money for the assignment, he did so without the consent of his client, and that he holds the title as an involuntary trustee for his client, with at most a lien for the sum expended in procuring the transfer. The question then is whether another judgment creditor of the client can subject his equitable estate in the land to the payment of his judgment. It is held that he cannot, that the right of the client to enforce his equity against his trustee is a purely personal right, which he may waive if he chooses so to do, and that his valuable interest in the land is at his option placed beyond the reach of an honest creditor. From this conclusion I dissent. I think, on the contrary, that the creditor has the right to proceed in his own behalf as well against this estate as against any other valuable property of his debtor. (137 Cal. 165) DOLJANIN v. AUSTRIAN BENEV. SOC. 1. Under the constitution of a society providing, on preference of charges against a member, for trial by a committee, report of its verdict, and the pronouncing of judgment on the verdict, and fixing of penalty by the society, two-thirds of the ballots cast being necessary for expulsion, a decree of a court adjudging a judgment of expulsion void, because it merely showed that a majority voted for expulsion, does not affect the verdict of the committee, or prevent the society from thereafter voting thereon for expulsion. 2. Provision of the constitution of a society that a two-thirds vote shall be necessary for expulsion, and that a ballot shall not be reconsidered, does not prevent a second ballot, on a judgment of expulsion being declared void by a court, because showing merely that a majority voted therefor. 3. Under the constitution of a society providing for notice to a member only of preference of a charge, and of the verdict of the committee, and declaring that, in the absence of exceptions thereto in two weeks, the society shall ballot on the penalty, he not to be present during the ballot, in the absence of exceptions by him, no further notice to him is necessary. Commissioners' decision. Department 2. Appeal from superior court, Santa Clara county; A. L. Rhodes, Judge. Action by Nick Doljanin against the Austrian Benevolent Society of San Jose. Judgment for defendant. Plaintiff appeals. Affirmed. H. A. Gabriel and Jas. H. Campbell, for appellant. Chas. Clark and Jas. R. Lowe, for respondent. GRAY, C. The plaintiff appeals from a judgment against him in an action brought to obtain a writ of mandate compelling defendant to reinstate plaintiff into the full status of membership in the respondent society. The findings show that the appellant was duly tried before a trial committee of respondent upon charges duly preferred, and after notice duly given him, and that on sald trial the committee found appellant guilty of several offenses against the laws of said society, and recommended that he be expelled from the same. Said committee duly filed their report, findings, and recommendations, together with a transcript of the evidence taken before it, with the society on March 14, 1899. The plaintiff filed no exceptions to said report, findings, or recommendations within the time allowed by the laws of said society, or at all; and thereafter, on April 11, 1899, the society at a regular meeting took up and considered the said report, and took a ballot thereon, and the result of the ballot was then entered by the secretary of the society in its minutes, to the effect that the ballots of a majority of the members of the society then present was in favor of the expulsion of appellant from the society, and the appellant was thereupon treated by the society as expelled. All these proceedings were regular, and in accordance with the laws of the society, up to the vote of expulsion. The constitution of the society required a two-thirds affirmative vote of all the members present in order to expel a member. After this action of the society, appellant applied to the supe rior court for a writ of mandate to compel the society to reinstate him to membership, and upon this application the court, after a hearing, "ordered, adjudged, and decreed that the vote of said society purporting to expel the petitioner from the society was void, and that the society immediately reinstate the pe titioner to membership in said society, to the extent that such membership existed immediately prior to such attempted expulsion.” The findings further state that thereafter, and "on June 27, 1899, a meeting of said society was duly and regularly held; that all the officers and a quorum of the members of the society were present; that the society, in pursuance of, and in accordance with, said judgment, set aside the order and the entry on the minutes of said society, made on the 11th day of April, 1899, purporting to expel said petitioner as a member of said society, and then and there reinstated said petitioner as a member of said society as of the time immediately preceding said alleged expulsion on the 11th day of April, 1899; that thereupon said society proceeded to consider the said report of said trial committee that found that the said charges against said petitioner were true, and recommending his expulsion from said society; that thereupon a 'paper ballot' was duly had and taken by the members of said society then present, upon the question of sustaining the said report and recommendations, and expelling said petitioner from said society, and that more than twothirds of the ballots of said members of said society were then cast in favor of sustaining said report and recommendation, and of expelling said petitioner from said society; that the result of said vote and ballot was then accordingly announced by the president of the society, and the same, and the proceedings