good either in law or equity, because the plaintiff has misconceived the nature of his remediable right, and has asked for a legal remedy when it should have been equitable, or for an equitable remedy when it should have been legal.-Kingston v. Walters, XIV-368; 93 Pac. 70. 2. The term "Cause of Action" defined.-Bremen Mining Co. V. Bremen, XIII-111-128; 79 Pac. 1133. 3. Under Sec. 4010, C. L. 1897, an action to quiet title and enjoin against waste on real property can be maintained on a complaint alleging plaintiff's ownership in fee, description of the land, defendant's claim of adverse interest and prayer for determination of defendant's claim, for the establishment of plaintiff's title and for an injunction to prevent waste; such complaint is good on demurrer challenging the jurisdiction of a court of equity.-Marquez v. Land Grant Co., XII-445-451; 78 Pac, 40. 4. There is but one form of action in the territory, the common law names having been abandoned under the Code, and it is immaterial what term is applied to describe a petition if the petition sets out a cause of action.-Field v. McMillen, XII-36; 73 Pac. 617. 5. A plaintiff may unite in the same complaint several causes of action, whether legal or equitable, where the same arose out of the same transaction, or transactions connected with the same subject of action-Field v. McMillen, XII36; 73 Pac. 617. 6. A contest over an election for county officers under Secs. 1726-36, C. L. 1897, is a special statutory proceeding, and not a "civil action" within the meaning of the Code. Gonzales v. Gallegos, X-372-400; 62 Pac. 1103. II. JOINDER. 7. The test in determining whether or not two actions are the same is: Will the same evidence support both actions? If the same evidence will support both actions then the institution of one is a bar to the other.-Bank v. Lewinson, XII-147-152. 8. Two causes of action, one at law, the other in equity, cannot be joined.-Finane v. Las Vegas Hotel & Imp. Co., III-411; 5 Pac. 725. III. CONSOLIDATION. 9. Courts may order the consolidation of causes in their discretion, the exercise of such discretion not be subject to reversal, except where there is a palpable abuse.-Lincoln-Lucky Mining Co. v. Hendry, IX-149-51; 50 Pac, 330. IV. DEFENSE. 10. An equitable defense may be set up in an action at law. El Capitan Co. v. Lees, XIII-407413; 36 Pac. 924. 11. Defendant city complained, in a mandamus proceeding to compel a tax levy to pay bond issue, that relator owned only 34 out of a total issue of 60 bonds, and was seeking to appropriate the entire levy to his demands, to the exclusion of other bondholders. Held, that this is a matter of which the city cannot complain; the other bondholders would be at liberty to avail themselves of the tax levy and have the proceeds marshalled and equitably distributed to all bondholders.-Ter v. Mayor, XII177-185; 76 Pac. 316. 12. An indemnity bond given by a third person to an accommodation maker of a promissory note is an equitable and not a legal defense and is not properly pleadable or shown in evidence in an action at law on the note under the common law brought by the holder who acquired the paper when it was overdue from the obligor.Lee v. Field, IX-435; 54 Pac. 873. ADMINISTRATOR. See Executors and Administrators. ADMISSIONS. See Evidence, Declarations, Confessions. 1. In a murder trial, evidence as to what defendants had said and done with reference to deceased and another, some little time before the murder, was properly admissible as showing animus. v. Clark, 99 Pac. 697. Ter. 2. Where a defendant secures evidence in his favor by an admission that an absent witness would so certify if present and such evidence is admitted over his objection that he is entitled to have such witness present. Held, not a viola tion of his constitutional right to face the witnesses testifying against him.-Ruiz v. Ter., X-120139; 61 Pac. 126. 3. An admission by one of the principals, a son of the accessory, that "my mother and Mr. G put up the job that we were to kill him," etc., relates not only to the guilt of the principals but also to guilt of the accessory, and is competent as to both issues.-Ter. v Dwenger, II-73. ADULTERY. See Criminal Law, Divorce. 1. Accused may be convicted though he is a single man and indictment alleges that he is married, where the evidence shows that the woman was married.-U.S. v. Cook, N. M., 103 Pac. 305. 2. In an indictment for adultery, under the laws of the United States, the indictment charged that the defendant "did unlawfully commit the crime of adultery by then and there having unlawful intercourse" and further charged that the de fendant was a married man; the indictment was held sufficient, notwithstanding the omission of the words sexual or carnal.-U. S. v. Griego, XI-392-402; 72 Pac. 20. 3. In prosecutions for adultery evidence of Occurrences several years before the indictment was found held properly admitted.[The facts proved not set out.]-U. S. v. Griego, XI-392-402; 72 Pac. 20. 