ASSUMPSIT. Continued.

2. ID.

DECLARATION-JUDGMENT BY DEFAULT AGAINST ADMINISTRator. In such action, where the declaration stated a cause of action against the defendants, Charles Blanchard and Louisa D. Bernard, as administrator and administratrix, without alleging that there were any assets in their hands as such, it was error to render judgment by default against them individually, but the judgment should have authorized a levy only against the goods of the intestate in their hands, and, if not sufficient to satisfy the judgment, then a levy only for the costs out of their individual property.

3. ID.

DECLARATION-DEFAULT AGAINST ADMINISTRATOR-RETURN OF NULLA BONA.-Where the declaration, in such action, failed to allege that there were any assets in the hands of said defendants, as administrator and administratrix, or that they wasted the estate, the default did not admit assets in their possession; and a return of the execution nulla bona was no proof of a waste of assets.-Senescal et. al. v. Bolton, 351.

See, also, ASSIGNMENT FOR BENEFIT OF CREDITORS, 1; CONTRACTS, 2;
PROMISSORY NOTE, 4.

ATTACHMENT. See ASSIGNMENT FOR BENEFIT OF CREDITORS.
ATTORNEYS. See CONTEMPT, 2; CRIMINAL LAW, 11; RECEIVER, 2.
BILL OF DISCOVERY.

1. REFERENCE TO MASTER-PRESUMPTION.-In a proceeding, by bill in equity against an administrator, for a discovery and accounting, where the entire case was referred to a master, without objections, to take testimony and report his findings of fact and conclusions of law thereon, it will be presumed that the reference was made by consent of all the parties.

2. ID. CONFLICTING EVIDENCE-FINDINGS OF FACT BY MASTER-PRESUMPTION. The findings of fact by a master, depending upon the weight of conflicting testimony, are presumptively correct, and are not to be disturbed, unless it clearly appears there has been error or mistake on his part, and any disregard of this rule by the court, acting solely on the master's report, is reversible error.

3. ID.-ADMISSIBILITY OF PAROL EVIDENCE TO PROVE PARTNERSHIP NAME IN DEED.-Parol evidence is admissible to prove that the name of a party, mentioned as grantee in a deed, is a partnership name. /-DeCordova v. Korte, 678.

BURDEN OF PROOF. See EJECTMENT, 3.

CHALLENGE TO ARRAY OF JURY. See CRIMINAL LAW, 19.
CONSTITUTIONAL LAW.

TRIAL BY JURY-SPECIAL VERDICTS.-Held: Sections 1 and 2, of the act of the territorial legislature of 1889, authorizing special verdicts, and declaring that, when they are inconsistent with the general verdict, the former shall control, and the court shall render judgment accordingly, is not in conflict with article 7 of the amendment to the constitution of the United States, providing that the right of trial by jury shall be preserved, and that no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law, such provision applying only to powers exercised by the government of the United States, and not to those of the states and territories.-Walker v. New Mexico & S. Pac. R'y Co., 282.

See, also, CRIMINAL LAW, 2.

VOL. 7 N. M.-44

CONSTRUCTION OF STATUTES. See PROMISSORY NOTE, 1; SELLING LIQUORS ON SUNDAY, 1; WAIVER OF JURY, 2; WILLS.

CONTEMPT OF COURT.

1. WHAT CONSTITUTES-DISREGARD OF ORDER OF COURT BY COUNTY COMMISSIONERS ON ADVICE OF THEIR ATTORNEY.-Where the board of county commissioners of Santa Fe county, knowing that the court had initiated a process restraining them from proceeding to declare forfeited and vacant the office of sheriff and ex-officio collector of said county, disregarded its order, by thereupon declaring said office forfeited and vacant, they were guilty of contempt; and the fact that they acted upon the advice of their attorney, who advised them that they were not bound to take cognizance of the order unless it was duly directed to and served upon them, and that it could not operate to suspend their proceedings against the said sheriff, did not protect them.

2. ID.—BY ATTORNEY, ADVISIng Disobedience of an Order of Court. An attorney of the court, counseling his client to disregard its order upon the technicality that it was not formally promulgated by the clerk of the court, and duly directed, was guilty of contempt, and, as an officer of the court, deserving of the severest reprehension.

3. ID. REFUSAL OF CLERK TO OBEY ORDER OF COURT, FOR FAILURE OF JUSTICE, ISSUING ORDER, TO FILE HIS COMMISSION AND OATH OF OFFICE. Where the clerk of the supreme court refused to obey the order of an associate justice of the court, upon the ground that the justice had not filed his commission and oath of office with him, and that he was not officially advised that the justice had duly qualified, and further refused to obey the order, after being assured by the presiding justice of the court that there was no requirement that the commission and oath of office should be recorded in the clerk's office, and that he would be fully protected in complying with the order, he was guilty of contempt.-In re Territory v. Clancy, 580.

