Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN nEnoRY OF 
 
 JUDGE DOUGLASS BOARDMAN 
 
 'FIRST DEAN OP THE SCHOOL 
 
 By his Wife and Daugliter 
 A. M. BOAKDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF 1810.M88 1883 
 
 The mining reports :a series containing 
 
 3 1924 019 199 490 
 
h Cornell University 
 J Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019199490 
 
THE 
 
 MINING REPORTS. 
 
 A SERIES CONTAINING THE CASES ON THE 
 
 LAW OF MINES 
 
 FOUND IN THE AMERICAN AND ENGLISH REPORTS, ARRANGED 
 ALPHABETICALLY BY SUBJECTS, 
 
 WITH NOTES AND EEFEREKOES. 
 
 By R. S. MORRISOI^, 
 
 07 IHE COLOBADO BAB. . 
 
 YOL YIL 
 
 CHTCAGO: 
 
 CALLAGHAN & COMPANY. 
 
 1885. 
 
Entered accordlDg to ABtof Congress, In the year 1883, 
 
 By Callaghan & CoMPANy. 
 
 In the office of the Librarian of Congress, at Washington 
 
 Stereotyped, Printed and Bound 
 
 by the 
 Chicago Legal News Company, 
 
CASES REPORTED IN VOLUME VII. 
 
 Anderson v. Harvey's Heirs, 
 
 391. 
 Arnold V. Baker, 111. 
 Arthur v. Griswold, 46. 
 
 Banta v. Pavagp, 113. 
 Bill V. Sierra Nevada Co., 413. 
 Blaisdell v. Stephens, 599. 
 Boyle V. Laird, 301. 
 Bracken v. Preston, 267. 
 Brennan v, Gaston, 424, 436. 
 Burns V. McCabe, 1. 
 Burnett v. Whitesides, 407. 
 
 Campbell v. Metcalf, 656. 
 Capner v. Flemington Co., 263. 
 Central R. R. Co. v. Standard 
 
 Oil Co., 604, 638. 
 Clegg V. Jones, 572. 
 Coker v. Simpson, 330. 
 Cole M. Co. V. Virginia W. Co., 
 
 503, 516. 
 Cowper V. Baker, 253. 
 Creighton v. Vanderlip, 173. 
 
 Daubenspeok v. Grear, 439. 
 Davidson v. Jordan, 54. 
 
 Earl Cowper v. Baker, 353. 
 Earl of Lonsdale v. Curwen, 
 
 693, 
 Edwards v. AUouez M. Co., 
 
 577. 
 
 Efford V. South Pacific C. R. R 
 
 Co., 557. 
 Eldridge v. "Wright, 418. 
 Elwell v. Crowther, 438. 
 Emma Mine Case, 493. 
 Emmons v. McKesson, 409. 
 
 Falh v. McAfee, 639. 
 Field v. Beaumont, 257. 
 Fremont v. Merced M. Co., 333. 
 Funk V. Haldeman, 203. 
 
 Gear v. Shaw, 643. 
 Getty V. Devlin, 29, 119. 
 Gillett V. Treganza, 432. 
 Grey v. Duke of Northumber- 
 land, 350, 351. 
 Grubb V. Grubb, 336. 
 
 Hardy v. Stonebraker, 10. 
 Hawseviile v. Hawse's Heirs, 
 
 193. 
 Hellman v. Holladaj', 168. 
 Hicks V. Jennings, 138. 
 Higgins V. Barker, 535. 
 
 Irwin V. Davidson, 337. 
 
 Jackson v. Allen, 137. 
 Janes v. Scott, 181. 
 
 Kahn v. Old Telegraph M. Co., 
 559. 
 
 (Ill) 
 
IV 
 
 Cases Eepokted. 
 
 Lady Bryan Co. v. Lady Bryan 
 
 Co., 478. 
 Law V. Grant, 56. 
 Lawrence and others' Appeal, 
 
 543. 
 Learning v. Wise, 41. 
 Leitham v. Cusick, 546. 
 Lockwood V. Lunsford, 532. 
 London, Bishop of, v. Web, 
 
 247. 
 Lonsdale v. Curwen, 693. 
 Lyon V. Woodman, 493. 
 
 Magnet Co. v. Page and Panaca 
 
 Co., 540. 
 Mahony M. Co. v. Bennett, 
 
 133. 
 Mammoth Vein Co.'s Appeal, 
 
 460. 
 Mateer v. Brown, 156. 
 Merced M. Co. v. Fremont, 309, 
 
 313. 
 Mitchell V. Dors, 250. 
 Moore v. Ferrell, 281. 
 More V. Massini, 455. 
 Morgan v. Negley, 653. 
 Morgan v. Skiddy, 74. 
 Munson v. Tryon, 469. 
 McBrayer v. Hardin, 288. 
 McLaughlin v. Kelly, 435. 
 
 Newton v. Nock, 611. 
 
 Ogle's Estate, In re, 189. 
 Old Telegraph M. Co. v. Cen- 
 tral S. Co., 555. 
 
 Real Del Monte Co. v. Pond 
 
 Co., 452. 
 Rivers v. Burbank, 583. 
 Robertson v. Smith, 196. ' 
 
 Schuylkill and Dauphin Co. v. 
 
 Schmoele, 480. 
 Slade V. Sullivan, 419. 
 Sherman v. Clark, 483. 
 Sierra Nevada Co. v. Sears, 549. 
 Smith V. Rome, City Council 
 
 of, 306. 
 Streeter v. Marshall S. M. Co., 
 
 660. 
 Strelley v. Pearson, 618. 
 
 Thomas v. Oakley, 254. 
 Thorn V. Sweeney, 564. 
 Thornburgh v. Savage M, Co., 
 
 667. 
 Tuck V. Downing, 83. 
 Twaddell's Appeal, 189. 
 
 United N. J. R. R. & C. Co. v. 
 
 Standard Oil Co., 625. 
 United States v. Parrott, 335. 
 
 Vanzandt v. Argentine M. Co. 
 634. 
 
 Waldron v. Marsh, 305. 
 Walling V. Miller, 165. • 
 Warden v. Union Pacific R. R. 
 
 Co., 144. 
 Wentworth v. Turner, 249. 
 West Point Co. v. Reymert, 528. 
 Williams v. Spurr, 17. 
 
TABLE OF CASES CITED IN VOLUME VIL 
 
 THOSE CASES PKINTBD IN ITALICS ABB TO BB FOUND REPORTED 
 IN THE SERIES. 
 
 Abbott V. Allen, 279. 
 
 Abinger v. Ashton, 615, 617, 621, 
 
 623. 6 M. R. 1. 
 Ablemanv. Roth, 13. 
 Ackermanv. Hartlei/, 638. 1 M. R. 
 
 74. 
 Ahl's Appeal, 144, 153. 3 M. R. 
 
 638.. 
 Ahrens v. Adler, 153. Pleading. 
 'Ainslie v. Medlycott, 75. 
 Alden v. Gregory, 63. 
 Alexander v. Cauldwell, 156. 5 M. 
 
 R. 650. 
 Alexander v. Pendleton, 279. 
 Allen V. City of Buffalo, 123. 
 AUerton v. Belden, 123. 
 Allison's Appeal, 636. Ore. 
 Allport V. Keiley, 666. 
 Aimer v. Hiatt, 683. 
 Amelung v. Seekamp, 320, 321. 
 Anderson v. Harvey, 281, 305. 7M. 
 
 E. 291. 
 Anderson v. Lemon, 14. 
 Anderson v. Simpson, 257. Li- 
 cense. 
 Angler v. Agnew, 237. 
 Arcambel v. Wiseman, 650. 
 Arent v. Squire, 75. 
 Arimond v. Green Bay Co., 578. 
 Arthur v. Griswold, 76, 123. 7 M. 
 
 R. 46. 
 
 Ashley v. Port Huron, 578. 
 
 Attorney-General v. City of Pater- 
 son, 500. 
 
 Attorney- General v. Ballot College, 
 507. 
 
 Attwood V. Small, 155. 
 
 Atwood V. Clark, 43. 
 
 Auburn v. Douglass, 499. 
 
 Audenried v. Phila. & R. R. R. 521. 
 
 Austin Glass Co. v. Dewey, 511. 
 
 Ayers v. Mitchell, 43. 
 
 Babcoch v. Case, 8. 6 M. R. 618. 
 
 Backler v. Farrow, 380. 
 
 Bailey v. Burton, 122. 
 
 Bailey v. Inglee, 122. 
 
 Bailey v. Ogden, 304. 
 
 Baker v. Moody, 166. 
 
 Baker v. Robins, 32. 
 
 Ballston Spa Bank v. Marine Bank, 
 
 64. 
 Bank v. Devaux, 684, 685. 
 Bank of Augusta v. Earle, 690, 691. 
 Bank of Monroe v. Schermerhorn, 
 
 542. 
 Bankart v. Houghton, 577, 637. 
 Banta v. Palmer, 91, 94. 
 Barber v. Barber, 500. 
 Barber v. Eil bourn, 13. 
 Bai-d V. Tohn, 601. 
 Barker v. Elkins, 262. 
 
 (V) 
 
VI 
 
 Cases Cited. 
 
 Barksdale v. Finney, 153. Trust. 
 
 Barnes v. Quigley, 123. 
 
 Barney v. Baltimore City, 508, 518. 
 
 Bartle v. Coleman, 14. 
 
 Bassett v. Salisbury Mfg. Co., 569. 
 
 Beal T. Ins. Co., 64. 
 
 Bean v. Valle, 153, 155. Spec.Perf. 
 
 Beatty v. Gregory, 573. License. 
 
 Beaufort V. Morris, 636. 
 
 Beaumont v. Boultbee, 153. 1 M. 
 
 K. 253. 
 Beaumont v. Field, 258. 1 M. R. 
 
 281. 
 Bechtel v. Carslake, 571. 
 Beckford v. Kemble, 472. 
 Beddow v. Beddow, 620. 
 Beecher v. Gillespie, 122. 
 Beeker v. Hastings, 154. 2 M. R. 
 
 6S8. 
 Belcher Co. v. Deferrari, 643. 
 Bemis v. TTpbam, 579. 
 Bennett v. Judson, 30, 64, 75 
 Benson v. Heathom, 152. 
 Bently v. CraTen, 37. 
 Bigelow V. Hartford Co., 571. 
 Bird V. Smith, 208. 
 Birmingham Co. f>. Lloyd, 637. 
 
 Laches. 
 Bishop of Winchester v. Knight, 278. 
 Bissel V. Collins, 202. 
 Bittinger v. Baker, 210. 
 Blacoe v. Wilkinson, 260. 
 Blagden v. Bradbear, 304. 
 Blaine v. Chambers, 234. 
 Blake's Case, 31, 122. 
 Blake v. City of Brooklyn, 571. 
 Blake v. Mowatt 48. 
 Blake v. R. R. Co., 122. 
 Blakemore v. Glamorganshire Co., 
 
 523. 
 Blakesley v. Whieldon, 620. 8 it. 
 
 R. — 
 Blankman v. Vallejo, 117. 
 Blasdel v. Williams, 330. 
 Bliss V. Matteson, 31. 
 Bloodgood V. Bruen, 1X3. 
 Bogardus v. Ti-inity Church, 356. 
 Bogqs v. Merced Co., 330. Mex. 
 
 Grant. 
 
 Boiling V. Tate, 644. 
 
 Bolt V. Rogers, 14. 
 
 Bonaparte v. Camden R. R. Co., 
 579. 
 
 Booth V. Discoll, 499. 
 
 Bosleyv. McKim, 580. 
 
 Bowman v. Bates, 113. 6 M. R. 363. 
 
 Boycev- Brown, \2i. 
 
 Boyce v. Grundy, 349. 
 
 Boynton v. Hatch, 76. 
 
 Bradbury v. Dacis, 154. 3 M. R. 
 403. 
 
 Bradley v. Bos'.ey, 123. 
 
 Brandt v. McKeever, 234. Li- 
 cense. 
 
 Breed v. Judd, 192. Prosp. Cont. 
 
 Brennan v. Gaston, 267, 547, 634. 7 
 M. R. 426. 
 
 Bridgman v. Green, 122. 
 
 Broderick v. Broderick, 63. 
 
 Bromley v. Jeffries, a04. 
 
 Brookman v. Hamill,' 123. 
 
 Brooks V. Martin, 16. 
 
 Brown v. Ashley, 305, 429, 638. 
 Pleading. 
 
 Brown v. Brooks, 185. 
 
 Brown v. Caldwell, 278. Replevin. 
 
 Brown v. Lynch, 14. 
 
 Brown v. Wier, 466. 
 
 Browne v. Moore, 696. 
 
 Browne v. Vredenbnrgh, 31. 
 
 Bruce v. Davenport, 124. 
 
 Bruce v. Del. & H. Can. Co., 454. 
 
 Bryan v. Berry, 428. 
 
 Buckman v. Brett, 123. 
 
 Burdge v. Smith, 422. Pub. Do- 
 main. 
 
 Bxrdge v. Underwood, 422. 4 M. 
 R. 517. 
 
 Burgess v. Clements, 161. 
 
 Burge-a v. Eattleman, 579. 
 
 Burgess v. Simonson, 31. 
 
 Burnett v. Whitesides, 454, 498, SOO. 
 7 M. R. 407. 
 
 Bush V. Sullivan, 573. License. 
 
 Bushnell v. Church, 188. 2 M. R. 
 479. 
 
 Buskel v. Com. Ins. Co., 689. 
 
 Butler V. Haskell, 63. 
 
Cases Cited. 
 
 VII 
 
 Butz V. Ihrie, 208. 
 
 Byard v. Holmes, 29, 111. 6 M. R. 
 
 698. 
 
 Caldwell v. Fulton, 208, 210, 217, 
 
 218, 221, 234. 3 M. R. 238. 
 Caldwell v. Knott, 499. 
 Calkins v. Smith, 123. 
 Calye's Case, 161. 
 Oamp T. Bates, 878. 
 Campbell v. Fleming, 48. 6 M. R. 
 
 395. 
 Campbell v. Metcalf, 666. 7 M. R. 
 
 656. 
 Caples v. McBride, 154. 
 Capnerv. Flemington Co., 237, 281. 
 
 7 M, R. 263. 
 Carpenter v. Danforth, 31. 
 Carpenter v. Hart, 428. 
 Castleman v. Griffin, 13. 
 Catching v. Terrell, 571. 
 Cavene v. McMichael, 648. 
 Central R. R. Co. v. Kish, 80, 81. 
 Central R. B. Co. v. Standard Oil 
 
 Co., 625. 7M. R. 604. 
 Chafin Will Case, 66. 
 Chalk V. Wyatt, 242. 
 Chamberlain, ex p., 810. 
 Chamberlain v. Barnes, 14. 
 Chambers v. Alabama Co., 494. 
 Chapman v. Toy Long, 254, 330. 1 
 
 M. R. 497. 
 Charles Riv. Br. v. WaiTen Br., 199. 
 Charnley v. Dulles, 43. 
 Chester v. Comstock, 76. 
 Chester v. Dickerson, 38, 75, 123. 
 Chestei-field v. Janssen, 63. 
 Chetham v. Williamson, 206, 209, 
 
 220. License. 
 Chidester v. Cons. Ditch Co., 599. 
 Citizens' Coach Co. v. Camden Horse 
 
 R. R. Co., 609, 610. 
 City of Ottawa v. Ch. & R. I. R. R., 
 
 563. 
 Clapham v. SUllito, 113. 6 M. R. 
 
 431. 
 Claphaim v. White, 360, 
 Clark V. Asoham, 43. 
 Clark V. Duval, 422. 
 
 Clark V. Riemsdyk, 361, 368. 
 Clark V. Willeti, 460. 4 M. R. 628. 
 Clarke v. Dickson, 74, 76, 80, 83. 6 
 
 M. R. 523. 
 Clarke v. Hart, 257. 
 Clarke v. Mathewson, 348. 
 Clarkson v. DePeyster, 122. 
 Clavering v. Clavering, 454, 637. 
 
 Tenant for Life. 
 Clemens v. Clemens, 16. 
 Clement v. Walter, 207. 
 Clement v. Youngman, 209. 5 M. R. 
 
 230. 
 Clerk V. Wright, 304. 
 Cleveland v. Pollard, 122. 
 Clin an v. Cooke, 304. 
 Clowes V. Staffordshire Co., 614. 
 Cobb V. Hatfield, 32, 39, 123. 
 Cobb V. Smith, 498. 
 Cookburn v. Thompson, 507. 
 Cockey v. Carroll, 579. 
 Cockrell v. Warren, 683. 
 Coggs V. Bernard, 221. 
 Coiron v. Millaudon, 346. 
 Cole Co. V. Virginia Co., 611. 7 M, 
 
 R. 503. 
 Coleman v. Columbia Co., 549. 3 M 
 
 R. 483. 
 Coleman v. Morrison, 195. 
 Collins V. Case, 127. 1 M. R. 91. 
 Collum V. Andrews, 648. 
 Com. V. Hampden, 810. 
 Conger v. Weaver, 326. 1 M. R. 
 
 594. 
 Conkey v. Bond, 30, -32, 122. 
 Conybeare v. N. B. R. & L. Co., 31, 
 
 122. 
 Cook V. Nicholas, 235. 
 Cooke V. Chilcott, 614, 620. 
 Cooley V. Lawrence, 683. 
 Cooper V. Lovering, .54, 113. 6 M. 
 
 R. 662. 
 Coos Bay Co. v. Crocker, 138. ■ 
 Cope V. Grant, 234. 
 Corfield V. Coryell, 278. 
 Coming v. Troy Iron Factory, 530. 
 Coryell v. Cain, 16. 5 M. R. 226. 
 Coster V. Bettner, 75. 
 Courtney v. Turner, 592. 
 
VIII 
 
 Casks Cited. 
 
 Cousins V. Smith, 334. 
 
 Craig V. Ward, 75. 
 
 Crane, ex p., 310. 
 
 Crater v. Binninger, 153. Meab. D. 
 
 Crismau v. Heiderer, 305. 
 
 Crompton v. Lea, 618. 6 M. R. 179. 
 
 Cronk V. Cole, 18. 
 
 Crump e. U. S. Co., 154. 3 M. R.454. 
 
 CuUen V. Thompson, 76. 
 
 Cumberland Co. v. Sherman, 144, 
 
 153. 1 M. R. 3227 
 Cunningham v. Pell, 31. 
 Curtis V. Smith, 122. 
 Curtis V. Sutter, 454. 
 Curtis V. Waring, 153. 
 
 Daubenspeck v. Grear, 445, 568. 7 
 
 M. R. 429. 
 Davis V. Leo, 249, 362. 
 Davoue v. Panning, 82. 
 Dawson v. Chamney, 161, 163. 
 Day V. Brownrigg, 620. 
 Day V. Newark Mfg. Co., 692. 
 Day V. Potter, 128. 
 Dayton M. Co. ». Seawell, 567. 5 
 
 M. R. 424. 
 Dean v. Chamberlain, 122. 
 Dedham Bank v. Chickering, 14. 
 Deep Siver Co. v. Fox, 637. 1 M. 
 
 R. 296. 
 DeGodey v. Godey, 559. 
 Degraw v. Elmore, 123, 155. 
 Dekay, In re, 484. 
 Del. & Hud. Canal Co. v. Pa. Coal 
 
 Co., 210. 
 Delgerv. Johnson, 561, 562. 
 Delphi V. Evans, 202. 
 Demott T. Hagerman, 278. 
 Den V. Kinney, 266. 
 Denny v. Brunson, 466. 
 Densmore Co. v. Densmore, 153. 3 
 
 M. R. 569. 
 Des Moines v. Hall, 202. 
 Denver v. Capelli, 547. 
 Denver v. Clements, 198. 
 Denver v. Lobenstein, 446. 
 Deny v. Ross, 686. 1 M. R. 1. 
 Dias V. Brunell, 122. 
 Dill V. McGehee, 122. 
 
 Disbrow v. Mills, 122. 
 Dobbins v. Brown, 482. 
 Dodge V. Strong, 262. 
 Doe V. Wood, 206, 209, 221. Li- 
 cense. 
 Dore v. Dawson, 166. 
 Doty V. Strong, 645, 646. 
 Dows v. Smith, 43. 
 Drury v. Cross, 152. 
 Dubuque v. Benson, 202. 
 Ducket V. Price, 666. 
 Dugan V. Cureton, 13. 
 Dunlap V. Richards, 14.- 
 Dunlap V. Stetson, 348. 
 Dupont V. Payton, 13. 
 Dutch W. I. Co. V. Moyes, 689. 
 Duval V. Covenhoven, 122. 
 Duvall V. Waters, 277. 
 Dyer v. Homer, 16. 
 
 Eakert v. Bauert, 691. 
 
 Earl of Mixborough v. Brown, 515. 
 
 Eait India Co. v. Kynaston, 693. 
 
 Easton v. N. T. & L. B. R. R., 631. 
 
 Ecc. Com. V. N. E. Railway, 155. 
 Release. 
 
 Echelkamp v. Schrader, 536. 
 
 Elwell V. Chamberlain, 30, 64. 
 
 Elwell V. Dodge, 75. 
 
 Emma Mine Case, 237. 7 M. R., 
 493. 
 
 Emma Co. v. Emma Co., 155, 637. 
 
 Emmons v. McKesson, 155. 7 M. 
 R., 409. 
 
 Enfield Br. Co. v. Conn. R. Co., 579. 
 
 Ensminger v. Mclntire, 637. Tres- 
 pass. 
 
 Eureka Co. v. Richmond Co., 637. 
 8M. R.— . 
 
 Eureka Co. v. Way, 593, 597. 
 
 European Ry. Co. v. Poor, 152. 
 
 Evans v. Smith. 332, 637. 
 
 Everly v. Rice, .362, 363. 
 
 Fabian v. Collins, 525, 572. 5 M. 
 
 R., 20. 
 Falkinburg v. Lucy, 561, 562. 
 Falls V. McAfee, 637. 7 M. R., 639. 
 Falmouth v. Innys, 516. 
 
Cases Cited. 
 
 IX 
 
 Farmers Bank v. D. & M. R. R., 
 511. 
 
 Farmers L. & T. Co. v. Carroll, 123. 
 
 Farnum v. U. S., 180. 4M. R., 192. 
 
 Fargo V. Ladd, 14. 
 
 Fawcettv. Whitehouse, 153. Part- 
 ner. 
 
 Fay V. New World, 180. 2 M. R., 
 417. 
 
 Fellows V. Northrup, 31. 
 
 Ferguson v. Hillman, 119. 
 
 Ferguson v. Terry, 601. 
 
 Field V. Beaumont, 258, 454, 577, 
 7 M. R., 257. 
 
 Field V. Munson, 31. 
 
 Fields V. Rouse, 13. 
 
 First -Nat. Bank v. How, 154. 
 
 PtEADINO. 
 
 First Nat. Bank v. Marietta R. R., 
 168. 
 
 Fisher v. Felds, 123. 
 
 Fisher v. Fredenhall, 32. 
 
 Fisher v. Mellen. 75. 
 
 Fitz V. Bynum, 155. Stock. 
 . Fitzgerald v. TJrton, 422. Posses- 
 sion. 
 
 Fifzsimraons v. Joslin, 64. 
 
 Flaggv. Mann, 122. 
 
 Flagstaff Co. v. Patrick, 484. 4 M. 
 R. 19.' 
 
 Flamang's Case, 250, 256, 357, 636. 
 
 Fletcher v. Hawkins, 180, 188. 
 Partner. 
 
 Flint & P. M. Ry. v. Dewey, 152. 
 
 Foley V. Cowgill, 13. 
 
 Fortescue v. State Bank, 166. 
 
 Foss V. Harbottle, 31, 122. 
 
 Fox y. Maokueth, 154, 155. 
 
 Fralt V. Fiske, 55. 
 
 Preeland v. McCuUough, 46. 
 
 Freeman v. Hiil, 245. 
 
 Freeman v. McDaniel, 13, 
 
 Fremont v. Merced Co., 634. Man- 
 damus. 
 
 Fremont v. Seals, 115. 
 
 French v. Brewer, 637. Oil. 
 
 Friedhoff v. Smith, 572. 
 
 Frost V. Earnest, 482. 
 
 Fuller V. Hodgdon, 13. 
 
 Funk V. Haldeman, 234 7 M. R. 
 203. 
 
 Gale V. Gale, 14. 
 
 Ganter v. Atkinson, 51&. Lease. 
 
 Gardner v. Perkins, 408, 454, 479. 
 
 Gargan v. School District, 664. 
 
 Garr v. Gomez, 304. 
 
 Garstin v. Asplin, 328. 
 
 Garth v. Cotton, 485. 
 
 Gates T. Kieff, 459. 
 
 Gates T. Teague, 315, 320, 329, 331. 
 
 Geiger v. Green, 637. SuRFAoa 
 
 Support. 
 Gere V. Clarke, 123. 
 Gerhard v. Bates, 76. 
 Getty V. Binsse, 123. 
 Gettij V. Devlin, 122. 7 M. R. 29. 
 Gibbs V. Cannon, 187. 
 Gifford V. Carvill, 55. 6 M. R. 558. 
 Gilbert v. Henck, 185. 
 Gilbert V. Showerman, 579. 
 Gill V. Rice, 575. 
 Gillan v. Hutchinson, 422. 2 M. R. 
 
 317. 
 Gillett V. Treganza, 210. 7 M. R. 
 
 432. 
 Gilpins T. Consequa, 650. 
 Gilroy's Appeal, 483. 
 Gloninger v. Franklin Co;, 226, 236. 
 
 LiCKNSE. 
 
 Golden Gate Co. v. Superior Court, 
 
 263, 546, 634. 
 Gold Hill Co. V. Ish, 637. Patent. 
 Good V. Martin, 664. 
 Goodell V. Lassen, 579. 
 Goodheart v. Raritan Co., 638. 
 Goodson T. Richardson, 614, 620. 
 Goodtitle v. Alker, 308. 
 Gordon v. Butler, 84, 113, 155. 
 Gowan v. Christie, 621, 623. Lease. 
 Gracie v. Palmer, 682. 
 Grant v. Law, 56. 3 M. R. 80. 
 Graves v. Waite, 155. 
 Gray v. Dougherty, 459. 
 Gray v. N. Y. & S. 0. Co., 122. 
 Great Luxembourgh Ry. v. Magnay, 
 
 152. 
 Green v. Palmer, 560. 
 
Cases Citjed. 
 
 Greenville v. Seymour, 413. 
 
 Grinnell v. Cook, 163. 
 
 Grey v. Ohio R. R. Co., 580. 
 
 Grey v. Northumberland, 237, 261, 
 278, 474. 7 M. R. 251. 
 
 Grubb V. Bayard, 206, 209, 221. Li- 
 cense. 
 
 Orulb V. Guilford, 206, 209, 234. 5 
 M. R. 163. 
 
 Grymes v. Sanders, 154. Mistake. 
 
 Guerard v. Geddes, 372. 
 
 Guiliev. Swan, 601. 
 
 Gunter v. Sanchez, 180. 
 
 Hafod Co., In re, 155. 
 
 Haigh V. Jagger, 474. 
 
 Haight V. Lucia, 635, 636. 
 
 Hale V. West Va. Oil Co., 153. 
 
 Hall V. Fisher, 155. Pleading. 
 
 Hallett V. Hallett, 122. 
 
 Hamilton v. Ely, 637. 
 
 Hammond v. Pennock, 122. 
 
 Hanson v. Gardiner, 300, 321, 636. 
 
 Hardy v. Hunt, 167. 
 
 Harkinson's Appeal, 579. 
 
 Harlan v. Lehigh Coal Co., 208. 
 Lease. 
 
 Harris v. Tyson, 154. Vendor 
 AND P. 
 
 Harrison v. Nixon, 276. 
 
 Hart V. TenEyck, 347. 
 
 Hart V. The Mayor, 277, 310, 499. 
 
 Hartopp V. Hartopp, 64. 
 
 Hart well v. Root, 75. 
 
 Harvey v. Harvey, 507. 
 
 Harvey v, Ross, 297. 
 
 Harvey v. Vamey, 16. 
 
 Hastings v. Wagner, 235, 
 
 Hawkins v. Appleby, 75. 
 
 Hawkins v. Campbell, 13. 
 
 Hazleton v. Union Bank, 63, 67. 
 
 Head v. Horn, 153. 
 
 Heathcote v. North Co., 413. 
 
 Hedley v. Bates, 620. 
 
 Henderson v. Hay, 620. 
 
 Henry v. Everts, 153. 5 M. R. 603. 
 
 Henshaw v. Clark, 305, 498. Tres- 
 pass. 
 
 Hepburn v. Lordon, 523. 
 
 Hess V. Winder, 3-30, 499, 684. 
 Possession. 
 
 Hicks v. Bell, 322. 
 
 Hicks V. Compton, 419, 454. 
 
 Hicks V. Michael. 309, 458, 498, 537. 
 
 Hill V. Bush, 13. 
 
 Hill V. Commissioners, 499. 
 
 Hill V. Hobart, 43. 
 
 Hill V. West, 234. 
 
 Hiller V. Collins, 263, 335, 336, 419. 
 
 Hillman v. Newington, 599. 
 
 Hills V. Bannister, 649. 
 
 Hilton V. Gi-anville, 454. 
 
 Hine V. Stephens, 498, 579. 
 
 Hitchens v. Congreve, 30, 122. 
 
 Hitnerv. Suckley, 691. 
 
 Hobbs V. Amador Co., 599, 638. 
 
 Hoffman V. Bechtel, 185. 
 
 Hoffman Co. v. Cumberland Co., 153. 
 
 Hoffman v. Stone, 323. 4 M. R. 
 520. 
 
 Holbrook v. Connor, 83, 113, 154. 
 
 Holdridge v. Webb, 76. 
 
 Holmes v. Seeley, 278. 
 
 Hoolbrook v. Burt, 43. 
 
 Hombeck v. Westbrook, 7. 
 
 Homer v. Hanks, 122. 
 
 Hot<;hkiss v. Thomson, 683. 
 
 Houghton V. Ely, 180. 
 
 Howard v. Hatch, 75. 
 
 Howe V. Dartmouth, 191. 
 
 Howe V. Huntingdon, 43, 
 
 Hoy V. Gronoble, 6-54. 
 
 Hoyt V. Carter, 425. 
 
 Hubbard v. Briggs, 64. 76. 
 
 Hubbell V. Meigs, 75, 76. 
 
 Huff V. McCauley, 207, 234. Li- 
 cense. 
 
 Huff V. McDonald, 180. Ti»f. 
 Com. 
 
 Huguenin v. Basely, 64, 65. 
 
 Humble v. Glover, 7. 
 
 Humphreys v. Humphreys, 334. 
 
 Hunt V. Johnson, 530. 
 
 Hunter v. fl. R. Iron Co., SO. 
 
 Huntingtbrd v. Mussly, 76. 
 
 Hurst V. Hurst, 646. 
 
 Huss T. Stephens, 8. 
 
 Huston V. Fort Atkinson, 202. 
 
Cases Cited. 
 
 xr 
 
 Ide V. Gray, 13. 
 
 Irwin V. Covode, 249. Waste. 
 
 Trwin v. Davidson, 251, 263. 7 M. 
 
 R. 237. 
 Irwin V. Pfiillips, 823, 502. Wa- 
 
 TBK. 
 
 Isenburg v. East India Co., 615. 
 
 Jackman Will Case, 66. 
 
 Jackson v. Allen, 119. 7 M. R. 127. 
 
 Jackson v. Campbell, 75. 
 
 Jackson v. Cory, 7. 
 
 Jackson v. Gumaer, 530. 
 
 Jackson v. McMurray, 268. 
 
 Jackson v. Sisson, 7. 
 
 James v. Elliott, 154. 
 
 Jennings v. Broughton, 154. Pko- 
 
 BPBCTUS. 
 
 Jerome v. Ross, 276, 300, 637. 
 Jesus College v. Bloom, 380. 
 Johnson v. Fleet, 123. 
 Johnson v. Johnson, 575. 
 Johnson v. Randall, 310. 
 Johnson v. Wide West Co., 454. 
 Johnstown Iron Co. v. Cambria Co., 
 206, 20S, 218, 234, 236. License. 
 
 Jones V. , 259, 260. 
 
 Jones V. Felch, 123. 
 
 Keeler v. Green, 637. Quarkt. 
 
 Keller v. Johnson, 13. 
 
 Kelley v. Sheldon, 63. 
 
 Kelly V. Donahoe, 202. 
 
 Kelsey v. Northern Light Co., 153. 
 
 Pleading. 
 Kensler v. Clark, 358. 
 Kenton V. Railway Co., 579. 
 Kershaw v. Thompson, 279. 
 Kidd V. Dennison. 498. 
 Kidd V. Laird, 450, 525. 4 M. R 
 
 571. 
 Kimball V. Green, 310. 
 Kincheloe v. Holmes, 188. 
 Kinder v. Jones, 474. 
 Kingsley v. Wallis, 43. 
 Kinnerman>. Henry, 363. 
 Kinsler v. Clarke, 320, a39. 
 Kirkpatrick v. White, 185. 
 KnatchbuU v. Fearnhead, 31. 
 
 Kramph v. Hatz, 185. 
 Kynaston v. East India Co., 696. 
 
 Lade v. Shepherd, 308. 
 
 Lady Bryan Co. v. Lady Bryan 
 
 Co., 540, 628. 7 M. R. 478. 
 Laird v. Boyle, 638. Pleading. 
 Lake Superior Co. v. Drexel, 74, 
 
 155. 
 Lance's App. 503. 
 Lane v. Newdigate, 503, 515, 521, 
 
 522, 614. 620. 
 Langdon v. Fogg, 74, 155. 
 Lathrop V. Pollard, 138. 
 Law V. Grant, bTi. 7 M. R. 56. 
 Lawrence's Appeal, 565. 7 M. R. 
 
 542. 
 Lawrence v. Knowles, 43. 
 Lawrence v. Trustees, etc., 123. 
 Lawrence v. Van Deventer, 122. 
 Lazard v. Wheeler, 457. 
 ],eachv. Day, 458,500. 
 Leach v. Leach, 14. 
 Lee V. Alston, 249. 
 lie Fevre v. Le Fevre, 219. 
 Lefler v. Field, 76. 
 Lemon v. Grosskopf, 16. 
 Leslie v. Wiley, 30, 122. 
 Leymanv. Abeel, 210, 221. 
 Life Ins. Co. v. Minch, 122. 
 Little Schuylkill Co. v. Richards, 
 
 601. Negligence. 
 Livingston y. Harris, 123. 
 Livingston v. Livingston, 250, 276, 
 
 315, 321, 328, 530, 636. 
 Livingston v. Peru Co., 154. 
 Lloyd v. Passingham, 371, 383, 384. 
 Long V. Woodman, 113. 
 Lord Abinger v. Ashton, 615, 617, 
 
 621, 623. 6.M. R. 1. 
 Lord Barnard's case, 249. 
 Lord Courtown v. Ward, 614. 
 Lord Mountjoy's Case, 206, 209, 
 
 221, 222. License. 
 Lorenz v. Jacobs, 559, 638. 
 Loring v. Illsley, 450. 
 Lowndes v. Settle, 466, 474, 475. 
 Low V. Connecticut R. R., 64. 
 
XII 
 
 Cases Cited. 
 
 Lowther V. Stamper, 638. 
 Luckhart v. Ogden, 41. 2 M. R. 
 
 601. 
 Lumbard v. Aldrich, 689. 
 Lunsford v. La Motte Co., 539. 
 
 License. 
 Lutz V. Linthicum, 649. 
 Lynch's App., 17. 
 Lvnch V. Willard, 123. 
 Lyn V. Pierce, 278. 
 Lyon V. Jerome, 202. 
 Lyon V. Woodman, 469, 577. 7 M. 
 
 R. 493. 
 Lysney v. Selby, 13. 
 
 Maden v. Veevers, 452, 686. 
 
 Mallow V. Hiiide, 346. 
 
 Mammoth Co.'s Appeal, 560. 7 M. 
 R. 460. 
 
 Marker v. Marker, 508. 
 
 Marquis of Lansdowne v. Marchion- 
 ess of Lansdowne, 278. 
 
 Marsh v. Falker, 75. 
 
 Marsh v. Whitmore, 151. 
 
 Marshall v. Baltimore & 0. R. R. 
 686. 
 
 Marston v. Simpson, 154. Rescis- 
 sion. 
 
 Martin v. Browner, 422. 1 M. R. 
 613. 
 
 Mason v. Lord, 30, 31. 
 
 Mason v. Thompson, 163. 
 
 Massie v. Watts, 472. 
 
 Masson v. Bovet, 31, 39, 43, 122, 
 123. 
 
 Mather «. Trinity Chtirch, 278. 
 Tbovbu. 
 
 Matteawan Co. v. Bentley, 31. 
 
 Matthews v. Bliss, 13. 
 
 Maule T. Ashmead, 482. 
 
 Mautev. Gross, 153. Oil. 
 
 Mayer v. Shoemaker, 32, 39. 
 
 Mayne v. Griswold, 122. 
 
 Mead v. Mali, 123. 
 
 Meeker v. Winthrop L Co., 133. 
 
 Meffhan v. Mills, 278. 
 
 Menard v. Hood, 637. 
 
 Merced M. Co. v. Fremont, 373, 418, 
 458, 502, 539, 628. 7 M. R. 309. 
 
 Mexhorough v. Bower, 516, 637. 2 
 
 M. R. 92. 
 Meyer v. Amidon, 75. 
 Michigan Cent. R. R. v. Carrow, 
 
 168. 
 Millenovich, Estate of, 192. 
 Millet V. Craig, 102. 
 Miller V. Larson, 14. 
 Minor v. Mechanics Bank, 648. 
 Minturn v. F. L. & T. Co. 123. 
 Minturn v. Main, 31, 124. 
 Mitchell V. Dors, 255, 300, 400, 636. 
 
 7 M. R. 250. 
 Mitchell V. United States, 337. 
 Mogg V. Mogg, 821, 474. 
 Monkhoase v. Corp. of Bedford, 630. 
 Mooney v. Miller, 113. 
 Moore v. Burke, 76. 
 Moore v. Fen-ell, 305, 309, 313, 336, 
 
 407, 516. 7 M. R. 281. 
 Moore v. Hylton, 542. 
 More V. Massini, 330, 539. 7 M. R. 
 
 455. 
 Morgan v. Bliss, 13. 
 Morgan v. Chamberlain, 14. 
 Morphett y. Jones, 277, 839. 
 Morris Co. v. Central R. R. Co., 579. 
 Morrison v. Dapman, 428. 
 Morton v. Scull. 64. 
 Morton v. Superior Court, 638. 
 Moseley v. Moseley, 14. 
 Munch V. Cockrell, 31. 
 Munson v. TrijOn, 494, 577. 7 M 
 
 R. 469. 
 Murdock's Case, 515. 
 Murphy v. Campbell, 234. 
 Murray v. Knapp, 571. 
 McCabe v. Burns, 1, 2. 6 M. R 
 
 665. 
 McCarty v. Patton, 645. 
 McClintock v. Brijden, 323. Public 
 
 Domain. 
 McCrea v. Purmort, 122. 
 McCreery v. Brown, 559. 
 McCurdy v. Noak, 637. 
 McDonald v. Bear Siv. Co., 450 
 
 1 M. R. 639. 
 McDowell V. Lehigh Val. Co. 188. 
 McFarland v. CulLertson, 597. 
 
Cases Cited. 
 
 XIII 
 
 McGarrell v. Murphy, 559. 
 
 McGan v. O'Neil, 57. 
 
 McGoon V. Ankeny, 455. 1 M. R. 
 
 9. 
 McHeniy v. McCall, 235. 
 McKee v. Judd, 456, 457. 
 McLanahan v. Insurance Co., 122. 
 McMillen v. Brown, 195. 
 McQueen v. Middletown Co., 688. 
 McVickar v. Wolcott, 262. 
 
 Nash V. Church, 4.38. 
 
 Natoma Co. v. Clartin, 458, 459, 
 
 511. 
 Negley v. Lindsay, 43, 45, 154. 
 Nelhs V. Chuk, 14. 
 Nelson v. O'Neal, 637. 4 M. R. 275. 
 Nevada Co. v, Kidd, 438, 637. 
 New Boston Co. r. Pottsville Co., 
 
 478, 638. 5 M. R. 118. 
 New Haven v. Sargjent, 202. 
 New Jei-sey Co. v. Franklin Co., 637. 
 New Jersey R. R. Co. v. Long 
 
 Branch Com'rs, 608. 
 New York Ins. Co. v. Nat. Pro. Ins. 
 
 Co., 32. 
 New York Ins. Co. v. Roulet, 122. 
 New York Printing Est. v. Fitch, 
 
 276. 
 Nichols V. Jones, 528, 638. 
 Nichols V. Michael, 31. 
 Nicodemua v. Nicodemus, 571, 579. 
 Norris v. Tmjloe, 127, 153. 1 M. 
 
 R. 383. 
 North V. Turner, 457. 
 Northeastern Co. v. Crossland, 636. 
 Northeast, J. R. v. C. R. Co., 515. 
 Norway v. Rowe, 321, 340, 341, 454. 
 Nuneaton Local B'rd v. Gen'l Sew- 
 age Co., 620. 
 
 Oberlander v. Speiss, 75. 
 
 Occum Co. V. Sprague M. Co., 581. 
 
 O'Donnel v. Seybert, 123. 
 
 Old Telegraph Co. v. Central Co., 
 
 532. 7 M. R. 555. 
 Oliver v. Walsh, 456. 
 OpMr Co. V. Carpenter, 237. 4 M. 
 
 R. 640. 
 
 Orange County Bank v. Brown, 171. 
 Oregon Co. v. TruUenyer, 642. 4 
 , M. R. 247. 
 
 •Osborn v. U. S. Bank, 344, 356. 
 Otis T. Raymond, 13. 
 Outram v. Morewood, 446. 5 M. R. 
 
 484. 
 Overend, Gurney & Co., In re, 31. 
 Overton v. Davisson, 299. 
 Owen V. Ford, 579. 
 
 Packet Co. v. Clough, 63. 
 
 Page v. Parker, 153. 6 M. R. 514. 
 
 Paine v. Wilcox, 64. 
 
 Park Bank v. Watson, 142. 
 
 Parker v. Parker, 637. Receiver. 
 
 Parker v. Sears, 499. 
 
 Parker v. Wood, 381. 
 
 Parrott v. Palmer, 257, 637. 
 
 Partenheimer v. Vanorder, 601. 
 
 Partridge v. McEinnetj, 330. 1 M. 
 
 R. 185. 
 Pasley v. English, 299. 
 Patterson v. Hitchcock, 41. 5 M. 
 
 R. 542. 
 Patterson v. Miller, 411. 
 Patterson v. Supervisors, 559. 
 Patton V. Goldsborough, 235. 
 Payne v. Elliot, 155. 
 PearaoU v. Chapin, 45. 
 Peekham v. North Parish, 688. 
 Pence V. Langdon. 154. Rescission.^ 
 Penneman v. Munson, 122. 
 Fenniman v. Winner, 154. 2 M. R. 
 
 448. 
 Pennsylvania v. Wheeling Bridge 
 
 Co., 349, 350. 
 People V. Bell, 310. • 
 People V. Common Pleas, 310. 
 People V. Gold Run Co., 638. 
 People V. Judges of Washington, 
 
 310. 
 People V. Morrill, 458. 
 People V. Olds, 310. 
 People V. Page, 180. 
 People V. Sloper, 180. 
 People V. Superior Court, 310. 
 People V. Tioga C. P., 123. 
 Perkins v. Collins, 263. 
 
XIV 
 
 Cases Cited. 
 
 Perkins v. Prout, 153. 2 M. E. 139. 
 
 Perkins v. Savage, 14. / 
 
 Perkins v. Sterrett, 155. 
 
 Perrine v. Striker, 123. 
 
 Perry v. Knott, 31. 
 
 Perry v. Parker, 353, 355, 383, 384. 
 
 Peter v. Wright, 122. 
 
 Peterson v. Speer, 9. 
 
 Pettibone v. La Crosse Co., 579. 
 
 Phalen v. Clark, 16. 
 
 Phillips V. Homfray, 155. 
 
 Pickering v. Stapler, 234. 
 
 Pigot V. Bullock, 249. , 
 
 Pillsworth T. Hopton, 316, 363, 354, 
 
 355. 
 Pinkerton v. Woodward, 180. 
 Pioneer Co. v. Baker, 155. 
 Plant V. Stott, 503. 6 M. R. 175. 
 Player V. Roberts, 251. 
 Poor V. Carleton, 340, 358, 3£0, 383, 
 
 384, 524, 542. 
 Port V. Williams, 13. 
 Porter v. McClnre, 128. 
 Post V. Pearsall, 234. 
 Pratt V. Brett, 614. 
 Preston v.Gressom'sDistributees, 262. 
 Price V. Keyes, 123. 
 Puinpelly v. Green Bay Co., 578. 
 Purcell V. Nash, 255, 636. 
 Pusey V. Wright, 485. 
 Putnam v. Hubbell, 30, 32. 
 
 Ragan v. McCoy, 13. 
 Railroad Co. v. Boody, 122. 
 Rankin v. Huskisson, 515, 523. 
 Rawlins v. Wickham, 31. 
 Read v. Contequa, 691. 
 Beal Del Monte Co. v. Pond Co., 
 257, 419, 460, 500. 7 M. R. 452. 
 Reddall v. Bryan, 499. 
 Reese Riv. Co., In re, 155. 
 Reid V. Gifford, 499, 500. 
 Kenton v. Marijott, 154. Moktgagb. 
 Rerick v. Kern, 219, 573. 
 Rex V. Barnard, 31, 122. 
 Reynolds v. Perkins, 507. 
 Rhodes v. Dunbar, 579. 
 Bice's Apiyeal, 153. 3 M. R. 638. 
 
 Richards' Appeal, 579. 
 
 Richards v. Schlegehnich, 172. 3 
 
 M. R. 78. 
 Richmond v. Smith, 163. 
 Richter y. Poppenhausen, 128. 
 Riddle v. Murphy, 235. 
 Ringgold V. Haven, 156, 157. 
 Ritger v. Parker, 234. 
 Robb V. Robb, 428. 
 Roberts v. Anderson, 340, 362, 369, 
 
 524. • 
 
 Roberts v. Wilson, 584. 4 M. R. 498. 
 Robertson v. Smith, 564. 7 M. R. 
 
 196. 
 Robinson v. Campbell, 349. 
 Robinson v. Howard, 450. 
 Robinson v. Lord Byron,474, 515, 522. 
 Robinson v. Smith, 31, 122. 3 M. 
 
 R. 443. 
 Rochdale Canal Co. v. King, 614. 
 Rogers v. Cooney, 589. Tailings. 
 Rogers v. Linton, 507. 
 Rogers v. Tennant, 559. 
 RoUeston v. New, 620. Lease. 
 Rollins V. Wickham, 122. 
 Ross V. Dysart, 482. 
 Ross V. Estates Inv. Co., 31. 
 Ross V. Mather, 128. 
 Rowe V. Portsmouth, 578. 
 Rowe V. Osborne, 43. 
 Russell V. Elliott, 310. 
 Rutler V. Smith, 425. 
 Rynd V. Rynd Oil Co., 203. 5 M. E. 
 
 275. 
 
 Sage V. Sherman, 75, 123. 
 
 Salter v. Ham, 123. 
 
 Sanborn v. Belden, 558. 
 
 Sandford v. Handy, 13. 
 
 San Francisco v. Calderwood, 200. 
 
 San Mateo W. Wks. v. Sharpstein, 
 
 558. 
 Saratoga & S. R. R. Co. v. Row 
 
 32, 124. 
 Saunders v. Hatterman, 13. 
 Sayer v. Pierce, 268. 1 M. R. 72. 
 Scheetz' Appeal, 466. 
 Sohenck v. Conover, 629. 
 Schlects' Appeal, 563. 
 
Cases Cited. 
 
 XV 
 
 Scholfleld V. Templer, 65. 
 
 Scott V. Kittanning Co., 29. 3 M. 
 
 R. 159. 
 Scott V. Depeyster, 75. 
 Scott V. Wharton, 277. 
 Sea Insurance Co. v. Ward, 310- 
 Senior v. Pawson, 615. 
 Seymour v. Wilsop, 32, 122. 
 Shai-p V. New York, 64. 
 Shaw V. McGregor, 428. 
 SJiaw V. Stenton, 480. Lease. 
 Shelton v. Tiffin, 334. 
 Shepard v. Sandl'ord, 123. 
 Shields v. Barrow, 506, 508, 518. 
 Shoemaker v. Keely, 123. 
 Short V. Stevenson, 29. 6 M. R. 
 
 629. 
 Shotwell V. Mali, 75. 
 Simar v. Canaday, 122. 
 Sirnonn v. Vulcan Co., 9, 144. 6 M. 
 
 R. 623. 
 Simonton v. Winter, 648. 
 Slaughterhouse Cases, 309. 
 Sloan V. Lawrence Furnace, 528. 5 
 
 M. R. 659. 
 Smith V. City of Rome, 202. 7 M. 
 
 R. 306. 
 Smith V. Collyer, 320, 474. 
 Smith V. Hibernian M. Co., 345, 507. 
 Smith V. Lowry, 261. 
 Smith V. Mariner, 63. 
 Smith V. Morris, 621. Lease. 
 Smith V. Pettingill, 300. 
 Smith V. Richards, 55, 75, 153. 
 Sobey o. Thomas, 573. 4 M. R. 
 
 359. 
 Soles V. Hickman, 7. 
 Sortore V, Scott, 122. 
 Soule V. Daws, 450. 
 Southoote's Case, 221. 
 Sparhawk v. Union Pas. Ry., 580. 
 Sparrow v. Strong, 313. 2 M. R. 
 
 320. 
 Speed V. Hann, 172. 
 Spencer v. Bir. R. Co., 515. 
 Spencer V. Wilson, 262. 
 Sprague v. Tripp, 202. 
 Squier v. Gale, 310. 
 Stainniger v. Andrews, 589, 596. 
 
 Stark V. Puller, 185. 
 
 State V. Judge, 579, 
 
 Steamboat Co. v. Livingston, 499. 
 
 Steams v. Barrett, 645. 
 
 Steele v. Kinkle, 63. 
 
 Stephens v. Huss, 8. 
 
 Stevens v. Beekman, 261, 276, 300. 
 
 Stevens v. So. Devon Ry. Co., 416. 
 
 Stevens V. Williams, 237, 632. 1 M. 
 
 R. 559. 
 Stevenson v. Westfall, 132, 
 Stoakes v. Barrett, 323. 
 Stockhridge Co. v. Cone Iron Works, 
 
 667. 6 M. R. 317. 
 Stokely v. Robbstown Co., 202. 
 Stonecifer v. Yellow Jacket Co., 
 
 154. 3 M. R. 4. 
 Storer v. Gt. Western Ry. Co., 620. 
 Storm V. Mann, 353, 355, 499, 536. 
 Story V. Lord Windsor, 27S. 
 Strong V. Peters, 13. 
 Swan V. Timmons, 666. 
 Swartz V. Swartz, 234. 
 Swartzer v. Gillett, 14. 
 Sweet V. Bradley, 75. 
 Swift V. Sheppard, 418, 628. 
 
 Tallman v. McCarty, 683. 
 
 Tartar v. Spring Creek Co., 323. 
 
 Timber. 
 Taylor v. Burnsides, 299. 
 Taylor v. Dougherty, 23'>. 
 Taylor v. Bolter, 180. 3 M. R. 322. 
 Taylor V. Luther, 338. 
 Taylor v. Salmon, 507. 
 Terrell v. Ingersoll, 666. 
 Thomas v. Hopper, 166. 
 Thomas v. Jones, 253. 
 Thomas v. Oakley, 300, 317, 474, 
 
 530, 639. 7 M. R. 254. 
 Thomas v. Railroad Co., 153. 
 Thomas Co. v. Allentown Co., 638. 
 
 Inspection. 
 Thompson v. Matthews, 4S5. 
 Thompson v. Salmon, 13. 
 Thompson v. Tophani, 507. 
 Thorn v. Sweeney, 305, 546, 583, 
 
 586, 588. 7 M. R. 564 
 
XVI 
 
 Cases Cited, 
 
 Thoriiburgh v. Savage Co., 638. 7 
 
 M. R. 667. 
 Tiley v. M&yers, 480. 4 M. R. 320. 
 Tipping V. Eckersley, 614. 
 Titcomb v. Kirk, 196. 5 M. R. 10. 
 Tobin T. Walkinshaw, 340, 341, 345, 
 
 346, 370. 
 Townsend v. Bogart, 75. 
 Tradesman's Bank v. Merritt, 122. 
 Travis v. Tait, 166. 
 Trenchard v. Wanley, 63. 
 Troup V. Haight, 530. 
 Tuolumne County e. Chapman, 330. 
 
 Nuisance. 
 Taolumne Connty v. Stanislaus 
 
 County, 310. 
 Tyler v. Williamson, 208. 
 
 Udell v. Atherton, 64. 
 
 Union Bank v. Mott, 123. 
 
 Union Co. v. Bliven Co., 236. 3 M. 
 
 R. 107. 
 United R. R. v. Standard Co., 604. 
 United States v. Gear, 358, 373. 
 
 Trespass. 
 United States v. Montgomery, 180. 
 United States v. Parrott, 330,407, 
 
 452, 478, 503, 516, 524, 667. 7 
 
 M. R. 335. 
 
 Van Alen v. American Bank, 122. 
 
 Vane v. Lord Barnard, 248. 
 
 Vangelin v. Goe, 564. 
 
 Van Rensselaer v. Radcliff, 210. 
 
 Vansickle v. Haines, 114. Wa- 
 ter. 
 
 Van Walkenbjrgh v. Rah way Bk., 
 630. 633. 
 
 Vanzandt v. Argentine Co., 309. 7 
 M. R. 634. 
 
 Varney v. Pope, 580. 
 
 Vermont Co. v. Windham Bank, 1. 
 3 M. R. 312. 
 
 Vernon v. Keys. 107. 
 
 Vervalen v. Older, 638. Mobt- 
 
 GAGE. 
 
 Vigera v. Pike, 153, 154. 
 Vinal V. West Va. Co., 638, 
 Voorhees v. Earl, 31. 
 
 Voorhie v. Childs, 123. 
 
 Wakeman v. Dalley, 46, 75, 76. 
 
 Walbum v. Ingilby, 6.32. 
 
 Waldron v. Marsh, 454, 499, 567. 
 
 7 M. R. 305. 
 Walford v. WaUord, 630. 
 Walker v. Fletcher, 696. 8 M. R. 1. 
 Walker v. Hough, 110. 
 Walker v. Tiffin Co., 291. MoKT- 
 
 GAGE. 
 
 Walker v. Tucker, 480. Lease. 
 
 Waltham v. Broughton, 63. 
 
 Walworth v. Holt, 507. 
 
 Wann t. McGoon, 153. 
 
 Ward V. Eyre, 614. 
 
 Ward V. Seabry, 691. 
 
 Ward V. Van Bokkelen, 524. 
 
 Ware v. Grand Junction Co., 416. 
 
 Waring v. Cram, 180. Prospect- 
 ing Contract. 
 
 Washington University v. Green, 
 515. 
 
 Wason V. Sanborn, 571, 579, 586. 
 
 Watkins v. Cousall, 14. 
 
 WaJson V. Hunter, 379, 485. 
 
 Weed V. Page, 43. 
 
 Weigel V. Walsh, 571. 
 
 Welch V. Sackett, 13. 
 
 Wendtv. Ross, 180. 
 
 West V. Pine, 235. 
 
 West V. Randall, 519. 
 
 Western Co. v. Virginia Co., 6-38. 
 
 Western Union Tel. Co. v. West. 
 & At. R. R., 469. 
 
 West Point Co. v. Reymert, 532. 7 
 M. R. 528. 
 
 West Va. Co. v. Vinal, 638. 
 
 Wheaileii v. Westminster Coal Co., 
 615, 621. Leask. 
 
 Wheaton v. Baker, 31. 
 
 Whelan v. Whe!an, 64. 
 
 Whipley v. Dewey, 428. 
 
 White V. Booth, 499. 
 
 Whitman Co. v. B.iker, 511. 
 
 Whitmoi-e v. Thornton, 259, 262. 
 
 Whittlesy v. Hartford R. R., 498. 
 
 Wichersham v. Orr, 573. 
 
 Widner v. Walsh, 547. 
 
Cases „Cited. 
 
 XVII 
 
 Wilcox V. Jackson, 280. 
 Wilkinson v. Stafford, 192, Teust. 
 Williams V. Kinder, 504. 
 Williams v. Pomeroy Co., 455. 6 
 
 M.'p. 195., ; 
 
 Williams v. Whingates, 507. 
 Wilson V. Fuller, 64. 
 ' Wilson V. McKreth,, 208. 
 Winnipiseogee Lake Co. v. Worster, , 
 
 500, , 
 Winship v. Pitts, 379. 
 Wolfskin V. Malajpwich, 593. 
 Wood V. Ledbiitter, 219. , 
 
 Wood V. Perry, 123. 
 
 Wood V. Sutclifle, 569. ' '■ ■' 
 Woodbury v. De Lap, 155. Plead 
 
 ING. 
 
 Wooding V. Malone, .571. s 
 
 Woodruff V. N. Bloomfield Co., 41 
 
 429, 599, 638. 
 Woods V. Sherman, 181. . 
 Woodward v. Worcester, 578. 
 
 Yancy v. Downer, 276. 
 
 Zabriskie y. Smith,, 123. 
 Zachary v. Curtis, 411. 
 
TABLE OF HEADINGS. 
 
 PACK. 
 
 Featjd, (continued,) 1 
 
 Gold Dust 156 
 
 guaeanty 181 
 
 Gtjaedian and Waed 189 
 
 Highways 193 
 
 Incoepoebal Heebditamkjsts 203 
 
 Injunction 237 
 
 Injunction Bond 639 
 
 Inspection 667 
 
 (xviii) 
 
MINING REPORTS. 
 
 VOL. VII. 
 
 ' BURXS ET AL. V. McCaBE. 
 
 (72 Pennsylvania State, 309. Supreme Court, 1872.) 
 
 ' Deed to associates in corporate name— Rescission. Bums contracted for 
 the purchase of a piece of oil land and sold an interest or share in the 
 adventure to plaintiff. Afterward be had a deed executed to '"The 
 Middletown Oil Company," no such company having heen incorporated. 
 Plaintiff sued to recover the money advanced for his shai-e, on the 
 ground of misrepresentation. Held, that the deed to the Middletown 
 Oil Company passed no title for want of a proper grantee, and that 
 therefore no tender of deed of his interest from plaintiff wa^ necessary 
 to perfect a rescission. 
 
 Rescission effects an estoppel. Plaintiff's only interest in the land could 
 be by virtue of his membership of the company. If his membership in 
 the company was repudiated by a rescission of the contract he would be 
 estopped to claim as -a member of the company. 
 
 Tender of deed into court. Making and filing with the clerk, of a deed of 
 release, after suit brought, allowed in this case. 
 
 Admissions of conspirators. The acts and declarations of one of several 
 parties acting in concert in an illegal transaction for their joint benefit, 
 are the acts and declarations of all. 
 
 Sereral action. Other persons purchased stock at the same time as the 
 plaintiff and under like circumstances. Held, the several contract of 
 each, and that upon rescission the defrauded party alone was entitled 
 to recover. 
 
 November 11, 18*'2. Before TrroMPSO.^, 0. J"., Eead, Aa- 
 NEW, Sharswood and Williams, JJ. 
 
 Error to the District Court of Allegheny County, No. 46, 
 to October and November Term, 1872. 
 
 This was an action of assumpsit brought to August term, 
 1867, by "William P. McCabe against John Burns and Samuel 
 Stevenson. 
 
 > McCabi V. Burns, 6 M. R. 665. 
 
 a Vermont Co. v. Windham Bank, .S M. R. 312. i 
 
 (1) 
 
2 Featjd. > 
 
 The declaration was that the defendants represented to the 
 plaintiff that they had entered into an agreement with Daniel 
 Smith to pnrchase from him a piece of oil land of eight acres, 
 in Columbiana county, Ohio, for $36,000, and that they desired 
 to form a company to pay for said land and complete said pur- 
 chase, the terms of whieh were one half cash and one half in 
 sev'en months; that on these representations the plaintiff 
 agreed to become a purchaser with the defendants and others, 
 ot' the said land, and to take one share of $500 in the company 
 so formed, one half to be paid in cash and the other half in 
 seven months; in pursuance of this agreement the plaintiff 
 paid the defendants $250 and gave his note for $250 payable 
 in seven months. The plaintiff averred that the representa- 
 tions were untrue; that the land was not good oil territory, 
 was not situated in the place represented, and that defendants 
 had not agreed to pay Smith $26,000 but only the sum of 
 $4,000, and therefore an action had accrued to the plaintiff to 
 have from the defendants the said sum of $250. 
 
 The case has been before tried and the judgment reversed 
 in the Supreme Court. It is reported as McCabe v. Burns, 
 16 P. F. Smith, 356. 
 
 On the trial of the case, November 20, 1871, before Kiek- 
 PATEioK, J., the plaintiff gave evidence by Alfred McCabe, 
 that about the I7th of January, 1866, there was a meeting at 
 a school house of certain persons of Moon township, at wiiich 
 Burns, one of the defendants was present. The plaintiff also 
 was present and a number of other persons. Burns repre- 
 sented that he and Stevenson had a piece of property at 
 Smith's Ferry bought from Daniel Smith. He said it lay on 
 Little Beaver Creek, "opposite the tree derrick." He said 
 they were to pay $26,000 for it, $3,200 per acre. They had 
 got it for their neighbors and were getting up a company, and 
 did not want any one in but tiieir friends, and they gave it at 
 the cash price of the property. The plaintiff then agreed to 
 subscribe. There was a meeting on the 27th of January at 
 J;he school house for the purpose of getting up the Middletown 
 t)il Company. Both Burns and Stevenson were present. 
 The $250 was then paid. A committee was appointed to ex- 
 amine the property. It was not located where it had been 
 represented, and was not on the creek. Burns afterward said 
 
BuKNs V. McCabe. 3 
 
 tliey had given but $16,000 for the property. There were to 
 be fifty-two shares. 
 
 Kiohard Gracey testified that Burns said the land had been 
 sold to the Middletown Oil Coiupaiiy. 
 
 W. P. McOaibe, plaintiff", testified that he subscribed for /i 
 share of stock in the Middletown Oil Company, and paid 
 $350 at Middletown, at the school house, and gave a note for 
 $250. The money was paid to Burns, who handed it to 
 Stevenson; he delivered the receipt to plaintiff"; the receipt 
 was : 
 
 " Moon Township, Jan. 27, 1866. 
 
 "Received of W. P. McOabe, two hundred and fifty dollars, 
 the first installment, one share, on the oil lands purchased by 
 John Burns and Samuel Stevenson, located in St. Clair town- 
 ship, Columbiana county. State of Oliio, CD the Little Beaver 
 Creek, Smith's Ferry, 
 
 $250.00. John Burns, 
 
 Samuel Stevenson." 
 
 Much evidence was given on the question of misrepresen- 
 tation by the defendants. 
 
 The plaintiff proposed to file a quitclaim deed to defend- 
 ants of any interest he might have in the lands of the Middle- 
 town Oil Company, and the deed was filed by leave of the 
 court, under objection and exception by the defendants. 
 
 There was in evidence a dteed dated March 1, 1866, from 
 Daniel Smith to the " Middletown Oil Company, their heirs 
 and assigns," for the land in question, the company having 
 never been incorporated, nor having any articles of associ- 
 ation. 
 
 There was evidence that the plaintiff gave notice to Burns 
 that he rescinded the contract and had demanded from Burns 
 the repayment of the money. This was before bringing the 
 suit. 
 
 The defendants gave evidence that at the meeting at the 
 school house January 27, 1866, the persons who had before 
 subscribed for stock, organized a company and elected a pres- 
 ident, treasurer and secretary, and a manager. 
 
 There was evidence also in answer to the plaintiff's evi- 
 dence as to misrepresentation, and generally to the plaintiff's 
 case. 
 
4 Fraud, 
 
 There were exceptions to admission of evidence offered by 
 the plaintiff not necessary to notice. 
 The following are plaintiff's points. with their answers: 
 
 1. The conveyance in evidence from Daniel Smith to Mid- 
 dletowh Oil Company, date March 1, 1866, passed no title 
 for the land described therein from Daniel Smith, if the jury 
 find from the evidence that the said company never was in- 
 corporated. 
 
 •Answer: " The first point is affirmed. The land pnrrliased 
 by the defendants was conveyed to the 'Middletown Oil 
 Company,' and if the jury find that this Middletown Oil 
 Company was not incorporated, no estate passed by the con- 
 veyance, and the legal title still remains in the grantor." 
 
 2. If the jury believe from the evidence that the Middle- 
 town Oil Companynever has been incorporated, then no title to 
 the land described in jaid deed, in evidence of March 1, 1S66, 
 passed by said deed to the plaintiff. 
 
 3. If the jury believe from the evidence that it was a share 
 of stock in a company to be formed and incorporated, ft r 
 which plaintiff subscribed, then no title passed to said plaintiff 
 by the deed in evidence. 
 
 Both these points were affirmed. 
 
 5. If the jury believe from the evidence that Samnel 
 Stevenson and John Burns joined in the purchase from Smith 
 and jointly received the money paid by plaintiff" and others, 
 and jointly applied it to the payment on the land to Smith 
 and acted jointly in getting up the company, then all theacis 
 and declarations of John Burns, made when soliciting the 
 subscription from plaintiff, are as binding upon the other de- 
 fendant, Samuel Stevenson, as if he had been present assent- 
 ing thereto. 
 
 Answer: "The fifth point is affirmed. Under the state of 
 facts suggested in and by this point the acts of any one of these 
 defendants are the acts of the other, and so binding upon both." 
 
 8. If the plaintiff was induced by fraudulent representations 
 of defendants, or either of them, to enter into the arrange- 
 ment and pay his money, and no title has ever passed to plaint- 
 iff, then he is entitled to recover back his money. 
 
 Answer: "The sixth point is affirmed, only, however- and 
 if you further find that the plaintiff was" prejudiced and in- 
 
BuBNS V. McCabe. 5 
 
 jnred by these fraudulent representations, and further, that as 
 soon as he discovered fraud or deception, or lie, as yon may 
 clioose to call it, or within a reasonable time thereafter, he 
 discovered and disapproved the contract, and gave the defend- 
 ants to understand, and how by words, or acts', or both, that he 
 would not be bound by it, in a word, that he did not play 
 ' fast and loose,' waiting to see whether his venture was a suc- 
 cess or a failure, and promptly upon discovering the wrong 
 tliat had been put upon him, rescinded the contract and noti- 
 iied the defendants that he would not stand to or be bound by 
 it, if, and unless you find these additional facts, the point is 
 refused." 
 
 The following are points of defendants, and their answers: 
 
 4. If you believe that the plaintiff, McCabe, and others 
 associated with him as the Middletown Oil Company, with 
 the knowledge that they had not been incorporated, accepted 
 the deed of land from Smith, made to the " Middletown Oil 
 Company, their heirs and assigns," and with that knowledge 
 on the part of McCabe, and with his assent, the said associates, 
 the plaintiff included, continued to exercise ownership over, 
 or to bore for oil on said land, and proceeded to stock out a por- 
 tion thereof to other parties and to sell stock therefor, or used 
 the money derived from such stocking out in boring on the 
 Smith land, the plaintiff, had such an interest in the land as 
 made it his duty to tender to defendants a reconveyance or 
 release of his interest in or right thereto before he could 
 bring this action ; and not having done so, your verdict must 
 be for the defendants. 
 
 Answer: " If the plaintiff took no legal title or estate by 
 the deed of Smith and wife to the Middletown Oil Com- 
 pany, neither one nor all of the acts suggested or enumerated 
 in this point could or would give him such title or estate to 
 this land as would render a reconveyance or transfer by him 
 to the defendants necessary, before his right to this action 
 could accrue. Provided he had it on other and substantial 
 grounds — in other words, if his right of action was complete 
 without this reconveyancCj the fact that he did not first re- 
 convey under the facts stated in this point would be no legal 
 bar to his right to recover in this action." 
 
 6. If you believe from the evidence that the plaintift and 
 
6 Feaud. 
 
 others associated tlieuiselves together as the Middletown Oil 
 Company for the purpose of purchasing land and boring for 
 oil, and that the dofendants were the agents of the said com- 
 pany in the purchase of land from Smith, then any fraud or 
 deception that may have been practiced in such premises 
 would be a fraud on the company, and not on the plaintiff 
 alone, and all the members of the company should have been 
 joined as plaintiff in this action; and that this not having 
 been done, the plaintiff can not recover here, and your verdict 
 must be for the defendants. 
 
 Answer: "The sixth point is refused." 
 The verdict was for the plaintiff for $337.50. 
 The defendants removed the record to the Supreme Court 
 and assigned for error the answers to the points of the parties, 
 and the admissibn of plaintiff's offers of evidence. 
 
 J. H. Bailey and T. M. Maeshall, for plaintiff in error. 
 J. Baeton and K. Woods, for defendants in error. 
 
 The opinion of the court was delivered January 6, 1873, by 
 Williams, J. 
 
 The plaintiff below subscribed for a share in the oil lands 
 purchased by the defendants, "located in St. Clair township, 
 Columbiana county, State of Ohio, on the Little Beaver Creek, 
 Smith's Ferry," and paid them one half of the price in money 
 and gave his note payable at a future day for the residue. He 
 refused to pay the note after it became due, and upon the de- 
 fendant's refusal to refund the money which he had pf^d, 
 brought this action to recover it back on the ground that tliey 
 had been guilty of such fraud as justified him in rescinding 
 the contract. 
 
 Under the instructions of the court the jury found that 
 the plaintiff was induced to enter into the contract by the 
 false and fraudulent representations of the defendants as to the 
 location, value and consideration paid for the land, and that 
 upon discovering the fraud, he rescinded the contract and 
 gave them notice that he would not be bound by it; and in 
 accordance with this finding they returned a verdict in his 
 
BuKNS V. McCabe. 7 
 
 favor for tlie amount paid the defendants: It was insisted on ' 
 the trial that the plaintiff was not entitled to recover, because 
 he did not make or tender a reconveyance of his interest in the 
 land to the defendants before bringing the action. But the 
 court below being of the opinion that the plaintiff had no 
 title to the land, instructed the jury in substance that he was 
 not bound to make or tender a reconveyance. Whether, if 
 the plaintiff had such title, he was bound to tender a recon- 
 veyance of it or not, is the main question presented by the 
 assignments of error. It is clear that no title to the land vested 
 in the plaintiff, under the written contract between the par- 
 ties. It does not purport to convey a definite interest in the 
 land; it does not designate the price or quantity, nor does 
 it describe its location with sufficient certainty. Both the 
 consideration and subject of the contract are undefined. 
 Where either is left uncertain, the contract is legally in- 
 complete, and therefore void: Soles v. Hickman, 8 Harris, 
 180. If, then, no title passed to the plaintiff under the 
 contract, had he any such interest in the land under the 
 deed of Daniel Smith to the Middletown Oil Company as 
 made it necessary for him to tender a reconveyance before 
 commencing the action? The defendants purchased the land 
 from Smith, and at their request he conveyed it by deed, duly 
 acknowledged, to "The Middletown Oil Company of Allegheny 
 County and State of Pennsylvania, their heirs and assigns." 
 The company never had any articles of association or charter 
 of incorporation. It was composed, as the evidence shows, of 
 the defendants and those to whom they sold shares or interests 
 in the land. The learned judge instructed the jury that if 
 the company was not incorporated, no title passed to the plaint- 
 iff by the deed. This instruction was in conformity with the 
 opinion of this court when the case was here on a former writ 
 of error {McCabe y. Burns, 16 P. F.Smith, 356), and is sup- 
 ported by the following authorities; Jackson v. Sisson, 2 
 Johns. Cases, 321; Jackson v. Cory, 8 Johns. 385; Horribeck 
 v.Westbrook, 9 Id. 73; Humble v. Glover, Cro. Eliz. 328; Tlio. 
 Co. Litt. 316, 3 a, among others which might be cited. In de- 
 livering the opinion in Jackson v. Sisson, Kent, J., said: 
 "-There was no legal estate created by the patent, but what 
 vested in the three patentees named. The description of the as- 
 
8 Fraud. 
 
 sociation by the words, ' a settlement of friends on the west side 
 of the Seneca lake' was too vague and uncertain to constitute 
 a competent grantee at law or a cestui que use whose estate 
 the statute would transfer into possession: Saunders on Uses, 
 63, 128. This would be like a grant to the parishioners, or in- 
 habitants of a dale, or to the commoners of such a waste, or to 
 the churchwardens of a parish, which are held to be void grants: 
 Shep. Touch. 235-236." It is not easy to discover any real 
 difference or distinction in principle between that case and 
 the present. But even if the deed to the Middletown Oil 
 Company is sufficient to vest the title in the members of the 
 company as tenants in common on the principle, id cerium 
 quod cerium, reddi poiesi {Huss v. Stepliens, 1 P. F. Smith, 
 282, Siephens v. Huss, 4 Id. 20), the question recurs whether 
 the plaintiff had such title under the deed as he was bound to 
 release or convey. 
 
 A reconveyance or return of the property is only required 
 in order to prevent the party from holding the thing paid for, 
 and recovering the price: Bahcock v. Case, 11 P. F. Smith, 
 427. The deed on its iaae conveys no title or interest what- 
 ever to the plaintiff. If he is not a member of the company 
 he has no title under the deed. WJiether he is a member of 
 the company or not, depends upon the validity of his contract 
 with the defendants. If it was invalid by reason of fraud, 
 and has been rescinded, then all his rights under it, including 
 his rights as a member of the company, fell with its rescission. 
 He has no title or claim to membership independently of his 
 contract, and he has no title to the land independent of his 
 membership. Having rescinded the contract on which his 
 membership depended, how can he have or claim any rights 
 incident to such menibership ? It is not pretended that he is or 
 that he ever has been in the actual possession of the land or 
 that he has received any of its rents and profits. 
 
 If, then, the contract was fraudulent and void, and the plaint- 
 iff has rescinded it, as the jury have found, he has, as it 
 seems to us, no more title to the land conveyed to the com- 
 pany than if the contract had never been made. He is 
 estopped by its rescission and by the recovery of the money 
 from asserting any title or claim to the land. Of what avail 
 to the defendants then, would it be if the plaintiff had exe- 
 cuted to them a o>>nveyance or release before bringino- the 
 
BuENS V. McCabe. "9 
 
 dction? If the deed vests in the defendants and their vendees 
 as members of the company a valid title to the land, tho 
 defendants have a good title to all the estate therein, except 
 the shares or interest held by their vendees. A conveyance 
 from the plaintiff, therefore, would not enlarge their interests 
 or make their title more secure. But if the plaintiff has 
 some shadow of title or possible interest, it seems to us that 
 under the circumstances of this case the deed of release and 
 quitclaim, which he filed in court for the use of the defend- 
 ants, is sufiScient to entitle him to recover. In support of 
 this view we need only refer to the opinion of Thompson, C. 
 J. in^Babcoch v. Case, supra, in which he says: "If equity 
 requires a reconveyance to precede suit, it will be so admin- 
 istered; if it can be protected on the trial, as it may in 
 almost every possible case, it will be so administered. If there 
 be no equity in the case, but only an assumption of it, it 
 ought to be disregarded." Whatever equity the defendants 
 in this case may have had, we think that it was fully pro- 
 tected by the deed filed for their use on the trial. If they 
 liad asked for a reconveyance when the plaintiff demanded 
 his money, doubtless it would have been executed. As it is 
 they liave suffered no loss by the delay. It follows from 
 what we have said, that there was no substantial error in 
 affirming the plaintiff's first, second and third points, and re- 
 fusing the defendant's fourth point. 
 
 Hov was there error in afiirming the plaintiff's fifth and 
 sixth points. It is well settled that where parties to an 
 illegal transaction are shown to have acted in concert for 
 their joint benefit, that the acts and declarations of one are to 
 be rewai-ded as the acts and declarations of all: Peterson v. 
 Speer, 5 Casey, 478. This is the principle underlying both 
 points, and they were rightly aflirmed: Simdns v. Vulcan 
 Oil and Mining Company, 11 P. F. Smith, 202. 
 
 There was no evidence upon which to base the defendants' 
 sixth point, and it was properly refused. The other sub- 
 scribers were not parties to the contract which the plaintiff 
 made with the defendants. It was his individual contract, 
 and upon its rescission he alone was entitled to recover back 
 the money he had paid on the footing of it. 
 
 There is nothing in the other assignments that requires dis- 
 
10 Fraud. 
 
 cussion. The evidence contained in the bills of exception' 
 was properly admitted, and the plaintiffs in error liave no 
 reason to complain of the instructions or of the manner in 
 which the case was submitted to the jury. 
 
 Judgment affirmed. 
 
 Hardy v. Stonebraker. 
 
 (31 Wisconsin, 640. Supreme Court, 1872.) 
 
 Fraud of agent agaiast stranger of no avail to principal. Where a 
 conti-act is valid in its inception, subsequent fraudulent conduct of one 
 of tke contracting parties toward a strang^er, involving the same subject- 
 matter, does not avoid the contract, especially when the stranger is not 
 seeking relief. * 
 
 Facts of the case — Agent to consummate frand, allowed his hire. A 
 agreed with B to let him have $3,000 if he, B, would procure a purchaser 
 of A's lead land at $8,000. He procured a purchaser at this price by 
 fraudulently concealing the fact that he was A's agent, and fraudulently 
 advising the purchaser, as a friend, that the land was worth $8,0 .0 and 
 could not be bought for less, which was not the truth, Hut the pur- 
 chaser sought no relief. Held, that. the original contract, although the 
 commission was large, was not void, and that B could make no use of 
 the fraud of his agent in procuring a purchaser, as a defense to his 
 agreement, to pay the $3,000 commission. 
 
 Appeal from the Circuit Court for Iowa County. 
 
 The plaintiff appealed from a judgment rendered in favor 
 of the defendant, in pursuance of the verdict of a jnry. The 
 following statement of the case was originally prepared by 
 Mr. Justice Cole as a part of his opinion herein: 
 
 "This action is brought to recover the sum of $1,416, 
 alleged to have been received by the defendant for the use of 
 the plaintiff, or which the defendant owed the plaintiff. The 
 material facts out of which the cause .of action arose, or at 
 least so many of them as it is necessary to state in order to 
 understand our remarks upon the instruction given to the 
 jury by the court, and to which exception was taken by tlie 
 plaintiff, may be briefly stated as follows: 
 
Haedy v. Sionebrakee. 11 
 
 "The defendant was the owner of eighty acres of land in 
 La Fayette county, which was supposed to be especially valu- 
 able for the lead mineral which it was thought to contain. In 
 October, 1866, the defendant entered into a written contract 
 with the plaintiff and his father, Joseph A. Hardy, and Dr. G. 
 W. Lee, to lease and sell them the mineral right in this land 
 and the right to mine upon it, for the sum of $2,0(i0; $500 of 
 which was paid down to the defendant, $500 to be paid in one 
 year, and $1,000 in two years from the date of the contract, 
 without interest. The second party to the contract failed to 
 make the second payment, and the contract was abandoned, 
 except that there was an understanding that if the defendant 
 or the other party to the contract could sell the land for a 
 sufficient price, the $500 paid upon the contract was to be 
 refunded. It appears that an arrangement was afterward 
 entered into between the parties to this suit, by which the 
 plaintiff undertook to find a purchaser for this property at 
 •the sum of $8,000, and the defendant agreed, in consider- 
 ation thereof, to pay him all above $5,000 as a compensa- 
 tion for his services in making the sale at that price, and 
 also in this way to repay the $500 which the plaintiff 
 and his co-lessees had paid on the contract which had been 
 forfeited. In other words, the plaintiff was to have all the 
 purchase money above $5,000. 
 
 " This arrangement was made without reference to any par- 
 ticular purchaser. In May, 1868, the plaintiff induced one 
 Capt. John Grant to purchase this property. He informed 
 Grant that the defendant's price was $8,000, and that the land 
 was of great value for its mineral and finally succeededin selling 
 the property at this sum. The evidence is conflicting whether 
 Grant purchased in the first instance the entire property for 
 himself, and afterward sold a one fourth to the plaiiitift", or 
 whether the plaintiff was interested with Grant in the pur- 
 chase to the extent of a one fourth interest from the outset. 
 Previous to the purchase, however, the plaintiff saw the de- 
 fendant, and told him Grant would buy the property at $8,000 
 if the terms of payment would suit, and probably he requested 
 the defendant in tlje negotiations to insist upon $8,000 as the 
 lowest sura he was willing to take. "When the contract was 
 reduced to writing, both the plaintiff and Grant were inter- 
 
12 ' Feaud. 
 
 ested in the purcLase in the proportion of three fourths to 
 Grant and one fourth to the plaintiflf, but whatever monej's 
 were paid by the plaintiff were immediately paid back to him 
 by the defendant. This was all kept from the knowledge of 
 Grant, who doubtless supposed that the plaintiff was acting 
 in the utmost ^ood faith and was paying $2,000 for his inter- 
 est. Grant afterward purchased the interest of the plaintiff, 
 paid for the property and took a deed. It is not denied that 
 the defendant has received $8,000 for the property; nor is it 
 denied that he originally agreed to pay the plaintiff $3,U00 
 if he would find a purchaser at that sum. But the defendant 
 now denies his liability to perform this agreement, on account 
 of the alleged fraud ppacticed by himself and the plaintiff up- 
 on Grant. He claims that the plaintiff is seeking to enforce 
 a contract which was a part of a dishonest, corrupt and fraud- 
 ulent scheme to induce Grant'to pay $8,000 for property which 
 the defendant was willing to sell for $5,000, and therefore that 
 the plaintiff is not entitled to recover any part of the money 
 which was obtained by their joint fraudulent conduct. 
 
 " On the trial, among other things, the court below in- 
 structed the jury that if they should find that through the 
 joint fraudulent representations and conduct of the plaintiff 
 and defendant, Capt. Grant was induced to pay for the land 
 the sum of $8,000, and that the defendant — the plaintiff 
 knowing it — would have been willing to take the sum of 
 $5,000, or thereabouts, as a fair price for the lands, and pay 
 thereon all claims he admitted against the land, the plaintiff 
 could not recover in this action any part of the money ob- 
 tained from Capt. Grant through such dishonest and fraudu- 
 lent transaction. 
 
 " This charge was excepted to by the plaintiff, and its cor- 
 rectness and applicability to the facts of the case are the prin- 
 cipal questions we have to consider on this appeal." 
 
 Wm. E. Caeteb, for appellant, argued that the maxim "/w. 
 pari delicto potior est conditio defendentis" does not apply 
 to this case; that, to make it applicable, the contract between 
 plaintiff and defendant, or their conduct, must have been 
 immoral or illegal — must have worked injury to Grant, 
 and been an intentional fraud upon him, such fraud being the 
 
Hardy v. Stonebeakee. 13 
 
 work not of tlie plaintiff alone, but of both these parties: 
 Broom's Leg. Max., 702; 1 Story's Eq., §§ 203, 298, et seq.; 
 2 Parsons on Con., 769-772, 782; that there was no act done 
 by both these parties to induce Grant to buy, unless it be 
 alleged that they both agreed in misrepresentations relative 
 to the price of the land, or the sum which defendant was will- 
 ing to take for it; and that misstatements relative to the 
 jDrice wliich the seller will take for property, made during the 
 course of the negotiations for a sale, do not constitute fraud: 1 
 Story's Eq., §§ 197-201; Dupont v. Fm/ton, 2 E. D. Smith, 
 424; Sandford v. JIandy, 23 Wend. 260; Saunders y. Mat- 
 terman, 2 Ired. 32; Hawkins v. Campbell, 1 Eng. 513; Du- 
 gan v. Cureton, 1 Ark. 41; Lysney v. Selby, 2 Ld. Eay. 1118; 
 Strong v. Peters, 2 Eoot, 93; Hill v. Bush, 19 Ark. 522; 
 Fields V. Rouse, 3 Jones' Law, 72; Port v. Williams, 6 Ind. 
 219; Foley v. Covigill, 5 Blackf." 18 ; Cronlc v. Vole, 10 ind. 485 ; 
 
 2 KenVs Com., 485, 486. 2. He contended that the evidence 
 showei the lands to be worth the fall price paid by Grant, 
 and tlie latter, therefore, was not injured by the transaction; 
 and there can be no fraud where no one is injured: 2 Par- 
 sons .on Con., 771, 772; 1 Story's Eq., § 203; AUeman v. 
 Both, 12 Wis. 90; Castleman v. Griffin, 13 Id. 538; Barber 
 V. \Eilbourn, 16 Id. 489; Freeman v. McDaniel, 23 Ga. 
 354; Fuller v. Hodgdon, 25 Me. 243; Keller v. Johnson, 1] 
 Ind. 337; Morgan v. Bliss, 2 Mass. Ill; Otis v. Raymond, 
 
 3 Conn. 413; Ide v. Gray, 11 Yt. 615. 3. The relation be- 
 tween Grant and the plaintiff was not that of partners, but 
 merely that of tenants in common of the land after its pur- 
 chase (3 Black. Cjra., 191; Welch v. Sachett, 12 Wis. 253), 
 and, plaintiff was under no obligation to disclose to his co- 
 tenant the terms upon which he obtained his own one fourth 
 interest, or give him the benefit of the arrangement: Matthews 
 V. Bliss, '2,^ Pick. 48; Thompson Y.Salmon, 18 Gal. 632; 
 Eagan v. McCoy, 29 Mo. 356. Nor was plaintiff the agent 
 of Grant. But even if his relations to Gr int were such tliat 
 the latter was entitled to the benefit of any bargain he might 
 make with the defendant, that is a matter with which defend- 
 ant has no concern whatever. 
 
 P. A. Oeton and M. M. CoTII^vE^^, for respondent, contend. 
 
14 Featjd, 
 
 ed that the case falls within the maxim " Ex turpi contractu 
 non oritur actio,'" that while no compensation, however 
 great, paid by defendant to plaintiif for making sale of the 
 land to Grant, wonld of itself Iiave been a fraud upon the 
 latter, since in that case Grant would have treated with plaint- 
 iff as defendant's agent, and bought with his eyes open. The 
 important fact here is, that plaintiif, while agent for the seller, 
 formed a confidential relation with the buyer; that whether 
 tlie plaintiff" and Grant became partners or not, it is certain 
 that when they agreed to buy this land as tenants in common, 
 each was bound to good faith with the other in negotiating 
 for the, purchase, and neither could secure an advantage by 
 the purchase which the other was not entitled to share; that 
 each acted, in mating the purchase, for himself and as agent 
 for the other, and any advantage secured by one, like a bonus 
 from thi seller for making the purchase, was a gross fraud 
 upon his co-purchaser, for which the latter could maintain an 
 action at law, or, by suit in equity, compel the fraudulent pur- 
 chaser to hold such advantage in trust for him: Collyer on 
 Part., §§170-180; Leach y. Leach, 19, Pick. 76; Anderson 
 V. Lemon, 8 N. T. 236 ; Brown v. Lynch, 1 Paige, 147. Be- 
 sides, the plaintiff' and defendant combined to defraud Grant 
 in the sale of the land; and the sale was eff"ected by absolutely 
 false and fraudulent representations made by both of them as 
 to the price really asked by the defendant for the land. 
 Plaintiff" can not maintain an action to recover bis part of the 
 booty: 2 Parsons on Con., 279; Bartle v. Coleman, 4: Peters, 
 184; Bolt V. Rogers, 3 Paige, 157; PerJcins v. Savage, 15 
 Wend. 412; Dedham Bh. v. Chickering, 4 Pick. 314; Nellis 
 V. Clark, 20 Wend. 24; Moseley v. Moseley, 15 N. Y. 334j 
 Chamherlain v. Barnes, 26 Barb. 160; Morgan v. Chamher- 
 lain. Id. 163; Gale v. Gale, 19 Id. 250; Miller v. Larson, 19 
 Wis. 467; Fargo v. Ladd, 6 Id. 106; Swartzer v. Gillett, 1 
 Chand. 208, and cases there cited; 4 Wash. C. C. 297. 2. A ' 
 person interested as a purchaser can not recover from the 
 vendor commissions for making the sale, unless upon a con- 
 tract to whicii all the parties to the purchase and sale are par- 
 ties: Watkins v. Cousall, 1 E. D. Smith, 65; Dunlap v. 
 Richards, 2 Id. 281. 
 
Hardy t. Stonebeaker. 15 
 
 CoLEj J. 
 
 In the instruction given to tlie jury, as above recited, the 
 circuit, court in effect holds that the contract between the 
 plaintiff and the defendant may be avoided if the parties had 
 practiced a fraud upon Capt. Grant in inducing him to pur- 
 chase the property for $8,000. But is it not plain that the 
 agreement between the plaintiff and defendant was not un- 
 lawful nor opposed to public policy? The counsel for the de- 
 fendant admits — what surely could not successfully be con- 
 troverted — that apy commission, however ^reat, agreed to be 
 paid by the defendant as a compensation for making sale of 
 his land, would not of itself be a fraud upon Grant. For, he 
 says, in that case Grant would have treated with the plaintiff 
 as the agent of the defendant, and bought with his eyes open, 
 and had he paid a price larger than the defendant was willing 
 to take, it would be his own folly, but that the defendant must, 
 nevertheless, pay the agreed commission. But he argues and 
 insists that on account of the confidential relation existing be- 
 tween the plaintiff and Grant, feach was bound to act toward 
 the other with the most scrupulous good faith and sincerity; 
 and that in making the purchase neither could secure an ad- 
 vantage which the other was not entitled to share. The 
 'lounsel, however, in this argument, loses sight of the real 
 issue. This is not a controversy between Grant and the 
 plaintiff, where the former is seeking redress for fraud and 
 jmposition practiced upon him by the latter, or by both him 
 and the defendant. That is a different matter, and is inde- 
 pendent of this agreement which the plaintiff is seeking to 
 enforce. For, as we have already remarked, the contract be. 
 tween these parties was a legal one, not vitiated, as we can 
 see, by the alleged fraud practiced upon Grant. It matters 
 not what fraud and misrepresentation were employed to in- 
 duce Grant to purchase the property and pay $8,000 therefor, 
 since the cause of action here is unconnected with, or is not 
 founded upon, that illegal transaction. The test is, was the 
 contract upon which the plaintiff is seeking to recover, void 
 for fraud, or one which springs ex turpi causal It seems to 
 us. that it is not. It is obvious that the defendant is seeking- 
 to avail himself of a fraud practiced upon Grant to defeat a 
 
16 Fraud. 
 
 recovery upon a valid contract. We assume, for the purposes 
 of the argument, that the conduct of these parties in making!; 
 the sale to Grant was illegal and fraudulent, for which tlie 
 law will aiford him redress. And yet, if this cause of action 
 is unconnected with the illegal transaction, and is founded 
 upon a distinct and independent contract, it will not be 
 affected by their subsequent iinlawful conduct. When this 
 agreement to pay this commission was entered into, the parties 
 had no reference to Grant, nor any other individual. And 
 this agreement was xinobjectionable in law or morals. Bnt 
 afterward, in making the sale, the allegation is, the parties 
 were guilty of fraudulent conduct and misrepresentations in 
 inducing Grant to pay $8,000 for the property, when the de- 
 fendant was willing to take $5,000. Suppose they were; let 
 them answer, tlien, to the party injured. The maxim relied 
 on by the counsel for tlie defendant. Ex turpi contractu non 
 oritur actio, does not, as it appears to ns, apply to the case. 
 The court is not here lending its aid to enforce the perform- 
 ance of a contract which is illegal, or which is opposed to 
 public policy, or founded upon an immoral consideration. No 
 such objection to the validity of the contract sued on can 
 justly be taken. The fraud which the court below seemed to 
 think vitiated this contract, related to another matter and to a 
 different transaction. The maxim above referred to is un^ 
 doubtedlyVell established in the law, and it is not intended 
 to violate it in this decision. That a court of justice, as a 
 rule, "will not interfere between partiefe equally guilty, to ad- 
 just their controversies and apportion the shares to which they 
 are respectively entitled accruing from a fraudulent, illegal 
 and immoral enterprise," is a doctrine too well settled to ad- 
 mit of controversy. But the applicability of that rule to the 
 actual case before us is not apparent. The question presented 
 upon the record is quite kindred in principle to the questions 
 involved in the cases of Dyer v. Homer, 22 Pick. 253 
 Harvey v. Varney, 98 Mass. 118, Brooks v. Martin, 2 Wal- 
 lace (U. S.), 70, Phalen v. Clarh, 19 Conn. 421, Lemon v. 
 Grosslcopf, 22 Wis. 447, and Olemetis v. Clemens,'28 Id. 637 
 and is well illustrated by the discussions there found. 
 
 We have confined ourselves to a consideration of the ap- 
 plicability and soundness of the above charge, and reallv those 
 
Williams v. Spuek. 17 
 
 are the only material questions raised by the exceptions. We 
 tiiink the charge was not strictly applicable to the facts, and it 
 was certainly calculated to prejudice the case of the plaintiff. 
 
 For these reasons the judgment of the circuit court must be 
 reversed, and a new trial awarded. 
 
 By the Court. — So ordered. 
 
 Williams v. Spurb, et al. 
 
 (24 Michigan, 335. Supreme Court, 1872.) 
 
 ' No rescission between vendor and vendee, both concealing their opin- 
 ions of the real value. 'The vendor, a dealer and speculator in iron 
 mines, had discovered iron ore upon certain lands and had procured 
 title to them on this account. The vendees, scientific men, had been 
 upon the lands and discovered that this same ore was of peculiar quality 
 and was of great value. Negotiations were opened for purchase. 
 Vendees pretended that they wished the lands on account of the timber 
 on them. Vendor represented that it was also valuable for iron, and 
 sold it at a price much moi-e than it was worth for timber — much less 
 than it was worth for iron. Held, that vendor had no case to. set aside 
 the sale. 
 
 Appeal in Chancery from Houghton Circuit 
 
 This bill was filed by "William W. Williams against John 
 L*. Spurr, Thomas B. Brooks, Raphael Pumpelly, William H. 
 Stevens and Charles II. Palmer. The defendants answered 
 and proofs were taken. On the hearing the bill was dismissed 
 and the complainant brings the case up by appeal. 
 
 HUBBELL & CriADBODKNE, DoUGLASS & MiLLEE, SoUTHEE- 
 
 LAND & Wi-iEELEE, S. F. Seaoee and Ashley Pond, for com- 
 plainant. 
 
 Wilkinson & Smith, Ball & Chandlee, Mooee & Geif- 
 FiN, and Geoege V. IT. Lotheop, for defendants. 
 
 Cheistianct, Ch. J. 
 
 The bill was filed to set aside a sale made by complainant 
 to Spurr, Brooks and Pumpelly, of certain lands in Hough- 
 
 ^ Lynch' s App., 97 Pa. St. 349. 
 
 VOL. VII,— 2 
 
18 Feaud. 
 
 ton county, in the Upper Peninsula, described as the north 
 half of the southwest qnartei-, and the south half of the north- 
 west quarter of section 24, in township 48, north, of range 31 
 west, on the ground of fraudulent concealment or misrepre- 
 sentation as to their character and value; complainant claim- 
 ing by his bill that he was himself ignorant that tliey had 
 any value as iron lands, or for mines of iron upon tlieni, and 
 that he believed them to have no value except for the wood 
 and timber, and that he was confirmed in this belief by the 
 false representations of the defendants.. The negotiations 
 were by letter set forth in tlie bill, and will be noticed when 
 we consider the evidence. The false representation upon 
 wliich complainant alleges he was induced to sell the lands 
 for eight thousand dollars, consisted in the i:epresentation 
 made by Spurr, acting in concert with Brooks and Pumf)elly, 
 that the lands were valuable for timber alone, and were 
 wanted by the purchasers for that purpose. The fraudulent 
 concealment alleged is that the purchasers, knowing from 
 previous exploration of a rich deposit of iron ore making the 
 lands worth $200,000 or thereabouts, fraudulently concealed 
 the facts from the complainant; and he alleges the truth to 
 be that defendants purchased the lands because of the exist- 
 ence thereon of said rich deposits of iron and not because of 
 their wood and timber, while they lead him to believe directlv 
 the contrary. / 
 
 "We liave carefully considered the testimony, and shall give 
 nearly in full the correspondence leading to the sale. The 
 balance of the testimony is in the main harmonious, but in 
 some particulars somewhat conflicting, and instead of enter- 
 ing into a full analysis of it in this opinion, we shall content 
 ourselves with stating the conclusions at which we have ar- 
 rived as we have been able to deduce them from the whole evi- 
 dence. 
 
 The complainant, who resided at Manlins, in the State of 
 New York, but who had for some years been engaged in con- 
 structing the Sault canal, and other public works in that region, 
 wishing to invest some money in mining lands or such as would 
 be likely to prove valuable for iron mines, in the fall of 
 1860, went up to Houghton county for that purpose, and be- 
 ing previously informed that these lands, then belonwino- to 
 
Williams v. Spuer. 19 
 
 the United States, had iron upon them, and being situated 
 on what was then and is still known as tlie"Iron E,;inge," 
 went out with one Holliday, who Iiad previously been upon 
 the lands, and found iron there, and in company with Holli- 
 day examined the lands, found the lines, and not only found 
 iron ore in loose boulders, or what is called "float ore," but 
 was sliown by Holliday the bed or deposit of ore in the ledge 
 or "in place" at several points on the land, and though not 
 himself an expert in such matters, complainant was satisfied 
 it was iron, and that the lands would prove a valuable invest- 
 ment as iron lands, and with this view he purchased thelands 
 of the government in October, 1860. 
 
 Tliongh the purchase was in his own name, and the legal 
 title to the whole remained so up to the time of sale to defend- 
 ants, yet at or about the time of the purchase he sold Charles H. 
 Palmer a one third interest, and gave him a written agreement 
 acknowledging that the latter had paid for the third interest, 
 and agreeing to hold the same as trustee for him, " subject to 
 such decision as the parties might direct from time to time." 
 
 About the same date, or shortly after, complainant bought 
 a much larger quantity of lands near L'Anse on the same 
 " Iron Range " as, and for, iron lands, in part of which Palm- 
 er also was interested. 
 
 It does not appear that any offer, had been made for the 
 purchase of the lands in controversy until late in tlie year 
 1867, when Mr. C. 0. Douglass (who it seems from the testi- 
 mony, also owned and was pealing in iron lauds in that 
 neighborhood) applied to complainant to know what he would 
 take for the lands here in question. And on the sixth of 
 December, 186T, complainant writes to Palmer: " I have 
 just seen Mr. C. C. Douglass, and he wanted to know what we 
 would take for our iron property over near LakeMichigammi. 
 I told him if you were willing, we would sell for six thousand 
 dollars cash; and he wanted I should write you and get an 
 answer from you as soon as I could." It is admitted that this 
 letter refers to the land now in dispute. On the 31st of, 
 December, Palmer answers him, saying: " The land * * 
 * consists of one hundred and sixty acres. At six 
 thousand dollars it would be about forty dollars per acre. I 
 would sell at $6,000. What does Douglass want of it? Does 
 
20 Fkaud. 
 
 he want it to go with some of his own lands? My opinion 
 now is to sell most decidedly." He also says in a postscript: 
 " I wish you would write at once about the sale of iron land. 
 Knowing what Douglass wants of it you can tell well enough 
 what is the most he will give for it; and that price I would 
 take. It is generally better to do well than to wait upon the 
 uncertainties of doing better." 
 
 For some reason not explained, no sale was made to Doug- 
 lass; and it does not appear that any other offer was made to 
 purchase until that which resulted in the sale now in contro- 
 versy. 
 
 The evidence shows that these lands, without reference to 
 the iron supposed to be upon them, were of no great or pecul- 
 iar value for their timber; that lands equally valuable for 
 their timber could have been purchased in large amounts in 
 that neighborhood, at the time of this contemplated sale to 
 Douglass, at from $2.50 up to $5 per acre; and that the price 
 for such timbered lands was but little higher when these lands 
 were sold to defendants; that complainant never would have 
 purchased them on account of any value they might be sup- 
 posed to have as timbered lands, and that if he had considered 
 them valuable only for their timber he would not, at the time 
 Douglass proposed to purchase, have placed upon them a 
 higher value than $5 per acre or $800 for the one hundred and 
 sixty acres, and would have considered it an advantageous 
 sale at that price. But he bought them as iron lands and 
 spoke of them as such in his correspondence with Palmer, and 
 treated them as such in fixing the price. 
 
 In fact we are satisfied from the .evidence that the lands 
 were then quite generally known as iron lands among intelli- 
 gent men in that region, and that to several explorers and 
 dealers in iron lands they were at this time, or at least prior 
 to the negotiation with defendants, known to contain the de- 
 posit of magnetic iron ore, which is now supposed to give 
 them their peculiar value, though the parties cognizant of this 
 were reticent about it, in hopes perhaps of some day purchas- 
 ing to advantage. 
 
 "We now come to the transaction which resulted in the sale 
 in controversy. 
 
 Some time about the 1st of October, 1868, defendants Spurr 
 
Williams v. Spuee. 21 
 
 and Brooks were on this land and found iron there, which 
 thej' were satisfied rendered it valuable, though their explora- 
 tion was a very slight one, of but two to four hours, a con- 
 siderable portion of which was spent in the attempt to find 
 the section line, to determine whether it was on section 23 or 
 82ction 24, where the iron was found, in which, however, at 
 this time thej failed; but they became satisfied it was near the 
 line, and if on 23, that it extended also onto section 24, the 
 lands of complainant. 
 
 On the 3d of October, 1868, defendant Spurr wrote to com- 
 plainant, saying: " I have some hard wood timber lands at 
 the west end of Lake Michigammi, and having an ofi^er to 
 close a large wood contract with the railroad company for a 
 term of years, I am a little doubtful whether I have secured 
 timber enough to fill the contract; and having seen, from 
 Banfield's map, that you are owner of some timber land on 
 section 24, town 48, north, range 31, west, and having busi- 
 ness at the Sault Ste. Marie, where 1 met your brother a short 
 time since, I mentioned the matter to him, that I would like 
 to purchase these timber lands, provided yon wished to sell, 
 and we could agree on price and terms of payment." 
 
 On the 10th of the same month the complainant, from his 
 residence at Manlius, replies to this letter, that he is the own- 
 er of these lands (describing them), and then proceeds to say: 
 " I do not know as you are aware that there is a very good 
 show of iron on this land, but still I will sell it very reason- 
 able, if you wish." He then tells him he will sell it for 
 $10,000, and that he don't wish to sell any of it unless he 
 sells the whole; and that he may pay one quarter down, and 
 secure the other by mortgage, and pay within one year. 
 
 Now we are entirely satisfied, that this letter of Spurr, so 
 far as it indicates a wish to purchase the land for the sake of 
 the timber and to fill a contract proposed by the railroad com- 
 pany for wood, was a bald pretense without any foundation in 
 fact, and devised for the purpose of concealing his real object 
 in making the purchase, and his real opinion of tlie value of 
 the land. But this pretense is no more bald and destitute of 
 foundation in truth than that of complainant in his bill — fee- 
 bly sustained by his testimony — that he at this time, or sub- 
 sequently, believed the land had no value except for the wood 
 
22 Fraud. 
 
 and timber thereon. This is shown, not only by the fact, 
 known to the complainant, of iron upon the land, and the 
 other considerations already mentioned, but by the price of 
 $10,000 which he puts upon it, when, as we are satisfied, com- 
 plainant would himself liave thought $1,000 a high price 
 for it as mere timber land, witliout reference to the show of 
 iron. 
 
 It is quite true he may have supposed, when he received 
 Spurr's first letter, that he really wanted the lands for the 
 timber, as Spurr had offered no parlicnlar price, but he was 
 led into no belief that this was the only purpose for which 
 the lands were valuable, as is shown by the price he fixes, 
 which is $4,000 more than he had been disposed to sell them 
 to Douglass for, and by his declaration that there is a good 
 show of iron upon the lands; and the subsequent correspond- 
 ence shows plainly enough that the timber had ceased to cast 
 its shadows over the minds' or motives of the parties; and 
 that the prospect that they would prove valuable for iron was 
 the controlling idea with all the parties, notwithstanding the 
 ludicrous attempt of Spurr, in his letter next to be noticed, to 
 preserve his consistency, by pretending to cling to his first 
 love for the timber, which he declares his associates have 
 kindly consented he may enjoy. But complainant was not 
 by this ludicrous pretense deceived into the belief that the 
 lands were only valuable for timber, or that the defendants 
 were purchasing on that account. 
 
 After the receipt of complainant's letter of October 10th, the 
 defendant, Spnrr, who was near the land, seems to have gone 
 upon it again previous to the 22d of October, and ascertained 
 that the ore he and Brooks had previously discovered was on 
 this land. The snow at this time was some four or five inches 
 deep, wiiich rendered the examination more difficult. He 
 and his assistant, however, succeeded in finding the iron ore 
 as before, and took specimens of the same with him, which 
 we are satisfied were shown to defendants Brooks and Pum- 
 pelly, who were better qualified than complainant to judge of 
 its value from its appearance — Pumpelly being professor of 
 mining in Harvard University, and Brooks being connected 
 with the State geological survey. We are also satisfied that 
 these defendants concealed their opinions of the value of the 
 
Williams v. Spurk. 23 
 
 ores, as any man in their situation, speculating in iron lands 
 and contemplating a purcliase from another speculator, would 
 be likely to do; and we think it probable that the man who 
 went with Spurr on the second exploration, and wlio donbr. 
 less heard him express his opinion of the value of the ores; 
 was cautioned, and perhaps paid for keeping still about it. 
 An assay was subsequently made of the specimens obtained, 
 but it- does not appear that any assays were made prior to the 
 consummation of the purchase. 
 
 After this second exploration by Spurr, he, on the 22d of 
 October, writes to complainant acknowledging receipt of his 
 letterof the 10th of October, and saying: "As you spoke of 
 there being a very good show of iron on it, I thought I would 
 go and look it over; as I showed your letter to a party here 
 that have been dealing some in iron lands, and they sent a 
 man out with rae, agreeing that if the show of iron was good 
 they would take an interest and help me pay for it and let 
 me have the timber. They sent a man out with me to make 
 an exploration; but the weather ^was unfavorable, as the snow 
 fell five inches night before last, and we could not make a 
 thorough exploration; but we found some iron; but, in re- 
 gard to quantity and quality, could not decide, as we were not 
 prepared to do any digging, and there is so much lean ore in 
 this country that will not pay for shipping, and as the speci- 
 mens we brought in were not very satisfactory, the party 
 think they would not want to invest at yonr price without 
 knowing something more about the location ; and as the snow 
 is on, and probably will remain till spring, there will be no 
 clianee to make any further exploration before that time, but 
 we have concluded to make you a liberal offer of $6,000, to 
 pay one third down, balance in two equal payments of $2,000 
 each, at one and two years, secured by mortgage. As there 
 have been so many iron shows we considered good, such as the 
 Tilden Mine, Oyster Mine, Iron Cascade Mine, Seal Lake 
 Mine, and many others, where they have spent hundreds of 
 thousands of dollars in opening them, and they have all proved 
 worthless, or did not produce a shipping ore, and are all aban- 
 doned on that account, I think we are taking all the chances 
 and offering you a big price. On receipt of this please let me 
 hear from you." 
 
24 Fkaud. 
 
 To this letter complainant replies on the 29th of October as 
 follows: "Yonrs of the 23d instant is received; your offer I 
 can not accept, but will split the difference with you if you 
 wish. I will take $8,000, and you can make the payments as 
 follows: $4,000 down and the balance secured by mortgage 
 on the property, $2,000 in one year and $2,000 in two years. 
 I consider this a low figure for the property, as I could have 
 taken $6,000 for it last winter; but I will sell it now, and as 
 I said before, I consider it quite cheap; as I have been on the 
 property, and am satisfied there is very good iron on the lo- 
 cation. If you wish to close the bargain at this price, I will 
 sell, bat will not consider my offer binding unless taken 
 soon." 
 
 Spurr being absent on the 4th of JSTovember, when this let- 
 ter was received, defendants Pumpelly and Brooks opened it, 
 and immediately telegraphed complainant in Spnrr's name 
 accepting the offer, and also wrote him explaining that they 
 were the "party," to whom Spurr had referred in his letter as 
 having agreed to take an interest with him, and say: "We 
 therefore agree to, and formally accept, for John L. Spurr, as 
 his agents and for ourselves, your proposition to sell lands and 
 pay for them $8,000 — one half down, one fourth in one year 
 and one fourth in two years; you giving us a good and suffi- 
 cient warranty deed for the land when first payment is made, 
 and we secure the balance of $4,000 by mortgage. Mr. E. 
 Pumpelly is going east in a few days, when he will complete 
 the transaction, having full power from Spurr and Brooks to 
 act in the matter. Mr. Pumpelly will write you in a few davs 
 when he will state definitely about the time." (Signed) "T. 
 B. Brooks, Raphael Pumpelly." 
 
 This ended the correspondence in reference to the terms of 
 sale; and about the 9th or 10th of December defendant Pum- 
 pelly called upon complainant at his residence in Manlius, 
 New York, and a preliminary written contract of sale was 
 drawn up, and signed by him and complainant, in accordance 
 with the terms agreed upon by the correspondence, providing 
 for the payment, within sixty days from that date, of the 
 $4,000 ($500 of which was paid down), and for the execution 
 of the deed by complainant, and a mortgage and notes by 
 Pumpelly, stating that there was supposed to be certain in- 
 
Williams v. Spukk. 25 
 
 cniiibrances by way of tax titles, and that if complainant did 
 not extinguish them in sixty days, then he was not to convey 
 except at the option of Ihe purchaser, to take a deed subject 
 thereto without warranty, in which case the price was to be 
 $7,000 instead of $8,000. 
 
 During the interview on this occasion the complainant 
 spoke of the lands as iron lands, and both parties in their 
 conversation treated them as such, and the complainant gave 
 Pumpelly to understand that he had seen the exposure of the 
 iron ledges on the land, but said he was willing to sell this 
 land because he was interested in a much larger tract of iron 
 land near L'Anse, which promised much more speedy devel- 
 opment. The subject of timber or timbered lands was not 
 spoken of in these conversations. 
 
 Complainant, after this preliminary contract and prior to 
 the 8th of February, 1869, seems to have gone himself or sent 
 some one (from the bill of expenses rendered to Palmer it 
 is rather to be inferred he went himself) to Houghton coun- 
 ty, where the lands are situated, and got up the tax titles, and 
 on the 8th of February, 1869, complainant met defendants 
 Pumpelly and Brooks in the city of New York. The $4,000 
 (including the $500 previously paid down) were paid, the 
 warranty deed given, and complainant received the mortgage 
 and notes of defendants Pumpelly, Brooks and Spurr, for 
 $i,000, payable in one and two years. JJuring this interview, 
 also, complainant and all parties spoke of the lands as iron 
 lands, and complainant expressed great confidence in their 
 value for iron ore, and nothing was said of them as timbered 
 lands. 
 
 The purchase was thus closed, apparently to the, entire sat- 
 isfaction of complainant, and it may not be amiss to inquire 
 when and under what circumstances complainant became dis- 
 satisfied and first complained of fraud on the part of the de- 
 fendants. 
 
 Complainant having reported this sale to Palmer about the 
 middle of April, 1869, and sent him the note of $2,000, due in 
 one year, and less than his one third of the money, Palmer, who 
 believed the land was worth more than it had been sold for, and 
 not having been consulted, as soon as he learned the facts con- 
 nected with the sale repudiated it. See Palmer v. Williams 
 24 Mich. 328. 
 
26 Fkatjd. 
 
 But in June, 1869, before Palmer had learned the facts or 
 bronght his bill to set aside the sale as to his one third, com- 
 plainant was up in Houghton county (where the lands are) 
 and met .Palmer there, and they had several conversations 
 there about the sale, Palmer insisting that complainant had 
 sold his (Palmer's) interest without authority. Complainant 
 still had large interests in iron lauds in that region, in part of 
 which Palmer was also interested. During this period, while 
 Williams was up there, it was the common talk and belief 
 among the people there, that the lands in question had been 
 found, or were believed to be of very great value for iron, 
 though it had not been opened or worked, and was not, even 
 up to the time the evidence in this case was taken, and the 
 evidence shows that until thus opened and worked it can not be 
 known whether it will prove of much value or not. Complain- 
 ant seems to have made no complaint of being defrauded until 
 long after Palmer had filed his bill against him and Pumpelly, 
 Brooks and Spiirr, to set aside the sale as to the one third, 
 when, as he had given a warranty deed, it began to be appar- 
 ent he might be held responsible on his covenant, and when, 
 as he says. Palmer rather advised him to bring a bill to set 
 aside the whole sale. But he says it was not till February or 
 March, 1870, that he first became aware that Spurr, Brooks 
 and Pumpelly knew of tiie existence of valuable iron ore on 
 the land before they purchased, and intimates that if he had 
 known it he would not have sold it as he did. This was some 
 six months at least, after it had become notorious in all the 
 mining country that this was believed to be one of the most 
 valuable iron tracts in the wiiole iron region, and when it 
 was estimated anywhere from $60,000 to $120,000. And it 
 was not till the 15th of May, 1870, that complainant applied 
 to defendants to rescind the sale, or notified them that he 
 claimed it to have been fraudulent, and offered to pay back 
 the money he had received and to return the notes and mort- 
 
 Snch are all the material facts in the ease, and, so far from 
 sustaining the main ground upon which complainant rests his 
 claim to relief, that up to the time of the sale he supposed 
 and believed the lands had no value except for the wood and 
 timber, and was ignorant that they had any value as iron land. > 
 
Williams v. Spukk. 27 
 
 and that he was misled into, or confirmed in this belief by the 
 acts, representations, or concealment of the defendants, the ev- 
 idence clearly and affirmatively shows that such ignorance and 
 snch belief on his part is a sheer pretense, not only unsup- 
 ported, but clearly disproved by the evidence. It shows that 
 he was, and for some time had been, dealing in iron lands in 
 that region as a speculator; that these lands were entered by 
 him as snch, after he had discovered the iron upon them, and 
 with a view to their sale as iron lands, spoken of, offered and 
 treated as such on all occasions, and the price previously, and 
 upon this sale, fixed upon this basis, and not at all with refer- 
 ence to their value as timbered lands; that the value of the 
 mines upon these lands, like that of all others which had not 
 been opened or worked, was in a great measure speculative, 
 in wliich hope, anticipation, and visions of fnture possibilities, 
 rather than actual knowledge or present realities, constituted 
 the controlling elements; that though some opinion of the 
 chances might be formed from the surface show, yet, however 
 favorable this might be, until opened and worked, the real value 
 could not be known, and the purchase must be made in the 
 nature of a lottery. 
 
 Complainant had himself been on the lands and seen the 
 exposure of the iron ore in place, or iu the ledge, at several 
 places, as well as the boulders, or float ore. And though the 
 defendants, previous to his letter of October 10th, had not in- 
 formed him that they had examined the lands, yet when he 
 informed them that there was a good show of iron upon them, 
 and proposed to sell them for $10,000, this was equivalent to 
 an invitation to them to examine the lands for themselves, 
 and to form their own opinion of its value, for he certainly 
 could not have expected they would purchase at anything near 
 the price he had fixed without first making an examination, 
 nor unless they should find what, in their opinion, would 
 render them profitable at that price as iron lands. If or had 
 he any reason to expect they would report to him their dis- 
 coveries, or their real opinion of the character and value of the 
 ores they might find. On both sides they were dealers and 
 speculators in iron lands; there was no relation of confidence 
 between him and them; they were dealing with each other at 
 arm's length; and the whole course of the correspondence 
 
28 Fbaud. 
 
 shows that each party expected the other to obtain hia own 
 information in his own way, and to decide as to the value at his 
 own risk, and that neither was acting in reliance upon the 
 statements of the other as to the value of the lands. 
 
 From the evidence it does not appear that the exploration 
 made by the defendants was really any more thorough tlian 
 that made by complainant, nor does it appear that they had 
 discovered any deposit or exposure of ore which he had not 
 seen. The fair inference from the evidence is that their dis- 
 coveries upon the ground were substantially the same; both 
 having discovered the same thing, the iron ore in place. It 
 does not appear that complainant took specimens, though he 
 had the same opportunity to do so as the defendants. But 
 the defendants, or some of them, being more scientiiic, were 
 better qualified to judge of the value of the ore from its appear- 
 ance, or such other properties or manifestations as might appear 
 without an actual assay; and they had a perfect right, under 
 the circumstances, to make use of their superior and scientific 
 acquirements, which were their own property and not that 
 of complainant, and the latter had no right or claim to profit 
 by the better opinion they might thereby have been enabled 
 to form. Had they been employed by him to make an exam- 
 ination for his benefit, or had they stood in any fiduciary re- 
 lation to him, or had he been ignorant of any show of iron 
 upon the lands, the case might have been different. But un- 
 der the circumstances, and the relations in which the parties 
 stood to each other in the course of this negotiation, they 
 were not only at liberty to conceal from complainant any 
 opinion they might have formed of the value of the ores, but 
 any discoveries they might have made, so long as they did 
 nothing to prevent him from making any examination he 
 should choose to make, or from adopting his own course to 
 obtain such information as he might choose to obtain at his 
 own expense and in his own way; and the evidence does not 
 show that they did anything of this kind, nor that he relied 
 or, expected or intended to rely, for his own opinion of tlie 
 value upon any information from them. He clearly relied 
 upon the examination he had himself made, and they relied 
 upon such as they chose to make, and each must abide the 
 result. 
 
Getty v. Devlin. 29 
 
 The decree of the court below must be affirmed, with costs 
 to the defendants, of both courts. 
 The other justices concurred. 
 
 ' Getty et xl. v. Devlin et al. 
 
 (54 New York, 403. Commission of Appeals, 1873.) 
 
 Sale by subscription headed by decoy subscribers. Certain ownei-s of 
 oil interests prepared a subscription agreement, by which each subscriber 
 was to pay the amount set opposite his name, toward the purchase of 
 the property, which was to go to a corporation to be organized. Each 
 owner subscribed $5,000, and caused others to sign these subscriptions, 
 which were marked paid, but were not in fact intended to be and never 
 were paid. Plaintiffs, with others, believing these subscriptions tona 
 fide, subscribed and paid their moneyjto one of the owners, who divided it 
 with his co-owners. The corporation was organized and stock issued. 
 Held, that the subscription paper was a fraud upon all the signers who 
 had paid upon it, and that the , associates in the scheme (the original 
 owners) were at least liable to account to the bona fide subscribers for 
 their profits on the sale to the corporation. 
 
 ^ Good faith required between associates. Each person engaged in a 
 common enterprise has a right to expect from his associates good faith 
 in all that relates to the common interest, and if a party pretending to 
 be a purchaser in common with others, be in reality the seller, he must 
 account for the difference between what the property cost him and the 
 price he received for it. 
 
 'No recovery of purchase price with rescission. There can be no action 
 by the defrauded against the guilty party for the direct recovery of the 
 entire consideration paid, until after complete and prompt rescission ; 
 and though rescission be impossible (unless prevented by the guilty 
 party) the rule remains the same. 
 
 Appeal from judgment of tlie General Term of the Su- 
 preme Court in the First Judicial District, affirming a judg- 
 ment in favor of the defendants, entered upon the decis'ion of 
 the court at Special Term. 
 
 This action was brought to obtain relief on account of a 
 fraud alleged to liave been committed upon the plaintiffij in 
 the purchase and sale of oil lands, and the formation of the 
 
 ' Same case on second appeal, 7 M. B 119. 
 
 'Short V. Stevenson, 6 M. R. 629. 
 
 ^Byard v. Holmes, 6 M. R. 598; Scott v. KHianmng Co., 3 M. R. 159. 
 
30 Feaud. 
 
 Federal Oil and Coal Company. The alleged perpetrators of 
 the fraud and the executors of a deceased one, and all the 
 stockholders of the company and the company itself, were 
 made parlies. The facts appear sufficiently in the opinion. 
 
 Upon those facts the court found, " that neither the defend- 
 ant, John Bryan, nor Daniel Devlin, deceased, made, or au- 
 thorized to be made, any representation that they, or either of 
 them, were or was not an owner of the lands and leasehold 
 interest in question, nor did they or either of them say or do 
 anything, or authorize any one to say or do anything, to in- 
 duce the plaintiffs to believe that they, or either of them, had 
 no interest as owner therein, nor'did they, or either of tliemj 
 fraudulently or otherwise, conceal or take any measures to con- 
 ceal the knowledge of their or either of their ownership or 
 interest therein. ITor did they or either of them make any 
 false representation to the plaintiffs or any other subscriber 
 on the subject of said land, or their or either of their interests 
 therein." 
 
 And as conclusions of law, " that the complaint in this ac- 
 tion as to the defendants, John Bryan and Jeremiah Devlin 
 and Henry F. Spaulding, as executors of the last will and 
 testament of Daniel Devlin, deceased, should be dismissed 
 with costs." 
 
 Judginent was entered accordingly. 
 
 Samfel Hand, for the appellants. 
 
 It was error in law for the court to find a fact unsupported 
 by evidence, or to refuse to find a fact proved by uncontra- 
 dicted evidence: Mason v. Lord., 40 IS.. Y. 476; Putnam v. 
 Huhiell., 42 Id. 106. It is not necessary, in order to main- 
 tain this action, to show actual fraudulent representations hy 
 Bryan or Devlin personally: Leslie v. Wiley, 47 N. Y. 650; 
 Bennett v.Judson,'2\ Id. 238; Elwell v. Chamberlain, 2 
 Bosw. 230; Hunter v. H. R. Lmn Mach. Co., 20 Barb. 493. 
 It was a fraud ^er sefor the four defendants to sign the agree- 
 ment in the pretended character of co-purchasers, and to con- 
 ceal the fact that they were the real sellers : Conhey v. Bond, 
 36 N. Y. 427. The concealment from plaintiffs of the cost 
 of the property was a fraud : Ritchens v. Congreve, 4 Kuss. 562 ; 
 
Getty v. Devlin. 31 
 
 Conyleare v. N. B. R. Co., 1 De Gex., F. & J. 578; Carpen- 
 ter V. Danforth, 19 Abb. Pr. 225; Bliss v. Matteson, 45 N. Y. 
 22; Overend Ourney c& Co. in re, 3 E. E., April, 1867, Eq. 
 Series, 619-624. The use of decoy subscribers was a fraud; 
 Blake^s Case, 34 Beav. 639; Ross v. Estates Invest. Co., L. K. 
 February, 1867; 3 Eq. S. 134-137. The contract was vitiated 
 on account of fraud in its formation: 2 li. S. 677, § 53; Rex v. 
 Jiarnard, 7 Car. & F. 784; Foss v. Harhottle, 2 Hare, 461; 
 Conhey v. Bond, 36 N. Y. 429; liavdins v. WicMam, 3 De G. 
 & J. 304. Devlin was trustee of the trust created by the orig- 
 inal agreement, and is accountable to plaintiffs for a breach 
 thereof: Robinson v. Smith, 3 Paige, 223. Devlin's execu- 
 tors are proper parties to an action to redress a breach of the 
 trust: Cunningham v. Pell, 5 Paige, 607; Knatchhull v. 
 Fearnhead, 3 M. & 0. 122; Munch v. CooJcrell, 8 Sim. 219; 
 Perry v. Knott, 4 Beav. 179. Plaintiffs, in order to rescind 
 the contract, were not obliged to reinstate the perpetrators 
 of the fraud in the condition they were in at first: Masson v. 
 Bovet, 1 Den. 69. 
 
 John E. Devlin, for the executors of Daniel Devlin, de- 
 ceased, and Henry F. Spaulding, respondents. The decision 
 of the General Term, affirming a judgment of Special Term 
 on exceptions to the findings of fact by a judge trying a cause 
 without a jury, unless such findings are clearly against evi- 
 dence, is final: Browner. Vredenburgh, 43 N". Y. 195, 199; 
 Mason v. Lord, 40 Id. 476; Burgess ■v. Simonson,^b Id. 225; 
 Field V. Mun^on, 47 Id. 221. Unless plaintiffs restored or 
 offered to restore defeudants' testator to his original condition 
 they could not recover: Voorhees v. Earl, 2 Hill, 288; Mas- 
 son V. Bovet, 1 Den. 69; Wheaton v. Baker, 14 Barb. 594; 
 Minturn v. Main, 7 IS". Y. 220, and cases cited ; Matteawan Co. 
 V. Bentley, etc., 13 Barb. 641; Nichols v. Michael, 23 N. Y. 
 264, (272). 
 
 Feancis Keknan, for John Bryan, respondent. 
 
 The conclusions of tile court below as to matter of fact are 
 conclusive in this court, when there is any testimony to sus- 
 tain them or a conflict as to tliera: Fellows v. Northrup, 39 
 
32 Feaud. 
 
 N". Y. 117; Putnam v. E'uUell, 42 Id. 106, 113. Clear and 
 satisfactorv evidence is required to prove fraud: 1 C. & H. 
 Notes to Phil. Ev., 297, 298, and cases cited. There is noth- 
 ing from which constructive fraud can be made out to render 
 tlie agreement voidable and authorize the court to rescind it: 
 Story's Eq. Jur. §§315, 316; Davoue v. Fanning, 2 J. Ch. 
 252, and cases cited; N. T. Ins. Co. v. Nat. Pro. Ins. Co., 
 14 K Y. 85, 91; Conhey v. Bond, 36 Id. 427; S. C. 34 Barb. 
 276. Even if there had been fraud, actual or constructive, 
 plaintiffs are riot entitled, upon the case made, to have the 
 agreement rescinded, and the money paid for the land and 
 leases refunded: Cobb v. Hatfield, 46 K Y. 533; Masson v. 
 Bovet, 1 Den. 69,73, 74; Baker v. Rohins, 2 Id. 136; Matjer. 
 V. Shoemaher, 5 Barb. 319; Wheaton v. Baker, 14 Id. 594; 
 Fisher v. Fredenhall, 21 Id. 82; Willard's Eq. Jur. 302, 303; 
 Sar., etc., B. B. Go. v. Bow, 24 Wend. 74. Bryan's intent 
 was an issue in the case, and evidence thereon was competent: 
 Seymour v. Wilson, 14 N. Y. 567. 
 
 Eael, 0. 
 
 The following 'are the facts established on the trial of this 
 action by un controverted and undisputed evidence. Prior to 
 February 22, 1865, the defendant, John Bryan, purchased 
 leasehold interests in certain lands situated in the State of 
 Ohio, and obtained in his own name leases or assignments of 
 leases of sucli lands. The actual cost to him of such lease- 
 hold interest did not exceed the sum of $15,300. Prior to the 
 same date the defendant, Robert H. Arkenburgh, or Bryan in 
 his name, had obtained contracts for the purchase of lands in 
 Ohio in fee, at a cost of not exceeding $15,000. These pur- 
 chases and contracts were made through the agency of the 
 defendant, Jacob S. Atwood, who knew the actual cost of tlie 
 leasehold interests and lands. Prior to the same date, defend- 
 ants Arkenburgh, Bryan and Atwood came to an underst.and- 
 ing with Daniel Devlin, since deceased (whose executors 
 were made defendants), that he, Devlin, should pay Bryan 
 $7,650, and should be entitled to one half the interest Bryan 
 then had in the property, and that all the property should be 
 sold and disposed of for their joint benefit, and that Atwood 
 
Getty v. Devlin. 33 
 
 should be entitled to one third of the profits arising from the 
 sale, and that out of the residue of the proceeds the original 
 cost of the property should be paid to Devlin, Arkenbnrgh 
 and Bryan, and the remainder divided equally between tlie 
 three last named. In pursuance to this understanding, and 
 to carry into eifect the scheme of disposing of such lands, 
 they procured the following paper to be drawn, to. wit: 
 
 "We, the undersigned, do hereby subscribe and agree to 
 pay forthwith tlie amount set opposite our names for the pur-^ 
 chase of property in Washington, Monroe and Athens coun- 
 ties, Ohio, as per memorandum annexed, being leasehold in- 
 terest in 745 acres, and 207 acres in fee, at the sum of 
 $125,000 (one hundred and twenty-five thousand dollars), 
 payments to be made to Daniel Devlin, Esq., at Broadway 
 Bank, trustee for the purcliascrs, in whose name the title to 
 the property shall be taken, said property to be put into an 
 association for development upon sncli terms as these sub- 
 scribers may elect after this subscription is complete." 
 
 "New York, 22d February, 1865." 
 
 To this paper was attached a description of the real estate 
 therein referred to, being nearly all the real estate purchased 
 and taken by Bryan and Arkenburgh as above stated. The 
 said paper was subscpibed first by said Devlin and then by 
 defendants, K, H. Arkenburgh and Bryan, each for $5,000, 
 before either of the plaintiffs saw the same, and was left in 
 the hands of Atwood with the understanding that he should 
 procure other subscribers thereto. Atwood subsequently 
 subscribed the paper for $5,000. At the time of subscribing 
 neither Devlin, Arkenburgh, Bryan nor Atwood intended to 
 pay any money upon their subscriptions, and did not, in fact, 
 pay anytliing. After the paper had been signed by Devlin, 
 Arkenbnrgh and Bryan, it was signed by the plaintiff, Hol- 
 comb, for $5,000, J. A. Amelung & Son, as a firm, for $5,000, 
 and R. P. Getty & Son, as a firm, for $5,000, and by the. other 
 defendants, the entire subscriptions amounting to $125,000. 
 The plaintiffs paid their subscription to Devlin, and of the 
 other subscriptions nearly $50,000 in amount was. also paid to 
 him. The balance of the subscriptions was not paid, and 
 such subscriptions were not made in good faith, were not in- 
 tended to be paid when made, and were procured wholly oi- in 
 VOL. VII. — 3 
 
34 Fraud. 
 
 part throngli the agency of Devlin, Bryan, Arlcenburgb, and 
 Atwood or some one of them, with the understanding that they 
 were not to be paid. It was proven that some of snch sub- 
 scriptions were made in the name of tlie friends and relatives 
 of the persons last named, and marked paid, with the under- 
 standing that they were to hold their interests as presents 
 from them. The $64,500 thus paid to Devlin was subse- 
 quently deposited with or paid to Arkenburgh and Bryan, 
 who were copartners, except that Devlin retained the amount 
 coming to him under the above-mentioned agreement as to 
 the division thereof. 
 
 The plaintiff, Holcomb, was induced to subscribe the agree- 
 ment by the false representations made to him by Atwood 
 that the property cost $125,000. The defendant. A. A. Gif- 
 ford, was the son-in-law of Atwood, and was a subscriber for 
 $5,000, which was marked paid, but which he never paid nor 
 intended to pay, and he took the agreement to procure sub- 
 scribers thereto, and the plaintiffs, Getty and Amelung, sub- 
 scribed the same at his solicitation. He represented to theni) 
 in order to induce them to subscribe, that tlie lands had cost 
 $125,000, and that the subscribers would have the same at 
 their original cost. The plaintiffs believed these represen- 
 tations and supposed that the lands purchased in Ohio cost or 
 were to cost the $125,000. 
 
 After the subscriptions had been made to the extent of 
 $125,000, a meeting of the subscribers was called and steps 
 taken to organize a company to take and develop the land. 
 The Federal Oil and Coal Company was finally organized as 
 a corporation under the laws of this State, with a capital of 
 $1,000,000, divided into 100,000 sliares of $10 each. That 
 the stock might be regarded as paid-up stock, it was arranged 
 that Bryan, who then held all the lands, should convey them 
 to the company for the whole amount of the stock. This was 
 done, and then he transferred the stock to Devlin in trust 
 for all the subscribers for the $125,000. Of the stock, 20,000 
 shares were reserved for working capital, and the balance was 
 distributed to the subscribers, 3,200 shares for each subscrip- 
 tion of $5,000. 
 
 When a committee of the stockholders called upon Bryan 
 to examine the titles of the lands, they did not inquire of iiini 
 
Getty v. Devlin. 35 
 
 what they had cost him, but he exhibited to them the leases 
 which had been assigned to him, in which the true considera- 
 tion paid by him was not stated. He did not inform such 
 committee, nor any of the bona fide subscribers, what the 
 lands had cost, nor how much profits he and his three asso- 
 ciates were to make by a sale of them to the company, but 
 intentionally concealed these facts, well knowing that his 
 scheme would be defeated if he disclosed them. 
 
 After the organization the plaintiffs and other stockholders 
 advanced money to the company to develop the lands and 
 carry forward the operations of the company. For moneys 
 thus advanced, the plaintiffs subsequently proceeded against 
 the companj', and sold lands of the company, and realized a 
 portion of the money thus advanced. The plaintiffs did not 
 discover the fraud which they claimed had been perpetrated 
 upon them until after the death of Mr. Devlin; and before 
 they commenced this action they tendered to his executors a 
 release of their stock in the company, and demanded of them 
 the money which they had paid upon their subscriptions. 
 Devlin, Arkenburgh, Bryan and Atwood divided the $64,500 
 between themselves, according to the agreenient above men- 
 tioned, which they had made for the division thereof! 
 
 These facts stand clearly out in the case undisputed, and 
 the question for us to determine is, whether upon them the 
 plaintiffs are entitled to any relief, and if they are, what re- 
 lief. 
 
 "We have, briefly, this state of things: Devlin, Arkenburgh, 
 Bryan and Atwood, owned certain lands, situate in the State 
 of Ohio, which had cost them, in round numbers, $30,000. 
 They conceived the design of disposing of them to a company 
 at a large advance and dividing the profits between them, and 
 for this purpose took steps to organize a company. They 
 procured the subscription paper to be drawn in which the 
 subscribers agree to pay the sums set opposite their names^ 
 " for the purchase of property " in Ohio, at the sura of $125,- 
 000. 
 
 They subscribed the paper not intending to pay, and know- 
 ing they would not have to pay their subscriptions, and they 
 then caused the paper to be circulated and subscriptions to be 
 procured, and for the purpose of filling- up the subscription 
 
36 Fbatid 
 
 they gave away, in what may propei-Iy be called decoy sub. 
 seriptions, about half of the amount to be subscribed. The 
 plaintiffs subscribed upon the fraudulent assurance that the 
 original cost of the land was $125,000, and upon the belief 
 that they became subscribers on a footing of equality with all 
 the others. The money subscribed was paid to Devlin, who 
 acted as trustee for the subscribers, and also for his three as- 
 sociates. He retained his share and the balance he paid over 
 to Bryan, and by him it was divided among himself and the 
 other two, and the four thus shared profits exceeding $30,000 
 in money, besides having as much stock as those who paid 
 their subscriptions in cash. 
 
 I tliink there are several grounds upon which the plaintiflFs 
 can base a right of recovery in tliis action. The subscription 
 paper itself contains substantially a representation that the sub- 
 scribers were to purcliase the lands in Ohio at a cost of $125,000. 
 It imported a joint adventure for the purchase of the lands from 
 persons, not subscribers, at the price named, in which all the 
 subscribers were to be interested as purchasers upon the same 
 footing, in proportion to their subscriptions. When the four 
 defendants sent forth this paper with their names subscribed 
 to it, they represented that they Would pay the sums by them 
 subscribed for the purchase of the land. No person reading 
 the paper and seeing their names to it as subscribers, would sup- 
 pose that they had already bought the lands, aud that thej' were 
 really the sellers and in no sense purchasers. The fair impli- 
 cation was that the lands were to be bought of the owners, 
 and that such owners -were not any of those who subscribed 
 as purchasers. The natural inference which a party subscrib- 
 ing would draw was, that each was engaging in an enterprise 
 for the mutual and common benefit and ad vantage .of all, and 
 that each had a common interest with the others accordincr 
 to the amount of his subscription. Hence, when the four de- 
 fendants put this paper in circulation, with their names sub- 
 scribed to it for snms which they did not intend to pay, in- 
 tending to palm off upon the subscribers real estate for $125,- 
 OOQ, which cost them but $30,000, and if they succeeded fully 
 in^ their scheme, thus dividing among themselves, at least, 
 $90,000 in profits, they perpetrated a gross fraud upon everv 
 subscriber who wa,8 ignorant of the facts, for which they m&y 
 
Getty v. Devlik. 37 
 
 in some form, upon the plainest principles, be held responsi- 
 ble. 
 
 There is another ground of liability. The subscribers to 
 the paper agreed jointly and for their mutual benefit and ad- 
 vantage, to purchase certain lands, designated, for a price 
 named. Ji]"o one of the subscribers could, alter this, purchase 
 the lands for a less price and compel his associates to allow 
 him more than he paid. His purchase would inure to the' 
 benefit of all the subscribers. That this is so, is so thoroughly 
 settled, both upon principle and authority, that it will not be 
 disputed. In all sneh cases, the subscribers enter into rela- 
 tions of trust and confidence with each other. 
 
 They engage in a common enterprise for their mutual bene- 
 fit, and have the right to demand and expect from their asso- 
 ciates good faith in all that relates to their common interests. 
 Equality and mutuality of burdens and benefits is implied in 
 all such enterprises in proportion to the amounts subscribed, 
 and no one of the subscribers can be permitted to take to 
 himself a secret or separate advantage to the prejudice of his 
 associates. If this be so as to a purchase made after the sub- 
 scriptions are written, why should not the same rule be ap- 
 plied to a purchase made before? 
 
 The wrong and breach of faith is just as great,' and every 
 reason and authority showing that the rule should be applied 
 in the one case would show that it should be applied in the 
 other. Bently v. Craven, 18 Beavan, 75, is an authority quite 
 in point. There, one of several partners was employed to 
 purchase goods for the firm. He, unknown to his copartners 
 supplied the firm, at the then market price, with goods pre- 
 viously bought by himself for his Individ nal business when 
 the price was lower, and so made considerable profit. The 
 master of the rolls held that the transaction could not be sus- 
 tained and that he was accountable to the firm for the profits 
 thus made. Hence, upon this theory, these four defendants, 
 in dividing the large profit among themselves, perpetrated a 
 fraud upon all the hona fide subscribers, for which they are 
 accountable in some form. 
 
 But there is still another ground upon which the plaintiffs 
 can base their right to recover, equally apparent. The four- 
 defendants had agreed among themselves to be jointly inter- 
 
38 Fkaud. 
 
 ested in the lands, and that they would pnt them into a com- 
 pany at a large price above their cost and divide the profits 
 between them. In pursuance of this agreement they took 
 measures to organize a company, and for that purpose liad 
 drawn up the subscription paper and signed it, and caused it 
 to be circulated for subscribers. 
 
 In this adventure of getting up the company, sellins the 
 lands and dividing the profits, they may be regarded as part- 
 ners. It matters not that the title to the lands was not in all 
 the partners, nor does it matter that there were no written 
 articles of copartnership between them. Such a copartner- 
 ship could be created by parol, and particularly after the 
 , partners have acted as such to the final termination of the ad- 
 venture and divided the profits between them, they are cer- 
 tainly in no position to deny the existence of a valid copart- 
 nership. It was part of the business of this copartnership 
 to get up this company and sell these lands to it; and all tha* 
 one copartner did and r.epresented while engaged in this 
 business bound the others, and all are responsible for the false 
 and fraudulent representations made by either in the same 
 business. All these questions were discussed and decided in 
 the case of Chester v. DicTcerson, decided at the last March 
 term of this commission (54 N". Y. p. 1), and, therefore, need no 
 further consideration at this time. Hence, the four defend- 
 ants are responsible for the false and fraudulent representa- 
 tions made by Atwood to induce Holcomb to subscribe. 
 They must also be held responsible for the false representa- 
 tions made by Gifford to induce the plaintiffs, Getty and 
 Amelung, to subscribe. He was not sworn, and it does not 
 appear positively at whose instigation he acted. He was a 
 son-in-law of Atwood, and one of the persons to whom a sub- 
 scription of $5,000 was given; at least, he subscribed and 
 never paid ; and yet h's subscription was marked paid. He 
 was engaged in procuring subscriptions to the paper which 
 the four defendants caused to be drawn, and he was at work 
 in their interest and in the furtherance of their scheme, and 
 they enjoyed the advantage of what he did. It is not too 
 much, therefore, to hold upon these facts, unexplained and 
 uncontradicted, that he was acting upon the employment or 
 instigation of the four defendants or some one of them ; and 
 
Getty v. Devlin. 39 
 
 if he did, they are all responsible for his acts and misrepre- 
 sentations. 
 
 I am, therefore, clearly of the opinion that the plaintiffs 
 were entitled trf relief in some form. They could not, on hc- 
 count of the frand, recover back all the money paid by them, ■ 
 because they could not restore the four defendants to the po- 
 sition they were in before the transfer of the real estate to the 
 company. The real consideration for the money subscribed 
 and paid was the real estate which was conveyed to the com- 
 pany at the request of the subscribers. The company took 
 the title to the real estate, and then their interest in the com- 
 pany, and through it in the real estate, was represented by 
 shares of stock. Tiie plaintiffs did not place the four defend- 
 ants in the position they were before the real estate was con- 
 veyed, by returning their stock, because what the defendants 
 parted with was the real estate, and that had passed beyond 
 their control. The plaintiffs caused it to be seized and sold 
 for their debts against the company, after the discovery by 
 them of the fraud of which they complain. It is a rule, quite 
 uniform, that a party who seeks to recover back money which 
 he has been induced to pay for property by fraud, must restore 
 the property before he can rescind the contract of purchase 
 and recover the money paid. And lie must act promptly up- 
 on the discovery of the fraud: Odbh v. Hatfield, 46 N. Y. 
 533; Masson v. Bovet, 1 Denio, 69; Mayer y. Shoemaker 
 5 Barb. 319. It matters not, so far as I can discover, that it 
 is difficult or even impossible for him to do so, so long as he 
 is not prevented, by the act of the wrong-doer. Before he can 
 adopt this form of remedy he must do it, and the action in 
 such case may be at law. All the defrauded buyer has to do 
 is to tender back what he' has received, and then he can com- 
 mence his action at law to recover the money paid. In tin's 
 case, if the tender .of the release of the stock was sufficient, no 
 resort to equity was necessary or proper, as each one of tlie 
 plaintiffs could at once, after the tender, have sued in an ac- 
 tion at law to recover the amount of money paid by him. A 
 joint action by all the plaintiffs would not have been proper. 
 Hence, this action can not be maintained for the recovery of 
 the entire amounts paid by the plaintiffs, upon the theory that 
 they have restored to the four defendants all that they parted 
 with for the plaintiffs' money. 
 
40 Fkaub. 
 
 The plaintiffs could each liave sued the defendants to re- 
 cover damages for the fraud perpetrated upon hi in in proeur- 
 ing his subscription, and could, pi'obabl.v, have recovered the 
 difference between the actual value of what he received and 
 the amount paid by liiin. But such an action would have 
 been a common law action, to which each person or firm de- 
 frauded would be plaintiff, and the wrong-doers alone de- 
 fendants. 
 
 This is not such an action. But I think, under tlie com- 
 plaint in this action, the f»»ur defendants may be coujpelKxl to 
 account for the profits they made upon the real estate, and 
 which tliey fraudulently appropriated to the exclusion of 
 their associates. The court can ascertain what the land actu- 
 ally cost the four defendants, and hold them to account for 
 the balance. This balance equitably belongs to those who paid 
 the money, and the plaintiffs can, in this action, recover their 
 fro rata share thereof. It may be that the four defendants 
 should account for their own subscriptions as if paid, and also 
 for such subscriptions as they gave away; and' it may also bo 
 that there should be a redistribution of tlie stock among the 
 'bona fide subscribers alone. But these matters of detail we 
 do not determine; it is sufficient that the plaintiffs are enti- 
 tled to some relief of the character indicated. 
 
 It matters not that the court at special term found all these 
 transactions to be innocent and free from fraud. No finding 
 of any court can change the character of the undisputed facts, 
 and the vigilant eye of justice must have grown dim indeed 
 if it can not find some remedy for such a wrong. 
 
 Tiie judgment must be reversed and new trial granted, 
 costs to abide the event. 
 
 All concur, except Lott, Cli. 0., not sitting. 
 
 Judgment reversed. 
 
Leaming v. Wise. 41 
 
 x/eaming et al. v. wise et al, 
 
 (73 Pennsylvania State, 173. Supreme Court, 1873.) 
 
 ' Right to rescind, lost by delay. Where there is undue delay in the offer 
 to rescind a contract, and the value of the stock which should have 
 been tendered on the discovery of the fraud, has meanwhile declined, 
 it amo jnts to an affirmance of the contract and the right of rescission is 
 lost. 
 
 ' Seasonable time, a question of law. Where the facts are undisputed, 
 virhat is a reasonable time or an undue delay is a question of law for the 
 court. 
 
 February 18, 1873. Before Eead, C. J., Shaeswood, "Will- 
 iams and Mekcue, JJ. Agjmew, J., at Nisi Prius. 
 
 This was an action of assumpsit brought October 30, 1869, 
 by I. Fisher Learning and anotliei", trading as Wain, Learning 
 & Co., against diaries Wise and Ellwood T. Pusey, to re- 
 cover back money paid by plaintiifs to defendants for oil 
 stocks, alleged to have been sold under false representations. 
 
 The case was tried January 5, 1871, before Lynd, J. 
 
 The plaintiifs' evidence was that in March or April, 1864, 
 they bought from the delendants 3,000 sliares of stock in the 
 Watson Petroleum Company and Great Western Oil Com- 
 pany at $3 per share for the one and $2.50 per share for the 
 other; that the defendants represented to them that if tliey. 
 bought the stock tliey would get it at the same price at which 
 the defendants themselves took it, being only the actual cost 
 of the land and 50 cents per share for working capital; that 
 defendanto also represented that other persons, whom they 
 named, and whose judgment as to oil stock ranked liigh in 
 the community, had purchased stocks at tlie same price; that 
 some time afterward they learned that the statements in re- 
 gard to the cost of the land, etc., were inaccurate, and 
 March 2, 1866, they tendered the certificates of stock to the 
 defendants, and gave them notice that they rescinded the con- 
 tract. 
 
 1 Woodruff V. North BJooinfield Co., 1 West C. R. 87. 
 
 "Patterson v. Hitchcock, 6 M. R. 542; Luckhart v. Ogden, 2 M. R. 602,' 
 
42 Fraud. 
 
 Tlie plaintiffs gave other evidence in support of their case 
 and closed. 
 
 Tlie defendants .ijave evidence in contradiction of the 
 plaintiffs as to the representations; among other things, that 
 when the plaintiffs purchased the stock nothing had beenjsaid 
 about the price of the land or the cost of tlie stodS. 
 
 They gave evidence also that in October or November 
 1865, they had informed the plaintiffs what the land cost^ 
 which was less tlian the amount the plaintiffs said they had 
 put it at when they bought the stock; that the plaintiffs had 
 afterward paid an assessment on the stock; tliat there was no 
 tender of tl>e stock till after the wells had been finished and 
 the working capital exhausted; that the companies had put 
 down two wells, but had not got any oil, etc. 
 
 The defendants submitted six points. The fourth with its 
 answer was: 
 
 " If the plaintiffs were informed by Charles Wise, in Oc- 
 tober, 1865, of the original cost of the land, and did not then 
 repudiate the contract, but waited until March, 1866, taking 
 their chances of oil being obtained in the meantime, and 
 only made offer to return when the working capital was ex- 
 hausted and the wells a failure, they are not entitled to re- 
 cover." 
 
 Answer: "This I have pretty well covered in my general 
 charge, and I say further, in specific answer, that if you find 
 the facts as put In this point, then tlie conclusion of law that 
 the plaintiffs are not entitled to recover is correct." 
 
 In the general charge, the court said on this point: 
 
 " In the fall of 1865, it was that Mr. "Wise told Mr. Learn- 
 ing, Sr., the actual cost; it was after that that the assessment 
 was paid. *1 think I went to his counting house in October, 
 1865. It was Tiot more than three or four weeks later in Oc- 
 tober, 1865. There was no tender of the stock until after the 
 working capital was exhausted.' 
 
 " Now, gentlemen, upon this subject I simply instruct 
 you: 1. If you find that the plaintiffs were informed of 
 the price of the land by Mr. Wise in October, or early in 
 November, 1865. 2. That the plaintiffs did not offer to 
 return to the defendants the stock in question for one or 
 more months after such infonnatioa was given (the date is 
 
Leaming v. Wise. 43 
 
 given, the evidence is March the 2d, 1866); that the price 
 of the stock had fallen between the time of the receipt of 
 the information and the time of the tender, or that any other 
 unfavorable circumstances appearing from the evidence oc- 
 curred in the interval, so that the defendants would be in a 
 worse condition by taking back the stock at the time of the 
 tender than they would have been if the stock had been pre- 
 viously tendered, or tendered at the time the information was 
 given; then your verdict must be for the defendants." 
 
 The verdict was for the defeudants. 
 
 Tlie plaintiffs took out a writ of error. They assigned 
 fourteen errors. The eleventh was the answer to the defend- 
 ants' fourth point; the fourteenth was the portion of the 
 charge given above. 
 
 S. S. IloLLiNGSwoETH, with whom was G. W. Biddlb, for 
 plaintiffs in error. The seller having by his fraud put the 
 buyer in possession of the stock, can not complain of the de- 
 lay of tender of the goods before suing for the purchase money: 
 Blakti V. Mowatt, 21 Beavan, 603. Where the rights of third 
 parties have not intervened, the right to rescind can be lost 
 only by confirmation: Kerr on Frauds, 235 et seq. and notes; 
 Negley v. Lindsay, 17 P. F. Smith, 217. The delay might be 
 explained by other facts, and the question was therefore for 
 the jury: Bowe v. Osborne, 1 Starkie, 112; Lawrence v. 
 Knowles, 5 Bingh. N. 0. 399; Charnleyv. Dulles, 8 W. & 
 S. 353. 
 
 K. P. White, for defendants in error. The question of rea- 
 sonable time was one of law: Atwood v. Clark, 2 Greenleaf, 
 249. The- rescission must be in a reasonalile time:. Z^ows v. 
 Smith, 32 Yermont, 6. Such time is the earliest moment after > 
 discovering the fraud: Weed v. Page, 7 Wise. o\Z; Kingsley 
 V. Wallis, 14 Maine, 57; Masson v. Bovet, 1 Denio, 74; Howe 
 V. Huntingdon, 16 Maine, 350; Hill v. Rdbart, 16 Id. 168; 
 Campbell v. Fleming, 1 A. & E. 40 ; Ayers v Mitchell, 3 
 Shaw & McLean, 683; Hoolbrooh v. Burt, 22 Pick. 546; 
 Clark V. Ascha7n, 1 Ellis, B. & Ellis, 148. 
 
 The opinion of the court was delivered May 17, 1873, by 
 Williams, J. 
 
44 FfiAUD. 
 
 I'he only question woi'thy of consideration in this case is 
 presented by the 14tli assignment. Tlie action was brought 
 to recover the price paid for certain oil stocks which the plaint- 
 iffs alleged that they had been induced to purchase upon tlie 
 fraudulent representations of the defendants, as to the cost 
 of the land; and a recovery was sought to be had on the foot- 
 ing of the plaintiffs' rescission pf the contract and a tender of 
 the stocks to the detendants before bringing the action. The 
 evidence shows that the plaintiffs bought the stocks in April, 
 1864; that they were informed by the defendants, in October 
 or November, I860, of tlie price paid for the lands; and that 
 on the 2d of March, 1866, they tendered the stocks to the de- 
 fendants and demanded back the money they had paid for 
 them. Between the discovery of the alleged fraud and the 
 tfender of the stocks the assets of the company had been ex- 
 hausted in boring unsuccessfully for oil, and the stocks had 
 consequently depreciated in price. The court charged the 
 jury that if they found that the plaintiffs were informed of 
 the price of the lands by Mr. "Wise in October, or early in 
 November, 1865; that the plaintiffs did not offer to return 
 to the defendants the stocks in question for one or more 
 months after such information was given (the date is given, 
 the evidence is March 2d, 1B66); that the price of the stocks 
 had fallen between the time of the receipt of tlie information 
 and the time of the tender, or that any other unfavorable cir- 
 cumstances appearing from the evidence occurred in the inter- 
 val, so that the defendants would be in a worse condition by 
 taking back the stocks at the time of the tender, than they 
 would have been if the stocks had been previously tendered 
 at the time the information was given, then their verdict must 
 be for the defendants. The objection made to the charge ie, 
 that the mere delay in making the tender, after discovery of 
 the fraud, is not in itself ^ defense to the action; and whether 
 it is such as to amount to a confirmation of the sale or a loss 
 of a right to rescind it, is a question of fact for the jury. 
 
 If the defendants were guilty of the alleged fraud, the 
 plaintiffs, on discovering it, had the undoubted ri^ht to re- 
 scind the contract, and upon a tender of the stocks, to demand 
 back the price paid for them. But it was their duty to do it 
 within a reasonable time. They were not at liberty to await' 
 
Leaking v. "Wise. 45 
 
 the result of the experiments the companies were making to 
 obtain oil, and to rescind the contract after their efforts had 
 proved to be fruitless. If they intended to rescind the con- 
 tract it was their duty to act promptly and to return or tender 
 the stocks at the earliest convenient moment after discovering 
 the fraud. If tiiey unduly delayed to return them and de- 
 mand back tlie'Jprice, they affirmed tlie validity of the contract: 
 Pearwll v. Chapin, 8 Wright, 9; Negley v. Zindsay, 17 P. • 
 F. Smith, 217. Wliat is reasonable time or xindue delay, when 
 the facts are not disputed, is, as"is well settled, a question of 
 law to be determined by the court: QvMm longum esse debet 
 non definitur injure sedpendet ex discretione justiciariorum: 
 1 Tho. Co. Litt. 644 (52 b). 
 
 Here the delay was for four months, and no evidence was 
 given to explain or excuse it. Under the circumstances we 
 have no hesitation in saying that it was unreasonable. The 
 inference is pregnant that if, in the meantime, oil had been 
 found in large quantities, there would have been'no rescission 
 of the contract or offer to return the stocks. The plaintiffs 
 could not take the chance of the speculation, and at the same 
 time repudiate the contract if it turned out to be a losing bar- 
 . gain. Besides, the instruction complained of was not predi- 
 cated of the mere fact of the plaintiffs' delay in offering to 
 rdiurn the stocks, but of the delay coupled with the fact that 
 the price of the stocks had fallen in the interval between the 
 discovery of the alleged fraud and the date of the tender. The 
 verdict of the jury establishes both of tliese facts, and we 
 are clearly of the opinion that they are sufficient to bar 
 the plaintiffs' right to rescind the contract. There was, then, 
 no error in the instructions of the court, and they were as 
 favorab!e to the plaintiffs as they had any right to ask or 
 expect. 
 
 There is nothing in the other assignments requiring special 
 notice. The evidence complained of had more or less bearing 
 upon the question in issue, and there was no error in its ad- 
 mission that calls for a reversal of the judgment. 
 
 Judgment affirmed. 
 
46 FiiAUD. 
 
 Aethue v. Gei^wold et al. 
 
 (55 New York, 400. Court of Appeals, 1874.) 
 
 ' Personal liability of directors. Directors do not become personally liable 
 for the fraud and misrepresentations of the ajtive manager of a corpo- 
 ration from the mere fact of their holding such office in the company. 
 Knowledge of or participation in the guilty act must be brought home 
 to the person charged. 
 
 No pei'sonal rosponsibility for ft-and of associates. The fact, therefore, 
 that a defendant's name was published as trustee, and stock issued to 
 him, do not mate him responsible for a fraud carried out by other 
 trustees and agents of the corporation. 
 
 Misrepresentations by corporate ag'cnt do not bind or affect the officers 
 of the corporation in their individual capacity, so as to impose liability 
 upoh them in an action where they are sued personally. 
 
 False representations must be inducing: cause. False representations, 
 such as make corporate officers personally liable to a person advancing 
 money on them, must not only be false to the knowledge of the parties 
 making them, but must be the inducing cause to the person parting 
 with his property. 
 
 ' Misjoinder— Sundry counts— Facts of the case. Plaintiff sued five per- 
 sons, all trustees of the corporation ; one of the two counts on which he 
 went to the juiy was based upon alleged fraudulent representations by 
 which plaintiff was induced to make loans to the company; the other 
 count was upon the statute making ofiSoers personally liable for making 
 false reports. The evidence would have justified a verdict against four of 
 the defendants who had signed the report, but the fifth was not liable on 
 that count, because he had not signed the report, and was not liable 
 under the other evidence upon the first count. Held, that a new trial 
 must be had as to all the defendants. 
 
 Appeal from judgment of the General Term of the Supreme 
 Court in the second judicial department, affirming a judgment 
 in favor of plaintiff, entered upon a verdict and affirming an 
 order denying a motion for a new trial. 
 
 The first count of the complaint in tliis action was for 
 fraud. It alleges that plaintiff was induced by false and 
 fraiidulent representations upon the part of tiie defendants, 
 trustees and stockholders of the Iron Mountains Oouipany of 
 Lake Chainplain, a mining company organized under the iten- 
 eral laws (Chap. 40, Laws of 1848, and amendments), by which 
 representations ho was induced to lend said company the sum 
 of $45,000. 
 
 ' Walcetnan y. DalUi/, 51 N. Y. 27; 10 Am. R. 551. 
 ^ Freeland v. McCullough, 4S Am. Dec. 694, note. 
 
Aethue v. Griswold. 47 
 
 The fifth count of the complaint alleged' that defendants 
 made, filed and published a report, as required by said statute, 
 in Januarj', 1870, which was false in a material representation 
 in statini? that the capital stock of the company had been paid 
 up in full, when they knew well that no part of the same had 
 been paid * * * except in lands of little or no value. 
 Proof was given upon the trial of false representations upon 
 the part of one Kichard Remington, an agent of the corpo- 
 ration; this was received under objection, ' A printed pros- 
 pectus containing alleged false representations, purporting to 
 have been issued by the company, was also given in evidence. 
 The facts in regard to the negotiations for the loan, and the 
 particular representations upon which plaintiff relied in'mak- 
 ing the same, are set forth in the opinion. The report set 
 forth in the fifth count was not signed by defendant. Corn- 
 ing; it was shown to be false as alleged. At the close of 
 plaintiff's case, defendants jointly and severally moved for a 
 nonsuit. The court held in effect that there was sufficient 
 evidence to goto the jury under the first and fifth counts; that 
 plaintifi" was not entitled to recover under the others. 
 
 At the close of the evidence a motion for nonsuit was made 
 on behalf of the defendant. Corning. The court decided that 
 he was not liable under the fifth count, but that the question 
 as to his liability under the first must go to the jury, as his 
 name was published as a trustee, and a certificate of stock was 
 issued to him. The court charged the jury that it ruled as 
 matter of law that the plaintiff was entitled to a verdict 
 against the defendants, George M. Wheeler, John A. Griswold 
 and Chester Griswold, for the amount of his claim, under the 
 fifth count; that if they found the defendants had assented to 
 the making and circulation of representations, known by them 
 to be false and fraudulent, then they would find a verdict 
 against all the defendants for the amount of plaintiff's claim: 
 but if they found no fraud on the part of tlie defendants in 
 these representations, then their verdict should be in favor of 
 Mr. Corning and against the other three defendants, for the 
 amount of his claim. The counsel for the defendants excepl- 
 ed to the submission to the jury of the question as to the lia- 
 bility of Mr. Corning, and also as to each of the other de- 
 fendants. 
 
48 Feaud. 
 
 Tl\e jury rendered a verdict against all the defendants for 
 the amount of plaintiff's claim with interest. 
 
 E. W. Stotjghton, Wm. C. IIolbeook and Amasa J. Paekee, 
 for the appellants. 
 
 A. G. Hand and Samuel Hand, for the respondents. 
 
 Chueoh, Oh. J. 
 
 The first question proper to consider is whether it was error 
 to refuse a nonsuit as to the defendant Corning. His name 
 was not appended to the report, which it is claimed contained 
 false statements, and of course he is not liable on that account. 
 
 The only ground of action claimed against him is that set 
 forth in the first count of the complaint, which is in effect 
 that the plaintiff was induced to loan to The Iron Mountains 
 Company, of which tlie defendants were directors, $45,000 by 
 false and fraudulent representations. It is alleged that the 
 creation of the company was a fraudulent scheme entered into 
 by the defendants for the purpose of deceiving the public; 
 that property of comparatively insignificant value, transferred 
 by some of the defendants, was represented by a capital of 
 $2,000,000; that the defendants were directors of the company, 
 and issued a prospectus containing exaggerated and false state- 
 ments of the resources of the company, and especially of the 
 value of the mines and the quantity and quality of the iron 
 ores contained therein, and the expense of working the sauT-j, 
 and the profits to be realized therefrom. 
 
 To maintain an action for obtaining money or property 
 by fraudulent representations, it must be shown that the per- 
 son charged made tiie representations, that they were false to 
 his knowledge, and that the representations were relied up- 
 on, and were the inducing cause for parting with the property. 
 There is a significant weakness in the plaintiff's ca^^o to estab- 
 lish the first branch of the rule of liability against the defend- 
 ant Corning. He had no interest in the property transtbrred 
 to the company, and did not participate in its organization. 
 It does not appear tliat^he ever attended a meeting of the 
 directors, or that he was ever in Essex county, where the prop- 
 erty is located, or in the ofHce in New York whr.i',1 the IIumii- 
 
Arthur v. Guiswold. 49 
 
 cial business was transacted, and, as bo the prospectus, whicli 
 contains tlie principal alleged false representations, it does 
 not appear that he ever saw it or knew of its existence. Tiie 
 only evidence against him was that he was named a director, 
 and 100 shares of stock were isaned in his name on the books 
 of the company, the certificates of whioii were mailed to him. 
 But for the inference which may resiilt from the admission 
 in liis answer that he was a director, there would be no evi- 
 dence that he knew that he occupied that position. We think 
 the evidence was insufficient to maintain a cliarge of fraud. 
 
 The mere fact of being a: director and stockholder is not 
 ■per se sufiicient to hold a party liable for the frauds and mis- 
 representations of the active managers of a corporation. 
 Some knowledge of and participation in the act claimed to 
 be fraudulent must be brought home to the person charged: 
 51 N. Y. 27. Tiie pamphlet or prospectus was, in fact, print- 
 ed before the organization of the company, and was mainly 
 prepared by one Remington, who was tlie active promoter 
 and manager of ,the company; but tliat Mr. Corning had 
 any connection with it or knowledge of its existence, is not 
 shown. 
 
 Again, there is no evidence that lie knew tliat any of the 
 statements contained in the pamphlet were false. If he knew 
 of them tliey might have deceived him, for aught that ap- 
 pears, as well as the plaintiff. Tiie plaintiff, as he swears, 
 loaned his money npon certain statements of Remington, and 
 upon faith in the names mentioned as directors, but he made 
 the loan to the company and not to the directors. He had no 
 right to rely upon their pecuniary responsibility, from the 
 fact of being directors. No such responsibility attaches to 
 the office. It is only when a director lends his name and in- 
 fluence to promote a fraud upon the community, or is guilty 
 of some violation of law, or other mismanagement, that he is 
 personally liable. When this is shown, he should be held to 
 a strict rule of accountability. None of these things are 
 shown against Mr. Corning. 
 
 The learned judge submitted the case as to him solely be- 
 cause " his name was published as a trustee, and a certificate 
 of stock was issued to him." We do not think this sufficient 
 to authorize a verdict based upon fraudulent represen:ations. 
 
 VOL. VII.— 4 
 
oU Fraud. 
 
 If tho defendants had confederated together to create a 
 fraudulent corporation, the use of their names as directors by 
 their consent, to give it credit with the public, would have 
 presented a different question; but, although alleged, this 
 charge was not relied upon, and the case was submitted upon 
 the representations contained in the prospectus. 
 
 As to the other defendants there is more diflScnlty. The 
 evidence was sufficient against them to go to the jury upon 
 the fraud. We must assume that the verdict was rendered 
 iipon the first count against all the defendants, although the 
 court ruled, as matter of law, that the other defendants were 
 liable under the fifth count of the complaint, which was to 
 enforce the liability created by the fifteenth section of the act 
 of 1848, as amended by the second section of the act of li^53, 
 upon the ground that material statements in the report of 
 1870 were false. The court charged the jury, in effect, that 
 if they found the fraud, to render a verdict against all the de- 
 fendants; if not, to render a verdict in favor of the defendant 
 Corning, and against the other defendants, under the fifth 
 count; and the jury found against all under the first count, 
 and the rulings at the trial are therefore brought in review as 
 to the other defendants. 
 
 The two principal errors claimed on the trial are, first, that 
 illegal evidence was admitted; and second, that it does not 
 appear that the plaintiff relied upon any representations for 
 which the defendants are responsible. The evidence is quite 
 voluminous, and is made up largely of the representations 
 and statements of Eemington, who, as before stated, was tho 
 chief manager of the company. These statements and rep- 
 resentations were incompetent as evidence against the defend- 
 ants in this action. He was the agent of the company, but 
 was not their agent as individuals, and had no power to bind 
 them by any statements he might make (7 Paige, 120), much 
 leis for false and fraudulent statements. 
 
 It is true that the judge told the jury in his charge that the 
 defendants were not liable for his statements to wiiich they 
 were not privy; but this did not remove the inflnence which 
 the evidence must have had upon the minds of the jury. The 
 case was tried upon the theory that these statements were 
 competent, not only those made to the plaintiff, but to other 
 
Arthur v. Griswold.", 51 
 
 persons, about the time of the transaction; and the remark 
 of the judge was qualified to statements to which the defend- 
 ants were privy, and did not specify which of the numerous 
 statements came within the qualification and which did not. 
 
 This evidence constituted, apparently, the most important 
 given, and must have made a serious impression, which the 
 remark of the judge in his charge could not eradicate. With- 
 in the principal decided in 19 New York, 299, this error was 
 not obviated. 
 
 The second ground of error is also 'a serious one, and was 
 involved in the motion for a nonsuit made on behalf of all 
 the defendants. The representations must not only be made 
 by the party charged and be false to his knowledge, but they 
 must be relied upon, and be the inducing cause of parting 
 with the property. The plaintiff was a witness in his own 
 behalf, and stated that the loan was applied for by one Schu- 
 barth, a friend of his, who desired to Jiegotiate the loan to 
 enable him to obtain a prominent position in the company; 
 and he presented a letter addressed to himself from Reming- 
 ton, giving a somewhat glowing account of the prospects of 
 the company, and stating the securities, etc., which would be 
 furnished for the loan. He then testified: "Upon looking 
 over the statement of Mr. Remington, and at that book with 
 the names attached to it (the prospectus), I thought well of it, 
 and Mr. Schubarth said to me it would give him position in 
 the company. I felt friendly to him, and I said I would 
 make inquiry the next day, and give him an answer." He 
 did consult with a friend about it, and then said: " Upon the 
 fact of such individuals being connected with the directory, 
 I told Mr. Schubarth, I would make the loan." It seems, 
 however, that he desired to know how much stock the direct- 
 ors owned, and Schubarth procured from Remington another 
 letter containing tiie information. The plaintiff then testified: 
 " Upou receipt of that letter I felt satisfied, and said to 
 Schubarth that I would make the loan, and that he could 
 make what arrangements he thought proper. He told me it 
 would put him in a respectable position with the company." 
 When he went with his attorney to consummate the loan, 
 Remington made some other representations about the quality 
 af the ores, and showed specimens of iron made from it, and 
 
52 Fraud. 
 
 exhibited a topographical survey of the mines. This was the 
 substance of all that took place prior to making the first loan 
 of $35,000. The plaintiff was then asked, " Would you have 
 made the first loan which you made to the Iron Mountains 
 Company, except for the representations that you have stated 
 were made to you?" To which he answered, "Never." 
 Upon this evidence was the jury authorised to find that tlio 
 plaintiff relied upon and parted with his money upon the faitli 
 of the representations contained in the book, or prospectus, 
 assuming that the defendants were responsible for tiiem? The 
 plaintiff does not say that he read the statements in the book, 
 nor that he relied upon any contained therein. The only 
 mention of the book in his evidence is that, after looking over 
 Remington's statement and at the book with the names at- 
 tached, he thought well of it; but that the contents of tlie 
 book did not seriously impress his mind is evident from his 
 next statement, that upon the fact that such names were con- 
 nected with the directory, he told Schubarth that he would 
 make tiie loan, and upon the receipt of Remington's next 
 statement, he felt satisfied, and unqualifiedly agreed to make 
 it; and the only other representations were those of Reming- 
 ton about the time the loan was consiimmatS'd. When he 
 said he would not have made the loan but for the representa- 
 tions made to him, it would be a strained and unnatural con- 
 struction of the evidence to say that he referred to the state- 
 ments in the book. Collating; all that the plaintiff said, the 
 natural, if not the necessary inference is that he was induced 
 to make the first loan partly to aid his friend Schubarth, 
 partly from the well-known character of the directors, but 
 mainly from the representations of Remington, to say nothing 
 of the prospect of future profits from the stock and bonds 
 transferred to him; but it is difficult to infer that the state- 
 ments in the book were either known to him .or were influ- 
 ential in inducing him to make the loan. 
 
 It can not be claimed that the plaintiff' was induced to believe 
 that anything like $2,000,000 had actually been paid in as capi- 
 tal, as the second letter of Remington, upon the receipt of which 
 he was satisfied to loan the money, distinctly stated that hut 
 $250,000 had been paid for all the property, and about $100,000 
 for buildings and machinery; and althongh tiiis statement was 
 
Arthur v. Griswold. 53 
 
 probably an exaggeration, "it repelled the idea of reliance upon 
 the large capital specified. The element of reliance upon the 
 alleged representations necessary to sustain the action was 
 within the power of the plaintiff, if true, to establish. If he 
 was diiceived by the representations in the prospectus, and 
 was induced thereby to loan his money, he should have so 
 stated. This he did not do, but did state substantially that 
 other representations and circumstances, for whiph the de- 
 fendants were not responsible, furnished the motive for loan- 
 ing the money. 
 
 Such an action can not be sustained upon misplaced confi- 
 dence induced by vague surmises. The rules of law require a 
 reasonable degree of certainty as to each requisite necessary 
 to constitute the cause of action, viz., representations, falsity, 
 scienter, deception and injury. 
 
 The evidence that the plaintiff was deceived by the state- 
 ments in the book was, to say the least, very slight; but as 
 the errors in receiving evidence entitle the defendants to a 
 new trial on this branch of the case, it is unnecessary to de- 
 termine whether it was sufficient to justify its submission to 
 the jury, and it is equally unnecessary to notice other excep- 
 tions taken on the trial. 
 
 It is, however, insisted by the learned counsel for the 
 plaintiff, that if this court concurs in the opinion expressed by 
 the judge, that the defendants (except Corning) were liable 
 under the fifth count, judgment should be affirmed, notwith- 
 standing the errors committed on the trial in attempting to 
 establish a cause of action under the first count. This presents 
 a somewhat novel question. The causes of action are entirely 
 different. The first count is upon a common law liability for 
 fraud and deceit; the fifth count is for a statutory penalty. In 
 the former the injury proved is the criterion of damages, 
 which may be much less than the amount of the debt, unless 
 a case of exemplary damages is shown, when the recovery may 
 be much more than the debt; while in the latter no actual 
 damages need be shown, the recovery is for the amount of the 
 debt as a penalty, no more and no less. 
 
 It is urged by the defendants that the judgment, if affirmed, 
 would be based upon no verdict, but wpuld be in effect an 
 original judgment in this court upon a new cause of action. 
 
54 Fjraud. 
 
 Tliis court is authorized to reverse, affirm or modify tlie judg- 
 ment appealed from, as to any or all the parties (Code, § 330): 
 but does that authorize the court to reverse tlie judgment as 
 to all the defendants, grant a new trial as to one, and order 
 judgment against tlie other, for a cause of action which the 
 jury did not pass upon, although they might have done so? 
 Tlie tendency of courts is to disregard mere form and reach 
 the substance; and it is a general rule that errors or-mistalies 
 upon the trial will not entitle a party to a new trial, if, upon 
 the undisputed facts, the plaintiff is entitled to judgment as 
 matter of law. 
 
 A-lthough the causes of action were different, they are to be 
 deemed properly united, and they relate to the same general 
 transaction. They both sound in tort; and upon the assump- 
 tion that, as matter of law, the plaintiff was entitled to judg- 
 ment against the three defendants, and the court below should 
 have so directed, tliis court may perhaps affirm the judgment, 
 and regard the errors committed as immaterial. But my as- 
 sociates think otherwise, and are of opinion that the questions 
 arising under the fifth count are not before this court upon 
 this appeal. It follows that there must be a new trial as to all 
 the defendants. 
 
 Allen, Folgek, Eapallo and Andrews, JJ., concur for re- 
 versal and new trial as to all the defendants. 
 
 Geovee, J., concurs in reversal as to Corning, but dissents 
 as to the other defendants. 
 
 Judgment reversed. 
 
 Davidson v. Jordan. 
 
 (47 California, 351. Supreme Court, 1874.) 
 
 ' Hearsay representations of value. Representations of the value of a 
 mine, made by vendor upon hearsay, and known by vendee to hn hear- 
 say, can not be said to be false or fraudulent, unless the vendor knew, 
 or had reason to believe them to be untrue. 
 
 Defenso to note. Such hearsay representations, held, no defense to pur- 
 chase money note. 
 
 Cooper V. hovering, 6 M. R. 662. 
 
.l>AviDsoN V. Jordan., 55 
 
 Appeal from the District Court, Fourth Judicial District^ 
 City and County of San Francisco. 
 
 Action brought on the following promissory note: 
 
 "San Feancisoo, July 1, 1869. 
 " On or before the 1st day of April, A. D. 1870, without 
 grace, for value received, I promise to pay to the order of my- 
 selt^ twenty-five hundred dollars, in United States gold coin, 
 with interest from date till paid, at the rate of one per cent, 
 per month — interest payable monthly. 
 
 ' «D. Jordan." 
 
 The note was given in purchase of an interest in the " Stir- 
 ling Mine," in Arizona Territory. The defendant recovered 
 judgment in the court below, and the plaintiff appealed. 
 
 The other facts are stated in the opinion. 
 
 George & Lorre^BOEOPGH, for appellant. 
 
 The defendant should have shown by his answer and evi- 
 dence that he. had the right to rely, upon Frank's representa- 
 tions; that he did in fact rely upon them; that he placed a 
 known confidence in them ; that they were not a mere ex- 
 pression of opinion or information; that he was misled to his 
 injury; that his loss was not attributable to his own folly; 
 that he was guilty of no laches, but promptly notified Frank 
 of his intention to rescind the contract, and either that the 
 stock was worthless, or that he offered to transfer it to Frank: 
 Smith V. Bichards, 13 Peters, 26 ; Gifford v. Carvill, 29 Cal. 
 589; Fratt v. Fislce, 17 Cal. 380; 2 Parsons' Con. 767 etseq^.; 
 1 Story's Eq., § 195 et seq.; 1 Story's Con., § 497 et sei- 
 
 Parker & Koche, for respondent. 
 
 By the Court, Khodes, J. 
 
 The defense relied upon to defeat a recovery upon the 
 promissory note in suit, is the alleged false and fraudulent • 
 representations of Frank, the plaintiff's assignor. It appears 
 from the testimony of the defendant, that Frank, in repre- 
 senting the value of the mine, the amount and value of the 
 ore extracted and on hand, the supply of water and abundance 
 
56 FxiAUD. 
 
 oi" wood for the working of the mine, and other matters affect- 
 ing the value of the mine, spoke upon information received 
 from otlier persons; that he gave the defendant the names of 
 the persons wlio had communicated the inforn)ation to him, 
 and that tliose persons, in conversation witli tiie defendant, 
 corroborated all the statements made by Frank. Frank did 
 not profess to have seen the mine, or to have any personal 
 knowledge of its value, or of any of the matters in respect to-- 
 which the false representations are alleged to have been made, 
 but he merely communicated the information he had received 
 from others, and so stated to the defendant. . Representations 
 made in that manner can not be said to be false or fraudulent 
 unless Frank knew, or had reason to believe them to be un- 
 true, and there is no evidence in the case inculpating him in 
 that respect. 
 
 This view of the case renders it unnecessary to consider the 
 other points presented by counsel. 
 
 Judgment and mxler reversed, and cause remanded for 
 new trial. Remittitur forthwith. 
 
 'Law v. Geant. 
 
 (37 "Wisconsin, 548. Supreme Court, 1875.) 
 
 Fraud of agent unknown to principal. If an agent effect a sale by fd,lse 
 representations or other fraud, which false representations or fraud are 
 unknown to his principal, the leg-al status of the latter is just the same 
 as if the false representations or fraud had been made or done by himself. 
 
 I'alse representations made by stranger. A vendor maldng a sale in- 
 duced by the false representations of a third party to the knowledge of 
 the vendor, is responsible for the fraud, although the party making the 
 false representations was not his agent; but where the sale is made 
 without the vendor's knowledge of the fraudulent representations hav- 
 ing been made, the Consequences can not be charged to the vendor, and 
 the sale will stand. 
 
 Idem. The fact that false representations made by a stranger induced the 
 sale, the stranger having no motive in the transaction, unless he was to 
 be paid out of the proceeds, might induce a presumption of agency; but 
 such presumption can not be indulged if the conduct of such stranger 
 can be accounted for on an hypothesis consistent with the vendor's 
 innocence. 
 
 > Grant v. Law, 3 M. R. 80. 
 
Law v. Gjeant. 67 
 
 Facts of the case— Purchase ailvised by spiritual medium and witch- 
 hazel Tvizard. Plaintiff sold defendant land for $40,000, of which 
 $25,000 was secured by mortgage. The tract was worth about one 
 third the purchase money. Defendant had been induced to purchase 
 upon extravagant assurances of the existence of mineral, although after 
 much expenditure no mineral at all was found to exist on the land. 
 These representations were made by a party who professed to be able to 
 detect the presence of mineral by the " impressions produced by passing 
 over the place, " and a spiritual medium had advised the purchase. The 
 vendor, from the evidence, appeared to have known of the influences 
 at work upon the purchaser, and to have taken advantage of them to 
 ask an extravagant price for the land, but aside from this no fraud was 
 brought home to the plaintiff. In suit to foreclose the mortgage it was 
 held, that these facts did not constitute a defense. 
 
 ' Jury finding' in equity case. The verdict of a jury in equitable actions 
 is but advisory; the Court of Appeal reviews the whole evidence, and 
 the instructions to the jury are immaterial. 
 
 Appeal from the Circuit Court for La Fayette County. 
 
 Action to foreclose a mortgage. Defense, fraud in induc- 
 ing the plaintiff to contract the debt which it was given to 
 secure. 
 
 In December, 1867, the defendant purchased of the plaintiff 
 a tract containing 400 acres of land in La Fayette county, and 
 agreed to pay therefor $100 per acre, or $40,000 for the whole 
 tract. The defendant paid the plaintiff, in cash, at the time 
 of such purchase and on account thereof, $15,000, and gave 
 his five promissory notes for $5,000 each, and ten per cent, 
 interest for the residue of the price. He also executed to the 
 plaintiff a mortgage on the lands so purchased, to secure the 
 payment of such notes. Three months later the defendant 
 paid two of the notes, the otlier three notes remaining un- 
 paid. This action was brought in 1873, to foreclose such 
 mortgage. 
 
 The complaint is in the usual form. The answer is to the 
 effect that the land was only worth $32.50 per acre, or $13,000 
 for the whole tract, at the time the defendant purchased it, and 
 that he was induced to make the purchase at $100 per acre by 
 certain false and fraudulent representations made to liim by 
 the plaintiff and his nephew and agent, one Kichard S. Law; 
 that the defendant, who resided in Mobile, Alabama, desired 
 to purchase a tract of land in the southwestern portion of this 
 
 > MeGan v. O'Neil, 5 Colo. 58. 
 
58 FiiAUD. 
 
 State, proved to contain lead ore, for the purpose of mining 
 thereon, and for no other purpose; and that Richard S. Law, 
 knowing tiiat fact, and acting in the matter as the agent of tlie 
 plaintiflf, represented to one John MoDougall of Chicago, "the 
 agent, adviser and friend of the defendant," and requested 
 McDougall to communicate such representations to the de- 
 fendant, that (quoting from the answer) "the real estate de- 
 scribed in the complaint was, and had been proven to be, first 
 I'ate lead mining land, and that there was a large vein of min- 
 eral lead ore which had been discovered upon said land, at or 
 near a large spring of water tliereon, and at a depth of about 
 twenty feet from the surface of the ground, and that said vein 
 of mineral would produce, and there could be worked there- 
 from, lead ore and mineral of the value of five tlionsand dol- 
 lars each and every montli, and that said vein of mineral could 
 be opened so as to i)roduce mineral at the rate aforesaid witliin 
 thirty days fiom the commencement of mining operations 
 upon said land; that fine specimens of lead ore were con- 
 stantly being thrown out by the water in said spring, whicli 
 gushed out from twenty feet below the sui'faceof said land, to 
 the surface, which minenil came from the aforesaid spring; 
 that the said R. S. Law, to prove the existence of said vein 
 of lead ore, had heretofore, near the said spring of water, with 
 an artesian well drill or borer, drilled or bored a hole in the 
 rock, and had bored into and struck a fine drift or sheet of 
 lead ore mineral; that the said Richard S. Law had for a Ions 
 time been of the opinion that this tract of land was valuable 
 lead mineral land, and that, by boring therein as aforesaid, he 
 had verified his former opinion, and at that time knew that 
 said vein of mineral was there, and that a valuable mine could 
 easily be developed thereon"; that believing such representa- 
 tions to be true, McDougall immediately wrote to the de- 
 fendant at Mobile, communicating the same to him; and that 
 the defendant, upon the receipt of the communication from 
 McDougall, also believed such representations and, relying 
 implicitly upon them, came to Wisconsin at once and made 
 the purchase. The answer negatives the truth of such repre- 
 sentations and of other alleged false and fraudulent state- 
 ments made by Richard S. Law to McDougall, and repented 
 ill the letter of the latter to the defendant. The pi-oofs show 
 
Law v. Gkant. 59 
 
 that this letter was submitted by McDougall to Richard S. 
 Law, before it was forwarded, and was approved by him. The 
 letter is of suflScient importance in the case to justify its in- 
 sertion here at length. It is as follows: 
 
 " Eevere House, Chicago, December i. Bro. Grant — Dear 
 Sir: Our friend Mr. Law has returned with reports of the 400 
 acre tract of which I wrote you. It is a fine prairie farm, 
 nearly all in cultivation, with good improvements, good dwell- 
 ing and fine orchard, fine fence timber three miles oflF, within 
 five miles each of Shullsburg and Apple Creek railroad sta- 
 tion. The projected railroad goes within half a mile of it, 
 and the station will be only one mile off. The farm is leased 
 for two years from 1st April next, until which time we could 
 not obtain possession of it, but could go on and put up shan- 
 ties and work the ore as fast as we pleased. Mr. Law is con- 
 fident we could take out ore in thirty days from the beginning, 
 and make it then produce $5,000 worth monthly upon the 
 vein twenty feet from the surface; that the yield will refund 
 an advance in a few months, and furnish capital to run the 
 main level which we would begin. Fox regarded it as the 
 richest mine in the country, and tried to arrange to get it for 
 himself and Story, but Law had secured the refusal. There 
 is a spring yielding six barrels of water an hour, gushing out 
 twenty feet from the surface, and throwing out fine specimens 
 of lead ore. Fox went over it, and pointed out a place where 
 there was a rich deposit. Mr. Law went to the trouble of 
 boring there, and opened into an opening that struck the 
 spring's vein and a splendid drift. He had the promise of 
 the land at $100 per acre, but after he bored the owner was 
 disposed to advance price, and would to any one else. 
 Mr. Law had thought he could get it lower, but can not now. 
 His price and terms are $100 per acre, $iO,000 in fee simple, 
 the lessee to retain possession of the farm for the two years at 
 $50, or $20,000 forthe whole mineral, he retaining the surface 
 of the farm. Terms in either case $15,000 down cash, and 
 the remainder (whether it be $5,000 or $20,000) in annual 
 payments of $5,000 each, with ten per cent, interest from date, 
 he giving us a fee simple title at once, if we agree upon tak- 
 ing surface as well as lead, at $40,000. 
 
 " In this case we will have 400 acres for $40,000, instead of 
 200 acres for $44,000, better improved and in a better location , 
 
60 Fbaud. 
 
 that makes the land more convenient and valnahle, and plenty 
 of time to pay; and then Mr. Law thinks that returns in 
 thirty days after beginning will bo double that of the $44,000 
 mine, paying as we go; that a small engine and pump, both 
 costing $2,500, will lift all the water of the ground till we get 
 an adat (adit), which adat. Fox says, will, within a quarter of 
 a mile, tap a rich ridge, and at one half drain generally. So 
 certain of Mr. Law's facts am I, that I have not gone to see, 
 waiting for you. Now, to secure this, the trade must be 
 closed and $15,000 paid by the 24:th December; before Christ- 
 mas sure. "We propose you take three fifths, $24,000, and we 
 two fifths, $16,000, making the $40,000. You may, perhaps, 
 remember that in going to Apple Creek station from Sliulls- 
 burg, we came to a lane that crossed our road at right angles, 
 and turned suddenly to the left; well, it is just before we get 
 to that point, and off a mile to the left, that lies this 400 acre 
 tract of beautiful rolling prairie, with ridges or ribs running 
 through it like on the $44,000 tract. My only fear was of the 
 too great abundance of water in the spring at twenty feet from 
 surface. But Mr. Law regards it as a recommendation, as 
 showing the enemy (if an enemy), in front and in hand, re- 
 garding the spring not only as a useful drain and so much 
 water as desirable if lowered into the adat, but he reaards it 
 (and so does Fox) as the best evidence of ]arc;e and open caves, 
 and rich deposits through which it runs. I suppose it is so, 
 but a small engine and a good pump will soon displace it, so 
 near the surface as it is. Now, sir, [ advise that you come 
 up at once and choose between the two places, or as soon as 
 you can, and by all means writing at once your views, if the 
 facts on your coming bear out this report. If you conclude 
 to choose this last named place upon coming (if it is as we 
 think), perhaps your writing so, and that you will be here 
 by the 20th inst., will answer so that it can be conditionally 
 closed. The Silverthorne mine is doing well. As in the oth- 
 er trade, we would expect- you to advance now the $15,000 
 cash as j'ou propose to do, and have all the benefit in the way 
 of interest, etc. In answer please address immediately, Rich- ' 
 ard S. Law, both to care of Eevere House here, and at Shulls- 
 biirg, La Fayette county, Wisconsin, for fear it miss him. 
 " Yours very truly, etc., 
 
 " JnO. McDotTGALL. 
 
Law v. Grant. 61 
 
 "I may. reach K. O. before you start, if not before the 15th 
 inst, but don't wait for me. I'll return here soon. This is 
 my address here at the Revere House." 
 
 It may be stated here, by way of explanation, that Fox, 
 who is named in the above letter, is a person who is reputed 
 to possess the power or faculty of detecting mineral in the 
 earth by walking upon the surface above where the same is 
 deposited. 
 
 The answer further alleges, that after the purchase, the de- 
 fendant, at an expense of several thousand dollars, fully tested 
 the land for mineral; and such tests demonstrated that it does 
 not contain mineral; that thereupon the defendant tendered 
 the plaintiff a conveyance of the land, duly executed, and de- 
 manded the $25,000 which he had paid on account of the 
 purchase; and that the plaintiff refused to accept the convey- 
 ance or refund the money. The defendant brought an action 
 against the plaintiff to rescind the contract of purchase and 
 sale of the land, for fraud, and to recover what he had paid on 
 account of it, and obtained judgment in the action, although 
 not in accordance with the demand for relief. "On'appeal, this 
 court reversed the judgment, but did not determine any of the 
 questions involved in the present case: 29 Wis. 99. It was 
 stated on the argument that such action had been discon- 
 tinued. 
 
 The answer also contains a counterclaim for the amount paid 
 on account of the purchase and the cost of testing the land 
 for mineral, over and above the amount due on the notes which 
 the mortgage sought to be foreclosed was given to secure. 
 The court found that such excess was $34,900. But, at the 
 close of the trial, the defendant waived the excess of such 
 counterclaim over and above the amount due on the notes 
 and mortgage. The testimony is sufficiently stated in the 
 opinion. Certain questions of fact were submitted to a jury, 
 and they found, among other matters not material to the case 
 on this appeal, as follows: 1. That the plaintiff induced the 
 defendant to purchase the mortgaged premises by reason of 
 the false and fraudulent representations alleged in the answer. 
 2. That the value of the land, at the time the defendant pur- 
 chased it, was $30 per acre. 3. That the land is not valuable 
 for mineral purposes. The circuit court approved and con- 
 
62 Fkaud. 
 
 iirmed the finding of the jury, and in addition, or subsidiary 
 thereto, found the following facts: "The representations 
 made by R S. Law unto the defendant as to the land pur- 
 chased, made previous to and at the time of the sale, were so 
 made by the said E. S. Law for and in behalf of the plaintiff; 
 and in the negotiation of such sale, R. S. Law acted wholly 
 for and in the interest of the plaintiff, which the plaintiff then 
 well knew, or, if he had no positive knowledge on the subject, 
 all the facts and circumstances attending the transaction 
 should and must have satisfied any reasonable man that the 
 said R. S. Law was so acting wholly for the plaintiff. All 
 pretenses made by R. S. Law that he desired to become a 
 co-purchaser of such real estate with the defendant and Mc- 
 Dougall were false, and were intended by him to mislead the 
 defendant by inducing him to believe more implicitly the rep- 
 resentations said R. S. Law might make, he (the defendant) be- 
 lieving his and the said R. S. Law's interests in the matter 
 were identical * * *, 
 
 " "Within a reasonable time after the defendant discovered 
 and had knowledge that the representations made to him 
 by the said R. S. Law for the plaintiff, as aforesaid, as to 
 mineral discoveries having been made upon said land, and 
 as to the mineral qualities of said land, wore false and 
 were fraudulently made, to wit, on the 19th day of May, 
 1869, the defendant informed and made known to the plaint- 
 iff that he had been induced by fraudulent means, and the 
 fraudulent and false statements of said R. S. Law, made, 
 as aforesaid, for and in the interest of the plaintiff, to pur- 
 chase said real' estate at the price aforesaid, and then tendered 
 to said plaintiff a good and sufficient deed of conveyance of 
 the lands described in the complaint, executed by said defend- 
 ant to the plaintiff, and demanded that the plaintiff take the 
 said conveyance and refund to the defendant the sum of 
 $25,000, paid by him of the purchase price of said land, and 
 also that the plaintiff surrender to the defendant the three 
 promissory notes sued on in this action, all of which the 
 plaintiff then and there refused to do. Since said offered 
 rescission of said contract by the defendant, and knowledge 
 to the plaintiff of the fraudulent conduct of said R. S. Law in 
 the plaintiff's behalf in making such sale, the plaintiff has 
 
Law v. Grant. 63 
 
 constantly claimed, and now claims, the full benefit of the 
 contract of sale of said land made with the defendant." 
 
 The plaintiff appealed from the judgment dismissing the 
 complaint with costs. 
 
 Wm. E. Oaetee, for appellant, argned upon the facts in the 
 case: 1. That no false representations were made by E. S. 
 Law to Grant. 2. That KS. Law was not the agent of the 
 plaintiff. B. That the plaintiff had no knowledge of the 
 representations alleged to be fraudulent, at or before the sale. 
 4. That Grant did not rely upon the representations which 
 were made, if they were made. To the point that the decla- 
 rations of K. S. Law, not part oi the res gestcB, were improperly 
 admitted in evidence, he cited Dunlop's Paley on Agency, 
 256, 268; Packet Co. v. Clough, 20 Wall. 528; Hazleton v. 
 Union Bank, 32 Wis. 34. And that such declarations were 
 inadmissible on the theory of a conspiracy, 1 Greenl. Ev. § 111. 
 Fraud is never presumed, and a court of equity will, if the 
 facts are consistent with pure intentions, refuse to infer fraud 
 from them: Steele v. Kinhle, 3 Ala. 352. 
 
 M. M. CoTHEEN and P. A. Oeton, for respondent, as to 
 what constitutes fraud, cited Story's Eq. Jur. 184; 1 Mad. 
 Ch., 255, 256; Waltham v. Broughton, 2 Atk. 43; Alden y. 
 Gregory, 2 Eden, 285; Trenchard v. Wanley, 2 P. Wms. 
 166; Earl of Chesterfield v.Janssen, 1 Atk. 351: Broderioh 
 v. Broderiek, 1 P. Wms. 239. As to the presumption of 
 fraud from inadequacy of price, they cited Butler v. Haskell, 
 1 Dess. Oh. 697; and as to fraud by misrepresentation. Smith 
 V. Mariner, 5 Wis. 551; Kelley v. Sheldon, 8 M. 258; 1 
 Story's Eq. Jnr., § 183, note 3. Insisting that the evidence 
 showed that R. S. Law acted as agent and sustained the ver- 
 dict on that theory, they contended that a more liberal rule 
 should be applied to this case. 
 
 If an agent sells property for the principal, and the prin- 
 cipal accepts the contract, he thereby becomes answerable for 
 all the means adopted by the agent in making the contract, 
 whether known by him at the time or not. This position 
 may not stand so much on the doctrine of ratification as that 
 the principal, having received the benefit of the agent's fraud, 
 can not retain such benefit without being answerable for the 
 
64 Fraud. 
 
 fraud. He, undonbtedly, when informed of the fraud, may 
 rescind the contract, placing the other party in statu quo; but 
 after such knowledge, he becomes guilty if he refuses to make 
 restitution and insists on retaining the frnits of his agent's 
 dishonesty: I.Story's Eq. Jur. § 193; Fitssimmo-ns v. Joslin, 
 21 Yt. 140-142; Wilson v. Fuller, 4 Ad. & Ell. K S. 213; 
 Hartopp V. Hartopp, 21 Beavan, 259; Adams's Eq. 3 Am. 
 Ed. 369; Bennett v. Judson, 21 K Y. 238; Flwellv. Gham- 
 herlin, 31 Id. 619; Low v. Conn. R. E. Co., 46 K H. 284; 
 Morton v. Scull, 23 Ark. 289; Udell v. Atherton, 7 Hurl. & 
 Nor. (Eng. Ex.) 172; Sharp v. New York, 40 Barb. 256; 
 Ballston Spa Barik v. Marine Banh, 16 Wis. 133; Paine v. 
 Wilcox, Id. 202, 217; Beal v. Ins. Co., Id. 241, And thongh 
 no agency existed, yet the vendor can not retain the fruits of 
 the fraud of another. He may innocently take, but can not 
 retain after knowledge of the fraud. Huguerbin v. Baseley, 
 3 Lead. Gas. in Eq. 103-125; Whelan v. Whelan, 3 Cow. 577. 
 It matters not that other influences operated on the mind of 
 the purchaser, if the controlling inducement was the fraudu- 
 lent representations of R. S. Law; Hubbard v. Briggs, 31 N. 
 Y. 533. 
 
 S. U. PiNNET, of counsel for respondent, also filed an ,argu- 
 ment upon the facts. 
 
 Lyon, J. 
 
 The cases cited by the learned counsel for the defendant 
 abundantly demonstrate the rule of law to be, that if Richard 
 S. Law acted as the agent of the plaintiff in negotiating the 
 sale of the mortgaged premises, tlie latter is responsible for 
 all the means employed by his agent to effect the sale. If the 
 agent effected it by means of false re])resentations or fraud of 
 any other description, altliough without authority from the 
 plaintiff to do so, and although the plaintiff was entirely ig- 
 norant that he had done so, the legal status of the plaintiff is 
 precisely the same as it would have been had he made the false 
 representations or committed the fraudulent acts to the same 
 end, in person. 
 
 Again, if the plaintiff knew, when he sold the premises to 
 the defendant, that tlie latter was i'vrliif^'l t.T ;-:)ke tlip pur- 
 
Law v. Geant. 65 
 
 chase by the false representations of Kichard S. Law, and 
 failed to inform him that they were false, he is in like manner 
 responsible for the fraud altliough Richard 8. Law was not his 
 agent. But it is claimed (and the circuit court seems to have 
 adopted that view) that although E. S. Law was not the agent 
 of theplaintiff in negotiating the sale and although the plaint- 
 ift made no false representations in respect to the premises, and 
 did not know at the time of the sale that R. S. Law had done 
 so, still, on being informed nearly a year and a half after the 
 sale of the fraud committed by the latter, the plaintiif could 
 not thereafter be permitted to assert any further rights under 
 the contract of sale, and hence is not entitled to a foreclosure 
 of the mortgage in suit. Cases to support this doctrine were 
 cited which, together with many others of like character, have 
 been carefully examined and considered. But they are all cases 
 of wills or settlements, or other voluntary conveyances not 
 founded on valuable considerations, and hence are unlike the 
 present case. The correct doctrine is brieflj' and clearly stated 
 by the Vice-Chancellor, Sir Wm. Page Wood, in Soholfield v. 
 Templer, 3 ohn&.lbQ. He says: " This case is brought within' 
 the broad principle that no one can avail himself of fraud. 
 As it was held in Huguenin v. Baseley, 14 Ves. 273, and the 
 other cases cited in argument, where once a fraud has been 
 committed, not only is the person who has committed the fraud 
 precluded from deriving any benefit from it, but every other 
 person is so likewise, unless there has been some considera- 
 tion moving from himself. Where there has been consideration 
 moving from a third person, and he was ignorant of the 
 fraud, there such third person stands in the ordinary condition 
 of a purchaser without notice; but where there has been no 
 consideration moving from himself, a third person, however 
 innocent, can derive no sort of benefit or advantage from the 
 transaction." (p. 162-3.) 
 
 In the present case. there was a valuable consideration mov- 
 ing from the plaintiif, to wit, the conveyance of the mort- 
 gaged premises to the defendant: and hence, w^ithin the rules 
 above stated, the plaintiff (being himself free from fraud) can 
 not be held answerable for the fraud of R. S. Law, and the de- 
 fendant can not successfully allege such fraud as a defense to 
 the mortgage unless E. S. Law was the agent of the plaintiff, 
 VOL. "vir. — 5 
 
66 Fraud. 
 
 or, he not being snch agent, unless the plaintiff knew at the 
 time of the sale that the defendant was making the pnrchase 
 on the strength of the fraudulent representations made to him 
 by R. S. Law. 
 
 It only remains to determine what facts were proved on the 
 trial, and to apply the foregoing principles thereto. And it 
 should be here observe 1 that the action being an equitable 
 one, the verdict of the jury on the question of fact submitted 
 to them is merely advisory, and we must determine the case 
 upon the weight of evidence, as]]all other equitable actions are 
 determined, giving no more weight to the verdict than should 
 be given to a finding of the same facts by the court without 
 the intervention of a jury: Jaokman Will Case, 26 Wis. 
 104; Ghafln Will Case, 32 Id. 557. If sustained by the evi- 
 dence, the verdict is not vitiated by erroneous instructions; 
 if not so sustained, correct'instructions will not save it. Hence 
 the instructions given to the jury become quite immaterial, 
 and it is unnecessary to review them, or to make further ref- 
 erence to them. 
 
 Tlie first question of fact to be determined is, was the de- 
 fendant induced to purchase the mortgaged premises at the 
 agreed price by any false representations respecting the same 
 made to him by R. S. Law, either directly or through his friend 
 and adviser, McDougall? The defendant testified that he 
 made the pnrchase on the strength of McDougall's letter to 
 him of December 4tli, which it will be remembered was read 
 and approved by II. S. Law before it was forwarded to the de- 
 fendant. That letter contains no positive statement that R. S. 
 Law found mineral when he bored near the spring; but he told 
 McDougall that he then struck a sheet of lead, and it is very 
 evident that the letter was intended to, and did impress the de- 
 fendaut with the idea that the boring had disclosed the exist- 
 ence of mineral in the land in large quantities. Whatever am- 
 biguity there may be in the phraseology of the letter in this 
 respect, it was removed by tlie statement made by R. S. Law to 
 the defendant when he came to Wisconsin to make the pnr- 
 chase, that mineral was found by, the former in the hole which 
 he bored near the spring. We have no difficulty in finding 
 from the evidence that one of the inducements which led the 
 defendant to make the purchase was the representations of 
 
Law v. Grant, 67 
 
 « 
 
 Tl. S. Law that he had found mineral in the land which ind'. 
 cated the presence there of a valuable mine. That this repre- 
 sentation was false is not disputed. It is unnecessary to de- 
 termine whether R. S. Law made any other fraudulent repre- 
 sentations, or committed any other frauds to induce the de- 
 fendant to purchase the lamd. 
 
 The next question of fact, and the most difficult one in the 
 ease is, was E.. S. Law the agent of the plaintiff in negotiating 
 a sale of the land to the defendant? If he was, it necessarily 
 follows, as has already heeu stated, that the plaintiff is re- 
 sponsibly for the false representations made by his agent. 
 There is no positive testimony of the existence of such agency, 
 and the plaintiff in his testimony denies it fully. One Kns- 
 sell, testified thaii the plaintiff told him that if his land was 
 mining land, K. S. Law could sell it for $50 an acre. He does 
 not give the date of this conversation. The plaintiff testified 
 that the conversation took place in 1805 or 1866, and gives a 
 different version of it. He says, " I told Russell that R. S. 
 Law had said to me if I could find mineral on my land, I 
 could sell it at $50 per acre." The plaintiff also testified as 
 follows: "Not one dollar of this money (the purchase money) 
 was paid to R. S. Law, directly or indirectly. There was no 
 understanding that he was to get any of this money. I had 
 no ^knowledge that he was trying to sell the land; no knowl- 
 edge of any representations he made about it. I only know 
 that he wanted to buy the land himself." It was also proved 
 that R. S. Law paid out $250 a day or two after the sale, and 
 $40 several months thereafter, but there is no competent evi- 
 dence showing or tending to show, from what source he ob- 
 tained these sums of money. This is all of the testimony 
 bearing directly upon the question of agency, except that Dr. 
 Lee, a witness for plaintiff, testified under objection, that 
 R. S. Law told him (the plaintiff not being present) that he 
 had negotiations pending about the sale of the place, and that 
 he was to have all he could make over $14,000 or $16,000. 
 Also, that after the sale was made, he told the witness that he 
 was to have half of the excess of the purchase money over a 
 certain sum. This testimony of Dr. Lee was clearly inad- 
 missible, and must be disregarded. The rule on this subject 
 is thus stated in Mazleton v. The Union Bank of Columbus^ 
 
68 Fbaud. 
 
 32 Wis. 34: " Tlie admissions or representations of an agent, 
 while engaged in any particular transaction for his principal, 
 made in regard to such tran-saction, may be received in evi- 
 dence against the principal in a controversy coneeming such 
 transaction. But to be received, they must constitute a part 
 of the res gestm in the course of the agent's employment 
 about ithe matter in question; they must accompany the trans- 
 action or the doing. of the business, and must be within the 
 scope of the delegated authority." (p. 48.) The alleged ad- 
 missioijs to Dr. Lee were not made in the course of the em- 
 ployment (if there was an employment or agency), were not 
 part of the res gestw,. and hence can not be received in evidence. 
 But it is argued that E.. S. Law had no adequate-motive to 
 deceive the defendant and mislead him into the purchase of 
 the land at an exorbitant price,- unless he was acting in the 
 interest of tlie plaintiff, and pursuant to some understanding 
 with tlie plaintiif that he was to be paid largely out of the 
 proceeds of his fraud. If this proposition is true, it goes far 
 to establish the relation of principal and agent between the 
 plaintiff and E. S. Law. If we can find from the evidence 
 no other reasonable hypothesis of the motives which prompted 
 R. S. Law to perpetrate the frauds than that he was to profit 
 by the sale in the manner claimed, we shall probably be justi- 
 fied in finding the proposition true. But if there is any 
 other reasonable hypothesis sustained by the evidence, con- 
 sistent with the innocence of the plaintiff — one which satis- 
 factorily explains the conduct of R. S. Law without impli- 
 cating the plaintiff in his fraud by raising the presumption 
 of agency, it should be adopted. The proposition demands 
 careful consideration. To discuss it, and other questions in 
 the case, intelligently, a statement of some facts not before 
 mentioned, which we think are established by the evidence, is 
 necessary. 
 
 At the time the defendant purchased the mortgaged prom- 
 ises, and before, there was much activity, perhaps ' excite- 
 ment, in mining operations, in the mineral regions of Wis- 
 consin and elsewhere. Lands supposed to contain minerals 
 were held, and some such lands in the vicinity of the mort- 
 gaged; premises were sold, at prices which now seem exor- 
 bitant. Such activity or excitement was doubtless increased 
 
Law v. Gkant. 69 
 
 by the fact that a class of people made their appearance in the 
 mining regions, who claimed to possess the power or faculty 
 to discover the presence of mineral in the earth by means of" 
 certain meiital or physical impressions or phenomena pro- 
 duced upon them by passing* over the place where the min- 
 eral is deposited. A notable member of this class was Fox,- 
 who is mentioned in the letter from McDougall to the defend- 
 ant. Doubtless very many persons honestly believed that he 
 possessed this faculty or power to a remarkable degree. To 
 such persons, his assertions that mineral products existed in 
 certain specified places, imported absolute verity. We see no 
 reason to doubt that R. S. Law was one of these. It is in 
 proof that he is a strong believer in spiritualism, and there 
 was much in his conduct to show that at the time of the sale 
 he fully believed that Fox possessed this power to discover the 
 location of mineral deposits witli unerring accuracy. It is 
 very appareilt that the defendant wds strongly indoctrinated 
 in the same belief. Substantially (although cautiously and 
 with qnalificationS'), he admits it in his testimony. Yet there 
 is sufficient evidence to satisfy us that his belief in the exist- 
 ence of such faculty or power, and that Fox and others pos- 
 sessed it, was strong enough to control his actions, or at least 
 to influence them to a considerable extent. If such belief did 
 not blind his judgment, it certainly greatly impaired his pru- 
 dence and discretion. McDougall also, to a greater or less 
 extent, entertained the same belief. 
 
 Before the plaintiff knew the defendant or had ever heard 
 of him. Fox went upon the mortgaged premises and pro- 
 nounced them rich in mineral deposits. He pointed out to 
 the plaintiff the precise location of those deposits. Fox and 
 K. S. Law (and perhaps Storey) thereupon proposed to buy the 
 land on credit, and to pay therefor $25,000. The plaintiff 
 declined the offer, without naming a price for the land. A 
 day or two afterward ' he offered to sell to R. S. Law for $100 
 per acre, $15,000 of the purchase money to be paid at the 
 time of the sale. R. S. Law was unable to comply with the 
 terms, and thereupon opened negotiations with the defendant, 
 through McDougall, to become interested with him and Mc- 
 Dougall in making the purchase. On his way to "Wisconsin 
 to conclude the purchase, the defendant passed through New 
 
70, Fkaud. 
 
 Orleans, and tliere consulted a woman who professed to be a 
 clairvoyant (and whom ho had consulted on other subjects), 
 • concerning his proposed purchase. This woman seems to 
 have favored the purcliaso of tlie, Law farm rather than tlie 
 $44,000 tract mentioned in McDougall's letter. In his tes- 
 timony', however, the defendant disclaims that he was] influ- 
 enced by what the woman said to him. 
 
