Volume 21 — New Mexico Reports

<p>Appeal from District Court, Santa Fé° County; E. C. Abbott, Judge.</p> <p>Action by the Board of Education of the City of Santa Eé, a corporation, against Ida Astler. From a judgment for plaintiff, defendant appeals.</p> <p>Appellant was entitled to 30 days’ notice to vacate.</p> <p>C. 32, L. 1901; sec. 3347, C. L. 1897.</p> <p>Municipal boards must act formally, not informally.</p> <p>28 Cyc. 318-319.</p> <p>Corporations, private and municipal, have only such powers as are granted to them.</p> <p>Sec. 1564, C. L. 1897.</p> <p>Actions by municipal corporations must be brought in the corporate name.</p> <p>1 Dill. Mun. Corps., sec. 351; 28 Cyc. 1761.</p> <p>The lessee who has never been let into possession is not the real party in interest in a suit against an intruder for forcible entry and detainer, but the rule is different where the unlawful detainer only is the cause of action.</p> <p>Kelly v. Clancy, 15 Mo. App. 519; House v. Keiser, 8 Cal. 49; Dudley v. Lee, 39 111. 339; Anderson v. Ferguson, 71 Pac. 225; Price v. .Old, 9 Kans. 66; Miller v. Balke, 167 111. 150.</p> <p>The action was of unlawful detainer under the statute.</p> <p>Sec. 3345, C. L. 1897. ■</p> <p>Acts of municipal corporations are subject to ratification at subsequent meeting.</p> <p>2 Dillon, sec. 509 (n).</p> <p>Difference between judicial and ministerial acts.</p> <p>2 Dillon, sec. 522.</p> <p>Act may be proved by parol.</p> <p>2 Dillon, secs. 555, 557, 558.</p> <p>Misnomer of corporation name is not material if identity of corporation is unmistakable, from face of instrument or averments and proof.</p> <p>1 Dillon, sec. 34-9, and cases under footnote 5; Grafton Grocery Co. v. Home Brew. Co., 54 S. E. 349, 60 W. Y. 281; Schaefer v. Phoenix Brew. Co., 4 Mo. App. 115; Board of Education v. Greenbaum & Sons, 39 111. 610; People v. Pike, 64 N. E. 393, 197 111. 449; M. K. & T. By. Co. v. Cardwell, 70 S. W. 103.</p> <p>As to real parties in interest see:</p> <p>Tiffany, Landlord & Tenant, 1735 et seq.; King v. Beynolds, 67 Ala. 2,29; Vautone v. Cannabic, 88 Pac. 374; Yincent v. Defield, 56 N. W. 1104; Lewis v. Brandle, 64 N. W. 734; Schreiner v. Stanton, 67 Pac. 219; Aurner v. Pierce, 106 111. App. 206; Gray v. Gray, 13 Ky. 468; Goerl v. Damrauer et al., 58 N. Y. Supp. 297; Cooper v. Cambill, 40 So. 827; Harrison v. Middleton, 11 Grat. (Ya.) 527;-Drew v. Mosbarger, 104 111. App. 625.</p>

<p>Appeal from District Court, Chaves County; McClure, Judge.</p> <p>Action, by A. D. Hill and another against Joe Winkler and another. From judgment for plaintiffs, defendants appeal.</p> <p>The common law rule that all persons must fence in their live stock does not obtain in this or a majority of the western states.</p> <p>P. V. & N. E. Ry. Co. v. Cazier, 13 N. M. 131; Sears v. Fewson, lo N. M.. 132; c. 13, L. 1909; c. 70, L. 1909; Walter v. Mullis, 12 Cal. 535, 73 Am. Dec. 561; Wagner v. Yissell, 3 Iowa, 396; McPheeters v. Hannibal, etc., Co., 45 Mo. 22; Campbell v. Bridwell, 5 Oreg. 311; Clarendon, etc., Co. v. McClelland Bros., 89 Tex. 483, 50 Am. St. R. 70; Morris v. Fraiker, 5 Colo. 425; Chase v. Chase, 15 Nev. 259; Darling v. Rogers, 7 Kan. 592; Johnson v. Oreg. Short Line R. R. Co., 63 Pac. 112, 53 L. R. A. 744; N. P. R. R. Co. v. Cunningham, 89 Fed. 594.</p> <p>The privilege of pasturage on public lands is common to all.</p> <p>Buford v. Houtz, 133 H. S. 320; Sears v. Fewson, 15 N. M. 132; I-Iealy v. Smith, 14 Wvo. 263, 116 A. S. R. 1004; Taylor v. Buford, 29 Pac. 880; Martin v. Platte Yallev 'Sheep Co., 76 Pac. 571, 78 Pac. 1093; McGinnis v. Friedman, 17 Pac. 635; Hartman v.'King, 85 Pae. 382; Herrin v. Seiben, 127 Pac. 323.</p> <p>Powers of equity will not be invoked for purpose of giving one person an exclusive right to graze his cattle on public domain.</p> <p>Buford v. Houtz, 133 H. S. 320'; Sears v. Fewson, 15 N. M. 132; Healy v. Smith, 116 A. S. R. 1004; Martin v. Platte Yalley Sheep Co., 76 Pac. 571, 78 Pac. 1093; Monroe v. Cannon, 24 Mont. 316, 61 Pac. 803; Haskins v. Andrews, 12 Wyo. 458, 76 Pac. 588; Clemmons v. Gillettee, 83 Pac. 879.</p> <p>Only condition precedent necessary to entitle stock to be turned on open range is that person must have available living water therefor.</p> <p>Secs. 127 and 128, C. L. 1897.</p> <p>Section 127, C. L. 1897, is a valid law.</p> <p>Sec. 7, Organic Act, p. 43, C. L. 1897; Sec. 1850, Act Cong., p. 50, C. L. 1897; Enabling Act, sec. 16; Sec. 4, article 22, N. M. Const.</p> <p>Possession and use of water was violation of law on appellants’ part.</p> <p>Sec. 6, e. 81, Laws 1912.</p> <p>It is duty of court to sustain legislative acts.</p> <p>Baca v. Perea, 42 Pac. 162 (N. M.); Douglass v. Lewis, 3 N. Ml. -596.</p> <p>In construing statute court will look beyond language used to the intent.</p> <p>Seidler v. La Fave,'20 Pac. 789 (N. M.); Leitsendorfer v. Webb, — N. M. 34, 46.</p> <p>REPLY BRIEF OF APPELLANTS.</p> <p>Insofar as secs. 127. and 128, C. L. 1897, attempt to grant an exclusive right to public domain they are void.</p> <p>Act Cong. Feb. 25, 1885; e. 149, 23 St. Large, 321; 38 Cyc. 201; Davis v. Beacon, 133 D. S. 333; Allen v. Reed, 60 Pac. 782.</p> <p>STATEMENT OF FACTS.</p> <p>The controversy in this cause grows out of the rival claims by the parties to the pasturage of 10 sections of public domain, constituting a tract about 6 miles long and 1 to 3 miles wide. The plaintiffs in this cause had acquired, about March 31, 1914, certain leases of small tracts of land upon which were situate three wells or springs, being near the boundaries of the body of public land referred to.- Tlie water supply referred to -and controlled by plaintiffs-, was • conveniently located‘and provided a sufficient quantity to water far more live stock than the 10 sections of public land would graze fro.m year to year. The testimony of both parties substantially agreed that the 10 sections of public land produce sufficient grazing to properly sustain from 150 to 200 head of live stock. On the 1st day of March, 1914, the plaintiffs were occupying and using the tract of public domain in question, having.about 225 head.of live stock grazing thereupon. On March 27, 1914, the defendants and one B. H. Wyatt leased for a term of one year from the 1st day of May, 1914, the N. E. %.of the N. W. -section 21, township 12 S., range 26 E., and school section 16 of the same township and range. Upon the '40-acre tract first mentioned was an artesian well which had been previously used for irrigation purposes, but' which was located mear the northern portion of the 10 sections of government land herein referred to. A few days thereafter the defendants removed a portion of the fence about the artesian' well, thereby permitting the use of said water by live stock upon the public domain the possession of which is here in controversy. Defendants immediately thereafter placed upon the 10 sections of public Tand a herd of cattle of about 240 head, and claimed the right to graze such cattle upon the’ said tract of land during the term for which they have leased, and-provided waters from said artesian Well. .</p> <p>In addition to the foregoing state of facts, it is contended by appellees that the record discloses that for many years prior to the institution of this suit the 1Ó sections of land involved were, grazed by one Tobe Odem, whose rights have been acquired by appellees, and who have leased the tracts of land and .water thereupon from the widow of the said Tobe Odem.</p> <p>.Dpon these facts the district court granted the plaintiffs a permanent injunction enjoining the defendants from permitting their cattle t.o go or graze upon the 10 sections of unenclosed public, land, the title to which is in the ■United States of America, and from permitting their cattle-to-go upon isolated tracts of land leased by the-plaintiff and to dr-ink. the water from the wells and springs situated on such- leased tracts. ■</p>

