'Conveyance not under seal-Evidence. A mining claim may be conveyed by bill of sale or instrument in writing not under seal, as provided by statute in California, and such instrument is admissible in evidence. Bill of sale as evidence. It was objected to the introduction of a bill of sale in evidence, that it purported to be executed by Jones, one of the three grantors, by his attorney in fact, who, it was shown, had at the time a written power, which was not produced at the trial: Held, that the objection pertained, not to the admissibility of the bill of sale, but to its effect when admitted; and that it was proper evidence to show a conveyance by the other grantors. District records as evidence of title. A book for the record and transfer of mining claims, shown to be authorized by the rules of the district, was offered in evidence, and admitted without objection, and showed several transfers by which a title to the premises in controversy was vested in plaintiffs: Held, that the book was at least secondary eviden e, which, being admitted without objection, made out the plaintiff's case, and put the defendants to the proof of a forfeiture or abandonment by plaintiffs.

2 Forfeiture distinguished from abandonment. The term forfeiture means the loss of a right to mine a particular piece of ground previously acquired, by neglect or failure to comply with the rules and regulations of the bar or diggings in which the ground is situate. As a defense, it is entirely distinct from that of abandonment. It involves no question of intent, which is the principal question in the defense of abandonment, but involves only the question-has the party observed the mining rules and regulations?

Appeal from the District Court, Eleventh Judicial District, El Dorado County.

In the course of the trial, plaintiffs offered in evidence the following bill of sale:

"This is to certify, that we have this day sold to Wm. St. John, the undivided one half of four claims situated on Wild Goose Flat, and known as the St. John Claims, of two hundred feet square, for the sum of two hundred and fifty dollars, the receipt of which is hereby confessed; together with the tools and sluices.

"S. J. SWEET, EARL J. BARNEY,

"D. E. JONES (by power of attorney).

"WILD GOOSE FLAT, February 7, 1857."

Sweet, the witness, proved his own signature and that of Barney; but as to the signature of Jones, stated that at the time of the sale Jones was in the East, but Barney was his

1 See 3 M. R. 415, Note 14.

2 Mallett v. Uncle Sam Co., 1 M. R. 17; McGarrity v. Byington, 2 M. R. 311.

agent, with written power to sell, and that Barney signed Jones' name to the bill of sale, and that witness did not know where the power of attorney was.

Defendants' attorney objected to its introduction as evidence because not under seal, and further objected to it so far as it affected the interest of Jones.

The court overruled the objection.

The other facts are stated in the opinion of the court.

P. L. EDWARDS, for appellants.

TUTTLE & HILLYER, for respondents.

By the Court, SANDERSON, C. J.

The respondents make certain technical objections to the record in this case, which come too late. The case was decided upon its merits by the late Supreme Court, and thereafter upon petition that court granted a rehearing; but after the rehearing was had the record became lost and no final decision was made. At the April term of this court the appellants, with the consent of the respondents, were allowed to file the present transcript to supply the place of the former. In view of the history of the case it can hardly be presumed that the defects insisted upon, if they existed in the old record, were not in some way disposed of before the merits were reached, either by an adverse decision of the court or an express or implied waiver on the part of the respondents. Moreover, if the case was now before the court for the first time, these objections come too late. The case was submitted upon its merits on briefs by consent of parties, without any exception being taken to the transcript, and it makes no difference that such submission was made prior to the day on which the case was set for argument. Technical objections to the transcript, not taken before the final submission of the case upon its merits, regardless of the time when submitted, must be considered as waived.

The action was brought to recover the possession of a mining claim. The plaintiffs aver title, possession and ouster in the usual form. The defendants specifically deny all the material averments in the complaint, and affirmatively aver a forfeiture and abandonment by the plaintiff under the

mining laws of the district embracing the claim, and that thereafter, finding the premises vacant and unappropriated, they lawfully entered and occupied the same. The trial resulted in a verdict and judgment for the plaintiffs. The exceptions are to the admission of evidence, and to the giving and refusing of instructions.

