did attempt to do so. As the court in Williams v. Townsend, supra, held that the question of co-operation was for the jury, and that its verdict, having received the approval of the trial court, was conclusive in the appellate tribunal, so, in this case, where findings, verdict, and judgment concur in a denial of co-operation on the part of Dressen and Dick in the act which caused the fire, and of liability on the part of the latter, the judgment cannot be disturbed, as the record shows some supporting evidence. The alleged errors in the admission and exclusion of evidence do not appear to us to be material in view of the proposition of law we have stated as governing our decision. The judgment of the district court is affirmed. All the judges concurring.

LANDIS v. DAVIDSON.

(Court of Appeals of Kansas, Southern Department, C. D. June 18, 1898.) SUPREME COURT-JURISDICTION. Where it appears, on a writ of error to the court of appeals, that a cause involves the title to real estate which is differently valued by the parties at $2,500 and $4,000 respectively, it presents a case for determination by the supreme court.

Error to district court, Kingman county. Action by George Landis against S. E. Davidson. Motion to dismiss a petition in error in court of appeals considered, and cause ordered certified to supreme court.

Amidon & Conley, for plaintiff in error. Sankey & Campbell, for defendant in error.

PER CURIAM. In considering the motion filed by the defendant in error to dismiss the petition in error, we find that the action involves the title to real estate which was alleged by the plaintiff below to be of the value of $2,500, and by the defendant to be worth $4,000. It thus appears to be a case for determination by the supreme court, and it is accordingly ordered to be certified to that court.

(7 Kan. A. 645)

PHELPS & BIGLOW WINDMILL CO. v. HONEYWELL et al.

(Court of Appeals of Kansas, Southern Department, C. D. June 18, 1898.) NEGOTIABLE NOTE-WHAT CONSTITUTES. The negotiability of a promissory note is held not to have been destroyed by the addition of the following statement: "This note is given for certain labor and goods and material furnished in the erection of an improvement upon my real property in the nature of a windmill and attachments, by the payee, pursuant to previous written order in that behalf; and the execution, delivery, and acceptance of this note shall not in any way or manner be deemed a waiver of any lien the Phelps & Biglow Wind

mill Company may have therefor upon said real property in said written order described."

(Syllabus by the Court.)

Error from district court, Harper county; G. W. McKay, Judge.

Action by W. F. Thayer against Albert Honeywell and others. The Phelps & Biglow Windmill Company files cross petition. From a judgment in favor of cross petitioner for the amount of its notes, but denies a lien, plaintiff brings error. Reversed.

Geo. E. McMahon, for plaintiff in error. Sankey & Campbell, for defendant in error.

MILTON, J. In an action to foreclose a real-estate mortgage securing a note for $1,000, both instruments having been executed and delivered by Albert Honeywell to the Johnson Loan & Trust Company, and by it assigned to W. F. Thayer, the plaintiff in error, as a defendant and cross petitioner, sought to foreclose its mechanic's lien for a windmill it had erected thereon for Honeywell, and for which he had given to the company his promissory note for the principal sum of $223.05. The journal entry of judgment shows the court found specially that the allegations of the cross petitioner were true, but denied the right to the lien upon the ground that the action was begun too late, the note being regarded as nonnegotiable, and the cross petition not having been filed until one year and two days after the maturity of the note, not counting days of grace. The court rendered personal judgment against Honeywell and in favor of the windmill company for the amount of the note. To review the action of the court in denying its right to the lien the plaintiff in error brings the case here.

The note reads: "$223.05. Attica, Kansas, Dec. 7, 1886. Two years after date I promise to pay to the Phelps & Biglow Windmill Company, or order, at

bank,

at Attica, Kansas, two hundred twenty-three and 5/100 dollars, for value received, with interest at the rate of eight per cent. per annum from the date hereof, and ten per cent. after due until paid, interest payable annually. This note is given for certain labor and goods and material furnished in the erection of an improvement upon my real property in the nature of a windmill and attachments, by the payee, pursuant to previous written order in that behalf; and the execution, delivery, and acceptance of this note shall not in any way or manner be deemed a waiver of any lien the Phelps & Biglow Windmill Company may have therefor upon said real property in said written order described. Albert Honeywell." The defendant did not plead the statute of limitations or demur to the cross petition. He filed a demurrer to the evidence offered in support of the cross petition, and the same was sustained as to the lien. Defendant in error has filed a motion to dismiss the proceedings in error for want of jurisdiction in

this court to consider the same, the claim being that the record does not affirmatively show the amount in controversy to exceed $100, and does not contain a certificate disclosing jurisdiction. In support of the motion, counsel say that the plaintiff in error complains only of the court's action in refusing to enforce its lien, and that this involves no amount or value in money. On the other hand, counsel for plaintiff in error strongly insists that the amount involved in this controversy is the amount of the judgment which the plaintiff in error claims to be a lien upon the land, and that the issue between the parties is as to whether the plaintiff in error is entitled to such a lien. The last proposition appears to be correct, and the motion to dismiss is overruled.

