are, in the sense of the act, commenced against the government when the claim is originally presented at the department for examination and settlement. Upon their transfer to the court of claims, they are to be proceeded in as other cases pending in said court.'" See, also, Ford v. U. S., 116 U. S. 213, 6 Sup. Ct. Rep. 360; U. S. v. McDougall's Adm'r, 121 U. S. 89, 7 Sup. Ct. Rep. 850.

We are of opinion that the claim here in suit--although by reason of its character "cognizable by the court of claims"---cannot properly be made the basis of a judgment in that court. As the United States are not liable to be sued, except with their consent, it was competent for congress to limit their liability, in that respect, to specified causes of action, brought within a prescribed period. Nichols v. U. S., 7 Wall. 126. It appears from the finding of facts that more than 10 years had expired after the claim first accrued, before it was presented to the proper department for settlement; and more than six years after the passage of the act of 1868, (Rev. St. §§ 1063, 1064,) which authorized the head of an executive department to transmit to the court of claims, for adjudication, any claim which involved disputed facts or controverted questions of law, or the decision of which would affect a class of cases, or furnish a precedent for future action. Consequently, in any view, this claim belonged to the class which, under the express words of the act of 1863, (Rev. St. § 1069,) were "forever barred," so far, at least, as the claimant had the right to a judgment in that court against the United States. The duty of the court, under such circumstances, whether limitation was pleaded or not, was to dismiss the petition; for the statute, in our opinion, makes it a condition or qualification of the right to a judgment against the United States that-except where the claimant labors under some one of the disabilities specified in the statute-the claim must be put in suit by the voluntary action of the claimant, or be presented to the proper department for settlement, within six years after suit could be commenced thereon against the government. Under the appellant's theory of the case, the second comptroller could open the case 20 years hence, and, upon the claim being transmitted by the secretary of the treasury to the court of claims, that court could give judgment upon it against the United States. We do not assent to any such interpretation of the statutes defining the powers of that court.

The general rule that limitation does not operate by its own force as a bar, but is a defense, and that the party making such a defense must plead the statute if he wishes the benefit of its provisions, has no application to suits in the court of claims against the United States. An individual may waive such a defense, either expressly or by failing to plead the statute; but the government has not expressly or by implication conferred authority upon any of its oflicers to waive the limitation imposed by statute upon suits against the United States in the court of claims. Since the government is not liable to be sued, as of right, by any claimant, and since it has assented to a judgment being rendered against it only in certain classes of cases, brought within a prescribed period after the cause of action accrued, a judgment in the court of claims for the amount of a claim which the record or evidence shows to be barred by the statute would be erroneous.

The judgment is affirmed.

Downs, Ex'r, etc., v. HUBBARD, Adm'r, etc.

(October 31, 1887.)

PUBLIC LANDS-RELIEF BETWEEN CONFLICTING TITLES BILL AGAINST SURVEYOR. Cornelio Vigil and Ceran St. Vrain claimed title to about 922 square leagues of land in Colorado. By act to confirm private land claims, (12 St. 71,) congress

confirmed the claim of Vigil and St. Vrain, but only to the extent of 11 squareleagues to each. By the act it was provided survey should first be made of all tracts occupied by actual settlers under title or promises to settle previously given by Vigil and St. Vrain, and these deducted from the 22 square leagues. These claims more than exhausted the 22 leagues. This statute was amended (15 St. 275, 440) for the adjustment of such claims as should be made out to the satisfaction of the register and receiver of the proper land-district. The register and receiver at Pueblo, Colorado, had presented to them claims on behalf of 39 such claimants, among them the claim of William Craig and that of Thomas Leitensdorfer. The register and receiver acting on the claims rejected those of Leitensdorfer and 22 others, and decided favorably in whole or in part on 13 claims. To Craig they awarded a little more than one-half of what he claimed. Leitensdorfer and others appealed to the commissioner of the general land-office, who entertained the ap-peal so far as to decide that in such cases an appeal would lie, and Craig appealed from the commissioner to the secretary of the interior, who sustained the authority of the commissioner to entertain and determine appeals from the register and receiver. Craig afterwards applied to the president, who, advised by the attorney general that the decisions of the register and receiver were final, directed the conmissioner to instruct the surveyor general of Colorado to deliver to Craig an approved plat of the land adjudged to him. Leitensdorfer filed a bill in equity against Craig and the surveyor general. Held, that he was not entitled to remedy by a bill in equity.

