6sa

J'E)ERAL REPORTER,

vol. 50.

and be understood to relate to starfing up a train unexpectedly to brakemen situated as theplaintitl' is alleged to have been. This count seems to be sufficient. That ,the statutes of limitation of the forum, and not those of the place, generally prevail, is not, and could not well be, disputed. M'Elmoyle v. Cohen, 13 Pet. 312. But that the effect of the law of the province is to give a cause of action for a year only, as some contracts do, is urged. Riddlesbarger v. Insurance 00.,7 Wall. 386. The action, however, is founded upon the common law, which is understood to prevaU;everywhere, and not upon any peculiar law of the place, which would' ha",e. to"be pleaded. The statute relied upon is set out in the pleas-a&lla general law of the said province of Quebec," Ilthat all suits, fora:ny'damage or injury sustained by reason of the railway, shall be instit'\ed within twelve months next after the time that such supposed damage"is sustained, and not afterwards." This seems to be an statute of limitation, not affecting the cause of action in any way, hut only the time within which a suit upon it, in the courts where the 'lawp:revails, must be brought. The pleas are therMore bad here. Bad pleas *ould be good, enough for a bad declaration, but as one counti1'l' i tMs declaratioIl is good, and the pleas profess to answer both, the pleas must be sustained; and, asa bad replication is good tlnough for a bad 'plea, the demurrer to the replication must be overroledl. Demurrer tt:! pleas sustained, and those pleas adjudged insufficient. Demurrer ro replication overruled.

CoLORADO

CENT.

CONSOLIDATED

:MIN.

Co. tJ. TtmCK.

(C#buit Court of Appeals, Efghth. Circuft. May 9, 1892.)
No. 49.

L JInoill .A1m "MTNING-En:cTllfENT-DEFlIII11111S. . . In;eiectPient.for:a miningplaim the issue raised by the pleadings was wbetbel' plaintiA' was the owner and entitled ,the possession of an alleged veinbaving its apex within his location,after the same had passed under the side lines of an ad" joining claim. Ilf:ld, that it "was not & "change of the issue to defend upon the ,rounq tilat both partie If ha.d the apex of separate veins within the boundaries of theirelliims,",VvhiOh veins, 'in descending, became united within the side lines of defendant's claim i and that therefore defendant was entitled to /lold all of the vein from the PQitit of Junction .downward. . B. DEFENSES. . Defendaut.wasalso entitled to set up that the alleged vein, having Its outcrop In plaintiff's olabn. was n9taSeparate and independent vein, but simply one of numer. OUs ore'obannels, which together formed one broad lode having Its apex partly in plaintiff's- and· partly jD;i "defendant's olaim; and it was immaterial that these defenseswere inconsistent in the sense that proof of one WaS necessarily disproof of the other,' "for in 1 ejeotment defendant. may set up anything tending to dlaprove plaintiff's generalolaim and right of possession;, $. B.UIll:-AD1QJNIlS'9 CL,uMs-FOLLOWIN9 VBINS, The'right of"a mine owner, under Rev. St. $ 23221 to follow a vein whoseapexlles within the;bOilndaties of" his 'olaim beyond the vertiCal side lines thereot and within the liUli!. of othe,r claims. is not confined to cases in which the claim thus entered is held Uijd.er a junior patent or cerWioate, and the relative datea of the pateDts or . oertiificatea are immaterial

GOLOBADO CENT. CONSOLIDATED

KIN.oa. 11. roRex.

889

S.

" lWn. Where a TeI.D uJl5ln which a location rests, after being followed for a couiderable distance, forks and paBSes out through the side line of the looation, 80 the out.crop of one fork is on an adjoining claim, this whole fork belongs to the owner of the latter claim.
Bilt:E-EoTEOTJIlENT-VBRDICT-DBSCRIPTJON.

