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ing to do but take the next or any subsequent train from the city and leave it. There was no one at hand to hinder him. And though it is said that a file of marines or some proper officer could have been sent to arrest, and bring him back, this could only be done by another order of the secretary, and would be another arrest, and a real imprisonment under another and distinct order. Here would be a real restraint of liberty, quite different from the first. The fear of this latter proceeding, which may or may not keep Dr. Wales within the limits of the city, is a moral restraint which concerns his own convenience, and in regard to which he exercises his own will.
The present case bears a strong analogy to Dodge's Case in 6 Mart. (La.) 569. It appeared there that the party who sued out the writ had been committed to jail on execution for debt, and having given the usual bond by which he and his sureties were bound to pay the debt if he left the prison bounds, he was admitted to the privilege of those bounds. The plaintiff in execution failing to pay the fees necessary to the support of the prisoner, the latter sued out a writ of habeas corpus. That eminent jurist, Chief Justice MARTIN, said, on appeal to the supreme court: "It appears to us that the writ of habeas corpus was improperly resorted to. The appellee was under no physical restraint, and there was no necessity to recur to a court or judge to cause any moral restraint to cease. The sheriff did not restrain him, since he had admitted him to the benefit of the bounds; the doors of the jail were not closed on him, and if he was detained it was not by the sheriff or jailer. If his was a moral restraint it could not be an illegal one. The object of the appellee was, not to obtain the removal of an illegal restraint from a judge, but the declaration of the court that the plaintiffs in execution had by their neglect lost the right of detaining him. A judgment declaring such neglect, and pronouncing on the consequences of it, was what the appellee had in view." The judgment awarding the writ was reversed. The analogy to the case be
fore us is striking.
A very similar case was passed upon by the supreme court of Pennsylvania in Respublica v. Arnold, 3 Yeates, 263. A party who had been indicted for arson, and had given bail for his appearance to answer the indictment, applied, while out under bail, to be discharged by writ of habeas corpus, on the ground of delay in the prosecution. The court held that the statute of Pennsylvania, which was a re-enactment of the habeas corpus act of 31 Charles II., c. 2, spoke of persons committed or detained, and clearly did not apply to a person out on bail. And Mr. Justice YEATES very pertinently inquires, "Would not a habeas corpus directed to the bail of a supposed offender be perfectly novel?" And SMITH, J., said that the inclination of his mind was that habeas corpus could not lie to the bail.
In a note to the cases of Rex v. Dawes and Rex v. Kessel, 1 Burr. 638, the same principle is stated, though by whom the note is made does not appear. Both these persons were brought before Lord MANSFIELD, in the king's bench, on a rule against the commissioners to enforce an act of parliament to increase the army. In both cases the ground on which the discharge was asked, was that they were illegally pressed into the service. Lord MANSFIELD discharged one because his statement was found to be correct, and refused the other because his statement was not true. The note to the report, apparently in explanation of the fact that they were not brought before the court by writ of habeas*corpus, and that no objection was taken to the rule by the commissioner, says: "Neither of these could have brought a habeas corpus; neither of them was in custody. Dawes had deserted and absconded, and Kessel had been made a corporal. No objection was made by the commissioner to the propriety of the method adopted." Chief Baron COMYN cites the cases as showing that the parties could not bring habeas corpus, because they were not in custody. 4 Com. Dig. 313, "Habeas Corpus" B.
While the acts of congress concerning this writ are not decisive, perhaps,
as to what is a restraint of liberty, they are evidently framed in their provisions for proceedings in such cases on the idea of the existence of some actual restraint. Section 754, Rev. St., says the application for the writ must set forth "in whose custody he [the petitioner] is detained, and by virtue of what claim or authority, if known;" section 755, that "the writ must be directed to the person in whose custody the party is;" section 757, that this person shall certify to the court or justice before whom the writ is returnable, the true cause of the detention; and by section 758 he is required "at the same time to bring the body of the party before the judge who granted the writ." All these provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary.
(114 U. S. 576)
In case of a person who is going at large, with no one controlling or watching him, or detaining him, his body cannot be produced by the person to whom the writ is directed, unless by consent of the alleged prisoner, or by his capture and forcible traduction into the presence of the court. The record in the present case shows that no such thing was done. The secretary denies that Wales is in his custody, and he does not produce his body; but Wales, on the direction of the secretary, appears without any compulsion, and reports *himself to the court and to Justice Cox, as he did to the court-martial. We concur with the supreme court of the district in the opinion that the record does not present such a case of restraint of personal liberty as to call for discharge by a writ of habeas corpus. In thus deciding we are not leaving the appellant without remedy, if his counsel are right in believing the court-martial has no jurisdiction of the offense of which he is charged. He can make that objection to that court before trial. He can make it before judgment after the facts are all before that court. He can make it before the reviewing tribunal. If that court finds him guilty, and imposes imprisonment as part of a sentence, he can then have a writ to relieve him of that imprisonment. If he should be deprived of office, he can sue for his pay and have the question of the jurisdiction of the court which made such an order inquired into in that suit. If his pay is stopped, in whole or in part, he can do the same thing. In all these modes he can have relief if the court is without jurisdiction, and the inquiry into that jurisdiction will be more satisfactory after the court shall have decided on the nature of the offense for which it punishes him than it can before. And this manner of relief is more in accord with the orderly administration of justice and the delicate relations of the two classes of courts, civil and military, than the assumption in advance by the one court that the other will exercise a jurisdiction which does not belong to it.
