specific declarations of law. No legal propositions applicable to the case as made were formulated and presented to the court for its decision. Therefore, under a familiar rule often repeated by this court, the general finding and the conclusions of the court embodied in it are not open to review, and the scope of our inquiry is limited to such rulings of the court in the progress of the trial as were excepted to. There is but one such ruling set forth in the assignments of error. It is that the trial court erred in admitting an entry from an abstract of title and in limiting the probative effect thereof to the fact that the parties claimed under a common source of title. The contention is that, since the court used an entry in defendant's abstract to ascertain that the parties claimed under a common source of title, it should have received in evidence all the succeeding entries as substantive proof of defendant's ownership. A rule of the Circuit Court for the district in which the cause was tried requires parties to an action for the recovery of real property to file copies of their abstracts of title; the purpose being to enable the court to learn whether they trace title from a common source, and, if so, to limit the proofs to subsequent conveyances and transactions. It was designed to narrow the issues, to facilitate the progress of the trial, and to avoid incumbering the record with unnecessary evidence. It was not intended that compliance with the rule should enable the proponent of an abstract to secure the use of it in its entirety as affirmative evidence for himself. It is as though counsel arose at the beginning of the trial and orally stated the history of their clients' titles as claimed by them to exist, beginning with the ownership of the sovereign, and ending with that of the litigants, and the court after comparison discovered a common point from which the chains of title commenced to diverge, and thereupon dispensed with proof of anterior conveyances. What was done at the trial was in effect a joinder by the parties in a judicial admission of a common source of title. The rule that an admission is to be taken in its entirety without exclusion of any part that tends to limit, modify, or destroy its purport (Insurance Co. v. Newton, 22 Wall. 32, 22 L. Ed. 793) is not applicable, since there is no contention here that the remaining entries in defendant's abstract qualified in any degree the fact that the divergent lines of title had a common source.

We may say with respect to another contention that we do not construe the judgment that was rendered as affecting the one-fourth interest in the property which was conceded to have been conveyed by the plaintiff to the defendant before the commencement of the action. The judgment is affirmed.

STANCLIFT et al. v. FOX et al.

(Circuit Court of Appeals, Eighth Circuit. March 30, 1907.)

No. 2,402.

INDIANS-INDIAN LANDS-TOWN SITES IN CREEK NATION-SECRETARY OF IN

TERIOR-DECISION-REVIEW.

Act Cong. March 1, 1901, c. 676, 31 Stat. 861, ratifying the agreement between the United States and the Creek tribe in the Indian Territory, authorized the Secretary of the Interior to survey and lay out town sites in the Creek Nation, the limits thereof to be so established as to best

subserve the then present needs and the reasonable prospective growth of such towns, and declared that all things necessary to be done, not otherwise specially provided for, should be done under the authority and direction of such Secretary. Held, that the extent of each site was to be measured by the then present needs and the reasonable prospective growth of the town, that the decision of this question of fact.was intrusted to the Secretary of the Interior, whose action was to be final, and that, if not intended to be conclusive, it is at least controlling, in the absence of a clear, unequivocal, and convincing showing that it was wrong and was induced by fraud or imposition.

Appeal from the United States Court of Appeals in the Indian Territory.

For opinion below, see 90 S. W. 614.

Francis R. Brennan, for appellants.

Preston C. West, F. L. Mars, and J. J. Mars, for appellees.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District Judge.

VAN DEVANTER, Circuit Judge. The controversy presented by the record in this case relates to the title to certain lands in the Creek Nation in the Indian Territory, and grows out of the designation of the exterior limits of a town site, by the Secretary of the Interior, under the following provisions of section 10 of an agreement between the United States and the Creek tribe, which was ratified by Congress March 1, 1901, and became effective May 25, 1901 (Act March 1, 1901, c. 676, 31 Stat. 861; Proclamation June 25, 1901, 32 Stat. 1971):

*

*

"All towns in the Creek Nation having a present population of two hundred or more shall, and all others may, be surveyed, laid out, and appraised (by) the Secretary of the Interior under rules and regulations to be prescribed by him, in such manner as will best subserve the then present needs and the reasonable prospective growth of such towns. "The Secretary of the Interior, where in his judgment the public interests will be thereby subserved, may permit the authorities of any town at the expense of the town, to survey, lay out, and plat the site thereof, subject to his supervision and approval, as in other instances.

