It does not limit the power of the state in
the prosecution of criminals.

Re McKee, 19 Utah, 241, 57 Pac. 23; Re
Maxwell, 19 Utah, 502, 57 Pac. 412.

The record in this case does not show The 14th Amendment was not designed to that Minder was present in court when the interfere with the police power of states. sentence of death was passed upon him; nor Barbier v. Connolly, 113 U. S. 31, 28 L. ed. does it show that he was asked by the court 924, 5 Sup. Ct. Rep. 357; Powell v. Pennsylif he had any reason to urge against the im-vania, 127 U. S. 683, 32 L. ed. 256, 8 Sup. Čt. position by the court of the sentence of Rep. 992, 1257. death. This is a failure of due process of law as guaranteed by the 14th Amendment. Ball v. United States, 140 U. S. 119, 35 L. ed. 377, 11 Sup. Ct. Rep. 761; Schwab v. Berggren, 143 U. S. 442, 36 L. ed. 218, 12 Sup. Ct. Rep. 525; French v. State, 85 Wis. 400, 21 L. R. A. 402, 55 N. W. 566; Cook v. State, 60 Ala. 39, 31 Am. Rep. 31; Wilson v. State, 87 Ga. 584, 13 S. E. 566; Barton v. State, 67 Ga. 653; Nolan v. State, 55 Ga. 521, 53 Ga. 138; Wade v. State, 12 Ga. 25; Gilligan v. Com. 3 Va. Sup. Ct. Rep. 77, 37 S. E. 962; Smith v. State, 60 Ga. 431; Clark, Crim. Proc. 423.

Mr. J. M. Terrell argued the cause and filed a brief for defendant in error:

"Due process of law" and "by the law of the land" are intended to convey the same meaning.

Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; Re Lowrie, 8 Colo. 499, 54 Am. Rep. 558, 9 Pac. 489.

These requirements are met by any law which embraces all persons who are in, or who may come into, like situations and circumstances.

Vanzant v. Waddel, 2 Yerg. 270; Jones v. Perry, 10 Yerg. 59, 30 Am. Dec. 430.

Or any general and public law which is equally binding upon every member of the community.

State use of Roane County v. Burnett, 6 Heisk. 186.

An ordinance making it unlawful to sell lottery tickets has been held to be a police regulation, and not repugnant to the constitutional requirement of due process of law, though it provides for arrest, summary punishment, and sentence without trial by jury. State v. Dobard, 45 La. Ann. 1412, 14 So. 253.

The 14th Amendment does not give the
right to indictment by a grand jury in fel-
ony cases.

Hurtado v. California, 110 U. S. 538, 28
L. ed. 239, 4 Sup. Ct. Rep. 111, 292.

It does not limit the state's power over
crimes, except to guarantee equal justice.
Leeper v. Texas, 139 U. S. 467, 35 L. ed.
226, 11 Sup. Ct. Rep. 577.

The denial of compulsory process to enable a person charged with a crime to obtain witnesses at the trial in the court below does not invalidate the judgment.

Ex parte Harding, 120 U. S. 782, 30 L. ed. 824, 7 Sup. Ct. Rep. 780.

*Mr. Chief Justice Fuller delivered the[559] opinion of the court:

At the November term, 1900, of the superior court of Bibb county, Georgia, Isadore Minder was tried on an indictment for murder, convicted, and sentenced to death. A "By the law of the land" is most clearly motion for new trial was made upon the intended the general law, a law which hears ground, among other things, that the court before it condemns, which proceeds upon in- erred in refusing to continue the case on acquiry, and renders judgment only after count of the absence of material witnesses trial. The meaning is that every citizen residing in Alabama, whose names were giv shall hold his life, liberty, property, and im- en. The defense was insanity, and the momunities under the protection of the general tion for continuance set forth that the witrules which govern society. nesses would testify that the accused was Dartmouth College insane; "that all the powers of the court Wheat. 518, 4 L. ed. 629. have been exhausted to procure the attendThe 14th Amendment did not create any ance of said witnesses;" that they had renew legal rights, but operated upon legal fused to attend; and that the court had no rights as it found them established, and de-authority under the Constitution and laws clared that, such as they were in each state, they should be enjoyed by all persons alike. Ward v. Flood, 48 Cal. 36, 17 Am. Rep.



