In their answer the defendants aver that plaintiff “has not complied with Section 5 of the Act of Congress, approved May 10,1872, entitled an ‘Act to promote the development of the mining resources of the United States,’ in not performing the labor or making the improvements on said claims as required by said Act.” Read in connection with the allegation as to entry and location on the part of defendants, this averment is to be treated as denied by plaintiff. Thus was created a material issue (Morenhaut v. Wilson, 52 Cal. 263), and the Court below failed to find upon it.

Judgment reversed and cause remanded for a new trial.