4. When used with reference to divorce, adultery is to be taken in the canonical sense of that term, and it embraces the infidelity of the husband to the wife; but when considered with reference to the criminal law it imports such sexual intercourse as violates another man's bed.-U. S. v. Griego, XI-392400; 72 Pac. 20. ADVERSE CLAIM. See Mines and Mining. ADVERSE POSSESSION. See Ejectment, Landlord and Tenant, Limitations. 1. Formal "notice to quit" or to remove encroaching buildings not necessary where adverse party is a mere licensee.-Chaves v. Torlina, 99 Pac. 690. 2. One claiming title to land by adverse possession is estopped from also claiming to hold as tenant or licensee.-Chaves V. Torlina, 99 Pac. 690. 3. A mere controversial claim by one, that another is a trespasser, which claim is immediately denied by the other, no further thing being done or said, is not alone sufficient to stop the running of the statute.-Chaves v. Torlina, 99 Pac. 690. 4. Entry upon another's land without or color of title, and without in any way acknowledging the title of the owner, constitutes a trespass and can create no tenancy. Chaves v. Torlina, 99 Pac. 690. 5. Not necessary for true owner of premises which another is attempting to hold adversely, to give notice to quit and remove buildings in order to suspend the adverse possession.-Chaves v. Torlina, 99 Pac. 690. 6. An agreement by the owner of lots with the owner of adjoining property, upon which is a building encroaching upon the lots, that no objection would be made to the encroachment until such time as he might require the use of the lots, where such agreement or promise is without consideration it is a mere license revokable at will.-Chaves v. Torlina, 99 Pac. 690. 7. Possession by permission or license from the owner is not adverse, and cannot ripen under title, no matter how long continued or however exclusive it may be; the possession of the occupant under such circumstances being considered the possession of him upon whose pleasure it continues.-Bergere v. Chaves, XIV-352; 93 Pac. 762. 8. Adverse possession means actual, visible, exclusive, hostile and continued during the statutory time necessary to create a bar under a statute of limitations.-Johnston v. City of Albuquerque, XII-20; 72 Pac. 9. 9. See case for facts held not to constitute adverse possession. Johnston v. City of Aubuquerque, XII-20; 72 Pac, 9. 10. Possession by a tenant or agent is possession of the landlord or principal.-Johnston v. City of Albuquerque, XII-20; 72 Pac. 9. 12. To perfect a title by adverse possession such possession must continue without break or interruption, for the entire period prescribed by a statute of limitations. -Johnston v. City of Albuquerque, XII-20; 72 Pac. 9. 13. The possession must have been hostile at its inception, or if not so then such acts must be done as to make it hostile, and must so continue during the running of a statute of limitations.-Johnston v. City of Albuquerque, XII-20; 72 Pac. 9. 14. The adverse possession to justify a title vesting by limitations must be exclusive.-Johnston City of Aubuquerque, XII-20; 72 Pac. 9. V. 15. Where adverse possession is sought to be shown by having the land fenced for the period of time prescribed by the statute of limitations, such fence must be a real and substantial one, and the land must be completely enclosed, either by natural objects or an artificial enclosure. The building of a fence around land and then allowing it in a short time to go to decay is not such a possession as will give title by limitations.-Johnston v. City of Albuquerque, XII-20; 72 Pac. 9. 16. Statute of limitations creating title by adverse possession will not run against one in whose favor a right of action accrued while under disability and who brings the action within the statutory period after disability is removed.-Neher v. Armijo, IX-32535; 54 Pac. 236. 17. One holding under color of title for statutory period is not prohibited setting up the defense of adverse possession against all demandants not under disability by the fact that the grantors in the deed under which he entered derived their title from a common ancestor with plaintiff.-Neher v. Armijo, IX-325-35; 54 Pac. 236. 18. Title derived through open, notorious and adverse possession, by virtue of the statute of limitations is as perfect and absolute as though it were under a direct patent from the government.-Solomon v. Vrisarri, IX-480; 54 Pac. 752. 19. In order to divest the true owner of his title by the adverse possession of another, the law demands clear proof of: 1, an actual occupancy, clear, definite, positive and notorious; 2, it must be continued, adverse and exclusive; 3, it must be with an intention to claim title to the lands occupied.-Gentile v. Kennedy, VIII-347-54; 45 Pac. 879. 20. Where defendant had maintained open, adverse, continuous possession of land under claim of title in fee for more than ten years before suit brought, such possession was a bar to plaintiff's recovery under Sec. 1880, C. L. 1884.-Gildersleeve v. New Mex. Min. Co.. VI-27-40; 27 Pac. 318. 21. A mere trespass not amounting to a disseizin does not consti |