Volume 9 — New Mexico Reports

Error, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court.

Error, from a judgment for plaintiff by default, to tbe Second Judicial District Court, Bernalillo County. The facts are stated in tbe opinion of tbe court. Tbe appearance of a defendant, once regularly entered, can not be withdrawn without leave of court. H. S. v. Curry, 6 How. Ill; see, also, Micbew v. McCoy, 3 W. & Sarg. 501; Dana v. Adams, 13 111. 692, 693; Creighton v. Kerr, 20 Wall. 13.

Appec¿l from a judgment of the First Judicial District Court, convicting defendant of unlawfully cutting timber on public lands. Affirmed; Hamilton, J., dissenting. The facts are stated in the opinion of the court.,

Error, from a judgment for defendant, to the Third Judicial District Court, Grant County. The facts are stated in the opinion of the court. When settlement has been made and balance struck, an action at law will lie for recovery of .balance. DeJarnett’s Ex’r v. McQueen, 31 Ala'. 230, 68 Am. Dec. 164; Edgar v. Paca, 1 N. M. 613.

<p>No written opinion filed.</p> <p>Appeal, from a decree for defendant, from the Fifth Judicial District Court, Chavez County.</p>

Appeal, from a decree of the Second Judicial District Court, Bernalillo County, sustaining a demurrer to the bill. The facts -are stated in the opinion of the court. It is not necessary that a creditor shall have reduced his claim to a judgment before he can maintain a bill under the statute of 1889. Griffith v. Cok, 79 Ky. 564; In re Klein, 14 Fed. Gas. 718; Barton v. Barbour, 104 IT.

<p>On motion for rehearing.</p>

The'decision in this case follows the opinion in Same v. Same, No. 673, 9 N. M., ante page 31. Appeal, from a decree of the Second Judicial District Court, Bernalillo county.

Error, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court.

Error from a judgment for plaintiff, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The instructions given by the court do not in any wise state the law as to proximate cause. C. N. O. & T. P. R’y Co. v. Mealer, 50 Fed. Rep. 725; Scheffer v. R’y Co., 105 IT. S. 249.

Appeal, from .a decree for complainant, from the Fourth Judicial District Court, Colfax County. The facts are stated in the opinion of the court. The power of the court to hold a contract of the character of the contract in question, void as to any excess over the limit fixed by law seems recognized by a number of authorities. Dunn v. Great Falls, 31 Pac. Rep. 1017; Culbertson v. Fulton, 127 111. 30; Comp. Laws, 1884, sec. 1622, par. 67-71.

Certiorari. Application ex parte of Leonard Lewisohn and J. T. IVIcLaughlin, for writ of certiorari to the Eirst Judicial District Court, Santa Ee County. Smith, O. J., dissenting. The facts are stated in the opinion of the court. The writ of certiorari is a common law writ. 4 Cy. of P. & P. 18. As to question of jurisdiction see: Territory v. Yaldez, 1 N. M. 536; 4 Cy. P. & P. 103, and citations; Comp. Laws, 1884, sec. 1876; Id., sec. 1836. See, also, TJ. S. Eev.

Error, from a judgment for plaintiff, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The instructions of the court entitling plaintiff to recover damages up to the date of rendition of the verdict, if the jury found for plaintiff, was erroneous. 26 Am. and Eng. Ency. Law, 674; Gardner v. Field, 1 Gray, 151; Cattle Co. v. Mann, 130 U. S. 78; Insurance Co. v. Conard, 1 Bald. 138; Sedg. Meas. Dam.

Error, from a judgment for defendant on Ms intervening petition claiming’ the fund attached as exempt, to the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. The principal question presented here is as to the jurisdiction of the district court, the defendant claiming below that he was not a party to the garnishment proceedings as no formal notice was given to him.

Prohibition. Application of Roe Cluing, for a writ of prohibition, to H. H. Ribble, a justice of the peace for precinct No. 26, Bernalillo County. The facts are stated in the opinion of the court. The law under which the actions complained of in the petition, sections 7, 8, 9, act February 27, 1895, is contradictory, inconsistent and unconstitutional. State y. Barlow, 91 N. O. 550; Const. U. S. Amend., art. 8; Comp. Laws 1884, sec. 2594.

Appeal, from an order denying a motion to set aside an order authorizing the receiver of defendant company to sell certain property of defendant, from the Second Judicial District Oourt, Bernalillo County. The facts are stated in the opinion of the court.

