We see no error in the decree of the court below, and it is accordingly affirmed. resist successfully any action of the govern- | consideration in Holland v. Challen, 110 U. S ment in disposing of the property. The con- 15 [28: 52], and the jurisdiction of a court of firmation takes effect, by relation, as of the date equity to grant the relief prayed in such case of the first proceeding commenced before the was sustained. See also Reynolds v. Crawland commissioners; and an adjudication that fordsville First Nat. Bank, 112 U. S. 405, 411 at that date it was valid is also an adjudication [28: 733, 736]; Chapman v. Brewer, 114 U. S. that it was valid at the date it was made. And 158, 170, 171 [29: 83, 87, 88]; U. S. v. Wilson, the patent which follows the confirmation and 118 U. S. 86, 89 [30: 110, 112]; Frost v. Spitley, approved survey, and is a matter of record, is 121 U. S. 552, 557 [30: 1010, 1012]. itself evidence of the regularity of preliminary proceedings. As was said in Beard v. Federy, 70 U. S. 3 Wall. 478, 492 [18: 88, 92], "by it the government declares that the claim asserted was valid under the laws of Mexico; that it was entitled to recognition and protection by the stipulations of the treaty, and might have been located under the former government, and is correctly located now, so as to embrace the premises as they are surveyed and described. As against the government this record, so long as it remains unvacated, is conclusive. And it Ejectment-finding for part of premises-inis equally conclusive against parties claiming under the government by title subsequent. It is in this effect of the patent as a record of the government that its security and protection chiefly lie." DAYTON S. MORGAN ET AL., Plffs. in Err (See S. C. Reporter's ed. 63-67.) sufficient description-judgment. 1. In ejectment, where the order of the court indicates a general finding for the plaintiff only as to a part of the land in controversy, which part is described in the order, a judgment is proper for the recovery only of the possession of the premises so described, if the plaintiffs fail to show title to the remaining part of the premises in dispute. 2. Where there was no special finding of facts bearing upon the question of title, this court will assume that the evidence authorized the finding as and they cannot complain that judgment was not to the particular premises awarded to the plaintiffs; rendered in their favor for the part not shown to belong to them. recovered, was not sufficiently full or accurate, it 3. If the description in the judgment, of the land was in the power of the plaintiffs at the time the finding was made, or during the same term, to procure such a reformation of the judgment as would have been proper. 4. Where the finding was in fact and in legal effect for only a part of the premises in dispute, and where, from the record, the court is bound to asgiven in the complaint, the judgment for that part sume that that part is embraced in the description will be affirmed. [No. 200.] Argued April 2, 1888. Decided April 16, 1888. ERROR to the Circuit Court of the United It remains to consider two other positions taken by the appellants: first, that the sale to Poli of the ex-mission of San Buenaventura was illegal and void, and hence that no title passed to the patentee on its confirmation; second, the want, of any allegation in the complaint, or any evidence in the proofs, that the plaintiffs were in possession of the premises when this suit was commenced. In support of the first position the appellants cite United States v. Workman, 68 U. S. 1 Wall. 745 [17: 705], In that case it was held that the Departmental Assembly of California had no power to authorize the governor to alienate any public lands of the department, and that its own power was restricted to that conferred by the laws of colonization, which was simply to approve or disapprove of the grants made by the Governor under those laws. But it does not follow that there were not exceptional circumstances with reference to the sale to Poli, which authorized the Governor to make it. We are bound to suppose that such was the case, in the absence of any evidence to the contrary, from the fact that the validity of his claim under it was confirmed by the board of land commissioners, by the District Court of the United