1. Appellant contends that, inasmuch as he bid the full amount of the decree, interest and costs, at a time when the mortgaged premises were duly offered for sale, and inasmuch as his bid was the highest and best bid offered for the premises, it became and was the duty of the marshal to have struck off the property to him as the legal purchaser of the same, and that the district court erred in denying his petition for the confirmation of the sale. On the 205*] other hand, the respondents *deny that any sale was ever made, and insist that the bid of the appellant was a mere offer of purchase, which he might withdraw at any time before the bid was accepted or the property was struck off to him, and an entry to that effect was made by the marshal.

Record also shows that the appellant applied | Payne v. Cave, 3 T. R. 148, where it was exto the court by petition on the 9th day of Octo-pressly held that every bidding at an auction ber, 1862, to have the sale confirmed to him is nothing more than an offer on one side until on his bid as increased to the full amount of it has received the assent of the auctioneer as the decree of the foreclosure and sale, but the the agent of the owner. Supreme court of court denied the prayer of the petition, and Pennsylvania held, in the case of Fisher v. from that order the petitioner appealed to this Seltzer, 23 Pa. 308, that a bidder at a sheriff's court. sale has a right to retract his bid before the property is struck down to him, and that the sheriff has no right to prescribe conditions which will deprive him of such a right. Express ruling was that a bid at an auction before the hammer falls is like an offer before acceptance, and that when the bid is withdrawn before it is accepted there is no contract, and that such a bidder cannot be regarded in any sense as a purchaser. Rule, as laid down in the last edition of "Story on Sales," is substantially the same as that adopted in the preceding case. Speaking of ordinary sales at an auction, the author says that the seller may withdraw the goods or the bidder may retract his bid at any time before they are struck off, and the reason assigned for the rule is, that so long as the final consent of both parties is not signified by the blow of the hammer, there is no mutual agreement to a definite proposition. Sug. Vend. & P. 25. But as soon as the hammer is struck down, says the same author, the bargain is considered as concluded, and the seller has no right afterwards to accept a higher bid, nor the buyer to withdraw from the contract. Rutledge v. Grant, 4 Bing. 653; Cooke v. Oxley, 3 T. R. 654; Adams v. Lindsell, 1 Barn. & Ald. 681; Story, Sales, § 461. Same rules prevail upon a sale under common-law process as in other cases of sales at pub*lic auction, so far as respects the ques- [*207 tion now before the court. Until the property is actually struck off to the bidder he may withdraw his bid as a mere offer or proposition. Crocker, Sher. 201.

2. Sales of mortgaged premises under a decree of foreclosure and sale are usually made in the Federal courts by the marshal of the district where the decree was entered, or by the master appointed by the court, as directed in the decree. Such sales must be made by the person designated in the decree, or under his immediate direction and supervision, but he may employ an auctioneer to conduct the sale if it be made in his presence. Express directions of the decree in this case were that the mortgaged premises should be sold at public auction, unless the respondents, as mortgagors, should, previously to such sale, pay to the complainants the amount of the mortgage debt, as specified in the decree.

3. Contracts for the purchase and sale of goods or lands at public auction are contracts founded upon mutual promises and a mutuality of obligation, and consequently they cannot be regarded as having been perfected and made binding unless they have received the consent of the parties. Consent of parties being essential to the contract set up in this case, it becomes important to ascertain in what way and to what extent such assent must be manifested, and to distinguish accurately between mere of fers or proposals by the one party not accepted or approved by the other, and mutual and positive engagements which neither party can retract or withdraw. Ad. Cont. (ed. 1857), pp.

23-154.

Unaccepted offers to enter into a contract bind neither party, and can give rise to no cause of action; as, for example, if one merchant offer to sell goods to another, such an offer is not binding until it has been in some form accepted by the party to whom it was made. Liability cannot arise in such a case, because the party making the offer cannot 206*] *be held answerable to the other for not selling the goods, unless that other, by accepting the offer, has bound himself to purchase.