Appeal from the Circuit Court of the United States for the District of Colorado.

Under the treaty with Mexico of Guadalupe Hidalgo, Cornelio Vigil and Ceran St. Vrain claimed title, under a Mexican grant made in 1843, to a large tract of land embraced within the Huerfano, Pisipa, and Cucharos rivers to their junction with the Arkansas and Animas, known as the "Las Animas. Grant," and supposed to cover and include about 922 square leagues, lying in the territory of New Mexico, but within the limits of the present state of Colorado, and equivalent to 4,000,000 of acres.

By the act to confirm certain private land claims in the territory of New Mexico, approved June 21, 1860, (12 St. 71,) congress confirmed the claim of Vigil and St. Vrain, but only to the extent of 11 square leagues to each of said claimants. By the second section of that act it was provided "that, in surveying the claims of said Cornelio Vigil and Ceran St. Vrain, the location shall be made as follows, namely: The survey shall first be made of all tracts occupied by actual settlers holding possession under titles or promises to settle, which have heretofore been given by said Vigil and St. Vrain, in the tracts claimed by them; and, after deducting the area of all such tracts from the area embraced in twenty-two square leagues, the remainder shall be located in two equal tracts, each of square form, in any part of the tract claimed by the said Vigil and St. Vrain selected by them; and it shall be the duty of the surveyor general of New Mexico immediately to proceed to make the surveys. and locations authorized and required by the terms of this section." The fourth section of the act provides "that the foregoing confirmation shall only be construed as quitclaims or relinquishments on the part of the United States,. and shall not affect the adverse rights of any other person or persons whomsoever." This statute was amended by the act of February 25, 1869, (15 St. 275, 440,) as follows:

"Chapter 47 An act to amend an act entitled 'An act to confirın certain private land claims in the territory of New Mexico.'

"Be it enacted by the senate and house of representatives of the United States of America in congress assembled that the exterior lines of the Cornelio Vigil and Ceran St. Vrain claims of eleven leagues each, subject to claims derived from said parties as confirmed by the act of congress approved twenty-first June, 1860, United States Statutes, volume twelve, page seventy-one, shall be adjusted according to the lines of the public surveys, as nearly as practicable, with the limits of said claims, yet in as compact a form as possible; and the claims of all actual settlers upon the tracts heretofore

claimed by the said Vigil and St. Vrain, holding possession under titles or promises to settle, which have been made by said Vigil and St. Vrain, or their legal representatives, prior to the passage of this act, who may establish their claims within one year from the passage of this act, to the satisfaction of the register and receiver of the proper land district, shall in like manner be adjusted according to the subdivisional lines of survey, so as to include the lands so settled upon or purchased, and the areas of the same shall be deducted and excluded from the adjusted limits of the claims of said Vigil and St. Vrain, respectively; and the claims of all other actual settlers falling within the limits of the located claims of Vigil and St. Vrain shall be adjusted to the extent which shall embrace their several settlements upon their several claims being established either as pre-emption or homesteads, according to law; and for the aggregate of the areas of the latter class of claims the said Vigil and St. Vrain, or their legal representatives, shall be entitled to locate a like quantity of public lands, not mineral, according to the lines of the public surveys, and not to exceed one hundred and sixty acres in one section.

"Sec. 2. And be it further enacted that it shall be the duty of the general land-office to cause the lines of the public surveys to be run in the regions where a proper location would place the said Vigil and St. Vrain claims, and that the expense of the same shall be paid out of any moneys in the treasury not otherwise appropriated; yet, before the confirmation of the said act of June 21, 1860, shall become legally effective, the said Vigil and St. Vrain, or their legal representatives, shall pay the cost of so much of said surveys as inures to their benefit, respectively, and that all settlers of the said third class, whose claims may be adjusted as valid, shall have the right to enter their improvements by a strict compliance with the pre-emption or homestead laws. "Sec. 3. And be it further enacted that, upon the adjustment of the Vigil and St. Vrain claims according to the provisions of this act, it shall be the duty of the surveyor general of the district to furnish proper approved plats to said claimants, or their legal representatives, and so in like manner to said derivative claimants, which shall be evidence of title, the same to be done according to such instructions as may be given by the commissioner of the general land-office.

