Upon the findings of fact and conclusions of law, found and filed by the court, a judgment was entered in favor of the respondent, from which the appellants appeal, claiming that upon the facts found they are entitled to judgment.

The record in the case was not printed, but the briefs of counsel contain all the findings necessary for the purpose of this review, and are as follows:

1. That on the first day of January, 1875, Edward W. Thompson, the plaintiff, entered upon a piece of ground in the Lincoln mining district, in the county of Beaver and territory of Utah, and located the Forest Queen mine, the premises described and claimed by the plaintiff in his complaint, by erecting a monument of stake and stones at each corner of the location, and one at each end of the center line, and also a center monument, and placed on each a copy of the location notice, and marked each monument so as to indicate which or what monument it was; and within twenty days thereafter filed said notice for record in the office of the recorder of the Lincoln mining district, as required by the bylaws of said mining district.

7. That in each of the years 1880 and 1881 the defendants caused at least one hundred dollars' worth of assessment work to be done on the mine.

8. That upon the twenty-third day of March, 1871, the Grundy claim or lode was located. That on the twenty-ninth day of May, 1871, the Hudson claim or lode was located; on the twenty-eight day of August, 1871, the Elizabeth claim or lode was located; and the location notices of these three claims or lodes were filed for record within the time and were in the terms required by the by-laws of the Lincoln mining district; and that said locations were valid.

9. That the Homestake mine includes within its limits. and is a relocation of the Forest Queen, and the Forest Queen includes within its limits the Grundy, Hudson, and Elizabeth lodes or claims.

10. That upon the Elizabeth lode the work and labor required to be done in order to hold and secure a claim or lode by or under the by-laws of the Lincoln mining district within sixty days from and after the filing of the location notice for record-to wit, for each of two hundred feet there shall

be sunk a shaft or tunnel not less than two feet in depth; said shaft shall contain not less than twenty square feet surface measurement-was not done.

11. That within sixty days of the time of filing the location notices of the Grundy and Hudson lodes for record, the work and labor required to be performed thereon by the bylaws as aforesaid was done upon each of said lodes or claims, by the locators thereof, or their assignees.

12. That the labor performed and improvements made upon the Grundy by its locators or its assigns after the location thereof, and before the first day of January, 1875, were worth and were of the value of two hundred dollars.

13. That the labor performed and improvements made upon the Hudson by the locators thereof and their assigns, after the location thereof and before the first day of January, 1875, were worth and were of the value of one hundred and fifty dollars.

14. That the labor performed and improvements made on the Elizabeth claim by the locators thereof and their assigns, after the location thereof and before the first day of January, 1875, were of the value of fifty dollars.

15. That the Grundy, Hudson, and Elizabeth lodes or ledges were each of one thousand feet in length along the vein.

16. That there was not upon either the Grundy, Hudson, or Elizabeth lodes or ledges ten dollars' worth of labor performed or improvements made for each one hundred feet in length of said respective lodes or claims, after the tenth day of May, 1872, and before the first day of January, 1875, as required by section 2324 of the revised statutes of the United States (2d edition of 1878), and the act of congress approved June 6, 1874, entitled "An act to promote the development of the mining resources of the United States," passed May 10, 1872, and that the original locations of the Grundy, Hudson, and Elizabeth lodes, or their heirs, assigns, or legal representatives, did not on the first day of January, 1875, or at any time for several months prior thereto, do or try to do any work or labor upon either of said lodes or ledges.

17. That the discovery shaft and center monuments of both the Homestake and Forest Queen mines or locations were upon the Grundy claim.

The only question on this appeal is, whether work done on

a mining claim prior to May 10, 1872, can be considered as the first or any part of the first annual expenditure required by that act and the several amendments thereto. Prior to the act of May 10, 1872, there was no law of congress requiring annual labor to be done on mining claims in order to hold them. When, therefore, that act speaks of the amount of work to be performed or improvements made each year, it means each year from and after its passage.

By the several amendments of March 1, 1873, and June 6, 1874, the time for making the first annual expenditure under the act of May 10, 1872, was extended to January 1, 1875.

The required amount of expenditure in labor or improvements not having been expended on either of the three mining claims mentioned in the findings, at any time between the tenth day of May, 1872, and January 1, 1875, they became relocatable on the last-named day.