CONTINUANCE. See CRIMINAL Law, 24.

CONTRACTS.

1. 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 guaranteed 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

CONTRACTS. Continued.

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.—Swallow v. Bain, 102.

2. ID. REFUSAL TO GRANT CONTINUANCE-APPEAL.-The appellate court will not review the action of the trial court in refusing to grant a motion for continuance, unless it appears that the court has abused its discretion.

3. ID.

ASSUMPSIT DAMAGES-ADMISSIBILITY OF RECORD IN ANOTHER SUIT. In an action of assumpsit, on two certain written contracts therein set out and designated as "Contract A" and "Contract B," to recover damages sustained by plaintiffs by reason of having been prevented from completing their contracts, it was not error for the trial court to refuse to admit as evidence the record of the proceedings of said court in another case wherein the defendants in error obtained a decree against the plaintiff in error on a bill filed to enforce a mechanic's lien.

4. ID. OBJECTION TO EVIDENCE, NOT TAKEN ON TRIAL-APPEAL.-An objection to evidence, not taken at the trial, will not be heard on appeal.

5. ID. EVIDENCE, COMPETENCY OF.-Where, by the terms of said "Contract B," plaintiffs were to commence the work therein provided for on or about a certain time, and they failed to do so, it was competent for them to show that, though defendant notified them on or about that time that it had arranged for them to begin the work, it failed to make the arrangement; this evidence being offered, not for the purpose of changing the terms of the contract, but to show the reason why plaintiffs did not complete their undertaking.-Texas, S. F. & N. R'y Co. v. Saxton, 302.

COURTS.

DISTRICT COURTS FOR THE COUNTIES JUDICIAL DISTRICT COURTS— JURISDICTION.-The "district courts for the counties," organized under the acts of the territorial legislature pursuant to authority given by section 1874, Revised Statutes of the United States, authorizing the judges of the supreme court of the territory to hold courts within their respective districts to hear all causes, except those in which the United States is a party, and the "judicial district courts," organized under section 1910, Revised Statutes of the United States, providing that each of the district courts in the territory shall have the same jurisdiction in causes arising under the laws of the United States as is vested in the United States circuit and district courts, have concurrent jurisdiction in a cause brought by the receiver of a national bank.-Schofield v. Stephens, 619. CRIMINAL LAW.

1. HOMICIDE-MURDER-EVIDENCE-VERDICT.-On a trial for murder in the first degree, where it appears there was a substantial conflict of evidence, but it also appears there was evidence for the prosecution, which, if true sustains a verdict of guilty, the verdict will not be disturbed on appeal.

CRIMINAL LAW. Continued.

2. ID.

ASSIGNMENT OF ERROR EVIDENCE.-An assignment of error for the admission of improper evidence, not objected to and exception saved in the court below, will not be available in the appellate court. 3. ID.-EVIDENCE-INSTRUCTIONS.-In such case, where defendant testi. fied, in his own behalf, that, when he gave himself up, it was the first time he had heard that he was charged with the murder, which occurred about four months before in the town of Valecito, where he had been a number of times afterward, and four witnesses testified, in rebuttal, that it was a matter of common notoriety in said town, that defendant was charged with the murder, and the court, of its own motion, instructed the jury that the testimony in rebuttal only went to the question of the probability of the defendant having heard that he was charged with the crime, if he was in said town after the killing, and they must not consider it as evidence tending to prove that the defendant killed the deceased, such instruction was not in violation of section 2055. Compiled Laws, providing that the court shall not comment upon the weight of the evidence.

4. ID.-ALIBI-EVIDENCE-INSTRUCTIONS.-It was not error in the court below, in such case, to refuse to instruct the jury that "a bare preponderance of the evidence, when tending to prove an alibi, is sufficient, and that to establish an alibi it is not necessary that the jury should be fully satisfied of its truth, and that the accused is not bound to prove an alibi beyond a reasonable doubt." Whilst, according to a number of authorities, it is not necessary for the defense, in a criminal prosecution, to establish an alibi beyond a reasonable doubt, and some of the earlier decisions go so far as to hold that a preponderance of the evidence is sufficient to maintain such a defense, it is now well settled, by the weight of authority, that, when an alibi is relied on in such case, the burden of proof is on the accused to establish it to the satisfaction of the jury, and, where the court instructs the jury "that if the evidence clearly sustains this defense," such instruction is substantially equivalent to an instruction that the issue must be proven to the satisfaction of the jury.