Appeal) from a decree for complainants, from the Eifth Judicial District Oourt, Eddy County. The facts are stated in the opinion of the court. When the parties of their own accord withdraw a cause from the court, and refer it to á tribunal of their own selection, the finding of such tribunal is conclusive as to the facts found, subject alone to impeachment for fraud or to be set aside on account of entire absence of proof.

Error, from a judgment for plaintiff, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The court below erred in making the order of consolidation. Even under section 921, Revised Statutes, separate actions can not be consolidated for any purpose, where the defenses differ, as here, unless by consent of parties. Mutual Life Ins. Co. v. Hillmon, 145 H. S. 285. See, also, Cox Com. Law Prac. 239, sec. 7; 2 Arch.

Appeal, from a decree for complainant, from the Eirst Judicial District Court, Santa Ee County. The facts are stated in the opinion of the court. “The equitable lien of creditors of the old company upon its property would continue until after a transfer to a purchaser for value; but they would have no equitable lien upon the assets of the new company and would have no right to rank as its creditors.” Morawetz Corp., sec. 811. See, also, Id., sec. 812.

Appeal, from a judgment for complainant from the Second Judicial District Court, Bernalillo County. Bantz, J., dissenting. The facts are stated in the opinion of the court. Complainant was bound to disclose to Walker the fact of Gilbert’s dishonesty. Story, Eq.

Appeal, from a decree for complainant, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. Hnder the Mexican and Spanish law the wife had no vested interest in the community property until a dissolution of the marriage community. Packard v. Arellanes, 17 Cal. 539; Ball on Com. Prop., secs. 32-35; Schmidt’s Civil Law, art. 51; App. to Ball on Oom. Prop. 396; Van Moren v. Johnson, 15 Cal. 308; Platt on Prop.

Error, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo County. Under the Spanish and Mexican law, the interest of the wife in the ganancial or community property was not regarded as a part of her estate. This interest was not transformed, by her death, into a legal right. Packard v. Arellanes, 17 Cal. 539; Comp. Laws, sec. 1416; Panaud v. Jones, 1 Cal. 513; Ord v. De La Guerra, 18 Id. 74; Scott v. Ware, 13 Id. 470; Ballinger on Comm.

Appeal, from a judgment for defendant, from the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. The contract was entire it is true, but it included in its terms only such services as were properly in the line of the duties of a superintendent. Even if he performed other work for the company, that can not affect the construction of the contract itself.

Appeal, from ,a decree for respondent, from the Eifth Judicial District Oonrt, Chavez County. The facts are stated in the opinion of the court. The decree of reference is the limit of the special master’s authority, and a finding by him on a matter not referred, and not raised in the pleading, should be ignored as null. The assignment contains a recital of uncontradicted facts. Maury v. Lewis, 10 Yerg. (Tenn.) 115; Rawson v. Rawson, 2 Johns.

Appeal, from a decree for plaintiff, from the Second Judicial District Court, Bernalillo County.. Bantz, J., dissenting. The facts are stated in the opinion of the court. The court below had no right to review the finding of facts by the master, unless they were manifestly erroneous, or wholly unsupported by the evidence, which is not the case here; and no exceptions thereto were filed upon these grounds. Girard Ins.

Error, from a judgment for defendants, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. The declarations offered were admissible. 1 Greenlf. Ev., secs. 147,148; 2 Best on Ev., sec. 500; Steph. Ev. 40, art. 28; Underhill Ev., sec. 118; 5 Am. and Eng. Ency. Law, 366; Lincoln v. Claflln, 7 Wall. 132; Daggett v. Wallace, 13 S. W. Rep. 49; 4 Am. and Eng. Ency. Law, 583.

Appeal, from and error to tbe Fifth Judicial District Court, from a judgment for intervener on ber intervening petition. Tbe facts are stated in tbe opinion of tbe court. In setting aside tbe homestead in tbis case tbe court acted without authority of law. Fink v. O’Neill, 106 U. S. 196. See, also, New Orleans v. Winter, 1 Wheat. 91, 95; Hepburn v. Ellzey, 2 Crancb, 445, 453. Tbe court erred in reopening tbe judgment to allow petitioner to make claim for homestead.

Appeal, from a judgment of the Fourth Judicial District Court, San Miguel County, convicting defendant of murder in the first degree. Errors complained of and not presented to tile court be^ low, by motion for new trial, will not be considered by the appellate court. Padilla v. Territory, 8 N. M. 562, and cases cited.

