criterion of equity jurisdiction. He says: "Whether or
not the jurisdiction will be exercised, depends upon the
fact that the estate or interest to be protected is equitable
in its nature, or that the remedies at law are inadequate,
where the estate or interest is legal a party being left to
his legal remedy where his estate or interest is legal, and
full and complete justice can be done;" 3 Pom. Eq., sec-
tion 1399 and note; see Goldberg v. Taylor, 2 Utah,
491.
There is nothing inconsistent with this view in Holland
v. Challen, 110 U. S., 15.
which the complaint was
statute of this territory.
in equity where the land was vacant.
quia timet.

The statute of Nebraska, under
filed, was substantially like the
It was held to authorize a bill
It was then a bill

The court say:

The land was unoccupied in that case. "The property in this case, to quiet the title to which the present suit is brought, is described in the bill as unoccupied, wild and uncultivated land. . An action for ejectment would not lie, as it has no occupant, and if, as contended by the defendant, no relief can be had in equity, because the party claiming ownership is not in possession, the land must continue in its unimproved condition. To meet cases of this character, statutes, like the one of Nebraska, have been passed by several states, and they accomplish a most useful purpose." The opinion all through is careful to maintain the jurisdiction in equity of cases under that statute only where legal actions cannot be resorted to for the determination of the title.

.

In Alton Marine & Fire Insurance Company v. Buckmaster, 13 Ill., 201, the court said: "The reason why a party out of possession cannot maintain such a bill is, that he may bring an action at law to test his title, which, ordinarily, a party in possession can not do. Such a bill is only entertained by a court of equity, because the party is not in a position to force the holder of, or one claiming to defend under the adverse title, into a court of law, to contest its validity; and this as a general rule, is the test to which a court of equity will look

to determine whether the necessity of the cases requires its interference."

In Stockton v. Williams, Walk. Ch., 120, the bill was to quiet title, and was filed by the defendant in an ejectment suit for the same land. The defendants in equity insisted for the first time at the hearing on pleadings and proofs that inasmuch as they had brought an action of ejectment for the purpose of trying their title at law before the complainants filed their bill in equity, the bill should be dismissed for want of jurisdiction under the statute, which they contended should be construed to apply to claims only which the party was not proceeding to establish at law, at the time of filing the bill. The Chancellor said:

"The object of the statute seems to be to enable a person in possession of real estate, and having a title thereto, to remove all doubts in regard to his title arising from the claims of third persons who are taking' no steps to test the validity of their claim at law or equity, and who, by their refusal or neglect to institute proceedings for that purpose keep the party in possession in a state of suspense. This is the extent, I think, to which this court should go under the statute. A different construction of the act would leave it optional with every defendant in ejectment to litigate his title either at law or in this court, and by filing his bill here, to take from his adversary the right to have the facts of the case passed upon by a jury of the country. Such, therefore, it seems to me, is the construction that should be given to the statute, where the title of the defendant in ejectment is a legal and not an equitable title, and there is nothing to prevent his establishing it as fully at law as in a court of equity:" S. C., 1 Dong., 546.

In Moran v. Palmer, 13 Mich.. 367, an ejectment suit had been brought against a tenant; the landlord assumed the burden of defense. One trial had taken place and a verdict recovered by the plaintiff; another trial could be had, of course, on payment of costs. In this state of the proceedings, the landlord filed a bill against the persons who were plaintiffs in ejectment to quiet his title. The

proceedings in the ejectment suit were stated in the answer. The court say, by Cooley, J.:

"We have thus presented to us the anomaly of a party who asserts that he is possessed of a complete legal title to lands which are occupied by him, and who points out no difficulty in the way of exhibiting and establishing such title, appealing to a court of equity for relief against the claims of other parties who are pressing their claims against him at law, and have already obtained an adjudication in their favor. Argument to show that this bill cannot be sustained is entirely unnecessary. If the facts as above stated were fully set forth in the bill, it would be demurrable, and being presented by way of defense, they are a complete answer to complainant's case. A court of law is the appropriate tribunal for the trial of titles to land: Abbott v. Allen, 2 John. Ch., 520; Devaux v. The City of Detroit, Harr. Ch., 93. The claimant of the legal title has a right to have the facts upon which his claim is based submitted to a jury, and it is only when the remedy at law is inadequate that resort can be had to equity. Nothing is better settled than that equity will not aid in clearing a title to land when complainant's remedy at law is complete: Allon Marine & Ins. Co. v. Buckmaster, 13 Ill., 201; Smith v. McConnel, 17 Ill., 138; Ritchie v. Dorland, 6 Cal., 33; Walcott v. Robbins, 26 Conn., 236; Munson v. Munson, 28 Conn., 582; Shotwell v. Lawson, 30 Miss., 27; Murphy v. Blair, 12 Ind., 184. And when a party comes into equity for relief, he must set forth in his bill the circumstances which deprive him of a legal remedy: Williams v. Ayrautt, 31 Barb., 364. A bill to quiet title on behalf of the legal owner is only entertained where the party is not in a position to force the adverse claimant into a court of law to test its validity: Alton Marine & Fire Insurance Company v. Buckmaster, 13 Ill., 201. This happens when the holder of the legal title is in possession and an adverse claim is set up, which no steps are taken to enforce; but when each party claims the legal title, and the court of law is already possessed of the case, and it is not alleged that either fraud, accident or mistake has intervened to prevent the possessor establish

