Volume 3 — New Mexico Reports

<p>1. Pleading—Inconsistency—Non Assumpsit—Non est Factum.</p> <p>Where a declaration on a note contains one count only, in special assumpsitr and defendant pleads non est factum and non assumpsit, and the plaintiffs subsequently amend, adding a count for goods sold and delivered and a count on account stated, and the defendant’s pleas remain unchanged, plaintiffs cannot, by withdrawing the common counts of their declaration, confine the defendant to his single plea of non est factum. The pleas of non assumpsit and non est factum are not so inconsistent that they cannot both be left .on the record.</p> <p>2. Pleading and Proof—Evidence—Competency.</p> <p>The admission in evidence of a note of a different date and amount from the note in suit, and payable on its face before the alleged cause of action arose, is error.</p>

<p>Forcible Entry and Detainer—Actual Force—Evidence.</p> <p>An unlawful entry, unaccompanied by actual force, is not a constructive forcible entry sufficient to sustain a judgment in an action of forcible entry and detainer under the New Mexico statute.1 </p>

<p>Public Lands—Mexican Grant—Homestead Entry.</p> <p>Under Act Cong. July 22, 1854, directing the surveyor general of New Mexico to ascertain and report to congress on all claims to lands under the laws, usages, and customs of Spain and Mexico, and reserving lands so claimed “from sale or •other disposal by the government” until final action by congress, a report by the surveyor general that a certain Mexican grant has not been surveyed, but is “reported” to contain a certain number of acres; that the grant is valid and the title perfect in representatives of the grantee,—has the effect to segregate the land from the public domain of the United States, and a homestead entry thereon is void ■as against the claimants under the Mexican grant.</p>

<p>1. Attachment—Non-Resident Defendant—Publication.</p> <p>The provision oí the statute regulating attachments (Prince, St. p. 138, § 11) that published notice to a non-resident defendant shall inform him that his property has been attached, and that, unless he appears, judgment will be rendered against him and the property sold to satisfy it, is not modified or repealed by the act of 1862, (Id. p. 143, § 36,) which merely changed the law as to the persons authorized to make publication; nor by the act of 1874, (Id. p. 133,) which, in addition to the previous law of attachments, provided for the citation of non-residents by publication in ordinary actions at law and suits in chancery, and a notice published in an action of assumpsit, which omits these requisites, will not give jurisdiction in attachment.</p> <p>2. Jurisdiction—Presumption in Favor op.</p> <p>The jurisdiction of a court of general jurisdiction will be presumed from the record of a judgment in evidence, but this presumption may be rebutted by the record of the entire case disclosing a want of jurisdiction.</p> <p>3. Jury—Instructions—Fraudulent Conveyance.</p> <p>The submission to a jury of the validity of a mortgage set up as against attaching creditors, without submitting the facts on which its validity must be determined, is error.</p>

<p>1. Promissory Note—“With Exchange.”</p> <p>The words “with exchange, ” inserted in a promissory note, by its terms made payable at a certain place, are mere surplusage, without significance, and do not affect the character of the instrument as a note.1 </p> <p>2. Same—Evidence—Variance—Common Counts.</p> <p>Though the note in evidence is fatally variant from the note declared on in the special count, it will be received in support of a count for an account stated.</p> <p>3. Same—Interest.</p> <p>Interest at the legal rate only can be recovered on the common counts, though, the note bear a higher rate by its terms.</p>

<p>"Forcible Entry and Detainer—Pleading—Complaint.</p> <p>In an action of forcible entry and detainer, a complaint alleging that plaintiffs • are entitled to and possessed of the “entrances and exits” of a certain tract of ■•land, and that the defendant illegally and by force entered upon the land, and ■withholds the same, makes no claim to the property, and will not sustain a judgement.</p>

<p>Parol Evidence—Depositions in Former Suit.</p> <p>Where it is sought to prove, not the contents of certain depositions, but simply the fact that they were properly taken and used in a previous suit between the same parties touching the same subject-matter, this may be done by parol evidence, and the record of the former suit need not be introduced.</p>

<p>1. Promissory Note—General Issue.</p> <p>In a suit on a promissory note, a partial failure of consideration may be proved under the general issue, and is a good defense pro tanto.</p> <p>2. Same—Pleading—Set-Off.</p> <p>Under the New Mexico practice act of 1880, (Prince, St. p. 124, § 11, Bubd. 3,) new matter constituting a cause of action in favor of defendant is available as a set-off. even in an action on a note given in final settlement of account between the parties.</p> <p>3. Same—Evidence—Condition Precedent.</p> <p>Where it is clear from the evidence that certain goods were not to be paid for until the quartermaster’s receipt or voucher had been issued, no action can be maintained for such goods without proof of its issuance.</p>

<p>1. Bill of Exchange—Parol Evidence.</p> <p>In assumpsit against defendant personally, as drawer of a bill of exchange, which is made neither in his name nor in that of the firm of which he is a member, but is signed by a third person as “agent, ” and is drawn on defendant’s firm, it is not competent to show by parol evidence that the drawer is defendant’s agent, and that defendant is the real maker of the draft.1 </p> <p>2. Same—Special Counts—Plea—Defective Verification.</p> <p>In such a case, where special counts of the declaration seek to charge the defendant as drawer, through his agent or partner, the defective verification of defendant’s plea, denying his signature under oath, as required by Prince, Gen. Laws, p. 119, § 30, will not be taken as an admission of the truth of the special counts. It is essential to establish his connection with the instrument by competent proof,</p> <p>3. Practice—Pleading and Proof.</p> <p>Where a demurrer has been sustained to one of the counts in the declaration, it is error to permit such count to be read to the jury, or to receive evidence thereupon.</p> <p>4. Assumpsit—Plea—Non Assumpsit—Non est Pactum.</p> <p>In assumpsit on a bill of exchange, the proper plea is non assumpsit, a denial under oath of the signature. Prince, Gen. Laws, p. 119, § 30. The plea under oath of non est factum, as required by section 31, Id., is only applicable to instruments under seal.</p>

