Having no right to enter upon that possession, they could initiate no right in themselves by their attempted relocation of the mine. The right to locate, or relocate, a mining claim depends upon the right to enter upon the land where the mine is situated at the time the location is made. Without such right of entry the location is void. Location confers no right of entry unless such right of entry existed at the date oflocation. Belk v. Meagher, 104 U. S. 279. The testimony of the defendants shows that while in the possession of this mine they extracted and removed therefrom 553 tons of ore, which they converted to their own use. The same testimony shows the net value of this ore to have been about $2.50 per ton in the mine, allowing for extracting and reduction. There is evidence hi the case which might bring the measure of damages within the Severer rule laid down in Wooden- Ware Co. v. U. S., 106 U. S. 432,1 Sup. Ct. Rep. 398. It is in evidence, undisputed, that plaintiff, by its well-known agent, remonstrated with defendants and denied their riglit to locate the mine or work UpOD the same, or remove ore therefrom, and constantly asserted plaintiff's· rights. And finally, plaintiff was compelled to bring this action to dispossess defendants. I have, however, adopted the measure above indicated, allowing, the defendants the cost of extraction and reduction, non ClJ1Ujtat, however, but that plaintiff could have extracted and reduced this ore at less expense than it was done by defendants. . There must be judgment for plaintiff for possession of the mining ground described in the complaint, together with the sum of $1,382;50 damages for ores removed and converted, and fot costs of this action, and it is so ordered.
et al. v.
(Circuit Court, E. D. Mi88ouri, E. D. April 25, 1888..
ATTACHMlIlNT-l'EOPRRTY SUBJEOT TO-PURCHASE PnIOE.
Rev. St. Mo. § 2858, providing that personal property shall In all cases· be subject to execution on a jud,gment obtained for the purchase price. unless found in the hands of a purchaser for value without notice, does not authorize the seizure of personalty which has passed to an assignee for benetlt of creditors, under an assignment valid as far as he is concerned, on an attachment against the assignor.
At Law. Intervening petition of Gus. Lehman, assignee of H. C. Eagon against John W. Emerson, United States marshal. Plaintiffs, John H. Boltzet al., brought suit by attachment against defendant H. C. Eagon, and caused it to be levied on property which had been conveyed by the defendant by a deed of general assignmentto Gus. Lehman, as assignee for the benefit of creditors. The assignment having been sustained by the verdict of a jury, plaintiffs claimed that they were at least entitled to hold under the attachment certain portions
9f the attached property otigina11y sold by them to the, defendant, which
paid for at.the date oitha !Issignment and at the date of Suchclainl was base¢! on section 2353, .Rev. St. Mo., the which is stated in subs.tancein the opinion of the .COUltt. Lee &l' EUia, for ·plaiJ;ltiffs. . H. W·.Bond and Jamea I., Lindley, for intervenor;
THAYER,J., (orally.) In the rpatter of the intervening cIaimof Gus. Lehman, assignee, in the case of Boltz. and others against Eagon, (the jury having fouud that the a9signment was not fraudulel}.t, so far, at least, as · the assignee is concerned,) the, queation arises whether the attaching creditoll!I'Can hold as against thea8signee that part of the assigned property ,that was purchased from themselves, on the ground that the attachment 15uit was brought to recover the purchase price of such property. The claim is based solely on section ,2853, Rev. St. Mo., which provides, in substance,' that personal property shall in all caSes be subject to ex.ecution on a judgment obtained for the purchase. price, and shall not be exempffrom such execution unless the property. is,found in the hauds ofa purchaser for valu,e, who had no notice at .of his purchase · ofan claim for the purchase money. . Tbequestion to be determined is whether property can .be taken from an assignee, by virtue of this section, under a writ of attachment or exeof the property, ·cution issued against the assignor' for: the purchase, that.haiSpassad to the assignee by virtue of a general assignment. There ·ate:0nlythreereported <lasesin tbiS$tate which appear to me to have an any bearing on the question, and neither of them can be said authoritative determination of the point at issue. I refer, of course, to the cases of Parker v. Rodea, 79 Mo. 88; MiU Co. v. Tttrner, 23 Mo. App. 103j and Statev. Orahood, 27 Mo. App. 496. My own convictions, after considering the matter, are very strong that section 2353 was not intended to interfere with the general. of the act concerning voluntary assignments, and that it Elhould not be so construed as to interfere with the policy, of that act.'. The state courts will, in all probability, so hold, when the precise question confronts them that is raised in this case.,anassignment iain. trust 'created for the common benefit of cred,The l.awfavors the c,rellfi.onQf such trusts, and carefully regulates their.administration. It also prohibits preferences, and provides for a pro rata distribution. among creditors of all funds realized from the sale of the assigned effects. WHatever property to an assignee under an assignment (that is not incumbered with a lien) by virtue of the assignment,tlcUshe1d by the assignee for the common benefit of creditors. Section 2853 certainly; does not create a lien in f8,vor of the venpurchllseprice of goods sold and delivdor of peraQUalproperty provides that tQey cannot be claimed as exem pi by the vendeeot by any. transfereewhQ buys with notice that the purchase price is unpaid. All the Cases cited are in accord on this proposition. If it should be held that personal property in the hands of an aSflignee may for the purchase price ina suit brought against .the assignor, a be
species of preference would be created, which, as it appears to me, would be at variance with the policy of the assignment act. In'some cases such rule, if adopted, would practically defeat the assignment; creditors instead of participating ratably in the distribution of the'assignedeffects, would take that portion of the trust-estate in specie, which they could identify as having been originullypurchased from themselves, and had not been paid for. In this manner a new method of distribution would be inaugurated, which is at variance with the provisions of the assignment law; and in many cases such practice would lead to great confusion in the administration of assigned estates. I am or the opinion that section ,2353 was not intended to have such effect. It should be construed, according to my view, in conformity with, and in subordination to, the policy of the assignment law, so as not to defeat its provisions; that is to say, it should be held that,when personal property has passed to an assignee under an assignment that is valid so far as the assignee is concerned,such property cannot be seized under an execution or attachment against the assignor merely by virtue of the pro.visions of sections 2353. I shall so hold, and accordingly overrule the claim of the attaching creditors to' a portion ofthe property based upon that section. Judgment will therefore be entered ·on the verdict of the jury to the effect that the assignee is entitled to all and singular the property levied nponby the United States marshal that was, covered by the assignment, and was found in his hands; and an order will be made on the marshal directing him to turn the property over to tbeassignee. An order will, also be made requiring the receiver appointed in the Case to file a final report of the collections he bas made on choses in action in his hands, and, after he has filed such report, he will be ordered to tum over what property is in his hands to theassighee.
(Oi"rcuit Oourt, D. Minneaota.
DAMAGRS-BREAOH OF CONTRACT OF AFFREIGHTMENT.
Where plaintiff had a contract to transport a of coal by water tor defendant at an agreed price. the. coal to be delivered to him by defendant at a designated point. and defendant failed to deliver it,plaintiff's messl'mi of damages was the difference between the cost of transportation and the cOn, tract price.
2. SAME-EVIDENC:&-RECOUPMENT. An offer of evidence by defendant. not for the purpose of showing freight earned by plaintiff in order to recoup, but to show what plaintiff's boat'"wal! wa.s properly rejected. [, said to
PRINCIPAL AND.. AGENT-UNDISCLOSED PRINCIPAL-PARQL EvwJll1'f()E.
The right to show by parol evidence that a defendant was anundiscio.ed principal in a cuntract made by; a third person is not doubtful ' ,
Motion for new trial.