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the Little Jennie mine was not a well-known valid location at the time of the location of the Garfield lode. It will be presumed to be a well-known natural object or permanent monument until the contrary appears. Where a location is described by metes and bounds, as in this notice, and is further described as being 1,500 feet South from a well-known quartz location, and there is nothing in the evidence to contradict such a description, distance, and direction, we think the ground claimed to be sufficiently identified to meet the above requirements of the act of congress. Besides, we have already said, in substance, that we cannot, by merely looking at the notice itself, say, without evidence to the contrary, that the claim is not properly identified. WADE, C. J., in Russell v. Chumasero, 4 Mont. 309; S. C 1 Pac. Rep. 713. No objection having been made that the notice of location of the Garfield lode was not filed within 20 days after the discovery thereof, as required by the local law, such objection, if any, was waived. As will be seen hereafter, the certified copy of the declaratory statement or notice of location under oath of the Garfield lode was properly admitted in evidence. Every requisite, therefore, to a valid location of the Garfield lode was established by the respondent. No evidence was introduced by the appellant tending to invalidate the respondent's location. The only evidence offered by him was in relation to the question of forfeiture, which was upon the ground that the amount of work required by law was not done for the year 1882. The respondent's location was not questioned, and forfeiture was the only issue made upon the trial. The instruction complained of was, therefore, not prejudicial to the appellant. The plea of forfeiture was properly made by the appellant in his answer, and, this being the only issue made upon the trial, the following instruction by the court below was correct, except as to the pleadings, which, as we have said before, was not prejudicial:
“The right of the defendant to recover in this case depends upon the forfeiture, which he alleges took place, of plaintiff’s right to the premises by reason of the failure of plaintiff to expend in labor or improvements upon the said Garfield lode the sum of one hundred dollars during the year 1882. The plaintiff being in possession under a location, the validity of which is not questioned, it became the duty of defendants to prove by a clear preponderance of testimony that there was a forfeiture, and unless they have so proved the same to your satisfaction your verdict should be for the plaintiff.”
The appellant claims that the court erred in refusing to grant a new trial on the ground of newly-discovered evidence, which was that the Witness McDonald, who testified to having done the work constituting the representation of the Garfield lode for 1882, had stated out of court and before the trial, in the presence and hearing of two witnesses, that “he did not perform but two days’ work on said Garfield mine for 1882.” This newly-discovered evidence could only affect the credibility of the witness McDonald. There is also an affidavit by the witness McDonald contradicting the affidavit of the two witnesses, and asserting that he never made any such statement. This newly-discovered testimony is cumulative. The record shows that the witnesses Orth and Arnold, called by the appellant, testified upon the trial to substantially the same thing as is stated in the affidavits relating to the newly-discovered evidence. It is by no means clear that this newly-discovered evidence would have changed the result of the trial. In Levitsky v. Johnson, 35 Cal. 41, it is said:
“A party is presumed to know when he is ready for trial upon the main, essential issues involved, and he cannot be allowed a new trial, after having submitted his case upon such testimony as he thought proper to introduce in support of those issues of fact, by a showing that he had subsequently discovered additional pertinent evidence upon the same issue, unless it is clear that such evidence would have changed the result, and that the strictest diligence Would not have enabled him to procure the same on the trial.”
The granting of a new trial rests in the sound discretion of the court, and in refusing a new trial under the above circumstances we do not think the court abused its discretion. Caruthers v. Pembarton, 1 Mont. 111. It is claimed that the court erred in admitting certified copies of the certificate of incorporation of the respondent, of the declaratory statement under oath of the locators of the Garfield lode, and of the deeds showing title from them and the other predecessors in interest to the respondent. In the case of McKinstry v. Clark, 4 Mont. 370, S. C. 1 Pac. Rep. 759, a question arose as to the admissibility of a certified copy of a declaratory statement; and in the opinion of the court it was said:
“The law requires the discoverer to make and file in the office of the recorder his declaratory statement to be by him recorded. And section 384 of article 4 of the fifth division of the general laws is as follows, to-wit: “Copies of all papers filed in the office of the recorder of deeds, and transcripts from the books of record kept therein, certified by him under the seal of his office, shall be prima facie evidence in all cases.” And section 609, Civil Code: ‘There can be no evidence of the contents of a writing other than the writing itself, except in the following cases: * * * Paragraph 4. When the original has been recorded, and a certified copy is made evidence by this Code or other statute. And in further explanation, the second clause of the fifth subdivision provides that, in the cases mentioned in subdivisions 3 and 4, a copy of the original, or a certified copy, must be produced. Taking all these statutes together, the correct conclusion is that either the one or the other is competent evidence to offer; and it was not error in the court below to admit the certified copy of location notice in evidence without first accounting for the original. The foregoing is also conclusive as to the second specification of error. By reference to the above case it will be seen that the second specification of error was: “Admitting a certified copy of deed from Ford to Cameron. The certified copy of the deed was also, therefore, properly admitted.”
The above language is also applicable to the certified copies of the certificate of respondent's incorporation. It is objected that the court erred in refusing the appellant to ask of a witness the following question:
“From the examination you made of the discovery shaft in 1881, and in June, July, and August, 1882, are you able to state whether you would have known it, if any work had been done in said shaft?”
