is now pending in said court of errors and appeals in the state of New Jersey." It was further represented that petitioner was entitled, 295]and *desired, to have the verdict and all the proceedings on his trial, various objections and exceptions thereto having been made and taken.adjudicated by the highest courts of New Jersey; that on the sixth day of April last past your petitioner's counsel, in open court, in the said Essex oyer and terminer, in the presence of the prosecutor, presented a writ of error, signed by the clerk of the supreme court of New Jersey, sealed with the seal of said court, from the said supreme court to the said oyer and terminer; that the said court would not allow the writ, but permitted it to be filed with the clerk of said court. That said writ was presented under and by virtue of the act of 1881 of New Jersey. That the said act is valid and effectual; that the act of 1878 of New Jersey made writs of error writs of right in all cases;" and further, "that the presiding judge of the said oyer and terminer court has instructed the clerk of Essex county, who is the clerk of said oyer and terminer, not to furnish your petitioner's counsel with a copy of the record and proceedings in this case; that the supreme court of New Jersey has refused your petitioner a stay of execution, and your petitioner has exhausted all remedies in the state court."

The petition then assigned in repetition the several grounds on which it was contended that the conviction was unlawful, to the effect that the indictment was insufficient; that petitioner had been denied by the state of New Jersey the equal protection of the laws; and that petitioner's conviction not only was in violation of the laws of New Jersey but of the 14th Amendment of the Constitution of the United States, because not by due process of law. And it was further alleged that, under and by virtue of the sentence, the sheriff of Essex county threatened to execute the sentence of death on the petitioner, May 16, to which time he had been reprieved.

Messrs. Arthur English and Thomas 8. Henry for appellant.

Mr. Elvin W. Crane for appellee. 296]*Mr. Chief Justice Fuller delivered the opinion of the court:

In Whitten v. Tomlinson, 160 U. S. 231 [ante, 406], the power vested in the courts and judges oft he United States to grant writs of habeas corpus for the purpose of inquiring into the cause of the restraint of liberty of persons held in custody under state authority, in alleged violation of the Constitution, laws, or treaties of the United States, is considered, and the principles which should govern their action in the exercise of this power stated; and attention is there called to the necessary and settled rule that, "in a petition for a writ of habeas corpus, verified by the oath of the petitioner, as required by U. S. Rev. Stat. § 754, facts duly alleged may be taken to be true, unless denied by the return or controlled by other evidence, but no allegation of fact in the petition can be assumed to be admitted, unless distinct and unambiguous;" and that “the general allegations in the petition, that the petitioner is de-I

tained in violation of the Constitution and laws of the United States, and of the Constitution and laws of the particular state, and is held without due process of law, are averments of mere conclusions of law and not of matters of fact. Re Cuddy, 131 U. S. 280, 286 [33: 154,157].

1. Having jurisdiction of the offense charged and of the accused, it was for the state courts to determine whether the indictment in this case sufficiently charged the crime of murder in the first degree. Caldwell v. Texas, 137 U. S. 692, 698 [34: 816,818]; Bergemann v. Backer, 157 U. S. 655 [39: 845].

In the latter case it was decided, in reference to a similar objection to the indictment to that made here, and upon an examination of the statutes and judicial decisions of the highest courts of New Jersey, that it could not be held that the accused was proceeded against under an indictment based upon statutes denying to him the equal protection of the laws, or that were inconsistent with due process of law, as prescribed by the 14th Amendment to the Constitution. Graves v. State, 45 N. J. L. 203, 358; Titus v. State, 49 N. J. L. 36. We do not deem it necessary to reconsider in this case the conclusion there reached.

*2. In McKanev. Durston, 153 U. S. 684 [297 [38: 867], we held that an appeal to a higher court from a judgment of conviction is not a matter of absolute right independently of constitutional or statutory provisions allowing it, and that a state may accord it to a person convicted of crime upon such terms as it thinks proper; and in Bergemann v. Backer, supra, that the refusal of the courts of New Jersey to grant a writ of error to a person convicted of murder, or to stay the execution of a sentence, will not itself warrant a court of the United States in interfering in his behalf by writ of habeas corpus.

Appellant insists that he has been denied the equal protection of the laws because he has been deprived of a writ of error for the review of the record and proceedings in his case in violation of the laws of New Jersey.

