Volume 18 — New Mexico Reports

Leib, District Judge; Act creating office of Territorial Irrigation Engineer. Ch. 102, laws of 1905; chap. 104, laws of 1905; sec. 28, chap. 102, laws of 1905; Young and Norton v. Hinderlider, 110 Pac. 1045; sec. 63, chap. 102, laws of 1905. Record proper is not part of.the transcript of record because not properly certified.

<p>Appeal from the District Court of Bernalillo County; Herbert F. Eaynolds, District Judge;</p> <p>Judgment sustaining demurrer erroneous. Sec. 4138, C. L. 1897; sec, 1272, C. L. 1897.</p> <p>Election in -September, 1910, was a general election. Secs. 1634, 1640, 1660, 1700, 1702, C. L. 1897; Mackin v. State, 62 Md. 244; Downs v. State, 78 Mo. 128. Indictment valid. Secs. 1272 and 4138, C. L. 1897.</p> <p>Election was special and not a general election. Sutherland on Stat. Cons., sec. 520, p. 962; Mechem on Public Officers, secs. 173 to 176; chap. 43, C. L. 1865, secs. 2, 3, 4, 5, 33; sec. 1209, C. L. 1884; sec. 1698, C. L. 1897; secs. 1640, 1660, 1702, C. L. 1897; chap. 113, laws of 1889; sec. 1, chap. 22, laws of 1880; sec. 1272, C. L. 1897.</p> <p>Indictment cannot be sustained. Sec. 1272, C. L. 1897; sec. 1, chap. 22, laws of 1880; sec. 17, chap. 9, laws of 1891; sec. 18, chap. 9, laws of 1891; Territory ex rel Albuquerque v. Matson, 16 N. M. 135; chap. 9, laws of 1899.</p> <p>STATEMENT OP PACTS.</p> <p>The indictment, in this case, charged that the 6th day of September, was the day of a general election in the Territory of New Mexico, held pursuant to the provisions of an act of Congress authorizing the people of New Mexico to form a constitution and state government; that by the provisions of said Congressional act the Governor of the then Territory of New Mexico, by proclamation, dated June 29, 1910, designated the 6th day of September, 1910, as the day for said general election for delegates to the constitutional convention, which election was duly-held on the day designated; that defendant, appellee here, on said general election day, being then and there a liquor dealer and having a place of business as such, did sell, allow to be sold, give away and allow to' be given away, intoxicating liquors.</p> <p>The second count of the indictment charged that upon the same day the defendant did refuse, neglect and omit to close his place of business between the hours provided by statute for the closing of such places of business.</p> <p>A demurrer to the indictment was interposed raising the question that the indictment did not charge an offense because the day, upon which the alleged illegal opening of the saloon and selling of liquor is charged to have been done, was not a general election day within the meaning of the statute. This demurrer was overruled, but subsequently, by stipulation, of the District Attorney and counsel for appellee, the order overruling the demurrer was set aside and a pro forma judgment entered sustaining the demurrer, from which judgment the territory appealed to this court.</p>

Roberts, Associate Justice; New Mexico homicide statutes. Sec. 1060, C. L. 1897; Territory v. Montoya, 125 Pac. 622; sec. 1, chap. 36, also sec. 2, laws of 1907; Whitford v. Com., 18 Am. Dec. 774; sec. 1061, C. L. 1897; sec. 1062, C. L. 1897; sec.. 1069, C. L. 1897; sec. 11, chap. 36, laws of 1907; sec. 1071, C. L. 1897; 2 Mo. Anno. Stat. 1906, sec. 1818. As to qualification of. jury. State v. Culler, 82' Mo. 623; Smith v. Moore, 74 Yt. 81; O’Mera v. Com., 75 Pa.

Leahy, District Judge; Statutory provisions for assessment of property fox* taxation. Sec. 4026, C. L. 1897; sec. 1, chap. 22, laws of 1899; sec. 4031, C. L. 1897; sec. 25, chap. 22, laws.of 1899; O’Bear v. Crum, 135 111. 294; Young v. Joslin, 13' B. I. 675; Sweigle v. Gates, 84 N W. 482; Clark v. Crane, 5 Mich. 151; Cromwell v. Wilson, 52 Hun. 614; Northern Pac.

Abbott, District Judge; 1. Court erred in holding that it was necessary to prove the incorporation of the plaintiff. Clark & Marshall Corporations, sec. 83, p. 262, vol. 1, (1903); Id., see. 84;. Seattle Crockery Co. v. Haley, et al., 6 Wash. 302; Tragdon v. Cleveland Stone Co., 53 111. App. 206; Hassinger v. Ammon, et al., 160 Pa. St. 245' (suretyshop bond); City of St. Louis v. Shields, et al., 62 Mo. 247 and cases cited therein; Loaners Bank v. Jacoby, 10 Hun.

<p>SYLLABUS (BY THE COURT)</p> <p>A motion for dismissal not supported by brief or argument will not be considered by this court.</p>

<p>SYLLABUS (BY THE COU±.T.)</p> <p>1. A contract for the exchange of land provided “in the event that the party of the first part shall fail to comply with the terms thereof, within the time herein limited, the said second party may at his option declare this contract void, in which event all rights and liauklties.hereunder s^all cease and determine.” Held that the forfeiture of the contract was made optional with the second party, and if he did not see fit to exercise his option and declare the forfeiture, the contract continued in full force and effect.</p> <p>P. 60</p> <p>2. HELD: Further, that a declaration of the fact that the</p> <p>party had elected to exercise his option to cancel the contract should have been made to the first party, and until it was made, the option was not exercised and the contract continued in full force and effect.</p> <p>P. 60</p>

Abbott, Associate Justice; Amended complaint stated a cause of action against appellees and sureties. No defect of parties plaintiff. No misjoinder of parties plaintiff. Dicey on Parties, 101; TIoxie v. Weston, 19 Maine 222; Sanders v. Filley, 12 Pick. (Mass.) 554; Chapin v. Vermont R. R. Co., 8 Gray (Mass.) 575; Irish v. Jonston, 11 Pa. St. 483; Wieman v. Mainegva, 112 La. 105, 36 So. 358; Probate Court v..

<p>Appeal from the District Court of Bernalillo County; FI. F. Raynolds, District Judge;</p> <p>Failure to obtain approval of bond is fatal to plaintiff’s right to maintain this action. Mullery v. McCann, 95 Mo. 579, 583; Richards v. McMillan, 36 Neb. 352, 357-8; MeMillin v. Richards, 45 Neb. 786, 799; Holt Co. v. Scott, 73 N. W. 681; Kreitz v. Behrensmeyer, 24 L. R. A. 59, 63; Rounds v. Mansñeld, 38 Me. 588; Rounds v. Bangor, 46 Me. 542; Andrews v. Covington, 69 Miss. 746-7; United States v. Eaton, 169 U. S. 331-334; United States v. LeBaron, 19 How. 78-79.</p> <p>It was essential to plaintiff’s title that he be commissioned by the Governor. United States v. LeBaron, 19 How. 78-9.</p>

<p>Appeal from District Court, Lincoln County; Edward L. Medler, District Judge;</p>

McFie, Associate Justice; BRIEF FOR APPELLANT. The surety was released by .failure of obligee to retain 15 per cent of value of work performed and materials furnished. 2 A. & E. Ann. 766, and note; First Natl. Bank of Montgomery v. Fidelity & Dep. Co., 40 So. 415, 5 L. R. A. (N. S.) 418, and note; Glenn Co. v. Jones, 146 Cal. 518; Sheldon v. American Sur.

McClure, District Judge; Court erred in overruling plaintiff’s motion for judgment based on special findings 1 and 3, for tbe reason that there was no substantial apd competent evidence to support special finding 2. Candelaria v. Miera, 13 N M. 360. Special finding No. 2 not supported by any substantial evidence, and was inconsistent with the general verdict; judgment should have been rendered for plaintiff. Code Civ. Pro., sec. 2993.

Baynolds, District Judge; Inhabitants of incorporated cities and towns not required to perform labor upon the county roads. Laws 1905, chap. 124, amended by chap. 53, Laws 1907, secs. 2, 24, 25, 26, 27, 28, 34, 35, 40; C. L., sec. 2464, sec. 2411, sec. 2402, sub-div. 85; Powers v. Barney, 5 Blatcli. 202 and 3; Sutherland Stat.

Mechem, District Judge; Act of 1909 is a local and specific law regulating county affairs. Laws of 1903, p. 134; laws 1905, p. 4; laws 1909, p. 38; 24 Stat. L. 170; ibid., sec. 7; 25 State. L. 336; Territory y. Gutierrez, 12 N. M. 272; Territory y. Beaven, 15 N. M. 361; laws 1909, p. 214; Edmunds y. Herbrandson, 14 L. R. A. 725; Henderson y. Koenig, 57 L. R. A. 659; State ex rel. Atty. Gen. y. Sayre, 4 A. & E. Ann. Cas. 656 and note 659; Harwood v. Wentworth, 162 IT. S. 564.

Raynolds, District Judge; Court erred in excluding evidence in support of items of counter-claim. Amendment C. L. 1897, sec. 2685, sub-secs. 85 and 94; Perea v. Gallegos, 5 N. M. 110; Brown v. Gise, 14 N. M. 282; Friday v. Railway, 16 N. M. 437 and 438.

