Opinion of Beatty, J., concurring.

disposed of by act of congress prior to the passage of the enabling act. But fortunately this question admits of an easy answer. By the act of February 26, 1859 (Rev. Stat., sec. 2275), it is provided that "where settlements with a view to pre-emption have been made before the survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the pre-emption claim of such settler, and if they or either of them have been or shall be reserved or pledged for the use of schools or colleges in the state or territory in which the lands lie, other lands of like quantity are appropriated in lieu of such as may be patented by pre-emptors," etc. The only question of construction affecting this case, which can arise upon the language of this act of congress is as to whether it applies to future settlements with a view to pre-emption, or only to those which had been made prior to its enactment. It seems, however, to be evident from the context that the intention of congress was to protect future settlers as well as those who had theretofore settled upon the reserved lands. As it is admitted that the appellant in this case had brought himself fully within the terms of the law, the only remaining question is whether the law is still operative in this state. Respondent contends that it was repealed by implication upon the passage of the enabling act, and the learned judge of the district court so decided in an able and elaborate written opinion which accompanies the record filed in this court. In this particular, however, I think the learned judge. fell into an error. Repeals by implication are not favored, and are never held to have taken place where the two acts can stand together.

In this case I think there is no difficulty in so construing the act of February, 1859, and the enabling act, as to give to each its full force without impairing the force of the other. The grant in the enabling act expressly excepts lands previously disposed of by act of Congress, and appropriates other lands in lieu thereof. The act of 1859 was a prior disposition of all lands of the class described in the grant that might be settled upon before survey. There was,

Opinion of Beatty, J., concurring.

it is true, no absolute disposition of any particular section, but there was a contingent disposition of every section. The disposition was prior, notwithstanding it depended in particular instances upon a contingency which might happen subsequent to the grant.

The case of Higgins v. Houghton (25 Cal. 260), which is relied upon by the district judge as sustaining his conclusion that the effect of the passage of the enabling act was to withdraw the sixteenth and thirty-sixth sections from the operation of the pre-emption laws, is not in point for the reason that the grant to California was made prior to the passage of the act of February, 1859, while the grant to this state was made subsequently thereto; and the very object of that act was to protect pre-emption settlers, before survey, from the operation of grants to the states and territories of the public lands.

For these reasons I concur in the judgment and order of the court.

INDEX.

ABANDONMENT.

1. SECOND LOCATION OF MINING GROUND WHEN NOT AN ABANDONMENT OF THE
FIRST. Where one or more of the parties first locating mining ground
afterwards made a second location upon the same lode, with the names
of other parties added to the notice of location, it appearing that at the
time of the second location the ground was undeveloped, and it was not
known that both notices were upon the same lode, and it further appear-
ing that the second notice was posted for the express purpose of pro-
tecting the original location: Held, that the second location did not of
itself constitute an abandonment of the first location. Weill v. Lucerne
M. Co., 201.

2. IDEM.-The question of abandonment is one of intention. Whether it
was the intention of the Jocators in the first notice to abandon their in-
terest in' the ground derived from said first notice of location, was a
question of fact for the jury to determine from all the facts and circum-
stances of the case. Id.

ABANDONMENT OF HOMESTEAD. (See Homestead, 6.) 260.

ACCOUNT.

OBJECTIONS TO BOOKS OF ACCOUNT. (See Books of Account, 1.) 249.

ACKNOWLEDGMENT.

CERTIFICATE OF VICE-CONSUL. (See Evidence, 4.) 194.

AFFIDAVIT.

REMOVAL OF CAUSES TO FEDERAL COURT BY A FOREIGN CORPORATION. (See
Removal of Causes, 1-5.) 350.

AGENCY.

AGENCY, WHEN IT MUST BE DENIED. (See Pleadings, 5.) 277.

( 459 )

AMENDMENTS.

AMENDMENT OF RECORDS AFTER ADJOURNMENT OF TERM.-After the term of
court expires, the records cannot be amended, unless there is something
in the record to amend by. Clark v. Strouse, 76.

APPEAL.

1. SERVICE OF NOTICE OF APPEAL.-Where a copy of the notice of appeal
was served on the attorneys for defendant at a certain time and place
by "exhibiting to them personally the said copy and by leaving the
same in a conspicuous place in their office :" Held, a substantial com-
pliance with the statute. Clark v. Strouse, 76.