<p>Appeal from' District Court, ’ Cbaves County; McClure, Judge.</p> <p>Frank McKnight was convicted of voluntary manslaughter, and ¿ppeals. Affirmed, and rehearing denied.</p> <p>As to hearsay evidence.</p> <p>1 Greenleaf Ev., 16th Ed, 99; 1 Phillips Ev. (1st Am. Ed. Crown & Hill Notes), 169; Morrell v. Morrell, 60 N. E. 1092; Ho'pt v. People, 110 H. S. 574; 1 Starlet Ev. 229.</p> <p>Canse should be reversed because of admission of irrelevant testimony.</p> <p>Wilson v. State, 29 So. 569; Deal v. State, 34 So. 23; Smitherman v. State, 49 Ala. 355; Billings v. State, 52 Ark. 303; People v. Ching Hing Chang, 74 Cal. 398, 16 Pac. 201; People v. Dye, 75 Cal. 108-112, 16 Pac. 537; Yale v. People, 161 111. 309-311, 43 N. E. 1091; People v. Betts, 54 N. W. 487.</p> <p>As to what is irrelevant, see:</p> <p>Harper v. State, 83 Miss. 402-413-422, 35 So. 572; State v. Elvins, 101 Mo. 243-246, 13 S. W. 937; State v. Huff, 161 Mo. 459-495, 61 S. W. 900; State v. Moore, 129 S. C. 494, 55 L. E. A. 96; Ealkner v. State, 23 Tex. Crim. Eep. 311-325; Hall v. Hnited States, 150 U. S. 80; Leo v. State, 63 Neb. 723, 89 N. W. 303; State v. Fournier, 108 Minn. 402-403, 122 N. W. 329; People v. Wells, 100 Cal. r459, 34 Pac. 1078; Wharton’s Crim. Ev., vol. 1, sec. 29a.</p> <p>Answers to irrelevant matter on cross-examination are conclusive.</p> <p>Wharton’s Crim. Ev., sec. 484; Stokes v. People, 13 Am. Eep. 492; Schenley v. Com. 78 Am. Dev. 359; Lang-horn -v. Com., 76 Ya. 1012; State v. Patterson, 38 Am. Dec. 699, et cetera ad infinitum.</p> <p>A motion to strike does not come too late where incompetent evidence has been received under a mistake of fact.</p> <p>People v. Pope, 108 Mich. 361, 66 N. W. 213; Baker v. People, 2 Neb. 157; People v. Colvin, (Cal.) 50 Pac. 539; Wallace v. State, (Fla.) 26 So. 713; Ortiz v. State, (Fla.) ■11 So. 611.</p> <p>Cross-examination can only relate to facts and circumstances connected with the matter stated in direct- examination.</p> <p>Bush v. French, 1 Ariz. 99, 26 Pac. 816; People v. Danby, 40 Pac. 1031; Tourtelotte v. Brown, 29 Pac. 130; State v. Smith, 49 Conn. 376; Hampton v. State, (Flá.) 39 So. 421; Adams v. State, (Fla.) 14 L. B. A. 253; Chandler v. Beal, (Ind.) 32 N. E. 597; Eacock v. State, (Ind.) 82 N. E. 1039; Anheuser B. Assn. v. Hutmacher, (111.) 21 N. E. 652; State v. Farrington, (la.) 57 N. W. 606; Seifert v. Sehaible, (Kan.) 105 Pac. 529; State v. Taylor, (La. Ann.) 14 So. 26; Consolidated Gas, etc., Co. v. State, (Md.) 72 Atl. 651; Boss v. Minneapolis, etc., B. Co. (Minn.) 113 N. W. 573; Wills v. Bussell, 100 H. S. 621; Aeolin v. Music Co., 176 Fed. 811; Young v.. Welch Mfg. Co., 201 Fed. 563; Hales v. Mich., etc., B. Co., 200 Fed. 533; State v. McKinnon, (la.) 139 N. W. 523; Pettis v. State, (Tex. Cr. App.) 150 S. W- 790.</p> <p>It was error to admit in evidence the clothing of deceased, for it simply inflamed the minds of the jurors.</p> <p>Wharton’s Crim. Ev., 13th ed., pp. 1813, 1814; Christian v. State, 46 Tex. Cr. Bep. 47, 79 §. W. 562; Cole v. State, 45 Tex. Cr. Bep. 225, 75 S. W. 527.</p> <p>To admit evidence of bad character against the accused, it is necessary that he shall have already put his character clearly and expressly in issue.</p> <p>Hnderhill Cr. Ev., 2d ed., p. 140; State v. Beckner, 194 Mo. 281, 5 L. B. A. -(N. S.) 535; Bays v. State, 50 Tex. Cr. App. 548, 99 S. W. 561; Sweatt v. State, (Ala.) 47 So. 194.</p> <p>It.is error to instruct jury where there is.no evidence to sustain instruction.</p> <p>IJ. S. v. Breitling, 20 How. 252;- .Ward v. H. S., 14 Wall. 28; Chaffee v. Boston Belting Co., 22 How. 224.</p> <p>If defendant had reasonable ground to. apprehend danger, he had the right to act on appearances confronting him at the time, even though no actual danger existed.</p> <p>Carrol v. .State, (Ala.) 58 Am. Dec. 282; State y. Harper, 149 Mo. 514, 51 S. W. 89; State v. Gorden, l9l Mo. 114, 109 Am. St. Eep. 790, 89 S. W. 1025.</p> <p>It is error for court to assume facts in instructions.</p> <p>Territory v. Kay, 21 Pae. 152; Swift and Co. v. Fue, 167 111. 443, 47 N. E. 761; Burney v. State, 6 So. 391; Nabons v. State, 2 So. 391; Snyder v. The State, 59 Ind. 105; Imphere v. State, 89 N. W. 128; Langdon y. People, '24 N. E. 874; N. J. L. Ins. Co. v. Baker, 94 H. S. 610.</p> <p>As to effect of good character and duty to instruct thereon, see:</p> <p>Wharton’s Cr. Ev., 10th ed., note p. 950; People v. Elliott, 163 N. Y. 11, 57 N. E. 104; Cancemi v. People, 16 N. Y. 501; Stephen v. People, 4 Park Crim. Eep. 396; Com', y. Webster, 5 Cush. 295, 52 Am. Dec. 711; Eernsen v. People, 43 N. Y. 9.</p> <p>An ambiguous, obscure, unintelligible or uncertain instruction should not be given, nor should one be given which requires explanation.</p> <p>Í2 Cyc., pp. 847-8, 24; Adams v. State, (Ala) 31 So. 851; People v. Bateman, (Cal.) 52 Pac. 112; Arbuckle v. State, (Miss.) 31 So. 437; State v. Pettit, 119 Mo. 410, 24 S. W. 1014; State v. Hellekson, (S. D.) 83 N. W. 254; Murmutt v. State, (Tex. Cr. App.) 67 S. W. 508.</p> <p>An instruction to the effect that jurors are not at liberty to disbelieve as jurors if you believe as men, and that oath imposes no obligation to doubt where no doubt would exist if oath had not been given is erroneous.</p> <p>Siberry v. State, 133 Ind. 677, 33 N. E. 681; State v. Euby, 61 la. 86, 15 N. W. 848; People v. Johnson, 140 N. Y. 350', 35 N. E. 604, 9 Am. Cr. Eep. 377; State v. Taylor, 57 W. Ya. 228, 50 S. E. 247; Eobinson v. State, (Wyo.) 106 Pae. 24.</p> <p>• Court ■ erred in referring jury to indictment to guide ■ them in issues .of case.</p> <p>Bryan v. Chicago, etc., By. Co., (53 la. 464; Fitzgerald y. McCarty, 55 la. 702; Porter v. Knight, 63'la. 355.</p> <p>Leading questions are permissible, in discretion of trial court.</p> <p>Territory v. Meredith, 14 N. M. 288, 292.</p> <p>As to scope of re-examination of witness, see:</p> <p>8 Ene. P. & P. 124-125; Bassham v. State, 38 Tex. 622, 625.</p> <p>Test of collateral fact.</p> <p>Wharton’s Crim. Ev. (10th ed.) 1003; 2 Wigmore on Ev., sec. 1003.</p> <p>The doctrine of harmless error was recognized in this jurisdiction in 1859.</p> <p>Leonardo v. Territory, 1 N. M. 291; 'Territory v. Vialpando, 8 N. M. 211, 219; Territory v. Herrera, 11 N. M. 129, 142;. Hnited States y. Griego, 11 N. M. 392, 409; Territory v. McGrath, 16 N. M. 202, 208-209.</p> <p>Granting or denying of motion to strike evidence after full Opportunity has been given to object at time it was introduced lies in the discretion of court, and appellate' court reverses then only for abuse of discretion.</p> <p>Allen v. Smith, 22 Ala. 416; King v. O’Brien et al., 46 Cal. 561; People v. Wallace, 89 Cal. 158; Warden v. Bradbury, 167 Pa. St. 523, 529; Judge of Probate v. Stone, 44 N. H. 593; Dugger v. McKesson, 100 N. C. 1; Mclnroy v. Dyer, 47 Pa. St. 118; People v. Long, 43 Cal. 444; People v. Bofle, 61 Cal. 540; Sharp v. Webber, 89' 111. App. 474; Toledo St. L. fe W. B. Co. v. Stevenson,. 122 111. App. 654; Falvey v. Jackson, 132 Ind. 176; Bower v. Bower, 142 Ind. 194; Cronk v. Bailroad Co., 123 la. 349; State v. Johnson, 23 Minn. 569; State v. Lohman, 175 Mo, 619; 12 Ene. P. .& P. 176; Billingsley v. State, 96 Ala. 126; Poindexter v. Orr, etc., Co.'v. Oregon E. E. Co., 33 Mont. 338; Watts v. Howard, 70 Minn. 122, 123; Hatch v. Attrill, 118 N Y. 383, 387; Clarke v. Douglass, 68 Feb. 571, 574, where the motion was made in the middle of cross-examination; Newman v. Buzard, et vir, 24 Wash. 225, 228-229; Jarvis v. State, 138 Ala. 17, 37; Eobinson v. Snyder, 25 Pa. St. 203, 207.</p> <p>Extent and limitation of cross-examination rests in dis: ■cretion of trial court.</p> <p>Territory v. Claypool et al., 11 N. M. 568, 580.</p> <p>Trait of character directly involved only may be shown!</p> <p>Underhill Crim. Ev., pp. 96, 97; 1 Wigmore Ev., sec. 59; 16 Cyc. 1266; 21 Cyc. 906; Hughes on Ev., sec. 7; 12 Cyc.- 413; 1 Wharton’s Crim. Ev., see. 59; 1 Green-leaf Ev., p. 39. Por random cases illustrating text see: People v. Chrisman, 135 Cal. 282; Kee v. State, 28 Ark. 155; State v.'King, 78 Mo. 555; People v. Farr, 43 Cal. 137; Walker v. State, 102 Ind. 503.</p> <p>If sole fact to be proved is that letter or telegram was sent or received the writing need not be produced.</p> <p>Underhill Crim. Ev., sec. 54; Connors v. State, 23 Tex. App. 378; Holcomb v. State, 28 Ga. 66; Tatum v. State, 82 Ala. 5.</p> <p>For full discussion of introduction of clothing of deceased, see:</p> <p>2 Wigmore on Ev., sec. 1157; Hughes on Ev., see. 11; 4 Ene. Ev. 275; 2 Wharton’s Crim. Ev. (10th ed.), sec. '941; Underhill Crim. Ev. 59; Hughes on Ev., sec. 21; Dorsey v. State, 107 Ala. 157; Burton v. State, 107 Ala. 108; Crawford v. State, 112 Ala, 1; Watkins v. State, 89 Ala. 82; King v. State, 13 Tex. App. 277; Hart v. State, 15 Téx. App. 202.</p> <p>For correct instruction as to character see:</p> <p>12 Cyc. 620, 621; Wharton on Ev. 241, 245; Under-hill Crim. Ev., sec. 80; 1 Wigmore on Ev., sees. 55, 56.</p> <p>Cautionary instructions on circumstancial- evidence should be given when properly applicable (Underhill Crim. Ev., sec. 6; 2 Whart. Crim. Ev., sec. 876'; 12 Cyc. 633) but are immáterial where demonstrative evidence is relied upon, rather than circumstantial evidence.</p> <p>BRIEF OF' APPELLANT ON RE-HEARING.</p> <p>Sec. 2794, Code 1915, makes it compulsory on court to instruct jury on all of the law of the cáse, whether requested so to do or not. See, also, sec. 4214.</p> <p>Defendant’s conviction deprives him of due process of law.</p> <p>See. 1, 14th Amend. Const. U. S.; Missouri Pac. Ry. Co. v. Humes, 115 U. S. 519; Cleveland, etc., Co. v. Backus, 133 Ind. 513; Ex parte McCluskey, 40 Fed. 74; Hurtado v. Cal., 110 U. S. 535; Walker v. Sauvinet, 92 U. S. 92.</p> <p>The rights of the defendant and the duty of the court are equally under the finger of the law.</p> <p>State v. Bates, 14 Utah, 300.</p> <p>STATEMENT OF FACTS.</p> <p>Appellant, Frank McKnight, was indicted jointly with his wife, Mary McKnight, for the murder of one Claude Sweazea. The trial resulted in the conviction of the appellant, Frank McKnight, of voluntary manslaughter, and the acquittal of the wife, Mary McKnight, from which verdict and judgment of the trial court this appeal was taken.</p> <p>Prior to October 10, 1913, the date of the homicide, the wife of the appellant was postmistress at Ranger Lake, N. M., in Chaves county, where she resided with her husband and children in a house which was also used as the post office. The only persons present at the time of the homicide were the appellant and the wife, Mary McKnight, who testified that about sundown of the said 10th day of October, 1913, the deceased, a young man about 25 years of age, entéred- appellant’s home in an intoxicated condition, cursing the appellant, who arose and told the deceased that he could not talk that way in his house, ordering him- to depart therefrom. The deceased replied that he would go when he got good and ready, and that when he went out, appellant would go with him, and continued to curse and defy appellant, who retreated to the east wall of the post office, and that deceased continued to advance and make demonstrations as if to draw a gun. Appellant procured a gun and fired two shots in rapid succession, whereupon the deceased reeled across the room and out of the front door into the yard, where he was followed by appellant for a short distance from the house, when the deceased turned again as if to advance upon appellant, with his hand extended as though he had a gun and was about to shoot, whereupon appellant fired several additional shots, which resulted in the death of Sweazea.</p> <p>. The defense attempted to show that the deceased, Claude Sweazea, had taken advantage of the absence of appellant, who left home on the 26th day of June, 1913, for the purpose of going to Texas to obtain work; that knowing of such absence of appellant, he made an assault upon the wife, Mary MeKnight, on the 27th day of June, attempting to commit a rape upon her, but was frightened away and did not accomplish his purpose; that returning, however, on the 30th day of June, it is claimed, he accomplished a rape upon the wife of appellant, after overcoming her resistance by the administration of chloroform. It is further contended by the defense that on the 7th or 8th day of July, the deceased again returned to the home of appellant, gaining entrance thereto by false pretenses,, and the second time accomplished a rape, again making use of chloroform to accomplish his purpose,</p> <p>¡By the state it is contended that the record discloses that the deceased, while approaching the post office at Kanger Lake, immediately preceding the homicide, met and conversed, with one Carroll M^on for a few moments, and this witness testified that the deceased was not ip .-an intoxicated condition at the time. ■ Other evidence in the record discloses that the deceased had been drinking earlier in the day.</p> <p>It was apparently the theory of the prosecution that illicit relations between the wife of appellant, Mary McKnight, and the deceased, Sweazea, had been continuing' for some period of time. It appeared that the appellant had not returned to his home after his trip to Texas until about the 16th day of July, remaining for a few days, when he again left, and did not return until the 16th day of August. The witness, Mary McKnight, co-defendant with appellant, testified that she did not tell her husband concerning the alleged assaults by the deceased until his return on the 16 th day of August, and that her failure to make an earlier disclosure was due to her desire to first ■get out of the country, as she was afraid of the deceased, who had made threats. The state evidently believed that she did not make the disclosure concerning the -alleged assaults until she found herself in a condition of pregnancy, which there is some evidence tending to show she endeavored to relieve by the use of drugs. The evidence of the state is largely circumstantial, or dependent upon alleged admissions, chiefly by the wife of appellant, as very largely testified to by a witness, Eva Harrington, who was a neighbor of the McKnights, and was called in to attend Mirs. McKnight during the evening and night following the homicide, and whose testimony will be more largely referred to in the opinion.</p> <p>The evidence is very voluminous, and will be more particularly referred to in connection with the numerous assignments of error. ■</p>

Action by W. H. Harrington and others against J. P. Atteberry and others, as members of and constituting the Board of County Commissioners in and for the County of San Juan. From a judgment for plaintiffs, defendants appeal. Affirmed.

