tation of the constitution places it. If the correct conclusion to be drawn from this divison of the powers of government by the constitution admitted of any real doubt, it is now too late to change the contemporaneous and long continued construction heretofore given it by the three departments of the government, tacitly sanctioned by the action of the several conventions by whom our different constitutions have been framed, and the concurrent usage and construction, legislative, executive and judicial, in all of our sister states. The practical interpretation so long and so uniformly observed and held here and elsewhere must still be maintained and followed. Political and executive acts which are committed to official discretion and determination must be subject to political enquiry alone, and not to judicial cognizance, while in respect to those of a different character, which involve no discretion, the courts may inquire, and enforce their performance by mandamus. But there is in fact no conflict in the powers conferred upon the different departments to execute the law. To discharge and fulfill the duties required by the functions of office, is one thing; to enquire, expound, interpret and decide the law and enforce obedience to it, is altogether another. The first is clearly an executive or administrative duty, the second judicial.

It can with much less propriety be said that the court by the exercise of jurisdiction in such cases interferes with the executive department, than does an executive officer who refuses to obey a plain command laid on him by the legislature, or a judgment pronounced by the court interfere with the constitutional functions of the legislative and judicial departments.

The right to a patent, as between conflicting locators, it must be admitted, is a legal right founded in and secured by law, and should be ascertained and determined by its proper construction and application. But is there no remedy for the refusal of such rights? If so, how and where is it to be asserted? Is its final determination committed to the commissioner? If so, is he not entrusted with judicial functions? Should it be said, the issuing of the patent is an executive act, which does not determine the conflicting rights of the parties, but this must be done by a resort to the courts after the patent has issued, then I ask, if the court may review the action of the commissioner, cancel and annul the patent, and require him to issue another, or divest the title out of the party who he has decided was entitled to it, and vest it in another? Who administers his office? The commissioner or the court who controls his action or moulds it to conform to its decision? Is it any greater interference with his executive function for the court to interpret the law and settle the conflicting rights of the parties so that the commissioner may properly discharge his executive duty, by issuing a patent to the party legally entitled to it, than afterwards to review and set aside his decision?

If after the commissioner acts, recourse is had to the court for redress, the evidence to establish the right claimed is on file, or of record in his office. The law says, certified copies shall be received as evidence. But suppose the commissioner, believing the court has no jurisdictional authority to interfere with his official determination, should, for this or any other reason, refuse to furnish a copy when demanded? Is there no legal remedy? Is this not an official duty the performance of which may be enforced by the courts? D'Oyle's case, 1 Brevard, 238.

With more show of reason may it be claimed that the judiciary cannot set aside an act passed by the legislature, because it believes such act unconstitutional. Why should it? The legislature is an independent department of the government; it is not inferior to the judiciary; it should have the same right to judge of its constitutional powers and functions as the latter; it must be presumed to be equally competent and honest; if it errs, the people can correct its error; responsibility must rest somewhere; if the court can set aside its action, and the legislature will not yield, conflict may ensue. Yet at this day who doubts that the right and duty of doing this is a part of the judicial power conferred by the

constitution upon the court? And experience proves the exercise of this power by the court, like that of enforcing obedience to the law by executive officers in matters wherein they are entrusted with neither judgment nor discretion, tends, not to discord, but to produce harmony and unity of action in all the departments of the government. A contrary rule would enable a single subordinate officer of the executive department to thwart the legislative will, obstruct the judiciary, and defy the chief executive officer of his own department. Surely no peculiar theory of government, the exigency of no particular case, should induce us to follow an interpretation which leads to such results. I am therefore of opinion that the proposition announced in the opinion to which I have referred, "that the district court has not the power and authority under the constitution to compel an officer of the executive department of the government to perform an official duty," in the broad and unqualified terms in which it is laid down, cannot be maintained, and furnishes no reason for the dismissal of this case.

The facts presented in the petition would, in my opinion, under the rulings of this court in other cases, warrant a mandamus, if the land for which patent is demanded had been subjected to location at the time appellee sought to appropriate it. If a party has a clear legal right to a patent, although this clear legal right may, to a certain extent, be dependent upon antecedent questions of law, it has been held the right may be settled in a proceeding of this character. Com'r G. L. O. v. Smith, supra; Bay City v. State Treasurer, 23 Mich 500.

