BANCROFT V. HAMBLY.
ing had by both parties, the plaintiff in error cannot now deny that understanding, to the loss or injury of the defendant in error. Storrs v. Barker, 6 Johns. Ch. 166; Ooal & Ice Oo.v.'1'he Ottumwa Belle, 78 Fed. 643; Illinois Trust & Savings Bank v. City of Arkansas City, 40 L. So App. 257, 22 C. O. A. 171, and 76 Fed. 271; Smiley v. Barker, 55 U. S. App. 125, 28 O. C. A. 9, and 83 Fed. fi84; v. O'Connor, 52 Ga. 183; Cunningham v. Patrick, 186 )10. H21, 37 S. W. 817. "The vital principle [of estoppel in pais] is that he who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to 108s or injury by disappointing the expedations upon which he acted. Such a change of position is sternlJ' forbidden. It involves fraud and falsehood, and the law abhors both." Dickerson v. Colgrove, 100 U. S. 578; Fetter, Eq. §§ 21,22. "Equitable estoppel, in the modern sense. aI'ises from the conduct of a party, using that word in its broadest meaning as including his spoken or written words. his positive acts, and his silence or negative omission to do anything. Its foundation is justice and good conscience." 2 p.om. Eq. Jur. § 802. "The doctrine seems to be established bv authority that the conduct and ad· missions of a party operate against him i;} the nature of an estoppel, wherever, in good conscience and honest d('aling, he ought not to be permitted to gainsay them. Thus negligence becomes constructive fraud, although, strictly speaking, the adual intention to mislead or deceive may be wanting, and the party may be innocent. if innocence and negligence may be deemed compatible. In such cases the maxim is justly applied to him that, when one of two innoeent per'sons must suffer, he shall suffer who by his own acts oc'Casioned the confidence and loss." Stevens v. Dennett, 51 N. H. 324. In view of these established principles of law, which appear to be applicable to the conduct of the .plaintiff in error in this transadion, we are of the opinion that the money refunded by the government and collected by the plaintiff in error belonged of right to the defendant in error. rrhe judgment of the lower court is therefore a:lli.rmed.
BAKcnOFT v. HAMBLY.
(Circuit Court of Appeals, Ninth Circuit. No. 492.
:\Iay 15, 1800.)
In an action on a contract of employment to recover salary for services rendered thereunder. in which the complaint alleges performance ,on the part of the employe, proof of such is essential, and the plaintift'. cannot recover on evidence that "the employe was prevented from per" forming the contract by defendant, it being shown that he did not in fact render any services thereunder.
COURTS-FOLLOWING STATE DECISIONS-CONSTHUCTION OF CON-
A federal court is not at libE'rty to accept as conclusive the construction of a contract by the supreme court of a state, where sueh eonstruction in no manner depE'nds on any state law. and is not pleaded as creating an estoppel betweE'n the parties; but is required to exercise its independent judgment, giving to the state decision, however, due weight as a precedent.
94 FEDERAL REPORTER.
3. PARTNERSIIIP-CONTRACT CREATING-CONSTRUCTION. B., who was the owner of a publisbing company, entere<t Into a contract witb S., by which he sold and assigned to him an interest intbe business, reciting that it was shortly to be incorporated, in consideration of past services, and that S. should devote his services to the company for 10 years. The contract provided that the interest of S. 8hould be forfeited and revert to B. if S. should fail to perform his part of the contract, and that one-half of it should revert in case of his death ,vithin five years. It further provided that the salary of S. should be Ii, certain sum per month. Held, that the contract created a partnership, and contemplated the payment of the salary of S. by the firm, or by the corporation when formed, and that an action to recover such salary could not be maintained against B. individually.