<p>1. Appeal prom Probate Court—Jurisdiction.</p> <p>The probate court being a court of limited jurisdiction, jurisdiction must affirmatively appear on its record. Therefore, where, on appeal from the disallowanceof a claim against an estate, the record fails to show the appearance of the administrator, or that he was cited to appear, the probate court was without jurisdiction, and the district court could only acquire the case for the purpose of dismissing the proceeding.</p> <p>2. Same—Conditions and Requisites.</p> <p>Under Comp. Laws N. M. p. 122, § 4, (Prince, St. p. 76, § 4,) providing that “appeals from the judgment of the probate judge shall be allowed to the district, court in the same manner, and subject to the same restriction, as in case of appeals from the district to the supreme court,” and also Comp. Laws ÍT. M. p. 184, § 5, providing that “appeals from the probate courts shall be taken hereafter in-, the same manner as from justices of the peace at the term when the order or judgment appealed from shall have been rendered, and the bond shal-1 be approved by the probate judge, ” it is essential to the validity of an appeal from the-probate court to comply with the requisites of both kinds of appeals.</p>

<p>Appeal from First district.</p>

<p>Appeal from First district.</p>

<p>1. Contract under Sear—Consideration—Specific Performance'.</p> <p>A contract under seal is presumed to be for good consideration, and a bill for specific performance of it is not demurrable because it does not show what the consideration was.</p> <p>2. Specific Performance—Mutuarity of Contract.</p> <p>A bond to convey a mine, upon the payment of a certain sum of money, will be specifically enforced notwithstanding it is unilateral, and signed only by the party to be charged.1 </p> <p>Bristor, J., dissenting.</p>

<p>1. Chan&e of Venue—Prejudice—Discretion of Triad Court.</p> <p>The ruling of the trial court refusing a change of venue because of local prejudice will not be disturbed where the trial judge was himself a resident of that county, and personally cognizant of the feeling of the community, and where the jury was drawn from the body of the whole district, and not alone from the county in question.</p> <p>2. Criminal Law—Continuance—Absence of Witnesses.</p> <p>Where the defendant, indicted for larceny, was charged with the purchase of cattle, knowing them to have been stolen, the refusal of a continuance on account of the absence of witnesses who could prove an alibi, and also would testify from whom defendant had bought the cattle, will not be disturbed as an abuse of discretion, where it appears that subsequently, at the trial, defendant himself failed, to take the stand and testify as to these facts in his own behalf.</p> <p>3. Same—Evidence of Accomplice.</p> <p>Though the uncorroborated evidence of an accomplice should he received with' great caution, it is not error for the court to refuse to instruct that such evidence-is insufficient to warrant a conviction.</p> <p>4. Same—Corroboration.</p> <p>Though the testimony of an accomplice is not corroborated by evidence that defendant was present at the scene of a crime the evening before its commission, such evidence becomes material and pertinent by its contradiction of witnesses to establish an alibi showing that defendant was at that time in another towD, many miles distant.</p>

<p>1. turqualification of Juror—Voir Dire.</p> <p>Technically, upon the trial of a juror for general or absolute disqualification under the statute, and expressly for bias, the challenge should be first interposed and the evidence introduced afterwards; hut where, upon a voir dire, it appears that the juror is not the head of a family, a challenge therefor may be disposed of upon the evidence already received.</p> <p>2. Criminal Law—Instructions to Jury—Absence of Defendant.</p> <p>It is error for the court, on trial for felony, after the jury have retired, to receive them again, in the absence of the defendant and his attorney, and give them further instructions verbally as to the law of the case.</p> <p>3. Same—Reasonable Doubt.</p> <p>In a criminal case, it is error to instruct the jury that they must determine a fact “according to the evidence, and just as they would determine any fact in their own private affairs. ” The jury must be satisfied, to the exclusion of every reasonable doubt, that such fact has been established by the evidence.</p>

<p>. 1. Corforation^-Ultra Vires—Trespass Vi et Armis.</p> <p>Where defendant railroad company, by means of a strong body of armed employes, took forcible possession of the railroad and property of another company, and plaintiff, an employe of the latter company, while on a-hand-car in the discharge of his duty, was fired upon and wounded by defendant’s employes, defendant is liable for the injury, and cannot plead that the trespass was the individual act of its servants, and ultra vires.1 </p> <p>2. Instructions—Modification—Erasure.</p> <p>The statute providing that modifications of instructions asked must not be'by interlineation or erasure is merely directory, and an erasure not prejudicial to the party objecting thereto is not ground for reversal of the judgment.</p>

