GILBERT, Circuit Judge (after stating the case as above). It is clear from the evidence that the complainant's bill must be dismissed. The bill contained the averment that the complainant was in possession of the disputed premises. This averment was denied by the answer. The proof relied upon by the complainant to sustain its allegation of possession was that it had sunk a drift on a vein apexing in an adjacent claim, had followed the same on its dip beneath the surface of the claim in controversy, and had made side drifts therefrom into the ground underneath the surface of the latter claim. It was admitted that this alleged possession was acquired without the knowledge or consent of the defendant, and at a time when the defendant was in the adverse and open possession of the surface. Such a possession is not sufficient to sustain a suit to quiet title, and this for two reasons: First. It was a possession acquired secretly by trespassing and by unfair means. Equity will not lend its aid to protect a possession thus obtained. Comstock v. Henneberry, 66 Ill. 212; Gould v. Sternburg, 105 Ill. 488; Stetson v. Cook, 39 Mich. 750; Watson v. Lion Brewing Co., 61 Mich. 595, 28 N. W. 726; Dyer v. Baumeister, 87 Mo. 134. Second. It was not a possession of the whole claim. Actual possession of a portion of the property to quiet the title of which a suit is brought may be sufficient to authorize the complainant to bring the suit if it be coupled with constructive possession of the remainder (Coleman v. S. R. R. Co., 49 Cal. 517, Roberts v. N. P. R. R. Co., 158 U. S. 1, 15 Sup. Ct. 756, 39 L. Ed. 873), but here there was no such constructive possession, for the surface of the claim and all the workings from the surface were in the adverse possession of the defendant.

But it does not follow that the dismissal of the bill shall carry with it the dismissal of the cross-bill. Where the cross-bill alleges facts not alleged in the original bill, but which are directly connected with the subject-matter of the original suit, and prays affirmative equitable relief directly connected with and arising out of the matters of the original suit, and germane to the same, the court will order the cause to be retained for final hearing, and decree upon the cross-bill. Chicago & A. R. R. v. Union Rolling Mill Co., 109 U. S. 702, 3 Sup. Ct. 594, 27 L. Ed. 1081; Heinze v. Butte & Boston Con. Gold Min. Co., 126 Fed. 1, 61 C. C. A. 63; Markell v. Kasson (C. C.) 31 Fed. 104; Jesup v. Illinois Central R. Co. (C. C.) 43 Fed. 495; Lowenstein v. Glidewell, 5 Dill. 325, Fed. Cas. No. 8,575; Small v. Peters (C. C.) 104 Fed. 401. Nor is it necessary that the crossbill shall contain the jurisdictional averments as to the citizenship of the parties. The parties to the original bill, being already before the court as parties thereto, are subject to its jurisdiction. Jesup v. Illinois Central R. Co. (C. C.) 43 Fed. 481-496; Schenck and Bliss v. Peay, 1 Woolw. 175, Fed. Cas. No. 12,450.

The defendant claims to have acquired the interest formerly belonging to Moran both by virtue of Moran's abandonment thereof and by its notice and forfeiture under the provisions of section 2324 of the Revised Statutes [U. S. Comp. St. 1901, p. 1426]. While

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the evidence sufficiently shows that Moran, in 1895, left the mine without the intention of returning, and gave up and abandoned his interest therein, it is not shown how such abandonment operated to transfer his interest to the other owners. By an abandonment an occupant leaves the claim free to the location of the next comer. His interest reverts to the United States, and the claim is open to relocation. His abandonment inures to the benefit of no one except a relocator, and there was no relocation in the present case. By his abandonment Moran lost all interest in the claim, and had nothing which he could convey to the complainant's grantor, so that the complainant may be said to have acquired nothing through the conveyance of Moran to Gregg. It is equally true that the defendant has acquired nothing by the abandonment, and, in order to show that it is entitled to a patent to the whole claim, it must show its title to the whole.