of the society in said matter, were duly entered in the minutes of the society; that thereby said petitioner was legally expelled from said society, and the secretary of the society was then ordered by the society to notify the petitioner of his expulsion, as aforesaid, from the society, and the notice was given accordingly." As conclusions of law the trial court finds that said "Nick Doljanin was, by regular proceedings, duly and legally expelled from said Austrian Benevolent Society of San Jose, and is not entitled to be reinstated as a member of said society." The constitution of the society, after providing for the procedure for the preferment of charges, notice to the offending member, the selection of the trial committee, the trial itself, the report and verdict of the committee, notice thereof, and exceptions thereto by the accused, provides further: If no exceptions are filed within two weeks, the society shall proceed to pronounce judgment upon the verdict, and affix the penalty, and shall decide by ballot whether it shall be expulsion, suspension, reprimand, or fine. The constitution further provides as follows: "During the ballot, the accused brother shall withdraw from the hall. If upon the ballot two-thirds of the ballots are cast for expulsion, such shall be the penalty. If twothirds of the ballots are cast for suspension, suspension shall be the penalty, and the society shall proceed to fix the duration of such suspension. If neither expulsion nor suspension is determined as the penalty, as above provided, the penalty shall either be reprimand, fine, or both. If fine is determined upon, then the society shall fix the amount, not exceeding ten dollars. If reprimand is decided upon, then the accused shall be reprimanded during the meeting by the acting president. No ballot held under this section shall be reconsidered." 1. It does not appear from the record before us that the ballot taken on April 11th showed that two-thirds of the members present failed to vote for expulsion of the accused. To be sure, the entry in the minutes, as appears from the findings, showed "that the ballots of a majority of the members of the society then present was in favor of the expulsion of the petitioner from the society"; but this "majority" may have consisted of two-thirds of all the members present, for all that appears in the entry or elsewhere. Besides, this vote at the instance of petitioner was by a court of competent jurisdiction adjudged to be void; and, in pursuance of that decree, the society was warranted in treating the matter as if no vote had ever been taken, and no attempt made to "pronounce judgment upon the verdict." A void vote or a void attempt to pronounce judgment did not deprive the society of jurisdiction to thereafter take a vote that would be valid under its code of procedure, and pronounce a valid judgment on the verdict. The case in this respect is not different in principle from any criminal case that has been appealed, and the judgment reversed for some defect or informality in pronouncing judgment in the court below, and the case remanded, leaving it for the trial court to simply arraign the defendant for sentence, and pronounce judgment on him in a proper manner, just as if no previous attempt had been made to do so. The reversing the judgment on the ground alone of its informality or defect would not necessarily affect the verdict. So, also, here the decree referred to in the findings in this case was not intended to annul, and did not have the effect to annul, the trial of petitioner before the committee, or to in any way affect their verdict and recommendation. 2. It is also apparent from the foregoing statement that the provision of the constitution prohibiting a reconsideration of a ballot once taken was not violated. A reconsideration implies that there is something in existence to reconsider. The first vote was void, and should be so treated, for all purposes, as we have already seen. 3. The laws of the order did not provide that the accused should have notice of the time fixed for pronouncing judgment, but to the contrary it provided that he should not be present when the ballot, which was the essence of the judgment, was being taken. Notice and opportunity to be present at the trial and cross-examine witnesses are provided for, and this was sufficient. Besides, the accused having filed no exceptions, there was nothing left for the society to do except by their ballot to pronounce judgment, and therefore notice at that stage of the case could avail nothing. The judgment should be affirmed. We concur: COOPER, C.; HAYNES, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment is af-. firmed. (27 Mont. 161) ANACONDA COPPER MIN. CO. v. HEINZE et al. (Supreme Court of Montana. Aug. 2, 1902.) MINES AND MINING-ORE VEIN-OWNERSHIPBURDEN OF PROOF INJUNCTION-EQUITABLE TITLE-EVIDENCE-REBUTTAL-APPEAL -RULES OF TRIAL COURT. 1. In an action to restrain defendants, who are engaged in removing ores from beneath the surface of plaintiff's ground, the burden is on defendants to show that they are not trespassers, and that they have a right to follow the vein into plaintiff's territory; and in case of doubt an injunction should be granted. 2. Where, on an application for an injunction, affidavits offered by defendants were received over plaintiff's objection that copies had not been served on his counsel, as required by the rules of the district court, and the record does not show the provisions of such rule, the supreme court is unable to say whether the ruling was erroneous. 3. On an application for injunction to re 13. See Evidence, vol. 20, Cent. Dig. § 2413. strain defendants from removing ores from plaintiff's ground, the court cannot consider the evidence in another action involving the title to the same vein, but to which this plaintiff was not a party, or interested, either where such evidence is embraced in affidavits or on the court's own recollection thereof. 