as he testified, in charging it with a further sum for taxes during the
same period. In a suit to recover this sum, the judge, in charging the
jury, told them that the first assessment, the payment of money in pur-
suance of it, and the acquiescence of the government for so long a time
since, raised a presumption that the assessment was correct, and that
the money paid covered the defendant's entire liability; that the bur-
den was thus cast upon the government of proving, by such evidence
as to fully satisfy the mind, that the assessment was erroneous; that
whether it had done so was for the jury to determine, and that the
judge did not desire to control their finding, but was of opinion that
under the circumstances they should not return a verdict for the gov-
ernment. Held, no error.

Ib.

3. A Circuit Court of the United States may direct a verdict for the plain-
tiff when it is clear from all the evidence in the case that he is entitled
to recover, and no matter affecting his claim is left in doubt to be
determined by the jury. North Penn. Railroad Co. v. Commercial
Bank, 727.

See ASSIGNMENT OF ERROR, 3;

CONTRIBUTORY NEGLIGENCE.

CRIMINAL LAW.

See JURISDICTION, A, 3.

CROSS EXAMINATION.

See JURISDICTION, A, 3.

CUSTOMS DUTIES.

1. Under § 2930 of the Revised Statutes, the merchant appraiser must be
a person familiar with the character and value of the goods; and under
§ 2901 he must open, examine and appraise the packages designated by
the collector and ordered to be sent to the public stores for examina-
tion. Oelbermann v. Merritt, 356.

2. In a suit to recover back duties paid under protest, an importer has a
right to show that those provisions of the statute have not been com-
plied with. Ib.

3. For that purpose the merchant appraiser is a competent witness. Ib.
4. Under § 2930 of the Revised Statutes, the merchant appraiser must be a
person familiar with the character and value of the goods. Mustin v.
Cadwalader, 369.

5. In a suit to recover back duties paid under protest, an importer has a
right to show that that provision of the statute has not been complied
with. Ib.

DEED.

See LOCAL LAW, 2, 3, 4.

DES MOINES RIVER LAND GRANT.

The litigation and decisions respecting the grants of land on the Des

Moines River, above the Raccoon Fork, stated. Stryker v. Goodnow,
527.

See ESTOPPEL;

JURISDICTION, A, 9, 10, 12;
JUDGMENT, 3.

DIPLOMATIC AND CONSULAR APPROPRIATION ACT.
See STATUTE, A.

DISTRICT OF COLUMBIA.

See LOCAL Law, 2, 3.

DIVISION OF OPINION.

1. Questions certified to this court upon a division of opinion of two judges
in the Circuit Court must be distinct points of law, clearly stated, so
that they can be definitely answered, without regard to other issues of
law or of fact; and not questions of fact, or of mixed law and fact,
involving inferences of fact from particular facts stated in the cer-
tificate; nor yet the whole case, even if divided into several points.
Jewell v. Knight, 426.

2. Whether a sale and delivery of a debtor's stock of goods, by way of
preference of a bona fide creditor, is fraudulent against other creditors,
involves a question of fact, depending upon all the circumstances,
and cannot be referred to this court by certificate of division of
opinion. Ib.

3. Whether an agreement to prefer a bona fide creditor is so fraudulent
against other creditors, as to avoid a subsequent preference of the
former, involves a question of fact, depending upon all the circum-
stances, and cannot be referred to this court by certificate of division
of opinion. Smith v. Craft, 436.

EQUITY.

1. In this suit the facts found are not materially and substantially differ-
ent from those alleged in the bill, and they will support a decree for
the relief asked for. Tufts v. Tufts, 76.

2. If the plaintiff's contention is well founded that the duty of the Com-
missioner of the General Land Office to take up, hear and determine
his appeal exists, that duty, so far as relates to entering upon its per-
formance, is strictly ministerial, and his remedy is at law, by manda-
mus, and not in equity. Craig v. Leitensdorfer, 189.

3. The controversy in this case being confined to the conflicting claims of
actual settlers, "holding possession under titles or promises to settle,"
made by Cornelio Vigil and Ceran St. Vrain, and established under
the provisions of the acts of June 21, 1860, 12 Stat. 71, and Febru-
ary 25, 1869, 15 Stat. 275; and it appearing from the pleadings, as
amended, that the plaintiff below did not aver an equitable interest in
himself in the lands which were so established in favor of the defend-

ant, and that the only remedy, which he sought, was to have it judi-
cially determined that the defendant's title was obtained by means of
the fraudulent act of an executive officer in the Land Office, whereby
the plaintiff was illegally deprived of a right of appeal from the
decision of that officer touching his own claims; Held, That the plead-
ings presented no question to give a Circuit Court jurisdiction in
equity over the case. Ib.

4. To a bill in equity to cancel a patent of land from the United States to
a preemptor, solely on the ground that there was no actual settlement
and improvement on the land, as falsely set out in affidavits in sup-
port of the preemption claim, the defence of a bona fide purchaser
without notice is perfect. Colorado Coal & Iron Co. v. United States,
307.

5. From a careful examination of all the evidence in this case, the court is
satisfied with the action of the Circuit Court dismissing the bill, and
the cross-bill as dependent upon the bill. Dewey v. West Fairmont Gas
Coal Co., 329.

