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tract; and that in running such tunnel they intersected and crossed
three veins, one of which was thereafter, and in 1879, located as the
Goodell vein or lode. The vein thus crossed and disclosed by the
tunnel was from seventy-five to seventy-eight feet from its mouth, of
about fifteen inches in width, with distinct walls of porphyry on either
side, a vein whose existence was obvious to even a casual inspection
by any one passing through the tunnel. At the trial the court ruled
that if the vein was known to the placer patentee at or before entry
and payment, although not known at the time of the application for
the patent, it was excepted from the property conveyed by the patent.

Held,
(1) That this vein was a known vein at the time of the application for

the placer patent;
(-) That the plaintiff was bound to know of the existence of the tunnel,

and what an examination of it would disclose;
(3) That it was a question for the jury whether there was sufficient gold

or silver within the vein to justify exploitation, and to be properly a

“ known vein or lode" within the meaning of Rev. Stat. & 2333;
(1) That the time at which the vein or lode within the placer must be

known in order to be excepted from the grant of the placer patent is
the time at which the application for that patent was made; but that
the plaintiff suffered no injury from the error in the instruction of the
court below in that respect, as the facts which implied knowledge at
the time of the entry and payment existed also at and before the date

of the application;
(5) That the neglect of the parties who ran the tunnel to at once develop

the vein was of no account, as it appeared that there was a prevalent
belief that a rich blanket vein was underlying the entire country, and

this was the object of pursuit by all;
(0) That the admission of evidence respecting that blanket vein was im-

material, as the attention of the jury was directed by the court to the
vein disclosed by the tunnel as the known vein, upon which the rights
of defendant rested. Iron Silver Mining Co. v. Mike & Starr Gold and

Silver Mining Co., 394.
2. A placer patent conveys to the patentee full title to all lodes or veins

within the territorial limits not then known to exist; and mere specu-
lation and belief, based, not on any discoveries in the placer tract, or
any tracings of a vein or lode adjacent thereto, but on the fact that
quite a number of shafts, sunk elsewhere in the district, had disclosed
horizontal deposits of a particular kind of ore, which, it was argued,
might be merely a part of a single vein of continuous extension through
all that territory, is not the knowledge required by the law. Sullivan
v. Iron Silver Mining Co., 431.

MISREPRESENTATION.
See EQUITY, 1;

EVIDENCE, 4.

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MORTGAGE.
Under the law of Illinois, a grantee who by the terms of an absolute con-

veyance from the mortgagor assumes the payment of the mortgage
debt, is liable to an action at law by the mortgagee; the relation of the
grantee and the grantor towards the mortgagee is that of principal
and surety; and therefore a subsequent agreement of the mortgagee
with the grantee, without the assent of the grantor, extending the time
of payment of the mortgage debt, discharges the grantor from all per-
sonal liability for that debt. Union Mut. Life Ins. Co. v. Hanford, 187.

See RAILROAD, 1, 2.

NATIONAL BANK.
The conversion of a state bank into a national bank, with a change of

name, under the National Banking Act, does not affect its identity, or
its right to sue upon liabilities incurred to it by its former name.
Michigan Insurance Bank v. Eldred, 293.

NATIONAL BOARD OF HEALTH.
The National Board of Health had no authority to incur any liability upon

the part of the government for salaries or other expenses in excess of
the amounts appropriated by Congress for such purposes; and the
plaintiff in error did not perform services as a member of that board,
or as its chief clerk, or its secretary, or as a disbursing agent of the
Treasury Department under any implied contract that he should be
compensated otherwise than out of the moneys specifically appropri-
ated to meet the expenses incurred by the board in the performance of
the duties imposed upon it. Dunwoody v. United States, 578.

NATURALIZATION.
Boyd was born in Ireland in 1834, of Irish parents. His father emigrated

to the United States in 1844, with all his family, and settled in Ohio,
in which State he has since resided continuously. In 1849 the father
duly declared his intention to become a citizen of the United States,
but there is no record or other written evidence that he ever completed
his naturalization by taking out his naturalization certificate after the
expiration of the five years. For many years after the expiration of
that time, however, he exercised rights and claimed privileges in Ohio,
which could only be claimed and exercised by citizens of the United
States and of the State. The son, on attaining majority, voted in
Ohio, under the belief that his father had become a citizen. In 1856
he removed to Nebraska, in which State he resided continuously until
the commencement of this action. He voted there at al elections, held
various offices there which required him to take an oath to support the
Constitution of the United States, served in the army during the war,
was a member of a convention to frame a state constitution, was mayor
of Omaha and, after thirty years of unquestioned exercise of such

rights and privileges, was elected governor of the State, of Nebraska,
receiving a greater number of votes than any other person voted for.
He took the oath of office, and entered on the discharge of its duties.
His predecessor, as relator, filed an information in the Supreme Court
of Nebraska, in which were set forth the facts as to the declaration of
intention by Boyd's father, and it was further averred that the father
did not become a citizen during the son's minority, nor until the Octo-
ber term of the Court of Common Pleas in Muskingum County, Ohio,
in the year 1890, when the son was 56 years of age, and it was claimed
that Boyd, the son, never having himself been naturalized, was not, at
the time of his election, a citizen of the United States, and was not,
under the constitution and laws of Nebraska, eligible to the office of
governor of that State, and the relator therefore prayed judgment that
Boyd be ousted from that office, and that the relator be declared
entitled to it until a successor could be elected. To this information
the respondent, in his answer, after stating that his father, on March
5, 1849, when the respondent was about 14 years of age, made before
a court of the State of Ohio his declaration of intention to become a
citizen of the United States, and averring “that his father, for 42
years last past has enjoyed and exercised all of the rights, immunities
and privileges and discharged all the duties of a citizen of the United
States and of the State of Ohio, and was in all respects and to all
intents and purposes a citizen of the United States and of the State of
Ohio," and particularly alleging his qualifications to be a citizen, and
his acting as such for forty years, voting and holding office in that
State, further distinctly alleged “on information and belief, that prior
to October, 1854, his father did in fact complete his naturalization in
strict accordance with the acts of Congress known as the naturalization
laws, so as to admit and constitute him a full citizen thereunder, he
having exercised the rights of citizenship herein described, and at said
time informed respondent that such was the fact. To this answer the
relator interposed a demurrer, and on these pleadings the court below
entered a judgment of ouster against Boyd, to which judgment a writ

