PEOPLE, for the Use, etc.,
BOYLAN and others.
December 4, 1885.)
(Circuit Oourt, D. Oolorado.
ON ADMINISTRATOR'S BOND-CODE COLO. § 95, SUBD. 14. A suit on an administrator's bond is not a suit on a written instrument or writing for the direct payment of money, and a writ of attachment in aid of such suit cannot be allowed under subdivision 14 of section 00 of the Code of Colorado regulating attachments.
At Law. J. N. Baxter and F. M. Hardenbrook, for plaintiffs. 1M. B. Carpenter and H. Riddell, for defendants. HALLETT, J. Section 152 of the act relating to wills (Gen. St. 1058) provides that bonds of. administrators "may be put in suit and prosecuted against all or anyone or more of the obligors named therein, in the name of the people of the state of Colorado, for the use of any person or persons who may have been injured by reason of the neglect or improper conduct of any such executor or administrator as aforesaid; and such bond shall not become void on the recovery thereon, but may be sued upon from time to time until the whole penalty shall be recovered." Pursuant to that section this action is brought on the bond of Thomas Boylan, as administrator of the estate of Martha Boylan, deceased, to recover the sum of $1,087.18, alleged to be due from that estate to Levi M. Bates and others. The bond is in the usual form, with conditions as follows:
Alleging that the suit was brought on an instrument in writing for the direct payment of money, plaintiffs procured a writ of attallhment in aid of the suit under the fourteenth subdivision of section
PEOPLE '/I. BOYLAN.
95 of the Code regulating attachments. That clause is, that "in all actions brought upon overdue promissory notes, bills of exchange, other written instruments for the direct payment of fuoney, and upon book-accounts, the creditor may have a writ of attachment issue upoh complying with the provisions of this section." And upon the issue now made the question is, whether an administrator's bond is a "written instrument for the direct payment of money" within the meaning of the act. Looking only to the penalty of the bond, it certainly is an instrument for the payment of money, but when we come to the coudition, which is usually regarded as the substantial part, there is no provision for paying any sum to anyone. The bond may be a security for the payment of money, as where goods of the estate have come to the hands of the administrator, and money has been obtained therefrom, and the county court has distributed the fund. But that is in the due administration of the estate for which the bond is a security, and not because of any express provision of the instrument. And certainly the bond is not in any way similar to t.he instruments mentioned in the statute. In respect to the manner of payment, promissory notes and bills of exchange are distinguishable from many other contracts in that they are for a definite sum of money"payable absolutely at a specified time. Upon the principal nosciter a socies, the "other instrument" men· tioned in the statute should be of the class of promissory- notes and bills of exchange in respect to the quality of direct payment. Inasmuch as the word "overdue" in the statute is applicable to the "other instruments" as well as to promissory notes and bills of· exchange, such instruments must be of a character to· become overdue, and an instrument of that character must be for a fixed sum payable absolutely at a time specified In this feature our statute differs from the statute of California, which gives the writ of attachment "upon a con· tract, express or implied, for the direct payment of money." In that statute no contracts are mentioned as falling within the description of contracts "for the direct payment of money," and nothing is found as to overdue contracts. It cannot, therefore, be said that decisions of the supreme court of that state upon the statute of that state ought to control here. It is to be observed, also, that in the only case cited from that state in which the question was discussed the views expressed were not altogether satisfactory to the court. Hathaway v. Dat,is, 33 Cal. 161. And the opinion will hardly be more convincing to the profession than it was to the court. The word "direct" is of large use in the language, and it has been adopted into the law in many relations. We have direct descent, direct taxes, direct interest, direct route, and so on, until we have come now to direct payment. Any effort to assimilate its meaning in all the places and connections in which it may be placed must fail for obvious reasons. One mean· ing of the word, as given in "Vebster's Dictionary, is immediate, ex-
press, unambiguous, confessed, absolute. In my judgment this is clearly the sense in which it is applied to payments. A direct payment is one whfch is absolute and unconditional as to time, amount, and the persons by whom and to whom it is to be made. And a written instrument which provides for such payment is one which expresses those terms fully. It is needless to point out the difference between such an instrument and an administrator's bond. The attachment will be dissolved, and the property seized discharged.
McEvoy and others v.
(Circuit Court, D. Colorado. December 7, 1885.)
MINES AND MINING CLAIMS-LOCATION OF CLAIM-NOTlCE-DESCRIPTlON-RIGUT TO AMEND.
The first record of a mining claim is usually, if not always, imperfect, and it is the policy of the law to give the locator an opportunity to correct his record when defects are found therein, and when it is so corrected the amendment takes effect with the original as of the date thereof.
At Law. Patterson Thomas, for plaintiffs. H. M. Teller and Charles J. Hughes, Jr., for defendant. HALLETT, J. Ejectment to recover a mining claim called "Little Giant,"' located by plaintiffs on the public lands, in the month of January, 1880. Defendant asserts title to part of the same ground under another location made in the month of October, 1879, and called "Durant." As it is of earlier location, the latter must be of superior force, if it was regularly made and properly maintained to the time this suit was brought. That the locators of the Durant went upon the ground in August, 1879, and opened the vein in the manner and to the extent prescribed by statute is fully shown. It seems that the vein crops out in places on the surface of the mountain in a way to show it is a strike for a long distance. Before Au· gust, 1879, two locations had been made on the vein in the lower part of the mountain; of these locations, the one furthest north was made by the locators of the Durant, and called "1,001." Following that in a southerly direction was the Spar claim, located by Philip W. Pratt and others. Near the southerly end of the Spar claim the vein came to the surface, and there, with the consent of the owner of the Spar, the locators of the Durant made their discovery opening, a cut 13 feet or more in depth. To enable the Durant men to put their discovery in that place, the Spar owners gave them permission to move the Spar stakes to the north, so as to exclude from the Spar claim the ground where the discovery cut of the Durant was made; and there is evidence to the effect that this was done. Some witnesses, however, testify that the Spar stakes remained in their original posi. tion during the following winter, and perhaps a longer time.