the request of defendants, was not well taken, as the instruction was, in substance, the same as the one just noticed. The ninth and twelfth instructions offered by defendants were not given by the court, as appears from the record. The letter of Kibbe is not contained in the record, and we can not judge whether its admission was error or not. The mere fact that the letter was admitted does not show error.

We think the testimony of Ballinger was properly excluded. He was a member of the plaintiffs' company during a part of the time transpiring between the date of their location on the 13th of August, 1855, and the commencement of this suit June 10, 1857. His bill of sale to the other members of the company left him interested in the damages sought to be recovered.

The court properly overruled the motion for a new trial. The verdict was not contrary to the testimony. There was no surprise on the part of plaintiffs that fair diligence could not have avoided. The mistake of counsel, as to the competency of Ballinger, was no cause for granting the motion. The objection to his competency could have been readily removed. Upon the whole, we think that substantial justice was done, and the judgment of the court below must be affirmed.

Affirmed.

ROACH ET AL. V. GRAY ET AL.

(16 California, 383. Supreme Court, 1860.)

1 Mining regulations as evidence-Affecting vested rights. In a suit for the possession of mining claims, the defendant was allowed to read in evidence the mining rules of the district, though adopted after the plaintiffs' rights had attached. Held, that as defendants claimed under the rules, they were competent for the purpose of determining the nature and extent of their claim, and their effect upon pre-existing rights was sufficiently guarded by the instructions.

Appeal from the Fourteenth District.

Suit for possession of certain mining claims; plaintiffs claiming under parties who located the claims in 1854. De1 Orr v. Haskell, 4 M. R. 492; King v. Edwards, 4 M. R. 480.

fendants claim under a location made by them in 1858, they contending that plaintiffs had forfeited their rights by noncompliance with the mining rules of the district, adopted in December, 1856, to take effect February 1, 1857, the previous rules of 1855 being abolished. These rules were read in evidence by defendants, plaintiffs objecting.

The testimony of plaintiffs went mainly to show that they were prior locators, and had not abandoned the claims in dispute; that any interruption in working the claims was caused by want of water. The testimony of defendants tended to show that when they located, in 1858, no one was in possession or working the claims; and that defendants' failure to get water was because they would not pay for it. It was shown that defendants had, and plaintiffs had not, recorded their claims in the miners' record, and that by the mining rules failure to record forfeited the claims.

Plaintiffs asked various instructions, some of which are the ordinary instructions in ejectment, as to recovering on the strength of title, prior possession, etc. But others were, in effect, that the law neither presumes nor favors forfeiture or abandonment, but holds parties pretending to have acquired rights in consequence of such forfeiture or abandonment to strict proof; that, if plaintiffs were prevented from working the claims from want of water, and this want was caused by their inability to pay for the water, then such failure to work would not, of itself, operate a forfeiture under the mining rules; that the court passes on the question of forfeiture under the mining rules, and that the jury has nothing to do with it.

For defendants, the court gave, among others, instructions to the effect that a party can maintain his rights to mining ground by occupancy, actual or constructive; and that constructive possession can be shown only by proving compliance with the mining customs and regulations in force at the locality; that if a party claiming mining ground fails to work it within a reasonable time, the claim becomes subject to the intervening rights of others who locate and proceed to work; that where a party attempts to justify his failure to occupy and work a claim, by showing that the claim was not workable, he must prove that he was prevented working the claim by some accident, or some event not of his making, or which he might have controlled.

The jury found for defendants. Plaintiffs appeal.

J. J. CALDWELL, for appellants.

T. P. HAWLEY, for respondents.

COPE, J., delivered the opinion of the court, FIELD, C. J., concurring.

This is an action to recover possession of certain mining claims. The trial seems to have been fairly conducted, and the evidence was sufficient to justify the verdict. The plaintiff's asked a number of instructions, which were given by the court; and the effect of these instructions was not impaired by those afterward given at the instance of the defendants. We do not see that the plaintiffs were prejudiced by the introduction of the mining rules of the district; nor do we see any valid objection to the admissibility of these rules. It is claimed that they were adopted after the rights of the plaintiffs had attached, and that such rights could not, therefore, be taken away or affected by them. Admitting this to be true, their incompetency as evidence does not follow. The defendants claimed under them, and for the purpose of determining the nature and extent of this claim, they were not only competent but proper and necessary evidence. Their effect upon pre-existing rights was sufficiently guarded by the instructions of the court.