 The defendant reached ShuUsburg, in the vicinity of the 
 mortgaged premises, on Saturday', December 21, 1867, and 
 found there R S. Law and a woman from Chicago, named 
 Allen, who, the defendant says, was a medium. It is proba- 
 ble that K. S. Law procured the attendance of tliis woman on 
 that occasion. A number of persons, among wliom were the 
 parties R. S. Law and Mrs. Allen, went upon the land. Mrs. 
 Allen verified the statements of Fox by walking over the land. 
 In answer to a question by the defendant, when the parties 
 were near the hole which had been bored by R. S. Law near 
 the spring, the plaintiff told him that no mineral was found 
 in that hole. This is proved by the testimony of several wit- 
 nesses, although the defendant denies an_y recollection of such 
 conversation. Indeed, so thoroughly impressed was the de- 
 fendant with the idea derived from McDaugall's letter (but 
 , not from anything said by the plaintiff) that the plaintiff de- 
 sired to withdraw his offer to sell the land at $100 per acre, 
 that he would not (as he testified) have paid any attention to 
 anv thing the plaintiff might have said against the value of 
 the land. He subsequently testified, however, that had he 
 heard the plaintiff say that no mineral was found in the hole, 
 he would have given some attention to the statement. The 
 defendant avoided conversation with the plaintiff concerning 
 the land; he did not exact or call for any statements from the 
 plaintiff relative to it; neither did he require the plaintiff to 
 verify the representations made by R. S. Law, or inform him 
 what those representations were. Referring to a time when 
 the negotiations were still pending, the plaintiff testified as 
 follows: " Grant said he understood my price was $100 per 
 acre, and remarked that was a high price for land not proved 
 to be mineral land. I said it was high, but it had other qual- 
 ities; I had proved it was a good stock farm. "Water power 
 on it, and stone quarry. I said there was a possibility of min- 
 
Law v. Grant. 71 
 
 eral, from iriy ideas of mineral in tliat section of tlie country. 
 I said I would not sell it for mineral land, not having proved 
 it, and not being a miner. He said it made no difference 
 about my not having proved it; that he believed lie knew 
 more about the land than I did. Said he bought the laud on 
 his own judgment." Tlie above testimony, or the .more ma- 
 terial portion of it, is corroborated by other witnesses, and 
 must be taken to be true, notwithstanding the denial tliereof 
 by the defendant. The sale was completed, the deed, notes 
 .and mortgage executed, and the $15,000 paid, on the same 
 day that the above transactions occurred. 
 
 Subsequently, R S. Law went to Chicago and assisted the 
 defendant to select a pump to be used in mining on the land. 
 Some time afterward (but at what particular time does not 
 appear), McDougall informed the defendant that because of 
 losses in oil speculations, he would be unable to take an in- 
 terest in the mortgaged premises. The defendant replied 
 that if McDougall could not go into the enterprise E. S. Law 
 could not. McDougall communicated such reply to the lat- 
 ter, who expressed his regret, but said there were other 
 chances as good, and never thereafter applied to the defend- 
 ant for an interest in the premises. 
 
 It is believed that the foregoing are all of the facts necessary 
 to be considered to enable us to determine whether there is 
 any reasonable hypothesis consistent with the innocence of 
 the plaintiff of knowledge of the frauds perpetrated by R. S. 
 Law on the defendant, or of such participation in the acts of 
 K. S. Law or connection therewith as will establish the re- 
 lation of principal and agent between them. 
 
 Aftermost careful consideration of the evidence, we are 
 impelled to the conclusion that such ahj-pothesis may reason- 
 ably be predicated upon it. We think there are as good rea- 
 sons for believing that R. S. Law perpetrated the fraud upon 
 the defendant for his own purposes, entirely irrespective of 
 the plaintiff, as that he did bo pursuant to an understanding 
 with, and to advance the interests of, the plaintiff'. It is a 
 reasonable theory of the case, that R. S. Law really believed 
 that the land contained rich deposits of mineral; that he was 
 anxious to obtain an interest in it, and that his frauds upon 
 the defendant were for the purpose of obtaining such interest 
 
72 FiiAUD. 
 
 by inducing the defendant to become tlie pni-cliaser, and not 
 because he had any agi-eeinent with the plaintiff to share in 
 tlie proceeds of tlie sale. 
 
 The faith of tlie defendant and R. S. Law in the powers of 
 Fox, Mrs. Allen, and others of the same class, niiiy reasonably 
 be considered the key to the whole transaction. It may ex- 
 plain the conduct of 11. S. Law, and the marvelous credulity 
 and want of discretion of the defendant, without impeaching 
 the honesty of the plaintiff'.' It is our unmistakable duty to 
 accept the explanation, because it is reasonable and because it 
 is in favor of innocence. We conclude that tiie proofs fail to 
 show that R. S. Law acted as the agent of the plaintiff in 
 negotiating the sale of the mortgaged premises to the de>- 
 fend ant. 
 
 The remaining question to be determined is, whether the 
 plaintiff, at the time of tlie sale, knew that the defendant was 
 induced to purchase the land by the false repi'esentations of 
 E. S. Law. This question requires no extended discussion. 
 Much that was said in the consideration of the question of 
 agency is applicable to it, and need not be repeated. It is 
 sufficient to say here that the denial by the plaintiff, in his 
 testimony, of any such knowledge or notice, has not been suc- 
 cessfully controverted by the defendant. Aside from tlie 
 mere fact that the plaintiff demanded and received what now 
 seems to have been an exorbitant price for his land, the case 
 seems entirely destitute of evidence tendinis, even remotely, 
 to prove that the plaintiff then had any knowledge or sus- 
 picion that R. S. Law had perpetrated a fraud of any kind 
 npon the defendant. Under all of the circumstances of tlie 
 case, we are not authorized to reject the positive denial of the 
 plaintiff. 
 
 A few observations, not pertinent to the discussion of the 
 questions of fact above considered, but relating rather to the 
 personal connection of the plaintiff with the contract of sale, 
 will conclude this opinion. The plaintiff doubtless tliontWit 
 thatR. S. Law and the defendant had extravagant notions of 
 the value of his land; he probably knew that their valuation 
 was based on their belief in the power of Fox and others to 
 detect the location of mineral deposits; and he fixed a hio-h 
 valuation on his land in view of those facts. But it does not 
 
Law v. Gkant. 73 
 
 appear that he did any act or spoke any word to canse or 
 strengthen such opinion'. On the contrary, he frankly told 
 the defendant that no mineral had been found in tiie land, ex- 
 cept a little piece found in the spring (and the proof is that 
 some mineral was found in the spring), and he expressly de- 
 clined to sell the land as mineral land. 
 
 It frequently happens that the market values of stocks and 
 other kinds of property are temporarily inflated, by means of 
 the grossest frauds, far above intrinsic values. Yet no one 
 will claim that contracts for the sale and purchase thereof at 
 such inflated prices, by parties not concerned in the fraud, can 
 be successfully impeached. This seems to be a case within 
 the same principle. The defendant was made to believe that 
 he knew the value of the land better than did tiie owner. 
 He acted upon that belief, and bought the land at an exorbi- 
 tant price. His opinion was based partly upon false asser- 
 tions of fact made by R. S. Law, and for which the plaintiff 
 was in no manner responsible, but mainly, in our opinion, 
 upon his absurd belief in the powers of Fox. Neither was 
 the plaintiff responsible for that belief; but sold his land for 
 the price the defendant was willing to pay for it. It turns 
 out that the belief of defendant is unsound; that he spent his 
 money and incurred obligations upon the strength of a false 
 theory or doctrine, being incited thereto by the false state- 
 ments before mentioned. On what principle can a court of 
 equity relieve him from the consequences of his gross folly 
 and want of common discretion and prudence? The question 
 has already been answered. 
 
 In order to entitle himself to relief, we have seen that he 
 ' must connect the plaintiff with the alleged fraud by showing 
 that it was perpetrated by tlie plaintiff or his agent, or, if by 
 a person not the agent of the plaintiff, that the latter had 
 notice of the fraud at the time of the sale. The defendant 
 lias failed to prove either of these propositions, and, however 
 reluctant we may be to do so, we must hold that he has failed 
 to establish his counterclaim. 
 
 A new trial will be of no service to the defendant, unless he 
 can produce additional evidence of agency or notice of the 
 fraud, as the case may be. If he satisfies the circuit court, 
 by affidavit or other competent proof, that on another trial he 
 
74 Featjd. 
 
 will be able to prove a defense to the action, we think tlmt 
 court should grant a new trial. Otherwise, the plaintiflt' 
 should have the usual judf);ment of foreclosure and sale. 
 
 By the Court. — The judgment of the circuit court is re- 
 versed, and the cause remanded for further proceedings iu 
 accordance with this opinion. 
 
 Morgan v. Skiddy et al. 
 
 (62 New York, 319. Court of Appeals, 1875.) 
 
 ' Eesponsibility for prospectus. A director of a corpomtion who know- 
 ingly issues or sanctions the circulation of a prospectus containing m i- 
 terial misstatements is liable in damag-es to a party induced to purchase 
 stock by the contents of such prospectus. 
 
 Sole iiiducemont. The false statements relied on to sustain the action need 
 not have been the sole inducement to the purchase. 
 
 Lode extension. The prospectus represented the Bates lode as parcel of 
 the property of the company, when in fact the company only held a 
 piece of property located as an extension of the Bates lode. Held, a 
 material misrepresentation. 
 
 2 Fluctuations of mining property, considered with reference to dispropor- 
 tion between original price of the mines and the subsequent valuation 
 for stocking purposes. 
 
 Use of name of trustee. The mere allowance of the use of a party's name 
 as trustee of a company whose sto:k afterward proves to be wortUlcss, 
 is not sufficient to maintain an action charging personal liability, with- 
 out proof of knowledge of such fact or of any false representations. 
 
 Appeal from judgment of the General Term of tlie 'Supe- 
 rior Court of tlie City of New York, affirming a judgment iii 
 i'avor of the defendants, entered upon an order dismissing 
 plaintiff's complaint on trial. (Reported below, 4 J. & S. 
 152.) 
 
 This was an action for fraud. Tlie complaint, in substance, 
 alleged that defendants, designing and intending to cheat and 
 defraud plaintiff and others, caused a certificate to be filed of 
 the organization of a mining corporation called the Central 
 Mining Company of Colorado, with a nominal capital of 
 11,000,000, the certificate stating that " the said capital is not 
 
 ' Clarke v. Dickson, 6 M. R. 523. 
 
 'Langdon v. Fogg, 18 Fed. 5; Lake Superior Co. v. Drexel, 90 N. Y. 87. 
 
MoEGAN V. Skidd Y. 75 
 
 to be owned or possessed by it ia money, but is to consist of 
 and is to be represented by the mines and other property 
 necessary for the business of said company, to ^e purchased 
 by the trustees thereof, and to be paid for by tlie issue of 
 stock of said company," and did also make, issue and publisli, 
 false and deceptive pamphlets and prospectuses containing 
 various false and fraudulent statements of facts (which were 
 specifically set forth and which appear in the opinion) wliich 
 they caused to be exhibited to plaintiff, well knowing them 
 to be false, whereby plaintiff, relying thereon, was induced 
 to make a purchase of the stock of said company, etc. 
 
 The facts appearing on the trial are sufficiently set forth in 
 the opinion. 
 
 Erastus Cooke, for the appellant. It is no answer to this 
 action to say that plaintiffs purchase was not made from the 
 defendants: Ghp,ster v. Dickerson, 52 Barb. 349, 358; Shot- 
 well V. Mali, 38 Id. 445. Defendants are responsible for the 
 pamphlets and map: Arent v. Squire, 1 Daly, 347; Scott v. 
 Depeyster, 1 Ed. Ch. 513, 542, 543; Rartwell v. Root, 19 
 Johns. 345; Kerr on Fraud and Mistake, 140, 141; Smith v. 
 Richards, 13 Pet. 26; Elwell v. Dodge, 33 Barb. 336; How- 
 ard v. Hatch, 29 Id. 304; Jackson v. Campbell, 5 Wend. 575; 
 Chester v. Dicherson, 52 Barb. 349; Sage v. Slierman, 2 
 Comst. 417; Sweet v. Bradley, 24 Barb. 549; Hawkins v. Ap- 
 pleby, 18 .Wend. 185, 186; Coster v. Bettner, 1 Bosw. 490; 
 Townsend v. Bogdrt, 11 Abb. 362; Bennett v. Judson, 21 N. 
 Y. 238; Craig v. Ward, 36 Barb. 385; affirmed 3 Keyes, 387; 
 Story on Sales, § 165; Ainslie v. Medh/cott, 9 Yes. 21; 1 Sto- 
 ry's Eq. § 193; Bennett v. Judson, 21 1^. T. 241; Wakeman 
 v. Bailey, 51 Id. 34; Meyer v. Amidon, 45 Id. 169; Oher- 
 lander v. Speiss, Id. 175; Hubiell v. Meigs, 50 Id. 480; 
 Ma^sh V. Falker, 40 Id. 566; Fisher v. Mellen, 103 Mass. 503. 
 
 John S. Woodwaed, William W. MoFarland, James W. 
 Gbraed and Henry Woodruff, for the respondents. To 
 entitle plaintiff to go to the jury, there must have been evi- 
 dence warranting them to find that guilty knowledge on the 
 part of the defendants existed: Marsh y. Falker, 40 N. Y. 
 
76 Feaud. 
 
 562; Chester v. Oomstoch, Id. 576; Lefler v. Field, 52 Id. 
 (>21;iMeyer v. Amidon, 45 Id. 169; Oberlander v. SpeisSi Id. 
 '175; Holdndge v. Wehh, 64 Barb. 9; Huhbell v. Meigs, 50 
 N". Y. 480; Wakeman v. Dalley, 51 Id. 27; Clarke v. Dick- 
 son, 6 G. B. (N. S.), 453; Huhbard v. 5f%s, 31 N. Y. 518, 
 529; Gerhard v. ^afes, 22 L. J. (Q. B.), 369; Runtlngford 
 V. Mussly, 1 F. & F. 690. The appearance of the name of 
 anyone of the defendants upon the prospectus was not suffi- 
 cient to charge him, even if it appeared that he knew his name 
 was there: Wakeinan v. Dalley, 44 Barb. 498; 51 N. Y. 
 27; Cullen v. Thompson, 4 Mac. Q. H. of L. Gas. 441; 
 Moore v. Burke, 1 F. & F. 258, 273, 277, 280; Clarke v. 
 Diclcson, 6 G. B. (N. S.), 453. If the i.-£U) of tlie stock 
 was irregular in form, such irregularity could only create a 
 liability in favor of creditors of the corporation: Boynton v. 
 Hatch, 47 N. Y. "225. If tlie representations in the pros- 
 pectus were false and fraudulent, tliey could form no ground 
 of action unless made by one of \\\& defendants to plaintiff 
 and relied upon by him when the purchase was made: Wake- 
 man V. Dalley, 51 N. Y. 27; Arthur v, Oriswold^ 55 Id. 400. 
 
 Andbkws, J. 
 
 In determining whether tlie trial court correctly granted a 
 nonsuit, the plaintiff is entitled to the benefit of every ini'er- 
 ence from the evidence in support of his case, which the jury, 
 if the case had been submitted to them, would have been en- 
 titled to draw. The general facts are, that a corporation 
 called "The Gentral Mining Gompany of Colorado" was 
 formed on the 21st day of December, 1863, by the filing of 
 a certificate under the general law of this State autliorizing 
 the formation of corpoi-ations for mining and other purposes. 
 It stated that the capital stock should be $1,000,000, di- 
 vided into 60,000 shares of twenty dollars each, but tliat it 
 was not to consist of money; " but it is to be represented by 
 the mines and other property necessary for the business of the 
 company,: to be purchased by the trustees thereof, and to be 
 paid for by the issue of stock of the company." The objects 
 of the company were declared to be " the mining and separat- 
 ing of gold and other ores," and the defendants, except Ash- 
 
Morgan v. Skiddy. 77 
 
 more, were named as trustees for the first year. On the 20t]i 
 day of January, 1864, a meeting of the board of trustees was 
 held in the city of New York; and after it was organized by 
 the appointment of a chairman and secretary, the defendant 
 Gaylord, as the minutes state, "offered to the company a 
 property in Colorado, of which a particular description was 
 presented, to be paid for by the issue of 50,000 shares of tiie 
 company's stock; " and after an examination of the papers, 
 a motion was carried to purchase the property upon the terms 
 proposed by Mr. Gaylord. The defendant McYickar was 
 elected president of the company. A code of by-laws was 
 adopted, and tlie meeting adjourned; and this, so far as tlie 
 case shows, was the only meeting of the board of trustees 
 which was ever held. On the twenty-second of January, the 
 defendant Gaylord, by deed, reciting a money consideration of 
 ten dollars, and the receipt of 50,000 shares of the stock of 
 the company, conveyed to the company two pieces of land in 
 Gilpin county, Colonslo, one of which is described as follows: 
 " Fourteen hundred feet on the Bates extension quartz lode, 
 being and including claims numbers nine, ten, eleven, twelve, 
 thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nine- 
 teen, twenty, twenty-one and twenty-two, northeast from the 
 discovery of said'Bates extension." 
 
 Gajdord derived title to the property conveyed to the com- 
 pany by two deeds, one from Theodore H. Becker, embracing 
 the property above described, dated May 5, 1860 (but in fact 
 executed in 1863), in which the consideration was stated to 
 be $30,000; and one from Harvey L. Graham, embracing the 
 other property conveyed to the company, dated January ]2, 
 1864, reciting a consideration of $5,000. The actual consid- 
 eration paid by Gaylord for both pieces of property did not 
 exceed $10,000. The whole stock of the company (50,000 
 shares) was issued to Gaylord, January 21, 1864. On tlie 
 same day he transferred to the company 2,500 shares of the 
 stock, and to H. S. Fearing, one of the firm of Dalton & Fear- 
 ing, stock brokers, 10,000 shares in trust, but the persons 
 beneficially interested in tlie trust are not^ named in the 
 transfer. 
 
 The next step was the preparation of a prospectus by the 
 defendant Ashmore, upon the suggestion of the defendants 
 
78 Fbaud. 
 
 McYickar and Gaylord. It was promptly prepared, and waa 
 printed on or before tlie 23d day of January, 1864. The 
 name of the company and of the trustees appeared upon the 
 title-page, and it commenced by stating the fact of the organ- 
 ization of the company with 50,000 shares of stock, " and 
 with a working capital of $50,000, viz., $25,000 in cash and 
 $25,000 in stock." The prospectus then sets forth as follows: 
 " The objects of the company are to purchase and work two 
 properties in Colorado Territory, hereinafter described, viz.: 
 One property on North Clear Creek, as shown by the accom- 
 panying maps, at or near Black Hawk Point in Gregory Re- 
 gion, Gilpin county, Colorado, embracing l,lftO feet on the 
 celebrated Bates lode; at this point the vein has already been 
 explored by seven shafts, sunk at intervals of about fifty feet, 
 and varying in depth from twenty to forty feet, exposing a 
 vein varying from one and a half to four feet in width. Con- 
 siderable quantities of ore have been taken from these 6pen- 
 ings, yielding gold equal in quantity to any yet mined from 
 this old and well known lode;" and again: "The Bates lode 
 is one of the oldest discoveries in Colorado, and has been 
 profitably worked by many shafts, in some instances 300 feet 
 in depth." The prospectus contains letters from various in- 
 dividuals giving most encouraging accounts of tlie Bates lode. 
 One of them, purporting to be written to Gaylord by one B. 
 Y, Dalton, states that the writer has been in the mining region 
 of Colorado ever since the discovery of gold in that Territory, 
 and that the Bates lode "has proved very rich, more so than 
 any other lode in the mountain." Another writes, that from 
 the working of the claims by a Mr. Baxter on this lode with 
 a small force, his "net profit is $100 a day," and that "his 
 property on this lode, which two months since was only valued 
 at $40,000, he now holds three fourths of it at $100,000." 
 The result of an assay of ore taken from this lode is given, 
 showing it to be very rich in gold; and the prospectus, after 
 describing the other property of the company, concludes: 
 "From the foregoing statements, and from the developments 
 on our 1,^00 feet on the Bates lode, we are justified in saying 
 our supply of ore will be inexhaustible, it having been proved 
 by the experience of other companies, that the deeper the 
 workings the richer and more productive the veins become." 
 
Morgan v. Skiddy. 79 
 
 The plalntiif was the first purchaser of tlie stock of the 
 company. He received a letter from Mr. Dalton, of the firm 
 of Dalton & Fearing, a trustee of the company, " calling his 
 attention to the stock, and recommending it"; and thereupon, 
 on the twenty-third of January, two days after the organiza- 
 tion of the board of trustees, he went to the office of Dalton & 
 Fearing and was shown the prospectus and map. The plaint- 
 ifi", in his testimony, says: " One of the prospectuses was hand, 
 ed to me; I looked at it; I told Mr. Dalton I knew nothing at 
 all about it. He says, ' It is all right,' and upon that I gave 
 him my check for $5,000, in payment for 500 shares at ten 
 dollars a share." Again he says, on cross-examination: 
 " Mr. Dalton said to me ' It is all right,' and I gave him my 
 check. Twas handed that prospectus to read, and my at- 
 tention was called to the map that hung on the wall; I read 
 the prospectus, I ran my eye over it, and afterward took it 
 home with me, and read it over afterward; I looked through 
 it casually before I paid; I can not tell whether Hooked at the 
 map before I completed the purchase of the stock, it was so 
 long ago; I read the prospectus before I bought the stock; I 
 did not read every word, though I looked more particularly 
 to the property and the names that were in the company. I 
 thought that was a sufficient guarantee of its being worth 
 something. I did not think the men whose names I saw 
 would be connected with a fraud." 
 
 The sale to the plaintiff was followed by sales througli 
 Dalton & Fearing of large amounts of stock of the company 
 at ten dollars and upwards a sliare; and there was paid to 
 Dalton and McYickar, on account of such sales, more than 
 $200,000. To whom the stock sold by Dalton & Fearing be- 
 longed, does not very distinctly appear; but when sales were 
 made Dalton and MoVickar furnished the certificates and re- 
 ceived the proceeds. The corporate enterprise proved to be a 
 failure. Something was attempted in the way of working the 
 mine, but after a few months the business was found unprof- 
 itable and was suspended, and has never been resumed. The 
 representations in the prospectus, on investigation, proved to 
 be false in several particulars. Instead of the company hav- 
 ing 1,400 feet on the celebrated '• Bates lode," as therein 
 stated, it possessed 1,400 feet on the " Bates extension quartz 
 
80 Fkaud. 
 
 lode," wliicli was located 800 or 1,000 feet from the spur on 
 wliicli tJie " Bates lode " was, and separated therefrom by an 
 intervening ravine, or gulch, and had not been proved to be 
 tl\e true extension of tliat vein. Mr. Bates, the discoverer of 
 the " Bites lode," testified that there were three or four veins 
 claimed by different owners to be "Bates extensions," and 
 that, to his knowledge, the true continuation or extension of 
 that vein had not been ascertained. Tiie representations in 
 the prospectus as to the exploration made on the land of the 
 company were false. But two or three shafts had been sunk 
 upon this property. Very little work had been done upon it, 
 and the presence of valuable ores in any considerable quan- 
 tities had not been discovered. The company owned no prop- 
 erty on the " Bates lode," and the testimonials in the pros- 
 pectus respecting it were misleading and deceptive; tiiey had 
 no reference to the property actually owned by the company, al- 
 though in connection with the false description they appeared 
 to relate to it, and rriust have been so understood by persons 
 reading the prospectus who had no other knowledge upon the 
 subject. The false statement in the prospectus related to an 
 existing fact which materially aifected the value of the shares; 
 it was prepared for the purpose of circulation and to induce 
 investments in the stock of the company. If the plaintiff pur- 
 chased his stock relying upon the truth of the prospectus, he 
 has a right of action for deceit against the persons, who, with 
 knowledge of the fraud and with intent to deceive, put it in 
 circulation. The representation was made to each person 
 comprehended within theclass of persons who were designed to 
 be influenced by the prospectus; and when a prospectus of this 
 cliaracter has been issued no other relation or privity be- 
 tween the parties need be shown, except that created by the 
 wrongful and fraudulent act of the defendants in issuing Oj. 
 circulating the prospectus, and the resulting injury to the 
 plaintiff: UlarJee v. Dickson, 6 0. B. (N. 8.), 453; Central 
 Railroad Co. v. Kish, Law Eop. (2 Eng. and Irish App.), 
 100. 
 
 It is hardly necessary to say that a director of a company 
 who knowingly issues or sanctions the circulation of a false 
 prospectus, containing nntrne statements of material facts, the 
 natural tendency of which is to mislead and deceive the com- 
 
MoKGAN V. Skiddy. 81 
 
 ninnity and to induce the public to purchase its stock, is 
 responsible to those who are injured therebj'. Mere exagger- 
 ated statements of the prospectus of a new enterprise will not 
 subject those who make them to liability; but, as was said by 
 the chancellor in Central Railroad Company v. KisU, "no ma- 
 terial misstatement or concealment of any material fact ought 
 to b^ permitted." The directors of a company are supposed 
 to know the facts touching its condition and property, and their 
 statements in respect to its affairs naturally attract public 
 confidence. If they fraudulently unite in an attempt to deceive 
 the public, and by false statements of facts to give credit and 
 currency to its stock, it is but simple justice that they shall 
 answer to those who have been deluded into giving confidence 
 to them. 
 
 "We agree with the General Term in their opinion that no 
 cause of action was established against the defendants, Trav- 
 ers, Skiddy and Jerome. Travers was elected one of the trust- 
 ees, but he never accepted the appointment or acted as trustee; 
 and so far as appears, was in no way connected with the organ- 
 ization or management of the company. The defendants' 
 Skiddy and Jerome, were present at the organization of the 
 board of trustees and participated in the action which re- 
 sulted in the purchase of the Colorado lands from the defend- 
 ant, Gaylord; their interest in the company seemed to be nom- 
 inal merely. They each held five shares of the stock, and so 
 far as this case shows, they never took any part in the man- 
 agement or business of the company after the occasion men- 
 tioned, and neither dealt in the stock or received any of the 
 proceeds from its sale; and they are not shown to have known 
 of the existence of the prospectus. There is, we think, no 
 ground upon the evidence for iniputing ' to them any actual 
 fraud in the transaction. They assented to the purchase 
 from Gaylord and to give him in exchange for the land, the 
 whole of the, stock of the company. But it does not appear 
 that they knew the value of the property. The deeds to him 
 expressed a consideration of but $30,000; but one of them, al- 
 though actually executed in 1863 was dated in 1860, and in 
 view of the extreme fluctuations in value of mining property 
 between those years, it can not be assumed without proof that 
 they knew that the real value of the property in 1864 was so 
 VOL. VII.— 6 
 
82 ^ Feaud. 
 
 grossly disproportionate as it was to the nominal amount of 
 the stock given in exchange for it. Tiie enterprise was specu- 
 lative, as all parties must have understood. The plaintiff, who 
 purchased tlie stock at ten dollars a share, could not have 
 supposed that the property of the company was equal in value 
 to the par value of the stock. It may justly be said that the 
 two trustees mentioned allowed their names and credit to be 
 used to float what afterward turned out to be worthless stock; 
 but this alone does not constitute actionable fraud. The de- 
 fendant McYickar, stands in a different position. He was 
 the originator and promoter of the company. The evidence 
 warrants the inference that he had examined the title deeds 
 held by Gaylord. lie suggested the preparation of the pros- 
 pectus and made the map attached to it. As soon as the 
 prospectus was issued, he became an active seller of the stock, 
 and received large suras as the proceeds. These facts unex- 
 plained would, we think, have justified the jury in finding that 
 he knew the true description of the property conveyed to the 
 company by Gaylord, and that he sanctioned the use and cir- 
 culation of the prospectus with the false description contained 
 in it. The fraudulent conduct of Gaylord was clearlj' estab- 
 lished, and we think the evidence was also sufficient to require 
 the question of fraud on the part of the defendant Ashmore, 
 to have been submitted to the jury. 
 
 The other fact necessary to be established by the plaintiff 
 in order to justify a recovery, viz., that he relied upon and' 
 was deceived by the false description of the property in the 
 prospectus in purchasing the stock, is by no means clearly es- 
 tablished. That lie trusted to a considerable extent to the 
 judgment of Dalton, and relied also upon the character of tiie 
 men named as trustees, can not be doubted. But we think 
 there is some evidence that he relied also upon tlie statements 
 in the prospectus. lie looked over the prospectus before pur- 
 chasing, and " read it." Ho looked, lie says, " more particu- 
 larly to the property and the "names that were in the com- 
 pany." lie said to Dalton, after " looking" at the prospectus, 
 " I know nothing at all about it," and Dalton said, " It is all 
 right," and upon that I gave him a check for $5,000. It was 
 for the jury to say whether he did not, to some extent, rely 
 upon the description of the property in the prospectus in con- 
 
Tuck v. Downing. 83 
 
 nection with the confirmation of its truth by Dalton, and the 
 other circumstanees proved. It is sufficient, in order tp main- 
 tain the action, that the false statement was one, although it 
 may aot have been the sole inducement to the purchase: 
 Clarke v. Dickson, swpra. 
 
 I am of opinion that the case should have been submitted 
 to the jury as to the defendants, McYickar, Gaylord and Ash- 
 more, and that the judgment as to them should be reversed. 
 It is only intended to decide, in this case, that upon the case 
 made by the plaintiff the defendants named should have been 
 put to their defense, and that the jury was the proper 
 tribunal to pass upon the facts tending to establish their lia- 
 bility. 
 
 All concur, except Ohueoh, Ch. J., not voting. 
 
 Judgment affirmed as to defendants, Skiddy, Travers and 
 Jerome; and as to defendants, McVickar, Gaylord and Ash- 
 more, reversed and new trial granted. 
 
 Tuck v. Downing. 
 
 (76 Illinois, 71. Supreme Court, 1875.) 
 
 Misrepresentations immaterial or not relied on. To justify a court of 
 equity in rescinding a sale, it is not only necessary to establish the fact 
 of misrepresentations by clear proof, but they must be upon a material 
 matter; if upon an immaterial thrng, or if the other party did not trust 
 to it, or upon a matter of opinion or fact equally open to the inquiries 
 of both parties, in regard to which neither could be presumed to trust 
 the other, there is no reason for equity to grant relief on the ground of 
 fraud. 
 
 Latitude allowed vendor, A vendor trying to sell his own property has a 
 right to " puff" it in the most extravagant terms, the other party being 
 at full liberty to exercise his own judgment about it. 
 
 ' Misrepresentation as to price paid. The vendor of a mine represented 
 that he had paid, or was under obligations to pay, $40,000 for it. At 
 the same time he exhibited a deed to himself, expressing a considera- 
 tion of but 19,000. Held, 1. That a false statement of the price paid 
 is not of itself a material representation. 2. That in connection with 
 the exhibition of the deed it could not have misled. 
 
 ^Holbrook v. Connor, 60 Me. 578; 11 Am. R. 212 and note. 
 
84 Fiijvtid. 
 
 Pnrcliaso after inspection. On a bill to set asMe a purchase of tin interest 
 in a mine in Utah, sold in Pennsylvania, on the ground of fraudulent 
 misrepresentations as to the quality and prospects of the mine, it ap- 
 peared that on the representation of the vendor a committee had been 
 selected, who had personally examined the mine, on the report of wh'ch 
 committee the sale was consummated. Held, that any oxtravajjant 
 representations of the vendor could only be regarded as the expression 
 of an opinion about a matter of which the committee could judge for 
 themselves, and that they formed no ground for setting aside the con- 
 tract. 
 
 ' Matters of opinion. Where the representations complained of are neces- 
 sarily mere matters of opinion as to the future prospects of a mine, 
 the rule, caveat emptor, applies, and the sale will not be set aside 
 whether the vendee has or has not availed himself of an opportunity to 
 examine the premises. 
 
 The Icnowled^e of the agent of the vendee is as binding upon him as his 
 own knowledge. 
 
 Variance. A party can not make out one case by his bill and another by hie 
 proof; they must correspond. 
 
 Weifflit of evidence. The evidence of persons not familiar with mines 
 contrasted with that of experienced miners. 
 
 Co-tenants not partners. A mere co-tenancy does not establish apartner- 
 ship so as to establish a relation of trust and confidence. 
 
 The " prospect," the inducement of pnrcliase. Mines are bought and 
 sold on the " prospect," not on the warranty. 
 
 Appeal from the Circuit Court of Cooli County, the Hon. 
 Eeastus S. Williams, Judge, presiding. 
 
 This was a bill of complaint in the Circuit Court of Cook 
 County, exhibited by Jerome F. Downing against J. H. L. 
 Tuck, George A. Childa and Octavius Prince, the scope of 
 which was to procure a cancellation of a promissory note ex- 
 ecuted by complainant to Tuck for five thousand dollars, and 
 which Tuck had placed in the hands of Childs & Prince, bank- 
 ers at Chicago, as collateral for a loan by them to Tuck of 
 seven hundred dollars. The principal allegations in the bill 
 of complaint are, that Tuck, in July, 1873, came to Erie, 
 Pennsylvania, with Lucian P. Sanger, claiming to come from 
 Salt Lake City, in the Territory of Utah; that after they had 
 been in Erie a short time, sojourning at the house of Irving 
 Camp, then a resident, they tried to form a company to purcliase 
 a two thirds interest in pretended mines, veins and lodes in the 
 West Mountain Mining District, in Salt Lake county, Utah, 
 
 ' Gcrdon v. Butler, 105 U. S. 553. 
 
Tuck v. Downing. 85 
 
 and to facilitate their purchase, Sanger and Tuck represented 
 to complainant and to others, that ona Scribner, of Salt 
 Lake City, owned an interest of two thirds in two min- 
 eral veins or lodes, known as "Aqua Frio" and "Black 
 Metallic" lodes, containing six hundred feet in each, and sit. 
 uated in the " West Mountain Mining District" in Salt Lake 
 county, Utah, and certain other veins known as "Green Yan- 
 kee," containing thirteen hundred feet adjoining the north- 
 east end of the " Black Metallic Yein," which interests Scrib. 
 ner desired to sell, and offered them for sale for forty thousand 
 dollars; that Tuck and Sanger represented that Sanger had a 
 deed from Scribner of this two thirds interest, which Scribner 
 had executed to enable Sanger to give deeds to parties who 
 might purchase, to save the trouble of procuring deeds from 
 Salt Lake to be executed by Scribner. 
 
 Tuck, in talking very freely about the mines, and in his en- 
 deavors to sell and to induce complainant and others to form 
 a company, to purchase and work these niines, represented to 
 complainant and others that he himself had no interest in 
 these mines, and that his only object in coming with Sanger 
 was as a professional attendant and a practical and experi- 
 mental geologist, and as one well acquainted with mines and 
 mining in the Territories, and therefore could speak more con- 
 fidently as to these mines, and that he came to explain the 
 geological features of the country and the character of the 
 mines; that they represented to complainant and others that 
 the mines were of great value, yielding rich copper ore, with 
 more or less gold; that Sanger had purchased from Scribner 
 one third interest therein, which he bought to hold as an in- 
 vestment, and that Scribner would not sell his remaining 
 interest for less than forty thousand dollars; that on this visit 
 nothing was effected, and the adventurers left Erie; but a 
 short time afterward Tuck returned and again endeavored 
 to induce complainant and others to purchase this two thirds 
 interest, he, Tuck, having then and there a deed purporting 
 to have been executed by Scribner to him for this two thirds 
 interest, he representing the deed was executed to liim on the 
 condition he should go East and dispose of the same for not 
 less than five thousand dollars a share of one twelfth, and that 
 he had given his personal obligtion to a Scribner in the sum 
 
86 Fraud. 
 
 of forty thousand dollars, to secure Scvibner out of the sales 
 of these shares at five thousand dollars for one twelfth part 
 tliereof; that by these representations to complainant and 
 others named in the bill of complaint, they were induced to 
 form a company to purchase this two tliirds interest; and as 
 a further inducement to purchase, Tuck represented that no 
 reduction in price could be obtained from Scribner; and he 
 further represented to them that he was an experienced geol- 
 ogist, well acquainted with mines and mining in tlie Territo- 
 ries, and with these mines in question, by wiiich he could 
 speak confidently as to their value. lie then represented tliem 
 to be of great value, yielding rich copper ore, with more or 
 less gold, and assured coniphiinant if he would purchase a 
 share, the profits immediately to result from their being worked, 
 or within the first six months, would be large enough to enable 
 him to pay for such share from the profits ; that tiie mines could 
 be depended upoa for sufficient copper ore to keep one or more 
 smelters in constant operation from the commencement, and 
 that the profits would be large; that relying upon these repre- 
 sentations, complainant purchased of Tuck one undivided one 
 twelfth interest, and gave to him his promissory note for five 
 thousand dollars, payable six months after date, upon which 
 Tuck delivered to complainant a quitclaim deed from himself 
 for this one twelfth interest; that Tuck disposed of other 
 shares, to wit: to W. L. Scott one share, to I. Camp one share, 
 to Noble two shares, and' to M. R. Barr two sliares, he, Tuck, 
 pretending to divide Scribner's interest into eight shares, he 
 selling seven shares and retaining one share to himself. 
 
 The bill then alleges that a company was thus formed in 
 Erie to work this mine, to smelt and sell ore and copper; 
 that it was called " The Erie Mining and Smelting Com- 
 pany," but was not incorporated. It is then alk'ged the com- 
 pany took possession of the mines in August, 1873, and at- 
 tempted working them, but found them wholly worthless; 
 that complainant fully relied on all the representations 
 of Tuck, and believed them true when he made the pur- 
 chase and gave his note; but they were all false and 
 untrue, and made by Tuck to cheat and defraud complainant 
 out of his note; that, so far from being true, Scribner 
 gave Tuck the deed for his two thirds interest in the mines 
 
Tuck v. Downing. 87 
 
 on the understanding that he should go East and dispose of 
 it for not less than five thousand dollars for an undivided 
 one twelfth part; and so far from its being- true that Tuck had 
 given his personal obligation to Saribner for forty thou, 
 sand dollars, he had obtained Soribner's interest for a mere 
 nominal value and without such obligation; that the entire 
 interest of Scribner eould have been obtained for the amount 
 of complainant's note; that Tuck well knew this at the time 
 he made his representations; that lie made them with in- 
 tent to cheat complainant out of the note, he, Tuck, knowing 
 all his representations to be unirue, and the mines to be worth- 
 less. It is tlien alleged, so anxious was Tuck that complain- 
 ant and others should not know wliat he paid Scribner or what 
 Scribner had or would ask for his interest, that when one of the 
 persons to whom shares were sold suggested to Tuck that a 
 letter should be written to Scribner to see if he would not 
 take less than 'forty thousand do'lirs therefor. Tuck im- 
 mediately opposed the idea, asserting it was Scribner's best 
 terms, and he had obligated himself to pay forty thousand 
 dollars, and Scribner would not take a cent less. 
 
 The bill then charges that, in disposing of this stock to 
 these members of the company, he unjustly discriminated in 
 favor of certain members, by selling to such, interests in these 
 mines on more favorable terms than he did to complainant, 
 to the prejudice of his rights as a member of the company, 
 and in violation of a common understanding as to the price 
 to be paid by each member thereof purchasing from him, 
 Tuck, and the note was obtained by fraud. 
 
 The bill then charges that, after obtaining the note, Tuck 
 left Erie and was not heard from until the 13th of October, 
 1873, when complainant receis^ed a telegram from Cliilds & 
 Prince, bankers in Chicago, asking if complainant's note to 
 Tuck was all right; to which complainant replied it was not 
 all right, and in three or four days thereafter complainant re- 
 ceived a letter from these bankers to the effect that his tele- 
 gram did not reach them in time to prevent them advancing 
 upon the note to Tuck seven hundred dollars, and that they 
 held the note as collateral security therefor. 
 
 Answer under oath was waived. The prayer of the bill of 
 complaint was, that Childs & Prince be restrained from 
 
88 Fraud. 
 
 buj'ing this note and from selling, or in any manner dispos- 
 ing of the same, except to complainant, and if thej had 
 bi)aght it in good faith, or had advanced money on it to Tuck, 
 that they may be decreed to deliver to complainant the note, 
 upon payment by him of the amount advanced by them, and 
 that complainant might be subrogated to their rights, and 
 that they deliver up to complainant any notes of Tuck or 
 other securities iield by them from or against Tuck for this 
 advancement, and that the note in question might be delivered 
 up and canceled, and for further relief. 
 
 An injunction was allowed, and defendants Tuck and Childs 
 & Prince filed their answers, the latter stating, in substance, 
 the receipt and possession of complainant's note; that they 
 had advanced seven hundred dollars upon it without notice 
 of any infirmity in it, and held it as collateral security there- 
 for. They admit having in their possession some silver min- 
 ing stocks received from Tuck, and will present a list of the 
 same when required by the court, and liavo no other property 
 of Tuck. 
 
 Tuck answered the bill at length, and in detail, in which 
 he gives his version of the transaction, admits the visit to 
 Erie in July, 1873, where lie endeavored to form a company 
 to purchase a two thirds interest in these mines, and admits 
 he represented to complainant and others tliere tliat one Scrib- 
 ner, of Salt Lake City, owned a two thirds interest in these 
 mines, as alleged, and that he would sell this interest lor 
 forty thousand dollars, and that Sanger had a deed for that 
 purpose; admits they spent some time in Erie; that he 
 there re})resented he had no interest in the mines; tliat he 
 came with Sanger as a professional attendant, he himself 
 being a professional and practical geologist, and acquainted 
 with mines and mining in Utah Territory, and for that reason 
 could speak more confidently of the character and value of 
 these mines; that they (he and Sanger) represented that the 
 mines were valuable, yielding rich copper ore, with moi'e or 
 less gold and silver,, and that Sanger had an interest of one 
 third in these mines as an investment, and that Scribner 
 would not sell his two thirds for less than forty thousand dol- 
 lars. He admits they then left Erie, and tliat he. Tuck, re- 
 turned to that place on the 1st of August, 1873, with a deed 
 
Tuck v. Downing 89 
 
 from Seribner of his two thirds interest, and represented to 
 complainant and the others that it was executed to him to en- 
 able him to convey that interest to others for not less than 
 live thousand dollars for each share of an undivided twelfth 
 part of the same; but denies that he represented to complain- 
 ant or others of Erie that he had given his personal obligation 
 to Seribner for forty thousand dollars, or other sum, as a 
 guaranty that he would sell his interest for that sum and se- 
 cure its payment by sales of shares, or otherwise, and denies 
 making the representations to complainant or others of Erie, 
 alleged in the bill. He admits he did state to complainant 
 and others of Erie, that no reduction in price could be obtained 
 of Seribner; that the mines were of the capacity and value as 
 alleged in the bill, and that he made such representations in 
 order that complainant and the others might be induced to ex- 
 amine the mines themselves, and satisfy themselves, upon 
 such examination, of their value, preliminary to the formation 
 of such company for working the mines; and that all the rep- 
 resentations made by him were true in every particular, and 
 that the representations were so understood bj' complainant 
 and the others to have been made for the only purpose of in- 
 ducing them to examine the mines, and thereby ascertain if 
 it would be advisable for them to em.bark in the enterprise; 
 that thereupon complainant and the others appointed a com- 
 mittee, consisting of M. JR/Barr and Irving Camp, to proceed 
 to the mines and examine into their capacity and value, he, 
 Tuck, promising to accompany the committee to the mines, 
 which he did; that the committee, when at the mines, exam- 
 ined them fully, and at defendant's suggestion they went to 
 "Mammoth" and " Copperopolis " mines at East Tintic, 
 eighty miles from Salt Lake City, to examine those mines, in 
 order to assure themselves of the character, value and extent 
 of the mines in question, they being of the same general cliar- 
 acter of the mines in question, and so understood by this 
 committee at the time; that after a critical examination by 
 the committee of these Tintic mines, they returned to Salt 
 Lake Citj' and again went to the mines in question and made 
 another thorough examination of them, and took ores from 
 the mines and had them assayed to ascertain their richness 
 and value; and thereupon the committee expressed them- 
 
90 Fkaud. 
 
 selves to be more than satisfied with the result of their inves- 
 tigation, and said to defendant and others that the mines were 
 of greater valne than had been represented to them by Sanger 
 and Tuck at Erie; that the committee, whilst at these mines, 
 made arrangements to purchase a favorable site for the com- 
 pany; that shortly thereafter, the committee and defendant 
 returned together to Erie, the committee reporting to the 
 parties tiie result of their mission, and of their examination 
 of the mines, to complainant and the others interested in tlie 
 enterprise, and they reported to these persons that these 
 mines were of great value, and better, in every respect, than 
 had been represented. 
 
 The answer theu alleges that upon this report of the com- 
 mittee on their return to Erie the company was formed, com- 
 posed of certain persons, among whom were complainant and 
 defendant Tuck, for the purpose of purchasing Scribner's in- 
 terest in these mines and operating the same; that complain- 
 ant, relying upon the report of tlie committee so made, pur- 
 chased of defendant one share, being one twelfth, for five 
 thousand dollars, executing his note at six months therefor, 
 whereupon defendant executed to complainant a deed for such 
 share. He denies that complainant was deceived by any rep- 
 resentations made by Sanger or himself respecting these 
 mines, and did not rely upon the same, but did rely upon tlie 
 report of the committee alone. He denies he obtained the 
 deed from Scribner for five thousand dollars, or a mere nom- 
 inal sum, or that he represented to complainant or any one 
 else that he had given Scribner forty thousand dollars, or any 
 other sum, and denies all fraud. He admits leaving the note 
 with Cliilds & Prince as collateral security for a loan of seven 
 hundred dollars, and thereupon defendant entered his motion 
 to dissolve the injunction. 
 
 At the March term, 1874, a general replication was filed, 
 and the cause set for hearing at April term, 1874. 
 
 On the hearing, against the objections of defendant, the 
 court permitted complainant to amend his bill, by alleging 
 anoflfer and willingness on his part to reconvey to the defend- 
 ant all his interest in these mines, and title conveyed to liim 
 by defendant by his deed. 
 
 A decree passed, as prayed in the bill of complaint, the note 
 
Tuck v. Downing. 91 
 
 in question declared fraudulent and void, and to be "annulled, 
 set aside and canceled," and tliat Clulds & Prince, upon the 
 payment to them by complainant of the seven hundred dol- 
 lars loaned defendant, and interest thereon, deliver the note 
 to complainant, and that complainant reconvey the property to 
 defendant, covenanting that he has done nothing to incumber 
 it, etc. 
 
 Messrs. Bkownell & Montont, for the appellant. 
 
 Messrs. "Whbaton, Canfield & Smith, for the appellee. 
 
 Mr. Justice Beeese delivered the opinion of the court. 
 
 This is an appeal from the Circuit Court of Cook County, to 
 reverse a decree entered in that court in favor of Jerome P. 
 Downing against J. 11. L. Tuck and others, canceling a cer- 
 tain note executed by the complainant to the defendant Tuck, 
 for certain mineral lands in Utah Territory, sold and conveyed 
 by the defendant to complainant. The cause was regularly 
 set for hearing on bill, answer, replication and proofs heard, 
 and a decree passed as prayed. The defendant appeals. 
 
 It is unnecessary to consider the point made by appellant, 
 questioning the right of the court to allow an amendment to 
 the bill of complaint on the hearing, for, in our view of the 
 whole case, appellee has no merits. 
 
 Appellee, under the second head of his brief, concludes 
 there are three elements of fraud in this transaction, or three 
 classes of fraudulent representations; and first, with regard 
 to the price for which Scribner's two thirds interest could be 
 bought; second, the representation made by appellant to ap- 
 pellee, that Gamp and Scott had paid, each, five thousand 
 dollars for a share, and that Noble had paid for two shares; 
 and third, the false representations made by appellant as to 
 the character, quality and condition of the mines. 
 
 On the first point, there being no fiduciary relation between 
 the parties, such a misrepresentation, if one, is not sufiicient 
 cause to rescind a sale: Banta v. Palmer, 47 111. 99. If the 
 price alleged to have been paid in that case, was thousands 
 of dollars instead of units, the principle would be the same — 
 
92 Feaud. 
 
 that is not controlled or affected by figures. We also refer tp 
 1 Story's Eq. Ju., Sees. 199, 200; Merryman v. David, 31 
 111. 404. 
 
 But what are the real facts on this head? Scribner, throui^h 
 whom appellant claimed, was, with one "Wood, the undisputed 
 owner of the property in question, the legal title being vested 
 in Scribner alone. He was an experienced miner and pros- 
 pector, and had sold to Lucian P. Sanger an interest of one 
 third in these mines, and they, not having the necessary cap- 
 ital, were desirous of finding tliose who had and were willing 
 to invest, for the purpose of further developing and working 
 the mines, Scribner was examined as a witness in this cause, 
 and he stated, and it is not contradicted that the first time 
 appellant went east with Sanger, he (Sanger) had a deed, or 
 some other writing, giving him the control of this two thirds 
 interest, and he had given his obligation to pay nine thousand 
 dollars therefor in sixty days, or return the papers. There 
 was no agreement between the parties as to the selling price 
 to other parties. When they went east they were not acting 
 for witness or Wood, bat for themselves. No sales were 
 made by Sanger at Erie, and he returned the papers to Scrib- 
 ner, who did, about the 24:th of July, 1S73, execute a deed to 
 appellant for this interest. Appellant gave his obligation 
 for nine thousand dollars, which recited if they did not get 
 their pay in sixty days, they (Scribner and Wood) were to 
 hold the mines — appellant was to reconvey to thein. At any 
 time, Scribner testifies, their interest could have been pur- 
 chased for ten thousand dollars. He further testified, Tvhen 
 Barr and Camp (the committee) were at Utah, appellant had 
 the sole right to determine the value for which this two thirds 
 interest should be sold; On the return of appellant to Utah, 
 he paid Scribner for his interest, telling him the property had 
 been sold for fifteen thousand dollars, saying he and Sanger 
 still retained an interest, but how much witness did not know 
 — don't think they ever told him. 
 
 Upon this point appellant testified that Mr. Noble asked 
 him in his bank at Erie, the second time he was there, if he did 
 not think if lie (ISToble) was to go to Utah, he could buy this 
 property of Scribner for less money than appellant was asking 
 for it. Appellant replied, "No, not a cent less," and this, as 
 
Tuck v. Downing. 93 
 
 appellant testified, for the reason he had the deed for the prop- 
 erty in his possession, and showed it to Noble and said to Noble 
 he had given Scribner his obligation. Appellant repeated this 
 to the other parties,, and showed to all of tbem the deed he had 
 from Scribner, and told them he had given Scribner his obli- 
 gation, not naming forty thousand dollars he had given, but 
 that they could not purchase the mines for less than forty 
 thousand dollars of Scribner, for it had ceased to be Scribner's 
 property.. 
 
 The pretense these parties were not dealing with appellant 
 himself, but with Scribner through him, is put at rest by this 
 testimony and by the exhibition of Scribner's deed to appel- 
 lant for this property, sold and conveyed to him, in consider- 
 ation of nine thousand dollars. All this occurred after the 
 return of the committee from Utah, and after they had made 
 their report, and shows conclusively, they were dealing with 
 appellant as the owner of the property, which he, in fact, was. 
 
 Appellee testified that appellant told him the contract for 
 the sale of the mines had virtually been transferred to him. 
 Appellee then, before he bought and executed his note, knew 
 when he was trading with appellant he was negotiating with 
 the real owner of this two thirds interest, who made the 
 representations he did make as owner of the property, eager 
 to get the best price he could for it. 
 
 Now, when this deed to appellant, exhibited freely to ap- 
 pellee and all the other parties before the sale, showed on its 
 face that the consideration paid or agreed to be paid by ap- 
 pellant was only nine thousand dollars, how could it be 
 material if he did state he was bound to pay forty thousand 
 dollars for it? There was the deed which appellee saw and 
 read, expressing nine thousand dollars as the whole consider- 
 ation. Can it be believed these parties could have been in- 
 fluenced by this declaration when they were confronted by 
 the fact that nine thousand dollars was the price appellant had 
 paid or was bound to pay Scribner? It is folly to urge that 
 this statement of appellant influenced the action of appellee 
 in any degree. It could not have been so, appellee being a 
 man of business capacity, and the general western agent of one 
 of the most extensive corporations in the Union. 
 
 Justice Story says, if a party knows a representation to be 
 
94 Fbaud. 
 
 false wlien made to him, it can not be said to influence his 
 conduct; and it is his own indiscretion, and not any fraud or 
 surprise, of which he lias any just complaint to make under 
 such circumstances: 1 Story's Eq. Jur., Sec. 202. Courts of 
 equity do not aid parties who will not use their own sense 
 and discretion upon matters of this sort. 
 
 Appellant was dealing with his own property, and had a 
 right to "puff" it in the most extravagant terms, the other 
 ])arty being at full liberty to exercise his own judgment 
 about it. , There is nothing in the record to contradict appel- 
 lant in these respects, and it must be taken as true. The 
 deed spoke a language all could understand, and that informed 
 these parties appellant had purchased the property for nine 
 thousand dollars, and common sense should have taught them 
 he had the right to sell it for as much as he could get for it, 
 he himself occupying no fiduciary relation: Banta v. Palmer, 
 supra. 
 
 It is not fair to say, as appellee does in his brief, that he 
 was dealing with the appellant as a partner, and between 
 partners the utmost good faith must be observed. The evi- 
 dence does not show this relation. 
 
 A partnership is not the theory of the bill. Appellant 
 owned this interest^ and desired to divide it into eight parts, 
 and sell as many parts as he could find buyers. When 
 appellee bought one share, he became a tenant in common 
 with appellant, and when the others purchased their shares, 
 they also became tenants in common with appellant. 
 
 There were no articles of copartnership, verbal or written, 
 no mutual responsibilities resting on these parties; the 
 proceeds of the sales of the several shares belonged to ap- 
 pellant as proprietor and not as a partner. Not being a part- 
 ner in a partnership, appellant was not responsible to any of 
 them, and is not accountable to his co-tenants for his acts of 
 sale. Besides appellee argues that appellant in this matter 
 was acting as the agent of Scribner, and as such practiced the 
 deceitful arts charged in the bill. If so, it is utterly im- 
 possible he could be a partner with appellee and the other 
 purchasers, for he could not act for both. The whole case 
 shows there was no relation whatever of trust or confidence 
 between these parties; but it does show appellant owned the 
 
Tuck v. Downing. 95 
 
 property, and appellee bought one share after it had been 
 thoronghly examined by a committee of gentlemen he aided in 
 appointing, and without the least reliance on the representa- 
 tions of appellant. We think the proofs show that appellant 
 
 Having disposed of the first element charged as fraud by 
 appellee, the second will be considered — the representations 
 made by appellant to appellee that Camp and Scott had each 
 paid five thousand dollars for a share, and Noble had paid for 
 two shares. 
 
 If appellee chose to rely on such a statement when these per- 
 was acting for himself alone in this transaction, 
 sons were his near neighbors, seeing them, possibly, every day, 
 ii; was his own folly. But,' as we understand appellee's tes- 
 timony on this point, he said, befjre he gave his note, appel- 
 lant said he had "closed up" with all the other parties and 
 delivered the deeds. Appellant did not say they had paid 
 him, but that he had closed the matter with them by deliv- 
 ering the deeds. Had appellee desired fuller information on 
 this subject, he conld have inquired of the parties. But it is 
 strange that a man of business and experience, such as the 
 appellee is, should place any reliance on such statements, and, 
 whether true or false, it is impossible to believe they could 
 have influenced the decision of such a man as appellee is 
 represented to be; and it appears to us it was of no impor- 
 tance how appellant might dispose of this property, it 
 being his own. How he closed up the matter with these 
 persons was no business of appellee, and concerned him in 
 no possible way. 
 
 The third element of fraud, and one most worthy of consid- 
 eration, is the alleged falsity as to the character, condition 
 and quality of these mines. "Wo have searched the record 
 vTith great care for proof to sustain the charge of falsehood in 
 this respect. In addition to what we have said in regard to 
 the purchase of a mining interest, we will state the facts as 
 they appear to us in the record. 
 
 It is not denied, when the committee went to the mines to 
 examine them they were treated with perfect fairness by 
 Scribner, Sanger and appellant, and every aid afforded them 
 to a full and satisfactory examination. The record shows 
 all their acta wertj in the atmost good faith, and prompted by 
 
96 Fi.'AUD, 
 
 a sincere desire to furnish all the infornntion they could , 
 before appellee and tiie others should make the purchase. 
 What do the witnesses say on this point ? Scribner says, the 
 committee examined the mines thoroughly. They took up 
 the ore; they broke off pieces, and witness broke off somti 
 from different places in the mines. They took that ore and 
 returned to Salt Lake City, with the intention of having it 
 assayed, and told him afterward they had it assayed. Scribner 
 accompanied them to Brigham Oailon and Copperopolis, to 
 examine the mines there; were gone two or three days, and 
 while in Brigham Canon they examined the Winnimuck 
 mines. On their return they went again to these mines, took 
 other specimens of ore, and examined the ground thoroughly, 
 and told witness, when they got back to town, they got their 
 assay certificates; and then Mr. Barr, in witness' room in Salt 
 Lake City, said they intended to take the mines, and tliat 
 they were better than Sanger and appellant represented, and 
 that he was more than satisfied, and if they "played out" there 
 was no one to blame. Scribner further says, the committee 
 went to exanjine the mines in the Tintic district, in order to 
 compare them with the mines in controversy — that was what 
 they said. They went away satisfied, when tliey examined 
 the Tintic mines, that these they were about to purchase 
 would turn out as well, judging from what they could see. 
 
 Mr. Camp, one of the committee appointed by appellee and 
 his associates, testified: "We examined these mines and their de- 
 velopment, and took specimens of the ore therefrom to assay, 
 and on our return to Salt Lake City left them with the assayer, 
 John McYickar, for assay by him. We then went to the East 
 Tintic mining district, to visit the mines known as "Mam- 
 moth," " Copperopolis" and " Chrisman Mammoth," which we 
 inspected. These were similar in their ores to the mines we 
 were intending to purchase. We then returned to Salt Lake 
 City and went from tliat place to visit the Winnimuck mines 
 in Brigham Caiion. This last mine is only one and a quarter 
 miles from the mines which were the subject of negotiation. On 
 our return we made a second and further examination of the 
 out-crop of the veins or ores, and of the ore in the openings and 
 cuttings at or near the junction of the " Aqua Frio " and 
 "Black Met Uic" mines. We then returned to Salt Lake Citv, 
 
Tuck v. Downing. 97 
 
 where we obtained the report of the assayers, and made exam- 
 ination of the abstract of. title of these mines at the recorder's 
 office, and returned to Erie. On onr return to Erie, the associ- 
 ates or parties spoken of were called together and our report 
 made. The report was, that we found the situation, surround- 
 ings and development of these mines fully up to the repre- 
 sentations, made by, Sanger and Tuck, and the assay of the 
 ores, on an average assay three or four per cent, better than 
 the assay Sanger and Tuck had shown at Erie, and the title 
 thereto reported we found all right. Then a canvass com- 
 menced for getting up the association for the purchase of 
 shares, when appellee took one, etc. Appellant in his testi- 
 mony states that his object in visiting Erie was to interest 
 capitalists there to such an extent that they would send a com- 
 mittee to examine these mines, and if they found them as 
 good as represented, they could have a two thirds interest at 
 the rate of sixty thousand dollars, or five thousand dollars 
 each one twelfth. Drew up a subscription list, embodying 
 these facts and conditions of sale. Among those who signed 
 it was the appellee. Met the committee appointed to exam- 
 ine the mines at Joliet and proceeded with them to Utah. 
 Took tiiem to the mines, which they carefully examined, made 
 measurements of the work done- and of the amount of the ore 
 inside, and estimated the amount of the ore in the dump, and 
 they said the out-crop and the appearance of the indications 
 of these mines were really superior to that of the out-crop of 
 the "Mammoth" and "Copperopolis." "While at the mines 
 the committee took a large number of samples of ore from 
 the mine in diflerent locations, and also from the dump, and 
 brought them to Salt Lake City for assay. He further testi- 
 fies that Barr, ou the next day, employed Scribner to go back 
 to these mines and purchase another mine, called an exten- 
 sion of " Aqua Frio," whiclx.he did, Barr paying for the same 
 by draft. The committee remained thereafter at the city one 
 day to attend to the assays, and went again with witness to 
 the canon to buy a location for a furnace site. Met Scribner : 
 there. The ground was selected, and Barr authorized Scrib- 
 ner to buy it, which he did, taking deed to Barr; next day 
 started for home. Barr left the train at Peru for a short 
 visit. Witness left at Joliet, promising to meet thein at Erie 
 
 VOL. VII.— 7 
 
93 Feaud. 
 
 at an early day to perfect the papers. The committee were 
 more than pleased with tlie mines. They rande a written re- 
 port from Utah about them, and at Erie a meetin;;; was called 
 and the report considered, and Barr then and there, having 
 before his visit to the mines taken one share, said he wonld 
 take two shares and did so. A company was then organized, 
 of which appellee was president. Appellee was to have paid 
 cash for his share, but complaining of hard times and that he 
 had been purchasing real estate, asked indulgence of six 
 months. Witness had employed nine men at the mines, and 
 commenced taking out ore immediately and piled on the dumps 
 as much as one hundred and fifty tons, as he tiiought. It was 
 measnred and amounted to more. Had business East, and 
 left the mines in ciiarge of Joseph Hicks, as foreman. When 
 East, Mr. Barr, in November, about the middle, came out to 
 the mines which had been worked since August 20th. By 
 Barr's orders work vas suspended entirely. 
 
 This witness fully sustains the others as to the favorable 
 appearance of the mines. Lucien P. Sanger was familiar with 
 the mines and corroborates all that has been said as to their 
 flattering appearance. The assays averaged 23.7 copper, $70 
 in silver, and from five to eigiiteen dollars in gold, to the ton. 
 He went to Erie to get capital to assist in developing the 
 mine, he owning one third of the whole; rode with Barr from 
 Joliet to Chicago on his return from examining the mines, 
 and conversed freely with him; he said he had examined them 
 thoroughly; had been to Tintic and examined the mines there 
 having the same ciiaracter of ore; tliat the prospects were bet- 
 ter than he and appellant had represented them; his opinion, 
 as a miner, is, that the mines should be worked by all means, 
 the indications being there is there one of the biggest mines 
 in the country. Witness was a large owner in tliese mines, 
 and had paid all his assessments. On October 20, 1873, tiie 
 drift was 120 feet; after going througii barren ground a num- 
 ber of feet, the rock was becoming very much stained; had it 
 assayed, and it went $403 to tiie ton in silver; believes these 
 stains indicate tlie biggest kind of mineral; regrets the work 
 was stopped, for the ground is not proved at all; stopped witli- 
 ont his knowledge or consent, without consulting him, while 
 he was absent in the States; it was bad policy to stop. 
 
Tuck v. Downing. 99 
 
 Experienced miners, well acquainted with these mines, tes- 
 tify the ores are copper, gold and silver producing ores; from 
 out-crops and outside appearance, the mine was very large; 
 such property worth sixty thousand dollars; in buying and 
 selling mines, people buy and pay, or agree to pay, according 
 to the prospect in sight; out-crop very flattering, showing a 
 large amount of mineral in sight in the open cuts and strip- 
 pings; the work done on them in August and September done 
 with very poor judgment; the tunnel was run according to the 
 stratification, when it should have been run to cut the stratili- 
 cation, so as to cut the vein; acquainted with similar mines in 
 that vicinity, but with none with a prospect so flattering as 
 the mines in question; from the out-crop and ore in the 
 dumps would consider the property worth from seventy- 
 five thousand dollars to one hundred thousand dollars; parties 
 purchase mines on the prospect, without warranty or guaran- 
 ty, and on the mineral in sight; there is no custom requiring 
 guaranty or warranty. Tuck is an honorable man, and well 
 posted on mining and scientific matters connected therewith; 
 liave a high opinion of the property from its showing; never 
 been in Tuck's employment. 
 
 Another witness says, the finest prospect on the surface he 
 ever saw; the out-crop indicated a very valuable mine; at the 
 time this was sold, no mines were being sold in that vicinity 
 of a similar kind; such a thing as a warranty of a mine on the 
 Pacific coast is unknown; no custom of the kind; buy and sell 
 on the ore in sight; several mines very valuable now there, 
 lately discovered. 
 
 Joseph Hicks, an experienced miner, worked these mines 
 two months for Scribner and three months for the Erie Min- 
 ing and Smelting Company; ordered to quit work by Barr; 
 prospect favorable; when he quit, of striking ore in paving 
 quantities, but impossible to tell how soon; judged it bad 
 policy'to quit; impossible to tell the actual value of a mine by 
 the prospect; indications good; met Camp and Barr at the 
 mines; they examined the mines two different days; took 
 samples of ore; when they visited it in July, 1873, the pros- 
 pect was favorable for a large mine. 
 
 McYickar, the assayer, testifies the out-croppings of these 
 mines are similar to those of the "Mammoth "and "Copper- 
 
100 Fraud. 
 
 opolis;" no guaranty is given as to the quantity of ores or 
 minerals which will be produced from mines, in selling them; 
 people buy from the prospect in sight; have made a great 
 many assays from these mines, some for Scribner; and in 
 August last made five for Barr and Camp; the average of 
 tlio^e assays would be about 24^ per cent, copper, seventy 
 dollars in silver and eleven dollars in gold per ton of two 
 thousand pounds; gave these results to Barr and Camp. 
 
 This proof shows clearly that, at the time the sale was made 
 and this note was executed by appellee, the mines were sub- 
 stantially as represented by appellant and Sanger, and the 
 committee that examined them thought them even better. 
 
 Against this mass of testimony as to the appearance of the 
 mines when sold to appellee and others, we have the testimony 
 of Wellington Downing, son of appellee, a young man about 
 twenty-three years of age, who was sent out to the mines in 
 August, 1873, who had no experience, and who, Sanger testifies, 
 acted as cook to the hands and took charge of the water supply 
 and sometimes the check roll of the men. He quit in No- 
 vember following, because no encouragement to proceed further 
 — indications then very unsatisfactory. 
 
 Barr also figured as a witness for appellee; what he discov- 
 ered on his second visit to the mines, in October, 1873, or how 
 they appeared, has nothing to do with the decision of this 
 case. Tlie purchase was made on the faith of his report as 
 one of the committee, in July previous. The proof, as we 
 havS seen, sustains the representations then made. - Jnst be- 
 fore he made this second visit, the great money panic of Sep- 
 tember had produced dismay and trouble throughout all de- 
 partments of business, and these gentlemen, though connect- 
 ed with large moneyed corporations, found it difficult to raise 
 means. Money is the sinew of mining, as of war, and that 
 supply failing, the mines were a fraud, and the whole thing a 
 cheat and a swindle. It matters not how the mines turned 
 out. If the prospect was as represented when appellant sold, 
 the purchasers are bound to stand to the bargain. 
 
 Who are these purchasers complaining? The complainant, 
 Jerome F. Downing, is a man forty-seven years of age, resid- 
 ing in the important borough of Erie, in tiie State of Pennsyl- 
 vania, and the general manager in the "West of one of the most 
 
Tuck v. Downing. 101 
 
 known and substantial insurance companies in the United 
 States, known as " Tlie Insurance Company of l^orth Amer- 
 ica, at Pliiladelphia." 
 
 Orange Noble, anotlier member of this Erie Mining Com- 
 pany, was fifty-six years of age, the president of the "Keystone 
 National Bank of Erie." 
 
 Matthew K. Barr was fifty-six years of age, and had been 
 for a long time prior to this transaction, engaged in the 
 iron foundry business. He was one of the committee to 
 visit these mines in person. These persons were the prin- 
 cipal witnesses for complainant, and their testimony, at 
 first blush and without a careful examination, might tend 
 to sustain some of the allegations in the bill of complaint. 
 It is upon proof of these allegations, if they establish 
 fraud, that relief can be had, and upon them only. A 
 party can not make out one case by his bill and another by his 
 proof — they must correspond. The nature of the subject bar- 
 gained for, and what was sold; the character of the repre- 
 sentations made, whether true or false, and if false, were they 
 material; and how does the evidence preponderate, taking the 
 whole case into consideration; and care must be observed in 
 order to distinguish mere opinion from facts. 
 
 After a careful examination of this record, we are satis- 
 fied no false representation of i'; cts is established against 
 appellant, unless it be in respect to the amount he was to 
 pay Scribner for his two thirds interest in these mines, forty 
 thousand dollars, and for which he had given his personal ob- 
 ligation. Appellant denies having made this latter statement, 
 but in this he is contradicted by several witnesses, all interest- 
 ed, who testify he did so state. But we hold, admitting he 
 did so state, it was of no importance; it was not a fraud in 
 legal contemplation, there being no relation of trust or confi- 
 dence between these parties, creatinu; a duty resting on appel- 
 lant to state the truth. It might be morally wrong, but the 
 law can not lay hold of it. This doctrine was distinctly an- 
 nounced by this court in Bianta v. Palmer, 47 111. 99. There, 
 the plaintiflf had paid defendrtnt eighty-five dollars per acre 
 for the land, on defendant's represelitation to him that he him- 
 self had paid that sum for it, when, in truth and in fact, he 
 had paid but seventy-five dollars per acre for it. The court 
 
102 Feato. 
 
 say, if no fiduciary relation existed between' the parties, how- 
 ever wrono;, morally, it may have been in the defendant to 
 misrepresent the price he liad paid for the land, the misrepre- 
 sentation does not entitle the plaintiff to recover back the dif- 
 ference between what he had paid for the land and what it had 
 cost the defendant. 
 
 These gentlemen trading for these mines were old and ex- 
 perienced men of business, mingling and taking active parts 
 in the struggles of life, and it could be of no possible advan- 
 tage to them, in determining how much they could risk in a 
 speculation like this, what the seller had paid or was bound 
 to pay for it. Besides, this representation could have had no 
 effect when the deed from Scribner to Tuck, conveying his 
 two thirds interest, expressed a consideration of nine thousand 
 dollars only. These parties purchased on the strength of this 
 deed, as assuring Scribner's title to be in appellant for the 
 consideration of nine thousand dollars. 
 
 If one has a horse, and proposing to sell, shall assert that 
 he paid one thousand dollars for him, when the bill of sale ex- 
 presses a consideration of one hundred dollars only, it can 
 hardly be said a purchaser of the horse for two* hundred dol- 
 lars, and that sum greatly above his value, can hope to re- 
 scind the contract on the ground of such a misstatement. The 
 truth is, such statements by practical men, as these parties 
 all are, are never regarded, and enter not into the conclu- 
 sions they may reach as to the value of an article. Practical 
 men, like these, act on their judgments of values. The dec- 
 larations of appellant, that he had given his personal obliga- 
 tion to Scribner for for^y thousand dollars, was to these busi- 
 ness men but as the idle wind, the mere vaporing of one whose 
 only object was to get a high price for an article he owned and 
 desired to sell. 
 
 This court said, in Miller v. Craig, 36 Til. 109, upon this 
 question of fraudulent misrepresentation the appellant, in 
 endeavoring to effect a trade with appellee, used no more arti- 
 fice than is usual and allowable where a party wishes to dis- 
 pose of property, real or personal. He has a right to exalt 
 the value of his own property to the highest point his antago- 
 nist's credulity may bear, and depreciate that of the otlier 
 party. This is the daily practice and no one has ever sup- 
 
Tuck v. Downing. 103 
 
 posed that such boastful assertions or highly exaggerated de- 
 scriptjon amounted to fraudulent misrepresentation or deceit. 
 The parties were dealing at arm's length and on equal grounds, 
 and their own judgments were to be their guide in coming to 
 a conchision. It is proved that complainant had the fullest 
 opportunity of which he availed, to examine the property, 
 and afterward moved into it. 
 
 It will be remembered, the evidence shows that no sale was 
 effected by appellant on his first visit to Erie with Sanger. 
 They went there for the purpose of procuring, capitalists to 
 embark in this mining enterprise, all of which are in their in- 
 cipiency hazards which few besides practical men are willing 
 to incur, and men who have money to invest. The world lis 
 full of such, no one of whom enters into associations of this 
 nature with a certainty of ultimate success. Appellant, as a 
 practical geologist, had freely and earnestly expressed to these 
 people his convictions of the value of these mines, but he de- 
 sired, before any investment was made, a committee should 
 proceed to Utah, examine and report. A committee was 
 raised, of which Barr, a man of great experience in the 
 iron foundry business, was one. Mr. Irving Camp, aIso a 
 prominent business man of Erie, whs the other member 
 of the committee, and they, with appellant, proceeded to 
 these mines; examined them critically; went eighty miles 
 farther south to visit the mines of East Tintic, to com. 
 pare the ores of the mines controlled by appellant with the 
 ores of these rich and "productive mines. They retiirned and 
 again visited these mines, again examined the prospect, broke 
 off fragments of the ores, took them to a noted and compe- 
 tent assayer at Salt Lake City to be assayed, who pronounced 
 them such ores as had been represented and as valuable, and 
 the committee were well satisfied with the prospect and with 
 the promises of rich returns. So much pleased was Mr. Barr 
 with the appearance that he purchased on his own private 
 account an adjoining mine, for which lie paid several thou- 
 sand dollars. 
 
 The committee returned to Erie and made their report, in 
 all respects favorable, though appellee testified it was not sat- 
 isfactory to him. Yet he did, of his own free will, after the 
 report was made, purchase one twelfth interest, and executed 
 
104 Feaud. 
 
 the note in question therefor. It is idle to say or pretend 
 tliis report did not influence him, but the false representations 
 of appellant did; that he relied upon them, and not upon the 
 report of the^committee. But the trutli is, the report of the 
 committee sustained appellant substantially in the declara- 
 tions he had made. It is not proved he was guilty of stating 
 anything which was not true, save and except as to his per- 
 sonal obligations to pay Scribner forty thousand dollars, and 
 this, we have shown, was unimportant, and not such a deceit 
 as the law forbids. 
 
 It is in proof that appellant rendered all the assistance. in 
 his power to the committee in their examination, and made 
 to them many statements of the richness of the vein, its extent 
 and value, and spoke of it as the mother vein of all this coun- 
 try; that there never was such a " blow-out" without there 
 being a mammoth vein. This was all matter of opinion on 
 appearances visible to the committee men, and on which they 
 could form their own opinions, and did so, and were satisfied 
 with the prospect; so reported to appellee and their other 
 associates; after which they executed their notes. It is in 
 proof.that, in buying and selling mines, people buy and pay, 
 or agree to pay for them, influenced by the prospect. No 
 man, however scientific he may be, could certainly state liow 
 a mine, wltii a m:)st flattering, out-crop or blow-out, will 
 finally turn out. It is to be fully tested and worked by men 
 of skill and judgment. Mines are not purchased and sold on 
 a warranty, but on the prospect. "The sight" determines 
 the purchase. If very flattering, a party is willing to pay 
 largely for the chance. There is no other sensible or known 
 mode of selling this kind of property. It is, in the natui'e of 
 the thing, utterly speculative, and every one knows the busi- 
 ness is of the most fluctuating and hazardous ciiaracter. How 
 many mines have not sustained the hopes created by their 
 out-crop ! 
 
 The extravagant'declarations of appellant after his return 
 to Erie with the committee of examination, and made in their 
 presence, that a silver mine with copper croppings was an in- 
 exhaustible mine of wealth ; that the " Aqua Frio " and " Black 
 Metallic " were the biggest things in Utah; that situated at 
 the Fork Hills was greatly to their advantage; that they were 
 
Tuck v. Dowhtng. 105 
 
 ■well developed mines, with well defined veins; that he had 
 never seen, in all his experience, such a " blow-out;" that a 
 furnace ought to be erected at once, as the ore could be mined 
 and all the money pui into it could be got out in a few months, 
 was mere gassing, and for the purpose of extolling what these 
 men, through their committee, had seen and could judge of the 
 prospects and promise for themselves. There was nothing 
 unlawful or prohibited in law in all this. It was after this 
 examination and report by Camp and Barr the share was 
 bought by complainant, and the note in question executed 
 and a deed delivered and accepted for the property. It is im- 
 possible their statement should be regarded as anything more 
 than opinions, for no man can tell how a discovery like this 
 may result. ~ Appellee could have understood them in no other 
 sense and the same may be said of the report of the committee. 
 They were opinions founded on facts as they appeared to 
 them. 
 
 Suppose, in the oil region, which is in the neighborhood 
 of appellee and his associates, an explorer there had sunk a 
 shaft out of which flowed ten barrels of oil in twenry-four 
 hours, and in the next twenty-four hours twelve barrels, and 
 continued to flow ten or twelve barrels a day, and he should 
 extol it as the best well in all that region; should induce Erie 
 capitalists to visit it, who go and see the flow, and are more 
 than satisfied after a critical examination, and they return 
 with the owner to report, and he again makes the most extrav- 
 agant representations; asserts it is the motlier well of all that 
 country; that there never was such a fiow without there being 
 an abundant supply; that it would flow one hundred barrels 
 in twenty-four hours, and it could be purchased for flfty thou- 
 sand and no less; a company is formed, each taking one share 
 at five thousand dollars; one of the associates is made presi- 
 dent of the company, as this complainant and appellee was of 
 the Erie Mining Company; should send his son. a young man 
 without experience, to manage the well, and soon after one of the 
 leading associates should visit the well and find it was flowlns 
 less than five barrels in twenty-four liours; could, under such 
 circumstances, a court of equity interfere to rescind the contract 
 on the ground of false representations? Wliere is the essen- 
 tial difterence between the oil well and the mineral discovery ? 
 
106 Fraud. 
 
 One is a liquid, the other a solid, and that is all the difference. 
 In purchasing the oil well they would buy from " the prospect," 
 and no court would hold the extravasjant assertions of the seller 
 as anything more than gassing. Tlie court would not hold 
 them as statements of fact, but as opinions, which the fact 
 as it appeared justified, or at least presented ground on which 
 to base the statements. So in the sale of a mine. These ex- 
 aggerated statement are always made, and a man's own nat- 
 ural judgment must be his counselor and guide. The great 
 " Oomstock " mine of Nevada, which has poured into the conn- 
 try its millions of silver, was bought and sold on the prospect 
 and for a few dollars. The discoverer could not pry into fu- 
 turity; he took his chances for a few dollars, whilst those pur- 
 chasing have a bonanza of scarcely appreciable value. 
 
 It is in proof the son of appellee, a youth inexperienced in 
 mining operations, was sent out in August, 1873, to oversee 
 these mines, and the operations to be performed there, and in 
 October of that year Mr. Barr again went to the mines and 
 was disappointed; gave it up as abad job; thought they bad been 
 swindled; whilst Hicks, a practical miner in charge of the 
 mines, and Tuck and Sanger, who owned an interest twice as 
 great as any one of their associates, protested against quit- 
 ting work, being well assured by perseverance their brightest 
 hopes would be realized. In September, 1873, the great mon- 
 ey panic occurred, and it is quite probable these gentlemen's 
 associates found it somewhat difficult to raise the money nec- 
 essary to develop these mines fully, and because no rich vein 
 was immediately struck they quit the matter in disgust, 
 and now insist upon rescinding the contract on the ground of 
 fraud. Whilst writing this last paragraph, a newspaper ar- 
 ticle attracted attention. It was in regard to a recent dis- 
 covery of a silver mine, at Newburyport, in the State of Mas- 
 sachusetts, a locality where it was never supposed silver ore 
 had a home. The statement was this: " Six hundred feet of 
 land on the Boynton lode were sold last week to a Springfield 
 company for one hundred and sixty thousand dollars." This 
 purchaser has purchased on his judgment from the indi- 
 cations, as complainant did on the report of his committee. 
 Sliould this six hundred feet turn out to be a bad speculation) 
 could the courts of Massachusetts be successfully invoked to 
 
Tuck v. Downing. K 7 
 
 rescind the contract, and have the notes, executed for the pur- 
 chase money, if that was the fact, given up to be cancekd? 
 "We fail to see any real difference in the cases. 
 
 We are familiar with the factn that there is a large class of cases 
 in which courts of equity will grant relief where there has been 
 a misrepresentation, or, as it is called, suggestio falsi. To 
 justify such interposition, it is not only necessary to establish 
 tlie fact of misrepresentation by clear proof, but it must be 
 about a material matter, or one important to the interests of 
 the party complaining;' for if itwasof an immaterial thing, or 
 if theotlier party did not trust to it, or if it was a matter of opin- 
 ion orfact equally open to the inquiries of both parties, andin 
 regard to which neither could be jiresumed to trust the other, 
 there is no reason tor equity to interfere to grant relief on the 
 ground "of fraud: 1 Story Eq. Jur., Sec. 191; The misrep- 
 resentation must not only be in something material, but it 
 must be in something in regard to which the one party places 
 a known trust and confidence in the other. It must not be a 
 mere matter of opinion equally open to both parties for ex- 
 amination and inquiry, where neither party is presumed to 
 trust to the other, but to rely on his own judgment. Mat- 
 ters of opinion between parties dealing upon equal terras, 
 though falsely stated, are not relieved against. Thus a false 
 opinion, expressed intentionally, of the value of the property 
 offered for sale, where there is no special confidence or relation, 
 or influence between the parties, and each meets the other 
 on equal grounds, relying on his own judgment, is not suf- 
 ficient to avoid a contract of sale: lb.. Sec. 197. 
 
 Again, it is said, nor is it every willful misrepreseiitatiou of a 
 fact which will avoid a contract upon the ground of fraud, it it be 
 of such a nature that the other party had no right to place re- 
 liance on it, and it was his own folly to give credence to it; 
 for courts of equity, like courts of law, do not aid parties who 
 will not use their own sense and discretion upon matters of 
 this sort: lb., Sec. 199. This is illustrated by a case at law, 
 Vernon v. Keys, 12 East, 637, where a party, upon making a 
 purchase for himself and his partners, falsely stated to the 
 seller, to induce him to the sale, that his partners would not 
 give more for the property than a certain price. It was there 
 held by Lord Ellenborohgii, that no action at law would lie 
 for a deceitful representation of this sort. 
 
108 Fkaud, 
 
 Story thinks (1 Story Eq. Jur. See .200), a court of equity, 
 under like circurastances, would probably hold a somewhat 
 more rigorous doctrine, at least if the party appeared to have 
 been materially influenced by the representation, to his dis- 
 advantas^e; and if it did not avoid the contract, it would refuse 
 a specilic performance of it. But, he says, in all such cases 
 tlie court "vVill not rescind the contract without the clearest 
 proof of the fraudulent misrepresentations, and that they weie 
 made under such circumstances as show the contract was 
 founded upon them. He further says. Section 200a: On the 
 other hand, if the purchaser, choosing to judge for himself^ 
 does not avail himself of the knowledge or means of knowl- 
 edge open to him or his agents, he can not be heard to say 
 that he was deceived by the vendor's misrepresentations, for 
 the rule is, caveat emptor, and the knowledge of his agents is 
 as, binding on him as his own knowledge. Courts of equity 
 do not sit for the purpose of relieving parties under ordinary 
 circumstances, who refuse to exercise a reasonable diligence 
 or discretion. 
 
 On puffing and commendation of commodities this author 
 says: However repreliensible in morals are gross exaggera- 
 tions or departures from truth, they are, nevertheless, not 
 treated as frauds whicli will avoid contracts. In such cases, 
 the other party is bound, and, indeed, is understood, to exer- 
 cise his own judijment, if the matter is equally open to tlie 
 observation, examination and skill of both: Sec. 201. 
 
 These principles have been recognized by this court in sev- 
 eral cases. To test this case by them, we have given a full 
 statement of, the leading facts. 
 
 That the prospect hanging over these mines in July, 1873, 
 when appellee purchased, was as represented, the testimony is 
 conclusive. The seller was not responsible for tlieir condi- 
 tion or for their ultimate value at a future time. There was 
 no warranty — no guaranty, and never is in such sales. Tliat 
 this was a rich mineral region, we are informed by the report 
 of Mr. Kaymond, United States Commissioner of Mining 
 Statistics, made to the Secretary of the Treasury in March, 
 1872. 
 
 In speaking of the " "West Mountain Mining District," the 
 situs of the mines in question, he says, among the numerous 
 
Tuck v. Downing. 109 
 
 claims there may be mentioned the Winnimuck — two thou- 
 sand feet located— vein varies in veidth from a foot to ten and 
 a half feet. The ore is argentiferous galena and carbonates. 
 An English company paid $i50i,000 for the property. The 
 mines are located at the head of Brigham canon, and the 
 claiifis cover several hills by being staked out on imaginary 
 veins running in all conceivab'e directions. This ore con- 
 tained only from four to thirty dollars in silver per ton: pp. 
 314, 315. , 
 
 Speaking of the Tintic district, he says it is about seventy 
 miles' southeast of Salt Lake City. It, as also the Winni- 
 muck, was visited by Barr and Camp, the examining com- 
 mittee, and in the "Mammoth" there is a remarkable deposit 
 of copper ore in limestone, cropping out upon the entire 
 slope of a hill lacing the broad and well-wooded valley of the 
 tintic. 
 
 Much of the ore is ferruginous and poor in copper, but 
 there are masses of rich, dark-colored ore, mixed, with green 
 and blue carbonates of copper. Co^siderable quantities of 
 this ore are shipped to Swansea (in Wales): p. 317. The per- 
 centage of copper in the ores from these claims varies with 
 the care taken in selecting. From ten to fifty per cent, may 
 be regarded as a profitable range for the ore in shipping 
 quantities. A very considerable quantity will not run over 
 eight per cent. The value of silver is reported to be from 
 twenty to one hundred dollars per ton: p. 318. 
 
 The proofs show, by the assay of the ores of the mines in 
 question, a greater percentage of copper and silver than these, 
 besides eleven dollars in gold to the ton, so that as a specula- 
 tion, which all such purchases are, they were worthy the at- 
 tention of men of capital, eager for sudden and great wealth. 
 
 In this region is the celebrated " Emma" mine, one of the 
 most remarkable deposits of argentiferous ore ever opened. 
 Of it he observes, without any well marked croppings, there 
 was nothing on the surface to indicate the presence of such a 
 mass of ore, except a slight discoloration of the limestone, 
 and a few ferruginous streaks visible in the face of a cut made 
 for starting the shaft: p. 321. 
 
 Mr. Barr need not have been discouraged in October, on 
 his rotnrn to the mines, which had been improperly worked, 
 
110 V Fkatjd. 
 
 by " the rock stained by carbonate of copper and chloride of 
 silver," wiilch he observed. Hicks, the experienced foreman* 
 ■ however, was not discouraged ; but as Barr and his associates 
 had, by their shares, a controlling influence, the works were 
 injudiciously abandoned. But this does not affect appellant's 
 claim nor determine his rights, as we think he has maintained, 
 by proof, all material statements made by him,, and which 
 were coniirmed by the report of the committee on which, we 
 are bound to believe, appellee acted. These mines, like all 
 others, were sold on the appearance, on the prospects, as they 
 appeared to Camp and Barr when they visited them in July, 
 1873. Like an oil well flowing ten or more barrels in twenty- 
 four hours, encouraging the hope it would flow one hundred 
 or more in the same time, and so continue, but is exhausted in 
 a few days, no reason for a cancellation of a contract for its sale 
 can possibly exist. So with a copper mine, or any other mine. 
 
 These parties may have made a bad speculation, but as this 
 court said in Walker v. Hough, 59 111. 375, to justify a 
 court in rescinding a contract executed by both parties, on 
 the ground that one of the parties was induced to enter into 
 it through fraud practiced by the other party, the testimony 
 must be of the strongest and most cogent character, and tlie 
 case a clear one. 
 
 Appellee may be a loser by engaging in this speculation, 
 but he did so uninfluenced, as we believe, by any misrepre- 
 sentations of appellant. It is not for every losing bargain a 
 court of equity will interpose to relieve. 
 
 The decree of the circuit court is reversed, and the cause 
 remanded. 
 
 Decree reversed. 
 
Aenold v. Baker. Ill 
 
 Arnold v. Baker et al, 
 
 (6 Nebraska, 134; Supreme Court, 1877.) 
 
 "Jumped" claim— General allegations of fraud, in pleadings, not 
 sufflcient. Plaintiff's petition stated that , the defendant had falsely 
 and fraudulently represented that he, the defendant, had "jumped" 
 a certain claim in Deadwood, " whereby he was at that time the lawful 
 owner thereof, according to the mining laws of said district, all of which 
 statements," etc., were false and fraudulent ; and upon such false repre- 
 sentations had sold his interest in the claim to the defendant : Held, 
 that while a contract procured by fraud may be rescinded at the election 
 of the injured party, a general allegation of fraud is not suflScient; the 
 particular circumstances which constitute the fraud must be statfed: the 
 allegation that defendant was not at any time the "lawful" owner, 
 according to the mining laws of said mining district, is not such a state- 
 ment of facts as would authorize a rescission. 
 
 Appeal to Supreme Court from jndarment on demurrer. Where a 
 demurrer to a petition in a suit in equity is sustained in the'district court, 
 the cause may be taken by appeal to the Supreme Court. 
 
 This was an appeal from Flatte county. The cause was 
 heard below before Post, J., on demurrer to the petition, and 
 judgment rendered against the plaintiff. The facts necessary 
 to an understanding of the case are stated in the opinion. 
 
 S. S. McAllistee, for appellant. 
 
 "Whitmoybe, Geeeaed & Post, for appellees. 
 
 Maxwell, J. 
 
 This is a suit in equity for the rescission of a contract on 
 the ground of fraud. The petition alleges that "the defend- 
 ant falsely and fraudulently stated and represented to the 
 plaintiff, that after the plaintiff had left said mining district 
 (on Deadwood creek, Dakota Territory), that he had 'jumped' 
 and taken the claim aforesaid, whereby he was at that time 
 the lawful owner thereof, according to the mining laws of 
 said district, all of which statements and representations were 
 false, fraudulent and untrue, in tliis, to wit: that the said 
 
 ^Byard v. Holmes, 6 M. R. 657* 
 
112 Fkaud. 
 
 defendant was not at any time the lawful owner of said claim 
 or any interest therein according to the mining laws of said 
 inining district." 
 
 It also appears from the petition that the plaintiif had pre- 
 viously owned one fourth of the mining claim in question, and 
 the defendant, Baker, claiming to be the owner of the entire 
 claim had conveyed to him by quitclaim deed three fourths of 
 such claim. It is not stated in the petiLion who was in pos- 
 session of the claim at the time of the execution of the deed. 
 
 That a contract procured by fraud will be rescinded at the 
 suit of a party defrauded is well settled. But in such action, 
 the particular and precise circumstances whicii constitute the 
 alleged fraud must be stated in the petition. It is not enough 
 to allege that a party by false and fraudulent representations 
 induced another to enter into a contract, but he must state 
 the facts on which he bases his claim for relief. 
 
 Tiie allegation in the petition tliat the " defendant was not 
 at any time the lawful owner of said claim or any interest 
 therein, according to the mining laws of said mining district " 
 is not such a statement of facts as will authorizn this court to 
 rescind the contract. The judgment of the district court 
 therefore must be affirmed. 
 
 The action was properly brought into this court by appeal. 
 "Where a demurrer to a petition in suit in equity is sustained 
 the case may be appealed to this court. In Stewart v. Carter, 
 i Neb. 564, the. petition contained two causes of action, one 
 legal and one equitable. The cause whs dismissed by the dis- 
 trict court on tlie ground of misjoinder of causes of action. 
 In such case it was held that tlie case should be brought in- 
 to this court by petition in error. 
 
 Judgment affirmed. 
 
Banta v. Savage. 113 
 
 BaNTA v. SAVAGfE. 
 
 (12 Nevada, 151. Supreme Court, 1877.) 
 
 False pretense of irrigating facilities— Appurtenances— Constructive 
 ad^-nissions in pleading. Defendant had sold to plaintiff a''ranch. 
 Plaintiff brought action for damages, alleging that defendant had rep- 
 resented that all the waters of Thomas creek "belonged to him to use 
 and appropriate as his own." Defendant denied making the represen- 
 ta ions, and further averred that the deed executed to consummate the 
 sale did not convey any water rights, either in the description or under 
 the word "appurtenances'': Held, that this latter defense was an 
 admission by the deiendant that the waters of Thomas creek were not 
 appurtenant to the ranch, and precluded him from ahowinef that plamtiff 
 had lost th^ use of the water through the trespasses of other parties in 
 diverting it. 
 
 ' Materiality— Opinions — Facts. False representations do not amount to 
 fraud unless they are made as to material facts, nor do opinions ex- 
 pressed make a party liable; whether statements were intended as mat- 
 ters of opinion or as averments of facts is for the jury. 
 
 Conversations and conduct. The defendant had taken plaintiff over the 
 land, crossed the streams in controversy and the diich, impressing the 
 fact that the irrigation facilities were complete: Held, that the con- 
 duct, as well as the conversations, was to be considered by the jury in 
 determining the question of fraud. 
 
 ^ Caveat emptor not applied to active fraud. A vendor may be silent and 
 be safe; but he may not by acts or words lead the buyer astray. 
 
 Appeal from the District Court of the Second Judicial Dis- 
 trict, Washoe County. 
 
 The facts are sufficiently stated in the opinion. 
 
 E. M. Claeke, for appellant. 
 
 I. The court erred in denying the second instruction asked 
 by the defendant. What defendant expressed was a mere 
 opinion for which he is not responsible in law: 2 Pars, on 
 Cont., 275-76, notes j k; 1 Story on Cont, Sec. 637; Longx. 
 Woodman, 58 Maine, 52; Holhrooh v. Oonner, 60 Maine, 
 578; Cooper v. Lowering, 106 Mass. 77; Mooney v. Miller, 
 102 Mass. 217. 
 
 II. The court erred in denying defendant's fourth instruc- 
 tion. If the water of Thomas creek below the Bowker ranch 
 
 1 Clapham v. ShilHto. 6 M. R. 432 ; Gordon v. Biifhr. 105 U. S. 553. 
 
 2 Bowman v. Sates, 6 M. R. 'i6'i. 
 
 VOL, VIE. — 8 
 
114 Fkaud. 
 
 in fact belonged to the Geller ranch, and the plaintiff suffered 
 the farmers above to divert it, and deprive him of its use, then 
 he can have no actiofl. It was not the defendant's duty to 
 make the water flow to plaintiff's land or to protect his estate 
 against trespassers. 
 
 III. The court erred in denying defendant 's fifth and giv- 
 ing plaintiff's first instruction. The answer is not an admis- 
 sion that the waters of Tho-nas creek do not belong to the 
 Geller ranch; because Thomas creek is a natural watercourse 
 and as such is not " appurtenant" but " parcel " of the land: 
 Vansickle v. Haines, 7 Nev. 266; Angell on "Watercourses, 
 Sees. 6, 8, 9, 92. 
 
 Furthermore, the cause was tried upon the theory that it 
 was a vital issue whether Thomas creek belonged to the ranch 
 or not, and upon this issue proofs were admitted and argu- 
 ments made; and the rule established after the case was 
 closed, and when too late to amend, was a surprise and injury 
 to the defendant which the court ought not to tolerate. 
 
 -•O' 
 
 Ellis & King, for respondent. 
 
 I. The declaration of the defendant to the plaintiff, that 
 there was water enough or plenty of water to irrigate the ranch 
 at any time, or to flood the ranch in two hours, was not tlie 
 mere expression of an opinion. There is notliing problemat- 
 ical or conditional in it. Tlie existence of a fact was the sub- 
 ject of conversation and of inquiry; that fact was the most 
 natural one to be ascertnined. Upon the existence of a state 
 of facts, as by the defendant asserted, a bargain was to be ef- 
 fected. That state of facts was not only asserted to exist at 
 all times, but was then illustrated by defendant. 
 
 In all respects this declaration is unlike the giving of a mere 
 opinion. It is not the language of ^^ puffing": 1 Story on 
 Contracts, Sec. 637, note 2, and cases cited; as to whether this 
 was merely the expression of opinion, 18 Vt. 176; 1 Story on 
 Contrao's, Sec. 6.36, note 3, and cases cited; 1 Parsons on 
 Contracts, 578. 
 
 II. The court did not err in refusing the fourth instruction 
 of t.he defendant, which is assigned as error. The pleadings 
 settle this question. It is asserted in the answer that the 
 
Banta v. Savage. 115 
 
 waters of Thomas creek do not belong to the Geller ranch, so, 
 also, the complaint alleges. There is in the answer no denial 
 of this allegation in the complaint: 15 Cal. 638; 12 Gal. 403. 
 As to the admissions in the answer, and their effect against 
 general denials therein contained: Fremont v. Seals, 18 Oal. 
 434. 
 
 By the Court, Hawley, C. J. 
 
 This is an action to recover damages for alleged false and 
 fraudulent representations of and concerning certain water 
 rights, privileges and appurtenances, represented by defend- 
 ant as belonging to the Geller ranch. Tiie facts material to 
 be considered, as testified to. by plaintiff, may be briefly stated 
 as follows: 
 
 The plaintiff, Banta, came to Washoe county a stranger, 
 desirous of purchasing a farm; Hearing that the defendant, 
 Savage, wished to sell the land known as the " Geller ranch," 
 he went to see him, and after making known his errand, the 
 defendant exhibited his title papers and said that " all the 
 waters of Thomas creek below the Bowker ranch belonged to 
 the Geller ranch." In proof of this statement he read the deed 
 from Geller to him, and called plaintiff's particular attention 
 to this clause: "The party of the first_,part herein conveying 
 to the party of the second part all his right, title and interest 
 in and to the water of the Thomas creek, after the same leaves 
 the ranchknown as the Bowker ranch." The parties then went 
 upon the land and continued talking about the water for irriga- 
 tion. The defendant told plaintiff " there was water enohgh 
 to flood the ranch in two hours at any time." 
 
 After these statements the defendant conducted plaintiff to 
 Dry creek (the plaintiff supposing it from previous conversa- 
 tions to be Thomas creek), and pointed out a ditch leading 
 from a dam in the creek, which he said conducted the water 
 to the ranch, l^o water was running in the ditch, it being 
 out of repair. There were about seventy-five inches of water 
 running in the creek, which the defendant said would increase 
 when the farmers above began to use water for irrigation from 
 the Truckee river. Dry creek is not upon the land sold to 
 plaintiff; Thomas creek is. 
 
116 Fkaud. 
 
 In traveling over the land the parties crossed Thomas creel< ; 
 there was no water running in it at the time. Plaintiff did 
 not know that it was Thomas creek, and thedefendaut did not 
 point it out as such. 
 
 The plaintiff,, relying upon the representations of defendant, 
 that there was water enough belonging to the land to irrigate 
 it, bought tiie proDerty for forty-five hundred dollars. The 
 deed from defendant to plaintiff conveys the laiid "and appnr- 
 tenances," but does not mention any water, water rights or 
 privileges. 
 
 The testimony upon the part of plaintiff, at the trial, tended 
 to show that all the representations made by defendant wore 
 false; that defendant knew them to be false; that the plaintiff 
 was induced to piirchase the land, believing them to be true, 
 and that he had been damaged in consequence thereof. 
 
 TJie jury found a verdict in favor of the plaintiff for six 
 hundred dollars, and defendant appeals. 
 
 Upon the trial defendant introduced evidence tending \o 
 prove that the waters of Tliomas creek below the Bowker ranch 
 did belong to the Geller ranch, and that tlie farmers above 
 the Geller ranch had diverted the water and deprived the 
 plaintiff of its use. But the court, at the request of plain tifi''s 
 counsel, notwithstanding the fact that such evidence had been 
 introduced without objection, instructed the jury "that the 
 parties by their pleadings in this action admit that the waters 
 of Thomas creek do not belong to and are not appurtenant to 
 the Geller ranch or the land described in the complaint," and 
 refused to give the fourth and fifth instructions asked by de- 
 fendant. "We think the action of the court in this rep]iect 
 was correct. 
 
 It is alleged in the complaint that the defendant roj)resented 
 that the waters of said Thomas creek " belonged to him, to use 
 and appropriate as his own at all times for irrigation upon 
 said ranch," and that the right and title thereto was in him. 
 It is averred that said representations about said water 
 and the use thereof, and the ownership thereof, were false and 
 fraudulent, and were made by defendant to deceive plaintiff 
 and to induce him to purchase said ranch. 
 
 The defendant in his answer denies that he ever made nny 
 snch representations, and for affirmative matter alleges: "That 
 
Banta v. Savage. 117 
 
 at the time mentioned in the complaint, and for the considera- 
 tion therein mentioned, he bargained with the said plaintiff to 
 sell him the Geller ranch and other land described in the 
 complaint, and gave him (plaintiff) a quitclaim deed or deeds 
 t.ierefor; that no water, water rights or privileges of any 
 kind were mentioned in said deed or deeds to plaintiff" nor 
 were they appurtenances of said ranch . or lauds, defendant 
 thereby' selling- "the right, title and interest in and to said 
 lands which he himself had, and that plaintiff took and could 
 take no other." 
 
 After a Ciireful examination of all the averments in the com- 
 plaint arid answer, which are unnecessarily ■ lengthy and very' 
 carelessly- drawn, we are of opinion that the plaintiff, un- 
 der the pleadings, was not required to offer any proof that the 
 waters of Thomas creek did not belong to or were not appur- 
 tenant to the Geller ranch, and that the defendant was 
 estopped by the averments and admissions in his answer from 
 relying upon any siich defense; 
 
 As the defendant did not ask leave of the court to amend 
 his answer in this respect, he must be bound by his own pos- 
 itive averments: Blankman v. Vcilleja, 15 Ca,]. 64:5. 
 
 It follows, therefore, that the court did not err in giving 
 the first instruction asked -by plaintiff^ andi refusing to give 
 the fourth and fifth instructions asked by defendant. 
 
 The court did not err in refusing to give the second in- 
 struction asked by defendant. It reads as follows: " The jury 
 are instructed that no representations, however false, alnount 
 to a fraud in law unless it be of a fact which fact is material 
 to the contract or transaction; that the mere exprfession of aa 
 opinion which opinion di'tes not involve the assertion of a 
 fact, although the opinion be incorrect, will not make the 
 person expressing the opinion liable in an action for false ■ 
 and fraudulent statements; and that the statements alleged 
 to have been made by Savage to Banta, to wit, that there was 
 water enough, or plenty of water, to flood or irrigate the land, is 
 not such a statement as will support this action or entitle the 
 plaintiff to recover, if, in fact, such statement was made and is 
 false." 
 
 The first and second elanses in the instruction are correct, 
 but the last is erroneous in this: that it infringes upon the 
 
118 Fbaud. 
 
 province of the jary, whose duty it was, under all the facts and 
 circumstances of this case, to decide whether the representa- 
 tions as made by defendant were intended as the statement 
 of a fact, and wliether they were so received and acted upon 
 by defendant, or were mere expressions of opinion. 
 
 Story, in his work on Contracts, in discussing the various 
 questions presented by the misi-epresentations of the vendor, 
 lays down the rule as follows: "If the seller fraudulently 
 misrepresents facts, or states facts to exist which he knows 
 not to exist, his fraud would vitiate the contract, provided the 
 misstatements were in respect to a material point." (Section 
 636.) But where a statement is not made as a fact, but only 
 as an opinion, the rule is quite different. Thus a false repre- 
 sentation as to a mere matter of opinion * * * does not 
 avoid the contract. * « * Ordinarily, a naked statement 
 of opinion is not a representation on which a buyer is legally 
 entitled to rely, unless, perhaps, in some special cases where 
 peculiar confidence or trust is created between the parties. 
 The ground of this rule is, probably, the impracticability of 
 attempting to discover by means of the rules of law the real 
 opinion of the party making the representation, and also be- 
 cause a mere expression of opinion does not alter facts, thougii 
 it may bias the judgment. Mere expressions of opinion are 
 not, therefore, considered so tangible a fraud as to form a 
 ground of avoidance of a contract, even though they be 
 falsely stated. * * * Yet, wherea repfesentation is made, 
 going to the essence of a contract, the party making it should 
 be careful to state it. as an opinion, and not as a fact of whicli 
 he has knowledge, or he may be liable thereon. The question 
 wliether a statement was intended to be given as an opinion, 
 and was so received, is, however, one for jury to detenriine, 
 upon the peculiar circumstances of tlie case, Eut whenever 
 a belief is asserted, as in a fact which is material or essential, 
 and which the person asserting knows to be falsej and tlie 
 statement is made with an intention to mislead, it is fraudu- \ 
 lent and affords a ground of relief." (Section 637.) 
 
 Now, in this case, it was not only the duty of the jury to 
 consider all the statements made by tlie defendants while upon 
 the ranch, concerning the water, but they were also authorized 
 to take into consideration his conduct as well as his represeuta- 
 
Getty v. Devlin. 119 
 
 tions, and to deterihine from all the facts and circumstances 
 whether or not his representation " that there was water 
 enough to flood the ranch in two hours," was made as a mere 
 expression of an opinion, or was a statement of a fact that was 
 calculated and intended to deceive and mislead the plaintiif. 
 "The common law does not oblige a seller to disclose all that 
 he knows which lessens the value of the property he would 
 sell. He may be silent, leaving tlie purchaser to Inquire and 
 examine for himself, or to require a warranty. He may be 
 silent and be safe; but if he be more than silent, if by acts, 
 and certainly if by words, he leads the buyer astray, inducing 
 him to suppose that he buys with warranty, or otherwise pre- 
 venting his examination or inquiry, this becomes a fraud, of 
 which the law will take cognizance. The distinction seems 
 to be, and it is grounded upon the apparent necessity of leav- 
 ing men to take some care of themselves in their business 
 transactions, the seller may let the buyer cheat himself ud 
 Ubitv/m, but must not a,etively assist him in cheating him- 
 self." (1 Par. on Con. 578.) 
 
 The second instruction asked by plaintiff and given by the 
 court is unobjectionable. 
 
 The judgment of the distriet court is affirmed. 
 
 ' Getty et al. v. Devlin et al. 
 
 (70 New York, 504. Court of Appeals, 1877.) 
 
 ^Sellers pretending to be buyers. Owners of land who procure a sale by 
 falsely pretending that they are joint purchasers with others, all sub- 
 scribers to a common scheme, are liable in equity to account to the real 
 purchasers for the profits realized by the sale over and. above the origi- 
 nal cost. 
 
 Decoy subscription— Parties to bill for accounting. Where such sale 
 was effected by the owners joining with others as common subscribers, 
 the owners marking their own subscriptions and certain decoy subscrip- 
 tions as paid, while in. fact the only money really paid was by the sub- 
 scribers who were ignorant of the facts, it was held, that all the sub- 
 scribers were proper parties to the suit for an accounting; and that the 
 
 , 'Same case on former appeal, 7 M. R. 29. 
 "Jackson V. Allen, 7 M. E. 127; Ferguson v. Hillman, 55 Wis. 181. 
 
120 , FllADD. 
 
 action in the name of two of the bona fide subscribers in their own right 
 and as assignees of other bona fide subscribers against the owners of the 
 property and ail the other subscribers, both bona fide and fictitious, 
 as defendants, should be sustained; but that if the claim were to re- 
 cover the gross amount paid by the subscribers there would be a mis- 
 joinder. 
 Associates in fraud liable for each other's receipts. One of the owners 
 having received all the subscription money and divided it among his 
 associates, it was held, that his legal representatives were liable, not 
 only for the proportionate share retained by him, but for that distrib- 
 uted among his associates. 
 
 These are cross-appeals by plaintiffs and by defendants, the 
 executors of Daniel Devlin, deceased, affirming a judgment in 
 favor of plaintiffs and certain of the defendants of the General 
 Term of the Supreme Court in the first judicial department, 
 entered upon a decision of the court, on trial without a jury. 
 (Reported below, 9 Hun, 603; reported on a former appeal, 
 54 JSr. Y. 403.) 
 
 This was an action for equitable relief. The complaint al- 
 leged and the court found in substance, that prior to February 
 22, 1865, Daniel Devlin, deceased, whose executors are de- 
 fendants herein, with defendants Bryan, Askenburgh and At- 
 wood, were the owners of certain interests in oil lands in the 
 State of Ohio, which had cost them the sum of $26,200. "With 
 a view of disposing of the same at a greatly enhanced price, 
 and in pursuance of a scheme devised for that purpose, they 
 caused to be prepared the following instrument: 
 
 "We the undersigned, do hereby subscribe and agree to pay 
 fortiiwith the amounts set opposite our names, for the pur- 
 chase of property in "Washington, Monroe and Athens coun- 
 ties, Ohio, as per memorandum annexed, being leasehold in- 
 terest in 745 acres and 207 acres in fee, at the sum of one 
 hundred and twenty-five thousand dollars ($125,000), pay- 
 ments to be made to Daniel Devlin, Esquire, at Broadway 
 Bank, trustee for the purchasers, in whose name the title to 
 property shall be taken; said property to be put into an as- 
 sociation for development upon such terms as the subscribers 
 may elect after this subscription is completed. 
 
 " New York, 22d February, 1865." 
 
 Appended to which was a description of the property. Each 
 of the owners subscribed $5,000, but they did not intend to 
 and did not pay their subscriptions. 
 
Getty v. Devlin. 121 
 
 The firm of E,.- P. G-etty, composed of the present plaintiffs, 
 subscribed $5,000. The firm of J. E. Amelnng & Sons, the 
 members of which were formerly plaintiffs, subscribed $5,000, 
 and James H. Holcomb, formerly a plain tiff, subscribed $5,000. 
 The present plaintiffs having purchased the claims of their co- 
 plaintiffs, the action was, by order of the courts continued in 
 their names. The plaintiffs and their assignors were induced 
 to sign the agreement partly by representations that the 
 premises had cost $125,000, and by the fact that Devlin and 
 his associates had signed in the character of co-purchasers, 
 they not being informed and being ignorant of the facts. 
 Various other persons, who were also made defendants, sub- 
 scribed, some of them in good faith, others at the suggestion 
 of the devisers of the scheme, without- any intent on their part 
 of paying their subscriptions, and who did not pay. Plaintiffs, 
 their assignors, and the other honafide snbscribers, believing 
 the other subscriptions to have been made in good faith, paid 
 their subscriptions to Devlin, who divided the same with his 
 associates, he retaining $17,500. 
 
 In March, 1865, a meeting of the subscribers was had, and 
 steps taken to organize a corporation, wliich was subsequently 
 organized under the name of the Federal Oil and Coal Com- 
 pany, with a nominal capital of $1,000,000, divided into shares 
 of ten dollars each. The property was conveyed to the company 
 for the capital stock, which was transferred to Devlin in trust 
 for the subscribers. Of the stock, 20,000 shares was reserved 
 for working capital, and the balance distributed among the sub- 
 scribers, fictitious as well as bona fide, in proportion to the 
 sums subscribed by each. After discovery of the fraud, plaint- 
 iffs and their assignors executed and delivered to the execu- 
 tors of Devlin (he having died before such discovery) releases 
 of the shares of stock transferred to them, and demanded re- 
 payment of their subscriptions. 
 
 As conclusions of law, the court found that the executors of 
 Devlin and his three associates were chargeablfe with the 
 amounts paid by the plaintiffs and their assignors, and others 
 of the hone fide subscribers, less their proportionate share of 
 the actual cost of the property. 
 
 The defendants who were sought to be chara-ed, demurred 
 to the complaint, upon the ground of misjoinder of parties, 
 
122 Feaud, 
 
 plaintiffs and defendants, and misjoinder of cause of action* 
 The demurrer was overruled. Judgment was entered in ac- 
 cordance witli the findings. 
 Farther facts appear in the opinion. 
 
 F. N. Bangs for the plaintiffs. There is no misjoinder of 
 parties or causes of action : Tradesman's Bank v. Merritt, 
 1 Paige, 302; Hallett v. Eallett, 2 Id. 15; Bailey v. Inglec, 
 Id. 278; Robinson v. Smith, 3 Id. 231; Glarkson v. DePeyster, 
 Id. 320; Bailey v. Burton, 8 Wend. 339; Dean v. Chamber- 
 lam, 6 Diier, 691; 8ima/rY. Oanaday, .53 K Y. 305. "Whether 
 Daniel Devlin personally perpetrated any actual fraud or not, 
 it was competent to show that plaintiffs had been induced by 
 the fraud of others, to place money in his hands, for which he. 
 gave no equivalent: Bridgman v. Oreen, 2 Yesey, 627: Les- 
 lies. Wiley, 47 K Y. 650; Tan Alen v. Am. Bank, 52 Id. 
 1 ; Life Insurance Oo. v. Mineh, 53 Id. 1 44-; Disbrow v. Mills, 
 1 Hun, 132; Beeoher v. Gillespie, 6 Bened. 356; Seymour v. 
 Wilson, 14 ]Sr. Y. 570; Qetty v. Devlin, 54 Id. 411; .ff. R. Co. 
 V. Boody, 56 Id. 461; Blake v. R. R. Co., Id. 491; Hitchens 
 V. Cosgrove, 4 Russ. 562; Conybeare v. N. B. L. Co., 1 DeG. 
 F & J. 578; Blake's Case, 34 Beav. 639; Rex v. Barnard, 7 
 0. & P. 784; Foss v. Rarbottle, 2 Hare, 461 ; Rollins v. Wiclc 
 ham, 3 DeG. & J. 304; MoLanahan v. Ins. Co., 1 Pet. 185; 
 Peter v.' Wright, 6 Ind. 183. Devlin and his executors were 
 liable to account to plaintiffs: Duval v. Covenhoven, i Wend. 
 5Q5;,McCrea v. Purmort, 16 Id. 460; Dias v. Brunell, 24 
 Id. 9; N. Y. Ins. Co. v. Roulet, Id. 505; Curtis v. Smith, 6 
 Blatch. 543; Sortore v. Scott, 6 Lans. 276; Dill v.McGehee, 34 
 Ga. 438; Perry on Trusts, § 166; Mayne v. Griswold, 3 Sandf. 
 463; Flagg v. Mann, 3 Sumn. 186; Penneman v. Munsov, 
 26 Vt. 164 (2 E. S. 113, §§ 2, 3, 5.) Plaintiffs were entitled to 
 recover the whole amount of their own subscriptions and those 
 of their assignors: Conkey v. Bond, 36 K Y. 428; Cleveland 
 v. Pollard, 37 Ala. 556. The contract was rescindable for 
 non-performance: Lawrences. Van Deventer, 51 N. Y. 676; 
 Mason v. Bovet, 1 Den. 69; Gray v. W. T. c& S. 0. Co., d 
 Ran, 392; H'lmmond v. Pennock, 61 N". Y. 145; 43 Id. 452; 
 55 Id. 211; Horner v. Ranks, 22 Ark. 572. 
 
Getty v. Devlin. 123 
 
 John E. DEVBLiN,for the defendants. The gravamen of the 
 action was fraud, and not a viplated contract: 54 N. Y. 412, 
 413, 416; Degraw v. Elmore, 50 Id. 1; Ross v. Mather, 51 
 Id. 108; Barnes v. Quigley, 59 Id. 265; Price w. Eeyes, 62 
 Id.^78, 3S2; Oobh v. Hatfield,^^ Id. 533; Massony.Bovet, 
 
 1 Den. 69. There was a misjoinder of parties plaintiff: 1 
 Chit. Pidgs., 11-17; Jones v. Felch, 3 Bosw. 63; Wood v. 
 Perry, 1 Barb. 114; Mead v. Mali, 15 How. 347; Calkins 
 V. Smith, 48 ISr. T. 614; Allen v. City of Buffalo, 38 I4. 280; 
 Day V. Potter, 9 Paige, 645; Arthur v. Oriswold, 60 N. Y. 
 145; Code, § 119. The action could only be maintained and 
 the judgment upheld on the ground of a joint liability on the 
 part of tlie defendants: 1 Chit. Pldgs., 97-8; Graham's Pr., 
 62; Buohman 7. Brett, 35 Barb. 596; Boyce v. Brown, 7 Id. 
 80; Un. Bk. v. Mott, 27 K Y. 636; Gerey. Clarke, 6 Hill, 
 350; Voorhis v. Childs, 17 IS". Y. 354; BioKter v. Poppen- 
 hausen, 42 Id. 373; Oetty v. Binsse,4:9 Id. 385; Lawrence 
 V. Trustees, etc., 2 Den. 677; Bloodgood v. Bruen, 8 N. Y. 
 371. Tiie cause of action was not assignable: Zabriskie v. 
 <Swiii?A, 13 K. Y. 322; PeojjZe v. Tto^a C. P., 19 Wend. 75; 
 CDownel v. Seyhert, 13 S. & R. 54-56 ; Shoemaker v. Kedy, 
 
 2 Dal. 213. The parties to the agreement not being copart- 
 ners can not sustain any action in equity against the execu- 
 tors for a partnership accounting: Salter v. Ham, 31 N". Y. 
 321; Story on Part., §§ 81-91; 3 Kent's Com., 25; Porter v. 
 McClure, 15 "Wend. 192; Sage v. Sherman, 2 N. Y. 427; 
 Chester v. Dickerson, 54 Id. 1. Tliere being a plain, com- 
 plete and adequate remedy at law, an action of an equitable 
 nature could not be maintained: Lynch v. Willard, 6 J. Cli. 
 343; Minium v. F. L. cSi T. Co., 3 N. Y. 498; Livingston, 
 V. Harris, 11 Wend. 336; Perrine v. Striker, 7 Paige, 602; 
 Allerton v. Belden, 49 IT. Y. 373, 377; Bradley y. Bosley, 1 
 Barb. Ch. 125; Shepard v. Sandford, 3 Id. 127; Brookman 
 V. Hamill, 46 N". Y. 636. Devlin was not such a trustee as 
 would bring him within the equitable jurisdiction of the 
 court: 4 Kent's Com. 305; F. L. cfe T. Co. v. Carroll, 5 
 Barb. 643; Fisher v. Felds, 10 J. E. 506; Johnson v. Fleet, 
 14 Wend. 176. Plaintiffs having known the facts before the 
 consummation of the transaction, and then afterward continu- 
 ing and completing it,, waived the damnum and have no 
 
124 Fraud. 
 
 cause of action: Sar. c& S. B. B. Co. v. Bow, 24 "Wend. 74; 
 Minturn v. Main, 7 N. Y. 220; Bruce v. Dmewpm^ 3 
 Keyes, 472. 
 
 Hapallo, J. * 
 
 Tlie general question of the rights of the plaintiffs to recover 
 in this action against the executors of Devlin and against the 
 defendants, Bryan, Askenburgh and Atwood, was decided by 
 the commission of appeals when the case was before that 
 tribunal on the plaintiffs' appea;l: 54 IT. Y. 403. The only 
 parties now appealing are the executors, and^ the leading facts 
 are substantially the same as recited in the opinion of the 
 court on the former appeal.' We do not propose to review 
 that decision, and it must stand as the law of the case. 
 
 The commission of appeals then held, in substance, that 
 Devlin and the three other defendants named, by signing and 
 issuing the subscription agreement, dated February 22, 1865, 
 held out to those to whom itsiiould be exhibited for the pur- 
 pose of inducing them to become subscribers, that they de- 
 signed to become joint purchasers, with those who should 
 unite in the agreement, of the lands and leasehold estates 
 described in the list annexed, at the price of $125,000. That 
 Devlin undertook to receive the sums subscribed as trustee 
 for the purpose of applying them to the payment of the pur- 
 chase money. That under these circumstances the four 
 defendants named occupied such a relation to the persons who 
 in good faith agreed to unite with them in the purchase on 
 the terms proposed, as precluded them from making a profit 
 out of their associates by being themselves the vendors of the 
 property, which they had acquired for a much smaller sum 
 than $125,000; and that they were bound to account to those 
 who, in ignorance of the facts, had subscribed and paid in their 
 contributions on that basis, for the profits mgide by the pur- 
 chase of the property and its sale to the joint concern. 
 
 Daniel Devlin, whose executors are the only appellants, re- 
 ceived the whole sum paid in by hcna fide subscribers upon 
 tlie trust expressed in the agreement of February 22, 1865, to 
 take the title of the property in his own name for the benefit 
 of the purchasers, and put it into an association for develop- 
 
Getty v. Devlin. 125 
 
 ment upon suoli terms as the subscribers iniglit elect after tlie 
 subscription should be completed. At this time he was the 
 owner of one half interest in the leasehold property which he 
 had , purchased of the defendant, Bryan, for $8,125. He 
 headed the subscription list appended to the agreement, witli 
 his own signature for |5,000, although, as found by the court, 
 he did not at the time of signing intend to payiiis subscrip- 
 tion, or any sum, toward the purchase of the property, and 
 the sums received by him from lonajide subscribers he paid 
 over to the defendants, Bryan and Askenburgh and Bryan, 
 less the sum of $17,500, which he retained to his own use. 
 
 The findings sufficiently show that Devlin, at the time of 
 receiving the payment of these subscriptions and paying them 
 over, was aware of the facts relating to the purchase of the 
 property, and that he did not disclose them to the parties who 
 paid their subscriptions, and it is expressly found that the in- 
 tent and design of Devlin, Bryan and Askenburgh in signing 
 and acting under the agreement of February 22, 1865, was to 
 effect a sale of the property therein described, at a profit to 
 themselves in excess of the profits which would be realized by 
 the other subscribers, and that in collecting the payments of 
 money under the agreement it was their intent and design to 
 distribute the same among themselves and the defendant At- 
 wood, as sellers of the property at a profit, which intent they 
 concealed from the plaintiffs and other subscribers. 
 
 It is also foimd that the actual cost of the property to the 
 defendants, Devlin, Askenburgh and Bryan, up to February 
 22, 1865, was $26,200. The details of the representations by 
 which various parties were induced to subscribe, of the 
 amounts paid in, and of their distribution, etc., and of the 
 conversion of the property into the stock of an incorporated 
 company, and its distribution, etc., are set forth in the find- 
 ings; but it is not necessary to repeat them here. 
 
 There can be no doubt of the liability of the parties thus 
 selling their own property to their associates to account to 
 tliem, at least, for the profits made by such sale, nor that such 
 an accounting is a proper subject for the cognizance of a court 
 of equity. In this view of the case the demurrer to the com- 
 plaint was properly overruled. Tiie complaint certainly set 
 forth a cause of action, and the objection to the joinder of 
 
126 Fraud. 
 
 parties and causes of action were not well founded. Devlin, 
 the trustee of the fund, was clearly liable to refund to his as- 
 sociates in their due proportion, the profits he had himself 
 realized, and he was also liable for the misappropriation of 
 so much of the fund as he had paid over to those privately 
 interested witli him in excess of the actual cost of the property. 
 An accounting was necessary for the purpose of ascertaining 
 the amount of profits to be refunded, and the proportion pay- 
 able to each honafide subscriber, and to such an accounting 
 it was proper that every person interested in the result, 
 whether as liable to pay or entitled to participate, should be 
 a party. The judgment at special term proceeded upon this 
 basis, and while it held the estate of Devlin primarily liable 
 to the innocent subscribers to redistribute the fund received 
 by him on equitable principles, it also adjusted the equities 
 l?etween the estate of those who had pairticipated with the 
 testator in the profits which were to be refunded. The de- 
 fendants certainly have no right to complain of this result, 
 which merely compels them to refund the profits they have 
 obtained. The most serious question is that which arises on 
 the appeal of the plaintifi's. They claim that they were en- 
 titled to recover the whole amount paid in by them and their 
 assignors, and that the defendants against whom a recovery 
 has been had were not entitled to any reduction on account 
 of the original cost to them of the property. "We have con- 
 sidered the case in this aspect, and while acknowledging the 
 force of the argument that the plaintiffs were entitled to re- 
 scind the contract of February 22, 1865, and recover back 
 wiiat they had paid upon it, find difficulties in the way of so 
 modifying the judgment as to enforce that riirht in the pres- 
 ent action. If the action were simply to rescind the contract 
 of February 22, and recover back the payments, it might 
 be subject to the objections raised by the demurrer, and 
 other difficulties would arise in sustaining the present fudg- 
 ment. We think that substantial justice has been done by 
 the judgment as it stands. 
 
 Tiie judgment in favor of the plaintiffs for the interest in 
 the fund assigned to them by the former plaintiffs, Ameluno- 
 and Holcomb, was, we think, correct. There can be no doubt 
 that such an interest is assignable. "We also think that the 
 
Jackson v. Allen. 127 
 
 judgment in favor of the defendant Donnelly, and the 
 defendants Henffer and Toel, should be sustained, on the 
 grounds stated in the opinions at general term. 
 
 The judgment should be aiBrmed on all the appeals, with- 
 out costs as between the plaintiffs and the executors of Devlinj 
 and with costs to the defendants Donnelly, Henffer and Toel, 
 against the executors, payable de bonis, etc. 
 
 All concur. ^ 
 
 JMdgtnent affirmed. , 
 
 jACKSOIir ET UX. V. Allen". 
 
 (4 Colorado, 263. Supreme Court, 1878.) 
 
 ' Agfent dealing' on two contracts— one on which to sell, the other on 
 which to settle — Duress. An agent for the pftrctiase of a mine tooli 
 from the owners two title bonds. One represented the terms of sale as 
 $1,500 cash, and $4,000 to come out of the proceeds of working:. The 
 other called for $4,000 cash, and $4,000 out of the proceeds. The sale 
 was consummated between the agent and the seller on the first bond, 
 but the agent had procured from his pnncipal the $4,000 cash, repre- 
 senting the sale to be on the latter, and concealing the existence of the 
 former bond. Upon discovery of the fraud he pave a secured note to 
 his principal for an agreed balance. In the settlement the principal 
 told him he was liable to prosecution for fraud: HeU, that the original 
 transaction was a fraud upon the principal; 2, that there was no duress 
 in the settlement, and 3, that it was not a ease where the court would 
 inquire whether the precise sum mentioned in the note was the sum due. 
 
 Beview of evidence in chancery case. In a suit in chancery where the 
 evidence has been taken before a master, the appellate court will ex- 
 amine into the entire record, and affirm or reverse the decree of the 
 court below upon principles of equity, as the facts will justify. 
 
 majority of female infant. A female infant, by statute of Colorado, at- 
 tains her majority at eighteen, and at that age she may execute a 
 promissory note. 
 
 Appeal irom District Court of Arapahoe County. 
 The facts are sufficiently stated in the opinion. 
 
 Mr. S. P. Rose and Mr. E. P. Haeman, for appellants. 
 ' Collins V. Case, 1 M. R. 91; 'Borris v. Tayloe[\ M. R. 383. 
 
128 Fkaud. 
 
 Messrs. "Wells, Smith & Maoon, for appellee. 
 
 Thatohee, C. J. 
 
 The bill in this case, which was dismissed in the court be- 
 low, seeks to restrain the negotiation and prays for tlie can- 
 cellation of two certain promissory notes made by tiie com- 
 plainants to the defendant. The chief grounds relied upon 
 are the alleged want of consideration, and that tiieir execution 
 was procured by fraud and duress practiced by the defendant. 
 There is no evidence tending to show, however remotely, tliat 
 Cora E. Jackson was coerced into the signing of the notes. 
 At the request of her husband, she voluntarily joined in their 
 execution. Mr. Jackson comes into a court of equity with 
 unclean hands, convicted by his own evidence of a deliberate 
 attempt to defraud the appellee. For the good name of Colo- 
 rado it is to be earnestly hoped that an attempt to justify 
 fraudulent practices by pleading the custom of the country 
 will neverf .-eceive the sanction of any of our judicial tribunals. 
 
 The appellee, and one George Allen, during a visit to 
 Boulder in July, 1875, examined " Victoria Lode No. 2," and 
 were well pleased with it. In an interview with Frank P. 
 Jackson he proposed to the appellee and George Allen that 
 they three should purchase the mine jointly. This proposi- 
 tion was acceded to. Upon the representation of Jackson 
 that he could more advantageously negotiate the purchase of 
 the mine, he was authorized to buy for their joint benefit at 
 any sum not exceeding $4,500 in all, and not requiring a cash 
 payment at the time of purchase exceeding $4,000. Jackson, 
 for a purpose which subsequent events make plain, took two 
 bonds for deeds from the owners of the mine, "one of said 
 bonds (to follow the allegations of the bill) being for the sum 
 of fifteen hundred dollars ($1,500) cash, and four thousand 
 dollars to be paid out of the net proceeds of the mine, and tlie 
 other calling for four thousand dollars (|4,000) cash, and four 
 thousand dollars in the net proceeds of the mine." Tlie last 
 mentioned bond was shown to George Allen secretly, and 
 without the knowledge of either George Allen or appellee as 
 to the price paid, the purchase had been made by Jackson on 
 the basis named in the first bond, viz.: $1,500 cash in hand, 
 
Jackson v. Allen. 120 
 
 and $i,000 additional to be paid out of net proceeds. Jackson 
 drewa checli for $4,000 on First JJifational Bank of Denver^ 
 payable to the order of J. "W. Oorser (one of the mine owners), 
 and to be charged to the account of Harrison Allen. This 
 check was indorsed both by Corser and Jackson, aiid dated 
 July 22, 1875. On presentation, the check was cashed by the 
 bank out of the funds of appellee, and $1,500 of the amount 
 w^ere paid by Jackson to the owners of the mine, being the 
 only cash payment required. Jackson had the deed of the 
 entire mine made to himself, and he conveyed two thirds 
 thereof to the two Aliens. Jackson concealed from appellee 
 the fact that he had made a cash payment of only $1,500, and 
 represented that he had no money with which to pay one third 
 of .the total alleged consideration which appellee had advanced 
 for his benefit, but that he expected to receive the money in a 
 few days from Pittsburgh, Pa. He then gave his note to ap- 
 pellee payable in seven days for $1,333.33. August 2, 1875, 
 Jackson made a payment on this note of $1,200, stating at 
 the same time that he would pay the balance as soon as pos- 
 sible. 
 
 It is fairly deducible from the evidence that this payment 
 was made out of his ill-gotten gains. Here was an evident 
 attempt to defraud appellee out of $2,500. But Jackson al- 
 leges in his bill, and testifies at the hearing, that to enable 
 him to consummate the purchase of the mine, it was neces- 
 sary to call in one J. B. Shaw, a mining broker, to aid in the 
 negotiations, and that he paid Shaw $500 for his services, for 
 which he, Jackson, claims a credit. Shaw was not put upon 
 the stand. If $500 were in fact paid him for his services in 
 aiding to concoct, carry out, and conceal a perfidious scheme, 
 the ultimate purpose of which was to defraud the appellee, we 
 are aware of no principle of equity that will require the de- 
 frauded Allen to reimburse Jackson the amount he paid out 
 to his partner in guilt. If, as counsel for appellant contends, 
 it be conceded that the employment of Shaw by Jackson was 
 for a legitimate purpose, it does not appear that appellee had 
 authorized such employment or the paying out of commis- 
 sions, nor was the employment subsequently ratified. Indeed 
 the evidence conclusively shows that the fact of such alleged 
 
 VOL. VII. — 9 
 
130 Fkatjd. 
 
 employment was for about five montlis carefullj' concealed 
 from appellee. 
 
 At the time the mine was bought the former owners agreed 
 to sink the shaft twenty feet deeper than it then was, and to 
 timber it, Jackson to furnish the lumber, and they further 
 agreed to run a tunnel one hundred feet on the lode. For 
 their work they were to receive $1,400. When the work was 
 ' completed, Jackson paid the former owners of the mine 
 $1,400, as per contract. Of this sum, on account of the de- 
 velopment of the mine, and before Jackson's fraud was dis- 
 covered, appellee paid by draft August 26, 1875, $100, and by 
 draft September 29, 1875, $625. 
 
 Jackson claims a credit on account of services as superin- 
 tendent of the mine. Tlie evidence we think does not justify 
 the claim. Appellee's testimony is to the effect that for his 
 services as superintendent he was to receive $4 per day, pay- 
 able out of the ore on the dump. Jackson testifies that he 
 was to be paid for his services without regard to the value oi 
 the ore. McPherson testifies that he (Jackson) never super- 
 intended the work on the mine, " but was out prospecting and 
 looking after a contract he had let on the Standard lode." The 
 evidence convincingly shows that Jackson hauled away and 
 appropriated quantities of the best ore, of which he made no 
 account or return. 
 
 Jackson alleges in his sworn bill, and testifies at the hear- 
 ing, that for his one tliird interest in the mine, he gave appel- 
 lee his note for $1,200. He swears that nothing was said 
 about the balance, $133.33, by appellee, and furtlier, that he 
 paid the whole amount due on the note about a week after- 
 ward. 
 
 Appellee's testimony is in direct conflict with Jackson's 
 testimony on this point. Not only does appellee testify that 
 the note was for $1,333.33, that but $1,200 had been 'paid on 
 it and indorsed as a credit, but by the production of the note 
 itself, the evidence of appellee is corroborated. That the 
 court below did not give full credence to the evidence of Jack- 
 son, some parts of which were intrinsically improbable, and 
 other parts of which were proved to be absolutely, and we 
 think, willfully false, is no ground of error. To believe the 
 evidence of Jackson upon any point, unless corroborated, is a 
 
Jackson v. Allen. 131 
 
 tax upon bn'man credulity. It appears from his own testi- 
 mony that both by language and conduct, lie uttered and 
 acted falsehoods in all his transactions with appellee. In ad- 
 dition to this, as we have before seen, the falsity of some of 
 his testimony on material points at the hearing, was estab- 
 lished by indubitable proof. 
 
 Appellee, having learned, Dec. 18, 1875, of one of the for- 
 mer owners of the mine, that but $1,500 cash had been paid 
 therefor, confronted Jackson in his office at Denver two days 
 later, and demanded an explanation. Jackson confessed the 
 fraud,'but attempted to excuse himself by saying "That's 
 tlie way we do business here." He further said he thought 
 the mine would pay from the grass roots; that he aimed to 
 get his interest free of cost; that he was hard up; that he 
 wished first to get the $2,500 in his own hands, and that when 
 the mine would pay he would return it. After being detect- 
 ed he offered to make reparation as far as possible. Appellee 
 testified: "Jackson made his own figuring, and in adjusting 
 the difference between us, in settlement of the work in the 
 mine and the money wrongfully taken from me, said there 
 was $2,000 in justice due me, and asked me to take his note, 
 which proposition I accepted, and we then settled accounts. 
 I took his receipt in full and his note for $2,000 in six months, 
 at eighteen per cent, interest. I told him he was liable to 
 prosecution for fraud, but that I had no desire to prosecute or 
 injure him — simply wanted my money." This statement is 
 substantially corroborated by Gaylord C. Allen, who was 
 present at the interview and settlement. Considering the ev- 
 idence adduced at the hearing as a whole, we can not say that 
 the precise sum then due was $2,00U, but it approximated it, 
 and the parties settled upon that basis. Sufficient appears to 
 sliow that the note was not without consideration, and although 
 Jackson testified that the note was executed under threats of 
 criminal prosecution, and without consideration, the prepon- 
 derance of credible evidence, as we weigh it, does not support 
 that view. The reconveyance of one third interest in the 
 mine by Jackson to appellee, we are impelled to conclude was 
 made as security for advances to be made by appellee in the 
 future development of the mine, Jackson then being without 
 funds to contribute for that purpose. In fulfillment of this 
 
132 Fraud. 
 
 agreement to advance funds, appellee has already expended 
 between $800 and $900. 
 
 The validity of the $2,000 note Jackson subsequently ac- 
 knowledged, and promised that the same shonld be paid when 
 due. It certainly can not be claimed that he was then under 
 duress. Appellee having learned that Jackson, with a view 
 to avoid the payment of the note, had transferred all his prop- 
 erty to his wife, requested him to secure him. A check for 
 $180, which had been given by Jackson to appellee on 
 account of accrued interest, had been dishonored by the 
 bank. There were then due on note and check $2,240. 
 Appellee surrendered both note and check, and received in 
 lieu thereof two notes executed by Jackson and wife, one for 
 $1,000, due in one year, and one for $1,240, due in two years, 
 with ten per cent, interest per annum. As to whether, in this 
 last transaction, threats of criminal prosecution were made, 
 there is oath against oath, and even if Jackson was equally 
 credible, under the ordinary rule, the burden of proof being 
 with him, his case is not made out. In a chancery proceed- 
 ing where the evidence was taken by a master, an appellate 
 court will not sustain the decree of the court below, merely 
 on the ground that it is not unsupported by evidence; but will 
 examine the entire record, sift all the evidence adduced, 
 with the view of arriving at the truth. We can only weigh 
 the evidence. The witnesses neither appeared before the 
 court below nor before this court. Their manner of testify- 
 ing and their appearance upon the stand may be considered 
 by a jury, or, when the trial is to the court, by the court. But 
 here there was no such opportunity. 
 
 Carefully weighing all the evidence in the light of the rules 
 laid down by the authorities for testing its value, we are con- 
 strained to the conclusion that the decree of the court below 
 is justified by the facts and founded upon principles of equity. 
 
 It is insisted, however, that as Cora E. Jackson was not 
 twenty-one years of age when she signed the notes, that she 
 was not bound thereby. Under our laws a female attains her 
 majority at eighteen years of age: K. S., p. 348, § 8;' Ste- 
 venson V. West/all, 18 111. 209. This objection is, therefore, 
 without force. 
 
 The decree of the district court is Affirmed. 
 
 > General Stats. § 1592. 
 
Mahony Mining Co. v. Bennett. 133 
 
 Mahony Mining Co. v. Bennett. 
 
 (5 Sawyer, 141. , U. S. Circuit Court, Distriet of California; 1878.) 
 
 ^ Cancellation of frandnlent corporate lease. Where the direetors of a 
 mining corporation made a lease of the mines of the company to a nom- 
 inal party acting in the interest of a minority of the stockholders, foi 
 the purpose of securing control of the property, and to take it Out of the 
 reach of the new board aibout to be elected: Held, upon bill filed by 
 the corporation, that the lease should be canceled. 
 
 Bill in equity to set aside a lease of mines on the ground 
 of fraud, 
 
 MoAllistees & Bbewin, Stewaet, Van Olief and Heeein, 
 for complainant. 
 
 S. Heydenfbldt and Wm. H. Shaep, for defendants, 
 
 Sawtee, Circuit Judge. 
 
 This case was argued very thoroughly, and the testimony 
 was very fully read on the hearing. It is a bill in chancery 
 to set aside a lease of a mine for three years, with an option 
 to purchase at the price of two hundred and fifty thousand 
 dollars within that period. The ground alleged is that this 
 lease was made, not in the due and proper course of the busi- 
 ness of the corporation, but by a conspiracy, in fraud of the 
 rights of the majority, and in the interest of the minority,- of 
 the stockholders. The bill is filed to cancel the lease on that 
 ground. 
 
 Testimony has been introduced and arguments have been 
 made with reference to the irregularity of the election of both 
 the boards of directors claiming to represent the corporation; 
 but I do not find it necessary, in the view I take of the case, 
 to decide as to the ultimate validity of those elections; and I 
 shall assume, for the purposes ofthe decision, that the elec- 
 tion of the first board of directors, by whom the lease was 
 made, was valid. The result of that election is only impor- 
 tant, in the view I take, so far as it bears upon the question 
 [_' Meeker v. Winthrop Iron Co., 17 B'ed. 48. 
 
134 Fkaud. 
 
 as to the purpose for which this lease was made. Tliere are 
 certainly some irregularities in it, and some extraordinary 
 circumstances connected with that transaction. ^Nevertheless, 
 I shall consider those in this case only as indicating the mo- 
 tives of the actors, and tlieir bearing upon the validity, or 
 legal propriety, of this lease. 
 
 The mine seems to liave been woi'ked without any difficulty 
 up to a certain time in April, 1877. The two principal stock- 
 holders owned fifty-two hundred shares each, and there were 
 sixteen hundred shares outstanding, belonging to Sharon, 
 Bell, Sunderland and Flood & O'Brien. One of the direct- 
 ors — the director who, as 1 understand it, represented the 
 interests of Sharon, Bell, Sunderland and Flood & O'Brien — 
 resigned; and the remaining directors called a meeting of tlie 
 stockholders for the purpose of electing a new board of direct- 
 ors. This meeting was called apparently in the interest of 
 the Seligmans — one of the two large stockholders. The other 
 large stockholder, Stewart, owning an equal number of shares 
 with the Seligmans, was at the time temporarily absent on 
 business in New York, and was not notified of the calling 
 of the meeting of the stockholders. A thousand shares of the 
 stock of the company, owned by Sharon, Bell and Flood & 
 O'Brien, stood in the name of one Bush, as trustee, and were 
 voted at that meeting by him without the knowledge or con- 
 sent of the owners, who were in the city at the time; and 
 neither Sharon nor Bell was aware that his stock had ever 
 been issued, and neither had notice of the calling of the meet- 
 ing. These shares were required to constitute a majority of 
 the stock. 
 
 At that meeting a new board of directors was elected, most 
 of them, apparently, being merely nominal owners of stock, 
 holding a few shares in order to qualify them to act as direct- 
 ors. The meeting seems to have been organized and the new 
 directors elected under the management of Benjamin, acting 
 in the interest of the Seligmans; at all events, these directors 
 were elected to control the corporation; and, for the purposes 
 of this decision, I shall assume that they had authority to 
 act as directors in the usual business of the corporation. 
 
 When Stewart returned to the city within a few days after 
 and ascertained what had been done, there was disBatlijfactioii 
 
Mahony Mining Co. v. Bennett. 135 
 
 and some discnasion over the matter. Previous to this time 
 there had been no meeting of the stockholders or election of 
 directors since the first board was elected, three or four years 
 before; and as the by-laws of the corporation coVitained no 
 provision for the calling of an annual meeting, the statute 
 provides that, in such a case, the time of meeting shall be 
 the first Tuesday in June: Civil Code, Sec, 302. In case no 
 meeting is called by the board at the time appointed by law, 
 one half of the stockholders are authorized to call one: Civil 
 Code, Sees. 310, 314. The extraordinary meeting was held on 
 May 1st, a few days only over a month prior to the time 
 appointed by the statute for the annual meeting. Stewart, 
 upon ascertaining the condition of things — that the one thou- 
 sand shares of Sharon and Bell and others bad been voted 
 without their knowledge and consent — bought up these out- 
 standing shares before the first of June, and immediately 
 notified all the stockholders and the directors of the calling 
 of a stockholders' meeting in June, in the mode designated 
 by the statute. Immediately on receiving that notice, the di- 
 rectors elected on the first of May, met on the first of June, 
 and without having previously had any consultation in regard 
 to the matter, Benjamin, representing the Seligmans, being 
 the active party, it was proposed to make a lease of the prop- 
 erty to one Bennett, a brother-in-law of Benjamin; and the 
 board passed a resolution authorizing the making of the lease, 
 and the lease was thereupon made-r-the lease in question here. 
 All this was accomplished before and on the fifth of June. 
 Now the question is as to the purpose of that lease. It is 
 claimed on the one side that it was made in good faith, in the 
 interest of all the stockholders; and on the other side it is 
 claimed that it is a mere sham, gotten up for the purpose of 
 keeping the control of the mine from passing into the hands 
 of the majority of the stockholders in case they should elect a 
 new board of directors at the meeting called in June. It is 
 admitted by the principal witnesses, and by the ones particu- 
 larly active in the matter, that that was one of the purposes 
 of the lease. It is so stated in their testimony, and I think 
 no one can read that testimony witJiout being satisfied that 
 that was the moving and controlling purpose of this lease. It 
 is very manifest, to my mind, that Bennett was not the real 
 
136 Fkaud. 
 
 lessee, but was a'mere instrument in the hands of Benjarni!), 
 acting in tlie interest of the minority of the stockholderd at 
 that time. Bennett was a man not likely to take snch a lease, 
 having no sufficient means with which to carry on such an un- 
 dertaking, and not being a man of experience in mining, or a 
 person whom business toen of ordinary judij;ment and prudence 
 would be likely to intrust with such an enterprise. From the 
 testimony, it appears manifest to my mind that the money 
 paid out by him, after assuming control of the mine, was fur- 
 nished by other parties, and not by Bennett; that Benjamin 
 was still the active and contr/oUingrman as before., It is im- 
 possible, it seems to me, after reading the testimony in the 
 case, to come to the conclusion that the transaction was really 
 a bona fide lease to Bennett, for his own purposes. Bennett 
 was but the instrument, the shadow of the real parties seeking 
 to withdraw the control of the mine from the board of directors 
 about to be elected by the majority of the stockholders. 
 
 Now it may well be; that in making such a lease the parties 
 represencing the minority may have believed that the interest 
 of all the stockholders was advanced ; but in this case, where this 
 lease is given with an option to purchase the mine for two hun- 
 dred and fiftythousand dollars, it is certainly a remarkable fact 
 that the man who was active in the matter should have been 
 Benjamin, both before and after the lease. Manifestly, the 
 controlling purpose was to circumvent the other stockholders, 
 who were seeking, at the proper time and in the mode ap- 
 pointed by the statute, to elect anew board of directors, and 
 to put the mine beyond their reach and control, in order that 
 the Seligmans might control it according totheir own ideas of 
 what was right and proper. Whether or not this was, as the 
 complainantinsists,intendeda8afraud, the manifest operation 
 of the proceeding, if consummated, would be to work a fraud 
 upon the rights of a majority of the stockholders. Upon 
 that ground I think the lease was not made in the due and 
 rjgular course of business of the corporation, or for any 
 legitimate purpose. It was made for the purpose of di- 
 verting the mine into the control of the minority of tire stock- 
 holders against the opposition of the majority, without any 
 representation on the part of the majority, in case the major- 
 ity should succeed in establishing their control of the corix»ra- 
 
Mahony Mining Co. v. Bennett. 137 
 
 tion — sliould elect a new board of directors at the coming 
 meeting. 
 
 It is said that this new election^ was void, and that the acts 
 of the new board of directors are not the acts of the corpora- 
 tion. The new board was elected by a majority of the stock- 
 holders at a meeting held at a time and in the maniier au- 
 thorized by law, and'a State court has decided that election to 
 be valid; and although there is an appeal pending, that 
 judgment is still unreversed.- At >all events, the new board 
 is in active con,trol, and, as I understand it^ in possession 
 of the books, etc., of the corporation; and its members are 
 now, and were at the time, defacto, acting as directors. 
 
 As to the management of the mine, we have nothing to do 
 with that here. Upon the vacation of the lease, the mine, as 
 it should be, will be subject to the control of the legal board 
 of directors, whoever they, may, be- • The- new members were 
 doubtless all elected in the interest of those opposed to the 
 Seligmans, as the old ones were in their favor. But we have 
 nothing to do, wit^that in this suit. I have disposed of the 
 only question involved in .the case, in determining that this 
 lease was ctiade for an unlawful .purpose— for the purpose of 
 taking the mine out of tlifi coutrol.of those who were to suc- 
 ceed in the management of the mine, shouM an election be 
 lawfully held in pursuance of nptice already given; a purpose 
 which, in my judgment, renders the. lease an unlawful exer- 
 cise of the powers assumed and , exercised by those parties 
 by wliom it was made, and tlierefore. that it should be can- 
 celed. 
 
 Let a decree be entered canceling the lease, in pursuance 
 of the prayer of the bill, and making the preliminary injunc- 
 tion issued perpetual. 
 
138 Feaud. 
 
 Hicks et ijx, v. Jennings. 
 
 (4 Fed. Rep. 855. U. S. Circuit Court, N. D. Georgia, 1880.) 
 
 ■ Defense of fraud where land was sold in parcels. Several tracts of 
 mining land were sold under one contract, but separate deeds naming 
 distinct considerations were [given for each tract. Held, that fraud 
 and want of consideration in the sale of one tract could be set up as a 
 defense in a suit to foreclose a purchase money mortgage upon another 
 of such tracts. 
 
 ^ Defense runs against heirs. And that such defense could be set up against 
 the heirs and distributees of the mortgagor where such mortgage had 
 been transferred to them as an advancement. 
 
 Donee of note. A donee takes a note subject to equitable defenses. 
 
 In Equity. i 
 
 The purpose of this suit is to foreclose a mortgage executed 
 by the defendant to one Henry Irby, now deceased, dated 
 May 7, 1877, on certain lots of land in Hall county, Georgia, 
 known as the " Glade Mines " and contain^^g 2,000 acres, to 
 secure a note, dated the said May 7, 1877, made by said Jen- 
 nings and payable to said Irby, for $10,000, and falling due 
 January 1, 1879. The note recited on its face that it was 
 given for part of the purchase pyice of the Glade mines, in 
 Hall county, Georgia. Upon this note the defendant paid, 
 on December 31, 1878, the sum of $5,000 principal, and all 
 the interest due up to that date; and, by an indorsement made 
 on the mortgage by the payee of said note, the time for the 
 payment of the note was extended to January 1, 1880. The 
 bill alleged that in January, 1879, Henry Irby, the payee of 
 said note, assigned said note and mortgage to the complainant, 
 Eoyal B. Ilicks, and delivered the same to the com])lainant, 
 Sarah Jane Hicks, who was his daughter, as an advancement 
 to her out of his estate, and the same was then and there ac- 
 cepted by her as such; that on February 20, 1879, said Henry 
 Irby departed this life, and afterward on April 7, 1879, John 
 F. Irby, wiio was a son, and C. L. "Walker, who was a son-in- 
 law of said Henry Irby, for the purpose of carrying out the . 
 wishes of said Henry Irby in reference to said note, signed a 
 
 ' Coos Bay Co. ■?. Crocker, 6 Saw. 574. 
 ^Lathrop v. Pollard, 6 Colo. 424. 
 
Hicks v. Jennings. 139 
 
 transfer of all tlieir interest in the same to complainant, Kojal 
 B. Hicks, and authorized him to receive the money due on 
 the same. Tlie consideration of this transfer hy John F. Irby 
 and Walker, was an agreement on the part of Sarah Jane 
 Hicks to accept said note as an advancement, and account for 
 the same in a final settlement of Henry Irby's estate; and the 
 complainants, Hicks and wife, agreed to pay over to John F. 
 Irby and to 0. L. Walker, for his wife, Agnes Walker, $1,0,- 
 000 belonging to the estate of Henry Iiby, then on deposit iti 
 a bank in the city of Atlanta. On this sum $5,000 was 
 actually paid on July IS, 1879. 
 
 The defense, relied on is stated substantially as follows: On 
 April 27, 1877, the defendant entered into a contract in writ- 
 ing- with the said Plenry Irby for the purchase of certain 
 mining lands in Georgia, then owned by said Irby. There 
 were two tracts in Hall county, known respectively as fhe 
 Glade mines and Chapman mines, each containing 1,000 acres 
 and lying contiguous to each other, and all designated as the 
 Glade mines in said contract, and lot 'No. 133 of the 17th 
 District, in Fulton county, Georgia. For these lands the de- 
 fendant, Jennings, agreed to pay the sum of $30,000 as fol- 
 lows: $10,000 on the delivery of deeds; $5,000 on July 1, 
 1877; $5,000 on January 1, 1878; and the remaining $10,000 
 at any time during the year 1878; and for that part of the 
 purchase money which was unpaid, a mortgage was to be 
 given on the Glade mines. When deeds were made by Henry 
 Irby to Jennings for those lands, in pursuance of this con- 
 tract, the parties required that the purchase money should be 
 divided into three parts, $10,U00 for the Glade mines, and the 
 like sum, each, for the Chapman mines, and for lot No. 133 
 in Fulton county. Three separate deeds were made, two for 
 the Hall county lands, and one for lot 133 in Fulton county_ 
 $10,000 was paid by Jennings to Irby on the delivery of the 
 deeds, and a mortgage given on the Hall county lands to se- 
 cure the residue of the purchase money, which was evi- 
 denced by two notes for $5,000 each, and one note for $10,- 
 000. The two $5,000 notes were paid at or before maturity, 
 and a payment was made on the $10,000 note of $5,000 and 
 all interest up to January 1, 1879. 
 
 The defendant alleges that in the treaty for the purchase of 
 
140 Fraud. 
 
 these lands Henry Irby represented that the said lot 133, in 
 Fulton county, contained a valuable silver mine, and was 
 woi-tli $15,000 or $20,000, and that upon the strength of these 
 assurances he agreed to give, without any examination of the 
 Fulton county lands, $30,000 for the three tracts of land, 
 estimating lot 133 as worth at least $10,000, and believing it 
 to be worth $15,000; and that he would not have purchased 
 said lot 133, in Fulton county or the said HaU county lands; 
 but for the statements of said Jlenry Irby in reference to the 
 value of said lot 133. He declares , that he relied implicitly 
 on the representations of Irby in relation to said lot 133, and 
 had no opportunity to examine the same. Said lot was about 
 70 miles distant from the place where the coatract of pur- 
 chase was made. 
 
 The defendant says that all the statements of said Irby in 
 reference to the value of said lot 133 were, false, and Irby 
 knew them to be false when lie made, them; that, so far from 
 its being true that said lot contained a valuable silver mine, 
 there was not a trace of- silver or other precious metal to be 
 found upon said land, .and, so far from its being worth $15,- 
 000 or $20,000, it was not wortlimore than three dollars an 
 acre — in the aggregate about $600; and he claims that 
 thence, by reason of. said fraud, there should be no decree for 
 complainants on said note and mortgage, 
 
 D. F. Hammond and W. E. Hammond, for complainants, 
 
 J. B. Estes, CiAUD EsTEsandL. J, Gaetell, for defendant. 
 
 Woods C. J, 
 
 The evidence leaves no doubt thatHenry Irby, in his treaty 
 with Jennings for a sale of the lands mentioned in the answer 
 of defendant, fraudulently misrepresented the value of lot 133, 
 in Fulton county. The fact that a careful examination of the 
 lot, and an assay of ores found upon it, shows that not a trace 
 of any precious metal exists upon it, stamps the statements 
 made by Irby to Jennings in reference toits value, with false- 
 hood and fraud. So far from being worth $15,000 or $20,000 
 on account of the deposits of silver to be found on it, as as- 
 
Hicks v. Jennii^gs. 141 
 
 sertBd by. Irby, it is nat worth over $500 or $600. Irby m nst 
 have known that his representation was false, for he told Jen- 
 nings that.he had procured an assay of the ore taken by him- 
 self from the lot to be made, and that it proved to be rich iu 
 silver. The evidence shows that the k)t.l33 formed at least a 
 third.of the, entire consideration given for all the It^nds sold by 
 Irby .to Jennings. If;this snit. were prosecuted by Irby, and 
 if it were based on a note given for the purchase price of lot 
 133, there could be no question that the defense set up in the 
 answer and established by the proof,.showing the, willful fraud 
 and misrepresentation of Irby, ought to prevail. . But this suit 
 is for foreclosure of a mortgage, executed to secure a note, 
 given, as expressed on its face, for the purchase money of the 
 Glada mines| and it is prosecuted, not by Irby, but by one of 
 his heirs, to whom he transferred the note in his lifetime, and 
 who, at the time of the transfer and since his death, has agreed 
 to consider it as an advancement on his share of his father's 
 estate. 
 
 This state of the facts raises two questions: 
 
 (1) Can the fraud of Irby and the failure of the considera- 
 tion in the sale of lot 133 be set up as a defense to a suit to 
 foreclose the. mortgage on another tract of land executed to 
 secure a note given for the purchase price of that other 
 tract? The evidence makes it clear that the purchase of the 
 three tracts of land w.is one transaction. It was provided for 
 in one instrument, and one gross sum named for all the lands 
 which Irby agreed to convey. It is true that, in arriving at 
 this gross sum, estimates were put on each tract, and that, 
 when the written contract came to be executed, three separate 
 deeds were made for the three tracts respectively and a consid- 
 eration of $10,000 named in each. The deeds were all made, 
 the cash installment paid, and the mortgage executed at 
 the same time. Now, if Irby himself were seeking to fore- 
 close this mortgage, it is quite apparent that his fraud in sell- 
 ing lot 133 for $10,000, which had been paid, might be 
 set up as a defense against his recovery of the same amount as 
 the consideration for another of the tracts sold by the same con- 
 tract. In an action of law the defense might be restricted to 
 the note sued on; but not so in a court of equity, which al- 
 ways looks at tlie substance of things, and seeks to do complete 
 justice between the parties. 
 
142 Fraud. 
 
 A court of equity would not allow a decree upon the note 
 and mortgage in suit, and tlien turn the defendant over to an- 
 other suit to recover tlie amount out of which he had been 
 wronged by the fraud and falsehood of the complainant. Hav- 
 ing the parties before it, it would adjust the controversies be- 
 tween them springing out of the same transaction, according 
 to equity and good conscience; and this would be to refuse a 
 decree oti this note and mortgage in consideration of the fact 
 that the complainant had already defrauded the defendant, in 
 the same contract out of which the note and mortgage sprung^ 
 to an equal or greater amount. tFpon the facts of the case, 
 tiierefore, if Henry Irby were the complainant no decree should 
 be made in his favor. 
 
 (2) The next question is, can the defense which the de- 
 fendant could have set up against the note and mortgage, if 
 the suit to foreclose were prosecuted by Irby, bo set up against 
 his heirs and distributees? The transfer of the note by Henry 
 Irby in his lifetime to Sarah Jane Hicks, his daughter, was 
 not for value; it was a mere gift. The rule is that a negotia- 
 ble instrument, in order to be operative in the hands of an in- 
 dorsee as against equities and defenses existing between the 
 maker and payee, must have been taken by the indorsee for 
 value; that is, he riiust have parted with something valuable 
 therefor at the time of the transfer: Pa/rh Bank v. Watson., 42 
 ]Sr. Y. 490. 
 
 Neither Sarah Jane Hicks nor her husband, Eoyal B. 
 Hicks, paid anything for the note at the time of its transfer 
 by Elenry Irby. They parted with nothing of value as a 
 consideration for the transfer. Tiie same defenses against the 
 note were therefore open to the maker as if it had remained in 
 the hands of the original payee. The agreement made between 
 Ilicksand wife, and other heirs and distributees of Irby's estate, 
 after Irby's deatli, did not change the terms on which Hicks 
 and wife had received the transfer of the note and mortojaffe. 
 ,They agreed to consider tliem as an advancement, and they had 
 received them from Henry Irby as an advancement. The 
 contract between them and the other lieirs and distributees 
 provided that in case of any recovery against the estate of Henry 
 Irby reducing the distributive shares of the heirs, they, the 
 said heirs, wguld " refund their jpro rata shares of such re- 
 
Hicks v. Jennings. 143 
 
 covery to an extent sufRcient to save indemnified and harmless 
 the legatees of said estate, and make all parties inteiested 
 therein eqnal." A fair construction of this contract would 
 require, in case of a failure to collect the note in suit by rea- 
 son of the defenses set up, the answer that the residue of the 
 estate should be equally divided between all tiie distributees, 
 so as to give each art equal share. In any view that may be 
 taken, the complainants neither paid nor surrendered any- 
 thing of value for the transfer of the note and mortgage. 
 The same defenses are therefore open to the maker of the note 
 as if the suit were prosecuted by Henry Irby in person. 
 
 The defendant, Jennings, after setting forth in his answer 
 his defense to the case made by the bill, attempts by calling 
 his answer an answer in the nature of a cross-bill, to make 
 the complainant. Hicks, in his capacity of administrator of the 
 estate of Henry Irby, a party to the original bill, and asks a 
 decree against him as such administrator, for the $5,000 paid 
 upon the note and mortgage on which the suit is based, with 
 interest. An answer in the nature of a cross-bill is author- 
 ized by the Code of Georgia, but no such pleading is recognized 
 by the equity practice of the United States courts. If the de- 
 fdudant had tiled a formal cross-bill he could only make either 
 the complainants or other defendants, if any, or both parties 
 defendant to his cross-bill- He can not introduce a new party 
 and ask relief against him. By asking relief against Hicks, 
 as administrator of Irby, the defendant seeks to bring into 
 the litigation a new party, and to obtain a decree against him 
 alone. This is not permissible. The other parties to the case 
 are not to be involved by the filing of a cross-bill in a contro- 
 versy between one of the defendants and a stranger to the orig- 
 inal litigation, in which they have no interest, and to which 
 they are not necessary or proper parties. 
 
 There can, therefore, be no decree in favor of the defendant 
 against Henry Irby's administrator, as prayed for in the an- 
 swer. There will be a decree dismissing the bill of complain- 
 ants at their costs, and dismissing the claim of the defendant; 
 set up in his answer in the nature of a cross-bin, without preju- 
 dice to a suit upon the same by defendant against Henry Irby's 
 administrator. 
 
144 Fraud. 
 
 ^Waedell v. The Uirioiir Pacific Railroad Co. 
 
 (103 United States, 651. Supreme Court, 1880.) 
 
 2 Priyate interest of directors subservient to ofHcial duty. The direct- 
 ors of a corporation are subject to the obligations which the law im- 
 poses upoa trustees aad agents. They can not, therefore, with respect 
 to the same matters, act for themselves and for it, nor occupy a position 
 in conflict with its interests. 
 
 ' Credit mobilicr contract not enforced. Applying this rule, a court will 
 refuse to giveeffeotito arrangements by directors of a railroad company 
 to secure, at, its expense, undue advantages to themselves, by forming, 
 as an auxiliary to it, a new company, with the understanding that they 
 or some of them shall become stockholders in it, and then that valuable 
 contracts shall be given to it by the railroad company, in the profits of 
 which they, as such stockholders, shall share. 
 
 Railroad directors and the coal supply of the road. The contract be- 
 tween the U. P. railroad and Wardell et al., giving them the exclusive 
 right to mine the coal on the company lands and the exclusive supply 
 of coal to the railroad lines, which contract had been assigned to a 
 company controlled by the directors of the railroad company: Held, 
 fradulent and void. 
 
 Appeal from the Circuit Court of the United States for the 
 District of Nebraska. 
 
 The facts are stated in the opinion of tlie court. 
 
 Mr. James O. Beoadhead and Mr. James M. "Woolwoeth, 
 for the appellant. 
 
 Mr. Andeew J. PoppLETON, for the appellee. 
 
 Mr. Justice Field delivered the opinion of the court. 
 
 The road of the Union Paciiio Eailroad Company passes for 
 its entire length, from Omaha on the Missouri Eiver to 
 Ogden in Utah, a distance of 1,036 miles, through a country 
 almost destitute of timber fit for fuel. During its construc- 
 tion, however, large deposits of coal, of excellent quality and 
 eisily worked, were discovered in land along its line, from 
 
 ' S. 0. below, 4 Dillon, 330. 
 
 2 See Cumberland Co. v. Sherman, I M. R, 322j Simons v. Vulcan Co., 
 6 M. R, %m. 
 »^W"s^i)iJ., 3M. R. 639. 
 
Waedell v. The UiirioN Pacific K. R. Co. 145 
 
 which abundant supplies for the use of the company could be 
 obtained. The complainant represents that their extent, qual- 
 ity and value were unknown, and that doubts were generally 
 entertained as to their adequacy to meet the necessities of the 
 company, until he had made explorations in June, 1868, and 
 reported to its managers the information which he had thus 
 acquired; and that upon that information the contract which 
 has given rise to this suit was made, after much negotiation 
 between the company and himself and Cyrus O. Godfrey, 
 with whom he had become associated in business. But in 
 this respect he is mistaken. Though he may have imparted 
 to the niauagers.the information acquired by his explorations, 
 the knowledge of the existence and general character of the 
 deposits had been communicated to them years before by the 
 engineers appointed to survey the route for the construction 
 of the road. They had reported that coal in inexhaustible 
 quantities, of suitable quality for the purposes of tlie porapariy, 
 was found so near the line of the road as to render its extrac- 
 tion and delivery easy and convenient. It is of little moment, 
 however, whether the knowledge of the existence, character, 
 extent and accessibility -of the deposits was obtained from the 
 complainant or from otliers; it is sufficient that the directors 
 of the Union Pacific Railroad Company, having the control 
 and management of its roads and business, were informed 
 upon the subject at the time the contract mentioned was 
 made. Tiie contract was as follows: 
 
 " This agreement, made this sixteenth day of July, in the 
 year of our Lord one thousand eight hundred and sixty-eight, 
 between the Union Pacific Railroad Company, by its proper 
 officers, of the first part, and Cyrus O. Godfrey and Thomas 
 Wardell, of the State of Missouri, or assigns, parties of the 
 second part: 
 
 " Wifnesseth, that the said party of the first part agrees 
 that the said parties of the second part may prospect at their 
 own expense for coal on the whole line of the Union Pacific 
 railway, and its branches and extensions, and open and oper- 
 ate any mines discovered, at their own expense; that said 
 railroad company agrees to purchase of said parties of the 
 second part all- clean, merchantable coal mined along its road 
 needful for engines, depots, shops and other purposes of the 
 
 VOL. VII.— 10 
 
146 Fbaud. 
 
 company, and to pay for the same the first two years at the 
 rate of six dollars per ton ; for the next three years at five 
 dollars per ton; for the four years thereafter at four dollars 
 per ton; and for the six years remaining at the rate of three 
 dollars per ton, delivered upon the cars at the mines of the 
 said party 6f the second part, and which shall not be less than 
 ten per cent, added to the cost of same to the said party of the 
 second part. This contract to be and remain in full force and 
 effect for the full term of fifteen years from the date hereof. 
 
 "The said railroad company agrees to facilitate the opera, 
 tions of the said parties of the second part in prospecting and 
 otherwise, by means of such information as it may possess, 
 and by furnishing free passes on its road to the agents of the 
 parties of the second part, not exceeding six in number. Said 
 railroad company further agrees to put in switches and the 
 necessary side tracks, at such points as may be mutually 
 agreed upon, for the accommodation of the business of said 
 parties of the second part; that the said parties of the second 
 part agree to make all necessary exertions to increase tiie de- 
 mand and consumption of coal by outside parties along the 
 line of said railroad, and to open and operate mines at such 
 points where coal may be discovered as may be desired by said 
 railroad company; and to expend within the first five years 
 from the date of this agreement, in the purchase and develop- 
 ment of mines and mining lands, and improvements for the 
 opening, successful and economical working of tlie same, not 
 less than the sum of twenty thousand dollars; also to furnish 
 for the use of the said railroad company good, merchantable 
 coal, and to pay all expenses for improvements for loading 
 coal into cars. Any improvement desired by said railroad 
 company in regard to the coal to be used by it shall be at the 
 cost of said railroad company. 
 
 " In consideration of their exertions to incjrease the demand 
 for coal, and the large sum to be expended in improvements, 
 it is further agreed that the parties of the second part shall 
 have the right to transport over the said railroad and its 
 branches, for the next fifteen years from the date of this agree- 
 ment, coal for general consumption at the same freight that 
 will be charged to others; but the said parties of the second 
 part shall be entitled, in consideration of services to be ren- 
 
Waedell v. The Union Pacific E. R. Co. 147 
 
 dered as herein provided, to a drawback of twenty-five per 
 cent, on all sums charged for tlie transportation of coal. 
 
 " The said railroad company agrees to furnish tlie parties 
 of the second part such cars as tliey may require in the opera- 
 tion of their business, to transport them as promptly as pos- 
 sible. This agreement to remain in force for fifteen years. 
 
 " The coal lands owned by said party of the first part are 
 hereby leased for the full term of fifteen years to the said par- 
 ties of the second part or their assigns, for the purpose of 
 working the same as may seem to them profitable; said par- 
 ties of the second part to pay for the first nine years a royalty 
 of twenty-five cents per ton for each ton of coal taken from 
 their lands, excepting always coal taken from entriesi 
 air-courses or passage ways, for which coal no royalty shall be 
 paid; paj'ments for the same beirjg due and payable monthly. 
 
 " The royalty for the last six years of this lease shall be' 
 free, provided the price of coal to the railway company is re- 
 duced to three dollars per ton. If three dollars and twenty- 
 five cents or more per ton, then in that case the royalty shall 
 be as during the first nine years. 
 
 " In witness whereof, we have hereunto set our hands and 
 seals, this tlie day and year first above mentioned. 
 
 (Signed) " Oliver Ames, 
 " President of the Union Pacific R. R. Co. 
 "C. O. Godfrey. 
 "Thomas Wabdkll." 
 
 This contract on the part of the railroad company was made 
 by direction of the executive committee of the board of di- 
 rectors, of whom the president was one, and not by the board 
 itself. It was never reported to the board for its considera- 
 tion or action. But notwithstanding this defect, in August, 
 following, the contractors, Wardell and Godfrey, entered upon 
 its execution, and began work on several mines along the line 
 of the road. Soon afterward Godfrey transferred his interest 
 to Wardell, perceiving, as the bill alleges, that sums beyond 
 those stipulated would be required, and being alarmed at the 
 risks which he believed he had assumed.' 
 
 In January following (1869) a corporation under the laws 
 of Nebraska, called the Wyoming Coal and Mining Compa- 
 ny, was formed to develop and work the mines, having a cap- 
 
148 Fkaitd, 
 
 ital stock of $300,000, divided into shares of $100 each, a 
 majority of which was taken bj six of the directors of the 
 railroad company, one of whom was its president; and to it 
 Wardell assigned his contract without any consideration. 
 
 The corporation continned the execution of the contract, 
 Wardell acting as its superintendent, secretary and general 
 manager, and delivered coal as needed by the railroad com- 
 pany up to .the 13th of March, 1874, when the officers and 
 agents of tnat company, by order of its directors, took forci- 
 ble possession of the mines, and of the books, papers, tools 
 and other personal property of the coal company, which they 
 have held and used ever since. Hence the present suit, which 
 Wardell brings in his own name, alleging as a reason that a 
 majority, if not all of the directors and stockholders of tlie^ 
 coal company except himself, are also directors and stockhold- 
 ers of the railroad company, and that therefore he can obtain 
 no relief by a suit in the name of the coal company. He 
 prays that an account may, be taken for the amount due for 
 the coal delivered to the railroad company; for drawback on 
 freight from the date of the contract to the forcible seizure 
 alleged; for coal extracted from the mines since their seizure; 
 for the property of the coal company taken, and for the dam- 
 ages arising from the seizure and the attempted abrogation of 
 the contract; and that the rights and interests of the several 
 parties may be ascertained and declared ; and for general re- 
 lief. 
 
 To this bill the railroad company filed an answer, setting 
 up in substance three defenses. 
 
 1st. That the contract of July 16, 1868, was a fraud upon 
 the company; that it was made on its part by the executive 
 committee of its board of directors, a majority of whom were 
 by previous agreement to be equally interested with the con- 
 tractors in it, and for that reason its terms were made so 
 favorable to the contractors and unfavorable to the company 
 as to enabFe the former to make large gains at the expense of 
 the latter, and that the organization of tiie Wyoming Coal 
 and Mining Company was a mere device to enable those di- 
 rectors to partici])ate in the profits; and that therefore the 
 contract was of no validity and binding obligation upon the 
 company. 
 
Waedell v. The Union Pacific R. R. Co. 149 
 
 2 J. That, at the time of the seizure of the property, the 
 railroad company was the owner of nine tenths of the stock 
 of the coal company, and had become apprehensive that War- 
 dell, its superintendent and manager, would not furnish the 
 c al needed to run the trains; and 
 
 3d. That since then the coal company and the railroad 
 company, through their board of directors, have had a settle- 
 ment of their transactions, by which the contract of July 16, 
 1868, has been rescinded, and the sum of $1,000,000 allowed 
 to the coal company, arrd that the railroad company has set 
 apart and tendered to the complainant $100,000 for his share 
 of the coal company, in that settlement. 
 
 The court below held that the contract of July 16, 1868, 
 was a fraud upon the company, but that the complainant 
 was, apart from it, entitled to some compensation for his 
 time, skill and services while engaged in taking out the coal, 
 with the return of the money actually invested, and compen- 
 sation for its use, the amount to be credited with what he had 
 actually received out of the business; and that at his election 
 he could have an accounting upon that basis x)r take the' 
 $100,000 tendered by the company. Of the alternatives 
 thus oifered the complainant elected to take the $100,000 
 instead of having the accounting mentioned, but appealed 
 to this court froin the decree, contending that the contract 
 itself was valid, and that he is entitled to an accounting upon 
 that hypothesis. 
 
 The evidence in the case justifies the conclusion of the 
 court below as to the nature of the contract of July 16, 1868. 
 It was evidently drawn more for the benefit of the contractors 
 than for the interest of the company. The extent, value and 
 accessibility of the coal deposits along the line of the road of 
 the company were, as stated above, well known at the time to 
 its directors having the immediate control and management 
 of its business.- Wardell, the principal contractor, informed 
 tliose with whom he chiefly dealt in negotiating the contract, 
 that coal could be delivered to the company at a cost of two 
 dollars per ton, yet the contract, which was to remain in foice 
 fifteen years, stipulated that the company should pay treble 
 this amount per ton for the coal the first two years, two and 
 a half times the amount for the • next three years, twice the 
 
150 Fraud. 
 
 amount for the following four years, and one half more for 
 the balance of the time. And lest these rates might prove 
 too little, the contract further provided that the sum paid 
 should not be less than ten per cent, added to the cost of the 
 coal to the contractors. These terms and the leasing of all 
 the coal lands of the company for fifteen years tothose parties 
 upon a royalty of twenty-five cents a ton for the first nine 
 years, and without any royalty afterward if the price of the 
 coal should be reduced to three dollars, with the stipulation to 
 provide side tracks to the mines, and. also to furnish cars for 
 transportation of coal for general consumption, and after 
 charging them only what was charged to others, to allow 
 them a drawback of twenty-five per cent, on the sums paid, 
 gave to them a contract of the value of millions of dollars. 
 These provisions would of themselves justly excite a suspicion 
 that the directors of the railroad company, who authorized 
 the contract on its behalf, had been greatly deceived and im- 
 posed upon, or that they were ignorant of the cost at which 
 the coal could be taken from the mines and delivered to the 
 company. But the evidence show's that those directors were 
 neither deceived nor imposed upon, nor were they without 
 information as to the probable cost of taking out and deliver- 
 ing the coal. And what is of more importance, it shows, as 
 alleged, their previous agreement with the contractors for a 
 joint interest in the contract, and in order that they might 
 not appear as co-contractors, that a corporation should be 
 formed in which they should become stockholders, and to 
 which the contract should be assigned; and that this agree- 
 ment was carried out by the subsequent formation of tlie 
 Wyoming Mining and Coal Company, and their taking stock 
 in it. This matter was so well understood that when tlie 
 contractors commenced their work in developing the mines 
 and taking out the coal, they kept their accounts in the name 
 of the proposed company though no such company was 
 organized Vmtil months afterward. 
 
 It hardly requires argument to show that the scheme, thus 
 designed to enable the directors who authorized the contract 
 to divide with the contractors large sums which should have 
 been saved to the company, was utterly indefensible and il- 
 legal. Those directors, constituting the executive committee 
 
Wardell v. The Union Pacific K. R. Co. 151 
 
 of the board, were clothed with power to man age the affairs of 
 the company for the benefit of its stockholders and creditors. 
 Their characters as agents forbade the exercise of their powers 
 for, their own personal ends against the interest of the com- 
 pany. They were thereby prechided from deriving any ad- 
 vant9,ge from contracts made by their authority as directors, 
 except through the company for which they acted. 
 
 Their position was one of great trust, and to engage in any 
 matter for their personal advantage inconsistent with it, was 
 to violate their duty and to commit a fraud upon the com- 
 pany. 
 
 It is among tlie rudiments of the law that the same person 
 can not act for himself and at the same time, with respect to 
 the same matter, as the agent of another whose interests are 
 conflicting.! Thus a person can not be a purchaser of prop- 
 erty and at the same time the agent of the vendor. The two 
 positions impose different obligations, and their union would 
 at once raise a conflict between interest and duty; and " con- 
 stituted as humanity is, in the majority of cases duty would 
 be overborne in the struggle." Marsh v. Whitmore, 21 "Wall. 
 178, 183. The law, therefore, will alwa3'8 condemn tlie tran- 
 sactions of a party on his own behalf, when, in respect to the 
 matter concerned, he is the agent of others, and will relieve 
 against them whenever their enforcement is reasonably resisted. 
 Directors of corporations and all persons who stand in a 
 fiduciary relation to other parties, and are clothed with power 
 to act for them, are subject to this rule; they are not permitted 
 to occupy a position which will conflict with the interest of 
 parties they represent and are bound to protect. Thej- can not, 
 a^ agents or trustees, enter into or authorize contracts on be- 
 half of those for whom they are appointed to act, and then 
 personally participate in; the benefits. Hence all arrange- 
 ments by directors of a railroad company to secure an undue 
 advantage to themselves at its expense, by the formation of a 
 new company as an auxHiary to the original oncj-^with an un- 
 derstanding that they, or some of them, shall take stock in it, 
 and then that valuable contracts shall be given to it, in the 
 profits of which they, as stockholders in the new company, are 
 to share, are. so many unlawful devices to enrich themselves to 
 the detriment of the stockholders and creditors of the original 
 
152 Fraud. 
 
 company, and will be condemned whenever properly bronsht 
 before the courts for consideration : Oreat Luxembourg Rail- 
 way Go. V. Magnay, 'i>i6 Beav. 586; Benson v. Heathorn, 1 Y. 
 & Ool. 0. C. 326 ; Flint (& Pere Marquette Railway Co. v. 
 Dewey, 14 Mich. 477; European dh North American Rail- 
 way Co. V. Poor, 59 Me. 277; Drury v. Cross, 7 "Wall. 299. 
 
 The scheme disclosed here has no feature which relieves it 
 of its fraudulent character, and the contract of July 16, 1868, 
 which was an essential part of it, must go down with it. , 
 
 It was a fraudulent proceeding on the part of the directors 
 and contractors who devised, and carried it into execution, 
 not only against the company but also against the govern- 
 ment, which had largely contributed to its aid by the loan of 
 bonds and by the grant of lands. By the very terms of the 
 charter of the company five per cent, of its net earnings were 
 to be paid to the government. Those earnings were neces- 
 sarily reduced by every transaction which took from tlie com- 
 pany its legitimate profits. It is true that some of the direct- 
 ors, who approved of or did not dissent from the contract, 
 early stated that they held their stock in the coal company for 
 the benefit of the railroad company and transferred it or were 
 ready to transfer it to the latter; but the majority expressed 
 such a purpose only when the|character and terms of the con- 
 tract became known and they were desirous to screen them- 
 selves from censure for their conduct. 
 
 The complainant, therefore, can derive no benefit from the 
 contract thus tainted, or sustain any claim against the rail- 
 road company for its repudiation. The coal company may, 
 perhaps, be entitled to reasonable compensation for the labor 
 actually expended in the development of the mines and 
 delivery of coal to the railroad company, considered entirely 
 apart from the contract, and also for its property forcibly 
 taken possession of by the ofiicers of the railroad company. 
 But an accounting for compensation thus limited is not desired 
 by him, and as the two companies have since settled the matter 
 in dispute between them by the payment of $1,000,000 to the 
 coal company, of which $100,000 has been set apart for com- 
 plainant, and he has elected to take that sum if an accounting 
 can not be had upon the assumed validity of the contract, the 
 decree of the court below is affirmed. 
 
Notes. 153 
 
 1. The burden of charging as well as proving fraud is on the party 
 alleging it: Hale v. The West Va. Oil, etc., Co., 11 W. Va. 229. 
 
 2. Burden of proof to show value paid, etc., is on holder of fraudulent 
 note: Perkins v. Frout, 2 M. R. 139. 
 
 3. Proof of the res gestce, in cases of fraud: Id. 
 
 4. A statement that " the surface is rich in gold," is a Statement of fact 
 and not of opinion; and so are statements in regard to width of vein and 
 assays of ore: Smith v. Richards, 13 Peters, 39. 
 
 5. Sale of oil by fraudulent sample: Maule v. Gross, 56 Pa. St. 250; 
 Post Oil. 
 
 6. Evidence of subsequent results of working as proof of inadequate 
 consideration at time of sale: Henry v. Everts, 5 M. R. 603; Bean v. Falle, 
 2 Mo. 127; Post Speoipio Performance. 
 
 7. Agent concealing facts from his principal: Norris v. Tayloe, 1 M. R. 
 883. 
 
 8. A partner not participating in the fraud of his associate may be liable 
 for the consequences; but fraud can not be imputed to him so as to impeach 
 h's discharge in bankruptcy: Curtis v. Waring, 92 Pa. St. 104 
 
 9. Partner stipulating clandestinely for private advantage held to be a 
 trustee for the other partners: Fawceity. Whitehouse, 1 Russ. & M. 132; 
 Post Partnership. 
 
 10. Fraud in accounts of lessee whose tenancy is affected by the fact of 
 his holding fiduciary relations, as agent, at the same time: BeatimontY. 
 Boultbee, 1 M. R. 253, 263, 278. 
 
 11. Purchaser concurring in fraudulent breach of trust: Barhsdale v. 
 Finney, 14 Grattan, 338; Post Trust. 
 
 12. Joint fraud of vendor and organizers of purchasing company: Vigers 
 v. Pike, 8 C. & F. 562; 2 Dru. & W. 1. 
 
 13. Joint buyer colluding with vendor to deceive purchaser as to soap- 
 stone quarry: Page v. Parker, 40 N. H. 47; 43 Id. 363; 6 M. R. 514. 
 
 14. Credit mobilier contracts: Rice's Appeal, Ahl's Appeal, 8 M. 
 R. 6;8; Thomas v. R. R. Co., 109 U. S. 522. 
 
 15. A transaction apparently fraudulent, as the promise of a corporation 
 to pay the individual debts of its members, may be shown to be valid by 
 proof that, in fact, these liabilities were corporate debts : Head v. Horn, 18 
 Cal. 211. 
 
 16. Company affected with notice of fraud by its organizers : Hoffman 
 Co. V. Cumberland Co., 16 Md. 456. 
 
 17. Liability of officers and associates for fraudulent organization of cor- 
 pDration: Densmore Co. v. Densmore, 3 M. R. 569; Cumberland Co. v. Sher- 
 m in, 1 M. R. 822. 
 
 18. Company failing to procure all of the mineral lots mentioned in its 
 prospectus: Kelsey v. Northern Light Co., 45 N. Y. 505; Post Stock. 
 
 19. Measure of damages in action for fraudulently inducing plaintiff to 
 enter into oil speculation: Crater v. Binninger, 33 N. J. Law, 513; Post 
 Measure of Damages. 
 
 20. Sale on false representations; measure of damases in excess of con- 
 sideration paid: Ahrens v. Adler, .33 Cal. 608; Post Pleading. 
 
 21. In pleading the defense of fraud arising out of sale of land, the land 
 must be particularly described: Wann v. McGoon, 3 111. (2 Scam.) 74. 
 
154 Feaud. 
 
 22. Liability arising from fraudulently preventing the happening of a 
 condition upon which a right depends: Stonecifer v. Yellow Jacket Co., ?> 
 M. R. 4. 
 
 23. A contract void for fraud may be ratified without any new contract 
 or new consideration: Negley v. Lindsay, 67 Pa. St. 217. 
 
 24. Notice of fraud received but not anted on. on account of relations of 
 confidence: Mnrston v. Simpson, 54 Cal. 189; Post Rescission. 
 
 25. Plea of fraud by vendee, who yields to claims of third party without 
 process or compulsion, and then avers want of title in his vendor: First 
 Nat. Bank v. How, 1 Mont. 604; Post Pleading. 
 
 26. Effect of delay by defrauded party: Marslon v. Simpson, 54 Cal. 189; 
 Post Rescission. 
 
 27. Bar of the Statute of Limitations to relief in equity on account of 
 fraud: Bradbury v. Davis, 5 Colo. 265, 341; 3 M. R. 398, 403. 
 
 28. In a case depending upon alleged misrepresentation as to'the nature 
 and value of the thing purchased, the defendant can not adduce more con- 
 clusive evidence, or raise a more perpetual bar to the plaintiff's case than 
 by showing that the plaintiff was from the beginning cognizant of all 
 the matters complained of, or, after full information concerning them, con- 
 tinued to deal with the property, and even to exhaust it in the enjoyment, as 
 by working mines: Vigers v. Pike, 8 CI. & Fin. 650 (House of Lords). 
 
 29. Duties of vendee of stojk who seeks to rescind on the ground of 
 fraud; Laches: Pence v. Langdon, 99 U. S. 578; Post Rescission. 
 
 30. Purchaser concealing knowledge of the existence of a mine upon the 
 land purchased: Caples v. MeBride, 7 Oreg. 491; Post Vbndou and Puii- 
 
 • chaser; Fox v. Mackreth, 2 Br. Ch. Ca. 420. 
 
 31. A person who knows that there is a mine on the land of another, of 
 which the latter is ignorant, may nevertheless buy it without committing a 
 fraud: Harris v. Tyson, 24 Pa. St. 347; Post Vbndob an; Purchaseu. 
 
 32. The sale of mining stock without any misrepresentations, does not 
 constitute a voidable contract, though the stock have little or no value: 
 Benton V. Maryott, 21 N. J. Eq. 123; Po«< Mortgage; Beelcer v. Hastings, 
 2 M. R. 688. 
 
 33. False representations as to the price paid for lands, accompanied 
 with expressions of opinion that the lands contain oil, will mt support an 
 action for deceit in the sale of real estate: Holbrook v. Connor, 60 Me. 578. 
 
 34. Deed set aside when vendee had written to vendor that the mining 
 land bought, was "only fit for sheep pasture'': Livingston y. Peru Iron 
 Co., 9 Wend. 511, 2 Paige, Ch. 390. 
 
 35. Misrepresentations by vendors in sale of mining stock; Crump v. 
 United States M. Co., 3 M. R. 454. 
 
 36. Misrepresentation of vendor as to the boundary of land, as a ground 
 for restraining the collection of the purchase money: James v. Elliott, 44 
 Ga. 237. 
 
 37. Where the buyer gets what he bargained for, there is no failure of 
 consideration, though the subject-matter of the sale may turn out to be a 
 thing of no value: Penniman v. Winner. 2 M. R. 448. 
 
 38. Rescission on the ground of fraud; Grymes v. Sanders, 93 U. S. 55; 
 Post Mistake; Jennings v. Broagnton, 5 De Gex M. & G. 125; Post 
 
 PllOSPECTUS. 
 
Notes. 155 
 
 39. Mon»y paid to buyer to induce purchase of stock to escape liability: 
 In re Hafod Lead M. Co., 35 L. J. Ch. 304; S C. 12 Jurist N. S. 242. 
 
 40. Ac'ion for damages for deceit is not necessarily an affirmation of the 
 contract, so as to prevent suit to rescind: Emma S. M. Co., limited, v. Em- 
 ma S. M. Co., 7 Fed. R. 401. 
 
 41. Contract of sale will not be rescinded on the ground of fraud without 
 the clearest proof of the fraud: Attwood t. Small, 6 Clark & F. 232. 
 
 42. Estum of property, when necessary, in action for damages based on 
 fraud: Fttz v. Bynum, 55 Cal. 459; Post Stock. 
 
 , 43. Where a contract has been rescinded for fraud, and the consideration 
 passed was not money, but a credit on a debt, the defrauded party is re- 
 mitted to his rights on the contract on which payment was credited, and can 
 not have relief in damages: Degraw v. Elmore, 50 N. T. 1. 
 
 44. Wrongful acts in working coal beyond boundaries, not condoned by 
 subsequent release of all damages for wrongful acts, if executed in ignorance 
 of such breaking of boundaries: Ecclesiastical Com. v. North Eastern Rail- 
 way Co., L. R. 4 Ch. Div. 845; Post Release. 
 
 45. Averments of fraud, ihingled with the statement of a cause of ac- 
 tion based on contract are not issuable, and will not justify the order of 
 arrest allowed in actions based on fraud: Graves v. Waite, 59 N. Y. 156; 
 Payne v. Elliot, 54 Cal. 339; Post Tkovbb. 
 
 46. The fraudulent obtaining of an in^junction not a matter of account- 
 ing: Hall V. Fisher, 20 Barb. 441; Post Pleading. 
 
 47. Bill for injunction by surety to stay execution because of fraud on 
 principal: Emmons v. McKesson, 5 Jones' Eq. 92; Post Injunction. 
 
 48. Contract for purchase of land from which vendees have been clan- 
 destinely removing coal, not enforce:!: Phillips y. Somfray, L. R. 6 Ch. 
 App. 770; Post Vendob and Pdrchasbh. 
 
 .49. Sale of shares induced by false prospectus: In re Reese River Co., 
 L. R. 4 H. L. 64; Post Rescission. 
 
 50. A trustee for the sale of estates, for payment of debts, who purchased 
 them himself, by taking undue advantage of the confidence reposed in him 
 by the plaintiff, and previous to the completion of the contract, sold them at 
 a highly advanced price, decreed to be a trustee for the origmal vendor as to 
 the sums produced by such second sale: Fox v. Mackreth, 2 Brown's 
 Ch. Cas. 400. 
 
 51. Action for damages for deceit in the sale of oil lands: Woodbury v. 
 DeLap, 1 Thomp. & C. 20; Post Pleading and Practice. 
 
 52. Upon the cancellation of a contract on the ground of fraud, the court 
 will decree' the repayment of advances made by the party guilty of the 
 fraud: Perkins v. Sterrett, Litt. Sel. Ca. (Ky.) 218; Post Rescission. 
 
 53. The opening of valuable diggings shortly after a purchase of lands, 
 is no evidence of a fraudulent concealment of mineral value by the vendee: 
 Bean v. Valle, 2 Mo. 132; Post Specific Performance. 
 
 54. Unintended benefits resulting to a party from an attempt to defraud 
 him, may be retained by him: Pioneer Co. v. Baker, 20 Fed. 4. 
 
 56. Excessive valuation of mines in exchanging them for stock: Lang- 
 don V. Fogg, 18 Fed. 5; Lake Superior Co. v. Drexel, 90 N. Y. 87. 
 
 56. Expression of opinion of value of unopened quarry, no case of fraud: 
 Gordon v. Butler, 105 U. S. 553. 
 
156 Gold DuoT. 
 
 'Mateer V, Brown. 
 
 (1 California, 221. Supreme Court, 1850.) 
 
 Nonsuit— Shifting position in Appellate Court. The ruling that a com- 
 pulsory nonsuit may be allowed, affirmed ; but a defendant asking non- 
 suit on specific grounds below, can not shift his position on appeal. If 
 the evidence does not justify a verdict, or if a verdict found would bp 
 set aside by the court, a nonsuit ought to be granted. 
 
 ' Declarations of agent beyond tlie res gestae. The declarations of an 
 agent or servant are admissible against the principal only when they 
 form a part of the res gectcB; the admission of a'barkeeper as to contents 
 of package left by guest, made to third person, excluded under this 
 rule. 
 
 Gold dust left with innkeeper. An innkeeper, like a common carrier, is 
 an insurer of the goods of his guest, and is accountable in case of either 
 theft or robbery — but he is so liable only when the goods are deposited 
 with him by travelers in the character of guests of the inn. 
 
 Appeal from the District Court of tlie Fourth Judicial Dis- 
 trict. The action was brought to recover $5,500 worth of gold 
 dust, claimed to have been lost in the inn of the defendant, 
 while the plaintiff was staying there as a guest. All the impor- 
 tant facts of the case will be found in the opinion of the court. 
 
 Calhoun Benham, for plaintiff. 
 
 Mr. Paebubt, for defendant. 
 
 By the Court, Bennett, J. 
 
 It was decided at the last term, in the case of Ringgold v. 
 Ha/oen (1 Cal. 108), that the power of compulsory nonsuit 
 exists. We think the rule convenient, reasonable, and well 
 supported by authority, and we shall adiiere to it. On the 
 trial of this cause, after the plaintiff had closed his evidence, 
 the defendant moved for a nonsuit, "on the ground that the 
 plaintiff had not proved by competent testimony the loss of 
 any property of definite value." This being the only position 
 
 ' Affirmed on rehearing, 1 Cal. 231. 
 2 Alexander v. Cauldwell, 5 M. R. 650. 
 
Mateek v. Bkown. 157 
 
 taken in support of the motion, unless that be tenable the 
 nonsuit was properly refused, notwithstanding there may 
 have been other good and sufficient reasons, for which, if urged 
 at the proper time, it might have been demanded. A party 
 making his motion on one ground, thereby impliedly waives 
 all others. He can not avail himself of a diflferent position, 
 on appeal, from that which he assumed in the court below. 
 This doctrine is well established, and is necessary to be sus. 
 tained, in order that the plaintiii' may not be misled in tlie 
 course of the trial, and in the settlement of his bill of excep- 
 tions in case the nonsuit should be ordered. 
 
 The general rule by which courts should be guided in deter- 
 mining whether a nonsuit, when applied for, should be ordered, 
 is, that if the evidence given by the plaintiff would not author- 
 ize a jury to find a verdict for him, or if the court would set 
 it aside, if so found, as contrary to evidence,' in such case i.t 
 is the duty of the court to nonsuit the plaintiff: 1 "Wend. 386 ; 
 6 Id. 436; Ringgold v. Haven c& Livingston, above cited. 
 
 Let us apply these rules to the case before us. "We must, 
 however, first remark, that the question of admissibility of the 
 evidence objected to, is one with which, in determining the 
 point now under consideration, we have nothing to do. As- 
 suming then that the evidence was admissible for the purpose 
 of affecting the defendant, was it of such weight that a jury 
 might legally and properly infer from it that the plaintiff had 
 " lost any property of a d'^finite value? " 
 
 Dexter, one of the witnesses for the plaintiff, testified that 
 Higgins, the barkeeper of the defendant, stated in a conver- 
 sation between them, "that the plaintiff had made his pile," 
 and that, on opening a closet and raising a bundle, he said "it 
 was the plaintiff's, and that it was about six thousand dollars.'' 
 If this be legal evidence for any purpose, then, certainly, a 
 jury might infer from it the value of the contents of the bun- 
 dle. The evidence to prove the loss is not quite so strong, but 
 it seems, from the course of the trial, that this was an uncon- 
 tested and admitted point, and tliat the jury would have been 
 warranted in finding the affirmative from the circumstances 
 proved. The nonsuit was therefore properly refused. 
 
 We can not review the propriety of the refusal to nonsuit 
 on the ground that the plaintiff did not show himself to have 
 
158 Gold Dust. 
 
 been a guest in the house, because the motion for nonsuit 
 was put upon a diiforent ground. 
 
 The next question is as to the admissibility of the evidence 
 objected to. Iliggins was the barlteeper of the defendant 
 when the gold dust, as is claimed, was received into the inn, 
 and during the subsequent time down to the loss. It was 
 argued by the plaintiff's counsel that, as Higgins was the 
 agent of the defendant, the latter was bound by his declara- 
 tions touching the subject-matter in controversy. Tiie fol- 
 lowing questions were put to the witness. Dexter: " State 
 what you heard Higgins, the barkeeper, say with regard to 
 any money or gold dust received from Mateer," and " state 
 what Higgins said at the time about the robbery." These 
 questions or directions, the court, after objection by the de- 
 fendant, permitted to be answered. It is asserted that the 
 testimony given in reply to these directions was admissible as 
 a part of the res gest<B. At the same time it is conceded that 
 the declarations of Higgins, thus proved, were not made at 
 the time of the delivery of the gold dust by plaintiff and the 
 receipt of it by the defendant. Thus, the question is pre- 
 sented, whether the declarations of an agent or servant made 
 to a third person concerning a deposit of which he has charge 
 for his principal, at any time during the continuance of such 
 charge, are competent evidence against the principal, 
 
 Greenleaf (1 Law of Ev. 126) says, that " where the acts of 
 the agent will bind the principal, there Jiis representations, 
 declarations and admissions, respecting the subject-matter, 
 will also bind him, if made at the same time and constitut- 
 ing a part of the res gestoB. Tiiey are of the nature of origi- 
 nal evidence, and not of hearsay; 'the representation or state- 
 ment of the agent, in such cases, being the ultimate fact to be 
 proved, and not an admission of some other fact. But it 
 must be remembered that the admission of the agent can not 
 always be assimilated to the admission of the principal. The 
 party's own admission, whenever made, may be given in evi- 
 dence against him; but the admission or declaration of his 
 agent binds him only when it is made during the continuance 
 of the agency, in regard to a transaction then depending, 
 et dum fervet opus. It is because it is a verbal act and part 
 of the res gestae, that it is admissible at all; and therefore it 
 
Mateer v. Beown. 159 
 
 is riot necessarj' to call the agent himself to prove it; bnt 
 wherever what he did is admissible in evidence, there it is 
 competent to prove what he said about the act while he was 
 doing it." As to any other facts in the knowledge of the 
 agent, he must be called to testify, like any other witness: 
 Id. 134. 
 
 Were the declarations of Higgins a part of the res gestcB, 
 according to the above rnles? We think not. There was no 
 act done by him, in his character of agent, at the time of 
 making them, which would have been admissible evidence 
 against the defendant, and which such declarations were 
 calculated to quality or explain, Tiiey were not made at 
 the time he received the deposit; had they been then made, 
 they would, perhaps, have been competent. They were made 
 when Higgins took the bundle out of the closet to exhibit it 
 to a stranger. This was not done ,by him in the discharge of 
 his duties as agent, and the declarations accompanying that act 
 were but hearsay. It is impossible to tell what weight this 
 improper evidence had on the mind of the court, in forming 
 its judgment. We can not clearly see that it had no efl'ect, 
 and consequently, a new trial must be granted. 
 
 As the cause is to be retried, it is proper that we should 
 express our views in relation to tlie other points in the case. 
 The defendant insists that he is not liable in consequence of 
 certain rules adopted by him for tlie government of his house, 
 and a copy of which he kept posted up in his bar-room. The 
 eleventh of these rules was as follows: " The proprietor will 
 not be accountable for any boxes, bundles, bags, trunks, 
 chests, clothing, specie, gold dust, bullion, or any other 
 articles or material whatever, unless delivered to his special, 
 care, and a receipt given for the same." 
 
 It is unnecessary to determine whether an innkeeper, any 
 more than a common carrier, can limit his legal responsibility 
 by notice, or, if he can, whether it is not essential that actual 
 knowledge of the notice should be brought home to his guest; 
 inasmuch as we think that the requirement of the notice in 
 this case was, so far as the plaintiff had anythi,ng to do, com- 
 plied with. The delivery of the bundle to the barkeeper and 
 agent of the proprietor, was a delivery to the " especial care" 
 of the proprietorj within the meaning of his regulation; and 
 
160 Gold Dust. 
 
 the plaintiff ought not to suffer from the neglect of the bar- 
 keeper to give a receipt. 
 
 The remaining questions relate to the general principle on 
 which the liability of innkeepers is based. It is claimed by 
 the defendant that his house was burglariously entered,- the 
 barkeeper overcome by force, and tlie property carried off by 
 robbers; and that these circumstances exonerate him from 
 liability. Tlie question then is, whether robbery from with- 
 out, or burglary, will excuse an innkeeper for the loss of the 
 goods of his guests; and the answer to it does not appear to 
 be settled by the authorities. 
 
 Chancellor Kent (2 Comm. 591) says that innkeepers are 
 responsible to as strict and severe an extent as common car- 
 riers, while in another place (Id. 593) he limits their respon- 
 sibility to losses occasioned otherwise than by inevitable cas- 
 ualty, or by superior force, as robbery. Judge Story, in his 
 work on Builmants (Sdo. i72) says that innkeepers are not 
 responsible to tlie same extent as common carriers; that the 
 loss of the goods of a guest, while at an inn, will be presump- 
 tive evidence of negligence on the part of the innkeeper or 
 his domestics; but that he may, if he can, repel this pre- 
 sumption by showing that there has been ho negligence 
 whatever, or that the loss is attributable to the personal negli- 
 gence of the guest himself; or that it has been occasioned 
 by inevitable casualty or by superior force. Thus, he contin- 
 ues, although a common carrier is liable for all losses occa- 
 sioned by an armed mob (not being public enemies), an iim- 
 keeper is not {as it should seem) liable for such loss. Neither 
 is he liable {it should seem) for a loss by robbery and burg- 
 lary by persons from without the inn. It will be observed 
 that the commentator advances this latter doctrine with some 
 degree of hesitation and doubt, and in language which implies 
 that he did not himself consider it as settled. Sir William 
 Jones, in his essay on Bailments (p. 94), says it has long been 
 holden that an innkeeper is bound to restitution, if the trunks 
 or parcels of his guests, committed to him either personally 
 or through his agents, be damaged in liis inn, or stolen out of 
 it by any person whatever; and yet he says (p. 96) that it is 
 competent for the innholder to repel the presumption of his 
 knavery or default, by proving that betook ordinary (laxe, 
 
Mateer v. Brown. 161 
 
 or that tlie force wHch occasidned the loss or damage was 
 truly irresistible. 
 
 It thus appears that while Judge Story leaves the point 
 under consideration at loose'Cnds, the two other distinguished 
 commentators above cited are still more uncertain, as neither 
 of them apparently agrees with himself; and from their op- 
 posing rules it . is difficult to determine to which side of the 
 question they intend to adhere. Tlie contradiction found in 
 the writings of commentators, as well as the diversity which 
 exists in the decisions on which their various statements are 
 rested, seem to have sprang out of a departure from the prin- 
 ciples on which the extraordinary liability of innkeepers and 
 common carriers is based, and from what appears to be an er- 
 roneous cons'lrnction put upon the doctrine laid down by Lord 
 Coke in Galye's Case, 8 Eep. 32. Thus Judge Story and Chan- 
 cellor Kent, in support of the position that an innkeeper is 
 not liable for the loss of the goods ot his guests occasioned by 
 robbery and burglary, rely in part, at least, on the authority 
 of Calye's case, while Sir William Jones cites no authority 
 whatever in support of the strange proposition tliat the inn- 
 holder may escape from responsibility by proving that he took 
 ordinary care of the goods of his guest. Following in the 
 track of the same departure from principle, in which com- 
 mentators have wandered, are several decisions of recent date. 
 Such are Burgess v. Clements, 4 M. & Selw. 306, and Daw- 
 son V. Chamney, 5 Adolph. & Ell. N. S. 164. The tenor of 
 Calye's case, however, sanctions no such doctrine, althougli 
 the particular passage in it, by which the lax rule of the re- 
 sponsibility of innkeepers is sought to be sustained, appears, 
 at first siglit, to be somewhat uncertain. It is there laid down 
 that the innholder shall not be charged, unless there be a de- 
 fault in him or his servants, in the well and safe heepi/ng and 
 custody of the guest's goods and chattels within his common 
 inn; for the innkeeper is bound in law iolceep themsafe without 
 any stealing or purloining; a,nd it is no excuse for the inn- 
 keeper to say that he delivered the guest the key of the chamber 
 in which he is lodged, and that he left the chamber door open; 
 bntheoM^A^ to heep the goods and chattels of his guests there 
 in safety. But if the guest's servant, or he who comes with 
 him, or he whom he desires to be lodgedrwith Inm, stesvls of 
 
 VOL. VII.— 11 
 
162 Gold Dust. 
 
 carries away his goods, the innkeeper shall not be charged 
 for there the fault is in the guest to have such companion oi 
 servant. So, also, if the innkeeper require his guest to put 
 his goods in such a chamber under lock and key, and then he 
 will warrant them, otherwise not, and the guest lets them lie 
 in an outer court, where they are taken away, the innkeeper 
 shall not be charged, for the fault is in the guest. Lord Coke 
 is here commenting on the writ in the Bagister Breviwm, 
 which recites that, by the custom of the realm, innkeepers are 
 obliged to keep the goods and chattels of their guests, which 
 are within their inns, without subtraction or loss, day and 
 night, so that no damage, in any manner, shall tliereby come 
 to their guests, from the default {pro defectu) of the inn- 
 keeper or his servants. 
 
 The reasoning of Coke is simply this: The innkeeper is 
 bound by law to keep the goods of his guest safely; if he 
 does not perform this obligation, the law, which imposes on 
 him the responsibility, declares him to be in default; but if 
 the loss of the goods be ascribable to the fault of the guest, 
 then the innkeeper is excused, for the words of the writ are 
 from the default of the innkeeper or his servants. He makes 
 no distinction between losses occasioned by superior force, by 
 robbery by persons within the house and persons from with- 
 out, by secret theft, or by an armed mob. On the other 
 hand, he apparently discountenances the distinction; for he 
 says, " these words, ahsque subtractione seu ommissione, ex- 
 tend to all movable goods, although of them felony can not 
 be committed; for the words are not absque felonica captione, 
 etc., but absque subtractione, etc. It strikes us forcibly that 
 the uncertainty and confusion which have been thrown over 
 this branch of the law have arisen from confounding the word 
 defectu in the writ, and the word default used by Lord Coke 
 as its translation, with the term negligence; an error into which 
 Judge Story himself seems to have fallen : Story on Bail- 
 ments, Sec. 470. The question of negligence does not, ac- 
 cording to the language of the writ in the Register Brevium 
 or the Commentary of Coke, constitute a subject for dis- 
 cussion in ascertaining the responsibility of innkeepers, any 
 more than it does in ascertaining that of common carriers. 
 The law requires of the former to keep the goods safely, as it 
 
Mateer v. Beown". 163 
 
 does of the latter to carry tbera safely, and in case either 
 fails, from any cause, to (jomply with this legal obligation, the 
 law pronounces him in default, unless the loss be occasioned 
 through the fault of the owner of the goods, or by the act of 
 God, or by the public enemies. It seems, therefore, that the 
 dictum of Mr. Justice Bayley in Richmond v. Smith, 8 Barn, 
 and Cress. 9, is a concise and accurate summary of the doc. 
 trine of Calye's case. " It appears to me, " he says, " that the 
 innkeeper's liability very closely resembles that of a carrier- 
 He is jpriiiia facie liable for any loss not occasioned by the 
 act of God or the king's enemies, al.though he may be exon- 
 erated where the guest chooses to have his goods under his 
 own care." And altiiough that dictum has been over- 
 turned in England by the subsequent decision in Dawson 
 V. Chamney, 5 Adolph. & Ell. N". S. 164, we think the 
 dictum right, and the decision wrong, Stephen, in his 
 Commentaries (2 Comm. 133) says that an innkeeper is re- 
 sponsible for the goods and chattels brought by any traveler 
 to his inn, in the capacity of guest there, in every case where 
 they are lost, damaged, stolen or taken by rohbery, except 
 where they are stolen by the traveler's own servant or com- 
 panion, or from his own person, or from a room which he oc- 
 cupied as a mere guest, or entirely through his own gross 
 negligence; and Mr. Chitty, in a note to Blackstone's Com- 
 mentaries (1 Comm. 430, note 22), declares it to be long es- 
 tablished law, that the innkeeper is bound to restitution, if the 
 guest is rohhed in his house by any pernon whatever/ unless 
 it should appear that he was robbed under circumstances like 
 those which, as above seen, constitute admitted exceptions. 
 In tlie recent case of Mason Y.Thompson, 9 Pick. 280, 284, it 
 had been laid down in Massachusetts that innkeepers as well 
 as common carriers are regarded as insurers of the property 
 committed to their care, and are bound to make restitution 
 for any injury or loss not caused by the act of God, or the 
 common enemy, or the neglect or fault of the owner qf the 
 property. And in Grinnell v. Cooh, 3 Hill, 488, Mr. Justice 
 Bronson states the rule in the following words: "The inn- 
 keeper is bound to receive and entertain travelers, and is 
 answerable for the goods of the guest, although they may be 
 stolen or otherwise lost without any fault on his part. Like 
 
164 Gold Dust. 
 
 a common carrier, he is an insv/rer of the property, and 
 nothing bnt the act of God or pnblic enemies will excuse a 
 loss." It thus appears that some courts as well as commenta- 
 tors are, at length, returning to tiie sound and healthy prin- 
 ciple of the common law, which places the liability of inn- 
 keepers and carriers on the same ground. And why should 
 there be any distinction? "Rigorous as the law in relation to 
 innkeepers may seem," says Sir "William Jones (Bailments, 
 95, 96), " and hard as it may actually be in one or two par- 
 ticular instances, it is founded on the great principle of public 
 utility, to which all private considerations ought to yield; for 
 travelers, who mnst be numerous in a rich and commercial 
 country, are obliged to rely almost implicitly on the good 
 faith of innholders, whose education and morals are usually 
 none of the best, and who might have frequent opportunity 
 of associating with ruffians or pilferers, while the injured 
 guest could seldom or never obtain legal proof of such com- 
 binations, or even of their negligence, if no actual fraud had 
 been committed by them." Now, these are the very reasons 
 assigned by the law for the extraordinary responsibility im- 
 posed on common carriers; and the reason for the rule being 
 the same in both cases, there is, in principle, no propriety in 
 making a distinction. "We think that an innkeeper is bound 
 to keep the property of his guest safe from burglars and rob- 
 bers without, as well as from thieves within, his house. 
 
