complaint sets up what under the commonlaw rules would have been a good declaration in trespass on the case, and also asks for two remedies, to wit: (1) A judgment for the sum of $2,000; and (2) that the plaintiff be decreed to have a prior right to the use of the waters of Mineral creek, and that the copper company be enjoined from polluting the waters of said creek. The record also discloses that a verdict was returned by the jury which tried the cause in December, 1905, while nothing was done about securing the restraining order until March, 1906, more than two months after the jury had passed upon the cause. Indeed, the record does not show that a permanent injunction has ever been granted in the case.

By section 186S of the Revised Statutes of the United States the district courts of this and other territories possess chancery as well as common-law jurisdiction, and at one time it was a serious question as to whether a territorial Legislature had the right to adopt a Code of Civil Procedure; but on April 7, 1874, this right was given by act of Congress, but attached to it is the proviso that by the enactment of a Code no person should be deprived of the right of trial by jury in cases cognizable at common law. There is no doubt, as stated above, but that the complaint in this case, down to the prayer for relief, sets up a state of facts which was "cognizable at common law," and which entitled the plaintiff to the right of a trial by jury; and under the acts of Congress just above referred to the Legislature could not, even if it had been so disposed, which we do not even for a moment intimate, have taken away the right. The mere fact that the defendant in error united in one complaint the necessary allegations and prayers for legal and equitable relief does not deprive him of his right to a jury trial on the legal issues; and this has been the holding, and we think properly, in nearly all of the Code states. Pomeroy's Code Remedies, §§ 59, 86; Hill v. Smith, 27 Cal. 476; Potter v. Froment, 47 Cal. 165; Hudson v. Caryl, 44 N. Y. 553; Sternberger v. McGovern, 56 N. Y. 12; McPherson V. Featherstone, 37 Wis. 632; Hughes v. Dunlap, 91 Cal. 385, 27 Pac. 642. And the highest federal court has held likewise in a case very similar to this which came up from Montana, when it was still a territory, and its courts were organized under a law about the same as ours. The syllabus in the case of Basey et al. v. Gallagher, 20 Wall. (U. S.) 670, 22 L. Ed. 452, which was decided in 1874, says: "Although by the organic act of the territory of Montana common-law and chancery jurisdiction is exercised by the same court, and by legislation of the territory the distinctions between the pleadings and modes of procedure in common-law actions and those in equity suits are abolished, the essential dis

tinction between law and equity is not changed. The relief which the law affords must be administered through the intervention of a jury, unless a jury be waived. The relief which equity affords must be applied by the court itself." And the same rule has been held to be the law in Hornbuckle v. Toombs, 18 Wall. (U. S.) 648, 21 L. Ed. 966, Hershfield v. Griffith, 18 Wall. (U. S.) 657, 21 L. Ed. 968, and Davis v. Bilsland, 18 Wall. (U. S.) 659, 21 L. Ed. 969.

It will be observed that all of these federal cases were decided before the passage by Congress of the act of April 7. 1874, which expressly saves to a litigant the right of trial by jury. It is true that the plaintiff in error quotes in support of his contention the case of Lynch v. Metropolitan Ry. Co., 129 N. Y. 274, 29 N. E. 315, 15 L. R. A. 287, 26 Am. St. Rep. 523, and several federal cases; but the Lynch Case seems to stand alone, and is, we think, overwhelmed by the number of cases which hold to the contrary, while all of the federal cases cited, except the first, refer to damages as to infringements of patents, which class of cases is governed by statute-sections 4919 and 4921, Rev. St. U. S. [U. S. Comp. St. 1901, pp. 3394, 3395], providing that damages for infringement may be adjudged either in law or equity. The first case cited by counsel for plaintiff in error is that of Barton v. Barbour, 104 U. S. 126, 26 L. Ed. 672; and, as we understand that case, all that the court holds is that a receiver of an insolvent railroad, where the decree appointing him provides that he has authority to defend all actions brought against him by leave of the court, cannot be sued as such receiver in another jurisdiction, unless the order of the court by which he was appointed receiver for leave to bring the suit be first obtained. The true rule seems to us to be that in a suit for damages, where an injunction is also asked, if the suit is primarily for the injunction and the right to damages is merely incident to and dependent upon plaintiff's right to the injunction, the court may without the intervention of a jury assess the damages already sustained; but, if the action is brought primarily for the recovery of a money judgment, it is triable by a jury, notwithstanding the plaintiff also asks for an injunction against the further violation of his rights, or an injunction pendente lite. 24 Cyc. 122.

