Erhardt v. Boaro. entering on the claim and prosecuting the development work within the time required, and that, though they procured a survey to be made upon which to make out a location certificate, this was done secretly, by the officer who made the survey for defendants. It is claimed for defendants that the plaintiff's were not in actual possession of the claim between the seventeenth day of June, the time they set their stake, and the thirtieth of June, when defendants entered; and further, that the notice upon the discovery stake of plaintiffs was not sufficient, in that it failed to give the course of the lode. The law of the state gives sixty days after making discovery of mineral, in which to sink a shaft ten feet in depth. The main object of the sixty days' possession, it seems to the court, must be to allow time to discover the course of the lode in order that the location may be made thereon. Counsel for defendants made an ingenious argument to show that the locator during those sixty days, to hold his right, must remain in continuous actual possession of the ground. The court does not so hold. If the discoverer put up a stake at the discovery, giving the name of the lode, date of discovery and notice of his intention to locate the claim, this is equivalent to actual possession. Otherwise the statute serves no useful purpose. The intention of the statute must be that the setting up of the discovery stake with the notice thereon as required is equivalent to actual possession for the sixty days, within which he may proceed to the next step, to wit: Sink the discovery shaft to the depth of ten feet, have survey made, mark the lines and make formal location. That the plaintiffs did not sink the shaft to the required depth of ten feet within the sixty days cannot prejudice their right in this case, for the reason that the defendants prevented them from so doing by taking possession of their excavation. Plaintiffs could not prosecute their work while the defendants were in the occupancy, and this is sufficient reason for not sinking the shaft within the time prescribed. The injunction will be awarded. Marion County v. McIntyre. MARION COUNTY v. MCINTYRE. (District of Nebraska. May, 1880.) 1. COUNTY RIGHT OF, TO SUE IN Federal Court of ANOTHER STATE.— An organized county in the state of Iowa, having the right to sue and be sued, etc., under the laws of that state, may commence and maintain a suit in this court to recover property or its value, of which it has been wrongfully deprived. 2. MONEY DEPOSITED WITH AN INDIVIDUAL AS INDEMNITY-WHEN RECOVERED BACK.- Money deposited with an individual for a specific purpose, to wit: To indemnify him against loss or liability on an appearance bond in a criminal case, can be recovered back after the liability has ceased on such bond, and such a deposit can in no sense be regarded as a payment by the county. DUNDY, District Judge.- In the month of October, 1876, the treasury of Marion county was robbed of about ten thousand dollars in money, and the thieves were, for a time, successful in secreting as they had been in securing the money. For the purpose of securing the arrest and conviction of the robbers, the county offered a respectable reward for their apprehension. Two enterprising individuals of the state of Iowa, by name, Charles B. Thompson and James E. Hetherington, after gaining such information as seemed to be within reach, started in pursuit of the thieves and their plunder. The alleged thieves were successfully followed into the interior of this state, where they were "shadowed" by their pursuers, and where they were finally arrested by Thompson and Hetherington, who had been employed for the purpose. A portion of the stolen funds were recovered, the same having been found in the possession and on the person of one of the thieves. One of the original packages stolen contained the sum of two thousand dollars, and was taken from the thief by his captors before the package had been broken or opened. This package was retained by Thompson and Hetherington for a time and until it was by them delivered to this defendant. But whilst this business was progressing, the thieves, their accomplices or friends, incredible as it may seem, actu Marion County v. McIntyre. ally had Thompson and Hetherington arrested for robbery, the charge being for taking the stolen funds from the thieves, who had the same in possession. And, what is absolutely amazing, the magistrate, before whom Thompson and Hetherington were taken, required them to give bail to answer in the district court to the charge of robbery. The bail required was fourteen or fifteen hundred dollars, and without the use of the money captured, the accused were unable to give it. At this stage of the proceedings this defendant first appears in this serious, and what seemed to be a rather dangerous and inconvenient farce. This, however, let it be said, was not at all discreditable to him. Negotiations between this defendant and Thompson and Hetherington led to an agreement which resulted in McIntyre executing a bond for the appearance of Thompson and Hetherington at the then next term of the district court, there to answer to the said charge of robbery. The two thousand dollar package of money taken from the thieves was placed in the hands of this defendant, to be held by him as security against