Fairbanks v. Bear

HEYDENFELDT, J. — The. first charge to the jury given by the eourt was clearly erroneous. Mining laws, when introduced in evidence, are to be construed by eourt, and the question whether by virtue of such laws a forfeiture had accrued is a question of law. It was therefore improper to submit it to the determination of the jury. The third instruction asked by the defendants was also improperly allowed. There was no issue under the pleadings which involved the question of the jurisdiction of the eourt, and that question ought, therefore, not to have been left to the jury. As the pleadings stand, the verdict would operate as a complete bar to any subsequent action by the plaintiff, whereas if, upon proper pleadings,- the finding against him was the [40]result of want of jurisdiction in tbe justice of tbe peace, lie would still have his right of action in the district court.

For these reasons, the judgment is reversed and the cause remanded.

We concur: Murray, C. J.; Terry, J.