do not seem to have relied upon their demurrer, as if they were willing to yield up possession if a demand therefor had been made by the assignee in insolvency. In their answer they claim title in themselves adverse to the plaintiff, and give no countenance anywhere in the record to the belief that a demand, if made, would have been of any avail. Having contested the case upon the merits, on a claim of superior right to the property, it would seem as if a demand would have been useless, and that the case in hand comes within that class where no demand is necessary. Lamping v. Keenan, 9 Colo. 390, 12 Pac. Rep. 434. We cannot say that the verdict of the jury was contrary to the evidence. It was for them to determine the credibility of witnesses, the weight of testimony, and the force of all the circumstances adduced in evidence. They have done so, and we see no reason to disturb their verdict upon the special issues submitted to them. The judgment and order should be affirmed.

We concur: BELCHER, C. C.; HAYNE, C.

PER CURIAM.

For the reasons given in the foregoing opinion the judg

ment and order are affirmed.

(75 Cal. 192)

KAHN . EDWARDS et al. (No. 12,256.

(Supreme Court of California. February 29, 1888.)

LIMITATION OF ACTIONS-ACKNOWLEDGMENT-ORAL STATEMENT OF ACCOUNT. Defendants were indebted upon open account to a partnership, the assets of which plaintiff owned at the time suit was brought. Before the statute of limitations barred that account, the parties orally agreed upon the balance due, which defendants promised to pay. Plaintiff brought his action on account stated for such balance within two years after the agreement. Held, that the statute of limitations of two years (Code Civil Proc. Cal. § 339 subd. 1,) was not a bar to such action.

Commissioners' decision. Department 2. Yolo county; C. H. GAROUTTE, Judge.

Appeal from superior court,

Hudson Grant, for appellant. G. P. Harding, for respondents.

FOOTE, C. This is an action upon an account stated. Both of the defendants pleaded the statute of limitations of two years under section 339, subd. 1, Code Civil Proc. One of them, Goodin, further pleaded, in bar of the action, that he by agreement had been absolved from paying the account sued on. The trial court found that the amount of the account was correct; that no such agreement as Goodin claimed had in fact existed, but held that the cause of action as to both defendants was barred by the statute of limitations. From the judgment roll, it appears that the defendants were indebted upon an open account to a partnership, of whose effects the plaintiff was the sole owner at the time of the institution of this suit. Before the statute of limitations had barred any portion of that account, the parties met, and agreed orally upon the balance that was due from the defendants to the plaintiff. In other words, an accounting was had between the parties; and the balance which the plaintiff claimed to be due from the defendants they then and there orally admitted to be due, as he claimed, and agreed to pay. At the time when this action upon the "account stated" was instituted, two years had not elapsed since the agreement had been made to pay the ascertained balance due on the original account. Therefore the cause of action upon which this suit is based was not barred, and the plaintiff should have had judgment upon the findings. "An open account already barred by the statute of limitations cannot be relieved from the bar of such statute by an oral statement of such account. * * * Where, however, the demand is not barred at the date of the account stated, although the statement is verbal, the statute begins to run upon the new cause of action thus brought into existence from the date

of the settlement and new promise arising thereunder, and, if verbal, an action may, under subdivision 1, § 339, Code Civil Proc., be brought within two years after such settlement." Auzerais v. Naglee, 15 Pac. Rep. 371. The judgment, therefore, should be reversed, and the court below directed to render judgment upon the findings for the plaintiff.

We concur: BELCHER, C. C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is reversed, and the court below directed to render judgment upon the findings for the plaintiff.

(75 Cal. 194)

CHICAGO Q. M. Co. v. OLIVER. (No. 12,090.)

(Supreme Court of California. February 29, 1888.)

PUBLIC LANDS-RAILROAD GRANTS-"MINERAL LANDS" EXCEPTED FROM.