It is contended that the proceedings to declare a forfeiture of Moran's interest are void by reason of defects in the notice. Welsh, on December 15, 1897, quitclaimed the whole mining claim to Gibbs, and on December 21st of that year Gibbs conveyed it to Ames and Simmons. Ames and Simmons did the assessment work for the year ending December 31, 1898. On June 14, 1899, they conveyed the claim to the defendant in consideration of 999,993 shares of the 1,000,000 shares of stock of that corporation. The remaining shares were transferred to others for the purpose of organizing the company. The date of the notice was July 28, 1899. At that time Ames and Simmons still owned the shares of stock which they had received. The notice was signed by Ames and Simmons and the Stockton Gold & Copper Mining Company. It is said that the notice did not comply with the law for the reason that at the time when it was given Ames and Simmons had parted with their interest in the claim, and at the time when the assessment work was done the mining company was not an owner. Reference is made to Turner v. Sawyer, 150 U. S. 578, 14 Sup. Ct. 192, 37 L. Ed. 1189, in which the court said: "It will be observed that the right to give this notice on a claim for contribution is limited to a co-owner who has performed the labor." The facts in the case so cited were that Turner, who gave the notice, did the annual assessment work for the year 1884; but the court found that he did it at a time when he was not a co-owner, since he did not acquire his title until March 3, 1885. The court in its decision strictly construed the language of the statute, which provides that "the co-owners who have performed the labor or made the improvements may at the expiration of the year give such delinquent co-owner personal notice," etc., and held that the work was done by one who did not come within the description of those to whom the remedy was given. In the present case a different state of facts exists. Ames and Simmons were owners at the time and during all the time when the annual assessment work for the year 1898 was done. Undoubtedly they could, at the end of the year, have given the notice provided for by the statute. Has that right become entirely

lost by the fact that prior to giving the notice they transferred their interest to a corporation, taking back substantially all its stock in consideration therefor? I am unable to see upon what ground it can be so held. The right given by the statute is a substantial one. No reason is perceivable why it is not assignable. But if it was not assignable it would seem that Ames and Simmons, owning as they did the stock of the defendant corporation, still substantially retained, notwithstanding their deed, their interest as owners which they had at the time when the assessment work was done. No substantial right of the complainant or its grantors is impaired by so holding, and the terms of the statute are complied with and its purposes are met. If Ames and Simmons had parted with their interest at the time of giving the notice, it is a matter which concerned them and their grantee. It did not concern Moran. And even conceding that their right was not assignable. and that by their conveyance to the defendant they parted with all their interest in the claim, they were nevertheless the co-owners who had done the assessment work, and to whom were given the right to proceed to forfeit Moran's interest. They would be estopped from denying the title of the defendant to the interest thus acquired, both by their conveyance of the whole claim to the defendant and by their action in the present suit. In Elder v. Horseshoe Mining & Milling Company, 194 U. S. 248, 24 Sup. Ct. 643, 48 L. Ed. 960, the court said of the purposes and object of section 2324, that they were "to encourage the exploration and development of the mineral lands of the United States and the sale of the same, and that, all the provisions of the law having been framed with that object in view, if the required work is not performed after the expiration of the year, and notice of contribution properly served or sufficiently published, the rights of delinquents are absolutely cut off, though the failure to do the work may have been caused. by the death of the locator or locators during the year. When a notice has been rightfully published under the statute, it becomes effective in cutting off the claims of all parties, and the title is thus kept clear and free from uncertainty and doubt." Notice was given in the present case in the manner thus suggested by the Supreme Court. It is unimportant to consider to which of the parties signing the notice the forfeited interest accrued. I hold that the notice was effective to cut off the claim of Moran, and that that interest is now vested in the defendant.

It is objected that the defense of forfeiture is an affirmative one, and must be pleaded where the opportunity to do so is afforded. and authorities are cited which so hold. But in the pleadings on which this case is determined, no such opportunity was afforded. It is true that in the original bill of the complainant it was alleged that the defendant therein claimed to have acquired Moran's interest by forfeiture proceedings, and the defects were set forth which were said to render the proceedings void. But the cross-bill alleged no more than title and possession in the complainant, the nature of the cloud upon its title, and the adverse claim which it

sought to remove. The complainant answered the cross-bill by denials of the matters so alleged. The complainant having in its original bill so alluded to the forfeiture, and having offered its proofs. herein under the issues which it so raised, and having made no objection to the proofs offered by the defendant, is in no position now to say that it is prejudiced by the failure of the defendant to plead in its cross-bill the forfeiture of Moran's interest.

The bill will be dismissed at complainant's cost, and a decree will be entered for the defendant as prayed for in its cross-bill, and for its costs and disbursements.

BUTTE & B. CONSOL. MIN. CO. v. MONTANA ORE PURCHASING CO. et al.