4. Biddings at an auction, says Mr. Addison, are mere offers, which may be retracted at any time before the hammer is down and the offer has been accepted. Ad. Cont. (ed. 1857), 26. Leading case upon that subject is that of

5. Judicial sales made under the decretal orders of courts of chancery, are also, in this country, governed substantially by the same rules, except that such sales are usually made by the marshal, or a master in chancery acting as an officer of the court, and are always regarded as under the control of the court, and subject to the power of the court to set the sale aside for good cause shown, or open it any time before it has been confirmed, if the circumstances of the case require the exercise of that power. Doubtless such sales are usually conducted under the advice of the solicitor of the complainant, and it is sometimes said that the solicitor, in all questions arising between the vendor and purchaser, must be considered as the agent of all the parties to the suit; but it is believed that the remark must be received with some qualification. Dalby v. Pullen, 1 Russ. & M. 296. Suppose it to be so, however, in a qualified sense, still it is true that the marshal or master, as the case may be, is the officer of the court, and that as such his acts and proceedings are subject to the revision and control of the court. Collier v. Whipple, 13 Wend. 229. In sales directed by a court of chancery, says Judge Story, the whole business is transacted by a public officer, under the guidance and superintendence of the court itself. Even after the sale is made, it is not final until a report is made to the court and it

is approved and confirmed. Either party may and with an honest intention to perform his object to the report, and the purchaser himself, | duty. who becomes a party to the sale, may appear before the court, and, if any mistake has occurred, may have it corrected. He, therefore, becomes a party to the proceeding and may represent and defend his own interest, and may be compelled by process of the court to comply with the terms of the contract. Smith v. Arnold, 5 Mason, 420.

ing the circumstances, and act in good faith I

Com. v. Fowler, 10 Mass. 290; People v. Richardson, and note thereto, 4 Cow. 100; People v. Van Slyck, 4 Cow. 297; People v. Bankment, chiefly in the fact that it is presented by of Niagara, 6 Cow. 196; Atty. Gen. v. Barstow, 4 Wis. 568; § 4, page 93, Laws of Nebraska, 1857, "Informations;" People v. Ryder, 12 N.

Messrs. Frederick Billings and Charles O'Conor for plaintiffs in error.

Mr. Chief Justice Chase delivered the opinion of the court:

private individual, without the authority of the government, it could not be sustained, whatever might be the right of the prosecutor or the person claiming to exercise the office in question." In the case of The Miners' Bank v. It was ordered at the last term, that the mo U. S. 5 How. 213, on the relation of Grant, the information was filed in the name of the Unit- tion to dismiss the writ of error in this cause ed States in the district court of Iowa terri- stand over to the present term, in order that tory. The sufficiency of the information in the counsel might be heard on the question whether the judgment of the supreme court of this respect does not appear to have been questioned. A state court cannot issue a writ of Nevada, shown in the record, is a final judgmandamus to an officer of the United States. ment or decision reviewable here on writ of "His conduct can only be controlled by the error within the meaning of the act of Conpower that created him." McClung v. Silli-gress organizing the territory. This point has man, 6 Wheat. 605. The validity of a patent of the court on the motion for dismissal. now been argued, and I am to state the opinion for land issued by the United States "is a question exclusively between the sovereignty making the grant and the grantee." Field v. Sea-miss the writ at the last term, were three: bury, 19 How. 332, 15 L. ed. 654.

The grounds on which we were asked to dis(1) That the record was not filed in time by The judges of the supreme court of the terri- the plaintiffs in error; (2) that the interest tory of Nebraska are appointed by the Presi- in controversy was not capable of a money dent and confirmed by the Senate of the United in the meaning of the statute, of $1,000, the valuation; and therefore not of the value, withStates. The people of the territory have no amount necessary to give jurisdiction to this agency in appointing them and no power to remove them. The territorial legislature cannot court; and (3) that the jurisdiction of this prescribe conditions for the tenure or loss of court, if it ever had any, was taken away by the office. Such legislation on their part Union without any provision, saving the juristhe act admitting the state of Nevada into the would be a nullity. Impeachment and convic-diction vested in this court by the act organ

tion by them would be futile as to removal. The right of the territory to prosecute such an information as this would carry with it the power of a motion without the consent of the government from which the appointment was derived. This the territory can no more ac240*] complish in one way than in another. The subject is as much beyond the sphere of its authority as it is beyond the authority of the states as to the Federal officers whose duties are to be discharged within their respective limits. The right to institute such proceedings is inherently in the government of the We do not find that it has been delegated to the territory. We think the demurrer was well taken.

nation.

