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;
(2) 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; (4) 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;
(6) 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.
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.
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.
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 all 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.
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 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.
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.
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.
2. Courts incline to sustain a patent to the man who takes the final step in 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. Gandy 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. Ib.
POST OFFICE DEPARTMENT.
See CONSTITUTIONAL LAW, A, 1; MAILS, TRANSPORTATION of.
PLACE OF TRIAL.
See CRIMINAL LAW, 1.
PLEADING.
See LOCAL LAW;
NATURALIZATION.
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.
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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