States, and by this court on appeal. The question of its validity was thereby forever closed, except as against those who might be able to show a prior and better title to the premises. The defendants show no title whatever; but, on the contrary, the grant under which they assert title has been, by the adjudication of the board of land commissioners and by the survey and patent, confined to other land. Second, as to the want of any allegation in the complaint of possession by the plaintiffs, or any evidence of that fact in the proofs, it is sufficient to say that, by section 738 of the Code of Civil Procedure of California, a plaintiff as-lowing proceedings were had: serting title to lands, though out of possession, may maintain an action to determine an adverse claim, estate, or interest in the premises. People v. Center, 66 Cal. 551. A statute of Nebraska, authorizing a similar suit by a plaintiff out of possession, was before this court for a judgment in ejectment for the plaintiffs. Affirmed. Statement by Mr. Justice Harlan: This is an action of ejectment. The complaint, framed in accordance with the local law, described the premises sought to be recovered as follows: "All of the north part of lot two, in section thirty-six, township thirtyeight north of range ten west of the second principal meridian, which lies west of the track of the Lake Shore & Michigan Southern Railroad, and north of a line parallel with the north line of said lot two, and seven hundred and fifty-three feet south therefrom." The answer contains a denial of each allegation in the complaint. On the 20th of January, 1883, during the November Term of the court below, the fol "Come the parties by counsel, and by agreement this cause is submitted to the court for trial; and the court, having heard the evidence and being fully advised, finds for the plaintiffs, and orders and adjudges that they are entitled to and shall have and recover of defendant the possession of so much of said lot two as lies south of the south line of lot number one, as indicated by a fence constructed and maintained by the defendant as and on said south line, said fence running from the state line easterly to Lake Michigan,-and assess the damages at $1.00 and costs, taxed at $- which the plaintiffs shall recover of defendant. "All of which is finally ordered, adjudged, and decreed." During the same term, February 5, 1883, the plaintiffs moved that the decision and finding be set aside and annulled, and a new trial granted, for the following reasons: 1. They were contrary to the law and the evidence. 2. The plaintiffs were surprised by a case falsely made by the defendant at the trial, which they had no reason to expect, and therefore did not come prepared to answer at the trial, namely, by his claim, supported only by the testimony of his son, that Jacob Forsyth and the surveyor, Wait, pointed out and agreed upon the line occupied by the fence of defendant mentioned in said decision as the true line of said Egger's land; by his claim, supported by his testimony alone, that George W. Clarke agreed with him that the line occupied by said fence was the line between his and said Clarke's land; by his claim, supported by his own testimony and that of his son only, that a fence had been maintained on the line occupied by the fence, in said decision mentioned, for more than twenty years last past; and by his claim, supported by the testimony of his son only, that for twenty years past he had occupied all the land as far south as said fence. 3. The court admitted evidence for the defendant against the objection of plaintiffs, and the decision of the court was based on such irrelevant evidence. On the 6th of March, 1883, the following order was made: "Came the parties by counsel, and the court, being fully advised, now overrules plaintiffs' motion for a new trial; to which plaintiffs except, and the court allows plaintiffs thirty days in which to file bill of exceptions." No bill of exceptions, showing what occurred at the trial, was filed. On the 23d of April, 1884, the plaintiffs moved the court, upon written grounds filed, to amend and reform the judgment of January 20, 1883, so that it "shall conform to the complaint in said cause, and to the finding or verdict of the court rendered upon the trial in said cause." ever, is clear. It is as if the