6. In April, 1853, R. made a deed to himself, as trustee, of land in Georgia,
for the benefit of his wife and their children, during the life of the
wife, and, after her death, of such children, which deed was recorded
in May, 1853, in the office of the clerk of the Superior Court of the
county in which R. resided. In May, 1870, R. mortgaged to W. the
trust land and other land. W. foreclosed the mortgage, and on a sale,
in 1876, bid in the mortgaged lands, and obtained from the sheriff a
deed of them and took possession of them. In 1881, the beneficiaries
under the trust deed brought a bill in equity in the Circuit Court of
the United States, against W., to have the trust established. Among
the defences set up by W., he alleged that the trust deed was fabri-
cated after the mortgage was made, and was antedated, and that he
had no notice of the existence of the trust deed at or before the execu-
tion of the mortgage of May, 1870, or before the sheriff's sale in 1876.
The Circuit Court, without making any previous order for the trial of
issues of fact by a jury, had a trial by jury of the two questions above
mentioned. The jury found in favor of the plaintiffs on both ques-
tions. The defendant had bills of exceptions signed to the rejection
of evidence and to the instructions to the jury. The suit in equity
was heard by the same judge who presided at the jury trial. No
motion was made for a new trial. The decree was for the plaintiffs,
on the same proofs which were before the jury. On appeal by the
defendant, Held:

(1) No previous order for a jury trial was necessary, nor any certifi-
cate to the chancellor of the findings;

(2) The submission to the jury of the particular issues was not an
unlawful exercise of the discretion of the Circuit Court;

(3) The formal exceptions taken on the jury trial will not be consid-
ered by this court;

(4) The decree was correct, on the facts;

(5) The voluntary settlement was authorized by the statute law of
Georgia in force at the time it was made, it having been
recorded within three months, and was good against W., under
such statute law, because of the notice of its existence, which
he so had. Wilson v. Riddle, 608.

7. Multifariousness as to subjects or parties, within the jurisdiction of a
court of equity, does not render a decree void, so that it can be treated
as a nullity in a collateral action. Hefner v. Northwestern Ins. Co.,
747.

8. A court of equity, in a suit to forclose a mortgage, may permit a person,
to whom the land has been sold and conveyed for non-payment of
taxes assessed after the date of the mortgage, to be made a party, and
may determine the validity of his title. Ib.

9. A bill in equity by A against B and C to foreclose a mortgage from B to
A alleged that C claimed some interest in the premises, the exact
nature of which the plaintiff was unable to set out, and prayed for a
decree of foreclosure, and that the right, title, and interest of each
defendant be forever barred and foreclosed, and for a sale of the prem-
ises, and for further relief. In the decree C's default was recited and
confirmed, and it was adjudged that the mortgage was a lien prior and
paramount to the lien of each defendant, and that the right, title, and
equity of redemption of each defendant be by a sale under the decree
forever barred and foreclosed, and that the purchaser at such sale
should take the premises by title absolute, relating back to the date of
the mortgage. Under that decree the land was sold to A. Held, that
the decree was a conclusive adjudication that C had no valid title or
lien, and estopped him to set up, in defence to an action of ejectment
by A, a tax title subsequent to the mortgage and prior to the suit for
foreclosure. Ib.

1. Homestead Company v. Valley Railroad, 17 Wall. 153, is a judicial prece-
dent, which might have been referred to as a reason for holding that
taxes paid, under the circumstances in which the payments of taxes in
contention in these suits were made, cannot be recovered by the party
paying them from the true owners of the land; but it is no bar, as an
estoppel, to the recovery in these cases. Stryker v. Goodnow, 527.

2. The judgment of this court in Wolcott v. Des Moines Company, 5 Wall.
681, while it may be referred to by the parties in this suit as a judicial

precedent, does not operate as an estoppel against the defendant in
error.

Ib.

3. While the judgment of this court in Wolcott v. Des Moines Company, 5
Wall. 681, may be referred to by parties as a judicial precedent, it is
not an estoppel as against the defendant in error. Stryker v. Goodnow,
ante, 527, affirmed to this point. Chapman v. Goodnow, 540.

4. The plaintiff in error's intestate was not a party to Homestead Company
v. Valley Railroad, nor in privity with those who were parties, and was
not bound by the proceedings; and, as estoppels to be good must be
mutual, the Homestead Company and its assignees were not bound.
Litchfield v. Goodnow, 549.

See EQUITY, 9.

EVIDENCE.

1. Copies of official letters from the Commissioner of the General Land
Office to a person claiming title under a warrant and survey, reciting
the date of the filing of the survey in the office, being verified by the
oath of the person who was a clerk in that division of the Land Office
and at that time had charge of the matters relating to this subject, and
in whose letters to the parties interested were contained all the decis-
ions of the Commissioner relating to it, are competent evidence to
show the time of the filing. Coan v. Flagg, 117.

2. In a suit by the United States to cancel a patent of public land the bur-
den of producing the proof and establishing the fraud is on the Gov-
ernment, from which it is not relieved although the proposition which
it is bound to establish may be of a negative nature. Colorado Coal
& Iron Co v. United States, 307.

3. When a plaintiff's right of action is grounded on a negative allegation,
which is an essential element in his case, or which involves a charge of
criminal neglect of duty or fraud by an official, the burden is on him
to prove that allegation, the legal presumption being in favor of the
party charged. Ib.

4. In a proceeding in equity against an innocent purchaser to set aside a
patent of public land for fraud in which it is charged that an officer of
the United States, who was concerned in its issue, participated, the
burden of establishing his title is not cast upon the defendant by rais-
ing a suspicion, however strong, of the alleged fraud and wrong-doing
of the officer, if the officer could have been examined and was not. Ib.
5. In this case the United States sought to cancel a number of patents to
preemptors, the lands having passed into the hands of an innocent
purchaser, on the ground that there were no actual settlements and
improvements, but that the alleged preemptors were fictitious persons,
who did not exist, and that these facts were known to the register and
receiver, through whose fraudulent act in this respect the patents were
obtained. Having established that there were no such settlements and
improvements, the plaintiffs introduced the evidence of many witnesses