HOLLAND ". HYDE.
(Oircuit Oo'Urt,D.Oregon. .April 23, 1890.)
lI'BDERALOotT.RTS--JURISDIOTJON-PATENT OJ' LANU-CANOELLATION.
This court has no jurisdiction of a suit broughtby citizens of the state of Orl:lgon, against a .citizen of the District of Columbia, to cancel a United States pateutto land to which plaintiffs claim they are entitled to have a patent, wherll tbe groun\l for canceling is fraud alleged to have been committed by the defendBut in 'proC1trlng the issuance of the patent to ODe of the plaintiffs, and where the defendant is claiming the land under conveyances purporting to have been executed by the plaintiffs. Such a suit involves no federal question, and the parties are not citizens of different states. Moreover, there is no equity in the bilL (Bytlabus by the Oourt.)
Patrick HoUand, plaintiff, in pro. per'.
Joseph Simon, for defendant.
HANFORD, J. The demurr&' to the bill in this case was submitted without argument on the part of the plaintiffs. I have not, after careful consideration, been able to find any ground upon which the case Can be maintained in this court. Upon the face of the bill, it appears that the plaintiffs are citizens of the state of Oregon, and'the defendant is a citizen of the District of Columbia. The case, therefore, is not one between citizens of different states, nor one of which this court can take jurisdiction by reason Of the diverse citizenship of the parties. This proposition has been so often decided, and so long maintained, in the national courts, that it is now entitled to rest as settled law. The object of the suit, as shown by the statements .and prayer of the bill, is to set aside a United States patent for a tract of land, not on the ground of any error or misconstruction oflaw, but solely on the ground of a fraud on the part of the defendant, (and other persons not identified,) in procuring the issuance of the patent to one of the plaintiffs. The only issues tendered by the bill are issues of fact; hence the case is not one arising under the constitution or laws or any treaty of the United States, and it is not, by reason of the subject-matter thereof, within the jurisdiction of the court. The purpose to be accomplished by canceling the patent is not shown by any direct averment in the bill. The necessary inference, however, is that the plaintiffs seek to have one patent already issued to Patrick Holland, under a cash entry which they disclaim to have made or authorized, set aside, in order that they may obtain another patent, conveying to the same Patrick Holland the title to the same land under a cash entry of a date prior to the entry which they repudiate. Equity, to correct an error or give relief from the effects ofa fraud, does not proceed by soindirect a course as to cancel one conveyance in order that another may be substituted, so as to convey the same property, from the same grantor, to one having rights superior to the first grantee, but will, in a proper case, in the most direct manner, give effect to the original conveyance SO that it shall inure to the benev.41F.no.15-57
fit of the party rightfully entitled; much less will it do so vain a thing as to destroy one deed in order'that the same grantee may obtain another conveyance of the same title from the same grantor. The patent which the plaintiftij)'Wouldhave cancElled\gave them the land they claim to own. If this court had jurisdiction of this case, it could give them, np more; the.-efore the suit is useless. Therfl'is'n() equity in the bill, for that reason» as well as for want of jurisdiouOD.lsustain
MILLER ". CHICAGO,
(Circuit Court, W. D. Mi8,O'UJr!.,
In a suit against a railway company for malicious prosecution for arson, a delDuP'$rto,plailltitr's evidence will where it, appearll that a depot of such company wali burned by an incendiai"l; (hat the company's IligeI1t, upon inves, ,tigatiOtlj: was informed by several persODS of, circumstaDces, a strong , c1\ain ()f evidence againsttJ:!,e I11aip,titrj such agent before the company's local attorney, wb(), out 01 abundant' caution, placed, t,hem, before the County pr()l!Ccutdr j and 'that the latter examined all the persons concerned in furnishing the, informp.tion, and,. then advised the prosecution of ,pI,l\intitr, i.n which advice the company's attorlieyconcurred; , ' "'" In prosecutlon;:a:primafaciecase of good motive and of. probable cause is made out when it appear, that ,the pr0l!ecuting witness took the advice, of and also placed all thefliOts before the county attorney, who thereupon adv,illed theprQseoution." . SAME-COMMITM:gNT BY MA,l,1'JSTRA.'I,'B. , ' ,·· ", " The fact a magistrate, after a hearing, committed the &cous,ed, makes out a : prima facie case of probable cause for instituting the prosecution. . Leaving ()ut the pf an acoused person by a ma.llilltrat.:l lifter a hearing, the fact that the grand juryignored.the bill against him'makes out II prLmit fa..ew cas.e ()f want of probable cause for instituting the proSecution.
JrrALlarous PROSECUTION-PROBABLE CAUSE-ADVIOE
$Aim-BURDEN OF PROOPJ
pro,s,ecution, neutralize eliO,h.' other; and the p,l,Qintiff, to. sustain ,biS, oalle, must produce other evidence of ;m,alioe, and of want of probable for inlltituting the , prosecution.
graM jury hall then ignored the bUltbelle two facts, upon a SUlt for malicious
W\len a magiatl'l,lte, a,f,tera hearing,has committed au &coused Jlerson,and tM'
:' ,Where a criminal proseoution'was based largeiy: upon' infol'Qlation given by one ,person, but such informati()ll was corroq9rated by indepeI\dentcircuQlstancee, and' , also, as to part thereof, by other persons; it not incumbent ullon the prosecutIng witnesll, a stranger in the neighborliood,'to'make inquiriell as tqthe reputation , of such person fQr veracity. . 'I.' ,,' It Is not "incunibent upon:'a person .abotitto Institute II crimln'alprosecutton to alMIIl. " .' ,' ' '" '. '. JO to of the Inquire of him'whether he remai,n!ld , at home on the night the crime was committed, and whether his twO daughten ,would testify to that·etreot.: ;' " , " : ' ',.
,', Rev. St. Mo. f 2;1.00; provides, a,Qlong. qther thin,.. .tha,t wl:\en jury ignores a bill' 'against a' );lerson committed by a ma.g1strate, the COlltS 8hiill be' paid· by .juryshaUoertify that there was probable cause for' tbe prosec.1itiOI1·. the record only showlI that the bill. wall Ignored, ' lind judement was 8'literedagamst the IItate for' costll, it, must be presumed, i.n a sqch certl.dcate was made. .,
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