Woodward, 4

What is due process of law in a state is determined by the law of that state. Walker v. Sauvinet, 92 U. S. 92, 23 L. ed.


Even trial by a jury in a state court is not insured by the 14th Amendment.


The Federal government cannot, under U. S. Const. 14th Amend., interfere with the mode prescribed for the trial of state of fenses.

of the state of Georgia to procure their at-
tendance or their testimony, and that their
depositions would not be admissible in evi-
dence if obtained. The motion further stat-
ed that if he were tried "without being *af-[56]
forded process by which either to compel the
attendance or to procure the depositions of
said witnesses, that defendant, who is a cit-
izen of the United States and a resident of
Georgia, would be deprived of his life, liber-
ty, and property without due process of law,
and would be denied his right and privilege
and immunities as a citizen of the United
States in violation of the Constitution of the
United States, and particularly the 1st par-

2 Story, Const. 5th ed. p. 695; Brannon, agraph of the 14th Amendment thereto; and
14th Amend. pp. 107, 417, 418.
in violation of said Amendment would be de-

from said nonresident witnesses, and will af-
ford him a reasonable opportunity to secure
the same, petitioner will be denied the equal
protection of the laws, and will be deprived
of his life and liberty without due process of
law." The motion for new trial was over-
ruled by the superior court, and defendant
sentenced, whereupon an appeal was taken
to the supreme court which affirmed the
judgment. 113 Ga. 772, 39 S. E. 284.

nied the equal protection of the laws with | dication that they will at any time in the
American citizens of other states of this Un- future be willing to attend upon the sessions
ion where the state and Federal process af of the court. It was argued here that the
fords the defendant means to secure the dep- court should have sent an officer into the
ositions of nonresident witnesses in capital state of Alabama and served each of the
cases, and the state allows the introduction witnesses personally with subpoenas. We
of such depositions in evidence in behalf of do not think the court had any authority to
the defendant in such other states." It was do this, even if there were no impropriety in
further stated that "unless the state will an officer of this state going into the state
consent to the introduction of depositions of Alabama and making personal service of
a paper. The courts of this state are under
no obligations to litigants to send their offi-
cers beyond the limits of the state to do acts
which would be purely voluntary on the part
of such officers; and certainly the court
should not use one of its officers in this way
when the sole purpose in so doing would be
to produce a species of moral coercion upon
a citizen of another state to come into this
state, when he is not required by law to do
so, and would have a right to ignore the com-
mand of the court thus transmitted to him.
The point was made in the court below, and
was argued here, that the failure of the law
of this state to provide a method for compel-
ling the attendance of witnesses from be-
vond the jurisdiction of the state, or for ob-
taining the depositions of such witnesses[562]
and allowing them to be introduced in evi-
dence in behalf of a person charged with
crime, was a denial to such person of the
equal protection of the laws, and his con-
viction under such circumstances would be
depriving him of life or liberty, as the case
may be, without due process of law, in vio-
stitution of the United States. We do not
see how a person on trial could be said to
when he is tried under laws of procedure ap-
be denied the equal protection of the laws
Nor can we see how a person is deprived of
plicable to every person charged with crime.
life or liberty without due process of law,
on account of not having the benefit of the
jurisdiction of the court, when the lawmak-
testimony of witnesses who are beyond the
ing power of the state is powerless to make
any provision which would result in the com-
Pulsory attendance of the witnesses, and the
contrary to the usages, customs, and princi-
use of depositions in such cases is directly
ples of the common law."

This writ of error was then sued out, and the errors assigned were, in substance, that the supreme court erred in not reversing the judgment of the court below for error in denying the motion for continuance, which denial it was contended was a denial of due process of law and the equal protection of the laws secured by the 14th Amendment. This point was made in the Supreme Court and the matter of the ruling on the motion to continue was disposed of thus:

