"In all cases hereafter commenced by attachment in which the truth of the affidavit for attachment or of any material allegation therein contained shall be denied, and the issue thus formed shall upon the trial be found for the defendant, the attachment shall be dismissed, and all property rights, effects and credits held or affected thereby or thereunder shall be released and discharged from the operation thereof, but the dismissal of the attachment shall not abate the suit, but the same shall proceed as in ordinary cases: " Id. 143, sec. 38. This statute removes all doubt as to the mode of procedure on matured money demands; a common-law action may be commenced, attended with common-law pleadings and practice; and, simultaneously, proceedings by attachment auxiliary thereto may be instituted and attended with statutory pleadings. If, on trial of the issues as to the grounds of the attachment alleged in the affidavit a verdict is rendered for the defendant, the attachment is dissolved, but the action at law proceeds to final judgment. But what should be the mode of procedure in case of an attachment on demands not due? The only provision of statute on this question is as follows: "An attachment may be issued on a demand not yet due in any case where an attachment is authorized in the same manner as upon demands already due": Id. 143, sec. 37, subd. 3. All the other provisions of the statute on the subject of attachment relate to demands due at the institution of the proceedings. Can this statute, thus injected into attachment proceedings, be construed as authorizing by implication an action at law to be commenced before demands are due for the purpose of obtaining judgment thereon after they become due? The statute is silent as to the mode of procedure in a contingency of this kind. Attachment proceedings being in derogation of the common law, must be construed strictly; nothing can be inferred. If an action be commenced on demands not due, when should the defendant be cited to appear and plead to the declaration? It cannot be inferred from this brief statute that he must interpose his defence, if he has any, before he can be called on to pay the demand. There being no statute regulations on the subject, this court, no doubt, has authority to prescribe, by rule, what the practice may be, so as to give effect to attachments covering demands not due, without in the least changing the practice in actions at law to recover judgment on the same demands. The sole object of an attachment is to create a prior lien on the property of the attachment debtor as security on any judgment that may thereafter be obtained against him on the demands covered by the attachment. When this extraordinary remedy is resorted to covering demands not due, and especially where long credits are given, and the grounds of the attachment are traversed, a speedy determination of that issue becomes of the greatest importance; but it is evident that the main issue on the indebtedness cannot be raised, nor any defense interposed until the maturity of the demand sued on, except to show that no such demand exists on which an attachment will lie. Under our common-law pleadings and practice, the only consistent mode of procedure in cases of this kind would be to treat the attachment proceedings on debts not due as separate and distinct from any action at law to recover judgment thereon, and to go no further than to create an attachment lien in advance of the commencement of such action; the writ of attachment to contain a citation to the defendant to appear and answer the affidavit, the issues, if any, thus raised in the attachment proceedings to be speedily tried and the attachment lien dissolved or continued, according to the verdict of the jury for or against the defendant; if sustained, the attachment to remain a subsisting lien on the property of the debtor, and upon the maturity of the demand a declaration to be filed and the defendant cited to plead thereto; if the plaintiff recover judgment, then a writ of venditione exponas to be issued for the sale of the property attached, and the proceeds applied to the satisfaction of the judgment. The record in this case discloses the fact that, in addition to the affidavit for an attachment covering demands not due, a commonlaw declaration was at the same time filed containing a single count for goods, wares and merchandise sold and delivered, etc., and a promise on the part of the defendant to pay on demand. The defendant pleaded that he did not so promise. On the issue thus raised the parties went to trial, resulting in a verdict and judgment for the plaintiffs. The commencement of the action was the plaintiffs' demand for payment; and, if the count in the declaration were true, the demand at once became due and payable. But the plaintiffs on the trial admitted that the demand at the time mentioned in the declaration was not due and payable, and did not become due for some time thereafter, under the express contract of sale and delivery of the goods. This was conclusive upon the plaintiffs, and left them without any evidence to support their count in the declaration. The count was not true, and the plea of non assumpsit was sustained by the evidence. As to the attachment, the indebtedness alleged in the affidavit does not correspond with that specified in the declaration. In the affidavit it consists of two demands, due at different specified future dates, while the declaration is upon a single demand due and payable on demand. The plea of the declaration of non assumpsit does not conclude to the country, and technically no issue was tendered thereby. The parties having appeared generally in all the proceedings in the court below, and as irregularities have been committed on either side, we are of the opinion, not only that the judgment below ought to be reversed, but that the cause should also be remanded to the court below, with directions to grant leave to the plaintiffs to file a new declaration in accordance with this opinion, and thereupon to proceed by due course of law and practice to final judgment. And it is so ordered. BELL, J., concurred. SUPREME COURT OF UTAH. THOMPSON V. JACOBS ET AL. Filed February 24, 1883. WORK ON MINING CLAIM, WHEN MAY BE DONE.