could convey her real estate. It was the acknowledgment of the feme covert which was the operative act to pass the title, and not the delivery of the deed." And of the statute of 1869 it said: "This latter statutory enactment worked a marked change in the laws. Thereafter the acknowledgment ceased to be the effective means to work the transfer of title. The certificate of her acknowledgment might thenceforth have been the same as that required in the case of a feme sole; and without any acknowledgment whatever, proof of her execution of a conveyance might have been made as at common law. So, also, from that time forth, her contract in writing, made jointly with her husband, for the disposition of her lands, became binding upon her, and might have been enforced in a court of chancery, and she compelled to a specific performance of the same. One only distinction between her condition and that of an unmarried woman, in reference to the alienation or disposition of real property, was still retained. The law still required, before she could convey or make any valid contract for the disposition of her lands, her husband should join with her in the deed or other writing." See, also, Bradshaw v. Atkins, 110 Ill. 329; Edwards v. Schoeneman, 104 Ill. 278. It follows that, by the trust deed of 1872, in the nature of a mortgage, to the complainant, in which her husband united, her estate in the mortgaged premises passed as completely as if she had been a feme sole, subject to any homestead right therein which they possessed under the laws of Illinois. An act of the state, passed in 1851, provided for exemption from levy and forced sale, under judicial process or order, for debts contracted after its date, of the lot of ground and buildings thereon, occupied as a residence and owned by the debtor, being a householder and having a family, to the value of $1,000. And the amendatory act of 1857 provided that no release or waiver of such exemption should be valid unless the same should be in writing, subscribed by the holder and his wife, if he had one, “and acknowledged in the same manner as conveyances of real property are required to be acknowledged;" the act declaring that its object was "to require, in all cases, the signature and acknowledgment of the wife as conditions to the alienation of the homestead." An act passed in 1871 provided that in the enforcement of a lien upon premises including the homestead, if the homestead right was not waived or released in the manner required, the court might set off the homestead, and decree the sale of the balance of the premises; or, if the value thereof exceeded the exemption, and they could not be divided, might order the sale of the whole and the payment of the amount of the exemption to the party entitled. 1 Starr & C. Ann. St. Ill. c. 52. The payment by the holder of the lien, seeking its enforcement by sale of the premises, of the amount of the homestead exemption would, of course, obviate the necessity of the sale in the case mentioned, where the property was incapable of division, and authorize a decree for the delivery of the entire property to the party otherwise entitled to it. The master, to whom it was referred to ascertain whether the premises could be divided so as to set off to the widow a portion equivalent to the sum of $1,000, having reported that they could not be divided, the complainant was entitled to the possession of the whole premises upon paying the required amount into court for her benefit. The decree of the circuit court is, therefore affirmed. UNITED STATES v. SMITH. OFFICE AND OFFICERS-"PUBLIC OFFICERS"-REV. ST. U. S. § 3639. Rev. St. U. S. § 3639, provides for the safe-keeping of public money which may come into the hands of public officers, until transferred or paid out by them. Held, that a clerk in the office of the collector of customs for the collection district of the city of New York is not such a public officer charged with the safe-keeping of pub lic money, and is not indictable as a public officer for the unlawful conversion to his own use of such public money. On a Certificate of Division from the Circuit Court of the United States for the Southern District of New York. This case comes from the circuit court for the Southern district of New York, on a certificate of division of opinion between its judges. The defendant was a clerk in the office of the collector of customs for the collection district of the city of New York, and in 1886 was indicted for the unlawful conversion to his own use of public money, an offense designated in the Revised Statutes as embezzlement of such money. The indictment contains 75 counts, each charging the defendant with a separate act of embezzlement. The counts were all in the same form, and the objections to one are equally applicable to the whole of them. The first one is as follows: "The jurors of the United States of America, within and for the district and circuit aforesaid, on their oath present that Douglas Smith, late of the city and county of New York, in the district and circuit aforesaid, heretofore, to-wit, on the