Opinion of the Court. there are a few cases to the contrary. Thus in Guykowski v. People, 1 Scam. 476, it was held that a new trial should be granted because one of the jurors was an alien when sworn, of which fact the defendant was ignorant at the time; but in Greenup v. Stoker, 3 Gilm. 202, the Supreme Court of Illinois, through Purple, J., reluctantly concluded that it was not indispensable to hold that that case was not the law, but limited its application to capital cases; and in Chase v. People, 40 Illinois, 352, it was finally overruled. Mr. Justice Breese spoke for the court, and it was held that alienage in a juror was not a positive disqualification, but ground of exemption or of challenge, and nothing more. It has been held that, under the constitution of New York, the defendant in a capital case cannot consent to be tried by less than a full jury of twelve men, Cancemi v. People, 18 N. Y. 128, and that, under the constitution of California, a law authorizing a change of the place of trial of a criminal action to another county than that where the crime was committed on application of the prosecution without defendant's consent, was invalid, People v. Powell, 87 California, 348; but in neither of these cases was it intimated that objection to individual jurors could not be waived by the accused or that trial by jury would be violated if persons who were open to challenge happened to be empanelled. The disqualification of alienage is cause of challenge propter defectum, on account of personal objection, and if, voluntarily, or through negligence, or want of knowledge, such objection fails to be insisted on, the conclusion that the judgment is thereby invalidated is wholly inadmissible. The defect is not fundamental as affecting the substantial rights of the accused, and the verdict is not void for want of power to render it. United States v. Gale, 109 U. S. 65, 72. Whether, where the defendant is without fault and may have been prejudiced, a new trial may not be granted on such a ground, is another question. That is not the inquiry here, but whether the law of New Jersey is invalid under the constitution of that State, and this judgment void because one of the jurors who tried petitioner may have been an alien. If, prior to the filing of the petition, the objection had been Syllabus. brought before the state courts and overruled, we perceive no reason for declining to be bound by their view of the effect of the state constitution; and if the matter had not been called to their attention, it does not appear why that should not have been, or should not now be, done. In any view, we cannot hold, on this petition, that petitioner has been denied due process of law or that protection of the laws accorded to all others similarly situated. The Circuit Court was right in declining by writ of habeas corpus to obstruct the ordinary administration of the criminal laws of New Jersey through the tribunals of that State, (In re Wood, 140 U. S. 278, 289,) and its order is Affirmed. 160 303 161 577 162 409 HAWS v. VICTORIA COPPER MINING COMPANY. L-ed 438 160 303 161 577 160 303 L-ed 436 168 235 168 323 APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH. No. 66. Argued November 15, 18, 1895. — Decided December 23, 1895. 168 333 160 303 L-ed 436 781 794 On an appeal from a judgment of a territorial court, this court is limited This case comes within the general rule that the allowance or refusal of a 160 303 87f 380 160 303 Led 436 183 570 160 40 L-ed 436 The decree and complaint, taken together, fully describe, and furnish ample 112 f 160 303 17 303 The contention that the complaint did not aver a discovery of a vein or lode prior to the location under which the plaintiffs in error claim is wholly without merit. Likewise is the contention without merit that the discovery under which Sundry exceptions as to the rulings of the court upon the admissibility Opinion of the Court. THE case is stated in the opinion. Mr. Frederic D. McKenney for appellant. Mr. S. F. Phillips, Mr. Charles H. Toll, and Mr. D. V. Burns were on his brief. Mr. Charles H. Armes and Mr. Arthur H. Birney for appellee. Mr. C. C. Dey was on their brief. MR. JUSTICE WHITE delivered the opinion of the court. The Victoria Copper Mining Company, a corporation created under the laws of the State of Illinois, brought its action to recover possession of two mining claims known as the "Antietam lode" and the "Copper the Ace lode." The mines thus designated were fully and specifically described in the complaint, which averred that the defendant had by force and violence ousted the complainants from the property. In addition to the averments essential to justify a judgment for possession, the complaint contained allegations deemed to be sufficient to authorize the granting of an injunction, which was prayed for, restraining the defendant from taking, or shipping, or selling ore extracted, or to be extracted, from the mines in controversy. The prayer of the complaint was for possession, and twenty-five thousand dollars damages, the value of ore averred to have been