in this same case on appeal, as follows: "If, in fact, the plaintiff did not rely upon the statements contained in the notary's certificate, then the mere fact of the notary's violation of his official duty could not have been the proximate cause of plaintiff's injury. It was necessary for the plaintiff to allege, as he did, that he did rely upon such certificate, but this allegation is put in issue by the answer. It was therefore necessary to be supported by the proof, and considered and passed upon by the jury." The right of plaintiff to recover depended upon his haying relied upon the certificate of the notary in making the loan. Defendants contended Defendants contended upon this trial that, upon the first trial, Mahoney had testified that he did not see the mortgage until after the money was paid over to Reek on January 11th, and that Mrs. Mahoney had given somewhat similar testimony. Upon the second trial, Mahoney testified that Reck brought the mortgage, duly executed with Dixon's certificate attached, to his (Mahoney's) residence on the evening of January 10th, and that he read the mortgage and the notary's certificate thereto, and, relying upon such certificate, he made the loan. Mrs. Mahoney, on the second trial, testified that Reek brought the mortgage to their residence on the evening of January 10th, and that she saw her husband read it at that time, and that he and Reek were talking about it in her presence. Upon the second trial the court gave instructions 8, 9, and 10, embodying the law, as declared by this court in the excerpt from its opinion above, and, in his argument, counsel might better have confined his attention to the instructions so given; but, so long as the portion of the opinion read does not state or comment on the facts, or disclose what the result of the first trial or the appeal was, we are not prepared to say that the trial court abused its discretion in refusing to prohibit the reading of the excerpt quoted. While there is some diversity of opinion on the subject, the rule seems to be stated correctly as follows: "Some authorities hold it error to permit counsel to read law to the jury in civil cases, while the great majority hold it not necessarily reversible error, but within the sound discretion of the court, to be reviewed only in cases of abuse. Where the latter doctrine prevails, if the law is correctly laid down in the decision or book used by counsel, it does not constitute ground of exception, although such practice is not to be encouraged. But if the reading from a decision was to bring before the jury the facts of the case decided, or the amount of the verdict, or the comments of the judge on the facts, to influence the jury in deciding upon the facts in the case on trial or in fixing the amount of damages, it is generally pronounced to be clearly erroneous." 2 Enc. Plead. & Prac. pp. 709, 710. If any distinction whatever is to be made, it would seem that a stricter rule would be observed in

criminal than in civil cases. But in Territory v. Hart, 7 Mont. 42, 14 Pac. 768, this court said: "Perhaps the correct rule is laid down by English, C. J., in an Arkansas case, as follows: "The court may, in its discretion, permit counsel to read law to the jury in a criminal case, but it is its province to determine whether the law proposed to be read is applicable to the facts of the case. The matter of reading law to the jury, as part of the argument, is under the discretion and control of the court, and its rulings in the matter are not subject to review, unless its discretion is abused to the prejudice of the accused.' Curtis v. State, 36 Ark. 292." It is apparent that the purpose of counsel was to illustrate his argument and to account for what he contended was the direct contradiction in the testimony of the plaintiff and Mrs. Mahoney, as given upon the first and the second trials, by showing that. according to the law of the case as declared by this court, and by the trial court in instructions 8, 9, and 10, the plaintiff could not possibly prevail if his former testimony, as defendants claimed it was given, was true, and therefore it became necessary for him to change his story in order to prove one of the material allegations of his complaint, viz.: "That he relied upon the statements contained in the certificate of said notary public." Counsel appears to have kept within the rule recognized by the authorities. Gilberson v. Miller M. & S. Co., 4 Utah, 46, 5 Pac. 699.

