could not be considered.-Ter. v. West, XIV-546; 99 Pac. 343.

209. Assignments of error as to the admissibility of evidence, which are in general terms and do not point out the particular questions and answers objected to, will not be considered on appeal.-Mogollon v. Stout, XIV-245; 91 Pac. 724.

210. The overruling of a motion for a new trial in a criminal case, not assigned as error on appeal, is not before the court on appeal.-Ter. v. Church, XIV-226.

211. Unless exception is filed or taken to the assignment of error the opposite party shall be deemed to have joined in error upon the assignment of error so filed.-Jones v. Chandler, XIII-501-504; 85 Pac. 392; 13 Ann. Cas. 710.

212. The appellate court will not consider questions not raised by the assignments of error.-Chaves V. Lucero, XIII-368-380; 85 Pac. 233; 6 L. R. A. (N. S.) 793.

213. Where the subject matter of an exception becomes immaterial in the progress of the cause, it cannot be assigned as error, even though the ruling was erroneous.-Cunningham v. Springer, XIII-259-289; 82 Pac. 232.

214. Assignment that court erred in certain paragraphs of its charge, without specifying or pointing out the errors will not be considered an appeal.-Territory v. Clark, XIII-5961; 79 Pac. 708.

215. An assignment setting forth as error that appellant filed two separate claims in the Probate Court, both being acted on, and appeal being taken from one of the decrees, the record not showing which of the decrees had been appealed from is made too late when brought up for

the first time in the Supreme Court. -Gillett v. Chavez, XII-353-359; 78 Pac. 68.

216. It was error for the court to refuse to allow two counsel for a single defendant to address the jury. -Ter. v. Sherron, XI-515-517; 70 Pac. 562.

217. Errors relied on, on appeal, should be separately pointed out before they will be considered by the appellate court, and an assignment as error that "the court erred in admitting improper, irrelevant and incompetent evidence in the trial of said case," is too general.-Ter. v. Cordova, XI-367-370; 68 Pac. 919.

218. Where in a criminal case there are no formal assignments of error, and the motions for a new trial and in arrest of judgment do not point out specifically wherein error exists in the court's instructions general exceptions will not be considered in the appellate court.Ter. v. Guillen, XI-194-210; 66 Pac. 527.

219. The statute does not require assignments of error to be made in a criminal case, but it is the better practice to do so, in order that vital error alone may be brought to the attention of the courts.-Ter. Guillen, XI-194-201; 66 Pac. 527.

V.

220. In order for appellee to have appellate court act on errors alleged to have been committed against him, he must present same by proper assignment, or they will be deemed to have been waived.-Neher v. Armijo, XI-67-86; 66 Pac. 517.

221. Errors complained of in a referee's report must be called to the attention of the trial court by exception, or they will be deemed to be waived.-Neher v. Armijo, XI-6783: 66 Pac. 517.

222. An assignment of error which is directed against all the findings of fact made by the trial court is too general and will be disregarded.-U. S. v. Rio Grande Dam & Irrigation Co., X-617-35; 65 Pac. 276.

223. An assignment of error alleging "The verdict is not supported by the evidence" is too general, and in an ordinary case would not be considered, but in a "capital case" the court did consider it, as counsel for appellant indicated what he deemed "to be error intended to be raised by this assignment."-Ruiz v. Ter., X-120-133; 61 Pac. 126.

224. An assignment of error and as "The judgment of the court is contrary to the law," is too general and will not be considered on appeal.-Cevada v. Miera, X-62-66; 61 Pac. 125.

225. An assignment of error that the verdict of the jury is against the law, cannot be entertained.Schofield v. Ter., IX-526-39; 56 Pac. 306.

226. Assignments of error that do not point out specifically the errors complained of, but which are general and leave it to the court to examine the entire testimony and charge of the court, will not be considered.-Schofield v. Ter., IX-52634; 56 Pac. 306; Pearce v. Strickler, IX-467; 54 Pac. 748.

227. By the practice act of 1891 it was clearly the intention of the legislature that common law causes should be reviewed by writ of error and not by appeal, and this act is not in conflict with either the organic act or acts of Congress.-Atch. Top. & S. F. Ry. Co. v. Martin, VII158-61; 34 Pac. 536.

