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Statement of the Case.

Mexico. This survey, after approval by such surveyor gen-
eral, was forwarded to the Land Department at Washington,
and on July 1, 1875, a patent was issued granting the land
with boundaries as established by this survey. The following
is a plat of the property as surveyed and patented:

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CANON

In 1866, Ramirez conveyed the property to Cooley and others, from whom, in 1880, it passed to the present defendant. Thereafter, and on September 15, 1881, this suit was commenced by the United States in the District Court of the First Judicial District of the Territory of New Mexico, to set

Argument for Appellant.

aside the patent and annul the title conveyed thereby on the ground of fraud in the survey. An answer was filed, proofs were taken, and the case went to final hearing before the District Court. By that court, on February 16, 1885, a decree was entered in favor of the defendant, dismissing the bill. From such decree an appeal was taken to the Supreme Court of the Territory, which, on January 28, 1888, reversed the decision of the District Court, and entered a decree in favor of the government, setting aside and annulling the patent and the survey upon which it was based; from which decree the defendant appealed to this court.

Mr. George Hoadly for appellant.

I. The United States has no interest in this controversy, and did not in good faith institute and prosecute this suit.

This proposition is founded on the following letter from Attorney General Brewster, which is on file in the First Judicial District Court of the Territory of New Mexico, and appears in the record of the cause, not as part of the testimony, but as having been filed therein.

"DEPARTMENT OF JUSTICE,

"F. W. CLANCY, Esq.,

"1426 Corcoran St.,

"WASHINGTON, October 17, 1883.

"Washington, D. C. :

"Sir. To your inquiry whether the United States will pay the costs incurred in the case against the San Pedro and Cañon del Agua Company, I answer that the United States has no beneficial interest in the proceeding. It was instituted at the instance of parties who claimed a right to the possession of the lands. Upon their request special counsel were appointed by this Department to commence and carry on the suit, but they were not to be compensated by the United States, and it was the understanding of this Department, in other similar cases, that whatever costs and expenses were

as

Argument for Appellant.

incurred in the preparation and conduct of the case should be paid by the parties on whose petition the proceedings were instituted. I must decline, therefore, for the government, to pay said costs and expenses or any part thereof.

"Very respectfully,

"BENJAMIN HARRIS BREWSTER,

"Attorney General."

II. The prosecution of this suit is barred by laches.

It is quite true that the action was brought within seven years after the issue of the patent, and it may be urged that the statute of limitations does not run against the United States, and that the government cannot be guilty of laches. United States v. Dalles Military Road Co., 140 U. S. 599.

These considerations might have much force if the suit were brought by the government for its own benefit. They have no application to a case of this character. United States v. Des Moines Navigation Co., 142 U. S. 510, is directly in point.

The parties for whose benefit this suit was brought might have been beaten by the defence of lapse of time, had they sued on their claims in their own names. Bryan v. Forsyth, 19 How. 334; Meehan v. Forsyth, 24 How. 175.

This question of laches was properly raised by the demurrer overruled by Chief Justice Axtell. Wollensak v. Reiher, 115 U. S. 96; Graham v. Boston, Hartford & Erie Railroad Co., 118 U. S. 161; Bryan v. Kales, 134 U. S. 126. This is therefore sufficient ground for reversing upon appeal.

It is true that Chief Justice Axtell held with the defendants on the merits, after overruling the demurrer; but upon appeal the fact that the suit was brought too late was a sufficient defence, even though the court might have differed with Chief Justice Axtell on the merits. The following authorities sustain the application of the doctrine of laches to this case. Badger v. Badger, 2 Wall 87; Sullivan v. Portland etc. Railroad, 94 U. S. 806; Brown v. Buena Vista County, 95 U. S. 157; Godden v. Kimmel, 99 U. S. 201; Coddington v. Railroad Company, 103 U. S. 409; Young v. Clarendon Township, 132

Argument for Appellant.

U. S. 340; Société Foncière v. Milliken, 135 U. S. 304; Norris v. Haggin, 136 U. S. 386; Mackall v. Casilear, 137 U. S. 556; Hanner v. Moulton, 138 U. S. 486; Cressey v. Meyer, 138 U. S. 525; Underwood v. Dugan, 139 U. S. 380; Boone County v. Burlington & Missouri River Railroad, 139 U. S. 684; McLean v. Clapp, 141 U. S. 429; Galliher v. Cadwell, 145 U. S. 368.

III. Much of the testimony of John B. Treadwell and the exhibits attached thereto were incompetent and should have been excluded, and for this reason alone, if there were no other, the decree of the Supreme Court of the territory ought to be reversed and this Court should proceed to final decree upon the merits, or should remand to the Supreme Court of the territory for further proceedings.

Of the importance of this proposition to this case this court can entertain no doubt.

After the taking of testimony upon both sides had been closed and the depositions published, and a day fixed for hearing by order of the court, N. C. McFarland, then commissioner of the General Land Office, on the 14th day of December, 1883, addressed a letter to John B. Treadwell, examiner of surveys, Deming, New Mexico, instructing him as follows, viz.: "To examine the said survey with a view to ascertaining whether the Griffin survey was made in accordance with the call of the grant in order that you may be enabled to testify in court as to the correctness or incorrectness of said survey.

"In case you should find the survey to be incorrectly made, you will ascertain the true location of the calls by such examination as may be found necessary, furnishing notes and diagrams as evidence in the premises.

"It is desired that your examination be made with as little publicity as possible, referring to this office direct for any further information which may be needed.

"It may be necessary for you, in establishing the boundaries. of the grant, to take the testimony of witnesses who are familiar with the country and competent to testify in this particular, and should you need the services of an interpreter

Argument for Appellant.

you are authorized to employ one and such other assistants as may be required.

"When your examination shall have been completed, which must be at the earliest practicable date, you will advise this office by telegraph and await further orders."

In obedience to this order, Treadwell went on the ground, made a survey, and took the testimony of thirteen witnesses by affidavits ex parte. The opinion of Chief Justice Long in this case shows that of the witnesses whose affidavits were thus procured by Treadwell, six had been examined and crossexamined and their testimony filed and published in the case. In the application for leave to take this testimony no reference was made to these ex parte affidavits.

After the cause was brought to issue the defendant's solicitors filed their motion, to suppress all the testimony of Treadwell and the exhibits filed therewith, "for the reason that the same is in no way pertinent to the issue in this case; that it is based upon hearsay; that said exhibits contain affidavits of witnesses who have not been produced for crossexamination in this case, and contain certain sketches or pictures, the authorship of which is not stated, and the truth or correctness of which is in no manner substantiated or verified or even stated or referred to, and for other good reasons apparent on the face of the said testimony." This was overruled on the same day.

The defendants then further moved to exclude specified portions of the deposition, viz.: (1) such as was hearsay; (2) such as was taken ex parte; (3) because it contained pictures without its appearing by whom they were made, or whether they were faithful representations of anything. This was in like manner overruled.

I respectfully submit that this motion is itself an exception to the testimony. No form is necessary for an exception. All that is needed is that there shall be a distinct objection made to the reading of the testimony and its use by the court, brought to the court's knowledge, and this is shown in this Estee's Pleadings, 3d. ed. by Pomeroy, 332.

case.

When the cause came on to be heard in the Supreme Court,

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