<p>Appeal from the District Court for the County of Quay; Thomas D. Leib, District Judge;</p> <p>Notice to bank of trust character of the fund. Estoppel. Rich v. Bank, 7 Neb. 201; Thomas v. Bank, 58 N. AAT. 943; Merchants Natl. Bank v. McAnulty, (Tex. Civ. App.) 31 S. AY. 1091; Porter v. Bank, 19 Yt. 410; Rock Springs Bank v. Luman, 42 Pac. (Wyo.) 874; Central Bank v. Levin, 6 Mo. App. 543; First Nat. Bank v. Peisert, 2 Penn. 277; First Nat. Bank v. Blake, GO Fed. 78; Tilden v. Barnard, 43 Mich. 376; LeDuc v. Moore, 111 N. C. 516; Black Hills Bank v. Kellogg, 4 S. Dak. 511, (38 Am. Rep. 197); Clerks Bank v. Thomas, 2 Mo. App. 367; Akers v. Bank, 63 Mo. App. 316; German Nat. Bank v. Grinstead, 52 S. AY. (Ky.) 951; First National Bank v. Dunbar, 118 111. 625; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268; New Milford Bank v. New Milford, 36 Conn. 93; Loring v. Bodie, 134 Mass. 453; Holden v. Bank, 72 N. Y. 286.</p> <p>Estoppel. 5 Cyc. 464, note 37, and cases cited.</p> <p>AVho is a depositor. State v. State Bank, 42 Neb. 890; 61 N. AY. 252; York, et al., v. York Market Co., 37 Atl. 1038; Marine Bank v. Fulton Bank, 2 AY all. (H. S.) 256.</p> <p>If deposit at all, was one to be specially applied. 5 Cyc., 515; Morse on Banks and Banking, (4th ed.) sec. 567; Star Cutter Co. v. Smith, 37 111. App. 212.</p> <p>Bank insolvent when receiving a deposit. Craige v. Hadley, 99 N. Y. 131; St. Louis Co. v. Johnson, 133 H. S. 566; AYhitcomb v. Carpenter, 134 Iowa, 11 N. AAr. 825; 10 L. R. A. (n. s.) 928.</p> <p>AYas Buchanan’s act in depositing contrary to instructions subsequently ratified by Daughtry? McLeod v. Evans, 66 AYis. 401; In re Johnson, 61 N. AY. (Mich.) 352.</p> <p>Can follow trust funds if they can be identified. 3 Pomeroy Eq. Jur. (3rd ed.) sec. 1048; Taylor v. Plummer, 3 M'. & S. 575.</p> <p>Even though mingled they can be followed if clearly identified. Twohy Mercantile Co. v. Melbye, 78 Minn. 357; Union Nat. Bank v. Goetz, 138 111. 127; AYetherill v. O’Brien, 140 111. 146; Bright v. King, 20 Ky. Law 186; Robinson v. AYoodward, 20 Ky. Law 1142; Culver v. Cuyer, 118 Ala. 602; Slater v. Oriental Mills, 18 R. I. 352; Ober & Sons v. Cochran, 118 Ga. 396; North Dak. Co. v. Clark, 3 N. Dak. '30; Phila. Nat. Bank v. Dowd, 38 Fed. 172.</p> <p>Trust funds mingled but are still in the mass. National Bank v. Insurance Co., 104 IT. S. 54; Lincoln Sav. Bank v. Morrison, (Neb.) 57 L. R. A. 885; Bohle v. Hassenbrock, 64 N. J. Eq. 334; Roca v. Byrbe, 145 N. Y. 182; Winstandly v. Bank, 13 Ind. App. 544; Dunham v. Seglin, 39 Ore. 291; Holmes v. Gilman, 138 N. Y. 376; State v. Foster, 5 Wyo. 199; Shields Y. Thomas, 71 Miss. 260; Ferchen v. Arndt, 26 Ore. 121.</p> <p>Where trust funds went into the estate of insolvent and swelled it. Lincoln Sav. Bank vr Morrison, 64 Neb. 822, 57 L. R. A. 885; Knatchball v. Hallett, 13 Ch. Div. 696; Hazeltine v. McAfee, 5 Kans. App. 119; McClure v. La Plata Co., 19 Colo. 122; Hopkins v. Burr, 25 Colo. 502; Kansas State Bank v. First State Bank, 62 Kans. 788; Cushman v. Goodwin, 95 Me. 353; Shields v. Thomas, 71 Miss. 260; Tierman’s Exrs. v. B. & L. Assn., 152 Mo! 135; Midland Nat. Bank v. Brightwell, 148 Mo. 358; Metropolitan Natl. Bank v. Campbell Co., 77 Fed. 705; In re Wolf, 99 Fed. 485.</p> <p>Where sufficient funds come into receiver’s hands to satisfy trust debt and funds at no time since conversion been less than trust debt. Continental Nat. Bank v. Weems, 69 Tex. 489; Massey v. Fisher, 62 Fed. 958; Noone County Bank v. Latimer, 67 Fed. 27; Onotok Silk Co. v. Flanders, 87 Wis. 237; In re Wolf, 99 Fed. 485; Cavin v. Gleason, 105 N. Y. 256; Wulbern v. Timmons, 55 S. C. '456; Knatchbull v. Hallett, 13 Ch.-Div. 696.</p> <p>If trust funds went to augment estate cestui trust has a lien on the general assets of the estate. McLeod v. Evans, 66 Wis. 401; Peak v. Elliott, 30 Kans. 156; Myers v. Board of Education, 51 Kans. 87; Harrison v. Smith, S3 Mo. 210; People v. City Bank, 96 N. Y. 32; Hubbard v. Alamo Co., 53 Kans. 637; Ryan v. Phillips, 3 Kans. App. 704; Independent District v. King, 80 Iowa 497; Davenport Plow Co. v.- Lamp, 80 Iowa, 722; Boyer v. King. 80 Iowa, 498; Capital Nat. Bank v. Coldwater, 49 Neb. 786 ; State v. Midland Bank, 52 Neb. 1; Kimmell v. Dickson, 5 S. Dak. 221; Reeves v. Pierce, 64 Kans. 502; Midland Nat. Bank v. Brightwell, 148 Mo. 358.</p> <p>If the principal ratifies the transaction of agent, who is representing two adverse interests, with full knowledge of the facts, he is bound. 31 Cyc. 1572, B. note 93; 31 Cyc. 1248, (II).</p> <p>Principal must have full knowledge oc all material fads-at time of ratification. 31 Cyc. 1253.' Unless principal chooses to act without such knowledge. 31 Cyc. 1357 (Itt).</p> <p>Ratification may be implied. 31 Cyc. 1263, c. note 3, 1264.</p> <p>Ratification with knowledge binds principal. Truslow v. Bridge Co., 57 S. E. 51; British Am. Ass. Co v. Cooper,. 40 Pac. 147; 31 Cyc. 1283, 4, note 38.</p> <p>Attempt to enforce contract or take advantage of it, after knowledge of facts, is ratification. 31 Cyc. 12.80, (IV), note 12; Jones v. Atkinson, 68 Ala. 167; Hatch v. Taylor, 10 N. H. 538; Medomak Bank v. Curtis, 24 Me. (11 Shep.) 36; Rosenthal v. Hasberg, 84 N. Y. Sup. 290; Bank'v. Brewing Co., 33 N. E. 1054; Dabney v. Bank, 3' S. C! (3 Rich.) 124; Thompson v. Mfg. Co., 53 S. E.„ 908; 6 L. R. A. n. s. 311; Truslow v. Bridge Co., 57 S. E. 51; 31 Cyc. 1275 (III); State v. State Bank, 43 Neb. 896.</p> <p>Relation of Debtor and Creditor created by deposit of fund in bank. Bank v. Brewing Co., 33 N. E. 1054; Dabney v. Bank, 3 S. C. Í24; In re Madison Bank. Fed. Cas. No. 890; Mathews v. Creditors, 10 La. Ann. 344; Baker v. Kennedy, 53 Tex. 200.</p> <p>A court of equity can only decree on a case made by the-pleadings. Truslow v. Bridge Co., 57 S. E. 51; Welfley v-Shenandoah, etc., Co., 3-S. E. 376.</p> <p>Sufficiency of pleadings and proof to establish the trust fund. Stevens v. Williams, 91 Wis. 58; 64 N. W. 423; and cases cited; Henry v. Martin, 88 Wis. 367; 60 N. W. 363 and eases cited; In re Irish Amer. Bank, 73 N. W. 6.</p> <p>Burden is upon one seeking to fix trust. In re Irish Amer. Bank, 73 N. W. 6, 70 Minn. 238; Bank v. Bank, 15 Fed. 858.</p> <p>111. Buie. Trust funds can be followed only when they can be distinguished from other property. Moniger v. Security T. & T. Co., 90 111. App. 246; Union Natl. Bank v. Goetz, 138 111. 127; Wetherill v. O’Brien, 140 111. 146; Bayor v. Amer. T. & Sav. Bank, 157 111. 62; Lauterman v. Traveous, 73 111. App. 670, affirmed in 174 111. 459.</p> <p>Not recoverable unless they can be distinguished from other money. Whitecomb v. Jacob, 1 Salk 160; Taylor v. Plummer, 3 Maulé & S. 574; Ex parte Dale, 2 Ch. Div. 772; Billingsley v. Pollock, 69 Miss, 759, 13 So. 828; Bank v. Davis, 115 N. C. 226, 20 S. E. 370; Lebanon Trust & Saf. Dep., etc., 166 Pa. St. 622, 31 Atl. 334; 3 Story Eq. Jur., sec. 1258, 1259; 2 Pom. Eq. Juris., sec. 1051, 1058.</p> <p>Can be recovered, though mixed, if identical money of the trust fund is in the mixture. Bank v. Dowd, 38 Fed. 172; Met. Nat. Bank v. Campbell Com. Co., 77 Fed. 705 and cases cited; Bank v. Lattimer,' 67 Fed. 27; Spokane Co. v. First Nat. Bank, 68 Fed. 979 and cases cited.</p> <p>Or if there has always remained on hand a balance of the mixture equal to the amount of-the trust fund which originally entered into the mixture. Gavin v. Gleason, 105 N. T. 256, 11 N. E. 504; Silk Co. v. Flanders, 87 Wis. 237, 58 N. W. 383; Bank v. Weems, 69 Tex. 489, 6 S. W. 802; Knatchbull v. Hallett, 13 Ch. Div. 696.</p> <p>Cestui qui trust has a lien on the general assets of that estate. Harrison v. Smith, 83 Mo. 210; Peak v. Ellicott, 30 Kan. 156, 1 Pac. 499; People v. City Bank, 96 N. Y. 32; McLeod v. Evans, 66 Wis. 401, 28 Ñ. W. 173, 214.</p> <p>Bank collecting money for another holds the same as trustee for owner. Assoc, v. Morris, 36 Neb. 31, 53 N. W. 1037.</p> <p>Trust funds can be followed by cestui quo trust. Italian Fruit & Imp. v. Penniman, 61 Atl. 694, 100 Md. 698, 1 L. E. A. n. s. 252, and cases cited in note; Jones v. Ohesebrough, 105 la. 303, 75 N. W. 97; Northern Dakota Elev. Co. y. Clark, 3 N. Dak. 26, 53 N. W. 175; State v. Bank of Commerce, 54 Neb. 725, 75 N. W. 28; Wood-house y. Crandall, 197 111. 104-, 64 N. E. 292; 58 L. E. A. 385; Board of Fire, etc., v. Wilkinson, 44 L. E. A. 493, (Mich.); Shute v. Hinman, 56 Pac. 412, 34 Ore. 578; affirmed 58 Pac. 882, 47 L. E. A. 265; Bruner v. First Nat. Bank, 34 L. E. A. 532, (Tenn.) ; Crawford Co. v. Strawn, 15 L. E. A. n. s. 1100; Sayles v. Cox, 32 L. E. A. (Tenn.), see case note; Boone County Nat. Bank v. Latimer, 67 Fed. 27.</p> <p>When bank fails the cestui que trust must prove-his claim as a general cerditor. Dowie v. Humphrey, 91 Wis. 98, 64 N. W. 315.</p> <p>Equality is equity in distributing insolvent estates. Burnham v. Barth, 89 Wis. 367-370, 62 N. W. 69; Silk Co. v. Flanders, 87 Wis. 237, 58 N. W. 383; In re Plankington Bank, 87 Wis. 378, 58 N. W. 784; Henry v. Martin, 88 Wis. 367, 60 N. W. 263; Thuemmler v. Barth, 89 Wis. 381, 62 N. W. 94.</p> <p>Bank, as agent, mixing trust funds with its own. In re Johnson, 103 Mich. 109, 61 N. W. 352, and cases cited; Enright v. Earling, 134 Wis. 565, 115 N. W. 128, 27 L. E. A. n. s. 243; York v. York Market Co., 37 Atl. 1038.</p> <p>Court cannot presume anything which appellee has had no opportunity to deny. Truslow v. Bridge Co., 57 S. E. 51; Welfley v. Shenandoah I. L. M. & M. Co., 3 S. E. 376.</p>

McClure, District Judge; All laws of -the Territory in force at time of admission into the Union, not inconsistent with the Constitution, remain in force. Const., art. XXII, sec. 4; People v. County Conxmrs. of Grand Co., 6 Colo. 202; State v. Edwards, (Mont.) Ill Pac. 734; Ex parte Schriber, (Idaho(, 114 Pac. 29; Lace v. People, (Colo.) 95 Pac. 302; State v. Dircks, (Mo.) Ill S. W. 1; Cahoon v. Commonwealth, 20 Grat.

Abbott, District Judge; Did the legislature of 1912 put the money, specified in chapter 135, Laws 1909, beyond the control of the auditor and treasurer so far as the continuance of payments is concerned? Laws 1905, ch. 5; Laws 1909, ch. 135; Const., art. IV, sec. 30; Session Laws 1912, ch. 83. Construction of statutes.

<p>Error to the District Court of Colfax County; Thomas D. Leib, District Judge;</p>

Leib, District Judge; Indictment defective in not containing the word “ravish.” Bishop Crim. Pro. (4th ed.) sec. 335 and citations; Territory v. Cortez, 15 N M. 92. Proof necessary to establish guilt of defendant. People v. Howard, 76 Pac. 1116, (Cal.);- State v. Dalton, 17 S. W. 700; State v. Donnington, 151 S. W. 975; State v. Grubb, 41 Pac. 951; People v. Seaman, 137 N. Y. Sup. 294; People v. Kline, N. Y. Sup. 296.