 One point further remains to be considered. It appears 
 from the testimony that the bundle, which is claimed to have 
 contained the gold dust, was not taken to the defendant's inn 
 until several days after the plaintiff became his guest. As, in 
 order to entitle the plaintiff to recover, it is necessary for him 
 to establish his character of guest in the inn of the defendant, 
 so also it is equally necessary that it should appear that his 
 goods were taken there in the capacity of guest: 2 Stephen's 
 Comm. 133. The liability of the innkeeper results from the 
 relation of guest in which the traveler stands to him. and ex- 
 tends only to those things which properly pertain to him in 
 that relation: Oalye's case above cited. It does not neces- 
 sarily follow that the strict responsibility can be imposed on 
 an innkeeper for all property which his guest may choose to 
 bring into the inn, after he has been received infra hospitium; 
 
Wallibtg v. Miller & Co. 165 
 
 or that the latter may make the former a compulsory deposit- 
 ary of any amount of goods or treasure, which, during his 
 sojourn in the inn, he may desire to keep secure. The inn- 
 keeper is bound by law to receive the traveler and his goods, 
 and, for a refusal, in case he has sufficient accommodations 
 for him, he is liable not only to an action on the case for the 
 private damage, but to indictment for the public wrong: 3 
 Blackstone's Comm. 164; 4 Stephen's Comm. 296, note n. 
 Inns are instituted for passengers and wayfaring men; and 
 the keepers thereof can be held to the strict legal liability 
 only for such goods as are brought into their inns by travel- 
 ers in the character of guests. It would be too great a^ re- 
 sponsibility if that liability could be extended so as to cover 
 any conceivable amount of money or gold dust, which the 
 traveler, after he has become a guest, might be disposed to 
 thrust into the custody of his host, and thus compel him to be- 
 come the insurer of his safety. We think, in this case, it is a 
 question which the jury should decide: whether the bundle 
 was taken to the inn of the defendant by the plaintiff in his 
 character of guest, in which event the defendant's liability 
 would cover all losses, or whether, after the plaintiff became 
 a guest with the defendant, it was deposited there in the na- 
 ture of an ordinary bailment, in which case the defendant 
 would be bound to exercise no more, at the farthest, than or- 
 dinary diligence, and would be answerable, certainly, for 
 nothing more thaTi ordinary neglect. 
 
 Hew trial granted, costs to abide the event. 
 
 Walling v. Miller & Co. 
 
 (Ifl California, 38. Supreme Court, 1860.) 
 
 Garnishineiit of bailee of amalgam for coining. Defendants, express- 
 men, received a lot of amalgam to take to the mint and have converted 
 into coin. Jt belonged to five owners, one of whom. Carpenter, as- 
 signed his interest to the plaintiff. Defendants, after the assignment, 
 but before they had notice thereof, were garnished on behalf of a cred- 
 itor of Carpenter, on which garnishment they paid his share of the 
 money. Before pay m ant they had notice of the assignment: Rdd, 
 
166 Gold Dust. 
 
 that the assignment was valid; that Carpenter had no exclusive interest 
 in any part of the coin until it was converted into coin and divided; 
 that his right was a chose in action, which he could by an order assign, 
 and that the Statute of Frauds, requiring delivery of possession, had no 
 application to such a case. 
 Assignment before garnishment. An attaching creditor has no prece' 
 dence ovei' the assignee of the fund where the assignment is prior to 
 the service of the garnishment. 
 
 Appeal from Tliirteenth District. 
 
 Judgment for defendant below. The opinion states the 
 facts. 
 
 Hetdenfeldt, for appellant. 1. Tlie money attached was a 
 chose inaction, and belonged to plaintiff, having been assigned 
 to him before the attachment was levied. A chose in action 
 does not require immediate delivery on sale, as personal prop- 
 erty. 2. The proceeding by attachment is a garnishment, 
 which is in effect a suit against the debtor of the creditor's 
 debtor, and governed by the rules applicable to other suits: 
 Tramia v. Tait, 8 Ala. 576; Thomas v. Hopper, 5 Id. 444; 2 
 Cal. 33; 3 Id. 253, 363; 4 Id. 243, 409; 5 Id. 118. 3. Af- 
 ter assignment of a debt, it can not be garnisheed, even though 
 there was no notice of the assignment before the garnishment: 
 Dore V. Dawson, 6 Ala. 712; Baker v. Moody, 1 Id. 315; 
 Fortescue v. State Bank, 4 Id. 385; 2 Id. 177. 
 
 Baldwin, J., delivered the opinion of the court, Field, C. 
 J., concurring. 
 
 Defendants were expressmen, with an office at Conlterville, 
 in Mariposa county. One George W. Coulter was their 
 agent. Walling, the plaintiff, delivered to defendants a 
 quantity of amalgam, to be forwarded to San Francisco, to be 
 there Coined, and returned. This amalgam belonged to five 
 persons, who were partners in quartz mining, the plaintiff and 
 one Carpenter among them. On the first of July, 1858, 
 while this property was in th'e hands of these carriers. Car- 
 penter sold to plaintiff, for a valuable consideration, his in- 
 terest in this amalgam, and gave his receipt to the plaintiff, 
 evidencing the contract. The defendants the next day re- 
 turned to Coulterville with the coin made of the dust in San 
 Francisco, and deposited it with Coulter, their agent; and on 
 
Walling v. Miller & Co. 167 
 
 the same evening the coin was attached by a constable for 
 debts of Carpenter. The defendants had no notice of this 
 transfer to the plaintiff until after the attachment; but on the 
 next day the plaintiff gave notice to defendants, and demanded 
 the share of Carpenter in this coin, still in their or tlieir 
 agent's possession. Defendants refused to pay it over, but 
 afterward paid it to the constable. Upon these facts, the 
 judge found that the plaintiff could not recover, basing his 
 judgment upon the provisions of the Statute of Frauds, which 
 require possession of personal property to accompany and 
 follow a sale, in order to its validity as to third persons. In 
 this ruling, the court erred. The statute has no application to 
 such a case as this. The property was joint; Carpenter had 
 no defined and exclusive interest in any part, but merely a 
 common interest in all with his partners. Tlie property was 
 in constructive possession of all, the possession of the bailees be. 
 ing the possession of their principals. It was not money, but to 
 be converted into money. After it was so converted, it required 
 division before any particular portions of the coin became the 
 property of any one of the partners. The right of Carpenter 
 was a chose in action, which he could assign in any legal mode. 
 He could assign, it by order in favor of the purchaser or as- 
 signee. He did so assign. At the time of the assignment 
 there was no possibility of a manual delivery of the specific 
 coin to which lie was entitled. The order was a good assign- 
 ment of his right, after which Carpenter had no title to the 
 money, and his creditors, representing only his right, conld 
 not seize it for his debts. The case is not different from the 
 case of an order on a banker for a general balance, in which 
 case the order operates a complete assignment, and protects, 
 if the transaction be fair, and for a valuable consideration, the 
 money against the process of creditors. The service of the 
 attachment upon the defendants was only a garnishment; and it 
 is well settled that this does not give the creditor precedence 
 over assignees of the fund, when the assignment is prior to the 
 service of the garnishment. 
 
 Upon the facts, we think the plaintiff entitled to recover — 
 the payment to the officer, after notice,. being. no protection. 
 See Hardy v. Hunt, 11 Cal. 343, for the doctrine in such 
 cases. 
 
 Judgment reversed and cause remanded. 
 
168 Gold Dust. 
 
 Hellman v. Holla day. 
 
 (1 Woolworfch, 365. U. S. Circuit Court, District of Nebraska, 1868.) 
 
 ' Surreptitious carriagre of gold dust. If a passenger surreptitiously 
 
 introduce into a coach an article of great value (gold dust) with the 
 
 . view of getting it carried for nothing when the carrier is accustomed to 
 
 charge for such service, he is guilty of a gross fraud, and in case of loss 
 
 can not recover. 
 
 Contract, after fraud known. But if, notwithstanfling the passenger's 
 intention to defraud him, the carrier, after learning of the fact, charges, 
 arid the passenger pays for carrying the article as extra baggage all the 
 charges usual therefor, then the carrier is liable for the value of the 
 article, if lost. 
 
 Proof of freight paid. It is for the jury to determine whether the carrier 
 received the compensation knowing the baggage to contain gold; and 
 if he did he is liable for it without regard to the rates charged. 
 
 Hellman &Cahn, partners, sued Holladay for $10,114:, for 
 gold dust of that value, lost while being transported on the 
 defendant's sta2;es. The circumstances, as detailed in the pe- 
 tition were, briefly stated, these: 
 
 The defendant was the proprietor of a line of stages and of 
 a treasure express, running from Great Salt Lake in Utah via 
 Denver in Colorado to Omaha in Nebraska. Caiin took pas- 
 sage at Salt Lake for Omaha, and jjaid the usual fare, beino- 
 $300; and having a quantity of gold dust, the defendant un- 
 dertook to carry that for $5 per $1,000 extra, which said Gahn 
 then and there paid. Near Fort Bridger this gold dust was 
 lost off the coach by reason of the unskillful driving of the 
 coach by the defendant's driver who became intoxicated, and 
 also, because the gold dust was placed in the boot of the 
 coach, and not there properly secured. 
 
 To meet this case the defendant in his answer alleged that 
 his " treasure express" was conducted by means of messengers 
 who accompanied all articles to be thereby carried, and used 
 iron safes and other precautions for carrying them safelv, 
 and the charges on articles so carried were at the rate ot ■ 
 $50 per $1,000; that all passengers on tlie coaches were ad- 
 vertised of that fact, and that the defendant would not be re- 
 
 ^ First Nat. Banlc v. Marietta E. R., 20 Oh. St. 259; 5 Am. Rep. 655; 
 Mich. Cent. B. B. v. Carroui, 73 111. 34S; 24 Am. Eep. 248. ' 
 
Hellman v. Holladay. 1G9 
 
 sponsible for, and forbade the carrying of gold dust by pas- 
 sengers, because the line ran through a country little fre- 
 quented and where exposures to robberies and Indian attacks 
 were great; that said Oahn introduced the gold dust into the 
 coach surreptitiously and paid for it as extra baggage without 
 informing the defendant's age.nts, and without their knowing 
 that it was valuable; that Cahn placed his baggage in the boot 
 of the coach, and gave to tlie driver the liquor by which he was 
 intoxicated. 
 
 The suit was originally commenced in one of the district 
 courts of the late Territory of Nebraska, and on the organi- 
 zation of the Federal courts in the State was transferred to 
 this court on account of the citiztenship of the parties. At 
 tiiis term it came on to be tried before the court and a jury. 
 
 It appeared from the evidence that there were several pas- 
 sengers on board the coach, traveling in company with the, 
 said Cahn; that they had with them a large quantity of gold 
 dust, for which, neither as treasure nor extra baggage, did 
 they pay anything at Salt Lake City. They had proceeded 
 in the stage some forty miles, to a station known as Millers- 
 ville, when the general superintendent and the local agent of 
 the stage line came to the coach, and told them that telegrams 
 had been received from Salt Lake that tliey had extra baggage; 
 that the baggage must be weighed, and they must pay for 
 whatever exceeded 100 pounds to the passenger, at prescribed 
 rates, as extra basjorasre. A good deal of bagojawe was taken 
 out, weighed, paid for and replaced. 
 
 The plaintiffs introduced evidence tending to prove that at 
 this time Cahn told the general superintendent that he had 
 the gold dust here sued for, and before his eyes placed it in 
 fi carpet bag, and the driver placed it in the boot; that he 
 paid for it as extra baggage, with the full knowledge on the 
 part of the defendant's agents of its nature. 
 
 The defendant showed by the evidence the manner in which 
 lie carried treasure, the rates charged by him therefor, and the 
 notice to passengers limiting his liability, as charged in his 
 answer. He also introduced evidence tending strongly to 
 show that the gold dust was surreptitiously and fraudulently 
 introduced into the coach by Cahn at Salt Lake; that his 
 agents, neither there nor at Millersville, knew his baggage 
 
170 Gold Dost. 
 
 contained articles of such value; and that he or his compan- 
 ions, with his assent and even encouragement, gave to the 
 driver the liquor which he drank; and that he placed the car- 
 pet sack in the hoot of the coach, or caused the driver to place 
 it there, without knowing its contents. 
 
 The defendant requested the court to instruct the jury 
 (among other things) as follows: 
 
 " If the jury believe from the evidence that Cahn assisted or 
 encouraged his fellow passengers in getting the driver drunk; 
 that he caused him to put the carpet bag containing the gold 
 dust in the boot of the coach, the driver not knowing that it 
 contained gold dust; that he surreptitiously introduced the 
 gold dust into the coach at Salt Lake to avoid paying the 
 rates chargeable in the express, and at Millersville paid for it 
 as extra baggage only, and at the rates chargeable therefor, 
 then you will iind for the defendant." 
 
 Messrs. Kbdiok & Beiggs, for the plaintiffs. 
 
 Mr. PoppLETON and Mr. "Woolwoeth, for the defendant. 
 
 Mr. Justice Millee. 
 
 I can not give this request as drawn. There is evidence 
 here which it ignores. It was evidently framed with the pur- 
 pose of shutting out from the consideration of the case certain 
 evidence introduced by the plaintiff. The credibility of that 
 testimony is not for us to pass on. It is for the jury. Tlie 
 jury must be instructed upon the law as it stands on the 
 whole of the evidence. The testimony which I refer to as 
 not taken account of in the request is that of the plaintiff, 
 tending to show that when the payment was made for extra 
 baggage, the defendant's agents knew that the carpet sack 
 contained gold dust, and knowing that fact, charged for it 
 only the rates usual for extra baggage. 
 
 I agree with'the defendant's counsel that if Cahn introduced 
 the gold into the coach secretly at Salt Lake, and attempted 
 to get it carried for nothing, he was guilty of a gross fraud. 
 If that were the whole of the casfe he could not recover here. 
 In this view of the case it may, upon the authorities, be 
 
Hellman v. Holladay. 171 
 
 doubtful even whether it is incumbent to bring home to Cahn 
 notice that the carrier would not be liable for gold thus 
 carried. In that view the case would, without any evidence, 
 show an intentional concealment in order to escape payment 
 for a service rendered to the passenger by the carrier. That 
 would be a fraud, and the law would not aid the party prac- 
 ticinu; it. It would be a fraud by which the passenger, with- 
 out i^ayment, would secure an advantage, and if he could 
 recover for a loss, it would be a great advantage. It would be 
 forcing a contract on a carrier which he did not make. 
 
 The case of the Orange County Bank v. Brown, 9 Wend. 
 116, is precisely in point. A traveler on a steamboat on the 
 Hudson river took $11,250, to be carried for the plaintiff. He 
 placed it in his trunk, which, with its contents, was lost on 
 board.^ The plaintiff sought to recover the money as lost 
 baggage. Mr. Justice Nelson, in an able opinion, held that 
 this amount of money was too large to come under the head 
 of "baggage," and that an attempt to have it carried free of 
 reward under the cover of baggage was an imposition upon 
 the carrier, and that' he was deprived of his just compensa- 
 tion, and subjected to unknown risks by snch devices. 
 
 But that case and the many others in wliich it has been 
 followed is distinguishable from this in the particulars which 
 I have mentioned. Here there is evidence tending to show 
 that the carrier knew that the baggage contained the gold. 
 
 If he did, he was not deceived. Cahn may have intended to 
 deceive and defraud him. If he did, he failed to do so. 
 
 If the carrier knew that the carpet sack contained the gold, 
 and took not the usual rates chargeable for gold, but only 
 such as were chargeable for ordinary extra baggage, then he 
 was not defrauded. The Orange County Bank case proceeds 
 throughout on a state of facts which, as the plaintiffs claim, 
 differs from that shown here. Whether they are right, we 
 must leave it to the jury to say. This instruction does not do 
 so, and we can not give it as requested. 
 
 The other matters referred to in the request are properly 
 submitted to the jury. 
 
 I will give the request modified according to the views I 
 have expressed. 
 
 The jnry returned a verdict for half of the sum claimed, 
 thus dividing the loss between the parties. 
 
172 Gold Dust. 
 
 Ceeighton et ax,, v. Vandeelip et al. 
 
 (1 Montana, 400. Supreme Court, 1871.) 
 
 Contract subsequent to not*. An agreement reducing: the rate of interest 
 on a note payable in gold dust, extending time of payment and setting 
 apart property to secure such payment. Held, no merger of the orig- 
 inal contract to pay the gold dust. 
 
 ' Merger. A- note is not m«rged in an agreement which does not by its 
 terms or by legal intent deffiat a right of action thereon. 
 
 ' Situation of contracting parties. The situation of the parties at the time 
 of entering into contract relations may be considered by the court in 
 interpreting their acts. 
 
 Appeal from the First District, Madison County. 
 
 Tiiis case was tried by a jury, in November, 1870, and a 
 verdict rendered for defendants. The court, Wakeen, J., 
 overruled the motion for a new trial, and Creighton appealed. 
 The facts appear in tlie opinion. 
 
 H. N. .Blake, for appellants. 
 
 "W. Y. LovELL, W. F. Sandees and S. Woed, for respond- 
 ents. 
 
 Wade, 0. J. 
 
 This case conies into this court upon appeal from an order 
 in tlio court below, overruling a motion for a new trial. 
 
 Tlie complaint is founded upon a written instrument, of 
 which the following is a copy : 
 
 " ViEGiNiA Crry, M. T., Nov. .5, 1867. 
 "Six months after date we, or either of us, promise to pay 
 to Norval Harrison and Columbus Hampton, or order, two 
 hundred and twenty-two ounces four and one half penny- 
 weights of clean gulch gold dust, or its value, with interest at 
 the rate of five per cent, per month until paid. 
 
 '' F. D. Vandeelip, 
 " W. H. Thomas, 
 " John MoKobeets." 
 ^ Spited V. Bann, 15 Am. Dec. 81, note. 
 ' Richards v. SchUgelmich, 3 M. R. 78. 
 
Cbeighton v. Vanderlip. 173 
 
 The complaint avers, that for a valuable consideration, on 
 the 16th day of March, 1868, this note or contract was trans- 
 ferred by Harrison & Hampton to plaintiff's, and that plaint- 
 iffs are now the owners thereof, and that on the ^8th day of 
 July, 1868, the plaintiffs entered into an agreement with said 
 Thomas and McEoberts, whereby the rate of interest to be 
 paid on said instrument was to be computed at the rate of five 
 per cent, per month from the 16th day of March, 1868, to the 
 18th day of July, 1868, and at the rate of three per cent, per 
 month from the 18th day of July, 1868, until the same should 
 be paid. That no part of the principal or interest has been 
 paid, and that the same is now due to plaintiffs. 
 
 The defendant, Yanderlip, does not answer. The separate 
 answer of defendants, McRoberts and Thomas, admits the 
 execution and delivery of the note or contract described in 
 complaint, the assignment thereof to plaintiffs on the 16th 
 day of March, 1868, and the agreement as to the rates of in- 
 terest as specified in said complaint. But said defendants, 
 defending against tlie cause of action set forth in the complaint, 
 aver, that on the 18th day of July, 1868, at Virginia City, 
 Montana Territory, said plaintiffs, under the firm name and 
 style of P. A. Largey (that being one of the firm names of said 
 company), entered into an agreement with said defendants, 
 Thomas and McRoberts, for a valuable consideration, where- 
 by it was promised and agreed, in consideration of tlie cove- 
 nants and promises in said contract contained to be done and 
 performed by said defendants, the said plaintiffs did then and 
 tliere and thereby release these defendants from any and all 
 liability on the note or contract in the complaint set fortb and 
 described. 
 
 The agreement whereby these defendants claim to be re- 
 leased and discliarged from tho obligations of the note or eon- 
 tract upon which this suit is instituted, and from all liability 
 thereon, is in the words and figures following, to wit: 
 
 " Agrekment." 
 
 "This agreement, made and entered into on this 18th day 
 of July, A. D. 1868, by and between Patrick A. Largey of the 
 first part, and William H. Tliomas and John McRoberts of 
 the second part, witnesseth: 
 
174 Gold Dust. 
 
 " "Wheeeas, tlie said Thomas and McEolierts did, on the 
 5th day of November, A. D. 1867, with one Frederick D. 
 Vanderlip, make, execute and deliver to Columbus Hampton 
 and Norval Harrison their certain promissory note, whereby 
 they promised to pay and did obligate themselves to deliver 
 to said Hampton and Harrison, for a valuable consideration, 
 the amount of 222 ounces 4^ pennyweights of clean gold 
 dust, or the sum of $4,000 in gold, the value of said gold 
 dust, with interest from date at the rate of five per cent, per 
 month until paid, and payable in six months from date of said 
 note, which said note was secured by said Yanderlip by a cer- 
 tain mortgage duly executed and recorded, a reference for a 
 full and perfect description of the same is hereby made to the 
 copy of the same hereto attached and made part of this agree- 
 ment; and, 
 
 " Whereas, the said Columbus Hampton and Norval Har- 
 rison did, for a valuable consideration, sell, assign, transfer 
 and set over said note and mortgage, for a valuable considera- 
 tion, on the 16th day of March, A. D. 1868, to E. Creighton 
 & Co.; and, 
 
 ""Whereas, the said Vanderlip, Thomas and McEoberts 
 liave failed to paj' said note; and, 
 
 " Whereas, the said P. A. Largey has commenced suit on 
 the same, in the District Court of the First Judicial District, 
 in and for the County of Madison and Territory of Montana, 
 by attachment; and, 
 
 " Whereas, the said writ of attacliment has been levied 
 upon certain property of said Thomas and McRoberts; 
 
 "Now, therefore, in consideration of the sum of $1 each to 
 the other paid, by the parties to this agreement, and the 
 further consideration of the settlement of said suit, and all 
 matters in dispute in difference by and between the said 
 Largey, Thomas and McEoberts, by reason of said note being 
 unpaid, it is agreed: 
 
 " 1. That said Largey, his heirs or assigns, shall dismiss 
 his said action in the District Court now pending, and release 
 all of the said Thomas and MeEoberts. 
 
 " 2. That the said Largey,his heirs or assigns, agree with the 
 said Thomas and MeEoberts, that the only interest to be com- 
 puted at five per cent, per month, from tlie 16th day of March, 
 
Ckeighton v. Vanderlip. 175 
 
 A. D. 1868, until tlie 18th day of July, 1868; and from and 
 after that day the interest to be computed; and it is expressly 
 agreed that though the said note calls for five per cent, inter- 
 est per month, the same shall only bear interest and be com- 
 puted as against the said Thomas and McRoberts, at the rate 
 of three per cent, per month until paid; and that the said 
 Largey agrees and binds himself, hia heirs and assigns, to 
 forbear suit, to prosecute or in any manner to enforce the col- 
 lection of said note or interest on the same, as against or 
 from the said Thomas and McEoberts, for the space of one 
 year from the said date of July 18, 1868. 
 
 " 3. It IS further agreed, that in order to enable the said 
 Thomas and McEoberts, their heirs and assigns, to pay said 
 note and interest out of the property named in said mortgage, 
 to wit: the ditch, right of water and mining ground therein 
 named, that the said Largey agrees and binds himself to at once 
 deliver the quiet and peaceable possession of all the property 
 named in said mortgage to the said Thomas and McEoberts 
 upon the following terms and conditions, to wit: that is to 
 say, that. said Thomas and McEoberts shall take charge of all 
 of said property, use and work the same to the best advantage, 
 by the sale of water or the working of said mining ground, as 
 in the judgment of the parties hereto may seem best for the 
 interest of all the parties hereto; and after deducting all 
 necessary expenses and charges, shall pay all moneys and gold 
 dust that may come into the hands of said Thomas and Mc- 
 Eoberts from said property, from any source therefrom unto 
 the said P. A.. Largey, his heirs or assigns; which money or 
 gold dust so paid and received by said Largey shall be appro- 
 priated and applied by him or his assigns, in the manner fol- 
 lowing, to wit: 
 
 "First, to the payment of a certain promissory note or to 
 any sum that may be now due thereon, or the interest that 
 may be due or to become due, which said note is also named 
 and set out in said mortgage, and now owned by said P. A. 
 Largey, calling for 222 ounces, 4^ dwts. of clean gold dust, 
 or equal to $4,000 in gold, with interest from date until paid 
 at five per cent, per month, and dated November 5, 1867, and 
 signed by F. D. Yauderlip and one James McEvily; and after 
 the payment of said note and interest, as aforesaid, then the 
 
176 Gold Dust. 
 
 said P. A. Largey or his assigns sliall apply all money or gold 
 dust, as paid by said Thomas and McRoberts from said prop- 
 erty named in said mortgage, after deducting actual expenses 
 of said Thomas and McRoberts as aforesaid, with the interest 
 to be computed at three per cent, per month, as named in said 
 note, from said 18th day of July, 1868, until paid; and that 
 when said several notes with tlie interest thereon shall have 
 been paid said Largey or his assigns, as aforesaid, by said 
 Thomas and McRoberts, then and in that case it is ajjreed 
 and the right of possession and occupancy to all of the prop- 
 erty named in said mortgage is hereby given and continued 
 in and to said Thomas and McRoberts or their assigns, for 
 such length of time as may be necessary, by reasonable use 
 and work of said ditch and ground as aforesaid, until the said 
 Thomas and McRoberts sliall have reimbursed and paid back 
 to themselves all the money or gold dust, with interest, at 
 said rate, that they may have paid upon said note, as signed 
 by said Yanderlip, McHoberts and Thomas, to said P. A. 
 Largey; and when so reimbursed and paid back in full, 
 then they shall, without process of law, return and deliver 
 the property so held by them to the said Largey or his as- 
 signs. 
 
 "4. It is further agreed and understood by and between 
 the said parties hereto, that in the event that said ground and 
 the rent or sale of water from said ditch, or the diversion of 
 the water from such ditch, if by any or from any of said 
 causes the said Thomas and McEoberts are prevented from 
 paying said notes last named and the interest thereon, then 
 and in that case, after reasonable time and fair eifort by said 
 Thomas and McRoberts, then and in that case the said P. A. 
 Largey binds himself, his heirs and assigns, to rebate and not 
 require or demand any interest whatever of the said Tliomas 
 and McRoberts, but that all payments that may have been 
 made by them shall be deemed, atid are liereby declared to be, 
 payments of the debt and principal of said note. 
 
 " 6. It is further agreed and understood that to the enjoy- 
 ment and fulfillment of the promises, agreements and under- 
 takings, as herein expressed, that said P. A. Largey or his 
 assigns agree and bind themselves that they will place the said 
 Tliomas and McRoberts in the quiet possession of all the 
 
Ceeighton v. Vandeklip. 177 
 
 ■property herefa named jatid -that he will maintain and-kfefep 
 .^ood said possession without and free of expense to said 
 ■Thomas and McRoberts.- ■ ' ' ' ' ' . 
 
 1 ':6.' It is further agreed, that to semire the payment of 
 said kst mentioned note and the faithful execution of tliis 
 aoreement, that the said Thomas and McEdberts shkll cause 
 to be made and exeeuted t-o the said Largey or'his assigns- a 
 mortgage by G. W. Allen of an undivided one fourth inter^ 
 est in alltlle property now bwhfed by the Higihland and Pine 
 Grove Fluming Company, of Madison county, M; T.,''and of- 
 three hundred feet square of mining ground on East Bvvmuier 
 Dan Hill,, in Fairweather district, county and territory aforesaid- 
 ■ "7, It is further agreed and understood by and "betweetf 
 the parties hereto, that for the faithful and perfect. eieuution 
 and performance of each and every agreement and undertak-' 
 ing as herein expressed, we do Mnd ourselves, each in the 
 penal sum to the other, of ten thousand dollars, to be well and" 
 truly made. ■ ■■ , ; i 
 
 " "Witness whereof- we have each set our hands and seals,' 
 ihis 18th day of July, A. D. 1868. ■ ■ 
 
 " P. A. Largey, [l. s.] 
 
 ; " "W. II. TnosiAS, [us.] 
 
 ; ; .' -. - -"■ John- McEobeetsj ■ [l. s.]; 
 
 " Signed in our presence. .' 3 
 
 , ■, " "Wm. Y.- LpTELt, . ; ' . ' ' ' ■ ■■ -1 
 
 ''G. W.Allen. , . ■ ...; ■ -.1 
 
 ^ " Done in duplicate.;" .. i „., , .•-... 
 
 To the introduction of -this agreement in evidence by the 
 defendants, the plaintiffs objected, upOn the gi'ound rtiat it is 
 lio defense to the contract for gold dust; that it does not sup- 
 port the averments of the ansWel", ahd that, if plaintiffs' are 
 lla-ble thereon, their prbper remedy is a suit upon the agree- 
 ment. These objections to the agreement were overruled, and 
 tiie agreement received in evidence. This action of thtf court 
 is assigned k>r erroi-j'findthe main'qiiestion presented bj, this 
 record is as to -the admissibility of the' Ibregoing agreement in 
 evidence, under' the pleadings ih this case. ' ' 
 
 The defendants aver, in their answer, that the agreement of 
 July 18, 1868, reled,Sed them from 'all liability upon the con- 
 tract for gold dust, and that they are wholly "dipcharged from 
 ! yOL. VII.' — 1,2 .'.. -•'■ ^. ...... . '-•■■ ;-- -- (-■ i-V -'.. 
 
178 Gold Dust. 
 
 the obligations of the same. It is claimed by defendants that 
 tliis agreement is a merger of the gold dust contract; that it 
 was designed to, and that it does, take the place of said contract, 
 and that, by reason of this agreement, a right of action upon 
 the contract or note, in complaint described, has ceased. . 
 
 It thns becomes necessary to ascertain, by careful analysis 
 and interpretation, the true intent and meaning of the, agree- 
 ment of July 18, 1868. 
 
 At the time this agreement was made, the contract for gold 
 dust (or note, as I will hereafter call it for convenience) had 
 become due, and a suit in attachment had bepn commenced 
 against defendants, including defendant Yanderlip, and this 
 situation of the parties we have the right to consider, to ena- 
 ble us to properly interpret their acts. The plalntiifs were 
 demanding their pay upon the note then due and unpaid; 
 the defendants could not meet this obligation, ahd this agree- 
 ment was the result of this situation. Was it the intention 
 of the parties thereto, and did they in terms merge the note 
 in the agreement, and thereby abandon and lose their rights 
 and interests in the note? The answer to this question will 
 decide the case. 
 
 The stipulations of the agreement: 
 
 (1.) Caused the suit in attachment to be dismissed and 
 settled. 
 
 (2.) It changed the rate of interest on the note from five 
 per cent, to three per cent, per month. 
 
 (3.) It extended the payment of the note for one year, from 
 July 18, 1868, 
 
 (4.) It stipulated to deliver ditch and mining property 
 therein described to defendants Thomas and McKoberts, and 
 from the proceeds thereof to pay, first, a note held and owned 
 by plaintiflPs against Yanderlip and one James McEvily, for 
 two hundred and twenty-two onnces and four and one half 
 pennyweights of gold dust; and, second, to pay the note in 
 the complaint described; and, third, to remain in possession 
 of said property, and to work tlie same nntil they should 
 fully reimburse themselves, and pay back to themselves all 
 the moneys or gold dust that they should so pay on said notes. 
 
 (5.) If, from any cause, defendants are hindered or pre- 
 vented, by rent or sale of ditch and mining property, from 
 paying notes, then the plaintiffs bind themselves to rebate all 
 
Ckeighton v. Vanderlip. 179 
 
 interest on note in complaint described, and the payments that 
 have been made to be applied upon the principal of said note. 
 (6.) To further secure the payment of said notej the de- 
 fendants a^ree to canae one George W. Allen to execute and 
 deliver to plaintiffs a mortgage of one undivided one fourth 
 interest in the Highland and Pine Grove Eluming Company 
 of Madison County, M. T. 
 
 It will be observed that the note, as a distinctive, separate 
 obligation, is nowhere lost sight of in this agreement. The 
 rate of interest is changed from five to three per cent, per 
 month, but the note is still to bear interest and to be in full 
 force and operation for that and all other purjjoses. The 
 time of the payment is delayed for one year, but at the end 
 of the year the amount due thereon could have been demand- 
 ed, and can it be doubted that a suit thereon could have 
 been instituted and payment enforced, notwithstanding this 
 agreement? 
 
 The full force and effect of this agreement was to extend 
 the time for the payment of the note, and to reduce the rate 
 of interest thereon, and it operates simply as, collateral secur- 
 ity to the note. The note was due. The plaintiff promised 
 to delay payment, but in consideration of such promise, he 
 was to receive a mortgage against Allen, and the note against 
 Yanderlip and McEvily was to be paid. 
 
 The agreement operates to place in the hands of the de- 
 fendants the means whereby to pay the note, and every pur- 
 pose and intent thereof was to create security for the pay- 
 ment of the note; and if there has been a failure to perform 
 this agreement by the plaintiffs, on their part, an action could 
 be maintained ag.iinst them thereon; but whether the agree- 
 ment itself fixes the measure of damages, and whether it could 
 be set up as an equitable defense to this note, it is not now 
 necessary to, determine. 
 
 The agreement operates to delay the payraeuit of the note, 
 and where, the promisee of a note, payable at a day certain, 
 contracts, at the time the note is^ given or after it has become 
 due, not to demand payment of it until a certain time after its 
 maturity, such conduct is a collateral promise, for the breach of 
 which, if there be a legal consideration, an action may lie, but 
 it will not bar an action on the note when due by the terms of 
 
180 GoLD.DrsT. 
 
 it: i Ma88. 414. An agreement, to bperate as a merger of a, 
 note, must be such a one as by its terms, or by its legal intent 
 and meaning, would defeat a right of action. on the note. 
 
 This agreement was offered and received in evidence to 
 support the allegation of the answer, that the agreement re- 
 leased defendants from all liability on the note. "We are of 
 opinion that the agreement does riot operate to that extent, 
 arid that it does not support the allegation of the answer; and 
 upon the principle that the evidence offered must correspond, 
 with the allegations, and be confined to the point in issue, the, 
 agreement was improperly received in evidence under the 
 pleadings in the case. 
 
 It may be proper to remark that, although the dams^ges that 
 may have resulted to the defendants by a breach of this con-, 
 tract on the part of the plaintiffs niay have been; set up as an 
 offset to the note (a question we do not think necessary to, de- 
 cide), yet there are no allegations of damages for the breach- 
 of said oo'ntract in the answer; which would entitle the de- 
 fendants to prove the same.. <• , 
 
 The order overruling the motion for a new trial is set aside,, 
 judgment reversed, arid cause remanded for further proceed- 
 ings. ; 
 
 Exceptions sustavaeH. ■ 
 
 \. Liability of common carrier for loss of gold dust: Fay v. Steamer, i 
 M. E. 417. Innkeeper liable:' Pinhertdny. Woodwdrd, 33 Cal. 658. 
 
 2. Passing counterfeit, without guilty knowledge, no offense: Petiple r,' 
 Sloper, 1 Ida. 158. 
 
 3. Indictment for having instruments in possession for counteifeiting: , 
 People V. Paye, 1 Ida. 102. Passing debased gold dust: Same v. Same, Id. 
 190. 
 
 4. Stealing from IT. S. mails: Farnum v. U. S. 4 M. R. 192; U. 8. v. 
 Montgomet't/, 3 Saw. 544. 
 
 5. J Gold, dust named as consideration in ^ deed, held equivalent to cur- 
 rency, not to coin : Taylor v. Holler, 3 M. R. 322. 
 
 6. 6o!d,dust is not "cash," but merchandise; but may by conduct of 
 parties be frea,ted as money': Gunter v. Sanchez, 1 Cal. 45; Huff t. Mc- 
 Donald, 22 Ga. 131; Post Tenant in Common; Wendtv. Ross, 33 Cal. 650. 
 
 7. Not regarded as "net profits " or the same as "money received '": , 
 Fletcher v. Hawkins, 2 R. I. 330; Post Paktner; Waring, v. Cram, 1 
 Pars. Eq. 516; Post Prosp. Cont. 
 
 8. Note payable in, not negotiable: Houghton v. Ely, 26 Wis.- 206. 
 
Ja'Nes v. Scott. 181 
 
 Janes v. Scott et al. 
 
 (59 Pennsylvania State, 178. Supreme Court, 1868.) 
 
 " Well and faithfully perform." A contract guaranteeing the faithful 
 performance of a contract is not a mere guaranty of the skill and fidelity 
 of the principal. ; 
 
 Previous suit against principal. Defendant guaranteed that Burke should 
 fulfill a contract for sinking an oil well. Burke did not fulfill tlje contract. 
 It was not necessary to liquidate the damage against Burke before pro- 
 ceeding on the guaranty. 
 
 ' Insolvency of principal. Where the principal is insolvent at the maturity 
 of the debt, neither judgment a,nd execution, nor demand upon him, nor 
 notice of non-payment to the guarantor, are necessary before suing the 
 latter. 
 
 Accident — Act of God. A guaranty that the principal shall perform a work 
 requiring skill, includes the accidents pertaining to the business, and the 
 guarantor will be excusable only from those inevitable occurrences des- 
 ignated as the act of God. 
 
 Test of insolvency. The test of the insolvency of the principal debtor is 
 what might be recoverable by process — not what it might be supposed 
 he would do voluntarily. 
 
 October 20, 1869. Before Thompson, Q. J., Eead, Agnew 
 and Shaeswood, JJ, 
 
 Error to the Court of Gommon Pleas of Erie County, No. 
 125, to October and November Term, 1867. 
 
 This was an action of assumpsit, by William L. Scott and 
 others against M. W. Janes, commenced December 4, 1865. 
 The plaintiffs declared upon a guaranty by defendant for the 
 fulfillment of a contract of one Burke to turnish the machin- 
 ery, etc., and dig. an oil well for tliem; ihey averred that 
 Burke had not fulfilled his contract and was insolvent. 
 ' The -contract with Burke was dated August 3, 1865; he 
 was to furnish all the machinery, etc., and drill an oil well 4^ 
 inches in diameter, to complete it to the depth of 620 feet, and- 
 to test it by pumping one- week; and if then the well had to 
 be dug deeper than 620 feet, the additional digging was to be- 
 prosecuted by Burke at $6 per foot, he running all risks, and 
 thetest pumping to bedone after the additional drilling; all the 
 
 > Woods V. Sherman, 71 Pa. St. 100. 
 
182 Guaranty. 
 
 machinery, etc., to be furnished at Burke's cost, and delivered 
 to the plaintiffs on or before the 20th of September, 1865. 
 TheT)laintiffs were to pay $6,100; $3,850 when the machin- 
 ery, etc., should be on the ground, and the balance to be paid 
 as the well went down at the end of each 50 feet, the plaint- 
 iffs reserving 25 per cent, until the completion of the contract, 
 when the whole was to be paid. It was further stipulated 
 that unavoidable accidents should be allowed for in computing 
 the time for the completion of the well. 
 
 The giiarauty was as follows: 
 
 "For a valuable consideration to me in hand paid, I guar- 
 anty to saJd second parties, their executors, etc., that said 
 Burke shall well and faithfully perform his part of the fore- 
 going contract. 
 
 " M. W. Janes." 
 
 Burke was examined as a witness. He testified that he 
 furnished the machinery, which cost him a little more than 
 the first payment on the contract, and drilled 560 feet; on 
 the 4th of October his tools got fast; he hired two skillful 
 and experienced "tool fishers" to help him, and ])aid them 
 $100; they could not get them out and gave it up; he left 
 i,he work on the 20th of October; he asked the agent of the 
 plaintiffs for more money to help to get the tools out; the 
 bgent told him if he could not stay to put it into the hands of 
 some good man ; he went to the well, got sick, and assigned 
 his contract to another man. He further testified that he 
 was then not worth any property but a horse, had between 
 $400 and $500 in money, was not in debt, had no judgments, 
 and had always paid his debts, the plaintiffs retained 25 per 
 cent, out of the money he had earned, and that he had re- 
 ceived $1,370 in addition to the first payment, but had drilled 
 sixty feet for which nothing had been paid. 
 
 There was other evidence of the efforts made by Burke and 
 that he did all that could be done to get the tools out. On 
 the 4th of December, 1865, the agent of the plaintiffs gave 
 Burke notice that as he had neglected to drill the well accord- 
 ing to the contract they would take possession of the prem- 
 ises, complete the well at his expense, and hold hira respon- 
 sible for all damages accruing for the non-fulfillment of his 
 contract. 
 
Janes v. Scott. 183 
 
 Three of the defendant's points were the following: 
 
 2. The action being brought for damages for. the non-com- 
 pliance, on the part of Bnrke, with the contract with the 
 plaintiifs upon the guaranty of the defendant, the amount of 
 damages being uncertain, the plaintiffs can not sustain this 
 action against the guarantor until they have established the 
 amount of damages they have sustained by an adjudication 
 in aii action against Burke, and satisfactory evidence of the 
 inability of Bnrke to pay the judgment. 
 
 3. If the jury believe from the evidence that Barke was 
 prevented from finishing the. well according to his contract 
 by an unavoidable accident, and it was not caused by or for 
 the want of ordinary skill or good faith, the plaintiffs can not 
 recover in this case. ■ 
 
 4. If the plaintiffs are entitled to recover at all, there can 
 be no recovery beyond nominal damages, the plaintiffs not 
 having proven any actual damages. 
 
 The Court (Johnson, P. J.) charged: 
 
 * * * "Our construction of that contract is, that it is an 
 entirety, so intended by the parties, so clearly expressed in it, 
 and proven by inference from that clause, in the latter part of it, 
 which provides for an extension of time for the completion of 
 tlie job in the case of accidents, etc., that might necessarily 
 retard the work. 
 
 "As we interpret this contract, his pay for the job was 
 contingent upon his success in completing it. He could not 
 do part of it, quit and ask pay for what he had done. He 
 did not complete it. (But it is said its completion became 
 impossible without fault of his. His rimer stuck and could 
 not be extracted. This is doubtless true; all reasonable effort 
 was made to do so. But it does not follow the performance 
 of his contract was thereby rendefed impossible. There was 
 plenty of room and opportunity to start and sink another hole 
 to the required depth. This was to be allowed by the contract 
 for just such a contingency'. But he chose rather to forfeit 
 the contract and abandon the work. The hole he made and 
 the work he did was of no use or value whatever to the plaint- 
 iffs. He was therefore entitled to nothing for it. The plaint- 
 iffs were not bound to accept or pay anything for a hole part 
 dug and then spoiled.) 
 
184 ' Guaranty. 
 
 "NoraiTi I prepared to say that if the accident was in- 
 evitable, and had rendered iiis performance of the contract 
 impossible, that he would have been relieved from the opera- 
 tion of the same risk. But as no such iraposgibiljt^ existed 
 the question does not arise. 
 
 (" It is also argued on behalf of Burke, that he had not 
 been paid up in full for the work he had done, and therefore 
 had aright to quit and throw up the contract. It is enough 
 to say in reply that he made no such allegation, and gave no 
 such reason fov quitting. Though a witness on the stand, he 
 does not pretend there was money due him and withheld, or 
 demanded and refused. He says he quit because his tools were 
 fast, and he got out of funds and was discouraged. It is 
 therefore unnecessary to go into any calculation to see whether 
 he had been overpaid, as claimed by the plaintiffs, or had done 
 work in excess of the payments made, as alleged, by the coun- 
 sel for the defendant.) 
 
 ("The whole amount received by, him was $5,220; out of 
 that he is entitled to credit of whatever he expended for en- 
 gine, tools and derrick. Whether that was more or less than 
 the $3,850 paid in hand for that purpose, the jury must de- 
 termine. 
 
 "For the balanpe, whatever it is, the plaintiffs would be en- 
 titled to recover a verdict if this suit was against Burke.) 
 
 (" Are the plaintiffs entitled to recover it against the pres- 
 ent defendant? His undertaking was also a contingent one 
 depending upon Burke's ability to pay the amount of his lia- 
 bility when this suit was brought. He testifies that he had 
 no property except a horse, value not given. It is not unfair 
 to presume the exemption laws would have protected that. 
 He had $400 of money, the proceeds of his labor in previous 
 times, and no part of that received from plaintiffs. That 
 could not have been seized without his consent. 
 
 " If a judgment had been recovered against him, would an 
 execution for the amount of this claim, ranging trom $1,370 
 io $2,000, or whatever sum yon find the plaintiffs entitled 
 to recover, liave probably been paid or could its collection 
 have. been forced? These are questions entirely for the jury. 
 If sfuoli an effort w6uld have been, fruitless, then the law does 
 not require it to be made. The question of his solvency is not 
 
Jaj^es v. Scott. 185 
 
 confined to Ins ability to pay his other debts'. But was he 
 solvent for the payment of this cUiin? If so, this action can 
 not be sustained. If not, the suit was rightly brought a£;ainst 
 the present defendant as his guarantor, without any previous 
 proceedings against Burke.) The law as understood by us, 
 and already stated in our. general charge,- requires us to an- 
 swer the defendant's 2d, 3d and ith points in the negative, 
 and to give our approval to the first one." 
 • The verdict was for the plaintiff's for $1,527.55. 
 - The defendant took a writ of error. He assigned for error 
 the answers to his points and the Several parts of the charge 
 included in brackets; the last part being the 8th assignment. 
 
 J. 0. Maeshall and J. H. Walkee, for plaintiff in error. 
 
 The plaintiffs should have liquidated their damages by a suit 
 against Burke: Hoffman v. Bechtel, 2 P. F. Smith, 193; 
 Kramph v. Hat's, Id. 525; Brown v. Brooks, 1 Casey, 210; 
 Kvrkpatrick v. White, 5 Id. 176; Gilbert v. Henck, 6 Id. 
 205; Stark v. Fuller, 6 Wright, 320. The accident was un- 
 avoidabfe and was a defense: 2 Parsons on Cont., 184. 
 
 B. Geant, for defendants in error. 
 
 The guaranty was to answer for Burke's failure to perform 
 his contract without regard to the cause. The insolvency of 
 the principal may be shown by any legitimate evidence. 
 
 The opinion of the court was delivered October 29, 1868, by 
 Thompson, G. J. ' 
 
 "We entirely agree with" the learned judge below that the 
 guaranty of the defendant, the plaintiff in error, was not a. 
 guaranty of mere skill and fidelity on part of Burke, the con- 
 tractor, distinct from, or independent of performance, but that 
 it was for the substantial completion of the contract according 
 to its terms exmsoerihus suis. This is imported in the terms 
 used in the contract, viz., " that the said Burke shall well and 
 faithfully -perform his part of the foregoing .contract." The 
 contract distinctly provides for what was to be done. If any 
 
186 Guaranty. 
 
 thing be needed to sustain this interpretation of the words it 
 will be found in the' clause in the contract inserted for the 
 benefit of the contractor — "unavoidable accidents to be 
 allowed for in computing the time for the completion of the 
 well." If only skill and fidelity were guarantied this would 
 be an unmeaning provision, for nothing more than ihe 
 exercise of these qualities by Burke would have been i-e- 
 quired, and he could abandon the work without completing 
 it, if he had fully exercised them. If the contract had been 
 for skill and fidelity, the words used would only have ex- 
 tended to that, it is true; but it was for more; it was for the 
 complete performance of a contract that Burke bound liini- 
 self, and the guaranty was, that he should well and faithfully 
 complete it, and if unavoidable accidents should occur, time 
 should be allowed in addition to the contract time for doing 
 and completing the work. There was no error, therefore, in 
 thus construing the guaranty, 
 
 2. The next question we shall notice is that raised in the 
 defendant's 2d point. The court below decided that correctly 
 bej'ond doubt.' The plaintiffs below were not bound to liqui- 
 date their damages by reason of the failure of Burke to per- 
 form his contract by a suit against him before proceeding on 
 the guaranty of the defendant. They could do this by pro- 
 ceeding directly on the contract of guaranty as was done^ set- 
 ting forth in their narr. the failure on part of Burke to per- 
 form, according to contract, and showing due diligence on their 
 part to obtain redress from him, or such facts as would nega- 
 tive the idea of negligence in this particular. One way of 
 establishing due diligence undoubtedly is by suit against the 
 principal without remunerative results, a!nd it is often the' 
 most conclusive. But this is usually for a different purpose 
 than the liquidation of the claim. I liave examined very many 
 •precedents in our books on this point, and I find quite as 
 many cases in which suit on the contract of guaranty was the 
 first step, as when suit was brought against the principal first. 
 In Brown v. Brooks, 1 Casey, 210, it is said " when the prin- 
 cipal debtor is insolvent at the maturity of the debt, no such 
 proceeding (as judgment and execution) is necessary as a 
 foundation to an action on the guaranty. Nor is it necessary 
 ;'.n such a case to show even a demand on the principal debtor 
 
Janes v. Scott. 187 
 
 and notice of non-payment given to the guarantor. This was 
 decided in Oibhs v. Cannon, 9 S. & K. 198." We need not 
 cite further authorities to prove this doctrine. This error is 
 not sustained. 
 
 3. We also think tlie learned judge was right in instruct- 
 ing in the negative of the defendant's 4:th point, which was, 
 that the plaintiffs were only entitled to receive nominal 
 damages, if anything. Of course, if the principal failed 
 of performance the guaranty was to indemnify to the extent 
 of the loss the plaintiff had suffered. If any recovery could 
 be had at all,, there was nothing in the case so far as we can 
 discover, to reduce the same to nominal damages. The guar- 
 antor would not be excused from lial)ility, excepting from those 
 inevitable occurrences which are designated in law as the act 
 of God. The accidents pertaining to the business — mechan- 
 ical results — were the object of the guaranty. Burke under- 
 took to do the work in the face of such contingencies as did 
 happen, and agreed that he would perform notwithstanding, 
 and the defendant guarantied his doing it. Tiie principal 
 failed to perform, and abandoned the contract. The guaranty 
 was therefore broken. The loss of the plaintiffs was at the 
 very least, what they had paid him, and this the court held 
 the plaintiffs might recover. There was no error in this. 
 
 4. The last matter we shall notice is embraced in the 8th 
 assignment of error. In substance, that is a complaint against 
 the charge on the question of insolvency. Burke, the princi- 
 pal, being called as a witness by the plaintiffs, as we under- 
 stand it, testified that at the time he abandoned the work he 
 had a horse (value not stated) and $400 or $500 in money. 
 How long he remained the owner of either was not stated. 
 It was left as a question of fact to the jury on this evidence to 
 say whether or not the plaintiffs would have been able by proc- 
 ess to have recovered against him their damages; that is, such 
 damages as the jury should be of opinion the plaintiffs had sus- 
 tained if they had pursued him. Tlie test would obviously be 
 what might be recovered by process. They could not predicate 
 a verdict of what they might suppose he would do voluntarily 
 This would be too uncertain. Tliere is no legal presumption 
 on the subject which would stand for proof. His character for 
 honesty and the fact that he had always paid his^ debts would 
 
188 Guaranty. . 
 
 not be sufficient to establish solvency without evidence 'of 
 property. Tlie terra itself itnplies ability to pay, not mere 
 disposition to pay. It was, therefore, not improper for the 
 court to refer the jury to the existence of the exemption law, 
 and the fact that the money in the pockets of the principal 
 could not be seized, to enable them to determine wiiether, 
 by process against Burke, the plaintiffs could have indemni- 
 fied themselves from him for their loss. If they could not, 
 he was insolvent. The plaintiffs were not bound to do a vain 
 thing, and pursue him if he had no property which was avail- 
 able. If he was solvent, the court told the jury the action 
 could not be maintained against the guarantor; if he was not, 
 it could. The jury found for the plaintiffs, and must there- 
 fore have found him insolvent for all purposes of suit and proc- 
 6 8. We think this error is not sustained, and seeing nothing 
 in any of the other specifications of error not specially noticed, 
 we think this judgment ought to be affirmed. 
 
 Aooordingly judgment affirmed. 
 
 Shaeswood, J., dissented as to 8th assignment of error. 
 
 1. Construction of a guaranty of one fourth of the profits of a mining 
 adventure: Fletcher v. Hawkins, 2 R. I. 330; Post Partnership. 
 
 2. A wrote to B that he had agreed to sell the Moselem Iron Co. certain 
 ore, but that hefelt doubtful as to the company's solvency. " We thought 
 it best to write to you and get the information whether you would not guar- 
 anty us for what ore he will get." B replied by letter: "All right. Send 
 the ore. Moselem will pay it; he is not insolvent": ffeW, that a guaranty 
 was given: McDowell v. Lehigh Valley Iron Co., 9 Rep. 357. , (Supreme 
 Court of Pennsylvania, 1880.) 
 
 3. Guarantor bound by his principal's acts; insolvency, demand and 
 notice in guaranty contract considered: Bushnell v. Church, 2 M. R. 479; 
 Kincheloe v. Holmes, 45 Am. Dec. 47, note. 
 
Ogle's J^state. Twaddell's Appeal. 18? 
 In ee Ogle's Estate. Twaddell's Appeal. 
 
 (5 Pennsylvania State, 15. Supreme Court, 1846.) 
 
 Pair mining, securities allowed. Credit allowed for an investment by a 
 guardian in a loan of a corporation owning coal- lands and a canal, and 
 chartered to carry. on the business of mining, shipping and carrying coal 
 — the company being considered at the time to be sate and the practice- 
 of investing therein common; though ia three years and ten months 
 thereafter they were obliged to suspend payment of interest by reason 
 of inundations which destroyed their canal. 
 
 ; From the Orphans? Court of Philadelphia County. 
 
 February 25. Thie a.ppellant, as guardian of a minor, filed 
 his account in the. court below, from which it appeared that in 
 1838 he had received from the estate of the fatlierof the ap- 
 pellee about $1,000, and in 1839, from that of Charles Ogle, a 
 deceased brother, about $1,000^. He claimed a credit for a 
 purchase made December 31, 1838, of Lehigh six per cent, 
 loan of 1848, at $101.25, amounting to $3,200, and commis- 
 sions on the whole estate a,t five per cent. On reference to an 
 auditor appellant stated, under oath, that he was solicited to 
 accept the office- by the f3mily, the guardian of an elder 
 brother being in difliculties; that he consented witii reluctance,: 
 and made the investment under the belief it was tlie be^t in , 
 the m.arket; that he would have preferred it to the Stiite stock 
 or a mortgage if he had had money of his own to invest. The 
 interest was regularly paid until October 21,1841. Tliat at- 
 the time of tlie investment, the ward was advised of it, and 
 made no objection until after he attained bis majority. The 
 transfer clerk of the company stated there were on the books, 
 upward of one hundred accounts of trustees, executors and 
 guardians holding the loah; that, it was thought safe .a-nd. de- 
 sirable, as the interest was paid. punctually every quarter, and. 
 it was believed by the officers that it woiild eventually prove 
 good. At the time of this examination it was selling at $38. > 
 . It was admitted that appellant held no stock in his own 
 name, this certificate having been taken in trust for tlie ward. 
 The estate of Qharles .Ogle, from which $1/)0Q was received,- 
 
190 , Guardian and Wakd. , 
 
 who died in 1838, amounted to about $3,200. Of this, $2,000 
 was invested in this loan. It was purchased by him in 1837. 
 ■ In a letter written shortly before his death he expressed a de- 
 sire that funds to meet his wants might be obtained from his 
 late guardian, as he "would be extremely sorry to sell the 
 Lehigh loan stock." 
 
 The court below (Paesons, J.,) declining to decide whether 
 any other securities than those indicated in the act of 1832, 
 could be resorted to, considered the decision in Nyce's estate 
 (5 "Watts & Serg. 254:) ruled the case, adding: "We do not 
 think the loan of the Lehigh Navigation Company could be 
 considered that kind of security ia which a prudent guardian 
 or trustee would invest money. It was a private corporation; 
 the stock was fluctuating and, in its character, to say the least 
 of itj was uncertain and questionable. Therefore we think 
 the auditor was right in refusing to allow the guardian a 
 credit for it." 
 
 Boone, for appellant, argued that the rule of this State had 
 always been to protect the trustee when he acted in good 
 faith and to the best of- his judgment; but the court below 
 seemed to think that the act of assembly had limited the 
 species of lawful investments. 
 
 Pee Curiam. (The act does not make him liable for an 
 investment beyond those mentioned; he must prove it was a 
 safe investment.) Nyce's estate was under a will, and the 
 decision is on the words of the special trnst created; besides, 
 that was in bank stock, while this is a loan to a corporation 
 owning real property; on which its trade is founded: Lewin 
 on Trusts, 307, 308; 3 Atk. 443; 1 Penna. Eep. 211. Here, 
 too, it is shown that part of the funds had been previously in- 
 vested by the donor in the same way. 
 
 W. A. PoETEE, contra. The legislature has established a 
 rule: if it is departed from it will require a decision in every 
 case. The rule of the English chancery is settled, and re- 
 quires no authorities. The reason stated as early as 3 Atk. 
 444, is exactly applicable. Nothing is trusted which may be 
 wasted by the lawful acts of those on whom the value of the 
 stock depends. All trading bodies, however secure, are ex- 
 
Ogle's Estate. Twaddell's Appj<:al. ,191 
 
 eluded, because in the course of lawful traffic their estate may 
 be lost. Precisely so here; a corporation trading in coal and 
 transportation, the only object of its existence. Nyce's estate 
 is much stronger, for there was the consent of the guardian; 
 the corporation owned r^al estate, and was considered by the 
 most sagacious, perfectly secure. 
 
 The rule is settled, if the court would not relieve at the time 
 the act was done it will not interfere subsequently: Howe v. 
 Dartmouth, 7 Yes. 137; where it is also said executors are 
 expected to do what the court would order them to do: 10 
 Johns. 435; 2 Wend. 77; Willis on Trusts, 306, 309. There 
 is not one of the almost numberless manufactories incorpo- 
 rated to the eastward which would not be held a. good invest- 
 ment under the rule here contended for, 
 
 March 22d. Gibson, 0. J. 
 
 The legislature evidently intended not to restrict the in- 
 vestments of guardians, executors or trustees, to the securities 
 designated in the act of 1832, or to require them in all cases 
 without exception to.be made under the direction of the court, 
 but to point out a course free from risk, not to interdict every 
 other one. It would be inconvenient and burdensome to sad- 
 dle every petty re-investment of interest with tlie costs of ^ a 
 petition and the expense of a visit to the seat of justice or vir- 
 tually to prohibit an investment in vacation. If the statute 
 had been enacted for the benefit of the owner of the money it 
 would have disappointed the framers of it; but it was made 
 for the protection of the trustee, and not to entrap him. It is 
 not intended here to say, whether money may or may not in 
 any case be safely invested on merely personal security. The 
 question is a grave one, for on the decision of it may depend 
 the very existence of pecuniary trusts. The English rule may 
 answer in particular parts of the State, but it is extremely 
 doubtful whether any unbending rule will answer in every 
 part of it. The investment here was not on personal security 
 but in the loans of a great and ilourishing corporation, the 
 value of whose landed capital, to say notiiing of its works, 
 vastly exceeds the amount of its debts. The income from its 
 coal mines and its canal is appropriated to payment of inter- 
 
192 GUAEDIATT AND WaED. 
 
 est on it3 loans in the first instaace; and the investmetit was 
 consequently made, in substance, though not in form, on real 
 Security. Tlie investmentin Nyce's appeal, which was thought 
 below to rule the case, was made in the stock of a bnnk; and 
 the history of banking for thirty years shows that it was es- 
 sentially a hazardous one. Had the money, in the case before 
 us, been invested in the stock of a company which can not 
 receive a dividend till the interest on its loans has been paid^' 
 or had its dividends then been suspended, the case might prob- 
 ably have presented a different aspect. That it has since 
 been compelled to suspend its payments' has been occasioned' 
 by a dispensation of Providence which it was impossible to 
 foresee or control. These are matters of history of which we 
 are bound to take notice. The returning prospe^rity of the 
 company makes the decision of the question a matter of small 
 importance to the parties to it; .but it is of immense impor- 
 tance to parties beneficially interested in trusts, that the trust- 
 ees be held responsible only for supine negligence. It is or- 
 dered, therefore, that credit be allowed in the account, for casla 
 and commission paid for the certificate of Lehigh loan; and' 
 that the account be reformed accordingly. 
 
 So decreed. ■ 
 
 1, Adventuring the infant's estate in mining makes hia trustee liable to' 
 account for the profits: Wilkinson v. Stafford, 1 V^es. Jr., 32; Post Tuust. 
 , 2. Infant held to a prospecting contract: Breed v. Judd, 1 Gray, 455; 
 
 Post PSOBPECTINO CONTRACT. \ 
 
 3.' Mining stock, under assessment, belonging to infant, is a kind of prop- 
 erty which ought to be disposed of by sale:' Estate of Millenovich, 5 Nev. 
 184. 
 
Trustees of Hawesville v. Hawes Heiks. 193 
 Trustees of Hawesville v. Hawes Heirs. 
 
 (6 Bush, 232. Court of Appeals of Kentucky, 1869.) 
 
 If fee Tested in the anthorities, they hold the minerals. Where the 
 fee simple in the town streets, and not a mere easement for pui-poses of 
 the public, is vested in ihe trustees of a town, they are the owners of 
 the coal unilerneath such streets. 
 
 Party leasing: lands of stranger liable for the rents. Where coal is 
 mined by lessees of persons claiminsr to be owners of the same, the 
 real owners may waive the tort and sue the lessors for the rental received 
 by them, as money had and received. 
 
 ' Legislature may vest the fee of streets. It is competent for the Legis- 
 lature, with the assent or procurement of the owner of the soil, to vest 
 the absolute title to the ground covered by the streets in the trustees of 
 the town, and the act incorporating the town of Hawesville had this 
 effect. 
 
 W. P. D. Btjsh, for appellants. 
 
 G. W. Williams, for appellees. 
 
 Judge Haedin, delivered the opinion of the conrt. 
 
 Eichard Hawes, being the owner of the land on which the 
 town of Hawesville, in Hancock county, is now situated, on 
 the 5th day of November, 1827, executed the following 
 writing: 
 
 " This certifies that in case a new county is established I 
 will make a donation of seventy-five acres of land, as far as 
 my right extends, beginning at the mouth of Lead creek, thence 
 up as far as Mr. McQuady cultivates, and back square from 
 the river. I to give one or two acres for public buildings, 
 the streets, and half the lota, retaining the other half, and the 
 ferry when established. This donation is for the express pnr^ 
 pose of a county seat, and to be for that purpose only. Given 
 under my hand this 5th day of November, 1827. 
 
 " Eichard Hawes." 
 
 The county of Hancock having been established, and the 
 county seat located as was contemplated, the town of Hawes- 
 ville was incorporated by an act of the legislature, approved 
 
 ' rUij of Dem-er v. Clements, 3 Colo. 472. 
 VOL, VII.— 13 
 
194 Highways. 
 
 February 20, 1836, the "County Court of Hancock and the 
 lieirs of said Hawes having petitioned the legislature to estab- 
 lish the town by law;" and the land embraced by a plan of 
 tlie town was declared by the act to be vested in the trustees 
 of the town for the following uses and purposes: 
 
 " The public square, the streets and alleys in said town, 
 to be held for the use of the public and the citizens of said 
 town, and the lots to be conveyed by them, or a majoritj' of 
 them, for the time being, to the purchasers at the sale of the 
 lots, or their assignees, upon the production of the certificates 
 of purchase respectively, or to any one, upon the order of the 
 Hancock County Court, for any lot designated upon the plan 
 of the town as a donation lot, or upon the order of one or 
 more of the heirs of said Hawes for any of those lots not des- 
 ignated as donation lots; and when said trustees, for the time 
 being, or a majority of them, shall convey any lot in said 
 town, the presumption shall be that they conveyed in pursu- 
 ance of an order for making the deed by proper authority," 
 etc. 
 
 It appears that in a division of the estate of Kichard Hawes 
 there were allotted and conveyed to the children of his 
 deceased son, Aylette Hawes, "all the stone-coal and mines 
 of stone-coal which exist or may be found in and under the 
 lands formerly owned by said Richard Hawes, and of whicli 
 he was the owner at his death, and which was devised by his 
 last will in remainder to his devisees, situated in the county 
 of Hancock, together with all and singular the rights of way 
 in, through or over any of the said lands so owned and devised' 
 by said Kichard Hawes, which may be necessary to tlie rea- 
 sonable conveyance and necessary enjoyment of the said 
 stone-coal and coal-mines." 
 
 Underlying the ground on whicli some of the streets of the 
 town were located were beds of coal, which the grantors in 
 said conveyance claimed as part of the property thereby con- 
 veyed to them; and their lessees having removed large quan- 
 tities of this coal by mining under the surface of the streets, 
 its value became the subject of this litigation between the 
 appellants, who claimed it as the trustees of the town, and 
 said children of Aylette Hawes. 
 
 In the judgment from which this appeal is prose *,nted, tlie 
 
Trustees of Ha.wesville v. Hawes Heirs. 195 
 
 court decided that the title to the coal underlying the streets 
 and alleys of the town "did not vest in said trustees, either 
 by donation made by Richard Hawes for the site of Hawes- 
 ville, or by the act of the legislature establishing said town; 
 but, on the contrary, that the right and title thereto remained 
 in Richard Hawes until his death, and passed, by the deed 
 and -conveyance made in pursuance thereof, to the heirs of 
 Aylette Hawes, deceased." 
 
 The trustees of Hawesville seek a reversal of that judgment 
 on this appeal. 
 
 It is obvious that if the title to the streets and alleys was 
 vested in the trustees, and not merely an easement over them 
 for the use of the public, they owned the coal which was re- 
 moved from beneath the surface of the streets, and might 
 waive the tort committed by removing it without their con- 
 sent, and sue for its proceeds as money received for t)ieir use. 
 
 If it be conceded that the conditional and prospective do- 
 nation of Richard Hawes imported no more than a dedication 
 of the ground necessary for public use as streets and alleys, 
 and did not, per se, operate to divest him or his representatives 
 of the legal title, we are nevertheless of the opinion that it 
 was competent for the legislature, with the assent or procure- 
 ment of Hawes' heirs, to vest the absolute title in the trustees 
 of the town; and the act of incorporation had that effect: 
 MoMillen v. Brown, 1 Mar. 153; Coleman v. Morrison, 
 Ibid. 406. 
 
 This conclusion is not in conflict with the general principle 
 which this court has repeatedly affirmed, that the right of way 
 for a public thoroughfare does not include the title to the 
 ground over which it passes; the authorities cited for the ap- 
 pellees as illustrating that doctrine not being applicable to 
 this case, but to a difl'erent class of cases, in which the title 
 of the original owner in the soil and freehold has not been 
 actually or constructively conveyed, and may be retained, and 
 for some purposes enjoyed, consistently with an easement in 
 the public, 
 
 "Wherefore the judgment is reversed, and the cause remand- 
 ed for further proceedings not inconsistent with this opinion. 
 
196 Highways. 
 
 Robertson et al. v.. Smith et al. 
 
 (1 Montana, 410. Supreme Court, 1871.) 
 
 Eigrht of way oyer mining claims— Act of Congress construed. The 
 
 defendants, as county commissioners and road supervisors, undertook 
 to lay out a highway across the mining claims of the plaintiffs under 
 the act of Congress of July 26, 1866, which provides: "That the right 
 of way for the construction of highways over public lands not reserved 
 for public uses, is hereby granted." The same act grants the right to 
 explore and occupy the public mineral lands subject to local rules, etc- : 
 Held, that the plaintiffs being in possession are presumed to hold ih ac- 
 cordance with such local rules; that their rights having become vested by 
 • virtue of the gi-aut con ained in said act of Congress, their mining claims 
 are no longer to the full extent public lands; and that neither the de- 
 fendants, the TeiTitory nor the general govemaaent could devote this 
 ground to the use of a highway, without giving the plaintiffs a just 
 compensation for all the damage done their rights. 
 
 ' Prior in time, prior in right applied to highways. One who locates 
 a mining claim on the public domain does not do so subject to the right 
 of the public to construct a highway over the same. The proper con- 
 struction is that miners have a right to occupy the public mineral lands, 
 and the public have a right to an easement for a highway over the pub- 
 lic domain, and whichever is prior in time is prior in right. 
 
 Liberal construction of the statutory grant. The grants to miners 
 under the act of Congress are to be liberally construed in favor of the 
 grantee. 
 
 The right to explore the mineral lands implies the right to extract the 
 minerals when found. 
 
 The fee in possessory claims remains in the United States, but the rights 
 of miners have been carved out of it. 
 
 The reserving clauses in the act as to "regulations " to be prescribed, 
 and "local customs " explained and restricted. 
 
 - Taking property without compensation enjoined. Private property can 
 not be taken for public use for the construction of a highway, in a Terri- 
 tory in which there are no statutes providing for the payment of a just 
 compensation for the property taken, and an attempt so to do will be 
 restrained by injunction. 
 
 Appeal from the District Court of Meaglier County, Third 
 Judicial District, 
 
 The plaintiffs, Robertson et al., recovered a judgment in 
 July, 1871, before Wade, J., and defendants appealed. 
 
 G. G. Symes and S. Ore, for appellants. 
 
 » Coryell v. Cain, 5 M. R. 227. » THcomh v. Kirlc, 5 M. R. 10. 
 
Robertson v. Smith. 197 
 
 Chumaseeo & Chadwick, for respondents. 
 Knowles, J. 
 
 This cause comes to this court on appeal from an order 
 granting an injunction restraining the defendants from laj'ing 
 out and maintaining a highway over certain mining claims 
 belonoing to the plaintiffs. It appears from the record that 
 plaintiffs and their grantors have claimed and possessed a 
 mining interest in these claims since A. D. 1865. That thfy 
 are in possession of them now, and that they have expended 
 quite a sum of money in opening and in preparing to work 
 tiie same. That defendants, Ford, Keene and Sterling, are 
 the county commissioners of Meagher county, and as such 
 had laid out a road up Cement galch, being that upon which 
 plaintiffs' mining claims are situated, and over these claims. 
 That the defendant Sm.ith was a road supervisor, and as such 
 was proceeding under the directions of the above named com- 
 missioners to open said road. That there was granted by the 
 legislative assembly of this Territory, subsequent to the loca- 
 tion of plaintiffs' mining claims, a charter to certain persons 
 to lay out and maintain a toll road up said Cement gulch, 
 and that in pursuance of said charter these persons did open 
 and maintain such road. That a subsequent legislative 
 assembly repealed the act granting this charter, and by an act 
 declared this road a public highwaj'. 
 
 The defendants claim that by virtue of the provisions of an 
 act of Congress, passed July 26, 1866, entitled, "An act pro- 
 viding for the right of way to ditch and canal owners, over 
 public lands, and for other purposes" (see 14 U. S. Stat, at 
 Large, 253), they were vested with the right to lay out and 
 maintain this road. The section of said act which they claim 
 grants them this right reads as follows: 
 
 Sec. 8. " That the right of way for the construction of 
 highways over public lands, not reserved for public uses, is 
 hereby granted." 
 
 The first question then presented for our consideration is, 
 were the lands upon whicli these mining claims are situated 
 fully public lands? 
 
 The same act which grants this right to construct highways 
 over public lands, grants to citizens of the United States, and 
 
198 Highways. 
 
 those who have declared their intentions to become such, the 
 right to explore and occupy the mineral lands of the public 
 domain, subject to such regulations as may be prescribed by 
 law, and subject also to the local customs and rules of miners 
 in the several raining districts, so far as the same may not be 
 in conflict with the laws of the United Statefi: 14 U. S. Stat, 
 at Large, § 1, p. 253. 
 
 We hold that this section of chat act grants to the proper 
 person an easement upon such of the mineral lands belong- 
 ing to the public domain of the United States as he may 
 appropriate, in accordance with the local rules and customs 
 of miners in the mining district in which the same may be 
 situated, there being at present no regulations prescribed 
 by law to vary or limit these. There is no point presented 
 in this case that would imply that plaintiffs did not hold 
 their mining claims, in accordance with the rules and cus- 
 toms of the miners in the district in which the same are sit- 
 uated. They being in possession of them, it will be presumed 
 that they hold them in accordance with such rules and cus- 
 toms, upon the same pi-inciple that the pos.sessor of any real 
 estate is presumed to be the owner thereof, until the contrary 
 is shown. 
 
 This easement is one of a very extensive character, for it 
 gives the owner thereof the right to occupy and explore such 
 land. Being a right received by legislative grant, it should 
 receive no narrow construction. 
 
 The rule may be stated as a general one, in respecfi to legis- 
 lative grants in this country, that they should be construed 
 liberally in favor of the grantee, and in such a manner as to 
 give them a full and liberal operation, so as to carry out the 
 legislative intent, where that can be ascertained. See 2 
 Washb. on Eeal Prop. 539. Considering the history of min- 
 ing for the precious metals in the mineral lands of the United 
 States, and the history of the passage of the act under con- 
 sideration, it can not be doubted that Congress intended by it 
 to legalize the mining upon the public domain for precious 
 metals, which up to the passage of the same had been carried 
 on in such a manner as to make those engaged therein tres- 
 passers as against the general government. We may assert, 
 then, that the grant to occupy a;nd explore the public mineral 
 
KOBEKTSON V. SmITH. 199 
 
 lands belonging to the public domain, carried with it, by 
 implication, the right to take what was found by such explo- 
 ration, namely, the precious metals; for, without this riglit, 
 the grant would be of no utility to those it was intended to 
 benelit. The only object any miner would have in occupying 
 and exploring any mineral land, would be the extraction 
 therefrom of metals therein contained. Without this right, 
 the miner who does so would still be a trespasser against the 
 general government. I am aware that in the case of Charles 
 Biver Bridge v. Warren Bridge, 11 Pet. 420, in relation to 
 franchises, the Supreme Court of the United States held, that 
 a legislative grant should be strictly construed, and that 
 nothing could be derived by implication from such a grant. 
 Yet, in relation to legislative grants of this character, I believe 
 that court would be more liberal. Certainly public policy 
 would not dictate so narrow a construction. Yale, in his 
 treatise on mining claims and water rights, maintains that this 
 grant gives as extensive rights to tlie miner, in regard to 
 extracting the precious metals from a mining claim, as those 
 ■specified above. See Yale on Mining Claims and Water 
 Eights, 355, 356. 
 
 This right to occupy, explore and extract from mineral lands 
 the precious metals, is of a higher character than if created by 
 what is termed a parol license, for it is given by an act of 
 Congress; and hence, equivalent to a patent from the United 
 States to the same. 
 
 " For the transfer, by the United States or by a State, of 
 the title of land, no particular form is required. It may be 
 done by special act of legislation, hy a clause inserted in a 
 treaty by the treaty-making power, or by patent issued by one 
 authorized to represent the sovereignty:" 2 Washb. on Real 
 Prop. 240. 
 
 Again: ' 'A grant may be made by law as well as by patent 
 issued pursuant to law:" 2 Washb. on Real Prop. 240. 
 
 Of course, this right to occupy, explore and extract the 
 precious metals from the mineral lands belonging to the pub- 
 lic domain is not unlimited. It is restricted by the local rules 
 and customs of the miners of the district in which such land 
 is situated. These rules and customs refer to the location, 
 user and forfeiture of mining claims. When a miner locates 
 
200 Highways. 
 
 a particular portion of mining land, in accordance with these 
 rales and customs, then tlie grant from the general govern- 
 ment to occupy, explore and take therefrom the precious met- 
 als, accrues to such miner over tiie ground located. The ef- 
 fect of this statute, then, is to grant these rights over the 
 ground located, in accordance with sucii rules, to as full an 
 extent as if the land had been designated in the law. 
 
 While the general government then holds the fee in the 
 land upon which these mining claims are situated, it has 
 parted with an incorporeal hereditament in the same, that is, 
 the right to occupy, explore and extn c: the precious metals 
 therefrom; and these rights have become vested in the plaint-, 
 iffs, by virtue of a grant from the general government; hence, 
 these mining claims are no longer to the full extent public 
 lands. The title in fee is but these rights, which were inci- 
 dent to the fee, have been carved out of it, and are no longer 
 government property but that of the plaintifl's, and it- is prop- 
 erty which the law will protect. The use to which the de- 
 fendants would devote this property would destroy plaintiffs' 
 rights. The section of the act under which defendants claim 
 their rights are granted does not devote any particular por- 
 tion of the public domain to a highway. It gives a general 
 right to the public of a right of way for that purpose over 
 public lands, and should be construed only to offer to devote 
 to that use any lands belonging to the general government, 
 not reserved for public uses, that the public might, through 
 its proper officers, select. Until the public then accepts the 
 offer made, and seeks to devote some particular portion of the 
 public domain for a highway, no rights accrue to the public 
 over such lands. See The City and County of San Fran- 
 ciaoo V. David Calderwood et al., 31 Cal. 585. No rights 
 could have accrued to the public in the land, upon any por- 
 tion of Cement gulcli^ until either the legislature declared the 
 toll road up the same a highway, or until the said county 
 commissioners sought to locate one there. We have seen, 
 however, that before either of these events transpired, the 
 rights of the plaintiffs had become vested. No greater rights 
 could accrue to the public in these lands than the government 
 had, at the time the public accepted the offer made in one of 
 the ways above specified. The government, as we have seen, 
 
EOBERTSON V. SmITH. 201 
 
 had parted with an easement to plaintiffs. Neither the de- 
 fendants as county officers, nor the Territory, nor even the 
 general government, conld devote this ground to the use of a 
 highway, without giving the plaintiffs a jnst compensation 
 for all the damage done their rights. 
 
 The defendants insist that any miner who locates a mining 
 claim does so subject to right of the public, under the section 
 of the law referred to above, to construct a highway over the 
 same. There is no reservation of this kind in the grant to 
 the miner. The clause "subject to such regulations as may 
 be prescribed by law," reserves only the right to regulate the 
 manner and conditions under which miners must work their 
 claims bj- legal enactments. The clause, " subject to the local 
 customs or rules of miners in the several mining districts," 
 refers evidently to the rules, customs and regulations of min- 
 ers in relation to the location, user and forfeiture of mining 
 claims. By no rule of legal construction that I am aware of 
 can these clauses be made to refer to a reservation of a right 
 to the public to construct a highway over located mining 
 claims. The proper construction of the law upon these sub- 
 jects is, I think, that miners have the right to occupy and ex- 
 plore unappropriated public mineral lands; that the public 
 have a right to an easement for a liighway over the unoccupied 
 public domain, and that whichever is prior in time is prior in 
 right. It is as inconsistent for the public to claim a right of 
 way over an appropriated mining claim without giving the 
 owner thereof a just compensation for his rights, as it wonld. 
 be for a miner to claim the right; to appropriate for mining 
 purporses a portion of the public domain which had been de- 
 voted to the use of a public highway. The statute does not, 
 by express terms, or by implication, . make either of these 
 rights superior to each other. There was no attempt on the 
 part of the defendants to have the rights of plaintiffs seques- 
 tered for the benefit of the public upon giving to them a just 
 compensation therefor. As far as we have been able to ascer- 
 tain there is no provision in the statutes in this Territory 
 which provides for the paying of a just compensation for pri- 
 vate property which is sought to be devoted to a public use 
 for a highway. Until there is some provision for this I do not 
 see bow private property can be devoted to the use of the pub- 
 
202 Highways. 
 
 lie for such a purpose, notwithstanding the necessity for such 
 an appropriation may be very great. It would seem that it 
 was a condition precedent that a just compensation sliofild be 
 given for private property before it can be taken for a public 
 use. 
 
 It does not fully appear that the defendants claim that tlie 
 pubic was subrogated to the rights of those persons who had 
 constructed the toll road over these claims. However, if they 
 do, the public could receive no greater rights than these 
 parties had. It does not appear that they had any rights but 
 the permission to construct their road over these claims and 
 use it during the pleasure of the plaintiffs. The charter 
 given to those persons could, have given them no right to con- 
 struct their road over these claims so as to damage the rights 
 of plaintiffs, for a provision in a charter granting such a right 
 would be the transferring of the property of one set of per- 
 sons to another, and would be void as contravening the con- 
 stitutional provision that no one can be deprived of his prop- 
 erty without due process of law. 
 
 For these reasons the order of the court below is affirmed. 
 
 Judgment affirmed. 
 
 1. Minerals tinder toll roads belong to the adjoining land owner: Kelly 
 V. Donahoe, 2 Mete. (Ky.)482; Smith v. City of Rome, 7 M. R. ?.06. 
 
 2. Minerals under streets, in Iowa, no to the town in fee: Des Moines v. 
 Hall, 24 Iowa, 235. Otherwise where the land has been specially dedicated 
 "for street purposes only:" Dubuque v. Benson, 23 Iowa, 248. 
 
 3. Toll company may take stone from its road bed for repairs: Stokely v. 
 Eobbstoicn Br. Co., .5 Watts. 546; but see Kelly v. Donahoe, supra. 
 
 4. A city may take stone from the bed of one street to use in repairing 
 another: Huston v. Fort Atkinson, 56 Wis. 350; Neu) Haven v. Sargent, 38 ~ 
 Conn. 50; 9 Am. Rep. 360. Contra. Delphi v. Evans, 36 Ind. 90; 10 Am. 
 Rep. 12. See Bissel v. Collins, 28 Mich. 277; 15 Am. Rep. 217, note 219. 
 
 5. City liable for injury to private way by reason of its highway com- 
 missioner taking gravel therefrom: Spraguey. Tripp, 8 Am. Rep. 11; 13 B. 
 1.38. 
 
 6. Canal commissioners authorized to take stone from private lands, can 
 not delegate such authority: Lyon v. Jerome, 26 Wend. 485; 37 Am. Dec. 271. 
 
Funk v. Haldeman. 203 
 
 Funk v. Haldeman et ai. 
 
 (53 Pennaylvania State, 229. Supreme Court, 1866.) 
 
 ' Construction of complicated oil land contract— License made exclusiTe 
 and irrevocable by the contract of the parties. McElheny, being 
 the owner of a farm composed of land in Cherry Tree and Complanter 
 townships, in consideration of $200, granted to Funk, his heirs and 
 assigns, the free and uninterrupted privilege to go upon a tract of said 
 land in Complanter township for prospecting, boring, etc., and taking 
 any oil, salt, coal, etc., out of the earth; Funk to have the exclusive u.se 
 of one acre of land around each pit or well, with free ingress on said 
 land in common with McElheny; Funk, diligently to search for oil, 
 etc., and give McElheny one third of all taken out, McElheny reserving 
 the right of tillage. McElheny a,fterward conveyed to Haldeman all 
 his farm subject to the agreement with Funk. Haldeman afterward 
 agreed with Funk that his rights should include all lands in Complanter 
 township (reserving a strip of ground), giving to Funk the right to 
 transfer in whole or in part to others, and afterward granted to Funk 
 the same rights in the Cherry Tree tract which he had in the Corn- 
 planter. 
 
 Held, 1. The conveyances gave Funk an incorporeal hereditament in fee, 
 which would have been indivisible at law, but was made divisible by 
 the grants, and this interest which would also at law have been held 
 in common with his grantors was made exclusive in Funk by the terms 
 of the grants. 
 
 2. The grantors have no mining privileges, and can have none until Funk 
 shall forfeit his rights by breach of covenant. 
 
 3. The grants to Funk did not amount to a lease, nor a sale of the land or 
 the mineral; no estate in the soil or minerals was gran ed. The right 
 granted to Funk was to prospect for oil, extract and take it, rendering 
 one third to the landlord. 
 
 4. Funk's right was a license to work the laud for minerals,'coQpIed^with 
 au interest revocable only for breach of covenant. 
 
 5. The $200 paid was the consideration for the right of entry or privilege 
 to bore for oil; the royalty was the consideration for the oil when 
 found. 
 
 Forfeiture not enforced in equity. If a grantee has violated his tenure 
 or his covenants, e. g., if he has undertaken to divide into severalty 
 that which he could only hold as an entirety, he has lost all; but 
 even then, a chancellor would send the grantors to law to enforce the 
 forfeiture. But there being no violation, either of tenure or covenants, 
 there is, therefore, no forfeiture to enforce either at law or in equity. 
 
 ' Sijnd V. Eynd Farm Oil Co., 5 M. R. 275. 
 
204 Incobpokeal Hekeditaments. 
 
 Tliis was an appeal by A. JB. Funk, the complainant below, 
 from the decree of the Court of Common Pleas of Venango 
 County, in equity. 
 
 In that court Funk filed his bill against Levi Halderaan et 
 al., praying for an injunction to restrain the defendants from 
 interfering with complainant's working of certain valuable oil 
 tracts, leased, as complainant alleged, to him. The defend- 
 ants alleged a forfeiture by subletting. 
 
 Hon. James Campbell, P. J., granted the 8])ecial injunc- 
 tion. The defendants filed a cross-bill, alleging that com- 
 plainant had forfeited his right by subletting, and, after an- 
 swers filed to the original bill and cross-bill, and testimony 
 taken, the case was heard before Hon. Isaac G. Goedon, P. J., 
 who delivered an opinion dismissing the original bill, and 
 declaring a forfeiture as averred in the cross-bill. 
 
 From this decree Funk appealed. The question involved 
 was the proper construction to be given to the papers under 
 which Funk claimed the right to dig for oil upon the lands. 
 He contended that he was lessee with right to assign. 
 
 The landlords contended that Funk held under a mere 
 license: that his letting other parties in was a surcharge, and 
 worked a forfeiture. 
 
 It was stated that upward of $9,000,000 depended upon 
 the decision. 
 
 The title was thus described in the pleadings: 
 
 The bill set forth that October 8, 1859, David McElheny 
 was the owner of a farm, originally consisting of two pieces; 
 one situated in Cornplanter township, the other in Cherry 
 Tree township, Yenango county; the said pieces together 
 constituting the farm of said McElheny, on each side of Oil 
 creek; and on that day McElheny and wife made with Funk 
 an agreement bargaining and selling, in consideration "of 
 $200, to Funk, his heirs and assigns, the free and uninter- 
 rupted use, privileges, etc., to go on any part of the 200 acres 
 for the purpose of prospecting, digging, etc, to find any ore, 
 oil, salt, coal, or other minerals, and of taking the same out 
 of the earth," and the exclusive use of one acre of land at 
 each well, with free ingress, etc., over said land by Funk, his 
 
Ftjnk v. Haldeman. 205 
 
 hands, teams, tenants, and under-tenants, occupiers or possess- 
 ors of said wells, etc. 
 
 Funk bound himself to commence operations the next 
 spring; to put a steam-engine in operation; to use energetic- 
 ally all reasonable efforts to obtain the oils, etc.; to give one 
 third of all that should be taken out to McElheny; that if the 
 experimenting* failed the " premises should revert back " to 
 McElheny, and McElheny to have the privilege of tilling the 
 land, subject to the rights of Funk. 
 
 The bill further alleged the payment of the $200 by Funk, 
 ja conveyance of the land by McElheny to Hussey, McBride 
 & Ilaldeman in fee, subject to the above agreement, and an 
 agreement between them and Funk, March 26, 1860, confirm- 
 ing the former agreement, with power to subdivide and sublet 
 the land in whole or in part. 
 
 The. bill also averred that Hussey, McBride & Ilaldeman, 
 March 29, 1860, granted to Funk the oil and mineral right 
 to said land. 
 
 The bill averred a performance by Funk of all his covenants ; 
 that Hussey, McBride & Haldeman pretended to doubt his 
 right to subdivide and sublet the land, and that for the pur- 
 pose of removing said pretended doubts Funk surrendered a 
 strip of land to them, and they expressly gave him the right 
 to assign and transfer the privileges granted to liim, and to 
 subdivide said lands, etc. 
 
 The complainant charged, therefore, that he had the exclu- 
 swe right to dig for oil, etc., and the right to sublet, but that 
 the defendants pretended that they had the right, in common 
 with the plaintiff, to work any portion of the land not actu- 
 ally operated upon by plaintiff, and that in pursuance of said 
 pretended right the defendants had entered on the premises, 
 and commenced digging for oil, building houses, etc. 
 
 The bill concluded with the usual prayer for an injunction 
 to restrain defendants from operating for oil, and from using 
 any portion of the premises except for agricultural purposes, 
 etc. To this bill the defendants filed answers and cross-bill, in 
 which they alleged that the right to subdivide and underlet 
 was given by them in the agreement of March 26, 1860, gra- 
 tuitously and wit')out advice from counsel, and they denied 
 that large expenditures had been made by Funk before the 
 
206 Incokporeal Hekeditaments, 
 
 conveyance to liim. They admitted that they had entered on' 
 the land to search for oil, that tliey had laid out lots, and had 
 given parol licenses to bnild, bnt they denied that plaintiff's 
 agreements gave him the exclusive right to dig, mine, etc. 
 and averred that said instrnments were mere licenses to search 
 in common with defendants. They further denied the 
 plaintiff's right to subdivide or underlet, and insisted that he 
 had surcharged the tenancy of certain lots, and forfeited all 
 right to the same. 
 
 An answer was filed by Funk to the cross-bill, and a large 
 amount of testimony was taken. 
 
 The various agreements are recited at length in the opinion 
 of the court. After the preliminary injunction had been 
 granted. Funk sold his interest in the lands to the McElheny 
 Oil Company, who were substituted as plaintiffs. 
 
 Upon final hearing, as already stated, the court digmissed 
 the original bill, decreed a forfeiture as to two lots, and the 
 complainants appealed. 
 
 The complainants were represented by Messrs. R. Biddle 
 KoBERTS, Thomas M. Marshall, Eli K. Price and Hon. 
 Walter H. Lowbie. 
 
 F. Carroll Brewster, representing one of the snb-tenants, 
 was allowed by the court to take part in the argument. 
 
 The appellees were represented by Messrs. C. Heydrick, 
 F. T. Backus and George R. Snowden. 
 
 The case was argued at Pittsburgh, November 9, ]866. 
 
 Thomas M. Marshall, F. Carroll Brewster and Hon. 
 Walter H. Lowbie, for appellants, argued that the cases 
 relied upon by the court below did not justify the decree 
 entered. They referred to those cases, viz.: Lord Mountjcnfa 
 Case, 4 Leon. 147; Moore, 174; Godbolt, 171; And. 307; Co. 
 L. 1645; Cheetham Y.Williamson, 4 East, 469; Doe v. Wood, 
 2 B. & Aid. 724; Grubh v. Bayard, 2 Wal. C, C. E. 81 ; Oruhh 
 V. Guilford, 4 Watts, 223; Johnstown Iron Co. v. CamJbria 
 Iron Co., 8 Casey, 241; and showed that they differed from 
 this, for in those cases, 
 
 Ist. No present consideration had been paid. 
 
 2d. There was no word excluding the grantor. 
 
 3d. There was no covenant binding the grantees to take ore. 
 
Funk v. Haldeman. 207 
 
 4tli. Tliere was no reservation of a right of tillage, as here. 
 Expressio unius excliisio alterius. 
 
 5th. Tliere was no clause in any one of those cases under 
 which the lands, as here, were to " revert back." 
 
 They further argned that this case was not to be ruled by 
 Clement v. Walter, i Wright, 341, for there the grantee had 
 only paid a nominal consideration of $1. He had never put 
 up the works, and "what he was bound to take, and when, 
 was uncertain." And that Huf v. McCauley, 53 Pa. St. 206, 
 decided by this court since this appeal, did not rule this case, 
 for in that case there was merely a verbal agreement by Mc- 
 Cauley that Haff should take as much coal from McCauley's 
 land as he wanted for his salt works. 
 
 They relied upon the recital of Funk's lease in the deed 
 under which appellees acquired their title. They argued that 
 Funk's rights were not thosq of a mere licensee, for, 1st. In a 
 license there is no exclusive holding; here there is exclusion. 
 2d., A- licensee is not bound to proceed; here. Funk was 
 bound to use diligence. 
 
 But even if the court should construe this as a license, it 
 could not be forfeited for doing that which the appellees had 
 expressly permitted. That Funk's interest was expressly made 
 divisible and exclusive in him and his assigns. If exclusive, 
 there could be no surcharge, and no forfeiture for subdivision. 
 
 There is nothing strange or unusual in such a claim. 
 Claims perfectly analogous to it abound in life and in jurid- 
 ical administration. Such are rights of coal, stone, gravel, 
 salt, water, ways, pasture, fore-crop or prima tonsura, after- 
 crop, fishery, oystery, ferry, water-power, flowage by drains, 
 growing timber, growing crops, warren, turbary — many of 
 them are very common in our State. The right to the land 
 may be in one and these other rights in any number of others. 
 No special forms are necessary in assuring such rights. In 
 some cases they are real and in others they are incorporeal. 
 Trespass and ejectment will' lie where the right is exclusive. 
 Judicial sagacity never allows the rules of legal art to set 
 aside the common sense of the people. 
 
 Here two thirds of the oil belong to Funk, and one third to 
 the owners of the land. Oil, like water, is essentially indi- 
 visible, and taking it in one place draws it off from all others; 
 
208 Incoeporeax Heeeditaments. 
 
 and as the owner can not take oil from our wells, he can not 
 steal tlie fluid rights by tapping at a distance. 
 
 They cited Wilson v. MaKretk, 3 Burr. 1825; Caldv^ell v. 
 Fulton, 7 Casey, 476; RarUm v. The Lehigh Coal and Nav- 
 igation Go. 11 Ibid. 287; 2 Washburn on Real Property, 89; 
 AVoolrych, 116, 117; 5 Burr. 2816; 2 W. Bl. 1151; 8 Q. B. 
 1000; Cro. Jac. 150; 7 East, 200; 2 Wend. 524, 517; 17 Pick. 
 23; 9 Cow. 279; 17 Mass. 298; 8 Burr. 383; Angell, 108; 
 B>jitz V. Ihrie, 1 Eawle, 218; 6 Cow. 677; 13 Pick. 323; 4 
 Ibid. 54; Tyler y. Williamson, 4 Mason, 403; Bi/rd v. Smith, 
 8 Watts, 440; 14 S. & E. 267; 2 Story's Eq., Sec. 927; 
 Brightly's Eq., Sees, 215, 296, 299, 300. 
 
 F. T. Backus and C. Heydeick, for appellees, argued that 
 the admiration of the appellants' counsel for the opinion de- 
 liverd by Judge Campbell, had led them into error. The in- 
 denture of March 29, 1860, had been confounded with the in- 
 denture of March 26, 1860. The indenture of March 26, 
 1860, related to a tract in Cornplanter township. The inden- 
 ture of March 29, 1860, related to a tract in Cherry Tree 
 township. 
 
 Two questions arise out of the several agreements: 
 
 1. Were the privileges granted to Funk exclusive of his 
 grantors, or to be enjoyed in common with them, and 
 
 2. If not exclusive, were they divisible as to the Cherry 
 Tree township tract beyond the extent of the liberty expressl}' 
 granted in the indenture of March 29, 1860. 
 
 The first question is common to all the agreements or 
 deeds; the second arises, only under the indenture of March 
 29, 1860. 
 
 1. As to the Cornplanter township tract. This was the only 
 tract covered by the agreement of October 8, 1859, and the in- 
 denture of March 26, 1860. There was therein no grant of the 
 oil or minerals, and nothing to exclude the own^r of the soil 
 from searching and experimenting there also. The language 
 does not even purport to grant the riglit to take any oil out of 
 the earth. It is but a liberty to experiment, and strictly an 
 incorporeal hereditament; Johnstown Iron Co. v. Cambria 
 Iron Co., 8 Casey, 246. 
 
 The grant of the exclusive use of one acre of land around 
 each well, does not enlarge tlie privileges before granted. The 
 
Funk v. Haldeman. 209 
 
 previous grant would carry with it the riglit of ingress and 
 egress, and the exclusive use-of a reasonable curtilage appur- 
 tenant to each well. The exclusive enjoyment was to be after 
 appropriation, but before that, the privileges were to be in 
 "common. Looking at all the parts of the agreement, we have 
 a grant of the privilege of making an experimental search for 
 oil in consideration of $200, and constructively — not expressly 
 — a grant of the privilege of taking any oil the grantee might 
 find for another consideration, to wit, one third part of all that 
 he might, under. the liberty' granted, find and t&ke out of the 
 earth, and no more. The title to the oil did not pass in fee 
 under this grant. The $200 was no part of the consideration 
 for the oil; it was intended as compensation for disturbance 
 arising from the exercise of the license to search and dig. In 
 this, the coart below are sustained by Oruhh v, Ouilford, 4 
 Watts, 423. The agreement does not require Funk to take 
 any oils out of the earth, and after boring one well he might 
 have refused to proceed. So, too, after having operated with 
 one engine, he could not be required to multiply his opera- 
 tions. 
 
 He is the judge of the indications which are to justify him 
 in operating, and of the circumstances under which the enter- 
 prise might be abandoned, as provided for in the agreement. 
 
 It is therefore manifest that Funk's covenant does not re- 
 quire him to take all the oil, and therefore he is not bound 
 to pay for all. If McElheny then sold all the oil, it would be 
 "a sale without consideration," and as such "is not to be 
 held as intended by the parties unless the language of the 
 instrument shuts us up to such a conclusion :" Clement v. 
 Youngman, 4 Wright, 346. 
 
 Oil is not the subject of grant as a corporeal hereditament. 
 It is a movable, wandering, fugitive thing in the bowels of 
 the earth, and must of necessity continue common, like 
 water, so that one can only have a usufructuary property 
 therein: 2 Blackst. 18; LordMountjoy^s Case, 4 Leonard, 147, 
 is in close analogy to this case, but stronger in favor of an 
 exclusive right. In Chetham ^.Williamson, 4 East, 469, the 
 grant is quite as comprehensive as to tiie one under consid- 
 eration, and similar to it. Doe v.Wood, 2 B. & Aid. 724, has 
 been misunderstood by appellants' counsel. Seealso Grubh v. 
 VOL. VII.— 14 ' 
 
210 IXCOKPOEEAL HEREDITAMENTS. 
 
 Bayard, 2 "Wall., Jr., 96: Gillett v. Treganza, 6 Wisconsin, 
 343; Caldwell v, Fulton, 7 Casey, 476, sustains the ap- 
 pellees. The other cases cited are inapplicable, 
 
 1. Becanse the deeds purport to demise the land. 
 
 2. Because the landlord was necessarily excluded. 
 
 3. Leases for tillage are favorably construed on grounds 
 of public policy. 
 
 They further cited Bittinger v. Baker, 5 Casey, 66. Fnnk 
 could not divide any lot, and assign the smaller lot. Tliis .is 
 shown by the. cases already cited, and by Van Rensselaer v. 
 Radoliff, 10 Wend. 639; Leyman v. Aheel, 16 Johns. 30. 
 
 It is no objection to the decree on the cross- bill that it en- 
 forces or declares a forfeiture: 1 Smith's Ch. Pr. 460; Story's 
 Eq. 389, 391; 3 Daniel's Ch. PI. and Pr. 1744-45; Del. <& 
 Hud. Canal Co. v. Penn. Coal Co., 9 Harris, 131-146. 
 
 The opinion of the court was delivered January 7, 1867, 
 
 by WoODWAKD, C. J 
 
 Tiiese cases are a bill in equity and a cross-bill, which are 
 founded upon the respective titles^ of the parties to valuable 
 oil lands on Oil creek, in Venango county. 
 
 The first remarkable feature of the case (for the two bills 
 constitute essentially but one case) is the magnitude of the 
 conveyancing that has taken place. Not less than twenty 
 deeds and agreements are presented in our paper-books as 
 bearing more or less directly upon the questions discussed, 
 all of which have been made since 1859, when the right of 
 the present parties first attached. It probably will not be 
 necessary to notice particularly all of these conveyances, but 
 several of them must be carefully analyzed, and their legal 
 effect fully stated, for in them the rights of the respective par- 
 ties are rooted. And the principles of law appropriate to the 
 case, and the mode of their application, are to be discovered 
 only by a patient examination and comparison of the contents 
 of several deeds. 
 
 On and before the 8th day of October, 1859, David Mc- 
 Elheny was the owner and occupier of two lots or tracts of 
 land, one lying on both sides of Oil creek, in Cornplanter 
 township, Yenango county, containing 100 acres, the other 
 
FuiirK V. Haldeman. 211 
 
 lying on the north side of Oil creek, in Cherry Tree town- 
 siiip, in said county, containing eij>hty-fi7e acres, and the two 
 together constituting his farm, though they touched eacli 
 other only at one corner. To this latter lot, in Cherry Tree, 
 McElheny had then only an equitable title, but he obtained 
 the legal title on the 27tli of the succeeding February. 
 
 On the 8th day of October, 1859, McElheny and wife en- 
 tered into an "instrument of writing with A. B. Funk, which 
 is called an agreement, but is in form and substance a deed of 
 conveyance, with mutual covenants. In consideration of $200, 
 the receipt whereof from Funk is acknowledged, McElheny 
 and wife grant, bargain, and sell unto the said Funk, his heirs 
 and assigns, "the free and uninterrupted use, privilege, and 
 liberty to go onto any part of the 200 acres now owned, 
 occupied, and in possession of the party of the first part, it 
 being in the north part of Corn planter township aforesaid, 
 and lying each side of Oil creek, for the purpose of prospect- 
 ing, digging, excavating, and boring, and erecting thereon 
 frames, vats, engines, or anything necessary for the prospect- 
 ing, experimenting, or searcliing to find any ore, oil, salt, coal 
 or other mineral, and of taking the same out of the earth; 
 also, we, the said party of the first part, do hereby grant unto 
 the said party of the second part, the right, privilege, and ex- 
 clusive use of one acre of land at and around each well or 
 pit where the indications are such as will justify in operating 
 or experimenting; and, also, the said party of the second 
 part, his heirs and assigns, are to have fre6 ingress, egress 
 and regress on and over said land by himself, hands and teams, 
 tenants and undertenants, occupiers or possessors of the 
 said springs, mines, ore or coal-beds, in common with' the 
 said party of the first part, their heirs and assigns." 
 
 Then fallow the covenants of Funk: that he will use no more 
 land for roads or ways than shall be absolutely necessary; that 
 he will commence operating the next spring, and will during 
 the spring and summer put in operation a steam-engine on 
 said land, and will energetically and diligently use all reason- 
 able efi^orts to obtain the oils, ore, or minerals sought for; and 
 if he succeed in finding or procuring any oil, ore, salt, coal, or 
 other minerals, then, in addition to the $200 paid, he agrees 
 to give the one third part of all that is taken out of the earth, 
 
212 Incokporeal Heeeditamekts, 
 
 on the premises, in barrels to be furaished bj McElheny at 
 the pit's mouth. Should the prospecting and experimenting 
 prove a failnre, and the enterprise be abandoned, Funk was to 
 have the privilege of removing all engines, vats, and fixtures 
 of every kind, and the premises to revert back to McElheny, 
 whose right of tillage was in any event to be uninterrupted, 
 except as to the one acre about each pit. 
 
 On the same day a supplemental covenant was made, that 
 in case of a failure of the enterprise Funk was to fill in all the 
 wells or pits he may have opened, " and in no case shall the 
 said Funk be permitted to occupy any land within 100 yards 
 of his (McElheny's) buildings." 
 
 Some question was made in the argument as to the territorial 
 extent of Funk's rights under this deed — whether they extended 
 to that part of the farm that lay in Cherry Tree township, or 
 were limited to the part in Cornplanter township. Whatever 
 might be the construction of the deed, if taken by itself, and 
 subject to the rule that deeds are to be construed most strong- 
 ly against grantors, we entertain no doubt that the deed, 
 when taken in connection with subsequent conveyances here- 
 after to be noticed, is to be limited in its operation to that 
 part of the McElheny farm that lay in Cornplanter town- 
 ship, and can have no eflfect on the eighty-five acres in Cherry 
 Tree. 
 
 Such was the original grant out of which this controversy 
 sprang; but, before pausing to notice its legal effect, it is 
 necessary to bring several other conveyances into view. 
 
 On the 2d day of December, 1859, McElheny and wife en- 
 tered into another " agreement " with John H. Dalzell and 
 Thomas Donnelly, which began by fully reciting the prior 
 agreement of 8th October with Funk, and then went on in 
 the form of an indenture to grant, bargain and sell to Dal- 
 zell and Donnelly " the one half of the oil, salt, coal, or other 
 minerals which may be taken from the said lands in accord- 
 ance with the agreement of McElheny and Funk aforesaid; " 
 and in case Funk should abandon his rights, Dalzell and 
 Donnelly were to succeed them, and for the rights hereby con- 
 veyed to them they were to pay McElheny $800. A subse- 
 quent clause defined that he was to convey only the one 
 half of the portion of the oil, salt or coal which he should 
 
Funk v. Haldeman. 213 
 
 receive from Funk. Such undoubtedly would lia^ve been" the 
 legal construction of the deed without the explanatory clause. 
 It left in McElheny one sixtli of what is called the royalty 
 that Funk was to pay, and transferred the other one sixth to 
 Dalzell and Donnelly, their heirs and assigns. 
 
 On the 28th day of January, 1860, McElheny sold and con- 
 veyed to William H. Ewing, in consideration of $595, one 
 twelfth of the royalty he was to receive from Funk, together 
 with a right of succession to all Funk's rights in case he aban- 
 doned the enterprise, and Dalzell and Donnelly also elected 
 not to take his place. 
 
 McElheny now retained to himself whatever interest in the 
 freehold he had not conveyed to Funk, together with a right 
 to one twelfth of all the oil, salt or ore Funk should take out 
 of the earth. Then, on the 22d March, 1860, he and his wife, 
 in consideration of $20,000, conveyed, by indenture to Joseph 
 Gr. Hussey, William D. McBride and Levi Haldeman, all of 
 the State of Ohio, both of the tracts of land before mentioned, 
 particularly describing them by metes and bounds, the one in 
 Oornplanter, the other in Cherry Tree township, and subject 
 only to the three before mentioned agreements — the first with 
 Funk, the second with Dalzell and Donnelly, and the third 
 with Ewing. 
 
 Four days after this deed had invested them with McEl- 
 heny's proprietorship, to wit, on the 27th March, 1860, Hus- 
 sey, McBride and Haldeman, with their wives, entered into 
 agreement with Funk, that requires particular attention. 
 It recites the conveyances by McElheny to Funk and them- 
 selves, and then follows this recitation: " And, whereas, it is 
 mutually desired by the parties hereto, that the boundaries of 
 the land covered by the aforesaid grant to A. B. Funk should 
 be more definitely described, and that the part reserved and 
 excepted from said grant should be more cleanly ascertained 
 and designated than is done in said recited instrument of 
 writing by reference to perishable buildings;" then, therefore, 
 it is covenanted and agreed that the " grant of rights and 
 privileges unto the said A. B. Funk shall be deemed, con- 
 sidered and construed to cover, extend over and include all that 
 certain tract of land situate in Oornplanter township, bounded 
 and described," etc., by courses and distances, " excepting and 
 
214 Incorporeal Hereditaments. 
 
 resef-ving from said grant all that part of said tract included 
 in a strip forty-three rods wide, and extending along the south 
 side thereof, from the east to the west line across the whole 
 breadth of said tract, said strip being of the length of 137 
 perches, and of the depth of forty-three perches; and it is 
 further agreed that within the said limits and boundaries 
 aforesaid, all and sinsjular the grants, privileges, provisions 
 and stipulations in said recited instrument of writing con- 
 tained, are hereby ratified, confirmed and renewed; and that, 
 within the reserved strip aforesaid, said parties of the first 
 part retain to themselves, their heirs and assigns, all the rights 
 of ownership, as thongh none of the grants and agreements 
 aforesaid had ever been made or entered into. It being 
 understood, also, and hereby expressly agreed, that the said 
 A. B. Funk, his heirs and assigns, at his and their discre- 
 tion, are to have the right of assigning and transferring 
 the rights and privileges herein granted, in whole, to any one 
 or more parties, or to subdivide said lands into suitable lots, 
 and assign and transfer his rights and privileges aforesaid, to 
 be exercised and enjoyed by his assignees or transferees sev- 
 erally within the limits of such lots or subdivisions." 
 
 The next paper, dated 29th March, said to have been exe- 
 cuted and delivered 5th May, 1860, was an indenture between 
 Hussey, McBride, and Haldeman, and their wives, of thefiist 
 part, and A. B. Funk of the second part, wherein the par- 
 ties of the first part, in consideration of Funk's covenants, and 
 of one dollar, granted to him the same rights on the tract in 
 Cherry "Tree township which McElheny had granted to him 
 in the tract in Cornplanter township, and in the same terras 
 substantially, reserving, however, from this grant, so much of 
 said tract as is ex)ntained in lots marked and numbered 5 and 
 6 on a plot of a survey made by S. M. Irwin, dividing said 
 tract into ten parcels, said reserved lots, 5 and 6, being about 
 the center of said tract, and running, from the creek to the 
 northern boundary line, being of the width of thirty-six and 
 six tenths rods, and containing together 23 acres and 14-5 
 perches, within which said lots, 5 and 6, said parties of the 
 first part retain to themselves, their heirs and assigns, all the 
 rights of ownership, as though none of the grants and agree- 
 ments herein contained had ever been made or entered into; 
 
Funk v. Haldeman. 215 
 
 but as to the other lots, marked l"^os. 1, 2, 3, 4, 7, 8, 9 and 
 10, on the plot aforesaid, the said A. B. Funk, his heirs and 
 assigns, are to have and enjoy all the rights and privileges 
 herein granted, and the liberty of assigning and transferi'ing 
 said rights and privileges in whole, or as to any one or more 
 of said lots, severally, at his and their option and discretion." 
 
 Then follow Funk's covenants to commence operating that 
 spring, to put up a steam-engine on the land, to use all rea- 
 sonable efforts to obtain oil, and to deliver to the parties of 
 the first part one equal third part of all that is taken out of 
 the earth 6a the premises, and to use no more ground for roads 
 and ways than shall be absolutely necessary.' 
 
 The agreement concluded with a stipulation that it shall 
 not be construed as a conveyance of the "soil or land of the 
 premises," or to interfere with the right of the parties of the 
 first part to occupy buildings, and to till the soil of any part 
 not actually used and occupied by said Funk; and in case of 
 the abandonment of the enterprise. Funk is to fill up excava- 
 tions, remove engines and fixtures, and the "titles to said 
 lands shall revert to said parties of the first part, their heirs 
 and assigns, as fully and effectually, to all intents and pur- 
 poses, as if this present indenture had never been made." 
 
 On these several deeds it is to be observed: 
 
 1. That they limit Funk's rights under the original deed 
 of 8th October, 1859, to the tract in Cornplanter township, 
 and show that he acquired no right, by virtue of that deed, in 
 the tract in Cherry Tree township. 
 
 2. That, as to the Cornplanter tract, his rights were extin- 
 guished in the part reserved, but as to all the rest of this 
 tract, his rights were ratified, confirmed, and renewed, with 
 the ve'ry important additional right to subdivide said lands 
 into suitable lots, and to transfer them in severalty. 
 
 3. That the same rights were conveyed to Funk by the 
 deed of 29th March, 1860, as to all of the tract in Cherry 
 Tree, except twenty-three acres, 145 perches, reserved, being 
 lots ISTos. 5 and 6 on Irwin's plan, and that as to these lots he 
 had no rights, but as to all the rest of the lots on Irwin's plan 
 he had the same rights as had been granted and confirmed to 
 him in the land in Cornplanter township, with the right of 
 subdivision and alienation in severalty fully granted. 
 
216 Incoepokeal Hereditaments. 
 
 Hussey, McBride and Haldcman made leaseB to various 
 parties of oil rights witliin their reservations, and Funk sub- 
 divided his territory (all the unreserved portionsof both parts 
 of the McEllieny farm) into suitable lots, and let them to va- 
 rious parties, individuals, and oil companies, for the purpose 
 of raising oil, all his lessees being bound to yield the appoint- 
 ed royalty to the landlords, and to divide with him as agreed 
 by them respectively, I do not know that a more minute 
 reference to these various leases, all bottomed on the convey- 
 ances we have gone over, M'onld help us materially in defining 
 the rights of the original parties. 
 
 But when Hnssey, McBride and Haldeman, notcontent with 
 mining for oil upon their reserved portions, claimed a right in 
 comnion with Funk to mine within his lines, upon any land 
 n it actually occupied by himfor mining purposes, and claimed, 
 moreover, tiiat Funk, by subdividing his rights, had for- 
 feited them, so that neither he nor his lessees miglit lawfully 
 take oil from any part of the premises, litigation became in- 
 evitable, and these bills were filed. 
 
 Two learned judges in the court below passed upon the 
 questions arising out of this mass of conveyancing, and came 
 to exactly opposite conclusions. For this reason, as well as 
 on account of the intrinsic importance of the case, we have 
 given more than usual attention to these questions, and I am 
 now to state, first, the conclusions of the court, and then the 
 grounds on which they rest. We are of opinion: 
 
 Ist. That the conveyances vested in Funk, in fee simple, 
 within the lines designated in the deeds, an incorporeal here- 
 ditament. 
 
 2d. That this interest, which would have been entire and 
 indivisible at law, was made divisible by the terms of the 
 grants. 
 
 3d. That this interest, which at law would have been held 
 in coinmon with the grantors, was made by the parties exclu- 
 sive in Funk, his heirs and assigns, within the designated lines. 
 
 4th. That whatever may be rights of way, of tillage, and of 
 building, reserved to the grantors within Funk's lines, they 
 have no mining rights therein, and can Iiave none until 
 Funk, or those claiming under him, have forfeited their rights 
 by breaches of their covenants. 
 
Funk v. Haldeman. 217 
 
 Our reasons in support of each of these conclusions shall be 
 stated as briefly as possible. 
 
 1st. The interest granted to Funk is an incorporeal here- 
 ditament. Tlie firs,t word that occurs in the definition of an 
 incorporeal hereditament is " right." A right issuina; out of 
 a thing corporate, or concerning, or annexed to, or exercisa- 
 ble within the same. It is no part of the corporate thing; 
 that remains as perfect, after the right has issued or been ex- 
 ercised, as before. Tlie incorporeal hereditament, always, a 
 creature. of contract, is a collateral incident which may be- 
 long or not belong to the thing corporate, without any visi- 
 ble alteration therein. 
 
 "When this right takes the form that is designated, in the 
 classification of incorporeal hereditaments, a "common," it is 
 called a profit which one man hath in the land of another. 
 Not ordinarily an exclusive profit, for in the instance 'of 
 common of pasture, though an owner of the soil grant 
 another common of pasture, sans nombre, yet the grantee 
 can not use the common with so many cattle that the grantor 
 shall not have sufficient common for his own cattle: 1 Co. 
 Litt. 122. 
 
 Recurring now to the very language of the several grants, 
 which I have quoted from the deeds, it will be seen to amount 
 neither to a lease, nor a sale of the land, nor of any of the 
 minerals of the land. No estate or property, either in the 
 soil or minerals, was granted. If the grantor's dominion over 
 these was not as complete after the grants as before, it was 
 because of the covenants which restrained it, and not because 
 of any title to either soil or minerals that had vested in 
 Fnnk. 
 
 This is a matter of construction. It was argued that, upon 
 the principles laid down in Caldwell v. Fulton, 7 Casey, 476, 
 we ought to construe tliese grants as a conveyance of titles to 
 the minerals; but the language will not bear it. There the 
 grant was of all the coal in the land, for a sum in solido. "VVe 
 could make nothing more or less of it than a sale and con- 
 veyance, for a present consideration, of all that part of the 
 land which tlie parties designated as " stone-coal," and though 
 we have heard the ruling in that case repeatedly criticised, and 
 have had occasion, very seriously, to reconsider it, we are to« 
 
218 Incorporeal ^Hereditaments. 
 
 day more firmly persuaded than ever before that the constnic- 
 tion of the conveyance there was the sound and necessary con- 
 struction. But here tlie right granted was to expcrin)ent for 
 oil, -if found, to sever it from the soil, and to take it, on yield- 
 ing a third to tlie landlord, as a cJiattel, not as any part of the 
 realty. And the only possession to which the grantee was 
 admitted was such as was necessary to the exercise of this 
 riglit. The exclusive possession even of the acre about the 
 pit's month was to terminate with an abandonment of the ex- 
 periment; and the consideration for this right v/as not in 
 the $'J()0 paid by Funk (that was only for the entry to ex- 
 periment), but was to be measured by the oil twken from the 
 ground. Herein it resembled the case of the Johntown Iron 
 Company v. The Odmhria Iron Company, 8 Casey, 241, 
 much more closely than the case of Caldtoell v. Fulton. 
 As it was said, in that case, that no more ore was sold 
 than should be raised, so it may be said here that no more oil 
 was sold than should be raised. As to all not raised, there was 
 no chanife of property; as to all raised, one third was retained 
 and only two thirds were sold, and that as a chattel. 
 
 If Funk acquired no estate in lands or minerals, what is 
 his right to be denominated? I answer, a license to work the 
 land for minerals. Bainbridge, in his work on the Law of Mines 
 and Minerals, p. 246, says: "There is a great distinction be- 
 tween a lease of mines and a license to work mines. The 
 former is a distinct conveyance of an actual interest or estate 
 in lands, while the latter is only a mere incorporeal right to 
 be exercised in the lands of otliers. It is a profit a prendre, 
 and may be held apart from the possession of land. In order 
 to ascertain whether an instrument must be construed as a 
 lease or license, it is only necessary to determine whether the 
 grantee has acquired by it any estate in the land, in respect 
 of which he might bring ejectment. If the land is still to be 
 considered in the possession of the grantor, the instrument 
 will only amount to a license, and though the licensee will 
 certainly be entitled to search and dig for mines, according 
 to the terms of the grant, and appropriate the produce to his 
 own use on payment of the stipulated rent or proportion, yet 
 he will acquire no property in the minerals till they are sev- 
 ered from the land, and have thus become liable to be recov- 
 ered in an action of trover." 
 
Funk v. Haldeman. 219 
 
 In the coal mining districts of Pennsylvania, leases for terms 
 of years are very-common. Tliey are estates in laud. The 
 rent is usually measured by the tons talten, but the tenant is 
 bound to a. minimum production annually, and the transaction 
 amounts to a sale, at a price per ton, of tlie coal in the prem- 
 ises, and constitutes an interest in the lessee in the nature 
 of a corporeal hereditament. , 
 
 But though we hold the papers in this instance to constitute 
 a license, and not a lease, it is a license coupled with an inter- 
 est; not a mere permission conferred, revocable at the pleas- 
 ure of the licensor, but a grant of an incorporeal hereditament 
 which is an estate in the grantee, and may be assigned to a 
 third party. Even a parol license, without consideration, on 
 the faith of which the grantee expends money, can not be re- 
 voked, at the pleasure of the grantor, but will be enforced in 
 equity: Ze i^'ew/'e v. Ze ^e-yre, 4 S. & E. 241 ; RericJcw. Keen, 
 14 Ibid. 271; and see Wood v. Ledbitter, 13 M. & W. 840, 
 and cases in note. 
 
 Tliongh this proposition is doubted, perhaps denied, in some 
 of the States around us, it is not to be doubted that where 
 large expenditnres have been made under a written license, 
 rights are acquired which will be uplield both at law and in 
 equity. 
 
 2d. The second proposition is that the interest of Funk, 
 which would have been entire and indivisible at law, was made 
 divisible by the terms of the grants. 
 
 As to the first branch of this proposition, the indivisibility 
 of such interests at law. Lord Mountjoy's case is the leading 
 case upon which all our subsequent law on this subject is built. 
 What was that case? According to Anderson, who as Chief 
 Justice of the Common Pleas took part in the decision, and 
 therefore ought to be the best reporter of it, there was noth- 
 ing .decided or said about the entirety and indivisibility of 
 the mine rights in question. Lord Mountjoy, seized of two 
 parts of the manor of Sanford, sold and conveyed them by 
 deed to J. Brown and Charles Brown, with a proviso that it 
 should be lawful for Mountjoy, his heirs and assigns, at all 
 times, to have, take, and dig, in and upon the heath ground 
 of the premises, sufficient ores, heath, turves and other neces- 
 saries for the making of alum or copperas, and to build neces- 
 
220 Incoepokeal Heeeditaments. 
 
 sary houses, etc. Mountjoy then, by deed, granted fnll mine 
 rights in said manor to one Kichard Leycolt, for the term of 
 thirty-one years, the said Leycolt yielding therefor yearly to 
 Mountjoy one half of the clear profits of his mining operations. 
 The case, being before the Lords of the Privy Council, was by 
 the royal command referred to Andeeson, Chief Justice of the 
 Common Pleas, and to Peeyam, Chief Baron, to certify their 
 opinions on the disputed points. These justices reported that 
 " we have divers times conferred thereon, not only between 
 ourselves, but with some other justices," and are of opinion: 
 
 " Ist. That said two parts were well conveyed to the Browns, 
 absolutely, without conditions. 
 
 " 2d. That Lord Mountjoy, by the assurance passed between 
 him and the Browns, had a right in fee to dig turves, ores, 
 etc., as mentioned in the proviso. 
 
 " 3ci. That Mountjoy might dig ore and other things foi 
 making alum and copperas as he should think fit. 
 
 " 4:th. That we and others that conferred are very doubtful 
 and can not agree, whether any remedy by law is given for 
 the things reserved by the indenture or no." 
 
 According to Anderson, tliesewere the only-points ruled in 
 this famous case, and as he had studied the case with the aid of 
 Ch. J. Weat, of the K. B., Chief Baron Manwood, of the Ex- 
 chequer, " et autres," and decided it for the Privy Council, he 
 surely ought to know, better than any other, what the points 
 in judgment were. Yet Lord Coke, who was of counsel for 
 Mountjoy, reports the points ruled, not in his reports, but sevr 
 eral years afterward, in his comments upon Littleton, and 
 among them he states the following: " That Mountjoy might 
 assign his wliole interest to one, two or more; but then, if 
 there be two or more, they could make no division of it, but 
 work together with one stock; neither could Mountjoy assign 
 his interests in any part of the waste to one or more, for that 
 might work a prejudice and surcharge to the tenant of the 
 land, and therefore if such an uncertain inheritance descend- 
 eth to two coparceners, it can not be divided between them. 
 1 Co. Litt. [Thomas' Ed.] p. -536." 
 
 This point has been stated by subsequent reporters, Godbolt, 
 Leonard, Moor, and perhaps others, and has been taken for 
 law by the courts, both English and American: Chetham v. 
 
Funk v. Haldeman". 221 
 
 Williamson, 4 East, 469; Doe v. Wood, 2 B. & A. 789; 
 Grubb V. Bayard, 2 Wallace 0. 0. R. 97; Lyman v. Aleel, 
 10 Johns. R. 31; Caldwell v. Fulton, 7 Casey, 475. 
 
 How are tliese discrepant reports to be accounted for? That 
 Lord Coke was not superior to the professional infirmity which 
 sometimes makes the "wish father to the thought" is shown 
 by his frequent substitution of his own argument for the reso- 
 lutions of the judges. In his reports it is often very difficult 
 to distinguish the points ruled by the judges from his infer- 
 ences and observations. Southeote's Case, 4 Coke, 83, is an 
 instance in point, for which Lord Holt, in the great case of 
 Coggs V. Bernard, 2 Lord Raymond, 915, rebuked his habit 
 of '•'■improving" upon cases and drawing unwarranted con- 
 clusions. It was probably a similar liberty he took with 
 Mountjoy's case. 
 
 But, however this may be, it is certain that the courts in 
 modern times have taken the law of that case from Coke 
 rather than from Anderson, and it is now too late to connect 
 the common error. We take it as it is ordinarily received, 
 and we ^ay that the grants to Funk, judged merely by the 
 granting parts of the instruments, constituted an entire and 
 inseparable interest. He might assign it to one or more, but, 
 if to more than one, they must hold together as tenants in 
 common of an impartible estate, like that in Coleman v. Cole- 
 Tnan, 7 Harris, 100. To sever it was to destroy it. But the 
 legal effect of the grant could be con-trolled by the agreement 
 of the parties, and we think it was very essentially modified by 
 what we find in some of the deeds. In the original agree- 
 ment between McElheny and Funk, we find no stipulation for 
 the divisibility of the interest granted, but in the confirma- 
 tory deed of 26th March, 1860, which was limited to the Corn- 
 planter tract, it was expressly stipulated that Funk, his heirs, 
 and assigns, at his and their discretion, have the right of as- 
 signing and transferring the rights and privileges herein 
 granted^ in whole, to any one or more parties (which was de- 
 claratory only of the legal effect of the instrument), " or to 
 subdivide said lands into suitable lots, and assign and trans- 
 fer his rights and •privileges a,foresaid, to he exercised and 
 enjoyed by his assignees or transferees severally, within the 
 li7nits of such lots of subdivisions" 
 
222 Incorporeal Hereditaments. 
 
 'Now, it will be remembered that thfe deed withdrew alto- 
 gether from Funk, so much of what McElheny had convej'ed 
 as was contained in the "reservation," bnt as to the residne of 
 tlie Cornplanter lot, if he was not to have the right to subdivide 
 it into lots, and grant them in severalty, the above words are 
 unmeaning. His rights are called "lands," bj whicli we are 
 not to understand the title to soil or minerals, but the rights 
 were to be subdivided by subdividing the lands in which tliey 
 existed and were to be exercised. And such a subdivision 
 might be made as would constitute his grantees tenants in sever- 
 alty — the technical word for a sole, separate and exclusive do- 
 minion. " Suitable lots " mean lots fitted for mining purposes, 
 and there is no allegation that the divisions made were unsuit- 
 able in this sense. Upon such a subdivision the power of par- 
 tition, not inherent in the title originally, attached, and the 
 exercise of so plainly granted a power can not work a forfeit- 
 ure of estate. In Lord Mountjoy's case there was no similar 
 provision, but only a grant and a proviso in the ordinary 
 technology of conveyancing. "Without impairing the effect 
 of that case a jot, we are bound to give effect to all the terms 
 in which these parties have expressed their intentions. It 
 would be a superstitious reverence for the name of Coke to 
 allow his report of Mountjoy's case to overrule the clearly ex- 
 pressed intentions of the parties now before us. He himself, 
 if here, would "note the diversity^'' and we must not overlook 
 it, nor fail to give it effect. The same observations are appli- 
 cable to the deed of 29th Marcli, 1860, relative to the tract in 
 Cherry Tree, for there the division agreed on with Funk, and 
 the power conferred on him to subdivide and to grant in sev- 
 eralty, are equally express and plain. And, as in Mountjoy's 
 case, so in none that have followed it was there a similar con- 
 dition of tenure. 
 
 3d. My third proposition has been somewhat anticipated 
 already in what has been said. That Funk's interest would 
 have been, by force of the mere terms of conveyancing, held 
 in common with the grantors, is one of the deductions, from 
 Mountjoy's case which is not to be questioned, but that, by 
 supplemental terms, the parties meant to make it exclusive 
 in Funk, his heirs and assigns, is, we think, equally unques- 
 tionable. Il^obody will doubt that this effect may be imj arted 
 
Funk v. Haldeman. 223 
 
 to a conveyance of snch an interest. Savs Bainbridge, p. 
 274, after reviewing the case of Lord Monntjoj and its Eng- 
 lish sequence: " It appears, therefore, that an exclusive right 
 to minerals will not necessarily be conferred by the grant of a 
 license to work them. But it must not be concluded, from 
 these decisions, that the license to work may not be in such a 
 form as effectually to vest in the grantee a sole and undistnrb- 
 able riglit to the minerals. It may be generally laid down 
 that, if it appear to be the intention of a deed of grant or 
 license that the grantee should be solely and exclusively en- 
 titled to work for minerals, the grantor will be afterward pre- 
 cluded from abridging or derogating from his grant by any 
 attempt to exercise a right, similar only indeed, but incom- 
 patible with its former disposition." And even at common 
 law a man may prescribe or allege a custom to have and en- 
 joy solam vesfuram terrcB, from such a day to such a day, 
 and hereby the owner of the soil shall be excluded to pasture 
 or feed there^ and so he may prescribe to have separalev^ pas- 
 turam, and exclude the owner of the soil, or separalem pis- 
 carium in sncii a water, and the owner of the soil is not to 
 fish there: Thomas' Co. Litt. p. 185. All incorporeal inter- 
 ests lie in grant, and if custom may impose the quality of 
 exclnsiveness, much more the terms of the grant may. 
 
 We take up these multitudinous conveyances, then, to dis- 
 cover what relations the parties intended to establish between 
 themselves; and what do we find? We find the parties ar- 
 ranging for a full development of the oil in these lands. The 
 owners cut oif and reserve to themselves a part ofeaqh tract, 
 in which they might mine for oil in their own time and way. 
 They license Funk to enter upon the unreserved portions of 
 each tract to experiment for oil, to subdivide his premises into 
 suitable lots for this purpose, and to assign and transfer said 
 lots, in whole or severalty, according to his option and discre- 
 tion, and then place him under covenants to erect machinery 
 and fixtures, and "energetically and diligently" to use all rea- 
 sonable efforts to obtain oil, and to give them one third of all 
 that he raises. Exclusive possession of an acre around each 
 well isexpressly given to him. And the only rights of pos- 
 session reserved to the grantors have reference to roads, build- 
 ings and tillage, nothing within Funk's lines being reserved 
 
224 Incorporeal Heueditaments. 
 
 fox- the purpose of raining for oil. On the faith of this license 
 Funic, and others under him, incurred large expenditures, 
 sworn in the proofs to have been between $75,000 and $100,- 
 000 in 1860 and 1861, and about $700,000 since that time, 
 and they liave kept and performed ail his covenants. 
 
 Now, although there is no express stipulation that his min- 
 ing rights shall be exclusive of tlie grantors, is it not a fair and 
 necessary inference from the premises? Is it conceivable that 
 the parties meant that, wlien, after ranch labor and large ex- 
 penditureSjFunkshould strike oil, the grantors might sink wells 
 on the adjoining acre, and take not only a third of Funk's prod- 
 uct, but all they could pump from their own wells, though they 
 should dry up and ruin his wells altogether? If so, to what 
 end were the premises so carefully marked out and divided be- „ 
 tween the p^irties? If so, what significance or value was there 
 in the clearly expressed right to subdivide and assign to third 
 parties ? 
 
 Asssredly, Funk's lessees would not have gone on to oper- 
 ate upon the subdivisions if they had not thought they were 
 getting exclusive rights therein. And the grantors would 
 not have stood by in silence and seen their lessee and his sub- 
 lessees expending time and labor and money upon the faith 
 of an exclusive right, if they had not also understood the pa- 
 pers to vest such a right. Their conduct in this regard might, 
 with considerable reason, be treated as an equitable estoppel, 
 but as bearing upon the construction of the papers, it is ex- 
 ceedingly significant, and this is the light in which we are 
 now contemplating it. Surveying the case all over, as pre- 
 sented in the bills, answers and proofs, it is impossible to 
 account for the conduct of the parties, except upon the pre- 
 sumption that, up to a comparatively recent period, they con- 
 strued the papeis as conferring an exclusive right to mine 
 for oil within the lines marked out for Funk. When we 
 construe them in the same manner we are justified, there- 
 fore, by that best of all rules of interpretation — contempora- 
 neous construction. 
 
 4th, The fourth proposition results as a corollary out of 
 the former ones. If Funk's mining rights were exclusive 
 within the lines assigned to him, it follows that the grantors 
 can exercise no rights within those lines until a breach of the 
 
Funk v. Haldeman. 225 
 
 covenants has been established. Whatever rights they pos- 
 sess relate to the surface, and as to subterranean ti-easures, 
 they have excluded themselves, as an owner of the soil may 
 be excluded from a separalem, pasturam or a separalem pis- 
 oarium. 
 
 Throughout this opinion I have treated oil as a mineral. 
 Until our scientific knowledge on the subject is increased, 
 this is the light in which the courts will be likely to regard 
 this valuable production of the earth. But out of this re- 
 sults the difBculty of a strict classification of a right to take 
 it as an incorporeal hereditament. If a mineral, it is part of 
 the land, and a right to take land or any part of land, is not, 
 strictly speaking, an incorporeal hereditament. Nor is the 
 right to fire- bote, or plow- bote, or turves; and j'et, for the 
 want of a better classification, this is treated in law as an incor- 
 poreal interest. To thfe same head is to be referred these 
 oil rights. 
 
 One other observation shall conclude this too long opinion. 
 
 The parties stand in a court of equity, and it is impossi- 
 ble to shut our eyes to the fact that what is asked for on be- 
 half of Hussey, McBride and Ilaldeman is that we should 
 declare a forfeiture of the rights granted to Funk; not, per- 
 haps, a forfeiture in form, but in substance and legal effect a 
 forfeiture. 
 
 If Funk has violated his tenure or his covenants — if he has 
 undertaken to subdivide into severalty that which he could 
 only hold as an entirety, he has lost all : for, unless he re- 
 mained clothed with the whole, he had nothing. Even then, 
 however, a chancellor would be likely to send the grantors into 
 a court of law to enforce the forfeiture by ejectment: for equity 
 does not ordinarily enforce forfeitures. 
 
 But upon full consideration of the papers, we are of the 
 opinion that there has been no violation either of tenure or 
 covenants, and therefore tkere is no forfeiture to enforce, either 
 at law or equity. 
 
 And now, to wit, January 7, 1867, these cases having been 
 argued and fully considered, it is ordered, adjudged and de- 
 creed that the decree of the Court of Common Pleas of Ye- 
 nango County, of the 19th of July, 1866, be reversed, set aside 
 and taken for naught, and that the decree of the said court of 
 VOL. VII. — 15 
 
226 Incokpoeeal Hereditaments. 
 
 28th April, 1864, be restored and confirmed as the decree of 
 this court in the appellant's bill, and that the cross-bill filed 
 in behalf of the appellant be dismissed, and that the appel- 
 lees pay the costs. 
 
 Gkubb v. Getjbb et al. 
 
 (74 Peiinsylvania State, 25. Supreme Court, 1873.) 
 
 ' Grant of iron ore limited to a certain farnace, construed to create 
 an incorporeal hereditament. Clement and Edward Grubb owned 
 in common "The Mount Hope estate," which consisted of several 
 tracts of land, and one sixth of "three certain mine hills, known 
 as Cornwall ore banks." Clement conveyed to Alfred his half of 
 "The Mount Hope estate," designating the particular tracts, to- 
 gether with the right, "so far as the said Alfred's right under this 
 conveyance in said Mount Hope furnace is concerned, of the said Clem- 
 ent to raise, for the use of said furnace, iron ore out of three cer- 
 tain mine hills, etc., known as the Cornwall ore banks, etc., but for so 
 long and such time only as said furnace can be carried on, etc., by char- 
 coal." Held, that this conveyance granted to Alfred a limited privilege 
 to take ore, and did not convey the corporeal estate in the mine hills; 
 that remained in Clement. 
 
 Collateral recitals in deed as evidence in partition. The deed from 
 Clement to Alfred recited that Clement held the said land in common 
 with Edward. In an action of partition by the heirs of Edward against 
 Alfred, held: that the deed was prima facie evidence for plaintiff of 
 the title of Edward's heirs. 
 
 Ore banks passed as appartenances. In his declaration in partition the 
 plaintiff demanded " The Mount Hope Estate," setting out the particu' 
 lar tracts and not the ore hills, but averred that each tenant was entitled 
 to one eighth of the premises with the "appurtenances": Held, that 
 the right to the ore in the mine hills passed under "appurtenances." 
 
 Error to the Court of Common Pleas of Lancaster County. 
 
 This was an action of partition, in which E. Bnrd Grnbb, 
 Henry B. Grubb, Charles K. Grubb, by Eupheraia P. Grnbb, 
 their guardian, were plaintiffs, and Alfred Bates Grnbb was 
 defendant. 
 
 The writ, which was issued August 18, 1870, was for the 
 partition of " an estate known and called by the name of 
 Mount Hope, situate partly in Lebanon and partly in Lan- 
 caster counties, and composed of the following tracts of land, 
 
 ' Gloninger v. Franklin Co., 55 Pa. St. 9; Post License. 
 
Geubb v. Grubb. 227 
 
 to wit: one tract situate partly in Rapho township, in Lan- 
 caster county, and partly in Lebanon township, in Lebanon 
 county, adjoining lands of the heirs of Thomas B. Coleman, 
 deceased, etc., containing one thousand and eighty-nine acres, 
 with a furnace, etc. ; one other tract, situate in Londonderry 
 township, in Lebanon county, adjoining lands of the heirs of 
 Thomas B. Coleman, deceased, etc., containing two hundred 
 and seventy-three acres and twenty-eight perches, etc.; one 
 other tract, situate in Londonderry township, in Lebanon 
 county, adjoining lands of the heirs of Thomas B. Coleman, 
 deceased, etc., containing two hundred and sixty-two acres 
 and seventy-three perches, etc.; one other tract, situate in 
 Lebanon township, in Lebanon county, adjoining lands of the 
 heirs of Thomas B. Coleman, deceased, on all sides, and con- 
 taining one hundred and thirty acres and forty perches, etc. ; 
 one other tract, situate in Londonderry township, in Lebanon 
 county, adjoining lands of Thomas B. Coleman's heirs, etc., 
 containing one hundred and twenty-five acres." 
 
 The declaration set out the writ, and that the plaintiffs and 
 the defendant held "together and undivided the messuages 
 and tracts of land aforesaid, together with the appurtenaucef, 
 one eighth part whereof, the whole into eight eijual parts to 
 be divided, with the appurtenatices, belongs to the said E. 
 Burd Grubb," and so with the other parties. 
 
 The defendant pleaded ^'■non tenet insimul"; he also 
 pleaded specially, " that the tracts of land mentioned and 
 described in the declaration of the plaintiffs do not constitute 
 the entire Mount Hope estate, but are merely part and parcel 
 thereof; that the said estate, in addition to the said tracts of 
 land mentioned and described in the said declaration, com- 
 prises and includes the one undivided sixth part of three cer- 
 tain mine hills, situate in Lebanon township, in Lebanon 
 county, and State of Pennsylvania, bounded on all sides by 
 lands late of Robert W. Coleman, deceased, and William 
 Coleman, deceased, and known and called by the name of 
 the Cornwall ore banks, and held as a tenancy in common 
 with tlie heirs of Robert W. Coleman, deceased, the heirs of 
 William Coleman, deceased, and heirs of James Coleman, de- 
 ceased, by Clement B. Grubb and the plaintiffs and defendant 
 in this suit; that the several tracts of land mentioned and 
 
228 Incorpobeal Heeeditaments. 
 
 described in the plaintiffs' declaration are, and for a lon^ 
 time past have been, used in and for the manufacture of iron 
 by means of a smelting furnace thereon erected, and can be 
 advantageously and profitably used only for that purpose; 
 and the owners of the said Mount Hope estate have for a long 
 time past owned, held and used tlie said tract of land in con- 
 nection with the said undivided sixth part of the said Corn- 
 wall mine hills or ore banks, and as constituting with the same 
 one single estate, and have obtained their supply of ore for 
 the said furnace on the said tracts, erected tVom the said un- 
 divided sixth part of the Cornwall mine hills or ore banks. 
 And if partition should be made of the lands demanded in 
 the writ, without and apart from the said sixth part of the 
 Cornwall mine hills or ore banks, the interest of the defend- 
 ant in said Mount Hope estate would be seriously impaired' 
 and injured, and the defendant says that no partition of the 
 said tracts of land in the writ and declaration mentioned, 
 without and separate from the said sixth part of the Cornwall 
 mine hills or ore banks, can legally be made." 
 The plaintiffs replied, traversing the special plea. 
 
 The case was tried October 21, 1872, before Livingston, 
 P.J. 
 
 The plaintiffs gave in evidence a deed dated, October 29, 
 1845, between Clement B. Grubb of the one part and Alfred 
 Bates Grubb of the other part, conveying to A. B. Grubb, for 
 the consideration of $25,000, one equal, undivided half part of 
 the Mount Hope estate, now owned in common and equal in- 
 terest by Edward B. Grubb and the said Clement B. Grubb, 
 consisting of a furnace * * * andof the following lands 
 thereto belonging, viz. (the tracts set out in the writ), which 
 were adjudged and confirmed to Edward B. Grubb and the. 
 said Clement B. Grubb, their heirs and assigns forever, in the 
 District Court for the city and county of Lancaster, in an 
 action of partition of February term 1836, No. 44, in which 
 the said Edward B. Grubb was demandant against Henry C. 
 Grubb and Clement B. Grubb, etc. defendants, * * * 
 
 Together also with the right, title and interest, so'far as the 
 said Alfred Bates Grubb's right under this conveyance in the 
 
Grttbb v. Geubb, 229 
 
 said Mount Hope furnace is interested and concerned, of 
 them, the said Clement B. Grubb and Mary Ann Grubb, liis 
 wife, to raise, dig up, take and carry away for the use and 
 advantage of said furnace, iron ore out of and from three cer- 
 tain mine hills, etc, called by the name of "The Cornwall Ore 
 Banks," and held as a tenancy in common with the heirs of 
 Thomas B. Coleman and James Coleman, deceased, with in- 
 gress, etc, to and from the said mine hills and every part 
 thereof, for the purpose only of procuring ore for the said 
 Mount Hope furnace, but for so long and for sueh tinae only 
 as the said furnace can be carried on and be kept in opera- 
 tion by means of charcoal. To have and to hold the sjiid one 
 equal undivided moiety, eto.j with the appurtenances and with 
 the right of ore as aforesaid, unto the said Alfred Bates Grubb, 
 his heirs and assigns, etc., * * * And the said Clement 
 B. Grubb for himself, etc. does covenant, promise, grant and 
 agree to and with the said Alfred Bates Grubb, his heirs and 
 assigns, by these presents, that he, the said Clement B. Grubb, 
 and his heirs, the said one equal undivided moiety, etc., * 
 * * shall and will warrant and forever defend." 
 
 The deed was produced by the detendant upon notice from 
 the plaintiffs. 
 
 It was admitted that Edward B. Grubb, who in the recital 
 of the deed of October 29, 1845, was stated to be the owner 
 of an equal interest in the premises conveyed by that deed, 
 died intestate on the 27th of August, 1867, leaving four chil- 
 dren, the plaintiffs and a widow. 
 
 The plaintiffs here rested. 
 
 The defendant offered in evidence the record of an action of 
 partition, No. 44, to February term 1836 of the District Court 
 of Lancaster county, in which Edward B. Grubb was plaintiff 
 and Henry 0. Grubb and others defendants, and in which one 
 part of the premises demanded was " called by the name of 
 Mount Hope," consisting of the several tracts claimed in this 
 case, with others, including "the undivided sixth part of 
 three certain mine hills, situate in Lebanon township, Leb- 
 anon county,, bounded on all sides by lands of Thomas B. 
 Coleman, and known and called by the name of ' the Cornwall 
 Ore Banks,' and held as a tenancy in common with Thomas 
 B. Coleman and the heirs of James Coleman deceased; which 
 
230 Incokpokeal Heeeditaments. 
 
 said several tracts of land and ore banks constitnte the estate 
 called Mount Hope." 
 
 The offer was for the purpose of showing that, at the issuing 
 of that writ, Edward B. Grubb considered the undivided sixth 
 part of the Cornwall ore banks as part of the Mount Hope 
 estate. The court rejected the offer and sealed a bill of ex- 
 ceptions for the defendant. 
 
 The defendant then offered to prove that " the ore for the 
 use of the Mount Hope furnace has been exclusively derived 
 from the Coleman, or Cornwall ore banks, in which the 
 Mount Hope estate had an interest, from the erection of the 
 furnace to the present time, and that the value of the Mount 
 Hope' estate, without the ore banks, is about $30,000, and 
 with the rights of the owners of the estate to the ore banks, 
 worth $130,000." 
 
 On objection by the plaintiffs, the court rejected the offer 
 and sealed a bill of exceptions for the defendant. 
 
 Defendant offered, in connection with the proceedings in 
 partition, before offered, to prove that the Mount Hope estate, 
 of which the plaintiffs seek partition, was held to consist of 
 the undivided one sixth part of three certain mine hills, 
 situate in Lebanon township, Lebanon county, together with 
 the several tracts of land described in these proceedings, ever 
 since those proceedings in partition; and that Edward B. 
 Grubb, the plaintiff in those proceedings and the ancestor of 
 the present plaintiffs, and Clement B. Grubb as tenants in 
 common, as well as Edward B. Grubb, A. B. Grubb, the de- 
 fendants in these proceedings, who for twenty-two years so 
 held, so considered and operated the iron works." 
 
 The plaintiffs objected to the offer, it was rejected by the 
 court, and a bill of exceptions sealed for the defendant. 
 
 Testimony having closed, the defendant asked the court to 
 charge the jury "that plaintiffs having failed to show title in 
 themselves, they can not recover in this action." 
 
 The court charged: 
 
 "The plaintiffs in this action gave the defendant notice to 
 produce the deed which they have offered in evidence and 
 read in your hearing; it recites that the land in question, of 
 which partition is sought in this action, was at the time it was 
 made, held in common and equal interests by and between 
 
Gkubb v. Gkubb. • 231 
 
 Edward B. Grubb and Clement B. Grubb, and that by tbis 
 deed 0. B. Grubb and wife conveyed an. undivided half part 
 thereof to A. Bates Grubb, the defendant. 
 
 "It is also admitted, and in evidence before you, that Ed- 
 ward B. Grubb is dead, and that the plaintiffs are the wliole 
 of his children. The defendant has asked us to charge you 
 that plaintiffs, having failed to show title in themselves, they 
 can not recover in this action. We decline to do this, and 
 say to you that, under the evidence in the cause, plaintiffs are 
 entitled to your verdict." 
 
 The jury found for the plaintiffs. 
 
 The defendant removed the record to the Supreme Court by 
 writ of error. He assigned for error the charge of the court 
 and the rejection of his offers of evidence. 
 
 W. MacYbagh and A. Slatmaker, also C. H. T. Collis, 
 S. Hi Eeyholds, W. I)aelington and Black, for plaintiff in 
 error. 
 
 H. M. North, J. L. Eetnolds and C. B. Penrose, for de- 
 fendants in error. 
 
 Agnew, J., delivered the opinion of the court. 
 
 This was an action of partition by the heirs of Edward B. 
 Grubb, in which the defendant pleaded the general issue and 
 specially that the tract of land described in the declaration as 
 an estate known and called " Mount Hope," does not con- 
 stitute the entire "Mount Hope" estate, but a part of it only, 
 and that the undivided one sixth of three mine hills, known as 
 the Cornwall ore banks, have been owned, used and held to- 
 gether .with it, constituting one single estate. 
 
 This plea the plaintifft traversed, and raised an isstie of 
 fact, whether the undivided one sixth of the Cornwall ore 
 banks formed part of the Mount Hope estate. The plaintiffs 
 called for and gave in evidence a deed from Clement B. Grubb 
 to Alfred B. Grubb, dated 29th October, 1845, reciting that 
 the Mount Hope estate was then owned in common and equal 
 interests between Edward B. Grubb and. Clement B. Grubb. 
 This deed described the same property set forth in the decla- 
 
232 IisrcoKPOKEAL Hekeditaments. 
 
 ration in this case, and in addition thereto conveyed the fol- 
 lowing mining right, viz. : " Together also with the right, title 
 and interest, so far as the said Alfred B. Grubb's right, under 
 this conveyance, in the said Mount Hope furnace is interested 
 and concerned, of thetn, the said Clement B. Grnbb and Mary 
 Ann Grubb, his wife, to raise, dig, take and carry away, for 
 the use and advantage of said furnace, iron ore out of and 
 from three certain mine hills in Lebanon township, in Leb^ 
 anon county, bounded, etc., known and called by the name 
 of the Cornwall ore banks, and held as a tenancy in common 
 with the heirs of Thomas B. Coleman and James B. Coleman, 
 deceased, with ingress, egress and regress to and from the 
 said mine hills and every part thereof, for the purpose only of 
 procuring ore for the said Mount Hope furnace; but for so 
 long and for such time only as the said furnace can be carried 
 on and be kept in operation by means of charcoal." The 
 plaintiiis rested on this deed, it being admitted, they were the 
 children of Edward B. Grubb. The defendant, for the pur- 
 pose of showing that the one sixth of the Cornwall ore banks 
 was in fact a part of the Mount Hope estate, then offered in 
 evidence the record of a partition to February term, 1836, 
 between Edward B. Grubb and the other children of Henry 
 B. Grubb, deceased, in which the premises called Mount 
 Hope, including as a part thereof the one sixth of the mine 
 hills, called Cornwall ore banks, were awarded to Edward B. 
 and Clement B. Grubb. The court rejected this offer and ex- 
 cluded the record. The defendant tiieii proposed to prove 
 that the ore for the use of the Mount Hope furnace had been 
 exclusively derived from the Cornwall ore banks, and that 
 the Mount Hope estate, with these ore banks, was worth 
 $130,000, but without $30,000. This offer was also rejected, 
 and the court directed a verdict for the plaintiffs upon the 
 evidence. 
 
 In consequence of the course the argument took, it has 
 been necessary to state the attitude of the case thus precisely 
 in order to extricate ic from the volume of extraneous matter 
 introduced by the defendant below. I have no doubt that the 
 voluminous history of the title to the Mount Hope estate 
 contained in the paper-books, down to the deed from Clement 
 B. to Alfred B. Grubb, proves tliat it included the undivided 
 
Gkubb v. Gkubb. 233 
 
 one sixtLof the mine hills called Oornwall. But this deed 
 separated the interest of Clement B. Grubbin the mine hills 
 from the remainder of the Mount Hope estate, which passed 
 by his deed to Alfred B. Grubb. By this conveyance he 
 granted to Alfred only a special and limited right or privi- 
 lege of taking ore for tlie use of the Mount Hope furnace, 
 retaining in himself the corporeal estate in the Cornwall 
 mine hills which he did not convey. Clement and not Alfred 
 was therefore the co-tenant of Edward B. Grubb in tlie mine 
 hills. The court then was right in rejecting evidence of the 
 pre-existing state of the title and unity of the mine hills with 
 the Mount Hope estate, and in holding that under the deed of 
 184.5, Alfred B. Grubb did not hold these ore banks in com- 
 mon with the children and heirs of Edward B. Grubb. But it 
 is argued, with much apparent force, tliis ought not to be, for 
 the law will not suffer so great a wrong to be done to Alfred 
 as to cutoff the Mount Hope furnace from the mines which 
 supply it with ore, thereby sacrificing, according to the re- 
 jected offer, $100,000 in the value of the Mount Hope estate, 
 for it is worth but $30,000 without the mines, and the right 
 otherwise would be worth nothing, for his privilege is an- 
 nexed wholly^to the Mount Hope estate. If this be true, then 
 there must be a wrong somewhere under an apparent form 
 of right. But we think the error is in assuming that by the 
 partition in the mode being pursued, the mining privilege 
 of Alfred B. Grubb will be severed from his estate in the 
 Mount Hope furnace. This involves a consideration of^the 
 nature of his right, and the incidents flowing from it. 
 
 Without discussing at present the distinction between an 
 easement and aright of profit a prendre, we may say that the 
 mining right of Alfred B. Grubb is clearly a privilege an- 
 nexed by the deed of Clement B. Grubb to the interest he con- 
 veyed in the Mount Hope estate, and will pass with it as appur- 
 tenant thereto. That it is not a right of profit a prendre in 
 gross is manifested by the terms of the grant; for it is a right 
 only to take ore for the use and advantage of the Mount Hope 
 furnace, and the right of ingress, egress and regress is confined 
 to the purpose of procuring oreforthe furnace, and that so long 
 as the furnace only as the furnace shall be operated by means of 
 charcoal. That this is not a grant of the minerals themselves 
 
234 Incoepoeeal Heeeditaments. 
 
 in place is equally clear from the language of the grant, and 
 ia proved aUo by the cases of Funk v. Haldeman, 3 P: F. 
 Smith, 229; Euff v. McCauley,ld. 206; Johnstown Iron 
 Co. V. Cambria, Iron Co., 8 Casey, 241; Oruhh v. Ouilford, 
 4 Watts, 223; Brandt v. McKeever, 6 Harris, 70; Caldwell 
 V. Falton, 7 Casey ,'475; Washburn Easem., Ed. 1871, p. 10. 
 Not being either a profit aprendre in gross, or an estate in 
 the ore itsolf, it must rank in that class of easements wherein 
 a right granted out of other land is expressly afinexed to 
 land. 
 
 A right of profit aprendre, which may be held apart from 
 the possession of land, differs therein from an easement, which 
 requires a dominant tenement for its existence: Bainb. Mines, 
 Ed. 1871, p. 237. But a right of profit a prendre, if enjoyed 
 by reason of holding another estate, is regarded in the light 
 of an easement appurtenant to such other estate: Wash. 
 Easem. Ed. 1863, p. 7. And says Mr. Justice Stkong in Jlvff 
 V. McCauley, supra, 209, some modern decisions have called it 
 an easement though it was a privilege on another man's land 
 with profit; and he refers to Ritger v. Parker, 8 Cush. 145, 
 and Post v. Pearsall, 22 Wend. 425, It is immaterial, how- 
 ever, wliether we call it an easement or a right of profit a 
 prendre annexed to land. It is the same in nature, and is 
 such a right as can be annexed to other land by express grant, 
 and will pass as appurtenant to it. Even land itself, under 
 some circumstances, may be so annexed to other land as to 
 pass as an appurtenant: Mwrphy v. Camphell, 4 Barr, 480, 
 484-5; Swarts v. Swartz, Id. 353; Copev. Grant, 7 Id. 488; 
 Blaine^ 8 Lessee v. Ohavibers, 1 S. & E. 169; Pickering v. 
 Stapler, 5 S. & E. 107; Hill v. West, 4 Yeates, 142, 146; 
 Orubb V. Guilford, 4 Watts, 244. In this case the right is 
 incorporeal, not being a grant of the ore in place, but of a 
 • mere right to dig and take it away for a special use, and is 
 clearly annexed to the Mount Hope estate by express terms. 
 
 The declaration sets forth the Mount Hope estate with the 
 appurtenances, in defining the respective interests of the par- 
 ties, and the writ de partitione facienda will necessarily pur- 
 sue the same description, and this will he followed by the final 
 judgment in the same way. It follows that the mining right 
 of Alfred B. Grubb will certainly pass with his interest in the 
 
Gettbb v. Grubb. 235 
 
 Mount Hope estate, according to the above authorities, as ap- 
 purtenant to it, and consequently it must be valued and ap- 
 praised along with the Mount Hope estate. It adds to the value 
 of the land on which the furnace is erected in the same way that 
 a right to back water on other lands adds to the value of a mill, 
 or an alley or right of way appurtenant to a house in a city, 
 adds to the value of the dwelling. In pursuing the partition 
 in this mode no injustice can be done tojhe defendant, as the 
 inquisition is under the control of the court and may be set 
 aside if the jury fail to make the requisite valuation. 
 
 It is proper before concluding to say we have considered 
 the objection so strongly pressed, that plaintiifs had shown 
 no title in themselves, because Edward B. Grubb, their ances- 
 tor, was no party or privy to the deed from Clement B. to 
 Alfred B. Grubb, and could not be estopped by the recital 
 in it. But the recital that Clement B. and Edward B. 
 Grubb were co-tenants in common in equal interests, is evi- 
 dence, not on the ground of estoppel on either side, but sim- 
 ply as the admission or acknowledgment of Clement B., under 
 whom Alfred B. Grubb derives title. Being a solemn decla- 
 ration in writing of the tenancy in common, it is prima 
 facie evidence, or presumptive of the title of Edward B. 
 Grubb, and stands until it is disproved, just as in many sim- 
 ilar cases. 
 
 Implications of title are not uncommon even in ejectment, 
 where the plaintiff must recover on the strength of his own 
 title: Taylor v. Dougherty, 1 W. & S. 324; Eastings y. Wag- 
 ner, 7 Id. 216. Thus, where both parties claim under the 
 same person, neither is bound to go behind the common 
 source of title: Riddle v. Murphy, 7 S. & R. 230. A deed 
 from the commissioners to sell the lands of John Nicholson, 
 under the lien of the State, was primafacie evidence of title 
 in him: McHerwy v. McCall, 10 "Watts, 456. Seizin and a 
 descent cast, or a devise, are prima facie evidence of title: 
 West V. Pine, 4 Wash. 0. C. 691; Cook v. Nicholas, 2 W. & 
 S. 27; and more to the point is Patton v. Goldshorough, 9 
 S. & R 47, where it was held that it was competent to prove 
 the verbal declarations of Dr. Smith, that the lot for which 
 ejectment was brought was one of the four lots conveyed to 
 his daughter by his deed of May, 1783, the deed having failed 
 
236 Incokpokeal Hekeditaments. 
 
 to recite the numbers, and the original plan being mislaid, 
 on which it was siaid he had marked her name within the 
 lots. 
 
 Upon the whole case we discover no error, and 
 
 The judgment is affirmed. 
 
 1. Distinction between grant of right to mine exclusive of all others and 
 the grant of a license: Gloninger v. Franklin Co., 55 Pa. St. 9; Post 
 License; Johnstown Co. v. Cambria Co., 32 Pa. St. 241; Post License. 
 
 2. Ejectment not maintainable on behalf of incorporeal hereditament: 
 Union Co. v. Bliven Co., 3 M. R. 107. 
 
 See Easement, Licknbe. 
 
Irwin v. Davidson. 237 
 
 IitwiN EX AL. V. Davidson et al. 
 
 (3 Iredell, Eq. 311. Supreme Court of North Carolina, 1844.) 
 
 Exceptional nature of mines, timber, etc. The general rale is that a 
 court of equity takes no jurisdiction in cases of mere trespass, not even 
 by granting a temporary injunction. But there is an established excep- 
 tion in the cases of mines, timber, and the like, in which cases injunc- 
 tions will be granted to restrain the continued commission of acts by 
 which the substance of the estate is destroyed or carried off, 
 
 ' Plaintiff must support bill by ejectment. The plaintiff seeking an 
 injunction as the legal owner of property must show that he has estab- 
 lished his legal title by the judgment of a court of law, or that he is 
 prosecuting his suit at law, and that the injury which he will sustain by 
 the acts of the defendant before he can obtain judgment will be in-epar- 
 able; and, in the latter case, the court in continuing the injunction 
 must make such order as will insure a speedy determination of the suit 
 at law. 
 
 Equity will not try title. A court of equity will not try the legal rights 
 of parties to real estate. 
 
 ' Mortgagree in possession — Tender. If plaintiff be a mortgagor and the 
 defendant a mortgagee who alleges there is still a subsistiBg claim 
 against the property, though an injunction may be granted to stay a 
 wanton or improvident waste by the mortgagee in possession, yet the 
 plaintiff must, before he entitles himself lo relief, bring into court the 
 amount due or offer so to do. 
 
 Insolvency and lacbes considered in their incidental relations to bill seek- 
 ing injunction. 
 
 Costs do not follow the decree, the successful parties being blamable. 
 
 This was an appeal from an interlocntory decree of the Court 
 of Equity of Mecklenburg County, his Honor, Judge Manley, 
 presiding. 
 
 The case was as follows: 
 
 By an original bill filed August 25, 1844:, it is charged 
 that the defendant, William Davidson, was the owner of sev- 
 eral tracts of land in Mecklenburg county, and particularly 
 two tracts called, the one the Williams gold mine, and tlie 
 other the Dunn and Alexander gold mine tract; and that 
 by deed bearing date the 1st day of February, 1833, he con- 
 veyed the said lands to Joseph Curtis, James N. Hyde and 
 
 ^Emma Mine Case,! M. R. 493; Grey v. Northumberland, 7 M. R. 251; 
 Ophir Co. V. Carpenter, 4 M. R. 641; Stevens v. Williams, 5 M. R. 449. 
 
 ^Angler v. Agnew, 98 Pa. St. 587; 42 Am. R. 624; Capner v. Fleming- 
 ton Co., 7 M. R. 223. 
 
238 Injunctiok. 
 
 Harry F. Talmadge; and the said Curtis, Hyde and Talmadge 
 on tlie 4th of April, 1833, conveyed {he same to an incorpo- 
 rated gold mining company, called The President and Directors 
 of the Franklin Gold Mining Company, who entered into pos- 
 session, and opened and worked certain gold mines thereon, 
 and for that purpose erected thereon a steam engine and othei 
 machinery; and that the said William Davidson was a mem- 
 ber of the company and the manager of its mining operations. 
 The bill then states that the corporation became indebted to 
 the plaintiffs in the sum of $6,500.11, for which they obtained 
 judgment in an action at law, and sued out execution, under 
 wliich the plaintiffs becamethe purchasers of the said lands, and 
 the sheriif conveyed the same to them on the 28th January, 
 1839. The bill further proceeds thus: " Yonr orators further 
 show that, at the time of the sale, William Davidson was in 
 possession of the premises as aforesaid, and that he has kept 
 possession thereof in defiance of your orators, and used the 
 same for bis own individual purposes ever since; and that your 
 orators have not as yet taken any steps to eject the said Will- 
 iam by an action at law, hoping and believing that some ar- 
 rangement would be made, either by the said company or 
 some member thereof, to pay the debt to yonr orators, and take 
 a transfer of their right under the sale, in which expectation 
 they are disappointed, and in consequence they have now to 
 look to the property solely for indemnity." The bill then 
 states that William Davidson had then recently discovered a 
 very rich vein of gold ore on the Dunn and Alexander tract, 
 and had opened it and raised a large quantity of ore, and was 
 still doing so, and grinding it with the steam-mill, and appro- 
 priating the proceeds to his private uses; and that the said 
 Davidson was insolvent and not able to answer to the plaint- 
 iifs their damages therefor. The yjrayer is for a discovery of 
 the quantity and value of the gold made by the defendant, 
 and that an account may be taken between the parties, and a 
 decree made for the amount that may appear to be due to the 
 plaintiffs, and that the defendant may be enjoined from " us- 
 ing said property or any portion thereof, and from moving 
 away any gold ore that he has taken out of the Dunn and 
 Alexander mine as aforesaid," and for general relief. 
 
 Upon the bill and usual affidavit an injunction was awarded 
 by a judge in vacation, as prayed for. 
 
Iewin v. Davidson. 239 
 
 By a supplemental bill, filed September 3, 1841, the plaintiffs 
 charge that upon notice of the filing of their original bill and of 
 the award of an injunction, the defendant, William Davidson, 
 and his single daughter, Sarah Davidson, who was living with 
 him, took, in the name of the said Sarah, a lease for the Dunn 
 and Alexander mine for the term of two years, from one Jane 
 Dunn, who had no title whatever thereto, and then let one Da- 
 vid Glenn into possession with William Davidson, and that 
 they were working the mine on account of William Davidson, 
 as before, or on the joint account of him and his daughter. 
 
 The bill charges that the giving and accepting of the lease 
 was by collusion between all the said parties, and with the 
 view of evading the injunction that had been issued on the 
 original bill; and that neither of the said persons is able to 
 pay any recovery the plaintiffs might effect in an action at 
 law; and, therefore, that the injury will be irreparable to the 
 plaintiffs unless the operations of the defendants should be 
 stopped by an injunction, which the bill prays for accordingly. 
 
 Thereupon an injunction was granted against all the par- 
 ties, restraining them from "further operations on the mines 
 and land in the bill described, and from removing any of the 
 ore already taken out of the mine;" and there was a further 
 order that the sheriff should seize into his possession the said 
 ore, and keep the same from waste, unless the plaintiffs and 
 William Davidson should agree as to the terms on which the 
 ore should be worked up and the proceeds divided, in •which 
 case the sheriff was authorized to deliver the ore accordingly. 
 
 The defendants answered on the 30tli of August, 1844. 
 William Davidson admits that he was once the owner of the 
 lands in question. But he says that shortly previous to the 
 sale and conveyance to Curtis, Hyde and Talmadge, as men- 
 tioned in the bill, he assigned and conveyed those lands, and 
 all his other property, to Washington Morrison, as a trustee, 
 in trust to secure and pay certain debts in the deed mentioned, 
 and more particularly a very large debt which he, Davidson, 
 then owed to the Bank of Newbern, and for which the plaint- 
 iff, Irwin, was his surety; that, at the time of the execution 
 of the assignment, it was understood and informally agreed 
 by the creditors and trustee that he, Davidson, might effect 
 sales of the estate, and especially of the gold mines, as he 
 
240 iKjuNCTioiir. 
 
 might deem to the best advantage, provided that the trnstce 
 should approve the contracts, and that the purchase money 
 should be paid to the trustee, so that the same should be dnl y 
 applied to the satisfaction of the debts. He states that under 
 that authority he contracted with Curtis, Hyde and Talmadge 
 (who were associated with others with a view to become le- 
 gally incorporated as the Franklin Gold Mining Company) 
 for the sale of the land and mines in question, at the price of 
 $25,000 in cash, payable in certain installments, and the further 
 amount of $10,000 in stock of the corporation when it should 
 be recognized; that he communicated to his vendees the state 
 of the title before the sale, and that tiiey were satisfied there- 
 with, and understood that they could not get tlie legal title 
 unless the trustee should approve of the contract, and then 
 not until they should have paid to him the purchase mouey; 
 that Morrison did approve of and confirm the sale, and that 
 he received at various times payments on account of it, 
 amounting in the whole to $20,000, but that the remaining 
 $5,000 of the purchase money has never been paid and is still 
 due with the interest thereon, nor did any certificate of stock 
 ever issue to him; that the corporation, in fact, consisted of 
 the same association of persons with whom he contracted, 
 with the addition of himself; and that Curtis, Hyde and Tal- 
 madge conveyed to the corporation, witli the full understand- 
 ing that the corporation was to make the residue of the pay- 
 ments for the purchase money. The answer states that all the 
 foregoing cireumstancss were well known to the plaintiff, 
 Irwin, at the time, or shortly after, they occurred; and that, 
 at the time of the sheriff's sale, notice was distinctly and 
 publicly given that a large sum remained unpaid of the pur- 
 chase money, and that the leeal title of the premises would 
 not be conveyed until payment thereof, nor possession given 
 until the balance should be paid or realized out of the prop- 
 erty; and both of the plaintiffs fully knew all the said facts 
 and circumstances. The answer admits that this defendant 
 was a stockholder and manager of the corporation, and that 
 after the sheriff's sale the operations of the eompau}' ceased, 
 and that he has continued in possession ever siuce, for his 
 own use, and claiming the profits in discharge of the f-ums 
 due as aforesaid for the balance of the purchase money, and 
 the stock in said company which he was to have. 
 
Irwin v. Davidson. 241 
 
 The answer then states that the reason why the defendant 
 did not sooner answer was, that there had been propositions of 
 compromise pending between the parties, in which a sale to a 
 third person was projected at the price of $25,000; out of 
 which the debt of the plaintiffs on the Franklin Gold Mining 
 Company was to have been paid, leaving the residue for this 
 defendant. The defendant denies that the lease to his 
 daughter was of hia. contrivance or by his direction, to defeat 
 the injunction. 
 
 Sarah Davidson, by an answer, admits that she took the 
 lease from Jane Dunn, as charged in the bill; but denies that 
 it was a contrivance to evade the injunction, and says that slie 
 took the lease because she believed Dunn had the title to the 
 premises, and for the ionafide purpose of working the mine. 
 
 Glenn answers that he has no interest in the premises, and 
 was employed by the other defendants, as miner, to conduct 
 the work. 
 
 Upon the answers, the defendants moved to dissolve the in- 
 junction. But the court refused the motion, and ordered 
 that it should be continued to the hearing, unless one or more 
 of the defendants would give bond, with approved sureties, in 
 the penal sum of $10,000, with condition to perform such 
 decrees as should be made in the case against either of the de- 
 fendants, for the profits arising from working the mines in 
 the, pleadings mentioned. From that decree the defendants 
 appealed. 
 
 Ieedell, for the plaintiffs. 
 
 BoTDEK, for the defendants. 
 
 RUFFIN, 0. J. 
 
 The court is of opinion that the decree is erroneous. The 
 bill is not founded upon an equitable title. It propose^ to state 
 a legal title in the plaintiffs, and assumes that they could un- 
 doubtedly recover at law, if they chose to bring an ejectment. 
 The whole purpose of coming into this court, as appearing 
 upon the bill, is lo obtain an account of the ore already dug, 
 a,nd the profits made therefi'om, which tlie plaintiffs claim as 
 VOL. VII.— 16 
 
242 Injunction. 
 
 the le»al owners, and for an injunction against further work- 
 ing the mines, upon the ground that the defendants, by rea- 
 son of their insolvency, will not be able to pay the damages 
 which the plaintiffs may recover at law as legal owners. No 
 privity between the parties is stated, but the defendants are 
 mere trespassers. With respect' to the first object of the bill, 
 namely, the account, it is to be observed that we have noth- 
 ing to do at present. 
 
 For although the plaintiffs be entitled to a recovery as to 
 the profits, and also to an account and relief by a decree for 
 payment, yet it does not follow that they are entitled to have, 
 or rather to hold up an injunction, indefinitely, against a 
 person, who is in the exclusive possession of the premises. 
 The general principle is that a court of equity takes no 
 jurisdiction in cases of mere trespass, not even by granting 
 a temporary injunction. 
 
 But it is admitted that in cases of mines, timber, and the 
 like, when the trespass consists in acts by which the substance 
 of the estate is destroyed or carried off, there is an established 
 exception, and that injunctions have been granted to restrain 
 the continued commission of the trespass upon the grounds 
 that it is an injury of the nature of destructive waste, and of 
 irremediable mischief to the substance of the inheritance. 
 
 But it is plain that the jurisdiction to restrain trespasses, 
 like that to restrain nuisances, is not an original jurisdiction of 
 a court of equity, which enables this court, under the sem- 
 blance of preventing an irreparable injury to a legal estate, to 
 take a jurisdiction of deciding conclusively upon the legal 
 title itself. Therefore, in such case the plaintiff ought to 
 establish his title at law or show a good reason for not doing 
 so; and if he will not this court can not undertake, against a 
 defendant's answer, to try the questions of title and trespass 
 and nuisance: Drewry on Injunctions, 238. In Chalk v. 
 Wyatt, 3 Mer. 688, the defendant, who claimed as lord of the 
 manor, was removing earth, shingles and stones from under a 
 bank belonging to the plaintiff, which protected his land 
 against the irruptions of the sea, and Lord Eldon granted the 
 injunction in consideration of the irreparable injury the 
 plaintiff was likely to sustain; but he. said, at the same time, 
 that he wo.uld not have granted it if the plaintiff had not 
 
Ik WIN V. Davidson. 24S 
 
 established his right at law by an action which' he had pre- 
 viously brought and tried. However, it seems right to give 
 an injunction even before a trial at law to prevent such irre- 
 parable mischief as, without the interference of the court, 
 would be done before there could be a trial at law. But it is 
 manifest that except in cases where equity assumes jurisdic- 
 tion to prevent multiplicity of suits, or on other peculiar 
 ground, the relief by injunction against trespass upon a legal 
 owner ought only to be granted in aid of the defective legal 
 remedy, and not to supersede the jurisdiction of the courts of 
 law over a question purely le^al; and, therefore, that the 
 court of equity should only grant the injunction where the 
 plaintiff is endeavojing to establish his title at law, and until 
 lie should have had a reasonable time allowed for that pur- 
 pose. Hence, Mr. Drewry, page 186, observes that in such 
 eases, where, from the nature of the circumstances, very great 
 mischief may result to the defendant from the injunction being 
 held up too long, the interposition of the court must be with 
 considerable pressure that, on the part of the plaintiff, there 
 shall be no delay in going to trial; and unless some means of 
 procuring a speedy trial are insured, the court will not sustain 
 the injunction. In the present case it seems extraordinary 
 that the plaintiffs have brought no action of ejectment 
 from the time they took the sheriff's deed in January, 1839, 
 until last August, when this order was made, a period of more 
 than five years and a half, during all which time the defendant 
 has been in the exclusive possession, insisting upon an equi- 
 table right in himself and a legal title in his trustee. No 
 reason is given for this singular conduct but one in very loose 
 terms, intimating, however, sufficiently for us to understand, 
 though vaguely, that the defendant held the possession either 
 upon some agreement or understanding — perhaps not very 
 definite — that the plaintiffs' purchase and conveyance from 
 the sheriff should stand only as a security for the debt 
 the company owed them, or that the defendant should 
 pay them and take their title. Enough does not appear 
 in the bill to authorize one to say that is its statement;, 
 if it had, perhaps it would be difKcult to sustain the 
 injunction at all, as it would show an equitable interest 
 in the defendant. But unless something of that kind is 
 
244 Injunction. 
 
 to be inferred from the bill it sets forth nothing as an exctise 
 for not having sued at law; it holds forth no purpose of the 
 plaintiifs to sue at law; and the order of the court lays them 
 under no obligation thus to sue. What, then, is to be the ef- 
 ect of the decree in this snit? Either this court must, upon the 
 hearing, try the legal title and decree upon the ground that it is 
 in the plaintiffs, that the defendants surrender the possession to 
 them, and thus turn this writ into an ejectment, strictly 
 speaking, or the defendant must be left in possession of the 
 premises without being decreed to do anything, but with an 
 injunction upon him in the negative, that he shall refrain from 
 further operations on the mine and land perpetually. 
 
 Such a decree as the former has been often refused ; for this 
 court will not sustain a mere ejectment bill; and a decree of the 
 latter kind we have never known to be even asked for. It 
 would be inconsistent with first principles, for it wonld leave 
 the plaintiffs still under the necessity of going to law to 
 recover the possession, with liberty to the defendant, of course, 
 to show that they had not the legal title; and the consequence 
 might be that persons who turned out to have no right them- 
 selves would have an injunction over another person, restrain- 
 ing him perpetually from all nse of the property in his pos- 
 session. The court upon the hearing, therefore, would be 
 obliged to direct an action at law, and a trial of it within a 
 reasonable time. And in a case of this kind, where the mines 
 may be injured by suspending operations, and the steam 
 engines and other machinery be ruined by not being kept in 
 nse and repair, the plaintiffs ought to be required to speed a 
 trial, even if the application were recent after the injury 
 alleged. But, certainly, after so great a lapse of time as five 
 years and a half, it is wrong to keep up an injunction indefi- 
 nitely without an offer on the part of the plaintiffs or a requi- 
 sition on the part of the court that a suit should be brought. 
 And, thus viewing the case, the insolvency of the defendant 
 becomes immaterial. 
 
 Indeed, it is still more oppressive to a person in that situa- 
 tion, than if he were better off, to he'd over him an injunction 
 indefinitely, although the plaintiff will not, as he might, es- 
 tablish his title d. law and tarn the d<}f3ndant out of his pos- 
 session. 
 
Iewik v. Davidson. 245 
 
 The case has thus far been considered as it is made by the 
 plaintiifs themselves in the bill. The answer makes a case 
 equally strong against the plaintiffs, though upon different 
 principles. According to the answer, the plaintiffs, itig true, 
 could not maintain in action at law, as they have not the legal 
 title; but it Is in Morrison, the trustee. Therefore, the plaint- 
 iffs had a right to come here in the first instance, if.they. had 
 stated their case properly in the b'll. But, then, if they rely on 
 that disclosure in the answer, they must Bubnijt to all the other 
 consequences of that statement. Tne legal title is held by the 
 trustee for the benefit of both the defendant and jis vendees; 
 and as between the defendant and his vendees, as tlie legal 
 Litle was purposely retained as a security for the purchase 
 money, the defendant is looked on m this court as an equita- 
 ble mortgagee, and as such had a right to enter into posses- 
 sion of the premises, as the means of compelling the mort- 
 gagor to pay the debt, or as the means of raising it out of the 
 profits of the estate. If, then, the mtersst of the Franklin 
 Gold Mining Company was the subjeci of sale under execu- 
 tion, the plaintiffs bought subject to the same equity which 
 affected the company; Freeman v. Hill, 1 Dev. & Bat. Eq. 389; 
 and, indeed, the answer states that they had distinct knowledge 
 of all the circumstances. Therefore, as the defendant has the 
 superior equity to be satisfied his debt for the residue of the 
 purchase money, he may avail himself of his right as equi-. 
 table mortgagee, and of .he legtJ title sf me trustee, to retain 
 the possession unless the plaintiffs will redeem by payiwg the 
 principal, interest, and «o&*:s due him. We speak thus upon 
 the supposition that the debts secured in tne defendant's 
 assignment to Morrison have been paid, and that the trust 
 resulted to the defendan'a; which, though not positively 
 stated, we collect from the answer to be so, as the defendant 
 speaks of the unpaid balance of the purchase money being 
 his own. As to the stock in the company, which the defend- 
 ant was to have, we presume that is now nothing, as we under- 
 stand from the circumstances rather than from any particular 
 statement in the pleadings, that the company is one of the 
 many broken companies or bubbles of its day, in which the 
 stock is not worth a copper. But, for the money balance of 
 the price, certainly, the delendant has a right, as the title is 
 
246 Injunction. 
 
 situated, to look to the property as a security, and, if so, his 
 right is, to that extent, preferable to that of the plaintiffs. 
 The circumstance that the defendant became a stockholder 
 in the company makes no difference, for each stockholder has 
 a capacity, as an individual, to contract with the corporation; 
 aud it does not appear that tiie stockholders were, by the 
 charter, rendered personally liable for the debts of the corpo- 
 ration. It is true, also, that, even as mortgagee in posses- 
 sion, the defendant migiit be restrained from doing any act 
 wilfully to the destruction or detriment of the estate, as 
 felling ornamental trees, or making the mines ruinous by 
 not keeping proper props or removing rubbisii, or the like; 
 because the land is only a security to the mortgagee, and 
 is considered in this court as otherwise being the property 
 of the mortgagor. But the mortgagee is doing nothing 
 wrong in merely working the mine and thereby receiving 
 money to be applied in sinking the mortgage debt. Such is 
 the case before us, for the bill alleges no improper act in the 
 defendant in the mode of working the Tnine, but it is merely 
 founded on the allegation that the plaintiffs have the title, 
 and that the defendant is insolvent, and therefore can not 
 answer the plaintiffs' damages arising from his trespass. But 
 until the defendant's debt has been paid, his insolvency can 
 lay no foundation for stopping his rtperations, because all his 
 .earnings are immediately accounted for as credits on the debt 
 the estate owes him. So, we think, in every point of view, 
 the iiijunction should have been dissolved. As legal owners, 
 the plaintiffs ought to have brought suit at law long ago, and 
 asked only for an injunction until a trial could be had. As 
 mortgagors, or the assignees of a mortgagor, or of one treated 
 in equity as a mortgagor, they should have filed their bill to 
 redeem, and offered to pay the principal and interest due to 
 the defendant. We speak in reference to the defendant 
 William Davidson, to whose situation alone these remarks are 
 applicable. 
 
 As to the other defendants. Jane Dunn is in default in 
 not answering, and this appeal brings up no question as to 
 her. To the defendants Sarah Davidson and Glenn, it is now 
 immaterial what becomes of the injunction, as the lease to the 
 former had expired before the motion to dissolve. But they 
 
Bishop of London v. Web. 247 
 
 were entitled, for the foregoing reasons, to be let loose by a 
 dissolution of the injunction, though not with costs, we 
 think. For notwithstanding the answers, we can not shut our 
 eyes to the admitted facts, that the original bill was filed on 
 the 25th of August and between that day and the 3d of Sep- 
 tember, the defendant, Sarah Davidson, a single daughter 
 of the original defendant, and an inmate of his house, took a 
 lease for the premises; nor fail, as persons of common sense, 
 to infer therefrom that the purpose was to enable her father 
 to proceed in working the mine as he did before, only in her 
 name instead of his own; especially as William Davidson ex- 
 pressly states in his answer, that he has been in possession 
 ever, since the sheriff's sale, for his own use, as entitled to a 
 balance of the purchase money out of the land. And we can 
 not understand the equivocation on which the defendants, un- 
 der such circumstances, can bring themselves to deny tliat, in 
 taking the lease from -Dunn, they had it as an object to evade 
 the injunction. We can not doubt that it was an artiiice in 
 fraud of the process, and therefore we think that none of the 
 defendants should be entitled to costs on the dissolution of the 
 injunction. 
 
 This opinion will be certified to the court of equity, that 
 further proceedings may be had in the cause accordingly. 
 
 PeeCubiam,, 
 
 Ordered accordingly. 
 
 Bishop of London v. Web, 
 
 (1 Peere Williams, 527. High Court of Chancery, 1718.) 
 
 Lessee enjoined from converting the soil into brick. Lessee for years, 
 though without impeachment of waste, may not destroy the land to the 
 injury of the reversioner; Injunction issued to prevent the taking of 
 the clay for brick. 
 
 Bishop Bonner, in the time of Edw. VI, being then bishop 
 of London, made a long lease of some lands in Ealing, in 
 Middlesex, in which there are about twenty years yet to come, 
 
248 Injunction. 
 
 and the lease was made without impeachment of waste, and 
 the defendant, "Web, in whom, by several mesne assignments, 
 the remainder of this lease was vested, ar.tioled with some 
 brick makers, that they might dig and carry away the soil of 
 twenty acres six feet deep, part of the premises, provided 
 they did not dig above two acres in the year, and leveled 
 those acres before they d'jg up others. 
 
 The bishop of London, having the inheritance of the prem- 
 ises in right of his bishoprick, bronght a bill to enjoin the 
 digging of brick in this manor, alleging that this was carry- 
 ing away the soil, part of the inheiltance, and would in con- 
 sequence turn the pasture field into a pit or pond; that it was 
 like the case of Vane v. Lord Barnard, 2 Yern. 738, where 
 Lord Barnard, having upon his marriage settled Eaby Castle 
 (the famijy scat) upon I'mi»elf foi life without waste, re- 
 mainder to his first, e'oC, son of that marriage, afterward, 
 upon some displeasure taken against hts son, employed sever- 
 al persons to pull down the castle, upon which the court 
 granted a perpetual injunction to stop him, and ordered him 
 to amend and repair what he had pulled down; for that he 
 should not destroy the tiling itself, which he had expressly 
 settled. So in this case the defendant, in digging all the soil 
 for bricks, was actually destroying the field. 
 
 But for the defendant it was said, tliat frequent experience 
 showed that the digging of brick did not destroy the field, 
 there being many fields about the town where brick had been 
 dug, and those fields now used again for pasture; but admit- 
 ting it was waste, yet there being a power to commit waste, 
 the lessee might do it, as well as open a new mine, and carry 
 away the mineral without filling it up again. 
 
 On the other side it was replied, thnt the privilege of be- 
 ing sans waste would not, in equity, entitle one to pull down 
 a house, or even cut down trees that are for the ornament of 
 the house. 
 
 Lord Chancellor Parker. — Before the statute of Gloucester, 
 waste did lie against lessee for years, and the being without im- 
 peachment of waste seems originally intended only to mean 
 that the party should not be punishable by that statute, and 
 not to give a property in the trees or materials of an house 
 pulled down by lessee for years, sans waste; but the resolu- 
 
Wentwoeth v. Txjenee. 249 
 
 tlon having' established tlie law to be otherwise, I will not 
 shake it, much less carry it further. 
 
 But I take this to be within the reason of Lord Barnard's 
 case, where, as he was not permitted to destroy the castle to 
 the prejudice of the remainder man, so neither shall the 
 lessee, in the present case, destroy this field against the bishop 
 who has the reversion in fee, to the ruin of the inheritance of 
 the church. 
 
 Let the defendant carry off the brick he has dug, but take 
 an injunction to stop further digging. 
 
 Wentwoeth v. Tuefee. 
 
 (3 Vesey, 3. High Court of Chancery, 1795.) 
 
 ' Parties. Tenant for life having made a lease of coal mines amounting to a 
 forfeiture, can not join the remainder man in a bill for an injunction. 
 
 Tenant for life. Tenant for life, liable to waste, having sold timber can 
 not prevent the vendee from cutting it. 
 
 Tenant for life made, a lease of coal mines to the defend- 
 ant. 
 
 Mr. King, on the part of the tenant for life and the re- 
 mainder man in fee, who joined in the bill, moved for an in- 
 junction to restrain the defendant from taking coal, alleging 
 that the lease was made by mistake, and was a forfeiture of 
 the estate for life. 
 
 Lord Chancellor (Loughboeough).— I can not help tliat; 
 I can not hear a man coming to disaffirm his own lease. If 
 tenant for life liable to waste had sold timber, he could not 
 prevent the vendee from cutting it. It is collusion to bring 
 forward the remainder man. If he complains he must file a 
 bill alone. 
 
 ' Davis V. Leo, 6 Ves. 787; Lee v. Alston, 1 Ves. 78; Pigot v. Bulloch, 1 
 Ves. 479; Irwin v. Covode, 24 Pa. St. 162; Post Waste. 
 
250 Injunction. 
 
 Mitchell v. Does. 
 
 (6 Vesey, Jr., 147. High Court of Chancery, 1801.) 
 
 Trespass enjoined as well as waste. Injunction, where the defendant, 
 hriviner begun to take coal from his own land, had worked into that of 
 plaintiff. 
 
 Mr. Mansfield and Mr. Bell moved for an injunction against 
 the defendant, who, having bei^un to get coal in his own 
 ground had worked into that of the plaintiff. 
 
 Lord Chancellor (Eldon). — That is trespass ; not waste. But 
 I will grant the injunction upon the authority of a case before 
 Lord Thurlow;' a person, landlord of two closes, had let one to 
 a tenant, who took coal out of that close, and also out of the 
 other, which was not demised, and the difficulty was, whether 
 the injunction should go as to both; and it was ordered as to 
 both. 
 
 The order was made. 
 
 ^ Gkey v. The Duke of Northumberland, 
 
 (13 Vesey, Jr., 235. High Court of Chancery, 1806.) 
 
 Injunction against opening a mine may be granted when the working 
 of a mine already opened would not be restrained. 
 
 Upon certificate of the bill filed and affidavit a motion was 
 made for an injunction to restrain the defendant from open- 
 ing a mine upon the plaintiff's copyhold land; the defendant 
 being lord of the manor. 
 
 The Solicitor General (Sir Samuel Romilly), in support of 
 the motion, admitting that the court would be very unwilling 
 to interpose where a mine had been opened and was actually 
 
 ' Flamang's Case, unreported, but often cited ag the first case where tres- 
 pass as distinguished from waste, was first enjoined; Livingston v. Living- 
 ston, 6 Johns. Ch, 499. 
 
 2S. C.,i)o«* 251. 
 
Grey v. The Duke of NoETHuiiBEELAiirD. 251 
 
 in a working state, the consequence of which might be irrep- 
 arable mischief, insisted that under the circumstances appear- 
 ing by the affidavits, only preparations made to open a mine 
 by erecting sheds, etc., the court would upon the same prin- 
 ciple, to prevent irreparable miscliief, interpose; as the ques- 
 tion whether the lord can without a special, custom open 
 a mine, ought to be tried at law; and the assizes for the 
 county of Northumberland being held only once a year the 
 trial can not take place before July. 
 
 The Lord Chancellor (Erskine). — Is there any, case upon 
 the point whether the lord can without a special custom open 
 a mine? The effect might be a disinherision of the whole es- 
 tate of the copyholder. Even without an authority I conceive 
 the distinction between stopping the working of a mine al- 
 ready opened and opening, to be as it has been stated. 
 
 The Solicitor General mentioned the case of Player v. 
 Roberts, Sir Wm. Jones, 243, as an express decision upon the 
 point. 
 
 The injunction was granted. 
 
 " Grey v. The Duke op Noethumbeelaistd. 
 
 (17 Vesey Jr., 281. High Court of Chancery, 1810.) 
 
 'ITo injunction witliont speedy trial at law. Where the title ia unsettled 
 
 an injunction will not be continued wliere no means of insuring a speedy 
 
 trial' can be assured. 
 SeTerance— Rights of lord of the manor. Though the property in the 
 
 minerals be in the lord of the manor, it does not follow ihat he can 
 
 enter and take them without consent. 
 
 Upon a motion to dissolve the injunction in this cause, re- 
 straining the defendant, lord of tiie manor of Tyneinouth, 
 from digging coal upon the copyhold estate of the plaintiff, 
 the following observations fell from the court. 
 
 The Lord Chancellor (Eldon). 
 
 The bill represents the defendant as being seized in fee of 
 the manor, but that is corrected by the answer, stating him to 
 
 ' S. C., ante, 250. , '^ Irwin v. Davidson, 7 M. R. 2S7. 
 
252 Injunctiox, 
 
 be tenant for life under a marriage settlement, and therefore 
 seized of the mines if they were vested in tlie lord for his life 
 ' only. The only equity set up by the bill is that the defendant 
 not having yet established his right at law, is proceeding to dig 
 mines within the township of Backworth, which is admitted 
 to be within the manor. The bill insisting tliat the lord of 
 tlie manor has not a general riglit to tlie mines in that manor, 
 but further, that, if he has a general riglit, he is not entitled 
 to the mines of Backworth, which is alleged to be a distinct 
 townsiiip, and then stating that if the defendant commits 
 what the bill contends in effect, is trespass, tlie consequence 
 win be irreparable miscliief; and therefore the defendant is 
 not to be allowed to break the soil, and erect buildings, and 
 particularly engines, on the estate of the plaintiff, and should 
 be restrained by injunction, until an action can be tried. 
 
 In continuing the injunction, I was influenced by the fact 
 that the court has frequently interfered in the case of tres- 
 pass by a local knowledge of the means of working coal 
 mines, usually applied in that part of the coun.try, and that the 
 exercise of the right in the meantime would change, and deeply 
 affect the property, and therefore it was proper that a trial 
 should take place. On the other hand, the court is bdund to 
 attend to this consideration, that if the duke of Northumber- 
 land is seized in fee of the manor, inconceivable mischief may 
 ensue from upholding the injunction too long, as the value of 
 the opportunity of working a coal mine, if lost, may never be 
 recovered; especially if it is contiguous to other mines belong- 
 ing to the same person, and applying those considerations to 
 the case of a tenant for life, it is clear that the interposition of 
 the court must be with a considerable pressure, that on the 
 part of the plaintiff there shall be no delay in going to trial. 
 This principle was acknowledged in Lord Byron's case and 
 many others. 
 
 I have looked at the report of the case in the Court of King's 
 Bench in the year 1808, which decides nothing as to the right 
 put in issue here; but from which I collect that the lord of a 
 manor may be in the same situation with respect to mines as 
 with respect to trees; that is, the property may be in him, 
 but it d les not follow that he can enter and take it without 
 consent, which must be acquired by purchase or otherwise. 
 
CowPER V. Baker. 253 
 
 It was understood both by Lord Erskine and by me, that the 
 action which had been commenced wonld try the .question, 
 hut this unfortunate circumstance occurred :^the pleader took 
 the duke of N'orthumberland to be tenant in fee; as he is rep- 
 resented by the bill, and has averred him to be so in every 
 plea. If the merits have not been tried from the fault of the 
 plaintiff in equity, that presents a strong case for dissolving 
 the injunction, and unless some means of procuring a speedy 
 trial can be insured, I will dissolve it. 
 
 Earl Cowper et al. v. Baker et al. 
 
 (17 Vesey, Jr:, 128. High Court of Chancery, 1810.) 
 
 'EemoTing stones from the sea-bottom enjoined. Upon a bill, praying 
 for an account and for an injunction to restrain a trespass in the nature of 
 waste, brought by the lord of the manor and his lessees against the 
 defendant "for taking stones, having a peculiar value, from the bottom 
 of the sea, within the limits of the manor, the Lord Chancellor granted 
 the injunction until answer or further order. 
 
 The bill, filed by Lord Cowper as lord of the manor of 
 Swacliffe, and his lessees, stated the title of Lord Cowper 
 under a settlement in 1805, as tenant for life, without im- 
 peachment of waste, subject to a trust term, with power of 
 leasing; that the manor extends along the seaside and into 
 the sea as far as a buoy as big as a barrel can be seen ; and 
 that certain stones or argillaceous productions, called noddles 
 of clay, are necessary materials for making a terras or cement, 
 invented by James Parker, for which he had obtained a patent; 
 that such stones are very scarce and valuable, and are pro- 
 duced upon and adhere to rocks within the limits of the 
 manor, as well between high and low water mark as in the sea 
 below low water mark; that they are, by the violence of the 
 sea, separated from the rocks, and are found lying at the bottom 
 of the sea and on the shore within the limits of the manor. 
 
 The bill further stated, that the patent will expire on the 
 28th of this month; that the plaintiffs, Charles Pearson, and 
 his son, had taken a lease of the manor for one year; and the 
 
 ' Injunction to preserve minerals held in solution : Thomas v. Jones, 1 Y. 
 ,feC. Ch. 510,. 
 
254 Injunction. 
 
 defendants, Baker and Hill, have dredged tip and otherwise 
 collected, within the liinits of the manor, large quantities of 
 the stones; that the lords of the manor from time whereof the 
 memory of man runneth not to the contrary have used the right 
 of wreck, and also the sole and exclusive right of making oys- 
 ter beds and taking oysters within the same limits. The bill 
 then suggesting pretenses by the defendants, that they have 
 taken small quantities of these stones from the manor, with 
 other stones from other parts, and can not distinguish them, and 
 charging that large quantities were taken from the manor, 
 and that the defendants threaten to remove them so as to 
 prevent the plaintiffs, the Pearsons, from ascertaining the 
 amount, that they will be deprived of the benefit of their 
 agreement and sustain irreparable damage, and that the 
 plaintiff, Earl Cowper, will be prevented from demising the 
 manor at so high a rent as he otherwise might, prayed an 
 account of all stones or other argillaceous productions, col- 
 lected and carried away from the sea or shore within the limits 
 aforesaid since the 25th of March last, and an injunction. 
 
 Sir Samuel Eomillt and Mr. Gabratt, moved for the in- 
 junction, upon affidavits, referring to the late cases, extend- 
 ing this jurisdiction to trespass, upon the ground of irre- 
 mediable mischief in the nature of waste. 
 
 The Lord Chancellor Er>D0N made the order, granting the 
 injunction until answer or further order. 
 
 Thomas v. Oakley. 
 
 (18 Vesey, 184. High Court of Chancery, 1811.) 
 
 ' Jurisdiction— Waste and trespass. The juriBdiction of chancery to re- 
 gtrainby injaaction aad to compel an account, in cases of the destrnction 
 or taking away of the substance of the estate, is no longer restricted to 
 waste, but is extended to trespass. 
 
 Abnse of privilege. Injunction issued to restrain the unlimited taking of 
 stone by defendant, who had a restricted right to take stone for certain 
 uses in connection with certain lands. 
 
 ' Chapman v. Toy Long, 1 M. R. 497. 
 
Thomas v. Oakley. 255 
 
 ' Quarries. If chancery will restrain by injunction, trespass committed in 
 mining ore or coal, it will give the same relief against quarrying- stone. 
 No distinction on the question of comparative value can be made. 
 
 It is the practice to pray an accounting' with the injunction, without 
 separate suit at law for damages. 
 
 The case stated ''by this bill was, that the plaintiff was 
 seized in fee simple of an estate, in which there was a stone 
 quarry; and the defendant, having a contiguous estate, with a 
 right to enter the plaintiff's quarry and take stone for build- 
 ing and other purposes, confined to a part of his estate called 
 Newton farm, liad taken stone to a considerable amount for 
 the purpose of using it upon the other parts of his estate, 
 praying an injunction and account. 
 
 To this bill the defendant demurred. 
 
 Mr. Haet and Mr. Hobne, in support of the demurrer, re- 
 lied on the distinction between waste and trespass, this being 
 a mere trespass, and the account too trifling to change the 
 jurisdiction. 
 
 Mr. Benton, for the plaintiff. The course of modern au- 
 thority is to afford assistance in these cases of coal mines, tim- 
 ber, etc., to prevent irremediable mischief, an injury wliich 
 damages could not'compensate. In Mltohell v. Dors, 6 Vesey, 
 147, and miiiy other cases, your lordship, following Lord 
 Tliurlow, gave relief, giving the injunction, where an action 
 of trespass might be maintained; and the account follows the 
 injunction; to prevent multiplicity of suits. 
 
 The Lord Chan cellor Eldon. 
 
 The case has this specialty; the bill admits the defendant's 
 right of entry into this quarry, and of taking stones for all 
 the purposes of Newton farm, though, if he takes for any 
 ot'.ier purpose, undoubtedly an action would lie; but is there 
 any distinction between this case and that of a coal mine? Is 
 not this taking away the very substance of Ijhe estate just 
 as much as in the case of a coal mine? After the decisions that 
 have taken place, this demurrer can not be maintained. The 
 plaintiff represents himself to be seized as tenant in fee of an 
 
 ^Purcell V. Nash, 2 Jones, 116. 
 
256 Injunction. 
 
 estate, in wliich there is a stone quarry that is parcel of the 
 estate; He then states, whicli upon this occasion I must take 
 to be true, that the defendant, having an estate in his neigh- 
 borhood, consisting of Newton farm, among other lands, as 
 owner of that farm has a right to enter into the quarry for the 
 purpose of taking stone, as far as he has occasion for building 
 and other purposes upon that farm ; but the plaintiff repre- 
 sents that the defendant has taken stone, for the purpose of 
 application, not upon N^ewton farm only, but also upon his 
 other estates, and to a very considerable amount. Tiiat is 
 trespass -beyond all doubt, and not waste; as there is no such 
 privity between the parties as would make it waste. His 
 entry for the purpose of taking stone with reference to New- 
 ton farm is lawful; but if under color of that right he takes 
 stone for the enjoyment, not of his farm only, but his other 
 estates, his entry to that extent is unlawful, and his act a tres- 
 pass; and, if it is settled that the court will interfere by way 
 of injunction and account, this demurrer can not prevail. 
 
 The distinction long ago established was, that if a person 
 still living committed a trespass by cutting timber, or taking 
 lead ore, or coal, this court would not interfere; but gave the 
 discovery; and then an action might be brought for the value 
 discovered; but the trespass dying with the person, if he died, 
 the court said, this being property, there must be an account 
 of the value, though the law gave no remedy. In that in- 
 stance therefore the account was given, where an injunction 
 was not wanted.' Throughout Lord Hardwicke's time, and 
 down to that of Lord Thurlow, the distinction between waste 
 and trespass was acknowledged; and I have frequently alluded 
 to the case upon which Lord Thurlow first hesitated;' a person 
 having a close demised to him began to get coal there, but 
 continued to work under the contiguous close, belonging to 
 another person; and it was held that the former, as waste, 
 would be restrained; but as to the close which was not de- 
 mised to him, it was a mere trespass, and the court did not 
 interfere; but I take it, that Lord Thurlow changed his opin- 
 ion upon that; holding, that if the defendant was taking the 
 substance of the inheritance, the liberty of bringing an action 
 was not all the relief to which, in equity, lie was entitled. The 
 
 ' Flamang's Case, (see 7 M. B. 250. 
 
Field v. Beaumont. 257 
 
 interference of the court is to prevent your removing that 
 which is his estate. Upon that principle Lord Thurlow: 
 granted the injunction as to both. That has since been re- 
 peatedly followed, and whether it was trespass under the color 
 of another's right actually existing or not. 
 
 If this protection would be granted in the case of timber, 
 coals, or lead ore, why is it not equally to be applied to a quarry ? 
 The comparative value can not be considered. The present 
 established course is to sustain a bill for the purpose of injunc- 
 tion, connecting it with the account in both cases, and not to 
 put the plaintiff to come here for an injunction, and to go to 
 law for damages. 
 
 The demurrer was overruled. 
 
 Field v. Beaumont et ux. 
 
 (1 Swanston, 204. High Court of Chancery, 1818.) 
 
 Identity of mines sliown by parol. Where there is a grant of mines 
 under farms the identity of the mines is a question of fact, and may be 
 decided by evidence dehors the deed. 
 
 ' Injunction prerented by laclies. To stop the working of a coal mine is 
 a serious injury, and when it has been allowed to be worked for eight 
 years, the expenditure is an equitable ground to prevent the hasty in- 
 terference of the court. 
 
 Injunction sought by party refusing to produce documents. Whether, 
 after a verdict at law in trespass, the court would grant an injunction 
 in favor of parties who, at the trial, had refused to produce documents 
 essential to a just decision, doubted. 
 
 By deeds of lease and release, dated the 30th of July, 1790, 
 Sir Tho. Blackett granted to John Jarratt, Richard Hird and 
 others in fee, all the coal mines in Cold Harbor farm, and 
 also " in the several lands or grounds then in the severail 
 tenures or occupations of widow Kellett and son, Abraham 
 Walker " and other persons named, tenants of his estate at 
 "Wibsey. 
 
 • Clarke v. Hart, 6 H. L. Cas., 655; 19 Beav. 349: 7 De G. M. & G. 232; 
 Anderson v. Simpson, 21 Iowa, 405; Post License; Parrot v. Palmer, 3 
 M. & K. 632; Real del Monte Co., v. Pond Co., 7 M. R. 452. 
 
 VOL. VII.— 17 
 
258 Injunction. 
 
 At the date of the release none of the farms were in the 
 occupation of persons corresponding to the description of the 
 widow Kellett and son, but one had been lield by a family of 
 the name of Kellett since 1742, and was then in the posses- 
 sion of Joshua Kellett, the son of a widow Kellett, who had 
 occupied it jointly with the brother of her husband, till her 
 death in 1788. 
 
 In 1808 the grantees caused pits to be sunk, and a steam 
 engine to be erected on the farm so occupied, and proceeding 
 to obtain coal, continued to work the mines without interrup- 
 tion till 1816, when the defendants, devisees of Sir Thomas 
 Blackett, commenced an action of trespass against the plaint- 
 iflp, the agent of the grantees, in respect of such mining. 
 Previously to the trial of the action the plaintiff gave notice to 
 the defendants to produce certain documents tending to prove 
 that the farm in question passed by the description of lands 
 in the occupation of the widow Kellett and son, but they were 
 not produced, and the defendants obtained a verdict. On the 
 23d of January last, the Court of King's Bench, in conse- 
 quence of the rejection at the trial of evidence tendered by 
 the plaintiff, ordered a new trial {Beaumont and wife v. 
 Field, 1 Barn. & Aid. 247), which was expected to take place 
 at the ensuing York assizes, the commission day being the 
 7th of March. 
 
 The bill iiled on the 9th of February last, stating these 
 facts an 1 that the farm in question was described in the rent 
 books and other documents relating to the estate of Sir 
 Thomas Blackett, as in the occupation of widow Kellett, and 
 charging that the defendants had in their custody or power 
 divers deeds, leases, rent books and other documents, by which 
 it would appear that they ought not to maintain their action 
 against the plaintiff, prayed an account and production of 
 such deeds, etc., and an injunction. 
 
 The common injunction having been obtained for want of 
 answer, the plaintiff on the 28th of February moved before 
 the vice-chancellor that it might be extended to stay trial, and 
 his honor having refused the order {Field v. Jieaumont et 
 ux., 3 Madd. 102), the motion was now made before the lord 
 chancellor. 
 
Field v. Beatimont. 259 
 
 Mr. Bell, Mr. Heald and Mr. Buck, in support of the 
 motion. 
 
 The question is, whether the court will not, on the trial of 
 a right, secure to parties applying in conformity to its rules, 
 the production of evidence necessary to a just decision. The 
 importance of these documents is obvious; to ascertain the 
 tenants of particular lands at a given time, the proper evi- 
 dence is the steward's books. Is it consistent with justice 
 that the defendants, profiting by their refusal to produce the 
 documents, which can not be withheld without a violation of 
 the moral duty of a landlord toward his tenant, shall compel 
 us to a trial of the question with imperfect proof? 
 
 'No delay is imputable to the plaintiff. Before the. first 
 trial he had no reason to apprehend that the defendants would 
 refuse to assist the justice of the case by the production of 
 the evidence which he required. After the verdict it would 
 have been vain to proceed in this court for compelling the 
 production, till the court of law had granted a new trial. 
 Whitmore v. Thornton, 3 Price, 231: "Where there is no 
 trial to be had,- there can be no discovery to be sought; and 
 if a verdict had passed sim/plieiter- without more, a bill then 
 filed for a discovery might be demurred to, for there could be 
 no discovery any more than as to a matter not at issue." 
 Per Richards, Baron, p. 248. The rule for a new trial was 
 not made absolute till the 21st of January, and on the 9th 
 of February the bill is filed. Even if delay had been prac- 
 ticed, the court would grant the order on terms. No evil can 
 ensue from the postponement of the trial till the next assizes. 
 
 The application to extend the injunction to stay trial is al- 
 ways successful, unless opposed by special circumstances, and 
 the affidavit in support of the motion may be filed so late as 
 the previous day: Jones v. , 8 Ves. 46. 
 
 Sir Samuel Romillt, Mr. Haet and Mr. "Wingfibld, against 
 the motion. 
 
 After the delay practiced by the plaintiff the court will not 
 afford the extraordinary aid solicited. 
 
 In July, 1817, notice was given for the production of these 
 documents; the plaintiff, therefore, insisting on them as ma- 
 
260 Injunction. 
 
 terial, must admit that he was at that time, at least (how 
 much earlier appears not), apprised of their materiality, but 
 he has since taken no means to obtain them; nor is it even 
 proved that at the trial they were called for by his counsel. 
 Can he now, on an application, within a few days of the 
 assizes,' be permitted to postpone the second trial upon the 
 sole ground of the want of this evidence? 
 
 The court wonld hesitate to grant that indulgence, even had 
 the plaintiff recently obtained a knowledge of the existence of 
 these papers; but after a delay of nearly two years must, with- 
 out hesitation, refuse it. 
 
 It is not easy to understand how these documents can be 
 material, at least the circumstances which they are stated to 
 prove must, if true, be capable of other proof; and no neces- 
 sity can arise for the admission of this evidence, in order to the 
 attainment of the justice of the case. 
 
 The authority cited, Jones v. , 8 Ves. 46, refers only 
 
 to the common affidavit, that the party believes the discovery 
 to be material, and is not applicable to affidavits of special 
 circumstances. 
 
 The LoED Chancelloe. 
 
 As I understand this case, in the year 1790 a grant was 
 made of coal mines under different farms described in the 
 deed, and among the rest, of mines under a farm described as 
 in the occupation of the widow Kellett and son. 
 
 The question, what are the mines under lands so occupied? 
 is a mere question of fact, and may undoubtedly be decided 
 by evidence dehors the deed. It is said that before 1790, the 
 widow Kellett and her son occupied the lands, to the minerals 
 under which this contested claim is made, occupying them by 
 virtue of one demise, and on payment of one entire rent; and 
 that fact is alleged to be material to establish the right for 
 which the plaintiff contends. 
 
 This at least is clear, that the grantees, whose agent the 
 plaintiff is, had actually worked the mines on these premises 
 from 1808 till 1816, when the action of trespass was com- 
 menced; and that that action, not commenced till then, was 
 
 ' Blacoe v. Wilkinson, 13 Ves. 454. 
 
Field v. Beaumont. 201 
 
 not brought to trial till 1817. On the effect of these circum- 
 stances of time, it was for the jury to decide; but it has been 
 very correctly stated at the bar, that if the defendants had 
 tiled a bill to stay the working of these mines, this court, now 
 in the habit of granting injunctions iu cases of trespass (see 
 19 Yes. 146, 147; Orey v. The Duke of RorthiimherUnd, 
 17 Yes. 281, and cases there cited; Stevens v. Beekman, 1 
 Johns. Ch. E. 318) as well as of waste, must have refused an 
 injunction to parties who liad permitted these operations to 
 proceed from 1808 till 1816, without interruption. To stop 
 the working of a coal mine is a serious injury; and the ex- 
 penditure incurred in the course 6f eight years, would raise 
 an equitable ground to prevent the hasty interference of the 
 court. The defendants would have been directed iirst to bring 
 an action, and to return when the result of the trial had en- 
 abled the court better to deal with the application. In 1817 
 they proceed to trial; and clear as it is that this disaovery 
 IS extremely material, the plaintiff, instead of adopting from 
 the beginning the usual mode of compelling a discovery here, 
 gives notice to the plaintiffs at law to produce the rent rolls 
 and other documents, but the construction of the affidavits, 
 though critically correct, is strained, by which they are un- 
 derstood as amounting to a statement tiiat the production 
 was not required at the trial. It is true that the fact might 
 probably be established to a certain extent by the evidence of 
 witnesses, for many persons must be still living who knew 
 the nature of the occupation of these premises; and yet it may 
 be equally true that no other explanation or testimony would 
 be as satisfactory as the evidence in the possession of the 
 landlord. No bill for a discovery, however, was filed; and 
 while it must have been known that the notice to' produce 
 the documents was nugatory, in the event of non -production 
 at the trial, unless the plaintiff was prepared with parol evi- 
 dence of their contents, no attempt was made to give such evi- 
 dence, nor did the plaintiff' obtain a subpmna duces tecum, 
 which, according to the present determinations at law, it would 
 not be discreet to disobey; for though the party may in court 
 object to produce the documents, yet, if the objection is over- 
 ruled, the court will compel the production. (As to the ef- 
 fect of negligence in such cases, see Smith V. Lowry, 1 Johns. 
 