In Error to the Circuit Court of the United States for the Northern District of California. Page, McCutcheon & Eells, for plaintiff in error. Reddy, Campbell & Metson, for defendant in error. Before GILBERT and ROSS, Circuit Judges,and HAWLEY, Dis: trict Judge. ROSS, Circuit Judge. This is one of a series of actions brought against the plaintiff in error to recover salary at the rate of $350 per month, alleged to be due One N. J. Stone under and by virtue of a contract entered into on the 20th day of August, 1886, between him and the plaintiff in error. All of the actions were brought in the superior court of the state of California. In the first, final judgment pasl'!ed for the plaintiff, and was a,ffirmed by the supreme court of the state in 112 Cal. 6'53, 44 Pac. 1069. In the second, judgment was rendered for the plaintiff in the trial court, from which no appeal appears to have been taken. The third is the present action, and was brought in the superior court of the city and county of San Francisco; state of California, by the defendant in error, as the assignee of Stone, who, the complaint alleges, assigned to the defendant in error on June 13, 1896; all his right, title, and interest in and to any money then due or to become due under the contract. On the petition o,f the defendant the case was transferred to the court below for trial. The contract, which is set forth in hrec verba in the complaint, is as follows:
"This agreement, made in San Francisco. California, by H. H. Bancroft and N. J. Stone, witnesseth: That in consideration Of the valuableserYices done by the said Stone in conducting the publicatiolt and sale of the historical works of the said Bancroft, the business formerly being conducted as the Bancroft's Works Department of A. L. Bancroft & Co., but now being done and to be incorporated under the laws of the state of California as the History Compan3', the said Bancroft hereby sells and assigns to the said Stone a onetenth interest in the said History Company, plates. paper, stock. money, outstanding accounts, or other property of said company, upon the following conditions: The said N. J, Stone is to devote his whole time and ber'lt energies, so far as his health and strength shall permit,. for a period of not less than ten years from the date of this agreement, to the publication and sale of the historfeal works of H. H. Bancroft, and of such other works, and conduct such oth21' business as may'be from time to time taken up and entered into by said History Compan3';and the said Stone agrees not to enter into or engage in, directly or indirectly, any other mercantile or manufacturing· business. or in any other business 01' occupation, which shall in any wise absorb his mind and i'tl'ength,or interfere with his interest or efforts on behalf of the said Histor;y
Company, during the said term of ten years. Upon the incorporation of the History Company, one-tenth of the whole number of shares shall be jssued and delivered to the said N. J. Stone, but, should the said Stone fail in any wise to carry out this agreement, or any part thereof, in its full letter and spirit, then the said one-tenth interest in the said History Company shall be forfeited, and revert to the said H. H. Bancroft: provided, and it is distinctly understood and agreed, that, in case of the death of the said N. J. Stone before the expiration of five years from the date of this agreement, the said Stone having fulfilled all the conditions of this agreement up to that time, then one-half of the said onetenth interest of the said Stone in the History Company shall go to his heirs. and be their property unconditionally; and, in the event of the death of the said Stone at any time after the expiration of five years from the date of this agreement, the terms hereof having been fully complied with, then the whole of the said one-tenth interest shall belong to his heirs· unconditionally. The salary of the said Stone shall be $350 a month. The copyright of the said histo'rical works belongs exclusively to the said Bancroft, and shall be fifty cents a volume for the History and Diaz, and twenty cents on the Little History of :Mexico. "Signed at San Francisco, the twentieth day of August, 1886. "H. H. Bancroft. "N. J. Stone. "Witness: W. N. Hartwell."
The present action is for salary at the rate of $350 a month, alleged to be due to the plaintiff, as assignee of Stone, for a period extending from April 1, 1894, to August 2/). 1896, the complaint alleging performance by Stone of all the terms and conditions of the contract during that period of time, and the refusal of the defendant to pay therefor. To the complaint the defendant interposed a demurrer on the ground that it does not state facts sufficient to constitute a cause of action, which demurrer was overruled by the court below. 83 Fed. 444. An answer was then filed by the defendant to the action, in which the defendant denied that during the period covered by the complaint Stone performed any of the terms or conditions prescribed by the contract sued on, and also averred that during that period he had been engaged in a business prohibited by the terms of the agreement. At the trial, Stone admitted, among other things, that he did not perform any service whatever for either the defendant, Bancroft, or the History Company, from April 1, 1894, to August 20, 1896, but testified that on April 2, 1894, he served Bancroft with a written notice, wherein he notified the latter that he was still willing and ready, as theretofore, to comply with the terms and con· ditions of the agreement, a copy of which was annexed to the notice; and that he would at all times thereafter be willing to perform all of the acts required of him by its terms. At the time Stone served this notice, he asked for a reply. Bancroft answered that he would look it over at his leisure, but never did, in fact, make any reply to the notice, nor did Stone see him, or have any further communication with him, either orally or in writing, during the time covered by the present action. Stone further testified, in substance, that he held himself in readiness to perform his duties under the contract; that he never was discharged by Bancroft or the History Company; that he never withdrew from the agreement, and that he was not permitted to do any work thereunder during the time covered. by the present action; that during this period he went to the office of the History Company from time to time, sometimes as often as
