utive authority of Pennsylvania, a fugitive from the justice of that common. wealth? We are not justified by the record before us in saying that the governor of Utah should have held the evidence inadequate to establish that fact. The warrant of arrest refers to an affidavit taken before a notary public of Pennsylvania, showing Reggel's flight from that commonwealth. There was

no such affidavit; but the reference, manifestly, was to the affidavit made by Frederick Gentner, which recited the finding by the grand jury of the city and county of Philadelphia, of a true bill of indictment charging Reggel with "the crime of false pretenses," and stating that he "is a fugitive from justice," and was then in Salt Lake City, Utah territory. This is sworn to, and is attested by the seal of the court of quarter sessions,—the court in which the prosecution is pending. It is not entirely clear from the record, as presented to us, what is the official character of the person before whom the affidavit was made. The reasonable inference is that the affidavit was made in the court where the prosecution is pending, and that it is one of the papers accompanying the requisition of the governor of Pennsylvania, and which he

certified to be authentic.

It is contended that Gentner's affidavit that Reggel is a fugitive from justice is the statement of a legal conclusion, and is materially defective in not setting out the facts upon which that conclusion rested. Although that statement presents, in some aspects of it, a question of law, we cannot say that the governor of Utah erred in regarding it as the statement of a fact, and as sufficient evidence that appellant had fled from the state in which he stood charged with the commission of a particular crime, on a named day, at the city and county of Philadelphia; especially, as no opposing evidence was brought to his attention. If the determination of that fact by the governo of Utah upon evidence introduced before him is subject to judicial review upon habeas corpus, the accused, in custody under his warrant,-which recites the demand of the governor of Pennsylvania, accompanied by an authentic indictment charging him, substantially in the language of her statutes, with a specific crime committed within her limits,-should not be discharged merely because, in the judgment of the court, the evidence as to his being a fugitive from justice was not as full as might properly have been required, or because it was so meager as perhaps to admit of a conclusion different from that reached by him. In the present case, the proof before the governor of Utah may be deemed sufficient to make a prima facie case against the appellant as a fugitive from justice within the meaning of the act of congress. Judgment affirmed.

(115 U. S. 56)

299.

CRUMP O. THURBER.
(May 4, 1885.)

REMOVAL OF CAUSE-CITIZENSHIP-ACTION BY STOCKHOLDERS AGAINST CORPORATION. A suit in equity brought by C., a citizen of one state, against a corporation of the same state, and T., a citizen of another state, and W., to obtain a decree that C. owns shares of the stock of the corporation standing in the name of W., but sold by him to T., and that the corporation cancel on its books the shares standing in the name of W., and issues to C. certificates therefor, cannot be removed by T. into the circuit court of the United States, under section 2 of the act of March 3, 1875, (18 St. 470;) because the corporation is an indispensable party to the suit, and is a citizen of the same state with C.

Appeal from the Circuit Court of the United States for the District of Kentucky.

G. C.Wharton, for appellant. E. More, for appellee.

* BLATCHFORD, J. This suit was commenced by the filing in the Louisville chancery court, in the city of Louisville, Kentucky, on the twenty-sixth of November, 1880, of a petition in equity, by W. H. Crump against James Wil

son, and the Southern Dairy Company, a Kentucky corporation. The substance of the petition was that Crump had, under a contract with Wilson, assisted him in selling rights under a patent which he controlled; that, by the terms of the contract, Wilson was to receive $12,000 for the right for Kentucky, and $8,000 for the right for Indiana, and all received above those sums for either state was to be divided equally between Crump and Wilson; that the rights for Kentucky and Indiana were disposed of to the Southern Dairy Company, and 1,000 shares of its capital stock, of $100 each, out of 2,000 shares, were issued to Wilson, in payment for the rights, of which he had sold 100 shares for $5,000; that he had received more in value than the $20,000; that he refused to give to Crump any part of the stock or of the money; that a large amount of the stock issued to Wilson still stood on the books of the corporation in his name; and that Crump was entitled to 300 shares thereof. The petition prayed that Crump be adjudged to own 300 shares of the stock; and that the corporation be ordered to cancel on its books the stock standing in the name of Wilson, to that extent, and to issue to Crump certificates for 300 shares.