262 Injunction. 
 
 Ch. R. 320; Barker v. ElJeins, Id. 465; Dodge v. Strong, '2 
 Id. 228. And particularly Mc Vickar v. Wolcott, 4 Johns. 
 510. But see also Spencer v. Wilson, 4 Muii. R. 130, which 
 looks the other way. And Preston v. Gressorrv^s Distributees, 
 Id. 110, is another exception to the general rule.) 
 
 If the defendants had come to this court immediately after 
 the trial, stating that the impediment which previously ex- 
 isted was removed by the verdict they had obtained, and pray- 
 ing an injunction against repeated trespass, it may be worth their 
 consideration, whether if it had been satisfactorily established 
 that they would not at the trial make a production necessary to 
 the fairness of the decision, this court would havegranted an in- 
 junction. It is another question what I am to do with the 
 present bill. On the motion for anew trial, lean not think 
 that the Court of King's Bench would be influenced by the 
 production or non-production of the documents; they would 
 have said only that other measures should have been adopted to 
 enforce production, but on the ground that the judge rejected 
 evidence which he ought to have received and laid before the 
 jury, that court granted a new trial. Now, without referring 
 to the case in the Exchequer, Whitmore v. Tfiornton, 3 Price, 
 231, I entertain no doubt that after the trial, with proper 
 and apt charges, a bill might have been filed in this court to 
 compel the production of these documents, to which a de- 
 murrer would not have been allowed. That proposition in no 
 degree impeaches the judgment of the Court of Excheque , 
 that a bill stating only that a verdict has passed against the 
 plaintiff, and praying a discovery without imputing a viola- 
 tion of the duties arising from the relation between the par- 
 ties could not be sustained. I do not mean to dispute that 
 doctrine, but considering the mutual obligations of landlord 
 and tenant this is a different case, and a bill might have been 
 sustained in this court for relief and for discovery. 
 
 Then it is said that pending the application for a new trial 
 no one could have advised the defendant at law to file a bill. 
 Now, in my opinion, the attempt to obtain a new trial, after 
 being foiled in compelling the production of these documents 
 which he believed to be necessary evidence, was a reason for 
 filing a bill; and I think there was negligence in this respect, 
 though I am far from imputing blame to any one. The Court 
 
Capner v. The Flemingtojt Mining Co. 263 
 
 of King's Bench, from the state of their business, did not give 
 judgment on the motion for a new trial till the 21st of 
 January, and during all that time no bill for a discovery was 
 filed. 
 
 Having obtained the judgment of that court the defendant 
 at law then files the bill, and within a few days of the trial 
 makes this application. My opinion is that the vice-chancel- 
 lor was right. In strictness, I can not stay the trial because 
 the defendants withhold this evidence, but it will be for them 
 to consider whether, should they, refusing the production, ob- 
 tain another verdict, and then apply here for an injunction 
 against future trespasses, it may not be a subject of discussion 
 in this court, what is to be the effect of a verdict in a mere 
 action of trespass on an equitable right, after such length of 
 possession. 
 
 Motion refused with costs, the defenda,nts undertaking to 
 produce the documents on oath at the trial. 
 
 Capnee v. The President and Directors of the 
 
 Flemington Mining Co. 
 
 ♦ 
 
 '(3 New Jersey, Equity, 467. Court of Chancery, 1836.) 
 
 ■ Waste on mortgag^ed mine. Capner sold his farm to a mining company 
 by articles in which the payment of certain installments of purchase 
 money was secured by a clause to the effect that he should have all the 
 remedies of a mortgagee. In other clauses the fact of the sale being for 
 mining purposes appeared. The vendor sued to foreclose, and prayed 
 for an injunction to stay waste, and on appeal it was held, that the in- 
 junction should have been refused so far as it aifected the cutting of 
 necessary timber and the digging of shafts, etc., for mining purposes, 
 such acts not being waste, but was proper to prevent the removal of 
 buildings an4 fences, etc., done to injure and harass the complainant. 
 
 Jurat omitted by mistake. If an injunction bill has been actually sworn 
 to, the injunction will nol^ be dismissed because the master has omitted 
 to sign the jurat. 
 
 ^ Notice of application—' Discretion. The operations of large mining com- 
 panies should not be arrested by injunction without notice, except in 
 
 'Trwin v. Daviclson, 7 M. R. 237. 
 
 'Golden Gate Co. v. Superior Court, 2 West C. R. 736; Perkins v. Col- 
 lins, 3 N. J. Eq. 482. 
 ^miler V. Collins, 63 Cal. 235. 
 
264 Injunction. 
 
 very plain cases, or where there is a pressing necessity for immediate 
 action. There is a discretion which the court must exercise in every case. 
 Mortgagor may continue mining. A charge of waste, whereby the mort- 
 gage security is diminished, is always a sufficient ground for an injunc- 
 tion a« between mortgagor and mortgagee; bub when the property was 
 purchaaed and is occupied for mming purposes, use of the property in 
 mining operations can not be considered waste. 
 
 Bill bj a mortgagee against the mortgagors, to restrain the 
 TOmmissiou of waste. On filing the bill an injunction was is- 
 sued by order of a master, made ex parte, and without notice 
 to the defendants. The defendants, before answer, moved to 
 dissolve the injunction as irregular. The cause was heard on 
 the motion to dissolve. 
 
 Saxton, for defendants in support of tlie motion. 
 
 WuETS, contra. 
 
 Chancellor Yeoom. 
 
 In eighteen hundred and thirty-four, Oapner sold his 
 farm to the Mining Company for forty thousand dollars, 
 payable in installments. Thirteen thousand five hundred 
 dollars of this has been paid, in money and stock. An 
 installment of eight thousand five hundred dollars fell due 
 on the first of March, eighteen hundred and thirty-six, on the 
 payment of which, and securing the balance by bond and 
 mortgage on the premises, full possession of the wliole prop- 
 erty was to be delivered to the company. Previous to this, 
 Capner was to have the use of the farm for agricultural pur- 
 poses, while the company were at liberty to carry on their 
 mining operations, open shafts and dig for pre, etc., as they 
 might find advantageous. It was stipulated in the agreement 
 between the parties that in case the payment of eij^lit thou- 
 sand five hundred dollars, due on the first of March last, should 
 not be made, that Capner, besides other remedies against the 
 company, should, by reason of the default, have all the reme- 
 dies of a mortgagee against a mortgagor, in this State, for the 
 mortgaged premises, upon non-payment according to the con- 
 ditions of the mortgage, so far as they can be applied to enforce 
 the payment thereof. The payment not being made, Capner 
 filed a bill to foreclose all the rights and equities of the com- 
 
' Capnek v. TflE Flemington Mining Co. 265 
 
 pany, aud for possession, and also for an injunction to prevent 
 the commission of waste. Tlie injunction was ordered by a 
 master, ex parie, and it is now moved to set it aside as irreg- 
 ular on several grounds. 
 
 1. The first is, that the bill was not properly verified. 
 The affidavit was drawn out at the foot of the bill in the 
 
 usual way, and signed by the complainant, but the jurat was 
 not signed by the master. Such an omission shonld not 
 vitiate the injunction if the bill was actually sworn to, as was 
 the fact. It was an omission of the court, but one which 
 could not affect the interests of the defendants. Perjury could 
 have been assigned upon the affidavit if the facts were untrue. 
 
 2. The injunction, it is contended, was granted without 
 notice, and therefore irregular. 
 
 There is no general rule on this subject, but the operations 
 of large companies should not be suddenly stopped witliout an 
 opportunity of being heard; and it has been usual for the 
 court to cause notice to be given, except in very plain cases, 
 or where there was a pressing necessity for immediate action. 
 There is a discretion which the court must exercise in every 
 case. If the operation of this injunction had been entirely 
 to prevent the company from working their mines, 1 'should 
 have been inclined to set it aside, on the ground that there 
 was not a ease of pressing necessity, and that the defendants 
 were entitled to notice. But the injunction does not go that 
 length. It does not prevent the defendants from working in 
 the shafts already opened, and can not,' therefore, be accom- 
 panied by any lasting or wide spread injury, though it may 
 occasion temporary embarrassment or inconvenience. I do 
 not think proper to disturb the injunction on this ground, 
 
 3. It is contended that there is no equity in the bill to 
 sustain the injunction. 
 
 There is waste charged, so as to diminish the complainant's 
 security, and that is always a sufficient ground for an injunc- 
 tion as between mortgagor and mortgagee. I am of opinion, 
 however, that there has been a misapprehension as to what 
 constitutes waste under the facts of this case, and the peculiar 
 situation of these parties. 
 
 The property was purchased and is occupied for mining pur- 
 poses. This is evident from the price to be given, and all the 
 
266 Injunction. 
 
 covenants. So far as is necessary or proper for these purposes, 
 the company are in possession by permission not only, but of 
 right, and any use of the property in mining operations can 
 not be considered as waste. It is not charged that they are 
 usino: it ignorantly, or in such way as intentionally to injure 
 the complainant without any benefit to themselves; nor is It 
 pretended that the mines are wholly unproductive, or that the 
 property is really valueless, except for agricultural purposes, 
 and that therefore, if the company is permitted to go on ad 
 Uiitum, excavating ^nd searching for ore, that the property 
 will be entirely lost to the complainant as a farm; the injunc- 
 tion does not rest on either of these grounds, and I am at a 
 loss to conceive how the company can commit waste and 
 spoil by using the property in the mode agreed on by the 
 contract. Suppose the eight thousand five Irundred dollars 
 had been paid in March, and Oapner had taken a mortgage 
 for the balance of the purchase money, and it was not paid at 
 the time stipulated, he might have filed a bill to foreclose 
 the equity of redemption, but he could not have prevented 
 the company from using the property in their mining opera- 
 tions. Coming' in here at this time as a mortgagee, he has 
 no better rights. 
 
 The case of Den v. Kinney, 2 South. 552, is analogous to 
 the present. The lessor of the plaintiff had covenanted to 
 convey to the defendant a furnace property and put him in 
 possession. The purchase money not being paid an ejectment 
 was brought and an application was made for a rule against 
 the defendant to stay waste. It appeared that several hundred 
 cords of wood had been cut, but the court said that as the use 
 of the wood was for the common purposes of the estate it was 
 not waste; that the land being annexed to a furnace it was 
 only using it in the ordinary mode; and the rule was refused. 
 
 I am of opinion that in tliis case the injunction should be 
 modified; that so far as it restrains the company from opening 
 new shafts and digging for metals or minerals at any other 
 point or place than where they were engaged at the time of 
 tiling the bill, and spreading over the prennses the earth ex- 
 cavated, and removing or carrying away from the premises 
 any ores, minerals or metals, it should be set aside. So far 
 as it restrains the company from moving or carrying away 
 
Bkacken v. Pkeston. 267 
 
 any fixtures, buildings, fences, or other erections, it should be 
 retained. The other part of the injunction, which prohibits 
 the defendants from cutting down or injuring any timber or 
 trees, or pulling down any fences, or interfering with and dis- 
 turbing the complainant and his agents while engaged in their 
 lawful avocations and business in and about the said premi- 
 ses, and obstructing their peaceable ingress and egress to and 
 from thence, must be so modified as to apply only to acts out 
 of the ordinary course of the lawful business of the company, 
 and done for the purpose of harassing and injuring the com- 
 plainant. 
 
 Let the injunction be modified so as to conform with these 
 directions. 
 
 BEACKElSr ET AL, V. PbESTON ET AL. 
 (1 Pinney, 584. Supreme Court of Wisconsin, 1845.) 
 
 Eqnity jnrisdiction to restrain trespass. An injunction w\] be granted 
 to restrain a trespass in order to quiet the possession, or when there is 
 danger of irreparable mischief, or where the value of the inheritance 
 is put in jeopardy by a continuance of the mischief, but in ordinary tres- 
 passes, or where the remedy at law is adequate, equity refuses to interfere. 
 
 Trespass in digg'mg or mining' on tlie land of another is wi bin the 
 cognizance of a court of equity when committed by a mere wrong-doer, 
 or where a party exceeds a linjited authority. 
 
 ' Surrender of possession not decreed. To justify the interference of 
 equity, the complainant must in general be in possession or have'estab- 
 lished his right at law, or brought an action to recover possession, or his 
 exclusive right must be admitted by defendant; but the court will, in 
 all such cases, proceed with great caution, and although a defendant 
 does not show a legal right to possession, yet as a court of equity has no 
 direct jurisdiction to try title, exc ;pt in certain peculiar cases, it will 
 not decree that the defendant surrender possession. 
 
 Disseized plaintiff. No injunction will be allowed in cases of trespass 
 with an account, where the complainants, being' dissefzed, can not 
 maintain an action for mesne profits. 
 
 measure of daniag'es in trespass by plaintiff ont of possession. A person 
 disseized of a mine can not maintain trespass except for the entry and 
 ouster in which case damages would be restricted to the entry and ouster; 
 but damages for a continuance of a trespass can be recovered only after 
 the party disseized has regained possession. 
 
 * Brennan v. Gaston, 7 M. R. 426. 
 
268 Injunction". 
 
 ' Account of ore dug — Possession. Where a bill prays an account of ore 
 dug on complainant's lands, a court cf pquity will decree- it in a proper 
 case, but the complainant must show that he is in possession. 
 
 Requisites of bill — Insufficient case for interlocutory writ. Where 
 a bill was brought alleging a continuing trespass by mining cop- 
 per ore, showing that complainants had been disseized, and praying 
 an injunction pending an action for forcible entry and detainer, and for 
 an account of mineral exseoted, i nd for decree that defendants surrender 
 possession and the complainants be quieted in their title; and it ap- 
 peared that the defendants were in possession under claim of right; 
 Held, that the bill did not state a[case entitling them to relief; that 
 ejectment was the proper i-emedy with a preliminary injunction on a 
 proper bill showing the pendency of such action to try title, and that 
 after recovery therein the plaintifi's could obtain satisfaction by an ac- 
 tion for mesne profits. 
 
 'Ejectment maintainable on receivei-'s receipt. In actions between 
 individuals the receipt of the receiver of a land ofBce is, under the stat- 
 ute, suflBcient legal evidence of title, though as between the holder of 
 it and the government, the legal title still remains in the United Slates. 
 
 Appeal from the District Court of Milwaukee County. 
 
 The complainants, Charles Bracken, David Irvin, Amelia 
 Daniels, Sarah Daniels and Cecilia Daniels, filed their bill in 
 the District Court for Iowa County against Sylvester B. Pres- 
 ton, William Kendall, William T. Pliillips and Williairi 
 Nichols, claiming to be the owners of a certain tract of land 
 in Iowa county, and praying for a decree for an account of 
 mineral taken therefrom by the defendants, and that they be 
 decreed to yield and surrender possession tliereof to the com- 
 plainants, and for an injunction to restrain the defendants 
 from working a copper mine on the premises in question. 
 After the bill had been answered the venue was changed to 
 Milwaukee countj', and at the hearing, the District Court of 
 Milwaukee county made a decree dismissing the bill, from 
 which Bracken appealed. The allegations of the bill and the 
 substance of the answer and evidence are stated in the opin- 
 ion of the court. 
 
 T. P. Burnett, for appellant. 
 
 F. J. Dunn, for appellees. 
 
 ' Sayer v. Pierce, 1 M. R. 72. 
 
 ^JacJeson v. McMurray, 4 Colo. 76; Post Pleading. 
 
Bracken v. Pkeston. 269 
 
 MiLLEE, J. 
 
 The bill of complainants is sworn to by Charles Bracken, 
 one of complainants, who is also next friend of Sarah Daniels 
 and Cecilia Daniels, of Michigan, minor children of Lyman 
 J. Daniels, deceased. Amelia Daniels is the widow of said 
 Lyman, deceased. The bill sets forth that on the 18th day 
 of November, A. D. 1835, Charles Bracken, David Irvin and 
 Lyman J! Daniels entered at the land office at Mineral Point, 
 in Iowa county, the east half of the northeast quarter of sec- 
 tion 'No. 5, in township No. 4, of range No. 3, east, contain- 
 ing 80y?jj-9^ acres, and the receiver's receipt for the payment 
 of the purchase money, of the same date, is presented as evi- 
 dence, by which the parties became seized as tenants in com- 
 mon of the said land, and as sacli have the absolute, sole and 
 exclusive right to' the use, occupancy and possession of the 
 said tract of land, and to all the rents, issues and profits of 
 the same; and to all minerals, ore and mineral dirt, of what- 
 ever description or kind, that were, or might at any time be 
 or exist in or upon said tract of land; that a very valuable 
 mine of copper ore was discovered upon said land, which said 
 mine has been extensively worked, and a large qnantity of 
 copper ore, and of dirt intermixed with copper ore, has been 
 raised to the surface of the ground from such mine. And 
 after said copper mine had been discovered and worked, and 
 after large quantities of copper ore had been raised as afore- 
 said, William Kendall, Sylvester B. Preston, William T. Phil- 
 lips and William Nichols, without law or right, and contrary 
 to the will of complainants, entered and took possession of 
 said tract, on or about the 25tli day of June, 1842, and con- 
 tinued therein until the 20th day of July, A. D. 1842, and 
 refused to permit complainants to take possession of, or in any 
 manner to occupy or enjoy that portion of the said tract em- 
 bracing said copper mine, and during all that time took and 
 carried away from the said tract of land large quantities of 
 copper ore, and during all that time converted- to their own 
 use the whole of the products of the said copper mine. And 
 that on the said 20th of July, 1842, tlie said Charles Bracken, 
 having quietly and peaceably taken possession of the said 
 tract of land and copper mine, and having left his agent in 
 possession of the same, who was quietly and peaceably hold- 
 
270 Injunction. 
 
 ing the same by the authority of the said Charb Bracker, 
 and for his use and benefit, the defendants, with force and 
 arms, and with strong hand, unlawfully and forcibly did again 
 enter upon said land and expel the said agent therefrom, and 
 again took possession of t!ie same, and refused to permit 
 complainants to enter upon the same and occupy said copper 
 mines, or take the copper ore, but have converted and are 
 converting the same to their own use, and retain the posses- 
 sion thereof. 
 
 On tlie 2d of August, 1842, Charles Bracken made his 
 complaint against the said defendants for forcible entry and 
 detainer upon and of said premises, to a justice of the peace 
 of Iowa county, and a summons was issued returnable on the 
 ninth of the same month; but complainants justly fear that be- 
 fore the return day of said summons the said defendants will 
 commit great and irreparable waste upon said premises by re- 
 moving the said copper ore from said premises, and that they 
 are continually removing the same and threaten to supersede 
 by certiorari any writ of restitution complainants may obtain 
 in pursuance of said proceeding in forcible entry and detainer. 
 And complainants greatly fear that defendants will commit 
 great and irreparable waste upon said tract of land before 
 they or either of them can obtain any adequate or peripanent 
 relief at law, and pray that defendants may be decreed to sur- 
 render up to complainants the quiet and peaceable possession 
 of the said tract of land and copper mine of which they are 
 seized as aforesaid, and all the proceeds of the same; ai)d that 
 defendants may render an account of the proceeds of said 
 copper mine, and how much of the same they have disposed 
 of and converted to their own use; and be decreed to pay the 
 same to complainants; and that the complainants may be 
 quieted in their title to and possession of said premises; and 
 for such other relief as the nature and circumstances of the 
 case may require. 
 
 The defendants' answer was filed in the court of Iowa 
 county on the 4th of February, 1843. They admit that the 
 land aforesaid was entered by Bracken, Irvin and Daniels as 
 set forth in the bill, but deny that said entry vested in them 
 the fee of said lands, but that as no patent therefor had been 
 issued, the fee remained in the United States; admit that 
 Bracken, Irvin and Daniels and tlie said widow and heirs of 
 
Bracken v. Pkeston. 271 
 
 said Daniels may have been seized and possessed as set forth 
 in said bill, but aver that they always understood that Arthur 
 Brunson, of New York, to whose agent defendants paid rent, 
 was the owner of the interest of said Daniels; and defend- 
 ants denj' that the complainants had sole and exclusive right 
 thereto during all the time to the filing of the bill, nor liad 
 they the sole right to all the mineral ore on said land, or to 
 mine and dig on the same, but the right of complainants to 
 the sole occupancy of said premises was restricted by their 
 leasing and letting the said premises to many persons to mine 
 and dig upon. The defendants admit there was a valuable 
 discovery of copper ore made on a part of said tract, but deny 
 that it was made when the complainants were in possession, 
 or had the right of possession to tliat part of said tract on 
 which said discovery was made. From the time of the entry 
 of said premises until after said discovery was made, by com- 
 mon custom, and by tacit consent of the owners of said tract, 
 the same was at all times open to let and free to be taken up 
 and worked in search of ore, by all and any persons who might 
 choose to work the same, by paying the usual rent out of all 
 ore raised on said premises. That Andrew Kemphrey (under 
 whom defendants claim) did, some time in the winter of 
 1841-i2, ask of Charles Bracken, one of complainants, and 
 who professed to be agent for the other owners, the privilege 
 of mining, digging and searching for ore on said land, and 
 that he gave said Kemphrey leave to mine on said land, and 
 to raise and take therefrom all ore he might discover, suljjoct 
 tothe condition that Kemphrey was to pay to the owners of 
 said premises one fifth thereof, and said Bracken should have' 
 the privilege of having the remainder thereof if he would give 
 as high a price and make as good payments as any other per- 
 son for the same; said Kemphrey at the same time applied 
 to said Bracken for a written lease of said premises, but that 
 he answered that a written lease was unnecessary as there 
 were a suflScient number of witnesses present. Under said 
 lease said Kemphrey took as a partner one of the defendants, 
 William T. Phillips, because he could not well work alone; 
 and according to mining custom and rule, and after having 
 made the valuable discovery of copper ore, went on said 
 premises in company with Charles Bracken and measured 
 
272 iNJUNCTioif. 
 
 and staked off a lot 200 yards square, or thereabouts, accord- 
 ing to the custom of the mines. 
 
 Some time after the tirst discovery was made, in March, 1842, 
 the said Eemphrey and Phillips made a very valuable discov- 
 ery of copper ore on the said premises, at which time 
 and frequently thereafter tiie said Bracken was on the said lot, 
 and appeared to be well satisfied with the manner of working 
 the said ground and the discoveries that had been there made, 
 and the right of the said Remphrey and Phillips to the said 
 ores, except the one fifth rent as aforesaid. And also the 
 other owners, or their agents, expressed entire satisfaction, 
 after the discovery, of the letting aforesaid. And the said 
 mine was peaceably and quietly worked for a long space of 
 time, and large quantities of copper ore were raised from the 
 same, and portions of it were removed to the most convenient 
 water in order to cleanse and prepare the ore for smelting, 
 which was absolutely necessary. After some time, and before 
 any of the ore so raised was prepared for market, Bracken 
 committed such acts of domineering as to indicate an inten- 
 tion to give trouble, when Kemphrey sold to Sylvester B. 
 Preston, one of the defendants, all his right, title and interest 
 of, in and to the said lot so leased and laid off as aforesaid, 
 and the copper ore discovery thereon, and the mineral then 
 raised, for the siira of $300, which he had a perfect right to 
 do, his interest being the one half of the lot and discovery, 
 the said William T. Phillips owning the other. The said 
 ^Nichols and Kendall worked and were on the ground by per- 
 mission of Preston and Phillips; and that from the said trans- 
 fer by said Kemphrey to Preston (which transfer was a matter 
 that could not have been other than well known to said com- 
 plainants, Bracken and Irvin) these defendants worked the 
 said lot, and raised therefrom large quantities of copper ore. 
 And after some was washed and prepared for market, they 
 caused notice to be given said Bracken by the agent of David 
 Irvin, one of complainants, that the said ore that was so raised 
 by said Phillips, Remphrey and these defendants, amounting 
 to about 50,000 pounds, was ready for sampling, division and 
 market, and offered at the same time to let said Bracken have 
 four fifths of said mineral owned by said defendants at $16 per 
 thousand, or to give for the other fifth (the rent mineral) the 
 
Bracken v. Pkeston. 273 
 
 same sum per thousand, when said Bracken urged no objec- 
 tion whatever to these defendants occupying said lot and 
 digging and raising ore, but urged as a reason why he would 
 not give or take $16 per thousand, that he wished some per- 
 manent price set on said copper ore that would govern all ore 
 raised on said lot; that these defendants were compelled to be 
 governed by the price of copper and copper ore in the market 
 to regulate the price they could pay for copper ore. Said 
 Bracken was also notified that the ore owned by the defend- 
 ants was ready for market, but he wonld not give as good 
 prices for the same, or make as good payments as others 
 would. He offered no price whatever at any time for the ore, 
 nor did or would he offer at the time of the division of the 
 said ore, but the clerk of Curtis Beech, who was, as defend- 
 ants understood, the agent of two of the owners of said prem- 
 ises, and as such agent, controlling two thirds of the rent, 
 attended said division, and there was then and previous to the 
 exhibiting of the bill of complaint at all times a fair division 
 of all ore ready for market that was raised on said lot, which 
 division was acquiesced in by said agent. Defendants con- 
 tinued to occupy and work the mine and raise ore for some 
 short time after the aforesaid division, and to remove the said 
 ore to the wash place to prepare the same for division and 
 market, in hopes that they would be permitted, peaceably and 
 quietly, to mine and occupy said lot so long as they complied 
 with the terms of letting the same with the privileges of min- 
 ing to said Kemphrey, which these defendants state that they 
 at all times complied with. The said Charles Bracken, with- 
 out right or color of right, on the morning of the 20th of 
 July, 1842, or early in the morning, with his brother John 
 Bracken and Lott Harris, went to the said mine, and when 
 some of these defendants and their laborers went as usual to 
 said lot or mine, they found the said Charles Bracken, John 
 Bracken and Lott Harris had drawn the mining tools of the 
 defendants out of the shaft in which the defendants had been 
 at work and moved them some distance from the shaft. 
 Charles Bracken then said to defendants that he had taken 
 possession of the ground in his own right, and intended keep- 
 ing possession, and then removed the windlass of defendants 
 from the shaft, and placed anotlier windlass there belonging 
 
 VOL. VII.— 18' 
 
274 IjsrjuNCTioisr. 
 
 to himself Of some other person. Bracken claimed the pos- 
 session by his own right as owner of tlie soil. After some 
 verbal altercation said Charles Bracken, Jolm Bracken and 
 Lott Harris left the ground, and defendants continued in 
 possession to work as usual. 
 
 The defendants attended upon the justice in the forcible en- 
 try and detainer case, which plaintifl's discontinued, and imme- 
 diately commenced a second prosecution, which was tried and 
 a verdict rendered for tlie defendants; the complainant there- 
 upon issued a writ of certiorari to remove the proceedings to 
 the District Court of Iowa county wliere the same was pend- 
 insr. After the trial of this case, the defendants removed a 
 large quantity of ore which they had raised to the wash place, 
 and notified sai,d Bracken and the agent of the owners, that 
 the same was ready for division and market, which was taken 
 by said. Bracken and complainants by a writ of replevin. 
 
 The defendants say that those of them who own the said lot 
 and discovery and wlio were not on the said lot and premises 
 when the said discovery was first made, came into possession 
 by purchase for a valuable consideration, and that they all 
 claim under Andrew Remphrey, who leased in good faith from 
 the said Charles Bracken, and had a right by common custom 
 to dig on such ground without such express consent; that they 
 purchased in good faith and have strictly complied with the 
 terms of the letting to said Remphrey. Have never been in 
 possession of any part of said premises set forth in the bill, 
 except the said lot and discovery; and that they have a right 
 to the possession of said lot as long as they comply with the 
 terms of the lease aforesaid, and faithfully work said lot as 
 they have always done. And they deny tl.a; the said Charles 
 Bracken was at any time after the said copper discovery in 
 the quiet and peaceable possession of the said lot and discov- 
 ery thereon, or that he was ever forcibly expelled therefrom, 
 but that defendants and Andrew Remphrey, under whom they 
 claim, have been in the possession of said lot and discovery 
 from the time the said lot was taken up and discovery made to 
 the present time; and if that possession has not been peace- 
 able it was owing to the unlawful and dishonest acts of one 
 of the complainants; and that Bracken always had the option 
 of purchasing the said ore, on due notice. Nor did they ever 
 threaten to remove the judgment in the case of forcible entry 
 
. Bracken v. Pkeston. 275 
 
 and detainer by certiorari, for they did not suppose a judg- 
 ment would ever be rendered against them. 
 
 Bracken, in his petition to the conrt of Iowa county respect- 
 ing the injunction, represents, that being the owner in fee of 
 the equal, undivided one third part of the said tract of land, 
 and having the agency and charge of the other two thirds, 
 which were owned in fee by said Irvin and Daniels' heirs, he 
 gave to Andrew Remphrey verbal permission to dig, etc. 
 
 Andrew Kemphrey states in his deposition that he asked 
 Charles Bracken if the piece of land he wanted was the piece 
 which William Henry was promised, and he said no. Then 
 asked Bracken if he could have it, and lie said yes. Witness 
 asked him the terms, and he said he would let it for one fifth 
 and give him the privilege of the copper; then witness said 
 provided yon give as much as any other person, and the only 
 word he made in reply was, certainly. About the limits of 
 the land we did not finally agree then, bnt Bracken promised 
 to meet witness on the groufld. About four or five weeks after. 
 Bracken met witness on tlie ground; they hauled, witness up 
 out of the shaft, and he said, Andy, what way do you want 
 your limits; witness replied 200 yards east from that stump, 
 100 yards north therefrom, 100 yslrds south. Bracken 
 notified witness not to assign this lease or privilege. Wit- 
 ness assigned it to Preston in writing before suits were com- 
 menced. 
 
 Eichard Crocker states in his deposition about the same in 
 substance as contained in Remphrey's deposition respecting 
 the contract. Curtis Beech also states the same in substance. 
 It appears in evidence, that Bracken and defendants are smelt- 
 ers at difl'erent establishments. And in June, 1842, Preston, 
 one of the defendants, said he was willing to give $16 per thou- 
 sand for the one fifth of the ore then on hand, or take the same 
 xbr the four fifths, of which Bracken was informed. It also 
 appears that they waited for Bracken's decision in the matter, 
 whether he would give or take on this proposal. It also ap- 
 pears in proof that Bracken entered upon the ground in July, 
 1842, in company with others, when he made a claim of pos- 
 session and notified the defendants to quit; and that the de- 
 fendants continued in the uninterrupted possession. In June 
 or July, 1842, David Irvin authorized Curtis Beeeli to act as 
 his agent and to receive his dues, and that he did so for a 
 
276 Injunction. 
 
 short time, and sent a hand to see the ore divided, by putting 
 one fifth in one pile and four fiftlis in another; and that be- 
 fore the commencement of suits the ore was raised in great 
 quantities and regularly divided. 
 
 The bill presents a case of trespass with a eontimtando, and 
 prays for a preliminary injunction to prevent the defendants 
 from committing irreparable injury to the premises during 
 the pendency of a prosecution for forcible entry and detainer. 
 It also prays for a final decree for surrender of the premises; 
 for an account, and that the complainants may be quieted 
 in their title and possession. The defendants allege and prove 
 that they are in possession of the mine, claiming the rigiit. 
 What right the defendants have to the possession it is not 
 necessary in this case to determine; whether there is a lease 
 or a license 'between the parties, or whether it was a mere 
 contract for personal service on the land of the complainants, 
 we will not stop to consider. 
 
 From an examination of the authorities upon the subject it 
 appears that an injunction lies to restrain a trespass in order 
 to quiet the possession; or where there is danger of irrepar- 
 able mischief, or where the value of the inheritance is put in 
 jeopardy by a continuance of the trespass. Tlie foundation 
 of this jurisdiction in equity is the probability of irreparable 
 mischief, the inadequacy of pecuniary compensation, and tiie 
 prevention of a multiplicity of suits. Inordinary trespasses, 
 or where the courts of law can afford complete satisfaction, 
 equity refuses to interfere, and will rarely and under very 
 peculiar circumstances entertain jurisdiction in actions of tort: 
 Yancy v. Downer, 5 Litt. 9; Stevens v. Beekman, 1 Johns. 
 Oh. 319; Livingston v. Livingston, 6 Id. 497; Jerome v. 
 Ross, 7 Id. 315; Ifew York Printing Est. v. Fitch, 1 Paige, 
 97; 6 Vesey, 147; 7 Id. 305; 8 Id. 89; 10 Id. 290; 17 Id. 
 128-281; 18 Id. 180; Eden on Inj. 136, 137, 138, 139; Fon- 
 blanque's Equity, 3 and notes; 31 and notes; 50 and notes; 
 Story's Eq. 209. And this power of equity, when exercised, 
 is by means of injunction. 
 
 Trespass in digging mineral or mining on the land of an- 
 other comes within the cognizance of a court of equity wlien 
 committed by a mere trespasser, or where a party exceeds the 
 limited rights with which he is clothed. 
 
 Every bill must contain within itself sufficient matter of 
 
Beacken v. Pkeston. 277 
 
 fact, per se, to maintain the caae of the plaintiff, and the 
 proof must be according to the allegations of the parties: 
 Harrison v. J^ixon, 9 Pet. 483. The plaintiffs in this case 
 acknowledge themselves out of possession. The bill sets 
 forth " that after the copper mine had been discovered and 
 worked, and after large quantities of copper ore had been 
 raised, the defendants, without law or right, and contrary to 
 the will of complainants, entered e,nd took possession of said 
 tract on or about the 25th day of June, 1845, and continued 
 therein until the 20th of July of the same year, and refused 
 to permit the complainants to take the possession of, or in 
 any manner occupy or enjoy that portion^ of said tract em- 
 bracing said copper mine; and during all that time took and 
 carried away large quantities of copper ore; and during all 
 tiiat time converted to their own uie the whole of the prod- 
 ucts of said copper mine; and that on the 20th of July, 
 1842, the said Charles Bracken having quietly and peaceably 
 taken possession of said tract of land and copper mine, and 
 having left his agent in possession of the same, who was 
 quietly and peaceably holding the same by authority of said 
 Bracken, and for his use and benefit, the defendants, with force 
 and arms and with strong hand, unlawfully and forcibly did 
 again enter upon said land and expel the said agent therefrom, 
 and again took possession of the same, and refused to permit 
 complainants to enter upon the same and occupy said copper 
 mine or take the copper ore, but have converted and are con- 
 verting the same to their own use and retain the possession 
 thereof." 
 
 The policy of preventing irreparable injury has introduced 
 an exception to the general rule in cases of waste, or of mis- 
 chief analogous to waste, but this does not extend to ques- 
 tions of title: 1 Smith's Ch. 595; Morpheit v. Jones, 19 
 Yesey, 350. The complainants, in cases of waste, must gen- 
 erally have the possession of the premises, or have established 
 their right at law, or have brought an action to recover the 
 possession, or in cases of tenants, after notice to quit: 1 
 Smith's Ch. Pr. 593; 3 Barb. & Harrington's Dig. 4T8, 479; 
 Scott V. Wharton, 2 Hen. & Munf 25; Dumll v. Waters, 1 
 Bland, 576; 2 Story's Eq. 177, 207; Hart v. The Mayor of 
 Albany, 3 Paige, 213. In such cases courts are generally 
 
• 278 Injunction-. 
 
 cautious, and they will not grant relief when the complainant 
 is out of possession. In cases of this nature courts make a 
 great difference between restraining a defendant from working 
 a mine already opened, and restraining him from opening 
 one: Or&y v. Dwhe of Northumberland, 13 Yesey, 236. 
 And it is held in many cases referred to on pages 51 and 52 
 of Fonblanque's Equity, that the plaintiff's exclusive right 
 must be admitted by the defendant or established at law, to 
 warrant the interference of a court of chancery. 
 
 No injunction will be allowed in cases of trespass, with an 
 account, where the plaintiffs can not maintain an action at 
 law for mesne profits. In 6 Bacon's Abr., title Trespass, 
 page 566, it is stated that " only the person who has the pos- 
 session, in fact, of real property to which an injury has been 
 done, can maintain an action of trespass, quare clausum 
 fregit/ a general property not being in the case of real prop- 
 erty, as it is in the case of personal, sufficient to found this 
 action upon." Also in Meghan v. Mills, 9 Johns. 64; Oor- 
 field r. Coryell, 4 "Wash. C. C. 371. After entry the owner 
 mdij \i?i.ye ires\)&ie, quare clausum fregit, but not before: 17 
 Pick. 263; 17 Mass. 282. A person disseized can not main- 
 tain trespass: 10 Pick. 171. Trespass would probably lie for 
 the entry and ouster of the plaintiflf, but damages can only 
 be recovered for the simple entry and ouster, and not for the 
 continuance of the trespass. Damages for the continuance 
 are not recoverable until after plaintiffs have gained posses- 
 sion: Holmes v. Seel/y, 19 "Wend. 507; Mather v. The Trinity 
 Church, Z Serg. & Kawle, 509; Brown v. Caldwell, 10 Id. 
 114; Demott v. Hagerman, 8 Cow. 220; 6 Serg. & Rawle, 
 476. 
 
 When a bill seeks an account of ore dug, the court of chan- 
 cery will decree it in a proper case: Bishop of Winchester v. 
 Knight, 1 P. "Wms. 406; because the working of a mine is a 
 kind of trade: Story v. Lord Windsor, 2 Atkyns, 630; Mar- 
 quis of Lansdowne V. Marchioness of Lansdowne, 1 Mad. 73; 
 but the plaintiff must show his possession: Lyn v. Pierce, 5 
 Vesey, 259. . " Neitlier will equity, in all cases, decree an ac- 
 count of mesne profits; for where a man has title to the pos- 
 session of lands, and makes an entry, whereby he becomes 
 entitled to damages at law for the time that possession was 
 
Bkacken v. Pkeston. 279 
 
 detained from him, he shall not, after his entry, turn that action 
 at law into a suit in equity^ and briYig a bill for an account 
 of the profits, except in the case of an infant, or some other very 
 particular circumstances, which extend to all those cases tliat 
 involve an equity which can not be made available at law." 
 Fonbl. Eq. 31, 32. 
 
 Although the defendants have not shown a legal right to the 
 possession, we can not decree a surrender, for it is not the prac- 
 tice of this court to determine the legal rights of tlie parties, 
 and make such a decree. A court of chancery does not possess 
 any direct jurisdiction over legal titles. The court may perhaps 
 try titles to lands, when they arise incidentally; but it is under- 
 stood not to be within its province. The power is only to be 
 exercised in difficult and complicated cases, affording peculiar 
 grounds for equitable interference: AbhoU \ . Allerh.'i Johns. 
 Oh. 524. If the case be clear, a court of equity will interfere to 
 quiet the title to land: Alexander v. Pendleton,^ Cranch, 462; 
 but the plaintiffs must be in possession of the land; tlie injunc- 
 tion to yield up or quit possession of land is a judicial writ, 
 and subsequent to a decree in the nature of a writ of execution. 
 It is sometimes used in aid of a judgment at law. It is always 
 issued in aid of a decree in chancery, in putting a purchaser 
 into possession, and is followed by a writ of assistance: Eden 
 on Inj. 261; Story's Eq. 226, 227; Kershaw v. Thompson,'^ 
 Johns. Ch. 609. This injunction is never granted in a case 
 like the one now under consideration. 
 
 Soif a bill should be brought for the possession of land, 
 which is commonly called an ejectment bill, it wonld be de- 
 murrable, for the proper redress is at law. And even if such 
 . bill should charge that the defendant had gotten the title 
 deeds and mixed the boundaries, and should on that ground 
 pray for a discovery, possession and account, a demurrer (at 
 least upon the doctrine maintained in England) would lie. 
 For, although the plaintiff would be entitled to the discovery 
 of the title deeds, yet he wonld not have any title to the relief; 
 that after the discovery being properly given, it is at law; 
 and by praying relief as well as discovery, his whole bill 
 would be demurrable: Story's Eq. PI. 374, 375, and cases 
 there cited. 
 
 The court is not willing to exercise the chancery jurisdic- 
 
280 Injunction. 
 
 tion, unless in clear cases properly presented, and in which it 
 satisfactorily appears that full and complete justice can not be 
 had at kw. In this case it appears that Bracken, one of the com- 
 plainants, assumed to act for himself and tiie other complain- 
 ants, in letting the mine and making the contract with Reni- 
 phrey for working it. The other complainants did not dispute 
 Bi-acken's authority to act in the premises. They desired the 
 mine to be worked for their own interest, and put Remphrey 
 into possession, who transferred his possession to these defend- 
 ants who continued to work the mine as Remphrey had worked 
 it. Now it can not be made satisfactorily to appear that this 
 is a case of such irreparable injury as would entitle the com- 
 plainants to the aid of this court on this bill. The defendants 
 allege and prove that they are in the actual, exclusive and ad- 
 verse possession of the mine, claiming the right. It fully ap- 
 pears that Charles Bracken made an ineffectual effort to regain 
 the possession. Hence it is apparent that this presents a case 
 wherein full and complete justice can be done in an action at 
 law. Ejectment is the proper remedy, with a preliminary or 
 interlocutory injunction to stay waste, upon a proper bill, dur- 
 ing the pendency of the action ; and after the recovery, an 
 action of trespass for the mesne profits. But it is contended 
 that inasmuch as the complainants are not invested with the 
 legal title to the premises by a patent from the United States, 
 «n action of ejectment can not be maintained. The patent is 
 not an indispensable muniment of title for this purpose. The 
 act making receivers' receipts evidence will enable the plaint- 
 iffs to recover possession of the land in ejectment. Between 
 individuals the receiver's receipt, under this statute, is recog- 
 nized as legal evidence of title, but not against the United 
 States: Wiloox v. Jackson, 13 Pet. 516. 
 
 It is therefore considered and adjudged by the court that 
 the decree of the District Court of Milwaukee county, dismiss- 
 ing complainants' bill, be and the same is hereby aiSrmed with 
 costs. 
 
 Judge Irvin was a party to this action and did not partici- 
 pate in the hearing or decision. 
 
 Affirmed. 
 
MooKE V. Fereell. 281 
 
 Moore v. Fekeell et al. 
 
 (1 Georgia, 7. Supreme Court, 1846.) 
 
 • Notice to dissolve. Service of the rule niH upon complainant's solicitor, 
 stating the grounds of the application and fixing the time and place of 
 hearing the motion to dissolve an injunction in vacation on the coming 
 in of the answer, is sufficient service. 
 
 What answer will compel dissolution. "Where the answer plainly and 
 distinctly denies the facts and circumstances upon which the equity of 
 the hill is based the injunction will he dissolved; but where the trespass 
 itself is not denied and the defense is in the nature of confession and 
 avoidance there is not a denial of the equities. 
 
 ' Irreparable natnre of injury. The irreparable character of the injury is 
 a necessary legal inference from the facts admitted — that defendants are 
 taking the gold. 
 
 Title and insolvency denied. Trespass will be enjoined in all cases where 
 from the nature of the trespass or the circumstances of the parties 
 the remedy at law is not adequate, but equity will not intermeddle 
 with the title; where title is denied courts will look more closely to the 
 character of the trespass. It will not dissolve an injunction against 
 gold mining upon an answer denying only the title and the allegation 
 of insolvency. 
 
 For the facts of the case see the opinion of the court. 
 
 Undeewood & Teippe, for plaintiff in error. 
 
 Akin, for defendants. 
 
 By the Court, Nisbet, J. 
 
 This cause came before this court upon a transcript of the 
 record, from the county of Gilmer. The plaintiff in error, 
 Michael C. Moore, filed his bill in the court below, alleging 
 tliat, as a fortunate drawer in the land lottery, he is the right- 
 ful owner of a lot of land situate in the county of Gilmer; 
 that there is on it a rich, and therefore valuable gold mine; 
 that the defendants, Ferrell and others, being in possession, 
 are engaged in digging gold from the mine, and are daily 
 carrying away large quantities of gold; that they are either 
 insolvent, or so poor as to be unable to respond in damages; 
 
 ' Capner v. Flemington Co., 7 M. R. 263. 
 * Anderson v. Harvey, 7 M. R. 291. 
 
282 Injunction. 
 
 that it is impossible to prove the amount of injury which tliey 
 are likely to do to the complainant, without resort to their 
 consciences; and that the trespass of the defendants will result 
 in irreparable injury to him unless they are restrained. 
 
 The bill concludes with a prayer for injunction, that the 
 title papers of the defendants be delivered up to be canceled, 
 and for relief generally. 
 
 The bill was sanctioned and the injunction ordered. Before 
 the appearance term of the bill, the defendants filed their an- 
 swer and moved the court at chambers for a rule upon the 
 complainant to show cause why the injunction should not be 
 dissolved. The rule being granted, service thereof was per- 
 fected, upon the complainant's solicitor. The answer admits 
 that the complainant was the drawer of a lot of land under the 
 Lottery Acts of the State of Georgia, and that the State's grant 
 had duly issued to him; but states that since the issuing of 
 the grant, the land has been sold as the property of the com- 
 plainant by the sheriff of Gilmer county, by virtue of an exe- 
 cution against the complainant, issued from a magistrate's 
 court; and that they claim title under the purchaser at the 
 sheriff's sale. 
 
 The defendants, in their answer, further state that the com- 
 plainant has parted with all the title which he ever had to the 
 land by deed to one Samuel Tate. They admit that they are 
 in possession and engaged with a large force in digging gold; 
 that the mine on the land is valuable; and that they receive 
 from it daily a considerable amount of gold. Their insolvency 
 they neither admit nor wholly deny. Such are the facts em- 
 braced in the bill and answer, which the court think necessary 
 to be stated, in order to a clear understanding of the principles 
 of law, which they believe govern this cause. 
 
 The judge of the circuit court having heard argument 
 at chambers, upon the rule dissolved the injunction. 
 
 To this decision the complainant excepted, and assigned for 
 error: 
 
 1st. That the injunction was dissolved before the term of 
 the court to which the bill was returnable, contrary to the 
 statute of Georgia. 
 
 2d. That the rule to show cause was not legally served, it 
 being served on the complainant's solicitor, when it should 
 have been served on the complainant himself. 
 
Moore v. Feeeell. 283 
 
 3d. That the bill being filed to restrain a trespass upon a 
 gold mine, and the matter set forth therein, showing a case 
 of irreparable injury to the complainant, and of utter destruc- 
 tion to the mine, a court of chancery will enjoin the trespass 
 until the title to the land can be settled by judgment of a 
 court of law. 
 
 Two other assignments of error were made, but are consid- 
 ered only as different forms of the third assignment. Issue 
 being joined, the cause was ably argued upon the second and 
 third assignments, the first being abandoned by the counsel 
 for the plaintiff in error. 
 
 In the 4th of our rules in equity it is provided that in cases 
 of injunction, the respondent shall be entitled to file his 
 answer at any time after the tiling of the bill, and thereupon, 
 at chambers, moving the judge who granted the bill for the 
 dissolution of the injunction: if the equity of the bill shall 
 be sworn off by the answer. But in such cases a rule nisi 
 stating the grounds of the application and fixing the time and 
 place of hearing the motion, shall be served on the complain- 
 ant at least ten days before the hearing of any such motion. 
 The service of the rule nisi in this case was made on the 
 complainant?s solicitor, instead of the complaina it, and for 
 this reason it is contended, under the requirements of the 
 rule recited above, that the court erred in not dismissing the 
 rule nisi and holding up the injunction. Tliis court does not 
 so think. It is true that the 4th rule does require the service 
 of the rule nisi to be on the complainant. The advantages of 
 this requirement are more than counterbalanced by its in- 
 conveniences. 
 
 In most cases it would be more convenient and therefore 
 desirable to the complainant himself, that the service should 
 be upon his solicitor. It was intended, no doubt, as a boon, 
 but it looks more like a burden to the complainant. Why it 
 is so need not be here argued. Still if this was the only rule 
 upon the subject of service of notices, the court would be con- 
 strained to reverse the decision of the circuit judge. By the 
 16th of our rules in equity it is provided as follows: 
 
 " After appearance by the party defendant to any bill in 
 equity, by any solicitor of this court, the service of any sub- 
 poena to make better answer, or any rule or order of the 
 
284 iNJUNcnoN. 
 
 >jourt on such defendant or solicitor, shall be sufficient; service 
 on complainant or his solicitor shall in like manner be deemed 
 sufficient service." The defendant having in this case filed his 
 answer by his solicitor, the court holds that to be such an ap- 
 pearance by counsel as will bring the service of the rule 
 nisi under the provisions of the 16th rule, and make it suf- 
 ficient. 
 
 "Waiving for a moment the main inquiry, and conceding 
 that a court of chancery can enjoin a trespass, aside from 
 any other consideration, was tlie equity-of this bill so denied 
 or sworn off by the answer as to entitle the defendants to 
 a dissolution of the injunction? The court are of opinion 
 that it was not. 
 
 It is a well settled rule in equity, that upon the coming in 
 of an answer plainly and distinctly denying the facts and cir- 
 cumstanaes upon which the equity of the bill is based, the 
 court will dissolve the injunction; it is also settled that for the 
 purpose of the dissolution all such parts of the answer as 
 are responsive to the bill are to be taken as true. What, are 
 the facts upon which the equity of this bill rests? The title 
 of the complainant to the land, its great value in consequence 
 of the gold ore imbedded in it, the insolvency, or inability to 
 respond in damages, of the defendants, and the consequent 
 irreparable injury they were doing to him by digging his gold. 
 It is because of these facts, thus stated, that the injunction 
 was at first granted, and if not denied, they constitute still 
 the strongest equity. 
 
 Now so far from the answer denying them', they are all 
 therein admitted, except the insolvencj' of the defendants, 
 which it very unsatisfactorily denies. The answer admits'that 
 complainant drew the land, and that the State's grant was duly 
 issued to him — that there is within it a rich mine which they 
 (the defendants) are engaged in working, and that they 
 abstract therefrom daily about one hundred pennyweights of 
 gold. The irreparable character of the injury is a necessary 
 legal inference from the facts admitted; so that, in the state- 
 ments of the answer responsive to the bill, the court can find 
 no sufficient denial of the complainant's equity. It is true 
 that the answer states that complainant's title to the land 
 passed from him to them by levy and sale under a judgment 
 
MooKE V. Feeeell. 285 
 
 against him, and that, in addition, he had parted with his 
 title by deed to a third person. 
 
 Upon a motion to dissolve, the court can not take these 
 statements as true; they are not responsive to the bill, and 
 are matter in avoidance, which the defendants would be com- 
 pelled to prove on the trial. 
 
 A defendant in equity can not both charge and discharge 
 himself in his answer. The court, therefore, believe that 
 upon the concession of the right of equitable interference in 
 this case, there is not such a denial of the equity of the bill 
 as can justify the dissolution of the injunction: 4 Johnson's 
 C. Eep. 499; 2 Johnson's C. Eep. 88; 7 Yesey, 587. 
 
 Upon the question as to the power of a court of chancery 
 to restrain a trespass, in the case made by this^bill and answer 
 this court entertains no doubt whatever. 
 
 Ordinarily' all remedy for a trespass is at law, because or- 
 dinarily that remedy is quite sufficient. 
 
 And to the courts of law appertains the jurisdiction over 
 titles to land. In all cases of ordinary trespass equity will 
 leave the party to liis redress at law. And in cases wliere she 
 interferes to execute preventive justice by enjoining trespass- 
 ers, she still forbears to intermeddle with the title. 
 
 The renjedy which courts of law aiford for trespasses is re- 
 tributive; it is indispensable to any adequate protection of the 
 rights of the citizen that there should exist somewhere a pre- 
 ventive power. This necessary power is wisely lodged with 
 our courts of chancery, to be exercised with enlightened dis- 
 cretion by process of injunction. Any system of laws which 
 afford no such power must be exceedingly defective. It is 
 truly said by a learned English chancellor that the want of it 
 would be a reproach to the " moral jurisdiction " of courts of 
 chancery. The jurisdiction here claimed for a court of equity 
 has been exercised in England since the time ©f Lord Thue- 
 Low; for the first case of injunction for trespass, so far as we 
 are informed, was that of Flammang (cited in 6 Vesey, 147), 
 under his administration. The jurisdiction was conceded by 
 Lord Eldojt in subsequent "cases, and has been acknowledged 
 in this country by repeated adjudications before the highest 
 tribunals. Formerly it was exercised only to restrain waste 
 between parties holding privity of title; now it is extended 
 
286 Injxjnctiox. 
 
 to all cases of trespass attended with irreparable mischief, or 
 which result in the destruction of the substance of the prop- 
 erty, or to cases where a plaintiff at law can not prove his 
 damage. Indeed trespass will now be enjoined in all cases 
 where, from the nature of the trespass, or the circumstances 
 of the parties, the remedy at law can not be full and adequate; 
 such as the working of mines: 6 Yesey, 147; 7 Yesey, 370; de- 
 struction of timber: 10 Yesey, 290; 2 Hill's 0. R 617; tlie 
 digging and amotion of stones of peculiar value: 17 Yesey, 
 128; quarrying common stone: 18 Yesey, 184. 
 
 The reasoning upon which all these cases are decided is 
 very mrtch the same. It starts with the assumption that all 
 persons are entitled to be protected in the use, integrity, and 
 value of their property; and where courts of law can not give 
 such protection, whether because of the tardiness of the rem- 
 edy, the peculiar nature of the property injured,' the insolvency 
 of the wrongdoer, or the plaintiff's inability to prove his 
 damage, equity must needs interfere, in order that justice be 
 doiie with her harsh but indispensable process of injunction. 
 In the cases referred to the main inquiry was this: "Is the 
 injury complained of likely to be irreparable?" and when 
 charged so to be in the bill, and obviously, from the facts 
 stated, truly charged, the injunction has not been withheld. 
 The application of this test to the case now under considera- 
 tion, will, it is believed, at once dispel all doubt as to the 
 error of the circuit judge in dissolving this injunction. This 
 question came under the review of Chancellor Kent in the 
 last case which he tried before descending, at the bidding of 
 the law, from the Bench; it is reported in 7 Johnson's C. 
 Hep. 332, and the question is discussed with the great chan- 
 cellor's usual learning and ability. See, also, 1 Swanst. 207; 
 15 Yesey, 138; 6 Johnson's 0. Eep. 497; 1 Johnson's C. 
 Eep. 318; Eden on Injunction, 229; 1 Paiige, 97. 
 
 It is, however, contended by counsel for the defendant in 
 error, that granting to a court of chancery the right to enjoin 
 trespasses, in cases of irreparable injury, yet the interference 
 of that court is limited to cases where the title of the com- 
 plainant is not questioned by ihe answer, and inasmuch as 
 this answer sets up title in the defendants, the injunction was 
 rightfully dissolved. Where injunctions have been granted 
 
MooEE V. Fejbeell. 287 
 
 to stay waste, as before stated, the cases have been founded 
 on privity of title; and in such cases no question as to title 
 could be "made. The distinction, so far as the jurisdiction of 
 chancery is concerned, between waste and trespass, has been 
 broken down. Now injunctions will be granted against waste 
 and trespass (6 Johns. 0. Eep. 497), but aij;ainst trespass in 
 the cases before designated, and in all such cases, whether the 
 title be brought in issue or not. 
 
 It seems, however, that where the complainant's title is 
 denied, the courts will look more closely to the character of 
 the trespass. In several of the cases relied upon by counsel 
 for plaintiff in error, as shown by the comments of counsel for 
 the defendants, there was no issue made about title. In other 
 cases the title of the complainant was denied, or the defend- 
 ants, justified under an adverse title, or a legislative or pre- 
 scriptive right. In the case of 7 Johns. C. Rep. the defend- 
 ants, who were charged with trespassing on tlie land of tlie 
 complainant in digging stone and other material to con- 
 struct a dam on the Hudson, sought to justify by claiming, 
 ill their answer, that they were acting on behalf of the State, 
 and by authority of its statute laws. 
 
 The case in Hill's C. Rep., in its facts and doctrines, strik- 
 ingly sustains the position taken by this court. In that case 
 the bill was filed to stay trespass in cutting down and remov- 
 ing timbers from the complainant's land, near to Columbia, and 
 charged to be valuable only for the firewood that was on it. 
 
 The defendant in his answer admits the alleged trespass, 
 but insists that he has a perfect legal and equitable title to 
 the premises. Here both parties claim the title. The chan- 
 cellor granted the injunction, and upon appeal his decision 
 was affirmed. In other cases, particular reference to which is 
 not necessary, a similar state of facts is presented. Mr. Jus- 
 tice Stokt, in commenting upon this head of equity jurisdic- 
 tion says: "The interference of courts of equity in restraint 
 of waste was originally confined to cases founded in privity 
 of title, but at present the courts have, by insensible degrees, 
 enlarged the jurisdiction to reach cases o{ adverse claims and 
 rights, not founded in privity; as, for instance, to cases of 
 trespass attended, with .irreparable mischief": 3 Story's Com. 
 on Equity, 200. The point made by the defendant's counsel 
 is met by this renowned commentator and in terms denied. 
 
288 Injunction-. 
 
 The reasons for giving to courts of equity, in our own State, 
 this salutary jurisdiction, are conclusive, and apply with equal 
 force nowhere but in countries where mines of the precious 
 metals abound. They are found in the number and value of 
 our gold mines, the facility with which, in a very short space 
 of time, incurable injury may be done to the property, tlie im- 
 possibility, in almost every case, of demonstrating by proof at 
 law the extent of the damage, and in those temptations which 
 gold alone can offer to the cupidity of the lawless. It is no 
 answer to say that an injunction may work ruin to an honest 
 owner. The withholding it will more frequently work ruin 
 to honest owners. Besides, the defendant is protected by the 
 injunction bond. Upon reason and authority, therefore, this 
 court determines that the jurisdiction in courts of equity to 
 restrain trespass in all cases like the present, is fully established, 
 and the order of the circuit judge dissolving the injunction 
 must be reversed. 
 
 McBrayer et al. v. Hardin et al. 
 
 (7 Iredell Eq., 1. Supreme Court of Norlh Carolina, 1850.) 
 
 Distinction between mining, and other injnnction cases. Injunctions 
 to prevent persons from workini? a gold mine to which the plaintiff 
 claims title, are not put upon the same footing with injunctions to stay 
 execution on judgments at law, where the legal rights of ther parties 
 have been adjudicated. In the former class of cases, where it appears 
 that if the defendants' allegations be true the injunction can do them 
 no harm, but if plaintiff's allegations be true, he may sustain an irre- 
 parable injury— the injunction should be continued to the hearing, that 
 the facts may be investigated. 
 
 Appeal from the Court of Equity of Cleaveland County, at 
 the Fall term, 1849, his Honor, Judge Ellis, presiding. 
 
 J. G. Bynum, for the plaintiffs, 
 
 G. W, Baxter and Landkes, for the defendants. 
 
McBeayer v. HAEDiif. 289 
 
 Peaeson, J. 
 
 The plaintiffs allege that in July, 1849, they leased from 
 the defendant, Joseph Hardin, for the term of five years 
 thence next ensuing, a tract of one hundred and fifty acres 
 of land, on which the said Hardin then resided, lying on the 
 waters of Little Hickory creek, in the county of Cleaveland, 
 adjoining the land of the widow Hogne, for the purpose of 
 hunting for gold and silver mines, and with the right and 
 privilege of working all the mines then known on the said 
 land, or that might be discovered during the term of the 
 said lease. The lease was reduced to writing and executed^ 
 and left with one Fullenwider for safe keeping, and the de- 
 fendant, Joseph Hardin, afterward got possession of it and 
 refused to return it. 
 
 The bill then states that afterward the defendants, Joseph 
 Hardin and William McEntire, Jefi'erson Hoskins, Edmond 
 flippy, John Roberts and Dial Hardin, under his authority, 
 entered on the land and have been working for gold, in 
 despite of the rights and remonstrances of the plaintiif, and 
 have done and are doing irreparable damage, by taking off 
 large quantities of gold, and working the mines in an unskill- 
 ful manner. The prayer is that the defendants may be en- 
 joined from working on the land included in the lease to the 
 plaintiffs, and for an account of the gold collected by the 
 defendants. 
 
 The defendant, Joseph Hardin, answered, but he submitted 
 to the decretal order, continuing the injunction until the 
 hearing, and his answer was not sent to this court. 
 
 The defendants, McEntire and Hoskins, admit that in the 
 month of August, 1849, with the consent of their co-defend- 
 ant, Joseph Hai'din, they worked on the land included in the 
 lease for a short time, and made some seven pennyweights of 
 gold each. They aver that they believed that the said Hardin 
 had full power and authority to put them in possession, but 
 being afterward informed by some of the plaintiffs that they 
 were entitled to all mining privileges under their lease, they 
 quit the land. before the bill was filed and have not since in- 
 terfered. ^ 
 
 The defendants, Rippy, Eoberts and Dial, positively deny 
 
 VOL, 711.— 19 
 
290 Injunction. 
 
 that they have ever worked for gold on the land 'included in 
 the lease made by Joseph Hardin to the plaintiffs. They say 
 it is true they have been working on land adjoining the land 
 of the said Hardin, but the land on which tliey have been 
 working belongs to the defendant, Roberts, and has been 
 riotorionsly in iiis possession for more than twenty years, and 
 never did belong to, or was in possession of the defendant, 
 Joseph Hardin, and is not included in the land leased by the 
 said Hardin to the plaintiffs. 
 
 The motion to dissolve the injunction was refused, and the 
 injunction was continued until the hearing, from which order 
 all of the defendants, except Joseph Hardin, appealed. 
 
 As to the defendants McEntire and Hoskins, they admit 
 that they worked a short time under the license of Joseph 
 Hardin after he had leased to the plaintiffs; but they say 
 they had left the land before the bill was filed, and liave no 
 intention further to interfere. Such being the case the in- 
 junction can do them no harm, and at the final hearing their 
 liability to account and their riglit to recover costs can be 
 investigated and passed on. 
 
 As to the defendants Rippy, Roberts and Dial, they say 
 the land on which they are at work is not included in the 
 lease to the plaintiffs. If this be true the injunction does 
 not interfere with them and will do them no harm. If it be 
 not true, and they are, in fact, working on the land of Joseph 
 Hardin, which he leased to the plaintiffs, then it is admitted 
 that they should be enjoined. If the defendants tell the truth 
 the injunction can do tiiera no harm; but if the truth is as 
 averred by the plaintiffs, a dissolution of the injunction would 
 be of serious injury to them. Hence it was necessary, under 
 the circumstances, to continue the injunction; by doing so 
 no harm is done on one side and the chance of doing injiiry 
 is avoided on the other. Injunctions of this kind are not 
 put on the same footing with injunctions to stay executions on 
 judgments at law, where the legal rights of the parties have 
 been adjudicated. 
 
 This opinion will be certified to the court below. 
 
 The defendants must pay the costs of this court. 
 
Anderson v. Harvey's Heirs. 291 
 
 Anderson v. Haetey's Heirs. 
 
 (10 Grattan, 386. Supreme Court of Appeals of Virginia, 1853.) 
 
 Adrerse possession under color of decree without deed— Temporary 
 occupancy, no disseizin. In 1807 a decree was ma.de that the holder 
 of a senior patent convey to the holder of a junior patent with equities, 
 the interfering ground (called an interlock) covered by both patents. 
 No deed was executed under this decree, but plaintiff went into and 
 continued to hold possession though without any actual occupation of the 
 interlock. There was no actual occupancy of the interlock until a pur- 
 chaser under the defendant in the decree entered and cut the timberin 
 1836: Held, that the title of the party holding under the decree was a 
 complete adverse possession to the extent of the limits of his patent, 
 including the interlock. 2. That the temporary occupancy to cut tim- 
 ber was no disseizin. 
 
 ' Deeds of same date construed together. The devisees of the senior 
 patent made on the same day two deeds to the same grantees in one of 
 which the ground covered by the decree was excepted and in the other 
 it was not: Held, that the two deeds were to be construed as one trans- 
 action and their effect was the 'same as if the exception had been men- 
 tioned in both. 
 
 Injunction withont ejectment. Injunction against a trespasser to prevent 
 his taking ore ought to issue in favor of a party in possession under a 
 clear title without requiring him to bring an action at law. 
 
 Taking ore, a destructive trespass. The taking of iron ore from land of 
 little or no value except for such iron ore, is a trespass going to the de- 
 struction of the estate. 
 
 Ascertainment of damages. The fact that the value of the ore taken could 
 be readily ascertained does not deprive a court of equity of its right to 
 interfere by injunction. 
 
 On the 12th day of December, 1785, a patent was issued to 
 David Ross for twelve hundred acres of land lying on Ca,tawba 
 creek, in the county of Botetourt; and on the 13th of May, 1786, 
 another patent issued to Eoss for four hundred and eighty 
 acres of land lying on the same creek. The boundaries of 
 these two tracts interlocked, and both covered the piece of 
 land which was the subject of controversy in this case. 
 
 lOn the 9th of June, 1787, a patent issued to Robert Har- 
 vey, assignee of Jacob Little, for three hundred and eighty- 
 four acres of land on Catawba creek; and on the 11th of 
 June, 1787, another patent issued to Harvey for twenty-one 
 
 ' Walker v. Tiffin Co., 2 Colo. 89; Post Mortoagb. 
 
292 Injunctioit. 
 
 hundred acres of land lying on the same creek. This patent 
 was founded on an inclusive survey which embraced two 
 tracts, one of three hundred and ninety acres, granted to 
 Dennis Getty in 1772, and the other of three hundred acres, 
 assigned to Harvey by James McGavock; and the residue, of 
 the tract was never before granted. Harvey seems to have 
 entered upon this land prior to 1807, and to have cleared a 
 part of it and biiilt a furnace upon it for making iron. 
 
 In 1803, Harvey filed his bill in the County Court of Bote- 
 tourt against K'jss, in which he charged that his patents were 
 founded on older entries and surveys than Koss' patent for 
 twelve hundred acres, and that Ross, with full knowledge of the 
 plaintiff's claims, had fraudulently procured that patent, which 
 comprehended a large portion of the tracts of three hundred 
 and eighty-four acres, embraced in this patent, and he prayed 
 that Koss might be compelled to convey to him the land 
 included in his patent for .twelve hundred acres, which was 
 covered by the plaintiff's patents. Koss answered the bill, 
 stating that in making his entries and surveys be relied en- 
 tirely on the survej'or of the county; that there was no at- 
 tempt to hurry through the proceeding, and that he knew 
 nothing of the claims of the plaintiff set up in the bill. The 
 cause came on to be heard on the bill, answer and exhibits, 
 the latter of which were Harvey's patents and copies of en- 
 tries, when the court made a decree that Uoss should convey 
 to the plaintiff with special warranty all the lands compre- ' 
 hended within the bounds of the plaintiff's patents for three 
 hundred and eighty-four and twenty -one hundred acres, that 
 were comprehended within the bounds of Ross' patent for 
 twelve hundred acres, and that the plaintiff be quieted in the 
 possession thereof. Nothing seems to have been done under 
 this decree. Harvey continued in possession of his tract of 
 twenty-one hundred acres up to the time of his death, in 1831, 
 and there is some evidence, though it is rather doubtful, that 
 he, at one time, took some iron ore from the laud in con- 
 troversy. 
 
 Ross acquired several other tracts of land adjoining the 
 tract of twelve hundred acres, making in all between seven 
 and ten thousand acres; but the precise boundaries or location 
 of these several tracts do not seem to have been known with 
 any certainty. He died in 1817. 
 
AxDEKsoN V. Hakvey's Heies. 293 
 
 Previous to July, 1834, "William Ross seems to have ac- 
 quired a right to the tract of twfelve hundred acres patented 
 as before stated to David Eoss, and he had purchased of Mc- 
 Donald and wife, one of the heirs of Eobert Harvey, a small 
 tract of one hundred and sixty-four acres adjoining thereto; 
 and on the 16th of July, 1834, he conveyed these lands to the 
 Catawba Iron "Works Company. In this deed the twelve hun- 
 dred acre tract is conveyed as follows: " So much of a tract 
 of twelve hundred acres of land, originally patented to David 
 Eoss, by patent bearing date the 12th day of December, 1785, 
 as is now owned by the said "William Eoss, being all that 
 part of the said tract not decreed to Eobert Harvey by a de- 
 cree rendered by the County Court of Botetourt, in the year 
 1807, in a cause therein depending between the said Eobert 
 Harvey as plaintiflF, and the said David Eoss, defendant;" 
 and then the boundaries of the whole tract are given. Will- 
 iam Eoss did not have tiie legal title to this land; and by 
 deed bearing date the 12th day of August, 1834-, Frederick A. 
 Eoss, as executor and devisee of David Eoss, and the other 
 devisees of David Eoss, conveyed this tract of land to the 
 Catawba Iron "Works Company, by the same description as that 
 contained in the deed from "William Eoss. By deed of the 
 same date the executor and devisees of Eoss conveyed to the 
 same company all the lands on Catawba creek and its 
 branches, which they derived from David Eoss. These tracts 
 are enumerated in the deed and described by the quantity and 
 date of the survey, with a general reference for a more par- 
 ticular description of the several tracts to the records in the 
 surveyor's office. The number of tracts was twenty-two; and 
 the whole quantity, as stated in the deed, eight thousand five 
 hundred and twenty-nine acres. 
 
 The Catawba Iron "Works Company having become very 
 much embarrassed, by deed bearing date the 14th of August, 
 1840, conveyed all its property in trust for its creditors. This 
 deed described the lands of the company as " one tract in the 
 county of Botetourt, on the waters of Catawba creek, con- 
 taining twelve hucdred acres, be the same more or less; it be- 
 ing the same land purchased in part by "William Eoss from 
 the representatives of David Eoss, and conveyed by Frederick 
 A. Eoss, executor of David Eoss, to the company, and in part 
 
294 Injunction. 
 
 of the land purchased by William Boss of McDonald, one of 
 the devisees of Harvey; also oneotlier tract lying, etc., ma'de 
 up of several smaller tracts formerly owned by David Eoss 
 and conveyed by Frederick A. Eoss, ejfecutor, etc., to the com- 
 pany, containing between seven and ten thousand acres." 
 
 A suit in equity having arisen out of the last mentioned 
 deed, in the Circuit Court of Botetourt, the land was sold un- 
 der a decree of that court, and the commissioners, by their 
 deed bearing date the 10th of December, 1847, conveyed the 
 land to the purchasers, Willjatn S. Triplett, executor of John 
 E. Triplett, and Peachy E. Grattan, executor of D. I. Burr, 
 they being the creditors entitled to the proceeds of the sale. 
 This deed recites the decree directing the sale, and conveys all 
 the real estate which belonged to the Catawba Iron Works 
 Company, and which was conveyed by that company to 
 trustees as aforesaid, and the land is described as in that deed. 
 By anbther deed bearing date the 11th day of January, 1848, 
 these executors and the devisees of David I. Burr and John E. 
 Triplett conveyed to Joseph E. Anderson, John T. Anderson 
 and William JS". Anderson, these same lands as embraced in 
 the deed from the Catawba Iron Works Company to trustees as 
 aforesaid, and which were afterward sold by commissioners 
 under the decree of the Circuit Court of Botetourt, and con- 
 veyed by them to the said executors. And John T. and Will- 
 iam N. Anderson in December, 1848, conveyed their interest 
 in these lands to Joseph E. Anderson. 
 
 In 1849 Joseph E. Anderson, being engaged in making iron 
 at the furnace on the lands aforesaid, commenced to raise ore 
 from a mine situate on a part of the land included within the 
 boundaries of the patents for twelve hundred and four hundred 
 and eighty acres, which had been issued to David Eoss as be- 
 fore stated, and which was also included within the bounda- 
 ries of the patent to Harvey for twenty-one hundred acres. 
 And thereupon the devisees of Harvey applied to the Circuit 
 Court of Botetourt county for an injunction to restrain him 
 from raising ore within the boundaries of their said tract of 
 land. In their bill they set out their original title to the land 
 and the decree of the County Court of Botetourt of 1807. They 
 charge that soon after said decree, Harvey took possession of 
 the land covered by his patent and that of Eoss for twelve 
 
Andeeson V, Harvey's Heirs. 295 
 
 hundred acres, and took ore from thence for the supply of his 
 furnace, and that he held peaceable possession of it until his 
 death, in the year 1831. Tliey say that it does not appear that 
 Koss ever executed the deed directed, by the decree of 1807, 
 but that in all the conveyances of the tract of twelve hundred 
 acres by the heirs of Ross and those claiming under them, the 
 rights of Harvey under his patent and tiie decree aforesaid 
 are expressly recognized and reserved. They therefore pray 
 for an injunction to restrain Anderson and his agents from 
 raising ore on said land until the rights of the parties may be 
 determined by proper legal proceedings, and for general relief. 
 The injunction was granted. 
 
 Anderson demurred to the bill and also answered. He said 
 that he received a conveyance for the land with general war- 
 ranty, and deemed it unneces.-ary, therefore, to make any par- 
 ticular examination of the title. That by the conveyances to 
 him he was invested with the legal title to the lands and ore 
 bank claimed by the plaintiifs, and tliat in these deeds there 
 was no reference to tlie decree of 1807. Tiiat he had never 
 heard of that decree or that Harvey or his devisees liad ever 
 set up a claim to any portion of tiie lands which he had 
 purchased and whieli had been conveyed to him, as hereinbe- 
 fore mentioned, until shortly before tlie institution of this suit. 
 That, he had never seen the deeds in which this decree is re- 
 ferred to until this suit was commenced; and he denies tliat 
 the grantors in these deeds recognize any right in Elarvey 
 under said decree; they only recognize the existence of the 
 decree. That he holds the ore bank and lands in controversy 
 under the other deed executed by the executor and devisees 
 of David Ross, which conveys the tract of foar hundred and 
 eighty acres, and which includes the ore bank. He denies 
 that Harvey took possession of the land in controversy shortly 
 after the rendition of the decree, and he believes he never 
 did take possession of it, or that he took any ore from the 
 mines within the interlock at any time previous to 1829. 
 Thatprobably, after 1828, his furnace was supplied in part with 
 ore taken from thence in 1829 and 18-30, but he had ceased to 
 take it for more than a year before his death, in 1831. Tliat 
 this was not raised by Harvey or persons under his direc- 
 tion, but by persons from whom he bought the ore by the 
 
296 Injunction-, 
 
 load and who raised the ore wherever they chose to get it, 
 whether on Harvey's or the adjoining lands; and that in fact 
 a large portion of the ore used by Harvey at his furnace was 
 taken from lauds of E,oss to which Harvey never pretended to 
 have any title. That the Catawba Iron Works Company took 
 possession of the land in controversy under the patent to 
 David Koss and the conveyance totliem; tliat they cut a large 
 portion of the timber off the land and coaled it upon the land 
 within the bounds of -the interlock and within a few yards 
 of the ore bank in controversy. 
 
 The defendant further answering insisted tliat the decree of 
 1807 conferred no title on tlie plaintiffs to the land in contro- 
 versy. That unless it could be carried into execution it was a 
 mere nullity, and whether it could be executed could only be 
 ascertained by the plaintiffs' filing a bill against the represent- 
 atives of Koss to enforce it. That the decree was illegal and 
 erroneous and onght never to have been pronounced, as was 
 apparent from the record of the cause which he exhibited. 
 That he was a ionajide purchaser without notice of the plaint- 
 iffs' claim; and having the legal title and at least equal equity, 
 his was the better right, and ought not now to be disturbed 
 after the plaintiffs had slept upon their rights, if they had any, 
 for more than forty years. 
 
 By a survey made in the progress of the cause, it appeared 
 that the line of Plarvey's tract of twenty-one hundred acres 
 included the ore bank in which the defendant had raised ore 
 by a few feet. And it appeared from the testimony, which 
 was voluminous, that ore had been raised at this place by per- 
 sons who sold ore to Harvey, and probably, though this is 
 somewhat uncertain, that at one time persons in the employ- 
 ment of Harvey raised some ore at the same place. It was 
 proved that in 1836 or 1837 the Catawba Iron Works Company 
 cut the wood off the land in the interlock and there converted 
 it into coah No person in the neighborhood seems ever to 
 have heard of the decree of 1807. . 
 
 The cause came on to be heard in April, 1850, when the 
 court held that the rights of Harvey and Ross to the land in 
 controversy were settled by the decree of 1807. That this de- 
 cree equally effected any rights to this land which Ross may 
 have had under his patent for four hundred and eighty acres. 
 
Andeesost v. Harvey's Heie^. 297 
 
 That as Harvey and those claiming under him, had been in 
 possession of the tract of twenty-one hundred acres ever since 
 said decree, operating a furnace situate upon it during a large 
 portion of the_time, they mnst be regarded as in possession of 
 the interlock as part of the said tract, even if it was not proved 
 that tliey had actual possession, at any time, of the said inter- 
 lock, until an adverse possession of floss or those claiming 
 under him was proved. That the acts relied on by the defend- 
 ant to prove adverse possession did not amount to an ouster 
 of the heirs of Harvey, and that they must be considered as 
 in possession when the defendant entered upon the land, and 
 that they were entitled to the protection of the court to avoid 
 the injury complained of in the bill. It was therefore decreed 
 that the injunction be perpetuated with costs. From this 
 decree Anderson applied to this court for an appeal, which 
 was allowed. 
 
 J. T. Anderson and Miohie, for the appellant. 
 
 Baxter, for the appellees, 
 
 Daniel, J. 
 
 The bank or mine of iron ore, to restrain an alleged tres- 
 pass on which the injunction in this case was allowed, is, 
 according to the surveys and testimony in the cause, situated 
 in the interlock caused by the interference of the bounds of 
 Harvey's patent for twenty-one hundred acres, granted on the 
 11th day of June, 1787, with those of Koss' patent for twelve 
 hundred acres, granted on the 12th day of December, 1785, 
 and is therefore clearly embraced by the terms of the decree 
 pronounced on the 10th of February, 1807, by the County 
 Court of Botetourt in the case of Harvey v. Ross. That 
 decree has never been reversed, and, so far as the proofs in 
 the cause show, its force and validity were never denied by 
 Ross in his lifetime. Indeed no question as to the correct- 
 ness of the decree, or as to the right of the County Court of 
 Botetourt to make it, ever seems to have been made before 
 the commencement of this suit. On the contrary, in the 
 deed of the 12th of August, 1834, made by F. A. Boss, exec- 
 
298 Injunction. 
 
 utor and devisee, and Myers and others, also devisees of Da- 
 vid Ross, and also in the deed of "William Ross and wife of 
 the 16th July, 1834, to the Catawba Iron Works Company 
 (under whom the appellant claims), conveying the several 
 interests of the parties in the twelve hundred acre tract, 
 express reference ifi had to the decree, and each deed pur- 
 ports to convey only so much of the tract as was not decreed 
 to Eobert Plarvey by said decree. 
 
 On the same day on which F. A. Ross, executor, etc. and oth- 
 ers executed the deed above mentioned, to wit, the 12th August, 
 1834, they also made another deed to the Catawba Iron Works 
 Company, conveying, with special warranty, " all their lands 
 on the Catawba creek, etc., being the lands which David Ross 
 had title to at his death, and of which his heirs or executors 
 were seized at his death," etc. In the description of the lands 
 intended to be conveyed is embraced "four hundred and 
 eighty acres, surveyed March 25, 1785." 
 
 A patent founded oh this survey was issued to Ross on the 
 13th of May, 1786. The interlock before mentioned, as ap- 
 pears from the survey and other proofs in the case, is also cov- 
 ered by this patent. No mention, however, of this patent, is 
 made in the decree of 1807, nor in any of the proceedings in 
 the suit in the County Court of Botetourt. 
 
 Still as the decree directed Ross to convey to Plarvey all 
 the lands comprehended within the twenty-one hundred acre 
 patent that were also comprehended in the twelve hundred acre 
 patent, it is difficult to conceive how he could ever have made 
 any opposition to the decreej or to any rights claimed under 
 it, by showing that he held, at the time the decree was ren- 
 dered, another patent covering the interlock, subsequent in 
 date and consequently necessarily inferior, as an evidence of 
 title, to the one which the court had declared insufficient to 
 protect him against Harvey's superior equity. The decree di- 
 rected the interlock to be conveyed, and whatever effect the 
 decree had to deprive lioss of, or render inoperative the title 
 he had disclosed and relied on, afoHiori it had in respect to a 
 younger and inferior title which he had not thought proper to 
 disclose. 
 
 The two deeds of the 13th August, 1834, made between 
 the same parties and contemporaneous in date, must be re- 
 
Andeeson v. Harvey's Heirs. 299 
 
 garded as parts of one transaction, and as constituting in law 
 one entire deed. Though, therefore, the deed in wliich the 
 four hundred and eighty acre survey is conveyed makes no 
 exception of the part thereof vehich was embraced within the 
 bounds or the twenty-one hundred acre pate^nt, yet as tlie deed 
 conveying the twelve hundred acre tract does make the ex- 
 ception of it in excepting all which had been decreed to be 
 conveyed to Harvey, the effect of the two deeds taken together 
 is to except out of the grants in each, the land in question, as 
 fully as if the exception had been expressed in terms in each 
 deed. 
 
 It is in proof that Harvey took possession of a portion- 
 of his tract of twenty-one hundred acres as early as in 
 the year 1805, and that he continued to occupy, cultivate 
 and otherwise enjoy it as owner till his death, in 1831; and 
 this possession has been continued by his representatives ever 
 since. It is also proved that in the years 1828 and 1829 he 
 obtained ore from the land in question for the purpose of 
 operating his furnace. Apart from this latter proof, the 
 occupation of a portion of his tract by Harvey and those 
 claiming under him, and the continued use and enjoyment 
 thereof, accompanied by the notice which his suit in the 
 County Court of Botetoutt gave of the extent of his claim, 
 constituted, in the absence of an> -proof of an adversary pos- 
 session by Ross and those claiming under him, of the portion 
 of land in dispute, an adversary possession of all the land 
 within the limits of his patent. And this possession, without 
 calling in the aid of any presumption that Ross had executed 
 a deed for the land which the decree had directed him to con- 
 vey, had ripened into a full and perfect title long before the 
 year 1836, when the Catawba Iron Works Company com- 
 menced converting into coal, wood upon a portion of the in- 
 terlock: Taylor v. Burnsides, 1 Gratt. 165; Ooerton's Heirs 
 V. Davisson, Ibid. 211. 
 
 This temporary possession by the comijany for the purpose' 
 above mentioned, commenced in 1836 and abandoned in 1837 
 or 1838, eould not operate to disseize Harvey's representatives 
 of the land in question : Pasley v. English, 5 Gratt. 141. 
 
 "When, therefore, tlie deed of trust of the 14th August, 1840, 
 was executed by the company, they had no possession, actual . 
 
300 Injunction, 
 
 or constructive, of the ore bank in controversj'. But the said 
 bank was in the exclusive adversary possession of the appellees 
 claiming and holding it by a perfect title. The deed of tlie 
 company, therefore, could convey no shadow of right to the 
 ore bank in dispute as against the appellees. The only effect 
 it can have on their rights is, on the contrary, one of a benefi- 
 cial character; inasmuch as it served to notify all claiming 
 imder it that the right to the land in controversy was never in 
 the company, bub resided with the Harveys. The description 
 of tl;e land intended to be conveyed, expressly referring to the 
 deed of the Eopses, heretofore mentioned, in which the excep- 
 tion in favor of Harvey is made. The deed from Francis T. 
 Anderson and A. P. Enkridge, commissioners,'etc., of the 10th 
 December, 1817, has a like reference to the deed executed by F. 
 A. Eoss, etc., for the twelve hundred acres; and though the 
 deed from Grattan and Tri])lett, etc., the purchasers at the 
 commissioners' sale, to the appellant and John T. and William 
 ]N^. Anderson, has no such reference, yet it has a reference to 
 the deed executed by the commissioners and also to the decree 
 under which they sold. 
 
 I think it is clear, that at the time of the alleged trespass on 
 the ore bank by the appellant, the appellees must be regarded 
 as in possession of it with a clear and incontestable title. 
 They might have instituted their action of trespass against 
 the appellant; but were they bound to do so before, or instead 
 of applying to a court of equity to restrain the appellant from 
 committing further trespass on the property in dispute? Were 
 they bound to litigate and discuss in a court of law rights 
 which had not only been adjudicated as far back as 1807, but 
 which had been solemnly recognized in the conveyances to 
 which the appellant must necessarily refer as the sources of 
 any title which he could assert? I think not. The practice 
 of courts of equity of interfering in such cases by way of in- 
 junction, is one comparatively of recent origin; but the juris- 
 diction is now fully recognized and well established by cases 
 both in England and America: Mitchell v. Dora, 6 Ves. R. 
 \^1 \ Hanson v. Gardiner, 7 Ves. E. 305; Thomas v. Oakley, 
 18 Ves. E. 184; 3 Daniell's Ch. Pr., 1852-3; Stevens v. Beek- 
 man, 1 John. Ch. E. 318; Jerome v. Ross, 7 John. Ch. E. 315; 
 Smith V. Pettingill, 15 Venti. E. 84. 
 
Boyle v. Laied. 301 
 
 The land upon which the trespass is alleged to be com- 
 mitted is proved to be of little or no value, except for the iron 
 ore found on it, which is proved. to be of an excellent quality. 
 The trespass is one which goes to the change of the very 
 substance of the inheritance, to the destruction of all that 
 gives value to it. The fact proved by the appellant that the 
 value of the ore per load could be readily Estimated, does not 
 deprive a court of equity of its right to interfere in the case 
 by way of injunction. The same might be shown in most 
 cases of the kind. The products of most mines have a value 
 already fixed or easy of ascertainment by proof; yet it was in 
 prevention of like trespasses to this very species of property, 
 mines of ore, coal, etc., that the jurisdiction in question had 
 its origin, and still continues to be most frequently exercised. 
 
 I see no error in the decree of the circuit court, and think 
 it should be affirmed. 
 
 Allen, Moncuee & Lee, JJ., concurred in the opinion of 
 Daniel, J. 
 
 Samuels, J., dissented. 
 
 Decree affirmed. 
 
 Boyle et al. v. Laied et al. 
 
 (2 Wisconsin, 431. Supreme Court, 1853.) 
 
 Lessees protected against trespassers— Writ expires with lease. A 
 
 party claiming the right to work lead mines as a leasee may be protected 
 against a trespasser by injunction, but after the lease has been termi- 
 nated by a sale of the premises the lessees have no longer any rights to 
 protect, and although the- lease contains a general covenant for renewal, 
 the bill for injunction should be dismissed. 
 
 Conreifance, pending trial. Where plaintiffs have parted with their in- 
 terest in tlie subject matter, the suit can not proceed until the proper 
 parties are substituted, if the objection be insisted on. 
 
 General relief. General relief should not be granted on a bill praying only 
 the issuance of an injunction. 
 
 The bill filed in this case charges the defendants with tres- 
 pass and waste upon a certain lot of land in the possession of 
 the complainants as lessees, by digging and taking lead ore 
 
302 Injunction. 
 
 thereout, and converting the same to their own use. An in- 
 junction was prayed for and granted, and the defendant Boyle 
 answered, denying the' material charges of the bill. 
 
 Tlie cause being submitted, on replication Jiled, the court 
 decreed that the defendants should be perpetually enjoined 
 from interfering with the rights of the complainants. 
 
 To reverse this decree, the defendants ap])eal to this court. 
 
 Dunn, Collins & Smith, for appellees. 
 J. H. Knowlton, for appellants. 
 ) Ceawfobd, J. 
 
 The bill of complaint in this case was filed to obtain a writ 
 of injunction to restrain the defendants from committing waste 
 upon a certain lot of land in the possession of the complain- 
 ants as lessees of Daniel G. Whitney. The land is situate in 
 the county of La Fayette and was held and enjoyed by the 
 complainants, at the time of the filing of the bill, for tlie pur- 
 pose of mining for lead ore thereon. The right of the com- 
 plainants to the occupancy and use of the lot was derived 
 from a lease given to them by the above named Whitney by 
 his attorney in fact, John Burrell, which lease was to con- 
 tinue for tiie term of one year from the date thereof subject 
 to be renewed, provided the land did not " change owners." 
 
 The date of the lease was the 26th day of January, 1850, 
 and the bill of complaint was filed on the loth day of April 
 next thereafter. The material charge in the bill is that the 
 defendants had before that time illegally entered upon the 
 Iqt in question and had taken away and disposed of large 
 quantities of lead ore from the "diggings " of the complain- 
 ants, and were then engaged in illegally removing and con- 
 verting to their own use large quantities of lead ore of great 
 value, to the great injury of the complainants. 
 
 The prayer of the bill was for a writ of injunction to stay 
 and prevent the commission of further " waste and spoil " on 
 the premises, and that the same, on a final hearing, might be 
 made perpetual. 
 
 The court commissioner of La Fayette county allowed a 
 writ of injunction, as prayed for, which was issued. 
 
Boyle v. Laied. 303 
 
 The defendant Thomas Boyle filed an answer denying the 
 material charge of the bill, and the other defendants (Tierney, 
 Harkin and Meloy), being severally under the age of twenty- 
 one years, put in the usual answer by their guardian ad litem. 
 A replication to these answers was filed, and the cause was 
 heard in the Circuit Court of the county of La Fayette at the 
 October term, 1851, and at the March term, 1852, a decree 
 was rendered, declaring the complainants to be lessees of the 
 lot described in the bill of complaint, and perpetually enjoin- 
 ing the defendants from interfering With or molesting the 
 complaipants in the enjoyment of the said lot. 
 
 The proofs submitted on the hearing, whatever they may 
 have been, have not been preserved or returned to this court, 
 but a stipulation as to the facts proved at the hearing has 
 been signed and filed here, from which we find that during 
 the continuance of the lease to the complainants the defendants 
 did enter upon the premises and dig and take lead ore there- 
 from, and convert the same to their own use; that Burrell, the 
 attorney in fact of Whitney, had, during the year 1850 and 
 within the term specified in the lease, purchased the tract of 
 land on which this mining lot was situated, from Whitney 
 and was, at the time of the hearing, the owner of said land; 
 that he (Burrell) had not, since' the 26th day of January, 
 1851, received any rent from the complainants, or either of 
 thein, and since that date had not recognized or treated them, 
 or any of them, as tenants or as having any right on said 
 land; that the lease to the complainants had not been re- 
 newed, and he did not intend to renew it. 
 
 Independent of the objection that many of the material 
 averments in the bill, which are admitted by the answer of 
 the defendant Boyle, are entirely without proof as against the 
 infant defendants^ we can find nothing in the case to sustain 
 the detree of the court below. At the time of the filing of 
 the bill, these complainants were lessees of the premises, but 
 before the casue was brought to a hearing, their character of 
 lessees had ceased, and they had, at the time of the hearing, 
 no right or interest in the premises whatever, as appeared 
 from the testimony of the owner of the soil. It is true the 
 lease contained a provision for renewal, but upon what 
 terms and'for what length of time the lease should be 
 
304 Injunction. 
 
 renewed, it is altogether silent, and we think that this provis- 
 ion or covenant is void for uncertainty, as it appears in tlie 
 lease, and there is nothing in the evidence before us which 
 enables us to render it certain. This principle is fully dis- 
 cussed and established in the following. cases: Blarjden v 
 Bradlear, 12 Vesey,466; Clinan et al. v. Coolce et al., 1 Sell. 
 & Lef. 22; Bromley v. Jeffries, 2 Verm. 415; Bailey et, al. 
 V. Ogden et al., 3 John. 399; Clerk v. Wright, 1 Atk. 12. 
 
 Besides, the renewal was to depend on the fact of the own- 
 ership of the land remaining unchanged, and the proof 
 shows that tlie land has been sold and conveyed by the lessor, 
 "Whitney, to the witness, Burrell, during the term for which 
 the lease was granted. 
 
 The question, then, is whether the complainants are entitled 
 to the relief which is prayed for in the bill, when it is shown 
 tliat th,ey have ceased to have any interest in the premises to 
 which the injunction extended. While they were lessees, 
 they might, in a proper case, invoke the protection of a court 
 of equity, to prevent waste or irreparable injury; but when not 
 only the defendants, but the complainants themselves, have no 
 right, title or interest whatever in the land covered by the 
 injunction, it would, we think, be a useless application, nay, 
 a prostitution of the powers of the court. The complainants 
 have no rights to be invaded or protected, although when the 
 bill was filed they had such rights. 
 
 The general rule is that the parties really in interest must 
 be before the court; and if a complainant or complainants (if 
 there be more than one) after the commencement of the suit 
 parts with his or their intfSrest in the subject, by assignment 
 or otherwise, the suit can not be proceeded in until the proper 
 parties are brougiit in, if the objection be urged: Williams v. 
 Kinder, 4 Yesey, 387. The defendant, in such case, may 
 apply to the court for an order that the assignee or party in 
 interest file a supplemental bill, in the nature of a bill of 
 review, by a certain day, or in default tiiereof that the bill be 
 dismissed: Oa^r v. Gomez, 9 Wend. 649. 
 
 We are satisfied that in this case the court should not have 
 rendered a decree perpetuating the injunction, and it could 
 have rendered no other relief because tliat was the specific 
 relief prayed for, and the rule is well settled that when some 
 
Waldeon v. Marsh. 3C5 
 
 specific relief is prayed and is not accompanied with a prayer 
 for general relief, if the whole case made will not justify the 
 granting of the particular relief applied for, the bill must be 
 dismissed, although the complainant may have been entitled 
 to some other aid: Yide 13 Vesey, 119; 2 Young & Jarvis, 
 33; 1 John. Ch. R. 117; 2 Peters, 595; 1 John. 559; 2 Paige, 
 396. 
 
 The proper course to have been pursued by the court below 
 was to dismiss the bill without costs; for it was shown that 
 the defendants had committed trespass, if not waste, on the 
 premises during the complainants' term. 
 
 The decree below must be reversed and the bill dismissed 
 without costs, and without prejudice to the rights of the com- 
 plainants to bring an action at law for the lead ore taken by 
 the defendants, as they may be advised. 
 
 Reversed. 
 
 WALDEOlir ET AL. V. MaRSH ET AL. 
 
 (5 California, 119. Supreme Court, 1855.) 
 
 Trespass— Irreparable injury. An injunction will not be granted in aid 
 of an action of trespass, unless it appear that the injury will be irrep- 
 arable, and can not be compensated in damages. 
 
 ' Sufficiency of affidavit alleging irreparable injury. It is not sufficient 
 that the affidavit should allege that the injury will be irreparable; it 
 must be shown to the court how and why it would be so; otherwise the 
 extraordinary remedy of injunction will not be allowed, especially where 
 no action has ever determined the plaintiff 's right. 
 
 Appeal from the District Court of the Tenth Judicial Dis- 
 trict, Nevada. County. 
 
 The facts appear in the opinion of the court. 
 
 Feancis J. Dunn, for appellants. 
 
 Seaeles & Tweed, for respondents. 
 
 1^0 briefs on file. 
 
 'Compare Crisman v. Heiderer, 5 Colo. 539; Anderson v. Harvey, 7 M. 
 R. 291; Moore v. Ferrell, 7 M. R. 281; Brown v. AsMei/, 16 Nev. 312; 
 Thorn v. Sweeney, 7 M. R. 564; Henshaw v. Clark, 14 Cal. 460 ; Post 
 TuEsrAss. 
 
 VOL. VII.— 20 
 
306 Injujsiotion. 
 
 Heydrnfeldt, J., delivered the opinion of the court. Mue- 
 EAY, G. J., concurred. 
 
 An injunction ought not to be granted in aid of an action 
 of trespass, unless it appear that the injury will be irrepara- 
 ble, and can not be compensated in damages. 
 
 In this case, how the cutting of a ditch through the plaint- 
 ifi's land would be such an injury I can not imagine. It is 
 not suiRcient that the affidavit alleges that the injury would 
 be irreparable; it must be shown to the court how and why 
 it would be so; otherwise the extraordinary remedy of injunc- 
 tion will not be allowed, especially where no action has ever 
 determined the plaintiff's rights. 
 
 The injunction in this case ought not to have been granted, 
 and the order dissolving it is affirmed. 
 
 Affirmed. 
 
 Smith v. The City Council of Rome. 
 
 (19 Georgia, 89. Supreme Court, 1855.) 
 
 ' Ri^ht of way— Stone. A gift of the right of way (the right to open a pub- 
 lic street) is not a gift of the rock and other inaterials within the bound- 
 aries of the way. 
 
 Waste — Practice. It has become ahnost a matter of course to grant an 
 injunction to stay waste. 
 
 Application for injunction. Decision by Judge Teippe, at 
 chambers, 27th June, 1855. 
 
 Wm. R. Smith prayed an injunction on the following facts: 
 He was the owner of a parcel of land within the corporate 
 limits of the city of Rome, upon which lot there is a valuable 
 stone quarry, worth $3,000, upon the bank of Etowah river; 
 also a valuable sand bank, worth $1,000; and the piece of land 
 is also of great value as a residence, viz., $2,500. Tiie mayor 
 and council of Rome quarried large quantities of rock from 
 the said land, removed trees therefrom, and thereby caused 
 irrepai-able injury to the lot. The bill alleged that Rome was 
 
 ' Highway notes, 7 M. R. 202. 
 
Smith v. The City Council of Eome. 307 
 
 a growing city, and tliat the value of tliis quarry was increas- 
 ing rapidly, and would be very great; that a part of the rock 
 is limestone, and will be immensely valuable for burning of 
 lime; that there is also a ferry landing on this lot, which 
 communicates with valuable land on the opposite side of the 
 river, and that the said corporation is' destroying the useful- 
 ness of the said ferry landing. The bill prayed for an injunc- 
 tion. 
 
 The mayor and council answered, that upon the application 
 of complainant, they had laid out two streets over his land, and 
 declared the same public streets; that they have only cut down 
 tliese streets so as to make them level and passable; and in so 
 dping have used the rock for macadamizing some of the streets 
 of the city, and building a few culverts; that the sand bank 
 alluded to is in the street. The value of the property was ad- 
 mitted, but the damage done denied; and especially that it 
 was irreparable. 
 
 The court refused the injunction, and this decision is as- 
 signed as error. 
 
 Weight, for plaintiff in error. 
 
 T. W. Alexander, for defendant in error. 
 
 By the court, Benning, J., delivering the opinion. 
 
 In this case, we assume that the answer is true. 
 
 The answer says, in substance, that the complainant gave to 
 the defendant the right to open two public streets through his 
 land; that the defendant, in the exercise of this right, opened 
 the two streets; that a "high rocky bluff" projects itself a 
 part of the way across the track of one of the streets; that the 
 defendant took from this bluff, at a point within the bound- 
 aries of the street, some rock, and used the rock in macadam- 
 izing the streets of Rome, and in building culverts; and that 
 the defendant claims the right thus to take and use such of 
 the rock as is within the boundaries of the street. 
 
 The first question therefore is whether the defendant has 
 this righf? 
 
 The gift, by the complainant to the defendant, was that of 
 the right of way over his land. It was no more than that. 
 
308 Injunction. 
 
 Is a gift of the right of way a gift of the earth, rock, trees', 
 and other materials which may happen to exist within the 
 boundaries of the way ? Is a gift of the right of way a gift 
 of all tlie gold that may exist beneath the service of the way, 
 the right to which is given? 
 
 In Goodtitle ex dem. Chester v. Alker and Elmes, 1 Bnrr. 
 143, Lord Mansfield said: '' 1 Ro. Abr. 392, Letter B. PI. 1, 
 2, is express, ' that the king has nothing but the passage for 
 himself and his people, but tlie freehold and all profits belong 
 to the owner of the soil.' So do all the trees upon it and 
 mines under it (which may be extremely valuable). The 
 owner may carry water in pipes under it. The owner may 
 get his soil discharged of this servitude or easement of a way 
 over it, by a writ of ad quod damnum." 
 
 And in Lade v. Shepherd, 2 Str. 1004, which was an action 
 by the owner for trespass done by the appropriation of a part 
 of a street which he had laid out on his land, the court say, 
 " It is certainly a dedication to the public, so far as the public 
 has occasion for it, which is only for a right of passage. But 
 it never was understood as a transfer of the absolute property 
 in the soil." 
 
 To the same effect is 2 Inst. 705; see Woolrych on "Ways, 5. 
 
 (1.) A gift, then, of the right of way, is not a gift of the 
 earth and other materials that may exist within the boundary 
 lines of the way, the right of which is given. 
 
 It follows that the defendant did not have the right to take 
 rock from the "rocky bluff" aforesaid, to be applied to the 
 macadamizing of the streets of Home, and to the building of 
 culverts. The defendant, no doubt, has the right to level the 
 bluff, so as to make the street passable the whole width of it. 
 In the right to make the street is implied the right to do this. 
 The defendant having the right to make the street, has a right 
 to do everything requisite to the making of the street. And 
 this is the limit of the defendant's right. The fragments of 
 rock that might result from the process of leveling the bluff, 
 would belong, not to the defendant, the owner of no more than 
 the right jof way, but to the complainant, the owner of the 
 soil. 
 
 The next and only other question is, whether the complain- 
 ant had the right to an injunction to stop tlie defendant i'rom 
 
Merced Mining Co. v. Fremont. 309 
 
 taking rock from the "rocky bluff" aforesaid, and applying 
 it to the uses of the city of Rome in macadamizing streets 
 and building culverts? (2.) And we think he had. Taking 
 rock for the purpose of applying it to the uses aforesaid, would 
 amount to the commission of waste: Com. Dig. Wast., D. 4. 
 And an injunction to stay waste has- become almost a matter 
 of course: Moore v. Fe'rrell et al., 1 Ga. 11; Eden on Inj. 
 198-9. 
 
 We think, therefore, that an injunction to prevent the de- 
 fendant from taking the rock, to be applied to the uses afore^ 
 said, should have been granted. 
 
 'Merced Mining Co. v. Fremont et al. 
 
 (7 California, 130. Supreme Court, 1857.) 
 
 'Appeal no supersedeas to injunction. Where an injunction has been 
 granted and an appeal is taken by the defendants from the order allow- 
 ing the injunction, the injunction is not dissolved nor superseded by the 
 appeal. 
 
 Uandamns to compel enforcement of injunction. Mandamus will lie to 
 the judge of the court below from whose court an injunction has issued 
 to compel his issuing attachment to enforce the injunction pending an 
 appeal thereon. 
 
 ' Proceeding in contempt to protect private riglits. Where the proceed- 
 ing by attachment for contempt is in substance to secure the rights of 
 the party injured (as in case of defendants continuing to mine while 
 under injunction), the court regards the substance and not the form, 
 and will issue mandamus to compel the court below to inquire into the 
 acts charged. 
 
 Application for mandamus to the Judge of the Thirteenth 
 Judicial District. 
 
 While the proceedings in this case were pending in the 
 court below the plaintiffs obtained an order granting an in- 
 junction which was accordingly issued. Erom this order the 
 defendants appealed to this court and gave an undertaking 
 for three hundred dollars. After the appeal was taken the 
 
 • S. C. post. 313. 
 
 ''Cited Hicks V. Michael, 15 Cal. 110; Slaughter House Cases,10 Wall. 
 232. 
 ' Vamandt v. Argentine Co., 7 M. R. 634. 
 
310 iNJUUfCTioir. 
 
 defendants continued the alleged acts of trespass enjoined by 
 the writ. The plaintiffs applied to the judge of tlie district 
 court for an attachment against defendants for a contempt of 
 court in disregarding tiie injunction. Tlie judge rejected the 
 application and refused to inquire into the acts charged. Tlie 
 plaintiffs then applied to this court for a mandamus to com- 
 pel the judge to issue the attacliment and proceed to inquire 
 into the acts alleged against tlie defendants. An alternative 
 writ was issued on the thirteenth day of February, 1857, re- 
 turnable on the twenty-third of the same month, wliich was 
 regularly served on the seventeenth. On the return of the 
 writ the plaintiffs moved this court to make the writ peremp- 
 tory. 
 
 BooBAEM, for petitioner. 
 
 The points made are stated in full in the opinion of the 
 court. (Cited Title IX, Oliap. 2, Practice Act; 8ea Insur- 
 ance Company v. Ward, 20 Wend. 588 ; Hart v. Mayor of 
 Alhany, 3 Paige, 381; Russell v. Elliott, 2 Gal. 245; People 
 v. Olds, 3 Cal. 167; People v. Bell, 4 Cal. 177; Common- 
 wealth V. Hampden, 2 Pick. 414; Johnson v. Randall, 7 
 Mass. 340; Tuolumne County v. Stanislaus County, 6 Cal. 
 440; Johnson v. Randall, 7 Mass. 340; Squier v. Gale, 1 
 Halst, 157; Kimiall v. Green, 2 Mete. 573; Ex parte Crane, 
 5 Pet. 190; People v. Judges of Washington, 1 Gaines, 511; 
 People V. Common Pleas, Coleman, 61; People v. Superior 
 Court, 10 Wend. 285; 5 Id. 114; Ex parte Chamberlain, 4 
 Cow. 49.) 
 
 BoTTS, contra. 
 
 No brief on file. 
 
 BuftNET-r, J., delivered the opinion of the court, Teeet, J., 
 concurring. 
 
 On the hearing of this motion the plaintiffs' counsel made 
 these six points: 
 
 "First, that tlie stay of proceedings granted or effected by 
 an appeal is only, as to further proceedings, working a change 
 
Merced Mining Co. v. Fkemont. 311 
 
 in the relative positions bf the parties and the property afi'ected 
 by the action, after appeal taken. Second, that the appeal is 
 taken only from the order granting the injnnction, and not 
 from the iujnnction itself, which remains in force until dis- 
 solved bj' the appellate court. Third, that if an appeal acts 
 as a supersedeas to the injunction, the injnnction, as a rem- 
 edy, is in effect abolished. Fourth, that the district judge had 
 no discretion to grant or refuse the order for an attachment 
 for the contempt, but was bound in law to issue it. Fifth, 
 that a mandamus will lie to compel him to do so, his refusal 
 not being the exercise of a discretionary power, and there 
 being no other adequate remedy. Sixth, that the writ of man- 
 damus will lie to compel a judge to punish a contempt when 
 the rights of parties are involved." 
 
 The first question raised by the facts of this case is this: 
 Did tlie appeal supersede the effect of the injunction? or, did 
 the injunction remain in full force pending the proceedings 
 on appeal? 
 
 Tlie stay of proceedings pending an appeal has the legiti- 
 mate effect of keeping them in tlie condition in wliich they 
 were when tlie stay of proceedings was granted; it operates 
 so as to prevent any future change in- the condition of the 
 parties. This would seem evident from the scope of the pro- 
 visions of chapter 2, Title IX, of our Practice Act. To render 
 an appeal effectual for any purpose, in any case, the undertak- 
 ing or deposit must be given, or made as provided in section 
 three hundred and forty-eight. In sections three hundred and 
 forty-nine to three hundred and fifty-two, inclusive, a stay is 
 granted by executing another and different undertaking. In 
 the three hundred and fifty-sixth section it is provided that in 
 cases not provided for in the sections above, the giving the 
 undertaking, or making the deposit named, in secEion three 
 hundred and forty-eight, shall stay proceedings in the court 
 below upon the judgment or order appealed from. 
 
 The language of this three hundred and fifty-sixth section is 
 general and would at first seem to include the appeal from an 
 order granting an injunction; but, upon an examination of 
 the provisions of sections three hundred and forty-nine to 
 three hundred and fifty-two, inclusive, it will be seen tiiat in 
 all those cases the party is required by the judgment or order 
 
312 Injunction. 
 
 to do some affinmative act, not to refrain from doing a thing. 
 Tliis act, if completed, would change the condition of the par- 
 ties and render a reversal of the judgment in the Supreme 
 Court partially ineffectual. But when a party is restrained 
 by injunction he is not injured in contemplation of law, as he 
 is already secured by the undertaking. If, on the contrary, 
 an appeal with an undertaking of tliree hundred dollars would 
 have the effect of staying the injunction itself, then the plaint- 
 iff would have no remedy, and the writ be idle. It would 
 entirely destroy the usefulness of this writ. A stay of pro- 
 ceedings, from its nature, only operates upon orders or judg- 
 ments commanding some act to be done, and does not reach a 
 case of injunction^ 
 
 That the distinction between cases mandatory and prohibit- 
 ory is correct, may be seeti from the exception to section three 
 hundred and fifty-six. If, then, the injunction remained in 
 full force, had the judge any discretion to issue or not to issue 
 the attachment? and if he had no discretion, but his duty 
 was positive, is a mandamus the proper remedy? 
 
 It would seem clear that, if the injunction was not affected 
 by the appeal, there must be some remedy for its violation 
 pending an appeal; for if there be no remedy for the wrong, 
 the right injured does not exist. No right can exist, in con- 
 templation of law, that can not be injured, and tliere can be 
 no injury without a remedy. Where, then, can this remedy 
 be found but in the district court? That court must protect 
 the parties in their substantial rights. . 
 
 As to the other question, whether the remedy is by man- 
 damus or appeal, we think there can be but little doubt. The 
 remedy by appeal is too slow, and is not adequate. The duty 
 to be performed is fixed by law, and certain. As to how that 
 duty is to be performed, this court will not direct. All we 
 can do by this writ is to direct the judge to exercise his dis- 
 cretion in inquiring into the acts charged, and rendering his 
 decision upon them. The decisions of this court have fully 
 settled some of these points: 3 Cal. 167; 4 Cal. 177; 2 Cal. 
 245. 
 
 It was urged, upon the hearing 'of the motion, that a man- 
 damus would not lie from this court to an inferior court in a 
 case of contempt. It is true that the proceeding is, in form, 
 
Mekced Mining Co. v. Fremont; 313 
 
 a case of contempt, while it is, in substance, a private right. 
 The law regards the substance . more than the form. From 
 the very nature and necessity of the case, the proceeding is' 
 designed to secure the rights of the party; this is his only 
 remedy. It is always upon his application that the action of 
 the court is invoked. 
 
 Motion sustained. 
 
 'Meeced Mining Co. v. Fremont et al. 
 
 (7 California, 317. Supreme Court, 1857.) 
 
 Trespass enjoined, as well as waste. Courts now restrain destructive 
 trespasses, and the distinction which once confined their interference to 
 cases of technical waste has been discarded. 
 
 ' Special case of gold mines. The principle upon which destructive tres- 
 pass is restrained applies to gold mines as well as others. If a party re- 
 move, he removes all that is of any value in the estate itself. It is em- 
 phatically takinff away the entire substancs of the estate; another 
 material circumstance is the absence of any mode of fixing the amount 
 of damage to the mine. 
 
 Irreparable injury. Taking away the minerals is in itself an irreparable 
 injury; and the mere statement of this fact is a compliance with the 
 ruling that the complaint must state how the injury is irreparable. 
 
 Insolvency is not necessary to be alleged where the right depends upon the 
 nature of the injury. i 
 
 Status of possessory claims. The appropriation of the public mineral 
 lands and development of the same under the license and acquiescence' 
 of the Federal and State governments considered as fixing the status of 
 mining interests in California. 
 
 ^ Implied license; right of holder to protect his claim. Under the legis- 
 lation and implied license of the State and of the United States, the 
 owner of a mining claim has a good vested title to the property, and it 
 should be so treated until his title is divested by the exercise of the 
 higher right of the superior proprietor; and in the meantime his right 
 to protect the property is as full and perfect as ^f he were the tenant of 
 the superior proprietor. 
 
 Due discretion should be used in the granting of injunctions to restrain 
 alleged irreparable mischiefs. When title is in dispute the court should 
 be more cautious; but in all cases it is a matter of sound discretion. 
 
 >S. C, a«<«, 310. 
 
 > Moore v. Ferrdl, 7 M. R. 282. 
 
 'Sparrow v. Strong, 2 M. R. 320. 
 
314 Injunction. 
 
 Preservation of property pending litigation. Where there is reasonable 
 ground to apprehend irreparable mischief pending the litigation, and 
 the title be matter of doubt, the courts should restrain both parties or 
 appoint a receiver. 
 
 Appeal from the District Court of the Thirteenth Judicial 
 District, County of Mariposa. 
 
 This is an appeal from an order of the court below, grant- 
 ing an injunction. The plaintiffs allege that they are the 
 owners and possessors of certain described real estate and veins 
 of gold-bearing quartz; that they took possession of tliem, and 
 have been working them for the purpose of extracting the 
 gold from the rock, and have expended upon the property up- 
 wards of eight hundred thousarid dollars; that defendants 
 claim an interest adverse to the plaintiffs, but that the defend- 
 ants have no title; that the title to the minerals in the soil of 
 California is in the State; that defendants are trespassing up- 
 on a portion of the premises, and working the mineral veins 
 therein, and avow their intention to take possession of the en- 
 tire property. The complainants pray that the adverse claim 
 of defendants may be determined by the court, and for an in- 
 junction pending the litigation, and that tiie same, on the 
 hearing, may be made perpetual. 
 
 EoBiNSON, Beatty & BoTTS, for ap'pellants. 
 
 It is urged that the order granting the injunction should 
 be sustained, because the complaint alleges ownership in the 
 plaintiff, and that character of injury which the law esteems 
 irreparable; and in support of this last proposition, we are re- 
 ferred to Sec. 929, Story's Eq. Juris. 
 
 There is no doubt that the remedy by injunction has been 
 extended by modern decisions to the case of a mere trespasser, 
 where the injury committed has been one that, if done by a 
 privy in estate, would have bfeen what is technically known as 
 waste. 
 
 As this court has frequently said, this writ of injunction is 
 the right arm of the law, and is not to be brought into exer- 
 cise upon trivial and ordinary occasions. 
 
 In trespass it is confined to two classes of cases, where, first, 
 
Meroed Mining Co. v. Fkemont. 315 
 
 it is done to the inheritance, which constitutes waste, which 
 lies at the foundation of the doctrine; and, secondly, where 
 the injury, without regard to the character of the article in- 
 jured, is of such a character that it can not be compensated 
 by money. Under the last head conies the case of the insolv. 
 ency of the trespasser. 
 
 We repeat that injunction to restrain a trespass is confined 
 to cases including injury to the freehold or inheritance, and 
 to such cases as the circumstances exchide the possibilit}' of 
 compensation in damages to be awarded by the judgment of 
 a court of law. 
 
 Now, does the alleged injury in this case come within the 
 category ? 
 
 It is true that injury to a mine has been held in England 
 sufficient to warrant the intervention of an injunction, but an 
 examination of the cases cited in the note to nine hundred 
 and twenty-ninth section of Story, and also of Livingston v. 
 Livingston, 6 Johns. Ch. 497, will show that this rests, not 
 upon the ground of irreparable injury, but upon the ground 
 that it is an inJ4iry to the inheritance, which, if done by a 
 privy in estate, would have constituted waste. 
 
 But in the case at bar, the trespass is no injury to the in- 
 heritance or freehold, for whilst the plaintiff claim? the owner- 
 ship of the soil, he informs us that the title to the minerals 
 upon which the trespass is committed belongs to the State of 
 California, and that he is only using them by a license from 
 the State. He had just as well ask an injunction to prevent 
 further injury to hired cattle tliat happened to be upon the 
 land of the plaintiff. 
 
 Nor is this injury of such a character as to prevent an effi- 
 cacious compensation by a judgment for damages in a court 
 of law. To this conclusion we should necessarily come by 
 any system of a priori reasoning, but for this we have the 
 highest authority — the decision of this court in the case of 
 Oates V. Teague, where this court uses the follovsdng language: 
 
 " Depriving the plaintiffs of a large amount of gold-bearing 
 earth is a loss, but not irremediable in the sense which will 
 entitle them to the relief they seek." 
 
 But again the bill shows that the defendants are not only 
 trespassers, but trespassing under a claim of adverse title. 
 
 " I remember being told from the Bench, very early in my 
 
316 Injunction. 
 
 life," says Lord Bacon, " that if the plaintiff filed a bill for an 
 account, and an injunction to stay waste, stating that the 
 plaintiff claimed by a title adverse to his, he stated himself 
 out of court as to the injunction ": See Pillesworth v. Ho^- 
 ton, 6 Yesey, 51. 
 
 Cook & Fenneb and Boobaem, for respondents. 
 
 BuENETT, J., delivered the opinion of the court, Teeet, J., 
 concurring. 
 
 The questions arising in this case are of the greatest impor- 
 tance, and may be stated thus: 
 
 Tlie order granting the injunction was made upon the facts 
 stated in the complaint, which must be taken as true, for the 
 purpose of determining the points raised on appeal. 
 
 1. , Can a party in possession of a mining claim on public 
 land within this State, sustain a suit to determine the adverse 
 title of a party out of possession? 
 
 2. And if so, can the plaintiff obtain an injunction pend- 
 ing the litigcition, to prevent the removal of the minerals, in 
 the same manner as if he were the true owner of the soil? 
 
 In reference to the first point, the two hundred and fifty- 
 fourth section of the Fractice Act provides that " an action 
 may be brought by any person in possession of real property, 
 against any person who claims an estate or interest therein 
 adverse to him, for the purpose of determining such adverse 
 claim, estate, or interest.", 
 
 The language of this section is general and comprehensive, 
 and allows any person " in possession " to bring the action 
 against any person " who claims " an estate or " interest " ad- 
 verse to him. The only title the plaintiff is required to have, 
 is that which flows prima facie from possession. It has been 
 repeatedly decided by this court that possession was prima 
 facie evidence of title: 4 Cal. 70, 9i; 5 Cal. 40. This provis- 
 ion of the statute is founded upon evident reasons of justice 
 and policy, and is more especially applicable to the present 
 condition of the country. It is evident that both parties, if 
 honest, have an equal interest in knowing the trne state of 
 their respective claims at the earliest practicable period, and 
 each party has his appropriate remedy provided by law. The 
 party out of possession can bring his suit to obtain possession 
 
Merged Mining Co. v. Feemont: 317 
 
 of the property, and the party in possession can bring his ac- 
 tion to determine the adverse title. The law, by giving both 
 parties the right to sue, affords each the power of protection 
 against the other, and -thus secures a speedy determination of 
 tlie doubt, the end intended to be accomplished by the law it- 
 self. If the holder of the adverse claim, out of possession, 
 sliould delay bringing his suit, the party in possession can 
 force him to produce his claim, and submit it to the determi- 
 nation of the proper tribunal. If a suit be necessary to settle 
 the dispute at all, the sooner it is brought the better for both 
 parties. 
 
 But the beneficial effects of this provision are as applicable 
 to mining claims as to any other cases. The value of these 
 claims, especially of those containing quartz lodes, is immense 
 and the titles often conflicting. To work these quartz mines 
 efficiently, a very heavy outlay of capital in the erection ot 
 machinery is required. As an illustration, it is stated in the 
 complaint in this case, that more than eight hundred thousand 
 dollars had been expended by the plaintiffs. It is, then, of the 
 utmost importance that parties engaging in these extensive 
 and beneficial enterprises, should have some means of deter- 
 mining all adverse claims before they make their costly im- 
 provements. If this right is not extended to mining claims, 
 then this most important interest of the State is without ade- 
 quate protection, and there is a manifest failure of justice. 
 
 If, then, it be conceded that a party in possession of a min- 
 ing claim can sustain an action to determine an adverse out- 
 standing claim, can he not obtain an injunction to protect the 
 property pending the litigation? Is not an injunction j?e?2,- 
 dente lite a remedial favorite in equity, and especially so, when 
 asked by a party in the actual possession of a mine against a 
 party out of possession? • 
 
 That the plaintiffs could obtain this injunction had they 
 the title in fee simple, there would seem to be no doubt. It 
 is true that courts of equity were once reluctant in granting an 
 injunction to prevent a mere trespass. At first the remedy 
 was confined to cases of technical waste, when privity of title 
 existed between the parties. The history of this change is 
 concisely stated by Lord Eldon, in his opinion delivered in 
 the case of Thomas v. Oakley, 18 Ves. Jr. ISi: "Through- 
 
318 Injunction-. 
 
 oat Lord Haedwicke's time and down to that of Lord Thue- 
 Low, the distinction between waste and trespass was acknowl- 
 edged, and I have frequently alluded to the case upon which 
 Lord Thuelow first hesitated: A person having a close de- 
 mised to him began to get coal there, but continued to work 
 under the contiguous close belonging to another person, and 
 it was held that the former, as waste, would be restrained; but 
 as to the close not demised to him, it was a mere trespass, and 
 the court did not interfere. But I take it that Lord Thuelow 
 changed his opinion upon that, holding that if the defendant 
 was taking the substance of the inheritance, the liberty of 
 bringing an action was not all the relief to which, in equity,- 
 he was entitled. The interference of the court is to prevent 
 your removing that which is his estate. Upon that principle. 
 Lord Thuelow granted the injunction as to both. That has 
 since been repeatedly followed, and whether it was trespass 
 under the color of another's right actually existing or not. If 
 this protection would be granted in the case of timber, coal, 
 or lead ore, wiiy is it not equally to be applied to a quarry? 
 The comparative value can not be considered." 
 
 This distinction between waste and trespass, so far as re- 
 gards the power of the court to grant an injunction, has 
 been set aside, and, ''it Is now 'granted,'" says Mr. Justice 
 Stoey, " in all cases of timber,' coals, ores and quarries, when 
 the party is a mere trespasser, or when he exceeds the limited 
 rights with which he is clothed, upon the ground that the 
 acts are, or may be, an irreparable damage to the particular 
 species of property." The same hesitation was once manifested 
 by the courts in restraining tiie publication of private letters 
 except those on business. " Fortunately for public, as well as 
 private peace and morals," says the same author, " the learned 
 doubts on this subject have been overruled, and it is now held 
 that there is no distinction between private letters of one nat- 
 ure and private letters of another." 
 
 In reference to the subject of injunctions, the same writer 
 after stating that they " are now more liberally granted than 
 in former times," makes these practical and judicious reniarks: 
 "It may be remarked, in conclusion, upon the subject of 
 special injunctions, that courts of equity constantly decline to 
 lay down any rule wliich shall limit their power and discre- 
 
Meeced Mining Co. v. Fkemont. 319 
 
 tion as to the particular cases in which snch injunctions shall 
 be granted or withheld. And there is wisdom in this course; 
 for it is impossible to foresee all the exigencies of society 
 which may require their aid and assistance, to protect rights 
 and redress wrongs. Tiie jurisdiction of these courts, thus 
 operating by way of special injunction, is manifestly indis- 
 pensable for the purpose of social justice in a great variety of 
 cases, and therefore should be upheld by a steady confidence." 
 Story's Eq. Jur., Sees. 863, 929, 9i8 and 956b. 
 
 Tlie ground upon which the injunction was granted in these 
 cases of timber, coals, ores, and quarries, was that of tres- 
 passer, in the language of Lord Eldon, was " taking away the 
 very substance of the estate." If a party enter upon the prem. 
 jses of another and occupy them for the purposes of husbandry, 
 and cultivate them in a proper manner, so as not materially to 
 diminish the value, when thej' shall afterward come into the 
 })ossession of the rightful owner, the courts will not grant an 
 injunction to restrain the party in possession, pending the lit- 
 igation, for this would be of no benefit to the owner and might 
 be an injury to both parties. But when the alleged trespasser 
 is taking away that which can not be replaced,, and which 
 constitutes the substance of the mine itself, so as to diminish 
 its value when restored to the owner, it constitutes a very dif- 
 ferent case. 
 
 It must be conceded that the principles of these cases apply 
 to gold mines, as well as to others. In fact there are circum- 
 stances connected with gold mines that render the remedy by 
 injunction more appropriate than to other mines. The only 
 value of a gold-mining claim, in most cases, consists in the 
 mineral. For timber, for cultivation, and for other purposes, 
 they are generally valueless. If a party removes the gold, he 
 removes all that is of any value in the estate itself. It is em- 
 phatically taking away the entire substance of the estate. 
 Another material circumstance is the impossibility of making 
 any certain estimate of the amount of injury done. In the 
 case of a coal mine, or stone quarry, the amount removed can 
 be substantially ascertained by admeasurement. So in the case 
 of timber trees, their size, number and value, can be substan- 
 tially ascertained. But in reference to gold mines this is not 
 the case. There is no mode of estimation that even approaches 
 
320 Injunction. 
 
 to substantial accuracy, and hence tlie greater necessit}' foi 
 preventing that injury wliich yon can not estimate, and, there- 
 fore, can not compensate adequately. 
 
 In the case of Gates v. Teague, October Term, 1856, this 
 court held that the mere allegation that the injury was irrep- 
 arable would not in itself be sufficient, but the complaint 
 must show how. The same is stated as the rule in tlie case of 
 AmeVung and others v. Seekamp, 9 Gill & John. 474. This 
 is, no doubt, the correct rule, and facts must be stated to 
 justify the conclusion of irreparable injury. But in the cases 
 of mines, timber and quarries, the statement of injury is suf- 
 ficient. In the nature of the case, all the party could well 
 state, as matter of fact, is the destruction of the timber in the 
 one case and the taking away the minerals in the other. 
 Taking away the minerals is itself the injury that is irrep- 
 arable, because it is taking away the substance of the estate. 
 The allegation of insolvency is not necessary to prove the 
 injunction in these cases. The right to the remedy is based 
 upon the nature of the injury, and not upon the incapacity of 
 the party to respond in damages. And in reference to the 
 element of insolvency, it may be remarked that the rule es- 
 tablished under a system which permitted imprisonment for 
 debt, and therefore gave more efficiency to the remedy at law, 
 should be received with some modifications under our system. 
 The reason of the rule being modified, the rule itself should 
 receive a corresponding qualification; and in practice it is 
 generally difficult to prove insolvency, except after the re- 
 turn of an officer upon execution. To rely upon the per- 
 sonal responsibility of an individual for compensation for 
 serious injuries, is what practical men would hesitate to do, 
 when they can avoid it. And I agree with Chancellor John- 
 son, in the case oi Kinsler v. Clarice, 2 -Hill, (8. C.) Eq. 618, that 
 itcomports" more with substantial justice to both parties to 
 restrain the trespass, than to leave the plaintiff to pursue his 
 remedy at law." 
 
 The complaint in this case alleges that the defendants 
 committed the acts charged under an invalid or adverse claim. 
 This statement under the English decisions at one time 
 would have been fatal to tlie case. But the rule then has been 
 since changed. In the case of Smith v. CoUyer, 8 V«s. Jr. 
 
Merced Mining Co. v. Feemont. 321 
 
 90, Lord Eldon said: "I remember when, if a plaintiff stated 
 that a defendant claimed by an adverse title, he stated him- 
 self out of conrt." Aujain, in the case of Norway v. Rowe, 
 19 Ves. Jr. 15i, the same Chancellor said: "I recollect hear- 
 ing from either Lord Thurlow or Lord Bathubst, that if a 
 bill contained a passage, which is frequently inserted now, 
 that the defendant pretends the plaintiff is not entitled to the 
 estate, he stated himself out of court." 
 
 Bnt it seems to be the general rule in Ensjland that if the 
 answer positively denies the exclusive right of the plaintiff, 
 then the injunction will be dissolved. This is based upon the 
 practice of not permitting affidavits to be read to contradict 
 the answer as to the question of title: 8 Ves. Jr. 89; 9 Yes. 
 Jr. 355. In reference to other questions, they may be read. 
 As the denial of the defendant is under oath, and the plaintiff 
 is not allowed to contradict the answer, of course the injunc- 
 tion must be dissolved. Still this rule is not inflexible:'? 
 Ves , Jr. 305, and notes. In the case of Livingston v. Living- 
 ston, Q John. Ch. 497, Chancellor Kent said: "This case is 
 analogous to a case before Lord Camden, referred to by the 
 counsel in Mogg v. Mogg, 1 Mer. 65i, and which Lord Thue- 
 Low seemed to approve of. It was when a defendant claimed 
 tiie right of estovers, and, under tliat right, cut down timber; 
 there was a claim of right, and until it was determined, it was 
 proper to stay the party from doing an act which, if it turned 
 out he had no right to do, would be irreparable. So, also, in 
 Hanson v. Gardiner, 7 Ves. Jr. 305, the injunction was 
 granted when the defendant claimed common of pastures and 
 estovers." In the case of Amelung and others v. Seekamp, 
 9 Gill & J. 468, it was held that an injunction would not be 
 granted to restrain trespass pending proceedings to try the 
 right, except in cases of irreparable mischief, or to prevent a 
 multiplicity of suits, or when peculiar circumstances imper- 
 atively demanded such a remedy^ The same rule seems to 
 prevail in South Carolina: 2 Hill, Ch. 618. In this case 
 Chancellor Johnson said: "Injunctions to restrain trespass, 
 where irreparable mischief would be effected before a trial- at 
 law could be had, are now regarded with more favor." 
 
 It is not, however, necessary in this case to lay down any 
 rule as to the proper course to be taken upon the coining in 
 VOL. VII. — 21 
 
S22 Injunction. 
 
 of the answer containing a positive denial of the plaintiff's 
 exclusive right. There is no distinction between the etfect of 
 an allegation in the complaint that the acts were committed 
 under pretense of an adverse title, and the sworn statement in 
 the answer. A man may pretend to claim what he would not 
 solemnly set up in the answer. 
 
 The allegation in the complaint that- the defendants justified 
 under an adverse claim, will not in any sense prejudice the 
 right to the injunction. 
 
 Conceding, then, for the sake of the argument, that the 
 plaintiffs have shown themselves the owners of the premises de- 
 cribed in the complaint, there could be no reasonable doubt as 
 to their right to the injunction. The case comes substantially 
 within the rule laid down by Oiiancellor Kent, in Livingston 
 V. Livingston, that " there must be something particular in 
 the case, so as to bring the injury under the head of quieting 
 possession, or to make out a case of irreparable mischief, or 
 when the value of the inheritance is put in jeopardy." The 
 particular circumstance of this case is, that the injury con- 
 sists in removing the minerals from a gold mine, thus taking 
 away the very substance of the estate. It is not, if the com 
 plaint be true, an ordinary and naked trespass. Another cir- 
 cumstance which ought to have some effect, is the fact that 
 the action is brought to quiet the possession, and the injunc- 
 tion was granted '■'■ peiidente lite." 
 
 If these views be correct, it then becomes important to in- 
 quire what protection the law gives to parties holding mining 
 claims upon the public lands within this State. This in- 
 quiry will involve the examination of the various decisions of 
 this court in reference to this subject. 
 
 In tlie case of Hicks v. Bell, 3 Cal. 219, this court decided 
 that "in reference to the ownership of public lands, the Uni- 
 ted States only occupied the position of any private proprie- 
 tor, with the exception of an express exemption from State 
 taxation. The mines of gold and silver on the public lands 
 are as much the property of this State, by virtue of her sov- 
 ereignty, as are similar mines in the lands of private citizens. 
 She has, therefore, the sole right to autliorize them to be 
 worked; to pass laws for their regulation; to license miners, 
 and to affix such terms and conditions as she may deem prop- 
 
Merced Mining Co. v. Feemont. 323 
 
 ,er to the freedom of tlieir use." The doctrines of this case 
 are expressly affirmed in the subsequent case of Stoakes v. 
 Barrett, 5 Cal. 39. In the case of McOlvntock v. Bryden, 5 
 Gal. 97, it was held, ''that the act of April 13, 1850, passed 
 for the better regulation of the mines, and the government of 
 foreign miners, seems to give, by necessary implication, what- 
 ever right the State might have in the mineral in the soil, and 
 the right to mine to all native born or naturalized citizens of 
 the United States, who may wish to toil in the gold placers." 
 The six hundred and twenty-first section of the Practice Act 
 would seem to imply the same right. 
 
 In the case of Irwin v. Phillips and others, 5 Cal. 146, 
 Mr. Justice Hetdenfeldt, in delivering the opinion of the 
 court, uses this language: 
 
 " Courts are bound to take notice of the political and so- 
 cial condition of the country which they judicially rule. In 
 this State the larger part of the territory consists of mineral 
 lands, nearly the whole of which are the property of the pub- 
 lic. No right or intent of disposition of these lands has been 
 shown, either by the United States or the State Government; 
 and with the exception of certain State regulations, verj' lim- 
 ited in their character, a system has been permitted to grow 
 up by the voluntary action and assent of the population, 
 whose free and unrestrained occupation of the mineral region 
 has been tacitly assented to by the one government, and heart- 
 ily encouraged by the expressed legislative policy of the oth- 
 er." In this case the doctrine of the common law, which 
 prescribes that a watercourse must be allowed to flow in its 
 natural channel, was held to be inapplicable to our mineral 
 region, and that therefore a party had a right to divert the 
 waters of a stream from their natural channel, for mining 
 purposes. So, in the case of Tartar v. The Spring Creek 
 Water and Mining Company, 6 Cal. 395, the court held this 
 language: "The current of the decisions of this court go to 
 establish that the policy of this State, as derived from her 
 legislation, is to permit settlers in all capacities to occupy the 
 public lands, and by such occupation to acquire the right of 
 undisturbed enjoyment against all the world but the true 
 owner." And finally, in the case of Hoffman v. Stone, 7 CaV 
 46, this court used this language: "The former decisions of 
 
324 Injunction. 
 
 this court in cases involving the right of parties to appropri- 
 ate waters for mining and other purposes, have been based 
 upon the vi^ants of the community and the peculiar condition 
 of things in this State (for which there is no precedent) rather 
 than any absolute law governing such cases. The absence 
 of legislation on this subject has devolved on the courts the 
 necessity of framing rules for the protection of tliis great 
 interest, and in determining these questions we have con- 
 formed, as nearly as possible, to the analogies of the common 
 law.?' 
 
 The sentiment that " courts are bound to take notice of the 
 political and social condition of the country which they judi- 
 cially rule," is as just as its expression is concise and appro- 
 priate. And courts knowing the political and social condi- 
 tion of the country, are equally bound to apply the rules of 
 law and the principles of enlarged reason to the new circum- 
 stances of a people. 
 
 It is the boast of the common law, as of every other system 
 of enlightened jurisprudence, that its principles, when legiti- 
 mately applied, will allbrd a redress for every substantial in- 
 jury. And especially is it the distinguishing characteristic 
 of equity that, while its rules are certain, its expansive prin- 
 ciples are ample enough to embrace all new cases. The cir- 
 cumstances of a case may be new, but there is always some 
 known principle, or a new combination of known principles, 
 applicable to it. Law, in fact, is but the rules of common 
 sense, and the principles of justice, as applied to circumstances 
 as they really exist. And it is upon this sensible ground that 
 courts of equity have wisely refused to lay down any limits 
 to their right to grant special injunctions. Tlie right must 
 be exercised with due caution, but it must be exercised in 
 proper cases. 
 
 Under the novel state of things existing in this country, great 
 interests have grown up, and have been fostered and protected. 
 Large amounts of capital and labor have been expended in 
 improvements upon mining claims in every part of the min- 
 ing region. And whatever may be the comparative value of 
 diiferent claims, the bona fide possessor has an equal right to 
 protection. Under the current of decisions of this court, con- 
 flicting claims to the use of water, as well as to the possession 
 
Merced Mining Co. v. Fremont. 325 
 
 of mining claims, may be settled. The party has rights that 
 the law will protect; and if the law protects him at all, it 
 should give him efficient practical protection. Any other 
 protection might fail to attain the very end intended. 
 
 If it be true that the minerals found in a mining claim, as 
 a general thing, constitute its only value — that by the current 
 of legislation, both of the Federal and State governments, the 
 holder is there by the license of both governments, and that 
 under this comprehensive license he is allowed and even en- 
 couraged, to take from tlie premises all that is of any value, 
 then it would seem to follow, as a necessary and inevitable 
 result, that the party thus in possession could sustain any and 
 all remedies necessary to protect the property for the time 
 being. So long as the real owner permits him to occupy the 
 premises and extract the minerals, not as a wanton trespasser, 
 but as a favored and licensed possessor, so long he has the 
 right to rely upon the title of the superior under whom he 
 holds, and to resort to any remedy the government could 
 maintain against a wrongdoer. 
 
 It is true, that while the acts of Congress specially reserve 
 these mineral lands from the right of pre-emption, and the 
 acts of the State legislature contain various provisions regu- 
 lating the mines, neither the one nor the other have conferred 
 in express terms, any specific title upon the holder of a min- 
 ing claim. Yet these acts, especially those of the State, have 
 virtually assumed the right to exist; otherwise there could 
 have been no rational basis upon which this legislation could 
 be predicated. When we consider the current and the spirit 
 of the legislation of both governments, taken in connection 
 with the history and the known circumstances of the country, 
 the conclusion is irresistible that the mines are occupied and 
 worked with the clear assent and encouragement of both gov- 
 ernments. And while the terms of this license, and the rela- 
 tion which the miner sustains to the superior proprietor, may 
 not be expressly laid down, and the duration of the estate not 
 clearly designated by any positive law, and we may not, for 
 these reasons, be able to give any exact definition of the pre- 
 cise nature of the right, yet one thing is well understood and 
 indisputable; they are there by the clear license of both gov- 
 ernments, and have such a title as will hardly be divested, 
 
326 Injunction. 
 
 even by the act of the superior proprietor. There are equita- 
 ble circii instances connected with these raining claims that are 
 clearly binding upon the conscience of the {governmental pro- 
 prietor, that this court must, with all due respect, presume 
 will never be disregarded. Eiglits have become vested in 
 virtue of this license, that can not be divested without a viola- 
 tion of the principles of justice and reason: Conger \. Wea- 
 ver, 6 Cal. 548. 
 
 If these views be correct, the owner of a mining claim has, 
 in practical effect, a good vested title to the property, and 
 should be so treated, until his title is divested by the exercise 
 of the higher right of the superior proprietor. His rights and 
 remedies, in the meantime, are not trammeled by the consid- 
 eration that the higher right to reclaim the property exists in 
 another, which right may possibly, but will not probably, be 
 exercised. His right to protect the property for the time be- 
 ing, under the peculiar circumstances of the case, is as full 
 and perfect as if he was the tenant of the superior proprietor 
 for years or for life. 
 
 If a party leases from another a tract of land for agricult- 
 ural purposes, upon which there is a mine, any irreparable 
 injury to the mine would not affect his estate, but the injury 
 would be to the estate of the landlord, and the remedy, in re- 
 spect to that injury, must be sought by the latter. But where 
 the lease is of a mine, the case is entirely different. The in- 
 jury, in that case, is to the estate of the tenant, and he is the 
 proper party to sue. 
 
 Of the right of the tenant to sustain an injunction, pending 
 a suit to settle the title in such a case, there would seem to be 
 no doubt, provided the title of liis landlord' itself be sufficient. 
 A tenancy is but a smaller estate, carved out of a greater. It 
 is shorter in duration, but equally exclusive, while it lasts. 
 All the rights that belong to the larger estate are incident to 
 the tenancy for the term, except such as are reserved, from 
 the nature of the case, or by the express terms of tlie lease. 
 If, therefore, the estate of the tenant suffers irreparable inju- 
 ry, the right to restrain it would seem to be as clear as the 
 right to sustain ejectment or trespass, under proper circum- 
 stances. 
 
 And in reference to a mining claim, under the circum- 
 
Merged Minino Co. v. Fremont. 327 
 
 stances actually existing in this State, tlie injury to the mine is, 
 to all intents and purposes, an irreparable injuiy to the estate 
 of the holder. Unless restrained, the intruder may take away 
 not only that which is of the substance of the existing estate, 
 but all that is of any value. The right of the holder, what- 
 ever you may define it to be, is practically valuable, if pro- 
 tected "against all the world but the true owner." It would 
 seem to be the duty of the courts to give this protection. 
 
 It must be conceded that courts should exercise due discre- 
 tion in granting injunctions to restrain alleged irreparable 
 mischiefs. Parties are sometimes improperly restrained, to 
 their serious injury. When the title of the plaintiff is dis- 
 puted in the answer, the courts should be still more cautious. 
 But in all cases it is matter of sound discretion. It niay be 
 properly said, however, that when there is reasonable ground 
 to apprehend the commission of irreparable mischief, pending 
 the litigation, and the title be matter of doubt, the courts 
 should restrain both the parties, or appoint a receiver, under 
 proper circumstances. The party restrained, in a case of rea- 
 sonable doubt, has, at least, these advantages: First, the prop- 
 erty is left untouched for tlie time, and, upon the termination 
 of the suit in his favor, returns to him unimpaired. Second, 
 he has not only his remedy against the opposite party, but 
 also against his sureties. But in case the party is not re- 
 strained, and the suit should terminate adversely to him, the 
 other party must rely solely upon his personal responsibility. 
 It is true, notwithstanding all these advantages, he may suffer 
 very seriously; but as it is matter of doubt who has the right, 
 and some one must incur the risk pending the litigation, the 
 risk would be less on his than on the other side. 
 
 Whether the right to the minerals in the soil of California 
 be in the State or in the United States (and in reference to 
 which it is unnecessary to express any opinion), the right of 
 the plaintiffs to the injunction would be equally clear. What 
 their rights would be upon the caming in of the answer does 
 not arise in this case. This opinion is solely predicated up- 
 on tlie facts stated in the complaint. 
 
 For these reasons I think the order granting the injunc- 
 tion was correct and that the judgment should be affirmed. 
 
328 Injunction. 
 
 MUEEAT, 0. J. 
 
 This appeal is prosecuted from an order of the court below, 
 Ijrauting ap injunction. Tlie plaintiffs allege that thej are 
 the owners of certain premises described in the bill; tliat they 
 entered upon and took possession of tlie same for tlie .purpose 
 of working the gold-bearing quartz and other precious metal 
 therein contained; that the defendants have intruded upon 
 their possession, under a claim of title to the soil which ,they 
 allege is unfounded and void, and are working said quartz 
 claims, and threatening to carry away the gold-bearing earth 
 and quartz, and to deprive the plaintiffs of their premises. 
 
 The bill alleges irreparable injury, and prays an injunction 
 until the rights of the parties can he ascertained and deter- 
 mined. 
 
 Under the old practice, courts of equity seldom or never 
 interfered to prevent trespass, bat the rule has been relaxed 
 by modern decisions, and i6 thus stated by Story, in his Com- 
 mentaries on Equity Jurisprudence: " Formerly, indeed, 
 courts of equity were extremely reluctant to interfere even 
 in cases of repeated trespasses, but now there is not the slight- 
 est hesitation, if the acts done or threatened to be done to 
 the property would be ruinous or irreparable, or would im- 
 pair the just enjoyment of the property in the fnture. Thus, 
 for instance, where a mere trespasser digs into and works a 
 mine to the injury of the owner, an injunction will be granted, 
 because it operates a pei'manent injury to the property." 
 
 Among other cases relied on to support this doctrine the 
 learned commentator refers to that of Livingston v. Livingston, 
 6 Johns. Ch. 497, in which Chancellor Kent thus sums up 
 the rule; "The recent case of Oarstin v. Asplin, 1 Madd. 
 Ch. 150, shows that it is not the general rule that an in- 
 junction will lie in a marked case of trespass, where there is 
 no privity of title, and where there is a legal remedy for the 
 intrusion; there must be something particular in the case, so 
 as to bring the injury under the head of quieting the posses- 
 sion, or to make out a case of irreparable mischief, or, where 
 the value of the inheritance is put in jeopardy." 
 
 The counsel for the plaintiffs doubtless had this authority 
 in his mind at the time he instituted this suit, wliich seetns 
 
Meeced Mining Co. v. Fkemont. 329 
 
 to be of a double character, as a bill of peace, and to restrain 
 a threatened trespass, and if he had simply counted on title 
 to the land he might have maintained it. The rule, however, 
 is that the pleading must be taken most strongly against the 
 pleader. The bill first alleges that the plaintiffs are the 
 owners of certain land, describing it, and then goes on to 
 state they entered upon and took possession of the premises, 
 consisting of quartz leads, etc., for the purpose of working 
 the same; that the gold belonged to the State, and that they 
 were there by virtue of a general license of the State to work 
 said minerals. 
 
 It is evident from tlie whole bill that the plaintiffs do not 
 count on their ownership of the soil and proprietary right to 
 the minerals as appurtenant thereto, for if they were owners, 
 then, under our previous decisions, without some specific legis- 
 lation on the subject, no one would have a right to intrude 
 upon their premises for the purpose of mining. They seem 
 to rely entirely on their prior location and appropriation of 
 the quartz veins in controversy. 
 
 The injury complained of not being to the inheritance, in 
 order to sustain this injunction, must be shown to be irrepar- 
 able. The bill does not allege the insolvency of the defend- 
 ants, nor any fact or circumstance tending to establish that 
 such is the case, except so far as we would be bound to infer 
 from the nature of the matters involved, that it would prob- 
 ably be impossible to ascertain the amount of damages sus- 
 tained by the defendant. 
 
 It is true that it might be somewhat diflicnlt to fix any cor- 
 rect standard by which the plaintiffs' damages could be as- 
 certained, but it is no less true that the rule would be equally 
 uncertain and unsatisfactory if the plaintiffs should be cast 
 in this action. The fact that the controversy involves quartz 
 veins, or gold-bearing earth, is not sufficient in itself to war- 
 rant this court in assuming that the injury complained of 
 must necessarily be irreparable. The plaintiff ought to have 
 brought himself within the rule of Livingston v. Livingston, 
 before quoted. 
 
 The questions involved in this suit have been substantially 
 settled in the case of Oates v. Teague et al., October Terra, 
 1856, in which this court uses the following language: "True, 
 
330 iKFJUsrcTioN. 
 
 it is said that the injury will be irreparable, but it does not 
 show how; depriving the complainants of a larD;e amount of 
 gold-bearing earth is a I6ss, but not irremediable in the sense 
 which will entitle them to the relief which they seek." 
 
 1 am satisfied, upon an examination of the plain tiifs' bill, 
 that the case made by it did not warrant the issuing of the 
 injunction. This, I think, is the only question involved. I 
 am compelled, therefore, upon ray understanding of the case, 
 to dissent from the majority opinion of the court. I think 
 the order granting the injunction should be reversed.' 
 
 COKER ET AL. V. SiMPSON ET AL. 
 (7 California, 340. Supreme Court, 1857.) 
 
 Facts snfBcient to justify damages only, without injnnction. The com- 
 plaint stated that the defendants had constructed a mining ditch 
 above that of plaintiffs, and had thereby diverted the waters of the 
 stream which supplied them without any allegation of continuing in- 
 jury; and claimed damages and a perpetual injunction: Held, that 
 the case stated was sufficient to support an action for damages, but 
 not to sustain the injunction. 
 
 There must be equitable circumstances stated, to obtain a remedy by in- 
 junction. 
 
 Appeal from the District Court of the Fourteenth Judicial 
 District, County of Nevada. 
 
 This was an action for damages sustained by plaintiffs, as 
 owners of a mining ditch, by the construction of another 
 ditch above it by the defendants, thereby diverting the wa- 
 ters of the stream supplying; both ditches. The complaint 
 avers the diversion of the water, alleges the injury and prays 
 for judgment for damages and for a perpetual injunction 
 against the defendants. There is no allegation in the com- 
 plaint that the injury is continued or is threatened or likely 
 to be so. Defendants answered. The court below gave 
 
 • The opinions of the majority of the court maintaining the injunction in this 
 case have been repeatedly followed, approved or affirmed: More v. Massini, 
 7 M. E.4.55; U. S. v. Parrott, 7 M. H. 336; If ess v. Winder, .34 Cal. 272; 
 Blasdely. Williams, 9 Nev. 172; Boggs v. Merced Co., 14 Cal. 313; Post 
 Mkx. Grant; Chapman v. Toy Long, 1 M. R. 503; Partridge v. MeKhi- 
 ney, 1 M. R. 187; Tuolumne Co. v. Chapman, 8 Cal. 397; Post Nuisakce. 
 
CoKER V. Simpson. 331 
 
 judgment for plaintiffs for damages and granted a decree for 
 a perpetual injunction. 
 Defendants appealed. 
 
 Henet Meredith, for appellants. 
 
 The, judgment in this case is erroneous and should be re- 
 versed, so far as the same grants a perpetual injunction 
 against defendants. 
 
 The complaint is merely a common law declaration for 
 damages for the diversion of water, and if? devoid of aver- 
 ments of any and all the equities entitling a party to an in- 
 junction: 4 Hen. & M. 424; 1 A. K. Marsh. 554; 6 John. 
 Gh. 46; Gates v. Teague, Oct. Term, 1856. 
 
 McCoNNELL, for respondents. 
 
 'Ho brief on file. 
 
 BuENETT, J., delivered the opinion of the court, Mueeat, 
 0. J., concurring. 
 
 The decision of this case must be made upon the conflplaint, 
 the answer and the judgment of the district court, as no point 
 is made requiring the transcript to contain the evidence. 
 The plaintiffs were the owners of a ditch leading from Shady 
 creek, and after the construction of their ditch the defendants 
 constructed a ditch above that of plaintiffs and diverted the 
 waters of the stream. The complaint, in the stating and 
 charging portion of it simply alleges the facts sufficient to 
 constitute a good cause of action for' damages for the diver- 
 sion, and then prays judgment for damages and a perpetual 
 injunction. A verdict was found for plaintiffs and judg- 
 ment given for damages and perpetual injunction, and de- 
 fendants appealed. 
 
 The only grounds of error assigned are, first, that the com- 
 plaint contained no sufficient allegations to sustain the in- 
 junction, being only a case for damages; second, that the in- 
 junction granted went beyond the prayer of the complaint 
 and the justice of the case. 
 
 The complaint seems insufficient to sustain that part of the 
 
332 iNJUlfCTlON. 
 
 judgment of the court granting the injunction. It is simply 
 alleged, in substance, that defendants, between certain speci- 
 fied times, diverted the waters of the stream, to the plaint- 
 iffs' damage, in a sum stated. There is no allegation that the 
 injury was continuing or threatened to be continued or likely 
 to be continued. The circumstances stated are sufficient for 
 a recovery of damages but no equitable facts are alleged to 
 sustain the injunction. The writ of injunction, though reme- 
 dial, must be based upon equitable circumstances. From all 
 that appears in the complaint the injury was only temporary 
 and not likely to continue. 
 
 For these reasons I think that part of the judgment of the 
 court below, granting a perpetual injunction, should be re- 
 versed. It is not necessary to examine the other ground of 
 error assigned. 
 
 lieversed. 
 
 Fremont v. The Merced Mining Co. 
 
 (1 Mclllister, 267. U. S. Circuit Court, District of California, 1858.) 
 
 Plea to jurisdiction. When the want of jurisdiction is not patent on the 
 record, the proper mode to take advantage of it is by plea. 
 
 ' Injunction pending: trial of plea to jurisdiction. The plea to the juris- 
 diction does not oust the jurisdiction of the court; in a case of threat- 
 ened irremediable mischief the court will issue an injunction to stay the 
 mischief pending the argument or issue, and accelerate the hearing or 
 argument upon the issue made. 
 
 Form of finding and decree upon the issue of citizenship submitted to a 
 jury. 
 
 The bill in this case was filed to enjoin the working of a 
 gold mine. 
 
 A plea to the jurisdiction was filed, and motion for injunc- 
 tion was met by the objection that the court had no jurisdic- 
 tion. 
 
 Argument of plea ordered forthwith, and the issue of fact 
 given to the jury. 
 
 • Federal court will not enjoin where the same prayer has already been 
 made to State court: Evans v. Smith, 3 West Coast R. 213. 
 
Feemont v. Meeced Mining Co. 333 
 
 MoAllistee, J. 
 
 The bill in this case was filed to enjoin the excavation of 
 gold from land alleged to be the property of the complainant. 
 The bill was met by defendants with a plea to the jurisdiction 
 of the conrt, on the ground that the complainant Avas not a 
 citizen of the State of New York, as alleged in the bill, but 
 was a citizen of California at the time; and that therefore 
 the complainant could not sue the defendant, who is also a 
 citizen of this State, in this court. A motion was then made 
 on behalf of the complainant for the issue of an injunction, 
 which was resisted upon the ground that pending the plea to 
 the jurisdiction, the court could take no further proceeding in 
 the cause. To enjoin an alleged irreparable mischief is the 
 object of the present proceeding. No defect of jurisdiction 
 appearing on the record, the proper mode to avail of it is by 
 plea. It is contended, however, that the filing of the plea 
 has the effect of arresting all further proceedings in this 
 court, and that it can make no order in regard to the injunc- 
 tion until the plea is disposed of. Tliat the court can not 
 grant a perpetual injunction or hear an argument upon it, is 
 evident. It will direct an immediate argument of the plea; 
 and in, a case of irreparable mischief alleged and not denied, 
 it can issue a temporary injunction to stay the mischief until 
 tiie obstacle interposed by the defendant's plea shall be re- 
 moved. It can not be that, assuming the fact averred in the 
 plea may be true, the court must remain passive and permit 
 the mischief to be wrought, because its jurisdiction has been 
 questioned? 
 
 The case is simply this: The complainant in his bill has 
 made the proper averments of citizenship to give jurisdiction 
 to the court. So far, then, as the record is concerned, the 
 jurisdiction of the court is perfect. The effect of such aver- 
 ments is to imj)&rt, priTna facie, jurisdiction; and it is incum- 
 bent on the defendant who would impeach that jurisdiction for 
 causes dehors the record, to do so not only by allegation but 
 proof. Until this be done, the Jp^"ma_/ao^e jurisdiction derived 
 from the record authorizes the court to retain the suit in such 
 position as to enable it to preserve the rights of the respective 
 parties in statu quo until the intervening obstacle to a decision 
 
334 Injunction. 
 
 on the merits is disposed of. An immediate opportunity will 
 be afforded to the parties, the one to sustain, the other to 
 falsify it. The issue, arising as it does in an equity suit, 
 might be tried by the court. Such seems to have been the 
 course pursued in the case of Shelton v. Tiffin and others, 6 
 Howard, 163. But as it is within the power of the court to 
 inform its conscience by the verdict of a jury, the facts estab- 
 lishing the citizenship of plaintiff either in New York or 
 this State, will be referred to a jury. Yarious cases have 
 been cited; all, however, were com.nion injunctions in which 
 pleas or demurrers were filed. Even in such the court have 
 always speeded the trial of the issue raised by the demurrer 
 or plea, in order to promptly reach the injunction. 
 
 In an anonymous case (2 Atk. 113) it is said, " Where de- 
 fendant has put in his plea to plaintiff's bill, the plaintiff 
 can not move for au injunction to stay defendant from pro- 
 ceeding at law till the plea, by some means or other, is re- 
 moved out of the way; all that the plaintiff can do is to move 
 that the plea may be accelerated, which the court did." 
 
 In Cousins v. Smith, 13 Yesey, 166, Lord Eeskine plainly 
 indicates he would have removed a demv/rrer, under similar 
 circumstances, by ordering it to be argued immediately. 
 
 In Humphreys v. Humphreys, 3 P. Wms. 395, the court 
 said, upon motion of an injunction to stay, etc., after a plea 
 put in, there can be no motion for an injunction ; but, at the 
 instance of the plaintiff it was ordered thnt the plea should 
 come on for argument the next day, and if overruled the 
 plaintiff might move at the same time for an injunction. 
 
 If, therefore, a motion shall be made by the plaintiff to 
 accelerate the removal of the plea, tlie court will direct the 
 immediate trial of the issue raised by it. If no immediate 
 disposition of it can be made, it will issae such order as will 
 maintain the parties in statu quo until such is made. 
 
 Hall McAllistee, solicitor for complainant. 
 
 Cook & Fennee, for defendants. 
 
 The issue of citizenship was submitted to a jury, who having returned a 
 verdict in favor of the plaintiff, the following order was placed upon the 
 minutes of the court: — 
 
United States of America v. Parrott. 335 
 John C Fremont ) 
 
 Merced Mining Co. and others. ) 
 
 Whereas, heretofore, a trial was had in above action in 
 this court, on the law side thereof, before a jury impaneled 
 for said trial, on the 14th, 15th, 16th and 17th days pf June, 
 1858, upon the following issue: Whether John Charles Fre- 
 mont was at the commencement of this action, viz., on the 8th 
 day of May, 1858, a citizen of the State of California? 
 
 And, whereas, the plaintiff and defendants appeared by 
 their respective counsel, and evidence was adduced by both 
 parties in reference to said issue at said trial; and, whereas, 
 the said issue was duly submitted to the jury so impaneled as 
 aforesaid, and thereafter said jury did render a verdict in tlie 
 Words and figures following, namely: 
 
 " The jury in this case unanimously agree that John Charles 
 Fremont was not, at the commencement of this suit, on the 
 8th May, 1858, a citizen of the State of California." 
 
 " San Francisco, June 17, 1858." 
 
 'Sovj, I do hereby certify that said verdict was found as 
 aforesaid; and I further certify it is satisfactory to me. 
 
 M. Hall McAllistee, 
 Circuit Judge, Circuit Court, [J. S., for Dist. Calif. . 
 
 San Francisco, June 18, 1858. 
 
 'The United States of America v. Parrott et al. 
 
 (McAllister, 271. U. S. Circuit Court Northern District of California, 1858.) 
 
 ' Chancery practice — Affidavits. Upon motion for injunction complainant 
 may read affidavits filed before the coming in of the answer; and after 
 answer filed he may read further affidavits as to matters of wa5te and 
 other collateral facts, but not on the question of title. 
 
 * The same case is reported, MoAU. 447, on motion for commission to take 
 testimony, and on that point only. 
 ^ Sworn answer treated as an affidavit, Hiller v. Collins, 63 Cal. 235. 
 
336 Injunction. 
 
 ■Necessary parties— Non-residents. The general rule in a court of equity 
 is that all persons interested in the object of the bill are necessary and 
 proper parties. There are exceptions to the rule as, e.g'., parties not 
 within the jurisdiction; and where such parties are not indispensable the 
 bill will be retained. 
 
 ATerments in avoidance. On motion to dissolve the court will consider 
 matters set up in the bill by way of avoidance as if stated by affidavit. 
 
 Jnrisdiction of TJ. S. courts in clianeery. The jurisdiction of the circuit 
 courts of the United States is limited to certain persons and subjects; 
 but within those limits it is complete and full; and in giving the reli^ 
 prayed for it has all the powers of the English High Court of Chancery. 
 
 Title to mine disputed. An injunction may issue to stay the working of 
 a mine although the legal title is in controversy, the object being to 
 preserve the subject-matter Of the litigation. 
 
 ' Denying tlie equities of the bill. Where the answer denies directly and 
 positively, upon personal knowledge, the allegations of the bill, it is a 
 denial of the equity, and acting upon such answer as evidence an injunc- 
 tion ought to be dissolved in the absence of extraordinary circumstances, 
 such as waste, destruction, trespasses, etc. ; but where fraud, forgery and 
 antedating are distinctly charged in the bill, the denial of such charges 
 upon information and belief is not a denial of the equity of the bill and 
 can not defeat the motion for injunction or cause the dissolution of one 
 already granted. 
 
 Trespass on mine— Irreparable injury. Working a mine belongs to the 
 class of irreparable injuries; taking away the minerals is taking away 
 the substance of the estate. 
 
 Insolvency. The allegation of insolvency is not necessary to procure the 
 injunction in these ca-ses; it is an element to be considered in connec- 
 tion with the amounts involved, and, where it exists, is a proper sub- 
 ject for allegation in the bill. 
 
 Title of the U. 8. in minerals. Under the treaty of Guadalupe Hidalgo, 
 the United States acquired title to the minerals, and they have not ded- 
 icated them to the public. 
 
 Tlie institution of a suit at law to try title, is not indispensable to the 
 jurisdiction in equity to protect the property. 
 
 Ore already severed. The removal of the fruits of pa«t waste may be en- 
 joined. 
 
 The bill in this case is filed for an injunction, and the ap- 
 pointment of a receiver. The object is to restrain the work- 
 ing of a quicksilver mine, known as the " New Almaden " 
 of the alleged value of $25,000,000, and from which defend- 
 ants are extracting minerals to the annual value of $1,000,000. 
 It alleges that the title under which defendants claim to hold 
 possession is derived from the Mexican government, and tl)at 
 the same, independentlv of all other defects, is forged and 
 antedated. That defendnnts Iiave, through one Andres Gas- 
 > Moore v. Ferrell, 7 M, R. 282; Hiller v. Colling, 63 Cal. 235. 
 
United States of Ameeica v. Paeeott. 337 
 
 tillero, in their own behalf, petitioned the board of land com- 
 missioners, organized under the act of Congress of March 3, 
 1851, for a confirmation of their claim, which application js 
 now pending on appeal before the District Court of the Uni- 
 ted States for the Northern District of California. ' The bill 
 prays for an injunction to enjoin the destruction of the mine 
 until the title to it is determined by the tribunals to which its 
 adjudication is finally confided. 
 
 P. Della Toeee, district attorney. 
 
 Edmund Randolph and E. H. Stanton, for the United 
 States. 
 
 A. C. Peachey and Geegoet Tale, for defendants. 
 
 McAllistee, J. 
 
 The magnitude of the interests involved, the novelty 
 of this case in some of its features, the fact that the docu- 
 mentary title on which the defendants to a certain extent 
 rely, was obtained from Mexico pending tlie war between 
 that country and this, a few weeks prior to the occu- 
 pation of this country by the American forces, the allegation 
 that such documentary title was procured by a conspiracy to 
 defraud the United States and was forged and antedated,^— are 
 circumstances which have invested this case with no ordinary 
 interest outside these walls. That interest has been reflected 
 upon those who have appeared in court as the representatives 
 of the respective parties, as evidenced by the strenuous and 
 zealous efforts which have been made by the respective counsel. 
 This court is reminded by this condition of things of the 
 remarksof Chief Justice Marshall, in Mitchel andothersv. The 
 United States, 9 Peters; 723: "Though the hope of deciding 
 causes to the mutual satisfaction of parties would be chimer- 
 ical, that of convincing them that the case has been fully and 
 fairly considered, that due attention has been given to tlie 
 arguments of counsel, and that the best judgment of the court 
 has been exercised on the case, may be sometimes indulged. 
 Even this is not always attainable. In tlie excitement pro- 
 voii. VII.— 22 
 
338 iNjuNCTioif. 
 
 dnced by ardent controversy, gentlemen view the same object 
 tlirongh such different media that minds not infrequently re- 
 ceive therefrom precisely opposite impressions. The court, 
 however, must see with its own eyes, and exercise its own 
 judgment, guided by its own reason." 
 
 The present proceeding may be viewed as in the nature of 
 an information on the part of the government through its 
 law officer. It is a bill filed by the district attorney of the 
 United States in their behalf. It sets out the title of the 
 United States to certain premises; that defendants are in pos- 
 session of said premises, which consists of a mine of vast 
 value, and are extracting its minerals to an amount in value 
 of $1,000,000 per annum, and have abstracted already minerals 
 to the amount of $8,000,000. It charges their possession to 
 be tortious, and that the title under which defendants hold 
 such possession was forged, false, antedated and fabricated in 
 pursuance of a conspiracy formed to cheat and defraud the 
 United States of their rights to the said property ; that de- 
 fendants have filed a petition in the name of one Andres Cas- 
 tillero to the board of land commissioners under the act of 
 Congress passed 3d March, 1851, which is pending on appeal 
 before the District Court of the United States for the North- 
 ern District of California, the object of whicli petition is to 
 obtain from the United States a confirmation of the title whicli 
 they pretend to liold from the Mexican government. It fur- 
 ther alleges that defendants are destroying the substance of 
 the mine, that they are unable to respond for the damages 
 which have already accrued and still may accrue, and prays 
 that an injunction may issue to stay the Waste they are com- 
 mitting and threaten to commit, until the determination of 
 the title by the tribunals to which the adjudication of it is 
 confided by law shall take place, and that a receiver be ap- 
 pointed to take charge of the property intermediately. 
 
 This bill has been met by a demurrer and an answer. 
 Double pleading in a court of equity is not allowable; and 
 the answer in tliis case being a general one, overrules the de- 
 murrer upon the settled doctrine of the court: Taylor v. 
 Luther, 2 Sumner, 230. So that the demurrer may be dis- 
 missed without further observation, and the case stand on the 
 bill and answer: Ihid. 
 
United States of America v. Paeeott. 339 
 
 Wlien the motion for injunction was made, the solicitors 
 foi" defendants objected to any affidavit offered by complain- 
 ants as to title. It was agreed that snch affidavit might be 
 read, and its admissibility argued on the discussion by coun- 
 sel of the merits, and decided by the court in its opinion. 
 Affidavits for defendants responsive to those on the part of 
 complainants as to title, were admitted to be read, subject 
 to the decision which should be made by the court on .the 
 admissibility of the complainants' affidavits to title. 
 
 This motion for an injunction could be disposed of in a 
 comparatively brief time; but the objections urged against the 
 jurisdiction of the court, and to the character and form of this 
 proceeding, have been numerous, and urged with so much 
 zeal and apparent conviction in their correctness that it is 
 proper that special notice should be taken of them, in the hope 
 of convincing parties that the court has " fairly considered the 
 case, that due attention has been given to the arguments of 
 counsel, and that the best judgment of the court has been ex- 
 ercised in the case." 
 
 The first question, then, is the admissibility of affidavits as 
 to title, presented by defendants. 
 
 Admission of Affidavits. 
 
 Tlie right of the plaintift' to read affidavits on a motion for 
 injunction is declared to be a well-settled rule. It is his un- 
 questionable right, say the court in Kensler v. Clark, 1 Rich- 
 ardson, 620, to read affidavits on an application for an injunc- 
 tion in the support of the allegations in his bill before the 
 coming in of the answer; and as constituting a part of his 
 case, they may be read on any subsequent motion to perpet- 
 uate or dissolve the injunction. But the court lays down the 
 rule that no affidavits filed subsequently to the coming in of 
 /the answer can be read, for the reason it was calculated to 
 surprise the defendant. The only exception to this rule of the 
 right of plaintiff is to be found in the eases of waste and such 
 as are analogous, for the purpose of .preventing irreparable 
 mischief; and that exception limits the affidavits to waste, 
 insolvency, or other collateral fact, and does not permit them 
 to extend to the question of title. This exception as to affi- 
 davits as to title was asserted by Lord Eldon in Morjphett v. 
 
340 Injunctions. 
 
 Jones, 19 Yesey, 350, and in Norway v. Bowe, lb. 157; and 
 seems to be recognized by the text writers, by the case cited 
 above from South Carolina, and by other decisions. 
 
 Mr. Justice Stoey, in the case of Poor v. Oarleton, 3 Snm- 
 ner, 70, 77, has intimated his doubts as to the existence of a 
 good reason for the rule which denies the right of a complain- 
 ant to read affidavits as to title, in a case of irreparable mis- 
 chief; and the remarks of the learned jndge upon the point 
 are entitled to much consideration, and may lead hereafter to 
 a qualification of the rnle. The proposition for which he 
 contends is, that affidavits to title should, upon general prin- 
 ciples, be looked to, not for the purpose of establishing title, 
 but to enable the court to see if probable foundation existed 
 to believe that the complainant may establish his title and be 
 liable intermediately to irreparable injury. 
 
 In the case of Toiin v. WalTcinshaw, decided by this court, 
 it went into a full consideration of the case of Poor v. Carle- 
 ton/ and inasmuch as the point was not directly before the 
 court in that 'case, and the learned jndge in that case admitted 
 that affidavits to title were only to be looked to for a qualified 
 purpose, considering too, as well settled, that on a motion for 
 an injunction a court of equity is not to look into title, this 
 court came to^ the conclusion it would be better to adhere to 
 the ancient rule until qualified by some anthoritative decision 
 directly on the point. The court, therefore, decided that affi- 
 davits to title could not be read. The law announced in, that 
 case must be applied to the present, and so much of the affi- 
 davits of plaintiff in this case as goes to title must be discarded 
 by the court in the adjudication of this motion. The affidavits 
 of the defendants, which were admitted to be read as responsive 
 to plaintiff's affidavits, must be also rejected. As the court 
 excludes the plaintiffs, on a consideration of the qnestion of 
 their admissibility, which by consent of parties when tliey 
 were read was reserved for its decision, the affidavits of the 
 defendants must share the same fate. The only ground on 
 which they could be received was that they were responsive 
 to the affidavits of complainant as to title. In the absence of 
 any such, no rule is better settled than that defendants can 
 not read affidavits to support their answer: 1 Hoffman's Ch. 
 P., 360; Roberts v. Anderson, 2 Johns. Ch. K.. 202. In the 
 
United States of America v. Paeeott. 341 
 
 language of Lord Eldon, in Norway v. Eowe, 19 Vesey, 157» 
 "The title must be taken on the answer." The case, there- 
 fore, is to be discussed on the pleadings — the allegations in 
 the bill as verified by the affidavits accompanying them, ex- 
 clusive of any portion of them which go to title, and the 
 denials in the answer. 
 
 Necessary Parties. 
 
 A preliminary inquiry is, as to the jurisdiction of the court 
 as to the parties. 
 
 The decision of this court in the case of Tohin v. WalMn- 
 shaw, has been cited as an authority which settles the ques- 
 tion raised in favor of the objection taken by the defendants' 
 counsel to the jurisdiction of this court, on the ground of 
 want of parties. 
 
 A reference to the structure of the bill in that case and in 
 this, will show that whatever may have been the language of 
 the court arguendo in that case, it can not be cited as an 
 authority in the present. In that case it was alleged that 
 defendants held under a conveyance from one Andres Castil- 
 lero. There was no allegation that he was beyond the juris- 
 diction of this court, nor any prayer that he might be brought 
 into court, should he at any time come within the reach of its 
 process. It prayed for the cancellation of deeds in the hands 
 of absent persons; it prayed for an account of all the profits 
 of the mine for the preceding year, and for a perpetual injunc- 
 tion. By the subsequent pleadings it was ascertained that 
 two persons resident in this city, within the jurisdiction of 
 this court, equally interested with defendants, were not made 
 parties to the bill. It was in relation to such a bill the court 
 said, " But the bill asks that an account of profits belonging 
 to other people be taken, and title deeds to property in which 
 those other and absent persons are much interested and to a 
 larger extent than the defendants themselves, shall be can- 
 celed." The court further said, " But there is one feature in 
 this case which distinguishes it from all others. It is, that 
 two absent persons (Farrott and Bolton), whose interests 
 would be affected by a decree, are residents of this city, and 
 within the reach of tlie process of this court. But if by 
 bringing them before the court this case would be beyond the 
 
342 Injunction. 
 
 jurisdiction of this court, can the court by indirection adjudi- 
 cate upon" their rights, and thus do indirectly what it could 
 not do directly?" 
 
 Now, the present bill makes all persons in interest, within 
 the reach of the process of the court, parties to the bill. It 
 alleges that certain persons who are absent from this State 
 hold possession of the mine, by tlie defendants as their agents, 
 and prays, if they come within the jurisdiction of this court, 
 they may be made parties. It asks for the delivery and can- 
 cellation of no deeds, nor any account of profits. It asks 
 from the defendants the value of the ore extracted and car- 
 ried away by either of them, or by any otlier person with 
 license and consent of them, or either of them, while in pos- 
 session, as alleged wrongdoers, of the premises. 
 
 It alleges that under the act of 3d March, 1851, entitled 
 "An act to ascertain and settle private land claims in the 
 State of California," a petition in conformity with the provis- 
 ions of that act has been submitted to the board of land com- 
 missioners in the name of one Andres Castillero, for and 
 in behalf of defendants, asking for a confirtnation of tlie 
 claim to the premises in dispute held under a Mexican title; 
 which proceeding is pending on appeal before the District 
 Court of the United States for the Northern District of Cali- 
 fornia, before which tribunal the alleged title of the premises 
 is now awaiting adjudication. The bill prays for an injunction 
 to enjoin the destruction of the premises before the termination 
 of that adjudication. 
 
 The averment of the answer which raises the objection to 
 the jurisdiction is that certain persons, resident in foreign 
 countries, are associated with defendants, and the names of 
 some of them are unknown. The lands and mine are admitted 
 to be in possession of the agents of the company of which the 
 said non-residents are parties. The question presented is 
 whether, where the parties are prosecuting a claim in the- 
 district court by their attorneys, and holding possession and 
 enjoying the proceeds of the premises by their agents, the 
 court has the power to protect the property, or is deprived of 
 that power because some of the parties are without the juris- 
 diction of the court. 
 
 The affirmative of this proposition, if sustained, would be 
 
United States of America v. Paeeott. 343 
 
 attended with singular results. It would only be necessary for 
 parties to associate themselves with foreign parties who were 
 beyond the process of this court, and entire exclusion from any 
 equitable relief required by others who may have rights to 
 or claims on the property in their possession, Would be tlie 
 result. 
 
 'The general rule in a court of equity is, that all persons 
 who are interested in the object of the bill are necessary and 
 proper parties. There are exceptions to this rule, which are 
 governed by one and the same principle, which is — as the 
 object of the general rule is — to accomplish the purposes of 
 justice between all the parties in interest; and it is a rule 
 founded in some sort upon public convenience and policy 
 rather than upon positive municipal or general jurisprudence. 
 Courts of equity will not suffer it to be so applied as to defeat 
 the very -purposes of justice, if they can dispose of the merits 
 of the case before them without prejudice to the rights of other 
 persons who are not parties, or if the circumstances of the case 
 render the application of tlie rule impracticable: Story's Eq_ 
 PL, § 77. The first exception to the rule stated by Judge 
 Story is founded upon the utter impracticability of making the 
 necessary or proper parties, by reason of their being beyond 
 the process of the court: Ibid., § 79. This ground of excep- 
 tion is peculiarly applicable to suits in equity in the courts of 
 the United States. If, therefore, this rule as to parties were 
 of universal application, many suits in those courts would be 
 ineapHble of being sustained therein; and Judge Story states 
 that the general rule in the courts of the' United States is to 
 dispense, if consistently with the merits of a case it can pos- 
 sibly be done, with all parties over wliom the court would not 
 possess jurisdiction: Ihid., § 79. 
 
 Parties to bills are divided into three classes — nominal, 
 necessary and indispensable. 
 
 Tlie act of Congress of 28th February, 1839, 5 U. S. 
 Ustatutes, 321, and the 47th rule of equity of the circuit 
 courts of the United States were enacted to remove the disa- 
 bility alluded to by Judge Story, in the circuit courts, in the 
 administration of justice, where some of the parties were 
 beyond the jurisdiction of the court. The judicial construc- 
 tion placed upon those enactments is, that they have dispensed 
 
344 Injunction. 
 
 with the dntj of making nominal or necessary parties where it 
 is impracticable to do so by reason of their being beyond the 
 reach of the process of the court; but the presence of an indis- 
 pensable party is as necessary to the jurisdiction of the court 
 as it was before the enactment of the rnle and the law. The 
 presence of an indispensal)le party is demanded by the con- 
 sideration that no court of equity, however general its juris- 
 diction, can adjudicate directly upon the rights of a party 
 unless he is actually or constructively present: 12 Wheaton, 
 194. The absent parties are undoubtedly necessary parties, 
 and, had they been witiiin reach of the process of this court, 
 must have been made parties to the record. But are they, 
 under the circumstances, so indispensable as parties, as to 
 prevent any decree by tiiis court? 
 
 In this case it is alleged in the bill that certain parties 
 reside out of the jurisdiction of this court; and it prays that 
 they may be made parties whenever they shall be found within 
 its jurisdictioiT, in conformity with the 22d rnle of equity. 
 The answer admits that they reside beyond the jurisdiction 
 of the court, and the names of some of them are unknown to 
 defendants. It admits the possession of the property by the 
 agents of those absent parties, which agents are made parties 
 to this bilh The same parties are in the district court prose- 
 cuting a claim to the same property in the name of Andres 
 Castillero against the plaintiffs. No act is required to be 
 done by these parties. They are before the district court, 
 where their rights in the property are to be adjudicated. Not 
 actually, they are constructively present on this motion. 
 
 In the case oi-Qshorn v. United States Bank, 9 Wheaton, 
 738, the bill was against, and the decree was rendered against, 
 an individual who was the agent of another, who was not a 
 party to the bill, being a sovereign State, and who could not 
 be made a party. The objection in that case was that as the 
 real party can not be brought before the court a suit could 
 not be sustained against the agents of that party. "Why," 
 ask the court, p. 843, "may not it [this court] restrain him 
 from the commission of a wrong which it would punish liim 
 for committing? " The case of Osborn v. United States Bank 
 was a demand for money of the principal in the hands of an 
 agent, which belonged to a principal not a party to the record. 
 
United States of America v. Pakkott. 345 
 
 Hence, this court in its opinion in the case of Tdbin v. Walh- 
 inshaio, in commenting on that, stated as one of the grounds 
 of difference, tliat in the case of Tobin v. WalJcinshaw " there 
 is no question of principal and agent in this case." 
 
 There would seem to be no reason to restrain the court from 
 acting, for want of parties. To do so in this case would be a 
 denial of justice. The parties, while using another judicial 
 tribunal for the confirmation of their alleged title would be 
 enabled by reason of the absence of some of them without the 
 jurisdiction, to bar the party against whom they are prose- 
 cuting their claim to the property, from the interposition of 
 this court to preserve and pi'otect that property pending such 
 prosecution. The foreign parties would thus be making use 
 of an American tribunal to enforce their claim, while the}' 
 availed themselves of their absence to preclude the complain- 
 ants from a right to which the humblest individual is enti- 
 tled, — to invoke an injunction for the preservation of the prop- 
 ertj'; for only to that extent can the action of this court go. 
 
 Judge Story lays down the ordinary rule to be, that where 
 the persons who are out of the jurisdiction are mere passive 
 objects of the judgment of the court, or their rights are merely 
 incidental to those of the parties before the court, then, inas- 
 much as a complete decree may he obtained without them, 
 they may be dispensed with. If such absent persons are to 
 be active in the performance and execution of the decree, or 
 if they have rights wholly distinct from those of other parties, 
 or if the decree ought to be pursued against them, they are 
 indispensable: Story's Eq. PL, § 81. 
 
 Speaking of a defect for want of parties, this author says, 
 "In many instances the objection will be fatal to. the whole 
 suit. In others, it will not prevent the court from proceeding 
 to the decision of other questions between the parties actually 
 before it, even though such a decision may incidentally touch 
 upon or question the rights of the absent parties:" Ibid. 
 
 In Smith v. The Hibernian Mine Co., 1 Sch. & Lefroy, 
 23S, Lord Eedesdale says, "The ordinary practice of courts 
 of equity in England, when one party is out of the jurisdic-, 
 tion and other parties within it, is to charge the fact in the 
 bill; and then the* court proceeds against the other parties 
 notwithstanding he is not before it. It can not proceed to 
 
346 Injunction'. 
 
 compel him to do any act, but it can proceed against the other 
 parties; and if tlie disposition of the property is in the power 
 of the other parties, the court may act upon it." I remember 
 (says the chancellor) a case where a bill was filed to sell an 
 estate for payment of debts, and the heir at law, who was en- 
 titled to tiie surplus after payment of debts, was out of the 
 jurisdiction. The court ordered the estate to be sold for the 
 payment of debts; the heir (say the court) might file a bill to 
 set aside the proceedings if they were erroneous. 
 
 In the case at bar, no act is required to be performed by 
 the absent parties in the execution of the decree; their inter- 
 ests are incidental only to those of defendants, and they are 
 passive parties; the possession of the property is in them by 
 their agents. They may come into this court at any time; 
 they are, in the name of Oastillero, prosecuting for the con- 
 firmation of tlieir claim to the property in the hands of their 
 agents, the defendants. 
 
 The case of Covron v. Millaudon, 19 Howard, 113, has 
 been cited by defendants' solicitors. In that case the bill was 
 filed to set aside a sale of property on the ground of irregu- 
 larities in insolvent proceedings. If the sale were set aside, 
 the defendants would have been enabled to recover from the 
 creditors who had received their money. The court say, " The 
 creditors, therefore, are the parties chiefly concerned in these 
 proceedings, and as it respects those to whom the proceeds of 
 the estate have been distributed, they are directly interested 
 in upholding the sale; for if it is set aside, and the proceed- 
 ings declared a nullity, they would be liable to refund the 
 share of the purchase money each one had received in the 
 distribution." 
 
 This latter case simply aflSrms the principle announced in 
 Mallow V. Hinde, 12 "Wheaton, 194, and in ToMn v. WalJcin- 
 shaw, decided by this court, that indispensable parties, as they 
 were considered in those cases to have been, could not be dis- 
 pensed with. 
 
 We can not consider the objection to the jurisdiction for the 
 want of parties as tenable. 
 
 JSTew Matter in Answer. 
 
 Whether the answer should be regarded on this motion 
 more than an affidavit, is the next question which has been 
 
United States of Ameeica v. Paeeott. 347 
 
 raised. The ancient doctrine may be as contended for by the 
 solicitors of complainants, but we think that upon the ground 
 of reason and more recent authority, all direct denials in the 
 answer responsive to the allegations of the bill, and not mat- 
 ters of avoidance, ought to have the effect of an answer as 
 evidence on this motion as on a final hearing. 
 
 On a motion to dissolve an injunction, Mr. Justice Story 
 says, the ground of " dissolving an injunction upon a full de- 
 nial by the answer of the material facts is, that in such a case 
 the court gives entire credit to the answer, upon the common 
 rule in equity that it is to prevail, if responsive to the charges 
 of the bill, until it is overcome by the testimonj' of two wit-' 
 nesses, or of one and other stringent corroborative circum- 
 stances." 3 Sumner, 77. 
 
 It is evident, then, that Judsre Story considered that even 
 on a motion to dissolve an injunction, the same effect was 
 to be given to the answer as is to be given to it on the 
 hearing. 
 
 As to the effect to be given to matters set up in the answer 
 by way of avoidance, there has been some conflict of author- 
 ity. In New Yorkj South Carolina and New Jersey, the doc- 
 trine is well settled that matter of avoidance set out in the 
 answer responsive to the allegations in the bill, are to be con- 
 sidered as equivalent to an affidavit on a motion for injunction. 
 In Maryland and Georgia, a contrary doctrine obtains. In 
 the former State (3 Bland Ch. R. lf>2), w^hile enforcing their 
 view of the rule, the court did so upon a single authority in' 
 Bardiston's Ch. Keports, one hundred and thirty years old; 
 and the Maryland court say, " that the rule was not mentioned 
 in any English digest, compilation, or book, other than that 
 book." 
 
 The court in Georgia (1 Kelly, 7), relied solely for their 
 construction on the case of Hart v. Ten Eych, 2 Johns. Ch. 
 63. But the decision in this case has been repeatedly reversed 
 in New York. 
 
 As to the effect of the answer, then, in this case, the court 
 considers that on this motion, the denials made in it on per- 
 sonal knowledge, direct and responsive to 'the bill, are to re- 
 ceive the consideration due to them as if it was on the hear- 
 ing, but that matters set up by way of avoidance are to be 
 received as affidavits. 
 
348 Injunction. 
 
 As this question was raised at the bar, it is deemed proper 
 to dispose of it, were it only to settle the practice of this court 
 in view of the conflict of authority wliich exists. 
 
 Jwrisdlction of TJ. 8. Courts. 
 
 The next subject of inquiry is the objection made to the 
 jurisdiction of the court, by reason of the subject-matter. It 
 is urged that its jurisdiction is special and limited,, and does 
 not extend its aid in an auxiliary proceeding to a court not gov- 
 erned by the principles of the common law. That tliis pro- 
 ceeding is auxiliary, and not the exercise of original jurisdic-' 
 tion, and is dependent upon that now exercised by the district 
 court under the act of 1851. That the_suit must be depend- 
 ing in a common law court, and between the same parties; 
 and the case of Clarke v. Mathewson, 12 Peters, 164, and that 
 of Dunlap v. Stetson, 4 Mason, 349, are cited to sustain these 
 propositions. These cases were decided upon the question of 
 jurisdiction as to the want of parties. Nothing was before the 
 court as to jurisdiction as to the subject-matter. It had been 
 decided by Judge Story (2 Sumner, 262, 268), that a bill of re- 
 vivor, being a suit between the citizens ot'thesame State, the 
 court had no jurisdiction. On appeal to the Supreme Court 
 in 12 Peters, 164, they reversed the decision of the court 
 below; and all that was decided was that a bill of revivor was 
 not an original bill, but a mere continuation of it, and if the 
 plaintiff in the original suit was competent to sue in the cir- 
 cuit court, his administrator, though a citizen of the same 
 State with defendant, might revive the suit, the two bills being 
 considered one and the same case. 
 
 The case cited from 4 Mason, 360, related also to the juris- 
 diction as to parties, the point being whether the suit could be 
 sustained, the defendant being a citizen of Massachusetts, and 
 not resident in Maine, and the subpoena having been served 
 upon him in Massachusetts; and the decision was, that injunc- 
 tion would be issued by the court to enjoin a judgment obtained 
 in the same court, although the original plaintiffis a citizen of 
 another State, and this upon the ground that the injunction bill 
 was part of the original bill. The court can not consider that 
 these oases, which were decided on the question of jurisdiction 
 under Sec. 11 of the Judiciary Act, have any bearing on the 
 
UisriTED States of America v. Parkott. 349 
 
 jurisdiction as to subject-matter. They decide tliat an injunc- 
 tion bill is part of the original bill it seeks to enjoin, and that 
 in the issue of it the court is not in the exercise of originiil 
 jurisdiction; and they predicate the same decree of a bill uf 
 revivor. But vrhat is the jurisdiction of this court as to the 
 subject-matter, they do not establish. This must be done by 
 reference to the constitution, acts of Congress, and the judi- 
 cial construction they have received. 
 
 There is no doubt that the jurisdiction of the circuit courts 
 of the United States is limited to certain persons and sub- 
 jects, but within those limits is the same in every State, and 
 complete and full. 
 
 The Constitution provides, Art. 3, Sec. 2, that the judicial 
 power shall extend to all cases in law or equity specified there- 
 in, among which are enumerated "Controversies to wliioh 
 the United States shall be a party." The Judiciary Act of 
 1789 (1 U. S. Statutes, 78), enacts that the circuit courts shall 
 have original cognizance with the courts' of the several States, 
 of all suits at common law and in equity, where the matter in 
 dispute exceeds the sum of five hundred dollars, and the 
 United States are plaintiffs or petitioners. 
 
 By the act organizing this court (10 U. S. Statutes, 631), it 
 is declared that the court organized thereby " shall in all 
 things have and exercise the same jurisdiction as is vested in 
 the circuit courts of the LTnited States, as organized under 
 existing laws." 
 
 The jurisdiction of the circuit courts of the United States 
 is thus summed up by tlie Supreme Court, in The State of 
 Pennsylvania v. The Wheeling Bridge Company, 13 How- 
 ard, 563: "Chancery jurisdiction is conferred on the courts 
 of the United States, with the limitation that suits in equity 
 shall not be sustained in either of the courts of the United 
 States in any case where plain, adequate and complete rem- 
 edy may be had at law." 
 
 The Supreme Court has placed in several cases a judi«ial 
 construction upon these words. In Jioyce v. Qrundy, 3 Pe- 
 ters, 210, they say that the words " plain, adequate and com- 
 plete" were declaratory, making no alteration in the rules as 
 to equitable remedies. In Bohinson v. Campbell, 3 Wlicat- 
 011, 212, that to determine the signification of these woi'd.? 
 
350 Injunction. 
 
 resort must be had to the principles of the common law of 
 England, and not to the laws of the State where the court 
 sits; and that if the State law has given a legal remedy for 
 an equitable right, the jurisdiction of the circuit court is not 
 affected; and that to har a suit in equity, the remedy at law 
 must be as efficient to the ends of justice and its complete 
 and prompt administration, as the remedy in equity: 3 Pe- 
 ters, 210. 
 
 It is difficult to see how, under the constitution, the Judi- 
 ciary Act, and tlie judicial constructions given, it can be suc- 
 cessfully urged that the circuit courts, within the limits pre- 
 scribed as to persons and subjects, have not a complete and 
 full equity jurisdiction. 
 
 In this case the court has jurisdiction as to parties, because 
 the United States are plaintiffs. They have jurisdiction of 
 the subject-matter, because it exceeds the amount in value 
 prescribed by law, and because there is no "plain, adequate 
 and complete remedy " for the injury complained of. 
 Whether, in affording the relief, they exercise original or aux- 
 iliary jurisdiction, has nothing to do with the question, un- 
 less an inquiry should arise where a party whose citizenship 
 does not entitle him to invoke the original jurisdiction of the 
 federal courts, attempts to do so. The jurisdiction of the cir- 
 cuit courts of the United States has been defined by the Su- 
 preme Court. 
 
 In The State of Pennsylvania v. The Wheeling Bridge, 13 
 Howard, 563, the Supreme Court say, " The rules of the High 
 -Court of Chancery have been adopted by the. courts of the 
 United States, and there is no other limitation to the exercise 
 of a chancery jurisdiction by these courts, except the value of 
 the matter in controversy, the residence or character of the 
 parties, or a claim which arises under a law of the United 
 States. In exercising this jurisdiction, the courts of the Union 
 are not limited by the chancery system adopted by any State, 
 and they exercise their functions in a State where no court of 
 chancery has been established. The usage of the High Court 
 of Chancery in England, wlienever the jurisdiction is exercised, 
 governs the proceedings. This may be said to be the'commou 
 law of the country, and since tlie orgaijization of the govern- 
 ment, has been observed. Under this svstem, where relief can 
 
United StXtes op America v. Parkott. 351 
 
 be given, similar relief may be given by the courts of the 
 Union." 
 
 We can not, therefore, consider the objection to the juris- 
 diction of this'court as to the subject-matter, available. In 
 granting the relief prayed for, it has all the powers of the 
 English Chancery. 
 
 JEquitable Relief against Trespass. 
 
 We have seen that within the limits of their jnrisdiction as 
 to persons and subject-matter, the only restriction upon their 
 equity powers is, that there be no plain or adequate remedy at 
 law. 
 
 Have the plaintiffs such complete remedy at law as should 
 bar this suit? The rule is, that the party may come into 
 equity, although he has a remedy at law; if such remedy be 
 not plain, complete and adequate, a fortiori, if he has no rem- 
 edy at law, he is entitled to the aid of a court of equity. The 
 protection of the mine is the object contemplated by this bill; 
 the preservation of its substance, until the title to it is ascer- 
 tained by the tribunals to which the question is exclusively 
 confided, is tlie prayer of the bill. That tribunal has no juris- 
 diction as to waste or destructive trespass. The title is tlie 
 only question left to their decision. They have no power to 
 save the property from destruction ; and if this court possess 
 none, complainants are without remedy. The administration 
 of justice can neither be " complete nor prompt." 
 
 Stress has been placed upon the fact that previously to the 
 institution of this bill, no action at common law has been insti- 
 tuted by complainants. It is urged that such step was neces- 
 sarily preliminary to the filing of this bill, and the very form 
 of the action is prescribed. Now in the ordinary course of 
 things, where one claims title to real estate, his first step 
 ordinarily is to enforce his claim in one of the ordinary courts 
 of justice, in the form of an action of trespass to try title, or 
 one of ejectment. The liniited jurisdiction of a court of law 
 may render it necessary that he shoiild have the interposition 
 of a court of equity to obtain a discovery in aid of his common 
 law suit; or he may have a defense equitable in character, of 
 which he could not avail himself in a court of law; or the 
 plaintiff may be attempting to avail himself of a legal title 
 
352 Injunction, 
 
 inequitably.; and in many other instances it may be -necessary 
 to invoke the jurisdiction of equity. The fact that a party has 
 not taken this usual step is matter of suspicion,^ and clearly 
 shows, where no reasons exist for the omission, the want of 
 that diligence the law requires from parlies in the pursuit of 
 their alleged rights. Hence, we find frequent allusions in the 
 cases to the fact whether the party has instituted his action at 
 law before he came into equity; and in a certain class of cases 
 the courts have refused to interfere when an action at law has 
 not been brought. The rule is, however, by no means univer- 
 sal. That the institution of an action at common law is an 
 indispensable prerequisite in all cases to the institution of a 
 bill for an injunction, can not be admitted. No case has been 
 cited which has made the omission of a party to have pre- 
 viously instituted a suit at law, the sole ground for refusing 
 an injunction, where fraud was alleged and irreparable mis- 
 chief the injury sought to be remedied. But the reasons for 
 the ordinary rule do not exist in this case; and the maxim 
 '•'•Cessante ratione cessat et ijpsa lex" must apply. 
 
 There is a pending litigation between complainants and 
 Andres Castillei-o, under whom defendants claim, and in 
 whose name they are, in their own behalf and that of their 
 associates in interest, now prosecuting the title to the premises 
 in dispute. To protect the substance of that property pend- 
 ing that litigation, is the object of this bill. The objection is 
 that snch litigation must be pending in a particular form, and 
 in a court of common law. We do not consider this proposi- 
 tion correct, and the cases where the courts of chancery in Eng- 
 land have interposed to protect property in litigation in the 
 ecclesiastical courts, disaffirm that doctrine. To these we 
 shall hereafter refer. For the present we will inquire whether, 
 under the peculiar circumstances of this case, the omission of 
 the complainants to have instituted an action in a court of 
 common law to try title, is sufficient to defeat the present ap- 
 plication. It is true, the United States hold a legal title to 
 the premises. Suppose that, counting upon that title, they 
 had sued for the recovery of the possession, might not the de- 
 fendants in that suit have pleaded to the action the act of Con- 
 gress passed 3d March, 1851, entitled an "Act to ascertain and 
 settle the private land claims in the State of California," and 
 their proceedings under it pending in the district court? 
 
United States of America v. Pakeott. 353 
 
 By that act the United States are bound to hold their title 
 subservient to the adjudication of special tribunals, with rules 
 of decision very different from those which obtain in the ordi- 
 nary tribunals of the country. An attempt on the part of the 
 United States, so long as that act is unrepealed, to avail of their 
 legal title in a court of common law, would have been inequi- 
 table and unjust. They have made no such attempt. They do 
 not propose to do so by this bill, further than as they allege it 
 is necessary, in order to preserve the property until the ques- 
 tion of title is determined as provided for by law. The fact 
 that they have made their title dependent upon the action of 
 special tribunals, and thus have deprived themselves of the 
 right to enforce it at common law, can not bar them from 
 enforcing their equitable right to prevent the destruction of the 
 property, on the ground that they had not previously to their 
 application brought an action at common law to enforce that 
 title. 
 
 Another objection to the relief prayed for is, that an injunc- 
 tion can not be granted to enjoin a trespass where the title is 
 disputed. 
 
 In a case of mere trespass, or a technical waste where the 
 mischief is not imminent, where no equitable circumstances 
 appear and no fraud is alleged, and where the title of plaintiff is 
 disputed in the manner prescribed by law, the rule is correctly 
 stated. 
 
 Where the mischief sought to be protected against is irrep- 
 arable and imminent, where the bill alleges fraud and ante- 
 , dating in the execution of the title-papers set up by the de- 
 fendants, and their genuineness is affirmed only on informa- 
 tion and belief — the case does not exist, to the knowledge of 
 this court, where the rule contended for is to be literally ap- 
 plied. No one of the cases cited by the solicitor for defend- 
 ants reaches this case. The authorities are numerous. To 
 comment upon theril in detail would be an unconscionable 
 consumption of time. 
 
 The strongest case cited from the English authorities is 
 that of Pillsworth v. Ropton, 6 Vesey, 51; and from the 
 American, those of Storm v. Mann, 4 Johns. Ch. 21, and 
 Pernj v. Parker, 1 "Woodbury & Minot, 281. 
 
 In the former case the lord cl:ancellor said, " I do not rec- 
 VOL. VII.— 23 
 
354 Injunction. 
 
 ollect that the court ever granted an injunction under any 
 such circumstances." The cliaracter of the waste is not men- 
 tioned; and his lordship concluded by saying, "I remember 
 perfectly being told from the bench, very early in my life, 
 that if the plaintiff filed a bill for an account and an injunc- 
 tion to restrain waste, stating that the defendant claimed by 
 a title adverse to his, he stated himself out of court." Now, 
 this parol authority which his lordship applied to that case, 
 decided in 1801, must have carried back his memory to about 
 the middle of the eighteenth century. In 1837, nearly a cent- 
 ury afterward. Judge Story says, " Indeed, there are numer- 
 ous cases which show the gradual meliorations or changes, 
 often silent and almost unperceived, which have been intro- 
 duced into the practice of the courts of equity, to obviate the 
 inconveniences which experience has demonstrated, and to 
 adapt the remedial justice of these courts to the new exigencies 
 of society." The learned jurist adverts to an instance by way 
 of illustration and, in a subsequent part of his opinion, al- 
 ludes to the qualification of the doctrine which existed, that 
 afiidavits could not be read in support of the title of the 
 plaintiff, which is contradicted by the answer. " I can not well 
 see," said he, "why the court, to prevent irreparable mischief, 
 may not look to afiidavits in affirmance of the plaintiff's title, 
 not so much with a view to establish that title, but to see 
 whether it has such probable foundation, in the present stage 
 of the cause, as to entitle the plaintiff to be protected against 
 irreparable mischief, if upon the hearing it should turn out to 
 be well founded." Judge Story has alluded to the proposition 
 laid down by the chancellor in the case of Pillaworth v. Hop- 
 ton, and says, " The interference of courts of equity in restraint 
 of waste may have been originally confined to cases founded 
 in privity of title; and for the plaintiff to state a case in which 
 the defendant pretended that the plaintiff was not entitled to 
 the estate, or in which the defendant was asserted to claim 
 under the adverse right, was said to be for the plaintiff to state 
 himself out of court. But at present the courts have by 
 insensible degrees enlarged the jurisdiction to reach cases of 
 adverse claims and rights not founded on privity, as for in- 
 stance, to cases of trespass with irreparable mischief: " Story's 
 Equity Jurisprudence, § 918. 
 
UnriTED States of America v. Paerott. 355 
 
 In Pillsworth v. Hopton it is also to be observed that the 
 plaintiflf had failed in an ejectment suit he had brought; and 
 further, there was no equitable circumstance calling for the 
 interposition of a court of equity. 
 
 In the second case, that of Storm v. Mann, 4 Johns. Ch. 
 21, decided in 1819, cited to sustain the general proposition as 
 to dispute of title, the defendant had been for a long time, and 
 wasj^t the time, in possession; the nature of the waste is not 
 stated, and no special ground was taken for equitable relief, 
 nor any explanation made for the delay. The principle as- 
 serted in this case is, that a court of equity will not interfere 
 where rights are properly determinable in a court of law 
 where an adequate remedy can be found. In this case the 
 court referred to the case of Pillsworth v. Hopton, above 
 referred to, as an authority for saying, " If the plaintiff in his 
 bill states an adverse claim in the defendant, he states himself 
 out of court." '\ye have seen the views of Judge Story on 
 this point; and it is extraordinary that the principle ever 
 should have been asserted in any case in such general terms 
 that a party setting forth an adverse claim in the bill states 
 himself out of court. 
 
 There are few cases which can be imagined where one en- 
 ters upon land and exercises acts of ownership, that he can not 
 be said in common parlance to dispute the title of the owner 
 so soon as he is known to him. We shall see, by reference to 
 authority, that no such principle now exists. 
 
 The last American case cited is that of Perry v. Pa/rJcer, 1 
 "Woodbury & Minpt, 281. The bill in] this case was to enjoin 
 the cutting of the dam and gates of the complainant, and 
 Mr. Justice "Woodbury, after noticing the cases in which 
 injunction has been refused on the ground of the right being 
 disputed, says, " Some cases of necessity, where the danger is 
 great and the injury irreparable, may in England be regarded 
 as exceptions;" and he refers to several cases decided in the 
 High Court of Chancery. It is to be observed that in this case 
 there was no fraud alleged, no irreparable mischief suggested 
 nor other equitable circumstances. The judge, in the absence 
 of them, refused the injunction. But he states, after alluding 
 to the exceptions in England, his own convictions as to the law. 
 "And I am inclined to hold," he said, " that a mere denial of 
 
356 Injunction. 
 
 title is never suiBcient, as snch denial may be made for delay 
 and mischief, unless as before remarked it is accompanied by 
 circumstances showing it to be in good faith." If a denial un- 
 accompanied by other circumstances is never sufficient, it seems 
 that a denial on mere " informatipn and belief" as in this case, 
 of the cliarges of fraud, forgery, and antedating made against 
 the documentary title of defendants, would be insufficient. A 
 careful examination of all the authorities cited by defendant 
 only shows, in the opinion of tlie court, that in the case of com- 
 mon trespass, in the absence of equitable circumstances, an 
 injunction will not issue if the title of plaintiff is disputed; 
 that the pendency of a suit is not of itself a ground for the 
 interference of a court of equity; tliat a party may by laches, 
 or delay unaccounted for, or by an omission to bring an action 
 at law, there being no reason for the omission, deprive him- 
 self of the right to the interposition of a court of equity. 
 
 There is no one of those cases which assert that a party, by 
 simply disputing plaintiff's title, can defeat his application, in 
 a case resembling the present. 
 
 Tiie true rule will be found by referring to the English and 
 American authorities. 
 
 That decisions directly in point, on either side, are to be 
 found to every part of this case, is not to be expected. It is 
 novel in some of its features. But a new case does not create 
 necessarily a new principle. 0. J. Marsliall, in Osborn v. Barik 
 United States, 9 Wheaton, 841, stated, " The appellants admit 
 that injunctions are often awarded for the protection of par- 
 ties in the enjoyment of a franchise, but deny that one has 
 ever been granted in such a case as this. Bat, although the 
 precise case may never have occurred, if the same principle 
 applies the same remedy ought to be afforded." 
 
 Principles have been enunciated both in England and this 
 country, the application of which will dissipate all difficulty 
 arising from the novelty of this case. 
 
 Lord Redesdale, than whom there is no higher authority, 
 and of whom the court say, in Bogardua v. Trinity Chwch, 
 4: Paige's Ch. 195, "His opinion upon a case of equity 
 pleadings is always esteemed the highest authority," and in 
 England, where his treatise is received by the whole jjro- 
 f'3Ssion, "as an authoritative standard and guide," is clear and 
 full upon this point. 
 
United States op Ameeica v. Paekott. 357 
 
 This author, in enumerating the general objects of the 
 jurisdiction of a court of equity, includes the followiug : 
 1. Where the principles of law by which the ordinary courts 
 are guided, give a right, but the powers of those courts are 
 not sufficient to afford a complete remedy, or their modes of 
 proceeding are inadequate to the purpose. 2. Where the 
 principles of law by which tlie ordinary courts are guided 
 give no right, but, upon the principles of universal justice, 
 the interference of the judicial power is necessary to prevent 
 a wrong, and the positive law is silent. 3. To provide for the 
 safety of property' in dispute pending a litigation, and to pre- 
 serve property in danger of being dissipated or destroyed by 
 those to whose care it is by law intrusted, or by persons hav- 
 ing immediate but partial interests: Mitford's Ch. PI. 111. 
 
 Again, he lays down the rule that " pending a litigation, 
 the property in dispute is often in danger of being lost or 
 injured, and in such cases a court of equity will interfere to 
 preserve it, if the powers of the court in which the litigation 
 is depending are insufficient for the purpose." 
 
 Thus, during a suit in an ecclesiastical court for adminis- 
 tration of the effects of a person dead, a court of equity will 
 entertain a suit for the mere preservation of the propecty of 
 the deceased till tlie litigation is determined, although the 
 ecclesiastical court, by granting an administration pendente 
 lite, will provide for the collection of the effects: Ihid. 158. 
 
 In Daniell's Ch. Practice it is stated, that " an injunction 
 will be granted in some cases wliere the parties have both 
 legal titles and legal remedies, but irreparable mischief would 
 be done unless they were entitled to more immediate relief 
 than that which they could obtain at law; it has accordingly 
 been granted when the injunction amounted in fact to an 
 injunction to stop a trespass; for if the court would not inter- 
 fere against a trespasser, he might go on by repeated acts of 
 damage which would be absolutely irremediable." 
 
 The author refers to Flamang's case, in which Lord Thur- 
 low refused to enjoin a mere trespass, but subsequently 
 changed his opinion on the ground that irreparable mischief 
 , would follow his refusal; holding, in effect, that if the defend- 
 ant was using the substance of the thing, the liberty of bring- 
 ing au action j^'as not the only remedy to which in equity he 
 
358 Injunction". 
 
 was entitled; and tlie author concludes: "The same principle 
 has been acted on and applied without scruple in various 
 other decisions; for unless there was a jurisdiction to prevent 
 destruction or irreparable mischief, there would be a great 
 want of justice in the country ": 3 Daniell's Ch. P. 1854. 
 
 The foregoing are the expositions of the general doctrine 
 by two standard text writers, and they presuppose that the 
 property sought to be protected was in dispute. 
 
 In Poor V. Carleton, Mr. Story does not confine himself to 
 the question of title as raised upon the pleadings, but is of 
 opinion that affidavits as to title ought, on general principles, 
 to be permitted to be read. "Whence the necessity, in any 
 case, of reading affidavits as to title of plaintiff, unless upon 
 the ground that such title has been disputed? 
 
 The authorities which exclude affidavits to title do not do 
 BO upon the ground that defendant has disputed the title of 
 plaintiff, but because the court has no jurisdiction to establish 
 title between the parties. 
 
 In The United States v. Gear, 3 Howard, 120, the defend- 
 ant had been sued in two actions, at law and in equity, and 
 they involved his right to a tract of land upon which there 
 was a.lead mine. The first was an action of trespass and the 
 second a bill in chancery to stay waste, on the equity side. 
 The defendant, by his pleas to the common law suit, raised the 
 question of title. The same question was raised in the equity 
 cause. Both cases were carried up on a division of opinion 
 between the judges, to the Supreme Court. Among other 
 questions raised in the equity cause was the right of com- 
 plainant to an injunction; which was granted. 
 
 In Kensler v. Clark, 1 Uich. 617, a bill was filed for an 
 injunction to restrain from waste or cutting timber. The de- 
 fendant insisted in his answer that he had a perfect title to 
 the premises, and set it out. The chancellor, in his decree, 
 discussed tlie question of right, and decided in plaintiff's 
 favor, and ordered an injunction to issue. On an appeal 
 (Chancellors Johnson, Harper and De Saussure, justices) the 
 court declined to decree on the question of title, but sustained 
 that portion of the chancellor's opinion which went to the 
 issue of an injunction. 
 
 " The claim," said Chancellor De Saussure, " of both par- 
 
Unitell States of America v. Pakrott. 359 
 
 ties to the title was set forth in the pleadings; and the chan- 
 cellor on the circuit, to put an end to litigation and the mul- 
 tiplicity of suits, made a decree on the question of right. 
 
 " But, as this court is unwilling to decide on the question 
 of title, which is pending in a suit at law, it will make no de- 
 cree on the appeal on that ground, but will leave the parties 
 to the litigation of the title to the court of law, to which the 
 court remits then^." The court confined itself to the appeal 
 from the decree of the chancellor granting an injunction. 
 The appeal was made on the ground that in a case of trespass 
 no injunction ought to be granted. Neither the chancellor 
 below nor the appellate tribunal considered that the right of 
 complainant to an injunction was defeated by defendant dis- 
 puting the title, and setting up in his answer an adverse one. 
 The Court of Appeals say (De Saussure delivering the opinion) 
 "On a careful examination,! concur entirely with him in 
 directing an injunction to be issued in this case. He has 
 placed the interposition of the court, for the protection of the 
 land in question from irreparable mischief, on the true 
 grounds, and I entirely concur with him. Nor is this doc- 
 trine and practice new in England or in this country." 
 
