applicable to general laws which are in conflict with, and repugnant to, each other. When a general law is in apparent conflict with some prior private or special act, passed for the benefit of some particular interest or municipality, the presumption is indulged that it was not designed by the general to repeal the special law; but no such presumption is entertained in the case of conflicting general statutes. They cannot stand together.

There can be no question that the two statutes prescribe different qualifications for electors, and the older must yield to the later. It may be added that the act of the thirteenth session was an election law, and by its last section it not only expressly repealed the former law on the same subject, but also "all acts or parts of acts in conflict with this act," which must be held to exclude any presumption that the legislature did not intend the repeal of all conflicting statutes. However, the fact that on the 11th day of January, 1887, the legislature by one act swept out of existence all former legislation and laws of Idaho, and enacted a complete revision thereof, now embodied in our Revised Statutes, including sections 3941, 3942, as they now are, is sufficient answer to all suggestions that the legislature did not intend the statutes as they now read. One of the prime objects of a revision is the elimination of doubt. What is included therein must be construed together as the law, and all that formerly existed, and not included, is clearly repealed. Section 19, Rev. St.

2. It is not conceded an elector must be registered to act as a juror. Section 500 says he must be registered to vote. It does not follow that, if he has all the qualifications of an elector, he must be registered, to sit in the jury-box. Registration does not go to his qualification, but is only a precaution to prevent fraud in the election. But, even if the law should be construed that a juror must be registered, it would generally result in only a few being temporarily debarred the privilege of jurors.

3. It is, unfortunately, true that in some counties such a large proportion of the people belong to said "organization" that juries cannot be selected from the mass of the people, and courts may at times find it even inconvenient to procure them. So, also, communities might be found where the qualification of citizenship, or any other general qualification, might result in the same inconvenience. On the contrary, we think the legislature meant to exclude from jury service those belonging to the so-called "Mormon Church." By section 501 they are distinctly enjoined from "holding any position or office of honor, trust, or profit.' Laws are construed in the light of the facts and circumstances under which enacted. We are justified in supposing the law-maker took notice of the generally admitted fact that the members of that church are more obedient to its teachings, which are antagonistic to the laws of the land, than to the latter.

View this question in any light, we are forced to the conclusion that under our laws a juror must have all the qualifications now required of an elector, and that the court should have excluded the juror objected to by appellant. That this conclusion will lead to inconvenience in some localities may be true, but we cannot change what seems to be a positive and clear statute. If there is any need of a change, we respectfully refer it to the legislative department.

Exception to Order Overruling Challenge for General Cause. Respondent insists, however, that, even if the juror was not qualified, the statute does not allow appellant an exception to the order of the court overruling his challenge to such juror. Inconsistent as it may appear, it seems such is the statute. Section 7831 divides causes of challenge to jurors into (1) general, including "a want of any of the qualifications prescribed by law to render a person a competent juror," (7832,) and (2) particular, which includes implied and actual bias (7833.) The cause of challenge in this case was a general cause; and the statute in no place provides for or allows an exception to an order overruling such a cause of challenge. Our section 7940 (Pen. Code Cal. § 1170) allows exceptions only in matters of challenge based on implied or actual bias. Here, then, we have a statute which declares a juror disqualified, but provides no remedy to the aggrieved party when the court admits him. On the principle that there is a remedy for all wrongs, we would be inclined to hold that such action of the court is reviewable. But our statute on this subject is an exact copy of that of California, and in adopting their laws we adopt also their construction of them. Partially in point is the case of People v. Riley, 65 Cal. 107, 3 Pac. Rep. 413, and cases cited, which hold that a defendant is not allowed an exception to the ruling of the court disallowing a "challenge for actual or implied bias," because the statute makes no provision for such exception, but only allows it to the decision of the court "in admitting or rejecting testimony, or in charging the triers in the trial of a challenge to a juror for actual bias. The direct ques

tion is decided in People v. Fong Ah Sing, 70 Cal. 8-11, 11 Pac. Rep. 323, being a cause in which defendant was found guilty of murder. A juror who was not a resident of the county, as required by law, was admitted against defendant's challenge. On appeal it was held this was a general cause of challenge, to rulings in which no exception is allowed. The case seems approved in People v. Ward, 77 Cal. 113, 19 Pac. Rep. 373. We therefore hold the appellant's exception to the order of the court overruling his challenge to the juror is not well taken.