once a week. Stone' further testified that in the month of tTune, 1894, he undertook the San Francisco agency of a compound called the "Fitz Alcohol Cure," which was fuanufactured in the East, and consigned to him for sale, the conduct of which business he bas continued iil San Francisco ever since. This, being substantially the e\'idence in the case, we are of opinion that the court below should have granted the defendant's motion for an instruction to the jury to render a verdict in favor of the defendant; for, conceding the sufficiency of the complaint to constitute a cause of action in favor of the plaintiff, one of its constituent elements was the aHeged performance by Stone of all of the terms and conditions of the agreement from April 1, 1894, to August 20, 1896,-the period of time covered by the action. Such performance by Stone being one of the essential elements of the alleged cause of action, proof thereof was, of equally essential. Saunders v. Short, 30 C. C. A. 462, 86 Fed. 225, 229; Vinegar Co. v. Burns, 44 Neb. 21, 62 X W. 301. That Stone did not perform any service under the contract from April 1, 1894, to August 20; 1896, was distinctly testified by himself, and there is nothing in the evidence to the contrary. Why he did not do so need not be inquired, in view of the pleadings in the. case. 'The complaint does nM count upon prevention by; Bancroft of performance on Stone's part' of his obligations under the contraCt; nor is it an action for damages sustained by the plaintiff by reason of any, such prevention, or of any other breach :of the contract by Bancroft. On the contrary, it is, as has been shown, an action on the contract to recover the amount of salary, for a certain periOd, therein' provided for, based entirely on the performance by Stone of all onns obligations thereunder, but whi'challegation of performance the proof wholly fails to sustain. But, abo'Veand beyond this, we are of opinion that the contract upon which the action is based, rightly ,construed, did not confer upon Stone the right tohold'Bancroft·· .primarily and individually lilllble fortb!IDonthly salary thereby'provided for. We are aware that department 1 of thesnpreme court; of California held to the contrary in:':the case already cited; out: that the opinion in that case did not have the'unaninious approval of that court is 'shown by the dissent; of the i?hief jUstice from the' order denying the hearing of the the court: in bank. HZ'Cal. 660, 44 Pac. ,1069. In construiilgthe contract inl question, Mr. Justice: Garoutte, in the opinion in that case, said:
, I I
the only f,ilidnterpretationto be given I to thIs contract is that Bancroft :was to pay Stone three hUndred and fifty dollars per month for his services. There is but a single theory that can lJe advanced looking tOll con· trary CO)lstructloI\, and t1:lat is to the effect ,that this contract beween Bancroft and Stone constituted thdn partners (Stone possessing a one-tenth interest in the and that, ':consequently, the salary of said :Stone was to be paid by'rnhe partnership. 'Upon a mete cursory 'examination of the contract, it is pIal,lyevident that not, and was never intended tQ, create a partnershfp between thes,e twq, parties.. ,Xhis ,is patent ,frow. the fact that it wlls contemplated: in the. writing itself Hiat in the near future the History Company was to be It is doubly apparent when we consider that the one"tenth interest in the property ,given by Bancroft to'Stone failed to vest any absolute title in him, but was dependent up()n conditions, and H,able to be
forfeited. and revert to Bancroft. at any moment. That Stone had no such interest in this business as to constitute him a partner is further made plain when we look at the provision of the contract wherein it is expressly stipulated that, if Stone should die within fiye years from its date. then only one-half of the one-tenth interest should pass to his heirs. To hold these parties partners under the agreement would make Stone's salary dependent upon the profits of the business. There is nothing contained therein to indicate any such intention, and it is certainly not so provided. We conclude that the contract should be construed as a contract of hiring of Stone by Bancroft at an agreed price of three hundred and fifty dollars per month. There are no other matters of law raised by the demurrer of sufficient importance to demand our attention. Within a few months after the aforesaid agreement was entered into, the History Company was incorporated with a capital stock of one hundred shares, ten of which were issued to Stone, in pursuance of the agreement, and he was thereupon elected vice president of the corporation. Prior to the agreement with Stone and the subsequent incorporation, Bancroft Was the sole owner of the business, conducting it under the name of the Flistory Company. For several years after incorporation the business progressed amicably and prosperously, and then differences arose. No salary was forthcoming, and this litigation resulted. It is now insisted by appellant that during the fourteen months covered by this litigation respondent is not entitled to any salary, for the reason that he performed no service. It must be borne in mind that this action is not one for damages based ·upon the breach of a contract of hiring, but.is an action based upon the contract itself, upon an express promise to pay, and in this regard the complaint was advisedly framed; for the evidence of both the plaintiff and defendant expressly shows that he (Stone) was never discharged from his employment, and, if he was hired for a term of ten years at a monthly salary, until he was disc.barged by his employer, or voluntarily gave up the employment, we know of no legal reason why his employer's jJromise to pay is Dot binding and enforceable in an action at law."
