avoided by reversing it at the cost of the plaintiff in error, and sending
the cause back to the Circuit Court, with directions to proceed therein
according to law. Murdock v. Ward, 139.

2. After the company had once excepted to the refusal of an instruction
which it had asked, and excepted to those which were given, it did not
lose the benefit of such exceptions by a request that the court repeat
the instructions excepted to, in connection with certain answers made
to questions propounded by the jury. Mutual Life Insurance Co. v.
Phinney, 327.

PUBLIC LAND.

1. Whenever the invalidity of a land patent does not appear upon the face
of the instrument, or by matters of which the courts will take judicial
notice, and the land is apparently within the jurisdiction of the land
department as ordinary public land of the United States, then it would
seem to be technically more accurate to say that the patent was voida-
ble, not void. Moran v. Horsky, 205.

2. The right of one who has actually occupied public land, with an intent
to make a homestead or preëmption entry, cannot be defeated by the
mere lack of a place in which to make a record of his intent. Tarpey
v. Madsen, 215.

3. The law deals tenderly with one who, in good faith, goes upon public
lands, with a view of making a home thereon. Ib.

4. When the original entryman abandons the tract entered by him, and it
comes within the limits of a grant to a railroad company, a third party,
coming in after the lapse of many years, and setting up the title of
that entryman, does not come in the attitude of an equitable appel-
lant. Ib.

5. A proper interpretation of the acts of Congress making railroad grants
like the one in this case requires that the relative rights of the company
and an individual entryman must be determined, not by the act of the
company, in itself fixing definitely the line of its road, or by the mere
occupancy of the individual, but by record evidence, on the one part
the filing of the map in the office of the Secretary of the Interior, and,
on the other, the declaration or entry in the local land office; and while,
as repeatedly held, the railroad company may not question the validity
or propriety of the entryman's claim of record, its rights ought not to
be defeated long years after its title had apparently fixed, by fugitive
and uncertain testimony of occupation. Ib.

6. An applicant for public land under the act of Congress of June 3, 1878,
29 Stat. 89, c. 151, known as the Timber and Stone Act, must support
his application by an affidavit stating that "he does not apply to pur-
chase the same on speculation, but in good faith to appropriate it to his
own exclusive use and benefit; and that he has not, directly or indi-
rectly, made any agreement or contract, in any way or manner, with
any person or persons whatsoever, by which the title which he might
acquire from the Government of the United States should inure, in
whole or in part, to the benefit of any person except himself; which
statement must be verified by the oath of the applicant before the reg-

ister or receiver of the land office within the district where the land is
situated." The same act provides: "If any person taking such oath
shall swear falsely in the premises, he shall be subject to all the pains
and penalties of perjury, and shall forfeit the money which he may
have paid for said lands, and all right and title to the same; and any
grant or conveyance which he may have made, except in the hands of
bona fide purchasers, shall be null and void." Hawley v. Diller, 476.
7. An entryman under this act acquires only an equity, and a purchaser
from him cannot be regarded as a bona fide purchaser within the mean-
ing of the act of Congress unless he become such after the Government,
by issuing a patent, has parted with the legal title. Ib.

8. A construction of the above act long recognized and acted upon by the
Interior Department should not be overthrown unless a different one
is plainly required by the words of the act. Ib..

9. The result of the decisions of this court in relation to the jurisdiction of
the Land Department when dealing with the public lands is as follows:
(1) That the Land Department of the Government has the power and
authority to cancel and annul an entry of public land when its officers
are convinced, upon a proper showing, that the same was fraudulently
made; (2) that an entryman upon the public lands only secures a
vested interest in the land when he has lawfully entered upon and
applied for the same, and in all respects complied with the require-
ments of the law; (3) that the Land Department has control over the
disposition of the public lands until a patent has been issued therefor
and accepted by the patentee; and (4) that redress can always be had
in the courts where the officers of the Land Department have withheld
from a preëmptioner his rights, where they have misconstrued the law,
or where any fraud or deception has been practiced which affected
their judgment and decision. Ib.

10. The principle reaffirmed that where the matters determined by the Land
Office "are not properly before the Department, or its conclusions
have been reached from a misconstruction by its officers of the law
applicable to the cases before it, and it has thus denied to parties
rights which, upon a correct construction, would have been conceded
to them, or where misrepresentations and fraud have been practiced,
necessarily affecting its judgment, then the courts can, in a proper
proceeding, interfere and control its determination so as to secure the
just rights of parties injuriously affected." Ib.

11. Sections 2450 to 2457 inclusive of the Revised Statutes, relating to sus-
pended entries of public lands and to suspended land claims, and which
sections require certain matters to be passed upon by a Board consisting
of the Secretary of the Interior and the Attorney General, construed
and held to apply only to decisions of the Land Office sustaining irreg-
ular entries, and not to decisions rejecting and cancelling such entries
under the general authority conferred upon the Land Department in
respect to the public lands. Ib.

RAILROAD.

1. The wife of the defendant in error, while travelling from Louisville to

Washington on a through ticket, in a car of the plaintiff in error, and
on a train conducted by his agents, was run off the track and down a
bank in consequence of the weakness of a wheel which might have
been known, and suffered a serious and lasting injury, for which an
action was brought to recover compensation. The defence set up that
at the time the accident happened the train was managed by a Con-
necticut company to whom the road had been leased. Held, that that
fact would not bar a recovery; that if notwithstanding the execution
of the lease the plaintiff in error, through its agents and servants,
managed and conducted and controlled the train to which the accident
happened, it would be responsible for that accident. Chesapeake &
Ohio Railway Co. v. Howard, 153.

See CONSTITUTIONAL LAW, 5.

REMOVAL OF CAUSES.

1. The decision in Fisk v. Henarie, 142 U. S. 459, followed to the point that
the words in the act of March 3, 1887, 24 Stat. 552, with regard to the
removal of causes from a state court, (as corrected by the act of Au-
gust 13, 1888, c. 866,) "at any time before the trial thereof," used in
regard to removals "from prejudice or local influence," were used by
Congress with reference to the construction put by this court on simi-
lar language in the act of March 3, 1875, c. 137, 18 Stat. 470, and are to
receive the same construction, which required the petition to be filed
before or at the term at which the cause could first be tried, and before
the trial thereof. McDonnell v. Jordan, 229.

2. This was an ordinary action, under a state statute, for wrongfully caus-
ing the death of plaintiff's intestate, in which no Federal question was
presented by the pleadings, or litigated at the trial, and in which the
liability depended upon principles of general law, and not in any way
upon the terms of the order appointing the receivers; and whatever
the rights of the receivers might have been to remove the cause if they
had been sued alone, the controversy was not a separable controversy
within the intent and meaning of the act of March 3, 1887, as corrected
by the act of August 13, 1888, and this being so, the case came solely
within the first clause of the section, and it was not intended by Con-
gress that, under such circumstances, there should be any difference
between the rule applied under the first and second clauses of the act.
Chicago, Rock Island and Pacific Railway Co. v. Martin, 245.

On the facts as detailed in the opinion of the court, it is held that there
was no error in the decree of the court below. Castner v. Coffman, 168.