the first of the succeeding month. Information about the absence of an answer was also given to the plaintiff about that time. But it does not appear that he or his attorney took any action then or thereafter either to show that an answer had been filed or to correct the omission if none had been filed, although it does appear that more than seven months elapsed before the patent was issued. Whether in fact an answer was filed is left uncertain, for it is alleged that the plaintiff believes one was filed, that the contest record does not show such a filing, that no answer is in the files, and "that plaintiff's attorney either failed to file an answer in the contest proceeding or that said answer, having been filed, was disregarded." In this situation it is urged (a) that the inspector, by stating that the lot was in litigation, caused the plaintiff's attorney to believe that an answer was on file and thereby misled him; (b) that if no answer was filed it was an unfortunate omission for which the plaintiff was not responsible, and if one was filed it was wrongfully disregarded; and (c) that the contest was decided against the plaintiff without a hearing or an opportunity to be heard.

The statement attributed to the inspector, that the lot was in litigation, doubtless meant, and only meant, that the contest was pending and undecided. That was its natural import, and it was equally true whether the plaintiff had answered or was in default. Therefore, the claim that his attorney was misled is not even colorable. If the question whether an answer was filed be an open one, the allegations of the petition bearing thereon are so uncertain that effect must be given to the decision that none was filed. Not only is there a strong presumption that the decision was right, but the admission that no answer is in the files and that the contest record does not show the filing of one goes far to sustain the decision independently of the presumption. Thus, the absence of an answer must be regarded as accounted for only on the theory that the

attorney omitted to file one. Of that it is to be observed, first, that the omission was by the plaintiff's chosen representative; second, that there is no suggestion that it was in any wise attributable to the defendant or the administrative officers before whom the contest was pending, and, third, that it was called to the attention of the plaintiff while it was still within the power of the administrative officers to relieve him from the default, if the circumstances justified such action, and to proceed to a hearing and disposition of the contest as if the omission had not occurred, and yet no effort was made by him to secure action of that kind. In these circumstances the failure of the attorney to file an answer furnishes no ground for avoiding the decision. It is idle to say that the plaintiff did not have a hearing or an opportunity to be heard. He was notified of the contest, was served with a copy of the complaint, and was cited to answer, all in conformity with the regulations, and he could not have failed to understand that to make default would be in the nature of a confession of his adversary's claim and an abandonment of his own. Failing, as he did, to answer or interpose any objection to the contest, he raised no issue entitling him to a hearing. His trouble is, not that he was not accorded a hearing or an opportunity to be heard, but that he did not avail himself of the opportunities afforded.

In the petition the plaintiff now does what he failed to do in the contest, that is, takes issue with the allegations of the complaint therein by denying that they were true; and he insists that in this way the petition shows that misrepresentation and fraud were practiced upon the administrative officers whereby the patent was issued to the defendant when it should have been issued to him. The insistence cannot be sustained. The contest was not ex parte, as were the proceedings involved in United States v. Minor, 114 U. S. 233, 240–243; Sanford v. Sanford, 139 U. S. 642, 644, 650, and Svor v. Morris, ante, p. 524, but

was an adversary proceeding to which the plaintiff was a party, of which he had due notice, and in which he had full opportunity to meet and controvert the very allegations he now says were untrue. The question whether they were true or otherwise is one the decision of which was committed by law to the administrative officers as a special tribunal, and they, as is conceded, decided that the allegations were true, their action being in the nature of a judicial determination. The applicable rule in such a case is, that the misrepresentation and fraud which will entitle the unsuccessful claimant to relief against the decision and resulting patent must be such as have prevented him from fully presenting his side of the controversy, or the officers from fully considering it; and it is not enough that there may have been false allegations in the pleadings or that some witness may have sworn falsely. Vance v. Burbank, 101 U. S. 514, 519; Lee v. Johnson, 116 U. S. 48; Estes v. Timmons, 199 U. S. 391, 396; Greenameyer v. Coate, 212 U. S. 434, 444; Durango Land & Coal Co. v. Evans, 80 Fed. Rep. 425, 430.

The petition contains some allegations descriptive of the complaint in the contest and of the matters set forth in it, and it is urged that in this way it appears that, upon her own showing, the defendant did not have such a possessory claim as entitled her to a preference right of purchase, and therefore.that the officers committed an error of law in sustaining the contest. Of this it seems enough to say that the petition neither sets forth a copy of the complaint nor purports to give the whole of its substance, and that upon contrasting what the petition does say of the complaint with the applicable sections of the act of 1902 it does not appear that the contest was ill founded. For aught that is disclosed, the complaint and the proof in support of it may have fully established the defendant's right to purchase.

Other contentions advanced in the brief of the plaintiff

Counsel for Plaintiff in Error.

227 U. S.

have been considered and found so far untenable that their discussion here would serve no useful purpose. Judgment affirmed.

MATHESON v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE FOURTH DIVISION OF THE TERRITORY OF ALASKA.

No. 148. Submitted January 24, 1913. Decided February 24, 1913.

Where the jurisdiction is coextensive with the district, multiplication of places at which courts may be held or mere creation of divisions does not nullify it. Barrett v. United States, 169 U. S. 231. Jurors summoned by the District Judge in Alaska before the act of March 3, 1909, creating a Fourth Division, became effective, to attend the first term of the court in that division when the act did become effective, held properly summoned, as the act did not create a new tribunal or revoke the power of the District Judges to summon jurors to attend at any session of the court.

It is the duty of the judge to determine whether non-experts are qualified to express an opinion as to sanity of the accused, and in this case there does not appear to have been any abuse of discretion. An instruction that while the burden of proof is on defendant to establish the fact of insanity, the jury cannot convict if they had reasonable doubt as to his sanity, held proper and sufficient. Daris v. United States, 160 U. S. 469.

The court properly instructed the jury as to the definition of insanity and as to what relieves defendant from criminal responsibility by giving the charge approved in Davis v. United States, 165 U. S. 373.

THE facts, which involve the construction of certain provisions of the Alaska Code of 1900 and the validity of a trial and conviction for murder in Alaska, are stated in the opinion.

Mr. James Wickersham and Mr. John F. Dillon for plaintiff in error.

Mr. Assistant Attorney General Adkins and Mr. Karl W. Kirchwey for the United States.

MR. JUSTICE LAMAR delivered the opinion of the court.

Congress, by the act of June 6, 1900 (31 Stat. 321, 322, c. 786), established a District Court for Alaska with general civil and criminal jurisdiction. There were three judges, who though given jurisdiction over the entire District were required to reside in that one of the three Divisions to which they were respectively assigned by the President. On December 29, 1908, the Grand Jury of the Third Division indicted Matheson for murder. On the next day he was arraigned and entered a plea of not guilty. Before his case was called for trial, Congress passed the act of March 3, 1909 (35 Stat. 838, 839, c. 269), providing for a Fourth Division to be held at Fairbanks by the judge of the former Third Division. This act was not to become effective until July 1, 1909, but in preparation for the first term convened thereunder the District Judge, assigned to the Fourth Division, passed an order, under which jurors were drawn and summoned in June to attend at the session of court to be held in July at Fairbanks.

On July 13, during this term, the defendant applied for and obtained an order to have his witnesses subpoenaed at the expense of the Government. His case was called for trial in September. He announced ready, and without making any question as to the qualification of the jurors or the method and regularity of their selection, objected to the entire panel on the ground that the Judge of the Third Division was without jurisdiction to issue the call at a time when the Fourth Division had not come into existence. The objection was overruled. Several of those on the jury, which tried his case, were taken from this panel. After a verdict of guilty and sentence to imprisonment for life the case was brought here by writ of