the section on which the premises in controversy are situated, from the State of California, and took a patent. The company does not in any manner connect itself with this title or with that of any other occupant of the section previous to the survey.

In Sherman vs. Buick, 93 U. S., 209, it was decided that the State of California took no title to sections 16 and 36, under the Act of 1853, as against an actual settler before the survey, claiming the benefit of the pre-emption laws, who perfected his claim by a patent from the United States. In such a case the State must look for its indemity to the provisions of section 7 of the Act. As against all the world except the pre-emption settler, the title of the United States, passed to the State upon the completion of the surveys, and if the settler failed to assert his claim or to make it good, the rights of the State became absolute. The language of the Court is (p. 214) "These things [settlement and improvement under the law] being found to exist when the survey ascertained their location on a school section, the claim of the State to that particular piece of land was at an end; and it being shown in the proper mode to the proper officer of the United States, the right of the State to the land was gone, and in lieu of it she had acquired the right to select other land agreeably to the Act of 1826."

In that case the controversy was between the settler, who had perfected his title from the United States, and a purchaser from the State. Here the company does not claim under the settler's title, but seeks by means of it to defeat that of the State, and thus leave the land in a condition to be operated upon by the Act of July 26. The settler, however, was under no obligation to assert his claim, and he having abandoned it, the title of the State became absolute as of May 19, 1866, when the surveys were completed. The case stands, therefore, as if at that date the United States had parted with all interest in and control over the property. As the Act of July 26th was not passed until after that time, it follows that it could not operate upon this land in favor of the company. This disposes of the only federal question in the record, and the judgment is, consequently affirmed.

FINAL PROCEEDINGS BY THE SUPREME COURT OF CALIFORNIA.

March, 27th, 1878.-Upon filing the mandate from the Supreme Court of the United States, and it appearing from the said mandate that the judgment heretofore rendered in this cause has been affirmed, with costs, by said Supreme Court of the United States it is therefore ordered that the remititur forthwith

issue in this cause in accordance with the judgment rendered herein by this Court, on the 30th day of April, 1875, and that respondent recover his costs in said Supreme Court of the United States, together with costs in this Court.

Supreme Court Unwritten Opinions.

THE case of HARRIS VS. WALKER (No. 5806) decided April 10th, came up on appeal from the Second Judicial District Court (Butte county.) The material facts are as follows: D. D. Harris, as sole survivor of the firm of Sanderson, Harris & Co., sued Ozias Walker for $686.11, as owing to the firm on a verbal guarantee for goods sold to S. Walker & Co., and S. Walker (a son of said Ozias Walker), between December 1st and 18th, 1875. The findings and judgment of the Court were for plaintiff, from which the defendant appealed, claiming that the verbal promise, if any, was void under the Statute of Frauds, and that defendant was relieved from any promise, if made, by continuing trust to S. Walker & Co. Harris claims an original and not collateral promise to pay, and no trust ever given to S. Walker & Co., though charged in that name on the books. The judgment and order is affirmed. Gifford & Lusk, attorneys for plaintiff and respondent; J. T. Daley, for defendant and appellant.

THE case of the UNION SAVINGS BANK vs. NOLAN, et al., decided April 10th, was an action brought in the Third District Court-Alameda county-(No. 5604), to recover $2500 and interest from July 18, 1873, and the amount of five certain notes and interest given to the bank by them for payment of taxes on the land on which the amount was secured, and counsel fees $250; and that a deed of trust which had been given the officers of the bank by Stephen and Mary Nolan, for the land be construed and made a mortgage, and be foreclosed and the premises sold, and the deficiency, if any, be entered in judgment against said Nolan. Defendant did not appear, and judgment went by default. And now come forward three dif ferent parties-W. S. Barnes, C. W. Reid, and Chas. Bred

hoff-with claims against the defendant Nolan, for which they had each attached and levied on the said land, but subsequently to the trust deed given to the bank. The Court decreed a foreclosure and sale of the premises as a mortgage, and the payment of the claims of the bank, and then the three other parties. Nolan appeals to the Supreme Court, urging that the Trustees under the deed refused to perform their duty and sell, and are guilty of fraud and negligence in permitting the default. Case came up on judgment roll, and former juagment affirmed and remittitur ordered forthwith. C. A. Tuttle, attorney for appellant; W. W. Crane, for respondent; Montgomery & Martiu, for the three other defendants.

SNYDER VS. JOHNSON, (No. 6016,) decided April, 15th, comes up from the Third District Conrt, Alameda county, with J. R. Glascock, W. H. Glascock and M. P. Wiggin, attorneys for plaintiff and appellant, and Heury Vrooman and A. Campbell, for defendant and respondent. The case was a represent. ative one of four or five others, commenced by citizens of Oakland, against Perry Johnson, the City Tax Collector, to whom they had paid, under protest, certain sums, as taxes or assessments made by the city, under an Act of Legislature to construct a main sewer, approved March, 23d, 1874. Bonds were authorized to be issued by that act, and this assessment was levied on the property of the certain district designated, to meet interest on those bonds for the year 1875-6. It appears that at the usual time of levying taxes for municipal purposes, the City Council had failed to ascertain the proper amount for this purpose, but subsequently the Assessor ascertained and assessed the amount, and entered on the Roll with the taxes. This roll was delivered to defendant as Collector, and he collected of plaintiffs $76 76, who demanded its return which was refused, and this action followed. Plaintifis plead unconstitutionality of the act, as operating unequally and unjustly as a special tax-also mandatory--and makes the City Corporation do it at large, instead of the property owners assessed. The judgment was for defendant, by MCKEE, District Judge. Motion made for a new trial on several strong grounds, but was denied. From the judgment and order appeal was taken, December, 10th, 1877. The judgment and order now affirmed.

