Battersby v. Abbott.

settled, among the clerk's papers. I then drew up a counterstatement, differing in many important facts from the present one, but could not get a hearing on it. I suppose the refusal was based upon the doctrine of stare decisis. The only evidence this Court has that such notice was not given is, that the record is silent upon the subject. The record should show, affirmatively, that the notice was given. It should contain the notice itself, or a copy thereof, or an affidavit that one had been served; or, at least, the Judge's certificate of settlement should recite that it was done, upon "notice to the adverse party," or, "that both parties. appeared," etc. Now this rule holds good in relation to the judgment itself, and why should it not in relation to an ex parte statement, on the strength of which the judgment is sought to be overturned? The record of a judgment, or a certified transcript thereof, in a foreign Court, amounts to nothing unless it also show, affirmatively, that the defendant had notice, or was present in person, or by attorney. Hence, our Practice Act, following the analogies of settled law, provides, section two hundred and three, that the clerk, in making up the judgment-roll, shall attach together the pleadings, judgment, and summons; and, where there is no answer made, then "the summons, with the affidavit or proof of service."

It seems just and consistent, then, that if a judgment must carry with it affirmative proof that the judgment-debtor had due notice, most certainly a statement, on which the judgment is sought to be reversed, should contain the same evidence, particularly when the statute requires notice.

2. The statement should be discarded, because the certificate of the Judge is insufficient and defective. It contains no evidence that the Judge settles the statement as required by statute. It simply says, "I hereby certify that the foregoing statement is substantially correct." This is the certificate. The word "substantially" may mean, in Judge Barbour's sense, one thing, and in the view of this Court it may mean quite a different thing. It is a vague and uncertain term, and should not be received as descriptive of the correctness of a statement on appeal.

A prominent feature in all law proceedings, I mean in the drawing of legal documents, is certainty. And it is frequently the case, that the wording of a single sentence, or even the change in a single word in the sentence, exercises a decisive influence on the termination of the cause pending. How, then, can this Court determine that this statement is complete and full, so far as the respondent is concerned, when the Judge does not settle the statement, but simply says it is substantially correct? If the statement simply averred or recited that "this was an ejectment-suit; that each party produced several witnesses; that the cause was argued; and that a verdict was rendered for

Packer v. Heaton.

the defendant," this would be substantially correct. It would recite the prominent facts of the case, but it would not develop the particulars of the trial, the different shades of the evidence, the objections and exceptions taken; nor would it show, at all, the legal points to be considered by the Appellate Court, yet it would be substantially correct.

TERRY, C. J., delivered the opinion of the Court-FIELD, J., and BURNETT, J., concurring.

The objections to the statement in this case are not well taken. The Judge certifies that the statement is substantially correct. This is entirely sufficient. It is not necessary that the testimony should be stated in the precise words of each witness; the substance of the testimony is all that is required to be set out in the statement.

It is no objection to the statement that it does not affirmatively show that the settlement was upon proper notice, or in the presence of both parties. In the absence of evidence to the contrary, the presumption of law is in favor of the regularity of all official acts.

From the statement, as settled, it appears that the Judge instructed the jury "to find for the defendant, as the plaintiff had failed to prove a redemption."

This instruction was clearly erroneous. The question of redemption was the main point in issue between the parties. It was a question of fact for the jury, and as the evidence was conflicting, the instruction amounted to a charge on the weight of evidence.

Judgment reversed, and cause remanded.

PACKER et al. v. HEATON et al.

Where the regulations of a mining locality require that every claim shall be worked two days in every ten Held, that the efforts of the owners of a claim to procure machinery for working the claim, are, by fair intendment, to be considered as work done on the claim.

So, also, is working on adjoining land in constructing a drain to enable the owners to work the claim.

In an action by a company of miners to recover possession of a mining-claim, and damages for its detention, a person who was a member of the company at the time of the alleged detention, and who, prior to the commencement of the suit, in consideration of unpaid assessments, sold his interest to his copartners in the claim, without warranty, is not a competent witness, as he is interested in the damages sought to be recovered. The mistake of counsel as to the competency of a witness, is no ground for granting a new trial.

APPEAL from the District Court of the Fourteenth Judicial District, County of Sierra.

Packer v. Heaton.

A statement of the facts appears in the opinion of the Court.

Dunn, Smith & Galloway, for Appellants.

McConnell & Niles for Respondents.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring.

This was an action to recover the possession of a mining-claim, and damages for the detention thereof. The defendants had judgment in the Court below, and the plaintiffs appealed.

The main question in this case has relation to what constitutes a forfeiture, or abandonment, of a claim, under the regulations of that particular locality. It appears that in October, 1854, certain rules and regulations were adopted at a meeting of the miners at that point, the fifth of which is as follows:

"All claimants or companies shall work, or cause to be worked, his or their claims at least two days in every ten, from the first day of May to the first day of November."

