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was seeking to disarm defendant, and said rifle was accidently discharged, or if such evidence creates in your mind a reasonable doubt as to whether the defendant unlawfully, deliberately, and of his premeditated malice killed the deceased, or if from any other reason you are not satisified beyond a reasonable doubt of defendant's guilt, you should find the defendant not guilty; but if all the evidence in the case leaves in your minds, after careful consideration of the same, an abiding conviction of defendant's guilt, then you should so find him. Your verdict in this case will either be that the defendant is guilty of murder in the first degree, or that he is not guilty; you being instructed that you are confined to one of these two forms of verdict." Counsel for appellant contend that error intervened to the prejudice of appellant by reason of the last instruction quoted, because the court said, "You are in structed that you are confined to one of these two forms of verdict." There was no error in giving this instruction to the jury. Judge Brinker, in Fewel's Case, supra, after quoting with approval from Alexander's Case, supra, in which Judge Henry said, "He was either guilty of murder in one of the degrees in which an intent to kill is an element, or the killing was justifiable," said, "And the attention of the jury should have been confined to that issue." In Young's Case, 2 N. M. 93, the same instruction complained of here was given and assigned as error, and Chief Justice Prince, in an able opinion, said, in passing on this alleged error: "The statement of the court below that the verdict should be, "Guilty of murder in the first degree," or "Not guilty," was exactly equivalent to the other statement, "There is no evidence before you tending to show that the killing is murder in any other degree than the first;'" and it was held not to be error. It is plain, therefore, that this court has held, in effect, if not in direct words, that it is the duty of the trial court to confine the attention of the jury to the issues involved by the evidence; and the court, at its peril, must instruct on all the law applicable to all the evidence, and then confine the jury to those issues alone. Territory v. Friday (N. M.) 42 Pac. 62. These instructions submitted all the evidence in the case fairly to the jury, and it was either murder in the first degree or it was excusable homicide, and, as to which it was, was the province of the jury to determine; and they found that it was murder in the first degree.

There are many other errors assigned, but it is deemed unnecessary to consider them. The record shows that the defendant had a fair and impartial trial, and there is no reversible error in the record of this case. and for the foregoing reasons the judgment of the court below is affirmed, and it is so ordered.

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Comp. Laws 1884, § 2901, imposing license taxes on 10 different occupations, including the selling of liquor at retail, provided (section 2903) that the assessor should prepare a list of persons liable to pay such taxes, and return it to the county clerk, who should indorse thereon an order for their collection by the collector. Sections 2906, 2907, provided a penalty for failure to pay the tax within a prescribed time, and empowered the collector to distrain for nonpayment. Sections 2909, 2910, allowed the assessor a certain percentage on taxes and licenses assessed, and provided a compensation to the collector of 10 per cent. on all license taxes by him collected. Acts 1891, c. 9, took the business of liquor selling out of the operation of these provisions, designated to whom applications for liquor licenses should be made, declared that no license should issue until payment of the tax, and made it a misdemeanor to sell liquor without a license. Held, that Acts 1895, c. 34, declaring that the collectors "shall collect all taxes and licenses now remaining unpaid, and also that may hereafter be levied and assessed, and shall receive as compensation four per centum of the amount collected," applies only to licenses which continue to be issued under the sections of Comp. Laws 1884 still operative, and not to liquor licenses, which, under Act 1891, cannot "remain unpaid" unless issued in violation of law.

Error to district court, Bernalillo county; before Justice N. C. Collier.

Action by R. B. Meyers, treasurer, against Alejandro Sandoval, to recover moneys collected on dramshop licenses. Judgment forplaintiff, and defendant brings error. Affirmed.