THE case of GLIDDEN VS. ROBINSON (No.5616,) decided April 15th, is an appeal from the Nineteenth District Court, San Francisco, Gray & Haven, attórneys for plaintiff and respondent, and O'Connor & Pardow, attorneys, aud Edmund L. Goold, of counsel, for defendant and appellant. The basis of the action is a judgment rendered in November, 1871, by the Supreme Court of New York, against the defendants Lester L. Robinson, Silas Seymour and Alvin C. Morton, for $2,516.12, with accrued interest at 7 per cent. And

now, Wm. P. Glidden, et al, as executors of James P. Flint, deceased, seek to enforce that judgment. Defendants fought long and persistently, urging a multitude of points, but were met fully at every point, and judgment finally rendered for plaintifis for $3,354.82, from which defendants appealed on Bill of Exceptions, but the judgment and order are now affirmed, with Remittur forthwith.

The case of Burton vs. Robinson, (No. 5810.) decided April 15th, was an appeal from the 17th District Court, Los Angeles Co. in which V. E. Howard and Sons were Attorneys for Plaintiff and Appellant and Glassell, Chapman and Smiths for Defendant and Respondent. The action was Ejectment, by several tenants in common, the premises being 160 acres of land in San Diego Co. in which Maria A. Burton, Nellie Burton and Harry H Burton claims joint interest, adverse to Defendant W. N. Robinson. Decision had been heretofore rendered by Judge Sepulveda giving a one third interest and costs $10.25 to Harry H. Burton, one of the Plaintiffs but confirming to the Defendent Robinson the other two thirds interest, and costs $30.50 as against the other two Plaintiffs barring their cause. That decision had been affimed upon former appeal; and judgment rendered upon that remittiteir. Mothion to amend that judgment had been made by Harry H. Burton giving Plaintiff judgment for recovery of the whole which was denied, and on that order was this last appeal taken. The Respondent showed the appeal to be one day too late] Judgement and order reaffirmed.

Recent U. S. Land Decisions.

JOSEPH ALSIP.-A soldier who elects to make an additional homestead entry of a less number of acres than he is entitled to, cannot make another entry for the balance.

DEPARTMENT OF THE INTERIOR,
WASHINGTON, Feby. 6, 1878.

SIR-I have considered the appeal of Joseph Alsip, from your decision of October 13th, 1877, refusing to allow him to make a second additional homestead entry.

The records of your office show that Joseph Alsip made homestead entry (original) at Topeka, Kansas, on June 11th, 1870, for the N. E. 4 of N. W. 4, and N. W. 4 of N. E. 4 section 30, twp. 7, range 11.

On August 18th, 1874, he made an additional homestead entry at the same office, for the N. W. 4, of N. W. 4 of section 30, twp. 7, range 10, both entries containing 119 81-100 acres. You rejected Mr. Alsip's application on the ground that he had already exhausted his right by his additional entry of August 18, 1874; basing your decision upon the ruling of my predecessor in the case of August Block, Copp's Land Owner for May, 1876, page 21. Mr. Alsip has appealed from your decision and requested a modification of my predecessor's rulings on this point.

I can see no good reason why the ruling of my predecessor in the Block case should be modified. The person who has

previously made an original homestead entry of less than 160 acres, has the right to enter so much land as, when added to the quantity previously entered, will not exceed 160 acres, and if he elects to take less than the law allows, such election must be considered a waiver of his right to enter the greater quantity.

Your decision is affirmed, and the papers transmitted with your letter of October 24th, 1877, are herewith returned. C. SCHURZ, Secretary. The Commissioner of the General Land Office.

Very respectfully,

CENTRAL PACIFIC RAILROAD VS. STATE OF CALIFORNIA.

[From Copp's Land Owner for March.]

At the hearing held in this case the claim of the State to certain tracts was rejected either because the State failed to show that said lands were swampy or no testimony was offered as to their swampy character.

All public land in California that was actually swampy enured to the State, September 28, 1850, and a subsequent disposition thereof by the Government, either by grant to a railroad company or sale to individuals, could not divest the State's title. The State had the right to present testimony as to the character of each tract mentioned in the published notice of the investigation in this case.

Lands within the boundaries of an alleged Mexican or Spanish grant which was sub judice at the time the Secretary of the Interior ordered a withdrawal of lands along the route of the road are not embraced in the grant to the company.

Lands lying within the claimed limits of a Spanish or Mexican grant, which was subsequently adjudged by the Courts to be invalid, inured to the State under the Swamp Grant of September 28, 1850; provided, the State proves they were swampy at the date of the grant.

Property is the right and interest which a man has in lands and chattels to the exclusion of others.

The second clause in the 4th section of the Act of July 23d, 1866, confirms absolutely to the State all lands not in a state of reservation which had been segregated by her prior to July 23, 1866, if the State surveys were made on the rectangular system, whether the lands had been surveyed by the United States or not, or whether they were swampy or dry lands, provided no valid pre-emption or homestead claim or other right had been acquired by any settler as provided in the first section of the Act.