*

having any demand against the said corporation, may sue any stockholder or stockholders in any court having cognizance thereof, and recover the same, with costs, provided that no stockholder shall be obliged to pay more in the whole than the amount of the stock he may hold in the said company at the time the debt accrued." Mr. Justice NELSON, delivering the opinion of the court, said: "The term 'demand' is undoubtedly broad enough, if it stood alone, to embrace the claim of the plaintiff. * * We must, however, look at the whole section, and the connection in which it stands, in order to fix its meaning in this case. The stockholders, in the first place, are made jointly and severally holden for the payment of all debts contracted by the corporation or by their agents. The liability is here declared; it is new and unknown to the common law, and is in terms limited to demands ex contractu. The residue, of the section was not intended to extend the liability thus declared, but is in *furtherance of the remedy. *** But the proviso to the section is conclusive upon the point. Any person having a demand against the corporation is authorized to sue any stockholder in any court, etc., provided that no stockholder shall be obliged to pay more in the whole than the amount of the stock he may hold in said company at the time the debt accrued;' thereby clearly qualifying the enlarged meaning of the word 'demand,' and showing satisfactorily that it was used by the legislature to denote a demand arising upon contract. Damage arising upon tort is not a debt accrued, within any reasonable construction of that term. It is apparent, as well from a view of the whole section as from an analysis of its parts, that the intent of the framers of it was only to make the stockholders individually responsible for the debts of the company.'

This reasoning and conclusion, as applied to the present case, is not weakened, but rather strengthened, by the language cited and relied on by counsel in support of his proposition, from the opinion of Mr. Justice STORY in Carver v. Braintree Manuf'g Co. 2 Story, 448, construing a Massachusetts statute, enacting that "every person who shall become a member of any manufacturing corporation shall be liable in his individual capacity for all debts contracted during the time of his continuing a member of such corporation.' He there admits that debts, in the strict sense of the term, include only contracts of the party for the payment of money and nothing else; but, feeling required to construe the statute broadly, as a remedial statute, he gave to the word "debts" a meaning, not unusual, as equivalent to "dues;" and to the word "contracted," a meaning, which, though more remote, he said, was still legitimate, as equivalent to "incurred;" so that the phrase, "debts contracted," in that sense, would be equivalent to "dues owing" "or liabilities incurred;" and would, therefore, cover unliquidated claims arising from torts. But, as we have already seen, the statute involved in this discussion is not a remedial statute, to be broadly and liberally construed, but is a penal statute, with provisions of a highly rigorous nature, to be construed most favor-. ably for those sought to be charged under it, and with strictness against their alleged liability. Under such a rule of construction its language is limited, by its own terms, to a liability on the part of the trustees to debts of the corporation existing and arising ex contractu.

It is finally insisted that a judgment against the corporation, although founded upon a tort, becomes ipso facto a debt by contract, being a contract of record, or a specialty in the nature of a contract. But we have already seen that the settled course of decision in the New York court of appeals rejects the judgment against the corporation as either evidence or ground of liability against the trustees, and founds the latter upon the obligation of the corporation on which the judgment itself rests. And it was decided by this court in the case of Louisiana v. New Orleans, 109 U. S. 285, S. C. 3 SUP. CT. REP. 211, that a liability for a tort, created by statute, although reduced to judgment by a recovery for the damages suffered, did not thereby become

*528

a debt by contract in the sense of the constitution of the United States for. bidding state legislation impairing its obligation, for the reason that "the term contract' is used in the constitution in its ordinary sense as signifying the agreement of two or more minds, for considerations proceeding from one to the other, to do or not to do certain acts. Mutual assent to its terms is of its very essence." The same definition applies in the present instance, and excludes the liability of the defendants, as trustees of the corporation, for its torts, although reduced to judgment.

We find no error in the judgment of the circuit court, and it is accordingly affirmed.

(113 U. S. 527)

ERHARDT 0. BOARO and others.1
(March 2, 1885.)