The judgment of the supreme court of the District of Columbia is affirmed.
RICHMOND MINING Co. of Nevada v. ROSE and others.
(May 4, 1885.)
1. LAND LAWS-MINING LAND-ALLOWANCE TO DISCOVERER OF MINERAL VEin. The law allows 200 feet of a mining vein to each locator, and an extra 200 feet to the discoverer of the vein. It is not unlawful, then, for such discoverer, with two other persons, to appropriate 800 feet.
MISTAKE IN MEASUREMENT WHOLE CLAIM NOT INVALID THEREFOR
A whole claim is not to be rendered invalid and void for a mistake in measurement which injures no one, and was without design to violate the law.
3. SAME-LACHES OF LOCATOR-QUESTION FOR THE COUrt.
It is for the court, while it has jurisdiction of the case, to decide whether either party, claiming land under the United States land laws, has lost his right by laches or failure to proceed with diligence, and to act accordingly.
4. SAME-CLAIM PENDENTE LITE-EFFECT AS TO CASE.
A claim by a litigant pendente lite to land already in dispute between him and the other litigant will not be heard by the court to prejudice the merits of the case.
In Error to the Supreme Court of the State of Nevada.
Thos. When and Walter H. Smith, for plaintiff in error. A. T. Britton, J. H. McGowen, A. B. Browne, and C. J. Hillyer, for defendants in error. *MILLER, J. This is a writ of error to the supreme court of Nevada. The case presents a conflict of mining claims. The contest began in the state district court for the county of Eureka, Nevada, by defendants in error filing in that court, as plaintiffs, a petition against the Richmond Mining Company. To save repetition and confusion, the parties will be mentioned in this opinion as they are throughout the record, and as they actually were in the state courts, namely, Rose and others as plaintiffs, and the Richmond Mining Company as defendant. This petition or complaint was filed October 21, 1873. A demurrer was filed to it by the defendants November 1st, and an answer November 26th. The complaint alleged that plaintiffs were, and ever since January 20, 1872, had been, the owners of the Uncle Sam mining claim, ledge, lode, and deposit of mineral-bearing rock in the Eureka Mining District, county of Eureka, and state of Nevada, on the western slope of "Ruby Hill." Ă minute description of the claim is then given, with courses and distances with reference to the shaft. It is then alleged that the defendant, unjustly and adversely to plaintiffs, claims an estate in fee in said premises, and has filed in the United States land-office an application for a patent thereto, under the name of the "St. George Ledge and Mine." Plaintiffs, therefore, pray judgment that defendant be barred from all estate or interest in the premises, or any part thereof, or any right of possession. The answer of defendant, filed November 26, 1873, denies any claim to plaintiffs' location, except as it is covered by their claim, the St. George, which does cover a small part of it. As to so much of plaintiffs' claim as is covered by the St. George it asserts a superior right.
The next pleading is an amended answer of the defendant, which sets out the fact that since the commencement of the suit defendant has acquired title by patent from the United States to all that portion of the mining ground in controversy covered by the application for the patent for the St. George claim. This amended answer was filed April 20, 1881, which is seven years and a half after the first or original answer. In September, 1881, the case was tried before the court without a jury, and a judgment was rendered, from which plaintiffs appealed to the supreme court. That court modified the judgment of the court below materially in favor of plaintiffs, and to that judgment the Richmond Mining Company, the defendant below, prosecutes this writ of error. The judge of the district court of the state made a full finding of the facts in the case on which he rendered judgment, and on those facts the case was heard and decided in the supreme court of the state, and so it must be here. According to this finding the plaintiffs sunk their shaft on a mineral lode, staked and marked out their claim, gave due notice of it, and did the necessary work on it to perfect their right to the mine. In all this they were prior in point of time to the operations of defendant on their St. George claim. It may, therefore, be assumed that unless some of the objections to the claim of plaintiffs set up by defendant are valid, the judgment of the state court must stand. We shall examine these objections in such order as seems convenient.