 The court can not believe, in view Of the foregoing authori- 
 ties, that no injunction can in any case be granted where the 
 title is disputed, in a case of trespass of the character com- 
 plained of in tliis ease. 
 
 Denial of the Equities of the Bill. 
 
 Thus far the attention of the court has been limited to the 
 objections urged by defendant's solicitors to the jurisdiction 
 of the court and the mode of procedure. The remaining 
 question is one raised by one of the grounds of defense taken, 
 viz., that the defendants are protected by the answer. 
 
 This is a substantial defense. It is the ordinary question 
 which arises on a motion for an injunction, or to dissolve an 
 injunction (if previously granted) on bill and answer. A de- 
 cision of it covers the whole merits of this motion. 
 
 When an answer denies directly and positively from per- 
 sonal knowledge the material allegations of the bill, it "denies ' 
 the equity of the bill," and the court is bound to consider it 
 as evidence to which entire credit is to be given, until dis- 
 
360 Injostction. 
 
 proved by two witnesses, or one with stringent corrobora- 
 tive circumstances. Acting upon it as such, the court, in the 
 absence of extraordinary circumstances, will dissolve the in- 
 junction if previously granted. If, on the contrary, snch 
 denials are not or can not be made, they will consider that 
 the allegations of the bill have not been disproved. The rule 
 on this point, with its qualifications, will appear by reference 
 to the authorities. 
 
 The general rule is, that an injunction is to be dissolved 
 when an answer comes in and denies all the equity of the bill. 
 This is the rule in ordinary cases; but, to use the words of Lord 
 Eldon in Olapham v. WhUe, 8 Vesey, 36, there are " excepted 
 cases;" such are, mismanagement of partnership concerns, 
 cases of waste or destructive trespasses, patent cases and cases 
 of irreparable mischief. But even in those cases to which the 
 general rule applies, the answer, to have theefiect of dissolving 
 the injunction or preventing its issue, must be specific and 
 positive. 
 
 In Poor V. Carleton, 3 Sumner, 77, Judge Story says, 
 "But supposing the doctrine [which he by no means admits] 
 were as comprehensive as to the dissolving an injunction on 
 the coming in of the answer as the counsel lias contended for, 
 the question occurs whether it is applicable to all kinds of 
 answers which deny the whole meritg of i\\e bill, or whether it 
 is applicable to such answers only as contain statements and 
 denials by defendants connusant of the facts and denying 
 the allegations upon their own personal knowledge. It seems 
 to me very clear, upon principle, that it applies to the latter 
 only." 
 
 " The ground of the practice of dissolving an injunction 
 upon a full denial, by the answer, of the material facts is, that 
 in such a case the court gives entire credit to the answer, upon 
 the common rule in equity that it is to prevail, if responsive 
 to the bill, until it is overcome by the testimony of two wit- 
 nesses, or of one and otlier stringent corroborative circum- 
 stances. But it would certainly be an evasion of the principle 
 of the rule, if we were to say that a mere naked denial, by a par- 
 ty who had no personal knowledge of any of tlio material 
 facts, were to receive the same credit as if the denial were by 
 a party possessing actual knowledge of them." 
 
United States of America v. Parkott. 361 
 
 "In the latter case the conscience of the defendant is not 
 at all sifted, and his denial mnst be founded upon his ignorance, 
 of the facts and merely to put them in a train for contestation 
 and due proof to be made by the other side." The learned 
 judge proceeds: "What sort of evidence can that be which 
 consists in the mere negation of knowledge by the party ap- 
 pealed to? Such negation affords no presumption against 
 the plaintiff's claims; but merely establishes that the defend- 
 ant has no personal knowledge to aid it, or disprove it. It is 
 upon this ground that it has been held, and in my judgment 
 very properly' held, thatif the answer does not positively deny 
 the material facts or the denial is merely from information 
 and belief, it furnishes no ground for an application to dis- 
 solve a special injunction." 3 Sumner, 78. 
 
 Judge Story has thus compendiously embodied the doctrine 
 and the reason for its existence. His remarks were made on a 
 motion for the dissolution of an injunction afteT answer. They 
 apply to the present motion for an injunction after answer; 
 for surely, if an answer does not so deny the material allega- 
 tions of tlie' bill as will authorize the dissolution of an in- 
 junction, such answer will not prevent the issue of one in a 
 proper case. 
 
 In Clark's Ex. v. Rlemsdyk, 9 Oranch, 160, the court say: 
 "If a defendant asserts a fact (in his answer) which is not and 
 can not be within his own knowledge, the nature of his testi- 
 mony can not be changed by the positiveness of his asser- 
 tion. The strength of his belief may have betrayed him into a 
 mode of expression of which he was not fully apprised. 
 When he intended to utter only a strong conviction of the 
 existence of a particular fact or what he deemed an infallible 
 deduction from the facts which were known to him, he may 
 assert that belief or that deduction in terms which convey the 
 idea of his knowing the fact itself. Thus, when the executors 
 say, that John Innes Clark never gave Benjamin Munro au- 
 thority to take up money or to draw bills; when they assert 
 that Eiemsdyk, who was in Batavia, did not take this"bili on 
 the credit of the owners of the Patterson, but on tlie sole 
 credit of Benjamin Munro, they assert facts which can not 
 be within their own knowledge. In the first instance, they 
 speak from belief; in the last, they swear to a deduction 
 
362 iNJUNCTioiir. 
 
 wliich they make from the admitted fact that Munro could 
 show no written authority. Tliese traits in the character of 
 the testimony must be perceived by the court, and must be 
 allowed their due weight, whether the evidence be given in 
 the form of an answer or deposition. The respondents could 
 found their assertions only on belief; they ought so to have 
 expressed themselves; and their having, perhaps, incautiously 
 used terms indicating knowledge of what, in the nature of 
 things, they could not know, can not give to their answer more 
 effect than it would have been entitled to had they been more 
 circumspect in tiveir language." 
 
 A practical illustration of this doctrine, as applicable to 
 an affidavit on a motion for injunction, is to be found in the 
 case oi Davis v. Leo, 6 Vesey, 785, in which Lord Eldon says: 
 " There is no positive affidavit in this case that the will was 
 made, under whicli the plaintiff is next tenant for life, to the 
 defendant, Leo. This is a mere hypothetical title, upon the 
 plaintiff's information and JeZze/that a settlement was exe- 
 cuted." It is to be borne in mind, that the grounds of de- 
 fendant's information and belief were set forth and his belief 
 sworn to. Hislordship, however, proceeded and said: "There 
 -is no instance of an injunction in such a case. An affidavit to 
 information and ieliefis nothing in this sort of case." 
 
 In Everly v. Eice, 3 Green Ch. R., 553, the chancellor says, 
 referring to the answer in that case: " In common charity 
 it is to be presumed that this general denial relates to a 
 written agreement or deed which is not alleged in the bill, or 
 else that it is predicated of the defendant's information and 
 belief which is not sufficient. The defendant must answer 
 upon his 0W71 knowledge, and not upon information and 
 belief otherwise the injunction must be retained till the final 
 bearing." 
 
 Nor is this well-settled principle affected by the inability 
 of a defendant to make a fuller denial; for the reasons given 
 for the existence of it are unaffected by the inability of a de- 
 fendant to make a fuller denial; and for the simple reason 
 that the existence of the fact alleged by complainant is un- 
 affected by the ignorance of the defendant of its existence or 
 the sincerity of his belief in its non-existence. 
 
 In Roberts v. Anderson, 2 Johns. Ch. 202, the bill prayed 
 
United States of America v. Parrott. 363 
 
 for an injunction staying all proceedings on a judgment in 
 ejectment which had been obtained against the complainant. 
 Chancellor Kent stated, "The only point is, whether the two 
 deeds from Griffith to Sarah Johnson, under whom the defend- 
 ants set up title, were fraudulent and void. The question of 
 fraud was not tried; and from the history of the ejectment suit, 
 as stated in the pleadings, it would seem that it could not be 
 tried, as the recovery was placed entirely on the ground that 
 the defendant at law was tenant to the new defendants, and so 
 concluded from setting up this defense. But the fraud as 
 charged is a proper and familiar head of equity jurisdiction, 
 and unless the answer be full and satisfactory, the injunction, 
 if right in the iirst instance, ought to be retained until the 
 hearing. All the denial contained in the answer is that the 
 defendants were not privy to any fraud, and were ionajlde 
 purchasers under a judgment and execution against Sarah 
 Johnson. If she had no title they had none, and they aver 
 that tliey believe her title was good, because they do not know 
 or ielieve that the conveyances from Griffith to her were fraud- 
 ulent. This is leaving the question of fraud as unsettled as 
 before the answer came in. 
 
 " It is true the defendants may have given all the denial 
 in their power; but the fraud may exist notwithstanding, and 
 consistently with their ignorance of the sincerity of their be- 
 lief. In some particular cases the court will continue an in- 
 junction though the defendant h&e fully answered the equity 
 set up." 
 
 In the case of JSverly v. jRioe, the following is cited from 
 the language of Chancellor Williamson, in the case of Kin- 
 nerman v. Henry. " I do not consider," said he, " the fraud 
 in this case as sufficiently denied to entitle the defendant to a 
 dissolution of the injunction upon the ground of the whole 
 equity of the bill being denied. The defendants are not 
 charged with being parties or privy to the fraud;" nor were 
 they so. In relation to them the chancellor says, " All they 
 could do, or which they have done, is to deny all Jcnowledge 
 or helief oi the alleged fraud. The answer may be perfectly 
 true and yet Johnson, the mortgagor, guilty of the fraud im- 
 puted to him, and the complainant entitled to relief against 
 these defendants. Such an answer is not sufficient denial of 
 
364 Injunction. 
 
 ths complainant'' 8 equity to entitle the defendants to a disso- 
 lution of the injunction." 
 
 "We will now submit to the principles enunciated in the 
 foreo'oino' authorities, the denials of the answer in this case. 
 One allegation in the bill and one of the most material is 
 direct and positive. It enumerates sundry documents consti- 
 tuting a part of the documentary title of defendants and ex- 
 pressly charges that all and singular said documents in rela- 
 ktion to said Castillero's claim to said tract of land and cinna- 
 bar mine axe false, fraudulent, antedated 2jaAfoTged, and they 
 have all and singular been fraudulently contrived and fabri- 
 cated since the right of property and possession to the said land 
 and mine accrued to complainants, with intent to cheat and 
 defraud the United States out of the property and possession 
 of said land and mine. 
 
 The denial of the defendants as to the forgery of the docu- 
 ments is to be found in section fourteenth of the answer. They 
 say that they have no personal knowledge of anything said or 
 done by the said Oastillero in or about his said representa- 
 tions to the Alcalde Pico, as shown in his letters, copies of 
 which are exhibited in exhibits "A" and ". B;" neither have 
 they any personal knowledge of what was said or done by 
 the said Alcalde, when he gave the said Oastillero possession 
 of the mine and lands around it, which was evidenced by the 
 written instrument, a copy of which is exiiibited, marked 
 "Exhibit E;" nor have they any personal knowledge of what 
 was said or done by Oastillero or the Mexican authorities in 
 and about the business which resulted in the proposals, con- 
 tracts, grants and official correspondence and reports which 
 appear and are shown in the exhibits annexed to this answer, 
 being " Exhibits G, H, J, K, L, M, N;" but they . have been 
 informed and ielieve that the said documents are perfectly 
 genuine and fair, and express truly the matters and things to 
 which they relate and were made at the times of their re- 
 spective dates. 
 
 Having stated their want of personal knowledge of the 
 facts covered by said documents, in the fifteenth section of the 
 answer, the defendants aver that to the best of their knowl- 
 edge, information and belief Oastillero did present to said 
 Alcalde Pico the two original letters, copies of which are 
 
United States of Amekica v. Paeeott. 365 
 
 hereto annexed, marked " Exhibit A and B," and that said 
 letters were written on their respective dates; and said Pico 
 did put, the said Castillero in possession of the mine and of 
 three thousand varas of land in all directions measured from 
 the mouth of the said mine, in the month of December, 1845, 
 and that all the matters of fact recited and described in the 
 said instrument signed by Pico, Alcalde, and by Antonio 
 Suftol and Jose Noriega, attesting witnesses, a copy of which 
 is shown in "Exhibit E," are truly recited therein; and in 
 the same section, the defendants Halleck and Barron say, and 
 the defendants, Parrott, Bolton and Yonng believe it to be 
 true, that they (the said Halleck and Barron) have conversed 
 with the said Pico, the Alcalde, with the said Antonio Sunol, 
 and with Jose Fernandez, who, in the month of December, 
 1845, was a clerk in the office of Pico, Alcalde, who was 
 present on the ground at the old mouth of the mine when the 
 said possession was given, and also with other persons who 
 lived in and about the pueblo of San Jose in 1845 and 1846, 
 and who knew of the possession of said mine by Castillero as 
 a matter of general notoriety; and from all the knowledge and 
 information obtained from these and other various and authen- 
 tic sources, which information was positive and precise, the 
 defendants are convinced and believe that the possession of the 
 mine, and of three thousand varas of land measured in all 
 directions from the then month of the mine, was given by the 
 said Alcalde Pico to the said Castillero, in the month of 
 December, A. D. 1845, as set forth in " Exhibit E." And tliis 
 section concludes with the averment that to " the best of their 
 knowledge, information, and belief," all the acts and things 
 which are described and mentioned in the original documents, 
 of which the "Exhibits G, H, I, K, L, M, N," and " O," are 
 copies, did really take place, as they are therein set forth, and 
 at the times therein specified, and that all the said documents 
 are genuine, and were made at the times shown in their re- 
 spective dates. 
 
 In the sixteenth section of the answer, "William E. Barron 
 
 avers, and the defendants, Halleck, Young, Parrott and Bolton 
 
 ■believe it to be true, that in the month of May, in the present 
 
 •year, he (the said William E. Barron) was informed by Segura, 
 
 that he, Segura, was, in 1846, president of the "Junta de 
 
366 Injunction. 
 
 Fomento," tliat Lis signature to the various "Exhibits," when 
 shown to him, were genuine, and also declared that all the 
 titles were signed by the persons who purport to sign them, 
 and received by hhn; and adetailed statement by him is made 
 of the facts connected with the acts of the said Segurain con- 
 nection with the title of Castillero. 
 
 In the seventeenth section of the answer a similar course 
 is pursued, the difference being in the character of the facts 
 communicated to Mr. Barron, and his informant on this 
 occasion, being Manuel Conto, Secretary of "El Fondo de 
 Mineria." 
 
 In the eighteenth section of the answer a similar statement 
 is made; the only difference being in the character of the facts 
 narrated, being detailed by a different person, Jose Maria 
 Duran, who stated he was chief clerk of the ministry of jus- 
 tice, under Becerra. 
 
 In the nineteenth section of the answer, similar statements 
 of facts are made upon the information of Castillo Lanzas, who 
 was a Mexican official in 1846. 
 
 In the twentieth section, the information was received by 
 Mr. Barron from one Bias Balcarcel, who in 1846 was prefect 
 of the National College of Mining in Mexico. 
 
 In the twenty-first section of the answer, it is averred that 
 Barron, while he was in Mexico, inquired in the various offices 
 of the government, and found many persons wlio remembered 
 when Castillero was in Mexico in 1846, and that it was reported 
 and believed that he discovered a quicksilver mine in California, 
 and that he was then engaged in making some contract with 
 government in relation to the same; and from all the said 
 Barron could learn, he is perfectly convinced tha,tall the mat- 
 ters and things spoken of in the documents, copies of which 
 appear in the said Exhibits G, H, I, K, L, M and N, are truly 
 related in said documents, and that all the said documents 
 are genuine, and were made at the time they purport by their 
 dates to have been made. 
 
 In the twentieth section of the answer, all the defendants 
 unite in the averment that they believe in the entire truth of 
 all the information received as aforesaid by the said Barron, 
 and from all said information, and from other sources of in- 
 formation, that all the matters and things spoken of in the 
 
United States op America v. Paerott. 367 
 
 documents, copies of which appear in the said Exhibits G, 
 H, 1, K, L, M and N, are truly related in said documents, 
 and that all the said documents are genuine, and were made 
 as they purport to have been made by their dates. 
 
 The last section which alludes to that part of the bill which 
 charges forgery and antedating, is the twenty-third, which 
 denies generally the charges, and particularly denies that any 
 of the documents, copies of which are shown in the Exhibits 
 A, B, E, G, H, I, K, L, M, N and O, are false, or fraudulent, 
 or antedated, or forged, etc. 
 
 Most of that portion of the answer which responds to the 
 allegations of forgery and antedating of the muniments of 
 defendant's title, is given literally, and all substantially set 
 out. It is matter elaborate and argumentative, but does not 
 constitute positive and distinct denials, which the law re- 
 quires in an answer in response to the material allegations in 
 a bill, in order to influence the Action of the court on a mo- 
 tion for an injunction in a case of irreparable mischief, or 
 destructive trespass. The insertion in an answer of such 
 denials merely, in the language of Judge Story, puts them 
 in a train for contestation and proof by the other side: 3 
 Sumner, 77. 
 
 The averment of the genuineness of the documeilts alleged 
 by the bill to be forged and antedated, is founded entirely 
 on '^ information and belief ," and on deductions from facts 
 of which defendants were informed. In the fourteenth sec- 
 tion of the answer they say they have no personal knowledge 
 of anything said or done by Gastillero in his representations 
 to the Alcalde Pico, as shown in his letters; that they have 
 no personal knowledge of what was said or done by the Al- 
 caide when he ga^e the possession of said mine to Gastillero, 
 evidenced by "Exhibit E;" nor any personal knowledge of 
 what was said or done by Gastillero or the Mexican author- 
 ities about the business which resulted in the documents, 
 grants, etc., which are shown in the " Exhibits G, H, I, K, 
 L, M, Ef but they say they have been informed and believa 
 that said documents are perfectly genuine and express truly 
 the matters and things to which they relate. The allegation 
 in the bill is positive, and charges that these very documents, 
 or rather their supposed originals, were fraudulent, forged, 
 and antedated. 
 
368 Injunction. 
 
 The denial is that the defendants have no personal knowl- 
 edge of the facts exhibited in the documents, but they have 
 been informed and they Relieve the documents to be perfectly 
 genuine, express truly the matters and things which they 
 relate, and that they were made at the times of their respective 
 dates. Can such denial be deemed clear, direct and positive? 
 They do not pretend to have seen the originals; they disavow 
 all personal knowledge of tlie facts to which they relate. 
 Their belief as to the genuineness of the documents is founded 
 on the information they received that they were genuine; and 
 upon the authenticity of that information they found their 
 belief of the genuineness of the facts of which they relate, of 
 which themselves are in no other way connusant. 
 
 Every word they have uttered may be strictly true. Tlieir 
 belief may be sincere, they undoubtedly may have received 
 sucli information, and yet the documents may have been fab- 
 ricated as alleged, without imputation of false swearing. 
 Hence the well settled rule that the denial in an answer must 
 be direct and founded on personal knowledge before the court 
 can act upon them in a case of irreparable mischief, and the 
 is.=ue of an injunction to enjoin the same. 
 
 It is due to the defendants in this case to say, they have 
 frankly disclosed the sources of their belief and sworn only to 
 it. They have not placed themselves in the position of parties 
 described by C. J. Marshall in ClarJc's Ex. v. Riemsdyh, 9 
 Cranch, 160. The strength of their belief has not betrayed 
 them into a mode of expression of which tliey were not ap- 
 prised. That when they intended to utter only a strong con- 
 viction of the existence of a particular fact, or what they 
 deemed an infallible deduction from the facts known to them, 
 they may assert that fact or that deduction in terms which 
 convey the idea of their knowing the fact itself. In this case, 
 the defendants tell us, they have no personal knowledge of the 
 transactions; that they were informed the documents were 
 genuine, and acting on that information, they swear to their 
 belief of the existence of the facts to which they relate. 
 
 It may be urged, they could not truly make a fuller answer 
 in the nature of things. This is trne; and if the question was, 
 whether such denials be sufficient to raise the issues for trial 
 on the final hearing, and impose upon the complainants the 
 
United States of Ameeica v. Pareott. 369 
 
 duty of meeting tliem by proof, there could be no doubt that 
 the pleading would be sufficient for that purpose. That de- 
 fendants are unable to answer more fully, is not their fault; 
 but the rights of complainants can not be prejudiced, for it 
 certainly is not their fault. The defendants are in the precise 
 position of all other parties who are called on in a case like 
 the present, to answer an alleged simulation of the title by 
 those under whom they claim. Chancellor Kent only affirms 
 the well settled doctrine, when he says, " It is true, the de- 
 fendants may have given all the denial in their power; but 
 the fraud may exist notwithstanding, and consistently with their 
 
 ■ ignorance, or the sincerity of their belief." Roberts v. Ander- 
 son, 2 Johns. Ch. 202. 
 
 In ascertaining the sufficiency of the denials in. the an- 
 swer, it is necessary to refer to some other allegations in the 
 bill. The twenty-eighth article of the bill charges that all the 
 pretended proceedings before the said Alcalde Pico, in respect 
 to the judicial possession of the mine, and all the pretended 
 proceedings of the government of Mexico, were falsely and 
 fraudulently made, contrived, procured, antedated and forged, 
 
 ' in pursuance of the aforesaid fraudulent conspiracy against the 
 United States, and with intent to defraud the United States 
 out of said mine and minerals, or some part thereof, under false, 
 forged, and antedated Mexican titles. The bill further charges 
 that in pursuance of said conspiracy letters were written and 
 communications and memorandums made between the said 
 Alexander Forbes and his confederates, and the said J. Alex- 
 ander Forbes, as their agent (copies of wiiicli are herewith 
 filed as exhibits, marked " B, C. D" and " E," and made part of 
 the bill), in and about the fabrication and procuring the afore- 
 said false, antedated and forged Mexican titles, etc. To these 
 charges they reply in the thirty-second section of the answer, 
 and the defendants admit the correspondence embraced in 
 said exhibits to have been written by the parties to them, at 
 the times they bear dates respectively and at the places from 
 which they purport to be written, except the letter dated 25th 
 March, 1848, which they aver to have been forged. They do 
 not deny that J. Alexander Forbes was acting in behalf ot^ or 
 as agent of the parties, but they deny " that said letters and 
 communications were written by the said parties with an intent 
 VOL. VII.— 24 
 
370 Injunction". 
 
 to commit a fraiid in furtherance of a conspiracy to fabricate 
 a title, as cliarged in said bill, except so far as appears from 
 said letter's on tlie part of the said James Alexander Forbes." 
 
 They neither deny nor admit such intention on his part; 
 but refer to the correspondence for the ascertainment of the 
 fact whether or not a person under whom some of the defend- 
 ants claim title, w^as guilty of the charges of conspiracy and 
 intention to cheat, as alleged in the bill. 
 
 Such denials of material allegations of the bill in the answer, 
 though sufficient, for the purpose of pleading, to place the 
 issues raised in a train for contestation, are not sufficient to 
 enable the court to act upon the documents as proved and to 
 refuse the injunction on that ground. 
 
 WeTiave discussed this motion on the allegations of the bill 
 and the denials of the answer, as all affidavits as to title have, 
 in my opinion, been excluded by the well-settled rules of courts 
 of eqiiity, a rule affirmed by this court in the case of Tdbm v. 
 Walkinshaw, McAll. 186. Judge Story has, as we have seen, 
 expressed strong doubts of the propriety of the rule, and as an 
 extended discussion has been made by the respective counsel in 
 re'ation to title, it is deemed proper to look to the facts elicited 
 by the affidavits, and to inquire into the allegations of forgery 
 and antedating made against the documentary title set up by 
 defendants, with a view not to decide upon or establish title, a 
 matter within the exclusive jurisdiction of another tribunal, 
 but to ascertain whether the facts and the testimony bearing 
 upon the allegations of fraud forgery, and antedating, be 
 such as to satisfy the court that there is reasonable foundation 
 for the plaintiff's title, which would entitle them to protection 
 from irreparable mischief in the event that such title should 
 turn out to be well founded. My associate will give his views 
 tipon that point. 
 
 Mining as an Irreparahle Injury. 
 
 The remaining inquiry is, does the present case come within 
 the range of cases in which courts of equity have exercised the 
 powers now invoked? A response to this question will be 
 found by reference to a few decided cases, in addition to 
 authorities incidentally alluded to while commenting upon the 
 objections urged by the solicitors for defendants. 
 
United States op America v. Parrott. 371 
 
 It 18 proper to observe that the court on this motion is not 
 to try title. The determination of that question belongs ex- 
 clusively to another tribunal. All that we have to do in 
 relation to title is, to look to the allegations of the bill and the 
 denials in the answer, and ascertain from them whether the 
 plaintiff's title, in the language of Mr. Justice Story, " has 
 such a probable foundation, in the present stage of the cause 
 as to entitle the plaintiff to be protected against irreparable 
 mischief, if upon the hearing it should turn out to be well 
 founded." 3 Sumner, 77. To this, the court will limit its 
 remarks. 
 
 In Lloyd v. Passingham, 16 Vesey, 69, a receiver and in- 
 junction were refused where defendant was in possession, but 
 where the legal estate was cliarged to have been obtained 
 through forged documents. The action of the court did not 
 turn upon a want of power in the court, but upon the special 
 circumstances of the case. The grounds on which the court 
 decided will instruct us as to the principles on which a court 
 of equity acts in cases analogous to the present. In that case, 
 the defendants had recovered, by ejectment, certain estates. 
 This occurred some fourteen years prior to the suit in equity. 
 The latter was a bill filed to impeach the verdict in eject- 
 ment, principally as obtained upon forged entries of burial 
 and death, contrived by Robert Passingham. The bill prayed 
 for an injunction to enjoin the cutting of timber and other 
 waste, and for a receiver. Tlie case was argued on affidavitsj 
 Lord Eldon refused the application on three grounds: 
 1. Because the trial in ejectment had been had upon other 
 testimony than the entries which were alleged to have been 
 iorged. 2. Because doubts were thrown upon the aflBdavits 
 cliarging the forgery, on account of contradictions as to time 
 and circumstances, which made the act of forgery, if done, a 
 remarkable one; and 3. Because no danger as to the rents 
 was suggested. His lordship looked to the additional cir- 
 cumstance, that the defendants would be made illegitimate, 
 provided the testimony should. bear out the affidavits. 
 
 It was under foregoing circumstances, where the defendants 
 held the legal title and a judgment in ejectment obtained by 
 them fourteen years previously, when the judgment had been 
 obtained on other testimony besides the alleged forged docu- 
 
372 Injunction, 
 
 ments, where the evidence as to tlie forgery was contradicted 
 and where there was no irreparable mischief, for none such was 
 suggested, that Lord Eldon refused the motion and concluded 
 with these words, " "Whatever may be the ultimate event of 
 this suit, to which my act this day, refusing this application, 
 will be no prejudice, I do not consider that these circum- 
 stances form that .extreme case in which the possession is to 
 be taken from those who have the legal title." 16 Vesey, 
 72. Nothing is said of want of power in the court; a perfect 
 legal title was in defendants, held under a judgment for four- 
 teen years, accompanied by possession. The judgment was 
 obtained on other testimony besides the documents alleged to 
 be forged, the testimony as to forgery contradictory; and, above 
 a'.l, ir"eparab}e injury not even suggested ; and yet his lordship 
 in deciding against the motion bases his decision to a consid- 
 erable extent on the last ground — that refusing the applica- 
 tion will he of no prejudice." 
 
 In his opinion the chancellor expressly says, " I give no 
 opinion upon the application for an injunction against com- 
 mitting waste." This language was 4ised by him in view of 
 the fact, that he did not view the case as one of irreparable 
 mischief. 
 
 This case not only establishes the power of the court, but 
 no notice was taken of the fact that there was no suit at law 
 pending at the time. 
 
 In the case of Guerard v. Oeddes, 1 McCord Ch. 304, no 
 suit at law was pending, and the court in its opinion was dis- 
 cussing the power of a court of equity to interfere by injunc- 
 tion in a case of trespass. 
 
 They overruled the decision of the court below ordering an 
 injunction to issue to restrain the defendant from obstructing 
 a right of private way; and they, at the same time, place the 
 doctrine on its true ground, that of irreparable injury. They 
 consider a temporary obstruction of a private road, and similar 
 trespasses, as not cognizable in equity. 
 
 The decision in this case enunciates the true rule. It is the 
 irreparable mischief •v!\\\ch is to govern. A party may com- 
 plain of what may be deemed technically a nuisance or waste; 
 but the true question remains, is the act complained of one of 
 irreparable mischief. The court in tlie above case say, that 
 the nuisance complained of must be productive of irreparable 
 
United States of America v. Paeeott. 373 
 
 injury: 1 McCord Ch. 309. In reference to trespasses which are 
 not attended by such mischief and an adequate remedy can be 
 obtained at law, they say, such cases do not require the aid of 
 a court of equity, and certainly not until the right has been 
 determined at law: Hid. 
 
 Upon the nature a,nd character of the injury complained of, 
 depends to a considerable extent the jurisdiction of this court. 
 Is it irreparable? 
 
 Irreparable injury is such as can not be estimated with 
 accuracy in money, or where it is so great tliat the party com- 
 mitting it can not make a compensation, or where from its 
 nature the injured party can not be made whole. Such for 
 instance, as the destruction of the substance of the thing. 
 
 The property sought to be protected is mineral land, and a 
 mine of great value. The acts which defendants are commit- 
 ting and intend to commit, are such as the law adjudges to be 
 waste. This point is settled by the case of the United States 
 Y. Oear, 3 Howard, 120; and also by the Supreme Court of 
 this State. 
 
 In the case of the Merced Mining Company v. Fremont, 7 
 Cal. 321, it is said, " Tlie ground upon which the injunction 
 was granted in these cases of timber, coals, ores and quarries 
 was, that the trespasser, in the language of Lord Eldon, was 
 ' taking away the very substance of the estate.' " 
 
 " It must be conceded that the principles of these cases ap- 
 ply to gold mines as well as to others. In fact, there are cir- 
 cumstances connected with gold mines (and the remarks apply 
 equally to quicksilver mines) that render the remedy by in- 
 junction more appropriate than to other mines. The only 
 value of a gold-mining claim, in most cases, consists in the 
 mineral. If a party removes the gold, he removes all that is 
 of any value in the estate itself. It is emphatically taking 
 away the entire substance of the estate." 
 
 After affirming the rule, that facts to show that the injury 
 is irreparable must be stated in the complaint, the court pro- 
 ceeds, "But in the cases of mines, timber and quarries, the 
 statement of the injury is sufficient. In the nature of the case 
 all the party could well state as matter of fact, is the de- 
 struction of the timber in the one case, and the taking away 
 the minerals in the other. Taking away the minerals is itself 
 
374 Injunction. 
 
 the injury that is irreparable; because, it is the taking away 
 the substance of the estate. 
 
 Insolvency. 
 
 The allegation of insolvency is not necessary to procure the 
 injunction in these cases. The right to the remedy is based 
 upon the nature of the injury, and not upon the incapacity of 
 the party to respond in damages." 
 
 In the opinion of this court, naere insolrency, if the amount 
 is inconsiderable, would not give jurisdiction to a court; but 
 where the amount is great, and the inability to respond is 
 greaf^y disproportioned to that amount, such insolvency would 
 be an element which would certainly influence the action of 
 a court; and where it exists is a proper subject for an alle- 
 gation in the bill. 
 
 U. 8. Title under Guadalupe Hidalgo. 
 
 Having disposed of the question relative to the power of 
 the court, and the irreparable character of the injury com- 
 plained of, we come to the consideration of another point: 
 
 Have the complainants such a right in the premises as en- 
 titles'them to an injunction to protect them until the litigation 
 pending as to their title shall be determined? 
 
 That the United States, by the Treaty of Guadalupe Hidal-, 
 go, acquired tlie legal and paramount title, seems not to.be 
 denied. That no legal title can vest in defendants until the 
 confirmation of their claim, under the act of the 3d March, 
 1851, is clear: 2 Howard, 316. But it is contended that tiie 
 Congress of the United States have dedicated the minerals in 
 the lands of Califor'jia to the public. 
 
 The grounds on which this proposition is placed by defend- 
 ants' solicitors are: 
 
 1st. The United States by their general policy, and the 
 direct concurrence of the executive branch of the government, 
 have encouraged the working of mines and the employment 
 of mining capital in California. 
 
 2d. The State has done the same by express legislation; 
 and all the departments of the State government have con- 
 curred in establishing mining operations in the State on pub- 
 lic land as the paramount interest of the State, to which all 
 other industrial branches are subservient. 
 
UiiriTED States of America v. Paeeott. 375 
 
 "We shall not pause to inquire into the legislation of this 
 State in relation to minerals on the publiclandsof the United 
 S^tates. Oae thing is certain, that neither her policy nor 
 legislation, however much they may influence the action of 
 the legislature of the Union, can deprive the United States of 
 any legal right, or influence the action 'of tliis court in this 
 case. That has been guarded against in the act of Congress 
 passed 9th September, 1850 (9 U. S. Statutes, 452), entitled 
 "An act for the admission of the State of Californik, into 
 the Union." In that act it is expressly provided, " that the 
 people of said State, through their legislature or otherwise, 
 shall never interfere with the primary disposal of the public 
 lands within its limits; and shall pass no law, and do no act, 
 whereby the title of the United States to and right to dispose 
 of the same, shall be impaired or questioned." 
 
 As to the ground that the Congi;ess of the United States 
 have dedicated the minerals to the public, and hence there is 
 no equity in this bill, it is difficult to perceive, if such dedica- 
 tion had been made, how it could affect in anyway the equity 
 of the present claim. Suppose it to be the fact, how can it 
 affect the rights of defendants' private claim? If such dedica- 
 tion does authoriae the occupancy of the public lands, and 
 permit persons who occupy them to dig the minerals in con- 
 formity with State laws, can the acquiescence of tlie general 
 government in their so doing, aid legally or equitably the title 
 of defendants, who do not claim under that permission, but 
 claim to have an adverse and exclusive right to the property 
 as against the United States and all the world? 
 
 The claim of these defendants of the exclusive ownership of 
 the mine, is inconsistent with tlie title they attempt to set up, 
 under the dedication by Congress of the minerals to the public. 
 They can not in the same breath set up a superior adverse 
 title, and also a right to work the mine by reason of a dedica- 
 tion of the minerals to the public. 
 
 Congress has never parted with the right (reserved as we 
 have seen by the act admitting this State into the Union) of 
 disposing of the public mineral lands. They have merely ex- 
 empted them from the general land laws, and have omitted to 
 legislate in regard to. them except to exempt them from pre- 
 emption I'ights, by the act of 3d March, 1853. 
 
376 Injunction. 
 
 They can at any moment dispose of them. The defencljuits 
 did not enter upon the premises by virtue of any tacit or im- 
 plied permission and license, but adversely as owners, and 
 claim the lands as theirs, whatever disposition the United 
 States may make with regard to the public minerallands. If 
 relying upon such permission to all persons to enter upon, 
 and work mineral lands, defendants had entered, it might be 
 a sufficient answer to a bill for an account of profits during 
 the time such permission continued. Bat defendants did not 
 enter, nor do they claim under such license, but adversely as 
 owners. 
 
 The United States having the title to the mine, the court 
 can not say that they have lost their rights, because, with 
 regard to other minerals, they have not asserted them. 
 
 Congress, to whom alone, under the constitution of the 
 United States, regnlations for the disposal of public property 
 is confided, have, so far as their action goes, manifested their 
 determination to relinquish no right to any public land in Cali- 
 fornia. Having protected, in the act admitting the State into 
 the Union, their title to the public lands, so far as the State 
 was concerned, they proceeded to guard that title from individ- 
 ual claimants. 
 
 The treaty of Guadalupe liidalgo addressed itself to tlie 
 political department; and up to the passing of the act of 3d 
 March, 1851, that department alone had power to perfect 
 titles and administer equities to claimants: 13 Howard, 260. 
 Congress, in the fulfillment of its treaty obligations, passed 
 that act entitled "An act to ascertain and settle the private 
 land claims in the State of California." 
 
 It is an established principle of jurisprudence in all civilized 
 nations, that the sovereign can not be sued in its own courts, 
 or in any other without its consent and permission ; but it may, 
 if it thinks proper, waive this privilege, and permit itself to 
 be made a defendant in a suit by individuals, or by another 
 State. And as this permission is altogether voluntary, it fol- 
 lows that it may prescribe the terms and conditions on which 
 it consents to be sued, and the manner in which the suit shall 
 be conducted, and may withdraw its consent whenever it may 
 suppose that justice to the public requires it: Beers v. State 
 of Arkansas, 20 Howard, 527. 
 
United States of AnEiiicA v. Pareott. 377 
 
 Under tliis power, the political department transferred, by 
 the act of 3d March, 1851, the power of perfecting titles and 
 administering equities to individual claimants. 
 
 Aware that many claims would be made under Mexican 
 titles, some legal, others equitable and inchoate, and others 
 fraudulent, and with a view to segregate all lands of individual 
 ^claimants from the public domain, Cqngress passed the act in 
 question. Desirous to fulfill in a liberal spirit tiie treaty obli- 
 gations of the government, they imparted to the tribunals to 
 which the jurisdiction was committed, rules of decision differ- 
 ent from those which obtained in the ordinary judicial tribu- 
 nals of the country. This extended range of principles was 
 made their rule of action, to effect what Congress purposed 
 they should; that is, to enable them to confirm a large number 
 of claims which were inchoate, and being no evidence of legal 
 title, presented inchoate and equitable rights, commending 
 themselves to courts regulated as those tribunals were by the 
 "principles of equity which could not be enforced by the ordi- 
 nary judicial tribunals." 
 
 We consider it evident that the United States have a title 
 and interest in the premises in dispute, and have a clear right 
 in a proper case to invoke the interposition of a court of equity 
 to protect the property until 'the title to it is ascertained in 
 the manner prescribed by law — whether it be public land or 
 not. One of the terms on which the United States consented 
 to be sued is prescribed in the 13th section of the act; which 
 enacts that all lands the claims to which have been finally 
 rejected by the commissioners, or which shall be decided to 
 be invalid by the District or Supreme Court, shall be deemed, 
 held, and considered as part of the public domain of the 
 United States: Danlop's U. S. Laws, 1296. 
 
 Action at Law Pending. 
 
 The fact is admitted by the pleadings in this case that a 
 petition is pending in behalf of defendants, in the name of one 
 Andres Castiilero, in the district court, on appeal from the 
 commissioners, having for its object aconfirmation of the title 
 to these premises. The result of a decision in one way will bes 
 to segregate the premises from the public domain; and they 
 will not be segregated until such decision is made. A contrary 
 
378 Injunction. 
 
 decision will leave the property in the hands of complainajits. 
 Can it be successfully asserted that the United States have no 
 such interest in the mine as will authorize a court of equity 
 to protect the property while that issue is pending? 
 
 W"e consider tlie legal title to this property to be in the 
 United States, until it is decided to be private property. But 
 suppose it be assumed that the interest held by the United 
 States is to b.e confined to what they hold under the act of 3d 
 March, 1851. If such assumption be made, it may be con- 
 tended that, so limited, it is a mere contingent interest, and 
 not to be protected by the court, — that it is not a vested inter- 
 est. The answer to such suggestion is, that the right or 
 interest of defendants is equally contingent; and again, that 
 the right of complainants, if it be admitted to be contingent, 
 will not deprive it of protection from a court of equity in a 
 proper case. 
 
 The court will grant an injunction when the aggrieved 
 party has only equitable rights. Thus in cases of mortgages, 
 if the mortgagee or mortgagor in possession commits waste, 
 or threatens to commit it, an injunction will be granted. So 
 where there is a contingent estate- on an executory devise 
 dependent over upon a legal estaiie, courts of equity w ill not 
 permit waste to be done to the injury of the estate. In case of 
 a mortgagee filing a bill to stay waste by the mortgagor in 
 possession, the court will interpose, although the right of the 
 mortgagee in the land or its proceeds is contingent upon his 
 recovery of the debt, to secure payment of which the mortgage 
 was given. In Camp v. Bates, 11 Conn. 51, a bill was filed 
 to enjoin waste upon property on which complainant held 
 a lien' as an attaching creditor, under a law of the State. It was 
 admitted that by th6 attachment the party acquired no legal 
 title to the property, and that he inight never obtain one. The 
 court say, it has been urged that the " plaintiff had neither an 
 equitable nor a legal title. That he had no interest in the estate, 
 none which a court of equity would consider a vested interest;" 
 and the court proceeds to inquire into the right of the party, 
 and coming to the conclusion that the attachment, when com- 
 pleted, would bind the estate under the provisions of the law, 
 say, "We are not, then, to speculate as to the result whether the 
 creditor will recover at all, or recover the full sum he demands. 
 
United States of America v. Paeeott. 379 
 
 The estate attached ia to be held snbjeut to meet tliat recovery, 
 be it more or less. The question then arises, does the law give 
 this privilege and then leave the debtor to take it away or 
 destroy it? Does the law give a privilege and allow the party 
 against whom it is given to render it useless? Is a court so 
 utterly impotent, or is it so fettered by its own rules, that this 
 may be done and the court have no power to prevent it? 
 Did not the plaintiff, by his levy, acquire this sanction of 
 the law that the property should stand pledged to await his 
 judgment? Had he not,then, a right acquired by this lien, a 
 right which a court of justice is bound to respect and defend? 
 It is not indeed a legal interest, which would pass by a release 
 deed; but it is a right not less sacred, and no less regarded by 
 a court of law." 
 
 The fkct, then, that the interest of the complainants under 
 the act of Congress of 3d March, 1851, is made contingent, does 
 not defeat their right to the protection of the court. AVe have 
 referred to this last case, to show that the submission by the 
 United States of their title to a contingency, does not affect 
 injuriously the present application. 
 
 Ore Already Severed. 
 
 The bill in this case prays for an injunction to stay future 
 waste, and also that the action of the court may extend to the 
 preservation of the ore and materials now upon said mine and 
 land, and all the quicksilver extracted from the ore of said 
 mine in the possession of said defendants. It is urged that 
 iiijanction is not granted in restraint of the removal of that 
 which has been disconnected with the realty and assumed the 
 shape of chattels. 
 
 In the case of Watson, v. Hunter, 5 Johns. Oh. 169, the 
 principle affirmed is that in ordinary cases, where no special 
 circumstances intervene, injunction will not be issued to pre- 
 vent the removal of timber already cut. Chancellor Kent 
 concludes his opinion by saying, "1 do not mean to be under- 
 stood to- say that the court will never interfere, but that it 
 dugh't riot to be done in ordinary cases like the present." 
 
 in Winshipv. Pitts, 3 Paige, 259, 261, it is said: In ordi- 
 nary cases, the account for waste already committed is merely, 
 incidental to the relief by injunction against future waste, 
 
380 Injunction. 
 
 and is directed to prevent a multiplicity of snits. The rnle, 
 however, is general, that although the recovery of damages 
 for waste is not a substantial ground for a bill in equity, yet 
 if the court has jurisdiction of the subject upon any other 
 ground, it will decree an account of the waste committed: 1 
 Lead. Cases in Equity, 554. 
 
 In Baehler v. Farivw. 2 Hill (So. Car.) Ill, the court asserts 
 the general rule to be, that damages for waste can not be re- 
 covered, the remedy being at law; but they say: "But, hav- 
 ing proper jurisdiction of tlie case, there is hardly any question 
 in relation to property which this court may not determine 
 incidentally, for the purpose of doing complete justice and 
 preventing multiplicity of litigation." The rule as laid down 
 in the case of Jesus College v. Bloom; 3 Atk. 262, Ambler, 
 54, is that a bill will not lie for waste merely, but if the party 
 be properly in court for another purpose, as to obtain an injunc- 
 tion, then an account of past waste will be granted. '• There 
 are many cases where this court have made decrees in the 
 cases of mines which they could not have done in the cases 
 of timber. There is no question that the court \ya8 in posses- 
 sion of this case, and incident to it was the accounts for rents 
 and profits and the account for waste." 
 
 Where an injunction against waste is granted, if the com- 
 plainant has a claim in law to satisfy for the value of the tim- 
 ber or other matters, the removal of which constitutes the 
 waste, he is entitled to an account as of course, as incident to 
 the injunction and to prevent multiplicity of suits: 1 Lead, 
 Cases in Equity, 554. Now, the removal of large amounts 
 of minerals constitutes waste. The result of the doctrine fur- 
 nished by the authorities is, that in an ordinary case an injunc- 
 tion will not be issued to operate upon past waste; but that 
 in cases where the court has original jurisdiction of the case, 
 and the party is properly in court for some other purpose — 
 for instance, to obtain an injunction, or where there is the 
 allegation of fraud, or where the removal constitutes a part 
 of the waste, the court may extend its protection to past waste. 
 That the cases which constitute exceptions to the rule which 
 applies to ordinary cases are those where the proiits of mines 
 and the opening of mines is the waste complained of. 
 
 To this point is the case oi Jesus College v. Bloom, Amb. 
 
United States op America v. Paeeott. 381 
 
 56, where the court, referring to an antliority cited, say: " The 
 more probable reason for decreeing an acconnt in that case 
 seems to be because it was the case of mines; and the court 
 always distinguishes between digging of mines an'd cutting 
 of timber, because the digging of mines is a sort of trade; 
 and there are many cases where this court will relieve and 
 decree an account of ore taken when in any other tort or 
 wrong done it has refused relief" 
 
 We consider this case not to be the ordinary one of cutting 
 timber, but the working of a valuable mine, and that the 
 injunction in this case should extend to ore extracted, and 
 remaining on the premises, as well as to future waste. 
 
 Conclusions. 
 
 A careful examination of this case has brought the court to 
 the following conclusions: That the complainants have exhib- 
 ited a title to the premises in dispute, which entitles them to 
 an injunction to stay waste upon it; that the character of the 
 waste complained of is what the law deems irreparable mis- 
 chief; that the allegations of the bill charging forgery, fraud, 
 and antedating upon the documentai-y title under which de- 
 fendants claim, have only been denied " on information and 
 belief," which will not authorize the court to consider the al- 
 legations in the bill on this motion as disproved; and lastly, 
 that the facts as shown by the exhibits annexed to the plead- 
 ings, and the affidavits filed, if tliey are to be considered, do 
 not set forth circumstances showing good faith, which, accord- 
 ing to Mr. Justice Woodbury, in Parlcerw Wood, 1 Wood. 
 & Miiiot, 281, must accompany "a general denial" of plaint- 
 iflf's title in order to make it sufl[icient. 
 
 The court, therefore, are constrained by a "judicial neces- 
 sity," to grant the injunction prayed for. 
 
 The injunction will be temporary, subject to the further 
 order of the court. It is not to be anticipated that either 
 party will interpose any obstacle to the prompt determination 
 of the issue as to the title to the premises now pending. But 
 it is deemed proper to keep this injunction under the control 
 of the court, so that it may be able to do what subsequent 
 events may require. 
 
 The bill prays that a proper person or persons may be ap- 
 
382 iNJUNCTioiir. 
 
 pointed receivers of. the said tract of land, mine, and minerals, 
 take posseBsion of the same, with the appurtenances, re- 
 ceive the profits of same, and all the ore of said mine, and the 
 quicksilver extracted therefrom, and to lease, work and man- 
 age the said mine, and receive the rents, issues and profits 
 thereof, and the ore and quicksilver to said mine or elsewhere 
 in the defendant's possession, that has been extracted from 
 said ore; to make sale and disposition thereof, to be accounted 
 for under the order of this court. The court do not consider 
 that the appointment of receivers with such extreme powers 
 is, at this time, necessary. 
 
 The ground on which the court has felt it to be its duty to 
 interpose by injunction in tliis case, is to preserve the premises 
 from waste and destruction, while the title to it is undecided. 
 It has also considered it its duty to enjoin against the removal 
 of the ores which have been already extracted, and remain on 
 the premises. Every object contemplated by the bill, and 
 which the court desires to effect, would seem to be attained by 
 enjoining the further working of the mine, and tbe reduction 
 and carrying ofi" the ores now on the premises. Unless those 
 ores are liable to deterioration, from natural causes or by being 
 plundered, there is no necessity to appoint a receiver. If, how- 
 ever, it be made to appear that the condition of those ores is 
 from any cause insecure, or other circumstance which may 
 call for further interposition, the court will take into consid- 
 eration an application for the appointment of a receiver. 
 
 An injunction, in accordance witii the prayer of the bill, 
 and in conformity with the views herein expressed, will be 
 submitted by the solicitors for complainants to the court, 
 
 Concwrring Opimon stating the Facta of the Contention. 
 Hoffman, Dist. J. 
 
 In the opinion just read, this case has been considered on 
 the allegations of the bill and answer plone, exclnding all af- 
 fidavits on either side relating to title. 
 
 It has been seen, however, that in the opinion of Judge 
 Story, the court, to prevent irreparable mischief, may look to 
 " affidavits in affirmance of the plaintiflT's title, not so much 
 
UmTED States of Ameeica v. Pareott. 383 
 
 with a view to establish that title, but to see whether it has. 
 such a probable foundation in the present stage as to entitle 
 the plaintiff to be protected against irreparable mischief, if 
 upon the hearing of the cause it should turn out to be well 
 founded." Poor v. Carleton^ 3 Sumner, 81. 
 
 Had no answer been filed, it is clear that the court, as in 
 the case of Lloyd v. Fassingham, 16 Yesey, 59, and in that 
 of Perry v. Parker, 1 Wood. & Minot, 281, relied on by 
 the defendants, might, have heard the motion on affidavits 
 filed on both sides. 
 
 Unwilling to rest the decision of the motion upon what 
 may seem a technical and rigorous rule, and on allegations in 
 tlie bill which are assumed to be true merely becanse hot met 
 by a positive denial in the answer, we have looked into the 
 affidavits on either side with a view of ascertaining whether 
 the complainants, assuming such an inquiry to be admissible, 
 have made out such a prima, facie or probable case as will 
 warrant the interference of the court in this preliminary stage 
 of the cause. 
 
 That the court will interfere to prevent the destruction of 
 the estate or fund, even though the title is disputed, has 
 already been abundantly shown. That it will so interfere 
 against a party in possession, and even against such a party 
 having the legal estate, is also clear. The inquiry arises, what 
 must be the nature or force of the evidence which the court 
 will exact before it exercises tliis authority? 
 
 It is admitted in the case of Perry v. Parher that a mere 
 denial of plaintiff's title, without any evidence to show the 
 denial to be made probably in good faith and to be sustained 
 by something of fact_and law, is not sufficient. 
 
 In Daniell's Ch. Pr., p. 2027, it is said, " The court will 
 appoint a receiver against a party having possession under a 
 legal title, if it can be satisfied that such party is wrongfully 
 entitled to such legal estate." 
 
 "Where the right to the possession is in dispute, the court 
 will, if it sees clearly that the plaintiff has the right, and tliat 
 the ultimate decree will be in his favor, appoint a receiver 
 pending tlie suit. . Id., p. 2026. 
 
 It miffht be inferred from these authorities that the court 
 will in no case interfere against a party in possession, unless 
 on evidence sufficient to satisfy it that he has no title. 
 
384 Injunction'. 
 
 Such, however, we do not conceive to be law. The extracts 
 from Daniell's Practice, above cited, refer to canes where the 
 property is in possession of a party having the legal estate. 
 In saoh cases ranch reluctance is undoubtedly felt by courts 
 of equity to interfere by injunction. 
 
 But even in such cases, the case of Lloyd v. Paasingham 
 impliedly sanctions the doctrine tliat where there is danger to 
 the substance of the inheritance, and the damage apprehended 
 is great and irreparable, the court will not confine its interpo- 
 sition to those cases alone where it can declare itself satisfied 
 that the defendant has no title. 
 
 In the case of Perry v. Pa/rk&r it does not appear tliat any 
 irreparable injury was apprehended; and even in that case the 
 court enters into an elaborate examination of the titles of 
 plaintiff and defendant witli an evident inclination to the 
 opinion that the former is more than doubtful. 
 
 Daniel!, on the page succeeding that on which the last cita- 
 tion is found, states that though the court will not interfere on 
 the mere ground of title, it will appoint a receiver at the in- 
 stance of parties beneficially interested, even where there is 
 no fraud or spoliation, provided it can be satisfactorily estab- 
 lished that there is danger to the estate or fund, unless such a 
 step is taken. 
 
 In the case of Poor v. Carleton, Judge Story says, " The 
 true rule seems to me to be, that the question of dissolution of 
 a special injunction is one which, after the answer (denying the 
 whole merits of the bill) comes in, is addressed to the sound dis- 
 cretion of the court. In ordinary cases the dissolution ought 
 to be ordered because the plaintiff has ^mayacie repelled the 
 whole merits of the claim asserted in tl^e bill. But extraordi- 
 nary circumstances may exist, which will not only justify but 
 demand the continuation of the special injunction. This, upon 
 the principles of a court of equity, which will always act to pre- 
 vent irreparable mischiefs and general inconvenience in the ad- 
 ministration of justice, ought to be the practical doctrine; 
 and I am not satisfied that the authorities properly considered 
 establish a contrary doctrine." And tliis, says Judge Stor}', 
 seems to have been the course wliich compiended itself to the 
 mind of that great equity judge, Chancellor Kent: Poor v. 
 Carleton, 3 Sumner, 70--82. 
 
United States of America v. Parrott. 365 
 
 We think that the opinion of Judge Story, above cited, is 
 sufficient authority for the position that in cases, like the pres- 
 ent, of irreparable naisohief, the court in examining the affida- 
 vits, assuming them to be admissible, will inquire whether 
 the title of the plaintiff has such a probable foundation as to 
 entitle him to be protected during the litigation by which il 
 will finally be determined. And that in cases of tlireatened 
 waste and destruction of the estate, where the apprehended 
 injury is great and irreparable, as also in cases of the threat- 
 ened destruction of heirlooms, works of art, etc., the court, in 
 the exercise of a sound discretion,, should interfere even in 
 doubtful cases to preserve the parties in statu quo until the 
 right can be determined. 
 
 We will tlierefore examine to some extent the evidence 
 which has been adduced on either side, and which has been so 
 largely discussed at the bar, in order to see whether the com- 
 plainant's title appears to have such a probable foundation, 
 and the allegations of tlie bill are sustained by such proof, as 
 to warrant the court in interposing to protect tlie estate until 
 the determination of the right. 
 
 The title set up by the defendants consists of an alleged 
 mining right or title, originally acquired by denouncement and 
 registry under .the mining laws of Mexico; and secondly, an 
 alleged concession of two sitios de ganado mayer, made by 
 the supreme government of Mexico. 
 
 The evidence of the mining Tight or title is in the form of 
 z,vl exyediente, o^c record, consisting of two letters of Andres 
 Castillero, addressed to Antonio Maria Pico, Alcalde, and an 
 act of possession purporting to be executed by that officer, in 
 which he recites that he has given possession of the mine and 
 of three tliousand varas of land in every direction, to Castil- 
 lero. 
 
 The evidence of the two-league grant consists of a dispatch 
 from Castillo Lanzas, Minister of Exterior Eelations of Mexico, 
 addressed to the governor of California, but produced by the 
 defendants. 
 
 In this dispatch a communication to Lanzas from the min- 
 ister of justice, is set forth. In that communication the min- 
 ister of justice transcribes a communication addressed by him- 
 self to Segura, President of tlie Junta for the Encouragement 
 voi VII.— 25 
 
386 Injunction. 
 
 of Mining. In this last commnnication the minister of jns- 
 tice informs Segura that the president has been pleased to 
 approve the a;;reement made with Oastillero, to commence 
 the exploration of the mine, and that the corresponding com- 
 mnnication is made to the ministry of Exterior Eelations, that 
 it may issue the proper orders relative to what is contained in 
 the eighth proposition with respect to the granting of lands in 
 that department. 
 
 The minister of relations, after reciting the above letter, 
 adds, " And I have the honor to inclose it to yonr Excellency 
 (Lanzas) to the end that with respect to the petition of Senor 
 Oastillero, to which his Excellency the President ad vntervm, 
 has thought proper to accede, that as a colonist there be 
 granted to him two square leagues upon the land of his min- 
 ing possession, your Excellency (viz. Lanzas) will be pleased 
 to issue the orders corresponding." 
 
 Castillo Lanzas thereupon adds, " "Wherefore I transcribe 
 it to yonr Excellency (viz. the governor of California), that in 
 conformity with what is prescribed by the laws and disposi- 
 tions upon colonization, you may put Senor Castillero in pos- 
 session of the two square leagues which are mentioned. God 
 and Liberty, Mexico, May 23, 1846. Castillo Lanzas. To 
 His Excellency, the Governor of the Department of Cali- 
 fornias." 
 
 It is not pretended that this dispatch was ever delivered 
 to, much less acted on by, the governor of California. On its 
 face it purports to be merely one official communication recit- 
 ing another, in which it is stated that the president has 
 thought proper to accede to an application for a grant, and 
 that fact is communicated to the governor in order that he, in 
 conformity with the laws of colonization, may put the appli- 
 cant in possession. 
 
 Whether a dispatch of this kind, addressed by one Mexican 
 functionary to another, never acted on by the latter, and which 
 in all probability could not have reached him until after the 
 subversion of Mexican authority in this country, and after the 
 rights of the United States by conquest had accrued, could 
 convey any title, either legal or equitable, to a person who, 
 during the existence of the Mexican authority, did no act 
 wiiatever on the faith of it, it is not necessary now to decide. 
 
UiiTiTED States of America v. Parrott. 387 
 
 It is at least clear that it is not a formal grant. It is, at most, 
 evidence that the president had acceded to a petition for two 
 leagnes of land. . It is not addressed to the petitioner, nor 
 intended as a muniment of title to him. It is but an order 
 to the governor to make him a title and put him in posses- 
 sion. "Whatever title, therefore, the defendants may claim 
 under this official letter, it is evident that it can be at most 
 but equitable and inchoate, and that, as the two leagues 
 were never measured off to the applicant, nor was he put in 
 possession by Mexican authority, the legal title and right of 
 possession to the land vested by the conquest in the United 
 States. 
 
 It was not contended at the hearing that any measurement 
 was made or possession given of any specific tract of land by 
 metes and bounds, or that the three thousand varas in every 
 direction, mentioned in the act of possession, were marked 
 upon the ground. It is also clear that the mining judge, un- 
 der the ordinances, had no right to give possession of a tract 
 so extensive. It is claimed, iioAvever, that this act of posses- 
 sion was ratified and confirmed by the supreme government. 
 
 No formal act of ratification is produced, or alleged to have 
 been made. The evidence of the ratification is to be found, if 
 at all, in the letter of Lanzas already cited, and in the commu- 
 nications which it recites, and copies of which are produced, 
 taken, it is alleged, from the Mexican arcliives. As Castillero, 
 in his proposals to the mining junta, had asked that body to 
 recommend the ratification of his raining possession, and as the 
 communication from the minister of justice states that the 
 president has been pleased to approve in all its parts the 
 agreement made with Castillero, it is urged that that letter is 
 evidence of such ratification. Whether or not it should so be 
 considered, it belongs to another tribunal to decide. It is not 
 claimed, however, that any possession by metes and bounds of 
 this 3,000-vara tract was taken, nor was any survey or meas- 
 urement effected until long after the conquest of the country, 
 and after the riglits of the United States had accrued. 
 
 It is evident, therefore, that the defendants can claim no 
 legal estate or prior adverse possession, either in the two- 
 league tract which they have surveyed and now occupy, or in 
 the 8,000- vara tract, mentioned in the alcalde's act of posses- 
 sion. 
 
388 Injunction. 
 
 But all these documents are in the bill charged to be fraud- 
 ulent and antedated. 
 
 The evidence chiefly relied on in support of this allegation, 
 is contained in a correspondence attached as an exhibit to the 
 bill. 
 
 The genuineness of all of these letters, except one, is ad- 
 mitted. The answer denies " that the said letters and com- 
 munications' were written by the said parties with intent to 
 commit a fraud, or in furtherance of a conspiracy to fabricate 
 a title, as charged in said bill, except so far -as the said inten- 
 tion appears from said letters on the part of the said James 
 Alexander Forbes." § 32. ' 
 
 Two of the defendants claim under James Alexander Forbes. 
 As to him, the conspiracy to fabricate a title, " so far as 
 appears from said letters," is admitted. 
 
 An examination of the letters will, however, convince us 
 that whatever fraudulent designs were entertained by James 
 Alexander Forbes, were equally entertained by the parties 
 whose agent he was, and with whom he was in correspond- 
 ence, and that the somewhat anomalous case is not presented 
 of a conspiracy by one person. 
 
 The original act of possession, or registry of the mine, was 
 obtained, as alleged by defendants, by Castillero for the bene- 
 fit of himself and his socios or partners. On the 12th June, 
 1846, Jose Castro, in pursuance of powers given to him, as 
 he recites, by his other partners, executed a power of attorney 
 to one McNamara, authorizing him to enter into a contract 
 for the ih.ve& pertenencias oi the mine with an English com- 
 pany, " with exclusion of any other nation." This power of 
 attorney, if its date be genuine, must have been executed on 
 the occasion of McKamara's visit to California in May, 1846, 
 as mentioned in Alexander Forbes' letter of May 11, 1846. 
 He seems not to have immediately acted on it, for a letter is 
 produced from him dated at Houolula on the 27th Septem- 
 ber of the same year. 
 
 As the alleged dispatch of Castillo Lanzas was written in 
 Mexico on the 23d May, 1846, it is evident that at the time 
 of executing this power of attorney the only evidence of title 
 to the mine which Castro could have possessed, or the exist- 
 ence of which he could have known, was the act of the alcalde, 
 
United States of Amekica v. Pakrott, 389 
 
 in which possession is given of three thousand vai'as in every 
 direction from tiie mine. The power of attorney, however, 
 exchisively refers to three jperteneneias oi the mine. 
 
 In pursuance of this power of attorney, McNamara, on the 
 28th day of November, 1846, at Tepic, entered into a contract 
 with Alexander Forbes for tlie working of the mine. It is, We 
 think, evident from the letter of Alexander Forbes, of January 
 7, 1840, that Castillero was present at this negotiation. In 
 that letter Forbes says, " I had the pleasure to receive your 
 very obliging letter of the 29th October last (1846), which 
 chiefly relates to the mine of quicksilver about which I wrote 
 you at so much length by Mr. McNamara. I had, previously 
 to the receipt of your letter, been in treaty with D. Andres 
 Castillero, and on the arrival of Mr. McNamara with powers 
 from the other proprietors, the treaty was much facilitated; 
 and I am now happy to inform you that I have contracted the 
 habiUtacion of the mine, and have purchased a portion of Mr. 
 Oastillero's larras, all of wliich will be made known to you by 
 Mr. Walkinshaw, who goes to California as my agent and 
 attorney for the examination and working of the mine." 
 
 If, then, as would seem to be the case, Castillero was pres- 
 ent when the contract between Forbes and MclSTamara was 
 entered into, it is strange that he did not himself become a 
 party to it; and it is still more strange that the contract refers 
 exclusively to the working of " the three pertenenoias em- 
 braced in said quicksilver mine," and makes no allusion what- 
 ever to the two sitios tract which Castillero must at that time 
 have obtained. 
 
 The instrument by which Castillero ratified this contract, 
 and alsQ that by which he sold a portion of his iarras, are 
 dated in Mexico on the 17th December, 1846. In the deed of 
 ratification, for the first time allusion is made to the two square 
 leagues conceded to Castillero, and a copy of the Lanzas dis- 
 patch is annexed to it. No reference is, however, made to the 
 mining possession of three thousand varas in every direction, 
 nor to any alleged confirmation of it, but tlie contract of Mc- 
 Namara for'working the three pertenencias of the mine is 
 alone referred to. 
 
 In the letter of James Alexander Forbes, in reply to that 
 of Alexander Forbes, of January 7, 1847, and to another of 
 
390 Injukction. 
 
 the 27th January, which is not produced, he says, " It is of the 
 most vital iinportauce to obtain from the government of Mex- 
 ico a positive, formal and unconditional grant of the two dtios 
 of land conceded to D. Andres Castillero, according to the 
 decree appended to the contract, and also an unqualified rati- 
 fication of the judicial possession which was given of the mine 
 by the local authorities; including, if possible, the three thou- 
 sand varas of land given in that possession as a gratification 
 to the discoverer. These documents should be made out in 
 the name of Don Andres Castillero." He then expresses the 
 opinion that it will not be diflBcult to obtain these documents 
 from the supreme government, and adds that they should be 
 of the date of the decree of Senor Lanzas. This letter is re- 
 lied on by the defendants, as showing that at that time the de- 
 cree of Lanzas, as now produced, was in existence. It must 
 be admitted that the reference to a dispatch of Lanzas, or- 
 dering a possession of two sitios to be given, is clear. Wheth- 
 er that dispatch is in ail respects the same as that now exhib- 
 ited does not so certainly appear. But it is equally clear that 
 the recommendation to procure other documents, the dates 
 of which were to be false, is unequivocally and explicitly 
 made. 
 
 No letter is produced from Alexander Forbes which dis- 
 closes the manner in whicli this proposition was received; but 
 in October of the same year we find that the latter has come 
 to California, and is actively engaged in exploring the mine. 
 His proceedings while here will hereafter be referred to. 
 
 Mr. Alexander Forbes seems to have remained in Califor- 
 nia until the end of March, 1848. In April of the same 
 year he appears to have sold his interest in the contract to 
 various Jvabilltadores, among whom Jecker, Torre & Co. and 
 the house of Barron, Forbes & Co., of Tepic, were chiefly in- 
 terested. 
 
 The first letter from these parties is dated on the 20th May, 
 184:9, and is addressed to James Alexander Forbes. It com- 
 mences as follows: " From certain circumstances you have com- 
 municated to us, it may be necessary to purchase some lands in 
 the vicinity of the mineof New Almaden." It then empowers 
 James Alexander Forbes to make such purchase at a sum 
 not exceeding $5,000. On the 27th May, 1849, a memo- 
 
United States of America v. Paekott. 391 
 
 randttm wa.s left with Alexander Forbes, at Tepic, by James 
 Alexander Forbes, "of the documents which Castillero will 
 have to produce in Mexico." The documents required were 
 as follows: 1. A full approbation and ratification of all the 
 acts of the alcalde; 2. An absolute and unconditional title for 
 two leagues of land to Andres Castillero, with boundaries 
 which are mentioned; 3. The dates to be arranged by Don 
 Andres, and to be certified by the American minister. We 
 will hereafter see that this memorandum was alluded to, 
 and its contents repeated, in subsequent letters between the 
 parties. 
 
 On the 28th October, 1849, James Alexander Forbes, in a 
 letter to.William Forbes, again alludes to the insecurity of the 
 title on which the mine was held. After stating his appre- 
 hensions of the destruction of some important papers of the 
 original registry pf the mine, or that a question might arise 
 as to their legality, and after adverting to the fact " that no 
 posterior grant of the government could authorize the occu- 
 pation of the land of the Berreyesas, on which the mine is 
 declared to be situated, in the original expediente oi registry," 
 he adds, " In view of these facts, it behoves you to obtain 
 from the supreme government of Mexico the full and posi- 
 tive grant of the two sitios of land npon the land of New 
 AlmaJen, under date of the order to Castillo Lanzas, bearing 
 in mind that this document must express tlie entire approba- 
 tion of the supreme government of all the concessions made 
 by the local authorities or alcalde of the district of San Jose 
 of the original grant or registration of the mine." He then 
 proceeds to give the boundaries which should be mentioned in 
 the concession. They are the same as those given in the 
 memorandum above referred to. 
 
 In the succeeding letter which, perhaps erroneously, has the 
 same date as the last, James Alexander Forbes again calls the 
 attention of William Forbes to the importance of his sug- 
 gestions relative to the "perfecting of the title to the mine," 
 and adds, "Without now entering into particulars already ex- 
 plained .to yourself and Mr. Alexander Forbes verbally, 1 de- 
 sire only to impress upon your mind the vast importance of 
 securing from the supreme government of Mexico the docu- 
 ments comprised in the memorandum left with Mr. Alexander 
 Forbes when I was in Tepic, for^Oastillero." 
 
392 Injunction. 
 
 On the 30tb October, 1849, he again recurs to tlie 8iil)ject, 
 III his letter of tliat date lie says, "You will now readily perceive 
 the great importance of my advice to purchase a part both of 
 the lands of Cook and of tiie JBerreyesas. You were of opinion 
 that this measure would not be necessary, in view of the sup- 
 posed Jhoilitr/ of getting the title to the mine perfected in 
 Mexico. It is now more than five months since it was decided 
 that Castillero should procure the necessary documents in 
 that' city, and that they should bs sent as soon as possible. 
 On the one hand, I'idepend on \\\e prenarioubs and iilei^al pos- 
 session of the mine granted by the alcalde to Castillero, who 
 was in reality the judge of the quantity of Iftnd given by 
 the alcalde. On the other side, I am attacked by .the pur- 
 chasers of the same land declared by Castillero himself to 
 comprise the mine." 
 
 fie concludes as follows: "I do entreat you to use every 
 effort to send me the document of tJie ratification of the mine, 
 and the grant thereon, at the very earliest opportunity — 
 properly authenticated and certified, as explained' hy me when 
 I was in Tepic." 
 
 On the 30th November, 1849, Barron, Forbes & Co. reply 
 to the communications of Jas. Alex. Forbes. 
 
 As this is the first letter in which his suggestions are no- 
 ticed by the parties with whom he was corresponding, it is 
 important to see how they were received, and how far the al- 
 legation of the answer that the design of fabricating a title 
 existed on the part of James Alex. Forbes alone is sus- 
 tained. 
 
 After acknowledging the receipt of letters and communica- 
 tions from Jas. Alex. Forbes, by the steamers "California" 
 and " Panama," Barron, Forbes & Co. say, " We are glad that 
 you have not been obliged to purchase Eerreyesa's land. This 
 is certainly a most important point, and we trust that the doc- 
 ument sent will be of great consequence in that respect. But 
 you will of course take care that no risk is run, and you will 
 do in this aflfair as your best judgment shall direct you, 
 keeping in view that at all hazards, and whatever cost, the 
 property of the mine m,u8t he seen/red. Castillero, we expect 
 will soon he herefrom Lower California, and if anything 
 can he done in Mexico, he is tlie fittest person to procure what 
 may he wanted." 
 
United States of Ameeica v. Paehott. 393 
 
 On the 1st December, 1849, Alexander Forbes writes to 
 James Alex. Forbes as follows: "The document sent up to 
 you by the last steamer, for the grant of lands to D. Andres 
 Castillero, was ly mistake, not the one meant to he sent. I find 
 now that the p^'oper one was registered hy me in Monterey, 
 and the original deposited there. The one sent yon was di- 
 rected at foot to the governor of California, and the one de- 
 posited at Monterey was directed to Don Andres Castillero. 
 The difference is, that hyone the delivery by the governor was 
 perhaps necessary to m.ake the grant valid, whereas the other, 
 being addressed directly to Don Andres, did not require that 
 formality, nor was any other proceeding necessary, thus mak- 
 ing it a better document than the greater part of the other 
 titles for lands in California," He then proceeds to advise 
 James Alex. Forbes to apply for a copy of the Monterey 
 document, andto withdraw the one sent, and substitute the 
 other. After reminding him of " another difficulty," viz., that 
 the instrument made in the city of Mexico contains an exact , 
 copy of the document sent to him, and addressed to the 
 governor, he concludes by leaving the whole subject to the 
 discretion of his correspondent. 
 
 It is apparent, from this letter, the genuineness of which is 
 admitted, that two documents were then in existence, purport- 
 ing to be concessions of land to Castillero. One addressed to 
 the governor, which is that now produced, and one addressed 
 to Castillero, which has disappeared. None such has been 
 found at Monterey, where Alexander Forbes himself states he 
 deposited it; nor do the defendants now claim that any such 
 document was ever issued. If, as Forbes states, such a docu- 
 ment was deposited in Monterey, it must have been fabricated. 
 For the theory of l^hi8 case on the part of the defendants is, 
 that the dispatch to Lanzas, addressed to the governor, consti- 
 tutes their only title for the two sitios grant. 
 
 On the 20th December, 1849, Jas. Alexander Forbes, in a 
 letter to Barron, Forbes & Co., acknowledges the receipt of a 
 certified copy of the grant of the two sitios to Castillero, and 
 states at length his opinion that it is insufficient. He again 
 urgently recommends that "Castillero, or some other fit person, 
 should obtain from tlie supreme government of Mexico, a posi- 
 tive, explicit, and unconditional grant of the two sitios of 
 
39-1 Injunction. 
 
 land. In this document particular reference must be made to 
 the concession of the mine by the alcalde of San Jose, approv- 
 ing of said concession, and conceding to Castillero and hi» as- 
 sociates in place of the three thousand varas, the said two sitios 
 of land, citing dates, and making that of the said document to 
 correspond with the imperfect <md ambiguous document of 
 which you have sent me the copy." 
 
 At the close of tiiis letter he adds, "I pray you not to he 
 deluded into the belief that there will be no necessity for 
 obtaining the document herein described." 
 
 On the 29th January, 1850, James Alexander Forbes ac- 
 knowledges to Alexander Forbes, the receipt of a copy of the 
 contract of hahilitacion, and adds, " As you request me to ad- 
 dress myself to B., F. & Co. (Barron, Forbes & Co.) on the 
 afiFair of the mine, I have now written upon this particular 
 subject, to which I request their earnest attention, not as re- 
 gards the habilitation, but another document which you hnow 
 
 of." 
 
 On the 3d February, 1850, Alexander Forbes writes to 
 James Alexander Forbes as follows: " I have every reason to 
 believe that the documents you mentioned will be found in 
 the city of Mexico; and as Mr. Castillero will return there, 
 they will no doubt be procured; but we are at some loss to 
 know what is exactly wanted, and I beg you will by the next 
 steamer give a sketch of the documents to which you allude, 
 particularly a description of the limits of the grant. I think 
 you must not have received the information sent you of the 
 existence of the grant of the two sitios directly to Castillero 
 and registered in Monterey; nor am I si^re if that will mend 
 the matter." 
 
 After alluding to a last resort which he mentions "with 
 great repugnance," viz., " the promotion of the invalidation 
 of the title of the Berreyesas to their rancho," and adding that 
 "if no opposition or disclosures are made, they may be left in 
 possession," he proceeds as follows: 
 
 " We think at present that it may be the best plan to get an 
 authenticated copy of the approval of the Mexican government 
 of the grant of 3,000 varas given by the alcalde. Castillero 
 says such approval was given, and that on his arrival he will 
 procure a judicial copy of it. This is the plan we shall adopt» 
 
United States of America v. Paerott. 395 
 
 if we hear nothing from you to alter this resolution. - Since 
 writing the foregoing, I liave looked over your private letter 
 to William Forbes, dated October 18th, and find you state the 
 limits or boundaries as follows." Mr. Forbes then states tlie 
 boundaries, and adds, " Castillero is not certain of accomplish- 
 ing this latter plan, and thinks the tirdt, that is, the three 
 thousand varas, the best." 
 
 ' And on the 6th February, 1850, Barron, Forbes & Co. write 
 to Jas. Alex. Forbes, informing him that " they had hoped 
 that the document lately sent for-this grant to Castillero, would 
 have been sufficient; but as you seem doubtful on this point, 
 we have spoken to him, and his opinion is, that if this grant 
 is not tenable, it will be better to go upon the three thousand 
 varas of the alcalde, granted at the time of giving possession 
 of the mine, and approved of by the Mexican government, 
 which approval will be taken from the Mexican archives and 
 sent on to you." 
 
 On the 26th February, 1850, Jas. Alex. Forbes again ad- 
 dresses Alexander Forbes on the subject of the title. He 
 says, " I really did have more faith in the tact and ability of 
 Castillero to perceive the important objects set forth in my 
 memorandum of what was to be done nine months a«;o by that 
 eccentric individual, and that with the powerful mfluence he 
 was to have exercised, and, the efficient aid that was to he lent 
 him, he would meet with no obstacle to the attainment of the 
 important documents explained in that memorandum. But 
 Castillero has deceived himself; for he thought that boundaries 
 were not necessary, as I shall presently show you. He suc- 
 ceeded in obtaining the grant of two sitios to himself in the 
 mining possession of Santa Clara, while that very act of pos- 
 session declares that the mine is situated on the land of Jose 
 Berreyesa, five leagues distant from Santa Clara, etc. With- 
 out troubling you with what I have so many times written and 
 explained to you verbally on the importance ot the acquisition 
 of the document, I will only say now what it must be; and it is 
 this." The documents so often mentioned are again described 
 with the impressive injunction that " both must he of the 
 proper date, ojvd placed in the proper governmental custody 
 in Mexico." 
 
 On the 2d March, 1850, Barron, Forbes & Co. inform James 
 
396 Injunction. 
 
 Alex. Forbes fcliat "Mr. Barron and Don Andres Castillero are 
 about to proceed to Mexico, aind will attend to whatyouhcCve 
 recommended." 
 
 On the T6th March, 1850, Alexander Forbes writes to 
 James Alex. Forbes, " Mr. Barron and Oastillero have gone 
 oif to Mexico, and I wrote them to-day respecting the doou- 
 ment you know of, which, if possible, will he proov/red." 
 This letter significantly concludes, ^^ Let us have quicksilver 
 and all will he well." 
 
 On the 7th April, 1850, Alexander Forbes informs Jas, 
 Alex. Forbes that " Mr. Barron and Castillero have arrived 
 iti Mexico, and have every prospect of -finding thedocuments 
 you are aware of." 
 
 With this letter of the 16th March, 1850, all information as 
 to the operations of Barron and Castillero in Mexico ceases. 
 It is not disclosed what unexpected obstacle prevented their 
 ^'■finding" in Mexico the documents so much desired, *or 
 wiiether the doubts which Castillero entertained of " leing able 
 to accom]ilish the latter plan" (i. e., the grant of two sitios by 
 definite boundaries) were unhappily realized. 
 
 Comment on the evidence afforded by these letters of a 
 c:)n8piracy to fabricate titles on the part, not of James Alex- 
 ander Forbes alone, as the answer admits, but of Alexander 
 Forbes, and of Barron, Forbes & Co., is unnecessary. The 
 full and specific instructions for the documents " to be pro- 
 cured" and for the " arrangement of their dates," originally 
 given by Jas. Alex. Forbes, and so frequently referred to and 
 repeated; the recital, in the letter of Alexander Forbes, of 
 February 3, 1850, of the boundaries indicated in the memo- 
 randum left by Jas. Alex. Forbes at Tepic; the positive state- 
 ment by the former that the documents mentioned would, no 
 doubt, he procured by Castillero; the doubts as to the best 
 "plan" to be pursued in their fabrication; the announcement 
 by Barron, Forbes & Co. that Mr. Barron and Castillero 
 " are about to proceed to Mexico, and wonld attend to what 
 Jas. Alex. Forbes had recommended;" the significant instruc- 
 tion of Alexander Forbes to Jas. Alexander Forbes that " the 
 document you know of" will, if possible, be procured; and, 
 finally, the announcement that they had arrived in Mexico, 
 and " had every prospect of finding the documents you a/r& 
 
Ujsited States of America v. Paeeott. 397 
 
 aware of ^^ — seem to establish beyond doubt, the existence of 
 tiie conspiracy to fabricate titles as alleged in the bill. 
 
 The nature ol the suggestions of James Alexander Forbes 
 is as clear as language can make it. No answers from Alex- 
 ander Forbes or from Barron, Forbes & Co. are produced in 
 which those suggestions are rejected with the natural indig- 
 nation of honesty. On the contrary, they are received and 
 acted upon. 
 
 It is urged, however, that these letters themselves disclose 
 that the Castillo-Lanzas dispatch, now produced, was in exist- 
 ence at least as early as May 5, 1847; and that therefore it 
 must be regarded as genuine, whatever designs may have been 
 subsequently entertained to fabricate or to '■^procure" other 
 documents. 
 
 We have seen that this document for the first time appears 
 in the instrument of ratification by Castillero, dated at Mex- 
 ico, December 17, 1846; that no mention is made of it in 
 the contract of McNamara with Alexander Forbes, made at 
 Tepic, and dated November 28th of the same year, although 
 it would seem from Alexander Forbes' letter that Castillero was 
 then present, and must have then been in possession of the 
 Lanzas dispatch if it was issued at the time it is dated. 
 Admitting, then, that the dispatch referred to by James Al- 
 exander Forbes in his letter of the 5th May, 1847, is tbe same 
 as that now produced, a copy of which is appended to the 
 contract of the ■17th December, it merely proves that the 
 dispatch was in existence at the latter date, which was after 
 the entire subversion of the Mexican authority in California. 
 
 If, however, the letter of Alexander Forbes of March 28, 
 1848, be genuine, it is an express admission that all the docu- 
 ments produced by Castillero in Mexico as his title to the 
 mine and lands were obtained long after the occupation of 
 California by the Americans. 
 
 In that letter Mr. Forbes says, " But this interest renders 
 it necessary for me to have the control of all the shares, in 
 order that I may dispose of the whole whenever an opportu- 
 nity may ofl'er, and save myself from the heavy loss that would 
 ensue shou^id it unfortunately leak out that in fact all the. 
 documents procured by Castillero in Mexico as his title to 
 the mine and lands WJe^v all obtained long after the occnpn- 
 
398 Injunction. 
 
 tion of California by the Americans." " This unforttinate ir- 
 regularity can not easily be repaired, and serious objections 
 might be made to our new act of possession." 
 
 The authenticity of this letter is denied by the defendants.^ 
 The oriifinal is not produced. It is stated by James Alex- 
 ander Forbes to have been stolen from him. The existence of 
 the original and the accuracy of the copy are sworn to by two 
 witnesses, James Alexander Forbes and Kobert Bimie. The 
 latter swears that he was employed by one of the defendants 
 to obtain from James Alexander Forbes any document that 
 Avould be prejudicial to the mine, and he was informed that 
 any such document would be liberally paid for. He accord- 
 ingly made a copy of the letter of Alexander Forbes of March 
 38, 1848, which he gave to Mr. Barron, by whom he was paid 
 at the time $200, and $200 a few days afterward. That the 
 copy now produced is the same as that left with Mr. Barron, 
 and that the original was in the handwriting of Alexander 
 Forbes, with which the witness is acquainted. James Alex- 
 ander Forbes states that on the day on which he furnished a 
 copy of this letter to be given to Mr. Barron, the letter was 
 stolen from his carpet-bag. 
 
 The character of Mr. Birnie is unimpeached, No affidavits 
 contradicting any of the statements made by him have been 
 submitted. 
 
 We are therefore not warranted in treating the allegatio-. 
 of the answer that this letter is forged, as sufficient to establish 
 the fact. 
 
 We have seen from the letter of Alexander Forbes of the 
 1st December, 18i9, and from his letter of 3d February, 1850, 
 that at the date of the former there were at least two doc- 
 uments for the grant of lands to D. Andres Oastillero: one, a 
 notarial copy of which had been sent to James Alexander 
 Forbes, which was directed at foot to the governor; the other, 
 the original of which was deposited at Monterey, and "which 
 was " directly addressed to Don Andres," and therefore did 
 not, in the opinion of Alexander Forbes, require a delivery by 
 the governor to make it valid. 
 
 This latter, as has been stated, has not been produced, nor 
 is it protended by the defendants that it ever existed. The fact 
 that Mr. Forbes deposited at Monterey the original of a doc- 
 
United States of Ameeica v. Pareott. 399 
 
 Timent which would thus seem to have been fabricated, may 
 well suggest suspicions as to the genuineness of the other 
 which is now produced. 
 
 In the exhibit attached to the deposition of Jose M. La- 
 fragua, a copy of the Castillo-Lanzas dispatch is found, to- 
 gether with a certificate of Jesus Vejar, a notary public, signed 
 as it recites, on the 1st March, 1850, " at the instance of 
 Messrs. Barron, Forbes & Co." In this certificate the no- 
 tary attests that the dispatch signed by Lanzas has " been 
 respected under that signature, and obeyed by the Mexican 
 authorities that governed in Upper California in the year 1846 
 — according to-lnsertions which said authorities made of said 
 instrument in acts which they passed upon the subject of 
 which they treat, and wliich I certify to have seen." 
 
 Almost every statement contained in this certificate is ad. 
 mitted to be false. It is not pretended by the defendants that 
 the dispatch of Lanzas was ever delivered to the governor, nor 
 that it was even presented to, much less " respected and obeyed 
 by the Mexican authorities of Upper California, in the year 
 1846." The " insertions of said instrument, made by those 
 authorities, in acts which they passed upon the subject," and 
 which the notary certifies to have seen, are purely imaginary. 
 "When a certificate of this character is procured from a Mexi- 
 can notary, by some of the defendants in this case, and by them 
 filed as an exhibit, the court is surely justified in regarding 
 witli suspicion, not only all documents which are authenti- 
 cated in a similar manner, but also those the genuineness of 
 which is assailed by other proofs. 
 
 We have thus far considered the case as it is presented by 
 defendants, and as it appears from the letters admitted by 
 themselves to be genuine, with the exception of one letter, the 
 genuineness of which they deny. "We have not thought it 
 necessary to enter upon a minute examination of the mass of 
 evidence which has been offered on either side. That duty 
 properly belongs to the district court. 
 
 "Whether or not the letters are susceptible of an explanation 
 consistent with thebonajldesof the parties b}' whom they are 
 written, whether or not the testimony of Lafragna, and other 
 witnesses, the mention of this grant in his report, and the 
 production of the document from the archives, and other evi- 
 
430 iJrJUNcnoN. 
 
 dence which may be offered hereafter, will be sufficient to 
 satisfy that court of the genuineness of the titles produced 
 by the defendants,' we can not now anticipate. 
 
 We have only entered upon the inquiry so far as was n3c- 
 essary to show that the allegations of fraud in the bill are 
 sustained by testimony sufficient to suggest grave suspicions 
 as to the genuineness of the titles on which the defendants 
 rely, and to justify the court in interposing, by injunction, in 
 behalf of the legal title, to stay the destruction of the estate 
 in controversy, pending the proceeding by which the validity 
 of the title will finally be determined. 
 
 Allusion has been made to the visit of Alexander Forbes 
 to California in October, 1847. His proceedings on his arrival 
 will now be adverted to, with a view of showing how the pos- 
 session of the lands and mine now held by the defendants was 
 acquired. 
 
 In the letter of James Alexander Forbes to Eustace Barron, 
 dated January 30, 1846, information is given that " Castillero, 
 a sort of commissioner from the Mexican government, is 
 working a quicksilver mine near the mission of Santa Clara." 
 How long he continued in California does not appear except 
 from the affidavit of Forbes, in whioh it is stated that soon 
 after entering into partnership with his associates, he went 
 to Mexico and never returned. It also appears from the same 
 affidavit that Padre Real, one of the partners, was left in pos- 
 session. On the 22d September, 1846, James Alexander 
 Forbes writes to Alexander Forbes, " I am now in charge 
 of the quicksilver mine, and am going to work it until I hear 
 from Castillero, and am upon the point of striking a bargain 
 for four shares." The motive for thus transferring the pos- 
 session to James Alexander Forbes is stated by Mr. Forbes in 
 his affidavit, and is in itself probable. It was to place the 
 mine under cover of English protection, as the American forces 
 were in possession of California, and Mr. Forbes was British 
 vice-consul. The possession so delivered to Mr. Forbes com- 
 prised the mine itself, a log cabin and shed, together witli some 
 old tools and utensils. The cabin was not occupied, but an 
 Indian sometimes slept in the mine. Up to tliis time, 2,000 
 lbs, of quicksilver had been extracted. It is further stated by 
 Forbes that this possession was kept up by Indians whom he 
 
United States of America v. Paebott. 401 
 
 sent to work there, although during the winter of 1846 it was 
 for a time entirelj' abandoned. 
 
 Such seems to have been the situation of the property up 
 to the time wlien Alexander Forbes acqxiired his interest in it 
 by his contract with McJ!Tamara, and dispatched Walkinshaw 
 to California as his agent. To him, Mr. James Alexander 
 Forbes transferred the possession, and assays and observations 
 were commenced. The scarcity of operatives and the indo- 
 lence of the Indians appear, however, to have prevented g,ny 
 considerable operations. In the month of October, 1847, Mr. 
 Alexander Forbes arrived in California, with tools and labor- 
 ers. 
 
 On his arrival, explorations were immediately commenced, 
 and on the 24th November, 1847, he announces the discovery 
 of the " ointa," or vein of ores, the direction of which had 
 been before entirely mistaken. On the 19th January, 1848, 
 he writes to James Alexander Forbes, as follows: " I am very 
 much obliged to you for your very prompt attention to the 
 business in hand, and^return the expediente immediately. I 
 am much surprised at the result of your assay, and shall try 
 what I have. It will, of course, be better to-saynothing about 
 it, 'particularly as I ha/ce already written to Monterey that 
 there is no mine,' nor does there appear to be any quantity of 
 this kind of stuflf. I hope soon to see the alcaldey 
 
 It is admitted in the answer that in January, 1848, the 
 alcalde, James W. Weekes, made on the petition of Alexander 
 Forbes, " a concession to him of the said mine, to correct and 
 reform what had previously been given." The extent of the 
 possession sq given is stated by James Alexander Forbes to 
 have been four pertenencias, or two hundred by eight hundred 
 varas. It is to this "new act of possession " that Alexander 
 Forbes probably alludes in his letter of 25th March, 1848, 
 when he says "that serious objections may be made to its 
 legality,'' Shortly after tiiis possession was obtained, Mr. 
 Forbes caused two square leagues to be surveyed around tiie 
 mine, which in 1852 were put under fence, and have ever since 
 been inclosed, and are now in possession of defendants. 
 
 It is obvious that neither the act of Weekes, by which pos- 
 session was given of a tract of eight hundred by two iiundred 
 varas, nor the act of Forbes himself, by which possession was 
 VOL. VII.— 26 
 
402 iNJUNCTioiir. 
 
 taken of two square leagues, can have any validity against the 
 United States, who had already acquired the legal title to and 
 constructive possession of tiie land. 
 
 It is not claimed that at the time of the first possession any 
 mBasurement was made or boundaries fixed of the three thou- 
 sand varas of which possession was alleged to have been given. 
 No evidence has been offered to show that the possession up to 
 the time of Weekes' measurement was other than that de- 
 scribed in the affidavit of Mr. Forbes. 
 
 It has already been statqd that the mining title relied on by 
 the defendants is claimed to be founded on a registry and act 
 of possession by Pico, the alcalde of San Jose. 
 , At the time when Weekes, the American alcalde, gave the 
 possession of the mine and four pertenencias above referred 
 to, Alexander Forbes also procured from him a certified copy 
 of the expediente of the mine. This copy was prepared by 
 James Alexander Forbes from an original furnished to him by 
 Alexander Forbes; and to this copy the certificate of Weekes 
 is annexed, certifying it to be "a faithful copy made, to the 
 letter, from its original, the expediente of the mine of Santa 
 Clara, or New Almaden, which exists in the archives under 
 ray charge." This certificate is admitted to be untrue, or at 
 least inaccurate. The original from the archives of the 
 alcalde has since been produced, and it shows that the copy 
 certified by Weekes is neither " faithful " nor " to the letter." 
 It is evident that the copy certified to by Weekes could neither 
 have been prepared from nor compared with "any original 
 existing in the archives under his charge." 
 
 The original expediente now produced, is stated by Capt. 
 Halleck, the superintendent of the mine, to have been found 
 by himself in the office of Mr. Belden, Mayor of San Jos6, in 
 the winter of 1851. If this document be indeed the original 
 denouncement and registry of the mine, and if from the time 
 of the denouncement It had remained on file as an original 
 record in the alcalde's office, it is strange that the superin- 
 tendent and counsel of the mine should so Ion? have been 
 Ignorant of its existence. 
 
 In the suit brought in 1850 for the possession of the mine, 
 by Berreyesa against James Alexander Forbes and Walkin- 
 shaw in the District Court for Santa Clara county, a motion 
 
United StTates op America v. Paekott. 4(53 
 
 was made to require the defendants to produce " all papers of 
 a pretended grant for two sitios, together with all other paper 
 or papers connected with the title to said Almaden mine or 
 the land upon which the same is situated, upon which defend- 
 ants intend to found their claim to said land or said mines, 
 etc." This motion was granted by the court, and said papers 
 " or copies thereof" were ordered to be produced according to 
 said motion. 
 
 To this order the defendants answered by affidavit. 
 
 In this affidavit they allege " that they have exercised all 
 diligence to procure the said documents; but have been un- 
 able to do so, but expect soon to receive them from the parties 
 in Mexico who hold them." 
 
 They further aver " that tlie said documents and others 
 which they have sent for in Mexico, are necessary to enable 
 them to proceed to the trial of tiie cause; and they specify the 
 following documents as absolutely necessary to them before 
 they can proceed to trial." 
 
 1st. " The original denouncement of the mine of New Al- 
 maden, and the judicial possession given of the same in the 
 year 1845." 
 
 2d. "The confirmation of said denouncement and posses- 
 sion by the supreme government in 1846, and prior to the 
 late declaration of war by tiie United States against Mexico." 
 
 3d. "The original grant of land, including said mining 
 possession, made by the supreme government of Mexico prior 
 to the declaration of war as aforesaid to the owners of said 
 mine." 
 
 This affidavit is sworn to by Mr. Halleck, one of the 
 attorneys for defendants. It is evident that at this time, viz., 
 December, 1850, Mr. Halleck could not have been aware that 
 the original denouncement of the mine and judicial possession 
 of the same given in the year 1845, was not in Mexico, but on 
 file among the archives of the alcalde's office to which it 
 belonged. Nor could he have been aware that the concession 
 of two leagues and the ratification of the mihing possession 
 were not, as implied in his affidavit, contained in two docu- 
 ments, but in one, viz., the dispatch of Castillo Lanzas, and 
 that that dispatch was not dated " prior to the declaration of 
 war by the United States," biit ten days subsequently. 
 
40i Injunction. 
 
 But at this very time Mr. James Alex. Forbes, one of the 
 defendants in that suit, had already received a notarial co))y 
 of the Lanzas dispatch, addressed to the governor of California; 
 and the original of another, addressed to Andres Castillero 
 himself, he liad been informed by Alexander Forbes had been 
 deposited and registered in Monterey. 
 
 Up to the time of filing the petition of Castillero to tlie 
 board of land commissioners, tiie original expediente on file in 
 the recorder's office seems to have escaped observation ; for tlie 
 exhibit filed with that petition is a copy of the document cer- 
 tified to by Weekes, and not a copy of that since produced 
 from the recorder's office. We are aware that all these cir- 
 cumstances may be explained, and that the genuineness of 
 this document is testified to by a number of witnesses. We 
 have referred to the manner and time of its production, to show 
 that it has not that proof of genuineness which would be af- 
 forded by its admitted production from the archives of a 
 Mexican office, transferred to us on the acquisition of the 
 country. 
 
 The defendants have also produced in support of their title 
 a large number of documents, purporting to be copies of orig- 
 inals on file in Mexico. They consist of official communica- 
 tions from various officers in Mexico, and purport to be the 
 proceedings of those authorities, on the application of Castillero 
 to the Junta for the Encouragement of Mining, and which re- 
 sulted, it is claimed, in the concession of the two sitios, as 
 shown in the dispatch of Lanzas. 
 
 None of these documents are authenticated under the great 
 seal of Mexico. They are certified by the secretary or chief 
 clerk of the departments in which tlie proceedings purport to 
 have taken place. They have been recently procured in Mexico 
 by an agent of the defendants. 
 
 Whether documents alleged to exist in the archives of 
 Mexico, can be regarded by the court if unauthenticated by 
 the political power of that country under its great seal, it is 
 not necessary now to decide. But as they have been obtained 
 since the visit of Mr. Barron and Castillero to Mexico, and as 
 the last injunction of James Alexander Forbes to Alexander 
 Forbes was to have the documents referred to by him "of the 
 proper date, and placed in the proper governmental custody 
 
United States op America v. Pakrott. 405 
 
 in Mexico," we are at least justified in regarding auch docu- 
 ments with suspicion unless authenticated in tlie most satis- 
 factory manner. But especially should, we call for such proof, 
 when we remember that the documents purport to be a grant 
 of land in California, dated May 23, 1846, and that the 
 Mexican government, in the original treaty of peace with the 
 United States, declared in the 10th article, " that no grants 
 whatever of lands in any of the territories ceded to the 
 United States had been made since the 13th day of May 
 1846." 
 
 We have thus examined at greater length than was intended 
 the evidence on which the United States rely, to sustain the 
 allegations of fraud which are made in the bill. The evidence 
 considered has been chiefly that afforded by a correspond- 
 ence admitted, with the exception of one letter, to be genuine; 
 and that relating to the production of the expediente of the 
 mine, in great part presented by the defendants themselves. 
 The examination has been prosecuted not with a view of reach- 
 ing any conclusion upon the question involved, but merely to 
 ascertain whether the allegations of fraud in the bill which are 
 not positively denied by the answer, have, such a probable 
 foundation as to justify the court in interfering by injunction, 
 to preserve the property during the investigation in which 
 the validity of the title will finally be determined. 
 
 The results of the examination may briefly be recapitulated ^ 
 as follows: 
 
 It appears from the letters of the defendants, or those under 
 whom they claim, that in the years 1847, 1848, 1849 and 1850, 
 plans were discussed, and the design was entertained to pro- 
 cure documents from Mexico, the dates of which were to be 
 " arranged " by Castillero, and which were to be "placed in 
 proper governmental custody in Mexico," and certified copies 
 of which were to be sent on. That in May, 1850, Mr. Barron 
 and Castillero proceeded to Mexico, " to attend to what had 
 been recommended " by James Alexander Forbes. 
 
 That documents have since been produced "from the 
 proper gavernmental custody in Mexico," which are claimed 
 to be a grant of two leagues of land and ratification of the 
 mining possession. That these documents are not attested 
 by the great seal of Mexico, or officially authenticated and 
 
406 Injcnction". 
 
 recognized as genuine by the political power of that country. 
 That they are dated subsequently to the 13th of May, 1846, 
 and that the Mexican commissioners solemnly and repeatedly 
 declared to the government of the United States that no 
 grants whatever of lands had been made in the territory of 
 California since that date. That in December, 1849, two 
 documents, of nearly similar import, appear to have been in 
 existence, both of which could not have been genuine. That 
 the original of one of these, which was deposited in Monterey, 
 has disappeared; while the other is authenticated by the cer- 
 tificate of a notary, obtained, as it recites, at the instance of 
 some of the defendants, nearly every statement of which is 
 untrue. That the expediente of the mine originally produced, 
 and which was by Alexander Forbes procured, to be certified 
 by Weekes to be a " faithful copy to the letter " of the eaype- 
 diente on file in his ofiice, is not a copy of the document since 
 produced from that ofiice. 
 
 That this last document was not discovered until 1851, and 
 up to that time its existence seems to have been unknown to 
 those of the defendants who were most likely to have known 
 of it, and to their agent and attorneys. 
 
 That no measurement of the land alleged to have been 
 granted by the alcalde, or demarkation of its boundaries, was 
 effected during the continuance of the Mexican authority in 
 this country; but the possession of the mine itself, which had 
 been kept up with occasional interrnptions by Indian work- 
 men, was transferred after the occupation of the country to 
 the British vice-consul, in order to place it undercover of the 
 protection of the English government. That the first formal 
 possession, by metes and bounds, of the tract now held by 
 defendants, was taken long after the occupation of California 
 by the American forces, and after the title of the United 
 States had accrued. That at the time this possession was 
 taken, the existence of valuable ores on the land was studiously 
 concealed; and that two leagues of land were subsequently 
 taken possession of and inclosed by the defendants without 
 any authority whatever. 
 
 It further appears that the United States are now seized of 
 the legal title of the land, and that the title of the defendants, 
 assuming it to be d genuine but an imperfect or equitable title, 
 
BuENETT V. Whitesides, 407 
 
 is one the validity of which, under the Mexican mining and 
 colonization laws, is open to grave doubts. All these circum- 
 stances are, in our opinion, abundantly sufficient to show, not 
 only that there is a substantial ground of controversy between 
 the parties, l)ut that the allegations of fraud in the bill, whicli 
 are met with no positive denial in the answers, are sustained 
 by proofs off the fraudulent designs of the parties, and of the 
 manner in which the documents are produced, Which leave the 
 question of their genuineness open to grave doubts. 
 
 In such a case, wiiere the substance of the estate and that 
 which constitutes its chief value, is being wasted and carried 
 off in enormous quantities, and where the threatened injury is 
 to an extent far greater than can be compensated by damages, 
 it seems to us clearly the duty of the court to preserve the 
 property pending the litigation by which the riglit to it will 
 be determined. 
 
 Burnett v. Whitesides et al. 
 
 (13 California, 156. Supreme Court, 1859.) 
 
 ' General allei^rations insufficient if equities denied. A party who claims 
 the right to the waters of a ditch and aver-: that defendants are divert- 
 ing the same, and thereby causing irreparable damage, is not entitled 
 to an injunction, if the answer denies the equity of the bill, unless some 
 equitable circumstances beyond the general allegation of iiTeparable 
 injury be shown, such as a threatened destruction of the property, or 
 the like. 
 
 Appeal from the Tenth District. 
 
 Mesick & SwEZY, for appellant. 
 
 Keaedan, Mitchell & Smith, for respondents. 
 
 Baldwin, J., delivered the opinion of the court, Teeet, 
 C. J., concurring. 
 
 This appeal is from an order dissolving an injunction. The 
 injunction was granted to restrain the defendants from divert- 
 
 ' U. S. V. ParroU, 7 M. R. 336; Moore v. Ferrell, 7 M. R. 281. 
 
408 iNjcNCTioisr. 
 
 ing the water of a certain stream from the plaintiff's ditch, 
 the plaintiff claiming a prior appropriation and averring irrep- 
 arable injury. Tiie answer denies the equity of the bill, 
 averring that the ditch of defendants only diverted the water 
 not appropriated by the plaintiff. The fact further appears 
 that the ditch of defendants has been constructed for several 
 years within the knowledge of the plaintiff. The motion was 
 heard on complaint and answer. There is no allegation of the 
 insolvency of defendants, nor that they will not be able to 
 answer all damages recoverable at law, nor any peculiar 
 grounds shown why a recovery could not be had at law for 
 these damages. 
 
 It presents the naked case of a claim of property and for 
 damages made, and tliis claim denied, and no proof of the 
 claim; and no showing of irreparable damage nor equitable 
 circumstances calling for the interposition of the restraining 
 power of the court. Prima facie, the party in possession of 
 this water is at least as much entitled to the property as a 
 claimant out of possession ; and the, answer of the defendants 
 as much proof of the defendants' right as the complaint of 
 the plaintiff is evidence of his right. The granting and dis- 
 solving of injunctions is sery much a matter of discretion, 
 but this discretion must be regulated by sound and just rules. 
 For a court of chancery to interpose in such a case as this, 
 might lead to the very hardships and irreparable injury which 
 is the ground of the claim of plaintiff to its interference. It 
 ought not to interpose, unless under very peculiar circum- 
 stances, when long delays have intervened since the alleged in- 
 jury or cause of it existed; nor ought it to interpose unless 
 some equitable circumstances beyond the general allegation 
 of irreparable injury be shown — such as insolvency, or imped- 
 iments to a judgment at law, or to adequate legal relief, or 
 a threatened destruction of the property, or the like. But it 
 is erfough for this case to hold that as the entire equity of the 
 bill is denied in the answer, and there is no support of the 
 bill, the injunction should be dissolved: Oa/rdner v. PerJcma, 
 9 Oal. 553. 
 
 We understand that to be this case. 
 
 Judgment affirmed. 
 
Emmons v. McKesson, 409 
 
 Emmons v. McKesson. 
 
 (5 Jones' Eq. 92. Supreme Court of North Carolina, 1859.) 
 
 Surety can not rescind, discarding' principal. "Where A, as principal, 
 and B, as surety, gave a note on an executory contract for the purchase 
 of a copper mine in which contract a fraud was practiced on A, it was 
 held, that a bill filed by B alone, praying for an injunction to stay exe- 
 cution on a judgment at law, obtained on the note, the bill setting up 
 no other equity, and failing to pray for any disposition of the original 
 transaction, was defective in substance. 
 
 Copies required on appeal. Sending up the original papers on appeal is 
 not to be suffered, even where there is consent. 
 
 Appeal from an interlocutory order of the Court of Equity 
 of Wake County, Caldwell, J., presiding. 
 
 The plaintiff, the surety and his son, Eb. Emmons, Jun., 
 joined in a note to the defendant, for the sum of $500, as the 
 price of one fourth of the defendant's mining interest in a 
 certain copper mine in the county of Ashe, in this State, 
 called the Maxwell mine, aUd at the time said note was given, 
 the defendant, McKesson, entered into a bond to convey to 
 the said Ebenezer Emmons, Jr., one undivided fourth part of 
 said interest. When the note became due, the plaintiff and 
 his son w-ere absent from the State, and the defendant took 
 out an attachment against them on account of said debt,- and 
 had one Samuel McD. Tate summoned as garnishee, and on 
 his answer, the plaintiff not appearing to the suit, a judj^raent 
 .was rendered against them in the County Court of Burke, for 
 tlie debt ($599.11), and execution issued thereon to the sheriff 
 of Wake county. 
 
 The plaintiff in his bill alleges that McKesson represented 
 himSelf as the entire owner of the mine; that this was not 
 the truth, for that one Willis was the owner of one half of it, 
 and had so been declared by a decree of the Court of Equity 
 of Burke county. 
 
 He also alleges that he was a citizen of Wake county at the 
 
410 . Injunction. 
 
 time the attachment was taken ont against him, and that lie, 
 the plaintiff, had no right to take out that process against 
 him; also that there was nothing levied on to snstain the' 
 attachment; for that Tate, the garnishee, did not admit that 
 he owed plaintiff anything, and that for these reasons the 
 judgment was irregular and void. 
 
 Tiie prayer of the bill is for an injunction, "commanding 
 the sheriff of Wake to proceed no further under the said fi. 
 fa." and for general relief. 
 
 The injunction issued in vacation as praj'cd, and on the 
 return of the same, the defendant filed an answer, denying 
 all the allegations of fact stated in the bill,, upon which relief 
 was asked. 
 
 On the coming in of the answer, the defendant's counsel 
 moved for the dissolution of the injunction, which the court 
 refused, and ordered it to be continued to the hearing of the 
 cause. 
 
 From this order the defendant appealed. 
 
 Cantwell and Fowle, for the plaintiff. 
 
 E. G. Hatwood and Miller, for the defendant. 
 
 Peaeson, 0. J. 
 
 There is error in the decretal order. The motion to dis- 
 solve the injunction ought to have been allowed. 
 
 1. The bill is fatally defective in substance, and the in- 
 junction was improvidently granted. The only object of tlie 
 plaintiff seems to be to have the defendant perpetually en- 
 joined from issuing or enforcing execution on the judgment. 
 What is to be done with the contract, in consideration of which" 
 the note was executed? Will a specific performance be here- 
 after asked for by the son of the plaintiff ? 
 
 Or will he seek to have the contract rescinded on the 
 ground that it was obtained by false representations? 
 
 These are matters about which the plaintiff supposes he 
 has no concern, and yet it is entirely clear that his equity, if 
 he has any, is a mere incident to the equity of his son, if he 
 has any, and must be set up through or under him. Conse- 
 
Emmons v. McKesson. 41 1 
 
 qnently, tlie son ought to have been made a party, with 
 proper "allegations to set up his as the primary equity, 
 which would lay a foundation for an injunction as ancillary 
 and in furtherance thereof. No precedent can be found for a 
 bill like the present, where an injunction against an execu- 
 tion on a judgment at law is the only relief asked for, and the 
 original transaction is left open as a subject for future litiga- 
 'tion. 
 
 In cases of injunctions to prevent foHs, the plaintiff alleges 
 a legal title and asks the interference of this court on the 
 ground of irreparable injur j/. So, of course, a perpetual in- 
 junction is the only i-elief asked for. But in all other cases of 
 injunction the plaintiff alleges some primary equity, as an 
 equitable estate, which entitles him to call for a legal title, or 
 an equitable riglit which he is seeking to enforce and the in- 
 junction is prayed for in aid of the primary equitj-, so as to 
 prevent loss or damage or inconvenience until he has an 
 opportunity to establish it. This subject is explained in Pat- 
 terson V. Miller, 4 Jones' -Eq. 451. 
 
 2. If it is admitted that the judgment is irregular or void, 
 that constitutes no equity. The plaintiff has a plain remedy 
 at law to have the judgment set aside or vacated, and the 
 execution called in on motion, in the court where it was 
 rendered; Zacliary v. Curtis, 6 Ired. Eq. 199, cited for the 
 plaintiff, has no bearing on the question. 
 
 3. The answer is a fair, full and direct response to every 
 allegation of the bill on which the supposed equity of the 
 plaintiff is put, and must, at this stage of the proceedings, be 
 taken to be true. No equity is confessed, and no ground of 
 exception can be taken to the answer. 
 
 4. We can see no reason why judgment should not be 
 given on the injunction bond. It is true the only surety to 
 it is the son of the plaintiff, who ought to have been a party 
 to the bill, but the plaintiff can not be heard to object to the 
 bond on that account. Nor is the position tenable that judg- 
 ment can not be rendered on the bond because the injunction 
 was improvidently granted, and the judgment at law which 
 is complained of is void, for the statute is express, and applies 
 to all injunctions commanding the stay of an execution. Ch. 
 32, Sees. 14 and 17, Kev. Code, provides: "Where an injunc- 
 
412 Injunction. 
 
 tion shall be dissolved, judgment shall be rendered on the 
 bond given on obtaining the same, in the same manner as on 
 appeal bonds." This point is noticed because it was discussed 
 in the argument. 
 
 6. The original papers are sent to this court instead of 
 copies, and we find from tlie transcript that it was done by 
 consent, with leave to the Master to tax full costs. The prac- 
 tice can not be allowed. The parties had no right to consent 
 that the original papers should be taken out of tlie court be- 
 low and sent up to this court, for tlie papers were in the cus- 
 tody of the court, and the parties had no control over them. 
 Nor had the court below power, even with the consent of par- 
 ties, to send up the original papers on an appeal from an in- 
 terlocutory order, and thereby deprive itself of papers neces- 
 sary to the original cause, which was stil! pending before it, 
 and depend on this court to send the papers back, whereby it 
 would be left without any record or evidence to show how the 
 proceeding was constituted before it. So that one court or 
 the other must be without a case. The papers can not be 
 withdrawn from the ofiice of this court unless the master of 
 the court below files proper copies, nunc pro tunc. 
 
 We feel called on to add, if by the entry "with leave to 
 the master to tax full costs" it be intended that he should tax 
 costs as if copies had been made out and sent to this court, 
 snch a proceeding can not be sanctioned. 
 
 This opinion will be certified to the court below, with in- 
 structions to proceed accordingly. 
 
 Decretal order reversed. 
 Pee Cueiam. 
 
Bill v. Sierra Nevada Mining Co. 413 
 
 Bill v. The Sierra Nevada Lake Water and 
 Mining Co. 
 
 (1 DeGex', Fisher & Jones, 177, High Court of Chancery, 1859.) 
 
 » Attempt to restrain increase of sliares through foreign legislature. 
 
 A company incorporated in California was doing business there, but 
 most of its shareholders were resident in England. At a meeting of 
 the English shareholders a resolution passed authorizing the trustees to 
 take steps for increasing the preference shares to an extent not allowed 
 by the existing charter. It appeared there was no intention to create 
 preference shares except upon action of the California legislature : Held, 
 that an injunction ought not to be granted to restrain the company from 
 acting on the resolution, for that the court will not in general restrain 
 parties from applying to the legislature, whether of this or of a foreign 
 country. 
 
 This was a motion by the defendants to discharge an order 
 of Yice Chancellor Stuaet, granting an injunction to restrain 
 the defendants, the company and their officers, from increasing 
 or attempting to increase the number of Class A shares in the 
 company beyond 5,000, and from paying or authorizing or 
 sanctioning the playment of any preferential dividend on any 
 but the 5,000 sliares, and from in any manner acting upon or 
 carrying into effect a resolution of the 28th of October, 1859. 
 
 The company was incorporated in 1854, by an act of the 
 Californian legislature, its principal object being the convey- 
 ance of water by an aqueduct from Truckee Lake to Forest 
 City, and other places in California. By the act of incorpo- 
 ration it was provided that the company might, whenever it 
 was desired to increase or diminish the capital, call a meeting 
 of the shareholders by a notice, signed by at least a majority 
 of the trustees, and published for a± least four weeks in some 
 newspaper of the county where the principal place of business 
 was situate, which notice was to specify the object of the 
 meeting, the time and place at which it was to be held, and 
 the amount to which it was proposed to increase or diminish 
 the capital, and a vote of two thirds of the shareholders in 
 
 ' See Heathcote v. North Co., 2 Mac. & G. 100; Greenville v. Seymour, 
 22 N. J. Eq. 458. 
 
414 Injun,ction. 
 
 amount was to be necessary to authorize such increase. The 
 certificate of incorporation, dated the 24th of August, 1854r, 
 stated the objects of the company, and provided that its cap- 
 ital should be 2,000,000 dollars, divided into 20,000 shares; 
 tiiat the company should continue for fifty years, unless sooner 
 dissolved under the provisions of the law; that the number 
 of trustees should be in the first instance three, and that the 
 principal place of business should be at Downieville, in Sierra 
 county, California. 
 
 The shares were chiefly taken by English capitalists, and 
 the company took an ofiice in Tokemhouse Yard, London, 
 where its affairs were in reality principally carried on. The 
 capital •#as, some time after the foundation of the company, 
 legally diminished to 1,000,000 dollars in 10,000 shares. 
 
 By an agreement dated the 17th of April, 1856, made be- 
 tween all the then shareholders in the company, it was agreed 
 that the 10,000 shares should be divided into two classes, class 
 A and class 0, each consisting of 5,000 shares, and that the 
 owners of class A shares should be entitled to a preferential 
 dividend of £20 per cent., and that when the profits were suf- 
 ficient to pay the same dividend to the shareholders the 
 surplus should be divided equally. 
 
 This agreement was acted upon shortly afterward; by-laws 
 were made providing, among other things, for the election by 
 the shareholders of a committee to manage the business in 
 London. 
 
 In June, 1857, the plaintiff became a shareholder in the 
 company by purchasing thirty-five of the class shares. 
 
 On the 1st of June, 1859, at a meeting of the company, a 
 resolution was passed for converting 800 shares into A 
 shares. Tlie plaintiff filed a bill for an injunction to prevent 
 the company from carrying this resolution into effect. Tlie 
 injunction was granted in the same month, and nothing fur- 
 ther was done upon that resolution. 
 
 At tlie half-yearly meeting of shareholders held in London 
 on the 28th .of October, 1859, the following resolution was 
 passed: 
 
 " It appearing that the balance of outlay to Forest City, in- 
 cluding the Eudyard reservoir, lias exceeded the original esti- 
 mate of Mr. Eomayne by £7,000, to whicli the five extra miles 
 
Bill v. Sieeea Nevada Mining Co. 415 
 
 of canal and' branches have to be added, besides the costs of 
 the Camptonville extension, amounting to £12,000, and that 
 the conversion of the company's sliares has been a failure, 
 and that no addition has been made to the capital to cover the 
 deficiency, it was then resolved that the directors be author- 
 ized to take the necessary steps abroad for increasing the A 
 capital by a sum not exceeding £30,000, so as to perfect the 
 works, satisfy the shareholders who are wanting shares for 
 their advances, and discharge the remaining obligations of 
 the company." 
 
 The bill was filed by the plaintiff on behalf of himself and 
 all the other shareholders in class C, except such of them as 
 were defendants; and it alleged that the directors intended to 
 act on the resolution and issue new preference shares. 
 
 The plaintiff moved for an injunction. From the affidavits 
 in opposition it appeared that the defendants had no intention 
 of attempting to issue new preference shares merely by force 
 of the resolution, but that in pursuance of it instructions had 
 been sent out to take steps to procure an act of the Californian 
 legislature sanctioning an increase of the number of A shares. 
 
 Tlie vice chancellor granted the injunction as prayed, and 
 the defendants appealed. 
 
 Mr. Bacon and Mr. Eodwell, for the appellants. — We sub- 
 mit that the court has no jurisdiction to make such an order 
 as has been made by the vice chancellor, the company being 
 a foreign company dealing only with immovable property 
 situate abroad, and the appearance of tlie company, thougli 
 it would waive a mere irregularity, does not create jurisdic- 
 tion. 
 
 [The Lord Justice Tuenee. — Suppose all the capital to 
 have been subscribed here, do you say that the court would 
 not have jurisdiction to prevent the application of it to pur- 
 poses not authorized by the constitution of the company?] 
 
 "We do not dispute that the court miglit do tliat, but we say 
 that this is _a company constituted according to foreign law, 
 having its principal place of business abroad, and formed for 
 carrying out an undertaking in the same country, and that the 
 court has no jurisdiction to restrain such a company from 
 applying to the legislature of the country in which it is dom- 
 
416 iNJUNCTioiir. 
 
 iciled for a variation in the terras of its constitution. This is 
 like a bill to restrain an application to Parliament — a relief 
 which this court is not in the habit of granting — and there 
 is no difference in principle between the ordinary case of an 
 application to our Parliament and the case of an application 
 to the Californian legislature on behalf of a company circum- 
 stanced as this is. The case is very like Stevens v. /South 
 Devon Railway Oo7ivpan/y, 13 Beav. 48. 
 
 Mr. SuEEAGE (Mr. Malins with him) for the plaintiff. — 
 The question of jurisdiction is settled by the acquiescence 
 of the company in the fonner injunction. The company is, 
 for all practical purposes, an English company. The govern- 
 ing body is here, almost all the shareholders are here, and 
 almost all the important business of the company is trans- 
 acted here. To increase the preferential capital is a step not 
 authorized by the by-laws or by the act of incorporation. 
 
 [The Lord Justice Tcenee. — Could not the Californian 
 legislature authorize it?] 
 
 If it does so we must submit; we shall be content with an 
 injunction restraining the company from increasing the A 
 capital without legislative sanction. The resolution proceeds 
 on the footing that the company can do the act without any 
 other authority, 
 
 Mr. Bacon, in reply. — The evidence plainly shows that 
 there is not, and was not when the bill was tiled, any inten- 
 tion to increase the A capital without first obtaining legal 
 powers of doing so. An injunction might be granted against 
 applying the common funds for that purpose if the company 
 were about to do so, and the bill were properly framed; but 
 the bill makes no case of that nature, nor would the facts sup- 
 port snch a case, for there are no such funds, and the expenses 
 can only be met by a subscription. The relief sought is sim- 
 ply to restrain an application to the legislature, and this the 
 court will not do: Ware v. Grand Junction Waterworks 
 Compamy, 2 R. & Myl. 470. 
 
 The Lord Justice Knight Beuoe. — The domicile, purpose 
 and objects of the Sierra Nevada Company are such that in 
 my judgment the court ought not to act against the defend- 
 ants for the purpose cf injunction in such a case as the pros- 
 
Bill v. Sierea Nevada Mining Co. 417 
 
 ent, at least on an interlocntory application. I think that the 
 injunction and order shonld be discharged, and the costs be- 
 fore the vice chancellor, and here, be made costs in the cause. 
 
 The Lord Justice Tuenee. 
 
 On the opening of this case I thono;ht it might involve 
 questions of considerable importance, but after having ht-ard 
 the argument I do not think that it does. I do not consider 
 it necessary to enter into the question of jurisdiction or into 
 the question as to the power of the shareholders in this coun- 
 try to direct the trustees to do an act not authorized by the 
 powers vested in the trustees. All that tlie shareholders here 
 professed to authorize to be done is that the directors shall 
 take the necessary steps for increasing the A capital to an ex- 
 tent not exceeding £30,000. Now the necessary steps to 
 be taken must be steps to be taken througlij tiie medium 
 of the legislature of California, or through tlie medium 
 of the trustees in California. It is not sugarested that 
 any proceeding by the trustees in California could en- 
 able the act to be done, which is sought to be prohibited; 
 indeed the plaintiff's argument is that, though the act of 
 the Oalifornian legislature gives power to increase the capi- 
 tal, it does not give power to increase it for the benefit of 
 one class of shareholders at the expense of another. His 
 case is, that they can not do the act, and the evidence shows 
 that they do not intend to do it otherwise than by means of 
 an application to the Californian legislature. The case, there- 
 fore, which we have to consider is, whether there is any equity 
 upon this bill to restrain the trustees from applying to the 
 Californian legislature to enable them to carry out what has 
 been resolved upon, and I can not see any. 
 
 It is not the habit of this court to restrain persons from 
 applying to the legislature of this country, and that being 
 so, I do not see any principle which can justify the court in 
 interfering to restrain them from applying to the legislature 
 of a foreign country. It is said that they ought not to be al- 
 lowed to do so at the expense of the company. I agree -there 
 may be an equity to restrain them from applying the funds 
 of the company in defraying the expenses of the intended ap,- 
 
 VOL. Til.— 27 
 
418 Injunction. 
 
 plication; but there is no snch case before us. If the plaint- 
 iff means to raise this question, he should have amended his 
 bill when he found that the intention was to apply to the 
 Californian legislature, and sought for an injunction to re- 
 strain the trustees from snch an application of the funds. I 
 am of opinion that the injunction should be dissolved, and 
 the costs in both courts be made costs in the cause. 
 
 ElDRIDGE ET AL. v. "WRfGHT ET AI,. 
 
 (15 California, 89. Supreme Court, 1860.) 
 
 ' Application to Supreme Court to enjoin pending tlie appeal. PlaintifFg 
 being about to appeal from an order dissolving a preliminary injunction, 
 the judge below made an order that upon the perfecting of the appeal 
 the order granting the injunction should revive and continue in force. 
 Plaintiffs perfected the appeal and applied to the Supreme Court for an 
 injunction pending the appeal on the ground that defendants were dis- 
 regarding the reviving order: Held, that the application be denied 
 because the order reviving the injunction was ample to protect the 
 plaintiffs until the appeal could be heard, or the injunction be dissolved 
 by some competent authority. 
 
 Appeal from the Third District. 
 
 The suit is to obtain a perpetual injunction restraining de- 
 fendants from obstructing a certain road leading to the quick- 
 silver mines of plaintiffs. The complaint avers plaintiffs to 
 be owners of a mine situated on a portion of a rancho, the 
 title to which is derived from tlie Mexican government; that 
 by conveyances from the grantee, plaintiflFs have the right of 
 way over all portions of said rancho; that defendants are 
 working another mine on the same rancho; that the only 
 practicable road leading from plaintiffs' mine to the main 
 highway goes by the mine defendants are working, and that 
 defendants, to injure plaintiffs, wantonly obstruct said road, 
 by putting gates across it and preventing all ingress and 
 egress. The complaint avers the great value of the mine, 
 large number of laborers employed, and that said obstructions 
 are ruinous, etc. 
 
 ^ Swift V. Sheppard, 1 West Coast R. 133; Merced Co. v. Fremont, 7 
 M. R. 309. 
 
Slade v. 3ullivan. 419 
 
 Plaintiffs obtained a preliminary injunction restraining the 
 obstruction of the road which, upon answer being filed, was 
 dissolved. Plaintiffs being about to appeal from the order 
 dissolving the injunction, the judge below naade an order that, 
 upon such appeal being perfected by filing a bond, etc., as re- 
 quired by him, the order granting the injunction should be 
 revived and cflntinuein force. Plaintiffs perfected the appeal 
 and applied to the Supreme Court for an injunction pending 
 the appeal, on the ground that defendants were disregarding 
 said reviving order, and obstructing, to the ruin of plaintiffs. 
 The application was made on affidavit of, the facts, the trans- 
 cript on appeal being filed. 
 
 Wm. T. Wallace, for the application. 
 
 Baldwin, J., delivered the opinion of the court. Field, 
 G. J., and Cope, J., concurring. 
 
 Application for injunction. We deny the application. We 
 see no necessity for this application, if we had the power to 
 grant it, for the remedy of the plaintiff under the order re- 
 viving the injunction pending the appeal is ample to protect 
 the plaintiff until the appeal can be heard, or the injunction 
 be dissolved by some competent authority. 
 
 Slade v. Sttlmvak et al. 
 
 (17 California, 102. Supreme Court, 1860.) 
 
 ' A prayer for injunction is addressed to the discretion of the court, 
 
 and upon the facts of the case the discretion of the court below having 
 refused to grant the writ, the damage threatened not great and the in- 
 solvency of the defendants denied, the action of the court below was 
 approved 
 
 Appeal from the Eleventh District. 
 
 The record consists, substantially, of the complaint, answer 
 and findings of the court — there being no evidence in it. 
 
 ^HilJer'v. Collins, 63 Cal. 235j Hicks v. Compton, 18 Cal. 206; Eeal 
 del Monte Co. v. Pond, 7 M. R. 452. 
 
420 Injunction. 
 
 The complaint avers tliat in 1854, one Stephens was the 
 owner and in possession of a tract of laud near Auburn, 
 Placer county, containing about four hundred and twenty 
 acres, known as a milk ranch, andyerected thereon a wood house 
 and about one hundred and fifty feet easterly from it, barns 
 and sheds, at an expense of $3,000; that about two hundred 
 feet in front of the house and barns is a wagon toad, between 
 which and the house and barns, and one hundred and fifty 
 'feet in front of them, runs a ravine, in the bed of which, and 
 opposite to, and a few rods above the- barn, are several natural 
 springs of pure water, from which, at all seasons of tlie year, 
 flow from two to four inches of vi^ater, usual ditch 'measure- 
 ment; that before 1856, and about 1854, Stephens had fenced 
 in a garden containing about one quarter of an acre of land 
 lying southerly of, and about one hundred feet from the house, 
 and had constructed a dam sixty feet long, three feet high, 
 costing one hundred dollars, across tile ravine below the 
 springs, and fifty feet above the garden, appropriating the 
 waters of the springs to his own use for irrigating the garden; 
 that Stephens had also at the same time erected in the ravine, 
 in front of the barns and two hundred feet from the house, and 
 one hundred feet above the dam, a milk house, costing two 
 hundred dollars, and had so dug out said springs that their 
 waters flowed under, above and around the milk house; that 
 the barns, milk house, etc., were constructed for carrying on 
 the milk business, in which Stephens was engaged, and the 
 waters of the spring were used for irrigating the garden which 
 he cultivated, and also for household purposes. The com- 
 plaint then avers that in the spring of 1859 plaintiff having 
 acquired all the rights of Stephens by purchase, entered into 
 possession of the premises, and has used the same ever since 
 for the purposes for which they were erected, and as above set 
 forth, and occupied the house with his family as a homestead; 
 that continuously from the time Stephens put up these im- 
 provements to the present time, the premises have been occu- 
 pied and used as above by Stephens or his successors. 
 
 The complaint further avers that in March, 1860, defend- 
 ants wrongfully, etc., entered upon the inclosure around and 
 above the milk house, and excavated a ditch across the same, 
 of capacity sufficient to carry thirty inches of water, usual 
 
Slade v. Sullivan. 421 
 
 ditch measurement, and began digging up the earth twenty 
 leet below the dam, and placed sluice boxes across the in- 
 closnre, and avowed their intention to dig away the ground 
 where the milk house stands" and where the springs take their 
 rise, and to dig up the bed of the ravine in front of said 
 buildings; that defendants are now engaged in said acts, 
 and threaten to continue so to do, and if this be permitted, 
 plaintiff's dam, milk house and water rights will be totally 
 destroyed, and the earth in the bed of the ravine in front 
 of plaintiff's buildings will be so dng up and washed 
 away as to make a deep ditch, which will prevent plaintiff 
 from crossing the ravine with his animals and wagons 
 from the road to his house, barns, etc., and materially dimin- 
 ish the value of his said buildings, rendering it impossible to 
 use and enjoy them as heretofore, to irrigate his garden, in 
 which are growing a large number of vegetables and fruit 
 trees; that said ditch and sluice boxes are nnisances, and ob- 
 structions to the free use of plaintiff 's property. 
 
 The complaint further avers that for two weeks past de,- 
 fendants have been digging the bed of the ravine about two 
 hundred feet above the milk house, which has caused the mud 
 and sediment to flow down into and around the springs and 
 milk house, so as to render the water unfit for use for house- 
 hold purposes and for irrigation, and that they threaten to 
 continue these acts; that defendants are irresponsible and 
 unable to respond in damages, and that the dam, milk house 
 and water rights are worth $1,000, and that he has sustained 
 one hundred dollars damages. Prayer for one hundred dol- 
 lars damages and perpetual injnnction. 
 
 The answer denies all these allegations — though most of the 
 denials are, that defendants " have no knowledge, etc., and 
 therefore deny" — and then sets up that the premises are ex- 
 clusively public mineral lands of the United States, and that 
 defendants, as miners, have entered upon them and are work- 
 ing them in a reasonable and proper manner, etc., for the 
 purposes of mining, and are not interfering unjustly with any 
 of plaintiff's rights. 
 
 The cause was tried by the court, and the findings were, 
 Ist, that in 1853 Stephens purchased the ranch and took 
 possession thereof, erected the buildings, dam and milk 
 
422 Injtjnctioi]'. 
 
 Iiouse, dug out the springB, and fenced the garden, etc., 
 as alleged in the complaint, and that his improvements 
 were worth $1,000; 2d, that the relative position of these 
 buildings, dam, etc., were as stated in complaint and 
 that there was a road as stated; 3d, that Stejihens occupied 
 and used the premises as stated in the complaint until 
 1856, when he transferred them to B. fe B., who occupied and 
 used them in the same way until the spring of 1859, when 
 they transferred the possession to plaintiff, who has since 
 occupied the said buildings as a homestead and used the prop- 
 erty for the purposes stated; that the milk house has been 
 kept open, and stock can and have run in and out of it, and 
 that it is in a neglected and bad condition; 4th, that plaintiff 
 had fruit trees growing in the garden, and raised vegetables 
 for farming use; 5th, that the lands are public mineral lands; 
 6th, that in March, 1860, defendants located the ravine from 
 below the dam, milk house and springs, to about one hundred 
 and fifty yards above the springs, for mining purposes, and 
 began to work and mine the same, and avowed their intention 
 and right to do so, notwithstanding it might injure the milk 
 house, springs, etc.; that they worked the ground in the usual 
 way and in a- reasonable manner, and that plaintiff has sus- 
 tained one dollar damages; 7th, that if defendants mine said 
 ravine, they will dig up the same to the depth of several feet, 
 and will destroy said dam and milk liouse, and render it 
 necessary for plaintiff to build a bridge to cross tlie ravine 
 with animals and wagons from his buildings to the road; that 
 the dam, if dug away, could be rebuilt at small expense, and 
 the water still be turned upon the garden. 
 
 The court found, as a conclusion of law, that defendants 
 were entitled to judgment for costs, and that the one dollar 
 da,mages is absque injuria. Plaintiff appeals. 
 
 Ttjttle & riiLLTEE, for appellant, cited Gillan v. HutcTiin- 
 son, 16 Cal. 153; titzgcralAs. Urton, 6 Id. 308; Burdge v. 
 Underwood, 6 Id. 45. 
 
 Htggins & HiGGiNS, for respondents, cited 5 Cal. 36; Id. 
 97; Id. S08',Jiurdge v. Smith, 14 Id. 380; Martin v. Browner, 
 11 Id. 12; Clark v. Duval, 15 Id. 85. 
 
Slade v. Sullivan-. 423 
 
 Cope, J., delivered the opinion of the court, Field, C. J., 
 and Baldwin, J., concurring. 
 
 We do not see upon what ground we could interfere with 
 the decision in this case. The prayer for an injnnction was 
 addi'essed to the sound discretion of the court, and we can not 
 perceive that there was any abuse of discretion in refusing to 
 grant it. The case is by no means free from embarrassment, 
 but we should be in danger of doing great injustice if we 
 were to undertake to control the exercise of a discretionary 
 power where it is not perfectly apparent that some provision 
 of law has been violated. It may, in many cases, be a ques- 
 tion of great difficult}' as to how far the courts should go in 
 extending protection of this character to improvements upon 
 the public mineral lands as against miners, and in such cases 
 the revisionary authority of this court should be exercised 
 with the utmost caution. In the present case, it is evident 
 that tlie plaintiff will sustain but little damage from the op- 
 erations of the defendants, and that this damage njay be easily 
 repaired. The " milk house," which it is claimed will be de- 
 stroyed, is an old, dilapidated building, surrounded by no in- 
 closure, and for all purposes of use, neglected and abandoned . 
 ,The dam used by the plaintiff in the irrigation of his garden 
 may be replaced at a trifling expense, and no injni-y to the 
 garden will necessarily result from its destruction. The dim- 
 inution in the value of the premises fi-om the working of the 
 ravine in front of the dwelling house is a mere matter of spec- 
 ulation, and the court below having passed upon it, we are not 
 disposed to interfere. So far as the right of way from the house 
 to the road is concerned, no steps have been taken to secure it 
 against interruption, and the plaintiff has, therefore, no cause 
 of complaint. He might have avoided any difliculty in this 
 respect, by complying with the provisions of the act concern- 
 ing roads and highways. It does not appear that any of the 
 injuries, for which, if committed, he will be entitled to re- 
 cover; may not be compensated in damages, and under the 
 circumstances we can not undertake to say that an injunction 
 was improperly refused. It is true the complaint charges 
 that the defendants are insolvent; but this is denied in the 
 answer, and the record does not show that any evidence was 
 introduced upon the subject. Judgment afirmed. 
 
424 Injunction. 
 
 "Brennan et al, v. Gastoit et al. 
 
 (17 California, 372. Supreme Court, 1861.) 
 
 Practice in connection witli trespass suit. Plaintiifs sued for damages 
 by reason of alleged trespasses upon a certain portion of quartz mining 
 claims, averred in the complaint to be the property and in the posses- 
 sion of the plaintiffs, and alleging further, the insolvency of defendants, 
 asking an injunction against further trespasses, which was granted. 
 The defendants denied all the allegations of the complaint, and averred 
 ownership. The jury found generally for the defendants, but the court 
 below refused to dissolve the injunction: Held, 1. That the action 
 amounted to an action of trespass, with an injunction in aid; 2. That 
 the action having failed, the injunction should go with it. 
 
 An ancillary writ should abate with the suit which it supported, plamt- 
 iffs having failed to prove that which would have been necessary to 
 maintain their suit; even where the action need not be considered as 
 deciding the question of title, nor as debarring plaintiff from pro- 
 ceeding anew for original relief. 
 
 Appeal from the Ninth District. 
 
 Plaintiffs filed their complaint, alleging that in lN"ovemher, 
 1859, they found, located, and took up fonr mining claims, in 
 Shasta county; that they complied with the mining rules and 
 regulations existing in the district, and took possession of 
 and commenced labor upon the said claims; that defendants 
 subsequently entered upon and took possession of a portion 
 of the claims, and committed various trespasses by digging 
 and sinking shafts, mining tunnels, removing quartz rock, 
 washing surface dirt, etc. ; and that defendants were insolvent, 
 and asked for an injunction restraining defendants, etc. The 
 judge granted the injunction. 
 
 Defendants in their answer denied specifically every allega- 
 tion in plaintiffs' complaint, and set up that the mining claims 
 upon wliich the alleged trespasses were committed belonged 
 to them. The case was tried before a jury; verdict for defend- 
 ants, and judgment rendered in their favor for costs. Subse- 
 quently defendants moved to amend the judgment by adding 
 thereto the words "and that the injunction in this case here- 
 
 1 S. C. post, p. 426. 
 
Bkenj^an v. Gaston. 425 
 
 tofore granted be, and the same is hereby dissolved." This 
 motion was denied; but tlie injunction was so modified as to 
 permit defendants to work tlie surface diggings as set out in 
 their answer. 
 
 From the refusal of the judge to amend the judgment as 
 asked for, and from tlie order modifying and perpetuating the 
 injunction, defendants appeal. 
 
 MoNSON & SuNDEKLAND, for appellants. 
 
 The verdict of the jury entitled appellants to a dismissal 
 of the action and to a dissolution of the injunction: Hoyt 
 V. Carter, 7 How. Prac. K. 140; Butler et al. v. Sinith, 2 
 Kelly, 265. 
 
 E. T. Speaguk, for respondents. 
 
 Baldwin, J., delivered the opinion of the court, Cope, J., 
 
 In this case plaintiffs filed their complaint asserting their 
 right to certain mining claims, and complaining of the defend- 
 ants' unlawful intrusion upon them. An injunction was 
 granted restraining certain acts of trespass done and threat- 
 ened by defendants, upon an allegation, among others, of the 
 insolvency of tlie defendants. The case was tried, and a ver- 
 dict found for the defendants. Judgment was entered in ac- 
 cordance with the verdict. After the rendition of the verdict 
 and judgment, defendants moved for a dissolution of the in- 
 junction, but the court refused to grant the motion as made, 
 and made an order modifying the injunction order so as to 
 permit the defendants to work the surface diggings, as set out 
 in their answer. From this action of the court, refusing 
 to dissolve the injunction unconditionally, the defendants ap- 
 peal. 
 
 We regard the action substantially as an action of trespass 
 and the injunction as an order in aid of the action. We can 
 not perceive any reason for continuing the injunction after the 
 main suit has been disposed of. It may be very true tiiat the 
 judgment in trespass does not necessarily determine the title 
 
426 Injunction". 
 
 to the property alleged to be trespassed upon, when that prop- 
 erty is real estate; and it may also be true that, upon a proper 
 state of facts, an injunction may be a proper remedy upon a 
 bill in equity, as an original proceeding, to enjoin acts of tres- 
 pass and waste where the injury is irreparable and goes to tiia 
 destruction of the inheritance. But this does not affect the 
 question here. The plaintiffs, upon a trial so far, have failed 
 to show that they have any cause of action against the defend- 
 ants; and having failed in their action, after trial can not 
 claim to retain an injunction which was merely ancillary to 
 that action, and a portion of the remedy for its successful 
 prosecution. If the defendants have, as argued by the coun- 
 sel for respondents, succeeded only upon the ground that they 
 were entitled to a qualified possession of the premises — that 
 is, to work a portion of the ground as surface diggings — and 
 if the verdict and judgment only affirm this right, and the 
 plaintiffs have the right to the possession of their quartz 
 claims and the land necessary to work them, then any en- 
 croachment by the defendants hereafter upon these rights of 
 the plaintiffs can be protected and redressed in due course of 
 law, notwithstanding the verdict and judgment. But as tjiis 
 case is presented to us, we can only regard this as an action of 
 trespass — which is a legal action — and an injunction ancillary 
 to it, and the action of trespass having been decided, the or- 
 der made in the course of the proceeding falls with the prin- 
 cipal matter of which it is an accessory. 
 
 The case is remanded that the proper entry may be made 
 pursuant to this opinion. 
 
 'Brennan et al. v. Gaston et al. 
 
 (17 California, 375. Supreme Court, 1861.) 
 
 Ex parte orrter changing possession. A judge at chambers has no power 
 by ex parte oi-der to induct defendants into possession of mining ground 
 held by complainants, although after general verdict for the defend- 
 ants. 
 
 Possession of tlie snbject of controversy is property. 
 
 Proceedings in eonteuipt are affected by the invalidity of the original 
 orders. 
 
 >S. C, 7M.R. 424. 
 
Bkennan v. GASTOif. 427 
 
 A.ppeal from the Ninth District. 
 
 Action by plaintiffs to recover damages for alleged tres- 
 passes committed by defendants upon certain quartz mining 
 claims, alleged to be the property and in possession of plaint- 
 iffs; and also to perpetually enjoin defendants from future 
 trespasses. Injunction granted. 
 
 Defendants answered, denying specifically all the allega- 
 tions of the complaint, and setting up ownership of certain 
 mining grounds, described as five hundred and fifty feet by 
 three hundred feet. The case was tried at the November 
 term of the Ninth Judicial District Court for the county 
 of Shasta, 1860, before a jury; and on the sixteenth day of 
 November, 1860, upon a general verdict of the jury for the 
 defendants, the court rendered a judgment against plaintiffs 
 for costs. 
 
 The defendants subsequently, on the fifth day of Decem- 
 ber, 1860, moved the court to amend the judgment of the 
 sixteenth of November, by adding to the judgment the words 
 "and that the injunction in this case heretofore granted be, 
 and the same is hereby dissolved;" wliich motion was over- 
 ruled, but the judgment was amended to the extent of modi- 
 fying the injunction so as to permit the defendants to work 
 their surface diggings, as set out in their answer. 
 
 The court finally adjourned for the term on the seventh 
 day of December, 1 860. An appeal was taken by defendants, 
 and perfected by filing the requisite notice and bond on the 
 twenty- seventh day of December, 1860. On the twenty- 
 eighth day of December, 1860, defendants filed another brfnd 
 in the sum of $1,500, and the judge of said court, at cham- 
 bers, made an ex pa/rte order directing and requiring the 
 plaintiffs to yield the possession of the ground described in 
 defendants' answer, to defendants. This order was, on the 
 same day, by the sheriff, served on one of the plaintiffs, who 
 refused to obey it. 
 
 On the twenty-ninth of December, 1860, upon application 
 of defendants, tiie judge made an order directing the plaint- 
 iffs and several other persons named in the application to be 
 summoned to appear on the third of January, 1861, before 
 the judge, at chambers, to show cause why they should not 
 be punisiied for contempt. 
 
428 Injunction. 
 
 To the snmmons plaintiffs appeared on the third of JTanu- 
 ary, and filed their answer, denying the authority and juris- 
 diction of tlie judge to make tlie order of the twenty-eighth 
 of December, 1860, or any subsequent orders. Afterward, 
 January 4, 1861, the judge made an order re-affiriuing the 
 order of December 18, 1860. 
 
 Plaintiffs appeal from the order of December 28, 1860, and 
 from the order of January 4, 1861. 
 
 R. T. Speague, for appellants. 
 
 The judge erred in making the order of the twenty-eighth 
 of December, 1860, and all other orders made in the case 
 subsequent to the adjournment of the court for the term, on 
 the seventh of December, 1860. He has no power or juris- 
 diction to make such orders: Morrison v. Dayman c& West, 
 3 Cal. 255; Carpenter v. Rart, 5 Id. 406; RoU v. Rohh, 6 
 Id. 21; Shaw v. McGregor, 8 Id. 521; Bryan v. Berry, Id. 
 130; 2d Eden on Injunctions, 3d ed, 425, note 1; Whipley v. 
 Dewey, 17 Cal. 314. 
 
 A. C. MoNSON, for respondents, argued the case orally. 
 
 Baldwin, J., delivered the opinion of the court, Cope, J., 
 concurring. 
 
 The orders in this case were irregular. The court had no 
 power to make an ex parte order for the restitution of the 
 possession or the induction of the defendants into the posses- 
 sion of the premises in question. This was, in effect, both to 
 decide the wliole controversy m Umine, and to execute the 
 judgment by the compendious process of an ex parte order, 
 The judge in chambers could not in this way act upon the 
 matter in controversy; for a possession of the subject of con- 
 troversy is property, and can not be disposed of except in due 
 course of law; but there is no statute or rule of law of which 
 we are aware which authorizes this act. The subsequent or- 
 ders dependent upon this partake of its invalidity. 
 
 Orders appealed from reversed. 
 
Daubenspeck v. Gkeak, 429 
 
 Daitbenspeck et al. v. Geeae et al.» 
 
 (18 California, 443. Supreme Court, 1861.) 
 
 '^Destrnction of fruit trees— Perpetual injunction after snccessiTC Ter- 
 diets at law. Plaintiffs took up land under the Possessory Act of Cal- 
 ifornia, inclosed it and planted it with fruit trees. Defendants entered 
 upon the premises, dug a dilch thereon for mining purposes, and washed 
 away and destroyed the trees. Plaintiffs sued for damages, and prayed 
 a perpetual injunction. Verdict, " We, the jury, award the plaintiffs 
 forty-two dollars damages." The court rendered judgment accordingly, 
 but refused to make the injunction perpetual, although the plaintiffs 
 had recovered a similar verdict in a previous suit: Held, that the ver- 
 dict was conclusive of the rights of the parties, and the only remedy 
 from which the plaintiffs could derive adequate relief was by injunction. 
 The injury was irreparable in its nature, and destructive of interests for 
 which no equivalent could be returned. 
 
 Appeal from the Fifth District. 
 
 Injunction to restrain defendants from' entering within 
 pkintiifs' inclosnre and digging np and washing away fruit 
 trees, etc., and for damages. 
 
 Plaintiffs, some eight years since, took np a tract of about 
 two hundred and twelve acres of land under the Possessory 
 Act of this State, inclosed it and planted it with fruit trees. 
 The complaint avers, in substance, that plaintiffs and those 
 under whom they claim now are and from the year 1852 have 
 'been the owners and in possession of a certain tract of land 
 about two hundred and forty feet long by one hundred and 
 sixty feet wide; that in 1857 they planted on said tract one 
 hundred and sixteen apple and peach trees of two years' 
 growth, which are now fruit-bearing trees; that plaintiffs took 
 up, inclosed and hold said land under the Possessory Act of 
 this State for agricultural purposes; that there is on the land 
 a frame house, the residence of one of the plaintiffs, iifteen 
 ornamental trees and a large quantity of shrubbery, which 
 are permanent and valuable improvements; that defendants 
 on the twenty-first of December, 1860, and at other times, 
 
 ^Woodruff Y. North BJoomfield Co., 1 West C. R. 18.S; Brown x. Ashley, 
 16 Nev, 312. 
 
480 Injunction. 
 
 entered npon said premises and dng a ditcli thereon for 
 mining purposes, thus washing away and destroying the trees, 
 and that they threatened to continue so to do; that these acts if 
 continued will cause irreparable injury, etc.; that defendants 
 are insolvent; that plaintiffs have already sued defendants for 
 similar trespasses and obtained judgment. Prayer for per- 
 petual injunction, and for damages. 
 
 The answer denies insolvency, and then substantially sets 
 up that plaintiffs hold as agriculturists only under the Pos- 
 sessory Act, and that defendants, being miners, have a right 
 to' enter for mining purposes; that they have paid the judg- 
 ment against them for the value of trees heretofore destroyed, 
 and have offered and are ready to pay the value of all trees 
 destroyed, which they put at three dollars per tree. 
 
 The case was tried before a jury. The evidence is not in 
 the record, but the agreed statement of facts is as follows, to 
 ■wit: 
 
 Plaintiffs, some eight years since, took up a possessory claim 
 under the laws of this State, containing two hundred and 
 twelve acres on the mineral lands, fenced and inclosed the 
 same for the purposes of a fruit orchard, and planted the 
 same with fruit trees. 
 
 Defendants, being miners, about four years since took up a 
 mining claim inside this inclosure, consisting of a piece of 
 ground about two hundred feet long by one hundred and 
 thirty feet wide, containing about one hundred and thirteen 
 of these fruit trees, most of them bearing fruit, which was 
 sold by plaintiffs. Defendants having destroyed some of 
 these trees in their mining operations, plaintiffs began suit 
 against them, obtained a temporary injunction, and subse- 
 quently a judgment fof the sum of forty-two dollars, as the 
 value of the trees destroyed. The court refused to make the 
 injunction perpetual. In pursuing their mining operations, 
 defendants again dug up and destroyed several other trees 
 growing on the same piece of ground, having previously ten- 
 dered to plaintiffs the value of the trees they were about to 
 destroy, which tender plaintiffs declined to accept, and the 
 money was deposited in court. Plaintiffs again brought suit, 
 and obtained another temporary injunction. The verdict on 
 trial was: "We, the jury, award the plaintiffs forty-two dol- 
 
Daubenspeck v. Grear. 431 
 
 lars damages." Judgment accordingly. PlaintijBfs then 
 moved tlie court on the pleadings, the foregoing facts and 
 judgment, to make the injunction perpetual against digging 
 up the trees. Motion denied, and an order made refusing to 
 continue the injunction. From which refusal and order 
 plaintiffs appeal. 
 
 H. P. Baebee and C. Doeset, for appellants. 
 
 H. 0. & "W. H. Beattt, for respondents. 
 
 Cope, J., delivered the opinion of the court, Field, 0. J., 
 and Baldwin, J., concurring. 
 
 There is no doubt that the plaintiffs are entitled to the 
 equitable relief prayed for. The verdict is conclusive of the 
 rights of the parties, and the only remedy from which the 
 plfiintiffs can derive adequate relief is by injunction. They 
 are threatened with injuries which must, if committed, result 
 in the destruction of their property, and it is the duty of the 
 courts in such cases to interpose and prevent the perpetra- 
 tion of the injurious acts. We can hardly conceive of a more 
 appropriate case than the present for the administration of 
 this species of justice; the mischief against which the plaint- 
 iffs seek protection is irreparable in its nature, and destruc- 
 tive of interests for which no equivalent can bo returned. 
 Tlie fact that the defendants are willing to pay for the prop- 
 erty is immaterial, for there are no means of determining 
 whether the value of the property in money would compensate 
 the plaintiffs for its destruction. It may possess a value to 
 them which no other person would place upon it; and there 
 is neither justice nor equity in refusing to protect them in the 
 enjoyment of it, merely because they may possibly recover 
 what others may deem an equivalent in money. The nature 
 of the property, which consists of fruit trees, ornamental 
 shrubbery, etc., gives them a peculiar claim to this protec- 
 tion. ' 
 
 The order appealed frotn is reversed, and the cause re- 
 manded for a judgment in accordance with this opinion. 
 
 Iteversed. 
 
432 Injunction. 
 
 GiLLETT V. TrEGANZA ET AX. 
 (13 Wisconsin, 472. Supreme Court, 1861.) 
 
 Holder of eqnitable title, when not entitled to injnnction to stay 
 
 waste. A died intestate in possession of a certain tract of laml belong- 
 ing to the United States, -which he claimed as mineral land. Afterward, 
 in 1854, B purchased of the United States said tract and others claimed 
 as mineral lands, under an arrangement with the respective claimants 
 that he should take the title in his own name; that each should furnish 
 money to pay for the land claimed by him, and that B shou'd convey to 
 each. B purchased the tract in question with money of A's estate, fur- 
 nished for that purpose by C, the administrator (who was also one of 
 the heirs), and in 1856 conveyed said tract to C, as administrator. One 
 of the heirs having obtained from six of his co-heirs conveyances of 
 their interests in said land was, upon petition to the county court of the 
 county where the land is situate, adjudged to be the owner of seven 
 elevenths of the land, which undivided seven elevenths were by said 
 decree assigned to him. The last named heir brought suit to recover 
 possession of his interest in the land, and prayed for a temporary in- 
 junction to restrain the defendants from digging and committing waste 
 upon the said tract during the pendency of the suit. The injunction 
 was granted, but afterward on motion of defendants was dissolved, and 
 the plaintiff appealed from this order: Held, that the lepal title was in 
 C, and not in the heira, and that as it appeared from the complaint that 
 the plaintiff had only an equitable title, and that no final judgmpnt in 
 his favor could be had, he was not entitled to the temporary mjunction. 
 
 Waste and ejectment, being legal remedies, can only be maintained by 
 the owner of the legal title— not by the ceshii que trust. 
 
 Variance— Cestni qne trust sning as if he held the fee. Although the 
 equitable owner may be entitled to have the waste of his land enjoined, 
 such relief can not be granted in an action where he claims to hold the 
 legal title and proves only an equitable estate. 
 
 Prayer determines nature of action under code. In actions brought 
 since the adoption of the code, it is a general rule that the nature of 
 the action is to be determined by the prayer for relief; and this rule 
 may be safely adopted in cases of doubt. 
 
 Appeal from the Circuit Court for La Fayette Coanty. 
 
 The facts alleged in this case are in substance as follows: In 
 1848 oneBenoni K. Gillett died intestate, leaving the plaintiff, 
 William W. Gillett, witii eight brothers and two sisters, his 
 only heiro at law. At the time of his death snid Benoni was in 
 
GiLLETT V. Tkeganza. 433 
 
 possession of and claimed as mineral lands the whole of the 
 tract in question, the title to the same being in the United 
 States. In 1852 Philo Gillett was duly appointed administra- 
 tor Ae bonis non of said Benoni. In 1854 the tract in question, 
 aiid others claimed as mineral lands, were offered for sale by the 
 United States government, and one Crawford became the 
 purchaser and took tlie title thereto, under an arrangement 
 with the claimants that each of them should furnish sufficient 
 money to pay for the land claimed by him, and that Crawford 
 should afterward convey to each the land by him claimed. 
 Philo Gillett furnished Crkwford the money to pay for the 
 tract in controversy out of moneys belonging to said estate. 
 In 1856 Crawford conveyed said tract to Pliilo Gillett as such 
 administrator^ and the complaint alleges that said Philo 
 thereby became possessed of the legal title in trust for the 
 heirs of said Benoni. The plaintiff, in 1854, purchased the 
 shares of said estate owned by six of the other heirs. In 1857 
 the County Court of La Fayette county, on petition of the 
 plaintiff, made an order declaring him to be the owner by 
 purchase of six elevenths, and by inlieritance of one eleventh, 
 of said estate, including the tract in controversy, and that the 
 undivided seven elevenths of the same were thereby assigned 
 to him^ On the 15th of March, 1858, the defendants were in 
 possessioji of a portion of said tract and were digging and 
 committing waste tiiereon; and the plaintiff" on that day 
 caused a written demand to be served on them, requiring them 
 to qnit.digging, etc., but they still continued, at the time of 
 the commencement of this action, to unjustly hold possession 
 of the premises and commit waste thereon. Subsequently to 
 this demand the plaintiff purchased the interest of another of 
 the heirs in said land. In May, 1860, the plaintiff served 
 upon the defendants another deniand an,d notice similar to the 
 above. The complaint demanded that the defendants mi^ht 
 be restrained from further digging on any part of said prem- 
 ises, and from removing any ore or mineral therefrom, or in 
 any manner interfering therewith, until theftirther order of 
 the court, and that the plaintiff might recover from the de- 
 fendants the undivided-eight elevenths of said piece of land 
 and all damages by him sustained, by occasion of the prem- 
 ises. 
 
 VOL VII.— 28 
 
434 Injunction. 
 
 The county jndge of La Fayette connty granted a temporary 
 injunction according to the prayer of the complaint. The 
 defendants demurred to the complaint on the ground that it 
 showed the legal title to the land in question to be in Philo 
 Gillett and not in the plaintiff, and that it did not state facts 
 sufficient to constitute a cause of action. Afterward the 
 circuit court, on motion of the defendants, made an order 
 dissolving said injunction, from which order the plaintiff ap- 
 pealed. 
 
 Sleepee & NoETon, for appellant, made the following, 
 among other points: 1. The purchase with trust funds, by 
 the administrator de honw non, and the conveyance to him as 
 administrator, created the relation of trustee and cestui que 
 trusft, and the statute of usee and trusts executed in eo in- 
 stanti, and vested in each of the cesl/iiis que trust, " a legal 
 right, cognizable as such in the courts of law": R. S. 1849, 
 Chap. 57, Sees. 1 to 9, and Chap. 69, Sees. 12-15; In the mat- 
 ter of Dekay, i Paige, 403. 2. Whether this be so or not, 
 the order of the county court assigning seven elevenths of 
 this land to the plaintiff, not only declared the title to be in 
 him, but vested in him at once the right of possession as 
 against the administrator; and as against these defendants no 
 such decree was necessary, unless they showed that they were 
 in possession under the administrator. 
 
 Ceawtoed & Simpson, for respondents. No argument on 
 file. 
 
 By the Court, DrxoN, 0. J. 
 
 If we could concede that the appellant's counsel are correct 
 ir^ their position that the facts stated in the complaint show 
 the legal title of the land in question to be in the appellant, 
 it might then be unnecessary for us to inquire into the true 
 nature and object of the present action. For, if that position 
 were correct, such inquiry would be immaterial, inasmuch as 
 the restraining of the commission and continuance of the 
 acts of waste of which complaint is made, pending the liti- 
 gation, would be an appropriate means of relief, whatever 
 
GiLLETT V. Tkeganza. 435 
 
 might be the particular form of the action. If it were an 
 action of waste, it conld be properly granted under section 7 
 of chapter 143 of the Revised Statntes, or nrider section 2 of 
 chapter 129; if an action for the recovery of land, under the 
 latter section also. If it were a proceeding by the party ben- 
 eficially interested, addressed to the equitable powers of the 
 conrt, asking its aid to st&,y and prevent the commission of 
 further acts of waste or injuries permanently affecting the 
 freehold, it might then be granted by virtue of the general au- 
 thority of a court of equity, or under the provisions of the 
 last named section. But since we can not agree with the 
 counsel in saying that the complaint shows that the legal title 
 is in the plaintiff, it becomes important in forming an opin- 
 ion upon the correctness of the order of the circuit court dis- 
 solving the temporary injunction, to consider and determine 
 the kind of action which he has brought. For, in this view 
 of the case, the equitable proceeding is the only one open to 
 him. The actions of waste and ejeotinent, being legal reme- 
 dies, must be brought by the person legally interested in the 
 property, and can not be maintained by a cestui que trust, or 
 other party having only an equitable interest: 1 Chitty's PI. 
 2, 60, 189 and 190. If, therefore, the action belongs to either 
 of these classes, we take it to be clear that the appellant is 
 not entitled to this temporary relief, as it can not be supposed 
 that the legislature intended that such temporary injunctions 
 should be issued in cases where it is evident, from the plaint- 
 iff's own statements, that he can not maintain the action, and 
 that no final judgment in his favor can be had. What, then, 
 is the action which the pleader has attempted to set forth in 
 liis complaint? Is it the equitable proceeding? Or is it an 
 action to obtain damages for wrongs and injuries already com- 
 mitted? Or does he seek to recover the land itself ? Upon 
 his hypothesis, that the appellant is the owner in fee, the facts 
 stated are sufficient to enable him to maintain either of these 
 three forms of action; but according to our understanding, 
 that he is merely a cestui que trust, he can only maintain the 
 first. Under our present system, in which the distinction be- 
 tween actions at law and suits in .equity, and the forms of all 
 such actions and suits as they heretofore existed, are abol- 
 ished, the test by which we are to determine the character of 
 
436 Injunction. 
 
 actions, in those cases where the facts stated indicate either 
 of two or more actions, must be the relief demanded. Mr. 
 Whittaker, in his Treatise upon Practice and Pleading under 
 the Code, Vol 1, § 124, lays it down as a general rule that the 
 nature of the action is to be determined by the prayer for re- 
 lief. "We may, at least, safely adopt this rule in cases of doubt, 
 and in cases like the present, where the pleader, conceiving 
 himself entitled to prosecute either of several actions, has so 
 stated his facts as to leave it uncertain which be intended to 
 pursue. Looking to the prayer for relief, we find very clearly 
 that it is not the proceeding in equity. There is nothing in 
 it which at all indicates that be seeks an injunction as a per- 
 manent measure of relief. On the contrary, it is very plain 
 that he seeks it merely for the purpose of restraining the 
 commission of further acts of waste during the pendency of 
 the suit, and as a mode of redress which is incidental and 
 subservient to the main object of the action. itTo judgment 
 that the defendants may be finally and perpetually enjoined, is 
 asked, but the prayer is that they may be restrained until the 
 further order of the court. The complaint then proceeds to 
 demand, a recovery from the defendants of the land in contro- 
 versy, and of the damages which the plaintiff alleges he has 
 sustained by reason of the several acts of waste complained 
 of, besides the costs of his suit. The concluding portion of 
 the prayer makes it certain that the action is brought either 
 for the land or the damages, and although they may not both 
 be joined in one action, it is yet unnecessary for us to decide 
 for which, since neither can be maintained by a person not 
 having the legal title. 
 
 In support of our opinion that the appellant has not the 
 legal title to the land, we may say, that the complaint shows 
 that it was acquired by Philo Gillett, administrator de bonis 
 non of the estate of Benoni E. Gillett, deceased, and that no 
 conveyance by him to the plaintiff or any other person has 
 ever been made. It is expressly averred that the legal title 
 was in Philo Gillett, " but in trust, nevertheless, for the heirs 
 of Benoni R Gillett." 
 
 The only claim of title in the plaintiff is founded upon the 
 facts that the land was purchased with funds belonging to 
 the estate of the deceased, of whom the plaintiff and Philo 
 
GiLLETT V. Tkeganza. 437 
 
 Gillett, the administrator, together with nine other persons 
 named were joint heirs; that after the conveyance to Philo 
 Gillett the plaintifiF purchased and had conveyed to him, by 
 deeds duly executed, and delivery by each, the shares of §ix of 
 tlie other heirs; that after such purchase he presented his 
 petition to the County Court of La Fayette county, praying 
 tiiat seven elevenths of the estate might be assigned to him; 
 that upon such petition such proceedings were, among other 
 things, had in due form of law; that he was declared, ordered 
 and adjudged fo be the o\^ner of seven elevenths pf the estate; 
 including the land in question, and that he afterward pur- 
 chased and had conveyed to him the share of Leonard F. Gil- 
 lett, one of the heirs of the said deceased. It is likewise 
 stated that Benoni R. Gillett, in his lifetime and at the time 
 of his death, was in possession of the land in question, claim- 
 ing the same as mineral lands, the title hitherto being in the 
 United States; but as that statement can in no wise affect the 
 question of legal title, it need not be noticed. Upon these 
 statements it may well be adoiittedthat the appellant is the 
 equitable owner of the undivided eight elevenths for which, 
 or the damages to which, this action is brought, but it cer- 
 tainly can not be contended that they show him to have any 
 legal interest whateveri The debts and charges being paid, 
 and the affairs of the estate otherwise closed, as must be pre- 
 sumed from the fa,ct of a decree of distribution having been 
 made,, there can be no. doubt of the existence of the trust, and 
 that a transfer may be enforced by the parties beneficially in- 
 terested: Sec. 9, chapter 57, E. S. 1849. But until the -trust 
 is executed and the legal title transferred to, the heirs or 
 others entitled to their interests, the trustee remains, at law, 
 the owner. Nor can the. decree of the county court be said to 
 have at all affected the matter. , It at inpst only ascertained 
 and declared the shares or parts of the estate to which the 
 several heirs or their representatives or assigns were entitled, 
 so as to enable them, to, demand .or recover them from the 
 administrator or other person haying the same: Sec. 3, chap- 
 ter 72, E. S. 1849. 
 
 It did not purport to affect or transfer the legal title to any 
 estate or lands, but to settle and determine the rights and in- 
 terests of those persons to whom the lands of which the in- 
 testate died seized, descended upon his death, and in whom 
 
438 Injunction. 
 
 the legal title then was. This was the extent of the authority 
 conferred upon the county court, and the utmost effect which 
 can be given to such decree with regard to the lands in ques- 
 tion, is that, as between the plaintiff and the other heirs and 
 the trustee, it may be conclusive of the extent of their respect- 
 ive equitable rights and interests. 
 
 It is needless for us to enter into any discussion as to how 
 the title would have been affected by a decree of partition by 
 the county court under the statute referred to (Sec. 18, chap- 
 ter 72, R S. 1849), the administrator and trustee being one 
 of the heirs and a party to the proceeding, since it is not al- 
 leged that any such partition was ever adjudged. A reference 
 to some authorities bearing upon that question will be found 
 in the case of Nash v. Church, 10 Wis. 303. 
 
 The order of the circuit court is affirmed. 
 
 Elwell v. Ckowther et al. 
 
 (31 Beavan, 163. The Rolls Court, 1862.) 
 
 ' Water supply threatened, bnt not yet affected, by continued mining. 
 
 By miniiig operations the defeodaot bad not only sank the level ot a 
 stream supplying plaiatiff's mill, but also the level of the adjoining land. 
 Plaintiif filed a bill for an injunction, but there had been as yet no actual 
 diminution of the water to the mill, though threatened: Held, that 
 the bill ought not to be dismissed, bnt should stand with leave to apply 
 further; the defendant meanwhile to give an undertaking not to dimin^ 
 ish the flow. 
 
 A stream of water, called " The Mill Fleam," flowed from 
 a place called Peck Mill, through the defendants' land and 
 then through land of the plaintiff to Wednesbnry Forge, which 
 also belonged to the plaintiff. This stream there turned a 
 mill and supplied the motive power for the machinery work- 
 ing the forge. 
 
 This stream had been granted in 1765, by the former owners 
 of the defendants' lands, to persons through whom the plaint- 
 iff was entitled. 
 
 The deed of 1765 granted, with other property, " all that 
 trench, watercourse or aqueduct, cut or made," through the 
 
 ^Nevada Co. v. Kidd, 37 Cal. 2S2. 
 
Elwell v. Ckowther. 439 
 
 grantor's lands, with full libertj^ to rid, scour and cleanse the 
 watercourse and " to lay the dirt and rubbish on tlie banks 
 thereof," with certain rights to the grantees of flooding their 
 meadows at stated times. 
 
 The defendant, Crowther, by his tenant Mills, had worked 
 the ironstone under and on both sides of the stream under the 
 defendants' land, by which the surface land adjoining the 
 stream and the bed of the stream itself had become depressed 
 to the extent of four feet. 
 
 The plaintiff instituted this suit in July, 1861, against 
 Crowther and his tenant Mills, alleging that the flow of water 
 to the Mill Fleam had been materially interfered with and im- 
 peded, and the supply of water to the forge diminished, so as 
 to cause considerable injury and damage to the plaintiff; 
 that Mills had also nearly completed the erection of a stone 
 wall on one side the Mill Fleam, and a mud wall or embank- 
 ment on the other side. The plaintiff alleged that these in- 
 juriously affected his property and that they prevented or 
 interfered with the cleansing and clearing the watercourse, 
 which would in times of flood, by overflowing the banks of 
 the Mill Fleam, prevent the escape of the flood waters as they 
 had been accustomed to escape. 
 
 The plaintiff stated that the water thus collected and con- 
 fined within a narrow channel between the wall and the em- 
 bankment would break down or undermine them, whereby he 
 would be deprived of the use of the stream, or, at all events, 
 that the natural and usual flow of water would be seriously 
 obstructed or diminished. 
 
 The plaintiff also complained that the Peck Mill weir had 
 sunk; and he claimed not only relief, but also the interven- 
 tion of the court in respect of what was passed, as well as to 
 prevent irreparable injury to the watercourse, which the 
 plaintiff considered must inevitably ensue if the defendants 
 continued to work the mines as they had recently worked 
 them and as they threatened and intended to do. 
 
 The defendants said that if the surface of the land and the 
 bed of the Mill Fleam had sunk, still that it would, in a short 
 time, permanently settle, and would then sink no further; that 
 the sinking was very gradual and perfectly equal, and that 
 it would not do the slightest injury to the Mill Fleam, or 
 prevent the supply of water to the plaintiff's forge. The de- 
 
440 Injunctiokt. 
 
 fendants poaitively denied that tlie plaintiff had snstained any 
 actual damage in the supply of' water, and stated that Mills, 
 to prevent tiie escape of water from the Mill Fleam, had at 
 great expense embanked the Mill Fleam in the most ap- 
 proved manner, and that 80 far from such embanjiment and 
 wall injuriously affecting the plaiiitift's property and the 
 cleansing of the watercourse, the latter was now wider and 
 deeper than it was before and more easily cleansed or cleaned; 
 that such embankment and wall had been properly made so 
 that when the soil of the Mill Fleam had subsided, in conse- 
 quence of getting the ironstone^ under it, the water^ which 
 would be kept in its original level by weirs at other parts of 
 the Mill Fleam, would be, as nearly as .possible, at the same 
 distance from the topof the embankment and wall, as it would 
 have been from the top of the banks of the Mill Fleam, if they 
 had not been made and such subsidence had not taken place. 
 The defendants also said, that as the bed of the Mill Fleam 
 and the surface of the adjacent land would not sink 
 more than four feet, and that as it must sink in a per- 
 fect level it would not materially, or to any extent whatever, 
 affect or obstruct the flow and passaaie of water in and along 
 the Mill Fleam if proper embankments were made, as they 
 had been up to that time and were intended to be for the 
 future. The defendants further said, that the plaintiff had 
 visited the spot with Mills in August and October, 1860, to 
 consider the precautions necessary to prevent any injury to the 
 Mill Fleam, or any diminution in the supply of water to the 
 mineral works, and they insisted that the plaintiff had ac- 
 quiesced in the erection of the wall and of the embankment. 
 The bill prayed an injunction tO' restrain the defendants 
 from working the mineral in " the soil of the plaintiff" under 
 the Mill Fleam. 
 
 2. An account of all minerals worked by the defendants 
 out of the plaintiff's soil. 
 
 3. An injunction to restrain the defendants from working 
 their mines in such a manner as to cause any lowering of 
 the level of the bed of the Mill Fleam, or so as to obstruct 
 or diminish the flow of the water. 
 
 4. An injunction to restrain the defendants from permit- 
 ting any wall or embankment along the bank of the stream, 
 which would obstruct the cleansing of the watercourse, or in- 
 
El WELL V. CflOWTHEK. 441 
 
 terfere with the free escape, of' the flood waters, over the 
 banks. 
 5. For damages. 
 
 Mr. Lush, Mr. Baggallat and Mr. 0. Hatx, for the plaintiff. 
 
 Mr. FoLLETT and Mr. Deuce, for the" defendant Mills. 
 
 Mr. Selwtn and Mr. SoutHgate, for Orowther. 
 
 The Master of the Rolls. . 
 
 The object of the suit is, first, to restrain the niininjr under 
 the stream; secondly, to restrain the working of the mine in 
 such manner as to lower the bed of the stream, and obstruct the 
 flow of the water; thirdly, to restrain the erection of the wall 
 and banks, so as to obstruct the cleansing of the stream. It will 
 be necessary to consider these three parts of tlie case separately. 
 
 With respect to tlie first part, not only is there no evidence 
 that the plaintiff is entitled to the minerals, but the evidence 
 is all the other way. On the construction of the deed its6lf, 
 as a conveyance, it is obvious that counsel have very wisely 
 abandoned the idea of pressing on the court any right to the 
 minerals, or the soil under the stream, the consequence of 
 which necessarily is that this part of the case, which has been 
 abandoned, must be treated as a matter in which the plaintiff" 
 has altogether failed, and with respect to that the bill must 
 be dismissed with costs. 
 
 The next question is to consider what ought to be done 
 with the second branch of relief praj'ed. With respect to 
 that the circumstances are very peculiar; it is admitted that 
 the working of the ironstone under the soil has produced a 
 sinking of four feet of the level of the soil for a considerable 
 distance along the mill stream. I am not sure that it is quite 
 uniform in all places, but it is quite clear that there has been 
 a sinking of four feet. The plaintiff also contends that there 
 has been a sinking of the Peck Mill weir, and he also 
 asserts that there has been a damage to him by the ditainuticn 
 of the flow of the water. The plaintiff has no right whatever 
 to the soil of the river or to any minerals under the bed of the 
 stream, and the whole of his Interest is confined to the proper 
 supply of water to his mill; and provided that is not inter- 
 
442 Injunction. 
 
 fered with and that the court has a reasonable certainty that 
 it will not be interfered with, the plaintiiT has everything that 
 he is entitled to, if he be not put to any unusual or unnecessary 
 expense in maintaining his rights. Tiiere is no evidence that 
 there has been any diminution of the water of the mills, and 
 though there has been a general allegation, which would not 
 be sufficient under any circumstances, yet if it were capable 
 of proof, it would have been proved by some person showing 
 short working on some day or another. Consequently I think 
 that the plaintiff has not been damaged in this respect. 
 
 As to the sinking of tlie Peck Mill weir, I confess my ina- 
 bility to come to a satisfactory conclusion upon that point; 
 there has been a good deal of contradictory evidence upon the 
 subject. The two weirs which are compared together and 
 which are the standard by which the sinking of Peck Mill 
 weir is professed to be ascertained are a mile apart, and the 
 utmost sinking was said by one person to be ten inclies; but 
 it is a question of an inch or a portion of an inch, wiiich, with 
 the most accurate measurement, at that distance, must be very 
 liable to error, and it would be very difficult for the court to 
 act upon it. Neither can I act upon a comparison of the flow 
 of the water over the various weirs on the same day and at 
 the same time. To any person at all acquainted with water 
 in its natural state, it is obvious it must be lower at a partic- 
 ular spot at one time than at another, and that a little wind or a 
 little extra current or any like circumstances might cause the 
 water to run in a greater volume to their mill weir at one time 
 than it would at another. I can not come to any conclusion 
 upon that subject, and I must therefore hold that the plaint- 
 iff has not proved that there is any lowering of the water at 
 the Peck Mill weir, and he certainly has not proved that he 
 has sustained any damage in the diminution of water by rea- 
 son of the lowering of that weir. 
 
 Upon this it was argued, for the defendants, that when a 
 person comes for an injunction to restrain an injury done to 
 him, he must either prove that the injury has actually hap- 
 pened or that it is inevitable, and that without that tlie court 
 would dismiss the bill. That inuy be justly said as a general 
 proposition, but it is not applicable to this case. Here it is 
 an admitted fact, that the working of the ironstone under the 
 
Elwell v. Crowther. 443 
 
 surrounding ground has lowered the level of the surface of the 
 ground in the bed of the Mill Fleam to the extent of four feet, 
 and it is manifest that if the water had remained there, and if 
 the defendants had done nothing, this fact would most seriously 
 have obstructed the flow of the water to'the mill; in truth it 
 is the common case, and it is clear, upon the evidence, that 
 the water would have flowed over the plaintiff's meadows, 
 and that the raising of the banks was absolutely necessary for 
 the purpose of preventing it. It is true that the defendants 
 did raise the banks for that purpose; but I do not know 
 that the plaintiff could compel them to do so, except through 
 the authority of this court, declaring that they must not do 
 anything to obstruct the flow of water to the plaintiff's mill, 
 the right to which flow of water is unquestioned and unques- 
 tionable. 
 
 I can not certainly say, by applying to this court, that a 
 man has acted with undue precipitancy or undue haste who 
 finds that the soil for half a mile, through which the, stream 
 which supplies his mill runs, has by reason of the working 
 underneath that ground, sunk four feet. A plaintiff has to 
 contend with great difficulty in these cases, between the 
 double imputation which may be made upon him of precip- 
 itancy on tlie one hand and acquiescence on the other. Here, 
 practically, the defendants impute both, for they say: "Tlie 
 plaintiff ought not to have come before he had sustained any 
 damage, and he has sustained no damage;" and next they say, 
 that he examined the mode in which they were making the 
 banks, and gave advice respecting it, which was followed, and 
 that this amounted to an acquiescence in the continuance of 
 that mode of working. I am of opinion that it was neither 
 the one nor the other; that he has neither shown undue pre- 
 cipitancy in coming to the court when so great a sinking had 
 taken place, and he is not bound by the acquiescence which is 
 imputed to him by the defendants; at the same time I think 
 that he has sustained no damage at present, and that he will 
 sustain no damage, provided the defendants will continiie to 
 do what they have hitherto done, and that nothing more 
 occurs. I do not think that the court ought to leave it en- 
 tirely to accident whether the defendants will continue to do 
 wiiat they have hitherto done, without being ready to inter- 
 
444 IjsjuiircTiON, 
 
 pose for the assistance of the plaintiff in that respect; and 
 therefore, if there had been nothing further in the case and 
 the parties could not have settled the matter amicably, the 
 plaintiff would have been entitled to an injunction to restrain 
 the working of the mine in such a manner as to obstruct, 
 diminish, alter or interfere with the flow and passage of the 
 water or' the supply thereof in and along the watercourse. 
 
 I am of opinion that it has not been mterfered with yet, 
 and what" I propose to do with respect to this part of the 
 case is this: considering that the defendants appear to be do- 
 ing everything that is in their power to prevent the diminu- 
 tion or obstruction of the water to the plaintiff's mill, and that, 
 on the one hand, I ought not to make any hostile decree 
 against thetn on that subject, and considering, on the other 
 hand, that so serious an alteration has taken place in the level 
 of the earth as a subsidence of four feet, and that nobody can 
 tell, except by a sort of conjecture which this court can not 
 act upon, what may be the result; I think I ought not to make 
 a hostile order Against the defendants. I do not, therefore, 
 propose to give any costs of that portion of the bill, but to re- 
 quire the defendants to give the following undertaking: 
 
 "The defeadants undertaking not to work their mines in 
 such a manner as to obstruct, diminish, alter or interfere with 
 the flow and passage of the water and the supply thereof in 
 or along the said watercourse, let all further proceedings in the 
 suit be stayed, giving liberty to apply, but giving no costs 
 and making no further order in the matter." 
 
 With respect to the third part of the prayer of the bill, 
 which relates to the wall and the embankment, I am of opin- 
 ion that I onght to make no order at all. If the banks are 
 not raised to such a point, or are raised to such a point as 
 either to produce too much water or to diminish the quan- 
 tity of water which ought to flow to the plaintiff's mill, he 
 will, under general liberty to apply reserved to him, be en- 
 titled to come here to claim that right. With respect to 
 the scouring of the watercourse, I am of opinion that this 
 right was merely for the purpose of obtaining a due sup- 
 ply of water to the mill, and that if, by any acts of the de- 
 fendants, the plaintiff is impeded in doing anything necessary 
 for that purpose, for instance, if by acts of the defendants 
 
McLAUGHLiiir V. Kelly. 445 
 
 the bed of the watercourse is lowered or its banks raised, then 
 that shifts the burden, and it would become necessary for the 
 defendants to act so as to prevent the obstruction of the flow of 
 water to the plaintiff's mill. In that respect, liberty to apply 
 will also be sufficient in case that event arises, but at present, 
 I have no. reason to suppose, if the defendants act as they have 
 hitherto acted for the protection of the Mill Fleam and the 
 banks, that such an event will occur. At tlie same time, no 
 person can speak with certainty as. -to what may happen in 
 respect of that matter, and the plaintiff isentitled to have the 
 assistance of this court, and if that event should happen he 
 must be at liberty to come here at a moment's notice. 
 
 I think that this court can not properly dismiss the bill 
 altogether, and leave the plaintiff to file a new bill. If, for 
 instance, in working the minerals a crack in the soil at the 
 level of the ironstone, or any other like calamity, which is 
 now anticipated, should occur to injure this stream, he would 
 then be told that he had long been aware of what would hap- 
 pen, and ought to have applied sooner. 
 
 Therefore, the course I shall take is this: I shall dismiss the 
 bill as to working under the Mill Fleam, and the account of 
 the minerals worked, and as to the rest I shall, upon the de- 
 fendant giving. the undertaking I have stated, retain tlie bill, 
 staying all further proceedings, and give liberty to all parties 
 to apply, but J shall make no order as to the costs of the lat- 
 ter matter. 
 
 If the defendants should not give the undertaking, I shall 
 then grantthe injunction in the terras I have stated. 
 
 McLaughlin et al. v. Kelly et al. 
 
 (22 California, 212. Supreme Court, 1863.) 
 
 ■ Injunction after recovery in trespass. The complaint averred thaA de- 
 fendants unlawfully entered upon certain mining ground owned by 
 plaintiffs, and mined out large quantities of gold, of the value of $1,000; 
 and that defendants were wanton trespassers, and concluded with a 
 prayer for judgment for $1 ,000 and an injunction. The answer averred 
 that defendants were the owners of a certain portion of the ground de- 
 
 ' Daubenspeck v. Grear, 7 M. R. 429. 
 
446 Injunction, 
 
 scribed in the complaint, and denied that defendants had worked any 
 g-onnd except that to which they"claimed title'. The cause was tried by a 
 jury, who found."a verdict in favor of the plaintiffs, with one dollar dam- 
 ages." The court thereupon rendered a judgment in favor of plaintiffs 
 for one dollar, without costs, and ordered the temporary injunction 
 which had been granted to be dissolved: Held, that the verdict of the 
 jury decided the question of title in favor of the plaintiffs, and that the 
 refusal of the court to grant a perpetual injunction was error. 
 
 Terdict npon matter not in issue. The court instructed the jury: " The 
 answer in this case admits that defendants have extracted gold of the 
 value of $1,000 from the ground claimed by plaintiffs, * * and if (he 
 juiy believe from the evidence that plaintiffs, at the time of the alleged 
 trespass, were entitled to the possession'of such ground, they should find 
 a verdict in favor of plaintiffs for $1,000 damages": Held, that because 
 the jury found a verdict for one instead of one thousand dollars, we are 
 not therefore to conclude that they did not find that the plaintiffs were 
 entitled to the mining ground in dispute. There was no issue upon the 
 question of damages, and that part of the verdict was upon a matter 
 not properly before the jury. 
 
 ' Injunction wliicli ends controversy not refused. In an action of trespass 
 in which the title has been litigated, it is no reason for refusing a per- 
 petual injunction that it would conclusively settle the title to the ground 
 in dispute, and estop defendants from recovering any portion of the 
 ground in another form of action. The principal object of actions is to 
 produce just such a result; that is, to finally settle the controversy. 
 
 'Effect of verdict. If in an action of trespass the jury find generally for 
 the plaintiffs, it concludes the parties upon all questions material to the 
 recovery of plaintiffs, which are distinctly put in issue. 
 
 Tlie Practice Act of California abolishes all forms of action, and 
 under it we must look solely to the material facts put in issue by 
 the pleadings, to ascertain what was in fact determined by the findings 
 of the court or the verdict of the jury. 
 
 Appeal from the Seventeenth Judicial District. 
 
 Tiie nature of the action and the character of the issues raised 
 by tlie pleadings are fully stated in the opinion. The form 
 of the allegation of damage in the complaint, following a 
 description of the entire premises claimed by them, is that 
 defendants " then and there," with picks, etc., " dug, mined 
 out, removed, and converted to their own use, divers larce 
 quantities of gold and gold-bearing earth, and gravel of great 
 value, to wit, of the value of $1,000," to the damage of plaint- 
 iffs in that sum. The only reference to the subject of damage 
 in the answer is a denial tliat defendants have done any work 
 west of the line as claimed by them. 
 
 ' Denver v. Lobenstein, 3 Colo. 216. 
 ' Outram v. Morewood, 5 M. R. 484, 
 
McLaughlin v. Kelly. 447 
 
 The statement of the evidence on the trial, as set forth in 
 the record, is as follows: ""Whereupon a jury was regularly 
 impaneled to try the cause, and the parties respectively intro- 
 duced testimony in support of the issues on their part. It 
 was in evidence, that defendants had worked and mined in 
 that part of the mining ground claimed in the complaint and 
 replication, and lying east of the Carter line, running north 
 fifty-seven degrees and forty-five minutes west (the line claimed • 
 by defendants). There was evidence tending to prove that 
 defendants had run an air tunnel through a portion of plaint- 
 iffs' ground west of said Carter line, and that this last men- 
 tioned tunnel was run by the consent of the plaintiffs; also 
 that in working along said line, the defendants had in several 
 places broke over the same and caved down a little dirt from 
 the west side thereof, and at tlie same time plaintiffs told 
 defendants they need not be very particular about the line or 
 about going over the line." 
 
 The instructions were almost entirely directed to questions 
 respecting the title to the triangular piece of ground put in 
 issue by the pleadings. In each of three instructions given 
 at request of defendants, the jury were told that, upon a cer- 
 tain hypothesis of facts respecting title to the triangle above 
 mentioned, they must find for defendants, " unless they find 
 that defendants worked on the west side of the Carter (N. 57° 
 i5' W.) line." On the subject of damage the court instructed 
 as follows: "The answer in this case admits that the defend- 
 ants have extracted gold of the value of $1,000 from the ground 
 claimed by plaintiffs in their complaint, and during the time 
 therein alleged, and if the jury believe from the evidence that 
 plaintiffs at the time of the alleged trespass were entitled to 
 the possession of such ground, they should find a verdict in 
 favor of plaintiffs for $1,000 damages." 
 
 The verdict was as follows: " We the jurors in the case of 
 Ghas. Mcl'Mughlin v. Peter Kelly et al., do find a verdict in 
 favor of the plaintiffs, with one dollar damages. 
 
 " L. W. Keyes, Foreman." 
 
 Taylor & Cowdeey and "Will Campbell, for appellants. 
 
 Vanclief & BowEEs and A, I. "Williams, for respondents. 
 
448 Injunction. 
 
 Ceookeb,J-, delivered the opinion of the court, Oope, 0. 
 J., and NoKTON, J., concurring. 
 
 The complaint in this case avers that .the defendants un- 
 lawfully entered upon certain mining ground owned by the 
 plaintiffs and in their possession, and mined out, removed and 
 converted to their own use large quantities of gold and gold- 
 bearing earth, of the value of $1,000; that the defendants 
 have no right to said mining ground, but are wanton tres- 
 passers thereon ; that they are still mining the ground, the 
 sole value of which consists of the gold therein; that unless 
 restrained, they will mine out the best and most valuable 
 portion of the ground before the determination of the suit; 
 and concludes with a prayer for judgment for $1,000, for a 
 temporary, and, on the final hearing, a perpetual injunction, 
 and for general relief. The answer of the defendants denies 
 that the plaintiffs ever were the owners or in the possession 
 of the whole of the mining ground claimed in the complaint, 
 or of any portion upon which they, the defendants, have ever 
 mined, or from which they have ever removed any gold or 
 gold-bearing earth of any value. They aver that they arc 
 the owners and in possession of certain mining ground in the 
 same vicinity, which they describe, and then deny that they 
 have ever mined or removed any gold-bearing earth from any 
 part of the ground described in the complaint, except so 
 much thereof as may be within the boundaries of their own 
 claims, to which plaintiffs had no right, title or possession. 
 The replication denies that the defendants owned or possessed 
 the premises described in the answer, or any portion thereof, 
 except such portion as may lie easterly of a line drawn from 
 a certain stake, mentioned in the description of defendants' 
 mining ground, and running north forty-eight degrees forty- 
 five minutes west by magnetic meridian, but on the contrary 
 plaintiffs are the owners and possessors of the ground lying 
 westerly of said line. The pleadings are dnly verified. The 
 canse was tried by a jury who found " a verdict in favor of 
 the plaintiffs, with one dollar damages." A temporary in- 
 junction had been granted at the commencement of the sni^ 
 The court rendered a judgment in favor of the plaintiffs for 
 one dollar, without costs, and ordered tlie temporary injunc- 
 
McLaughlin v. Kelly. 449 
 
 tion to be dissolved. The plaintiffs asked the court to render 
 a judgment upon the verdict for one dollar, with costs, and for 
 a perpetual injunction against raining the ground described in 
 the plaintiifs' complaint, which was refused by the court, and 
 to which the plaintiffs excepted, and they prosecute this ap- 
 peal from the order dissolving the temporary injunction and 
 the refusal to grant the perpetual injunction. 
 
 It appears that these parties own adjoining mining grounds, 
 and that the premises in dispute is a gore of land, lying be- 
 tween the undisputed portions of their respective claims, the 
 plaintifts' claim lying westerly and the defendants' easterly 
 of this gore. This disputed piece ^of land lies between two 
 lines, both commencing at a certain stake, the one line run- 
 ning from this stake north forty-eight degrees forty-five min- 
 utes west, and the other north fifty-seven degrees forty-five 
 minutes west, a difference of nine degrees; the plaintiffs 
 claiming that their mining ground extends to the former line, 
 while the defendants claim that theirs extends to the latter 
 line. This issue is clearly, plainly and distinctly presented 
 by the pleadings, and the plaintiffs contend tliat as the ver- 
 dict was for them, this issue was found by tiie jury in their 
 favor; that they were therefore entitled to a perpetual injunc- 
 tion, restraining the defendants from mining upon any por- 
 tion of the ground described in their complaint, and that the 
 court erred in refusing it. A careful examination of the 
 pleadings clearly shows that the question of ownership of this 
 gore of land was, in truth, the main fact in issue in the case. 
 All the other material allegations were not denied, and were 
 therefore admitted. Even the question of damages, which 
 was passed upon by the jury, was not in issue, because the 
 allegation of the complaint on that point was not specifically 
 denied by the answer. The plaintiffs averred that they were 
 the owners of a certain tract of mining ground, describing 
 its boundaries, which include the gore in controversy; the 
 defendants deny that the plaintiffs are the owners of this 
 gore, and aver that they own a piece of mining land, describ- 
 ing it, which includes it. If a question of ownership and 
 title was ever put in issue in any case, they certainly were in 
 this; and when the jurj- by their verdict found for the plaint- 
 iffs, they clearly found this issue for them. None of the 
 VOL. VII.— 29 
 
450 Injunction. 
 
 allegations in the complaint on which the injunction prayed 
 for is founded are denied by the answer, and they are there- 
 fore admitted; and the only issue of fact being found for the 
 plaintiffs, they were clearly entitled to that relief. 
 
 But it is objected by the respondent that the perpetual in- 
 junction would conclusively settle the title to all the ground 
 described in the plaintiffs' complaint in favor of the latter, 
 and forever preclude and estop the defendants from disputing 
 it, or recovering any portion of the ground in any other action^ 
 and therefore it ought not to be granted. Very probably 
 such would be the result. Such is usually the result of trials 
 where a question of fact, material to the determination of the 
 suit, lias been fairly tried and a verdict and judgment has 
 been rendered thereon. The principal object of actions is to 
 produce just such a result; that is, to finally settle the con- 
 troversy and put an end to litigation and strife. When there 
 has been a fair trial of such an issue, courts usually give the 
 verdict and judgment a" final and conclusive effect, and will 
 not permit the parties, or those claiming under them, to re- 
 litigate the same matter in another suit: Loring v. IlUley, 1 
 Cal. 28; Soule v. Dawes, 14 Id. 248; Kidd v. Laird, 15 Id. 
 162; McDonald v. The Bear River and Auburn Water and 
 Mining Co., Id. 145; Rolinson v. Howard, 5 Id. 428; 2 
 Phillips' Evidence, C. H. & E.'s Notes. 18, notes 261, 262. 
 
 It is also urged that the verdict of the jury may have been 
 founded upon other matters than the ownership of the gore 
 of land in controversy; and this is more especially insisted 
 on because the jury found oply one dollar damages. The 
 finding of the jury " for the plaintiffs " was upon all the issues 
 in the pleadings, and, as we have shown, the only issue upon 
 any material fact was as to the ownership and possession of 
 this particular strip of land, and this verdict was clearly 
 against the defendants upon that matter. As to the amount 
 of damages found by the verdict, it was entirely immaterial, 
 and surplusage. There was no issue upon the question of 
 damages presented by the pleadings for the jury to try, and 
 that part of their verdict was, therefore, upon a matter not 
 properly before them. The answer not containing any specific 
 denial of the amount of damages alleged in the complaint, 
 those allegations were therefore admitted, and there was no 
 
McLaughlist v. Kelly. 451 
 
 issue upon that question. We have no right to say that the 
 jury founded their >verdict upon matters not in issue. So with 
 regard to the instruction of tlie couft that, if the jury should 
 >find that tlie plaintiffs were entitled to the mining ground 
 they must find a verdict for $1,000 damages upon the admis- 
 sions of the answer. That instruction was upon an irrelevant 
 and immaterial matter, one not for the jury to act upon. The 
 amount of damages being adnaitted by the answer took that 
 question entirely from the jury. Because the jury did not 
 bring in a verdict for $1,000 damages, in accordance with that, 
 instruction of the court, we are not therefore to conclude that 
 they did not find that the plaintiffs were entitled to the raining 
 ground in dispute, in direct contradiction to their verdict. 
 
 The question before us is not as to the conclusiveness or 
 effect of this verdict upon the issues'presented by the plead- 
 ings, or the judgment which may be rendered upon the ver- 
 dict, as an estoppel or bar in another action, but simply what 
 relief, or what kind of a judgment the plaintiffs are entitled to 
 under the pleadings and verdict; whether they are entitled to 
 such relief as will quiet and settle the controversy about this 
 mining ground, or whether they shall be compelled to bring 
 repeated suits for each trespass which may be committed by 
 the defendants. We are clearly of opinion that under the 
 pleadings and verdict they are entitled to the relief by per- 
 petual injunction, as prayed for in the plaintiffs' complaint. 
 
 It is also urged that the form of the action is to govern in 
 questions of this kind. We are aware that under the old 
 system of practice the conclusiveness and effect of general 
 verdicts, and the judgments rendered thereon, depended very 
 much upon the Tparticn\a,rjvrm of the action. But our Prac- 
 tice Act abolishes all these /brms, and provides that "there 
 shall be in this State but one form of civil actions for the en- 
 forcement or protection of private rights, and the redress or 
 prevention of private wrongs." And the pleadings are 
 merely required to set forth a statement of the facts 
 constituting the cause of action or defense "in ordinary 
 and concise language." It has bpcome a common practice 
 to follow and use, to some extent, the .form of allega- 
 tion of facts formerly used in the different kinds of 
 actions under the old system; but such use can not 
 
452 Injunctioit. 
 
 vary the uniform rule which must be applied to all pleadings 
 under the new code. We must now look solely to the mate- 
 rial facts put in issue by the pleadings, to ascertain what was 
 in fact determined by the findings of the court or the verdict 
 of the jury. The mere fact that the pleader has used terms 
 of expression in stating his case used in particular kinds of 
 action, under the oM system of practice, will not necessarily 
 give character to or determine the effect or meaning of the 
 verdict. It is therefore unnecessary to investigate this ques- 
 tion bj' an examination of the cases founded upon these old 
 distinctions of the different forms of actions. 
 
 The orders appealed from are therefore reversed, and the 
 court below is directed to enter judgment for a perpetual 
 injunction, in accordance with this opinion. 
 
 Reversed. 
 
 The Real Del Monte Consolibated Gold and 
 
 Silver Mining Company v. The Pond Gold 
 
 AND Silver Mining Company, 
 
 (23 California, 82. Supreme Court, 1863.) 
 
 ' Denial of equities — Affidavits. If the answer to a bill for injunction to 
 restrain raining upon a quartz ledge claimed by both parties, denies all 
 the equities of the bill, and the bill is not supported by affidavits, the 
 injunction must be dissolved. 
 
 Restraining party claiming title— Laclies— Expenditures. If a mining 
 company has been in possession of a quartz ledge for several months, 
 expending large sums of money in working it as their own, it will require 
 a strong showing to induce a court of equity to grant or sustain an 
 injunction to stop the work. There must be an urgent necessity, and 
 the title of plaintiffs must be shown to be clear, and not in dispute. 
 
 Title in dispute— Inconvenience to defendant, and his solvency. Where 
 the title to property is in dispute, the injury occasioned to the parties 
 respectively by the granting or refusing of the injunction will be com- 
 pared, and the question of defendant's solvency will be considered. 
 
 Appeal from the Sixteenth Judicial District, Mono County. 
 
 Tiie complaint was filed August 10, 1863, and avers that 
 on the ninth day of February, 1863, the plaintiffs were the 
 , U S. V. Parrott, 7 M. B. 336; M<iden v. Veeuers, 5 Beav. 503. 
 
Real Del Monte M. Co. v. Pond M. Co. 453 
 
 owners of, in the actual possession, and entitled to the posses- 
 sion of a gold and silver qnartz lode, known as the Aurora 
 Mine Ledge, commencing at a point distant fourteen feet in a 
 direction north fifty-six degrees west from the cut in the ledge 
 at the mouth of the shaft known as the old Aurora-Shaft, and 
 from said point of commencement extending in a westerly 
 direction ei^ht hundred feet on the ledge, and in an easterly 
 direction eight hundred feet on the ledge, and that defendants 
 on the said day and on divers days from that time until the 
 commencement of the suit, and while plaintiffs were still the , 
 owners of and in possession of the ledge, with force and arms 
 sunk pits and shafts upon, and excavated drifts and tunnels 
 into the ledge, and took, removed and carried away from the 
 ledge large quantities of gold and silver- bearing rock, etc. 
 
 An injunction was granted by the county judge the same 
 day the complaint was filed on plaintiffs' application, without 
 notice to defendants. 
 
 August 12, 1863, the defendants filed their answer, and 
 thereupon moved that the injunction be dissolved. The 
 county judge refused to dissolve the injunction, and from this 
 order denying the motion to dissolve, defendants appeal. 
 
 Kendall & Quint and Gouqh & Allen and C.J. Hillyee, 
 for appellants. 
 
 Mesick and Yan Yooehies, for respondent. 
 
 Ceookee, J., delivered the opinion of the court, Noeton, J., 
 concurring. 
 
 This is an appeal from an order refusing to dissolve an in- 
 junction which had been granted upon the complaint, with- 
 out norice to the defendants. The defendants filed an ansvrer 
 denying all the material allegations of the complaint, and 
 moved thereon to dissolve the injunction, which was denied. 
 The main question at issue is the ownership of the quartz 
 ledge which the defendants are engaged in working — the 
 plaintiifs claiming that it is a part of the "Aurora Ledge," 
 owned by them; and the defendants denying that it is part of 
 the "Aurora Ledge," aver that it is a part of the "Pond 
 
454 Injunctiok. 
 
 Lode," owned by them, and that they are engaged in working 
 the same as the rightful owners thereof. 
 
 The rule has been settled by this court that where a motion 
 is made to dissolve an injunction upon complaint and answer, 
 the injunction will be dissolved if the answer denies all the 
 equities of the complaint, unless the complaint is supported 
 by additional affidavits: Gardner v. Perlcins, 9 Oal. 553; 
 Burnett v. Whitesides, 13 Id. 157; Curtis v. Sutter, 15 Id. 
 263; Joknson v. The Wide West Co., 22 Id. 479. 
 
 It appears that the defendants have been in possession of 
 the quartz ledge in question for several months, have expended 
 large sums of money in developing and working the same, 
 and were at the time of the granting of the injunction, and 
 hadj for some time previously, been working the mine as their 
 own. In such case it requires a very clear and strong show- 
 ing to induce a court of equity to grant or sustain an injunc- 
 tion to stop the work. There must be an urgent necessity, 
 and, as a general rule, the title and right of the plaintiffs 
 should be shown to be clear, well establislied and not in dis- 
 pute. The application should also be made promptly, and not 
 delayed until large expenditures have been made by the de- 
 fendants: Clavering v. Clavering, 2 Pierre Wm. 388; Anon- 
 ymous, Ambler, 209; 18 Vesey, 615; Norway v. Howe, 19 
 Id. 144; Field v. Beaumont, 1 Swanston, 203; Hilton v. 
 Oranville, 1 Craig & Phillips, 283. 
 
 When the title to tiie property is in dispute between the 
 parties, the extent of inconvenience and expense to which tiie 
 defendant would be subjected by the granting of the injunc- 
 tion, as compared with the injury the plaintiff would be likely 
 to suffer if refused, often forms an important consideration in 
 determining the right to an injunction: Sicks v. Compton, 
 18 Cal. 210; 3 Daniell's Ch. Pr. 1860; Adams' Eq. 357; Bruce 
 V. Delaware c& Hudson Canal Co., 119 Barb. S. C. 371. 
 The question whether the defendants are solvent, and able to 
 respond in the damages they may cause by their acts or not, 
 is often an important one in sucli cases: Burnett v. Whitesides, 
 13 Cal. 157; 2 Story's Eq. Sec. 925; Waldron v. Marxh, 5 
 Oal. 119. The plaintiffs in this case have set up no circum- 
 stances of this kind to sustain their application for the in- 
 junction. 
 
 TJie injunction is dissolved. 
 
Moke v. Massini. 455 
 
 More v. Massini et al. 
 
 (32 California, 590. Supreme Court, 1867.) 
 
 ' Claim for trespass assignable. A claim for damages in trespass, quar- 
 rying and taking away asphaltum, is assignable, and the assignee may 
 sue in bis own name under section 4 of the Practice Act. 
 
 Averment af Insolyeney, wlien unnecessary. When the injury goes to 
 the destruction of the substance of the estate, which can not be spe- 
 cifically replaced, no allegation of insolvency is necessary to sustain an 
 injunction. 
 
 Equitable relief and damag'es iu the same action. A claim for damages 
 for trespass committed and a prayer for injunction to prevent further 
 waste may be joined in the same complaint. 
 
 Plaintiff in possession. A party may have an injunction to restrain a 
 threatened injury to real property, in the nature of waste, even though 
 he is in possession of the land. 
 
 The court below sustainedi the demurrer to the complaint, 
 the plaintiff declined to amend, and judgment was entered 
 against him, and he appealed. 
 
 The other facts are stated in the opinion of the court. 
 
 S. F. & J. Reynolds, for appellant. 
 
 Casskely & Baenks, for respondents. 
 
 By the Court, Shaftek, J. 
 
 The complaint is in two counts. The first count is lor dam- 
 ages caused by a trespass upon land prior to a conveyance 
 thereof to the plaintiff. Tlie plaintiff claims the damages by 
 assignment. In the second count, the plaintiff alleges that 
 lie is tlie owner of the lands, and that they are in his posses- 
 sion; that the defendants threaten to enter thereon, and to 
 quarry and remove asphaltum therefrom, and that they will 
 do so unless restrained. Wlierefore an injunction is prayed, 
 etc. 
 
 The complaint was demurred to on the ground that neither 
 count stated a cause of action, and that there was a mis- 
 joinder of causes. 
 
 ■ MeGoon v. Anlceny, 1 M. R. 9; Williams v. Pomeroy Co., 6 M. R. 195. 
 
456 IxjuifCTioN. 
 
 First. Tlie sufficiency of the first count is disputed upon 
 the ground that the dama^'es claimed tlierein are not assign- 
 able. 
 
 It is insisted that tlie point is covered by Oliver v. Walsh, 
 6 Cal. 456, and that after twelve years' acquiescence, the doc- 
 trine of that case ouglit not to be re-opened to controversy. 
 
 It is true that the question presented in the case at bar is 
 identical with that presented in the case cited; but the grounds 
 of judgment now are not identical with those on foot in 1856, 
 when the case cited was decided. The decision was made 
 under the fourth section of the Practice Act, as amended in 
 1855: Stat. 1855, pp. 30, 31. The original section passed in 
 1851 (Stat. 1851, p. 51, Sec. 4,) was as follows: "Every action 
 shall be prosecuted in the name of the real party in interest, 
 except as otherwise provided in this act." By the amend- 
 ment of 1855, it was provided that " every action shall be pros- 
 ecuted in the name of the real party in interest, except as 
 otherwise provided in this act; but in suits brought by the 
 assignee of an account, unliquidated demand or thing in action 
 not arising out of contract, assigned subsequently to the 1st 
 day of July, 1854, the assignor shall not be a witness in behalt 
 of the plaintiflT." The decision in Oliver v. Walsh proceeded 
 upon a construction of this amendment. It is unnecessary 
 for us to express any opinion as to the validity of that con- 
 struction, for the amendment of 1855 has been entirely super- 
 seded by subsequent legislation. There is now no distinction 
 between persons who are competent to bring actions and per- 
 sons competent to testify in them when bronght. Bat what 
 is perhaps more to the purpose, the legislature, by an act 
 approved January 27, 1864, took up the fourth section of 
 the Practice Act and re-enacted it in terms as passed in 1851, 
 with the amendments of 1854 and 1855 left out. The ques- 
 tion to be considered, then, is whether a claim for damages 
 to real estate can be assigned under the fourth section of the 
 Practice Act as it now stands. 
 
 The one hundred and eleventh section of the New York 
 Code of 1848 was i)recisely the same as the fourth section of 
 our Practice Act has been made to be by the act of 1863-4; 
 and it was held in MoKee v. Judd, 2 Ker. 625, that the right 
 of action for a tortious conversion of personal property was 
 
Moke v. Massini. 457 
 
 assignable, and that the assignee mij^ht sue therefor in his 
 own name under the one hundred and forty-ei^htli section of 
 the Code referred to. In North v. Turner, 9 S. & R. 248, Mr. 
 Justice GiBSON remarked in delivering the opinion of the 
 court, as follows: "This is an action of trespass de ionis as- 
 portatis, and it is urged that the property in the damages ex- 
 pected to be recovered, being for a mere tort, is so peculiarly 
 attached to the person as to be inseparable from it, and that 
 consequently before an actual recovery of the damages there 
 was nothing for an assignment to act upon. There are un- 
 doubtedly some injuries which so peculiarly adhere to the 
 person of him who has suffered them as to preclude an assign- 
 ment of his claim to compensation for them; such, for instance 
 as slander, assault and battery, criminal conversation with a 
 party's wife, and many others thatmiglit be mentioned. The 
 right of compensation for any of these would not pass by a 
 statute of bankruptcy or an assignment under the Insolvent 
 Acts; nor could it be transmitted to execiUurs or administra- 
 tors, teut this does nut hold with respect to a trespass com- 
 mitted against a party's goods, the remedy for which survives 
 to the personal representative by the statute (4 E. 3, C. 7), 
 which clearly shows that such a cause of action is separable 
 from the person of the owner." 
 
 By the one hundred and ninety-sixth section of our Probate 
 Act, the right of action for trespasses committed on the real 
 estate and in the lifetime of a person deceased, survives to his 
 executor or administrator; and a claim for damages to per- 
 sonal or real estate would undoubtedly pass under an assign- 
 ment by a petitioner in insolvency, of " all his property, real, 
 personal, and mixed, for the benefit of his creditors." The 
 survivorship in the one case, and the transfer in the other, 
 clearly show that the cause of action in the respective cases 
 is " separable from the person of the owner," and is therefore 
 assignable by conclusion, according to the case cited .from 
 Pennsylvania. In Lasard v. Wheeler, 22 Gal. 142, though 
 the question now under consideration was not directly pre- 
 sented, still it was said on the authority of McKee v. Judd 
 and North v. Turner, that a right of action for the wrongful 
 taking and conversion of personal property is assignable. 
 
 There can be no tenable distinction taken between tres- 
 
458 Injunction. 
 
 passes affecting personal, and trespasses affecting real es- 
 tate. Both are torts— the wrong is to property in both 
 cases— tiie right of action survives in both, and under our 
 system the argument drawn from the doctrine of champerty, 
 which constitutes the very basis of the non-assignability of 
 chosea in action at common law, has no application to an as- 
 signment of a claim falling under either class. Oessante ra. 
 tione cessat lex. 
 
 Second. The second count states a good cause of action 
 The gravamen is a threatened trespass upon land. Tiie tres- 
 pass is in the nature of waste, and it will be committed unless 
 the defendant is restrained. Should the threat be fulfilled, 
 the plaintiff would be deprived of a part of the substance of 
 his inheritance, which could not be specifically replaced. In 
 the class to which this case belongs, no allegation of insolven- 
 cy is necessary. The injury jis irreparable in itself: Merced 
 Mifi. Co. V. Fremont, 7 Oal. 322; Bicks v. Michael, 15 Cal. 
 116; Leach v. Day, 27 Cal. 6i6; People v. Morrill, 26 Cal. 
 360, Inasmuch as the plaintiff's rights to the remedy by in- 
 junction has its origin in the nature of the injury complained 
 of, it was of course unneceasary to aver matter merely ad- 
 ventitious: Natoma W. d; M. Co. v. Clarkin, 14 Oal. .551. 
 
 Third. The demurrer for misjoinder of causes is not well 
 taken. 
 
