BOND. Continued. ments being made. Held, that the bond was without consideration and therefore without validity. Smith v. Reynolds, 2, 227 3. Want of certainty cured by verdict in suit on bond. Gear v. Shaw, BOUNDARIES. 7, 643 1. Boundaries must be marked and can not be changed.—Before the passage of the U. S. acts now in force, the staking of the boundaries of lode claims was not customary, but under those acts it is essential; and when the boundaries are so defined, they can not be changed to the injury of any intervening locator. Golden Fleece Co. v. Cable Co., 1, 120 2. Chancery may entertain a bill to settle boundaries between coal mines, after a recovery in ejectment, but will not order an account in such case in favor of the party out of possession. Sayer v. Pierce, 1, 72 2, 266 3. Boundaries controlled by plat. Lampe v. Kennedy, 4. Fence called for, not necessarily a line fence.-The deed under which defendants claim requires the south line of their lot (the line here in dispute) to be so run as to leave standing a certain fence on plaintiff's lot. Held, that this does not purport to make such fence the south boundary of defendant's land; and that G. had no authority to change, by his deed, the boundaries fixed by the plat. Id. 5. Negligence in ascertaining boundary.---Defendants who have the means of ascertaining the exact boundaries of their mining claim, and who work across such boundaries in ignorance of their location, are guilty of negligence. Maye v. Yappen, 10, 101 6. Proof of corporate knowledge of boundaries. McMillan, Franklin Co. v. 10, 224 7. Surveyor's notes of processioners--Evidence excluded.—The testimony of a witness taken down by a surveyor while making a survey and returned in his book of explanation, was not allowed to be read in evidence, though the witness was shown to be seventy-five years of age and in feeble health. Id. 8. A traditional survey, agreed at one time to have been made, and supposed to have been at that time made, but never satisfactorily proved and a subject of continued contention, can not be treated by courts as binding upon the parties, although they have attempted to fix it by subsequent survey. Blewett v. Coleman, 11, 130 9. Infant consenting to boundaries.--If consentable lines are fairly made between adjoining tracts by a guardian on behalf of an infant and an adult, the latter, or those claiming under him, can not object on the ground of the infancy; and it seems that if the infant does not dissent when he becomes of age, but acquiesces, he is forever bound, Brown v. Caldwell, 12, 674 10. Lode claim 1,763 feet long held void.—Boundaries of mining claims must be definite and readily traced, and within the limit autheized by law; boundaries beyond the maximum limit import no notice, and are equivalent to no boundaries at all. Leggatt v. Stewart, 15, 358 BOUNDARIES. Continued. 11. Courses and distances, under the authorities, are assigned the lowest place in the scale of evidence, as being the least reliable. And it is not necessary that the monuments to control be unquestionable. Cullacott v. Cash Co., 15,392 12. Monuments control course and distance-Variance in the calls.— The courses and distances of a survey must yield to its monuments, whether natural or artificial. While a stump, hewed and marked, might be adopted as a location post, the descriptive survey should give both its real and assigned character. When the call in a location certificate is for a post, parol testimony is inadmissible to show that while a post is called for, a stump was in fact established as a corner. Pollard v. Shively, 13. Keeping up monuments-When necessary. Id. 2, 229 14. Fixed objects control.—Where boundaries are given with reference to fixed and known objects, they control courses and distances. Kamphouse v. Gaffner, 2,257 15. Parol evidence to explain ambiguities-Monuments.-The general rule that parol evidence can not be admitted to contradict or control the language of a deed, but the latent ambiguities may be explained by such evidence, held, applicable to a location certificate. The rule is that where monuments are relied upon to control courses and distances, they must be found as called for. Pollard v. Shively, 2, 229 16. Mistake-Estoppel-Subsequent purchasers.-A disputed boundary line between the claims of two mining companies was finally fixed by mutual consent, and the property passed to subsequent purchasers; it was then discovered that the settlement was based upon a mutual mistake as to the true course of the line, but the purchases had been made with a view to the compromise line. Held, that the parties were estopped from disputing the correctness of the compromise line. Where one of two innocent parties must suffer, he who committed the mistake must bear the loss. McGee v. Stone, 2,238 17. Fixing bounds by proof of neighboring lines. Stoakes v. Mon2,246 roe, 18. Evidence.