1. MINING LAWS-DISCOVERY-APPROPRIATION.

In all legislation, whether of congress or of the state or territory, and by all mining regulations and rules, discovery and appropriation are recognized as the sources of title to mining claims, and development by working as the condition of continued ownership, until a patent is obtained.

2. SAME-PROTECTION OF FIRST DISCOVERER UNTIL DEVELOPMENT MADE.

Whenever preliminary work is required to define and describe the claim located, the first discoverer must be protected in the possession of the claim until sufficient excavations and development can be made, so as to disclose whether a vein of deposit of such richness exists as to justify work to extract the metal.

3. SAME-POSTED NOTICE OVER CLAIM-VAGUENESS.

A notice posted upon a claim, and in the following words, "We, the undersigned, claim 1,500 feet in this mineral-bearing lode, vein, or deposit," is not so vague a description of the claim as to deprive the parties posting the same of rights as against subsequent discoverers.

In Error to the Circuit Court of the United States for the District of Colorado.

*This is an action for the possession of a mining claim in Pioneer mining district, in the county of Dolores, and state of Colorado. The claim is designated by the plaintiff as "The Hawk Lode" mining claim, and by the defendants as "The Johnny Bull Lode" mining claim. The plaintiff is a citizen of New York, and the defendants are citizens of Colorado. The complaint is in the usual form in actions for mining claims under the practice in Colorado. It contains two counts. The first alleges, in addition to the citizenship of the parties as stated, the possession by the plaintiff on the seventeenth of June, 1880, of the claim, which is fully described, his right to its possession by virtue of its location pursuant to the laws of the United States and of the state, and the local rules and customs of miners in the district, and by virtue of priority of possession, the wrongful entry upon the premises by the defendants on the thirtieth of that month, their ousting the plaintiff therefrom, and unlawfully withholding the possession thereof from him, to his damage of $50,000. The second count, in addition to the citizenship of the parties, the possession of the claim by the plaintiff, and the subsequent wrongful entry of the defendants, and their ousting him, alleges that the defendants worked and mined in the claim, and dug out and removed from it large quantities of gold and silver bearing ore, of the value of $50,000, to the damage of the plaintiff in that amount. The plaintiff, therefore, prays judgment for the possession of the mining premises, and for damages of $100,000.

The answer of the defendants contains a specific denial of the several allegations of the complaint, except that of the citizenship of the plaintiff, and, as to that, it avers their want of information, and demands proof. And it sets up the discovery of the claim in controversy on the thirtieth of June,

18. C. 8 Fed. Rep. 860.

1880, by the defendants Boaro and Hull, to which they gave the designation of "The Johnny Bull Lode," and its definite location and record within 90 days thereafter, and their subsequent relocation of the claim, September 8, 1880, to avoid a conflict with an adjoining claim. They pray, therefore, that they may be decreed its possession and ownership, in accordance with their rights.

On the trial the plaintiff produced evidence tending to show that on the seventeenth of June, 1880, one Thomas Carroll, a citizen of the United States, while searching, on behalf of himself and the plaintiff, also a citizen, for valuable deposits of mineral, discovered, on vacant unoccupied land of the public domain of the United States, in the Pioneer mining district mentioned, the outcrop of a vein or lode of quartz and other rock bearing gold and silver in valuable and paying quantities; that by an agreement between him and the plaintiff, pursuant to which the explorations were prosecuted, all lodes and veins discovered by him were to be located, one-fifth in his name and four-fifths in the name of the plaintiff; that on the day of his discovery Carroll designated the vein or lode as the "Hawk Lode," and posted at the point of discovery a plain sign, or notice in writing, as follows:

"HAWK LODE.

"We, the undersigned, claim 1,500 feet on this mineral-bearing lode, vein, or deposit.

"Dated June 17, 1880.

JOEL B. ERHARDT, 4-5ths. "THOMAS CARROLL, 1-5th."