5. ID.

INSTRUCTIONS, SUFFICIENCY OF.-Where the defendant fails to ask for additional instructions, and the court, in the instructions given, fairly presents the issues to the jury, its failure to instruct on all possible theories of the case is not error, as this court has repeatedly held. Territory v. O'Donnell, 4 N. M. 210; U. S. v. De Amador, 6 N. M. 178.—Trujillo v. Territory, 43.

6. ID.-RAPE-MISCONDUCT OF JURY.-In a prosecution for rape, where the jury had reached a verdict of guilty, one of the jurors came out of the jury room into the court room, and had an officer write out a form of verdict, the substance of which was directed by the juror, who then immediately returned with it into the jury room, without any other conversation between them, or with any other person in the juror's presence,-Held: The transaction was apparently harmless, without prejudice to the defendant's rights, and the verdict ought not to be disturbed. Mattox v. United States, 13 Sup. Ct. Rep. 50, 146 U. S. 140, distinguished.-Territory v. Edie, 183.

7. ID.-SALE OF INTOXICATING LIQUORS AT RETAIL, BY DRUGGIST, WITHOUT LICENSE-INDICTMENT.-In a prosecution, on indictment, against a druggist, for selling intoxicating liquors, at retail, without license, an objection to the indictment, on the ground that it charged more than one offense in one count, was not available on appeal, where no effort was made to have the prosecution elect upon which offense the

defendant should be tried, except a motion to quash, which was properly overruled, the defendant having pleaded, the plea not being withdrawn, and the venue having been changed.

8. ID. SCANDALOUS BRIEF-DISMISSAL OF APPEAL.-Where, on appeal, the appellant's brief contains such an unwarranted attack upon the trial judge, his conduct and rulings, as to amount to a scandalous and impertinent attack upon the judiciary, and the appellate court of which the judge below is a member, the appellate court may, of its own motion, strike such brief from the files, and affirm the judgment appealed from without further investigation.-Tomlinson v. Territory, 195.

9. ID.-RIGHT OF OFFICERS TO CARRY DEADLY WEAPONS.-Section 10, chapter 30, of the act of 1887, providing that sheriffs, constables, and other officers therein named, and their lawfully appointed deputies, may carry weapons in the legal discharge of the duties of their respective offices, when the same may be necessary, but it shall be for the court or the jury to decide from the evidence whether such carrying of weapons was necessary or not, and for an improper carrying or using deadly weapons by an officer, he shall be punished as other persons are punished," does not authorize such officers to carry deadly weapons any more than a private citizen, except when done in the proper or necessary discharge of their official duties; and, when any of such officers are arraigned for such offense, it is "for the court or jury to decide whether such carrying of weapons was necessary or not."-Guyse v. Territory, 228.

10. ID. INDICTMENT FOR FELONIOUS ASSAULT-CONVICTION OF ASSAULT AND BATTERY.-A person indicted for a felonious assault with a pistol may be convicted of a simple assault and battery with such weapon, the former offense necessarily including the latter, which has all the elements of the former offense at common law found therein.

11. ID.-ARGUMENTS OF COUNSEL ABUSE OF PRIVILEGE.-On a prosecution, on indictment, for a felonious assault, where it was in evidence that the defendant, a deputy sheriff, unnecessarily assaulted the prosecuting witness, and called him by an opprobrious name, because he found him at work on land of which defendant claimed the exclusive possession, but it appeared the witness was sent there by an adverse claimant, it was not an abuse of privilege on the part of the prosecuting attorney to say, in addressing the jury, "the defendant was a deputy sheriff, and because he was a deputy sheriff he thought he was a big man, and he had a right to bulldoze, and override, and tyrannize over all the people in the Mimbres valley; and because he was a deputy sheriff he beat up this man without any cause whatever;" and the court properly refused to take these remarks from the consideration of the jury. The trial court has peculiar advantages for observing the propriety or impropriety of the arguments, of counsel, and its discretion, when invoked, should not be interfered with, unless for obvious or probable injury.

12. ID. FELONIOUS ASSAULT-USE OF DEADLY WEAPON-GIST OF OFFENSE. It was not necessary, on such prosecution, to prove the deadly character of the weapon used, section 8, chapter 30, Laws, 1887, expressly declaring a pistol to be a deadly weapon. In all such prosecutions the gist of the offense charged is not the deadly character of the weapon, but the assault to do bodily harm; and the character of the weapon used goes only in aggravation of the offense. -Chacon v. Territory, 241.