Without wishing to be understood as concurring in the entire argument presented in the opinions of the court heretofore rendered, I conclude by saying that I concur in the conclusion reached, that the land in question had been severed from the maps of the public domain, and was not open to location at the date of appellee's file, and the motion for a rehearing should therefore be

overruled.

I am authorized to say that Mr. Justice Gray, who was on the bench when the motion was argued, and participated to some extent in its examination, expressed his concurrence, before his resignation, in this disposition of the motion.

Bankrupt Act, Sec. 22-Fraudulent Proof of Debt -Effect on Right of Dividends.

THOMAS B. MARRETT, ASSIGNEE IN BANKRUPTCY OF BAKER, SURVIVING PARTNER OF ATTERBURY, BAKER & CO., APPELLANT, v. EDWARD J. C. ATTERBURY, APPELLEE.

United States Circuit Court, District of Minnesota, December. Term, 1874.

Appeal in bankruptcy:-A motion was made in the district court, by the assignee in bankruptcy of John W. Baker, surviving partner of Atterbury, Baker & Co., that the proof of the claim or debt of Edward J. C. Atterbury be declared fraudulent as to creditors, and that no dividend be paid thereon. This motion was resisted by the said E. J. C. Atterbury. The claim of said Atterbury, as filed and proved against the estate, was for the sum of $19,155 25, for moneys advanced to the firm at various times from December 30, 1872, to April 13, 1873, as per statement or account annexed to claim. The claimant swore to the correctness of his entire claim in making proof of his debt, and that he held only a note for $10,000 and for $363. The district court found, upon the

testimony, that the first $10,000 of the amount claimed by E. J. C. Atterbury was intended as an advance to his son (the deceased member of the firm of Atterbury, Baker & Co.), and not provable as against creditors, and that the note for $363, interest thereon, fell in the same category. The district court held that the subsequent advances by the father were made to the firm as loans, and that court, accordingly, made an order reducing the amount of E. J. C. Atterbury's claim to $9,155 25, and allowing it to stand as a valid claim against the estate to that extent. As Baker, the survivng partner, had given his note for the controverted amount of $10,ooo, and had placed the entire claim for $19,155 25 in the schedule of firm debts, the district court did not, under the circumstances, consider the claim of E. J. C. Atterbury as one so founded in fraud as to taint and vitiate it entirely, and accordingly allowed the amount which was loaned, $9,155 25, to stand as a claim against the estate, and rejected the balance, as having been made as an advance or gift by the claimant to his son.

The following is the opinion of the district judge: NELSON, J.-I think the evidence fully establishes the fact that there should be a dimunition of the debt proved by E. J. C. Atterbury. Although he held the note of the firm of Atterbury, Baker & Co., for $10,000, given in January, 1873, it clearly appears that so far as the other creditors of the late firm are concerned, it cannot be considered as a valid claim, entitled to be entered on the list of debts recorded for dividends. This creditor had many times previous to the execution and delivery of the note to him, informed the other creditors of the firm that the amount specified in this note, and for which it undoubtedly was given, had been advanced to his son, who was a member of the late firm of Atterbury, Baker & Co., as capital to carry on the business. Now he cannot be permitted to assert any claim against the assets at this time, even upon the theory that they considered their financial condition so improved as to justify their consent to a withdrawal of this capital at any time, and had executed a note for it payable on demand. Baker, the surviving partner, in making up his schedule, has placed the note among the debts of the firm, and in his testimony states that he consented to the execution and delivery of it to the creditor. I think, therefore, under these circumstances, it cannot be considered as a claim founded in fraud, which should taint the whole indebtedness proved up by the creditor against the estate. I do not think any collusion between the surviving bankrupt partner and this creditor has been shown, and no deliberate fraud has been attempted to be practiced upon the other creditors which would authorize me to reject the whole debt.

for the full amount claimed, $19,155 25, by the false and fraudulent testimony of the claimant himself, has the effect to deprive him of any right to dividends until the other general creditors are paid in full." The appeal was argued before Mr. Justice Miller, at the June term, 1874, and taken by him under advisement. Subsequently, after much consideration, he made the findings of fact and conclusions of law below given.

