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portation were, after such presentation, from time to time, and regu-
larly, adjusted and paid on that basis. This action was then brought
in the Court of Claims to recover for the transportation of the in-
spectors. Until it was commenced no claim for such transportation
had ever been made on the United States. Held, that, without decid-
ing whether the claim of the department that its inspectors were enti-
tled to free transportation was or was not well founded, the silence of
the company, and its acquiescence in the demand of the government
for such free transportation operated as a waiver of any such right of
action. Central Pacific Railroad Co. v. United States, 93.

2. The terms and conditions imposed on the grant under which the plain-
tiff in error holds embraced the condition that the mail should be
carried at such rates as Congress might fix; and § 13 of the act of
July 12, 1876, was applicable. Wisconsin Central Railroad Co. v.
United States, 190.

3. The Postmaster General, in directing payment of compensation for
mail transportation, does not act judicially. Ib.

MANDAMUS.

The general power of this court to issue a writ of mandamus to an inferior
court is well settled; but, as a general rule, it only lies where there is
no other adequate remedy, and cannot be availed of as a writ of error.
In re Atlantic City Railroad, 633.

MARSHAL.

See FEES, 5, 6, 7, 8.

MECHANIC'S LIEN.

On the 16th of August, 1889, a statute was in force in the Territory of
Utah providing for the creation of mechanic's liens for work done or
materials furnished under contracts in making improvements upon
land; but, in order to enforce his lien a contractor was required,
within 60 days after completion of the contract, to file for record a
claim stating his demand, and describing the property to be subjected
to it; and no such lien was to be binding longer than 90 days after so
filing, unless proper proceedings were commenced within that time to
enforce it. On that day G. contracted with an irrigation company
to construct a canal for it in Utah. He began work upon it at once,
He
which was continued until completion, December 10, 1890.
claimed, (and it was so established,) that, after crediting the com-
pany with sundry payments, there was still due him over $80,000, for
which amount he filed his statutory claim on the 23d day of the same
December. On the 1st day of October, 1889, the company mortgaged
its property then acquired, or to be subsequently acquired, to a trustee

to secure an issue of bonds to the amount of $2,000,000, the proceeds
of which were used in the construction of the company's works, in-
cluding the canal. On the 12th of March, 1890, the legislature of
Utah repealed said statute, and substituted other statutory provisions
in its place, and enacted that the repeal should not affect existing
rights or remedies, and that no lien claimed under the new act should
hold the property longer than a year after filing the statement, unless
an action should be cominenced within that time to enforce it. On
the 1st day of May, 1890, C. contracted with the company to do work
on its canal, and did the work so contracted for. The balance due G.
not having been paid, he brought an action to recover it, making the
company, the mortgage trustees, and C. defendants, which action was
commenced more than 90 days after the filing of his claim. To this
suit C. replied, setting up his mechanic's lien. The court below made
many findings of fact, among which were, (29th,) that the right of
way upon which the canal was constructed was obtained by the com-
pany under Rev. Stat. § 2339; and, (33d,) that the work done by G.
and C. respectively had been done with the consent of the company
after its entry into possession of the land. Exception was taken to
the 29th finding as not supported by the proof. The court below
gave judgment in favor of both G. and C., establishing their respec-
tive liens upon an equality prior and superior to the lien of the mort-
gage trustees. Held, (1) That this court will not go behind the
findings of fact in the trial court, to inquire whether they are sup-
ported by the evidence; (2) That G.'s action was commenced within
the time required by the statutes existing when it was brought; (3)
That the judgment of the court below thus establishing the respective
liens of G. and C. was correct. Bear Lake & River Water Works &c.
Co. v. Garland, 1.

See MORTGAGE, 2, 3.

MOOT QUESTION.

See JURISDICTION, A, 3.

MORTGAGE.

1. A clause in a mortgage which subjects subsequently acquired property
to its lien is valid, and extends to equitable as well as to legal titles to
such property. Bear Lake Irrigation Co. v. Garland, 1.

2. Under Rev. Stat. §§ 2339, 2340, no right or title to land, or to a right of
way over or through it, or to the use of water from a well thereafter to
be dug, vests, as against the government, in the party entering upon
possession, from the mere fact of such possession, unaccompanied by
the performance of labor thereon; and, as the title in this case did not
pass until the ditch was completed, the mortgage was not a valid in-
cumbrance until after the liens of G. and of C. had attached, and will
not be held to relate back for the purpose of effecting an injustice. Ib.

3. The act of March 12, 1890, is to be construed as a continuation of the
act in force when the Garland contract was made, extending the time
in which an action to foreclose its lien should be commenced; and, as
this was done before the time came for taking proceedings to effect a
sale under the lien, it was not an alteration of the right or the remedy,
as those terms are used in the statute. Ib.

See LOCAL Law, 1, 3.

MUNICIPAL CORPORATIONS.

1. A court of equity cannot properly interfere with, or in advance restrain
the discretion of a municipal body while it is in the exercise of powers
that are legislative in their character. New Orleans Water Works Co.
v. New Orleans, 471.

2. Legislatures may delegate to municipal assemblies the power of enacting
ordinances relating to local matters, and such ordinances, when legally
enacted, have the force of legislative acts. lb.

NATIONAL BANK.

