The answer further denies the material averments of the bill, and claims title and possession of the ground in dispute in defendant, by virtue of lawful location thereof, made by him August 25, 1881.

It is contended by plaintiff's counsel that this denial, above quoted, is insufficient, and that it virtually admits plaintiff's title and right of possession to said mining claim and ground. And that such admission renders unnecessary any proof on the part of plaintiff of its title or right of possession thereto, and hence no evidence was offered thereon. I cannot agree with counsel in this position. The denial is as broad as the averment in the complaint, and this is all that can be required of the defendant. The alleged fault in this denial is, first, that it does not deny that the Bay State mine was located in 1871; and, secondly, that it does not deny that plaintiff ever owned or was ever in possession of such mine or mining claim. As to the first alleged fault, it is wholly immaterial whether or not the Bay State mine was first located in 1871; as to the second, defendant was not called upon to deny that plaintiff had ever owned or ever was in possession of the same. The issue joined was as to the ownership and right of possession to that mining claim on the twenty-fifth day of August, 1881, and the subsequent and present ownership thereof. On this issue there is no ambiguity in defendant's answer, and upon the trial plaintiff was put upon its proof of title and right of possession thereof. And, on the other hand, defendant was equally put upon proof of his title to the "Ida May" lode before he could ask a decree in his favor adjudging him to be the owner thereof. In suits of this nature, the better title must prevail, and judgment must be for the party establishing that better title. A mining claim, until patent therefor has been issued, is held by peculiar title-a title which is never complete and absolute, and which can only be maintained by the annual expenditure thereon of the work by law required.

Plaintiff may have owned the Bay State mine in 1871, but this would not be evidence of its ownership thereof on the twenty-fifth of August, 1881, or subsequent thereto.

Forfeiture or abandonment may have arisen during that interval. On this point no presumptions arise, and on the other hand, none arise that the title has been maintained by the expenditure of the requisite work upon the claim. These things are to be shown, on the one hand or the other, by satisfactory proof. They are facts to be established by the testimony submitted.

A claimant of mining ground, until he has secured patent therefor, must be an actor, and must annually perform the required work thereon, and in establishing title thereto must show compliance with the law in this respect.

Nothing of the kind is shown by either party in this suit, and it seems to come clearly within the principle announced in Jackson v. Roby, 109 U. S., 410.

In that case it appeared that neither party had done the requisite work upon the ground in controversy, and neither party was

adjudged to have title thereto. In this case it is not shown that either party has title to the ground in dispute, and the suit must be dismissed for want of proof.

The deposition of M. D. Howell shows that in 1880 he was at work on the Bay State mine, either for or with the permission of plaintiff. This is controverted by the joint affidavit of defendant, Thomas Saunders, and P. F. Kelly (the latter disinterested witnesses), filed in the land office, and submitted with the deposition of the register of the land office, taken by defendant.

Aside from the deposition of Howell, no evidence is submitted to the court as to the title or right of possession of either party to any portion of the land in dispute, excepting the record of defendant's application for a patent for the Ida May lode, and accompanying exhibits, filed in the land office, and plaintiff's protest thereto, with exhibits annexed.

These records are purely ex parte matters, on either side, prepared for the land office, and in no wise competent proof of the issues involved in this suit.

The view taken of the case renders it unnecessary to consider several points urged by defendants against the maintenance of the suit.

The bill must be dismissed, with costs to defendant, and it is so ordered.

August 11, 1884.

SUPREME COURT OF CALIFORNIA.

No. 9,608.

YEAZELL v. SUPERIOR COURT, etc.

Department Two. Filed August 12, 1884.

CONSENT JUDGMENT-APPEAL FROM-DISMISSAL.-An appeal from a judgment of the justice's court, entered by consent, may be dismissed by the superior court, on its own motion. APPLICATION for a writ of review to the superior court for the city and county of San Francisco.

John Wade, for the petitioner.

II. L. Joachimsen, for the respondent.

THE COURT. The application for the writ is denied. The appeal was taken from a judgment entered by consent in the justice's court, and the superior court was authorized to dismiss the appeal of its own motion, on an inspection of the record. Such a judgment was not appealable. If the judgment was entered in the justice's court, contrary to the stipulation, the remedy was by motion in that court.

No. 9,263.

CHANDLER V. PEOPLE'S SAVINGS BANK ET AL., MARGARET POORMAN, Intervenor.

Department Two. Filed August 12, 1884.

WHERE A CAUSE IS REMANDED BY THE SUPREME COURT for further proceedings, unless the order of the court is restricted, the cause goes back to the superior court to be re-tried, subject to the views expressed by the supreme court.

APPEAL from a judgment of the superior court for Sacramento county, entered in favor of the defendant, and from an order denying the plaintiff a new trial. The opinion states the facts.

Hart & Beatty, for the appellant.

McKenna and Freeman & Bates, for the respondent.