2. The next error assigned which we need to consider is that the court below erred in overruling defendant's motion for a continuance. The record shows that the complaint in this case was filed on July 13, 1904. On August 13, 1904, a special answer, in the nature of a plea in abatement, was filed. stating that the name in which defendant was sued was not its true name. On September 9, 1904, answer was filed, and on September 12, 1904, leave was given to

amend the complaint by correcting the name, of the defendant by interlineation. The case appears to have been set for trial on the jury trial list for the June, 1905, term of court, for a motion was made to strike the cause from the jury trial docket, which motion on June 30, 1905, was overruled, and on July 6, 1905, the case was again set in open court for trial for the second Monday of the next ensuing term of court-i. e., the December, 1905, term. On December 6. 1905, motion for security for costs was filed, and on the 10th of the same month such security was filed, and three days later a motion and affidavit for continuance was filed, which motion was presumably overruled, as the cause was tried; the trial commencing on December 13, 1905. This court has repeatedly held that the granting or refusing of a continuance in any case rests in the sound discretion of the court, and will not be ground for error unless the court grossly abuses such discretion. Beall v. Territory, 1 N. M. 507: Territory v. Padilla, 12 N. M. 1, 71 Pac. 1084.

We can see no abuse of discretion on the part of the court in the case at bar in refusing the motion for continuance. The case was first set on the jury trial docket for the June term, A. D. 1905, and on July 6, 1905, in open court, was reset for the second Monday of the following December term of court. We know of no greater publicity that can be given as to when a case will be tried than to set it in open court. It is true that the affidavit for continuance sets out that the attorneys for the defendant below had no notice of such setting until November 22, 1905: but it seems to us that they should have had such notice long before that day, for an attorney who has cases on the docket should be in attendance at court while it is in session, or at least should have some one there who will advise of the action of the court in any matters in which he may be interested. We will also take judicial notice of the fact that the December term, 1905, of the district court, sitting within and for Socorro county, began on December 4, 1905, and that the second Monday of said term was December 11th. Consequently from November 22d, when the attorneys for the defendant below admit that they had notice of the setting of the case to December 11th, was nearly three weeks-ample time, it seems to us, to prepare for trial. The first affidavit for continuance was not filed until December 13, 1905, two days after the case was set for trial. We see no error in the refusal of the court to grant the continuance asked for.

3. Five of the alleged errors relate to the admission of evidence objected to by plaintiff in error. Each of these objections, as shown in the motion for a new trial and assigned as error, is in the most general terms, and does not point out the particular question and auswer objected to. In order to ascertain

what they are, we would have to search the entire evidence and the rulings of the court most carefully, and endeavor to ascertain which questions and answers the plaintiff in error objected to, and even then we might not select all of those which were regarded as harmful by its counsel. It is a well-settled rule of this court that we will not review alleged erroneous rulings of the trial court upon the admissibility or nonadmissibility of evidence, unless they are specifically pointed out. In the case of Anderson v. Territory, 4 N. M. 213, 13 Pac. 21, this court lays this down as the rule, and quotes approvingly the law as laid down in Grant v. Westfall, 57 Ind. 126, as follows: "It has been repeatedly held by this court that when a party complains of an alleged erroneous decision of the court trying the cause, either in the exclusion or admission of evidence, he must point out in his motion for a new trial with reasonable certainty the particular evidence admitted or excluded; otherwise, the court below need not, and this court will not, consider such alleged erroneous decision." And we have held the same as late as the case of Territory v. Cordova, 11 N. M. 367, 68 Pac. 919, in which case authorities are cited. We see no good reason for departing from the law as heretofore announced by this court, and we will not consider the objections to the introduction of the testimony, except in so far as we are obliged to do so in passing on the giving and refusing of instructions by the court to the jury.

4. The other alleged errors relate to the measure of damages. These alleged errors are based upon the admission of certain evidence by the court, the refusal of the court to give to the jury certain instructions asked by plaintiff in error, and the giving of certain instructions asked by the defendant in error, to all of which objections were duly made and exceptions saved. One of the exceptions is that it was error to permit evidence to go to the jury as to the damages caused by the tailings remaining on the lands, because the water which contained the tailings was turned upon such lands by the defendant in error. The evidence discloses that the spring of the year 1904 was very dry, and that much vegetation was destroyed by reason of the prevailing drought; that defendant in error knew that tailings from the mill of plaintiff in error was in the water which ran down Mineral creek and into his irrigation ditch, but that he thought that much loss would be prevented by irrigating his alfalfa, trees, vines, and vegetables with such water, even if polluted, as without such irrigation they would be completely destroyed.