-That on the same day, at the point of his discovery, Carroll commenced ex-c cavating a discovery shaft, and sunk the same to the depth of about eighteen inches or two feet on the vein; that on the thirtieth of the month, in the temporary absence of himself and the plaintiff, the defendant Boaro, with knowledge of the rights and claims of the plaintiff and Carroll, entered upon and took possession of their excavation, removed and threw away or concealed the stake upon which their written notice was posted, and, at the point of Carroll's discovery of the vein or lode, erected a stake and posted thereon a discovery and location notice as follows:

"JOHNNY BULL LODE.

"We, the undersigned, claim 1,500 feet on this mineral-bearing vein or lode, running six hundred feet north-east and nine hundred feet south-west, and 150 feet on each side of the same, with all its dips and spurs, angles, and variations.

"June 30, 1880.

ANTHONY BOARO. "W. L. HULL."

The evidence also tended to show that Boaro and Hull entered upon the premises thus described, about July 21, 1880, and remained thereafter continuously in possession; that threats of violence to the plaintiff and Carroll, if they should enter upon the premises, or attempt to take possession of them, were communicated to Carroll as having been made by Boaro early in August following; that in consequence of such threats, and the possession held by Boaro, Carroll was prevented from resuming work upon and completing the discovery shaft, and from entering upon any other part of the lode or vein, and performing the acts of location required by law within the time limited. The evidence also tended to show that within 90 days from the discovery of the lode by Carroll, one French, on behalf of the plaintiff and Carroll, secretly caused the boundaries of the claim to be marked by six substantial posts, so as to include the place of discovery and the premises in controversy and filed in the office of the recorder of the county a location certificate setting forth the name of the lode, the date of the location, the names of the plaintiff and v.58-36

531

€89.

Carroll as locators, and the course of the lode or vein; and giving*such a description of the claim, with reference to natural objects and permanent landmarks, as would suffice to identify the same with reasonable certainty.

The evidence offered by the defendants tended to rebut that of the plaintiff, and to show that on the thirtieth of June, 1880, when Boaro entered upon the ground in controversy, he found nothing on the surface to indicate a vein or lode, or that any excavation had been made or stake erected, as alleged by the plaintiff, or that any portion of the ground claimed by the defendants had ever been previously located or claimed; that their discovery cut was commenced at a point 35 feet distant from the point described and claimed by Carroll as the point at which he had begun to sink the discovery shaft of the "Hawk Lode,” and erected his stake and posted his notice, and that the top of the vein was at least four feet below the surface; that Carroll had abandoned all claim to the premises in controversy, and that his omission to perform the required location work was due to such abandonment, and not to any threats of the defendants, or of any of them, nor to the occupation of the ground by Boaro and Hull, or either of them; that neither the plaintiff nor Carroll ever demanded possession of or asserted any title to the premises until the working of the claim by the defendants had shown it to be valuable.

The evidence of the defendants also tended to show that they had commenced work upon the claim about July 21, 1880, and sank and excavated an open cut, striking the vein or lode at the depth of 10 feet or more, and exposed therein a vein of rock in place bearing gold and silver; that no mineral nor any indications of a vein or lode were found until they reached the depth of seven or eight feet; and that subsequently, and within the time limited by law, they marked the bounds of their claim on said lode, called by them the "Johnny Bull Lode," and recorded a location certificate, describing their claim by reference to natural objects and permanent land-marks, and complying in all respects with the requirements of the law.

The evidence being closed, the court was, among other things, requested to instruct the jury that from and after the date of the discovery by a citizen of the United States, upon vacant, unoccupied mineral lands, of the outcrop of a vein or body of mineral-bearing rock, the discoverer is entitled to the possession of the point at which he made his discovery, and of such a reasonable amount of adjacent ground as is necessary or incidental to the proper prosecution of the work of opening up or exposing the vein or body of mineral-bearing rock to the depth and within the time required by law, and that to such extent he is protected by law in his possession for the period of 60 days from the date of his discovery. But the court refused to give this instruction, and the plaintiff excepted to the refusal. The court charged the jury, among other things, that it was in evidence, and seemed to be conceded, that the notice on the stake put up by Carroll contained no specification or description of the territory claimed by the locators, as that they claimed a number of feet on each side of the discovery, or in any direction therefrom, and "in this respect," said the court, "the notice was deficient, and under it the locators could not claim more than the very place in which it was planted. Elsewhere on the same lode or vein, if it extended beyond the point in controversy, any other citizen could make a valid location; for this notice, specifying no bounds or limits, could not be said to have any extent beyond what would be necessary for sinking a shaft;" and also, that to entitle the plaintiff to recover, "it should appear from the evidence that Boaro entered at the very place which had been taken by Carroll, because, as Carroll's notice failed to specify the territory he wished to take, it could not refer to or embrace any other place than that in which it was planted." To the giving of these instructions the plaintiff also excepted. The defendant obtained a verdict, and to review the judgment entered thereon the plaintiff brings the case here on writ of error.

