of the grantors, by his attorney-in-fact, who it was shown had at the time a written power, which was not produced at the trial. The first objection is answered by the statute concerning the conveyance of mining claims (Statutes of 1860, p. 175), which provides that mining claims may be conveyed by bilis of sale or instruments in writing not under seal, and that all conveyances of mining claims heretofore made by bills of sale or instruments in writing not under seal, shall have the same force and effect as prima facie evidence of sale as if they had been made by deed under seal. The second objection does not go to the admissibility of the bill of sale, but to its effect when admitted. It was the bill of sale of Sweet and Barney, as well as Jones. Its execution by Sweet and Barney was fully proven, and that was sufficient to entitle it to admission. If its execution by Jones was not proven, counsel for the defense should have asked the court at the proper time to so instruct the jury, and direct them to disregard the bill of sale so far as it purported to convey the interest of Jones, and if the court refused, taken his exception. Such is the only way in which, under the circumstances, counsel could have made the point which he sought to make by his demurrer to the evidence. But this course was not pursued, there being no exception except to the rul ing of the court admitting the bill of sale in evidence, which ruling, as we have seen, was correct.

But if there was a failure of proof as to the sale by Jones, so far as the bill of sale itself was concerned, the failure was remedied by other evidence offered by plaintiffs, which, although perhaps of a secondary character, was not objected to by the defendants, and which, in our judgment (independent of all the other testimony), not having been objected to, made a prima facie case for the plaintiffs, and put the defendants upon their defense. A book, to which we have before referred, purporting to be a book for the record and transfer of mining claims, and shown to have been authorized by the mining customs and laws in force in the district where the claim in controversy was situated, was offered in evidence by the plaintiffs, and admitted without objection on the part of the defendants. From this book three entries were read to the jury by the plaintiffs. The first showed a location of

the ground in question on the 10th of March, 1855, by Sherman, Perry, Jones, and William O. St. John, one of the plaintiffs. The second showed a transfer by Perry and Jones to William St. John, another of the plaintiffs, on the 7th of February, 1857. The third and last showed a transfer by Sherman to Dow, the only remaining plaintiff, on the 13th of January, 1860. Thus, the title or right acquired by the second location on the 10th of March, 1855, according to this book, became vested in the plaintiffs prior to the alleged entry and ouster of the defendants, which took place on the 20th of March, 1860. This book was at least secondary evidence of the appropriation of the ground and its conveyance to plaintiffs, and not being objected to on the ground that it was secondary, of itself made out the plaintiffs' case under the mining laws of the district, and put the defendants to the proof of the plaintiffs' forfeiture or abandonment under the

same.

We now come to the exceptions to the giving and refusing of instructions.

The defendants relied upon an alleged forfeiture or loss of the right to mine the ground on the part of the plaintiffs, if they had ever acquired such a right, by a failure to work the ground, and keep the right alive, as required by the mining rules and regulations in force in the district. And that, by such neglect and failure on their part, the ground, at and prior to the defendants' entry, had become again, as it was prior to the location under which plaintiffs claimed, publici juris, and open to their occupation. In support of this defense, the book before referred to, containing the rules and regulations of the district, was offered in evidence by the defendants, accompanied with testimony tending to show that plaintiffs had failed and neglected to comply therewith, and had therefore failed to keep alive their alleged right to mine the ground in question.

Without noticing in detail the instructions of the court, it. is sufficient to say that the jury were instructed in effect that if they found from the evidence that the plaintiffs had acquired a right to mine the ground in controversy prior to the entry of the defendants, that right could not be divested by a noncompliance on their part with any rules or regulations adopt

ed by the miners; but that such rules and regulations might be considered by them in connection with the other evidence for the purpose of determining whether or not the plaintiff's had abandoned their claim. We understand the learned judge of the court below to have here used the term forfeiture in its mining law sense, and the word abandonment in its common law sense. Such being the case, the jury were, in effect, instructed that there was not, and could not be, any such thing as a forfeiture under mining rules and regulations, and if so, the instruction was undoubtedly erroneous.