4. Under Civ. Code, §§ 1012, 1013, providing that the trustees or officers of any mining corporation shall not have power to sell any part of the mining ground unless the sale is first authorized by a vote of two-thirds of all the stockholders at a meeting called for that purpose at which three-fourths of the stock is represented, a proposition by the president that on deposit of a specified sum as the purchase price the corporation will at once proceed to obtain the requisite consent of its stockholders for selling, and will then sell and convey a specified portion of its mining claim, and the acceptance of such proposition and deposit of the money, do not give the proposed purchaser an equitable title to the mine, or right to extract ore therefrom. 5. Where, in an action to restrain defendants from taking ore from beneath the surface of plaintiff's ground, defendants had introduced evidence that the apex of the vein was in their ground, and that it could be traced to the point where they were working, evidence by plaintiff tending to show that the vein was not continuous was proper rebuttal. 6. Where, on a motion for an injunction to restrain defendants from taking ore from beneath the surface of plaintiff's ground, the court has received incompetent evidence for defendants, and excluded material evidence offered by plaintiff, and it is reasonably apparent that the court was influenced thereby in denying the motion, the order will be reversed, even though the competent evidence received was sufficient to sustain the order. Appeal from district court, Silver Bow county; Wm. Clancy, Judge. Action by the Anaconda Copper Mining Company against F. Augustus Heinze and others. From an order denying a temporary injunction, plaintiff appeals. Reversed. W. W. Dixon, A. J. Shores, C. F. Kelly, and D. Gay Stivers, for appellant. McHatton & Cotter and J. M. Denny, for respondents. BRANTLY, C. J. Action in ejectment and for damages, in which plaintiff seeks to recover possession of the Snow Bird quartz lode mining claim, situate in Silver Bow county, and the value of ores removed therefrom by the defendants. Equitable relief by way of injunction is also sought to restrain removal of ores pending the action, and perpetually, in case plaintiff succeeds in obtaining judg ment. Upon filing the complaint the plaintiff applied for and obtained an order requiring the defendants to show cause why they should not be enjoined pending the action. They appeared, and filed a joint answer, and, after denying that they were guilty of trespassing upon the property, set up an equitable counterclaim, by which they seek to obtain a decree adjudging the defendant F. Augustus Heinze the owner of it under a contract by which he purchased it from the plaintiff, with other property, for the price of $100,000, which has been fully paid. After a hearing the temporary injunction was denied. The plaintiff has appealed. The subjoined diagrams will serve to illustrate the contentions of the parties. The main controversy at the hearing turned upon the question where the apex of the vein in which certain ore bodies are found is situated,-whether within the boundaries of the Snow Bird claim, or within those of the Johnstown and Rarus claims to the north, which belong to the defendants, the Johnstown Mining Company and the Montana Ore Purchasing Company. The plaintiff contended that the apex of a vein, known as the "Windlass Vein," passes through the northeastern portion of the Pennsylvania claim in the direction indicated by the words "Windlass Vein" upon diagram 1, and that this apex is also found within the perpendicular planes descending into the earth through the exterior boundaries of the Snow Bird claim. The Snow Bird is a fractional claim, and a portion of it shown on diagram 1 is indicated by the letters G, H, K, L, M. Portions of the Johnstown and Rarus claims to the north are indicated by the letters G, C, D, I, K. The Pennsylvania, to the south, belongs to the Boston & Montana Consolidated Copper & Silver Mining Company. The lines AA and BB represent, substantially, parallel fault tissures extending through the country in a northeasterly and southwesterly direction, and dipping into the earth at an angle of about 50° toward the northwest. Under the theory advanced by the plaintiff the fault occasioned by geological disturbances in the crust of the earth was attended by such a movement of the portion between the fissures as to cut off and destroy the identity and continuity of the vein to the east and west, and the Windlass vein, having its apex near the surface toward the east end line of the Pennsylvania, is cut off by the fault so that its top or apex descends into the earth under the face of the east fault fissure until it passes through the north side line of that claim into the Snow Bird, thus presenting what plaintiff claims is a subfault apex within the boundaries of the latter. AA represents the face of the east fault near the 900-foot level of the Rarus workings; BB the face of the west fault at or near the 1,000-foot level. The vein, as it descends under the east fault fissure, enters the Snow Bird ground across the line HI between the 800 and 900 foot levels, and, traversing the claim under the dip of the fault, passes into the Johnstown across the line GK about the 1,000-foot level. The plaintiff's witnesses state that the vein is practically vertical. Let us suppose a plane passed downward through the earth in the direction of the strike and along the southeast wall of the vein fissure. and the portion of the earth toward the