGrath, 16 N. M. 202; Territory v. Caldwell, 14 N. M. 535; Territory v. Gonzales, 14 N. M. 31; Territory v. Watson, 12 N. M. 419; Territory v. O’Donnell, 4 N. M. 196.

Although a wife’s separate estate is secured to her separate use the husband’s common law dutjr to maintain her-during coverture and to provide family necessaries still remains. 4 Cye. p. 1444, note 85.

There was no arraignment and plea by the defendant. 'Gonzales v. Territory, 13 N. M. 97; Arandt v. Territory, lo N. M. 292. , No fatal variance as to ownership. 2 Bishop’s Crim. Proc., sec. 721. Not necessary for state to prove value of animal alleged to bare been stolen. Sec. 79, C. L. 1897; 2 Bishop’s Grim. Proc., sec. 713; Davis v. State, 40 Tex. 134. Misconduct of jurors must be definitely proven. People v. Williams,-24 Cal. 31; Achey v. State, 64 Ind. 56.

The court erred in sustaining the demurrer to the non matter pleaded by appellant in his reply to plaintiffs amended answer to appellant’s cross-complaint. Newell on Ejectment, 738; Liggett v. Morgan, 11 S. W. 241; Foley v. Jones, 52 Mo. 64; Wells v. Halpin, 59 Mo. 92; Moore v. Granby Man. & S. Co., 80 Mo. 86; C. L. 1897, sec. 2918; Smith, Adnrr. v. Newby, 13 Mo. 163; sec. 34, chap. 22, Laws of' 1899; sec. 4092, C. L. 1897.

<p>Appeal from District Court, Chaves County .</p>

The decree, judgment in contempt, and all proceedings in this cause, are coram non judice and void for want of jurisdiction of the subject matter. 2 Fed. Stats. Ann. 838; 2 Bishop Mar. & Div. sec. 593; 14 Cyc, 663; Pate v. Pate, 6 Mo. App. 49; Richardson v. Richardson, 50 Yt. 119; Jarvis v. Jarvis, 3 Edw.

The instrument sued on amounted in law to no more-than an agreement to make a binding contract in the future, provided the parties could agree upon its terms. 1 Benjamin on Sales, sec. 87, p. 104; Thurnell v. Balbirnie,. 2 C. B. 786; Cooper v. Shuttleworth, 25 L. J. Ex. 114;.

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

The rule is that .where payment is made upon a note- and endorsed thereon, the proof of such fact is not sufficient to remove the bar of the statute of limitation unless the endorsement was made by the holder at the request-of the payer. Kyger v. Kiley, 2 Neb. 20; Ilowley v. Gris-wold, 42 Barb. 18; Sibley v. Phelps, 6 Cush. 172; Smith v. Sims 9 Ga. 418; sec. 2926, C. L. 1897; 25 Cyc. 1026; 18 Cyc. 424.