*

*

"It shall not be required that the townsite limits established in the course of the platting and disposing of town lots and the corporate limits of the town, if incorporated, shall be identical or coextensive, but such townsite limits and corporate limits shall be so established as to best subserve the then present needs and the reasonable prospective growth of the town, as the same shall appear at the times when such limits are respectively established. Provided further, that the exterior limits of all townsites shall be designated and fixed at the earliest practicable time under rules and regulations prescribed by the Secretary of the Interior.

"Upon the recommendation of the Commission to the Five Civilized Tribes, the Secretary of the Interior is hereby authorized at any time before allotment to set aside and reserve from allotment any lands *, not exceeding one hundred and sixty acres in any one tract, at such stations as are or shall be established in conformity with law on the line of any railroad which shall be constructed or be in process of construction *, and this irrespective of the population of such townsite at the time. Such townsites shall be surveyed. laid out, and platted, and the lands therein disposed of for the benefit of the tribe in the manner herein prescribed for other townsites."

*

These provisions, in so far as they apply to towns having a population of 200 or more, had been in force in the Creek Nation since May 31, 1900, by reason of their incorporation in the Indian appro

priation act of that date. Act May 31, 1900, c. 598, 31 Stat. 221, 237. The agreement contained specific provisions respecting the appraisement and sale, under the supervision of the Secretary of the Interior, of the lots in town sites surveyed and laid out thereunder, certain preferences being accorded, in that connection, to owners of improvements and others, and also directed that all lands of the tribe, except as therein otherwise provided, should be allotted in severalty, by the Commission to the Five Civilized Tribes, so as to give to each member of the tribe an equal share of the whole in value. The gravamen of the appellant's complaint is that in surveying and laying out the town site of Bixby, an unincorporated town having a population of 200 or more, the Secretary of the Interior restricted the town site to 80 acres and declined to include therein the lands now in controversy; in other words, that, although the Secretary found and concluded, as his act necessarily imports, that the then present needs and the reasonable prospective growth of the town did not require that these lands be included in the town site, the fact was actually otherwise.

The title and ownership of the Creek lands, including those now in controversy, being in the tribe at that time, whether or not any of them should be surveyed, laid out, and disposed of as town sites, and, if so, to what extent and through what agency this should be done, were matters which it was competent to determine in the agreement. In keeping with the prior legislation of Congress, it was therein determined that some of these lands, and particularly those upon which there were towns having a present population of 200 or more, should be surveyed, laid out, and disposed of as town sites; that the extent of each site should be measured by the then present needs and the reasonable prospective growth of the town; and that the decision of this question of fact should be intrusted to the Secretary of the Interior. The agreement contains no indication of an intent that his decision should be subject to re-examination elsewhere, and, considering the nature of the question, the direction. that the exterior limits of each site should be designated "at the earliest practicable time," and the evident purpose that the allotment of adjacent lands should proceed expeditiously, we think it was intended to make his decision final. United States ex rel. v. Hitchcock (decided March 4, 1907) 27 Sup. Ct. 423, 51 L. Ed. And it is not without significance in this connection that one of the concluding provisions of the agreement declares:

"All things necessary to carrying into effect this agreement, not otherwise herein specifically provided for, shall be done under authority and direction of the Secretary of the Interior."

As measurably relevant, we quote from Cragin v. Powell, 128 U. S. 691, 697, 9 Sup. Ct. 203, 206, 32 L. Ed. 566, as follows:

"The mistakes and abuses which have crept into the official surveys of the public domain form a fruitful theme of complaint in the political branches of the government. The correction of these mistakes and abuses has not been delegated to the judiciary."

But, if the decision of the Secretary of the Interior be not so conclusive as we have stated, it is at least controlling in the absence of a clear, unequivocal, and convincing showing that it was wrong and

was induced by fraud or imposition. The appellant's complaint does not contain such a showing. It makes liberal use of such words as "fraudulent," "arbitrary," and "injurious," but the matters properly stated are not sufficient, in our opinion, to sustain the pleader's conclusion. There is no statement that any of the lands in controversy, which comprise 80 acres, were used for town purposes, and what is said in respect of their occupancy and state of improvement is not only indefinite, but is largely in the nature of an explanation of why "houses were not erected thereon" and why they were not used for purposes of business or residence. And, while much is said about the prospective growth of the town, it does not tend with any certainty to show that the Secretary's decision was wrong in point of fact.

