Opinion of the Court. as being stony and second-rate, and the timber as fir, cedar and hemlock, and the most convincing testimony of all is a series of twelve photographs taken near the centres of each legal subdivision of the tract. These pictures exhibit, with unerring certainty and faithfulness, magnificent trees standing so near together as to force each other to grow straight and tall. They satisfy the court that this tract is valuable and desirable for the timber upon it, and also that no man would be willing to subjugate this piece of forest for the mere sake of cultivating it." If it be suggested that this dense forest might be cleared off and then the land become suitable for cultivation, the reply is, that the statute does not contemplate what may be, but what is. Lands are not excluded by the scope of the act because in the future, by large expenditures of money and labor, they may be rendered suitable for cultivation. It is enough that at the time of the purchase they are not, in their then condition, fit therefor. The statute does not refer to the probabilities of the future, but to the facts of the present. Many rocky hill-slopes or stony fields in New England have been, by patient years of gathering up and removing the stones, made fair farming land; but surely no one before the commencement of these labors would have called them fit for cultivation. We do not mean that the mere existence of timber on land brings it within the scope of the act. The significant word in the statute is "chiefly." Trees growing on a tract may be so few in number or so small in size as to be easily cleared off, or not seriously to affect its present and general fitness for cultivation. So, on the other hand, where a tract is mainly covered with a dense forest, there may be small openings scattered through it susceptible of cultivation. The chief value of the land must be its timber, and that timber must be so extensive and so dense as to render the tract as a whole, in its present state, substantially unfit for cultivation. But after all, the question is not so much one of law for the courts after the issue of the patent, as of fact, in the first instance, for the determination of the land officers. The courts Dissenting Opinion: Brown, Harlan, JJ. do not revise their determination upon a mere question of fact. In the absence of fraud or some other element to invoke the jurisdiction and powers of a court of equity, the determination of the land officers as to the fact whether the given tract is or is not fit for cultivation, is conclusive. There is, in such cases, no general appeal from the land officers to the courts, and especially after the title has passed, and the money been paid. We do not, however, need to rest upon this proposition in this case, for the testimony clearly shows that the tract as a whole was not fit for cultivation, but was valuable chiefly for its timber. We see no error in the rulings of the trial court, and its decree will be Affirmed. MR. JUSTICE BROWN, with whom concurred MR. JUSTICE HARLAN, dissenting. Mr. Justice Harlan and myself agree with the majority of the court in its construction of the timber and stone act of June, 1878, that it provides for the sale of lands valuable chiefly for timber, but unfit, at the time of such sale, for cultivation. From so much of the opinion, however, as holds that the purchase of these lands by the defendant Montgomery was bona fide, we are constrained to dissent. The object of the act in question was to authorize the sale of timbered lands in lots not exceeding 160 acres to any one person, at a minimum price of $2.50 per acre; and, in furtherance of this object, it was provided in section 2, that the applicant must make oath that he has made no other application under the act; that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract in any way or manner with any person or persons whatsoever, by which the title he might acquire from the government of the United States should enure, in whole or in part, to the benefit of any person except himself. Dissenting Opinion: Brown, Harlan, JJ. The facts in regard to this particular entry are meagre. appears that Budd and Montgomery were both residents of Portland, Oregon, and that Budd carried on a stock stable there; that he entered the land on August 23, 1882, paid for it on November 10, and conveyed it to defendant Montgomery on December 4, for a nominal consideration of $1. Nearly three years thereafter he stated to a special agent of the land office that he had taken up the land for his own benefit; that he had not sold it to anybody, but still held it, (a statement manifestly untrue;) that he was not sure that he had ever seen the tract, but had once gone into the neighborhood for that purpose; and that the land was in "soak," whatever that may mean. He refused to make an affidavit, but said he would make a statement. The tract for which he paid $2.50 per acre is shown to be worth $5000, or over $31 per acre. Did the case rest upon this statement alone, it must be conceded that the government had not proven enough to authorize an annulment of the patent subsequently issued. But it is a familiar rule that where a particular act is equivocal in its nature, and may have been done with fraudulent intent, proof of other acts of a similar nature done contemporaneously or about the same time are admissible