We are precluded from treating either the judgment in the case just referred to or the judgment. of the trial court in the second action, above referred to, as an estoppel,for the reason that neither judgment is in any manner pleaded as such, and both were admitted in evidence for the express imd only purpose of showing performance by Stone of his part of the contract up to the time of the commencement of the present action. But, as a precedent, the opinion of the supreme court of the state in the case cited is entitled, as are all of its opinions, to great respect. The present case, however, involves the interpretation of a contract not in any way dependent upon the construction of any state law, and, that being so, we are not at liberty to follow the decision of that court construing the contract if such construction does not meet with our approval, but are bound to exercise our independent judgment. I.ane v. Vick, 3 How. 464; \Vatson v. Tarpley, 18 How. 517; Carpenter v. Insurance Co., 16 Pet. 495; Amis v. Smith, Id. 303; Butz v. City of Muscatine, 8 Wall. 575; Oates v. Bank, 100 U. S. 239; Railroad Co. v. Kational Bank, 102 U. S. 14; Liverpool & G. W. Steam Co. v. Phrenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469. The contract in question shows upon its face that the business and property constituting the subject of it, and which was then owned and conducted by Bancroft, was then carried on by him under the name of the History Company. In that business and property Bancroft, by the contract, conveyed to Stone an undivided one-tenth interest; the language being: "The said Bancroft hereby sells and assigns to the said Stone a one-tenth interest in the said History Company, plates, paper, stock, money, out-
standing accounts, or other property of said company." Then follow the conditions upon which the transfer of that interest is made. The contract expressly recites that the business which had formerly been conducted as the "Bancroft's Works Department of A. L. Ban· croft & Co." and then being conducted as the "History Company," and in the conducting of which Stone had rendered valuable services, was shortly to be incorporated under the latter name, pursuant to the laws of the state of California. The consideration for the conveyance of the one-tenth interest was, as shown by the contract, not only the "valuable services" theretofore rendered by Stone "in conducting the publication and sale of the historical works of the said Bancroft," but also his services for at least the next succeeding 10 years; not only in the publication and sale of the historical works of Bancroft, but also in conducting such other business as should from time to time be taken up and entered into by the History Company; for the conveyance of theone-tenth interest to Stone WllB by the contract expressly declared to be made upon the conditions that "the said N. J. Stone is to devote his whole time and best energies, so far. fJ;S his health and strength shall permi-&, for a period of not less than 10 years from the date of this agreement, to the publication and sale of the historical works of H. H. Bancroft, and of such other works, and conduct such other business, as may be from time to time taken up and entered into by said History Company; and the said Stone agrees not to enter into or engage in, directly or indirectly, any other mercantile or manufacturing business, or in any other business or occupation, which shall in any wise absorb his mind and strength, or interfere with his interest or efforts on behalf of the said History Company, during the said term of ten years. Upcm the incorporation of the. History Company one-tenth of the whole number of shares shall be issued and delivered to the said N. J. Stone, but, should the said Stone fail in any wise to carry out this agreement, or any part thereof, in its full letter and spirit, then the said one-tenth interest in the said History Company shall be forfeited, and revert to the said H. H. Bancroft: provided, and it is distinctly J. understood and agreed, that, in CllBe of the death of the said Stone before the expiration of five years from the date of this agreement, the said Stone having fulfilled all the conditions of this agreement up to that time, then one-half of the said one-tenth interest of the said Stone in the History Company shall go to his heirs, and be their property unconditionally; and, in the event of the death of the said Stone at any time after the expiration of five from the date of this agreement, the terlllil hereof having been fully com· plied with, then the whole of the said one-tenth interest shall belong to his heirs unconditionally." Can there be any doubt that when this contract was executed Stone thereby became the owner of an undivided one-tenth of the business and property of the History Company,subject only to the conditions therein stated, and that Bancroft remained the owner of the other nine-tenths? We think not. From that time until the incorporation of the company, was not Stone entitled, by virtue of the contract, to one-tenth of the profits, if any, of the business? Undoubtedly so. And when the company
