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by a Spanish or Mexican claim, until it was barred by lapse of time or rejected.

This is, in our opinion, the true interpretation of the act of 1851. Until recently, it governed the action of the Interior Department upon the advice of the law officers of the government (11 Op. Att’y-Gen. 493 ; 13 id. 388), and was, at least by implication, sanctioned by this court in Frisbie v. Whitney, 9 Wall. 187. No subsequent legislation conflicts with it. On the contrary, the excepting words in the sixth section of the act of March 3, 1853, introducing the land system into California (10 Stat. 246), clearly denote that lands such as these at the time of their withdrawal were not considered by Congress as in a condition to be acquired by individuals or granted to corporations. This section expressly excludes from pre-emption and sale all lands claimed under any foreign grant or title. It is said that this means “lawfully” claimed; but there is no authority to import a word into a statute in order to change its meaning. Congress did not prejudge any claim to be unlawful, but submitted them all for adjudication. Besides the act of March 3, 1853, which authorized the settlement and purchase of the lands released by the operation of the law of 1851, there was a general law (id. 244) passed on the same day, which conferred upon a settler on lands theretofore reserved on account of claims under foreign grants, then or thereafter declared by the Supreme Court to be invalid, the rights granted by the pre-emption law, after the lands should have been released from reservation, a class of lands which, from an early day, it had been the policy to reserve until the adjustment of all such claims. See act of 1811, 2 Stat., pp. 664, 665, sects. 6, 10. This provision clearly implies that no right of pre-emption previously attached to lands of that description by reason of settlement and cultivation.

It is unnecessary to dwell longer upon this question, or to review subsequent statutes touching the government lands in California. It suffices to say, that there is nothing in any of them which weakens the construction we have given to the act of 1851. This controversy depends upon that act and the Pacific Railroad acts which we have cited.

The appellee invokes the doctrine, that judgments of a court

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during a term are, by relation, considered as having been rendered on the first day thereof. There is a fiction of law that a term consists of but one day; but such a fiction is tolerated by the courts only for the purposes of justice. Gibson v. Chouteau, 13 Wall. 92. To antedate the judicial rejection of a claim, so as to render operative a grant which would be otherwise without effect, does not promote the ends of justice, and cannot be sanctioned.

As the premises in controversy were not public lands, either at the date of the grant or of their withdrawal, it follows that they did not pass to the railroad company. Decree reversed, and cause remanded with directions to dismiss

the bill.

MR. JUSTICE FIELD, with whom concurred MR. JUSTICE STRONG, dissenting.

I am not able to agree with the majority of the court in this case. The only exception made by Congress from its grant to the Western Pacific Railroad Company consisted of lands within certain limits, which, at the time the line of the road was definitely fixed, had been “sold, reserved, or otherwise disposed of by the United States,” or to which a pre-emption or homestead claim had then attached. The exception was intended to keep the public lands open to settlement and sale until the line of the road was established. I cannot understand how the presentation of a fraudulent claim to any portion of the lands within the limits designated, founded upon an invalid or forged Mexican grant, could change their character as public lands, or impair the title of the coinpany, or have any other effect than to subject the company to the annoyance and expense of exposing and defeating the claim. Nor can I perceive the bearing upon the case of the act of March 3, 1853, “ to extend pre-emption rights to certain lands therein mentioned ;" for that act applies only to pre-emption rights, and by its terms is limited to lands previously reserved.

I think the judgment of the court below should be affirmed.

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ABEYANCE.
The maxim, that a fee cannot be in abeyance, is not of universal appli-

cation; nor has it any weight in an inquiry as to the intent and
effect of the act of July 17, 1862 (12 Stat. 589), and the joint reso-
lution of even date therewith, for the confiscation of enemies' prop-

erty. Wallach et al. v. Van Riswick, 202. ADMIRALTY. See General Average. 1. Sailing rules and regulations prescribed by law furnish the paramount

rule of decision, whenever they are applicable; but where, in any case, a disputed question of navigation arises, in regard to which neither they, nor the rules of this court regulating the practice in admiralty, have made provision, evidence of experts as to a general usage regulating the matter is admissible. The City of Washing

ton,” 31. 2. Where two vessels under steam, meeting end on, or nearly end on,

neglect, until it is too late to avoid a collision, to comply with the rule requiring each to port her helm, it is no defence for either to prove that she ported her helm before the collision actually occurred. The act of compliance must be seasonable; otherwise it is without

substantial merit. The America,” 432. 3. In this case, as both vessels were in fault, the damages, and the costs

in the courts below, should be apportioned between them. Id. 4. Where, in order to avoid a collision between two vessels propelled by

steam, one going with and the other against the tide, it is conceded that one should stop, it is the duty of the vessel proceeding against the tide to do so, as her movements can be controlled with less diffi

culty than those of the other vessel. The Galatea,” 439. 6. Where a collision occurs at sea, each vessel being at fault, and damage

is thereby done to an innocent party, a decree should be rendered, not against both vessels in solido for the entire dainage, interest, and costs, but against each for a moiety thereof, so far as the stipulated value of each extends; and it should provide that any balance of such moiety, over and above such stipulated value of either vessel, or which the libellant shall be unable to collect or enforce, shall be