"The application for a continuance was made upon the ground of the absence of certain witnesses whose testimony it is claimed was very material to the defense of insanity set up by the accused. It appeared that these witnesses resided in the state of Alabama, that the court had caused subpoenas to be issued directed to these witnesses, that they had been transmitted by mail to the witnesses, that the subpoenas had been re (561]ceived by *them, and that they had refused to attend court upon the advice of their counsel in Alabama that there was no law requir

lation of the 14th Amendment to the Con

ing them to leave their state to attend as
witnesses a court of another state. It dis-
tinctly appeared that the witnesses had re-
fused to attend, and there is nothing in the
record to indicate that there were any rea-
sonable grounds for hoping that they might
be induced to attend at a subsequent term
The requirements of the 14th Amendment
of the court if the case had been continued. are satisfied if trial is had according to the
Under such circumstances it does not seem settled course of judicial procedure obtain-
to us that the court erred in refusing to ing in the particular state, and the laws
postpone the case. In a case of this charac-operate on all persons alike and do not sub-
ter, where the life of the accused is at stake, ject the individual to the arbitrary exercise
and the court has at its command no compul- of the powers of government. Because it is
sory process which could be used to enforce
the attendance of the witnesses from beyond
its jurisdiction, a promise by the witnesses
to attend at a subsequent term of the court
might address itself very strongly to the dis-
cretion of the trial judge and authorize him
to continue the case; but certainly there is
no abuse of discretion when the witnesses
are beyond the jurisdiction of the court and
beyond the power of its process, and not only
refuse to attend voluntarily, but give no in-

not within the power of the Georgia courts to compel the attendance of witnesses who are beyond the limits of the state, or because the taking or use of depositions of witnesses so situated in criminal cases on behalf of defendants is not provided for, and may not be recognized in Georgia, we cannot interfere with the administration of justice in that state on the ground of a violation of the 14th Amendment in these particulars. Judgment affirmed.

[563]*McKINLEY CREEK MINING COMPANY | try upon that possession by defendants (ap

et al., Appts.,


pellants) with an attempt and avowed purpose to drive plaintiffs (appellees) there

ALASKA UNITED MINING COMPANY from, and unless restrained they would pro

et al.

(See S. C. Reporter's ed. 563-572.)

Appeal in equity-error in instructions finding of fact-notice of mining claim― location by alien.

1. Assignments of error based upon the refusal of instructions in a suit in equity in which the verdict is only advisory to the court cannot be entertained on appeal.

2. A finding by the court on a question of fact

upon which the evidence is conflicting cannot
be rejected on appeal.

Iceed to the execution of said threats.
injunction was prayed for.


The defendants admitted their citizenship, but denied the citizenship of plaintiffs on the ground that the defendants had not sufficient knowledge to form a belief thereto, and traversed in like manner or absolutely the other allegations of the bill, and alleged title by reason of prior discovery by members of the company. The answer also alleged prior possession by members of the by the plaintiff, and claimed that as to the company, from which they were dispossessed controversies thus arising "defendants are under the law and practice of this court entitled to a jury trial for the trial of the title to said claims and each of them, and to that end and purpose have commenced in this honorable court a suit in ejectment for the trial and determination of the title to said property in an action at law and according to the usage and practice of this court, and until the trial and determination of such trial at law by this honorable court the defendants are entitled to a restraining order against said plaintiff company and its individual members restraining them and Janu-cach of them from the commission of the wrongful acts herein complained of."

3. A sufficient location of placer mining claims is made by notices upon a stump in a creek, of a claim running 1,500 feet along the creek bottom and extending 300 feet each way from the center of the creek, adding that it is an extension of another claim named, a certain distance from the first falls on said creek.


The location of a mining claim by an alien, and the rights following therefrom, are void able, not void, and are free from attack by

anyone except the government.

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APPEAL from the District Court of the to review a judgment entered on a verdict for the plaintiffs in an equity case to estab lish title to placer mining claims. Affirmed.

States for the District of Alaska

Statement by Mr. Justice McKenna: This is a bill in equity brought by the appellee company, who was plaintiff below, to establish title to two placer mining claims, against a like claim of appellant company to the same ground.

The bill alleged that "Peter Hall, William A. Chisholm, James Hansen, John Dalton, and Dan. Sutherland, partners under the firm name and style of the Alaska United Mining Company, bring this their bill of complaint against C. G. Lewis, Bert Woodin, Edwin Hackley, Alex. McConaghy, Carl A. West, W. S. Hawes, Chas. P. Leitch, and C. P. Cahoon, partners under the firm name of the McKinley Creek Mining Company, and show to the court that the said parties, both plaintiffs and defendants, are citizens of the United States and residents of the district of Alaska."

