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Cited in Shiver v. United States, 159 U. S. 498, 40 L. 233, 16 S. Ct. 57, in case of homestead locator between time of entry and patent.

Indians. Every purchaser of timber from Indians is charged with notice of presumption against their right to cut and sell timber from public lands, p. 594.

Cited in Northern Pacific R. R. v. Lewis, 162 U. S. 376, 40 L. 1006, 16 8. Ct. 834, and United States v. Gumm, N. Mex., 58 Pac. 402, holding presumption is that timber cut from public lands was illegally cut.

United States may maintain action for cutting and removing timber from public lands, p. 594.

Cited and applied in Shiver v. United States, 159 U. S. 498, 40 L. 233, 16 S. Ct. 57, criminal action for removal of timber by homestead locator; Stone v. United States, 167 U. S. 194, 42 L. 133, 17 S. Ct. 784, affirming S. C., 64 Fed. 676, 29 U. S. App. 32, holding unlawful cutter of timber in one district may be tried in another if found there; United States v. Steenerson, 50 Fed. 505, 4 U. S. App. 332, holding, where ownership of timber depends on that of land, title thereto may be determined in replevin; dissenting opinion in United States v. Laughrey, 172 U. S. 224, 231, 19 S. Ct. 160, 162, majority holding no action lay for timber cut from land conditionally granted State to aid railroads. See 4 Dill. 469, F. C. 1,581.

note on this subject.

Distinguished in United States v. Laughrey, 172 U. S. 214, 19 S. Ct. 156, holding United States could not maintain action for timber cut from land conditionally granted State to aid railroads; United States v. Freyberg, 32 Fed. 196, holding right of action for timber cut by homestead settler determined on purchase of land by settler.

19 Wall. 595-597, 22 L. 202, UNITED STATES v. INNERARITY.

Public lands.- One filing petition for confirmation under act of June 22, 1860, providing for adjustment of land claims in Florida, etc., cannot, upon discovery that another than himself has right to land, substitute that other as claimant, after time for latter to file claim has elapsed, p. 597.

Cited in United States v. Watkins, 97 U. S. 223, 24 L. 954, conferring title of rightful claimant of same land.

19 Wall. 598-605, 22 L. 177, UNITED STATES v. JONAS.

Internal revenue.— Act of March 3, 1868, respecting internal revenue frauds, authorizing solicitor of treasury to sell certain lands, with approval of secretary of treasury, qualifies and limits powers of solicitor under act of May 29, 1830, pro tanto repealing said act, p. 603.

United States.- Sale by solicitor of treasury, under act of March 3, 1868, of lands acquired for debt, is invalid unless made with approval of secretary of treasury, and purchaser need not accept deed without recital of such approval, p. 604.

Not cited.

19 Wall. 606-611, 22 L. 187, HOLLADAY v. DAILY.

Principal and agent.- General power of attorney to sell and convey, signed by husband and wife, authorizes deed executed in name of husband alone, p. 611.

Cited in Williams v. Paine, 169 U. S. 68, 42 L. 664, 18 S. Ct. 284, holding power of attorney executed by married woman not revoked by Civil War; Knight v. Lawrence, 19 Colo. 434, 36 Pac. 245, holding deed of married woman may be read in evidence, although not acknowledged in conformity with statute; Owers v. Olathe, etc., Co., 6 Colo. App. 11, 39 Pac. 983, holding validity of record not dependent upon acknowledgment of deed. See 22 Am. St. Rep. 726, note.

Distinguished in Wambole v. Foote, 2 Dak. 18, 2 N. W. 242, holding private examination of married woman, upon acknowledging deed, a personal matter; State v. Clay, 100 Mo. 581, 13 S. W. 829, denying right of married woman to execute letter of attorney at common law; Gilbert v. How, 45 Minn. 123, 22 Am. St. Rep. 726, 47 N. W. 644, holding conveyance of separate tract of one party not authorized by power executed jointly to sell land of signers; Clark v. Mumford, 62 Tex. 534, holding married woman cannot execute power of attorney to convey interest in property.

19 Wall. 611-618, 22 L. 203, PACKET CO. v. SICKLES.

Limitations of actions.- Right to plead statute of limitations does not depend upon discretion of court, p. 615.

Courts have right to prescribe reasonable rules regulating time and manner of filing pleas, p. 615.

