ART. 17. One hundred feet along the base, and running from base to base through the mountain, shall constitute a tunnelling claim to this mining district, and no miner shall hold more than one tunnelling claim, in addition to the other claims already provided for by the mining laws of this district. ART. 18. And each tunnelling company may work its claim by employing such number of persons to work upon the same as it may deem expedient. ART. 19. And no such claim shall be considered forfeited until thirty days after its abandonment. E. DAY, Secretary. JUBAL HARRINGTON, President. Chattel Mortgage by a Water-right Company Whereas, the following-named persons and firms are interested in, and claim to be the owners of a water-ditch or canal, and appurtenances, known as the ditch or canal of the Middle Yuba Canal and Water Company, in the proportions or number of shares set opposite the name of each, and who reside at the places, and follow the profession, trade or occupation set opposite the name of each, the whole ownership thereof being divided into one thousand shares, viz.: And whereas such ditch or canal was built and constructed under and in pursuance of an agreement, or articles of association, called constitution and by-laws, a copy whereof is hereto annexed, marked A., and is owned and possessed in pursuance thereof. And whereas, such ditch or canal is situate and located in the county of Nevada, and state of California, and is particu larly designated and delineated on a map or plate hereto annexed, marked B. And whereas, there has been heretofore borrowed of M. Johnson & Co. (to wit: Martin Johnson, now deceased, and Henry Pearce, of the city of San Francisco) the sum of forty thousand dollars, which sum has been expended in constructing and keeping in repair said canal or ditch. And whereas, there is now due to said Henry Pearce, surviving partner of M. Johnson & Co., on account of said loan, the sum of nine thousand eight hundred and twenty dollars and thirty-nine cents. And whereas, for the purpose of completing the construction of such canal or ditch, and of paying certain floating and outstanding debts, owing by the Middle Yuba Canal and Water Company, and incurred in constructing and carrying on such canal or ditch, it has become and is necessary to raise, by loan, the further sum of twenty thousand dollars. And whereas, at a meeting of the shareholders of said company and owners of said canal or ditch, on the 7th day of February, 1858, pursuant to said constitution and by-laws, or articles of association, it was voted and resolved that the Middle Yuba Canal and Water Company will raise, by loan, to be secured by mortgage upon the ditch or canal and waterworks of said company, the sum of twenty thousand dollars, to bear a rate of interest not exceeding three per cent. per month, payable quarterly, and if not paid when due, to be compounded with, and added to the principal, and thereafter to form a new principal, and bear the same rate of interest until paid. And whereas, at said meeting it was also voted and resolved, that if the said Henry Pearce, surviving partner aforesaid, will and has consented to postpone the payment of said sum or loan due to him as aforesaid, that the Middle Yuba Canal and Water Company would secure the payment thereof by mortgage upon said ditch, canal, or waterworks, to bear a rate of interest of three per cent. per month, payable quarterly, and if not paid when due, to be compounded with and added to the principal, and thereafter to form a new principal, and bear the same rate of interest until paid. And whereas, at said meeting it was also voted and resolved, that the president and trustees of the Middle Yuba Canal and Water Company be authorized, empowered and instructed to negotiate for and procure such loan, and such postponement, and for and on behalf of the said company, to execute and deliver a mortgage or mortgages upon the ditch or canal and waterworks of said company, with the appurtenances, to secure the payment of said loans and sums of money and interest as above specified. Now therefore, this indenture, made the day of February, (1858) eighteen hundred and fifty-eight, by and between the Middle Yuba Canal & Water Co., of Nevada, Nevada county, California, a company for mining, chemical, or agricultural purposes, and furnishing and selling water for such purposes, and each of the firms and persons subscribing this indenture, whose residences, trades, professions and occupations are hereinbefore set forth, shareholders in and part owners of said ditch or canal and waterworks, parties of the first part, and Henry Pearce, party of the second part, witnesseth, that the said parties of the first part, as a company and individually, for and in consideration of the premises, and in consideration of the sum of lent and advanced by the party of the second part to the parties of the first, the receipt whereof is hereby confessed and acknowledged, and in further consideration of the postponement by said Pearce of the payment of said sum so due and owing to him, hath sold, granted, conveyed and mortgaged, and by these presents doth sell, grant, convey and mortgage unto the said party of the second part, all the right, title, interest, claim and property of the said parties of the first part, as a company, members of firms and individually, of, in and to the ditch, or canal and waterworks, reservoirs and rights of water, including dams, sluices, gates, trunks and branches belonging and pertaining to the Middle Yuba Canal and Water Co., as the same is more particularly designated and delineated on the map or plot marked B., hereto annexed, and forming part of this instrument. This grant and instrument is intended as security for the payment of the said sum of twenty thousand dollars in one year from date, with interest at three per cent. per month, payable monthly, and if not paid when due, to be added to the principal, and compounded, and bear the same rate of interest; which payments of principal and interest, at the times and in the manner above mentioned, at the banking house of Banks & Bull, in the city and county of San Francisco, will render this conveyance and instrument void: but in case default be made in the payment of the principal or interest above mentioned, or any part, at the time, place, and in the manner above mentioned, then the said party of the second part is hereby authorized and empowered to sell the property herein before mentioned, to wit: said ditch, or canal and waterworks, with the appurtenances and every part and parcel thereof, in the manner provided by law, and under and in pursuance of a decree of a court of competent jurisdiction, and out of the moneys arising from such sale, to retain two and one-half per cent. upon the amount then due and unpaid and to grow due, for attorney and counsel fees of foreclosure, together with the legal costs and charges of making such sale, the said principal sum and interest thereon then unpaid and owing; and the overplus, if any there be, shall be paid to the Middle Yuba Canal & Water Company. And the said Middle Yuba Canal and Water Company covenant, promise and agree, to and with the party of the second part, pay to him the said principal sum and interest, as above specified, at the time, place, and in the manner above mentioned. to And the undersigned firms and individuals covenant, promise and agree, to and with the party of the second part, to pay to him the said principal sum and interest as above specified, at the time, place, and in the manner above mentioned. In witness whereof, &c. For mode of executing this instrument, see statutory provisions and forms under the title CHATTEL MORTGAGE. CHAPTER XXX. MORTGAGE. No particular form of words is necessary to constitute a mortgage; and where two instruments taken together, described the property, and the amount of indebtedness, and conveyed the premises as security for the indebtedness, they were held to constitute a sufficient mortgage.' It is not necessary, to constitute a mortgage, that it should appear upon the face of the papers, that there was any personal obligation on the part of the mortgagor to pay the amount of the principal and interest. Such obligation would only enable the mortgagee to look to the mortgagor for any deficiency remaining after the application of the proceeds of sale of the premises to the payment of the sum secured.' A claim against the estate of a deceased person, although secured by mortgage, must be presented to the executor or administrator, with the necessary affidavit, or suit cannot be maintained for its recovery.' See title EXECUTORS AND ADMINISTRATORS.* A mortgage given upon a homestead, will not avail as a lien, to the extent of the homestead exemption-five thousand dollars -unless the wife join in the execution of the instrument.* See titles HOMESTEAD and ACKNOWLEDGMENTS. She should also join with her husband in a mortgage of her separate estate-see title HUSBAND AND WIFE. A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property, without a foreclosure and sale'. The court may, by injunction, on good cause shown, restrain 11 Cal. 803. 2 10 id. 197. 36 id. 386; 9 id. 123. 45 id. 504; 8 id. 66; 10 id. 296. |