stockholder received his proportionate share of the gain to the aggregated body of stockholders, which constituted a valid consideration for the money so paid.

The defendant claims that the committee, by including in the note items of account that had been due and payable the length of time required by the statute to bar an action thereon, exceeded their authority, as such items were not "an indebtedness against the company" at the date of the note. If this position is correct, the aggregate amount of such items should have been at the trial deducted from the note.

The defense of the statute of limitations is a personal privilege, which the debtor may assert or waive at his option, but, when asserted, it must be set up by some affirmative act expressing an intention of relying upon it as a defense. Until such intention is expressed, which must generally be by demurrer or answer, the demand is good, notwithstanding the statute, and, when successfully pleaded, it is a bar to the remedy. It does not otherwise regulate or affect the debt. The expiration of the time, which enables the debtor to plead the statute as a defense to an action to recover a debt, does not operate as a payment or extinguishment. The debt survives, although the debtor is enabled, if he so elects, to plead the statute, and thereby defeat an action brought thereon. Grant v. Burr, 54 Cal. 298.

There is no intention expressed in the resolution of relying upon the statute as a defense to any indebtedness of the defendant, and Scott and Holbrook were not invested with any express discretion or authority with reference to the statute of limitations as a defense to any demand against the defendant. They were "directed to make and deliver to the several stockholders, who have loaned money to this company, and for the liabilities of this company, the notes of this company for such loans and liabilities." A debt, within the statutory bar, is a good consideration for a new promise, although made by an agent, if within the scope of his power. "An acknowledgement made by an agent in respect to demands relating to concerns within the scope of his authority is binding upon his principal." Ang. Lim. 261.

It is to me quite clear that the inclusion of these items in the note was not an unauthorized act, and therefore the value of the note, because the statute might have been successfully pleaded to an action upon them, had one been commenced, is not thereby impaired. For these reasons, sanctioned by many authorities, I am of the opinion. that the court erred in instructing the jury that "if the jury find that any of the items entering into the amount of the note in this case were barred by the statute of limitations, in force in Michigan at the date of this note, the amount at which they were figured in the note should be deducted therefrom, as not being a legal liability under the resolution offered."

This instruction is erroneous in another respect. Instructions should be precise and certain to a particular intent, and the law applied to facts in evidence clearly expressed. Telling the jury that if they should find that any of the items included in the note were barred by the statute, the amount of such items should be deducted therefrom, is not an intelligible statement of the law applicable to the particular facts in evidence. Reference to the statute, although it may have been copied in hæc verba into the pleadings of the case, is not informing them what facts are necessary to bring the debt or demand within the statutory bar. Thomp. Char. Jur. § 67.

The record presents a large number of assignments in error, but the foregoing is sufficient in principle, if correctly applied to the facts of the case, to determine all the material questions raised or argued by counsel.

The judgment of the district court is reversed, and the case remanded for a new trial.

HUNTER, C. J., dissents.

(3 Utah, 94)

JAMES HARRINGTON and others

v.

ROBERT C. CHAMBERS and others.

Filed February 6, 1882.

While the testimony may be conflicting, the findings of fact by the lower court or referee will not be disturbed, unless the preponderance is so marked that the appellate court may declare without hesitation that the finding is against the evidence.

Where the validity of a mining claim is contested, the statements of the owner of a conflicting claim (though not one involved in the suit) are admissible in evidence, even though he had parted with his interest before the suit. Even were this admission error, it would not work reversal of the judgment where it could not prejudice the party objecting to it.

Work done outside of a claim, if done as a purpose or means of developing or prospecting the claim, as in the case of tunnels, drifts, etc., is as available for holding the claim as if done within the limits of the claim itself.

Evidence as to what sort of indications other miners would follow in attempting to find a lode, is admissible, not as stating the opinions of third parties, but as stating the value of the indications in the mining community. A lode is whatever the miners could follow and find ore.

TEVISS, J., dissents.

Appeal from the third district court.

EMERSON, J. The appellants having made application for the gov ernment title to certain mining ground known as the "Switzerland Claim," the respondents filed an adverse claim to a portion of the

premises under a mining claim known as "Parley's Park," and themselves commenced this action to determine the rights of possession of the ground in controversy. The case was tried by P. S. Williams, Esq., referee, and upon his report of the findings of facts and conclusions of law a decree was rendered in favor of respondents. A motion for a new trial was made, which was overruled. Thereupon this appeal for a new trial was taken from the order overruling the motion. for a new trial and from the judgment:

The record contains the following: "It is stipulated by the counsel that the testimony taken be considered as taken in all the cases; that will be so as to all the testimony; that being taken in one case is to be used in all the others as far as applicable."

Besides the above-entitled case there was referred to the same referee a cross-suit between the same parties involving the same questions and subject-matter, the parties therein being merely reversed; also an action by defendants against the plaintiffs involving the same mining ground, the plaintiffs therein representing the Como Tunnel and the defendants therein the Parley's Park mining claim; also an action by the defendants representing the Parley's Park claim against Harry Pickard et al., applicants for and representing the Ontario No. 1 Extension East mining claim, which suits involved the rights to the same mining grounds in dispute in the principal case, and the foregoing stipulation refers to all of said actions, the attorneys of record being the same in all.

The referee reported the following findings of fact and conclusions of law:

FINDINGS OF FACTS.