Courts. Where court bases its action upon its rules, party assigning error to such action, must exhibit said rules in bill of exceptions; so held in case where plea of statute of limitations was denied under court rules, p. 616.

Patents.-Measure of damages in actions at law for infringement, is established rate for license to use invention, p. 617.

Cited and principle applied in Burdell v. Denig, 92 U. S. 720, 23 L. 766, holding profits which plaintiff might have made, not proper measure in action at law; Root v. Railway Co., 105 U. S. 198, 199, 214, 26 L. 978, 984, holding action for accounting for profits of infringer properly dismissed where legal remedy existed; Emigh v. B. & O. R. R., 4 Hughes, 277, 6 Fed. 289, applying legal measure

in equity; Vaughan v. Central Pacific R. R., 4 Sawy. 282, F. C. 16,897, dismissing bill in equity for accounting where value of license fee was adequate measure of damages; Covert v. Sargent. 42 Fed. 298, holding revised statutes, section 4921, allowing recovery of treble damages in lawsuits for infringements, does not apply to profits, same not being recoverable at law. Cited generally in Head v. Porter, 70 Fed. 500.

Qualified in Birdsall v. Coolidge, 93 U. S. 70, 23 L. 805, holding rule not applicable where use was limited and for brief period; Rude v. Westcott, 130 U. S. 165, 32 L. 894, 9 S. Ct. 468, holding sales of licenses must be common in order to make their price proper measure of damages; Westcott v. Rude, 19 Fed. 833, holding proof of single license insufficient to establish market price; Wooster v. Thornton, 26 Fed. 276, holding license fee established after infringement not necessarily proper measure; Hunt, etc., Fruit Co. v. Cassidy, 53 Fed. 262, 7 U. S. App. 424, holding established license fee only a means of estimating market value of invention. Distinguished in Tilghman v. Proctor, 125 U. S. 144, 31 L. 666, 8 S. Ct. 898, holding profits of infringers recoverable in equitable action; Knox v. Great western Min. Co., 6 Sawy. 431, F. C. 7,907, allowing recovery of profits in equity; Cassidy v. Hunt, 75 Fed. 1014, 1017, holding court, in absence of established royalty, may consider what would be reasonable royalty.

19 Wall 619-634 22 L. 211, MACKAY v. EASTON.

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Deeds. Fact that grantor of right to locate lands in lieu of those at New Madrid, injured by earthquake (under act of Feb. 17, 1815), described himself as of another place, is immaterial, where his identity with owner of New Madrid land is sufficiently stated in body of deed, p. 631.

Reports of decisions are not evidence of facts there disclosed, in other cases, p. 632.

Followed in Beach v. Hobbs, 82 Fed. 920, holding finding of facts in one case not binding on other parties in another case. Cited generally in Bell v. State, 57 Md. 115.

Public lands.- Act of Feb. 17, 1815, providing for location of lands in lieu of those injured by New Madrid earthquake, contemplated that title to land so injured should pass to United States at same time that right to title of lien lands passed to claimant, p. 633.

Cited and applied in Hot Springs Cases, 92 U. S. 713, 23 L. 696, Hammond v. Johnston, 93 Mo. 211, 6 S. W. 87, and Black v. Morrison, 112 Mo. 353, 20 S. W. 342, all holding title to locations under said act did not pass until return of survey; Hammond v. Coleman, 4 Mo. App. 313, holding return of survey whenever made effected completed location.

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19 Wall. 635-640, 22 L. 215, AICARDI v. STATE.

Courts.- Construction of State statute by highest State court is authoritative in Supreme Court, p. 639.

Statutes permitting gaming must be strictly construed, p. 640. Not cited.

19 Wall. 640-646, 22 L. 216, INSURANCE CO. v. FOGARTY. Insurance. Total marine loss is not necessarily an absolute destruction of thing insured, but may consist in destruction of its adaptability for purpose for which intended, p. 645.

Cited and rule applied in Williams v. Hartford Ins. Co., 54 Cal. 451, 35 Am. Rep. 79, applying rule to fire insurance on building; Monteleone v. Insurance Co., 47 La. Ann. 1568, 18 So. 473, holding such injury as to render building insecure and result in condemnation by city is total loss; Havens v. Fire Ins. Co., 123 Mo. 423, 45 Am. St. Rep. 577, 27 S. W. 723, 26 L. R. A. 112, and n., holding total destruction of building as such, although some materials remain, total loss; Hamburg-Bremen Ins. Co. v. Garlington, 66 Tex. 107, 59 Am. Rep. 615, 18 S. W. 337, holding injury by fire resulting in loss of identity as a building, total loss; Royal Ins. Co. v. McIntyre, 90 Tex. 174, 59 Am. St. Rep. 799, 37 S. W. 1069, 35 L. R. A. 674, holding evidence to prove practicability and cost of restoring building, admissible; Commercial Union Assurance Co. v. Meyer, 9 Tex. Civ. App. 14, 29 S. W. 96, holding destruction of identity of building as a building, total loss.