<p>Appeal from the District Court of Sierra County; Merritt C, Meehem, District Judge;</p> <p>Statute contemplates a tender of the purchase money paid at the execution of the sale with legal interest thereon, coupled with the demand for a release, or a reconveyance in case the land has been conveyed. Wheeloek v. Tenner, 39 N. Y. 481; Storey v.' Krewson, 55 Ind. 397, 23 Am. Rep. 668; Buffum v. Buffum, 11 N. H. 451; Strafford v. Welch, 59 N. H. 46; Holpin v. Phoenix Ins. Co., 118 N. Y. 165, 23 N. E. 482; Englebach v. Simpson, 12 Tex. Civ. App. 188, 33 S. W. 596-600; McKelvain v. Allen, 58 Tex. 387; Lundy v. Pierson, 67 Tex. 237, 2 S. W. 737; Hamblen v. Eolts, 70 Tex. 135, 7 S. W. 834; McPherson v. Johnson, 69 Tex. 487, 6 S. W. 798; Kauffman v. Brown, 83 Tex. 45, 18 S. W. 425; Willis v. Sommerville, 3 Tex. Civ. App. 509, 22 S. W. 781; Poster v. Andrews, 4 Tex. Civ. App. 329, 23 S. W. 610; But, Halfin v. Winkleman, 83 Tex. 165, 18 S. W. 433; Flower v. Elwood, 66 111. 439; Walling v. Kinnard, 10 Tex. 509.</p> <p>Equity would compel the mortgagee to remove the cloud by executing a release, after the mortgage lias been discharged. Brown v. Stewart, 56 Md. 421; Bedmond v. Packenham, 66 111. 437; Frederick v. Ewrig, 82 111. 363; Smith v. Van Campen, 40 Iowa 411; Kent v. Church of St. Michael, 136 N Y. 10, 32 N. E. 704; Allen v. Waldo, 47 Mich. 516, 11 N W. 366; Stanley v. Valentine, 79 111. 544; Brewton v. Smith, 28 Ga. 442; Eckman v. Eckman, 55 Pa. St. 269; Pratt v. Pond, 5 Allen 59; Williams v. Williams, 7 Baxt. 116; Vardeman v. Lawson, 17 Tex. 18; Lick v. Bay, 43 Cal. 83.</p> <p>Tender made upon condition that a release of the vendor’s lien be delivered upon final payment of the purchase money was valid. Johnson v. Grange, 45 Mich. 18, 7 N W. 188; Wheelockv. Tanner, 39 N. Y. 486; Mankel v. Belscamper, 84 Wis. 218, 54 N. W. 500; Strafford v. Welch, 59 N. II. 46; Loughborough v. McNevin, 74 Cal. 250, 14 Pac. 369; 15 Pac. 773; Haljiin v. Insurance Co., 118 N Y. 475, 23 N E. 482; Bailey v. Buchanan Co. (N. Y. App.) 22 N. E. 155; Brock.v. Jones Exec’rs., 16 Tex. 467; Wood v. Hitchcock, 20 Wend. 47; Bichardson v. Jaelrson, 8 Mees. & W. 298; 8 Dowl. 442; Bowen v. Owen, 11 Q. B. 131; Chit. Cont. 694.</p> <p>Tender stopped the subsequent interest and carried with it the cost of suit. Brock v. Jones, 16 Tex. 468; Fisk v. Holden, 17 Tex. 414; Biley v. McNamora, 83 Tex. 14, 18 S. W. 141; 25 Am. & Eng. Ene. L. 926; Tasker v. Bartlett, 59 Mass. 362; Bailey v. Buchanan, (N Y.) 6 L. B. A. 466.</p> <p>Purchaser of land at an execution sale takes at his peril. Statute controls as to demands and tender. C. L. 1897, sec. 2136; Milner v. Kettig, 43 Neb. 192, 47 Am. St. Bep. 748; Frost v. Atwood, 73 Mich. 67, 16 Am. St. Bep. 563-4; Norton v. Neb. L. & T. Co., 35 Neb. 456, 37 Am. St. B. 443; Mackenna v. Fidelity T. Co., 184 N. Y. 411, 112 St. B. 626; Sheppard v. Clark, 58 la. 371, 12 N. W. 316; Pelloek v. Douglas Countj, 39 Neb. 293, 42 Am. St. B. 582-9; Lynde v. Inhabitants of Melrose, 10 Allen 49; Harper v. Bowe, 53 Cal. 238; Harding v. Harding, 16 S. Dak. 406, 102 Am. St. E. 700; Stone v. Gardner, 20 111. 304, 71 Am. Dec. 270.</p> <p>Purchaser of land at execution sale may recover, money paid by -him to raise liens and incumbrances: Annual assessment work cannot be construed to be a lien or incumbrance subject to which the land was sold. C. L. 1897, sec. 3126; 2 Lindley on Mones, sec. 624, (p. 1152); Chambers v. Harrington, 111 H. S. 353, 28 L. Ed. 453; Beals v. Cone, 27 Col. 473, 83 Am. St. E. 99; 27 A. & E. Ene. L., sec. 202 and cases cited; Erost v. Atwood, 73 Mich. 67, 16 Am. St. E. 563.</p> <p>Plaintiff corporation not liable to defendant corporation for assessment work done in years 1908, 1909 and 1910. 27 Cyc. 836; 1 Snyder on Mines, sec. 489; Clark on Contracts, p. 763.</p> <p>An offer to make conditional tender if refused, relieves duty of actual tender. McPherson v. Eargo, (S. Dak.), 66 Am. St. E. 723; Hoffman v. Yan Dieman, 62 Wis. 362, 21 N. W. 542; Cleveland v. Eothwell, 66 N. Y. Sup. 242; Baumann v. Pinckney, 118 N. Y. 604, 23 N. E. 916; Appleton v. Donaldson, 3 Pa. St. 381; Behaly v. Hatch, Walker, 369, 12 Am. Dec. 570; Johnson v. Cranage, 45 Mich. 14; Brewer v. Fleming, 51 Pa. St. 102; Adams v. Helm, 55 Mo. 468; Thorne v. Mosher, 20 N. J. Eq. 257; Borden v. Borden, 4 Am. Dec. 32; Lambert v. Miller, 38 N. J. Eq. 117; Ashburn v. Poulter, 35 Conn. 553.</p> <p>Tender was kept good. C. L. 1897, sec. 2685; Cheney v. Libby, 134 H. S. 68, 33 L. Ed. 825; 74 Fed. 52, 20 C. C. A. 291, 36 H. S. App. 720; Curtis v. Greenbanks, 24 Hah 536; Parker v. Beasley ,116 N. C., 1 L. E. A. 231; German-Ameriean Ins. Co. v. Johnson, 45 Pae. 975; Durham v. Linderman, 64 Pac. 17; Cain v. Gimon, 36 Ala. 168; Breitenbach v. Turner, 18 Wis. 140.</p> <p>Eedemptioner is not required to go without the jurisdiction to redeem. Southworth v. Smith, 61 Mass. 393-4; Borden v. Borden, 5 Mass. 67; Gilmore v. Holt, 4 Pick. 258; Tasker v. Bartlett, 5 Cush. 359; Putnam v. Sullivan, 4 Mass. 45; Widgery v. Monroe, 6 Mass. 449; Hale v. Burr, 12 Mass. 86; Lehman v. Collins, 69 Ala. 127; Houbie v. Colkening, 49 How. Prae. 169; Morton v. Wells, 1 Tyler, (Yt.) 381; Hale v. Patton, 60 N. Y. 233, 19 Am. R. 168.</p> <p>Court erred in sustaining defendant’s objection to questions on cross-examination. In re Mason, 60 Hun. 46, 14 N. Y. Sup. 434; Jackson v. Feather River & Co. Co., 14 Cal. 18; Wilson v. Dunreath Red Stone Q. Co., 77 la. 429, 42 1ST. W. 360, 14 Am. St. R. 304; Lynch v. Free, 64 Minn. 277, 66 N W. 973.</p> <p>A tender to be valid must be made in good faith. Pulsifer v. Shepard, 36 111. 513; Knight v. Abbott, 30 Yt. 577; Dock v. Brason, 91 Pac. 1068; McPherson v. Wis-well, 21 N. W. 391; Grace v. Means, 59 S. E. 811.</p> <p>Person to whom tender is made must be given reasonable time to make calculations before accepting or making suggestions. Enc. of Ev., p. 492; Potts v. Plaisted, 30 Mich. 149; Leiferts v. Dolton, 56 Atl. 527.</p> <p>Plaintiff demanded immediate release of property, which, under the circumstances, showed that tender was not made in good faith. Malóne v. Wright, 34 S. W. 455; Moore v. Norman, 43 Minn. 428; Tuthill v. Morris, 81 N. Y. 94; Story v. Krewson, 55 Inch 397; Mulder v. Seelye, 8 Barb. 408; Nelson v. Robson, 17 Minn. 284; 11 Cyc. 1337, note 78; Moore v. Norman, 18 L. R. A. 259.</p> <p>Tender bad because conditioned upon a reconveyance. Tuthill v. Morris, 81 N. Y. 94; Lilienthal v. McCormick, 117 Fed. 96.</p> <p>Tender must be full, clear and satisfactory — offer to pay not sufficient and not conditioned. Potts v. Plaisted, 30 Mich. 149; Knight v. Abbott, 30 Vt. 577; Lilienthal v. McCormick, 117 Fed. 89; Beardsley v. Beardsley, 86 Fed. 20; Robinson v. Cook, 6 Taunt. 336; L’Hommedieu v. Dayton, 38 Fed. 926; Coghlan v. South Car. R. Co., 32 Fed. 316; Perkins v. Beck, 4 Cranch. C. C. 68; Harden v. Dollins, 138 Ala. 399, 35 So. 357, 100 Am. St. R. 42; Commercial Fire Ins. Co. y. Allen, 80 Ala. 571; Jones y. Shaey, 40 Pac. 17; Perkins y. Maier & Zobelin Brewery, 134 Cal. 372, 66 Pac. 482; Barnhart y. Fulketh, 73 Cal. 526, 15 Pac. 89; People y. Harris, 9 Cal. 571; Butler v. Hinckley, 17 Colo. 523, 30 Pac. 250; Mitchell, y. Pierson, 34 Colo. 278, 82 Pac. 446; Sands y. Lyon, 18 Conn. 18; Sanford y. Bulkey, 30 Conn. 344; Hall v. Norwalk Fire Ins. Co., 57 Conn. 105, 17 Atl. 356; Chandler & Wittich y. Wright, 16 Fla. .510; Morris y. Continental Ins. Co., 116 Ga. 53, 42 So. 474; Elder y. Johnson, 115 Ga. 691, 42 S. E. 51; DeGraffenreid y. Menard, 103 Ga. 651, 30 S. E. 560; Hess v. Peck, 111 111. App. Ill; Conn. Mut. Life Ins. Co. y. Stinson, 86 111. App. 668; Berger y. Peterson, 78 111. 633; Pulsifer y. Shepard, 36 111. 513; Martin y. Bott, 17 Ind. App. 444, N. E. 151 Bowen y. Julius, 141 Ind. 310, 40 N. E. 700; West y. Farmers Mut. Ins. Co., 117 la. 147, 90 N. W. 523; Shuch y. C. B. I. & P. B. Co., 73 la. 333, 35 N, W. 429; Hopkins y. Gray, 51 Towa 340, 1 N. W. 637; Kuhns y. Chicago, M. & St. P. B. Co., 65 la. 528, 22 N. W. 661; Latham y. Hartford, 27 Kans. 249; Loeing y. Cooke, 3 Pick. 48; Thayer v. Brackett, 12 Mass. 450; Eichardson y. Chemical Lab., 9 Mete. 42; Potts y. Plaisted, 30 Mich. 149; Moore y. Norman, 43 Minn. 428, 9 L. E. A. 55; Harrhon y. Magee, 57 Miss. 410; Henderson y. Cass County, 107 Mo. 50, 18 S. W. 992; McElden y. Patton, 93 N. W. 938; Schrant y. Young, 62 Neb. 254, 86 N. W. 1085; TePoel v. Sehutt, 57 Neb. 592, 78 N. W. 288; Whittaker y. BeMdere Boiler-Mill Co., 55 N. J. Eq. 674, 38 Atl. 289.</p> <p>If, accompanying tender, there is a demand either express or implied of a receipt in full, it will not be a sufficient tender. Sanford y. Bulkley, 30 Conn. 344; Lindsey y. Matthews, 17 Fla. 575; Eichardson y. Chemical Co., 50. Mass. 42; Dodge y. Brewer, 31 Mich. 227.</p> <p>Party making tender cannot impose condition. Noyes v. Wykoff, 114 N. Y. 207; Beardsley y. Beardsley, 86 Fed. 22.</p> <p>Statute shows that tender must be unconditional. C. L. 1897, sec. 3126.</p> <p>Where there is a dispute as to the amount that is due, the debtor cannot demand a. release or a receipt in full. Noyes v. Wykoff, 114 N. Y. 207; Henderson v. Cass County, 18 S. W. 992; Beardsley v. Beardsley, 86 Fed. 22; Boring v. Cooke, 3 Peck. 48; Richardson v. The Boston, etc., 50 Mass. 52; Sanders v. Bryer, 9 L. R. A. 255, 152 Mass. 141; Welch v. Adams, 9 L. R. A. 244, 152 Mass. 74 and cases cited above.</p> <p>Statutes of redemption are construed strictly. Kneely v. Sanders, 99 U: S. 441, 25 L. Ed. 328; Parker v. Dacres, 130 H. S. 43; Lynch v. Burt, 132 Fed. 429; Parker v. Dacres, 130 H. S. Sup. 43; State v. O’Connor, 6 N. Dak. 285, 69 N. W. 692; Cameron v. Adams, 31 Mich. 426; Ladd v. Mason, 10 Ore. 308; Loring v. Cook, 3 Pick. 48; Noyes v. Wykoff, 114 N. Y. 204.</p> <p>Must have the money to make valid tender. Ladd v. Mason, 10 Ore. 308; Leask v. Dew, 92 N. Y. Sup. 891; Selby v. Hurd, 16 N. W. 180; Lilienthal v. McCormick, 117 Fed. 96; DeWolfe v. Taylor, 33 N. W. 154; Enc. of Evidence 12, 499.</p> <p>Burden is upon the person pleading tender. Davies v. Dow, 83 N. W. 50; Pulsifer v. Shepard, 36 111. 513; Otis v. Boston, 10 N. II. 433; King v. Finch, 60 Inch 420; Benson v. Howe, 47 N. W. 449; Butlfer v. Hannah, 15 So. 641; Engle v. Hall, 17 N. W. 239; Proctor v. Robinson, 35 Mich. 284.</p> <p>To establish tender the party bearing the burden must show the production and proffer of the money. Enc. of Evidence, vol. 12, p. 482; McCally v. Otey, (Ala) 42 Am. St. R. 90; Arrowsmith v. VanHarlingen Exs., 1 N. J. L. 26; Tuthill v. Morris, 81 N. Y. 94.</p> <p>Appellant could not demand that the property be fully released. 11 Cye. 1337, note 38 and cases cited.</p> <p>There being evidence to support the finding of the lower court, and when the preponderance of the evidence shows that no tender was made, the judgment of the court below will be sustained on appeal. Scheurman'v. Slyninger, 90 N. W. 292; Leach v. California, 66 Pac. 786; Moyle v. Hocking, 51 Pac. 533; Com. Bank v. Liewaller, 46 Pac. 1020; Randall y. Shaw, 28 Kans. 419; Natl. Mort. Co. v. Lash, 47 Pac. 548; Flynn v. Waeker, 52 S. W. 342; Stamm v. Albuquerque, 62 Pac. 973; Eastman v. Gurrey, 49 Pac. 310; Sabin v. Bushe, 37 Pac. 352.</p> <p>Mere written proposal of payment, unaccompanied with production of the sum of money, is not good tender. Angier y. Building Assn., 35 S. E. 64; Cheilorick v. Krauss, 11 Pac. 781; Kuhns v. Ry Co., 22 N. W. 661; Court v. Johns, 53 Pac. 601; Holt v. Brown, 19 N. W. 235; Iiyams v. Bomberger, 36 Pac. 202; Shugart v. Pattee, 37 Iowa 432.</p> <p>The party making the tender must place the money in such a position that his control over it is relinquished for ■a sufficient time to enable the other party to reduce it to possession by merely reaching out and laying hold of the money. Sands v. Lyons, 18 Conn. 18.</p> <p>Adequate and, definite sum not tendered. Knight v. Abbott, 30 Yt. 577; State v. Spicer, 4 Houst. (Del.) 100.</p> <p>Formal technical tender not dispensed with. Lowe v. Harwood, 29 N. E. 538; Brown v. Davis, 138 Mass. 458; Crist v. Amour, 34 Barb. 378; Frost v. Clarkson, 7 Cow. 24.</p> <p>Party making tender must seek the other party and make tender where he can be found. Leahman v. Moore, 9 So. 590; Bancroft v. Tawin, 9 N. E. 539; Leird v. Smith, 44 N. Y. 618. Debtor must make inquiry. Bigsby v. Whitney, 5 Me. 192; White v. Perley, 15 Me. 470.</p> <p>Tender on condition. Hepburn v. Auld, 1 Cranch. 321; Perkins v. Bank, 19 Fed. Cas. 10984; Comm. Co. v. Allen, 1 So. 202; Jacoway v. Hall, 57 S. W. 12 ; West v. Ins. Co., 90 N. W. 523; Sanford v. Bulkley, 30 Conn. 344; Holton v. Brown, 46 Am. Dec. 148.</p> <p>Waiver of tender cannot be established by requiring appellee to state whether, if made, he would have received it. Bluntzer v. Dewese, 15 S. W. 29.</p> <p>Tender of larger amount than is due, coupled with an express or implied request for change, is bad. Patterson v. Cox, 25 Ind. 261; Perkins v. Beck, 19 Fed. Cas. 10984.</p> <p>No error in sustaining objection' to cross-examination. Wills v. Russell, 100 U. S. 621; Houghton v. Jones, 17 L. Ed. 603; Foster v. U. S., 178 Fed. 169; Northern Pae. v. Hrlin, 168 H. S. 271.</p> <p>STATEMENT OP PACTS.</p> <p>This case arises out of a sale of certain mining property by the Sheriff of Sierra County, under a writ of venditioni exponas, who conveyed the same to the Shandon Mining Company on October 17th, 1907. On September 21st and 22nd, 1908, William Palmer, Jr., a stockholder of the plaintiff corporation, appellant here, took. certain steps looking to the redemption of said mining property from the sheriff’s sale referred to, which, as testified to by Palmer, were as follows:</p> <p>“I presented Mr. Parker with a written proposition for redemption and took the money and told him, as president of the Hnion-Esperanza Mining Compan}', I made a tender on behalf of that Company to the Shandon Mining Company for the mining claims named, the ones that his company had bought at Sheriff’s sale, October 19th, 1907. I took the money out and showed it'to Mr. Parker — ”</p> <p>Palmer also testified that he offered the amount they were legally entitled to, which he understood to be “the amount they paid at the sheriff’s sale, and interest at the rate of 6% per annum.” He testified that he said he would be willing to pay for any assessment work done upon the claims in 1907 and 1908; that he had $3000.00 in actual cash; that he wanted the property released; that on the 10th day of October, 1908, he made a tender to Mr. Doran, as statutory agent of the Shandon Mining-Company, at Shandon, New Mexico, but without describing the nature of such tender other than his statement that “I said to Mr. Doran what I said to Mr. Parker, using the same language.”</p> <p>The written proposal referred to is as follows:</p> <p>“El Paso, Texas, September 21, 1908.</p> <p>“Mr. Morris B. Parker,</p> <p>“Vice President Shandon Mining Company,</p> <p>“or J ames H. Parker, General Manager and Treasurer, “Shandon Mining Company, El Paso, Texas.</p> <p>“Dear Sir:—</p> <p>“As president of the Union-Esperanza Mining Company, and on behalf of said Company, I hereby tender you the money due in order that the Union-Esperanza Mining Company may redeem from the Shandon Mining Company, the Placer Mining Claims which the said Shandon Mining Company bought at Sheriff’s sale on the 19th day of October, A. D. 1907, that is to say, the San Miguel; the Union; the Esperanza and the Cayuga Chief Placer Mining Claims, situated near Apache Canon, Sierra County, New Mexico.</p> <p>(Signed) “Wm. Palmer, Jr.,</p> <p>“President Union-Esperanza Mining Company.”</p> <p>Mr. Palmer also testified that he would not have delivered the money unless the defendant corporation had released the property or conveyed it by deed to the plaintiff corporation; that he offered $2200.00 and pay for the assessment work, that Parker demanded $3200.00.</p> <p>The witness, Merrell, accompanied Palmer on two occasions when the alleged tender was made by Palmer, to Parker, but in his testimony could not state that Palmer had any definite sum of monej, other than that on the first occasion he had two thousand dollars. He further testified that Palmer demanded the deed and said he was ready to pay the money on surrendering the deecl. Mr. James H. Parker, an officer of the Shandon Mining Company, to whom the alleged tender was made, testified that Palmer did not offer or tender any money to him for the redemption of the property at the time of his first visit to him; and, that amounts mentioned by the witness were not acceptable to Parker; that he informed Palmer that the officers of the Company were in West Virginia and it would be necessary to consult them, which he would do by wire; that Mr. Palmer demanded a deed and it was impossible for him to give one; that Palmer returned again, the same day, after arrangements were made to have the attorney for the Shandon Mining Company present, on which occasion Palmer was repeatedly told to get his money, and stated that he did not have it with him; that on the following morning another meeting was had, when Palmer again demanded a release and deed to the property, talcing what the witness supposed was some money from his right hand pocket, putting it in his left hand and then putting it into his left hand pocket. The alleged tender by Palmer, as testified to by this witness, was in this language:</p> <p>“I want a deed; I want it now and will give you three days to get the deed; when you give me the deed I will give you the money, whatever is necessary.”</p> <p>According to this witness the entire matter hinged upon a release in full, which the witness was unwilling to give unless reimbursed fpr certain expenses incurred since the sheriff’s sale.</p> <p>Mr. W. H. Winter testified that he was attorney for the Shandon Mining Company, at the time of the alleged tender by Palmer, concerning which he testified as follows:</p> <p>“Mr. Parker told me Mr. Palmer had come there and stated he wanted to redeem the property; he had refused to fix any amount he was willing to tender, and that Mr. Palmer wanted a deed for the property and also wanted a statement from the company as to all the sums that had been paid out at the execution sale, and wanted a release in full of all the amounts due. I told Mr. Palmer at that time that I was authorized to act for the company in that matter and &nj tender he wanted to make he should make to me. I also stated, at that time, that unless he paid the full amount to the company, the company would not give him a release in full for all that had been paid,out on the property; that if he wanted he could make a tender of the amount he claimed was due and the matter of the deed would have to be taken up with the officers of the company * * * * that I had no authority to execute the deed. Mr. Palmer talked on about a great many matters and stated he thought he ought to be permitted to redeem the property upon payment of the amount that was paid out at the execution sale, with interest, and that we ought to give him a receipt in full of all claims which we made by reason of having paid out money on the property, or otherwise. I told him that we could not do it; that I was authorized to receive the tender, but not to execute a receipt in full. * * * * finally I did say, ‘Mr. Palmer, I will be here in the morning, if you are not ready to make the tender now. I will be in my office tomorrow all day.’ He said he was going to remain'over, that he could see me there any time and then he kept on talking about having the money and paying it out to redeem the property and finally I did say, ‘Mr. Palmer, get the money; the money looks good to the Company/ or words to that effect. Mr. Palmer has never at any time made any tender to me. He has never asked for a deed since that evening, but did at that time demand both a deed and receipt in full for all sums that the company had paid out.”</p> <p>The trial court found that the plaintiff failed to redeem the property within the time required by law, and further that plaintiff failed to malre a legal tender to the defendant of any money necessary to redeem said property from the sheriff’s sale.</p> <p>’ This suit was brought to redeem the property described in the complaint and concerning which the alleged tenders were made, and was tried by the court without a jury, the judgment being for the defendant company, from which said judgment this appeal was taken.</p>

