CASES IN THE SUPREME COURT ОР CALIFORNIA. HOUGH v. HUNT. [138 Cal. 142, 70 Pac. 1059.] MINING CLAIM-Watchman's Services as Work.-The employment of a person to live in a house on a mining claim, and take care of the property, such watching not being required, is not such work on the claim as will save it from forfeiture. (p. 18.) I. N. Thorne, James Farraher, James D. Fairchild, and Oliver P. Evans, for the appellants. L. F. Coburn, for the respondents. 143 TEMPLE, J. This is a contest for a mining claim located upon the public land of the United States. The plaintiffs had been in possession of a quartz mining location for several years. The ground had been previously worked as a placer claim by one Borland, who, after having made a lode location, sold and conveyed it to plaintiffs. They proceeded to work upon it, spending, as the court found, about one thousand dollars in the development of the mine. They sunk a shaft upon the supposed lode some twenty-five feet, put up a winze, etc., and built a shed over their shaft. In 1898, however, according to the findings, they performed only twenty-five dollars' worth of work toward working and developing the mine, and therefore early in January, 1899, 144 the defendants entered upon the mine and relocated it as vacant ground. The defendants do not claim that the mine had been abandoned, but solely that the plaintiffs had forfeited their rights by failure to do the requisite amount of Am. St. Rep., Vol. 94-2 (17) work in 1898. This is, therefore, no question of abandonment in this case, although plaintiffs seem inclined to discuss that matter. Whether the plaintiffs did one hundred dollars' worth of work in working or in developing their mine in 1898 is the only question of importance in the case. The court found that plaintiffs did not do to exceed twentyfive dollars' worth of work on the mine in 1898. The finding is abundantly supported by the evidence. The contention to the contrary depends entirely upon the fact that plaintiffs owned a house within the boundaries of the location and employed some one to live in it and paid such person forty-five dollars per month. It is claimed that such person at least took care of the property on the mine. It is not shown that he was employed to do anything of the kind; but if that had been shown the conclusion of the trial court is eminently sound, that such watching was not required and was not work on the mine. The cases must be rare in which it can justly be said that such money is expended in prospecting or working the mine. There may be cases where work has been temporarily suspended, and there are structures which are likely to be lost if not cared for, and it appears that the structures will be required when work is resumed, and that the parties do intend to resume work, in which money expended to preserve the structures will be on the same basis as money expended to create them anew. But this could not go on indefinitely. As soon as it should appear that this was done merely to comply with the law and to hold the property without any intent to make use of such structures within a reasonable period, such expenditure could not be said to have been made in work upon the mine. Much less could the mineowner bring picks, shovels and things of that kind, upon the mine, and have some one to watch them to prevent their being stolen, and have such cost of watching considered as work upon the mine. The act passed by our legislature in March, 1897, making further requirements in addition to those made by the act of Congress in regard to locating mining claims was repealed in 145 March, 1899, before the new discovery and amended location made by defendants in September, 1899. They were then required to comply only with the act of Congress upon the subject, which the findings plainly show they did. This was all prior to the time plaintiffs claim to have resumed work on the mine. That was in November, 1899. The alleged errors in regard to rulings upon evidence were all immaterial. If the evidence had been allowed, it might tend to prove that plaintiffs had not abandoned the mine. That they had not was taken for granted, and the fact was utterly immaterial. The judgment and order are affirmed. Henshaw and McFarland, JJ., concurred. The Services of a Watchman in looking after mining property may, under some circumstances, constitute work upon the claim sufficient to hold it: See the monographic note McKay v. McDougall, 87 Am. St. Rep. 411. PULLEN v. PLACER COUNTY BANK. [138 Cal. 169, 71 Pac. 83.] GIFT.-There Can be no Gift without an intention to give, and a delivery, actual or constructive, of the thing given. (pp. 20, 21.) GIFT OF CHECK-To be Presented After Drawer's Death.-If a check is drawn without consideration, and delivered to the paye with the request not to present it until after the drawer's death, the gift is not complete; and if the bank, with knowledge of the drawer's death, pays the check, it is liable for the amount thereof to the decedent's estate. (pp. 21, 25.) CHECK-Rigi.t to the Fund.-When a check is given the money does not thereby become the property of the payee, nor is it placed beyond the control of the depositor. (p. 22.) CHECK-As Assignment of Fund.-A check does not operate of itself before presentation, as an assignment to the payce of the money for which it is drawn. (p. 22.) CHECK-Obligation of Bank to Payee.—The bank upon which a check is drawn has no contract with the payee, and is under no legal obligation to him, and its refusal to pay the check does not give him a right of action against it. (p. 23.) EQUITABLE ASSIGNMENT of Chose.-There can be no equitable assignment of a chose in action for which there is a want of consideration. (p. 25.) GIFT.-Equity Will not Lend its Aid to Perfect a gift that is incomplete. (p. 25.) F. P. Tuttle, Lee E. Wallace, Charles Tuttle, and Stoney, Rouleau & Stoney, for the appellants. John W. Fulweiler, for the respondent. 169 HARRISON, J. This cause was submitted to the superior court upon an agreed statement showing the following facts, viz.: In November, 1897, John W. Clarke, Sr., had on deposit with the defendant the sum of twelve hundred dollars, which remained on such deposit until after his death. During that month, for the purpose of making a gift of one thousand dollars to his son, John W. Clarke, Jr., he drew a check upon the defendant for that amount of money, and delivered it to his son, saying that he could get the money from the bank; but, after delivering it to him, stated that he wished he would not present it until after his death. The son complied with his wish, and did not present the check until the morning after his father's death. He died September 29, 1898, and on September 30th the son presented the check to the bank, and it was paid. The bank had, however, been informed of the death of the father before the check was presented for payment. The present 170 action is brought to recover from the bank the amount of the check as money deposited with it by the deceased, and held on deposit at the time of his death. The superior court rendered judgment in favor of the defendant, and the plaintiffs have appealed. The question presented upon the appeal is whether, under the above facts, the intended gift of the father to the son had become complete before his death, or whether it was merely inchoate. If the transaction between them constituted a completed gift, the money represented by the check belonged to the son, and the bank was justified in paying it to him, while, on the other hand, if the gift had not been perfected, but was incomplete at the time of his death, the money in the bank belonged to his estate and descended to his heirs, and its payment by the bank was unauthorized. Section 1146 of the Civil Code defines a gift to be "a transfer of personal property made voluntarily and without consideration"; and under section 1147 a verbal gift is invalid unless accompanied by a delivery to the donee of the thing given, if it is capable of delivery, or of the means of obtaining its possession and control. "There can be no gift without an intention to give and a delivery, either actual or constructive, of the thing given. There must be both a purpose to give and the execution of this purpose. The purpose must be expressed -either orally or in writing-and it must be executed by the actual delivery to the donee of the thing given, or of the means of getting possession and enjoyment thereof. It is the |