¶1.(dissenting):
¶2I dissent. The patent received was presumably in accordance with the terms of sale under which the claimant purchased. There has never been a suggestion to the contrary. The claimant is not •entitled to a repayment of the consideration by .reason of any contract, express or implied. Before the passage of the act (Laws of 1900, chap. 767) the claimant was wholly unable to establish a claim against the State, even if the State failed to interpose a defense thereto. The act, therefore, was not for the purpose of avoiding a legal, but unconscionable defense, but as construed by a majority of this court it, in effect, is to establish and allow a private claim against the State where none had theretofore existed. It is much more than an act to avoid a technical defense or cure some irregularity in procedure. I am opposed to a determination in favor of the authority of the Legislature to create and allow a claim against the State, whenever it is thought that there is some general equity, although not amounting to an enforcibje equity therefor. Under the act as construed the Court of Claims is a mere accountant.
¶3Parker, P. J., concurred.
¶4Judgment reversed on law and facts and new trial granted, with -costs of appeal to appellant.