N. B. Field, for plaintiff. G. W. Johnston, for defendant.

BANTZ, J. This is an action to recover from the collector of Bernalillo county certain moneys collected upon dramshop licenses. He claims that he rightfully retained the money as commissions of 4 per cent., and. was authorized so to do under the act of 1895. Under section 2901 of the Compiled Laws of 1884 are enumerated some 10 different occupations upon which license taxes are imposed, and in this number is included that of retail liquor dealers. Section 2903 provides that the assessor shall prepare a list of persons liable to pay the license taxes, and return the same to the county clerk, who is to indorse thereon an order, in the name of the county commissioners, for their collection by the collector. Section 2904 provides for the collection of these licenses by the collector. Section 2906 provides a penalty of 50 per cent. if the license be not paid to him within 20 days, and he was empowered (section 2907) to distrain for nonpayment of the same. assessor (section 2909) was allowed 5 per cent. "on the amount of taxes and licenses assessed and approved by the county commissioners," as soon as the tax list was delivered.

The

to be levied and assessed, were those which continued to be issued under the sections of the Compiled Laws of 1884 yet remaining operative, that is to say, the nine remaining Occupations; and as to all of these licenses the collector's compensation was reduced from 10 to 4 per cent. To hold that the act of 1895 applies, not only to these, but also to the retail liquor licenses specially covered by the act of 1891, would be to hold that the act of 1895 repealed the act of 1891 by implication. In ascertaining a repeal by implication, it is always essential to take into consideration other statutes in pari materia, and all will be allowed to stand which are not in conflict. "If, by fair and reasonable interpretation, acts which are seemingly incompatible or contradictory may be enforced, and made to operate in harmony and without absurdity, both will be upheld, and the later one will not be regarded as repealing the others by construction or intendment. As laws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the legislature, in passing a statute, did not intend to interfere with or abrogate any former law, relating to the same matter, unless the repugnancy between the two is irreconcilable." Suth. St. Const. § 152. Of course, if the legislative intent is clear, there is nothing left for construction, but the use of general words in a statute is not alone to be regarded. If a general statute can be harmonized with one applicable to a particular class or subject, it would be the duty of the court to do so, rather than conclude a repeal by implication. The methods required under the act of 1891, of an application to the clerk by the retail dealer, and the payment by him to the treasurer of the license tax precedently to the issuance of the license, remain untouched by any line or word of the act of 1895, nor is any new or different method provided instead. Nor are the methods provided in the laws of 1884 revived. If these methods provided by the act of 1891 remain unrepealed, and they must be so regarded, then no license can be issued until applied for by the dealer, and not even then until the money is deposited with the treasurer. Repeals so comprehensive cannot arise upon such doubtful and vague language by implication. The judgment will be affirmed.

to the collector. The collector (section 2910) | only ones which could in any sense be said was allowed "ten per centum upon all license taxes collected by him." In the place of the machinery thus provided, the legislature in 1891 amended the law in respect to retail liquor dealers,-one of the occupations enumerated in section 2901,-and provided a very simple and inexpensive method. It required, in substance, the applicant for license to apply for it to the county commissioners if the business was to be conducted outside of a city or town, or to the mayor or town council if the business was to be conducted inside of a city or town. The license was not to be granted before such application, and was not to be issued until the license tax was paid into the hands of the county treasurer by the applicant for the license. It was also made a misdemeanor to sell liquor without such license. Acts 1891, c. 9. It will thus be seen that, as to this single occupation, it ceased to be the duty of the assessor to include those engaged in it in the list of occupations to be prepared by him; it ceased to be the duty of the clerk to include them in the order to the collector; and it ceased to be within the duty or power of the collector to receive such licenses, or to collect them by distress or otherwise. Under the system provided by the act of 1891 in reference to dramshop keepers. there was no longer such a thing as the levy and assessment of such license, and there could be no such thing as a license "remaining unpaid." Strictly speaking, such a license tax as that provided for under the act of 1891 is not levied or assessed. Cooley, Tax'n, p. 258, c. 12. It is a permission granted under the police power. Cooley, Tax'n, p. 396. The similarity in methods of regulations of licenses under the laws of 1884 to the levy and assessment of taxes doubtless suggested the employment of terms similar to the terms in reference to taxes. But, whatever may be the names employed, the essential thing is that, as to all occupations except the one embraced in the act of 1891, the assessor, county clerk, and collector continued to possess the power, and were charged with the duties, prescribed in the sections of the Compiled Laws of 1884 to which we have alluded, and these duties were similar to those performed in reference to ordinary taxes; but, as to the one occupation of retail dramshop keepers, the powers and duties of these officers entirely ceased after the passage of the act of 1891. In 1895 another act was passed, which provides that the collectors shall "collect all taxes and licenses now remaining unpaid, and also that may hereafter be levied and assessed and shall receive as compensation for their services four per centum of the amount collected." Acts 1895, c. 34. The general terms of the power of the collector under the act of 1895 were, we think, qualified and limited by the words "remaining unpaid," and "levied and assessed." The only licenses which could have remained unpaid, unless issued in violation of the law, and the

