Page:Federal Reporter, 1st Series, Volume 7.djvu/647

 ADAMS V. 0«B KNOB COPPEE CO. 635 �Code the distinctions between actions at law and suits in equity are abolished, and the civil action is adopted as the form of action fqr the enforcement or protection of private rights and the redress of private wrongs ; and in such action all the rights of the parties, either plaintiff or defendant, in law or in equity, can be ascertained and adjusted in one suit. The relief demanded by the plaintiff s in their complaint is to be put in possession of the premises described, so that they may dig for and obtain the minerais and metals to which they allege they are entitled under the grant set forth in the pleadings ; and also to have an aocount taken of the large rents and profits received by the defendant corporation in working the mines for a number of years. The plaintiffs are the heirs at law of the grantees, and the grant under which they claim is as follows : �State of Nm-tliOaroli'nM., Ashe Gounty. �Know all men by these presents : That we, John L. Miller and George E. Miller, of the county of Ashe and state of Nort|a Carolina, do this day grant and convey unto James Calloway, of "Wilkesboro, North Carolina, his heirs and assigns ; to B. C. Calloway, of Ashe county, North Carolina, his heirs and assigns ; to Thomas S. Calloway, of Ashe county, North Car- olina, his heirs and assigns; and to Calloway, Cummings & Co., of the county of Knox and state of Tennessee, their heirs and assigns, f orever, all the minerai and metallic interest on the following-described lands, lying and being in the county of Ashe and state of North Carolina, on the waters of Peak creek and Roans creek, the waters of the South Fork of New river, contained in three several tracts, all adjoining, to-wit : * * on the following terms and conditions, to-wit : that the said James Callo- way, B. C. Calloway, Thomas 8. Calloway, and Calloway, Cummings & Co. shall, at their own convenience and time, and at their own proper expense, make a fair test for minerais and metals on the aforesaid laads, and if, after said test hasbeen made, any valuable minerais or metals shall be found worth working on said premises, to work it or cause the same to be done, and to pay over to the aforesaid John L. Miller, his heirs and assigns, and to the said George B. Miller, his heirs and assigns, jointly, the one-fourth part of the net profits of the said minerais and metals. �The said James Calloway, his heirs and assigns ; B. C. Galloway, his heirs and assigns ; and Thomas S. Calloway, his heirs and assigns, — shall have, have eaoh one-seventeenth part of the net remaing three-fourths of minerais and metals on the aforesaid lands. The remaining fourteen- seventeenths of the said three-fourths of net profits are to go to the said Calloway, Cummings & Co., their heirs and assigns. Said Calloway, Cum- mings & Co. are to pay the expense of testing the aforesaid property. And, further, said John L. Miller and George B. Miller, their heirs and assigns, ��� �