7th sections of the same act require the guardian, upon her attaining that age, to deliver her property to her, and gives to her receipt or release, executed before the orphans' court, the same effect precisely as if she were of the full age of twenty-one years. There can be no doubt, therefore, that a female at the age of eighteen years is entitled to receive her property of her guardian, and may release and acquit him in respect thereof; but still, it is said, her legal minority does not cease until she is twenty-one years of age, and it is very clear, I think, that for many purposes it does not. We are, however, construing a will, and the question is, what did the testator intend by the term lawful age? Did he not mean that age at which his female grandchildren would be entitled by law to receive their estates from their guardian? My opinion is he did so mean, and, if he did,

of course his intention must prevail, although for many purposes the legal minority of the legatee does not terminate until she attains the full age of twenty-one years." The chancellor continues: "The language of the will is that the trustees shall, out of the funds provided for the purpose, pay to each of the grandchildren, born and to be born, the sum of one thousand dollars, if they live to attain lawful age. Lawful age for what? Why, lawful age to receive; that age at which they are, according to our legislative enactment, entitled to demand and receive from their guardians all the property, and to give valid releases therefor." It is manifest that the conclusion reached is based upon the peculiar statutory enactments of that state. Under them a girl of 18 years has a right to demand her property of its legal custodian, and to execute valid releases therefor. Under our laws she has no such right. The statutory declaration that "the guardianship over men and women shall cease with their marriage" cannot, by the most strained construction, receive any such interpretation. Release from the legal guardianship of one's person does not imply the duty of a trustee to surrender, or of a married female minor to demand from such trus- tee, a legacy intrusted to his care and control, for delivery to beneficiaries as soon as they severally attain lawful age. If Lola has such right, why not her brother, Eduardo, if he marry during his minority? If such were the testator's intention, why did he not so express it in his will, by adding after the words "of lawful age" "or marry?" Plainly he meant what he wrote, and he wrote exactly what he intended. That intention we must respect. No legal enactments existed in this territory that could warrant the testator in assuming, as the Mary

land testator was warranted in assuming, that the legatee could legally receive or receipt for the trust fund before arriving at the full age of 21 years. Should she die before attaining legal age, her brother is, by the express terms of the will, entitled to the residue of the entire legacy. That contingency is possible. We cannot adopt such construction of the plain, unequivocal language of the will as would defeat, in such event, the provident and generous intentions of the testator.

The question of guardianship does not properly arise under this will. The estate is granted to the two children, share and share alike, to be held in trust by the executor for their support and education during minority; one-half thereof to be delivered to her and him "as and when" each attains full legal age, and, if either die before "coming of age," the survivor to take his or her share. It is as executor, and not as

guardian, that Miller received the trust. His qualification as guardian, and erroneously holding or dealing with the trust fund as such, cannot change the terms of the will under which he received it. The last clause of that instrument indicates the nature of his office, and reads as follows: "I hereby appoint Rudolph Habaland, &c., and John Miller, &c., executors of this will, and request that the probate court allow them to qualify without giving bond or security. If either one shall not qualify, the other may act alone." Habaland did not qualify. The reading of this, in connection with the granting clause before cited, shows that this appellant, by the plain terms of the will, holds the estate in trust as executor, and not as guardian. We do not express any opinion as to what our decision would be were this appellant a mere guardian, holding, as such, the property of his ward after marriage. We simply determine the rights and duties of appellant and appellee as fixed by the will. The rule adopted in the McKim Case is not in conflict with these views. By the laws of Maryland a female arrives at "legal age," for certain purposes, when 18 years. One of such purposes is the reception of a legacy. The court in that case accordingly held that where a legacy was given to a female child, if she lived to attain "lawful age," such female was entitled to receive the same as soon as she attained the age of 18 years. There is no such law in this territory. Hence the judgment of the court below, so far as it requires appellant to pay over to appellee her moiety of the trust fund, or to disturb him in the due execution of such trust, is reversed.

FALL and SEEDS, JJ., concur. FREEMAN, J., dissents.

Act N. M. T. 1889, §§ 1, 2, authorizing special verdicts, and declaring that when the special verdicts are inconsistent with the general verdict the former shall control, is not in conflict with Const. Amend. U. S. art. 7, which provides that the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re examined in any court of the United States than according to the rules of the common law, since such provision applies to powers exercised by the government of the United States, and not to those of states and territories.

Error to district court, Socorro county; A. A. Freeman, Judge.