HAMILTON and LAUGHLIN, JJ., concur.

(8 N. M. 613)

HOLMES v. TYLER et al
(Supreme Court of New Mexico. Sept. 1,
1896.)

PLEADING-DEFECTIVE SIMILITER-WAIVER OF OB-
JECTIONS-HUSBAND AND WIFE-LIABILITY OF
WIFE ON CONTRACTS-PRACTICE-DISMISSAL AS
TO ONE JOINT DEFENDANT AFTER VERDICT.

1. That a similiter to a plea of the general issue is not signed by plaintiff's counsel is not

1130

45 PACIFIC REPORTER.

cause for reversal where defendant, after moving to dismiss for failure of plaintiff to join issue on such plea, submits to a trial on the merits without objecting to the want of a properly signed similiter.

2. Where a declaration in assumpsit against husband and wife jointly does not allege that the goods sold were necessaries, a refusal to instruct that under the laws of the territory (Comp. Laws 1884, §§ 1087-1089) a married woman is not liable for the debts of her husband, and that before the jury can render a verdict against the wife they must find that she was the sole contractor, is reversible error.

3. Comp. Laws 1884, § 1889, providing that all contracts which by the common law are joint shall be construed joint and several, and that when more than one party is joined as defendant in a suit on a joint obligation such suit may be prosecuted, and judgment rendered against any one or more of the defendants, does not authorize the court, after verdict is rendered against a husband and wife jointly, in a suit on a joint contract, to grant a new trial as to the husband, and then allow a dismissal as to him, and enter judgment against the wife alone.

4. Comp. Laws 1884, § 1911, providing that at any time before verdict a party may amend by leave of court, does not authorize an amendment by dismissal after verdict.

Error to district court, Valencia county; before Justice N. C. Collier.

Assumpsit by John W. Tyler and F. C. Bartlett, co-partners as Bartlett & Tyler, against Nellie Holmes and J. H. Holmes. Judgment was entered against defendant Nellie Holmes alone, and she brings error. Reversed.

This was an action of assumpsit, brought by the defendants in error against the plaintiff in error, Nellie Holmes, and J. H. Holmes, her husband, in the district court of Socorro county, to recover about $1,100 for goods, wares, and merchandise furnished, and for rent of a certain hotel situated at Magdalena, in Socorro county. The action was begun by attachment, and was afterwards removed on change of venue to Valencia counThe decty, in the Second judicial district. laration charges that: "For that whereas, the said defendants, on, to wit, the 3d day of July, 1893, at the town of Magdalena, in the county of Socorro, and territory of New Mexico, was justly indebted to the said plaintiffs in the sum of eleven hundred and fortyeight dollars and eighty-three cents, lawful money of the United States, for work and labor, care and diligence, of the said plaintiffs by the said plaintiffs before that time done, performed, and bestowed in and about the business of the said defendants and for the said defendants, and at their special instance and request," and then follow the usual and ordinary common counts stated in a common-law declaration; but there is no allegation that Nellie Holmes contracted the obligation sued on with the consent of her husband, nor is there any allegation that the The were necessaries. supplies furnished defendant filed separate pleas of the general issue. When the case was called for trial the defendants severally moved the court to dismiss, because of the failure of the plain

