over proper exceptions, it has no authority to approve the report. It is urged on behalf of appellees that the bill of exceptions fails to show that all the evidence taken before the referee is incorporated therein. If we were required to examine the testimony upon which the referee based his report, this would be a material question; but, the court having failed to examine the testimony returned by the referee, no findings have been made which we can review. In other words, until the court has regularly approved or modified the report of the referee, we are not required to do so, for the reason that this court cannot review findings of fact and conclusions of law which have never been made. The judgment of the district court is reversed, and the cause remanded for further proceedings. Reversed and remanded. (28 Colo. 156) MCALLISTER v. PEOPLE, to Use of (Supreme Court of Colorado. Dec. 17, 1900.) 1. Where the remedy against a surety is reserved by taking a default judgment against him, a dismissal as to the principal, even if it operates to release him, does not release the surety. 2. Under 2 Mills' Ann. St. § 4807 (Gen. St. 1883, § 3632), and Civ. Code, § 13, permitting the obligee in an administrator's bond to sue any or all the obligors, a dismissal as to the principal, sued with a surety, is not a release of the surety; the effect being the same as though the action had been brought against the surety only. 3. Where the breach of a bond sued on consisted in the failure of the obligor, an administrator, to account to the estate for certain moneys, a copy of his report, furnished by plaintiff, showing the balance due as it appeared from an itemized statement of his receipts and expenditures, is a sufficient compliance with Civ. Code, § 63, requiring an itemized statement to be furnished. 4. On a trial to the court, in an action by an administrator de bonis non against the surety of his predecessor, error in permitting plaintiff to testify that his predecessor, at the time of plaintiff's appointment, handed to him a book in which he kept his accounts as administrator, and allowing him to testify therefrom, without introducing the book, is harmless, where the record of the county court in which the same items appeared was afterwards introduced. 5. Under 1 Mills' Ann. St. §§ 1101-1103 (Gen. St. 183, §§ 512-514), making record entries in probate matters, or a certified copy thereof, evidence in all courts of the state, if the county court permits one of the books of its office to be taken into another court as evidence, it cannot be objected that the original, and not a certified, copy is produced. Appeal from district court, Lake county. Action by the people, etc., to the use of W. H. Brisbane, administrator de bonis non of the estate of Charles Leitzman, deceased, against H. D. McAllister. From a judgment for plaintiff, defendant appeals. Affirmed. A. W. Stone and N. Rollins, for appellant. J. E. Havens, for appellee. CAMPBELL, C. J. Edward Forbes was the administrator of the estate of Charles Leitzman, deceased. For his failure well and truly to administer its assets, the county court of Lake county, having jurisdiction of the matter, removed him, and appointed W. H. Brisbane administrator de bonis non. This action was brought by the latter against Forbes as principal, and H. D. McAllister as surety, on Forbes' official bond, to recover the amount due the estate because of the administrator's default. Both Forbes and McAllister were served with process. The plaintiff voluntarily dismissed as to Forbes, and took judgment against McAllister, who had suffered default. Afterwards, this default and judgment were set aside, and, upon a trial to the court without a jury, a judgment for $3,422.69 was rendered against the surety. 1. The first objection to the judgment is that the action of the plaintiff in dismissing the action as to Forbes operated as a release of the principal in the bond, and consequently a discharge of the surety. Whether the dismissal released the principal we need not inquire. The remedy against the surety was expressly reserved by the obligee by taking judgment against him, and the surety, therefore, was not discharged. 1 Brandt, Sur. § 147. Whatever the law be elsewhere, our statute (2 Mills' Ann. St. § 4807; Gen. St. 1883, § 3632) permits the obligee in an administrator's bond to sue all, or any one or more, of the obligors at his pleasure. When the action was dismissed as to the principal, and continued as to the surety, it was the same as though the action in the first instance had been brought by the obligee against the surety only. This is permitted by section 13 of the Civil Code, as well as by the section of the General Statutes cited. 