decree in the case. The appeal was from the interlocutory order. The case still remained in court, and the chancellor had full authority to make any other order that the exigencies of the case demanded. In this condition of things, upon application, and upon terms, he made a new order restraining for a brief time the destruction of the property in controversy. He did not continue the former injunction, but, as he says in terms, exercised a new and original jurisdiction in making the new order; that is not this case. Here the bill is dismissed absolutely, and the case is wholly out of court. There is no suit pending in which any order can be made. It follows that the motion in the suit in equity must be denied.

In the action at law, this court never had jurisdiction to issue an injunction. And it was for this reason that the bill in equity was filed. The court never had the custody of the subject-matter. The supersedeas undoubtedly stays the issue of a writ of restitution and execution for costs. But none has been issued or asked for. The Eureka company are doing nothing whatever by authority, or under, or in pursuance of, the judgment, or of any process issued thereon. It is doing nothing more than it was doing before these actions were commenced, except that it has extended its drifts further into the mine, so as to work the body of the ore which it was seeking by these same means to obtain, prior to the institution of any of these suits. It is simply doing what it was restrained from doing by the injunction issued on the cross-bill while it was in force. It is proceeding under the same claim and authority now, as it was before, nothing more, nothing less. The court has made no order in this case other than to enter judgment for the possession and costs in favor of the Eureka company, and it can make none.

Undoubtedly, if the court had inadvertently, or otherwise, issued an execution after the perfection of the supersedeas, and the plaintiff had been thus wrongfully put in possession, or was about to be so put in possession under the writ, it could, by virtue of its control over its process, have stayed the execution of the writ, or have restored the possession improperly given, had the writ been executed. But nothing of the kind has occurred. Nothing in the custody or control of the court in this action is in any manner affected by the acts of

the Eureka company, and the court is without power to interfere. If there is any power to issue the restraining order asked, it lies with the appellate court. Whether that tribunal can make the order, must be determined by itself. Under its rules, however, upon a proper showing, it can afford a speedy remedy by advancing the cause and bringing it to an early hearing. If deemed a proper case, this would perhaps be the better remedy. While on the one hand the working of the mine might consume the subject-matter of litigation, and leave little for the Richmond company in case of ultimate success, on the other, to restrain the working of the mine adjudged to belong to the Eureka company for the period of three years, the time suggested as likely to be required for the disposition of the case, would be scarcely less calamitous should the decision be affirmed. To those familiar with the subject, it requires no argument to show that it would be extremely disastrous to allow an open mine, with all its vast extent of shafts, drifts, winzes, etc., to fill with water, fall in and become destroyed, and its machinery, hoisting works, mill and mine itself, to be disused for so long a period. Section 1182 of the statutes of Nevada, also relied on by the Richmond company, relates to proceedings in a case pending, over which the court still has control. But this case is ended and gone beyond the reach of this court. The statutory provision, therefore, has no application.

It follows that the motions must be denied, and the order issued restraining the Eureka company from working pending the notion, vacated and dissolved, and it is so ordered.

1. Courts of New York have no jurisdiction of a suit between foreign corporations concerning lands in another State: Cumberland C. & 1. Co. v. Hoffman S. C. Co., 30 Barb. 159.

2. Decree against persons upon whom only constructive service by pub. lication is had, will not affect their mining property beyond the jurisdiction of the court: Harris v. Pullman, 84 Ill. 20; 25 A. R. 416.

3. Justices of the peace have no jurisdiction to try a cause for alleged injury arising from a diversion of water: Hill v. Newman, 4 M. R. 513. Nor for damages for injury to a mining claim: Van Etten v. Jilson, 6 Cal.

19.

4. A suit brought in a court of the State of Nevada by a citizen of California against a citizen of England may be removed into the Circuit Court of the United States under the act of March 3, 1875: Eureka Cons. M. Co. v. Richmond M. Co., 6 Sawyer, 471.

5. Removal of suit supporting adverse claim from State court: Frank Co. v. Larimer Co., 1 M. R. 130; Chambers v. Harrington, 111 U. S. 350. 6. Not sufficient to aver generally that the suit involves the construction of an act of Congress concerning mines: Holland v. Ryan, 17 Fed. 1.

7. Jurisdiction of circuit court after removal of cause to grant leave to file record before day appointed by statute, and to grant provisional relief: Mahoney M. Co. v. Bennett, 4 Saw. 289.

