applicable; and thereafter, when the Code of Civil Procedure for Alaska was adopted by the act of June 6, 1900, it was taken from the laws of Oregon, both as to the provisions regulating the action of ejectment, and prescribing the interest in real estate upon which the action may be brought, and the statute of limitations applicable to such actions. In Keith v. Cheeny, 1 Or. 285, it was held that the donee of a land claim, having received a donation certificate thereto, could maintain ejectment against one who showed naked possession, with no color of title; and in Rader v. Allen, 27 Or. 344 (decided in 1895) 41 Pac. 154, it was held that, after the performance of all the requirements of the laws and regulations for the acquirement of a patent to a mining claim, the locator, having thus acquired a vested right in the land and a legal estate therein, might maintain ejectment to recover its possession. Said the court of such a mining claim after the performance of those conditions, "It then ceases to become a part of the public domain." But the rule of the federal courts that the statute of limitations does not begin to run against a grantee of the United States until the issuance of the patent does not rest alone upon the ground that ejectment cannot be maintained in those courts by such an entryman before the patent issues. In Redfield v. Parks, 132 U. S. 239, 10 Sup. Ct. 83, 33 L. Ed. 327, it was said that until the title passes from the government there is no title adverse to the entryman. In Gibson v. Chouteau, 13 Wall. 92, 100, 20 L. Ed. 534, the court said:

"The same principle which forbids any state legislation interfering with the power of Congress to dispose of the public property of the United States, also forbids any legislation depriving the grantees of the United States of the possession and enjoyment of the property granted by reason of any delay in the transfer of the title after the initiation of proceedings for its acquisition. The consummation of the title is not a matter which the grantees can control, but one which rests entirely with the government. With the legal title, when transferred, goes the right to possess and enjoy the land, and it would amount to a denial of the power of disposal in Congress if these benefits, which should follow upon the acquisition of that title, could be forfeited because they were not asserted before that title was issued."

In Bagnell v. Broderick, 13 Pet. 450, 10 L. Ed. 235, the court recognized the power of the states to pass laws authorizing purchasers of lands from the United States to prosecute actions of ejectment upon certificates of purchase, but denied "that the states have any power to declare certificates of purchase of equal dignity with a patent. Congress alone can give them such effect." The court further said:

"Congress has the sole power to declare the dignity and effect of titles emanating from the United States, and the whole legislation of the government in reference to the public lands declares the patent to be the superior and conclusive evidence of legal title. Until it issues, the fee is in the government, which by the patent passes to the grantee, and he is entitled to recover the possession in ejectment."

In Sparks v. Pierce, 115 U. S. 408, 413, 6 Sup. Ct. 102, 105, 29 L. Ed. 428, the court said of the right of a mineral claimant :

"Mere occupancy of the public lands and improvements thereon give no vested right therein as against the United States, and consequently not against any purchaser from them."

Referring to the decisions of the Supreme Court of Oregon, we find that in that state it has been held that possession cannot be adverse

to an entryman under the general land laws so long as the legal title remains in the United States. In Joy v. Stump, 14 Or. 361, 12 Pac. 929, it was said that possession, in order to be adverse, must be exclusive. In Altschul v. O'Neill, 35 Or. 202, 58 Pac. 95-a case decided before the enactment of the Code of Alaska-upon a careful and wellconsidered review of the authorities, it was held that to constitute adverse possession there must be, among other requisites, an entry under claim of right hostile to the true owner and to the world, and that an occupant of land cannot hold adversely while he admits the title to be in the United States; thus adopting the doctrine of the United States courts in Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230, 37 L. Ed. 1195, Henshaw v. Bissell, 18 Wall. 255, 21 L. Ed. 835, Bracken v. Union Pacific Ry. Co., 75 Fed. 347, 21 C. C. A. 387, and Pillow v. Roberts, 13 How. 472, 14 L. Ed. 228, in which it was said that possession, in order to be adverse, must be adverse to all the world. We are compelled to hold, therefore, that there was no possession of the disputed premises adverse to the plaintiff in error prior to the date of the issuance of the patent to its mining claim. If there was no adverse possession, there was no disseisin, and until disseisin the statute of limitations of Alaska could not begin to run. In United States v. Arredondo, 6 Pet. 743, 8 L. Ed. 547, the court said:

"The law deems every man to be in the legal seisin and possession of land to which he has a perfect and complete title. This seisin and possession is coextensive with his right, and continues till he is ousted thereof by an actual adverse possession."

