posts, in the manner pointed out by statute, and Fourth: Making and recording a location certificate containing the name and description of the lodes, the name of the locator and the date of the location. It will be noted that the-statute does not require that the certificate shall contain a statement that the discovery shaft has been sunk the requisite depth, or so as to disclose mineral, nor that the discovery noted has been posted, or boundary stakes set; which things are made the chief requirements on the part of a locator in order to locate his claim" before filing the location certificate; although it is usual to include such statement in the certificate, when the performance of such work, posting and staking is a pre-existing fact; and it has been held by the United States circuit court of Colorado, that, though the locator of a mining claim may not have sunk his shaft to the discovery of mineral in place, prior to filing his location certificate, yet, if he shall, thereafter, so sink the shaft and disclose the lode, he will hold as against all who had not theretofore acquired an interest in the lode, the same as if he had uncovered it before the survey and filing the certificate, such discovery relating back to the location: Zollars and H. C. C. M. Co. v. Evans, 2 MeCrary, 39.

When the right of possession is founded upon an alleged compliance with the law relating to a valid location, all the necessary steps therefor, aside from the making and recording of the location certificate, must, when contested, be established by proof outside of such certificate; the record of the certificate being proof itself of its own performance as one of such steps, and in regular order the last step in perfecting the location. And the certificate when recorded is certainly competent evidence prima facie, of all which the statute requires such certificate to contain, and which are therein sufficiently set forth. And even when the certificate, for any of the reasons set forth in the statute, is deemed void, it has been held admissible in connection with a valid amended certificate correcting the defects of the original: Van Zandt v. Argentine M. Co., 2 McCrary, 159. In support of this holding, two principal reasons may be mentioned. First: The original certificate showing the date of location and record; although fatally defective in matter of description or otherwise, may well be considered as an element tending to show good faith on the part of the locator in attempting to comply with the law in making his location. Second: The introduction of such original together with the amended, or, as it is termed in the statute, "additional" certificate, may afford a means of comparison in respect to description and surface boundary of the premises located; whether the first is identical with that described in the additional certificate, or whether it embraces the precise ground or any portion thereof claimed by either of the contesting parties otherwise than according to such original location.

The section of the statute under which the right to file an amended or additional location certificate is given, is as follows: "If at any time the locator of any mining claim heretofore or hereafter lo

cated, or his assigns, shall apprehend that his original certificate was defective, erroneous, or that the requirements of the law had not been complied with before filing, or shall be desirous of changing his surface boundaries, or of taking in any part of an overlapping claim which has been abandoned, or in case the original certificate was made prior to the passage of this law and he shall be desirous of securing the benefits of this act, such locator, or his assigns, may file an additional certificate, subject to the provisions of this act: Provided, that such re-location does not interfere with the existing rights of others at the time of such re-location, and no such re-location or other record thereof shall preclude the claimant, or claimants, from proving any such title or titles, as he or they may have held under previous location."

The purpose of this additional certificate appears to be sufficiently expressed by the language of the act. It cannot create a right of possession or location in the premises claimed under the first location, which did not exist prior to the filing of such additional certificate; it can confer no additional right, and is, therefore, evidence of none, as against any intervening or pre-existing right of another. It follows that, except as against such intervening rights, an additional certificate serves the same purpose, in its admission as evidence, as that of an original location certificate, and will relate back to the first location.

The evident intent of the statute is that the additional certificate shall operate to cure defects in the original, and thereby to put the locator, where no other rights have intervened, in the same position that he would have occupied if no such defect had occurred.

Such intent is in accord with the principle of all curative provisions of law. Without such result, this provision of the statute would be ineffectual to confer any additional or other benefit than the provisions of section 2,411, general statutes, for an entire re-location of a mine or for an abandoned claim.

