plaintiff's complaint, and the cross-complaint of defendant, are eliminated from the case, leaving for review, on appeal, the legal right of the parties to the body of ore involved in the issue, and the question presented by the appellant's specification of errors-alleged misconduct of the jury.

Plaintiff, the Arizona Prince Copper Company, and defendant, the Copper Queen Mining Company, own adjoining claims, with a common side line of between 500 and 560 feet. By the allegations of the complaint, and the evidence of plaintiff, the claim is asserted and sought to be established that the apex or outcrop of the vein is on the ground of plaintiff, and that it has the right to follow it beyond and under the side line into the adjoining ground of defendant. The defendant by cross-complaint admits a portion of the outcropping to be on plaintiff's ground, and alleges, and gives evidence tending to establish the fact alleged, that part of the outcropping is on its ground; that the vein at the surface divides, and that one division extends into defendant's ground, the other running into plaintiff's ground. Plaintiff admits that a streak of the ore-bearing rock comes to the surface of defendant's ground, but contends that it is outside of the walls of the vein, and is but a spur of the main vein which outcrops on plaintiff's ground. The plaintiff claims that both walls of the vein are on its ground, and defendant practically concedes that the foot wall is on plaintiff's ground, but denies that the hanging wall is.

The issue made by the pleadings as to the character of the body of ore-whether a lead, load or vein-and other questions of fact, notably the particular location of the apex of the vein with reference to the boundaries of the respective claims, the dip and course of the vein, etc., as well as the question in controversy above referred to, were all questions. of fact no more positively asserted and insisted on the one side than denied and controverted by the other, not only by the pleadings, but by the evidence in the case. There is not a material fact involved in the issue joined between the parties which was not on the trial controverted, and that by evidence not only conflicting in its character, but in our opinion bringing the case clearly within the rule of "substantial conflict" in the evidence. The immense volume con

stituting the record in this case contains over 600 pages of evidence, and we have examined it with a view to ascertain if there was one material fact in controversy in the issue upon which there was not sufficient evidence on either side to clearly warrant the application of the rule of non-interference of the appellate court where there is a substantial conflict in the evidence. If we were to accept the rule insisted upon by appellant, that "if the great preponderance of evidence is against the findings or verdict the court should reverse it," (which we do not accept as a correct rule of action for the appellate court,) we fail to find in the mass of testimony pro and con, on each of the contested propositions involved in this case, that "great preponderance" which would bring our action within such a rule. Even that rule would not warrant our interference with this judgment. The issues were plainly and squarely presented by the pleadings at the trial, and the too-frequent conflict of "expert testimony" is more apparent than the conflicting testimony of non-professionals on the material facts involved. The case is clearly within the well-established rule that a judgment based upon a verdict where there is a substantial conflict in the evidence should not be disturbed by the appellate court. Union Pac. Ry. Co. v. Diehl, 33 Kan. 422, 6 Pac. 566; Pringle v. Spaulding, 53 Barb. 21; State v. Yellow Jacket S. M. Co., 5 Nev. 415; Kimball v. Gearhart, 12 Cal. 48; Farrell v. Enright, 12 Cal. 452; Richardson v. McNulty, 24 Cal. 348; Iburg v. Suanet, 47 Cal. 267; McMurray v. Basnett, 18 Fla. 609; Gower v. Quinlan, 40 Mich. 572; Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668.

The alleged misconduct of the jury appears by the record to have been carefully and thoroughly investigated by the court below on the motion for a new trial. We concur in the conclusions arrived at by that court. While it is true that the jury "were feasted and wined" at the dinner ordered by the sheriff, by the agreement of both plaintiff and defendant, (a proceeding which the officer in charge of the jury ought not to have permitted, even by consent of both parties,) we are yet unable, after reading the many affidavits bearing upon the question of the alleged intoxication of members of the jury, to come to the conclusion that any of them indulged

in liquors to the extent of intoxication, or that, by reason of the eating and drinking by the jury, at the joint expense of the parties, the jury, or any member thereof, was unfitted for the intelligent, fair, and impartial performance of duty. That intoxication would disqualify a juror from the performance of his duty, and amount to misconduct, there can be no question; and while it is true that there is some evidence from which the fact of the use of liquor by the jury other than that drank at the supper table may be legitimately inferred, much of the showing to impeach the verdict was speculative, and of a character not commending itself to our confidence. We cannot find from the evidence that any juror was intoxicated, or under the influence of liquor. The plaintiff and defendant prepared the feast and inaugurated the festivities. Neither can be heard to complain of the act and performance which they jointly inaugurated, without proof of intoxication to the extent of disqualifying the jury, or some members thereof, for a proper discharge of duty. The rule is well established that courts will not disturb a verdict when satisfied that intoxicating liquors had no influence upon the jury, and we are satisfied on that point in this case. Jones v. People, 6 Colo. 452, 45 Am. Rep. 526; State v. Jones, 7 Nev. 408; Richardson v. Jones, 1 Nev. 406; Kee v. State, 28 Ark. 165; State v. West, 69 Mo. 401. 33 Am. Rep. 506; State v. Sparrow, 3 Murph. 487; Pittsburg, etc., Ry. Co. v. Porter, 32 Ohio St. 333; People v. Lyle, Cal. 4 Pac. 977; May v. People, 8 Colo. 210, 6 Pac. 816.