<p>1. Taxation—Exemption of Kailroads—Constitutional Law.</p> <p>By the railroad incorporation act of February 2, 1878, § 3, it is provided that, to aid and encourage the construction of railroads, all the property of every kind and description of every corporation formed under that act shall be exempt from taxation until the expiration of six years from the completion of its road. By act of February 12, 1878, this exemption was extended to all corporations organized under the laws of the territory for the purpose of constructing railroads. By act of February 15,1878, the words “six years from the completion of its road” are defined, and the exemption limited to a period of 12 years from the commencement of its construction. Meld, that the granting of this exemption from taxation to corporations not organized under the act of February 2,1878, is not in contravention of Act Cong. March 2, 1867, § 1. forbidding the legislative assemblies of the territories from granting private charters or special privileges.</p> <p>2. Same—Legislative Contract—Validity.</p> <p>The offer of this exemption to railroad companies not organized under the act of February 2,1878, was not a mere gratuity and without consideration, but upon its acceptance, by complying with its conditions by constructing and operating a railroad, it became a binding contract, from which the territory cannot recede</p> <p>3. Same—Railroad Company—Capital Stock.</p> <p>The capital stock of a railroad company is included in the exemption of “all the property, of every kind and description, ” granted by these acts, and when the conditions are complied with it cannot be taxed during the period specified.</p>

<p>1. Federal Courts—Jurisdiction—Murder—Indian Country.</p> <p>Under Bev. St. U. S. § 2145, extending tlie criminal jurisdiction of tbe United '■States to offenses committed in “Indian country, ” the district court in a territory will take jurisdiction of a homicide on an Indian reservation, within the territory, ■on the United States side of the court, as a federal court, to the exclusion of territorial jurisdiction, and the prosecution is properly conducted in the name of the United States.</p> <p>2. Same—Exceptions—Treaty.</p> <p>Where such homicide is committed by an uncivilized Mescalero Apache Indian ■on a white man, the case does not fall within any of the exceptions to the jurisdiction of the United States contained in Bev. St. U. S. § 2146, nor is there any provision in the treaty with the Apaches, of July 1,1852, (10 U. S. St. 979,) putting such an offense within the tribal jurisdiction of the Indians.</p>

<p>1. Attachment—J tjd gment—Amendment.</p> <p>An order in an attachment suit that the property shall he “forthwith delivered to the sheriff of S. county” sufficiently designates both the time and place of delivery, and a defendant, in an action on the forthcoming bond, is not prejudiced by an irregular amendment of the record making the order more specific in that respect.</p> <p>2. Same—Defective Whit—Waiver—Appearance.</p> <p>Appearance and judgment waive objection to the writ as being issued by the clerk.of the probate court, rather than by the clerk of the district court, and it is’ too late to raise the question in an action on the forthcoming bond.</p> <p>3. Evidence—Lost Instrcment—Forthcoming Bond.</p> <p>Where the forthcoming bond sued on was properly filed in the clerk’s office of the lower court, and a copy of it was preserved among the papers of the plaintiff, but at the trial the original could not be found, after diligent search, the copy was properly admitted in evidence.</p> <p>4. Parties—Contract for Benefit of Another.</p> <p>Under the practice act of 1880, § 2, providing that a party in whose name a contract is made for the benefit of another may sue on it in his own name, the sheriff is the proper party plaintiff, in an action on a forthcoming bond.</p> <p>5. Same—Joint and Several Contracts.</p> <p>Under Act 1878, c. 4, § 56, (Prince, St. p. 122.)providing that “all contracts which by common law are joint only shall be held and construed to be joint and several, ” an action majr be maintained against the sureties on a forthcoming bond, without joining the principal, or showing that judgment has been obtained and the remedy exhausted against him.</p>

<p>Witness—Competency—Uneducated Deae Mute.</p> <p>A deaf and dumb child, who has never been educated in the deaf and dumb language, who cannot be made to understand anything of the nature of an oath, and who can do nothing more than give an account by signs only of what he saw, without affording any means of examination or cross-examination, is not a competent witness, especially in a capital case. Bristol, J., dissenting.</p>

<p>Appeal-Bond—Remittitur—Liability op Sureties.</p> <p>Where the substantial ground of the appeal is that there is no evidence to sustain a judgment in any amount whatever, and the decision of this court is that the appellees file a remittitur of the excess of interest awarded them in the court below, and have the judgment affirmed as to the residue, or else submit to a reversal ■and a trial de now, this does not amount to such a reversal of the judgment as will release the appellant’s sureties on the appeal bond.1 </p>

<p>Taxation—Statutory Construction—Repeal.</p> <p>The revenue act of 1872 (Prince, St. p. 513, §§ 6. 7) provides for a poll-tax to be “applied to school purposes exclusively.” The act of 1874 (Id. p. 515, § 5) provides for its collection by the constable of each precinct, who shall turn it over ¡to the county treasurer. The revenue act of 1882, (Prince, St. 1882, p. 712, § 118,) ■which embraces all the subjects of taxation, makes the sheriff ex officio collector ■of all taxes, and provides for the distribution of other taxes, but is silent as to the disposition of the poll-tax. The repealing clause repeals all conflicting laws, -and further provides that “all laws or parts of laws heretofore in force, regarding the raising of revenue from taxation or from licenses, are by this act hereby ■repealed. ” Held, that it was not the legislative intent in the act of 1882 to change the disposition of the poll-tax, and that the provision of the act of 1872 devoting it to school purposes is still in force, and that the money should properly be turned over to the county treasurer for the school fund.</p>

<p>Fraudulent Conveyances—Creditors’ Bill—Amendment.</p> <p>Where a husband, being insolvent, conveys real estate to his wife, who continues to hold the same after his death, a single creditor of the husband, who hssobtained a judgment in the probate court against the estate, cannot by a bill in equity have the conveyance declared a trust for his benefit, and have a receiver-turn the widow out during the pendency of the suit. It is, however, reversible error for the court, in sustaining a demurrer to such a bill, to dismiss the suit absolutely. An equity appearing from the allegations of the bill to have the conveyances set aside, on behalf of all the creditors, and the property applied to the payment of the debts, the complainant should have had leave to amend.</p>