The bill also alleged ownership of the claims by reason of location, exploration, and discovery of precious metals, and the compliance with the local rules and regulations of the mining district. Also possession of the claims and the erection of valu[564]able *improvements thereon, and forcible en

NOTE. On location of mining claims-see notes to Last Chance Min. Co. v. Tyler Min. Co. 39 L. ed. U. S. 859, and Enterprise Min. Co. V. Rico-Aspen Consol. Min. Co. 42 L. ed. U. s.


A temporary injunction was prayed against plaintiffs (appellees).

There was a reply filed to the new matter of the answer and to the cross complaint.

A jury was impaneled to try the case on motion of plaintiffs, no objection being made by defendants, and, after hearing the evidence and receiving instructions from the court, the jury rendered a verdict for plaintiffs, as follows: "We, the jury in the above-entitled and numbered cause, find for the plaintiffs, Peter Hall, Wm. A. Chisholm, Dan. Sutherland, James Hansen, and John Dalton, partners under the firm name and style of the Alaska United Mining Company, the claims in controversy."

The defendants in due time moved for judgment notwithstanding the verdict, upon the ground that on the evidence the defend-[565] ants were entitled "to a judgment in their favor for the possession of the mines and property in controversy." The motion was


Subsequently defendants moved for a new trial (1) upon the testimony in the cause, the rulings therein and exceptions taken, and upon the pleadings and proceedings in cause No. 967; (2) the insufficiency of the evidence to justify the verdict; (3) error in refusing to give certain instructions requested by defendants (appellants).

The motion was denied, and the following judgment was entered:

"This cause came on to be heard at this term upon the bill, the answer and cross bill of defendants, and the replication thereto of plaintiffs, and the proofs in the case, and upon the request of defendants, duly made by their counsel, Messrs. Winn & Weldon,

the issues arising upon said pleadings and proofs were submitted to a jury of good and lawful men, duly selected, impaneled, and sworn, to wit, J. Montgomery Davis and eleven others, who, having heard the said proofs adduced in the case, and having been instructed by the court as to the law, and having heard the argument of counsel, retired in charge of the bailiff to consider of their verdict, and after due deliberation had returned into open court the following verdict, to wit:

court and at issue, the record and files of which are hereby referred to and made a part of this objection."

From the judgment entered the case is here on appeal.

Mr. S. M. Stockslager argued the cause, and, with Mr. George C. Heard, filed a brief for appellants:

The locations are utterly invalid because the same are not "distinctly marked on the ground," or otherwise designated as required by law.

"We, the jury in the above entitled and Lindley, Mines, § 371; Gleeson v. Martin numbered cause, find for the plaintiffs, Peter White Min. Co. 13 Nev. 442; Clarke, Mineral Hall, William A. Chisholm, Dan. Suther-Law Digest, p. 78; Newbill v. Thurston, 65 land, Jas. Hansen, and John Dalton, part- Cal. 419, 4 Pac. 409; Pharis v. Muldoon, 75 ners under the firm name and style of the Cal. 284, 17 Pac. 70; Neuebaumer v. WoodAlaska United Mining Company, the claims man, 89 Cal. 310, 26 Pac. 900; Becker v. in controversy. Pugh, 9 Colo. 589, 13 Pac. 906, 17 Colo. 243, 29 Pac. 173.

"(Signed) J. Montgomery Davis, Foreman.

"Which said verdict was by the court received and ordered recorded, and the findings therein contained upon the issues in said cause were by the court approved and adopted.

"Now, therefore, upon consideration of the said bill, the answer thereto and the cross complaint of said defendants, the replication of plaintiffs, and the said proofs, and by reason of the verdict of the jury [566] thereon, approved and adopted by the court, it is, upon consideration thereof, ordered, adjudged, and decreed as follows, to wit: "That the said defendants, C. G. Lewis, Bert Woodin, Edwin Hackley, Alex. McConaghy, Carl A. West, W. S. Hawes, Charles P. Leitch, and C. P. Cahoon, a mining copartnership under the name and style of the McKinley Creek Mining Company, have not, nor have any of them, any right, estate, title, or interest whatever in or to those two certain mining claims, lands, and premises described in the said bill of complaint and in the said answer and cross complaint of defendant and hereinafter more particularly described; that the title of the plaintiff, The Alaska United Mining Company, a corporation composed of Peter Hall, William A. Chisholm, Dan. Sutherland, Jas. Hansen, and John Dalton, thereto, is good and valid, and that the said defendants and each of them be, and they and each of them are hereby, forever enjoined and restrained from asserting any claim whatsoever in or to said mining claims, lands, and premises adverse to said plaintiffs, and that the said plaintiffs be, and they are hereby, quieted in their possession, use, and enjoyment of the same.'


