the courts. The question has been presented in various ways and forms under acts, so far as this question is concerned, precisely like the acts in question. In the following cases: Schulenberg v. Harriman, 21 Wall. 44; Railroad Co. v. U. S., 92 U. S. 733; Railway Co. v. Railway Co., 97 U. S. 491; Railroad Co. v. Baldwin, 103 U. S. 426; Grinnell v. Railroad Co., Id. 739; Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. Rep. 985; Rutherford v. Greene's Heirs, 2 Wheat. 196,-the supreme court of the United States have held that the title granted was a perfect legal title in præsenti, as distinguished from an equitable or inchoate interest arising upon a contract or promise of the government. The appellant relies upon Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 Wall. 444; Railroad Co. v. Traill Co., 115 U. S. 600, 6 Sup. Ct. Rep. 201. The latter case is in seeming conflict with the cases first cited. In an opinion recently rendered by Judge FIELD, sitting in the district court, (Denny v. Dodson, 32 Fed. Rep. 899,) in holding that the grant under an act like the one in question granted the legal title in præsenti, and having his attention called to Railroad Co. v. Traill Co., supra, and its apparent conflict with the cases first cited, reasons that the conflict is only seeming, and not real, by showing that the question in the latter case presented for judgment was different, and only presented a question between the government and its grantee. We deem it unnecessary to cite the statute at length, or enter into any extended review of the subject. In the cases cited the whole subject is fully and elaborately discussed. The language of that act is "that there be, and hereby is, granted." We think it is now beyond controversy that, when the question is presented as it is here, where no right of the government reserved in the act making the grant is involved, it grants the legal title in præsenti to all the lands included in the grant, whether surveyed and selected or not.

The second point involves the construction of the language of the articles of amalgamation and incorporation. Do they contain apt and necessary words for the conveyance of the property in question? In each of the articles in the first in article 7, and in the second in article 1-is found substantially the following provisions: "And the said several parties, each for itself, hereby sells, assigns, transfers, grants, bargains, releases, and conveys to the said new and consolidated company and corporation, its successors and assigns, forever, all its property, real, personal, and mixed, of every kind and description; all its capital stock; all its interest in the shares of its capital stock subscribed, but not fully paid for; all credits, effects, judgments, decrees, contracts, agreements, claims, dues, and demands of every kind and description; and all rights, privileges, and franchises, corporate and otherwise, held, owned, or claimed by said parties of the first and second parts, or either of them, in possession or expectancy, either at law or in equity; subject, however, to all conditions, obligations, stipulations, contracts, agreements, liens, mortgages, incumbrances, claims, and charges thereon, or in anywise affecting the same." We cannot conceive of language more apt to effectuate the transfer, and we think it sufficient in form for that purpose. The claim that the property was not conveyed, because it was not shown to be property required for the purposes for which the corporation was organized, is, we think, as will presently be seen, immaterial; but, if it was, the acts granting the land declared the purposes for which it was granted, and provided the uses to which it should be put, which are declared to be the corporate purposes and objects of the grantee. Burke v. Smith, 16 Wall. 395. There was no proof of the laws of the state of California under which the various corporations claimed to be organized, and this gives rise to the third and last question. It will be observed that the plaintiff traces his title by mesne conveyances through the corporations. They are not parties to the record. Their existence and powers are not directly in issue, and the defendant is in no way in privity with them. Under such circumstances, the only proof