<p>Attachment—Demands not Due—Assumpsit.</p> <p>Attachment proceedings auxiliary to an action of assumpsit, but each characterized by separate pleadings and a distinct practice, may he commenced together for the same demand. But, where it appears that the demand is not yet due, it is error to render judgment for plaintiff thereon in the action of assumpsit, although the attachment may be sustained upon the trial of that issue, the effect of which is only to create an attachment lien in advance of an action on the claim itself, when it becomes due.1 </p>

<p>1. Abatement of Suit—Another Suit Pending.</p> <p>Where it appears, in a hill to establish the right of infant claimants to an undivided interest in land to which all the parties interested are made parties, that another proceeding in equity, brought by some of the defendants only to terminate •and extinguish the claim of complainants is still pending, a demurrer on the ground of another suit pending will be overruled, for it is apparent that the rights -of complainants cannot be fully adjudicated in that cause for the lack of parties.</p> <p>3. Action by Infant—Appointment of “Next Friend”—Presumption.</p> <p>Where a hill is brought on behalf of infant complainants by their “next friend, ” it will be presumed that the “next friend” was duly appointed by the court, and leave given to file the bill. A demurrer for failure to show these facts on the face ■of the bill will be overruled.</p> <p>5. Equity—Setting aside Fraudulent Decree.</p> <p>A hill to annul a consent decree, on the ground that it was fraudulently obtained, where the effect will be to re-establish a prior decree in the same cause, is not demurrable because it fails to show that the decree which is to be so re-established was a proper one. That issue is not before the court.</p> <p>4. Same.</p> <p>A hill to impeach a consent decree, on the ground that it-was fraudulently obtained, is not a hill of review where the parties to it necessarily differ from the parties to the proceeding in which the decree sought to be annulled was rendered.</p> <p>■6. Same—Consent Decree.</p> <p>A hill to annul a decree is not demurrable because it appears that the decree was entered by consent, where it is charged that the complainants were infants, and the consent, if any, was obtained by fraud and imposition.1 </p> <p>•-6. Same—Want of Equity—Infancy—Fraud.</p> <p>A bill to set aside a decree, entered by consent against minor defendants, divesting them of an undivided interest in a large Mexican grant, and authorizing its conveyance by their guardian ad litem, in pursuance of a compromise, for a sum less than its real value, which charges that there was no consent in fact; that if it was given it was obtained by fraud, imposition, and false representations practiced upon their guardian ad litem, a Mexican woman, ignorant of the English language, unfamiliar with business or the proceedings of courts, unacquainted with the rights of complainants, with her duties as guardian, and with the land itself, its extent and value, and ignorant of the fact that congress had confirmed the grant, and that the court had, by decree, established the rights of ■complainants’ ancestor, and of the share or right claimed by the latter in his life-time; and further setting out in detail the fraudulent devices by which she was convinced that complainants would be excluded from, all enjoyment of the grant by the other owners thereof, and was persuaded to consent to the decree and execute the conveyance in pursuance of it,—is not demurrable for want of ■equity.</p> <p>7. Same—Control op Infants’ Real Estate.</p> <p>Complainants’ ancestor, in a proceeding to establish an equitable right to an undivided interest in land, recovered judgment, and a partition was ordered, but before the decree could be executed he died. Held, that his equitable right had become_ converted into a legal title, and so descending to complainants, his infant heirs, vested in them as a legal estate in land, which a court of equity is without jurisdiction to divest, in the absence of statutory authority, even for the purpose of nurture and maintenance, much less in pursuance of a compromise by their guardian ad litem, and this notwithstanding an equitable proceeding was still necessary to determine and separate their interest in the property.</p> <p>Ü. Yenue—Suit Involving Land—Division of County.</p> <p>Where land was originally in one county, but by a new division it became located in another county, a suit, of which an in'erest in the land is the subject-matter, is properly brought in the county in which the land lies at the time the .suit is brought, under chapter 2, Act lo76, § 1, (Prince's Laws, p. 130.)</p>

This case was tried at tbe February, 1883, term of the First judicial. district court within and for the county of Santa Fe, before the Hon. S. B. Axtell, chief justice.

<p>Mining Claim—Notice op Location.</p> <p>A notice of the location of a mining claim, under the laws of the United States and the territory of New Mexico, which does not describe the limits of the claim by reference to natural objects or permanent monuments, is not sufficient, although it describes the claim as bounded by certain other claims.1 </p> <p>Axtell, C. J., dissents.</p>

<p>Appeal from a judgment entered in favor of plaintiff, Corkins, in an action for forcible entry and unlawful detainer.</p>

<p>1. Chattel Mortgage—Power or Disposition in Mortgagor—Fraud.</p> <p>A chattel mortgage executed by a merchant to his brother-in-law upon his stock in trade, according to the terms of which instrument the mortgagor is to retain possession of the goods, and go on with his business just as before it was given, is fraudulent, and as to creditors void.</p> <p>2. Same—Palpable Effect to Delay Creditors—Purpose Imputed by Law.</p> <p>A chattel mortgage which allows the mortgagor power to dispose of the goods hypothecated by it, is no security to the mortgagee; and if on its face it shows, as a legal effect, the delaying of creditors, the law imputes to it a fraudulent purpose.1 </p>

