Allen v. Merchants' Bank, 22 Wend. 215, 34 Am. Dec. 289; Bank of Lindsborg v. Ober, 31 Kan. 599, 3 Pac. 324.

The distinction between the negligence of the bank with respect to its duties as a collecting agent in the presentment and demand of payment of paper in its hands for collection, and the subsequent fault or negligence of the notary in making protest and giving notice of dishonor, is clearly pointed out in Commercial Bank v. Varnum, 49 N. Y. 269; and in American Exp. Co. v. Haire, 21 Ind. 4, 83 Am. Dec. 334.

The bank could not use the notary to present for collection and reap the benefit of the same if the paper be paid, and escape liability if it be not paid and protested too late. Thompson v. Bank of State, 3 Hill, L. 77, 30 Am. Dec. 354.

The bank was liable for the fault of the notary.

Ayrault v. Pacific Bank, 47 N. Y. 573, 7 Am. Rep. 489; Allen v. Merchants' Bank, 22 Wend. 215, 34 Am. Dec. 289; Gerhardt v. Boatman's Sav. Inst. 38 Mo. 60, 90 Am. Dec. 407; Thompson v. Bank of the State, 3 Hill, L. 77, 30 Am. Dec. 354; Davey v. Jones, 42 N. J. L. 28, 36 Am. Rep. 505; Bank of Lindsborg v. Ober, 31 Kan. 599, 3 Pac. 324.

Messrs. Davis, Lyon, & Gates, for respondent:

Delay in presentment and notice is excused when the delay could not be avoided by the exercise of reasonable care and diligence.

Comp. Laws, § 4512.

The ordinary definition of culpable negligence is, "the want of care, caution, attention, diligence, skill, or discretion in the performance of an act by one having no positive intention to injure the person complaining thereof."

Shearm. & Redf. Neg. § 2; Comp. Laws, §

6962.

The only elements in this definition that are applicable to the facts in this case are want of skill or discretion.

The want of skill or discretion to correctly decide a doubtful proposition of law, which required a decision of the supreme court to settle, can hardly be called culpable negligence, so as to make the notary or the bank liable.

Mechanics' Bank v. Merchants' Bank, 6 Met. 13: Shearm. & Redf. Neg. § 239, note 1. The fact that the notary was in the employ of the bank as bookkeeper does not make the bank responsible for his official acts as notary.

First Nat. Bank v. German Bank, 107 Iowa, 543, 44 L. R. A. 133, 78 N. W. 195; May v. Jones, 88 Ga. 308, 15 L. R. A. 639, 14 S. E. 552.

The bank could not protest the note. It was not within the scope of its charter. It could only place the note in the hands of a notary for that purpose.

The general competency of the notary, or the seasonableness with which the note was placed in his hands, is not challenged. No negligence in this respect can be predicated of the bank.

3 Am. & Eng. Enc. Law, 2d ed. p. 808, and note 3; Britton v. Niccolls, 104 U. S. 757, 26 L. ed. 918; Baldwin v. Bank of Louisiana, 1 La. Ann. 13, 45 Am. Dec. 72; Dorchester & M. Bank v. New England Bank, 1 | Cush. 177; Bowling v. Arthur, 34 Miss. 41; Stacy v. Dane County Bank, 12 Wis. 629; Plymouth County Bank v. Gilman, 9 S. D. 278, 68 N. W. 735.

Haney, J., delivered the opinion of the court:

Plaintiffs owned a note payable, according to its terms, on Sunday, December 1, 1895. Shortly before that date it was left at defendant's bank, and was protested for nonpayment on Thursday, December 5. In an action against an indorser this court held that it should have been presented and protested one day earlier. Morris v. Bailey, 10 S. D. 507, 74 N. W. 443. Plaintiffs now charge defendant with having negligently omitted to make presentment and protest in time, and seek to recover the balance due upon the note. The court below directed a verdict for defendant, and denied an application for a new trial, and plaintiffs appealed.

