that these affidavits and a copy of the newspaper were offered in the trial court by the defendant in support of his motion for a new trial, and by the court excluded. Chief Justice Fuller, in delivering the opinion of the supreme court, says: "Private communicatiens, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear." The chief justice continues: "The jury in the case before us retired to consider of their verdict on the 7th of October, and had not agreed on the morning of the 8th, when the newspaper article was read to them. It is not open to reasonable doubt that the tendency of that article was injurious to the defendant. Statements that the defendant had been tried for his life once before, that the evidence against him was claimed to be very strong by those who had heard all the testimony, that the argument for the prosecution was such that the defendant's friends gave up all hope of any result but conviction, and that it was expected that the deliberations of the jury would not last an hour before they would return a verdict, could have no other tendency. Nor can it be legitimately contended that the misconduct of the bailiff could have been otherwise than prejudicial. Information that this was the third person Clyde Mattox had killed, coming from the officer in charge, precludes any other conclusion. We should therefore be compelled to reverse the judgment because the affidavits were not received and considered by the court; but another ground exists, upon which we must not only do this, but direct a new trial to be granted." It will be apparent, upon comparing the affidavits set out in the opinion in this case with the affidavits in the Mattox Case, that there are few, if any, points of similarity. The bill of exceptions in the case at bar contains another affidavit, made by Officer Hubbell, and which was considered by the court upon hearing the motion for a new trial, which unmistakably shows that we are not in conflict with the doctrine found in the case cited, in deciding this case as we did. That affidavit is as follows: "Thomas S. Hubbell, being first duly sworn, on his oath deposes and says that he is a deputy sheriff of Bernalillo county, in the territory of New Mexico; that on the night of the 25th of March, 1891, he slept in the courthouse in Bernalillo county, with Vicente Armijo, court bailiff, who had charge of the petit jury during its consideration of the case of the Territory of New Mexico versus V. P. Edie, charged with rape; that said jury was kept together that night in a room leading off from said court room; that about the hour of six and a half o'clock on the morning of the 26th of March, 1891, one of said jurors, named Jose Dario Aragon, came out of the jury room into the court room, and asked

affiant if he could and would write out the form of a verdict for the use of the jury; that afliant then took up a piece of paper, and with a lead pencil proceeded to write out the form of a verdict, and he then asked the said juror whether the form should be that of guilty or not guilty; that the said juror replied that the form should be guilty, and assessing his punishment at 5 years in the penitentiary; that affiant then completed a form of verdict in accordance with such directions, and handed the same to said juror, who then immediately returned into the jury room. Affiant says that no conversation occurred between him and the said juror, or with any other person in his presence, about said case, other than is herein stated, and further he saith not." This affidavit, and the one set out in the opinion, negative the possibility of prejudice to defendant's rights, and render apparent the harmlessness of the transaction. The facts revealed by the affidavits in the Mattox Case were radically different, and rendered not only possible, but highly probable, the injurious effect of the misconduct charged and admitted. It would subserve no useful purpose to make extended remarks upon the great dissimilarity between the facts in the two cases. We are free to admit that, if the affidavits in the present case disclosed even a fractional part of the outrageous misconduct apparent in the Mattox Case, we would have no hesitancy in reversing the judgment and awarding a new trial.

Defendant contends that the rule followed in the decision of the present case, to wit, "it is now almost universally established that, unless it appears that such interference takes place for some corrupt or sinister purpose, or that such conduct has been prompted by the parties, and has resulted injuriously to one of such parties, the verdict will not be disturbed, either in civil or criminal cases," is in irreconcilable conflict with the doctrine announced in the Mattox Case by the federal supreme court. The language chosen by us to express the rule may not be faultless. It was used in the light of the record disclosing the misconduct of one of the trial jurors. That record, containing the two affidavits of the deputy sheriff, instead of showing prejudicial error, renders apparent the harmlessness of the improper transaction. It is to be presumed that the affidavits fully reveal all the facts and circumstances of the alleged misconduct. If so, it is manifest that the error committed was not injurious to the rights of the defendant. In the case before the United States supreme court the affidavits for a new trial showed that the bailiff stated to the jury that Mullen was the third person killed by Mattox. They further showed that a local newspaper, containing a bitter article upon the bad character of the defendant, and the views of the community as to the proof of his guilt, had been introduced into the jury