ing at law all the title which he claims, the remedy at law is perfect, and equity cannot interfere to take from a jury the trial of the questions, which, in such a case, belong to that tribunal. The more clearly the complainant establishes his title under such circumstances, the more clearly does he show that the relief he seeks is not within the province of a court of equity:" Page v. Montgomery, 46 Mich., 51; Comstock v. Henneberry, 66 Ill., 202.

3. The cross-complaint does not sufficiently allege the adverse claim, and the demurrer was erroneously overruled. The statement of it is a legal conclusion, and fatally defective: Wals v. Grosvener, 31 Wis., 684; Page v. Kennan, 38 Id., 324; Peters v. Hansen, 21 N. W. Rep., 342; Jenks v. Hathaway, 48 Mich., 536; Blasdal v. Williams, 9 Nev., 161; Hibernian etc. Co. v. Ordway, 38 Cal., 679; Teal v. Collins, 9 Oregon, 89.

The certified or exemplified copy of the record of the patent from the United States to the Eureka Mining Company of Utah, of the Eureka mining claim, which was the source of the respondent's title, and through which they proposed to derive title, was improperly admitted in evidence, because it was not shown that the original was not in the possession of the party offering the certified copy of the record, nor was it in any manner accounted for.

We may concede that by the common law rules of evidence, a patent under the seal of the United States, is conclusive proof of the act of granting by its authority, and its exemplification is a record of absolute verity in all states and territories where this rule has not been changed by statute: Patterson v. Winn, 5 Peters, 233.

If this rule, as a common law rule, was ever in force in this territory, it has been changed and abrogated by the positive enactment of the Legislature: Code of Civil Procedure, sec. 1198.

This provision the code applies to a patent from the Government with equal force and binding effect as to a grant from a private individual.

The exemplified copy of the record of the patent received in evidence, was secondary evidence of an instrument conveying real estate, and to authorize a certified

copy of the record of such an instrument to be read in evidence, it should have first been shown that the original was not under the control of the party offering this evidence, or have been in some way legally accounted for: Code of Civil Procedure, sec. 1198; Mayo v. Mageany, 38 Cal., 442; Stephenson v. Dol, 8 Black, 508.

Whatever inconvenience such a practice or construction. would work, still it is better to remit parties to original proof where the requisites of the statutes have not been complied with: Ruslim v. Shields, 11 Ga., 636.

4. The defendant failed to prove the descriptive allegations in the cross-complaint as to the locus in quo.

It is a more serious objection than a variance-it is failure to prove "the allegation of the claim," "not in some particular, or particulars, only, but in its general scope and meaning:" Utah Code Laws, 1884, sec. 342.

The complaint is not filed to quiet title to a definite parcel of surface land, but to a mineral vein described under peculiar conditions. These premises have been already referred to, with a view to showing a variance of another sort. The vein is described as dipping westerly, as running parallel with the Eureka claim, and its course and apex inside its surface lines for its whole length, except at one point for a short distance. The northerly 700 feet of this vein is the part alleged to be adversely claimed by plaintiff.

The cross-complaint admits a slight variation of the hanging wall at one point for a short distance. This is said, by way of exception to the general averment, that it ran within and parallel to the side lines the whole length of the claim-2200 feet; it is not alleged that this variation occurs in that space of the vein adversely claimed by the plaintiff; nor is the adverse claim stated to be of so much of the vein as by this swell lies within the Bullion lines. The adverse claim is stated to be of the vein entire for 700 feet, and the northerly 700 feet of the vein in the Eureka claim.

It is evident that the pleader intended to base the defendant's title to the vein on the fact that the entire apex was within the side lines of the claim, and while a varia