<p>Appeal from District Court, Socorro County.</p> <p>Tlie verdict was contrary to the evidence. Reynolds v. "State, 24 Ga. 427; Ralferty v. People, 72 111. 37; Stout v. State, 78 Ind. 492; State v. ITilton, 22 la. 241; Crandall, v. State, 28 Ohio 479; State v. Kane, 1 McCord 482; State v. Owens, 35 Tex. 361; Brite v. State, 10 Tex. App. 368; Ellis v. State, 10 Tex. App. 540; Saltillo v. State, 16 Tex. App. 249; Dean v. Commonwealth, 32 Grat. 912; Bedford v. State, 24 Tenn. 552; Territory v. DeGutman, ■8 N. M. 92; Faulkner v. Territory, 6 N. M. 464; People v. Freeman, 91 N. E. 708; State v. Yarnado, 55 So. 562; Territory v. Armijo, 8 N.- M. 428; Montalvo v. State, 31 Tex. 63; People v. Bergen, 17 N. Y. Supp. 296; Farnandis v. Great Northern Ey. Co., 84 Pac. 18; Sims v. State, 120 Pae. 1032.</p> <p>STATEMENT OF FACTS.</p> <p>This was an indictment for mnrcler, resulting in a conviction of murder in the first degree with the death penalty affixed. Defendant appeals.</p> <p>In August, 1911, the appellant was arrested and confined in the county jail of Luna County, at Deming, N. M., to await the action of the grand jury under a charge of burglary. While thus detained, on November 7th, he was delivered from jail by John and Eejuiold Greer, two former companions, who held up the sheriff, compelling the officers to unlock appellants cell, after which the two Greers and appellant procured horses and attempted to make their escape, apparently starting for the Black Eange country.</p> <p>The sheriff of Luna County enrolled a posse which included Thomas Hall, A1 Smithers and a number of others who were changed from time to time. This posse trailed the fugitives for about 100 miles, finally overtaking them at the Adobe Eanch in the southern part of Socorro County. When the posse arrived at the ranch, it divided its force and surrounded the place. The sheriff stationed Hall and Smithers at a • point overlooking the main gate of the ranch and at a distance therefrom about 200 to 300 yards, after which he circled about the ranch house, bringing up nearly opposite the point where he had stationed Hall and Smithers.</p> <p>When the sheriff arrived at the last mentioned point he discovered that the three fugitives were leading their horses toward a gate in the fence, and that they seemed to be in a hurfy; the sheriff then hastened back to join Hall and Smithers, and when he came out on top of a little mesa, he saw Hall and Smithers standing by their horses .where he left them, and the three fugitives riding from the gate toward where Hall and Smithers were standing, all of the fugitives being mounted, and one leading a pack horse. The sheriff testified that he recognized the man, identifying the defendant, the appellant Gates, as one of the three; that when the men approached Hall and Smithers they rode abreast; that when the three fugitives arrived at a point between 40 and 50 yards from Hall and Smithers, all three jumped from their horses and commenced firing with Winchester rifles, Hall and Smithers firing at the same time, at which time the sheriff also jumped from his horse and commenced firing from his position, the result of this battle being that Hall and Smithers, two members of the posse, and John Greer, one of the fugitives, were killed, the appellant and Beynold Greer making their escape from the place.</p> <p>The appellant made his way to El Paso, Texas, where he was recaptured a few weeks later. The appellant's testimony briefly is as follows:</p> <p>After the attempt to deliver him from jail by his companions, the Greers, and their flight, covering the period of 11 or 12 days, arriving at the Adobe Banch house, and believing that they had escaped from the officers, having-eaten their ■ dinner at the ranch house, they decided to-leave the place and saddled their horses, at which time' they saw a rider down by the corner of the fence a quarter of a mile away; that when they started from the gate they saw Hall and Smithers standing by their horses and looking toward them; that appellant thought they might be cow boys; that they rode out from the gate in the direction of the two men they had .seen, John Greer taking the lead, the other Greer with the pack horse next, and the appellant bringing up the rear; that when they rode up to within possibly 75 or 100 yards the three rode abreast; that the two men were standing behind their horses but that' one of them stepped out from behind his-horse, raised his gun and shot at appellant, who tried to get off his horse but his feet caught in the bridle rein or-rope at the side of his horse, resulting in his falling from his horse and being “drug” eight or ten steps; that the-shooting continued all this time and possibly 50 seconds; that when appellant got loose from his horse he commenced crawling toward a ditch about 30 steps behind his position; that he later raised up and ran rapidly to the arroyo; that he did not go to the corral or near it and that after he had gotten about 200 yards from the scene "of the battle'he sat down and pulled off his spurs, throwing théih áway, rolled a cigarette and smoked it and then came back to the scene of the battle where he saw a dead man, John Greer by name, but did not see anybody else; that he saw the two horses Hall and Smithers had ridden standing on a point; that he at first thought he would attempt to get one of them, but changed his mind as it was too high up and he did not wish to expose himself; that he made a little circle about the place, walked back upon the canon around the mountain to a point a mile away, where he sat down behind a rock looking at his watch, finding that it was 20 minutes-after 4 ■o’clock; that he smoked another cigarette and stayed the rest of the night on the other side of the mountains at a little spring, remaining in that vicinity within six miles of the house during the following day, after which he proceeded out of the country, by stages described by him, going to El Paso, Texas, where he pawned a pistol which he had taken from the sheriff at the time of his escape from jail.</p> <p>Sheriff Stephens further testified that he saw the appellant after the battle running toward the corral on the ranch and shot at him; that at about this time he heard four shots from the direction of the house. The witness Simpson, who was a member of the posse, testified that he had seen the appellant frequently before the time of the shooting and knew him; that immediately after the firing commenced, during which Hall, Smithers and Greer were killed, he with another member of the posse, Mr. •James, rode to the house, and upon arriving at the corral, saw the appellant in the corral and shot at him but missed him; that he believed he had hit him as the appellant dropped at the time, but shortly afterwards, he saw and recognized him "running off across the flats” and shot at him again four times; that while the appellant was in the corral, from the movements he was making, the witness was satisfied that he was reloading his rifle.</p> <p>Capt. Fred Fornoff, of the Mounted Police, testified,' in rebuttal, that he took the appellant from'the penitentiary to Albuquerque, where he delivered him to the officers of Socorro County, and that while in 'the company of appellant, appellant stated to him in substance that he said to Greer at the time of the battle, “We are' surrounded, and we had better stay in the house,” and Greer said, “We will go out and have it over with,” and that they did as a matter of fact go out to where the parties were immediately afterwards. This witness also testified that the appellant informed him that he told Greer that the parties were officers.</p>

