they are justified in making such permanent and beneficial repairs and improvements as a prudent owner would deem it to the interest of the property to make.

The case of Mickles v. Dillaye, 17 N. Y., 80, was that of a mortgagee in possession, under circumstances which induced him to believe that he had the legal title. The court said: "The judgment of the supreme court should be reversed as respects the accounts stated by the referee, and there should be a reference in that court to take an account between the plaintiff and the defendant Dillaye, in which the latter should be allowed the enhanced value of the premises, on account of the improvements made by the defendant." Also Bacon v. Cottrell, 13 Minn., 194, (Gil. 183.)

In Harper's Appeal, 64 Pa. St., 315, it appeared that Harper was in possession under a deed absolute in form, but held to be a mortgage. And a claim for costly and permanent improvements, made without the consent of the mortgagor, was put forward. The court in that case said: "The mortgagor was sui juris, competent to contract and manage his own business, and agreed that he [the mortgagee] should take the estate as absolute owner. It is only upon the ground of a general policy, for the protection of needy debtors from the oppressive demands of their greedy creditors, that the principle has been established that such a transaction shall be regarded in equity as a mortgage; and once a mortgage, always a mortgage. Will it be equitable, under such circumstances, to decree a reconveyance of the property, increased in value by substantial and valuable improvements and repairs, at a large expenditure of money in the most perfect good faith, without any allowance therefor? Such a result would, in our judgment, be in the highest degree inequitable, and not in accordance with the liberal principles upon which courts of equity proceed in analogous cases."

Numerous other cases are referred to in briefs of counsel, but we do not regard them as analogous to the case in hand. In some of the cases a mortgagee under an ordinary mortgage had taken possession, and made costly improvements, without the consent of the mortgagor. In such

cases the mortgagee will not be permitted to place such impediments in the way of redemption. He cannot prevent redemption, or render it more difficult, by requiring the mortgagor to pay for costly improvements. In other cases the trustee was chargeable with fraud--held to be a trustee er maleficio.

But in this case the defendants were in under a deed absolute in form, with the knowledge and consent of the plaintiff, and were obliged to occupy and work the mine themselves, or by their tenants, in order to reimburse themselves for their advances; the plaintiff failing to do so. As a general rule, the value of a mine is made manifest by large expenditure of money. Should such work be regarded as an improvement when it brings to view valuable ore bodies? The development work upon this mine brought its value to light, and then the plaintiff became anxious to repossess it. A decree giving to the plaintiff the property, and the market value of the ore, after allowing the cost of its extraction, raising to the surface, and transportation, and the expenditures for developing and improving the property, to the extent that the value was enhanced thereby, would appear to be just to both parties. If the plaintiff has been paid any portion of the money it now claims through the enhancement of the value of the property, would it be equitable to require the defendants to pay again? Nor would it be just, under the circumstances in evidence, to assess damages against the defendants as punishment.

We are of the opinion that the decree should have allowed to the defendants their reasonable expenditures, in developing and improving the property so far as its value was increased by such development and improvement, in addition to the expenditure directly contributing to the extraction of the ore. The other errors assigned are overruled, and the final decree of the court below is reversed, and the cause is remanded to that court, with directions to further find whether the property was benefitted by the expenditures of the defendants, and their predecessors in interest, for work and improvements on the property not directly contributing to the extraction of the ore; and, if

the court finds that such expenditures did benefit the property, further to find how much such benefits enhanced the value of the property; and to that end to take additional testimony, if necessary, and to make such further orders, and to render such decree, not inconsistent with this opinion, as may be equitable.

HENDERSON, J., concurred. BOREMAN, J., dissented.

UNITED STATES, RESPONDENT, v. GEORGE T. PEAY, APPELLANT.

CRIMINAL LAW-UNLAWFUL COHABITATION. -Under the Edmunds law against unlawful cohabitation, the gist of the offense is not living ostensibly with more than one wife, but the fact of such cohabitation, whether open or secret.

ID.-ID. EVIDENCE. -Evidence of the course of life of defendant, the polygamous marriage, and continuance of the relation prior to the time mentioned in the indictment is admissible in evidence. ID. REMARKS OF COURT IN RULING. The remarks of the court in ruling upon evidence and not made to or for the jury, and not objected to or no correction asked, are not ground of error, merely because certain of the remarks might tend to prejudice the jury against the defendant.