In ejectment to recover a mining vein the complaint described the premill8s .. "so much of said Aliunde Tunnel Lode No. II mining claim and premises as liM beneath the depth of 800 feet beneath the surface of the ground, north of the north side line of said Aliunde Tunnel Lode, carryiDIl said north line down vertically, and from thenoe on the pitch of sald lode northwestwardly, and measuring thence along the liDe of said Aliunde Tunnel Lode No. 2, a distance of 600 feet next west of the northeast line of said claim." Held. that a verdiot in favor of plaintiff for "the lode and premiBel desotibed in the complaint" described the premllle8 with sum.· eient accuracy. The faot that the court in entering final judgment did not award to plaintiff all the premises to which he was entitled under the verdiot, affords no ground of com· plaint to defendant. Where the jury, a.fter retirinlf, are reoalled at their own request, and givlln add!· tienalinstruotlona, in the absence of counsel, and there is no showing as to ,the reaBOns for suoh absence, or whether any efforts were made to secure their presence, It will be presumed on appeal that the court acted with relfUlarity and propriety.

&. Bilt:B-J"UDGMENT-APPBAL.

f;

,APPEAL-PRESUMPTION&.

In Error to the Circuit Court of the United States for the District of Colorado. Affirmed. Statement by THAYER, District Judge: This was an action at law, brought by the defendant in error to recover possession of a mining lode or vein known as the" Aliunde Tunnel Lode No.2," situated in the Argentine mining district, Clear Creek county, state of Colorado. The plaintiff in error, who was defendant in the lower court, is the owner and is in possession of three mining claims known respectively as the "Colorado Central," the "Subtreasury" and the "Colorado Central Extension" claims. The Aliunde claim belongs to the defendant in error,a.nd adjoins the Colorado Central claim on the south, and at its northern end also abuts against the Subtreasury claim. The accompanying diagram (plat B) shows with sufficient accuracy the relation of the several claims to each other, their general direction, and the manner in which they adjoin, and in some places overlap on the surface of the earth. ' ,

t

,1'.. . ,

"""

t..

",...

/

AUUHDt

are lai,? Illountainous!l:lp!1 extentgy,ndges atrd ravlOes. thegranita-or"asit is llf!ually termed, the t'cQuntry rock "-in which the ore fissures are found lies frolP 50 to 100 feet !!>1:t.M . . .... ...the., . , and.. ..e.·.r.ed to. .. a slideoi' loose detached sbC/we,lt IS and was a d1f,the true outcWP Ofia{ vein. at surface of the' On the trial in thedowei the defendant in error niafrNJThtiif;'afid' offered considerable evidence tending to show. that he lines of the Aliunde had the apex of a mineral bearing vein within the of that vein forsomedistance within the tiSt'irida'rll\s' 01' 'his c1aitn;,·tbat the vein became divided a short distance below the surface of the country rock, forming a north and south tel'l1?:ed,) as' sflo""n: Ull' th" accompanying diagram, (plat A,) the _being · '
Ii.!'" ",I',

is.

"

.LIN COLO. CENTRAL

-Thatthe north vein had a dip to the northwest or about 70 degrees froxn the horizon, and at · distance 01 about 60 teet below the outcrop or apex passl,d under the s0l1th side lin'e"df the Cplorado Central claim. That the south vein descende'li,into the earth with a slight dip to the northwest, but eventually passe<1under the south of the Colorado Central, and on its strike and"dip also became united with the north vein t,underneath the Colorado Central.c1airn. On the other hand, the plainin error stoutly maintained before the jury (apdthis seems to have been its .. contention) that both Colorado Central and Aliunde on . one and the same broad lode, which was from 100 to 200 feet wide, and confined two porphyry walls; that neither party to the had tbelJ.pex of this brolld·,Jode exclusively tbeirl'l'ispective claims, and that, in view of within the boundaries that fact, the defend.rii in. error had no right, under the statutes of the United States, to follow his alleged vein outside of aver·

COLORADO e£Nir.:CONSOLID.A1'El) iIIN.OO.

w.

