Continued.
stock personally liable to pay assessments. Franks Oil Co. v. Mc-
Cleary,
37. Personal liability statute not enforced extra-territorially.
First Nat. Bk. v. Price,
38. Parol agreement to waive personal liability. Basshor v. Forbes,
39. Personal liability of trustee--Proof of acceptance of trust.—
The mere election of a trustee, under the general act for the formation
of manufacturing and mining companies, does not render him liable
for the debts of the corporation because of a failure to comply with
the law; there must be evidence of an express or implied acceptance
of the office. Cameron v. Seaman,
40. Annual report—Filing of, after set period.-Under the act re-
quiring the company annually, within twenty days from the first of
January, to make a report, which shall be signed, verified, filed
and published, the filing and publishing may be done after the twenty
days have elapsed. (FOLGER and RAPALLO, JJ., dissenting.) Id.
41. Corporation to be first pursued by a creditor. Ladd v. Cart-
wright, 13, 607; Milroy v. Spurr Mtn. Co.,
12, 53
42. Equity is the only proper forum for enforcing the personal
liability of stockholders. Ladd v. Cartwright,
13, 607
43. General statement of the facts and proof necessary to fix per-
sonal liability upon a stockholder, with citation of the authorities by
the court. South Mt. Co., In re,
44. Liability under Sec. 349 of California code relating to the sale
of delinquent stock.—The stockholders are not personally liable for as-
sessments unless from the terms of their subscription. Id.
45. Effect upon stock.-The statutory personal liability of stock-
holders of mining corporations does not affect the stock itself; and
such liability does not, therefore, amount to a breach of warranty
against incumbrances, upon a sale by a stockholder by whom such
liability has been incurred. Williams v. Hanna,
46. Personal liability for over-issue of stock.-Officers of a corpo-
ration, guilty of an over-issue of stock, are liable to those persons into
whose hands the shares may come, the same as if they had been issued
to the plaintiff directly. Bruff v. Mali,
47. Shifting burden of proof.-In such action to recover the cost
of such spurious shares, when the plaintiff has proved that the shares
in question were not issued until after all the authorized stock had
been issued, the burden of proof is upon the defendants to show that
the shares were genuine, or were issued in lieu of genuine canceled
shares. Id.
48. Enforcing stockholders' personal liability; analogy to garnishee
proceedings. Coalfield Co. v. Peck,
13, 623
1. Coal broken becomes personalty. Lykens Valley Co. v. Dock,
8, 570
2. Idem-Removal of loose coal by assignee subject to lessee's cove-
nants. Id.
3. Rule as to severed personalty. Noble v. Sylvester,
12, 62
4. Application of the rule.-A stone split out from the ledge and
intended for the construction of a tomb, left lying on the land more
than thirty years after sale of the land, held, the personal property of
the vendor. Id.
5. Parol proof of exception-Continued assertion of claim.-Prop-
erty so severed and converted does not need to be specially excepted in
the deed conveying the land; and the fact that a parol exception was
made of such stone, was properly shown, as well as the statements
of the party claiming to own the stone, when there was nothing in
the position of the stone itself to show whether it belonged to that
class of property which would, or of that class which would not, pass
under the deed. Id.
6. When severance complete.-It is not to be considered as severed
from the mass until it exists as the coal of commerce. McLean Co.
v. Lennon,
7. Split stone lying on land, sold during statutory period.-Held,
that they remained the property of the original owner in the absence
of any conversion or assertion of dominion by the vendee of the land
in the meantime. Baker v. Chase,
8. Right to remove personalty from land granted. Id.
PLACERS.
1. Placer may exceed 160 acres and cover several locations. St.
Louis Smelting Co. v. Kemp,
2. The size of placer claims may be limited by district rules. Ro-
senthal v. Ives,
15, 324
3. Patent for placer, including specified lode. Reynolds v. Iron Sil-
ver Co.,
15, 591
4. Lodes after discovered.-Where no such vein or lode is known to
exist, the patent for a placer claim shall carry all such veins or lodes
within its boundaries which may be afterward found to exist under its
surface. Id.