E. C. Palmer and James A. Marvin, for the assignee; Morris Lamphrey, for E. J. C. Atterbury.

Mr. Justice Miller: I find the following facts.

1. That Atterbury, the father, advanced to his son, the partner of Baker, the sum of $10,000, which was not intended as a loan to the partnership, but as an advance to the son by the father, which was no just claim against the insolvent partnership.

2. I find that said Atterbury, the father, also loaned the partnership the further sum of $9,155.25, which was intended by both the father and the members of the partnership as a loan of money to the firm, and which, but for the next finding of fact, would now be a valid claim against the assets of the bankrupt firm in the hands of the assignee.

3. I find that the appellee, Edward J. C. Atterbury, the father, with full knowledge that the sum of $10,000 aforesaid was an advance to his son, and well knowing that he had induced some of the creditors of the firm to extend credit by his statement that this $10,000 was such an advance, and was not claimed by him as a debt against the firm, did, nevertheless, claim that sum, and the $9,155.25 also, in all the sum of $19,155.25, against the estate of the bankrupts, and did file that claim with the assignee, and did support that claim by a false oath, and did, in support of it in this suit, falsely swear that it was not an advance to his son, but was a just claim against the assets of the firm in the hands of the assignee.

Conclusion of Law. And I am of opinion, as a conclusion of law from the foregoing facts, that said Edward J. C. Atterbury, is not entitled to receive from the assignee of said bankrupt partnership any part of said sum of $19,155,25, neither the $10,000 advanced to the son, nor the $9,155.25 actually loaned to the partnership.

The result is that the decree of the district court is reversed, and a decree entered here disallowing said Atterbury's claim as a creditor, and dismissing his claim with costs. Let a decree be entered accordingly.

[Correspondence.]

Right of Action for Injury Resulting in Death. EDITORS CENTRAL LAW JOURNAL:-The decision of Judge Dil

An order will be entered in accordance with form No. 66, reducing the amount to nine thousand, one hundred and fifty-five dollars and twenty-five cents ($9,155 25), which includes the interest up to May 22, 1873.

From this order the assignee in bankruptcy appealed to the circuit court, and there urged that the district court should have disallowed the whole claim, and prohibited it trom sharing to any extent in the dividends of the bankrupt's estate, at least until the other general creditors were paid in full, for the reason that the claim was founded in fraud, and that the proof of it was fraudulent and false, and known to be so by the claimant.

The motion of the assignee was made under a provision in section 22 of the Bankrupt act, to the effect that the court shall re ject claims founded in fraud, illegality, or mistake.

On the appeal, the assignee's counsel, in their brief, "admitted that the amount allowed E. J. C. Atterbury, by the district court, to wit, $9,155 25, was justly due to him from Atterbury, Baker & Co., or the bankrupt, as the surviving partner at the time he made and filed his proofof adebt against the bankrupt's estate, but submits that the attempt of said claimant to sustain his proof of debt

C. L. J., p. 595, presents an interesting subject for discussion. The reasons suggested by your correspondent, Prof. Hammond, for the supposed common law rule, that no action lies for an injury resulting in death, are so contrary to my long-settled belief, that I am tempted to suggest that there may have been another reason, although, in the changes of society, the rule remains while the reason is forgotten.