TURCK.

891

tical :plane extended downward ;thhtugh the side lineeof his claim. In addition to the main defense last mentioned, the plaintiff in error presented three other defenses in .the form: of which defenses, it may he conceded,were not distinctly outlined by the· pleadings,and all of which the circuit court overruled. Without pretending to state the exact of the several instructions lastrefetred to, it will suffice to say that the court was asked to declare in sUbstance-F'irBt,tbat, if the plaintiff below had the apex of what might be termed an independent vein within his own side lines, and the defendant· below also had the apex of an independent vein within its side lines, and the twoveins, descending downward, became united within the side lines of the Colorado Central claim, then the defendant was entitled to hold all of the vein from tlie point of junction downward, because it was the owner of the senior patent; Becond,that the proprietor of the Aliunde claim was in no event entitled to recover his vein within the side lines of the Colorado Central claim, because the latter claim was patented before the discovery on which the Aliunde patent rested; and, third, that the proprietor of the Aliunde claim was not entitled to recover his vein under the Colorado. Central claim (the latter being held under the oldest patent) if the jury believed the Aliunde lode" to be a part of the same lode as that on which the Colorado Central patent issued." As the jury found against the plaintiff in error on its main contention that there was only one broad lode. covered by the several claims, and as that issue was submitted under directions from the court that are not challenged, the most important questions that we have to determine con<:em the action of the lower court with referen(',8 to the three other defenses above outlined. Of the four claims above mentioned the Colorado Central claim appears to have been held under the oldest patent. The Aliunde claim, however, was patented before the Colorado Central Extension claim. a. J. Hughes and R. S. Morrison, for plaintiff in error. Willard Teller and Harper M. Orahood, for defendant in error. Belore CALDWELL, Circuit Judge, and SHIRAS and THAYER, District Judges.
THAYER, District Judge, after stating the case llS above, delivered the opinion of the court. The circuit court appears to have refused the two inatructions embodying the first of the three propositions above stated, on the ground that such instructions changed the issue which the defendant below had made during the progress of the trial, and for the further reason that the evidence was insufficient to warrant the jury in finding that there WC1re separate Rnd independent veins, one of which had its within the Aliunde claim and the other within the side lines of the Colorado Central. We are satisfied that the trial court erred in so far as its refusal to give the instructions was based upon the ground that they changed the issue and presented a defense which the defendant was not entitled to make. The action was in ejectment, and the issue raised by the pleadings was whether the plaintiff in the lower court W88 the

·...-!'l_ ' ..

..

1

.·

to the possession of. the alleged vein having its apex Aliunde claim, after·thesame had passed under the Colorado In support of the negative of that issue the defendthe right to showanyfaot whioh, disproved the allegation of right of possession. It was at liberty to say that the allegedlein;having its outcrop within the Aliunde claim was not a separl!-teand independent vein, but simply one of numerous ore ohannels, whiohtogethel' formed one ,broad lode having itsiapex partly in the Aliunde;olaituiand partly in the Colorado Central; or, failing in that had the right to show that both parties had the apex of separate Neins,within the boundaries of their claims, whioh veins, in desoending, became united within the side lines of the Colorado Ceutral., ,It: istrutdhat these propositions were inconsistent in the sense that the proof of one necessarily·dispro\Ted the other, but, considering the nature,of,tbe actioll,wedo not regard that as an insuperable objection to .theallowance of both defenses. It frequently happens in ejectment suits,,:thata defendant is permitted to derive title from several independentsoufces, and to defend his possession by setting up several conflicting.6utstandingtitles. When, as in ejectment or replevin, a party is permitted to allege generally that he' is the; owner and entitled to the possession of certain property,the opposite party must be allowed to. show 'any state of facts that tends to disprove such assertion. The second on which the trial court based its refusal to give the instructions asked by the defendant is entitled to more weight. The defense, that thet;e il'lstructionsraised was predicated on the last clause of section 2386 of the Revised Statutes of the United States, which is as' follows: "Where t!#d t>r more' veins in.tersector cross each other, priority of title shall govern. and such 'prior location shall be entitled to all ore or mineral contained within the space of intersection; but the subsequent location shall have thEl'llglJt of way through the spat,'e of intersection for the purposes of the working of the mine. ,And where twooriIDore vaJna unite. the oldest or prior location shall take the vein below the poInt of union. inclUding all the space of intersection."