Section 83 of the criminal procedure act of New Jersey, brought forward from § 13 of an act of March 6, 1795 (Paterson's N. J. Laws, 162), provided that "writs of error in all criminal cases not punishable with death shall be considered as writs of right, and issue of course; and in criminal cases punishable with death writs of error shall be considered as writs of grace, and shall not issue but by order of the chancellor for the time being, made upon motion or petition, notice whereof shall always be given to the attorney general or the prosecutor for the state." N. J. Rev. 283. By an act approved March 12, 1878, this section was amended so as to read: "Writs of error in all criminal cases shall be considered as writs of right, and issue of course; but in criminal cases punishable with death, writs of error shall be issued out of and returnable to the court of errors and appeals alone, and shall be heard and determined at the term of said court next after the judgment of the court below, unless, for good reasons, the court of errors and appeals shall continue the cause to any subsequent term." N. J. Rev. Supp. 209, 210. In Entries v. State, 47 N. J. L. 140, a writ

of error under this act was dismissed by the | rule the action of the state courts in that recourt of errors and appeals, the court holding gard, since a denial of the right altogether that such a writ would not go directly from would constitute no violation of the Constituthat court to the oyer and terminer, and that tion of the United States. What petitioner "the legislature cannot sanction such a proceed- asks us to do is to construe the laws of New 298] ing, as it is one of the prerogatives of Jersey for ourselves, hold that they give a writ the supreme court to exercise, in the first in- of error to the supreme court, and discharge stance, jurisdiction in such cases." petitioner on the ground, either that the courts of New Jersey have arrived at a different conclusion and denied the writ, or have granted it and refused to make it effectual. In either aspect, we are unable thus to revise the proceedings in those courts.

By an act of March 9, 1881, it was provided in the 1st section that "in case a writ of error shall be brought to remove any judgment rendered in any criminal action or proceeding, in any court of this state, and such writ of error shall be presented to such court, the said writ of error shall have the effect of staying all proceedings upon the said judgment, and upon the sentence which the court or any judge thereof may have pronounced against the person or persons obtaining and prosecuting the said writ of error, pending and during the prosecution of such writ of error;" and by the 2d section, that pending the prosecution of such writ of error, the court may require the party prosecuting the writ to give bail, "provided, that this section of this act shall not apply to capital cases." N. J. Rev. Supp. 210. And by an act passed May 9, 1894, it was provided that the entire record of the proceedings on the trial of any criminal cause might be returned by the plaintiff in error with the writ | of error and form part thereof, and if it appeared from said record that the plaintiff in error had suffered manifest wrong or injury in the matters therein referred to, the appellate court might order a new trial. N. J. Laws 1894, 246.

Clearly whether a writ of error in criminal cases punishable with death can or cannot be prosecuted under these various acts, unless allowed by the chancellor of the state under € 83 of the criminal procedure act, and, if so, under what circumstances and on what conditions, are matters for the state courts to deter mine. Petitioner alleged that an appeal from the chancellor's order refusing a writ of error was pending in the court of errors and appeals, and also that a writ of error signed by the clerk of the supreme court of New Jersey, and sealed with the seal of that court, from the supreme court to the over and terminer, had been presented to the latter court under the act of 1881, but that the court of oyer and terminer would not allow the writ, and instructed its clerk not to furnish a copy of the record and proceedings. It is, however, averred that the 299] supreme court had refused a stay of execution,so that it would appear that if that court really issued a writ of error, it had either arrived at the conclusion that this was improvidently done or that for other reasons it could not be maintained.

And the petition set up no action by the supreme court to compel its writ to be respected and no effort on petitioner's part to procure such action, nor any effort to supply a copy of the record and proceedings. Ableman v. Booth, 62 U. S. 21 How. 506, 512 [16: 169,172]. The averments in reference to this matter are so vague and indefinite that interference might well be declined for that reason. At all events, inasmuch as the right of review in an appellate court is purely a matter of state concern, we can neither anticipate nor over

3. It is further contended that the petitioner was denied due process of law and the equal protection of the laws in that one of the jurors by whom he was tried was an alien. The allegation of the petition is "that Samuel Ader, a juror on the jury that convicted your petitioner, is not and never was a citizen of the United States of America."