 By the seventh subdivision of the sixty-fourth section of 
 the Practice Act, " injuries to property may be joined in the 
 same complaint." By the very supposal, the injuries that 
 may be so joined are independent and distinct. The property 
 injured may be the same or different; it may be either per- 
 sonal or real. The title of the plaintiff to redress may be 
 original in respect to one injury, while in respect to the other, 
 or others, the right may have come to him by assignment. 
 Some of the injuries complained of may be legal, while others 
 may be of an equitable character. Trespass upon land is a 
 legal injury; to threaten to enter upon and waste it is an 
 equitable injury. But both may be joined in the same com- 
 plaint, nevertheless, for the statute reason that both are '' inju- 
 ries to property." That general likeness is the only test to 
 which the question of joinder in cases like the present can be 
 subjected under our system. Under the New York Code as 
 
Moke v. Massini. 459 
 
 amended in 1852, the right to join a cause of action in equity 
 with a cause of action at law was made to depend upon whether 
 " both arose out of the same transaction, or transactions con- 
 nected with the same subject of action." Yoorhies' Code, 
 Sec. 167. But there is no such restriction in our code. Nor 
 do we understand that the existence of such restriction has 
 ever been judicially determined by this court. Gates v. Kieff, 
 7 Cal. 127), was an action of trespass quare clausum fregit. 
 There was a prayer for damages, and also for an injunction 
 based on proper allegations. It is true that the land with 
 respect to which the injunction was prayed was identical with 
 that upon whicli the trespass was committed, but that was a 
 matter upon which no stress was laid either by the counsel or the 
 court. The appellant insisted that the complaint was radically 
 defective for the reason that the legal and equitable causes were 
 not distinctly stated, and that was the only question presented 
 and determined. NatomaW. Co. v. ClarJcin, 14 Cal. 554, was 
 an action of ejectment. There was aprayer foran injunction to 
 restrain the commission of waste upon the premises pending the 
 action. The conrt say " that this blending of an action at law 
 with a petition for ancillary relief to the equity side of the court 
 is admissible under our system of practice." But the court 
 did not determine, nor was it called upon to consider, whether 
 the power to administer legal and equitable yelief in the same 
 action was confined to cases where the latter was merely 
 cumulative or ancillary to the former on one continuous gist. 
 The question was not raised. The same remark is applicable 
 also to the decision in Gray v. Dougherty, 25 Cal. 266. In 
 disposing of this appeal, however, it is not necessary to deter- 
 mine whether the legal and equitable relief to be granted in 
 the same action should relate to the same subject-matter or 
 to the same transaction. It is enough that the plaintiff herein 
 has succeeded to all thej rights and stands in the shoes of the 
 assignor and grantor. If the assignment and conveyance had 
 not been made, then he under whom the plaintiff claims could 
 have sued for damages for the trespass, and counted in the 
 same action upon an equitable injury like the one complained 
 of herein. That was^the case in Gate» v. Kieff, 7 Cal. 124. 
 
 Fourth. It is further claimed for the appellant that the 
 plaintiff is not entitled to the equitable relief demanded, for 
 
460 Injunction. 
 
 the reason that the complaint shows him to be in the quiet 
 and peaceable possession of the land. 
 
 The injury which the defendant threatens is irreparable by 
 definition, and going as it does to the substance of the inher- 
 itance, it is a matter of indifference whether the plaintiff is 
 in or out of possession. 
 
 Judgment reversed, and new trial granted. 
 
 The Mammoth Vein Consolidated Coai, Compa- 
 ny's Appeal. 
 
 (54 Pennsylvania State, 183. Supreme Court, 1867.) 
 
 Dispute between lessees. In a dispute as to their rights between parties 
 working under different leases on the same coal veins, no injunction can 
 be granted in advance of the settlement of their rights at law, except 
 to prevent irreparable mischief or injury. 
 
 General principles. A preliminary injunction is a restrictive or prohibit- 
 ory process to compel the party to maintain his status merely until the 
 matters in dispute shall be determined; only granted (in addition to 
 the case of invasion of unquestioned rights) for the prevention of irrep- 
 arable miscjiief, which can not be repaired under any standard of com- 
 pensation. 
 
 ' Past injury. Where defendants had run a gangway in such a direction as 
 to out off plaintiffs from coal which they otherwise might have taken: 
 Held, a past transaction, and not to be redressed by preventive process. 
 
 ' Standing' by. It was in proof that defendants knew of the direction and 
 extent of plaintiffs' work, which they allowed to be continued without 
 objection; even if this fact were only doubtful it would be sufficient to 
 defeat an injunction, for they should have been on their guard to pre- 
 vent the expenditure of money on what they meant should not be real- 
 ized upon by the parties expending it. 
 
 Appeal from the decree of the Court of Common Pleas of 
 Schuylkill County, in equity, in a proceeding by bill of Sep- 
 tember, 1866, in which the St. Clair Coal Company were 
 complainants, and The Mammoth Vein Consolidated Coal 
 Company and William H. Sheaffer, superintendent, were 
 defendants. 
 
 The appeal was by the defendants. 
 
 » Clark V. Wniett, 4 M. R. 629. 
 
 '^Beal del Monte Co. v. Fond Co., 7 M. R. 452. 
 
Mammoth Vein Coal Company's Appeal. 461 
 
 On the 1st of February, 1862, Henry C. Carey and others 
 executed a lease to the firm of William Milnes, Jr„ & Co., in 
 which, besides the right to mine for coal on a portion of " the 
 Saint Clair tract," granted by agreements in 1856 and 1858, 
 they further leased to Milnes & Co. the right to mine and 
 take away the coal in the " Seven Foot Vein and the Big 
 Vein, on the Saint Clair tract, to be bounded southward by a 
 gangway commencing at "—a point described — " on a gangway 
 driven in the Big Vein, westwardly from the new slope where 
 the said gangway first enters the S^int Clair tract from tlie 
 Lee lands, and driven at as near water level as is practicable 
 for the sufficient drainage of the lii.nes; first, southwardly 
 through the upper benches of the Big Yein, and the slate 
 overlaying the same, to and into the Seven Foot Yein, at or 
 about" — another point described — " and thence on the Seven 
 Foot Yein, at such courses and distances as the undulations 
 on the strike of the vein ^ may require the gangway to be 
 driven. The said gangway, when driven to the western line 
 of the Saint Clair tract, to be continued on the Ellmaker tract 
 to and at the same level as the Seven Foot Yein gangway, 
 now at work on the Ellmaker tract at" — a third point de- 
 scribed — "about 220 feet west of the line of tlie Saint Clair 
 tract. And the said gangway in the Seven Foot Yein, when 
 driven through the Saint Clair tract as aforesaid, sliall be the 
 boundary line, north of which this agreement grants to the 
 said William Milnes, Jr., & Co. the right to dig, mine and 
 take away all the coal on the said Saint Clair tract, in the two 
 veins before mentioned." 
 
 On the 17th of March, 1862, the same Henry C. Carey and 
 others leased to Ell Hart for twenty years, with right to as- 
 sign with the assent of the lessors, " All those parts of two 
 veins of coal, known as the Seven Foot Yein and the Big 
 White Ash Yein, on the Saint Clair tract of land, situate, etc., 
 * * and from which two veins of coal Kirk & Baum were 
 recently mining coal by the Mammoth sliaft and the Mam- 
 moth slope, within the following limits, to wit, at the noi-tli- 
 west part of the said tract of land, to the distance of sixty 
 feet from that part of the coal in the said two veins of coal 
 leased bV the said party of the first part to AVilliam Milnes, 
 Jr., and John Milnes, by agreement dated the 1st day of Feb- 
 rnarv, 1862." 
 
462 Injunction. 
 
 On the '29th of March, 1864, Hart, with the consent of hia 
 lessors, assigned to the Saint Clair Goal Company, complain- > 
 ants, " the said lease for the unexpired term aforesaid, except- 
 ing and reserving therefrom and thereout the right to Will- 
 iam Milnes, Jr., & Co., who are also lessees of a part of the 
 Saint Clair tract, or their successors or assigns, to sink their 
 old or eastern slope one hundred yards below the present foot 
 of t!ie old eastern slope aforesaid, and at tlie said depth of one 
 hundred yards to run westwardly on a line parallel with the 
 line located by E. Cleaver and G. K. Smith, July, 1858, to the 
 Ellmaker tract, said depth being sixty-seven yards lower than 
 agreed "in the lease made to William Milnes, Jr., & Co., by 
 the owners of the Saint Clair tract on the 1st day of Febru- 
 ary, 1862, and in consideration thereof the said William 
 Milnes, Jr., & Co., their successors or assigns, are to pay five 
 cents per ton on all large coal, and two and a half cents on all 
 chestnut and pea coal taken from the said sixty-seven yards in 
 depth, unto the Saint Clair Coal Company, in addition to 
 such sum or sums, to be received by the owners of said tract, 
 as may be agreed between them and the said William Milnes, 
 Jr.,&Co.'' 
 
 On the 16th of May, 1864, the same PI. C. Carey and others 
 executed anotlier lease by which, in addition tq, rights theretofore 
 granted to Milnes &Co., they granted "the right to sink tlieir 
 old or eastern slope sixty-seven yards below a point which they 
 agreed to sink their old or eastern slope, according to the agree- 
 ment of February 1, 1863; and they are to drive their gang- 
 way westwardly pn that level, on the course of the vein, and 
 are to strike the eastern line of the Saint Clair tract sixty- 
 seven yards below their present Big White Ash Vein gangway, 
 now on said tract; they to dig, mine and take away all the 
 coal north of tliat line on that level; said gangway to be 
 driven westwardly through said Saint Clair tract, on a line 
 pai'allel with, the line located by Kimber Cleaver and George 
 K. Smith, July, 1858, to the Ellmaker tract; but they shall 
 not and will not take away any coal south of the line above 
 described." 
 
 Milnes & Co. transferred their leases to the defendants, who 
 entered and commenced mining on the tract. 
 
 The bill alleges that the defendants are encroaching on the 
 
Mammoth Vein Coal Company's Appeal. 463 
 
 coal veins demised to the complainants, and taking away large 
 quantities of coal from them; that they have already taken 
 away about 40,000 tons; that "in consequence of these en- 
 croachments and trespasses, the shaft workings of the plaint- 
 iifs can not, in future, be operated without leaving ail the 
 coal now standing between the said shaft workings on the 
 Seven Foot Vein and the gangway of the defendants as a 
 barrier which may prove insuflBeient against the water in de- 
 fendants' mines, the distance being only two hundred feet 
 from said workings to said gangway. Besides the danger 
 from water and the probability of a crush, the direct, imme- 
 diate and certain effect of these trespasses is to reduce the 
 future productiveness of plaintiffs' colliery one half, or at least 
 fifty cars per day. 
 
 "That the defendants are driving their said gangway to the 
 Ellmaker tract, adjoining the Saint Clair tract, with all possible 
 speed and despatch. The said gangway has been driven in a 
 southwesterly direction, instead of a westerly direction, from 
 the point of commencement, as required by their lease, on a 
 dip of five degrees, a distance of one hundred yards, thereby 
 encroaching upon and destroying a large and valuable portion 
 of the demised premises of the plaintiffs, and greatly endan- 
 gering the shaft workings aforesaid; that the plaintiffs, in or- 
 der to keep up the productiveness of their colliery to an ex- 
 tent commensurate with their outlay of capital and covenants, 
 will be obliged to sink a new slope below their present shaft. 
 The defendants have also encroached on the Big "White Asli 
 Vein from the bottom of their eastern slope, by driving their 
 gangway south over the line described in the transfer ot lease 
 aforesaid to the plaintiffs; * * that the damages, present 
 and prospective, will amount to a large sum of money." 
 
 The bill prayed : 
 
 1. That the defendants may be restrained, by preliminary 
 injunction till hearing, and perpetually thereafter, from work- 
 ing the Seven Foot and Mammoth Veins of coal, or portions 
 thereof demised to the plaintiffs. 
 
 2. That defendants may be required to account for all coal 
 taken away, and for damages done to the plaintiffs' colliery. 
 
 No answer was filed; the case was heard on affidavits. 
 The defendants' working was upon upper levels in the same 
 veins as comyjlainants'. 
 
464 Injunction. 
 
 The witnesses for complainants stated that defendants had 
 taken out about 40,000 tons of coal from the portions of the 
 veins leased to complainants; that workini^ of defendants pre- 
 vented complainants working on one of their gangways, for, 
 if they did, it would not leave pillar enough to keep the water 
 up; that the distance between the works was 100 or 150 feet; 
 if tlie workings should be stopped and water accumulate there 
 would be danger of a crush ; that there was no such danger at 
 present; that complainants could not get coal above defend- 
 ants' gangway if the defendants continued their workings; if 
 the gangway should be driven into the Ellmaker tract it 
 would draw the water from that and other tracts, and there 
 would be a danger of filling complainants' mines with water; 
 the witnesses also testified as to the workings of respondents 
 being an encroachment in particulars detailed, and generally. 
 
 The clerk of defendants testified to paying complainants 
 for coal taken, and of no complaint of improper working hav- 
 ing been made. Engineers and other witnesses of defendants 
 testified that it was impossible, on account of the formation 
 of the veins, to drive the gangways otherwise than was done; 
 that from the fall of 1865 to June 3, 1866, the gangways had 
 been continuously driven, and during that time had been in- 
 spected regularly by the engineer and agent of the lessors, 
 and that he did not give any intimation to the superintendent 
 that he was driving in the wrong place, but had told him as 
 to one that the defendants were the only parties that could 
 take coal out at that point; that stopping the gangways and 
 the workings on them in dispute would reduce the capacity 
 of the colliery 170 tons a day, besides prevjnting them from 
 getting coal from other coal tracts. It wis also testified that 
 the tunnel was driven at as near a water level as practicable 
 for the proper drainage of the mines; that where the gangway 
 is now driven is the only point at which it is possible to work 
 the " Seven Foot Vein." 
 
 On the hearing, the court appointed Henry Pleasants and 
 Stephen Harris, two mining engineers, examiners,'" to exam- 
 ine the workings of the respondents * * for the parpose 
 of ascertaining the course oi the Mammoth Yein," etc., * * 
 "according to the lease of May, lS6i, and to report their 
 conclusions to the court, in writing, together with any remarks 
 they may be pleased to make upon the subject." 
 
Mammoth Vein Coal Company's Appeal. 465 
 
 The examiners made a report, with an accompanying map, 
 which it is not necessary to detail under the views of the Su- 
 preme Court. 
 
 On the 11th of October, 1866, the court (Eyon, P. JO 
 decreed — 
 
 "That the Mammoth Yein Consolidated Coal Company, 
 respondents, be enjoined and restrained (until further ordered) 
 from further driving westward the gangway on the Seven Foot 
 Vein of coal toward theEllmaker tract, which said gangway is 
 south of and below the point'C, mentioned in the lease dated 
 1st February 1862, to William Milnes, Jr., and John Milnes, 
 as lessees, and transferred to respondents, or from mining or 
 taking away coal mined therein, west of the point designated 
 
 D, on the map, to be filed herewith; and also from driving the 
 gangway farther east on said vein from the point designated 
 
 E, on said map, or from mining or taking away coal mined 
 therein; and also from further driving the gangway on the 
 Mammoth Vein from the foot of the new slope (driven 
 200 feet, under lease of 16th May, 1864) beyond the point 
 designated I, on said map (denoting the face of the gangway), 
 or from mining coal therein south of the point represented 
 on the said map by dotted lines (which said lines were made 
 upon said map by Henry Pleasants and Steplien Harris to 
 denote the course of the vein trom tlie foot of the slope); and 
 said respondents shall not take away any coal south of the 
 line designated by said dotted lines, and shall drive their 
 gangway according to the course indicated by said dotted lines 
 and the report of said Pleasants and Harris, on north of said 
 dotted lines, if practicable, so as to reach the point J, (as shown 
 on said map), by the most direct and feasible course, on the 
 course of the vein, from the point in the present gangway, 125 
 feet from the foot of the slope, according to the terms of the 
 aforesaid lease." 
 
 The error assigned was granting a preliminary injunction. 
 
 F. B. GowEN and J. Bannak, for appellants. 
 
 The positions taken by appellants were — 
 1. That the gangway driven toward the EUmaker tract 
 is not in violation of the terms of the lease of February 1, 1862. 
 
 VOL. VII.— 30 
 
466 iNJUNCTIOlf. 
 
 2. That, admitting that the gangway is further south 
 than the course prescribed by the lease, all damage which could 
 possibly result to the plaintiffs in consequence has been already 
 sustained, and there is no such futjire or continuing injury to 
 be apprehended as would justify a court in awarding a pre- 
 liminary injunction. 
 
 3. That the plaintiffs have no right to a decree enjoining 
 the defendants from raining upon lands to which the plaint- 
 iffs have neither title nor claim of title. 
 
 4. That the plaintiffs have an adequate remedy at law for 
 all injuries sustained by them, and that their bill in equity can 
 not be maintained against tlie defendants, who are in posses- 
 sion under claim of title; and cited Lowndes v. Bettle, 4 Am. 
 Law. Eeg. 169. 
 
 B. W. Gumming, for appellees. 
 
 The only lawful possession the appellants had was of those 
 portions within their proper boundaries. "What constitutes 
 possession is a question of great importance: Mitchell -v. Dors, 
 6 Ves. 147. Where a trespasser works a mine to the injury 
 of the owner an injunction will be granted: 2 Story^s Eq. 
 § 929; Brown v. Wew, 5 S. & E. 402; Denny v. Brtmson, 5 
 Casey, 382; Soheets's Appeal, 11 Id. 95. In this case the right 
 can be ascertained. 
 
 The opinion of the court was delivered, February 14, 
 1867, by Thompson J. 
 
 We have examined tlie afBdavits and other proofs ex- 
 hibited; pro and con, by the parties on the hearing of the 
 motion for a preliminary injunction in this case, and the 
 order or decree made in granting it. We can not but regard 
 the decree as much more in the nature of a final than a pre- 
 liminary decree, for it not only enjoins, but directs what the 
 defendants shall do. Indeed, the contest before the court 
 seems to have left out of sight the true nature and object of 
 the writ of injunction applied for, and became involved in 
 ■questions about the rights of the parties under the terms of 
 their respective leases. If these were in dispute, it is obvious 
 
Mammoth Vein Coal Company's Appeal. 467 
 
 no injunction could begrauted until questions respecting those 
 rights were settled at law or in equity. It ought not to bo 
 forgotten that a preliminary injunction is a restrictive or pro- 
 hibitory process, designed to compel the party against wliom 
 it is granted to maintain his status merely until the matters 
 in dispute shall, by due process of the courts, be determined; 
 the sole foundation for sucii an order being, in addition to 
 cases of the invasion of unquestioned rights, the prevention 
 of irreparable mischief or injury. As a preliminary injunc- 
 tion is in its operation somewhat like judgment and execution 
 before trial, it is only to be resorted to from a pressing neces- 
 sity to avoid injurious consequences which can not be repaired 
 under any standard of compensation. It is therefore a pre- 
 ventive remedy only. The number of tons of coal which it 
 was alleged by the plaintiff the defendants had mined and 
 taken and claimed, was a past transaction, and could not be 
 touched by a preliminary injunction. So also, if the direc- 
 tion of. the defendants' gangway did cut off coal from the 
 plaintiffs, which, but for it, they might have taken out, this, 
 like the other cause of complaint, was also a past transaction, 
 and not to be redressed by preventive process. 
 
 Nor do we think the peril from water, if tlie defendants should 
 proceed into the Ellmaker tract with their gangway, was shown 
 to be so imminent as to require thestoppageof thedefcndantsin 
 their progress toward that point. At most it was speculative; 
 contingent on the-defendants ceasing to operate under their lease. 
 But it was not shown that they meditated or threatened this. 
 Had it been made manifest that the consequence of the de- 
 fendants' operations would have the effect of letting the water 
 in large quantities into the plaintiffs' mine, it would assuredly 
 have been proper to have enjoined them from proceedini', 
 even although they were operating exactly witiiin the terms 
 of their lease. But that did not appear. Protection against 
 the contingency which the plaintiffs seem to have feared, 
 . namely, the drowning out of their works by the cessation of 
 the defendants to mine, can no doubt be guarded against on 
 final hearing, if it exist, when all the facts in exact form will 
 be before the court; but threatened irreparable mischief from 
 this cause was not shown to exist or reasonably to be appre- 
 hended,, so as to justify the granting of the preliminary 
 
468 Injunction. 
 
 injunction. Indeed, the defendants frave a great preponder- 
 ance of proof to show that the plaintiffs all the while knew 
 of their operations, the direction and extent of their work, 
 and made no objection. Even if the matter of fact had been 
 80 balanced in the proof as to have left it in doubt, this would 
 have been sufficient to have prevented the granting of an 
 injunction, for the plaintiffs should have made known their 
 objections and put the defendants on their guard against ex- 
 pending their money on what they meant should not be real- 
 ized by them. It may be that on final hearing grounds for 
 intervening as prayed, may be made manifest; but about this 
 we express no opinion. We only say that the case when 
 heard did not present such an aspect as required the highest 
 exercise of the chancellor's power to restrain the defendants. 
 
 The statute under which this appeal was taken is an experi- 
 ment in this State, and will assuredly be fraught with bad and 
 annoying consequences, in the increase of expenses in pro- 
 ceedings in equity, incident to double hearings and arguments 
 in the courts below, and in this court, in all preliminary 
 decrees for injunctions, unless the courts are careful to grant 
 them only where it clearly appears that the purposes of such 
 writs are plainly proper, viz., to prevent irreparable mischief. 
 That was not the case in our opinion in this instance, and we 
 must therefore reverse the decree. 
 
 And now, to wit, February 14, 1867, the order and decree 
 of the 11th of October, 1866, entered in the court below at 
 the instance of the plaintiffs against the defendants in this 
 case, is reversed, annulled and set aside, together with the writ 
 issued in pursuance thereof, at the cost of the appellees. 
 
 Beversed. 
 
MuNSON V. Teyon. 469 
 
 MUNSON ET AL. V. TeYON" ET AL. 
 
 (6 Philadelphia, 395. Supreme Court of Pennsylvania, 1867, at Nisi Prius.) 
 
 Injauction when title disputed. A destructive trespass will be restrained 
 by injunction, although an adverse title be asserted by the party com- 
 mitting the trespass. 
 
 • Jurisdiction beyond county. A court of equity, having the parties within 
 its jurisdiction, may restrain by injunction a trespass upon lands lying 
 in another county. 
 
 Ejectment. A party in possession ought not to be compelled to bring eject- 
 ment. 
 
 ' Incidental grounds for injunction. Collusion with tenant, abuse of proc- 
 ess and purchase of unwarranted title for small consideration, considered 
 incidentally, upon application for injunction. 
 
 Motion for a special injunction. 
 
 Strong, J. 
 
 The case as exhibited by the bill, answer, affidavits and ex- 
 hibits, is this: The complainants claim to be the owners of 
 six contignous tracts of land situated in Schuylkill county. 
 These tracts are coal lands, and prior to the year 1853 they 
 were almost entirely, if not entirely, uncultivated. In that 
 year the plaintiifs, having previously acquired a title thereto, 
 demised the entire body, together with other tracts, nnto 
 one Jacob Kohler, that he should hold the same as their tenant 
 for two years, he yielding and paying a rent to be measured by 
 the quantity of coal that might be mined, dug or sold and car- 
 ried away. The lessee bound himself not to suffer any coal 
 to be dug, mined or sold and carried away from the premises 
 during the term by any other person or persons except for him 
 and under his directions, and bound himself that he would 
 protect the land against any trespasser; that he would use 
 and occupy a stone dwelling house on the lands, previously 
 erected by the pla,intiffs, and that he would clear and make fit 
 for tillage one acre of land near the said dwelling house each 
 year during the terra. In pursuance of this lease Jacob Koh- 
 ler went into possession of the lands in 1853. He occupied 
 the dwelling house, and either he or his sub-tenants, or other 
 tenants of the plaintiffs, have occupied it ever since. In the 
 
 'See West. Union Tel. Co. v. West, d- Atlantic R. E., 8 Baxt. 54 (Teijn.). 
 ' Lt/on V. Woodman, 7 M. R. 494. 
 
470 Injunctioit, 
 
 fall of 1864 the plaintiffs caused to be erected a frame dwell- 
 ing house upon each of the six tracts, except the one on wliich 
 the stone house stands, and they demised all the tracts to ten- 
 ants who then entered and who have been in possession by 
 actual residence ever since. The possession of the six tracts 
 has thus been in the plaintiffs by their tenants from the year 
 1853, nnitjterrupted, except so far as the acts of the defendants 
 disturbed it in 1865. No considerable part of the lands has 
 been cleared, however; near the stone house about twenty-six 
 acres are under cultivation, and about an acre or very little 
 more around each of the frame dwellings. But from 1853 to 
 the present time, all the tracts have been assessed to theplaint- 
 tiffs as seated, and they have regularly paid the taxes without, 
 so far as it appears, any adverse claim of right to the lands 
 until the month of April, 1865. 
 
 About that time some of the defendants, claiming to be les- 
 sees of George K. Tryon, another defendant, began to make 
 surveys upon the lands, and threatened to sink shafts to the 
 coal measures, and open mines thereon, erecting breakers and 
 taking away coal. By the lease which they took from Mr. 
 Tryon, they bound themselves to build houses upon the land, 
 not less than six in one hundred days, one house on each of the 
 six tracts of land, and to put tenants in them, subject to the 
 approval of their lessor. They were authorized by the lease, 
 so far as it could authorize them, to cut timber on the land for 
 house building and for mining props, and tlie lease even con- 
 templates that they may exhaust the whole timber. It also 
 authorizes them to construct railroads on the property, to dig 
 and mine stone coal on all the tracts, either above or below 
 the water level, and it binds the lessees to mine, raise and 
 send to market not less then two hundred and forty thousand 
 tons each year, during the twenty years for which the demise 
 was made. 
 
 I am now moved to enjoin the defendants against these acts 
 thus threatened. The plaintiffs insist that they are entitled to 
 protection in their possession by their tenants; that the acts 
 complained of are trespasses in the nature of waste; that tbey 
 have no other adequate remedy than an injunction, and that 
 a conrt of eqnity will interfere to prevent such acts as are 
 threatened until a party attempting thus to enter by force and 
 
MuNsoN V. Teyon. 471 
 
 commit acts which would be waste if done by one in privitj 
 of estate with them, shall vindicate his right thus to act bj 
 action at law. 
 
 Before procee(^ing to consider the question whether such a 
 cause is presented as justifies my interference by injurtotion, 
 I have to dispose of an objection to the jurisdiction of the 
 court. The defendants urge that the Supreme Court sitting 
 in Philadelphia has no rightful jurisdiction of the parties de- 
 fendant. It is said Oliver, Fegely, Lomison and HoflF are 
 residents of Schuylkill county, and that the subpoena was 
 served upon them there. If the fact be as asserted, I do not 
 perceive that it is any objection to my taking cognizance of 
 the bill. All the acts complained of were done or threatened 
 at the instigation of George K. Tryon, and he is a resident of 
 Philadelphia, and he was served with process here. In my 
 opinion, he is a principal defendant, and therefore, under the act 
 of 1859, P. L. 387, Sec. 19, a subpoena was rightfully sent for 
 service on the other defendants in Schuylkill county. But if 
 it were not so, they have appeared and put in answers to the 
 bill without making any objection to the service. It is then 
 no longer in their power to object that I have not jurisdiction 
 over the parties. In addition to this, all the defendants now 
 residents in Philadelphia upon whom service was made else- 
 where, have organized themselves into a corporation, and that 
 corporation has been /made a party. Over it, it can not be 
 doubted this court has jurisdiction, at least for some pur- 
 poses. Whether that is enough to justify my interference in a 
 matter not relating to the internal policj' of the corporation 
 at the suit of one claiming adversely, I do not care now to de- 
 termine, for it is sufficient that all the defendants have sub- 
 mitted to the jurisdiction of the court. 
 
 It is argued, however, that even if there is jnrisdiction over 
 the parties, there is none of the cause. I am moved to en- 
 join against the commission of acts in^ the nature of waste 
 upon lands ontside of this county. But if I have jurisdiction 
 of the persons of the defendants, it can not matter that the 
 lands are located in another county. My order or decree af- 
 fects the defendants personally. It is only indirectly and 
 through the defendants that it afifeets the lands. It has often 
 been decided that when a chancellor obtains jurisdiction over 
 
472 Injukction. 
 
 a party, he may make a decree that affects lands even in a for- 
 eign country. He may enforce trusts or conveyances, or en- 
 join against foreclosure of mortgages: Story's Eq. Jur. Ch. 
 18, Sec. 743-4; Massie v. Watts, 6 Cranch, 148; Beckford v. 
 Kemble, 1 Sim. & Stuart. It is true that to justify the court 
 in interfering and exercising a jurisdiction in cases relating to 
 lands where the court can not send its process, the relief 
 sought must be such as the court is capable of administering 
 in the case before it. For this reason it was ruled by Judge 
 King, in the Court of Common Pleas of Philadelphia, that 
 the court had no jurisdiction of a bill complaining that the 
 defendant had set up and maintained a nuisance affecting 
 plaintiff's land in Montgomery county. The reason assigned 
 for this ruling was, that no obedience of the defendant or act 
 of his could execute the necessary decree. The wrong done 
 was the creation of a nuisance. The only remedy was abate- 
 ment, and the common pleas could not send process to abate 
 the nuisance. The case does not decide that a court of equity 
 is powerless to restrain a threatened injury to lands outside 
 of its jurisdiction by parties within its control and subject to 
 its process. But jurisdiction is entertained in equity over 
 extra-territorial torts, when the court has full power to exe- 
 cute its decree, where the appropriate decree operates upon the 
 future conduct of the defendant and not directly upon the 
 property threatened to be injured. When a nuisance has been 
 set up and abatement is decreed, in order to carry the decree 
 into effect, a writ of assistance or other similar process may 
 be necessary. Such a writ can not be sent into a foreign ju- 
 risdiction, and, therefore, in such a case, because a court of 
 equity can not complete its work, it will not commence. But 
 the case I have before me is no such case. There is no nui- 
 sance to be abated. Nothing is to be undone. The bill seeks 
 only to prevent a future wrong. All that is needed or asked 
 is to reach the conscience of the defendants. For this reason 
 I think that, having jurisdiction over the persons of the de- 
 fendants, 1 have also jurisdiction of the cause. 
 
 I come then to the main question in the case. The acts 
 threatened by the defendants, if done by strangers to the own- 
 ership of the land, would be trespasses of no common enor- 
 mity. They are cutting the timber (which, in order to carry 
 
MuNsoN V. Teyon. 473 
 
 out the other purposes avowed, may be carried to the extent 
 of entirely denuding the lands), building railways, opening 
 mines and taking away immense quantities of coal. That 
 such acts would amount to waste, if done by persons holding 
 under the plain tiifs, or in privity with them, is indubitable. 
 They would be waste of the most flagrant character, which a 
 chancellor would hasten to prevent. When done by persons 
 not in privity of title with the plaintiff's, they are technically 
 not waste, but trespasses in the nature of waste. They tend 
 to the permanent injury or destruction of the lands. 
 
 Without attempting to review the reported cases upon the 
 subject, I think it can not be denied there has been an in- 
 creasing tendency in courts of equity for many years to dis- 
 regard the technical distinction between waste and trespasses 
 in the nature of waste, and to interpose by injunction against 
 the latter, as well as the former, whenever such interference is 
 necessary to prevent permanent injury. Injunctions against 
 such trespasses have become a common exercise of a chancel- 
 lor's power. 'It is true they are not often granted against a 
 defendant in possession, at the suit of persons claiming title, 
 though out of actual possession, yet they are not always de- 
 nied. Two reasons may be assigned for this. There is always 
 2iprvma fades of right in a person having possession, and the 
 person out of possession and claiming adversely may bring 
 ejectment, and, with us at least, sue out a writ of estrepement, 
 thus protecting the property from spoliation. But when the 
 defendant is out of possession, and enters or threatens to enter 
 upon lands in the possession of the plaintiff, and to commit 
 acts in the nature of waste, like cutting timber, opening 
 mines, or'carrying away coal or minerals, parcel of the estate, 
 equity is more ready to interfere. 
 
 The difficulty in this case is that I am asked to enjoin 
 against parties out of possession indeed, but claiming title to 
 the lands adversely to the complainants. It is insisted that 
 an injunction will never be granted where the plaintiff's title 
 to the land, upon which the injury is done or threatened, is 
 denied, and where the defendant sets up an adverse title in 
 himself. I think, however, this assertion is too broad, and 
 that in all its extent it is not sustained by the decisions. I 
 agree that wlien a defendant acts or proposes to act under an 
 
474 Injunction. 
 
 assertion of right, it must be a pccnliar case wliioli will justify 
 an injunction against Lis doing tliat which, if he be the real 
 owner, wonld be the legitimate exercise of a right. But the 
 authorities do convince me that in such a case a court of equity 
 will interfere even against one who claims title, and tliat it is 
 not in every case an insuperable bar that the right of a plaintiff 
 in possession is disputed. The earliest case that has fallen 
 nnder my notice is one cited in Mogg v. Mogg, 2 Dickens, 670, 
 as having been decided by Lord Camden. There a lord of a 
 manor filed his bill to stay waste against defendants, who 
 claimed a right to estovers, and under that right cut down tim- 
 ber in one day to the value of £400. Lord Camden granted 
 the injunction. The defendants desisted, but their attorney 
 advised other tenants of the manor to cut timber, whereupon 
 Lord Camden granted an injunction to stay waste against per- 
 sons not parties. In remarking upon this case Lord Thttelow 
 said there was a right to something in the defendants, though, 
 perhaps, they carried it beyond what such right went to, and 
 that until such right was determined, it was very proper to 
 stay them from doing an act which, if it turned out they had 
 no right to do, would be irreparable. It is impossible to ex- 
 amine the case without noticing that an injunction was 
 granted against defendants' claiming a riglit to do what they 
 were enjoined against. The chancellor did not undertake to 
 decide that they had transgressed their right and acted beyond 
 it, that is, without right. It was sufficient that perhaps they 
 had done so, and the injury was irreparable. Moreover, even 
 if the original defendants had gone beyond the right they 
 claimed, an injunction was also granted against others not 
 original parties, thoui,4i there is nothing to show'that they 
 abused the right claimed. I shall not go over all the cases. 
 The principal ones are Rohmson v. Lord Byron, 1 Brown's 
 Cas., c. 587; Orey v. The Duke of Northumberland, 13 Ves. 
 236; Kinder v. Jones, 17 Ves. 110; Thomas v. Oakley, 18 
 Yes. 184, and Loundes v. Bettle, 10 Jurist., N. 8., 226. 
 
 So also, in Haigh v. Jagger, 2 Coll. Cli. c. 231, Vice Chan- 
 cellor Knight Beitce, (in commenting upon Smith v. Collyer, 
 8 Ves. 89, in which case Lord Eldon had refused an injunc- 
 tion sought by 'infants in possession, by their guardians, 
 against a defendant claiming as heir), remarked that he was 
 
MuNSON V. Teyon. ' 475 
 
 not satisfied that under the same circumstances the court 
 would not now (in 1845), have granted an injunction. All 
 these cases are reviewed in Loundes v. Settle, bj Yice Chan- 
 cellor KiNDEESLT, and in view of them and many others, one 
 of the conclusions to which he comes is that when a plaintiff 
 is in possession, and the acts complained vof are committed by 
 a person claiming under title adverse to that of the plaintiff, 
 the tendency of courts of equity is now to grant the injunc- 
 tion, unless vthere are special reasons why it should not be 
 done. I can not say that I am prepared to assent to all the 
 conclusions reached in Loundes v. Bettle, or even to the one 
 I have mentioned to its fullest extent. But I do think there 
 is an increasing disposition in courts of equity to prevent 
 wftste or partial destruction of propertj' by persons out of pos- 
 session, even though done or threatened under an assertion of 
 title. And why should there not be? The law cangive no 
 adequate remedy. The action of a chancellor is prompt. 
 The process of the law is slow. Acts of a defendant may 
 work entire destruction, and the law can at most but enforce 
 compensation. It can not replace the property destroyed. 
 Shall it be permitted that property, the title to which is in 
 dispute, may be destroyed either wholly or partially by one 
 who possibly has no right? If he be out of possession ought 
 lie not to be required to vindicate his right before he shall ruin 
 tlie subject of controversy? He has power to restrain the per- 
 son in possession until the right is determined. This he can 
 do • by ejectment and estrepement. Are the rights of the 
 person in possession against him any less than Iiis riu;ht 
 against that person, so far as relates to the preservation of the 
 property from irreparable Injury? 
 
 I think then, by the cases cited, as well as by the language 
 of judges in several other cases, I am justified in asserting at 
 least so much as this, that a defendant does not of course par- 
 alyze the arm of a chancellor when he asserts that the acts 
 complained of as done by him, are done under a claim of 
 right or title in himself. If he is out of possession he may be 
 enjoined though he claims adversely to the plaintiff. Let it 
 be that the circumstances must be peculiar. Tlie right to 
 judge of those circumstances, and to interfere if necessary tor 
 the preservation of the property, is in courts of equity. AVhat 
 
476 ' iNJUNCTIOir. 
 
 the peculiar circumstances must be, it is of course impossible 
 to define. They will differ in each case. Doubt in tiie mind 
 of the judge whether a defendant is not transgressing tlic 
 right claimed by him, seems to be one. Attempting collii- 
 ions with the tenants of the plaintiff is another. Inability 
 op the part of the plaintiff to resort to law is another. What- 
 ever will satisfy a court that the threatened mischief ought to 
 be prevented until the title bo ascertained, warrants interfer- 
 ence to prevent destruction of the subject of dispute until the 
 controversy be determined. 
 
 This brings me to consider the circumstances of the pres- 
 ent case. I have already noticed that the plaintiffs went into 
 actual possession of the lands in 1853. They took possession 
 under a claim of riglit at that time undisputed. Their pos- 
 session was actual as distinguished from tliat which is merely 
 constructive. Their leases to their tenants described the lands 
 by old and defined boundaries. I say their possession was 
 actual. True, there was cultivation or inolosure only to a 
 small extent, but there was residence, with a claim of riijlit to 
 the whole, and payment of taxes for the whole, continuous for 
 a period of at \oast fourteen years. It can not be doubted that 
 had this possession continued for a period of twenty-one years 
 uninterrupted, it would have ripened into a complete title un- 
 der the Statute of Limitations. In addition to this the plaint- 
 iffs, in October or November, 1864, erected small dwelling 
 houses upon each of the six tracts, and put tenants into them 
 each to hold possession of the entire tract upon which, bis 
 dwelling house was located. 
 
 Now, while I do not intend to enter at all into tlie consid- 
 eration of the plaintiffs' title, or that under which the defend- 
 ants claim, I think itKjan not be doubted that there is a, prima 
 fades of right in the plaintiffs. They are in a better condi- 
 tion than the defendants in this particular, at least, that they 
 are in possession, and that no attempt was made to disturb 
 their possession until shortly before this bill was tiled, in the 
 spring of 1865. 
 
 If now I look at the right claimed by the defendants, I find 
 it a title not asserted from the year 1797 down until 1865. 
 In 1863 it was bought for a sum of money bearing no con- 
 siderable proportion to the acknowleilged value of the land. 
 
MuNsoN V. Tkyon. 477 
 
 The purchaser took a deed, expressly excluding all warranty 
 of title. He then conveyed to George K. Tryon, who 
 demised to the defendants, Lomison, Oliver, Hoff and Fegely, 
 " to the extent of the lessor's right and interest," stipulating 
 against any covenant for quiet enjoyment. It is under this 
 lease that the acts- of waste, or trespass in the nature of waste, 
 are threatened to be done. 
 
 While I express no opinion respecting the validity of this 
 title, while it may prove good notwithstanding the small 
 price paid for it, I can not close my eyes to the facts that its 
 assertion has been long delayed, and that it is not put for- 
 ward with confidence. There are evidences of distrust, both 
 in the deed from Emily Hollingsworth in 1863, and in the 
 leases to Lomison, Oliver, Hoff and Fegely in 1865. Those 
 who claim under it ought not, in my judgment, to be per- 
 mitted to do acts upon the property which the law recognizes 
 as waste or injury to the inheritance, until -they have main- 
 tained their right at law. 
 
 It is also an important consideration with me that there 
 is no difScnlty in the way of the defendants bringing an 
 action at law and testing the value of their asserted title. 
 They are out of possession. They can bring ejectment, and 
 during its pendency prevent any acts of waste or destruction 
 being done by these plaintiffs or the tenants holding under 
 them. On the other hand the plaintiffs can bring neither 
 ejectment nor trespass, for the lands are demised to tenants. 
 Even if tliey could bring ejectment, it would be at the cost 
 of .confessing themselves out of a possession they have main- 
 tained unchallenged for twelve years, and could they maintain 
 trespass it would be an inadequate remedy. It would not 
 protect the property from that which the law treats as an 
 irreparable injury, and it might not even determine the title. 
 
 I attach also some importance to the conduct of some of 
 the defendants, or rather the means adopted by them to carry 
 out their plans. There is considerable evidence of attempted 
 tampering with the tenants of the plaintiffs, to induce them 
 to refrain from that resistance to the acts of the defendants 
 which duty to their landlords required them to make, and 
 there is also evidence that the defendants made a fraudulent 
 use of criminal process against the tenants, in order that sur- 
 
478 iNjUNCTioiir. 
 
 veys of the lands might uninterruptedly be made, preparatory 
 to the acts of trespass or waste threatened. These are cir- 
 cumstances of the case which I ought not to overlook. 
 
 In view of all these considerations I think a case is pre- 
 sented that justifies and demands my interference by injunc- 
 tion. 
 
 Let an injunction be prepared in accordance with the prayer 
 of the bill, to continue until the defendants shall maintain 
 their alleged rights to the property by action at law, or until 
 further order. 
 
 Lady Beyan Got.d and Silver Mining Company v. 
 Lady Bkyan Mining Company et ai/. 
 
 (4 Nevada, 414. Supreme Court, 1868.) 
 
 ' Effect of answer. There are exceptions to the rule that the court will not 
 decree an injunction where the material averments of the bill are trav- 
 ersed by the answer; but no special reason for exception appears in this 
 ca^e. 
 
 Uotice required hy statute. An order refusing an injunction will not be 
 disturbed on appeal if the record fails to show a notice of the application 
 or an order to show cause as required by statute. 
 
 ' Showing: necessary on appeaL To entitle an appellant to a reversal of an 
 order or judgment of a lower court he must make such an aflSrmative 
 showing as will negative at least the probability of the correctness of 
 Buchorderor judgment, for the presumption is in favor of its regularity. 
 
 Practice as to restraining: order. The notice required by statute of an 
 application for injunction does not apply to the case of a temporary re- 
 straining order, nor is an appeal authorized from an order granting or 
 refusing the latter. 
 
 Appeal from the District Court of the First Judicial Dis- 
 trict, Storey County. 
 
 Quint & Hakdy, for appellant. 
 
 Mesick & Seely, for respondents. 
 
 By the Court, Lewis, C. J. 
 
 > U. 8. V. Parrott, 7 M. R. 336. 
 
 ^New Boston Co. v. Pottsville Co., 5 M. R. 118. 
 
Lady Beyan M. Co. v. Lady Bkyan M. Co. 479 
 
 This is an appeal from an order refusing an injunction. 
 The record presented to us is made up of the summons, com- 
 plaint, answer, order denying the injunction, and tlie notice 
 of appeal, and upon it only one question is submitted for de- 
 termination, that is, whether the court below erred in refus- 
 ing the injunction upon the bill and answer. We conclude 
 unliesitatingly that it did not. The complaint probably 
 makes out a case entitling the plaintiff to the issuance of the 
 writ, but all its material alIe;j;ations are denied by the sworn 
 answer of the defendants. Such being the case the writ was 
 properly refused, for, as a general rule, it is'not granted upon 
 a pleading alone, whose material averments are denied by the 
 pleading of the opposite party: HiU. Inj., Sec. 37; Gardner 
 V. Perkins, 9 Cal. 553. There are exceptions to this rule, it 
 is true, but no special reason is given or appears why an ex- 
 ception should be made in this case. 
 
 There is also another reason why this order appealed from 
 should not be revei'sed. Section 6, Stat. 1864:, 75, declares 
 that no injunction shall be granted unless after notice, or 
 after an order to show cause. The record in this case does not 
 show that this reqnirement of the law was complied with by 
 the appellant, nor does it appear that it was not because of a 
 failure in that respect that the, writ was refused. If the notice 
 was not given, and no order to show cause had been made, the 
 court could not properly have granted the relief sought. As 
 it is not shown that either was done, the order denying the 
 injunction can not be disturbed, for it may have been upon 
 that ground alone that it was refused. To entitle himself to a 
 reversal of an order or judgment of a lower court, the appel- 
 lant must always make such an aflBrraative showing in the 
 appellate court as will negative at leastthe probability of the 
 correctness of such order or judgment, for that presumption is 
 in favor of its regularity. 
 
 The section of the act already referred to authorizes the 
 issuance of what is called a temporary restraining order, to 
 continue during the pendency of the application for the in- 
 junction, without previous notice, or an order to show cause, 
 but it is only from the order refusing or granting the latter 
 that an appeal seems to be authorized. Such is the character 
 of the order appealed from in this case; hence the notice or 
 
480 Injunction'. 
 
 order to show cause should necessarily have preceded the 
 
 granting of the writ. 
 
 The order must he affi/rmed. 
 
 Whitman, J., did not participate in the foregoing decision. 
 
 The Schuylkill and Dauphin Improvement and 
 Railroad Company v. Schmoele et al. 
 
 (57 Pennsylvania State, 271. Supreme Court, 1868.) 
 
 ' Lessees enjoined and still held to their covenants. The lessees of a coal 
 mine, under covenants to pay royalty in installments, in advance, upon 
 120,000 tons of coal, whether raised or not, to do dead work, etc, with 
 a right of entry for breach, were enjoined from work under writ of es- 
 trepement, at the suit of a third party. The lessors then gave notice of 
 forfeiture for breach of covenants. The lessees prayed an injunction, 
 alleging the estrepement against them as an excuse for non-pnyment of 
 rent, etc., but the court held that they were still liable under their lease; 
 that the writ of estrepement did not work an eviction, and refused the 
 prayer of the bill. 
 
 Lease implies covenant for qniet enjoyment, bnt not ag'ainst tort- 
 feasors. Every lease implies a covenant for quiet enjoyment. But it 
 extends only to possession, and its breacl^ arises only from eviction 
 by means of title. It does not protect against entry and ouster by a tort- 
 feasor; nor even against the assertion of the right of eminent domain. 
 
 Idem— An action of ejectment followed by a writ of estrepement is no 
 breach of the covenant; and this result is not produced until it reaches 
 actual or virtual eviction. 
 
 This was a bill in equity, filed by William Schmoele and 
 Henry Schmoele against The Schuylkill and Dauphin Im- 
 provement and Railroad Company. 
 
 The bill charges that the plaintiffs, by lease of February 
 2, 1864, rented from the defendants, for fifteen years, with 
 privilege to the lessors to renew for ten years, the exclusive 
 right of mining coal on a tract of land in Schuylkill county, to 
 cut timber i'or improvements which were to be erected at the 
 lessee's expense, the rent to commence October 1, 1864, at 
 which time the lessees' improvements were to be completed; 
 
 ' See TiUy v. Mayers, 4 M. R. 320: Walker v. Tucker, 70 111. 527; Post 
 Lease; Shaw v. Utenton, 2 H. & H. 858; Post Lease. 
 
Schuylkill and Dauphin Co. v. Schmoele. 481 
 
 they agreed to mine at least 80,000 tons of coal from the 
 Mammoth vein, and 40,000 tons from the Bear Gap vein; 
 they were to pay rent at a rate per ton specified in the lease, 
 and they were to pay in advance for 120,000 tons of coal, 
 whether raised or not; that if the veins should prove so faulty 
 as that the lessees could not take out the full quantity, they 
 should be released to the extent of the faults, provided they 
 should drive a suflScient number of gangways, etc., and if the 
 rent should be in arrears at any time for two months, the 
 lessors might make distress, etc.; for breach by the lessees of 
 any of their covenants the lease should be forfeited, and the 
 lessors might re-enter. 
 
 The bill avers the making of extensive improvements by 
 the lessees; that the Philadelphia and Reading Railroad 
 Company agreed to make a branch road to the mines; that 
 they afterward declined to do so, because one Munson had 
 informed them that he claimed a large portion of the land 
 ISased to the plaintiffs, and tbey were thus prevented from 
 transporting large amounts of coal, etc. ; that in October, 1864, 
 Munson and others instituted an action of ejectment for a 
 large part of the premises leased, and on the 17th of October 
 issued a writ of estropement, preventing the lessees from 
 cutting timber, driving a tunnel, etc.; that the ejectment was 
 still pending, and tiie estrepement prevented them from going 
 on with their improvements, etc., still in force; that on the 
 27th of October, 1865, the defendants notified the plaintiffs 
 that they had failed to pay the rent and had otherwise broken 
 their covenants, and that it was the intention of the defend- 
 ants to re-enter, unless the plaintiffs should remove the cause 
 of forfeiture in thirty days; and after setting out other 
 matters, and that they were prevented from carrying 6'n their 
 operations by the writ of estrepement, so as to comply with 
 the requisitions of the lease, and averring that if allowed a 
 reasonable time, and the prohibition to driving their tunnel 
 should be removed, they would be able to mine the amount 
 of coal stipulated for, etc.; they prayed that the defendants 
 might be restrained from exacting a forfeiture of the lease, 
 from re-entering the premises, and from distraining; the in- 
 junction to continue till the estrepement be withdrawn, etc., 
 and for general relief. 
 
 VOL VII.— 31 
 
482 Injunction. 
 
 A number of affidavits were filed jn support of the bill, and 
 one affidavit on tlie part of defendants. 
 
 A special injunction was granted, and the defendants ap- 
 pealed, assigning for error the granting of the special in- ■ 
 junction. 
 
 IT. H. SriAEPLESS and W. L. Hikst, for appellants. 
 0. E. Lex, for appellees. 
 
 The opinion of the court was delivered, February 27, 
 1868, by Agnew, J. 
 
 Every lease implies a covenant for quiet enjoyment, but 
 it extends only to tlie possession, and its breach, like that of 
 tlie warranty for title, arises only from eviction by means of 
 title. It does not protect against the entry and ouster of a 
 tort-feasor. Even the entry of the State, by virtue of her 
 right of eminent domain, incurs no breach of the covenant: 
 Maule V. Ashmead, 8 Harris, 483; Boss v. Dysart, 9 Casey, 
 452; Frost v. Earnest, 4 Wharton, 90; Dobbins v. Brown, 2 
 Jones, 75. This being the law of the relation between land- 
 lord and tenant, it is difficult to perceive how an ejectment, 
 even when followed by a writ of estrepement, can be deemed 
 a breacli of the covenant. The rights of a landlord would be 
 almost wortliless if every time a pretender to title may bring 
 an ejectment against his tenant and issue an estrepement to 
 stay alleged waste he would find his rent suspended, and his 
 remedies gone until the ejectment should be ended. But an 
 action can not produce this result, until it has its point in 
 actual or virtual eviction. The tenant has a right to call his 
 landlord into liis defense, and if eviction follows, as the result 
 of a failure to defend him, he can then refuse payment of the 
 rent and fall back upon his covenant for quiet enjoyment to re- 
 cover his dama'j;es. Under the lease between these parties the 
 p aintiffs were bound to pay the rent at the stipulated rate per 
 ton for 120,000 tons per annum, whether they mined the coal 
 or not. The plaintiffs were allowed until the 1st day of Octo- 
 ber, 1864, to fit up the premises and make the improvements 
 necessary to prepare for mining before the rent should com- 
 mence running. After this time they were bound to pay the 
 rent according to the minimum number of tons fixed. The 
 
Shi?rman v. Clark. 483 
 
 snm tlius sfcipukted they were bound to pay at all events, and 
 iiotliing less than an eviction or a discharge would suspend or 
 release. Tlie clause for forfeiture and re-entry for non-pay- 
 ment of rent could be made effective only by their own default. 
 But it is said to be a great hardship to be prevented from 
 mining by the estrepement, and yet forced to pay the rent. 
 This is so, but it is their misfortune, not that of the lessors. 
 If the ejectment prove to be well founded they have their 
 remedy on their covenant for quiet enjoyment, and if un- 
 founded why should the lessors suffer? If any remedy lies 
 against the plaintiff in the ejectment for his false plaint, cer. 
 tainly it does not belong to the lessors. This is the whole 
 case of the plaintiffs in this bill as it appears at present, and 
 it affords no ground for a special injunction. 
 
 The decree made at Nisi Prius, awarding a special injunc- 
 tion, is therefore reversed, and the special injunction dissolved. 
 
 Beversed. 
 
 Sherman v. Clark. 
 
 (4 Nevada, 138. Supreme Court, 1868.) 
 
 Requisites preliminary to iTijunetion. No injunction ought to be allowed 
 where the remedy is complete at law; it is granted only to prevent 
 injury (although an account for past injury may be incident), and there 
 must be a reasonable probability that a real injury will occur unless the 
 writ be granted. 
 
 " Usurpation of office, etc. The right to an office in a company can not be 
 tried on application for injunction, nor can it restore an officer to his 
 position, nor can it remedy the removal of a company officer after the 
 removal has been already made. 
 
 Iigunction to restrain transfer of stock illegally issued by a secretary 
 of the company may issue, but only on a proper showing of the illegality 
 of the issue and of the proposed transfer. 
 
 misuse of company funds. Charging the superintendent with depositing 
 the company funds with a mercantile house instead of in a bank, and 
 with refusal to pay claims against the company, can not be CQnsidered 
 breaches of duty when unaccompanied by sp.ecial allegations showing 
 it to be his duty to do otherwise. 
 
 Agent applying for patent. Though there may be circuinstances where 
 an application for patent would not be advantageous to a company, the 
 mere allegation of such fact is not sufficient. 
 
 » Gilroy's App., 100 Pa. St. 5. 
 
484 Injunction. 
 
 ' Superintendent working witliout orders. If a superintendent be work- 
 ing without any control of the president or board of trustees, it does 
 not follow that the mine is being worked injuriously to the stockholders. 
 
 Threatening to continue. Where the acts complained of do not make a 
 case, it follows that a threat to continue them can not aid the matter. 
 
 Appeal from the District Court of the Sixth Judicial Dis- 
 trict, Lander County. 
 
 This was a suit for an injunction. 
 The facts are stated in the opinion. 
 
 D. CooPEE, for appellant. 
 
 Geo. S. Hupp and Uken and Ckotland, for respondent. 
 
 By the Court, Lewis, J. 
 
 The facility with which injunctions liave been obtained 
 from the courts iu tliis State seems to have made the applica- 
 tion for them almost a matter of course in every conceivable 
 character of case. 
 
 When the law appears to aiford no specific remedy for some 
 petty annoyance or imaginary wrong, tliis writ is applied for 
 as if it were the great sovereign and infallible remedy — the 
 legal panacea for every ill that may arise in the complicated 
 affairs of man. Bat unfortunately, perhaps, the writ of in- 
 junction does not possess these marvelous virtues and limit- 
 less powers. Its ofiice is limited, and it is generally employed 
 only as an auxiliary remedy. 
 
 In disposing of this case, we have not found it necessary to 
 look into the evidence or proceedings of the court below, be- 
 cause, in our opinion, the bill makes no showing entitling tlie 
 plaintiff to the relief sought by him. Such being the case, 
 the judgment denying the injunction was correct, and can 
 not be reversed by this court, for no person is in a position 
 to complain of error who does not show by his pleading that 
 he has some cause of action or ground of defense. 
 
 ' Such a dictum as this can only be justified by the fact that neither the 
 corporation itself nor the body of stockholders seem to have been complain- 
 ing parties: Flagstaff Co. v. latrick, 4 M. R. 19. 
 
Sherman v. Claek. 485 
 
 Before specially disenssin" the snfficiencj of the plaintiff's 
 bill in this case, it may be well to state some of the general 
 and fundamental rnles governing the issuance of the writ of 
 injunction, and which have a bearing upon this case. The 
 writ is exclnsively an equitable remedy. But equity is 
 chary of its powers; it employe them only when the impo- 
 tent or tardy process of the law does not afford that complete 
 and perfect remedy or protection which the individual may 
 be justly entitled to. When, therefore, it is shown that 
 there is a complete and adequate remedy at law, equity will 
 afford no assistance. "When a party has a remedy at law," 
 says Mr. Hilliard, "he can not come into equity, unless 
 from circumstances not within his control he could not avail 
 himself 'of his legal remedy." Hill. Inj. Sec. 23. "That 
 full compensation can be had at law is the great rule for 
 withholding the strong arm of the chancellor," says Mr. 
 Justice Thompson, in Pusey v. Wright, 31 Penn. 387. See, 
 also, Thompson v. Matthews, 2 Edw. Ch. R. 213; 9 Paige, 
 323. Before refusing its aid upon this ground, however, it 
 must appear that the legal remedy is complete and adequate 
 to afford the complainant full redress; but when that fact does 
 appear, equity at once relinquishes all control over the case, 
 and leaves the party to pursue his legal remedy. 
 
 Another rule having an important bearing upon this case 
 is, that an injunction is only issued to prevent apprehended 
 injury or mischief, and affords no redress for wrongs already 
 committed: Practice Act, Sec. 112. "Injunction," says the 
 learned author already quoted, " is said to be wholly a pre- 
 ventive remedy. If the injury be already done, the writ can 
 have no operation, for it can not be applied correctively so as 
 to remove it. It is not used for the purpose of punishment, 
 or to compel persons to do right, but simply to prevent them 
 from doing wrong": Hill. Inj., Sec. 5. See, also, Watson v. 
 Hunter, 5 John. Ch. R. 169. A remedy for an injury already , 
 committed will sometimes be given as incident to the injunc- 
 tion, as in Garth v. Cotton, 1 Ves. 528. A decree for an ac- 
 count of the waste already committed was granted as an inci- 
 dent to the injunction to stay future waste. But it is only in 
 cases where. a sufficient showing for an injunction is made out, 
 and an injury has already resulted from the act enjoined, that 
 such a remedy will be afforded. 
 
486 iNJUNCTIOIf. 
 
 It must also be made to appear tbat there is at least a rea- 
 sonable probability tliat a real injury will occur if the injunc- 
 tion be not granted. This extraordinary writ should not be 
 issued upon the bare possibility of injury, or upon any un- 
 substantial or unreasonable apprehension of it. The injury, 
 too, must be real, and not merely theoretical. If the proposi- 
 tions or rules thus stated be correct, it is clear that the plaint- 
 iff's bill is utterly insuiBcient to entitle him to the relief prayed 
 for. The several specific causes of complaint which it con- 
 tains will be noticed in the order in which they are presented 
 in the bill. After stating that he is a stockholder in the Mag- 
 nolia Gold and Silver M. Co., the plaintiff alleges that "The 
 defendant is now, and for a long period of time has been, the 
 acting superintendent of such Magnolia G. and S. M. Co., 
 and is now, and has been for a long time, acting as trustee, 
 secretary and treasurer of said company; tliat by law the said 
 Magnolia G. and S. M. Co. is entitled to three trustees, and 
 it is provided by law that the business of said corporation 
 should be managed and conducted, and the mine of said cor- 
 poration worked, under the supervision and control of said 
 board of trustees. Tliat the office of one of said trustees has 
 been declared vacant, and that one J. W. Brown is a trustee 
 and president of said corporation, and that tiiere are no trus- 
 tees of said corporation but said Brown and tlie defendant 
 herein." And thus plaintiff alleges the defendant "has at- 
 tempted to remove his co-trustee-and the president of the said 
 company, and has published notices in tJie public press to 
 that effect, and has seized the books and all tiie property of 
 the said company, and retains possession of tliem, and refuses 
 to give them up to the said president and trustee aforesaid, 
 and prevents him from participating in the control or man- 
 agement thereof, and has ousted and ejected him from his said 
 offices as president and trustee, and refuses to permit him to 
 discharge any of the duties of the said ofBces." 
 
 This allegation begins by charging that the defendant 
 had attempted to remove Brown from his office. He seems, 
 hovvever, to have been rapid in his maneuvers, for we find 
 at its close that Brown is removed and no longer occupies 
 his position. To be removed from his office was, perhaps, 
 an injury of which Brown might justly complain, and the 
 
Sheeman v. Clark. 487 
 
 law, upon a proper showing by himself, would doubtless 
 restore him; but tha-t it is a ground for an injunction is by 
 no means so clear. It is not claimed that the defendant is 
 himself acting as president. His moderate ambition con- 
 tents itself with four positions in the corporation, and ex- 
 hibits no desire to fill the fifth. But if it were "shown that 
 he was discharging the duties of president of the corpora- 
 tion, that of itself would not authorize the issuance of an 
 injunction upon the application of a stockholder. It would 
 be necessary to show that he was doing, or threatening to do 
 some act, which if done, would result in great or irreparable in- 
 jury to the corporation. As we have already stated, the writ of 
 injunction is a preventive remedy, and only issued to restrain 
 the commission of some real injury. Brown could not be re- 
 stored to his office by a proceeding of this kind; a manda/mus 
 or quo warranto would be the proper proceeding for that pur- 
 pose. We could not, in this suit, restore to him the books and 
 papers which may have been taken frOni him, nor anything 
 else belonging to his office. Whether he is entitled to any- 
 thing belonging to the office, or has a right to do anything con- 
 nected with it, can only be determined by trying his right to 
 the office itself, which can not be done upon an application for 
 an injunction. But the prayer of the bill is: "That the said 
 defendant, his agents, servants and employes, be enjoined 
 and restrained from interfering with the books and other prop- 
 erty of the said Magnolia G. & S. M. Co., and from exercising 
 any of the functions of treasurer, trustee, superintendent or 
 secretary, except to hold possession of said books and papers 
 of said company, subject to the order of the court." In other 
 words, the court is asked to stop all the operations of the cor- 
 poration, to virtually remove the defendant from four offices, 
 and to prohibit the keeping of any books for the concern, be- 
 cause the defendant refuses to allow Brown to act as president 
 and trustee. To grant the prayer of this bill would look very 
 much like punishing the stockholders by the closing up of 
 their mine for the misconduct of oneofthe officers; a miscon- 
 duct, too, which does not appear to be in any wise prejudicial 
 to the company. 
 
 Whether Bi-own, as president or trustee, would be entitled 
 to the possession or control of any of the boojss which the de- 
 
488 Injunction. 
 
 fendant is aharsed with having fleized, does not appear. The 
 liresidents of such institutions are usually things of ornament 
 rather than utility, and there is nothing in the bill in this case 
 to satisfy us that that oflacer in the Magnolia company is an ex- 
 ception to the general rule. Tiie plaintili's billdoes not show 
 that the defendant, was not alone entitled to the control of the 
 books taken by him, nor that the keeping of them hy him will 
 result in any serious injury to the comjjany, while it is self- 
 evident that to prohibit the working of the mine and the 
 keeping of the books would be likely to occasion such injury. 
 An injunction may probably be issued on the application of a 
 stockholder to restrain the doing of some act by the officers, 
 xyhich, if done, would result in injury to the company; but if 
 the act be done, an injunction can afford no remedy. If an 
 officer is wrongfully removed from his office it can not restore 
 him to it; if the books are already taken, this writ can not 
 compel their return, nor restrain interference with them, un- 
 less such interference is likely to result in real injury to the 
 corporation, which in this case is not shown. We conclude, 
 therefore, that there is nothing in this first charge against the 
 defendant warranting the issuance of the writ. 
 
 The substance of the next allegation is, that the defendant, 
 without the consent of the board of trustees, removed the of- 
 fice of the company from the place established for it to some 
 other part of the city of Austin, and from place to place, there- 
 by concealing the same from the said president and stock- 
 holders of the said company. Well, what remedy an injunc- 
 tion can afford for the itinerant proclivities of the office of the 
 Magnolia company ie diflicult to discover. For aught that 
 appears in this case, the defendant had a right to move tlie 
 office as often as he chose, or to whatever localitj' might suit 
 his fancy. Such being the case, he might have carried it in 
 his breeches pocket, or his hat, and we know of no way in 
 which the writ of injunction would aid tlie plaintiff in discov- 
 ering it. I ', without the authority or the right to do so, the 
 defendant was about to remove the company's office, and it was 
 shown^that such removal would occasion damage to the stock- 
 holders, an injunction might be granted. But no such rep- 
 resentation is made. The office, it seems, has already been 
 moved, and a future removal does not seem to be appre- 
 
Shermait v. Clakk. 4£9 
 
 hended; but if it were, the removal of an office, the 
 location of which is not known to the plaintiff, can not 
 result in very serious injury to him, and may possibly en- 
 able him to discover it, whilst at present it appears to elude 
 all search. However, the object of this proceeding is not to 
 restrain the peregrinations of tlie company's chief office, but 
 to enjoin the defendant from interfering with the books and 
 other property belonging to the corporation ; hence this alle- 
 gation in no wise tends to further or aid the object of tbe bill. 
 It is, then, alleged that " The defendant haviiig so ousted 
 the president and trustee of said company, and having entire 
 possession of the books and other property of said Magnolia 
 company, wrongfully and unlawfully and without authority 
 has canceled stock of said company belonging to J. W. Brown, 
 a stockholder in said company, and has transferred stock of 
 said company belonging to said Brown to himself, without 
 the knowledge of the said Brown." 
 
 If in fact tlie defendant has, as charged in this count, un- 
 lawfully issued stock to himself, the company bas a complete 
 remedy at law against him; and with a proper showing an in- 
 junction would issue to restrain him from transferring such 
 stock to any third person; but that is not the remedy sought 
 by the plaintiff. Nor does this allegation make a sufficient 
 showing to entitle him to that remedy, even if he had asked 
 it. To be sufficient for that purpose, a full statement of the 
 facts constituting the illegality of the stock issued would be 
 necessary, and he might be enjoined from issuing any more 
 stock if it were satisfactorily shown that he was in fact un- 
 lawfully doing so; but the simple charge that he is unlawfully 
 and wrongfully issuing stock to himself is not sufficient. That 
 an act is wrongful or unlawful is usually a conclusion of law. 
 The facts logically showing that, act or acts to be so unlawful 
 should be stated. It should be shown whose duty it is to 
 issue stock, and under what circumstances it is authorized to 
 be issued. There are no facts stated here to justify the 
 conclusion that the defendant had not the right to issue the 
 stock to himself. However, as the remedy sought is not 
 an injunction to restrain the transfer of the stock so illegally 
 issued, nor to restrain a further issuance, any further 
 discussion of that portion of the allegation may be dis- 
 
490 Injunction. 
 
 pensed with. The cancellation of stock belongin,^ to 
 Erowu, and tlie transfer of it by the defendant to him- 
 self, are acts for which Brown has his legal remedj if he 
 chooses to pursue it, but it gives tiie plaintiff no cause of ac- 
 tion. If Brown himself does not wisli to complain, the plaint- 
 iff, who is simply a stockliolder in the company, has no right 
 to complain for him. Brown himself could not obtain an in- 
 junction upon such a showing. lie might recover his stock, 
 or damages for its conversion, in a proper proceeding, but lie 
 conld neither obtain the return of his stock nor its value in 
 damages tiirough the medium of an injunction. To enjoin 
 tiie defendant from interfering with the books of the company 
 would not restore Brown's stock, nor does it appear that there 
 is any more stock that the defendant can cancel; an injunc- 
 tion, therefore, would seem to be useless. 
 
 The next charge against the defendant is, that he deposited 
 money which he had in his possession, belonging to the com- 
 pany, with a mercantile house in the city of Austin, and while 
 such money was so on deposit, refused to pay certain credit- 
 ors of the company their just claims against it. The plaint- 
 iff's bill gives no reason why the defendant should not have 
 deposited the money as lu' did. In the absence of special 
 circumstances, we presume ic was his duty to deposit it whore 
 it would be most secure. That he has not done so, does not 
 appear from the bilL The defendant may have considered 
 Cook Brothers, with whom he made the deposit, as safe as 
 any of the banking institutions of the city, and we know of 
 nothing making it his duty to deposit it with one more than 
 the other — with a banking more than with a mercantile house. 
 Ot course, it is safer for the oflBcer to follow the usual cus- 
 tom; but if he does not, it can not be considered a breach 
 of duty, unless it be made to appear that the course pur- 
 sued by him is not as safe as that usually pursued. But he 
 refused to pay the creditors of the company whilst the 'mon- 
 ey was so deposited, and by reason of that fact it is al- 
 leged that the corporation, and the plaintiff especially, were 
 greatly damaged. In what particular manner this great 
 damage was occasioned, is not shown; whether it was a 
 real pecuniary injury to the company, or only a damage to 
 its credit, is not yet made apparent. What if it were both? 
 
Sheeman v. Clark. 491 
 
 It does not follow that the defendant is bkmable, for the 
 plaintiff's bill does not inform us that it was the defendant's 
 dntj, or indeed that he had any authority whatever to pay 
 the claims spoken of If it were specifically alleged that it 
 was made the duty of defendant to pay all just claims against 
 the company, the bill would then, perhaps, tend to show a 
 dereliction of duty on his part; but as it now stands it does 
 not show even the slightest deviation from his duty in this 
 respect. 
 
 The next charge against the defendant is that he is applying 
 for a patent, under the laws of the United States, for the Mag- 
 nolia mine, and is thereby involving the company in pro- 
 ceedings which will, if persisted in, result in great damage 
 to the stockholders. If the application for the patent is on 
 behalf of and for the benefit of the company, the defendant 
 would seem to be simply discharging his plain duty. An ap- 
 plication for a patent in the regular way, and in accordance 
 with law, appears to be an advantage rather than a detriment 
 to the company. There may be some circumstances connected 
 with the matter which would place a different phase upon it, 
 but nothing of the kind appears in the bill. We find the 
 simple allegation the substance of which is stated above. If 
 the application for a patent was likely to be prejudicial to the 
 company, the facts showing such to be the case should have 
 been fully stated, so that the court might itself judge whether 
 it would be injurious or not. The allegation in its preseiit 
 form is nothing more than an expression of opinion by the 
 plaintiff that the application for a patent would be injurious 
 to the Company. That is not sufficient; the facts logically 
 showing that such would be the effect should have been 
 stated. 
 
 It is next alleged that defendant is " working tlie said mine 
 for the said company without any control from the board of 
 trustees empowered to supervise the working of the same and 
 contrary "to the order of the said president." It is not al-. 
 leged that the mine is being worked in a manner injurious to 
 the stockholders. Nor indeed is there anything in the bill to 
 justify the conclusion that the mine is not being worked in 
 tlie best manner possible and to the entire satisfaction of all 
 the stockholders except the plaintiff. The president probably 
 
492 iNJCNCTioiir. 
 
 has no more authority or power with respect to working the 
 mine than the defendant has. That the defendant refuses to 
 submit to the control of the board would not therefore seem to 
 be a very strong ground for the interposition of equity. If 
 the defendant is managing the mine judiciously and in fur- 
 therance of the best interests of the stockholders, it would be 
 unjust to stop all operations simply upon the application of 
 one dissatisfied stockholder, and upon such a showing as is 
 made here, it can not be done. 
 
 The bill concludes with the allegation that the defendant is 
 continuing and threatening to continue the unlawful and 
 wrongful acts complained of, to the great damage of the stock- 
 holders and especially to the plaintiff. But as we have en- 
 deavored to show, none of the acts complained of authorize 
 the issuance of an injunction, most of them not even showing 
 the slightest cause of complaint. To allege that the defend- 
 ant is continuing them can not, therefore, aid the plaintiff's 
 case, and the bill taken as an entirety can satisfy no one tiiat 
 any great injury or damage to the company is likely to result 
 from the possession and control of the books and the manage- 
 ment of its property by the defendant. 
 
 Although it is quite apparent from the record that theNew 
 York and Austin Silver M. Co. should have been made a party 
 to this action, still as that question was not raised by counsel, 
 and as our present conclusion is against the plaintiff, it was 
 thought best topass upon the merits of the bill itself. 
 
 The jucl,gment of the court below is affirmed. 
 
 By Johnson, J., concurring. 
 
 The aiBrmance of the order of the lower court meets my 
 approval on this distinct ground, that the plaintiff shows 
 no right in himself to maintain the action. Suit was brought 
 by Sherman as plaintiff in his individual name, whereas lie 
 shows by the complaint that the seventy-nine and a half 
 shares of Magnolia company stock were held by him exclu- 
 sively in thecharacter of i trustee for the Austin Silver M. Co., 
 a foreign corporation. It is not even shown by the pleading 
 that the plaintiff is a stockholder, or has an interest in either 
 of the corporations; nor are there any special circumstances 
 
Lyon v. Woodman. 493 
 
 appearing to authorize him to wage a contest with defendant 
 concerning any of the alleged grievances. To all intents and 
 purposes the plaintiff, by his own showing, is so far an out- 
 sider that he conld not properly bring the action in his in- 
 dividual name. This point, it is true, was not taken by re- 
 spondent on the argument, nor does the record disclose the 
 particular grounds, as it need not, on which the court below 
 refused the injunction. But if the decision of the district 
 Court be right, although the reason be wrong, surely this court 
 should not disturb it. Much less, therefore, the propriety of 
 doing so, because the respondent's counsel overlook a material 
 point in the case, and perhaps the most tenable ground upon 
 which the decision can be sustained. The duty of this court, 
 as I understand it, is to decide upon the entire record of the 
 case as presented, and not in conformity with the peculiar 
 views and arguments of counsel. The ruling of the district 
 court in refusing the injunction, is clearly defensible on the 
 ground stated, whereas upon the points discussed — some of 
 them at least, in my view — it may be more questionable. 
 Yet as this appeal is merely from an interlocutory order, 
 pending the trial of the cause on its merits, I shall not antic- 
 ipate the district court in passing upon any of these questions 
 now. 
 
 'Lyon v. Wqodman et al. 
 
 (2 Legal Gazette 81. District Court, 3d District, Utah Territory, 1870.) 
 
 Facts of the case— Insufflcient showing for injunction— Claims bong'ht 
 with linowledge of adverse title. Complainant averred the discovery 
 and the location of discdvery claim, and the location of claim No. 1 on 
 the St. Louis lode, by one Brain, in 1865, and of No. 2 by one Nichols, 
 compliance with the mining laws, working, etc., viz. : 
 
 That complainant in 1868, was working claim No. 1, expended large 
 sums and disclosed a rich vein; that during that time he let a contract to 
 Woodman on the lode, and that Woodman, though knowing the claim 
 to belong to Brain, pretended to make a discovery and location of his 
 own on the lode. The bill further averred that complainant was the 
 
 ' Commonly cited as The Emma Mine Case. 
 
494: Injunction". 
 
 owner of the titles of Brain and Nichols, but not stating how or when 
 he became such owner. Defendant's answer showed the decease of 
 Brain, and a probate court sale of Brain's interest (without notice to 
 the heirs.) and Jhe purchase of the same by the plaintiff upon a specu- 
 lating contract for $1,000, and a twelfth interest in case of successfol 
 suit, etc., from the assignee at the probate sale; averred that the con- 
 tract made between plaintifiF and Woodman related to other property, 
 long since abandoned, and denied the identity of the property sued for, 
 and alleged that defendant had discovered and located the Emma lode 
 in 1868; that plaintiff made no claim for the premises until 1870, when 
 defendants had developed their great value: Ifeld, no cause for injunc- 
 tion, because: 1. The bill did not make a sufficiently specific case, not 
 showing how title accrued; 2. All the equities of the bill were denied, 
 and the facts not only denied but evidently in great doubt; 3. The 
 complainant was guilty of laches; 4. Taking the bill and answer 
 together, it showed no case' addressed to the discretion of the court, nor 
 admitting of equitable interference. 
 
 ' Discretionary power in court. The granting or continuing of injunc- 
 tions necessarily involves the exercise of a certain amount of discretion, 
 the limits of which can not be fixed by any adjudged case. 
 
 Disputed title. An ini'unction to stay the working of a mine may be 
 granted notwithstanding a question of title is involved. But the fact 
 of the title being involved vrill add to the caution of the court in grant- 
 ing it. It is not necessary for a plaintiff to establish his title by a 
 suit at law where it is not doubtful and not in dispute. But if disputed 
 and in doubt, a court of equity will not settle it for him. He must show 
 a prima facie case, free from reasonable doubt, and a case free from the 
 imputation of laches. 
 
 Laches. The delay of two years in bringing suit for injunction to restrain 
 the working of a mine, is a fact seriously affecting the claim for an in- 
 junction. 
 
 Judicial notice of suits affecting the mine. In applications for injunc- 
 tion a judge may take judicial notice of the files of his own court show- 
 ing suits involving the legal title to the property. 
 
 2 Plaintiff's standing— Speculative purchase from ousted claimant. 
 The inadequacy of price paid by plaintiff seeking an injunction, and the 
 fact of his purchasing: while the mine was in the adverse possession of 
 other parties, considered as reasons for refusing injunctive relief ad- 
 dressed to the discretion of the court, and injunction refused accord- 
 ingly. 
 
 Relief as between trespassers. It is not sufficient to show the defendant 
 a trespasser, where plaintiff has himself no better standing. 
 
 This is a bill in equity praying for an injunction to restrain 
 the defendants from further working a certain silver mine 
 claimed by the plaintiff, in the " Little Cottonwood Canon, 
 in wliat is known as Mountain Lake mining district," de- 
 
 ' Chamhers v. Alabama Co., 67 Ala. 353. 
 " Munson v. Tryon, 7 M. E. 469. 
 
Lyon v. Woodman. 495 
 
 Bcribed as follows: "Discovery claim, and claims numbered 
 oue and two, southeasterly from said discovery claim on the 
 Saint Louis lode," etc. 
 
 In his bill of complaint and accompanying alBdavit the 
 plaintiff alleges " that •'he said claims were located and re- 
 corded Angiist 28, 1865, by Silas Brain, now deceased, and 
 one D. C. Nichols; the discovery claim and number one hav- 
 ing been located by the said Silas Brain, and number two by 
 the said Nichols, who were the locators of said claims, and 
 first possessed and occupied the same; and they, by said discov- 
 ery, location and possession became lawfully possessed thereof, 
 and acquired an indefeasible title thereto against all persons 
 whomsoever; and their said title and right of possession be- 
 come absolute, except as against the paramount title of the 
 United States government thereto," etc. And " that said 
 Brain and Nichols, in locating and holding said claims, com- 
 plied with all the laws, rules, customs and regulations of the 
 said Mountain Lalie mining district; and by virtue of the 
 said laws, customs and regulations, their right, title and pos- 
 session to said claims became absolute and indefeasible": 14 
 Stat, at Large, p. 251. 
 
 The plaintiff further alleges, in his bill and affidavit, that in 
 tlie months of October, November and December, 18(58, he, the 
 plaintiff, was engaged in mining and developing said claim 
 number one; that he expended considerable sums of money 
 therein; that thereby he developed a rich vein of argentifer- 
 ous galena ore on said claim; that on or about the 18th day 
 of October, 1868, he, the plaintiff, let a contract to the defend- 
 ant, Woodman, to do work for him, the plaintiff, on the said 
 claim number one; that he then paid to Woodman, on such 
 contract, the sum of $75, and placed in his hands the further 
 sum of $25 to pay for work already done; that Woodman 
 knew that said claim numbered one belonged to Silas Brain; 
 that on the 1st day of July, 1869, some of the defendants, and 
 afterward the rest of the defendants, unlawfnlly entered upon 
 said claims numbered one and two; that the mine on claim 
 numbered one is worth five hundred thousand dollars and up- 
 ward; that the defendants are still mining thereon and have 
 taken therefrom and converted to their own use ore and min- 
 erals to the value of two hundred thousand dollars and up- 
 
496 Ilf J UNCTION. 
 
 ward; that the defendants claim the said mine throu2;h the 
 defendant, "Woodman, who claims to be the discoverer and 
 locator thereof, and that unless the defendants are restrained 
 by injunction they will exhaust the said mine and do the 
 plaintiflE' an irreparable injury. 
 
 The plaintiff claims to be now the owner by purchase and 
 conveyance of all right and title of Brain and Nichols in and 
 to the said mining claims, but he omits to state when he be- 
 came such. He alleges that he has commenced aij act on on 
 ilie law side of this court, against the defendants, to recover 
 tlie possession of said claims, numbered one and two. All 
 the material allegations of the plaintiff are strongly corrobo- 
 rated by the affidavits of several other persons. 
 
 On the part of the defendants certified copies of certain 
 records in the office of Elias Smith, probate judge in and for 
 the county of Salt Lake, are produced. From these records 
 it appears that the mining claims described in the plaintiff's 
 paper as discovery claim and claim number one were part of 
 the estate of Silas Brain, deceased; that the heirs of said estate, 
 consisting of a brother and sister, reside in England (the 
 records do not show that these heirs had any notice of these 
 proceedings); that the titles to nearly all of said Brain's min- 
 ing claims are in dispute; that on the 21st day of July, .1870, 
 the said probate judge ordered the administrator to sell the 
 eaid mining claims at private sale; that at such private sale 
 Stephen A. Mann became the purchaser of said discovery 
 claim and claim number one for one thousand and twenty-five 
 dollars; that said Mann also agreed to pay one thousand dol- 
 lars additional and one twelfth interest in said claims, or sucii 
 part thereof as shall be possessed and recovered by said Mann, 
 or his assigns, in any suit or action at law that the said Mann, 
 or his assigns or grantee, shall hereafter institute to recover 
 the same — the said property being in whole or in part ad- 
 versely held and occupied; that such sale was subject to the 
 conditions of a certain contract between the plaintiif herein 
 and the said Mann, which was filed in the said office; that in 
 and by said contract it appears that on the 27th day of August, 
 1870, the said Mann sold to the plaintifiT herein the said dis- 
 covery claim and the said claim number one for one thousand 
 and twenty dollars in money; that in and by the same con- 
 
Lyon v. WooDMAisr, 497 
 
 tract the plaintiff herein agreed to institute and carry on, in 
 tlie courts of this Territory, such action or actions at law a? 
 should be necessary to remove certain persons who were tres- 
 passing upon said mining ground; that in the event the 
 plaintiff should be successful in such actions he would pay to 
 Mann the further sum of one thousand dollars and give to 
 him the one twelfth interest in the property; that Mann 
 should not be liable for any of the expenses of such litigation; 
 that the plaintiff might sell a portion of such claims to raise 
 money to pay for professional or other services in such litiga- 
 tion; that the plaintiff should pay to Mann one twelfth part 
 of the net balance of the money arising from such sales, and 
 give to him the one twelfth interest remaining after recover- 
 ing the possession of the said claims. 
 
 The defendants dispute the l)a7m fides of this transaction, 
 and charge that it was corrupt and fraudulent. 
 
 The defendant Woodman, by aifidavitj-alleges that about 
 the 1st of September, 1868, the plaintiff furnished hini, 
 Woodman, and the defendant Chisholm, about $25 in provis- 
 ions, and in October, 1868, the sum of $75 in money, to pros- 
 pect a certain claim known as the " Snsquehanah," he, the 
 plaintiff, to have one third interest therein; that such provis- 
 ions and money were thus expended; that he,' Woodman, 
 never received any other money from the plaintiff; that the 
 mining claim now in the possession of the defeadanfs is not 
 the said " Susquehanah," which was abandoned; that he never 
 was in the employ of the plaintiff in any capacity, and never 
 made with him any such contract as the plaintiff sets forth; 
 that he. Woodman, never heard of nor from the plaintiff from 
 about the niiddle of October, 1868, until August, 18T0; that 
 the mine possessed and worked by defendants, known as the 
 " Emma" mine, was never in the possession of the plaintiff, 
 and was never discovered nor located by Silas Brain; that it 
 was discovered and located by him, Woodman; that he went 
 upon and comnienced opening it in November, 1868; that 
 about, the 25th day of August, 1869, at the depth of ninety- 
 iiv6 feet, he discovered a permanent body of ore; that he duly 
 
 •located and recorded the same as the "Emma" lodp;,that 
 until the spring of 1870 the. siiid "Emma" mine was. known 
 
 • in the.said district as the " Woodiijan "mine, and 'ha? ^ever 
 . VOL. VII.— 32 
 
498 Injunction. 
 
 had any other name or designation ; that he has been in the 
 qniet, peaceable and undisturbed possession of the said mine 
 since N'orember, 1868, without any knowledge, suspicion or 
 intimation of any adverse claim thereto by any party or par- 
 ties; that the other defendants obtained their interests therein 
 through and from him; and that he and his co-defendants 
 have expended not less than sixty thousand dollars in pros- 
 pecting, developing and getting the said mine into a paying 
 condition. All the material allegations of the defendant 
 Woodman are strongly corroborated by the affidavits of other 
 defendants and other persons. It appears, also, that the de- 
 fendants are pecuniarily responsible for more than half a mil- 
 lion dollars. 
 
 C. H. Hempstead and H. A. Johnson for the plaintiff. 
 
 Marshall & Caetee, E. S. Josldt and K. H. Eobeetson, 
 for the defendants. 
 
 Opinion by McKean, C. J. September Term, 1870. Salt 
 Lake City. 
 
 That the court has power to grant or i-efuse an injunction 
 herein is unquestioned, and in deciding which to do the court 
 is left free from all arbitrary rules. " The granting and con- 
 tinuing of injunctions, although requiring judicial authority, 
 rests in the discretion of the court, to be governed by the 
 nature of the case." Hilliard on Injunctions, p. 15, Sect. 17. 
 "The extent to which the jurisdiction may be carried is not 
 marked out by any adjudged case, and from the nature of 
 things it must forever remain undefined." WilJard's Equity 
 Juris. 408; Coii v. Smith, 16 "Wis. 661; Eichs v. Michael, 
 13 Gal. 117; Burnett v. Whitesides, 13 Oal. 158. « An in- 
 junction ought not to be granted except for the prevention of 
 great and irreparable mischief. It can not be demanded as a 
 matter of right, but the granting of it must always rest in 
 the sound discretion of the court." Bine v. Stephens, 33 
 Conn. 497; Whittles]/ v. Hartford R. R. Comparmj, 23 Conn. 
 421; Hicks v. Michael, 15 Cal. 116; Story on Equity, 928; 
 Henshaw v. CUrk,!'^ Cal. 460; Kidd v. Dennison, 6 Barb. 
 
Lyon v. Woodmait. 499 
 
 9; Waldron v. Marsh, 5 Gal. 120; Hess et al. y. Winder et ai., 
 U Gal. 270; Reddall v. Bryan, 14 Md. 444. 
 
 To justify the court in granting an injunction, it should 
 clearly appear not only that the defendants are in the wrong 
 but that the plaintiff is in the right. The court will not 
 balance probabilities or uncertainties and give the plaintiff the 
 benefit of doubts. " On a motion for a preliminary injunc- 
 tion, the court is not bound to decide doubtful and difficult 
 questions of law or disputed questions of fact. " Parker v. 
 Sears, 1 Fish, 93; Brightley's Federal Dig. p. 456, Sec. 154; 
 H'lll V. Commissioners, Parsons' Select Gases in Equity, 
 501. " In general, clear, legal or equitable rights, free from 
 reasonable doubt, must be satisfactorily shown to authorize a 
 preliminary injunction." Hiiliard on Injunctions, p. 14, Sec. 
 16; Steamboat Co. y. Livingston, 3 Cow. 713. "It is an 
 appeal to the extraordinary power of the court, and the plaint- 
 iff is bound to make ont a case showing a clear necessity for 
 its exercise." Id. and Auburn v. Douglass, 12 Barb. 555. 
 "It is the duty of the court rather to protect acknowledged 
 rights than to establish new and doubtful . ones." Id. and 
 Booth V. DisGoll, 20 Conn. 555. 
 
 Although a court of equity, upon an application for an in- 
 junction, can not decide the question of title to land, yet if 
 it appear that the title is doubtful or in dispute that fact 
 should add to the caution with which the court considers the 
 question of granting the injunction. " Eq.nity will not restrain, 
 by injnnction, the working of a mine, or other trespass, until 
 the title, if disputed, has been settled at law, except in extreme 
 cases." Adams' Doctrine of Equity, p. 210, ^^ote; Hart v. 
 Mayor of Albany, 3 Paige, 213. " An injunction to stay 
 . waste will not be granted where the right is doubtful, or 
 where the defendant is in possession claiming adversely, and 
 tiie plaintiff has brought an action of ejectment to recover the 
 possession .at law, and whicli is undetermined." Storm, v. 
 Mann, 4 Johns. Ch. 21. In the case last cited the chancellor 
 said, "The title appears to be disputed," etc. " I must know 
 the result of that issue at law before I can interfere." See 
 also. White v. Booth, 7 Yei-m. 131; Caldwell v. Knott, 10 
 Ferg. 209; Reid v. Oifford, 6 Johns. Gh. 19. " Yet the com- 
 plainant will not be first required to establish his right at law, 
 
500 Injunction. 
 
 unless it is doubtful and in dispute." Id. and Hilliard on 
 Injunctions, 2d Ed., p. 26, Sect. 35. "To entitle the plaint- 
 iff to an injunction he must show a strong prima facie case 
 in support of his title, and must not be guiitj of any improp- 
 er delay in applying for relief." 19 U. S. Dig., p. 384, Sec. 11. 
 " If the plaintiff make out z. prima facie case for an injunc- 
 tion the defendant must overcome it by testimony." Bright- 
 ley's Federal Dig., p. 457, Sec. 191. "A court of chancery 
 will not grant a preliminary injunction wlieii the main ques- 
 tion in the case is being investigated by a court of law; the 
 question of right must lirst be settled." Attorney -General v. 
 City ofPaterson, 1 Stockt. (N. J.) 624-. 
 
 The lapse of time which can bar an action at law must be 
 fixed by statute; but in equity the question whether a plaintiff, 
 who applies for an injunction, has been guilty of improper 
 delay, is addressed to the discretion of the court. "If the 
 plaintiff permit the defendants to remain in possession of a 
 mining claim several months without interference, working 
 it as their own and expending large sums of money in devel- 
 oping it, a court of equity will require a very clear and strong 
 showing to induce it to grant or sustain a preliminary injunc- 
 tion to stop the work." Real del Monte Mining Co. v. 
 Pond Mining Co., 23 Oal. 82; see Reid v. Gifford, 6 Johns. 
 Oh. 19. "Acquiescence, although not in the sense of confer 
 ring a right on the opposite party, but merely in the sense of 
 depriving the complainant of his right to the interference of 
 a court of equity, will, of course, defeat the application for an 
 injunction." 19 U. S. Dig., p. 384, Sect. 12. 
 
 A plaintiff has no right to the extraordinary writ of injunc- 
 tion where his rights may be secured by the ordinary remedies 
 of a court of law. "No suit can be sustained in the equity 
 courts of the United States, where, a plain, adequate, and 
 complete remedy may be had at law." Barber v. Barber, 
 21 Howard, 591. "Where the remedy at law is complete 
 and adequate an injunction will not be granted." Winni- 
 piseogee Lake Co. v. Worater, 9 Foster, N. H. 433. " If there 
 be no impediment to a judgment at law, or to adequate legal 
 relief, an injunction ought not to issue." Bv/rnett v. White- 
 sides, 13 Gal. 158; Leach v. Day, 27 Gal. 643. 
 
 Are these principles of law applicable to the case at bar? 
 
Lyon v. Woodman. SOI 
 
 ■ 1. Almost or quite every material fact stated in the papers 
 of the plaintiff is flatly denied or contradicted by facts on the 
 part of the defendants. Such disputed questions of fact 
 woiild be more in place before a jury in a trial at law than 
 before a court of equity on an application for an injnnctipn. 
 
 2. It does not appear from the papers that the plaintiff 
 had any pretense of title when, in the fall of, 1'868,' he com- 
 menced niining on "claim number one." It would seem 
 that he was merely a trespasser on the rights of Silas Brain ; 
 indeed his own statements fehow it. It is not sufficient for 
 the plaintiff to allege or to show that tlie defendants have, also 
 trespassed on Silas Brain. He must show not, only that the 
 defendants are in the wrong, but that he is in the right. 
 
 The plaintiff seems to have had not even a color of title 
 until the 27th day of August, 1870^ at which time occurred^ 
 the transactions between him and Stephen A. Mann. Whether 
 the probate jndge had jurisdiction and authority to order the 
 sale, privately or otherwise, of the mining claims of Silas 
 Brain, deceased; whether the rights of the heirs of said Brain 
 have been protected by the proceedings in the probate court; 
 whether the transactions by and between the plaintiff" and 
 said Mann were valid or void, fair or fraudnlent, are questions 
 to be considered when the action of ejectment between the 
 parties hereto comes up for trial on the law side of this court. 
 The fact, that such questions are pending in the action at law 
 should add to the caution of the court in this action in equity. 
 The plaintiff claims to have bought for $1,020, and certain" 
 conditional promises, a mine which he alleges is worth more 
 than five hundred thousand dollars, knowing that it was ad- 
 versely held by parties, some of whom had worked it more- 
 than a year and a half, and who had expended sixty thousand 
 dollars upon it, he, the plaintiff, agreeing to bring 'an action 
 at law to dispossess them. That the plaintiff may bting his- 
 action at law, and, if possible, get possession of the mine, can, 
 not be denied. But if a court of equity were to grant him 
 an injunction on the ground that if they were not restrained 
 the defendants would do him an irreparable injury, it would 
 be an extraordinary exercise of the extraordinary power of the 
 conrt. 
 
 3. Even if the plaintiff had commenced mining in the 
 
O02 IXJUNCTIOK, 
 
 fall of 1868, under color of title, which was not the case, his 
 delay for nearly two years to bring his action against the 
 defendants, though it would not affect his title, had he pos- 
 sessed one, would seriously affect his claim for injunction. 
 
 4. The plaintiff has brought an action in ejectinent, on the 
 law side of this court, to recover tlie possession of the mine 
 which he claims; and the official files, of which the court may 
 take notice, show that an issue wasjoined in that action twenty 
 days ago. This court was then and still is in session. Why 
 has not that action at law been brought to trial? It would 
 seem that the plaintiff has a "plain, adequate and complete 
 remedy at law," which he has failed diligently to prosecute. 
 
 While courts should always carefully inquire into and guard 
 the rights of the parties before them, they should also and 
 especially in a case in a community and at a time like the 
 present, look above and beyond the parties. In Irwin v, 
 Phillips, 6 Cal. 146, tlie Supreme Court of California says, 
 " courts are bound to take notice of the political and social 
 condition of the country which they judicially rule." And in 
 Merced Mining Company v. Fremont, 7 Cal. 325, the court 
 quotes this sentiment and says: "It is as just as its expres- 
 sion is concise and appropriate," and adds tliat " courts, know- 
 ing the political and social condition of the country are 
 equally bound to apply the rules of law and the principles of 
 enlarged reason to the new circumstances of a people." 
 
 Though the Territory of Utah lies contiguous to the great 
 mining districts of other States and Territories, and though 
 for more than twenty years it has had a considerable popula- 
 tion, its- valuable mines are but just beginning to be devel- 
 oped. It will not be surprising if many cases of <5ontested 
 titles shall arise. Tire law power of the courts is available 
 to all, and so are their equity powers; but the latter should be 
 exercised, in the granting of injunctions, with extraordinary 
 prudence. 
 
 The motion for cm injtmctiort is denied. 
 
Cole Co. v. Virginia and Gold Hill Co. 503 
 
 ' The Cole Silver Mining Co. v. The Virginia and 
 Gold Hill Water Co. et al. 
 
 (1 Sawyer, 470. U. S. Circuit Court, District of Nevada, 1871.) 
 
 Parties beyond jurisdiction. A person who resides beyond the jurisdic- 
 tion of the court, although named as a defendant in the bill, is substan- 
 tially not a party to the action until he is served, or till he appears. 
 
 2 Tort-feasor beyond jurisdiction not a necessary party. In an action 
 against joint and several tort-feasors to restrain the diversion of water, 
 if one of the defendants resides beyond the jurisdiction of the court, so 
 that he can not be served with process and does not voluntarily appear, 
 the bill may be amended by omitting his name, and the court will 
 exercise jurisdiction as to the remaining defendants. 
 
 Trespass not excused by plaintiff's incapacity. One who has trespassed 
 upon water rights acquired by a mining company will not be allowed to 
 defend on the ground that the mining company had no legal capacity 
 to acquire water rights. As between the party despoiled and the 
 wrongdoer the courts will not enter upon this inquiry. 
 
 ' Diversion of water enjoined to extent of requiring' affirmative acts by 
 bnlli-Iieading' tunnel. While excavating a tunnel for mining pui- 
 poses the complainant struck a seam in the rock, from which flowed a 
 stream of water, which it claimed and appropriated. ■ Subsequently, 
 defendants ran a tunnel into the mountain to a point below complain- 
 ant's tunnel and drained the latter, and the defendants thereupon 
 appropriated the water: Held, that complaina t was entitled to an in- 
 junction to restrain such diversion and appropriation by defendants 
 even though it should be necessary for defendants to fill up, or build a 
 water-tight barrier across their tunnel to accomplish the eud sought. 
 
 Application for preliminary injunction heard on bill and 
 affidavits.,. Complainant is a corporation organized for the 
 purpose of minin,;^ for silver. Its grantors took up a ledge 
 supposed to contain silver ores, situate on the side of the 
 mountain, above Virginia City. Compla,inant excavated a 
 tunnel, commencing in a ravine some distance below the 
 croppings of its ledge, on the surface of the mountain, and 
 extended it into tlie mountain to and through its ledge, at 
 a considerable deptii below the surface. In excavating 
 the tunnel, complainant struck a seam in the rock, from 
 wiiich flowed a stream of water, which it claimed and 
 
 " S. C, post, p. .516. 
 
 " U. S. v. Parrott, 7 M. R. 336. 
 . \Plaiit V. Sloit, 6 M. R. 17o; Lane v. Newdigate, 10 Ves. 193; Lance's 
 App., 55 Pa. St. 17. 
 
501 . Injunctioit. 
 
 appropriated in accordance with the custom in force. Tlie 
 water so discovered and appropriated, tlie complainant leased 
 to tlie Virginia and Gold Hill Water Company, a corporation 
 organized to supply water to Yirginia City and Gold Hill, one 
 of the defendants, uj^on certain designated terms. Said water 
 company paid the stipulated rents and enjoyed the water under 
 said lease for the agreed term. The water was conveyed to 
 Virginia City and sold to the people for various domestic and 
 other uses. Other parties also took up sundry ledges or min- 
 ing claims on the same mountain. Some claimed to be in 
 front, and some in the rear of complainant's ledge. Some 
 of the claimants started a tunnel to run to their ledges, 
 commencing lower down the mountain and at a considerable 
 distance to the southward of the entrance to complainant's 
 tunnel. The excavation of this tunnel, called the Nevada 
 tuimel, was prosecuted at times, and the work suspended 
 at times for several years. Finally, the said several de- 
 fendants, some of whom had acquired a portion of the inter-' 
 est of the original parties in said Nevada tunnel, entered 
 into a contract to extend the said tunnel into the mountain 
 till they should strike the ledge called th,e Macey ledge— 'the 
 location of which is left very much in doubt by the affidavits, 
 but it can not be west of or beyond complainant's ledge — 
 or till they should strike water. 
 
 It is unnecessary for the purpose of illustrating the points 
 decided to specify the terms of the contract, or to state more 
 specifically the facts. Under this contract the defendants con- 
 tinued to excavate said tunnel in such a line as to strike a 
 point at a lower altitude, directly below the point where 
 complainant discovered and appropriated the water in its 
 tunnel; and they so timed it, that they reached the said point 
 not far from the time when said lease from complainant to the 
 said defendant, the Virginia and Gold Hill Water Company', 
 expired. The complainant insists that defendants extended 
 the said tunnel expressly to take this water; and the defend- 
 ants, that their object was to prospect ledges lying in the rear. 
 But it did not appear to the satisfaction of the court, that the 
 claim to any ledge mentioned lying in the line of the tunnel 
 to the west or rear of complainant's ledge, was located prior 
 to the location of complainant's claim. When the defendants 
 
Cole Co. v. Virginia and'Gold Hill Co. 535 
 
 weve approaching tlie point under complainant's tunnel, the 
 complainant filed- a bill in this court, stating what it claimed 
 to be th§ facts; that defendants were running to the point 
 referred to for the purpose of cutting off its water, that thev 
 would soon reach the water and. intercept it, and prayed an 
 injunction to restrain them from proceeding further. While 
 the motion for injunction was pending, the defendants 
 reached the point, arid the water thereupon ceased to flow in 
 complainant's tunnel, and was diverted through defendants' 
 said tunnel, and appropriated by them. Thereupon the five 
 years mentioned in said lease having expired, complainant 
 dismissed its first bill and filed this bill, setting up the new 
 facts, and applied for an injunction to restrain the continu- 
 ance of said diversion till the final hearing. The value of 
 the water is alleged to be two hundred dollars per day. Since 
 the diversion, it has been taken by defendants at the mouth 
 of their own tunnel, and conveyed to Virginia City for sale 
 as before. 
 
 The foregoing is a sufiBcient summary of the facts as they 
 appear in the bill and affidavits, to explain the points of the 
 decision, without being more specific. 
 
 , Mitchell & Stone and S. W. Sandeesou, for complainant. 
 
 K. S. Meesick, for defendants. 
 
 Sawtee, Circuit Judge. 
 
 ■ As to the question of jurisdiction, the defendant, Glauber, 
 has never been served, and he has not appeared. The bill 
 shows that he is a resident of California, so that he can not be 
 served, and the court can not acquire jurisdiction of him, in 
 the action unless he voluntarily appears. Although named 
 in the bill, with a prayer that process issue and he be made 
 a defendant, j'et he is substantially not a party to the actiou- 
 until he is served or till he appears. 
 
 The twenty-second and forty-seventh equity rules do not 
 seem to contemplate that a person can be a party in fact, till' 
 service or appearance. At all events, under these rules, when 
 the making of a person a party, unless he is an indispensable 
 party, would oust the jurisdiction of the court as to othe'r 
 
506 Injunction. 
 
 parties, he may be omitted for the purpose of exercising jn- 
 risdictlon as to those other parties, wliose rights can be deter- 
 mined without his presence: Shields v. Bo/trow, U How. 
 141. 
 
 Upon the omission- of Glauber the conrt would have juris- 
 diction over all the other parties, and their rights as against 
 the complainant may be determined witliont his presence. The 
 acts complained of are tortious, and the cause of action is 
 several, as well as joint. I do not think Glauber an indispen- 
 sable party to the action. While the decree will finally settle 
 the rights of the parties before the court, it will not bind him, 
 and he may still litigate his claim with the complainant in 
 another action, or he may voluntarily appear in this, for it is 
 not to be presumed that he is in fact ignorant of the pendency 
 of the suit. If Glauber is an indispensable party, it will be 
 impossible for the court to restrain tlie commission of waste, 
 the working or destruction of a mine, the diversion of water, 
 the flooding of an up]>er riparian proprietor, or the erection or 
 continuance of any nuisance, iiowever offensive, dangerous or 
 destructive to the rights of another,, when the wrongdoer has 
 an associate or confederate residing out of the jurisdiction of 
 the court, or when the tort-feasor himself keeps beyond the 
 jurisdiction of the court, and performs the tortious acts through 
 his agents and servants. It is notorious, that in the mining 
 regions of Nevada, Oregon and California, and all the mining 
 territories, many trespasses and wrongs of the kind mentioned 
 requiring the almost daily interposition of the courts, are per- 
 petrated by parties having, associates residing in other States. 
 To deny relief against wrongdoers in such cases in this cir- 
 cuit, on account of the absence of one tort-feasor, would be to 
 paralyze the right arm of the court in those cases wherein its 
 effectual interposition is most imperatively demanded, and 
 most frequently invoked. Let it be once established that the 
 courts can nQt interfere, or grant relief in the absence of one 
 of the joint tort-feasors, and the mining interests of all the gold 
 and silver-producing States, will thereafter be at the mercy 
 of any bad men, who, relying upon a confederate beyond the 
 jurisdiction of the court to enable them to evade all redress for 
 injuries committed, may choose to combine for the purpose 
 of wrongfully availing themselves of the labors and discover- 
 
Cole Co. v. Virginia and Gold Hill Co. 507 
 
 ies of others. In my judgment, in such cases it would be far 
 more equitable to compel the absent tort-feasor to appear and 
 defend his right, or submit to any inconvenience that may in- 
 cidentally result from the execution of any decree entered 
 against his co-trespassers, rather than deny all redress, no mat- 
 ter how grievous to the injured party, because one of the wrong- 
 doers withdraws and keeps himself beyond the jurisdiction of 
 the court. In the one case the absent party may appear and 
 have his rights adjudicated, if he so desires, and justice will be 
 awarded to all ; while in the other, the most grievous injuries 
 must necessarily go wholly unredressed. 
 
 For example, can the courts of the United States properly 
 refuse to redress clearly manifest injuries to its own citizens, 
 by restraining tlie working of a gold or silver mine, waste, or 
 the erection (■¥ continuance of a nuisance, because a citizen 
 of Great Britain, residing in England, is interested in the 
 profits of the wrong, or, himself safe in his retreat beyond the 
 jurisdiction of the court, perpetrates it by means of his 
 agents, servants and employes? The court, in sucii instances, 
 must, fi'om the necessity of the case, assume jurisdiction and 
 proceed to a decree as to the parties before it, or sit helplessly 
 by and permit an absolute failure of justice, by suffering our 
 own citizens to be ruined with impunity by irresponsible, 
 non-resident wrongdoers, or by parties in collusion with 
 them. 
 
 On this principle of preventing a failure of justice, and 
 even on grounds of convenience, courts of equity have often 
 dispensed with parties interested in and affected by the suit, 
 in cases callinjr far less loudlv for such actioii than the class 
 of cases to which this belongs: Smith v. Hib. Mine Co., 1 
 Sho. & Lef. 240-1; Bogers-^. Linton, Bunbury, 2D0, 201; 
 Attorney General v. Ballot College, 9 Mod. 409; Thomjyson 
 v. Topham, 1 Yonnge & Jer. 556; CocMurn v. Thonvpson^ 
 16 Ves. 326; Williams v. Whingates^ 2 Bro. Gh. 399; Wal-. 
 worth V. Holt, 4^ Myl. & Or. 635-6 ; Taylor v. Salmon, Id.. 
 141-2; Harvey v. Harvey, 4 Beav. 220-2; Heynolds ^r. Per- 
 kins, Amb. 565. 
 
 In my apprehension, it is no good answer' to siay, that the 
 injured party may have his remedy in the State courts, where 
 service may be had on non-resident defendants bypublicatiou 
 
'508 Injunction. 
 
 of sninmons. Tlie constitution and the laws entitle parties in 
 certain cases to seek redress in the national courts, and the 
 class of cases mentioned is the very one in which the remed j 
 in the national courts is most valued by litigants, and this 
 circuit most frequently sought. Besides, it is a mere acci- 
 dent if the State laws admit of acquiring jurisdiction in this 
 mode. I doubt whether many of the States, if any, east of 
 the Rocky Mountains, authorize a publication of summons at 
 all in that class of cases. If they do, when an action is com- 
 menced in a State court by a citizen of the State, and all the 
 defendants are citizens of another State or foreigners, it is 
 their absolute right to have a transfer to the national courts, 
 and a transfer by the defendants served in the State would 
 oust the jurisdiction, if any defendant should be a non-resi- 
 dent; for in the national courts service by publication could 
 not be recognized. Thus there would still be an evasion of 
 the remedy and a failure of justice. 
 
 To my mind there is an obvious distinction between torts 
 of the class to which this action belongs, wherein the injury 
 and right of action are several as well as joint, and actions 
 of partition for the canceling of contracts, settlement of part- 
 nersliip affairs and the like, wherein the decree is not binding 
 even on the parties before the court in the absence of a party 
 in interest. Such were the cases of Shields v. Barrow, 17 
 How. 139, and Barney v. Baltimore City, 6 Wall. 280- 
 
 In Ma/rJcer v. Marker, a tenant under a claim of right had 
 sold to a stranger a large quantity of timber still uncut and 
 standing on the premises occupied by him. A bill was subse- 
 quently filed to restrain the vendor from cutting the timber, 
 in order that he might fulfill his contract of sale, but without 
 making the purchaser a party. On objection for want of par- 
 ties, the court held that the purchaser was not an indis])en- 
 sable party: Marker v. Marker, 9 Hare, 1, 5, 12, 16. This 
 ease determines the principle, for the decree must necessarily 
 have affected the rights of the purchaser of the timber. 
 
 Had Glauber's name been omitted there- could have been 
 no question as to jurisdiction, and he has not been brought 
 within the jurisdiction of the court by service or appearance. 
 My impression is, that the jurisdiction is not ousted by merely 
 naming him in the bill, when it appears that he can not be 
 
Cole Co. v. Virginia and Gold Hill Co. 509 
 
 served. Glauber himself is not present to make, and he does 
 not make, the objection to the jurisdiction, and the other 
 parties who do raise the objection are in no way aifected bj 
 his absence, or by his being named in the bill. But, how- 
 ever that may be, since he might have been omitted in the 
 first instance to prevent an ouste't of the jurisdiction as to 
 the other parties, I see no reason why the bill may not now 
 be amended, before he is brought in, by omitting his name 
 for the same purpose, without prejudice to the motion for an 
 injunction, and the complainant asks leave to amend. I can 
 perceive no good reason why leave should not be granted. 
 
 As to the merits. The leading and material facts ^lleged 
 showing the right to the water in question, as between the par- 
 ties to the action, are not denied by the affidavits of the defend- 
 ants. The water, as is shown by the bill, was discovered and 
 actually appropriated by the plaintiff, aijd was enjoyed by it 
 for many years, it having been sold to and paid for by the de- 
 fendant, the Gold Hill Water Company, for several years prior 
 to September, 1870. The plaintiff, upon the facts alleged, was 
 also necessarily in actual possession of the land out of which 
 the water issued for the purpose of its tunnel, and of taking 
 and enjoying the water, and so far as was necessary to the 
 accomplishment of these objects. Upon the facts, as they 
 appear in the bill and affidavits of the moving party, the com- 
 plainant was the first actual appropriator ofthe water, and it 
 acquired the right as against the defendants, if capable of so 
 acquiring it. 
 
 It is urged that plaintiff was incorporated for mining pur- 
 poses only, and that it, consequently, has no capacity to ac- 
 quire a right to the water. But water is required for mining 
 purposes, and in the before mentioned lease to the defendant, 
 the Virginia and Gold Hill Water Company, the complainant 
 reserved a portion of said water, sufficient for its mining pur- 
 poses, and only sold the remainder. 
 
 So far as required for mining purposes, a capacity to ac- 
 quire the right to water necessarily exists as incident to the 
 business of mining. But suppose, in pursuing a mining en- 
 'terprise, other valuable things are found iii the path of the 
 work, can not the corporation appropriate and use them to 
 defray its many expenses, or enhance its profits? Must thcy 
 
610 Injunction. 
 
 lie passed by and allowed to go to waste for want of a capacity 
 to make them available, when the corporation can in fact ren- 
 der them available and useful in contributing to the success 
 of the main enterprise? 
 
 May it not avail itself of all the incidental results of labor 
 necessarily expended in pftrsuit of the real object for which 
 the -corporation was created, because some of these re&ults were 
 not made a specific object to be attained? 
 
 If a company is incorporated to mine for silver only, must 
 it discard any gold that it may find in its mine, or in excavat- 
 ing to reach its mine? or if it should chance to fall upon a 
 nest of diamonds in the bowels of the earth while running a 
 drift for its silver oi*es, must it pass by the glittering treasures 
 with averted ej'es, because it has no legal capacity to pick 
 them up and appropriate them to the expenses of the work, or 
 an enhancement of the profits of the enterprise? 
 
 Running a tunnel to enable the plaintiff^ to reach its ledge 
 is certainly a legitimate part of the business of mining. Why 
 may it not appropriate everything valuable, not belonging to 
 anybody else, that turns up in the line of the excavation, to 
 pay the expenses of the work, or enhance the profits of the in- 
 vestment? Is it not one of the incidents to the work which 
 the party developing it may render available? 
 
 In the affidavits filed the defendants disclaim the idea that 
 they are running, the Nevada Tunnel for the purpose of ob- 
 taining the water in question, but insist that they are running 
 for the purpose of developing mines belonging to other par- 
 ties. To that extent then the Virginia and Gold Hill "Water 
 Company, at least, is itself doing that which it has no legal 
 capacity to do. 
 
 But it is enough to say that the defendants, whether cor- 
 porations or natural persons, are not in a position to defend a 
 trespass, on the ground that the plaintiff has no legal capac- 
 ity to acquire the right in question; that the plaintiff' may, 
 legitimately, acquire a right to sufficient water for its mining 
 purposes, is clear. Having the capacity to a limited extent, 
 at least, to acquire a water right, whether they have assumed 
 to acquire a larger right than their wants justify, or whether 
 they use the water .discovered and appropriated in the prog- 
 ress of their work for other purposes than mining, is no con- 
 cern of defendants. 
 
Cole Co. v. Virginia and Gold Hill Co. 5H 
 
 A party who has trespassed upon the actual possession of 
 the complainant can not defend on that ground. It is a ques- 
 tion between the corporation and the government. By ex- 
 press provision of statute, corporations are usually limited in 
 their purchases of real estate, for instance, to such as are 
 actually necessary to the exigencies of their .busiiiess. But 
 suppose a much larger amount should be conveyed to a cor- 
 poration than it was authorized to take, it would not be con- 
 tended, I apprehend, that a trespasser who had taken possession 
 of a portion of such excess of land, could successfully set up 
 a want of capacity in the corporation to take as a defense to 
 an action of ejectment by the corporation. As between the 
 party despoiled and the wrongdoer, the courts will not enter 
 upon this inquiry: Far. d) M. Bh. of Mil. v. D. & M. R. R. 
 Co., 17 Wis. 372; Austin Glass Co. v. Dewey, 16 Mass. 94; 
 Whitman M. Co. v. Baker, 3 Nev. 386; Natoma 'Water <& 
 M. Co. V. Clarkin, 14 Cal. 552. 
 
 The defendants do not admit that tliey have been running 
 their tunnel for the express purpose of cutting off the water 
 in question, as alleged in the bill. They would hardly have 
 the boldness to set up a right to take the water from plaintiff 
 if it is, in fact, the first appropriator. 
 
 They allege their object to be to reach and develop certain 
 mining claims. I am by no means satisfied that it is not the 
 sole object of all the defendants to the action to secure tliis 
 water. 
 
 The Virginia and Gold Hill Water Company was organized 
 for the purpose of supplying Virginia City and Gold Hill 
 with water, and any other purpose, as an end to be attained, 
 than the procuring of water, would be wholly foreign to the 
 objects of its incorporation. And the other defendants do' 
 not satisfactorily appear to have any interest in the mining 
 claims set out in the affidavits. 
 
 The contracts set out in the defendants' affidavits, besinning 
 with the principal one of April 29, 1867, have all been en- 
 tered into long since the complainant discovered and appi-o- 
 priated said water, and leased it to the first defendant named 
 in the bill, and that contract expressly refers to water as the 
 principal object sought. The snbseq uent contracts are stated to 
 have been made in pursuance of the provisions of tliat con- 
 
512 Injonctiox. 
 
 tract, and to carry it ont. Water, then, frym the date of those 
 contracts, at least, mnst have been the object of the defend- 
 ants and their grantors, and the supply of water in question 
 was known to exist, for it had already been discovered and 
 appropriated, and it does not appear that there is any other 
 known supply on the line of the defendants' tunnel. 
 
 The tunnel, since that time, has been excavated in a nearly 
 direct line toward a point some thirtj'feet in altitude imme- 
 diately^underneath the point where complainants appropriated 
 the water, until said point was reached, and tiie water thereby 
 taken. 
 
 There can be no doubt upon the facts as they now appear, 
 that, but for the acts of the defendants in running their tun- 
 nel below that of complainant, the water whicli now flows 
 through defendants' tunnel would still flow through the tun- 
 nel of complainant, as it was wont to do in times past. The 
 water ceased to flow in complainant's tunnel witliin a few 
 liours after it was struck iu defendants' tunnel. Indeed, this 
 is not denied. If then, the defendants excavated their tunnel 
 expressly to cut off this water, before discovered and appropri- 
 ated, and divert it from the complainant, their act is wrong- 
 ful. 
 
 If, on the other hand, this was not their object, but the 
 object was to prospect and develop claims owned by them, 
 lying to the westward of complainant's ledge, and the water 
 was necessarily diverted by running their tunnel at the place 
 indicated, it was still wrongful, unless they hnd a right to so 
 run it, regardless of the appropriation by complainant. Had 
 they such a right? 
 
 Sio utere tuo ut alienum non Icedas, is one of the time- 
 honored maxims of the law, and I do not perceive why it 
 should not apply in this case. 
 
 I know of no principle of law that permits one man to de- 
 stroy the property of another, or invade the rights of another, 
 in order to enable him the more conveniently to obtain access 
 to, and use his own. 
 
 It may be that, in a mining country situated as this is, a 
 court would not restrain a party from merely running a tun- 
 nel through his neighbor's ledge far below the surface, in 
 order to reach his own, wljun it could be d ,ne witiioiit material 
 
Cole Co. v. Virginia and Gold Hill Co. 513 
 
 damage, and there is no a})propriatioa of his neighbor's 
 property involved in the proceeding. To do so, miglit be to 
 throw unreasonable obstacles in the way of carrying on great 
 and highly important enterprises. But however that may be, 
 1 know of no principle that would justify the owner of one 
 ledge or mine, in absolutely destroying the mine or property 
 of another, not held subject, or in subordination to, the right 
 of the party working the destruction, in order to conveniently 
 reach his own. This would be a palpable violation of the 
 maxim cited. 
 
 "Water is a highly important element in conducting mining 
 enterprises in California and Nevada, and it is verj' generally 
 known that it is scarce in Yirginia, and the supply of this 
 indispensable necessity for domestic and other uses to the 
 people of Yirginia City is almost all, if not wholly, derived 
 from mining tunnels. A stream of water, therefore, thus 
 found in a tunnel excavated for mining purposes, is often as 
 valuable to the possessor as the mine itself, and to take any 
 such supply of water from one who has acquired a right to it, 
 by means of a tunnel excavated by another party not having a 
 superior right, for the purpose of prospecting or working his 
 own mine, is as clearly a violation of the maxim as the de- 
 struction of a neighbor's mine in the same mode. 
 
 The authorities cited to the point that, where one has a 
 spring on his own land, supplied by percolating water, coming 
 from his neighbor's premises, such neighbor may, by digging 
 on his own land, cut off the supply, admitting them to be cor- 
 rect, do not appear to me to reach this case. 
 
 The defendants do not appear, by the affidavits, to have 
 made the diversion by digging in their own lands. The water 
 is not shown to have come from their own ledges or from their 
 immediate vicinity, or from any land to which they have a 
 prior right. It does not satisfactorily appear that any one of 
 the ledges mentioned in the papers, lying west of or beyond 
 complainant's ledge, that conld be reached or prospected by 
 defendants' tunnel, is a prior location to that of complainant':?, 
 or that defendants have a prior right to anything in tlie 
 line of their tunnel to the west of complainant's ledge. The 
 diversion is accomplished, taking the view most favoralile to 
 the defendants, bv running a tmmel, tlirough other lands iti 
 VOL. vii.— 33 
 
514 Injunction. 
 
 search of ledges claimed by themselves, and ledges, too, the 
 location of which, if they have any real existence, seem 
 as yet, and according to defendants' own alSdavits, after a 
 ten years' search, to be entirely unknown. In doing this, 
 they ran directly beneath the place where the complainant 
 appropriated the water on the same land, and cut it off from 
 below. A very different condition of things from that which 
 existed in the cases cited. 
 
 I presume it would not be maintained that defendants, in 
 searching for their own mine, could run their tunnel for that 
 purpose directly under complainant's tunnel for its entire 
 length, aud so near it that complainant's tunnel would] fall in 
 and be destroyed, or thus destroy any essential part of it not 
 passing through defendants' own ledge, or ground to which 
 they have a prior right. This would be an injury of a strictly 
 analogous kind. 
 
 The facts are not fully developed, and without a full dis- 
 cussion of the point at this time, it is sufficient to say that, in 
 my judgment, as the case is now presented by the bill and 
 affidavits, the matters shown by defendants are not sufficient 
 to overthrow the case made by the complainant. I think it 
 very apparent, upon the case as now presented as between the 
 parties, that the complainant has the prior right to the water, 
 and that it has been wrongfully cutoff and diverted by means 
 of defendants' tunnel. 
 
 It is shown, and this does not seem to be seriously contro- 
 verted, that the water can be restored by building a water- 
 tight wall or bulkhead across the tunnel at a point indicated. 
 But it is urged that the injury has been committed, and that 
 this being'so, the court will not, on motion for a preliminary 
 injunction, issue a mandatory writ, affirmatively commanding 
 the performance of an act such as to fill up a tunnel, rebuild 
 a wall that has been demolished, and the like; and so the 
 authorities seem to be. 
 
 But while this seems to be an established rule, it also ap- 
 pears to be well established that tlie result sought may be 
 accomplished by an order merely restrictive in form. For 
 example, if the water of a stream be raised by means of a dam 
 so as to wrongfully flood a party's land above, or obstruct 
 with back water a mill situated higher up the stream, while 
 
Cole Co. v. Virginia and Gold Hill Co. 515 
 
 the court will not direct the defendant, in terras, to remove 
 tlie dam, it will require hira to refrain from overflowing the 
 land or obstructing the mill, even though it be necessary to 
 demolish the dam in order to obey the injunction. So if a 
 party by means of a dam or canal should wrongfully divert 
 the water of a stream from the mill of his neighbor, clearly 
 entitled to it, the court would restrain the continuance of tlie 
 diversion, even though an obedience to the injunction should 
 render it necessary to remove the dam or fill up the canal: 2 
 Eden on Injunctions, by Waterman, 388; 3 Dan. Ch. Pr. 
 1767, and notes, last edition; Bobinson v. Lord Byron, 1 
 Bro. Ch. K 588; Lane v. Newdigate, 10 Yes., Jr. 192; Ran- 
 kinv. Huskisson, 4 Sim., 6 Eng. Oh. 13; Earl of Mixbor- 
 oxigh V. Brown, 1 Eeav., 29 Eng. Ch. 127; Murdock^s Case, 
 2 Bland, 470-1 ; Washington University v. Greene, 1 Mary- 
 land Ch. 502-4; N. E. J. B. Co. v. O. B. Co., 1 Coll., 28 
 Eng. Ch. 521; Spencer <& Son v. Bir. B. Co., 8 Sim., 8 Eng. 
 Ch. 193. 
 
 Under these authorities, by whatever name judges may see 
 fit to call the injunction, the defendants may be restrained 
 ■from continuing to cut off and divert the water in question, 
 even though it should be necessary for them to fill up, or build 
 a water-tight barrier across the tunnel, to accomplish the end 
 sought. 
 
 Upon the facts as now presented, I thiiik the water is 
 wrongfnlly diverted from complainant's tunnel by means of 
 the tunndl of defendants, and that complainant is entitled to 
 a temporary injunction restraining defendants from continu- 
 ing the diversion till the rights of the parties can be more 
 fully ascertained. 
 
 For the present I will fix the amount of the injunction 
 bond at $15,000, with leave to defendants to move to increase 
 the amount, at any time, if this amount be deemed too small. 
 
 Let an order be entered granting leave to complainant to 
 amend its bill by striking out the name of Glauber as a de- 
 fendant, without prejudice to the motion for an injunction, 
 andaipon such amendment being made, and on filing a bond 
 to be approved by the clerk or district judge, in the sum of 
 ,$15,000, that a writ of injunction be issued by the clerk in 
 the form indicated, restraining the defendants, their attorneys, 
 
516 Injunction. 
 
 agents and servants from further, by means of tlieir tunnel or 
 otherwise, taking or diverting the water, or any portion there- 
 of, which heretofore flowed from complainant's ledge, and from 
 the spring or point mentioned in the bill of complaint, abont 
 forty-eight feet west of said ledge, through and out of com- 
 plainant's tunnel, or which would flow into and through said 
 complainant's tunnel from said sources but for the defendant's 
 tunnel; and from receiving said water, or any part thereof, 
 into and through said defendants' tunnel, and thereby de- 
 priving the said complainant thereof, until the further order 
 of the court. 
 
 ' The Cole Silver Mining Company v. The Vieginia 
 AND Gold Hill Water Company et al. 
 
 (1 Sawyer, 685. U. S. Circuit Court, District of Nevada, 1871.) 
 
 Parties beyond jnrisdiction— Seyerable interests. It is a prenei-al rule 
 in equity that all persons materially interested in the matter in contro- 
 versy should be made parties, in order that complete justice may be 
 done and a multiplicity of suits be avoided. If, however, some of the 
 parties reside beyond the jurisdiction of the court, and the interests of 
 those present are severable from the interests of those absent, the court 
 will proceed to a decree. 
 
 ' Preliminary injunction reqniringr substantive act. In special cases a 
 court of equity will, on a preliminary application, issue an injunction, 
 in a restrictive form, though its obedience would require the perform- 
 ance of a substantive act. 
 
 ' Answer upon information. Denials of the equities of a bill, if made on- 
 ly upon information and belief, will not justify the dissolution of an in- 
 j auction, /and the allegation of new matter upon information and belief 
 is equally objectionable. 
 
 Motion to dissolve an injunction on bill and answer. The 
 facts sufficiently appear in the opinion, and in the report of 
 the same case before Sawtee, circuit judge, on motion for an 
 injunction: 1 Saw. 470. 
 
 • S. C, ante, p. 503. 
 
 " Mexhorough v. Bower, 2 M. R. 92; Falmouth v. Tnnus, Mosely, 87; 7 
 M. R. 503, note 3. 
 « Moore v. F err ell, 7 M. R. 281; U. S.\. Parrott, 7 M. R. 336. 
 
GoLE Co. V. Virginia and Gold Hill Co. 517 
 
 Mitchell & Stone, and S. W. Sanderson, for complain- 
 ants. 
 
 E. S. Mesick, and Williams & Bixlee, for defendants. 
 
 Field, J. 
 
 This is a motion to dissolve an injunction issued upon the 
 bill of complaint. It is made upon three grounds: 
 
 1. That Herman Glauber, who is a citizen of the State of 
 California, is an indispensable party defendant in the suit, 
 without whose presence the court can not proceed to a decree. 
 
 2. That the injunction, though preventive in form, is man- 
 datory in fact, and an injunction of this character can not 
 issue upon an interlocutory application. 
 
 3. That the equities of the bill are fully denied by the an- 
 swer. 
 
 I. Tiie question whether Glauber is an indispensable par- 
 ty depends upon the further question whether he is materially 
 interested in the matter in controversy or object of the Suit, 
 and that interest would be necessarily affected by any availa- 
 ble decree consistent with the case presented by the bill. 
 
 It is undoubtedly a general rule in equity that all persons 
 materially interested in the matter in controversy, or object of 
 the suit, should be made parties in order that complete justice 
 may be done'and a multiplicity of suits be avoided. And 
 usually wlien it appears that persons thus interested are not 
 brought in, the court will order the case to stand over until 
 they are made parties. A court of equity^ as has been said 
 by a distinguished chancellor, delights to do complete justice, 
 and not by halves. But sometimes from the residence of par- 
 ties thus interested, the court is unable to bring them all be- 
 fore it. Particularly is this so with the Circuit Court of the 
 United States, which possesses no power to authorize a con- 
 structive service of process upon absent or non-resident de- 
 fendants, and which can only exercise its jurisdiction in that 
 class of cases depending upon the citizenship of the parties^ 
 where all the parties, however numerous on one side, are from 
 a State different from that of the parties on the other side. In 
 all such cases, the court will consider whether it is possible to 
 
518 Injunction, 
 
 determine the controversy between the parties present, with- 
 out aflfecting the interests of other persons not before tlie 
 court, or by reserving their interests. If the interests of those 
 present are severable from the interests of those absent, such 
 determination can generally be had, and the court will proceed 
 to a decree. But if tiie interests of those present and those 
 absent are so interwoven with each other that no decree can 
 possibly be made affecting the one without equally operating 
 upon the other, then the absent persons are indispensable 
 parties, without whom the court can not proceed, and, as a 
 consequence, will refuse to entertain the suit: Shields v. 
 Ban'ow, 17 How, 130; Barney v. Baltimore City, 6 Wal- 
 lace, 280. 
 
 Tiie inquiry then is this: whether Glauber possesses any 
 interest in the controversy, or object of the suit, which is so 
 interwoven with that of the other defendants, that no availa- 
 ble decree consistent with the case presented by the bill can 
 be rendered against them, which will not necessarily affect 
 him. The suit is brought to prevent a diversion of water of 
 which the complainant claims to be the owner hy discovery 
 and prior appropriation. The water, or, which amounts to the 
 same thing, the exclusive use of it, is the matter in contro- 
 versy, and the substantial object of the suit is to preveut any 
 interference with such use by the defendants. Glauber, accord- 
 ing to the allegation of the bill, is not interested in the water 
 in controversy, but only in the tunnel by meauS of which the 
 water is diverted. 
 
 Now if a decree can be rendered which will secure to the com- 
 plainants the exclusive use of the water, and at the same time 
 leave the right and interest of Glauber in the tunnel unim- 
 paired, the objection founded upon his absence as a party 
 defendant will not be tenable. The learned counsel of the 
 defendants intimated on the arguments of the case, that 
 should the court ultimately determine that the complainant is 
 entitled to the water it might be necessary to decree that the 
 tunnel be filled up. If only a decree of that character can be 
 rendered to give protection to the complainants' rights, then 
 undoubtedly Glauber is an indispensable party. But the 
 complainants' counsel suggest several forms in which a decree 
 may be made protecting the asserted rights of the complain- 
 
Cole Co, v. Virginia and Gold Hill Co. 519 
 
 ants without in any respect trenching upon Glauber's rights 
 in the tunnel. The defendants might, for instance, be re- 
 strained from interfering with the water or performing acts 
 to prevent the resumption by the complainants of its posses- 
 sion and use. It is stated that even if the defendants should 
 not be decreed to do any specific act, such as the erection of a 
 buljihead, or the restoring of the water diverted, a decree 
 would not be altogether fruitless which, would allow the com- 
 plainants to pump the water from the bed of the Nevada 
 tunnel into its own tunnel, provided no counter work should 
 be carried on in the Nevada tunnel to prevent such pump- 
 ing, or allow the complainants to resume possession of the 
 water at the mouth of the tunnel. A decree which would en- 
 join the defendants from opposing the complainants' resump- 
 tion of the water in either of these modes , would substantially 
 accomplish the objects of the suit, and at the same time leave 
 the Nevada tunnel and the interests of Glauber therein as 
 they existed previously. 
 
 It would certainly be going a great way, and not entirely 
 consistent with proper respect for my associate, who is pos- 
 sessed in the circuit court with equal authority with myself, 
 if I should undertake to determine, against his conclusions 
 upon substantially the same representation of facts, without 
 leave first granted for a re-argument of the question, that 
 Glauber is an indispensable party, and thus decide in advance 
 of the presentation of the entire case, that no decree could 
 possibly be rendered which would afford protection to the 
 complainant without infringing upon the rights of the absent 
 Glauber. I shall leave the matter to his determination, simply 
 observing that in a case of this kind, when the absent person 
 alleged to be interested would, if brought into court, oust its 
 jurisdiction, I should follow the course suggested by Mr. 
 Justice Story, in West v. Randall, 2 Mason, 196, and strain 
 hard to give relief as between the parties before the court. 
 
 II. The injunction, although preventive in form, is un- 
 doubtedly mandatory in fa.ct. 
 
 It was intended to be so by the circuit judge who granted 
 it, and the objection which is now urged for its dissolution 
 was presented to him, and was fully considered. I could not 
 with propriety reconsider his decision, even if I differed from 
 
520 Injunction. 
 
 him in opinion. Tlie circuit jud^e possesses, as already stated, 
 equal authority witli myself in tlie circuit, and it would lead 
 to unseemly conflicts if the rulingsof one judge upon a ques- 
 tion of law, should be disregarded, or be open to review by 
 the other judge in the same case. 
 
 But were I not restrained by this consideration from inter- 
 fering with the order of the circuit judge, I should hesitate 
 before dissolving the injunction upon the ground stated. The 
 benefit of the preventive remedy afforded by courts of equity 
 in the process of injunction would often be defeated, if the 
 remedy only extended to cases where obedience would not re- 
 quire any affirmative acts on the part of tlie party enjoined. 
 
 The owner of flumes, aqueducts, or reservoirs of water, 
 might, for instance, flood his neighbor's fields by raising the 
 sluice gates to these structures, and if the flowing should uot 
 be speedily stayed, might destroy the latter's crops; and yet, 
 according to the argument of the learned counsel, no injunc- 
 tion could issue to restrain the owner from continuing the 
 flood, if obedience to it should require him to do the simple 
 affirmative act of closing his gates. The person whose fields 
 were inundated and whose crops were destroyed, in the case 
 supposed, would find poor satisfaction in being told that he 
 must wait until final decree before any process could issue to 
 compel the shutting of the gates, and he must seek compensa- 
 tion for the injuries his property may suflierin the meantime, 
 in an action at law. 
 
 There is no species of property requiring more frequently 
 for its protection and enjoyment the aid of a court of equity 
 and particularly of its preventive process of injunction, than 
 rights to water. For purposes of mining as well as for ordi- 
 nary consumption, water is carried, in the mining regions of 
 Nevada and California, over the hills and along the mount- 
 ains, for great distances, by means of canals and flumes and 
 aqueducts constructed with vast labor and enormous expendi- 
 tures of money. Whole communities depend for the success- 
 ful prosecution of their mining labors upon the supply thus 
 furnished; and it is not extravagant to say that much of the 
 security and consequent value of this species of property is 
 found in the ready and ample protection which courts of equity 
 aff'ord by their remedial processes of injunctions, anticipating 
 
Cole Co. v. Virginia and Gold Hill Co, 521 
 
 tlireatened invasions npon the property, restraining the con- 
 tinuance of an invasion when once made, and preserving the 
 property in its condition of usefulness until the conflicting 
 rights of contesting claimants can be considered and deter- 
 mined. The limitation of the process to cases calling for no 
 affirmative action on the party enjoined would strip the proc- 
 ess in a multitude of cases of mucli of its practical beneiit. 
 
 I am aware that there are adjudications of tribunals of the 
 highest character denying the authority of a court of equity, 
 on a preliminary application, to issue an injunction, even in 
 a restrictive form, when its obedience would require the per- 
 formance of a substantive act. 
 
 Such is the case of Atiden/ried v. The Philadelphia ds Bead- 
 ing Railroad Company, recently decided in the Supreme 
 Court of Pennsylvania, to which my attentionjias been called 
 by the defendants' counsel (since reported in 68 Penn. State 
 Rep. 370.) The opinion in that case was delivered by Judge 
 Shaeswood, who is a jurist of national reputation, and any- 
 thing which falls from him is justly entitled to great consid- 
 eration. ^ 
 
 He states that the authorities, both in England and in 
 this country, are very clear that an interlocutory or prelimi- 
 nary injunction can not be mandatory. By this he means, I 
 suppose, that the authorities show that such an injunction 
 can not be mandatory in form, for he refers to the case of 
 Lane v. Newdigate, 10 Yesey, 193, wiiere Lord Eldon ordered 
 an injunction to be drawn so that, although restrictive on its 
 face, it compelled the defendants to do certain specific things. 
 Of that case the learned judge observes that it is not a prece- 
 dent which ought to be followed in any court, and that a 
 tribunal which finds itself unable directly to decree a thing, 
 onght never to attempt to accomplish it by indirection. 
 
 Notwithstanding the great respect I entertain for the opin- 
 ions of Judge Sharswood, and for the decisions of the Supreme 
 Court of Pennsylvania, I am not prepared to assent to the 
 view of the authorities stated in tiie case cited, nor to t'le con- 
 clusion there expressed that the cases in England ought not 
 to be followed in any instance. 
 
 Certain it is that the jurisdiction of the court of chancery 
 in England to decree in special cases upon motion the issue of 
 
522 Injunction. 
 
 injunctions, whiijh, though restrictive in form, may still re- 
 quire for their obedience the performance of substantive acts, 
 has been uniformly maintained since the time of Thurlow. In 
 liob'mson v. Byron, 1 Brown's Chancery Cases, 588, a motion 
 was made for injunction upon atfidavits, statinj? that since 
 April 4,. 1785, the defendant, who iiad large pieces of water in 
 his park supplied by a stream which ilowed to the mill of the 
 plaintiff, had at one time stopped the water, and at another 
 time let in tlie water in such quantities as to endanger the 
 mill. The Lord Chancellor, Thurlow, ordered an injunction 
 to restrain the defendant "from maintaining or using his 
 shuttles, flood-gates, erections and other devices, so as to pre- 
 vent the water flowing to the mill in such regular quantities 
 as it had ordinarily done before the fourth of April, 1785." 
 The defendant' was, therefore, compelled by this injunction 
 to remove such flood-gates and other erections as he had con- 
 structed, if they impeded the regular flaw of the water as it 
 had existed before the date designated. 
 
 In Lane v. Newdigatc, 10 Yesey, 192, already mentioned 
 as referred to by Judge Siiarswood, the plaintiff was assignee 
 of a lease granted by the defendant for the purpose of erecting 
 mills and other buildings, with covenants for the supply of 
 water from canals and reservoirs on the defendant's estates, 
 reserving to the defendant the right of using the water for his 
 own collieries. The bill prayed generally that the defendant 
 might be decreed to use and manage the waters of the canal 
 so as not to injure the plaintiff in the occupation of his manu- 
 factory, but particularly that the defendant might be restrained 
 from using certain locks, and thereby drawing oft' the water 
 which would otherwise run to and supply the manufactory, 
 and be decreed to restore a particular cut for carrying away 
 the waste waters and a certain stop-gate, and to restore the 
 banks of the canal to their former height, and also to repair 
 such stop-gates, bridges, canals and towing-paths as existed 
 previous to the lease, and to remove certain locks since made. 
 Upon motion for an injunction, the Lord Chancellor, Eldon, 
 expressed a doubt whether it was according to the practice of 
 the court to decree repairs to be done, but finally made an 
 order restraining the defendant from impeding the plaintiff 
 in the use and enjoyment of the demised premises and the 
 
Cole Co. v. Virginia and Gold Hill Co. 523 
 
 mills erected thereon, and the privileges granted by the lease, 
 by continuing to keep the canals, or the banks, gates, locks, 
 or works out of repair; and from preventing such use and en- 
 joyment by diverting the water or the use of any locks erected 
 by the defendants, or by continuing the removal of the stop- 
 gate, the chancellor observing at the same time that the in- 
 junction would create the necessity of restoring the stop- 
 gate. 
 
 In Bankin v. Huskisson, 4 Simons, 13, the defendants 
 were restrained on motion by Vice-Chancellor Shadwell from 
 continuing the erection of stables on certain premises agreed 
 to be laid out. as an ornamental garden, adjoining a club- 
 house, and from preventing such part of the building as was 
 already erected from remaining thereon. They were there- 
 fore compelled to remove the building already commenced. 
 
 In Hepburn v. Lordon, 2 Hemming and Miller, 345, the 
 defendants were restrained, upon motion by Vice-Chancellor 
 Wood, from allowing inflammable damp jute deposited on 
 premises adjoining those of the plain tift, to remain there, and 
 frorli bringing any more in such quantities as to occasion 
 danger to the plaintiff's property. 
 
 Other cases to the same purport might be cited, but these 
 are sufficient, I think, to show that a court of equity has 
 jurisdiction to issue, upon an interlocutory application, an 
 injunction which will operate to compel the defendants, in 
 order to obey it, to do substantive acts. It is a jurisdiction 
 which should only be exercised in a case where irreparable 
 injury would follow from a neglect to do the act? required. 
 Some of the adjudged cases evince a disposition on the part of 
 the court to restrict rather than enlarge this jurisdiction. 
 Blakemore v. Glamorganshire Canal Company, 1 Mylne and 
 Keen, 154. Undoubtedly the general purpose of a temporary 
 injunction is to preserve the property in controversy from waste 
 or destruction or disturbance until the rights and equities of 
 the contesting parties can be fully considered and determined. 
 Usually this can be effected by restraining any interference with 
 it; but in some cases the continuance of the injury, the com- 
 mencementof which hasinduced the invocation of the authority 
 of a court of equity, would lead to the waste and destruction of 
 the property. It is just here where the sjjecial jurisdiction of 
 
524 iNjuNCTioiir. 
 
 the court is needed, to restore the property to that condition 
 in which it existed immediately preceding tlie commencement 
 of the injury, so that it may be preserved until final decree. 
 
 III. It only remains to consider whether the equities of 
 the bill are so fully denied by the answer as to justify the 
 dissolution of the injunction. 
 
 The material allegations of the bill are that the complainant, 
 in running certain tunnels into its mining claims, discovered 
 and appropriated the water iq controversy, and that the de- 
 fendants subsequently, by means of the Nevada tunnel, struck 
 the water, and diverted it from the complainant. These al- 
 legations are not positively denied by the answer. 
 
 The construction of the tunnels of the complainant and the 
 diversion of the water by the defendants through the Nevada 
 'tunnel are admitted. The discovery and prior appropriation 
 of the water by the complainant are only denied upon in- 
 formation and belief, and every denial wliicli relates to the 
 title of the water is made in a similar manner. 
 
 Denials in that form may be sufficient to raise an issue for 
 trial, but they amount, for the purposes of the motion, to no 
 more than hearsay evidence. They will not justify the dis- 
 solution of the injunction. 
 
 " The sole ground," says Mr. Justice Story, " upon which 
 the defendants are entitled to a dissolution of an injunction 
 upon an answer is, that the answer in efiect disproves the case 
 made by the bill, by the very evidence extracted from the con- 
 science of the defendant, upon the interrogation and discovery 
 sought by the plaintiff to establish it. But wiiat sort of evi- 
 dence can that be, which consists in the mere negation of 
 knowledge by the party appealed to? Such n citation affords 
 no presumption against the plaintiff's claims, but merely es- 
 tablishes that the defendant has no personal knowledge to aid 
 it or disprove it. It is upon this ground that it has been 
 held, and in my judgment very properly held, that if the 
 answer does not positively deny the material facts, or the 
 denial is merely from information and belief, it furnishes no 
 ground for an application to dissolve a special injunction." 
 Poor V. Carlton, 3 Sumner, 78; see, also, Roberta v. Amlerson, 
 2 Johns. Ch. 202; Ward v. Van Bokkden, 1 Paige, 100; 
 United States v. Parrott, 1 McAllister, 300. 
 
HiGGiNS V. Bakkee. 525 
 
 The same objection applies to the allegations respecting the 
 new matter relied upon to establish prior rights in the two 
 Scliiels, with whom the defendants claim to be in privity. 
 
 Upon inspection of the answer, it appears that all which 
 is stated in relation to the origin, working, continuance and 
 transfer to the defandants of the claims of these parties is 
 founded upon information and belief. 
 
 The statement does not purport to be made upon any per- 
 sonal knowledge possessed by the defendants, but only " ac- 
 cording to their information and belief." Allegations resting 
 upon this foundation furnish no ground for disturbing the 
 injunction. For all the purposes of this motion the case 
 stands precisely as tliough these allegations were omitted from 
 the answer. 
 
 The questions suggested by the learned counsel of the de- 
 fendants — whether the water exists in such state or condition 
 as to render its diversion under the circumstances, remediable, 
 or anything more than damnum absque injuria-; and whether 
 the injunction is consistent with the policy and license of the 
 general government to miners upon public lands — can be 
 better considered and more justly determined on thehearing, 
 after tlie entire facts of the case are developed by the evi- 
 dence. 
 
 Upon the case as presented, I am of opinion that the in- 
 junction should be continued until the hearing. The motion 
 to dissolve the injunction is therefore denied. 
 
 Motion denied. 
 
 HlGGINS V. BaEKEK ET AL. 
 
 (42 California, 233. Supreme Court, 1S71.) 
 
 ' Diversion of water — First appropriator protected to extent of liis 
 original d|tcll. The plaintiff constructed a ditch whereby he appro- 
 priated part of the waters of a stream. The defendants afterward ap- 
 propriated the balance. Subsequently the plaintiff dug another ditch 
 and diverted water thereby from the same stream. The plaintiff brought 
 suit for an injunction restraining the defendants from interfering with 
 plaintiff in the use of the water. At the trial the jury returned a special 
 
 ^K\M V. Laird, 4 M. R. 571; Fabian v. Cdllm, 5 M. R. 20. 
 
526 Injunction. 
 
 verdict that the new ditch did not divert enough water t« diminish the 
 quantity appropriated by defendants. The court thereupon entered a 
 judgment that the plaintiff is entitled to three hundred inches of 
 water (the capacity of plaintiff's first ditch), and enjoined the defend- 
 ants from disturbing the plaintiff in the use of that quantity. Held, 
 that the judgment was entirely consistent with the verdict and with 
 justice. 
 
 Appeal from the District Court of the First Judicial Dis- 
 trict, County di Santa Barbara. 
 
 The facts are stated in the opinion of the court. 
 
 J. Franklin Wii-liams, for appellants. 
 
 Chaeles E. Htjse, for respondent. 
 
 By the Court, Ceookett, J. 
 
 The plaintiff alleges that in 1867 he constructed a ditch, 
 whereby he appropriated, and thenceforth continued to use, 
 for milling and other useful purposes, the waters of a certain 
 creek flowing along the margin of his land; that afterward, 
 and whilst he was so using tiie water, the defendants with 
 force and violence tore down his dam, so as to prevent the 
 flow of water in the ditch, and refuse to permit him to main- 
 tain the dam, threatening again to destroy it if he should re- 
 build it; that the defendants are unable to respond in dam- 
 ages, and that the injury which he would suffer if the dam 
 is abated would be irreparable. The prayer is for damages, 
 and for an injunction restraining the defendants from inter- 
 fering with plaintiff in the use of the water. 
 
 The answer, after denying most of the material averments 
 of the complaint, sets up new matter, to the effect that the 
 first ditch constructed by the plaintiff was a small ditch, 
 carrying only a part of the water of the creek, leaving a 
 surplus, which the defendants appropriated for domestic pur- 
 poses and irrigation ; that after they had so appropriated the 
 surplus water the plaintiff constructed a new ditch of larger 
 capacity, which carried off and diverted all the water of the 
 creek from its natural bed, and entirely cut off that portion 
 
HiGGiNs V. Baekek. 527' 
 
 of the water which the defendants had appropriated. As 
 affirmative relief, they pray for damages against the plaintiff. 
 At the trial a jury was impaneled, to whom special issues 
 were submitted, and who found, in effect, tliat the construc- 
 tion of plaintiff's ditch in 1867 was an appropriation of the 
 waters of the creek to the extent of the capacity of the ditch, 
 which was sufficient to carry the greater portion, but not all 
 the water of the creek; that the plaintiff, therefore, did not 
 appropriate all tlie water of the creek; that in the spring or 
 summer of 1870 the plaintiff built a new d&,ra or ditch, which 
 di\^erted a portion of the water of the creek, but not enough 
 to diminish the quantity appropriated by the defendants. 
 Tlie court entered a.judgment fixing the quantity of water to 
 which the plaintiff is entitled at three hundred inches, which 
 it finds to have been the capacity of the plaintiff's first ditch, 
 and enjoining the defendants from disturbing the plaintiff in 
 the use and enjoyment of that quantity of water. But no 
 damages were awarded either to the plaintiff' or defendants. 
 From this judgment the defendants appeal on the judgment 
 roll alone, and insist that on the facts found by the jury the 
 injunction ought to have been dissolved and the complaint 
 dismissed. But I discover no error in the record. The 
 plaintiff first appropriated all the water which his original 
 ditch would carry, which the court finds was three hundred 
 inches; and the defendants afterward appropriated the whole 
 or a portion of the surplus. Subsequently the plaintiff coii- 
 strncted a new dam or ditch; but the judgment limits the 
 quantity of water to be diverted by the plaintiff to three 
 hundred inches, which is the amount originally appropriated, 
 and leaves all the surplus for the use of the defendants. The 
 judgment appears to me to be entirely consistent with the 
 verdict and with justice, so far as the facts arfe disclosed in 
 the record. 
 
 Judgment affir Tried. 
 
528 Injunction. 
 
 The West Point Ikon Company, Eespondent, v. 
 Reymert et al., Appellants. 
 
 (45 New York, 703. Court of Appeals, 1871.) 
 
 ' Irreparable injury— Multiplicity of suits. Mines, quarries and timber 
 are protected by injunction, upon the ground that injuries to and depre- 
 dations upon them are, or may cause, irreparable damage, and also with 
 a view to prevent a multiplicity of actions for damages that might 
 accrue from a continuous violation of the rights of the owners. 
 
 No suit essential where title clear. It is not necessary that plaintiff 's 
 right should first be established in an action at law, the evidence in the 
 case for the injunction showing a clear title in the plaintiff, and only 
 a sham title set up by the trespassing defendant. 
 
 Wairingr place and mode of trial. A defendant who is entitled to a trial 
 in a certain county by a jury waives these rights by submitting to a 
 trial by the court in a different county. 
 
 Form of acknowledgrment. The persons who acknowledged the execution 
 of a grant were by the commissioner certified "to be the persons who 
 executed the" deed: Held, that the certificate was a substantial com- 
 pliance with the act under which it was taken. 
 
 ^ Eeservation may operate as exception. A reservation in adeed will not 
 give title to a stranger, but it may operate, when so intended by the 
 parties, as an exception from the thing granted, and as notice to the 
 grantee of adverse claims as to the thing excepted or reserved. 
 
 Appeal from an order of the General Term of the Supreme 
 Conrt, in the Second Uistrict, affirming a judgment for the 
 plaintiff, on a trial by the conrt without a jnrj. 
 
 The place of trial named in the complaint is Putnam county ; 
 the ti'ial was had at Poughkeepsie, without any order for the 
 change of the place of trial, bnt without obj'ection at the trial. 
 
 The plaintiff claimed to be the owner of an iron, mine, known 
 as the " Pratt Iron Mine, " in Pntnam county. The defend- 
 ants deny the plaintiff's title to the mine, and claim under a 
 mining lease granted to them by Benjamin Forman, tlie sur- 
 face proprietor of the farm upon which the mine is located. 
 This action is for an injunction and damages. The question 
 on the trial was upon the plaintiffs title to the mine. Tlie 
 plaintiff proved title by a possession and claim of ownership 
 
 ■ Nichols V. .Tonen, 19 Fed. 8-5.5. 
 
 ' l^loan V. Lawrenee Furnaee, 5 M. R. 6-j9. 
 
West Point Iron Co. v. Reymert. 529 
 
 in one Abijah Pratt, Sr., his heirs, and their grantees down to 
 tiie plaintiff, for a period ,of at least fifty years; also by a 
 chain of paper title, commencing with a deed from John Bailey 
 to William W. Pratt, dated November 24, 1827, and ending in 
 a deed to the plaintiff. The officer taking the acknowledg- 
 ment of this Bailey deed certified " came before me" the grant- 
 ors, " known to me to be the persons who executed the within 
 deed," etc., January 14, 1828. Also, by producing the deeds 
 under which Benjamin Forman (the lessor of the defendants) 
 derives his title, in which deeds was a clause " reserving the 
 right to William W. Pratt to a vein of ore now wrought by 
 him on the premises. " 
 
 The defendants claim that they had expended mon^y in 
 good faith in developing the mine, in ignorance of plaintiff's 
 title, and claimed the right to be reimbursed for such outlay. 
 To answer this the plaintiff proved actual notice to the de- 
 fendants before they made the outlay, and that when Forman 
 executed the lease to defendants he told them he did not own 
 the Pratt mine, and had never owned it. 
 
 The court found and decided in favor of the plaintiff, and 
 granted the injunction prayed for. 
 
 Geoege W. Stevens, for the appellants. 
 
 Amasa J. Paekee, and E. A. Beewbtee, for the respond- 
 ent. 
 
 Allen, J. 
 
 The action was tried in the county of Dutchess, and by the 
 court without a jury, without objection on the part of the 
 defendants. If the trial should have been in Putnam, and by a 
 jury, it was for the defendants to assert their rights at the 
 trial; and by not then claiming them, they waived them, and 
 must be regarded as having assented to the place and mode 
 of trial. 
 
 It was a proper case for relief by injunction if the plaintiff's 
 
 right to the mine was established, and it was not necessary 
 
 that the right should be first established in an action at law. 
 
 The injury complained of was not a mere fugitive and tem- 
 
 voL. XV.— 34. 
 
530 Injunction, 
 
 porarv trespass, for which adequate compensation conld be 
 obtained in an action at law, but was an injury to the corpus 
 of the estate. 
 
 Mines, quarries and timber are protected by injunction, 
 upon the ground tliat injuries to and depredations upon them 
 are, or may cause, irreparable damage, and also with a view 
 to prevent a multiplicity of actions for damages that might 
 accrue from a continuous violation of the rights of the owners: 
 Livingston v. Livingston, 6 Johns. Ch. 497; Thomas v. Oak- 
 ley, l%Y&sey, 184; Story's Eq. Juris., § 929 e^ seg'. Equity 
 will interpose by injunction to prevent an encroaclimeut upon 
 the rights of a proprietor in a running stream, and will exer- 
 cise jurisdiction to compel a restoration of running water to 
 its natural channel: Corning v. Troy Iron and Nail Factory, 
 40 l&.Y. 19J. Thecertificateof acknowledgment of the grant 
 from Bailey and wife to William W. Pratt was sufficient in 
 form, the commissioner by whom the same was taken certify- 
 ing that the persons acknowledging the execution were known 
 to him "to be the persons who executed the" deed: Jackson 
 V. Gumaer, 2 Cow. 552; Troup v. Haight, Hopk. 239 ; Hunt 
 V. Johnson, 19 N. Y. 280. The certificate was a substantial 
 compliance with the act under wliicli it was taken: 1 R. L. 
 369, §§ 1, 2; and as it is only prima facie evidence of tlie 
 facts stated, and may be contradicted, and is in one of tiie 
 forms very generally followed, it ought not to be rejected for 
 want of a literal adoption of the very words of the statute. 
 Tiie plaintiff made a prima facie title to the mine, and 
 showed the use and occupation of it by those from whom title 
 was derived for a long series of years. The earliest recogni- 
 tion of the plaintiflF's title was in a deed, under which the de- 
 fendant's lessor derived his title from Thomas D. Denny and 
 wife to John and James Bailey, bearing date August 27, 1824, 
 conveying the tract of land within which the mine is situated, 
 and "excepting an ore bed conveyed to Abijah Pratt by Richard 
 D. Denny on the premises hereby conveyed." How Eichard 
 D. Denny had or acquired title to the ore bed does not appear, 
 but evidence was given that for a period of fifty years it had 
 been known and called the " Pratt Iron Mine." Abijah Pratt 
 was the ancestor of William W. Pratt, who, upon his death, 
 succeeded to the occupation of the mine, and to whom John 
 Bailey, who had acquired the right of his co-grantee, James 
 
West Point Ikon Co. v. Reymeet. 531 
 
 Bailey, in 1828, granted the ore bed or mine in perpetuity. 
 This grant was probably made to supply the place of that to 
 Abijah Pratt, which had been lost. 
 
 The plaintiff's title was derived from successory grants 
 from William W. Pratt. The only evidence of title in the 
 defendants was a lease from Benjamin Forman, dated August 
 25, 1866, for the terra of fifty years. The several grants 
 under which plaintiff claims were recorded in the proper 
 office and books; and the judge finds that the several owners, 
 respectively, were in possession of the mine during those re- 
 spective ownerships, and that the defendants, at the time they 
 took their lease; had actual notice that the lessor did not claim 
 and had no right to the mine. Forman derived title to the 
 locus in quo under and through the Baileys, who took title 
 under the deed from Thomas D. Denny, and all the deeds, in 
 the chain of title down to and including that to Forman, con- 
 tained a clause recognizing the right of William W. Pratt to 
 the mine by " reserving to William W. Pratt the right he 
 has to the ore bed and the right of way to the West Point 
 foundry, as now used," or in similar and substantially the 
 same words. A reservation in a deed will not give title to a 
 stranger, but it may operate, when so intended by the parties, 
 as an exception from the thing granted, and as notice to the 
 grantee of adverse claims as to the thing excepted or " re- 
 served." The plaintiff's title is independent of the reserva- 
 tion, which is only important here as evidence of the extent 
 of the grant to the defendants' lessor, and of notice to all 
 claiming under the grant of the existence of a title to the ore 
 bed in others. It is true that evidence was given that in 1868, 
 and after the commencement of this action, Forman obtained 
 a deed of the premises from the heirs at law of Kichard D. 
 Denny, but there was no evideuce that Kichard D. Denny 
 ever had any title other than that which he granted to Abijah 
 Pratt prior to 1824, or that he was ever in possession of the 
 premises, nor was there proof of any fact tending to show 
 that the pretended grantor had any title or estate to convey. 
 The plaintiff's title was abundantly established. That set up 
 by the defendants was sham. The judgment was in all re- 
 spects right, and should be affirmed. 
 
 All concur. 
 
 Jvdqment wfjlrmed. 
 
 !-> 
 
532 Injunction. 
 
 LocKWOOD ET AL,, Defendants in Error, V. Lunsfobd, 
 Plaintiff in Error. 
 
 (56 Missouri, 68. Supreme Court, 1874.) 
 
 ' No perpetual injunction before title settled. Equity will not usually 
 grant a perpetual injunction where the title is put in issue and where 
 the evidence leaves the title still in doubt, but will grant a temporaiy 
 writ till the title is settled at law; but upon the facts in this case, it was 
 held, that the title was not really in issue, and the perpetual injunction 
 was upheld. 
 
 Ii^uuction against trespasser— Insolvency. Where a mere trespasser 
 digs into and works a mine to the injury of an owner, 'an injunction 
 will be granted, and especially where such trespasser is insolvent. 
 
 Licensee after revocation is a trespasser. One engaged in mining under 
 a revocable license which license has been revoked, becomes a mere tres- 
 passer if he continues to mine after the revocation. 
 
 Error to Madison (Circuit Court. 
 
 The opinion states the facts. 
 
 W. N. Nolle and M. L. Claedy, for plaintiff in error. 
 
 B. Benson Cahoon and John F. Bush, for defendants in 
 error. 
 
 YoEiES, Judge, delivered the opinion of the court. 
 
 This was a petition for an injunction, filed by the plaintiffs 
 against the defendant, for the purpose of restraining the de- 
 fiendant from wrongfully digging and removing certain min- 
 erals from the lands claimed to belong to the plaintiffs. 
 
 It is charged by the petition that the plaintiffs are the 
 owners and proprietors of a confirmation grant and tract of 
 land, lying partly in the county of Madison and partly in the 
 county of St. Francois, State of Missouri, and known as Mine 
 La Motte; that the grantors under whom plaintiffs claim title 
 have had the uninterrupted possession of said land for more 
 than twenty consecutive years; that before and since plaintiffs 
 have come into the possession of said tract of land, the defendant 
 has unlawfully and forcibly had and occupied a small lot of 
 
 ' West Point Co. v. Reymert, 7 M. R. 528; OU Telegraph Co. v. Central 
 Co., 7 M. R. 555; Stevens v. Williams, 5 M. R. 449. 
 
LOCKWOOD V. LUNSFOKD. 533 
 
 ground, about forty feet square, being a part of said tract of 
 land (which lot is drescribed in the petition), known as the 
 "Lunsford Shaft" or "Sulphur Lead;" that said lot of 
 ground is mining or mineral land, the chief and sole value of 
 whicii consists in the lead ore, and other mineral deposits 
 which said ground contains; that the Mine La Motte claim or 
 conlirmation, of which said lot forms a part, is a large body 
 of land containing extensive deposits of lead and other ores, 
 on which said tract of land mining for said minerals or ores 
 is carried on under the authority and directions of plaintiflFs; 
 that the defendant has no title, either in law or equity, to the 
 said lot or parcel of mineral land, nor has he any right to the 
 possession thereof; that long before the purchase of said Mine 
 La Motte by plaintiffs, certain rules and regulations were 
 established by the former owners of said tract, for the purpose 
 of mining in and on the same, the tenor of which was that 
 parties desiring to work as miners thereon were required to 
 register their names, as miners, in a book to be kept by said 
 owners of said land for that purpose; that after said miners' 
 names were registered, they were permitted to go on said tract 
 and stake off a lot of land forty feet square, the description 
 of which was to be registered, when permission was given 
 them to work the same, upon condition that they should 
 deposit with the smelters of ore on said tract, one tenth of the 
 mineral mined, for the benefit of the owners of said tract of 
 land; that among said rules and conditions there was one by 
 which said miners were compelled to work the ground selected 
 by them, and upon their ceasing to work the same for ten 
 consecutive days, then the license or permit given them was 
 to cease and their claim to be wholly forfeited. 
 
 The petition alleged that the license or interest of the 
 miners under said rules were liable to be revoked or termi- 
 nated at any time that the owners saw fit, all of which terms 
 and conditions were well known to the miners; that when 
 notice was given to defendant by R. F. Fleming, as herein- 
 after to be stated, similar notices were given by the same 
 person to all other' miners working on said tract, under said 
 rules, at the same time with the defendant, and that upon re- 
 ceiving said notice all such persons, except defendant, deliv- 
 ered to said owners peaceable possession of their said lots of 
 nuneral lands so worked out by them; that neither plaintiffs 
 
584 Injunction. 
 
 nor those under whom they claim have ever leased said 
 premises or lot of mineral land to defendant, and the only 
 right he ever had in or to said premises was a parol license 
 or permission given him by the former owners of said Mine 
 La Motte tract, to dig for ore in the manner and under the 
 rules aforesaid; that the said lot is unlawfully and forcibly in 
 the possession of defendant; that plaintiffs have not since, or 
 before they became the owners of said Mine La Motte tract, 
 in any manner given the delendant, or any other persons, any 
 license or permission to occupy, work or mine in or on said 
 shaft or lead known as the "Lunsford Shaft," or any other 
 part of said tract of land ; that previous to the purchase of 
 said Mine La Motte tract of Eobert F. Fleming and others by 
 plaintiffs, due notice in writing was given to defendant by 
 said Fleming, for liimseli'and others, owners, demanding that 
 he deliver the immediate possession of all mineial grounds 
 worked by him as aforesaid; and the appurtenances, to the 
 said owners thereof; that subsequent to this notice, on the 6th 
 day of September, 1861, plaintiffs demanded in writing, of 
 defendant, the possession of said lot before worked by him; 
 tliat he refused to deliver or quit the possession or occupation 
 thereof, either to said Fleming or to plaintiffs; that imme- 
 diately after said notice by said Fleming, defendant ceased 
 mining operations in said "Lunsford Shaft," but forcibly de- 
 prived plaintiffs of the possession thereof, and subsequently 
 unlawfully commenced to work and mine the same, and now 
 continues to work the same. 
 
 The plaintiffs then further charge that said plaintiff. Lock- 
 wood, commenced an action of unlawful detainer against the 
 defendant, before a justice of the peace, and that he regularly 
 prosecuted said action to dual judgment, and recovered a 
 judgment against defendant for the possession of said lot and 
 premises, and costs; that a writ of restitution was duly issued 
 on said judgment, and placed in the hands of the proper 
 sheriff to be executed; that said officer refused to execute the 
 writ, and returned the same unexecuted on the 14th day of 
 October, 1869; that on the 18th day of October, 1869, de- 
 fendant, and other persons whose names are unknown, and 
 who were acting for, and in concert with the defendant, nur 
 lawfully and forcibly, and against the will of plaintiffs, com- 
 menced to mine in and remove ore from said sulphur lead, 
 
LOCKWOOD V. LuifSFOED. 535 
 
 and are still continuing so to do; that plaintiffs at said time 
 had and still have the exclusive right to said premises, and 
 to the possession thereof, which was well known to defendant; 
 that said defendant, and others working nnder him, intended 
 to and will, unless restrained by the order of this court, ex- 
 tract from and carry awaj' all of the valuable mineral from 
 said " Lunsford Shaft" or " Sulphur Lead," as aforesaid; that 
 said mineral is of great value, and the land is almost valueless 
 except for the mineral; that defendant is wlioUy insolvent, so 
 that a judgment at law would be unavailing, and that great 
 and irreparable injury will be done unless the defendant is re- 
 strained therefrom. An injunction is therefore prayed, and a 
 prayer for general relief. A temporary injunction was issued 
 by the judge of the court in vacation, and a writ issued re- 
 turnable to the next term of the court, at which time the de- 
 fendant appeared and answered the petition. 
 
 The answer denies that plaintiffs are the sole owners of the 
 Mine La Motte tractor lot in question, and charges that the 
 deed by which plaintiffs derive their title to an undivided part 
 of the lot is void, and the answer puts in issiie the whole facts 
 of the petition. The answer then sets up a claim to, and right 
 to occupy, said mine, and dig ore from the said "Lunsford 
 Shaft " as aforesaid, by virtue of a license or lease from the 
 former owners of said Mine La Motte tract, and under rules 
 and regulations promulgated by them, and that by virtue of 
 said license and rules he had a right to take the ore from said 
 mine, etc. 
 
 Plaintiffs filed a replication denying all affirmative matters 
 in the answer. 
 
 After the issues were thns framed, the defendant filed a 
 motion to dissolve the injunction before granted. This mo- 
 tion assigns a great many reasons for the dissolution of the 
 injunction, amongst which it is stated that the petition does 
 not state facts sufficient to entitle plaintiffs to the relief 
 prayed; that they have a remedy at law, and that the facts set 
 up in the answer amount to a full defense to the action, etc. 
 
 The cause was afterward taken up, and by the parties sub- 
 mitted to the court for hearing upon the issue joined. The 
 court, 'after hearing tJie evidence, found the facts for the 
 plaintiffs, and rendered a decree perpetually enjoining defend- 
 ant from taking ore from the mine in question, etc. 
 
536 Injunction. 
 
 The defendant filed a motion for a new trial, and in arreat 
 of judgment, which being severally overruled, he excepted, 
 and has brought the case to this court by writ of error. 
 
 The record in this case is a long one, and abounds in objec- 
 tions and exceptions, made by the different parties, to various 
 rulings of the court made during the trial of the cause, most 
 of which related to matters not really material to the rights 
 of the parties. It will therefore only be necessary to notice 
 those objections, raised in this court, which go to the merits 
 or the right of action or defense. 
 
 The plaintiffs, on the trial, after having offered evidence 
 tending to prove possession of the land in those under whom 
 they claimed for more than twenty years, offered in evidence 
 a deed from John A. Weber, Francis L. Valle and John Bet- 
 ton, to John H. Fry, for an undivided part of the title to the 
 tract of land known as Mine La Motte, the deed being dated 
 October 28, 1868. This deed was objected to on the ground 
 that its tendency was to prove title to the premises in the 
 plaintiffs, which fact, it was contended by the defendant, could 
 only be tried by a jnry. The plaintiffs also offered in evi- 
 dence a deed from the said Fry to plaintiffs for the same land, 
 dated March 6, 1869. This deed was also objected to by the 
 defendant on the same ground stated, to the deed from Weber 
 and others to Fry. This objection was overruled by the court 
 and this action of the court, it is insisted by the defendant, 
 was erroneous. 
 
 In this case the trial of the issues involved in the case was 
 submitted by the parties to the court, and in fact it is a case 
 that must have been tried by the court, the court having the 
 right under the statute to take the opinion of a jury upon 
 any specific question of fact involved: 2 Wag. Stat., 1041, § 13. 
 But the court was not bound to submit any such question of 
 fact to a jury. It is very true that courts of equity will not 
 usually grant a perpetual injunction in cases where the title 
 to the premises is put in question, and where from the 
 evidence in the case, the title appears to be in doubt, but 
 will in such cases only make a temporary injunction to re- 
 strain the parties until the title can be settled at law: Ech- 
 elkampv. Schroder, 45 Mo. 505; Storm v. Mann, 4 John. 
 Ch. 21. This objection does not, however, apply as to the ad- 
 missibility of the evidence, but it is a matter for the consid- 
 
LocKWOOD V. LitjsrsFOED. 537 
 
 eratioii of the chancellor upon the final determination of the 
 case: Hicks v. Michael, 15 Oal. 107. It may as well be 
 stated here that, from the evidence in the case and the defense 
 set np and relied on bj the defendant, he does not claim an 
 adverse title to the title of the plaintiffs, but he only claims a 
 license to work a mine from the grantors of plaintiifs, who 
 were always in possession of the land for at least twenty 
 years, until they delivered the possession to the plaintiffs. 
 So that upon the whole case there seems to be no reai ques- 
 tion as to the title, although the answer denies that the plaintiffs 
 are the sole owners of the land. The real question in the case 
 was as to the defendant's right under a license from the own- 
 ers to work the mines and extract the ores. The deeds were 
 therefore properly admitted in evidence. 
 
 The plaintiffs next offered in evidence a deed from li. F. 
 Fleming, administrator with the will annexed of Thomas 
 Fleming, deceased, to K. B. Lockwood, dated July 18, 1869; 
 also, a deed from Robert F. Fleming, as executor of Thomas 
 F. Fleming, deceased, to P. B. Lockwood, dated July 8, l!s69, 
 for the same lands or undivided interest therein; Also, a deed 
 from il. F. Fleming for himself and as executor of the will 
 of Thomas Fleming, deceased, to E.. B. Lockwood for the same 
 lands. Each and all of these deeds were-ob]ected to because 
 the plaintiffs had failed to snow any authority in the execu- 
 tors and administrators named therein to convey. The ob- 
 jection being overruled, the defendant excepted. 
 
 Plaintiffs then offered in evidence a deed from E. F. Flem- 
 ing, G. F. Fleming and thirteen others, purporting to be 
 the widow, heirs and representatives oi Thomas Fleming, de- 
 ceased, of Philadelphia, and of Thomas Fleming, lat" of 
 Madison county, Mo., to R. B. Lockwood, dated Octol)er 20, 
 1869. This deed refers to the ihree last deeds given in evi- 
 dence, and confirms each of said deeds in express terms, and 
 conveys by quitclaim the right, title and interest of such heirs 
 to the grantee in said deeds. This last deed was objected to on 
 the same ground for which the three last deeds were objected 
 to and on the ground that it was not shown that the p^r les 
 were the heirs of Fleming, as they were represented. The 
 plaintiffs also proved that part of the grantors were the real 
 heirs and representatives of Thomas Fleming, deceased. And 
 
538 iNJUIfCTION. 
 
 the defendant admitted that the title to Mine La Motte tract 
 of land was originally in the said Thomas Fleming, and in 
 Weber, Valle and Betton. The court properly overruled the 
 objection to all and each of the four last named deeds. T!ie 
 three first, by the provisions of the last, were adopted by the 
 last deed and made a part of it, and were admissible in evi- 
 dence as a part of the deed of confirmation of the heirs of 
 Thomas Fleming, deceased, and part of the grantors in said 
 deed were proved to be the proper children and heirs of 
 Thiim s Fleming, deceased, who, it is admitted by the de- 
 fendant, was a part owner of the land named. These admis- 
 sions of the defendant are conclusive as to the title being in 
 the grantees of Fleming's heirs, and the deeds were therefore 
 material and properly admitted in evidence. 
 
 It should be stated that by these deeds the land was con- 
 veyed to Lockwood for the use of himself and Scott. The 
 plaintiffs also offered in evidence the transcript of the pro- 
 ceedin<rs had before a justice of the peace, in which Lockwood 
 was- plaintiff, and defendant in this case was the defendant. 
 The action was an action of unlawful detainer, iu which 
 the plaintiffs had recovered a judgment for the premises 
 named in the petition, etc. This transcript was objected to 
 on several grounds, but the objections were overruled, and the 
 defendant excepted. It is only necessary to say in reference 
 to this transcript, that as I view this case, it was not material 
 to the plaintiffs' right of recovery, and could do neither good 
 to the plaintifis nor harm to the defendant, as the other facts 
 in the case are found by the court. The judgment would be 
 just the same without this evidence as with it. 
 
 The plaintiffs also introduced evidence tending to prove 
 that they had received the possession of the Mine La Motte 
 tract of land, from Valle, Weber and Betton, in part, and 
 from Fleming's heirs in part; that they received the possession 
 in March, 1869. 
 
 The evidence of the nlaintiffs was suflBcient to prove all of 
 the main facts stated in the petition. This is not seriously 
 disputed. But the defendant contends that the plaintiffs 
 could not have a perpetual injunction in this case, because 
 they had a remedy at law, and that the facts are not sufficient 
 to authorize any equitable relief. The i'acts of the case show 
 
LOCKAVOOD V. LlJNSFOED. 539 
 
 that the defendant was engaged in unlawfully, against the will 
 of plaintiffs, extracting and removing the ore from a valu- 
 able mine belonging to the plaintiffs; that the land was only- 
 valuable for the minerals which were being removed; that 
 defendant threatened to continue his work of extracting the 
 mineral from said land, to the great damage and destruction 
 thereof; that defendant was wholly insolvent, so that a judg- 
 ment at law would be unavailing. 
 
 It has for a long time been settled, that where a mere tres- 
 passer digs into and works a mine to the injury of the owner, an 
 injunction will be granted, and more particularly so where the 
 trespasser is insolvent, so that an action at law could not avail: 
 2 Sto. Eq. § 929; More v. Masini, 32 Cal. 590; Thomas v. 
 Oakley, 18 Yesey, 184; Merced Mining Company v, Fre- 
 mont, 1 Cal. 317. 
 
 The defendant set up a defense to this action, that he held 
 the mine out of wliich he was removing the mineral by vir. 
 tue of a lease or license from the grantors of the plaintiffs 
 to him, and that he was not, therefore, unlawfully removing 
 said mineral from said mine. The whole question as to the 
 defendant's rights under the evidence in the case, was fully 
 considered and passed on by this court in the case of ^Lunsford 
 V. The La Motte Lead Company, 54 Mo. 426. The facts in 
 that case- ill reference to the defendant's rights as a miner, and 
 the facts in this case, are identical in all of their material feat- 
 ures. . The same rules, regulations, etc., were relied on in each 
 ease. In that case we held, that under the evidence the defend- 
 ant was a mere trespasser in working the mines. We do not 
 propose to re-investigate this whole matter, but simply content 
 ourselves by referring to the opinion in that case. We suppose 
 that the real merits of this case were really settled, by that 
 case, except as to a question of costs. 
 
 There seems to be no substantial error in the case. TJie 
 jndgiment will, therefore, be affirmed. Judge Wagnee absent. 
 The other j udges concur. 
 
 ' Fost License. 
 
540 Injunction. 
 
 Magnet Mining Company, Kespondent, v. Page and 
 Panaca Silver Mining Company, Appellant. 
 
 (9 Nevada, 346. Supreme Court, 1874.) 
 
 • Effect of answer denying the equities of the bill. Where the answer to 
 a bill to restrain the working of a mine, fully and fairly denies both the 
 title and possession of complainant, no testimony being taken, and the 
 case standing on the pleadings alone, the injunction shoald be dissolved 
 until good reason appears for continaing it. The ordinary case of 
 alleged taking of ore out of a mine claimed by complainant is no ex- 
 ception to this rule. 
 
 Denial by answer taken as true. A complete denial by the answer is 
 taken as true upon a motion to dissolve an injunction when heard upon 
 bill and answer alone. 
 
 Appeal from the District Court of the Seventh Judicial 
 District, Lincoln County. 
 
 The plaintiff claimed to be the owner and in possession of 
 the quartz ledge known as the Panaca, on Panaca Flat, Ely 
 Mining District, Lincoln county, and that defendant, on April 
 16, 1874, entei'ed upon a portion of the same, and ejected 
 plaintiff therefrom to its damage in tlie sum of thirty thou- 
 sand dollars. The complaint also set forth that defendant 
 liad extracted from the mine valuable ores, and threatened to 
 continue the extraction and removal of ores, and praj'ed for 
 damages, an injunction and other relief Upon this com- 
 plaint, which was filed June 1, 187i, the district judge ordered 
 the application for an injunction to be heard on June 12, 
 1874, and in the meanwhile issued a restraining order to " re- 
 main in full force and effect until the 12th day of June A. D. 
 1874, at 10 o'clock, a. m., of tiiat day, and until further order 
 herein." 
 
 The defendant filed its answer on June 10th, denying fully 
 all tlie material allegations of the complaint. Several stip- 
 ulations were afterward made continuing the time for hear- 
 ing the application for an injunction, but it seems that ap- 
 plication never came up. On July 7tii, defendant moved to 
 dissolve the restraining order, and on July 10th, that order 
 
 * Lady Bryan Co. v. Lady Bryan Co., 7 M. R. 478. 
 
Magnet M, Co. v. Page and Panaca M. Co. 541 
 
 was modified "so as to allow the defendant to continne tlio 
 working of the ground in controversy, and described in the 
 foregoing order, and to raise the ore to tlie surface or dump, 
 and then deposit the same upon the dump, but not to remove 
 tlie ore from the dump or from the vicinity of tlie shaft, in- 
 cline or dump of defendant's works." On July 16th, an order 
 Was entered denying the motion to dissolve the restraining 
 order, and continuing that order, as modified, in force pend- 
 ing tlie action. 
 From these orders defendant appealed. 
 
 . A. B. Hunt and Heney Kives, for appellant. 
 
 Gaebek, Thoenton & Kelley, for respondent. 
 
 By the Court, Belknap, J. 
 
 Upon the filing of the complaint in this case an applica- 
 tion was made for an injunction restraining the defendant 
 from, extracting or removing ore from certain described min- 
 ing ground of which the plaintiff claims to be possessed in 
 fee. An order was made fixing the time for the hearing of 
 the application for the injunction, and in the mean time the 
 defendant was restrained from the commission of the acts com- 
 plained of. 
 
 The hearing of the application was continued several times 
 by stipulation, and, for some cause unexplained by the record, 
 was not^ heard upon the day finally set for hearing. The 
 merits were reached by motion to dissolve the restraining 
 order. It was then modified so as to restrain defendant from 
 removing ore from the premises in controversy. 
 
 The answer fully and fairly denies plaintiff's alleged title 
 and possession, and no testimony was offered upon either of 
 these points. The questions of title and possession, there- 
 fore, stand upon the pleadings. A complete denial by the 
 answer is taken as true, and, in the absence of testimony es- 
 tablishing the material allegations of the complaint, the in- 
 junction should be dissolved, unless good reasons appear for 
 continuing it. So in New York an injunction was retained 
 where it could work no injury, wliile to dissolve it uiiglit do 
 
542 Injunction'. 
 
 80, notwitlistanding a full denial of the equities of the bill: 
 Bank of Monroe v. SchermerJiorn, Clark's Ch. 303. And 
 where the statement of the defendant was extremely improb- 
 able: Moore v. Hylton, 1 Dev. Eq. 429. And where the 
 denial was grounded upon information and belief: Poor v. 
 Oarleton, 3 Sum. 70. 
 
 Bnt no reasons appear to make this an exceptive case. The 
 denials of the answer must be taken as true, and so taken 
 the plaintiff has no ground for equitable relief. 
 
 The order appealed from is reversed, and the injunction 
 
 dissolved. 
 
 Beversed. 
 
 Lawrence and Others' Appeal." 
 
 (78 Pennsylvania State, 335. Supreme Court, 1875.) 
 
 ' Acquiescence in location of railroad— Li>s8ee mining under roadbed. — 
 
 A railroad was constructed oyer certain lands without legal proceedinprs 
 to condemn it, but without objection from the owners. Afterward pro- 
 ceedings to assess damages were commenced, but compromised and re- 
 leased. After the road was built, but before the release, coal veins 
 undercropping the roadbed were let by the owner of the land. Held, 
 that the title of the railroad company was by the original occupation 
 without objection ; that the release did not operate as an original con- 
 veyance, but as a discharge of the damages for the entry and occupa- 
 tion; and that the lessee of the coal took bis lease subject to the right 
 of way, and the coal company were 'enjoined from mining under the 
 road. 
 
 Appeal from the Court of Common Pleas of Schuylkill 
 County. In Equity. Of January Term, 1874. 
 
 The bill in this case was filed May 9, 1872, by the Phila- 
 delphia and Reading jRailroad Company against Jacob S. 
 Lawrence and others, partners as Lawrence, Merkle & Co., 
 lessees, and divers other persons, owners of the land referred 
 to in the bill. 
 
 The bill set forth that the Mahanoy and Broad Mountain 
 Kailroad Company, chartered under the general railroad law 
 
 ' Grantee must take notice of visible easements: Oregon Co. v. Trullenger, 
 4 M. R. 247. 
 
Laweence's Appeal. 643 
 
 of February 19, 1849, completed their railroad in the year 
 1860, including an inclined plane known as the "Mahanoy 
 Plane," extending from t]ie top of Broad mountain 2,800 feet 
 down the slope of the mountain to its foot; the plane was 
 constructed at great expense, and was the main outlet to 
 market of the coal in Mahanoy valley, more tlian 1,000,000 
 tons of coal per year being carried over it to market; tliat it 
 was located on land of William Eohrer and others named in 
 the bill as owners, and that the land was partly underlaid by 
 certain veins of coal, one of which was the Mammoth vein, 
 whose outcrop crossed under the plane; that the company 
 acquired the right over the land for the plane under proceed- 
 ings commenced in the Court of Common Pleas of Schuylkill 
 county to December term, 1862, and release dated November 
 2, 1868; that under certain acts of assembly named in the 
 bill, the last of wliich was approved February 18, 1871, all the 
 rights of this and other companies theretofore consolidated, 
 became vested in the plaintiffs; that after the entry of the 
 plaintiffs on the land occupied by the plane, Lawrence, Mei'kle 
 & Company leased the Mammoth vein, includipg that part 
 underlying the plane, and erected the Lawrence colliery; that 
 said firm were mining coal in said vein lying under and 
 keeping up the plane, in places specified in the bill, and 
 slionld it be mined out, the plane would be thrown down, the 
 plaintiffs prevented from using it, and the region depending 
 upon it be deprived of an outlet for its coal; that they had 
 notified the firm to cease; they paid no attention to the notice, 
 but continued to mine coal, and threatened to open other 
 breads, mine coal from them, and to undermine, let down, 
 and destroy the plane. 
 
 The prayers were to restrain the firm from raining, etc., 
 any coal in the places mentioned in the bill, or interfering 
 witii the breasts or with any of the Mammoth vein coal, etc., 
 where their gangway would pass under the plane, and for gen- 
 eral relief. 
 
 Affidavits were filed and a special injunction was awarded. 
 
 Lawrence, Merkle & Co., answered, admitting many of the 
 averments, amongst others, that the Mahanoy and Broad Moun- 
 tain Company in 1860, as averred in the bill, completed the Ma- 
 hanoy plane, which was one of the main outlets for coal mined 
 
544 Injunction. 
 
 in the Mahanoy valley, and that it was over lands of William 
 Kohrer and others, as stated in the bill. They denied that 
 the company acquired the right of way under proceedings in 
 the Court of Common Pleas of Schuylkill county, or that they 
 acquired any title to the right of way against the possession 
 of the respondents by virtue of the release of November 2, 
 1868, and averred that such possession and its extent were 
 known to the railroad company; that on the 1st of January, 
 1868, the owners of the land over which the plane was located, 
 leased to Lawrence, Merkle & Co., for fifteen years, the ex- 
 clusive right to dig, etc., coal, and the exclusive possession of 
 a body of land, which includes the part on which the Mahanoy 
 plane is located, and they immediately took possession of the 
 leased premises, commenced to open the Mammoth vein, erect 
 improvements, etc., of which the Malianoy and Broad Moun- 
 tain Company had notice before they took the release. The 
 respondents admitted that they took possession of the demised 
 premises after the occupation of part of tliem by the Ma- 
 hanoy and Broad Mountain Company for their plane, but 
 denied that their occupation was unlawful, and they averred 
 that there was no reservation in the demise to the respond- 
 ents of any part of the land within the boundaries of the de- 
 mised premises; they admitted that they were raining and 
 driving a gangway toward the plane, with the intention of 
 taking away ail the coal except that immediately under the 
 roadway of the plane, and claiming the riglit to mine, etc., all 
 the coal in the Mammoth vein. 
 
 A replication was filed and an examiner appointed, who 
 took testimony, but no master was appointed. Proceedings 
 were commenced on the 17th of November, 1862, to have 
 damages assessed for the owners of tlie land by reason of its 
 occupancy for the railroad; the viewers appointed reported, 
 February 3, 1863, that they liad assessed the damages at $570, 
 but inasmuch as there was dispute about the ownership of tlie 
 land, they were unable to report to whom the damages were 
 to be paid, but suggested that they be paid into court to await 
 the determination of the question of the title. 
 
 On the 2d of March, 1863, John Gilbert and others of the 
 owners appealed. On the 18th of January, 1869, it appear- 
 ing to the court that the title to the land had been finally 
 
Lawrence's Appeal. 545 
 
 settled in favor of Gilbert and others, and that none of the 
 other parties, defe;idants, had any claim to the land or the 
 award of $570, the court ordered that the proceedings to assess 
 damages should be discontinued, and satisfaction entered on 
 tlie award of the viewers, upon said parties filing an agree- 
 ment to that effect; the agreement was filed and satisfaction 
 entered the same day. 
 
 Tiie release referred to in the bill recited that the Mahanoy 
 aiid Broad Mountain Kailroad Co. had fixed, etc., the route 
 for their main line, the Mahanoy city branch, etc., to the col- 
 liery of Lawrence, Merkle & Co., through and upon lands of 
 John Gilbert and others, naming them, and occupied or in- 
 tended to occupy for the main line, land thirty feet wide on 
 each side of the center line of their road, etc., and in consid- 
 eration of the advantage to be derived to them from the loca- 
 tion and construction of the road, Gilbert and others, the 
 owners of the land, released the railroad company from ail 
 claims, damages, etc., by reason of tlieir entering upon and 
 taking the land and the location and construction of their 
 railroad, and covenanted that no non-user'of the land appro- 
 priated and no occupation by the releasors by residence or 
 otherwise for any period of time should affect the riglit of 
 the railroad company to the entire and exclusive possession 
 of the same. > 
 
 The other tvestimony related principally to tlie questions 
 of the mining of respondents with reference to the railroad, 
 and the danger to it by continuing the mining. 
 
 The court (Walkek, A. J.) on the 6th of January, 1874, 
 decreed that the defendants be perpetually restrained from 
 mining, taking out, or in any manner interfering with the 
 coal now remaining in the top breasts laid down in a draft, 
 etc., being under the plane, beginning, etc. 
 
 The defendants appealed to the Supreme Court and assigned 
 the decree for error. 
 
 L. Bartholomew and E. 0. Pakrt, (with whom was C. 
 N. Bdmm) for appellants. 
 
 J. Ellis and J. E. Gowen, for appellees. 
 VOL. VII.— 35 
 
546 Injunction. 
 
 Pjse Cueiam. 
 
 We find no error in this decree. The railroad company 
 had actually appropriated the land, and built and used its 
 railway long before any title by lease of the coal mines had 
 vested in the defendants. This is admitted in the answer. 
 The owner of the land made no objection to this appropriation, 
 but after a proceeding to assess the damages had been prose- 
 cuted, finally compromised and released. The title of the rail- 
 road company came not through this proceeding, but by its 
 original entry and appropriation without objection. The 
 release operated not by way of an original conveyance, but by 
 way of a discharge for the damages incurred by the entry 
 and construction of the railway. It is clear, therefore, that 
 wiien the defendants obtained their lease they took it subject 
 to the previous easement and right of way of the railroad 
 company over tlie surface. The railroad was then in lawful 
 existence and use. The owners made no defense to the right 
 of the railroad company to appropriate tlie land, and their 
 tenants can not now set up a defense which they waived, if 
 they had any. The act of 1849 does not compel a railroad 
 company to remove its track, though it gives tiie authority. 
 A most necessary provision for the security of tlie company 
 and of the public. To hold the law to be mandatory would 
 result in its being compelled to shift the location, involving 
 perhaps an extensive change of gradients, as often as the 
 mine owner hoiieycombs the earth beneath the railway. 
 
 Decree a-ff/rmed with costs and appeal dismissed. 
 
 Leitham et XL. V. Cdsick et al. 
 
 (1 Utah, 242. Supreme Court, 1875.) 
 
 ' Ortter witliont notice vacated. An injunction granted at chambers with- 
 out notice may be dissolved without notice. 
 
 ^ Irreparable injnry, how pleaded. Where, upon an application for an in- 
 junction to restrain the defendants from working certain mining ground, 
 
 ■ See GoUen Gate Co. v. Superior Court, 2 West C. R. 736. 
 ' Thorn v. Sweeney, 7 M. R. 564. 
 
Leitham v. Cusick. 547 
 
 and from selling any ores therefrom, the plaintiffs alleged that the injnry 
 was irreparable, from the fact that it was impossible for Ihem to know 
 the amount and value of the ores taken from the mine by defendant: 
 Held, that the simple statement of the complaint to that effect is not 
 sufficient, but the facts should be stated from which the court could 
 learn that the injury was irreparable. 
 
 Restraining: order governed by tlie complaint. A restraining order that 
 goes further than the prayer of the complaint is improper, and should be 
 set aside. 
 
 ' Practice on motion to be restored to possession. When the defendants 
 have been deprived of the possession of mining ground by an officer 
 acting under a restraining order, which was improperly issued, the judge 
 who granted the same can not, upon application of the defendants with- 
 out notice, restore them to the possession. 
 
 Appeal from tlie First District Court. 
 
 The facts appear in the opinion. 
 
 O. F. Steickland, for appellants, Leitham et al. 
 
 Marshall & Royle, for respondents. 
 
 BoKEiiA.N, J., delivered the opinion of the court. 
 
 The appellants, without any notice to th6 respondents, ap- 
 plied to and obtained from the judge at chambers, a tem- 
 porary injunction, restraining the respondents from working 
 or taking out ores from a certain mining property called the 
 Undine lode, and from removing or selling the ore. 
 
 After service of the writ, the respondents applied to the judge 
 at chambers, without notice to the appellants, and obtained an 
 order revoking the former order, and requiring the United 
 States marshal to restore to the respondents the possession of 
 the Alexander lode from which they had been ejected under 
 the restraining order. 
 
 It is from this last order revoking the former order that 
 this appeal is brought to this court. 
 
 The respondents in their motion asked that the restraining 
 order be revoked, upon the grounds that the complaint did 
 not state facts suflScient to entitle the applicants to the relief 
 sought, and that the order was improvidently issued. 
 
 ^Brennanv. Gaston, 1 M. K. 426; Actus curice neminem fframhU ; Den- 
 ver V. CapelK, 3 Colo. 236; Widner v. Walsh, Id. 418. Compare Van- 
 xandt V. Argentine Co., 7 M. R. 634. 
 
548 Injunctiox. 
 
 Tlie injury complained of as irreparable by tlie appellants 
 consists in the impossibility of ascertaining the amount and 
 valne of the ores taken away from said mine by the respond- 
 ents, unless they be restrained, fhe court can not see that 
 there is any great and irreparable damage, for the simple 
 statement of the complaint to that effect is not sufficient. 
 The facts should be stated from wliich the court could learn 
 that the taking and selling the ores would be such injury. It 
 is not alleged that the removal or sales were clandestine, or 
 that the respondents are insolvent or otherwise unable to re- 
 spond iu damages, or any other facts going to show the 
 nature of the damages. 
 
 Tlie writ which was issued upon the restraining order went 
 further than the prayer of the complaint, and restrained the 
 respondents from ever going upon the premises. This would 
 prevent them from removing their own private property. 
 The appellants did not ask that the respondents be restrained 
 from going upon the ground, and the writ was improper in 
 that respect. 
 
 The dissolving of an injunction, like the granting, is left to 
 a considerable extent to the discretion of the judge, and unless 
 he abuse that discretion, his action is necessarily held good: 
 High on Injunction, Sec. 899. We can not say, therefore, 
 that the court erred in revoking the restraining order unless 
 his revocation without notice was an error. 
 
 The Practice Acf, in Sec. 326, provides that orders made 
 out of court, without notice, may be vacated by the judge 
 without notice. This is a very broad provision, and there 
 seems to be no good reason why it should not apply to the 
 case now before us. 
 
 That part of the order complained of by the appellants 
 which required the marslial to reinstate the respondents, 
 was, however, beyond tlie reach of the judge. When the 
 former order was revoked, his authority in the matter ceased, 
 by reason of no notice to the opposite party. 
 
 Upon the whole case, tlierefore, we conclude that the revo- 
 cation was not improper, and to that extent the action of the 
 judge below is affirmed; but as to reinstating the respondents, 
 the order was not proper, and to that extent it is reversed. 
 
 Lowe, 0. J., and Emeeson, J., concur. 
 
 Heversed. 
 
Sierra Nevada Mining Co. v. Sears. 549 
 
 The Sierra Nevada Silver Mining Company v. 
 
 Sears. 
 
 (10 Nevada, 346. Supreme Court, 1875.) 
 
 ' Stolen stock— Enjoining' sale. A mining company having found a por- 
 tionof its ground covered by the claim of another company whose 
 stock was held only at a nominal value, bought up the entire amount of 
 such stock; afterward such stock was lost, or as averred by the com- 
 plaint, stolen, and came into the hands of parties who proceeded to con- 
 trol the corporation by representing such stock, and to act adversely to the 
 company which had bought up the stock. Defendants filed no answer. 
 The court below en,joined defendants from in any manner disposing of 
 said stock: Held, that the complaint presented a prima facie case for 
 relief in the discretion of the court, the exevcise of which discretion in 
 the court below should not be disturbed. Bbatty, J., dissenting. 
 
 Insolvency. Where irreparable injui^ or inadequate relief at law is 
 alleged, insolvency of the defendant need not be superadded. 
 
 TerUloation — Information and belief. A verification which conforms to 
 section 113 of the Practice Act of Nevada is sufficient, and that implies 
 that averments may be made upon information and belief. 
 
 Diligence in notifying purchaser of loss of stock. The question 
 whether a party who has lost stock by theft, as alleged, has used due 
 diligence to prevent loss to third parties, can not arise before defendant 
 shows himself to be an innocent purchaser for value. 
 
 The discretion of the court below in allowing injunction, upon a prima 
 facie case not denied by answer, will not be interfered with. 
 
 Appeal from the District Court of the First Judicial Dis- 
 trict, Storey County. 
 
 This action was commenced by the Sierra Tfevada Mining 
 Company, a California corporation, against the defendant, "W. 
 H. Sears, and the Mien Company, a Nevada corporation. The 
 complaint alleges that about the 9th day of January, A. D. 
 1871, while the plaintiff was in the possession of its mining 
 ground, working and developing the same, divers parties, 
 among whom was the defendant, the Allen Company, laid 
 claim to a portion thereof, and caused the plaintiff such annoy- 
 ance, that, to quiet the asserted claim of defendant and to buy 
 its peace, without acknowledgment of any right or title in said 
 defendant to any portion of plaintiff's mining ground, or any 
 ground, it became advisable for plaintiff to buy, and there- 
 
 ' Coleman v. Columbia Co., 3 M. R. 483. 
 
550 Injunction. 
 
 « 
 
 upon plaintiff did bny, and became the owner of the entire 
 capital stock of defendant aforesaid, and from thence hitherto 
 plaintiff hath continued to be, and now is the owner thereof; 
 that the capital stock of the Allen Company then consisted, 
 and now consists, of nine hundred and twenty-five thousand 
 dollars, divided into eighteen hundred and fifty shares, of the 
 par value of five hundred dollars each; that fourteen hundred 
 shares thereof were represented by the stock certificates of de- 
 fendant aforesaid, issued by it from its books, and bearing the 
 number one hundred and seventy-four, and in the name of T. 
 F. Smith, trustee; that four hundred and seventeen shares 
 thereof were represented by the stock certificate of defendant 
 aforesaid, issued by it from its books, and bearing the number 
 one hundred and seventy-six, and in the name of T. F. Smitli, 
 trustee; that said pieces of stock were, by said Smitli, for a 
 valuable consideration, duly indorsed, transferred and deliv- 
 ered unto his lawful assignee, and were, from said assignee by 
 this plaintiff, for a good, suflicient and valuable consideration, 
 duly purchased and received; that plaintiff therefrom had the 
 same in its possession, holding them, and each of them, as the 
 owner thereof, until the same were lost; or, as plaintiff is in- 
 formed and believes, were stolen from it; that plaintiff never 
 voluntarily or knowingly parted with the possession or owner- 
 ship of said stock or any thereof; that, though diligently in- 
 quiring for the whereabouts of said stock, plaintiff could learn 
 nothing thereabout until within the week last past it was in- 
 formed, and upon such information charges the truth to be, 
 that W. H. Sears, -defendant herein, presented the above de- 
 scribed stock in said certificates numbered, respectively, one 
 hundred and seventy-four and number one hundred and 
 seventy-six, claiming to be the owner thereof, unto his co- 
 defendant, the Allen Company, and from it demanded the 
 issuance of new certificates in lien thereof, and that said Alien 
 Company, accepting such demand as legal and just, did, in 
 fraud of plaintiff's rights, issue unto said Sears two certificates 
 of its stock, one numbered one, for fourteen hundred shares, 
 and one numbered two, for four hundred and seventeen 
 shares, both issued to W. 11. Sears, trustee, and to him de- 
 livered and by him now held, while the old certificates, num- 
 bers one hundred and seventy-fonr and one hundred and 
 seventy-six, were taken up by said Allen Company, and are 
 
Sierra Nevada Mining Co. v. Sears. 551 
 
 now held by it; that on the 19th instant plaintiff made demand 
 in writing upon said Sears to deliver to it said stock so issued 
 as aforesaid, to T. F. Smith, trustee, and in lien thereof to 
 surrender to plaintiff the stock issued, as aforesaid, to said 
 Sears, trustee, but he hath neglected and refused, and still 
 neglects and refuses to comply witli such demand, or to de- 
 liver said stock or any part thereof to plaintiff; that a like 
 demand was made upon the Allen Company, and that it also 
 refused to comply therewith or with any part thereof; that 
 plaintiff is informed and believes, and so charges the truth to 
 be, that defendant Sears, claiming to be the owner of the stock, 
 is attempting to take control of the affairs of the defendant, 
 the Allen Company, and threatens and intends to move its 
 books, papers and effects to the cit}' of San Francisco in the 
 State of California, and beyond the jurisdiction of this court, 
 and further threatens to disincorporate said defendant, the 
 Allen Company, as a corporation of Nevada, and reincorpo- 
 rate the same in the State of California; all of which is in 
 violation of plaintiff's rights respecting the subject of this 
 action, and tending to render the judgment asked herein in- 
 effectual ; that the value of the stock aforesaid is merely 
 nominal, and that it is impossible to measure plaintiff's in- 
 juries, by reason of the wrongful acts and doings of defendant, 
 in damages, for that its title is thereby clouded, its property 
 depressed in. value in a manner which can not be estimated in 
 dollars and cents, and that it will be irreparably injured if 
 such proceedings be continued. Wherefore, etc., etc. The 
 defendant, the Allen Company, made default. 
 
 The otlier facts are sufficiently stated in the opinion. 
 
 DeLong & Belknap, for appellant. 
 
 Whitman & Wood, for respondent. 
 
 By the Court, Hawlet, 0. J. 
 
 Upon filing its complaint, plaintiff obtained an order re- ^ 
 quiring defendants to appear on a certain day therein 
 named, and show cause, if any they could, why an injunction 
 sliould not issue, and in the meantime defendant Sears was 
 
552 Injunction. 
 
 restrained and enjoined from selling, transferring or in any 
 manner disposing of " certain certificates or shares of stock, 
 issued by the Allen Company, to any party, person or corpo- 
 ration than plaintiff." On the return day defendant Sears 
 appeared specially by his attorneys, and moved " to quash and 
 dismiss the order to show cause." The court overruled this 
 motion and ordered that the restraining order be continued- 
 until the further order of this court. 
 
 This appeal is taken by defendant Sears from the order of 
 tlie court, "refusing to dissolve the injunction heretofore 
 granted in this action. 
 
 Appellant claims that the injunction ought to have' been 
 dissolved, because the complaint fails to show that plaintiff 
 has not a plain, speedy and adequate remedy at law, and argues 
 that it had such a remedy by the ordinary action of replevin. 
 From the allegations of the complaint — which, in this case as 
 presented, must be taken as trne — it will be observed, as is 
 therein stated, that it is impossible to measure plaintiff's inju- 
 ries in damages. It is alleged that plaintiff made the pur- 
 chase of the certificates of stock, to buy its peace, to save 
 annoyance, to avoid litigation and to prevent a cloud upon its 
 title; that the value of said shares of stock was merely nom- 
 inal, and could not be estimated like the shares pf stock in 
 other corporations having a market value. 
 
 Under the provisions of section 202 of the Civil Practice 
 Act, 1 Comp. L. 1263, the judgment in actions to recover 
 the possession of personal property must be in the alternative, 
 and if the property can not be delivered, the judgment is sat- 
 isfied by the payment of damages. In actions of this charac- 
 ter, where the remedy at law would be inadequate, and the 
 injury to plaintiff be irreparable, equity will interfere by 
 injunction and restrain the party wrongfully in possession of 
 the property from disposing of it: 2 Wait's Fr. 31, 32, and 
 the authorities there cited. It would, for reasons already 
 stated, be unnecessary for plaintiff to allege the insolvency of 
 the defendant, and the complaint is not defective in this 
 respect. 
 
 The verification to the complaint is in the form required 
 by section 113 of the Practice Act, 1 Comp. L. 1174, which 
 implies that the averments of the complaint may be made 
 upon information and belief. 
 
SiEERA Nevada Mining Co. v. Seaes, 553 
 
 It is argued that the plaintiff so carelessly and negligentljv 
 left the certificates of stock standing in the name of a trnstee 
 regularly indorsed, as to clothe any person, from whom Sears 
 may have purchased, with the indicia of ownership thereof. 
 Counsel upon this, as well as other points, assume that Sears 
 was a honafide purchaser for value; a fact that plaintiff was 
 not required to, and did not allege, and which this court, un- 
 der the averments of the complaint, is not authorized to pre- 
 sume. There is an allegation in the complaint that the certif- 
 icates were in plaintiff's possession ," until the same were 
 lost, or, as plaintiff is informed and believes, were stolen from 
 it." The question whether or not due diligence has been 
 used by plaintiff to recover the certificates of stock, or put 
 third parties on notice of its loss, is one that could not be 
 raised by appellant unless it was, at least, shown that he was 
 an innocent purchaser in good faith. It is, therefore, unnec- 
 essary to discuss this or other objections urged by appellant. 
 
 In our opinion the complaint states a frima facie case, and 
 as there was no answer to the complaint, nor any showing 
 made upon the merits of the case, and inasmuch as the grant- 
 ing or refusing an injunction ^ew.c?e?i#e lite rests very much 
 in the sound discretion of the court, we do not think its order 
 ought to be disturbed. This disposes of the appeal, and ren- 
 ders it unnecessary to notice the preliminary objections, on 
 questions of practice, urged by respondent. 
 
 The order appealed from is affirmed. 
 
 Bbattt, J.j dissenting. 
 
 I dissent upon the ground that the complaint does not 
 make a case for the extraordinary relief sought. The means 
 resorted to by plaintiff for the purpose of quieting its title 
 deserve anything but favor in a court of equity. There are 
 certain classes of transactions which, because they are uni- 
 versally attended by opportunities and temptations to commit 
 fraud, are presumed, from motives of public utility,. to be 
 always fraudulent. It appears to me that the complaint dis- 
 closes a transaction of that kind. A corporation finds that 
 another corporation is asserting a claim to a portion of the 
 mining ground owned and possessed by it, and is so "greatly 
 
554 Injunction. 
 
 annoyed " thereby that it determines to buy its peace. In- 
 stead of pursuing the plain, simple, direct, honest and effective 
 method of acco0ipii8bing; that object by purchasing its ad- 
 versary's quit claim, it goes to work to secure the control of 
 the antagonist corporation by buying up its stocL The 
 modus operandi is a familiar spectacle. By means of its 
 agents it first gets control of a majority of the stock, and next 
 proceeds to " freeze out " the mmority stockholders, which, as 
 they are practical ty remediless, is an easy operation. It is just 
 possible that a transaction of this kind might be consummated 
 without defrauding the minority; and so is it possible that one 
 who purcliases from, himself as the agent of the vendor may 
 pay a due regard to the interests of his principal, or a ward 
 make a voluntary donation to his guardian, without being 
 unduly influenced. But such instances are so extremely rare, 
 and so little to be expected, that every presumption is against 
 their hona fides. Tlie same presumption of fraud, I think, 
 should attach to the operation attempted by theplaintiii here, 
 and to the consummation of which he invokes the aid of the 
 extraordinary powers of a court of equity. The case made by 
 the complaint is simply this: If the court does not. decree 
 the return of the stock of the Allen Company in controversy, 
 the plaintiff will lose the control of the Allen Company, which 
 may then assert its claim to plaintiff's ground and cloud its 
 title. In view of the extremely liberal remedy afforded by 
 our statute for wrongs of this nature, such a result would not 
 appear to involve irreparable damage to the plaintiff. A re- 
 covery of the value of the stock it claims to have lost would 
 restore it to its original position, and it might then proceed 
 by regular and legitimate means to quiet its title or buj' its 
 peace. But aside from these considerations, the reason which 
 is conclusive to my mind for denying the injunction and all 
 the equitable relief prayed for. is, that the courts, so far from 
 going out of their usual course to aid a transaction of this 
 kindj should sternly discountenance a proceeding which al- 
 ways and inevitably involves temptations and opportunities 
 of fraud, and should therefore be presutiied to have been re- 
 sorted to for fraudulent purposes, especially when there were 
 more direct, legitimate and effective means of honestly acr 
 complishing the avowed object. 
 
 Afflrmed. 
 
Telegraph M. Co. v. Centkal Smelting Co. 655 
 
 The Old Telegraph Mining Company v. The 
 Central Smelting Company. 
 
 (1 Utah, 331. Supreme Court, 1876.) 
 
 Proceedings to settle title reijnired in afd of injunction. To entitle a 
 party to injunctive relief, restraining defendants in possession from 
 operating a mining claim, the plaintiff's title must be shown to be clear 
 and undisputed, or it must appear that steps have Deen taken to estab- 
 lish the title at law, un'ess satisfactory reasons be shown for not dqing so. 
 
 Idem— The reason for rule requiring an issue at law. It would be gross 
 injustice to allow a temporary injunction when upon the face of the 
 papers it appears that a perpetual injunction could never be granted. 
 As no perpetual injunction. could be sustained on a bill to restrain the 
 workmg of a mining claim without establishing the title at law, no 
 temporary injunction should be allowed to restrain such working in the 
 absence of any suit to try title, or of excuse for not bringing one. 
 
 Appeal from the Third District Court. 
 
 Action to enioin the defendant from threatened trespass 
 upon a certain mining claim. 
 
 No other than injunctive relief was asked for in the com- 
 plaint. 
 
 The other facts appear in the opinion of the court. 
 
 EoBEETSON & MoBeide, for appellant. 
 
 Bennett & Stjtheeland, for respondent. 
 
 BoEEMAN, J., delivered the opinion of the court. 
 
 Injunction relief is all that is prayed in this action. Pend- 
 ing the settlement of the question of perpetual injunction, a 
 temporary one was granted. The defendants filed an answer 
 and moved the court below to dissolve the temporary injunc- 
 tion, which motion was by the court overruled, and thereupon 
 the defendants appeal to this court. 
 
 • In order to entitle the plaintiff to the relief asked, where that 
 relief is injunctive only, the title of the plainciff to the prop- 
 erty said to be trespassed upon, must be clearly shown and 
 
556 Injunction". 
 
 be undisputed, of steps taken to establish the title by action 
 at law, or valid and satisfactory reasons be shown for not 
 doing so. 
 
 In the case at bar, the title is doubtful and disputed, and 
 defendants are in possession, as appears from the bill itself. 
 It is not claimed that steps had been, or were then being 
 taken, to establisli the title, and no reason appears why this 
 was not done. The gist of the whole matter seems to be that 
 the plaintiffs desire the defendants enjoined from trespassing 
 upon ground the title to which is disputed by defendants, 
 and defendants are in possession alike with the plaintiffs. 
 It is clear that no perpetual injunction could be granted in 
 such a case, for by so doing the court of equity would become 
 an euijine of injustice instead of a shield and protection to 
 legal rights. Where upon the face of the papers it appears 
 that no perpetual injunction could ever be granted in the 
 action, it would be the grossest wrong to allow a temporary 
 one. If such were allowable, a temporary injunction might 
 easily be sought and used to harass and annoy defendants, 
 and the trial of the ultimate rights of the parties as to the 
 title be indefinitely postponed or delayed. The temporary 
 injunction would work as an action of ejectment, and the 
 defendants be deprived of their rights in a manner unjust and 
 without due process of law, and without trial by jury. A 
 court of equity can not be used for such a purpose, and no 
 amount of affidavits can help the claim for injunctive relief. 
 A court of equity will not presume upon such affidavits to try 
 the title, and to make a final disposition of the case the title 
 has to be decided, and it is not the, province of a court of 
 equity to do that. 
 