!;Ifue trial i:lqurt directed the jur:y to disregard the defense based on this section of the statute, not only because it changed the issue, but for the" ,reason, ,Rsstated in itscijarge, that there was no evidence to locate the putcrop to any considerable extent of a separate vein within the Qentral side lines, and for the reason that, if there was such a it was impossible to Bay from the testimony whether it had the Colorado Central side lines or within the side lines of adjoining it on the northwest. which were held under Plltents junior to th/:l Aliunde patent. In other words, the circuit court appellrs have been of the opinion thRt the developments made and proven by the defendant, company were insufficient to establish the existence of,·a meaning of section 2336, which in its descent united with the Aliunde, vein. It is manifest, we think, that there was no evidllnQe to prove the existence of the vein or the outcrop in ques-

COLORADO CENT. CONSOI.IDATEDHIN. CO. 'V. TURCK.

893

tion, except such inferences as might be drawn from the developments in the Grant raise, the Herrick raise, the O'Mally raise, and the shaft sunk in the Jim Hall tunnel. These raises were put up some time after the owner of the Aliunde in the development of what is termed his "north vein" had passed under the Colorado Central's south side line, and they were put up, it seems, by the defendant company, not for the purpose of obtaining ore, but solely for the purpose of demonstrating either that there was but one wide lode between the porphyry walls, or that one fork of the vein on which the owner of the Aliunde was working had its outcrop within the Colorano Central side lines, and that the defendant was entitled to the vein below the point of junction. The Grant raise and the Herrick raise were put up at about the same inclination,apd together extended from the defendant's third level nearly to the surfaoe of the country rock. The Herrick raise was much shorter than the Grant raise, and was merely an extension of the latter in the direction of· the surface. It was not claimed by the defendant company that the Grant raise had been put up on what might be termed a continuous streak or seam from the third level, nor was there any satisfactory ev.idence that such alleged ore streak as had been followed in that raise fell into the Peterson stope below the third level, into which the Aliunde vein had been traced and had descended. It was proven, however, by the defendant that a seam or vein varying from half an inch to an inch in thickness had been traced in the Herrick raise nearly to the surface,but the plaintiff's evidence tended strongly to show that the so-called "vein " in the Herrick raise was purely local; that it was not followed downward in the Grant raise, and did not extend for any considerable distance on either side of the raise in the direction of its strike. Nostoping had been done by the defendant along the Herrick raise or the Grant raise. Moreover, the Herrick raise, as well as the O'Mally .raise·, had been put up so near to the north boundary line of the Colorado Central claim that it was somewhat doubtful, under the testimony, whether the ore channels that had been followed in these raises had their apex within the Colorado Central side lines or within the lines Qf other junior claims next adjoining it on the north. The O'Mally raise, on which the defendant also relied to establish the existence of a separate vein with an apex within its own side lines, had been put up from the second level nearly to the surface, at a point about 250 feet northeast of the Herrick raise. Some stoping had been done by the defendant at the foot of theO'Mally raise, but the stope lay at such an angle as would carry the apex of the vein within the side lines of the Aliunde, if the vein continued at that angle to the surface of the country rock. The O'Mally raise had not been extended downward below the 'second level. It was accordingly a matter of speCUlation where the alleged ore channel on which the stoping had been done would lead to in its descent, or whether it extended for any considerable distance below the foot of the ra.ise. About midway between the Herrick raise and the O'Mally raise, at the third level, the Benny crosscut had been run, which, tended strongly to demonstrate that no connecticn existed be-

894

.:'!'r'I'.

