Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1910-06-10
NO HATCHERY
FOR SANTA FE
District Court Decided Test
Case in Favor of Terri
torial Auditor
JUDGE IS KEPT VERY BUSY
VIII Leave Tomorrow With
Officials for Rio Arriba
County.

! In the district court for Santa Fe
county, Judge John R. McFie today
signed a decree of divorce in the case
of F. R. Boutwell, of this city vs..
Lydia R. Rothweli of Pittsburg, Pa.
who refused to follow her husband to
New Mexico.
! III the case of William Kinderman
VS.. Amarante Garcia in the district
court for Rio Arriba county, involy
ing a contract for the purchase of
sheep, Judge John r. McFie handed
down an opinion today giving judg-
ment in favor OF the defendant Kin
derman had sent out an agent to pur-
chase lambs for future delivery. The
agent contracted to purchase a large
number OF lambs from Garcia and
promised to pay down $3.50 cash the
! balance to be paid on delivery. The
agent instead Of paying $3.50 cash
gave Garcia $50, and a draft on Kin
derman on a form prepared by him
and directed Garcia to forward the
same to certain bank at Pueblo,
Colorado. The draft was forwarded
as Garcia had been instructed but the
bank which held the draft for some
time, refused to honor it, and re-
; turned it finally to Garcia with the
endorsement: mo attention" Garcia
who had cashed this draft with Sam
uel Eldodt of Chamita was compelled
to reimburse Eldodt and sent back to
! klnderman the draft and $50 cash can
ceiling the contract Kinderman sued
! for damages in large sum but the
court held that when Kinderman fail
: ed to protect the draft and by failing
to pay $3.50 in cash or equivalent he
placed it in the power of Garcia to
revoke the contract, the court hold
ing upon numerous authorities that
where a draft is given as part of a
casn payment and is dishonored, it is
not a cash payment and avoids the
contract.
/ In the case of B. F. Pankey VS.. Or
tiz, ct al, involving a strip of grant
within Or adjoining the Eaton grant in
southern Santa Fe county the de-
murrer to the complaint was overruled
and defendants given twenty days il
which to answer.
! In the case of Christina Haines ct
al. VS.. Foster P. Blackwell, ct al, in
the district court for San Juan coun-
ty, involving the descent of commun
ity property, the demurrer filed to
the complaint that it failed to state
cause of action, was overruled, the
court holding that the alleged proper
ty involved to be community property
and that the complaint was good as
against the demurrer. The defend
ants were allowed twenty days after
service of notice to file answer.
In the case of the Territory eX rel
Thomas B. Gable, game and fish war
den, vs. William G. Sargent, auditor
OF the Territory, mandamus suit to
compel the auditing of warrant
drawn upon the auditor by the game
and fish warden for the specific pur
pose of establishing fish hatchery in
the Santa Fe canon, the decision was
in favor of the auditor upon the
ground that there is no affirmative au-
thority given by statute for the estab-
lishment of fish hatcheries and no spe.
cific authority for the payment oil
funds from the territorial treasury
II absence of such authority the court
cannot compel by mandamus the pay
ment of territorial funds for such pur-
pose. This was a test case, the
amount involved being but few
: cents, although there are more than
7 $4,000 available in the fund and the
: statute says that this act shall not
prevent the establishment of fish
: hatcheries. But this is merely mega
tive and affirmative authority is not
given.
In the case of the Territory on be-
half of the Taos County Bank VS.. At.
: torney w. NJ. Mills of Springer, suit
on bond, a demurrer was filed to the
amended answer which set up the re-
? lease of the defendant of liability from
r the bond as surety because that more
. than $4,000 had been deposited in
| the bank and the surety was limited
/ to that amount More than the pen
: atty being deposited, Attorney Mills
5 argued that the sureties were releas-
f ed. The demurrer challenged this an.
5 sver and Judge John R. McF'ie today
: sul tanned the demurrer giving twenty
t days in which to amend the answer.
: Attorney A. B. Renehan this fore
5 noon filed in the district court for
, Taos county a suit by Edith s. Manly
5 VS.. Arthur R. Manly, the Taos Valley
7 Land Company and the Taos Land
| Company on note for $4,000 on which
| only $500 has been paid.
Judge John R. McFie and court of
ficials, including District Clerk Frank
: w. Shearon, interpreter Jose D. Sena