ledges, sometimes greater, sometimes less in extent, are barren. It is not, however, a very material question whether there is an ore connection or not between the surface where the Colfax notice was posted and the ore chambers beneath. In order to hold a ledge, it is not necessary that the notice should be placed on the ore or any part of the vein or lode. It is sufficient, as the jury was instructed, if the notice is placed in such reasonable proximity and relation to the ledge as, in connection with the work done under it, to give notice to all comers what ledge is intended. Here is the case of a ledge, deep in the ground, not appearing at the surface in the shape of solid ore, but only in vein matter. There is on the surface broken lime, spar, debris, mixed with small quantities (occasional bunches) of ore. This was deemed by the locators of the Ward Beecher and Colfax, and the event proves with reason, a good indication of a ledge beneath, if not a ledge itself. They made their locations on these croppings, and sank shafts for the ledges. Can any court go to the length of holding that the notices and the work did not give reasonable notice as to what ground was claimed? If it could be so held, what would become of the Ward Beecher claim itself? * These views, if correct, are, in my opinion, conclusive. * * * * I think a new trial ought to be granted, and it is so ordered. "W. H. BEATTY, D. J." * * To show that this order should be affirmed, I think but little need or can be added to the foregoing very able and perspicuous statement. The correctness of its exposition of the facts and testimony is not assailed; but it is argued "that the question is here, as it was below-is the evidence insufficient in law? that it is error to grant a new trial upon the ground of insufficiency of the evidence, where there is a substantial conflict of testimony, for the jury and not the court must respond to questions of fact." I do not so understand the law. By a rule almost coeval with the maxim quoted, certainly one as deeply rooted in the law, the nisi prius judge has jurisdiction, on motion for a new trial, to decide, as a question of fact, whether the scale of evidence which leans against the verdict very strongly preponderates: 3 Black. Com. 392. It is not enough to authorize the appellate court to reverse such decision, that the evidence appears fully to support the verdict. It will only be reversed for the most cogent reasons, such as a conclusive preponderance of evidence in favor of the verdict: 21 Cal. 414; 21 Iowa, 337. I understand the counsel for the appellant to contend for such a preponderance on one point only, viz.: the intention to take the Ward Beecher ledge by the Colfax location. This intention, it is argued, is conclusively negatived by the circumstances; that the Colfax recognizes the Ward Beecher location and is parallel to it, and that the locators claim the discovery of a ledge. If these circumstances are conclusive of anything, it is that the locators of the Colfax believed it to be a newly discovered and unappropriated vein, not of the absence of an intention to locate it in consequence of such belief. In fact, Sproul swears that the Colfax was located for the protection of the Ward Beecher, and was located and worked under the impression that they were one and the same. There is nothing in the fact that a discovery claim was taken by Hart and Harps to conclusively impeach this statement of Sproul. The Colfax notice reads: "COLFAX LODE. "We, the undersigned, claim 1,000 feet on this lode, 600 ft. south, 400 ft. north from this monument. "South. "H. Harps, 300. "L. J. Hart, 300. North. L. Barris, 200. Barris and Sproul did not become tenants in common with Hart and Harps of the whole one thousand feet. They attempted to acquire a segregated claim of four hundred feet running north. Their title to this could not be vitiated by reason of any excess in the number of feet claimed by Hart and Harps. Barris and Sproul took up just the number of feet they had a right to take on the hypothesis that they were making a relocation. In favor of the order, we must assume every fact which the district judge finds a clear preponderance of evidence for, and which we can not find a clear preponderance against. We must, therefore, assuine, at least, that the Colfax notice was posted within a few feet of the shaft upon which the first work was done under it; that before the deed in question was executed, this shaft had been sunk ten or twelve feet and a drift run in the ledge; that, from the very top of it, it was within the walls of the ledge or the lateral boundaries of the deposit, and that this work was done for the purpose of holding this ledge. Upon this assumption of fact, we can not say, as an inference of law, that this was not a location-in fact and in intention of the 300 feet of the ledge in dispute, lying next south from the Ward Beecher location monument; that the title so acquired would not have sustained an ejectment against a subsequent appropriation of even date with said. deed, and a recovery thereby of that 300 feet of this very ledge, as and because it was the Colfax ledge; nor that said 300 feet would not pass by conveyance as part of the same. There is no law to prevent a party from relocating his own claim by a different name; and if he does so and then conveys it by the latter name, I can see no reason why the existence of the former location should invalidate the deed. Of course he can not thus acquire title to more ground than the law allows him to locate. But that which he had a