228. It is not error for the court, in a prosecution for rape to read to the jury the section of the statute saying that one is guilty of rape who has sexual intercourse with a female who "through idiocy, imbecility or unsoundness of mind, either temporary or permanent," was incapable of giving consent, even "though there be no evidence to sustain the instruction, where the court afterward in its charge fully explained the law governing the crime.-Ter. v. Edie, VI-555-60; 30 Pac. 851.

XII. BRIEFS.

233. Statements of facts made by counsel in a brief, if undisputed, are considered by the appellate court the same as admissions made on the trial of a case.-Territory v. County Commissioner, XIII-89; 79 Pac. 709.

234. On appeal by writ of error, a statement of errors in appellant's brief is not in legal effect an assignment of errors; unless a formal assignment of errors be filed within the time prescribed by law or granted by leave of court, the writ of error will, on motion, be dismissed. -Lamy v. Lamy, IV-29; 12 Pac. 650.

XIII. DISMISSAL, WITHDRAWAL

OR ABANDONMENT.

235. When a writ of error is improperly directed, and the defendant in error is cited to appear before this court under the name of R. H. Pierce, and not under the name of R. H. Pierce Company, who was plaintiff in the court below, the case will be dismissed on the ground that the real defendant in error has not been cited to appear before this court, and is not before us.-Pierce v. Richardson, XIV-340; 93 Pac. 715.

236. When pending an appeal an event occurs without fault of appellee which renders it impossible for the court, should its decision be favorable to the appellant, to grant him any effectual relief whatever, the court upon that fact being brought to its knowledge, will not proceed to formal judgment, but will dismiss the appeal.-Hubbell v. Dame, XIII-467-478; 85 Pac. 473.

237. An order of the District Court made in obedience to a mandate of the Supreme Court is not reviewable by appeal; and the only

point to be considered is whether or not the District Court has followed the mandate; if the mandate has been followed by the District Court the appeal will be dismissed.-Champion v. Rice, XIII-236; 82 Pac. 359.

238. If, pending an appeal, the law which confers jurisdiction on the court to hear the same is repealed, the appeal will be dismissed. -U. S. v. Sena, XII-397-414; 78 Pac. 58.

239. Where the trial court signs and seals a bill of exceptions at a later date than authorized by statute, he exceeds his authority, and, on motion, the bill of exceptions will be stricken from the record.— Haynes v. U. S. IX-519; 56 Pac. 282.

240. A writ of error will not be dismissed merely because assignments of error being based upon alleged errors occurring during the trial and none on the record proper there is no bill of exceptions upon which they can be based.-Den, & R. G. Ry. Co. v. U. S., IX-309; 51 Pac. 679.

241. An appeal in cases where the appeal acts as a stay of execution it is the duty of the District Clerk, under Sec. 2476, C. L. 1884, without any application on the part of appellant to file with the clerk of the Supreme Court a transcript of the record without delay, and his failure to do so will not subject appellant to a dismissal of his appeal. -Ter. v. Hicks, VI-596-601; 30 Pac. 872.

242. Where a defendant convicted and under sentence for a criminal offense breaks jail and escapes custody pending a hearing in the Supreme Court his appeal will, on motion, be dismissed.-Ter. v. Trinkhouse, IV-300; 13 Pac. 341.

a

243. Where appellant files transcript of the record but not, as required by Sec. 2189, C. L. 1884, at least ten days before the first day of the term to which the appeal is returnable, a motion to dismiss the appeal and affirm the judgment on that ground, not made until after the transcript was filed, will be denied.-Armijo v. Abeytia, V-533-36; 25 Pac. 777.

244. Where appellant has not delivered to appellees attorney copies of his brief as required by Rule 23, the appellate court will not on that account dismiss the appeal and affirm the judgment, where it also appears that appellant was a poor man and had been unable to raise money for the purpose earlier, this being good cause in view of Sec. 2189, C. L. 1884, for not affirming the judg ment without a hearing.-Armijo v. Abeytia, V-533-38; 25 Pac. 777.

245. The rule of court requiring pages of the transcript to be numbered and of a certain size is directory, and the record should not be stricken out upon failure to comply with same.-Farnish v. Mining Co., V-234; 21 Pac. 82.

246. Where a writ of error has not been sued out within one year from judgment in the lower court, on motion the writ will be quashed and the cause stricken from the docket.-U. S. v. Gwyn, IV-635; 42 Pac, 167.

247. An appeal will not be dismissed for appellant's failure to file more than one copy of the record, as required by Rule 13, neither the rule nor any statute requiring a dismissal for such failure.-Mora v. Schick, IV-301; 13 Pac. 341.

