But it is necessary to distinguish between the act and fault of the complaining party. It is no defeuse to an action of this kind that the act of the deceased might have contributed or did contribute to the injury. It must be by his fault, not merely his act.

Was there negligence on the part of defendant? or, in the language of the statute, was there wrongful act, neglect, or default on its part?

Plaintiff alleges in her complaint: "That defendant. wrongfully and carelessly neglected to keep in good and safe condition and repair [said mine], by building and maintaining in its tunnels, shafts, and excavations proper and sufficient supports and pillars, to prevent said tunnels and excavations from caving in," etc.

This is a broad allegation as to the mine generally, but the question in the case is as to the point only where the accident occurred. This was neither a tunnel nor shaft, but an open cut, and the work at this point consisted in blasting and prying down the rock, not in supporting it in place, and the evidence of defendant shows that this was the only practicable way of working the mine at this place, and there is no conflicting evidence to this whatever.

In order to recover, the plaintiff in an action of this kind must show that the act complained of was caused by the wrongful act, neglect, or default of defendant. It must also appear, by implication or otherwise, that the injured party did not in any degree contribute to the injury by his fault.

All proceedings, rulings, or instructions which conflict. with, or even ignore, these last two propositions are erroneous in all trials. Tested by this rule, the statement on motion for a new trial in this case shows good, broad, cogent, decisive, and most ample grounds in support of the motion.

The judgment and order denying a new trial must be reversed, and the cause remanded for a new trial, and it has been so ordered.

PINNEY, J., concurred

A. T. REPTS. I-31

IN RE WALDRIP.

IMPRISONMENT IS LEGAL, UNDER SECTION 19 OF THE HABEAS CORPUS ACT, where the commitment, which in this territory is a certified copy of the judgment, fully shows the character of the court rendering the judgment, the names of the judge and clerk, and the date of the judgment, although such judgment does not contain the usual recitals.

RETURN TO WRIT OF HABEAS CORPUS, WHICH SETS OUT IN FULL THE RECORD of the proceedings under which the petitioner is held, is a full and complete answer to every allegation contained in the petitioner's application for his discharge, and being admitted as true, negatives the

same.

APPEAL from the district court of the third judicial district, county of Mohave. This was an application for a writ of habeas corpus. The opinion states the facts.

A. C. Baker, for the petitioner.

A. E. Davis, for the respondent.

By Court, FRENCH, C. J.:

On the petition of said Waldrip, a writ of habeas corpus was granted at the January term against C. V. Weeden, in charge of the territorial prison at Yuma, where the said petitioner was imprisoned, returnable at the adjourned term, to show cause for holding petitioner in custody. The petition claiming that the commitment--which in this territory is a certified copy of the judgment--was defective and insufficient in law to warrant the detention of the petitioner in custody.

Section 2218 of compiled laws, being section 19 of habeas corpus act, reads as follows:

'It shall be the duty of such court or judge, if the time during which such party may be legally detained in custody has not expired, to remand such party if it shall appear that he is detained in custody: 1. By virtue of process issued by any court or judge of the United States in a case where such court or judge has exclusive jurisdiction; 2. By virtue of the final judgment or decree of any competent court of criminal jurisdiction, or of any process issued upon such judgment or deeree."

The commitment in this territory is a certified copy of the judgment.

The judgment in this case does not contain the usual recitals. But it is still a judgment under the section above quoted, and the commitment is a process issued upon such judgment, and fully shows the character of the court rendering the judgment, name of the judge, clerk, and the date of such judgment.

We are therefore of the opinion that the imprisonment of Waldrip was legal under both the first and second provisions of said section 19, as tested by the habeas corpus act.

But Weeden, the custodian of the prisoner, in his answer to the writ, returns the whole record of the court in the case, including the presentment of the indictment, the indictment itself, the demurrer thereto, affidavit for change of venue, the record of the impaneling of the trial jury, the action of the court at all stages of these proceedings, charge to the jury, and the verdict in the trial, and all the minutes and proceedings of the court thereon.

This return (which is unquestioned) constitutes a full, complete, and decisive answer to every allegation contained in the petition and application of petitioner, and being admitted as true, negatives the same.

It was ordered by the court that the writ be discharged and the prisoner remanded.

PINNEY, J., concurred.

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

TERRITORY OF ARIZONA,

JANUARY TERM, 1884.

TERRITORY OF ARIZONA v. VINCENTO CASIO.

IN PROSECUTION FOR LARCENY OF PROPERTY THAT DOES NOT EASILY PASS FROM HAND TO HAND, THE PRISONER'S EXCLUSIVE AND UNEXPLAINED POSSESSION of the stolen property, recently after the theft, is not only a circumstance to be considered as tending to show the prisoner's guilt, but raises such a presumption that he is the thief that the burden of proof is taken from the prosecution and laid upon him.

APPEAL from a judgment of the district court of the first judicial district, county of Pima, convicting the defendant of grand larceny. The opinion states the facts.

No appearance for the appellant.

Clark Churchill, attorney general, for the respondent.
By Court, PINNEY, J.:

The appellant was tried and convicted of grand larceny,. and sentenced to the penitentiary for the term of two years, from which judgment he appeals to this court, and assigns several grounds of error. Among others, the defendant