side of said monument and notice and parallel with the centre line of said location. That said claim was and is known as the Bilderrain vein or lode, and was vacant and unappropriated at that time. At the time of plaintiff's location no mining district had been established, nor had any mining laws or regulations been established in that locality. "That at or shortly after the location of said claim hereinbefore found some work was done thereon by the plaintiff through his duly authorized agent, and that plaintiff paid for the same, and also the expenses of locating said claim and recording the notice posted thereon. "That the plaintiff has always and at all times asserted his ownership of said claim, and as far as he could maintain his possession and control of the same; that he never abandoned or forfeited his ownership of right of possession thereto. "That on the 21st day of January, 1875, the defendants placed a monument upon said claim located by plaintiff, as hereinbefore found. That subsequently to the location of said mining claim by plaintiff, and the recording of his notice, the minors met and organized a mining district, etc. "That the defendants recorded their notice and did some work upon said claim. That they were at the time notified of plaintiff's claim, and were by plaintiff's agent forbidden to do any work thereon." Decree for plaintiff as prayed for. L. Quint and R. M. Clarke, for respondent. PER CURIAM. The findings do not show that plaintiff has had the possession of any definite part of the mining ground in controversy, and plaintiff is therefore not entitled to a decree based on his actual possession of any specific portion. Nor do the findings show that either party has acquired title under the Act of Congress of May 10, 1872; both parties having attempted to make location after .the passage of that act, and both having failed to distinctly mark their lo cations on the ground so that the boundaries can be readily traced. Judgment and order reversed, and cause remanded for a new trial. [No. 5,654.] [Filed August 16, 1878.] HOLLAND ET AL., RESPONDENTS, VS. MOUNT AUBURN GOLD QUARTZ MINING CO. LOCATION OF MINING CLAIM-WHAT REQUISITE UNDER THE ACT OF CONGRESS OF MAY 10, 1872.-The plaintiff posted a notice of location on a white oak tree at the north end of the claim, and wrote on a small piece of paper "south end of Como Mine," and posted it on a tree at the south end of the claim. The notice was in these words: "Notice is hereby given that we have this day located and claim 1,500 feet on this quartz ledge, commencing at the south line of the Vigilance Company's claim, and running southerly along the ledge for said distance. We also claim all dips, spurs, angles, and variations within 300 feet of the ledge on both sides. Held: that the location was not distinctly marked on the ground so that its boundaries could be readily traced as required by the Act of Congress of May 10, 1872. Appeal from Fourteenth District Court, Nevada County. Suit in ejectment to recover a quartz mining claim, located prior to May 10, 1878. The defendants were in possession of said claim prior to the date when the plaintiffs attempted to locate it, but the plaintiffs now claim by virtue of a relocation, alleging that the defendants had not done the amount of work on said claim required by the statute. J. L. Holland, one of the plaintiffs, testified: "I am one of the plaintiffs in this case. I know to some extent the mining customs. The custom is to post a 'notice of location,' record a copy of the notice posted, and go to work on the claim." The following is the notice as recorded: "Notice is hereby given that we the undersigned have this day located and claim 1,500 feet on this quartz ledge, commencing at a white oak tree standing about fifty feet north-east of G. W. Reagan's house and running thence along the ledge in a southerly course for said distance to a black oak, which is about two feet in diameter, with top broken off and dead on west side, and standing in an inclosure-Cleveland's. We also locate and claim all dips, spurs, angles, and variations of said ledge for 300 feet on each side of the ledge, the same to be known as the Como Mine, Nevada Mining District, Nevada County, California. "August 25, 1876. "EDWIN TILLEY, "J. L. HOLLAND.' "I posted it on the ground described in the complaint August 25, 1876, on Reagan's tree. We located on Friday, and commenced work the following Monday. We have worked two men continuously until this action was brought. The ledge is seen readily a good portion of the distance. I posted the notice on the white oak tree at the north end." Upon cross-examination he was asked: "What was done to mark the boundaries of your claim?" and answered, "Nothing except I put the notice on the white oak tree, and wrote on a small paper, 'south end of Como Mine,' and posted it on a tree at the south end of the claim. Nothing else was done to mark the boundaries until I think in December (which was after the commencement of the suit)." The witness was shown an exhibit in these words: "Notice is hereby given that we have this day located and claim 1,500 feet on this quartz ledge, commencing at the south line of the Vigilance Company's claim and running thence southerly along the ledge for the said distance. We also claim all dips, spurs, angles, and variations within 300 feet of the ledge on both sides. "EDWIN TILLEY, He testified that this was a copy of the notice posted on the claim, which was changed to the phraseology of the notice first set forth when prepared for record. This witness had sworn positively that the notice as recorded was precisely the notice as posted, and that he had never written but one. H. S. Bradley, plaintiff's witness, testified that he had surveyed the ground and presented a map showing the land in dispute. Upon cross-examination he stated, that he made the survey in December (after the suit was brought), and that he found no marks or monuments to indicate a previous marking of the boundaries. The defendant asked for a nonsuit, which was refused. The above was all the testimony upon the question of boundaries. Long & Huff, for respondents. Johnson & Cross, for appellant. PER CURIAM. The defendant was in possession of the mining ground prior to the date when the plaintiffs attempted to locate it under the provisions of the Act of Congress of May 10, 1872. Before the commencement of this action the location of plaintiff was not distinctly marked on the ground so that its bouudaries could be readily traced, as required by the act. (Rev. Statutes U. S., Sec. 2324.) Judgment and order reversed, and cause remanded for a new trial. In the United States Circuit Court, ADAMS ET AL., VS. BRADLEY, GOVERNOR, ET AL. 1. SUIT AGAINST A STATE.-A State can not be sued in its courts without its consent. 2. APPEARANCE BY STATE'S ATTORNEY.-The appearance of the District Attorney, or the Attorney-General of the State, on behalf of the State, without express authority of law, does not give jurisdiction over the State as defendant in the action. 3. SECTION 2778, COMPILED LAWS OF NEVADA, does not authorize the AttorneyGeneral to so appear for the State generally in an action, against its officers in their individual capacity, as to make it a party to the action, and conclude it by the judgment. 4. RES ADJUDICATA AS TO STATE.-Treadway sued Slingerland, in his individua! capacity, to recover possession of lands upon which the Nevada State Prison is situated. Slingerland, who was at the time Lieutenant-Governor of the State and ex officio Warden of the State Prison, set up as a defense title in the State, and that he was in possession under the State as Warden of the State Prison, and not otherwise. R. M. Clarke, who was then Attorney-General of the State, appeared as attorney for the defendant without using his official designation in the signature to the pleadings. Treadway recovered judgment. In a subsequent action by the successors in interest of Treadway against the Governor, Warden-the successor in office to Slingerland-and other officers of the State, to recover the same land, held: that the judgment in said case of Treadway vs. Slingerland did not conclude the State or affect its title. SAWYER, Circuit Judge. This is an action brought against L. R. Bradley, Governor; James D. Minor, Secretary of State; and John R. Kittrell, Attorney-General of the State of Nevada, constituting the Board of State Prison Commissioners; and Milton R. Elstner and P. C. Hyman, Wardens of the State Prison, to recover possession of the lands upon which the State Prison of Nevada is situated. In 1870, one A. D. Treadway brought an action in State court against J. B. Slingerland, in his individual capacity, to recover the same land. The complaint was in the usual form where one citizen brings an action against another to recover land, alleging title in the plaintiff, and an unlawful eviction and detention by defendant. Slingerland answered denying the title of plaintiff, and ouster by defendant. He then set up as a separate affirmative defense title in the State of Nevada; that the premises were possessed and occupied by the State of Nevada as a State Prison; that the defendant was Warden of the State Prison, and that he was residing upon the premises, and in charge, with other officers, under the authority of the laws of Nevada as such Warden, and not otherwise. The answer was signed, "Robt. M. Clarke, defendant's attorney," " without any official designation. Slingerland was in fact, at that time, Lieutenant-Governor of the State, and ex officio Warden of the State Prison, and in immediate charge of the premises as such; and Robert M. Clarke was AttorneyGeneral of the State. The court found the legal title to the premises to be in the plaintiff, and that the State had the equitable title; but rejected the State's equitable title on the ground that it had not been pleaded as a defense; and ren |