In an action to quiet title defendant claimed under a patent issued to the C. P. R. R. Co. in pursuance of the act of congress approved July 1, 1862, entitled "An act to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean," and the amendatory act approved July 2, 1862. The original act excepted from the grant all "mineral lands, " and the amendatory act excludes them. Defendant's patent also excluded and excepted "all mineral lands, "should any such be found to exist in the tracts described therein. Held, that such patent is not conclusive that the land was properly included in the grant, and that, upon evidence of its being "mineral land," plaintiff is entitled to relief. SEARLS, C. J., and McFARLAND, J., dissenting.

In bank. Appeal from superior court, Nevada county; J. M. WALLING, Judge.

This was an action brought by the Chicago Quartz Mining Company against John Oliver, to quiet title to land. Judgment for defendant, and plaintiff appeals.

Gaylord & Searls, H. V. Rearden, and Wm. Singer, Jr., for appellant. A. Burrows, for respondent.

SHARPSTEIN, J. This is an action to quiet title. The plaintiff claims under a mining patent issued August 16, 1883; defendant under a patent issued to the C. P. R. R. Co., dated April 18, 1870. The only question is whether the title to the premises in controversy vested in the railroad company under the act of congress entitled "An act to aid in the construction of a railroad and telegraph line from the Misssouri river to the Pacific ocean," etc., approved July 1, 1862, and the act amendatory thereof, approved July 2, 1862. The land is within the boundaries of one of the sections covered by that grant, and, if not reserved or excepted from it, undoubtedly vested in the railroad company. So that the question is: Was the land reserved or excepted from the grant to the railroad company? In the original act there is a proviso that all mineral lands shall be excepted from its operation, and, in the amendatory act, that the grant shall not include any mineral lands. And the Revised Statutes provide that "No act passed at the first session of the thirty-eighth congress granting lands to states or corporations to aid in the construction of roads or for other purposes, or to extend the time of grants made prior to the 30th day of January, 1865, shall be so construed as to embrace mineral lands, which in all cases are reserved exclusively to the United States, unless otherwise officially provided in the act or acts making the grant." Rev. St. U. S. § 2346. The patent under which defendant claims contains this clause: "Excluding and excepting from the transfer by these presents all mineral lands,' should any be found to exist in the tracts described in the foregoing." The court found "that all the land described in said complaint as the Chicago

.