re

tiffs to join issue upon the plea of general
issue. This motion was denied, and defend-
ants excepted. At the foot of the plea filed
by J. H. Holmes are the words, "and the
plaintiff doth the like," but this similiter was
not signed by counsel for plaintiffs. At the
close of the testimony the defendants request-
ed certain instructions, which the court
fused to give, and exceptions were duly noted.
The court instructed the jury to return a ver-
dict for the sum shown to be due as against
the defendant J. H. Holmes, and submitted
the case as to both defendants to the jury,
and the jury returned the following verdict.
to wit: "We, the jury, find for the plaintiff's
against both defendants in the sum of $1,-
144.88." Thereupon defendants, by their
counsel, filed their joint motion for a new
trial, and the court sustained the motion as
to defendant J. H. Holmes, and denied it as
to defendant Nellie Holmes, and the plaintiffs
then dismissed the case as to defendant J. H
Holmes; and, after denying motions in arrest
of judgment, and for a venire de novo, judg-
ment was entered against defendant Nellie
Holmes for the sum found by the jury; to all
of which defendant duly excepted.

Neill B. Field, for plaintiff in error.
ers & Dobson, for defendants in error.

Child

De

LAUGHLIN, J. (after stating the facts).
The first assignment for reversal by plaintiff
in error is: "Because the court erred in over-
ruling the motion of defendants to dismiss
the cause for failure on the part of plain-
tiffs to join issue upon the pleas of the gen-
eral issue." This contention on the part of
plaintiff in error cannot be maintained.
fendants below and plaintiff in error here
did not refuse to go to trial, but moved to
dismiss the case, and the court properly de-
Then the trial was had as
nied the motion.
There was
if the similiter had been filed.
motion made to strike out the similiter for
"The excep
want of signature of counsel.
tion is without foundation, for it has not ap-
peared that the defendant objected to going
to trial without a formal joinder of issue.
As he took the chance of a verdict then, he
Rabe v. Heslip, 4
shall not object now."

Pa. St. 139. In another case in Pennsylva-
nia, decided as early as 1827, the case had
been tried in the court below without issue
having been joined. The error assigned was
that there had been no replication filed be-
The su-
fore the trial in the court below.
preme court, in dismissing the case, says:
"We will not permit an exception like this.
even though there shall have been no issue
at all. It would be a scandal to the adminis-
tration of justice if we were longer to hear
trial
a
on the merits."
objections after
Thompson v. Cross, 16 Serg. & R. 349. “At
the time these decisions were rendered in
Pennsylvania, the same system of pleading
existed then as is practiced in this territory
Waldez v. Archuleta, 3 N. M. 196, 5
now."

Pac. 327; Herlow v. Orman, 3 N. M. 471, 6 Pac. 935; Railroad Co. v. Shalley (Fla.) 14 South. 890; Railroad Co. v. Ransom, Id. 892; Livingston v. Anderson (Fla.) 11 South. 270.