southwest removed. To a person facing the northeast the vein would be exposed with the various levels ending at the east fault fissure represented by the line CE on diagram 2. This is the line of the subfault apex as contended for by the plaintiff, and, if its theory is correct, it is entitled to the portion of the vein intercepted by a plane passing through the line CE (AA, diagram 1) on the strike and dip of the fault, and perpendicular planes passing downward into the earth through the lines GK and HI (diagram 1). The plaintiff introduced evidence tending to sustain this contention. The defendants contended, and produced evidence tending to show, that the so-called "Windlass Vein" has no existence in fact; that there is a vein the top or apex of which is found in the Johnstown and Rarus claims; that the vein dips to the south or southeast, and in its descent into the earth passes beyond the boundaries of these claims through the Snow Bird and into the Pennsylvania claim; that it has been so developed as to demonstrate its continuity from its apex to the ore bodies in question; and that the apex of the vein being so situated with reference to the end lines of the Johnstown and Rarus claims as to give extralateral rights thereon, the ore bodies belong to the defendant corporations by virtue of their ownership of the apex. While admitting that the fault runs through the country as plaintiff claims, they also produced evidence tending to show that it does not so interrupt the vein as to destroy its continuity and identity along its strike, but that it can be readily traced entirely through the fault by substantially continuous ore bodies of a character and composition identical with that on either side of it. There is no controversy but that defendants are entitled to follow the vein which has its apex on their claim; so that, if their contention as to its identity and continuity upon the dip and strike through the fault is well founded, they are the owners of the ores in dispute. 1. The contention is made in this court that, it being made to appear that the defendants were at the time of the hearing engaged in removing ores from beneath the surface of the plaintiff's ground, the burden was upon them to show that they are not trespassers, and that the evidence produced by them was not sufficient to warrant a refusal of the injunction. As the order must be reversed upon other grounds, we shall not now undertake to decide where the preponderance of the evidence is, but leave the whole matter to the discretion of the district court upon the evidence which the parties may produce at another hearing. We agree with the contention of the plaintiff, however, that in such cases the burden rests upon the defendant to show that he is not a trespasser, but that he possesses a title which justifies an intrusion upon the territory of his neighbor; and, unless the evidence is reasonably clear and satisfactory that the defendant is in the right, the injunction should be granted. In such cases the doubt, if any, should always be resolved in favor of granting the writ; but granting or refusing it is so much a matter of discretion in the trial court that this court will not interfere unless there has been a manifest abuse of discretion. 3. The affidavit of Robinson was devoted mainly to a history of a certain cause heretofore tried and determined in the district court of Silver Bow county, in which there was an issue between the defendants in this cause and the Boston & Montana Consolidated Copper & Silver Mining Company as to the ownership of the vein in controversy in this action, the cause mentioned being designated on the calendar of the district court as "Cause No. 7,337." Judgment therein was for the defendants in this action. The plaintiff herein was not a party to the action. The findings and judgment of the court therein are referred to in the affidavit of Robinson, and made a part of it as fully as if set out therein. The other affidavits contained similar, though not such extended, references to the same matter. Objection was made to this evidence on the ground of its incompetency. The objection was overruled. Counsel for the defendants undertake to justify this ruling of the court upon the theory that the references made to cause 7,337 and the result therein served to enlighten the court as to the issue in this cause, and furnished aid to a proper determination of the respective rights of the parties. The matter was put in the form of affidavits, counsel say, in order to avoid the necessity of "having to present, as was the case in said cause No. 7,337, ten volumes, comprising about 6,000 pages, of testimony." As we understand counsel, the affidavits were introduced for the purpose of showing that the issue before the court was the same as that in cause 7,337, and that the evidence upon which defendants based their claim of title in that controversy was the same as that upon which they would have to rely in case they took the time and trouble to establish it in the present controversy. In other words, since the court had theretofore in another action, upon an issue of title between the defendant corporations and a stranger, heard a large amount of evidence, and had reached the conclusion that the said defendants were entitled to the ore bodies in controversy, and it would be inconvenient to go into the merits of the present case and establish title against the plaintiff, the plaintiff should be bound by hearsay statements or the court's recollection of the evidence adduced in the other action, and the judgment of the court thereon. It requires no argument to demonstrate the fallacy of this reasoning. The evidence was wholly incompetent as hearsay, and the findings and judgment of the court of no binding effect |