room, and read to the jurors, while examining the testimony, and deliberating upon their verdict, and the language used in the opinion was predicated upon these facts. Prejudicial error is as apparent in the federal case as is its absence in the case before us. But, if modifying the general rule before cited, and adopting for the purpose of this decision the doctrine of the supreme court of the United States in the Mattox Case, that "private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and inalidate the verdict, at least until their harmlessness is made to appear," we must still hold that the conclusion reached may safely rest upon the principle embodied in the latter rule, as the record makes apparent the harmlessness of the alleged misconduct. The precise point presented for determination in the Mattox Case was the alleged error of the trial court in refusing to receive the jurors' affidavits showing the misconduct complained of, and not error in refusing to set aside the verdict on account of such misconduct. In the present case the affidavits of the deputy sheriff were received and considered, and were found by the trial judge insufficient to warrant the vacating of the verdict. In so doing, can we say that the rule announced in the Mattox Case was violated? Can we say that the judge below abused the discretion with which the law invests him, in concluding, upon a full and fair consideration of the affidavits presented, that the harmlessness of the transaction was apparent? If we do, we establish a rule fraught with danger to the best interests of the community, and add a new element of uncertainty to the determination of criminal prosecutions. We do not overlook defendant's rights. Great as is the crime of which he has been convicted, it would be a still greater crime to allow such conviction to stand, if procured in violation of his constitutional rights. The forcible language used by Chief Justice Fuller was, no doubt, inspired by the nature of the record before him; but adopt it as a rule in this territory, in the sense claimed for it by the appellant, and New Mexico would soon become the nursery of crime, and the paradise of criminals. In other countries, where English is the language of all the people; where court officers and jurors understand the language of the judge; where the bailiff in charge fully realizes the nature of his oath, and the obligations thereof; where all or a greater part of the jurors are able to formulate and write down their verdict without assistance from others; where the facilities and conveniences surrounding the jurors are ample and suitable; where outside interference and favoritism are regarded as evidence of corruption,-the adoption of the rule, in the limited sense claimed by the appellant, though not generally favored in states not bound, as we are, to follow fed

eral decisions, might not be attended with great danger. Still, it would have a tendency to render the administration of criminal justice almost impossible in New Mexico. A harmless whisper or a meaningless nod might be sufficient, in certain cases, to cheat the gallows of a deserving victim. Hence we are constrained to hold, in the present case, that the trial judge was fully justified in refusing to set aside the verdict and grant a new trial. We are satisfied that the correct reading of the two affidavits made by Deputy Sheriff Hubbell makes apparent the harmlessness of the communication between himself and the derelict juror. As the foregoing is the chief error, deserving attention, upon which the defendant relies for a reversal, we are unable to change our opinion, and the judgment must stand affirmed.

FREEMAN, J., concurs.

SEEDS, J., (dissenting.) Not being able to arrive at the same conclusion as the majority of the court in reference to the disposition of this case, I have thought proper to briefly give my reasons for dissenting. The case is before us upon a rehearing. I am perfectly satisfied with the result upon the merits, but as to the error complained of, in regard to the reprehensible conduct of one of the jurors, I feel that we have, in our previous decision, laid down a rule which, while then in consonance with the great weight of authority, is now, by reason of a late decision of the supreme court of the United States, not law for this court. We are bound by the rulings of the supreme court of the United States. In the case of Mattox v. U. S., 146 U. S. 140, 150, 13 Sup. Ct. Rep. 50, in discussing the effect of communications made to a juror or jurors by an officer of the court, Chief Justice Fuller says: "Private communications, possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear." In the previous decision of this case, (Territory v. Edie, 30 Pac. Rep. 851,) Chief Justice O'Brien says: "It is now almost universally established that, unless it appears that such interference takes place for some corrupt or sinister purpose, or that such conduct has been prompted by the parties, and has resulted injuriously to one of such parties, the verdict will not be disturbed, either in civil or criminal cases." It is quite apparent that these two rules are opposed to each other. The one throws the burden upon the territory to prove the acts done not prejudicial, they being assumed to be such. The other casts the burden upon the accused to prove the acts injurious or prejudicial to him. The one enunciated by the United States supreme court must govern, provided it is a rule adopted by that court upon a point directly before them.

