on the weight of evidence in a contested case before them, the only remedy is by appeal from one officer to another of the department."

Applying to the case before us these principles, which are so well established and so well understood in this court as to need no further argument, we are of opinion, if we take as proved the sufficiency of the occupation and improvement of Bunn as of the date which he alleged, his claim is fatally defective in another respect in which the officers of the land department were mistaken as to the law which governed the rights of the parties, or entirely overlooked it.

In the recent case of Atherton vs. Fowler, we had occasion to review the general policy and course of the government in disposing of the public lands, and we stated that it had formerly been, if it is not now, a rule of primary importance to secure to the government the highest price which the land would bring by offering it publicly at competitive sales, before a right to any part of it could be established by private sale or by pre-emption. In the enforcement of this policy the act of September 14, 1841, which for the first time established the general principle of pre-emption, and which has remained the basis of that right to this day, while it allowed persons to make settlements on the public lands as soan as the surveys were completed and filed in the local offices, affixed to such a settlement, two conditions as affecting the right to a pre-emption. One of these waa that the settler should give notice to the land office of the district, within thirty days after seitlement, of his intention to exercise the right of pre-emption, and the other we will give in the language of the 14th section of that act.:

"This act shall not delay the sale of any of the public land of the United States beyond the time which has been or may be appointed by the proclamation of the President, nor shall any of the provisions of this act be available to any person who shall fail to make the proof of payment and file the affidavit required, before the commencement of the sale aforesaid."-(5 U. S. Stat., 457.)

There can be no misconstruction of this provision, nor any doubt that it was the intention of Congress that none of the liberal provisions of that act should stand in the way of a sale at auction of any of the public lands of a given district where the purchase had not been completed by the payment of the price before the commencement of the sales ordered by the President's proclamation. We do not decide, because we have

not found it necessary to do so, whether this provision is applicable under all the pre-emption laws passed since the act of 1841, though part of it is found in the Revised Statutes, $2,282, as part of the existing law. But we have so far examined all those laws enacted prior to November, 1855, the date of Mitchell's purchase, as to feel sure that it was in full operation at that time. The act of March 3, 1853, extending the right of pre-emption to the alternate sections, which the government policy reserved in its numerous grants to railroads and other works of internal improvement, required the preemptor to pay for them at $2.50 per acre, before they should be offered for sale at public auction (10 U. S. Stat., 244.) This was only two years and a half before these lands were sold to Mitchell, and they were parts of an alternate section reserved in a railroad grant. That statute, in its terms, was limited to persons who had already settled on such alternate sections, and it may be doubted whether any right of pre-emption by a settlement made afterwards, existed under the law. But it is unnecessary to decide that point, as it is beyond dispute that it required, in any event, that the money should be paid before the land was offered for sale at public auction.

The record of this case shows that while Bunn's pre-emption claim comes directly within the provision of both statutes, they were utterly disregarded in the decision of the Secretary of the Interior, on which alone his case has any foundation.

We have no evidence in this record at what time the President's proclamation was issued, or when the sales under it began at which Mitchell purchased. These proclamations are not published in the statutes as public laws, and this one is not mentioned in the record. But we know that the public lands are never offered at public auction until after a proclamation. fixing the day when and the place where the sales begin. The record shows that both Moore and Mitchell bought and paid for the respective forty-acre pieces now in contest, at public auction. That they were struck off to them a few cents in price above the minimum of $2.50, below which these alternate sections could not be sold, and that this was on the 15th day of November, 1855. These public sales were going on then on that day, and how much longer is not known, but it might have been a week or two weeks, as the sales often continue open longer than that.

Bunn states in his application, made three months after this, that his settlement began on the 8th of November, 1855. It is not apparent from this record that he ever gave the notice

of his intention to pre-empt the land by filing what is called a declaration of that intention in the land office. There is a copy of such a declaration in the record accompanying the affidavit of settlement, cultivation and qualification required of a pre-emptor, which last paper was made and sworn to February 20, 1856, when he proved up his claim and paid for and received his certificate. There is nothing to show when the declaration of intention was filed in the office.

Waiving this, however, which is a little obscure in the record, it is very clear that Bunn "failed to make proof of payment, and failed to file the affidavit of settlement required, before the commencement of the sale" at which Mitchell bought. The statute declares that none of the provisions of the act shall be available to any person who fails to do this. The affidavit and payment of Bunn were made three months after the land sales had commenced and after these lands had been sold.

The section also declares that the act shall not delay the .sale of any public land beyond the time which has been or may be appointed by the proclamation of the President. To refuse Mitchell's bid on account of any supposed settlement, even if it had been brought to the attention of the officers, would have been to delay the sale beyond the time appointed, and would, therefore, have been in violation of the very statnte under which Bunn asserts his right.

Whatever Bunn may have done on the 8th November, and up to the 15th of that month, in the way of occupation, settlement, improvement, and even notice, could not withdraw the land from sale at public auction unless he had also paid or offered to pay the price before the sales commenced.

It seems quite probable that such attempt at settlement as he did make was made while the land sales were going on, or a few days before they began, with the pnrpose of preventing the sale, in ignorance of the provision of the statute which made such attempt ineffectual.

At all events we are entirely satisfied that the lands in controversy were subject to sale at public auction at the time Moore and Mitchell bid for and bought them; that the sale so made was by law a valid one; vesting in them the equitable title, with right to receive the patents, and that the subsequent proceeding of Bunn to enter the land as a pre-emptor were unlawful and void.

It was the duty of the court in Illinois, sitting as a court of equity, to have declared that the mortgage made by Bunn, so

far as these lands are concerned, created no lien on them because he had no right, legal or equitable, to them.

The decree of the Supreme Court of that State is, therefore, reversed, and the cause remanded to that court for further proceedings in accordance with this opinion.

True Copy-Test:

D. W. MIDDLETON;

Clerk Supreme Court United States.

SYLLABI OF THE

Supreme Court Commission of Ohio.

(May 29, 1878.)

[Action for Slander.]

JOHN G. DUVAL vs. HANNAH DAVEY and JOSEPH DAVEY.

ASHBURN. J.:

1. Where words defamatory of the character of a married woman are published in the presence and hearing of her husband, he is a competent witness to prove the speaking of the words in an action of slander brought by husband and wife.

2. In an action of slander by a woman, where the alleged defamatory words impute to her a want of chastity, specific acts of sexual intercourse by her cannot be given in evidence, for any purpose, under the issue made by a general denial.

3. Where the slanderous words set out in the petition charged the plaintiff, a female, with a want of chastity, under such issue it is competent, in mitigation of damages, to show that plaintiff's general reputation for chastity at and prior to the speaking of the words was bad. Dewitt vs. Greenfield 5. O., 225, overuled.

Judgment reversed.

Wright. J. dissents to the second point iu the syllabus.

[Equity of Redemption.]

ELIZA A. SHAW vs. HORACE S. WALBRIDGE.

WRIGHT, J.:

1. A deed having been given, absolute upon its face, the grantor claimed it was a mortgage, in a proceeding to establish that claim, it was competent for the grantee to show, that althouhg originally a mortgage the equity of redemption had been released by a parole agreement.

2. There is no rule of law which prevents a mortgagor from disposing of his equity of redemption to a mortgagee by private arrangement, but courts of

equity will not permit a mortgagee to take advantage of his position so as to wrest from the mortgagor his equity, by an unconscionable bargain. The transaction will be jealously scrutinized, but if the agreement was a fair one, under all the circumstances of the case, it will be upheld. Judgment affirmed.

Book Notice and Review.

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