1. The location notice of the Crucible lode states, among other things: "This lode is situated in Vaughn's unorganized mining district, Lewis and Clarke County, Montana Territory, and the discovery shaft is 335 feet from the west end of the claim. * * * The exterior boundaries of this location are distinctly marked by posts or monuments at each corner of the claim, so that its boundaries can be readily traced, viz.: Beginning at the N. E. corner, from which corner No. 4, survey No. 889, bears northerly about one mile; thence westerly 1,500 feet to post marked 'N. W. corner Crucible;' thence southerly 600 feet to post marked 'S. W. cor. Crucible;' thence 1,500 feet to post marked 'S. E. cor. Crucible;' thence northerly 600 feet to post marked 'N. E. cor. Crucible,' and place of beginning." As to this description the defendants plead, in their answer: "That the corner No. 4 of said survey No. 889, referred to in the said Crucible notice of location as being about a mile distant therefrom, lies wholly within the said County of Jefferson, is a fixed, definite, and permanent monument, and, taking the said notice of location, and starting at the initial point named, from the calls of said notice, one would of necessity, and without uncertainty, find the said claim in the County of Jefferson." It further appears from the answer that the notice of location was duly filed in the office of the county recorder of Jefferson County, and not of Lewis and Clarke. The court held that this location notice was not competent, as not entitled to record in Jefferson County, by reason of the statement in the notice that the claim was situated in Lewis and Clarke County; and also that the allegation and proposed proof that said corner No. 4 shows the claim to be in Jefferson County was incompetent. This is assigned as error. 2. The location notice of the New Brunswick shows these facts: The notice itself is signed by the locators. Then appears an unsigned affidavit, as follows: "Territory of Montana, County of Lewis and Clarke, ss. Charles K. Cole, being duly sworn, says that he is of lawful age, and one of the locators and claimants of the foregoing quartz lode mining claim; that said location is made in good faith; and that the matters set forth in the foregoing notice by him subscribed are true.- Said Charles K. Cole was one of the locators, as appears upon the notice. The notice was recorded in Jefferson County. It further appears by averment of the answer "that said Charles K. Cole, the person named as affiant in the affidavit attached to said notice of location, in truth and in fact swore to the same before a notary public (Edgerton) therein named, prior to the record thereof, and subsequent to January 2, 1885." The District Court held that this notice, not being sworn to, was not entitled to record, and defendants could not claim title thereunder. This conclusion must have been reached by taking the face of the affidavit alone, and disregarding the aliunde matter pleaded in the answer. This is assigned as error. 3. The New Brunswick was located January 2, 1885, and recorded February 5, 1885. The record was more than twenty days after the location. But it appears "that between January 2, 1885, and February 5, 1885, no person whomsoever occupied, possessed, or endeavored to assume to occupy or possess the claim or any part or portion of the said New Brunswick lode, other than the said locators above named." Was the record, under these circumstances, made in time? 4. The Ida May location notice states: "This lode is situated in unorganized mining district, Jefferson County, Montana Territory, and the claim is situated about one mile southeasterly of the Peerless Jennie mine. The joining claims are the Corbett quartz claim on the east; no others known." The Corbett location notice states: "This lode is situated in Frowner's unorganized mining district, Jefferson County, Territory of Montana; and the adjoining claim is the Leslie on the north." The point is made that these descriptions are not "by reference to some natural object or permanent monument as will identify the claim." Rev. St. U. S., § 2324. An opinion upon these two last points is not required for a decision of the case; but they will be treated, for the reason set forth in the opinion below. TOOLE & WALLACE, for appellants. COMLY & FOOTE, and SHOBER & Rowe, for respondents. DE WITT, J. (after stating the facts as above). We will discuss the points in the order outlined in the foregoing statement of the case. 1. The Crucible claim was situated in Jefferson County. Its notice of location was recorded in Jefferson County. Its location description names corner No. 4 of the survey No. 889, which corner defendant alleges lies wholly within Jefferson County; and further alleges that the described courses and distances, when run by reference to this survey corner No. 4, locate the claim wholly in Jefferson County. It is not for the court to say, from an inspection of the location notice, whether or not this survey corner was a permanent monument. This is a matter for proof: Russell v. Chumasero, 4 Mont. 317; 1 Pac. 713; O'Donnell v. Glenn, 8 Mont. 248; 19 Pac. 302. Then, if defendants had been allowed to attempt to prove this, as they had the right to do, and had succeeded, they would have been in this position: they would have shown where their claim was by reference to a permanent monument; they would have shown thereby that it was in Jefferson County, the county in which they had properly made their record. Are they to lose their claim because they stated in their notice that the premises were in Lewis and Clarke County? The statement of the county, in the notice, is not required by law; nor does it appear that it was required by any rules of miners consistent with the laws of the United States or the then territory; nor is it necessary in this case, in order to find or identify the claim. It was surplusage. Does this surplusage vitiate an otherwise good description, and a legal recording? Falsa demonstratio non nocet. See cases in 2 Pars. Cont. (5th Ed.) 555, note d, and page 514. The rule applies the more forcibly in a case, as that before us, where the false description is surplusage. "So much of the description as is false is rejected, and the instrument will take effect, if a sufficient description remains to ascertain its application." 