2. Complaint is made that, in response to the demand of the defendant, the itemized account furnished by the plaintiff was inadequate, and the court improperly allowed the trial to proceed without a sufficient statement. It is contended by plaintiff, as this is an action upon a bond, and not upon an account, that section 63 of the Code, providing for an itemized statement in an action on account, is not applicable. That question is not important here, for a sufficient itemized statement was furnished. The breach of the bond consisted in the failure of the administrator to account to the estate for certain moneys which came into his hands, and the statement furnished was a copy of the report which the administrator filed in the county court, showing the balance due, as it appeared from an itemized statement of his receipts and expenditures. 3. It is urged that the trial court erred in admitting certain evidence introduced by the plaintiff. Brisbane, the administrator de bo nis non, was permitted to testify that the ad ministrator, Forbes, at the time of the former's appointment, handed to him, as his successor, a book in which were kept Forbes' accounts as administrator, and Brisbane was permitted to testify therefrom, without introducing the book in evidence. Whether this But was erroneous or not is not material, for the record of the county court, in which precisely the same items of account appeared, was afterwards introduced in evidence. As the trial was to the court without a jury, the testimony of the administrator de bonis non was not prejudicial, even if erroneous. it is said that the court improperly ruled in permitting the record itself, rather than a certified copy, to be introduced in evidence. We are not now considering the question whether the judge or clerk of the county court can be compelled to produce in the district court its record as evidence when the statute makes a certified copy admissible. If the county court permits one of the books of its office to be taken into another court as evidence, the objection that the original, and not a certified copy, is produced, is not tenable. 1 Mills' Ann. St. §§ 1101-1103 (Gen. St. 1883, §§ 512-514). There is no merit whatever in any of the objections urged against this judgment, and it is accordingly affirmed. (28 Colo. 176) BREWSTER v. SHOEMAKER et al. (Supreme Court of Colorado. Dec. 17, 1900.) MINES AND MINERALS-LOCATION OF CLAIMSCONFLICTING CLAIMS-DISCOVERY AFTER LOCATION. 1. Where the location of a mining claim is void because of the absence of a valid discovery of mineral, a subsequent discovery of mineral after the filing of the location certificate, and after all acts of location have been performed, will validate it, if such subsequent discovery is made before the rights of any third party have attached. 2. Where a vein is discovered in driving a tunnel at a point 250 feet below the surface, a valid location of the claim can be made by marking the boundary on the surface at the place at which the vein, if continued to the surface, would be disclosed, though no surface work is done, and no actual tracing of the vein to the surface is attempted, and though the tunnel was not being located under the tunnel site act of congress, and was driven through patented property, not belonging to the owners of the lode discovered. filed his adverse therein, and brought this action in its support. The facts material to the present controversy may thus be stated: The location of the Contention lode was made on May 1, 1898. No question is raised as to its validity, provided it was unappropriated public domain at the time of plaintiff's entry. The location of the Bootjack lode is claimed as of the 9th day of November, 1897, and also January 28, 1898. The first discovery of mineral was upon patented ground, and not within the boundaries of the Bootjack claim, as staked. It was therefore void. On the 28th of January, 1898, a valid discovery of mineral was made within these boundaries, and an amended location certificate filed. Both these discoveries of mineral were at a point about 250 feet below the surface, and upon the same vein, and were made in driving a tunnel; the latter discovery being at a point on the vein uncovered by running the tunnel further into the mountain. It was not a statutory tunnel,-that is, not located under the tunnel site act of congress, but was driven by the owners of the Bootjack lode through patented property, not belonging to defendants, and into the territory in dispute, under an arrangement made between the patentee and the tunnel owners. The vein in the tunnel dipped about three degrees from the vertical. A calculation was made, based upon the dip of the vein as thus disclosed, and at a point on the surface where, according to such calculation, the vein should