Volume 2 — New Mexico Reports

William Garland, one of tbe plaintiffs in error, brought suit in replevin before E.'E. Lancaster, justice of tbe peace in and for Colfax county, to recover certain property, a trial by jury was bad and a verdict rendered in favor of tbe plaintiff.

Plaintiffs sue defendant in an action of assumpsit, and sue out a writ of attachment which, among other things, states that the petitioners are Cornelius Bennett of Arizona, Joseph F. Bennett, of Grant county, and Henry Lesinsky, of Doña Ana county, in this territory. That said petitioners were doing business under the firm name and style of Bennett Bros. & Co., at Silver City in said county of Grant.

This is an action wherein plaintiff sued out a writ of replevin from the clerk of the probate court, returnable to the district court for the county of Taos. The affidavit and bond do not conform to the statutes authorizing the probate clerk to issue writs of replevin. The papers were sent up to the district court, but no protest appears among them.

This is an action of trespass on the case upon pi-emises, commenced by the issuance of a writ of capias ad respondendum,. Held: and his attorney could have done anything the defendant in person could: Matron v. Elder, 6 Cal., 59 ; 2 Mass.,. 481. Especially last page of the case. Sec. 8, Compiled Laws.

Benjamin Zanz, the'plaintiff and appellant herein, on the second day of October, 1877, recovered judgment in the dis-. * trict court for the county of Bernalillo against William E. Talbott for the… Held: even though he denies any indebtedness: 40 Pa. State, 248; Maime v. Buford, 3 Ala., 312; Bebb v. Preston, 1 Iowa, 469.

No 'Writ op Error m Chancery. Writ of Error to the District Court for the county of Grant. This is a motion to dismiss a writ of error in a proceeding in chancery. The first authority with reference to writs of error is the organic act, which says : Writs of error, bills of exception, and appeals, shall be allowed to the supreme court, in all causes from the final decisions of said district courts, under such regulations as may be prescribed by law.

Tbis is an action of replevin brought to recover possession of four tons of ore, more or less, to the possession of wbicli plaintiff alleged he was entitled, and that tlie same was deposited at the quartz mill of .the defendant. The suit was regularly brought according to the statute, and the writ was executed by taking the ore and delivering the possession of it to the plaintiff.

At the expiration of the legislative session of 1880 a controversy arose as to the office of attorney-general of the territory. Hon. Henry A. Waldo had been holding that office for nearly two years under an appointment made by the governor to fill a vacancy occurring while no legislature was in session.

In order to obtain a decision of the supreme court on the question whether the office of attorney-general of New Mexico was vacant or not at the January, 1881, term, when the case of The Territory of New Mexico v. Joseph Stokes and William Miller was called, both Judge Waldo and Mr. Fisko appeared, claiming to represent the territory as attorney-general. The casé, was submitted on an agreed statement of facts.

The facts appear in the opinion of the court. 1. The plaintiff was at the time this cause accrued, attorney-general of New Mexico: Organic Act of New Mexico, Sept. 9, 1850 (9 United States Statutes, p. 449); Rév. Statutes U. S., secs. 1858, 1841 and 1857; Art. 2, sec. 3, Constitution of the United States; Pascal’s Annotated Constitution U. S., p. 182; Act relative to Jesuits, 20 U. S. Stats., p. 280; Pascal’s Annotated Constitution of United States Statutes, p. 174, note…

The facts appear in the opinion of the court. The 'indictment in this case is in the form used for indictments of accessories before the fact to murder at common law. Held: that the confessions and cleclaratímis of the principals were competent and legal evidence to establish both the propositions laid down in the charge — or rather, that such confessions were proper evidence to be considered by the jury.

This was an action of assumpsit brought by the plaintiff’ in error, plaintiff below, to recover damages from the defendants alleged to have been sustained by reason of the defendants’ failure to pay a debt alleged to have been contracted by one of the defendants, Maria de la Luz Garcia de Chaves, as a feme sole, on account of the maintenance of two children by a prior marriage. The action was brought against the defendants as husband and wife.