The corporation was served with process. The petition was then amended by stating that no less than 250 shares of the stock still stood in the name of Wilson; and process on that was served on the corporation. It then filed an answer, stating that 250 shares of his stock stood, when the petition was filed, in the name of Wilson, on its books, and had not since been transferred thereon; that before the suit was brought one H. K. Thurber bought the 250 shares from Wilson, and received from him the certificates thereof, by indorsement and delivery, and still held and owned them, and he had notified the president of the corporation of that fact, and claimed the right to have the stock transferred into his own name; and that it was willing to obey the judgment of the court, but ought not to be ordered to cancel or transfer the stock, unless Thurber should be brought before the court to litigate with Crump the true ownership of the stock. Crump replied to the answer of the corporation, and filed an amended petition, making Thurber a party to the suit, and praying the same relief as in his original petition. Wilson and Thurber were then each personally served with process in the city of New York. Thurber then came into the state court and filed a petition and a bond for the removal of the suit to the circuit court of the United States for the district of Kentucky, and the state court made an order removing the cause, under the objection and exception of the plaintiff. The petition proceeded on the ground that Crump was a citizen of Kentucky and Thurber a citizen of New York, and that there was a controversy in the suit between them, which was wholly between citizens of different states, and could be fully determined between them. Nothing was said in the petition for removal about Wilson or the corporation.

Thurber then filed an answer in the circuit court, setting forth that he had, on the twenty-sixth of October, 1880, purchased the 250 shares from Wilson for value, and received from him the certificates therefor, three in number, issued by the corporation to and in the name of Wilson, with blank forms of assignment and power of attorney on the back, which Wilson signed, and delivered to Thurber with the certificates; that he was entitled to fill the blanks and surrender the certificates, and have the shares transferred and new certificates issued to him by the corporation; and that he purchased the shares without any knowledge or information of any claim by Crump*against Wilson. The answer prayed that the shares be decreed to be the property of Thurber and not of Crump, and that the corporation be ordered to cancel the certificates issued to Wilson, and to issue to Thurber new certificates in their place. There was a replication to this answer. Thurber also filed a crossbill in the circuit court, making as a defendant only the corporation, but not Crump, setting forth himself as a citizen of New York, and the corporation as a citizen of Kentucky; and averring the facts as to his purchase of the

stock from Wilson for value, and as to the indorsement and delivery of the certificates by Wilson to him; and praying for judgment against the corporation, that it receive and cancel the certificates issued to Wilson, and issue to Thurber other certificates, in their stead, for the 250 shares. The corporation answered this cross-bill, saying that it was a mere stakeholder between the parties to the suit, and praying for a proper judgment, which should protect it. There was a replication to that answer. Then Crump filed in the circuit court an amended bill, setting forth that the transaction between Wilson and Thurber was for the fraudulent purpose of protecting the stock for Wilson, and that the certificates were held in secret trust by Thurber for Wilson. Thurber answered that amended bill, denying its allegations. To that answer there was a replication. Proofs were taken, and on a hearing a decree was made dismissing the bill of Crump, and adjudging that Thurber was the true owner of the 250 shares, and was entitled to have the certificates issued to Wilson therefor canceled, and other certificates issued in lieu thereof, on his application; and it was ordered that the corporation cancel the certificates, and issue or deliver to Thurber, or his order, such new certificates, and that Thurber and the corporation recover of Crump their costs. Wilson had never appeared or answered. Crump has appealed to this court.

