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shall be Sec. 60. A person in a state court, a lawful remedy on a lawdeemed to have come shall be deemed to ful security given and received before the mitted an act of bank- have given a prefer. act of bankruptcy was passed, and without roptcy.

Sec. 36. That if any vent, hé' bas procured any knowledge or consent by the debtor to person, belng Insolvent or suffered a judgment such suit or proceeding, is not an act of or in contemplation of to be entered against bankruptcy, it is now contended that a difInsolvency, within four himself in favor of ferent conclusion must be reached under the months before the fl- any person, or made a provisions of the act of 1898. Ing of the petition by transfer of any of his Examination and comparison of the above or against him, with property, and the ef-contrasted provisions will show, as I think, 1 view to give a pref- fect of the enforce that no change was made by the latter enerence to any creditor ment of such judgment actment in the vital and decisive purpose or person having a or transfer will be to that no person shall be visited with the pen. claim against bim, or enable any one of his alty of involuntary bankruptcy, unless he bility for him, pro greater percentage of has brought himself within the denunciation ares any part of his his debt than any of the law by some intentional and volunproperty to be at- other of such creditors tary act, and that, this being so, the decitached, sequestered, or of the same class. sions under the previous act, that merely seized on execution, or Sec. 67. . . . A llen failing to file a voluntary petition is not makes any payment, created by, or obtained such voluntary and intentional act in fraud pledge, assignment, in, or pursuant to, any of the statute, are applicable and decisive transfer, convey suit or proceeding at of the present case. ance of any part of law or in equity, inhis property, elther di- cluding an*attachment between “permit” and “suffer” and “pro

Arguments based on supposed differences rectly or indirectly, upon mese process, or absolutely condi a judgment by contes cure" are too uncertain on which to find that tionally, the person sion, which was begun a great and important chango in the theory recelving such pay- against a person with of the bankrupt law was intended by Conment, pledge, assign- in four months before gress. Such an intention would have been ment, transfer or con. the filing of a petition directly and clearly expressed, and not left veyance, or to be bene in bankruptcy by or to uncertain inferences. That such inferAted thereby, or by against such person, ences are uncertain plainly appears by the such attachment (pay. shall be dissolved by opposite conclusions reached, in respect to ment, pledge, assign. the adjudication of ment or conveyance], such person to be at the learned judges of the district and circuit

the meaning of the clauses in question, by baving cause to belleve such appears that said' lien courts. See Re Moyer, 93 Fed. 188; Re person 18 insolvent, was obtained and per- Thomas, 103 Fed. 272; Re Nelson, 98 Fed. and that such attach- mitted while the de 77; Duncan v. Landis, 45 C. C. A. 666, 106. ment, payment, pledge, fendant was insolvent, Fed. 839. assignment, or con- and that its existence The case of Pirie v. Chicago Title & T. veyance is made in and enforcement will co. 182 U. S. 438, 45 L. ed. 1171, 21 Sup. trand of the provisions work a preference, or ct. Rep. 906, the most recent decision of of this act, the same (2) the party or par: this court under the act of 1898, arose unshall be vold.

ties to be benefited Sec. 29. . . . No dle thereby had

der another clause of the act, and is not dicharge shall be grant- able cause to believe rectly applicable to the question we have ed ..

If the bank. the defendant was in-here considered, but, so far as it has any mpt ... within four solvent, and in con- hearing, sustains the views herein expressed. months before the com- templation of bank. The question there was under $ 60, and it mencement of such ruptcy, or (3) that was held that where a payment or transfer proceedings, . . . has such lien was sought was made by an insolvent debtor, within four prooured his lands, and permitted in fraud months prior to the filing of a petition in foods, money or chat of the provisions of bankruptcy, to a creditor who did not have tels to be attached, se this act... questered or selsed on That all levles, Judg

cause to believe that an unlawful preferxecution. menta, attachments, or

ence was intended, the creditor may keep other llens obtained the payment or transfer, even though the through legal proceed amount of such payment or transfer was ings against a person thereby withdrawn from the administration who is insolvent, at of the bankrupt court and satisfaction in any time within four full was received by the creditor, but that months prior to the if such payment was only a partial discharge Aling of a petition in of his debt the creditor

cannot prove, under bankruptcy against him, shall be deemed

the distribution in bankruptcy, for the bal. null and vold in case ance of his debt, unless he first surrenders he is adjudged a bank to the trustee the amount of the partial pay. rupt.