1 Greenl. Ev. § 301, and cases cited; also Wade, Notice, §§ 184, 185; Partridge v. Smith, 2 Biss. 183; Worthington v. Hylyer, 4 Mass. 195; Jackson v. Loomis, 18 Johns. 31; Reamer v. Nesmith, 34 Cal. 624. There can be no doubt that, if defendants be successful in proving what they allege to be the fact as to a permanent monument, the description is sufficient, and the error in stating the county, under the circumstances of this case, is harmless. satisfied that the District Court erred. The notice of location is competent, and proof whether the corner No. 4 of survey No. 889 be a permanent monument is competent. Upon the subject of description of mining claims, see Gamer v. Glenn, 8 Mont. 371, 20 Pac. 654; Flavin v. Mattingly, 8 Mont. 246, 19 Pac. 384; Upton v. Larkin, 7 Mont. 449, 17 Pac. 728; Garfield M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153. The foregoing is sufficient for the decision of this appeal, but, as the case goes back for further proceedings, we will express our views upon the additional points raised as a guide to the District Court in the further consideration of the case; and, therefore 2. The next point is whether the location notice of the New Brunswick claim is defective, by reason of the condition of the verification. This court, after incidentally doubting the validity of the law of the territory requiring a location notice to be verified (Wenner v. McNulty, 7 Mont. 30, 14 Pac. 643; afterward in O'Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302), met the proposition squarely, and held the law to be good. While we can conceive doubts as to this power of the territorial legislature, we do not feel it our duty to disturb the rule in O'Donnell v. Glenn, and the practice established upon that rule. We therefore sustain the law, which is as follows: "Any person or persons who shall hereafter discover any mining claim upon any vein or lode shall within twenty days thereafter make and file for record in the office of the recorder of the county in which said discovery or location is made, a declaratory statement thereof, in writing, on oath, made before some person authorized by law to administer oaths, describing such claim in the manner provided by the laws of the United States." Section 1477, p. 1054, Comp. St. The question, then, arises, is the location notice of the New Brunswick, with its attachment, "a declaratory statement in writing, on oath?" It is "a declaratory statement in writing;" and, if it is properly "on oath," the verification * * * by Cole, one of the locators, is sufficient, without his colocators joining with him: Wenner v. McNulty, supra. An affidavit is one method of taking an oath. An affidavit is "a statement or declaration reduced to writing, and sworn or affirmed to before some officer who has authority to administer an oath :" Bouv. Law Dict. Appellant cites Shelton v. Berry, 19 Tex. 154, 70 Amer. Dec. 326; Jackson v. Virgil, 3 Johns. 540; Millius v. Shafer, 3 Denio, 60; Ede v. Johnson, 15 Cal. 57; Burns v. Doyle, 28 Wis. 460; and Crist v. Parks, 19 Tex. 234-to the effect that the affidavit need not be signed. But the want of signature to this paper is not its most serious defect, if it be attempted to view it as an affidavit. There is no jurat thereto. It does not appear by the hand of the notary that the paper was either subscribed or sworn to, or that the party was ever present before the officer. We are not cited to any authority, or given any reason, that would warrant us in holding this paper to be an affidavit. In all the cases presented by appellants (last supra) there appeared some sort of authorization or certification from the notary, which evidenced the oath having been taken. In the paper before us there is nothing but the notary's name and official title. It does not appear that the party took an oath, or was ever present before the officer. We can not call this an affidavit, or an oath by virtue of an affidavit, or by virtue of any certification. But appellants urge that an affidavit is not required, but only a statement on oath. Granted for the argument's sake; but have we any statement on oath? We have no notarial evidence of such fact. If the notary had officially certified, attested or declared in any manner that the locator made the statement on oath, we would be inclined to view the matter more favorably. Certainly there is nothing whatever on the paper to remotely indicate that Charles K. Cole, the locator, made the statement on oath. In Murray v. Larabie, 8 Mont. 212, 19 Pac. Rep. 574, there appeared at the end of a deposition an alleged certificate. It was signed by the deponent, and then followed: "Sworn to and subscribed before me, this eighteenth day of February, 1885. OMERE VILLERE, Not. Pub. [Notarial Seal.]" The court held" the simple statement at the end of the deposition, of 'sworn to and subscribed |