Nothing is said as to when this matter came to petitioner's knowledge, and, for ought that appears, it may have been inquired into by the courts of New Jersey, and the fact determined to be otherwise than alleged, or the objection may have been raised after verdict and overruled because coming too late. The statute of New Jersey provides that every petit juror returned for the trial of any action of a criminal nature shall be a citizen of the state, and resident within the county from which he shall be taken, and above the age of twenty- [300 one and under the age of sixty-five years; and if any person who is not so qualified shall be summoned as a juror on a trial of any such action in any of the courts of the state, it shall be good cause of challenge to any such juror, "Provided, That no exception to any such juror on account of his citizenship, or age, or any other legal disability, shall be allowed after he has been sworn or affirmed." N. J. Rev. 532. This proviso is brought forward from an act of November 10, 1797 (N. J. Acts, 22d Gen. Assem. 1797, 250). The Constitution of New Jersey of 1776 provided that "the inestimable right of trial by jury shall remain confirmed as a part of the law of this colony, without repeal, forever." And the Constitution of 1844 declares that "the right of trial by jury shall remain inviolate." It is urged that the above-mentioned proviso, which has been part of the laws of New Jersey for nearly one hundred years, should now be held by this court contrary to the Constitution of that state, although the courts of the state may have held it in this case in harmony therewith, and have certainly not pronounced it invalid.

The line of argument seems to be that by the common law as obtaining in New Jersey an alien was disqualified from serving on a jury; that the disqualification was absolute; that the common law could not be changed in that particular under the state Constitution; that the proviso was therefore void; and that, if an alien sat upon a jury, the common-law right of trial by jury would have been invaded. So far as the petition shows, this contention may have been disposed of adversely to petitioner by the state courts; and moreover, we are of opinion that in itself it cannot be sustained as involving an infraction of the Constitution of the United States.

In Hollingsworth v. Duane, reported in Wall., not indispensable to hold that that case was C. C. 147, and also, but imperfectly, in 4 not the law, but limited its application to capDall. 353 [1: 864], it was held by the circuit ital cases; and in Chase v. People, 40 Ill. 352, court of the United States for the eastern dis- it was finally overruled. Mr. Justice Breese trict of Pennsylvania, at October term, 1801, spoke for the court, and it was held that alienthat alienage of a juror is cause of challenge, age in a juror was not a positive disqualificabut is not per se sufficient to set aside a verdict, tion, but ground of exemption or of challenge and this whether the party complaining knew and nothing more. of the fact or not; and that this was the rule at common law as shown by authorities cited from the Year Books and otherwise. 301]*In Wassum v. Feeney, 121 Mass. 93, 23 Am. Rep. 258, the supreme judicial court of Massachusetts held that "a verdict will not be set aside because one of the jurors was an infant, where his name was on the list of jurors returned and impaneled, though the losing party did not know of the infancy until after the verdict." And Mr. Justice Gray, then chief justice of Massachusetts, delivering the opinfon, said: "When a party has had an opportunity of challenge, no disqualification of a juror entitles him to a new trial after verdict. This convenient and necessary rule has been applied by this court, not only to a juror disqualified by interest or relation (Jeffries v. Randall, 14 Mass. 205; Woodward v. Dean, 113 Mass. 297), but, even in a capital case, to a juror who was not of the country or vicinage, as required by the Constitution. Declaration of Rights, art. 13; Anonymous, cited by Jackson, J., in 1 Pick. 41, 42. The same rule has been applied by other courts to disqualification by reason of alienage, although not in fact known until after verdict. Hollingsworth v. Duane, 4 U. S. 4 Dall. 353 [1: 864], Wall. C. C. 147; State v. Quarrel, 2 Bay, 150, 1 Am. Dec. 637; Presbury v. Com. 9 Dana, 203; Rex v. Sutton, 8 Barn. & C. 417, same case, nom. Rex v. Despard, 2 Man. & R. 406. In Re Chelsea Waterworks Co. 10 Exch. 731, Baron Parke said: 'In the case of a trial by jury de medietate lingua, which by the 47th section of the jury act is expressly reserved to an alien, he may not know whether proper persons are on the jury; yet if he was found guilty, and sentenced to death, the verdict would not be set aside because he was tried by improper persons, for he ought to have challenged them.' See also Case of a Juryman, 12 East, 231, note; Hill v. Yates, 12 East, 229."