Error, from a judgment for plaintiff, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The authentication of the alleged transcript was insufficient, because plaintiff below has attempted to certify his own record. Filkins v. O’Sullivan, 79 111. 524; Morton v. Crane, 39 Mich. 528; Singletary v. Carter, 1 Bail. (S. C.) 467.

Error, from a judgment for defendant to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. Plaintiffs’ second replication to defendant’s third plea, should have been sustained as a valid* defense. Comp. Laws 1884, sec. 1868. The statute did not begin to run in defendant’s favor until he became a resident of this territory in 1895.

Appeal, from a decree for defendants dismissing the bill, from the Third Judicial District Court. all concurring; Hamilton and Laughlin, JJ., in the result. The facts are stated in the opinion of the court. “Natural falls or other obstructions do not destroy the navigable character of a river above them, if it be navigable.” Spooner v. McConnell, 1 McLean, 337; 7 Meyers’ Led. Dec., sec. 3152; Escanaba Co. v. Chicago, 107 U. S. 678; “The Montello,”%20 Wall. 430.

Error, from a judgment for plaintiff, to the Eirst Judicial District Oourt. Motion to dismiss writ of error. A bill of exceptions is not required to contain all the evidence, but only so much thereof as is pertinent to the rulings which the plaintiff in error seeks to have reviewed, and as is necessary to enable the appellate court to fully understand the circumstances and conditions under which each particular ruling was made.

Appeal, from a judgment for plaintiffs, from tbe Second Judicial District Court, Bernalillo County. Tbe facts are stated in tbe opinion of tbe court.

Error, from a judgment for defendant, to the Second Judicial District Court, Bernalillo County. A judgment can not be revived under our statutes more than seven years after its rendition. Comp. Laws, secs. 1860, 1861; Session Laws 1891, secs. 1, 2, chap. 53. Our legislature amended the common law rule as to executions. Laws 1887, chap. 61, p. 213. A judgment can not be revived, so as to be given life, for a period of fifteen or twenty years. Vick v. Justice, 31 Miss. 201.

Error, from a judgment for plaintiffs, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. Suits for the recovery of real estate in this territory must be brought within ten years from the time the cause of action accrues, except in case of certain disabilities mentioned in the statute. Comp.

<p>SYLLABUS BY THE COURtI</p> <p>Criminal Law — Appeal—Transcript--Duty op Clerk. — On appeal in a criminal case, where the appeal operates as a stay of proceedings, either by virtue of the statute as in murder cases or by order of the district court, it is the duty of the clerk of that court to send up the transcript whether appellant pay his fees therefor or not.</p>

Error, from a judgment for defendant, to the Second Judicial District Court, Bernalillo County. overruling Lockhart v. Wills et al., page 263, ant? The facts are stated in the opinion of the court The prior discovery and possession by Pilkey of the “Sampson Mine” was sufficient possession and title on the part of plaintiff to sustain ejectment against defendants as intruders, having no better title. Comp.

Error, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo county. The facts are stated in the opinion of the court. Proceedings by attachment are to be strictly construed, as statutory and in derogation of the common law. Staab v. Hersch, 3 N. M. 209. A judgment by default can not be had until the jurisdiction of the subject-matter and the person of the defendant appears from the record.

Error, from a judgment for defendant, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. Under the pleadings and the evidence plaintiff should have recovered. 2 Suth. Dam. 440; 5 Am. and Eng. Ency. Law, 35; Spahnv. Willman, 39 Atl. Rep. 787, 790; Smith v. Packard, 27 S. E. Rep. 586; Baca v. Barrier, 2 N. M. 131; 1 Suth. Dam. 265; 2 Par. Con. 523.

Error, from a judgment for the United States, to the Eirst Judicial District Court. •The facts are stated iu the opinion of the court. The court properly instructed the jury that the burden of proof was on defendant to show that it required the lumber for its railroad line and uses as authorized by law, delivered to it at the sawmill at Lumberton between the time the mill was located there and the time it was removed from that place.

Error, from a judgment for the United States, to the Eirst Judicial District Court. The facts are stated in the opinion of the court. The lands described in these causes were “adjacent” to the railroad company’s lines, within the meaning of the act of congress of June 8, 1872. U. S. v. Eailway Co., 150 U. S. 1; U. S. v. Eailway Co., 31 Eed. Eep. 886 (899); U. S. v. Chaplin, Id. 890; U. S. v. Lynde, 47 Id. 297; U. S. v. Bacheldor, 48 Pac.