It is alleged in the complaint "that shortly prior to the 1st day of December, 1895, and a few days before the maturity of said note, these plaintiffs delivered said note to the defendant bank for collection, with instruction to protest said note in case of nonpayment of same at maturity, and to give all necessary and proper notice to charge the indorser on said note." This allegation is supported by the positive testimony of one of the plaintiff's. It is denied by the answer, and defendant offered evidence tending to prove, that its bookkeeper, a notary public, and not itself, was employed by plaintiffs to make the presentment and protest. It cannot be presumed that the verdict was directed upon this issue as the evidence touching it is, to say the least, conflicting, and the cause should have been submitted to the jury, unless for other reasons the plaintiffs could not recover. Assuming that defendant, and not its bookkeeper, was employed to take all necessary steps to charge the indorser; that, by reason of its failure to make demand and protest at the proper time, the indorser was released; and that, in quence of the defendant's mistake, plaintiff's have been unable to collect the balance due upon their note,-the question arises whether, under all the circumstances disclosed by the evidence, the defendant should respond in damages for the loss thus occasioned. is evident that the officers of the bank and its employees acted in good faith under an honest mistake as to the law applicable to such notes in this state. It appears that the learned circuit court, in an action against an indorser, decided that the course taken by defendant was strictly in accordance with law; and the opinion rendered by this court conclusively shows that the question of law involved was one of serious doubt and difficulty, owing to the condition of the statutes in this state relating to holidays and days of

conse

It

forfeited.

On rehearing.

5. An appeal from a judgment and from an order denying a motion for a new trial will not be dismissed because the order had not been entered when the appeal was taken, but the record will be reviewed as if no motion had been made.

6. An appeal from a judgment in an action brought to establish an interest in a mining claim will not be dismissed because, since the appeal was taken, defendants have parted with their interest in the claim to one who has received a patent from the government, if notice of the pend

ency of the action was filed in the proper county.

(December 21, 1898.)

PPEAL by plaintiff from a judgment of the Circuit Court for Pennington County in favor of defendants in an action brought to establish an interest in a mining claim. Reversed.

The facts are stated in the opinion.

Messrs. Charles W. Brown and McLaughlin & McLaughlin for appellant. Messrs. Fowler & Whitfield and Schrader & Lewis, for respondents:

This is not an action to declare a trust;

ant, hold the claim subject to a trust in favor of the latter. Brundy v. Mayfield, 15 Mont. 201, 38 Pac. 1067.

The purchase by part of the cotenants of an outstanding title to the claim inures to the benefit of another cotenant. Franklin Min. Co. V. O'Brien, 22 Colo. 129, 43 Pac. 1016.

A purchase, by a cotenant of a mining claim, of a title initiated by relocation, inures to the benefit of his co-owners in the original location. Mills v. Hart, 24 Colo. 505, 52 Pac. 680.

Hunt v. Patchin, 13 Sawy. 304, 35 Fed. Rep. $16, held that the relocation of a mining claim by one of several cotenants was subject to a trust in favor of the other cotenants, but it appears in this case that the owners had deeided that, instead of performing the representation work, they should forfeit the claim and have it immediately relocated in the name of such cotenant; and the court held that it was apparent, from the circumstances, that it was the understanding that the claim should be relocated for the benefit of all.

This fact makes the case a stronger one for the declaration of a trust than the principal case, and therefore cannot be considered an exact precedent for the latter.

Where a person has posted a location notice in the name of himself and third persons, in pursuance of a custom providing that any person who has discovered a vein or lode, and desires to locate a mining claim on it for himself and others, may do so by putting up a notice with his own name and the names of those whom he may choose to associate with him appended thereto, he cannot thereafter cut off the right of such persons by taking down the notice, and putting up a new one, omitting their names. Morton v. Solambo Copper Min. Co. 26 Cal. 527.

Thompson v. Spray, 72 Cal. 528, 14 Pac. 182, held that the rights of persons whose names were on the first notice of location could not be affected by their omission from a second notice, styled an amended notice, signed by some of the persons whose names were signed to the first notice, and by other persons whose names were not signed to that notice.

gal title in the plaintiff. He alleges a legal title in the complaint. The Tin Bar claims, upon the allegations of the complaint, are abandoned. The complaint upon the facts

should be dismissed.

Von Drachenfels v. Doolittle, 77 Cal. 295, 19 Pac. 518; McDonald v. McCoy, 121 Cal. 55, 53 Pac. 426; Anderson v. Chilson, 8 S. D. 64, 65 N. W. 435; Northrop v. Andrews, 39 Kan. 571, 18 Pac. 510; Harrigan v. Mowry, 84 Cal. 456, 22 Pac. 658, 24 Pac. 48; Brady v. Husby, 21 Nev. 453, 33 Pac. 801. is required to prove, and will be precluded Each party must plead every fact which he from proving any fact not alleged.