(1) That the locators of the Parley's Park mining claim, mentioned in the complaint, at the time of the location of said claim, viz., on the nineteenth day of July, 1872, at the "discovery point" of said claim, discovered a mineral-bearing vein or lode, and the claim was duly recorded August 9, 1872.

(2) That soon after said location, to-wit, in the month of August, 1872, the locators of said Parley's Park mining claim marked on the ground the boundaries of said claim by setting stakes at the corners. thereof.

(3) That prior to the twenty-fourth day of July, 1874, and within a year preceding that time, the owners of said claim performed labor and made improvements thereon of $100 in value.

(4) That each year thereafter, up to July 19, 1878, work,of the value of $100 was done on said claim by the owners thereof.

(5) That during the year beginning on the nineteenth of July 1878, the owners of the Parley's Park claim were also the owners of two certain claims called respectively the "Central" and "The Lady of the Lake," the Central adjoining the Parley's Park and the Lady of the Lake adjoining the Central mining claim,-and that with a view

to the future working and development of all three of said claims, the owners thereof located what is called the "main shaft," in the Lady of the Lake surface ground; that such shaft is in such proximity to said Parley's Park mining claim that work in it has a tendency to develop said claim, and said shaft was located and intended for the purpose of developing all of said claims. I find that during said last-named year work was prosecuted in said shaft, and by improvements made thereat, exceeding in value $300, and of not less than $2,000 in value. No work was done in said year after July 19, in 1878, and prior to the fifteenth day of September, 1879, in the Parley's Park surface ground, or within its limits, by the owners thereof. I also find that the Lady of the Lake mining claim, on application for patent, was entered and paid for at the United States land-office at Salt Lake City, Utah, no protest having been made prior to July, 1878, but no patent for said claim has yet been issued.

(6) That at the time this action was commenced the plaintiffs were in possession of said Parley's Park mining claim; that by the admission of the defendants, on the trial, the plaintiffs at the commencement of this action had the title to said mining claim by regular conveyances from the locators; that the Parley's Park Silver Mining Company was organized as a corporation on the nineteenth day of March, 1879, and on or about the first day of June, 1879, received a conveyance from said plaintiffs of said mining claim, and possession thereof, and this suit is prosecuted in the interest and for the benefit of said corporation.

(7) Before and at the commencement of this action the defendants claimed an interest in only a part of the premises embraced in said Parley's Park mining claim, and claimed said interest adverse to said plaintiffs; that said adverse claim consists of, and was based solely on, an alleged mineral location made in October, 1874, called the "Switzerland," which embraced a part of said Parley's Park claim, described in the complaint.

(8) On the third day of October, 1874, James Cain, Mike Heffron, and John Cammerman entered upon the ground described in the pleadings as the Switzerland mining claim, and marked the boundaries as set forth in the answer, and posted at the discovery point on a vein of mineral-bearing rock in place, by them opened and discovered, a notice of said claim, which notice described the said claim. set forth in the answer, and afterwards, on the fifth day of October, filed a copy of said notice as posted, for record, with the recorder of the district, which notice was recorded as follows:

"NOTICE OF SWITZERLAND LODE.

"We, the undersigned, claim fifteen hundred feet on this lead, lode, or ledge or deposit, of mineral-bearing rock, or metal therein. We claim 140 feet north-westerly to the Ontario line, and we claim 1,360

feet south-easterly from this notice and monument, with 100 feet on each side of the vein for working purposes. We claim all the rights and privileges guarantied to us by the mining laws of the United States and the local laws of this district. This location is situated 140 feet south-west of the south-west boundary line of the Ontario patent line stakes, in Mintah mining district, located October 8, 1874. "JAMES CAIN, 300 feet.

"MIKE HEFFRON, 500 feet.
"JOHN CAMMERMAN, 200 feet."

That afterwards, and on or about the fifteenth of April, 1876, the attention of the persons who had recorded the notice was called to the discrepancy between the record and the notice filed for record, said person having in the mean time ceased to be recorder of the district. and thereupon said person changed said record to correspond to the notice filed.

(9) That the locators of said Switzerland claim, and their grantees claiming under said location, have in each year since done work, and made improvements thereon of the value of more than $100, and have been in the continuous possession of said improvements.

(10) That the defendants, by conveyances from the locators, and their immediate grantees, at the time of the commencement of this action, had acquired, and still have the record title to said claim, and own all the title and interest therein which could be acquired from said locators, and by subsequent compliance with mining laws and customs.

(11) The discovery point of the Switzerland claim, and the point where the location point was posted is within the bounds of the Parley's Park mining claim.

(12) That on the thirteenth day of September, 1879, Thomas Cassidy, claiming the Parley's Park mining claim was forfeited for want of work and improvements, located a mining claim called the "Accidental," embracing the premises in dispute in this action, and all that part of the Parley's Park mining claim lying easterly of the easterly end line of the Ontario mining claim.

(13) Said Cassidy, on said day, posted a written notice of location on a lode of rock bearing silver found within said claim, and at the discovery point. Said notice described the claim by reference to natural objects and permanent monuments, so it could be identified, and described it by metes and bounds, and also contained the name of the locator and date of location.

(14) Said Cassidy on the fifteenth day of September, 1879, filed a copy of said notice of location in the office of the recorder of said Mintah mining district, for record, where the same was duly recorded.

(15) Said Cassidy, and his grantee of said claim, have in each year since said location, done work and made improvements thereon. of the value of more than $100.