The facts appear in the opinion of the court. The first point complained of by the defendant in this case is: That being incarcerated in the county jail at the time of the impanelling of the grand jury, and not having been produced in court, he was thereby deprived of his statutory right of challenging that body. See Compiled Laws of New Mexico, chapter 69, page 500, sec. 3.

Prince, J. The appellant in this case is charged with assault and battery. The case originated before a justice of the peace within and for Taos county ; was appealed to district court, where defendant was found guilty. It is brought here on appeal.

Appellant was indicted at tbe March term of the district court for killing Patrick Rafferty, on the Kith day of March, 1877, at the county of Grant, in the territory of New Mexico, with a hammer, and was convicted of murder in the first degree. Tlie jurors who sat in the trial of this case were Mexicans, and none of them understood the English language, in which the proceedings at the trial were had.

The facts appear in the opinion of the court. 1. As the plaintiff below did not sue on the contract, but in general assumpsit, the true rule of damages is the actual loss he sustained, if any, by reason of the stoppage of the work: Sedgwick on Measure of Damages, p. 273, 6th ed.; Pond v. Wyman, 15 Mo. Rep., 177; Loiter v. Damon .et al., 34 Mass., 284. 2. The amount of damages so sustained by plaintiff, he was bound to show, and this he has utterly failed to do.

’ Error to the District Court of Taos county. This suit was brought to recover the amount due on a certain promissory note made by the defendant and one William W. Henderson, deceased, to plaintiff for $250, dated January 29th, 1868, payable five months after date, with twelve per cent, per annum interest after maturity. On this note the sum of $86 was paid March 10th, 1873. The defendant pleaded non assumpsit,and three special pleas.

The facts appear in the opinion of the court. The finding and verdict of the jury and the judgment and sentence of the court thereupon are contrary to law and void. The jury found the defendant guilty of murder in the first degree, but failed to assess the punishment, as required by law. The court assessed the punishment without authority of law.

Prince, J. The defendants in this case were indicted by the grand jury of San Miguel county for burglary under sec. 8, chap. 1, title 8 of an act, entitled “An act to provide for the incorporation of railroad companies and the management of the affairs thereof, and other matters relating thereto,” approved February 2d, 1878 (Laws of 1878, p. 43). Change of venue was taken to Santa Fe county, and the cause tried at the July term, 1880, of the district court at Santa Fe county.

Petition for rehearing. Plaintiffs sue defendant in the third judicial district court, sitting within and for the county of Grant, in an action of assumpsit, and sue out a writ of attachment; The declaration, among other things, states the petitioners are Cornelius Bennett, of Arizona; Joseph F. Bennett, of Grant county, and Henry Lisinsky, of Doña Ana county, in this territory.

Eleuterio Baca, the defendant, appellant in this cause, was brought before a justice of the peace in the county of San Miguel, on a sworn declaration charging him with taking water from the acequia. . In said declaration no name is given to the acequia, it is not stated in what county the supposed offense was committed, nor even that it was committed in this territory. No time when the offense was committed is charged.

Defendant was charged, under sec. 18, art. 1, chap. 1, p. 22, Comp. Laws, 1865, with taking water from an acequia, was tried before a justice of the peace for San Miguel county, and the case brought to the district court of San Miguel county on appeal, and verdict rendered against the defendant. The cause comes into this court on appeal. Motions for new trial and in arrest of judgment were filed in proper time and overruled.

This is an action of assumpsit, brought by Louis Badeau, appellee and plaintiff below, against Romaldo Baca, appellant and defendant below in the district court for the county of San Miguel, New Mexico, to recover the sum of $3,572.94. The jury found for the plaintiff below and assessed his damages at $1,225.79. The defendant below moved for a new trial, which was refused by the court, whereupon the defendant below prayed an appeal to this court, which was granted.