Green v. Palmer, 15 Cal. 412, 76 Am. Dec. 492; Hicks v. Murray, 43 Cal. 515; Cowenhoven v. Brooklyn, 38 Barb. 9; Freeman v. Fulton F. Ins. Co. 38 Barb. 247; Barnes v. Quigley, 59 N. Y. 265; Peck v. Root, 5 Hun, 547; Pom. Rem. & Rem. Rights, §§ 95, 679, 706; Commercial Bank v. Jackson, 9 S. D. 606, 70 N. W. 846.

It is only the public lands of the United States that are subject to appropriation and purchase under the law of Congress of May 10, 1872, and acts amendatory thereof.

The land covered by the Tin Bar No. 1 and

But where a claim has lapsed by reason of failure to renew the record of location notice, and subsequently a renewal is made by a stranger to the original notice acting for himself and certain associates, some of whom were on the original notice, it does not inure to the benefit of those whose names were on the original notice but not on the renewal notice. Strang v. Ryan, 46 Cal. 34, 1 Morrison Min. Rep. 48.

The last three cases, it will be observed, are not, like the principal case, cases of relocation after failure to do the annual assessment work.

l'age v. Summers, 70 Cal. 121, 12 Pac. 120, 15 Morrison Min. Rep. 617, held that where two of the parties to a contract for the purpose of prospecting for and locating mines, located a claim, the notice of location naming all the parties as locators, and subsequently, after the dissolution and termination of the agreement by mutual consent, tore down the location notice, and substituted another notice, excluding the third party as a locator, their location was not subject to a trust in the latter's favor. The court said that there was no finding of the concealment of any fact from bim, and that it must be presumed that, with full knowledge of all the existing conditions, the parties terminated the agreement, and that no duty remained with any of them to perfect the location.

It will be observed that the fiduciary relations existing between the parties in the foregoing case had been dissolved by the express termination of the agreement, thus putting an end to the cotenancy, whereas, in the principal case, the only thing that could have been claimed to put an end to the cotenancy was the failure to do the assessment work and the consequent subjection of the claim to relocation; but, as pointed out in the principal case, a claim is not forfeited under the original location until it is relocated.

The existence of a fiduciary relation with respect to the claim, between one who relocates it after the failure to do the annual assessment work and some other person, does not seem to invalidate the relocation, but, in the view

No. 2 claims was not, at the date of the attempted location thereof,-to wit, January 25, 1888,--such land.

Deffeback v. Hawke, 115 U. S. 392, 29 L. ed. 423, 6 Sup. Ct. Rep. 95; Davis v. Weibbold, 139 U. S. 507, 35 L. ed. 238, 11 Sup. Ct. Rep. 628.

portion of the Tin Bar No. 1 situate outside the lines of the Reed placer claim was abandoned, and that portion of each of the Tin Bar claims inside the Reed placer claim M. C. 903 became a part thereof; as to Tin Bar No. 1, it was the loss of the discovery, and thereby the loss of the claim.

Belk v. Meagher, 104 U. S. 279, 26 L. ed. 735; Gwillim v. Donnellan, 115 U. S. 45, 29 L. ed. 348, 6 Sup. Ct. Rep. 1110; Miller v. Girard, 3 Colo. App. 278, 33 Pac. 69; Forbes v. Gracey, 94 U. S. 767, 24 L. ed. 314; Golden Terra Min. Co. v. Smith, 2 Dak. 398, 11

N. W. 98.

The discovery of the Tin Bar No. 1 claim being within the Reed placer, the location of such claim was void, not only against the prior locators of the placer claim, but against all the world.

Belk v. Meagher, 104 U. S. 279, 26 L. ed. 735.

After the entry of the Reed placer, the

of the principal case, and of Hunt v. Patchin, 13 Sawy. 304, 35 Fed. Rep. 816, supra, merely to subject the relocation to a trust. This distinction is made by Saunders v. Mackey, 5 Mont. 523, 6 Pac. 361, which holds that the promise by one cotenant to another to represent the claim and save it from forfeiture did not save the claim from forfeiture or prevent its relocation by the cotenant making the promise, if he failed to do the work. The court says, however, that if the relations between the two cotenants were such as to make the relocator the other's trustee, a proper action would so declare him and protect the other's interest.