In early society, the next of kin of a person killed had the right to take vengeance of the murderer, or he might compromise with him and accept a composition. This was the Jewish law, in part, but all composition for the life of a person killed willfully, was forbidden. Such was also the law of the nations which now inhabit western Europe. It prevailed in England, and the laws established there the sum to be paid for the death of a member of the different classes of society. Thus, the composition for killing a free man was 200 sous, while that for killing a serf was only five shillings. Mont. Esp. d Lois, L. 30, ch. 19. As against his master, the serf had no rights of property, and the composition was paid to the master, not to the family of the deceased. Magna Charta provides that no free man, liber homo. shall be imprisoned, etc.; it did not so provide for the serf.

cumstances--that the promise may not in fact induce the confession. But as it is thought to succeed in a large majority of instances, it is wisely adopted as a rule of law applicable to them all. Ibid. 222, 223 and cases cited. We cannot too strongly urge on the district attorneys never to offer evidence of confessions, except it has first been made to appear that they were made voluntarily. We ought not to be compelled to reverse a judgment because of a violation of so well established a rule of law."

PACIFIC LAW REPORTER, DEC, 15.

erty, the judgment may be for the possession of the property, or for the value thereof, in case a delivery cannot be had, and damages for the detention; and the court held that a judgment for the value alone is not necessarily erroneous, because the alternative is not expressed upon its face; that an absolute judgment is equivalent to finding that a delivery cannot be had. [This is a specimen of the questions of merely local practice in the courts of the territories with which the precious time of the justices of the Supreme Court of the United States, is, under the laws regulating their jurisdiction as they now stand, frittered away.-Ed. C. L. J.]

Discharge in Bankruptcy-Restraining Proceedings at LawCreditor Omitted from the Schedule and not Notified of the Proceeding-Jurisdiction.-In Re Archenbraun, United States District Court, Eastern District of Michigan, Longyear, J. [7 Chi. L. N. 99.]

1. In any case where a discharge may be a bar to a debt, claim, liability, or

ruled:

I. The act of Congress under which Utah was organized as a territory provided for a supreme court, district courts, probate courts, and justices of the peace, and distributed the judicial power among them.

2. It gave to the supreme and district courts a general jurisdiction at common law and chancery, and limited and defined the powers of the justices of the peace.

3. It declared that the legislative power should extend to all rightful subjects of legislation not inconsistent with the constitution of the United States, or with the organic act.

4 The act of the territorial legislature conferring on the probate courts a general jurisdiction in civil and criminal cases, and both in chancery and at common law, is inconsistent with the organic act, and is, therefore, void. Tax Title-Void Assessments.-People v. Hogan, Supreme Court of California. [8 Pac. Law Rep. 193]. Where it is proved that the commissioners did not jointly view and assess the land in question, the assessment is void. [Following People v. Coghill. 47 Cal. 361.] And this is so, although the commissioners may have certified on the assessment roll that they have jointly viewed and assessed it.

CHICAGO LEGAL NEWS, DEC. 19.

Lien on Bankrupt's Estate, When not Lost by Taking Fraudulent Bill of Sale.-Avery, Assignee, v. Hackley, Supreme Court of the United States, opinion by Mr. Justice Davis. [7 Chi. L. N. 98]. This was an action of trover to recover the value of a large quantity of saw-logs alleged to have been fraudulently transferred by Alexander Blake, the bankrupt, to the defendants. There had been several contracts between these parties which were merged in the contract of January 25th, 1868. By this agreement Blake engaged to deliver to the defendants, to be sawed on shares, eighteen millions of feet of pine saw-logs. The defendants agreed to advance Blake four dollars per thousand feet, to be paid as the work progressed, and to be applied

exclusively to this purpose to secure the advances, with a stipulated rate of interest. The property in the logs was conveyed to the defendants, and the right of possession invested in them, who covenanted when the lumber was manufactured to send it forward and sell it to the best advantage, the net proceeds to be equally divided between the parties. Blake, on the 25th of May, 1868, informed the defendants that he was unable to pay his debts, and proposed to make an assignment; but they objected to this, and requested him to make a bill of sale of his property to them, which he did, including the logs. The bill of sale was executed with a view of giving the defendants a preference, and was contrary to the provisions of the bankrupt law. Held, under the evidence, that the contract of Jan. 25, was not abandoned by the parties and merged in the bill of sale; that the creditors having elected to avoid the fraudulent conveyance, take the property as though it had never been made, and subject to all lawful liens upon it; that the assignee, standing in the place of the bankrupt, acquired no greater rights than he possessed, and the defendants neither gained or lost any tights because of the bill of sale. The learned judge cites in support of his general views on this question the following cases: In re Kahley, 4 B. R. 124; Ladd v. Higgin, 35 N. H. 428; Towle v. Hoit, 14 N. H, 63; Stedman v. Vickery & al. 42 Maine, 136; Hoyt v. Dimon, 5 Day, 483; Britt v. Aylett, 6 Eng. (Ark.), 475; Mead v. Combs, C. E. Green, (N. J.) 112; Ripley v. Severance, 6 Pick. 474; Sawyer v. Turpin, 5 Bank. Reg. 339; Roster v. Eastman, 14 Wisconsin, 39; Stockoe v. Cowan, 29 Bevan, 637; Meshke v. Van Doran, 16 Wis. 319; White v. Gainer, 2 Bing. 23.

