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Moyer placer claim, a placer patent, or patent of and for a placer mining claim, containing the following restrictions and exceptions:

"First. That the grant hereby made is restricted in its exterior limits to the boundaries of the said lot No. 281, as herein before described, and to any veins or lodes of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, which may hereafter be discovered within said limits, and situate, and not claimed or known to exist, at the date hereof.

"Second. That should any vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, be claimed or known to exist within the above-described premises at the date hereof, the same is expressly excepted and excluded from these presents."

The amended answer also alleged "that at the time of the location of said placer claim, and the survey thereof, and at the time of the application for said patent, and at the time of the entry of said land thereunder, and at the time and date of the issuing and granting of said patent, a lode, vein, or deposit of mineral ore in rock in place, carrying carbonates of lead and silver, and of great value, was known to exist, and was claimed to exist, within the boundaries and underneath the surface of said Wells & Moyer placer claim No. 281; and that the fact that said vein was claimed to exist, and did exist as aforesaid within said premises, was known to the patentees of said claim at all the times herein before mentioned;" and "that the said application for said patent by said patentees and grantors of said plaintiff did not include any application whatever for a patent of or to said lode or vein within its boundaries aforesaid. Wherefore these defendants aver that the said failure to include said vein or lode in said application amounted to a conclusive declaration by said patentees that they made no claim whatever to said lode or vein, or any part thereof, and that the same was expressly excepted and excluded from, and did not pass with, the grant of said premises in and by said patent for said premises."

The amended answer further alleged that on the first of January, 1883, the defendants, then and now being citizens of the United States, went upon the premises last described in the complaint, and sunk a shaft thereon, which uncovered and exposed said lode, vein, or deposit; and thereupon proceeded to and did locate the same as a lode claim, by erecting a notice containing the name of the lode, the date of the location, and their own names as locators, and marked the surface boundaries by posts; and afterwards caused to be filed a location certificate containing the name of the lode, the names of the locators, the date of the location, the number of feet in length claimed on each side of the center of the discovery shaft, and the general course and direction of said claim as near as might be. "Wherefore the defendants claim the right to occupy and possess the said premises in full accordance with and by virtue of a full compliance with the requirements of the laws of the United States, and of the state of Colorado, the

said vein, lode, or deposit being a part and parcel of the unappropriated public mineral domain of the United States; and that the acts and doings of the defendants as hereinbefore set forth constitute the said supposed trespass complained of by the plaintiff.”

The plaintiff demurred to the amended answer, because neither of its allegations set forth any defense; because it showed that neither the defendants nor their grantors had duly discovered, located, or recorded any lode or vein such as is described in section 2320 of the Revised Statutes, at or before the time of the application for the placer patent, but that the defendants located their lode claim within the boundaries of the patented ground after the issuing of the placer patent; and because the applicants for the placer patent were not re quired to apply for the vein or lode claim, unless it had been duly discovered, located, and recorded, and was owned by the applicants for the placer patent at the time of applying for the patent. The circuit court sustained the demurrer to the amended answer, and gave judgment for the plaintiff, and the defendants sued out this writ of

error.

The question in this case arises under section 2333 of the Revised Statutes, the different provisions of which will be more clearly distinguished from each other, without affecting the meaning of either, by separating them by periods, as follows:

"Sec. 2333. Where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings. And where a vein or lode, such as is described in section twenty-three hundred and twenty, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim. But where the existence of the vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof."

The section referred to in the third subdivision of this section is as follows:

"Sec. 2320. Mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining claim located after the tenth day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall ex

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tend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen hundreed and seventy-two, render such limitation necessary. The end lines of each claim shall be parallel to each other."

The counsel of both parties, in their arguments, have discussed the question whether a vein or lode included within the boundaries of a placer claim, the application for which does not include an application for the vein or lode claim, is excepted out of the patent for the placer claim, if at the time of the application it is known to the applicant to exist, but no claim to the vein or lode has been located.

In accordance with the view expressed by the circuit court in the opinion delivered on sustaining the demurrer to the original answer, and reported in 16 Fed. Rep. 829, the defendants in error maintain that by virtue of section 2333, taken in connection with section 2320 therein referred to, a vein or lode within the boundaries of a placer claim is not excepted from a patent for the placer claim, unless a claim for the vein or lode had previously been located according to section 2320.

The plaintiffs in error contend that if the existence of the vein or lode is known to the applicant for a placer claim, he must include, in his application for the placer claim, an application for the vein or lode claim, and pay for the latter at the higher rate, in order to obtain any title to it.