The validity of the relocation, rather than the question as to whether the patent would be subject to a trust in favor of the co-owner, seems to have been the point determined by Gold Dirt Lode, 10 C. L. O. 119, Clark's Min. Law Dig. p. 95, which holds that a co-owner of a mining claim, who relocates the same in his own name, may obtain a patent in his own name without going back of the relocation, if the co-owner fails to assert an adverse claim.

Agent.

One who undertakes to procure a purchaser for a mining claim occupies a fiduciary relation to the owners of the claim, and the relocation of the claim by him, while such relation exists, is for the benefit of his principals, subject to their right of election to accept the same. Lockhart v. Rollins, 2 Idaho, 503, 21 Pac. 413.

In Largey v. Bartlett, 18 Mont. 265, 44 Pac. 962 the court held that the attempt of an agent to relocate a claim in the name of his wife, by amending the original notice of location, was null and void, as against his principals. In this case, the agent had been intrusted with the amended notice of location, and changed the name of the locator after the surveyor had left.

Argentine Min. Co. v. Benedict, 18 Utah, 183, 55 Pac. 559, held that the relocation of a claim, by an agent intrusted by the owner with the performance of the representation work, in the name of a corporation, which knew of his re

v. Dahl, 6 Mont. 167, 9 Pac. 892, 132 U. S. 260, 33 L. ed. 324, 10 Sup. Ct. Rep. 74.

Title can be acquired only by compliance with the conditions to be performed subsequent to location.

Strang v. Ryan, 46 Cal. 34: Page v. Summers, 70 Cal. 121, 12 Pac. 120.

Finding of ownership carries with it the whole case. The finding of the court that Fayel, Amsbury, Franklin, and Blair are the

owners is conclusive of the issue on that question.

Daly v. Sorocco, 80 Cal. 367, 22 Pac. 211; Kidder v. Stevens, 60 Cal. 417; Batchelder v. Baker, 79 Cal. 267, 21 Pac. 754; Ybarra v. Sylvany (Colo.) 31 Pac. 1114; Garwood v. Hastings, 38 Cal. 217; San Francisco v. Spring Valley Waterworks, 63 Cal. 529; Hayne, New Trial, §§ 242, 730.

lations to the original locator, was fraudulent and void as to the principal; but in this case the court held that the agent had performed the representation work.

The principle upon which Turner v. Sawyer, 150 U. S. 578, 37 L. ed. 1189, 14 Sup. Ct. Rep. 192, supra, was decided viz., that cotenants stand in a relation of mutual trust and confidence, and that neither will be permitted to act in hostility to the other in reference to the joint estate, seems equally applicable to the case of a relocation by a cotenant if at the time thereof the cotenancy is still subsisting, as to the case of the acquisition of the legal title from the land office, and by analogy would seem to apply also to the case of a relocation by an agent. The principle obviously does not apply as between a grantor and grantee. As already shown, the decision in Alexander v. Sherman (Ariz.) 16 Pac. 45, that a mortgagor of a claim cannot defeat the mortgage by relocating the claim, proceeded upon the theory that the relocation was a fraud. Although it is not so expressly stated, the view of the court apparently was that the fraud consisted of the violation of the trust relation between the parties. G. H. P.

Messrs. W. O. Temple and A. K. Gardner, for respondent, Fayel:

The act of Congress (Rev. Stat. § 2324) extends the privilege of relocating unrepresented mining claims-that is, claims on which the annual labor has not been doneto all persons possessing the requisite qualifications of citizenship, without discrimination or restriction. So far from supporting the cotenant theory, it cannot be reconciled with it.

The statute says the claim or mining location upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made.

Congress has made it lawful for a cotenant, as well as others, to relocate unrepresented ground, and therefore the common law is abrogated so far as there is any conflict. The act of relocation being lawful, there is nothing upon which to predicate a trust.

It is not inconsistent with the dictates of fair dealing that a part owner of an unrepresented claim should relocate it for himself to the exclusion of his cotenants in the old location.