<p>Ejectment — Retrospective Law—Tested Rights—Improvements on Property.</p> <p>Where an action of ejectment is brought to recover the possession of land, and the defendant, under section 3 of the act of 1878, (Prince’s St. 486,) claims-the value of improvements which he had erected thereon prior to the passage of the act, the owner, by vested right, is entitled to recover lire improvements-as well as the land, and the statute, so far as it attempts to divest that right, is-void.1 </p>

<p>Error to First judicial district court, Eio Arriba county.</p>

<p>Assumpsit. Appeal from the Third judicial district court, Grant county.</p>

<p>Appeal from the Second judicial district court, Bernalillo county..</p>

<p>1. Robbery of United States Mail—Section 5472, Rev. St. U. S.</p> <p>When in the trial of an indictment the evidence proves that the accused took by force, from the possession of the postmaster, a package directed to another person, which was a part of the United States mail, although such package was not in the post-office, and had been removed to some other place, and although the postmaster may have intended to appropriate the same for a private debt due to himself, the accused is guilty of robbing the mail, within the meaning of section 5472 of the Revised Statutes of the United States.</p> <p>2. Same—Punishment—Province-oe Court—United States Law—Territorial Statute.</p> <p>Where a person is found guilty of robbing the mail, it is the province of the court, under the law of the United States, to assess his punishment. The statute of the territorial legislature has no application to this class of cases.</p>

<p>Error to First judicial district .court, Taos county.</p>

<p>Appeal from district court, Bernalillo county.</p>

<p>1. Criminal Law—Murder—Evidence—Question for the Court.</p> <p>It is a question of law for the court to say, upon the evidence, whether the ' time which elapsed between the provocation in any given case and the stroke was sufficient for the heat of passion to subside.</p> <p>2. Same—Degree of Crime—Harmless Error.</p> <p>Where the evidence justifies a verdict of murder in the first degree, an instruction as to murder in the second degree, if erroneous at all, is harmless error.</p>

<p>a.' Pleading—Ejectment—Declaration—Averment—Eight oe Possession.</p> <p>The very foundation of the right to maintain an action in ejectment, both at common law and under the statute of the territory, is the plaintiff’s right to the possession of the premises. Unless it contains an averment to that effect, a declaration in ejectment cannot be sustained.</p> <p>3. Same—Averment—“Unjustly Withholds.”</p> <p>The averment that the defendant “unjustly withholds” the premises is not equivalent to the allegation that he “unlawfully withholds ” them, as required by the statute.</p>

<p>Appeal from Second district, Bernalillo county.</p>

<p>1. Practice—Continuance—Aeeidavit.</p> <p>In order to force the continuance of a cause, the affidavit upon which the application's founded must state all the facts required in the statute to be stated.1 </p> <p>2. Same—Instruction to Jury—Conelictino Witnesses.</p> <p>In case of conflicting testimony it is eminently proper for the court to tell the jury to decide which witness has told the truth.</p> <p>3. Same—Lack oe Fact in Record—Presumption. ’</p> <p>When there is nothing in the record and no evidence aliunde to show that the court instructed the jury orally instead of in writing, as required by the statute, the presumption is in favor of the court’s observance of the law.</p>

<p>Appeal from Second judicial district court, Bernalillo county.</p>

<p>Appeal from Third judicial district court, Grant county.</p>

<p>Equity—Fraudulent Conveyances—Injunction.</p> <p>Equity will enjoin any transfer of a debtor’s property, made with intent to defraud and delay'his judgment creditors, or to give a portion of such creditors a preference over others. But such power in the court can only be invoked in ■behalf of creditors who have established their claims in a court of law, and will -not be exercised on behalf of mere contract creditors at large, whose claims are ■not reduced to judgment.</p>

<p>Attachment—Affidavit—Mistrial.</p> <p>Upon the trial of issues as to the grounds of attachment, the affidavit itself was mislaid, the counsel had never seen it, and the case was tried, both by the court and counsel, upon the theory that but one ground of attachment was laid in the affidavit, viz., that defendant fraudulentlv disposed of hie property, when in fact it contained the further ground that the debt was-fraudulently contracted. Held a mistrial, and that a new trial should be ordered.</p>

<p>Error to First district, San Miguel county.</p>

<p>Error to Second judicial district, Sorocco county.</p>

<p>1. Adverse Possession—Evidence—Character of Possession.</p> <p>In an action of ejectment, where the defense is the statute 'of limitations,, evidence that the defendant went upon the land for the purpose of raising-one or two crops, together with vague testimony that he claimed the land, there being no evidence of residence, improvement, inclosure, customary-cultivation, or other use showing continued actual appropriation, is insufficient to establish the character of his possession as adverse, especially where-his own testimony indicates that in going upon the land he merely mistook, his boundary.</p> <p>2. ¡Same—Religious Corporation—Failure to File Corporation Papers— Effect as to Power to Sue.</p> <p>The fact that a religious corporation had not, previously to the commencement of a suit, caused the papers and certificates required by chapter 3 of the Laws of 1880 to be filed in the office of the secretary of the territory, does not debar it from access to the courts in protecting its previously vested estate in¡ the territory.</p> <p>3. Same—Secondary Evidence—Foundation.</p> <p>In a case of disputed title, one of the litigants being a religious corporation,, proof should he obtained directly from the corporate office, in which the corporate papers are usually kept, before admitting secondary evidence of documents presumed by law to he in the corporate custody.</p> <p>4. Same—Paper Title Not Necessary in Defense against Trespasser.</p> <p>A regularly derived paper title is not necessary for recovery against a defendant who, without title, has intruded upon a prior possession.</p> <p>5. Same—Corporation Holding Land by Agent — Presumption from Facts.</p> <p>The fact that a Presbyterian clergyman, recognized as such, claimed to hold certain specific property in Santa Fe for a religious corporation in New York;, that said corporation could not, on account of its distance, occupy its lands except by means of servants, agents, tenants, or other representatives; the statements of such clergyman, and his position in SantaFe,—raise a strong presumption that he was acting for the plaintiff corporation, and that his possession was the possession of the corporation.</p>