Depositions may be Used on the Trial. Was it error to admit in evidence the depositions referred to in the cause? Appellant claims it was, because not permitted by the

statute, and contrary to the constitution of the United States. Under the common law, the depositions of witnesses, taken in the presence of the defendant, could be used at the trial of the cause in case of the death or absence of the witness, but it seems they could not be used before the grand jury. Does our statute abrogate the common-law rule, or prohibit the use of depositions? Sections 7576 and 7634 provide for the taking of the depositions, and their use before the grand jury. It seems probable these provisions were designed to procure the testimony of witnesses while it is fresh in their minds, and also in the interest of economy and convenience. The question of testimony before the trial jury was not under consideration. The two questions are not sufficiently relevant that the consideration of one necessarily involves the other. It is evident this legislation referred only to the use of such evidence before the grand jury; for it provides for its use even when the presence of the witness can be procured, which is never permitted in the use of such testimony before the trial jury. The subjects not being relevant, failure to provide for its use before the trial jury does not operate to exclude it. Our statutes expressly establish and recognize the principle of the use of depositions on the trial in certain cases, of the absence or death of the witness. Sections 7588 and 8161. Then why not in all cases, if not expressly forbidden? Section 8161 provides expressly for the taking of depositions of defendant's witnesses for use on the trial, and the fact that no provision is made therein for taking the deposition of the people's witnesses strongly suggests that it was designed they should not be used. But it does not appear we have abolished the common-law rule on this subject, nor have we directly enjoined the use of such testimony; and it does appear that all the depositions above referred to are taken in the same way, in the presence of the accused, thus justifying the presumption of a like use of all so taken; and section 7864 provides that "the rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this Code." There is no doubt this is a question relating to "the rules of evidence," nor is there that depositions may be used in civil actions. We think our statute permits their use before the trial jury when duly taken in the defendant's presence, and the witnesses cannot, for good cause, be brought before the court.

The Use of Depositions not Forbidden by United States Constitution. It remains to consider whether article 6 of the amendments to the constitution of the United States, providing that the accused must be "confronted with the witnesses against him," absolutely requires the presence of the witnesses at the trial. This question has been discussed time after time in the courts of the states having the same or similar constitutional provisions; and, while the

decisions have not been uniform in their conclusions, the weight of authority is that depositions taken in the presence of the defendant, with the right of cross-examination, is being "confronted by the witnesses," and meets the demands of the constitution. Such depositions have been admitted when it appeared the witness was dead. If constitutional in such case, the same justification can be urged for their use in case of absence of the witness. Of the many authorities sustaining this view are State v. McO'Blenis, 24 Mo. 412, a murder case, in which depositions were allowed notwithstanding a constitutional provision that "in all criminal prosecutions the accused has the right to meet the witnesses against him face to face." Summons v. State, 5 Ohio St. 340, was a murder case. The constitutional provision was: "In any trial, in any court, the party accused shall be allowed * * * to meet the witnesses face to face." The testimony of a witness given in a former trial was permitted to be testified to by those who heard it; the witness having in the mean time died. To same effect are Gilbreath v. State, 26 Tex. App .318,9 S. W. Rep. 618; Sneed v. State, (Ark.) 1 S. W. Rep. 70; and numerous authorities. Had the depositions been improperly admitted, the appellant has failed to furnish the court such a record as will authorize it to correct the error. Section 8236 is: "Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right." The appellant has entirely failed to show us he was prejudiced in the least by the alleged error of permitting the use of the depositions. That the court may judge whether they were detrimental to appellant, he should have brought them here, which he has failed to do. It is not enough for appellant to show error. He must, under our statute, show damaging error. Under the plain provision last noted, we do not need the guide of other courts to lead us to this conclusion; but in harmony with it are People v. Brotherton, 47 Cal. 388; People v. Leong Sing, 77 Cal. 117, 19 Pac. Rep. 254, and cases cited; and People v. Olsen, (Cal.) 22 Pac. Rep. 126. The judgment in this cause should be and is affirmed.

(5 N. M. 408)

BENT v. THOMPSON et al. (Supreme Court of New Mexico. Jan. 23, 1890.) PROBATE OF WILLS-ADOPTION OF COMMON LAW.

1. Under Comp. Laws N. M. 1884, § 1823, which adopts the common law as the basis of jurisprudence, the statute law is not repealed, but only so much of the common law is adopted as is not in conflict with the statute law. Browning v. Browning, 9 Pac. Rep. 677, followed.

2. Under Comp. Laws N. M. 1865, § 1365, which continues in force the Laws of Velarde in relation to the probate of wills, and under Laws of Velarde, c. 15, which provides that a will may be presented for probate by any person interested, and that the

witnesses must be summoned and examined, but makes no provision for notice to the heirs, an order admitting to probate a will presented by the widow of the testator, and duly proved by the witnesses, is valid, though no notice was given to testator's children.

