Page:Federal Reporter, 1st Series, Volume 7.djvu/348

 336 FEDERAli EBPOBTER. �menacing a character as to satisfy a man of ordinary pru- dence it would be unsafe to begin work, and in such case it might be an excuse for non-performance. But that is not this case. Had Harpham, instead of visiting Perasich at the Tilden mine, gone to plaintiff's mine and begun work, at the worat he would have had to leave when ordered off. There is not the least probability that he would have been injured in his person if he had been willing to do this with- out resistance. I have no doubt, from the testimony, that had Harpham at this time commenced work on the claim resolutely, the defendants would never have interfered with him. At all events, I find that his fears of personal violence had no sufficient foundation, and did not justify him in de- clining to m^ke an effort. It follows that the claim was open to relocation on the twenty-seventh day of September, 1880, when, according to the agreed statement of facts, it was re- looated by the defendant Thomas Perasich. �Another view of this case is this : The complaint alleges an ouster on the twenty-fifth day of November, 1879, by the defendants. Now, it would have been sufEcient to have shown such an ouster, and, if continued as alleged to the time of bringing this suit, it would have been unneces- sary to show that work had been performed by the plaintiff so long as the defendants withheld possession; because, in November, 1879, there had been no forfeiture. The plain- tiff, then, shoald have stood upon proof of these facts, if they could have been established. But I presume that it had no sufBcient proof of them, for it was distinctly admitted, as has been before stated, that ujiless work was done after Jan- uary 3, 1879, or such an attempt to work as amounted to the same thiug, the claim had been forfeited. The ouster, admitting one to have been proved, was in June; the proof consisting of an alleged statement by Thomas Perasich, seven miles from the claim, that he was in possession. But the plaintiff sought to establish a possession in defendants, and claims that it did so. It was obliged to show possession in the defendants at the time of bringing this suit or f all in it. Upon its own theory, that the defendants were in possession. ��� �