Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1920-05-31
LIST OF SUPREME
COURT DECISIONS

The Following decisions have
been handed down by the supreme
court of New Mexico: boz.
Jennie P. Page appellee. VS.. H. |
B, Jones, ct al. appellants. No. |
1881. Quay county.
Appellee sued appellant in re-
pleyin seeking to recover possessionI
Oh f4O head of sheep or varying |
ages, The writ was issued and APP
peliants gave a forthcoming bond |,
ana retained possession Of thel
sheep. An answer was filed and the |
cause put at issue and was tried rol
a jury. Judgment was rendered forl
the appellee for possession of $500
ewes. and Judgment for $4,000 I'M
the alternative. From this iudg |
ment appellants appeal.
Judgment of the court below re- !
versed and cause remanded.
Syllabus.
/. IT intermiXed properly is of !
the same kind. quality and value, |
and if no advantage will result toI
either party getting the Identical |
property owned BY him, even i'll
that were possible, replevin will lie !
for the number or quantity owned |
by the plaintiff, TO be taken out of |
the mass, where the proof shows
the quantity or portion of TO which
each party is entitled, and the in |
termingling was not brought about
by the wrongful or fraudulent actl
of the party seeking relief.
2. Where a confusion OF goods Is |
occasioned by the negligence OIL
one. but the goods are of equal and |
uniform value: that is. when the
mixture is approximately homo |
geneous, the party responsible fori
the confusion does not forfeit his |
interest in the goods, where there
has been no fraud or intentional !,
wrong doing. and the evidence |
clearly shows the portion contrib |
uted by each of the parties.
s. Section Al and AZ, Code 1915, |
which authorizes the recording OIL
paftido contracts, are permissivel
and not mandatory, and a failure
to record such a contract does notI
render the same void as to subse- |
ouent purchases or mortgages
without notice.
Opinion by Roberte. J.: Parker,
c. j., and Reynolds, j., concurring.
The State ex rel Benito Sandoval,
ettal., aDpeflees. VS.. Board of Coun-
ty Commissioners Guadalupe Coun-
II, etc, appellants. No, ,375.
Guadalupe county. ~"
This is q contest case. Hereto
fore the bill of exceptions having
been stricken
The Judgment of the court is af-
firmed. N
t0rfgt syllabus.
Where assignments Of error are
based solely upon matters SHOWN
blythe bill of exceptions. and the
bill of exceptions is stricken, the
cause will be affirmed on moqon.
Opinion by Roberts, j.: Parker
C. j., and Reynolds, j., concurring
$50 -----' 4.Itr
The Citizens National Bank etc,
appellant. vs. r. 2. Bean; Jr. ct al,
appellees. No 2 2,403. ChaVes'
county.
against the appellee as adInlnlstra-
tor of the estate of K, =. Bean, ST.,
deceased, on a promissory negotia..
Bile noteS for 81 900. The note had
been executed and delivered TO tire
appellant by the deceased In his
lifetime. The complaint was in the
ordinary form and alleged that the
noto was past due and unpaid and
asked for attorneys fee. The an
lnnlstrator answered, admitted the
execution of the note but denied
that it was issued for a valuable
consideration, and for defense by
way of new matter set up in detail
the transaction leading up to the
execution and delivery of the note;
Issue being joined Judgment. was
rendered for the appellee from
which this appeal is prosecuted. =
Judgment of the court below, re-
vn~eed cause remanded for new
trial. e.u.,
j.. Section 2.175, Code 1919,
which preciudes an opposite or m
terested party from obtaining
verdict, Judgment or DECISION
against the heirs. executors; admin,
istratorc or assigns of a deceased
person upon his own evidence IN
respect to any matter occurring be-
fore death of the deceased person
unless such evidence is corroboro-
rated bv some other material evil
dence, has no application to a SUIT
against the administrator OF a de-
'coased maker of promissory note.
where the signature Of such de-
ceased maker is admitted.
.. Under section ole, Code l9l5,
every negotiable instrument is
deemed prima facie to have been
issned for a valuable consideration
and every person whose signature
appears thereon to have become a
party thereto, for value; and IN a
suit unon a negotiable promiss9ry
note, the burden of shown" that
there was want OF conslder.at y,
rests upon the Gefencant' and II the
defendant offers any evidence
which shows, or tends TO show
want of consideration. then it Is in
cumbent upon the plaintiff to show
by fair preponderance OF evi-
dence upon the whole case that
thnra was consideration, t