FRAUDULENT CLAIM AGAINST UNITED STATES CORPUS-WHAT REVIEWED. 1. Rev. St. U. S. § 5438, makes it unlawful for any person to present for payment or approval to any officer in the service of the United States any claim against the United States, knowing such claim to be false, fictitious, or fraudulent. Act March 3, 1891, § 14, creates the court of private land claims, and authorizes it to render judgment against the United States for the value of lands which the United States may have granted or sold belonging to a claimant, and provides that such judgment shall be a charge on the treasury of the United States. Held, that a fraudulent claim presented to the court of private claims is within section 5438. Smith, C. J., and Collier, J., dissenting. 2. Where the committing court had jurisdiction of defendant and of the offense charged, the commitment will not be reviewed on habeas corpus. Smith, C. J., and Collier, J., dissenting. Application of James Addison Peraltareavis for a writ of habeas corpus. Denied. Catron & Spiess, for petitioner. J. B. H. Hemingway, U. S. Atty., and Matt. G. Reynolds, U. S. Atty. for court of private land claims, for the United States. BANTZ, J. The prisoner was committed to jail, after a preliminary hearing, on the charge (1) of filing in the court of private land claims a claim against the United States in the sum of $100,000, said claim being false, fictitious, and fraudulent, and known by him to be such at the time; and (2) that he entered into a conspiracy with one Sofia Treadway to defraud the government of the sum of $100,000 in respect to such claim. If the claim had been one for land simply, it is conceded that it would not have been an offense within section 5438, Rev. St. U. S. The material part of that section is as follows: "Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who enters into any agreement, combination, or conspiracy to defraud the government of the United States, or any department or officer thereof, by obtaining or aiding to obtain the payment or allowance of any false or fraudulent claim, * * * every person so offending." etc. Then follows punishment. The information contains two charges: First, presenting a fraudulent claim; and, second, conspiracy to defraud. By section 14 of the act of March 3, 1891, creating the court of private land claims, express authority was given that court to render judgment against the United States for the value of the lands which the United States may have granted or sold belonging to the claimant, "and such judgment when found shall be a charge on the treasury of the United States." The information specifically avers that the prisoner made a money claim against the United States. The section under which this prosecution was begun (5438) requires that the fraudulent claim shall have been made to some person or officer in the civil, military, or naval service of the United States. It is, among other things, denied that the court of private land claims comes within this description. In U. S. v. Moore, 3 MacArthur, 227, Judge MacArthur said that a claim presented against the United States in the court of claims was not presented to a person or officer within the meaning of this act; but the other judges did not concur in that opinion, and it was pure obiter dictum. The point arose in U. S. v. Strobach, 48 Fed. 908, in a prosecution against a deputy marshal for presenting an account for approval to the district court, and Justice Woods said: "The contention of counsel for defense is that the law only punishes for presentation to a person or officer in the civil service of the United States of a false claim, and, when a false claim is presented for approval to the district court of the United States in which the district judge is presiding, that that is not a presentation thereof to an officer in the civil service of the United States. In other words, that a United States judge in vacation, and when not engaged in the discharge of his usual duties, is an officer in the civil service of the United States, but when engaged in holding the term of court he ceases to be an officer in the service of the United States, and his identity as such is lost, and he is only a court or a member of a court. We think that a United States judge is at all times an officer in the civil service of the United States, within the meaning of the statute, and that, when a claim is presented to a court of which he is the presiding officer, it is presented to an officer in the civil service of the United States." It may be observed that there is no revising power over the action of the court by the treasury officials in relation to witness and jury fees and mileage. There is, however, in this case, the charge of conspiracy to defraud the government by means of a false, fraudulent, and fictitious claim. This proceeding by habeas corpus is a collateral attack upon the proceedings upon which the prisoner was committed to jail. In Ex parte Siebold, 100 U. S. 371, Mr. Justice Bradley, speaking of the limitations of the jurisdiction of the supreme court on habeas corpus which arise from the nature and objects of the writ as defined by the common law, lays down the general rule that the only ground 2 which that court, or any court, without special statute authority, will give relief on habeas Nor corpus, is where there is want of jurisdiction over the person or the cause, or some other matter rendering the proceedings void, as distinguished from what is merely erroneous and reversible. The writ is not to be employed to take the prisoner away from the court which holds him for fear, if he remains, errors may be committed. Ex parte Crouch, 112 U. S. 178, 5 Sup. Ct. 96. can it be used to subserve the purposes of the writ of error, and it will not be granted to review the whole case, but only to examine the authority of the