<p>Mines and Minino—Advancements eob Development—Lien.</p> <p>Parties accepting a fourth interest in a mine in consideration of “one dollar, ” §md the understanding that they will furnish the money and do the-work necessary to develop the property, and who, in doing so, have the-work entirely in their own handstand can stop whenever they see fit, cannot, when the development has advanced to a certain stage, and the indications-are good, shut down the mine, refuse to work it themselves, or allow their-co-owners to work it, demand instant payment of all the money expended,, and establish a lien on the whole property therefor.</p>

<p>Appeal from Second judicial district court, county of Bernalillo.</p>

<p>Error to First judicial district, Mora county.</p>

<p>Appeal from First judicial district court, San Miguel county.</p>

<p>Appeal from First judicial district court, San Miguel county.</p>

<p>Error to First judicial district, San Miguel county.</p>

<p>1. Mechanic’s Lten — Charge in Complaint — Joint Liability — Judgment against Individuals.</p> <p>When, in an action at law, a joint liability is charged, judgment cannot be entered separately against one of the parties.</p> <p>2. Same—Assumpsit.</p> <p>In an action in assumpsit a judgment to enforce a mechanic’s lien cannot be entered. Finane ¶. Las Vegas Hotel <& Imp. Go., ante, 256.1 </p>

<p>Error to the First judicial district, Santa Ee county.</p>

<p>1. Equity Pleading—Amendments.</p> <p>Upon the amendment of a bill, the defendant is entitled to file an amended! answer making, if he wishes, an entirely new defense; and this right is not affected by an order of the supreme court reversing a former decree in the case, with leave to plaintiffs to amend their bill, ana allowing defendants to-answer any new matter introduced therein.</p> <p>2. Same—Infant Defendant.</p> <p>An infant defendant, having become of age, is entitled to his day in court, and may file his separate answer, making, if he choose, an entirely new defense.</p> <p>3. Equity Practice—Bill to Enforce Decree.</p> <p>On bill to enforce a decree, defendants must be permitted to attack it, and the court will look into the case for the purpose of seeing whether it was-equitable and just.</p>

<p>1. Appeal—Question not Raised Below.</p> <p>A question not raised in the trial below cannot be considered on appeal by the higher court. Prince’s Laws, § 5, pp. 68, 69.</p> <p>2. Conditional Sale—Notes por Payment—Seizure op Goods to Satisfy Notes.</p> <p>A party, having sold cattle to another and taken the purchaser’s notes for them, upon the condition that the title is to remain in him until the notes are paid, cannot, while holding tEe notes, seize or sell the cattle in order to make the debt good.</p> <p>3. Same—Evidence, Absolute or Conditional—Question for Jury.</p> <p>Whether a transaction in which the seller delivered a bill of sale of the good» to the purchaser and accepted the latter’s notes for payment was a conditional or an absolute sale, is a question that the jury may properly decide from the evidence.</p> <p>4. Same—Giving and Acoeptance of a Note—Evidence.</p> <p>The giving and acceptance of a note is prima facie evidence of a settlement between the parties of the difference between them growing out of the transactions with which it is connected.</p>

<p>Error to the district court for the county of Santa Fe.</p>

<p>1. Contract—Subcontractor, how Affected by Original Contract.</p> <p>A railroad contractor Laving made a general contract with another person) to perform a portion of the work, undertaken according to the original contract with the railroad company, the two contracts are so connected, and the one so dependent on the other, that they form one contract; and the subcontractor is entitled to the same benefits, as well as bound by the same conditions, as affected the first contractor under the original contract.</p> <p>2. Same—Evidence—Cost of Work—Reasonable Cost.</p> <p>In an action by a contractor against a subcontractor to recover the amount lost by the plaintiff through the defendant’s failure to perform the work agreed to be performed, the plaintiff must prove, not only that the work did cost the-amount claimed, but also that it was the reasonable and necessary cost.</p> <p>3. Same—Books of Account—Who can Refresh Memory.</p> <p>Books or writings in the nature of memoranda can be referred to in order to-refresh the memory only by the person in whose handwriting they are.</p> <p>4. Evidence—Admissibility—Preliminary Proof Required.</p> <p>Ledgers and books of account are not admissible in evidence unless it is first shown that the person in whose handwriting they are cannot be produced in> court-.</p>

<p>Error-to the First judicial district court, Santa Fe county.</p>

<p>Appeal from the Second judicial district court, Bernalillo county -</p>

<p>Certiorari. Appeal from Second district court, Bernalillo county.</p>

<p>Supreme Court of New Mexico—Practice—Rules of Court—Record.</p> <p>Under rule 24 of the rules of court of the supreme court of New Mexico, the appellant must, within the proper time after judgment rendered, present, along with his bill of exceptions, a proposed record, containing the pleadings and proceedings in the case, to the trial judge, and the opposing party or his attorney; otherwise the case cannot be entertained above.</p>