-Where premises occupied by certain persons are referred to in a lease as a boundary of the premises leased, it is proper to admit evidence showing the location of premises so referred to, for the purpose of explaining the circumstances under which the lease was made, or of applying it to its proper subject-matter, or of raising and explaining a latent ambiguity. Kamphouse v. Gaffner, 2, 257 19. Side line posts.-Posts placed opposite the discovery shaft, 600 feet from one end and 900 feet from the other end of the claim, is a substantial compliance with the requirement of the statute that the side posts be placed in the center of the claim--as with the corner posts properly located the boundaries of the claim, with side posts so placed, can be "readily traced" by them. Pollard v. Shively, 2,299 20. Corporation not bound to line assented to by its superintendOverman Co. v. American Co., 2,251 ent. 21. Loundaries must be marked.-It is an imperative requirement of the law, and indispensable to a valid location, that it shall be "distinctly marked on the ground, so that its boundaries can be readily traced." Gleeson v. Martin White M. Co., 9, 429 22. Setting stakes at the four corners is a sufficient marking. Id. 23. Exactness in setting stakes is not required of the locator.—The difference of a few feet between the location stakes and the stakes set on survey for patent, is immaterial. Eilers v. Boatman, 15, 462 24. Description—Ambiguity.-A contract to convey land, bounded on the south by a line ten paces north of certain quarries, the face of the quarries being irregular, but having a general east and west course, held, to mean a straight line from a point ten paces north of the east, to a point ten paces north of the west, extremity of the quarries. Huffman v. Hummer, 2. 242 25. Boundary along a meandering stream. Quicksilver Co. v. Hicks, 11, 98 BRICK. 1. Brick kiln not included in deed.-Movables, such as brick in a kiln, do not pass in a deed of conveyance unless specially mentioned. East v. Ealer, 2, 274 2. Brick contract – Title in owner of clay—Dealing with the maker. -One Ultzman made brick on the land of plaintiff under contract by which no title to the brick was to pass until plaintiff was paid for his clay and his wood used in the manufacture. Ultzman sold a lot of these bricks to defendant, who supposed he was buying Ultzman's property, and in payment he applied a set-off which he had against Ultzman. Held, 1. That the contract was not within the statute of frauds. 2. That the apprehension of the defendant that he was buying from Ultzman, not having been induced by Ultzman, did not prevent recovery in the name of the real owner. Brown v. Morris, 3, 177 3. Variance in number.-Where the complaint avers delivery of 41,000 brick, and the proof shows delivery and acceptance of 41,228 brick, it is an immaterial variance and the verdict will stand for compensation for the full number. Id. BROKER. 1. Measure of damages against principal refusing to pay broker the price of stock bought for plaintiff on his order. Giddings v. Sears, 2, 281 2. Bound by first charge.--An agent for selling coal lands presented bill for $1,000 services. Judgment for larger sum set aside on the ground that the bill fixed the value. Daniels v. Wilbur, 2, 283 3. Usage to pay on delivery.—A receipt is only prima facie evidence of the payment of money; and a contract made in the Board of Brokers in San Francisco, acknowledging the receipt of money, having been delivered before the money was paid, it is competent to prove the habitual course of dealing among members of the board in like transactions, in order to account for the mistake. Winans v. Hassey, 2,284 4. Commissions.-Evidence that certain large sales of coal could only have been made through the particular brokers employed, held, to be competent upon suit to recover back commissions. Carter v. Philadelphia Co., 2,287 5. Broker's contract.-An ordinary broker's contract, for the buying of stock each share of which has a distinct and independent value, can not be regarded as entire. Marye v. Strouse, 2, 294 6. Custom-Broker's charges.—A custom among mining brokers of charging each customer the full price of a telegram upon the receipt of a dispatch containing several orders, if it can be considered reasonable, ought to be established by very satisfactory proof, and it should also appear that both parties had knowledge of it. Id. 7. Broker's license.-One who brings an action to recover compensation for procuring a sale of coal lands under a special contract, need not show that he had a license to act as a real estate broker. Shepler v. Scott, 2, 674 8. Liability to broker for purchased stock-Readiness to deliver.