The weekly Alaska citizen., 1918-02-04

for himself more than two placer mining claims in any calendar month; Provided, That one or both of such locations may be included in an association claim" Referring to the above act, the defendant on cross-examination testified as follows: |:
 "Mr. Tozier: Q. You were quite familiar with the mining law at that time, were you not? A. To some extent.
 0. We'll, will you tell the Court why 1t Is that your name was on the Leitrim claim, the Silver Dol lar claim, and the Gold Dollar claim |-three claims, in one month.
 A. It seems to have been.
 0. So that Curing the month of November, 1914, you attempted to locate three claims in that mining district and division, did you not?
 A. The fact is there were three claims staked.
 0. Did you or did you not attempt to do SO?
 A. The fact was that there were three claims staked. That is the answer"
 If the plaintiff, Sherry and Bell gave truthful testimony about stalk ing the Gold Dollar on the 3Oth of November, then there would be no violation of Sec. 129c of the Con- piled Laws. If the defendants testi- mony is true, and the Gold Dollar was staked in the name of the de- fendant and Bell, while the Silver Dollar was staked in plaintiffs and defendants names, then the defend ant was plainly trying either to violate or evade the positive provisions of the law. It would be doing the defend ant an injustice to intimate that he was unfamiliar with the provisions of the law relative to the staking of placer mining claims.
 AShuoAI oIICAupIS IO SuOW luCOu- sistency on the part of the plaintiff because in May, 1915, as soon as plaintiff claims he discovered there had been a change of names on stake No. 1. plaintiff failed to call this change of names to defendants attention. Plaintiffs course of action seems to have been quite proper un- der the circumstances.
 To believe the testimony of the plaintiff is to believe what is reason able, logical and probable. It is con- sistent with what the average pros- pectors would do under the same circumstances. The plaintiff is also entitled to that full measure of con- sideration, which since the establish ment of courts, has been accorded to the witness who by his demeanor and manner of giving his testimony convinces the Court of the truthful ness of his statements.
 In the case of Moore vs. Craw- ford, 130 U. s. 128, Chief Justice Fuller quotes the following from 1 Story Eq. Jur. Sec. 1S7:
 Fraud, indeed, in the sense of court of equity properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another. And courts of equity will not only interfere in cases of fraud to set aside acts done, but they will also, if acts have been by fraud prevented from being done by the parties, interfere and treat the case exactly as if the acts had been done"
 See also Lockhard vs. Leeds, 195 U. s. 427, and Stevens vs. Grand Central Mining Co.,, 133 Fed. 2S.
 By fair preponderance of the evidence the plaintiff has proved that after the time when on the 30th day of November, 1914, plaintiff es- tablished stake No. 1 of the Gold Dollar claim, writing thereon his own name and the name of D. H. Cas- caden as locators, witnessed by J. J. Sherry and Albert Bell, and prior to May 1, 1915, the defendant erased or cut or caused to be erased or cut from said stake the name of Pat O'Connor as one of said locators and substituted therefor the name of Albert Bell. It therefore follows that the plaintiff is entitled to re ceive from he defendant deed fol an undivided one-half interest in and to the Gold Dollar Association placer mining claim. The plaintiff is also entitled to an accounting from the defendant for all gold and gold dust extracted from said claim; and, in the opinion of the Court, forty-five days is a reasonable time in which to make such an accounting.
 Let findings of fact, conclusions of law, judgment and decree in accord ance with the views herein expressed be prepared and submitted accord