(Circuit Court, S. D. New York, May 6, 1905. On Rehearing, July 26, 1905.) DEPOSITIONS-PROCEDURE IN TAKING-RULING ON OBJECTIONS.

On the taking of the deposition of a witness in an action at law, in another district, under Rev. St. § 863 [U. S. Comp. St. 1901, p. 661], questions asked by plaintiff were objected to as being irrelevant or immaterial, or as calling for incompetent testimony, or as inquiring touching matters about which the witness was privileged not to answer, and, the witness having refused to answer, the matter was certified to the Circuit Court of the district where the testimony was being taken. Held that, as the power and duty of such court to pass on the objections was unsettled, it would require the witness to answer all questions in conformity to the equity practice, to enable the question to be taken before the appellate court in contempt proceedings should the witness still refuse to answer. Jno. A. Garver, for the motion.

Edw. M. Shepard, opposed.

LACOMBE, Circuit Judge. The action is for trespass in removing ore from a mining property of complainant, and witnesses are being examined before a commissioner under section 863, Rev. St. [U. S. Comp. St. 1901, p. 661]. Inasmuch as this is not a suit in equity, the peculiar rules governing the taking of testimony_in such suits laid down in Blease v. Garlington, 92 U. S. 1, 23 L. Ed. 521, and in many decisions in this circuit following that case, have no application.

What happens is this: A witness is asked a question. It is objected to as being irrelevant or immaterial, or as calling for incompetent testimony, or as inquiring touching a matter about which the witness is privileged not to answer. The commissioner makes no ruling he has no power to make a ruling upon which an exception can be based-and the witness does not answer. When enough unanswered questions have thus been accumulated, the matter is brought before the court for a ruling, upon an application to compel the witness to answer; the commissioner certifying the record. It is right and proper that there should be a ruling by the court on each question, so that an exception may preserve all rights of the party asking the question. But what court shall pass upon the objections? Shall it be the court in which the action is pending, and

which is responsible to secure to litigants a fair trial of the issues before it? Or shall it be the court under whose process the presence of the witness, living more than a hundred miles from the trial court, is procured? Neither side discusses that question. If there were abundant time to examine the whole subject exhaustively, reviewing all the decisions, this court would willingly undertake the investigation, in the hope that the result would be a decision that it is not the duty of a court in which the issues are not triable to determine questions which often can be determined rightly only by the court to which the disposition of the whole case is consigned. But we have here only pressure for an early decision, and a great burden of causes pending here, and now on trial, which precludes any such examination of the whole subject. Undoubtedly it is frequently the practice for the court which issues the subpoena to instruct the witness to answer, or to refuse so to instruct. Generally it is only the disposition of a few questions in a long examination which is thus submitted, and it is easier, and tends to prevent the law's delays, which so often become an intolerable burden to litigants, to decide them in the court whose process brings the witness up to testify. It seems to the writer of this opinion very clear that the only logical system would be to have all objections to questions passed back to the trial court for determination, and, if they were overruled, that the court whose process produced the witness should constrain him to answer, even though it differed from the trial court as to the soundness of the objections. Otherwise it might happen that the judge in Montana, after conducting a long jury trial, with such careful attention and sound judgment that he committed no reversible error, would yet find the verdict which determined the case set aside because a judge in New York, wholly uninformed as to the involved articulations of the controversy, with nothing but the pleadings before him, had excluded evidence which, under section 863 [U. S. Comp. St. 1901, p. 661], the defeated party was entitled to take. Be that as it may, this court knows of no case, and, in a brief consultation of the digests, can find none, where, in circumstances such as are here presented, the objections have been sent back to the trial court to be passed upon; and, since a prompt decision is asked for, the usual practice will be followed. That is to say, the court here, with the whole cause before it, so far as that cause has progressed, which in this instance is limited to the filing of the pleadings, will proceed to rule on the objections. As the cause is here presented, the plaintiff is beginning to take his proofs under the issues, and this court will rule on all objections as if the trial were here begun.

Quite frequently upon a trial a question put to a witness does not seem relevant to the issues raised by the pleadings, but the propounder of the question is allowed to state to what point the question is directed, and how it is to be connected with other proofs. Often upon such a statement the court is satisfied that it is a reasonable one, since the whole case for the propounder's side cannot be put in at once, and rules accordingly. In the record before the commissioner, this statement does not appear, but, in the rulings