is whether the omission of the words, "or buying or selling any goods, wares, merchandise, chattels, or liquors," in the amended act, and leaving in that act the words, "or engaged in any labor, except works of necessity, charity, or mercy," had the effect to repeal the act as an offense for selling of merchandise, liquors, etc., on Sunday, and leaving it in force as to all other kinds of business or labor. We think what we have said is sufficient to show that they do not work a repeal by necessary implication, even if there had been no repealing clause. A meaning can be given to the legislation in question, which the words will bear, which is not unreasonable, or inconsistent with its scope and apparent purposes, whereby the amended act may be read, construed, and interpreted according to its letter without any restricted meaning being attached to it by reason of the former act. Implied repeals are not favored, and where they exist the implication must be necessary. There must be a positive repugnance between the new and the old. Wood v. U. S., 16 Pet. 342; Daviess v. Fairbairn, 3 How. 36; U. S. v. Tynen, 11 Wall. 88; State v. Stoll, 17 Wall. 427; Ex parte Crow Dog, 109 U. S. 556. In the last case here referred to it is said: "Where the words relied on are general and inconclusive, and the fact that to hold that a statute repeals by implication a previous act which would reverse a well settled policy of congress, justifies the court in requiring a clear expression of the intention of congress in the repealing act." So, in this case, if it were the intention of the legislature, by the amendment of 1887, to repeal by implication the statute making it an offense to sell goods, wares, merchandise, and liquors on Sunday, which had long been in force in the territory, and which up to the time of the amendment had not even been subject to the exception of "necessity, charity, or mercy," as other kinds of labor had, and that thereafter this kind of business was to

be legalized on Sunday, and that the words, "engaged in any labor," were to have no application to that class of business, the courts are justified in requiring a clear expression of the intention of the legislature to that effect. This principle is more clearly expressed in a case which we think is directly in point on the question in controversy,-that of Murdock v. City of Memphis, 20 Wall. 590,-in which case one of the questions involved was whether the second section of the act of February 5, 1867, repealed all or any part of the twenty-fifth section of the act of 1789, commonly called the "Judiciary Act," and in the decision the court says: "The act of 1867 has no repealing clause, or any express words of repeal. If there is any repeal, therefore, it is one of implication. The differences between the two sections are of two classes, namely: The change or substitution of a few words or phrases in the latter for those used in the former, with very slight, if any, change of meaning, and the omission in the latter of two important provisions found in the former. It will be perceived by this statement that there is no repeal by positive, new enactment inconsistent in terms with the old law. It is the words that are wholly omitted in the new statute which constitute the important feature in the question thus propounded for discussion. A careful comparison of these two sections can leave no doubt that it was the intention of congress, by the latter statute, to revise the entire matter to which they both had reference; to make such changes in the law as it stood as they thought best; and to substitute their will in that regard, entirely, for the old law upon the subject. We are of the opinion that it was their intention to make a new law, so far as the present law differed from the former, and that the new law, embracing all that was intended to be preserved of the old law, omitting what was not so intended, became complete in itself, and repealed all other laws

on the subject embraced within it. The result of this reasoning is that the twenty-fifth section of the act of 1789 is technically repealed, and that the second section of the act of 1867 has taken its place. What of the statute of 1789 is embraced in that of 1867 is of course the law now, and has been ever since it was first made So. What is changed or modified is the law, as thus changed or modified. That which is omitted ceased to have any effect from the day that the substituted statute was approved. * What were the precise motives which induced the omission of this clause, it is impossible to ascertain, with any degree of satisfaction. In a legislative body like congress, it is reasonable to suppose that, among those who considered this matter at all, there were varying reasons for consenting to the change. No doubt there were those who believed that the constitution gave no right to the federal judiciary to go beyond the line marked out by the omitted clause; thought its presence or absence immaterial, and, in a revision of the statute, it was wise to leave it out, because its presence implied that such a power was within the competency of congress to bestow. There were also, no doubt, those who believed that the section standing without that clause did not confer the power which it prohibited, and that it was therefore better omitted. It may also have been within the thought of a few that all that is now claimed would follow the repeal of the clause. But, if congress or the framers of the bill had a clear purpose to enact affirmatively that the court should consider the class of errors which that clause forbid, nothing hindered that they should say so, in positive terms; and in reversing the policy of the government, from its foundation, in one of the most important subjects upon which that body could act, it is reasonable to be expected that congress would use plain and unmistakable language in giving expression to such intention. There is, therefore, no