The judgment of the Supreme Court of the Territory is affirmed, with costs.

ERASTUS SPARROW et al., Plffs. in Err.,

V.

CHARLES L. STRONG.

(See S. C. 3 Wall. 97-105.)

izing the territory.

The omission relied on as the third ground for dismissal was supplied by act of Congress of February 27, 1865, which was held valid and effectual by this court1 at the last term. This ground, therefore, must be regard

ed as untenable.

The first ground is equally so. The writ of August, 1863, returnable at the next term of error was regularly sued out on the 14th of the court thereafter, and was duly served; a citation was also issued and served, returnable at the same term; and the writ and citation, with the record, were returned here and filed, and the cause docketed before the motion to dismiss. It has been repeatedly held that, in such a case, no motion to dismiss, under the ninth rule, can be entertained. Bingham v. Morris, 7 Cranch. 99; Wood v. Lide, 4 Cranch, 180; Pickett v. Legerwood, 7 Pet. 146; Owings v. Tiernan, 10 Pet. 24; Gwin v. Breedlove, 15 Pet. 284.

Nor do we think that the appeal should be dismissed for the second reason assigned by Practice on appeal-motion to dismiss writ of the defendant in error, namely, that the suberror-value of subject of controversy-ject of controversy is not of the jurisdictional final judgment, what is.

Where the writ and citation, with the record, were returned here and filed and the cause docketed before the motion to dismiss, no motion to dismiss, under the ninth rule, can be entertained.

A controversy concerning the possessory right to

a mining claim, does not relate to a subject-matter capable of being valued in money.

A judgment rendered by the supreme court of a territory, affirming the judgment or decree of a district court for the defendants in an action of ejectment, is one to review which a writ of error may be prosecuted.

On a motion to dismiss, the court will look to the regularity of the writ and the fact of jurisdiction. [No. 188.]

value. It is insisted that the matter in disthe mine exists has never been surveyed and pute is a mining claim; that the land where brought into market; and that, consequently, there can be no mining right to such land in any person, capable of being estimated in money.

It is true, that in the case of Lownsdale v. Parrish, 21 How. 290, 16 L. ed. 80, this court held that an obstruction to the enjoyment of land claimed under a law or regulation of a convention in Oregon, held without the sanction of the United States, and during the joint occupation of that country by Great Britain and the United States, was not an injury capable of being so valued as to give juriswhich the courts of the United States could take cognizance at all. But that decision was 1. Freeborn v. Smith, 2 Wall. 160, 17 L. ed. 922.

Argued Dec. 8, 1865. Decided Jan. 8, 1866.
N ERROR to the Supreme Court of the Ter-diction to this court; nor, indeed, an injury of

IN

ritory of Nevada.

Motion to dismiss.

The case is sufficiently stated by the court.

put distinctly on the ground that Congress, | act of territorial legislature, authorizing such when it came to act on the organization of appeals. Oregon, expressly declared that all laws theretofore passed in that territory, making grants 104*] of lands or otherwise affecting or en cumbering the titles to lands, should be and were thereby declared "null and void."

The claim, which the court was asked to protect, was asserted under a law thus declared null and void by the highest legislative authority. It was for this reason that the court refused to take jurisdiction in Lownsdale v. Purrish and dismissed the appeal.