ID. EVIDENCE.-Testimony that defendant was seen going to and coming from the house where his polygamous wives were known to live, although one and a half miles distant, but on an open prairie, is admissible, the question of "remoteness" going only to the credibility, not the competency of the testimony.

CRIMINAL LAW.--UNLAWFUL COHABITATION. --INSTRUCTION.--An instruction that the law aims at the wrongful example of an apparent as well as the actual continuance of the polygamous relation, without reference to what actually occurs with the plural or polygamous wives is not error.

ID.--ID.-EVIDENCE- Where a woman of a family is recognized in the family by the name of the husband, it is indicative that she is something more than a stranger, and connected with the fact of marriage is admissible to go to the jury in a prosecution for unlawful cohabitation.

ID.-ID.-INSTRUCTION. An instruction that "when you come to the proof of cohabitation with the illegal wife, it requires actual proof of the fact. The presumptions of law are in favor of innocence, and until some evidence has been given tending to show these acts of cohabitation on his part, the presumption would be that

he did not do that; but where it is shown that these acts of cohabitation have taken place with the plural wives, if shown beyond a reasonable doubt, then it is cohabitation within the mean- . ing of the law, held, to correctly state the law.

APPEAL from a judgment of the district court of the first district, and from an order refusing a new trial. The opinion states the facts.

Mr. J. B. Milner, (Mr. W. N. Dussenberry, Mr. John E. Booth, were with him on the brief), for the appellant.

Mr. George S. Peters, for the respondent.

BOREMAN, J.:

The appellant was convicted of the crime of unlawful cohabitation. He moved for a new trial, which was denied. He has appealed to this court, both from the order overruling the motion for a new trial and from the judgment.

1. The principal assignment of error is that "the verdict was contrary to the evidence in this: that it is conclusively shown that, upon defendant knowing of the passage of the Edmunds law, he ostensibly ceased cohabiting with any woman except his lawful wife, and no acts of his towards either of his plural wives afterwards, that imply cohabitation with either of them, have been proved or testified to."

The first part of this assignment conveys the idea that the defendant may be guilty in fact, but that, if he be not so "ostensibly," he cannot be legally convicted. It is the same thought which has been frequently presented to the district courts, by polygamists asking how they can act towards their polygamous wives and not lay themselves liable to conviction for unlawful cohabitation. With the same propriety might a man who steals a horse ask how he can act in regard to other men's horses and not lay himself liable to conviction for larceny. To tell him that he must simply cease stealing would not be at all satisfactory to him. To tell the polygamist that, to escape conviction for unlawful cohabitation, he must simply cease living with his polygamous wives, is not at all satisfactory

to him. The facts proven are not alike in any two cases of horse-stealing; nor are the facts proven in any two cases of unlawful cohabitation alike. Each case shows a different set of facts from every other case. Counsel for appellant is deluded with the idea that if one set of facts be proven in one case a similar set of facts must be proven in every other case, and that without this there can be no conviction; and he seems to think (and this assignment is based upon that idea) that polygamists may live in violation of the law if they do so secretly; that the gist of the offense is to "ostensibly" live with them. Any more preposterous idea could not well be conceived.

But the latter part of the assignment is more tangible. It asserts, in substance, that no acts of the defendant, after he heard of the passage of the Edmunds law, were such as to imply cohabitation by the defendant with either of the polygamous wives. In other words, that the facts proven did not constitute unlawful cohabitation. It is the same position as that assumed by the second assignment of error.

Some of the leading facts which the jury were authorized to find from the evidence are as follows: The defendant married his first wife 27 years ago. He married Hannah Paasch 25 years ago, and for 20 years Mary Sorenson has been recognized in the families of the defendant as his wife. Each of these women has had a number of children by the defendant, and all of the women and their children. bear his name, and have done so all through these years, and up to the very day of the trial. And all of this has been with his knowledge and consent. He provides homes for all three families. Two of them reside on a farm, and in a house owned by him, a couple of miles from the town of Provo. The other family, that of the legal wife, lives in a house owned by him in Provo. He takes his meals part of the time with the families living on the farm, and part of the time with the family residing in town. His children by the first wife come from town to work on the farm, and when they do so they take their meals with the families living on the farm. He himself takes general control of the farm, and works it, and keeps his stock there. During