<p>Appeal from the District Court of Santa Fe County; Edmund C. Abbott, District Judge;</p> <p>Incorporation laws. Laws 1905, chap. 79; Laws 1899, chapter 72.</p> <p>Chapter 72, Laws of 1899, is penal. ' Territory v. Davenport, 124 Pac. 795. Must be strictly construed. U. S. v.' Lucero, *1 N. II. 422; U. S. v. Santistevan, 1 N. M. 583; Esquibel v. Chaves, 12 N. M. 482.</p> <p>Chapter 72, Laws 1899, copied from Colorado law enacted in 1897. Bev. Stat. of Colo., secs. 950-968; Bremen Min. Co. v. Bremen, 13 N. M. 126; Bomero v. Bailroad, 11 N. M. 688; DeBaca v. Wilcox, 11 N. M. 352; Perea v. Colo. Nat. Bank, 6 N. M. 4; Lutz v. A. & P. By. Co., 6 N. M. 500; Beymond v. Newcomb, 10 N. M. 173; Columbia B. & L. Assn. v. Lyttle, 16 Colo. App. 423.</p> <p>Controlling principle of the appellant is mutuality among its shareholders. Columbia B. & L. Assn., v. Lyttle, 16 Colo. App. 423; People’s B. & L. Assn. v. Purdy, 20 Colo. App. 287.</p> <p>But, the relation of appellant, Standard Home Company, is not mutual. State v. Polk, State Treas. (Tenn.) 135 S. W. 776; People’s B. & L. Assn. v. Purdy, 20 Colo. 287; Askoj v. Fidelity, etc., Assn., 37 Colo. 432; Eversman v. Schmitt, 53 Ohio St. 174, 41 N. E. 139, 29 L. B. A. 184; Columbia B. & L. Assn. v. Junquist, 111 Fed. 645; King v. Inter. B. & L. Co., 170 111. 135, 48 N. E. 677; Wierman v. Inter. B., etc., Union, 67 111. App. 550.</p> <p>“All members must participate equally in the profits and bear the losses, if any, in the same proportion. This is the fundamental law of building and loan associations organized under the different statutes throughout the Union.” Bertche v. Equitable L. & Inv. Assn., 147 Mo. 343, 48 S. W. 954; Hawley v. North Side B. & L. Assn., 11 Colo. App. 93; International Imp. Co. v. Wagner, 125 Pac. 597; State of Tenn. ex Standard Trust Co., v. Folk, 135 S. W. 776; McCauley v. B. & L. Assn., 97 Tenn. 421, 31 L. B. A. 244; Setliff v. Nashville, etc., Assn., 39 S. W. 546; 20 Ann. Cas. 1253, note; 4 A. & E. Enc. of Law, (2nd ed.) 1026; Cook v. Equitable B. & L. Assn., 104 G-a. 814; Towle v. Am. B., L. & Inv. Co., 61 Fed. 446; Albany Mut. B. Assn. v. City of Laramie, 65 Pac. 1911; Ehodes v. Missouri Sav. Co., 173 111. 629; Maroney, Jr., V. Atl. B. & L. Assn., 116 N. C. 822.</p> <p>While decisions rendered after the adoption of a statute are not of the same binding effect as decisions rendered prior to such adoption, they are nevertheless of strongly persuasive effect. 'Harrison v. Hill, 37 111. App. 30; Northcut v. Eager, 132 Md. 265, 33 S. W. 1125; Myers v. McGavock, 39 Neb. 843, 58 N. W. 522; Olin v. Denver & E. G. E. Co., 25 Colo. 177, 53 Pac. 454; Attorney Gen. v. Pitcher, 183 Mass. 513.</p> <p>“A contract entered into with a building and loan association organized under the laws of this state by and through which it may be enabled to evade the statute and loan its funds to a person, not a member or a shareholder Of the association, is invalid and non-enforeeable. National Inv. Co. v. National Sav. B. & L. Assn., 49 Minn. 517.</p> <p>Foreign building and loan associations are governed by chapter 72 of laws of 1899. Standard Home Company is a- foreign association and by the “participating plan” cannot evade the statute. State v. Standard Co., 103 Pac. 1007.</p> <p>“Similar” in a statute does not mean “identical.” Greenleaf v. Goodrich, 101 U. S. 278, 282-3-4; Trust 'Co. v. Olney, 16 E. I. 185-6.</p> <p>Eepeal of sections 1 to 14 and section 19 of chapter 72 of the law of 1899, leaving sections 15 to 18, both inclusive, in force, and also section 20, does not destroy legislative intent as to governing foreign associations, without reference to section 1 of that act. 2 Sutherland Stat. Const., sec. 452; Ogden v. Boreman, 20 Utah 98.</p> <p>STATEMENT OP PACTS.</p> <p>On December 14, 1911, plaintiff, a corporation organized under the laws of the State of Delaware, made application to Secretary of the then Territory of New Mexico, for a certificate of qualification to permit it to transact business within New Mexico' under the provisions of the' General Incorporation Laws (chap. 79, laws 1905), making a tender of the necessary fees, etc.</p> <p>On December 21, 1911, the Secretary of the then Territory of New Mexico, officially declined to issue to plaintiff a certain certificate of qualification permitting it to so ■transact business within New Mexico, and on January 24, 1912, the State Corporation Commission ratified and confirmed such refusal on the' part of its predecessor.</p> <p>Thereafter, on July 3, 1912, plaintiff, through its counsel, filed in the office of the clerk of the District Court of Santa Fe County, an information in the nature of a petition for a writ of mandamus, directed to the State Corporation Commission, to compel that body to issue to it a certificate of qualification to transact business within New Mexico under the provisions of the General Incorporation Laws.</p> <p>The Attorney General voluntarily appeared in the said .■action and, waiving issuance of an alternative writ of mandamus, filed a demurrer to plaintiff’s petition, which was sustained by the District Court of Santa Fe Countjr, and on November 6, 1912, judgment was entered dismissing plaintiff’s petition and granting an appeal to this ■Court.</p>