1. The one much, if not chiefly, relied on is that the claim covers 800 lineal feet of the lode; when, there being only three locators, both by the act of congress and the local laws of that mining district, only 200 feet could be appropriated to each locator, and therefore this excess of 200 feet over the 600, which these three could locate, renders the whole claim void. The law, however, allowed to each locator who was the discoverer of the vein on which the
location was made, 200 feet additional for his merit as discoverer. We hardly think it needs discussion to decide that the inclusion of larger number of lineal feet than 200, renders a location, otherwise valid, totally void. This may occur, and often must occur, by accident of the surveyor, or other innocent mistake, where there exists no intention to claim more than the 200 feet. Must the whole claim be made void by this mistake, which may injure no one, and was without design to violate the law? We can see no reason, in justice or in the nature of the transaction, why the excess may not be rejected and the claim be held good for the remainder, unless it interferes with rights previously acquired. It appears by the facts found that 140 feet of the east end of plaintiffs' location is lost to them by the superior right of the Tip Top claim, leaving only 60 feet of excess; and this, if it were necessary, might be excluded by the government at the other or western end of the claim when it comes to issue the patent; which would leave plaintiffs only the 600 feet in one body, in regular form. This also would interfere with no prior rights, and would give plaintiffs the benefit of their claim to the extent of 200 feet for each locator. But, if it were necessary, we should agree with the supreme court of Nevada that Rose, one of the plaintiffs, was entitled to an additional 200 feet, as discoverer of the vein on which the claim is located. At the time this location was made there were many claims asserted for veins discovered in Ruby Hill, and most of the claimants believed that they were in each instance the discoverer of a new vein or lode. Rose entertained the same belief when he made his claim, and therefore asserted his right to 200 additional feet along this vein as discoverer. It was supposed some five or six years after this, and after Rose and his companions had spent their money and labor in developing their mine, that the whole Ruby Hill deposit was one zone or lode of great width, and it has been held in the Eureka Case, 4 Sawy. 302, that, though there were many small, detached fissures or veins, distinct from each other, composing this zone, it is, within the meaning of the act of congress concerning locations, to be treated as one lode or vein. But Rose, or his vendor, Phillips, was the discoverer of this vein within the lode, and as such asserted in good faith his right to an additional 200 feet. We do not see any reason, within the spirit of the law, where the claim as discoverer injures no one at the time it is made, and it has been made in good faith in the reliance on the actual discovery of one of these constituent veins, and acted on for five years before knowledge of any mistake, it should not justify the claim for the 200 feet as discoverer.
2. The next objection to be noticed is that the court should have held that the patent obtained by defendant from the United States, which covered all that defendant claimed, should prevail, as it conveyed the legal title. This proposition goes to the merits of the case, and, if sound, covers the field of controversy. Its soundness depends on the statutes of the United States, and mainly on sections 6 and 7 of the act of congress of May 10, 1872, (17 St. 92,) which are embodied in the Revised Statutes in sections 2325 and 2326. By the first of these sections the applicant for a patent for a mining claim is required to file with his application the evidence of his right to it, and the register is to cause a publication of the application to be made for 60 days, during which time any adverse claimant to any part of the location described in this application is required to give notice of contest by filing a protest in the land-office.
As no question is raised in this case that defendant filed his claim properly, and plaintiffs made due protest within the 60 days, and as the controversy arises out of the subsequent proceedings under the next section, that is copied here in full:
"Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, ex
cept the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the clain, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the register of the land-office, together with the certificate of the surveyor general, that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the register to the commissioner of the general land-office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the surveyor general, whereupon the register shall certify the proceedings and judgment roll to the commissioner of the general land-office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining claim to any person whatever."
Under this provision plaintiffs filed with the register, on the twenty-fourth of September, 1873, their protest, to which no objection is perceived. On October 21st their complaint was filed in the proper court of Nevada in support of their protest. But they did not pay any docket fee, nor any other fee, and no fees were paid by them until August, 1874. It is argued that, by reason of the failure to pay these fees within the time required by the statute of Nevada, the court acquired no jurisdiction of the case until after the 30 days within which, by the foregoing section, the action was to be commenced; and also that, because no process to appear was issued or served on the defendants within 30 days, the whole proceeding is void. There are several sufficient answers to these suggestions. (1) We do not doubt that within the meaning of the act of congress the plaintiffs did commence proceedings by filing their complaint on the twenty-first of October, eight days inside of the 30 days which it allowed. (2) Defendants, having demurred within a few days after this commencement of the suit, and answered, and gone to trial without raising this objection in the proper time, cannot be permitted to do it now. (3) What constitutes the commencement of an action in a state court, being matter of state law, the decision of that court on this point is not a federal question, and is not therefore reviewable here. These propositions also answer the objection of non-payment of fees to the state, which is purely a matter of state concern, and if it could in any manner avail the defendant, it must have been by motion at the time, and before demurring or answering to the merits. It may also be added that, as the clerk paid the fees into the county treasury in due time, it became simply a matter of debtor and creditor between him and plaintiffs.
A question of more difficulty arises out of the facts that, after the answer of defendant in 1873, the cause was put on the calendar for trial, but no trial was had for several terms by reason of negotiations for a settlement of the controversy; and the last order for continuance was had in March term, 1874, on motion of counsel for defendant. In September, 1876, the defendant produced before the register and receiver of the land-office the certificate of the