ment. It having been repeatedly ruled in the The conclusion warranted by the words cases cited that, under these provisions of of the statute, interpreted in this light of the act of 1867, no person shall be deemed our previous decisions, is that the questions guilty of an act of bankruptcy except by rea-certified to us by the circuit court of apson of some affirmative and intentional act peals should be answered in the negative. Intended to defeat the purposes of the act, The Chief Justice, Mr. Justice Brewer end that failing to file a voluntary petition and Mr. Justice Peckham concur in this Da bankruptcy where a creditor is pursuing, dissent.


ary 6, 1902.

(183 U. S. 563) MCKINLEY CREEK MINING COMPANY | ship, but denied the citizenship of plaintiffs et al., Appts.,

on the ground that the defendants had not

sufficient knowledge to form a belief thereto, ALASKA UNITED MINING COMPANY and traversed in like manner or absolutely et al.

the other allegations of the bill, and alleged

title by reason of prior discovery by memAppeal in equity-error in instructions—bers of the company. The answer also al. finding of fact-notice of mining claim-leged prior possession by members of the loculion by alien.

company, from which they were dispossessed

by the plaintiff, and claimed that as to the 1. Assignments of error based upon the re-controversies thus arising "defendants are

fusal of instructions in a suit in equity in under the law and practice of this court which the verdict is only advisory to the court entitled to a jury trial for the trial of the cannot be entertained on appeal.

title to said claims and each of them, and 2. A finding by the court on a question of fact to that end and purpose have commenced

upon which the evidence is conflicting cannot in this honorable court a suit in ejectment

be rejected on appeal. 8. A suficient location of placer mining claims for the trial and determination of the title

is made by notices upon a stump in a creek, of to said property in an action at law and aca claim running 1,500 feet along the creek cording to the usage and practice of this bottom and extending 300 feet each way from court, and until the trial and determination the center of the creek, adding that it is an of such trial at law by this honorable court extension of another claim named, a certain the defendants are entitled to a restraining distance from the first falls on said creek.

order against said plaintiff company and its 4. The location of a mining claim by an alien, individual members restraining them and

and the rights following therefrom, are vold. cach of them from the commission of the able, not void, and are free from attack by wrongful acts herein complained of.” anyone except the government.

A temporary injunction was prayed

against plaintiffs (appellees). [No. 37.]

There was a reply filed to the new mat

ter of the answer and to the cross complaint. Argued April 15, 16, 1901. Decided Janu

A jury was impaneled to try the case on motion of plaintiffs, no objection being made

by defendants, and, after hearing the evi. verdict for the plaintiffs in an equity court, the jury rendered a verdict for plaincase to establish title to placer mining tiffs,' as follows: "We, the jury in the claims. Affirmed.

above-entitled and numbered cause, find for

the plaintiffs, Peter Hall, Wm. A. ChisStatement by Mr. Justice McKenna: holm, Dan. Sutherland, James Hansen, and

This is a bill in equity brought by the John Dalton, partners under the firm name appellee company, who was plaintiff below, and style of the Alaska United Mining to establish title to two placer mining Company, the claims in controversy." claims, against a like claim of appellant The defendants in due time moved fors company to the same ground.

judgment notwithstanding the verdict, upona The bill alleged that “Peter Hall, William the ground that on the evidence the defend. A. Chisholnı, James Hansen, John Dalton, ants were entitled “to a judgment in their and Dan. Sutherland, partners under the firm favor for the possession of the mines and name and style of the Alaska United Min-property in controversy.” The motion was ing Company, bring this their bill of com- denied. plaint against C. G. Lewis, Bert Woodin, Subsequently defendants moved for a new Edwin Hackley, Alex. McConaghy, Carl A. trial (1) upon the testimony in the cause, West, W. S. Hawes, Chas. P. Leitch, and C. the rulings therein and exceptions taken, P. Cahoon, partners under the firm name and upon the pleadings and proceedings in of the McKinley Creek Mining Company, cause No. 967; (2) the insufficiency of the and show to the court that the said par- evidence to justify the verdict; (3) error in ties, both plaintiffs and defendants, are citi: refusing to give certain instructions re zens of the United States and residents of quested by defendants (appellants). the district of Alaska."