Judge. Action by Charles Woodcock against John Cochran. From Judgment for defendant, plaintiff appeals. Landlord’s' statutory lien was not waived by taking-mortgage.

' • ' ' ” ' : ! Action by the Algodones Land & Town Company against A. J. Frank and others. From a judgment for plaintiff; defendants appeal. ■ The-court should have found appellee guilty of laches. Patterson v. Hewitt, 11 N. M. 1, 66 Pac. 552, 55' L.’ E. A. 658. Court should have found that appellee was estopped by its acts and conduct from claiming an interest in lands in question. 16 Cyc. 762, 699, 719; Stowe v. Myse,- 18 Am.

J. Leahy, Judge. Action by the Kemp Lumber Company, a corporation, against W. T. Whitlatch and others. From judgment for plaintiff, defendants appeal. The • complaint fails to state facts sufficient to constitute a cause of action,, for -it appears therefrom that plaintiff does not come within the statute.

A. Richardson, Judge. Injunction by Jacques Michelet against the Board of County Commissioners of the County of Chaves and another. From a judgment for defendants, plaintiff appeals. Petition for establishment of public road should set forth the termini, but not attempt to fix intermediate points, or to designate route. Secs. 4 and 10, c. 124, L. 1905. Viewers should mark out proposed road between termini named in petition. ' See. 10, c. 124, L. 1905.

Richardson, Judge of the District Court in and for the’ Fifth Judicial District of the State of New Mexico, and' said District Court. Even where writ of prohibition is sued out in name of State, the state is not a necessary party. ' 32 Cyc. 625; 2 Spelling Injs., sec. 1745; Cronan v. District Court, 96 Pac. (Idaho) 768. Writ of prohibition proper remedy where judgment rendered when court had no jurisdiction. ' > Lincoln, etc.,- Mining Co. v. District Court, 7 N. M. 486.

-L. .Medler, Judge. Martin McDonald was convicted of assault with a deadly- weapon, .and appeals. The cause- should be-, reversed because of statements made by the special prosecutor of things he intended-to prove but-did'not prove. He should have acted in good faith and with reasonable grounds to suppose he could prove the facts as stated. 12 Cyc. 570, “note”; 53 Pac. 359, 41 L. B. A. 157.

J. Leahy, Judge. » Suit by the Union Land & Grazing Company and others against Carmen Arce and others, wherein Elmer E. Veeder intervened and asked relief against Santiago Boney. From a judgment for Boney, intervener appeals.

L. Medler, Judge. Josiah Perkins and others were convicted of assault witli intent to kill, and appeal. Instruction 10 singles out defendants and is therefore erroneous. Hicks v. H. S., 150 U. S. 442; 12 Cyc. 609; sec. 2994. C. L. 1897; Territory v. Livingston, 13 N. M. 318. The reasonable doubt instruction was erroneous-. State v. Cohen, 108 Iowa, 208, 75 Am.

Action by George H. Buss against James M. Dye, administrator of the estate of Frank J. Chance. From judgment for plaintiff, defendant appeals. Presentation of claim to probate court, within one year after appointment of administrator is not condition precedent to right of claimant to bring suit in District Court. Sections 1967, 1999 and 2004, C. L. 1897. Presentation of claim is condition precedent.

J. Leahy, Judge. Action by the First National Bunk of Las Yegas, N. M., against John S. Clark, trustee of the estate of Aaron M. Adler, bankrupt, wherein Aaron M. Adler and others intervened. Judgment for plaintiff. Defendant and interveners appeal. Only necessary parties are mortgagee, mortgagor and those subsequently acquiring interest in property. 27 Cye. 1562-3. If action is based on contract, only proper sole defendant is promisor, in eyes of law, or his representatives.

Wilkie Carter’ was convicted of unlawfully playing a game of chance, and appeals. Error to permit cross-examination of witness Joiner on subject concerning what another absent witness said. Spencer v. Commonwealth, 107 S. W. 342; Underhill Crim. Ev., sec. 220; Wharton Crim. Ev., sec. 484; State v. Sheppard, 59 N. W. 449; Walton v. State, 55 S. W. 567; Crittenden v. Commonwealth, 82 Ky. 164, 6 Am. Crim. Rep. 200; Johnson v. State, 22 Tex.

D. Leib, Judge. Jesse Smith was convicted of unlawfully killing two-head of neat cattle, and appeals. Alibi* instruction of court threw burden of proof on appellant.

Action by W. C. Leonard and another against V. A. Greenleaf. Judgment for defendant. Plaintiffs appeal. Account stated was first known to law merchant prior to middle of 18th century. 1 T. R. 40; 1 C. J. 679; 3 Pick. 96. It constitutes a separate and distinct contract, and separate items thereof cannot be inquired into. Bartlett v. Emery, 1 T. B. 42; 1 C. J. 606; Brown & Manzanaras Co. v. Gise, 14 N. M. 282; Auzerias v. Deglee, 15 Pac. 371; 1 A. & E. Ency.

F.. Baynolds, Judge. Action by J. O. Schwentker against J. A. Hubbs and another. From judgment for defendants, plaintiff appeals. It is the duty of the court to state its findings of fact. Sec. 4197, Code 1915; Luna v. R. R. Co., 16 N. M. 7L For law of construction of contracts see: Gamble v. Cuneo, 47 N. Y. Supp. 548. In absence of specific request for certain finding no objection can be taken to court’s finding in appellate court.

Ricardo Ascarate was convicted of manslaughter,' and appeals. It was error for the court to instruct the jury on manslaughter. People v. Kelly, 140 Pac. (Cal.) 302; 21 Cyc. 1076; Territory v. Hendricks, 13 N. M. 300; Mullins v. Com., 67 S. W. (Ky.) 824;. sec. 1460, Code 1915; Logan v. State, 53 S. W. (Tex.) 694. It was error to permit statements of accused made before the coroner’s jury to be read in evidence.

C. Mechem, Judge. John E. Sakariason and others were convicted of killing one head of neat cattle belonging to another, and appeal..

Iure, Judge. Suit by Louis O. Fullen against Dorothy. B. Fullen. From decree for plaintiff, defendant brings error. No notice of the decree was given to the attorneys, and it is therefore void. Sub-sec. 136, sec. 2685, C. L. 1897. Statute requires that when notice of motion is. necessary it must be served five days before time appointed for hearing. Sub-see. 98, sec. 2685, C. L. 1897.

<p>Appeal from District Court, Santa Fé County; ML C. Meehem, Judge.</p> <p>Action by Hiarry H. Kelley against Owen N Marrón, State Treasurer. From judgment for defendant, plaintiff appeals.</p>

C. Abbott, Judge. Action by the New York Life Insurance Company against Jacobo Chaves, Superintendent of Insurance. From judgment for defendant, plaintiff appeals. A taxing act must be strictly construed, and where its construction is doubtful, the doubt must be resolved in favor of those upon whom the tax is laid.

Appeal .from District Court, Socorro Comity; M'. C. Mechem, Judge. Action by Thomas E. Watters, as trustee, against the Treasure Mining Company and others. From judgment for plaintiff, defendants appeal. The persons not made parties were drawn into this litigation only incidentally. Those parties were ’omitted by inadvertence. The statute does not require that copy of assignments of error be served on or before- the return day. Sec. 4490, Code 1915.

Jaccpiez Michelet filed a remonstrance to the report, of the commissioners of the Dexter-Greenfield Drainage District for assessments. The remonstrance' was overruled, and he appeals. Chapter 84, L. 1913, contravenes sec. 16, art. 1, State Const., in that it embraces within itself two separate and distinct subjects.

D. Leib, Judge. Action by G. L. Murry, guardian of Whitney B, Reid and others, against D. A. Belmore, Jr., and another. From judgment for plaintiff, defendant named appeals. For rule relative to damages for injury to property, see: Jacksonville Ry. Co. v. Garrison, 11 So. 932;'Wichita & C. Ry.

<p>Appeal from District Court, Bernalillo County; H. W. Raynolds, Judge.</p> <p>Action by John Stalick against Francis C.' Wilson, receiver of the Gallup Electric Light Company/ From judgment for plaintiff, defendant appeals.</p> <p>Treasurer -of a corporation has no power to bind the corporation by note signed by him, and when done there is no presumption that the same is the act of the corporation.</p> <p>Sierra Yerde Cattle Co. v. Foster, 7 N. M. 650.</p> <p>Upon appeal from default judgment the sufficiency of complaint is to be. considered as upon demurrer in this court.</p> <p>Dame v. -Cochiti Bed. & Imp. Co., .13 N. M. 10.,</p> <p>Items of account need not be set forth in a pleading, but party must deliver to adverse party, within ten days after demand, a copy of account or be precluded in giving same in evidence.</p> <p>See. 4149, Code 1915.</p> <p>Upon .application to have attorney’s fees taxed as costs burden of making complete proof of the right, and the amount is upon party claiming such costs.</p> <p>5 Standard Encyclopedia of Procedure, p. 931; Sanitary District of Chicago v. Curran, 132 111. App. 241; Bennett v. .Seattle Electric Co., 56 Wash. 407, 10.5 Pac. '8.25.</p> <p>'There was a fatal variance between pleading and proof, in that the sum of $125.00 of amount alleged to be due defendant was shown to be upon a check of a third person if the drawee bank did not pay.</p> <p>Tucker Mfg. Co. v. Fairbanks, 98 Mass. 104; 10 Cyc. 1044.</p> <p>After issue joined, judgment cannot be entered .on' default, but trial must be had as though defendant answered.</p> <p>Manlove v. Gallipot, 2 111. 390; Maddox v. Pulliam, 5 Blackf, '205 ;• Firestone v. Firestone, 78 Ind. 534; \Ar¡buekle .v, SBowman, 6- Iowa, 70; Patten v. ■ Hazewell, 34 Barb..'421',;.yPultz v. Diossyj 53 How. 270;. ¡</p> <p>As to entering of judgment without notice to appellants, see:</p> <p>Sandell v. Norment, 145 Pac. 259 (N. M.)</p> <p>The fact that the judgment was entered on Thanksgiving Day is immaterial.</p> <p>Pickering v. Justice of the Peace, 113 Pac. 619- (N. M.)</p> <p>Where damages are incidental to the primary relief asked for, same may be awarded by court without intervention of a jury.</p> <p>Mogollon Golden Copper Co. v. Stout, 14 N. M. 245.</p>

W. Raynolds, Judge. Action by Thomas McMillin against D. H. Boatright,. Mayor, etc., and others. From judgment for plaintiff, defendants appeal. ' !The answer sets up a prima facie right to the office in defendant Thomas and therefore it was error to enjoin him in taking possession. Hubbell v. Armijo, 13 N. M. 482.

