brought the action in that court, where the requisite jurisdictional facts appear in the evidence embodied in his bill of exceptions.1

In Error to the Circuit Court of the United States for the Southern District of Florida.

John G. Reardon, for appellant.

H. L. Anderson, for appellees.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. This was an action to recover the possession of personal property, and was brought by Achille Laurent against William M. Brooks and Sue G. Brooks. On Laurent's death, the case was prosecuted in the name of L. Paul Jumeau, as his administrator.

1. The plaintiff gave bond under the statute, and secured possession of the property, and retained the possession. During the progress of the trial, the plaintiff, being in possession of the property sued for, offered to take a nonsuit. The court denied this motion, and the case proceeded to verdict and judgment for the defendants. The judgment for the defendants is for the recovery of the property sued for, then in possession of the plaintiff, and also against the plaintiff and the sureties on his replevin bond for the value of the property as ascertained by the verdict. It is assigned as error that the plaintiff was not allowed to take a nonsuit. If he had taken a nonsuit, the statutes governing the case provide for a judgment just like the one rendered on the verdict, for the property and its value, either judgment to be enforced at the option of the defendant. The statutes make the defendant's claim, where the plaintiff obtains and holds the property, practically a cross action. We do not think the court erred in denying the nonsuit. Rev. St. Fla. §§ 1724, 1725. 2. The declaration and pleadings failed to show the jurisdiction of the circuit court. The plaintiff, who had brought the suit, moved the court to dismiss the case for want of jurisdiction. The court overruled the motion, and made an order allowing the defendants to amend the pleadings so as to show that the plaintiff was a citizen of France, and the defendants citizens of Florida. But this amendment does not appear to have been made. The plaintiff, however, who brought the suit in the federal court, cures this defect in the record by the bill of exceptions which he has taken. It appears from the evidence, made part of the record by the bill of exceptions, that Laurent was a citizen of France, and William M. Brooks and Sue G. Brooks citizens of Florida. If the order made by the court to amend the pleadings had been complied with, the jurisdiction of the court would have appeared in the most formal way. The jurisdictional fact as to citizenship of the parties appearing in the bill of exceptions is, we think, sufficient to sustain the jurisdiction. Denny v. Pironi, 141 U. S. 121, 11 Sup. Ct. 966, 35 L. Ed. 657. The judgment of the circuit court is affirmed.

1 Jurisdiction of circuit court of appeals in general, see note to Emigration Co. v. Gallegos, 32 C. C. A. 475.

(109 Fed. 354.)

KIRWAN, United States Surveyor General, et al. v. MURPHY et al. (Circuit Court of Appeals, Eighth Circuit. May 20, 1901.)

No. 1,526.

PUBLIC LANDS-PATENTS-Estoppel.

Where the United States surveyed and platted land about a lake, and then patented the tracts according to its plats, which showed these tracts bounded by the lake, and made no attempt to correct its survey until after complainants had purchased of the patentees for full value, in reliance on the plats and patents of the government, the United States cannot correct the survey and revoke its grants.