sufficient reason for holding that congress, by repealing or omitting this restrictive clause, intended to enact affirmatively the thing which the clause had prohibited." The conclusions thus reached in the above case are directly in point in the case under consideration. If the amended act, as changed and modified, became the law, as changed or modified, and that which was omitted ceased to have any effect from the day that the substituted act was approved, it is clear that the omitted words did not have the effect to make the amendment a repealing statute of the offense charged in the indictment, and it is equally clear, if as therein announced, that it is not sufficient reason for holding that the legislature, by omitting a clause, thereby intended to enact affirmatively the thing which the clause had prohibited. The conclusion reached by the court in its former opinion is the correct one, and therefore the motion for the rehearing will be overruled.

MCFIE and SEEDS, JJ., concur in the result. O'BRIEN, C. J., dissents.

[No. 487. February 28, 1893.]

GEORGE R. SWALLOW, PLAINTIFF IN ERROR, V.
WILLIAM BAIN ET AL., DEFENDANTS
IN ERROR.

CONTRACT-COVENANT-BREACH-VALUE OF STOCK EVIDENCE.-In an action of covenant, for breach, on a contract in writing, under seal, by the terms of which the defendants guarantied that certain corporate stock owned and held by a certain bank was worth forty cents on the dollar, per share, on the amount paid in on each share, and it was provided that, in case they should furnish to the bank within ninety days a statement in writing, signed by the cashier of a certain other bank, that the stock was worth that amount, or satisfied the bank of that fact in any other manner, they were to be released, where the defendants pleaded that they had furnished such statement in writing as required, which it was claimed had been lost, and defendants offered the testimony of the person making it, to prove its contents, who testified that the stock had no market value; that the

writer and others who were officers of the corporation were about to bring suit to recover assets wrongfully in the hands of other parties; that there was a contest between certain stockholders; that they would recover the stock; and that the assets would be worth about the par value of the stock; and the testimony for the plaintiff was that the statement contained only a part of that information; that the writer hoped to succeed, and, in that case, expected the stock to be worth what was paid upon it, etc.; and there was evidence that the cashier of the bank to which the required statement was to be sent, admitted that the bank had received a statement, and was satisfied with it, but which he denied-Held: There was no such positive statement furnished, as was required by the contract; and the question whether the statement provided for in the contract had been furnished or not being the sole question put in issue by defendants' plea, testimony as to means used by defendants to satisfy the bank or its officers other than by the statement alleged to have been furnished by the plea, and provided for in the contract, was not material to the issue, and can not be considered. The court therefore erred in refusing to instruct the jury to return a verdict for plaintiff.

ERROR, from a judgment for defendants, to the Fifth Judicial District Court, Socorro County. Judgment reversed.

The facts are stated in the opinion of the court.

W. B. CHILDERS for plaintiff in error.

Parol evidence of the contents of a writing is not admissible if a copy of the writing is in existence. The copy must be produced as the best evidence obtainable. 1 Greenlf. Ev., sec. 84, and note; 1 Whar. Ev., sec. 90, et seq.; Renner v. Bank of Columbia, 9 Wheat. 596; Cornett v. Williams, 20 Wall. 226.

The fact that the letter book was in Texas, the witness having been brought here to testify, makes no difference. Kirchner v. Laughlin, 5 N. M. 369.

The court erred in permitting the witness, over plaintiff's objection, to get the date of his letter from an examination of the letter press copy, made some ten months before he testified, without producing the paper used to refreshen his memory. 1 Greenlf. Ev. 436.