We think the note above set out is negotiable, and that plaintiff in error is entitled to judgment foreclosing its lien. In Lyon v. Martin, 31 Kan. 411, 2 Pac. 790, it was held that a note containing a waiver of all relief from valuation, appraisement, stay, exemption, and homestead laws was negotiable. In that case the court quoted the following from 1 Daniel, Neg. Inst. § 1: "The principle is becoming established that if the note is in itself certain and perfect, without conditions, and there is merely superadded the provision or declaration that the payee or holder may confess judgment for the maker, or that certain remedies are granted or rights waived in respect to its collection, then the negotiability of the paper is not destroyed." In the note before us is a provision to the effect that the payee does not, by accepting the note, waive its right to a lien upon the real estate concerned. It is expressly provided by law that, where a promissory note has been given for the amount claimed under the lien, an action for foreclosure to enforce such lien may be brought within one year after the maturity of the note. The statement in the note regarding the lien did not add to or take from the rights of the payee in respect thereto. The note being negotiable, the action was commenced within a year from the maturity thereof, and the plaintiff in error was and is entitled to a judgment enforcing its lien. The judgment of the district court is reversed, and the case remanded for further proceedings in accordance with the foregoing views. All the judges concurring.

(33 Or. 239)

HERMANN et al. v. HUTCHESON.1 (Supreme Court of Oregon. June 21, 1898.) NOTICE OF APPEAL-SERVICE-CERTIFICATE OF CONSTABLE.

1. A certificate of a constable that he served A notice of appeal "within the county of Coos and state of Oregon" is insufficient, as it does not state that it was served in the constable's own precinct.

2. Where a constable certifies that he served a notice of appeal from a justice court "within

1 Rehearing denied.

WOLVERTON, J. This action was commenced in the justice's court for district No. 5, in Coos County, Ore.; and, judgment having been entered for plaintiffs, the defendant attempted to appeal to the circuit court. The notice of appeal was served by M. R. Lee, constable of such precinct, who certified that he served the same "within the county of Coos and state of Oregon." The plaintiffs moved in the circuit court to dismiss the appeal for want of proof of service of notice thereof. The motion was allowed, and a judgment of dismissal entered, from which the defendant appeals to this court.

He

The defendant insists that the judgment of the circuit court should be reversed, because the motion to dismiss the appeal from the justice's court does not point out or specify with sufficient definiteness the defect of service of proof thereof upon which the plaintiffs relied for the dismissal, and for that reason it should have been disregarded. also contends that the proof of service is itself quite sufficient. It must be conceded that the objection to the constable's return is technical in its nature; and this, under the law applicable to such cases, subjects the party who would turn it to his advantage to the observance of technical rules. In passing upon a motion of like character, Mr. Chief Justice Thayer says: "Counsel are required to specify definitely and with certainty the point of irregularity complained of." Bilyeu v. Smith, 18 Or. 335, 22 Pac. 1073. To constitute a good service of a notice of this kind, the officer making it is bound to the observance of several conditions the due performance of all of which he is required to signify by his return. Now, if he has omitted any one of these, it would constitute an irregularity in the service, to say the least, and would possibly render it void in toto. The rule alluded to requires that the party objecting to the service or return shall put his finger upon the condition the nonobservance of which he relies upon to show the service insufficient or nugatory. The objection in the case at bar "that there is no proof of service, * required by law," was as general as it well could be. Such a motion gives no definite notice to the

as

opposing party of the specific defect relied upon, and no opportunity to meet the objection until the fault is pointed out at the argument. It often happens that the defect may be cured by amendment, which the courts are always liberal in allowing in furtherance of justice; and it needs but a suggestion at the proper time, and the objection would be speedily obviated.