of corporate existence that is required is proof of the corporation de facto; and this was abundantly proved by the articles of incorporation. They were under the seals of the companies, respectively, and were duly signed, acknowledged, and proved. 2 Mor. Priv. Corp. 746, 750, 776-778. But it is said that there was no proof of the corporate existence de facto as to some of the constituent companies that entered into, and in part formed, the amalgamated companies. We are not prepared to say that the execution of the articles by them under their seals is not prima facie evidence of their existence de facto; but the fallacy of this claim will be seen by tracing this title in detail. The government conveyed this land to the Central Pacific Railroad Company of California. This conclusively proves the incorporation of this company, not only de facto, but de jure. The grant of real estate by the government to an association of individuals by any name denoting it as other than a natural person, thereby clothes it with corporate capacity to take, hold, and convey the same. Bing. Real Prop. 854. This company amalgamated with the "Western Pacific Railroad Company," and together they formed the Central Pacific Railroad Company, and the title was passed to the new company. Suppose, according to the contention of the appellant, that there is no proof of the existence of the Western Pacific Railroad Company, and that it is to be presumed that it did not exist, then the new company would be but a reincorporation of the Central Pacific Railroad Company of California, and would be its successor, with the title of the property transferred to it. The new incorporation thus formed again joined with various other companies in forming still another company. If it is to be presumed that the companies joining with it did not exist, then it is again but another reincorporation, with the title again transferred to the new company, and this company conveyed to the plaintiff. In other words, all the companies through which this title passed were shown to exist de facto, by articles of incorporation. The existence of these companies, their amalgamation and consolidation, is specially recognized by the act of congress of May 7, 1878, (20 St. 56,) and thereby, also, their existence is established de facto. But it is said that, without proof of the laws of California, there was no proof that the corporations were authorized by law to hold real estate at all, or to transfer it, or that it was within the purposes and objects for which they were incorporated. This it is not necessary to show. Transfers of property to, and transfers by, corpora tions that have no such right or authority by law, are not void; they are only voidable, at the instance of the government, in a direct proceeding for that purpose. 2 Mor. Priv. Corp. 648-653, inclusive, 709-711, 746; 1 Devl. Deeds, § 121; Telegraph Co. v. Telegraph Co., 22 Cal. 398; Water Co. v. Clarkin, 14 Cal. 544; Bank v. Matthews, 98 U. S. 628; Leazure v. Hillegas, 7 Serg. & R. 313; Banks v. Poitiaux, 15 Amer. Dec. 706; Oil Co. v. Railroad Co., 32 Fed. Rep. 22. As to whether transfers to and by corporations that are expressly prohibited therefrom by positive legislative enactments are absolutely void as between third parties, the authorities differ, but the burden of showing that there is such prohibition is upon the party attacking the transfer. Burrill v. Bank, 35 Amer. Dec. 395. The question of authority on the part of the corporations was purely a collateral one in this case. The defendant was in no situation to attack their passed and fully-executed contracts; at least, without showing that they were wholly and absolutely void. Devl. Deeds; Water Co. v. Clarkin, Banks v. Poitiaux, supra. The rules are the same as to foreign corporations. The power and the right of a foreign corporation to hold and convey property is not to be determined under the laws of the home government under which they are organized, but it is to be determined by the laws of the government in which they are doing business, and in which they acquire the property. Runyan v. Coster's Lessees, 14 Pet. 122; Bank v. North, 4 Johns. Ch. 370; Lumbard v. Aldrich, 28 Amer. Dec. 381. This must be true, as the result of the rule that it is a question only between the

corporation and the government. If lands acquired by a foreign corporation are liable thereby to be forfeited to the government under which it is organized, a foreign government might, in this indirect way, acquire lands within the domain and jurisdiction of other governments, which might not be permitted. By the general comity which exists throughout the United States and territories, in the absence of positive prohibitions, corporations created in one state or territory are permitted to carry on any lawful business in any other state or territory, and to acquire, hold, and transfer property there, equally as individuals. If the policy of a state or territory does not permit the business of the foreign corporation in its limits, or allow the corporation to acquire or hold real property, it must be expressed in some affirmative way by the state or territory where the property is acquired. Cowell v. Springs Co., 100 U. S. 55. The deeds or transfers of these corporations, under their seals, properly affixed, and duly executed and proved, produced by the party claiming under them, is sufficient prima facie proof of title. Burrill v. Bank, supra. In Water Co. v. Clarkin, supra, the supreme court of California say: "It would lead to infinite inconveniences and embarrassments if, in suits by corporations to recover the possession of their property, inquiries were permitted as to the necessity of such property for the purposes of their incorporation, and the title made to rest upon the existence of that necessity." In that case the corporation was a party. Here, where the transaction is fully passed and executed, the reasoning applies with greater force. If the title to every piece of land which happened to be traced to and from a corporation was made to depend upon whether the corporation was duly and legally organized, strictly according to the laws of the government under which it claims existence, and as to whether the taking, holding, and conveying of the property was strictly within their corporate powers, and for their corporate purposes, it would tend to lessen the value of corporate franchises, and to impair the marketable value of lands thus situated by reason of the difficulties in determining the title.

