and the remarks of the judge cC?ncerning it are dicta. Notwithstanding our high regard for the supreme court of Iowa, we are unable to concur in the view expressed by Rothrock, J., on this question. The motion to remand is overruled. LOVE, D. J., concurs.
MOSELY and others.
(District Oourt, D. Oolorado. July 25, 1881.)
Where property under seizure is delivered to a claimant on hill giving a bond conditioned that he would pay the value of the property into court if it were condemned as forfeited by the final decree, held, that the liability of sureties on the bond is fixed on the rendering of such a decree, though the libel on which' it was rendered was amended subsequently to the execution of the bond.
UNITED STATES V. MOSELY.
The bonds are in the usual form; they may be said to consist of three parts:
(1) The bond proper, by which an absolute obligation is created to pay to the United States a specified sum of money. (2) A recital setting forth that a libel of information, etc., had been filed; that the property was in the custody of the marshal, and their appraised value. (3) The condition or clause of defeasance to the effect that if, on the condemnation of the goods, the obligors shall pay into court their said appraised value, then the oblig&tion to be void, etc
With regard to the libel of information the recital in the, bond further states that it has been filed on behali of the United States aglltinst 1,650 fur seal-skins, ''for reasons and causes in said libel oj information mentioned." It is claimed by the defendants that the effect of this clause is to restrict the obligations of the bondsmen to a liability for the penalty of the bond in case the goods shall be condemned, for the reasons and causes mentioned in the original libel; and that, inasmuch as they. were condemned for reasons and causes set forth in an amended libel, the bondsmen are discharged. But the nature and extent of the obligation assumed by the bondsmen are to be ascertained, not from a clause in the recital which is no essential part of the instrument, and which might have been entirely omitted, but from the terms of the condition or clause of defeasance which specify under what circumstances the obligation shall become void. These are:
"(1) In case the said 1,650 fur seal-skins shall, by the final sentence, decree, or judgment of the said court, be oondBmned as forfeited " and (2) if the said Mosely, etc., their heirs, etc., shall thereupon pay into the said court the sum of $6,189.50."
It is plaiD. that the obligation to pay IS conditioned upon this con· demnation of the goods as forfeited in the suit then pending. But it is not conditioned upon this condemnation for the precise reasons and causes in the original libel of information mentioned. In the original form of bonds to the court for approval the words "for the causes in said libel set forth" were added in the condition of the bond, but they were stricken out by direction of the judge, as appears by his initials in the margin. This conld only have been done for the purpose of avoiding the very question which is now raised, and of exacting from the claimant to whom the goods were to be delivered an obligation to pay their appraised value in case v.8,no.9-44:
they should be condemne.d by any decree which the court 'might lawfully make in the suit. In the bond given for the vessel a. prillted form was used, which -does not contain the "words inserted in the manuscript bond" and stricken out by the judge as above stated. No question is or cS:n be raised as to the right and duty of the court to allow the amendment to the libel. The decree stands, therefore, as the final decree of condemnation, lawfully made, and thus the very contingency has occurred upon which, by the terms of ihis obligation, the bondsmen were to become liable. But, independently of 'the foregoing consideration,. I enterta.in no ·doubt that the settled rule of the admiralty is that when a bond has been given for property under seizure, and the property has. been delivered to the claimant, the bond stands in the place'of and repremight sents the rem, and that whatever amendments the fully allow if the property had remained in the cnstody of the mar: shall, it can equally allow without affecting the liability of the bondsmen.. Any other rule would be incon'Venierit and pernicious. Libels are often necessarily drawn in haste, and with an imperfect ·or mistaken conception of the facts; A bond for value niay be tendered at once. If this be done and the vessel restored to the claim·: ant, and if the lib'el1al1tis from that'moment deprived of all right to amend, except on pain of 'discharging the oortdsmen and thus rani. dering the litigation: fnlitless,' it is evident that the grossest injustice might be done in caees where the property has been rembved frbii:l the jurisdiction and nq reseizure can be made. Thesuggestioll that the claimant and his sureties have agreed to be responsible only in case the property is condemned, "for the reasons and causes mentioned in the libel," involves a petitio principii. It is more accurate to say that they have agreed-to be responsible in ease ,the <lourt, in the dueand _ ordinary courS8 of procedure, shall condemn the property; and the allowance of proper amendments must be deemed to have been contemplated asa possible or probable inci-dent in the cause. In the case of Newell v. Norton, 3 Wall. 257, the libel had been amended by dismissing it as to a pilot who had been improperly joined ,ina suit against the master and vessel. It was .argued then, as now; that the sureties "borind themseltes with reference to this libel; that their contract was stricti juris, and could not be extended by implication." But the court summarily overruled this objection, observing, in the language of Mr; Justice Story in The Schooner Harmony, 1 Gal. 123: "Every person bailing such property
UNITED STATES V. 1I0SJilLY.
is considered as holding it subject to all legal dispositions of the court." In the ease before Mr. Justice Story the, amendment moved for was the addition of a new substantive cause of action against which the statute of limitations had run, and it was disallowed fOl'that reason. With regard to the objection that the rights of the sureties might be affected, he says: '
II I will only add that a third objection, that it might affect the rights of the sureties on the bond given for the property, has not been considered of weight in any cases at common' law. When the property has been delivered on bonds it is too much to contend that the rights of the court can be increased or diminisned by that circumstance. Every person so bailing the property is considered as holding it subject to all legal dispositions by the court. .A fortiori, the objection would, with great difficulty, find support in a court exercising admiralty jurisdiction."