<p>Appeal from District Court, Santa Fé County; E. C. Abbott, Judge.</p> <p>Action by Fred Thayer against the Denver & Rio Grande Railroad Company. From judgment for plaintiff, defendant appeals.</p> <p>Duty of. master is only to exercise reasonable diligence.</p> <p>Wonder v. B, & O. R. Co., 32 Md. 411, 1 Am. R. 143; sec. 919, Labatt’s Master & Ser. (2d ed.); Probst v. Delameter, 100 N. Y. 266; Krampe v. St. L. Brew. Co., 59 Mo. App. 277.</p> <p>Complaint must show existence of some duty which defendant owed plaintiff and breach thereof.</p> <p>2 Chitty Plead. (16th Am. ed.) 574; 29 Cyc. 566; Holt’ v. Spokane & P. Ry. Co., 3 Idaho, 783; World’s Columbian Expo, Co. v. Republic of France, 91 Fed. 64.</p> <p>Court erred in permitting, amended complaint to be filed.</p> <p>Sub-sec. 82, sec. 2685, C. L. 1897; 31 Cyc. 409; 1 Enc. P. & P. 528.</p> <p>Loretto Literary Society v. Benevolent Soe., 126 Pac. 858; same case reported as Loretto Literary Society^v. Garcia, 18 N. M. 318.</p> <p>Candelaria v. Miera, 134 Pac. 859, 18 N. M. 318.</p> <p>The last clear chance doctrine was first pleaded in the reply. A pleading is necessary to warrant submission of this theory to jury.</p> <p>29 Cyc. 583; Ford v. Chicago, etc., E. Co., 106. Iowá; 85, 75 N. W. 650; Drown v. Northern Ohio Traction Co., 81 N. E. 326, 10 L. E. A. (N. S.) 421.</p> <p>At common law contributory negligence was bar to recovery. The last clear chance doctrine is of recent origin but has been applied in this jurisdiction.</p> <p>Price v. Pecos Valley, etc., Ey. Co., 15 N. Ml 348, 110 Pae. 565; appeal dismissed by IT. S. Supreme Court, 234 U. S. 767.</p> <p>As to duty .of employer with reference to servant of mature years, see:</p> <p>26 Cyc: 1172; 26 Cyc. 1019; Arcade File Works, v. «Tuteau, 40 N. E. 818; Stanley v. Chicago, etc., E. Co., 101 Mich. 202.</p> <p>Court erred in permitting appellee to testify that he could not perform certain physical labor since accident which he could perform prior thereto.</p> <p>Whipple y. Eieh, 180 Mass. 477, 63 N. E. 5; Wimber v. Iowa Cent'. E. Co., 114 Iowa, 551; Southern, etc., E. Co. v. McLendon, 63 Ala. 266.</p> <p>Injury must be permanent in order to justify admission of evidence of life, expectancy.</p> <p>7 Ene. Ey.'4261 .</p> <p>No sufficient foundation was laid for introduction of mortality table. ■</p> <p>20 A. &■ E. Ene. L. 88'5; Notto v. Atlantic E. Co., 69 Atl. 968, 17 L. E. A. (N. S.) 1138.</p> <p>As to master’s; liability with respect to agencies of his business,' see:</p> <p>Labatt’s Mas. & Ser. (2d ed.) secs. 906, 919; 26 Cyc. 1121, 1123', 1136; Columbus, etc., E. Co. v. 'Troesch, 68 111, 545,. 18: Am. E. 578; E. Tenn. E. Co. v. Stewart, 81 Tenn. 432;'111. Cent. E. Co. v. Barslow, 55 111. App. 203; Chicago,, etc.', E. Cb. v: Montgomery, 15 111. App. 205'; Sabine, etc., By. Co. v. Ewing, 1 Tex. Civil App. 531, 21 S. W. 700; Musick v. Jacob Dodd Paeking-Oo., 58 Mo. App. 322. . ,</p> <p>Master is not insurer of servant’s safety, but only required to exercise reasonable care, and its , liability ■ can only be predicated on negligence.</p> <p>Wilson v. Bailway, 7 Colo. 101; Eailway v. Mc.Comas, 7 Colo. App. 121; Mining Co. v. Schaad,. 15. Colo. 197; Mining Co. v. O’Hara, 45 Colo. 416; Kiner v. Mining Co:, 184 Fed. 43; Patton v. Eailway, 179 U. S. 658; Doherty v. E. B., etc., p. 99; S. A. L. v. Horton, 233 W. 492; Long v. Eailway, 159 S. W. 779; Ellis v.. Eailway, 160 SW. 512; Eailway v. Kemp, 79 S. E. 558; Bowers v, Eailway, 73 S. E. 677. ' ' \ .„</p> <p>Burden of proof is on plaintiff to show master had notice of defect which caused injury. '</p> <p>Ocean S. S'. Co. v. Matthews, 86 Ga. 418; Chicago, etc., E. Co. v. Montgomery, 15 111. App. 205;' Ohio, etc., Ey. Co. v. Heaton, 137 Ind. 1; Williams v. St. Louis, etc., Ey. Co., 119 Mo. 316; Mahoney v. New York Cent., etc., E. Co., 64 Hun. 638, 19 N. Y. Supp.' 511; Hudson v. Charleston, etc., E. Co., 104 N. C. 49L ' •■ • • •</p> <p>Where facts are undisputed, it -is a question of law whether there is negligence or contributory.' negligence.</p> <p>Elkton M. & M. Co. v. Sullivan, 41. Colo. 241-252; Iowa G. M. Co. v. Diefenthalter, 32 Colo.. 391, 396, 397; Labatt’s Master & Servant, (2d ed.) secs. 1167-1168.</p> <p>Where plaintiff’s own testimony shows contributory negligence the court may direct a verdict. ,</p> <p>Hayden v. Smithville Mfg. Co., 29 Conn. .548;. Jones v. Mfg. & Invest. Co., 92 Me. 565, 69 Amer. St. Beps535, 43 Atl. 512. • . '• •</p> <p>The plaintiff assumed the risk.</p> <p>Boyd v. Harris, 176 Pa. 484; A. ,T. & S: -F. 'Ey. Co., v. Moore, 25 Kan. 632; Fletcher v. Freeman-Smith L. Co., 98 Ark. 202; Mayes v. Chicago, etc., E. Co., “63 Iowa, 562; Gtilf, ete.j R. Co. v. Williams, 72 Tex. 159; Brown v*’ Oregon Lumber Co., 24 Oreg. 315.</p> <p>The last clear chance doctrine relates simply to the question,of proximate cause. , - ,</p> <p>Furst-Edwards & Co. v. St. L. S. W. R. Co., 146 S', W; 1024p Smith ;v. Railroad, 19 S. E. 863, 25 L. R.- A.. 287; Roanoke R. & E. Co. v. Carroll, 72 S. E. 125; Nehring y. Conn.) Co.,-.86 Conn. 109. ' • ' ■ •</p> <p>The burden is upon the master to show that servant knew and understood extraordinary risks.</p> <p>King v. Ford R. L. Co., 93 Mich. 172, 53 N."W. 'Í0; Swoboda-v..Ward, 40 Mich. 423; ■ ■</p> <p>But servant is presumed to know and appreciate ordii nary, risks. •</p> <p>8 Ene. Év. 522; City of Denver v. Cappelli, 4 Colo. 25; Colo. & So. Ry. Co. v. MeGeorge, 46 Colo. Í5.</p> <p>■■ Court’s' instruction to effect that it is the duty in law, of defendant to furnish safe and suitable brakes-is generally condemned. ■' -• : "</p> <p>C. & O. Ry. Co. v. Hallaway, 114 Fed. 458; C. B. & .Q. Ry. Co. v. Mercker, 36 111. App. 195; P. D:'&E.'R. Co. v. Hardwick, 48 111. App. 562; Colo. Cent. R. R! Col v. Ogden,-3 Colo. 499; Carélton M. & M. Co. v. Ryan, 29 Colo.-401. See also C., B. & Q. R. R. Co. v. Oyster, 58 Neb! 1; Hughlev v. City of Wabasha, 69 Minn.'245,-24'8, 249‘; Belltille Pump & Skein Works v. Bender,'69 III. App. 189, 1-92; Gormully & Jeffery Mfg. Co. v.; Olsen, 72 111. App. 33; C. & E. I. R. Co. v.-Garner, 78'111. App. 291, 285; N. Y.,- T. & M. R. Co. v. Green, 90' Tex. 257, 266; Wells v. Coe, 9 Colo. 159, 160; Sampson'M.'- & M. Co. -v, Scliaad, 15 Colo. 197, 199; Mocat v. Tenhey>'-17 Colo. 189; B. & C. R. R. Co. v. Liehe, 17 Colo. 28Ó, -283-; Oman v. Mannix, 17 Colo. 564, 576; H. P. R. Co. v. O'Brien,,' 161 H. S'. 451, 457; Deane v. Light & P. Co., 5 Colo. App. 521, 524; D. &-R. G. R.'R. -Co. 'vi'McC'omas, 7 Colo. App. 121, 124; Maydole v. D. & B. G. B.'B. Co.; 15 Colo. App. 449, 452; Flovd v. C. F. & I. Co:-,-18 Colo.1App. 153, 156; McKean v. C. F. & I. Co., 18 Colo. 285, 289; Boche v. D. & B. G. E. B. Co., 19 Colo. 204, 208,</p> <p>Effect of federal employer’s liability act cannot be raised for first time in this court.</p> <p>Cadwell v. Higginbotham, 151 Pac. (N. Mr) 315:</p> <p>The amendment was properly allowed.</p> <p>See, 4162, Code 1915.</p> <p>No objection or exception having been taken to allowance. of amendment complaint, question cannot be raised here.</p> <p>Territory v. Gonzales, 14 N. M. 30; State -v. Eaker, •131 Pac. 48-9.</p> <p>Appellant cannot “mend his hold” after verd'ct. ■Savings Bankv. Woodruff, 14 N. M. 502; By. Co: v. McCarthy, 96 Hi S. 258-267; Bullard v. Lopez, 37 Pac. 1103; Johnson v. Cummings, 55 Pac. 269,</p> <p>Defective complaint is cured by subsequent pleading containing defective allegations and placing same in issue.</p> <p>Bullard v. Lopez, 7 N. M. 567; Johnson v. Cummings, 55 Pac. 269; Cowell v. South Denver Beal Estate Co., 63 Pac. 991; Ford v. Harris, 43 S. W. 199; Samuels v. Simmons, 44 :S- W. 395; Prior v. Warford, 54 S. W. -838; Deeves v. Metropolitan Bealty Co., etc., 41 N. Y. S'. 647 ; Cleveland C„ C. & S. L. By. Co. v. Teban, 26 O. Oir. Ct. Be.p. 457; Battelmiller v. Stone, 68 Pac. 168; Born v. Dowell, 50 Pac. 695; Hanson v. Wagner, 65 Pac. 142; -Colo. Fuel & Iron Co. v. Chappell, 55 Pac. 606; Howland Coal & Iron Works v. Brown, 76 Ky. 681.</p> <p>The amendment was properly allowed: the last clear chance doctrine, may be properly pleaded in reply.</p> <p>Keefe y. Chicago, etc., Ry. Co., 92 Iowa, 132-185; Denver Co. v. Dwyer, 3 Colo. App. 408; Denver Co. v. Dwyer, 20 Colo. 132; Posten v. Denver Co., 11 Colo. App. 18?; Griffith-v. Denver Co., 14= Colo. App. 501; Allen v. .Florence Ry. .Co.,- 15 Colo. App. 813 ; Denver Ry. Co. v. Bulfher Co., 30 Colo. 27-37; Nichols v. Chicago R. Co., 44 Colo. 501; Denver Co. v. Wright, 47 Golo. 306 ; Baltimore & Ohio Ry. Co. v. Iielenthal, 8S Fed. UC; Hawley v. Col. Ry. Co., 25 A. App. D. C. 1; Mates v. Union Ry. Co. of N. Y. City, 67 N. Y. Snpp 358; Gilbert v. Erie Ry. Co., 97 Fed. 747.</p> <p>Witness could state conclusion as to his inability to perform certain kinds of work after sustaining injury, though it is opinion evidence.</p> <p>Miera v. Territory, 13 N. M. 192; 17 Cyc, 29, 60.</p> <p>The mortality table was properly admitted.</p> <p>Sellars v. Foster, 27 Neb. 122, 123; Scagel v. Chicago Ry., etc., 49 N. W. 990; SchefPler v. Minneapolis R. Co., 32 Minn. 518, 8 A. & E. Ency. Law, 947-948.</p> <p>Extraordinary risks, growing out of negligence of the master, are not assumed.</p> <p>Van Kirk v. Butler, 145 Pac. (N. M.) 1032; 4 Labatt’s Mas. & Ser., see. 1362.</p> <p>Courts will take judicial notice of standard mortality tables shovving natural expectancy of human life at given ages.</p> <p>17 A. & E., section 9, page 900; .Louisville, etc., R. Co. v. Morthershed, 97 Ala. 261.</p> <p>Injury need not be permanent.</p> <p>7 Ene. Ev. 426; M. K. & T. Ry. Co. v. Simmons, 33 S'. W. 1096; Blair v. Madison Co., 81 Iowa. 313; Ronn v. City of Des Moines, 42 N. W. 582; Whelan v. New York, etc., 38 Fed. 15.</p> <p>■The master was negligent in sending servant to ride car down track, without having repaired defective brake, .or at least in furnishing servant with means to handle brake.</p> <p>4 Labatt’s Mas. & Ser., sec. 1601; N..-P.' R.. Co. v. Charles, 51 Feci. 562. ;i ■■■'</p> <p>Where question of contributory negligence Is’ subject to doubt, or where inference to be drawn from evidence concerning same is such that fair-mindéd'men may 'draw different conclusions therefrom, it is for the jury.. .</p> <p>3 Lab. Mas. & Ser., sec. 12-14.</p> <p>Master knew or should have known servant- was in dangerous position, hence negligence on its part. -' ■:</p> <p>Price v. Pecos Y. Ey. Co., 15 N. M. 348; Thompson v. Albuquerque T. Co., 15 N. M. 407.'</p> <p>Where there, is any substantial evidence.to support judgment same will not be disturbed on appeal.</p> <p>Territory v. Sais, 103 Pac. (N M.) .980; Corocran-v, Albuquerqpe T. Co., 103 Pac. (N. M.) 645.;</p> <p>STATEMENT OP PACTS.</p> <p>In September, 1912, the appellee, with others, was employed by the appellant company at Santa ‘Fé, N M., to work at Delta, Colo., icing refrigerator cars. On. the evening of the 6th of September, 1912, the ice house was.; opened, and certain cars which had been standing up above the ice house switch were placed in position for icing. . The first car iced was a fruit grower’s express car, No. 22445. One Jenkins was the foreman in charge of-the night gang. The appellee commenced'workihg about 7 o’clock that evening, and was working' inside tlie first' car, attending to the placing of the ice in the. proper receptacles. After the first car was iced, the foreman, Jenkins, called one of the men, Santiago Quintana, and told-him to take a torch and go down the ice .house switch (which has a’grade of about one-half of 1 per cent.), and stand about 20 yards back from the switch for the purpose of -signaling the place for the car to be stopped. After Quintana-had started down the switch, the foreman-told the: plaintiff to go up oh top of the car and ride it’ flown the switch' track, stopping it at the point' where he saw the-- light.' The plaintiff asked no instructions from the foreman, nor did the foreman give him any instructions other than those stated; that is, to go up on top of the car and iride -it down to the switch, stopping it at the .point 'Where :hb saw the .light. The appellee got on top of the ear, “kicked out the clipper,” and found that the brake was loose, and turned the wheel back and forth; appellee’s' testimony being to the effect that, the brake was 'not set when he. got on the car. Some of the men removed á wooden, block from in front of the car, and with pinch bars started the car downgrade, The distance from the switch stand' to the- point where the first car was iced was. 1,100 feet. After appellee mounted the car as testified to by him, he made no effort to set the brake until he rode to within a distance of about 25 yards from where Quintana was standing with the light. Then he tried to put on the brake to stop at that point, but could not stop the car, as the' brake would not catch. After he passed Quintana, he called to Quintana to get up and help him. Just at this moment 'he looked back and saw an engine approaching the 'ear. . He saw his safety could only be secured by holding.onto the brake, which he did until the engine and.car collided. From the effects of the shock he was thrown off on the left-hand side of the track, and sustained a broken leg, his face was cut and bruised, his teeth knocked loose, his jaw on one side affected, and his hearing injured. He was picked up by either the engineer or the brakeman, placed on the rear of the engine, and carried to the depot, from 1,200 to 1,500 feet down the track. After .remaining there a while, he was taken .to a hotel, and the next day taken to the railroad hospital at Salida, Colo.', where he remained about ten days, and was then discharged, returning to his home in Santa Fé. He testified at the time of the trial that his leg had not recovered; that he still suffered pain at the point of the break; that his hearing was gradually growing worse; and that he.'.was not. able to chew on the side of his- jaw that was injured.:.. . -</p> <p>And the appellee further testified that at the moment he first saw the engine the rear of the engine was advancing toward the car on which he was riding. The collision occurred just east of the switch stand upon the main line. The car upon which appellee was riding had come down off the ice house switch, running through the switch point onto the main line.</p> <p>There is a conflict in the testimony of the engineer and brakeman and appellee as to the direction in which the engine was headed. Appellee testified that the engine was headed east, so that the rear of the engine tank collided with the car upon which he was riding. The engineer and brakeman testified that just prior to the accident they had come in from the east, and that their engine was headed west toward the ice house, and that just prior to the accident they had been setting out the train which they had just run in from the east. The engineer further testified that just prior to the accident he had set out a portion of the train upon another switch, and had pulled out of the switch up to the main line and beyond the switch stand on the ice house switch, and had reversed his engine, and was backing down the main line to couple onto his caboose, which he had left standing in front of the depot. He was sitting in the cab on the right-hand side of the, engine, which would be next to the ice house switch. Just after he had reversed and started back he saw the car coming down the ice house switch in the same direction in which he was going, and at the same moment he heard a'man “yell,” but saw no one. He instantly realized that he would not have time to again reverse his engine and pull out of the way of the car because before he could stop his engine the ear would have “side swiped,” and probably have killed him. He instantly opened up the throttle and backed clown the track ahead of the car, passing the switch stand point just in time to avoid being hit by the car. After getting in ahead of the refrigerator car, he slowed down and let the refrigerator car catch up with him and stopped both the car and his engine. The shock of the collision was suffieient to knock appellee off the top of the car when the car collided with the engine. The engine had an ordinary headlight, but did not throw any light upon the top of the approaching car so that the engineer could see any one upon the ear. When he first saw the ear the front end of the same was practically opposite where he was sitting in the cab. ,</p> <p>Upon the trial, a witness, Abel Benavides, testified that prior to the icing of the car he went up above the ice house and rode the car down and spotted it in front of the ice house, using the brake, and that when the' car was spotted he set the brake. On the other hand, appellee testified that the brake was not set when he mounted the car .and attempted to release it. After the accident this car was pushed up on the switch and blocked by the brakeman. Within less than an hour thereafter the car was picked up by an outgoing train and carried to Grand Junction, some 50 miles distant. This particular car reached Grand Junction within less than four hours after the accident, and was there inspected, but the testimony of the inspector shows that he did not try the hand brakes at all, that his inspection lasted about one and a half minutes to the car, but he testified that his inspection showed that the brake rigging on this car was in good shape.</p> <p>The evidence shows that appellee remained on crutches until December 2, 1912, and that since that date he has worked at various jobs. Upon the trial of the case, over the objection of the defendant, the court submitted to the jirry both the issue of primary negligence and the “last-clear chance” rule. The jury returned a verdict in favor of appellee for $5,000. Motion for a new trial having been overruled, judgment was entered accordingly, from which judgment defendant prayed this appeal.</p>