The reasons for the statute and for its strict construction are obvious.

Gonu v. Russell, 3 Mont. 358; Lindley, Mines, § 37; Faxon v. Barnard, 2 McCrary, 44, 4 Fed. 702.

[ocr errors]

Notwithstanding the fact that where the lands are surveyed placer claims are required to be adjusted to the surveys, it is not sufficient marking in such a case to post the claim as of the particular subdivision of the survey.

Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419; White v. Lee, 78 Cal. 593, 21 Pac. 363. The attempted marking on the ground was not a sufficient compliance with the law.

Holland v. Mount Auburn Gold Quartz Min. Co. 53 Cal. 149; Jupiter Min. Co. v. Bodie Consol. Min. Co. 7 Sawy. 96, 11 Fed. 666; Cræsus Min. Mill & Smelting Co. v. Colorado Land & Mineral Co. 19 Fed. 78; Book v. Justice Min. Co. 58 Fed. 107; Gelcich v. Moriarty, 53 Cal. 217; Newbill v. Thurston, 65 Cal. 419, 4 Pac. 409. See also Golden Fleece Gold & Silver Min. Co. v. Cabel Consol. Gold & Silver Min. Co. 12 Nev. 312; Gleeson v. Martin White Min. Co. 13 Nev. 442; Doe v. Waterloo Min. Co. 17 C. C. A. 190, 44 U. S. App. 204, 70 Fed. 455.

Aliens who seek to maintain, under Or. Code, § 500, an action against citizens who have connected themselves with the title of the government for the quieting of their title and the enjoining of the defendants from interfering with them, must show their right to the exclusive possession of the ground in dispute.

Tichenor v. Knapp, 6 Or. 205; Murphy v. Sears, 11 Or. 127, 4 Pac. 471; San Francisco v. Ellis, 54 Cal. 72; Stark v. Starr, 6 Wall. 410, 18 L. ed. 927; Holland v. Challen, 110 U. S. 15, 28 L. ed. 52, 3 Sup. Ct. Rep. 495; A description of the claims followed. Frost. Spitley, 121 U. S. 552, 30 L. ed. Objection was made to the judgment, and 1010, 7 Sup. Ct. Rep. 1129; Smith v. Branthe defendants claimed that the only judg-nan, 13 Cal. 107; Louisville v. Gray, 1 Litt. ment which could be entered was one "re- (Ky.) 147; Bank of United States straining the defendants from the acts com- Schultz, 2 Ohio, 495; Norton v. Beaver, 5 plained of in the bill of complaint pending Ohio, 178. the trial of cause No. 967, McKinley Creek Min. Co. v. Alaska United Min. Co., which is a suit in ejectment now pending in this


A location by an alien is void, but may be validated by naturalization if done prior to the intervention of adverse rights.

Barringer & Adams, Mines & Mining, p.


Citizenship is essential to the validity of a location, and must be affirmatively proved by one who alleges a location.

Ibid.; Bohanon v. Howe, 2 Idaho, 417, 17 Pac. 583.

A qualified locator may relocate a mining claim in the possession of an alien who has not declared his intention to become a citi zen, if relocation be made without force or violence and prior to declaration of intention or conveyance to a citizen. As against an intruder, possession is prima facie evidence of right to possession; but as against one connecting himself with the government title, mere occupancy must yield to the higher right.

Wilson v. Triumph Consol. Min. Co. 19 Utah, 66, 56 Pac. 300. To the same effect is Golden Fleece Gold & Silver Min. Co. v. Cabel Consol. Gold & Silver Min. Co. 12

Nev. 312.

Messrs. 8. M. Stockslager, George C. Heard, and John R. Winn also filed a supplemental brief for appellants.