The term forfeiture as used in our mining customs and codes means the loss of a right to mine a particular piece of ground previously acquired, by neglect or failure to comply with the rules and regulations of the bar or diggings in which the ground is situated, prescribing the acts which must be done in order to continue and keep alive that right after it has been once acquired. As a defense it is entirely distinct and separate from that of abandonment. It involves no question of intent, but rests entirely upon the mining rules and regulations, and involves only the question whether, in point of fact those rules and regulations have been observed by the party seeking to maintain or perpetuate the right, regardless of what his intentions may have been. Whereas the principal question involved in the defense of abandonment is one of intention. Was the ground left by the locator, without any intention of returning or making any future use of it? If so an abandonment has taken place upon common law principles, independent of any mining rule or regulation, and the ground has become once more publici juris and open to the occupation of the next comer.

That the miners may make rules and regulations to govern the acquisition and tenure of mining rights has been expressly, and in our judgment, wisely declared by the legislature, with the further declaration that such rules and regulations shall be admitted in evidence and shall control the decision of mining controversies (Pr. Act, Sec. 621): Morton v. The Solambo Min. Co., decided at the present term. Judgment reversed and new trial ordered.

14 M. R. 463.

MORTON V. THE SOLAMBO COPPER MINING CO.

(26 California, 527. Supreme Court, 1864.)

'Usage and custom confined to the district. Questions affecting a mining right should be solved according to the customs and usages of the bar or diggings embracing the claim, whether written or unwritten. 2 Locator can not oust co-tenant by posting new notice-Vested rights of associates. A mining custom which provides that any person who has discovered a vein or lode, and desires to locate a mining claim upon it for himself and others, may do so by putting up a notice, with his own name and the names of those whom he may choose to associate with him appended thereto, designating the extent of his claim, which may amount to 300 feet for himself and 150 feet for each of his associates, is a good and legal custom, but such discoverer can not afterward deprive his associates of their interest by tearing down their names and substituting the names of others.

Location by agent. The law makes the discoverer the agent of those for whom he chose to act, and makes his act their act, regardless of whether they have any knowledge of it or not.

Appeal from the District Court, Fifth Judicial District, Tuolumne County.

The facts are stated in the opinion of the court.

G. F. & W. H. SHARP, for appellant.

A mere mining usage, not established or sustained by a written mining rule, can not have the force of law so as to vest property.

There was no proof that, by the unwritten custom or usage, the effect of simply placing a name upon a notice was to vest property in the person bearing that name; in the absence of such proof, it was error to give such effect to the writing of the name only.

The unwritten custom or usage proven required expressly, in order to vest property or acquire a right, that there must be a compliance with the condition of then "entering upon and working such vein or lode."

There was no proof as to what power the locator had over names used by him. Upon principle, if he could insert a name in a notice, surely he must have the power to erase it. Quoad

1 Table Mt. Co. v. Stranahan, 31 Cal. 387; Post LOCATION.

Chase v. Savage Co., 2 Nev. 9; Post LOCATION.

Murley v. Ennis, 2 Colo. 300; Post PROSP. CONTRACT.

the notice, he is dominus rerum. Especially could he erase the names of Vigoreux and Reviere, for he inserted them without authority: Anderson v. Coonley, 21 Wend. 279; Story on Agency, 126, 127.

There was no acceptance by Amy, Vigoreux or Reviere.

Until acceptance and consent of the person whose name is used, such person does not acquire property: Hannah v. Swarner, 8 Watts 11. Mutual consent is necessary to a gift, even: 2 Kent, 438.

Amy acquired no title; because, though any acceptance would be a compliance with common law rule, yet the unwritten usage relied on by respondent required him (by himself or by another) to enter and work, as the sole evidence of acceptance.

Vigoreux and Reviere did not accept, even by parol, and no presumption of their intention to accept can arise, especially when the right is acquired only by compliance with the onerous condition of entering and working.

The proof showed that they had no knowledge even, of their names being thus used, and the whole thing was without any authority from them. Neither on the principle of agency, nor of grant, can Vigoreux and Reviere be held to have acquired anything.

This case differs from that of Gore v. McBrayer, 18 Cal. 585, for Gore authorized McBrayer to locate for him; here Vigoreux and Riviere gave no authority to Dejon, and there was no proof of ratification by their adopting, or in any manner recognizing the act of Dejon before the right of these defendants attached.

H. P. BARBER, for respondent.

The right to a mining claim vests by taking, in accordance with local rules, and the custom of miners in such case is entitled to great if not controlling weight: McGarrity v. Byington, 12 Cal. 431; Brown v. Forty-nine Quartz M. Co., 15 Cal. 161.

The placing of the names of plaintiffs (or their grantors) upon the notice by Dejon, together with his own, and his entry upon and working the mine, gave all parties whose names were so placed on said notice, a vested interest as tenants in