It is assigned for error that the circuit court did not have jurisdiction of this cause under section 2 of the act of March 3, 1875, (18 St. 470,) and ought to have remanded it to the state court. This objection is well taken. It is true that there is, in the suit, a controversy between Crump and Thurber, but it is a controversy to which the corporation is an indispensable party. Crump brought the controversy into court as one between himself on one side, and Wilson and the corporation on the other side; and throughout Crump maintained that Thurber had no right to take the place of Wilson, because the transactions between Wilson and Thurber gave Thurber no greater right than Wilson had. The controversy which Crump asked to have adjudicated was one in which he should be declared to be the owner of the shares, and in which, to give him the fruition of such decree, and enable him to stand as the legal owner of the shares, and be recognized as such on the books of the corporation, there should be a decree ordering the corporation to cancel on its books the evidence of the ownership by Wilson, and to issue to Crump certificates for the shares. The jurisdiction of the circuit court must be determined, for the purposes of this case, by the status of the parties, and the nature of the relief which had been asked by the plaintiff, at the time of the application for removal. If the decree of the circuit court had been in favor of Crump, it would have enforced a right in favor of a citizen of Kentucky against a corporation in Kentucky. That corporation could not have removed the suit by showing that a citizen of New York was the other claimant of the stock. The event of the suit, a decree in favor of Thurber, on the merits, against Crump and the corporation, is not a proper test of the jurisdiction. If Thurber had brought the suit originally in the state court against Crump and the corporation, it could have been removed; or he might have brought it originally against them in the circuit court. But, in the present decree, Crump's bill is dismissed on the merits, and of course he is adjudged to have no rights against the corporation, and costs are decreed against him in favor of the corporation.

This case falls distinctly within a series of rulings made by this court. Blake v. McKim, 103 U. S. 336; Hyde v. Ruble, 104 U. S. 407; Winchester v. Loud, 108 U. S. 130; S. C. 2 SUP. CT. REP. 311; Shainwald v. Lewis, 108 U. S. 158; S. C. 2 SUP. CT. REP. 385; Ayres v. Wiswall, 112 U. S. 187; S. C., ante, 90; Hancock v. Holbrook, 112 U. S. 229; S. C., ante, 115; Thayer v. Life Ass'n, 112 U. S. 717; S. C., ante, 355; New Jersey Cent. R. Co. v. Mills, 113 U. S. 249; S. C., ante, 456; Sully v. Drennan, 113 U. S. 287; S. C., ante, 453; Louisville & N. R. Co. v. Ide, 114 U. S. 52; S. C., ante, 735; St. Louis &

S. F. Ry. Co. v. Wilson, 114 U. S. 60; S. C., ante, 738; Putnam v. Ingraham, 114 U. S. 57; S. C., ante, 746; Pirie v. Tvedt, 115 U. S. 41; S. C., ante, 1034.

The decree of the circuit court is reversed, and the case is remanded to that court, with a direction to remand it to the state court, for want of jurisdiction, with costs to Crump against Thurber in the circuit court.

(115 U. S. 67)

EHRHARDT v. HOGABOOM.
(May 4, 1885.)

1. PUBLIC LANDS-EJECTMENT-TITLE IN CALIFORNIA.

In an action of ejectment for lands in California, where the plaintiff traces title to the lands from a patent of the United States issued to a settler under the preemption laws, oral evidence is inadmissible on the part of the defendant to show that the lands were not open to settlement under those laws, but were swamp and overflowed lands, which passed to the state under the act of September 28, 1850. 2. SAME-DUTY OF LAND-Office.

It is the duty of the land department, of which the secretary of the interior is the head, to determine whether land patented to a settler is of the class subject to settlement under the pre-emption laws, and his judgment as to this fact is not open to contestation, in an action at law, by a mere intruder without title.

In Error to the Supreme Court of the State of California.

J. H. McKune, for plaintiff in error. No appearance for defendant in error. FIELD, J. This is an action for the possession of a tract of land in Sacramento county, California, designated as the north-east quarter of section 6* of a certain township, which is described. The plaintiff below, the defendant in error here, deraigns her title, through a patent of the United States embracing the demanded premises, bearing date June 10, 1875, issued to one Elkanah Baldwin, a settler under the pre-emption laws, and his conveyance to her of the land patented to him. On the trial the patent and the conveyance to the plaintiff were produced and given in evidence. The defendant thereupon admitted that he was in possession of 20 acres of the tract covered by the patent, lying south of a certain fence, but contended that these 20 acres were swamp and overflowed lands, which passed to the state of California under the act of congress of September 28, 1850. This character of the land as swamp and overflowed he offered to prove by parol, but the offer was rejected, and we think correctly. He did not connect himself in any way with the title to the 20 acres. The certificate of purchase from the register of the state land-office, which he produced, related to different land,-to what constituted a portion of the south-east quarter of section 6, whereas the land in controversy is part of the north-east quarter of that section. He was, as to the 20 acres, a simple intruder without claim or color of title. He was therefore in no position to call in question the validity of the patent of the United States for those acres, and require the plaintiff to vindicate the action of the officers of the land department in issuing it. It does not appear that the 20 acres formed a part of any land selected by the state, or claimed by her as swamp and overflowed land. A patent of the United States, regular on its face, cannot in an action at law be held inoperative as to any lands covered by it, upon parol testimony that they were swamp and overflowed, and therefore unfit for cultivation, and hence passed to the state under the grant of such land on her admission into the Union.