 We therefore are of the opinion that the district' court 
 erred in granting the temporary injunction, and its action is 
 reversed with costs, and the cause remanded with instructions 
 to the district court to dissolve the injunction. 
 
 Reversed. 
 
 ScHAEFFEE, 0. J., concurs. 
 
 Emeeson, J., dissents from the doctrine announced by a 
 majority of the court. 
 
Effoed v. South Pacific Coast Co. 557 
 
 Effoed et al. v. The South Pacific Coast Eail- 
 ROAD Company. 
 
 (52 California, 277. Supreme Court, 1877.) 
 
 Discretion. It is a matter largely in the discretion of the court whether, on 
 the coming in of an answer, a preliminary injunction previously granted 
 shall be dis3olve4 or modified; and, except in a case of palpable error or 
 abuse of discretion, the action of the court below will not be disturbed 
 on appeal. 
 
 Appeal from the District Court, Third Judicial District, 
 County of Alameda. ' ' 
 
 The plaintiffs alleged in their complaint that they were the 
 owners, as lessees for eight years from tlie first day of Febru- 
 ary, 1870, of a tract of land in Centre ville, Alameda county, 
 containing one hundred and sixty acres, being a portion of the 
 tract of land and marsh connected therewith, used by the 
 plaintiffs for tlie manufacture of salt, bounded on tlie north 
 by a creek, wall and ditch, and on the south by a wall and 
 ditch, and on the east by a creek, wall, ditch and upland; that 
 they were, and had been since the lease was given, in the 
 exclusive and peaceable possession of the land, and had on it 
 extensive beds for the manufacture of salt from sea water by 
 evaporation. The complaint was filed May 17, 1876. The 
 complaint further alleged that the defendant was a corpora- 
 tion, organized for building a railroad along the coast where 
 the land lay, and was about to grade the land for the railroad 
 by building an embankment across the salt beds, and that 
 they would thus destroy the plaintiff's salt works by separat- 
 ing the bed into two parts, and preventing the flow of sea 
 water from one to the other, and that the defendant also 
 threatened to dig up and destroy the salt bed and works, and 
 permanently appropriate the land. An injunction was asked. 
 On filing the complaint a preliminary injunction was granted 
 On the Sith of May, 1876, the defendant answered, denying, 
 on information and belief, that the plaintiffs were in possession 
 Of or owned the premises as lessees for eight years, and deny- 
 
658 Injunction. 
 
 ing on information and belief that the plaintiffs had salt beds on 
 the land, or were manufacturing salt there, and also denying, 
 on information and belief, that it was necessary in the man- 
 ufacture of salt to have several beds into whicli the sea water 
 flowed in succession. The answer then denied that the 
 defendant was about to enter upon or threatened to enter on 
 any premises or land of the plaintiffs, or that it was about to 
 destroy plaintiffs'" business. The answer then set up that the 
 premises were the property of the Green Point Dairy and 
 Transportation Company, and that said company sold to A. 
 E. Davis in March, 1876, and that the defendant had entered 
 by permission of said Davis, who bought without notice of 
 the plaintiffs' alleged lease. There was also a denial that the 
 lease mentioned in the complaint was a lease of the premises 
 described in the complaint. 
 
 The defendant moved to dissolve the injunction on the an- 
 swer, and on affidavits which were filed. The plaintiffs filed 
 counter-aflBdavits. The court made an order dissolving the 
 injunction in so far as it restrained the defendant from grading 
 its roadbed, and from making the necessary embankments or 
 cuts for the purpose of its road, upon condition, however, that 
 the defendant in constructing its railroad, provide such cul- 
 verts as were necessary for a free use of the plaintiffs' salt beds, 
 ditches, and the water flowing therein, and other property of 
 the plaintiffs connected therewith. The plaintiffs appealed 
 from the order. 
 
 Bishop & Fifield, for the appellants. 
 
 We claim that the plaintiffs were owners of the leasehold 
 interest in the land, and being in possession under their 
 lease, the defendant had no right to take the land for the use 
 of its railroad except by consent of the plaintiffs, or by the 
 judgment of a competent court condemning the land to pub- 
 lic use, and the payment of compensation: San Mateo Wa- 
 ter Works v. Sharpstein, 50 Gal. 284; Sanborn y. Belden, 51 
 Cal. 266. 
 
 Stewart & Geeathottse, for the respondent. 
 
 It is incumbent on the appellants to show that there has 
 been an abuse of discretion on the part of the court in modi- 
 
Kahn v. Telegraph Mining Co. 659 
 
 fyiiig an injunction: McOarrell v. Murphy, 1 Hilt. 132; 
 Freeman on Oo-tenancy, 253. 
 
 Bt the Court. 
 
 In the view we take of this case, we deem it unnecessary to 
 1 decide whether the order appealed from dissolves or only mod- 
 ifies the preliminary injunction; and if the latter, whether it 
 is an appealable order. It is a matter largely iu the discre- 
 tion of the district court, whether, on the coming in of the 
 answer, a preliminary injunction previously granted should 
 be continued in force, dissolved or modified; and, except in 
 cases of palpable error or an abuse of discretion, the action 
 of that court in such cases will not be disturbed on appeal: 
 DeGodey v. Godey, 39 Gal. 167; McCreery v. Brown, 42 Oal. 
 462; Rogers v. Tennant, 45 Oal. 186; Patterson v. Super- 
 visors, 50 Oal. 345. Tested by this rale, we see nothing in 
 tlie facts disclosed by the record to justify us in disturbing the 
 order appealed from. 
 
 Order affirmed. Bemittitur forthwith. 
 
 Samuel Kahn v. The Old Telegraph Mining Co. 
 
 ET AL. 
 
 (2 Utah, 13. Supreme Court, 1877.) 
 
 Allegations and proofs on motion for iqjunctlon. The rule that the 
 proofs must correspond with the allegations applies to the trial of a 
 cause on its merits, and does not apply to proceedfngs on a. motion for 
 an injunction, where the answer is regarded simply as an affidavit. 
 
 Injunction agralnst tenants in common. Where the defendant ia in 
 the possession of a mining claim, and is the undisputed owner of two 
 thirds thereof, and claims the entire property under a bona fide claim of 
 title/ and is pecuniarily responsible for all damages that plaintiff, his co- 
 owner, may sustain by reason of the working of the mine, an injunction 
 will not be granted. 
 
 ' Bight of co-tenant to injunction. As a general rule, the owner of a minor 
 interest in a mining' claim, out of possession, is bot entitled to an in- 
 junction against the owner of the major part thereof, who is in posses- 
 sion and working the whole, whare it does not appear that the party so in 
 possession is unable to respond in damages to the party out of possession. 
 
 ' Lorenz v. Jacobs, 2 West C. R. 722. 
 
560 Injunction. 
 
 ' Injunction for acts already done. An injunction is a preventive remedy 
 only and can not be invoked to restrain a party from doing an act 
 which he has already done. In such a case a party must be remitted to 
 his remedy at law. 
 
 Appeal from the Third Judicial District Court. 
 The facts appear in the opinion of the court. 
 EoBEETsoN & MoBeidb and Hoffman, for appellant. 
 
 " Each party must allege any fact which he is required to 
 prove, and is precluded from proving any fact not alleged," is 
 a fundamental rule, as old as the history 6f pleading, and is no- 
 where more strictly enforced than under the code: Green v. 
 Palmer, ,15 Cal. 411. 
 
 The court will see that the fact that the defendants own the 
 " No You Don't " mine, though admitted, could not help their 
 case. There is no conflict between the two claims which could 
 he made the subject of a protest. Such a protest, if made, 
 would be disregarded. 
 
 The precise question has arisen and been decided by the 
 commissioner of the general land office. The conflict, if any, 
 in this case is " under ground." Copp's Mining Decisions, pp. 
 27, 28, 29. 
 
 The surface ground of the " Montreal " is not pretended to 
 be claimed by the " No Tou Doii't," and yet its pretended 
 owners drive us from premises they do not have a pretense or 
 shadow of claim to; take possession of not only the ore, but 
 all our works and improvements; appropriate them to their 
 use in despoiling our mine, as we say — in working theirs, as 
 they say — and the court tells us they shall not be enjoined. 
 
 The Mining Act provides that a party may follow his lode 
 in its dip to any depth, though it may enter the land adjoin- 
 ing, but it specially preserves the right of adjoining occupants 
 to anything except the lode- Section 3, last paragraph, 
 
 Kecent mining decisions show that the department will 
 patent a lode which lies unrlerneath a town site, and the pat- 
 entee may work his lode, but he can not enter tiie houses of 
 town lot proprietors, or any otlier improvements situated in or 
 on the land, and is as much a trespasser in doing so as the 
 most perfect stranger; sucli are the decisions. 
 ' Mammoth Co'a App., 7 M. R. 460. 
 
Kahn v. Telegraph Mining Co. 661 
 
 The burdeA of proof is on the defendants. They allege tlie 
 identity, and nlnst prove it or fail in their defense. The most 
 tliat can be said for the defendants is that they leave the ques- 
 tion an open and doubtful one. 
 
 The rule in such cases is, that tlie party most liable to be 
 injured should have the injunction to protect his rights pend- 
 ing the litigation: 18 Gal. 206; 23 Cal. 85. 
 
 The first care of a court of equity is to preserve property 
 intact pending litigation as to the title: 13 Cal. 588; 15 Cal. 
 107; 34 Qal. 270; 14 Cal. 379-460. 
 
 The statute is mandatory: Sec. 112 et seg. 
 
 Bennett & Haekness, for respondents. 
 
 * 
 
 On motion for, or to dissolve interlocutory injunction, an- 
 swer regarded as affidavit: High, Sec. 989, 981; lalklnhurg 
 V. Lucy, 35 Cal. 52; Delger v. Johnson, 44 Cal. 182. 
 
 On question of title, affidavit not admissible to contradict 
 answer: High, 992. . 
 
 Granting or refusing an injunctional order rests largely in 
 the discretion of the court: 17 Cal. 102; 39 Cal. 157; 50 
 Cal. 344.. 
 
 Schaeffee, Chief Justice, delivered the opinion of the court. 
 
 This is an appeal from an order of the third district court 
 denying or refusing a motion for a preliminary injunction 
 made by appellant. The complaint contains two causes of 
 action: one at law, for the recovery of the possession of an 
 undivided one third of the Montreal mining claim; and the 
 other an equitable cause of action, asking for an accounting 
 and an injunction. The latter, or equitable cause of action, 
 is the only one now before us for review. The hearing in the 
 district court was upon an order to show cause why an injunc- 
 tion, pendente lite, should not be granted. The court below 
 refused the injunction and dissolved the restraining order 
 previously granted. These rulings of the court are assigned 
 for error. 
 
 The plaintiff claims an undivided one third interest in the 
 Montreal mining claim as a lona fide purchaser from the 
 VOL. VII. — 36 
 
562 Injunction. 
 
 locators thereof, and the defendant, The Old Telegraph Mining 
 Company, claims the whole of it by virtue of a pnrchase in 
 good, faith from the locators of the No You Don't mining 
 claim, which is confessedly the older location of the two. The 
 proof shows (see Holden's affidavit, p. 100 of transcript) that 
 on the 3d day of April, 1876, the defendants, The Old Tele- 
 graph Mining Company, "to avoid litigation or being har- 
 assed by adverse claims," etc., purchased and received a deed 
 from the owners of the alleged Montreal mining claim to two 
 thirds of said Montreal mining claim. This is not deniedby 
 the proof, and was admitted by the plaintiff's attorney in the 
 argument. The plaintiif 's attorney takes the position that as 
 this claim of a two thirds interest was not set up in the an- 
 swer, the defendants can not, avail themselves of it by proof: 
 i. e., that the proof must correspond with the allegations in 
 the pleadings. This is admitted to be the rule on the trial 
 of the merits of a case, but does not apply in the case at bar. 
 For the purposes of this motion the answer is regarded simply 
 as an affidavit, and does not prevent the presentation of other 
 , affidavits setting up other and different causes for the refusal 
 of the writ prayed for: Falkinhurg et al. v. Li^cy et al., 35 
 Cal. 52; Delger v. Johnson, 44 Cal. 182. 
 
 The plaintiff asks for an injunction on the ground that he 
 is the owner and entitled to the possession of one third of the 
 Montreal mining claim, and that the defendants unlawfully 
 entered upon the same, ousted the plaintiff therefrom, and are 
 taking the ore from it, and are thus rendering it valueless, 
 and inflicting an irreparable injury upon the plaintiff. The 
 defendants resist the application for an injunction upon two 
 grounds: First, they denj' the ownersiiip and right to the 
 possession of plaintiff to one third of said Montreal claim, and 
 allege that the defendant owns the whole thereof, it being a 
 part of the No You Don't claim, of which the defendant is 
 the owner and tlie possessor; and, secondly, because the de- 
 fendant is the owner of two thirds of the said Montreal claim 
 by purchase from the co-owners of plaintiff, and therefore the 
 defendant has the better right to the possession thereof. The 
 truth or otherwise of the former resisting proposition de- 
 pends entirely upon the continuity of the vein or lode from 
 the No You Don't discovery point to the Montreal lode, 
 
Kahn v. Telegeaph Mining Co. 563 
 
 where the injury is charged to be committed and threatened. 
 This appears to have been the main question litigated in the 
 court 'below,- and nearly all the affidavits presented by the 
 respective parties beaPtipon- this point. The proof upon this 
 point is BO conflicting thai it would require a very close 
 investigation to determine on which side the greater weight 
 was, a task which, we think^ this court could not properly 
 assume in the case at bar. The title to the property is seri-! 
 ously and apparently bonafide-in dispute. The defendant is 
 in possession under stich claim of title. It does not appear 
 that ' the defendant is insolvent or pecuniarily unable to 
 respond to any damages the plaintiff may sustain. Nor does 
 it appear but that the defendant would, by being enjoined, 
 sustain as great, or greater, an injury as the plaintiff can sus- 
 tain by the refusal of the writ. Undfer these circumstamces, 
 we think the court did right in refusing the injunction and in 
 dissolving the restraining order previously granted: High on 
 Injunctions, §§ 261, 262; SMecfs Appeal^ 60 Pa. St. 172; 
 City of Ottawa v. Chicago c& R. I. E. E. Co., 25 111. 43. 
 
 The facts alleged in support of the second resisting propo- 
 sition are not disputed by the proof, but the conclusion drawn 
 from those facts is disputed by the plaintiff. Relief by in- 
 junction will sometimes be allowed between tenants in com- 
 mon, for the purpose'of preserving the estate and preventing 
 serious injury; and such relief can, with propriety, be invoked 
 more frequently in refei-ence to mining claims than any other 
 rights in or to real estate, owing to the peculiar character or 
 nature of the property in question; but we are not advised 
 of any authority which holds that the party confessedly own- 
 ing the major part of the iriines, and possessing and working 
 it in the ordinary way, was enjoined from so possessing and 
 working it, at the instance of the party owning the minor 
 part thereof, without making it to appear that the party pos- 
 sessing and working the mine was nnable to pay the damages 
 that might be awarded against him for his wrongful acts in 
 excluding the other from the benefits of such mine; and, as a 
 matter of principle, siuih can not be the law. 
 
 The position taken by the attorneys for the plaintiff, that 
 under the mining laws the owners of the No You Don't 
 lode can onlv follow such lode outside of their surface location 
 
564 Injunctioit. 
 
 as provided by such laws, but they can not legally appropriate 
 to their use the surface, the tunnels, improvements, workings 
 and avenues of access to such lode outside of the No You 
 Don't claim, is doubtless .true; but that their having so ap- 
 propriated the same is good cause for an injunction, does not 
 necessarily nor properly follow. 
 
 An injunction is a preventive remedy only, and can not be 
 invoked to restrain a party from doing an act which he has 
 already done. ^ In such a case, the party injured mast be re- 
 mitted to his remedy at law, which is, in every reppect, com- 
 petent to aflford adequate relief : Vcmgelin et al. v. Goe, 50 
 ill. 459. 
 
 Yiewing this case from every standpoint which we have 
 been able to take, we are clearly of the opinion that the dis- 
 trict court, in refusing the injunction and dissolving the re- 
 straining order, did not only not abuse the discretionary power 
 which it was called upon to exercise, but that it acted in strict 
 conformity with the principles of law and equity a]>plicable 
 to the case. 
 
 Ths order of the district court is affirtned. 
 
 Emebson J., concurs. 
 
 Thoen v. Sweeney et al. 
 
 (12 Nevada, 251. Sapreme Court, 1877.) 
 
 ' C!ondemning land for bringing water to towns. It is within the power 
 of the legislature to pass an act for the condemnation of land for the 
 purpose of bringing water into cities and towns. Such a taking would 
 be for a public use within the meaning of that term as used in the con- 
 stitation. 
 
 Technical, digtingnistaed from destructiTe trespasses. The construc- 
 tion of a ditch across rocky, barren and uncultivated land is not an 
 irreparable injury. The distinction between technical trespass and 
 trespass going to the extent of irreparable injury, is the foundation of 
 the jurisdiction of equity in the latter class of cases, and trespass in 
 the former class of cases will not be enjoined, although the plaintiff's 
 legal right to the land may not be denied, the defendants being solvent 
 and able to respond in damages. 
 
 ' See Robertson v. Smith, 7 M. R. 196. 
 
Thoen v. Sweeney. 565 
 
 Irreparable injury may not be averred in terms without stating the facts 
 
 which produce such result. 
 1 Easement, how acquired. An easement in land can only be acquired by 
 
 the consent or acquiescence of the owner. 
 
 Appeal from the District Court of Orinsby County, Second 
 Judicial District. 
 
 Tlie facts are stated in the opinion of the court. 
 
 T. W. "W. Davies, for appellants, who were defendants be- 
 low. 
 
 EoBEET M. Clarke, for respondent. 
 
 By the Court, Hawlet, C. J. 
 
 This appeal is from an order refusing to dissolve a tempo- 
 rary injunction. The motion to dissolve is based upon the 
 complaint and answer, and oral testimony submitted at the 
 hearing. 
 
 The complaint alleges that plaintiff is the owner in fee of 
 certain land; that the defendants unlawfully entered upon it, 
 dug up and removed the soil, dirt and earth thereon, and ex- 
 cavated and made a ditch for the purpose of conducting water 
 therein, and with the intent and purpose to establish and ac- 
 quire an easement and servitude in said land, to the injury of 
 said land, to plaintiff's damage in the sum of five hundred 
 dollars; that defendants are upon said land removing the soil, 
 dirt and earth therefrom, and threaten to continue said acts, 
 and to complete and maintain said ditch, easement and servi- 
 tude^ and to turn water into the same when completed, and 
 to continue to flow water through the same and across the 
 land of the plaintiff" perpetually in the future, to the per- 
 manent and irreparable injury of the plaintiff and his said 
 land. 
 
 The answer admits that the plaintiff is the owner of the 
 land; it denies that defendants, or either of them, unlawfully 
 committed the acts alleged; denies that by their acts "the 
 plaintiff has been, is, or will be damaged irreparably," or 
 that he has been, is, or will be damaged in any sum what- 
 ever. 
 
 ' Laterence's App., 7 M. R. S42. 
 
 * S. C. on second appeal, 13 Nev. 415. 
 
566 Injunction. 
 
 For further answer, the defendant, M. Kinckel, avers that 
 he is the owner of the Carson water works, with all its priv- 
 ileges, franchises, property and appurtenances, and being 
 so the owner of the same he desired to construct a ditch 
 throBgh, plain tiff's land, to be used in connection with said 
 works; that said defendants, being unable to obtain the 
 consent of said plaintiff to -construct said ditch, by offering 
 to pay full compensation for said land, and for all injury 
 that might be done thereto, proceeded under the provisions 
 of the act entitled " An act to allow any person, or persons, 
 to divert the waters of any river or stream, and run the 
 same through any ditch or flume, and to jirovide for the 
 right of way through the lands of others" (2 Comp. L, 3852 
 to 3855): that the defendants selected an appraiser, and (the 
 plaintiff refusing to act under said law) this appraiser selected 
 another, and these two selected a third, and the appraisers 
 thus selected assessed the damages at twenty-ijve dollars, which 
 amount was, by defendants, tendered to plaintiff, and by him 
 refused; that defendants Jiaye in all respects complied with 
 the provisions of said law;, that the land over which the ditch 
 would run is rocky, barren and of no value whatever; that 
 plaintiff has not and will not suffer any damage whatever by 
 the entry of defendants or by the construction of a covered 
 ditch across his land; that defendants, and each of them, are 
 solvent and able to respond in damages in any sum that 
 plaintiff may recover against thern. The defendant, Einckel 
 further avers that he has been damaged in the sum of one 
 hundred doillars, and that he will be further damfiged in the 
 sum of twenty dolWs per day for each and every day that he 
 is prevented from completing sajd ditch. by being "deprived 
 of the use of the water, in, his reservoir for, said water works 
 for the supply of persons in Carson City." It is also alleged 
 that plaintiff has a plain, speedy and adequate remedy at law. 
 
 The oral testimony substantiates., the tuatenaLallegationsin 
 the answer. 
 
 Respondent claims that the act under which the defen<3ants 
 Bojight to condemn his land is unconstitutional and void for 
 two, reasons: "First. Because it seeks to take private prop- 
 erty for private use. Second. Because the method provided 
 for the condemnation of the land is not by due process of law." 
 And he therefore' contends that, inasmuch as defendants ob- 
 
Thoen v. Sweeney. 567 
 
 tained no rights by virtue of said act, and as they admit his 
 title to the land, he is entitled as matter of right to the in- 
 junction, because the defendants threaten to continue their 
 unlawful acts, and acquire an easement in said land. 
 
 We think the principles decided by this court in Dayton 
 Oold and Sil/oer Mining Company v. Seawell, 11 Nev. 394, 
 are conclusive upon the point that it is within the power of 
 the legislature to pass an act providing for the condemnation 
 of land for the purpose of bringing water into cities and towns, 
 and tiiat such a taking would be for a "public use " within the 
 meaning of that term as used in the constitution. 
 
 The second objection urged by respondent's counsel presents 
 a question of grave importance which ought not to be decided 
 without mature consideration, and it is one which, from the 
 views we take of this case, it is unnecessary at the present 
 time to decide. 
 
 Admitting' for the sake of argument, without deciding the 
 point, that the act is in this respect unconstitutional,, does it 
 necessarily follow: that the injunction should not be dissolved? 
 We think not. The foundation of the jurisdiction in a court 
 of equity to issue an injunctiouj in aid of the^ act ion of tres- 
 pass^is the probability of irreparable injury', the inadequacy 
 of pecuniary compensation, or the prevention of a multiplic- 
 ity of suits where the rights are controverted by numerous 
 persons. In our opinion the facts of this case do not bring 
 the plaintiff within this rule. 
 
 It ifi' not sufficient that the complaint alleges that the injury 
 would be irreparable. The plaintiff must affirmatively show 
 how and why it would be so, otherwise the extraordinary rem- 
 edy by^rnjunction ought not to be allowed. The allegation 
 that'defendants will acquire an easement or servitude in the 
 land is answered 'by the fact that no such easement or servi- 
 tude could be: acquired except by the consent or acquiescence 
 of the plaintiff: Washburn's Easements and Servitudes, 3 Ed., 
 113,181,160. 
 
 The-construction of a ditch across the rocky, barren and un- 
 cultivated land of plaintiff is not an irreparable injury: Wal- 
 dron db Joiner v. Marsh et al., 6 Gal. 119. If any injury is 
 done to the land by the construction of the ditch the defend- 
 ants are solvent and able to respond in damages, and the 
 plaintiff has a plain and adequate remedy at law. 
 
568 Injunction. 
 
 This brings us to a consideration of the real question at 
 issue, whether the plaintiff is entitled to the injunction as a 
 matter of right, notwithstanding the fact that tiie injury 
 will be slight and the damages trivial, because the defendants 
 threaten to continue their illegal acts. It is well settled, 
 that where the title is undisputed, or has been settled by an 
 action at law, and the plaintiff is liable to be irreparably 
 injured by the continued acts of trespass, an injunction 
 should issue. This rule, very properly, prevails in all cases 
 where, as in Daubenspeck v. Grear,\he plaintiff is threatened 
 with injuries which would, if committed, result in the de- 
 struction of his property. 
 
 In such a case, " the fact that the defendants are willing to 
 pay for the property is immaterial, for there are no means of de- 
 termining whether the value of the property in money would 
 compensate the plaintiffs for its destruction." 18 Cal. 443- 
 But whilst Ibis rule is universal, it does not by any means fol- 
 low that the same rule prevails as a matter of course, simply be- 
 cause the title is undisputed, where no appreciable injury will 
 be done by the acts that are threatened to be continued. This 
 fact is clearly pointed out in the opinion of the chancellor in 
 Jerome v. Ross, a leading case n])on this subject. " I do not 
 know a case," says the chancellor, "in which an injunction 
 has been gi-anted to restrain a trespasser, merely because he 
 was a trespasser, without showing that the property itself was 
 of peculiar value and could not well admit of due recompense 
 and would bei destroyed by repeated acts of trfespass. In ordi- 
 nary cases the damages to be assessed by a jury will be ade- 
 quate for a check and for a recompense. 
 
 " Every man is undoubtedly entitled to be protected in the 
 possession and enjoyment of his property, though it may be 
 of no intrinsic value. He may have on his land a large mound 
 of useless stone or sand, which he may not deem worth the 
 expense of inclosing, and yet it would be a trespass for any 
 person to remove any portion of the stone or sand without 
 his consent; and he would be entitled to his action, even 
 though the damages were nominal. But would it be proper 
 for this court to assume cognizance of such a trespass and lay 
 the interdict of an injunction upon it? I apprehend not." 7 
 Johns. Ch. 334. In answering the objections as to multi- 
 plicity of suits, the learned cliancellor, in the same case, says: 
 
Thoen v. Sweeney. 569 
 
 "A court of equity will sometimes interfere to prevent a 
 multiplicity of suits, by a bill of peace. * * * But that 
 is only in cases where the right is controverted by numerous 
 persons, each standing on his own pretensions, and it has no 
 application to the case of one or more persons choosing to 
 persevere in acts of trespass, in despite of suits and recoveries 
 against them. A troublesome man -may vex and harass his 
 neighbor, by throwing down his fences and turning cattle upon 
 his grounds, or by passing over them, or otherwise annoying 
 him; but it is to be presumed that repeated recoveries for 
 damages, with the punishment of costs, and such smart money 
 as a jury would naturally give, would soon eflfectually correct 
 any such disposition. At any rate, I do not know that a court 
 of equity has ever interfered merely to correct such a practice, 
 and it would certainly require very strong evidence of the in- 
 efiicacy of the ordinary legal remedies for compensation, as 
 well as for correction, before this court would venture to as- 
 sume a jurisdiction hitherto unknown." p. 337. Equally 
 clear and positive is the language of the vice-chancellor in 
 Wood, v. Sutcliffe: "Whenever a court of equity is asked for' 
 an injunction in cases of sucli a nature as this, it must have 
 regard not only to the dry, strict rights of the plaintiff and 
 defendant, but also to the surrounding circumstances; to the 
 rights or interests of other persons, which may be more or 
 less involved; it must, I say, have regard to those circum- 
 stances before it exercises its jurisdiction (which is unques- 
 tionably a strong one) of granting an injunction. * * * I 
 can not assent to the proposition that, on the mere dry fact of 
 the plaintiff's having the abstract right, a court of equity will, 
 as a matter of course, on that right being established at law, 
 grant an injunction if the right be infringed ever so minutely." 
 42 Eng. Ch. 165. 
 
 The rule applicable to the facts of the case under consi<ler- 
 tion is very fully and correctly stated in a carefully consiilered 
 opinion, in Bassett v. Salisbv/ry Manufacturing Co., where 
 the question was presented to the court whether a judgment 
 in a suit at law, establishing the plaintiff's title, justified 
 the issuance of an injunction where the trespasses com- 
 plained of, though slight and trivial, were threatened to 
 be continued. The court say: "The power to grant in- 
 
570 Injunction. 
 
 junctions to prevent injustice has always been regarded as 
 peculiar and extraordinary. It is not controlled by arbitrary 
 and technical rules, but tlie application for its exercise is ad- 
 dressed to the conscience and sound discretion of the cotirt. 
 Ordinarily it will not be exercised when the right of tiie com- 
 plainant is doubtful and has not been settled at law; and even 
 wlien it has been so settled, an injunction will not be granted 
 when the remedy at law is adequate. It is not enough that 
 an injnry merely nominal or theoretical is apprehended, even 
 although an action at law might be maintained for it; but to 
 justify the interposition of this summary power, there mnst 
 be cause to fear substantial and serious damage, for whicii 
 courts of law could furnish no adequate remedy. Wiiat in- 
 juries shall be regarded as irreparable at law must, depend 
 upon the circumstances of the particular case. If the injury 
 be trivial, as by * * * raising the water of a river a few 
 inches upon his rocky shore, doing him no appreciable • or 
 serious damage, equity would not ordinarily interferes by in- 
 junction, even in cases wliere the right had been established 
 at law; for the power is extraordinary in its character, and is 
 to be exercised in general only in cases of necessity, and when 
 the court can see that other remedies are inadequate to do 
 justice between the parties; and even then it is to be exercised 
 with great care and discretion. If the granting of an injunc- 
 tion would necessarily cause great loss to the defendant, a 
 loss altogether disproportioned to the injury sustained by 
 the plaintiff, that fact should be considered; in determining 
 wbether the appliiKitiun should be granted, and in some cases 
 it would justly have great weight. It has often been su pposed 
 that when the right lias been established at law, tlie plaintiff 
 would be entitled to an injunction as matter of course; and 
 this misapprehension has arisen probably from the fact that 
 in a large number of cases injunctions have been refused upon 
 the express ground that the title of the plaintiff had not been 
 established at law, leaving room for the inference that if it 
 had bpen so established the injunction would have been issued. 
 This, however, is clearly not the doctrine of courts of equity, 
 for, they will not ordinarily exercise this summary and extra- 
 ordinary power when substantial justice can be done by courts 
 of law." 47 N. H. 437. 
 
 The doctrine announced in this case is fully supported by 
 
Thoen v. Sweeney. 571 
 
 the following anthorities: Blgelow v. The Hartford Br. Co., 
 14 Conn. 565; Wason v. Sanborn, 45 K H. 170; Blokes. 
 City of Brooklyn, 26 Barb. Z(il;Murray v . Knapp, 42 How. 
 Pr. 462; 62 Barb. 566; Nioodemus v. Nicodemus, 41 Md. 
 537; Weigel v. Walsh, 45 Mo. 560; Bechtel v. Carslake, 11 
 N. J. Eq. 244; Catching v. Terrell, 10 Ga. 578; Wooding v. 
 Malone, 30 Ga. 980; High on Inj., Sees. 459, 483; Eden on 
 In]., 231; 2 Story's Eq., 925, 928. 
 
 It follows from the. yipws above expressed that plaintiff is 
 not entitled to the extraordinary remedy he seeks. 
 
 Tiie discretion with whicli the nisi prius judge is clothed 
 in granting or refusing injunctions is a legal, not an arbitrary', 
 discretion. It seems to us quite clear that no restraining or- 
 der ought to have been issued upon the complaint in this ac- 
 tion; It is evident that it ought to have been dissolved upon 
 the motion and showing made by defendants. 
 
 In the consideration of this case, we have treated the de- 
 fendants as naked trespassers. .Their acts, however, were 
 neither wanton nor malicious. It is manifest that their ob- 
 ject was not to destroy the substance of plaintiff's estate, or 
 in any manner to injure his property to an extent that cyuld 
 not be fully compensated in damages. They threatened to 
 continue their acts, not for tlie purpose of destroying plaint-, 
 iff'sprojjerty, but with intent to save'their own. They acted 
 trom beginning to end ih apparent good faith, offering in ad- 
 vance to fully compensate plaintiff for any injury that he 
 might receive. This being refused, they proceeded in strict 
 compliance with the provisions of an existing statute that has 
 never b^en' declared unconstitutional by this coiirt. These 
 were projper ihattfers for the court' below to have takeh iritp 
 consideration, arid would certainly have ftilly justified " it iii 
 dissolving this injunction. ' ^ 
 
 If it is finally decided that the law is" constitutional, then 
 the plaintiff will be bound by the a\v'ard:6f the arbitrators; 
 Otherwise he will be entitled to recovfer damages for whatever 
 injury, if any, he has sustained by reason of the acts com- 
 plained of. 
 
 ■ The order of the district court refusing to dissolve the in- 
 junction is reversed, the injunction is dissolved, and the cause 
 
 remanded for further proceedings. 
 
 Bev&rsed. 
 
 I 
 
572 Injunction. 
 
 Clegg et al. v. Jones et ai,. 
 
 (43 Wisconein, 482. Supreme Court, 1878.) 
 
 ' Verdict in eqnitj not conclnsire. In an equitable action a yerdid has not 
 the same conclusive weight as an action at law; and, on appeal from a 
 judgement pursuant to such verdict, this court reviews the evidence. 
 
 Evidence necesgary to establish exclosive miningr lease. One who 
 claims an exclusive right to mine on a tract of land by virtue of an al- 
 leged parol lease, and seeks a perpetual injunction restraining others 
 from minmg thereon, though the latter do not interfere with his devel- 
 opment of his own range, must establish such right by clear and satis- 
 factory evidence; and the evidence in this case (for which see the opin- 
 ion) is held insufficient. 
 
 ' Parol lease— Statute of Frands. Whether a parol lease without ex- 
 pressed Umit of time, if established by clear and unequivocal proof, 
 would be valid under the Statute of Frauds, as a lease for one year, and 
 whetherit would be renewed from time to time by payment of rent, not 
 considered; but it seems that Ch. 260 of 1860, amended by Oh. 117 of 
 1872, does not affect the case. 
 
 Sew trial, when not allowed, on reversing Jndgment. No probabil- 
 ity appearing that the evidence would be materially different on a new 
 trial, this court, on reversing a judgment for the plaintiffs, duects a 
 dismissal of the complaint. 
 
 Appeal from the Circuit Coart for Iowa County. 
 
 Action for a perpetual injunction, re8t^aining defendants 
 from raining on a certain portion of a fortj-acre tract of land. 
 The relief was claimed in the complaint upon two grounds: 
 1. That plaintifls had the exclusive right to mine upon said 
 tract, under a parol lease from one Yivian, the agent of the 
 owner, made June 24, 1873, under which they claim to have 
 been in exclusive possession of the premises until disturbed 
 in their possession by defendants in October, 1876, 2. That 
 the place where defendants were mining was part of a valuable 
 discovery, lode or range struck and discovered by plaintiffs in 
 1870. The latter claim, however, was abandoned on the trial. 
 The answer, among other things, denied plaintiffs' exclusive 
 right. 
 
 The evidence for the plaintiffs, and the exceptions taken by 
 the defendants, will sufficiently appear from the opinion. 
 
 ' Law V. Grant, 7 M. R. .57; Fabian v. Collins, 5 M. B. 20. 
 "Friedhoffv. SmUh, 13 Neb. 5. 
 
Clegg v. Jones, 573 
 
 The judge submitted to the jury the following questions: 
 "What were the terms of tlie lease between Vivian and the 
 plaintiffs, if any? Was it a lease of all the minerals contained 
 in a certain piece of land, as claimed by tlie plaintiffs?" The 
 jury answered the second question afKrmatively. The court 
 afterward found the facts substantially as alleged in that part 
 of the complaint which was not abandoned, and rendered judg- 
 ment for tiie relief demanded; from whicli the defendants ap- 
 pealed. 
 
 There was a brief for the appellants, signed by Wm. E. 
 Carter, with Eeese Carter, and oral argument by Wm. E. 
 Carter. They contended, 1. That there was no sufficient evi- 
 dence of the alleged lease, or exclusive right. 2. That 
 there was no consideration to support the alleged lease; 
 plaintiffs, at the date thereof, not having nndertaken to do or 
 pay anything in consideration of a new riglit granted. 3. 
 That the case was not affected by Sec. 2, Ch. 260, Laws of 
 1860, because no discovery or prospect has been " struck " 
 upon the property claimed to have been leased June 24, 1873 
 and indeed it is not claimed that plaintiffs have struck any 
 discovery on any land since that date. 4. That, if not pro- 
 tected by that act, the pretended lease was void under the 
 Statute of Frauds. Upon this point, counsel referred to the brief 
 for the respondents in Sohey v. Thomas, 39 Wis. on p. 323. 
 
 Alexander Wilson, for the respondents, contended, 1 
 That there was sufficient evidence to support the verdict' 
 2. That the lease was renewed by each payment of rent, 
 from time to time, as the mining progressed. 3. That a 
 parol license to enter npon mineral lands and mine them, for 
 a specified share of the mineral raised, for an indefinite time, 
 with an entry under such license, and an expenditure of labor 
 and money in sinking shafts, running drifts, procuring ma. 
 chinery, and other preparations for mining under the license 
 gives to the licensee a valid subsisting interest in the real 
 estate, which the licensor can terminate only npon compensa- 
 tion for such expenditure, or the notice necessary to terminate 
 a tenancy at will: Rerick v. Keen, 2 Am. L. C. 733; Wicher- 
 sham V. Orr, 9 Iowa, 253, 260; Beaity v. Gregory, 17 Id. 109; 
 Bush v. /Sullivan, 3 G. Greene, 344. 
 
574 Injunctioit. 
 
 Cole, J. 
 
 The plaintiifs do not rest their claim for an injunction on 
 the ground that the diggings worked by the defendants were 
 upon the same range as that upon which the diggings of the 
 plaintiffs were situated. In the complaint this was stated as 
 one ground of relief; and it was alleged, among other things, 
 that the lead ores which tlie defendants had taken and carried 
 away, or which they threatened to take and were about to carry 
 away, were taken from a range which was connected with and 
 formed a part of the plaintiffs' discovery or range. But upon' 
 the trial below the plaintiffs, before any testimony was offered,^ 
 withdrew all claim to relief upon that ground," and their 
 learned counsel, on the argument in this court, said he did not 
 rely npon that ground to sustain the judgment. The plaint- 
 iffs' right to the perpetual injunction is founded and must 
 rest entirely upon their rights under the alleged parol lease 
 made by Vivian, the agent of the owner, with them, on or 
 about the 24th of June, 1873, in and by which they claim the 
 exclusive right and privilege was granted- them to mine, ac- 
 cording to mining usages, for lead and zinc ores, upon any 
 part of the tract of land lying northward of th« line designated 
 in the complaint, ujx)!! paying one tenth part of all ores, 
 whether of lead or zinc, raised by them from the leased prem- 
 ises, as rent therefor. After all the evidence had been re- 
 ceived the counsel for the defendants asked the court to sub- 
 mit to the jury certain questions. This the court declined to 
 do, but did submit the question as to what were the terms of 
 the lease made between Vivian and the plaintiffs, if any, and 
 whether it was a lease of all the mineral contained in the 
 piece of land above mentioned, as claimed by the plaintiffs. 
 The jury gave an affirmative answer to the question. A num- 
 ber of errors assigned relate to the rulings of the court admit- 
 ting or excluding evidence, to the refusal to submit to the 
 jury the questions asked for by the defendants, and to errors 
 in the charge. But these errors were not argued by defend- 
 ants' counsel, except so far as they were involved in the dis- 
 cussion of the following questions: I. Does the evidence 
 sustain the alleged exclusive lease?' and 2. If so, is the lease 
 valid and binding in law, and of such a character that it could 
 not be revoked by the landlord? 
 
Clegg v. Jones. 575 
 
 This -was an eqiiifable action, and the 'finding 6f the jury 
 npon all qnestions of fact can not have the same conclusive 
 effect as in actions at law: Gill v. Bice, 13 Wis. 549. The 
 verdict of the jury is merely to enlighten theconseienee of the 
 chancellor: Johnson .v. Johnson, 4 Wis. 135. We have 
 therefore to examine the evidence for. ourselves, and see if it 
 sustains plaintiffs' claim to an exclusive ri&ht and privilege to 
 mine upon the whole north part of the forty-acre tract. And 
 upon that question we are very clear that the evidence estab- 
 lishes no such right. 
 
 The principal evidence adduced to prove this excliisive right 
 was the testimony of the plaintiff, Samuel Clegg. He details 
 the circumstances attending the making of the parol lease, and 
 even attempts to give the very words nsed by V-ivian when he 
 made it. Clegg had been mining upon the forty-acre tract 
 for some years, and had made a valuable discovery of mineral 
 thereon. lie says, in substance, that on the 24th of June, 
 1873, he went to see Vivian, and to pay rent due. He then 
 stated to Yivian something about trespassers, and current re- 
 ports that a party of men were cbming upon the north part 
 of this forty, between the plaintiffs' shaft or diggings and 
 Glandville's fence; stated that the plaintiffs were tlien paying 
 out for men, wages and materials about $500 per month; that 
 it looked hard that men should come and head the plaintiffs 
 off that way, especially as Vivian Iiad previously granted him, 
 the witness, full permission, and had said to him that no one 
 sliould come north or south of him on these diggings to inter- 
 fere with witness in any shape. In reply to these remarks, 
 Vivian said: "Old man, rest satisfied, there is no one shall 
 come on that land between Johnson Glandville's fence and 
 you, nor east of yon, north, south, east or west of you." This 
 is the substance of the testimony in regard to the terms of the 
 parol lease granting an exclusive right to mine on the north 
 part of the tract. And while it is slightly corroborated by 
 other testimony given on the part of the plaintiffs, yet upon 
 the most favorable construction which can be placed upon it^ 
 it fails to establish the exclusive right claimed. The language 
 is loose, vague, uncertain and indeterminate in its meanmg. 
 When considered in connection with the other evidence, more 
 especially the testimony of Vivian, it only warrants this in- 
 
576 Injunction. 
 
 ference and establishes this fact: The plaintiff had received 
 permission to mine upon tlie tract, and was granted the risjlit 
 to prove up his diggings and follow any range he might dis- 
 cover on the land without let or hindrance from any one. It 
 is evident that Clegg was afraid some one would interfere with 
 his rights, or attempt to trespass upon his range. He there- 
 fore souglit protection of the agent against any such inter- 
 ference, and was assured that no one should interfere with his 
 diggings or his right to follow up and prove his range on the 
 land, wlierever it should rnn. Tliis is all, we think, that can 
 be inferred from the language used, and it is precisely what 
 Vivian testifies the right was which he granted. Without 
 dwelling upon the testimony any further, however, we are 
 constrained to say that the exclusive right to mine upon the 
 tract in question is not established by that clear and satisfac- 
 tory evidence which is essential to warrant the court in grant- 
 ing a perpetual injunction against others mining on the same, 
 who did not interfere with the plaintiffs' existing rights in 
 developing their range. 
 
 If this exclusive right had been established by clear, definite 
 and unequivocal proof, we should then have to determine 
 whether the parol lease would be valid under the Statute of 
 Frauds. In Ganter v. Atkinson, ,35 Wis. i8, by an oral agree- 
 ment, the owner of certain lands gave the plaintiffs the right 
 to enter thereon for mining purposes, and the exclusive right 
 to mine in or upon the sime, and to take any ores therefrom 
 for a certain rent in kind. The lease was upheld as a lease 
 for one year. But there the lease was of particular ground 
 described by metes and bounds. If, in this case, the parol 
 lease of an exclusive right had been proven, as claimed by the 
 plaintiffs, tlie question would arise, whether it would be re- 
 newed from time to time by payment of rent. But as the 
 case stands, no such question is before us. I^or do we see 
 that Oh. 260, Laws of 1860, and the amendatory act (Ch. 117, 
 Laws of 1872), affects the case. 
 
 In some cases this court, on reversing the judgment in an 
 equity case, has ordered a new trial, where there was reason 
 to suppose that important testimony had been omitted or 
 might be procured which would materially affect the rights 
 of parties, and that the canse of justice would be ])romoted 
 tiiereby. In this case, however, there does not s^em to be any 
 
Edwards v. Allouez Mining Company. 577 
 
 object in graiitin<T a new trial, since there is no probability 
 itliat the evidence in regard to the parol lease would be 
 changed by our doing so. 
 
 . JBt THE GouET.-^Xhe judgment of the circuit court is re- 
 versed, and the cause remanded, with directions to dismiss the 
 complaint. Reversed. 
 
 Edwards v. The, Allouez Mining Company. 
 
 (38 Michigan, 46. Supreme Court, 1878.) 
 
 General rules (applicable to injniictiong. Injunctions are to pre- 
 vent irreparable mischief and stay consequences that could not be ade- 
 
 : -. quately compensated; their allowance is discretionary and not of right. 
 
 ,. „ They call for good faith in the petitioner, and may be withheld if likely 
 to mflict greater injury than the grievance complained of. 
 
 ' Motives of petitioner inquired into. Where, by inviting an injury, one 
 places himself in a position to call for an equitable remedy, his motives can 
 b& inquired into, even though he grounds himself on a strict legal right. 
 
 ^ Injunction to restrain a provoked injury denied. A m;\n bought for 
 speculation certain bottom lands upon which large quantities of sand 
 were being deposited by a stream, which operated a stamp mill higher up. 
 He put a valuation upon the land of from three to five times what it 
 cost him, and tried to sell it to the corporation which owned the mill, 
 but it declined to buy. Then he prayed for an injunction to restrain the 
 corporation from sanding his land and polluting the streaiji : Hell, that 
 an injunction would not lie, and that the speculator was entitled to such 
 
 ■ remedy as the law would give him, and no more. Campbell, C. J., 
 dissented. 
 
 Appeal from Washtenaw, the case having been transferred 
 from Keweenaw. Submitted October 17, 1877. Decided 
 January 9, 1878. 
 
 Injunction. The writ was denied and complainant ap- 
 pealed. Thefacts are in the opinion. 
 
 Ball & Owen, and G. Y. N. Lotheop, for complainant. 
 
 W. D. Williams, for defendant in error. 
 
 ' Fxdd V. Beaumont, 7 M. R. 257; Munson v. Tnjon, 7 M. E. 469. 
 
 ■ '^Ljfon V. Woodman, 7 M. E. 493; Bankart v. Houghton, 27 Beav. 425; 
 PoH NrrisANCB. 
 
 VOL. VII.— 37 
 
578 ' Injunction. 
 
 COOLEY, J. 
 
 This is an injunction bill, and the facts are very simple. 
 Defendant, at a cost of some sixty thousand dollars, erected a 
 stamp mill on the banks of Hill creek, in the year 1874, and 
 has since been operating it for copper mining purposes. As 
 a result of its operations large quantities of sand are carried 
 down by the waters of the stream and deposited on the bottom 
 lands below. 
 
 The evidence leads to the belief that it would be impossible 
 to carry on the mining operations of the defendant with profit 
 unless this is permitted. The year following the erection of 
 defendant's mill, complainant purchased a piece of land 
 through which the creek runs a short distance below the mill, 
 and upon which the mill as operated was depositing sand. The 
 land was not purchased for use or occupation, but as a matter 
 of speculation, and apparently under an expectation of being 
 able to force defendant to buy it at a large advance on the 
 purcliase price. It was offered to defendant soon after the 
 purchase, and though no price was named, the valuation which 
 has been put upon it by complainant and his witnesses, is 
 from three to five times what it cost him, and this perhaps 
 gives some indication what his expectations were. The real 
 value of the land except as a convenience in the business of 
 defendant would seem to have been small. When defendant 
 declined to purchase, this bill was filed. The prayer is that 
 defendant be restrained from running or depositing it's stamp 
 sand on complainant's land, and from polluting the waters 6f 
 the stream by its ojjerations. This is a short statement of so 
 much of the case as is material to what follows. The circuit 
 judge refused the injunction prayed for, but ordered a refer- 
 ence to a jury for an assessment of damages. 
 
 There is no doubt that the operations of defendant, whether 
 they inflict any serious injury on complainant or not, amount 
 in effect to an appropriation of that portion of his property 
 upon which sand is being deposited: Ashley v. Port Hwron, 
 35 Mich. 296; Pumpelly v. Green Bay ^o., 13 "Wall. 166; 
 Arimond v. Green Bay Co., 31 Wis. 316; Howe v. Ports- 
 mouth, 56 N. H. 291 ; Woodward v. Worcester, 121 Mass. 245. 
 It follows and is beyond question that complainant sustains 
 
Edwards v. Allouez Mining Company. 579 
 
 a legal injury for which he is entitled to suitable redress. 
 Tlie only question on this record is, whe'ther he is entitled to 
 the special redress he seeks, namely, an injunction. 
 
 An injunction is not a process to be lightly ordered in any 
 case, where the effect will be to present to the owners of a 
 vainable mill the alternative either to purchase complainant's 
 lands at his own price or to sacrifice their property; any court 
 having the power to order it, oftght very carefully to scru- 
 tinize the case and make sure tiiat equity requires it. In 
 theory its purpose is to pi-event irreparable m'^schief; it stays 
 an evil the consequences of which could not adequately be 
 compensated if it was suffered to go on : Gilbert v. Shower- 
 man, 23 Mich. 448; Bemis v. JJpham, 13 Pick. 169; Wason 
 V. Sanborn, 45 N. H. 169; Coolcey v. Carroll, 4 Md. Ch. 344; 
 Nieodemun v. Nicodemus, 41 Md. 529; Burgess v. Kattle- 
 man, 41 Mo. 480; Owen v. Ford, 49 Mo. 436; Mo-rris, etc., 
 Co. V. Central B. R. Co., 16 N. J. Eq. 419; Pettibone v. 
 La Orosse, etc., R. R. Co., 14 "Wis. 443; Rine v. Stephens, 
 33 Conn. 497; Rhodes v. Dunlur, 57 Penn. St. 274; Rich- 
 ard's Appeal, Id. 105; HarMnson's Appeal, 78 Id. 196; 
 State V. Judge, 16 La. Ann. 233; Goodell v. Lassen, 69 111. 
 145. The writ " is not ex debito justitioe, for any injury threat- 
 ened or done to the estate or rights of a person, but the grant- 
 ing of it must always rest in sound discretion, governed by 
 the nature of the cq,se." Enfield Toll Bridge Co. v. Oon- 
 ' necticut River Co., 7 Conn. 50. As is said in another case, 
 " Injunction is not of right but of grace; and to move an up- 
 right chancellor to interpose this strongest arm of the law, he 
 must have not a sham case, but a well grounded complaint, 
 the bona fides of which is unquestioned, or capable of vindi- 
 cation if questioned." Kenton v. Railway Co., 54 Penn. St 
 454. "There is no power," says Mr. Justice Baldwin, " the 
 exercise of which is more delicate, which requires greater cau- 
 tion, deliberation and sound discretion, or is more dangerous 
 in a doubtful case than the issuing of an injunction. It is the 
 strong arm of equity that never ought to be extended unless to 
 cases of great injury, where courts of law can not afford an ade- 
 quate or commensurate remedy in damages." BonapaHev. 
 Camden, etc., R. R. Co., Baldw. 218. All the cases referred 
 'to show that the court looks beyond the actual injury to con- 
 
580 lis'jUNCTioif. 
 
 s 
 
 template the consequences, and however palpable may be the 
 wrongj it will still balance the inconveniences of awarding or 
 denying theiwritj and adjudge as these may incline the judi- 
 cial mind: 'Grey v. Ohio, etc., R. R. Co'^, 1 Grant, 412; Vamey 
 vi Pope, 60 Me. 192; Bodey v. M'Kim, 7 Har. & J. 468. 
 Even in the case of a palpable violation of a public right to 
 the annoyance, of an individual, be must show the equity 
 which requires this summary interference as the only adequate 
 means of obtaining jnstiaeu Spamhawk v. Union Passenger 
 Railway Co., 54 Penn. St. 401. 
 
 ■ What is the. irreparable injury which is done or threatened 
 in. this case? We can see very plainly what it' is in the case 
 of many nitisancesj and the equity of this/particular remedy 
 is thett venri manifest. If one man creates intolerable smells 
 near his neighbor's homestead, or by excavations threatens to 
 undermine his; house, or cuts off his. access to the street by 
 buildings or ditches, or in any other way destroys the com- 
 fprtable, p&aceful and quiet occupation of his homestead, he 
 injures iiim irrevocably, i^o man holds the comfort of his 
 heme for sale, and no man is willing to accept in lieu of it an 
 award of damage. If equity could not enjoin such a nui- 
 sance, the writ ought to be dispensed with altogether, and the 
 doctrine of irreparable mischief might be dismissed as mean- 
 ingless. A nuisance which affects one in his business is less 
 in degree, but it may still be irreparable, because it may 
 break up the business, destroy its good will and inflict dam- 
 ages which are incapable of measurement, because the ele- 
 ments of reasonable certainty are not to be obtained for their 
 computation. Even in the case of unoccupied land a nui- 
 sance may threaten. irreparable injury, where it is devoted in 
 its .p.ujrchase to some special use, or where the person causing 
 tlie nuisance is irresponsible, and in some other cases wliicli 
 need not here be specially mentioned. 
 
 '- The land injured in this case was bought by the complain- 
 ant with a preconceived purpose to force a sale of it upon the 
 defendant. He did not want it for a homestead or for busi- 
 ness projperty, but.for the money he could compel the defend- 
 ant to pay for it. It may be said that no one is concerned 
 Isfifch the motives of another in making a lawful purchase, or 
 upt .doing any other lawful act; and this is true as a rule, but 
 
Edwards v. Allotjez Mining Company. 681 
 
 it is not true universallj. Wherever one keeps within the 
 limits of lawful action, he isicertainly entitled to the>protec-: 
 tion of the law, whether his motives are commendable or not; 
 but if he demands moreifchan the 'strict rules of Jaw can give 
 him, his motives may become important. In general, it must 
 be assumed that the rules of the common law will give ade- 
 quate redress for any injury,- and when the litigant avers that 
 under the circumstances of his particular case they do not, 
 and that therefore the gracious ear of equity should incline 
 to hear his complaint, it may not be amiss to inquire how he 
 came, to be placed in such, circumstances. If a man . invite.8 
 an injury, he piay, still have his redress in the courts of law, 
 but his prayer for. the special iaterposi tion of, equity on the 
 ground, thai what he. invited and expected was abont irrepar- 
 ably to injure, would not be likely to trouble the judicial, 
 conscience very much if it were wholly ignored. , The Supreme 
 Court of Connecticut hot long since felt compelled,, under 
 circumstances very similar to those shown by this record, to 
 look into the motives of a corporation in .making a purchase 
 witii a view to litigation, and to deny relief upon the, ground 
 tiiat an acquisition, of land for such a purpose was ultra vires.: 
 Occum Co. V. Sprague Manvfaeturing Co., .34: Conn. 540. 
 We can not say in this case that complainant-had no right to 
 buy, but we can say, as we do, that when he. comes demand- 
 ing strict legal.rights he. shall have tliose,-but no more. He 
 is entitled to his rights under .the rules of law, but he is en- 
 titled to nothing of grace. 
 
 The land having been bought to make money from by sale, 
 a legal award, of .damages for an injury to it, is in furtherance 
 of the purpose of the purchase, and therefore, a suitable and 
 a just redress. Defendant is not alleged to be irresponsible, 
 and a jury^it is supposed, will award all that is reasonable.- If 
 complainant wants; more than is re.:isonabJe,*he has a right to 
 obtain it uader the rules of law, but he can not demand tl<p 
 aid of equity in a speculation. If, in speculative language, he 
 has a corner in real estate, there is no greater reason why he 
 should have the. assistance of an injunotion,to aid his schemes 
 than .there would be if, 'on. the produce exchange, he had 
 effected a corner in grain. ,, Without the writ in either case 
 he may be the sufferer, but he suffers nothing for which dam- 
 
582 Injunction. 
 
 ages can not compensate him. The elements of irreparable 
 injury are entirely wanting to his case. 
 
 Our conclusion is tiiat the circuit court gave the com- 
 plainant all he was entitled to when the case was sent to a 
 jury. The decree must therefore be affirmed with costs. 
 
 Graves, J. — I concur in affirming the decree. 
 Campbell, C. J., dissenting. 
 
 It appears without doubt in this case that defendants, with- 
 out color or claim of right, are keeping up a continuous series 
 of invasions upon complainant's freehold by using a running 
 stream as a means of transporting sand upon his bottom land 
 in quantities sufficient to bury it. The same course of conduct 
 defiles and silts up the stream, rendering it useless to him for 
 any purposes of business or convenience. It is equivalent in 
 mischief to talcing away or destroying his property in the land 
 and his rights in the water. 
 
 I can not concur in the doctrine that any one's rights of 
 this kind are subject to judicial discretion. The rights to 
 equitable relief, wliere that is the only adequate remedy, are 
 as absolute as to legal relief. The one remedy is no more 
 sacred than the other, and no more capable of lawful denial. 
 If the defendants were to take possession of the land in ques- 
 tion by putting a tenant upon it, no power would exist any- 
 where to deny complainant his possessory remedy. Where 
 the same sort of vi^rong is done by indirect assumption of pos- 
 session, so that all the advantages of actual possession are 
 enjoyed by the wrongdoer without going in person upon the 
 soil, there is no reason for denying the only remedy which 
 can secure to complainant the future enjoyment of his own 
 estate which would not as justly authorize the refusal of a 
 possessory remedy in the other case. And no remedy at law 
 is adequate for such a grievance as is here complained of, 
 beciiiise no legal remedy can secure complainant the use of 
 his own pro])erty. 
 
 It is not claimed, and there is certainly no ground for claim- 
 ing, that there is any equitable estoppel. Defendants have 
 never acted on any belief that they had a right to do what 
 they are doing. They have always known they were wrong- 
 
El VERS V. BURBANK. 583 
 
 doers, and have simply presumed on the patience of their 
 neiglibors, and neglected to purchase what they could origi- 
 nally have purchased if they had chosen. Neither does the 
 proof show any very serious difficulty in the way of avoiding 
 niischief, although 1 do not regard this as at all essential. 
 
 It is not denied by complainant that he purchased for spec- 
 ulative purposes. As every one has a right to do this if he 
 chooses, it can not in any way lessen his claims to protection. 
 It would be, I thint, a very dangerous principle to hold, that 
 a civil wrong can be lessened by the motives of tlie party 
 injured, so long as he has done no wrong himself. The prop- 
 erty of one man is as much entitled to protection as that of 
 another — not because he bought it or intends to use it without 
 selfish motives, but because it is property. Any attempt to 
 discriminate would, in my opinion, leave private interests sub- 
 ject to a discretion which no man could calculate upon, and 
 make the judicial conscience the only arbiter of every one's 
 rights. Some courts may have acted on this notion, but it 
 seems to me that such precedents are unjust, and are not con- 
 sistent with law or equity, as we have received them under 
 our constitutional guarantees of protection to person and 
 property. 
 
 I think the court below should have granted a perpetual 
 injunction as prayed. 
 
 Maeston, J., did not sit in this case. 
 
 Affirmed. 
 
 Rivers v. S. M. and C, E. Buebank. 
 
 (13 Nevada, 398. Supreme Court, 1878.) 
 
 'Ditch upon public domain not enjoined. Under § 2339, TJ. S. Rev. 
 Stats., the defendants had the right of way for the construction of 
 a ditch over the public domain, subject only to the liability of paying 
 for all damages done by them to plaintiff's possession. And since the 
 allegation of defendants' insolvency is fully denied in the answer, they 
 ought not to be enjoined from doing upon the public domain what the 
 paramount law declares they may do. 
 
 ' Thut V. Sweeney, 7 M. R. 564. 
 
584 IiVjuNCTioif. 
 
 Recorded snrveys evidenee of possession— Burden of proof. Under 
 the statutes of Nevada, in order to make certain surveys evidence of 
 possession, it is a condition precedent that the surveyor's certificate 
 should be recorded within thirty days from the date of its delivery, and 
 the burden of proof is, in this case, held to be upon the pkuntifF to 
 show that the certificates were recorded in time, 
 
 Castom in violation of statnte. Constructive possession of public lands 
 in Nevada can only be had by comp'iance with the Possessory Act of 
 that State, and no custom of holding lands in direct violation of the 
 statute will be recognized. 
 
 1 The rule that possession of a part is extended by construction to the 
 whole of lands called for in paper title does not apply to claims on the 
 public domain held under an inoperative deed. 
 
 Laches in obtaining possession. If a party undertakes to subject to his 
 dominion any portion of the public domain, the law will protect him in 
 his possession, if he pursues the work of inclosing the itract with rea-r 
 sonable diligence; but in this case the. plaintiff, having failed to show 
 any effort on his part to subject the land to his control for a period of 
 two years, was held to have shown an inexcusable want of diligence. 
 
 ' Possession of public land— Insnfiicient bonndaries. Plaintiff claimed 
 to be in possession of a tract of public land, through which the defendant 
 dug aditch- The land was used chiefly for grazing purposes, the:boandr 
 aries very imperfectly marked, and cattle belonging to strangers were 
 allowed to graze with those of the plaintiff upon the land: Held, that 
 the testimony set forth in the opinion was insufficient to show that 
 plaintiff had possession of the land over which, the ditch was dug. 
 
 Appeal from tlie District Court of the Eighth Judicial Dis- 
 trict, Esmeralda County. 
 
 The facts are stated in the opinion. 
 
 Ellis & King, and D. J. Lewis, for appellants, who were 
 defendants below. 
 
 RoBEET M. Claeke, for respondent. 
 
 By the Court, Leonaed, J. 
 
 This is an appeal from an order refusing to dissolve a 
 temporary injunction — an order denying defendants' motion 
 for a new trial, and from the judgment. The action was 
 brought to recover eight hundred dollars damages for an alleged 
 trespass in digging a ditch over and upon the land described 
 in the complaint, and running water therein. Plaintiff also 
 
 ■ Roberts v. Wilson, 4 M. R. 498. 
 
 2 Hess V. Winder, 30 Cal. 349; Post Possessios. 
 
ElVEES V. BUKBANK. 685 
 
 prayed the court to enjoin the defendants from digging said 
 ditch, from conducting water .therein,, and from committing 
 any furjiher, damages upon tlie land described. The defend- 
 ants .were enjoined until-, further order, of the court. After 
 due notice, defendants moved to. dissolve the injunction upon 
 the complaint and answer. That, motion, was denied, and 
 plaintiff obtained a verdict in his favor for one hundred and 
 fifty dollars damages, for which sum judgment was entered 
 against defendants, besides seven hundred and.twenty-sixdol- 
 lars and thirty -.five centSrCOSts,.and defendants were enjoined 
 "Jrom. the construction. of any ditches,;andfrom the. running 
 of any waters over, through or npon plaintiff's said land, and 
 forever, restrained and enjoined. frpm further damaging said 
 premises by the digging of ditches or the running of water as 
 'aforesaid." 
 . In his complaint, plaintiff alleges, these facts only:. " That 
 since^March, 1871, he has been, and still is, the owner in pos- 
 session and eatitled to the possession of six hundred and forty 
 acresiof land jdescribed therein; tihat he^has a femily residence 
 up.on said; land , in which heandhis family reside; that he has 
 cultivated a garden and gi^ows grass and grain upon said land; 
 that on the tenth day.of April, ISW, without plaintiff's consent 
 and against, his will, defendant forcibly and unlawfully entered 
 upon said land and cut a ditch one mile in length across the 
 same for the purpose of conveying water; that by thecutting 
 of said ditch, and throwing the-earth from it .over a portion of 
 said land,, the latter has been rendered unfit for cultiv^ation, 
 plaintiff's property has been injuriously affeotedj and his use of 
 it obstructed, by defendants' ditch,, to plaintiff's damage in 
 the sura of ;$800; that the damage being. done to plaintiff's 
 land by the digging of said ditch and the flowing of said 
 water in and upon the land described, is. irreparable; tiiat 
 plaintiff has been,' informed and bel/'eves, and so charges the 
 tacts to be, that defendants are insolvent and can not respond 
 to him in damages for any judgment he mioht obtain against 
 tliem..; t'lat plaintiff is without any adeqaateremfedy at law 
 ,and is entirely remediless without the equitable interposition 
 of the court." No other facts are stated. liefendants deny 
 ail tlie materia' allegations of the complaint, and consequently 
 all the equities, by a sworn answer. S. E. Burbank, one of 
 
586 Injunction. 
 
 the defendants, avers that on the second day of April, 1877, 
 he became the owner in fee, conditional, of a large portion of 
 the land described, and over which said ditch was constrncted, 
 by pnrcliase from the government of the United States, under 
 an " Act fo provide for the sale of desert lands in certain 
 States and Territories," approved March 3, 1877, and that he i s 
 still the owner, in the possession and entitled to the posses- 
 sion, of the lands so purchased. 
 
 Counsel for plaintiff admit that the averments of the com- 
 plaint in support of the injunction are exceedingly defective; 
 but they urge that in the absence of a demurrer, they are 
 sufficient after verdict and judgment for plaintiff, if the evi- 
 dence sustains the judgment. Without deciding whether 
 counsel are or are not correct in their conclu^ons as to the 
 effect of the defective pleading, we shall assume, for the sake 
 of the argument only, that thej' are correct, and shall examine 
 the case in the light of the evidence, there being no substan- 
 tial coiiilict as to the controlling facts. We pass the alleged 
 error of the court in refusing to dissolve the temporary in- 
 junction, and shall consider the questions presented from two 
 standpoints. 
 
 1. Admitting for the present that plaintiff was entitled to 
 a judgment for one hundred and fifty dollars damage, was he 
 also entitled to an injunction? 
 
 2. Was he, from the evidence, entitled to any damages? 
 
 There are many reasons why the first question must be an- 
 swered against the plaintiff, some of which will be stated. 
 It by no means follows that the court would have been justi- 
 fied in enjoining defendants after verdict for plaintifi", even 
 though the proof had established the fact that plaintiff's legal 
 rights iti the land were superior to the rights of defendants: 
 Wason V. Sanborn, 45 N. H. 171; Thorn v. Sweeney, 12 
 Nev. 254. The land in question at the time the final injunc- 
 tion was granted was a portion of the unsurveyed public do- 
 main. Plaintiff has never taken any step to acquire title from 
 the government. Under such circumstances there can be no 
 doubt that, under the act of Congress of July 26, 1866 (Sec. 
 2339, U. S. Rev. Stats.), defendants had the right of way for 
 the construction of their ditch over this land, subject only to 
 the liability of paying for all damages or injuries done by 
 
ElVEKS V. BUEBANK. 587 
 
 tliem to plaintiff's possession. By that section the right of 
 way for the construction of ditches and canals upon the public 
 domain, for agricultural and other purposes named therein, 
 is acknowledged and confirmed. There was no testimony 
 showing or tending to show that in the construction of their 
 ditch, or in conducting water therein, defendants interfered 
 "with, or injured, plaintiff's possession, unless he was in pos- 
 session of the laud itself. They did not injure any crops, 
 fences or otlier improvements. The allegation of defendants' 
 insolvency was fully denied by the answer, and there was no 
 testimony tending to show that they were unable to respond 
 in damages for any amount that might be recovered against 
 them, in this or any subsequent action. Such being the case, 
 we must presume that defendants were entirely solvent. 
 
 Upon tills point, then, our case is this: Defendants are 
 enjoined from doing, upon the public domain, what the para- 
 mount law declares they may do, when they are able to pay 
 all damages done, or that may be done, to plaintiff's posses- 
 sion. It IS a part of the act of Congress organizing the Ter- 
 ritory of Nevada, that " no law shall be passed interfering 
 with the primary disposal of the soil." The injunction in 
 this case did, indirectly, so interfere. It deprived defend- 
 ants of a right acknowledged and confirmed to them. The 
 court could not do indirectly what the legislature was ex- 
 pressly prohibited from doing. Besides, the injury is not 
 irreparable. Full compensation can be recovered in an action 
 at law, if plaintiff has the superior title. Upon the question 
 of damages plaintiff testified as follows: "In digging the 
 ditch, defendants threw the earth out of it on the bank— the 
 north bank. They also flowed water through it. With the 
 ditch and the water, they have damaged me in a considerable 
 sum of money. It is difficult to estimate the amount of 
 damage. 1 think that, including what it would cost me to 
 fill up the ditch, the damage is equal to the amount named in 
 the complaint. Don't think I could fill it up for less than a 
 thousand dollars. I consider it a continuing damage as long 
 as the ditch is there. * * * The water in the Burbank 
 ditch is a damage to my ranch, in addition to cutting it up 
 and making it more difficult to farm. It will cause willows 
 to grow along the bank of the ditch after a time. That 
 
588 Injunotioij. 
 
 has been the effect .produced ^ by the Weat Walke* river 
 ditcli." 
 
 T. B. Smith, a witness for pkintiff, testified that ^' he 
 thought the ditcli was a damage to plaintiff's land; that if he 
 owned tlie land he would not havetlie ditch run over at for 
 considerable moneyj" Defendants testified that ~they were 
 in great need of the water; that they had no other S'Ource from 
 which they could obtain water for irrigating- their land; that 
 if they were deprived of itsiuse, their crops would be entirely 
 and hopelessly destroyed, and that they-would be damaged 
 thereby several thousand dollars in- one season. 
 
 The abuve is all the testimony upon the: quesfiion rof dam- 
 age. Tlie ditch was completedy and the water turned in and 
 kept runniniTj some time before the preliminary injunction 
 even. At the'time of the. final injunction, the only act done, 
 or to be done b}' defendants,: was the running of water in a 
 completed, ditch, ithronghian open, unoccupied, uncultivated 
 portion of the public, domain, used only for grazing purposes 
 by plaintiff, and others whohad no claim to it. If thedig^ 
 giiig at' the ditch damaged plaiatiff, saeh damage was com- 
 j)lete before defendants were- enjoined. The only possible 
 future damage that could have been, antieipatedy was such as 
 niightresnlt from keeping the ditch-in repair, and running 
 water therein, through an arid country that must be irrigated 
 by artificial means before any; kind of , crop can be produced. 
 There. is no testimony tliat any injurious result will follow 
 from the running of water in the ditch, except that it will 
 cause willows to grow upon the banks. Whether i such 
 growth will be an injury, and if so, how much, or a benefit, 
 does not appear. At any rate, admitting for the present pur- 
 pose, that plaintiff's rights are superior to defendants', it is 
 ap]>arent that his injury, on account of the running water, ie 
 but trifling in comparison with defendants'. -losses, if .they are 
 deprived of its use. The preliminary injunction should have 
 been refused, because the complaint was insufticient to justify 
 it; but having been granted, it should have been dissolved on 
 defendants' motion, and a final injunction should have been 
 denied after verdict for plaintiff: Thorn v. Sweeney^ 12 
 ]SIev. 254. 
 
 We now come to the inquiry whether, upon the undisputed 
 
ElVEES V. BtJIiBANK. • 589 
 
 faets of the case, plaintiff was or was not entitled to recover 
 damages in any snm. The answer first depends upon the 
 result of another inquiry; to wit: At the time of the alleged 
 trespass did plaintiff have such title or possession as entitled 
 him to maintain this action for injury to the land itself? If 
 he did not, the condition of defendants' title is a matter ofno 
 consequence. 
 
 ■ As in ejectment, a rightful possession in the- plaintiff is 
 sufficient to enable him to maintain this action: Rogers v. 
 Vooney, 7 Nev. 217. 
 
 In Staininger v. Andrews, ■i'Sev. 66,. this court said: 
 "There seem to-be but two methods in this State of acquiring 
 title sufficient to maintain ejectment to public lands not sur- 
 veyed or brought into market by the general government, 
 and these are: First. By a compliance with requirements of 
 'An Act prescribing the mode ofniaintaining and defending 
 possessory actions for public lands in this State' (Laws of 
 1864r-65,' 343); 'and. Second. By^ actual possession or occu- 
 pation of sUch land.'^ In pursuing our inquiry as to the 
 plaintiff's rights we need not considef the effect of a compli- 
 ance with the 'desert land law, because he claims no rights 
 under that. 
 
 At the trial plaintiff offered, and the court admitted in ev- 
 idence, two certificates of survey, known as the Hall & Simp- 
 son survey, made April 29, 1864, and the Mitchell & Fuller 
 BUrviey,' made on the preceding day, which covered the land 
 occupied by defendants' ditch. They were made under the 
 tenth and thirteenth sections of the statute of 1861, 267, 
 entitled "An Act to regulate surveyors and surveying," 
 -which sections were repealed ' March 9, 1865. (Stat. 1864- 
 65, 344.) 
 
 'The certificate to the Hall & Simpson survey was made 
 June 10, 1864, but it was not recorded or filed for record 
 until November 22, 1865. The certificate to the Mitchell & 
 'Fuller survey was made June 19, 1864, but was not re- 
 corded, so far as the record shows, until April 9,1877; that 
 is to say, the only proof before us that it was ever recorded, 
 is a certificate of the county recorder, dated on the day last 
 named, to the effect that a certain paper maked "Exhibit 
 B"is <i true and correct copy of the description and plat of 
 
590 • Injunction'. 
 
 the survey of land made for Mitchell & Fuller as appears of 
 record * * * in his office. 
 
 Sections 10 and 13 of the statute of 1861, before referred 
 to, read as follows: 
 
 "Sec. 10. Each county surveyor shall, within thirty days 
 after completing any survey, make out a copy of the field 
 notes and plat, and transmit one to the surveyor-general, 
 and give a certificate of such survey to the person for whom 
 it was made; * * * and such certificate, provided the 
 same shall be recorded in the county record within thirty 
 days after the delivery of such certificate, shall be evidence 
 of the title of possession to the person or persons holding the 
 same. 
 
 " Sec. 13. Such survey so made, except in cases of mining 
 claims, shall be evidence of possession for one year from the 
 date of record of such survey." 
 
 Tlie court instructed -the jury as follows: "The presump- 
 tion of the law is, that the plat of survey of Mitchell & Ful- 
 ler's tract was filed within the time required by law, there 
 being no evidence to the contrary." 
 
 It will be noticed that sections 10 and 13 were repealed 
 before the Hall & Simpson survey was recorded, and there 
 is no evidence showing that the Mitchell & Fuller survey 
 was recorded before their repeal; also that the former was 
 not recorded until long after the sixty days next succeeding 
 the date of survey; and presuming the surveyor did his 
 duty, that it was not recorded until long after the thirty 
 days next succeeding the date of its delivery to Hall & 
 Simpson. And to say the least, there is no proof that the 
 Mitchell & Fuller sunvey was recorded within the time pre- 
 scribed by the statute. Section 10 made the doing of cer- 
 tain acts, therein stated, evidence of possession, but the re- 
 cording of the surveyor's certificate within thirty days from 
 the date of its deliverv, was made a condition precedent to 
 its becoming such evidence. The burden of proof was npon 
 plaintiff to show that they were recorded in time. The law 
 may presume that the surveyor did his official duty and de- 
 livered his field notes, plat and certificate in time; but it does 
 not presume, in the absence of proof showing such facts, that 
 either Hall & Simpson, or Mitchell & Fuller filed them for 
 
ElVEES V. BURBANK. " 591 
 
 record, or that they were recorded, within thirty days after 
 delivery to them. 
 
 The court also admitted in evidence a deed from Hall & 
 Simpson to Frank Hall, and and another from the latter to 
 plaintiff, conveying the land described in the Hall & Simp- 
 son survey. These deeds were offered " for the purpose of 
 showing? title in the plaintiff from Hall & Simpson, through 
 and under the survey offered, and to connect plaintiff with 
 said survey for the purpose of showing title under the same." 
 Both deeds were acknowledged before the Hall & Simpson 
 survey was recorded and long after the sixty days next suc- 
 ceeding the survey had expired. At the time the deeds were 
 acknowledged, as well as at the time of the trial," the survey 
 and the certificate thereto were not evidence of possession 
 under the statute, and consequently the deeds were not 
 admissible for the purposes stated. The deed from Mitchell 
 to plaintiff, offered for the same purpose, was, for the same 
 reason, inadmissible for snch purposes. Plaintiff testified 
 that until 1874 or 1875, there was but little of the land in 
 Smith's valley actually inclosed; that the farmers of the 
 valley herded the stock off of their land daring the growing 
 and harvesting seasons; that they had an understanding to 
 that effect, and that it was a custom among them; that they 
 also recognized and respected the boundaries of each other's 
 farm, regardless of the fact that they were not inclosed, and 
 regardless of the fact that such boundaries were not particu- 
 larly marked. The testimony jnst stated was admitted against 
 defendant's objection, and the jury were instructed " that in 
 determining the fact of possession they were entitled to 
 consider the character and location of the land, the acts of 
 the claimant, and the improvements made upon the land, 
 and any well known and recognized custom at the time pre- 
 vailing in Smith's vailey, and known to and acted on by the 
 parties, as to the manner of claiming and holding land by 
 possessory title merely, and as to the construction of fences 
 and marking of boundaries of land." 
 
 They were further instrncted that " if they believed from 
 the evidence that prior to 1875 it- was a universal custom, 
 well known and recognized among the residents of Smith's 
 valley, to claim and hold land by possessory right without 
 
592 Injunction. 
 
 inclosuro or fencing the same, and that defendants and plaint 
 iff knew of such cnstom and recognized it, and claimed 
 and held their lands under such icustom; and that plaintiff 
 occupied and ojairned the land in question under such ens 
 torn; and that afterward, and : about that time, the residentf 
 of said valley ! commenced' to Inclose and fence their lands; 
 and' about that time, and before defendants made any claim 
 to the land or ditch, the plaintiff commenced to inclose and 
 fence the land in dispute, and since then has distinctly com- 
 pleted marking the boundaries of said land, and has partly 
 inclosed? said land,- and has with reasonable diligence pros- 
 ecuted the work' of fencing and inclosing the same, then the 
 jury must find for the plaintiff. In deciding the question of 
 reasonable diligence, the jury are entitled to consider the 
 situation and character of the land and the ability and means 
 of plaintiff." 
 
 It was proper for the court to admit any testimony tend- 
 ing to show that it was unnecessary to inclose the land in 
 question; as, that in accordance with a custom universally 
 acquiesced in, stock was herded by the owners during the 
 growing and harvesting seasons: Courtney v. Turner, 12 
 Nev. 350. 
 
 But testimony, showing that the farmers of the valley recog- 
 nized and respected the boundaries of each other's ranches, 
 notwithstanding no boundaries were fixed or known and 
 although there were no inclosures, was inadmissible; and all 
 instructions were erroneous which informed the jury that 
 they might consider any well known and recognized cnstom, 
 known and acted on by the parties, as to the manner of claim- 
 ing and holding' land by possessory title. 
 
 Trespass is an action for injury to plaintiff 'b possession. 
 The possession necessary as to public lands may be actual or 
 constructive. Ifi it be the former, in order to recover, he 
 must show that he has performed such acts as are necessary 
 in order to subject the land to his dominion and control — such 
 acts as are essential to its beneficial enjoyment. 
 
 Constructive possession of such lands can be had only by 
 a compliance with the possessory act of this State. An 
 agreement or custom among the farmers of Smith's valley 
 prior to 1875,' that they would respect the boundaries 
 
ElVERS V. BUEBANK. 693 
 
 claimed by each, notwithstanding no boundaries were fixed 
 or inclosnres made, and that each might claim and hold by 
 possessory title without taking the steps required by law, 
 did not take the place of acts' requisite in order to constitute 
 constructive possession; nor did such agreement or custom 
 excuse the failure to perform what was necessary under the 
 law to constitute such possession. It was an effort to hold 
 public land by constructive possession, against the very terms 
 of the statute, which declares that " no person shall be entitled 
 to maintain any such action for possession of, or injury to, 
 any claim, unless he or she occupy the same, and shall liave 
 complied with the provisions of the third and fourth sections 
 of this act." Stat. 1864-5, 343. 
 
 Although plaintiff did not attempt to show a compliance 
 with the possessory act last referred to, he still urges that his 
 possession and title are ample to maintain this action against 
 defendants, for the following reasons: 1. Because plaintiff 
 resided upon the land, cultivated twenty acres in alfalfa, and 
 three acres as a garden; had a part actually inclosed with a 
 substantial fence — that is to say, the twenty-three acres just 
 mentioned, and held title of record to the whole, ^\hich ex- 
 tends his possession to tiie limits of his claim as defined by 
 his deeds. 2. Because until 1874- the land was claimed and 
 held under a general custom universally prevailing and rec- 
 ognized in the neighborhood, and after the custom ceased he 
 proceeded with reasonable diligence to inclose his land with 
 a substantial fence. 3. Because the land was sufficiently 
 inclosed, and the boundaries marked, to create a possessory 
 right. 
 
 We shall consider these three reasons in the order stated. 
 The first is not good for the reasons given in Wolfskill v. 
 Malajowich, 39 Cal. 280, and in Eureka M. Co. v. Way, 11 
 Nev. 182. 
 
 In answer to the second we shall. add nothing to what has 
 been said as to the effect of the custom or agreement between 
 the ranchmen. But if it should be admitted that until 1874 
 or 1875 such custom supplied the place of actual or con- 
 structive possession, still the testimony would not show that 
 subsequent to that date plaintiff either subjected the land 
 over which the ditch was constructed to his dominion and 
 VOL. VII.— 38 
 
594 Injunction. 
 
 control, or that he proceeded with reasonable diligence to do 
 so. Under this head we content onrselves with the state- 
 ment, that plaintiff did not have actnal possession at the time 
 of the alleged trespass, and shall defer an examination of the 
 testimony upon tlie point until we consider the third reason 
 above stated. It is necessary, however, to consider the claim 
 that he proceeded with reasonable diligence to subject the 
 land to his control. It being true that at the time of the 
 alleged trespass the land was not in the actual or constructive 
 possession of plaintiff, the burden of proof was upon him to 
 show that he had proceeded with reasonable diligence in an 
 effort to acquire such possession, and in the absence of such 
 proof, diligence can not be presumed. Upon this point 
 plaintiff testified as follows: " The fence on the south and west 
 sides of the Hall & Simpson tract was sold by me soon after 
 I bought it, in 1865; soon afterward the old house or cabin 
 was also taken down and hauled away, in 1865; no buildings 
 were ever afterward put upon the Hall & Simpson tract; the 
 land was never inclosed afterward until about two years ago. 
 I then began to inclose the remaining portion of the two 
 tracts; * * * I hauled some posts and began to set them 
 for the purpose of making a wire fence; I dug the post holes 
 along the south side of the ranch from the alfalfa field to the 
 southwest corner of the Hall & Simpson tract, and from said 
 corner northerly to a point intersecting Dobe Smith's ranch; 
 I set up some of the posts, but not all of them; did not set 
 any posts for a year or more prior to this controversy; about 
 the time when they were constructing the ditch I was setting 
 posts along the western boundary of my six hundred and 
 forty acresi to and across the course of the ditch; * * * 
 I have been fencing my land as fast as I could for the past 
 two years; I was not able to have any help, and had to do the 
 work myself; there were posts set up on my west line north of 
 where the defendants dug their ditch. Some of the posts had 
 been broken down since they were set two years ago; those that 
 had been broken down or displaced had not been replaced ; 
 there was probably a quarter of a mile on the west side, where 
 the posts had not been set up; the posts were on the ground; 
 they were hauled th6re two years ago and the post holes dug; 
 * * * no crop of any kind had been cultivated on the Hall 
 
KlVEES V. BUEBANK. 695 
 
 & Simpson tract since 1865, and no crop had been grown or 
 liarvested upon any of the land outside of the alfalfa field 
 and garden since 1871, except that I turned some water 
 out of my ditch on the land to make the wild grass grow up- 
 on it; I also sowed some timothy seed on tlie land among the 
 sagebrush, so as to fit the land for grazing purposes; other peo- 
 ple's cattle, as well as my own, grazed upon the land, when 
 there were any in the valley; it was too much trouble and 
 would not pay. to herd them off; * * * there were several 
 reasons why I did not cultivate the whole of the six hundred 
 and forty .acres; I did not liave water enough; I was too poor 
 to hire help to grub out the brush, inclose the land and put 
 in crops; I found it necessary to hire out sometimes in order 
 to make a living for myself and family; I have a wife and one 
 child; * * in 1876 I farmed in Mason's valle}', in this 
 county; no one worked on my place except what my wife did; 
 she resided on the place in Smith's valley during my absence, 
 and worked the garden and tended to the alfalfa field." 
 
 T. B. Smith testified for plaintiff, that " the latter had lived 
 on the Ki vers ranch since 1870 or 1871; that he had been 
 away part of the time working for wages; that he supposed 
 he did not fence his ranch because he was too poor." 
 
 Tiie above is all of the testimony of plaintiff, showing dili- 
 gence, subsequent to the time the post holes were dug, and a 
 . part ot the posts set, two years or more prior to the alleged 
 trespass. 
 
 Defendants' testimony accords with plaintiff 's. They tes- 
 tified that "after the placing of the posts two or three years 
 ago, Elvers did notliing more to reclaim the land outside of 
 tl\e field and garden, until this spring (1877), when he grubbed 
 out the sagebrush from eight or ten acres next west of the 
 field, and about seventy rods southerly from the ditch; the 
 posts have never been connected by any boards, wires or any- 
 thing else so as to make a fence. When we were digging the 
 ditch. Elvers set up a few posts on the west side of the six 
 hundred and forty acre tract— probably twenty in all." 
 
 We have stated all the testimony tending to show diligence; 
 and in our opinion, instead of showing that he proceeded with 
 reasonable industry to subject the land to his control, by the 
 prosecution of such work as was necessary to its complete en- 
 
596 Injunction. 
 
 joyment, it plainly shows an inexcusable want of diligent 
 labor. True, plaintiff testified that he inclosed the land as 
 rapidly as he was able; but he stated no single act or effort 
 of his in aid of such result, for a period of two years or more. 
 He did not even keep the posts standing that had been set. 
 He did not make an additional mark upon what he now claims 
 as his boundary line, during that long period of time. At 
 the trial he did not know where his boundaries were, except 
 from the records of the surveys, and he admitted that when 
 he set his posts he did not follow the lines of the surveys. In 
 1876 he left the land and cultivated another ranch in another 
 valley. He went to California during the two years, and was 
 absent about four months. It is said ■ that he was poor and 
 unable to inclose the land. If he was unable to employ help, 
 that fact would excuse him for not hiring, but it does not ex- 
 cuse him for not being diligent himself. If a man is poor, 
 he should claim no more of the unsurveyed public domain 
 than, within a reasonable time, he can subject to his domin- 
 ion; then, if he diligently pursues his work, the law will 
 protect him, although, if ejected, he may not be able to show 
 that he has secured an actual possession: Staininger v. An- 
 drews, 4 Nev. 70. 
 
 We now come to the third reason stated above in support 
 of the claim that plaintiff's possession was sufficient. 
 
 That an inclosure was necessary, subsequent to 1874, 
 whether the land was used for agricultural or grazing pur- 
 poses, is evident; and that in the absence of a proper fence it 
 was not subjected to the will and control of the plaintiff is 
 equally certain. As we have seen from plaintiff's testimony, 
 other people's cattle grazed upon the land whenever there 
 were any in the valley; and there is no proof that the custom 
 of herding oft the stock has existed for two years or more. 
 S. M. Burbank testified that " the land claimed by plaintiff, 
 for the last ten or twelve years had been used as a common 
 for grazing purposes, without any objection being interposed 
 tliat he ever heard of," and his testimony was not disputed. 
 
 We do not deem it necessary to follow the witnesses in 
 their description of the boundaries marked, the posts set, etc. 
 It was not claimed that tliere was an inclosure of any portion 
 of the land upon which the ditch was dug. On the south 
 
El VERS V. BURBASTK. 597 
 
 side of the two tracts, posts, two rods apart, were set in 1874 
 or 1875. On the west side post holes were dug the entire 
 distance; posts were set a part of the way, and were scattered 
 upon the ground throughout the remaining portion of that 
 side. On the west side manj' of the post lioles had been 
 filled by gravel, and for a long distance north of the ditch 
 there were few, if any, signs of a marked boundary of plaint- 
 iff's claim. From the northeast corner southerly there was 
 a distance of forty rods with no boundary line, except a ditch 
 belonging to defendants, while the next forty rods southerly 
 had no boundal-y but a -public road. Throughout the whole 
 eighty rods just mentioned, there was not a post hole, post, 
 01' fence of any character. 
 
 T. B. Smith, a witness for plaintiff, testified that plaintiff 
 had posts set up and post holesdug, and ditches, to mark the 
 boundaries; that the lines could be easily distinguished by 
 these marks. But upon cross-examination he stated that he 
 did not know the boundaries; that he had been over it very 
 little; never saw or looked for any monuments; had never 
 been around the six hundred and forty acres, and could not 
 say how far it was inclosed, except the field and garden; had 
 seen a few posts at the west end; did not know how far the 
 east end was marked by posts, monuments or fences other 
 than the willow fence around the garden and field; that the 
 land along the course of the ditch, though once cultivated, 
 was then overgrown with' sagebrush, grease wood and rabbit 
 blrush, and bore a strong resemblance to the outside lands; 
 that the brush was not quite as large, though much of it was 
 two feet high. 
 
 In my opinion the testimony would not have justified a 
 verdict for plaintiff had the ground been timber land and the 
 action been trespass for cuttins; and carrying away timber 
 -therefrom: Eureka- M. Co. v. Way, 11 Nev. 174. In such 
 a case, it is established that an occupation within boundaries 
 so clearly marked and defined as to notify strangers that the 
 land is taken up Or located is all that is necessary: McFar- 
 land V. Culber'tson, 2 ISTev. 282; Eureka M. Co. v. Way, 
 supra. In the last case the court says: " Without here en- 
 tering into the details of the testimony, it may be stated in 
 general terms that for more than a quarter of a mile on the 
 
598 Injunction. 
 
 south line, between the bluif of rocks and the summit of the 
 mountain, there are no blazed trees to designate the boundary, 
 and for a distance of one thousand two hundred and sixty 
 feet from the southwest corner, along the western line, over 
 a smooth, grassy plot, there is no monument, tree or anything 
 else to mark the line (p. 175). * * * That natural 
 boundaries, when taken in connection with artificial, are suffi- 
 cient to mark the boundaries of timber land, will not be dis- 
 puted; but the artificial boundaries must be made in such a 
 manner as to clearly mark and define the line, and must 
 connect with the natural boundaries in such a way that any 
 person going upon the land could, by following the marked 
 lines, tell the precise extent of the land located and claimed, 
 and the claimant must be an actual occupant within such 
 boundaries" (p. 1S2). And on page 176 it is said: "In the 
 absence of a perfect inclosure, it is certainly essential that the 
 boundary lines should be so clearly marked and defined that 
 the same could be readily traced, and the extent of the claim 
 easily known, and no stretch of the imagination could be so 
 extended as to autliorize any court to hold that the boundary 
 lines were so marked and defined around the land in ques- 
 tion. How could a stranger, crossing the smooth, grassy spot, 
 designate the boundary? There is no fence, no string of 
 brush or felied trees, no mark or monument for a distance of 
 a quarter of a mile. Almost the same condition of the 
 boundary is found on the south line, between the bluff of 
 rocks and the southwest corner. A stranger in entering 
 would discover no visible siifns of any designation of bound- 
 aries whatever. The law does not require speculation upon 
 these points. The acts necessary to clearly mark the bound- 
 aries must be done in order to notity strangers that the land 
 is located. Otherwise any person would have as much right 
 as the claimant to enter upon the land, cut the wood and tim- 
 ber thereon and take the same away." 
 
 But the land in this case is not timber land, and requires 
 more than a marking of the boundaries before it can be said 
 to be subjected to the dominion of plaintiff. For a period of 
 two years prior to the alleged trespass, it could have been 
 put to no exclusive, valuable use by plaintiff without inclosing 
 it. It is not pretended that he did have its exclusive use lor 
 
Blaisdell v. Stephens. 599 
 
 any purpose. It follows that plaintiff did not have posses- 
 sion of the land over which defendants du^ their ditch, and 
 consequently that he was not entitled to recover damages in 
 any sum. 
 
 The injunction is dissolved, and the judgment and orders 
 
 appealed from are reversed. „ 
 
 Meversed. 
 
 Blaisdell et al. v. Stephens et al. 
 
 (14 Nevada, 17. Supreme Court, 1879.) 
 
 'Flooding ditch— Defendants jointly enjoined thougli not jointly re- 
 sponsible for damag'es. The owners of a drain ditch recovered a 
 judgment for damages against the several owners of distinct parcels 
 of land, in an action for the wrongful flowing of waste water from such 
 land, to the injury of the ditch, and also obtained an injunction which 
 bound the defendants to so regulate the irrigation of their lands as not 
 materially to injure the drain ditch of plaintiffs below their respective 
 lands: Held, on appeal, that a motion for nonsuit ought to have been 
 sustained on the ground that where two or more parties act, each for 
 himself, in producing a result injurious to plaintiffs, they can not be 
 held jointly liable for the acts of each- other; but also: Held, that if the 
 plaintiffs would remit their judgment for damages, the decree ordering 
 an injunction should remain. 
 
 ^ Easem«nt to drain lands may not be abnsed. " The owner of upper 
 lands who has for more than five years enjoyed the undisputed privi- 
 lege of running the wastewaters used from artificial sources for the 
 purpose of irrigating his land," does not thereby acquire an easement by 
 prescription to run the same over the lower lands in such unreasonable 
 manner as to damage a drain ditch constructed on the lands below. 
 
 Appeal from the District Opurt of "Washoe County, Second 
 Judicial District. 
 
 R. M. Claeke, for appellants. 
 
 Thomas E. Haydon and Boakdman & Vaeian, for respond- 
 ents. 
 
 By the Court, Hawlet, J. 
 
 ' Chidester v. Cons. Ditch Co., 59 Cal. 197; Hillman v. Nemngton, 57 
 Cal. 56. 
 
 2 Woodruff Y. N. Bloowfield Co., 1 West C. E. 183; 18 Fed. 753; Hdbhs 
 V. Amador Co., 4 West C. R. 523. 
 
600 Injunction. 
 
 Tlie plaintiifs, as owners of a drain ditch constructed in 
 1876, brought this action to recover damages a!,'ain8t defend- 
 ants for wrongfully flowing waste water from their lands to 
 the injury of plaintiffs' ditch, and for an injunction to restrain 
 such wrongful flowing of waste water. At the close of plaint- 
 iffs' testimony the defendants moved for a nonsuit upon the 
 ground, among others, that it did not appear that the injury 
 complained of " was the result of the joint or concurrent act 
 of tlie defendants." Tiiis motion was overruled. The cause 
 was tried before a jury to whom special issues were submitted. 
 The jury answered the special issues, and also found a general 
 verdict in favor of the plaintiffs, assessing the dama_ge8 a1 
 flfty dollars. Both parties moved for judgment upon the 
 special issues found by the jury. The court gave judgment 
 in favor of the plaintiffs, and the defendants appeal. 
 
 From the issues found by the jury it appears that the 
 "waste water from the defendants' lands and irrigating 
 ditches" did flow into plaintiffs' drain ditch, and that the 
 waste water from the lands and irrigating ditches of Henry 
 Weston and Mary Wall also flowed into plaintiffs' drain 
 ditch. The waste water from the lands and ditches of the 
 defendants has flowed upon the land drained and intersected 
 by the drain ditch of plaintiffs ever since 1864. With the 
 exception of the eighth day of May, 1877, no more waste or 
 drainage water flowed from the lands and ditches of the defend- 
 ants than in previous years. The defendants "own, occupy 
 and irrigate separate and distinct tracts or parcels of land, 
 each in his own right." They have no drain ditch which they 
 use together in common. The defendant Sessions in 1876 
 constructed a drain ditch leading from his land to the Trnckee 
 river of sufficient capacity to carry, and it did carry, all the 
 waste water brought or used by him on his land with the ex- 
 ception of the eighth day of May, 1877. 
 
 The jury failed to find whether the defendants, or either 
 of them, used any more water upon their land than was 
 proper and necessary to irrigate the same, but did find that 
 each defendant used proper and reasonable methods of irriga- 
 tion. The plaintifl' Henry Stephens had dams across the 
 slough or channel, in which waste or surplus water from the 
 lands of defendants flowed, and turned- the water out upon 
 his lands to irrigate the same. The grantors of the plaintiff 
 
Blaisdell v. Stephens. 601 
 
 Henry Stephens appropriated, claimed and used the waste 
 water flowing from tiie lands of defendants for irrigating pur- 
 poses. The plaintiff Pine, upon the land of the plaintiff 
 Blaisdell, used the wasteor surplus water flowing from the 
 lands of Henry Stephens, for irrigating purposes. The waste 
 water flowing from the lands of defendants flowed upon the 
 lands of the plaintiff Henry Stephens, in a natural cliannel or 
 slough, and he turned the water out of said channel upon his 
 land. The waste water flowing from the lands of defendants, 
 after passing over the lands of the plaintiff Henry Stephens, 
 flowed into an artificial ditch constructed upon the lands of 
 the plaintiff Blaisdell, and thence into the drain ditch of the 
 plaintiffs. The plaintiffs' ditch was daniaged to the extent 
 of seventy-five dollars. . : ■ 
 
 The ju^y did not know how much it was damaged by the 
 water flowing from tiie lands of Mary Wall and Henry 
 Weston, but found that it was damaged fifty dollars by the 
 water flowing from the lands of defendants and twenty- 
 five dollars by the " waste water flowing from plaintiffs' 
 lands." 
 
 It does not appear from the evidence that the defendants 
 acted in concert, or that the act of either in any manner pro- 
 duced the act of the other. . 
 
 We are of opinion that the motion for a nonsuit ought to 
 have been sustained. 
 
 The general principle is well settled that where two or 
 more parties act, each for himself, in producing a result in- 
 jurious to plaintiff, they can not be held jointly liable for the 
 acts of each other: Ferguson v. Terry, 1 B. Mou. 96; Par- 
 tenheimer v. Van Order, 20 Barb. 479; Gtdlle v. Svjan, 19 
 Johns. 381 ; Bard (& Wenrioh v. Yohn, 26 Pa. St. 482; Little' 
 Schuylkill Navigation Railroad and Coal Company v. 
 Richards, 57 Id. 142. 
 
 The case last cited is certainly analogous to the case at bar. 
 There tlie suit was brought for damages to a dam tilled by 
 deposits of coal dirt from different mines on the stream above 
 tlie dam, and the plaintiflB ought to liold the defendant liable 
 for the whole damages caused by the deposits. Speakin:.'- of 
 the results that would follow if the defendant was held liable 
 for the acts of others, the Supreme Court say: "It is imma- 
 
602 Injunction. 
 
 terial what may be the nature of their several acts, or how 
 small their share in the ultimate injury. If, instead of coal 
 dirt, others were felling trees and suflering their tops and 
 branches to float down the stream, finally finding a lodgment 
 in tiie dam with the coal dirt, lie who threw in the coal dirt 
 and he who felled the trees would each be responsible for the 
 acts of the other. In the same manner separate trespassers 
 who should haul their rubbish upon a city lot, and throw it 
 upon the same pile, would each be liable for the whole, if the 
 final result be the only criterion of liability. But the fallacy 
 lies in the assnmption that the deposit of dirt by the stream 
 in the basin is the foundation of liability. It is the immedi- 
 ate cause of the injury, but the ground of action is the negli- 
 gent act above. The right of action arises upon the act of 
 throwing the dirt into the stream; this is the tort, while the 
 deposit below is only a consequence. The liability, therefore, 
 began above with the defendant's act upon his own land, and 
 this act was wholly separate and independent of all concert 
 with others. .His tort was several when it was committed, 
 and it is difiicnlt to see how it afterward became joint, be- 
 cause its consequences united with other consequences. The 
 union of consequences did [not increase his injury. If the 
 dirt were deposited mountain high by the stream, his dirt 
 filled only its o\<fn space, and it was made neither more nor 
 less by the accretions." In this case the rigiit of action 
 arises, if at all, upon the act of allowing the waste water to 
 run into the slough from the land of the defendants. This 
 is the tort. The damage to the drain ditch below is only a 
 consequence. The act of defendant Sessions, in allowing 
 the waste water to rnn from his land, was separate and inde- 
 •pendent from the act of defendant Stephens, in allowing the 
 waste water to run from his land, and neither of them could 
 he held liable in damages for the wrongful acts of the other. 
 The judgment of the district court is reversed and the 
 cause remanded for a new trial. 
 
 RESPONSE TO PETITION FOE EEHEAEING. 
 
 By the Court, Hawley, J. 
 
 A re-cxamination of all the testimony contained in the 
 
Blaisdell v. Stephens. 603 
 
 transcript strenjj;theiis the convictions expressed in the former 
 opinion, that "it does not appear from the evidence that the 
 defendants acted in concert, or that the act of either, in any 
 manner, produced the act of the other." This being true, it 
 follows, for the reasons stated in our former opinion, that the 
 action at law can not be sustained as against both defendants. 
 A rehearing was granted, principally upon the ground that — 
 conceding the correctness of the views expressed in the opin- 
 ion — it might not necessarily follow that the nonsuit should 
 be granted as against both defendants. The plaintiffs might 
 have the right to dismiss as to one of the parties and proceed 
 against the other. Tiiis question, however, has not been re- 
 lied upon by the respondents. 
 
 We are asked to decide the equitable rights of the re- 
 spective parties, and determine whether or not, upon the 
 facts disclosed in the record, the plainliffs are entitled to an 
 injunction. 
 
 Tlie respondents admit, as the authorities declare, that the 
 owner of an upper tract of land has an easement in tlie lower 
 tracts to the extent of the natural flow of water from the upper 
 to, and upon the lower tract of land. 
 
 It is unnecessary to discuss the important, delicate and in- 
 teresting questions that, under the improved methods of irri- 
 gation and improvement of agricultural lands, are liable to be 
 raised as to the general right of the owner of an upper tract 
 of land to flow the waste or surplus water used for irrigation 
 from artificial means upon the lower lands of his neighbors. 
 So far as the present case is concerned, it only presents the 
 single question, whether the owner of the upper land, who has 
 for more than five years enjoyed the undisturbed privilege of 
 running the waste waters used from artificial sources for the 
 purpose of irrigating his land, thereby acquires an easement 
 by prescription to run the same over the lower lands in such 
 unreasonable and unnatural quantities as to damage a drain 
 ditch recently ponstructed by parties owning land below him, 
 for the purpose of carrying off such surplus or waste water, as 
 well as the waste water used in irrigating their own land. 
 
 The jury found, as stated in the former opinion, that, with 
 the exception of the eighth of May, no more water flowed 
 from defendants' lands than in previous years, and although 
 
604 Injunction. 
 
 they failed affirmatively "to iind whether the defendants, or 
 either of them, used any more water upon their land than was 
 proper and necessary to irrigate the same," yet their other 
 findings would seem to imply such to be the fact. But, be 
 that as it may, the court, in its judgment and decree, did ex- 
 pressly find that, on the eighth of May, the defendants did 
 allow an " inordinate quantity" to flow down over plaintifls' 
 lands. There is ample testimony to sustain this finding. 
 
 Under the decree the defendants are permitted to irrigate 
 their lands by all reasonable use of the waters and by all con- 
 venient methods' or systems of irrigatidn, and are only bound 
 to so regulate the enjoyment of this right "as not to materi- 
 ally injure the drain ditch of plaintiffs below their respective 
 lands." 
 
 We are of opinion that upon the facts disclosed by the record 
 the plaintiffs are certainly entitled to tlie injunction as decreed 
 by the court. Upon a review of the questions involved in this 
 case we are also of the opinion that respondents should be 
 allowed, within fifteen days after the filing of the remittitur 
 herein, if they so desire, to remit the judgment for damages, 
 and if so remitted then the decree ordering an injunxjtion 
 should remain. Otherwise a new trial must be granted. 
 
 The judgment of the district court, in so far as it awards 
 damages against the defendants, is reversed, and the cause 
 remanded for such further proceedings as are indicated in 
 this opinion would be proper. 
 
 The costs of this appeal to be taxed against respondents. 
 
 'The Central Eailroad Company of New Jersey 
 ET al. v. The Standard Oil Company et al. 
 
 (33 New Jersey Equity, 127. Court of Chancery, 1880.) 
 
 Oil pipe line over railroad track— No injunction against nominal tres- 
 pass to aid a competing oil carrier. The Central Railroad Company 
 purchased the fee simple title to a tract of land in Bayonne. The 
 railroad track was laid across the land in a cut sixteen feet deep; the 
 city subsequently condemned a street across the cut, and a bridge 
 
 'S. C, 7 M. R. 628; United U. JR. v. Standard Co., 7 M. R. 625. 
 
Central R. R. Co. v. Standard Oil Co. 605 
 
 was built over it by the company, thougli paid for by the city. Sub- 
 sequently the city granted, by regolution. to the Standard Oil Com- 
 pany the right to lay pipes in the street. The oil company laid its pipes, 
 not only in the street, but alongside of the bridge, and on a level with 
 it. The railroad company applied for a preliminary injunction to pre- 
 vent resistance to the removal of the pipes along the bridge, which was 
 refused, because, 
 
 1. The pipes had been laid when the bill was filed. 
 
 2. The case presented did not show a threatened infliction of irrep- 
 arable injury. 
 
 3. The claim that the pipes were supported by the bridge, and there- 
 by imposed upon it an unwarranted servitude, is denied by the oil 
 company, and is, at most, a subject of dispute. i 
 
 4. The complainants have no claim to protection against lawful 
 competition in the transportation of oil. 
 
 5. The defendants do not appear to have been actuated by disregard 
 of the power of the court. 
 
 Bill for relief. On bill and answer and affidavits. Order to 
 show cause why injunction should not issue. 
 
 B. Williamson and B. Gummeee, for complainants. 
 
 R. GiLCHEiST and A. P. 'Whitehead, of New York, for de- 
 fendants. 
 
 Chancellor Eunton. 
 
 The Central Railroad Company of New Jersey became the 
 owner, by purchase, of a tract of land which it bought for the 
 purposes of its road and business, and over which its tracks 
 were laid through tlie city of Bayonne. When it bought the 
 land, it took title in fee. Streets had been, by due authority, laid 
 out over it by mapping. It built its road over it, and at the 
 place where Thirteenth street, as laid on the map, crossed it. 
 The road was constructed in a cut. The city subsequently 
 took by condemnation part of the land of the railroad com- 
 pany for that street. A bridge was necessary at the crossing 
 over the railroad, which at that place was about sixteen feet 
 below the grade of the street. The railroad company built 
 the bridge, but was allowed for the cost of it in the assess- 
 ment upon it'for the benefits of the street to its land not taken. 
 By its charter it was bound, as is now claimed in its behalf, 
 
606 Injunction-. 
 
 to build the bnd<?e. After the bridge was built, the Stand- 
 ard Oil Company, a foreign corporation, obtained permission 
 (s;ranted by resolution) from the city to lay pipes in the street. 
 The pipes were to be part of a line which it proposed to lay 
 for a conduit for oil from the Erie railroad, at Snake Hill, in 
 Jersey City, to the oil company's works at Constable's Hock 
 in Bayonne. It neither obtained nor asked for any permission, 
 either of the railroad company or of the receiver thereof, ap- 
 pointed by this court on proceedings in insolvency, who was 
 in possession of and operating the road under the order of 
 this court, and it had no authority from the legislature in the 
 premises; but claiming or acting on the assumption that the 
 bridge was part of the street, and neither having nor profess- 
 ing to have any authority except that derived from the munic- 
 ipal authorities of Bayonne, it laid pipes (six inches in di- 
 ameter) at and alongside of the bridge, but, as it insists, not 
 supporting them thereon or thereby, and when the bill was 
 filed it maintained, or was in the attitude of maintaining the 
 pipes there, by forcible resistance against the receiver of the 
 railroad company. The complainants, the railroad company 
 and the receiver, invoke the protection of this court against 
 this action of the oil company in laying and maintaining the 
 pipes, and to that end ask for a preliminary injunction. 
 They base their claim to this relief on the ground of irrep- 
 arable injury, insisting that the oil company had no lawful 
 authority to lay the pipes, because, as they urge, in the first 
 place, the city could give it no right to do so, and, in the 
 next place, if the city had the power, it could not give the 
 authority by resolution, but must do so by ordinance; and 
 further, that the oil company is unlawfully and by mere 
 usurpation imposing upon the bridge, which the railroad 
 company claims to own, or the place where the pipe is laid, 
 a servitude at once unauthorized, inconvenient and danger- 
 ous, and an unwarrantable invasion and usurpation of the 
 rights and property of the railroad company and that, too» 
 for the purpose of enabling the oil company to compete 
 with the railroad company in the exercise and enjoyment of 
 its franchise in the transportation of oil for tolls over its 
 road, or at least to deprive it of tolls which it would other- 
 wise get (and to which it has a right) by such trausportation. 
 
Central E. E. Co. v. StandIed Oil Co. 607 
 
 I 
 
 It is also urged that the action of the defendants in di^sina 
 through the abutments of the bridge, and laying the pipes 
 without permission of this court (in whose hands, as before- 
 mentioned, the railroad company's property and affairs were 
 and are), was a contempt of court, and ought to be character- 
 ized and dealt with accordingly. 
 
 The oil company on the other hand, insists that the munic- 
 ipal government had authority to empower it to lay the pipe 
 in the street, and it contends that the bridge is part of the 
 street, and in this connection it further claims that the city, 
 nuder its charter, by the condemnation proceedings, acquired 
 the fee of the land taken from the railroad company for the 
 etreet^ and not merely a right to use it for the purposes of a 
 highway. 
 
 The railroad company was, by its charter, when it built the 
 bridge, bound to " construct and keep in repair good and 
 sufficient bridges or passages over or under its railroads where 
 any public or other road shonld cross them, so that the pas- 
 sage of carriages, horses and cattle should not be impeded 
 thereby" (P. L. of 1847, p. 133, § 9), and the complainants in- 
 sist that the bridge was built by the railroad company under 
 its statutory obligation to construct and maintain it. But it 
 appears that, though built by it, it was, in fact, paid for by 
 tlie city, and the defendants claim that therefore it is to be 
 regarded as the property of the city, and, as such, subject to 
 its use as part of the street, for reasonable, lawful municipal 
 servitudes and uses. Tiiey also claim that the city, by the 
 condemnation, obtained a right to use the air space above the 
 railroad for such purposes. 
 
 The city, by its proceedings for opening the street, con- 
 demned land crossing the railroad to the full width of the 
 street. The street appears to be of the width of eighty feet, 
 of which forty -eight are devoted to travel by vehicles and the 
 rest to use as sidewalks. The bridge is of the width of fifty 
 feet. If the city is to be held to have acquired by condemna- 
 tion only the right to a convenient crossing for travel, obvi- 
 ously it must be held to have acquired nothing more than the 
 railroad company was, by its charter, bound to furnish. 
 
 The defendants, as before stated, insist that, by the con- 
 demnation, the city acquired a fee in the land condemned. 
 
608 Injunction. , 
 
 By the original oliarter, which was granted in 1869, (P. L. of 
 1869, p. 398), it was provided that on condemnation the land 
 should vest in the city, and by the supplement (approved 
 March 28, 1873,) to the act revising the charter, (P. L. of 
 1873, p. 469,) it was enacted that, on condemnation, the fee 
 simple should be vested in it, and the defendants claim that, 
 notwithstanding the proceedings for condemnation were 
 begun before the passage of the latter act, yet it, by relation 
 back, gave the city a fee in the land condemned. But apart 
 from the obvious question raised by the mere statement of 
 this claim, it is to be remarked that the claim to a fee in the 
 land in question is in direct contrarietj' to the adjudication 
 of the Supreme Court in W. J. Southern Ji. li. Co. v. Long 
 Branch Comnh'rs, 10 Vr. 28, in which it was held that a 
 municipal corporation under a condepination for a street 
 across a railroad track, acquires only a right of way; and ac- 
 cording to the doctrine of that case, the contrariety would still 
 exist, though it be conceded that the pi-ovision of the supple- 
 ment of 1873, before referred to, though posterior in date to 
 the beginning of. the proceedings therein, applies to the con- 
 demnation under consideration. 
 
 "Whether the city has the right to use the space above the 
 railroad for any other purpose than travel by means of the 
 bridge, is a question in dispute between the parties. 
 
 It is urged by the complainants, however, that the Supreme 
 Court has decided that a municipality can not impose on tlie 
 land taken for its streets any uses or servitudes except those 
 sanctioned by law or custom, and that therefore it is estab- 
 lished that the leave given to the oil company in this case, 
 even though it had been by ordinance instead of resolution, 
 was unauthorized. 
 
 But a still further question is raised: the revised charter 
 of the city (P. L. of 1872, p. 686) confers power (p. 704) on 
 the municipal authorities to regulate the manufacture and 
 keeping of gunpowder, petroleum, fireworks and all other 
 dangerous and combustible articles, and the defendants insist 
 that, under this power, the city has a right, with a view to 
 public protection, to authorize the transportation of petroleum 
 through the city by means of underground pipes, and, to that 
 end, to give the use of the streets, or parts of theui, for the 
 
Central R. R. Co. v. Standard Oil Co. 609 
 
 purpose. It is enough for the present purpose to say that a 
 question of construction is thus' presented. Tlie complain- 
 ant's asserted right, on which the claim to relief by injunction 
 is founded, is in dispute. 
 
 But if the city has neither any right, nor even any shadow 
 of right, under its charter, to authorize the laying of the pipes, 
 then the action of the defendants is unwarranted, and is a 
 trespass, and equity will not interfere by preliminary injunc- 
 tion, in case of trespass, except where irreparable injury is 
 threateued. It is established in this State that a preliminary 
 injunction will never be ordered unless from the pressure of 
 an urgent necessity and to prevent what, in equity, is re- 
 garded as irreparable damage: Citizens' Coach Co. v. Cam- 
 den Horse R..B. Co., 2 Stew. Eq. 299. In that case the 
 following language of Chancellor Williamson, the elder, is 
 quoted with approval: 
 
 "An injunction ought not to be allowed in all cases of tres- 
 pass, nor to protect persons in the enjoyment of every right. 
 The court always, to restrain a trespasser, expects a strong 
 case of destruction or irreparable mischief to be made out, or 
 that the trespass should have so long continued as to become 
 a nuisance. A perseverance in. committing acts of trespass is 
 not sufficient." 
 
 In the case Ciiisens Coach Co. v. Camden Horse R. R. 
 Co., the preliminary injunction complained of, the order for 
 which was reversed, was issued to restrain the coach company 
 from using the complainant's railroad tracks, in competition 
 with it in the business of carrying passengers, in the, exercise 
 of its franchise. Such injury was held by the appellate tri- 
 bunal not to be of a character to warrant interim interference. 
 
 This ease presents no condition of circumstances demanding, 
 by reason of the threatened infliction of irreparable injury, tlie 
 intervention of this court at this stage. The pipes had been laid 
 when the bill was filed. The allegation of danger from fire, 
 in view of the leakage of oil from the pipes and the highly 
 inflammable nature of the substance, is, met by proof that there 
 is no danger, and the offer to make all such appliances 'to pro- 
 tect thecomplainants against the possibility of injury from leak- 
 age of the pipes as this court may direct. It is suggested by 
 the complainants that the existence of tlie pipes will bean o'o- 
 voL. VII. — 39 
 
610 Injunction. 
 
 struction and impediment to raising the bridge (which it is said 
 is contemplated, and which they allege is necessary for the pro- 
 tection of the lives of brakemen on their freight cars), and per- 
 haps prevent it entirely. But in that view, suffering the pipes 
 to remain where they have been put, and permitting them to be 
 used, can not be regarded as an irreparable injury, for this 
 court can provide for that contingency, if need be, when oc- 
 casion requires. 
 
 The oil company insists that the pipes are not supported 
 by the bridge, and that if the bridge were removed they would 
 still stand in place. Whether they in anywise depend on the 
 bridge for support, is at most a subject of dispute. 
 
 But it is urged that the object of the laying of the pipes is to 
 deprive the complainants of part of their business, and so- to 
 diminish the value of tiieir franchise to transport goods for 
 tolls, inasmuch as the oil company intends, by means of the 
 pipes, to transport oil for itself, and may intend also to trans- 
 port it by this means for others. 
 
 The complainants have no claim to a preliminary injunc- 
 tion on this ground. In the first place, the case just cited. Citi- 
 zens Cocich Co. V. Camden Horse R. R. Co., would seem to 
 be conclusive authority on th^s point. And, in the next 
 place, they have no monopoly of transporting goods or pas- 
 sengers for tolls by all means whatever, and, of course, they 
 have no claim to protection against lawful competition. 
 
 It will not be out of place to remark, though my conclusion 
 in no wise rests upon it, that the oil company denies that it 
 intends to transport goods for others by means of tlie pipe, 
 but alleges that it intends to transport only its own goods there- 
 by, and that, most manifestly, can not be construed into an in- 
 vasion of any franchise of the complainants. 
 
 As to the imputed contempt, the defendants do not appear 
 to have been actuated by any disposition to contemn or dis- 
 regard the power or dignity of this conrt. 
 
 On the ground, then, that there is no necessity or ground 
 for interim interference, and without passing upon tlie dis- 
 puted questions, except as to the right of the complainants to 
 monopoly of transportation by all ways or means, I am of 
 opinion that the order to show cause shonld be discharged, 
 but under the circumstances, it will be without costs. 
 
Newton v. Nock. 611 
 
 Newton v. Nock. 
 
 (43 Law Times, N. S. 197. High Court of Justice, Chancery Division, 1880.) 
 
 Lease of brick fteld— ' Mandatory injunction to restore fence. Where 
 the lessee of a brick field, contrary to the covenants in his lease, caused 
 _ the fall of one of the fences boundingr the field, by excavating the clay 
 from under it: Held, that a mandatory injunction in a negative form 
 should be granted to compel the restoration of the fence to its former 
 condition. 
 
 Covenant to work to fullest extent. A covenant in a lease binding the 
 lessee to "get the demised clay to the fullest practicable extent con- 
 sistent with the means of sale of bricks and tiles to be made therefrom,'' 
 does not bind the lessee to go on working at a loss, even though a means 
 of sale, at an unremunerative rate, might have been found for bricks 
 made out of the demised day. 
 
 This was an action bronglit to enforce certain of the cov- 
 enants in a lease of a brick field. 
 
 By an indenture of lease dated the twenty -fifth of March, 
 1876, and made between the plaintiff of the one part and the 
 defendant of the other part, the plaintiff demised to the de- 
 fendant a certain piece of land called First Brick-kiln field, in 
 the county of Warwick, and also all clay lying in and under 
 the same, with full liberty to the defendant during the term 
 to get the clay in, under, or upon the said piece of land, and 
 make the same into bricks or tiles (with a reservation to the 
 plaintiff of timber, mines and minerals, with liberty to enter 
 and get them), to hold the piece of land for the term of four- 
 teen years from the date of the indenture, paying yearly the 
 several rents and royalties thereby severally reserved, viz., as 
 surface rent, £21 5s. by equal quarterly payments, and as a 
 fixed rent in respect of the clay thereby demised the yearly 
 rent of £30, during the first seven years of the term for 300,000 
 bricks or tiles collectively, whether manufactured or not, and 
 the yearly rent of £50 during the last seven years of the term 
 for 500,000 bricks or tiles collectively, whether manufactured 
 or not, payable quarterly, and over and above the said certain 
 yearly rents a royalty at the rate of 2s. for every 1,000 bricks 
 or tiles coUecti vely o ver and above the several q uan titles of bricks 
 or tiles previously mentioned, payable quarterly. And the de- 
 > Cole Co. V. Virginia Co., 7 M. R. 503, 516. 
 
612 Injunction. 
 
 fendant covenanted that he wonld pay the rents and royalties, 
 and would get the clay from sncli places and in such situa- 
 tions on the land, and work the face of the clay regularly to 
 such a depth and at such a level as the plaintiff shonld direct, 
 and would not permit any of tlie clay or other materials to be 
 carried off the premises, and would from time to time during 
 the term worij and get the demised clay to the fullest prac- 
 ticable extent consistent with tiie means of sale of bricks and 
 tiles to be made therefrom, and would use his best exertions 
 and endeavors to encourage and extend the sale of the same 
 bricks and tiles to be made as aforesaid; and further, that the 
 defendant would from time to time during the, term, in the 
 working and the getting of the demised clay, work and get 
 the same to the fullest practicable depth, and in a fair, skill- 
 ful and workmanlike manner, according to the most approved 
 rules, and as other brickyards of the same nature in the same 
 neighborhood usually were or ought to be worked, and fairly, 
 without unnecessary delay, fraud, spoil, waste, or deduction, 
 doing as little damage as miglit be to the surface of the said 
 land thereby demised, and would not for the purposes afore- 
 said take or use more of the surface of the land than should 
 be really necessary, nor willfully or knowingly do, commit, or 
 omit, or suffer to be done, committed or omitted, any act 
 matter, or thing, whereby the land should be damaged. And 
 the said indenture also contained certain other covenants by 
 the defendant with respect to keeping books of account and 
 other matters. 
 
 On the 13th June, 1879, the present action was com- 
 menced. 
 
 By his statement of claim the plaintiff alleged that the sum 
 of £233 08. 6d. was due in respect of rents and royalties and 
 unpaid. (This sum was, however, paid before the hearing.) 
 The plaintiff also alleged that, in breach of his covenants, 
 and contrary to the written directions of the plaintiff's agent 
 and in defiance of a written notice threatening an action for 
 an injunction, the defendant had gotten the clay from the 
 boundary or fence separating the demised premises from an 
 adjo^ining field lately purchased by the defendant, and by so 
 doing had broken down the fence or boundary, and made a 
 cutting between the demised premises and the said field, and 
 
Newton v. Nock. 613 
 
 had refused to replace the clay, restore the boundary, or block 
 up the cutting. The plaintiff also alleged that the defendant 
 had brought clay from his adjoining field throuj,^h the cutting 
 onto the demised premises, and there burnt and made the 
 same into bricks and tiles; also that, in breach of his cove- 
 nant, the defendant had neglected to work and get the 
 demised clay to the fullest practicable extent, or to encourage 
 or extend the sale of the articles to be made thereout, or to 
 work the same to the fullest practicable depth, and had been 
 and was then working and getting the clay upon his said 
 field in competition with and to the neglect of the demised 
 clay. Also that, in breach of his covenant, the defendant 
 had failed to forward to the plaintiff notices of the contents 
 of his kilns. 
 
 The plaintiff claimed, (1) £233 5s. 6d. for rents and royal- 
 ties, with interest from the date of the writ. (2) A man- 
 datory injunction compelling the defendant forthwith to re- 
 place the clay and to restore the fence or boundary and block 
 up the cutting. (3) An injunction to restrain the defend- 
 ant from bringing on the demised premises clay gotten by 
 him from his said field, and from burning or making the 
 same into bricks or tiles on the demised premises. (4) An 
 injunction to restrain the defendant from working or getting 
 the clay in his said field in competition with or to the neg- 
 lect of the demised clay. (5) A mandatory injunction com- 
 pelling the defendant to forward to the plaintiff notices of the 
 contents of the kilns. 
 
 This was the hearing of the action. 
 
 CooKSON, Q. C, and Kombe (W. Baebee, with them), for 
 the plaintiff. Irrespective of any express covenant there is 
 an implied covenant by a tenant not to remove boundaries or 
 destroy fences, for such acts amount to waste. But this case 
 does not depend solely on the general law, for there is an ex- 
 press covenant, and the plaintiff is entitled, not only to an 
 injunction to preve^it the further destruction of the fence, but 
 to an injunction in a mandatory form to compel what has 
 been removed to be replaced. The defendant has further 
 committed waste, and that in breach of his covenants, by 
 bringing foreign clay onto this field, and there making it^ 
 
614 Injunction. 
 
 into bricks. By liis covenant the defendant was bound to 
 get tiie demised clay to the fullest practi'cable extent, but in- 
 stead of doing so he has gotten no clay out of the plaintiff's 
 field, nor made any bricks out of clay there gotten since 
 March, 1879. On the contrary, he has used the field for 
 burning other clay into bricks. This is an injury to the 
 plaintiff, it matters not how small, and it is a violation of 
 the covenant which binds the defendant to work the plaint- 
 iff's clay without containing any exceptions in the .event of 
 working at a profit being impossible. Damages then at 
 least are due. We ask for interest on the £233 58. 6d. 
 They cited Zane v. Newdigate, 10 Yes. 192; Lord Courtown 
 V. Ward, 1 Sch. & Lef 8; Pratt v. Brett, 2 Madd. 62; Roch- 
 dale Canal Company v. King, 2 Sim. N. S. 78; Tipping v. 
 Eekergley, 2 K. & J. 264; Ooodson v. Richardson, 30 L. T. 
 Eep. N. S. 142; L. Rep. 9, Cli. 221; CooJce v. Chilcott, 34 L. 
 T. Eep. N. S. 207; L. Eep. 3 Ch. Div. 694; Bainbridge on 
 Mines, 4th Edit. 218. 
 
 NoETH, Q. C, and Beale, for the defendant. As to the 
 interest claimed, under 3 and 4 Will. 4, c. 42, s. 28, a claim 
 for interest is necessary and the statement of claim is not 
 noticed: Ward v. Eyre, 28 W. E. 712. 
 
 As to the mandatory injunction to compel the restoration 
 of the fence and of the clay under it, it may be that the fence 
 will have to be replaced, but this is not the time for it. In 
 case of breach of contract an injunction will, no doubt, be 
 granted, and not damages; but the issne of a mandatory in- 
 junction is a very different thing, and it is not the practice of 
 the court to grant injunctions of this description precipitately. 
 It is only in special cases that such injunctions are granted at 
 all; as, for instance, where, after notice, a man deliberately 
 builds in front of a house and blocks out the light: Lane-v. 
 Newdigate, {svp.); Cooke v. Chilcott, {sup.). 
 
 There may be cases in which, though the damage is small, 
 yet the injury is continuing, and an injunction will be grant- 
 ed, as in Clowes v. Staffordshire Potteries' Waterworks 
 Company, 27 L. T. Eep. N. S. 298, 521. L. Eep. 8 Ch. 125. 
 But this is not at all that case. The damage is trifling, and 
 damages should be given once for all. Jsenhurg v. East 
 
Newton v. Nock. 615 
 
 India Rouse Estate Company, 9 L. T. Kep. IT. S. 625 ■ 3 De 
 G. J. & S. 263, and Senior v. Fawson, L. Rep. 3 Eq. 330, 
 show that an injunction will not be granted where damages 
 are a conclusive and sufKcient remedy. Moreover, a mandatory 
 injunction must be applied for at the earliest possible mo. 
 ment, which was not the case here. As to the injunction 
 asked in respect of the alleged neglejet of the demised clay 
 and the working of other clay in competition, the real 
 question is, whether the defendant is or is not to be com- 
 pelled either to keep his machinery idle or to work the plaint- 
 iff's clay at a loss. The claim for an injunction has now been 
 abandoned and damages have been asked instead, but no 
 relief at all can be given. There is no obligation • on the 
 defendant to work the plaintiff's clay at all. It is impossible 
 for him to work it at a proiit, for he can only work clay on 
 which no royalty is payable at a profit of Is. per 1000, and 
 when a royalty of 2s. per 1000 has to be taken into account 
 there is a loss of Is. per 1000. The covenant on which this 
 claim is founded is an ingenious attempt at arrivino; at the 
 same result as was aimed at in Lord Ahliiger v. A'^hton, L. 
 Eep. IT Eq. 338, by a covenant whicli the Master of the 
 Eolls called " a most unreasonable and absurd covenant," and 
 to do what that learned judge there said could not be done. 
 In Wheatley v. Westminster Brymbo Coal Company, 22 L. 
 T. Eep. N. S. 7, L. Eep. 9. Eq. 538, Malins, V. C. held that 
 the defendants in that case could not be compelled to work the 
 mine so long as the minimum rent was paid; but here not only 
 the minimum rent has been paid, but a considerable sum in 
 addition. The meaning of the covenant really is, not to 
 compel the defendant to work at a loss, but to cause the work- 
 ing of the clay in the demised field to be carried on in the 
 ordinary way; and this is all that the defendant can be com- 
 pelled to do. JSTow that this clay can not be worked at a profit, 
 the defendant is entitled to desist from working it, and to di- 
 rect his attention only to the clay out of which a profit can 
 be made. 
 
 CooKsoN, Q, C. in reply. 
 
 Denman, J. 
 
016 Injunction. 
 
 The result at whicli I have arrived is that neitlier party 
 is wholly right in the contentious which he has raised. 
 T,he first question is of very sinall importance, namely, 
 whether the plaintiff is or is not entitled to interest on the 
 £233 58, 6d. for rents and royalties which the defendant 
 has paid after action broui^lit. The statnte 3 & 4 Will, i a. 
 43 s. 28, though it does not on the face of it apply to cases 
 where no jury lias been engaged, has nevertheless been always 
 acted on by courts of equity. The requirement of the statute 
 for the sums to be certain is satisfied here, for the exact 
 amount of the interest is mere matter of calculation, and id 
 oertum est quod eertum reddi potest. The defendant must 
 therefore pay the plaintiff the interest on the £233 5s. 6d. 
 The next is an ir.iportant question; whether what has been 
 done to the fence was an act in violation of the agreement, 
 and wiiether an injunction is to be granted in respect of this, 
 i. e., an injunction, really in the nature of a decree for specific 
 performance, compelling the defendant to observe the con- 
 tract, and restore the fence to its former condition. The result 
 of the evidence as to what has been done is to show that the 
 defendant has caused excavations to be made under the fence 
 by reason of which it has fallen down. And this was done 
 long after notice had been given by the plaintiff's agent that 
 the defendant was bound by his covenants not to act in this 
 manner. It was contrary to his covenants and to the law, and 
 was done after fair warning, so that tiie defendant has only 
 himself to thank for the consequences. The plaintiff is, then, 
 entitled to the injunction he seeks, subject only to the question 
 whether in point of form such relief can be granted. The 
 form of relief sought has been much discussed, and I am 
 satisfied that what is asked can be done, and that an injunction 
 can be granted to restrain the defendant from leaving things 
 as they are. The injunction will therefore go, and the result 
 will be to compel the defendant to restore the fence to its 
 former condition. The next point is as to the part of the 
 prayer which claims an injunction to restrain the defendant 
 from bringing foreign clay on to tlie demised premises and 
 there burning it into bricks. (His lordship considered this 
 point, and came to the conclusion that the fact of that having 
 been done was established, and that it was contrary to the 
 
Newton v. Nock. 617 
 
 covenant that the defendant " would not, for the purposes afore- 
 said, take or use more of the surface of the land than should be 
 really necessary, nor willfully or knowingly do, commit, or 
 omit, or suffer to be done, committed or omitted, any act, 
 matter, or thing whatsoever, by reason or means wliei-eof the 
 said demised laud should be damaged." His lordship held 
 that the defendant had violated that covenant for his own pur- 
 poses, and Jhat the plaintiff was entitled to an injunction to 
 restrain further violations.) Then I come to the fourth part 
 of the relief sought. That is very vague, and I hardly know 
 how to construe it, but it is not necessary to go into that, as 
 the plaintiff is willing to accept damages in lieu of injunction. 
 This question really turns upon the covenant that the defend- 
 ant " would get the demised clay to the fullest practicable 
 extent consistent with the means of sale of bricks and tiles to 
 be made therefrom." If the defendant could not have per- 
 formed that part of the covenant at all, because he covUd not 
 have got any clay at all consistently with the means of sale 
 of the bricks to be manufactured out of it, the question as to 
 competition becomes immaterial, for the plaintiff has sus- 
 tained no damage, if it be shown that no more could be done 
 in the manufacture and sale of bricks than has been. Now 
 in my opiuion that covenant does not compel the defendant to 
 work at a loss. On that point the case of Lord Abinger v. 
 Ashton was cited to me. That case is not, indeed, on all fours 
 with the case before me, but it is important as showing that 
 in a lease somewhat of this nature it has been held that the 
 intention was not to make a man go on working at a loss. 
 It may well be that this covenant was intended to give the 
 defendant, so long as he continued to pay the stipulated fixed 
 rents, a right not to do anything more, at all events if he could 
 not do anything more without suffering a loss. The evidence 
 shows that during the period of operation of the covenant the 
 weather was very bad, and that brickmaking at a royalty of 
 2s. a thousand could not be carried on at a profit in those 
 parts. On this part of the case I am very strongly of opinion 
 that no damage has been done to the plaintiff by working in 
 competition with him, and that the defendant was not bound 
 hand and foot to the plaintiff to go on working at a loss. 
 That part of the claim, therefore, fails. The result will be 
 
618 Injunction. 
 
 tliat-I shall declare interest on the 233Z. 5«. 6d., to be paya- 
 ble at 4 per cent., from the date of the writ; I shall declare 
 the fence to be the plaintiff's property, and restrain the defend- 
 ant from continning it as it is; and I shall restrain the defend- 
 ant from burning on the plaintiff's land clay not gotten there. 
 As to the other matters, I shall dismiss the action with costs 
 so far as asked by paragraplis 4 and 5 of the claim. I think 
 the most satisfactory arrangement will be to make tlie 
 defendant pay two thirds, and the plaintiff one third of the 
 general costs of the action. 
 
 Solicitors for the plaintiff, Claeke, Woodoook, and Eyland, 
 for L. P. KowLET, Birmingham. 
 
 Solicitors for the defendant, W. Pilchee, for Unett, Page, 
 and FiSHEE, Birmingham. 
 
 Stkelley v. Pearson. 
 
 (Law Reports, 15 Ch. Div. 113. H'gh Court of Justice, Chancery Division, 
 
 1880.) 
 
 ' Injunction to pi'event drowningof colliery. The court has power to enjoin 
 a party from discontinuing pumping at a colliery and prevent its being 
 drowned out, pending a case for specific performance of contract for 
 lease; but it will not exercise that power when the pumping has already 
 been a long time discontinued. 
 
 Usnal covenants. Independent of special custom, a clause in a lease al- 
 lowing the lessee to detehuine the lease when the mines demised are 
 incapable of being worked to a profit, is not a clause usuallv inserted. 
 
 Practice as to settling terms of lease. On reference to chambers, to set- 
 tle the terms of a lease, the court will, when convenient, make a declara- 
 tion as to the insertion of a particular clause with regard to which an 
 issue has been raised in the pleadings. 
 
 This was an action for the speciflc performance, by the de- 
 fendant, of an agreement to take a lease of a colliery from tlie 
 plaintiff. The plaintiff also claimed an injunction to restrain 
 the defendant from permitting the colliery to be drowned, or 
 other irreparable injnry to accrne thereto, by reason of the de- 
 fendant's default in performance of liis part of the agreement. 
 
 ' Ci-ompton V. Lea, 6 M. R. 179. 
 
Steelley v. Pearson. 619 
 
 The agreement in qnestion was dated the 6th of August, 
 1S73, and by it the plaintiff agreed to grant a lease to the 
 defendant of two seams of coal, called the Blackshale and 
 the Kilbnrn seams nnder the Oakerthorpe estate, in Derby- 
 shire, for tlie term of thirty -one years, and the defendant agreed 
 to accept the lease. It was provided that the lessee should 
 work the mines with due diligence, and that all provisions 
 and covenants usual in leases of collieries should be intro- 
 duced into the lease. Soon after the date of the agreement 
 the defendant was let into possession of the mines, and he con- 
 tinued to work them down to the 18th of April, 1879, when 
 he ceased to raise any coal out of the Blackshale seam, and on 
 the 29th of April he stopped pumping out the water. Ho 
 had a few days previously given notice to the plaintiff of his 
 intention to close the colliery and cease pumping. 
 
 The writ in the action was issued on th^ 20th of May, 1879, 
 and the plaintiff at once gave notice of motion on the 23d of 
 May for an injunction to restrain the defendant from ceasing 
 pumping, and fi'om permitting any other irreparable injury 
 to accrue to the mine by reason of default on the part of the 
 defendant in performing his obligations under the agreement, 
 or for such other order as might be proper. 
 
 The motion did not come on for hearing on the 23d of 
 May, and the hearing was afterward delayed in consequence 
 of the cross-examination of a witness and the motion was not 
 heard before the long vacation. The result was that the mine 
 was drowned. Ultimately, on the 7th of November, thf 
 motion was, by consent, ordered to stand to the trial of the 
 action. 
 
 This was the trial : . The principal questions argued were, 
 whether the costs of the motion ought to be costs in the action, 
 and whether the lease ought to contain a proviso enabling the 
 lessee to determine the lease in the event of its being impos- 
 sible to work the mines at a profit. Evidence was adduced 
 on both sides upon the question whether such a proviso was 
 a usual clause. 
 
 CooKSON-, Q. C, and Colt, for the plaintiff. 
 
 Even before the Judicature Act the court would have had 
 
620 Injunction. 
 
 jurisdiction to restrain the defendant from discontinuing the 
 pumping: Lane v. Wewdigate, 10 Ves. 192; Storerw. Great 
 Western Railvjwy Vompawy, 2. Y. & 0. Ch. 48; Goodson v, 
 Richardson, Law Eep. 9 Ch. 221; Nuneaton Local Board 
 V. General Sewage Company, Ibid. 20 Eq. 127; Cooke v. 
 Chilcott, 3 Ch. D. 694. At any rate there is now jurisdic- 
 tion to grant such an injunction: Judicature Act, 1873 s. 25, 
 sub-s. 8; Rules of Court, 1875, Order LII, rule 3; Beddow 
 V. Beddoio, 9 Ch. D. 89, 92; Redley v. Bates, 13 Ch. D. 
 498. The injunction ought to be granted until the execution 
 of the lease. The motion was a proper one to make, and the 
 plaiiitifl' ought to have the costs of it as costs in the action. 
 The question whether the lease ought to contain the proviso 
 insisted on by the defendant should be decided now, even 
 though it be referred to chambers to settle the terms of the 
 lease. The question whether such a proviso is usual has been 
 distinctly raised in the pleadings: Henderson v. Say, 3 
 Bro. C. C. 632; Blakesleyv. Whieldon, 1 Hare, 176. 
 
 NoETH, Q. C, and F. Thompson, for the defendant. 
 
 The court has no jurisdiction to grant such an injunction. 
 In RoUeston v. New, 4 K. & J. 640, it was assumed that 
 there was no such jurisdiction. Beddow v. Beddow is not an 
 authority that the principles on which the court acts in grant- 
 ing injunctions have been altered by the Judicature Act. 
 
 Day V. Brown/ri^g, 10 Ch. D. 294, shows that the princi- 
 ples remain the same. Coohe v. Chilcott is distinirnishable. 
 If the plaintiff would not have been entitled to an injunction 
 to compel us to go on pumping for the whole term of the lease, 
 he can not give the court jurisdiction merely by asking for 
 an injunction for a shorter time. In Lane v. Newdigate the 
 injunction was granted on an interlocutory motion. It would 
 be an entire novelty to nlake such an order at the trial. 
 
 [Fry, J. — I do not see my way now to restrain the defend- 
 ant from discontinuing the pumping until the execution of 
 the lease. The plaintiff consented to the motion standing 
 over to the trial, and thus practically abandoned it. But I 
 am disposed to thi.ik that the plaintiff is entitled to the costs 
 of the motion because it was properly made at the time with 
 a view to the iuterim preservation of the property.] 
 
Strelley v. Pearson-. 621 
 
 The object of a mining lease is the mutual profit of the 
 lessor and the lessee. The lessee ought not to be compelled 
 to go on working when no profit can be made- The evidence 
 shows that it is usual in mining leases to insert a clause en- 
 abling the lessee to determine the lease under such circum- 
 stances, and independently of any custom this would be rea- 
 sonable: Oowan V. Christie, Law Eep. 2 H. L. Sc. 273; Lord 
 AUnger v. Ashton, Ibid. 17 Eq. 358; Wheatley v. W6st7nin- 
 ster Brymbo Goal Company, Law Eep. 9 Eq. 538; Smith 
 V. Moms, 2 Bro. 0. C. 311. 
 
 Fey, J, 
 
 It is not now in dispute that the plaintiff is entitled to 
 judgment for the specific performance of the agreement, and 
 that will carry with it the genei-al costs of the action. Two 
 questions remain for decision. The first arises upon the mo- 
 tion. Now, what happened with regard to the motion is 
 this: Evidence was filed on the part of the plaintiff on the 22d 
 of May, 1879, and on the 27t]i, 28th and 29th of May aifidavits 
 were filed on the part of tlie defendant, and those affidavits set 
 up a twofold defense to the entire action. 
 
 The first defense was that no KiTbwm coal existed under 
 the Oakerthorpe estate, and the other was, that under the stip- 
 ulation in the agreement that the usual clauses should be 
 inserted in the lease, it would be necessary to insert a power 
 for the lessee to determine the lease in the event of the mines 
 being found incapable of being worked at a profit; that such 
 had been found to be the ease, and that accordingly the de. 
 fendant was in a position to put an end to the lease. These 
 were serious content-ions on the part of the defendant, and they 
 placed the plaintiff in this difficulty: If things were allowed 
 to go on as they were the mine would be drowned out, and 
 if the defendant was successful the plaintiff would find in the 
 result that he had returned upon his hands a drowned-ont 
 colliery. On the other hand, if the defendant, who had been 
 pumping down to April, was required by the court to go on 
 pumping until the hearing, he would only be required to do 
 that which he had been 'doing for some years past, and which 
 could be done at a small expense. The affidavits of the dc- 
 
622 Injunction. 
 
 fetidant were replied to by the plaintiflF on the 7th of June; 
 thereupon followed a cross-examination of the witnesses, and 
 in the result the cross-examination of the principal witness 
 was not completed till the beginning of the present year. 
 
 Things taking that turn, it wa« arranged between counsel 
 that the motion should stand over until the hearing, and that 
 was accordingly directed in November, 1879. 
 
 In order to determine whether the plaintiff is entitled to 
 the costs of that motion as part of the costs of the action, it 
 appears to me that I must decide whether, at the time when 
 the notice of motion was given, and looking at the nature of 
 the defenses set up, the motion ought to have been acceded to, 
 and would have been acceded to by the court if it had then 
 come on to be heard. In my judgment it would have been 
 acceded to. As I have already pointed out, the plaintiff was in 
 a position of considerable difficulty. He had no means him- 
 self of doing the pumping, because the colliery was in the 
 possession of the defendant. He was, in any event, seriously 
 interested in the continuing of the pumping, because if the 
 defendant should succeed the colliery would become the plaint- 
 iff's. Therefore, in the meantime, he was in that position of 
 difficulty. In my judgment, rule 3 of Order LII is addressed 
 to that very kind of difficulty. It provides that " it shall be 
 lawful for the court or a judge, upon the application of any 
 party to an action, and upon such terms as may seem just, 
 to make any order for the detention, preservation, or inspec- 
 tion of any property being the subject of such action." That 
 the drowning out of this colliery tended to its destruction can 
 hardly be doubted from the mere statement of the fact, but 
 the evidence upon the point is ample. It shows that the 
 effect of it was singularly injurious to the value of the coll- 
 iery. And, under all circumstances, having regard to the 
 contract between the parties, and the course of conduct of the 
 defendant — continuing the pumping down to April, 1879 — to 
 the nature of the defenses whicli he set up, the difficultv in 
 which the plaintiff was placed, and the very small injury 
 (if any) which would have resulted to the defendant by his 
 being required to continue the pumping, and the power of the 
 court to provide against his suffering any injury by requiring 
 the plaintiff to make some payment into court, or to under. 
 
Steelley V, Pearson. 623 
 
 take to make some payment in the event of the court ulti- 
 mately thinking that the order ought not to have been made- 
 considering all these things, I think that the order would 
 have been made upon the motion if it had come on for hear- 
 ing in the ordinary course shortly after the notice was given. 
 
 Therefore, according to my judgment, the costs of the 
 motion must be costs in the cause. 
 
 The other question which remains for determination is 
 whether it is usual for leases of collieries to contain a provis- 
 ion to the effect that, when the mines are incapable of being 
 worked to a profit, the lessee should be entitled to determine 
 the lease. The burden of proof, in my judgment, rests on 
 those who assert that such a clause is usual. 
 
 [His lordship referred to the evidence on the point.] 
 
 I can not, on the evidence, come to the conclusion that such 
 a clause is usual. On the contrary, the weight of evidence 
 seems to me very distinctly with the plaintiff, who denies the 
 defendant's proposition. Two other arguments have been 
 urged. In the first place it appears that such a clause 
 is not uncommon in Scotland and the observations of one 
 of the noble lords in Gowan v. Christie, Law Kep. 2 Sc. 
 App. 273, were referred to. But the practice in Scotland 
 and in England is very different in many respects in re- 
 gard to dealings in landed property and mines, and it is 
 impossible for jne to hold the one practice to be a prec- 
 edent for the other, or an authority binding upon me. The 
 other argument was derived from the observations of the 
 Master of the Uolls in Lord Abinger v. Ashlon, Law flep. 17 
 Eq. 358. But he was there dealing with the proper construc- 
 tion to be put upon a covenant to work mines, and he pointed 
 out that an unreasonable construction had been contended for, 
 which might require the lessee to work at a continuous and 
 regular loss. The difference between that and the present 
 argument is very plain. There the Master of the Eolls was 
 only showing that, during the continuance of the lease, the 
 lessee might not be under any obligation to do more than pay 
 the dead rent; he might be under no additional obligation to 
 work at an actual loss. Here the contention is that the lessee, 
 if he can not work at a profit, has a right to escape from the 
 payment of the dead rent which is reserved during the term. 
 
624 iNJUNCTIOIf. 
 
 That argument, as it appears to me, is resorted to simply 
 because no better can be adduced, and it is one whicli can not 
 possibly succeed in inducing iiie to hold that such a clause is 
 usual. The two things are plainly very different. Therefore, 
 weighing the whole argument, as well as the evidence before 
 me, I coirie to the conclusion that the defendant has not sup- 
 ported the contention which he has raised in his defense, and 
 that on the contrary the plaintiff is right in denying that it is 
 usutil to insert such a clause. 
 
 I shall therefore direct specific performance of the agree-, 
 ment, witii tlie usual reference to chambers to settle tlie lease 
 in, case the parties differ, except that I shall make a declaration 
 that the defendant is not entitled to require a clause to be in- 
 serted to the purport or effect that if the mine is not capable 
 of being; worked at a profit, the lessee shall be entitled to de- 
 termine the lease. I direct that the costs of the motion are 
 to be costs in the cause. I oui^ht to add this. When the 
 case was opened I was asked to grant an injunction dur- 
 ing the interval between the present time and the execution 
 of the lease. For the reason which I have already pointed 
 out, I can not accede to that view. It was agreed between 
 counsel as long ago as November last, that the motion should 
 stand over. The result was that the plaintiff did not any 
 further urie the pumping until the trial. To require the de- 
 fendant to begin again the pumping, which has ceased for more 
 than a year, would, in my opinion, be useless and undesirable, 
 and for that reason I do not accede to the application that the 
 injunction should be granted in the interval until the execur 
 tion of the lease. 
 
New Jersey Co. v. Standaed Oil Co. 625 
 
 'The United New Jersey Raileo ad and Canal 
 
 Company et al. v. The Standard Oil 
 
 Company et al. 
 
 (33 New Jersey Equity, 123. Court of Chancery, 1880.) 
 
 Oil pipe line in riyer, nnder draw bridge. The defendants, a foreign 
 corporation, without authority, laid a pipe for the transportation of oil, 
 in the channel of the Hacljensaok river, under the draw of the railroad 
 bridge of the complainants, upon lands belonging to the State. A 
 preliminary injunction to prevent the defendants from, intetfering with 
 complainants by laying pipe was denied because, 
 
 1. The pipe was laid when the bill was filed. 
 
 2. It was ISO laid as not to interfere with the use and maintenance 
 of the bridge. 
 
 3. The lands whereon the pipe is laid belong to the State, and it does 
 not complain of any purpresture. 
 
 4. The complainants have no monopoly for the transportation of oil 
 and besides, the defendants intend only to transport their own goods. 
 
 Bill for relief on bill and answer and affidavits, etc. 
 Motion for preliminary injunctions. 
 
 I. W. ScuTDDEE, for complainants. 
 
 R GiLCHEiST and A. P. Whitehead, of New Tork, for de- 
 fendants. 
 
 Chancellor Runyonj 
 
 The complainants, the United New Jersej' Railroad and 
 Canal Company and the Pennsylvania Railroad Company, 
 ask for a preliminary .injunction to restrain the defendants, 
 The Standard Oil Company, a foreign corporation, and cer- 
 tain persons who are acting for that company in the matter, 
 from "interfering, or in any way attempting to interfere with 
 the complainants, by laying any pipe, either on, or over, or 
 under the railroad tracks of the complainants on the draw of 
 their railroad bridge over the Hackensack river, or in any 
 manner, for the purpose of laying such pipes, interfering with 
 
 ' Central R. R. v. Standard Co., 7 M. R. 60i, 628. 
 VOL. VII. — to 
 
626 iNJUNCTIOIf. 
 
 or occupying the railroad tracks or other property of the com- 
 plainants, and from laying pipes in the Hackensack rivei 
 under or over the before mentioned bridge, or throngh, 
 along, nnder or over the draw therein, and from laying any 
 pipes on land nnder tide v^ater in that river, and from flow- 
 ing oil in the pipes already laid by them." 
 
 The grounds of the complaint are that the defendants have, 
 against the protest of the complainants, and by forcible per- 
 sistence, laid a six inch iron pipe in the channel of the Hack- 
 ensack river, under tlie draw of the railroad bridge of the 
 complainants, through which pipe the oil company intends 
 (and such is the purpose for which the pipe is laid) to convey 
 oil from the railroad of the New York, Lake Erie and West- 
 ern Railroad Company, at or near Snake Hill,»in Jersey City, 
 to the works of the oil contipany at Constables Hook, in the 
 city of Bayonne, and the complainants claim that tlie pipe, 
 though laid in the channel of the river, which is navigable 
 tide water there, is laid on land which they own, or to which 
 thej' have some claim of title, and also that the purpose is, in 
 view of their own rights, an unlawful one, viz., to carry oil, 
 which the complainants have a franchise to carry, for tolls; 
 in the exercise of which franchise they insist they ought to be 
 protected. 
 
 In the case presented, the complainants do not appear to be 
 entitled to the injunction. 
 
 In the first place, the pipe was already laid when the bill 
 was filed, and there is therefore no ground for an injunction 
 to restrain the defendants from laying it. It is laid on the 
 bottom of the river, in the channel, where the water is at least 
 twenty feet deep at low tide. It is capable of being moved 
 twenty feet or more laterq,lly each way, so as not to interfere 
 with the driving of any piles or building any abutments by the 
 complainants which might be requisite or proper for the 
 maintenance of the bridge. It can be raised or lowered, as oc- 
 casion may require, and will in no wise interfere with any filling 
 where it is laid. Though thecomplainants make positive claim 
 of title to the land whereon the pipe is laid, the claim is not 
 sustained, but, on the contrary, it appears that the land is the 
 property of the State. The act of 1869, (P. L. of 1869, p. 1026), 
 under which the complainants assert a right to it, authorizes the 
 
New Jeksey Co. v. Standard Oil Co. 627 
 
 United Companies to reclaim and to erect wharves and other 
 improvements in front of any lands then owned by, or in trust 
 for them, or either of them, or which were held by any company 
 in which they had the controlling interest, adjoining the Kil 
 yon KuU, or any other tide waters of this State, and to have, 
 hold, possess and enjoy the same, as owners thereof, when so 
 reclaimed and improved, provided snch improvement" should 
 be subject to the regulations, where applicable, of the riparian 
 commissioners as to the line of solid filling and pier lines; and 
 that they should pay into the treasury of the State, a desig- 
 nated sum of money for the privilege, and should file in the 
 secretary of state's ofiice, on or before a designated day, a map 
 and description of the lands under water in front of the upland 
 before referred "to. Neither in terms, nor by implication, did 
 this act give the companies any title or clairii to the land under 
 the channel of the river, but the title thereto still remained 
 in the State. The State is not here complaining of any pur- 
 presture, and the complainants show no special damage aris- 
 ingito them from the laying or continuance of the pipe in the 
 channel. They have no claim to an injunction on this ground. 
 The defendants do not appear to have been guilty of even a 
 trespass upon the property of the complainants. 
 
 But the complainants insist that they are entitled to the in- 
 junction on the ground of an unlawful interference with their 
 franchise to transport goods for tolls on their railroads. This 
 claim may be briefly disposed of. In the first place their 
 franchise obviously can not be construed into a monopoly of 
 transportation, so as to exclude all competition, by whatever 
 means, in tlie transportatidn of goods for hire; and in the 
 next place, it may be added (thought that not material in this 
 case), the object of the oil company appears to be the convey- 
 ance, by means of the pipe, of its own goods alone. 
 
 The oil company is, as before stated, a foreign corporation. 
 It appears to have acted, in laying the pipe in the river, en- 
 tirely without authority. Indeed, it does not pretend to have 
 had any. The case presented however does not, as before 
 shown, warrant the granting of a preliminary injunction. It 
 will be denied, but, under the circumstances, without costs. 
 
628 IiirjTjNCTiois-. 
 
 ^The Central Eailroad Company of New Jeesey 
 ET AL. V. The Standaed Oil Company et al. 
 
 (33 New -lersey Equity,. 372. Court of Chancery,. 1881.) 
 
 - Practice on appeal— Stay refused pending appeal from order denying 
 ii^'nnction. ComplainantB having applied tor a preliminary injunction 
 to prevent defendants, from interferingr with the. removal of an oil pipe 
 line, which crossed the complainanta' railroad track, obtaijied. an ad in- 
 terim stay prohibiting the defendants from using the pipe for the con- 
 veyance of oil. The injunction being refused the temporary stay was 
 a' so dissolved. The complainants appealed from the order refusing 
 the injunction, and pending the appeal moved to continue the adiM(Vim 
 stay: Held, that the question of continuing the order was in the discre- 
 tion of the court; t,hat it did not appear that any irrfiparable injury 
 would be done if the stay was not continued; and that the preliminary 
 injunction having been refused, it was also the duty of the chancellor to 
 refuse to. continue the stay, which had only been granted as a prudential 
 interference. 
 
 Motion to continue interim stay, pending determinatfon 
 of appeal. 
 
 B. Gtjmmeee, for the motion. 
 
 E. GiLOHEiST and A. P. Whitehead, of- New York, contra. 
 
 Chancellor Runyon. 
 
 On the filing of the bill in this cause an order to show cause 
 why an injunction should not be issued pursuant to the 
 prayer of the bill was granted, with an ad interim stay pro- 
 hibiting the defendants, the oil company, frorn^using the pipe 
 for the conveyance of oil. The bill complains that the de- 
 fendants have, without authority, invaded and usurped the 
 property and franchises of the complainant company by lay- 
 ing pipe for the conveyance of petroleum across the property 
 of the latter, and near and along side of a bridge across the 
 railroad, which the complainants insist was when the pipe 
 was laid, and still is, the property of the railroad company. 
 
 •S. C, ante, p. 634. 
 
 ^Ladii Bryan Co. v. Lady Bryan Co., 7 M. R. 478; Merced Co. v. Fre- 
 mont, 7 M. R. 309; Swift \. Sheppard, 1 West C. R. 133; See 7 M. R. 637, 
 note 22. 
 
Central R. R. Co. v. Stakdaed Oil Co. 629 
 
 Tlie pipe was laid in what is claimed by the defendants to be 
 the space taken by condemnation by the municipal authori- 
 ties of the city of Bayonne, for a public street, in which space 
 the U'idge is. The prayer of the bill is, that the defendants 
 may be enjoined from interfering with the complainants in 
 tlie removal of the pipe from the bridge and from over the 
 railroad tracks, and from interfering with the complainants 
 by laying, or for any purpose using, any pipe either over, 
 on or under the complainants' railroad tracks in Bayonne 
 or elsewhere, or in any manner, for the purpose of laying 
 the pipe, intertfering with or occupying the complainants' 
 railroad; and generally for other relief. The defendants 
 answered the bill, and the order to show cause was argued 
 on the pleadings and depositions and exhibits on each 
 side, and the questions in dispute between the litigants 
 were very fully and ably presented and discussed on both 
 sides, and after full and very deliberate consideration the 
 order was discharged. This, of course, dissolved the tem- 
 porary stay contained in it. Froni the order denying the 
 preliminary injunction the complainants have appealed,^ and 
 they now move for a continuance of the ad interim stay 
 during the appeal. Whether, on the dissolution of an in- 
 jiinctiun, the court will continue the prohibition pending an 
 appeal from the order, is in the discretion of the court. The 
 14Sth and 149th rules of court provide that an appeal from 
 an interlocutory order or decree shall not stay proceedings 
 without an order of this court, Or of the appellate tribunal, to 
 be granted on Such' terms as the court may see fit to impose. 
 And in case of appeal from a final decree, the- appeal, if taken 
 in ten days from the filing of the decree, shall operate as a 
 stay of execution, unless this court or the appellate court shall 
 otlierwi'se order; that is, if the appeal be taken within ten 
 days, no execution shall be issued without order, and if not 
 taken within that time, and execution shall have been issued, 
 the appeal will not stay it unless : so^ ordered. In either case, 
 the application, whether for execution or for a stay, is 
 addressed to the discretion of the court, and will be granted 
 ■only on good cause shown:: Schenohv. Conover, 2 Beas. 31. 
 "If the court," said the chancellor (Green) in the case just 
 cited, " in the exercise of this discretion, see that in case the 
 
630 iNjUNCTioiir. 
 
 decree should be reversed the party can not be set right 
 again, if the complainant proceeds to a sa!e under bis execu- 
 tion, there is a strong reason for a, stay of execution. If, on 
 the otlier hand, the stay of execution is unnecessary to protect 
 the rights of the appellant under the appeal and must operate 
 prejudicially to the complainant, the court ought not to in- 
 terfere." 
 
 In the English practice such applications are not, in general, 
 favored: Eden on Inj., 375; 2 Joyce on Inj., 1319, 1320. In 
 Monkhouse v. Corporation of Bedford. 17 Yes. 380, 382, 
 Lord Eldon said that the execution of the decree would not be- 
 stayed by chancery on appeal unless the court saw that if it 
 should turn out to be wrong, the party could not be set riglit 
 again. In Walford v. Walford, L. K. 3 Oh. 812, Lord 
 Justice Sir W. Page Wood, speaking on the subject, says the 
 correct course is to stay proceedings pending an appeal only 
 when the proceedings would cause irreparable injury to the 
 appellant, and where inconvenience and annoyance are not 
 enough to take away from a successful party the benefit of 
 his decree. In this State, in Van WalJcenburgh v. Rahway 
 Bank, 4 Hal. Ch. 725, where the application was to the court 
 of errors and appeals on an appeal from an order dissolving an 
 injunction, for an order in the nature of a temporary injunc- 
 tion retaining the parties and subject-matter of the contro- 
 versy in statu quo until the final hearing of the appeal, the 
 court said that the application was addressed to the sound dis- 
 cretion of the court, and that when an injunction has been dis- 
 solved by the chancellor, the appellate court, upon appeal 
 from that order, would usually revive the injunction, either 
 (l)'upon a pure injunction bill when the whole matter in 
 controversy is the continuance of the injunction, ajid where 
 consequently the whole object of the suit would be defeated 
 if the party were not temporarily restrained by the order of 
 the appellate tribunal; or (2) where it clearly appears that the 
 intervention of the power of the appellate tribunal is necessary 
 to prevent great and irreparable mischief to the rights of the 
 appellant. 
 
 In the case in hand, no material injury is to be apprehended 
 from ihe refusal to continue the injunction. The pipe had 
 been laid when the bill was filed. The stop order was merely 
 
Centkal R. R. Co. v. Standard Oil Co. 631 
 
 against the nse of the pipe for the conveyanee of oil until the 
 order to show canse could be heard. No injury from leak- 
 age in such use of the pipe is reasonably to be apprehended. 
 Nor is any to be anticipated from the presence of the pipe in 
 case the complainants should desire to raise the bridge. Tiie 
 pipe crosses the air space above the railroad at the same 
 height as the bridge, and until the railroad company or tlie 
 receiver shall wish to raise the bridge, it can not be in their 
 way. If it shall be fdund to be so when the bridge is to be 
 raised, this court can protect the railroad company's rights, 
 whatever they may be, in the premises. As to the alleged in- 
 fringement of fhe complainants' franeliise, it does not appear 
 to exist. It is urged, however, that the complainants insist 
 that the oil company has usurped its property, and to permit 
 tiie latter to continue to do so, is an irreparable injury. But 
 it is a question to be determined whether snch usurpation has, 
 in fact, taken place, and seeing that the pipe had been laid 
 when the bill was filed, and there is no danger to be appre- 
 hended from the use of it for tlie conveyance of oil, nor any 
 inconvenience from its presence in ease the complainants 
 should determine to raise the bridge, it is clear that no mate- 
 rial injury will arise from- the refusal to prevent, before the 
 final hearing, the oil company from using the pipe. There 
 is, in fact, no material injury to be fairly apprehended from 
 the refusal to enjoin in limine. 
 
 It is further urged, however, that such refusal will inflict 
 irreparable injury on the complainants, because it will render 
 relief more difficult, if not impossible, by reason of the fact 
 that under t4ie license which, as the complainants insist, the 
 refusal substantially g^ives, the oil company may expend 
 money in the enterprise of which the pipe is part, and tlius 
 create complications which equity will regard as obstacles to 
 the granting of the rights of the complainants, while snch ob- 
 stacles will be preven ted by a continuance of the stay. But as 
 was said in Uaston v. J}f. T. tfe Z. B. B. B. Co., 9 0. E. Gr. 
 49, 59, in answer to a like suggestion, the oil company will 
 receive no license or immunity from the refusal of the court 
 to interfere with it on the application for a preliminary in- 
 junction. After the bill has been filed, and it has been called 
 into court on the char,?e of invasion and usurpation of the 
 
632 iNJUNcnoN. 
 
 railroad company's property', if the oil company proceeds in 
 the same' dif ection, it must be at its peril. 
 
 In denying the interim interference asked for, the eonrt 
 has not decided that the oil company is in the right in the 
 matters complained of, except so far as the complainants' 
 claim is based on alleged interference with the franchise of 
 carrying goods for tolls. AH tliat this court has determined 
 is, that there is no ground to justify a preliminary injunction, 
 ai)«l that it will wait until the final hearing to see whether it 
 ouglit to issue its prohibitory mandate. I regard the lan- 
 guage of Lord Bkoitgiiam in Walbv/rn v. Jngilby, 1 M. & K. 
 61, 86, as apposite. The application was to stay, pending 
 appeal from it, the execution of an order for production of 
 books and documents. 
 
 " It has been said more than once, in this place, that siich 
 applications are better made, in the House of Lords. And in 
 one of the cases Lord Eldon treated such an application as a 
 misapprehension of the party's proper course, on the ground 
 that tlie chancellor's order refusing to stay miglit itself be 
 appealed from, and so oh without end. He added, as another 
 reason, that the court of appeal has the power of protecting 
 the party in the possession of the judgment against any vex- 
 atious delay consequent on the stay, by advancing the cause 
 where it has been decided fit to grant the application. * * 
 * 1 had every inclination, originally, to grant this applica- 
 tion; and if, on conferring with others whose experience gave 
 great weight to their opinions, I had found that any doubt 
 was entertained upon the matter of the order Or of this mo- 
 tion, I should probably, have stayed the execution. Eut even 
 tlien I am not sure that I should have done right; for cer- 
 tainly it would be giving encouragement to vexatious ap- 
 peals upon a large class of the business whicli occupies 
 these courts. Indeed, were this motion granted upon the al- 
 Ici^ation that refusing it will enable a party to do something 
 which can not be undone, or to obtain some advantage which 
 can never afterward be wrested from him, it is impossible to 
 conceive any case of an order for paying money out of court, 
 for dissolving an injunction, for appointing a receiver, in 
 which, the same ground existing much more plainly, the 
 same course must not be pursued; and thus the very cases 
 
Centeal E. E. Co, v. Standard Oil Co. 633 
 
 where it is of the most essential importance that speedy exe- 
 cution should take place, the very cases in which this court 
 possesses its peculiar jurisdiction because of that urgent neces- 
 sity, will be those in which the argument for suspending exe- 
 cution will be most powerful. In other and better words, in 
 the language of Lord ELD0N,.the arm of the court will indeed 
 be palsied." '^ 
 
 if the order complained of were an order dissolving an in- 
 junction, and the bill be regarded as a pure injunction bill, 
 t!ie stay would not be continued unless, in the language of the 
 court in Van WalJcenhurgh v. Rahway BankyXhe object;of 
 the suit would be unavoidably defeatedif thedefendant were 
 not immediately restrained, or it clearly appeared that the in? 
 tervention of the power of injunction- was necessary to pre- 
 vent great and irreparable mischief to, the right* of the com- 
 pkinants. I. do not see that the object: ©f the suit will be de- 
 feated, or irreparable injury be done to the complainants, if 
 the stay be not continued. , 
 
 . But in addition to ;the foregoing considerations, there is 
 another which is entirely conclusive in this case. The com- 
 plainants have never been in possession of any judgment of 
 this court in favor of their claim to interlocutory interference. 
 No injunction was granted to them. On the filing of tlieir 
 bill they obtained, not an injunction, but an order to show 
 cause wliy an injunction should not be issued. The interifn 
 stay before mentioned, prohibiting the oil company from con- 
 veying oil by the pipes, was indeed incorporated in tlie order; 
 but it was granted only to give the court opportunity, with- 
 out prejudice to the rights claimed by the complainants % 
 the delay necessary for the inquiry, to inquire, on notice, 
 wliether there ought to be any preliminary injunction or not, 
 to enable the. court to be careful and circumspect and regard- 
 ful of the rights of both parties in the use of the injunction 
 power. The fact of the granting of such a stay can give tlie 
 party obtaining it no claim wiiatever to a continuance of it 
 in ease of refusal to enjoin, and an .appeal from the order of 
 refusal; for it is granted only pending preliminary inquiry. 
 It is merely a prudential interference, limited to the time 
 wlien the court shall have reached a conclusion as to the pro- 
 priety of granting an interlocutory injunction. It appears to 
 
634 Injunction. 
 
 me too obvious to admit of any dispute or argument; that it 
 is the duty of the chancellor in such a case, where he con- 
 cludes on such inquiry that there should be no preliminary 
 injunction, to refuse to continue the stay. If the argument of 
 the complainants on this point is well founded, such a stay, 
 thougii followed by the clearest conviction on the part of the 
 court, after hearing the order to show cause, that an injunc- 
 tion ought not to be granted, mu6t be continued because of 
 the mere fact of the taking of an appeal by the complainants. 
 This would, in effect, be putting into the complainants' hands, 
 to a certain extent at least, the power of continuing the stay. 
 The true ground is, tliat the question whether the stay shall 
 be continued or not is addressed to the discretion of the 
 court, and the fact that the complainants have appealed from 
 the order discliarging it; gives them no right whatever to its 
 continuance, and in no way and to no extent whatever binds 
 the court to continue it. 
 
 In the case under consideration there is no ground for con- 
 tinuing the stay. The motion, therefore, will be denied with 
 costs. 
 
 Vanzandt, Trustee, v. The Argentine Mining Com- 
 pany. 
 
 (2 McCrary, 642. United States Circuit Court, District of Colorado, 1880.) 
 
 ' Proceedings in contempt are in their nature criminal, and the strict 
 rules of construction applicable to criminal proceedings are to govern 
 therein. 
 
 Complainant ousting defendant after order of court enjoining' defend- 
 ant's mining.' Where a complainant, out of possession, after obtaining 
 an injunction to restrain the working of a mine by a defendant in posses- 
 sion, thereupon proceeded to oust the defendant, he was compelled, by 
 order, to restore such possession to the defendant, and it was held further, 
 that where the object of the writ was to preserve the property pending 
 the litigation, the attempt by complainant to prevent the accomplishment 
 of such object was a gross abuse of the process of the court, and might 
 be considered as grounds for dissolving the writ, but that a violation of 
 
 ■As to notice and_proceedings in contempt, see Golden Gate Co. y. Su- 
 perior Court, 2 West C. R. 736; Srennan v. Gaston, 7 M. R. 426; Fremont 
 V. Merced Co., 9 Cal. 19. Post Mandamus. 
 
Vanzandt v. Aegentine Minin-g Uo. 635 
 
 tie spirit of the injunction by a complainant could not be considered as 
 a contempt of court. 
 
 Bill in equity, filed by complainant, alleging Lis ownership 
 of a certain silver mine in tins State, and siting other facts 
 upon which a preliminary injunction was granted, restraining 
 the defendant from taking ore from said mine, or from dis- 
 posing of any such ore pending the suit. Defendant was in 
 possession prior to the allowance of said injunction and there 
 was no order to disturb its possession. After the allowance 
 and service of the writ the complainant took possession of the 
 mine, ejecting the defendant's agent therefrom. Upon appli- 
 cation to the court, and proof of this latter fact, an order was 
 issued requiring complainant to restore the possession to de- 
 fendant, and to abstain from any interference with the same 
 pending further proceedings in the cause. Thereupon defend- 
 ant moved the court that the complainant be ordered to show 
 cause why he should not be punished for contempt in violat- 
 ing his own injunction. 
 
 Dixon & Eeed, for motion, 
 Thomas & Campbell, contra. 
 McCeart, Circuit Judge. 
 
 1. A proceeding for contempt is in the nature of a criminal 
 proceeding; and to be governed by the strict rules of construc- 
 tion which prevail in criminal cases. Its purpose is not to 
 afford a remedy to the party complaining, and who may have 
 been injured by the acts complained of; that remedy must be 
 sought in another way. Its purpose is to vindicate the 
 authority and dignity of the court: Eaight v. Zwc«a, 36 
 Wis. 355. 
 
 2. We can not hold that the complainant has subjected 
 himself to this summary criminal proceeding by taking ore 
 from the mine in dispute. Strictly speaking the writ of in- 
 junction did not restrain the complainant from so doing; its 
 only effect was to restrain the defendant and to subject its 
 agents to punishment in case of a violation of the order. 
 The injunction did not by its terms, or by its own force, for- 
 bid the complainant to interfere with the possession of the 
 mine, pending the suit, and therefore he can not be held to 
 
636 Injukction. 
 
 answer in this proceeding. It does not follow, however, that a 
 complainant, in such a case as the present, can with impuni- 
 ty do the acts, which at his instance the defendant has been 
 restrained from doing. Where, as in this case, the evident 
 purpose of the writ is to preserve the existing status of prop- 
 erty in litigation until a final adjudication can be had, it is a 
 gross abuse of the process of the court for the complainant 
 to disregard his own injunction, after having by means there- 
 of tied the hands of his adversary. And no doubt the court 
 has ample power to prevent or redress such abuse. In this 
 case the court did redress it by ordering the complainant to 
 restore the property to defendant and to abstain from any 
 further interference with the possession thereof, pending the 
 suit. If defendant had desired and asked a dissolution of 
 the injunction, the court might have granted it on the ground 
 that complainant was no longer entitled to the exercise of the 
 discretionary power of the court for his protection. See re- 
 marks of Lyon, J., on the point, in Haight v. Lucia, supra. 
 
 Motion denied. 
 
 Hallett, District Judge, concurs. 
 
 1. The first case in which injunction was allowed to stay trespass, as 
 distinguished from waste, is cited as Flamang's Case, not reported. See 
 Hanson v. Gardiner, 7 Vesey, 308; Mitchell v. Dors, 7 M. R. 2n0and note. 
 
 2. Injunction to prevent 'draining of oil well: Allison <& Evans' App., 
 77 Pa. St. 221; Post On.. 
 
 3. Injunctions are granted to prevent trespasses, as well as to stay waste, 
 where the mischief would be irreparable, and to prevent a multiplicity of 
 suits: Livingston v. LimngMon, 6 Johnson's Ch. 497. 
 
 4. Iqjonction allowed to prevent breaking of ditch: Derry v. Rots, 1 M. 
 R. 1. 
 
 5. Injunction restraining defendants from working coal mines, to injury 
 of plaintiff, pending determination of their rights at law: Dulee of Beau- 
 fort v. Morris, 6 Hare, Ch. 340, 
 
 6. Injunction granted to prevent mine owner from working so as to 
 endanger railway: North Eautern R. Co. y. Grassland, 2 Johns. & Hem. 
 565. 
 
 7. Lessees for lives renewable forever, restrained from raising limestone 
 for sale on the demised premises: Purcell v. Nash, 2 Jones, 116; 1 Jones, 
 625. 
 
 8. Injunction to prevent former tenant in common from working portion 
 of mine granted by partition to former co-teaaiHs: Maden v. Veevers, 5 
 Beav. 503, 
 
Notes. 637 
 
 9. Injunction to restrain the collection of notes given for purchase money, 
 as affected by judgment in suit upon the notes: Emma Co. v. Emma Co., 7 
 Fed. R. 401. 
 
 -' 10. Holder of patent for agricultural land restrained Ijrora asserting title 
 •to lode contained therein: Gold Hill Q. M. Co. v. Ish, 5 Oregon, 104; Po'i.t 
 Patent. 
 
 11. Injunction sought in favor of crops against miners: Ensminger v. 
 Mclntire, 23 Cal. 593; Post Tbhspass. 
 
 . ^ 12: Injunction sought upon the manner of extending quarry: Keeller v. 
 Green, 21 N. J. Eq. 27; Post Quat^rt. 
 
 ■' 13. Injunction sought to prevent stoppage of tailings: Nelson y. O'Neal, 
 4 M. R. 275. 
 
 14. Injunction to restrain diversion of water not granted when plaintiff 
 is not in condition to make use of it: Nevada Co. v. Kidd, 87 Cal. 282. 
 
 15. ' Injunction refused on account of previous ap.jlieation pending in the 
 ■Federal Court: New Jersey Zinc Co. v. Franklin Iron Co., 29 N. J. Eq. 
 422. Vice versa, Evans v. Smith, 3 West C. R. 21?; 21 Fed. 1. 
 
 16. ■ Injunction to prevent, on the ground of acquiescence, a party injured 
 by copper works fromenfoijoing a judgment recovered by him for damages 
 at law, refused, with costs: Bankart v. Houghton, 'il Beav. 425; Post Nui- 
 sance. 
 
 17. Injunction to restrain tenant for life of coal mines from opening new 
 pits refused: Clavering v. Clavering, 2 P. Williams, 389- Post Tenant for 
 Life. 
 
 ' 18. Injunction pending suit to enforce specific performance refused: 
 Gbiger v. Green, 4 Gill (Md.) 472; Post Specific Performance. 
 
 19. Preliminary injunction refused to restrain a violation of alleged oil 
 rights, the injury not appearing to be irreparable: French v. Brewer, 3 
 Wall., Jr. 346; Posi Oil. Refused against quarrying, on same grounds: 
 Hamilton v. Ebi, 4 Gill (Md.), 34. 
 
 20. No injunction io restrain a mere trespass where the injury is not ir- 
 reparable: Jerorhe v. Ross, 7 Johnson's Ch. 315. 
 
 21. Injunction to restrain proceeding with a shaft refused, where the 
 facts were doubtful and inspection impossible: McCurdy v. Noak, 17 L.' J. 
 Ch. 165. 
 
 22. No jurisdiction after bill dismissed to enjoin working mine, pend- 
 ing appeal: Eureka Consolidated M. Co. v. Richmond M. Co., 5 Saw. 121; 
 Post Jurisdiction. See 7 M. R. 628, note. 
 
 23. Injunction refused on account of Jaches: Birmingham Co. v. Lloyd, 
 18 Ves. 515; Post Laches. 
 
 24. Injunction refused to restrain tenants from working mines when 
 owner has stood by for a long time and allowed the working: Parrott v. 
 Palmer, 3 Mylne & K. 632. 
 
 25. Receiver preferable to injunction: Deep River Co. v. Fox, 1 M. R. 
 296; Parker v. Parker, 82 N. C. 165; Post Receiver; Falls v. McAfee, 
 7 M. R. 639. 
 
 26. Injunction not allowed to give affirmative relief: Menard v. Hood, 
 
 68 111. 121. 
 
 27. Injunction, prohibitoiT in form, but necessitating affirmative relief: 
 Mexborough v. Bower, 2 M. R. 91. 
 
638 Injunction. 
 
 28. Hardship produced by injunction, to what extent considered upon 
 the application for the writ: New Boston Co. v. Potlsville Co., 5 M. R. 
 117; Woodruff -n. North Bloomfield Co., 1 West C. E. 183. 
 
 29. Where insolvency is pressed as the grounds of injunctive relief, it 
 must be satisfactorily proved: Goodheart v. Baritan M. Co., 8 N. J. Eq. 73. 
 
 30. Where specific relief (to prevent mining) is prayed for with no prayer 
 for general relief, the complainant can not receive relief other than that 
 specifically prayed for: Laird v. Boyle, 2 Wis. 431. 
 
 31. Practice on bill and cross-bill for injunctions: West Va. 0. d; C. L. 
 Co. V. Vinal; Vinal v. West T'o. 0. & C. L. Co., 14 W. Va. 637. 
 
 32. Allegation of cutting timber not equivalent to allegation of irrepa- 
 rable damage: Western M. e^ M. Co. v. Va. C. Coal Co., 10 W. Va. 250. 
 
 33. In what case injunction may be allowed without notice : Thomas 
 Co. V. Allentown Co., 28 N. J. Eq. 77: Post Inspection. 
 
 34. Injunction to stay waste in digging mines will not be granted before 
 the coming in of the answer, or default in making answer: Lowther v. 
 Stamper, 8 Atkyns, 496. 
 
 35. The proper use of a quarry is not to be enjoined as waste in favor of 
 mortgagee: Vervalen v. Older, 8 N. J. Eq. 98; Post Mortgage. 
 
 36. Account, as incident to injunction: Ackerman v. Hartley, 1 M. R. 
 74. 
 
 37. After the right has been established at law where repetition is threat- 
 ened, it may be enjoined though damage not proved: Brown v. Ashley, 16. 
 Nev. 312. 
 
 38. Injunction against co-owner of water for excessive appropriation: 
 Lorens v. Jacobs, 2 West C. R. 722. 
 
 39. Injunction binds both agents and officers of corporation: Morton v. 
 Superior Court, 3 WestC. R. 488. 
 
 40. Allowed to prevent multiplicity of actions: Nichols v. Jones, 19 Fed. 
 855. 
 
 41. Party entitled /to absolute, can not be put oflF with conditional, injunc- 
 tion: Peo. V. Gold Run Co., 4 West C. R. 521. 
 
 42. Temporary vn:it remains under control of court for purposes of modi- 
 fication: Hohhs V. Amador Co., 4 West C. R. 523. 
 
 43^ The Hydraulic, or Debris, cases: Hohhs v. Amador Co., 4 WestC. 
 R. 523; Peo. v. Gold Run Co., Id. 521; Woodruff m. North Bloomfield Co., 
 1 Id. 183; 18 Fed. 753; 16 Fed. 25. 
 
 44. Special appearance not allowed to defendants resisting injunction: 
 Thornburgh v. Savage Co., 7 M^ R. 667. 
 
 See Injunction Bond. 
 
Falls v. McAfee. 639 
 
 'Falls et al. v. McAfee et al. 
 
 (2 Iredell's Law, 236. Supreme Court of North Carolina, 1842.) 
 
 Want of probable canse. In action upon a bond conditioned to indem- 
 nify the defendants in an injunction cause "for all damages they might 
 sustain by the wrongful suing out of an injunction" to stop their work- 
 ing of a certain gold mine, it is necessary for the plaintiffs to show a 
 want of probable cause for the suit brought for injunction; and also, in 
 a legal sense, malice in bringing it. 
 
 Malice negatived. Where the party who sued out the injunction really 
 and bona fide entertained the belief that he had just grounds for his 
 suit, the idea of malice is negatived, and the action upon the bond can 
 not be supported. 
 
 ' To stop the working of a mine by ii^jnnction is against public policy and 
 private justice where a receivership is practicable. 
 
 On appeal from the Superior Court of Lincoln County, 
 at Spring Terra, 1842; His Honor, Judge Peabson, presid- 
 ing. 
 
 The plaintiffs brought this action of debt upon a bond of 
 the defendants for $3,500, with a condition to indemnify the 
 plaintiffs from all damage sustained bytlie defendants' wrong- 
 fully suing out an injunction to stop them from working a 
 gold mine. The plaintiffs read in evidence the bond, also a 
 decree of the Supreme Court dissolving the injunction, and 
 tlie final decree dismissing the bill with costs. The plaintiffs 
 then proved that in consequence of the injunction they had 
 stopped working their gold mine from February, 1832, to 
 February, 1835, and by reason of thus lying idle, the pit had 
 caved in, tlie ditch filled up and the washers and other imple- 
 ments been much injured; they also offered evidence to show 
 that if they had not been stopped, they would have made 
 during the three years, with the ten hands then working, 
 $3,400 per annum, after deducting all expenses, which sums 
 they did not make until 1836-37-38, by reason of being so 
 stopped. 
 
 The plaintiffs' counsel then rested the case. The defend- 
 ants then proposed to offer evidence to show probable cause, 
 and to repel the allegation of malice. But the court inti- 
 
 ' For the original case in which the bond was given, see 6 M. R. 397. 
 2 7M. R. 637, note25. 
 
640 Injunction Bond. 
 
 mated tliat it was unnecessary, as the plaintiffs had not made 
 ont a case; for, in the opinion of the court, to sustain this ac- 
 tion it was necessary to show malice and a want of proba- 
 ble cause, the action being similar to an action on the case for 
 wrongfully suing a defendant and holding hira to bail, or an 
 action for wrongfully suing out a commission of bankruptcy, 
 or for wrongfully suing out an original attachment, and dif- 
 fered entirely from an action on a prosecution bond, or an 
 appeal bond, in which latter actions a failure to prosecute with 
 effect was sufficient. 
 
 The court was also of opinion that the decree dissolving 
 the injunction and the decree dismissing the bill did not amount 
 to prima facie evidence of a want of probable cause and of 
 malice. The plaintiffs' counsel then proposed to offer evidence 
 to show a want of probable canse and malice, and it was 
 agreed that the same evidence should be given as had been 
 given in the original case in equity, by which it was agreed 
 these facts were established; that one Carpenter contracted to 
 sell a tract of land to Falls, gave a bond for title, and took 
 notes for the purchase money; that Falls took possession of the 
 land, but was poor and unable to pay for it, and did not for 
 several years pay more than the ordinary rent; that a valuable 
 gold mine was discovered on the land, whereupon the defend- 
 ants went to Carpenter and induced him to sell the land to 
 them and execute to them a deed; that at the time of their 
 purchase they had notice of the claim of Falls, but believed 
 that, by securing the legal title, they could defeat Falls in a 
 bill for a specific performance, on account of his laches in 
 paying the purchase money, and his inability to pay but for 
 the discovery of the gold mine; that after obtaining the legal 
 title, they sued out the injunction to prevent Falls and Com- 
 pany from, working the mine until the equitable title was set- 
 tled. The court was of opinion that these facts were not suffi- 
 cient to show a want of probable cause; much less were they 
 sufficient to imply malice. It was then agreed by the counsel 
 to reserve these questions and let the jury pass upon the 
 question of damages. The court left that question to the 
 jury with instructions to find the amount of damages by rea- 
 son of the dilapidation of the works, and by. reason of tlie 
 plaintiffs not getting the several sums of gold as soon by three 
 
Falls v. McAfee. 641 
 
 years as they would have got it, but for the injunction, which 
 would be the interest for the time. The jury found for the 
 plaintiffs, subject to the questions reserved, and assessed the 
 damages to $2,094. Upon the questions reserved, the court 
 was of opinion with the defendants, and directed the verdict 
 to be set aside and a nonsuit entered, from which judgment 
 the plaintiffs appealed. 
 
 Badger, for the plaintiffs. 
 
 Alexander and Caldwell, for the defendants. 
 
 RUFFIN, C. J. 
 
 The counsel for the plaintiffs has not contended that the 
 superior court erred in its opinion as to the nature of this 
 action, but admitted that it can only t)e maintained by show- 
 ing a want of probable cause for the former suit, and also, in 
 a legal sense, malice in bringing it. That admission was 
 properly made in our opinion, as lias been already expressed 
 in Davis v. Gully, 2 Dev. & B. 360. But it was contended 
 that the court erred in holding tliat the proceedings and de- 
 crees in the former suit did not establish a want of probable 
 cause; and the counsel endeavored to maintain that proposi- 
 tion by minutely commenting on the pleadings and proofs in 
 the chancery suits, and also to infer from the want of prob- 
 able cause thus established, the existence of malice. We 
 can not, however, recognize any part of those proceedings 
 farther than tliey are incorporated into the record of this 
 cause, since we are restricted to this record as the ground of 
 our decision/ Now the parties have agreed here on the infer- 
 ences of fact, wliich are to be considered as established by the 
 evidence in the former causes, and among them is one which, 
 in our judgment, puts an end to the plaintiffs' case. 
 
 The case, after stating the purchase by Falls and notice of 
 it to the present defendants, proceeds to admit, on the part 
 of the plaintiffs, that at the time they bought from Carpenter 
 and filed their bill, these defendants " believed that by secur- 
 ing the legal title, they could defeat Falls in a bill for specific 
 performance, on account of his laclies in paying the purchase 
 money and his inability to pay it, but for tlie discovery of the 
 
 VOL. TII.— 41 
 
642 Injunction Bond. 
 
 gold mine." Whether that was a reasonable belief or rot, is 
 not material to the question we are now to consider. 
 
 We remember indeed that counsel gave us much trouble to 
 show that it was not well founded. But supposing tiiat belief 
 to be without a jnst foundation, we are nevetheless, upon the 
 admission quoted, to- take it that it was really and hona fide 
 entertained. Thus taking it, the ingredient of malice is abso- 
 lutely negatived, and the present defendants, instead of hav- 
 ing brought a groundless suit for the purpose of oppressing 
 the present plaintiff's and subjecting them to losses, appear 
 only to have honestly sought from the preventive justice of the 
 court a remedy against impending injury to their right or sup- 
 posed right, until that right could be investigated and estab- 
 lished. It has turned out indeed that those parties had not 
 the right they then believed they had, and that the present 
 plaintiffs have sustained a heavy loss from the operation of the 
 process awarded against them. 
 
 But much as that is to be regretted, it can not be repaired 
 in the present action as the defendants prosecuted that litiga- 
 tion from sound motives, just as much so as the present 
 plaintiffs are now prosecuting their suit. 
 
 The truth is, the party was not so much in fault for asking 
 the injunction, as the judge was in error in granting it. Tiie 
 case arose early after the business of mining began, and the 
 writ was improvidently awarded, without recollecting at the 
 time, that to stop the working of the mine was alike opposed 
 by the public policy and the private justice due to the party 
 that might be found ultimately to be the owner; and that it 
 would the rather promote all interests to appoint a receiver, 
 or take some other method for having the profits fully ac- 
 counted for. It is, indeed, surprising, that the present 
 plaintiffs had not, at the first opportunity, moved to discharge 
 the injunction by submitting to an order for a receiver. If 
 they had, they would doubtless have avoided most of their 
 losses; and therefore they are to attribute them very much to 
 their own negligence, and must submit to them. 
 
 Pee Cueiam. 
 
 Jxidgment affi/rmed. 
 
Gear v. Shaw. ' 643 
 
 Gear et al. v. Shaw et al. 
 
 (1 Pinney, 608. Supreme Court of Wisconsin, 1846.) 
 
 Cnutinaance, not the subject of exception. The ruling of the court upon 
 a petition supported by affidavit, for a continuance of a cause, upon the 
 ground that a suit was pending in chancery which would essentially 
 determine the rights of the parties, is a matter within the discretion of 
 the court, and is not the subject of exception or revision upon a writ of 
 error. 
 
 Injunction staying proceeding's at law. Although the district courts 
 have both equity and common law jurisdiction, yet the practice should 
 be the same as if their different powers were conferred upon separate 
 and distinct courts; and the proper method of procuring the postpone- 
 ment of .the trial of an action at law, upon the ground that a suit is 
 pending in chancery which will be decisive of the action at law, is by 
 injunction from the court of chancery to stay proceedings at law. 
 
 Pleading^. To a count of a declaration upon a bond, non est factum is the 
 appropriate plea, but nil debet is proper where the bond is set forth 
 merely as inducement. 
 
 Want of cettainty cured by verdict. Defects for want of certainty in 
 pleading are cured by the statute of jeofails, and where, to a declaration 
 on a bond, the defendants pleaded nil debet, and the verdict is that the 
 defendants owe the sum claimed and damages are assessed for its deten- 
 tion, the finding is in effect that the bond sued is the bond of the defend- 
 ants, and that its condition has been broken, and judgment will not be 
 arrested though the plea was not the proper one. 
 
 Execution of bond— Recital. Where G. and N. executed a bond for an in- 
 junction in which it is recited that G. had applied for the writ as the 
 agent of H., but the bond was signed and sealed by G., without other 
 reference'to H. : Held, that the description of himself as agent in the 
 body of the instrument did not exclude his persona! liability. 
 
 ' Action on bond— Nominal damages not to bar proper assessment. In 
 an action on a bond with a condition, there was a verdict for the penal 
 sum and one cent damages, and judgment was entered awarding execu- 
 tion for the entire sum : Held, erroneous, and that execution could not 
 be awarded until the damages had been assessed as provided by statute; 
 that a subsequent assessment of damages and award of execution pur- 
 suant to the statute cured the error; and that the assessment of nomi- 
 nal damages by the first jury could notbe considered as a determination 
 of tbe extent of the plaintiffs' claim. 
 
 Damages on dissolution of injunction— Sudden increase in product of 
 the mine. An injunction was granted to restrain parties from mining, 
 and, some time after its dissolution, a new discovery was made, and a 
 large quantity of ore raised from it. In assessing damages on the injunc- 
 tion bond. Held, proof that the use of the money for which the min- 
 
 ' Compare Belcher Co. v. Deferrari, 62 Cal. 160. 
 
644 Injunction Bond. 
 
 eral might have been sold was worth to the parties more than legal in- 
 terest, by way of enhancing the damages, should be rejected as ideal 
 and speculative; and so, too, as to the proof of the subsequent discovery 
 as tending to show what the, parties might have realized had they con- 
 tinued mining, and the injunction had not been granted. 
 
 Idem. Damages upon the dissolution of an injunction are to be esti- 
 mated with reference to the business of the party enjoined, and his 
 profits at the time of the service of the writ, and not upon conjecture 
 founded upon subsequent events not then known or contemplated. 
 
 ' Counsel fees, etc., as damages. Counsel fees and expenses of defending the 
 chancery suit are not a proper item of damages, to any greater extent 
 than they were necessarily incident to or caused by the injunction. 
 
 Demand need not be proved. In an action upon an injunction bond it is 
 not necessary for the plaintiff to prove a previous demand for his dam- 
 ages. 
 
 Oath of jury. In assessing damages on a bond with a condition, after a 
 findmg that there has been a breach, it is correct to swear the jury to 
 well and truly inquire of and assess the plaintiffs' damages. 
 
 Error to the District Court for Iowa Oounty. 
 
 Action of debt on an injunction bond. A motion was made 
 by the plaintiifs in error for a further and amended return, 
 the facts in relation to which are stated in the opinion of tlie 
 court denying the motion. Evidence was offered and re- 
 ceived upon the assessment of damages in tlie court below, to 
 sfhow that at the time the injunction was served the plaintiff:^, 
 against whom it had been granted, had nearly exhausted or dug 
 out all the mineral or lead ore from the discovery that tliey 
 had then made; that about five or six months after the disso- 
 lution of the injunction they made an entirely new discovery 
 of lead ore, at a distance of eighty or one hundred yards from 
 tlieir former discovery, on the same tract upon which they 
 were forbidden by the injiijiction to work, where a large quan- 
 tity of mineral was subsequently raised, and for being re- 
 strained from raising it during the pendency of the injunc- 
 tion they claimed damages. The testimony was received 
 against the objections of the defendant; all other facts neces- 
 sary to a correct understanding of the case are stated in the 
 opinion of the court. 
 
 Moses M. Strong and-T. P. Burnett, for plaintiffs in 
 error. 
 
 ' BolUnff V. Tate, 65 Ala. 417; 39 Am. Rep. 5, and note. 
 
Geak v. Shaw. 645 
 
 1. The district court erred in refusing to continue the 
 cause pending the suit in chancery: Doty. v. Strong, 1 Pin- 
 ney, 84; MoCa/i'ty v. Patton's ex'r, 3 J. J. Marsh, 263. 
 
 2. The jury in the first instance having found the issue 
 for the plaintiffs on the plea of nil debet, and assessed nomi- 
 nal damages, and having thus passed on the question of 
 dai^ni^es, it was not again a proper subject of inquiry. The 
 subsequent inquiry was not conformable to the issue and 
 should not be sustained: Stearns v. Barrett, 1 Mason, 
 173. 
 
 3. Counsel fees in the chanceiy suit were not properly a 
 part of the plaintiffs' damages: 3 Dallas, 306. 
 
 4. The evidence as to the discovery of mineral, subse- 
 quent to the dissolution of the injunction, was improperly re- 
 ceived, and the court erroneously refused to instruct the jury 
 that damages could not be recovered for more than seven per 
 cent, for the use of money: Peters' C. C, 95, 224. 
 
 F. J. DuKN, for defendant in error. 
 
 MiLLEE, J. 
 
 The plaintiffs in error suggest a diminution of the record 
 in this ease, in the following particular: That at the Septem- 
 ber term, 1843, of the District Court of Iowa county, the 
 plaintiffs in error made a motion to postpone the trial of the 
 cause until the determination of certain suits in chancery; 
 and in support of said motion, filed a petition and affidavit 
 tending to show that the determination of the suits in chan- 
 cery would have an important bearing upon, and essentially 
 determine the rights of the parties in this case, and that the 
 plaintiffs in error could not safely try this cause until the said 
 chancery suits were decided; which said petition, accompa- 
 nied with an affidavit, was filed in the district court, and is 
 not sent up with the record. And they now move for a rule 
 upon the clerk of said court to certify the same to this court. 
 
 The district court did not postpone the trial of this cause, 
 as prayed for in said petition, which is assigned for error 
 here. This motion for a rule upon the clerk to certify to this 
 court the petition above referred to, is opposed by the counsel 
 for the defendants in error. 
 
616 Injunction Bond. 
 
 Wlien the cause was regularly reached on the doctet, the 
 plaintiff was legally entitled to a trial unless legal reasons 
 were interposed to prevent it. This petition was addressed 
 to the discretion of the eonrt. The court was under no legal 
 obligation either to grant or refuse its prayer. It must rest 
 upon the same principle as any otiier motion for a continu- 
 ance, or for putting off the trial, which is not a subject for a 
 bill of exceptions or revision here. In the case of Doty v. 
 Strong, 1 Pinney, 84, the court remarked that an application 
 for a continuance is generally addressed to the discretion of 
 the court, and is not probably the subject of a writ of error; 
 and that cause was decided exclusively on the question of the 
 privilege of Doty from trial. 
 
 From the remarks of the court in the case of Hv/rst v. 
 Hurst, 3 Dallasv 512, there is no doubt but that the applica- 
 tion made in the district court to postpone the trial of the 
 cause was addressed to the discretion of the court, which 
 might be granted or refused without being the subject of re- 
 vision here. In that case a bill for a discovery and account 
 was pending against the plaintiff, which he had refused to 
 answer while he was pressing the trial, and under the cir- 
 cumstances of that case the court entertained the motion. 
 
 Although the same judge is clothed with both chancery and 
 common law jurisdiction, yet the practice and proceedings of 
 our courts should be the same as if these jurisdictions were 
 conferred upon separate and distinct courts. This is the only 
 way to prevent confusion and uncertainty in practice. A con- 
 trary course is not to be encouraged. An injnnction was the 
 proper and legal manner of requiring a postponement of the 
 trial in the district court. 
 
 For these reasons it is apparent that if the petition were 
 now attached to the record it could not be taken into consid- 
 eration by this court. And, therefore, this motion is over- 
 ruled. 
 
 Upon the merits of the case the following opinion was de- 
 livered. 
 
 MlLI-EE, J. 
 
 Thi? suit was brought in the district court for the county 
 
Geae v. Shaw. 647 
 
 of Iowa, by the dofendants in error against the plaintiffs in 
 error, upon a bond. In said bond, Charles Gear, as agent for 
 Thomas Y. How, and Abner JTichols, bound themselves in the 
 penalty of $2,000, with the condition: "That whereas the 
 said Charles Gear, as agent of Thomas Y. How, has prayed 
 for and obtained an injunction from, etc., enjoining and com- 
 manding the said obligees from digging, raising or removing 
 mineral from the southwest quarter of section No. 28, of 
 townsliip No. 1, of range No. 1, east, in the Wisconsin land 
 district; and also from doing or committing any further or 
 other waste in and upon the said premises until the court 
 shall make <»tlier order to the contrary, now, if the said Charles 
 Gear, as agent, shall pay or cause to be paid to the said obli- 
 gees sneh damages as they may sustain by reason of the issu- 
 ing of the said injunction, and also all such costs and dam- 
 ages as may be awarded against the said complainant in case 
 the said injunction siiall be dissolved," etc. The bond is exe- 
 cuted by Cliarles Gear, under his hand and seal, without re- 
 ferring to How, or using or signing his name thereto. 
 
 The declaration is upon the bond as a common bond for 
 the payment of money; and also upon the bond, with a con- 
 dition, assigning a breach. The defendants filed the plea of 
 nil debet 
 
 Upon this state of the pleadings the trial was had and a ver- 
 dict rendered, " that the defendants owe to the plaintiffs the 
 sum of $2,000, the penalty of the bond described in the plaint- 
 iffs' declaration in manner and form as the said plaintiffs de- 
 manded; and that they assessjhe plaintiffs' damages by reason 
 of the detention of the said debt over and above their costs 
 and charges, by them about their suit expended, at one cent." 
 
 The defendants then moved the court in arrest of judgment, 
 whicii said motion was overruled by the court, and the follow- 
 ing judgment entered^" That the said plaintiffs do have and re- 
 cover of the said defendants as well the sum of $2,000, their debt 
 aforesaid, as the sum of one cent, their damages by the jurors 
 of the jury aforesaid assessed, together with their costs and 
 charges by them about their said suit in this behalf expended, 
 and that "they have execution therefor." Afterward, at the 
 same term of the court, a second jury was called and sworn 
 well and truly to inquire of and assess the plaintiffs' damages. 
 
648 , Injunction Bond. 
 
 who assessed the daTnas;es to the plaintiffs for aud oh account 
 of the breach of the condition of the said bond, at the sura of 
 $748.97. Judgment was rendered for the said damages and 
 costs in the usual form. 
 
 Among the errors assigned here, are the following: 
 
 " The court erred in overruling the motion in arrest of 
 judgment and also in entering tlie judgment in the form en- 
 tered upon the issue, and in the award of execution." 
 
 To this declaration there was no appropriate plea, nor was 
 there an issue joined upon the record. It is a well settled 
 rule of pleading, that to a count or declaration upon a bond, 
 non est factum is the proper plea, and to a count or declara- 
 tion in debt, wherein a bond is set forth as the inducement, 
 the plea of nil debet is the issue. The law requires every issue 
 to be founded upon some certain point, that the parties may 
 come prepared with their evidence, aud not be taken by sur- 
 prise; and that the jury may not be misled by the introduc- 
 tion of various matters: Minor and others y. The Mechanics 
 Bank of Alexandria^ 1 Pet. 67. The rule as to certainty in 
 pleadings is formed for the benefit of the parties, and may be 
 waived by them in many cases, both by the common law and 
 by tlie statute of jeofails. And defects in pleading are usually 
 cured by verdict: Collum v. Andrews, 6 "Watts, 516; Cavene 
 V. McMichael, 8 Serg. &Rawle, 441; Simontonw. Winter, 5 
 Pet. 141; the verdict of the jury was, in effect, a finding that 
 the bond in suit is the bond of the defendants, and that the 
 condition thereof is broken. We therefore do not consider 
 that the district court erred in overruling the motion in ar- 
 rest of judgment. 
 
 In entering the judgment an error occurred, which no doubt 
 was accidental, in awarding execution for the sum of $2,000, 
 the penalty of the bond. By the statute, no execution could 
 be awarded or issued until the damages were assessed by the 
 court or a jury,' for which alone execution is allowed. 
 
 The plaintiffs in error assign for error, the refusal of the 
 district court to postpone the trial of the cause. 
 
 This court have heretofore decided that the allowance or dis- 
 allowance of amendments, or the refusal of the district court 
 to postpone the trial or continue the cause, being questions 
 within the discretion of the court, are not such judgments as 
 to be the subject of review upon writ of error. 
 
Gear v. Shaw. .649 
 
 The error assigned of the refusal of the court to instruct the 
 jury as in case of a nonsuit, has also been disposed of in this 
 court. The district court has no power to instruct or jorder a 
 compulsory nonsuit when testimony has been given in sup- 
 port of the issue. But if this motion was not intended for 
 a compulsory nonsuit, but for instruction upon the riglit of 
 tlie plaintift to recover upon the evidence, we think the court 
 were right in refusing it, upon the evidence. 
 
 The bond was signed and executed by Gear and Nicliols, 
 without regard or reference to How, or the alleged ageiicy in 
 thejbody of the instrument. The bond purports to be made 
 by Gear, and to be sealed by him, and not to be made and 
 sealed by his alleged principal. The description of himself 
 as agent does not, under such circumstances, exclude his per- 
 sonal responsibility: JyutzY. Linthicum, 8 Pet. 165; Hills w. 
 Bannister, 8 Cow. 31. 
 
 By the bill of exceptions it appears that on the assessment 
 of damages, the plaintiffs, in support of their claim of dam- 
 ages, offered to prove that they had paid money to their at- 
 torneys in the defense of the chancery suit, and that they had 
 spent time and expended money in the defense of said suit, 
 which said offer was objected to by the defendants, and the 
 objection was overruled by the court, which is assigned for 
 error. 
 
 The bond is conditioned for the payment of the damages by 
 reason of the injunction alone, and is not to be enlarged to 
 embrace all and every injury or damage, or expense incurred 
 iu and about the suit in chancery. We can only allow, ac- 
 cording to the literal condition of the bond. An injunction 
 is a high prerogative writ, executed and enforced in a sum- 
 mary manner. By service of the writ the party is required 
 immediately to withdraw and cease oyjerations; hence tlie 
 propriety in requiring a bond for the indemnity of the party 
 in such damages as he may sustain by reason thereof. Coun- 
 sel he must have in his defense of the suit, whether an in- 
 junction is issued or not. All a party could claim under 
 any circumstances, would be the fees and expenses incident 
 to the injunction. The injunction in this case was issued 
 upon a bill to stay waste during the pendency of a suit at 
 law, which would entitle the vlaintiffs to their costs in and 
 
650. Injunction Bond. 
 
 about the same. The court is of opinion that the attorneys', 
 fees paid are not a legal charge in the assessnaent of damages: 
 Arcamhel v. Wiseman, 3 Dallas, 306. In this ruling of the 
 court and the admission of the evidence there was error. 
 
 The plaintiffs offered to prove that during the time the in- 
 june ion was pending, the use of the money for which they 
 claimed they could have sold the mineral, had they not been 
 enjoined from raising it, would have been worth to thera 
 more than seven per cent. To this testimony the defendants' 
 counsel objected; the objection was overruled by the court, 
 and the testimony admitted. This is also assigned for error. 
 
 It is a general rule that interest is not allowed on unliqui- 
 dated damages: GiVpins v. Oonaequa, Peters 0. C, 86. 
 
 Here the testimony offered, was the value of the use of the 
 money for wliicli the plaintiffs claimed they could have sold 
 the mineral if they had not been enjoined from raising it, 
 which we consider merely ideal, and not the subject for com- 
 putation of interest for the enhancement of damages. 
 
 It appeared from the testimony that at the time of the ser- 
 vice of the injunction, in September, 1838, the plaintiffs were 
 mining for lead ore on the land described in the bond, and 
 that they had nearly exhausted or dug out all the mineral or 
 lead ore from the discovery that tliey had then made. That 
 about five or six months after the dissolution of the injunction 
 the plaintiffs mude an entirely new discovery of lead ore at 
 the distance of eighty or one hundred j'ards from their former 
 discovery, although it was on the same ground mentioned in 
 the writ of injunction, and all the mineral was raised on this 
 new discovery; for not being permitted to raise which, the 
 plaintiff's claimed damages. Under the statute, the party is 
 entitled to an execution for so much of the penal sum of the 
 bond as in equity and good conscience is found payable. 
 Tlie assessinetit of damages is the exercise of the equity 
 powers of the court, in relief of the defendant; and the party 
 is to have so much as he can show himself justly entitled to. 
 In order to entitle the plaintiffs to make proof on which "to 
 found a recovery, he should be required to show, at least, an 
 immediate connection between the digging he was engaged at 
 wlien the injunction was served, and the mineral afterward 
 raised; and that in consequence of the service of the injunc- 
 
Gear v. Shaw. 651 
 
 tion, he failed in raising it. Although it was on the same 
 land, yet it might not have entere.d into the contemplation of 
 the parties, before the injunction, to dig wliere the mineral 
 was found six months after its dissolution. The party is en- 
 ' titled to such damages as he may have reasonably sustained 
 by being deprived of the profits of the work he was engaged 
 at when the injunction was served. If a party make a dis- 
 covery six months afterward, not connected with engagements 
 or pursuits at the time, or if he make a speculation after- 
 ward not contemplated at the time, or if, being a merchant, 
 and enjoined from naerchandising or selling a particular stock 
 of goods, he, after the dissolution, enlarges his stock, these ad- 
 ditional speculations and profits would not be the measure of 
 damages. The damages are to be estimated with reference to 
 his business and profits at the time of the service of the writ, 
 not upon a supposition arising out of subsequent events not 
 known or contemplated before the writ was served. As pre- 
 sented by the record, we consider that there was error in the 
 admission of this evidence. 
 
 The error assigned upon the rejection of the patent to the 
 defendants was withdrawn at the argument. 
 
 The error assigned to the decision of the court, that a de- 
 mand of damages and costs was not necessary, is not well taken. 
 The bond is conditioned for the payment of damages which the 
 party became bound to jiay upon the dissolution of the in- 
 junction. The payment of damages was the contract of the 
 party which he bound himself to perform unequivocally. No 
 demand was necessary. He became liable to suit immediately 
 upon the dissolution of the injunction. Whatever costs CDuld 
 be legitimately claimed should properly be taxed by a proper 
 ofiicer. Such a practice would save time and trouble at the 
 trial, and enable the party to present his bill for the considera- 
 tion of the court with greater certainty. 
 
 Error is assigned for the manner in which the jury were 
 sworn upon the inquiry of damages, and that the verdict of 
 the jury does not conform to their oath, and for error in the 
 judgment. The jury were sworn well and truly to inquire of 
 and assess the plaintifi's' damages. This form of the oath 
 was correct. The jury on their oaths did say that they found 
 in "equity and good conscience the damages sustained by the 
 
652 Injunction Bond. 
 
 plaintiffs, for and on account of the breach of the condition of 
 the bond declared on by the said plaintiffs, to be the sum of 
 $748.97, and assessed the said plaintiffs' damages for the 
 breach aforesaid at the said snm of," etc. There is no legal 
 objection to the form used in this record. It is particular and 
 explicit enough, and perfectly intelligible. There is nothing 
 objectionable in the form of the judgment for these damages. 
 All that is required by the statute is that the court award ex- 
 ecution for the amount of damages assessed, which is done 
 here. 
 