4. Insufficiency of evidence. The theory of counsel for appellant seems to be that, as the only testimony as to the transaction between plaintiff and Reek was that given by plaintiff, to the effect that the plaintiff saw the executed mortgage with the notary's certificate attached before he parted with his money, and that he made the loan relying on the notary's certificate, and the corroboration of this, so far as it is corroborated by the testimony of Mrs. Mahoney, therefore the verdict in favor of the defendants is not supported by the evidence. But the credibility of the plaintiff and Mrs. Mahoney was a question for the jury; and, if the jury believed that upon the first trial each of these witnesses had sworn to material facts contradictory of their respective stories told upon the second trial, then the jury were at liberty to disregard their testimony given upon the second trial, for there were not any corroborating facts or circumstances;

and

if their testimony given at the second trial be disregarded by the jury-as it evidently was there was an entire failure of proof, and the verdict for the defendants follows as a matter of course.

The judgment and order are affirmed.
Affirmed.

BRANTLY, C. J., and MILBURN, J.,

concur.

(34 Mont. 484)

FOURNIER v. COUDERT.

(Supreme Court of Montana. Nov. 12, 1906.) 1. APPEAL-REVIEW--GROUNDS FOR DECISION. Where a motion for a new trial was made on three distinct grounds, an order sustaining the motion will be affirmed if justified on any one of the grounds.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3410.]

2. SAME-NEW TRIAL-DISCRETION OF TRIAL COURT.

The granting of a motion for new trial on the ground that the evidence was insufficient to sustain the verdict will be sustained in the absence of manifest abuse of discretion.

[Ed. Note.-For cases in point. see vol. 3. Cent. Dig. Appeal and Error, § 3871.]

Appeal from District Court, Flathead County; J. E. Erickson, Judge.

Action by Josephine Fournier against Marguerite Coudert. From an order granting plaintiff's motion for a new trial, defendant appeals. Affirmed.

McIntire & Kendall, for appellant. D. F. Smith, for respondent.

HOLLOWAY, J. This action was commenced by Josephine Fournier to enforce a vendor's lien upon certain real estate situated in Kalispell. In the first paragraph of the complaint the plaintiff alleges that she sold to the defendant the property therein described, for which the defendant agreed ta pay her the sum of $750. The complaint fur. ther alleges that defendant has failed to pay any part of the purchase price, except the sum of $45. The plaintiff claims a vendor's lien upon the property for $705, the balance of the purchase price. The answer admits the allegations of paragraph 1, but denies every other allegation in the complaint. The cause was tried to the court sitting with a jury. The jury returned a special finding to the effect that nothing remained unpaid on the purchase price of the property. The plaintiff moved for a new trial upon the following grounds: (1) Newly discovered evidence; (2) insufficiency of the evidence to justify the finding; and (3) the finding is against law. After a hearing this motion was sustained in an order general in its terms. From that order the defendant appeals.

Counsel for appellant in their brief proceed upon the theory that the court granted the motion for a new trial upon the ground of newly discovered evidence, and argue that there was not a sufficient showing of diligence on the part of the plaintiff to warrant the court in considering that ground of the motion. With this argument of counsel and their conclusion we agree. But there is not anything in the record to justify their conclusion that the decision of the trial court was based upon the ground of newly discovered evidence. The only issue tried was whether the purchase price had been paid. Upon that issue there was a direct conflict in the testimony.

The motion was made upon at least three distinct grounds. The order sustaining it does not designate on which of the grounds it was made. The order will be affirmed, then, if justified upon any one of the grounds of the motion. Case v. Kramer, 34 Mont. 85 Pac. 878; Gillies v. Clarke Fork Coal M. Co., 32 Mont. 320, 80 Pac. 370; Wright v. Mathews, 28 Mont. 442, 72 Pac. 820; Beach v. Spokane R. & W. Co., 25 Mont. 367, 65 Pac. 106.