1. The provisions of §§ 96 and 98 of c. 157 of the Public Statutes of Massa-
chusetts, invalidating preferences made by insolvent debtors and as-
signments or transfers made in contemplation of insolvency, do not
conflict with the provisions contained in Rev. Stat. §§ 5136 and 5137,
relating to national banks and to mortgages of real estate made to
them in good faith by way of security for debts previously contracted,
and are valid when applied to claims of such banks against insolvent
debtors. McClellan v. Chipman, 347.

2. National Bank v. Commonwealth, 9 Wall. 353, affirmed to the point that it
is only when a state law incapacitates a national bank from discharg-
ing its duties to the government that it becomes unconstitutional: and
Davis v. Elmira Savings Bank, 161 U. S. 275, affirmed to the point
that national banks are instrumentalities of the Federal government,
created for a public purpose, and as such necessarily subject to the
paramount authority of the United States: and the two distinct propo-
sitions held to be harmonious. Ib.

3. The Comptroller of the Currency may appoint a receiver of a defaulting
or insolvent national bank, or call for a ratable assessment upon the
stockholders of such bank without a previous judicial ascertainment
of the necessity for either. Bushnell v. Leland, 684.

PATENT FOR INVENTION.

Letters patent No. 331,920, issued to George W. Taft, December 8, 1885,
for a machine for making, repairing and cleaning roads, are void, if
not for anticipation, for want of invention in the patented machine.
American Road Machine Co. v. Pennock & Sharp Co., 26.

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1. The fact that a marriage license has been issued carries with it a pre-
sumption that all statutory prerequisites thereto have been complied
with, and one who claims to the contrary must affirmatively show the
fact. Nofire v. United States, 657.

2. Persons coming to a public office to transact business who find a person
in charge of it and transacting its business in a regular way, are not
bound to ascertain his authority to so act; but to them he is an officer
de facto, to whose acts the same validity and the same presumptions
attach as to those of an officer de jure. Ib.

PRINCIPAL AND SURETY.

A surety on a bond, conditioned for the faithful performance by the prin-
cipal obligor of his agreement to convey land to the obligee on a day
named on receiving the agreed price, is released from his liability if
the vendee fails to perform the precedent act of payment at the time
provided in the contract, and if the vendor, having then a right to
rescind and declare a forfeiture in consequence, waives that right.
Coughran v. Bigelow, 301.

PUBLIC LAND.

1. The action of local land officers on charges of fraud in the final proof
of a preemption claim does not conclude the government, as the Gen-
eral Land Office has jurisdiction to supervise such action, or correct
any wrongs done in the entry. Orchard v. Alexander, 157 U. S. 372,
affirmed and followed to this point. Parsons v. Venzke, 89.
2. The jurisdiction of the General Land Office in this respect is not arbi-
trary or unlimited, or to be exercised without notice to the parties.
interested; nor is it one beyond judicial review, under the same con-
ditions as other orders and rulings of the land department. Ib.

3. The seventh section of the act of March 3, 1891, c. 561, 26 Stat. 1098,
providing that "all entries made under the preëmption, homestead,
desert-land or timber culture laws, in which final proof and payment

may have been made and certificates issued, and to which there are
no adverse claims originating prior to final entry and which have been
sold or incumbered prior to the first day of March, eighteen hundred
and eighty-eight, and after final entry, to bona fide purchasers, or in-
cumbrancers for a valuable consideration, shall, unless upon an investi-
gation by a government agent, fraud on the part of the purchaser has
been found, be confirmed and patented upon presentation of satisfac-
tory proof to the land department of such sale or incumbrance,"
refers only to existing entries, and does not reach a case like the
present, where the action of the land department in cancelling the
entry and restoring the land to the public domain took place before
the passage
of the act. Ib.
4. The changes made in the grants to Wisconsin in the act of May 5, 1864,
to aid in the construction of railroads from those made to that State
by the act of June 3, 1856, rendered necessary some modifications of
provisos 1 and 3 of § 1, and of §§ 2, 3 and 4 of the latter act, and they
were accordingly reenacted in homologous provisos and sections of the
act of 1864; but as the second proviso of § 1 and § 5 of the act of
1856 required no modification, they were not reënacted, but the terms
and conditions contained therein were carried forward by reference,
as explained in detail in the opinion of the court. Wisconsin Central
Railroad Co. v. United States, 190.

5. Doing that which it is necessary to do, in order that a newly created
land office may be in a proper and fit condition at the time appointed
for opening it for public business, is a part of the official duties of
the person who is appointed its register and receiver. United States
v. Delaney, 282.

6. The claimant having entered on the performance of such duties at a
new office in Oklahoma on the 18th of July, 1890, and having been
engaged in performing them, in the manner described by the court in
its opinion, from thence to the 1st of September following, when the
office was opened for the transaction of public business, is entitled to
compensation as register and receiver during that period. Ib.
7. As the claim of the plaintiff in error, claiming under an alleged preëmp-
tion, was passed upon by the proper officers of the land department,
originally and on appeal, and as the result of the contest was the
granting of a patent to the contestant, in order to maintain her title
she must show, either that the land department erred in the con-
struction of the law applicable to the case, or that fraud was prac-
tised upon its officers, or that they themselves were chargeable with
fraudulent practices, which she has failed to do. Gonzales v. French,
338.

8. The claim of the plaintiff in error to a right of preemption is fatally
defective because her vendors and predecessors in title had failed to
make or file an actual entry in the proper land office. Ib.

9. The Supreme Court of the State of Montana having decided adversely

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