The ninth error assigned is that: "Because the court erred in refusing to instruct the jury, at the request of the defendant Nellie Holmes, as follows: "The court instructs the jury that by the laws of the territory a married woman is not responsible for the debts of her husband, and, before they can find the issues against the defendant Nellie Holmes, they must find that she was the sole contractor, and that the goods were sold to her, and not her husband.'" This instruction, as requested, fairly states the law, and the refusal to give it was error. Especially in view of the fact that it was not alleged in the declaration that the goods sold were necessaries. The statutes on that subject are as follows, to wit: Section 1087, Comp. Laws 18 4: “All property, real, personal and mixed, and choses in action, owned by any married won an, at the time of her marriage, shall continue to be her separate property notwithstanding such marriage; and any married woman may, during coverture, receive, take, hold, use and enjoy property of any and every description, and all avails of her industry, free from any liability of her husband, on account of his debts, as fully as if she was unmarried." Section 1088, Id.: "A married woman shall be bound by her contracts, and responsible for torts committed by her, and her property shall be liable for her debts and torts, to the same extent as if she were unmarried. Any married woman shall be capable of making any contract with the consent of her husband, either by parol or under seal, which she might make if unmarried, and shall be bound thereby." Section 1089, Id.: "No married woman shall be liable for any debts of her husband, nor shall any married man be liable for any debts or contracts of his wife, entered into either before or during coverture, except for necessaries furnished to the wife after marriage, where he would be liable at common law, but each shall be liable for necessaries furnished to the husband or family of the husband and wife." The sections above quoted were not repealed or modified by the enactment of chapter 90, Laws 1889, p. 208. That act was intended for the purpose expressed in the enacting clause, "An act to amend the laws relative to the estates of deceased persons." And it will be seen that every section of the Compiled Laws of 1884, and the act of the legislature of 1887, and subjects which were intended to be repealed or amended, were specially designated, and with great care each section and act of the legislature is named by number; and, besides, the conflict, if any, is insufficient to sustain a repeal by implication. No other instructions were given which cured this error. The instructions given were as to the fact of the proprietor

ship of the hotel, but nowhere do the instructions state that a married woman is not liable for the debts of her husband, except for necessaries; and it was reversible error not to give the instruction asked. The jury should have been instructed fully as to the property rights of defendant Nellie Holmes under the laws of this territory.

The eleventh assignment is: "Because the court erred in granting a new trial as to the defendant J. H. Holmes, and denying the same as to defendant Nellie Holmes." The defendants, J. II. Holmes and Nellie Holmes, were sued on a joint contract, and joint promise for goods, wares, and merchandise used in operating and running the Magdalena Hotel, and for rent for same. The verdict was against both of them jointly. Then the verdict was set aside as to J. H. Holmes, and the case against him was afterwards dismissed by plaintiffs below, and the judgment entered against the defendant Nellie Holmes. The verdict was an entirety, and the judgment should have been entered against both defendants, or a new trial granted as to both defendants; and it was error to set aside the verdict as to one and enter judgment as to the other defendant. Clearly, the judgment did not follow the verdict.

The defendants in error contend that a single judgment may be entered in the case against the defendant as to whom the court holds the verdict is sustained. This was a suit against husband and wife, alleging a contract made by both of them, just as if they had been any other two persons, not husband and wife. The statutes on this subject, referred to by defendants in error, are, to wit (section 1889, Comp. Laws 1884): "All contracts which by the common law are joint only, shall be held and construed to be joint and several; and in all cases of joint obligations or assumptions by partners and others, suit may be brought and prosecuted against any one or more of the parties liable thereon, and where more than one person is joined as defendant in any such suit, such suit may be prosecuted and judgment rendered against any one or more of such defendants." Section 1845, Id.: "All contracts, which by the common law are joint, shall be construed to be joint and several." These statutes do not apply to the objections raised here. It is not contended that it was not a joint and several promise as against both defendants, as alleged in the declaration, but the contention of plaintiff in error is that the verdict was joint as against both, and that the court erred in setting aside the verdict as to one defendant, and not as to both. But defendants in error contend that the court had a right to do this after verdict, and to allow them to amend by dismissing after the motion for a new trial was granted as to defendant J. H. Holmes; and cites in support of that proposition the following statute (section 1911): "Each party by leave of the court, shall have leave to