It is a well-settled rule in this state that, where the evidence is conflicting, the granting or refusal of a motion for a new trial is lodged in the sound legal discretion of the trial court. Case v. Kramer, supra; State v. Landry, 29 Mont. 218, 74 Pac. 418; O'Rourke v. Sherman, 23 Mont. 310, 58 Pac. 810. In Hamilton v. Nelson, 22 Mont. 539, 57 Pac. 146, this court said: "Whether or not a new trial should be granted for the reason that the verdict is against the weight of the evidence is a question peculiarly within the sound legal discretion of the trial judge, who has the advantage of seeing the witnesses, of hearing ther testimony orally delivered, and of observing their demeanor and conduct upon the stand; hence the exercise of such discretion will not be disturbed by this court." And it is only in case of a manifest abuse of the discretion that this court can interfere. Case v. Kramer, supra; Murray v. Heinze, 17 Mont. 353, 42 Pac. 1057; Haggin v. Saile, 14 Mont. 79, 35 Pac. 514.

If the judge of the trial court is satisfied that the finding of the jury is not warranted by the evidence that is, that the evidence preponderates against the finding—such finding should be set aside. Harrington v. Butte & Boston M. Co., 27 Mont. 1, 69 Pac. 102; Patten v. Hyde, 23 Mont. 23, 57 Pac. 407, and cases cited.

The action of the trial court in granting the motion for a new trial can be justified upon the theory that the court concluded that the evidence preponderated against the finding; and, as the judge of that court had a much better opportunity to weigh the evidence, from personal observation of the witnesses while testifying, than is afforded to the members of this court, we cannot say that the trial court abused its discretion in granting the motion. The order is therefore affirmed. Affirmed.

BRANTLY, C. J., concurs. MILBURN, J., having been absent, takes no part in the foregoing decision.

(34 Mont. 461) HELENA GOLD & IRON CO. v. BAGGALEY.

(Supreme Court of Montana. Nov. 5, 1906.) 1. MINES AND MINERALS LOCATION OF CLAIMS-DECLARATORY STATEMENT-SUFFI

CIENCY.

Pol. Code, § 3611, as amended by Act. 1901, Sess. Laws 1901, p. 140, declares that, before

the expiration of 60 days after posting the required notice the locator of a mining claim must sink a discovery shaft to the depth of at least 10 feet, or deeper, if necessary, to show a well-defined crevice or valuable deposit; and a cut, cross-cut, or tunnel which cuts the vein at the depth of 10 feet below the surface, or an open cut of at least 10 feet in length along the lode from the point of discovery, is declared to be equivalent to a discovery shaft. Section 3612 provides that within 90 days there must be filed in the office of the county clerk a statement showing, if a lode claim, the number of lineal feet claimed in length along the course of the vein each way from the point of discovery, with the width on each side of the center of the vein, and the general course of the lode or vein, the dimensions and location of the discovery shaft, or its equivalent, sunk upon lode or placer claims. The declaratory statement as to claim that "at the point of discovery a shaft. the dimensions of which are by feet and feet in ten feet and six inches depth,' and another declaratory statement read, "at the point of discovery, a tunnel, the dimensions. of which are by ——— feet and eleven feet eight inches in length." Held, that the descriptions were insufficient, under the statute, as containing a statement of but one dimension, and as the statement of the dimensions must be such as to leave at least an inference that the excavation cuts the vein at the depth or for the length required by the statute.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Mines and Minerals, $$ 45, 46.] 2. SAME-CONFLICTING LOCATIONS.

Pol. Code, § 3610, provides that any discoverer of a mineral deposit may locate a claim on the vein, lode, or deposit by posting a certain notice showing, if a lode claim, the number of lineal feet claimed in length along the course of the vein each way from the point of discovery, with the width on each side of the center of the vein. and the general course of the vein or lode as near as may be and section 3611, as amended by Sess. Laws 1901, p. 140, requires the locator, within 60 days from the posting of the notice, to do certain work on the claim. Held, that where, after the posting of a notice. by plaintiff, defendant located a claim so that it conflicted with an area equal to a circle, the radius of which was the longest distance claimed by plaintiff along the lode from the point of his discovery, and plaintiff failed to perform the required work, the area in conflict did not revert to the public domain, but inured to the benefit of defendant's claim, and by the performance of the proper conditions subsequent by him he became entitled to the possession of the area in conflict.

