to the collision. At It more moderate rate, even from the time she was seen by the steamer, the latter would have gone clear; and the schooner must, for this reason, be held chargeable with contributory negligence. This fault is not charged against the schooner in the libel, but it appeared from her own testimony and upon own showing at the trial. There would seem to be 110 possibility, therefore, of her owners having been misled by this proof, or in any way surprised; nor is it certain that before the trial the schooner's speed was known to the owners of the steamer. The fault was alleged and argued on the final hearing. An amendment of the pleadings would, on motion, have been allowed, as was done in the case of Thc Oder, even upon appeal in the circuit after a final decree in the district court. 13 FED. REP. 272, 283. If the admiralty, like other courts, proceeds secundum allegata et probata, and requires proper pleadings to apprise the respective parties of what they are to meet, and to prevent surprise, yet where the facts fully appear without objection, and there is no dispute or question concerning them, it would be It perversion of justice to disregard them; and in such a case the pleadings should be deemed to be amended accordingly; the only qnestion is one of costs. See, also, Roscoe, Adm. JUl'. (2d. Ed.) 194; Order 27, § 1, under "Judicature Act." No satisfactory reason is given why the steamer's whistles were not heard, or, at all events, attended to, on board the schooner. The foghorn from Eaton's Neck could not be mistaken for them. The two seamen on the schooner seem to have heard these whistles during 15 minutes preceding the collision. Tbat was ample time to have procured and exhibited a torch-light, as required by statute; and in this respect the schooner would seem to have been guilty of inattention and negligence. The direction in which the seamen heard the whistles, about two points on their port bow, showed that the whistles could not have come from Eaton's Neck, and indicated some steamer near the schooner's course. It is impossible to say that the exhibition of such a torch-light would not have done any good; it was one of those occasions when every requirement of the rules should lJave been observed, and when, tbrough the obscuration of the colored lights by fog till the vessels were near eacb other, the display of a torch-light might, by its penetrating a few rods further through the fog, have enabled the steamer, notwithstanding her high speed, to ha\'e averted the collision. The Pennsyhania, 1!J Wall. 125; S. C. 12 FED. REP. 914; The Excelsior, ld. 203. Each vessel, therefore, must be held in fault. A reference may be taken to compute the damages to each, and judgment entered for ilalf the excess in favor of the greater sufferer. The lYorth Star, 106 U. S. 17; [8. C. 1 Sup. Ct. Rep. 41.J In the proceeding of the owners of the schooner to limit their liauility, they may take the usual order.
STATES V. WH1'rE.
UNITED STATES V. GEO. SAUE V. WU. SAME V. JOHN SAllIE V. TUTTLE
July 30, 1883.)
(Circuit Court, D. California.
The United States courts have jurisdiction to vacate a patent to lands, in a proper case, on the l:"round of fraud.
FItAUD IN PnOCUItING PATENT.
The frauds for which courts will set aside a pntent, granted oy tile United States in the regular course of proceedings in the land-ottice, are frauds extrinsic or collateral to the matter tried and determined, upon which the patent issued, and not fraud c9nslsting of perjury in the matter on which the determmation was made.
AND FALSE TESTIMONY.
Perjury and faloe testimony in the proceeding, by means of which a patent is secured by fraud, is not fraud extrinsic or collateral to the matter tried and determined in the land-ottice, within the meauing of the rule, and a patent will not llC set aside on tllat ground alone.
'Where no pecuniary injury to the United States is shown by the hill, anii it does not appear that there is any other right In the land against the government, whether a court of equily should set ashle a patent ootained on false testimony, if otherwise proper, qUeue. 5.
RETUH:K OF PUIWIlASB MONEY.
Where the United Stales tiles a hill to set aside a pntent, on the ground that it was obtained upon rabe te.,timony, it should at least oller to reLUl'n the purchase money paid by the patentee for the land.
When the United States comes into a court of equity asking equity like a private person, it should do equIty. Court-; of equity never enforce penalties or forfeitures.
.If Ihe Unitd oy sectIOn 22(j2 fal-e atlidavits, charged \\'111 be
Siales desires to enforce the penaltieq and forfeitures imposed of Ihe Hcviscd Statutes, for obtaining a patent to land upon it mnst do so by a pl'oper proceeding at iaw, where the party enlil.ed to a trial of the charge oy a jury.
In Equity. A. P. Van Dnzcr, fo: the United States. L. D. Latilller and Barclay Henley, for defendants. SAWYER, J. The first of these cases, U. S. v. Geo. E. JVhite, is a bill in equity to vacate a United States patent, issued to the defendant on the ground that it was obtained upon false and fraudulent affidavits and proofs, made under the pre-emption laws. It is alleged that on May 6, 1876, the defendant filed a declaratory statement under the pre-emption laws upon a quarter section of land v.l'i,l1o.7-3 t !