It is insisted by counsel for respondents that the exceptions to the instructions must be disregarded, because the same were not taken at the proper time. The record shows that the exceptions were taken after the jury had withdrawn to consider of their verdict and before the verdict was rendered. In support of this proposition The Life and Fire Insurance Company v. The Mechanic Fire Insurance Company, of New York (7 Wend. 31), decided at the May term, 1831, is cited. In that case, as in the present, an exception was taken to the charge of the court after the jury had withdrawn and before they had returned with their verdict. The court refused to allow the exception upon the ground that it came too late and should have been taken, if at all, before the jury had withdrawn. On appeal this action of the court below was sustained by the Supreme Court. Yet the same court, but a little more than a year afterward, at the October term, 1832, in Wakeman v. Lyon (9 Wend. 241), where the bill of exceptions expressly stated that the exception to the decision of the judge was taken after the verdict was delivered, said: "We will presume that the exception was taken in due time unless it is expressly shown that it was not taken until after the verdict. We do not regard the manner in which the proceedings on the trial are stated in the bill, and so we have repeatedly ruled." In Jones v. Thurmond's Heirs (5 Tex. 318), it was held that if there is anything in the charge of the court to which either party desires to except it is in time to indicate the exceptions as soon as the jury shall have retired, and the exceptions so indicated may be reduced to writing and signed by the judge during the term. In Jones v. Van Patten (3 Ind. 107), and Roberts v. Higgins (5 Ind. 542), it was held that exceptions to the instructions of the court must be taken before the jury render their verdict, or they will be disregarded by the appellate court. The same doctrine was

announced in Letter v. Putney (7 Cal. 423). While the last three cases do not directly decide the point under consideration, yet they obviously imply that an exception to the instructions of the court is well taken, if taken at any time before the verdict is rendered.

The one hundred and eighty-eighth section of the Practice Act thus defines an exception: "An exception is an objection taken at the trial to a decision upon a matter of law, whether such trial be by jury, court or referees, and whether the decision be made during the formation of a jury, or in the admission of evidence, or in the charge to a jury, or at any other time from 'the calling of the action for trial to the rendering of the verdict or decision."

This section does not in terms fix the precise time at which an exception must be taken, but it implies, we think, that the exception should be taken at the time the ruling is made, that is to say, before any further steps are taken or progress made in the trial, and in time to enable the opposite party or the court, as the case may be, to remedy the objection, if it be deemed a substantial one. The question is, doubtless, one which rests very much in the discretion of the court below, and which the district courts might regulate by a rule, as provided in the twenty-eighth section of the Judiciary Act. In the present case the court below allowed the exceptions, and we think it was not error to do so, and, had the court refused to do so, we should have been of the same opinion.

It appears from the evidence that the plaintiffs, with the exception of William O. St. John, did not seek to recover upon the ground of a location by themselves, but by virtue. of a location made by others and a purchase from them. The ground seems to have been located in 1854 by Randall, Sherman, Rogers and Martin. Randall sold to Jones & Co., in December, 1854. Sweet, Barney and Jones constituted the firm of Jones & Co. What became of Sherman's, Rogers' and Martin's interest does not appear. One of the witnesses heard one Perry making a bargain with either Sherman or Rogers for his interest, but when and with what result does not appear. The ground appears to have been relocated in March, 1855, by Sherman, Perry, Jones and Will

iam O. St. John, one of the plaintiffs in this suit. This location was entered in a book kept by the recorder of the district under the mining rules in force therein. By an entry in the same book it appears that Perry's and Jones' interests were transferred to William St. John, another of the plaintiffs in this action, on the 7th of February, 1857. By another entry in the same book it appears that Sherman's interest was transferred to William H. Dow, the other plaintiff in this action, on the 13th of January, 1860.

The exceptions taken to the admission of evidence all relate to the testimony which was offered for the purpose of proving title under the first location, and the sales thereafter made by the then locators, except the one taken to the bill of sale from Jones & Co. to William St. John, made on the 7th of February, 1857. As we understand the evidence, which we confess, as presented in the record, is somewhat obscure, this latter bill of sale is of the interest which. Jones & Co. acquired under the second location, and not of that purchased by them of Randall, which he held under and by virtue of the first location. Aside from this last exception, we deem discussion unnecessary, for the reason that under the view which we take of this case the rulings of the court below upon the evidence relating to the title derived under the first location, whether erroneous or not, become immaterial, for the reason that they could not have possibly affected the verdict. So far as the plaintiffs attempted to derive title from the first location and the transfers under it, they, in our judgment, utterly failed. But under the second location, as we shall presently see, they made a clear title under the mining rules and regulations by evidence, which was not objected to by the defendants. This latter evidence. is amply sufficient to sustain the verdict, so far as the question under consideration is concerned. And it is clear that the jury based their verdict upon this latter title, so to speak, and were not misled by the evidence or rulings of the court touching the former.

The exception to the bill of sale from Jones & Co. to William St. John was not well taken. The grounds of the exception were, first, that the bill of sale was not under seal; and second, that it purported to be executed by Jones, one