MCMILLAN, J. (after stating the facts). The civil law of Mexico was the law in force in the territory of New Mexico at the time of the execution and delivery of the contract made by Gold and Perea, setting apart the lands and premises in question for the uses and purposes of the people of the city and county of Santa Fé, and to be used by them as a public. street. This contract must therefore be tested by the rule which obtained in such matters under the civil law. McCracken v. Hayward, 2 How. 612, 11 L. Ed. 397. It is true that the sovereignty and title of the territory continued in all streets, roads, alleys, and public places, where the public domain was disposed of, with or without reservation; but not so where a municipality sought to acquire title to or rights in property for street or highway purposes. In all such cases the terms of the grant limit the title. A servitude is as well known to the civil law as an easement is to the common law; and servitudes were acquired, under the civil law, in the same manner as other property. It is also laid down as one of the tenets of the civil law that he who is the owner of a thing, and has the free administration of it, may grant a servitude, and that a servitude may be established on conditions and for a limited time. Schmidt, Civ. Law Mex. arts. 376, 390, 394. The civil law also provides that a servitude is extinguished by its voluntary relinquishment, or by the fulfillment of the condition upon which it depends. Schmidt, Civ. Law Mex. art. 395, §§ 2, 4. In the case at bar the contract under which the city of Santa Fé took possession of the premises in question, and used it for street purposes from 1871 down to 1899, is a carefully drawn instrument, clearly intended to grant an easement or servitude, and to limit the use of the premises described therein to street purposes. The language used is susceptible of no other 'construction. Fully quoted, the provisions and limitations are as follows: "And by these presents sells, bargains and conveys, in favor of said party of the second part, for the use and purposes of the people of the county and city of Santa Fé, and to be used and owned by them as a public street, alley-way or road forever. To have and to hold to the said party of the second part, for the use and purposes above set forth, the said fourteen and one-half feet of land, passing over the property of the said party of the first part, from and to the limits as above recited, and its successors, forever." The contracting parties, Gold and Perea, granted only the right to use and pass over their property for street purposes, and nothing more, thereby creating a limited servitude. The contract aid not convey a fee, but created a servitude under the civil law,-a right to pass over the lands of the grantors, along the strip specifically described, for street purposes. There can be no ambiguity or doubt touching the language used, and the maxim of the civil law need not be invoked which provides that,

where doubt arises as to the meaning of a contract, the intentions of the parties are to govern, rather than the strict signification of the language employed. The abandonment of the street by resolution of the city council of the city of Santa Fé, duly adopted, approved, and published, operated to extinguish the servitude. "An easement in a piece of land laid out and used as a public highway is extinguished on its vacation by legislative authority." Wheeler v. Clark, 58 N. Y. 267. The abandonment was supplemented, on the part of the city, not only by a conveyance of the premises to a third party, but by fencing it, and by its use and occupation for purposes inconsistent with its use as a public street. "Ceasing to use an easement, accompanied by an act clearly indicating an intention to abandon the right, has the same effect as a release." Suydam v. Dunton, 84 Hun, 506, 32 N. Y. Supp. 333. The grant under the contract in question being only a civil-law servitude or a common-law easement, it follows that the fee to the 141⁄2 feet remained in Gold and Perea, in the same proportions and to the same extent as it existed at the time of the making of the contract, to wit, 5 feet and 8 inches in Gold, and 8 feet and 10 inches in Perea. The title which Gold had in the premises in question, and that adjoining the street on the east, having passed, by various mesne conveyances, to the plaintiff, Staab, vested in Staab all of the title held by Gold in the street or alley way, and no more. And, notwithstanding several of these conveyances were bounded on the west by the street in question, it did not carry the boundary line to the center of the street, as the grantor could convey no more than that to which he held title. "A deed bounding upon a highway prima facie carries the title to the center of the road, unless it appears to have been owned by another, in which case the language found in the deed is satisfied by a title extended only to the roadside." Hoag v. Pierce, 65 Hun, 424, 20 N. Y. Supp. 224. Gold's title was limited as to boundary on the west by "the old wall of the heirs of Manuel Sanchez," which appears as a stipulated fact herein, and as also appears by the deed from Gold to Zadoc Staab, the grantor of the plaintiff Staab herein. "Where the bed of an ancient road belongs to the government, a conveyance of land bounding thereon does not carry title to the center of the roadway." Dunham v. Williams, 37 N. Y. 251. Staab's title is therefore limited by the description in the deed from Luis Gold to Zadoc Steab, wherein the premises are described as "including all the property lying between the old wall of the property of Probst Kirchner, on the east, and the old wall of the property of the heirs of Manuel Sanchez, deceased, on the west; being the same property sold by William Breeden, master in chancery, under decree of the district court for said county of Santa Fé, on the 18th day of June, 1873." This old wall was in the street 5 feet and 8