<p>Appeal from District Court, Bernalillo County; H. F. Raynolds, Judge.</p> <p>Action by Grover William Harrison against George W. Harrison. From a decree of dismissal, plaintiff appeals.</p> <p>The guardian is liable for interest and annual rents.</p> <p>Sees. 1453, 1454, 1469, 1471, C. L. 1897.</p> <p>No ease goes to the extent of holding that relief will be refused where it is alleged that the settlement was made without an account at the time being produced, or showing the situation of the ward’s property.</p> <p>Woerner on Guard. 360; Shannon’s Estate, 1 Phila. Bep. (Penna.) 299; 6 Lancaster Bar, 62 (Penna.); 8 Lancaster Bar, 108, (Penna); Hemphill, etc., v. Lewis, 7 Bush, (Ky.) 214.</p> <p>Contract made by guardian with his ward, soon after latter comes of age, is looked upon with suspicion by the courts, and if procured by fraud, misrepresentation or undue influence, or if unfair'to the ward, will be set aside.</p> <p>Malone v. Kelly, 54 Ala. 53.2; Williams v. Davidson’s Estate, 94 N. W. 1048; Berkmeyer v. Kellerman, 32 Ohio, 239, 30 Am. B. 577; McParland v. Larkin, 39 N. E. 609; Gale & Wisner v. Wells, 12 Barb. 84; Eberts v. Eberts, 55 Pa. 110; Spaulding v. Brant, 3 Md. Chan. 311; Meek v. Perry, 36 Miss. 190.</p> <p>Burden of proving good faith rests on guardian.</p> <p>Wade v. Lobdell, 4 Cush. 510 (Mass.); Sullivan v. Blackwell, 28 Miss. 737; Kinter’s Appeal, Eerting’s Estate, 62 Pa. 318.</p> <p>To sustain private settlement, guardian must show that he fully and clearly disclosed condition of ward’s estate at the time of settlement, and that it was fair and equitable.</p> <p>Adams v. Beviere, 59 Ga. 793; Gillett v. Wiley, 126 111. 310; Huff v'. Wolff, 48 111. App. 589; Both’s Estate, 150 Pa. 261; Beedle v. Small, 62 Ind. 26; Bruce v. Doolittle, 81 111. 103; Griffith v. Godey, 113 TJ. S. 89; Hart v. Cannon, 133 N. C. 10; Estate of Dow, 133 Cal. 446; MeConkey v. Cockey, 14 Atl. 465; Gregory v. Orr. 61 Miss. 307; Jackson v. Harris, 66 Ala. 565; Line et al. v. Lowder et al., 23 N. E. 758; Berkmeyer v. Kellerman, 32 Ohio, 239; Yan Beeves v. Witzenberg, 112 Iowa, 30, 83 N. W. 787.</p> <p>A tender back of what was received is not a condition precedent. „ '</p> <p>McParland v. Larkin, 155 111. 84; Leeson v. Anderson, 99 Mich. 247, 58 N. W. 72; Line v.-Lawder, 23 N. E. 758; Yennard Estate, 50 La. Ann. 808; Bist v. Hartner, 44 La. Ann. 430.</p> <p>Ward should not be sent to probate court to prove his claim.</p> <p>Sledge v. Bone, 57 Miss. 222; Hagerty’s Ex. v. Scott, 10 Tex. 525; Coleman v. Peckham, 136 Ind. 19.8; Johnson v. Miller, 33 Miss. 553; Lataillade v. Orena, 91 Cal. 565, 27 Pac. 924; Klemp v. Winter, 23 Kan. 492; Old-ham v. Trimble, 15 Mo. 145; 36 Hun. (N. Y.) 497.</p> <p>The appellant should have been adjudged the heir of his sister.</p> <p>Sec. 2033 does not apply, nor is there other legislation which controls the question; hence a solution of the question depends on the common law.</p> <p>Sec. 2871, C. L. 1897; Baker v. Mattocks, 69-; Guthrie’s App., 37 Pa. St. 9; 2 Sutherland Stat. Const., secs. 453, 454; Sandoval v. Albright, 14 N. M. 345; Dye v. Cary, 12 N. M. 460; 2 Blaekstone’s Comm. 208, 212; 1 Chitty’s Black., book 2, 167, 171; Sprague’s Abridg. Black. 185, 186.</p> <p>Finding will not be disturbed if there is any substantial evidence to support same.</p> <p>■ Richardson v. Pierce, 14 N. M. 334; Eagle Mining Co.' v. Hamilton, 14 N. M. 271; Hancock v. Beasley, 14 N. M. 239; Ortiz v. Bank, 12 N. M. 519; Marquez v. Land Co., 12 N. M. 445; Carpenter v. Lindauer, 12 N. M. 388; Rush v. Eletcher, 11 N. M. 555; Romero v. Coleman, 11 N. M. 533; Gale & Earr v. Salas, 11 N. M. 211; Patterson y. Hewett, 11 N. M. 1; Badaracco y. Badaracco, 10 N. Ml 761; Torlina v. Torchlight, 6 N. M. 54; Romero y. Desmarais, 5 N. M. 142; Clark v. Gold Mining Co., 5 N. M. 356.</p> <p>The settlement estops the ward from claiming anything further.</p> <p>Brown v. Adkinson, 58 S. W. 524; Korn v. Exec, of Becker, 4 Atl. 434; Hoyt v. Spragle, 103 H. S. 596;' Motley v. Motley, 45 Ala. 555; Buckner v. Buckner, 10 Ky. L. 78; Vaughn v. Bibb, 46 Ala. 1-53; Biekerstaff v. Marlin, 60' Miss. 509; Manning v. Banks, 62 Mo. App. 666; Kittredge v. Betton, 14 N. H. 40; Rhodes v. Robie, 9 App. Cases D. C. 305; Satterfield y. John, 53 Ala. 127; Adams v. Reviere, 59 Ga. 793; Eeilder v. Harbison, 20 S. W. 508; Kirby v. Taylor, 6 Johns Ch. 242; Kirby v. Turner, Hopk. Ch. .309; Downing y. Smith, 4 Redf. Sur. (N. Y.) 310; Donaldson v. Donaldson, 1 Ohio S. & C. P. Dec. 239; Dunsford v. Brown, 19 S. C. 560.</p> <p>Receipt in full by ward is valid though it is not shown ward had legal advice, or was advised by older persons.</p> <p>Kirby v. Taylor, 6 Johns. Chanc. 242; 21-Cye. 170; 8 Cye. 504; Smith v. Smith, 91 Am. Dee. 761; Gratz’s Executors "y. Cohen, 11 How. 1; Harper v. Taylor, 193 Eed. 944; Adams v. Hopkins, (Cal.) 69 Pac. 228; Gris-wold-v. Pierate, 110 Cal. 259, 42 Pae.- 820; Lamphear v. Ketcham, 37 Pac. 119; H. S. v. Choteau, 102 H. S'. 603, 26 L. Ed. 246.</p> <p>Compromise will not be set aside because ward’s counsel made a mistake as to the law.</p> <p>Georgia Home Ins. Co. v. Wharton, 113 Ala. 479, 59 Am, St. Rep. 129; Kleinman v. Geiselffiann, 114 Mo. 437, 35' Am. S't. EepV 761; Dunn v. Com., 8 Fed. Cas. No. 4174; Territory v. Newhall, 15 N. M. 141, 103 Pac.- 982;-Dye v. Crary, 13 N. M. 439.</p> <p>Appellant did not inherit estate of his deceased sister.</p> <p>Sec. 2033, C. L. 1897.</p> <p>STATEMENT OP PACTS.</p> <p>George W. Harrison, the appellee, was married to Guadalupe Perea Harrison, widow of Jose Leandro Perea, on the 2d day of September, 1885. Mrs. Harrison inherited considerable property from her former husband. There was born, as the issue of her marriage with Harrison, two children, Grover William Harrison, the appellant, and Maria Guadalupe Harrison. Grover was born March 31, 18S7, and Maria October 17, 1889. Mrs. Harrison'died October 22", 1889, survived by her husband and the two children named, possessed of a large separate estate. Maria, the daughter, died December 2, 1889, the owner of an undivided interest in the estate left by her mother. On the 6th day of January, 1890, the appellee was appointed administrator of the estate of Guadalupe Perea Harrison, his deceased wife, and duly qualified as such. Thereafter, on the 1st day of March, 1890, he filed an inventory, as such administrator, showing the total amount of assets coming into his hands, as such administrator, in the sum of $47,989.44. Thereafter, on December 31, 1894, said administrator filed a final report, in which he charged himself with a balance of $35,933.82. At approximately the same time that he took out letters of administration upon the estate of his deceased wife, he applied for and was granted letters of guardianship over the person and estate of his son, Grover. On the 7th day of January, 1895, appellee, as administrator, distributed to himself, as guardian of his son, the sum of $13,475, being his son’s proportionate part of the moneys in his hands as such administrator, as shown by such final report. In 1898, said guardian filed the only report made by him to the probate court of Bernalillo count}', as such guardian, in which, he charged himself with certain items, aggregating slightly more than $16,000.</p> <p>At the time appellant became of age he was attending school in Chicago. His father came to visit him there, shortly before he arrived at his majority, and remained with him until after his twenty-first birthday.. A day or two after the son reached his majority the father arrived at a settlement with him, by which he deeded to the son a piece of property in St. Louis, which he claimed was worth $13,500, but which is disputed by the son, and gave him two notes of no value, and obtained from the son a release in full, as such guardian. Some two or three months thereafter the son, becoming suspicious of the fairness of the settlement, took legal advice from a firm of Chicago attorneys, who corresponded with Hon. Neill B. Field, a reputable and reliable attorney of Albuquerque, N. M. Mr. Field, in pursuance of his employment through the Chicago attorneys, by letter to appellee, gave notice that the ward repudiated the release, and called upon the guardian to make full disclosure of all his transactions as such guardian. No report was ever made by the guardian to the court, save as above stated, nor was a report or statement submitted by the guardian to Mr. Field. Mr. Field caused an investigation to be made of the probate record in Bernalillo county, from which investigation, and personal knowledge which he possessed of one item properly chargeable against the guardian, he discovered that the guardian was indebted to the ward in the principal sum of $26,957.90. Mr. Field wrote the guardian a second letter, calling his attention to the various items making up the total, and saying that if he had in his possession anything which showed that his statement was not in accordance with the reports made by the guardian under oath, and other records made by him under oath; in petition for leave to sell, etc., that he would be glad to consider them. The guardian did not dispute the correctness of this statement, prepared by the attorney, but agreed with the attorney for the ward that he would pay $10,000. in cash and permit the ward to retain the title to the St. Louis property in full settlement of the trust estate. This proposed settlement was communicated to the son, by the Chicago attorneys, and he agreed to accept the same. A formal release was prepared by the attorneys and signed by the ward, fully releasing the guardian, and ratifying all his acts as such.</p> <p>At the time of Mrs. Harrison’s death she was the owner of-real estate in several counties within the territory of New Mexico. The guardian had applied to the probate court in these counties for permission to sell the ward’s interest in the real estate therein situated, owned by his mother at .the time of her death, which permission had been granted, the sales made and reported to the court in some instances in suclr counties, but no report of such sales had ever been made to the probate court in Bernalillo county. At the time the settlement was made with the guardian, through the attorneys above named, neither the ward nor such attorneys had any knowledge of some of such sales, and the guardian did not advise any of such parties of the facts relative thereto. About three years after the signing of the last release, this suit was instituted in the district court' of Bernalillo county, to set aside the said release, and to require the guardian to make a full report of his acts and doings as such.</p> <p>In his amended complaint, in addition to the above facts, appellant alleged that under the law of the territory of New Mexico, as it existed in the year 1889, when his sister died, he was the sole and only heir of his sister, Maria, and was entitled to the whole of her estate; that the same had been- converted by his guardian to his own use, etc. To the amended complaint, a demurrer was interposed by appellee, upon the ground, among others, that it showed upon its face that the portion claimed as heir of Maria Guadalupe Harrison went to the father and not the appellant. The court sustained the demurrer to that portion of the amended complaint having reference to the estate left by Maria Guadalupe Harrison, deceased, and overruled it as to the other ground, whereupon the appellee answered, admitting some and denying other allegations of the amended complaint and setting up the stipulation and release. Trial was had to the court, without a jury, who found for the appellee, and entered a decree of dismissal, from which demee Grover William Harrison appeals.</p>

