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be used as a basis upon which to sustain the appellant in the fraudulent retention of money which she borrowed and promised to repay.

Section 5136 of the Revised Statutes [U. S. Comp. St. 1901, p. 3455] impliedly forbids a national bank to loan money on real estate security, but a mortgage upon real estate given to a bank to secure a contemporaneous loan or future advances is valid between the parties, and may be enforced. Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188; Bank v. Whitney, 103 U. S. 99, 26 L. Ed. 443. Section 5201 [U. S. Comp. St. 1901, p. 3494] expressly prohibits a loan by a national bank upon a pledge of its own shares, but such pledge was enforced in Bank v. Stewart, 107 U. S. 676, 2 Sup. Ct. 1778, 27 L. Ed. 592. Section 5200 of the Revised Statutes [U. S. Comp. St. 1901, p. 3494] forbids any bank to loan to one person or firm an amount in excess of one-tenth of its actual paid capital stock, but it is no defense to an action for the recovery of money loaned by a bank that the amount of the loan exceeded the limit prescribed by this section. Gold-Mining Company v. National Bank, 96 U. S. 640, 24 L. Ed. 648.

An indebtedness which a national bank incurs in the exercise of any of its authorized powers, and for which it has received and retains the consideration, is not void from the fact that the amount of the debt surpasses the limit prescribed by section 5202 of the Revised Statutes [U. S. Comp. Št. 1901, p. 3494), or is even incurred in violation of the positive prohibition of the law in that regard. Weber v. Bank, 64 Fed. 208, 12 C. C. A. 93. See, also, numerous other cases cited by the court in Hanover National Bank v. First National Bank, 109 Fed. 421, 48 C. C. A. 482; Jones on Mortgages, $$ 618, 619; Jefferson v. Burhans, 85 Fed. 949, 29 C. C. A. 481; Crowns v. Forest Land Company (Wis.) 74 N. W. 546; Callicott v. Allen (Ind. App.) 67 N. E. 196. It is true that the cases of Drexler v. Tyrrell, 15 Nev. 114, and Sheldon v. Pruessner, 52 Kan. 579, 35 Pac. 201, 22 L. R. A. 709, are against the view here expressed, but we are of the opinion that those decisions are not sound.

We are unable to see that A. C. McKinnon is a necessary party to the present suit.

The judgment is affirmed.

CASCADUN et al. v. BARTOLIS.

(Circuit Court of Appeals, Ninth Circuit. June 27, 1906.)

No. 1,259.

MINES AND MINERALS-PUBLIC LANDS-MINERAL LOCATION-DISCOVERY-IN

STRUCTIONS.

In an action to recover certain land which was a part of the public domain, plaintiff claimed under a placer mining location. The court charged that it was essential to the validity of such location that the discovery of mineral thereon was such that an ordinarily prudent man, not necessarily a miner, would be justified in expending his time and labor in developing the property, but in the same connection declared that it was essential to a recovery by plaintiffs that they prove with reasonable clearness that for the labor and capital expended in working the ground, it would yield a reasonable profit. Held, that the latter instruction was erroneous, and in conflict with the correct rule previously charged.

In Error to the District Court of the United States for the Third Division of the District of Alaska.

Louis K. Pratt and Carl M. Johnason, for plaintiffs in error.

Edward E. Cushman, A R. Heilig, and Leroy Tozier, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS, Circuit Judge. The plaintiffs in error, who were plaintiffs in the court below, brought this action to recover from the defendant thereto two certain lots of land situated in the town commonly known as "Gates City,” in the Fairbanks mining district, territory of Alaska, alleging in their complaint themselves to be the owners, as against all persons except the United States, of the lots of land, and entitled to their possession, and alleging the unlawful entry thereon by the defendant, and his ousting of the plaintiffs, and his withholding of the possession of the property from them.

The answer of the defendant put in issue the allegations of the complaint, and affirmatively alleged that at the time of the defendant's entry upon the lots in question they constituted a part of the vacant and unappropriated public lands of the United States, and that, as such, he entered into the possession of the land and built thereon two log cabins, and has ever since continued in the actual possession thereof. In an amended answer the defendant also put in issue the allegations of the complaint, and repeated the affirmative averments of his original answer, and added the following averments :

“That said cabins are situated in what subsequently became, long prior to the beginning of this action, and is now, the townsite of Gates City; that the inhabitants of said townsite number more than 300, and defendant is an occupant of said town, and a large number of dwellings, for the purpose of carrying on business therein, have been constructed in said townsite, and are used for said purposes; that said townsite embraces about 80 acres of land, and it is the intention of the occupants thereof to enter the same for townsite purposes, for the several use and benefit of the occupants of such townsite, and secure patent therefor in accordance with the provisions of the act of Congress in such case made and provided; that defendant is the owner and entitled to the possession of said cabins and grounds, and claims the same as an inhabitant of said townsite, and as a prior occupant of said premises."