The charge of the court, including the instructions asked and given, taken as a whole, gave the law fairly and correctly to the jury. We find no valid ground for a reversal. The judgment and order of the court below denying the motion for a new trial are affirmed.

Fitzgerald, J., concuring.

Pinney, J., having tried this case in the court below, took no part in the decision.

[Civil No. 135. Filed September 3, 1885.]

[S. C. sub. nom. Cullum v. Paul, 8 Pac. 187.]

R. H. PAUL, Defendant and Appellant, v. H. B. CULLUM, Plaintiff and Respondent.

1. ASSIGNMENT FOR BENEFIT OF CREDITORS-EVIDENCE

OF TITLE AS

ASSIGNEE ADMISSIBLE THOUGH SUING IN PERSONAL CAPACITY-PARTIES ASSIGNEE MAY SUE EITHER IN PERSONAL OR REPRESENTATIVE CAPACITY TO RECOVER PROPERTY REDUCED TO POSSESSION FROM THIRD PARTY WRONGFULLY DEPRIVING HIM OF SAME.-Certain evidence of title in plaintiff as assignee held admissible in action of replevin though plaintiff sued simply in his individual capacity. Where an assignee has taken possession of the personal property conveyed to him by a deed of assignment, and has been wrongfully deprived thereof by a third party, he may sue for its recovery either in his personal or representative capacity.

2. SAME-PRESUMPTIONS- -WITHOUT PROOF OF CREDITORS DISSENT THEIR ASSENT PRESUMED.-In the case of a general voluntary assignment for the benefit of creditors without preference, and without restrictions, in the absence of proof of dissent, the law presumes the assent of the creditors to the assignment.

3. APPEAL AND ERROR-NECESSITY FOR MOTION FOR NEW TRIAL-F|NDINGS WILL NOT BE REVIEWED WITHOUT-FINDINGS ON SAME FOOTING AS VERDICT OF JURY-PRACTICE TO OBTAIN REVIEW OF QUESTION OF WANT OR INSUFFICIENCY OF EVIDENCE TO SUPPORT Judgment.The findings of the court below will not be reviewed on appeal unless there is a motion for a new trial. Federico v. Hancock, 1 Ariz. 512, 25 Pac. 650, cited and approved. Findings by the court stand on the same footing as the verdict of the jury. When a party complains that the evidence was insufficient to justify a verdict or decision the appropriate remedy is by motion for a new trial. If the verdict or written findings support the judgment so long as they remain undisturbed the judgment cannot be assailed on the ground that it is not justified by the evidence. Before the judgment can be attacked on this ground the verdict or finding must be set aside because not justified by the evidence and this can only be done on motion for new trial. In the absence of motion for a new trial findings are conclusive and binding on this court.

4. SAME-FINDINGS-WHERE ATTACKED FOR WANT OF EVIDENCE RECORD MUST PURPORT TO CONTAIN ALL THE EVIDENCE.-When the statement on appeal does not purport to contain all the evidence an

appellate court will not consider an objection that the findings are not supported by the evidence.

5. SAME JUDGMENT-CLERICAL ERROR NOT PREJUDICIAL TO APPELLANT,

-Where the judgment shows a clerical mistake not prejudical to appellant judgment will be affirmed.

REHEARING DENIED July 9, 1886.

AFFIRMED.—132 U. S. 539, 10 Sup. Ct. Rep. 151, 33 Law Ed. 430.

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. Affirmed.

The facts are stated in the opinion.

Ben Morgan, for Appellant.

So absolutely unwarranted by the evidence are the findings of fact that a brief statement is all we deem to be necessary in order to insure a reversal of the judgment.

The court finds as material facts upon which its judgment rests that the assignment made by Lord and Williams Company was executed in the firm name by W. W. Williams, when the instrument shows it was executed on behalf of that firm by C. E. Harlow; that Lord & Williams, on the 25th day of October, 1881, made an assignment of all their property to the plaintiff, H. B. Cullum, when no evidence was offered to establish such fact, and plaintiff's counsel expressly disclaimed title to the property from any such source. That Cullum was the owner of the property attached on the day the attachment was levied, in the face of the testimony that at that time it was not the property of his assignors but the defendant's in the suit of Thompson v. Lord & Williams.

Cullum was not a purchaser for value, and all defects in his grantor's title could be urged against his. If they could not defend as bona fide purchasers for value plaintiff must fail.

In order to render judgment for the plaintiff the court was forced to find that the taking in of Harlow as a partner ipso facto dissolved the old firm of Lord & Williams in the