entry read in this way: And the court, having heard the evidence, etc., finds and orders and adjudges that the plaintiffs are entitled to, and shall have and recover of the defendants, etc." The errors assigned upon the record are that the judgment does not pursue the issue and finding thereon rendered and entered of record as the law directs and requires, and that the court erred in refusing to amend and reform the judgment. Mr. Edward Roby, for plaintiffs in error: The federal statutes on practice of the circuit courts are binding on the federal courts, and cannot be disregarded. Louisiana Mut. Ins. Co. v. Tweed, 74 U. S. 7 Wall. 44, 51 (19: 65, 66). Lawful authority to act in lieu of the jury must be presumed when it appears that the jury was waived. Grignon v. Astor, 43 U. S. 2 How. 319 (11: 283); Tilton v. Cofield, 93 U. S. 165 (23:858). But if the error appears on the face of the record, the judgment entered will be reversed. Guild v. Frontin, 59 U. S. 18 How. 135 (15: 290). Notwithstanding there is no submission in writing, this court may, according to the course of the common law, review the record on writ of error, and determine whether the judgment pursues the finding. Bond v. Dustin, 112 U. S. 606-609 (28:836, 837); Campbell v. Boyreau, 62 U. S. 21 How. 223, 226 (16:96); Flanders v. Tweed, 76 U. S. 9 Wall. 425 (19:678); Paine v. Central Vermont R. R. Co. 118 U. S. 158 (30:195); Allen v. St. Louis Bank, 120 U. S. 30 (30:575); Alexandria Canal Co. v. Swann, 46 U. S. 5 How. 83 (12:60); York & C. R. R. Co. v. Myers, 59 U. S. 18 How. 246, 252 (15:380, 382). A finding by the court not made at the request of either or any of the parties is not a special finding. Northcutt v. Buckles, 60 Ind. 577, 579; Caress v. Foster, 62 Ind. 145, 153, 154. Where the Circuit Court of the United States adopts the process pointed out by a state law, there must be no essential variance. McCracken v. Hayward, 43 U. S. 2 How. 608(11:397). The forms and effects of findings and verdictsare as prescribed by the local law. Pensacola Ice Co. v. Perry, 120 U. S. 318 (30:663). At common law the verdict was always plainly entered, as in Rastell's Entries, 253; Coke's Entries, 184-216; Runnington, Eject. 232, 233, 478, 479, 510; Co. Litt. 227, a, b; Aston's Entries, 308; Harris's Entries, 341, 356; Mallory's Entries, 43, 44; Lilly's Entries, 513; 4 Co. Inst. 87. Judgment can be given only on what has gone before in the record. At a subsequent term of the court, June 27, 1884, the motion to amend and reform the judg ment of the court was overruled. To that ruling the plaintiffs excepted, and took a bill of exceptions embodying only the motion to amend and reform the judgment, the order overruling that motion, and the opinion of the court thereon. The court, among other things, said: "It was competent for the court, under the issue, to find to what extent the defendant was guilty, or had held unlawful possession of the premises described; and if, under the evidence, it appeared that a fence had become or was the boundary of such occupation, it was proper that the fact should be stated in the Co. Inst. 260, a; 1 Bl. Com. 69; 3 Bl. Com. 24. finding and judgment of the court. The find- What the law requires to be done and to aping and judgment in this instance are not sepa-pear of record can only be done and made to rate and distinct, as perhaps it would have been appear by the record itself, or an exemplificabetter to have had them. The meaning, how- tion of the record. Co. Litt. 39, a; Cunningham, Law Dict. title Judgment; Tomlin, Law Dict. title Judgment and Record. Record is a memorial of the proceedings and acts of a court of justice. 63-67 SUPREME COURT OF THE UNITED STATES. between cases at law and in equity is rigidly preserved. Elliott v. Peirsol, 26 U. S. 1 Pet. 340 (7:170). A verdict is simply the answer of a jury to Const. art.3, § 2; Amendment VII.; Rev. Stat. the court on the issues of fact committed to their examination; a judgment is the conclu-SS 753, 648, 914, 861, 862; U. S. v. Wilson, 118 U. S. 86 (30:110); McConihay v. Wright, 121 sion that flows from the law and the verdict. U.S. 201 (30:932); Basey v. Gallagher, 87 U. S. Stennett v. Scott, 7 Ark. 281. Whether the case is tried by a jury, or, by 20 Wall. 670 (22:452); Thompson v. Central Ohio consent of the parties, the judge is substituted