pany, within reasonable bounds, has the right to make a rate for the transportation of horses, household goods, and furniture, and also to make a different rate for potatoes, bacon, etc. If other property of Findley was carried in the car from the state line to Minneapolis than the household goods and horses mentioned in the contract, and for the carriage of which the rate of the railway company was higher than its rate for household goods and horses, then clearly the company was entitled to be paid by Findley its rate for carrying such other property. The company also had a lien for its charges for transportation upon such property, and was entitled to retain the same until the charges were paid.

The findings of the jury to question 2, and to a part of question 3, submitted, are not supported by the evidence, and these special findings being important, the verdict and findings ought to have been set aside and a new trial granted. "Where a jury render a general verdict, and make special findings by answering special questions submitted to them, and some of the special findings are not true, and some of the answers given to the special questions are so evasive and unsatisfactory as to lead to the belief that the party against whom the jury rendered their verdict did not have a fair and impartial trial, the verdict and findings should be set aside and a new trial granted." Railway Co. v. Fray, 31 Kan. 739; S. C. 3 Pac. Rep. 550. The written contract of April 11, 1880, between Findley and the Kansas Pacific Railway Company (now the Union Pacific Railway Company) was the sole and only contract between the parties for the transportation of the household goods and horses described therein. Therefore the testimony of all verbal or written contracts prior to that one ought not only to have been withdrawn from the jury by the court, but, to have prevented misapprehension, it would have been better if the court, having admitted such evidence, had instructed the jury, as prayed for by the railway company, that the various contracts made by Findley with other railroad companies were not binding upon the Union Pacific Railway Company, as there was no evidence showing, or tending to show, that the agents of the Union Pacific Railway Company at the state line or elsewhere knew the contents of the car, other than as described in the written contract. The direction of the trial court that if Findley, with the knowledge or consent of the Union Pacific Railway Company, put into the car other articles than his horses and household goods, he would be entitled to the contents of the car, without paying additional freight, was misleading. Even if Findley ever had a contract for the through carriage of his freight from Bloomington, Indiana, to Minneapolis, Kansas, he waived all of the terms and conditions thereof by subsequently making special written contracts with each of the separate railway companies, or distinct carriers between Bloomington and Minneapolis.

The judgment of the district court will be reversed, and the cause remanded for further proceedings.

(All the justices concurring.)

(68 Cal. 184)

SUPREME COURT OF CALIFORNIA.

SCHIEFFERLY v. TAPIA. (No. 9,113.)

Filed December 16, 1885.

1. NEW TRIAL-TIME FOR FILING NOTICE-WAIVER.

Though a notice of intention to move for a new trial was not served or filed in time, if nothing appears in the statement to show that the adverse party made any objection to the service of the notice on admitting service of it, or of the statement, or on settlement of the statement, such objections are deemed to have been waived.

2. PUBLIC LANDS-PRE-EMPTION-STATE PATENT, VALIDITY OF.

Where certain lands had been listed to the state, and a patent of the state issued to plaintiff's grantor, a defendant claiming under a pre-emption settlement prior to the inception of any rights on the part of the state could not attack the validity of the listing to the state without connecting himself with the United States, the original source of title. To do this, under his claim of pre-emption, he must show that he was at the time of the selection made by the state in privity with the United States, and to establish this privity he must show that he was a duly-qualified pre-emptor, according to law, and had fully complied with the laws of the United States at the time existing, requisite to acquire the right of pre-emption. Neither could he attack the patent by the state without showing some privity with the state.

3. SAME-TIME FOR FILING DECLARATORY STATEMENT.

Under the United States statutes, a pre-emption right claimant must file his declaratory statement within three months from the date of receipt at the district land-office of the approved plat of the township embracing his preemption settlement, and if such statement is not filed in time, another claimant is entitled to come in and make a proper claim.

4. EJECTMENT-TRIAL OF EQUITABLE ISSUES IN.

Equitable issues raised by the answer in an action of ejectment must be first tried.

Department 2. Appeal from superior court, county of San Luis Obispo.

