Undoubtedly, when a witness has testified to matters material to the issues, the party against whom he has testified may, in the crossexamination, show that the witness is hostile to or prejudiced against him, (People v. Wasson, 4 Pac. REP. 555; Greenl. Ev. § 450,) and to that end may lay the foundation for showing that the witness has attempted to buy or bribe other witnesses. But this can only be done when the witness has testified to material matters. Were the matters testified to by the witness in this case material? The testimony above. quoted is all the testimony in the case which is found in the record. There was no issue as to the fact that Dierssen was a retail grocer, and carried a stock in trade amounting to from $1,200 to $1,500 in value.

In the complaint it is alleged that Dierssen transferred to the defendant four barrels of whisky, of the value of $500, and in the answer it is admitted that he transferred four barrels of whisky of the value of $300. Nothing appears in the pleadings or elsewhere as to the kind or quality of the whisky. It would seem, therefore, that when the witness testified that whisky was worth $1.25 per gallon, and a barrel contained from 40 to 45 gallons, he was testifying to no more than was admitted by the defendant. Besides, the value of all the property transferred, as found by the verdict of the jury, was only $400, and no complaint is made that the damages are excessive. On the whole, we are unable to see that the court committed any material error in the rulings complained of. The court instructed the jury very fully upon every question in the case. These instructions stated the law of the case fairly and clearly, and we fail to see that they were either contradictory or misleading. Several instructions asked by the defendant were refused, but we think, in so far as they were sound as propositions of law, they were embraced in other instructions given. It would subserve no useful purpose to speak of each of them separately.

The judgment and order should be affirmed.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(67 Cal. 283)

BELL v. MCCLELLAN. (No. 9,909.)

Filed August 12, 1885.

FRAUDULENT SALE-CHANGE OF POSSESSION TO CONSTITUTE.

Sale, which is not accompanied by actual and continued change of possession, is void as against creditors of the vendor.

Commissioners' decision

Department 1. Appeal from superior court, Butte county.

A. F. Jones, T. L. Ford, and Reardon & Freer, for appellant.
Gray & Sexton, for respondent.

BELCHER, C. C. This is an action to recover the possession or value of two hay-presses. It appears that the presses were the property of one Duncan, and were stored on the farm of McNulty, his brotherin-law. On the nineteenth day of January, 1884, Duncan sold the presses to the plaintiff in satisfaction of an indebtedness then due from him to the plaintiff. The plaintiff received a bill of sale of the presses, and immediately wrote to McNulty, stating that he had bought them from Duncan, and asking McNulty to hold them for him. Duncan gave McNulty no notice of the sale. The presses remained stored in McNulty's shed till the second day of June, 1884, when the plaintiff again wrote to McNulty, telling him to let Duncan take them and use them. Under this permission Duncan took the presses, had them repaired at a blacksmith's shop, and used them to bale hay on his own account until the twenty-ninth day of August following. He hired the men, paid them, contracted with parties for baling, and received pay therefor. McNulty was one of the men employed by him, and had charge of one of the presses. On the twenty-ninth of August, Duncan and McNulty went to the plaintiff's store at Oroville, and Duncan then told the plaintiff that he was sick, and did not want the presses any longer, and the plaintiff told McNulty to take them. and continue to bale hay with them for him. McNulty took the presses, and continued baling hay with them for the plaintiff till the fourth of September. On that day they were taken from him by the defendant, acting as sheriff, under a writ of attachment issued out of the superior court in an action commenced by one Davidson against Duncan. Plaintiff never saw the presses, and never took or held possession of them, except as above shown. Davidson never heard of the sale of the presses until the twenty-ninth of August, when Duncan told him he had sold them to the plaintiff in January.

Upon these facts the court below found "that the sale of said presses by C. M. Duncan to plaintiff was made in good faith, accompanied by an immediate delivery, and followed by an actual and continued change of possession, and that plaintiff was on the commencement of this action the legal owner of, and entitled to the possession of, the same." The appeal is by the defendant from the judgment and order denying his motion for new trial.

Conceding that the sale was made in good faith, and was accompanied by an immediate delivery, notwithstanding no notice of the sale was given by Duncan to McNulty, still the appellant insists that it was not followed by an actual and continued change of possession, as required by section 3440, Civil Code. In Stevens v. Irwin, 15 Cal. 506, it is said:

"The delivery must be made of the property. The vendee must take the actual possession. That possession must be open and unequivocal, carrying with it the usual marks and indications of ownership by the vendee. It must be such as to give evidence to the world of the claims of the new owner. He must, in other words, be in the usual relation to the property which owners of goods occupy to their property. This possession must be continuous; not taken to be surrendered back again; not formal, but substantial. But it need not necessarily continue indefinitely, when it is bona fide and openly taken, and is kept for such a length of time as to give general advertisement to the status of the property, and the claim to it by the vendee."

