This untaxable property should be excluded from the assessment, and the assessment, after such deduction and exclusion, made the basis of the apportionment.

We are therefore of the opinion that two causes of action are not improperly joined in this complaint; that the cost of the buildings is properly shown by the books of the county commissioners; that the assessment for 1882, after excluding the untaxable property of the railroad company, is properly made the basis of the apportionment; that the apportionment of the indebtedness by the county commis sioners of both counties is not necessary to enable the ap pellant to institute this suit; and that these commissioners, under the provisions of section 3 of the act, did not constitute a tribunal which excluded the jurisdiction of the district court.

The judgment is reversed, and cause remanded for a new trial.

WADE, C. J., concurred.

Judgment reversed.

GARFIELD M. & M. Co., respondent, v. HAMMER ET AL, appellants.

MINING CLAIM― Location - Right of possession.- The right to the possession of a mining claim is derived only from a valid location; consequently if there be no location there can be no possession under it. A location is not made by taking possession alone, but by marking on the ground, recording and doing whatever else is required for that purpose by the acts of congress and the local laws and regulations.

SAME-Plaintiff must prove valid location - Forfeiture.-In an action to quiet title to a mining claim, where the plaintiff's ownership and right to the possession are put in issue by the answer, it devolves upon him to show affirmatively upon the trial that he had complied fully with all the requirements of the act of congress, and the local rules and regulations relative to the location of mining claims, and had made a valid location. An instruction, however, to the contrary, is not a prejudicial error, if the defendant did not introduce any evidence

tending to invalidate the plaintiff's location, and relied simply upon an alleged forfeiture.

SAME

Locators presumed to be citizens.- In the absence of evidence to the contrary, the locators of a mining claim will be presumed to be citizens of the United States, or to have declared their intention to become such.

SAME - Description of claim in notice.- A notice of location of a mining claim which describes it by metes and bounds, and as being a certain number of feet south from a well-known quartz location, sufficiently complies with the requirements of the act of congress as to the description.

NEW TRIAL - Cumulative evidence.- A new trial will not be granted on the ground of newly-discovered evidence, if the same be merely cumulative.

CERTIFIED COPIES OF RECORDED DOCUMENTS ADMISSIBLE IN EVIDENCE. Under the statutes of Montana, certified copies of the certificate of incorporation of a corporation, of the declaratory statement under oath of the locators of a mining claim, and of deeds, are admissible in evidence, without first accounting for the original.

EVIDENCE - Expert testimony — Opinion as to work on mine. — A witness, not shown to be a mining expert, can only testify as to facts, and it is the province of the jury to weigh such evidence.

FOREIGN CORPORATIONS ARE NOT PROHIBITED FROM DOING BUSINESS in Montana.

Appeal from a Judgment of Third District, Lewis and Clarke County.

THE opinion states the facts.

E. W. & J. K. TOOLE, for the appellants.

1. Foreign corporations have no legal existence in any state or territory other than that of their creation. Bank of Augusta v. Earle, 13 Pet. (U. S.) 538.

2. Legislatures of other states or territories may exclude them altogether from doing business within their limits, or impose such conditions or qualifications as they may see proper before permitting them to exercise any rights therein. 18 How. 407; 10 Wall. 400-410; 8 Wall. 168; Cooley on Stat. Lim. p. 285.

3. It is for the courts to say whether from the whole statute the legislature intended to impose these conditions or

qualifications upon such corporation as a condition preceLester v. Howard Bank, 33 Md. 558; 3 Saw. 218,

dent. 219.

4. On general principles of interpretation, such construction will be given as will enable all provisions of the statute to stand. Effect in this case should be given to both sections 46 and 47. Panghburn v. Westlake, 36 Iowa,

546.

5. When prohibitions are prescribed and a penalty attached, it must appear that the law only intended a penalty before the court will refuse to give effect to the prohibitory clause. 33 Md. 558; 55 Ill. 85; 4 Col. 369; 8 Wall. 168, 180; 10 Nev. 47, 386; 13 Pet. (U. S.) 538; 1 Blatchf. 628; 4 id. 120; 5 id. 387; 6 Or. 431.