R. R. Co. 73 U. S. 6 Wall. 134 (18:765); Bennett for the jury, the finding is a verdict, to be re-v. Butterworth, 52 U. S. 11 How. 669 (13:859); corded as such, and to have the same force and Northern Pac. R. R. Co. v. Paine, 119 U. S. 561 effect in either case; and the record will be ex- (30:513). amined and tried in this court according to the rules of the common law. Upon records like the one before us these rules have been applied, both before-Mercantile Mut. Ins. Co. v. Folsom, 85 U. S. 18 Wall. 237-254 (21: 827-835)-and since the statutes authorizing exceptions to be saved to the rulings of the judge during the trial where a jury is waived. A record can only be tried by itself, by bare inspection. Com. Dig. title Record, B, E, F.; Co. Litt. 117 b, 260; Croswell v. Byrnes, 9 Johns. 287; Young v. Thompson, 14 Ill. 380, 381; 3 Bl. Com. 24; Waldron v. Green, 4 Wend. 409; Re Negus, 10 Wend. 40; McKnight v. Dunlap, 4 Barb. 36. Where mandamus is the proper remedy, error will not lie. Knickerbocker Ins. Co. v. Comstock, 83 U. S. 16 Wall. 258 (21:493). Craig v. Missouri, 29 U. S. 4 Pet. 410 (7:903); Weems v. George, 54 U. S. 13 How. 190 (14:108); Graham v. Bayne, 59 U. S. 18 How. 60 (15:265); Guild v. Frontin, Id. 135 (15:290); Louisiana Mut. Ins. Co. v. Tweed, 74 U. S. 7 Wall. 44 (19: 65); Bassett v. U. S. 76 U. S. 9 Wall. 38 (19:548); Norris v. Jackson, Id. 125 (19:608); Copelin v. Mansur v. Streight, 1 West. Rep. 299, 103 Phoenix Ins. Co. Id. 461 (19:739); Coddington v. Richardson, 77 U. S. 10 Wall. 516 (19:981); Ind. 358; Larned v. Hudson, 57 N. Y. 151; HarGeneres v. Campbell, 78 U. S. 11 Wall. 193 (20:rison v. Nixon, 34 U. S. 9 Pet. 503 (9:208); Gra110); Miller v. Brooklyn L. Ins. Co. 79 U. S. 12 ham v. Bayne, 59 U. S. 18 How. 61, 62 (15: 'Wall. 285 (20:398); Dirst v. Morris, 81 U. S. 14 266). Wall. 484 (20:722); Richmond v. Smith, 82 U. S. 15 Wall. 429 (21:200); Dickinson v. Planters Bank, 83 U. S. 16 Wall. 250 (21:278); Mercantile Mut. Ins. Co. v. Folsom, 85 U. S. 18 Wall. 237 (21:827); Ohio v. Marcy, Id. 552 (21:813); Springfield F. & M. Ins. Co. v. Sea, 88 U. S. 21 Wall. 158 (22:511); Etna Ins. Co. v. Boon, 95 U. S. 117 (24:395); Boogher v. New York L. Ins. Co. 103 U. S. 90 (26:310); U. S. v. Harris, 106 U. S. 634 (27:292); Bond v. Dustin, 112 U. S. 604 (28: 835); Martinton v. Fairbanks, Id. 670 (28:862); Allen v. St. Louis Bank, 120 U. S. 30 (30:575). The court must enter a judgment on the verdict, or set it aside and grant a new trial. This court has decided that, on this record, the remedy is by writ of error. Ex parte Morgan, 114 U. S. 174 (29:135). There was no averment of damages in the declaration; no issue on their amount. Mitchell v. Geisendorf, 44 Ind. 360. Judgment cannot be entered until the verdict or decision upon the issue has been pronounced and recorded. Gilbert, Eject. 92-114; Runnington, Eject. 401; Adams, Eject. 328; Tyler, Eject. 582; 3 Bl. Com. 395; 3 Chitty, Bl. App. 12. The making up of the judgment, and writing the same out upon the record, are both acts of the clerk, and never the act of the court. The claim for mesne profits, and for damages for withholding possession, are separate and distinct causes of action which must be pleaded if any recovery therefor is desired. Larned v. Hudson, and Mansur v. Streight, supra. The insertion, in the judgment, of the words "as indicated by a fence constructed," etc., was improper. Applegate v. Doe, 2 Ind. 169, 170; Voltz v. Newbert, 17 Ind. 190, 191; Doe v. Hall, 2 Ind. 24; Farrow v. Farrow, 2 J. J. Marsh. 388; Simpson v. Shannon, 5 Litt. 324; Doe v. Wilson, 2 Starkie, 477; Cottingham v. King, 1 Burr. 623; Connor v. West, 5 Burr. 2672. In this case the judgment only requires to be amended, according to certain and long estab lished principles. Woodward v. Brown, 38 U. S. 13 Pet. 1, 2 (10: 31); Bank of Kentucky v. Ashley, 27 U. S. 2 Pet. 327 (7:440); Miller v. Royce, 60 Ind. 189; State v. Cross, 6 Ind. 387; Sherman v. Nixon, 37 Ind. 154; 3 Bl. Com. 407-410; Smith v. Fuller, 2 Strange, 786; Flindell v. Fairman, 11 Price, 410, 411. The court had nothing to do with the location of the boundary. 39 Tongue v. Nuturell, 17 Md. 228, 229; Farrow The verdict must respond to the issue joined, between the parties to the action. Gilbert, Eject. 