inches, and to this extent Gold had title at the time he joined with Perea in the contract granting the servitude which authorized the city to open and maintain the street in question. The description quoted clearly limits the boundary of the premises on the west. "Where a deed describes the premises conveyed as the same land by a third person to the grantor, it conveys only the estate that the grantor derived from such third person." Kennedy v. Farley, 82 Hun, 227, 31 N. Y. Supp. 274. The street having been abandoned by the city, and the servitude thereby extinguished, Staab, as the owner of the fee, was entitled to the immediate possession of the 5 feet and 8 inches on the easterly side of the street; and, defendant Blain being in possession and claiming title thereto under the deed from the city, ejectment would lie. "One who has title to the land of a public highway, subject to the public easement, may maintain ejectment therefor by showing that the defendant has taken exclusive possession, or imposed upon the land some burden inconsistent with the public easement." Westlake v. Koch, 134 N. Y. 58, 31 N. E. 321. The judgment herein will therefore be modified by changing so much of the description of the land therein described as fixes the width of the premises at "seven feet and three inches" to "five feet and eight inches," and, when so modified and changed, the judgment is in all things affirmed.

MILLS, C. J., and PARKER and CRUMPACKER, JJ., concur.

(Supreme Court of New Mexico. Feb. 25, 1901.) FRAUD-PRESUMPTIONS-ATTACHMENTAFFIDAVIT.

1. Where the facts upon which fraud is predicated consist as well with honesty as with dishonesty, the law presumes in favor of honesty.

2. Facts in this case examined, and held not to support the allegation of fraudulent concealment in the attachment affidavit.

(Syllabus by the Court.)

Appeal from district court, Bernalillo county; before Justice J. W. Crumpacker.

Action by the First National Bank of Albuquerque against Lesser & Lewinson. Judgment for defendants, and plaintiff appeals. Affirmed.

A. B. McMillen, for appellant. W. B. Childers, for appellees.

PARKER, J. This was an attachment proceeding brought by appellant against appellees, charging past and prospective fraudulent disposition and concealment of property. At the close of plaintiff's case, the trial court, on motion of appellees, directed a verdict in their favor. Counsel for the respective parties then stipulated that this

court may render final judgment upon the evidence submitted for appellant in the trial court, either sustaining or discharging the attachment, as in the opinion of this court may be warranted by the evidence. It is to review the action of the court in directing a verdict for appellees, and entering judg ment thereon, that this appeal is brought, and the sole question is presented whether the evidence for appellant was sufficient to support a verdict in its favor. If so, under the stipulation judgment is to be rendered by this court sustaining the attachment; if not, the judgment below was correct, and ought to be affirmed. The facts shown by appellant's evidence are substantially as follows: The defendants, Lesser & Lewinson, were a co-partnership composed of Louis Lesser and Sussman Lewinson. They began the dry-goods business in the city of Albuquerque about the year 1888, and continued in the same business, banking with the plaintiff bank, from that time up to the date of the attachment. Their deposits in the bank show an average of about $4,000 per month. The firm continued in business up to the date of the attachment, which was on January 14, 1896. The last deposit was made January 7, 1896. On the morning of January 14, 1896, there was a balance to the credit of said firm of $266.56, which was withdrawn on the same day, after 10 o'clock a. m., and before the attachment, which was prior to 12 o'clock. Immediately after the attachment, and before noon of the same day, the defendant firm filed a deed of assignment, conveying all its property to A. E. Walker, assignee, for the benefit of creditors. At the beginning of the year 1895. Louis Lesser, a member of the firm, made a statement to M. W. Flournoy, the vice president of the bank, showing that his firm was worth about $35,000. In February, 1895, one member of the firm made a statement to some New York creditors that the net worth of the firm was from $31.000 to $32,000. During the year 1895 the defendant firm purchased goods for their store, which were not paid for, and the claims for which were proved against the assignee, amounting to $25,291.55, of which sum $20,047.45 was purchased subsequent to July 1, 1895. The only property of the defendants turned over to or found by their assignee was the stock of dry goods attached by the plaintiff, and the book accounts, the whole being appraised at the sum of $12,703.82. There was no money delivered to the assignee. No attempt is made by appellant to show what disposition was in fact made of the money realized from the sale of goods during the year preceding the attachment, the simple fact appearing that a large amount of merchandise was owned and a large amount acquired on credit, and not paid for, during that period, and a certain amount remained and was turned over to the assignee of appellees on the day of attachment, leaving a discrepancy

of many thousands of dollars unaccounted for. Neither is any attempt made to show what was in fact done with the money realized from sales during the seven days next prior to the attachment, nor the $266.56 withdrawn from the appellant bank on the morning of the attachment and assignment. It simply appears that this money was not turned over to the assignee under the assignment. Appellant rests its case upon the proposition that, these large amounts of merchandise and these sums of money having been traced to appellees, they will be presumed to continue in the possession of the same, or the proceeds thereof, until the contrary is made to appear, and, consequently, the same not having been turned over to the assignee, they will, in the absence of explanation, be presumed to have fraudulently concealed the same.