2. WHEN APPEAL WILL BE DISMISSED.-When the appellant fails to furnish
this court with 66
a notice of appeal" and "undertaking on appeal," as
required by the statute, the appeal will be dismissed. Gaudette v. Glis-
san, 184.

APPELLATE JURISDICTION IN CASES OF CONTEMPT. (See Contempt, 3.) 187.
STATEMENT ON MOTION FOR NEW TRIAL CANNOT BE CERTIFIED TO BY THE
DISTRICT JUDGE AFTER APPEAL IS TAKEN. (See Statement, 2.) 280.

ASSAULT.

EXAMINATION OF DEFENDANT AS TO PREVIOUS ASSAULTS. (See Criminal Law,
4.) 17.

ASSAULT WITH INTENT TO KILL. (See Criminal Law, 24.) 416.

ASSAULT WITH INTENT TO COMMIT RAPE. (See Rape.) 255.

ASSESSOR.

INSOLVENCY OF ASSESSOR WILL NOT AUTHORIZE ISSUANCE OF INJUNCTION TO
RESTRAIN COLLECTION OF TAX. (See Taxes, 3.) 161.

BILL OF EXCEPTIONS.

1. BILL OF EXCEPTIONS--HOW AUTHENTICATED.--A bill of exceptions must
be authenticated by the signature of the judge. State v. Huff, 17.
2. IDEM--SETTLEMENT OF, ON MOTION FOR NEW TRIAL.--The bill of excep-
tions or statement may be settled by the judge after the motion for a
new trial is decided. Id.

3. BILI. OF EXCEPTIONS--REVIEW OF EVIDENCE.-There is no provision of
the statute that will authorize this court to review or examine the evi-
dence in a criminal case, unless it is embodied in a bill of exceptions.
State v. Larkin, 314.

4. IDEM--REPORTERS' NOTES.--The reporters' notes of the proceedings of a
trial can only be considered when adopted by the court as correct, and
included in a bill of exceptions, settled and signed by the judge. Id.

BILLS AND NOTES.

DEFENSE TO A PROMISSORY NOTE.--It is a good defense to an action on a
promissory note to show that the consideration for which it was given
was money won by gambling. Evans v. Cook, 69.

BOOKS OF ACCOUNT.

1. OBJECTIONS TO BOOKS OF ACCOUNT-WHEN NEW TRIAL SHOULD BE GRANTED.
-Where the only objection made to the books of account, when offered
in evidence, was that the defendant could not testify as to the entries in
his books after the death of the party charged, and where the court, in
deciding the case, held that said books were improperly kept, and ex-
cluded the entries in the books as evidence: Held, that inasmuch as
the objection made was untenable, and the defendant never had any
notice until after his motion for a new trial had been overruled, that the
evidence he had relied upon had been rejected for any other reason than
because it was deemed incompetent, a new trial should be granted.
Jones, Adm. of Estate of Jessup, v. Gammans, 249.

2. IDEM. The case must stand or fall upon the correctness or incorrectness
of the ruling as it was originally made and announced, and as the book
was before the court sitting as a jury, it was error in the court to treat
it as not evidence. Id.

BOUNDARIES.

NATURAL BOUNDARIES OF LAND DEFINED. (See Possession, 4, 6.) 171.

BURDEN OF PROOF.

(See Counter-Claim 1, 96; Embezzlement, 5, 287; Fraud, 1, 268.)

BURGLARY.

1. BURGLARY-SECTION 2365 OF COMPILED LAWS CONSTRUED- SUFFICIENCY
OF INDICTMENT.-The necessary construction of section 2365 of the Com-
piled Laws defining burglary, is that there is but one species of burglary,
the essential definition of which is the entering in the night-time any
dwelling-house, tent, etc., with intent to commit petty larceny, or any
felony. An indictment showing these facts by proper averments would
authorize a conviction of burglary, no matter how the entry was effected.
State v. Watkins, 30.

2. CORPUS DELICTI-PROOF OF, HOW ESTABLISHED.-Proof that defendant had
in his possession, outside of the house, between twelve and one o'clock,
goods which were in the house at nine o'clock, and which could only
have been obtained by entering the house, was proof of an entry in the
night-time, and, taken in connection with the other proof, completely
established the corpus delicti. Id.