Error, from a judgment by default, to the Fifth Judicial District Court, Socorro County, upon a sentence of the justice of the peace of Precinct No. 16, sentencing defendant to pay a fine of ten dollars and costs. Sec. 39, chap. 1, Comp. Laws 1884, under which plaintiff in error was tried and convicted, was expressly repealed by an act of the legislature passed February 28, 1895. Sec. 7, chap. 1, p. 15.

Error, from a judgment for plaintiff, to tbe Second ■Judicial District Court, Bernalillo County. Motion by defendant in error for affirmance. Affirmed. Motion by plaintiff in error for set-off. Tbe facts are stated in tbe opinion of tbe court. Tbe attorney’s lien at common law existed only as to any balance which might be due to tbe client after the right of set-off was allowed.

Error, from a judgment for plaintiff, to the Fifth Judicial District Court, Lincoln County. The facts are stated in the opinion of the court. The admission of a firm debt by one of the partners is binding on the firm. 17 Am. and Eng. Ency. of Law 1077, and citations.

Appeal, from a judgment of the Third Judicial District Court, Dona Ana County, convicting defendant of perjury.. The facts are stated in the opinion of the court. The evidence in this case is not sufficient to support the charge of perjury. Bish. New Grim. Prac. 920; State v. Lea,, 3 Ala. 602; State v. Garland, 3 Dev. (N. C.) 114; Juaraquin v. State, 28 Tex. 625.

Appeal, from a judgment convicting defendants of arson, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. The accused has a right to a full box at all times when exercising his peremptory- challenges. Territory v. Sumner, 46 Pac. 16; Territory v. Barrett, 8 N. M. 70; Shelby v. Com., 16 S. W. Rep. 461. See, also, Oomp. Law 1897, sec. 3404; People y. McQuade, 18 N. E. Rep. 156; Jenkins v. Com., 4 S. W. Rep.

<p>Appeal, from Second Judicial District Court, Bernalillo County. Motion for retaxation of costs.</p>

Error, from a judgment for defendant, to the Third Judicial District Court, Grant County. The facts are stated in the opinion of the court. The warrant fixes no time when it is payable, but like a promissory note which contains nothing as to the time of its maturity, is payable on demand. Libley v. Nickelborg, 28 Minn. 38; Salinas v. Wright, 11 Tex. 572; Bank v. Price, 52 la. 570; Meador v. Savings Bank, 50 Ga. 601.

Error, from a judgment for defendants, to the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. To authorize the right of intervention under sections 2947, 2948, 2949, Comp. Laws 1897, the interest of the intervener must be such that he would directly gain or lose by the result of the action. Smith v. Gale, 144 H. S. [Law Ed.] 524, 525. - .

Error, from a judgment for defendant, to the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. If the debtor is not an inhabitant of the territory and has no place of abode at which summons may be lawfully served, he may be proceeded against by attachment. Wap. on Att. 36, 27; Monroe v. Williams, 16 S. E. Rep. 533; Frost v. Brisbin, 19 Wend. 11; Haggard v. Morgan, 5 N. Y. 422; Drake on Att., sec. 69.

Appeal,- from a judgment for plaintiff, from the Eifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. The court erred in excluding the written memorandum of sale and the receipt for the promissory note executed and delivered by plaintiff’s intestate to the defendant below. Comp.

Appeal, from a judgment for plaintiff, from tbe Second Judicial District Court, Bernalillo County. Tbe facts are stated in tbe opinion of tbe court. The appellants, Lee and Weaver, having signed the note-as accomodation makers at the request of the AlburquerqueNational Bank and for its benefit, it became primary obligor,, and payment of the note by said bank cancels the same. Tied.. on Com. Paper, sec. 376. The bank paid the note, it did not purchase it. Danl. Neg.

Appeal,from a decree for complainants, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. Under the act creating boards of education, they are not quasi municipal corporations, but political corporations or agencies of the territory to promote the educational interests thereof. Acts Reb. 11, 1891, and Feb. 26, 1891; 1 Dill, on Munic.

Appeal, from a decree for complainant, from tbe Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court.

Error, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. Plaintiff having' alleged title by transfer to him from Tiffany could not recover upon the notes as sole holder and owner, or as survivor of Tiffany. Dicey on Parties to Actions, 149, rule 115; 1 Ohitt. PI. 8, 19, 305, 307; Yinal v. Oil & Oil Land Co., 110 TJ.