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

W. F. Bailey (Robert G. Evans and John R. Vanderlip, on the brief), for appellants.

M. H. Stanford, for appellees.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

SANBORN, Circuit Judge. The facts presented by the record upon the final hearing of this case do not differ essentially from those presented on the appeal from the order granting the injunction. Kirwan v. Murphy, 28 C. C. A. 348, 83 Fed. 272, 286, 289; Murphy v. Kirwan (C. C.) 103 Fed. 104. The United States surveyed and platted the land about Cedar Lake, and then patented the tracts which the complainants now own according to its plats, which showed that these tracts extended to, and were bounded by, the lake. It made no attempt to correct its survey, and gave no warning that it claimed it to be erroneous, until after the complainants nad purchased of its patentees, and had paid full value for the land, on the theory that it extended to, and bordered upon, the lake, and in reliance upon the plats and patents of the government, which disclosed this fact. It is too late now for the United States to correct this survey, and thereby to revoke its grants, after innocent purchasers have bought of its patentees in reliance upon them. Our views upon the questions presented here have been so completely expressed in the opinions in Kirwan v. Murphy, 28 C. C. A. 348, 83 Fed. 275, and Murphy v. Kirwan (C. C.) 103 Fed. 104, that another opinion would be but a repetition of the rules and reasoning there set forth. The decree below is accordingly affirmed on the authority of those opinions and of Railroad Co. v. Schurmeier, 74 U. S. 272, 286, 289, 19 L. Ed. 74; Hardin v. Jordan, 140 U. S. 371, 380, 11 Sup. Ct. 808, 35 L. Ed. 428; Mitchell v. Smale, 140 U. S. 406, 414, 11 Sup. Ct. 819, 35 L. Ed. 442; Cragin v. Powell, 128 U. S. 691, 696, 697, 699, 9 Sup. Ct. 203, 32 L. Ed. 566; McIver's Lessee v. Walker, 9 Cranch, 173-177, 3 L. Ed. 694; St. Paul, S. & T. F. R. Co. v. First Division St. P. & P. R. Co., 26 Minn. 31, 34, 49 N. W. 303; and U. S. v. Winona & St. P. R. Co., 15 C. C. A. 96, 67 Fed. 948, 960-964.

(109 Fed. 355.)

WHITE et al. v. BRUCE, Judge.

(Circuit Court of Appeals, Fifth Circuit. May 28, 1901.)

No. 1,051.

1. APPEAL-ALLOWANCE-POWER TO REFUSE.

The fact that the circuit court of appeals cannot entertain an appeal or writ of error until the same has been duly allowed shows conclusively that the right to an appeal or writ of error is not an unqualified one, and conclusively implies the power and duty to refuse applications therefor in some cases.

2. SAME-ORDERS ENTERED in ObediencE TO MANDATE.

Where a circuit court of appeals on a writ of error has affirmed the judgment of a circuit court, condemned the plaintiff in error and the sureties on the writ of error bond to pay the costs, and issued its mandate in the usual form, commanding "that such execution and proceedings be had in said cause as, according to right and justice and the laws of the United States, ought to be had, the said writ of error notwithstanding," and the circuit court, in substantial compliance with such mandate, has awarded process against the defendant and also against the sureties in the bond, its order is, in effect, the judgment of the appellate court, and cannot be taken to that court for review. In such case the circuit court has no discretion to do otherwise than to obey the command of the mandate, and cannot entertain a defense there sought to be set up by the sureties, based on the alleged invalidity of the original judgment or a claim that the bond never became operative as a supersedeas, and its refusal to do so gives the sureties no right to the allowance of a second writ of error.

On Petition for Writ of Mandamus.

For the better understanding of this case, reference is made to the opinions of this court in the case of McGehee v. McCarley, as reported in 33 C. C. A. 629, 91 Fed. 462, and 103 Fed. 55.1 For the sake of greater accuracy, and at the risk of appearing to incumber our opinion overmuch by so extended a statement of the matter now before us, we make the following large extracts from the printed record:

"The United States of America, to the Honorable John Bruce, United States Judge for the Northern District of Alabama, Greeting: Whereas, on the 20th day of April, 1901, in the matter of the petition of Milton Humes and Addison White, as sureties on the writ of error bond in the case of Charles M. McGhee and Henry Fink, as receivers, against A. J. McCarley, as administrator of the estate of Zuma Allred, deceased, the following order was made by the Honorable Don A. Pardee, United States circuit judge: "This petition may be filed, and thereupon let an order issue directing the Honorable John Bruce, district judge for the Northern district of Alabama, to show cause before the circuit court of appeals on Monday, 29th day of April, at 11 a. m., or as soon thereafter as counsel can be heard, why the writ of mandamus as herein prayed for should not be granted, and in the meantime the clerk of the circuit court for the Northern district of Alabama is directed to withhold execution against the petitioners in the case of McCarley, administrator, against McGhee and Fink, receivers. April 20, 1901. Don A. Pardee, Circuit Judge,'-you are therefore commanded that you be and appear before the circuit court of appeals on Monday, 29th day of April, 1901, at 11 a. m., or as soon thereafter as counsel may be heard, to show cause, if any there be, why the writ of mandamus as prayed for in said petition should not be granted. A copy of said petition is hereto an

