This legislation has

tion of that laid down by the older cases. settled the conflict, and adopted a rule while somewhat variant, yet much in harmony with the later and better decisions of the courts. Applied to this case, the receipt relied upon by defendant did not have the signature of plaintiff or consignor. It was therefore not a "special contract," which could limit the carrier's liability; it was a mere notice, which would not limit his obligation. His obligation was to deliver the trunk to the consignee named in the contract. He contracted to do so under his general obligation as a common carrier, and that he would be liable for the loss or injury thereof, except from “(1) an inherent defect, vice, or weakness, or a spontaneous action, of the property itself; (2) the act of a public enemy of the United States, or of this territory; (3) the act of the law; or (4) any irresistible superhuman cause." Section 1275, Civil Code.

He did not modify this contract in any manner provided by statute, and he must be held to his liability as such common carrier. Under this statute, parties can only relieve themselves from their obligations as common carriers in the manner therein pointed out. There is another provision of our statute, to which our attention has been called, which perhaps should receive some consideration by the court in the determination of this case. Section 958 of the Civil Code reads as follows: "Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void." The first part of the section contains nothing new, and is substantially the common-law doctrine as pretty uniformly announced by the decisions of all the courts; but the latter clause, which declares unlawful every stipulation or condition in a contract, "which limits the time within which the party may enforce his rights," is perhaps against the great weight of modern authority. The question has been much mooted, and it has been vigorously contended that the law alone should establish limitations of actions. This view was urged

upon

the attention of the court by no less distinguished counsel than Benjamin F. Butler, in Fullan v. Insurance Co., 7 Gray, 61; but the court then denied the doctrine, and asserted that the opposite view had so long obtained there as to become the settled law of the state. And the same view is held in Brown v. Insurance Co., 5 R. I. 394; Insurance Co. v. Candle Co., 31 Pa. St. 448; Wilson v. Insurance Co., 27 Vt. 99; Ames v. Insurance Co., 14 N. Y. 266. It is claimed that the earlier decisions of New York took the other view, which was adopted by the commissioners; but the later view in New York and other states seems to be adopted by the supreme court of the United States in Express Co. v. Caldwell, 21 Wall. 264, cited supra. There are, however, very respectable authorities which announce the rule laid down by our statute, and the earlier decisions of New York, among which are Insurance Co. v. Insurance Co., 9 Ind. 443; French v. Insurance Co., 5 McLean, 461.

But it is not worth the while of the court to compare the reasoning of the repective courts, or to determine which is the better adapted to our locality. Our legislature has seen fit to settle the conflict, and its decision is as much binding upon us when it determines the conflict against, as well as when it determines it in favor of, the weight of authority as announced by the courts.

The language of the statute confines its prohibition of limitation to enforcement of rights, and is especially intended to cut off all limitations of time for commencement of actions. The provision of this receipt is perhaps rather a condition precedent than a limitation, and, as it is not necessary to this case to determine whether the limitation in this receipt comes within the prohibition of this statute, we shall leave this question for adjudication by the court whenever it shall be fully presented in a case involving this precise point.

In the view we have taken of this case, the defendant has nothing to complain of in the charge of the court. It was more liberal than he was entitled to under the statute, as we have construed it, and it will be unnecessary for us to examine

whether, under the evidence, there was a substantial compliance with the terms of the receipt or contract of carriage, as to the claim within 90 days, since it was not assented to by her signature, nor binding upon the plaintiff. The judgment of the district court is affirmed. All the justices concur.

SUESSENBACH et al., Appellants, v. FIRST NAT. BANK, Respondent.

1. Mines and Mining-Claims-Property,before Patent.

Where all of the laws, rules, regulations and customs with reference to a mining claim have been complied with, a property right, prior to the issuance of the patent, has been acquired that can be transferred or inherited.

2. Same-Trust.

Where the appellants, grantees of such a claim, (their grant being subject to that of respondent's as to a part, of which it or its grantors had held continuous possession,) acquired a patent to the entire claim, founded on the original location, there being no adverse claim by respondent, held, the appellants took the respondent's interest, charged with a trust that the court would enforce in an action brought by appellants to recover possession of the part held by the respondent. 3. Same-Adverse Claim.

Respondent's interest was not such an adverse claim within the meaning of sections 2325, 2326, Rev. St. U. S., as would require a protest of the appellants' application for a patent.

4. Pleadings-Ejectment-Equitable Defense.

Under the Code, equitable defenses may be interposed to an action of ejectment. It is also proper to dispose of such defenses first, and, if they are found in favor of the defendant, to discharge a jury from any consideration of the case.