F. Anderson, V. A. Gregg, J. M. Wilcoxson, Jas. F. Stuart, and H. A. Powell, for appellant.

E. & Wm. Graves and J. N. Turner, for respondent.

THORNTON, J. The appeal from the judgment was not taken in time, and must therefore be dismissed. It is said that the notice of intention to move for a new trial was not served and filed in time. The record shows that due service of the statement on motion for a new trial was admitted by the defendant's attorney, and that this statement was allowed and settled by the judge, "both parties being present by their attorneys." There is nothing in the statement to show 'that defendant's attorney made any objection to the service of the notice of intention on admitting service of it, or of the statement, or on the settlement of the statement; and under such circumstances it must be held that any fault in giving notice was waived. See Hobbs v. Duff, 43 Cal. 486; Gray v. Nunan, 63 Cal. 220; Hibernia Soc. v. Moore, 8 Pac. Rep. 824. The motion to dismiss the appeal from the order denying a motion for a new trial must therefore be denied.

The action is ejectment. The land in controversy was listed to the

state of California as lieu on the thirteenth of March, 1877, on an application and selection appearing to have been made by it on October 1, 1873. On the thirty-first of July, 1879, the patent of the state was issued to Willard B. Brown, and on the seventeenth of October, 1881, Brown conveyed to plaintiff. The above constitutes plaintiff's chain of title. Defendant claims under a pre-emption settlement made in November, 1870, prior to the inception of any right on the part of the state. The court instructed the jury as follows:

"The patent put in evidence is dependent for its validity upon the legality and validity of the listing of the land by the general government over to the state of California. If, at the time it was so listed, it had been, pursuant to law, reserved or withdrawn for the benefit of the Atlantic & Pacific Railroad Company, and such reservation or withdrawal was then in force, and the land had not been restored, the listing was an absolute nullity, and the patent from the state based upon it is void."

An attempt was made by this instruction to attack the validity of the listing to the state, which is equivalent to a patent in passing to it the fee-simple. Rev. St. U. S. § 2449; Frasher v. O'Connor, 115 U. S. 1161; 10 St. at Large, 346. This the defendant could not do without connecting himself with the United States the original source of title. To do this, under the claim of pre-emption which he here makes, he must show that he was at the time of the selection made by the state in privity with the United States. Terry v. Megerle, 24 Cal. 627; People v. Stratton, 25 Cal. 242; Page v. Hobbs, 27 Cal. 483; Carder v. Baxter, 28 Cal. 101; Tyler v. Green, Id. 408; Megerle v. Ashe, 33 Cal. 90. To establish this privity, he must show that he was a duly-qualified pre-emptioner according to law, at the time indicated above, and had fully complied with the laws of the United States at the time existing, requisite to acquire the right of preemption. Page v. Hobbs, 27 Cal. 483; Megerle v. Ashe, 33 Cal. 74; Quinn v. Kenyon, 38 Cal. 500; Burrell v. Haw, 40 Cal. 377. This he has not done. There is no evidence that he was not at the time of his settlement on the land in controversy the proprieter of 320 acres of land in some state or territory of the United States, or that he had not quit or abandoned his residence on his own land to, reside on the public land. In absence of proof of these facts, defendant cannot be regarded as of the class of persons entitled to pre-empt.

In this condition of the testimony, by giving this instruction the jury would have been directed to find on an issue not in the case. As the defendant has not connected himself with the original and common source of title, he cannot show that the title is still in the United States, which would be the legal effect of proving that the land in controversy, when it was selected, was within a then existing reservation or withdrawal for the benefit of the Atlantic & Pacific Railroad Company. If the defendant was not in a position to attack the listing or patent to the state, neither was he in a position to at

1S. C. 5 Sup. Ct. Rep. 1141.

tack the patent of the state, unless he had shown that he was in some way in privity with the state, which he did not attempt to do. Further, the evidence shows that the plat of the survey of the township containing the land in controversy was filed in the proper district land-office on the thirteenth of June, 1872. Tapia filed his declaratory statement the twentieth of December, 1873. The statute of the United States required that the pre-emption right claimant should file his declaratory statement within three months from the date of the receipt at the district land-office of the approved plat of the township, embracing his pre-emption settlement. See act of Congress of March 3, 1853, to provide for the survey of public lands in California, § 6; section 2266, Rev. St. U. S. The plat of survey to the land-office comes approved from the surveyor general's office or the general landoffice at Washington, and we shall assume that it was filed as soon as received, and that the day of receipt and filing are the same. It appears, then, that the defendant did not file his declaratory statement until more than 18 months after the date of receipt of the plat of survey, and more than 15 months after he was required by law to make such filing.