<p>Attorney General de Facto—Presumptions.</p> <p>In an informal proceeding to determine the right to the office of attorney general between two parties, one of whom claims under an appointment by the present governor, and the other under an appointment previously made for a term not yet expired, according to a commission exhibited in court, the court presumes, from the presence of the latter party, that he is not dead, and from his acts and declarations that he has not resigned, and decides, accordingly, that he is de faeto attorney general; the question as to who is so de jure being reserved for determination until such time as a proper ease shall have been formally submitted and heard.</p>

<p>Error to district court, Santa Fe county.</p>

<p>Error to district court, San Miguel county.</p>

<p>1. Appeal—Failure to Prosecute—Judgment.</p> <p>Under Comp. Laws N. M. § 2189, upon failure to assign errors on or before the first day of tbe term to which the cause is returnable, judgment against appellant, or plaintiff in error, may be affirmed, in the absence of good cause shown.</p> <p>2. Same—Damages.</p> <p>Under section 2191, Id., on such affirmation of judgment, damages not exceeding 10 per cent, of the judgment may be awarded against appellant, or plaintiff in error, for vexatiously delaying the final process of tbe court.</p> <p>5. Same—Error—Judgment against Sureties.</p> <p>Section 2206, Id., providing that, on appeal in civil suits, judgment against appellant shall be against him and his sureties on the appeal-bond, applies equally to judgments on writs of error, against plaintiff in error.</p>

<p>3. Insurance—Accident Policy—Violent External Causes.</p> <p>Where plaintiff in an action on an accident policy testified that he dived from a plank into water six or seven feet deep, and that the “tympanum of the ear was ruptured by external violence in diving,” the jury were justified in finding that the injury resulted from “violent external causes, ” and a verdict for plaintiff will not be disturbed.1 </p> <p>3. Same—Instruction—Harmless Error.</p> <p>In such a cáse, where the court has fairly submitted to the jury the issue as to whether the injury was caused by “external, violent, and accidental means, ” an instruction that the contract, being made by the defendant itself, must be more strictly construed against it, even if error, will not justify a reversal.</p>

<p>Error to district court, San Miguel county.</p>

<p>Error to district court, Colfax county.</p>

<p>1. Repeal—Usury—Effect on Contracts.</p> <p>The act of 1866, (Gen. Laws, 421,) declaring usurious contracts illegal and criminal, was repealed by tbe act of 1872, (Gen. Laws, 414.) making all contracts for interest legal and binding. This in turn was repealed by the act of March 2, 1882, (Acts 1882, p. 43,) establishing 12 per cent, as the legal rate of interest, and making usurious contracts void as to the excess beyond that rate. lie Id, that the repeal of the act of 1872 did not operate a revival of the act of 1866, and that usurious contracts are not invalid, except as to the excess beyond the legal rate.</p> <p>2. Mortgage—Defective Power of Sale—Foreclosure.</p> <p>A mortgage which by its terms is expressly intended to secure payment of a note, but is defective, in the power of sale, in providing only for payment of costs of the trust and interest, without making any provision for the principal, will be foreclosed by a court of equity without waiting for the instrument to be reformed.</p>

<p>1. Sale of Goods—Statute of Frauds—Manufactured for Special Purpose.</p> <p>Plaintiff agreed to cut, saw, and deliver to defendant, a railroad contractor, along the line of the railroad, certain lumber of special sizes and kinds, used in the construction of narrow gauge railroads, which are not usually kept and sold by lumber merchants. The lumber was to be made from timber on government land, and defendant was to secure permission to use it. Held, that this was a contract for work and labor, and not a sale of goods, within the-statute of frauds.</p> <p>2. Breach of Contract—Damages—Expenses Incurred.</p> <p>Expenses incurred by plaintiff in moving his machinery and force of mem to the vicinity of the timber, and while awaiting orders from the defendant, are properly an element of damages for the breach of such a contract.</p> <p>3. Same—Novation.</p> <p>Upon breach of such a contract by defendant, plaintiff entered into a less advantageous contract directly with the railroad company to furnish a mucks smaller quantity of lumber, requiring less machinery and fewer men than had. been prepared and collected for operations under the contract with defendant. Held,, such new arrangement cannot be considered a novation of the contract on which action was biought.</p>

<p>1. Pleading and Proof—Evidence—Instructions.</p> <p>In an action against a railroad company for personal injuries, where the allegation of negligence in the declaration is that the defendant, “by its servants, so carelessly and improperly drove and managed its locomotive engine and train that by and through the negligence and improper conduct of the defendant, by its servants, in that behalf, said locomotive engine and train’7 ran over and injured plaintiff’s minor son, evidence that the injury occurred in consequence of the defective construction of defendant’s station platform, which was built so near the track that the coaches projected over it a foot, is inadmissible, and an instruction submitting that issue to the jury is error.1 </p> <p>2. Same—Objection—'Wsjver.</p> <p>Where evidence is clearly outside the issue as made by the declaration, defendant’s right to object to it is not waived by his failure to do so when it is offered, but if the objectionable testimony is of such a character that.it can be easily designated and separated from the other evidence, a motion after all the testimony is in, and before the argument, to exclude it from the comsideration of the jury, should be sustained.</p>

<p>Usury—Effect on Contract.</p> <p>Following Milligan v. Oromwell, ante, 327, 9 Pac. Rep. 359.</p>

