Mr. Chief Justice Murray and Mr. Justice Terry concurred.
The first charge to the jury, given by the Court, was clearly erroneous. Mining laws, when introduced in evidence, are to be construed by the Court, and the question whether by virtue of such laws a forfeiture had accrued, is a question of law. It was, therefore, improper to submit it to the determination of the jury.
The third instruction asked by the defendants was also improperly allowed. There was no issue, under the pleadings, which involved the question of the jurisdiction of the Court, and that question ought, therefore, not to have been left to the jury. As the pleadings stand, the verdict would operate as a complete bar to any subsequent action by the plaintiff; whereas if, upon proper pleadings, the finding against him was the result of want of jurisdiction in the justice of the peace, he would still have his right of action in the District Court.
For these reasons the judgment is reversed, and the cause remanded.