The great weight of authority is to that effect, 302] though there are a few cases to the contrary. Thus in Guykowski v. People, 2 Ill. 476, it was held that a new trial should be granted because one of the jurors was an alien when sworn, of which fact the defendant was ignorant at the time; but in Greenup v. Stoker, 8 Ill. 202, the supreme court of Illinois, through Purple, J., reluctantly concluded that it was

Wharton's Case, Yelv. 24; 1 Co. Inst. 158a; 21 Vin. | Abr. 274, Trial; 2 Hale, P. C. chap. 36, 271; 2 Hawk. P.C.568, 572; Queen v. Hepburn, 11 U.S. 7 Cranch, 290 [3: 348]: Brewer v. Jacobs, 22 Fed. Rep. 217; Gillespie v. State, 8 Yerg. 507, 29 Am. Dec. 137; Costly v. State, 19 Ga. 614, 628; Siller v. Cooper, 4 Bibb, 90; State 160 U.S.

It has been held that, under the Constitution of New York, the defendant in a capital case cannot consent to be tried by less than a full jury of twelve men (Cancemi v. People, 18 N. Y. 128), and that, under the Constitution of California, a law authorizing a change of the place of trial of a criminal action to another county than that where the crime was committed, on application of the prosecution without defendant's consent, was invalid (People v. Powell, 87 Cal. 348, 11 L. R. A. 75); but in neither of these cases was it intimated that objection to individual jurors could not be waived by the accused, or that trial by jury would be violated if persons who were open to challenge happened to be impaneled. The disqualification of alienage is cause of challenge propter defectum, on account of personal objection, and if, voluntarily or through neg. ligence or want of knowledge, such objection fails to be insisted on, the conclusion that the judgment is thereby invalidated is wholly inadmissible. The defect is not fundamental as affecting the substantial rights of the accused, and the verdict is not void for want of power to render it. United States v. Gale, 109 U. S. 65, 72 [27: 857, 859]. Whether, where the defendant is without fault and may have been prejudiced, a new trial may not be granted on such ground, is another question. That is not the inquiry here, but whether the law of New Jersey is invalid under the Constitution of that state, and this judgment void because one of the jurors who tried petitioner may have been an alien. If,prior to the filing of the petition, the objection had been *brought before the state[303 courts and overruled, we perceive no reason for declining to be bound by their view of the effect of the state Constitution; and, if the matter had not been called to their attention, it does not appear why that should not have been or should not now be done.

In any view, we cannot hold, on this petition, that petitioner has been denied due process of law or that protection of the laws accorded to all others similarly situated.

The circuit court was right in declining by writ of habeas corpus to obstruct the ordinary administration of the criminal laws of New Jersey through the tribunals of that state in Wood v. Brush ("Re Wood") 140 U. S. 278, 289 [35: 505, 509], and its order is affirmed.

v. Bunger, 14 La. Ann. 465; State v. Beeder, 44 La Ann. 1007: Forman v. Hunter, 59 Iowa, 550; State v. Patrick, 3 Jones, L. 443; Brown v. State, 52 Ala. 345; Brown v. People, 20 Colo. 163; State v. Jackson, 27 Kan. 581, 41 Am. Rep. 424, and cases there col❘lected.

435

WILLIAM HAWS ET AL., Appts.,

v.

VICTORIA COPPER MINING COMPANY. (See S. C. Reporter's ed. 303-319.)

Jurisdiction of this court-order on new trialdescription of property-objection-suit for mining claim-notice of location-marking boundaries-testimony.

Mr. Justice White delivered the opinion of the court:

The Victoria Copper Mining Company, a corporation created under the laws of the state of Illinois, brought its action to recover possession of two mining claims known as the "Antietam lode" and the "Copper the Ace lode." The mines thus designated were fully and specifically described in the complaint, which averred that the defendant had by force and violence 1. Under the act of April 7, 1874 (18 Stat. at L. 27), ousted the complainants from the property. the jurisdiction of this court on appeal from the In addition to the averments essential to jusjudgment of a territorial supreme court is lim-tify a judgment for possession, the complaint ited to determining whether the facts found are contained allegations deemed to be sufficient sufficient to sustain the judgment, and to review- to authorize the granting of an injunction, ing the rulings of the court on the admission or which was prayed for, restraining the defendrejection of testimony, when exceptions have ant from taking or shipping or selling ore been duly taken. 2. The objection that the trial court did not extracted or to be extracted from the mines in consider, on the motion for new trial, affidavits controversy. The prayer of the complaint of newly discovered evidence, is answered by was for possession and $25,000 damages, the the order which recites that it was heard upon value of ore averred to have been previously unlawfully taken by the defendants. The defendants jointly answered, specifically denying each allegation of the complaint, and by cross-complaint, Edward W. Keith. Samuel R. Whitall, William V. R. Whitall, and Michael Smith alleged that they were the owners in fee of the mines, subject to the paramount title of the United States, and they prayed that their title be quieted. The aver ments of the cross-bill were traversed by specific denials. Upon these issues, a jury having first been waived, the case was tried by the court, which found the following facts, which findings were tantamount to concluding that the averments of the bill of complaint had been proved:

such affidavits.

8. Findings sufficiently describe property where the judgment and complaint together furnish means to identify the property.

A party cannot avail himself on appeal of the objection that a finding is not supported by the evidence, where he omits to object in the trial court to such finding and thereby causes the omission from the record of the testimony in supporting it.

5. An employee who makes a relocation of a mining claim on which he is employed to work, and takes forcible possession thereof, cannot set up any flaw in the title of his employer, in an action

by the latter to recover possession.

3. A notice of mining location is not required to be recorded when there is no mining district recorder, and the rules and regulations of the district are no longer in force and effect.

7. Mining locations distinctly marked on the ground so that their boundaries can be readily traced are sufficient under U. S. Rev. Stat. 2324, as against subsequent locators, irrespective of the posting of notices.

"Findings of Fact.

"First. That Lewis R. Dyer, the locator of the two mining claims described in the complaint herein, called respectively *Antie-[305 tam lode' and Copper the Ace lode,' and situated & Testimony of the amount expended in working in Uintah county, territory of Utah, at and a mine, by plaintiff in an action to recover it, is prior to the time of locating the same, discov admissible in view of U. S. Rev. Stat. § 2324, re-ered and appropriated a mineral vein or lode of rock in place.

quiring a certain amount of labor in improvements on it each year.

[No. 66.]

"Second. That at the time of discovery of said vein or lode and the location of said min

Argued November 15, 18, 1895. Decided Decem-ing claims, the land included within the

ber 23, 1895.

APPEAL from a judgment of the Supreme

Court of the Territory of Utah, affirming a judgment of a lower court of that territory in favor of the plaintiff, the Victoria_Copper Mining Company, against William Haws et al., defendants, for the recovery of two mining claims. Affirmed.

See same case below, 7 Utah, 515. 304] *The facts are stated in the opinion.

Messrs. Frederic D. McKenney, S. F. Phillips, Charles H. Toll, and D. V. Burns for appellants.

Messrs. C. H. Armes, A. A. Birney, and C. C. Dey for appellee.

NOTE. As to ownership of mines; United States

statutes as to right of support of surface,-see note to United States v. Castillero, 17: 448.

As to title to water by appropriation; common-law rule; rule of mining states,-see note to Atchison v. Peterson, 22: 414.

boundaries of said mining claims was public
mineral land, wholly unoccupied and un-

claimed.

"Third. That after the discovery of said vein or lode or mineral-bearing rock in place, to wit, on the 17th day of September, 1887, said Lewis R. Dyer, being a citizen of the United States, located the two mining claims described in the complaint herein by writing on a tree standing at, or in close proximity to, the place or places of discovery of said vein or lode the two notices of location, one for each of said claims.

"Fourth. That said notices each described the respective claims by reference to said tree; also respectively described the boundaries of each claim by courses and distances from said tree; that each of said notices contained the name of the locator and date of location; that said tree was a sufficient natural object by which said claims and each of them could be identified.

1

"Fifth. That soon after the writing of said notices of location and during the month of September, 1887, said Dyer marked sufficiently on the ground the boundaries of said mining claims and each of them by setting suitable stakes or posts at the corners of each of said claims; also at the center of the respective side lines of each of said claims; also by writing on the stakes to identify them with reference to the respective claims, and securing said stakes by stones piled around them.

"Sixth. That thereafter, on the 13th day of February, 1888, said Dyer caused a copy of said location notices and each of them to be recorded in the office of the county recorder of said county of Uintah; that there was not at that time, or at the time of locating said claims, any mining district recorder; that said mining claims were situated in what had 306] *been known as the 'Carbonate mining district;' that the rules and regulations of said mining district had long prior to the 17th day of September, 1887, fallen into disuse, and were not then, or for a long time prior thereto had not been, in force and effect.