The instruction given by the court in regard to this point is numbered 7, and is as follows, to wit: "(7) You are instructed that if you believe from the preponderance of the evidence the plaintiff has acquired the right to use the water of Mineral creek for the irrigation of his farm prior to the pollu

tion of the same by defendant corporation by allowing the tailings from its quartz mill to flow therein, then you are instructed that it devolved upon the plaintiff, before using the said water for irrigation, to use ordinary care in determining whether said water, so polluted, would injure the vegetation on his farm or would injure the soil thereof, and, failing to exercise said ordinary care, he cannot recover in this case, unless you further find from a preponderance of the evidence that he was compelled to use said water for irrigation, and in the exercise of ordinary care and prudence he elected to use said water in its polluted condition, as calculated to result in less injury to him than to fail to irrigate his said land at all, in which event you will not refuse to award plaintiff such damages as he has suffered, notwithstanding he may have known, or with ordinary care should have known, the damaging results of such use of such water in such polluted condition; but in no event would the plaintiff' be entitled to greater damages than would have accrued by not using the water so polluted." This instruction covers the law as we understand it. It is the duty of a person to prevent an injury to his property, if he can do so, and, if he cannot prevent such injury entirely, to take such reasonable steps as are in his power to reduce the damages. This rule is admirably stated in 13 Cyc. 71, 72, and is supported by citations of many cases in notes 43 to 46, inclusive, on those pages. The rule is: "Where an injured party finds that a wrong has been perpetrated on him, he should use all reasonable means to arrest the loss. He cannot stand idly by and permit the loss to increase, and then hold the wrongdoer liable for the loss which he might have prevented. It is only incumbent upon him, however, to use reasonable exertion, and the question in such cases is always whether the act was a reasonable one, having regard to all the circumstances of the particular case. The application of this rule sometimes has the effect of enhancing the damages, rather than reducing them; but, where a reasonable and bona fide attempt has been made on the part of the plaintiff to reduce the damages, * it does not relieve the defendant from a full recovery of the damages claimed." Plaintiff in error asked the court to instruct the jury that, if the defendant voluntarily turned the water carrying the tailings into his land, he was bound to know the effect of so turning the water containing the tailings into his land, and therefore could recover no damages on account of the injury done by the tailings to his land. The court very properly, we think, declined to give this instruction, as the question was: Was he justified in turning the water on his land, with the view of trying to prevent the greater damage which would occur if he did not so irrigate it?

Another claim of the plaintiff in error is that the court committed error in allowing

testimony to go to the jury as to the amount of money and also to the percentage of damage occasioned by the deposit of the tailings on the land, and as to the value of the fruit trees in the orchard and grapevines growing in the vineyard, and destroyed by the tailings; the plaintiffs in error claiming that they had no value except as a part of the inheritance, and that the true measure of damages was the difference in the value of the land prior to the death of the trees and vines and its value subsequent to that time. The authorities on this point are somewhat in conflict. Some of the states have admitted evidence both ways on the question, and the rule contended for by the plaintiff in error is not the only or universal one. We believe that the damages may be proven in either way. What the law really requires "is that such damages be allowed as, in the judgment of fair men, directly and naturally resulted from the injury for which the suit is brought. This is the rule which obtains in civil actions for damages. They have their foundation in the idea of just compensation for wrongs done." Hetzal v. B. & O. R. Co., 169 U. S. 37, 18 Sup. Ct. 259, 42 L. Ed. 648. The damages to vines and fruit trees "is to be estimated with reference to what they are worth on the premises in their growing state, and not as taken up and removed from the place." Montgomery v. Locke, 72 Cal. 75, 13 Pac. 401.

The instruction given by the trial court' in regard to the damages seems to us to be eminently fair. It reads as follows: "(6) Now, if you find from the preponderance of the evidence in this case, if any, that the plaintiff operated and used the waters of said Mineral creek for the purpose of irrigating his farm, and the crops, trees, and vines thereon, prior to the bringing of this suit, and prior to the time the defendant began depositing the tailings from their mill there, if they so did, that the depositing of such tailings in said creek by said defendant company, if you so find, polluted the water of said stream, and that such tailings were washed down by plaintiff's land and in his irrigating ditches during the year A. D. 1904, and that thereby the plaintiff's trees, vines, crops, and land were injured, then and in such event you shall find for plaintiff in such sum or sums as will compensate him for the damages sustained by him, if any, during the said year 1904, prior to the bringing of this suit, and claimed by him in his complaint therein, in no event to exceed the amount of damages claimed by plaintiff in his complaint, namely, two thousand dollars." In a well-considered case in Kansas involving the destruction of fruit trees, the court said: "It is contended that the question should have been confined to the value of the farm as a whole before and after the injury, leav ing the jury to compute the damages by deducting one from the other. While this is undoubtedly the regular and proper method