The motion was denied, and the following The bill also alleged ownership of the judgment was entered: claims by reason of location, exploration, “This cause came on to be heard at this and discovery of precious metals, and the term upon the bill, the answer and cross bill conipliance with the local rules and regula- of defendants, and the replication thereto tions of the mining district. Also possession of plaintiffs, and the proofs in the case, and of the claims and the erection of valu- upon the request of defendants, duly made able improvements thereon, and forcible en- by their counsel, Messrs. Winn & Weldon, try upon that possession by defendants (ap- the issues arising upon said pleadings and pellants) with an attempt and avowed pur-proofs were submitted to a jury of good and pose to drive plaintiffs (appellees) there iawful men, duly selected, impaneled, and from, and unless restrained they would pro sworn, to wit, J. Montgomery Davis and ceed to the execution of said threats. An eleven others, who, having heard the said injunction was prayed for.

proofs adduced in the case, and having been The defendants admitted their citizen- 'instructed by the court as to the law, and

* 564

having heard the argument of counsel, re ! Messrs. L. T. Michener, W. W. Dudley, tired in charge of the bailiff to consider of J. F. Jalony, and J. H. Cobb for appellees. their verdict, and after due deliberation had returned into open court the following ver

Mr Justice McKenna delivered the opindict, to wit:

ion of the court: “We, the jury in the above entitled and

The assignments of error present for re numbered cause, find for the plaintiffs, Peter

view the rulings of the court upon the ad. Hall, William A. Chisholm, Dan. Suther

mission of testimony, the correctness of the

court's instructions to the jury, and the suf. land, Jas. Hansen, and John Dalton, part

ficiency of the evidence to justify the judge ners under the firm name and style of the

ment. Alaska United Mining Company, the claims

We may dispose of the rulings on the ad. in controversy.

mission of testimony summarily. They are “(Signed) J. Montgomery Davis,

not precisely indicated by counsel in their

Foreman. “Which said verdict was by the court re

brief, and to review them with a detail of

the evidence would unduly extend this ceived and ordered recorded, and the find.

opinion. It is enough to say that we have ings therein contained upon the issues in

examined the evidence and considered the said cause were by the court approved and

rulings, and do not discover any prejudicial adopted.

error in the latter. Besides, it is question. “Now, therefore, upon consideration of

able if such rulings are reviewable in an the said bill, the answer thereto and the cross complaint of said defendants, the re

appellate court. Wilson v. Riddle, 123 U.

S. 608, 31 L. ed. 280, 8 Sup. Ct. Rep. 255; plication of plaintiffs, and the said proofs,

Ause v. Washburn, 59 Wis. 414, 18°N. W. and by reason of the verdict of the jury

341; Peabody v. Kendall, 145 ill. 519, 32 thereon, approved and adopted by the court,

N. E. 674. it is, upon consideration thereof, ordered,

For an understanding and consideration adjudged, and decreed as follows, to wit: That the said defendants, C. G. Lewis,

of the other contentions of appellants it is

only necessary to indicate the propositions Bert Woodin, Edwin Hackley, Alex. McCon

which the evidence of the parties tended to aghy, Carl A. West, W. S. Hawes, Charles

establish. On the part of the plaintiffs (apP. Leitch, and C. P. Cahoon, a mining co

pellees) the evidence tended to show that partnership under the name and style of the

Dan. Sutherland, James Hanson, William McKinley Creek Mining Company, have not,

Chisholm, and Jack Dalton, who compose nor have any of them, any right, estate,

the appellee company, and Peter Hall, and title, or interest whatever in or to those

one Hawes, and C. P. Cahoon, were working two certain mining claims, lands, and prem

at Pleasant camp in Alaska for William ises described in the said bill of complaint