to show such intent. Cases of fraud are recognized exceptions to the general rule that the commission of one wrongful act has no legal tendency to prove the commission of another. Such other acts always have a bearing upon the questions of fraudulent intent or guilty knowledge where they are in issue. Thus, a single act of passing counterfeit money is very little, if any, evidence that the party knew it was counterfeit, since the innocent passing of such money is an every-day occurrence; but if it be shown that the person accused made other attempts to pass the money at or about the same time, or that he had other counterfeit money in his possession, the proof of scienter is complete. The same rule is frequently invoked in cases of alleged frauds upon the government. It was applied by this court in Castle v. Bullard, 23 How. 172, to a case where the defendants were charged with having fraudulently sold the goods of the plaintiff; in Lincoln v. Claflin, 7 Wall. 132, to an Dissenting Opinion: Brown, Harlan, JJ. action for fraudulently obtaining property; and in Butler v. Watkins, 13 Wall. 456, to an action for deceit in endeavoring to prevent a patentee from using his invention. The authorities are fully reviewed in New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591, a case where a policy of life insurance was alleged to have been obtained for the purpose of cheating and defrauding the insurance company, and evidence was admitted that policies in other companies had been obtained with like intent. In this connection the evidence shows that, in addition to Budd, there were twenty-one others, who within the next few months entered and paid for similar tracts of land, and within a few days thereafter conveyed them to the defendant Montgomery for the nominal consideration of $1. In two instances the land was deeded before the payment to the government. Thus of four entries and payments November 10, deeds were in all, except one instance, executed prior to December 15; of three entries in December, deeds were made within two days in two cases, and the day before the payment in the other; of three payments on March 17, for entries previously made, deeds were executed upon May 1; of eleven payments in June deeds were all made before the end of the month; and of one payment made July 2, a deed was executed June 26. In all these cases except one the entries were witnessed by George F. White and George W. Taylor, White being an agent of Montgomery for examining timber lands. All of the lands covered by these twenty-two entries lie in the same township, except one, which lies in an adjoining township. In all the cases but two the acknowledgments were nade before the same notarial officer. The deeds thus executed to Montgomery covered over 3000 acres, and, if valued on the basis of the valuation of the Budd land, would amount to about $100,000. Two witnesses swore that, in 1882, Montgomery requested them to take a timber claim, and offered to pay them $100 each for their rights and expenses. These facts, with certain others stated in the opinion of the court, constituted the case of the government. While, if these facts stood alone, without opportunity for further ex Dissenting Opinion: Brown, Harlan, JJ. planation, it might be open to argument whether they established such a case of want of good faith as to call upon this court to annul the patents, we are clearly of the opinion that they are of such a nature as to call upon the defendants to produce the testimony within their reach to explain the suspicious circumstances attending these entries. As the case stands, the inference seems to us unavoidable, either that Montgomery bargained for these lands beforehand, or that he was most singularly fortunate in being able to purchase them so soon after their entry. Neither Budd nor Montgomery, nor their witnesses White and Rockwell, were put upon the stand, though all, or at least, some of them, must have been cognizant of the entire facts connected with these transactions. "It is certainly a maxim," said Lord Mansfield, "that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted." Blatch v. Archer, Cowp. 63, 65. It has always been held that the omission of a party to testify as to facts in his knowledge in explanation of, or to contradict, adverse testimony is a proper subject for consideration both at law and in equity. McDonough v. O'Neil, 113 Mass. 92. The rule was thus stated by Chief Justice Shaw in the celebrated case of Commonwealth v. Webster, 5 Cush. 295, 316: "Where probable proof is brought of a state of facts tending to criminate the accused, the absence of evidence tending to a contrary conclusion is to be considered though not alone entitled to much weight; because the burden of proof lies on the accuser to make out the whole case by substantive evidence. But when pretty stringent proof of circumstances is produced, tending to support the charge, and it is apparent that the accused is so situated that he could offer evidence of all the facts and circumstances as they existed, and show, if such was the truth, that the suspicious circumstances can be accounted for consistently with his innocence, and he fails to offer such proof, the natural conclusion is, that the proof, if produced, instead of rebutting, would tend to sustain the charge." It is said by Mr. Starkie in his work on Evidence, vol. 1, |