6. The only penalty in the law is a prohibition from doing or carrying on any business in the territory without filing the paper required. This penalty amounts to prohibition. Plaintiff could neither acquire property nor sue to protect it, as both are necessary to transact business. 6 Vt. 219; 12 Met. 24; 4 Cush. 322; 13 Met. 284; 1 Black (U. S.), 286.

The court, in cases where its judgments ipso facto entitle the party in whose favor it is rendered to a patent, will hold him to the identical proof required in the laws. This would include affirmative proof of citizenship, and boundaries by permanent monuments.

The court below erred in admitting copies of certain deeds and other papers without accounting for the absence of originals.

SANDERS, CULLEN & SANDERS, for the respondents.

1. A corporation can maintain or defend a suit outside the jurisdiction which created it only by comity, but in absence of any inhibition it may maintain an action the same as a natural person. 4 Abb. N. C. 378; 12 N. Y. 569; 4 Ill. 236; 17 Mass. 97; 5 Wend. 483; Wood's Field on Corp. sec. 329.

2. There is no dispute as to the locus in quo. In case of

corporations formed under the laws of any state, that fact establishes citizenship. U. S. R. S. sec. 2321.

3. A deed may be proved by the original, the record or a certified copy. Abb. Trial Ev. p. 693, and cases cited; 8 Pet. 30; 17 Wend. 338; 20 Wend. 427; Wharton on Ev. p. 111; R. S. of Mont. sec. 394, p. 490.

4. The pretended newly-discovered testimony was only cumulative. 1 Mont. 111.

5. Not only must error be shown but that the party suffered thereby. 2 Mont. 567.

6. This is a special action brought under section 2326, United States Revised Statutes, to determine the question to the right of possession.

If plaintiff had done the necessary amount of work on the claim in 1882 as found by the jury, the location of defendants was void.

GALBRAITH, J. This is an appeal from an order overruling a motion for a new trial. The action was to quiet title. A trial by a jury was had between the respondent and the appellant Hammer. The pleadings, so far as they were concerned, were in substance as follows: The complaint alleged that the respondent "is a body politic and corporate," organized under the laws of the state of New York, for the purpose of mining and milling ores containing the precious metals in Montana territory, and that it has complied with the laws of that territory in relation to foreign corporations. That it is the owner of a certain quartz lode mining claim, situate in "Vaughn (unorganized) Mining District" in the county of Lewis and Clarke, territory of Montana, called the Garfield lode or mining claim. That the respondent is now in the possession of the above claim, and that plaintiff and its predecessors in interest have been ever since the discovery and location of said claim, in possession of the same and entitled to be so in possession thereof.

That the appellant Hammer, on or about the 1st day of

ever.

January, 1883, assumed to enter upon said premises, and to relocate the same, and had the relocation recorded in the county of Lewis and Clarke as the Kinna lode, and thereby now claims an interest therein and the possession thereof adversely to the respondent, and has made application for a patent to the premises under the name of the Kinna lode. That the claim of the appellant is without any right whatThat the respondent has filed its adverse claim in the land office, whereby proceedings will be stayed till the final determination of the right to the premises. The answer denies that the respondent ever was, or is, a body politic and corporate, or that it has duly complied with the laws of Montana territory relative to foreign corporations. Denies that the respondent is the owner of the premises, or that it is now, or ever was, in the possession thereof, or that it, or its predecessors in interest, have been ever since the discovery or location thereof, in possession of the same; or are, or were, entitled to such possession; or that he assumed to relocate the said premises, or caused any location thereof to be recorded as the Kinna lode, or that his claim is without right, or that he has not any estate, title, interest or right to the possession of said premises. The appellant then founds his claim to the premises by virtue of a location made on the 1st day of January, 1883, by the name of the Kinna lode, the premises being then vacant mineral lands of the United States; such location having been made in full compliance with the laws of congress and Montana territory by one Iver Wolfe.

That on the day of January, 1883, the appellant purchased the premises from Wolfe, and ever since the 1st day of January, 1883, the appellant and his predecessors in interest have been the owners, held possession, and duly represented said Kinna lode, and ever since said time this defendant has been, and now is entitled to the possession of the same. That whatever claim the respondent ever had, if any, to said premises, was forfeited prior to the 1st of January, 1883.