29 F. 813 -

IN RE S'rEW ABD.

818

:En'

((Jlreu£t,OO'llll'I, 8. D. NtJUJ York. February 11,1887.)
WITNESS -MAsTER APPOINTED IN ONE DISTRICT COMPELLING A'M'ENDANCB IN ANOTHER.' . .' . . :

Th,eUnited .States circuit c()Urt in one district has power, under rule 78 iJ;l equity, .to issue a subpoona requiring:. a person living in that district to appear and testify before an examiner. or before a maste! appointed in anl)ther circuit, and who is discharging the duties of his office ip the former and may also, under that rule. the witness for refusing to' obey the.sllbpeena. ' ,

In EqUity.' Robert G. IngersoU, for the motion. Tlwrnas Thacher, against the motion. SHIPMAN, J. The circuit court of the United States for the district ofIndiana appointed A. J". Ricks,Esq., special master, to take and state the accounts of a receiver:jn two cases pending before said court, and, among other things, to inquire ,and report into the amount, consideration, and ownership or any receiver's certificates which may have been iss,uedby.: said officer. ,The p\aster found it necessary to take thetestimQny in the city of New York.afsome witne8ses living in said city, obtained an orderofthis court for asubprena, which was du1y issued by theclefk, and was duly served upon Herbert Steward, ,a perso? has his legal domicile in Connecticut, but who lives in this district. ,Steward personally attended before the master on the day, but not at the hour hour, named in the subprena, tl:nd promised to attenda"ain appointed by the master, but did not do so. By or4er of this court he was again Bubprenaed to appear and testify before the master, at a named place in' ,said city, and on a named day, and, in,de(lItult of was directed to appear before this court on another day to show cause why he should not be punished for contempt. Thesubprena and notice were duly served, Steward did not obey the supprena, the parties have now appeared, and the question at issue is as to the power of this court, by itssubprena, to compel Steward's attendance before the special master appointed by another circuit court in a cause pending therein. Itis and the has been in accordance with the decision, that a circuit court in one district has power, under the sixtyseventh ruie in equity, toaPl?oihta special examiner to take testimony in another circuit. Railroad Co"v. Drew, 3 Woods, 691. Tbedecision is founded upon the literal language of the rule,and is justified by the fact th,at a different would prevent th'e conv;enient taking of wstimoIl;Y. If circuit such power,! am opinion that under rule 78 this court has power to issue a 8ubprena commanding a perthis district to appear and testify before an examiner, or son and who is before a tnast,er who has beert, aJuminted by ano.ther, the duties of his office in this district, 'and is' also enabled

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under said rule to punish such person for refusing to obey thEl subprena. A power in the circuit .ap':lexaminer or a master to take testimony, beyond the jurisdiction of the court which appointed him, would not be·very· useful unless. the COUl't within' possessed also the power to compel the attendance of witnesses before such officer; Rule 78, ,which was' passed under the generalauthority of the court to prescribe "the modes of taking and obtaining evidence" to be used in equity suits,recogpjzes such power. I find that said Steward has been guilty of contempt, but, as the object of the hearing the opinion of tpe c.onrt upon ·thequestions of law, I shall not Impose a large fine; but I direct that he pay,as a penalty for said disobedience, the costs and the disbursements pertaining to the disobeyed subprena, and to this proceeding for contempt, to ,be taxed and allowed by the clerk.
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11.

FuLLER-and' 8J;lother

(Dist;ict

HARRIS.

1887.)

..

i

MINES '&'ND'MINING--CLAIllS-REcdin'.,:uiLoCATION-,-REV. ',ST.rr.

claim by the employes oftha 'claimant; there the minmg district requiring a record oUheJo9ation. Subsequently thll claim was relocated by theowiler so as,to cqnfoJ;m to the r,equiremept$ofthe act of congress. Held-that. as the-re was a real locatioilofthe'c1a:iD1 by the employes of the claimant,his title dated back to the firSt location.' ," 8.,;8.urJil...,..WHAT 010AIMANT ENTJ;TIJED TO"",,,Tm!lsPABs-DAltAGES-REv.,ST. U. S. § 2822. " , . . " By ,Rev.'St. U. ,S; ;t11e 1,ocator of a mining claim is entitled to hold' and'enjoy the ''Profitshicluded within the; boundary lines of his claim. and, iUn possession, of the claim in person oJ; ,by agent, anyone ,,!ho e1;1ters upon and , lIable In damages asa trellpasser. ,'
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2.

B. § 2324.' A record made in a memorandum book'of the location of, a placer mining claim, without designating any natural Q,bjeot or monument, or any designation OJ; work. by ",,1).ich t1).e placer claim could be identified. the memorandum' book being, retoJn.ed· in the possession of the locator of the claim; heltl'to be not in compliance with section 2824. Rev. St. U. S., and of 11Q legal force, 8S· a recorc;l.. " ,,,,: . .

S.uUIl-LOCATION-No

At the thrie of the locatio'n at a qpartz

011' ,TITLE.

i.EsTOPPEL:-AmnssImr'IN" RECEtl'T-ONE EMPLOYED To LOCATE MINING . CLArMS...;,.EMP1.01l'E:B'S LOCATION PmOR TO .HIs OWN. '

• (! ' , 0n.e who.was ep1ployed by a!l0ili,erJo llJoapect for m}ning claims, ,. in hiS rec.eJpt, for wages receIved' for ,saId work. certIfied that hIS employer's "('claim'was the first one located'in:the'neighborhoad; and'tnerooponhis emI,: ployerpr,ocured la.borers. and, expen!llldwoney and ll!'borin tl?-e " ' "mine. .Held, the eD\plqye, was estopped from upito,pnor claIm In " b.imself;and that it immaterialwnether the ,admission in'tlie receipt was "., r, true or false, the fltctof:its .having been· acted upon being conclusive upon '[ the party ,making " " , " '
  

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