<p>Appeal from District Court, McKinley County; H. F. Raynolds, Judge.</p> <p>Action by Matt Melkusch against the Vi(.dor American-Fuel Company. From a judgment Cor defendant, plaintiff appeals.</p> <p>Servant did not assume the risk on account of breach by master of duty imposed upon him hy statute.</p> <p>O. 80, Laws 1912; sec. 234-3, C. L. 1897; Nacramore v. Cleveland C. C. & St. L. E. E. Co., 96 Fed. 298; Fitzwater v. Warren, 42 L. E. A. (N. S.) (N. Y.) 1229; Welch v. The Waterbury Co., 206 N Y. 522; 5 Labatt’s Mas. & Ser. 5061; Johnson v. Mammoth Vein Coal Co.> 19 L. E. A. (N. S'.) 646; Low v. Clear Creek C. Co., 33 L. E. A. (N. S.) 656; 3 Labatt’s Mas. & Ser. 1208; Cheek v. Mo., K. & T. Ey. Co., 131 Pac. 624; Lb .Roy v. M!o., K. C T. Ey. Co., 138 Pac. 646; Drugalis v. Northwestern Imp. Co., 83 Pac. 101; Green v. Westerc Amer. Co., 70 Pac. 315; Davis v. Polland, 62 N. E. 492.</p> <p>As to when case is for jury, see:</p> <p>Labatt Mas. & Ser., p. 4988; Abb. Civ. Jury Trials, 606; Left Fork Coal Co. v. Owens, 159 S. W. 703; Fuson v. New Bell Jellico Coal Co., 159 S. W. 619; Collins v. Anth. Coal Co., 88 Atl. 75; Deserant v. Cerrillos Coal & Ey. Co., 178 U. S. 409.</p> <p>Evidence insufficient in degree to permit case to go to jury.</p> <p>8 Ene. Ev. 852; Iiart v. Hudson Bridge Co., 84 N. Y. 56; Jones v. N. C. Ey. Co., 67 N. C.' 122.</p> <p>Injury was caused by appellant’s own negligence, hence he cannot recover from appellee.</p> <p>White Per. Inj. in Mines, see. 136, and cases cited.</p> <p>As a matter of law appellant assumed the risk.</p> <p>O’Neal v. Ey. Co., 9 Fed. 337; Woodworth v. Eailway Co., 18 Fed. 282; D. & E. G. Ey. Co. v. Nargate, 141 Fed. 247; Bailey’s Master’s Liabilitjr, Injuries to Servants, p. 151, p. 22; Paul v. Florence Mining Co., 50 N. W. Eep. 189; Allridge v. Furnace Co., 78 Mo. 559; Curley v. Huff, 5 Am. Neg. Eep. 668; Syndicate v. Murphy, 60 S. W. Eep. 182; Quimm v. Baird, 7 Am. Neg. Eep. 712; St. Louis, etc., E. Co. v. Irwin, 37 Nans. 701, 16 Pae. 146; Melzer v. Peninsular Car Co., 76 Mich. 94, 42 N. W. 1078; Fisher v. Chicago, etc., E. Co., 77 Mich. 546, 43 N, W. 926; Williams v. Delaware, etc., E. Co., 116 N. Y. 628, 22 N. E. 1117, 42 Am. & Eng. E. Cas. 254; Bailey v. Borne, etc., Co., 49 Hun. 377, 19 N. Y. S'. E. 656; Spencer v. N. Y., etc., E. Co., 51 N. Y. S. E. 386, 67 Hun. 196; Johnson v. Oregon, etc., E. Co., 23 Oregon, 94, 31 Pac. Eep. 283; Sweeney v. Central Pac. E. Co., 57 Calif. 15, 8 Am. & Eng. E. Cas. 151; Doyle v. St. Paul E. Co., 42 Minn. 79, 43 N. W. Eep. 78.7, 41 Am. & Eng. E. Cases, 376; Drake v."Union Pac. E. Co., 2 Idaho, 453, 21 Pac. Eep. 560; Louisville, etc., E. Co. v. Hanning, 131 Ind. 528, 31 N. E.. 187, 53 Am. & Eng. E. Cas. 452; Michigan, etc., E. Co. v. Smithson, 45 Mich. 212, 7 N. W. 791, 1 Am. & Eng. 101; Gaffney v. New York, etc., E. Co., 15- E. I. 456, 7 Atlantic, 284, 31 Am. & Eng. E. Cas. 265; Latremouille v. Bennington, etc., E. Co., 63 Vt. 336, 22 Atl. 656, 48 Am. & Eng. E. Cas. 265; Gibson v. Erie E. Co., 63 N. Y. 449, 20 Am. Eep. 552; Priestly v. Fowler, 3 Mees & W.</p> <p>For distinction between assumption of risk and contributory negligence, see:</p> <p>Schelmmer v. Buffalo, etc., Ey. Co., 220 H. S. 591; Narrowmore v. Cleveland, etc., E. Co., 37 C. C. A. 499; Texas Pac. Ey. Co. v. Archabald, 170 H. S. 665; Dist. Columbia v. McEiligott, 117 H. S. 621; Anderson v. Smith, 35 App. Cas. (D. C.) 93; Maki v. U. P. Coal Co., 187 Fed. 391; Mining Co. v. Bateman, 176 Fed. 57; Seaboard Air Line Co. v. Horton, 34 Sup. Ct. Eep. 635.</p> <p>As to power to direct a verdict, see:</p> <p>Gunn v. Union E. Co., 62 Atl. 120.</p> <p>STATEMENT OF FACTS.</p> <p>The complaint in this cause alleged that the plaintiff below, who is appellant here, was op the 26th day of April, 1913, engaged in the service of the defendant as a coal miner; that it was the duty of the defendant to furnish plaintiff with a safe and suitable place in which to perform his work, and to provide him with safe and suitable tools, props, and equipment with which to perform such services; that plaintiff requested timber to be used for the purpose of properly supporting the roof of the room in the mine of the defendant company, where plaintiff was employed as a miner, for a period of two or three days prior to the accident; and that the defendant and its employes failed and neglected to supply plaintiff with the timber requested, or with any timber for the support of the roof; and that by reason of this neglect the plaintiff was injured; and that the roof of sqid room fell because of the failure and neglect of the defendant and its officers, servants, and agents to supply timber. The accident occurred on the 26th day of April, and was a result, as alleged by plaintiff, of a fall of a portion of the roof of the room where he was engaged in the service of the defendant at the time, which resulted in the crushing of the right arm of the plaintiff, necessitating its amputation. The defendant below by way of answer, after denying the essential facts upon which its negligence is predicated, pleaded assumption of risk by the plaintiff, contributory negligence, and the fellow-servant doctrine. Reply denying the new matters pleaded in the answer was filed by the plaintiff, and the cause proceeded to trial. After both parties had introduced all their evidence, the defendant moved for an instructed verdict, setting forth in its motion fifteen grounds upon which it relied for the relief sought. Only three of these grounds need be .stated, as the remainder were either without merit or were obviated by an amendment to the complaint which upon motion the plaintiff was allowed to make. They were as follows:</p> <p>“First. The complaint filed herein does not state facts sufficient to constitute a cause of action.</p> <p>“Second (Sixth). The plaintiff (complaint) in this case and the testimony on hehalf of the plaintiff, supplemented by the testimony introduced on behalf of the defendant, discloses as a matter of law that plaintiff assumed the risk of the accident which befell him at the time and place mentioned in the complaint.</p> <p>“Third (Twelfth). It appears from the testimony in this case that plaintiff was guilty of a positive and distinct violation of the statutes of this state in failing to take down or prop the roof of coal and caused the injury complained of.”</p> <p>'The motion was sustained, apparently upon the theory that the evidence disclosed that plaintiff was guilty of the violation of a statute, and that such violation of law contributed proximately to his injuries. The statute in question will be found quoted in the opinion. From a judgment dismissing the complaint on the merits, this appeal is prosecuted.</p>

<p>Appeal from District. Court, Roosevelt County;' John T. McClure, Judge.</p> <p>W. A. Strickland was convicted of unlawfully making threats, and appeals.</p> <p>The indictment is insufficient.</p> <p>See. 1584-, Code 1915; Territory v. HubbelT, 13 N. M. 579; U. S. v. Cruikshank, 91 H. S. 557; U. S. v. Mills,. 7 Pet. 14-2; U. S. v. Cook- 17 Wall. 174; People v. Schmidt, 94- Cal. 419; Davis v. State, 37 Tex. Cr. E. 47, 66 Am. St. E. 791; People v. Hoffman, 58 Pac. 856; 38 Cye. 296; Slover v. Territory,. 4-9' Pae. 1009.</p> <p>The indictment charges an offense- under the statute.</p> <p>Sec. 1584, Code 1915.</p> <p>Threats charged amount to threat to do an unlawful injury.</p> <p>People v. Barondess, 133 N. Y. 649, 31 N. E. 240; People v. Hughes, 137 N. Y. 37, 32 N. E. 1105; People v. Weinseimer, (N. Y.) 117, App. Div. 603, 102 N. Y.'S. 579 (affirmed by Court of Appeals, 190 N. Y. 537, 83 N. E. 1129); Commonwealth v. Wilson, 30 Pa. Super Ct. 26.</p>

McClure, Judge. Action by Till Walters against William Battenfield. From a judgment for plaintiff, defendant appeals. Appellee had the- affirmative, and the burden did not ■ shift. The answer was argumentative and did not confess and avoid. 2 Jones Comm, on Ev., sec. 177; Simonton v. Winter, 5 Pet. 141; Scott v. Wood, 22 Pac. (Cal.) 871; Freemont, Elkhorn & Missouri Yalley Bailroad C.o. v. Harlin, (Neb.) 36 L. E. A. 417; Mobley v. Lyon et al., 134 Ga. 125, 19 Ann.