From the foregoing view of the purpose and functions of a location certificate, original and additional, it does not appear that the admissibility as evidence of such additional certificate is affected by the circumstance that it was filed subsequent to the commencement of the suit, since it is not evidence of any after-acquired right or interest, but merely evidence relating to a right of possession which must have been acquired prior to the filing of such certificate, and prior to the acquisition of any intervening right of the controverting party.

Counsel for appellants argue that it is illogical and erroneous to hold that the amended certificate can relate back to the original, if the original be void, for, if void, it is dead, and the same as if it had never existed; but we are not so holding. What we say is, not that the second certificate relates to the first, in the sense in which the term relation is used to express a well known legal doctrine, but that it relates back to a right of location, acquiring by virtue of the pre-requisite acts of discovery, prior possession,

excavation, posting, marking boundaries, and an attempted compliance with the law respecting the filing of a location certificate.

It is further to be observed, that the rule in ejectment, that the plaintiff must recover, if at all, on the strength of his own title, and not upon the weakness of that of his adversary, is held not to apply to possessory actions for mining claims, when neither party has, strictly speaking, any legal title, but when the prior possession of the plaintiff is pitted against the present possession of the defendant. "Practically, the real question involved in all such cases is, which, as against the other, has the better right to mine the land in question?" Richardson v. McNulty et al., 24 Cal., 339.

Each party must prove his claim to the premises in dispute and the better right must prevail: Lebanon M. Co. v. Con. Rep. M. Co., 6 Colo., 371; Golden Fleece Co. v. Cable Co., 12 Nev., 312.

The right to mineral lands, before a patent issues from the government, rests in possession of the claimant. To constitute such possession as will give this right, under location statutes, neither residence on the premises nor continuous actual occupation, nor that kind of possession for which appellants' counsel contend, denominated possesio pedis, is required: English v. Johnson, 17 Cal., 108. The right of possession is the sole issue in the case at bar. The appellees established their prior right by proof of discovery, prior possession, sinking a discovery shaft, disclosing mineral, in place, posting the proper notice, marking the surface boundaries, and attempting to complete the location by filing a location certificate. These acts were all done the year previous to the appellants taking possession of the same premises and attempting its relocation under another name. The original location certificate of appellees was recorded Sept. 20, 1879, and their amended certificate, June 16, 1881. The original certificate of appellants was recorded Aug. 30, 1880, and their amended one Sept. 26, 1881. It will thus be seen that the appellees were prior in possession and that their two location certificates were respectively prior to those of appellants. The original certificate of each party was held fatally defective and the amended certificates of both parties were recorded subsequent to the commencement of the action.

There was no error in receiving in evidence the original location certificate of appellees. If there was error in afterwards withdrawing it, of this the appellants cannot complain, since the only possible effect of such withdrawal was to the advantage of the complaining party, and the prejudice of the other side.

The error of the court, if in this case it was such, in rejecting the original certificate of appellants, was also without prejudice, for the reason that appellees by proof of prior possession and location, having established their right of possession at the time of appellants' entry, such subsequent entry and relocation by appellants in the absence of abandonment, forfeiture or otherwise intervening loss of right by appellees, conferred upon appellants no right as against appellees, and so their location certificates, being both subsequent

respectively in time to the corresponding ones of appellees, related to no superior right, and hence, while admissible in evidence, counted for nothing in appellants' favor.

The appelees' priority of possession and seniority of location certificates are undisputed; the issue was the right of possession. Under this issue, the appellants, who by their answer simply denied this right in the appellees, contested the same on the ground of an alleged want of compliance with the law on the part of appellees in the amount of work done in sinking the discovery shaft, posting discovery notice and in the necessary working of the surface boundaries of the claim. If then, the appellees established by the testimony their compliance with law in respect to these points in dispute, their prior right of location and superior right of possession thereby followed, and so continued to exist unimpaired down to the time of trial in this case. It is therefore clear that neither the original nor amended certificate of appellants could avail for any purpose as evidence, unless the appellants first established a superior right of location, for as we have before stated a location certificate can confer no right of location of itself, and can relate only to a right of location acquired previous to its filing.