5. But where a vein or lode is known to exist under the surface in-
cluded in such patent, and is not in claimant's possession, and not
mentioned in the claim on which the patent issues, the title to such
vein or lode remains in the United States, unless previously conveyed
to some one else, and does not pass to the patentee, who thereby ac-
quires no interest in such vein or lode. Id.
6. Gravel deposit or stratum not a lode. Gregory v. Pershbaker,
15, 602
7. Placer claims include all forms of deposit excepting veins of
quartz or other rock in place. Id.
8. Placer location without discovery.-The location of a placer
mining claim is valid, notwithstanding no valuable mineral had been
actually discovered in the land before the location was made. Id.
9. A placer patent does not pass title to a lode discovered, located,
and recorded before the date of the application for a placer patent;
and it is immaterial whether or not the existence of such lode or of
the location thereon was known to the placer applicant. Noyes v.
Mantle,
15, 611
10. When a person applies for a placer patent in the manner pre-
scribed by law, the question whether it is placer ground is conclusively
established and is not open to litigation by private parties seeking to
avoid the effect of the proceedings. Dahl v. Raunheim,
11. A lode patent issued subsequent to the issue of a placer patent
of a tract within whose metes and bounds the lode patent is located,
is not conclusive evidence that the lode was such a known lode at the
time of the issue of the placer patent as to authorize the issue of a
later patent for the lode itself. Iron Co. v. Campbell,
PLEADING AND PRACTICE.
A-ADMISSIONS BY PLEADING.
B-AMENDMENT.
C-ANSWER.
D-APPEAL.
E-ASSIGNMENT OF ERROR.
F-BILL OF EXCEPTIONS.
G-CHANGE OF VENUE.
H-COMMON COUNTS.
I-COMPLAINT.
J-CONTINUANCE.
K--CROSS-COMPLAINT.
L-DEFAULT.
M-DEMURRER.
N-ERROR AND REVIEW.
O-EVIDENCE-WITNESS.
P-FINDINGS.
Q-FORM OF ACTION.
R-FORMER SUIT OR RECOVERY.
S-INSTRUCTIONS.
T-ISSUE.
U-JUDGMENT AND DECREE.
V-JURISDICTION.
W-MOTIONS-NOTICE-ORDERS-RULES.
Z.-PARTIES-JOINDER AND MISJOINDER.
AA-PLEADINGS IN GENERAL
BB-PRAYER.
CC-PROCESS.
DD-REMITTITUR.
EE-REPLICATION.
FF-TRIAL-REFERENCE-JURY.
GG-VARIANCE-WAIVER.
HH-VERDICT.
A. Admissions by Pleading.
1. No admission by failure to reply-Error without prejudice.
Caruthers v. Pemberton,
2. Denial of unlawful breaking of ditch.-Where the fact that the
PLEADING AND PRACTICE—Admissions by Pleading. Cont'd.
