Our sented to the administrator or executor for allowance; the expenses of administration are subject to objection and exception by those interested in the estate, and are finally passed upon by the probate judge when the administrator or executor renders his accounts. statute provides that every executor or administrator, immediately after his appointment, shall give notice to the creditors of the deceased, requiring them to present their claims, and that every claim presented for allowance must be supported by the oath of the claimant. Sections 147-151. If the claim is rejected, the holder thereof must bring suit thereon within three months, in the proper court, against the executor or administrator, otherwise the claim is barred. Section 155. Section 157 provides as follows: "No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator." similar statutes it has been held a condition precedent to the right to maintain an action on a claim against an estate, that the same be first presented to the administrator for allowance or rejection. In Eustace v. Jahns, 38 Cal. 23, the court says: Under "We are clearly of opinion that, under statutes of this state, no action can be maintained upon a simple money demand or claim against an estate, whether such demand or claim be based upon simple or special contract, or any other legitimate basis for a claim or demand payable out of the general assets, until the same has been duly presented to the administrator for allowance, and by him disallowed, or retained for more than ten days without indorsement of his action thereon." The claim of the appellant for services as salesman in taking charge of the stock of hardware and goods mentioned, was never presented to the executor for allowance or rejection, and for that reason he could not have commenced and maintained an action thereon, or upheld the same as a counter-claim to the respondent's action. For another reason the matter alleged as a counter-claim must fail. It does not constitute a claim against the estate within the meaning of the sections of the statute above referred to. It did not exist as a claim at the date of the death of the deceased, nor did it grow out of any contract or act or omission of his during his life-time. If the executor had the right to employ a clerk and salesman to take charge of said stock of goods, the pay and compensation for such service belongs to the expenses of administration; and the amount paid therefor properly goes into the accounts of the executor, to be passed upon by the probate judge. In so passing upon said account, the probate judge would inquire into the authority of the executor in contracting for such service, and whether, under the circumstances, the same was rendered in the interest of the estate. The case of Gurnee v. Maloney, 38 Cal. 85, was an action to recover counsel fees and moneys against an estate, for services and moneys expended for the benefit of the estate, at the request of the administrator. The defendant demurred to the complaint on the ground that the district court had no jurisdiction, and that the complaint did not state facts sufficient to constitute a cause of action against the defendant. In deciding the case, SAWYER, C. J., says: "Conceding the liability of the estate upon such contracts as are set forth in the complaint, we do not think they constitute claims against, the estate within the meaning of sections 128 to 140, inclusive, of the probate act. The claims therein referred to are such as accrued against the intestate in his lifetime, or resulted directly from contracts made, or acts performed, or wrongfully omitted to be performed, during his life-time. The charge now in question, if necessary and proper to preserve the estate, comes under the head of expenses of administration. The whole estate is in the custody and under the control of the probate court. It has jurisdiction of the whole subject-matter, and it is its exclusive province, subject to appeal to this court, to determine what items of expenditure incurred during the administration under its own supervision are proper charges against the estate." The judge then quotes with approval the following from the case of Deck's Estate v. Gherke, 6 Cal. 669, where, after speaking of the effect of the allowance of claims against the estate, it is said: "The rule applies only to such claims as were debts against the deceased, and not to the expenses incurred or disbursements made by the administrator in his management of the estate, which latter claims are conclusive only after having been allowed by the probate court upon settlement of the account, after notice to the parties interested.” The heirs and creditors, all the persons interested in the estate, had the right to be heard upon the propriety of the claim of appellant for the services as clerk and salesman. The place for such hearing is in the probate court after the executor has rendered his account of expenses and disbursements, and upon notice thereof to the parties interested. Such parties could not be heard in this action. If the district court could render judgments on such claims they might never be heard at all, and the probate court, whose peculiar province it is to hear and determine all matters concerning the expenses and disbursements attending the administration of an estate, and wherein the heirs, legatees, and creditors may be heard as to the propriety of such expenses and disbursements, might be robbed of the jurisdiction. conferred by the statute. The district court has not original jurisdiction to hear and determine whether the items of the expenses of administration such as that mentioned in the counter-claim of appellant were properly incurred or not. Such matters belong to the probate court, in which the parties interested may be heard, before their rights and interests are adjudicated and determined. Judgment affirmed. (5 Mont. 523) SAUNDERS and others v. MACKEY. Filed January 29, 1885. LOCATION OF MINING CLAIM-REPRESENTATIVE WORK-RELOCATION. The location of a mining claim, with a promise to represent, does not save it from forfeiture, or protect it from relocation, after the time for representation has expired. Appeal from Third district, Jefferson county. Sanders & Cullen, for appellants. E. W. & J. K. Toole, for respondent. WADE, C. J. This is an action to quiet the title to a mining claim and for other relief, in which there was a demurrer to the complaint sustained, and a judgment for defendant, from which plaintiffs appeal. The complaint substantially alleges that, in the year 1882, Julia D. Saunders, who is the wife of her co-plaintiff, Cole Saunders, and one E. G. Marshall and this defendant, respondent herein, were the owners of and tenants in common in the Belle of the Boulder and Eclipse quartz lode mining claims, situate in the Boulder mining district, Jefferson county, and entitled to the possession thereof,-the said Julia D. Saunders owning the undivided one-half of each of said claims, and the defendant and said Marshall owning the other undivided one-half thereof; that being so tenants in common it was agreed by and between the said Julia D. Saunders and the respondent that the respondent should do the representative work necessary under the laws of the United States to be done in and upon said mining