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ADMIRALTY (continued).

paid by the other vessel, or her stipulators, to the extent of her stipu-
lated value beyond the inoiety due from her. The Alabama" and

the Game-Cock," 695.
AGENCY. See Contracts, 6.
AGENT. See Captured or Abandoned Property, 2, 6–8.
ALEXANDRIA, COUNTY OF. See District of Columbia.
ALLOWANCES. See Honorable Discharge.
Under the term “ allowances " of a soldier, bounty is included. United

States v. Landers, 77.
AMENDMENTS TO THE CONSTITUTION. See Constitutional Law,

1, 3-5, 11, 13, 15, 16.
AMNESTY.
The amnesty proclamation of the President of the United States of

Dec. 25, 1868, did not give back property which had been sold under
the Confiscation Act, or any interest in it, either in possession or

expectancy. Wallach et al. v. Van Riswick, 202.
APPEALS. See Jurisdiction, 6.
“ APPLICATION AND DEMAND." See Pleading, 3; Power of Attor-

ney.
“ APPROPRIATE LEGISLATION.” See Constitutional Law, 3, 6.
ARGUMENTS TO A JURY, OPEN AND CLOSE OF. See Prac-

tice, 17.
ASSIGNEE IN BANKRUPTCY. See Bankruptcy, 2; Jurisdiction, 11-

13; Set-off, 2.
ASSIGNOR. See Bills of Exchange and Promissory Notes.

BANKRUPTCY. See Evidence, 2 ; Federal Question ; Jurisdiction, 11-14.
1. W. & Co., having recovered judgment in a State court, sued out an

execution thereon, which was levied upon the property of the defend-
ant. He was subsequently declared a bankrupt, and an injunction
issued by the District Court of the United States restraiving W. & Co.
and the sheriff from disposing of that property. W. & Co. thereupon
filed their petition in the latter court, praying that the injunction be
80 modified as to allow the sheriff to sell. An order was made grant-
ing the prayer of the petition, prescribing the time and manner of
the sale, and directing that the proceeds should be brought into the
District Court. This order was served upon the sheriff, wbo, pur-
suant thereto, sold the property, and paid the proceeds into court.
Held, that the sheriff was not liable to W. & Co. for not paying the

upon

their execution. O'Brien v. Weld et al., 81.
2. A., relying upon the representations of D., that the firm of B., C., and

money to them

BANKRUPTCY (continued).

D., of which he was a member, was perfectly solvent, and that B.
was wealthy, sold it goods. D. having, without the knowledge of
A., retired from the firm, an arrangement was entered into whereby
the proceeds of the sale of such goods remaining in the hands of the
agents of the firm of B., C., and D., were applied to discharge the
debt due to A., and the unsold portion of such goods returned to
him. A., at the time, believed that B. and C. were insolvent; and
they were within four months from such arrangement adjudged bank-
rupts. Held, that the representations of D. were a fraud upon A.,
on account of which he could have rescinded the contract of sale, and
followed the goods wherever he could find them; and the goods not
having lost their identity, nor become part of the permanent stock
of B. and C., upon which they obtained credit, their assignee cannot,
in the absence of actual fraud in the arrangement for the payment
of such proceeds, recover them in a suit against A. Montgomery,

Assignee, v. Bucyrus Machine Works, 257.
3. The United States is entitled to priority of payment out of the effects

of its bankrupt or insolvent debtor, whether he be principal or surety,
or be solely, or only jointly with others, liable, and it is immaterial

where the debt was contracted. Lewis, Trustee, v. United States, 618.
4. The United States was the creditor of a firm, A., B., & Co., doing

business in London, and consisting of several persons, some of whom
resided there. The others resided in this country, and, with another
partner, constituted the firm of A. & Co. The members of the latter
firm were duly declared bankrupt, and a trustee was appointed under
the forty-third section of the Bankrupt Act of March 2, 1867. Held,
that the relations of the bankrupt members of the firm of A., B.,
& Co. to the United States are the same as if they were severally
liable to the United States; and that the United States is entitled to
the payment of its debt out of their separate property, in preference
and priority to all other debts due by them or either of them, or by

the firm of A. & Co. Id.
BELLIGERENCY. See Insurrection.
BILL OF REVIEW. See Practice, 13.
BILLS OF EXCHANGE AND PROMISSORY NOTES.
By the statute of Illinois, the assignor of a promissory note is liable on

his contract of assignment, only in case the assignee has, by the
exercise of due diligence, obtained judginent against the maker, and
a return of nulla bona, unless such suit would have been impracticable

or unavailing. Wills et al. v. Claflin et al., 135.
BOARD OF EQUALIZATION. See State Railroad Taz, 6.
BOARD OF LIQUIDATION. See Louisiana Consolidated Bonds.
BONDHOLDERS. See Equity, 2; Municipal Bonds, 2-4, 8, 10–13.

49

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VOL. II.

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