defendant "wrongfully" broke a flume is denied, the fact that he
broke it is admitted and no proof of breaking is required; and conced-
ing plaintiff's right of property in the flume would entitle him at
least to nominal damages upon the pleadings. Feeley v. Shirley,
12, 132
3. To general denial construed as specific admission. Verzan v.
McGregor,
2, 566
4. Admissions in answer which negative denials.-The latter may be
disregarded. Fremont v. Seals,
11, 632
5. Insufficient denial of averment of labor.--The complaint charged
that labor was performed on a certain mining claim and the denial
was a denial that he worked for the defendant. Held, an admission
that the work performed and sued for was done upon the claim speci-
fied. Bradbury v. Cronise,
9, 366
6. Implied denial of title with implied concession of the trespass.
Wood v. Richardson,
12, 121
7. The material allegations in a complaint for partition of real
property which are not denied by the answer, are deemed admitted
for the purposes of the trial. Hughes v. Devlin,
12, 242
Title admitted by demurrer--Injunction.-When the defendants
by demurring to the complaint have admitted the right of the plaint-
iff to the use of the water in controversy, the plaintiff may have an
injunction against its diversion without first establishing his title by
an action at law. Tuolumne Co. v. Chapman,
Admissions by failure to plead over.-In an action of trespass
the declaration alleged ownership of the close; a demurrer to the de-
fendant's plea in abatement was sustained and the defendant failed to
plead further; held, that by this course the defendant admitted all the
facts alleged in the declaration, and would not be permitted to prove
in mitigation of damages an entry under color of title, or to interpose
any substantive defense. Utley v. Clark-Gardner Co.,
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10. Amendment at the hearing.—Plaintiff having declared for the
entire property, it was developed on the trial that in consequence of a
defective deed he had title to only two-thirds of the claim. Held, that
plaintiff could not, on this declaration, recover for two-thirds, and that
the person holding title to the other third of the claim might not, with-
out his consent, be joined as party plaintiff, yet plaintiff might amend
his complaint so as to demand but two-thirds. Van Zandt v. Argen-
tine Co.,
4, 441
11. Of defective complaint.-Upon complaint seeking an account-
ing between ditch owners, proceeding partly upon the theory of a
partnership between the parties, and partly upon the theory of a co-
tenancy, but failing to state facts sufficient to constitute either a part-
nership, or sufficient to make a case for partition: Held, that the
plaintiffs were not entitled to any of the relief demanded in the prayer,
but would be allowed to amend on payment of costs. Bradley v.
Harkness,
PLEADING AND PRACTICE-Amendment.
12. The Appellate Court may amend decree of the court below.
Union Co. v. Murphy's Flat Co.,
13. Misjoinder may be cured by amendment. Huff v. McDonald,
14. Contract to pay royalty-Affidavit of defense. Eshelman v.
Thompson,
15. Plea in equity defined.-A plea in equity is a special answer,
only allowed when it puts the matter upon some one point which is
decisive of the controversy. Carter v. Hoke,
16. Striking out part of answer.-Upon suit for services under a
contract defendant answered that plaintiff had violated his contract,
and also alleged certain torts by him committed in slandering the credit
of the company. Held, that the allegations of tort were properly
stricken from the answer. Bates v. Sierra Nevada Co.,
1, 345
17. Shifting burden of proof.-An answer which is not responsive
to the complaint makes no issue. When the complaint which is not
denied makes out a prima facie case, the burden is upon the defense
to sustain their affirmative allegations. Thompson v. Lee,
18. Objection to sufficiency of answer after verdict.—An objection
that the answer is insufficient to form an issue, comes too late when
made for the first time after verdict. Orr v. Haskell,
4, 492
19. Form of denial.—Any form of denial which meets and traverses
the allegation is admissible. If the denial is not evasive, but directly
traverses the matter alleged, it is good, without regard to the mere
form in which it is expressed. Hill v. Smith,
20. To a count of a declaration upon a bond, non est factum is the
appropriate plea, but nil debet is proper where the bond is set forth
merely as inducement. Gear v. Shaw,
7, 643
21. Statutory denials of answer.-Where the statute provides that
the allegations of the answer shall be deemed to be denied, this does
not take the place of a bill in equity on which to grant affirmative
relief. Kahn v. Old Telegraph Co.,
11, 647
22. Answer can not vary legal effect of contract. Fort Scott Co. v.
Sweeney,
12, 166
23. Failure to deny damages.--In trespass, where defendant fails
to deny the amount of damages alleged in the complaint, although the
alleged cause of the damage be denied: Doubted whether the amount
of damages was put in issue. Rowe v. Bradley,
24. Rule where the answer denies all equities. Development Co.
v. Silva,
nevertheless a final judg-
Neall v. Hill,
25. Final judgment.--A judgment providing, in addition to its
other terms, that an account be taken, is
ment, from which an appeal may be taken.
26. From judgment on demurrer.-Where a demurrer to a petition
in a suit in equity is sustained in the District Court, the cause may be
taken by appeal to the Supreme Court.
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