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16.

A patent carries riparian rights: Vansickle v. Haines, 15 M. R.— 17. Patent when subject to water rights previously acquired: Barnes v. Sabron, 4 M. R. 673; Osgood v. Eldorado Co., 5 M. R. 27.

18. Patents in confirmation of Mexican grant invest patentee with ownership of precious metals: Ah He v. Crippen, 10 M. R. 367; Moore v. Smai, 12 M. R. -. The same as to direct patent: Pacific Co. v. Spargo, 16 Fed. 348.

19. Right to follow unpatented vein into patented ground: Blake v. Butte M. Co., 9 M. R. 503.

20. Patent does not relate back to pre-emption so as to affect intervening appropriation of water: Osgood v. Eldorado Co., 5 M. R. 37.

21. A patent issued pending an adverse claim is void: Rose v. Richmond Co., 17 Nev. 26; 114 U. S. 576. Filing adverse suspends right to issue patent: Id.

22. State entitled to injunction to prevent removal of mineral from State lands pending proceedings to cancel patent: People v. Morrill, 26 Cal. 337.

23. Patent includes all veins having their tops or apices within the surface patented: Iron Silver M. Co. v. Cheeseman, 9 M. R. 552.

24. An equitable title must yield to that which the patent conveys: U. S. v. Southern Colorado Co., 18 Fed. 273.

25. A patent to fictitious grantee is void: Id.; Moffat v. U. S., 112 U. S. 24.

26. In a suit to set aside patent burden of proof is on complainant to prove even his negative allegations, but slight evidence will be sufficient to shift it. Non-existence of alleged patentees may be shown by evidence of witnesses who lived in the neighborhood and would presumably have known them: Id.

27. Prior applicant for patent need not adverse later application: Steel v. Gold Co., 18 Nev. 80.

28. Right to lode dipping under patent: Pacific Co. v. Spargo, 16 Fed. 348.

29. Fraud to set aside patent must be fraud extrinsic to the matter tried in the land office: U. S. v. White, 17 Fed. 561; U. S. v. San Jacinto Tin Co., 23 Fed. 279. The representations must have been falsely and fraudulently made. A mistake as to character of land will not suffice: U. S. v. Iron Silver Co., 24 Fed. 568.

30. On such bill the United States must tender purchase money: U. S v. White, 17 Fed. 561.

31. Proceedings to vacate coal lands though patented without fraud: U S. v. Mullan, 10 Fed. 785.

32. Patent not to be collaterally attacked. Not to be impeached by trespassers: Cowell v. Lammers, 21 Fed. 200.

33. Patent to railroad set aside because ground known at the time to contain minerals: McLaughlin v. U. S., 107 U. S. 526; West. Pac. R. R. v. U. S., 108 U. S. 510.

34. Railroad patent on mineral lands. Conclusiveness of patent. A mine can not be located on patented land although mines were excepted out of the grant: Cowell v. Lammers, 21 Fed. 200.

35. A town site entry is inoperative as against land within its limits of known mineral value: Deffeback v. Hawke, 115 U. S. 392; Pierce v. Sparks, 22 N. W. 491 (Dak.).

36. Patent title relates back to entry: City of Denver v. Mullen, 7 Colo. 345.

37. Monuments to control courses in patent calls need not be " unquestionable: " Cullacott v. Cash M. Co., 8 Colo. 179. If identity of the grant is possible, misdescription does not invalidate: Id.

38. An act of Congress containing no words of present grant does not operate to convey land: Schwenke v. Union Co., 7 Colo. 512.

39. The proof to set aside patent must be unequivocal: U. S. v. Maxwell Land Grant, 26 Fed. 118; U. S. v. Iron Silver Co., 24 Fed. 568.

40. A patent may be set aside for false representations: Moffat v. U. S., 112 U. S. 24.

HANCOCK ET AL. V. HODGSON ET AL.

(4 Bingham, 269; 13 Eng. Com. Law, 499. Court of Common Pleas, 1827.)

Directors' contract securing purchase money. By a deed which recited that defendants, the directors of a mine company, had purchased a mine for £4,500, to be paid within a twelvemonth, out of the moneys to be raised by the company, with a proviso that the directors should be allowed six months further time, in case the bankers of the company should not within the twelvemonth have received sufficient deposits from the subscribers to enable the directors to pay thereout, the directors covenanted that out of the payments so to be made by the subscribers, they would pay the purchase money, at time specified, subject to the aforesaid proviso: Held, that the directors were personally responsible at the expiration of the eighteen months.