Baynolds, District Judge; Contract of Water Company was with the City of Albuquerque and not with individuals, to supply water for extinguishing fires. Guardian Trust Co. v. Fisher, 200 H. S. 57; Judiciary Act 1789, chap. 20, sec. 34, (U. S.); Bevised Statutes (H. S.) section 721; Yol. 4, Ene. of TJ. S. Sup. Ct. Bep. 1049, and cases cited in note 86; Water Co. v. Freeport, 180 TJ. S. 595; Burges v. Seligman, 107 H. S. 20.

Raynolds, District Judge; Relator was entitled to a peremptory writ of mandamus, under the pleadings, when tire court found that she was discharged. Merrill on Mandamus, vol. 1, pages 293-294 and 353; Marshman v. Conklin, et al., 21 N. J. Eq. 548; Bachman v. Sepulveda, 39 Cal. 689. A judgment not supported by the pleadings is as fatally defective as if not sustained by verdict or findings.

Baynolds, District Judge; reversed and remanded. The cutting of the timber on sections 1 and 2 was never enjoined by legal process, as provided in the contract, Bodgers Locomotive Works v. Erie By. Co., 20 N. J. Eq. 379; 20 Enc. PL & Pr., 664. and cases cited; Perea-v. Harrison, 7 N. M. 666. No evidence to authorize submission to the jury of the question of plaintiff’s acquiescence or' waiver of rights under the contract. Hoxie v. Home Ins.

McClure, District Judge; Court erred in not selecting a jury as required by law. C. L. 1897, secs. 995, 997, 1001 and 1002; 7 How. Pr. 441. Jurynyen must be obtained from ballots, folded and placed in a box by the clerk, and not by calling the names, as they appear, in order, on the list of the special venire. Territory v. Carmody, 8 N. M. 376. Hearsay testimony is not admissible.

Edward L. Medler, District Judge; Valid sale of cattle in this state is accomplished by delivery of animals, accompanied by a written bill of sale-signed by vendor and acknowledged by him. C. L. 1897,. sec. 119; section 75 of the C. L. 1884 repealed by laws. 1895 (C. L. 1897, sec. 119.) Husband and wife may enter into contracts with each other. Laws 1907, chap. 37, see. 15. Bill of sale, Exhibit ‘‘D,” complies with statute. C. L.. 1897, s. 119.

Leib, District Judge; “The burden is upon the party, plaintiff or defendant, who asserts that a contract or conveyance was obtained by fraudulent representations, or that a will was obtained by fraud or undue influence.” Jones on Evidence, see. 190; Bank v. Lampierre, 4 P. C. 572; Wallace v. Mattice, 118 Ind. 59; Bowden v. Bowden, 75 111. 143; Betty v. Fishel, 100 Mass. 448; Smith v. Ogilvie, 127 N. Y. 143; Wellborn v. Tiller, 10'Ala. 305; Baldwin v. Parker, 99 Mass. 79.

McClure, District Judge; The subject of the act, “An Act to Provide for State License on Automobiles,” is clearly expressed in its title. Session Laws 1912, chap. 28; Commonwealth v. Gregg, 161 Pa. 586. The act in question is constitutional, viewed from any point. Cleary v. Johnston, 74 Atl. 538; Berry, Laws of Automobiles, par. 86; State ex rel. v. Hudson, 78 Mo. 302; State v. Hipp, 38 Ohio 225; State v. Unwin, 64 Atl. 163; 68 Atl. 110; Ivane v. Titus- 80,Atl. 453.

Parker, Associate Justice; The writing, Exhibit “A,” was not entitled to be admitted in evidence because not filed with cross-complaint. Session Laws 1907, chapter 107; 3 Wigmore on Evidence, secs. 1845 to 1860; 31 Cyc.'556; Code Civ. Pro. (N. M.) Ordinarily neither the verdict of a jury nor the findings of fact of a trial court will be disturbed in the appellate court when they are supported by any substantial evidence.

Abbott, District Judge; The valuation placed upon services of an attorney in this case is preposterous,and wholly unsupported by the evidence, and directly contrary to the law governing such cases. Thompson v. Burtis, 70 Pac. 603. The true rule, as to value, succinctly stated. Head v. Hargrave, 105 H. S. 45. In all cases tried by a jury the bill of exceptions must be signed, sealed and settled- by the trial judge, or his successor.

Raynolds, District Judge; Decision of the county commissioners, in view of the discretionary power vested in the board, is not reviewable on mandamus. Laws 1905, chap. 115, sec. 4; Dillon on Municipal Corporations, sec. 1489; Kimberlin v. Commission, 104 Fed. 563; Friel v. McAdoo, 181 N. Y. 588; Spelling, Extraordinary Bemedies, sec. 1368; 19 A. & E. Ene.

Original proceedings in the Supreme Court before Roberts, C. J., Parker and Hanna, Justices; Statutes involved herein. C. L. 1897, secs, 1054, 1055, 2871. In all the courts in this Territory the common law as recognized in the United States of America, shall be the rule of practice and decision. Leitsendorfer v. Webb, 1 N. M. 34; Montoya v. Donahoe, 2 N. M. 214; Terr. v. Max- ' well,-2 N. M. 250; C. L. 1897, sec. 3422.

Mechem, District Judge; Court erred in permitting tbe alleged statements of appellant before the coroner’s ¡jury to be used in evidence against him in the trial for murder. Const., Bill ol Bights, sec. 15; Hendrickson v. People, 10 N. Y. 13, 61 Am. Dec. 721; People v. McMahon, 15 N. Y. 384; People v. Mondon, 103 N. Y. 211, 57 Am.

Brief for Respondent and Appellant. Mounted Police Department created. Laws 1905, ch. 9- Amended by Laws 1909 ch, 127. Chap. 108, see. 12, Laws 1903; sec. 28, ch. 89, Laws-1907, and sec. 11, chap. 127, Laws 1909, not applicable because every legislature has passed a general appropriation bill. Appropriation made by legislature for the Mounted Police in 1912, ending December 1, 1913. No provision made since that time. Brief for Petitioner and Appellee.

Herbert F. Raynolds, District Judge; motion to dismiss denied. Brief on Motion to Dismiss Appeal. Statutes governing proceedings taken to revive causes. O. L. 1897, secs. 3091, 3092, 3093, 3094-, 3100. One who is not a party to the record cannot appeal any more than can a judgment be rendered against one who is not a party. Oj^c. p. 84-6; Judson v. Love, et al., 35 Cal. 464. Brief of Appellant on Motion to Dismiss.

<p>Appeal from District Court of Bernalillo County; Herbert F. Baynolds, District Judge;</p>

Raynolds, District Judge; Brief on Motion to Strike Certificate of Costs. Practice in this state requires the costs to be taxed prior to the filing of the transcript in the Supreme Court. Daily v. Fitzgerald, 130 Pac. 247-248. : Evidence introduced on a trial is not, ordinarily, a part of the record. 2 Cye. 1062; Laws 1907, ch. 57, sec. 24. Two requisites: 1, the stenographer’s notes must be transcribed; and, 2, .they must be properly certified by the court or referee.

Abbott, District Judge; Brief on Motion for Order Nunc pro Tunc. The Court having taken jurisdiction since its organization of writs issued by the clerk, it will be presumed that such procedure was allowed by direction of this Court. Bev. Stat. II. S., sec. 999. A writ of error is a writ of right and issues as of course, in the absence of statutory provisions or rule of the Court to the contrary. Van Antwerp v. Newman, 4 Cowen 82; 15 Am.

Medler, District Judge; Court erred in not granting a continuance of this cause on the motion -and affidavit of the defendant. Territory v. Leary, ...... N. M. 186; Territory v. McEarlane, 7 N. Mr 423; Territory v. Yee Dan, '7 N. M. 443; Texas, S. E. &■ N. 'Ey. Co. v. Saxon, 7 N. M. 304. Appellant was entitled to a jury from the vicinage, or the body of the County in which he was tried. Session-Laws 1905, ch. 116, sec. 12; Hewitt v. Saginaw, 71 Mich. 287; Houghton Comm.

McClure, District Judge; Appellee contends that he is entitled to be paid for legal services the amount of attorney’s fees provided for in the note. 17 Idaho 364, 106 Pac. 299, 27 L. N. S. Ill; Peacock, Hunt & West Co. v. Thaggard, 128 Eed. 1005; 'Camp v. Peacock, Hunt & West Co., 1-29 Eed. 1005, (affirmed) ; Watson v. Jones, 101 111.

the District Court of Eddy County; John T. McClure, District Judge; No action shall be brought upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement shall be in-writing, etc. Stat. Frauds, sec. 4. Statute of Frauds in force in New Mexico. Childers v. Talbot, 16 Pac. 275.

Original proceeding in the Supreme Court. Habeas Corpus. The court had power to provide that the commitment should not issue so long as the defendant remained outside of New Mexico. Gibson v. State, 68 Miss. 841; 12 Cyc. 773; State v. Whitt, 117 N. C. 804; Weaver v. People, 33 Mich. 296; Weber v. State, Ohio, 41 L. R. A. (N. S.) 427; People v. Forsyth, 23 L. R. A. (N. S.) 856; People v. Patrick, 118 Cal. 332; State v. Hatley, 110.