The circuit court treated the question of the construction of this statute as one of much difficulty and of some doubt, and as affecting numerous cases. This court should not express an opinion upon it, unless its determination is necessarily involved in the adjudication of the case at bar. We are of opinion that the question is not presented for adjudication upon the record before us. The amended answer alleges that at the times of the location and survey of, entry upon, and application and patent for, the placer claim, the lode or vein was known to exist, and was claimed to exist, within the bounduries and underneath the surface of the placer claim, and the fact that the vein was claimed to exist and did exist within the premises was known to the patentees of that claim. The phrase "claimed to exist," as used in the amended answer, apparently intending to follow the form of patent therein set forth, is not indeed a statement that a claim for the vein or lode had been in due form made and located, but only that it was contended that the vein or lode existed. But the further allegation in the answer, that the vein was known by the patentees to exist at the times mentioned, is an allegation, in the very words of the statute itself, of the fact which the statute declares shall be conclusive against any right of possession of the vein or lode claim in a claimant of the placer claim only.

Whether the words "known to exist," as used in the statute, are

satisfied by actual knowledge of the applicant, or imply also a located claim for the vein or lode, the same meaning must be attributed to them in the amended answer; and the fact signified by the statute is well pleaded; for, by the elementary rules of pleading, facts may be pleaded according to their legal effect, without setting forth the particulars that lead to it; and necessary circumstances implied by law need not be expressed in the plea. Bac. Abr. "Pleas & Pleading, I," 7; Co. Litt. 3036. The fact that the vein or lode was known to exist as contemplated by the statute being well pleaded, although in general terms, is admitted by the demurrer. Eaton v. Southby, Willes, 131; Postmaster Gen. v. Ustick, 4 Wash. C. C. 347; Christmas v. Russell, 5 Wall. 290. In order to present the issue discussed in argument, the plaintiff should either have traversed the allegation, or have replied that no claim for the vein or lode had been located at the time in question. We find nothing in the statutes of Colorado which changes the rules of the common law in this respect. See Colo. Code Civil Proc. 1877, §§ 48, 49, 52, 61.

The judgment must therefore be reversed, and the case remanded to the circuit court, with liberty to either party to move in that court to amend the pleadings.

Appeal from the Circuit Court of the United States for the District of Kentucky.

Wm. Stone Abert, for appellant.

W. O. Dodd, for appellee.

WAITE, C. J. If all that is charged in this bill were true, there could be no doubt of the right of the appellant to the relief she asks, as well on account of the actual as constructive fraud of the appellee. But the answer, which is under oath, is as emphatic and direct in its denials as the bill is in its charges. There is no disputed question of law. The only controversy is as to the facts. The testimony is voluminous, and it would serve no useful purpose to discuss it in an opinion. It is sufficient to say that we are entirely satisfied with the conclusion reached by the circuit court.

Decree affirmed.

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(109 U. S. 618)

SWEENEY v. UNITED STATES.

(December 17, 1883.)

CONTRACT-PERFORMANCE-APPROVAL BY ARMY OFFICER.

Appeal from the Court of Claims.

T. W. Bartley and M. I. Southard, for appellant.

Asst. Atty. Gen. Maury, for appellee.

WAITE, C. J. This judgment is affirmed on the authority of Kihlberg v. U. S. 97 U. S. 398. It was provided in the contract that pay. ment for the wall was not to be made until some officer of the army, civil engineer, or other agent, to be designated by the United States, had certified, after inspection, "that it was in all respects as contracted for." The officer of the army designated under this authority expressly refused to give the necessary certificate, on the ground that neither the material nor the workmanship were such as the contract required. The court below found that there was neither fraud nor such gross mistake as would necessarily imply bad faith, nor any failure to exercise an honest judgment on the part of the officer in making his inspections. The appellant was notified of the defective character of the material and that it would not be accepted before he put it into the wall, and after he had completed his work the wall which he constructed was taken down by order of the quartermastergeneral, and a new one made of other material built in its place. Judgment affirmed.

(109 U. S. 627)

SALAMANCA TOWNSHIP, Cherokee County, State of Kansas, v. WILSON.

(December 17, 1883.)

ACTION AGAINST TOWNSHIP-SERVICE ON TOWNSHIP TREASURER-REMOVAL FROM ONE TOWNSHIP TO ANOTHER.

The removal of a township treasurer from one township "across the line" into another township will not necessarily vacate the office; and, in an action against the township, service of summons on the duly elected and qualified treasurer thereof, after such removal, may be a good and sufficient service.

In Error to the Circuit Court of the United States for the District of Kansas.

Wallace Pratt, for plaintiff in error.

Jas. S. Botsford, and Jos. Shippen, for defendant in error. WAITE, C. J. In this case the judges holding the circuit court have certified a difference of opinion between them upon the hearing of a motion to set aside the service of summons on the plaintiff