We see no reason for disturbing the judgment, and it is therefore affirmed.

PROSSER ET AL. V. PARKS ET AL.

(18 California, 47. Supreme Court, 1861.)

1 Appropriation limited. The mining rules of a district may limit the quantity of ground which a party can acquire by location or prior appropriation.

Right to purchase unlimited. Such rules can not limit the quantity of ground he may acquire by purchase.

Appeal from the Seventeenth District.

1Jupiter Co. v. Bodie Co., 4 M. R. 411.

Ejectment for a piece of mining ground in Sierra county, fifteen hundred feet wide by twenty-eight hundred feet in length.

On the trial defendants introduced in evidence the miners' laws of Trigaski's Flat, the district where the ground was situated; and the sections pertinent to the point made are as follows:

"Sec. 2. A claim shall consist of twenty-five feet front, and extend into the hill without limit, laid conformably to the established lines of Trigaski's claims.

"Sec. 3. Each person may hold one claim by pre-emption, and one claim by purchase, provided each purchased claim be represented during the working season."

Upon this evidence plaintiff's asked the following instruction, to wit: "The mining rules and laws which have been introduced in evidence in this case do not restrict miners in the quantity of mining ground they may locate or purchase in the mining district of Trigaski's Flat." Refused by the court, and the following instruction voluntarily given:

"The mining laws in evidence in this case limit the right of an individual to one claim of twenty-five feet by location or prior appropriation; but mining laws can not restrict the quantity of ground or number of claims which any party may purchase."

Verdict and judgment for defendants. Plaintiffs appeal.

VANCLIEF & PRATT, for appellants.

1. The legislature can not delegate to the miners of a district the power to make mining laws for that district. (Const. art. 4, sec. 1; Sedg. Stat. & Const. L. 166, 463 et seq.) 2. The mining laws introduced in evidence do not limit the quantity of ground a miner may locate or purchase.

H. I. THORNTON, for respondents.

COPE, J. delivered the opinion of the court, FIELD, C. J. and BALDWIN, J. concurring.

This is an action for the possession of certain mining. claims. On the trial of the case, the defendants introduced

the mining rules of the district, upon the effect of which the court gave the following instruction: "The mining laws in evidence in this case limit the right of an individual to one claim of twenty-five feet by location or prior appropriation. But mining laws can not restrict the quantity of ground or number of claims which a party may acquire by purchase." The appellants contend that the first clause of this instruction is erroneous, and their counsel have placed on file a lengthy and ingenions argument in support of their position. The principle involved is not, however, an open question in this court, and we are not inclined to entertain further discussion upon the subject. Our views are fully expressed in the recent case of English v. Johnson, 17 Cal. 107, and it is not our purpose to depart from those views.

Judgment affirmed.

On petition for rehearing, COPE, J., delivered the opinion. of the court, BALDWIN, J., concurring.

The petition for rehearing must be denied. The instruction of the court was based upon a correct interpretation of the mining laws of the district, and we are unable to perceive any valid objection to it. Petition denied.

ST. JOHN ET AL. V. KIDD ET AL.

(26 California, 264. Supreme Court, 1864.)

Objections to transcript made too late. It is too late to make technical objections to a transcript after the case is submitted upon its merits, even though such submission is made prior to the day on which the case was set for argument.

Exception taken after jury has retired. Exceptions to instructions taken after the jury has withdrawn to consider the verdict, but before the verdict is rendered, may be either allowed or refused in the discretion of the court, and no error committed.

'Attempt to prove two titles. Plaintiff's attempted to derive title through two different locations, and proved a clear title under the second, without objection by defendants: Held, that this was sufficient to sustain a verdict for plaintiff's, and that the admission of evidence relating to the first location, even if erroneous, became immaterial.

1 Weill v. Lucerne Co., 3 M. R. 373.