Mechem, District Judge; Statute under which the Justice of the Peace taxed costs against the prosecuting witness. Laws 1907, ch. 61, sec. 3. The person on whose oath of information any criminal prosecution shall have been- instituted shall be considered the prosecutor. C. L.' 1897, sec. 3441; 111. Central R. R. v. Herr, 54 111. 356, 359; State v. Millian, 3 Nev. 409; Philips v. Bevans, 23 N. J. L. (3 Zab) 373; H. S. vSandford, 27 Fed Cas. 952.

Raynolds, -District Judge. Court erred in failing to grant defendant’s motion for judgment, when plaintiff rested, having failed to prove its title to the property. C. L. 1897, sec. 3950; not repealed until 1901; Laws 1901, ch. 62, secs. 5, 6, and 32. It was an abuse of discretion by the Court to permit plaintiff to file its amended complaint.

Leib, District Judge; Court erred in assuming jurisdiction of this cause and forcing the defendant to- go to trial over his objection without a full panel; only twelve qualified jurors remained on the panel when case was called, when there should have-been twenty-four. Laws 1905, ch. 116, sec. 25. Twelve jurors of the regular panel-were disqualified by the trial of the case the day before, _which casé involved, same issues and between same parties. G-artwaite v. Tatum, 76 Am.

<p>Appeal from the District Court of Taos County; Thomas D. Leib, District Judge;</p> <p>There are no findings of facts; hence, the decree is inoperative. Luna v. Coal E. E. Co., 16 N. M. 71; Miles v. McCallan, 3 Pac. 610; Elder v. Frevert, 3 Pac. 237; Trustees v. Eetsch, 151 N. T. 321, 37 L. E. A. 305; Brock v. E. E. Co., 114 Ala. 431; Ehodes v. Bank, 66 Fed. 512, 34 L. E. A. 742; Searcy County v. Thompson, 66 Fed. 92.</p> <p>Mere conclusions of law, though called findings of fact, are not so. Murphy v. Bennett, 68 Cal. 528.</p> <p>So-called findings, if findings at all, are not founded on sufficient evidence. Millheiser v. Long, 10 N. M. 99; Potters v. Hewitt, 11 N. M. 1; Land Co. v. Gutierrez, 10 N. M. 177; Torlina v. Trorlicht, 6 N. M. 54; Light Co. v. Improvement Co., 16 N. M. 94; Eichards v. Pierce, 14 N. M. 334; Hancock v. Beasley, 14 N. M. 239; Eobero v. Coleman, 11 N. M. 537; Bush v. Fletcher, 11 N. M. 555; Carpenter v. Lincoln, 12 N. M. 388; Gale & Farr v. Salas; 11 N. M. 211; Ortiz v. Bank, 12 N. M. 519; Marquez v. Land "Grant, 12 N. M. 445.</p> <p>Duty of this Court to consider all of the facts in this case and enter such a decree as “may be agreeable to law.” Laws 1907, sec. 38, p. 116; Armijo v. Electric Co., 11 N. M. 250.</p> <p>Sufficient and substantial evidence. Jones on Ev. (2d ed.), p. 6; 37 Cyc. 506; Jenkins v. Alpena Cement Co., 147 Fed. 643.</p> <p>Admission by conduct. 1 Greenl. Ev. (16th ed.) sec. 195, and eases cited.</p> <p>Court should follow the principle that in equity the whole record will be considered without regard to findings of fact. 4 A. & E. Ene. L., p. 572; 13 A. & E. Ene. L., 570, 571, notes 7 and 8.</p> <p>A contract partly written and partly parol is not a written contract. Cunningham v. Fiske, 13 N. M. 331.</p> <p>Partnership agreement is within the Statute of Frauds. 22 Ene. L. (2d ed.) 67; Wilson v. Eay, 13 Ind. 1; Wahl v. Barnum, 116 N. Y. 87, 5 L. E. A. 623; Packet Co. v. Sickles, 5 Wall. 594.</p> <p>Such a partnership could be dissolved by either party at any time. Wahl v. Barnum, 5 L. E. A. 594.</p> <p>Even where a partnership is for a fixed term, one partner can dissolve it subject to liability for damages for breach of contract, unless circumstances are such as would entitle him to a decree of dissolution, but the remedy is at law. 30 Cyc. 651; Karriek v. Hannaman, 168 H. S. (L. Ed.) 484; C. L. 1897, sec. 2647; Benton v. Eoberts, 4 La. Ann. 2Í6; Murrell, v. Murrell, 33 La. Ann. 1233; Gillett v. Chaves, 12 N. M. 353.</p> <p>The word “should” is imperative. 36 Cyc. 434; Smith v. State, 142 Ind. 288; Lynch v. Bates, 139 Ind. 206. Fraser had a right to dissolve the partnership, if one, being accountable for damages only. 22 Ene. L. 205: 30 Cyc. 651, n. 8. '</p> <p>Eraser was within his rights when he modified the contract with Martin. 30 Cyc. 663, 688.</p> <p>In no event did the minds of Eraser, Bidwell and Probert meet upon a copartnership agreement which did not exclude from its operation the Manly deal. 1 Page on Contracts, sec. 28, et seq., secs. 55, 62, 74, 77, et seq.</p> <p>Duress, undue influence, gross inadequacy of consideration, etc., would render the deeds and copartnership agreement void. 1 Page on Contracts, secs. 221 to 235, inc.</p> <p>The deed and the partnership agreement construed together at most created a lien in favor of Bidwell and Probert. 2 Page on Contracts, see. 1123 and 1752.</p> <p>The law recognizes the right of a man to dispose of his property as he sees fit. Eyre v. Potter, 15 How. 59-60; French v. Shoemaker, 11 Wall. 333.</p> <p>Mere inadequacy of price is in itself no ground for setting aside a contract. Wharton on Contracts, sec. 165; Eyre v. Potter, 15 How. (H. S.) 42; Wharton on Contracts, sec. 518; Lee v. Kirby, 104 Mass. 420; Harrison v. Town, 17 Mo. 237; Davidson v. Little, 22 Penn. St. 245.</p> <p>All the contested facts material to the issue in this case have been found by the trial court and there is substantial and sufficient evidence to sustain the same. Miles v. Mc-Callan, 1 Ariz. 491, 3 Pac. 810; Runkle v. Burnham, 153 H. S. 216; St. Louis v. Rutz, 138 H. S. 226; Zang v. Stover, 2 N M. 29; Crolot v. Maloy, 2 N M. 198; Vasquez v. Ppielgelburg, 1 N M. 464; Romero v. Desmarais, 5 N M. 142, 20 Pac. 787.</p> <p>This rule has been generally followed by the courts in New Mexico. Moore v. Western Meat'Co., 16 N. M. 107, 115 Pac. 787, 78 Fed. 776.</p> <p>Findings cannot be examined in this Court, even if against the preponderance of the evidence. Romero v. Desmarais, 5 N. M. 142, 20 Pac. 787; Waldo v. Beckwith, I N. M. 97; Arehibeque y. Miera, 1 N. M. 188; Rube v. Abreu, 1 N. M. 247.</p> <p>Court is limited, in reversing, to the consideration of the correctness of the findings of the law and must affirm if there be any evidence in support thereof. Beuttel v. Magone, 157 U. S. 154; Lehnen v. Dickson, 148 U. S. 71, 70 Fed. 776; Moore v. Meat Co., 16 N. M. 107, 113 Pac. 827.</p> <p>Cannot reverse where there is “sufficient” or ‘‘substantial” evidence to sustain the findings. Torlina v. Trorlicht, 5 N. M. 148, 21 Pac. 68; Field v. Romero, 7 N. M. 630, 41 Pac. 517; Givens v. Veeder, 9 N. M. 256, 30 Pac. 316; De Baca v. Pueblo, 10 N. M. 38, 60 Pac. 73; Romero v. Coleman, 11 N. M. 553, 70 Pac. 559; Rush v. Fletcher, II N. M. 335, 70 Pac. 559;Ortiz v. Bank, 12 N. M. 519, 78 Pac. 529; Candelaria v. Bank, 13 N. M. 360, 84 Pac. 1020; Moore v. Meat Co., 16 N. M. 107, 113 Pac. 827; Baker v. Trujillo de Armijo, 128 Pac. 73.</p> <p>Co., 121 TJ. S. 325; Undue Influence, Old ^ge, etc. Cur-Fraud. Maxwell Land Grant S. v. Maxwell Land Grant tis v. Kirkpatrick, 75 Pac. 760; Chrisman v. Chrisman, 18 Pac. 6; Eddy’s Appeal, 109 Pa. St. 406, 1 Atl. 425; President, etc., et al., v. Merritt, 75 Fed. 480; Buckney v. Buckney, 38 W. Ya. 168, 18 S. E. 383; Parsons on Contracts, 383; Beach Modern Law of Contracts, pp. 1818-1819, and cases cited; Wharton & Stille Med. Juris., pp. 4, 5; Devlin on Deeds, par. 68; Drefahl v. Security Sav. Bank, 107 N. W. 179; Harlan v. Harlan, 102 la. 701, 72 N. W. —; Eyre v. Potter, 15 How. 59.</p> <p>Has a partner the right to dissolve a partnership for a stipulated time? Karriek v. Hannainan, 168 U. S. 335, 42 L. Ed. 489; Rutland Marble Co. v. Ripley, 77 U. S., 10 Wall. 339; Batten, Specific Performance, 165-167; 3 Lindley, Partnerships, ch. 10, par. 4; Pomerojq Specific Perl, par. 290; Scott v. Rayment, L. R. 7 Eq. 112; Satterthwait, v. Marshall, 4 Del. Ch. 337; Reed v. Yidal, 5 Rich. Eq. 289; Somerby v. Buntin, 118 Mass, 279, 19 Am. Rep. 459; Story, Partnerships, par. 275; Gerard v. 'Gateau, 84 111. 121, 25 Am. Bep. 438; Hena v. Walsh, 2 Edw. Ch. 129.</p> <p>Mere dissatisfaction by one partner will not justify him in filing a bill for a dissolution. Story, Partn., pars. 275-■6; Story, Eq. Jur., par. 673; Lindley Partn., p. 575, par. 2; Perrero v. Buhlmeyer, 34 How. Pr. 33; Pearpoint v. ’Graham, 4 Wash. C. C. 232; Peacock v. Peacock, 16 Yes. Jr. 49; Cash v. Warnshaw, 66 111. 402; Yan Ruren v. ‘Trenton Loco. & Mach Mfg. Co., 13 N. J. Eq. 302.</p> <p>Probert’s failure to testify raises a presumption that his "testimony would be damaging. Young v. Corrigan, 208 Eed. 436.</p> <p>Court should have considered every phase of the testimony and awarded appropriate relief. Bexford v. Woodland Co., 208 Eed. 296; Saunders v. Paper Co., 208 Eed. -442.</p> <p>There were no findings of facts. Luna v. Bailroad Co., 16 N. M. 71.</p> <p>The minds of the parties must meet as to all the terms •of the contract. 9 Cyc. 245, 398, 408; Hearne v. Marine Ins. Co., 20 Wall. 488; Sells v. Sells, 1 Drewry & Shales, 42; Mortimer v. Shortall, 2 Drewry & Warren, 372; Smith v. Maekin, 4 Lans. 46;-Page v. Higgins, 5 L. B. A. 152, note and cases cited; Bowland v. Bailroad Co., 29 Am. St. 175; Hartford & New Haven Bailroad v. Jackson, 63 Am. Dee. 177; Green v. Stone, 55 Am. St. Br. 577, (H. J. Eq.); Bogers v. Collier, 23 Am. Dec. 153; Burklialter v. Jones, 3 Pac. 559; 1 Page Contr., secs. 74 and 77; Chitty on Contracts, (6 Eng. Ed.) p. 13; Sawyer v. Hovey, 3 Allen 331; 2 Pom. Eq. Jur. (3d ed.) sec. 870; 1 Parsons on Contracts, 483; Benjamin on Sales, sec. 398; Henry School Twt. v. Meredith, 32 Ind. App. 607; Calhoun v. Teal, 30 So. 288; Eifer v. Clearleld Co., 62 Atl. . 1122; Kelly v. Ward, 60 S. W. 311; Crispill v. Cain, 19 W. Ya. 438; Boehm v. Yanquell, 15 Ohio C. C. 454; Moore v. Cox, 51 Pac. 630.</p> <p>One of the most satisfactory evidences of fraudulent intent on the part of the grantee will be found in his activity in procuring the conveyance. Booth v. Turtle, L. R. 16 Eq. 183; Catalini v. Catalini, 19 Am. St. R. 73; Goodwin v. McMinn, 74 Am. St. R. —; Diwee v. Thompson, 90 S. W. 193; Clark v. Haney, 50 Am. R. 536; Danzeisen’s App., 73 Pa. 65; Barton v. McMillan, 20 Can. S. C. 404; Barnard v. Elinn, 8 Ind. 204; Seichrist’s Appeal, 6® Pa. 237; 9 Cjm 245, and citations; 9 Cyc. 394j and citations; Moffett, et al., v. City of Rochester, 91 Eed. 28; Champion v. McCarthy, 228 111. 87; Shedd v. Seefeld, 230' 111. 118.</p> <p>The effect of inconsistent allegations and denials in the answer of defendants. 31 Cyc. 92; Schlesinger v. McDonald, 106 N Y. App. 570; Losch v. Pickett, 12 Pac. 822; Butler v. Kaulback, 8 Kans. 668; Wright v. Bacheller, 16 Kans. 259; Wiley v. Keokuk, 6 Kans. 94; Schenk v. Schency, 10 N. J. L. 276; 39 Cent. Dig., sec. 81; 31 Cyc. 87 and cases cited.</p> <p>STATEMENT OF FACTS.</p> <p>On December 16, 1910, the appellant and the appellees, John B. Bidwell, and A. Clarence Probert, made and executed the following agreement, viz:—</p> <p>“THIS. AGREEMENT, made and entered’ into this 16th day of December,' 1910, by and between WILLIAM ERASER as party of the first part, and JOHN B. BID-WELL and A. CLARENCE PROBERT, as parties of the second part, that for and in consideration of the sum of Two Thousand dollars and other more valuable consideration we hereby form ourselves into a joint and co-partnership under the firm name and style of ERASER, BID-WELL & PROBERT for the purposes of developing, improving, selling and disposing of the mineral properties of the said William Eraser within a period of two (2) years’ time from this date, or as long thereafter as the said William Eraser may agree to and with said parties of the second part, and in further consideration for the time and monies expended by the said John B. Bidwell and A. Clarence Probert a Warranty Deed has been executed and given to each one of the said parties of'the second part, conveying an undivided one-third interest in and to all of said mining properties belonging to the said William Fraser and if said mining properties are not sold or disposed of within the said period of time mentioned above then said warranty deeds are to be void and of no effect and the said mining properties mentioned in said warranty deeds are to revert back to the said William Fraser.</p> <p>“It is further hereby mutually understood and agreed that in the event of an expiration or forfeiture of this agreement or contract that all monies expended by the said John B. Bidwell and A. Clarence Probert, parties of the second part, that the said William Fraser hereby agrees to reimburse and pay back the whole amount of said monies in the form of a lien against all of said properties mentioned in said Warranty Deeds, so that the said John B. Bidwell and A. Clarence Probert shall not be out any moneys that were expended in this copartnership or transaction by them.</p> <p>“IN WITNESS WHEREOF, the said parties have hereunto set their hands and seals the day and year first above written.</p> <p>(Signed) “William Fraser (Seal)</p> <p>(Signed) “John B. Bidwell (Seal)</p> <p>(Signed) “A. Clarence Probert (Seal)</p> <p>‘‘Signed, Sealed and delivered in presence of</p> <p>(Signed) “J.-Wright Giddings</p> <p>(Signed) “Fidel Cordoba; Jr.</p> <p>(Signed) “Enrique Gonzales.”</p> <p>On the same day, and as part of the same transaction, appellant made, executed and delivered to each of the above named appellees a warranty deed, signed by appellant and his wife, by which he conveyed to each, respectively, an undivided one-third interest in and to all his mining properties, therein named, and also a like interest in. and to a toll road owned by him in the Rio Hondo Canon leading to said mining properties and the grantor’s rights in</p> <p>the Laroux Grant. On the same day, or shortly thereafter, Bidwell placed to Fraser’s credit in the Taos Savings Bank or applied on Fraser’s debts, approximately $2,000.00.</p> <p>Thereafter, on February 18, 1911, Fraser, Bidwell and Probert made and entered into a written contract with 'Charles T. Martin, by which they agreed to convey to him for the sum of $77,500, all the property above mentioned. 'The contract was signed by Fraser, Bidwell and Probert, ■a co-partnership, by each of the individuals, composing the •alleged partnership, and by Martin. By the terms of the ■contract $20,000 was to be paid in cash and the balance was to be paid in two installments, at stated times. Pursuant to the contract, the $20,000 was paid, which was "turned over to Probert, and by him deposited in the Taos Savings Bank, out of which sum all of Fraser’s debts were paid, amounting to approximately the sum of $10,000, and some cash was distributed to each of the parties to the so-called partnership agreement by Probert. Deeds to the property were executed by the three parties, as required by the contract, which were placed, under the contract, in escrow with the Hanover National Bank of New York City, for delivery to Martin upon compliance by him with the terms of the contract. Subsequently, Martin paid to the Hanover National Bank the first installment of $18,-500, as required by the contract, which payment was made in September, 1911. Immediately prior to such payment, Fraser instituted this suit in the lower Court for the dissolution of the alleged co-partnership between Fraser, Bid-well and Probert; the recisión of the two deeds for one-third interest each in Fraser’s property to Probert and Bidwell; the accounting for $20,000, part of which had been taken by Bidwell and Probert, with proper commission allowances to Probert and Bidwell for their services quantum meruit, and their reimbursement for their expenditures under the co-partnership agreement; the appointment of a receiver to carry out the undertaking with Charles T. Martin; the injunction of Probert and Bidwell and the State Savings Bank from interfering with Fraser in carrying out the contract with Martin and certain modifications thereof to which Fraser alone had agreed, and to restrain Probert and Bidwell from directing the Hanover-National Bank not to receive the payment of $18,500 about to fall due as modified by certain agreements made by Fraser, individually, and the authorization of the receiver to take and hold, under proper bond, the money Martin should pay under said contract. The basis of the-complaint was fraud, in that advantage had been taken by Bidwell and Probert of Fraser’s weakened mental' condition, in the transaction.</p> <p>The appellees answered, denying all the allegations of fraud and overreaching and the weakened condition of Fraser, and alleged full performance of the contract on their part. They also set up fraud on Fraser’s part in his-attempted dissolution of the partnership agreement.</p> <p>Charles T. Martin intervened, for the purpose of securing advantage of certain modifications in the original contract of purchase, made by Fraser just prior to the institution of this suit.</p> <p>B. G. Kandall, receiver of the Taos Savings Bank, also-intervened for the purpose of subjecting Probert’s interest in the funds, should he ultimately be adjudged entitled thereto, to certain indebtedness owing by him to the bank.</p> <p>Trial was had to the Court in equity, which found the-issues in the main case in favor of Bidwell and Probert, and against Fraser, and in favor of Kandall, receiver, upon his claims against Probert. The intervention of Martin-was determined against him. The plaintiff, Fraser, appealed to this Court, as likewise did the intervener, Martin. Subsequently, the appeal as to Martin was dismissed, at his request.</p> <p>Additional facts appear in the opinion.</p>