This court being powerless to permit such amendment, the necessity for calling attention opportunely to the specific defect by the motion to dismiss is quite apparent. The specific objection to the present return, when disclosed, was found to be that it did not show that service was made in the constable's own precinct; but the motion having failed to suggest it necessitated a technical inspection of the whole return for the discovery of the alleged defect. It was but a small matter, and the plaintiffs should have pointed it out if it was their purpose to avail themselves of the objection. Brown v. Goodyear (Neb.) 45 N. W. 618; Freeman v. Burks (Neb.) 20 N. W. 207. The return as it stands is insufficient, under Sloper v. Carey, 9 Or. 511. But, the motion to dismiss the appeal from the justice's court being also insufficient, the judgment of the court below will be reversed, and the cause remanded for such further proceedings as may seem proper.

(33 Or. 221)

HAYDEN et al. v. BROWN et al. (Supreme Court of Oregon. June 20, 1898.) DEED OF MINING CLAIM SUFFICIENCY OF DESCRIPTION-CONSTRUCTION-TRESPASS

-AGREED BOUNDARY.

1. A deed of a mining claim described it as "commencing at the discovery shaft on said claim, known as 'Mountain Lily Ledge,' situated in sections 2 and 35, township 36 south, of range 3, west of the Willamette meridian,

* * running thence 1 point east of south 500 ft., thence from said shaft 1 point west of north 1,000 ft.; being 600 ft. in width,-300 ft. on each side of the above-described line." Held, that since a "point" was a division of a mariner's compass equal to 11° 15', this description was sufficiently definite to enable a surveyor to locate the premises described, and therefore sufficient.

2. When, by omitting one part of a false or impossible description in a deed, a perfect description remains, the false part should be rejected, and the instrument upheld.

3. Evidence that defendants have mined within the boundaries of plaintiff's claim without authority or right is suflicient to show a trespass.

4. Where an arbitrator's award as to the boundary of a mining claim fails to disclose where the boundaries were located by the arbitrators, it is not sufficient to show an agreed boundary.

Appeal from circuit court, Jackson county; H. K. Hanna, Judge.

Suit by D. M. Hayden and another against Jordan Brown and another to enjoin an alleged trespass. From a decree in favor of defendants, plaintiffs appeal. Reversed.

This is a suit to enjoin an alleged trespass. The plaintiffs allege: That they are the owners of and in possession, and entitled to the possession, of a mining claim to Jacksor county, described as follows: "Commencing at the discovery shaft on the said claim, known as the 'Mountain Lily Ledge,' situated in sections two and thirty-five, township thirty-six south, of range three west of the Willamette meridian, on Paddy Hill, in the Centennial mining district, running thence one point east of south five hundred feet, thence from said shaft one point west of north one thousand feet; being six hundred feet in width,-three hundred feet on each side of the above-described line." That said defendants have heretofore gone upon said mining claim, and extracted therefrom gold and gold-bearing rock and dirt of great value, the actual value thereof being unknown to plaintiffs; and that they threaten to so trespass upon said mining claim, and extract gold and gold-bearing rock and dirt therefrom. That plaintiffs verily believe they will continue so to do, unless restrained by the court, to plaintiffs' great and irreparable damage and injury. That plaintiffs have no plain, speedy, or adequate remedy at law, etc. The answer specifically denies each allegation of the complaint, except plaintiffs' ownership, possession, and right of possession, and the cause, being at issue, was referred, and the testimony taken, from which the court found "that the allegations of the complaint charging defendants with trespassing upon the mining claim described therein have not been sustained, and that there is no evidence showing such trespass," and dismissed the suit, from which decree plaintiffs appeal.

A. S. Hammond, for appellants. Samuel Stanley Pentz, for respondents.

MOORE, C. J. (after stating the facts). Counsel for plaintiffs contend that the decree complained of is based upon the false assumption that the description of the mining claim is too indefinite and uncertain for identification, and that, if it does describe any claim, the boundaries thereof would not include the land upon which the defendants are working; while counsel for the defendants insist that the description locates the claim in two sections four miles apart, thus showing that it is more than 1,500 feet in length, and therefore not a legal claim. The evidence tends to show that the Mountain Lily ledge was located prior to the Ida Bell mining claim, which is owned by the defendants, and either adjoins or intersects plaintiffs' claim. It also appears that the Mountain Lily ledge is distinctly marked on the ground by stakes, stones, or marked trees placed or growing at each corner of the claim; and at the center of each of the end lines, and between these monuments the exterior lines of the claim are blazed on the trees standing thereon, and that the discov.