Practice in Territorial Courts of Montana-Form of Judgment in Replevin.-Bayley v. Griswold, Supreme Court of the United States, opinion by Waite, Ch. J. [7 Chi. L. N. 99.] The statute of this Territory provi that in an action for the recovery of the possession of personal prop

2. Any debt, etc., which " might have been proved," whether actually proved or not, comes clearly within the category of debts, etc., as to which a discharge is declared by Sec. 34, to be a release even though the creditor owning such debt, etc., was omitted from the schedule and received no notice of the proceeding.

3. Jurisdiction, either of the proceedings or to grant a discharge, is not made to depend upon the correctness of the schedule of the creditors, or upon the actual reception of notice of the proceedings by creditors. The court obtains full and complete jurisdiction for all purposes, whatsoever, by the petition, adjudication and warrant whether voluntary or involuntary.

Ne Exeat-When Petition Must Allege Fraud.-Malcolm v. Andrews, Supreme Court of Illinois, opinion by McAllister, J. [7 Chi. L. N. 99.] In a proceeding by ne exeat, not of an equitable nature, the plaintiff (in analogy to the proceeding by capias ad respondendum) must show by his petition by facts stated and circumstances detailed, that the debtor has been guilty of fraud, or that there is a strong presumption of fraud.

Levy on Land-Mistake-Equity.-Young v. McGown, Supreme Judicial Court of Maine, opinion by Appleton, Ch. J. [7 Ch. L. N. 102.] A court of equity will not correct a mistake in a levy upon land.

Meliorations and Improvements.-Union Hall Association v. Morrison, Court of Appeals of Maryland. [7 Chi. L. N. 104.] A bona fide purchaser without notice of defect in his title, is entitled to compensation for improvements from the true owner upon a bill filed against him for that purpose.

THE Chicago Bar Association has passed a resolution that the supreme court of Illinois should meet only at the capitol of the state.

-A WASHINGTON jury has lately rendered a verdict of $15,000 in favor of Wm. Penn Clarke and J. H. Weed, for legal services in collecting Montana war claims.

MOSES G. COBB, a prominent member of the bar of San Francisco, Cal., was shot and fatally wounded on the 23d ult., by Mrs. Smyth, a client. Cause, business troubles. It is thought the latter is insane.

-JUDGE E. M. KIELS of the Eufala, Ala., city court, has resigned. Articles of impeachment were pending in the general assembly. He is also under indictment for felony. Gen. Alpheus Baker has been appointed to succeed him.

-"WHY not put up Judge Dillon of Iowa for president?" asks a Kansas paper. Partly because he is too good a judge to be spared for any other position, and mainly because he is a man of too much sense to run as a forlornhope candidate.-St. Louis Times.

-BY a latitudinous construction of some act of Congress, the speech of Mr. Riddle, in the Safe Burglary case, has been issued in pamplet form from the government printing office, at public expense. If it indeed be true that that office was established, among other things, for the purpose of printing lawyers' briefs gratuitously, we know of a number who would like to patronize it.

-HON. ALEXander HamilTON, formerly a judge of the St. Louis Circuit Court, was kindly remembered by the younger members of the St. Louis bar on Christmas day. They presented Mrs. Hamilton with a handsome lifesize portrait of the Judge, executed by a St. Louis artist, Mr. John Reid,