Chisholm on and prior to October, 1898. and in the said answer and cross complaint

Prospecting on the river Porcupine was re of defendant and hereinafter more particu

solved on to be done by Hanson, Sutherland, larly described; that the title of the plain

and Cahoon, and the following power of attiff, The Alaska United Mining Company,

torney was given to Cahoon: a corporation composed of Peter Hall, Wil. liam A. Chisholm, Dan. Sutherland, Jas. Hansen, and John Dalton, thereto, is good

Know all men by these presents that Pe and valid, and that the said defendants and

iter Hall, William Chisholm, William S. each of them be, and they and each of them

Hawes, of Pleasant camp, British Columbia, are hereby, forever enjoined and restrained

have made, constituted, and appointed, and from asserting any claim whatsoever in or

by these presents do make, constitute, and

appoint, C. P. Cahoon, of Pleasant camp, to said mining claims, lands, and premises

British Columbia, our true and lawful atadverse to said plaintiffs, and that the said

torney, for us and in our names, place, and plaintiffs be, and they are hereby, quieted in

stead, to locate a mining claim in the terri. their possession, use, and enjoyment of the

tory of Alaska. same."

In testimony whereof we have hereunto A description of the claims followed.

set our hands and seal this 4th day of Oct, Objection was made to the judgment, and A. D. 1898. · the defendants claimed that the only judg

Peter Hall.

(SEAL.] ment which could be entered was one "re

Wm. A. Chisholm. (SEAL.] straining the defendants from the acts com

Wm. S. Hawes. (SEAL.] plained of in the bill of complaint pending Signed, sealed, and delivered in the pres tho trial of cause No. 967, McKinley Creek ence of Min. Co. v. Alaska United Min. Co., which

Dan. Sutherland. is . suit in ejectment now pending in this

J. Hanson. court and at issue, the record and files of which are hereby referred to and made a Provisions were furnished the party, and part of this objection."

they started out on the 4th of October, 1898, From the judgment entered the case is and met on the creek (subsequently giver here on appeal.

the name of McKinley) certain members of

the appellant company. Gold was discov. Messrs. S. M. Stockslagor and George ered, and Cahoon wrote notices of location 0. Heard for appellants.

for Chisholm and Hall upon a snag or stump

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in the creek, making their claims contig: appellant urge that by $ 7 of the act of nous, and afterward reported that he had May 17, 1884, supra, the final judgments done so, saying that he had staked Chisholm of a district court of Alaska are reviewable first and Hall next. Chisholm and Hall by this court "as in other cases,” and that went to the claims about the 20th of Octo- the terms, “other cases," "necessarily refer ber, and cut trails to them, and did other to the procedure for review provided by $8. work upon them; and at that time copied 691 and 692, Revised Statutes, governing the notices of location and had them re- district and circuit courts having like juriscorded. The notices, with their indorse-diction.” But the procedure there prements, were introduced in evidence.

scribed is for the purpose of reviewing erThe testimony was given by several wit- ror, and error, as we have already said, cannesses and in great detail, and it was op: not be based on instructions given or reposed at about all points by testimony of fused in an equity case. Nor is the rule several witnesses, including Cahoon; and as different in the state of Oregon. De Lashto who first discovered gold there was a de- mutt v. Everson, 7 Or. 212; Šwegle v. Wells, oided conflict whether Šutherland did, who 7 Or. 222. is one of the appellee company, or whether 2. There was no finding of facts by the Hackley did, under a location by whom the court, and, assuming that we may look into appellant company claims. Also a conflict the evidence, we find it conflicting as to as to whether Hackley protested when Ca- who first discovered gold,-Hackley or Suthhoon wrote the notices of location for Chis- erland. The court below evidently deterholm and Hall, and whether Cahoon prom- mined that Sutherland did, and, having no ised to take them down and authorized test of the credibility of the witnesses, we Hackley to do so, and, upon his declining, cannot pronounce that determination unauthorized Lewis, one of the appellant com- sound. Sutherland seems to have been actpany, to take them down and relocate Chis, ing with and co-operating with Cahoon. Ate holm and Hall further up the creek, and any rate, Sutherland is not contesting the whether Lewis did so.