previously unlawfully taken by the defendants. The defendants jointly answered, specifically denying each allegation of the complaint, and by crosscomplaint, Edward W. Keith, Samuel R. Whitall, William V. R. Whitall and Michael Smith alleged that they were the owners in fee of the mines, subject to the paramount title of the United States, and they prayed that their title be quieted. The averments of the cross-bill were traversed by specific denials. Upon these issues, a jury having first been waived, the case was tried by the court, which found the following facts, which findings were tantamount to concluding that the averments of the bill of complaint had been proven : "Findings of fact. "First. That Lewis R. Dyer, the locator of the two mining claims described in the complaint herein, called respectively Opinion of the Court. 'Antietam lode' and 'Copper the Ace lode,' and situated in Uintah County, Territory of Utah, at and prior to the time of locating the same discovered and appropriated a mineral vein or lode of rock in place. "Second. That at the time of the discovery of said vein or lode and the location of said mining claims the land included within the boundaries of said mining claims was public mineral land, wholly unoccupied and unclaimed. "Third. That after the discovery of said vein or lode or mineral-bearing rock in place, to wit, on the 17th day of September, 1887, said Lewis R. Dyer, being a citizen of the United States, located the two mining claims described in the complaint herein by writing on a tree standing at, or in close proximity to, the place or places of discovery of said vein or lode the two notices of location, one for each of said claims. "Fourth. That said notices each described the respective claims by reference to said tree; also respectively described the boundaries of each claim by courses and distances from said tree; that each of said notices contained the name of the locator and date of location; that said tree was a sufficient natural object by which said claims and each of them could be identified. "Fifth. That soon after the writing of said notices of location and during the month of September, 1887, said Dyer marked sufficiently on the ground the boundaries of said mining claims and each of them by setting suitable stakes or posts at the corners of each of said claims; also at the centre of the respective side lines of each of said claims; also by writing on the stakes to identify them with reference to the respective claims, and securing said stakes by stones piled around them. "Sixth. That thereafter, on the 13th day of February, 1888, said Dyer caused a copy of said location notices and each of them to be recorded in the office of the county recorder of said county of Uintah; that there was not at that time, or at the time of locating said claims, any mining district recorder; that said mining claims were situated in what VOL. CLX-20 Opinion of the Court. had been known as the 'Carbonate mining district;' that the rules and regulations of said mining district had long prior to the said 17th day of September, 1887, fallen into disuse, and were not then, or for a long time prior thereto had not been, in force and effect. "Seventh. That the plaintiff is a corporation, duly organized and existing under the laws of the State of Illinois, and was so organized on the 15th day of May, 1888. "Eighth. That on the 4th day of May, 1888, said Lewis R. Dyer duly transferred an equal undivided one half of said mining claims, and each of them, to Edward A. Ferguson and August Bohn, Jr., and that thereafter, to wit, on the 28th day of May, 1888, said Lewis R. Dyer, Edward A. Ferguson, and August Bohn, Jr., duly transferred and conveyed said mining claims and each of them to the plaintiff company. "Ninth. That since said 17th day of September, 1887, until the 10th day of June, 1889, said Dyer and his grantee, the plaintiff herein, continuously worked upon and improved said mining claims, and each of them, and actually possessed the same, and have expended in said work and improvements upward of the sum of $7000; that said mining claims are contiguous to each other, and were worked jointly and in common; that the work done and improvements made on said claims were such as did develop said claims and each of them, and that for each of the calendar years of 1887, 1888, and 1889 more than one hundred dollars' worth of work was actually done on each of said claims by said Dyer and his grantee, the plaintiff herein. "Tenth. That on Sunday night, the 9th day of June, 1889, while said plaintiff was in actual possession of said claims and working the same, by its agents and employés, the defendant William Haws went upon the ground of said mining claims with two men and wrongfully took possession of the same, and the working upon the same, prepared to hold such possession by force, and did wrongfully keep the plaintiff and its employés from thereafter working on said mining claims, and wrongfully excluded them therefrom, and that said William Haws and Heber Timothy and their grantees, the other de |