92; Vin. Abr. title Amendment (I), 16, 22; Bac. Abr. title Amendment and Jeofails; Mason v. Fox, Cro. Jac. 632; Usher v. 3 T. Dansey, 4 Maule & S. 94; Rees v. Morgan, R. 349; Short v. Coffin,5 Burr. 2730; Bank of Ken-v. tucky v. Wister, 27 U. S. 2 Pet. 318 (7:437); S. C. 28 U. S. 3 Pet. 431 (7:731); Woodward v. Brown, 38 U. S. 13 Pet. 1 (10:31); Stockton v. Bishop, 45 U. S. 4 How. 155, 168 (11:918, 923); Fite v. Doe, 1 Blackf. 127; Smith v. Myers, 5 Blackf.| 223; McManus v. Richardson, 8 Blackf. 100; Miller v. Royce, 60 Ind. 189; State v. Cross, 6 Ind. 387; Sherman v. Nixon, 37 Ind. 154; Jenkins v. Long, 23 Ind. 460; Bales v. Brown, 57 Ind. 282; Latta v. Griffith, Id. 329; Silner v. Butterfield, 2 Ind. 24. In courts of the United States the distinction Patterson v. U. S. 15 U. S. 2 Wheat. 221 (4: 224); Garland v. Davis, 45 U. S. 4 How. 131 (11:907); Middleton v. Quigley, 12 N. J. L. 352; Holmes v. Wood, 6 Mass. 1; Kilbourn v. Waterous, Kirby (Conn.), 424; Fenwick v. Logan, 1 Mo. 401; Moody v. Keener, 7 Port. (Ala.) 218; Sawyer v. Fitts, 4 Stew. & P. 365; Vines v. Brownrigg, 2 Dev. L. 537. A verdict which is recorded for part of the 127 U.S. land sued for, and which says nothing as to the | therein, whether a divided or undivided inrest, is void. Twice adjudged. terest. Co. Litt. 227, a, Wise v. Hine, 1 Greene (Iowa), 62; Auncelme v. Auncelme, Cro. Jac. 31; Com. Dig. title Pleader (S) 19: Miller v. Trets, 1 Ld. Raym. 324; Rex v. Hayes, 2 Ld. Raym. 1518; Wood v. McGuire, 17 Ga. 361; Patterson v. U.S. 15 U. S. 2 Wheat. 225 (4:225); Prentice v. Zane, 49 U. S. 8 How. 484 (12:1166); Graham v. Bayne, 59 U. S. 18 How. 60 (15:265); Er parte French, 91 U. S. 423 (23:249); Fort Scott v. Hickman, 112 U. S. 150, 165 (28: 636, 641); Graves v. Morley, 3 Lev. 55. A general verdict for the plaintiff entitles him to judgment for the entire premises. McKee v. Wilson, 87 N. C. 300; Burkle v. Ingham Circuit Judge, 42 Mich. 513; Chapman v. Holding, 60 Ala. 522; Farrow v. Farrow, 2 J. J. Marsh. 388; Buckley v. Cunningham, 4 Bibb, 285; Hamner v. Eddins, 3 Stew. (Ala.) 192, 197; Kershner v. Kershner, 36 Md. 335, 336; Betz v. Mullin, 62 Ala. 365; Cannon v. Davies, 33 Ark. 56. Indiana reports are full of such amendments nunc pro tunc. Jenkins v. Long, 23 Ind. 460; Bales v. Brown, 57 Ind. 282; Latta v. Griffith, Id. 329; Burson v. Blair, 12 Ind. 371; Silner v. Butterfield, 2 Ind. 24; Fite v. Doe, 1 Blackf. 127; Smith v. Myers, 5 Blackf. 223; McManus v. Richardson, 8 Blackf. 100. Messrs. A. C. Harris and Wm. H. Calkins for defendant in error: A judgment will not be reversed because of the use of untechnical or improper words. Lyles v. McClure, 1 Bail. L. (S. C.)7; Minkhart v. Hankler, 19 Ill. 47; Freem. Judg. 1st ed. §§ 47, 50, 51. A new trial of right being a statutory remedy, the right granted is no broader than the statute. Butler University v. Conard, 94 Ind. 353. Under the general issue it was not necessary to prove the defendant's possession. The answer admitted this. Carver v. Carver, 97 Ind. 519. It is too late to attack the judgment now. Buell v. Shuman, 28 Ind. 464; Rardin v. Walpole, 38 Ind. 146, 150; Smith v. Dodds, 35 Ind. 452; Leary v. State, 39 Ind. 360; Brick v. Scott, 47 Ind. 299, 300. The motion to correct the judgment was clearly an afterthought and is unsupported by any practice. Lake Erie & W. R. Co. v. Acres, 7 West. Rep. 83, 108 Ind. 548; Henry v Sterens, Id. 281 (6 West. Rep. 577; First Nat. Bank v. Root, 5 West. Rep. 286, 107 Ind. 224, 228; Louisville, N. A. &C. R. Co. v. Schmidt, 3 West. Rep. 648, 106 Ind. 73; Leeds v. Richmond, 102 Ind. 372; Holderman v. Miller, Id. 356; Over v. Schiffling, Id. 191; Bremmerman v. Jennings, 101 Ind. 253; Logansport v. Uhl, 99 Ind. 531; Cottrell v. Etna L. Ins. Co. 97 Ind. 311; Western Union Tel. Co. v. Reed, 96 Ind. 195; Mescall v. Tully, 91 Ind. 96. Twenty years a bar. Bowen v. Preston, 48 Ind. 367; Vanduyn v. Hepner, 45 Ind. 596; Wright v. Tichenor, 2 West. Rep. 209, 104 Ind. 185; State v. Portsmouth Sar. Bank, 4 West. Rep. 526, 106 Ind. 436. The plaintiff suing for the possession of real estate may recover for any part of it or interest Carver v. Carver, 97 Ind. 497-505; Steeple v. Downing, 60 Ind. 478-503; Parker v. Small, 58 Ind. 349; Clements v. Robinson, 54 Ind. 599. Mr. Justice Harlan delivered the opinion of the court: More than a year elapsed after the refusal of the court to grant a new trial before the motion to amend