<p>1. Statutes—Construction—Ambiguity.</p> <p>Where the statutory terms are of such uncertain meaning or so confused that the court cannot discern with reasonable certainty what is intended, they will be declared void.</p> <p>2. Same—Slight Inaccuracies oe Expression.</p> <p>Courts will not declare an enactment void on account of slight inaccuracies of expression.</p> <p>3. Same—Cardinal Bule oe Interpretation.</p> <p>The cardinal rule in the interpretation of statutés is to ascertain, if possible, the legislative purpose or intention in the enactment of a law.</p> <p>4. Same—Section 2750, Comp. Laws N. M.—What Court may Consider.</p> <p>Section 2750, Comp. Laws N. M. 3884, having been enacted in 1852, the court in construing it may look back to that period to ascertain the surroundings of the legislature that passed the act, the language in which it was passed, the difficulties of a correct verbal translation, and other necessary circumstances.</p> <p>5. Same—Construction—Meaning oe Phrases Therein.</p> <p>In section 2750 of Compiled Laws of New Mexico of 1884 the phrase “hereditary real estate” means “real estate of inheritance;” “possessed of an irrevocable estate in fee-simple” means “seized of an indefeasible estate in fee-simple,” and “limited to the following effect” means “construed to the following effect. ”</p> <p>■6. Deed—Implied Covenants, when Enforced.</p> <p>The covenants raised by law from particular words in a deed will be only regarded as operative in cases where the parties themselves have omitted to insert covenants.</p> <p>Same—Words “Grant, Bargain, and Sell.”</p> <p>The words “grant, bargain, and sell, ” had no technical significance at common law. They have never been held to imply a covenant of any kind, unless under statutory enactment, although they have been commonly used in the granting clause of conveyances.</p> <p>8. Same—Words Construed Most Strongly against Grantor—Exception.</p> <p>The rule that the words employed in a deed must be construed most strongly against the grantor, ought not to be enforced in a case where the statute is in derogation of the common law, and should be construed strictly.</p> <p>9. Same—Implied Warranties oe Seizin not Favored by Courts.</p> <p>Implied warranties of seizin are to be discouraged as dangerous, and tending to impose upon a grantor a burden of responsibility which by the conveyance he did not intend to assume.</p>

<p>1. Judgment in Vacation—Jurisdiction—Stipulation.</p> <p>A stipulation between the parties to a garnishment proceeding, that the? “garnishee may have ten days from this date to answer the garnishee sum- ' mons; that the said answer may be made in vacation; and that the order or judgment of the court necessary to determine the liability of the garnishee upon its answer maybe entered upon the record of said court, the same as if ail the proceedings had been during the April term of said court; and that either party may take such steps to determine the liability of the garnishee in vacation the same as if the same might or could have been during the term of said court,”—will not have the effect to confer jurisdiction on a court acting thereunder; and a judgment rendered in pursuance thereof, in vacation, is coram nonjudice, and void.</p> <p>2. Appeal—Final Order.</p> <p>Such a judgment, being void, is not a final order from which an appeal will lie.</p>

<p>Practice—Order during Vacation upon Motion Filed during Term.</p> <p>An order during vacation dismissing attachment proceedings, and ordering the attached property released, upon a motion therefor filed and argued during term, is void, and the motion is thereafter still pending.</p>

<p>Writ op Error—Amendment—Teste—Return-Day.</p> <p>A writ of error providing and designating all the essentials of such a writ, under section 517 of the Compiled Laws and the rules issuing out of the supreme court, containing the elements stated in said section, and with return-day as provided for in rule 21, upon a prmaipe filed therefor with the clerk who-issues it in discharge of a ministerial duty, may be amended nunc pro tunc, as of the date of the writ, by striking out of the teste the word “associate” and writing in lieu thereof the word “ chief, ” descriptive of the judge, and by adding the return-day in cases where it has been omitted when the writ issued.</p>

<p>Error to district court, Santa Ee county.</p>

<p>1. Mechanic’s Lien—Bill to Enforce—Pleading.</p> <p>A bill to enforce a mechanic's lien on railroad property, referring to the notices filed, as prescribed by statute, and setting out in detail the work and labor performed and materials furnished, is sufficient, though it does not specifically set out the particular items stated in the notice.</p> <p>2. Same—Claim and Notice of Lien.</p> <p>No lien can be allowed for labor and materials not embraced in the claim and notice of lien, and such an item will be stricken from the decree in complainant’s favor.</p>

<p>Criminal Law—Larceny—Infamous Crime—Information.</p> <p>The crime of larceny is an infamous one, for which a person cannot be prosecuted merely upon an information.</p>

<p>Appeal from district court, Santa Fe county.</p>

<p>1. Appeals in Criminal Cases—Continuance oe Motion eor Reargument.</p> <p>Where, after a,judgment of conviction is affirmed on appeal, a motion for rehearing is filed, but is not heard at that term, and is argued and taken under advisement at the term following, but is again continued until the next succeeding term, it is still before the court for determination.</p> <p>2. Criminal Law—Continuance—Application.</p> <p>Under Comp. Laws FT. M. 1884, § 2050, on an application which is legally sufficient, a continuance must be granted, unless the opposing party will admit that the witness, if present, would testify to the facts stated in the application. The provision of section 2052, Id., allowing the opposite party to file written objections, does not entitle h'm to deny the allegations of fact in the application, but only to question its legal sufficiency.</p>

<p>Appeal from district court, San Miguel county.</p>

<p>Error to district court, Bernalillo county.</p>