<p>SYLLABUS (BY THE COURT)</p> <p>1. In an action for commissions earned by a broker in effecting an exchange of property of his principal, where the complaint pleaded a written contract of employment of the-broker by the principal to make an exchange and a written contract of exchange between the principal and a customer-procured by the broker; an answer which alleged (a) that the-principal had not accepted the property of the customer; (b) that the principal had not accepted the customer as a proper party with whom to make an exchange other than on the terms of the written contracts entered into by them; (c) that the-written contracts of exchange were intended by the parties-, to be merely stipulations by which an exchange of property might be effected and not a valid, binding and enforceable-contract of exchange; (d) that the broker had not done all' he was required to do in order to earn his commissions; (e) that the customer had failed to perform his part of the contract; tendered issues of law and not of fact.</p> <p>P. 367</p> <p>2. Where the answer raises issues of law only, the case is ripe for judgment on the issues of law involved and a motion for judgment on the pleadings is properly entertained.</p> <p>P. 367</p> <p>3. Under an employment to sell or exchange the property of his principal, a broker has fully performed his undertaking when he procures a customer, with whom the principal makes a valid contract of sale or exchange. ■</p> <p>P. 367</p> <p>4. In an action by a broker for commissions earned by him in effecting an exchange of the property of his principal, where the complaint pleads a valid and enforceable written contract between the principal and a customer procured by the broker, to exchange property, it was not necessary for the complaint to allege that the customer was “in a position and able to convey a perfect title to the property which he proposed to exchange.”</p> <p>P. 368</p> <p>5. In such a case the principal by entering into a contract of exchange with the customer produced by the broker, accepted the customer as able, ready and willing to make the exchange.</p> <p>P. 368</p> <p>' 6. A stipulation that “both parties hereunto have this day deposited in escrow with K., S. & H. this contract and a copy of the original contract, his demand note for $1000.00 as evidence of good faith and as a forfeit in event either party hereto fails or refuses to comply with the terms of the contract as therein provided” held to be á penalty.</p> <p>P. 369</p> <p>7. In an action for a broker’s commissions for effecting an exchange of real estate where the complaint states the making of a valid written contract of exchange between the principal and the customer procured by the broker, the complaint need not further state that the customer was able, ready and willing to complete the exchange on the terms of the contract; or that he made any effort to that end; or the refusal of the principal to complete it.</p> <p>P. 370</p> <p>8. In an action based upon a written contract which is admitted by the answer, the intentions of the parties as to what should be the effect of the contract is to be decided by the Court upon an inspection of the contract.</p> <p>P. 370</p> <p>9. An allegation in the answer of what the parties intended or did not intend the contract should effectuate, raises a question of law to be decided by the Court.</p> <p>P. 370</p>

McClure, District Judge; Court erred in sustaining plaintiff’s motion for judgment on the pleadings. Laws 1907, ch. 107, sec. 3 of sub-sec. 308; amending sub-sec. 62 of see. 2685, C. L. 1897. Amendments to pleadings should be liberally allowed in the furtherance of justice. Snider v. Winslow, 93 Pac. 600; Kindall v. Lincoln Hardware & Implement Co., 76 Pac. 992.

Medler, District Judge; • Defendant was proceeding in exact conformity with the act of 1913. Laws 1913, ch. 84, sec. 34-40. Laws of 1913 is a valid exercise of legislative power. Sec. 1, ch. 84, laws 1913, repeled ch. 22, laws of 1899. Judgment of the lower Court could not have been founded on sec. 34, ch. 84, laws 1913. No formal assignment of errors appears to have been filed or set forth in appellant’s brief. Laws 1907, -ch. 57, sec. 21.

(1395). Error to the District Court of BernalilloCounty; Ira A. Abbott, Associate Justice; Petitioners failed to allege and prove that they had complied with the laws of the Territory of New Mexico as to the appropriation and diversion of public waters, which is a necessary jurisdictional allegation. Laws 1907, ch.-49, secs. 3, 12, 45, 25, 44, and 61. The right of eminent domain is the right to take private property for public use.

McClure, District Judge; In case of-the breach of an executory contract for the sale of goods, the seller cannot recover on the contract price but his right is limited to an action for damages. Acme Food Co. v. Older, 17 L. B. A. (N. S.) 807, et seq. and note; John Deere Plow Co. v. Gorman, 59 Pac. 177; American Hide & Leather Co. v. Chalkley, 44 S. E. 705; McCormick Harvesting Mach. Co. v. Balfney, 81 N. W. ■ 10; Stewart v. Scott,. 15 S. W. 463.

A. Richardson, District Judge; The doctrine of caveat emptor applies. Hord’s Admrs. v. Colbert, 28 Gratt. (Va.) 49. The client cannot plead negligence of his attorney as grounds for relief. Williams v. Jones, (N. M.) 85 Pac. 399; 3 A. & E. Ene., 2d ed., 324; Putnam v. Day, 22 Wall. 64; Terry v. Commercial Bank, 92 U. S. 454; 24 Cye. 42; Reed v. Djer, 83 Va. 275; Long v. Weller’s Estate, 29 Gratt. 347.

Brief of Respondent resisting application for peremptorv mandamus. If the investment of school monies by the State Treasurer requires the exercise oí any discretion or judgment on the part of the respondent mandamus will not lie. Goodrich v. Guthrie, 58 U. S. 284; U. S. v. Seaman, 58 TT. S. 225; Regents, etc., v. Vaughn, 12 N. M. 333; United States v. Black, 128 U. S. 40.

Habeas Corpus. Courts will not take judicial notice of the ordinances of cities; they should be pleaded and proven as special laws. 28 Cyc. 393, 394, 395, note 41; Garlanad, et ah, v. City of Denver, 19 Pac. 460; Williams v. Augusta, 4 Ga. 509; Davenport v. Bird, 34 Iowa, 524; Cooper v. People, 41 Mich. 403; C. L. 1897, sec. 2407.

