It may be possible to draw up a code of the private civil jurisprudence, to which the principle of interpretation which I have thus advocated, would not necessarily apply.

If a code was so constructed that, while it formulated all the doctrines and rules of the common law and equity, with such alterations, amendments, and additions as were thought proper, it still retained in all its parts the distinguishing excellencies of those systems,-their elasticity, their power of expansion, of development, of continuous adaptation to the progressive condition of society; if such a code, in addition to the detail of doctrines and rules, also embodied all the leading principles of the common law and of equity, to be interpreted not according to the letter of their statutory expression, but as living and fruitful sources of doctrines and rules, to the same extent and in the same manner as before their being clothed with a statutory form; if such a code contained all of the existing doctrines and rules of the jurisprudence, stated in a complete manner, in consistent phraseology, with sufficient amplifications, explanations, illustrations, and applications; then the courts might look no further than the text of the legislation; might regard the code as the origin, the creation of a new era of jurisprudence. It was this kind of code and this alone which Austin advocated in all his writings, as capable of producing the benefits resulting from codification. It is this type of code which Lord Westbury, Sir James Fitzjames Stephens, and other leading law reformers in England have contemplated in all their discussions. It is such a code of the common law which Sir James Fitzjames Stephens prepared, and which is now pending before the British Parliament. Codes of this description have been established for the British dominions in East India. Having such precedents as these before them, which they might have followed, it is certainly a misfortune that the authors of the California code adopted, in place thereof, the work proposed by the New York commission, which was, at best, the mere outline of a civil code. The selection made by our state commissioners is now past remedy; the civil code must be accepted and acted upon as it is. The only mode by which its imperfections may be obviated, and the benefactor has ostensible authority to deal with the property of his principal as his own, in transactions with persons not having notice of the actual ownership." In the chapter on "Pledges," there is the following: "$2,991. One who has allowed another to assume the apparent ownership of property for the purpose of making any transfer of it, cannot set up his own title to defeat a pledge of the property, made by the other to a pledgee who received the property in good faith, in the ordinary course of business, and for value. In Davis v. Russell, 52 Cal., 611, 616, the court cite $ 2,901, and hold that it gives a factor the power to pledge. The court do not refer to the other sections above quoted, nor was their attention called to them by the arguments of counsel as reported. Even if by § 2,369 a factor has "ostensible" or implied power to pledge, that power is expressly confined to pledgees not having notice of the principal's rights of ownership. But the language of $ 2,991 is so broad that it might seem to validate pledges made by factors to pledgees who had notice of the principal's rights, under some circumstances. Even if there be no direct conflict between these sections, there is an ambiguity as to their true meaning and operation, which judicial interpretation alone can remove.

fits of codification may be partially realized from it, is, I earnestly submit, by adopting, and strictly enforcing, this uniform principle of interpretation, that all its provisions are to be regarded as simply declaratory of the previous common law and equitable doctrines and rules, except where the intent to depart from those doctrines and rules clearly appears from the unequivocal language of the text. This subject is, in my opinion, one of the highest practical importance. I respectfully commend the views stated in this essay, to the earnest consideration of every member of the bar who feels an interest in improving and perfecting the jurisprudence of his state.

