of the defense, namely, the untruth of the representations, would be wanting. In order to substantiate the charge that the representations were false at this period, the defendants not only submitted evidence to prove the state of things at other times, but also introduced defendants' agents and the Hills themselves, to testify concerning the facts as they appeared to them on and before the 28th of July; and the evidence thus furnished, as defendants argue, establishes the proposition that the representations were then untrue. This evidence embraced the personal observations and discoveries of two of the defendants and a number of their agents, made between the 12th and 28th of July; and certainly, if credited, it shows that these witnesses then discovered gypsum, and that the brine was greatly deficient in strength and quantity. This proof we must either credit or reject. If we reject it, the defendants' position is not sustained. If we give it credit, it shows necessarily that defendants became acquainted with the real facts in season to recede. They were then in possession under verbal arrangements without having paid anything, and they held in their hands the products of the well. We do not overlook the circumstance that defendants now claim to have been led to an erroneous view, at this time, of the true meaning of appearances, by new statements of Remington, to which they trusted. This explanation is too narrow, and fails to meet the necessities of the case. It is quite out of joint with the proved experience and information of the Hills, and the grounds they seem to have had for trusting to the knowledge of Remington, and it does not harmonize with the course of defendants after, as they assert, the defects were conclusively developed. It is inconsistent, also, with the statements of Isaac H. Hill to, and his conduct toward, defendant Middlebrook in February, 1865. At this time, the defendants, according to their evidence, had fully ascertained that the well contained much gypsum, and that the brine was greatly deficient in strength and quantity; and yet Mr. Isaac H. Hill then gave Middlebrook to understand that the three thousand dollar payment would be made at maturity: See Deuel v. Higgins, 9 Mich. 223.

There is a further difficulty in the way of this explanation. From the evidence given by defendants as trustworthy, it appears that their agents, employed at the works and expert in

such matters, found out the defects before the 28th of July. And when we reflect upon the nature of the subject, the position and relation of the parties and the surrounding circumstances, we think it reasonable to hold that the knowledge of the agents was shared by the principals. We have not failed to observe that defendants' evidence tends to show that the well grew increasingly worse from the 12th of July, and that defendants claim they were not aware that the injurious conditions were permanent until long after that time. But we observe, also, that the right to defend on the ground taken by the answer depended upon the existence of damaging deviations before the mortgage, and not upon the permanence or subsequent enlargement of the deviations; and that defendants' ignorance that the unfavorable conditions were permanent and growing could not break the effect of their seasonable knowledge of the conditions as they were on the 28th of July.

We have not detailed the evidence, which covers more than six hundred printed pages, nor have we followed counsel in their elaborate quotations from it, but have dwelt rather upon its bearing and effect; and the opinion it leads us to form is, that the defendants, on the 28th of July, 1864, had knowledge of all the deviations from the represented conditions which they have proved then existed.

Having reached this conclusion it follows that the decree below must be reversed, with costs, and that complainants must recover the principal and interest secured by the bond and mortgage. As the special commissioner in the circuit court, under an order there made, ascertained and reported the amount, which he found to be eighteen thousand four hundred and forty-five dollars and sixty-six cents on the 7th day of May, 1870, and as neither party has complained of this part of the report, a further reference will be unnecessary, and the usual decree of foreclosure and sale, which may be entered, may proceed on the basis of this portion of that report. The decree, however, should give the defendants three months before the sale for the payment of the sum reported, with interest at seven per cent. per annum from the seventh of May, 1870, and the case should be remitted to the court below for the execution of the decree.

The complainants will recover their costs in both courts. The other justices concurred.

INDEX.

ABANDONMENT-See FORFEITURE.

AGENT.

1. Agent not responsible to extent of principal.--The agent of the works
sued was made a party defendant to bill in equity for injunction against
trespass by mining, and for account of ore taken; all the trespasses com-
plained of were done by subordinates under him, and were for the sole
lea fit of the works: Held, that the bill should be dismissed as to him.
but without costs. Stockbridge Co. v. Cone Iron Worcs,
317

vance.

