McCabe, 213 U. S. 207; In re Metropolitan Trust Co., 218 U. S. 312. Like any other ruling in the progress of the case, it will be regularly subject to appellate review after final judgment, and the authorized mode of obtaining such a review, the action being at law, is by a writ of error. Judicial Code, §§ 128, 238; Missouri Pacific Railway Co. v. Fitzgerald, 160 U. S. 556, 582.

The accustomed office of a writ of mandamus, when directed to a judicial officer, is to compel an exercise of existing jurisdiction, but not to control his decision. It does not lie to compel a reversal of a decision, either interlocutory or final, made in the exercise of a lawful jurisdiction, especially where in regular course the decision may be reviewed upon a writ of error or an appeal. Bank of Columbia v. Sweeny, 1 Pet. 567; Life and Fire Insurance Co. v. Adams, 9 Pet. 571, 602; Ex parte Taylor, 14 How. 3, 13; Ex parte Many, Id. 24; Ex parte Newman, 14 Wall. 152, 169; Ex parte Sawyer, 21 Wall. 235; Ex parte Flippin, 94 U. S. 348; Ex parte Loring, Id. 418; Ex parte Railway Co., 103 U. S. 794; Ex parte Baltimore & Ohio Railroad Co., 108 U. S. 566; American Construction Co. v. Jacksonville &c. Co., 148 U. S. 372, 379; In re Atlantic City Railroad, 164 U. S. 633; Ex parte Oklahoma, 220 U. S. 191, 209; Ex parte First National Bank, 228 U. S. 516. And this is true of a decision denying a motion to remand. Ex parte Hoard, 105 U. S. 578; In re Pollitz, 206 U. S. 323; Ex parte Nebraska, 209 U. S. 436; Ex parte Gruetter, 217 U. S. 586; Ex parte Harding, 219 U. S. 363. In the last case the subject was extensively considered and it was held that the writ of mandamus may not be used to correct alleged error in a refusal to remand where, after final judgment, the order may be reviewed upon a writ of error or an appeal. To that view we adhere, and therefore we are not here at liberty to consider the merits of the question involved in the District Court's ruling.

Rule discharged; petition dismissed.

Opinion of the Court.

TAYLOR v. ANDERSON.

234 U. S.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF OKLAHOMA.

No. 338. Submitted April 30, 1914.—Decided May 25, 1914.

Whether a case begun in a District Court is one arising under the Constitution or a law or treaty of the United States in the sense of the jurisdictional statute (Judicial Code, § 24), must be determined from what necessarily appears in the plaintiff's statement of his own claim in the declaration unaided by anything alleged in anticipation or avoidance of defenses which may be interposed by defendant. 197 Fed. Rep. 383, affirmed.

THE facts, which involve the jurisdiction of the District Court of the United States under § 24, Judicial Code, are stated in the opinion.

Mr. Napoleon B. Maxey for plaintiffs in error.

Mr. H. A. Ledbetter for defendants in error.

MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

The judgment here under review is one of dismissal for want of jurisdiction. The action was in ejectment. The petition alleged that the plaintiffs were owners in fee and entitled to the possession; that the defendants had forcibly taken possession and were wrongfully keeping the plaintiffs out of possession, and that the latter were damaged thereby in a sum named. Nothing more was required to state a good cause of action. Snyder's Comp. Laws Okla., §§ 5627, 6122; Joy v. St. Louis, 201 U. S. 332, 340. But the petition, going beyond what was required, alleged

with much detail that the defendants were asserting ownership in themselves under a certain deed and that it was void under the legislation of Congress restricting the alienation of lands allotted to the Choctaw and Chickasaw Indians. However essential or appropriate these allegations might have been in a bill in equity to cancel or annul the deed, they were neither essential nor appropriate in a petition in ejectment. Apparently, their purpose was to anticipate and avoid a defense which it was supposed the defendants would interpose, but, of course, it rested with the defendants to select their ground of defense, and it well might be that this one would not be interposed. In the orderly course, the plaintiffs were required to state their own case in the first instance and then to deal with the defendants' after it should be disclosed in the answer. Snyder's Comp. Laws, §§ 5634, 5642, 5668; Boston &c. Mining Co. v. Montana Ore Co., 188 U. S. 632, 639. Diversity of citizenship was not alleged, and, unless the allegations respecting the invalidity, under the legislation of Congress, of the defensive claim attributed to the defendants operated to bring the case within the jurisdiction of the Circuit Court, the judgment of dismissal was plainly right.

It is now contended that these allegations showed that the case was one arising under the laws of the United States, namely, the acts restricting the alienation of Choctaw and Chickasaw allotments, and therefore brought it within the Circuit Court's jurisdiction. But the contention overlooks repeated decisions of this court by which it has become firmly settled that whether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute (now § 24, Judicial Code), must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which

it is thought the defendant may interpose. Tennessee v. Union and Planters' Bank, 152 U. S. 454, 460, 464; Third Street Railway Co. v. Lewis, 173 U. S. 457, 460; Florida Central Railroad Co. v. Bell, 176 U. S. 321, 329; Boston &c. Mining Co. v. Montana Ore Co., supra; Joy v. St. Louis, supra; Devine v. Los Angeles, 202 U. S. 313, 333; Louisville & Nashville Railroad Co. v. Mottley, 211 U. S. 149; Shulthis v. McDougal, 225 U. S. 561, 569; Denver v. New York Trust Co., 229 U. S. 123, 133–135. Tested by this standard, as it must be, the case disclosed by the petition was not one arising under a law of the United States.

Whether or not in other respects the plaintiffs overlooked an authorized mode of securing relief to which they may be entitled need not now be considered. See 35 Stat. 312, 314, c. 199, § 6; Bowling v. United States, 233 U. S. 528, and cases cited.

Judgment affirmed.

WASHINGTON SECURITIES CO. v. UNITED
STATES.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 367. Argued May 7, 8, 1914.-Decided May 25, 1914.

Findings of fact concurred in by two lower Federal courts will not be disturbed by this court unless shown to be clearly erroneous.

A purchaser from a patentee is bound to take notice that the land was acquired under the homestead law when that appears in the patent, and if the other circumstances show that the purchase was made with knowledge that the land was known to be coal land when it was entered by the patentee, the purchaser must be deemed to have

taken with notice of the fraudulent obtaining of coal lands under the homestead law.

Where the application and proof of an entryman is strictly ex parte, the proceedings are not adversary, and while the findings of the land officer may not be open to collateral attack, they are not conclusive, but only presumptively right, against the Government in a suit to cancel the patent on the ground that it was obtained by fraud. 194 Fed. Rep. 59.

THE facts, which involve the validity of patents for lands issued under the homestead law and claimed by the Government to have been fraudulently obtained because the lands were known to be valuable for coal at the time, are stated in the opinion.

Mr. H. R. Clise, with whom Mr. Charles Kennedy Poe and Mr. Charles Poe were on the brief, for appellant.

Mr. Assistant Attorney General Knaebel for the United States.

MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

This was a suit to cancel four patents issued under the commutation provision of the homestead law and embracing a full section of land in King County, Washington. The bill charged that the patents were fraudulently procured by falsely representing to the land officers that the lands were agricultural in character, and therefore subject. to homestead entry, when in truth they were at the time known to be valuable coal lands and therefore excepted from the operation of the homestead law. After the patents were issued the lands were conveyed to the appellant, and there was a further charge that it took the title with notice and knowledge of the fraud. The Circuit Court found that these charges were true and entered