It is suggested that the rule is obiter dictum, but I cannot so consider it. In the case where this rule is laid down, it is true that the record shows that the lower court refused to consider the affidavits of certain jurors which proved the acts complained of; and the point was urged that an appellate court will not review the action of a trial court in overruling a motion for a new trial, that being in the sound discretion of the trial court. This was not denied, but the court held that, as the trial court refused to consider the affidavits, it had not exercised its discretion at all, and hence it proceeded to consider whether that court ought to have considered the affidavits, and how, and, in arriving at its conclusion that there was error in refusing to consider the affidavits, the court shows why, legally, they ought to have been considered, and in what manner. If the court had stopped short of enunciating the rule which they did, if it is law, they would have sent the accused back to be tried in accordance with a rule which they recognized not to be law. The question before the supreme court was not, alone, ought the affidavits to have been received, but for what purpose? And the decision is that affidavits may be received to show that acts have transpired with or in the presence of jurors possibly prejudicial to the accused, and, if so, then a sound discretion would at once award him a new trial, unless the prosecution made their harmlessness to appear. Without the rule laid down the decision would have been valueless to the law, and possibly only a temporary benefit to the accused. It is, however, urged that the affidavits in this case show that the act was harmless. There are two objections to this contention: First, I think that they show very plainly the possibility of prejudice, and not one thing to explain away that possible prejudice. It was well insisted, upon argument, that there was a possibility-yes, a probability-that the juror who came and obtained the verdict in the handwriting of an influential officer might, with great effectiveness, overcome the scruples of a dissenting juror by showing him that his especial friend or master thought the accused guilty. Where is there anything in the affidavits to show that this possibility did not occur? If there is nothing to show this harmlessness in the record, it must be presumed that the accused was injured. But, in the second place, I do not believe that the lower court ever used its sound discretion upon the matter, and hence, under the acknowledged point of the decision of Mattox v. U. S., supra, he is entitled to a new trial. I understand that a "sound discretion" means a discretion exercised upon all v.34p.no.1-4

the facts in the case in accordance with the law. It must, then, be presumed that the lower court passed upon the affidavits before it under the view of the law as then held by this court,-that, if there was any injury in the act complained of by the accused, it was his duty to establish "that such interference takes place for some corrupt or sinister purpose, or that such conduct has been prompted by the parties, and has resulted injuriously to one of such parties." It may be conceded that the accused failed to meet the requirements of this rule. But that was not the law, and if the law, as now enunciated, had been the rule by which the court had exercised its discretion, it is possible that a new trial might have been granted the accused. It is no answer to this position to say that the territory introduced another affidavit which tends to show the harmlessness of the act complained of, for it could not have been for that specific purpose, as there was no law then which required such a procedure. It may be urged that we can readily see by the affidavits that the act was harmless, and hence it is a "vain thing" to reverse the case, and send it back for a new trial. I have shown already that I do not draw that conclusion from the affidavits, and it is possible that the trial court might not arrive at that conclusion. But that is not the question. The accused was entitled, under the law, to have his motion for a new trial passed upon, in the first place, by the trial court, not by this court, according to the due course of law. He was entitled to a sound legal discretion upon that right, and, not having had such a ruling, he has presumptively been prejudiced. Crime ought to be punished with as little delay as possible, consistent with the orderly administration of law, and without any sentimentality. But there is, in my judgment, as great a danger, if not greater, in turning aside from the proper rules for the administration of criminal procedure, even where it may be clearly seen that no practical injustice is being done, as there is in giving way to the sentimental expressions of our nature. It is far better that some acts of wrong go "unwhipped of justice" than that it be known that juries may be tampered with, and yet their verdicts stand. The sure, unchanging, and absolutely pure administration of the forms of law is the only safe protection for innocence and liberty, and under such administration it is hardly probable that crime will fail of being punished. I am of the opinion that the judgment ought to be reversed.

FALL, J. I agree with the conclusions reached by Judge SEEDS.

BY ONE OF SEVERAL DEFENDANTS. 1. Where an action in tort against two railroad companies jointly, in which both defendants pleaded, is prosecuted to judgment without severance or dismissal as to either, the judgment is against both, though the entry thereof is as against "defendant" in the singular number, and in the title of the case indorsed thereon one of the defendants is referred to only by "et al."

2. Where, in an action in tort against two defendants, judgment is rendered against both jointly, one may bring error to review the same without joining therein the codefendant.