come to the surface, a discovery notice was posted, containing the statement required by statute, and also a recital that a like notice, which is admitted, was at the place of discovery (describing it), and information was given how to reach it through the tunnel. Starting with this discovery stake on the surface as the initial point, the boundaries of the claim were designated, and the stakes set, as the statute prescribes. tracing of the vein upwards was done, and no surface work performed, by the locators of the Bootjack claim. The vein found in the tunnel was not by actual exploitation shown to apex within the limits of the claim, but only as might inferentially appear from the calculation to which reference has been made. When the plaintiff appeared upon the ground and made his attempted location of the Contention lode, the posted notice and boundary stakes of the Bootjack were in No Appeal from district court, San Miguel place, and the location certificate was on file. county. Action by Arthur Brewster against George W. Shoemaker and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed. The action concerns a strip of ground in conflict between the Bootjack and Contention lode-mining claims, situate in San Miguel county. The Bootjack is the earlier location in point of time. When its owners (defendants) applied in the land office for a patent, plaintiff, the owner of the Contention lode, Upon this state of facts, and with evidence as to other acts necessary to constitute a valid location of a mining claim, the case was submitted to the jury, under the instructions of the court, and a verdict returned for the defendants, upon which judgment was entered. Gerry & Taylor and W. H. Tripp, for appellant. Hogg & Hamill, for appellees. CAMPBELL, C. J. (after stating the facts). Upon this appeal two questions only are im portant, and, as stated by appellant's counsel, they are: (1) Can a location admittedly void, because of an absence of a valid discovery of mineral, but regular in all other respects, be made good by a subsequent valid discovery of mineral within the limits of the location, made before the rights of third parties attach, but after the filing of the location certificate and all acts of location have been performed? (2) May a location of a valid mining claim be based upon an underground discovery of mineral made upon the dip of the vein at a distance of 250 feet below the surface, or any other distance, through a tunnel not statutory,-that is, not claimed under the tunnel site act of congress, -where the vein has never been opened upon the surface, or shown by actual working to have its apex within the limits of the claim as staked? 1. Plaintiffs rely upon Upton v. Larkin, 5 Mont. 600, 6 Pac. 66; Id., 7 Mont. 449, 17 Pac. 728,-which was afterwards affirmed in Larkin v. Upton, 144 U. S. 19, 12 Sup. Ct. 614, 36 L. Ed. 330. In the opinion, as reported in 5 Mont. and 6 Pac., supra, it was said that a location void at the time it is made, because of no discovery, or because the discovery was made on a claim already located and patented, continues and remains void, and is not cured or made effectual by a subsequent discovery on the claim located. Upon a second appeal of the same case, reported in 7 Mont. and 17 Pac., supra, the learned court seems to recognize the doctrine laid down by Mr. Justice Sawyer in the case of Jupiter Min. Co. v. Bodie Consolidated Min. Co. (C. C.) 11 Fed. 666, wherein it was said that in such a case a subsequent valid discovery, made before any other person has acquired any rights, will make such a location good. But the court proceeds at the second hearing, with the case then in hand, to say that the evidence sought to be introduced at the trial to show a subsequent valid discovery was properly rejected because it appeared-or at least it was not clear that the contrary was true that the subsequent discovery to which the evidence was directed was made after the application for patent was filed. And the court held that a patent ought not to issue upon a discovery made after application. It also declared that the offer of evidence was not made in good faith, but to enlist the sympathy of the jury. In the review of the case by the supreme court of the United States there is nothing said to give color to the position taken here by appellant's counsel. Whether the owners of the Bootjack lode, in connection with the second discovery of mineral,--the one within its exterior boundaries,-in January, 1898, supposed they were merely amending the former attempted location by correcting the description and filing an amended location certificate, or whether they intended to make, and supposed they were making, a relocation of an abandoned claim, is immaterial; for, be fore the rights