was incorporated, and Stone's proportion of its Btock issued to him, did he not continue to be entitled to his share of the profits of the busineSB? Undoubtedly so. The 10-years services that Stone, by the contract, agreed to render were not to be rendered to Bancroft individually, but, as is expressly declared in the contract itself, in the publication and sale of the hiBtorical works of Bancroft, and of such other works and of such other business "as may be from time to time entered into by said History Company." The obligation imposed by the contract on Stone not to engage in any other businefjs or occupation was limited to such other business or occupation as would "interfere with his interest or efforts on behalf of the said History Company." The services thus required by the contract to be performed by Stone were, therefore, confined entire,ly to the business of the History Company, in which he had an undivided oneinterest, subject to the conditionB accompanying its conveyance to him. His joint interest in the business entitled him to his proportionate share of the profits, the ascertainment of which necessarily depended upon the previous ascertainment and pa.}'ment of the expenses of conducting the busineSB. There is certainl.}' nothing in the contract indicating any intention on the part of either of the parties thereto that Stone should be exempt from any part of the expenses incurred in conducting the business in the profits of which he was legally anfl justly entitled to share. It would be extraordinary if there had been. By a statute of California partnership defined to be "the aSBociation of two or more persons for purposes of carrying on business together and dividing the profits between them." Civ. Code Cal. § 2395. No express stipulation for dividing the pr()fit and loss is necessary, as that is an incident to the proBecution of the joint business. Pars. Cont. p. 57; Bloomfield v. Buchanan, 13 Or. 108, 8 Pac. 912; Richards v. Grinnell, 63 Iowa, 44, 18 N. W. 668. It seems to us impossible to successfully deny that from the time of the execution of the contract in question to the time of the incorporation of the History Company the respective parties to the contract were entitled and bound to share in the profit and loss of the business of the company in proportion to their respective interests, for, beyond question, they owned the pooperty and business jointly, and were conducting it jointly. They were therefore partners therein. The fact that the respective parties contemplated a speedy incorporation of the company, which intention was expressly stated in the contract, in no way altered the character that the law attached to the agreement under which they meanwhile conducted the business. Nor did the conditions specified in the contract, upon the happening of which there would be a forfeiture on the part of Stone of the whole or a part of his interest in the business of the company, affect the relationship of the parties while it existed. Hills v. Bailey, 27 Vt. 548; Petrakion v. ..c\rbeely (Com. PI.) .26 N. Y. Supp. 731; Campbell v. Sherman, 55 Hun, 609, 8 N. Y. Supp. 630. As by the execution of the contract Stone became a partner in the busineBs, he would not, under the well-settled law of partnership, have been entitled to any salary for services rendered the firm, unleSB expressly provided for. In the present case, as by the
agreemenfStone wltSlillide the manager of the business, to devote time to it, and was prohibited' from en'gaging in any 'other business or occupatio:II that would inter, fete. \\Vilh his efforts on behalf' of the History C-oll1paIiy, it was provided that he should receive a sala,ry of $350 ainonth for his services. Such a provision is not at all uncommon in partnerships. A similar provision appears in the case of Weaver v. Upton, 29 N. C. 458, which case is, in principle, exactly similar to the present one. There, Weaver and Upton had of one McKensie a tract of land for'three years, in which to mine for gold, and the 'lessees had enteredinto possession. Upton WM to work 20,and Weaver 4, hands, "bearing a proportinnable part of the expense attached thereto." The agreement between them, further provided that "the said Upton, of the first, part, bargains and agrees to give me, the said Weaver, of the second part, four hundred and fifty dollars to manage the business, which I agree to manage acc&rding to the best of my judgment."Thecourt said:
"It seems to 'us that tbe agreement 'was one of partnershiP; and, the law being well settIe'd that the'lI;cting and business partner is never entitled to claim any pay of. the, firm for his services, unless he stipulates for it in the articles of co-partnership or otherwise, the pll,rties, t)lerefore agreed that Weaver ,t):le busbless, and Upton, the other, partner, agreed to give him $450 'to Wlillage the business.' Weaver was ,to bear his proportion of the expense of managIng and working the mine. 'The, salary pf the sUtJerintendent was a part of the expense of the firm. And the'firmought,: according tothetrue construction of the articles, to,beaJ,' this expensejp proportion to the number of hands each partner worked in the mi!).e. The ,words, 'the::;aid Upton bargains and agrees t(l gIve me, the Said four' hUndred and fifty dollars to manage thebnsib:ess,' only denote the assent of Upton that Weaver, although ,a part'ner, shoUld be 'Paid for hls·services $400.00. The parties were stipulating concerntQ,gtMjpartnership business ,and the 1:E!rllls on which it was,to be carried on; and, among others, that Upton bargained, alld agreed to let Weaver have $450.00 for his services that year. It seems to us that it Would be against justice and right to 'construe the covenant to be· an' agreement by Upton that he would pay that sum out of his own pocket. We think that it was an item in the expense the firm, and that the)irm should pay it."