of arriving at such damages as cannot be itemized and definitely measured in detail, it does not preclude the use of the best evi-❘ dence which the nature of the case affords. Where a thing, whether it be a building, a tree, or shrub, is destroyed by a wrongdoer, the most natural and best measure of damage is the value of the thing destroyed as an appurtenant to or part of the realty, and ordinarily the value of the thing destroyed would be the measure of the injury to the freehold." M., K. & T. Ry. Co. v. Lycan, 57 Kan. 635, 47 Pac. 526. And in another case the Supreme Court of Kansas also say: "A further claim is made that at most only nominal damages could be awarded under the evidence. The plaintiff showed that some 150 apple trees had been destroyed and that they were of the value of from $5 to $10 each. The defendants' witnesses testified that the farm on which the orchard was growing was as valuable after the fire as it was before. It is competent to prove damages such as were here claimed by showing the value of the trees destroyed (M., K. & T. Ry. Co. v. Lycan, 57 Kan. 635, 47 Pac. 526; M. C., Ft. S. & M. R. R. Co. v. Perry, 65 Kan. 792, 70 Pac. 876), or by showing the depreciation of the value of the real estate." A., T. & S. F. Ry. Co. v. Geiser, 68 Kan. 281, 75 Pac. 68. We are of the opinion that this is the proper rule, and that the damages can be proved in either or both ways, and that this is the rule which is sustained both by reason and by the weight of authority.

We have carefully examined the instructions given by the court in this case, and we see no error in them, and we have also examined the instructions asked by plaintiff in error, and which virtually ask the court to instruct the jury to return a verdict in favor of the defendant below, and we see no error in the refusal of the court to give them.

An examination of the record discloses that the verdict as returned by the jury, and the judgment entered in the lower court against the defendant, was in the wrong name, to wit, the Mogollon Gold & Copper Mining Company, and not against the Mogollon Gold & Copper Company, as is shown by the special answer on page 12 of the transcript of record to be the true name of the defendant company; and according to the authority vested in this court to make such amendments as may be necessary to do justice between parties to the suit, it is ordered that the judgment of the lower court in the name of the Mogollon Gold & Copper Mining Company be affirmed in the name of the Mogollon Gold & Copper Company, and the cause is remanded to the lower court, with directions to execute the judgment as amend ed; and it is so ordered.

POPE, MANN, ABBOTT, and McFIE, JJ., concur. PARKER, J., having tried this case below, took no part in this decision.

(14 N M. 293)

UNITED STATES v. TALLMADGE et al. (Supreme Court of New Mexico. Aug. 30, 1907.) INDICTMENT-FINDING BY GRAND JURY-IMPEACHMENT.

Members of the grand jury, under our statute, will not be permitted to impeach an indictment duly found, returned in open court, and filed as such, by testifying as to what was said by the prosecuting officer, while advising with them in his official capacity.

[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 53.] (Syllabus by the Court.)

Appeal from Fifth Judicial District Court; before Justice Wm. H. Pope.

Benjamin H. Tallmadge and others were indicted for conspiracy. Judgment vacating the indictments, and the United States appeals. Reversed.

W. H. H. Llewellyn, E. L. Medler, and U. S. Bateman, for the United States. Catron & Gortner and J. M. Hervey (A. M. Stevenson and Daniel Prescott, of counsel), for appellees.

MANN, J. At the November, 1905, term of the district court of the Fifth judicial district, sitting for the trial of causes arising under the Constitution and laws of the United States, the defendants were indicted upon various charges concerning the public lands of the United States, charging conspiracy to defraud the government, perjuries, subornation of perjury, and other offenses of like nature; the indictments being numerous, but all relating to like transactions referring to certain land entries and proofs under the laws of the United States. To some or all of the indictments appellees filed pleas in abatement, setting up the specific grounds, to some of which grounds demurrers were interposed and sustained by the trial court, and upon the remaining issues appellant made answer, and the issues thus formed were submitted to a jury. The issue thus tried consists of alleged misconduct of the United States district attorney: (1) In urging to and upon the grand jury that the interests of the government of the United States required and demanded that said grand jury should find an indictment against said defendants; (2), that he stated to said grand jury that the evidence theretofore considered by them was amply sufficient upon which to find indictments against said defendants; (3) that he stated to said grand jury that, if they did not find and return a true bill or true bills against said defendants, upon the evidence theretofore given before them, that he, the said Llewellyn, would have the grand jury dismissed. Upon the trial of these issues the court permitted members of the grand jury to testify as to what was said by the United States district attorney in the grand jury room; in fact the sole evidence upon the issues raised by the

plea was the evidence given by the grand jury and by the United States district attorney. This evidence was admitted over the objection and protest of the United States, and exceptions to the court's rulings upon the admission of such evidence were duly taken at the time. The jury found for the appellees as to all the indictments. A motion for a new trial was heard and sustained as to certain indictments and overruled as to others, and final judgment rendered against the United States abating the indictments, from which judgment the United States appeals.