This is an action brought by attachment before a justice of the peace in Santa Fe county, taken from that court by appeal to the district court, said county, and thence by appeal to this court. Claim was made for ninety-nine dollars for money received by said defendant belonging to plaintiff., Judgment in district court was for full amount claimed.

The facts appear sufficiently in the opinion of the court. This suit was upon a written instrument. The names and description of parties are the same as designated in said instrument. See Prince’s Statutes, page 123. A motion for a continuance is addressed to the sound discretion of the court, and there is nothing in this case to show any abuse of it. The plea of the defendant put in issue the execution of the note, and the evidence introduced was legitimate under this issue.

Writ of error to the District Court of Bernalillo county. This is an action of ejectment brought by plaintiff in error, to recover the possession of a tract of land, described in the petition as situate in precinct No. 20, Socorro county, and bounded on the north by a little hill which encloses a vega or meadow; on the east by the Rio Grande river; on the south by a “ Lome Parda,” and on the west by the hills.

<p>Practice on Review. (1) Insufficient bill of exceptions.</p> <p>1. The bill of exceptions stated that the defendant excepted to an instruction asked for by himself and given by the court. It referred co the transcript for matter which was intended to be part of the bill of exceptions. It omitted to slate a number of instructions which it stated were refused by the court, and such refusal excepted to by the defendant. It had, at the close of the testimony, no certificate of the judge that it contained all of the evidence.</p> <p>Held, unnecessary to examine the case, and that, perhaps, the appeal might properly have been dismissed, but that judgment would be affirmed.</p>

This is an action of replevin brought before Francis Mayland, a justice of the peace, in precinct No. 2, Colfax county, on the fourth day of June, 1881, by Henry Barruel, plaintiff below, against William H. Irwin, defendant below, for the recovery of a gray mare.

The suit in this case was brought on a promissory note held by plaintiff against the defendant. The defendant plead the general issue, and on trial the court permitted the defendant to introduce evidence tending to show that at some time previous the defendant gave the plaintiff a power of attorney to collect certain moneys. That this power of attorney was a settlement of the note, or that the claims when collected were to be in settlement of the note.

This is an action of replevin brought by plaintiff in the district court for the county of Rio Arriba, first judicial district of New Mexico, for the recovery of the following mentioned property, to wit: “ One chalice or communion cup, one ciborium, and one remonstrance that were heretofore used in the catholic church in Santa Cruz.” This writ was returnable at the September term, 1880, of said court.

At thé November term, A. D. 1877, of tbe district court, Doña Ana county, the appellant was indicted for the crime of embezzlement, and was tried at the June, A. D. 1878, term of said court, and 'convicted and sentenced to pay afine of $500 and costs of prosecution. The testimony adduced at the trial shows that appellant was intrusted with $10,000 in money, the property of one Mrs. Daily (afterwards Mrs. Rea).

This is an action of assumpsit in which a writ of attachment was issued by the probate clerk of San Miguel county, on the declaration, affidavit and bond being filed with him. The writ of attachment is in the Spanish language, and ,is directed to the alguacil (constable) of the county of San Miguel.

Prince, J. The defendant, charged with the murder of one John Reardon in the month of October, 1880, was indicted and arraigned at the February term, 1881, of the district court held in and for the county of Santa Fe, and pleaded not guilty. He filed a motion for a change of venue to the nearest county free from exception, declaring against the counties of Santa Fe, San Miguel and Mora.

<p>Appeal from District Court of G-raut county. Bristol, J.</p> <p>Murder. The facts appear in the opinion of the court.</p>

The appellee, King, brought his bill in equity in the district court of the third judicial district of the territory of New Mexico, within and for the county of Grant, against the appellant, Warrington, to have the deed therein mentioned, declared a mortgage, and for redemption of the same. The bill charges and the answer admits that the deed, although absolute on its face, was given as a mortgage to secure the payment of the sum of $110 due from King to Warrington.

Appeals from tbe District Court of Doña Ana county These were proceedings under the statute to contest the respective elections of appellants to the offices of sheriff, treasurer and judge of probate for the county of Doña Ana, at an election held on November 2, 1880. By stipulation of counsel the three cases were heard and determined together in the court below, and they were in like manner argued and submitted in this court.