ery shaft is situated 6 chains and 43 links west and 5 chains and 10 links south of the corner to sections 1, 2, 35, and 36 on the line between townships 36 and 37 south, of range 3 west of the Willamette meridian. It is the discovery of a vein of lode within the limits of a mining claim that renders the location thereof effectual (Rev. St. U. S. § 2330; Gleeson v. Mining Co., 13 Nev. 442); but, no issue having been raised upon this question, plaintiffs were under no obligation to prove the fact, notwithstanding which the evidence tends to show that a mineral lode was found in the discovery shaft. The pleadings also admit that plaintiffs are the owners of, and in possession, and entitled to the possession, of the premises described in the complaint, and, such being the case, the important questions presented by this appeal are whether the mining claim in question is so definitely and certainly described as to enable a competent surveyor, with the plead ing before him, to locate the premises by the description therein, and the aid of extrinsic evidence; and, if so, have the defendants trespassed thereon? The testimony of Peter Applegate, a mineral surveyor of much experience, shows that a mariner's compass is divided into 32 equal parts called "points," each of which is 11° 15', and that a "point," when used to indicate a course, though not ordinarily adopted in land surveys, is as definite and certain as though the number of degrees and minutes were given. That, running the center line one point east of south and one point west of north from the discovery shaft means a line running south, 11° 15′ east, and north, 11° 15' west, from the shaft. We think there can be no reasonable ground for controversy on this question, and that the course, as given in the complaint, when read in the light of this testimony, renders the identification of the center line of the mining claim certain. So, too, the description of the claim as being situated sections 2 and 35 in township 36 south, of range 3 west, etc., shows that the claim is more than 4 miles in length; and, as but 1,500 feet in length can be embraced in a mineral location, it is evident that one or both of these sections must be rejected from the description. When, by omitting one part of the description in a written instrument which is false or impossible, a perfect description remains, the false part should be rejected, and the instrument upheld as effectual to carry out the intention of the parties to it. Anderson v. Baughman, 7 Mich. 69. "A grant," says Mr. Justice Wright in Seaman v. Hogeboom, 21 Barb. 398, "is not to be frustrated altogether, or the intention of the parties rendered less certain, by resorting in the construction of it to a mistaken and uncertain circumstance, if there be that in the description which can be sufficiently ascertained to render the intention entirely manifest, and preserve the grant." Invoking the rules here announced, we think

the description in the complaint, as explained by the evidence, sufficient to enable a competent surveyor to locate the boundary of the said Mountain Lily ledge claim; and hence the complaint is sufficient in this particular. Lock Co. v. Gordon, 6 Or. 175; House v. Jackson, 24 Or. 89, 32 Pac. 1027.

The evidence also tends to show that the defendants have been mining within the boundary marked by said monuments, and about 80 feet west of the east line of plaintiffs' said claim, and hence have trespassed upon their premises. Some evidence of an arbitration between the former proprietors of the Mountain Lily ledge and the Ida Bell claim was introduced at the trial, tending to show that a boundary line had been agreed upon by those to whom the matter was submitted, but there was no allegation of such arbitration, and hence the evidence thereof was immaterial (Morse, Arb. 584); but, if such evidence were deemed competent, an inspection of the award, which is made a part of the transcript, fails to disclose where the boundaries were located by the arbitrators. It follows that the decree of the court below must be reversed, and one entered here perpetually enjoining defendants, their agents, etc., from trespassing upon or removing the gold, gold-bearing rock or dirt from said premises.

1. A vendor who fully communicates all the facts within his knowledge concerning his title to the land to the vendee, and informs him that he has no patent to a 40-acre tract included, though the final proof has been made and accepted and the final certificate issued, is not liable on his representation that he has a perfect title, since it is merely an opinion based on the facts stated to vendee.

2. In the absence of fraud, an executed sale of real estate will not be rescinded for failure of title, but the purchaser must look for protection to the covenants of the deed.

3. An adverse, unbroken, and open possession of public land, claiming exclusive title thereto as a homestead, for more than 10 years, except as against the United States, vests a perfect title in the occupant, as against one who had obtained a patent before such occupancy.

Appeal from circuit court, Douglas county; J. C. Fullerton, Judge.

Suit by R. A. Fellows against S. D. Evans. From a decree for defendant, complainant appeals. Affirmed.