PBDERXL'mmoBTER,

v.oL 50.'

the:Herl'iclt' al'lUl O'Mallyraisesi and that both were no .conside'rableextent or significance. The shaft Its hllving ·been: punk 'in the Jim ,Hall tunnel seems to ha.veb&eti'lltiill further t<Hhe·northeast,. 'and is not shown on any of the cW subm«ted .lour inspection.' developments iritbiitrshait,'l'Whateverthejv!may 'have been,' throw'no light on the qUl:lstionuuwutnlerconshlerationJ s1')'fttras the present record discloses. On the'Ofhel! ;lllilild, ;the evidence .offered by the owner of the Aliunde had to show ,that he had the apex fora considerable distanoo: within his side lines ofa well·defilled vein with the usual hangingand'footwalllr, which descendreClinto the earth, with a uniform dip, at least to the ,500-foot level. Levels had; been shafts had been sunk to detevmineboth the dip and ,the strike of the vein; and, what is of mOre irnpertance, considerailJle stoping hlldbeen done along the vein on, all of 'the levels. In view of these facts, we must conclude, asthe'circuit Murt appears tohlivedone, that the evidence tending to Sh6W' the of a separate' :vein with its apex within the Colorado centralbonndaries which descended and formed a junction with the Aliunde :vein was too and speculative to warrant the sub;, mIssion of that issue to the juty. Great difficulties, no doubt, stood in the way 01 furnishing other rand better evidence of the existence of the suppOsed vein within the ·defendant's territory, but we are per'Snaded that fl. finding in favor lof the defendant, based upon such evidencea&w1ts· offered, wouldi ha:verested too UpOll speculation, and too. little upon legitimate inferences of fact, to be tolerated in a· judicial proceeding·. There was no error, therefore, in the charge of the lower court, sO'far as this issue was conce:oned, or in its refusal to give the defendant'S'instructions presenting the issue. ,The delEmdant's second proposition, above outlined, was based on a construction of section 2322 of the Revised Statutes of the United States. the tnaterialpartofwhich is as foliows: "The locaturi)of all mining locaUonsliel'etofore made·.or which shall heresftflr be made.:onsnymineral vein, lode, or ledge, situalRd on the public doroa'n. theirht"irs and assigns,whereno'advertle claim eXists on the tenth day of May. eiKhteen h.uJ:ldred and seventy-two, so thlilY comply with ttie laws of the lJnited States, and with state, territorial, and local regulations not inconttict With the laws of the United States governing tllPir pOssf'ssory titl!', shall have the exclusive right of possession arid enjoyment of all the surface inCluded Within the lines of their locations, and of all veins. lodes, and ledges throughout their entire depth the top orapex.of which Iietl inside of" such surface.l.nes extended downward vertically. although such veins, lodes,. or ledges may so far depart. from a perpendicula,r in their course dOWllward as to .extend outside the vertical side of. such surface locations. But.theirright of to such outside parts of such veins OJ: ledgl"sshallbe confined to,sllch p'ortions: thereof as lie between vertical planes dtlllwndownward as abovedescribed,throUllh the end lines:of their locations. so continued in their own direction that such planes wilUntersect such ex tertur parts of lIuch vein.s or ledges. " . The instruction tendered by thA defendant company in effect asked the circuit court to declare that section 2322 does not permit one who mer&lylodaJ:

to

COLORADO

CONSo)",IDATED

fl.