The ruling of the court below in holding that the possession of the defendant in error was adverse prior to the time of the issuance of the patent was based upon the consideration that the laws regulating the disposal of mineral land are essentially different from those that control the disposal of agricultural lands, and confer upon the locator of a mineral claim an estate of such a nature as to render inapplicable thereto the doctrine that the statute of limitations begins to run only from the time of t issuance of the patent. It is true that the locator of a mineral claim has, prior to the issuance of the final receiver's receipt, a broader control over his claim, and a higher estate therein than an entryman of agricultural land. But after full compliance with all of the conditions upon which a patent is authorized to be issued, there is no perceptible difference in the two estates. In cases where the question has been presented for adjudication, the courts have uniformly held that the statute of limitations does not begin to run against the claimant of a mining claim before his patent issues. Nessler v. Bigelow, 60 Cal. 98; South End Mining Co. v. Tinney et al., 22 Nev. 221, 38 Pac. 401; King v. Thomas, 6 Mont. 409, 12 Pac. 865; Weibold v. Davis, 7 Mont. 107, 14 Pac. 865; Mayer v. Carothers, 14 Mont. 274, 36 Pac. 182; Clark v. Barnard, 15 Mont. 176, 38 Pac. 834; Miser v. O'Shea, 37 Or. 231, 62 Pac. 491, 82 Am. St. Rep. 751.

It follows that the judgment of the court below must be reversed and the cause remanded, with instruction to enter a judgment for the plaintiff in error.

INTERNATIONAL TEXT-BOOK CO. v. HEARTT.

(Circuit Court of Appeals, Fourth Circuit. February 21, 1905.)

No. 558.

1. FEDERAL COURTS-REMOVAL OF CAUSE-APPEARANCE.

The filing of a petition for removal of a cause to the proper Circuit Court of the United States in a state court, where the action is pending, amounts to a special appearance by defendant in the state court only, and does not, therefore, prevent it, after removal, from moving in the federal court to dismiss the action for want of jurisdiction of defendant's person, either in the state or federal court.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appearance, §§ 50, 89; vol. 42, Cent. Dig. Removal of Causes, § 238.]

2. SAME-PROCESS-SERVICE.

Where two corporations originally joined as defendants were separately organized, had different officials, and their interests were dissimilar, service of process on an individual as agent of one of the corporations, which he did not represent in any manner, was insufficient to confer jurisdiction over such corporation or the other corporate defendant, which he did in fact represent.

3. SAME-CORPORATIONS-REPORTS OF AGENT SLANDER-CORPORATE LIABIL

ITY.

Where, in an action against a corporation for slanderous words spoken by its agent with reference to an alleged embezzlement by plaintiff, it appeared that the slander was uttered by the agent after he had left plaintiff's presence and gone to another locality, where he was not engaged in the performance of any duty under the terms of his employment, which was expressly limited by contract, and alleged in the com plaint as only extending to the "checking up of accounts," the corporation was not liable therefor.

It is the duty of the court to direct a verdict for either party where the evidence is undisputed, or the proof is of such conclusive character that the court, in the exercise of its judicial discretion, would be compelled to set aside a verdict if one should be returned in opposition to the one directed.

In Error to the Circuit Court of the United States for the Eastern District of North Carolina.

John W. Hinsdale and David C. Harrington, for plaintiff in error. J. C. L. Harris (Armistead Jones and William B. Jones, on the briefs), for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and BRAWLEY, District Judge.

GOFF, Circuit Judge. The defendant in error instituted this suit at law in the superior court of Wake county, N. C., against the International Text-Book Company, proprietors of the International Correspondence Schools; the Colliery Engineer Company, proprietors of the International Correspondence Schools; the International Correspondence Schools; the International Text-Book Company; and the Colliery Engineer Company-to recover damages for slanderous words said to have been spoken by one J. Stearns, who was alleged to have been an agent of said defendants.

136 F.-9

A special appearance was entered in the superior court of Wake county by counsel for the defendants for the sole purpose of removing the case from that court to the United States Circuit Court for the Eastern District of North Carolina, the question of the proper service of the summons being expressly reserved. After the filing of the record in the Circuit Court of the United States, a special appearance was entered by the defendants for the sole purpose of moving to dismiss the suit.

