Pioche daily record. [volume] (Pioche, Nev.) 1872-1876, 1873-04-08

thorities will it be pretended that we
may not investigate and destroy adverse
titles fraudulsntly obtained through our
agents? In our complaint we allege
seizin in fee, and We have the right to
sustain it before the jury. There is
somewhere remedy against an agent
bartering away the rights of his EN-
ployer. 1t appears that Mr.. Perley was
attorney for and Colonel Lightner super
intendent of the Raymond & Ely
Company, and Easterlan, Tardos
and another, employees; and while
acting as agents and representa-
tives of that company, they lay
claim in their own right to some of its
most valuable property. ~ New York,
p. 270., quoted.) This was an action in
ejectment, in which the plaintiff sets up
the alleged pretended title of defendant.
The question arose in that case, as 1t has
arisen in this, whether the plaintiff could
attack, while asserting tes-simple III |
himself, the fraudulent title OF defend
ant. The decision was IN the affirma-
tive. Now, an objection to evidence is
governed by the same rule rs an objec-
ton to the pleading itself That an
equitable claim can be urged against alegal
claim is we'll established rule. Breads
from Herman, p 1861 Here defendant
is allowed to interpose an equitable title
against legal title in plaintiff. We
have and assert in this case both the legal
and equitable title against defendant;
but if the equitable title were with them
we would concede their right to assert
| it against our legal claim. Breads from
IA New York, p 511.) Here it is
ruled that where two causes of action
are set up, one legal and the other equit-
able, both arising out of the same trans
action, they may be joined in one and
the same action, the Court being unani-
nous in this ruling. Reads % CAL, p.
277.) Here, too, junction of legal and
equitable grounds of complaint in the
same action is fully sustained. Breads
II CAL, p. 4S7.) attorney speaks of
the sameness of the Nevada and Califor-
MIA statutes) This is q case in which it
is held, also, that different causes of ac-
ton may be joined in the same com
plant when growing out of the same
transaction. This transaction is obtain
ing possession OF property owned by the
plaintiffs, and they would have us spend
one month trying the law side Of the
case, and another trying the equity side,
speedier remedy of single action.
As regards the defendants waiver of
argument on the question pending-the
admissibility of evidence proving the
fraudulency of defendants title--au-
thority was read to show that defend
ants remedy, under the statute, was in
demurrer to the complaint. Reads p.
1853, 23d Pickering; also I'd Johnston, p.
| 90 hall hat oh N
jurisdiction could only have been made
in the way suggested-by demurrer to
the complaint. We have already spent
three weeks in this litigation, and now,
at this late day, an objection is urged to
the face of our complaint, which, with
| their eyes wide open, they have regular
ly answered.
, He concluded by saying equity will not
, allow error from one who is acting in q
/; fiduciary capacity, and law built upon
I; that principle is universally admitted
/ Equity and law alike say an agent shall
, not fraudulently make way with the
property in his hands which belongs to &
| thousand owners. Reads number o.
! authorities, showing that an agent shall
, not use his knowledge or position in any
) way to secure to his private benefit the
I interests of his employer. II there were
: no fraud in the Hermes location, nj
| charge of fraud, it could not be mad
: good to the locators. 1t is held author
ity read that no one can become u pur
e chaser who has a duty to perform incon
g sstent with his becoming purchaser
n The principle exactly applies to this case
t by using the word locator for purchaser
1t matters not whether wrong is intend
ed; the rule does not contemplate rem
i edy for actual wrong but it is to proven
any possibility of wrong being commit
s ted 1t is the same principle which say
e the same individual shall not be bot
!, Judge and party in interest. How coul
Messrs. Perley x Rives, standing as tn
= representatives Of the Raymond Il FL
IS property, as the judges OF the sufhcienc
= of its titles, become themselves investe
d with interests therein averse to their EN-
d ployers' interests2 Breads p. go, lot
is Peters, U. s. Supreme Court.) Thi
IT was case on appeal in which title at
IS quired by an agent to Government Ian
., was set aside, it having been shown tina
d he was employed to secure the same Ian
for his principal when he located i'll hi
l. own name. The parties who are til
lie representatives Of the Raymond Il e.
mining property go on the ground an
p conclude the title is defective, and the
t say We will perfect the title in ourselves
" ] he cases are exactly parallel. Reads
r. number of authorities. Good titles al
Y; often treated as nulhty when reache
j. through fraud. They are declared voit
g. And in this case, the evidence of til
tiduciary character of the locators of th
IN Hermes mining ground in their relatio
,e to the plaintiffs in this action, bein
,e sufficient, the Judge and jury must col
ID slider their acts as not having been dor
at all. Reads from California reports
~ In this case it is said an agent shall no
r. if he discovers defect in his principal
r title, acquire the title to himself, direct
Y, or indirectly. 1t is not necessary,
Sc applying the rule, that the prncip
should have an equitable right to Il
r property-it is sufficient that he mere
w claims it. Equity will look with IL
IS same disfavor on titles thus acquired
any time after the acquisition as at Il
It, moment Of consummation. The adver
ar rights thus wrongfully and fraudent
nd interposed have alone prevented our a
le- quiring patent to our property ere thi
NJ under the United States Mining Act.
Here Judge Hardy, who has be,
ne very i'll for some days, was forced to I
tire on account Of exhaustion.
Judge Lake succeeded Judge Hard
saying that, in view Of the elaborate {
in gument and many authorities cited
ed now regretted they had not availed thel
es selves Of the full privileges Of the arg
id ment. He spoke for about an hor
b. evincing, as he usually does, profou
on knowledge of the elementary principl
OF law.
I'm Judges Mesick and Garber will Gle
ey the argument this morning.
le, " " m
ev BENEFIT To JOHN S. LINDSAY. Thu
lie. day night of this week is set apart fo