A. Richardson,’ Judge. Action by J. A. Wilson 'and others against J. Robinson and another. From a judgment for plaintiffs, defendants appeal;'' Relationship between parties to a transaction does not of itself create prima facie presumption of fraud in transaction.' ' Shealy v.' Edwards, 75 Ala. 411;- Duffield v. Deíancey, 36 111. 258; Norfolk City Nat. Bank v. Bridgers, 114 N. C. 383; Lane v. Stárr, 1 S. D. 107; Gottlieb v. Thatcher, 151. U, S'. 271,. 38 L. Ed. 157.

Albert Johnson was convicted of larcenj’-, and appeals. Cort erred in giving oral instructions to jury. ■ Sees. 2793, 2794, 2796, 2800, Code 1915; Territory v. .Perea, 1 N. M. 627; Territory v. Lopez & Casias, 3 N. M. .156; United States v. Densmore, 12 N. It. 108. ■ No exception was taken to action of court in orally instructing jury until after jury had returned their verdict. Therefore the appellant cannot now' be heard to raise the .question.

C. Abbott, Judge. . Joe Coppinger was convicted of pasturing animals in violation of Comp. Laws 1897,'§ 102. and appeals.- Sec-. 102, C. L. 1897, is in conflict with the Constitution and enabling act. . ■- See.' 2, art. 21, Const. N. M.; Gibson v. Sehoteau, 13 Wall. 92; Jourdan v. Barrett, 4 How. 169;. Canfield v. H. S., 167 H. S. 518; Buford v. Houtz, 133 H. S; 32. The last- mentioned section has been repealed. . C. 28, L. 1901; c. 73, L. 1901; c. 130, L. 1905; c; 73.

• Appeal from District Court, Socorro County; M. C. Mechem, Judge. Action by Charles B. Bruton against John E. Sakariason. and others.. From a judgment for plaintiff, defendants appeal. ■ Where findings are not supported by substantial evidence they will be set aside on appeal. Locke v. Murdock (just decided, but not reported).; Fraser v. Bank, 18 N. M. 340; Millheiser v. Long, 10 N. M. 99.

A. Richardson, Judge. Action by C. M. Arnold and another against M. Y. Wells and another. From a judgment for plaintiffs, defendants appeal. Broker to recover must allege he was employed to sell property; that he sold it; that he furnished purchaser, and if sale was not made that failure to complete same was caused by fault of principal.

L. Medler, Judge. Action by Adelina E. Jaramillo (de Welborn) against J. I. Lovelace. From a judgment for plaintiff, defendant appeals. Under the facts the defendant was not guilty of conversion. Eégulations Postoffice Department (Ed.’ 1913) sec. 350. As to condition of evidence to warrant directed verdict see: Gildersleeve v. Atkinson, (N. M.) 27 Pac. 477; Lutz v. Atlantic & Pac. E. E. Co., (N. M.) 30 Pac, 912; Lock-hart v. Wills!

D. Lieb, J udge. Action by the State against John Eiley and others, to collect the penalty of an appearance bond. From a judgment for plaintiff, defendants appeal. Under common law if bail surrender defendant prior to final judgment on scire facias it was considered a satisfaction of bond upon payment of costs. 1 Tidd’s Prac. 283.

<p>Appeal from District Court, Bernalillo County; Mechera, Judge.</p> <p>Action by the First National Bank of Albuquerque against Roderick Stover. From a judgment for defendant, plaintiff appeals.</p> <p>Plaintiff was a holder in due course.</p> <p>Secs. 52, 56, L. 1907, pp. 172-3; Arndt v. Aylesworth, 123 N. W. 1000.</p> <p>Suspicious circumstances alone not sufficient to prevent recovery.</p> <p>Valley Savings Bank v. Mercer, 97 Md. 458, 55 Atl. 435; Hutchins v. Langley, 27 App. D. C. 234; Ketchem v. Covin, 35 Misc. R. 375, 71 N. Y. Supp. 991; Matlock v. Scheurman, 51 Or. 49, 93 Pac. 823, 17 L. R. A. (N. S'.) 747; Aldrich v. Peckham, 74 N. J. Law, 711, 68 Atl. 345; Kipp v. Smith, 137 Wis.'234, 118 N. W. 848; Rice v. Barrington, 79 N. J. Law,' 806, 70 Atl. 149; Jefferson Bank v. Chapin an-White Lyons Co. (Tenn.) 123 S. W. 641; Dorsey v. Wellman (Neb.) 122 N. W. 989.</p> <p>The note in controversy is a negotiable instrument.</p> <p>P. 165, L. 1907; U. S. F. & G. Co. v. Board of Commissioners, 145 Fed. 148; Capron v. Capron, 44 Yt. 412; Protection Ins. Co. v. Bill, 31 Conn. 534; Jacobs v. Gibson, 77 Mo. App. 246; Anniston L. & T.' Co. v. Stockney, 19 So. 65; Nat’l Bk. Commerce v. Kinney, 83 S. W. 371; Farmer, etc., v. Graettinger, 107 N. W. 172; Bank v. Buttery, 116 N. W. 341; Stitzel v. Miller, 250 111. 72, 95 N. E. 53; Mo. Lincoln T. Co. v. Long, 120 Pac. '292; Navajo County Bank v. Dolson, 126 Pac. 156; Barde v. Loukonen, 127 Pac. 948; De Groat v. Focht, 131 Pac. 173.</p> <p>Joint request for directed verdict, in form in which it was made, made court trier of fact, and every issue fact must be deemed answered in favor of defendant.</p> <p>Bank v. Woodfuff, 14 N. W. 502; Bank of Commerce v. Broyles, 16 N. M. 414; Beutell v. Magone, 157 D. S. 154; Kurtz v. Peck, 113 N. Y. 222; Stanford v. McGill, .6 N. Dak. 536; Bankers’ Co. v. State Bank, 150 Fed. 78; City of Defiance v. McGonigal, 150 Fed. 689; Ins. Co. v. By. Co., 134 Fed. 794; Ins. Co. v. Kerr, 129 Fed. 723; Dailey v. Foster, 17 N. M. 654.</p> <p>Evidence warranted finding plaintiff was not holder in due course. Beply admits it.</p> <p>Secs. 55, 56, Neg. Inst. Act, 1907; Link v. Jackson, 139 S'. W. 588; Daniels Neg. Inst. (6th ed.), sec. 776;' Ward v. City Trust Co., 192 N. Y. 61; MeKnight v. Parsons, 136 la. 390'; In re Hopper Morgan Co., 156 Fed. 525.</p> <p>Effect of failure to produce important witness.</p> <p>Wigmore on Ev., see. 285; 16 Cyc. 1062; C. N. Bank v. Diefendorf, 123 N. Y. 191; Kavanagh v. Wilson, 70 N. Y. 177; Honnegger v. Wettstein, 94 N. Y. 252; 40 Cyc. 2593; Id. 2653.</p> <p>The note is not a negotiable instrument.</p> <p>Citizens Bank v. Piollett, 4 L. R. A. 190; Woodbury v. Roberts, 44 Am. R. 685; Smith v. Van Blarcom, 45 Mich. 471; Gliddon v. Henry, 54 Am. R. 316; City National Bank v. Gunter Bros., 72 Pac'. 842; Union Bank v. Bol- and, 93'Pae. 508; Coffin v. Spencer, 39 Fed. 262.</p> <p>As to construction of instrument, see: .</p> <p>Chitty- on Bills of Exchange, 15; Hensley v. Tuttle, 46 N. E. 594; Page on Contracts, sec. 12; Gillett v. Bank of America, 160 N. Y. 549; 9 Cyc. 590; Page on Contracts,' 1154, 1155; sec. 1, sub-sec. 3, Neg. Inst. Act.</p>

F. Raynolds, Judge. Action by the Consolidated Liquor Company against Scotello & Nizzi and others, wherein Guiseppe Badaracco intervened. From judgment for defendants, plaintiff appeals. Court should have granted motion to strike intervening petition. Secs. 2947 to 2949, C. L. 1897; Flournoy v. Bullock, 11 N. M. 87, 103; Field v. McMillan, 12 N. M. 40; Pa. Steel Co. v. New Jersey Co., 4 Houst.

Bemoved from State Corporation Commission. Proceeding before the State Corporation Commission by the Santa Eé Gold & Copper Mining Company against the Atchison, Topeka & Santa Eé Eailway Company. State Corporation Commission has power to grant reparation. Secs. 7 and 8, aft. 11, State Const.; 6 Cyc. 498; Poor Grain Co. v. C., B. & Q. R. Co., 12 I. C. C. R. 418; Chicago, etc., R. Co. v. Railroad Commissioners, 78 N E. 338; Washer Grain Co. v. M. P. Ry.

F. Raynolds, Judge. Action by Apolinar Solorzano against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Motion for a new trial was not filed in time. See. 2900, C. L. 1897; Schofield v. Slaughter, 9 N. M. 424; 28 Cye. 332; Cressey v. Parks, 75 Me. 387, 46 Am. Rep. 406; Corey v. Hiliker, 15 Mich. 314; Taylor v. Corbiere, 8 How. Pr. (N. Y.) 385; Whipple v. Williams, 4 How. Pr.

Proceeding by the State to remove from office A. L. Await, County Clerk of Curry County. From a judgment of removal, defendant appeals. STATEMENT OP PACTS. The appellant was elected to the office of county clerk for the county of Curry, and qualified as such official on the 18th day of January, 1912.

Action between the Raton Waterworks Company and the City of Raton. From the judgment, the Company brings error, and the City moves to strike the judgment and affirm the assignments of error. ON MOTION TO DISMISS. The matters included within the assignments of error made by appellant were not saved by exception in trial court, hence appeal should be dismissed. Wallis v. Mhlligan, 148 Pac. 500. Assignments of error partake of nature of pleading. Farmers’ Dev.

<p>Appeal from District Court, Bernalillo County; M. O. Mechem, Judge.</p> <p>Action by Thomas N. Wilkerson against Joe Badaraceo. From a judgment for plaintiff, defendant appeals.</p>

F. Raynolds, Judge. Action by M. T. Moriarity against Julius Meyer and another. From a judgment for defendants, plaintiff appeals. The transaction between the parties created relation of-landlord and tenant. Promoter’s contract was adopted by corporation. Cook on Corps., sec. 707; Wall v. Niagara Co., 59 Pac. 399; Whitney v. Wynian, 101 U. S'. 392; 2 Cook on Corps., p. 715.

D.,. Judge- Action -by the New Mexico-Colorado- Coal' & Mining Company against J. E. Baker and another, partners as the Eock Milling & Elevator Company. Judgment for defendant, and plaintiff brings error. Plaintiffs failed to prove alleged agency. Mechera on Agency, secs. 100, 276; 31 Cye. 1322, 1333. Shipment of coal was in no way an approval or ratification of alleged contract. 31 Cyc. 1253. Eefusal to order further cars authorized defendant to abandon or rescind contract.

Action by Hilda Enderstein against the Atchison, Topeka and Santa Fé Eailway Company. From a judgment for defendant, plaintiff appeals. Agent could not delegate power to sub-agent to bind principal by contracting with company to limit its liability. 1 A. & E- Ene., L. 972; 31 Cyc. 1425; 2 C. J. 685, 663-664; St. L., etc., E. Co. v. Blocker, 138 S. W. 156; Ohio, etc., E. Co. v. Hamlin, 42 111. App. 441; Buckland v. Adams Exp- Co., 97 Mass. 124, 93 Am.

Boscoe T. Graves was convicted of larceny, and appeals. Sec. 17, c. 36, L. 1907, repeals sec- 79 C. L. 1897, and the judgment of the court is without authority of law in that-’the punishment exceeds what the last mentioned law prescribes. Wilson v. Ohio, etc.', 64 111. 542, s. e. 16 Am. Eep. 565; State v. Studt, 1 Pac. (Kan.) 635; State v. Carbon, 30 Pac. (Wash-) 728; IJ.

