Arizona weekly journal-miner., 1898-10-26
the alleration of the comnlaint.

ascertaining who were the stock
 holders. and who would be entitled
 to recover by this suit, for Wiser
 and one or two others sued for them
 selves and for all others in like
 manner situated. So it would be-
 come necessary to find out who else
 would be benefited by the suit be-
 sides themselves. That report was
 made and shows a large number of
 people bought stock.
 In the trial of the cause before the
 former judge, there was a vast
 amount of evidence taken by deposi-
 tion and also orally before the court,
 as to the incentive of those who pur-
 chased stock. The unanimous evi dence of all those who were exam
 ined led the court to believe, as l
 infer from. the findings, that they
 were led to buy stock from the pros
 pectus alone, it nowhere appearing | in the evidence that Lawler and
 Wells had personally ever made any
 representations as to the title of the
 mines; and indeed it is not pretend
 ed that any stOckholder at the time
 he purchased stock, ever heard of
 Lawler and Wells, unless it might
 have been in one or two instances
 which l do not now recall. But the
 body of those who gave evidence as
 to why they purchased stock, based
 it upon the prospectus alone.
 This court, by its former judge,
 entered an interlocutOry decree, in
 September, 1897, and in that decree Fit made some findings of fact and
 conclusions of law upon which the
 decree was based. In that, it was
 found that Lawler and Wells were
 not guilty of any actual fraud, they
 were not actively participators in
 the getting up of the prospectus,
 but the court did find that they were
 guilty of constructive fraud in stand
 ing by and not speaking at the time
 they should have spoken, and also
 in allowing the grantee and his as-
 signs to be in possession of the mine;
 and from that, the court reasoned
 that they, being guilty of construct
 i've fraud, a decree might properly
 be entered against them to the ex-
 tent of fastening a lien upon the
 mines which had been sold, for the
 amount of money that had been ob-
 tained by them from the purchase
 of stock.
 This court, by it's present judge,
 in July of the present year, dealing
 with the Masters report and with
 the interlocutory decree, found that certain amount of money, the exact
 amount is not now in my memory,
 had been so obtained, and upon that
 finding based upon the einterlocutory
 decree, and upon the Masters re-
 port, entered final decree against
 LAwler and Wells, to the extent of $lS0, 900 and some odd dollars, fast ening a lien upon the property which
 had been conveyed by them by deed in escrow to Cowland, and after
 wards held by his assigns, and which afterwards reverted to them upon the failure of the full payment of the purchase price.
 Upon this there was a motion for new trial, and then for the first time, the present judge of the court had an opportunity of hearing the evidence, hearing the pleadings, and l allsthe matters upon which the de- | creeS had been based. The matter | was extensively gone into, all the 1 evidence presented and extensive l and full arguments were made. | Upon that occasion the counsel for | complainants stated that they were not asking for the maintenance of the decree upon the theory of actual fraud for that had been found against them by the court. There was some argument upon constructive fraud and its application, the application of the doctrines of constructive fraud to the evidence in the case. But they mainly insisted that the decree should be maintained upon the doctrine of estoppel. That is, that Lawler and Wells had permit ted the prospectus to be issued and widely circulated when they knew just what it contained, when they knew the purpose of it's preparation and circulation and when they knew that the money they were receiving was received through the source of the sale of stock. That was the chiefly, of the plaintiffs 10 sustain the decree.
 The court, after hearing all this, and examining thoroughly the plead lngs, reviewing the evidence, is un- able to agree with the counsel for the plaintiffs, in any view of the argument of the decree, either one. upon which they may rest, whether ! 1t be for constructive fraud. or for ! estoppel. We must not forget the l iact that the complaint was based c upon the doctrine of actual fraud, ust such acts as would have enabled plaintiffs to have gone into court and lsked for damages for actual fraud. When the trial court found there vas no actual fraud, the substance \ # the complaint was disproven. or ailed to be established for the lack 't proof before the findings; but when the finding was made that n here was no actual fraud, it then . tood as the complaint disproven.
 Now, how after that the ground ould be shifted so as to obtain a a lecree for constructive fraud, or to e maintain a decree upon the doctrine I estoppel, l have not been able to q lscover, and cannot reconcile the E ecree with the findings or with the ?. rgument that has been made.
 In constructive fraud there is Iways the element of fiduciarv rela- oi on, the relation between the parties s' eng ot such nature as imposes a al uty because of the relation between le parties for one of them to pro- of ct the other. There was no rela- P on between these stockholders and b. aWler and Wells. All this tran pl 'ction Of selling stock was con- th lcted through the eastern states at Id England, probably in Scotland, ell It Tn all regions very remote from in e home and presence of Lawler T, "a wells. They never placed them fo Ives Tn such a situation as would ce thorize the Seven Stars Gold Min. re, g Company to represent that they. Tc Seven Stars Gold Mining Com ny, had the title to the property. le mere fact of giving to Cowland
 his assigns permission to enter on the mines and work them and Su veIop them could not be con- of