right to relocate would pass by the deed, notwithstanding the nullity of the relocation to the extent of the excess. However, it is only necessary in this case to affirm the ruling that, by the Colfax location, this ledge acquired a name and description by which it could be conveyed. The deed from Roberts to Phillpotts, for and in consideration of fifty thousand dollars in hand paid, grants, bargains, sells, remises, releases, conveys and quitclaims the premises described, to have and to hold to said Phillpotts, for use and benefit of the Eberhardt and Aurora Mining Company. It is contended that the legal title vested in said company and that, therefore, the action should have been prosecuted in its name. The argument is, that having adopted the common law, the English statute of uses, passed before the colonization of America, is here in force and by it the use was executed. The position that the statute of uses is part of our law is supported by an imposing array of authority; but, if this is to be considered as a deed of bargain and sale, it is clear that the legal title remained in Phillpotts. In the language of Blackstone, no use can be limited on a use, and when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of a further use to another person is repugnant and therefore void; but, though not a use which the statute can execute, yet still it is a trust in equity, which in conscience ought to be performed: 3 Com. 336; 5 Wallace, 282; 17 Cal. 44. The rules laid down in respect of the construction of deeds, says Lord Mansfield, are founded in law, reason, and common sense that they shall operate according to the intention of the parties, if by law they may; and if they can not operate in one form, they shall operate in that which, by law, will effectuate the intention. If this had been simply a feofiment with livery, or a release to one already clothed with an estate in pos session, it may be that the company would have taken the legal title, even in opposition to the intention of the parties, on the principle that the will of the subject can not control the express enactment of the legislature. But if our statutes have not rendered livery of seizin and possession in the releasee unnecessary to the respective efficacy of a feoffment and release, it is clear that we should construe this deed to be a bargain and sale, because in that way alone it can then have the operation intended, or any operation. In some of the States statutes have been passed providing in terms that the feoffee shall be seized without livery and the releasee without possession, but I can find no such or equivalent provision in the statutes of this State. And on the supposition that the statute of uses is here in force, no inconvenience can result from the absence of such enactments. For a feoffment without livery, or a quitclaim to one not in possession would still pass the legal title, by rais ing a use, which the statute at once executes: 2 Smith's Leading Cases, 521. I am satisfied that this is the correct view, and that this is to be treated as a deed of bargain and sale, which by force of the statute of uses conveys the legal title to Phillpotts in trust for the company-a trust cogniz able only in a court of equity. But even if it can be held that the provision in our statutes for the recording of deeds dispenses with the common law requisite of livery of seizin, and that the recording of a deed takes the place of livery, and is equivalent to it, there is still sufficient authority that this action was well brought in the name of Phillpotts as the proper party plaintiff. For we would then have, as stated in Matthews v. Ward, infra, a deed capable of transferring the estate either as a feoffment, release, or bargain and sale-the operative words of each species of conveyance being used. The question then would be, not whether, if it can not operate in one way, it shall in another; but what is the character of the deed in point of law? The intention of the parties was, undoubtedly, to vest the legal title in Phillpotts, otherwise the conveyance would have been made directly to the corporation. By law it may operate as a bargain and sale, and so to construe it will most ef fectually accomplish the intention of the parties. And such construction does no violence to the language used, which expresses an intention to convey the estate by means of a bargain and sale; or, as laid down in Smith's Leading Cases, the deed may be regarded either as a statutory grant, or as deriving its effect from the common law or the statute of uses, as will best subserve the object for which it was executed. Matthews v. Ward's Lessee, 10 G. & J. 448; Guest v. Farley, 19 Mo. 157. According to Blackstone, the only service to which the statute of uses was consigned in England at the time of the colonization of this country, was in giving efficacy to certain species of conveyances; and that service we allow it to perform here, by acting once on this deed and executing the use created by it into a legal estate in Phillpotts. I think the order appealed from should be affirmed. 1 Negative testimony. The rule in respect to the relative value of positive and negative testimony has no application to the case where one party to a verbal mining lease testifies that it did, and the other that it did not, include certain premises. Lease of tortuous vein. When lessor demised the "Watkins Range or Works," being a vein or deposit of lead and zinc ore supposed to bear a certain general course, but which was afterward traced to the east 1 Tiley v. Moyers, 4 M. R. 320. |