TURCL

895

llpon the apex of a, lode or vein to follow the' vein outside of his side lines and underneath the ,boundary lines of an adjoining proprietor if the latter:holdsundera senior patent. As the proposition was stated in. the instruction it excluded .all consideration of the question whether #1e Colorado Central Company.hador had not first discovered and 10:cated thElsame vein on thedip,which the owner of the Aliunde was following .its territory. In other words, it asserted that the right given.bysecUon 2322,tothe holder of the apex to follow his vein on its dip outside ofthesidelinffi of his claim iis merely a right that can be alilserterl againsta.nadjoining claimant ,holding under a junior pat. ent or certifiqate; Weare ofthe opinion that the instruction, as asked, was properly ·refused. It ,rested upon an interpretation of the statute tha.t cannot Qe sustliline.d in view of the language emplbyed, and, so far ,as .we are has never, as yet, been adopted. In two cases (Milling Gh. v. Spargo, 16 Feel'. Rep. 348, and Anuulor Medean.Gold Min. 00. v. South Spriltg Hill Golq.Min. 00., 36 Fed. Rep. 668) it was held that a patent for agricultural Jands, issueduoder the pre-emption laws of the United States., carriea the right to all mines underneath the surface to .which 41Qright has attached at the time the certificate of purchase or the patent iSBues, and that .a.teservstion in such patent,saving the rights of proprietors of IlIining veins or lodes, related solely to those proprietors whose rights had attached before the lands were purchased for agricultural purposes. We thinkthatthe same effect cannot be given to a patent for a mining claim whiQhappears to have been given in the cases cited to patents for agricultural land. The title acquired by a patent of the former description bears little resem blance to a title conferred by the latWr, because it is acquired and held under the provisions of statutes differing widely hoth in their language and purpose. The statute conferring the right 1<) follow a lode outside the side lines of a location, when the top or apex of the lode lies within the boundaries of the location, does not, in terms or by necessary implication, limit the exercise oLthat right, especially where mining claims are involved, to cases where the adjoining claims are held under junior locations or patents, and w,e think we would not be justified in placing such a limitation upon the right by construction... The of the general land office for many years al$Q appears to have been opposed to the existence of any such limitation. . The instruction embodying the third and final proposition above stated was intended, as weare advised by the counsel who drafted it, to present the law applicable to a plUticuJar phase of the testimony. The defendant company had begun work on the Colorado. Central claim at least 600 ;feet northeast of the disputed territory, and had thp.re discovered a veiIton which the. Colorado Central location and patent appear to rest.. . From this point it ,had drifted along the vein .00 several levels, in ase:)Uthwesterly direction, until it reached the disputed ground. in .thecasehaving a tendency to show that the There was vein forked as it entered the disputed territory, and Colorado of one of .the forks (that on which the Aliunde

,896

,FEDERAL' REPORTER,

voL 50.

location rested) bad departed from the Colorado Central sidelines; and was within the' Aliunde location, although, by reason of the dip, a portion of the fork of the vein was still underneath the Colorado Central claim. We are advised that by reason of this phase of thetestimon) the instruction now under consideration was tendered, the intent being to obtain a declaration that upon the state of fatlts last mentioned the proprietor of the Aliunde could not follow the fork of the vein outside ofhis side lines, be being a junior patentee, although the outcrop was within his own boundaries. The instruction was not very well calculated to enlighten the jury, because it did a sufficient statement ofthe facts upon which it was predicated 'to render it inlelligible·. But, "Waiving that objection, we think it was bad for other reasons. Upon the assumption that the Colorado Central vein had divided on its strike to the $outhwest, arid that the defendant company had lost the outcrop of one" if not both, forks of the vein by reason of the narrowness ofits claim, :we fail to perceive upon what principle it could claim the fork oLthevein,the outcrop of which had been lost. If the vein on which Central location rested became divided 'as it entered the disputed territory ,and the outcrop of one fork crossed into the Aliunde territory t thim it followed that the Colorado Central claim had been laid ratqett()bliquely to the course of the outcrop, and in that event we are of the opinion that the defendant lost that fork of the vein which had passed outside of its side lines. In other words, so far as that fork is concerned, the south end line of defendant's Colorado Central claim must be regllirded as a line drawn through the point where the outcrop passed through its south side line. There was no error, therefore, in the refusal of the instruction. Argentine Min. Co. v. Terrible Min. Co., 122 U. B. 478" 7 Sup. Ot,Rep. 13.56; Mining Co. v. Tarbet, 98 U. S. 463; Iron Sil'i16nMin. Co. v.Elgin Mining & Smelting Co., U8 U. S. 196-209, 6 Sup.Ot.Rep. 1177. Two questions ofpractice are also presented by the plaintiff in error, which remain to betlonsidered. The record shows that after the jury had been instructed and had retired, they asked for further directions as to a certain question of law, and that they were recalled, and further instructedby the court on that point, and none other; in this connection it may be said that the direction so given was merely a repetition, in substance, of a portion of the charge to which counsel for the defendant company had already saved their exception before the jury retired. The record recites that" to the giving of said instruction (i. e., the one in response t9the inquiry of the jury) said defendant specially objects and exceptS for the reason that the same was given without counsel for defendant being present as well as for the reason that the said instruction was contrary to law." We are not advised by the record, any further than is above stated, of the details of the transaction of which complaint is made, and we think it manifest that the transaction as stated will not justify a reversal of the cause. The rule, we concede, is well established that there ought to be no communication between the judge and jury after the latter have been charged and have retired to consider their ver-