The answer to this question would simply have been an opinion by the witness as to whether or not work had been done in the shaft in June, 1882. The witness does not appear to have been a mining expert, and it was only competent to show by him the facts, such as the condition and appearance of the shaft at the respective times stated, and it was for the jury to determine from such facts whether or not work had been done.
The only other objection insisted upon is that the respondent had not filed in the proper office its certificate of incorporation. This question was considered by this court in the case of King v. National M. & Exploring Co., 4 Mont. 1, S. C. 1 Pac. Rep. 727, where it was determined that under sections 46, 47, p. 419, Codified St., "that foreign corporations are * * * not prohibited from doing business in this territory.” We are satisfied with that decision, and it is an answer to the above objection.
We see no error in this record that is prejudicial to the appellant. Judgment affirmed.
SUPREME COURT OF ARIZONA.
(2 Ariz. 27)
COUNTIES-ACTIONS AGAINST-JURISDICTION OF DISTRICT COURT-ARIZONA STAT- UTE OF FEBRUARY 12, 1881. The right to sue a county is not affected by the act of February 12, 1881, and extends to every case of an account after presentation to and rejection by the board of supervisors.
Appeal from the district court, Mohave county. E. M. Sanford, for appellants, Anson H. Smith and others. Clark Churchill, Atty. Gen., for respondent, County of Mohave. FITZGERALD, J. This was an action brought by plaintiffs against the county of Mohave on a contract by which the plaintiffs agreed to do the county printing at a fixed compensation to be paid for by the defendant. The complaint, after setting forth the contract as executed, alleges full performance of its terms and conditions by plaintiffs, and presentation to and rejection of their demand by the board of supervisors of said county. Defendant demurred to the complaint, which was sustained by the court below, and the propriety of its action, in that respect, is brought in question by this appeal. The sole question presented at the hearing of the demurrer in the court below, and the only one urged here, is whether the district court of Mohave county has jurisdiction to determine the merits of a claim against a county by original proceedings in the nature of assumpsit commenced in that court, when such claim has been presented to and rejected in whole or in part by the board of supervisors. It is contended in support of the demurrer that the act of February 12, 1881, expressly withdraws questions of this character from the courts, and confers exclusive jurisdiction upon the board of supervisors. The language of the act shows, we think, conclusively that the legislature intended simply to prescribe the manner of presenting claims against counties, and to define the duties of the board of supervisors in passing on the same, and that it in no way modifies or affects section 3 of chapter 2 of the Compiled Laws, authorizing counties to sue and be sued. The right to sue a county remains unimpaired, and extends to every case of account after presentation to and rejection by the board of supervisors. Judgment and order reversed, and cause remanded, with directions to the court below to overrule the demurrer.
HowARD, C. J., and PINNEY, J., concur.
SUPREME COURT OF NE VADA.
(19. Nev. 180)
1. CORPORATIONS – GRATUITOUS PAYMENT OF DEBTS OF – RATIFICATION - LIABILITY. Where a person, with the knowledge and acquiescence of the officers of a corporation, and without special request, advances money to pay the debts of said corporation, the acquiescence of such officers amounts to a ratification, and the corporation will be liable to him for the money so advanced.
2. EMPLOYER AND EMPLOYE – CONTRACT OF EMPLOYMENT—PERFORMANCE-RECOVERY. Where an employe has been hired to do certain work at a specified price for a given time, and he is ready and willing to perform throughout the term of the employment, but employer fails to furnish the work, employe may recover full contract price. 3. SAME-FOREMAN OF MINE-PAYMENT OF LABORERS—WOUCHERS. Where a foreman in a mine, charged with the employment, management, and discharge of laborers in such mine, pays such laborers out of his own funds, in an action against his employer to recover the amounts thus advanced, the time-account of the laborers thus paid by the foreman, and the receipts given by them to him therefor, are admissible as evidence.
LEONARD, J., dissenting.
Appeal from a judgment of the Third judicial district court, Esmeralda county, entered in favor of the plaintiff.
P. Reddy, for appellant.
Thos. H. Wells, for respondent.
HAwl,EY, J. The amended complaint in this action contains two counts. The first is for $2,224, upon a stated account as settled May 4, 1878. The second is for an alleged indebtedness of $20,273.28, itemized as follows: $2,000 money had and received by defendant from plaintiff on October 25, 1879; $10,072 for money paid out and expended by plaintiff for the use and benefit of defendant; $321 for tools, materials in building house, office expenses, powder, and taxes; $343.60 judgments in justice's court against defendant paid by plaintiff; $7,535 for 1,507 days' work and labor as foreman of the defendant at $5 per day. There is an admitted credit of $10,320.46, and the suit is brought to recover an alleged balance of $12,176.82. The answer specifically denies each and every allegation in the complaint and generally denies any indebtedness whatever. The cause was tried before the court, without a jury, and plaintiff recovered a judgment for $5,762.09. Defendant appeals and contends that the evidence is insufficient to support the findings and judgment.
Before reviewing the specific items it becomes necessary to consider some of the peculiar facts of this case, which bear, more or less, upon each of the several items of the account. Respondent was the
1 See note at end of case.