Action by Margaret E. Walker against the New Mexico & Southern Pacific Railroad Company to recover damages for injury to real property caused by defendant's railroad embankment. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Neill B. Field and James G. Fitch, for plaintiff in error. Henry L. Waldo and W. B. Childers, for defendant in error.

FALL, J. Plaintiff in error sued defendant for damages for injury to real property caused by defendant's railroad embankment stopping or obstructing natural or artificial channels through which water was accustomed to flow, thereby overflowing and damaging plaintiff's land. General verdict was for plaintiff, but, upon answers to special questions propounded, the court set aside the verdict, and entered judgment for defendant. Two errors are assigned: (1) That the court erred in entering judgment in favor of the defendant on the verdict of the jury; (2) that the court erred in refusing to enter judgment in favor of plaintiff in error.

If the act of the territorial legislature of 1889 is constitutional, then we can find no error in the action of the court in setting aside the general verdict, and entering judgment upon the special findings. But it is contended strongly that the act referred to is unconstitutional, in that it is in conflict with article 7 of the amendments to the constitution of the United States.' The act of 1889 is as follows: "Section 1. In all trials by jury in the district courts, the court shall, at the request of the parties, or either of them, or their counsel, in addition to the general verdict, direct the jury to find upon

1Amendments to constitution of the United States, article 7, provides as follows: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law."

particular questions of fact to be stated in writing by the party or parties requesting the same. Sec. 2. When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly." Mr. Justice Miller, in his lectures on Constitutional Law, (page 493,) speaking of article 7 of the amendments, says: "This article of the amendments to the constitution * * * applies to the powers exercised by the government of the United States, and not to those of the states;" and, as further stated by the same eminent writer, this has been repeatedly decided. Livingston v. Moore, 7 Pet. 469; The Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532; Fox v. Ohio, 5 How. 434. Our territorial courts are not constitutional courts, "in which the judicial power conferred by the constitution or the general government can be deposited." Miller, Const. U. S. p. 369; McAllister v. U. S., 141 U. S. 174, 11 Sup. Ct. Rep. 949; Insurance Co. v. Canter, 1 Pet. 511-546; Clinton v. Englebrecht, 13 Wall. 434. The powers of the territorial legislatures are nearly as extensive as those exercised by state legislatures. Hornbuckle v. Toombs, 18 Wall. 654. And, indeed, if this article prohibits such legislation by a territory, the prohibition applies equally to state legislation. We are clearly of the opinion that the act of 1889 was passed by the legislature in the legal and constitutional exercise of its powers, and is with us the "law of the land.” It might be well to add that we think the act should be so construed as to enable the court, in its discretion, to refuse to submit questions not regarded as material, and, further, to refuse to set aside a verdict if it is possible to reconcile the special findings with the same. It should also refuse to set aside the general verdict unless the special findings upon all the material facts in issue, construed together, cannot be reconciled with it. The judgment below is affirmed.

O'BRIEN, C. J., and LEE and SEEDS, JJ., concur.

(7 N. M. 127)

CUNNINGHAM v. CONKLIN. CONKLIN v. CUNNINGHAM. (Supreme Court of New Mexico. Aug. 7, 1893.) APPEALS-TO WHAT TERM RETURNABLE STRIKING CASE FROM CALENDAR.

Comp. Laws, § 2189, making all appeals taken less than 30 days before the next term of the supreme court returnable to the next succeeding term, is not affected by Act Feb. 24, 1887, as amended by Act Jan. 5, 1889, making it the duty of the clerk, not less than 5 or more than 10 days before the meeting of the court, to print a calendar of the causes pending; and a case placed on such calendar, when appealed less than the statutory 30 days before the term, will be stricken therefrom on motion.

Appeals from district court, Santa Fe county; Edward P. Seeds, Judge.

Contest between William P. Cunningham and Charles M. Conklin for an office. Motion to strike cases from supreme court calendar of current term. Motion sustained.