The judgment of the court below is affirmed.

HUNTER, C. J., and Twiss, J., concurred.

CRISMON, COLLECTOR, v. THE BINGHAM CANYON & CAMP FLOYD R. R. CO.

A COLLECTOR OF TAXES WHO SUES FOR DELINQUENT TAXES is, so far as the money due from the delinquent tax-payer is concerned, a trustee for no one, and in bringing the suit he is acting in his own and not in another's right.

IN SUCH CASES THE COURT BELOW CAN NOT LEGALLY DISPENSE with the filing of an undertaking on appeal; and in this case, no undertaking having been filed, the appeal is ineffectual for any purpose. Appeal dismissed.

APPEAL from the third district court. The opinion states the facts.

Z. Snow, R. N. Baskin, Marshal & Royle, and Rusborough & Merritt, for the appellant.

Sutherland & McBride, for the respondent.

EMERSON, J.:

The respondent moves to dismiss this appeal, on the ground that no undertaking has been filed or deposit made with the clerk, as required by the statute.

The appellant is collector of taxes for the county of Salt Lake, and brought this suit to recover certain taxes assessed against the respondent, which were delinquent. Judgment was against him in the court below, and he appealed to this court, but filed no undertaking on appeal, for the reason stated below.

By section 339 of the practice act, to render an appeal effectual for any purpose in any case, it is required that a written undertaking be filed, or a deposit of money made with the clerk, within five days after the motion of appeal is filed.

Section 344 provides that the court below may in its discretion dispense with this, "when the appellant is an executor, administrator, trustee, or other person acting in another's right."

The appellant, conceiving himself within the provisions of the latter section, obtained from the court below an order dispensing with the undertaking required by section 339.

The authority by which the collector sues for these delinquent taxes is found in the session laws of 1880, p. 44, and is as follows: "On or before the first Monday in May in each year, the collector of each county shall settle with the clerk of the county court, and make full payment into the county treasury of all taxes due. If any tax shall remain unpaid to the collector on the said thirty-first day of May, the collector shall have in his own individual right a right of action the same as on an express contract for the direct payment of money against each delinquent, and no taxable property of such delinquent shall be exempt from execution on a judgment in such cases."

By the express provisions of the act, he must bring suit in his own name and in his individual right. So far as the money due from the delinquent tax-payers is concerned, he is a trustee for no one; and in bringing the suit, he is acting in his own and not in another's right.

The court could not legally dispense with the filing of the undertaking on this appeal. The appeal is therefore ineffectual for any purpose.

The motion is granted and the appeal is dismissed.

HUNTER, C. J., and Twiss, J., concurred.

CRISMON, COLLECTOR, v. TUFTS.

A JUSTICE OF THE PEACE HAS NO POWER TO CERTIFY TO THE DISTRICT COURTS FOR TRIAL causes which he has no jurisdiction to try. Where by an answer filed with the justice issues are raised which the justice has no jurisdiction to try, his only power is to dismiss.

APPEAL from the third district court. The opinion states the facts.

Zerubbabel Snow, for the appellant.

A justice of the peace has jurisdiction in suits for taxes, when the sum claimed is less than three hundred dollars; but if the answer of the tax-payer puts in issue the legality of the tax sued for, the justice must certify the case to a court having jurisdiction to hear and determine said issue. The district court, therefore, erred in holding it had not jurisdiction, and dismissing this case.

From all final judgments of justices of the peace an appeal shall be allowed to the district courts of their respective districts in the same manner as is now provided by the laws of said territory for appeals to the probate courts.

We maintain that the judgment of the justice of the peace, holding that the legality of the tax sued for was involved, was a final judgment within the meaning of that term as used in the Poland bill; and certifying the case up to the district court is one of the means of appeal expressly authorized by the last-named act. So far as the justice's court was concerned, it was final; though it did not determine the right parties in the subject of the action, it did determine that the parties could not have a judgment either way before that justice's court.

It is not necessary to discuss the distinction between interlocutory and final judgments. Great inconveniences will arise in suits for taxes if the defendant can, by simply denying the legality of the tax, oust the proceeding and throw the costs on the officer.

Sheeks & Rawlins, for the respondent.

The only authority given to a justice to certify a case to a