tribunal by which the prisoner was committed. Ex parte Virginia, 100 U. S. 339. It has been said that the test of jurisdiction is whether the tribunal has power to enter upon the inquiry, and not whether Its conclusions in the course of it were right or wrong (Otis v. Rio Grande, 1 Woods, 279, Fed. Cas. No. 10,613), unless, indeed, some punishment is inflicted which the tribunal had no authority to impose. The prisoner's counsel conceded at the bar that the commissioner who held the preliminary examination of and committed the prisoner to custody had jurisdiction of the person and the subject-matter; but it has been earnestly and ably contended that the information charged no offense against the prisoner on which he could be imprisoned or deprived of his liberty. This point was considered in Ex parte Siebold, 100 U. S. 371, and the language of Chief Baron Gilbert in Bushell's Case, Vaughn, 135, was quoted, that "if the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge." Mr. Justice Bradley, commenting, observes: "The latter part of the rule, when applied to conviction and sentence, is confined to cases of clear and manifest want of criminality in the matter charged, such as, in effect, to render the proceedings void." It is true that in Ex parte Siebold there had been a conviction and sentence, but, if the objection be not jurisdictional, neither would the commitment be open to collateral attack by habeas corpus. In Re Coy, 127 U. S. 731, 8 Sup. Ct. 1263, it was strongly insisted that no offense under the act of congress was set out in the indictment, and that the prisoner should be released on habeas corpus. Mr. Justice Miller says: "It was certainly not intended to say [in Ex parte Watkins, 3 Pet. 193] that because a federal court tries a prisoner for an ordinary common-law offense, as burglary, assault and battery, or larceny, with no averment or proof of any offense against the United States, or any connection with a statute of the United States, and punishes him by imprisonment, that he cannot be released on habeas corpus because the court which tried him had assumed jurisdiction. In all such cases, when the question of jurisdiction is raised, the point to be decided is whether the court has jurisdiction of that class of offenses. If the statute has invested the court which tried the prisoner with jurisdiction to punish a well-defined class of offenses, as forgery of its bonds, or perjury in its courts, its judgment as to what acts were necessary under those statutes to constitute the crime is not reviewable on a writ of habeas corpus." "We are not here to consider it as on a demurrer before trial, but, finding that the district court had general jurisdiction of this class of offenses, we proceed no further in the inquiries on that subject." And he cites with approval Yarbrough's Case, 110 U. S. 651, 4 Sup. Ct. 152. This seems to be within the rule laid down by Judge Folger in Hunt v. Hunt, 72 N. Y. 229, who defines jurisdiction of the subject-matter to be "the power to adjudge concerning the general question involved." In Ex parte Parks, 3 U. S. 18, it was held that an indictment could not be collaterally attacked, on habeas corpus, which alleged the forgery of a re ceipt of a register in bankruptcy, though the statute covered the forgery of certain evidenciary documents. See, also, Hauser v. State, 33 Wis. 678, and Ex parte Harlan (Okl.) 27 Pac. 920. If the prisoner can attack the sufficiency of an information and commitment thereon, like the present, by habeas corpus in this court in advance of his trial in the district court, so may prisoners confined in the jail of every county in the territory attack the sufficiency of indictments against them by habeas corpus in this court, instead of employing a demurrer or motion to quash in the court below. Under such circumstances, the supreme court of the United States have refused to interfere. In re Lancaster (1890) 11 Sup. Ct. 117; Ex parte Frederich, 149 U. S. 70, 13 Sup. Ct. 793. We are of the opinion that the commitment was issued in the exercise of the jurisdiction of the subject-matter, and that a sufficient cause is set forth upon which the prisoner should be held. HAMILTON and LAUGHLIN, JJ., concur. COLLIER, J. (dissenting). I am constrained to express my dissent from the conclusion reached by the majority of the court upon this application for a writ of habeas corpus. Such a writ is so sacred to the law, it is such a great writ that it is to be considered like the palladium of liberty, and no question of courtesy, comity, or propriety should for a moment be entertained when it is applied for to a court having jurisdiction to issue it. It is the freeman's writ, and any suggestion of its denial to an American citizen illegally restrained of his liberty seems in conflict with the genius of our institutions. To the argument which proposes hesitation in ts issuance because of propriety between courts, or because of propriety for any other reason, in time of peace, an American grown to the stature of these institutions is instinctively opposed. No man should be considered a criminal of so dark a dye, or should be able to defraud his government or his neighbor in so outrageous a manner, that any court could be induced to inflict injury to the vital principle that every inhabitant of this broad land shall breathe the free air of liberty until he is restrained according to law. It is one of the chiefest praises of the judiciary that, no matter how fiercely popular passion may rage, how red-handed a murderer may be, or how otherwise extreme any violation of law may be considered, it sits in calm deliberation to enforce the law and to make an offender's act become a beacon light in the illumining of liberty's path, instead of creating a precedent for the oppression of its followers. I therefore think that the argument