anterior to the recovery of the judgment, and the original defendant cannot plead that the judgment was obtained against him by fraud. 2 Saund. PI. & Ev. 255; Freem. Judgm. §§ 131-133, 150. In Cook v. Darling. 18 Pick. 393, in an action of debt on judgment, defendant pleaded that at the time of the commencement of the action he was not, and never had been, an inhabitant of the commonwealth, that he was not in the county in which it was said that he had been served, and that he had no notice of the action. Plaintiff demurred. The court say: "The judgment declared on is a domestic judgment of a court of common-law jurisdiction, to which writ of error lies to reverse the judgment, if erroneous; but, until reversed, it is conclusive. Demurrer sustained." .. In v. Skiff, Ohio St. 586, an offer being made to prove that the defendant at the time of entering judgment was but two years old; and that no service of process had been made.on him, the court said: "The record in this case is not silent. It recites that due notice had been given. This is a finding of the court, an<l, being shown by a record importing absolute verity, cannot be contradicted." See, also, Walker v. Cronkite, 40 Fed. Rep. 134; Turner v. Malone, 24 S. CJ 403. Notwithstanding that there are some cases to the contrary, the weight of authority is that the case of a feme covert is no· exception to the rule. Freem. Judgm. § 150, and cases ci.ted. 1 Especially is this true when the record nowhere discloses the fact that the defendant is a ferne covert. The is that, when a party has had his day in court, and has been afforded the opportunity of a defense, the judgment settles allquestiona made, or which could have been made, pertinent to the issues. Solol!g as such judgment remains unreversed, it is conclusive· . In this. proceeding, judgment must be for plaintiff. If the defendant wishes to secure her rights, she must attack the original judgment in some direct proceeding. Freem. J udgm. § 134.
LATTA '11. CLIFFORD
(Oircuit Oourt, D. Ooloraao. January, 1891.)
EnlOTimNT-'-LUUTATION OF AOTION-ADVERSE POSSESSION;·
.. ,Since there is no statute of Colorado pn the subject of title by adverse occupation, and. the Common law 88 it stood in. the fourth year of James 1. has been adopted, (Gen. St. Colo. p. 170,) 21 years' adverse possession of land Is no bar to ejectment ,by the hqlder of· the fee-simple title.
S·.L. Oaryenter, for plaintiff. E. B'fO'/.I1n6, for defendants.
411; Swayne v. i;on, 67.Pa. St. 441; and cases by Freeman in the sectIOns referred to. On the other side, see a list of oases quoted in 12 8& Eng. Eno.Law,p. 89, note 2.
LATTA 'D. CLIFFORD.
HALLETT, J. This is an action of ejectment, to which defendant Clifford answers that the cause of action did not accrue within 21 years. It appears that defendant intended to plead 21 years' p08session of the land in controversy, and plaintiff accepts the answer in that way, and demurs to it; so that the question for consideration is whether 21 years' adverse possession of lands in this state will bar an action for the possession by the holder of the fee-simple title. It is conceded that we have no act of assembly of such purport. As limiting actions for the recovery of real estate, we have only the act of 1874, which requires five years' payment of taxes under claim and color of title. Gen. St. p. 675. No such rule was recognized by the common Jaw. Angell, Lim. (6th Ed.) p.9. We have adopted the common law as it stood in the fourth year of James I. Gen. St. p. 170. The first act of the English parliament limiting real actions to 20 years was 21 James I. c. 16, some years after the time fixed by our act. Probably 32 Hen. VIII. c., 2, maybe invoked in a proper case as being part of the common law in the fourth year of James 1., but the later act was not in the common law at that time. The act of 21 James 1. has not been accepted as common law/in this country, as appears from numerous acts of the several states. 3 Washb. Real' Prop. (5th Ed.) p. 179, note. If the English act wasregarded as common law, the legislation of the several states would be in very different terms. There is a rule of common law relating to incorporeal hereditaments which is referreo.to in ,3 Washburn, as follows:
"The difference, howev;er, between them consists in this: that common law fixes what length of enjoyment of an incorporeal hereditament,like a way, a and the like,shall be deemed,sufficient evidence of an ownership of the right; while, as to the land, the period is fixed by statute, and is called a · limitation, ' beyond which no man may set uJ> a title adverse to the presumed title of him who has been permitted for that length of time to enjoy uninterrupted possession of the same. 'I'he theory of prescription was that the right cLimed must have been enjoyed beyond the period ofthememory of man, which for a long time in England went back to the time of Rich. ard I. But, to obviate the necessity of such an impossible proof, it became customary to rely upon the presumption of a deed having been given, and of its having been lost, after showing an enjoyment for a. sufficient length of time. The matter is regulated in England now by statute, (3 & 4 Wm. IV. 71,) and, in the United States, grants of incorporeal hereditaments are presumed upon proof of an adverse enjoyment which has been eXQlusive and uninterrupted for twenty years, or the period of time fixed by the respflctlve statutes of the several states as the limitation inrespecttolands
This rule relates to a different subject, and is applicable onlyin analogy to the statute of the state. In this state it could only be applied in connection with the five-years act of 1874, folthe reason that' there is no other, act of limitation as to realty. The failure of the assembly of this state to enact a law on the subject of title. by adverse occupation in connection with the act of 1874 is very significant. It shows that in the opinion of the assembly the time hasllot arrived for enacting a rule on that Sl1 bject This is a new country, in which' presumptions as to titles are as, yet not much needed· .The to the 'third answer will be ·sustained.
BIRD t1. UNITED STATES.
(District Court, D. Maine. January 22, 1891.)
j.. DISTRIOT ATTORNEy-FEES.
'Counsel fees allowed to a United States district attorney by the court cannot be reduced by the attorney general. . . A district attorney is not entitled to fees' for obtaining warrants for the removal of prisoners arrested in oire district and triable in another..
" . ,
But be is entitled to a per dilem for attendance before a commissioner to examine poor convicts applying for aischarge, and for attendance before a commissioner on days whep recognizances are taken, though no witnesses are examined.
George E. Bird, pro Isaac W. Dyer, U. S. Atty.
,:WEBB, J. ,This is a suit for the amount of sundry fees for official services as United States attorney. 1 and 2. The judge who presided at various trials onindictments which resulteliin verdicts of conviction allowed certain counsel fees to the petitioner under section 824 of the Revised Statutes. The attorney general cut off from the counsel fees approved by the court in all $80. This item is for preparing and presenting papers to procure warrants for the removal from'this district to the district where they were tdable ofaccuaed persons found and arrested here. For these services hi each casettn allowancEJor $1 Ois'demanded. fee forea<¥ of days for attendance before United CW,rlpliS1lionersin oa&es of persons charged with violations of law, .t $5 ,peboay" $35, disallowed by the accounting officers Upon the theory thntbusinei;s',thmsactedbeforethecommissioners on days when no witJiesseif were, examined does not warrant the charge of a per diem fee. i' 5.' 'A:ttEmdai'we an 33 :t\eparate days bE!fore commissioners, to examine section 10,,42 of the, Rev.ised Stll.tutB$.· ,This item was the hearing by striking o.ut from, the, :petition the'chatges of April-6,1888, for examination of Vead 28th, 111 ,the case of Mary C. Purcell; and that of May 2'9lb'; 'lricttsedrSarahT.Comier, leavirip;charges in 30 cllses, at $5 per dBydmeacb; $150. .'I.'hesecharges wereidisallowed, because it was held laccot[btingofficers. that no feelS provided for such services.: ,rA); The. petition wasd'u.rthet ilmendedby striking (jilt the whole of @s:1tem, consisting of'attol'bey,'sfees Qt $1:0:1n U. S.; Pltf.., v. HannahF. .lfre6man. and of 85 in' Sil/ln.e'V. Albion.,Drake et ala..· .
I find thll.t perfo:rmedall.the services specified iu this; petitian; that the disallowances stated were: made by the accounting officers upon examination!.ifif his aCcQunts,forwarded 'afteDduepresentation,