C. A. Sehlbrede, for appellant. W. R. Willis, for respondent.

BEAN, J. This is a suit to rescind an executed sale of land alleged to have been brought about by fraud, to compel a return of the purchase money, to recover $450 for improvements placed on the land by the plaintiff, and $500 as damages on account

of such fraud. The facts are that on October 12, 1889, the plaintiff purchased of defendant 240 acres of land in Douglas county, for $2,300, and received a deed therefor containing the usual covenants of warranty, and immediately entered into and has ever since remained in the quiet and uninterrupted possession thereof; that upon learning, in the spring of 1894, of a defect in the record title to 40 acres of the land, he offered to reconvey the property, and, without being ousted or disturbed in his possession, demanded the return of the purchase money, and a rescission of the sale, which being refused, he brought this suit, and, failing in the court below, appeals.

The gist of his contention is that the defendant falsely and fraudulently represented to him that the title to the land was perfect, when, in fact, he had no title whatever to 40 acres thereof. But in this position he is not, in our opinion, supported by the testimony. There is not, as we read the record, a particle of evidence even tending to show that there was any misrepresentation or concealment by the defendant as to the title. All the facts within his knowledge were fully communicated to the plaintiff prior to the purchase, and, while he may have said the title was perfect, it was but an expression of opinion based on such facts. The defect in the title arises out of the fact that at the time of the sale the patent to a 40-acre tract, settled upon by the defendant's grantor, in 1879 as a homestead, had not been issued, although the final proof had been made and accepted, and final certificate issued. These facts were explained to the plaintiff, and the title was supposed by all parties to be good, and that the patent would issue in due course of business. But in April, 1894, the plaintiff having contracted to sell the land to a purchaser who demanded an abstract of the title, it was discovered for the first time that the 40-acre tract had been patented by mistake, as subsequently claimed by the land department, to the Coos Bay Military Wagon-Road Company four years before it was settled upon by the homestead claimant, and it is for this reason that plaintiff seeks to rescind the sale and recover his purchase money. But this defect can, at most, amount to nothing more than a failure of title; and the law is well settled that, in the absence of fraud, an executed sale of real estate will not be rescinded for that cause, but in such case the purchaser must look for protection to the covenants of the deed. Earle v. De Witt, 6 Allen, 520; Slocum v. Bracy (Minn.) 56 N. W. 826; 2 Suth. Dam. p. 253. In this view, plaintiff is not entitled to the relief demanded. But, in addition, the evidence shows and the court below found that the defendant and his grantors had been in the adverse possession of the disputed tract of land, claiming title thereto as against all the world except the United States, for more than 10 years prior

to such sale, which was sufficient to vest in him a perfect title as against the wagonroad company. Parker v. Metzger, 12 Or. 407, 413, 7 Pac. 518. And, as he had the title of the government, it would seem that he was not even mistaken in asserting, at the time of the sale, that his title was perfect. So, however we may regard this case, there is no equity in the bill, and the decree of the court below must be affirmed.

(4 Wyo. 115)

MCGINNIS v. STATE. (Supreme Court of Wyoming. Feb. 9, 1893.) WITNESS-COMPETENCY.

At common law, a co-defendant indicted jointly with, but tried separately from, defendant, may testify in his behalf.

Motion for rehearing. Denied.

For former opinion, see 31 Pac. 978.

GROESBECK, C. J. The attorney general has filed a brief on a motion for a rehearing in which he states that "at common law it is a well-understood doctrine that a co-defendant cannot be used as a witness for the pris oner on trial, but might be used as a witness for the state"; and, as the common law was adopted by our statute, the same is still in force, and can only be repealed by direct legislative enactment; and hence the witness John McGinnis, held to be a competent witness for the plaintiff in error by this court, was incompetent to testify for his codefendant on the separate trial of the latter, jointly accused with him. As to the competency of the witness under the common law, the decisions are not harmonious. They are cited in Rap. Wit. § 43, and referred to in the following language: "The rule is pretty well settled at the common law that, where two or more persons were separately indicted for an offense in which all were impli cated, either of them could be a witness for either of the others, on his separate trial, and he might testify for the prosecution in such a case. In the case of the separate trial of two or more persons jointly indicted, the authorities are not harmonious, some of them holding one of them competent for the prosecution, others permitting him to tes- | tify for his co-defendant, and still others denying a defendant so situated the right to testify at all upon the separate trial of one united with him in the same indictment, unless he had been previously tried and acquitted." From this review, it is not clear what the precise rule of the common law would be in the case at bar, but the great weight of reasoning is with those courts that hold that the co-defendant may testify for the defendant on trial, even when jointly indicted with him, as the separate trials have the same effect as if the parties were separately indicted. The early text writers on evidence, including Greenleaf and Starkie, incline to this position. This view is