It appears that the ground in dispute was located by defendants in August, 1854, and a large amount of work done during that year, in the sinking of shafts, to reach the deposits below. But from the great depth of the diggings, and the inflow of water into the shafts, it was found impossible to work the mine successfully without the aid of machinery propelled by steam. The last work upon the premises, by defendants, was done about the fourth of July, 1855. On the thirteenth of August, 1855, the plaintiffs located the claim. But between the fourth of July and the twentieth of August, when the defendants recommenced work upon the ground in dispute, they were engaged in efforts to procure the machinery necessary to prosecute their labors. At the request of the plaintiffs, the Court instructed the jury, that, though the defendants were first to locate the claim, yet, if they subsequently abandoned it, and the same was located by the plaintiffs while it was so abandoned, and the plaintiffs had complied with all the rules, regulations, and customs of the locality, up to the time of bringing the suit, then the plaintiffs were entitled to recover. The Court refused to instruct the jury, at the request of plaintiffs, that the unsuccessful efforts of defendants to procure machinery could not avail them as an excuse for not working upon the claim, as required by the rules; but, at the request of defendants' counsel, instructed them, that if the defendants were the prior possessors of the claim, and, at the time the plaintiffs located the same, were engaged in efforts to procure the necessary machinery, and did procure the same within a reasonable time, then the defendants were entitled to hold the claim against the plaintiffs.

The question as to the validity of this mining rule does not

Packer v. Heaton.

necessarily arise in this case, and we therefore express no opinion in relation to it. The instruction given by the Court, at the request of the defendants, though not within the strict letter of the rule, is yet within its true spirit and intent. The efforts to procure the machinery, with the bona fide intent to work the claim, may be justly considered as work done upon the claim, by relation and intendment. It seems that the plaintiffs were placed, substantially, in the same position with respect to this point. They had done no work within the actual limits of the claim, but had worked upon adjoining ground, in constructing a drain. The Court very properly instructed the jury that this work was done upon the claim, within the true meaning of the rule. The rule did not require either party to do a vain and idle thing. The owners of claims are not required to waste their labor in doing that which can lead to no practical result. It seems that one company expended their labor in procuring machinery, while the other was engaged in constructing a drain; that the work, in both cases, was not done upon the claim, strictly speaking; but that the end intended to be accomplished was the same, and the reasonable result the same in both cases. Both parties intended to drain the claim; and the only difference was, they used different means to attain the same end.

The Court, at the request of the defendants, instructed the jury, that if the defendants were in the possession of the miningground in dispute, prior to the location of plaintiffs, and had not disposed of or abandoned the same, then they must find for the defendants.

The counsel for the plaintiffs insist that this instruction was erroneous, as it excluded the idea that the defendants could have forfeited their right to the claim.

It is unnecessary to inquire and decide whether the owner of a mining-claim can forfeit the same by a failure to work upon it within ten days, as required by the rule. There was no error in giving this instruction under the circumstances. The plaintiffs, in the first and second instructions asked by them, said nothing as to a forfeiture of defendants' right, but confined their instructions to the case of abandonment. It is true, that in the fifth, sixth, and seventh, they referred to the specific facts, as not constituting an excuse for the failure to work within the time limited. These latter instructions were properly refused, and the plaintiffs had not relied upon any other acts alleged to constitute a forfeiture. The result was, that the plaintiffs rested the case upon the ground of abandonment, and also upon certain facts not constituting a forfeiture. There was nothing in the facts proven tending to show a forfeiture. The giving of this instruction could do the plaintiffs no harm. The objection to the seventh instruction, given at the request of defendants, was not well taken, as the instruction was in substance the same as the

People v. Harris.

one just noticed. The ninth and twelfth instructions offered by defendants were not given by the Court, as appears from the record. The letter of Kibbe is not contained in the record, and we can not judge whether its admission was error or not. The mere fact that the letter was admitted, does not show error.

We think the testimony of Ballinger was properly excluded. He was a member of the plaintiffs' company during a part of the time transpiring between the date of their location, on the thirteenth of August, 1855, and the commencement of this suit, June 10, 1857. His bill of sale to the other members of the company, left him interested in the damages sought to be recovered.

The Court properly overruled the motion for a new trial. The verdict was not contrary to the testimony. There was no surprise on the part of plaintiffs that fair diligence could not have avoided. The mistake of counsel, as to the competency of Ballinger, was no cause for granting the motion. The objection to his competency could have been readily removed.

Upon the whole, we think that substantial justice was done, and the judgment of the Court below must be affirmed.

THE PEOPLE ex rel. HAMILTON v. HARRIS.

It is the duty of a justice of the peace, when an appeal-bond is presented to him for his approval, to act promptly. If he receives the bond without objection, it will be too late to disapprove it the next day.

An offer to pay the justice his costs, on appeal, so soon as the appeal-papers are ready to transmit to the County Court, is not a sufficient tender, under the statute. The fees must be tendered unconditionally.

The justice is not bound first to make out the papers, and then rely on his fees being afterwards paid.

Where an alternative mandamus was issued to a justice of the peace to compel him to send up papers on appeal to the County Court, to which he answered that his fees had not been paid or tendered "prior to the service of the alternate writ:" Held, his answer is no defence to the writ being made peremptory, as the fees may have been paid since the service of the writ.

APPEAL from the County Court of San Francisco County.

The facts appear in the opinion of the Court.

A. T. Willson for Appellant.

J. A. McDougall for Respondent.

BURNETT, J., delivered the opinion of the Court-TERRY, C. J., and FIELD, J., concurring.

Mandamus from the County Court to compel the defendant, a