and working the claim until the repeal of the state statute (in 1899 or 1900), acquired upon the repeal of the state statute the rights incident to a valid location, notwithstanding his failure to comply with the requirements of the state law. Such was the situation of the defendant Dyer in the case cited, and there was sufficient evidence in the case at bar to justify the jury in finding that Hamilton occupied the same position with reference to the claim here in dispute. The evidence regarding Hamilton's possession of the Rosamond claim was, to be sure, sharply conflicting, but he did introduce testimony tending to show that he had continuously, up to and after the repeal of the law of 1897, prosecuted work under a system tending to the development of all three claims, and that a part of this work had been done within the boundaries of the Rosamond itself. This was enough to constitute possession of the entire claim to the extent of the visible boundaries: English v. Johnson, 17 Cal. 107, 76 Am. Dec. 574; Dwinnell v. Dyer, 145 Cal. 12, 78 Pac. 247, 7 L. R. A., N. S., 763. The court did not err in instructing the jury, in effect, that if Hamilton had on October 26, 1897, erected the first or initial monument at the place required by the state law and posted the required notices thereon and remained in possession of the claim, no other person could make a valid entry thereon for the purpose of making another location until Hamilton was in default. Under the state law the notice of location was required to be recorded in the office of the county recorder within twenty days after the posting thereof. Without passing upon the 143 question whether the failure to record the notice within the required time worked a forfeiture (see section 6 of act of 1897), it must certainly be held that within the twenty days allowed for recordation, the claim of the locator is valid and no other entry can be made as the foundation or basis of a claim of title. This is the purport and effect of the instruction complained of. Assuming, as we must upon this appeal, that the jury found all controverted questions of fact in favor of the defendants, there is no basis for the claim that the doctrine of Dwinnell v. Dyer protects the plaintiff in its claim. The jury having found that Hamilton took the preliminary steps required to effect a valid location and that he remained thereafter in possession of the claim, the predecessors of the plainti, in attempting to locate the same land within the twenty days allowed to Hamilton for recordation, were entering upon appropriated public lands in the possession of another. Such entry, as is well settled, confers no right to a valid location: Belk v. Meagher, 104 U. S. 279, 26 L. ed. 735.

Various rulings of the court in admitting and rejecting. evidence are assigned as error. We think that none of these

affecting the issues concerning the ownership of the Occidental and the Kid claims were of sufficient consequence to justify a reversal. The witness Cochrane, one of the directors of the plaintiff, was asked on cross-examination whether the plaintiff paid for the assessment work that was done on the claims in 1904 by the Dry Process Company, which held under a contract with plaintiff. Over the objection of the plaintiff that the question was immaterial and irrelevant, he was permitted to answer that the plaintiff did not pay for such work. Whether or not the work was actually paid for was a fact entitled to no weight: Snyder on Mines, sec. 492. But the error in overruling the objection could not have harmed the appellant, inasmuch as the court instructed the jury that whatever work was done by the Dry Process Company in the year 1904 in connection with any of the mining claims claimed by plaintiff inured to the benefit of the plaintiff. It was proper to allow the same witness to testify that the mill which had been put up on the Home No. 1 by the Dry Process Company was of no value for the purpose of reducing the ore there found. This had a bearing upon the question of the good faith of the parties in making the expenditure, and their good 144 faith was a matter proper to be considered by the jury in determining what amount of money had been expended in the development and working of the claims.

The court should have permitted the introduction of affidavits or proofs of labor made by the witnesses Cochrane and Donovan and duly recorded. Such proofs are by statute made prima facie evidence of the facts therein stated (Stats. 1891, p. 219), but inasmuch as both Cochrane and Donovan had testified fully and in detail to all of the material facts stated in their respective affidavits, no substantial injury could have resulted from the exclusion of their written declarations.