Quartz Mine' is valuable gold-bearing mineral land, and has been notoriously known and frequently worked as such ever since 1861." This finding is justified by the evidence, and is not assailed by appellant. But, while conceding the fact to be as found, he contends that the title to the land, nevertheless, vested by the patent in the railroad company. As stated by appellant's counsel, his contention is that "mineral land did not pass by the grant, (to the railroad company,) and the officers of the land department had no authority to designate by the patent any land which was mineral in character. The law required them to designate only such land as was non-mineral in character, and the issuance of the patent under the law, aided by the presumption which the law attaches to the performance of all official acts, was a conclusive determination that the land designated in the patent was non-mineral, and the reservation in the patent was meaningless." The act of congress making the grant does not in express terms require any officer or officers of the govern ment to identify and exclude from the patent mineral lands lying within the alternate sections granted to aid in the construction of the road. In the original act all mineral lands are expressly excepted from its operation, and in the amendatory act it is enacted that the grant shall not include mineral lands or any lands returned and denominated as mineral lands. "Whatever is included in the exception is excluded from the grant; and it therefore often becomes important to ascertain what is excepted in order to determine what is granted." Railroad Co. v. U. S., 92 U. S. 733. It is not claimed that the officers on whom was devolved the duty of issuing patents for the lands granted could add anything to the grant, but it is claimed the patent is conclusive evidence that the grant included all the land covered by the patent. The supreme court of the United States has said: "A patent may be collaterally impeached in any action, and its operation as a conveyance defeated, by showing that it had no jurisdiction to dispose of the lands; that is, that the law did not provide for selling them, or that they had been reserved for sale or dedicated to special purposes, or had been previously transferred to others." Smelting Co. v. Kemp, 104 U. S. 636. This is quoted approvingly in the opinion of the court, delivered by FIELD, J., in Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. Rep. 985. In McLaughlin v. Powell, 50 Cal. 64, the plaintiff in ejectinent introduced a patent to the W. P. R. R. Co., from which he deraigned title to the demanded premises, similar to that relied on by appellant in this case, and rested. "The defendant then offered to prove that the land was mineral land, containing large quantities of cinnabar and quicksilver, and that he had held the land as a mining claim since October, 1866, under the rules and regulations and customs of miners in the district where the land was situated. The plaintiff objected to the testimony as irrelevant, and the court sustained the objection. The plaintiff recovered judgment, and the defendant appealed from the judgment and from an order denying a motion for a new trial." This court said: "The exception contained in the patent introduced by the plaintiff is part of the description, and is equivalent to an exception of all the subdivisions of land mentioned which were mineral' lands. In other words, the patent grants all of the tracts named in it which are not mineral lands. ** * We think the defendant should have been allowed to prove that the demanded premises were mineral lands." The judgment and order were reversed. The doctrine laid down in that case, if applied to the case now in hand, is decisive of it; and we think it in harmony with the cases decided by the supreme court of the United States. It has not been overruled in any reported case in this state, although it is claimed to have been in the unreported case of Railroad Co. v. Leavenworth. No opinion was filed in that case, and we are unable to determine from the record that this question was passed on in that case. Those portions of finding 3 which are alleged to be unsupported by the evidence, are, in our opinion, immaterial. It is therefore unnecessary to determine whether the evidence is sufficient to

justify them. The material facts found are supported by the evidence. Judg ment and order affirmed.

We concur: TEMPLE, J.; PATERSON, J.; MCKINSTRY, J.; THORNTON, J.

We dissent: SEARLS, C. J.; MCFARLAND, J.

(75 Cal. 203)

ROBERTS v. DUNSMUIR et al. (No. 12,162.)

(Supreme Court of California. March 1, 1888.)

COURTS STATE COURTS-JURISDICTION-RESIDENTS OF FOREIGN COUNTRY.

The dismissal, for want of jurisdiction, of an action brought to recover damages for injuries received while employed in defendants' coal mine in a foreign country, where it appears that personal service of the summons was had on one of the defendants, even though plaintiff and the defendant served are both subjects of a foreign country, is error.

Department 1. Appeal from superior court, Nevada county; J. M. WALLING, Judge.

Action by Henry Roberts against R. Dunsmuir, James Dunsmuir, and A. Dunsmuir, to recover damages for injuries received while working in defendants' mine. The court dismissed the action for want of jurisdiction. Plaintiff appeals.

John I. Caldwell and Geo. D. Buckley, for appellant. W. H. L. Barnes, for respondents.

TEMPLE, J. The plaintiff is a subject of Great Britain, and brings this suit against these defendants, who are also subjects of Great Britain, to recover damages for injuries received while employed by them in their coal mines in British Columbia. At the time of bringing the suit the plaintiff and one of the defendants were actually residing in this state, and the plaintiff had declared his intention to become a citizen of the Unites States. But one of the defendants was served with summons. Ile answered denying the alleged partnership, or that he was ever owner of the mine, which he averred was wholly owned by the defendant, who resided in British Columbia.