We are not now contending against the admissibility of these certificates as evidence; we concede that the original in connection with the amended one might properly have gone to the jury; that in certain cases, error might be well assigned upon the exclusion of such certificate; but we are here giving reasons for our holding that, if there was possible error in the rejection of the original certificate in this instance, it was error with prejudice to the party complaining, and therefore no sufficient cause for reversal. The instructions given by the court, correctly stated the law applicable to the facts in controversy, and covered all the points in issue in the case. There was, therefore, no error in not giving the instructions prayed by appellants and which were refused by the

court.

The testimony as to the amount of work done by appellees on the mine, previous to the relocation by appellants, is conflicting, between the witnesses on one side, and those upon the other; but as the jury were the sole judges of the credibility of the witnesses and the weight of testimony, we cannot say that the verdict was contrary to the weight of such testimony, and under the frequent decisions of this court there is no cause for reversal on this ground. The jury were warranted in finding upon the testimony, as they evidently did, that the right of possession was in appellees, by reason of discovery, priority of possession, and a prior location, such as to give them the better right to the premises in controversy.

The remarks of the district judge to the jury when they were called in before the court, after being out for sometime pending their deliberations upon this verdict, were, we think, not calculated to produce a hasty, indeliberate, or unfairly considered verdict. These remarks were of considerable length, and we do not consider

necessary to quote them in full, but in substance they reminded the jury of the disastrous effects to litigants and to the public of failures on the part of juries to agree upon verdicts at the end of protracted litigation; that this was the third trial of the case in hand, and that the efforts of the court would be to secure a verdict in this instance if within the bounds of possibility. To prevent any possible undue influence or misconception of the object of these remarks, the court added in conclusion: "These remarks, gentlemen, are not made for the purpose of influencing your judgment or biasing your minds. They are not made for the purpose of coercing you or influencing you, except, so far as they impress on your minds the importance of making every honest and conservative endeavor possible to arrive at a verdict; and you are not to pay any attention to them, save as they may serve that purpose. I don't suppose there is a single man upon the jury who is acting in any other than a conscientious manner. I don't think there is a man among you who would do so under the oath you have taken, but it is possible that further consideration of the evidence, and further discussion may lead you to arrive at a conscientious agreement. This is all I have to say. I am going to ask you to retire with the bailiff and further consider of your verdict."

While a judge is not warranted in saying anything to the jury to influence their decision, or indicate to them what their verdict should be (except upon the hypothesis laid down in the written instructions submitted) or even to unduly hasten a verdict, we can see nothing in the remarks made to the jury here that could have operated viciously; and one must presume that the judge had some good reason for addressing them as he did, to impress the importance of arriving at an agreement upon a verdict, if possible, upon the third trial of the case.

The other assignments of error arising upon the evidence do not appear to be well taken, and are not of sufficient importance to call for discussion.

The judgment will be affirmed.

BRUCKMAN v. TAUSSIG.
Filed 1884.

JURISDICTION OF COURTS WHEN PRESUMED-ACTION ON JUDGMENT OF COURT OF GENERAL JURISDICTION.-The jurisdiction of courts of general jurisdiction is presumed, and the judgments and decrees of such courts are in all cases of at least prima facie validity. In pleading such judgment or decree as a cause of action or as a defense, jurisdictional facts need not be stated. The same rules apply whether the judgment sued on is domestic, foreign, or of one of the sister states.

EXISTENCE OF FOREIGN COURT, HOW PROVED EVIDENCE OF FOREIGN STATUTE.-The law establishing a court in another state and conferring general jurisdiction thereon, may be proved by a book purporting to contain the laws of such state, under section 337 of the civil code.

JUDGMENT OF SISTER STATE-ACTION ON-INTEREST ALLOWABLE.-Interest on a judg ment of a sister state, as specified therein, is allowable in an action thereon in another state.