Mr. L. T. Michener argued the cause, and, with Messrs. W. W. Dudley, J. F. Malony, and J. H. Cobb, filed a brief for appellees:

The location notices and the "markings on the ground" were sufficient.

Haws v. Victoria Copper Min. Co. 160 U. S. 303, 40 L. ed. 436, 16 Sup. Ct. Rep. 282; North Noonday Min. Co. v. Orient Min. Co. 6 Sawy. 299, 1 Fed. 522; Jupiter Min. Co. v. Bodie Consol. Min. Co. 7 Sawy. 96, 11 Fed. 666.

A location made by an alien is voidable only.

Manuel v. Wulff, 152 U. S. 505, 38 L. ed. 532, 14 Sup. Ct. Rep. 651; McEvoy v. Megginson, 29 Land Dec. 164; Crocus Min. Mill & Smelting Co. v. Colorado Land & Mineral Co. 19 Fed. 78; Lone Jack Min. Co. v.Megginson, 27 C. C. A. 63, 48 U. S. App.

452, 82 Fed. 89.

of the other contentions of appellants it is only necessary to indicate the propositions which the evidence of the parties tended to establish. On the part of the plaintiffs (appellees) the evidence tended to show that Dan. Sutherland, James Hanson, William Chisholm, and Jack Dalton, who compose the appellee company, and Peter Hall, and one Hawes, and C. P. Cahoon, were working at Pleasant camp in Alaska for William Chisholm on and prior to October, 1898. Prospecting on the river Porcupine was resolved on to be done by Hanson, Sutherland, and Cahoon, and the following power of attorney was given to Cahoon:

Know all men by these presents that Pe ter Hall, William Chisholm, William S. Hawes, of Pleasant camp, British Columbia, have made, constituted, and appointed, and by these presents do make, constitute, and appoint, C. P. Cahoon, of Pleasant camp, British Columbia, our true and lawful attorney, for us and in our names, place, and stead, to locate a mining claim in the territory of Alaska.

In testimony whereof we have hereunto set our hands and seal this 4th day of Oct., A. D. 1898.

Peter Hall.

Wm. A. Chisholm.

Wm. S. Hawes.




Signed, sealed, and delivered in the pres

ence of

Dan. Sutherland.
J. Hanson.

*Provisions were furnished the party, and [568] they started out on the 4th of October, 1898, and met on the creek (subsequently given the name of McKinley) certain members of the appellant company. Gold was discovered, and Cahoon wrote notices of location for Chisholm and Hall upon a snag or stump in the creek, making their claims contiguous, and afterward reported that he had done so, saying that he had staked Chisholm first and Hall next. Chisholm and Hall

[566] *Mr. Justice McKenna delivered the went to the claims about the 20th of Octoopinion of the court:

The assignments of error present for re[567] view the rulings of the *court upon the admission of testimony, the correctness of the court's instructions to the jury, and the sufficiency of the evidence to justify the judgment.

ber, and cut trails to them, and did other work upon them; and at that time copied the notices of location and had them recorded. The notices, with their indorsements, were introduced in evidence.

The testimony was given by several witnesses and in great detail, and it was opWe may dispose of the rulings on the ad- posed at about all points by testimony of mission of testimony summarily. They are several witnesses, including Cahoon; and as not precisely indicated by counsel in their to who first discovered gold there was a debrief, and to review them with a detail of cided conflict whether Sutherland did, who the evidence would unduly extend this is one of the appellee company, or whether opinion. It is enough to say that we have Hackley did, under a location by whom the examined the evidence and considered the appellant company claims. Also a conflict rulings, and do not discover any prejudicial as to whether Hackley protested when Caerror in the latter. Besides, it is question-hoon wrote the notices of location for Chisable if such rulings are reviewable in an appellate court. Wilson v. Riddle, 123 U. S. 608, 31 L. ed. 280, 8 Sup. Ct. Rep. 255; Huse v. Washburn, 59 Wis. 414, 18 N. W. 341; Peabody v. Kendall, 145 Ill. 519, 32

N. E. 674.

For an understanding and consideration

holm and Hall, and whether Cahoon promised to take them down and authorized Hackley to do so, and, upon his declining, authorized Lewis, one of the appellant company, to take them down and relocate Chisholm and Hall further up the creek, and whether Lewis did so.

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