A demurrer of the plaintiffs to the affirmative defense thus set up was overruled by the court below, to which ruling an exception was taken and allowed. Thereafter the plaintiffs filed a reply to the amended answer, denying defendant's affirmative allegations. On the trial, which was had with a jury, the plaintiffs relied upon a certain placer mining location, antedating the entry upon the ground by the defendant, the validity of which location was contested by the defendant, who moved the court below, both upon the conclusion of the evidence on behalf of the plaintiffs, and also upon the conclusion of the entire evidence in the cause, to direct the jury to return a verdict for the defendant upon the ground that the evidence was insufficient to justify a verdict for the plaintiffs. The trial court denied the motion in each instance, thus holding that the case was one to be submitted to the jury under instructions, and proceeded to instruct the jury in respect to the law applicable to and controlling the cause.

The principal controverted question related to the sufficiency of the mineral discovery claimed to have been made by the locators to sustain their placer location, and upon that vital question the court below instructed the jury, among other things, as follows:

“What is 'discovery'? What finding of mineral upon a placer mining claim is sufficient to satisfy that clause of the statute which provides that no location of a mining claim shall be made until the discovery of the mineral within the limits of the claims are located? Sections 2320, 2329, Rev. St. [U. S. Comp. St. 1901, pp. 1424, 1432.] This inquiry is partly answered by the terms of section 2318 of the Revised Statutes of the United States, in the following language: 'Sec. 2318 [U. S. Comp. St. 1901, p. 1423]. In all cases lands valuable for mineral shall be reserved from sale, except as expressly directed below. It is only lands valuable for mineral which are reserved from sale for disposal under the mineral laws. Lands not valuable for mineral are not so reserved, and may, if otherwise unappropriated and unoccupied, be settled upon, used, and occupied for townsite or business purposes, or taken under the homestead or other laws for the settlement and sale of the public domain. Lands valuable for mineral are lands having value or worth for the mineral contained therein; lands containing mineral in such quantity as to pay a reasonable profit upon the capital and labor necessary to extract the mineral therefrom. Any other lands would have no value for mineral, and are not such as the statute contemplates reserving from sale for disposition under the mineral laws of the United States.

* In this case the plaintiffs—the mineral claimants--must prove from the evidence, with reasonable clearness, that the land is valuable for mineral purposes, that is, that for the labor and capital expended in working it, the land will yield a reasonable profit, and unless they do so you should find for the defendant. The mere finding of' a color or colors of gold, or a cent's worth, or even thirteen cents' worth, is not, of itself, sufficient to constitute a discovery, or to prove that the land is valuable for mineral working. There must be such a discovery of mineral on the claim as to satisfy you that an ordinarily prudent man, not necessarily a miner, would be justified in expending his time and labor thereon in the development of the property; and, unless you are so satisfied in this case, by a fair preponderance of the evidence, you should find a verdict for the defendant."

The reference in these instructions to small quantities of gold was based upon testimony introduced on the part of the plaintiffs, tending to show that certain pannings by and on behalf of the locator, showed colors of gold, and some of them one, two, three, and as high as thirteen cents' worth to the pan. While the court in one part of these instructions did state to the jury the correct rule, that it was essenial to the validity of the location under which the plaintiffs claimed that the discovery of mineral thereon was such that "an ordinarily prudent man, not necessarily a miner, would be justified in expending his time and labor thereon in the development of the property” (Chrisman v. Miller, 197 U. S. 313, 25 Sup. Ct. 468, 49 L. Ed. 770), yet it also, at the same time, and in the same connection, expressly and specifically instructed them that it was essential to a recovery by the plaintiffs that they should have proved with reasonable clearness that for the labor and capital expended in working the ground it would yield a reasonable profit, and that, unless the jury so found, their verdict should be for the defendant. This latter specific declaration is not only not a correct statement of the law, but it is also in direct conflict with the correct rule elsewhere given in the instructions above set out.

For this error the judgment of the court below must be, and is, reversed, and the cause remanded for a new trial.