-Prior to the act of congress of May 10, 1872, there was no law of congress requiring annual labor to be done on mining claims in order to hold them. When that act speaks of the amount of work to be performed or improvements to be made each year, it means each year from and after its passage. Conse quently, work done on a mining claim prior to May 10, 1872, cannot be considered the first, or any part of the first, annual expenditure required by that act, and the several amendments thereto. APPEAL from a judgment of the second district court, entered in favor of the plaintiff. The opinion states the facts. P. Denny and J. G. Sutherland, for the appellants. EMERSON, J. The respondent brought ejectment against the appellants to recover a mining claim called by him the Forest Queen. By consent the case was tried by the court without a jury. Upon the findings of fact and conclusions of law found and filed by the court, a judgment was entered in favor of the respondent, from which the appellants appeal, claiming that upon the facts found, they are entitled to judgment. The record in the case was not printed, but the briefs of counsel contain all the findings necessary for the purpose of this review, and are as follows: 1. That on the first day of January, 1875, Edward W. Thompson, the plaintiff, entered upon a piece of ground in the Lincoln mining district, in the county of Beaver and territory of Utah, and located the Forest Queen mine, the premises described and claimed by the plaintiff in his complaint, by erecting a monument of stakes and stones at each corner of the location, and one at each end of the center line, and also a center monument, and placed on each a сору of the location notice, and marked each monument so as to indicate which or what monument it was, and within twenty days thereafter filed said notice for record in the office of the recorder of the Lincoln mining district, as required by the by-laws of said mining district. 7. That in each of the years 1880 and 1881, the defendants caused at least one hundred dollars' worth of annual work to be done on the mine. 8. That upon the twenty-third day of March, 1871, the Grundy claim or lode was located; that on the twenty-ninth day of May, 1871, the Hudson claim or lode was located; on the twenty-eighth day of August, 1871, the Elizabeth claim or lode was located; and the location notices of these three claims were filed for record within the time, and were recorded in the time required by the bylaws of the Lincoln mining district, and that said locations were valid. 9. That the Homestake mine includes within its limits, and is a re-location of the Forest Queen, and the Forest Queen includes within its limits the Grundy, Hudson and Elizabeth lodes or claims. 10. That upon the Elizabeth lode the work and labor required to be done, in order to hold and secure a claim or lode by or under the by-laws of the Lincoln mining district within sixty days from and after the filing of the location notice for record, to wit, "for each claim of two hundred feet there shall be sunk a shaft or tunnel not less than two feet in depth; said shaft shall contain not less than twenty square feet, surface measurement," was done. 11. That within sixty days of the time of filing the location notices of the Grundy and Hudson lodes for record, the work and labor required to be performed thereon by the by-laws as aforesaid, was done upon each of said lodes or claims by the locators thereof, or their assignees. 12. That the labor performed and improvements made upon the Grundy by its locators or their assigns after the location thereof, and before the first day of January, 1875, were worth and were of the value of two hundred dollars. 13. That the labor performed and the improvements made upon the Hudson by the locators thereof and their assigns, after the location thereof and before the first day of January, 1875, were worth and of the value of one hundred and fifty dollars. 14. That the labor performed and improvements made on the Elizabeth claim by the locators thereof and their assigns, after the location thereof and before the first day of January, 1875, was of the value of fifty dollars. 15. That the Grundy, Hudson and Elizabeth lodes or ledges were each of one thousand feet in length along the vein. 16. That there was not upon either the Grundy, Hudson, or Elizabeth lodes or ledges ten dollars' worth of labor performed or improvements made for each one hundred feet in length of said respective lodes or claims, after the tenth day of May, 1872, and before the first day of January, 1875, as required by section. 2324 of the revised statutes of the United States (2d edition of 1878), and the act of congress, approved June 6th, 1874, entitled "An act to promote the development of the mining resources of the United States," passed May 10th, 1872, and that the original locators of the Grundy, Hudson and Elizabeth lodes, or their heirs, assigns or legal representatives, did not on the first day of January, 1875, or at any time for several months prior thereto, do, or try to do, any work or labor upon either of said lodes or ledges. 17. That the discovery shaft and center monuments of both the Homestake and Forest Queen mines or locations were upon the Grundy claim. The only question upon this appeal is whether work done on a mining claim prior to May 10th, 1872, can be considered the first, or any part of the first, annual expenditure required by that act and the several amendments thereto. Prior to the act of May 10th, 1872, there was no law of congress requiring annual labor to be done on mining claims in order to hold them. When, therefore, that act speaks of the amount of work to be performed or improvements made each year, it means each year from and after its passage. By the several amendments of March 1st, 1873, and June 6th, 1874, the time for making the first annual expenditure under the act of May 10th, 1872, was extended to January 1st, 1875. The required amount of expenditure in labor or improvements not having been expended on either of the three mining claims mentioned in the findings at any time between the tenth day of May, 1872, and January 1st, 1875, they became relocatable on the lastnamed day. The judgment of the court below is affirmed. PARLEY'S PARK SILVER MINING COMPANY v. KERR. Filed February 24, 1883. VOIDABLE PATENT TO MINING CLAIM, ATTACK ON.-A patent from the United States to a mining claim may be avoided in equity for fraud, mistake or misrepresentation practiced upon the government. The validity of such patent, however, cannot be questioned unless the facts constituting the fraud, mistake or misrepresentation are stated in the findings. Whether the United States government is a necessary party to an action to set aside a patent on such grounds, quere. APPEAL from a judgment of the first district court, entered in favor of defendants. The complaint in this action contains the following allegations: That the plaintiff is a New York corporation; that it is the owner, subject only to the paramount title of the United States, and in the possession of the Central and Lady of the Lake mining claims, particularly describing them by metes and bounds; that the defendant claims some interest or estate in said premises, or some part thereof, adverse to said plaintiff; but said claim of said defendant, as said plaintiff avers on information and belief, is without any legal or equitable foundation, and void; that the same is a cloud on said plaintiff's title, and an injury and damage to said plaintiff; that said plaintiff is greatly embarrassed in the use and disposition of its said mining claim, and they are greatly depreciated in value by reason of said adverse claim; that said defendant has not any estate, right, title, or interest whatever in or to said land and premises or any part thereof. The complaint concludes with the following prayer: 1. That the defendant may be required to set forth the nature of his claim, and that all adverse claims of the defendant may be determined by a decree of this court. |