EXECUTORS AND ADMINISTRATORS (Continued). partnership affairs and wound them up, retaining as administrator all the proceeds. Held, that said surviving partner's administrator became a trustee of whatever portion of said property might be adjudged to belong to said first partner, and that that portion was no part of the surviving partner's estate nor subject to the requirements of statutes, supra, and that the administrator of the partner first deceased was entitled to maintain an action against the surviving partner's administrator for an accounting, without first presenting any demand. (Franklin v. Trickey, 282.) EXEMPTION. See Taxes and Taxation, 10, 11, 12. EXPERT. Testimony. See Evidence, 1. Witness, competency of. See Evidence, 2. FINDINGS. 1. FINDINGS-FACT MINGLED WITH CONCLUSIONS OF LAW-NOT REASON FOR REVERSAL.-While the finding that "the plaintiff and its predecessors and grantors in interest . . . have been, and the plaintiff still is, the owner and entitled to the possession of the lands and premises," appears in the findings as a conclusion of law, it is a statement of an ultimate fact, and not a mere conclusion of law, and ownership being one of the ultimate facts to be found under the issues, the fact that the finding appears among the conclusions of law is not a sufficient reason for reversing the judgment. (Curtis v. Boquillas Land etc. Co., 62.) 2. SAME SUFFICIENCY-ON ISSUE OF OWNERSHIP.-A finding that plaintiff and its predecessors in interest, since a certain date, have been, and that plaintiff still is, the owner and entitled to possession of lands, is sufficient in an action to recover land to sustain a judgment for plaintiff on the issue of ownership. (Curtis v. Boquillas Land etc. Co., 62.) See Appeal and Error, 6, 8, 9, 14. FINDING OF FACT. Based on conflicting evidence will not be disturbed on appeal. See See Appeal and Error, 15; Judgment, 13. Lien on crop, limited to. See Landlord and Tenant, 1. HOMICIDE. See Criminal Law, 14, 15, 16, 17, 18, 19, 20. IMPEACHMENT. See Criminal Law, 19. INDICTMENT. For aggravated assault, sufficiency. See Criminal Law, 23. For embezzlement, insufficiency. See Criminal Law, 7. See Criminal Law, 21, 22. INFANTS. 1. INFANTS CUSTODY - WELFARE OF CHILDREN - HABEAS CORPUS.Where both a corporate foundling hospital of the state of New York and residents of the territory of Arizona assert a legal right to the custody of certain children in the possession of the latter, the existence of a legal right on either side, while properly a factor to be taken into consideration in determining the welfare of the children, is not conclusive upon the court, the welfare of the children being the sole controlling, vital, and determinative fact. (New York Foundling Hospital v. Norton, 105.) 2. SAME SAME-SAME-SAME.-Where a corporate foundling hospital of the state of New York instituted habeas corpus proceedings to secure the custody of a number of children of tender years, of the Caucasian race, whom it had sent to Arizona, where its agents had placed them in the homes of poor, illiterate, and vicious half-breed INFANTS (Continued). Mexican Indians, from whom they were taken by American residents, the respondents, fit persons, by reason of their character, standing, and age, to have them in their custody and control, who cared for them in suitable homes, the best interests of the children are subserved by leaving them undisturbed in the custody of the respondents and dismissing the writ. (New York Foundling Hospital v. Norton, 105.) INJUNCTION. 1. INJUNCTION PLEADING AGAINST ENFORCEMENT OF JUDGMENT COMPLAINT SUFFICIENCY.-A complaint in an action to enjoin the enforcement of a judgment in forcible entry and detainer which fails to show whether or not an appeal has been taken from the judgment or any facts which would constitute ground for the granting of equitable relief is demurrable. (Beam v. Parks, 151.) See Justices of the Peace, 1; Railroads, 4; Water and Water- INNOCENT PURCHASER. See Deeds, 2. INSANITY. Question of fact for the jury. See Criminal Law, 15. INSTRUCTIONS. Error in, must be urged upon motion for new trial. See Appeal and Manslaughter. See Criminal Law, 20. On matter of law, not criticism of defendant's credibility. See See Trial, 2, 3. INTEREST. See Warrants, 5. INTERPRETATIONS. See Statutes, 6. INTERVENTION. See Corporations, 1; Practice, 1. JEOPARDY. Former. See Criminal Law, 11. JUDGMENT. 1. JUDGMENT-DEFAULT-FILING STATEMENT OF EVIDENCE-NOT JURISDICTIONAL REQUISITE REV. STATS. ARIZ. 1901, PAR. 1435, 1443, JUDGMENT (Continued). CONSTRUED.-Under paragraph 1435, supra, providing that a statement of the evidence shall be filed as part of the record of the case, where service has been made by publication and no answer filed, and paragraph 1443, supra, enumerating the papers which constitute the judgment-roll in cases of judgment by default, but not including such statement of evidence, a failure to file such statement would be an irregularity sufficient to reverse the judgment in a direct proceeding properly brought, but is not a jurisdictional defect rendering the judgment void. (Steinfeld v. Montijo, 250.) 