locations made by Cahoon*for Chisholm and 1. It will be observed that the main con. Hall, but, on the contrary, asserts their troversy of fact between the parties was as validity and claims title under them. The to who made the first discovery of gold, locations, therefore, are valid so far as they Hackley or Sutherland. On this testimony depend upon the discovery of gold, appellants base three contentions, to which, The second contention is that they are inthey claim, the instructions asked by them valid because they were not "distinctly at the trial court were addressed:

marked on the ground.". The appellants (1) That the discovery of mineral is a base this contention on Cahoon's testimony, precedent condition to the making of a valid His testimony is that he wrote the notices location, and that Hackley was the first to of locations upon a stump or snag in the discover gold.

creek, and they were as follows: "I, the (2) That the locations relied on by ap- undersigned, claim 1,500 feet running down pellees were invalid because they were not this creek and 300 feet on each side." 'distinctly marked on the ground, or other But the notices produced by other witwise designated as required by law." nesses, and which were testified to be cop

(3) That the citizenship of Chisholm ies, as near as could be made out, of those: and Hall was put at issue by the pleadings, on the stump, were respectively as follows: and no evidence was offered to establish it, but, on the contrary, the power of attorney Notice is hereby given that I, the underunder which Cahoon acted represents them signed, have, this 6th day of October, 1898, to be citizens of British Columbia.

located a placer mining claim 1,500 feet runWithout now questioning the soundness ning with the creek and 300 feet on each of either of these contentions, it is enough side from center of creek known as McKinto say that the assignments of error basedley creek, in Porcupine mining district, runupon the refusal of instructions cannot be ning into Porcupine river. This claim is entertained. This is undoubtedly a suit in the east extension of W. A. Chisholm claim equity, and if it may be regarded as enter- on about 1,800 feet from the first falls abovetained under the general powers conferred the Porcupine river, in the district of Alas. by the act of May 17, 1884 (23 Stat. at L. ka.

Peter Hall, Locator. 24, chap. 53), error cannot be predicated up Witnesses: J. Hanson. on the giving or the refusing of instructions.

D. Sutherland. The verdict was but advisory to the court, to be adopted or disregarded at the court's Notice is hereby given that I, the under discretion. This we regarded as indisput- signed, have, this 6th day of Oct., 1898, loable, but in order that counsel might be cated a placer mining claim 1,500 feet along heard upon the effect of the Oregon Code, if creek bottom and 300 feet from center of regarded as applicable to Alaska, we re-creek each way on creek known as McKinquested briefs of counsel “as to what er ley, in Porcupine mining district, described rors, in respect of giving or refusing in. as follows: West extension of Peter Hall's structions or other rulings on trial by a claim and about 300 feet above first falls on jury in a cause of this character, are open said creek, in the district of Alaska. for consideration on appeal from the dis

Wm. A. Chisholm, Locator. trict court of Alaska."

Witnesses: D. Sutherland. In response to that request, counsel for

James Hanson.


These notices constituted a sufficient loca- | Mantle, 127 U. S. 348, 32 L. ed. 168, 8 Sup. tion; the creek was identified, and between Ct. Rep. 1132. it and the stump there was a definite rela The appellants, however, deny the applition which, combined with the measure-cation of Manuel v. Wulff, and contend that ments, enabled the boundaries of the claim this suit having been brought under $ 500 to be readily traced. Haws v. Victoria Cop- of the Oregon Code, in order to maintain the per Min. Co. 160 U. S. 303, 40 L. ed. 436, suit, the appellees must show a right to the 16 Sup. Ct. Rep. 282.