Error to district court, Bernalillo county; William D. Lee, Judge.

Action in tort by James H. Madden against the New Mexico & Southern Pacific Railroad Company and another. Plaintiff had judg ment, and the defendant the New Mexico & Southern Pacific Railroad Company brought error, which plaintiff now moves to quash. Motion denied, and judgment directed.

Henry L. Waldo, for plaintiff in error. L. Warren, for defendant in error.

was num

FALL, J. This is upon error from Bernalillo county, and the cause is submitted upon motion of defendant in error to quash the writ, and also upon the merits. The motion to quash is based upon the ground that the suit was against both plaintiff in error and the Atchison, Topekа & Santa Fe Railroad, while the cause was submitted and judg ment really rendered only against the latter, or the Atchison, Topeka & Santa Fe Railroad Company. It is also contended that, if the judgment was against both, then, without notice of severance, both should have sued out writ. The record is confused. The action was against both parties mentioned, and each pleaded. The cause bered 2,691, and upon the record is at times indorsed "James H. Madden vs. New Mex. & Southern Pac. R. R. Co.;" at other times, "N. M. & S. P. R. R. Co. et al.;" again, "Madden vs. A. T. & S. F. R. R. Co.," etc. No severance was had, and no dismissal entered. The jury "find for the plaintiff," and the first judgment is against the "defendant" in the cause No. 2,691, indorsed "James H. Madden vs. New Mexico & Southern Pacific Railroad Co. et al.;" and afterwards appears another judgment against the "defendants," the entry being indorsed "James H. Madden vs. New Mexico & Southern Pacific Railroad Co. and the A. T. & S. F. R. R. Co., No. 2,691." Motions are made, and instructions asked, sometimes in the name of the defendant, and again of defendants. From a careful examination of the record, it would appear that the cause proceeded against both defendants to judgment. When singular appears, it can be construed as plural, and vice versa. Section 1851, Comp. Laws N. M.

This being an action of tort, judgment might be rendered against both or either party, and either party, upon proper proceeding, is entitled to review, while the other may pursue the course dictated by his own judgment. The judgment being against the plaintiff in error, writ properly sued out, and no notice of severance necessary, motion to quash writ is overruled. 1 Black, Judgm. § 207, and cases cited.

Plaintiff in error assigns several causes of error relying upon the refusal of the court to instruct the jury to return a verdict for the defendant below, and shows here that there was a variance between the declaration and proof,-it is claimed a fatal variance. It is also claimed that there was no proof whatever to sustain a verdict against this plaintiff in error. This last construction is borne out by the record, as there does not appear to be a particle of proof to support the declaration against the plaintiff in error. This being the case, it is not necessary for us to go further, and consider in this cause the other points presented. Proof having failed, plaintiff was entitled to have the jury instructed to return a verdict for it. 1 Black, Judgm. § 207, and cases cited. But plaintiff in error claims that, if the judgment as to it is reversed or set aside, the judgment against its codefendant should also be reversed. To this we cannot agree. Defendant sued out writ of error. If its codefendant desired a reversal, it should have asked for it; while if the judgment against it is not good, because indorsed "A. T. & S. F. R. R. Co.," instead of "Atchison, Topeka & Santa Fe Railroad Company," as is contended, then there is nothing for us to re

verse.

Defendant in error asks in a supplemental motion that we may reform the judgment as to the Atchison, Topeka & Santa Fe Railroad Company. That defendant is not yet in this court. It would appear from the instructions given that the court only regarded this case as against the Atchison, Topeka & Santa Fe Railroad Company, and, indeed, there was a suggestion in the oral argument that the cause had been dismissed as to the plaintiff here. This, as stated before, does not appear upon the record, and, for the reasons given, the cause will be remanded, with instructions to the court below to set aside the judgment as to the New Mexico & Southern Pacific Railroad Company.

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

(7 N. M. 219)

BUNTZ et al. v. LUCERO. (Supreme Court of New Mexico. Aug. 23, 1893.)

WRIT OF ERROR-DISMISSAL-EXCEPTIONS TO DENYING NEW TRIAL.

As a motion for a new trial is addressed to the discretion of the court, where the only

assignment of error is the overruling of such motion, the writ of error may properly be dismissed.

Error to district court, Dona Ana county; John R. McFie, Judge.