2. Organizers, acting as corporate agents, can not take profit against
the company.-Parties purchased oil land, and shortly afterward, with
others, formed a corporation to whom the land was conveyed at an ad-
If the purchasers acted as agents of the company in purchasing the
land, they could not charge a profit against their principal. They would
be in the same position if they assumed so to act without precedent
authority, if their doings were accepted as the acts of agents by the com-
pany. Simons v. Vulcan Oil Co.,

633

3. Payment to agent.-The receipt of money by an agent is prima
facie evidence of the receipt by a principal; and the receipt by one part-
ner, that it is for the firm. Id.

ALIEN.

1. Alienage, a matter between the subject and ruler.-Alienage is not
a disability of which advantage can be taken by a citizen in a contest
with an alien. It is the office of the government only, to declare a for-
feiture of the alien's estate. This rule (the court seem to intimate) would
apply to the case of possessory mining claims on the public domain located
or purchased by aliens and citizens adversely to each other. Territory
v. Lee,
248

APPURTENANCES-See FIXTURES, 3.

ASSESSMENT--See FORFEITURE, 19, 23; FRAUD, 41.

ATTORNEY AT LAW-See Fraud, 58.

BARRIERS.

1. Lower mine must protect itself.—It is the business of the owner of
the lower mine to protect himself by barriers or otherwise; the duty of
leaving barriers is not incumbent upon the owner of the upper mine.
Smith v. Kenrick,

142

BARRIERS. Continued.

2. Facts of the case.-Plaintiff was possessed of a colliery, and the
defendant of a colliery upon a higher level than that of plaintiff. A pre-
vious occupant of defendant's works, with whom defendant was in no
wise connected, had worked through and into defendant's barrier of coal,
so as to leave them exposed to the accumulation of water, upon the re-
moval of certain coal standing in the defendant's mine; defendant re-
moved this coal in his own mine, whereupon the water escaped into the
lower mine, through the wrongful act of the previous occupant of defend-
ant's mine: Held, that defendant was not responsible for the injury re-
sulting. Id.

3. Foreign water.-The owner of the lower mine can only protect
himself from the water coming from the upper mine on the dip by leav-
ing barriers; but a failure to leave barriers does not justify the owner
of the upper mine in drawing foreign water into it and letting it flow
upon the lower mine. Crompton v. Lea,
179

See FLOODING.

BILLS AND NOTES-See FRAUD, 37.

BOUNDARIES-See POSSESSION, 1.

CERTIORARI.

1. Judgment upon certiorari under statute.-Un ler the statute, by
which a cause was taken to the District Court of Gilpin County from a
justice's court by certiorari, it is in the power of the court to render an
independent judgment, to review and revise the whole case, and give
such a judgment as the justice should have given. Miller v. Sparks,
232

CLAIM.

1. A claim is a title.-Claims located on the public lands are recog-
nized, practically, as titles; recognized by courts as legal estates of free-
hold, except as to doctrine of abandonment. Merritt v. Judd,
COLLIERY.

62

1. Colliery, a trading concern.-A colliery is not only an enjoyment
of the estate, but, in part, carrying on a trade. Dudley v. Warde,
See FIXTURES, 1.

34

CONSIDERATION.

1. Inadequacy of consideration without fraud.-Gross misconception
of the value of a purchase is not sufficient to set the purchase aside, where
the means of ascertaining the value are left open to the vendee, and there
has been no deception practiced by the vendor. Warner v. Daniels,
436

CONSPIRACY.

1. Act of one binds all.-The acts and declarations of one of several
conspirators are evidence against all. Page v. Parker,
544

2. Evidence, after conspiracy proved.-There being evidence that the
purchase and sale of land was the combined act of two parties, the pub-
lishing of a prospectus, advertisement, etc., by one was evidence against
both. Simons v. Vulcan Oil Co.,

633