Our attention is not directed to any error in the record, and the judgment should be aflirmed.

ZANE, C. J., and BOREMAN, J., concur.

(2 Idaho [Hasb.] 393)

MCGINNIS et al. v. FRIEDMAN.

(Supreme Court of Idaho. February 20, 1888.)

1. INJUNCTION-GROUNDS-APPREHENSIONS OF IMMEDIATE INJURY.

Where a party seeks relief by interlocutory injunction, he should show some clear legal or equitable right, and an apprehension of immediate injury to those rights. Where none such are shown, the injunction will be denied.

2. SAME-PROPERTY RIGHTS NOT INVADED.

Courts of equity will not interfere by injunction to prevent the commission of a crime where no property rights are invaded.

3. PUBLIC LANDS--PASTURAGE WITHOUT CLAIM OF TITLE-RIGHTS ACQUIRED.

The fact that a party has pastured the public lands of the United States without claim of title, or connecting himself therewith under some of the possessory acts, will not give a legal or equitable right to the pasture grown thereon. (Syllabus by the Court.)

Appeal from district court, Alturas county.

Action brought by Daniel McGinnis and others to restrain S. H. Friedman from pasturing sheep upon certain public lands of the United States used by the plaintiffs as a cattle range. The temporary injunction previously granted was dissolved by the district court, and from this order the plaintiffs appeal. Geo. H. Roberts and Vic Bierbower, for appellants. Bruner, Parsons & · Bruner, for respondent.

HAYS, C. J. This action was brought to restrain the respondent from herding, grazing, and pasturing his sheep upon certain public lands, the property of the United States. A temporary injunction was granted, and, the case coming on to be heard upon an agreed state of facts, the injunction formerly entered was dissolved, and from this order the appeal is taken to this court. It appears that the premises to which the injunction applied consists of a large tract of the public lands of the United States, only a part of which has been surveyed; one of the ranges being about fifteen miles long and five miles wide, as stated in appellants' brief. We are not informed as to the size of the other. These appellants have used said ranges for several years for the purpose of pasturing their cattle and horses on the same during the winter seasons; said ranges being very valuable for that purpose. The stock thus wintered upon said ranges is driven to other parts in the summer season. It is admitted that sheep, cattle, and horses will not thrive and prosper when on the same range; that sheep will thrive where cattle will not. Shortly before bringing this action, the respondent brought a large flock of sheep to this section of the country, and proposed to graze, pasture, and winter them on the ranges in controversy; whereupon this action was brought. It is claimed by appellants that they have a right to hold and use said grounds for winter pasture, and to exclude the respondent from pasturing his sheep thereon for two reasons: First, because of their priority of possession, they having enjoyed that privilege for several years past; second, because of the provision of the Revised Statutes of this territory, which is as follows: Sec. 6872. “Any person owning or having charge of sheep, who herds, grazes, or pastures the the same, or permits or suffers the same to be herded, grazed, or pastured, on any cattle range previously occupied by cattle, or upon any range usually occupied by any cattle-grower, either as a spring, summer, or winter range for his cattle, is guilty of a misdemeanor; but the priority of possessory right between cattle and sheep owners to any range is determined by the priority in the usual and customary use of such range, either as a cattle or sheep range.' Although the case was ably presented at the bar, and marked industry and ability have been shown by appellants in the preparation of their briefs, they fail to cite us to any case directly in point, and we presume none could be found sustaining their position. As a general rule, it is incumbent upon the party seeking relief by interlocutory injunction to show some clear legal or equitable right, and a well-grounded apprehension of immediate injury to those rights. This position is announced and abundantly sustained by 1 High, Inj. §§ 7, 9, 651, 652-698, and the cases there cited; Hil. Inj. 319. The appellants in this case do not pretend to connect themselves with the land by color of title, or to hold the same under any possessory claim or right, with a view of entering said lands under any of the general laws of the United States; hence we are unable to see that they have shown in themselves any clear legal or equitable right to the pastures grown upon the said lands. Such being the case, they would not be entitled to the equitable intercession of the court, and the injunction theretofore granted was rightfully dissolved.