Franklin and Blair were co-owners in the Tin Bar claims as locators; McCarthy's title was derived by mesne conveyances from one Frank Eaton. The cotenancy which existed between appellant and Blair and Franklin was not a matter of choice on the part of Blair and Franklin, but wholly involuntary as to them.

In such cases the arbitrary rule of the common law has been relaxed, because it does not accord with the modern sense of justice. Tenants in common are subject to this mutual obligation, only where their interest acerues under the same instrument, or act of the parties or of the law, or where they have entered into some agreement or understanding with one another; and persons acquiring unconnected interests in the same subject, by distinct purchases, though it may be under the same title, are not bound to a greater protection of one another's interests than would be required between strangers.

Keech v. Sandford, 1 White & T. Lead. Cas. in Fq. 65, note; Frentz v. Klotsch, 28 Wis. 312; Roberts v. Thorn, 25 Tex. 728, 78 Am. Dec. 552; Rippetoe v. Dwyer, 49 Tex. 498: Olney v. Sawyer, 54 Cal. 379; Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497; King v. Rowan, 10 Heisk. 675; Buchanan v. King, 22 Gratt. 414; Smith v. Washington, 11 Mo. App. 519; Alexander v. Sully, 50 Iowa, 192.

A man may relocate, under a new name, his own claim on which he has not done the annual labor required by law.

Warnock v. DeWitt, 11 Utah, 324, 40 Pac. 205; Hunt v. Patchin, 35 Fed. Rep. 816; Saunders v. Mackey, 5 Mont. 523, 6 Pac. 361. One of several tenants in common of an unpatented mining location upon which the annual labor has not been done may relocate the claim in his own name and for his sole benefit, to the exclusion of his associates in the old location.

Strang v. Ryan, 46 Cal. 36; Saunders v. Mackey, 5 Mont. 523, 6 Pac. 361; Phillpotts v. Blasdel, 8 Nev. 61; Mines & Mining Law, 15 Am. & Eng. Enc. Law, 551; Copp, United States Mineral Lands, 300.

Haney, J., delivered the opinion of the court:

This action, brought for the purpose of determining adverse claims to certain mining property, was tried by the court, and resulted in a judgment wherein the claims of plaintiff are adjudged to be invalid. He appeals from such judgment and from an order denying a new trial.

From the findings of the trial court the following facts appear: On September 16, 1882, Jacob F. Reed and William Franklin located a portion of the ground in controversy as the Reed placer mining claim. From the date of location until 1892 Reed and Franklin were in actual, notorious, and peaceable possession of the claim, were acknowledged and reputed to be its owners, and during each year performed the required development work. They applied for patent November 23, 1892. Final entry was made March 13, 1893. There was no application for a lode on the placer site aside from the placer claim. The boundaries of the claim as patented coincide with its boundaries as staked upon the ground at time of location. January 25, 1888, Reed, Franklin, Thomas C. Blair, and Frank Eaton marked the boundaries of Tin Bar No. 1 claim upon the ground with stakes, as required by law, posted a discovery or location notice thereon, and within sixty days thereafter recorded a location certificate, but did no other act of location at that time. The location or discovery notice of this claim was posted inside the boundaries of the Reed placer claim, and the point claimed as discovery on the Tin Bar No. 1 is the same point at which the notice was posted. No labor has been performed or improvement made upon the claim, except about four days' work in 1889 and about four days' work in 1891; such work not exceeding $14 in each of those years. There was no agreement on the part of defendants Blair or Franklin with plaintiff to perform labor or make improvements on Tin Bar No. 1 in 1893 or 1894, and no contractual relation existed between them in regard to such claim when the Holy Terror lode claim was located. January 25, 1888, Blair and Eaton did the same acts of location with respect to Tin Bar No. 2 that were done in respect to Tin Bar No. 1. No labor has been performed, or improvement made, upon Tin Bar No. 2, except about four days' work in 1891, of value not exceeding $14. There was no agreement on the part of defendants Franklin or Blair with plaintiff to perform labor or make improvements upon Tin Bar No. 2 in 1892, 1893, or 1894, and there was no contractual relation existing between them in regard to such claim during those years. Defendant Franklin located the lode claims Holy Terror and Keystone No. 4 on June 28, 1894, and September 20, 1894, respectively, and the law has been com