In French v. Fyan, 93 U. S. 169, this court decided that by the second section of the swamp-land act the power and the duty devolved upon the secretary of the interior, as the head of the department which administered the affairs of the public lands, of determining what lands were of the description@ granted by that act, and made his office the tribunal whose decision on that subject was to be controlling; and he was to transmit a list of such lands to the governor of the state, and, at the latter's request, issue a patent there

for to the state. In that case, parol evidence to show that the land covered by a patent to Missouri under the act was not swamp and overflowed land was held to be inadmissible. On the same principle, parol testimony to show that the land covered by a patent of the United States to a settler under the pre-emption laws was such swamp and overflowed land must be held to be inadmissible to defeat the patent. It is the duty of the land department, of which the secretary is the head, to determine whether land patented to a settler is of the class subject to settlement under the pre-emption laws; and his judgment as to this fact is not open to contestation in an action at law by a mere intruder without title. As was said in the case cited of the patent to the state, it may be said in this case of the patent to the pre-emptioner: it would be a departure from sound principle, and contrary to well-considered judgments of this court, to permit, in such action, the validity of the patent to be subjected to the test of the verdict of a jury on oral testimony. "It would be," to quote the language used, "substituting the jury, or the court sitting as a jury, for the tribunal which congress had provided to determine the question, and would be making a patent of the United States a cheap and unstable reliance as a title for lands which it purported to convey." The judg

ment is therefore affirmed.

(114 U. B. 619)

UNITED STATES . CORSON.
(May 4, 1885.)

1. ARMY OFFICER-DISMISSAL BY ORDER OF PRESIDENT-REVOCATION OF ORDER. An officer of the army, dismissed from the service during the recent civil war, by order of the president, could not be restored to his position merely by a subsequent revocation of that order.

2. SAME-VACANCY, HOW FILLED.

The vacancy so created could only be filled by a new appointment, by and with the advice and consent of the senate, unless it occurred in the recess of that body, in which case the president could have granted a commission, to expire at the end of its next succeeding session.

Appeal from the Court of Claims.

Sol. Gen. Phillips, for appellant. No brief filed for appellee.

HARLAN, J. This is an appeal from a judgment of the court of claims in favor of appellee for the sum of $538,-$328 of which represents his claim for pay as a captain and assistant quartermaster of volunteers from March 27, 1865, to June 9, 1865, and $210, his claim for pay allowed by the acts of March 3, 1865, c. 81, § 4, (13 St. 497,) and July 16, 1866, c. 181, (14 St. 94;) the first of which acts provides that all officers of volunteers in commission, at its date, below the rank of brigadier general, who should continue in the military service to the close of the war, should be entitled to receive, upon being mustered out of the service, three months' pay proper; and the last of which extended the provisions of the first act to all officers of volunteers below the rank of brigadier general, who were in the service on March 3, 1865, and whose resignations were presented and accepted, or who were mustered out at their own request, or otherwise honorably discharged from the service after the ninth of April, 1865.

The facts are: Appellee enlisted as a private soldier in the military service of the United States in August, 1861. Having been promoted, from time to time, he was commissioned, prior to March 27, 1865, as captain and assistant quartermaster of volunteers. His service was continuous from August, 1861, to March 27, 1865, on which day he was, by order of Pres. Lincoln, dismissed the service. But, on June 9, 1865, an order was issued by Pres. Johnson revoking the order of dismissal, and restoring him to his former position. By an order issued from the war department under date of June 19, 1865, he was assigned to duty as division quartermaster of the First division, First army

079.