and reform the judgment was made. If the court had authority to entertain that motion after the expiration of the term at which the judgment was entered, it was properly denied. By the local statute applicable to the case the plaintiffs were entitled to recover against the defendants, or either of them, the whole of the premises in controversy, or any part thereof, or any interest therein, according to the rights of the parties. Rev. Stat. Ind. 1881, 1060; Rev. Stat. U. S. § 914. The plaintiffs contend that there was, in effect, a general finding for them, as to all the land in dispute, and that the judgment should have been in their favor for the whole of the premises described in the complaint. But the record, fairly interpreted, does not show any such finding. The order of January 20, 1883, embraces both a finding and a judgment. But they are not, for that reason, nullities. O'Reilly v. Campbell, 116 U. S. 418, 420 [29:669]. That order plainly indicates a general finding for the plaintiff's only as to a part of the land in controversy; that is, as to the part described in the order. The judgment is for the recovery only of the possession of the premises so described. Such a judgment was proper if the plaintiffs failed to show title to the remaining part of the premises in dispute. As there was no special finding of facts bearing upon the question of title, we must assume that the evidence authorized the finding as to the particular premises awarded to the plaintiffs. They cannot complain that judgment was not rendered in their favor for the part not shown to belong to them. It was said in argument that the judgment was for land not embraced in the description given in the complaint; that the plaintiff's got a judgment for land not sued for. But this cannot be made to distinctly appear from a comparison of the description in the complaint, with the description in the judgment, of the premises recovered. If the description in the judgment, of the land recovered, was not sufficiently full or accurate, it was in the power of the plaintiffs, at the time the finding was made, or during the same term, to procure such a reformation of the judgment as would have been proper. Instead of pursuing that course, they preferred to claim-contrary to what, it seems to us, was the manifest purpose of the court-that there was a general finding, without qualification, in their behalf, which should have been followed by a judgment for the whole land. As, however, the finding was, in fact and legal effect, for only a part of the premises in dispute, and as we are bound to assume, from the record, that that part is embraced in the description given in the complaint, the judgment must be affirmed. It is so ordered. SARAH C. ROBARDS, Piff. in Err., v. ALFRED W. LAMB. (See S. C. Reporter's ed. 58-62.) Missouri statute-special administrator-notice of settlement-constitutionality of statute. 1. The statute of Missouri which authorizes a special administrator, who has charge of the estate of a testator pending a contest as to the validity of his will, to have a final settlement of his accounts without giving notice to distributees, which settlement in the absence of fraud is deemed conclusive as against such distributees, is not repugnant to the clause of the Constitution of the United States forbidding a State to deprive any person of his property without due process of law. 2. In matters involved in the accounts of such special administrator, the executor or administrator with the will annexed represents all claiming under the will, and can examine such accounts, and, if not satisfactory, contest their correctness. 3. When a special administrator ceases to act as such, he must account, for the property and estate in his hands, to the executor or administrator with the will annexed, who acts for all interested in the distribution of the estate. an order as to the balance in the hands of the special administrator, directing him to turn the same over to the executors of the estate. and providing for the discharge of himself and sureties, upon his filing in that court the receipt of the executors for such balance. The executors having their receipt for all the property held by him, as shown by his final settlement, and the same having been filed, an order was passed by the probate court for the final discharge