I. It is settled that prior to the passage of the Act of the 13th of April, (Stat. 1860, p. 175), title to a mining claim would pass by a verbal sale, if accompanied by an actual transfer of the possession. This doctrine was first suggested in Jackson v. The Feather River Water Company, 14 Cal. 18, and formally announced in Table Mountain Tunnel Company v. Stranahan, 20 Cal. 198. It was subsequently affirmed in Gatewood v. McLaughlin, 23 Cal. 178, and in the present case when here on a former appeal (23 Cal. 575.) In the case of The Copper Hill Mining Company v. Spencer et al., 25 Cal. 18, we held that this rule applies only to cases where the vendor is in the actual possession and can deliver it to the vendee, and not to cases where there is an adverse possession in a third party. But in neither of these cases was the effect of the Act of I860 considered. The question is important. Does not that Act preclude verbal sales, and require them to be made in writing? Prior to its passage it is well settled that a written instrument was not necessary. Unless a change in that respect was desired no legislation was needed. Yet the Act was passed, and it was provided that “ conveyances of mining claims may be evidenced by bills of sale,” etc. Does not “ may” mean must or shall ? The first section of the Act concerning conveyances provides that “ conveyances of lands or of any estate or interest therein may be made,” etc. Here the word “ may” means must or shall, and, if so, why is not the same true of the former ? It may be doubted whether the rule in Table Mountain Tunnel Company v. Stranahan is not entirely abrogated by the Act of 1860 ; but we reserve the question, since its determination is not necessarily involved in this case.
By the second section the operation of the Act was limited to gold mines, and did not therefore embrace mines of the character of the one in suit. It is true this section was repealed in 1863 (Statutes, p. 98), and the operation of the Act thereby extended to all kinds of mines; but the sales *364from Callahan to Blatchly, and from the latter to the defendant, were made whi^e the second section was still in force, and hence their validity must be determined by the rule in Table Mountain Tunnel Company v. Stranahan. Under the law, therefore, applicable to this case, the sales from Callahan to Blatchly. and from the latter to the defendant were good, and passed the title, if accompanied by a transfer of the possession, if merely verbal, which, however, as will be seen hereafter, does not seem to have been the case with the former.
II. The defendant having alleged in his answer that the sale from Callahan to Blatchly was in writing, it is claimed that the defendant was thereby precluded from proving a verbal sale. In this respect we think the learned counsel for the appellant is in error. The allegation, so far as it avers that the sale was by a written instrument, is an averment of the evidence of the fact of sale, and would have been stricken out on motion for that reason. (Green v. Palmer, 15 Cal. 411.) It so far presented no issue. The only issue made by the allegation was as to the fact of sale. How the sale was made, whether by word of mouth or by a written instrument, was merely a matter of evidence and not an issuable fact. If the sale was, in fact, evidenced by a written instrument, the defendant was undoubtedly bound to prove it by producing the instrument, but not because of any rule of pleading, but because of the rule of evidence which requires the production of the best evidence of which the nature of the case admits. Suppose that at the time the answer was prepared the defendant was informed and believed that the sale was made in writing, but it subsequently and upon further inquiry turned out that the defendant was mistaken, and, in fact, the sale was a verbal one, would the defendant have been precluded, by its false avérment that it was in writing, from proving the verbal sale ? Undoubtedly not, for whether it was in writing or not, is not material, and only affects the mode of proof; for the averment that it was in writing might be stricken out without leaving the answer insufficient, which is the test, *365whether the matter alleged is material or not. The question as to the defendant’s right to introduce parol evidence of the sale could be made only upon demurrer to such evidence when offered, and in the solution of that question the pleadings could not be consulted as conclusive.
III. But it appears from the evidence of the defendant that there was a written bill of sale. The defendant was therefore bound to produce it or establish its loss before resorting to oral testimony. This was not done, and the Court erred in overruling the plaintiff’s objection to the oral testimony for that reason. (Crary v. Campbell, 24 Cal. 634.) The testimony shows that the bill of sale was in the possession of defendant’s witnesses and counsel at the former trial of the case. Bean testifies that he then and there, while on the witness stand as a witness, delivered it to A. P. Dudley, of counsel for defendant. Dudley testifies that he delivered it to Bean or Mandeville, and he thinks the former. Bean, however, on being recalled, stated that it was not redelivered to him by Dudley. Both Bean and Dudley stated that they had made thorough search among their papers but could not find it. Here the showing as to the loss stops, and is manifestly insufficient. It leaves the missing document in all probability in the possession of Mandeville, who was not called upon to give an account of its further fate. Mandeville being the last person shown to have it in his possession, inquiry should have been made of him in order to lay a foundation for the introduction of secondary evidence as to its contents.
It will not do to say that the bill of sale was not the act of Callahan, because Bean, who executed it as his attorney in fact, only had a verbal power, and also acted as the agent of Blatchly in negotiating the sale with Callahan. A verbal power was sufficient to authorize Bean to sign Callahan’s name to an instrument of that character, and Callahan having agreed in person upon the terms of the sale it cannot be said that Bean was representing both buyer and seller.
There having been a bill of sale, the question as to whether *366there was a change of possession within the rule in Table Mountain Tunnel Company v. Stranahan as to verbal sales becomes immaterial. But in view of the fact that another trial may be had, we deem it proper to say that the possession of the company was the possession of each of its members, and the withdrawal of Callahan from' any further participation in the affairs of the company and Blatchly’s taking his place and representing the interest or share in question was all the change of possession which could take place under the circumstances of the case, and satisfies the rule in Table Mountain Tunnel Company v. Stranahan. '
Before leaving the case it is proper to add that, as to the fact whether Callahan gave Bean verbal power to sign his name to the bill of sale, the testimony is conflicting. Bean testifies that he did, but Callahan testifies that he did not. The Court did not find the fact directly either way. But Bean was a witness for the defendant, and the defendant was therefore bound by his statement on the question of primary and secondary evidence. At the trial counsel for the plaintiff seem to have been more or less under the influence of cross purposes. It seems to have been claimed that the defendant must produce the bill of sale, and yet, that if it was produced, it would prove nothing, because Bean had no power to execute it for Callahan; which apparent inconsistency is, in part, explained by the fact that they also claimed that a verbal sale would not pass the title, and hence if the bill of sale was void for want of power in Bean, the defendant’s title would fail. If Bean had no power, the bill of sale was not the act of Callahan, and there was but a verbal sale, and it was competent for the defendánt to prove it as such, without any showing as to the bill of sale. It being now determined that a verbal sale would pass the title, on another trial counsel must take one horn or the other of the dilemma. There either was a bill of sale which passed the title or there was not; and whether there was or not depends, as the evidence now stands, upon the fact whether there was a verbal power from Callahan to Bean to execute it in his name. Counsel will not be allowed *367to claim that there was a bill of sale, but no power in Bean to make it.
Judment reversed and a new trial ordered.