Ex Parte CHICAGO TITLE & TRUST CO.

(Circuit Court of Appeals, Seventh Circuit. April 24, 1906.)

No. 1,273.

MANDAMUS-GROUNDS FOR WRIT--ENFORCEMENT OF COMPLIANCE WITH MAN

DATE.

Where a decree in bankruptcy entered by a District Court upon a mandate from the Circuit Court of Appeals clearly does not conform to such mandate, and a party is without other remedy to preserve rights which have been sustained by a decision of the Supreme Court to enforce which the mandate was issued, the Circuit Court of Appeals may enforce a compliance with such mandate by mandamus requiring a modification of the decree.

[Ed. Note-For cases in point, see vol. 33, Cent. Dig. Mandamus, & 121.]

*

* *

On Petition for Writ of Mandamus.
Joseph Paden and Newton Wyeth, for petitioners.
Henry S. Robbins, for respondent.
Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

PER CURIAM. This is an application for a writ of mandamus to the judge of the District Court, sitting in bankruptcy, in a proceeding entitled In re Alexander Rodgers, Bankrupt, for the modification of a decree therein of November 1, 1905, purporting to be entered "upon the mandate of the United States Circuit Court of Appeals for the Seventh Circuit remanding said cause

for further proceedings in conformity with the opinion of the Supreme Court of the United States." The opinion of the Supreme Court referred to is reported under the title of First National Bank of Chicago v. Chicago Title & Trust Co., 198 U. S. 280-288, 25 Sup. Ct. 693, 49 L. Ed. 1051, on certiorari to the Circuit Court of Appeals for the Seventh Circuit. The petition sets out the decree as entered, and alleges that it does not conform to the opinion of the Supreme Court, or the mandate issued by this court thereupon. We have no doubt the decree of the District Court is not in conformity with the opinion and directions of the Supreme court. The question, whether the jurisdiction of this court extends to the enforcement of such directions by mandamus, under the terms of the mandate to this court, is difficult of solution within the authorities. The inquiry in the present case, however, involves the further fact, stated in the return to the alternative writ, that like application for mandamus was presented by the petitioner to the Supreme Court and the motion for leave to file such petition was denied without qualification. The supervisory jurisdiction of this court under the bankruptcy act July 1, 1898, c. 541, § 24b, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432] is not invoked by the petition, nor can it be exercised in this instance, for want of necessary parties and timely application. Moreover, the petition avers that the statute of limitations will soon run against the petitioner's claims in reference to which the Supreme Court directed modification of the decree, to provide against "prejudice to the right of respondents to litigate in a proper court.'

With the right to such modification unquestionable under the express terms of that opinion and need of speedy relief to preserve any rights of the petitioner, no remedy appears, unless the writ of mandamus can issue as sought by this application.

Upon the decision of the cause by the Supreme Court, on certiorari to this court, it was “remanded to the said Circuit Court of Appeals with directions to dismiss the appeals and to remand the cause to the District Court * * for further proceedings in conformity with the opinion of this court.” The mandate of this court remanded the cause to the District Court in like terms, without specifying the modifications to be made. Whether the last-mentioned mandate was the command of this court, in the sense of the statute and authorities, may not be clear, but the mandate of the Supreme Court is plainly addressed to this court for remand to the District Court to carry out the directions. In view of the form and terms thus adopted by the Supreme Court, together with its denial of leave to file there an application for the writ under the circumstances stated, it is reasonable to assume that the Supreme Court intended and treated the final direction to the District Court as proceeding from this court, under the decision on certiorari, with jurisdiction to enforce obedience. Thus considered. the petitioner is entitled to the writ, and the alternative writ issued herein is, accordingly, made peremptory.

MACKENZIE v. PEASE, Sheriff,

Ex parte MACKENZIE.

(Circuit Court of Appeals, Seventh Circuit. May 15, 1906.)

No. 1,173.

1. COURTS-UNITED STATES SUPREME COURT-APPEAL FROM CIRCUIT COURT OF

APPEALS—HABEAS CORPUS.

A judgment of the Circuit Court of Appeals, affirming one of the Circuit Court in a habeas corpus proceeding on appeal taken by the petitioner, is not appealable to the Supreme Court, even though an appeal might have been taken to that court direct from the Circuit Court, under Act March 3, 1891, c. 517, $ 5, 26 Stat. 827 [U. S. Comp. St. 1901, p. 549).

[Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, $$ 1017, 1018.]

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