Elihu Root, for plaintiff in error. T. M. Patterson and C. S. Thomas, for defendant in error.

*FIELD, J. As seen by the statement of the case, the court below, in its charge, assumed that the notice on the stake, placed by Carroll at the point of his discovery, contained no specification or description of the ground claimed by the locators, because it did not designate the number of feet claimed on each side of that point, or in any direction from it. The court accordingly instructed the jury that the notice was deficient, and under it the locators could not claim any more than the very place in which the stake was planted, and that elsewhere on the same lode beyond the point of discovery any other citizen could make a valid location. In this instruction we think the court erred. The statute allows the discoverer of a lode or vein to locate a claim thereon to the extent of 1,500 feet. The written notice posted on the stake at the point of discovery of the lode or vein in controversy, designated by the locators as "Hawk Lode," declares that they claim 1,500 feet on the "lode, vein, or deposit.” It thus informed all persons, subsequently seeking to excavate and open the lode or vein, that the locators claimed the whole extent along its course which the law permitted them to take. It is, indeed, indefinite in not stating the number of feet claimed on each side of the discovery point; and must, therefore, be limited to an equal number on each side; that is, to 750 feet on the course of the lode or vein in each direction from that point. To that extent, as a notice of discovery and original location, it is sufficient. Greater particularity of description of a location of a mining claim on a lode or vein could seldom be given until subsequent excavations have disclosed the course of the latter. These excavations are to be made within 60 days after the discovery. Then the location must be distinctly marked on the ground, so that its boundaries can be readily traced, and, within one month thereafter, that is, within three months from the discovery, a certificate of the location must be filed for record in the county in which the lode is situated, containing the designation of the lode, the names of the locators, the date of the location, the number of feet claimed on each side of the center of the discovery" shaft, the general course of the lode, and such a description of the claim, by reference to some natural object or permanent monument, as will identify it with reasonable certainty. Rev. St. § 2324; Gen. Laws Colo. §§ 1813, 1814. But during the intermediate period, from the discovery of the lode or vein and its excavation, a general designation of the claim by notice, posted on a stake placed at the point of discovery, such as was posted by Carroll, stating the date of the location, the extent of the ground claimed, the designation of the lode, and the names of the locators, will entitle them to such possession as will enable them to make the necessary excavations and prepare the proper certificate for record. The statute of Colorado requires that the discoverer, before a certificate of location is filed for record, shall, in addition to posting the notice mentioned at the point of discovery, sink a shaft upon the lode to the depth of at least 10 feet from the lowest part of such shaft under the surface, or deeper, if necessary, to show a defined crevice and to mark the surface boundaries of the claim. Before this work could be done by the plaintiff and his co-locator, the ground claimed by them was taken possession of by the defendants, the stake at the point of discovery, upon which the notice was posted, was removed, and Carroll was thereby, and by threats of violence, prevented from re-entering upon the premises and completing the work required to perfect their location and prepare a certificate for record; at least, the evidence tended to establish these facts. If they existed,—and this was a question for the jury, the plaintiff was entitled to recover possession of the premises. To the extent of 750 feet on the course of the lode on each side from the point of discovery, he and his co-locator were entitled to protection in the possession of their claim. They did not lose their right to perfect their location, and perform the necessary work for that purpose, by the wrong