1 44 C. C. A. 252.

nexed and made a part of this rule. Witness the Honorable Melville W. Fuller, chief justice of the United States, and the seal of our United States circuit court of appeals hereto affixed, at the city of New Orleans, this April 20, 1901. [Seal.] J. M. McKee, Clerk United States Circuit Court of Appeals, Fifth Circuit."

"Petition for Mandamus.

"United States Circuit Court of Appeals for the Fifth Circuit.

"To the Honorable Judges of Said Court: Your petitioners, Milton Humes and Addison White, sureties on the writ of error bond in the case of Charles M. McGhee and Henry Fink, as receivers of the Memphis & Charleston Railroad Company, against A. J. McCarley, as administrator of the estate of Zuma Allred, deceased, respectfully represent that heretofore, to wit, on the 22d day of May, 1900, this honorable court affirmed the judgment of the United States circuit court in and for the Northern division of the Northern district of Alabama. That at the January term of said court, 1901, the said McCarley, as administrator, presented the mandate of this court in said cause, and asked for a summary judgment against the sureties on said writ of error bond, and thereupon, without hearing the sureties on the said bond, in defense of the motion for summary judgment, the court entered the same. During the term of the court at which said judgment was rendered Milton Humes and Addison White, sureties on the said bond, made a motion in the circuit court of the United States in and for the Northern division of the Northern district of Alabama, in said cause of A. J. McCarley, as administrator of the estate of Zuma Allred, deceased, versus McGhee and Fink, as receivers of the Memphis & Charleston Railroad Company (which said motion was regularly continued to the April term of said court), wherein they alleged, in substance, in said motion, that said bond was without consideration and void, because at the date of the rendition of the judgment in said circuit court of the United States aforesaid, against said receivers, they had been discharged from their receivership, and that the said bond was further void because no copy of the writ of error had been lodged in the clerk's office, where the record remained, for the adverse party to said writ of error aforesaid. The record of the case of Charles M. McGhee and Henry Fink, as receivers, against said A. J. McCarley, as administrator of Zuma Allred, deceased, No. 763 on the docket of this court, is, as appears by the certificate of the court below, a full, true, and complete transcript of the record, and said record does not disclose that the copy of the writ of error was lodged in the court below for the adverse party. The motion made by the said sureties in said writ of error bond, to vacate the judgment as against them, was overruled and disallowed at the April term of said court, 1901, and thereupon the said Milton Humes and Addison White, sureties as aforesaid, prepared a petition for a writ of error, assignments of error, writ of error and copy thereof, and citation, and a notification to Charles M. McGhee and Henry Fink, receivers, to come in and join in the prosecution of said writ, and, upon their failure to do so, said Honorable John Bruce was asked to enter an order severing said McGhee and Fink, receivers as aforesaid. These papers were presented to the Honorable John Bruce, judge of the district court in and for the Northern division of the Northern district of Alabama, on the 18th day of April, 1901. The said Honorable John Bruce declined and refused to allow the prosecution of the writ of error from the rendition of the judgment against said sureties on the said writ of error bond on the 19th day of January, 1901. Your petitioners further allege that said writ of error bond, upon which said judgment was rendered against them, did not operate as a supersedeas bond, because of the failure to lodge said copy of said writ of error in the said cause No. 763 in the clerk's office, where the record remained, for the adverse party. The premises considered, your petitioners pray that the Honorable John Bruce, judge as aforesaid, be made a party defendant to this petition, and that an alternative writ of mandamus be issued in this cause requiring the said Honorable John Bruce, judge of said circuit court, to show cause why he should not be required to grant the writ of error; and, upon the return thereof to this court, that this court make an order commanding and directing said Honorable John Bruce, judge as aforesaid, to allow the said writ of error so presented to him by said 48 C.C.A.-26