[Ed. Note. For cases in point, see vol. 34. Cent. Dig. Mines and Minerals, § 65.]

3. SAME ACTION ON ADVERSE TO MINING

CLAIM-JUDGMENT.

Inasmuch as the federal government is a quasi party in an action on an adverse to a mining claim, if it appears that neither party is entitled to a patent, judgment should be rendered to such effect.

Appeal from District Court, Lewis & Clark County; Henry C. Smith, Judge.

Action by the Helena Gold & Iron Company against Ralph Baggaley. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

C. B. Nolan, for appellant. C. R. Stranahan, W. T. Pigott, and John J. McHatton, for appellee.

BRANTLY, C. J. The defendant on March 13, 1905, filed an application in the land

office at Helena for a patent to the Success quartz lode mining claim. Within the 60 days of publication of notice of the application, the plaintiff filed its adverse claim, alleging right to the possession of the ground covered by the Success claim to the extent of 5.08 acres under two prior locations, named, respectively, the "Helena" and the "Wisconsin" quartz lode claims. This action was then brought to determine the right of possession to the area in controversy. The discovery of the Success lode was made by one William M. Kirkpatrick, the grantor of the defendant, on December 6, 1904. The preliminary work was done and his declaratory statement was filed and recorded on January 4, 1905. The discovery of the Helena lode was made on April 9, 1904. The declaratory statement was filed for record on June 8, 1904. Title to the Wisconsin lode is based upon a discovery and location made on November 14, 1904, the record of which was made on January 10, 1905. At the trial the defendant objected to the introduction in evidence of the declaratory statements of the Helena and Wisconsin lode claims, on the ground that they are void, in that they do not state the dimensions of the excavations made at the points of discovery upon the two claims; the excavation in the one case being a shaft and in the other a tunnel. The objections were overruled, and the statements were admitted. Upon the evidence adduced the court made findings of fact and conclusions of law, and rendered judgment for the defendant. The appeal is from the judgment.

No question is made as to the validity of the Success location, except as to the area in conflict. The contention is that the court erred in its conclusions of law upon the facts found, and in rendering judgment for the defendant. The defendant answers this contention by the argument that the judgment is correct because (1) the complaint does not state facts sufficient to constitute a cause of action; and (2) that it is apparent that the declaratory statements filed for record for both the plaintiff's claims, which are set forth in full in the findings, are ineffective to show any right in the plaintiff, since they do not meet the requirements of the statute. The second contention of the defendant must be sustained, and is conclusive of the case. Since this is so, we shall not pause to consider whether the complaint is sufficient, but, for the present purposes, assume that it is, and proceed to discuss the questions presented by the second contention.

In so far as it is necessary to consider the declaratory statements, the portions of them describing the excavations made at the points of discovery are as follows: For the Helena claim the statement is: "Since and within sixty days from the date of this location, the following work has been performed upon said lead, viz.: At the point of discovery a shaft, the dimensions of which are