248. Appearance by defendant in error and consent to an order grant

ing plaintiff in error further time to file his brief does not waive the former's right to move to dismiss the writ; nor is such consent by defendant in error a waiver of his right to move to dismiss the writ of error for a cause in no way connected with the time in which the brief is required to be filed by rules of the Supreme Court.-Lamy v. Lamy, IV-291; 13 Pac. 178.

249. Sec. 2189, C. L. 1884, providing for the dismissal of appeals and writs of error and affirmance of judgment for failure of appellant or plaintiff in error to assign errors on or before the first day of the return term, unless good cause be shown to the contrary, applies as well to equity as law cases.-Shinnock v. Kuhn, IV-234; 13 Pac. 424.

250. A failure to comply with Rule 21 of the appellate court requiring plaintiff in error or his agent or attorney to file the necessary affidavit therein prescribed, is no ground for dismissal of the writ of error, the rule having been superseded and in effect abrogated by the practice act of 1880.-Tex., S. F. & N. Ry. Co. v. Saxton, III-443; 6 Pac. 206.

XIV. DOCKETS, CALENDARS
AND PROCEEDINGS BE-
FORE HEARING.

251. Provision of Sec. 2, Chap. 114, Laws 1905, as to issuing of citation by the clerk of the District Court applies only to ordinary citation and not to any notice for publication issued in lieu thereof, this latter being issued out of the appellate court where such cause is pending on appeal and being signed by the clerk of the Supreme Court.Baca v. Anaya, XIV-20; 94 Pac. 1017.

252. In certain cases the appellate court may, exercising an inherent power possessed by all courts of general superior jurisdictions, extend the time within which citation may be served on appeal.-Baca v. Anaya, XIV-20; 94 Pac. 1017.

253. An appeal taken in a criminal case more than thirty days before a regular term of the Supreme Court is returnable at the ensuing term.-U. S. v. Sena, XII-397-412; 78 Pac. 58.

254. Chap. 99, Sess. Laws, 1901, authorizing appellants to docket appeals at any time before motion on the part of the appellee to docket and affirm judgment, does not in any manner modify or change the practice touching the preparation, settling and signing of a bill of exceptions. Questioned whether this chapter applies to criminal cases.-Ter. v. Hall, XI-273-278; 67 Pac. 732.

255. The year from final judgment limited for appeal or writ of error does not begin to run till determination of motion for new trial, though judgment was entered on day verdict was returned, under rule requiring it, where the party failed to give notice of intention to file motion for new trial.-Pearce v. Strickler, IX-46-47; 49 Pac. 727.

256. By Sec. 2189, C. L. 1884, all appeals taken less than 30 days before the next term of the appellate court are returnable at the next succeeding term; the act of Feb. 24, 1887, as amended by act of Jan. 5, 1889, making it the duty of the clerk of the Supreme Court to print a calendar of cases pending in the court not less than 5 nor more than 10 days before the meeting of the court did not change the return day

of appeals, and cases placed on the calendar less than 30 days before the beginning of the term are not "cases pending" within the meaning of the act, and will, on motion, be stricken from the docket.-Cunningham v. Conklin, VII-127; 34 Pac. 43.

257. On writ of error a record filed ten days before the first day of the term, including either the day of filing or the first day of the term is a substantial compliance with the rule, and meets the requirements of the statute.-Albuquerque v. Zeiger, V-518; 25 Pac. 787.

258. A motion to strike the record and bill of exceptions from the files should state specifically and not in general terms, the grounds upon which it is based; it should be complete in itself and set forth in clear and distinct paragraphs the specific grounds upon which the court will be asked to consider it.Evans v. Baggs, IV-67; 13 Pac. 207.

259. A motion in the appellate court to strike the record from the files will not be entertained unless all requirements of Rule 23, Supreme Court, have been complied with; the motion must be filed on second day of the term, supported by affidavits, and notice served upon the appellant or his counsel 24 hours previous to the filing of such motion that it will be filed, stating the grounds.-Evans Baggs, IV-67; 13 Pac. 207; Mora v. Schick, IV-301; 13 Pac. 341.

V.

260. Rule 24, Sec. 1, of the Supreme Court requires that in cases of review of a judgment of the District Court by appeal or writ of error, the proposed record and bill of exceptions shall be settled and signed by the District Judge who presided at the trial of the case, and