3. Under Comp. Laws N. M. 1884, §§ 1869, 1881, which provide that an infant whose rights would be otherwise barred by lapse of time shall be allowed three years in which to assert his rights in regard to land, but only one year in which to assert all other rights, a proceeding to re-probate a will, four years after reaching majority, is barred. Error to district court, Taos county; REEVES, Judge.

Wells, McNeal & Taylor, for plaintiff in error. Frank Springer, for defendants in

error.

MCFIE, J. This is an action originating in the probate court of Taos county, wherein William Bent seeks a re-probate of a will probated in the year 1867 as the will of Alfred Bent, his father. In his petition, which was filed in said court on the 12th day of August, A. D. 1887, William Bent alleges, in substance, that his father, Alfred Bent, died December 9, 1865, leaving as his sole heirs at law his widow, Guadalupe Bent, now the wife of one George W. Thompson, Charles Bent, William Bent, also known as Julian Bent, and Alberto Silas Bent, all of said children being infants; that letters of adininistration were granted to said Guadalupe Bent upon said estate, April 12, 1866; that on the 6th day of March, 1867, his mother, Guadalupe Bent, presented to the probate judge of said county, and had probated, a will, alleging it to be the will of Alfred Bent, and that neither he nor his brothers were notified, or were present, when said will was probated. The petitioner further alleges, on information and belief, that the will probated was not the will of his father, but says that, if it was, the testator was of unsound mind when it was executed; that the witnesses named were not present at the making of the will, nor were they examined when said will was probated. He alleges that the Maxwell Land Grant Company and the Maxwell Land Grant & Railway Company have or claim some right or interest in the premises, and prays that citation may issue requiring said Guadalupe Bent, now Thompson, to appear and make solemn proof of said will, and that Charles Bent, Alberto Silas Bent, and the abovenamed companies be cited to be present and hear said proofs. A copy of the will is attached, and is as follows: "In the name of God, Amen. I, Alfred Bent, being of sound mind and memory, and knowing the uncertainty of life and the certainty of death, do hereby devise and decree as my last will and testament, in presence of the subscribing witnesses, as follows, to-wit: First. I give and bequeath unto my wife, Guadalupe Long Bent, for the maintenance of her and my three children, Charles, William, and Silas Bent, all of my real and personal property. money, goods, and effects, after my just debts have been paid, which are as follows, to-wit:

To North & Scott, of St. Louis, the sum of five hundred and sixty-nine dollars, with interest; to Mrs. S. Beuthner and L. B. Maxwell, sixty dollars; to David Webster, the sum of four dollars,-which debts I desire shall be paid. I desire that my said wife shall be my executor, and may join with her, if necessary, any person who may desire for her benefit, and that of my children, heirs as aforesaid. In testimony whereof I have this 6th day of December, A. D. 1865, subscribed my name, in the presence of subscribing witnesses. Codicil. The debt due North & Scott, of the city of St. Louis, is jointly due by myself and Horatio Long, of Colorado territory. ALFRED BENT. Witnesses: FERNANDO MAXWELL, W. A. KITTRIDGE, JAS. S. HURST, CHARLES HART." Citation issued August 12, 1887, returnable September 5, 1887.

On the opening of court on the 5th day of September, 1887, T. B. Catron, attorney of defendant companies, appeared in behalf of said companies, and filed a written protest and motion to dismiss the cause for numerous reasons, in substance, that the will had been probated more than 20 years in the same court, and could not be re-probated; that the court had no jurisdiction; that the proceeding was barred by limitation; that there was no law authorizing the re-probate of the will; and that the proceeding was barred by reason of laches and unreasonable delay. The court overruled the motion, and, after hearing testimony, entered judgment declaring the former probate of the will illegal, and annulling the record of same, on September 7, 1887. From said judgment an appeal was taken by defendant companies to the district court for Taps county, where, at the November, 1887, term thereof, the following motion was made and allowed, dismissing the cause, and declaring said proceedings of the probate court at the September term, 1887, in regard to the probate of the will of Alfred Bent, null and of no effect. The motion was as follows: "Now comes the Maxwell Land Grant Company, and the Maxwell Land Grant and Railway Company, and move the court to declare null and of no effect all of the proceedings contained in the record had by the judge of the probate court of the county of Taos at the September term of said court, with reference to the re-probate of the will of Alfred Bent, and especially the part of said record declaring said will not to be the last will of Alfred Bent: (1) Because the same were not had in conformity with the provisions of an act of the legislative assembly of the territory of New Mexico approved January 26, 1861, entitled An act amendatory of the law of testaments,' and being sections 1446, 1447, 1448, and 1449 of the Compiled Laws of 1884. (2) Because said probate judge and court rejected and in effect declared said will of Alfred Bent null and contrary to law. (3) Said probate court and probate judge declared said will of Alfred Bent null and void, under the pretext of want of solemnities prescribed by law for