by

feet and

feet in ten feet and six inches depth." In this connection the Wisconsin statement reads: "Since and within sixty days from the date of this location, the following work has been performed upon said lead, viz.: At the point of discovery, a tunnel, the dimensions of which are by feet, and eleven feet eight inches in length." Assuming, for present purposes, that the locations of these excavations are sufficiently fixed by other recitals in the statements, these are the only recitals descriptive of the preliminary work done on either claim. Section 3610 of the Political Code provides that on all claims a notice must be posted at the point of discovery, stating: (1) the name of the lode; (2) the name of the locator or locators; (3) the date of the location; (4) if a lode claim, the number of lineal feet claimed along the vein each way from the point of discovery, with the width on each side of the center of the vein, and the general course of the vein, as near as may be. Section 3611, as amended by the act of 1901 (Sess. Laws 1901, p. 140), declares that, before the expiration of 60 days after posting the notice, the locator or locators must sink a discovery shaft upon the claim to the depth of at least 10 feet from the lowest part of the rim of the shaft, or deeper, if necessary, to show a well-defined crevice or valuable deposit. A cut, cross-cut, or tunnel which cuts the vein at the depth of 10 feet below the surface, or an open cut of at least 10 feet in length along the lode from the point where the lead is discovered, is declared to be equivalent to a discovery shaft. Amended section 3612 is the same as Code section 3612, except that it omits subdivision 7 of the latter, which required the declaratory statement to contain the location and description of each corner with the markings thereon. Sections 3611 and 3612 were amended to avoid the effect of the decision in Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153. This case declared a notice insufficient which failed to give the location and description of the corners with the markings thereon. Νο other change was made in section 3612, and its requirement as to the location and dimensions of the discovery shaft or other excavation at the point of discovery, required as preliminary work, are the same as in the Code section. It declares that the notice must contain: "(6) The dimensions and location of the discovery shaft, cut or tunnel, or its equivalent, sunk upon lode or placer claims." The language of the statute is mandatory in terms. Hence, this court in construing it has departed somewhat from the liberal rule of construction held applicable to such statements prior to the adoption of the Code of 1895, and has uniformly held that the requirements therein must be substantially observed. Purdum v. Laddin, supra; Hahn v. James, 29 Mont. 1, 73 Pac. 965; Wilson v. Freeman, 29 Mont. 470, 75 Pac. 84, 68 L. R. A. 833; Dolan v. Passmore,

34 Mont., 85 Pac. 1034. As stated above, the defect rendering the notice abortive in Purdum v. Laddin was a failure to give the location and description of the corners with the markings thereon. In Hahn v. James, there was the same defect, in addition to a failure to give the location and dimensions of the discovery shaft. Again, in Wilson v. Freeman, there was a failure to give the location of the discovery shaft, and further, since it appeared that the plaintiff's claim was based upon a relocation of an abandoned claim, the notice was also declared abortive because of a failure to comply with the requirements of section 3615, touching the relocation of such claims. In Walker v. Pennington, 27 Mont. 369, 71 Pac. 156, it was held that a notice was not, as a matter of law, defective which omitted from the description of the corner posts a statement of their length. This holding proceeded upon the correct theory that, since subdivision 7 of section 3612 did not require this to be stated, but the location and description only with the markings, and the notice did contain a statement of these, it was prima facie good. In the case of Dolan v. Passmore a notice which failed to show, even by inference that the tunnel at the point of discovery cut the vein 10 feet below the surface, as is required by section 3611, supra, but did show that the contrary was the fact, was held insufficient. One purpose of these requirements was that the claim might be identified by the notice, so that one going upon the ground with it might find the claim, and know from the evidence found there that the statute has been complied with. Another purpose was to do away with a practice which had prevailed prior to the enactment of the Code, whereby one person with little labor could make a number of locations in the same locality, and thus withdraw from exploration by other prospectors a large area of the public land. It was deemed unwise that this practice should prevail, and hence the requirement that substantial work should be done before the notice of location could be filed, and that the notice should show that such work had in fact been done; and though the posts or other markings might disappear, the excavations upon the ground would remain, and they should be of such character as to meet the requirements of the statute, and thus effectuate its purpose. The Legislature amended the Code provision so as to remove the necessity of locating and describing the corners with the markings thereon, but it permitted section 3612 to remain otherwise intact; thus evincing a purpose that the locator of a mining claim should not be released from doing the work required under the Code provision in order to make his location valid. The notices before us contain a statement of but one dimension of the excavations, whereas the statute requires "the dimensions" to be stated, including, of course, length, breadth, and depth. The duty of

courts is to find out what the Legislature has said upon the subject in hand, and, if the language is clear and unambiguous, to follow it, and declare the rights of the parties accordingly. A statement of the depth of an excavation is no more a statement of "the dimensions" of it than would be a statement of its breadth. Of course, a shaft must have dimensions, but a hole driven by a diamond drill also has dimensions; and, so far as the dimensions given in either one of the notices in question go, they would apply as well to a drill hole as to a shaft or tunnel. While the court might have excluded the notices upon the objection of counsel, which was seasonably made, under the cases cited it was clearly correct in its conclusion from the facts found that the judgment must be for the defendant.