In Cahoon v. Marshall, 25 Cal. 201, it is said:

"What constitutes an actual change of the possession of personal property, as distinguished from that which, by mere intendment of law, follows the transfer of title, is not of difficult solution. It is an open, visible change, manifested by such outward signs as render it evident that the possession of the vendor has wholly ceased." See, also, Godchaux v. Mulford, 26 Cal. 316, and Hesthal v. Myles, 53 Cal. 623

In Stevens v. Irwin the vendee took immediate possession of the property, and held the open, visible, and notorious possession thereof for more than a year, and it was held that the length of time was sufficient to give general advertisement to the world of the status of the property. Here there was no open, visible change of possession, and the constructive possession which the plaintiff took lasted only from January to June. This was a time when there was little or no occasion to use hay-presses; but when the haying season returned, and there was hay to be baled, the presses were again found in the open, visible possession of the vendor, and they so remained, and were used by him on his own account, for nearly three months. We are unable to see how this can be held to be the actual and continued change of possession which the law requires to make the sale valid. as against creditors. It is suggested by counsel for respondent that the question whether the possession is actual and continued as against a creditor is one which must ordinarily be determined by the jury, and that when the testimony is conflicting upon the subject the judgment should not be reversed. The answer is that the testimony here is not at all conflicting, and that, upon the facts as stated, it is simply a question of law whether they show an actual and continued change of possession or not.

We think the judgment and order should be reversed, and the cause remanded for a new trial.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are reversed, and the cause remanded for a new trial.

(67 Cal. 286)

CLARY V. HAZLETT and others.

Filed August 12, 1885.

(No. 9,776.)

1. PUBLIC LANDS-UNAUTHORIZED RESERVATION IN PATENT VOID.

A reservation or condition in a United States patent to land, which is not authorized by law, is void.

2. SAME-PATENT TO PLACER CLAIM-RESERVATION OF VEIN OR LODE.

A reservation in a patent to a placer claim that, "should any vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, led, tin, copper, or other valuable deposits, be claimed or known to exist within the above-de scribed premises, at the date thereof, the same is expressly excepted and ex cluded from these presents," is authorized and valid, and in such case no title will vest in the patentee as to such vein or lode.

Commissioners' decision.

Department 1. Appeal from superior court, Siskiyou county.
Wm. McConaughy, for appellant.

A. B. Gillis and H. B. Warren, for respondent.

SEARLS, C. Action to recover damages for trespass upon mining claims, and for injunction against defendants to restrain them from similar trespasses. Plaintiff bases his action upon a patent issued to him for the locus in quo as a placer mining claim, under the provisions of chapter 6, tit. 32, Rev. St. U. S. Plaintiff's claim is known as the "Ellis Placer Mining Claim," and within the exterior limits thereof there is a regularly defined lode of gold-bearing quartz rock in place, which was known to exist at the time of plaintiff's application for a patent; and his application did not include an application for the lode. The patent to plaintiff contained the usual reservation in such cases, viz.:

"That should any vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, led, tin, copper, or other valuable deposits, be claimed or known to exist within the above-described premises at the date hereof, the same is expressly excepted and excluded from these presents."

The land upon which the alleged trespasses were committed consisted of this quartz lode, which was located by the grantor of defendants in 1879, under the name of the "California Queen Mine," and work by said defendants upon the quartz lode as situate and located. constitutes the supposed trespasses complained of. Defendants had judgment, and plaintiff prosecutes this appeal.

The question in the case upon which the decision must turn is whether, by his patent to the Ellis placer mining claim, the plaintiff acquired title to said quartz lode or vein. Section 2333, Rev. St. U. S., provides as follows:

"Where a vein or lode, such as is described in section 2320, is known to exist within the boundaries of a placer claim, an application for a patent of such placer claim, which does not include an application for the vein or lode claim, shall be construed as a conclusive declaration that the claimant of the

placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof."

*

* *

The preceding portion of the same section provides that the applicant for a patent, being in possession of a placer claim, and also of a vein or lode claim, included within the boundaries thereof, may, upon application therefor, and upon paying five dollars per acre for the lode claim therein, obtain patent for the whole. Appellant contends that the condition in the patent, "that should any vein or lode of quartz, or other rock in place, bearing gold, be claimed or known to exist within the above-described premises at the date hereof, the same is expressly excepted and excluded from these presents," is void. It must be conceded that where a patent contains a reservation or condition not authorized by law, such reservation or condition is a nullity. Stark v. Starrs, 6 Wall. 402; Wolfley v. Lebanon Min. Co. 4 Colo. 115.

The land department is but an instrument by which the objects of the law are attained; its jurisdiction and mode of procedure are defined by law, and its results must be such as are warranted by the paramount authority under which it acts. Assuming this hypothesis as correct, it becomes necessary to inquire whether the clause quoted from section 2333 authorizes the reservation in the patent to plaintiff. Upon this question we do not entertain a serious doubt. The language of section 2333-in cases of known lode claims in placer mines applied to be patented, and which lode claims are not sought to be patented-is explicit, and such omission "shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim." If he has no right of possession, it must follow that he has no right to a patent. Congress has provided the manner in which a right to possession of mining claims may be acquired, and has further provided for the issuance of patents to those who have acquired such right to possession,—has provided that, in case of adverse claims, he who substantiates his right to possession shall thereupon be entitled to a patent. And when the language in question is considered in connection with the context, and with the other provisions of the mining law, the conclusion is reached that by the waiver of his right to possession a waiver of his right to a patent is implied. The latter is a sequence of the former, and cannot exist without it. By this construction the harmony of the whole section is maintained, while the interpretation claimed by counsel for appellant would permit an applicant for patent to acquire title to a quartz claim at $2.50 per acre, instead of $5, as provided by law, and would render the latter clause of the same section, under which unknown quartz lodes pass to the patentees of placer mines, unnecessary. We conclude the exception and exclusion of the quartz lode in question, as specified in the patent, was authorized by law, and that