We do not deem it necessary to discuss but one of the questions of law raised by the assignment of error and discussed by counsel in their briefs, as we think it controlling under the circumstances of this case. If the members of the grand jury and the district attorney are competent witnesses to the transactions and occurrences concerning which they testified in this case, then the verdict of the jury on the issues joined could not be disturbed. Section 986 of the Compiled Laws provides: The grand jury may, at all reasonable times, ask the advice of the court, the Attorney General or the district attorney of the county, and whenever required by the grand jury it shall be the duty of the district attorney of the county to attend them for the purpose of framing indictments, or of examining witnesses in their presence but no district attorney, sheriff or other person shall be permitted to be present during the expression of opinions. or giving of their votes upon any matters before them. Section 987 provides that every member of the grand jury must keep secret whatever he himself, or any other grand juror, may have said, or in what manner he or any other grand juror may have voted, on a matter before them, and provides a penalty for a violation of such provisions. Section 988 provides that a grand juror may, however, be required by the court to disclose the testimony of any witnesses examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given before them, by any other person, upon a charge against him for perjury, or in giving his testimony, or upon his trial thereof. The foreman and each member of the grand jury, before entering upon their duties as such, are required by law to take an oath that they will diligently inquire and true presentment make of all public offenses against the people of the United States or this territory, committed, or triable in this county, of which they shall have or obtain legal evidence; that they shall present no person through malice, hatred, or ill will; not have any unpresented through fear, favor, or affection, or for any reward or promise or hope thereof; but that in all their presentments or indictments they shall present the truth, the whole truth, and noth

ing but the truth, according to the best of their skill and understanding. The law also makes it imperative upon the court to instruct the grand jury as to the nature of their duties as such, and provides that their indictments, when found, must be returned by them in open court, and the indictments must be filed with the clerk of the court and remain in his office as a public record.

It is a serious question, then, whether indictments so found, presented, and filed may be impeached by members of the grand jury, for such impeachment would involve the testimony under oath of a grand juror that he and his fellow jurors had violated another oath, solemnly administered, by voting a true bill upon other considerations beside legal evidence, and that the indictment which had been solemnly presented and filed as a public record did not present the truth, the whole truth, and nothing but the truth, according to their skill and understanding. It is a principle well established by eminent authorities that, where there are statutory provisions (such as ours above quoted) prescrib ing the instances in which grand jurors may testify as to what occurred before them, such statutes are exclusive, and grand jurors may testify in no other than the prescribed cases. 17 Am. & Eng. Ency. of Law, 1295; People v. Thompson, 122 Mich. 413, 81 N. W. 344; People v. Lauder, 82 Mich. 109, 46 N. W. 956; State v. Johnson, 115 Mo. 480, 22 S. W. 463; Tindle v. Nichols, 20 Mo. 326; Mo. 326; State v. Baker, 20 Mo. 339; State v. Hamilton, 13 Nev. 387; Hall v. State, 134 Ala. 91, 32 South. 750. "At common law a grand juror could not ordinarily become a witness as to facts occurring or testified to in the session of the grand jury, but by modern statutes this disability has been removed to some extent." 1 Elliott on Evidence, § 641, citing numerous authorities. The only exceptions to the common-law rules made by our statutes are those contained in section 988, and the evidence offered in the trial of the plea in abatement did not come within these exceptions. That the common law prevails in this jurisdiction, where it is applicable to conditions, except where it has been abrogated by statutes, has been well settled by this court. In Hall v. State, 134 Ala. 90, 32 South. 750, a case very similar to the case at bar, where the district attorney was accused of using language to about the same effect as is alleged was used by the United States district attorney in this case, the court says, at page 113 of 134 Ala.. at page 757 of 32 South.: "Certainly to permit a grand juror to testify that one or more of the jury did not vote for the finding of the bill of indictment or matters influencing the action of members of the grand jury would be not only a violation of his oath as a grand juror, but would be destructive and subversive of the grand jury as an institution of our judicial system, and destructive of that