McClure, District Judge; appeal dismissed. The decision of the trial court in the habeas corpus case attempted to be appealed from is not of that final and conclusive character necessary to support a review by writ of error or appeal; and, that .no right of appeal exists. 21 Cyc. 338, (11) and notes; Mead v. Metcalf, 25 Pac. 729; Ex p.arte White, 84 Pac. 242; State v. Ray, 105 Pac. 46; State v. Brownell, 50 N. W. 413; 9 Enc. PI. & Pr. 1072, par. XVII and notes.

<p>Error to the District Court of Bernalillo County; Herbert F. Raynolds, District Judge;</p>

Abbott, District Judge; A demurrer admits all facts well pleaded. Railroad Co. v. Railroad Co., 13 N. M. 345; Dame v. Cochite, 13 N. M. 10; Minor v. Marshall, 6 N. M. 194. Facts show the rendition of a void judgment and the issuance of a void execution, and the wrongful seizure of properly thereunder.

Leahy, District Judge; Indictment is defective for the reason that it does not allege that the owner was deprived of the possession of the animal in question. Alwin v. Morley, 108 Pac. 778; Territor3 v. Cortez, 103 Pac. 264. Proof of ownership, must be positive. • 25 Cyc. 125; Schaubert v. State, 12 S. W.-732; Crockett v. .State, 14 Tex. App. 226. Identification of the parties accused should be positive and complete.

<p>Appeal from the District Court of Lincoln County; Edward L. Medler, District Judge;</p>

Raynolds, District Judge; Provisions for sale under Texas statute, sec. 3, art. 3729, Rev. Stats, of Texas; Pierson v. Hammond, 22 Tex. 585; Young v. Smith, 23 Tex. 598; Borden v. Tillman, 39 Tex. 262. * Which was the regular sale?' Sec. 7, art. 3729, Rev. Stat. of Texas; art. 2281, Rev. Stat. Texas; Driscoll v. Norris, 2 Tex. Civ. App. 602; 21 S. W. 629; Freeman on Executions, sec. 54; Frankfort Bank v. Marldey, 1 Dana 373.

<p>SYLLABUS (BY THE COURT)</p> <p>1. The endorsement and delivery oí a promissory note operates as an assignment, where the note is non-negotiable; and the assignee, under the statutes of New Mexico, may sue thereon in his' own name. Where a note is transferred after maturity it is subject to defenses existing between the payee and payor and the question of its negotiability is immaterial.</p> <p>P. 507</p> <p>2. Transfers of property made to innocent third parties, in violation of a restraining order, are not void nor voidable, because, made in disregard of such order.</p> <p>P. 507</p> <p>3. A surety, on a promissory note is not discharged from liability by an extension of time granted the principal, where the makers are not precluded from paying the note prior to the expiration of such an extension and the extension granted was without consideration.</p> <p>P. 508</p> <p>4. An exception to findings of. fact made by the trial court must specify the particular finding or findings objected to, where more than one finding is made, and a general objection is insufficient to present any question for review unless all the findings are incorrect and an objection to a finding, where no requested finding on the proposition is asked, which points out counsel’s theory or contention, should clearly indicate the claimed error.</p> <p>P. 510</p>

McClure, District Judge; It is not necessary to enter an appearance in the Justice Court in order to be entitled to appeal to the District Court. Eight to appeal from the Justice Court. C. L. 1897, secs. 3305, 3306, 3307, 3308, 3309, 3365, and 3317; Douthit v. Bailey,. 14 N. 'M. 534, 99 Pae. 342; 6 Ene. PI. & Pr. 227; St. Louis & S. E. E. E. Co. v. Couch, (Olda.) 114 Pac. 694.

Raynolds, District Judge; Indictment does not charge the crime of murder in the first degree. Session Laws, 37th Legislative Assembly, ■ch. 36, sec. 1. No person, who is not a member of the jury, may be present during their deliberations. State v. Sherbourse, 1 Dudley (Ga.) 28; Starling v. Thorne, 87 Ga. 513; Welch v. Taverner, 87 la. 207; Tarkington v. State, 72 Miss. 731; McElrath v. State, 2 Swan. (Tenn.) 382; Clapp v. State, 94 Tenn. 186; Wright v. State, 17 Tex.

<p>Appeal from the District Court of Luna County; Colin Neblett, District Judge;</p> <p>Court erred in refusing to instruct the jury that plaintiff could not recover for injuries to that portion of the land covered by plaintiff’s desert entry which was can-celled Scott v. Carew, 196 H. S. 100; Doolan v. Carr, 125 D. S. 618; Burfenning v. Chicago, etc., By. Co., 163 L. S. 321; Morton v. Nebraska, 21 Wall. 660; Lake Superior, etc., Co. v. Cunningham, 155 D. S. 354; Grisar v. McDowell, 6 Wall. 363; Kraus v. Congdon, 161 Fed. Bep. 18.</p> <p>Fencing of lands. Session Laws 1909, chap. 70.</p> <p>Fencing laws have no application where cattle are driven upon unfenced land in order that they may feed there. Light v. Dnited States, 220 U. S. 537; Lazarus v. Phelps, 152 IJ. S. 81; Monroe v. Cannon, 24 Mont. 316; St. Louis Cattle Co. v. Vaught, 1 Tex. App. 388; Dnion Pac v. BoJlins, 5 Kans. 165.</p> <p>The granting or refusal of a motion for new trial, being addressed to the sound discretion of the trial court, will not, unless it plainly appears that such discretion has been abused, be reviewed on appeal. Duncan v. Holder, IS N. M. 323. ■</p> <p>Appellate court will not disturb a verdict where there is substantial evidence to support it. Territory v. Clark, 13 N. M. 353.</p> <p>An entry of land, valid upon its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the Public Domain, and appropriate it to private use; and even though the entry may be in fact invalid, no lawful entry or settlement can be made on the land by another person. 32 Cyc. 808, et seq.; Holy v. Murphv, 207 U. S. 407; McMichael-v. Hnited States, 197 H. S. 304; 32 Cyc. 818; H. S. v. Waddell, 112 H. S. 76; Stearns v. U. S., 152 Fed. 900; Wormouth v. Gardner, 105 Cal. 149; Hodges v. Colcord, 12 Okla. 313.</p> <p>Until the entryman has become entitled to a patent, he has no vested rights in the land as against the United States, such as will deprive Congress of the right to dispose of the land otherwise than by a patent to him. 32 Cyc. 817: Campbell v. Wade, 132 U. S. 34.</p> <p>As against defendant, plaintiff’s title was perfect at the time of the trespass committed by defendant. Holt v. Murphjn 207 U. S. 407; McMichael v. Murphy, 197 U. S. 304; Hartman v. Warren, 70 Fed. 946; Germania Iron Co. v. .Tames, 89 Fed. 811.</p> <p>STATEMENT OF FACTS.</p> <p>This was an action brought by Mary Belle Whitehall,, appellee, against the Yictorio Land & Cattle Company, appellant, in the District Court of Luna Countjr, for the recovery of damages for trespass by cattle upon certain lands claimed by appellee, in Grant County, under a desert land entry. The desert entry being for the Southeast Quarter of the Northwest Quarter, and the Southeast Quarter of Section Twelve, in Township Twenty, South of Range Twelve West, and Lots numbered Three and Four in Section Seven, and Lot numbered One in Section Eighteen, in Township Twenty South, Eange Eleven West, (being 318.25 acres.)</p> <p>The complaint alleged residence of the plaintiff, corporate capacity, domicile and place of business of the defendant, and appellant herein, and further alleged possession of the lands described by plaintiff; that the defendant between July 20 and August 4, 1911, did wrongfullly and without right or authority and against the will and protest of the plaintiff, cause and allow a large number of its - cattle to go upon the lands described, and tread down, eat and destroy grass then growing thereon, to the damage of the plaintiff in the sum of $3200, for which she prayed judgment.</p> <p>The defendant, appellant here, answering, denied knowledge or information, sufficient to form a belief, as to the ownership and right to the possession in plaintiff of the lands described, and denial of the trespass alleged; and further answering, set up that the lands were unfenced, that the defendant had no knowledge of plaintiff’s claim to the land, and was the owner of a large number of cattle then ranging upon the public domain of the United States. Plaintiff, by way of reply, denied all new matter in the defendant’s answer.</p> <p>The cause being tried to a jury, resulted in a verdict for plaintiff, assessing her damages at $1591.25.</p> <p>The testimony showed that on May 6, 1911, plaintiff, Mary Belle Whitehall, filed her desert entry declaration in the United States Land Office, at Las Cruces, New Mexico, for the land within described, at which time a portion of said land, to-wit: the Northeast-Quarter'of the Northeast Quarter, being lot One in Section Eighteen, Township Twenty South, Eange Eleven West, had been reserved by lire government of the United States, for which reason this portion of the desert land entry was subsequently cancelled by letter of October 17, 1911. The trespass complained of in the complaint, and for which damages was sought according to the testimony, occurred between the 20th day of July and-the 4th day of August, 1911.</p>

Original petition for certiorari in the Supreme Court by the South Spring Banch & Cattle Company, a corporation, and others, to review an action of the State Board of Equalization; Yalidity of the order promulgated by the Board of •Equalization of the State of New Mexico- for the year 19.13. Session Laws 1913, ch. 81, secs. 1, 3, 4, 5, 7; Laws-1913, ch. 84, sec._ 12.

Leib, District Judge; affirmed. Proof of burglary is without foundation. Little v. Commonwealth, 152 S. W. 569. Court invaded the province of the jury because it precluded from the jury the consideration of any defence, except that of alibi.

Raynolds, District Judge; A deed signed by the wife alone, conveying community property to the husband, was absolutely void under the laws of New Mexico at the,time the deed is alleged to have been made. Elliot v. Piersol, 1 Pet. 338; 7 L. Ed. 169. Husband must join her in the deed. Ehea v. Ebenner,. 1 Pet. 109, 7 L. Ed. 73. Statute required certain manner and form of conveyance. Edgar v. Baca, 1 N. M. 620. Statute must be strictly complied with. 21 Cyc. 1330-3..

Medler, District Judge; Appellant’s interpleader complied in every respect with the requirements of law, and the facts show a proper case for interpleader, and the court was in error in refusing to permit appellant to pay the amount of the certificate of deposit, with interest, into .court. Puterbaugh’s Ch. Pleading, p. 279, and authorities cited; Story Eq.

<p>Original Application for Writ of Habeas Corpus</p>

; Thomas D. Leib, District Judge; affirmed. Appellants failed to file with the proper officer of the city of Raton, prior to the election, an estimate of the approximate cost of the proposed improvements, and therefore the proceedings initiated for the incurring of the indebtedness in erecting the so-called municipal building, and for the issuance of bonds therefor, were illegal and void.

Abbott, District Judge; reversed and remanded with instructions to dismiss the writ of mandamus. The legislature impliedly repealed the law providing for the pa3'ment of the salary of appellee and no appropriation in law exists for the pajunent thereof. Chap. 5, Laws 1905; sec. 4, chap. 127, Laws 1909; sec. 18, ch. 83, Laws 1912; sec. 30, art. IV, Constitution of E. M. Interpretation of the laws. Sutherland on Stat. Const., p. 422; Id., p. 177.

Raynolds, District Judge; The order adjudging Canavan in contempt was made after final decree and after the restraining order had ceased to be effective. It not being carried forward by the final decree. Gardner v. Gardner, 87 N. Y. 14; People, ex rel. Morris, v. Randall, 73 N. Y. 416; State against Bruce, et al., 45 S. E. 153; Sweeney v. Hanley, 126 Fed. 197; 10 Enc. PI. & Pr. 1029; Beach on Injunction, sec. 109; Gompers v. Buck Stove & Range Co., 221' II.

Abbott, District Judge; Laws of Territory, not inconsistent with the Constitution, shall remain in force. Const. N. M., art. XXII, sec. 4; Id., sec. 9. Women may hold the office of notary public and such other appointive offices as may be provided by law. Const. (N. M.), art. XX, sec. 77. In all the courts of this Territory, the common law as recognized in the Dnited States of America, shall be the rule of practice and decision.

Medler, District Judge; On demurrer: None of the points raised or attempted to be raised by the demurrer can be reached, when considered in the light of the allegations of plaintiff’s complaint, and can be raised only by answer. Authorities on the two theories as to the appropriation of water: Wiel on Water-Eights in Western States, sec. 1338; Wheeler v. Northern Irr. Company, 10 Colo. 583; Wiel on Water Eights, sec-398; Sowards v. Meagher, 108 Pac. 1113; Hagerman Irr.