8. Jurisdiction of suits between citizens of different States: Meadow Valley M. Co. v. Dodds, 7 Nev. 143.

9. Jurisdiction of court of equity in cases of disputed possession between tenants in common of real estate: North Penna. Coal Co. v. Snowden, 42 Pa. St. 488; Post TENANT IN COMMON.

10. A mining corporation created by the legislature of Pennsylvania, but doing business in California, can not be sued in the U. S. courts as a citizen of California: Pennsylvania v. Quicksilver Co., 10 Wall. 553.

11. A mining corporation organized in California, but working mines in Nevada, with agents there upon whom process can be served, is a person found in the district within the meaning of the Judiciary Act of 1789: Thornburgh v. Savage M. Co., 7 M. R. 667.

12. A bill for an account of the products of an oil well should be brought in the county where the well is situate: Thompson v. Noble, 3 Pittsburgh, 201; Post OIL.

FLEESON V. THE SAVAGE SILVER MINING CO.

(3 Nevada, 157. Supreme Court, 1867.)

Stockholder at date of suit disqualified as juror. A person who is a stockholder in a mining corporation at the time a suit is commenced against it, is, under the statutes of Nevada, liable for his proportion of the costs incurred by the corporation in such suit, and is therefore disqualified to act as a juror, although his connection with the corporation was severed before the trial.

Error in overruling challenge for cause, cured. If a court refuses to allow a challenge for cause against a juror who is disqualified, and the same juror is afterward peremptorily challenged, and there is no objection to the twelve jurors who find the verdict, the error of the court in overruling the challenge for cause is cured by the peremptory challenge.

The fact that a peremptory challenge is used to set aside a juror who should have been set aside for cause, will not authorize a reversal, unless it is made to appear that the peremptory challenge was needed to excuse an objectionable juryman.

The court will not presume without an affirmative record that a party exhausted his challenges.

Assignment of errors not a statement of facts. An assignment of errors can not be received by an appellate court as a statement of facts in favor of the arty making such assignment. Imperfect record-Presumption as to disqualified juror. In a case in which G., a disqualified juror, was challenged for cause, and the challenge overruled, if the record does not show whether he served as a juror or not, and there is no assignment of error on the ground that he did so serve, but only that aprellant was compelled to challenge him peremptorily, it will be assumed by the Supreme Court that he was peremptorily challenged.

Appeal from the District Court of the First Judicial District; Hon. C. BURBANK presiding.

On the trial of this cause, John Gillig was called as a juror. It appeared by his examination, touching his quali fications for a juror, that after this suit was commenced against the defendant he became a stockholder in that corporation, and so continued to be for some time, during which the suit was pending, but had sold out all his stock in the company previous to being called as a juror. It also appeared that, during the pendency of this suit, he had made a contract with a stockholder of the company to purchase from him ten feet or ten shares of stock in the company.

Before this stock was actually transferred to him, he assigned the contract to another party, and at the time of his examination touching his qualification as a juror, he neither held any stock in the company nor had any contract for the purchase of stock therein.

J. NEELY JOHNSON and ROBERT M. CLARKE, for appellant.

C. J. HILLYER, for respondent.

By the Court, LEWIS, J.

But one error is relied on by the appellant in this case as a ground for the reversal of the judgment, namely, that the court erred in overruling the challenge interposed to the juror John Gillig.

That jurors, to be competent, should stand indifferent, and should occupy no position nor stand in any relation which, in contemplation of law, renders them incapable of being impartial, there can be no question. They must be superior to every just objection, or in the language of Lord Coke, they should be indifferent as they stand unsworn." When entering the jury box they should be free from all feelings of interest in the result of the action, from all prejudice against or favor toward either of the parties, with no opinion or conviction which would constitute the slightest obstacle to a fair consideration of the evidence, or a candid conclusion upon it.

We are satisfied beyond all doubt that the juror Gillig had an interest adverse to the plaintiff in this action, and was not, therefore, a competent juror. The disqualifying interest, did not, however, as claimed by counsel for appellant, result from the contract to purchase a certain amount of the defendant's stock, and which had been assigned by him at the time of the trial, but from the fact that he was a stockholder in the Savage Company at the time this suit was commenced and for some time afterward, and thereby, under the laws then existing, became liable for his proportion of the costs incurred during such time. By section 16 of an act entitled "An act to provide for the formation of