of error was sued out from this court. Held,
(1) That as the defence relied on arose under an act of Congress, and pre-

sented a question of Federal law, this court had jurisdiction to review it;
(2) That the fact that the respondent's father became a citizen of the

United States was well pleaded, and was admitted by the demurrer;
(3) That upon this record Boyd had been for two years, next preceding his

election to the office of governor, a citizen of the United States and of

the State of Nebraska;
(4) That where no record of naturalization can be produced, evidence that

a person having the requisite qualifications to become a citizen did in
fact and for a long time vote, and hold office, and exercise rights belong-
ing to citizens, is sufficient to warrant a jury in inferring that he has
been duly naturalized as a citizen.

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And it was further, Held, by Fuller, C. J., and BLATCHFORD, LAMAR,

and BREWER, JJ.:
(5) That, the Supreme Court having denied to Boyd a right or privilege

existing under the Constitution of the United States, this court had
jurisdiction, on that ground also, to review the judgment of the

Supreme Court of Nebraska ;
(6) That, even if the father did not complete his naturalization before the
2. Courts incline to sustain a patent to the man who takes the final step in

son attained majority, the son did not lose the inchoate status which he
had acquired through his father's declaration of intention to become a
citizen, and that he occupied in Nebraska the same position which his

father would have occupied had he emigrated to that State;
(7) That within the intent and meaning of the acts of Congress he was

made a citizen of the United States and of the State of Nebraska
under the organic and enabling acts of Congress, and the act admit-

ting that State into the Union;
(8) That Congress has the power to effect a collective naturalization on the

admission of a State into the Union, and did so in the case of Nebraska;
(9) That the admission of a State on an equal footing with the original

States involves the adoption, as citizens of the United States, of those
whom Congress makes members of the political community, and who
are recognized as such in the formation of the new State with the

assent of Congress ;
(10) That the rule prescribed by § 4 of the act of April 14, 1802, 2 Stat.

155, c. 28, was to be a uniform rule, and there was no reason for limit-
ing such a rule to the children of those who had been already natural-
ized, but, on the contrary, the intention was that the act of 1802
should have a prospective operation. Boyd v. Thayer, 135.

NEBRASKA.
See RIPARIAN OWNER.

NEW TRIAL.
If the whole evidence introduced by the defendant upon one issue is in-

competent to support it, and is admitted and considered against the
plaintiff's exception, and the judge, by ruling that this evidence is
decisive against the plaintiff's right to recover, without regard to
another issue in the case, induces the plaintiff not to put in evidence
on the other issue, the plaintiff is entitled to a new trial, although he
has not also excepted to a direction to return a verdict for the defend.
ant. Michigan Insurance Bank v. Eldred, 293.

PATENT FOR INVENTION.
1. The invention secured to Joseph F. Glidden by letters patent No. 157,124,

dated November 24, 1874, for an improvement in wire fences, involved
invention, and the patent therefor is valid. Barbed Wire Patent, 275.

the invention which turns failure into success. Ib.
3. When an unpatented device, the existence and use of which are proven

only by oral testimony, is set up as a complete anticipation of a patent,
the proof sustaining it must be clear, satisfactory, and beyond a rea-

sonable doubt. Ib.
4. Letters patent No. 228,186, issued June 1, 1880, to Maurice Gandy, for

an improved belt or band for driving machinery and an improved me-
chanical process for manufacturing the same, are valid, and the novelty
and utility of the invention protected by it are not disturbed by the

evidence in this case. Ganily v. Main Belting Co., 587.
5. The “public use or sale" of an invention “for more than two years prior

to" the "application” for a patent for it, contemplated by section
4886 of the Revised Statutes as a reason for not issuing the patent or
for its invalidation if issued, must be limited to a use or sale in this
country. 16.

POST OFFICE DEPARTMENT.
See CoxstiTUTIONAL LAW, A, 1;

Mails, TRANSPORTATION OF.

PLACE OF TRIAL.
See CRIMINAL LAW, 1.

PLEADING.
See LOCAL LAW;

NATURALIZATION.

PRACTICE.
As the judgment in this case rests upon a sound principle of law this court

affirms it, although it was put by the court below upon an unsound
principle. Sullivan v. Iron Silver Mining Co., 431.

See CHARGE TO JURY;

EXCEPTION;
New Trial.

PRINCIPAL AND SURETY.

See MORTGAGE.

PROHIBITION, WRIT OF.
1. Prohibition will not go after judgment and sentence, unless want of

jurisdiction appears on the face of the proceedings; but, before judg-
ment, the superior court can examine not simply the process and
pleadings technically of record, but also the facts and evidence upon
which action was taken. In re Cooper, 472.

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