T. B. Catron and Edward L. Bartlett, for appellant. H. L. Warren, for appellee.

The

PER CURIAM. In these cases, which are consolidated for the purposes of the present consideration, appellant has filed a motion to advance, and appellee a motion to strike them from the calendar of the present term. Section 2189 of the Compiled Laws makes all appeals taken less than 30 days before the next term of the supreme court returnable to the next succeeding term. The appeals in these cases were taken less than 30 days before this term, and were not, therefore, returnable to this term, and hence have been improperly placed on the trial calendar, and must therefore be stricken therefrom. This, of course, disposes of the appellant's motion to advance them. act approved February 24, 1887, as amended by the act of January 5, 1889, entitled "An act with reference to practice in the supreme court," did not undertake to change the return day of appeals taken to this court. It made it the duty of the clerk, not less than 5 nor more than 10 days before the meeting of the court, to print a calendar of the causes pending in said court. We hold that these cases were not returnable to this term of the court, and were not, therefore, pending, within the meaning of this act; and the fact that the papers were brought to this court more than five days be fore the beginning of the term, and that the cases were placed by the clerk on the calendar, did not constitute them "cases pending," within the meaning of the act. They had been brought to this court, and for some purposes may be considered as pending, as, for instance, for the purposes of these conflicting motions, but they are not pending for trial, for it is impossible to treat a case as pending for final adjudication at a term of court prior to the return term. We have not overlooked the importance to be attached to the early disposition of a case involving title to public office, but the remedy lies with the legislature, and not with this court. The appellee's motion is tained, and the causes will be stricken from the trial docket.

(7 N. M. 128)

sus

HUNING v. CHAVEZ. (Supreme Court of New Mexico. Aug. 14, 1893.)

TRESPASS DE BONIS ASPORTATIS-EVIDENCE-JUSTIFICATION-MITIGATION OF DAMAGES.

1. In an action for driving to town sheep which had become mingled with defendant's, the latter may show that he was justified in so driving the sheep to town, in order to separate them before shearing his own.

2. In such an action, defendant may show that plaintiff was only special owner of the sheep, and that he, (defendant,) after driving them off, returned them to their general owner, and that plaintiff, though knowing that the sheep were driven to town, went there without attempting to regain their possession.

3. Defendant may give evidence in mitigation of damages, under the general issue. Seeds, J., dissenting.

Error to district court, Socorro county; A. A. Freeman, Judge.

Action by Nicodemus Chavez against Luis Huning. Judgment for plaintiff, and defendant brings error. Reversed.

Warren, Fergusson & Bruner, for plaintiff in error. Neill B. Field, for defendant in

error.

FALL, J. Plaintiff below, defendant here, by his declaration, seeks to recover for the wrongful taking of 3,100 head of sheep by defendant, and asks damages in the sum of $6,000. Defendant below, plaintiff here, pleads general issue, and also special pleas of justification and license, upon which pleas plaintiff joined issue. Verdict for plaintiff. Damages, $4,589.50, being in full for all the sheep at $1.25 per head. Plaintiff in error assigns many errors, but relies upon failure of court to instruct upon the question of mitigation of damages upon evidence under the general issue, as well as refusal to instruct upon the special pleas, and as to special interest of defendant in error, and in mitigation of damages under special pleas.

Evidence was offered tending to show license, as well as justification; it being indeed admitted that the sheep of plaintiff and defendant had become intermingled, and that defendant drove all the sheep to Los Lunas, to separate same, and shear his own; that plaintiff was a special owner, Charles W. Lewis being general owner; that plaintiff was notified of the driving, went to Los Lunas, but did not attempt to regain his sheep, and refused to have anything to do with them; but that Lewis, the general owner, did demand, through his brother and agent, Jose Lewis, the return of the sheep, and received 1,274 head and some lambs, which he credited to the special owner, defendant here. The plea of justification and of license, as pleaded specially, were proper pleas, and, evidence having been given to sustain these pleas, the matter should have been submitted to the jury, under proper instructions. 1 Suth. Dam. 244 et seq.; Dow v. Humbert, 91 U. S. 294; 1 Suth. 255; 2 Hil. Torts, 83, 84, 86; 1 Add. Torts, §§ 529, 531, 536.