COLORADO C]j:t{T.: CONSOLIDATED. MIN. CO-; 11. TURCIt.

diet, unless the communication takes place in open court, and, if practicable, in the presellce of counsel on the respective sides. Bank v. M''tX, 51 N. Y. 558; State v. Patterstm, 45 Vt. 308; O'Connor v. Guthrie, 11 Iowa, 80;Ohduteau v. Iron- Works, 94 Mo. 388-400,7 S. W. Rep. 467; Stewart v. Cattle Ranche 00.,128 U. S. 383-390,9 Sup. Ct. Rep.10!. But in the present case the communication complained of evidently took in op.en court, and, if defendant's counsel were not present, as their exception recites, it may have been due to their own fault, in absenting thezpselves fr9m the court room when they should have remaiJoled in attendance. 'In the absence of any showing ,as to the cause of their absence, or as to whether any efforts were made to secure their presence, we are bound to indulge in every presumption in favor of the regularity ,and propriety of the court's action. Complaint is also made that the verdict of the jury is too general, and ,that it does not define the boundaries of the disputed territory east and ,west ill feet and inches, as an engineer might perhaps have done by an actual measurement. We think this objection is 'likewise untenable. 'rhecbmplaint filed in the circuit court described the disputed premises with all reasonable accuracy and certainty as "so much of said Aliunde Tunnel Lolle No. 2 mining claim and premises, as lies beneath the depth of 3QO feet beneath the surface of the ground, north of the north side line of said Aliunde Tunnel Lode, carrying said north line down vertically, and from thence on the pitch ofsaid lode northwestwardly, and measuring thence along the line of said Aliunde Tunnel Lode No.2 a distance of six hundred feet next west of the northeast end line of said claim;" and the jury, by their verdict, found the issues joined for the plaintiff, and further found that the plaintiff was "the owner in fee of the lode and premises described in the complaint, and was entitled to the occupation and possession thereof." In view of these facts, the objection taken to the verdict, on account of its generality, is certainly without merit. In entering final judgment it seems that the circuit court did not award all of the premises to which the plaintiff was entitled by the verdict of the jury, but that is an error of which the defendant company cannot be heard to complain. Upon the whole, therefore, we find no material error in the record, and the judgment of the circuit court is accordingly affirmed. v.50F.no.11-57

'898
i ,

ftiblllB.u..BlllPOBTlllB,

vol. ISO. ,"

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Intervener.)

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Otrcuu..