"Seventh. That the plaintiff is a corporation duly organized and existing under the laws of the state of Illinois, and was so organized on the 15th day of May, 1888.

"Eleventh. That prior to the said 9th day of June, 1889, said William Haws was an employee of the plaintiff and its grantors working on said mining claims; that said Haws so worked from the 11th day of February, 1888, until the 13th day of August, 1888, and from October 24, 1888, to December 21, 1888, and again resumed work in the month of March, 1889, and continued to work for plaintiff up to and including the 1st day of June, 1889, when he voluntarily left the employ of plaintiff; that while at work for plaintiff in the year of 1888 said Haws formed the secret intention of taking possession of said mines and mining claims.

"Twelfth. That on or about the 7th day of June, 1889, said Haws procured the defendant Heber Timothy to join and assist him in making a location of the ground described in the complaint herein, which was then being actually possessed and worked by plaintiff, and on that day said Haws and Timothy, without right of entry on the ground, set sufficient stakes to mark the boundaries of the two claims, which they called 'Scottish Chief' and 'Ontario mine' lode mining claims; that they also posted on a stake placed near the place of discovery of plaintiff's aforesaid claims loca tion notices for each of said claims; that the location notice of said Scottish Chief lode was signed by said Heber Timothy and William Haws, and recited that the location was a 'relocation' of the Antietam lode; that the said location notice of the Ontario mine lode was signed by said William Haws, and recited that the location was a 'relocation' of the Cop. per the Ace.

that said Scottish Chief and Ontario mine location notices were recorded on the 11th day of June, 1889, in the records of said Carbonate mining district.

"Eighth. That on the 4th day of May, 1888, said Lewis R. Dyer duly transferred an equal undivided one half of said mining claims, and each of them, to Edward A. Ferguson and August Bohn, Jr., and that thereafter, to wit, on the 28th day of May, 1888, said Lewis R. Dyer, Edward A. Ferguson, and August Bohn, Jr., duly transferred and conveyed said min- "Thirteenth. That on the 4th day of June, ing claims and each of them to the plaintiff 1889, a mining district was organized includcompany. ing within its boundaries the ground heretoNinth. That since said 17th day of Septem-fore described called the 'Carbonate district;' ber, 1887, until the 10th day of June, 1889, said Dyer and his grantee, the plaintiff herein, continuously worked upon and improved said mining claims and each of them, and actually possessed the same, and have expended in said work and improvements upward of the sum of $7,000; that said mining claims are contiguous to each other, and were worked jointly and in common; that the work done and improvements made on said claims were such as did develop said claims and each of them and that for each of the calendar years of 1887, 1888, and 1889 more than $100 worth of work was actually done on each of said claims by said Dyer and his grantee, the plaintiff herein.

"Tenth. That on Sunday night, the 9th day of June, 1889, while said plaintiff was in actual possession of said claims and working the same, by its agents and employees, the defendant William Haws went upon the grounds of said mining claims with two men, and wrongfully took possession of the same and the working upon the same, prepared to hold such possession by force, and did wrongfully keep the plaintiff and its employees from thereafter working on said mining claims, and wrongfully excluded them therefrom, and that said William Haws and Heber Timothy and their 307]grantees, the other defendants therein, have ever since wrongfully excluded the plaintiff from the possession of said mining claims.

"Fourteenth. That on or about the 12th day of September, 1889, while holding possession of said mining claims of plaintiff aforesaid, under the wrongful entry of said Haws aforesaid, *aided by said Timothy, with the consent[308 of said Haws and at his instigation, and for the purpose of omitting the name of said Haws from the location notices, in anticipation of proceedings being taken by plaintiff to regain possession of its said mining claims, set a discovery stake within the limits and boundaries of plaintiff's said mining locations and not far distant from the place of discovery of plaintiff's said mining claims, and then and there placed two notices of locations signed by said Heber Timothy, claiming to locate two mining claims under the respective names of 'Valao' and 'Copper King,' and set sufficient stakes and marks to describe and designate the boundaries of said mining locations and each of them.

"Fifteenth. That said Haws was to have and own by agreement made with said Timotby all of said Copper King and one half of said Valao; that said claims include substantially the same ground included in and covered by plaintiff's aforesaid claims. "Sixteenth. That on the 9th day of August,