In The Maggie Jones, 5 Cent. Law J. 263, it was insistedthat·an amendment submitting the name of one Bradley to be added as eolibellant discharged the sureties. But the court says:
"This position is untenable. I regard it as settled by the case of Newell v. Norton, 3 Wall. 257, that the undertaking of the surety is practically co-extensive with the liability of the vessel in that particular action, and subject to any amendment which tIle court has power to make. The addition of a new party, or, indeed, any other amendment which the conrt has power to mak,e in,the original case, has usually been held not to affect the undertaking of the surety." "
In the case of Evers v. Sager, 28 Mich. 47,the court says:
"If the court possessed the power to order or allow such an amendment, irrespective Qf the stipulations of the parties, the sureties would have been bound by its action, because their obligation must'be understood as contem',- ' plating a possible exercise of such power."
other authorities might, no doubt, be fonnd on thiiJ point tinder consideration. Enough have been cited to establish that where property under seizure has been delivered to a claimant on a bond for value, conditioned he will pay the value into court if a final decree of condemnation be rendered against the property, his liability 'and that of his sureties is fixed as soon as the court has legally rendated such a decree in the action. And it is immaterial whether the dectee has been rendered on the original 'libel, or on a libel' that has been legall.v and properly amended, subsequently to the execution of theb6nd.: .
and others v.
(Circuit Oourt, .D. Uolorado.
June 20, 1881.)
One cannot take advantage of his own wrong.
Where prospectors on the public domain, on discovering mineral, set up their discovery stake' and fully complied with the requirements of the state law, except in a single particu.lar, held, on'an application for an. injunction to restrain the defendants who had pulled up t,lJ.e stake, entered into possession, and located the claim, from working the claim and removing ore therefrom, that, as the plaintiffs were prevented by the defendants from complying with the statute in that single particular, their rights would not be prejudiced thereby and the injunction would' be granted.
Application for Injunction. M. B. Carpenter, Wells, ,<t Macon, for plaintiffs·. Markham, Patterson, Thomas <t Campbell, for defendants. MILLER, Justicfl, Plaintiffs, while on the public domain, discovered mineral within about two f!'let of the surface of the ground, and on .the of June set up their disoovery stake, containing the name 'of the lode,-Hawk,-the date of the discovery, the name of the discoverers, and the other matters substantially as required by law. On the thirtieth day of June,la days thereafter, the defendants pulled up the stake so set by the plaintiffs, threw it away, entered into possession, and went to work in the 'same hole, arid having sunk' the Bhaft to' the required depth, made a " location of the claim.' . Plaintiffs brought their action at)aw for the possession, that they were the discoverers thereof, had. planted their discovery stake, and within th!3 days ltllpwed by law in which tO"complete th,e sinking of their prospect aha!t and make their forma,llocation, .tiW defendants wfongfoJ}y entered and hold the olaim; and plaintiffs an injunction, in aid of their action at law, to restrain the d,efendants from working the claim and removing ore therefrom. The affidavits filed in support of the motion for injunction show that in consequence of threats by defendants, plaintiffs were deterred from entering on the claim and prosecuting the development work within the time required, and that,. thongh they procured a survey to be made upon which to make out a location certificate, thiswas done fecretly, by the officer who made the survey for defendants. It is claimed for defendants that the plaintiffs were not in actual possession ot the claim between the seventeenth day of June, the time they
set their stake, and the thirtieth of June, when defendants entered; and further, that the notice upon the discovery stake of plaintiffs was not sufficient, in that it failed to give the course of the lode. The law of the state gives 60 days after making discovery of mineral in which to sink a shaft 10 feet in depth. The main object of the 60 days' possession, it seems to the court, must bato allow time to discover the course of the lode in order that the location may be made thereon. Counsel for defendants made an ingenious argument to show that the locator during those 60 days, to 'hold his right, must remain in continuous actual possession of 'the ground. The court does not so hold. If the discoverer put up a stake at the discovery, giving the name of the lode, date of discovery, and notice of his intention to locate the claim, this is equivalent· to 'actnal p08session. Otherwise the statute serves no t1sefnl' purpQse" The of the statute must be that the setting up of'the discovery ,to actual staite with the notice thereon, as required; is' possi3$sion for the '60 days, within which he may to the next step, to-wit: sink the discoveryshaftto'the d6pth 'Of 10' feet, Th'at have survey m.ade,D;1ark the'1ines, and make the plaintiffs did not sink theehaft to the required'depth 101'10 feet within the 60 d!l.ys, cannot prejudice their tight in thisi-(\aee, for the reason tha.t the defendants prevented them 'frtnn'S6'dbitig by taking possession of their excavation. Plaintiffs could 'not prosecute their work while the defendants were in the occupaney,' andthle is reason for not sinking the shaft 'within the time prescribed:' ., . The injunCtion will be awarded.
CROSSMAN and others v. PENDERY and others.
(Circuit Court, D. Colorado.
MINERAL IN PLACE-DISCOVEllERS-LoCATORS-TITLE.
Priority in discovery gives better title to mineral in place than priority in location and continuous possession. .
T. A. Green, for plaintiffs. Wm. Harrison, for defendants. MILLER, Justice. This causo is submitted upon an agreed state of facts, to the eJlect that the ground in controversy is covered by the surface lines of the Orion claim, located by plaintiff, and also of the Pendery claim, located by defendant; that both locations are reg-