Jj] No. -175. '1.' foBIWll!NIsHitlb'r'fu'N.....:CS1BG.'·Xl' Wnrl'ING;
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t.b8court cannot.

v. OampbeU,

49 Fed: Rep. 3M, I. U. 8.

..

uired to I'tllluce ita

,I" . .n, allegl1li sale of .persopalproperty an In. .' stl'tXction' thlit fraud 'Ii tteVe1"preSllltled; but must be proved, IS !lot· reversible error ,-<, ; alBO'to at4te that fraud,lik&: otb,er fact, be proved by clro

·1.:hA.ll'DULlIIN!Il:6oln1lJ!,Ajr6B.....,AOTION TO. SJrr

..

oJ' CRBDIT<>RS...:.rNSTRUOTIONS. In an action to set aside an assignment the bElbetit of credtiors an instruction ;, duty of to make. suoh an asslgnment ls · stateis, error. Sanger v.Ji'Low, 48 Fed ·,mp.J1511, 4U.·st . , . .
o.

ASIIIGNBL .

,.'.' '. tr:anBfer a ll0rtiC!n of hlsllx:dperty, at full value. to aored.. 'tttw,"fn'kla1liientOf ··pr&:uls'ting debt,' just, before making a· general assignment .' : ·. fl1'\l1rM6, the of bis a,nd, to :the assignment for :, must be.hown..that the tru. ee was cognizaJit 6! ox: particlpated in the , . I. fryllld,' .:Emer8on v; 'Se/liter, 6 Sup. Ct. R.ep. :981, 11S ·U. 8. 8, foll()wed· ..... B.dIB....lhlliJ'BBENOB.... ' . : . ;_ .. . byMSO:wJl acts make infants ot. tender years . bili'pattl/ere ill.bU:Sfli\<jsll,but, 1'1 be ie ii'ldehtedto them. he'may prefer them In mak· benefit of b,is creiiitors.· , ' . . .'.. '. ,. 1 Io.,anactjon to set jP,llide an assignment for the benefit of creditorsbeoanse the . ., "8ignoi' bad ueetl· a portion of his property in paying a pre-exiBting debt, itis not ';P:!m.eI'W that tjle.lI4lsignor had oo1l,veyed hls entire propert.Y to the same credftol,' at.SO cents ou the Ciollar, whlch' conveyance bad been relilll'DdM'up'Ol) the'adtieedf COunsel,,4nd' the'partiei placed in 8tatu quo, before the of the .. ' : , ,'. · ,'f. Of.J'R09.· . ' . ' : ' n biiltruction that.· the 'burden was. 'on. the. U,signee to. e:rplalll: any diminntion.i.1l .(' of the .allslgAot of the c!lDve,ancewhicb was f8, .that .Qf asslgnmellt w.asl1ghtfully refused; for. although such (act .night tend to show fl'al1d; the assigne8'Qan only be reqUired to account for the "(prOpertY . ....·.. , . : . . of or vl1lueby tbllma'ker of a .note, about to 88sign for tIM ,: 'lJeltilt't)ffhisoredltortl, t() his surety thereOIl,;:lio. enabillthe latter to pay the not!tt "ll',.IJ9t . 'pb,a, fraUdUlent. . of th e, l\Ilsetlll,ll to illvalidate the aBSlgIlIDeJli, . , .. , '
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Q.-GOODIl.TO SBOURB NOTB. '" . ·

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In Error to the United States Court in the Territory. Al.'tion by Adolph BaeT, Simon Seasongood, a\:l:lfLewiJ!l Bierman, trading as Baer, Seasongood & Co., against C. C. Rooks, William Rooks, and Agnes Rooks, trading as C. C. Rooks & Co., and Erlmund H. Doyle, intervener. Verdict and judgment for defendants. Plaintiffs bring error. Affirmed. The action was commenced by attachment on a stock of goods in the hands of Doyle, to whom defendants had made an assignment for the benefit of creditors; it being alleged that Buch assignment was fraudulent and void. Statement by CALDWELL, Circuit Judge: C. C. Rooks, under the name and style of C. C. Rooks &: Co., waa ,.ngaged in business as a merchant at in the Indian Terri-