any loss he might sustain in consequence of his becoming surety for Thompson and Hethering ton. This unbroken two thousand dollar package, however, was desired by the proper authorities in Iowa, to use in prosecuting the thieves; and it was understood and agreed between the parties at the time, that McIntyre was to surrender to the county the said unbroken package as soon as the county should place in his hands the sum of fifteen hundred dollars, which was to indemnify him against loss, if Thompson and Hetherington failed to appear in court and answer to the said charge of robbery. The county subsequently placed in the hands of the defendant the fifteen hundred dollars, and the defendant surrendered the two thousand dollar package, according to agreement. Subsequently the said Thompson and Hetherington appeared in the district court, as they were required to do by their bond, and the grand jury of the county ignored the charge-the district attorney of the district, to his honor be it said, declining to prosecute in such a comtempt Marion County v. McIntyre. ible case. This put an end to the bond which the defendant had signed, and his obligations thereon were fully discharged. The defendant then had no further risk to run. His further connection with the criminal charge of robbery, and the execution of the bond for the appearance of the accused, was absolutely at an end. He could have surrendered the money to the plaintiff without danger of further liability, except as hereinafter stated. After all this and after the defendant had notice of the ignoring of the charge of robbery against Thompson and Hetherington, the plaintiff demanded of the defendant the surrender of the money placed in his hands for the purpose aforesaid. Before this demand was made, however, it seems that several parties in this state had commenced suit against Marion county, for alleged damages done to horses whilst in pursuit of the thieves and robbers who had plundered its treasury. Judgments were in some way entered in several of these peculiar cases, and the money was attached in the hands of this defendant to satisfy such claims. The plaintiff gave the defendant credit for the sums so attached, and requested payment of the balance, which was refused, and this suit was brought to compel payment of the balance due. The defense was: First. That the plaintiff had not the legal capacity to commence and maintain the suit. Second. That the money placed in the hands of the defendant, to wit: the $1,500, did not belong to the plaintiff; and Third. Even if it did belong to the plaintiff, there was no authority for placing it in the hands of the defendant for any such purpose, and therefore no recovery could be had. Trial was had on the issues joined, which resulted in a verdict for the plaintiff of $1,537.10. The defendant seeks to have the judgment of the court arrested, for the same reasons relied on as matters of defense. Marion county is one of the political subdivisions of the state of Iowa. The county was duly created by an act of the legislature of the state of Iowa, and has been organized and VOL. II-10 Marion County v. McIntyre. transacting the business pertaining to its organization for many years past. Under the laws of the state in which it is located, it can sue and be sued, and do many other things, as well as individuals. This is necessary for the well being, if not for the very existence of a municipal corporation. And the several counties in Iowa, and in fact most, if not all counties in other states, possess the same rights. It is believed that authority is conferred on all of them to acquire and hold property for the convenient transaction of their lawful business. We know that it is necessary for all of them to levy and collect taxes, to furnish funds to carry on the financial affairs of the counties. All are invested with this authority. None can. exist without it, and none have existed without in some way raising a revenue to meet the necessary expenses incident to the organization. This principle is universally recognized and applied. And because of this necessity, counties have conferred on them the right to sue and be sued, so that their money and other property can be fully protected. Without such a right to protect the public property, without the right to resort to the courts to correct an abuse or redress a wrong or maintain a right, the power and right to acquire and hold property, however useful or necessary, would be but an empty shadow. Were it otherwise, a county would be at the mercy of every scoundrel who would spoliate its treasury or embezzle its property, and get across the lines of a state before being apprehended. Can it be said that a thief who steals the money or property of one of the counties in Iowa, Missouri or Kansas, or any other state, shall find a safe place to enjoy his stolen property, if he can succeed in crossing the Missouri river with it, and finding a place in this state where he is out of reach of process, and where the same could not be recovered back, for the alleged reason that a county cannot maintain a suit? I have seen no authorities that go to that extent, and I shall not be the first to announce such a doctrine. I will do nothing that would have such a direct tendency to convert this state into a place of sanctuary for thieves, robbers and embezzlers |