Owing to the particular character of the averments of the petition as to jurisdictional facts and the grounds of defendants' claim, a question of law arose at the outset as to whether or not the plaintiffs should not go so far in their proofs as to maintain these allegations. But the court soon became satisfied that the question of jurisdiction had been practically eliminated by the action of Judge BREWER in striking this issue from the answer, and later on a careful reading of the answer satisfied the court that it, in effect, admitted plaintiffs' title to the surface location of the Battle Mountain and Little Chicago claim, and directly admitted the invasion of the side lines of the plaintiffs' claim. Under the issues as they really stood, the only burden the law imposed upon plaintiffs was the mere formal introduction of the patent in evidence, and proof of the quantity and value of the ore taken. As it was not to the interest of defendants to disprove the presence of valuable ore at this point, the evidence on this issue was brief, and merely as to the value. If, forsooth, the plaintiff saw fit to extend this mere formal inquiry over a wider field, it was not demanded by the pleadings or by the court.

It is manifest from the trial, the charge of the court, and this motion for new trial, that the real burden rested, and heavily, on the defendants. They held the laboring oar throughout on all vital issues in question. From them the burden of the real issue never shifted. Under such a peculiar condition of the trial, I felt that common fairness demanded that defendants' counsel should open and close the argument. This view of the real equity of the rule in question I have long entertained. I fought for it while at the bar, and shall endeavor to impartially maintain it, as one founded in justice and equality, while I remain on the bench.

My jurisdiction to pass upon this motion is called in question on the ground that I am not now acting under the order of Judge Brewer, which sent me to Colorado to hold circuit court in aid of the district judge. It was the pending litigation between these parties mainly which induced Judge Brewer to send me to Colorado, partly owing to the fact that Judge Hallett wished to be relieved from sitting

VOL. XVI-18

in the cause on account of his relation to some of the parties. The trial of the cause would have been incomplete without a final disposition of the motion for a new trial. The right to try the principal cause carries with it the incident. Had I remained at that court until the coming in of the motion for new trial, four days after the verdict, as I might well have done, no question could possibly arise as to my jurisdiction to pass upon the motion. Equally true must it be that I might have returned to Colorado after the motion was filed, and taken it up and decided it. Counsel for both parties having agreed to waive the necessity or burden of such trip to me, my right to pass upon this motion must be viewed as if I had gone to Colorado, or remained there in the first instance, to hear the motion. Unpleasant as it is to act under even the imputation of assuming authority, I feel constrained to proceed in this matter under an imperative sense of official duty. As the consideration of this motion involves not only a review of the questions of law in the case, but the complicated issues of fact, as well as the official and personal conduct of the trial judge, it at once becomes apparent that there is almost a necessity that he should pass upon this motion, as also the bill of exceptions, if any, to be presented in the case.

Respecting what has been brought into the discussion on this motion touching indications of partiality at the trial, I may be indulged simply to say that both litigants and counsel on either side were entire strangers to me when the trial begun, and my acquaintanceship with them was limited to the court-room. If collisions between court and counsel occurred, it was doubtless attributable to mutual misconception. Two temperaments much alike, each impelled by a spirit of self-assertion, now and then produce antagonisms more apparent than real. I am satisfied that counsel did his duty, and did it well, on this trial; and no language could express my sense of regret if I felt there was any occasion for the thought that the scales of justice were unevenly held by the court. The court tried the case as best it could; and, if it erred to plaintiffs' prejudice, it will bring no regret to the court personally to see the wrong righted by an appeal to a higher court, or upon a subsequent trial, should the plaint

iffs see fit to resort to either. The remedy being left to plaintiffs either to appeal or bring another action within a year, under the provisions of the Colorado statute, I feel the less hesitancy in following my judgment in denying the motion for a new trial.

1. Breaking barrier no trespass, nor is (in instances) flow of water through the hole. National Cop. Co. v. Minnesota Co., 57 Mich. 83; 58 Amer. R. 333.

2. Parties in rightful possession of surface, held in trespass for taking coal Ashman v. Wigton, 12 AtL 74.

BENNETT V. SHAUGHNESSY.

(22 Pacific Reporter, 156. Supreme Court of Utah, 1889.)

Failure to pay as the work progresses. When a party contracts to drive a tunnel and to receive his pay in agreed installments as the work progresses, on default of payment of any installment he may quit work and sue for the part completed. He is not bound to continue after the default.

Payments in this class of contracts are conditions precedent, it being assumed that the contractor needs each installment to pay his outlays as he goes.

Appeal from District Court, First District.

SHEEKS & RAWLINS, for appellant.

GEORGE SUTHERLAND and J. G. SUTHERLAND, for respond

ents.

ANDERSON, J.

On the 13th day of October, 1883, plaintiff and the defendant, Michael Shaughnessy and John A. Hunter (since deceased), entered into a contract whereby plaintiff agreed to excavate a tunnel 1,200 feet in length along the vein of certain mining properties of the defendants, and to run cross-cuts across the vein from wall to wall at intervals of 100 feet, and to properly timber and complete the same, according to the specifications, by the 1st day of December, 1885. By the terms of the contract, plaintiff was to be paid $12 per linear foot for the tunnel and $6 per foot for the cross-cuts. The contract further provided that "the party of the second part (Shaughnessy and Hunter) hereby agree to receive said tunnel one hundred feet at a time, and pay said first party ten dollars per foot therefor, or one thousand dollars upon the completion of each one hundred feet, and the balance of said contract price (two dollars per foot) shall be paid by said second party at the completion of said tunnel contract, and not till then, and further to

pay five dollars per foot for running said cross-cuts at the time of completing each, and at the same time of paying for one hundred feet of tunnel so completed, and the balance of the contract price of running such cross-cuts, to wit: one dollar per linear foot, at the completion of this contract." Between October 10, 1883, and October 5, 1884, plaintiff, in pursuance of the terms of the contract, constructed and excavated 290 and 2-12 feet of tunnel and 11 feet of cross-cutting. March 25, 1884, plaintiff was paid $1,000 for the first 100 feet completed by him on the tunnel.

Prior to October 5, 1884, plaintiff, having completed and excavated the second 100 feet of said tunnel and its crosscuts therein, as provided by the contract, so notified the defendants, and demanded of them repeatedly the payment of the second $1,000, which sum not being paid, nor any part thereof, plaintiff on said day discontinued and abandoned the prosecution of the work under said contract, and brought this action to recover for the work already done and for certain materials furnished by him while engaged in the work under the contract, and prayed that the same be made a lien on the mining properties, for the improvement of which the tunnel was begun.

After the case was commenced, John A. Hunter, one of the defendants, died, and Mary Hunter, administratrix of his estate, was substituted in his stead, as one of the defendants. The case was tried by the court by consent of parties without a jury, and a judgment was rendered in favor of the plaintiff and made a lien on the property of the defendants, and the defendants now prosecute this appeal.

The only question presented by the appeal for our consideration is whether the plaintiff could rescind and abandon the contract, and recover the amount due for the work already done, upon the failure of the defendants to pay for the second 100 feet of tunnel, upon the completion thereof, and demand for such payment.

Counsel for defendants contend that the failure on their part to make a partial payment at the time stipulated, did not excuse the plaintiff from performing the contract on his