of third persons, including the claimant, attached, it is admitted that they had taken all of the steps which, under the federal and state statutes, constitute an appropriation of a lode mining claim. The order of time in which these several acts are performed is not of the essence of the requirements, and it is immaterial that the discovery was made subsequent to the completion of the acts of location, provided only all the necessary acts are done before intervening rights of third parties accrue. All these other steps having been taken before a valid discovery, and a valid discovery then following, it would be a useless and idle ceremony, which the law does not require, for the locators again to locate their claim, and refile their location certificate, or file a new one. In the case of Beals v. Cone, 62 Pac. 948, we have ruled against appellant's contention. The United States circuit court of appeals for the Eighth circuit, in Erwin v. Perego, 35 C. C. A. 482, 93 Fed. 608, in a case coming up from Utah, has reached the same conclusion. We know of no statutes of this state that require a different ruling. Other authorities sustaining our conclusion are Craig v. Thompson, 10 Colo. 517, 16 Pac. 24; North Noonday Min. Co. v. Orient Min. Co. (C. C.) 9 Morr. Min. R. 529, 1 Fed. 522; Strepey v. Stark, 7 Colo. 614, 5 Pac. 111; Mining Co. v. Mahler, 4 Morr. Min. R. 390; Jupiter Min. Co. v. Bodie Consol. Min. Co. (C. C.) 4 Morr. Min. R. 411, 11 Fed. 666; 1 Lindl. Mines, § 335 et seq.; Morr. Min. R. (9th Ed.) 28, and cases cited. 2. In Ellet v. Campbell, 18 Colo. 510, 33 Pac. 521, it was held that when a tunnel claim has been duly located under the provisions of the acts of congress, and the owner thereafter discovers a mineral lode therein, he is not bound to make another discovery and location of the lode from the surface, in order to be protected against a subsequent surface location of the same lode. This case was affirmed by the supreme court of the United States in Campbell v. Ellet, 167 U. S. 116, 17 Sup. Ct. 765, 42 L. Ed. 101. This, however, is not controlling of the proposition now under consideration. In the case at bar the defendants were not attempting to locate a tunnel site under the acts of congress. The mouth of the tunnel was not upon the Bootjack claim, and the entire work was done upon patented land by the plaintiff's under agreement with the patentee. The point of discovery was over 800 feet from the mouth of the tunnel. As well said by Mr. Morrison in his work on Mining Rights (9th Ed.) 30: "The fact of discovery is a fact of itself, to be totally disconnected from the idea of discovery shaft. The discovery shaft is a part of the process of location, subsequent to discovery." Certainly there is no requirement of the federal statute that a vein shall be discovered from the surface. The only requirement in that respect is that the place of discov ery shall be within the limits of the claim. Under our statute (Mills' Ann. St. § 3154; Gen. St. 1883, § 2403) where a lode is cut at a depth of 10 feet below the surface by means of an open cut, cross cut, or tunnel, it is the same as if a discovery shaft were sunk on the vein to that depth. Gray v. Truby, 6 Colo. 278; Development Co. v. Van Auken, 9 Colo. 204, 11 Pac. 80. The question here is not whether a subsequent discovery on the apex of the lode would take precedence of the prior discovery on the dip, for there is no claim here that plaintiff's subsequent location is on the apex of the same lode on whose dip defendants' discovery was theretofore made. But the question is whether a valid location can be made by a discovery at a point 250 feet beneath the surface, when it is followed up by a marking of the boundaries on the surface as though the discovery had been made from the surface, and by the doing of the other acts which the statute requires, though no surface work is done, and no actual tracing of the vein to the surface attempted. The precise question has not, to our knowledge, been decided by a court of last resort, but we do not see why a location such as has been made by the defendants is not good. It has been held that where the discovery is made in a discovery shaft along the course of a vein, and the surface boundaries marked with reference to its course or strike as disclosed in the discovery shaft, the presumption is that the vein continues on the same course throughout the limits of the claim. When, as in the case at bar, the discovery is made underground upon the dip of the vein, it is fair to assume, in the absence of a contrary showing, that the vein extends upward at the same angle; and a marking of the boundaries by making the place at which the vein, if continued to the surface, would be disclosed, the initial point, is