The appellants claim, however, that they have held these ranges for several years, and therefore they hold the same now under an adverse possession, as to this respondent, from entering thereon with his sheep. We think a court of equity should not interfere to enforce such a claim by injunction, in view of the act of congress of February 25, 1885, (volume 23, U. S. St. at Large, p. 321,) which provides, in substance, among other things, that the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States without claim, color of title, or asserted right, as therein specified, is declared to be unlawful, and thereby prohibited. When we take into consideration the object, purpose, and spirit of that law, and the fact that appellants do not claim to hold by virtue of any of the possessory acts, but only by their right of prior possession, we think that said act of con

gress is a complete answer to all authorities cited and arguments urged upon that point. If, therefore, the action cannot be maintained because appellants have no legal or equitable title to the pasture in dispute, we think that the second ground urged, that the threatened act will be a violation of the Revised Statutes before quoted, is equally untenable; for it is a general rule that a court of equity has no jurisdiction to restrain or prevent crime, or to enforce a moral duty, except so far as the same is connected with the rights of property. The appellants having failed to show any property rights to the pasture, the exception to this general rule cannot be invoked by them.

Many reasons might be given in support of the correctness of the judgment in this case, but we think a further discussion of the subject unnecessary. Judgment of the court below is therefore affirmed.

BUCK and BRODERICK, JJ., concurring.

(11 Colo. 213)

ROBERTS v. PEOPLE.

(Supreme Court of Colorado. April 3, 1888.)

1. DISTRICT AND PROSECUTING ATTORNEYS-DISQUALIFICATION-APPOINTMENT OF SUBSTITUTE-GEN. ST. COLO. § 1058.

Gen. St. Colo. 1883, § 1058, provides that if the district attorney be interested or employed as counsel in a case which it was his duty to prosecute or defend, the court may appoint some other person in his place; and section 1059 provides that, if he be sick or absent, the court shall appoint some one in his stead. The district attorney asked to be excused from a case, as he had been "retained in another cause, the facts of which were somewhat interwoven with the facts said to be involved in this case," and that he had a good deal of state business in another court. Held, that a statutory ground existed for the appointment of a substitute.

2. CRIMINAL LAW-ELECTION OF COUNT-DISCRETION OF TRIAL COURT.

A motion to compel a prosecutor to elect upon which count of an indictment he will proceed, where the separate counts each charge a felony, is a matter within the discretion of the trial court; and, there being no abuse of this discretion, the appellate court will not interiere.1

3. SAME--EVIDENCE-EXTRAJUDICIAL CONFESSIONS.

An extrajudicial confession of crime is not sufficient to convict unless corroborated by other and independent evidence.2

4. LARCENY-EVIDENCE-IDENTIFICATION OF STOLEN GOODS.

On a trial for larceny of certain ores, the testimony of witnesses, who are familiar with the ores, as to their identification, is admissible, notwithstanding the absence of marked characteristics by which to identify them.

5. SAME-CIRCUMSTANTIAL EVIDENCE-PROOF OF GUILT.

Under an indictment for larceny, the evidence showed that defendant was employed in a silver mine; that he secretly agreed to supply ores to an assayer, who was to extract the silver, and divide the profits with him; that defendant delivered ores to the assayer at night; that defendant, when indicted, advised the assayer to leave the country. Samples of these ores were identified as coming from said mine, by witnesses familiar with ores of the mine. Defendant admitted that the ores came from the mine in question, but claimed that they were given him by a co-employe, whom also the evidence tended to implicate. Held, that the evidence was sufficient to warrant a conviction.

Error to district court, Lake county.

The indictment in this case contains two counts; charging Roberts, in the first, with the larceny of mineral ore of the value of $120, and in the second with breaking and severing ore, with intent to steal in the Forest City mine,

'As to when an election will be required, see Corley v. State, (Ark.) 7 S. W. Rep. 255, and note.

2That the simple confession or admission of the accused, without other proof of the corpus delicti, will not justify a conviction, and concerning the sufficiency of such corroborating testimony, see McClain v. Com., (Pa.) 1 Atl. Rep. 45, and note; People v. Jaehne, (N. Y.) 8 N. E. Rep. 374, and note; U. S. v. Bassett, (Utah,) 13 Pac. Rep. 237, and note; State v. Penny, (Iowa,) 30 N. W. Rep. 561, and note; Floyd v. State, (Ala.) 2 South. Rep. 683, and note. On the general subject as to when the corpus delicti is established, see People v. Palmer, (N. Y.) 16 N. E. Rep.