A more serious point arises in connection with the admis-, sion of evidence bearing upon the issues as to the locations of the Rosamond, the Lida, and the Fay. N. V. Gray, a witness for plaintiff, gave testimony tending to show that none of the locations claimed by Hamilton had actually been made as locations of quartz claims prior to November 8, 1897; but that all claims located by Hamilton theretofore had been located as placer claims. He further testified that at that time Hamilton had not located the Rosamond as claimed by him and that the Lida when located by Hamilton as a quartz claim was bounded on the south by plaintiff's Rosamond, already located by plaintiff's predecessor in interest, Charles A. Graves. This testimony, if true, established clearly that Graves, and not Hamilton, was prior in

Am. St. Rep., Vol. 137-9

time in the location of the Rosamond, and that he and his successors, if remaining in possession and working the claim until the time of the repeal of the state law, were entitled to hold the same under the rule declared in Dwinnell v. Dyer. The defendants undertook to impeach Gray by proof of contrary statements made by him to one Moffett. With a view to such impeachment Graves was asked upon crossexamination whether or not he had made certain statements to Moffett. The questions did not specify, as required by section 2052 of the Code of Civil Procedure, the time and place of the alleged conversations or the persons present thereat. Objection was duly made upon the ground that the proper foundation had not been laid. This objection. was, however, overruled and the witness answered denying the alleged statements. The substance of the matter alleged to have been stated by Gray to Moffett was that Graves had admitted to Hamilton that in locating the Rosamond he had located upon a claim belonging 145 to Hamilton and that he would take his papers off the claim, which he did. Moffett was subsequently called and was permitted, over the objection of the plaintiff that no proper foundation had been laid for contradicting Gray in that regard, to testify that Gray had made the statements as claimed by defendants. This was error (Birch v. Hale, 99 Cal. 299, 33 Pac. 1088), and error that cannot be regarded as without prejudice to plaintiff. The statement by Gray that Graves had, at the time of the transaction, admitted locating his Rosamond claim upon ground already owned by Hamilton had a strong tendency to throw discredit upon the testimony of Gray that Hamilton had never made any location of the Rosamond ground prior to Graves' location. But beyond all this, Moffett was permitted to testify over the same objection, i. e., that no foundation had been laid, to statements made by Gray which had not in any way been called to the attention of the latter upon his cross-examination. One of these statements was to the effect that Hamilton had arrived at the mines one day ahead of Graves and placed his papers on the claim. This testimony clearly should not have been admitted. It is impossible to determine what effect it may have had on the jury, in leading it to its answer on the very material issue of priority in the location of the claims.

These errors, together with the insufficiency of the evidence to sustain the finding of title by prescription, will necessitate a new trial of the issues affecting the Rosamond.

The order denying a new trial is reversed as to the issues affecting the Rosamond (as claimed by plaintiff), and in all other respects it is affirmed.

The appellant shall recover costs of this appeal against the respondent E. M. IIamilton, the amount of such costs to in

clude the clerk's fee for filing transcript, together with such part of the cost of printing transcript as may by the trial court be fixed as the just proportion thereof made necessary by the issues hereby remanded for a new trial.

Shaw, J., Angellotti, J., Melvin, J., Henshaw, J., and Lorigan, J., concurred.

Rehearing denied.

The Rule That Work on One Mining Claim of a Group Inures to the Benefit of other claims is considered in the recent cases of Copper Mt. Min. etc. Co. v. Butte etc. Co., 39 Mont. 487, 133 Am. St. Rep. 595; Hawgood v. Emery, 22 S. D. 573, 133 Am. St. Rep. 941, and in the note to McKay v. McDougall, 87 Am. St. Rep. 411.

ESTATE OF GIRD.

[157 Cal. 534, 108 Pac. 499.]

ILLEGITIMATES-Adoption by Father.-The Existence of a Family into which the father of an illegitimate can receive the child is essential to an adoption under section 230 of the Civil Code. (p. 134.)

ILLEGITIMATES-Proof of Paternity-Mother as Witness.Where a mother has testified as to the paternity of her illegitimate children, the effect of an attempted impeachment of her testimony, by showing inconsistent statements and conduct, is for the trial court. (p. 135.)

ILLEGITIMATES-Proof of Paternity-Testimony of Mother. Nonaccess by the husband being proved to a reasonable certainty, the positive testimony of the wife that another man is the father of her children is competent evidence and a sufficient basis for findings on the question of paternity. (pp. 135, 136.)

