8 east, Mount Diablo base and meridian, in the State of California. Bugbey claimed title by grant from the State, and the company under the Act of Congress of March 3, 1853, "to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes," (10 Stat. 244), and the Act of July 29, 1866, "granting the right of way to ditch and canal owners over the public lands, and for other purposes." (14 Stat. 251.)

The decision of the Supreme Court of California having been against the title set up by the company, this writ of error was brought. The facts affecting the federal question in the case are as follows:

In 1851 the company commenced the construction of a canal upon the unoccupied and unsurveyed public lands of the United States for the purpose of supplying water to miners and others. This canal was completed at large expense in April, 1853, and the premises in controversy are included within its limits. By the Act of March 3, 1853 (10 Stat. 244), Congress provided for the survey of the public lands of California, and granted sections 16 and 36 to the State for school purposes. By Section 7 of this Act it was provided, "that where any settlement by the erection of a dwellinghouse, or the cultivation of any portion of the land, shall be made on the sixteenth and thirty-sixth sections, before the same shall be surveyed, other land shall be selected by the proper authorities of the State in lieu thereof, agreeably to the provisions of the Act of Congress, approved May 20, 1826. (4 Stat. 179.)

* * * "9

* * *

The survey of the lands in controversy was completed May 19, 1866, and the plats deposited in the United States Land Office for the district June 16, 1866. At that time Bugbey was an actual settler upon the legal subdivision of the section sixteen in which the premises are situated, and had thereon a dwelling-house, and agricultural and other improvements. He made no claim under the pre-emption laws of the United States. Other persons were also in possession of other portions of the section. The Act of 1853 required (Sec. 6), that "where unsurveyed lands are claimed by pre

emption, the usual notice of such claim shall be filed within three months after the return of the plats of the surveys to the Land Offices." On the 28th of September, 1866, the Register of the United States Land Office certified to the State Land Office that no claim had been filed to this section sixteen, except the pre-emption of Hancock, which was afterward abandoned.

Sec. 9 of the Act of July 26, 1866 (14 Stat. 253), is as follows: "That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, the decisions of the courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed * * * "" The company has brought itself within the provisions of this section, if at the time of the passage of the Act the United States held title to the lands.

On the 22d of April, 1867, Bugbey purchased the portion of the section on which the premises in controversy are situated, from the State of California, and took a patent. The company does not in any manner connect itself with this title or with that of any other occupant of the section previous to the survey.

In Sherman vs. Buick (93 U. S. 209), it was decided that the State of California took no title to sections 16 and 36, under the Act of 1853, as against an actual settler before the survey, claiming the benefit of the pre-emption laws, who perfected his claim by a patent from the United States. In such a case the State must look for its indemnity to the provisions of Section 7 of the Act. As against all the world, except the pre-emption settler, the title of the United States passed to the State upon the completion of the surveys, and if the settler failed to assert his claim or to make it good, the rights of the State became absolute. The language of the court is (p. 214), "These things [settlement and improvement under the law] being found to exist when the survey

ascertained their location on a school section, the claim of the State to that particular piece of land was at an end; and it being shown in the proper mode to the proper officer of the United States, the right of the State to the land was gone, and in lieu of it she had acquired the right to select other land agreeably to the Act of 1826."

In that case the controversy was between the settler, who had perfected his title from the United States, and a purchaser from the State. Here the company does not claim under the settler's title, but seeks by means of it to defeat that of the State, and thus leave the land in a condition to be operated upon by the Act of July 26th. The settler, however, was under no obligation to assert his claim, and he having abandoned it, the title of the State became absolute as of May 19, 1866, when the surveys were completed. The case stands, therefore, as if at that date the United States had parted with all interest in and control over the property. As the Act of July 26th was not passed until after that time, it follows that it could not operate upon this land in favor of the company.

This disposes of the only federal question in the record, and the judgment is, consequently, affirmed.

U. S. Supreme Court Abstracts.

EVIDENCE.

Parol testimony to vary written instrument: showing absolute deed to be a mortgage.—The rule which excludes parol testimony to contradict or vary a written instrument has reference to the language used by the parties. That can not be qualified or varied from its natural import, but must speak for itself. The rule does not forbid an inquiry into the objects and purposes of the parties in executing and receiving the instrument. Thus it may be shown that a deed was made to defraud creditors, or to give a preference, or to secure a

loan, or for any other object not apparent on its face. These purposes and objects are always considered by a court of equity, and constitute the principal grounds of its jurisdiction, which is exercised to give effect to them, or to restrain them so as to prevent fraud or oppression, and to promote justice. Accordingly, a deed, absolute in form, and recorded as such, may be shown to be a mortgage by parol testimony. Decree of Supreme Court of District of Columbia reversed. Peugh, appellant vs. Davis.

Burden of Proof-Negative Allegation. - When a negative allegation involves a criminal neglect of duty, official or otherwise, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it, for in these cases the presumption of law, which is always in favor of innocence and quiet possession, is in favor of the party charged. Accordingly, in an action against a collector of customs duties to recover for an alleged illegal exaction of duties, held, that it devolved upon the plaintiff to make out his case by showing the illegality complained of. Judgment of U. S. Circuit Court, S. D. New York. Arthur, plaintiff in error, vs. Unkart. Opinion by HUNT, J.

TRUSTS.

When court will not remove trustee: mutual ill-will between trustee and cestui que trust.-Complainant brought her bill in chancery to have defendant removed from his place as trustee in a deed made to secure to her the payment of a bond for $38,000, which was in defendant's possession, and which she prayed might be delivered to her. Defendant asserted a lien on the bond for $5,000 for legal services rendered to complainant. Held, (1) that while in a case where the trustee has a discretionary power over the rights of the cestui que trust, and has duties to discharge which necessarily bring him into personal intercourse with the latter, a state of mutual ill-will or hostile feeling may justify a court in removing the trustee, it is not sufficient cause where no such intercourse is required and the duties are merely formal and ministerial, and no neglect of duty or misconduct is es

tablished against the trustee. Decree of Supreme Court of District of Columbia reversed. McPherson vs. Cox. Opin

ion by MILLER, J. WAITE, C. J., dissented.

2. Contract as to payment of lawyer for services when not champertous nor void under statute of frauds.-A contract to pay a specified sum of money to a lawyer for his services in a suit concerning real estate out of the proceeds of said land when sold by the client, if recovered, is not champertous, because he neither pays costs nor accepts the land or any part of it as his compensation. Nor is it void under the statute of frauds because not in writing, for it may be performed within the year. Ib.

3. Lien of attorney on securities in his hands for services.-The land being recovered in the action in which the attorney was employed, and sold by the owner for $38,000, for which a bond was taken and left with the attorney, he has a lien on the bond for his fee, both by express contract and by reason of the lien which the law gives an attorney on the papers of his client left in his hands, for any balance due him for services. Ib.

4. Attorney also trustee: lien of, on trust securities.-Where, under the circumstances mentioned, the client brings a bill in chancery to remove the attorney from his position as trustee in a deed to secure the purchase-money and for a delivery of the bond, it is the duty of the court to decide on the existence and amount of the lien set up by the attorney in his answer, and to decree the delivery of the bond on payment of amount of the lien, if one be found to exist. Ib.

Practice: failure to file cross-bill.-Though the defendant, by neglecting to file a cross-bill, can have no decree for affirmative relief, it is proper that the court should establish the conditions on which the delivery of the bond to complainant, according to the prayer of the bill, should be made, and require it to be done on that condition being complied with. Ib.