Distinguished in Washburn v. Reliance Ins. Co., 82 Fed. 297, 50 U. S. App. 244, holding underwriters not liable for constructive total loss unless consenting to abandonment; Corbett v. Spring Garden Ins. Co., 155 N. Y. 394, 50 N. E. 284, 41 L. R. A. 320, holding building rendered untenantable, but with walls intact, and repairable, not total loss; Royal Ins. Co. v. McIntyre, 90 Tex. 178, 59 Am. St. Rep. 804, 37 S. W. 1071, 35 L. R. A. 676, holding no total loss where building may be reasonably restored to previous condition.

Insurance.— Where sugar-packing machine was so injured as to render no part of it fit for the use for which it was intended, there is a total loss, although the material thereof was saved and of value as old iron, p. 645.

19 Wall. 646-655, 22 L. 219, WARREN v. VAN BRUNT.

Public lands. Settlement on unsurveyed land in Minnesota prior to act of August 4, 1854, conferred no right of pre-emption, p. 652.

Public lands.- Quarter of quarter section cannot be subdivided for purposes of entry and purchase, p. 652.

Public lands.- Decision of land department as to rights of claimant for patent, is conclusive upon all matters of fact, p. 653. Cited and followed in Vance v. Burbank, 101 U. S. 519, 25 L. 931, holding department's decision conclusive as to length of residence on land; Catholic Bishop v. Gibbon, 158 U. S. 166, 39 L. 936, 15 S. Ct. 784, and Shanklin v. McNamara, 87 Cal. 378, 26 Pac. 346, both holding decision of land department, upon questions of fact, conclusive; Danforth v. Morrical, 84 Ill. 458, holding decision as to aptness of time and sufficiency of proof in perfection of title, final; Fuller v. Shedd, 161 Ill. 492, 52 Am. St. Rep. 397, 44 N. E. 296, 33 L. R. A. 161, holding department's decisions on questions of fact conclusive; Keane v. Brygger, 3 Wash. 350, 28 Pac. 657, holding decree of secretary of interior, approving sale of university lands, under act of March 14, 1864, conclusive; Caldwell v. Bush, Wyo.

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45 Pac. 490, holding rulings of department cannot be corrected in collateral proceedings between parties; dissenting opinion in Rutledge v. Murphy, 51 Cal. 391, 399, holding facts may be examined by court of equity; Chapman v. Quinn, 56 Cal. 285, 286, 287, majority not passing upon point. See 20 Am. Dec. 273, extended note, on conclusiveness of actions of land officers.

Public lands. While decision of land commissioner as to issuance of patent to one of two claimants is conclusive, courts may inquire as to whether patentee should hold absolutely or in trust for defeated claimant, p. 653.

See 12 Am. Dec. 566, 567, extended note, on patents, and 20 Am. Dec. 274, extended note, on conclusiveness of department's decisions.

Distinguished in Craig v. Leitensdorfer, 123 U. S. 210, 31 L. 122, 8 S. Ct. 96, holding courts possess no general power to supervise actions of executive officers.

Public lands.- Actual time of settlement, not statements thereof in declaratory statement, are to be considered in passing upon priority of settlement, p. 653.

Equity. Relief will not be granted on claim set up in replication, but not in original bill, and granting of which is prayed for only in event case set up in bill fails, p. 654.

Cited in Bradley v. Converse, 4 Cliff. 375, F. C. 1,775, holding affirmative relief will not be granted upon grounds not distinctly alleged in bill

Public lands. Entry in trust for another, being forbidden by statute, equity cannot decree such entry was made, p. 655.

Cited and principle applied in Cox v. Donnelly, 34 Ark. 765, holding agreement by homestead enterer, for sale of land, made prior to completion of entry, void; Shorman v. Eakin, 47 Ark. 358, 1 S. W. 562, holding no lien can be fixed on land entered under home

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