If the appellees did in fact conceal the money mentioned, it would be difficult to understand how the same could be done otherwise than fraudulently; for concealment for the purpose of preventing creditors from reaching assets would, under all ordinary circumstances, necessarily include a design to defraud them. But the plaintiff is met with the well-recognized proposition that, “if an honest motive can be imputed equally as well as a corrupt one, the former should be preferred." Wait, Fraud. Conv. § 6; Bump, Fraud. Conv. p. 562; 14 Am. & Eng. Enc. Law (2d Ed.) 512, notes 2, 3; Lyman v. Cessford, 15 Iowa, 229; Dallam v. Renshaw, 26 Mo. 533; Herring v. Richards, 1 McCrary, 570, 3 Fed. 439; Gregg v. Sayre, 8 Pet. 244, 8 L. Ed. 932; Bank v. Schumann, 63 How. Prac. 476. This proposition is otherwise stated: "If the facts upon which the conclusions of fraud are predicated may consist with honesty and purity of intention, that construction ought to be given." 14 Am. & Eng. Enc. Law (2d Ed.) 512.

Applying this proposition to the facts in this case, it seems clear to us that the judgment of the court below was right. The first fact presented by appellant is the receipt of large amounts of merchandise by appellees, which is not accounted for in the assignment, nor are the proceeds thereof. It appears from the records that appellees kept books of account, and that counsel for appellant demanded inspection of the same. An examination of these books would necessarily disclose what became of the goods, and the proceeds of the sales of the same, if the books were honestly kept. Thus, it would be made to appear whether the goods were sold for cash, and, if so, who got the money; how much, if any, was sold on credit; and whether the accounts had been collected. But these books are not offered by appellant, and there is nothing before us throwing any light upon the actual conduct of their business by appellees. For aught that appears. appellees may have sold enough goods on credit, for which they never re

ceived payment, to account for the discrepancies mentioned; or they may have made bad investments sufficient to consume all of the large amount unaccounted for. The appellant has seen fit to furnish us no light on the subject, when the evidence was at hand, and no inference can be drawn, it seems to us, except in favor of the honesty of appellees' transactions. On the other hand, if the books were dishonestly kept, and a por tion of the cash received systematically ab stracted, this fact must be capable of demonstration from the books themselves. Yet not a word is offered pointing in this direction. The same may be said in regard to the fact of no deposits having been made for seven days next previous to the assignment. If sales were made during those seven days, the books must show the amount of cash received, and what became of the money. If the money went into improper hands, or if the books fail to show what became of the money, a condition might arise requiring explanation by appellees, and so with the deposit which was withdrawn. If the books fail to show what became of this money, or show that appellees retained it, a very different case would be presented; but no such proof is offered. This money, as well as that received during the seven days prior to the assignment, may have all been used for perfectly lawful purposes, for aught we know from this record. Not a single fact appears which points unequivocally to concealment, or which may not as well be accounted for in consonance with honesty as with dishonesty. It may be that appellants systematically robbed their business of money, and secreted the same from their creditors; that their transactions were reeking with fraud; but there is no evidence before us from which we can reach such a conclusion. On the other hand, their transactions may all have been honest. We cannot, from this record, conclude what the real fact is. The facts consisting as well with honesty as with dishonesty, the law presumes in favor of honesty. The judgment of the court was evidently correct, and will be affirmed; and it is so ordered.

MILLS, C. J., and McFIE and MCMIL LAN, JJ., concur. CRUMPACKER, J., having tried the case below, took no part in this decision.

(10 N. M. 669)

In re VEEDER. (Supreme Court of New Mexico. Jan. 25, 1901.) ATTORNEY AND CLIENT - DISBARMENT INFORMATION-SUFFICIENCY-VERIFICATION. 1. The charges in an information for the disbarment of an attorney should be definite, specific, certain, and duly verified.