The Colliery Engineer Company was incorporated in 1890 as a printing and publishing company, a part of its business being to teach by correspondence through the mails of the United States. In September, 1901, the charter of that company was duly amended, and its name was changed to the International Text-Book Company, and during the same month the International Correspondence Schools was incorporated. These corporations were chartered and organized under the provisions of the laws of the state of Pennsylvania, the principal office of each being in the city of Scranton, in that state. The defendant in error, the plaintiff below, in his original complaint alleged that he was one of the agents of the defendants at Raleigh, N. C., having been appointed in the month of May, 1901, and relieved in August of that year. He also alleged that one J. Stearns was a duly appointed supervisor of the Washington district of said defendants, which embraced the state of North Carolina, and that as such official it was his duty, among other things, to check up the accounts of plaintiff, and that as such agent, and while in the discharge of his duty as such, intending to injure and defame the plaintiff, did, in the presence and hearing of various persons, falsely, maliciously, and slanderously utter and publish of and concerning said plaintiff certain false, slanderous, and defamatory words, to his great damage. The original and a copy of the summons were placed in the hands of an officer for service, and he made return that he served the same by "reading it and delivering a copy of it to W. R. Stark, agent of the International Correspondence Schools." The defendants appeared specially in the court below, and moved to dismiss the suit because the summons had not been served on Stark as an agent of the International Text-Book Company, but on him as the agent of the International Correspondence Schools, and, he not being the agent of said lastmentioned company, neither defendant was served. The motion was overruled, and such action of the court is one of the assignments of error presented for our consideration. The defendants then entered a general appearance, and filed a demurrer to the complaint, which the court overruled, at the same time entering an order directing that the complaint be amended. The plaintiff below then filed an amended complaint against the International Text-Book Company alone, and in due time the case came on for trial, and was submitted to a jury, which found in favor of the plaintiff, on which verdict judgment was rendered. The other assignments of error relate to the admission and exclusion of evidence and to instructions given and refused by the court during the progress of the trial.

The court below, in refusing to dismiss because of want of service of the process, seems to have reached that conclusion because of the fact that the defendants had appeared in the superior court of Wake county for the purpose of filing the petition for removal. This, we think, was a mistake. Whatever confusion there may have been concerning this point heretofore, it is now well understood that the filing by a defendant, in an action brought in a state court, of a petition for removal to the proper Circuit Court of the United States, does not prevent such defendant, after the case has been removed, from moving in the federal court to dismiss it for want of jurisdiction of the person of such defendant in either the state or federal court. In other words, the filing of a petition for removal does not amount to a general appearance, but to a special appearance only. Goldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517; Wabash Western Railway v. Brow, 164 U. S. 271, 17 Sup. Ct. 126, 41 L. Ed. 431. The record discloses the fact that the only process issued in this action was served by reading the same and delivering a copy thereof to W. R. Stark, agent of the International Correspondence Schools. The record shows that the amended complaint was filed against the International Text-Book Company, owners of the Colliery Engineer Company. It was stated in an affidavit of the plaintiff below that he had been appointed solicitor collector of the International Correspondence Schools, which corporation it was quite evident is entirely distinct from the Colliery Engineer Company, which, in 1901, changed its name to the International Text-Book Company. It may be true. that there was some contractual relationship existing between the International Text-Book Company and the International Correspondence Schools, but that did not dispense with the necessity of summoning the International Text-Book Company in a controversy concerning which both of said corporations were interested. They were separately organized, had different officials, and dissimilar interests. The testimony renders it entirely clear that W. R. Stark was not the agent of the International Correspondence Schools, but that he was the agent of the International Text-Book Company, and yet he was served with process only as the agent of the International Correspondence Schools. It follows, therefore, that, as the summons was not served on Stark as the agent of the International Text-Book Company, but on him as the agent. of the International Correspondence Schools-he not being the agent of the last-mentioned company-neither company was served. We think that the motion to dismiss for want of service of process should have been granted.

We deem it best to refer to another of the assignments of error, in order that the direction with which we remand this case may be fully understood. At the conclusion of the evidence, and before the jury retired, the defendant moved the court to direct a verdict in its favor, which motion was overruled. In disposing of the questions raised by this action of the court, it will not be necessary to set forth all of the testimony before the jury, for a statement showing what was not proven will be sufficient to show whether