If the state made its selection of the land in controversy on the first day of October, 1873, as would seem to be indicated by the words "located by state of California, October 1, 1873," in the certificate of William R. Wheaton, register, found in the record, then the filing of Tapia came too late to affect the claim of the state. Page v. Hobbs, 27 Cal. 483; Megerle v. Ashe, 33 Cal. 82, 83; Poppe v. Athearn, 42 Cal. 606. The claim of the state was then prior in point of time, and by reason of such priority its title derived by the listing in 1877 would be superior in right. The same would be the case as to the title of plaintiff here deriving title by patent from the state. It follows from the foregoing that the order denying the new trial herein must be reversed.

A point is made by plaintiff as to the mode in which this case was tried. Counsel say that there were legal and equitable issues in the case; that these issues were submitted to a jury, who rendered a general verdict for defendant, on which judgment was entered. It is urged that the mode in which the trial was had was irregular in this, that the equitable issues should have been first tried, and that for this irregularity there should be a reversal. We do not think that this point can be urged in this court, on the record as it now stands, as the facts on which the point is based do not appear in a bill of exceptions or statement; but as the cause goes back for a new trial, we think it best to say that on such new trial the equitable issues, if not withdrawn, should be first tried, as directed in Martin v. Zellerbach, 38 Cal. 300.

Order reversed, and cause remanded for a new trial.

We concur: MYRICK, J; MORRISON, C. J.

(68 Cal. 203)

In re SMITH. (No. 9,254.)

Filed December 19, 1885.

1. INSOLVENCY-RIGHT TO DISCHARGE-JURISDICTION.

Where an insolvent has been refused a discharge from his debts in a proceeding in bankruptcy in the federal courts, the state court cannot, under the California insolvency act of 1880, grant him a discharge from the same debts. 2. SAME-DISCHARGE OF INSOLVENT-PRIOR BENEFIT OF ACT.

Under the California insolvent act of 1880, no discharge can be granted if the debtor, in case of voluntary insolvency, has received the benefits of that or any other act of insolvency or bankruptcy within three years next preceding his application for discharge.

Department 1. Appeal from superior court, city and county of San Francisco.

Williams & Bixler, for appellant.

G. F. Gordon, E. B. Young, and H. G. Platt, for respondent.

Ross, J. That the judgment of the court below granting the petitioner a discharge from his debts is erroneous is clear. The debts from which he sought to be discharged by the proceedings in the court below, which were had under the state insolvency act of 1880, were incurred and were existing prior to August 30, 1878. On that day this petitioner filed a petition in the district court of the United States in and for the district of California, praying to be adjuged a bankrupt pursuant to the provisions of the then bankrupt act of the United States, and to be discharged from his debts provable thereunder; and such proceedings were had that on the thirty-first day of August, 1878, the petitioner was duly adjudged a bankrupt by the said district court, and subsequently an assignee of his estate duly appointed, to whom all the property of the bankrupt was duly assigned. In due course of proceedings, the petitioner filed a petition for a certificate of final discharge, which, coming on regularly to be heard, was by the court denied, and judgment entered accordingly. It is well settled that the jurisdiction acquired by the United States district court in the matter is exclusive. The judgment appealed from purports to discharge petitioner from debts from which the United States court, having jurisdiction of the matter, refused to discharge him. It is clear that the state insolvency act affords no warrant for such a judgment, nor, indeed, for any of the proceedings on the part of the petitioner. One of the provisions of that act is that the petitioner shall surrender his property, books, etc., for the benefit of his creditors. But petitioner took his property to another forum, and comes here to be discharged from his debts. Besides, the insolvent act of 1880 in terms provides that no discharge shall be granted if the debtor, "in case of voluntary insolvency, has received the benefits of this or any other act of insolvency or bankruptcy within three years next preceding his application for discharge."

v.8P,no.13-56