It was suggested during the argument that the case of Dolan v. Passmore applies too strict a rule, in that under it the notice must state that the preliminary work has been done, as required in section 3611. What is said in that case is that it must appear from the record that the preliminary work has been done. This is manifestly the purpose of section 3612, when read in connection with section 3611. The dimensions are not set forth intelligibly in the notice which was considered in that case; but, even if they were, a tunnel of the dimensions given could not possibly cut the vein at the depth of 10 feet below the surface. The requirement of the statute, that the notice must state the dimensions, could have no other purpose than to show a compliance with the law; and while we do not say that the notice should state definitely that the excavation cuts the vein at the depth: or for the length required by the statute, yet the statement of the dimensions must be such as to leave at least an inference that such is the case, and a notice which fails to thus set forth the work done certainly does not conform to the spirit of the statute. If these requirements are too burdensome, an appeal may well be made to the Legislature to lighten them; but the courts have no power to say that this or that substantial requirement may be omitted and the notice still be good. If such were the rule, the courts could ignore or nullify the will of the Legislature as expressed in its solemn enactments, and substitute instead their own notions of what the law ought to be.

Counsel for appellant contends further that, even if the Helena and Wisconsin locations are void, the judgment must be held erroneous, for the reason that the Success lode was located during the 60 days allowed under the statute for a completion of the Wisconsin location, after the preliminary notice required by section 3610 had been posted. The argument is that, by posting this notice, pro hæc vice, and for the period of 60 days, an area of the public domain,

equal to a circle whose radius is the longest distance claimed along the lode from the point of discovery, is withdrawn absolutely from the public domain, and that a location made on any part of this area during this period is invalid. In support of this contention, he cites, among other cases, Sanders v. Noble, 22 Mont. 115, 55 Pac. 1037, and Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 565, 28 L. Ed. 1116. Since the federal government is a quasi party to suits of this character, and it is incumbent upon the court, in a proper case, to render judgment that neither plaintiff nor defendant is entitled to a patent (Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990; Wilson v. Freeman, supra), it becomes necessary to notice this contention; for, although the plaintiff may not present a case upon which he may recover, defendant may not, upon his own showing, be entitled to a patent. In the case of Sanders v. Noble the facts were that the

plaintiffs and defendants claimed title to a conflicting area; the former under a location of the Never Sweat lode, and the latter under a location named the Yukon. The locations were made under the following circumstances: In August, 1897, plaintiffs were prospecting in the vicinity of the conflicting area. On August 7th they made a discovery, and after some preliminary work posted the notice required by section 3610, supra. They then left the vicinity to do work elsewhere, and were gone for about 30 days. In their absence, and during the same month, the defendants went upon the ground, and located the Yukon, completing their location within 30 days after posting their notice. The plaintiffs thereafter, and within the 90 days allowed by the statute, did their preliminary work and completed their location. Both made the record required within the 90 days. The two claims being in conflict, the question arose as to who was entitled to the area so in conflict. It was held upon a review of the authorities, following the case of Erhardt v. Boaro, supra, that the 90 days allowed by the statute after making a discovery and posting the notice were intended to give the discoverer of a lead time to explore it and find out its strike, so that he would know how to lay his claim, and therefore that he could during the 90 days swing the claim in any direction, so as to extend it along the vein to the exclusion of any other location made in the meantime, within a circular area, the diameter of which is equal to the longest distance claimed from the point of discovery. in the later case of Bramlett v. Flick, 23 Mont. 96, 57 Pac. 869, the same condition was held to obtain, under section 1477, div. 5, of the Compiled Statutes of 1887, for the 20 days allowed for the doing of the preliminary work in the completion of the location. But it may not be overlooked that the question before the court in each of the