It has been suggested to me that in giving § 55 of the civil code defining marriages as an example of uncertainty, in a previous article (ante p. 50) the remarks which I made concerning one mode of construing its language, might exert an influence upon the decision of any action which may be pending before the courts, involving the judicial interpretation of this section, and might thus be prejudicial to one or the other of the litigant parties. It is certainly unnecessary for me to say that no such effect was intended or suspected; nor shall I for a moment assume that suggestions, so casually made, could have the slightest influence upon the minds of judges in determining any pending controversies. The whole scope of my essay is apparent, to point out various kinds of ambiguities and uncertainties which arise mainly from the phraseology, and mode of composition adopted by its authors, and which seem to require that a uniform system of interpretation should be followed by the courts, and to describe the system which, as it seemed to me, would produce the most beneficial results. All the examples selected, were given solely as illustrations or supposed illustrations of these positions. In speaking of $55, the opinion, whether correct or not, was expressly given, that its true meaning and effect could only be determined by judicial interpretation. Nor could my remarks, I think, influence that interpretation in either way. When correctly understood, my remarks deal with the question, what reason or ground was there for altering the common law rule? rather than with the question, whether the common law has been altered? or the question, how or to what extent has it been altered? Still, since my comments may appear to some readers as dwelling mainly upon the difficulties or objections in the way of interpreting the section as changing the common law rule, the difficulties and objections in the way of a contrary interpretation might well have been presented more fully. Whatever weight may be due to the considerations before suggested in the former article, there are, in my opinion, equal, if not greater obstacles to an interpretation which treats the section as having made no material alteration in the rule as previously settled,— the common law rule. If, by the previous rule, after verba in praesenti the copula was sufficient to constitute a marriage, it seems almost impossible to suppose that in the phrase, “by a mutual assumption of marital rights, duties or obligations," the authors of the code and the legislature did not mean something more and different,-something additional. We may wonder at the employment of terms so unlike the usual phraseology of statutes, and may regret that words more definite and certain in their meaning were not selected; and still if we give any fair and reasonable signification to all the language, we can hardly escape the conclusion that " a mutual assumption of marital rights, duties or obligations," imports acts and conduct of the two parties towards each other, and rights and duties belonging to the marriage relation, which cannot possibly be embraced in the word "copula," or the word consummation," or even, perhaps, the word "cohabitation." Exactly what is meant by the phrase, I repeat, only the courts can determine.

66

J. N. P.

CIRCUIT COURT, DISTRICT OF COLORADO.

S. S. WRIGHT ET AL. v. J. J. B. DUBOIS ET AL.

Filed, October, 1884.

PATENT OF MINERAL LANDS FROM THE UNITED STATES-RIGHTS OF PATENTEE-INTERFERENCE BY A STRANGER.-Where defendants have obtained a patent of mineral land, from the United States government, after all the preliminary steps required by statute had been duly taken, including the sixty days publication of notice, and where no adverse claim was filed by the complainants during such publication, but after the publication of notice had been completed the complainants objected before the local land office, and before the general land department, to defendants' right to a patent, and after hearings on said objections the defendants' title was sustained and a patent issued to them; Held, that the complainants not being connected with nor having any interest in the title cannot object to the patent on the ground of any alleged wrong which the patentees may have perpetrated against the government.

THE SAME.-The government as a land owner offers its lands for sale upon certain prescribed conditions, compliance with which is a matter of settlement between the owner and purchaser alone, and with which no stranger to the title can complain. Publication of notice is a process bringing all adverse claimants into court, and if no adverse claims are presented, it is conclusively presumed that none exist, and that no third parties have any rights or equities in the lands. Thereafter the only right or privilege remaining to any third parties is that of protest or objection filed with the land department and cognizable only there; if sustained by the department, the proceedings had by the applicant are set aside; if overruled, the protestant or objector is without further right or remedy.

PETITION for a rehearing of an order made by the United States district judge denying an injunction. The facts appear in the opinion.

A. W. Rucker and H. B. Johnson, for the complainants.
L. C. Rockwell and J. B. Bissell, for the defendants.

BREWER, CIRCUIT JUDGE. This case comes before me on a peti tion for rehearing on an order of Judge Hallett, denying a n injunction. The defendants have a patent, and therefore hold the legal title. It is beyond question that, as a matter of fact, they discovered mineral wealth within the limits of their location. It is also beyond question that they complied with all the preliminary steps for obtaining a patent, including the sixty days' publication of notice; and that no adverse claim was filed by the complainants or their grantors during the pendency of such publication. It also appears that after the publication of notice had been completed, the complainants challenged before the local land office, as well as before the department at Washington, the right of defendants to a patent. That contest was protracted. Many hearings were had before the local land offices, as well as at Washington, and, as the result thereof, the title of the defendants was sustained, and the patent issued.

Question is made as to whether the defendants discovered mineral in their discovery shaft, and also whether the complainants had discovered mineral prior to the publication of the notice.