"Sec. 4. And be it further enacted that, immediately upon running the lines as provided in section second of this act, the surveyor general of said district shall notify the said Vigil and St. Vrain, or their agents or legal representatives, of the fact of such survey being made, and said claimants shall, within three months after notice of such survey, select and locate their said claims in accordance with such survey, and the provisions of this act, and of the act to which this is amendatory, so far as the same is not changed by this act, and shall within said time furnish the surveyor general with the description of such location, specifying the lines of the same. And the parties failing to make such selection and location in such manner and within such time shall be deemed and held to have abandoned their claim, and their rights and equities under this act, and the act to which this is amendatory shall cease and terminate.

"Sec. 5. And be it further enacted that in case of the neglect or refusal of the said Vigil and St. Vrain, or either of them, to accept of the provisions of this act, and the act to which this is amendatory, and to locate their said claims, as provided therein, no suit shall be brought or proceedings instituted in any of the courts of the United States by such party, or by any one claiming through or under them, to establish or enforce said claims, or for any cause of action founded upon the same, after six months from the passage of this act."

The time fixed by section 1 of the last-recited act for establishing the derivative claims was extended by a joint resolution of April 28, 1870, (16 St. 373, 663,) by which it was directed that the act should be so construed "as to

authorize the presentation of such derivative claims within one year from the completion and approval of the subdivisional surveys contemplated by said act of twenty-fifth February, 1869."

In pursuance of the act of February 25, 1869, and within the time limited by the joint resolution of April 28, 1870, there were presented to Irving W. Stanton and Charles A. Cook, the register and receiver at Pueblo, Colorado, claims on behalf of about 39 derivative claimants to lands within the limits of the Las Animas grant, covering in all more than 183,553.85 acres. Among them was the claim of William Craig for 127,000 acres, and that of Thomas Leitensdorfer for about 16,000 acres, which were filed on the twenty-third of October, 1872. The register and receiver acted upon all the claims, rejecting that of Leitensdorfer and 22 others amounting to more than 85,939.32 acres. They decided favorably, in whole or in part, on 13 claims. To 12 of these claimants they allowed 24,362.98 acres; the remaining 73,251.55 acres were awarded to Craig. The decisions of these officers upon these claims bear date February 23, 1874, and were immediately reported to the general land-office. Nineteen of the claimants whose claims had been rejected, and among them Leitensdorfer, appealed from the decisions in favor of Craig, and against themselves, respectively. The commissioner of the general land-office entertained the appeals so far as to decide that an appeal would lie in such cases, and from that decision Craig appealed from the commissioner of the general land-office to the secretary of the interior. This appeal was entertained, and the secretary of the interior rendered a decision sustaining the authority of the commissioner of the general land-office to entertain and determine the appeals from the register and receiver. About the twenty-fifth of May, 1875, Craig applied to the president for an order directing that the surveyor general of Colorado be required to issue a plat of the survey of the land awarded to Craig by the decision of the register and receiver. Being advised by the attorney general, to whom the matter was referred, that, under the terms of the acts of congress relating to the subject, the decisions of the register and receiver were final, from which no appeal would lie to the commissioner, (15 Op. Atty. Gen. 94,) the president, on March 2, 1877, made an order directing the commissioner of the general land-office to instruct the surveyor general of Colorado to deliver to Craig an approved plat of the land adjudged to him by the register and receiver of the Pueblo land-district, in the state of Colorado, dated February 23, 1874. The commissioner of the general land-office on March 7, 1877, instructed the surveyor general of Colorado to prepare a plat of the lands specified and awarded by the register and receiver to Craig.