Evidence in mitigation of damages could not only be given under the special pleas, but also under the general issue, and is a proper subject for consideration for the jury; and, it having been shown that the sheep had become intermingled, it was proper for the jury to say, upon the evidence, whether the defendant was justified in driving the sheep to Los Lunas to separate them, and also as

to whether the plaintiff used proper diligence in reducing the amount of damages as much as possible. Certainly, this evidence was proper in mitigation of damages. It appears to be a harsh rule that would require that defendant, finding his property commingled with that of another, and driving it all off, admitting the trespass, should not be allowed, under instructions, the benefit of evidence showing want of malice on his part, negligence on part of plaintiff, necessity for his action, and even custom; and when such evidence is given, as was done in this case, the jury should have been allowed to consider it in mitigation. This proposition appears to us to be unquestionable, and needs no authority except good sense and common justice to sustain it. In argument, counsel for plaintiff claims that defendant could not so mitigate damages because he had no right to seize his own sheep, they being in the possession of the special owner, Padilla. This contention is not borne out by the evidence, for though, under objection of plaintiff, defendant was not allowed to prove his contract with the special owner, he does swear that under that contract he had a right to drive his sheep, and this is uncontradicted. Under the instructions given, and by refusal of those asked, the jury were not allowed to take into consideration the fact that 1,274 head of the sheep taken by defendant, in which plaintiff had special property, while Lewis was general owner, were turned over by defendant to Lewis, and by him credited to plaintiff on his account. There is a difference of opinion between plaintiff and Jose Lewis, agent for the general owner, as to whether, at the time of the trespass, the sheep were all to have been turned over to Lewis. But in 2 Sedg. Dam. 526, note (a), it is said: "The fact that property taken by a trespasser has been appropriated to the owner's use by his consent, express or implied, goes in mitigation." See, also, 1 Suth. Dam. 210.

It is claimed that plaintiff was not obliged to go to Los Lunas after his sheep, but that it was the duty of defendant to return them to the place from whence taken. This may be true. It may be that defendant should he compelled to pay for the additional damage done by his failure to so return the sheep; but the sheep having commingled, it being necessary to separate them, does not the fact that the plaintiff failed to take any steps whatsoever to regain the property himself, but calmly waited until the general owner made a demand upon defendant, and took the sheep, show an implied assent, at least, to the taking by Lewis? In Montgomery v. Wilson, 48 Vt. 616, it was held that where defendants had driven off plaintiff's cattle, and, while in their possession, same were

seized by attachment, defendants were only responsible for damages up to the time of such seizure, although the attaching officer may not have afterwards proceeded legally with the property. In trespass de bonis asportatis, the defendant may prove in mitigation of damages that the goods did not belong to the plaintiff, and that they have gone to the use of the owner, although, in taking them, the defendant acted without authority. Squire v. Hollenbeck, 9 Pick. 551. Also, City of Lowell v. Parker, 10 Metc. (Mass.) 309; Kaley v. Shed, Id. 317. This doctrine is recognized and affirmed in Criner v. Pike, 2 Head, 401. The true rule would appear to be that where a stranger to the title seeks, in mitigation of damages, to show that the owner has the property, he must also show that he acted in good faith, or at least that he was not in collusion with the owner to forcibly deprive the person in possession of the property. Certainly, it should be for the jury to decide whether he has shown this; and, if so, then his defense should be considered in mitigation, particularly when it is shown, as in this case, that the trespasser was seeking to recover his Own property upon a common grazing ground, and that the trespass was necessarily committed in so recovering his own. Of course, the aggravation or increase of damages by the taking of the sheep to Los Lunas, instead of Pajarito or Isleta, was for the jury to consider; but we cannot agree with the defendant in error that the instructions given on his behalf, (Nos. 3 and 5,) and of the court's motion, (Nos. 2, 3, and 4,) embodied the law, as applicable to this cause. The court erred in giving the instructions named above, and further erred in refusing to give the instructions asked by the defendant. It is admitted by counsel that the record here showing instruction No. 5 given of court's motion, identical with No. 2 asked by defendant below, is erroneous, and that said instruction was not given, but refused. Defendant in error contends that the instructions given by the court were not excepted to as a whole. The record shows that each was excepted to. Defendant in error further contends that seriatim exceptions should have been taken to the refusal to give instructions asked by the defendant. The law of this territory requires, that the court should instruct the jury as to all the law of the case; but it is not necessary for us to go further, as the instructions asked and refused embodied the law, as we find it applicable to the case before us, as far as they went. The judgment must be reversed, and cause remanded.

O'BRIEN, C. J., and LEE, J., concur. SEEDS, J., dissents.

(7 N. M. 183)

TERRITORY v. EDIE. (Supreme Court of New Mexico. Aug. 17, 1893.)

CRIMINAL LAW-MISCONDUCT OF JURY.