 There was no error in calling a second jury to assess the 
 damages to the plaintiffs. Such damages were not assessed 
 by the first jury. The nominal damages of one cent, from the 
 nature of the findiug and of the inquiry at the time, could 
 not have been intended as settling and determining the extent 
 of the plaintiffs' claim. It seems to have been inserted more 
 as a matter of form than of substance. It is merely nominal 
 damages for the detention of the said debt, the penalty of the 
 bond, and not the assessment of the damages the plaintiffs 
 are equitably entitled to upon the condition of the bond. 
 
 By the statute, after it is ascertained that tlie condition of 
 the bond is broken, it is competent for the court to assess the 
 damages, unless either party shall move to have the assess- 
 ment made by a jury. The parties may, by consent, submit 
 the assessment to the jury sworn to try the issue, and if not, 
 the court or a subsequent jury must make the assessment. 
 
 The errors assigned upon different points of the charge are 
 answered, as far as necessary, in the foregoing investigation 
 of the points arising upon the evidence. 
 
 It is considered and adjudged by the court, that the judg- 
 ment of the District Court for Iowa county be and it is re- 
 versed with costs. , 
 
 Meversed. 
 
Morgan v. Negley. 653 
 Morgan v. Negley. 
 
 (53 Pennsylvania State, 153. Supreme Court, 1866.) 
 
 Measure of damages where building' tramway had been enjoined. 
 
 Morgan sold to Negley certain coal in place, with privilege to shift the 
 incline and railroad from the pita. Negley commenced the road, but at 
 Morgan's suit was restrained by injunction, which was afterward dis- 
 solved. ■- Negley, without constructing the road, sold to another, and 
 brought suit on the injunction bond. HM, that the difference between 
 the cost of constructing the road when the injunction was laid and 
 when it was dissolved, was speculative and consequential, and should 
 not have been submitted to the jury. 
 Idem. Had the property continued in the hands of Negley, and he had 
 finished the road at increased cost, it would have been a proper item of 
 damages. 
 
 Error to the Court of Common Pleas of Allegheny County. 
 
 This was an action of debt to March term, 1863, by Felix 
 C. ]!^egley against James B. Morgan, on an injunction bond, 
 in the penal sum of $2,500. 
 
 Morgan sold to !NegIey " certain coal, with incline and rail- 
 road." The agreement of sale authorized the shifting of " the 
 incline and railroad," in pursuance of which Negley com- 
 menced to build a railroad upon the surface of Morgan's land. 
 Morgan, denying that tiie agreement gave the right so to 
 build, filed a bill to restrain Negley, and the court awarded a 
 preliminary injunction,, upon Morgan entering into bond in 
 the penal sum of $2,500. The injunction was served Janu- 
 ary 11, 1861. On final hearing the court dismissed the bill, 
 and the decree was aflBrmed in the Supreme Court, January 
 6, 1863. 
 
 After the dissolution of the injunction Negley took no 
 steps toward building the road, and in March, 1863, sold his 
 purchase to Dicksbn & Co., who constructed a road on a new 
 plan, with a difl'erent route and grade. Negley having 
 brought suit on his injunction bond, on the trial, before Stek- 
 EETT, p. J., the plaintiff, under objection, was permitted, to 
 prove the difference between the cost of building the railroad 
 when the injunction was laid and when it was dissolved. The 
 
654 Injunction Bond. 
 
 defendant submitted this point: "As it appears from the evi- 
 dence that tlie plaintiff never constructed his proposed rail- 
 road, and that no road upon the plaintiff's plan has been built, 
 the jury, in their assessment of plaintiff's damages, are not 
 to include the supposed difference, to wit, $500, between the 
 cost of such road in the winter of 1861 and the cost of such 
 road after the injunction was raised." 
 
 On this point the court charged: "As to the second point, 
 yon have the testimony of John Dickson, who testifies in sub- 
 stance that * * it would cost $500 more to construct the 
 road immediately after the injunction was dissolved than it 
 would have done to construct it when the plaintiff was stopped 
 by the injunction. And, in order that we may distinguish 
 between the items of damage hereafter, if deemed necessary, 
 we request you to add to your general verdict the amount 
 which you may find under this second head, viz., the differ- 
 ence between the cost of constructing the road after the in- 
 junction was dissolved, say in October, 1862, and the cost 
 when the plaintiff was stopped, in January, 1861." 
 
 The verdict was for the plaintiff for " $2,347.16, which sum 
 includes $500 which we find as the difference between the 
 cost of constructing the road immediately after the injunction 
 was dissolved and the cost of constructing when the plaintiff 
 was enjoined." Judgment was entered on the verdict for 
 $2,347.16, and Morgan took a writ of error, assigning for 
 error the admission of the evidence and the part of the charge 
 above given, besides other assignments of error which were 
 not considered by the Supreme Court. 
 
 Hamilton & Achison, for plaintiff in error. 
 
 Marshall & Beown and A. M. Watson, for defendant in 
 error, cited jEoy v. Oronolle, 10 Casey, 9. 
 
 The opinion of the court was delivered November 2, 1865, 
 by Thompson, J. 
 
 The learned judge in the court' below properly referred the 
 jury to the condition of the injunction laid, for a breach of 
 which the suit being tried was brought, and charged that it 
 
MoKGAN V. Negley. 655 
 
 bound the de'endant to pay all euch damages as miglit have 
 been sustained by the plaintiff, by reason of the injunction 
 granted. That was a correct chart to go by. But in the practical 
 operation of ascertaining what these damages actually were, we 
 think there was error in one particular. "We agree that the 
 difference between wliat it cost to take out and run over the 
 old road, coal mined, after the new road might have been, 
 completed, had it not been for the injunction and the time 
 when it ceased to operate, was a proper standard of damages, 
 and so might any other injury to the plaintiff, the direct con- 
 sequence of the injunction, have been included. There is no 
 dispute about this. But we think the specific item of dam- 
 ages of $500 predicated of the testimony of John Dickson, of 
 the firm of Dickson, Stuart & Co., permitted to be considered 
 by the jury, was an error, both in the admission of the testi- 
 mony and in the charge upon it. These damages were not 
 direct, but speculative and consequential, and, as such, were 
 not covered by the bond, and not in contemplation of the 
 parties stipulating. What were the damages? To answer 
 this, we refer to the facts. It appears that the plaintiff did 
 noi incur any additional expense in constructing the new road 
 by reason of the increase of prices, for he did no work at all 
 after the injunction fell. He sold the entire property and 
 works, and the purchasers finished the road begun, but only 
 partly constructed, according to the plan of the plaintiff, at their 
 own expense. Now it was not shown that they would have 
 given in their purchase the difference between what it would 
 have cost when tliey bought, and what it could have been done 
 for at, or shortly after the injunction laid, nor that they would 
 have given any more for the property, the road being finished 
 as the plaintiff proposed doing, than what they did give. There 
 is no better ground for the claim on this footing, in view of 
 the testimony, than a peradventure that they might have 
 done so. If the property had remained in the hands of the 
 plaintiff', and he had finished the road at an increased cost, 
 owing to the general advance in the expense of materials and 
 labor, it undoubtedly would have been a matter for which he 
 might properly have claimed damages. It would then have 
 been clearly within the condition of the bond. But that 
 would be a different thing from this claim. This is a claim. 
 
656 Injunction Bond. 
 
 not for what the plaintiff's property had been depreciated or 
 injured, bnt for what it is supposed he might have gotten for 
 it if he had finished the road, to wit, the increased cost of con- 
 struction, when he sold, over what the actual cost would have 
 been if he had not been stopped ; in other words, the profit on 
 the work. But it was not shown, as already said, that this 
 circumstance lessened the selling price of his land, or would 
 have increased it; and, as such damage was not the necessary 
 result of the facts, is could not be inferred. We think, there- 
 fore, on these grounds the court erred in allowing it. But we 
 do not deem it necessary to send this case back for re-tfial ; 
 the finding of the jury being special as to the item of $500 and 
 judgment afterward entered including it, we will reverse the 
 judgment, with direction to the court below to enter judgment 
 less this amount. ' 
 
 Judgment reversed, and judgment to be entered below in 
 accordance with the foregoing. 
 
 Campbell et al. v. Metcalf et al. 
 
 (1 Montana, 378. Snpi-eme Court, 1871.) 
 
 Measure of damages. In a suit upon an injunction bond in aid of a writ 
 restraining defendants, who were three miners and were prevented 
 from working their placer claim for sixty days, the value of their labor, 
 proved to be $18 per day for the three men, allowed as proper dam- 
 
 Idem — Connsel fees. In suit upon an injunction bond given in support of 
 a writ to prevent the working of mining ground, fees paid to counsel 
 for services rendered in the trial of title are not recoverable. The re- 
 covery is restricted to the services of counsel in procuring the dissolu- 
 tion of the injtinction. 
 
 Appeal from the District Court of Mea,gher County, Third 
 District. 
 
 This action was tried in November, 1870, before Simes, J. 
 and the jury returned a verdict for Campbell and other 
 plaintiffs. Metcalf made a motion for a new trial, whicli was 
 overruled in May, 1871, by Wade, J. The facts ajipeur in 
 the opinion. 
 
Campbell v. Metcalf. 657 
 
 Chttmaseeo & Chadwiok, for appellants. 
 
 Shober & LowKT and W. E. Opllen, for: respondents, whc 
 were plaintifiFs below. 
 
 Knowi.es, J. 
 
 ,. l-hisis ai^! 'action on an injunction bond for damages 
 Dccasioned by the wrongful suin^ out of an injunction. 
 It appears from tlie recoiid; tliat one David P. Rankin had 
 brought an ajCtion; -to, recover the possession of a certain 
 mining claim against respondents. That as the said mining 
 claim was valuable onlj- for the precious metals therein con- 
 tained, and in order to prevent any judgment he might obtain 
 from being- v.alueless,he;had procured artemporary injunction 
 pending the action restraining respondents from working said 
 :3laim.>; The action was decided in fayor, of respondents, 
 rhey allege that by reason of this injunction they were com- 
 pelled to remain idle for a-.certain time, that they were dam- 
 aged by ; reason of the filling up of their drain and shaft 
 luring the time' they were restrained from working the. same, 
 md that they were compelled to pay $1,000 attorney fees to 
 procure the dissolution of said injunction, and that they were 
 jtherwise put to expense and trouble. For all of these causes 
 they allege. their damages to be $5,000. ^ 
 
 It appears from the testimony presented in the record that 
 respondents were idle about sixty days and that the value of the 
 work, of all three was $18 per day. This would amount to 
 Bl,080. It does not appear what amount of damages respond- 
 ents sustainedby reason of filling up their drain and shaft. It 
 ippears that $1,000 was paid by respondents for attorneys' 
 fees in the action which involved the title to the mining 
 ikim, but.it does not appear what portion, of tliis $1,000 was 
 paid for procuring the dissolution of the injunction. It ap- 
 pears they spent $100 in going to Helena to procure counsel 
 in.this action about the title to the mining claim, but what 
 proportion, if any, was spent in procuring counsel to dissolve 
 the; injunction is not shown. The jury returned a verdict for 
 11,250 damages, and j«dg-mont was entered against appellant 
 for this amount. 
 VOL. VII.— 42 
 
658 Injunction Bond. 
 
 The attorney fees and expenses in the action between re- 
 spondents and Kankin in determining the title to mining 
 ground were not properly chargeable as damages for the dis 
 solution of the injunction. If any portion of these attorney 
 fees and expenses were paid for that purpose, it devolved up- 
 on the respondents to show what portion. As they failed to 
 do this the jnry were not warranted in finding any damages 
 on account of them. Tie verdict of the jury is clearly erro 
 neous, then, to the extent of $170. 
 
 It does not appear to us that the jury were at all to blame 
 for this verdict, but the court. The instructions of the court 
 are such that without much doubt the jury were misled upon 
 this matter. The following are among the instructions given 
 by the court: 
 
 The latter portion of the first instruction reads thus: " In 
 estimating such damages you are to take into consideration a 
 reasonable attorneys' fee in procuring the dissolution of said 
 injunction." 
 
 The fifth: " Reasonable counsel fees and other expenses 
 necessarily incurred in the defense of the injunction suit, are 
 recoverable as damages in an action on the injunction bond." 
 
 Second instruction asked by appellants: 
 
 "That the only attorneys' fees that can, in a case of this 
 kind, be recovered as damages, are those which are confined to 
 the motion to dissolve the injunction and can not include those 
 for the trial of the question of title to the property on the 
 merits of the action." 
 
 This portion of the instruction was given and the following 
 refused : 
 
 " And unless the jury can separate the two branches from 
 the evidence they will not be justified in rendering any verdict 
 for damages on account of attorneys' fees." 
 
 Third instruction asked by appellants and refused by the 
 court: 
 
 " If the contract relative to attorneys' fees was to pay a sum 
 certain for the whole case, including the trial of the merits, 
 the motion to dissolve the injunction, and in all courts to 
 which the case might be appealed, the jury can not separate 
 the different species of service to be rendered and assess dam- 
 ages upon a portion of the same." 
 
Campbell v. Metcalf. 659 
 
 Fifth instruction asked by appellants and given: 
 
 "The jury in estimating damages, if they think from the 
 evidence that any have been sustained by plaintiffs on account 
 of attorneys' fees, can only take into consideration such as 
 were necessarily incurred in procuring the dissolution of the 
 injunction and do not include attorneys' fees for the trial of 
 the merits of the action or any subsequent proceedings, nor 
 can the plaintiffs recover for any more attorneys than were 
 actually necessary to procure the dissolution of the injunc- 
 tion." 
 
 Taking these instructions together and considering the 
 fact that there does not appear in the record one scintilla of 
 evidence that shows or seeks to show what proportion of 
 the $1,000 attorneys' fees or of the $100 expenses were prop- 
 erly charges as damages for the dissolution of the injunc- 
 tion, and the inevitable conclusion is forced upon us that the 
 court left to the jury, as though they were a committee of 
 experts, the novel' task of determining, without evidence or 
 guides but their own experience and judgments, what por- 
 tion of this $1,000 attorney fees and $100 expenses should 
 be apportioned as legitimate damages in procuring the dis- 
 solution of this injunction. This was a duty that might 
 well perplex and confound the most astute expert in such 
 matters. Surely it was not the proper province of any jury 
 to determine such a matter. As there was no evidence to 
 show how much money had been paid to procure the disso- 
 lution of this injunction it was improper for the court to 
 give any instructions which would lead the jury to consider 
 the matter. It was certainly error in the court to refuse, as 
 it did in the latter portion of instruction second and in in- 
 struction third asked by appellants, to instruct the jury, 
 that if the evidence did not show what proportion of these 
 attorney fees and expenses were properly chargeable as 
 damages for the procuring of the dissolution of the injunc- 
 tion, they could not find any damages for this cause. 
 
 It does not appear but that the $1,080 were proper dam- 
 ages in this case. 
 
 The judgment of this court is, therefore, tliat the ordef 
 overruling a motion for a new trial be reversed and the judg- 
 ment of the court below set aside, unless respondents shall 
 
660 Injunction Bond. 
 
 remit $170.of their judgment and pay th« costs of tliis ac 
 tioa since the rendition of the verdict by the jury. 
 
 . Judgment, affirmed m part and r&oemed- m part. 
 
 Steeetee Et al. impl. with Paul, v. The Makshaxl 
 Silver Mining Co. et al. 
 
 i(4 G61orado, 535. Sapi-'eme 06nrt, 1879.) 
 
 Practice— Defendants for whom no appearance is entered. . Where coun 
 sal in the first of a series of pleas filed, expressly designate the defendan*' 
 for whom they appear, the words, " the defendants" in the subsequent 
 ■ pleas must be Merred to the defendants nattied in the first plea and can 
 not fairly be held to be an appearance for' a defendant served,' but no' 
 named in the first plea. There being no appearance for such defendant 
 it is error to enter final jud<rment against all the defendants, without first 
 entering judgment by default a g3,inst the one for whom there is no ap- 
 pearance. 
 
 An entire judgment, if reversed as to one defendant, must be reversed as 
 to all. 
 
 Measure of damages— Expenses in protecting tlie mine. Money alleged 
 to have been paid in the eniplbyment of men to hold a mine, so as to 
 prevent it frdiii being'" jumped " daring the existence of an injunction 
 against working it, is not a Jegitimateitem of the damages covered by 
 the injunction bond sued upon. 
 
 Idem— It is a fimdamental rule that no damages can be allowed which are 
 not the actual, natural and proximate result" of the wrong committed. 
 
 Appeal from District Court of Clear Creek County. 
 
 Debt upon aa injunction bond, wherein the Marshall Sil- 
 ver Minings Company and others, the appellees, were plaint- 
 iffs, and Eli F. Streeter, Walter N. Webster, impleaded 
 with Piiilip Paul, were defendants. Tiie declaration is in 
 debt, in the usual form, on an injunction bond, in a case in 
 which Walter N. Webster and Joseph Eist were complain- 
 ants and the above named appellees were defendants, in 
 which injunction was granted to restrain the said appellees 
 from working certain property on the Seneca and Cayuga 
 lodes in the county of Clear Creek. 
 
 The breach assigned was, that the said suit was dismissed 
 and the injunction was dissolved as having been wrongfully 
 issued; that by reason of the issuance of said injunction the 
 
Streetek v. Mabshall Silver Mining Co. 661 
 
 appellees herein had suffered loss of profits in working tlie 
 property, and had been obliged to keep in their employ a 
 large number of men, etc., and that the .complainants in 
 said injunction- suit had failed to pay either the costs of the 
 suit or thedamages suffered- by ithe appellees herein. 
 
 The pleadings, after the title, etc., bfegin: "And the said 
 defendants, Walter N. Webster. ;and Eli F-Streeter.by H. 
 M. and W. Teller, their attorneys, come , and defend, the 
 wrong and injury, when," etc. . The subsequent .pleas, bcgaii 
 as stated in the opinjouj The^defendants were all served.- < 
 
 The evidence,' as appears by the record, was substaatially 
 as follows: ' 
 
 Solomon Robinson was sworn as a witness^ on behalf of 
 tlie plaintiff, and testified;: "I know Compass and Square 
 lode; was mining on the northwall of this lodfi inthefalLof 
 1871; had beea mining five or six months;; we had s^ lease 
 from; the Marshall ^Silver Mining i Company; we had pos- 
 session of 350 f(^et southwest-tof the tunneil; we were work- 
 ing jtwelve, men; ,. the lease:ran runtil the IstofMay, 1872; 
 we were working these m^n -when the iujuncti^fn was 
 served?, we -had a good; body, of ore;, the ore was yielding 
 from, 600 to 900 ounces, per ton,: worth $1.10 per oz.; the 
 crevice was ftam- I to 6 inches in .width; the- second class 
 ore run from , 150 to. 300 ounces per ton, and was worth. 85 
 cents per <jz.; pay -streak was from, ; 8 inoheS' t-o afoot wide;? 
 two thirds. lof .the ore was .second elass;; we only made two 
 classes of ore; .we took out, perhaps, a half a ton per day 
 of both: iclasses.of ore, 333 pounds iof the first class and 666 
 pounds; of the second classy ^we pajid $3.50 per day to the 
 men; it cost us $42 per day to run the mine besides powder, 
 candles, etc.; the difference between: the amount received 
 and the expenses: wouldn be the. profits; we paid-.the icom- 
 -pany^.on the lease Que third of the; amount ;taken out; -we 
 were stopped fortjrfive.days by the injunction. ;; We had 
 four men employed during; that; time in riwning a drift; 
 this drift was rM to satisfy the court; can't say we toolc 
 out pay in, tlie drift; the twelve men all stopped work- 
 except the men in the drift; I had. orders ifrom the Marshall 
 Silver Mining^. Company to keep the men? ;I don't know as 
 I can tell the reason, why the men were kept.; Marshall or- 
 
662 Injunction Bond. 
 
 dered ine to keep the men I liad, and have it nnderstood 
 that they were on pay, it was necessary to keep the men be- 
 cause the mine was liable to be jumped; the injunction was 
 dissolved about tlie 30th of January, 1872; we had not the 
 opportunity under the lease to get all the ore we could have 
 taken out if injunction had not been served. 
 
 Qn cross-examination wituess testified: ""We worked on the 
 lease until the first of May; I think the working would aver- 
 age as I have stated; the cost of steel powder, etc., would not 
 be a great deal ; the lease was to John Wycoff, Charles Sar- 
 gent and myself; we sold the ore to the mill; something over 
 onehalf run 900 ozs.; I think the average of the first class 
 would be $750 per ton ; I think the average of the second 
 class would be $250 per ton; liad been working on the ore 
 vein when stopped, about a month; had been working under 
 the lease from about the 1st of October; F. J. Marshall was 
 agent of the Marshall Silver Mining Company; he told me to 
 keep the men, and I kept the most of them; I kep.t eight of 
 them; four of them were in the drift the most of the time, the 
 others were not doing anything the most of the time; the drift 
 was run on the Compass and Square lode; I hardly thought 
 it was necessary to keep four men to keep the mine from be- 
 ing jumped; over onehalf the men have been paid; I paid 
 three of them; I paid them $90 each for wages that had ac- 
 crued after the injunction was served; I worked in striking 
 and blacksmithing for the four men; we had no other busi- 
 ness; no person volunteered to employ us; I did not try to 
 get work elsewhere; don't know whether Wycoff and Sar- 
 gent were at work or not; I suppose they could have got work 
 if they had wanted it." 
 
 The plaintiff then called F. J. Marshall, who testified: " I 
 am president of the Marshall Silver Mining Company, and 
 was so in 1872; I gave directions when I was notified of the 
 injunction to keep the men, but to stop work; I received no- 
 tice from my attorneys that injunction would be dissolved, 
 and that was one reason why I kept the men; another reason 
 was, I heard some bints that somebody would try to take pos- 
 session by force. I know of expenses of Mr. Johnson, the 
 surveyor, incurred in that case." The witness was here asked 
 to state if it was necessary in the case to have survey and plat 
 
Steeetee v. Marshall Silver Mining Co. 668 
 
 of the premises, and whether such survey and plat were made, 
 towliichtlie defendants by their counsel objected, as being 
 immaterial, but the objection was overruled, and the defend- 
 ants excepted. Tiie witness answered: " I regarded it nec- 
 essary, and the survey and plat was made." The witness was 
 then asked: "What did you pay Mr. Johnson for that sur- 
 vey ? " To which question the defendant objected as being in- 
 competent, and that what they paid would be no measure of 
 damages in this action upon the bpnd, and if paid it was an 
 expense not covered by the bond; but the court overrul- 
 ing the objection, the defendants excepted. The witness there- 
 upon answered: " To the best of my recollection $90; and his 
 services were worth what we paid. I had some other expenses 
 in going back and foi'th to Central, and in looking up the wit- 
 nesses." The witness was here asked to state, if he could, how 
 much money he had expended in procuring witnesses in sup- 
 port of his motion to dissolve the injunction, to which the de- 
 fendants objected; but the court overruling the objection, the 
 defendants excepted, and the witness answered: " I am sat- 
 isfied it was not less tiian $100; this $100 was spent in em- 
 ploying a man to look up the witnesses." 
 
 The plaintiifs thereupon rested their case. 
 
 The defendants thereupon called the witness, Kobinson, 
 who testified: " We worked under the lease till May 1st, 
 when it expired." The witness was then asked: "Did you 
 or did you and your co-lessees, after the 1st of May, 1872, 
 take a new lease of this same property on the Square and 
 Compass lode?" To which the plaintiffs objected, and the 
 court sustaining said objection, the defendants excepted. 
 The defendants Ithen offered to show by this witness that 
 he, the witness, took a new lease from the 1st of May, 1872, 
 upon the same terms as the former lease and of the same 
 ground, and worked the same till the ore was worked out. 
 To the reception of which the plaintiffs objected, and the 
 court sustaining the objection, the evidence was not received 
 and the defendants excepted. Witness then proceeded: "I 
 did not work out all the ground that would pay to work by 
 the 1st of May, 1872; we had worked out, on the 1st day of 
 May, about one half the ground we found would pay to work; 
 
664 Injunction Bond. 
 
 we had a pocket of ore 50 or 60 feet long; I judge we took 
 oat in the neighborhood of 100 tons of ore." 
 
 Defendants then introduced as a witness "Walter N. "Web- 
 ster, who testified: "I know Charles Sargent; I had a con- 
 versation with him one week ago to-day about the amount of 
 ore Eobinson, "Wycoff and Sargent were taking out of the 
 Compass and Square lode when they were enjoined." 
 
 The witness was asked: ^'"What was said about it by Mr. 
 Sargent? " To which question the plaintiffs objected, " that it 
 was since assignment to plaintiff and was incompetent," and 
 the court sustained the oV)jection, and the defendants excepted. 
 
 The jury returned a verdict in favor of the plaintiffs, a mo- 
 tion for a new trial was interposed and overruled, and judg- 
 ment entered on the verdict in the sum of $5,000 debt and 
 $1,440 damages. 
 
 H. M. & "W. Teller, for appellaqts. 
 
 Hugh Butlee, for appellees. 
 
 Elbeet, J. 
 
 Tliere was no appearance in the court below by the defend- 
 ant Paul. 
 
 "Where counsel, i in the first of a series of pleas filed, ex- 
 pressly desii^nate the defendants for whom they appear, the 
 use of the words " the said 4et€ndants" or " the defendants" in 
 the subsequent pleas, designate the defendants named in the 
 first plea and can not fairly be held to be an appearance for a 
 defendant served but not named in the first plea: Ourgan et 
 al. V. School District No. 15, 4 Col. 53, and cases there cited. 
 There being no appearance by the defendant Paul, it was er- 
 ror to enter final judgment against all the defendants, witliout 
 first entering judgment of default against him : Good v. Mar- 
 tin, 1 Col. 40rt. An entire judgment against several defend- 
 ants must be reversed as to alL It can not be reversed as to 
 one and affirmed as to the others: Gargan et al. v. School 
 District JVo. 15, supra. In view of another trial it is per- 
 haps well to notice some of the questions raised by the in- 
 structions and argued by counsel. 
 
 The defendant asked and the court refused to give the fol- 
 
Streetee v. Marshall Silver Mining Co. 665 
 
 lowing instruction: "That the money alleged to have been 
 paid for the expenses of men to watch or: hold the mine 
 againsfr other than thei defendants in this case^ can not be al- 
 lowed in this case,' and it- is not a legitimate item of the 
 damages covered by the bond sued on." 
 
 The refusal to give this was error,- and in contravention of 
 the fundamental rule that no damages will be allowed wliich 
 are not the actual; natural and proximate result of the wrong 
 committed. • 
 
 Another instruction asked and reused is as' follo^^s: 
 " That if they believe, from the evidence, that theii Marshall 
 Silver Mining Company, one of the plaintiffs, was the owner 
 of Ooimpass and Square lode; and that at-time of service of 
 writ of injunction referred to in bond upon which -suit was 
 brought, it had leased the same to Kobinson, Wycoff & Sar- 
 gent, and by the terms of such lease were to have one third 
 tlie proceeds of the ore taken out of the property so leased, 
 then defendants in this case are not liable -to tlie company or 
 to any or all of these- plaintiffs for the amount of such one 
 third, even although the said lessees were proliibited by the 
 injunction from working said property, -unless it has been 
 shown that . said company, in consequence of the issuance lof 
 said writ of injunction, lost said one tliird or some porrion 
 of it, or was unable to lease- said; property on tiie same 
 terms; and that if the ore remained in the mine, in the 
 abseiiice of .proof that the company could not lease the said 
 mine, and procure the ore to be taken out on the same terms 
 as in the former lease, the said company can not be held to 
 have suffered any damau;e,- by reason of the failure of les- 
 sees to take out Snob ore, and the jury should allow no dam- 
 ages to the said company on account of said injunction." 
 This -instruction is. not free from objection. . ■ '■ 
 Tlie premises do not warrant the broad conclusion that "the 
 jur7 should allow no damages to the company on acconnf of 
 the injunction;" nor is the right to recover the value of the one 
 third of the proceeds at all dependent on the ability or ina- 
 bility of the company. to. lease its- mine- on the same terms. 
 But in so far as .it excludes the valuer of the one third' of the 
 product of the mine going to the company under the terms of 
 the lease, from the damages recoverable by the plaintiffs, it is 
 
666 Injunction Bond. 
 
 correct. The company did not, by reason of the injunction, 
 lose its ores, but their prodnction for forty-five days under the 
 terms of the lease. There was no loss of property; tliere may 
 have been a loss of profits. If, for instance, the company was 
 compelled to pay higher rates than under the terms of the 
 lease for mining the same ores, there was a loss of profits in 
 this respect to the extent of the increased cost, which was tlie 
 legitimate subject of recovery. So, too, a loss of profits, 
 arising from loss of the use of the product or its value, would 
 afford ground of compensation." 
 
 Anotlier instruction refused by the court is as follows: 
 
 " That plaintiffs in this case can not recover of defendants 
 herein any damages on account of any loss of profits alleged 
 to have accrued to Robinson, Sargent & Wycoff, or either 
 of them, growing out of the said lease testified to by 
 Eobinson, unless said plaintiffs have shown by the evidence 
 that said parties were, by tlie delay and stoppage of the work 
 under said lease, occasioned by the issuance of the writ of in- 
 junction, actually deprived of such profits, and that they 
 were unable to procure a new lease upon the same terms as the 
 first one. upon wliich to work the ground so leased by them." 
 
 This instruction was properly refused. Robinson, Sargent 
 & Wycoff were lessees, and were entitled to recover the value 
 of the lost period of their lease witliout reference to their abil- 
 ity to make a new lease on the same terms. 
 
 It is not intended here to lay down a rule covering all the 
 damages recoverable on the bond, but simply the rule upon 
 tlie points indicated. 
 
 The right of the obligees in this bond to maintain a joint 
 action t'lereon is not called in question, and Ve are not to be 
 regarded as deciding the question by implication. The judg- 
 ment of the court below is reversed, and the cause remanded 
 for further proceedings according to law. 
 
 Reversed. 
 
 1. Attorneys' fees in the suit to determine the title, not allowed in the 
 suit on the injunction bond: Allporl v. Kelley, 2 Mont. 343, following 
 Campbell V. Metcalf, ante, 656; Swan v. Timmons, 81 Ind. 243. 
 
 2. All proximate damages recoverable: Terrell ■". Tngersoll, 10 Lea 
 (Tenn.), 77. 
 
 3. Sureties and principal may be jointly sued: Ducket v. Price, 7 Colo. 
 84. 
 
Thoenbuegh v. Savage Mining Co. 667 
 
 Thornbukgh v. The Savage Mining Co. 
 
 (1 Pacific Law Magazine, 267. U. S. Circuit Court, District of Nevada, 1867.) 
 
 ' View of mine with use of means of access. Where the question at issue 
 was the identity of the lode claimed by plaintiff with the lode ckimed 
 by the de'endant, which could only be determined by inspection of under- 
 ground developments of the mine in possession of the defendants; Held, 
 that it was a proper case for an order of inspection, and the order was 
 made, allowing view and survey of the mine by the complainant, with 
 his attendants and witnesses not to exceed nine in number, during five 
 successive days, the defendant being commanded to furnish all means 
 of ingress and egress and means of traversing the mine. 
 
 " Jurisdiction of U. S. Courts over foreign corporation. , A corporation, 
 organized in the State of California, but ownmg and working mines in 
 Nevada, having agents who are served with process in Nevada, is a per- 
 son found in the district within the meaning of the Judiciary Act of 1789. 
 
 Idem — Service in sncli cases. A corporation organized in California, but 
 owning and operating mines in Nevada, is subject to all the liabilities 
 growing out of its mining business or its ownership of mining property, 
 and can be reached by process of the circuit court, by service upon its 
 resident managers, under section 29 of the Practice Act of Nevada, 
 adopted by the rules of the United States Circuit Court; and such cor- 
 poi'ation is a body politic within the State of Nevada. 
 
 Injunction— Special appearance. A court of chancery, where the sole ob- 
 ject of a bill filed is to obtain an injunction, will not allow that object to be 
 resisted wilhout holding the defendant to a general appearance in the 
 action. 
 
 Before granting an order for the inspection of a mine, the court must be 
 satisfied that the ap{)lication is made in good faith, and in granting it 
 will pay due regard to the convenience of the party affected. But a court 
 of equity has the power to make and enforce an order of this kind, and 
 where the facts to be determined can not be discovered except by inspec- 
 tion of a mine in the possession of the defendant, and accessib.e only by 
 a deep shaft and machinery,- it would be a denial of justice to refuse it. 
 
 By the Court, Baldwin, J. 
 
 On the 12th day of Fehrnary, instant, an ininnction was 
 granted against the defendant in this action, restraining it 
 from mining upon certain premises in tlie complainant's bill 
 described. ^ 
 
 The injunction issued upon the return day of a rule to show 
 
 ' Stoclcbridffe Co. v. Cone Iron Works, 6 M. E. 317. 
 ' V. S. V. Farrott, 7 M. R. 335. 
 
668 Inspectiokt, 
 
 cause, wliich rule the court found to have been properly served 
 upon the defendant. 
 
 While the injuncnon -was not immediately contested prior 
 to the granting thereof by the court, questions had arisen in 
 the action and adjudications had been made, of which, as well 
 as of the facts which had transpired, it is thought best to pre- 
 serve a record. On the 23d of January, 1867, the complainant 
 iiled his bill in this court. The defendant is a corporation 
 organized under the laws of California, but holding property 
 and caiTying on its business of miningin this State. A sub- 
 poena was issued upon the bill and by the marshal served upon 
 Charles Bonner, the superintendent and general, managing 
 agent of the defendant. The subject-matter of the litiga- 
 tion thus commenced was a quartz vein called, the "Mitchell 
 lode," alleged to exist immediately east of another vein ad- 
 mitted to belong to the defendant and styled the " Comstock 
 lode." 
 
 The day after it was filed the complainant's solicitors, upon 
 the bill and an alBdavit, moved, before one of the judges of 
 this court at chambers, for an crder of survey and inspec- 
 tion of the premises in dispute, and of such mining works ad- 
 jacent as might serve to enlighten the issue of fact in the ac- 
 tion. At the same time' a ruleto show cause why an injunc- 
 tion should not issue was applied for, and, as is usual, was 
 granted. 
 
 The judge had in a previous case determined the propriety 
 of granting an order of survey such as the complainant sought 
 for here, but in deference to the convenience of the defendant 
 declined to a,ci ex parte, and issued a rule to show cause, re- 
 turnable the following day. 
 
 The complainant's affidavit, upon which, together with his 
 bill, the application for survey was based, and the judge's or- 
 der thereon, it is thought worth while to copy in this opiuiob. 
 
 VERIFIED PETITION TOE INSPECTION. 
 
 United States of America: In the Circuit Court of the 
 United States for the District of Nevada: In Equity. 
 
 William B. Tkornhurgh, complainant, v. The Savage Min- 
 ing Company, defendant. District of Nevada, ss. Wm. B. 
 Tiiornburgh, being duly sworn, deposes and says: That he is 
 
Thohnburgh V. Savage Mining Co, 669 
 
 tke complainant, imtlie above entitled suit; that the same has 
 been brought and is i^eading in. the above entitled court for 
 the purpose of enjoining and preventing the defendant from 
 further working or taking out ore, or other mineral substance 
 from or upon the .premises and property of deponent, which 
 are described as fdlows, to wit: 
 
 Tiiat portion of a certain quartz lode commonly called and 
 known as the Mitchell lode, and lying adjaceflt to and next 
 east of the quartz lode commonly called and known as the Oom- 
 stock lode, bounded on the north by the southern boundary line 
 of the mining claim located and known as the Breckenridge 
 Company's claims, and on the south by a line drawn at right 
 angles' with the course of the quartz lode worked by the 
 Hale & Norcross Company across said Mitchell lode, and 
 '.through ;the. said Hale & Korcross Company's north line, 
 and - being the nortliern portion o{ the mining claim located 
 by L E. Brokaw and others, on the twenty-first day of Janu- 
 uar}', A. D:. 1861, as commencing at a certain stake at Burk's 
 blacksmith shop, near street, in Virginia City, and running 
 thence southerly .along and on said Mitchell lodej Together 
 with the dips, spurs, angles and variations thereof, and surface 
 room for the convenient working of the same as a mine, and 
 the appurtenances, said ipremises and property; being situate 
 in the Virgin ia Mining District, in Storey county, . Nevada; 
 i which suit is in. aid of an actionat law, brought and pending 
 on the law side of said court, by tlje deponent against the de- 
 fendant above named, to recover possession of said property 
 and premises from thcin; that the said defendants are in the 
 exclusive possession of the said premises and property, and of all 
 works,.drifts and developmentsby which the questions in con- 
 troversy between the parties to said suit and action can be de- 
 tecoi-ined, and from an inspection of which only can the mer- 
 tits of the controversy be seen and understood. 
 
 That the main question involved in the suit is, whether the 
 premises and. property described is a separate and distinct 
 quartz lode, different and independent of. and from the 
 qnartz lode known as the Corastock lode; the complainant, 
 this deponent, contending and believing that the affirmative 
 answer is true, and the defendant contending that the nega- 
 tive is the true answer. 
 
670 Inspection. 
 
 And this deponent further says that the premises, prop- 
 erty and qnartz lode above described, is a separate, distinct 
 and independent lode, of and from the qnartz lode known as 
 the Corastock lode, and that the truth will be shown so to 
 be by an inspection and survey of the works and drifts and 
 developments existing in, upon and over the said two lodes, 
 and the intervenin;^ space, and such inspection and survey are 
 
 necessary in the premises. 
 
 W. B.Thobnbuegh. 
 
 Sworn and subscribed to before me, this January 24, 1867. 
 Alex. W. Baldwin, U. S. Judge. 
 
 EULE TO SHOW CAUSE, EEOITING OEDEB FOE INSFECTION, AS 
 ■pEATED FOE. 
 
 Wm. B. Thornhvj-gh, oomplainixnt, v. The Savage Mming 
 Company, defendant. District of Nevada, ss. On reading 
 the affidavit of Wm. B. Thornburgh, complainant in the above 
 entitled suit, and good cause appearing therefor, on motion of 
 Mesick and Seely, solicitors for complainant. 
 
 It is ordered that an inspection and survey be made by the 
 complainant and his employes and attendants, not exceeding 
 nine in number, of the following described premises, property, 
 works, drifts and developments, to wit: All that portion of a 
 certain qnartz lode commonly called and known as the Mitch- 
 ell lode, and lying adjacent to and next east of the qnartz lode 
 commonly called and known as the Comstock lode, bounded 
 on the north by the southern boundary line of the mining 
 claim located and known as the Breckenridsje Company's 
 claims, and on the south by a line drawn at right angles with 
 the course of the quartz lode worked by the Hale & Norcross 
 Company across said Mitchell lode and through the said Hale 
 & Norcross Company's north line, and being the northern por- 
 tion of the mining claims located by I. E. Brokawand others, on 
 the twenty -first day of January, A. D. 1861, as commencing at 
 a certain stake at Burk's blacksmith shop, near street, in Yir- 
 ginia City, and running thence southerly along and on said 
 Mitchell lode. Together with the dips, spurs, angles and varia- 
 tions thereof, and surface room for the convenient working of 
 the same as amine, and the appnrtenances. 
 
 Also, the Comstock lode and any intervening space between 
 
Thoknbdrgh v. Savage Mining Co. 671 
 
 said lodes, or the spaces on either side thereof, upon, in or 
 through which there exist any works, drifts or other develop- 
 ments, together with all such works, drifts or other develop- 
 ments, the 'same being situate in the Yirginia mining dis- 
 trict, county of Storey and State of Nevada. 
 
 That the defendants, their servants, agents and employes 
 in charge of or working upon or in tlie aforementioned prem- 
 ises, property, works, drifts or developments, permit the said 
 survey and inspection to be made, and furnish and provide all 
 the means in their possession of ingress and egress and trav- 
 ersing the same, to the said complainant and his employes 
 and attendants aforesaid, each day, for the period hereinafter 
 limited; and that this order take effect and be in force and 
 binding upon all parties and persons upon the presentation 
 to them, or any of them, of this order; and that the same 
 continue in force for the period of live successive days on 
 wiiich such inspection and survey is being made. 
 
 Let the defendant show cause before me, at my chambers 
 
 in the City of Virginia, on Friday, the 25th day of January 
 
 instant, at ten o'clock a. m., why the above moved-for order 
 
 should not be granted. 
 
 Alex. W. Baldwin, 
 
 United States Judge, District of Nevada. 
 
 PEOOEEDINGS, ON EETUEN OF THE EULE. 
 
 At 10 o'clock of the return day of this rule, and in response 
 thereto, the complainant, by Messrs. Mesick and Seely, and 
 the defendant, by Messrs. Hillyer and Whitman, came before 
 the judge at his chambers. 
 
 All these gentlemen are solicitors of this court. The com- 
 plainant, through his solicitors, formally made his application 
 for the order of survey. Mr. Hillyer, on behalf of the defend- 
 ant, requested the judge to postpone the hearing until addi- 
 tional associate counsel could be procured from San Francisco. 
 A postponement for several hours was allowed, to enable the 
 defendant's solicitors to prepare an argument in opposition 
 to the order. When the hour arrived to which the hearing 
 had been adjourned, the solicitors of the parties again came 
 before the judge. In opposition to the application Messrs. 
 Hillyer and Whitman presented the affidavit of Mr. Charles 
 Bonner, drawn by tliem, of which the following is a copy: 
 
672 Inspection. 
 
 AFFIDAVIT OF CHAELES BONNEE, OPPOSING INSPECTION. 
 
 United States of America. In the Circnit Court of the United 
 States for the District of JSfevada. In Equity. 
 
 "Win. B. Thornburgh, complainant, v. The Savage Mining 
 Company, defendant. In the matter of the application of the 
 complainant'for an order of survey^ Before Justice Baldwin, 
 sitting in chambers. 
 
 Now comes Charles- Bonn«r, superintendent of the defend- 
 ant, the Savage Mining Company, and having charge of its 
 litigaliion in the State of Nevada, and being first duly sworn, 
 deposes and says, that lie is informed and believes, and so 
 charges the truth to be, that William B. Thornburgh, com- 
 plainant above named, is not the real party in intei-est in the 
 premises he seeks to recover. That he is not the owner 
 thereof; that he paid no consideration therefor; that the 
 same have been transferred to hira; that, being the nominal 
 and apparent legal owner, he might bring suit, as he Iiatli 
 done,: before the Circuit Court in and for the District of Ne- 
 vada. That defendant desires to make issue with said com- 
 plainant upon such point of ownership in 'Order to test tlie 
 truth thereof and to compel a dismissal of this suit in event 
 the fact be according to the information of the defendant. 
 That for such purpose affiant desires to proceed by bill of dis- 
 covery, pica to the jurisdiction of said court, or application 
 for injunction in equity, as he may be advised after full, fair 
 and free statement of defendant's case to its counsel and under 
 their advice. That notice of this application was given to 
 defendant at nine (9) o'clock p. m. of the twenty-fourth in- 
 stant, and not before;, that the papery in the suit to whicli 
 this application is auxiliary were served on the defendant on 
 tlie twenty-third instant, and copies thereof transmitted by 
 affiant to San Francisco so soon as they could be prepared ; 
 that defendant hath twenty days from the service of said 
 papers, exclusive of the day thereof and of Sundays, within 
 which, to appear in such causes; tliat the principal counsel of 
 defendant reside in San Francisco; and that it is necessary, 
 for, the proper appearance and defense of defendant, that they 
 should be consulted before the defendant takes any definite 
 action in the premises; tliat to decide npon the course of de- 
 fendant's action will take more time than is alloweJ for the 
 
Thornburgh v. Savage Mining Co. 673 
 
 hearing of this motion, which is set for four p. m. tliis day 
 instant; that to make the order asked by complainant, or any 
 order of such nature, would inflict upon defendant great hard- 
 ship, inconvenience and expense, namely, an expense of not 
 less than five hundred dollars per day; that such order should 
 not be made unless the complainant hath the right of action 
 in the suits i-eferred to, and that defendant should be allowed 
 a reasonabte time to appear in such suit and be heard therein 
 upon the preliminary question of complainant's right before 
 he is required to respond to this motion or before the same is 
 granted. 
 
 To the end, therefore, that defendant may have opportunity 
 to test complainant's real character and position with regard 
 to the property in controversy, defendant asks that the hearing 
 of the motion be postponed for such time as may be reasona- 
 ble for the ascertainment of such fact, and until proof touch- 
 ing the same can be heard. , Affiant further shows that he is a 
 practical miner, and has been engaged in such business for 
 twelve years last past; that for four j'ears last past he lias 
 been engaged in such business in the county of Storey, State 
 of Nevada; that he is well acquainted with the works of the 
 mine of defendant, and the developments therein; that there 
 is no other lode than the Comstock lode therein, and that de- 
 fendant is not now working upon or extracting ore from any 
 lode or lead of mineral-bearing rock other than the Comstock; 
 that neither complainant nor his predecessors in interest, nor 
 the locators of the Mitchell lode, so called, or any other per- 
 son or persons, have ever done any work or made any explo- 
 rations upon said Mitchell lode, or in search therefor, within 
 the boundaries of defendant's mining claim, or within the 
 boundaries set forth in complainant's complaint, as affiant is 
 informed and believes; that defendant iiath had open, notori- 
 ous, exclusive and uninterrupted possession, custody and con- 
 trol of the place where it is now working, and of all places 
 where it has done work, adverse to all the world, for more 
 than three years last past; that all the work done by defend- 
 ant is laid down upon maps drawn by competent surveyors, 
 which heretofore have been kept in the ofiice of the company 
 open to public inspection, as complainant well knows; that 
 from time to time during the last year many persons have 
 VOL. VII.— 43 
 
674 Inspection. 
 
 visited the workings of the defendant, and there has been no 
 concealment thereabout; that complainant could have visited 
 the same at any time prior to the commencement of this suit, 
 had he so desired, as he well knows; that affiant is informed 
 and believes, and so charges the truth to be, that the object 
 of complainant in seeking this order is to annoy and harass 
 the defendant, to hinder its workings, or for some other object 
 or purpose contrary to equity and good conscience. 
 
 Chaeles Bohnee. 
 {Jurat.) 
 
 FUETHEE PE0CEEDING8 ON EETUEN OF THE EITLE. 
 
 The complainant's solicitors were then given until seven 
 o'clock to procure rebutting testimony. 
 
 At this hour the parties again came before the judge, and 
 the complainant's solicitors presented this affidavit, travers- 
 ing most of the statements in that of Mr. Bonner. The ar- 
 gument then proceeded — Mr. Mesick, for the complainant, 
 urging the judge to grant the order; Mr. Hillyer, for the de- 
 fendant, resisting it. 
 
 Tlie argument concluded, the judge took the matter nnder 
 advisement, and the next day decided that the plaintiff wag 
 entitled to the order of inspection and survey, in the form ap- 
 plied for, and ordered it to issue in the action. 
 
 The order was served upon the solicitors and superintend- 
 ent of the defendant, and for three days it was obeyed. On 
 the twenty-sixth day of January, the Savage Mining Com- 
 pany, by Hillyer & Whitman, its solicitors, filed in this 
 court its bill against William B. Thornburgh, of which the 
 following is a copy: 
 
 CEOSS-BILL FOE DI8C0VEEY AND TO ENJOIN PEOCEEDING ON THE 
 OEIGINAL BILL. 
 
 United States of America: In the Circuit Court of the 
 United States for the District of Nevada — in Equity. 
 
 The Savage Mining Company, complainant, v. Wm. B. 
 Thornburgh, defendant. 
 
 To the honorable the judges of the Circuit Court of the 
 United States for the District of Nevada: 
 
Thoenbukgh v. Savage Mining Co. 675 
 
 Tour orator, the Savage Mining Company, shows to this 
 honorable court that it is a corporation, incorporated in the 
 State of California and under the laws thereof, and having its 
 principal place of business in said State, and is a citizen there- 
 of; that William B. Thorn burgh, the defendant, is a citizen 
 of the State of Nevada. 
 
 Tour orator further shows that it is now, and for five years 
 last past has been the owner, entitled to the possession and in 
 the possession of a certain mining claim and quartz lode 
 situate in the county af Stoiey, said Stkte, known as the 
 Savage claim, and described as follows: Eight hundred (800) 
 -feet in length upon the quartz lode commonly known as the 
 Con(i8tock lode, bounded on the north by the Goald & Curry 
 claims, and on the south by the Hale & Norcross claim, and 
 including all the dips, angles and spurs of said lode between 
 said north and south boundaries. 
 
 Tour orator further shows, that on the 23d day of this 
 month the defendant, William B. Thornburgh, commenced an 
 action in this honorable court against this complainant, the 
 nature of which action fully appears from the complaint there- 
 in, a copy of which is hereto attached, marked exhibit " A." 
 
 Tour orator further shows, upon information and belief, 
 and avers the fact to be, that the said William B. Thornbnrgh 
 is not in fact the real ownerof the property described in said 
 complaint, nor the real party in interest in said action; but 
 that the real parties in interest as complainant in said action 
 are other parties whose names are unknown to this complain- 
 ant, and who are citizens of California, and not of the State 
 of Nevada. 
 
 Tour orator further shows, upon information and belief, 
 and avers the fact to be, that shortly before the commencing 
 of said action the real parties in interest as complainant in 
 the same, and the only parties besides this complainant own- 
 ing or making claim of ownership to said property, for the 
 fraudulent purpose of enabling said actions to be commenced 
 in a court of the United States, and for no other purpose, 
 executed or procured to be executed to said Thornbnrgh a con- 
 veyance! or conveyances of the said property by deed or deeds 
 of conveyance purporting on their face to convey the title to 
 said property, but which in fact were merely colorable and 
 
676 Inspection. 
 
 made, not to convey any real interest in the same, but solely 
 to invest said defendant witli a nominal title in order that 
 the action against the complainant might be brought in the 
 Federal court instead of being brought in the court of a State. 
 
 Your orator further sliows, that it is desirous of contesting 
 the jurisdiction of the said honorable court in said action, and 
 procuring a dismissal of the same upon the ground that the 
 real parties in interest in the same are not citizens of different 
 States, as therein alleged, which fact would appear if the said 
 "William B. Thornburgh would discover and set forth the real 
 condition of the title to said property upon which he bases 
 his right to recover therein, and that for the proof of said 
 facts a discovery by the said defendant in the manner herein 
 prayed for is material and essential to this complainant. 
 
 In consideration whereof, and forasmuch as your orator is 
 remediless in the premises at common law, and can not have 
 a complete discovery of the condition of said title without the 
 aid of this honorable court, and to the end that said William 
 B. Thornburgh may, upon his corporal oath, full, true, direct 
 and perfect answer make to all and singular the matters and 
 charges aforesaid, and that not only to the best of his knowl- 
 edge and remembrance, but also the best of his information 
 and belief, particularly that the said defendant may discover 
 and set forth in manner aforesaid: 
 
 First. Whether he is in fact the real and true owner of 
 the said property upon which the right to recover in said 
 action is based in said complaint, and whether other parties, 
 and if so what parties, are the real, equitable and beneficial 
 owners of the same. 
 
 Second. Whether he, the defendant, is the sole beneficial 
 owner of the said property and title, and whether other par- 
 ties are not legally or beneficially interested in the same, 
 and if so, what parties, and what is the extent and character 
 of their interest, and what is their place of residence. 
 
 Third. At what time, place, from whom and by what 
 means the said defendant obtained the title which he sets 
 forth and relies upon in said action. 
 
 Fourth. What was the consideration, if any, paid by 
 defendant for said title, and when, where and under what 
 circumstances was the same paid. 
 
Thoenbuegh v. Savage Ministg Co. 677 
 
 Fifth. What were the negotiations which took place in 
 reference to the obtaining of said title by defendant, and with 
 whom said negotiations were made, who were present at the 
 time the said negotiations were conducted, and what conver- 
 sation was then or previously had in the presence of defend- 
 ant in reference to the object of making a transfer to said 
 defendant, and in reference to the beneficial interest in the 
 said property which should be had by the defendant or by 
 other parties. 
 
 Sixth. Whether said defendant has in his possession or 
 control, or knows of the existence of a certain deed from one 
 Charles Lintott to one Thomas Farrel, purporting to convey 
 the title to said property, and if so, whether defendant has 
 any knowledge or belief, and if so what, as to the real consid- 
 eration of said deed and as to the purpose and objects for 
 wiiich the same was paid. 
 
 Seventh. Whether said Tiiomas Farrel made a conveyance 
 of said title to defendant, and if so, at what time and place it 
 was made, and who were then present, and what then or in 
 that conversation was said to, or in the presence of defend- 
 ant in reference to the objects and purposes of said convey- 
 ance. 
 
 Eighth. Whether the consideration . mentioned in said ' 
 deed from Farrel to defendant was ever paid, or any part of 
 the same, and if so, at what time, place and to whom. 
 
 Ninth. Whether the defendant has not made a contract 
 with one or more persons, either written or verbal, by which 
 said other persons bear the whole or some portion of the 
 expense of litigating said action, or the purchase of said title, 
 or are to have an interest in the said property, or in the ben- 
 efits accruing from the litigation of the same with this com- 
 plainant, and if so, what is such contract, and when and with 
 whom was it made. 
 
 Tenth. Whether one C. L. Low is not, to the knowledge or 
 belief of the defendant, a real party in interest in said title to 
 said property and in said litigation, and if so, the character 
 and extent of said interest and when and how acquired, and of 
 what State the said Low is a citizen. 
 
 Eleventh. Whether it was not stated or understood, either 
 at the time of taking the conveyance from said Farrel or dur- 
 
678 INSPECTION. 
 
 ing tlie negotiations for the same, that the real object of mak- 
 inor the same was to enable the said action to be bron^ht 
 in the Circait Court of the United States for the Stiite of 
 Xevada. 
 
 Ai>d that the said Wm. B. Thornbnrgh may make a full 
 and true disclosure and disovery of the several matters afore- 
 said, to the end that your orator may be better enabled to 
 show the want of jurisdiction by this honorable court of said 
 action, and that in the meantime and until the said Thorn- 
 burgh shall have made such discovery as aforesaid, that he 
 may be restrained by the order and injunction of this honor- 
 able court from further proceedings in the said action and all 
 orders therein. 
 
 May it please your honors to grant your orator, not only 
 the most gracious writ of injunction issuing out of this hon- 
 orable court, according to the form of the statute in such case 
 made and provided, and under the seal of this honorable court 
 to be directed to the said Wm. B. Thornbnrgh, restrain- 
 ing him, his servants, agents, attorneys and every of them, 
 from proceeding further in said action, or under any order 
 made in the same, but also a writ of subpoena of the United 
 States of America, to be directed to the said Wm. B. Tliorn- 
 burgh, thereby commanding him at a certain day and under 
 a certain pain, therein to be specified, personally to be and 
 appear before your honors in this honorable court and then 
 to answer all and singular the premises, and to stand to, per- 
 form and abide such order therein as to yonr honors shall 
 seem meet, and your orator shall ever pray, and complainant 
 prays, for such other relief as may to your honors seem 
 proper. 
 
 HiLLTEE & WnrrMAii, 
 Solicitors for Complainant 
 
 United States of America, State of Nevada, County of 
 Storey, ss. 
 
 Charles Bonner, being first duly sworn, deposes and says 
 Uiat he is the superintendent and general managing agent of 
 the Savage Mining Company, the complainant in the above 
 entitled action; that he has heard read over the foregoing 
 bill of complaint, and knows the contents thereof; that the 
 same is true of his own knowledge, except as to the matters 
 
Thoenburgh v. Savage Mining Co. 679 
 
 therein stated on information and belief, and that as to those 
 matters, he believes it to be true. 
 
 Chaeles Bonnee. 
 {Jurat.) 
 
 PKOCEEDTNGS ON THE CEOSS-BILL AND IN CONTEMPT. 
 
 Appended to and made a part of this cross bill, was the orig- 
 inal bill in the action. The cross-bill was by the solicitors 
 of the Savage company presented to one of the judges of this 
 conrt, and an injunction in accordance with its term asked 
 for. This was denied. Then for the first time the Savage 
 Mining Company closed its works, and in disobedience of the 
 order of survey denied admittance to the complainant and his 
 attendants. Tlie corporation, and also Mr. Bonner, the su- 
 perintendent and general managing agent, were cited to ap- 
 pear before the court and show cause why they should not be 
 punished for contempt, and while the former made no appear- 
 ance, the superintendent undertook to purge himself on the 
 srronnds that he was actinsj under the advice of counsel, and 
 that in their and his estimation the order of survey was void, 
 because this court at the time of granting it had not acquired 
 jurisdiction of the person of the defendant. 
 
 Tiie court held that it had acquired jurisdiction, adjudged 
 Mr. Bonner, the superintendent, guilty of the contempt 
 charged, and imposed upon him a fine. The conrt also ad- 
 judged the corporation, the Savage Mining Company, to be 
 in contempt, and, for the purpose of compelling obedience to 
 its authority, ordered a writ of distringas to issue against the 
 property. For the purpose of preventing the execution of 
 this writ by the marshal of the United States, the defendant 
 invoked the authority of a State court, but the tribunal ap- 
 peared to decline to interfere. 
 
 POINTS MADE BY THE EESPONDENTS. 
 
 On Tuesday, the 15th day of February, this conrt convened 
 at Carson City. The complainant exhibited his rule to show 
 cause on the injunction, properly served upon the superinten- 
 dent and general agent of the corporation, defendant, and upon 
 its solicitors, H. and W., and moved for an injunction thereon. 
 Pending the determination of this motion, Mr. Hillyer ob- 
 
680 Inspectiox. 
 
 tained leave to make a special appearance and submit a mo- 
 tion to quash all proceedings iu the action, on the grounds — 
 
 First. That the court has no jurisdiction of the case. 
 
 Second. That the court has no jurisdiction of the person 
 pf the defendant. 
 
 Third. That no service has ever been had on the defendant. 
 
 Fourth.. That no service ever can be had on the defendant. 
 
 Tills motion was by the court overruled, and complainant 
 renewed his motion for an injunction. As Mr. Hillyer, the 
 generally retained solicitor of the defendant, was present, the 
 judge desired to know if he desired to make any resistance 
 to the granting of the injunction, intimating that time and op- 
 portunity for a trial upon tlie merits would be ofiFered, to wiiich 
 it was responded in the negative, unless the court would per- 
 mit the defendant to contest the application for an injunction 
 without holding it to a general appearance in the action. In- 
 asmuch as the sole object of the action was to obtain an in- 
 junction, it was not competent for the court to allow that ob- 
 ject to be resisted by the defendant, without being permitted 
 to a general appearance in the cause. Besides, the court had 
 already distinctly held, that the defendant had generally ap- 
 peared. The complainant renewed his motion for the injunc- 
 tion, and the court ordered it to issue in the form prayed for. 
 
 OPINION AS TO VIEW AND INSPECTION. 
 
 The foregoing statement comprises the facts which, up to 
 tliis period, have occurred in this case. The propositions of 
 law which they involve are: 
 
 First. Ought ^a court of equity, in a mining case, when it 
 has been convinced of the importance thereof for the purposes 
 of the trial, to compel an inspection and survey of the works 
 of the parties, and admittance thereto by means of the appli- 
 ances in use at the mine? All the analogies of equity juris- 
 prudence favor the affirmative of this proposition. The very 
 great powers with which a court of chancery is clothed were 
 given it to enable it to carry out the administration of nicer 
 and more perfect justice than is attainable in a court of law. 
 
 That a court of equity, having jurisdiction of the subject- 
 matter of the action, has the power to enforce an order of this 
 kind will not be denied. And the propriety of exercising 
 
Thornbitegh v. Savage Misting Co. 681 
 
 that power would seem to be clear, indeed, in a case where 
 without it, the trial would be a silly farce. Take, as an illiis 
 tration, the case at bar. It is notorious that the facts by 
 which this controversy must be determined can not be dis- 
 covered except by an inspection of works in the possession of 
 the defendant, accessible only by means of a deep shaft and 
 machinery operated by it. It would be a denial of justice, 
 and utterly subversive of the objects for which courts were 
 created, for them to refuse to exert their power for the eluci- 
 dation of the very truth— the issue between the parties. Can 
 a court justly decide a cause without knowing the facts? And 
 can it refuse to learn the facts? But one adjudication of this 
 subject can be found in the books, and this is in conformity 
 with the views here expressed, viz., Bainbridge on Mines. 
 
 Of course, before granting an order of this kiud the court 
 must be satisfied that the application is made in good faith, 
 and in granting it will pay due regard to the convenience of 
 the party affected. 
 
 The next question in this case, and the most important one 
 which has occurred, is as to the jurisdiction of this court over 
 the person of the defendant. 
 
 OPINION AS TO JURISDICTION AND APPEARANCE. 
 
 Has this court acquired such jurisdiction? The negative 
 of this proposition has been vehemently urged by the defend- 
 ant's counsel. This is conceived to be a fair statement of their 
 position. They submit: 
 
 First. That the judicial act of 1789 provides that no suit 
 shall be brought against an inhabitant of the United States 
 by original process in any other district than that whereof he 
 is an inhabitant, or in which he shall be found at the time of 
 serving the writ. 
 
 Second. That the defendant is a corporation, orn;anized under 
 the laws of the State of California, and that it can not exist or 
 be found beyond the limits of that sovereignty. "While this 
 court is of opinion that the defendant was, within the meaning 
 of the foregoing provision of the judicial act, found in this 
 district at the time process was served, even if such were not 
 the case, the court, by defendant'svoluntary appearance, had 
 acquired jurisdiction before the want of it was suggested. 
 
682 Inspectioit. ' 
 
 Judge Conlding, in his treatise on U. S. Courts, page 127, in 
 discussing the provision under consideration, holds it not to 
 be restrictive of the jurisdiction of the court, but taken to- 
 gether, merely to import that process for the institution of a 
 suit at law, or in equity, shall not run beyond the limit of the 
 district for which the court from which it issues is held. The 
 author continuing, says: "This prohibition, as already inti- 
 mated, has been adjudged not to amount to a denial of jurisdic- 
 tion over causes otherwise in themselves cognizable in the 
 national courts, but only to a privilege given to the defend- 
 ant; of which, however, he must avail himself at the outset or 
 he will be held to have waived it." An appearance, therefore, 
 by a defendant, and answering, generally, without objection, 
 has been always considered to be a waiver. 
 
 In Grade V. Palmer, 8 Wheaton, 699, tlie court say: "It 
 is not necessary to aver, on the record, tiiat the defendant in 
 the circuit court was an inhabitant of the district, or was 
 found therein, at the time of serving the writ. Where the 
 defendant appears, without tailing the exception, it is an ad- 
 mission of the regularity of the service." This is the tenor 
 of all the authorities, nor indeed has their effect been disputed 
 by any counsel in this case. 
 
 Prior to the taking of any exception to the jurisdiction of 
 the court, the defendant, in response to a rule to show cause, 
 addressed to it, why an order in the action should not be al- 
 lowed, had, by generally retained counsel, solicitors of the 
 court, appeared before the judge, and in opposition to the 
 order, introduced testimony and made argument. 
 
 From the very testimony introduced, the affidavit of Mr. 
 Bonner, drawn by the solicitors, it appears that thedefendant 
 had been served and proposed to answer. Does this not show 
 a voluntary submission to the authority of the court? 
 
 The order of survey was evidently regarded by this defend- 
 ant as an important step in the litigation. It was strenuously 
 resisted. Not only was this jurisdictional exception not sug- 
 gested then, but all opposition to the granting of the order 
 having been found ineffectual, the authority of the court was 
 recognized and admitted by obedience to it. Does tliis not 
 indicate that the defendant wai%'ed his privilege to hold itself 
 beyond access by the process of this court? The defendant 
 
Thoenburgh v. Savage Mining Co. 683 
 
 could very easily have found means to suggest to the judge 
 the fact of its residence beyond the reach of his process, and 
 the consequent impropriety of allowing tlie action to proceed 
 against it. But it rather chose to appear before him and con- 
 test the order on its merits. That this appearance was gener- 
 al and for every purpose of the action, is manifest from the 
 fact that it was unreserved and unrestricted by any limitation. 
 A voluntary appearance by a defendant consists in his sub- 
 mitting himself to the antliority of the court, and the manner 
 of entering it is usually regulated by rule. But it by no 
 means follows that a party may not be held to'' appear in an 
 action without formally complying with such rule. See 1 
 Barb. Ch. Prac, 77, 82, 87. 
 
 in Tallman v. McGarty, 11 "Wisconsin, 401, it was held 
 that making a motion in a case was an appearance. 
 
 In Cooley v. Lawrence, 5 Duer, 605, the court, after re- 
 viewing the authorities, says: "All these authorities sliow that 
 the question is whether the appearance of the defendant has 
 been an. act importing that he submits the determination of a 
 material question of his case to the judgment of the court." 
 Asking for a continuance in a cause is held in Iowa to be a 
 full appearance: Hotohhissw. 2Vwmpson,M.ov. 156; Aimer 
 y. Eiatt <& Harbine, 4 Greene, 439; H., 382; H., 441. _ Also 
 that moving to suppress depositions, or to call into action the 
 power of the court for any purpose except to pass upon its 
 jurisdiction is an appearance. 
 
 , Sae also 4 Oal. 304, 306. But in this action the defendant 
 has actually appeared upon the record; for its cross-bill, which 
 has been set forth in this opinion, is to all legal intent an an- 
 swer in this cause. 
 
 Says Daniell in his Chancery Practice, Yol. .2, 1649« "A 
 cross-bill is a mode of defense. The original bill and the 
 cross-bill are but one cause. If a cross-bill be taken as con- 
 fessed it may be used as evidence against the plaintiff in the 
 original suit, on the hearing, and will have the same effect as 
 if he had admitted the same facts in an answer." 
 
 To sustain the doctrine of the text the author cites many 
 respectable authorities. 
 
 :. In OocJcrell v. Warren, 1 ^rk. 346 (quoted in note to l^an. 
 Gh. P. 1649) it was held, that when a defendant files a cross- 
 
684 Inspection. 
 
 bill on matters clearly cognizable in equity, the cross-bill 
 will supply any defect in jurisdiction, and place the whole 
 cause before the court, and impose the duty of granting re- 
 lief to the party entitled: 2 Carter, 90; 2 Barb. Ch. 127, 136; 
 Story's Eq. PI." 389, 390. 
 
 It is the opinion of this court that it acquired jurisdiction 
 of the person of the defendant by virtue of the service of the 
 subpoena upon its superintendent and general managing agent. 
 In other words, that by such service the defendant was found 
 in this district within the meaning of the Judicial Act of 1789. 
 The force of the argument of defendant's counsel, based upon 
 a literal and rigid construction of the language of that statute 
 and of the constitution, is candidly admitted. But the Su- 
 preme Court of the United States has not so construed them. 
 If it had not done so, in no case could a corporation be a party 
 to a suit in the national courts. 
 
 The constitution of tlte United States limits the jurisdic- 
 tion of the Federal courts, so far as respects the character of 
 the parties in this jmrticular case, " to controversies between 
 citizens of different States." That a corporation can in any 
 sense be considered a citizen no one has ever claimed. That 
 a corporation is a unity,,independent of and distinct from the 
 individuals who have created it, and who are interested in it, 
 is equally well settled. 
 
 " That in a corporation all the parties are not the whole is 
 riot only true of its conduct or administration; it is also true 
 of its rights of property. Tliey are ref'eiTed, not to all the 
 members, bnt entire and undivided to the judicial person, as 
 a unity in law." 
 
 Hence for the purpose of a suit, the corporation must ap- 
 pear by its constitutional organs or curators; the appearance 
 of each and every member is no appearance at all: Bro, 
 Corporation, 28; Co. Lit, 66 b. ' 
 
 Notliwithstanding this definitive and perfectly established 
 legal status of a corporation, and of its relations to its mem- 
 bers, the Supreme Court, in the leading case of the Bank v. 
 Deveaux, 5 Cranch, 61, and in all subsequent decisions involv- 
 ing the question, has held that Federal courts will look- 
 beyond the charter to seciwhether the individual members are 
 citizens who have a right, under the constitution, to sue iii 
 
TnoEifBUfiGH V. Savage Mining Co. 685 
 
 those courts; and the court has so decided in all of these cases, 
 as will appear from an analysis of them, for the purpose of 
 advancing the remedy in the national tribunals and prevent- 
 ing a failure of justice therein, and for no other purpose. 
 
 It is a matter of regret that the briefs of the eminent coun- 
 sel in the Bank v. Deveaux, are not contained in the report of 
 that case; but we are told upon tiie authority of a contem- 
 porary, Attorney General Legare, that their great argument 
 there was, " that a corporation, not being a citizen of a State 
 under the constitution, if the court did not look beyond tiie 
 charter to the individuals who composed the company, there 
 would be a denial of justice in a great number of the most 
 important cases." And indeed that it was this view which 
 controlled the decision, is sufficiently evident from the lan- 
 guage of the great judge who delivered the opinion. 
 
 Says Chief Justice Marshall: "The duties of this court, to 
 exercise jurisdiction where it is conferred, and not to usurp it 
 where it is not conferred, are of equal obligation. The con- 
 stitution, therefore, and the law, are to be expounded without 
 a leaning the one way or the other, according to those general 
 principles which usually govern in the construction of funda- 
 mental or ot,her laws." 
 
 A constitution, from its nature, deals in generals, not in 
 detail. Its framers can not perceive minute distinctions 
 which arise in the progress of tiie nation, and therefore con- 
 fine it to the establishment of broad and genesral principles. 
 
 The judicial department was introduced into the American 
 constitution under impressions and with views which are too 
 apparent not to be perceived by all. However true the fact 
 may be, that the tribunals of the States will administer justice 
 as impartially as those of the nation to parties of every de- 
 scription, it is not less true that the constitution itself either 
 entertains apprehensions on this subject, or views with such 
 indulgence the possible fears and apprehensions of suitors, 
 that it has established national tribunals for the decision of 
 controversies between aliens and citizens of different States. 
 Aliens or citizens of different States are not less susceptible 
 of these apprehensions, nor can they be supposed to be less 
 tlie objects of constitutional provision because they are allowed 
 ■to sue bj a corporate name. That name, indeed, can not be 
 
68G Inspection. 
 
 an alien or a citizen, but the persons whom it represents may 
 be the one or tiie other, and the controversy is, in fact and Id 
 law, between those persons suing in their corporate character, 
 by their corporate name, for a corporate right, and the indi- 
 vidual against whom the suit may be instituted. Substan 
 tially and essentially the parties in such a case, where the 
 members of the corporation are aliens or citizens of a different 
 State from the opposite party, come within the spirit and 
 terms of tlie jurisdiction conferred by the constitution on the 
 national tribunals. 
 
 In Marshall v. Baltimore and Ohio Railroad Company, 
 16 Howard, 326, it is said by Mr. Justice Geiee; 
 
 " By the constitution the jurisdiction of the courts of the 
 United States is declared to extend inter alia to controver- 
 sies between citizens of different States." 
 
 The Judiciary Act confers on the circuit courts jurisdic- 
 tion " in suits between the citizens of the State where the suit 
 is brought and a citizen of another State." 
 
 The reasons for conferring this jurisdiction on the courts of 
 the United States are thus correctly stated by a cotemporary 
 writer (Federalist, No. 80): " It may be esteemed as the basis 
 of the Union ' that the citizens of each State shall be entitled to 
 all the privileges and immunities of the citizens of the several 
 States.' And if it be a just principle that every government 
 ought to possess the means of executing its own provisions by 
 its own authority, it will follow that in order to the inviolable 
 maintenance of that eqxiality of privileges and immunities, 
 the national judiciary ought to preside in all cases in which 
 one State or its citizens are opposed to another State or its 
 citizens." , 
 
 These authorities are considered sufficient, although more 
 might be cited, to show the length to which the Supreme 
 Court has felt justified in going in order to effectuate the sub- 
 stantial guaranties of the constitutioa so far as access to the 
 national courts was concerned. To secure the remedy to these 
 tribunals, it has divested a corporation of its cardinal and es- 
 sential characterfstic — perfect ideal unity. Conformably with 
 the reasons and principles whicli have influenced the Supreme 
 Court in the cases cited, it is believed that the process of this 
 coil rt can reach tlie defendant — that it may be "found" within 
 this district. 
 
Thoenbueqh v. Savage Mining Co. 687 
 
 The Savage Mining Company is a corporation organized 
 under the laws of California. The purpose and object of its 
 organization, as declared in its charter, is mining in the State 
 of Nevada. Its property, consisting of a mining claim, mills, 
 etc., is all situated in this State. Through a superintendent 
 and general managing agent resident here, it holds possession 
 of its property, makes contracts, and carries on a general and 
 extensive business. 
 
 If the defendant can not be reached by the process of this 
 court, there is an utter failure and denial of justice; for the 
 property in controversy being situated within the State, and 
 the distinction between local and transitory actions having 
 always been recognized in tlie Federal courts, none could be 
 maintained in the district of California: Conkling's Treatise 
 on United States Courts, page 172. 
 
 Thus, while the corporation, by a strained construction of 
 the constitution in its favor, is allowed free accessjto tlje na- 
 tional courts, the citizen, by a forced and narrow construction 
 of the Judicial Act, is denied all redress. 
 
 Surely, the courts will not, when, for the purpose of advanc- 
 ing the remedy and doing justice, they have opened their 
 doors to corporations, invest them in this way with absolute 
 immunity from legal procedure. 
 
 Much more reasonable is it to hold that a corporation is 
 " found " where it transacts its business through an oiBcer 
 having general charge thereof, where its property is situated 
 which may be taken on execution, where it makes its contracts 
 which are liable to be litigated. Indeed, if language is to be 
 construed as literally as counsel insist, a corporation can be 
 "found " nowhere. It is a metaphysical entity no more sus- 
 ceptible of being handled, seen or corporally touched than a 
 will-o'-the-wisp. 
 
 How could this corporation be " found " in the district of 
 California? If it be answered, by service upon some officer 
 thereof, as authorized by the statutes of that State, still there 
 would be no compliance with the literal meaning of the Judi- 
 cial Act, nor could a judgment obtained upon such service, 
 however binding upon the person of the corporation, ever be 
 enforced, because its property is all situated within another 
 jurisdiction. 
 
688 , Inspection. 
 
 So that it being actually aud physically impossible to find 
 a corporation anywhere, the question is, what will the courts, 
 animated by a desire to advance the remedy and do justice, 
 consider a " finding " of a corporation? 
 
 If it be by legal fiction that the corporation be found at all 
 it would certainly seem just and reasonable that it should be 
 found in some jurisdiction where judgment against it may be 
 enforced. 
 
 If the position taken by defendants' counsel be correct, a 
 corporation, by having its officers in one State and all its prop- 
 erty in another, could escape amenability to the process of all 
 courts. 
 
 The thirteenth section of the Attachment Law of NewHamp- 
 shire provides that " when any corporation or body politic 
 within this State shall be possessed of any money," etc. The 
 Supreme Court of that State, in 9 New Hampshire, 397, held 
 that this clause of the statute was not confined to corpora- 
 tions created by the laws of that State, but included any cor- 
 poration having property there or suable there. The clear- 
 ness and force which characterizes the opinion in that case, 
 and its general application to the question under considera- 
 tion here, justify an extended quotation from it. 
 
 Wilcox, J, 
 
 This case involves the inquiry whether a foreign corpora- 
 tion can be sued in this State. It has been held in Massachu- 
 setts (P^c^Aoot Y. North Pariah, in Haverhill, 16 Pick. 286,) 
 that a foreign corporation can not be sued in that State. Such 
 also seems to be the doctrine in New York : McQueen, v. 
 Middletown Man. Co., 16 Johns. R. 5. 
 
 The only reason given for these decisions is, that no writ 
 can, by their laws, be legally served against a corporation in 
 another State. Such process, it is said, must be served on its 
 head or principal oflicers within the jurisdiction of the sover- 
 eignty where this artificial body exists; and "if the president 
 of a bank of another State were to come into New York, his 
 functions would not accompany him when he moved beyond 
 the jurisdiction of the government under whose laws he de- 
 rived his character." The question has been adjudged in 
 
Thoenburgh v. Savage Mining Co. 689 
 
 favor of the liability of a foreiu;n corporation" in Pennsjlvania: 
 Bushel V. Commonwealth Ins. Co., 15 Ser. & Rawle, 176. 
 It has often been held that a corporation may sustain a suit 
 beyond the jurisdiction within which it was constituted. A 
 Dutch corporation was allowed to snein England: Dutch W. 
 I. Co. V. Mayes, 2 Ld. Eaym., 1535; 1 Str. 612; and the same 
 doctrine has been held more recently in regard to foreign cor- 
 porations: Chit, on Cont. 86; 1 E. & M. 190. See, also, 2 
 Eand. Eep. 465; 10 Mass. 91; 4 Johns. Ch. Eep. 370; 6 
 Co wen, 46; 17 Mass. 97. 
 
 We have also recognized the right of a foreign corporation 
 to hold estate, real and personal, within this State: l/winbard 
 V. Aldrich, 8 N. H. E. 31. 
 
 There is " nothing in the character of a corporation to pire- 
 vent its suing or being sued like a natural person. It is, in 
 legal contemplation, a person having existence, invested with 
 rights and subjected to liabilities, and very properly a party 
 to proceedings in courts of law or equity, whenever those 
 rights or liabilities are drawn in controversy." 
 
 And if, upon principles of law and' comity, corporations 
 created in one jurisdiction are allowed to hold property and 
 maintain suits in another, it would be strange indeed if they 
 should not also be liable to be sued in the same jurisdiction. 
 If we recognized their existence for the one purpose we must 
 also for the other. If we admit and vindicate their rights, 
 even handed justice requires that we also enforce their liabili- 
 ties, and not send our citizens to a foreign jurisdiction in quest 
 of redress for injuries committed here. 
 
 There may be difficulties in procuring legal service of a 
 writ upon a foreign corporation; and so, in case of an in- 
 dividual residing in a foreign jurisdiction, it may be difficult 
 or impossible to procure such service of process upon him as 
 to subject him to the jurisdiction of our courts. But in either 
 case, when the service can be made, or when the person or 
 corporation appears and submits to our jurisdiction, we see 
 no objection to the authority of the court to proceed. 
 
 If a citizen of another State is found here, and process is 
 
 served on him personally, that gives the court jurisdiction. 
 
 It may well be doubted, however, whether the casual presence 
 
 of the principal officer of a foreign corporation here and ser- 
 
 •yoii, VII.— 44 
 
690 Inspection. 
 
 vice upon liim, -would be sufiSeient. But if the corporation 
 have estate liere, or if it send its officer, upon whom, by our 
 law, process is to be served, to reside here and transact bus- 
 iness upon its account, we can not see why an attachment of 
 such estate, or service upon such officer, may not be sufficient. 
 
 The same difficulty in regard to the service of a writ does 
 not exist here as is found in Massachusetts and Kew York. 
 Our State laws, 87, provide, " that when any body, politic or 
 corporate, are sued in this State, who have no clerk or member 
 residing therein on whom service can be made, an attested 
 copy of the writ shall be delivered to the agent, overseer or 
 person having the care or control of the corporate property, 
 or part thereof, in this State." 
 
 It is objected that the thirteenth section of the act direct- 
 ing proceedings against trustees of debtors does not extend 
 to foreign corporations. That section provides that "when 
 any corporation or body politic, within this State, shall be 
 possessed of any money," etc. We are of opinion that this 
 clause of the statute is not confined to corporations erected by 
 the laws of this State; but that any corporation having any 
 property here is, within the meaning of this statute, a " body 
 politic within this State." 
 
 The whole stress of defendant's position rests upon the as- 
 sertion that it can not exist beyond the boundaries of the 
 sovereignty which created it, and authorities are cited in sup- 
 port of this proposition, which it is not deemed necessary to 
 dispute. In view of the appalling consequences which might 
 ensue therefrom, this court will hesitate long before it decides 
 that a corporation can exercise no powers beyond the State 
 ■ which charters it. Indeed that it may do so is expressly de- 
 cided in the case of Bank of Augusta v. Earle. 
 
 If the corporation exercise powers in tliis State, it must do 
 so thrdugh an officer or agent. If this officer or agent be 
 competent to represent the corporation here in making con- 
 tracts and holding property, why may he not be said to 
 represent it when the enforcement of its liabilities is sought, 
 especially when it is considered that a corporation is at best a 
 myth, can be literally found nowhere, can not, in the case of a 
 local action, be prosecuted to judgment where chartered, and 
 that even if it could be, the judgment could never be en- 
 
Thornbuegh v. Savage Minijtg Co. 691 
 
 forced aa:ainst it? The defendant makes contracts here. It 
 practically enjoys all of the privileges which could be enjoyed 
 by a natural person, inhabitant here. All this it does by the 
 permission of this State, and through the agency of an oflBcer 
 resident here, who is invested with plenary powers. In other 
 words, under the decision of the Bank of Augusta v. Earle, 
 the defendant, though a resident iu another sovereignty, may, 
 through its agents, hold property and make contracts here, 
 provided this State acquiesce in so doing. Inasmuch as this 
 State does, by acquiescence, accord to the defendant these great 
 privileges by every principle of equity, upon the occurrence 
 of litigation growing out of the exercise of these privileges 
 it should be stopped from asserting that it can not be found 
 within the State. 
 
 Yet another reason for holding the service as made to be 
 effectual upon the defendant consists in the fact that this 
 court has by rule adopted the Civil Practice Act of this State. 
 By section 29 of the act to regulate proceedings in civil cases, 
 page 318, Nevada Statutes of 1861, it is provided, that the 
 summons in an action may be served upon a corporation by 
 delivering a copy thereof to its superintendent or general 
 managing agent. In Conkling's Treatise, page 81, the author 
 says: "It is proper, however, here to observe, that there is 
 one description of cases attended by circumstances so peculiar 
 as to have been deemed sufficient to warrant a departure in 
 practice from the strict letter of this enactment. Where a 
 party residing out of the jurisdiction of the court has obtained 
 a judgment at law, which is sought to be enjoined by bill 
 in equity filed by defendant in judgment, on the equity side 
 of the court, or, where a non-resident has instituted a suit in 
 equity and a cross-bill is filed by the defendant, in such suit 
 the court, upon motion, will order that a service of the subpoena 
 upon the attorney or solicitor of such non-resident party shall 
 be sufficient." Hitner v. Suckley, 2 "Wash. C. 0. Kep. 465; 
 EaUrt V. Bamrt, 4 Wash. C. 0. Kep. 370; Ward v. Seahry, 
 lb. 426; Bead v. Consequa, lb. 174. 
 
 An examination of the case referred to and considered as 
 authority for the text, shows clearly enough that the court 
 predicated the validity of a service upon the solicitor of a 
 party neither found within nor an inhabitant of the district 
 
692 Inspection. 
 
 upon its adoption of the rules of English chancery practice. 
 Thus have tlie Federal courts kept step witli the progress of 
 the age. In order to preserve the substantial guaranties of 
 the constitution, and to prevent a denial of justice, they have 
 enlarged its terms and gone beyond its letter. They have not 
 permitted that important category of cases vs^hich embraces 
 corporations to be excluded from their jurisdiction by attacliing 
 to the word " citizen " any restricted significance. For the 
 same reasons, and to accomplish the same end, they have, as 
 has been seen, departed from the letter of the limitation im- 
 posed by the Judicial Act. They have frequently repudiated 
 the fact of the State courts being open to suitors as affording 
 any argument against their exercising, in behalf of such as 
 preferred their tribunals, a not expressly vrarranted juris- 
 diction. 
 
 In conformity with these principles a stronger case than the 
 one at bar for the exercise of the jurisdiction of this court, can 
 not easily be conceived. The case of Dwy v. The Newa/rk In- 
 dia Ruhher Manufacturing Company, 2 Blatch. C. C. K., 
 relied on by the defendant's counsel, is notconsidered in point, 
 for these reasons : First, the service in that case was upon 
 an officer of a corporation, who casually came within the j^-^ 
 risdiction — the State of New York. Second, the laws of the 
 State of New York provided no means for serving procest. 
 upon a non-resident corporation. Third, the action was 
 transitory, and no failure of justice would occur in remitting 
 the complainant to the circuit court for the district where 
 the corporation resided. In each and every one of these es- 
 sential respects that case diametrically differs from this. The 
 importance of the main question involved is perhaps a suffi- 
 cient excuse for the length of this opinion. It only remains 
 to be said that the calm and studious reflection which the prep- 
 aration of it has involved has only served to strengthen and 
 confirm my belief in the correctness of the rulings which have 
 been made in the action. 
 
Earl of Lonsdale v. Cuewen. 693 
 
 'Eael of Lonsdale v. Cdrwen. 
 
 (3 Bligh, 0. S., 168. High Court of Chancery, 1799.) 
 
 Obstrnctions— Ventilation. Order for inspection of coal mines, the de- 
 fendant being compelled to remove obstructions and to open the air 
 courses. 
 
 In this case the Ettrl of Lonsdale had filed a bill against 
 J. 0. Curwen, Esq., by which, and the affidavit of John 
 "Walker, it appeared .that the Earl of Lonsdale was seized of 
 the manors of Seaton and Stainburn, and certain closes called 
 tlie Clossoks lying on the south side of a rivulet called the 
 Mill Eace, near Workington, which divides the manors of 
 Seatou and Workington; that there were mines of coal lying 
 under the Clossoks belonging to the Earl of Lonsdale, and 
 that J. C. Curwen was seized of lands on the south side of 
 the Mill Eace, under which there were mines of coal; that 
 John Walker (who made tiie affidavit) had for several years 
 been employed by Mr. Curwen as director of his collieries 
 under ground, and in particular of that part of his collieries 
 where his coals were raised at a colliery called John Pit, and 
 from whence about five years previously, by the direction of 
 Mr. Curwen, he had caused the working of the said pit to be 
 extended and carried into and under the closes called the 
 Clossoks for the length and space of forty yards and upward; 
 and also caused large quantities of coal to be dug out and 
 taken from under the closes called the Clossoks, to the 
 amount of 600 wagons or 2,100 tons, of about the value of 
 £300 or upward; that having been directed by Mr. Curwen 
 to extend the workings further under the Clossoks, he had 
 remonstrated with Mr. Curwen against his doing so, on 
 which Mr. Curwen had engaged one Edmund Bownass, 
 who had the direction of the E. of L.'s collieries at Clifton, 
 
 ' This case and the one next following are printed as notes to the case of 
 The East India Co. v. Kynaitton, 3 Bligh, 0. S., 153, in which an inspec- 
 tion of warehouses was allowed; with the further ruling that the order of 
 inspection could not be executed by force, but by compulsion against the per- 
 son by process for contempt, if resisted. 
 
694 Inspection. 
 
 about two or three miles from Workington, to take the charge 
 and direction of the working under the Cioisoks; that E. B. 
 afterward proceeded to liave the workini^s carried on nndcr 
 tlie said closes to the extent of about 212 yards in length, and 
 in breadth to an average of about 105 yards, and that in con- 
 seqnence of sucli workings, the greatest part of the coals 
 which had been raised at the John Pit for the preceding two 
 years had been dug out of and from under the Clossokc, 
 amounting to 6,000 wagons and upward, of the value of £3000 
 and upward, over and above the £300 before mentioned; 
 that Mr. Curwen, about the 13th of August then last, gave 
 orders and directions to the workmen employed in the work- 
 ings under the said closes to rob or take away several of the 
 pillars which had been left, for the carrying on the workii»g8, 
 and which they had ever since been and then were doing, by 
 which means the workings would be destroyed, and it would 
 be rendered impossible for any person to discover the extent ot 
 the workings, or the quality of the coals dug and taken away 
 thereout; that Mr. Cnrwen, in a conversation with John 
 Walker about taking away the coals under the said closes, 
 and the danger of a discovery thereof, asked him whether he 
 (Mr. Curwen) could not drown the workings by letting the 
 water ont of his own collieries into the workings, whicli 
 would prevent any discovery thereof from ever being made, 
 which deponent said he (Mr. Curwen) might do, on which 
 Mr. Cnrwen directed him to go on ; that Mr. Cnrwen, by 
 letting the water out of his own collieries into the workings, 
 would ruin and destroy the workings of very large qnantities 
 of coal belonging to the E. of Lonsdale, to a very large and 
 ' almost inestimable amount. It also appeared by atEdavit 
 of J. B. Garforih, that the plaintiff was seized, etc., and that 
 the defendant, without permission, was then digging and 
 carrying away coal from under the lands, against the will of 
 the plaintiff 
 
 The bill prayed an injunction to restrain the defendant, 
 his servants, etc., from digging or getting coal in or under 
 any of the premises in question, or any part thereof, and 
 particularly from robbing or taking away the pillars which 
 had been left in the workings, and that the plaintiff, his, 
 etc., might be at liberty to inspect the workings of defend- 
 ant under, etc. 
 
Eakl of Lonsdale v. Curwen. 695 
 
 Upon a motion for the purpose expressed in tlie prayer of 
 tlie bill, it was ordered, that an injuuotion should be awarded 
 to restrain the defendant. Ills servants, etc., from digging or 
 getting coals in or under any of the premises in question, or 
 any part thereof, and from carrying on any workings, and in 
 particular from robbing or taking awny tlie pillars which, had 
 been left in the workings under the plaintiff's parcels of land 
 in question, until the, etc., and that the plaintiff, his servants, 
 etc., should be at liberty to inspect the workings of the de- 
 fendant under the plaintiff's inclosures called theClossoks: 
 Eeg. Lib. A, 1798, p. 
 
 By an order, dated the 7th June, 1799, reciting the foregoing 
 order of the 20th April 1799, and that it was alleged that John 
 Howard, etc., as agents on behalf of the plaintiff, on the 29th 
 of April, had proceeded to inspect the workings of the defend- 
 ant, in, etc., but were prevented from completing such inspec- 
 tion, because the pipe or air-course which conveyed the pure 
 air had been broken down or taken away, and certain earth, 
 rubbish and other impediments, were lying at the ends, roads, 
 or passages leading to the workings; and that on the 3rd of 
 May, for the purpose of making a further inspection, the 
 agents of the plaiji tiff had made a demand in writing that 
 the defendant should remove all the obstructions and impedi- 
 ments, and also given notice to the defendant that they should 
 proceed further in the inspection on the ith of May, but that 
 the defendant had refused to allow any further inspection of 
 the workings by tiie plaintiff or his agents; and that it was 
 the principal object of the suit to have the extent of defend- 
 ant's workings under the inclosures ascertained; that it was 
 prayed that the plaintiff, his servants,. etc., might be at liber- 
 ty, as often as should be necessary, to make further other in- 
 spections into the workings of the defendant, under, etc., and 
 that in order to enable the plaintiff, his, etc., so to inspect the 
 same, tlie defendant might be directed to restore the several 
 air-courses theretofore used, and existing within the colliery, 
 and to remove the earth, etc., lying at the ends, roads and pas- 
 sages leading to the workings: and that the plaintiff, his ser- 
 vants, etc., might also be at liberty to use alf necessary means 
 to ascertain the workings and the extent thereof. It was or- 
 dered that certain persons named in the order should be at 
 
696 Inspection. 
 
 liberty to view the mine, and that such persons as the viewers 
 might think proper to appoint, should attend such viewing of 
 the mine; that the defendant should cause the obstructions to 
 be removed, and open the air-courses as the viewers should 
 think necessary for such inspection; and that the viewers, and 
 such other persons as they should appoint, should be at lib- 
 erty as often as should be necessary, to make from time to 
 time inspections into the woi'kings of the defendant under the 
 premises of the plaintiff, so as to enable the viewers to make 
 a perfect and complete report of the workini^s. 
 
 No further notice of this case occurs in the register's 
 book ; and according to information communicated by Lord 
 Hedesdale, the case was compromised by the payment of a 
 large sum for the coals taken from under the grounds of Lord 
 Lonsdale. 
 
 The practice in courts of equity of granting orders for in- 
 spection of mines, machines, etc., is well settled. But no 
 notice has ever been taken of the point in the books of prac- 
 tice, and no authorities are to be found upon the subject in 
 the reports of cases in equity, except the case in the court 
 below, of Kynaston v. The East India Company, as reported 
 3 Swan, 248, and upon appeal to the House of Lords, now re- 
 ported in the text (3 Bligh,.0. S. 153), and which case, as it 
 relates to warehouses, is distinct from former anthorities and 
 new in its kind. Two cases of orders for inspection ex- 
 tracted from the register's book, are therefore subjoined.' 
 
 ' The first of these cases. Walker v. Fletcher, follows in 8 M. R. 1 ; the 
 other, Browne v. Moore, 3 Bligh, 0. S. 178, was a patent case in which a 
 party was allowed to inspect the model of the machine in controversy. 
 
INDEX. 
 
 ACCIDENT. 
 
 1. Act of God. — A guaranty that the principal shall- perfoi-m a work 
 requiring skill, includes the accidents pertaining to the business, and the 
 guarantor will be excusable only from those inevitable occurrences desig- 
 nated as the act of God. Janes v. Scott, 181 
 
 ACCOUNT. 
 
 1. It is the practice to pray an accounting with the injunction, without 
 separate suit at law for damages. Thomas y. Oakley, 255 
 
 2. Account of ore dug — Possession. — Where the bill prays an accoun'' 
 of ore dug on complainant's lands, a court of equity will decree it in* a 
 proper case but the. complainant must show that he is in possession. 
 Bracken v. Preston, 268 
 
 See iNJUNCTioir, 19. 
 
 ACKNOWLEDGMENT. 
 
 1. Form of acknowledgment. — The persons who acknowledged the 
 execution of a grant were by the commissioner certified " to be the persons 
 who executed the" deed: Held, that the certificate was a suTjstantial 
 compliance with the act under which it was taken. West Point Co. v. 
 
 528 
 
 ACT OF GOD— See Accident. 
 
 ADMISSIONS. 
 
 1. Admissions of conspirators.— The acts and declarations of one 
 of several parties acting in concert in an illegal transaction for their 
 joint benefit, are the acts and declarations of all. Burns v. McCabe, 1 
 
 ADVERSE POSSESSION. 
 
 1. Adverse possession under color of decree without deed— Temporary 
 occiqmncy, no disseisin.— In 1807 a decree was made that the holdpr of a 
 senior patent convey to the holder of a junior patent with equities, the 
 interfering ground (called an interlock) covered by both patents. No deed 
 was executed under this decree, but plaintiif went into and continued to 
 hold possession though without any actual occupation of the interlock. 
 There was no actual occupancy of the interlock until a purchaser under the 
 defendant in the decree entered and out the timber in 1836: Held, that the 
 title of the party, holding under the decree, was a complete adverse pos- 
 session to the extent of the limits of his patent, including the interlock 2. 
 That the temporary occupancy to cut timber was no disseizin. Anderson 
 V. Harvey's Heirs, 
 
698 Index. 
 
 affidavit. 
 
 1. Jurat omitted by mistake. — If an injunction bill has been actually 
 sworn to, the injunotionwill not be dismissed because the master has omit- 
 ted to sign the jurat. Capner\. Flemington Mining Co., 263 
 
 2. Chancery practice. — Upon motion for injunction complainani;. may 
 read affidavits filed before the coming in of the answer; and after 
 answer filed he may read further affidavits aa to matters of waste and 
 other collateral facts, but not on the question of title. TJ. S. v. Parrott, 
 
 335 
 
 3. Denial of equities — Affidavits. — If the answer to a bill tor injunction 
 to restrain mining upon a quartz ledge claimed by both parties, denies 
 all the equities of the bill, and the hill is not supported by affidavits, the 
 injunction must be dissolved. Eeal Del Monte Co. v. Pond M.Co.,^52 
 
 AGENT. 
 
 1. The knowledge of the agent of the vendee is as binding upon him as 
 his own knowledge. Tuck v. Downing, 85 
 
 2. Declarations of agent beyond the res gestce. — The declarations of 
 . an agent or servant are admissible against the principal only when they 
 
 form a part of the res gestce; the admission of a barkeeper as to contents 
 of package left by guest, made to third person, excluded under this rule. 
 Mateer v. Brown, 156 
 
 8, Agent applying for patent. — Though there may be circumstances 
 where an application for patent would not be advantageous to a company, 
 the mere allegation of such fact, is not sufficient. Sherman v. Clark, 483 
 
 4. Superintendent working without orders. — If a superintendent be 
 working without any control of the president or board of trustees, it does 
 not follow that the mine is being worked injuriously to the stockholders. 
 Id. 
 
 See Fkaud 1, 2, 5, 8, 29; Mbasukk of Damages, 1. 
 
 AGRICULTURAL CLAIM-See Imjdnction, 68. 
 
 APPEAL. 
 
 1. Copies required on appeal. — Sending up the original papers on 
 appeal is not to be suffered, even where there is consent. Emmons v. 
 McKesson, 409 
 
 2. Showing necessary on appeal. — To entitle an appellant to a reversal 
 of an order or judgment of a lower court he must make such an affirma- 
 tive showing as will negative at least the probability of the correctness of 
 such order or judgment, for the presumption is in favor of its regularity. 
 Lady Bryan Co. v. Lady Bryan Co., 478 
 
 See Injunction 33, 53, 119; Pleading and Pbactick, 4. 
 
 APPROPRIATION— See Highways, 4, 
 
 APPURTENANCES. 
 
 1. Ore banks passed as appurtenances. — In his declaration in par- 
 tition the plaintiff demanded "The Mount Hope Estate," setting out 
 the particular tracts and not the ore hills, but averred that each tenant 
 was entitled to one eighth of the premises with the " appurtenances " : 
 Held, that the right to the ore in the mine hills passed under "appur- 
 tenances." Grubb V. Grubb, 226 
 
Index. 699 
 
 ASSIGNMENT. 
 
 1. Assignment before garnishment.— kn attaching creditor has no prec- 
 edence over the assignee of the fund where the assignment is prior to the 
 service of the garnishment. Walling v. Miller, 166 
 
 2. Claim for trespass assignable.— A. claim for damages in trespass, 
 quarrying and tailing away asphaltum, is assignable, and the assignee 
 may sue in his own name under section 4 of the Practice Act. More v. 
 Massini, 455 
 
 BILLS AND NOTES. 
 
 1. Defense to note. — Hearsay representations, held, no defense to pur- 
 chase money note. Davidson v. Jordan, 54 
 
 2. Donee of note. — A donee takes a note subject to equitable defenses. 
 Hicks v. Jennings, 138 
 
 See Gold Dust, 6; Mbrgek, 1. 
 
 BOND. 
 
 1. Want of certainty cured by «^er*'rf.— Defects for want of certainty 
 in pleading are cured by the statute of jeofails, and where, to a declara- 
 tion on a bond, the defendants pleaded nil debet, and the verdict is that 
 the defendants owe the sum claimed and damages are assessed for its 
 detention, the finding is in effect that the bond sued 'is the bond of the 
 defendants, and that its condition has been broken, and judgment will not 
 be arrested though the plea was not the proper one. Gear v. Shaw, 643 
 See Measure of Damages, 1; Injunction Bond. 
 
 BOUNDARIES— See Posshssion, 4. 
 
 BRICK — See Injunction, 3, 116; Lease, 4. 
 
 CLAIM. 
 
 1. Status of possessory claims. — The appropriation of the public min- 
 eral lands and development of the same under the license and acquiescence 
 of the Federal and State governments considered as fixing the status of 
 mining interests in California. Merced M. Co. v. Fremont, 313 
 
 CONSIDERATION. 
 
 1. The "prospect," the inducement of purchase. — Mines are bought 
 and sold on the "prospect," not on the warranty. Tuck v. Downing, 84 
 
 CONTEMPT. 
 
 1. Proceeding in contempt to protect private rights. — Where the pro- 
 ceeding by attachment for contempt is in substance to secure the rights of 
 the party injured (as in case of defendants continuing to mine while under 
 injunction), the court regards the substance and not the form, and will 
 issue mandamus to compel the court below to inquiie into the acts charged 
 Merced M. Co. v. Fremont, 309 
 
 2. Proceedings in contempt are in their nature criminal, and the 
 strict rules of construction applicable to criminal proceedings are to govern 
 therein. VanzandtY. Argentine M. Co., 634 
 
 8. Proceedings in contempt are affected by the invalidity of the original 
 wders. Brennan v. Gaston, 426 
 
 See Injunction, 120. 
 
700 Index. 
 
 continuance. 
 
 1. Continuance not the subject of exception. — The rulinsr of the court 
 upon a petition supported by affidavit, for a continuance of a cause, upon 
 the ground tliat a suit was pending in chancery which would essentially 
 determine the rights of the parties, is a matter within the discretion of 
 the court, and is not the subject of exception or revision upon a writ of 
 error. Oear v. Shaw, 643 
 
 CONTRACT. 
 
 1. Situation of contracting parties. — The situation of the parties at 
 the time of entering into contract relations may be considered by the 
 court in interpreting their acts. Creighlon v. Vanderlip, 172 
 
 2. " Well and faithfully perform.''' — A contract guaranteeing the 
 faithful performance of a contract is not a mere guaranty of the skill 
 and fidelity of the principal. Janes v. Scott, 181 
 
 CONVEYANCE. 
 
 1^ Deed to associates in corporate name — Bescission.— 'Barns contracted 
 for the purchase of a piece of oil land and sold an interest or share in the ad- 
 venture to plaintiff. Afterward he had a deed executed to " The Middle- 
 town Oil Company," no such company having been incorporated. Plaint- 
 iff sued to recover the money advanced for his share, on the ground of 
 misrepresentation: Held, that the deed to the Middletown Oil Company 
 passed no title for want of a proper grantee, and that therefore no tender 
 of deed of his interest from plaintiff was necessary to perfect a rescission. 
 Burns v. McCabe, 1 
 
 2. Deeds of same date construed together. — The devisees of the senior 
 patent made on the same day two deeds to the same grantees, in one of 
 which the ground covered by the decree was excepted and in the other it 
 was not: Held, that the two deeds were to be construed as one trans- 
 action and their effect was the same as if the exception had been mentioned 
 in both. Anderson v. Harvey's Heirs, 291 
 
 See AcKNOWiiKDGMENT; Dbsokiption, Ij Evidence; Incobpokeal 
 Hereditaments, 2; Pleading and Pbactick, 7; Tender, 1. 
 
 CORPORATION. 
 
 1. Good faith required betiveen associates — Each person engaged 
 in a common enterprise has a right to expect from his associates good 
 faith in all that relates to the common interest, and if a party pretending 
 to be a purchaser in common with others, be in reality the seller, he raust 
 account for the difference between what the property cost him and the 
 price he received for it. Getty v. Devlin, 29 
 
 2. Railroad directors and the coal supply of the road. — The contract 
 between the TJ. P. railroad and Wardell et al., giving them the exclusive 
 right to mine the coal on the company lands and the exclusive supply 
 of coal to the railroad lines, which contract had been assigned to a com- 
 pany controlled by the directors of the railroad company: Held, fraudu- 
 lent and void. 'Wardell U. P. R. R. Co., ' 144 
 
 3. Attempt to restrain increase of shares through foreign legislature. 
 — A company incorporated in California was doing business there, but 
 most of its shareholders were resident in England. At a meeting of the 
 
Index. 701 
 
 CORPORATION. Continued. 
 English shareholders a resolution passed authorizing the trustees to take 
 steps for increasing the preference shares to an extent not allowed by the 
 existing charter. It appeared there was no intention to create preference 
 shares except upon action of the California legislature : Held, that an 
 injunction ought not to be granted to restrain the company from acting 
 on the resolution, for that the court will not in general restrain parties 
 from applying to the legislature, whether of this or of a foreign country. 
 Bill V. Sierra Nevada M. Co., • 413 
 
 4. Misuse of cbmpany funds. — Charging the superintendent with de- 
 positing the company funds with a mercantile house instead of in a bank, 
 and with refusal to pay claims against the company, can not be considered 
 breaches of duty when unaccompanied by special allegations showing it to 
 be his duty to do otherwise. Sherman v. Clark, 48S 
 
 5. Trespass not excused hy plaintiffs incapacity. — One who has tres- 
 passed upon water rights acquired by a mining company will not be al- 
 lowed to defend. on the ground that the mining company had no legal ca- 
 pacity to acquii-e water rights. As between the party despoiled and the 
 wrongdoer the courts will not enter upon this inquiry. Cole Co. v. Vir- 
 ginia Co., 503 
 
 See Agent, 4; Fraud, 83, 34; Jurisdiction, 4, 5; Personal Liabil- 
 ity; Prospectus. 
 
 COSTS. 
 
 1. Costs do not follow the decree, the successful parties being blama- 
 ble. Irwin v. Davidson, 237 
 
 COVENANT— See Lease. 
 
 CUSTOM. 
 
 1. Custom in violation of steto^e.— Constructive possession of public 
 lands in Nevada can only be had by compliance with the Possessory Act of 
 that State, and no custom of holding lauds in direct violation of the 
 statute will be recognized. Rivers v. Burbank, 584 
 
 DESCRIPTION. 
 
 1. Identity of mines shown hy parol.— Where there is a grant of mines 
 under farms, the identity of the mines is a question of fact, and may be 
 decided by evidence dehors the deed. Field v. Beaumont, 257 
 
 DISTRICT RULES. 
 
 1. The reserving clauses in the act as to " regulations " to be prescribed, 
 and " local customs " explained and restricted. Robertson v. Smith, 196 
 
 See Custom. 
 DITCH— See Injukction, 113, 114. 
 DRAINAGE— See Easement, 2. 
 
 EASEMENT. . , t, *v. 
 
 1. How acquired.— kn easement in land can only be acquired by the 
 consent or acquiescence of the owner. Thorn v. Sweeney, 564 
 
 2. Easement to drain lands may not he abused.—" The owner of upper 
 lands who has for more than five years enjoyed the undisputed privilege 
 of running the waste waters used from artificial sources for the purpose of 
 
702 Index. 
 
 EASEMENT. Continued. 
 irrigating his land," does not thereby acquire an easement by prescription 
 • to run the same over the lower lands in such unreasonable manner as to 
 damage a drain ditch constructed on the lands below. Blaisdel v. Steph- 
 ens, 599 
 
 EJECTMENT. 
 
 1. Ejectment maintainahle on receiver's receipt. — In actions between 
 individuals the receipt of the receiver of a land office is, under the statute, 
 sufficient legal evidence of title, though as between the holder of it and 
 the government, the legal title still remains in the United States. 
 Bracken w.' Preston, 268 
 
 2. A party in possession ought not to be compelled to bring qect" 
 ment. Munson v. Tryon, 469 
 
 See Injunction, 2, 7, 26, 49, 81, 89, 90; PiiEADisro and Practice, 11. 
 
 EMINENT DOMAIN. 
 
 1. Taking property without compensation enjoined. — Private prop- 
 erty can not be taken for public use for the construction of a highway, 
 in a Territory in which there are no statutes providing for the payment of 
 a just compensation for the property taken, and an attempt so to do will 
 be restrained by injunction. Robertson v. Smith, 196 
 
 2. Condemning land for bringing water to towns. — It is within the 
 power of the legislature to pass an act for the condemnation of land for 
 the purpose of bringing water into cities and towns. Such a taking would 
 be for a public use within the meaning of that term as used in the con- 
 stitution. Thorn v. Sweeney, 564 
 
 EQUITY. 
 
 1. Equity will not try title. — A court of equity will not try the legal 
 rights of parties to real estate. Irwin v. Davidson, 237 
 
 See Pleading and Practice, 5; Verdict, 1, 2. 
 
 ESTOPPEL. 
 
 1. Rescission effects an estoppel. — PlaintifPs only interest in the land 
 could be by virtue of his membership of the company. If his membership 
 in the company was repudiated by a rescission of the contract he would be 
 estopped to claim as a member of the company. Burns v. McCabe, 1 
 
 EVIDENCE. 
 
 1. Collateral recitals in deed as evidence in partition. — ^The deed from 
 Clement to Alfred recited that Clement held the said land in common with 
 Edward. In an action of partition by the heirs of Edward against Alfred, 
 held, that the deed was prima facie evidence for plaintiff of the title of 
 Edward's heirs. Grubb v. Grubb, 226 
 
 See Admissions; Agent, 2. 
 
 EXCEPTION— See Reservation. 
 
 EXPERT. 
 
 1. Weight of evidence. — The evidence of persons not familiar with 
 mines contrasted with that of experienced miners. Tuck t. Downing, 84 
 
 FLOODING— See Injunction, 114, 117. 
 
Index. 703 
 
 forfeiture. 
 
 1. Forfeiture not enforced in eguity. — If a grantee has violated his 
 tenure or his covenants, e. g., if he has undertaken to divide into severalty 
 that which he could only hold as an entirety, he has lost all; but even 
 then a chancellor would send the grantors to law to enforce the forfeiture. 
 But there being no violation, either of tenure or covenants, there is, 
 therefore, no forfeiture to enforce either at law or in equity. Funk v. 
 Haldeman, 203 
 
 FRAUD. 
 
 1. Fraud of agent against stranger of no avail to principal. — Where 
 a contract is valid in its inception, subsequent fraudulent conduct of one 
 
 . of the contracting parties toward a stranger, involving the same subject- 
 matter, does not avoid the contract, especially when the stranger is not 
 seeking relief. Hardy v. Stonehraker, 10 
 
 2. Facts of the case — Agent to consummate fraud, allowed his hire. — 
 A agreed with B to let him have $3,000 if he, B, would procure a purchaser 
 of A's lead land at $8,000. He procured a purchaser at this price by 
 fraudulently concealing the fact that he was A's agent, and fraudulently 
 advising the purchaser, as a friend, that the land was worth $8,000 and 
 could not be bought for less, ifrhich was not the truth. But the purchaser 
 sought no relief. Held, that the original contract, although the commis- 
 sion was largej was not void, aod that B could make no ase of the fraud 
 of his agent in procuring a purchaser, as a defense to his agreement, to 
 pay the $3,000 commission. Id. 
 
 8. No rescission between vendor and vendee, both concealing their 
 opinions of the real value. — The vendor, a dealer and speculator in iron 
 mines, had discovered iron ore upon certain lands and had procured title 
 to them on this account. The vendees, scientific men, had been upon the 
 lands and discovered that this same ore was of peculiar quality and was 
 of great value. Negotiations were opened for purchase. Vendees pre- 
 tended that they wished the lands on account of the timber on them. 
 Vendor represented that it was also valuable for iron, and sold it at a 
 price much more than it was worth for timber — much less than it was 
 worth for iron. Held, that vendor had no case to set aside the sale. 
 Williams v. Spurr, 17 
 
 4. Sale by subscription headed by decoy stibscribers.— Certain owners of 
 oil interests prepared a subscription agreement, by which each subscriber 
 was to pay the amouat set opposite his name, toward the purchase of 
 the property, which was to go to a corporation to be organized. Each 
 owner subscribed $5,000, and caused others to sign these subscriptions 
 which were marked paid, but were not in fact intended to be and never 
 were paid. Plaintiffs, with others, believing these subscriptions bona 
 fide, subscribed and paid their money to one of the owners, who divided 
 it with his co-owners. The corporation was organized and stock issued. 
 Held, that the subscription paper was a fraud upon all the signers who 
 had paid upon it, and that the associates in the scheme (the origina 
 owners) were at least liable to account to the bona fide subscribers for thei' 
 profits on the sale to the corporation. Getty v. Devlin, 29 
 
 5. Misrepresentations by corporate agent do not bind or affect th 
 
704 Index. 
 
 FRAUD. Continued. 
 offlcera of the corporation in their individual capacity, so as to impose lia- 
 bility upon them in an action where they are sued personally. Arthur v. 
 Griswold, 46 
 
 6. False representations must he inducing cause. — False representa- 
 tions, such as make corporate officers personally liable to a person advanc- 
 ing money on them, must not only be false to the knowledge of the parties 
 making them, but must be the inducing cause to the person parting with 
 his property. Id. 
 
 7. Hearsay representations of effZwe.— Representations of the value of 
 a mine made by vendor upon hearsay, and known by vendee to be hear- 
 say, can not be said to be false or fraudulent, unless the vendor knew or 
 had reason to believe them to be untrue. Davidson v. Jordan, 54 
 
 8. Fraud of agent unknown to principal. — If an agent effect a sale by 
 false representations or other fraud, which false representations or fraud 
 are unknown to his principal, the legal status of the latter is just the same 
 as if the false representations or fraud had been made or done by himself. 
 Law V. Grant, 56 
 
 9. False representations made hy stranger. — A vendor making a sale 
 induced by the false representations of a third party to the knowledge of 
 the vendor, is responsible for the fraud, although the party making the 
 false representations was not his agent; but where the sale is made with- 
 out the vendor's knowledge of the fraudulent representations having been 
 made, the consequences can not be charged to the vendor, and the sale 
 will stand. Id. 
 
 10. Idem. — The fact that false representations made by a stranger 
 induced the sale, the stranger having no motive in the transaction, unless 
 he was to be paid out of the proceeds, might induce a presumption of 
 agency ; but such presumption can not be indulged if the conduct of 
 such stranger can be accounted for on an hypothesis consistent with the 
 vendor's innocence. Id. 
 
 11. Facts of the case — Purchase advised hy spiritual medium and 
 witch-hazel wizard. — Plaintiff sold defendant land for $40,000, of which 
 125,000 was secured by mortgage. The tract was worth about one third 
 the purchase money. Defendant had been induced to purchase npon 
 extravagant assurances of the existence of mineral, although after much 
 expenditure no mineral at all was found to exist on the land. These 
 representations were made by a party who professed to be able to detect 
 the presence of mineral by the " impressions produced by passing over 
 the place," and a spiritual medium had advised the purchase. The 
 vendor, from the evidence, appeared to have known of the influences at 
 work upon the purchaser, and to have taken advantage of them to ask 
 an extravagant price for the land, but aside from this no fraud was 
 brought home to the plaintiff. In suit to foreclose the mortgage it was 
 held, that these facts did not constitute a defense. Id. 
 
 12. Sole inducement. — The false statements relied on to sustain the 
 action need not have been the sole inducement to the purchase. Morgan 
 v. Skiddy, 74 
 
 13. Lode extension.— The prospectus represpnted the Bates lode as 
 
Index. 705 
 
 FRAUD. Continued. 
 parcel of the property of the company, when in fact the company only 
 held a piece of property located as an extension of the Bates lode. Held, 
 a material misrepresentation. Id. 
 
 14. Fluctuations of mining property, considered with reference to dis- 
 proportion between original price of the mines and the subsequent valua- 
 tion for stocking purposes. Id. 
 
 15. Use of name of trustee. — The mere allowance of the use of a party's 
 name as trustee of a company whose stock afterward proves to be worth, 
 less, is not sufficient to maintain an action charging personal liabilitv- 
 without proof of knowledge of such ?act or of any false representations. 
 Id. 
 
 16. Misrepresentations immaterial or not relied on. — To justify a court 
 of equity in rescinding a sale, it is not only necessary to establish the fact 
 of misrepresentations by clear proof, but they must be upon a material mat- 
 ter; if upon an immaterial thing, or if the other party did not trust to it, 
 or upon a matter of opinion or fact equally open to the inquiries of both 
 parties, in regard to which neither could be presumed to trust the other, 
 there is no reason for equity to grant relief on the ground of fraud. Tack 
 V. Downing, 83 
 
 17. Latitude alTowed vendor. — A vendor trying to sell his own property 
 has a right to " puff " it in the most extravagent terms, the other party 
 being at full liberty to exercise his own judgment about it. Id. 
 
 18. Misrepresentation as to price paid. — The vendor of a mine repre- 
 sented that he had paid, or was under obligations to pay, $40,000 for it. 
 At the same time he exhibited a deed to himself, expressing a considera- 
 tion of but $9,000. Held, 1. That a false statement of the price paid is 
 not of itself a material representation. 2. That in connection with the 
 exhibition of the deed it could not have misled. Id. 
 
 19. Purchase after inspection. — On a bill to set aside a purchase of an 
 interest in a mine in Utah, sold in Pennsylvania, on the ground of fraud- 
 ulent' misrepresentations as to the quality and prospects of the mine, it ap- 
 peared that on the representation of the vendor a committee had been se- 
 lected, who had personally examined the mine, on the report of which 
 committee the sale was consummated: H^ld, that any extravagant rep- 
 resentations of the vendor could only be regarded as the expression of 
 an opinion about a matter of which the committee could judge for them- 
 selves, and that they formed no ground for setting aside the contract. 
 Id. 
 
 20. Matters of opinion. — Where the representations complained of are 
 necessarily mere matters of opinion as to the future prospects of a mine, 
 the rule, caveat emptor, applies, and the sale will not be set aside whether 
 the vendee has or has not availed himself of an opportunity to examine 
 the premises. Id. 
 
 21. "Jumped" claim — General allegations of fraxid, in pleadings, 
 not sufficient. — Plaintiff's petition stated that the defendant had falsely 
 and fraudulently represented that he, the defendant, had "jumped" a 
 certain claim in Deadwood, "whereby he was at that time the lawful 
 owner thereof, according to the mining laws of said district, all of which 
 
 VOL. VII. — 45 
 
706 Index. 
 
 FRAUD. Continued. 
 statements," etc., were false and fraudulent; and upon such false repre- 
 sentations had sold his interest in the claim to the defendant : Held, 
 that while a contract procured by fraud may be rescinded at the election 
 of the injured party, a general allegation of fraud is not sufficient ; the 
 particular circumstances which constitute the fraud must be stated ; the 
 allegation that defendant was not at any time the " lawful " owner, 
 according to the mining laws of said mining district, is not such a state- 
 ment of facts as would authorize a rescission. Arnold v. Baker, 111 
 
 22. False pretense of irrigating facilities— Appurtenances — Con- 
 structive admissions in pleading. — Defendant had sold to plaintiff a 
 ranch. Plaintiff brought action for damages, alleging that defendant 
 had represented that all the waters of Thomas creek •' belonged to him 
 to use and appropriate as his own." Defendant denied making the repre- 
 sentations, and further averred that the deed executed to consummate 
 the sale did not convey any water rights, either in the description or under 
 the word " appurtenances." Held, that this latter defense was an admis- 
 sion by the defendant that the waters of Thomas creek were not appur- 
 tenant to the ranch, and precluded him from showing that plaintiff had 
 lost the use of the water through the trespasses of other parties in divert- 
 ing it. Banta v. Savage, ' 113 
 
 2.3. Materiality — Opinions — Facts. — False representations do not 
 amount to fraud unless they are made as to material facts, nor do 
 opinions expressed make a party liable ; whether statements were intend- 
 ed as matters of opinion or as averments of facts is for the jury. Id. 
 
 24. Conversations and conduct. — ^The defendant had taken plaintiff 
 over the land, crossed the streams in controversy and the ditch, impress- 
 ing the fad that the irrigation facilities were complete : Held, that the 
 conduct, as well as the conversations, was to be considered by the jury in 
 determining the question of fraud. Id. 
 
 25. Caveat emptor not applied to active fraud. — A vendor may be 
 silent and be safe; but he may not by acts or words lead the buyer astray. 
 Id. 
 
 26. Sellers pretending to he buyers. — Owners of land who procure a 
 sale by falsely pretending that they are joint purchasers with others, all 
 subscribers to a common scheme, are liable in equity to account to the 
 real purchasers for the profits realized by the sale over and above the 
 original cost. Getty v. Devlin, 119 
 
 27. Decoy suhseriplion — Parties to hill for accounting. — Where such 
 sale was effected by the owners joining with others as common subscrib- 
 ers, the owners marking their own subscriptions and certain decoy sub- 
 scriptions as pail, while in fact the only money really paid was by the sub- 
 scribers who were ignorant of the facts, it was held, that all the subscrib- 
 ers were proper parties U> the suit for an accounting; and that the action 
 in the name of two of the bona fide subscribers in their own right and as 
 assignees of other bona ftde subscribers against the ownei-s of the property 
 and all the other snbs.ribers, both bona fide and fictitious, as defendants, 
 should be sustained; but that if the claim were to recover the gross 
 amount paid by the subscribers there would be a misjoinder. Id. 
 
Index. 707 
 
 FRAUD. Continued. 
 
 28. Associates in fraud liable for each other''s receipts. — One of the 
 owners having received all the subscription money and divided it among 
 hia associates, it was held, that his legal representatives vfere liable, not 
 only for the proportionate share retained by him, but for that distributed 
 among his associates. Id. 
 
 29. Agent dealing on two contracts — one on which to sell, the other on 
 which to settle — Duress. — An agent for the purchase of a mine took from 
 the owners two title bonds. One represented tlie terms of sale as $lj500 
 cash, and $4,000 to come out of the proceeds of working. The other 
 called for $4,00p cash, and $4,000 out of the proceeds. The sale was con- 
 summated between the agent and the seller on the first bond, but the 
 agent had procured from his principal the $4,000 cash, representing the 
 sale to be on the latter, and concealing the existence of the former bond. 
 Upon discovery of the fraud he gave a secured note to his principal for an 
 agreed balance. In the settlement the principal told him he was liable to 
 prosecution for fraud: Held, that the original transaction was a fraud up- 
 on the principal: 2, that there was no duress in the settlement, and, 3, 
 that it was not a case where the court would inquire whether the precise 
 sum mentioned in the note was the sum due. Jackson v. Allen, 127 
 
 30. Cancellation of fraudulent corporate lease. — Where the directors 
 of a mining corporation made a lease of the mines of the company to a 
 nominal party acting in the interest of a minority of the stockholders, for 
 the purpose of securing control of the property, and to take it out of the 
 reach of the new board about to be elected: Held, upon bill filed by the 
 corporation, that the lease should be canceled. Mahony M. Co. v. Ben- 
 nett, 133 
 
 31. Defense of fraud where land was sold in parcels. — Several tracts 
 of mining land were sold under one' contract, but separate deeds naming 
 distinct considerations were given for each tract: Held, that fraud and 
 want of consideration in the sale of one tract could be set up as a defense 
 in a suit to foreclose a purchase money mortgage upon another of such 
 tracts. Hicks v. Jennings, 138 
 
 32. Defense runs against heirs.— K-adi that such defense could be set 
 up against the heirs and distributees of the mortgagor where such mort- 
 gage had been transferred to them as an advancement. Id, 
 
 33. Private interest of directors subservient to official duly. — The 
 directors of a corporation are subject to the obligations which the law 
 imposes upon trustees and agents. They can not, therefore, with respect 
 to the same matters, act for themselves and for it, nor occupy a position 
 in conflict with its interests. Wardell v. U. P. R. R. Co., 144 
 
 34. Credit mobilier contract not en/orced.— Applying this rule, a court 
 will refuse to give effect to arrangements by directors of a railroad com- 
 pany to secure, at its expense, undue advantages to themselves, by form- 
 ing, as an auxiliary to it, a new company, with the understanding that 
 they or some of them shall become stockholders in it, and then that 
 valuable contracts shall be given to it by the railroad company, in the 
 
 ■ profits of which they, as such stockholders, shall share. Id. 
 
 See Corporations, 1, 2, 4; Gold Dust, 3, 4; Injunctions, 111; 
 Personal Liability, 2; Prospectus; Rescission. 
 
708 Index. 
 
 GIFT— See Bills and Notes, 2. 
 
 GOLD DUST. 
 
 1. Gold dust left with innkeeper. — An innkeeper, like a common car- 
 rier, is an insurer of the goods of his guest, and is accountable in case of 
 either theft or robbery — but he is so liable only when the goods are de- 
 posited with him by travelers in the character of guests of the inn. 
 Maieer v. Brown, 156 
 
 2. Oarnlehment of bailee of amalgam for coining. — Defendants, ex- 
 pressmen, received a lot of amalgam to take to the mint and have con- 
 verted into coin. It belonged to five owners, one of whom. Carpenter, as- 
 signed his interest to the plaintiff. Defendants, after the assignment, but 
 before they had notice thereof, were garnished on behalf of a creditor of 
 Carpenter, on which garnishment they paid his share of the money. Be- 
 fore payment they had notice of the assignment; Held, that the assign- 
 ment was valid; that Carpenter had no exclusive interest in any part of 
 the coin until it was converted into coin and divided; that his right was a 
 chose in action, which he could by an order assign, and that the Statute 
 of Frauds, requiring delivery of possession, had no application to such a 
 case. Walling v. Miller, 165 
 
 3. Surreptitious carriage of gold dust. — If a passenger surreptitiously 
 introduce into a coach an article of great value (gold dust) with the view 
 of getting it carried for nothing when the carrier is accustomed to charge 
 for such service, he is guilty of a gross fraud, and in case of loss can no-, 
 recover. Hellman v. Holladay, 168 
 
 4. Contract, after fraud known. — But if, notwithsfanding the passen- 
 ger's intention to defraud him, the carrier, after leaiTiing of the fact, charges 
 and the passenger pays for carrying the article as extra baggage all 
 the charges usual therefor, then the carrier is liable for the value of the 
 article, if lost. Id. 
 
 5. Proof of freight paid. — It is for the jury to determine whether the 
 carrier received -the compensation knowing the baggage to contain gold; 
 and if he did he is liable for it without regard to the rates charged. Id. 
 
 6. Contract subsequent to note. — ^An agreement reducing the rate of 
 interest on a note payable in gold dust, extending time of payment and 
 setting apart property to secure such payment: Held, no merger of the 
 original contract to pay the gold dust. Creightonv. Vanderlix), 172 
 
 GUARANTY. 
 
 1. Previous suit against principal. — Defendant guaranteed that Burke 
 should fulfill a contract for sinking an oil well. Burke did not fulfill the 
 contract. It was not necessary to liquidate the damage against Burke be- 
 fore proceeding on the gnaranty. Janes v. Scott, 181 
 
 2. Insolvency of principal. — Where the principal is , insolvent at 
 the maturity of the debt, neither judgment and execution, nor demand 
 upon him, nor notice of non-payment to the guarantor, are necessary be- 
 fore suing the latter. Id. 
 
 GUARDIAN AND WARD. 
 
 1. Fair mining securities allowed.— Creiit allowed for an investment 
 by a guardian in a loan of a corporation owning coal lands and a canal, 
 
Index. 709 
 
 GUARDIAN AND WARD. Continued. 
 and chartered to carry on the business of mining, shipping and carrying 
 coal — the company being considered at the time to be safe and the prac- 
 tice of investing therein common ; though in three years and ten months 
 thereafter they were obliged to suspend p lyment of interest by reason of 
 inundations which destroyed their canal. Ogle's Estate, in re, 189 
 
 HIGHWAYS. 
 
 1. If fee vested in the authorities, they hold the minerals. — Where 
 the fee simple in the town streets, and not a mere easement for purposes of 
 the public, is vested in the trustees of a town, they are the owners of the 
 coal underneath such streets. Hawesville\. Hawes, 193 
 
 2. Legislature may vest the fee of streets. — It is competent for the 
 legislature, with the assent or procurement of the owner of the soil, to 
 vest the absolute title to the ground covered by the streets in the trustees 
 of the town, and the act incorporating the town of Hawesville had this 
 effect. Id. 
 
 3. Right of way over mining claims— Act of Congress construed. — 
 The defendants, as county commissioners and road supervisors, undertook 
 to lay out a highway across the mining claims of the plaintiffs under the 
 act of Congress of July 26, 1866, which provides " That the right of way 
 for the construction of highways over public lands not reserved for public 
 uses is hereby granted." The same act grants the right to explore and 
 occupy the public mineral lands subject to local rules, etc. Held, that the 
 plaintiffs, being in possession, are presumed to hold in accordance with 
 such local rules; that their rights having become vested by virtue of the 
 grant contained in said act of Congress, their mining claims are no longer 
 to the full extent public lands; and that neither the defendants, the Terri- 
 tory nor the general government could, devote this ground to the use of a 
 highway without giving the plaintiffs a just compensation for all the dam- 
 age done their rights. Robertson v. Smith, 196 
 
 4. Prior in time, prior in right, applied to highways. — One who lo- 
 cates a mining claim on the public domain does not do so subject to the 
 right of thei public to construct a highway over the same. The proper 
 construction is that miners have a right to occupy the public mineral 
 lands, and the public have a right to an easement for a highway over the 
 public domain, and whichever is prior in time is prior in right. Id. 
 
 5. Right of way—Stone. — A gift of the right of way (the right to open 
 a public street) is ndt a gift of the rock and other materials within the 
 boundaries of the way. Smith v. City of Rome, 306 
 
 INCORPOREAL HEREDITAMENTS. 
 
 1. Construction of complicated oil land contract — I'yicense made exclu- 
 sive and irrevocable by the contract of the parties. — McBlheny, being the 
 owner of a farm composed of land in Cherry Tree and Complanter town- 
 ships, in consideration of $200, granted to Funk, his heirs and assigns, 
 the free and uninterrupted privilege to go upon a tract of said land in 
 Complanter township for prospecting, boring, etc., and taking any oil, 
 salt, coal etc., out of the earth; Funk to have the exclusive use of one acre 
 of land around each pit or well, with free ingress on said land in common 
 with McElheny; Funk diligently to search for oil, etc., and give McElheny 
 
710 Ijntdex. 
 
 INCORPOKEAL HEREDITAMENTS. Contimied. 
 one third of all taken out, MoElheny reserving the right of tillage. Mc- 
 Elheny afterward conveyed to Haldeman all his farm subject to the agree- 
 ment with Funk. Haldeman afterward agreed with Funk that his rights 
 should include all lands in Cornplanter township (reserving a strip of 
 ground), giving to Funk the right to transfer in whole or in part to others, 
 and afterward granted to Funk the same rights in the Cherry Tree trict 
 which he had in the Cornplanter. 
 
 Held, 1. The conveyance gave Funk an incorporeal hereditament in 
 fee, which would have been indivisible at law, but was made divisible by 
 the grants, and this interest wliich would also at law have been held in 
 common with his grantors was made exclusive in Funk by the terms of the 
 grants. 
 
 2. The grantors have no mining privileees. and can have none until 
 Funk shall forfeit his rights by breach of covenant. 
 
 3. The grants to Funk did not amount to a lease, nor a sale of the land 
 or the mineral ; no estate in the soil or minerals was granted. The right 
 granted to Funk was to prospect for oil, extract and take it, rendering one 
 third to the landlord. 
 
 4. Funk's right was a license to work the land for minerals, coupled 
 with an interest revocabje only for breach of covenant. 
 
 5. The $203 paid was the consideration for the light of entry or privi- 
 lege to bore for oil; the royalty was the consideration for the oil when 
 found. Funk v. Haldeman, 203 
 
 2. Grant of iron ore limited to a certain furnace, construed to create 
 an incorporeal hereditament. — Clement and Edward Grubb owned in 
 common "The Mount Hope Estate," which consisted of several tracts of 
 land, and one sixth of "three certain mine hills, known as Cornwall ore 
 banks." Clement conveyed to Alfred his half of "The Mount Hope 
 Estate," designating the particular tracts, together with the right, "so 
 far as the said Alfred's right under this conveyance in said Mount Hope 
 furnace is concerned, of the said Clement to raise, for the use of said 
 furnace, iron ore out of three certain mine hills, etc , known as the Corn- 
 wall ore banks, etc., but for so long and such time only as said furnace 
 can be carried on, etc., by charcoal." Held, that this conyeyance granted 
 to Alfred a limited privilege to take ore, and did not convey the corporeal 
 estate in the mine hills; that remained in Clement. Grubb v. Grubb, "226 
 
 INFANT. 
 
 1. Majority of female infant. — A female infant, by statute of Colo- 
 rado, attains her majority at eighteen, and at thsit age she may execute a 
 promissory note. Jackson v. A lien, ■ 127 
 
 INJUNCTION. 
 
 1. Exceptionalnatureof mines, timber, etc. — The general rule is that 
 a court of equity tabes no jurisdiction in cases of mere trespass, not even 
 by granting a temporary injunction. But there is an established excep- 
 tion in the cases of mines, timber, and the like, in which cases injunc- 
 tions wil 1 be granted to restrain the continued commission of acts by which 
 the substance of the estate is destroyed or carried off. Irwin v. Davidson 
 
 237 
 
Index. 711 
 
 INJUNCTION. Continued. 
 
 2. Plaintiff must support bill by ejectment. — The plaintiff seeking an 
 injunction as the legal owner of property must showtliat he has estab- 
 lished his legal title by the judgment of a coutt of law, or that he is pros- 
 ecuting his suit at law, and that the injury which he will sustain by the 
 acts of the defendant before he can obtain judgement will be irreparable; 
 and, in the latter case, the court in con inuing the injunction must make 
 such order as will insure a speedy determination of the suit at law. Id. 
 
 3. Lessee enjoined from converting the soil into brick. — Lessee for 
 years, though without impeachment of waste, may not destroy the land to 
 the injury of the reversioner. Injunction issued to prevent the taking of 
 the clay for brick. Bishop of London v. Web, 247 
 
 4. Parties. — Tenant for life having made a lease of coal mines, 
 amounting to a forfeiture, can not join the remainderman in a bill for an 
 injunction. Wentworth v. Turner, 249 
 
 5. Trespass enjoined as well as waste. — Injunction where the defend- 
 ant, having begun to take coal from his own land, had worked into that 
 of plaintiff. Mitchell v. Dors, 250 
 
 6. Injunction against opening a mine may be granted when the 
 ■ working of a mine already opened would not be restrained. Grey v. 
 
 Dake of Northumberland, 250 
 
 7. No injunction without speedy trial at law. — Where the title is un- 
 settled, an injunction will not be continued where no mean^ of insuring a 
 speedy trial can be assured. Grey v. Duhe of Northumberland, 251 
 
 8. Removing stones from sea-bottom enjoined. — Upon a bill, praying 
 for an account and for an iiy unction to restrain a trespass in the nature 
 of waste, brought by the lord of the manor and his lessees against the 
 defendant for taking stones, having a peculiar Value, from the bottom of 
 the sea, within the limits of the manor, the Lord Chancellor granted the 
 injunction until answer pr further ord^^r. Cowper v. Baker, 253 
 
 9. Jurisdiction — IVaste and trespass. — The jurisdiction of chancery 
 to restrain by injunction and to compel an account, in cases of the destruc- 
 tion or taking away of the substance of the estate, is no longer restricled 
 to waste, but is extended to trespass. Thomas v. Oakley, 254 
 
 10. Abuse of pWtiHeij'e.— Injunction issued to restrain the unlimited 
 taking of stone by defendant, who had a restricted right to take stone for 
 certain uses in connection with certain lands. Id. 
 
 11. Quarries. — If chancery will restrain by injunction, trespass com- 
 mitted in mining ore or coal, it will give the same relief against quarrying 
 stone. No distinction on the question of comparative value can be made. 
 Id. 
 
 12. Injunction prevented by laches —To stop the working of ^ coal 
 mine is a serious injury, and when it has been allowed to be worked for 
 eight years, the expenditure is an equitable ground to prevent the hasty 
 interference of the court. Field v. Beaumont, 2hl 
 
 13. Injunction sought by party refusing to produce documents. — 
 Whether, alter a verdict at law in trespass, the court would grant an 
 iniunction in favor of parties who, at the trial, had refused to produce 
 documents essential to a just decision, doubted. Id. 
 
712 Index. 
 
 INJUNCTION. Continued. 
 
 14. Waste on mortgaged, mine. — Capner Bold his farm to a mining 
 company by articles in which the p.iyment of certain installments of pur- 
 chase money was secured by a clause to the eifect that he should have all 
 the remedies of a mortgagee. ,In other clauses the fact of the sale being 
 for mming purposes appeared. The render sued to foreclose, and prayed 
 for an injunction to stay waste, and on appeal it was held, that the in- 
 junction should have been refused so far as it affected the cutting o/ 
 necessary timber and the digging of shafts, etc., for mining purposes, such 
 acts not being waste, but was proper to preveilt the removal of buildings 
 and fences, etc., done to injure and harass the complainant- Capner v. 
 Fleminffton M. Co., 26a 
 
 15. Notice of application — Discretion. — The operations of large mining 
 companies should not be arrested by injunction without notice, except in 
 very plain cases, or where there is a pressing necessity for immediate ac- 
 tion. There is a discretion which the court must exercise in every case. 
 Id. 
 
 16. Equity jurisdiction to restrain trespass. — An injunction will ,be 
 granted to restrain a trespass in order to quiet the possession, or when 
 there is danger of irreparable mischiei, or where the value of the inher- 
 itance is put in jeopardy by a continuance of the mischief, but in ordinary 
 trespasses, or where the remedy at law is adequate, equity refuses to in- 
 terfere. Bracken v. Preston, 267 
 
 17. Trespass in digging or mining on the land of another is within 
 the cognizance of a court of equity when committed by a mere wrong- 
 doer, or where a party exceeds a limited authority. Id. 
 
 18. Surrender of p ssession not decreed. —To justify the interference 
 of equity, the complainant must in general be in possession or have estab- 
 Jished his Hght at law, or brought an action to recover possession, or his 
 exclusive right must be admitted by defendant; but the court will, in all 
 such cases, proceed with great caution, and although a defendant does not 
 show a legal right to possession, yet as a court of equity has no direct juris- 
 diction to try title, except in certain peculiar cases, it will not decree that 
 the defendant surrender possession. Id. 
 
 19. Disseized plaintiff. — No injunction will be allowed in cases of tres- 
 pass with an account, where the complainants, being disseized, can not 
 maintain an action for mesne profits. Id. 
 
 20. Eeqidsites of bill— Insufficient case for inteylocutory writ. — Where 
 a bill was brought alleging a continuing trespass by mining copper ore, 
 showing that complainants had been disseized, and praying an injunction 
 pending an action for forcible entry and detainer, and for an account of 
 mineral exsected, and for decree that defendants surrender possession and 
 the complainants be quieted in their title, and it appeared that the de- 
 fendants were in possession under claim of right: Held, that the bill did 
 not state a case entitling them to relief; that ejectment was the proper 
 remedy with a preliminary injunction on a proper bill showing the pend- 
 ency of such action to try title, and that after recovery therein the plaint- 
 iffs could obtain satisfaction by an action for mesne profits. Id. 
 
 21. Notice to dissolve. — Service of the rule nisi upon complainant's 
 
Index. 713 
 
 IN.niNCTION. Continued. 
 
 . solicitor, stating the grounds of the application and fixing the time and 
 place of hearing the motion to dissolve an injunction in vacation, on the 
 coming in of the answer, is sufficient service. Moore v. Ferrell, 2.81 
 
 22. What answer will compel dissolution. — Where the answer plainly 
 and distinctly denies the facts and circumstances upon which the equity 
 of the bill is based the inj\mction will be dissolved; but where the trespass 
 itself is not denied and the defense is in the nature of confession and 
 avoidance there is not a denial of the equities. Id. 
 
 23. Irreparable nature of injury. — The irreparable character of the 
 injury is a necessary legal inference from the facts admitted — that defend- 
 dants are taking the gold. Id. 
 
 24. Title and insolvency denied, — Trespass will be enjoined, in all 
 cases where from the nature of the trespass or the circumstances of the 
 parties the remedy at law is not adequate, but equity will not inter- 
 meddle with the title ; where title is denied courts will look more closely 
 to the character of the trespass. It will not dissolve an injunction against 
 gold mining upon an answer denying only the title and the allegation of 
 insolvency. Id. 
 
 25. Distinction between mining, and other injunction cases. — Injunc- 
 tions to prevent persons from working a gold mine to which the plaintiff 
 claims title, are not put upon the same footing with injunctionfl to stay 
 execution on judgments at law, where the legal rights of the parties have 
 been adjudicated. In the former class of cases, where it appears that if 
 the defendants' allegations be true the injunction can do them no harm, 
 but if plaintiff's allegations be true, he may sustain an irreparable injury 
 — the injunction should be continued to the hearing, that the facts may 
 be investigated. McBrayer v. Hardin, 288 
 
 26. Injunction without ejectment. — Injunction against a trespasser to 
 prevent his taking ore ought to issue in favor of a party in possessioa 
 under a clear title without requiring him to bring an action at law. 
 Anderson v. Harvey's Heirs, 291 
 
 27. Taking ore, a destructive trespass. — The taking of iron ore from 
 land of little or no value except for such iron ore, is a trespass going to 
 the destruction of the estate. Id. 
 
 28. Ascertaiiirnent of damages. — The fact that the value of the ore 
 taken could be readily ascertained does not deprive a court of equity of 
 its right to interfere by injunction. Id. 
 
 29. Lessees protected against trespassers — Writ expires with lease. — 
 A party claiming the right to work lead mines as a lessee may be pro- 
 tected against a trespasser by injunction, but after the lease has b en ter- 
 minated by a sale of the premises the lessees ha,ve no longer any rigl.is to 
 protect, and although the lease contains a general covenant for remwal, 
 the bill for injunction should be dismissed. . Sayle v. Laird, 301 
 
 30. Trespass— Irreparable injury. — An injunction will not be granted 
 in aid of an action of trespass, unless it appear that the injury will be ir- 
 reparable, and can not be compensated in damages. Waldron v. Marsh, 
 
 305 
 
 31. Sufficiency of affidavit alleging irreparable injury.— 1% is not puffi- 
 
714 Index. 
 
 INJUNCTION. Continued. 
 cientthat the affidavit should allege- that the injury will be irreparable; 
 it must be shown to the court how and why it would be so; otherwise the 
 extraordinary remedy of injunction will not be allowed, especially where 
 no action has ever determined the plaintiff's right. Id. 
 
 32. Waste — Practice. — It has become almost a matter of course to 
 grant an injunction to stay waste. Smith v. City of Rome, 306 
 
 33. Appeal no supersedeas to injunction. — Where an injunction has 
 been granted and an appeal is taken by the defendants from the order al- 
 lowing the injunction, the injunction is not dissolved nor superseded by 
 the appeal. Merced M. Co. v. Fremont, 309 
 
 34. Mandamus to compel enforcement of injunction. — Mandamus will 
 lie to the judge of the court below from whose court an injunction has 
 issued to compel his issuing attachment to enforce the injunction pending 
 an appeal thereon. Id. 
 
 35. Trespass enjoined, as well as waste. — Courts now restrain destruc- 
 tive trespasses, and the distinction which once confined their interference 
 to cases of technical waste has been discarded. Merced M. Co. v. Fre- 
 mont, SIS 
 
 36. Special case of gold mines. — ^The principle upon which destructive 
 trespass is restrained applies to gold mines as well as others. If a party 
 remove, he removes all that is of any value in the estate itself. It is em- 
 phatically taking away the entire substance of the estate; another ma- 
 terial circumstance is the absence of any mode of fixing the amount of 
 damage to the mine. Id. 
 
 87. Irreparable injury. — ^Taking away the minerals is in itself an ir- 
 reparable injury; and the mere statement of this fact is a compliance 
 vrith the ruling that the complaint must state how. the injury is irrepar- 
 able. Id. 
 
 38. Insolvency is not necessary to be alleged where the right depends 
 upon the nature of the injury. Id. 
 
 39. Due discretion should be used in the granting of injunctions to 
 restrain alleged irreparable mischiefs. When title is in dispute the' court 
 should be more cautious; but in all cases it is a matter of sound discretion. 
 Id. 
 
 40. Preservation of property pending litigation. — ^Where there is 
 reasonable ground to apprehend irreparable mischief pending the litiga- 
 tion, and the title be matter of doubt, the com'ts should restrain both parties 
 or appoint a receiver. Id. 
 
 41. Facts sufficient to justify damages only, irithout injunction. — 
 The complaint stated that the defendants had constructed a mining ditch 
 above that of plaintiffs, and had thereby diverted the waters of the stream 
 which supplied them without any allegation of continuing injury, and 
 claimed damages and a perpetual injunction : Held, that the case stated 
 was snflBcient to support an action for damages, but not to sustain the in- 
 junction. Coker v. Simpson, SSO 
 
 42. There must be equitable circumstances stated, to obtain a remedy 
 by injunction. Id. 
 
 43. Injunction pending trial of plea to jurisdiction.— The plea to the 
 
Index. 715 
 
 INJUNCTION. Continued. 
 jurisdiction does not oust the jurisdiction of the court; in a case of threat- 
 ened irremediable mischief the court will issue an injunction to stay the 
 mischief pending the argument or issue, and accelerate the hearing or 
 argument upon the issue made. Fremont v. Merced M. Co., 332 
 
 44. Averments in avoidance. — On motion to dissolve, the court will 
 consider matters set up in the bill by way of avoidance as if stated by 
 affidavit. U. S. v. Parrott, 336 
 
 45. Title to mine disputed. — An injunction may issue to stay the 
 working of a mine although the legal title is in controversy, the object 
 being to preserve the subject-matter of the litigation. Id. 
 
 46. Denying the equities of the hill. — Where the answer denies di- 
 rectly and positively, upon personal knoivledge, the allegations of the 
 bill, it is a denial of the equity, and acting upon such answer as evidence 
 an injunction ought to be dissolyed in the absence of extraordinary cir- 
 cumslanues, such as waste, destruction, trespasses, etc.; but where fraud, 
 forgery and antedating are distinctly charged in the bill, the denial of such 
 charges upon information and belief is not a denial of the equity of the 
 bill, and can not defeat the motion for injunction or cause the dissolution 
 of one already granted. Id. 
 
 47. Trespass on mine — Irreparable injury. — Working a mine belongs 
 to the class of irreparable injuries; taking away the minerals is taking away 
 the substance of the estate. Id. 
 
 48. Insolvency. — The allegation of insolvency is not necessary to pro- 
 cure the injunction in these cases; it is an element to be considered in con- 
 nection with the amounts involved, and, where it exists, is a proper sub- 
 ject for allegation in the bill. Id. 
 
 49. The institution of a suit at law to try title, is not indispensable to 
 the jurisdiction in equity to protect the property. Id. 
 
 50. Ore already severed. — The removal of the fruits of past waste may 
 be enjoined. Id. 
 
 51. General allegations insufficient if equities denied. — A party who 
 claims the right to the waters of a ditch, and avers that defendants are di- 
 verting the same, and thereby causing irreparable damage, is not entitled 
 to an injunction, if the answer denies the equity of the bill, unless some 
 equitable circumstances beyond the general allegation of irreparable injury 
 be shown, such as a threatened destruction of the property or the like. 
 Burnett v. Whitesides, 407 
 
 52. Surety can not rescind, discarding principal. — Where A, as 
 principal, and B, as surety, gave a note on an executory contract for the 
 purchase of a copper mine, in which contract a fraud was practiced on 
 A, it was held that a bill filed by B a,lone, praying for an injunction to 
 stay execution on a judgment at law, obtained on the note, the bill set- 
 ting up no other equity, and failing to pray for any disposition of the 
 original transaction, was defective in substance. Emmons v. McKesson, 
 
 409 
 
 53. Application to Supreme Cowt to enjoin pending the appeal— 
 Plaintififs being about to appeal from an order dissolving a preliminary 
 injunction, the judge below made an order that upon the perfecting of 
 
716 Index. 
 
 INJUNCTION. Continued. 
 the appeal the order granting the injuncKoii shonld revive and continue 
 in force. PlaintiflFa perfected the appeal and applied to the Supreme 
 Court for an injunction pending the appeal, on the ground that defend- 
 ants were disregarding the reviving order: Held, that the application 
 be denied, because the order reviving the injunction was ample to pro- 
 tect the plaintiffs until the appeal could be heard, or the injunction be 
 dissolved by some competent authority. Eldridge v. Wright, 418 
 
 i 4. A prayer for injunction is addressed to the discretion of the court, 
 and upon the facte of the case the discretion of the court below having re- 
 fused to grant the writ, the damage threatened not great and the insolv- 
 ency of the defendants denied, the action of the court below was ap- 
 proved. Slade V. Sullivan, 419 
 
 55. Practice in connection with trespass suit. — Plaintiffs sued for 
 damages by reason of alleged trespasses upon a certain portion of quartz 
 mining claims, averred in the complaint to be the property and in the pos- 
 session of the plaintiffs, and alleging, further, the insolvency of defend- 
 ants, asking an injunction against farther trespasses, which was granted. 
 The defendants denied all the allegations of the complaint, and averred 
 ownership. The jury found generally for the defenditnts, but the conrt 
 below refosed to dissolve the injunction: Held, 1. That the action 
 amounted to an action of trespass, with an injonction in aid. 2. That 
 the action having failed, the injunction should go with it. Brennan v. 
 Gaston, ' 424 
 
 56. An ancillary writ should abate with the suit which it sup- 
 ported, plaintiffs having failed to prove that which would have been 
 neceteary to maintain their suit, even where the action need not be con- 
 sidered as deciding the question of title, nor as debarring plaintiff from 
 proceeding anew for original relief. Id. 
 
 57. Ex parte order changing possession. — A judge at chambers has 
 no power by ex parte order to induct defendants into possession of mining 
 ground held by compiainanta, although after general verdict for the de- 
 fendunts. Brennan y. Gaston, 426 
 
 58. Destruction of fruit trees — Perpetual injunction after successive 
 verdicts at law. — Plaintiffs took up land under the Possessory Act of Cal- 
 ifornia, inclosed it and planted it with fruit trees. Defendants entered 
 {upon the premises, dag a ditch thereon for mining purposes, and washed 
 away and destroyed the trees. Plaintiffs sued for damages, and prayed a 
 perpetual injunction. Verdict, " We, the jury, award the plaintiffs forty- 
 two dollars damages." The court rendered judgment aicordingly, but 
 refused to make the injunction perpetual, although the plaintiffs had re- 
 covered a similar verdict in a previous suit: Held, that the verdict was 
 conclusive of the rights of the parties, and the only remedy from which 
 the plaintiff could derive adequate relief was by injunction. The injury 
 was irreparable in its nature, and destructive of interests for which no 
 equivalent cou'd be returned. Dauhenspeck v. Grear, 429 
 
 59. Holder of equitable title, when not entitled to injunction to stay 
 waste. — A died intestate in possession of a certain tract of land belonging 
 to the United States, which he claimed as mmeral land. Afterward, in 
 
Index. 717 
 
 INJUNCTION. Continued. 
 1854, B purchased of the United States said tract and others claimed as 
 mineral lands, under an arrangement with the respective claimants that 
 he should take the title in his own name; that each should furnish money 
 to pay for the land claimed by him, and thatB should convey to each. B 
 purchased the tract in question with money of A's estate, furnished for 
 that purpose by 0, the administrator (who was also one of the heirs), and 
 in 1856 conveyed said tract to C, as administrator. One of the heirs having 
 obtained from six of his co-heirs conveyances of their interests in said land 
 was, upon petition to the county court of the county where the land is 
 situate, adjudged to be the owner of seven elevenths of the land, which 
 undivided seven elevenths were by said decree assgned to him. The last 
 named heir brought suit to recover possession ol' his interest in the land, 
 and prayed for a temporary injunction to restrain the defendants from 
 digging and committing waste upon the said tract during the pendency of 
 the suit. The injunction was granted, but afterward on motion of 
 defendants was dissolved, and the plaintiff appealed from this order: 
 Held, that the legal title was in C, and not in the heirs, and that as it 
 appeared from the complaint that the plaintiff had only an equitable title, 
 and that no final judgment in his favor could be had, he was not entitled 
 to the temporary injunction. Oillett v. Treganza, 432 
 
 60. Water supply threatened hut not yet affected hy continued min- 
 ing. — By mining operations the defendant had not only sunk the level of a 
 stream supplying plaintiff's mill, but also the level of the adjoining land. 
 Plaintiff filed a bill for an injunction, but there had been as yet no actual 
 diminution of the water to the mill, though threatened: Held, that the 
 bill ought not to be dismissed, but should stand with leave to apply further; 
 the defendant meanwhile to give an undertaking not to diminish the flow. 
 Elwell V. Crou'ther, 438 
 
 61. Injunction after recovery in trespass. — The complaint averred that 
 defendants unlawfully entered upon certain mining ground owned by 
 plaintiffs, and mined out large quantities of gold, of the value of $1,000, 
 and that defendants w^ere wanton trespassers, and concluded with a prayer 
 for judgment lor $1,000 and an injunction. The answer averred that de- 
 fendants were the owners of a certain portion of the ground described in 
 the complaint, and denied that defendants had worked any ground except 
 that to which they claimed title. The cause was tried bya jury whofound 
 ' ' a verdict in favor of the plaintiffs, wi th one dollar damages. ' ' The court 
 thereupon rendered a judgment in favor of plaintiffs for one dollar, with- 
 out costs, and ordered the temporary injunction, which had been granted, 
 to be dissolved : Held, that the verdict of the jury decided the question of 
 title in favor of the plaintiffs, and that the refusal of the court to grant a 
 perpetual injunction was error. McLaughlin v. Kelly, 445 
 • 62. Injunction which ends controversy not refused. — In an action of 
 trespass in which the title has been litigated, it is no reason for refusing a 
 perpetual injunction that it would conclusively settle the title to the ground 
 in dispute, and estop defendants from recovering any portion of the 
 ground in another form of action. The principal object of actions is to 
 produce just such a result; that is, to finally settle the controversy. Id. 
 
718 Index. 
 
 INJUNCTION. Continued. 
 
 63. Eegtraining party claiming title — Laches — Expenditures. — If a 
 mining company has been in possession of a quartz ledge for several 
 months, expending large sums of money in working it as their own, it will 
 require a strong showing to induce a court of equity to grant or sustain an 
 injunction to stop the work. There must be an urgent necessity, and the 
 title of plaintifib must be shown to be clear, and not in dispute. Real Del 
 Monte M. Co. v. Pond M. Co., , 452 
 
 64. Title in dispute— Inconvenience to defendant, and his solvency. — 
 Where the title to propeiHy is in dispute, the injury occasioned to the par- 
 ties respectively by the granting or refusing of the injunction will be com- 
 pared, and the question of defendant's solvency will be considered. Id. 
 
 65. Equitable relief and damages in the same action. — A claim for 
 damages for trespass committed and a prayer for injunction to prevent 
 further waste may be joined in the same complaint. More v. Massini, 
 
 455 
 
 66. Plaintiff in possession. — A party may have an injunction to re- 
 strain a threatened injury to real property, in the nature of waste, even 
 though he is in possession of the land. Id. 
 
 67. Dispute between lessees. — In a dispute as to their rights between 
 parties working under different leases on the same coal veins, no injunc- 
 tion can be granted in advance of the settlement of their rights at law, ex- 
 cept to prevent irreparable mischief or injury. Mammoth Vein Coal Co.'s 
 Appeal, 460 
 
 68. General principles. — A preliminary injunction is a restrictive or 
 prohibitory process to compel the parly to maintain his status merely until 
 the matters in dispute shall be determined; only granted (in addition to 
 the case of invasion of unquestioned rights) for the prevention of irrepar- 
 able mischief, which can not be repaired under any standard of com- 
 pensation. Id. 
 
 69. Past injury. — Where defendants had run a gangway in such a 
 direction as to cut off plaintiffs from coal which they otherwise might have 
 taken: Eeld, a past transaction, and not to be redressed by preventive 
 process. Id. 
 
 70. Injunction when title disputed. — A destructive trespass will be 
 restrained by injunction, although an adverse title be asserted by the 
 party committing the trespass. Munson v. Tryon, 469 
 
 71. Jurisdiction beyond county. — A court of equity, having the parties 
 within its jurisdiction, may restrain by injunction a trespass upon lands 
 lying in another county. Id. 
 
 72. Incidental grounds for injunction. — Collusion with tenant, abnse 
 of process and purchase of unwarranted title for small consideration, con- 
 sidered incidentally, upon application for injunction. Id. 
 
 73. Effect of answer. — There are exceptions to the rule that the court 
 will not decree an injunction where the material averments of the bill 
 are traversed by the answer; but no special reason for exception appears 
 in this case. Lady Bryan Co. v. Lady Bri/an Co., 478 
 
 74. Practice as to restraining order. — The notice required by statute 
 of an application for injunction does not apply to the case of a temporary 
 
Index. 719 
 
 INJUNCTION. Continued. 
 restraining order, nor is an appeal authorized from an order granting oi 
 refusing the latter. Id. 
 
 75. Lessees enjoined and still held to their covenants. — The lessees of 
 a coal mine, under covenants to pay royalty in installments, in advance, 
 upon 120,000 tons of coal, whether raised or not, to do dead work, etc., 
 with a right of entry for breach, were enjoined from work under writ of 
 estrepement, at the suit of a third party. The lessors then gave notice of 
 forfeiture for breach of covenants. The lessees prayed an injunction, 
 alleging the estrepement against them as an excuse for non-payment of 
 rent, etc., but the court held that they were still liable under their lease; 
 that the writ of esti-epfement did not work an eviction, and refused the 
 prayer of the bill. Schuylkill d; Dauphin Co. v. Schmoele, 480 
 
 76. Requisites preliminary to injunction. — No injunction ought to be 
 allowed where the remedy is complete at law; it is gianted only to pre- 
 vent injury (although an account for' past injury may be incident), and 
 there must be a reasonable probability that a real injury will occur unless 
 the writ be granted. Sherman v. Clark, 483 
 
 77. Injunction to restrain transfer of stock illegally issued by a secre- 
 tary of the company may issue, but only on a proper showing of the 
 illegality of the issue and of the proposed transfer. Id. 
 
 78. Threatening to continue. — Where the acts complained of do not 
 make a case, it follows that a threat to continue them can not aid the 
 matter. Id. 
 
 79. Fdcts of the case — Insufficient showing for injunction — Claims 
 bought with knowledge of adverse title. — Complainant averred the dis- 
 covery and the location of discovery claim, and the location of claim No. 
 1 on the St. Louis lode, by one Brain, in 1865, and of No. 2 by one Nich- 
 ols, compliance with the mining laws, working, etc., viz. : 
 
 That complainant, in 1868, was working claim No. 1, expended large 
 sums and disclosed a rich vein; that during that time he let a contract to 
 Woodman on the lode, a d that Woodman, though knowing the claim to 
 belong to Brain, pretended to make a discovery and location of his own 
 on the lode. The bill further averred that complainant was the owner of 
 the titles of Brain and Nichols, but not stating how or when he became 
 such owner. Defendant's answer showed the decease of Brain, and a 
 probate court sale of Brain's interest (without notice to the heirs), and the 
 purchase of the same by the plaintiff upon a speculating contract for 
 $1,000, and a twelfth interest in case of successful suit, etc., from the as- 
 signee at the probate sale; averred that the contract made between plaint- 
 iff and Woodman related to other property, long since abandoned, and 
 denied the identity of the property sued for, and alleged that .lefendant 
 had discovered and located the Emma lode in 1868; that plaintiff made no 
 claim for the premises until 1870, when defendants had developed their 
 great value. Held, no cause for injunction, because: 1. The bill did not 
 make a sufficiently specific case, not siiowing how title accrued; 2. All 
 the equities of the bill were denied, and the facts not only denied but 
 evidently in great doubt; 3. The complainant was guilty of laches; 4. 
 1 aking the bill and answer together, it showed no case addressed to the 
 
720 Index. 
 
 INJUNCTION. Continued. 
 discretion Of the court, nor admitting of equitable interference. Lyon v. 
 Woodman, ^O..' 
 
 80. Discretionary power in court. — ^The granting or continuing of in- 
 junctions necessarily involves the exercise of a certain amount of discretion, 
 the limits of which can not be fixed by any adjudged case. Id, 
 
 81. Disputed title.— kn injunction to stay the working of a mine may 
 be granted notwithstanding a question of title is involved. But the fact 
 of the title being involved will add to the caution of the court in granting 
 it. It is not necessary for a plaintiif to establish his title by a suit at law 
 where it is not doubtful and not in dispute. But if disputed and in doubt, 
 a court of equity will not settle it for him. He must show a prima facie 
 case, free from reasonable doubt, and a case free from the imputation of 
 laches. Id. 
 
 82. Plaintiff's standing — Speculative purchase from, ousted claimant. 
 — The inadequacy of price paid by plaintiff seeking an injunction, and 
 the fact of his purchasing while the mine was in the adverse possession 
 of other parties, considered as reasons for refusing injunctive relief ad- 
 dressed to the discretion of the court, and injunction refused accordingly. 
 Id. 
 
 83. Relief as between trespassers. — It is not sufficient to show the 
 defendant a trespasser, where plaintiff has himself no better standing. 
 Id. 
 
 84. Diversion of water enjoined to extent of requiring afflrmative acts 
 by bulk-heading tunnel. — While excavating a tunnel for mining purposes 
 the complainant struck a seam in the rock, from which flowed a stream 
 of water, which It claimed and appropriated. Subsequently, defendants 
 ran a tunnel into the mountain to a point below complainant's tunnel and 
 drained the latter, and the defendants thereupon appropriated the water: 
 Held, that complainant was entitled to an injunction to restrain such 
 diversion and appropriation by defendants, even though it should be 
 necessary for defendants to fill up, or build a water-tight barrier across 
 their tunnel, to accomplish the end sought. Cole Co. v. Virginia Co., 
 
 503 
 
 85. Preliminary injunction requiring substantive act. — In special 
 cases a court of equity will, on a preliminaiy application, issue an injunc- 
 tion, in a restrictive form, though its obedience would require the per- 
 formance of a substantive act. Id., 616 
 
 86. Answer upon information. — Denials of the equities of a bill, if 
 made only upon information and belief, will not justify the dissolution of 
 an injunction, and the allegation of new matter upon information and 
 belief is equally objectionable. Id, 
 
 87. Diversion of water— First appropriator protected to extent of his 
 original ditch. — The plaintiff constructed a ditch whereby he appropriated 
 part of the waters of a stream. ,The defendants afterward appropriated 
 the balance. Subsequently the plaintiff dug another ditch, and diverted 
 water thereby from the same stream. The plaintiff brought suit for an in- 
 junction, restraining the defendants from interfering with plaintiff in the 
 use of the water. At the trial the luiy returned a special verdict that 
 
Itsdex. 721 
 
 INJUNCTION. Continued. 
 the new ditch did not divert enough water to diminish the quantity ap- 
 propriated by defendants. Theicourt thereupon entered a, judgment that 
 the plaintiflF is entitled to three hundred inches of water (the capacity of 
 plaintiff's first ditch), and enjoined the defendants from disturbing the 
 plaintiff in the use of that quantity. Held, that the judgment was en- 
 
 ' tirely consistent with the verdict and with justice. Higgins v. Barker, 
 
 525 
 
 88. Irreparable injury— Multiplicity of suits. —Mines, quarries and 
 timber are protected by, injunction, upon the ground that injuries to and 
 depredations upon them are, or may cause, irreparable damage, and also 
 with a view to prevent a multiplicity of actions for damages that might 
 accrue from a continuous! violation of the rights of the owners. West 
 Point Go. V. Eeymert, 528 
 
 89. No suit essential where title clear. — It is not necessary that plaint- 
 iff's right should first be established in an action at law, the evidence in 
 the case for the injunction showing a clear title in the plaintiff, and only 
 a sham title set up by the trespassing defendant. Id. 
 
 90. No perpetual injunction before title settled. — Equity will not 
 usually grant a perpetual injunction where the title is put in issue and 
 where the evidence leaves the title still in doubt, but will grant a temporary 
 writ till the title is settled at law; but upon the facts in this case, it was 
 held, that the title was not really in issue, and the perpetual injunction 
 was upheld. LoeJcwood v. Lunsford, 532 
 
 91. Injunction against trespasser-rlnsolvenci/. — Where a mere tres- 
 passer digs into and works a mine to the injury of an owner, an injunction 
 will be granted, and especially where such trespasser is insolvent. Id. 
 
 92. Effect of answer denying the equities of the bill. — Where theanswer 
 to a bill to restrain the working of a mine, fully and fairly denies both the 
 title and possession of complainant, no testimony being taken, and the case 
 standing on the pleadings alone, the injunction should be dissolved until 
 good reason appears for continuing it. The ordinary case of alleged taking 
 of ore out of a mine claimed by complainant is no exception to this rule. 
 Magnet M. Co. v. Page d; Panaca M. Co. , 540 
 
 93. Denial by answer taken as true. — A complete denial by the answer 
 is taken aa true upon a motion to dissolve an injunction when heard upon 
 bill and answer alone. 
 
 94. Acquiescence in location of railroad — Lessee mining under road- 
 bed. — A railroad was constructed over certain lands without legal pro- 
 ceedings to condemn it, but without objection from the owners. After- 
 ward proceedings to assess damages were commenced, but compromised 
 and released. After the road was built, but before the release, coal veins 
 undereropping the roadbed were let by the owner of the land. Held, that 
 the title of the railroad compiny was by the original occupation without 
 objection; that the release did not operate as an original conveyance, but 
 as a discharge of the damages for the entry and occupation; and that the 
 lessee of the coal took his lease subject to the right of way, and the coal 
 company were enjoined from mining under the road. Lawrence's Appeal, 
 
 542 
 
 VOL. TIL— 46 
 
722 Index. 
 
 INJUNCTION. Continued. 
 
 95. Irreparable injury, how pleaded. — Where, upon an applieition 
 for an injunction to restrain the defendants from working certain mining 
 grroand, and from selling' any o.-es therefrom, the plaintiffs alleged that 
 the injury was irreparable, from the fact that it was ira ossible for them 
 to know the amount and value of the ores taken from the mine by de- 
 fendant: Held, that the simple statement of the complaint to that effect 
 is not sufficient, but the facts i>hould be stated from which the court could 
 learn that the injury was irreparable. Leitham v. Cusick, 546 
 
 96. Restraining order governed htf the complaint. — A restraining 
 order that goes further than the prayer of the complaint is improper, and 
 should be set aside. Id. 
 
 97. Practice on motion to he restored to possession. — When the defend- 
 ants have been deprived of the possession of mining gi'ound by an officer 
 acting under a restraining order, which was improperly issued, the judge 
 who granted the same can not. upon application of the defendants with- 
 out notice, restore them to the possession. Id. 
 
 93. Stolen stock — Enjoining sale. — A mining company having found a 
 portion of its ground covered by the claim of another company whose 
 stock was held only at a nominal value, bought up the entire amount of 
 such stock; afterward such stock was lost, or as averred by the complaint, 
 stolen, and came into the hands of parties who proceeded to control the 
 corporation by representing such stock, and to act adversely to the com- 
 pany which had bought up the stock. Defendants filed no answer. The 
 court below enjoined defendants from in any manner disposing of said 
 stock: Held, that the complaint presented a prima facie case for relief in 
 the discretion of the court, the exercise of which discretion in the court 
 below should not be disturbed. Bbattt, J., dissenting. Sierra Nevada 
 M. Co. V. Sears, 549 
 
 99. The discretion of the court helow in allowing injunction upon a 
 prima facie case not denied by answer, will not be interfered with. Id. 
 
 100. Proceedings to settle title required in aid of injunetioti. — To 
 entitle a party to injunctive I'elief, restraining defendants in possession 
 from operating a mining claim, the plaintiff's title must be shown to be 
 clear and undisputed, or it must appear that steps have been taken to es- 
 tablish the title at law, unless satisfactory reasons be shown for not doing 
 so. Telegraph M. Co. v. Central Smelting Co., 555 
 
 101. Idem — The reason for rule requiring an issue at law. — Itwonid 
 be gross injustice to allow a temporary injunction when upon the face of 
 the papeis it appears that a perpetual injunction could never be granted. 
 As no perpetual injunction could be sustained on a bill to restrain the 
 working of a mining claim without establishing the title at law, no tem- 
 porary injunction should be allowed to restrain such working in the ab- 
 sence of any suit to try title, or of excuse for not bringing one. Id. 
 
 102. Discretion. — It is a matter largely in the discretion of the court 
 whether, on the coming in of an answer, a preliminary iiq'unction pre- 
 viously granted shall be dissolved or modified; and, except in a case of 
 palpable error or abuse of discretion, the action of the court below will not 
 be disturbed on appeal. Efford v. South Pacific Co., 557 
 
• Index. 723 
 
 INJUNCTION. Continued. 
 
 103. Allegations and proofs on motion for injunction. — The rule that 
 the proofs must correspond with the allegations, applies to the trial of a 
 cause on its merits, and does not apply to proceedings on a motion for an 
 injunction, where the answer is regarded simply as an afiBdavit. Kahn 
 V. Telegraph M. Co., 559 
 
 104. Injunction againxt tenants in common. — Where the defendant is 
 in the possession of a mining claim, and is the undisputed owner of two 
 thirds thereof, and claims the entire property under a bona fide claim of 
 title, and is pecuniarily responsible for all damages that plaintiff, his co- 
 owner, may sustain by reason of the working of the mine, an injunction 
 will not be granted. Id. 
 
 105. Eight of co-tenant to injunction. — As a general rule, the owner 
 of a minor interest in a mining claim-, out of possession, is not entitled 
 to an injunction against the owner of the major part thereof, who is in 
 possession and working the whole, where it does not appear that the 
 party so in possession is unable to respond in damages to the party out of 
 possession. Id, 
 
 106. Injunction for acts already done. — An injunction is a preventive 
 remedy only, and can not be invoked to restrain a party from doing an act 
 which he has already done. In such a case a party must be remitted to 
 his remedy at law. Id. 
 
 107. Technical, distinguished from destructive trespasses. — The con- 
 struction of a ditch across rocky, barren and uncultivated land is not an 
 irreparable injury. The distinction between technical trespass and tres- 
 pass going to the extent of irreparable injury, is the foundation of the 
 jurisdiction of equity in the latter class of cases, and trespass in the former 
 class of cases will not be enjoined, although the plaintiff's legal right to 
 the land may not be denied, the defendants being solvent and able to re- 
 spond in damages. Thorn v. Sweeney, 564 
 
 108. Irreparable injury may not be averred in terms without stating 
 the fapts which produce such result. Id. 
 
 109. Evidence necessary to establish exclusive mining lease. — One 
 who claims an exclusive right to mine on a tract of laud by virtue of an 
 alleged parol lease, and seeks a perpetual injunction restraining others 
 from mining thereon, though the latter do not interfere with his develop- 
 ment of his own range, must establish such right by clear and satisfactory 
 evidence; and the evidence in this case (for which see the opinion) is held 
 insufficient. Clegg v. Jones, hTi 
 
 110. General rules applicable to injunctions. — Injunctions are to pre- 
 vent irreparable mischief and stay consequences that could not be ade- 
 quately compensated; their allowance is discretionary and not of right. 
 They call for good faith in the petitioner, and may be withheld if likely 
 to inflict greater injury than the grievance complained of. Edwards v. 
 Allouez M. Co., 577 
 
 111. Motives of petitioner inquired into. — Where, by inviting an in- 
 jury, one places himself in a position to call for an equitable remedy, his 
 motives can be inquired into, even though he grounds himself on a strict 
 legal right. Id. 
 
724 Index. 
 
 [NJUNCTION. Continued. 
 
 112. Injunction to restrain a provoked in juri/ denied. — A man bought 
 for speculation certain bottom lands, upon which large quantities of sand 
 were being deposited by a stream, which operated a stamp mill higher 
 up. He put a valuation upon the land of from three to five times what it 
 cost him, and tried to sell it to the corporation which owned the mill, but 
 it declined to buy. Then he prayed for an injunction to restrain the cor- 
 poration from sanding his land and polluting the stream: Held, that an 
 injunction would not lie, and that the speculator was entitled to such rem- 
 edy as the law would give him and no more. CAMPsaLL, C. J., dissented. 
 Id. 
 
 113. Ditch upon public domain not enjoined. — Under § 2339, U. S. 
 Rev. Stats., the defendants had the right of way for the construction of a 
 ditch over the public domain, subject only to the liability of paying for all 
 damages done by them to plaintiff's possession. And since the allegation 
 of defendants' insolvency isfiilly denied in the answer, they ought iiot to 
 be enjoined from doing upon the public domain what the paramount law 
 declares they may do. Rivers v. Burbank, 583 
 
 114. Flooding ditch — Defendants jointly enjoined though not jointly 
 responsible for damages. ^-The owners of a drain ditch recovered a jnd|r- 
 ment for damages against the several owners of distinct parcels of land, 
 in an action for the wrongful flowing of waste water from such land, to 
 the injury of the ditch, and also obtained an injunction which bound the 
 defendants to so regulate the irrigation of their lands as not materially to 
 injure the drain ditch of plaintiffs below their respective lands : Held, 
 on appeal, that a motion for nonsuit ought to have been sustained on the 
 ground that where two or more parties act, each for hiinself,' in pro- 
 ducing a result injurious to plaintifts, they can not be held jointly liable 
 for the acts of each other; but also, held, that if the plaintiffs would 
 remit their judgment for damages, the decree ordering an injunction 
 should remain. Blaisdell y. Stephens, 599 
 
 115. Oil pipe line over railroad track — No injunction against nominal 
 trespass to aid a competing oil carrier. — The Central Railroad Company 
 purchased the fee simple title to a tract of land in Bayonne. The ruilroad 
 track was laid across the land in a cut sixteen feet deep ; the city sub- 
 sequently condemned a street across the cut, and a bridge was built over 
 it by the company, though paid for by the city. Subsequently the cify 
 granted, by resolution, to the Standard Oil Company the right to lay 
 pipes in the street. The oil company laid its pipes, not only in the street, 
 but alongside of the bridge, and on a level with it. The railroad com- 
 pany applied for a preliminary injunction to prevent resistance to the 
 removal of the pipes along the bridge, which was refused, because, 
 
 1. The pipes had been laid when the bill was filed. 
 
 2. The case presented did not show a threatened infliction of irrepara- 
 ble injury. 
 
 3. The claim that the pipes were supported by the bridge, and thereby 
 imposed upon it an unwarranted servitude, is denied by the oil company, 
 and is, at most, a subject of dispute. 
 
 4. The complainants have no claim to protection against lawful com- 
 petition in the transportation of oil. 
 
Ijsdex. 725 
 
 INJUNCTION. Continued. 
 
 5. The defendants do not appear to have been actuated by disregard 
 of the power of the court. Central R. B. Co. v. Standard Oil Co., 604 
 
 116. Lease of brick field — Mandatory injunction to restore fence. — 
 Where the lessee of a brick field, contrary to the covenants in his lease, 
 caused the fall of one of the fences bounding the field, by excavating the 
 clay from ander it: Held, that a mandatory injunction in a negative 
 form should be granted to compel the restoration of the fence to its former 
 condition. Newton v. Nock, 611 
 
 117. Injunction to prevent drowning of colliery. — The court has 
 power to enjoin a party from discontinuing pumping at a colliery and 
 prevent its being drowned out, pending a case for specific performance of 
 contract for lease; but it wjll not exercise that power when the pumping 
 has already been a long time discontinued. Strelley v. Pearson, 618 
 
 118. Oil pipe line in river, under drawbridge. — The defendants, a for- 
 eign corporation, without authority laid a pipe for the transportation of 
 oil in the chnnnel of the Hackensack river, under the draw of the railroad 
 bridge of the complainants, upon lands belonging to the State. A pre- 
 liminary injunction to prevent the defendants from interfering with com- 
 plainants by laying pipe was denied, because, 
 
 1. The pipe was laid when the bill was filed. 
 
 2. It. was so laid as not to interfere with the use and maintenance of 
 the bridge. 
 
 3. The lands whereon the pipe is laid belong to the State, and it does 
 not complain of any purpresture. 
 
 4. The complainants have no monopoly for the transportation of oil, 
 and besides, the defendants intend only to transport their own goodi. 
 Neie Jersey Co. v. Standard Oil Co., 625 
 
 119. Practice on appeal— Stay refused pending appeal from order de- 
 nying injunction. — Complainants having applied for a preliminary injunc- 
 tion to prevent defendants from interfering with the removal of an oil pipe 
 line, which crossed the complainante' railroad track, obtained an ad in- 
 terim stay prohibiting the defendants from using the pipe for the convey- 
 ance of oil. The injunction being refused, the temporary stay was also 
 dissolved. The complainants appealed from the order refusing the in- 
 junction, and pending the appeal moved to continue the ad interim stay : 
 Held, that the question of continuing the order was in the discretion of 
 the court; that it did not appear that any irreparable injury would be 
 done if the stay was not continued; and that the preliminary injunction 
 having been refused, it was also the duty of the chancellor to refuse to 
 continue the stay, which had only been granted as a prudential interfer- 
 ence. Central R. B. Co. v. Standard Oil Co., 629 
 
 120. Complainant ousting defendant after order of court enjoining de- 
 fendant's mining. — Where a complainant, out of possession, after obtain- 
 ing an injunction to restrain the working of a mine by a defendant in 
 possession, thereupon proceeded to oust the defendant, he was compelled, 
 by order, to restore such possession to the defendant, and it was held 
 further, that where the object of the writ was to preserve the property 
 pending the litigation, the attempt by complainant to prevent the ac- 
 
726 Index. 
 
 INJUNCTION. Continued. 
 complishment of such object was a gross abuse of the process of the court, 
 and might he considered as grounds for dissolving the writ, but that a 
 violation of the spirit of the injunction by a complainant could not 
 be considered as a contempt of court. Vamandt v. Argentine M. Co.. 
 
 635 
 
 121. To stop the worhirtg of a mine hy injunction is against public 
 policy and private justice where a receivership is practicable. Falls v. Mc- 
 Afee, ^ 639 
 
 122. Injunction staying proceedings at law. — Although the district 
 courts have both equity and common law jurisdiction, yet the practice 
 should be the same as if their different powers were conferred upon sepa- 
 rate and distinct courts; and the proper method of procuring the postpone- 
 ment of the trial of an- action at law, upon the ground that a suit is 
 pendmg in chancery which will be decisive of the action at law, is by in- 
 junction from the court of chancery to stay proceedings at law. Gear v. 
 Shaw, ■ 648 
 
 123. Special appearance. — A court of chancery where the sole object 
 of a bill filed is to obtain an injunction, will not allow that object to be 
 resisted without holding the defendant to a general appearance in the ac- 
 tion. Thornhurgh v. Savage M. Co., 667 
 
 See Account, 1, 2; Apfidavit, 1, 2,3; Contempt, 1; Corporation, 
 3; Eminent DoM.iiN, 1; Insolvency; Laches, 3; Notice. 
 
 INJUNCTION BOND. 
 
 1. Want of probaWe cause. — In action upon a bond conditioned to 
 indemnil'y the defendants in an injunction cause " for all damages they 
 might sustain by the wronglul suin^ out of an injunction " to stop their 
 working of a certain gold mine, it is necessary for the plaintiffs to show a 
 want of probable cause for the suit brought for injunction; and also in a 
 legal sense, malice in bringing it. Falls v. McAfee, 689 
 
 2. Malice negatived. — Where the party who sued out the injunction 
 really and bona fide entertained the belief that he had just grounds for 
 his suit, the idea of malice is negatived, and the action upon the bond can 
 not be supported. Id. 
 
 8. Action on bond — Nominal damages not to bar proper assessment. — 
 In an action on a bond with a condition, there was a verdict for the penal 
 sum and one cent damages, and judgment was entered awarding execu- 
 tion for the entire sum: Held, erroneous, and that execution could not be 
 awarded until the damages had been assessed as provided by statute; that 
 a subsequent assessment of d<iraages and award of execution pursuant to 
 the statute cured the error; and that the assessment of nominal damages 
 by the first jury could not be considered as a determination of the extent 
 of the plaintiffs' claim. Gear v. Shaw, 643 
 
 4. Damages on dissolution of injunction — Sudden increase in product 
 of the mine. — An injunction was granted to restrain parties from mining, 
 and, some time after its dissolution, a new discovery was made, and a 
 large quantity of ore raised from it. In assessing damages on the injunc- 
 tion bond. Held, proof that the use of the money for which the mineral 
 might have been sold was worth to the parties more than legal interest, 
 
Index, 727 . 
 
 INJUNCTION BOND. Continued. 
 by way of enhancing the damages, should be rejected as ideal and specu- 
 lative; and so, too, as to the proof of the subsequent discovery as tending 
 to show what the parties might have realized had they continued mining, 
 and the injunction had not been granted. Id. 
 
 5. Idem. — Damages upon the dissolution of an injunction are to be 
 estimated with reference to the business of the party enjoined, and his 
 profits at the time of the service of the writ, and not upon conjecture 
 founded upon subsequent events not then known or contemplated. Id. 
 
 6. Counsel fees, etc., as damages. — Counsel fees and expenses of 
 defending the chancery suit are not a proper item of damages, to any 
 greater extent than they were necessarily incident to or caiieed by the 
 injunction. Id. 
 
 7. Demand need pot be pi'oved. — In an action upon an injunction bond 
 it is not necessary for the plaintilf to prove a previous demand for his 
 damages. Id. 
 
 8. Oath of jury. — In assessing damages on a bond with a condition, 
 after a finding that there has been a breach, it is correct to .swear the jury 
 to well and truly inquire of and assess the plaintiffs' damages. Id. 
 
 9. Measure of damages where building tramway had be^n enjoined. 
 — Morgan sold to Negleycertain coal in place, with privilege to shift the 
 incline and railro.id from the pits. Negley commenced the road, but at 
 Morgan's suit was restrained by injunction, which was afterward dis- 
 solved. Negley, without constructing the road, sold to another, and 
 brought suit on the injunction bond: iTeW, that the dififerenee between 
 the cost of constructing the road when the injunction was laid and when 
 it was dissolved, was speculative and consequential, and should not have 
 been subraittad to the jury. Morgan v. Negley, 653 
 
 10. Idem. — Had the property continued in the hands of Negley, and 
 he had finished the road at increased cost, it would have been a proper 
 item of damages. Id. 
 
 11. Measure of damages. — In a suit upon an injunction bond in aid 
 of a writ restraining defendants, who were three miners, and were pre- 
 vented from working their placer claim for sixty days, the value of their 
 labor, proved to be $18 per day for the three men, allowed as proper dam- 
 ages. Campbell v. Metcalf, 656 
 
 12. Idem —Counsel fees. — In suit upon an injunction bond given in 
 support of a writ to prevent the working of mining ground, fees paid to 
 counsel lor services rendered in the trial of title are not recoverable. The 
 recovery is restricted to the services of counsel in procuring the dissolution 
 of the injunction. Id. 
 
 13. Measure of damages — Expenses in protecting the mine. — Money 
 alleyed to have been paid in the employment of men to hold a mine, so as 
 to prevent it from being "jumped" during the existence of an injunction 
 against working it, is not a legitimate item of the damages covered by 
 the injunction bond sued upon. Streeter v. Marshall Silver M. Co., 660 
 
 14. Idem — It is a fundamental rule that no damages can be allowed 
 which are not the actual, natural an^ proximate result of the wrong com- 
 mitted. Id. 
 
728 Index. 
 
 insolvency. 
 
 1. Test of insolvency.— H^nB test of the insolvency of the principal 
 debtor is what might be recoverable by process — not what it might be 
 supposed he would do voluntarily. Janes v. SeoU, 181 
 
 2. Insolvency and laches considered in their incidental relations to bill 
 seeking injunction. Irwinv. Davidson, 237 
 
 3. Acerment of insolvency, when unnecessary. — When the injury goos 
 to the destruction of (he substance of the estate, which can not be specific- 
 ally replaced, no allegation of insolvency is necessary to sustain an in- 
 junction. More V. Massini, 455 
 
 4. Where irreparable injury, or inadequate relief at law is alleged, 
 insolvency of the defendant need not be superadded. Sierra Neoada M. 
 Co. V. Se.ars, 549 
 
 See GuAUANTv, 2; Injunction, 24, 88, 48, 64, 91. 
 
 INSPECTION. 
 
 1. View of mine with use of means of access. — Where the question at 
 issue was the identity of the lode claimed by plaintiff with the lode claimed 
 by the defendant, whiiih could only be determined by inspection of under- 
 ground developments of the mine in possession of the defendants: Held, 
 that it was a proper case for an order of inspection, a,nd the order was 
 made, allowing view and survey ol' the mineby the complainant, with 
 his attendants and witnesses not to exceed nine in number, during live suc- 
 cessive days, the defendant being commanded to furnish all means of 
 ingress and egress and means of traversing the mine. Thornhurgh v. 
 Savage M. Co., i 667 
 
 2. Before granting an order for the inspection of a mine, the court 
 must be satisfied that the application is made in good faith, and in grant- 
 ing it will pay due regard to the convenience of the party' affected. But 
 a court of equity has the power to make and enforce an order ol' this kind, 
 and where the facts to be determined can not be discovered except by in- 
 spection of a mine in the possession of the defendant, and accessible only 
 by a deep shaft and machinery, it would be a denial of justice to refuse it 
 Id. 
 
 3. Obstructions — Ventilation. — Order for inspection of coal mines, the 
 defendant being compelled to remove obstructions and to open the air 
 courses. Earl of Lonsdale v. Curwen, 693 
 
 See Injunction, 13. 
 
 IRRIGATION— See Fraud, 22. 
 JUDGMENT— See Pleading and Practiob, 18. 
 JURIES— See Plbadino and Practiob, 10. 
 
 JURISDICTION. ' 
 
 1. Jurisdiction of V. 8. courts in chancery. — The jurisdiction of the 
 circuit couit of the United States is limited to certain persons and subjects; 
 but within those limits it is complete and full; and in giving the relief 
 prayed for it has all the powers of the English High Court of Chancery. 
 U. S. V. Parrott, 3.36 
 
 2. Tort-feasor beyond jurisdiction not a necessary party. — In an ac 
 
Index. ?29 
 
 JURISDICTION. Continued. 
 tion against, joint and Beveral toit- feasors to restrain the diversion of 
 water, if one of the defendants resides beyond the jurisdiction of the 
 court, so that he can not be served with process and does not voluntarily 
 appear, the bill may be amended by omitting his name, and the court will 
 exercise jurisdiction as to the remaining defendants. Cole Co. v. Vir- 
 ginia Co., 503 
 
 3. Waiving place and mode of trial.^k. defendant who is entitled to 
 a trial in a certain county by a jury waives these .rights by submitting 
 to a trial by the court in a different county. West Point Co. v. Reymert, 
 
 528 
 
 4. Jurisdiction of ,U. S. courts over foreign corporations. — A cor- 
 poration, organized in the State of California, but owning and working 
 mines in Neyada, having agents who are served with process in Nevada, is 
 a person found in the district within the meaning of. the Judiciary Act of 
 1789. Thornhurgh v Savage M. Co., 667 
 
 5. Idem — Service in such cases. — A corporation,, organized in Cali- 
 fornia, but owning andoperating mines in Nevada, is subject to all the lia- 
 bilitieagrowing out of its mining business or its ownership of mining prop- 
 erty, and can bereached by process of the circuit court, by service upon its 
 resident managers, under section 29 of the Practice Act of Nevada, 
 adopted by the rules of the United States Circuit Court; and such corpo- 
 ration is a body politic within the State of Nevada. Id. 
 
 See Injunction, 43, 71; Pakties, 2, 8; Pleading and Pjjacticb, 9- 
 
 LACHES. 
 
 1. Bight to rescind, lost hy delay'— Where there is undue delay in 
 the offer to rescind a contract, and the value of the stock which should 
 have been tendered on the discovery of the fraud, has nleanwhile declined, 
 it amounts to an affirmance of the contract, and the right of rescission is 
 lost. Learning v. Wise, 41 
 
 2. Standing hy: — It was in proof tha,t defendants knew of the direc- 
 tion and extent of plaintiffs' work, which they allowed to be continued 
 without objection; even if this fact were only doubtful it would be suffi- 
 cient to defeat an injunction, for they should have been on their guard to 
 prevent the expenditure of money on what they meant should not be real- 
 ized upon by the parties expending it. Mammoth Vein Coal Co.'s Ap- 
 peal, 460 
 
 3. The delay of two years in bringing suit for injunction to restrain 
 the working of a mine, is a fact seriously affecting the claim for an in- 
 junction. Lyon V. Woodman, • 494 
 
 4. Laches in obtaining possession. — If a party undertakes to subject to 
 his dominion any portion ofihe public domain, the law will protect him 
 in his possession, if he pursues the work of inclosing the tract with reason- 
 able diligence; but in this case the plaintiff, having failed to show any 
 effort on his part to subject the land to his control for a period of two 
 years, was held to have shown an inexcusable want of diligence. Rivers 
 V. Burbank, 584 
 
 See Injunction, 12, 63; iNsoLVBNcy, 2; Stock, 1. 
 
730 Index. 
 
 LEASE. 
 
 1. Lease implies covenant for quiet enjoyment] hut not against tort- 
 feasors. — Every lease implies a covenant for quiet enjoyment. But it ex- 
 tends only to possession, and its breach arises only from eviction by means 
 of title. It does not protect against entry and ouster by a tort-feasor, nor 
 even agrainst the assertion of the right of eminent domain. Schuylkill <& 
 Dauphin Co. v. Schmoele, 480 
 
 2. Idem — An action of ejectment followed by a writ of eslrepement is 
 no breach of the covenant; and this result is not produced until it reaches 
 actual or virtual eviction. Id. 
 
 3. Parol lease — Statute of Frauds. — Whether a parol lease, vfithout 
 expressed limit of time, if established by clear and equivocal proof, would 
 be valid under the Statute of Frauds, as a lease for one year, and whether 
 it would be renewed from time to time by payment of rent, not consid- 
 ered; but it seems that Ch. 260 of 1860, amended by Ch. 117 of 1872, does 
 not affect the case. Clegg v. Jones, 579 
 
 4. Covenant to workto fullest extent. — A covenant in a leasebinding 
 the lessee to "get the demised clay to the fullest practicable extent con- 
 sistent with the means of sale of bricks and tiles to be made therefrom," 
 does not bind the lessee to go on working at a loss, even though a means 
 of sale, at an unremunerative rate, might have been found for bricks 
 made out of the demised clay. Newton v. Nock, 611 
 
 5. Usual covenants. — Independent of special custom, a clause in a 
 lease allowing the lessee to determine the lease when the mines demised 
 are incapable of being worked to a profit, is not a clause usually inserted. 
 Strelley v. Pearson, 618 
 
 6. Practice as to settling terms of lease. — On reference to chambers, 
 to settle the terms of a lease, the court will, when convenient, make a 
 declaration as to the insertion of a particular clause with regard to which 
 an issue has been raised in the pleadings. Id. 
 
 See Fraud, SO; Injunction, 29, 67, 75, 109, 116. 
 
 LICENSE. 
 
 1, Licensee after revocation is a trespasser. — One engaged in mining 
 under a revocable license which license has been revoked, becomes a mere 
 trespvisser if he continues to, mine after the revocation. Lockwood v. 
 Lunsford, 532 
 
 See Injunction, 10; Public Domain, 4. 
 
 LODE— See Fraud, 13. 
 
 MANDAMUS— See Contempt, 1; Injunction, 34. 
 
 MEASURE OF DAMAGES. 
 
 1. Execution of bond — Recital. — Where G. and N. executed a bond 
 for an injunction in which it is recited that G. had applied for the wi-it as 
 the agent of H., but the bond was signed and sealed by G., without other 
 reference to H. : Held, that the description of himself as agent in the 
 body of the instrument did not exclude liis personal Uability. Gear v. 
 Shaw, 643 
 
 See Injunction Bond; Trespass, 2. 
 
Index. ' 731 
 
 MERGER. 
 
 1. A note is not merged in an agreement which does not by its terms 
 or by legal intent defeat a right of actioa thereon. Creighton v. Van- 
 derlip, 172 
 
 MINES— See Consideration; Fraud, 14. 
 
 MINEPALS— See PnBLic Domain, 2, 5. 
 
 MISTAKE— See Affidavit, 1. 
 
 MORTGAGE. 
 
 1, Mortgagee in possession — Tender. — If plaintiff be a mortgagor, 
 and the defendant a mortgagee who alleges there is still a subsisting 
 claim against the property, though an injunction may be granted to stay 
 a wanton or improvident waste by the mortgagee in possession, yet the 
 plaintiff must, before he entitles himself to relief, bring into court the 
 amount due, or offer so to do. Irwin v. Davidson, 237 
 
 2. Mortgagor may continue mining. — A charge of waste, whereby the 
 mortgage security is diminished, is always a sufficient ground for an in- 
 junction, as between mortgagor and mortgagee; but when the property 
 was purchased and is occupied for mining purposes, use of the property in 
 mining operations can not be considered waste. Capner v. Flemington 
 M. Co'., 264 
 
 See Injunction, 14. 
 
 NEW TRIAL. 
 . 1. New trial, when not allowed, on reversing judgment. — No proba- 
 bility appearing that the evidence would be materially different on a nfew 
 trial, this court, on. reversing a judgment for the plaintiffs, directs a dis- 
 missal of the complaint. Clegg v. Jones, 572 
 
 NOTICE. 
 
 1. Notice required hy statute. — An order refusing an injunction will 
 not be disturbed on appeal if the record fails to to show a notice of the 
 application or an order to show cause as required by statute. Lady Bryan 
 M. Co. V. Lady Bryan M. Co., 478 
 
 2. Judicial notice of suits affecting the mine. — In applications for in- 
 junction a judge may take judicial notice ot the files of his own court show- 
 ing suits involving the legal title to the property. Lyon v. Woodman, 494 
 
 3. Order without notice vacated. — An injunction granted at chambers 
 without notice may be dissolved without notice. Leitham v. Cusick, 516 
 
 NONSUIT — See Pleading and Pkactioe, 6. 
 
 NOTICE— See Injunction, 15, 21. 
 
 OIL — See Incorporeal Hereditaments, 1; Injunction, 115, 118. 
 
 ORE — See Injunction, 50. 
 
 PARTIES. 
 
 1. Necessary parties — Non-residents. — The general rule in a court of 
 equity is that all persons interested in the object of the bill are necessaiy 
 and proper parties. There are exceptions to the rule as, e. g., parties not 
 within the jurisdiction; and where such parties are not indispensable the 
 bill will be retained. U. S. v. Parrott, 336 
 
732 Index. 
 
 PARTIES. Continued. 
 
 2. Parties beyond jurisdiction.-~k person who resides beyond the 
 jurisdiction of the court, althoujfh named as a defendant in the bill, is 
 substantially not a party to the action until he is served, or till he appears. 
 Cole Co. V. Virginia Co., 503 
 
 3. Parlies beyond jurisdiction — Severable interests. — It is a general 
 rule in equity that all persons materially interested in the matter in 
 controversy should be made parties, in order that complete justice may be 
 done and a multiplicity of suits be avoided. If, however, some of the 
 parties reside beyond the jurisdiction of the court, and the interests of 
 those present are severable from the interests of those absent, the court 
 will proceed to a decree. Cole Co. y. Virginia Co., 516 
 
 See Injunction, 4; Jurisdiction, 2; Trust, 1. 
 
 PARTNERSHIP— See Tenant in Common. 
 PATENT— See Agent, 3. 
 
 PERSONAL LIABILITY. 
 
 1. Personal liabililj/ of directors. — Directors do not become person- 
 ally liable for the fraud and misrepresentations of the active managers 
 of a corporation from the mere fact of their holding such ofSce in the 
 company. Knowledge of or participation in the guilty act must be 
 brought home to the person charged. Arthur v. Griswold, 46 
 
 2. No personal responsibility for fraud of associates. — The fact, 
 therefore, that a defendant's name was published as trustee, and stock 
 issued to him, do not make him responsible for a fraud carried out by other 
 trustees and agents of the corporation. Id. 
 
 PLEADING AND PRACTICE. 
 
 1. Several action. — Other persons purchased stock at the same time as 
 the plaintiff, and under like circumstances: Held, the several contract of 
 each, and that upon rescission the defrauded party alone was entitled to 
 recover. Burns v. McCabe, 1 
 
 2. Misjoinder — Sundry counts — Facts of the case. — Plaintiff sued 
 five persons, all trustees of the corporation; one of the two counts on 
 which he went to the jury was based upon alleged fraudulent representa- 
 tions by which plaintiff was induced to make loans to the company; the 
 other count was upon the statute making officers personally liable for 
 making false reports. The evidence would have justified a verdict against 
 four of the defendants who had signed the report, but the fifth was not 
 liable on that count because he had not signed the report, and was not 
 liable under the other evidence upon the first count: Held, that a new 
 trial must be had as to all the defendants. Arthur v. Grisivold, 46 
 
 3. Variance, — A party can not make out one case by his bill and an- 
 other by his proof; they must correspond. Tuck v. Downing, 84 
 
 4. Appeal to Supreme Court from judgment on demurrer. — Where a 
 demurrer to a petition in a suit in equity is sustained in the district court, 
 the cause may be taken by appeal to the Supreme Court, Arnold v. Ba- 
 ker, 111 
 
 5. Review of evidence m chancery case. — In a suit in chancery where 
 the evidence has been taken before a master, the appellate court will ex- 
 
Index. 733 
 
 PLEADINa AND PRACTICE. Continued. 
 amine into the entire record, and affirm or reverse the decree of the court 
 below upon principles of equity", as the facts will justify, Jackson v. Al- 
 len, 127 
 6. Nonsuit — Shifting position in appellate court. — The ruling that 
 a compulsory nonsuit may be allowed, affirmed; but a defendant asking 
 nonsuit on specific grounds below, can not shifthis position on appeal. If 
 the evidence does not justify a verdict, or if a verdict found would be set 
 aside by the court, a nonsuit ougat to be granted. Mateer v. Brown, 
 
 156 
 ^. Conveyance, pending trial. — ^Where plaintiffs have parted with their 
 interest in the subject-matter, the suitcan not proceed until the proper par- 
 ties are substituted,' if the objection be insisted on. Boyle v. Laird, 301 
 
 8. General relief. — General relief should not be granted on a bill pray- 
 ing only the issuance of an injunction. Id. 
 
 9. Plea to jurisdiction. — When the want of jurisdiction is not patent 
 on the record the proper mode to take advantage of it is by plea. Fre - 
 monty. Merced M. Co., 332 
 
 10. Form of finding and decree upon the issue of citizenship submit- 
 ted to a jury. Id. 
 
 11. Waste and ejectment, being legal remedies, can only be main- 
 tained by the owner of the legal title — not by the cestui que trust. Oillett 
 V. Treganza, 432 
 
 12. Prayer determines nature of action under code. — In actions 
 brought since the adoption of the code, it is a general rale that the nature 
 of the action i9 to be determined by the prayer for relief; and this rule 
 may be safely adopted in cases of doubt. Id. 
 
 13. Verdict upon matter not in issue. — The court instructed the jury: 
 "The answer in this case admits that defendants have extracted gold of 
 the value of $1,000 from the ground claimed by plaintiffs, * * and if 
 the jury believe from the evidence that plaintiffs, at the time of the alleged 
 trespass, were entitled to the-'lJOSseRsion of such ground, they should find 
 a verdict in favor of plaintiffs for $1,000 damages." Held, that because 
 the jury found a verdict for one instead of one thousand dollars, we are 
 not therefore to conclude that they did not find that the plaintiffs were 
 entitled-to the mining ground in dispute. There was no issue upon the 
 question of damages, and that part of the verdict was upon a matter not 
 properly before the jury. McLaughlin v. Kelly, 446 
 
 14. The Practice Act of California dholishes all forms of action, and 
 under it we must look solely to the material facts put in issue by the 
 pleadings, to ascertain what was in fact determined by the findings of the 
 court or the verdict of the jury. Id. 
 
 15. Verification — Information and belief. — A verification which con- 
 forms to section 118 of the Practice Act of Nevada is sufficient, and that 
 implies that averments may be made upon inform atiorl and belief. Sierra 
 Nevada M. Co. v. Shears, 549 
 
 16. To a count of a declaration upon a bond, non est factum is the ap- 
 propriate plea, but nil debet is proper where the bond is set forth merely 
 as inducement. Gear v. Shaw, 643 
 
734 Index. 
 
 PLEADING AND PRACTICE. Continued. 
 
 17. Defendants for whom no app arance is entered. — Where coun- 
 sel, in the first of a series of pleas fifed, expressly designate the de- 
 fendant for whom they appear, the words, "the defendants" in the 
 subsequent pleas must be referred to the defendants named in the first 
 plea, and can not fairly be held to be an appearance for a defendant 
 served, but not named in the first plea. There being no appearance for 
 such defendant it is error to enter final judgment against all the defend- 
 ants, without first entering judgment by default against the one for whom 
 there is no appearance. Streeter v. Marshall S. M. Co., 660 
 
 18. An entire judgment, if reversed as to one defendant, must be re- 
 versed as to all. Id. 
 
 See Affidavit, 2; Injunction Bond; Jurisdiction; Nbw Trial. 
 
 POSSESSION. 
 
 1. Possession of the subject of controversy is property. Brennanv. 
 Gaston, 426 
 
 2. Recorded surveys evidence of possession — Burden of proof. — Under 
 the statutes of Nevada, in order to make certain surveys evidence of pos- 
 session, it is a. condition precedent that' the surveyor's certificate should 
 be recorded within thirty days from the date of its delivery, and the bur- 
 den of proof is, in this case, held to be upon the plaintiff to show that 
 the certificates were recorded in time. Rivers v. Burbank, 584 
 
 3. The rule that possession of a part is extended hy construction to 
 the whole of lands called for in paper title, does not apply to claims on 
 the public domain held under an inoperative deed. Id. 
 
 4. Possession of public land — Insufficient boundaries. — Plaintiff 
 claimed to be in possession of a tract of public land, through which the 
 defendant dug a ditch. The land was used chiefly for grazing purposes, 
 the boundaries very imperfectly marked, and cattle belonging to stran- 
 gers were allowed to graze with those of the plaintiff upon the land : Held, 
 that the testimony set forth in the opinion was insufficient to show 
 that plaintiff had possession of the land over which the ditch was dug. 
 Id. 
 
 See Ejectment, 2; Injunction, 18, 57, 66, 97; Laches, 4. 
 
 PRINCIPAL AND SURETY"— See Injunction, 52. 
 
 PROSPECTUS. 
 
 1. Responsibility for prospectus. — A director of a corporation who 
 knowingly issues or sanctions the circulation of a prospectus containing 
 material mis-statements is liable in damages to a party induced to 
 purchase stock by the contents of such prospectus. Morgan v. Skiddy, 
 
 74 
 See Fraud, 4. 
 
 PUBLIC DOMAIN. 
 
 1. Liberal construction of the statutory grant — The grants to miners 
 under the act of Congress are to be liberally construed in favor of the 
 grantee. Robertson v. Smith, 196 
 
 2. The right to explore the mineral lands implies the right to extract 
 the minerals when found. Id. 
 
Index. 735 
 
 PUBLIC DOMAIN. Continued. 
 
 3. The fee in possessor;/ claims remains in the United States, but the 
 rights of miners have been carved out of it. Id. 
 
 4. Implied license ; right of holder to protect his claim. — Under the 
 legisjation and implied license of the State and of the United Stat s, the 
 owner of a mining claim has a good vested title to the property, and it 
 should be so treated until his title is divested by the exercise of the higher 
 right of the superior proprietor; and in the meantime his right to protect 
 the property is as full and perfect as if he were the tenant of the superior 
 proprietor. Merced M. Co. v. Fremont, 813 
 
 5. Title of the U. S. in minerals. — Under the treaty of Guadalupe 
 Hidalgo, the United States acquired title to the minerals, and they have 
 not dedicated them to the public. U. S. v. Parrott, 836 
 
 See Claim; Possession. 
 QUARRIES— See Injunction, 11, 88. 
 
 QUO WARRANTO. 
 
 1. Usurpation of office, etc. — The right to an oiHoe in a company can 
 not be tried on application for injunction, nor can it restore an officer to 
 his position, nor can it remedy the removal of a company officer after the 
 removal has been already made. Sherman v. Clark, 483 
 
 RAILROADS— See Injunction, 94, 115. 
 
 RECEIVER— See Injunction, 121. 
 
 RES ADJUDICATA. 
 
 1. Effect of verdict. — If in an action of trespass the jury find gener- 
 ally for the plaintiffs, it concludes the' parties upon all questions material 
 to the recovery of plaintiffs, which are distinctly put in issue. McLaugh- 
 lin V. Kelly, 446 
 
 RESCISSION. 
 
 1. No recover;/ of purchase price with rescission. — There can be no 
 action by the defrauded against the guilty party for the direct recovery 
 of the entire consideration paid, until after complete and prompt rescis- 
 sion; and though rescission be impossible (unless prevented by the guilty 
 party) the rule remains the same. Getty y. Devlin, 29 
 
 See Estoppel; Fraud; Laches, 1. 
 
 RESERVATION. 
 
 1. Reservation may operate as exception- — A reservation in a deed 
 will not give title to a stranger, but it may operate, when so intended by 
 the parties, as an exception from the thing granted, and as notice to the 
 grantee of adverse claims as to the thing excepted or reserved. West 
 Point Co. V. Reymert, 528 
 
 SEVERANCE. 
 
 1. Rights of lord of the manor. — Though the property in the minerals 
 be in the lord of the manor, it does not follow that he can enter and take 
 them without consent. Grey v. Duke of Northumberland, 251 
 
 STATUTE OF FRAUDS— See Lease, 3. 
 
 STATUTE OF LIMITATIONS— See Adverse Possession. 
 
736 Index. 
 
 STOCK. 
 
 I. Diligence w notifying purohaser of Joss of stocle. — The question 
 whether a party who has lost stock by theft, as alleged, has used due 
 diligence to prevent loss to third parties, can not arise before defendant 
 shows himself to be an innocent purchaser for value. Sierra Nevada M. 
 Co. V. Sears, 64S 
 
 See Ihjunction, 77, 98. 
 
 TENANT FOR LIFE-See Timber, 1. 
 
 TENANT IN COMMON. 
 
 1. Co-tenants not partners. — A mere co-tenancy does not establish a 
 partnership so as to establish a relation of trust and confidence. Tuck v. 
 Downing, 84 
 
 See Injunction, 104, 105. 
 
 TENDER. 
 
 1. Tender of deed into court. — Making and filing with the clerk, of a 
 deed of release, after suit brought, allowed in this case. Burns v. 
 McCdbe, 1 
 
 See Mortgage, 1. 
 
 TIMBER. 
 
 1. Tenant for life. — Tenant for life, liable to waste, having sold tim- 
 ber can not prevent the vendee from cutting it. Wentworth v. Turner, 
 
 249 
 
 TIME. 
 
 1. Reasonable time a question of law. — Where the facts are undis- 
 puted, what is a reasonable time or an undue delay is a question of law 
 for the court. Learning v. Wise, 41 
 
 TRESPASS. 
 
 1. Party leasing lands of stranger linhle for the rents. — Where coal 
 is mined by lessees of persons claiming to be owners of the same, the real 
 owners may waive the tort and sue the lessors for the rental received by 
 them, as money had and received. Hawesville v. Hawes, 193 
 
 2. Measure of damages in trespass bi/ plaintiff out of possession. — 
 A person disseized of a mine can not hiaintain trespass, except for the 
 entry and ouster, in which case damages would be restricted to the entry 
 and ouster; but damages for a continuance of a trespass can be recovered 
 only after the party disseized has regained possession. Bracken v. Pres- 
 ton, 267 
 
 See Assignment, 2; Corporations, 5; Injunction; License, 1. 
 
 TRUST. 
 
 1. Variance — Cestui que trust suing as if he held the fee. — Although 
 the equitable owner may be entitled to have the waste of his land en- 
 joined, such relief can not be granted in an action where he claims to 
 hold the legal title and proves only an equitable estate. Gillett v. Tre- 
 ganza, 432 
 
 See Fraud, 15. 
 
 TUNNEL—See Injunction, 84. 
 
Index. 737 
 
 VENDOR AND PURCHASER— See Agent, 1; Considbbation; Fbaud; 
 Rescission. 
 
 VENTILATION— See Inspection, 3. 
 
 VERDICT. 
 
 1. Jiiry finding in equity case. — The verdict of a jury in equitable 
 actions is but advisory; the court of appeal reviews the whole evidence, 
 and the instructions to the jury are immaterial. Law v. Grant, 57 
 
 2. Verdict in equity not conclusive.' — In an equitable action a verdict 
 has not the same conclusive weight as in an action at law; and, on appeal 
 from a judgment pursuant to such verdict, this court reviews the evidence. 
 CJegg v. Jones, 572 
 
 8ee Bond, 1; Pleading and Pbacticb, 13; Res Adjudicata. 
 
 WARRANTY— See Considbkation. 
 
 WASTE — See Injunction; Pleading ^nd Pbacticb, 11. 
 
 WAT — See Highways, 
 vol. tii. — 47