of the special administrator. The Supreme Court of Missouri held, in the present case, that while the laws of that State (Gen. Stat. chap. 124, § 16-19; Rev. Stat. 1879, 238-241) required notice by publication of the final settlement of executors and administrators, notice was not required in respect to settlements of special administrators in whose hands the property of a testator is placed pending a contest as to the validity of his will. Its language was: "As was said in Lamb v. Helm, 56 Mo. 433. such special administrators occupy more nearly the position of a receiver, who acts under the direction of the court, than they do the position of a general administrator. The special administrator is appointed for temporary purposes only (Hawkins v. Cunningham,67 Mo.415); and when the contest as to the will is over, and the nominated executor qualifies, his functions are at an end, and he must settle his accounts, and turn over the property in his hands to the regular executor or administrator. This ac is his final is true, court affirming the judgment of the Court of it is not a final settlement of the estate, contemCommon Pleas of that State in favor of defend-plated when notice is required to be given. ant, on demurrer, in an action to set aside a final There is no need of any notice, for there is then settlement of an administrator pendente lite. a regular representative of the estate with whom Motion to dismiss for want of jurisdiction. the settlement is made under the direction of the Judgment affirmed. probate court. The statute which provides for notice on final settlements, therefore, has no application to settlements made by an administrator pendente lite, and notice is not required. Reported below, 4 West. Rep. 689, 89 Mo. 303. Statement by Mr. Justice Harlan: By the statutes of Missouri relating to the granting of letters testamentary and of administration, it is provided: "If the validity of a will be contested, or the executor be a minor or absent from the State, letters of administration shall be granted, during the time of such contest, minority or absence, to some other person [other or different from the one charged with the execution of the will, Lamb v. Helm, 56 Mo. 432], who shall take charge of the property and administer the same according to law, under the direction of the court, and account for and pay and deliver all the money and property of the estate to the executor or regular administrator, when qualified to act.” Gen. Stat. Mo. chap. 120, § 13; Rev. Stat. Mo. chap. 1, art. 1, § 14. The present suit was brought in behalf of distributees to falsify a final settlement, made in one of the probate courts of Missouri, of the accounts of a special administrator, who was appointed, under the authority of the above statute, to take charge of and administer the property of a testator pending a contest as to the validity of his will. The plaintiff claims that at that settlement the distributees were not represented, and did not have actual or constructive notice thereof. After the contest as to the will ended, the probate court passed "As to section 47, chapter 120, which provides that if any administrator die, resign, or his letters be revoked, he or his legal representatives shall account to the successor, etc., it is sufficient to say the section has no application to this case, for here the special administrator neither resigned nor were his letters revoked, but his powers ceased by operation of law and the express terms of the appointment. We do not intimate that in these cases notice of the settlement must be given, though, when an administrator desires to resign, notice of his intention to make application to that end must be given. "It follows that the judgment of the probate court discharging the special administrator is final and conclusive, even as against the plaintiff, for there is no saving clause as to minors or married women. The petition does not seek relief on the ground of fraud." RoBards v. Lamb [4 West. Rep. 689], 89 Mo. 303. Mr. George G. Vest, for defendant in error, in support of motion to dismiss for want of jurisdiction: No federal question was presented to and decided by the Supreme Court of Missouri. No such question was necessary to the decision and judgment made, and none such was passed upon by that court; hence this court has no |