a sufficient compliance with the law. That the mouth of the tunnel was not upon the claim we do not consider important. That the tunnel was driven through patented property, not belonging to the owners of the lode discovered, is something of which the plaintiff cannot complain. If the owners of the land through which the tunnel is driven give their consent thereto, a third person may not object. Sufficient notice was conveyed to the public of this location. The defendants not only placed in the tunnel, at the point of discovery, a discovery stake and notice, but also posted the discovery notice on the surface, containing not only the things required by statute, but in addition informing the public of the exact spot where the discovery was made, and furnishing information how to reach the same through the tunnel, where inspection might be had. We do not think it necessary, in a discovery which is made underneath the surface, that the locator shall, at the risk of losing his claim, demonstrate by actual working that the top or apex is within the limits of his location. In the absence of some proof to the contrary, the court will presume, as we have said already, that the vein continues in its upward course on the same angle to the surface; and if the locator selects and traces his boundaries with reference to this place on the surface, so as to include it within the limits of his claim, nothing further in this respect is required. On this last point Armstrong v. Lower, 6 Colo. 393, and Wakeman v. Norton, 24 Colo. 192, 49 Pac. 283, though not deciding the precise question, are, in principle, authority for the holding here. The judgment of the court below is in harmony with our views, and it is affirmed. (28 Colo. 110) CITY OF DENVER et al. v. HAYES et al. (Supreme Court of Colorado. Dec. 3, 1900.) MUNICIPALITIES AUTHORITY TO CONTRACT DEBTS-SUBMISSION TO ELECTORS-SEP ARATE PROPOSITIONS-INTEREST. 1. Under Const. art. 11, § 8, and Sess. Laws 1893, p. 200, § 9, and Sess. Laws 1899, pp. 371, 372, requiring the question of incurring a municipal debt to be submitted to the qualified electors, and enumerating eleven purposes for which the city council may issue bonds, an election is invalid which submits more than one proposition in such a manner that the elector must vote for or against them as a whole. 2. Where bidders for a municipal bond issue make a deposit as guaranty of good faith, but afterwards sue to recover it because of the invalidity of the bonds, they are not entitled to interest. Appeal from district court, Arapahoe county. Action by William J. Hayes and others From against the city of Denver and others. a judgment for plaintiffs, defendants appeal. Affirmed. J. M. Ellis, City Atty., Guy Le Roy Stevick, Asst. City Atty., S. L. Carpenter, Asst. City Atty., and N. B. Bachtell, Asst. City Atty. (Fred. A. Williams, George F. Dunklee, and James H. Brown, of counsel), for appellants. Bicksler, McLean & Bennett and Thomas W. Heatley, for appellees. CAMPBELL, C. J.. The ultimate object of this action is to test the validity of an issue of so-called "Auditorium Bonds" of the city of Denver, aggregating $400,000. Appellees, who were the successful bidders therefor, accompanied their bid by depositing with the city treasurer $8,300 as evidence of their good faith, which, if their bid was accepted, was to be applied on the purchase price. Discovering, as they say, the invalidity of the bonds after the deposit was made, they brought this action to recover the same, when the city refused to refund it. It is a friendly action, but the controversy is real, and the pleadings are so framed as to demand a decision of the question argued. The constitutional and statutory provisions which control are section 8 of article 11 of the constitution, and sections 154 and 156 of the charter of the city of Denver,-the former of which is found in Sess. Laws 1899, pp. 371, 372; the latter in Sess. Laws 1893, p. 200, § 9. The sections, excluding words superfluous in this discussion, are: "No city or town shall contract any debt by loan in any form, except by means of an ordinance specifying the purposes to which the funds to be raised shall be applied. * * But no such debt shall be created unless the question of incurring the same shall at a regular election for councilmen, alderman or officers of such city or town, be submitted to a vote of such qualified electors thereof as shall, in the year next preceding, have paid a property tax therein, and a majority of those voting on the question, by ballot deposited in a separate ballot box, shall vote in favor of creating such debt. Const. art. 11, § 8. * "No loan shall be made and no bonds shall be issued for any purpose except in pursuance of an ordinance authorizing the same; * and