that this court should withhold this writ, when our organic act gives jurisdiction to issue it, because petitioner should have applied to the judge of the district court, or because his alleged monumental and historical fraud calls grievously for redress, is unworthy of a moment's consideration. No less opposed to the spirit of our law is the doctrine that, by implication and inference, reason may bring within the scope of a criminal statute offenses to which its letter does not extend. It has ever been held, under the common law and in this country, to be a cardinal principle in the expounding of criminal statutes that they should be read "in favorem vitæ et libertatis," and strictly as against the state. All construction and intendment are against the government and in favor of the accused, though not to the extent of emasculating or destroying a statute. The statute under which the accused is charged has a range very broad and comprehensive, and an utility distinctly manifest, even though it should be held not to reach the character of act described in the complaint upon which petitioner has been arrested and is now detained. No one will dispute that section 5438 of the United States Revised Statutes covers the presentation of false claims against the government for approval and payment by any officer or person given the authority to approve or pay the same, when the scienter is properly laid and proved. The question here is whether or not a suit begun in the court of private land claims, established by act of congress passed March 3, 1891, comes within the purview of said section, where it appears that plaintiff recites in his petition that land within the exterior boundaries of an alleged grant claimed by him has been disposed of by the United States, and he claims the maximum per acre so disposed of. It is conceded by the attorney for the United States that but for said feature of the claim for land there could be no pretense that section 5433, Rev. St., would have any application whatever to the case at bar; and this court in its opinion also proceeds upon that theory. It seems to be minimizing substantials and magnifying accidentals to hold that this section, not otherwise applicable, becomes so by the presence of a provisional money feature in the suit. This feature, if it should ever become material in the litigation begun by the petitioner, becomes so because of acts affecting the petitioner in invitum, and done not by his procurement or consent, and possibly without his knowledge. This pecuniary feature only becomes material after the land sued for has been "decreed." In other words, when plaintiff's exterior boundaries shall have been adjudicated to him, he can obtain patent only to so much, above what the government has the right to pay him for at $1.25 per acre, as he recovers, so that it, the government, may keep faith with those to whom it has already sold and granted some portions of claimant's land. But the principle here involved rises above what, with respect to my associates, I deem a consideration too small for their intelligent attention; and this decision may, I fear, become a precedent for statutory construction harmful in the extreme. There can be no question here of collateral attack, if no offense is charged, and I would wish no other authority than the one cited by the court of Ex parte Siebold, 100 U. S. 371: "A court will give relief on habeas corpus where there is want of jurisdiction over the person or the cause or some other matter rendering the proceedings void." If no offense is charged, is there any "cause"? If there is no offense charged, are not the "proceedings void" as to every step? Also, I would cite the very case the opinion of this court rests on, as refuting the position that section 5438, Rev. St., refers to any such class of case as the bringing of a suit either in a constitutional or a legislative court for adjudication, judgment, or decree. U. S. v. Strobach, 48 Fed. 903. The compiler of that volume states the full force and effect of that case in the fifth syllabus as follows: "Although the act of a federal judge in passing upon the accounts of a United States marshal in open court, as required by Act Cong. Feb. 22, 1875, is, in a sense, the act of the court, yet, as his decision is subject to revision by the accounting officers of the treasury, it is only quasi judicial, and therefore a presentation to him is a presentation to an officer in the civil service of the United States, within the meaning of section 5438." It is "sticking in the bark" with due respect I say it-to draw any other conclusion from that decision, and, indeed. the whole argument of the learned justice is an effort to avoid a result on demurrer which would have overturned the indictment, by showing that "open court" meant, in the statute there construed, a court in quasi judicial matters only. No one can, I venture to say, carefully read that decision, without arriving at the conclusion that Judge Woods believed that in matters judicially determined section 5438 has no application whatever. It shocks our understanding to say that one of the three co-ordinate branches of this government a court created, not for the ap proval of claims, but to adjudicate them, and, when adjudicated, to enforce them-is "a person or officer in the civil service" of the government. The court is itself civil serv ice, and those who serve in it are officers and persons in the civil service; that is, in its service. This opinion being prepared on the day the majority opinion was submitted to me, then to be handed down, I am not given opportunity for more elaborate discussion of a decision which, I think, makes the most damaging precedent yet emanating from this court. I am authorized to say that the chief justice concurs in this dissent; but the views above expressed have not been submitted to him. 1. A mechanic's lien law should be liberally construed in favor of the lienor. Finane v. Hotel, etc., Co., 5 Pac. 725, 3 N. M. 256, overruled. 