ILLEGITIMATES-Adoption by Father-Sufficiency of Evidence. In determining the sufficiency of the evidence to sustain findings that a father adopted his illegitimate children under section 230 of the Civil Code, the supreme court will not apply a different rule than in other cases. (p. 136.)

ILLEGITIMATES-Proof of Paternity-Mother as Witness.Where both the trial judge and the jury conclude that the mother of an illegitimate child was, as a witness, entitled to full credit on the question of its paternity, their conclusion is not open to review by an appellate court. (pp. 136, 137.)

ILLEGITIMATES-Adoption by Father Treating as Legitimate. Under section 230 of the Civil Code, providing that "the father of an illegitimate child . . . . otherwise treating it as if it were a legitimate child thereby adopts it," the criterion referred to is the treatment usually accorded to legitimate children (p. 137.)

ILLEGITIMATES-Adoption.-The Words "Publicly Acknowledging," in section 230 of the Civil Code, providing what constitutes an adoption of an illegitimate child by its father, are taken in their ordinary sense. And where children are born to a woman living in

the household of a single man on a farm, and they grow up on the farm like other children, go to school, receive no wages, and the man manifests a kindly interest in them and assists in their education, this is sufficient to constitute a "public acknowledgment," although they bear the name of the mother, and although to many persons whom he meets, including his brother, he does not make an express acknowledgment. (pp. 137, 138.)

WORDS AND PHRASES.-"A Family" is a Collective Body of persons living together under one head or manager. A bachelor may have a family. (p. 139.)

into

ILLEGITIMATES-Adoption by Father-Reception Family.-When a man has a home of which he is the head and in which he lives with a woman and others, he has a family within the meaning of section 230 of the Civil Code, into which he may receive an illegitimate child by her. (p. 139.)

ILLEGITIMATES-Adoption by Father.-The Word "Family," in section 230 of the Civil Code, which requires a father adopting an illegitimate child to receive it into his family, means no more at most than that he must have a "home," a settled place of habitation of which he is the head. (p. 139.)

ILLEGITIMATES - Adoption - Reception into Family.-The brothers and sisters of a man who have never lived with him in the state constitute no part of his family within the meaning of section 230 of the Civil Code. (p. 139.)

ATTORNEY-Right to Participate in Argument After Testifying. A party is not prejudiced by a rule of court forbidding an attorney who testifies as a witness from participating in the argument of the case, if he is also represented by another attorney who has ample opportunity to prepare and make argument, and counsel are advised of the rule. (p. 140.)

ATTORNEY-Right of Party to be Heard by Several Counsel. Parties are not entitled as a matter of right to be heard by as many separate attorneys as they see fit to present. The court may exercise a reasonable supervision of such matters, and under ordinary circumstances a party allowed full opportunity to present argument by one counsel cannot complain of any deprivation of his rights in this behalf. (p. 140.)

ILLEGITIMATES-Proof of Paternity-Mother as Witness.Where a mother of illegitimate children has testified as to their paternity, evidence tending to show her unchaste conduct with other men is allowable only in so far as it tends to show that another may be the father of the children, and hence it must be directed to about the time when the child was begotten. (p. 141.)

ILLEGITIMATES-Proof of Paternity.-Evidence of Sexual Intercourse between the alleged father of an illegitimate child and the mother a short time after the birth of the child is admissible on the question of paternity, since it tends to show intimacy between the parties. (p. 141.)

WITNESS-Impeachment by Showing Immorality.-Questions on cross-examination, tending to show the general immorality of the witness or specific acts of immorality, should never be allowed in any case for the mere purpose of discrediting or impeaching the witness. (p. 141.)

WITNESS-Method of Impeachment.-The Code of Civil Procedure prescribes the method of impeaching witnesses, and they can be impeached in no other way than therein prescribed. (p. 141.)

ILLEGITIMATES-Proof of Paternity.-Declarations of the Mother of an illegitimate child, made a few months before its birth, that she was in the family way by another man than the one alleged