eleventh day of October, in the year of our Lord 1883, at the Southern district of New York, and within the jurisdiction of this court, he, the said Douglas Smith, being then and there a person charged by an act of congress with the safe-keeping of the public moneys, to-wit, a clerk in the office of the collector of customs for the collection district of the city of New York, appointed by the collector of customs, with the approbation of the secretary of the treasury, and having then and there in his custody a large sum of public money, to-wit, the sum of ten and 50-100 dollars, did unlawfully fail to keep the same, but the same did unlawfully convert to his own use, against the peace of the United States and their dignity, and contrary to the statute of the United States in such cases made and provided. The indictment is founded on section 5490 of the Revised Statutes, which is as follows: "Every officer or other person charged by any act of congress with the safe-keeping of the public moneys, who fails to safely keep the same, without loaning, using, converting to his own use, depositing in banks, or exchanging for other funds than as specially allowed by law, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged; and shall be imprisoned not less than six months, nor more than ten years, and fined in a sum equal to the amount of money so embezzled." The law providing for the safe-keeping of the public moneys is found in section 3639 of the Revised Statutes, which is as follows: "The treasurer of the United States, all assistant treasurers, and those performing the duties of assistant treasurer, all collectors of the customs, all surveyors of the customs, acting also as collectors, all receivers of public moneys at the several land-offices, all postmasters, and all public officers of whatsoever character, are required to keep safely without loaning, using, depositing in banks, or exchanging for other funds than as specially allowed by law, all the public money collected by them, or otherwise at any time placed in their possession and custody, till the same is ordered, by the proper department or officer of the government, to be transferred or paid out; and, when such orders for transfer or payment are received, faithfully and promptly to make the same as directed, and to do and perform all other duties as fiscal agents of the government which may be imposed by any law, or by any regulation of the treasury department made in conformity to law. The president is authorized, if in his opinion the interest of the United States requires the same, to regulate and increase the sums for which bonds are or may be required by law, of all district attorneys, collectors of customs, naval officers, and surveyors of customs, navy agents, receivers and registers of public lands, paymasters in the army, commissary general, and by all other officers employed in the disbursement of the public moneys, under the direction of the war or navy departments." The law providing for the employment of clerks by collectors of customs is found in section 2634 of the Revised Statutes, which is as follows: "The secretary of the treasury may, from time to time, except in cases otherwise pro vided, limit and fix the number and compensation of the clerks to be employed by any collector, naval officer, or surveyor, and may limit and fix the compensation of any deputy of any such collector, naval officer, or surveyor." To the indictment the defendant filed a demurrer, and upon its hearing the following questions occurred, upon which the judges were divided in opinion: "(1) Does the indictment sufficiently charge an offense under section 5490, Revised Statutes? (2) Is a clerk in the office of the collector of customs for the collection district of the city of New York, appointed by the collector of customs, with the approbation of the secretary of the treasury, by virtue of section 2634 of the Revised Statutes, a person charged by any act of congress with the safe-keeping of public moneys? (3) Was the defendant appointed by the head of a department, within the meaning of the constitutional provisions, (article 2, § 2,) upon the subject of the appointing power?" Thereupon, on the request of the district attorney, the questions were certified to this court, with a copy of the indictment and an abstract of the record, for final decision. Jenks, Sol. Gen., for plaintiff. Elihu Root, for defendant. Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court. The indictment in this case is in form sufficiently full and specific in its averments to embrace the offense prescribed by the statute, and yet the defendant charged is not within its provisions. He is designated as a clerk in the office of the collector of customs, and is thus shown not to be charged by an act of congress with the safe-keeping of the public moneys, contrary to the averments of the indictment. The courts of the United States are presumed to know the general statutes of congress, and any averment in an indictment inconsistent with a provision of a statute of that character must necessarily fail, the statute negativing the averment. No clerk of a collector of customs is, by section 3639 of the Revised Statutes, charged with the safe-keeping of the public moneys. That section requires the treasurer of the United States, assistant treasurers, and those performing the duties of assistant treasurer, collectors of customs, surveyors of customs, acting also as collectors, receivers of public moneys at the several land-offices, postmasters, and all public officers of whatsoever character, to keep safely all public money collected by them, or otherwise, at any time placed in their possession and custody, till the same is ordered by the proper department or officer of the government to be transferred or paid out. They are also required to perform all other duties as fiscal agents of the government which may be imposed by law, or by any regulation of the treasury department made in conformity to law. A clerk of the collector is not an officer of the United States within the provisions of this section; and it is only to persons of that rank that the term public officer, as there used, applies. An oflicer of the United States can only be appointed by the president, by and with the advice and consent of the senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the constitution. This subject was considered and determined in U. S. v. Germaine, 99 U. S. 508, and in the recent case of U. S. v. Mouat, 124 U. S., ante, 505. —, ante, 505. What we have here said is but a repetition of what was there authoritatively declared. The number of clerks the collector may employ may be limited by the secretary of the treasury, but their appointment is not made by the secretary, nor is his approval thereof required. The duties they perform are as varied as the infinite details of the business of the collector's office, each taking upon himself such as are assigned to him by the collector. The officers specifically designated in section 3639 are all charged by some act of congress with duties connected with the collection, disbursement or keeping of the public moneys, or to perform other duties as fiscal agents of the government. A clerk of a collector, holding his position at the will of the latter, discharging only such duties as may be assigned to him by that officer, comes neither within the letter nor the purview of the statute. And we are referred to no other act of congress bearing on the subject, making a clerk of the collector a fiscal agent of the government or bringing him within the class of persons charged with the safe-keeping of any public moneys. The case of U. S. v. Hartwell, 6 Wall. 385, does not militate against this view. The defendant there, it is true, was a clerk in the office of the assistant treasurer at Boston, but his appointment by that officer under the act of congress could only be made with the approbation of the secretary of the treasury. This fact, in the opinion of the court, rendered his appointment one by the head of the department within the constitutional provision upon the subject of the appointing power. The necessity of the secretary's approbation to the appointment distinguishes that case essentially from the one at the bar. The secretary, as already said, is not invested with the selection of the clerks of the collector; nor is their selection in any way dependent upon his approbation. It is true the indictment alleges that the appointment of the defendant as clerk was made with such approbation, but, as no law required this approbation, the averment cannot exert any influence on the mind of the court in the disposition of the questions presented. The fact averred, if it existed, could not add to the character, or powers, or dignity of the clerk. The constitution, after providing that the president shall nominate, and, by and with the advice and consent of the senate, shall appoint, ambassadors, other public ministers, and consuls, judges of the supreme court, and all other officers of the United States whose appointments are not otherwise provided for, which should be established by law, declares that "the congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments." There must be, therefore, a law authorizing the head of a department to appoint clerks of the collector before his approbation of their appointment can be required. No such law is in existence. Our conclusion, therefore, is that section 3639 of the Revised Statutes does not apply to clerks of the collector, and that such clerks are not appointed by the head of any department within the meaning of the constitutional provision. It follows that our answers to the second and third questions certified to us must be in the negative. An answer to the first question is therefore immaterial. IRON SILVER MIN. Co. v. REYNOLDS et al.1 1. MINES AND MINING-POSSESSORY ACTIONS-PLACER CLAIMS. In an action to recover mining lands, called a "placer claim, " defendants claimed that they had entered in working a lode or vein excluded from the plaintiff's patent for the placer claim which plaintiff had introduced in evidence. Plaintiff then offered another patent and deed from the patentee to the part excepted from the patent. Held, error to exclude the patent and deed, as plaintiff could show title from any source. 