exclusive possession of the ground in dis*3. Conceding, appellants say, a proper dis- pute. This is in effect to say that, while covery and a proper description of the loca- the validity of the location may not be distion, nevertheless, as the citizenship of the puted by appellants, that the right to the locators was put in issue, it was necessary possession, which is but an incident of the to be proved to justify a judgment for the location, may be. We do not concur in this appellees, because, under $ 2319, Rev. Stat., view. The meaning of Manuel v. Wulff is the public lands of the United States are that the location by an alien and all of the only open to exploration, occupation, and rights following from such location are voidpurchase by citizens of the United States able, not void, and are free from attack by and those who have declared their intention anyone except the government. to become such,

It is not necessary to notice other points In Manuel v. Wulff, 152 U. S. 505, 38 L. made by appellants; and, discovering no ered. 532, 14 Sup. Ct. Rep. 651, this court sus- ror in the record, judgment is affirmed. tained the validity of a conveyance of a mining location to an alien, reversing a deci. sion of the supreme court of Montana to

(183 U. S. 591) the contrary. The decision was based upon UNITED STATES REPAIR & GUARAN. the difference between a title by purchase

TY COMPANY, Petitioner, and title by descent, and the doctrine expressed that an alien can take title by pur. ASSYRIAN ASPHALT COMPANY. chase, and can only be devested of it by office found. The case of Doe es dem. Gov. Patent-for method of repairing asphalt eneur v. Robertson, 11 Wheat. 332, 6 L. ed.

pavement-lack of novelty. 488, was cited and approved, and the re marks of Mr. Justice Johnson in that case The Perkins patent, 501,637, for a method of become apposite:

repairing asphalt pavements, consisting of so "That an alien can take by deed, and can heating the spot to be repaired and the ad. hold until office found, must now be regard

jacent surface that the asphalt is reduced to ed as a positive rule of law, so well estab

the soft, pliable state in which It was origl. lished that the reason of the rule is little

nally laid, then mixing in enough new ma

terial to fill up the spot to be repaired, and more than a subject for the antiquary. It then subjecting it to the usual finishing openo doubt owes its present authority, if not rations, is vold for lack of novelty by reason its origin, to a regard to the peace of society of the prior French patent to Crochet, the and a desire to protect the individual from process in which differed chiefly in the fact arbitrary aggression. Hence it is usually

that the old asphalt was removed from tho said that it has regard to the solemnity of

spot to be repaired, while this was not dong tho livery of seisin, which ought not to be

by the Perking method. devested without some corresponding so

(No. 61.) lemnity. But there is one reason assigned by a very judicious compiler, which from its Argued October 28, 29, 1901. Decided Jan good sense and applicability to the nature of our government makes it proper to intro

uary 6, 1902. having had leisure to examine the authori- Otras Circuit

Court of Appeals for the tv which he cites for it: 'Every person,' Seventh Circuit to review a decree affirming says he, 'is supposed a natural-born subject a decision of the Circuit Court adjudging å that is resident in the Kingdom and that

patent invalid. Affirmed. owes a local allegiance to the King, till the

See same case below, 41 C. C. A. 123, 100 contrary be found by office.' This reason, Fed. 965. it will be perceived, applies with double The facts are stated in the opinion. force to the resident who has acquired of Messrs. Lysander Hill, William Rue the sovereign himself, whether by purchase Omohundro, Ernest Wilkinson, and Ray or by favor, a grant of freehold."

mond de Barnett for petitioner. That grantees of the public land take by No counsel for respondent. purchase this court, in Manuel v. Wulff, left no doubt. It was said that when a lo Mr. Justice MoKenna delivered the cation is perfected it has the effect of a opinion of the court: grant by the United States of the right of This suit was originally brought for the present and exclusive possession. Forbes v. infringements of three letters patent issued Gracey, 94 U. S. 762, 24 L. ed. 313; Belk v. to the petitioner as assignee of Amos PerMeagher, 104 U. s. 279, 26 L. ed. 735; kins. The patents were respectively num. Gwillim v. Donnellan, 115 U. S. 45, 29 L bered 501,537, 542,349, and 560,599, and ed. 348, 5 Sup. Ct. Rep. 1110; Noyes v. 'were dated respectively 18th July, 1893, 9th


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