<p>SYLLABUS (BY THE COURT).</p> <p>1. Evidence reviewed and held to warrant a verdict of murder in the first degree.</p> <p>2. Where, in the trial of a person charged with, murder in the first degree, there are no facts or circumstances in evidence, tending to reduce the offense to murder in the second degree, hut such facts and circumstances all show that the crime was in the first degree, the court is not required or authorized to instruct as to murder in the second degree.</p>

Findings will not be disturbed when sustained by substantial evidence and where there is nothing in which to shock the moral sense. Puritan Co. v. Totie, et al., 14 N. M. 433; Kitchen v. Schuster, 14 N. M. 177; Ponnell v. Louisville Tob. Co., 113 Ky. 630; Kerr v. Lunsford, 31 W. Ya. 659; Leroy & W. E. Co. v. Eoss, 30 Kas. 398; .Flint v. Flint, 6 Allen 34. In order to testify as to the value of land one must be informed concerning the land in question or similar local land.

From Corporation Commission. Constitutional and statutory provisions governing this ■case. Sec. 1, art. 11, Constitution of New Mexico; sec. 7, art. 11; chap. 78, laws of 1912; id., secs. 2, 3, 13; sec. '8, art. 11, Constitution; sec. 18, art. 2, Constitution; sec. 1, 14th amendment Constitution of IJ. S.; sec. 20, art. 2, State Constitution; sec. 12, art. 2, state constitution. ■ The order of the Commission is not self-executing.

Necessity of election. Common law rule. An express provision in the will in lieu of dower puts the widow to her election. Matter of Gordon, 172 N. Y. 25; note under 92 Am.

A contract for the sale of land, whereby further payments are to be made, is not a sale of the land, and the-placing of such a contract, together with a deed, in escrow,, is not a sale, and conveys no title until the last payment has been made and the deed actually delivered to the grantee. Jackson v. Rowland, 22 Am.

<p>SYLLABUS (BY THE COURT).</p> <p>1. A party usually Las the right to discontinue any action or proceeding instituted by him, unless substantial rights of other parties have accrued, and injustice will be done by permitting the discontinuance.</p> <p>2. While such dismissal must be by order of the court, and the court has a discretionary control over its orders and decrees, if no facts appear which show that such dismissal will violate any of the rights or interests of the adverse party, a refusal of leave becomes merely arbitrary and without any basis upon which discretion can rest-</p> <p>3. Where a party files a claim with the referee, in accordance with the provisions of sec. 82 of chap. 79, S. L. 1905, and demands that a jury decide thereon, and such claim is certified to the district court for trial, as required by said section, the claimant has a right to discontinue said proceeding, in the absence of any showing that such discontinuance will violate or prejudice the rights or interests of other interested parties.</p>

<p>Appeal from District Court, Chaves County.</p> <p>Recovery must in all cases he had on the pleadings and the evidence. Yol. 11, American Digest, Decennial Edition, sec. 248, page 1920; Wheeler v. Foster, 82 111. App. 153; Woodward v. Mitchell, 39 N. E. 437; Fowler v. Cooper, 2 Ky. 58; Shannon v. Pennington, 10 Ky. 814; Clemons v. Helehan, 72 N. W. 270; Toy v. McHugh, 87 N. W. 1059; Satterlund v. Beal, 95 N. W. 518; 23 Cyc. 816; Black v. Early, 106 S. W. 1023; Roden v. Helm, 90 S. W. 798; 120 Pac. 307; Schneider v. Patton, 75 S. W. 168; 1 Black on Judgments, (2nd ed.) sec. 41.</p> <p>There is no principle of law better settled than that every act of a court of competent jurisdiction shall be presumed to have been rightly done. 1 Black on Judgments, sec. 270; Yoorhees v. Jackson, 2 Pac. 289; Wenner v. Thornton, et al., 98 111. 156; Blake v. Lyon Mfg. Co., 77 N. Y. 226; Cary v. Field, 10 N. M. 257; M. W. Flournory v. George W. Champion, 11 N. M. 87; Benjamin IT. Dejr, et al. v. II. C. Cary, et al., 13 N. M. 85; George A. Davison, v. Etta Owens, 16 N. M. 689.</p> <p>A decision on a former appeal, whether right or wrong, is the law of the case. Roach v. Sanborn Land Co., 122 N. W. 1020; In re Cook’s Estate, 122 N. W. 578; Rising v. Carr, 70 111. 596; Stewart, Admr. v. Salmon, et al., 97 IT. S. 361; Hastings v. Foxworth, 31 L. R. A. 321.</p>

Section 12, article 9 of the Constitution does not confer any direct authority, grant or power for the creating of an- indebtedness, but contains merely inhibitions relative to indebtedness. Secs. 12 and 13, art. 9, Constitution; •sec. 21, art. 22, Constitution; '34 Pac. 559; 122 N. W. 403; 18 N. D. 289; Ordinance 121 of the Town of Gallup.