Error, from a judgment for plaintiff, to tbe Second Judicial District Court, Bernalillo County. Tbe facts are stated in tbe opinion of tbe court. If the plaintiff below had only made a scintilla of proof of her right to recover, the case should have been submitted to the jury. 2 Thomp. on Trs., sec. 2446, and citations; Woods v. Insurance Company, 50 Mo. 112. Where there is a conflict of evidence it is the duty of the court to submit the case to the' jury.

Error, from a judgment for defendant, to the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court.

Error, from a judgment for defendant, to the Eirst Judicial District Court, Santa Ee County. The facts are stated in the opinion of the court. The servant assumes only the risks-ordinarily incident to his employment. No extraordinary or unusual risks are. assumed by him, unless he had knowledge or means of knowing of their existence. Cowan y. Pailroad Oo., 80 Wis. 284; Trunk P’y Oo. v. Cummings, 106 U. S. 701; Cerrillos Coal B. P. Co. v. Deserant, 49 Pac.

Error, from a judgment of abatement, to the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. The right of demanding a bond for costs or, in fact, the payment of costs, is purely a matter of statute. Price v. Garland, 28 Pac. Bep. (N. M.) 182; 4 Am. and Eng. Ency. of Law 324; In re Almus, 3 Dem. (N. Y.) 358; Gordon v. Allison, 9 la. 317; 74 Am. Dec. 353; Comp. Laws, sec. 1844.

Error, from a decree for complainants, to the Eifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. We insist that the decree was final as between complainants and defendants as to all the property, in any event final as to the personalty. Potter v. Beal, 5 H. S.-App. 83; Grant v. Insurance Co., 106 H. S. 431; Forgay v. Conrad, 6 How.

Appeal, from a judgment for defendants, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. The court below, in effect,.held that the dynamo alone is the only part of an electric light plant for which a lien will lie. This is error. Comp. Laws, 1884, see. 1522; Phil, on Mech. Liens [3 Ed.], sec. 200; Eetchet v. Drake, 12 Pac. Rep. 694; Hughes v. Electric Light, etc., Co., 32 Atl.

Appeal,- from a judgment of the Third Judicial District Court, convicting defendants of a violation of section 5508, Rev. Stat., U. S. overruling in part Territory v. Hicks, 6 N. M. 596. The facts are stated in the opinion of the court. Upon an indictment for conspiracy under the Indiana statute, it is necessary to specify the felony which it was proposed to commit. Stat.

Error, from a judgment for defendant, to tbe Fifth Judicial District Court, Socorro County. Parker, J., dissenting. Tbe facts are stated in tbe opinion of tbe court. The court erred in striking out tbe first paragraph of the answer of plaintiff in error. Eames v. Kaiser, 142 U. S. 488; Sloan y. Loughert, 32 Pac. Pep. 1015; Stortz v. Finkelstein, 66 N. ~W. Pep. 1020.

Error, from a judgment for plaintiffs on the answer of the garnishee to interrogatories filed, to the Second Judicial District Court, Valencia County. with award for damages. The facts are stated in the opinion of the court. “To charge the garnishee for a debt due defendant, it must be absolutely payable at present or in future, and not dependent on any contingency at the time of service of process.” 8 Am. and Eng. Ency. 1194, 1189; Lovejoy v. Insurance Co., 11 Fed. Bep. 63.

The facts of this case are substantially the same as those in Alliance Assurance Co. v. Bartlett & Tyler, decided at this term, p. 554 ante, except as to amount of garnishee’s liability, and the cause is affirmed for the reasons there stated. Error, from a judgment for plaintiffs, to the Second Judicial District Court, Valencia County. Affirmed, with award for, damages.