Now, some general propositions may as well be stated: first, the government, as the original owner, offers the title to these mineral lands, upon certain conditions, to whomsoever discovers mineral. The amount of land it will convey to each locator is limited, and certain forms of procedure are prescribed, but the primal fact is

that the lands are offered to those who discover the mineral. In this matter the government resembles a private land-owner who makes an offer to sell his land upon specified conditions. When the patent issues, the title passes from the government, and no one can question that title who has not prior thereto, by compliance with the conditions prescribed by the government, himself acquired an interest in the land. It matters not what wrong the patentee may have perpetrated upon the government-it, and it alone, can complain. In other words, when grantor and grantee are satisfied, a stranger has nothing to say. In Smelting Co. v. Kent, 104 U.S., 647, speaking of this question, the Court says: "This complainant cannot be heard unless he connect himself with the original source of title, so as to be able to aver that his rights are injuriously affected by the existence of the patent, and he must possess such equities as will control the legal title in the patentee's hands: Boggs v. Mining Co., 14 Cal., 271. It does not lie in the mouth of a stranger to the title to complain of the act of the government with respect to it. If the government is dissatisfied, it can, on its own account, authorize proceedings to vacate the patent or limit its operation.' So whether or not it is essential, under the state law, that there be a discovery of mineral in the discovery shaft, no one can raise that question after the issue of the patent, unless he have prior equities in the land.

Indeed, as the primal fact is the discovery of mineral, I do not see how the government can avoid its patent on the ground that there was no mineral discovered in the discovery shaft, provided it was in fact discovered within the location, and this notwithstanding it may be conceded that the state law is operative and requires a discovery in the discovery shaft. This, like the time of publication of notice, the filing of the plat, etc., is mere matter of procedure, and if the substantive fact of the discovery of mineral exists, I do not see how the government, for any irregularities or defects of procedure, can equitably avoid its patent.

Again, it is, as stated, conceded that no adverse claim was filed by the complainants, and I think it follows therefrom that judgment has gone against them as to all claims which they may have had or supposed they had. The language of the statute is somewhat peculiar, and its peculiarities were commented upon by Judge Hallett in the opinion filed.

It reads: "If no adverse claim shall have been filed with the register and the receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter."

Section 2,325, revised statutes: "It shall be assumed that no adverse claim exists.”

By whom assumed, for what purpose and fo what extent? By the government, the owner of the land, the party offering it for sale; in order that the claims of all other parties to the land and the benefit of the owner's offer be presented and determined, and that thereafter the government may deal with the applicant alone, inquiring simply whether he had performed the prescribed conditions, and conclusively assumed. The proceedings before the land department are judicial, or quasi judicial at least. The publication is process. It brings all adverse claimants into court and failing to assert their claims, they stand at the expiration of the notice in default.

True, no adverse claimant or supposed claimant may be named in the notice, no process may be served personally upon him. But that does not avoid the notice or weaken its sufficiency to bring such party into court. This is not the only case known to the law in which parties not named in a notice are by it brought into court and their rights adjudicated.

Unknown heirs are often thus brought in by a published notice. Tax proceedings, condemnations of rights of way, admiralty cases and many others present familiar illustrations.

The sufficiency of the notice in these cases is unquestioned, even though the adverse claimant be not named, and no personal service be had. And if the parties be brought in obviously it is that their claims be presented and determined. The succeeding section provides how such claims, if presented, shall be determined. Even without such section the purpose would be apparent. It would be grievous wrong to leave disputed claims unsettled, and when the owner of lands making such general offer prescribes time, place, tribunal and manner of settling adverse claims, such provisions are a part and condition of the offer, and should be vigorously insisted upon by the courts.

Conclusively assumed, any other rule would destroy the practical value of the provisions. If, notwithstanding his failure to adverse, a party may still present and litigate his rights, of what use to adverse? A failure to do so might give his adversary the advantage of a prima facie title, but the real question, the absolute rights, would remain undetermined The applicant would hesitate to improve and develop his property because ignorant of what contests were before him, what claims might be presented. And the contestant might wait till the evidence in favor of the applicant's right have ceased to exist or passed beyond his control and then unexpectedly come forward with his claims.

I do not mean that cases may not arise in which equity will interfere thereafter, if there be equitable grounds for interference, as where, by the acts of the applicants, those who might have adversed have been prevented, deceived or misled; but unless such equitable reasons exist, and none such appear in this case, he who fails to adverse until the expiration of publication is absolutely cut off and cannot be heard to say that he has prior rights.