2. The verification of an information in a proceeding to disbar an attorney may be made on information and belief, but the sources of affiant's information must be definitely stated.

provides "that the legislative power of the territory, shall extend to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of this act. All the laws passed by the legislative assembly and governor shall be submitted to the congress of the United States, and if disapproved shall be null and of no effect." Section 10 of that act provides that: "The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and justices of the peace, shall be as limited by law: provided, that * ** * the said supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction." Section 1851 of the Revised Statutes of the United States provides: "The legislative power of every territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States." "It has passed beyond the stage of controversy, into final judgment," that the people of the United States, as sovereign owners of the national territories, have supreme power over them and their inhabitants. Murphy v. Ramsey, 114 U. S. 15, 44, 5 Sup. Ct. 747, 29 L. Ed. 47. This power is exercised by the general government, through the congress of the United States. The constitution of the United States, the organic act under which a territory is organized, and acts supplemental | or in addition thereto, form the constitution of a territory. First Nat. Bank v. Yankton Co., 101 U. S. 129, 133, 25 L. Ed. 1046; Ferris v. Higley, 20 Wall. 375, 380, 22 L. Ed. 383; In re Attorney General, 2 N. M. 58; Clayton v. Utah, 132 U. S. 636, 10 Sup. Ct. 190, 33 L. Ed. 455. Any act of the territorial legislature inconsistent with these acts of congress is unconstitutional and void. Ferris v. Higley, supra.

It is, however, contended by counsel for defendant in error that no power has been granted territorial courts to pass upon and declare the constitutionality or unconstitutionality of an act of the territorial legislature; that power, it is alleged, being by congress expressly reserved to itself by section 7 of the organic act quoted above. But to this contention we cannot agree. Were this an original proposition, we would have no hesitancy in declaring ample power to exist in the courts of this territory to deal with the question presented. There is, however, ample authority for such a conclusion. In Hornbuckle v. Toombs, 18 Wall. 656, 21 L. Ed. 966, it is said: "The jurisdiction of the territorial courts is, collectively, co-extensive with and correspondent to that of the state courts." In Ferris v. Higley, supra, it is said: "The common-law and chancery jurisdiction here conferred on the district and supreme courts is a jurisdiction very ample and very well understood. It includes almost every matter, whether of civil or criminal cognizance, which can be litigated in a court of justice."

This proposition was fully gone into, and decided in favor of the power, in the case of In re Attorney General, 2 N. M. 58. See, also, People v. Clayton (Utah) 11 Pac. 206; Williams v. Same (Utah) 21 Pac. 398; Clayton v. Utah, 132 U. S. 632, 10 Sup. Ct. 190, 33 L. Ed. 455.

It is urged by counsel for defendant in error that section 7 of the organic act amounts to a reservation to congress of all power of control over territorial legislation. This contention, it seems perfectly apparent, is not well founded. Congress has already limited legislative power to such acts of legislation as may not be "inconsistent with the constitution and laws of the United States." Any territorial legislation that exceeds this limitation, congress has already said, in effect, is void. Why, then, should it be necessary for congress to again annul it? It is void ab initio. But this is not an open question. It is said in Clayton v. Utah, supra: "It is true that in a case of doubtful construction the long acquiescence of congress and the general government may be resorted to as some evidence of the proper construction or of the validity of a law. This principle is more applicable to questions relating to the construction of a statute than to matters which go to the power of the legislature to enact it. At all events, it can hardly be admitted, as a general proposition, that under the power of congress, reserved in the organic acts of the territories, to annul the acts of their legislatures, the absence of any action by congress is to be construed to be a recognition of the power of the legislature to pass laws in conflict with the acts of congress under which they were created." And in People v. Clayton and Williams v. Same, supra, it is expressly held that the language used by congress in limiting legislative power in territories has no such effect as is contended for by counsel for defendant in error, and that the power to pass upon the constitutionality of a legislative act rests in the courts.

This court has in numerous cases assumed to have the jurisdiction claimed for it by plaintiff in error, and the assumption of such jurisdiction necessarily involves a decision that such jurisdiction exists. Some of these cases are cited: Territory v. Baca, 6 N. M. 420, 30 Pac. 864; Perea v. Barela, 5 N. M. 458, 23 Pac. 766; Id., 6 N. M. 239, 27 Pac. 507; Coler v. Board, 6 N. M. 88, 27 Pac. 619; U. S. v. De Amador, 6 N. M. 173, 27 Pac. 488; Lincoln, Lucky & Lee Min. Co. v. First Judicial Dist. Ct., 7 N. M. 486-493, 38 Pac. 580; Territory v. Ortiz, 8 N. M. 154, 42 Pac. 87; In re Wilson, 10 N. M. - 60 Pac. 73, 48 L. R. A. 417. See, also, Money, Dig. tit. "Constitutional Law," where all the New Mexico cases are cited.

There is no contention on the part of the defendant in error that the act of March 11, 1899, of the territorial legislature, mentioned above, does not contravene the provisions of