<p>Appeal, from an order of the Second Judicial District Court, . Bernalillo County, commanding the probate judge of Bernalillo county to grant an appeal to that court from an interlocutory order of the probate court.</p> <p>The facts are stated in the opinion of the court.</p> <p>Hnless otherwise provided by statute, questions arising in legal proceedings can not be reviewed in an appellate court, either upon appeal or exception, until a final judgment has been rendered in the court below. 2 Ency. PI. and Pr., 52, and citations; also Huntington v. Moore, 1 N. M. 471; Bran-ford y. Erant, Id. 579; Oomp. Laws 1884, sec. 2193; Laws 1891, chap. 66, p. 123; see. 3136, Oomp. Laws 1897; Territory v. Las Yegas Grant, 27 Pac. Bep. (N. M.) 414.</p> <p>A final judgment is one that leaves nothing to be judicially determined between the parties in the trial court. 2 Ency. PL and Pr., 53, 54; Bostwick v. Brinkerhoff, 107 H. S. 3; Benjamin v. Dubois, 118 Id. 48.</p> <p>There is no appeal from an interlocutory judgment of.a probate court without express statutory authority. Oauthorne v. Weisinger, 6 Ala. 714; McAllister v. Thompson, 32 Id. 497; Jones v. Jones, 42 Id. 218; Waters v. Coke, 39 Id. 730; Brown v. Anderson, 13 Ga. 171; Eager v. Eager, 8 111. App. 188; Appeal of Biggs, 52 Ilan. 184; Showers v. Morrill, 41 Mich. 700; Wiggle v. Owen, 43 Miss. 158; Troup v. Bice, 49 Id. 248; Dyer v. Carr, 18 Mo. 246; In re Walker, 3 Bawle (Pa.) 243; Appeal of Mitchell, 60 Pa. St. 502; Williams v. Saunders, 45 Tenn. 60; Adams v. Adams, 21 Yt. 162; In re Paten, 72 Cal. 576; Horseley v. Hopkins, 25 Ny. 53; Gray v. Grundy, Id. 133; Watts v. Jones, 5 Ny. 688; Chom v. Chom, 98 Ny.; Bieffel v. Boissiere, 4 Mart. (La.) 366; Succession of Labaure, 38 La. Ann. 235; Elliott v. Elliott, 133 Mass. 555; Appeal of Oalterson, 100 Pa. St. 9; Himball v. Nimball, 19 Yt. 579; Leach v. Leach, 50 Yt. 618; Elliott on App. Proc., sec. 84.</p> <p>The district court possesses superintending control over probate courts of this territory. Oomp. Laws 1897, sec. 900; Leitensdorfer v. Webb, 1 N. M. 47; Territory v. Yaldez, 1 Id. 540; In re Henifiques, 5 Id. 178; Perea v. Harrison, 7 Id. 673.</p> <p>The statutes of New York and Iowa give to superior tribunals superintending control over inferior courts. In each of these jurisdictions the right of appeal such as appellee contends for, within the general limits indicated, is recognized. Beach v. Fulton Bank, 2 "Wend. 225; Rowley v. Van Benthuyson, 16 "Wend. 377; Taylor v. Delaney, 2 Gain Gas. 143; Richards v. Burden, 31 la. 305; June Pierson’s Exors., 13 Id. 449.</p>

<p>Error, from a peremptory writ of mandamus issued and obeyed . by plaintiffs in error, to -tbe Fourth Judicial District Court, Colfax county.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p> <p>Chapters 6, 33, of tbe Laws of 1891, under which tbe county seat of Colfax county was removed from tbe town of Springer to tbe town of Raton, and bonds issued for the erection of a courthouse and jail, are local and special laws, and therefore in conflict with the act of congress of July 30, 1886, and void. State ex rel. Columbus v. Mitchell, 31 Ohio St, 592; State v. Herman, 75 Mo. 340; Devine v. County Comm’rs, 84 HI. 591; State v. Hammer, 42 N. J. Law 435; Anderson v. City of Thornton, Id. 487; Wheeler v. Philadelphia, 27 Pa. St. 338; Commonwealth v. Patton, 88 Id. 258; Morrison v. Bachert, 112 Id. 322; Topeka v. Gillette, 5 Am. and Eng. Corp. Cas. 290; Mode v. Beasley, 42 N. E. Bep. 728; Earle v. Board'of Education, 55 Cal. 489.</p> <p>The law is not local or special because it does not apply to the removal of all county seats. Edmunds v. Herbrandson, 50 N. W. Bep. 973; Fellows v. Walker, 3-9 Fed. Bep. 651; State v. City of Kansas City, 31 Pac. Bep. 1102. See, also, as to basis of classification, Harwood v. Wentworth, 162 H. S. 547; Commissioners v. McMullin, 25 N. E. Bep. 677; State v. Spaulde, 34 N. W. Bep. 165.</p> <p>The legislature is the sole judge of what reasonable and natural conditions and circumstances shall form the basis of classification. State v. Donovan, 15 Pac. Bep. (Nev.) 785; Cummings v. City of Chicago, 33 N. E. Bep. 855; State v. City of Kansas City, supra, 1102; Lloyd v. Smith, 35 Atl. Bep. (Pa.) 200.</p>