Action in ejectment between Annie D. Buntz and another and Barbero Lucero. From the judgment rendered, Buntz and another bring error. Affirmed.

E. C. Wade, for plaintiffs in error. S. B. Newcomb, for defendant in error.

LEE, J. This was a suit in ejectment, and was brought to this court by a writ of error. The only matter brought up by bill of exceptions is the evidence, which is voluminous. There were no errors assigned at the commencement of this term, and the defendant in error moved for a dismissal of the writ of error for that reason. On the fourth day of the term the plaintiff in error filed the following as an assignment of error: "Now comes the above plaintiffs in error by E. C. Wade, their attorney, and makes the following assignment of errors in the above-entitled cause: First, the court erred in overruling the motion for a new trial." Section 2189 of the Compiled Laws provides that “on appeals and writs of error the appellant and plaintiff in error shall assign error on or before the first day of the term to which the cause is returnable. In default of such assignment of error, the appeal or writ of error may be dismissed, and the judgment affirmed, unless good cause for such failure be shown." Considering the assignment of error in this case as having been filed in time, it would be entirely insufficient, under the rulings of this court, as it has been held that a motion for a new trial is a motion addressed to the sound discretion of the court, and the decision of the court in granting or refusing it alone is not the proper subject of a bill of exceptions. Coleman v. Bell, 4 N. M. 46, 12 Pac. Rep. 657. Therefore, there being no assignment of error in this case which the court would consider, the motion to dismiss the writ of error might be sustained. But, having carefully examined the entire record, and not having been able to discover any error that would justify a reversal, we think the judgment below should be affirmed, which is accordingly ordered.

O'BRIEN, C. J., and SEEDS, FALL, and FREEMAN, JJ., concur.

(9 Utah, 260)

COUGHRAN et al. v. BIGELOW et al. (Supreme Court of Utah. Aug. 31, 1893.) CONTRACT OF SALE-BOND FOR CONVEYANCE-INCONSISTENT PROVISIONS-RIGHTS OF VENDEE.

1. Where it appears from a contract for the sale of land that the parties have in fact agreed that by failure to make certain deferred payments at the specified times the vendee shall

lose the benefit of his purchase, the courts will grant him no relief.

2. Where a bond is given for the performance by a vendor of a contemporaneous contract of sale, which is referred to in, and so made a part of, the recitals of the bond, stipulations in such contract as to the times of making payments and of delivery of the conveyance will control repugnant provisions in the condition of the bond.

3. The liability of a surety is not to be extended by implication.

Appeal from district court, Weber county; James A. Miner, Justice.

Action by Eugene W. Coughran and Nathan H. Cottrell against Henry C. Bigelow and H. P. Henderson. From a judgment for defendants, plaintiffs appeal. Affirmed.

Dey & Street and Bennett, Marshall & Bradley, for appellants. Brown & Henderson, for respondents.

BARTCH, J. This action was brought to recover the penalty in a bond which was given as a guaranty for the faithful performance of a contract to convey real estate. The respondents were sureties on the bond. When the evidence of the plaintiffs was introduced the defendants moved for a nonsuit, which motion was sustained over the objection of plaintiffs, who thereafter moved for a new trial, and, this motion being overruled, they prosecuted their appeal in this court.

The contract in question, among other things, specified that the purchase price for the land was $10,000, of which $3,333 was paid down, $3,334 was to be paid October 1, 1890, and $3,333 on April 1, 1891, and then further provides as follows: "And, in case any payments are not made as above provided, the amount paid herein is forfeited, and this receipt is from that time void and inoperative; and when the payments are made as above provided the land to be conveyed to said Eugene W. Coughran and Nathan H. Cottrell, or their assigns, with good title free from incumbrances." This is a unilateral contract, and according to its terms it was incumbent upon the vendees to pay the whole amount of the purchase price before they could demand performance on the part of the vendors; the vendees, however, having the right to demand and receive the deed from the vendors simultane ously with the making of the last payment. which was to be made on the 1st day of April, 1891. The contract contains a forfeiture clause, and to prevent a forfeiture on the part of the vendees it was necessary for them to make the several payments as therein provided. Time, therefore, was material and of the essence of the contract, and, if the payments were not made on the days specified, a right of forfeiture immediately accrued to the vendors, which they could enforce or not, at their pleasure; but if they afterwards received the payment the right of forfeiture, as to them, was gone. Where