It will be noticed that in just cited the contract recited that Upton agreed to give Weaver $450 to manage the business, but the court held-and, we think, very properly held-that, as the salary of the saperintendent was a part 'of the expense of the firm, the firm ought, according to the true construction of the articles of agreement, to be required to pay it. In the contract here in question is no statement that Bancroft agrees to pay Stone a salary of $350 a month for the services he is thereby required to render in conducting the business of the History Company, but the provision theSliid Stone shall be $350 is, a.s has been seen, that "the a month,"-manifestly to be paid out Of the business, to which both parties interested should contribute in proportion to their respective interests, and for which both of the parties interested in the business would be in like proportions, if the; services, provided for were rendered, and the businesS was unable to pay it; and this, not only while the business was .conducted' as a partnership, but also after it was conducted as a corporation' of the state of California, for, as stockholders therein, 'eac'h of the' parties in ibterest was not only
GARRARD V. SII,VER PEAK MINES.
entitled to his proportion of the profits of the corporate property and business, but liable as well for his proportion of the corporate obligations. We entertain no doubt that, if Bancroft prevented, directly or indirectly, Stone from performing the services in and about the business of the History Company provided for on his part by the contract, or committed any other breach thereof to Stone's injury, the latter would have his action against Bancroft for such damages as he sustained. But such, as has been Bhown, is not the present action. The judgment is reverBed, and cause remanded to the court below, with directions to dismiss the action at the plaintiff's cost.
GARRARD v. SILYIDR PEAK MINES et at lnirPllit (;ourt of Appeals, Ninth Circuit. No. 439.
PUBLIC LANDS-MINERAL CHARACTER-SALINE r.ANDS.
May 8, 1899.)
Saline lands are mineral, within the meaning of a provision of an act of congress reserving mineral lands from a grant.
SAME-GRANT TO STATE-EFFECT OF HESEHVATION OF
By Act Congo June 16, 1880 (21 Stat. 287), congress granted to the state of Nevada 2,()()(),OOO acres of land, to be selected by the state from "unappropriated, nonmineral, public lands." By an act of the state legislature of March 3,1887 (St. 1887, p. 102), the state expressly disclaimed on behalf of itself and its grantees any rights in any mineral lands which had been or might be selected under such grant, and further proyided that its conveyances should give no rights as against persons in actual adverse possession. Held, tqat th.e state acquired no rights in land selected under the grant which was in fact known mineral land, containing both salt and the precious metals, which had been appropriated in 1865 under an act for the location of land containing salt, surveyed, and the location recorded. and which had ever since been in the actual possession of the locator and his grantees, who had erected a quartz mill thereon at a cost of over $50,000, and that a patent executed by the state therefor to an applicant to purchase who had actual knowledge of all such facts was void. Such patent, being without authority of law, and prohibited by the law of the state which Issued it, is subject to collateral attack in an action at law.
ll. SAME-PATENTS BY S'rATE-COLLATERAL ATTACK.
In Error to the Circuit Court of the United States for the District of Nevada. Reddy, Campbell & for plaintiff in error. M. A. Murphy, for defendant in error. Before GILBERT, ROSS, and MORROW, Circuit Judges. ROSS, Oircuit Judge. This was an action of ejectment, in which the defendants prevailed in the court below. 82 Fed. 578. The plaintiff bas brought the case here by writ of error. The subject of the act.ion is a certain 40-acre tract of land situate in Esmeralda county, :Nev., described in the complaint as the N. E. t of the N. E. i of section 22, township 2 S., range 39 E., :Mt. Diablo base and meridian., together with a lot of mill tailings and slimes containing gold and silver, which the plaintiff in his complaint alleges was upon