Before that plat was delivered, Leitensdorfer, on May 4, 1877, filed his bill in equity in the circuit court of the United States for the district of Colorado, against William L. Campbell, the surveyor general of the United States for Colorado, and Craig. In this bill he set out the matters above stated, and in addition thereto alleged that his own title was derived by mesne conveyances from Eugene Leitensdorfer, to whom Vigil and St. Vrain had conveyed an undivided one-sixth of the entire grant to them, which would have amounted to about 682,724 1-6 acres if the whole grant had been confirmed, but which he had reduced to 25 sections, amounting to about 16,000 acres, to correspond with the reduced grant as confirmed by act of congress. The bill further alleged that the reduced tract thus claimed by the complainant before the register and receiver was in or near the valleys of the Las Animas or Purgatoire river and tributaries, in Pueblo land-district, Las Animas county, Colorado, naming and identifying certain sections and half-sections as composing it; and admitted that the claim of the complainant, as thus reduced, did not conflict on the ground with the derivative claim of Craig. The bill further alleged that the complainant produced evidence before the register and receiver to establish, in addition to the preceding allegations of his bill, "the continuous inhabitancy and cultivation of his claim by himself since May, 1862, which

inhabitancy and cultivation still continue. The bill also alleged that the final delivery by the surveyor general of the plat of survey of the derivative claims of Craig, as ordered by the president, would be merely a ministerial act of the surveyor general, and therefore the subject of an injunction; that such plats, under section 3 of the act of February 25, 1869, could only issue after the final adjustment of the whole of said confirmation of 22 leagues, and of the several derivative claims constituting the same; and that said plats, when so furnished, would be evidence of title, and would divest the United States of the fee-simple in favor of the derivative claimants receiving such plats; "that the plat ordered to be delivered by the surveyor general to or for Craig would leave no part of said confirmation applicable to complainant's claim or the claims of the other derivative claimants whose appeals are now pending before the commissioner, and would, in fact, preclude the commissioner from considering the appeals of complainant, and of the other derivative claimants; that complainant's claim is not in conflict on the ground with Craig's claim, but is many miles distant, and the mass of the derivative claims under Vigil and St. Vrain, though greatly exceeding the quantity confirmed, are competitors for area, but not for specific locations; that for these reasons the delivery of Craig's plat, or of the plat of any derivative claim whatever, before the final decision by the commissioner and secretary of the said appeals now pending before the commissioner, and the final adjustment by them of the whole mass of said derivative claims, would be against equity and the rights of complainant and other appellants in said appeals, and would inflict on complainant and said appellants irreparable injury.”

The prayer of the bill was for a perpetual injunction to restrain the delivery of the plat and survey of the derivative claim of Craig "until the appeals of complainant and of the other derivative claimants under them, now pending before the commissioner of the general land-office, shall be tried and finally adjudged on their merits, under the direction of the secretary of the interior, according to law, and until it shall appear by such final judgment that said Craig, or other derivative claimants under said Vigil and St. Vrain, or either, are entitled to plats as evidence of title;" and also for an injunction to the same effect in the mean time. The bill also contained a general allegation to the effect that the register and receiver were corrupted by Craig, and fraudulently induced to make the award in his favor.

On the twenty-first of May, 1877, a temporary injunction was granted as prayed for on certain conditions, one of which was that the complainant, within 30 days, should "commence proceedings in the proper court of the District of Columbia, having for their object an order on the general land-office to hear and determine the appeals mentioned and described in the said bill of complaint as having been taken by the said complainant from the decision of the register and receiver of the land-office at Pueblo, in respect to the lands described in the said bill."

On the twenty-fifth of June, 1877, an affidavit was filed showing that on the nineteenth of June the complainant had caused to be filed in the supreme court of the District of Columbia a petition and affidavit for a mandamus against the commissioner of the general land-office, praying for a writ commanding him to proceed to hear and determine the said appeals.

On July 13, 1877, the present case was heard on a demurrer to the bill, and on a motion to dissolve the injunction, when an order was made dissolving the injunction, and sustaining the demurrer, with leave to the complainant to file an amended and supplemental bill, which he accordingly did. That bill, filed on October 6, 1877, reciting all the matters contained in the original bill, alleges in addition that, in the supreme court of the District of Columbia, on July 3, 1877, the motion of the complainant for a rule on the commissioner of the general land-office to show cause why the writ of mandamus should not issue against him, to require him to proceed with the hearing of the appeals