<p>SYLLABUS (BY THE COURT)'.</p> <p>1. An action for the removal of an officer from office under the provisions of chapter 36, laws of 1909, is a civil and not a criminal proceeding.</p> <p>2. The words “immediately set down for trial” as used in sec. 12 of the Act, are not peremptory, but secure, merely, to the public and the defendant, a preference of right of trial over other eases, and impress upon the proceeding as much expedition as is within the power of the court.</p> <p>3. A writ of prohibition is not available as a writ of error, but is only available where there is a lack of jurisdiction.</p>

Stockholders in a corporation formed under sec. 23 of the Corporation Act are liable to creditors until the capital certified by their officers as that with which they commenced business is fully paid in money or money’s worth. Chap. 79, laws of 1905; id. secs. 22, 23, 27. Intentional over-valuation of property by directors is actual fraud.

<p>SYLLABUS (BY THE COURT).</p> <p>1. Mandamus will not lie to compel a district judge to sign and settle a bill of exceptions, where such bill was not tendered until after the return day of the appeal, as the trial judge is not authorized to settle a bill of exceptions -tendered less than ten days before the return day.</p>

<p>Appeal from District Court, Socorro County.</p>

<p>SYLLABUS (BY THE COURT).</p> <p>1. An indictment for murder in the first degree, in other respects sufficient, which concludes in the following language, “did strike and beat the said Juan Trujillo, giving to him, the said Juan Trujillo, in and upon the top of the head of him the said Juan Trujillo, one mortal contusion bruise, fracture and wound, of which said mortal wound, the said Juan Trujillo thence continually languished until, on the 30th day of December, A. D. 1909, between the hours of two and three o’clock in the morning of said day, he there died,’’ charges that the deceased died of the mortal wound alleged to have been inflicted by the defendant.</p> <p>2. The common law, adopted by statute in this state as the rule of practice and decision, in criminal cases, requires the defense of former jeopardy to be specially pleaded, and such defense is not admissible under the general issue. Held, where such defense is not so pladed, it can not be raised by motion upon the conclusion of the state’s case, for an instructed verdict.</p> <p>3. The record in this case shows that a valid jury was ■empaneled to try defendant.</p> <p>4. The granting or denying of a motion for continuance is within the discretion of the trial court, and unless such' ■discretion has been abused, to the injury of the defendant, the denial of such motion will not constitute error.</p> <p>5. It is not an abuse of discretion by the trial court, to refuse to grant a continuance, where the only ground stated in the application is the absence of counsel for defendant in an adjoining county, attending court.</p> <p>6. Where instructions given by the court, in a criminal case, are objectionable to the defendant, he must call the court’s attention to the claimed error in such instructions, prior to, or at the time they are given, so that the court may have an opportunity to correct the alleged error: and objections filed in the clerk’s office to instructions two days after the trial and verdict will not be considered.</p> <p>7. The same rule applies to requested instructions which the court refuses to give. It is the duty of the defendant, if he intends to predicate error upon such refusal, to except to the action of the court, at the time, in refusing to give such instructions.</p> <p>8. In cases of homicide it is permissible to allow the defendant to show the general reputation of the deceased as to being a lawless and violent character, but specific acts of violence on the part of deceased may not be shown.</p> <p>9. The trial court properly admitted in evidence a portion of the skull of the deceased, showing the character of one of the claimed mortal wounds, alleged to have been inflicted by the defendant.</p> <p>10. Defendant can not predicate error, upon the action of the court in permitting the sheriff, who arrested defendant, to testify to an alleged conversation had with defendant, where there was no showing that such statement was made under duress, threats or promises.</p>

From Corporation. Commission. No petition filed or served upon defendant as required by law. Secs. 2 and 3, chap. 78, laws of 1912. No certified copy of the order was served on defendant as required by law. Sec. 4, chap. 78, laws of 1912; Morris V. Patchin, 24 N. Y. 394; Ry. v. Cutter, 19 Kas. 83; Wilcox v. Wilson, 178 Mass. 68; Ry. v. People, 200 111. 237; Nelson v. Blakely, 54 Ind. 29; Jones on Ev. (2nd ed.), sec. 523.

Prohibition. Proceeding in rem. Brown on Jurisdiction, chap. 8, secs. 58, 59, 59a, 61. Action in rem must be brought in the county in which the res, or a portion thereof, is situated. Jemez Land Co. v. Antonio Jose Garcia, 15 N. M. 316; Turrill, et al. v. Walker, 4 Mich. 177; Jewett, 77, p. 567; 69 Has. 830; 93 Mo.