2. Comp. Laws 1884, § 1524, requiring a claim of lien to state the lienor's demands after "deducting all just credits and offsets," is satisfied by a statement that the lien is a certain sum, the balance due, after deducting all just credits and offsets, for work done under a contract which is made part of the notice, and for an additional sum for extra work allowed by the terms of the contract. 3. Under Comp. Laws 1884, § 1524, requiring a notice of lien to state the name of the "owner or reputed owner, if known," a notice which states that certain corporations and individuals are "the owners or reputed owners" of the property is sufficient. 4. Under Comp. Laws 1884. § 1524, requiring a notice of lien to state the name of the person by whom claimant was employed, a notice of lien for constructing an irrigation ditch, which states that claimant was employed by a corporation through its general manager, with the approval of its president, naming each, is sufficient. 5. Comp. Laws 1884, § 1524, requiring a notice of lien to contain "a statement of the terms, time given, ard conditions of his contract," is satisfied by a notice which refers to the contract, in which these facts are stated, for such facts, and makes the contract a part of the notice. 6. Under Comp. Laws 1884, § 1524, requiring a notice of lien to contain "a description of the property to be charged with the lien sufficient for identification,' a notice of lien for the construction of an irrigation ditch, which gives a description of the ditches, laterals, reservoirs, and right of way such as would enable one familiar with the locality to survey and plat the same is sufficient. 7. Under Comp. Laws 1884, § 1524, requir ing a notice of lien to contain "a description of the property to be charged with the lien sufficient for identification," a description of land sought to be charged with the lien by government subdivisions is sufficient. 8. Comp. Laws 1884, § 1529, provides that any improvement mentioned in section 1520 (giving a lien for labor or materials furnished in construction of ditches and other improvements made on land) will be deemed to have been made at the instance of the owner unless, when in formed that the work is being done, he posts a notice that he is not responsible for the same. Held, that a contractor for the construction of an irrigation ditch was entitled to a lien on land appurtenant to the ditch, which was increased in value by the ditch, where it appears that his employer, by contract with the owner, was to receive a portion of the proceeds of such land when sold at an enhanced price after the construction of the ditch, and that the owner consented to the construction. 9. An objection to a notice of lien for insufficiency in the statement of claim cannot be urged for the first time on appeal. 10. Where, in an action to foreclose a mechanic's lien on 22,000 acres of land for construction of an irrigation ditch, defendant admits that the land is appurtenant to the ditch, and then describes it by government subdivisions, such defendant is estopped from asserting, after judgment of foreclosure, that the subdivisions contain more than 22,000 acres of land. 11. Where, in an action to foreclose a lien on a certain number of acres of land, the notice describes the same by government surveys, the court, in the absence of proof, may assume, on a showing that government subdivisions of the class mentioned contain a larger number of acres than that named, that the decrease in the number of acres in the divisions in question could be accounted for by rules of government surveying. 12. Where a notice of lien on land specifies the number of acres, and then describes them by government subdivisions, the latter description controls, though there be in them in fact a larger number of acres than that stated in the notice. 13. Where a contractor constructing an irrigation ditch agrees to select a tract of land and pay a certain sum tor it, which is to be credited as part payment of the work on condition that his employer secures a sufficient deed from the owner to himself, teader of a sufficient deed to the contractor by his employer must be shown. 14. Where a contract provides that payment shall be made for work on final estimate and certificate of an engineer approving the work, and a showing that the work is free from all liens, and, after the final estimate is made and the certificate procured, the contractor, being refused payment, files his lien, the fact that subcontractors subsequently file liens for work will not defeat the contractor's lien. 15. Comp. Laws 1884, § 522, directs the territorial courts to conform to the laws and usages of the federal courts. Equity rule 92 authorizes a personal judgment. in foreclosure of a mortgage, for the balance due complainant over and above the proceeds of sale. Held, that a decree for foreclosure of a mechanic's lien, providing that the decree shall operate as a personal judgment against each of the defendants, is proper. 