On motion of the defendant, the court below dismissed the action, on the ground that the courts of this state have no jurisdiction. In this it is plain the court erred. Johnson v. Dalton, 1 Cow. 543; Gardner v. Thomas, 14 Johns. 134; Smith v. Bull, 17 Wend. 323. The action is transitory, and the defendant may be sued wherever found; otherwise, a person might in some cases escape such liability by simply going into another state. The defendants R. Dunsmuir and James Dunsmuir were not personally served, and are not residents of this state. The court had no jurisdiction as to them, if they have not voluntarily appeared in the action. It is claimed they did that by filing a petition asking to have the cause removed to the circuit court of the United States, and by procuring an extension of time to answer after such appearance. The plaintiff at the trial asked to have their default entered, and thereupon read the petition for the removal of the cause; and offered to prove that, after such petition was filed, the defendants R. and James Dunsmuir applied to the circuit court for and obtained several extensions of the time in which to plead. The court rejected this last evidence of its own motion, saying that it was immaterial, as the court had no jurisdiction of the action. In other words, the court refused to act at all upon the motion for a default, believing it had no jurisdiction of the case. The judgment is reversed, and cause remanded for a new trial, and for further proceedings.

We concur: SEARLS, C. J.; MCKINSTRY, J.

(71 Cal. 236)

ASHE v. BOARD SUP'RS. (No. 11.481.)

(Supreme Court of California. October 29, 1886.)

REVIEW, WRIT OF-USE OF HIGHWAY FOR RAILROAD-PARTY BENEFICIALLY INTERESTED. The affidavit for a writ of review to an order of the board of supervisors granting the right to use a highway for the purpose of a railroad alleged that affiant, in common with others living along the highway, would be damaged by the maintenance of such railroad. Held, that the application was not made by "the party beneficially interested," as required by Code Civil Proc. Cal. § 1069.

In bank. Motion to quash a writ of review.

Motion to quash a writ of review issued on the petition of one W. Ashe to an order of the board of supervisors of Colusa county granting to certain persons the right to appropriate a highway for the purpose of constructing a railioad. The petitioner alleged in his affidavit that he was a citizen and taxpayer of the county lying upon such highway, and that he and all other citizens living along the line of the same would suffer damage from the maintenance of the railroad in question.

A. L. Hart, for petitioner. Stabler & Bayne, for respondents.

PER CURIAM. The motion to quash the writ of review heretofore issued in this proceeding must be granted. It does not appear that the application for the writ was made on the affidavit of the party beneficially interested. The Code requires that "the application must be made on affidavit by the person beneficially interested." Code Civil Proc. § 1069. It does not appear by the petition in this case that the petitioner has any other or greater right in the public highway mentioned therein than any other citizen of the state. The requirement that the application must be made by "the party beneficially interested" has been construed to mean "that, in an application made by a private party, his interest must be of a nature which is distinguishable from that of the mass of the community." Linden v. Alameda Co., 45 Cal. 7. Writ quashed, and proceeding dismissed.

MYRICK, J., concurred in the judgment.

(38 Kan. 530)

DOUGLASS v. RUFFIN.

(Supreme Court of Kansas. February 11, 1888.)

1. EJECTMENT TITLE TO SUPPORT.

In an action of ejectment the plaintiff may recover if he shows that he has a claim to the property by color of title, as against the defendant who is in possession without color or claim of title, other than by possession.

2. SAME-EVIDENCE-PRESUMPTION.

Where it is once shown that real property has been improved, by being fenced, or by other lasting improvement, such improved condition of said property will be presumed to continue, unless the contrary is shown.

(Syllabus by Clogston, C.)

Commissioners' decision. Error to district court, Leavenworth county; R. CROZIER, Judge.

John C. Douglass, plaintiff in error, commenced this action to recover the possession of lots 8 and 9, in block 16, in Central subdivision of the city of Leavenworth. Trial at the May, 1884, term of the district court of Leavenworth county. The plaintiff brings the case here upon a transcript of the record. The court found substantially the following facts: That in 1873 the county of Leavenworth issued to A. A. Higginbotham two tax deeds for said lots 8 and 9, the property in controversy, and that said deeds were thereafter duly recorded; that afterwards, in 1874, Higginbotham and wife quitclaimed all their title and interest in said property to Leavenworth county, which deed was not recorded until 1883; that in 1881 said Higgin