such ordinance shall specify the purposes for which the sums to be raised shall be applied; * but no such debt shall be created nor bonds issued unless the question of incurring the same and issuing bonds therefor shall be submitted to the vote of such of the qualified electors of the city as shall in the next year preceding have paid a property tax therein, and a majority of such voting upon the question by ballot shall vote in favor of creating such debt and issuing such bonds." Sess. Laws 1893, p. 200, § 9. "The city council is hereby authorized to contract an indebtedness on behalf of the city, and upon the credit thereof, by borrowing money and issuing bonds of the city at a rate of interest not exceeding five (5) per cent. per annum: (a) For the purpose of erecting public buildings, including a public auditorium. (b) For the purpose of constructing and maintaining public sewers for the city. (c) For the purpose of purchasing lands for parks and public squares within or without the city limits, and for the purpose of condemning sites for parks and public squares, and the assessments of benefits for the same and for sites for public buildings for said city. (d) For the purpose of improving existing parks. (e) For the purpose of building and constructing viaducts for the city, or aiding in the building or construction thereof. (f) For the purpose of constructing reservoirs within or without the city limits, for the storage of water to be used in irrigating the trees in said city, and for sanitary or domestic purposes in said city, and to acquire lands for such reservoirs. (g) For the purpose of constructing bridges and their approaches. (h) For the purpose of taking up, paying, redeeming and refunding any bonded indebtedness of the city, or any part thereof. (i) For the purpose of improving the banks and channels of South Platte river, and for acquiring a right of way for a new channel for Cherry creek, and for turning the same. (j) For the purpose of constructing and purchasing a channel or channels, or ditches, or conduits, or some suitable system of supplying waters in the city. (k) For paying the city's proportion of any local improvements, where by this act any part of the cost thereof is to be paid by the city. Said indebtedness and bonds for all said purposes, together with all general indebtedness and bonds of the city previously issued, not to exceed in the aggregate the amount limited by the constitution of the state of Colorado." Sess. Laws 1899, pp. 371, 372. The city council passed Ordinance No. 31 of the Series of 1899, which provided for submission, at the regular municipal election of that year, to the vote of the qualified electors of the city, the question of incurring an indebtedness in behalf of the city of $400,000 for the elever separate and distinct purposes above classified, from "a" to "k." The form of the ballot as therein prescribed required each elector to designate, by a cross mark in the margin of the ballot, his answer to the questions submitted. They were two, or rather the question was only one, but in the alternative,-for incurring, and against incurring, the indebtedness. The eleven separate and distinct purposes were so grouped in one proposition that an elector desiring to vote for any one purpose was, to accomplish it, obliged to vote for all collectively, though he might favor one only, and be against the others; and, if he wished to vote against any one purpose, though he might not object to any of the others, he must vote against all. In other words, he was not permitted to vote for one or more of the separate purposes, and against the others, but he must vote for all, against all, or not vote at all. A majority of the electors voted in favor of incurring the indebtedness and issuing the bonds. After the vote was taken and canvassed, and the result declared, the city council proceeded to enact Ordinance No. 67, Series of 1899, whereby it assumed to create an indebtedness in the sum of $400,000, and to issue bonds therefor, and out of the proceeds received from their sale it was proposed to set aside one-eighth as a park fund (the charter elsewhere providing that oneeighth of all proceeds from bonds voted should be so applied), and seven-eighths to the building of a public auditorium. There are four particulars in which the bonds are said to be invalid. In the view we take of the controversy, it is necessary to consider only one. It is the contention of plaintiffs that the bonds are invalid because Ordinance No. 31, providing for ascertaining the will of the voters, and the election called in pursuance thereof, were invalid, in that in the ordinance and the notice for the election, and in the form of the ballot to be used, eleven separate purposes were |