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2. The record shows that the cause came on for trial without a jury, a trial

by jury having been expressly waived by written consent of the parties,
that a referee was duly appointed by similar consent, in accordance
with the rules and customs of the District in which the trial was had,
and that his findings, rulings and decisions were made those of the
court. Held, that the question whether the judgment rendered was
warranted by the facts found was open for consideration in the Circuit
Court of Appeals, and is so here. Chicago, Milwaukee and St. Paul
Railway Co. v. Clark, 353.


1. Where a plaintiff asserts, as bis cause of action, a claim which he can-

not be legally permitted to sustain by evidence, a mere ad damnum
clause will not confer jurisdiction on the Circuit Court, but the court
on motion or demurrer, or of its own motion, may dismiss the suit.

North American Transportation & Trading Co. v. Morrison, 262.
2. In the circumstances disclosed by the plaintiff's declaration, and in the

certificates of the trial judge, the defendant company, though liable
in a court of competent jurisdiction for the other claims asserted, can-
not be held for the amount of wages or profits which the plaintiff sug-
gests he might have earned had he reached Dawson City. 16.







1. A national bank was closed by order of the Comptroller of the Currency

and a receiver appointed. An assessment was made upon the holders
of stock. Overton and Hoffer were among those who were assessed,
and payment not having been made, suit was brought against them.
Service was made upon H., but not upon 0., who was very ill, and who
died without service having been made upon him. He left a will, under
which J. P. O. was duly appointed his executor. The executor was
summoned into the suit by a writ of scire facias. A motion was made
to set aside the scire facias and the attempted service thereof, which
motion was granted. The executor being substituted in the place of
the deceased as defendant, the court decided that it had acquired no
jurisdiction over the deceased, and could acquire none over his exec-
utor. Thereupon the receiver applied to this court for a writ of man-
damus to the Judges of the Circuit Court of the United States for the
Ninth Circuit commanding them to take jurisdiction and proceed against

J. P. O. as executor of the last will and testament of 0., deceased, in
the action brought by the receiver to recover the assessments. Held:
(1) That mandamus was the proper remedy, and the rule was made
absolute; (2) that the action of the Circuit Court in setting aside the
scire facias was here for review; (3) that scire fucias was the proper
mode for bringing in the executor, and under Rev. Stat. $ 955, it gave
the court jurisdiction to render judgment against the estate of the
deceased party in the same manne" as if the executor had voluntarily

made himself a party. In re Connaway, Receiver, 421.
2. An attachment sued out against a bank as garnishee is not an attach-

ment against the bank or its property, nor a suit against it within the
meaning of section 5242 of the Revised Statutes. Earle v. Pennsyl-

vania, 419.
3. When the Chestnut Street National Bank suspended and went into the

hands of a receiver, the entire control and administration of its assets
were committed to the receiver and the comptroller, subject, liowever,
to any rights or priority previously acquired by the plaintiff through

the proceedings in the suit against Long. Ib.
4. The state court had no authority to order execution in favor of the plain-

tiff of any dividends upon the money on deposit in the bank to Long's
credit at the time the bank was served with the attachment, and direct
the sale of the shares of stock originally held by the bank as collateral

security. Ib.
5. A receiver of a National Bank may be notified, by service upon him of

an attachment issued from a state court, of the nature and extent of
the interest sought to be acquired by the plaintiff in the attachment in
the assets in his custody; but, for reasons stated in Earle v. Pennsyl-
vania, ante, 449, such an attachment cannot create any lien upon specific
assets of the bank in the hands of the receiver, nor disturb his custody
of those assets, nor prevent him from paying to the Treasurer of the
United States, subject to the order of the Comptroller of the Currency,
all moneys coming to his hands, or realized by him as receiver from
the sale of the property and assets of the bank. Earle v. Conway, 456.

In this case it was rightly decided in the court below, that in determining

under the provisions of Rev. Stat. sec. 902, whether the Spanish vessels
sunk or destroyed at Manila were of inferior or superior force to the
American vessels engaged in that battle, the land batteries, mines and
torpedoes, not controlled by those in charge of the Spanish vessels,
but which supported those vessels, were to be excluded altogether
from consideration, and that the size and armaments of the vessels
sunk or destroyed, together with the number of men upon them, were
alone to be regarded in determining the amount of the bounty to be
awarded. Dewey v. United States, 510.

The fourth and fifth sections of the River and Harbor Act, approved Sep-

tember 19, 1890, provide: “$ 4. Tliat section nine of the River and

Harbor Act of August 11, 1888, be amended and reënacted so as to
read as follows: That whenever the Secretary of War shall have good
reason to believe that any railroad or other bridge now constructed or
which may hereafter be constructed over any of the navigable water-
ways of the United States is an unreasonable obstruction to the free
navigation of such waters on account of insufficient height, width or
span, or otherwise, or where there is difficulty in passing the draw-
opening of the draw-span of such bridge by rafts, steamboats or other
water crafts, it shall be the duty of said Secretary, first giving the
parties reasonable opportunities to be heard, to give notice to the per-
sons or corporations owning or controlling such bridge so to alter the
same as to render navigation through or under it reasonably free, easy
and unobstructed; and in giving such notice he shall specify the changes
to be made and shall prescribe in each case a reasonable time in which
to make them. If at the end of such time the alteration has not been
made, the Secretary of War shall forthwith notify the United States
District Attorney for the district in which such bridge is situated to
the end that the criminal proceedings mentioned in the succeeding
section may be taken. § 5. That section ten of the River and Harbor
Act of August 11, 1888, be amended and reënacted so as to read as
follows: That if the persons, corporations or associations owning or
controlling any railroad or other bridge shall, after receiving notice to
that effect, as hereinbefore required, from the Secretary of War, and
within the time prescribed by him, wilfully fail or refuse to remove
the same, or to comply with the lawful order of the Secretary of War
in the premises, such person, corporation or association shall be
deemed guilty of a misdemeanor, aņd, on conviction thereof, shall be
punished by a fine not exceeding $5000, and every month such person,
corporation or association shall remain in default as to the removal or
alteration of such bridge, shall be deemed a new offence and subject
the person, corporation or association so offending to the penalties
above described." 26 Stat. 426, 453, c. 907. Proceeding under that
act the Secretary of War gave notice to the County Commissioners of
Muskingum County, Ohio, to make on or before a named day certain
alterations in a bridge over the Muskingum River, Ohio, at Taylors-
ville in that State. The Commissioners, although having control of
the bridge did not make the alterations required and were indicted
under the act of Congress. Held, that however broadly the act of
Congress may be construed it ought not to be construed as embracing
officers of a municipal corporation owning or controlling a bridge who
had not in their hands, and under the laws of their State could not ob-
tain, public moneys that could be applied in execution of the order of
the Secretary of War within the time tixed by that officer to complete
the alteration of such bridge. Rider v. United States, 251.

1. As the parties below proceeded upon a mutual mistake of law in con-

struing and applying the statute the court thinks that the practical in-
justice that might result from an affirinance of the judgment may be
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.

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. Florsky, 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 lauds 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.

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

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