— Seal, a broker, bought stock on the order of Wynkoop, paid for it and informed him of the purchase. The stock was delivered to Seal; he frequently asked Wynkoop to take the stock, and although there might have been times when no stock was in his name, he could at any time have delivered it to Wynkoop, who never requested a delivery. Held, that Seal could recover for the money advanced, and that Wynkoop was estopped from alleging that Seal could not comply, never having offered payment or demanded delivery, and Seal being ready to deliver at the time of trial. Wynkoop v. Seal, 13, 493 9. Idem-Temporary transfer of the stock by the broker.-It was not error to refuse to charge that plaintiff could not recover because at some intermediate time the broker had not the stock standing in his name or had temporarily hypothecated it. Id. 10. Broker's liability for stolen stock sold on commission. Bercich v. Marye, CERTIORARI. 13, 544 1. Extent of judgment upon certiorari under statute. Miller v. Sparks, 6, 232 2. Certiorari to commissioners.-If a person against whom an assessment is made make an affidavit before the commissioners of appeal to what he believes to be the true value, and the commissioners refuse to make a corresponding reduction, relief can be obtained in this court by certiorari. State v. Randolph Township, 14, 103 CLAIM. 1. A claim of water merely for speculation, and not intended for any useful purpose, is invalid. Weaver v. Eureka Co., 1, 642 2. Claim, how lost.-The right to a mining claim acquired by appropriation and occupancy may be lost: 1. By forfeiture under the district rules. 2. Where no district rules exist, by failure to work the claim with reasonable diligence. 3. By abandonment. Mallett v. Uncle Sam Co., 1, 17 3. Mining claim may be sold on execution.-The interest of a miner in his mining claim is property, and is liable to seizure and sale under execution. McKeon v. Bisbee, 2, 309 4. Right of entry on mineral lands. Gillan v. Hutchinson, 2, 317 5. A mining claim has a legal money value of such a nature as to be estimated and to allow of appeal to this court, as in other cases where "the value of the property in dispute" must exceed $2,000, as the basis of jurisdiction. Sparrow v. Strong, 2, 320 6. National recognition.-Such claim may be a right acquired under the Mexican government; is recognized by territorial authority, and in any event has received national sanction by the acquiescence of the government in its acquirement. Id. 7. Tenure of mineral lands.-A statute of Cal., Pr. Act, § 380, provides in substance that any controversy which might be the subject of a civil action, may be submitted to arbitration "except a question of title to real property in fee or for life." Held, that under this statute an action for the recovery of mining ground on the public domain could not be submitted to arbitration. Spencer v. Winsel2, 334 man, 8. Mining claims, real estate. -Mining claims are real property and pass by deed. Houtz v. Gisborn, 2,340 9. A claim is a title.-Claims located on the public lands are recognized, practically, as titles; recognized by courts as legal estates of freehold, except as to doctrine of abandonent. Merritt v. Judd, 6, 82 10. Status of possessory claims.-The appropriation of the public mineral lands and development of the same under the license and acquiescence of the Federal and State governments considered as fixing the status of mining interests in California. Merced M. Co. v. Fremont, 7, 313 11. Mining claim" defined. Mount Diablo Co. v. Callison, 9, 616 12. No presumption of uniformity in size of claims. Live Yankee Co. v. Oregon Co., 12, 94 13. Mining claims are treated as real estate although the title be held under conditions, and as such, are conveyed by deed, are sold on execution, and descend to the heir. Harris v. Equator Co., 12, 178 14. Vested rights of mining claimants.-Persons claiming and in the possession of, mining claims upon the public lands of the United States, are as between themselves, and all other persons except the United States, owners of the same, having a vested right of property founded on their possession and appropriation. Hughes v. Devlin, 12, 241 15. Possessory “ claims” are personal property, do not rank above estates for years, and contracts relating to them are therefore within the power of an administrator. Stewart v. Chadwick, 13, 236 16. A "claim" personalty-Sale of administrator.—A "miner's claim" being a mere possessory right on public lands, is personalty, and may be sold and conveyed by the administrator. Corbett v. Berryhill, 14, 671 See MINING CLAIM. CHANGE OF VENUE. 1. Wrong place of trial, how remedied.-District courts are courts of general jurisdiction, and the right to have a cause tried in particu |