making wills. (4) Because said probate judge did not return said will to the person who may have applied for the approval thereof, either said William Bent or Guadalupe Thompson or any other person, nor did he note at the foot of said document the positive reasons on which he founded any opinion why he refused to approve said will. (5) Said will has not been presented to the district court by any person to whom the same has been returned, nor has the same been returned to any one whoever. (6) Because neither the probate court nor the probate judge had jurisdiction to entertain the said petition, or grant the prayers thereof. (7) Because neither said probate court nor said probate judge could inquire into the validity of the acts of the probate court or the probate judge, done at a regular term of the probate court, more than twenty years prior to the filing of said petition of William Bent. (8) Because neither said probate court nor said probate judge had any authority or right to review the action of his predecessor, or of the probate court, done in regular term, over twenty years before the application. (9) Because said will was made and executed and approved before the common law came in force in this territory, and there was no law in force at the time of making, executing, and probating of said will allowing a re-probate thereof. (10) Because the laws in force at the time of the making and execution of said will and the death of the testator did not provide for or permit any re-probate. (11) Because said petitioner has been guilty of laches, and has not made his application in due and lawful time. (12) Because said proceedings are illegal and void, and unauthorized by law. (13) Because the proceedings declaring said will not to be the will of Alfred Bent, deceased, are illegal and contrary to law, and not in the jurisdiction of the probate judge or probate court, and these respondents especially pray the court to declare the same null and void. (14) The record shows that neither the probate court nor the probate judge made any investigation as to the validity of said will, although it appears the witnesses, or some of them, had been before him at the same term in the matter of said petition. (15) Because said record is in other respects vague, uncertain, and insufficient, and not in accordance with law. CATRON, KNAEBEL & CLANCY, Attorneys for said Companies." To reverse this judgment the cause is brought to this court.

It is insisted by defendants in error that there is an error on the first page of the printed record, in that the date when William | Bent arrived at his majority is stated to have been "May 31, A. D. 1887.". They insist that it should have been "May 31, A. D. 1883." The plaintiff in error assumes the correctness of the record by basing an argument upon its correctness, and it becomes important for the court to know which is the correct date. An inspection of this record discloses the fact, to our satisfaction, that

the date "1887" is an error, and should be "1883." It will be observed that on page 10 of the record, where the petition is again set out in full, the date is given as "1883," and the ages agree with the order in which the names are given in the will. These considerations, it is true, may not be conclusive; but when added to these is the admission in the petition that plaintiff in error's father died December 9, 1865, all doubt is removed, as petitioner makes the further admission that he was living when his father died, thereby showing that "1887" cannot be the correct date. From this it will be seen that the petitioner had arrived at his majority more than four years prior to the commencement of this suit in the probate court. The certified record shows the conclusion above to be correct.

Plaintiff in error cites numerous authorities to the effect that under the English common law two forms of probating a will were recognized, namely, the common and solemn forms. The common form required no notice to the heirs or interested parties, while the solemn form required such parties to be cited to appear; and, where a will had been probated in common form, any interested party could appear, and have the will re-probated in solemn form, at any time within 30 years. Such was the practice in the ecclesiastical courts, which were in fact the probate courts of England. Plaintiff in error also refers to several of the state courts' maintaining the double form of probating a will, but an examination of these authorities shows that the courts of those states were either governed by the common law, or by special statute regulating the practice. Plaintiff in error assumes that the rules of the common law govern this case, as it will be observed that the petition demands a re-probate of the will in solemn form, and authorities cited are all in support of that view; while the defendants in error contend that the probate of a will in this territory is a purely statutory proceeding, and that the laws of this territory do not recognize the double form of probating wills prescribed by the common law, nor require notice to heirs or legatees. Let us therefore examine this subject with a view to determine what law governs this case.

