15 Mont. 245 | Mont. | 1895
— The first error asserted by appellants is that the court overruled two of appellants’ challenges to jurors for cause, when it appeared, as claimed, by the examination of said jurors on their voir dire, that they were disqualified by
There are some questions argued in appellants’ brief as to a forfeiture for nonrepresentation of the St. Lawrence lode mining claim in certain years, but this issue was not made by the pleadings (Wulf v. Manuel, supra, and cases collected), except as to the year 1887. But appellants now abandon any claim of error as to the finding in respondents’ favor in regard to the representation in the year 1887, except as noted in the assignment treated in the next paragraph. There are several other assignments of error mentioned in the brief of appellants, which counsel, on the argument, abandoned.
Another error assigned by appellants is that the court al
When the case came on for trial the said affiant Merrill was present and testified as to the representation of said claim in that year. His affidavit, above described, was also used in evidence. The objection is that it was secondary evidence when the primary evidence was at hand. But, in this case, what the appellants call the primary evidence, namely, Merrill’s own testimony, was introduced. We are of opinion that the introduction of the affidavit was wholly immaterial. In the absence of a statute it would of course not be evidence. But the statute expressly made it evidence. It was not necessary or material in the presence of the fact that the affiant was at the trial and testified orally. But the introduction of the affidavit could have done no possible injury to the appellants. The finding of the court as to the representation in the year 1887 was established by Merrill’s testimony, without the use of the affidavit. That finding is not attacked, and it is conceded by appellants in their argument that the Merrill testimony was sufficient to sustain the finding without the use of the affidavit. It is a clear case of damnum absque injuria.
“ Territory or Montana, \ “County of Silver Bow. jss'
“-, being first duly sworn according to law, deposes and says, that she is a citizen,” etc.
The affidavit was then signed, Mrs. Susan A. Smith. A formal Jurat was attached, signed by the notary public. It is held by this court that the declaratory statement of the location of a mining claim must be under oath. (O’Donnell v. Glenn, 8 Mont. 248; 9 Mont. 452; Metcalf v. Prescott, 10 Mont. 283.) If this affidavit, therefore, is insufficient, the location notice is void. But we are of opinion that the affidavit is sufficient. It is not such an affidavit as was held to be bad in Metcalf v. Prescott, supra. In that case the affidavit was not signed, there was no jurat to it, and there was nothing about it to show that the alleged affiant ever signed it, ever swore to it, or was ever before the notary. But in the affidavit now under consideration the affiant does appear to have been before the notary; it is certified that she swore to it, subscribed it, and her name appears as a subscriber. We said in Metcalf v. Prescott, supra, that “an affidavit is one method of taking an oath; an affidavit is ‘a statement or declaration reduced to writing and sworn or affirmed to before some officer who had authority to administer an oath.’ (Bouvier’s Law Dictionary.)” The affidavit before us was a declaration reduced to writing, and it clearly appears that it was sworn to and subscribed before an officer having authority to administer an oath. (See cases cited in Metcalf v. Prescott, supra; People v. Sutherland, 81 N. Y. 1.)
The last assignment of error is that the evidence is insufficient, in that it does not show that prior to the location of the St. Lawrence claim there was any discovery of a mineral-bearing vein. The location of this claim appears, by the evidence, to have been made with much care. The claim was
We have reviewed all the errors which have been relied upon by counsel in their argument, and we think that none of them can be sustained. The judgment of the district court is therefore affirmed.
Affirmed.