amend, upon such terms as the court may think proper, at any time before verdict, judgment or decree." It will readily be seen here that leave to so amend is granted "at any time before verdict." This does not mean that parties may amend by the dismissal after verdict. The statute authorizing dismissals provides as follows (section 1859): "Any cause pending in any court of this territory, may be dismissed by the plaintiff in said cause, at his costs, at any time before the same is submitted to the jury in causes tried by the jury, or before judgment has been rendered in causes tried by the court." But defendants in error contend that, because the obligation was joint and several, and each of defendants below was liable, it was not error in the court to grant a new trial as to one defendant, and allow a dismissal as to him, and enter a judgment against the other. And that, because the defendants were severally liable, the plaintiffs had a right to dismiss as to one, and have the judgment entered against the other defendant. If that can be maintained, then the court is permitted to change the verdict found by the jury, and to decide which of two joint defendants who are liable jointly and severally shall respond in damages assessed by the jury; because, the trial having been had, and verdict returned, it may be pleaded in bar to any subsequent action against the defendant in whose favor the new trial was sustained, and the other defendant against whom judgment is entered would have no recourse for the recovery from his co-defendant for his pro rata of the indebtedness.

Defendants in error also contend that, because it was not necessary to join the defendants, this is or may be treated as surplusage, and that it was not error to grant the new trial as to one, and then dismiss as to him, and take judgment as to the other. This might have been done at any time before the verdict, as provided by the statutes, supra, but to do it after verdict is simply to deprive the defendant against whom the judgment is entered of any remedy for future recovery against the other joint and several debtor. The statute in contravention of the common law making all contracts which are by the common law joint only joint and several, and permitting plaintiff to have and prosecute his suit against either, is not intended to be so used and construed as to cut off and bar any rights or remedies which the party against whom a judgment may be entered may have against his joint and several co-obligors, and the statute should be so construed as to protect both parties litigant. Plaintiffs below could have dismissed as to either defendant at any time before verdict, and the other party against whom the judgment was entered could and would have had his remedy against the co-obligor; but after verdict such remedy is lost. For the reasons above given,

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PARTNERSHIP

WHAT CONSTITUTES ACTIONS AT
LAW BETWEEN PARTNERS-SETTLE-
MENT AND ACCOUNTING.

1. A contract whereby one person leases a mill to another on the latter's agreement to conduct the business, hire and pay employés, keep the mill in repair, furnish accounts of receipts and expenditures, and pay to the lessor one-half the net receipts, the flour, etc., on hand at the determination of the contract to be the property of the lessor, who is to pay the lessee one-half its value, creates a partnership.

2. One partner cannot sue his co-partner at law to recover an amount alleged to be due from defendant by reason of partnership transactions, until a final settlement has been effected, showing the amount due; the only remedy prior to such settlement being a suit in equity for a dissolution of the firm and for an accounting.

3. Such settlement is not binding without the express or implied approval of all the partners. 4. In an action by one who had leased a mill from defendant under a contract of partnership terminable by either party on two weeks' notice in writing, to recover an amount alleged to be due by reason of partnership transac tions, it appeared that plaintiff, who had sole charge of the firm business, furnished defendant with weekly statements, and paid to the latter her share of the net profits; that defendant did not give receipts for these statements, but merely accepted them without approval or disapproval at the time they were received; that about six weeks after the business began a disagreement arose between the parties, growing out of defendant's belief that plaintiff was not keeping accurate accounts, such dispute resulting in plaintiff giving written notice that he would give up the mill, which he did two weeks later; that at the time he surrendered the mill plaintiff claimed there was money due him, but that defendant denied any indebtedness to him, and ordered him out of the mill. Held insufficient to show any settlement of accounts, and that the action could not, therefore, be maintained. Bantz, J., dissenting.

Error to district court, Bernalillo county; before Justice N. C. Collier.

Assumpsit by Berthold Renner against Mary J. Willey. There was a judgment for Replaintiff, and defendant brings error.

versed.

This is an action of assumpsit brought in the district court of the county of Bernalillo by the defendant in error against the plaintiff in error, and is based upon a contract containing, among other things, the following: "Agreement made this 19th day of June, 1889, between Mary J. Willey, of the first part, and B. Renner, of the second part, both of Albuquerque, New Mexico. The party of the first

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