T. Mte-Clure, Judge. Action by Hiram M. Dow against W. J. Irwin and another. From a judgment for plaintiff, defendant Irwin appeals. Neither equitable garnishment nor suit by way of a creditor’s bill is proper to reach funds in hands of municipal corporation. Art. 8, sec. 126, Ann. Const. N. M.; sec. 26, c. 63, L. 1909; City of Newark v. Eunk, R. I. Rev. Stats. 125, sec. 1; Wilson v. Lewis, 10 R. I. 285; sec. 657, c. 1, C. L. Í897; Yan Cott v. Pratt et ah, 39 Pac. 827; 4 Ene.

<p>Appeal from District Court, Chaves County;-John T. McClure, Judge.</p> <p>Action by A. A. Strickland against J. W. Johnson and another. From a judgment for plaintiff, defendants ap-; peal.</p> <p>■ Oral or extrinsic evidence is not admissible to contra-diet, vary or alter-the terms of a written msxruiueAt. '</p> <p>Pino v. Beckwith, 1 N. Mi. 19; Price v. Wood, 9 N. M. 397, 54 Pac. 231. For exhaustive citation of cases, see note to Ferguson v. Rafferty, 6 L. R. A. 33; Elliott on Contracts, vol. 2, par. 1631; West v. Kelly, 19 Ala. 353, 54 Am. Dec. 192; Fawkner v. Lew Smith Wall Paper Co., 88 Iowa, 169, 55 N. W. 200, 45 Am. St. Rep. 230; Blair v. Buttolph, 72 Iowa, 31, 33 N. W. 349; Thomas, v. Scutt, 127 N. Y. 133, 27 N. E. 961; Peabody v. Bement, 79 Mich. 47, 44 N. W. 416; Wheaton, etc., Mill Co. v. John T. Noye & Co., 66 Minn. 156, 68 N. W. 854.</p> <p>A judgment upon a subject foreign to issues is void.</p> <p>23 Cye. 818; Badaraco v. Badaraeo, 10 N. M. 761, 65 Pae. 15S; Black on Judgments, volo. 1 (2d ed.) par. 183.</p> <p>A finding of a material fact which is contrary to the evidence or clearly against weight of evidence is erroneous and clearly reversible error.</p> <p>Rush v. Fletcher, (N. M.) 70 Pac. 559; Romero v. Coleman, (N. M.) 70 Pac. 559; Baca v. Fulton, 3 N. M. 352, 42 Pac. 89.</p>

, Appeal from District Court, Bernalillo County; H. F. Reynolds, Judge. Action by Claude Albright against J. G. Albright and others. From a judgment for defendants, plaintiff-appeals. Property having been conveyed to wife of appellee, burden was on- appellee to establish that it was community. property. _ - - See.' 2764, Code 1915. Statute required testimony of appellee to be .'corroborated.

F. Raynolds, Judge. Action by the Board of Education of the City of Albuquerque against School District No. 5 of the County of Bernalillo. From judgment for plaintiff, defendant appeals. On- approval act of Congress, equitable title to the land vested in District No. 5. 1 Perry on Trusts & Trustees, 581; Cushing v. Blake, 30 N. J. E. 689. State only prescribes 'manner in w?±ieh title to property vested in school district may be transferred. Sec. 1592, C. L. 1897.

C. Abbott, Judge. Mandamus by the S'tate, on the relation of Elias Garcia, against the Board of County Commissioners of Rio Arriba County, N. M. From judgment for defendant, plaintiff appeals. Return to alternative writ must be limited to denial of facts alleged therein. Sec. 3420, Code 1915; Conklin v. Cunningham, 7 N. M. 445. Fact that employment of deputies by appellant had not been authorized by county commissioners is immaterial. See. 2, c. 12, L. 1915.

L. Medler, Judge. 'Action by H. D. Terrell against O. L. Owen. Judgment for plaintiff, and defendant brings error, and plaintiff moves to dismiss. STATEMENT OF FACTS. The defendant in error brought this action in the district court of Grant county under the provisions of section 26, chapter 63, of the Laws of 1909, as amended by chapter 26 of the Laws of 1915.

F. Raynolds, Judge. Action by the State National Bank of Albuquerque-against the Bank of Magdalena. From judgment for defendant, plaintiff appeals. A bank which, without fault or negligence, pays forged cheek, in mistaken belief that it is genuine, may recover payment from party ■ receiving it, as money paid under mistake of fact, or party who took check from forger and afterwards received the money is chargeable with negligence, and payment may be recovered. American Exp.

C. Mleihem, Judge. Jose Antonio Pino- was convicted of larceny, and appeals. Court erred in refusing to strike out evidence cpncerning loss of two head of cattle because it was hearsay. 1 Wharton’s Crim. Bv. 449, 451, 453; Crump v. Starke, 23 Ark. 131. Prejudicial collateral facts cannot be admitted in evidence. 1 Whart. Crim. Ev. p. 56. Evidence of other crimes is inadmissible. Hall v. People, 6 Parker’s Crim. E. 671; People v. Switzon, 23 Mich. 301.

<p>Appeal from District Court, Chaves County; John .T. McClure, Judge.</p> <p>Action by the Riverside Irrigation Company, a corporation, against John O. Cawdell and others. From a judgment for defendants, plaintiffs appeal.</p>

. ■ Appeal from District Court, Cbaves County; John T. McClure, Judge. ' Action by George P. Cleveland, as next friend of Helen Monroe Doss, Henry W. Doss, Clevie Doss, and Kathleen Doss, minors, and others, against U. S. Bateman. From a judgment for plaintiffs, defendant appeals. This is not a proper case for reformation. 2 Warville on Vendors, § 783, page 925; see note 28 cited by the last authority; 42 Cent.

<p>Aupeal from District Court, Chaves County; John T. McClure, Judge.</p> <p>Action by the City of Roswell against P. C. Jacoby and others. From judgment for plaintiff, defendants appeal.</p> <p>Bond had reference to penalty; not liquidated damages. Kelley v. Seay, (Oída.) 41 Pac. 615; Mercer County v. S'tupp Bros. Bridge & Iron Co., 115 111. App. 298; State v. McConnell, (N. H.) 46 Atl. 458; Van Burén v. Digges, 52 D. S. (11 How.) 461, 477, 13 L. Ed. 771; Commonwealth v. French, 114 S. W. 255; Butler v. Butler, 40 S. E. 138, 142, 62 S. C. 165; Harbor Com’rs of Port Eureka v. Bedwood Co., 26 Pac. 375, 88 Cal. 491, 22 Am, St. Bep. 321.</p> <p>The use of the words “forfeiture” and “penalty” estops city from claiming damages are liquidated. But even if this is doubtful, doubt must be resolved in favor of theory that bond provided for penalty rather than for liquidated damages.</p> <p>Van Burén v. Digges, 52 H. S. (11 How.) 461, 13 L. Ed. 771; Amanda Consol. Gold Min. Co. v. People’s Min. & Mill. Co., 64 Pac. 218, 28 Colo. 251; Cushing v. Drew, 97 Mass. 445; Harris v. Miller, 11 Fed. .118; Baird v. Tolliver, (Tenn.) 44 Am. Dec. 298; Foley v. McKeegan, (Iowa) 66 Am. Dee. 107; Davis v. Gillett, 52 N. H. 126; Ewing v. Litchfield, (Va.) 22 S. E. 362.</p> <p>Powers of city not enlarged because of execution and delivery of bond.</p> <p>State v. Estabrook, 29 Kan. 530; City of Minneapolis v. Olson, (Minn.) 78 N. W. 877.</p> <p>City had power to require the bond.</p> <p>In re Schrneider, 8 Pac. 289; Jones v. Paducah, 104 S'. W. 971; Campbell v. Thomasville, 64 S. E. 815; 1 Woolen &■ Thornton Int. Liq. sec. 274; 23 Cyc. 72.</p> <p>Action may be brought on such bonds before conviction of obligor.</p> <p>State v. Pierce, 26 Kan. 777; State v. Corron, supra; Paducah v. Jones, supra. See also upon the constitutional question involved: Louisville v. E. E. Co., (Ky.) 98 Am. St. Eep. 387; Printing Co. v. New Orleans, 25 South. 313.</p> <p>Sum named in bond is liquidated damages.</p> <p>1- Pom. Eq. Jur. sec. 440; 1 Sedgwick Dam. (9th ed.) see. 391; 13 Cyc. 91; Pendleton v. Electric Light Co. (N. C.) 27 S. E. 1003; Pressed Steel Car Co. v. Eastern Ey. Co., 121 Fed. 609; Dobbs v. Turner (Tex. Civ. App.) 70 S. W. 458; Eakin v. Scott, 70 Tex. 442; Hardie Co. v. Glenn Allen Oil Mill (MEss.) 36 South. 262; McCurry v. Gibson, 108 Ala. 451, 54 Am. St. Eep. 177; Sanford v. Bank, 94 Iowa, 680; Goldmán v. Goldman, 51 La. Ann. 761; Kinkle v. Wherry, 189 Pa. St. 198, 69 Am. S't. 802; Muse v. Swayne, 70 'Tenn. 251, 31 Am. Eep. 607; Pastor v. Solomon, 54 N. Y. Supp. 576; Hardee v. Howard, 33 Ga. 533, 83 Am. Dec. 176; Eobinson v. Centennary Fund, 68 N. J. L. 723; In re White, 84 L. T. 594.</p>

Injunction by the State, on relation of Placido Baca y Baca, for himself and others similarly situated, against the Board of County Commissioners of the County of Guadalupe and others, wherein Jones & Gleason, a partnership, intervene. From judgment for defendants, plaintiffs appeal, and defendants move to strike the bill of exceptions from the files.

<p>Appeal from District Court, Eoosevelt County; John T. McClure, Judge.</p> <p>Action by William D. Elutts and others against Moses B. Jones and others. 'From judgment for defendants, plaintiffs appeal.</p> <p>Eesidence is synonymous with domicile and sec. 11 of art. 9, State Const., contemplates that elector must have had his home in New Mexico 12 months, in the county ninety days and the precinct 40' days immediately prior to election.</p> <p>14 Cyc. 835, note 19, L. E. A. (N. S.) 759; 9 E. C. L. (Elections), sec. 46, p. 1030; State v, Savre, 113 Am. St. Eep. 452; Beny v. Hull, 6 N. M. 643.</p> <p>Mae Culberson was not an “elector” at the time she voted.</p> <p>Desmare v. United States, 93 U. S. 605, 23 L. Ed. 959; State v. Savre, 113 Am. St. Eep. 452; 9 E. C. D. p. 554; Mitchell v. United States, 21 Wall. 350, 22 L. Ed. 581; Andrae v. Andrae, 128 Pac. 813; Easterly, v. Goodwin, 95 Am. Dec. 237; Hewes v. Baxter, 36 L. É. A. 531; Farrow v. Farrow, 143 N. W. 856; 14 Cyc. S33; 9 E. C. L. (Elections), sec. 46, p. 1030; 14 Cyc. 841 842; Holt v. Hendee, 21" Am. Cas. 202; Dow v. Gould & Curry, S. M.-Co., 31 Cal. 629; note, 48 Am. St. Eep. 714; White v. Tennant, 13 Am. St. Eep. 896; Inhabitants of Warren v. Inhabitants of Thompson, 69 Am. Dec. 69; Viles v. City of Waltham, 34 Am. St. Eep. 311; I-Iairgton v. Hairston, 61 Am. Dec. 530; Fry’s Election Case, 1'0 Am. Eep. 698.</p> <p>For things to be considered in determining domicile, see:</p> <p>2 Kent, 535; 113 N. Y. 582; McCrary Elect, sec. 62; Berry v. Hull, 30 Pac. 946, 6 N M. 678; 14 Cyc. 841; 15 Cyc. 291; Priqe v. Price, 27 Atl. 291; 14 Cyc. 839.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Where an application is made to this court for a writ of prohibition to restrain the district court from entertaining jurisdiction under section 2214, Code 1915, in proceedings supplementary to execution to enforce the collection of a judgment rendered against a corporation, and such original judgment has been vacated and set aside by this court on appeal, and a new judgment ordered entered by the district court, the original execution issued upon the first judgment becomes functus officio; hence it is to he presumed that the district court will not proceed further, under such supplementary proceedings, in aid thereof, and the application for the writ will he denied.</p>

McClure, Judge. Action by John Ellis and another, administrators of the estate of George Ellis, deceased, against Lula Stone. From a judgment for defendant, plaintiffs appeal. Addition of descriptive words to a signature does not change prima facie individual liability thereon. 2 C. J., Agency, sec. 338, p. 683; Mechem on Agency (2d ed.) secs. 1408, 1419; 1 Am. & Eng. Eney. L. (2d ed.) 1043; Peterson v. Homan, 44 Minn. 166. 20 Am.