16. Findings of fact by a chancellor on testimony in the first instance will not be disturbed unless it clearly appears that such findings are against the weight of the evidence. Appeal from district court, Colfax county; before Justice O'Brien. Action by Patrick P. Ford against the Springer Land Association and others to foreclose a mechanic's lien. From a judgment for plaintiff, defendants appeal. firmed. Af This is an action in chancery, brought by Patrick P. Ford, appellee, against the Springer Land Association, and certain individuals corporate thereof, together with the Maxwell Land-Grant Company and its trustees, to establish, fix, and foreclose a mechanic's lien upon a certain ditch and reservoir system, rights of way therefor, and certain lands alleged to be appurtenant thereto, and it is founded on the following facts: On October 20, 1888, a contract was entered into between Patrick P. Ford, of the first part, and the Springer Land Association, of the second part, for doing the earth work in constructing a certain ditch line and reservoir system, for irrigation, all in the county of Colfax and territory of New Mexico, the provisions of which, so far as pertinent to this case, are as follows: The party of the first part to furnish all necessary tools and labor, and perform all work of excavating and grading required in the construction of the Cimarron ditch and its accessories. Said work to be done in a thorough and workmanlike manner, and in full accord with the specifications thereto attached, and made part of the contract. The party of the second part agreed to pay said party of the first part for the work so done at the rate of 11 cents per cubic yard for all earth removed, without classification; amounts due for said work to be paid at the time and in the manner described in the specifications thereto attached. "Specification 13. Subcontracts must be submitted to the engineer, and receive his approval, before work is begun under them. No second subcontracts will be allowed. Subcontractors will be bound by the same specifications as the original contractor, and will be equally under the authority of the engineer." "Specification 15. On or about the first day of each current month the engineer will measure and compute the quantity of material moved by the contractor during the preceding month. He will certify the amount to the company, together with an account of the same at the price stipulated, which amount will be audited by the company without unnecessary delay, and the amount thereof, less ten per centum, retained, will be paid to the contractor, in cash, within ten days thereafter. This retained percentage will be held by the company as a guaranty for the faithful completion of the work, and will be paid in full with the final estimate, upon the certificate of the engineer accepting and approving the work; it being expressly understood that the failure of the contractor to fulfill his obligations will mean a forfeiture of this retained percentage to the company. The amount due to the contractor under the final estimate will only be paid upon the satisfactory showing that the work is free from all danger from liens or claims of any kind. through failure on his part to liquidate his just indebtedness, as connected with this work." The land upon which the ditches and reservoirs were to be and were actually located and constructed, and upon which the improvements were actually made, did not belong to the said the Springer Land Association, or to any of the parties to the contract, or to their successors in interest, so far as appears from the record, but was at the time the property of the Maxwell Land-Grant Company, which was not a direct party to the contract. The Maxwell Land-Grant Company did, however, make a contract on the 1st day of May, 1888, with C. C. Strawn and his associates, who afterwards organized the Springer Land Association, by which the Maxwell Company gave it and its associates a right of way for the proposed irrigation system of ditches and reservoirs, and by which said agreement it was provided, among other things, that, with the view of selling certain of its lands at an enhanced value, and in consideration of certain perpetual water rights and franchises to be granted it by the other party, it agreed to set apart and reserve from sale about 20,000 acres of its lands, and to give the other party, the Springer Land Association, which succeeded to the rights of said Strawn and his associates under said contract, a certain portion of the proceeds which might be derived from the sale of the said lands, when sold. These lands were under the proposed ditch system, and to be irrigated by it. And by this agreement said Strawn and his associates agreed to expend about $60,000, or a sufficient sum to complete the enterprise on the proposed plan. The title to the lands at that time and at all times afterwards, so far as appears from the record, was in, and remained in, the Maxwell Company, except as to the rights acquired by Strawn and his associates and successors in interest under said contract. The same contract constituted and made Strawn and his associates and successors in interest the agent of the Maxwell Company to the extent of and for the purposes of carrying into effect the spirit and intent of the contract as to the sale of the said lands; but that party, the Springer Land Association, contracting with the appellee, Ford, had no other title in the lands than as given in that contract. Five days subsequent to the time the ditch contract was made, Ford entered into another contract with the Springer Land Association, by which he agreed to select and take one section of the land under the ditch system. at the stipulated price of $8,000, to be considered as part payment on the contract price for constructing the ditch system, and the Springer Association agreed to procure a deed to Ford from the Maxwell Company, free from all incumbrances. The work of construction proceeded under the Ford contract, and he let subcontracts to McGarvey, Dargle, and Haynes. Estimates, as provid ed by the contract, were made by E. H. Kellogg, the supervising engineer, from time to time, which were audited and paid by the Springer Association, up to about May, 1889, and the final estimates were made, including all balance alleged to be due on the contract, and for extra work, and presented about the middle of June of that year, and at the time the contract work was alleged to have been completed, amounting to $17,634.27 due on |