2. SAME. In an action to recover placer mining lands, an instruction was in substance that, if plaintiff's application for a patent was made with intent to acquire title to a lode or vein which might exist beneath the surface, a patent so issued would not convey such lode or vein, and the intention could only be formed from investigation of the character of the ground, and belief of the existence of such lode would constitute legal knowledge. Held, that the instruction was not authorized by the statute (Rev. St. U. S. § 2333) providing that where a vein or lode is known to exist within à placer claim, an application for, and grant of, the placer claim alone, will not pass title to the vein or lode. 1For former report, see 6 Sup. Ct. Rep. 601. In Error to the Circuit Court of the United States for the District of Colorado. This is an action for the possession of certain mining ground situated in what is known as the "California Mining District," in Lake county, Colorado. The plaintiff is a corporation created under the laws of New York. The defendant Reynolds is a citizen of the state of Illinois, and the defendant Morrisey is a citizen of Colorado. The complaint alleges that on the first of January, 1884, the plaintiff was the owner and possessed of a tract of mining land in the mining district and county of Colorado mentioned, consisting of 193.43 acres, more or less, the metes and bounds of which are given as described in the patent of the United States issued therefor; that, while thus the owner and possessed of the same, and on the first of May, 1884, the defendants entered upon a portion of the said mining land, which is designated as "the north-west portion of the said described premises at and near the north and east line" thereof, and wrongfully and unlawfully ousted the plaintiff therefrom, and from that time have wrongfully and unlawfully withheld the possession thereof; that the value of this portion of the mining land, from which the plaintiff has been ousted, is over $50,000; and that its rents and profits while the defendants have held possession, with the damage caused by them, are $10,000. The plaintiff therefore demands judgment for the possession of the premises, and for the sum of $10,000 damages. The claim described in the complaint is designated in the patent of the United States as the "Wells and Moyer Placer Claim," and is thus described in the subsequent pleadings and proceedings of the case. The defendants' answer sets up three defenses: (1) The first consists of a specific denial of the several allegations of the complaint. (2) The second is this: that at the times charged in the complaint the defendant Reynolds was, and still is, the owner and in the actual possession of two lode mining claims, called, respectively, the "Crown Point Lode" and the "Pinnacle Lode," adjoining on the north the Wells and Moyer placer claim, the veins of which lodes, in their course downward, dip into and underneath the exterior lines of the placer claim; and that in working and following such veins the defendant Reynolds, as owner, and the defendant Morrisey, under the license of Reynolds, entered underneath the exterior surface lines of the placer claim, following the veins as parcel of the premises embraced in the survey of their lode claims, and have not otherwise entered upon the premises described or claimed by the plaintiff, or ousted the plaintiff therefrom. (3) The third defense is this: that, at the time of the survey, entry, and patent of the said Wells and Moyer placer claim, a certain lode, vein, or deposit of quartz, or other rock in place, carrying carbonates of lead and silver bearing ore of great value, called the "Pinnacle Lode," and a certain other lode, vein, or deposit, carrying like minerals of great value, called the "Crown Point Lode," were known and claimed to exist within the boundaries, and underneath the surface, of the placer claim described in the complaint; and the fact that such vein or veins were claimed to exist, and did exist, within said premises, was known to the patentees of the placer claim at the times mentioned; and that in their application for a patent they were not included, but, by the patent issued upon such application, were expressly excluded therefrom. To the answer the plaintiff replied traversing the defenses set up, and, for a further replication, alleged that at all times charged in the answer of the defendants it has been, and still is, the owner, and in actual possession, of the Rock lode mining claim and the Dome lode mining claim, which adjoin, immediately on the north side, the said Pinnacle and Crown Point mining claims; and that within their exterior boundaries there is a vein, lode, lead, and valuable mineral deposit of quartz, and other rock in place, bearing silver and lead, which, on its dip and downward course, enters into and underlies the land adjoining, a portion of which consists of ground covered by the |