Milton Humes and Addison White, and that in the meantime, and pending the hearing of this petition, that said circuit court be required and directed to suspend the execution of said judgment against said Milton Humes and Addison White as sureties on the said bond. And petitioners pray for such other, further, and general relief as the facts and equities of the case may require. John H. Sheffey, Attorney for Petitioners."

"Return of Respondent to the Alternative Writ of Mandamus. "United States Circuit Court of Appeals for the Fifth Circuit, at New Orleans, La. Milton Humes and Addison White, Petitioners, vs. John Bruce, Judge of United States Circuit and District Courts for Northern District of Alabama, Respondent.

"To the Honorable Circuit Court of Appeals for the Fifth Circuit of the United States: The respondent, the said John Bruce, judge of the United States circuit and district courts for the Northern district of Alabama, appearing by counsel before this honorable court, hereby makes his return, and for cause why the peremptory writ of mandamus, as prayed for in the petition of said Milton Humes and Addison White, should not be issued, respectfully shows as follows:

"That the mandate of this honorable circuit court of appeals in the case of Charles M. McGhee and Henry Fink, receivers, plaintiffs in error, against A. J. McCarley, administrator, defendant in error, reciting the judgment of this court of May 22, 1900, affirming in all things the judgment previously rendered in said case at the April term, 1898, of the United States circuit court for the Northern district of Alabama, at Huntsville, at which term this respondent presided, was presented in open court and filed January 18, 1901, by counsel for said McCarley, administrator, at the adjourned January term, 1901, of said United States circuit court for the Northern district of Alabama, at Huntsville, which term was being held by Hon. Charles Swayne, assigned to that duty because of the physical disability of respondent. Said mandate commanded the judges holding said United States circuit court for the Northern district of Alabama to have such further proceedings in said case as according to right and justice and the laws of the United States ought to be had, the writ of error which had been sued out in said case by Charles M. McGhee and Henry Fink, as receivers of the Memphis & Charleston Railroad Company, notwithstanding. On the same day, January 18, 1901, there was also filed by counsel for said McCarley, administrator, an application for an order carrying into effect and executing said mandate against the defendants, McGhee and Fink, as receivers, and Milton Humes and Addison White, the sureties on their writ of error bond, which application was in words and figures as follows:

66.6

* Comes the plaintiff, A. J. McCarley, as the administrator of Zuma Allred, deceased, and shows to the court that Henry Fink and Charles M. McGhee, as receivers of the Memphis & Charleston Railroad Company, the defendants in the above-styled case, prayed and obtained a writ of error from the judgment and proceedings had in this court, touching said case, to the circuit court of appeals for the Fifth circuit of the United States, all of which fully appears from the records of this court; that the said defendants as principals, together with Milton Humes and Addison White as sureties, did on the 10th day of August, 1898, execute a writ of error bond, in manner and form as required by law in such cases, in the sum of two thousand and eight hundred dollars, payable to the plaintiff, A. J. McCarley, as administrator of the estate of Zuma Allred, deceased; that said bond, together with the sureties thereto, was approved by Honorable John Bruce, judge of the said court. Said bond is here referred to and made a part of this application. Plaintiff further shows unto this court that said writ of error in the above-styled case has been duly considered, passed upon, and in all things determined and affirmed by the honorable circuit court of appeals for the Fifth circuit of the United States, as is shown by the mandate of said circuit court of appeals which has been filed in this court on this the 18th day of January, 1901, and is here now presented to this court as a part of this application. Plaintiff prays that, in accordance with the judgment and mandate of said circuit court of appeals, this court order an execution, in