It is alleged that this decision was in reality made by one of the clerks in the Department of the Interior, and that its approval by the Secretary was a mere perfunctory act without any personal consideration of the merits. But of this it is sufficient to observe that in De Cambra v. Rogers, 189 U. S. 119, 23 Sup. Ct. 519, 47 L. Ed. 734, it was said of a like allegation:

"It is hardly necessary to say that, when a decision has been made by the Secretary of the Interior, courts will not entertain an inquiry as to the extent of his investigation and knowledge of the points decided, or as to the methods by which he reached his determination."

Our conclusion is that the Court of Appeals in the Indian Territory rightly held that the complaint was properly dismissed (Capitol Townsite Co. v. Fox [Ind. T.] 90 S. W. 614), and its decree is accordingly affirmed.

AMERICAN BRAKE SHOE & FOUNDRY CO. v. RAILWAY MA

TERIALS CO. et al.

(Circuit Court of Appeals, Seventh Circuit. January 22, 1907.)

No. 1,262.

PATENTS-INvention-Brake Shoe.

The Herron patent, No. 423,998, for a brake shoe of the composite type, having wrought-iron bars imbedded in the casting for the purpose of strengthening it, is void for lack of invention. The composite shoe itself was old in the art, and the method of re-enforcing castings by imbedding wrought-iron strips therein was old in the casting art, and practiced generally by foundrymen. Also composite brake shoes had previously been strengthened by others by applying a wrought-iron backing plate and by strips placed on the sides, and the transference of such plates or strips to the middle of the shoe by the well-known foundry method did not involve invention nor accomplish any new practical result.

Appeal from the Circuit Court of the United States for the Eastern Division of the Northern District of Illinois.

For opinion below, see 143 Fed. 540.

Appellant's bill for alleged infringement of patent No. 423,998, issued March 25, 1890, to Herron, for improvements in brake shoes, was dismissed for want of equity on the ground of lack of invention. Claim 2 was the basis of the suit: "(2) In a brake-shoe, the shoe, A, having blocks, B, of steel set in its face below the surface, and the

strips, C, of wrought iron, substantially as shown and described, and for the purpose specified."

The drawings and description, explanatory.of the claim, are as follows:

"This invention relates to brake shoes, more especially relating to the class of shoes known as 'composite' shoes, the object being to provide a shoe that will be strong, durable, and afford the greatest possible frictional contact with the hardened tire of the wheel, and one that will fit itself to the circumferential curve of said wheel, and that will not be open to the defects heretofore found in composite shoes. The details whereby these ends are accomplished are hereinafter fully described, and the parts claimed as new pointed out in the claims.

"In the accompanying drawings, Fig. 1 is a perspective view showing the contact-face and one edge and an end of the shoe. Fig. 2 is a vertical crosssection of Fig. 1 on the line x, y. Fig. 3 is a longitudinal section on the line a, b, Fig. 1 showing the cross-sectional contours.

"In the figures like reference marks indicate corresponding parts in the several figures.

"The blocks, B, are of crucible steel and are of cross-sectional form, as best shown in Fig. 3, being set in the face of the main body of said portion A an eighth to a quarter of an inch, said distance to be governed by the wearing qualities of the iron of which said part A is made, the prominence of the parts of the body, A, projecting above the blocks, B, being for the purpose of offering a surface for contact with the wheel which shall be easily worn down to the curve of the circumferential surface of the wheel and afford as soon as possible a steady bearing for the shoe on said circumferential surface. Projections, D, enter corresponding grooves in the hard pieces, B, and form a rib strengthening the shoe and obviating any possibility of lateral displacement of the parts, B. Strips or curved rods, C, of wrought-iron are cast into the main body of the shoe for the purpose of strengthening the entire mass, it being in such a position that any stress tending to break the shoe in cross-section will exert a pulling tension on said strip, C, and a crushing strain on the body of the shoe, thus applying the wrought-iron of the one and the cast-iron of the other to the exact force it is best adapted to successfully withstand. These strips may be as many in number as desired. The heavier the work to be done, the more intense is the strain to be overcome or guarded against, and the more strength to be supplied by these strips, C." The prior art was illustrated by the German publication of Von Waldegg in 1871, and by the following patents: 8,255, reissue, McConway; 9,329, reis