herein, visited the ground and apparently decided this legal question in favor of the respondents.

The appellants had already, on the twelfth day of July preceding, filed and recorded their claim with the county recorder. The territorial laws give sixty days in which to record these claims.

The laws of the territory require all the claims of this kind (lode claims) to be filed and recorded in the office of the county recorder of the county in which such claims are situate, and give, as before stated, sixty days to make such filing and record after their location.

But aside from all these questions, should the right of a party who has complied, in all respects, with the laws of the United States and the territory, and the rules and regulations of the mining districts, except in the particular before mentioned, be taken away for failure to comply with a district regulation which provides no penalty or forfeiture for its non-observance?

At a time when the right to mining claims rested mainly on local rules, and before the existence of many of the present federal laws upon the subject, the supreme court of California, in McGarrity v. Byington, 12 Cal. 431, said: "The failure to comply with any one of the mining rules and regulations of the camp is not a forfeiture of title. It would be enough to hold the forfeiture as a result of the non-compliance with such of them as make a non-compliance a cause of forfeiture."

In Bell v. Bed Rock T. & M. Co., 36 Cal. 219, Mr. Justice Sanderson, speaking for the court, says: "The objection taken to this instruction is that it directs the jury to find for the defendant, if they find from the evidence that the plaintiffs had failed to comply with certain mining rules and regulations without accompanying the same with a further charge, as to whether those rules and regulations declared a forfeiture as the result of such non-compliance. The failure of a party to comply with a mining rule or regulation can not work a forfeiture unless the rule itself so provides. There may be rules and regulations which do not provide that a failure to comply with their provisions shall work a forfeiture. If so, a failure will not work a forfeiture."

The same doctrine is announced in English v. Johnson, 17

Cal. 118; Mr. Justice Baldwin delivering the opinion, and Mr. Chief Justice Field concurring. It has also been uniformly held by the supreme court of California, that abandonment of a mining claim may be proved under the general issue, but that forfeiture must be pleaded. Dutch Flot Water Co. v. Mooney, 12 Cal. 534; Wiseman v. McNulty, 25 Id. 230; Morenhaut v. Wilson, 52 Id. 263.

The forfeiture mentioned in these decisions is not the common-law forfeiture, but a mining-claim forfeiture, that is, the loss of the right, previously acquired, to hold and work a mining claim.

It is worthy of remark that this line of decision occurred in California during the existence of the following statute: "In actions respecting mining claims, proof shall be admitted of the customs, usages, or regulations established and enforced at the bar or digging embracing such claims, and such customs, usages, or regulations, when not in conflict with the constitution and laws of this state, shall govern the decision of the action." Act, sec. 621, p. 2. The above enactment makes no mention of federal constitution or laws, and some have inferred that no federal laws concerning these public mineral lands then existed. This is not the case-the United States government simply forbore to enforce the laws and rights of the United States then existing as to these lands. It is also probable that the doctrine of state ownership of the mines, then extensively entertained, but long since entirely abandoned, had more or less to do with the terms of this enactment.

It was made applicable to trials in justices' courts.

It may be reasonably questioned whether the concluding words "shall govern the decision of the action" is a proper provision.

The decision of all cases, it would seem, should be governed by all the law applicable thereto and all the legal evidence in the case. Gradually the courts of California adopted the principles of this enactment, and the courts and many of the legislatures of other mining states and territories recognized them to a greater or less extent, and finally the congress of the United States recognized and adopted them.

The decisive character of the California enactment makes

the decisions of her courts the more cogent, so far as denying forfeiture under said local regulations is concerned.

The rule as to forfeiture above recited, to wit: that the prior locator shall not lose his right by failure to comply with a local regulation unless such regulation prescribes a forfeiture as a penalty of its non-observance, has been criticised in some instances, and in King v. Edwards, 1 Mont. 235, disapproved; but it has been recognized as a safe and conservative rule of decision in the nisi prius courts of this territory, tending to the permanence and security of mining titles, and we are not prepared to reject it in the present

case.

Judgment and order reversed, and court below directed. to enter judgment on the finding for appellants.

PINNEY, J., concurred.

ADDITIONAL CASES.

NOTE. The following decisions were found among the records of the court after the preceding portion of the volume was stereotyped, and for that reason they appear out of the order of date.

TERRITORY OF ARIZONA, RESPONDENT, v. MICHAEL KENNEDY, APPELLANT.

IN CRIMINAL CASE, COURT MUST COMMIT CHARGE TO JURY TO WRITING and read it to the jury, unless the defendant expressly waive his right to have it so given; and where this is not done at the trial, the error is not cured by subsequently reducing the charge to writing.

APPEAL from the district court of the first judicial district, county of Pima. The opinion states the case.

J. E. McCaffry, allorney general, for the respondent.

The act approved October 5, 1867, does not require that the charge shall be filed before the jury leaves the box; it is sufficient that it be written and filed.

The rights of the defendant have not been infringed; the charge is in writing and filed with the papers in the case.

The statute of October 5, 1867, was made to enable the defendant to except to any portion of the charge; no exceptions have been taken, and it is not claimed that the charge filed is not the identical charge delivered to the jury.

The decisions cited by counsel for appellant were made upon a law wholly different from this. Hittell's General Laws of California, sec. 1949.

The true intent of our laws in regard to proceedings in criminal cases is that the defendant can not take advantage of any informality which does not tend to his prejudice. Howell's Code, c. 11, sec. 223.