<p>Appeal, from a judgment of the Fifth Judicial District Court, Eddy County, convicting defendant of larceny and sentencing him to three years imprisonment in the penitentiary.</p> <p>The facts are stated in the opinion of the court.</p> <p>The affidavit in support of the motion for a continuance is clearly within the requirements of the.law. Comp. Laws 1897, sec. 2986. See, also, McAdams v. State, 5 S. W. Rep. 826; Rider v. State, Id. 829; "Williams v. State, 6 Neb. 34; Hayne v. State, 14 Id. 303; G-randy v. State, 43 N. W. Rep. (Neb.) 747; Baker v. Comm., 10 S. W. Rep. 336; Maines v. State, 9 Id. 51; State v. Adams, 3 So. Rep. 30; State v. Boitréaux, 31 La. Ann. 188; State v. Anderson, 9 S. W. Rep. (Mo.) 636; Curtis v. State, 40 Id. 266.</p> <p>“When the evidence adduced on the trial made it apparent that the absent testimony was not only probably true, but very material to the interests of the defendant, it should have availed on the motion for new trial, and the same should have been granted. Price v. State, 2 Soth. Rep. 623; Frazier v. State, 2 S. W. Rep. 637; Tucker v. State, Id. 893.</p> <p>The description of the property in the indictment must be stated with reasonable certainty. The term “one neat cattle” is too indefinite. 10 Am. and Eng. Ency. of Law, 596; 2 Bish., Grim. Pr. 702; Keller v. State, 51 Ind. Ill; McLaughlin v. State, 45 Id. 338; State v. Watson, 13 la. 489; Jane v. Comm., 3 Met. (Ky.) 18; Comm. v. Dean, 109 Mass. 349; State v. Rochtorde, 52 Mo. 99; State v. Garey, 26 N. H. 339; State v. Dougherty, 4 Ore. 200; Galliger v. State, 26 Wis. 423; Rex v. Stevens, 3 East 132.</p> <p>There is no beginning or heading of what the transcript in this case purports to be, and no certificate, by the clerk of the court, as to its correctness, as required by law and the rules of this court. Comp. Laws 1897, sec.. 3140; Sup. Ct. rule 5, sec. 2. This certificate purports to be made by the deputy, and there is no provision of law for any such officer, and is not in compliance with the rule.</p> <p>After this attempted certificate, appears a paper indorsed “Bill of Exceptions,” certified to by one Orrin Rice as being “a true transcript” of his short-hand notes, and after that the judge signs and settles the same as a bill of exceptions. There is no 'date to this signature, no notice to any one appears anywhere of the time for presenting the bill of exceptions as provided by law. Comp. Laws 1897; Lumber Co. v. Pennington, 2 Dak. 470; Williams v. People, 53 Pac. Rep. 590 3 Ency. PL and Pr. 432, and notes; Snead v. Tietgen, 325.</p> <p>If the court holds that any portion of the record proper is here, it can only consider that portion of the transcript, and not the bill of_ exceptions, for the reasons stated above. Railroad Co. v. Saxton, 3 N. M. 446; Evans v. Baggs, 4 Id. 69.</p> <p>Nowhere in the alleged bill of exceptions does there appear the instructions of the court, the motion for a continuance complained of by appellant, nor any motion for a new trial, and there is nothing for this court to pass upon. Chavez v. Territory, 50 Pac. Rep. "324; Padilla v. Territory, 45 Id. 1120; Territory v. Barrett, 42 Id. 66.</p> <p>This is a statutory offense, and the description in the indictment complies with the statute which is all that is required. Bish., Stat. Crim. 426; State v. Murphy, 39 Tex. 46.</p>

Appeal, from a judgment for plaintiff', from the Fifth Judicial District Court, Eddy County. The facts are stated in the opinion of the court. Even if the warrants within themselves were sufficient to sustain a cause of action, which appellant disputes and asks the court to pass on, they were issued in violation of law, for it is admittedcby the pleadings that defendant had no money anywhere with which to pay the same, and defendant could not contract such indebtedness.

Appeal, from a judgment of the Fifth Judicial District Court, Socorro county, convicting defendant of rape. The facts are stated in the opinion of the court. An appeal brings up for review the entire cause, both as to the law and the facts in the case. Wiscart v. Dauchy, 3 Dali. 326; Crooly v. O’Brien, 24 Ind. 325; Wiles v. Railroad, 24 N. T. 443; Owen v. State, 35 Tex. 361; Williams v. Townsend, 15 Kan. 429; Martin v. Martin, 45 Pac.