In a criminal case it appeared that, after the jury had arrived at a verdict of guilty, one of the jurors went into another room, and had an officer write out the verdict, directed, in substance, by the juror, who returned with it to the jury room. Held, that the verdict should not be disturbed, the harmlessness of the transaction to defendant's rights being apparent. Seeds and Fall, JJ., dissenting. 30 Pac. Rep. 851, affirmed. Mattox v. U. S., 13 Sup. Ct. Rep. 50, 146 U. S. 140, distinguished.

On rehearing.

O'BRIEN, C. J. At the last term the defendant moved for and obtained a rehearing in this cause. He then insisted, as he now insists, that the rule adopted by us in deciding it, as to the effect of the misconduct of the trial jury, (see opinion 30 Pac. Rep. 851,) is at variance with the doctrine enunciated in the federal supreme court in the case of Mattox v. U. S., 13 Sup. Ct. Rep. 50, 146 U. S. 140. It is, perhaps, at least in a partial sense, to be regretted that this judgment must be affirmed. The evidence, we are free to admit, is not overwhelmingly convincing. But it is legally sufficient to warrant the verdict. In such case we are not at liberty to interfere with the finding of the jury. From the very nature of the crime, it would be unreasonable to expect superabundant evidence of guilt. Men of loose morals, intent alike upon the gratification of their inordinate desires and the ruin of female purity, almost invariably seek seclusion as most opportune for the gratification of their reckless passions. The victim of this defendant's lust was almost a child, a stranger in a strange city, without a friend, except a father, to vindicate her honor. The jury heard the narrative of the transaction, as detailed by her, as well as by the defendant. Her version was believed. His, at least so far as it was inconsistent with hers, was discredited. We have as little reason as we have right to criticise the result. The testimony of the defendant, whether believed by the jury or not, as disclosed by the record, exhibits him as a man of low instincts and depraved morals. It shows that he had planned the girl's defilement, and used the most insidious means for its accomplishment. If not, why did he invite the girl, almost a stranger to him, into his buggy? why did he keep her out all the afternoon? why did he dose her with wine? why did he not return before dark? why did he take her to his private room? why did he lock the door, and detain her there?-if he did not intend, when he first saw her on the sidewalk, to make her the victim of his lust? He was a man of mature years. She was a comparative child. In a case of this character, nothing short of error prejudicial to the defendant's rights would

justify us in setting aside the verdict of his guilt, and awarding him a new trial. At the time this case was first heard the opinion of the supreme court in the Mattox Case had not been published, and the opinion of this court was prepared in accordance with what we believed to be the prevailing doctrine in this country. The defendant in the Mattox Case, charged with the murder of one John Mullen in a part of the Indian Territory embraced within the judicial district of the state of Kansas, was tried and convicted in the district court of the United States at Wichita. Sentence of death was pronounced upon the accused, and he took the case to the supreme court of the United States upon a writ of error, where the judgment was reversed upon various alleged grounds of error. In that case the defendant, in support of his motion for a new trial, offered in the court below the affidavits of two of the trial jurors to the effect that the bailiff who had charge of the jury, after the cause had been heard and submitted, and while they were deliber ating upon their verdict, in the presence and hearing of the jurors, or a part of them, speaking of the case said: "After you fellows get through with this case, it will be tried again down there. Thompson has poison in a bottle that them fellows tried to give him." And at another time, in the presence and hearing of the jury, or a part of them, referring to the defendant, Clyde Mattox, he said, "This is the third fellow he has killed." The affidavit of another juror to the same effect, in respect of the remark of the bailiff as to Thompson, was also offered, and in addition the affidavits of eight of the jurors, including the three just mentioned, "that after said cause had been submitted to the jury, and while the jury was deliberating of their verdict, and before they had agreed upon a verdict in the case, a certain newspaper, printed and published in the city of Wichita, Kansas, known as the Wichita Daily Eagle, of the date of Thursday morning, October 8, 1891, was introduced into the jury room; that said paper contained a comment upon the case under consideration by said jury, and that said comment upon said case so under consideration by said jury was read to the jury, in their presence and hearing; that the comment so read to said jury is found upon the fifth page of said paper, and in the third column of said page, and is as follows: "The Mattox Case. The Jury Retired at Noon, Yesterday, and is Still Out. The destiny of Clyde Mattox is now in the hands of the twelve citizens of Kansas comprising the jury in this case. If he is not found guilty of murder, he is a lucky man, for the evidence against him was very strong, or at least appeared to be to an outsider. The case was given to the jury at noon yesterday, and it was expected that their deliberations would not last an hour before 'they would return a verdict," " etc. The bill of exceptions states