Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1882-05-17

tnere Is much to convince me that work
Will be discontinued in the disputed
ground in case of supersedeas. 1 must
assume then that, as the security is now
fixed, so it will remain.
Inc next question that requires consid-
Grafton is whether 1 can and should take
into account merely the ores actually in
sight, or, in addition, may and should in
clude, as a part of the basis of nv calcu-
lations, reasonable and fair probabilities
OF the existence of ore deposits other than
those now known in fixing the amount of
good and sufficient security for dam
ages and costs. In my opinion, to do JUS
tee, l must include the element of reason
able probability, and that, in law, such ia
my duty. l recognize the fact, in the out
set, maj this conclusion brings difficulties
with 1t, and that the proper sum to be set
Gown as good and sufficient security"
In this regard, will at last be somewhat
uncertain. But these circumstances do
not alter the case.
AS to the ore in sight a reasonable dis
erection must be exercised in determining
the mount and value; because the evil
dence upon both points is painfully CON
nictlng, and the estimates of the respect
I've parties are widely different. 1t is con-
ceded That some ore bodies contain a great
amount OF waste, while in others but little
is found. Ore body CD" may contain
much or little waste, still it is admitted to
be my duty to balance the testimony upon
these questions as best I can. Why is it
not incumbent upon me, then, to conclude
from the great mass of testimony upon
the point, whether or not it reasonably ap-
pears that there are other ore bodies in
the ground in dispute which, during the
tendency of the writ of error, would be
exposed and worked if there should not be
a supersedeas? The statute declares that
the security must be sufficient to cover all
damages and costs which the Albion Com
pany will suffer and may recover by rea-
son OF the writ, if the judgment of this
Court is affirmed.
If other ore bodies exist, although their
present whereabouts are now unknown,
which, but for the supersedeas, the Albion
Company might and would develop and
utilize, the damage will be just as great as
it would be if they were in sight. The
bare possibility of finding ore in unde-
veloped ground, without evidence of a
reasonable probability of its existence,
would not justify me IN requiring security
to cover such possibility. But on the
other hand, l can find no justification in
refusing to require security sufficient to
cover reasonable probabilities.
Ii by some test now unknown, it were
possible to ascertain with reasonable, but
not infallible certainty, as to the exist
ence or non-existence of ore bodies in the
ground in dispute, would it be denied that,
in this proceeding, evidence showing the
result of such test would be received and
considered? If science or experience
shows, as a general rule, that in a certain
locality one result follows certain con-
ditions, why should not evidence of the
existence or non-existence of such con-
ditions be admitted and acted upon with
other facts in ascertaining whether or not,
in the case in hand, it is reasonably GER
tain that the result will accord with the
general rule?
Suppose the property in dispute in this
case was timber land; that it would be
very valuable if a certain railroad should
be built, but otherwise of little value
Can it be doubted that evidence establish
ing with reasonable certainty That the
road would be completed long before a de-
cision could be had in the Supreme Court
ought to be received and considered i'm
portant in estimating the damages that
plaintiff would sustain True, in such
case, it might be argued that the compile
ton of the road would be a change of cir
cumstances which, under the rule laid
down in Jerome vs.. McCarter, 81 Wall,
81, would justify the Supreme Court in re-
quiring additional security if the amount
first fixed was insufficient. But that fact
does not initiate against my conclusion in
this case, because here, in all reason, there
will be no change of circumstances if there
is q supersedeas. Besides, if I interpret
Jerome vs.. McCarter correctly, it is the
duty of the Chief Justice TO act upon ex-
listing facts, although they do not amount
to absolute demonstration beyond the pos
sibility OF doubt. 1t is my duty to re.
they are presented, and the Supreme Court
Of the United States will presume that /
so acted.
II the object OF this proceeding was to
establish q definite amount which the
Richmond Company should actually pay
the Albion Company as damages for de-
lay, Ia case Of affirmance, it might and
should be urged that EVIDENCE Of the
probable existence Of other ore bodies in
the ground in questirQ ought to be con-
sidered with great caution, but even in
hat case it would, in my opinion, be ad-
missible, and in arriving at a proper re-
suit it should be given weight according to
the facts and circumstances proven.
But in fixing the amount Of security on
appeal or in error it was not expected or
intended that 1t should be established
with the accuracy Of a verdict or judg-
ment. 1t should be ample to protect the
respondent in error against all damages
which it ia reasonable to believe will re-
suit from the writ. In Catlett vs.. Bro
damages is here used, not as descriptive
of the nature of the claim upon which the
original Judgment is founded, but as de-
s~criptive of the indemnity which the de-
PENDANT is entitled to, if judgment is
affirmed. Whatever losses he may sustain
by the judgments not being satisfied
and paid, after the affirmance, these are
the damages which he has sustained, and
for which the bond ought to give good and
security. Upon any suit brought
such bond it follows, OF course, that
the obligors are at liberty to show that no
damages have been sustained or partial
damages only; and for such amount only
is the obligee entitled to judgment"
Under the statute and the rule Of the
Supreme Court above quoted, as we'll as
the decided cases., I have no doubt that
the amount of security in this case, if the
writ is to operate as a supersedeas, is left
to my legal discretion.
In jerome vs.. McCarter, supra, IL l5
said:- "This is a suit on a mortgage, and,
therefore, under this rule (29), a case in
which the Judge who signs the citation is
called upon to determine what amount
of security will be sufficient to secure the
amount to be recovered for the use and
detention of the property and the costs of
the suit, and just damages for the delay
and costs and interest on the appeal. All
this. by the rule. is left to his discretion.
In Black VS.. Zacharie g How, 1850 it was
held that in such a case the Justice taking
the security was the sole and exclusive
Judge OF what 1t should be. Since then.
in Rubber Company vs. Goodyear (G
WALL, 1867 and French vs.. Shoemak er az
WALL. 94), remarks have been made by
Judges announcing the opinion Of the
Court, which, if considered by themselves,
A i AL III. 1:1~ks~n