<p>SYLLABUS BY THE COURT.</p> <p>Partnership — Admission of Partner — Competency—Renewal Note —Fraudulent Transfer of Property — Attachment—Affidavit Charging Fraud— Proof — Limit—Evidence—Materiality—Assignment — Mortgage—Transmission of Money by Mail. — 1. An admission or declaration made by one partner as to the firm’s assets and liabilities, for the purpose of obtaining credit, is competent evidence, at least in the absence of objection on that ground, to show the amount and kind of property the firm had at that time.</p> <p>2. The holder of a renewal note is entitled to the same remedies against a fraudulent transfer of property as if he were proceeding upon the original note.</p> <p>3. Where an attachment affidavit charges a fraudulent disposition of property by a firm, plaintiff is limited in his proof to that class of transfers.</p> <p>4. Without tracing any property, or the proceeds thereof, from either of defendant partners to his wife, it is immaterial, in support of the attachment affidavit charging fraudulent disposition and concealment, to show that defendants’ wives became the purchasers of the firm property from the assignee after assignment for creditors.</p> <p>5. Plaintiff offered in support of its attachment affidavit evidence that the son-in-law of one defendant partner, shortly after a general assignment by the firm’, paid off a mortgage on defendant’s property with defendant’s money. Held, not competent evidence to support the allegation of fraudulent disposition and concealment by the firm.</p> <p>6. Plaintiff offered to show that defendants, shortly before attachment and assignment for creditors, transmitted money through the post-office. Held, to be competent in support of attachment affidavit.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Trover — Cutting Timber prom Public Lands — Abatement—Demurrer —Partners—Individual Liability op — Weight of Evidence — Jury Question — Plea op License — Burden op Proof — Evidence—Rules and Regulations of Secretary op Interior — Instruction Embodying — Refusal—Error—Judicial Notice. — 1. Where the United States sues in trover, for damages for the cutting and converting to the defendants use timber cut from the public lands, defendants are sued individually as well as under the firm name of Gumm Bros., it is not error for the court to overrule a demurrer to a p[ea in abatement denying existence of such firm, and alleging existence of firm under another name.</p> <p>2. In such ease a partner may be sued individually without regard to the partnership.</p> <p>8. Where defendants plead a license to cut and convert such timber the burden of the proof is upon defendants upon that issue.</p> <p>4. In order to establish license under the act of congress approved June 3, 1878, it is necessary to prove compliance with section 1 of the act, and also the rules and regulations prescribed by the secretary of the interior as required by said section.</p> <p>5. Where the defendant introduces competent evidence tending to prove license, it is error to refuse instructions requested by the plaintiff embodying the rules prescribed by the secretary of the interior.</p> <p>6. The court, in such ease will take judicial notice of such rules and regulations.</p> <p>7. Where competent evidence sufficient to sustain a verdict has been given to the jury tending to prove the illegal cutting and appropriation of timber of the United States, and by the defendant, competent evidence tending to justify such acts, it is for the jury to determine the weight of such evidence, and it.is error for the court to take the ease from the consideration of the-jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Street Improvements — Petition—Special Assessment — Validity.—A petition by the owners of at least one-half of the property fronting upon a street in a municipal corporation, is a jurisdictional prerequisite to the validity of a special assessment upon such abutting property for street grading and improvement.</p>

Appeal, from a judgment of tbe Eourtb Judicial District Court, San Miguel County, convicting the defendants of rape. Reversed and remanded; Leland, J., dissenting. Tbe facts are stated in tbe opinion of tbe court. It was error to permit tbe prosecutrix to testify as to tbe particulars of her conversation and acts at tbe bouse of Cruz Segura subsequent to tbe alleged commission of tbe crime.

Appeal, from a decree for defendants, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. So far as the master’s findings of facts depends upon con-' dieting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the findings, it is entitled to all the consideration of the special verdict of a jury. Davis v. Schwartz, 155 IT.

Error, from a judgment for defendants, to the Third Judicial District Ooui’t, Dona Ana County. The facts are stated in the opinion of the court.

<p>Habeas Corpus — Return—Release From Imprisonment. — Where, on habeas corpus, there was nothing to contradict the return of the sheriff, showing that, at the date of the petition, the petitioner was not restrained of his liberty, an order releasing him from unlawful imprisonment could not be made.</p>

Appeal, from a judgment of conviction, from the Fifth Judicial District Court, Lincoln County. The facts are stated in the opinion of the court.