I.The defense was clearly entitled to prove what was said by the deceased, shortly before the homicide, in the presence of the witness Greenleaf; and the objection to the said statement, namely, that it was incompetent and irrelevant, ought not to have been, sustained. 1.

There is no error in the finding of the jury or the judgment of the court. The judgment of conviction should bo sustained; the indictment in this case is under section 5469 of the Revised Statutes of the United States, page 1060. The case of Webb v. Territory of New Mexico, decided at January term, 1881, mite, p. 147, is conclusive of this case and an affirmance is asked. '

Appealed from the District Court of San Miguel county. This was an action of replevin commenced in the justice court and on judgment being rendered for the plaintiff, an appeal was taken to the district court. In the district court the plaintiff asked leave to amend the affidavit for replevin so as to conform to the exact language of the statute with reference to the necessary affidavits'.on the subject of replevin.

<p>Justice or the Peace. (1) Powers of.</p> <p>Perjury. (2) Surety on appeal bond, swearing falsely as to Ms property is guilty of: Examination of surety by justice of the peace as to former's ownership of property is a judicial proceeding.</p> <p>1. The powers of a justice of the peace or magistrate in New Mexico are not less or narrower than the powers of the same officer elsewhere.</p> <p>2. It is the duty of a justice of the peace to see that sureties offered on ' appeal bonds are worth the sum for which they intend to become sureties, in such property as can be reached by legal process. In order to ascertain this, the justice may examine, upon oath, the persons offering to go upon the bond, and he may also call and examine witnesses upon the subject. This examination and the approval of the bond by the justice constitute a judicial proceeding, in which the justice has legal power to administer oaths, and if the sureties proposed swear falsely to a material matter in such proceeding, they may be indicted and punished for perjury.</p>

<p>New Trial. (1) Granting of, discretioncvry: Decision not renewable except where discretion abused.</p> <p>Grand-Juror.. (3) Objection to, must be made, when.</p> <p>Practice. (3) Review of matters extraneous to record.</p> <p>Murder. (4) Instruction as to degrees.</p> <p>Same. (5) Instruction limiting jury to consider evidence only with reference to first degree.</p> <p>1. The granting of a new trial is discretionary with the court below, whose decision will not be reviewed Or reversed except for a manifestly gross abuse of its discretion, causing great injustice.</p> <p>3.An objection to a grand juror, that he was not a citizen of the United States, comes too late after a plea to the merits. It is not ground for a motion in arrest of judgment.</p> <p>3. Matters outside of the record are not reviewable by the Supreme Court.</p> <p>4. A trial court is only required to charge as to such degrees of the crime of murder as there is evidence in the case tending to sustain. It is, however, its duty to charge as to all such degrees, and a failure so to do is error, if objected to in time.</p> <p>5. It appeared from the evidence that the defendant, charged with murder, was arrested more than a hundred miles from the scene of the crime, having in his possession the watch, coat and cap. of the deceased, and that, when arrested, he confessed to having taken also a race horse which had belonged to the deceased, and which he had sold in the vicinity where he was arrested; and there was, besides, other evidence which led the jury to believe that the defendant killed the deceased for the purpose of robbery: Held, that an instruction to the jury that there was “ no evidence whatever to show that the killing of the deceased was justifiable or excusable, or that there were any circumstances to bring it within the definition of any degree of murder less than the first,” is hot erroneous.-</p>

This suit is brought by Thomas Keeney, James Hill, Humphrey Hill and James Aguallo, complainants and • appellees, against José Antonio Carillo, Juan Lopez, Sebero Bargas and Francisco Maes, respondents and appellants, to enjoin the respondents from directing and using any of the water from ciénegas and springs in the Alamo canon in Doña Ana county, and from in anywise interfering with ditch of complainants there situate.- Complainants’ bill is sworn to, and requires answer…