The plaintiffs declared in covenant on certain articles of agreement under seal between the plaintiffs on the one part, and the defendants, directors of the company or association thereinafter mentioned, of the other part. The agreement as set out on oyer, after reciting, among other things, that there was about to be formed a joint-stock company, whereof the defendants had been chosen to act as directors for and on behalf of themselves and the other members and shareholders of the company; and that, as such directors, they had agreed with the plaintiffs to purchase their estate and interest in the East Down's mine, in the manor of Gooncarl, in Cornwall, proceeded as follows:

"And whereas the said directors (the defendants) do hereby agree with E. Y. Hancock and R. Vazie (the plaintiffs) to purchase their estate and interest in the said mine, comprising both the copper and copper ore, tin and tin ore, and all other metals and minerals whatever, under or by virtue of the said in part recited indenture and agreement, but subject as hereinafter mentioned, at the price or sum of £4,500, to be faid and payable out of the moneys to be raised by the said company at the times and in manner hereinafter mentioned; that is to say, the sum of £1,000 in part payment of the said purchase money, by the following installments: the sum of £300 at the time of executing these presents; the further sum of

£200 on or before the 22d day of August instant; and the further sum of £500, being the remainder of the above mentioned £1,000, on or before two months from the date hereof, being the 3d day of October next; and the balance of the said purchase money, that is to say, the sum of £3,500 within twelve months from the date of these presents, by four quarterly and equal payments or installments of £875 each, the first installment to be made on or before the 3d day of December next, being the period of two months from the intended completion of the payment of the deposit of £1,000, as aforesaid; provided always, and it is hereby expressly agreed by and between the several parties hereto, that in case there shall not have been received by the bankers of the said company, or by the directors for the time being, the deposits or installments due from the several shareholders, so as to enable the said directors to pay the balance due on account of the said purchase money at the times hereinbefore mentioned, then and in such case the said directors shall be allowed, and are hereby allowed, a further time to pay such balance until six months after the time or times when the said quarterly installments become due."

The covenant whereupon was: "And the said directors, parties hereto, do hereby promise and agree that out of the said payment so to be made by the subscribers or shareholders in the said company, they will pay or cause to be paid unto the said E. Y. Hancock and R. Vazie, the said purchase money or sum of £4,500, or so much thereof as shall remain due and payable, according to the terms and at the times before specified, subject, nevertheless, to the aforesaid provisos and conditions."

Breach: non-payment according to the covenant.

The defendants pleaded, among other matters:

1. That no money had been raised by the said company, or any payments made by the subscribers or shareholders, applicable to the payment of the said purchase money, except to the amount of £1,000, which £1,000 the defendants paid, and the plaintiffs received in satisfaction and discharge of the said sums of £300, £200 and £500, in the articles of agreement mentioned.

2. That there had not been received by the bankers of the

company, or by the directors for the time be'ng, the deposits or installments due from the several shareholders in the company, so as to enable the directors or the bankers to pay the balance of the purchase money in the declaration mentioned.

3. That no payments had been made by the subscribers or shareholders in the company, so that the moneys in the declaration alleged to be in arrear could be paid thereout.

To these pleas there was a general demurrer and joinder. WILDE, Serjt., who was to have argued in support of the demurrer, was stopped by the court, when

TADDY, Serjt., for the defendants, contended, that upon this agreement, they were not individually responsible as directors for debts incurred for the benefit of the whole company. By the language of the agreement it was expressly stipulated that the money was to be paid out of the funds raised by the subscriptions of the shareholders. This, therefore, could not be binding on the directors personally; they had given no positive promise to pay, but only on condition that the money should be raised by the subscriptions of others. In cases of bills of exchange and promissory notes it had been held that a party was not personally responsible for the payment of a bill drawn on particular funds: Dawkes v. Delorane, 3 Wils. 207; Jenny v. Herle, Ld. Raym. 1361. In the present case there was no unconditional promise or agreement to pay, and it was improbable that any persons would render themselves personally responsible for a debt from which they had no probability of ever receiving any benefit.

BEST, J.-I think the directors are clearly liable on this deed. The cases which have been cited do not apply, having merely decided that instruments ordering a sum to be paid out of a particular fund are not negotiable as bills of exchange or promissory notes, but looking at the whole of this deed, which must be taken most unfavorably against the covenantors, there can be no doubt that the defendants have rendered themselves personally liable. The deed states that £200 is to be paid at the time of executing those presents; £300 on the 22d of Angust; £500 in two months; and £3,500 at the end of twelve months; provided, that the directors shall be allowed six

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