Opinion by
Beattt, J.,full Bench concurring.
The facts of this case are as follows: The plaintiffs, Smith and Gottschall, with eleven others, took up a mining claim in 1859. The notice of location contained thirteen names, but claimed fourteen shares of three hundred feet each. One extra share was claimed as a discoverer’s right. Subsequently these locators and their successors in interest were incorporated under the name of the North American Mining Company. It was provided one share of stock should be issued for each foot of ground located; or in other words, four thousand two hundred shares of stock were to be issued to the stockholders, each receiving in proportion to the ground lie held. The mining ground was all conveyed to the corporation or its trustees and stock issued to claimants. The plaintiffs claim they are entitled to a larger share of stock than they have received. They aver that Gottschall was the discoverer of the ledge, and in right of discovery was entitled to the extra share of three hundred feet. That Smith, by virtue of an agreement between them, was interested to the extent of one-half in the same.
The answer denies that Gottschall was the discoverer or entitled to the three hundred feet by reason of being the discoverer, and avers that he and Smith had each received the full share of stock to which they were entitled. On the trial it was attempted to be shown by the defendant that Gottschall was not the discoverer, and if he was, that he waived his right as such in favor of the company, and that the discoverer’s share was equally divided out among the thirteen locators.
*427The Court below find in effect that Gfottsehall was the first discoverer. That he had not waived his right, and was not estopped from asserting it. That the discovery claim had been improperly divided among the different stockholders, giving Smith and Gottschall each one-thirteenth, when they were each entitled to one-half of the discovery claim, and decreeing that the company should issue to them a sufficient number of shares to make, with what they had already received, the entire three hundred feet, less a few feet which had been used for the common benefit of the corporation. The defendant appeals from this judgment, and raises various points of error. That the commission under which a deposition was taken and read, was insufficient; that a motion for non-suit was improperly overruled ; that testimony as to a mining custom was improperly received; that the Court erred in various rulings as to admission and exclusion of testimony, etc.; and finally, that the findings were against the weight of testimony.
The commission was issued in accordance with a previous order of the Court. It was attested by the certificate of the Clerk and under the seal of the Court. We think it is in compliance with the statute.
The motion for non-suit was properly overruled. The testimony as to a mining custom was properly admitted. Such customs under our statute may be proved, however recent the date or short the duration of their establishment. The common law doctrine as to customs does not govern in such cases. The rulings of the Court as to the admission and rejection of testimony were, we think, right, with perhaps one exception, which we will hereafter notice.
As to the point made that the findings are against the weight of testimony, we can only say that the evidence that Gottschall was the discoverer of -the mine is not as satisfactory as could be wished. We would suppose that clear and indisputable evidence might be brought as to a fact of this kind. Nevertheless there is sufficient evidence to justify the finding that he was the discoverer. If it once be admitted that he discovered the claim, and was by right of discovery entitled to the fourteenth share of three hundred feet, then he could *428only lose that right by some clear and positive evidence of having divested himself thereof.
The only evidence offered to this effect is, that at a meeting of the proprietors about the time of the incorporation,- the question was raised as to what was to be done with the discoverer’s share. One witness says Gottschall agreed to let it be divided among the entire company; another says he objected to such division and claimed it for himself and Smith. There are some other slight circumstances tending to show he might have known that the company claimed this fourteenth share as the common property of the company. "We think such evidence does not show that Gottschall ever divested himself of his claim to the three hundred feet, or that he is in any manner estopped from claiming them. We are satisfied with the finding of the Court below.
During the progress of the trial the defendant offered to prove that the entire four thousand two hundred shares of stock had been issued, and consequently no new stock"could be issued to plaintiffs without extending the limit of shares fixed by the constitution of the company. This evidence was rejected by the Court. This ruling and the form of the decree present the real difficulties of the case. We are satisfied that when a corporation lias issued certificates of stock (which are valid and not void) to the full extent of all the shares, which, by law and the constitution of the company, it may issue, no Court can order the issuance of other shares, because in that respect the powers of the corporation have been exhausted. (See Mechanics’ Ba/nk v. New York and New Haven R. R. Co., 3 Kernan’s Reports, 599.)
The first question, then, to be determined is, were the certificates issued to the locators other than Smith and Gottschall for their supposed proportion of the discoverer’s share absolutely void, or were they valid certificates issued to the wrong parties.
If void, then the ruling and decree are right, and the judgment must be affirmed. If, however, these certificates are not void, then the plaintiffs are entitled to a different remedy. They must be entitled to a pecuniary compensation from the company, or else .to a remedy against the other locators who received more stock than they were entitled to.
*429Again, wbat is the extent of tlie remedy to which they are entitled ? If they receive stock from other locators, must they not refund any assessments paid by those to whom the stock was issued? If they receive pecuniary compensation from the corporation, are they to receive the full value of the stock, or its value less the amount of assessments paid or payable, on the same ? These are most important questions, not merely in this case but tó all mining corporations. Doubts must frequently arise as to how many shares particular individuals are entitled in mining corporations; mistakes must frequently be made in issuing shares. It is highly important to have some fixed rule as to how these mistakes are to be corrected. "Who are to be made parties to a bill for that purpose ? "What is to be the nature of the relief alforded ? Before determining this case we wish to hear argument on the points suggested. "We are not only willing to hear argument from the counsel iu this case, but also from the counsel of other mining companies who are interested in the question.
"We shall order the case on the October calendar for further argument on the points suggested.