THORNTON, J. In this case, when here before, on appeal by the intervenor from the judgment, the judgment was reversed on a matter relating to interest on certain balances on the ground that the finding of fact as to such interest was not sustained by the evidence. This plainly appears from the opinion in the cause: See Chandler v. People's Savings Bank, on the appeal of Margaret Poorman, 61 Cal., 401. It is said in the opinion, referring to the finding as to this interest, "this finding is attacked by the intervenor, and it appears to be unsustained by the evidence." This interest appears to have been computed on certain monthly balances ascertained in making up the account between the plaintiff and one Poorman, the assignor of the intervenor, and as to this the court said in the opinion: "Moreover, the finding of the court, that the interest on the monthly balances' in favor of Chandler, from December, 1865, until October, 1878, amounted to two thousand seven hundred and ten dollars, is not borne out by the testimony." The finding in the judgment of the court was not sustained by the evidence, because the testimony did not show that they were interest-bearing, and it also showed a miscalculation.

As we understand the judgment in the case, a reversal was ordered because the finding was not sustained by the evidence, and the cause was remanded for further proceedings according to the views expressed in the opinion.

Certainly, this order of the court left the inquiry as to interest open, as if no trial had been had on it. The plaintiff was at liberty in a new trial, if in his power, to show that the balances were of the kind which bore interest. The offers of the plaintiff which were ruled out were made with this view, that is, to show that the balances were of the character which entitled him to have interest on them: C. C., sec. 1,917. The court should have allowed these offers. In our view, the cause was open for a new trial, subject to the views expressed by the court in the cases of Chandler v. People's Bank, 61 Cal., 396; S. C. I., 401.

This court having reversed the judgment because the testimony was insufficient to sustain the finding on any material point, can

not direct what judgment should be entered. If it did this, it would be finding facts, which it has no authority to do. That is the province of the court below, with which this court cannot interfere. Where, under such circumstances, the cause is remanded for further proceedings, unless the order of this court is restricted, the cause goes back to the superior court to be retried, subject to the views expressed by this court.

The court erred in its rulings in excluding the offers of plaintiff, and therefore the judgment is reversed and the cause remanded that there may be a new trial, as above indicated. SHAPSTEIN, J., and MYRICK, J. concurred.

No. 9,632.

SLAVONIC ILLYRIC MUTUAL BENEVOLENT ASSOCIATION

V.

SUPERIOR COURT, Etc.

Department Two. Filed August 12, 1884.

ORDER AFTER FINAL JUDGMENT APPEAL-CERTIORARI.-An order of the court, direct ing certain money, which had been paid into court in satisfaction of a judgment, to be retained by the clerk, until proceedings were had for the purpose of ascertaining who would be entitled to such money, is a special order made after final judgment, and as such is appealable, and therefore not the subject of review by certiorari.

APPLICATION for a writ of review to the superior court for Santa Clara county. The opinion states the facts.

Burt & Pfister, for the petitioner.

T. II. Laine, for the respondent.

THE COURT. This is an application for a writ of review. In an action brought by petitioner against one Mullinary to recover the amount due on a promissory note, judgment was rendered in favor of the petitioner for the amount due thereon, and executions were issued. The note had been assigned by one Marinovich to said petitioner. After the rendering of the judgment, it was claimed on behalf of Marinovich that at the time of the assignment he was an incompetent person, by reason of insanity. The defendant in that action paid the amount of the judgment to the clerk of the court, and the court ordered satisfaction of the judgment to be entered and the money retained by the clerk, to the end that proceedings might be had for the purpose of ascertaining and determining whether tho petitioner or the guardian of Marinovich would be entitled to the

money.

We are of opinion that the order was a special order made after final judgment, within the meaning of subdivision 3, section 939, code of civil procedure, and appealable, and therefore not the subject of review by this proceeding.

Order to show cause discharged and application denied.

No. 10,967.

PEOPLE v. MURRAY.

In Bank. Filed August 12, 1884.

TAKING FEMALE MINOR FOR PURPOSES OF PROSTITUTION. Evidence held insufficient to sustain the judgment,

Appeal from a judgment of the superior court for Tehama county, entered upon a verdict convicting the defendant. The opinion states the facts.

Yale and Ashurst, for the appellant.

Attorney General, for the respondent.

THE COURT. The defendant was accused by information of taking from her mother a female under the age of eighteen years, for the purpose of prostitution, under section 267, penal code. There was no evidence that the infant was taken from the charge or custody of her mother.

Judgment and order reversed and cause remanded for a new trial.

No. 9,528.

HERZOG V. JULIEN.

Department Two. Filed August 13, 1884.

NEW TRIAL-CONFLICT OF EVIDENCE.-Where the evidence is conflicting, an order granting a new trial on the ground that the verdict was excessive, not sustained by the evidence, and contrary to law and evidence, will not be interfered with.

APPEAL from an order of the superior court for Siskiyou county, granting the defendant a new trial. The opinion states the facts. Laura De Force Gordon, for the appellant.

Nichols & Abels, and Warren, for the respondent.

THE COURT. Action to recover damages for an alleged malicious prosecution. The jury gave the plaintiff a verdict for twelve thousand dollars. The court below granted a new trial on the ground of excessive damages, and because the verdict was not sustained by the evidence, and was contrary to the law and evidence. The evidence was conflicting as to the want of probable cause. In case of conflict, it has been held by this court that it would not interfere with the order of the court below granting a new trial. Fu Dickey v. Davis, 39 Cal., 565, the court said: "In this court, when there is a substantial conflict in the evidence, we decline to set aside a verdict or finding of facts as being contrary to the weight of evidence, solely because we have had no opportunity to observe the manner of the witnesses, and to decide upon their credibility. But this reason does not apply to the district judge-and though it is the peculiar province of the jury to decide upon the facts submitted to