2. SAME-JUDGMENT-ROLL - REV. STATS. ARIZ. 1901, PAR. 1443, CONSTRUED. The statute, supra, incorporates the common-law practice of including in the judgment-roll only such parts of the record as are needed to support a valid judgment. (Steinfeld v. Montijo, 250.) 3. SAME SETTING ASIDE-IRREGULARITIES.-A mere irregularity in the entry of a judgment, not jurisdictional, will not afford a basis for a court of equity to grant relief by declaring the judgment void. (Steinfeld v. Montijo, 250.) 4. JUDGMENT-DEFAULT-NEW TRIAL-APPEAL-DISCRETION OF TRIAL COURT REVIEW.-Upon appeal from a denial of a motion rendered in the absence of plaintiff's attorney to set aside a judgment and for a new trial upon the ground of the illness of said attorney, the appellate court, recognizing that such matters must rest largely in the sound discretion of the trial court, should not disturb its ruling, unless it clearly appears that such discretion has been abused. (Copper King of Arizona v. Johnson, 67.) 5. SAME-SAME-SAME-MOTION-AFFIDAVIT OF MERITS.-An affidavit of merits is a prerequisite to the granting of a motion to set aside a judgment by default and to grant a new trial for absence of counsel when the cause was called for trial, in order that injustice may not be done in granting a new trial where no valid cause of action or defense exists. (Copper King of Arizona v. Johnson, 67.) 6. SAME-SAME-MOTION TO SET ASIDE-AFFIDAVIT OF MERITS-SUFFICIENCY.—When a motion for new trial after judgment by default, in favor of defendants on their cross-complaint, recites that "plaintiff has stated the facts of its case fully and fairly to its counsel and is advised by them that it has a good defense to said actions," and is signed by the attorney of record below and in this court, and attached thereto is an affidavit of the former attorney stating that he is the attorney for plaintiff, that the default was caused by illness and inability to be present at the time set for trial, and "that all the facts stated in the foregoing motion for a new trial are true in substance and fact," such affidavit is not sufficient in that it fails to state that the plaintiff has a substantial and meritorious defense, and in what such defense consists. (Copper King of Arizona v. Johnson, 67.) JUDGMENT (Continued). 7. SAME-SAME-SAME-SAME-SHOULD BE SIGNED BY PARTY.-An affidavit of merits upon a motion to set aside a judgment by default should preferably be made by the moving party, and if made by the attorney a valid reason why it is not made by the party should be stated. (Copper King of Arizona v. Johnson, 67.) 8. SAME-SAME-SAME-SAME-PLEADINGS.-Unverified pleadings from which a court can determine whether a defense is properly pleaded, but from which it cannot determine whether such defense is substantial and meritorious, will not supply the want of a sufficient affidavit of merits. (Copper King of Arizona v. Johnson, 67.) 9. JUDGMENT-ENTERED IN MAY TERM AS OF OCTOBER TERM-HARMLESS ERROR. Where the court erroneously treated the October term as being open and existing simultaneously with the May term, and entered judgment in the May term as of the October term, the error was harmless, plaintiff in error not being thereby denied any of his rights. (Smith v. King of Arizona Mining etc. Co., 228.) 10. JUDGMENT-MOTION TO SET ASIDE-REV. STATS. ARIZ. 1901, PAR. 1478, MANDATORY.-Paragraph 1478, supra, providing that "all motions for new trials, in arrest of judgment or to set aside a judgment shall be made within five days after rendition of verdict or judgment, if the term of court shall continue so long; if not, then before the end of the term," is mandatory, and the court has no power to vacate, set aside, or modify its judgment at a term subsequent to the one at which the judgment was rendered. National Metal Co. v. Greene etc. Co., 192.) 11. SAME-SAME-PROPERLY REFUSED-REV. STATS. ARIZ. 1901, PARS. 1088, 1323, 1478, CITED AND CONSTRUED.-Under paragraph 1478, supra, providing that all motions to set aside a judgment shall be made during the term, paragraph 1088, supra, making the return of the sheriff prima facie evidence of the facts stated in the return, and paragraph 1323, supra, providing that, in suits against any incorporated company, the summons may be served on a local agent representing such company in the county in which suit is brought, the trial court had no jurisdiction to set aside the judg ment after the term, in an action against a corporation, where the sheriff's return showed service on the local agent of the corporation and there was evidence corroborating the return. (National Metal Co. v. Greene etc. Co., 192.) 12. JUDGMENT-MOTION TO SET ASIDE-REV. STATS. ARIZ. 1901, PARS. 1088, 1323, CITED.-Under paragraph 1088, supra, making the return of the sheriff on a process prima facie evidence of the fact stated therein, and paragraph 1323, supra, providing that in a suit against a corporation the summons may be served on a local agent of the corporation in the county in which the suit is brought, allegations |