The writ of error now before us relates to a very different subject of controversy. The territory, of which Nevada is part, was acquired by treaty. Rights and titles, acquired under ceding governments, remain unimpaired under our government. We cannot know judicially, therefore, that the right and title in controversy was not so acquired. If it was, it certainly may be capable of being valued in money. But if this were otherwise, we do know that in the act organizing the territory of Nevada there is no clause annulling grants or claims to land, while large legislative powers are conferred by the territorial legislature, limited | only, as to lands, by the prohibition of interference with the primary disposal of the soil by the United States, and of unequal taxation in certain cases. We know, also, that the territorial legislature has recognized by statute the validity and binding force of the rules, regulations, and customs of the mining districts. Laws of Nevada Ty., p. 16, § 40, and p. 21, 88 74, 77. And we cannot shut our eyes to the public history, which informs us that under this legislation, and not only without interference by the national government, but under its implied sanction, vast mining interests have grown up, employing many millions of capital, and contributing largely to the prosperity and improvement of the whole country. We cannot dismiss this writ of error, therefore, on the ground that a controversy concerning the possessory right to a mining claim, existing under the express sanction of the territorial legislature and the implied sanction of the national government, does not relate to a subject-matter capable of being valued in money. 105*] *As the questions, thus far considered, were argued at the last term, the motion would have been then disposed of had not doubts been excited by an inspection of the record, upon the point for the argument of which the motion was ordered to stand over. That point will now be determined.

On the 16th of March, 1863, the suprem court gave judgment in the cause as follows: "On appeal from the district court of the firs judicial district, in and for Storey county; now on this day, this cause being called and having been argued and submitted, and taken under advisement by the court, and all and singular the law and the premises being by the court here seen and fully considered, the opinion of the court herein is delivered by Turner, Ch. J., Mott, J., concurring, to the effect that the judgment alone be affirmed; wherefore it is now ordered, considered, and adjudged by the court here, that the judgment and decree of the district court of the first judicial district in and for Storey county, be and the same is affirmed, with costs."

It is insisted that this judgment is merely an affirmance of the order of the district court overruling the motion for new trial. If this be so, the judgment itself is, in substance and effect, nothing more; and it is settled (Doswell v. De la Lanza, 20 How. 29, 15 L. ed. 824; Henderson v. Moore, 5 Cranch, 12; Marine Ins. Co. v. Hodgson, 6 Cranch, 206; Barr v. Gratz, 4 Wheat. 220) that this court will not review such an order. The granting or refusing of new trials is a matter of discretion, with the exercise of which, by the court below, this court will not interfere. The circumstance that the discretion was exercised under a peculiar statute by an appellate court, and on appeal, cannot withdraw the case from the operation of the principles which control this court.

But the majority of the court does not feel at liberty to disregard the plain import of the terms of the judgment rendered by the supreme court of the territory. It does not purport to be an order or judgment affirming an order overruling a motion for new trial, but a judgment affirming the judgment or decree of the district court, and the only judgment or decree, which we find in the record, is the judgment for the defendants in the action of ejectment.

If this view be correct, the judgment of the supreme court is one, to review which a writ of error may be prosecuted. And the record shows that the writ has been regularly sued out and returned. This court, therefore, has jurisdiction, and it has been repeatedly held in similar cases (Minor v. Tillotson, 1 How. 288; Hecker v. Fowler, 1 Black, 95, 17 L. ed. 45) that, on a motion to dismiss, the court will look to the regularity of the writ and the fact of jurisdiction. Other questions must, in gen

On looking into the record, we find that on the 22d of May, 1862, a judgment in the nature of the judgment in ejectment, was regu-eral, await final hearing. larly rendered by the district court for the first district of Nevada territory, upon a ver dict in favor of the defendants in that action, now defendants in error here.

Subsequently a motion for a new trial was made. A statement embodying all the evidence was drawn up and agreed to by counsel, and upon this statement and some affidavits tending to show surprise on the trial and new evidence discovered after trial, the motion was argued before the district court. It was overruled, and from the overruling order an appeal was taken on the 15th of November, 1862, to the supreme court of the territory, under an

It follows that the motion to dismiss must be overruled.

ALEXANDER DUNCAN et al., Claimants of the Cargo of the Ship Anna Kimball, Appts.,

v.

EDWARD KIMBALL.

(See S. C. "The Kimball," 3 Wall. 37-46.) Lien on cargo of ship for freight-not waived by stipulation in charter-party in this case— notes, not payment of charter money.

The lien of the owner of a ship upon the cargo