The civil law was undoubtedly in force prior to conquest and the treaty of peace between the republic of Mexico and the United States, and in many respects remained in force for many years afterwards. The Laws of Pedro Murillo Velarde, in relation to the execution and proving (or probating) of wills, and administration of estates of decedents, dating back to 1790, were also in force, and were continued in force by specific provision of the Kearney Code in 1846. Comp. Laws N. M. 1865. Under the civil law, the only provisions made for proving a will (which is equivalent to probating) are as follows: "In order that an open testament, made before witnesses without a notary, can have effect, it must be declared valid by the judge. For the purpose of obtaining his

sanction, any one having an interest in its disposition may apply to the judge, who must summon the witnesses present at the execution of the testament; and, upon his finding that it has been truly made, he shall declare it a valid testament, and order it to be inscribed in the registers of some notary.” Schmidt, Laws Spain and Mexico, pp. 214, 215, art. 1015. In regard tó a close or sealed will, the provision is as follows: "When the testator is dead, the person believing himself heir or legatee must apply to the judge to have it opened. Thereupon the judge must order the person who has possession of the testament to bring it before him, and, having summoned the witnesses, exhibit it to them for the acknowledgment of their signatures. When such acknowledgment has been made by all the witnesses, or at least four of them, if the others cannot be hat, he shall proceed to open the testament." Partidas, lib. 3, tit. 2, p. 6; Schmidt, Laws Spain and Mexico, art. 1019. These laws, it will be observed, do not provide for notice, by publication or otherwise, to heirs or interested parties to be present at the probating of the will; only the witnesses to the will are to be summoned. Any interested party or person having possession of the wil might present the same for probate; and there is but one form of probate recognized, so far as we have been able to discover. The Laws of Pedro Murillo Velarde are almost identical, and provide: "Chapter 15. Of the Sealed Testament, and the Proving of the Nuncupative Testament not Made before a Notary. The testator who has executed a sealed testament being dead, the heir named, the legatee, and the executor may ask that it be opened, with the intention that such disposition be declared valid, or the child omitted, or unjustly disinherited, and the heirs ab intestato, with the intention that it be declared void; wherefore, any one who may be interested may ask it, swearing that he does not do so in bad faith, but under the presumption that he has, that he is interested. This petition should be made to the regular secular judge, and in it be expressed that the testator died under this disposition, and the judge shall direct that it be brought immediately, in order that it be opened; and, it being in another place, he will set a time for him who may have it, in order that he may present it; and if he be contumacious, he shall pay to him who shall demand it the legacy which may be left to him in the testament, and the damage that his contumacy may cause him. Before proceeding to the opening, the judge shall require that the instrumental witnesses identify in his presence their signatures, that of the testator, and the sealed envelope which may inclose the testament, and that they depose as to the decease of the testator, because they may have heard of it or seen it; and, not knowing it, the notary shall certify to it, because he has seen it, giving certificate of identity, or because he was told of it in his house or neighborhood; because, before the

death be proved, the opening cannot be pro-. ceeded with. If the witnesses are dead, or are absent without their whereabouts being known, information shall be given of it, that at the time of the execution they lived and were at the place, and that they were persons who could testify; and the same as to the legality of the notary before whom it was executed, if he should be dead; and, if there should be any one who may know their signatures, he shall identify them, or they shall be proved. But if the witnesses are alive, and cannot all be had, it will be sufficient that the majority of them appear; and if this cannot be done, and the judge should understand that to omit the opening there might result damage to the parties in interest, he may call responsible men, and before them open the testament, have it copied and read, and, the responsible men signing it, have it closed and preserved, in order that, when the instrumental witnesses present themselves, they may recognize it in the prescribed form. If it should not be opened before the notary who witnessed its execution, he should acknowledge his signature and signet. The identification being made by the witnesses, and the envelope not being torn or erased, nor being suspicious by reason of any other cause, the judge shall have it opened in the presence of the notary and witnesses, and reading it first to himself in case the testator should direct that any part should not be read or published until a certain time, in which he should accede to his wishes, he will have it read and published in the presence of all; directing that it be made a public document, to which end it shall be filed in the records of the notary before whom it is opened, and to the rest (a copy) of the clause which relates to them, with the beginning and end of the testament. If the testamentary disposition should be written on common paper, but before the competent number of witnesses, the heir or executor shall apply to the judge presenting it to him, stating (the name of) the person who wrote it, that which passed at that time, the reason why it was made so, and without the presence of a notary, and that the testator died under it; and asking that, after taking the declaration of the witnesses and the acknowledgment of their signatures, that that disposition be declared a nuncupative testament, that there be given the proper copies to the parties in interest, and that it be filed in the record of the notary. The judge shall direct that the information be received, and, it being done, he shall proceed accordingly. If the testator manifested his will by word alone before the legal number of witnesses, the same proceedings shali be had, omitting, of course, the presentation of the common paper, which does not exist, and asking that the depositions of the witnesses may be declared to be the testament of the deceased."

Under these laws, any person interested could have a will probated without notice to the heirs, or other interested parties. Only