5. Same-Evidence.

In such an action, on an issue of the equitable ownership of a mining claim, the admission in evidence of the rules of the mining district, and also the proceedings had in the land-office where the application to enter the claim was made, is proper as showing that by accident or fraud the legal title has not passed to the true owner.

(Argued October 8, 1888; aflirmed October 13; opinion filed February 4,

Appeal from district court of Lawrence county; HON. CHARLES M. THOMAS, Judge.

McLaughlin & Steele, for appellants.

That the court erred in admitting in evidence the proceedings had in the land-office, and admitting the rules and regulations of the mining district, see Silver Mining Co. v. Brown, 10 Sawy. 246; Smelting Co. v. Kemp, 104 U. S. 640, 641; Steele v. Smelting Co., 106 U. S. 450-455; Quinby v. Conlan, 104 U. S. 420; Tilton v. Cofield, 93 U. S. 163; Uligh v. Garrison, 2 Dak. 71, 2 N. W. Rep. 99; French v. Lancaster, 2 Dak. 346, 9 N. W. Rep. 716; Golden Terra M. Co. v. Smith, 2 Dak. 462, 11 N. W. Rep. 97; Kendall v. San Juan Silver M. Co., 9 Colo. 349, 12 Pac. Rep. 198; Golden Fleece Co. v. Cable Con. Co., 12 Nev. 324; North Noonday M'g Co. v. Orient M'g Co., 6 Sawy. 299; Jupiter Mining Co. v. Bodie Con. M. Co., 7 Sawy. 112; section 2119, Civil Code.

Any interest, legal or equitable, constitutes an adverse claim. Hamilton v. Southern Nev. G. & S. M. Co., 33 Fed. Rep. 562; Butte City Smoke-House Lode Cases, 12 Pac. Rep. 858; Richmond M. Co. v. Rose, 114 U. S. 576-584, 5 Sup. Ct. Rep. 1055; Lee v. Stahl, 11 Pac. Rep. 77.

There are no less than nine distinct allegations in the defendant's answer that its claim of title and that of its grantors, Stebbins and Hoffman, is a title adverse to the plaintiffs and their grantors.

The grantor of the defendant neglected to file with the register and receiver of the land-office at Deadwood, during the period of publication, an adverse claim to the lot in controversy. This was a waiver of any claim that he had, legal or equitable, against the applicants, for the lot in question. The answer fails to allege in any of its defenses or counter-claims that such an adverse claim as the law makes obligatory was filed with the landofficers at any time, or that any action was commenced by Stebbins or the defendant to determine the right of possession to the premises in dispute, within the time and in the manner provided

by the United States law relating to mineral lands; and both he and the defendant were thereafter concluded from disputing plaintiffs' right to recover possession of the disputed premises. Rev. St. §§ 2325, 2326.

The policy of the mining act to compel parties to settle or litigate their disputes relative to adverse claims to mining ground before entry and payment is made manifest by the subsequent portion of section 2326. No similar proceedings are known to any of the other land laws. As the United States supreme court say in Mining Co. v. Consolidated Mining Co., 112 U. S. 167: "The system of law adopted for the sale and regulation of its mineral lands is totally different' from that which governs other public lands." See, also, Meyendorf v. Frohner, 3 Mont. 322; Eureka Cons. Co. v. Richmond Cons. Co., 4 Sawy. 318; 12 Nev. 320–323; Smelting Co. v. Kemp, 104 U. S. 636-655; Steele v. Smelting Co., 106 U. S. 447, 1 Sup. Ct. Rep. 389; Talbot v. King, 9 Pac. Rep. 438; Raunheim v. Dahl, Id. 892; Montana Copper Co. v. Dahl, Id. 894; Gwillim v. Donnellan, 115 U. S. 45, 5 Sup. Ct. Rep. 1110; Wolverton v. Nichols, 119 U. S. 485, 7 Sup. Ct. Rep. 289; Nessler v. Bigelow, 60 Cal. 101.

From the foregoing decisions, whatever were the rights and equities of Stebbins in the lot in controversy in July, 1878, he waived them by not filing his adverse claim, if he had any, with the register and receiver of the Deadwood land-office within the 60-days period of publication of the application for the patent for placer claim No. 15.

When a statute confers a right, and prescribes adequate means of protecting it, the proprietor of that right is confined to the statutory remedy. Almy v. Harris, 5 Johns. 175; McCowen v. Coherty, 3 Wend. 494; Stafford v. Ingersoll, 3 Hill, 38; Dudley v. Mayhew, 3 N. Y. 15; Cofield v. McClellen, 1 Colo. 374; City of Denon v. Kent, Id. 344; Denning v. Smith, 3 Johns. Ch. 345.

"Courts of equity do not assist those whose condition is attributable only to want of due diligence, nor lend their aid to par