claims to represent the same for the year 1882, in consideration whereof the said Julia D. Saunders promised to pay the respondent the sum of $100 therefor, that being the portion of such representative work necessary to preserve plaintiff's interest in and to said mining claims from being subject to relocation; that the appellants, relying on the promise of the respondent to do, or cause to be done, such representative work, neglected to do and perform said work or cause the same to be done before the thirty-first day of December, 1882; that the respondent, designing to cheat and defraud the said Julia D. Saunders of her interest in said mining claims, after the time for representing the same had passed, relocated a portion of said claims as the Baltimore lode mining claim, and ousted the appellants of their possession of the premises; that appellants desire to represent said claims for the year 1883, but that respondent will not permit them so to do, and by force and threats prevents them from performing any work on said claims; that respondent is insolvent and unable to respond in damages; and that appellants have no speedy or adequate remedy at law. Wherefore, they ask that the Baltimore location be set aside so far as the same embraces any portion of the Belle of the Boulder and Eclipse locations; that appellants be let into the possession of said claims; and that respondent be enjoined from preventing appellants' representing the same. It appears from these allegations that the Belle of the Boulder and Eclipse claims were not represented for the year 1882, and the reason assigned for not representing them is the promise and agreement of respondent that he would do the work for that purpose, which he failed to perform. This question is presented: Does a location, with a promise to represent, save a mining claim from forfeiture, or protect it from relocation, after the time for representation has expired? The act of congress of May 10, 1872, (Rev. St. U. S. § 2324,) under which the claims in question were located, provides as follows: "On each claim located after the tenth day of May, 1872, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year. * * * And upon a failure to comply with these conditions, the claim or mine upon which such failure occurred, shall be open to relocation in the same manner as if no location of the same had ever been made." Title to the public mineral land is acquired and held by discovery, location, and representation in the manner provided by law. Representation from year to year keeps alive the grant. If representation fails, the grant fails, and the ground is open to relocation and purchase. The terms of the law are absolute. There are no exceptions. If the representative work for the year is not performed, the ground located becomes again a part of the public domain. An agreement to represent is not a represention. After the period of representation has expired, an agreement to represent, not performed, cannot save a claim from forfeiture and relocation. Such an agree ment would not have the effect to keep alive the grant. It would not revive a right already lost. It would not tide over the period of representation from year to year, and prevent a relocation of the ground. It is not material for what reason there has been a failure to perform such an agreement. The conclusive fact is that the ground has not been represented. Congress alone has authority to dispose of the public lands. If an agreement between individuals could prevent a relocation of the public mineral lands, then the primary disposal of the soil may be taken from congress, and confided to the contracts of private parties. The fact that these parties were tenants in common does not affect the question of representation. Mining claims so owned must be represented as if owned by one person. Representation is a unity. The co-owners may cause representative work to be done on the claim according to their respective interests; but, when completed, it must amount to one whole representation. Otherwise, the claim is not protected from relocation. Any co-owner or co-tenant may represent the claim and compel those interested with him to bear their proportion of the expenses; but the claim must be represented, and the agreement of a co-tenant to bear his proportionate share of the expenses is not a representation, and does not relieve him from the consequences of a failure to represent. The complaint alleges that the respondent promised to represent said mining claims, and that the appellant Julia D. Saunders, in consideration thereof, agreed to pay him $100 therefor, that being the portion of such representative work necessary to preserve her interest in the claims. But the necessary work for that purpose was a full and complete representation of the claims. There was no consideration for the promise of respondent to represent his own interest or that of Marshall. He was, therefore, under no legal obligation to represent the claims for himself or Marshall. And, if an agreement to represent could in any case protect a claim from relocation, the agreement in question is wholly insufficient, for it only provided for one-half of the work necessary to represent the claims. If the respondent had performed the $100 worth of representative work for Julia D. Saunders, it would have been of no avail in protecting the claims, unless the interest of respondent and Marshall had been represented, and this was not provided for. The Belle of the Boulder and Eclipse claims not having been represented during the year 1882, they became thereby a part of the public mineral lands, and subject to relocation on the first day of January, 1883. If the respondent has violated his contract he is liable to damages for a breach thereof, and if the relations between him and Julia D. Saunders were such as to make him her trustee in the location of the Baltimore claim, a proper action would so declare him and protect her interest therein; but there is nothing in the complaint to invalidate the Baltimore location and claim. Judgment affirmed. 1. CHALLENGe of Jurors-AUTHORITY OF COURT TO FILL THE PANEL. Where, in the preliminary examination of jurors as to their qualifications, it is found that some of them are not residents of the county in which the action is tried, the court is clothed with authority, under Laws Twelfth Sess. 58, to provide a competent jury. 2. SAME-AMENDED COMPLAINT-WAIVING JURY-TRIAL BY THE COURT. Where, after a jury has been formed, and pending the trial, the plaintiff asks and obtains leave to amend his complaint, and thereupon a jury is waived, and the cause is tried by the court, by consent, this action of the parties cures the defect in the formation of the jury, if there had been any, and renders the objection frivolous. 3 SAME-APPEAL-DAMAGES-RULE 23. Where the court is satisfied from the record that a demurrer is interposed, and that an appeal is taken for the purpose of delay, it has power under its rules to award such damages against a party as may under the circumstances be proper, and as shall tend to prevent the taking of appeals for such delay. Appeal from Second district, Deer Lodge county. Thomas L. Napton, for appellant. J. C. Robinson, for respondent. WADE, C. J. When this action was called for trial, it was found, |