something equivalent; or else it is plain that Congress has failed to authorize a levy for the last months of 1870, whatever it may have said about dividends in some other clause.

Now, I know of no authority which will authorize such an interpolation. It seems to me much more consistent with sound construction to reject the words "hereafter declared," or to make them yield a part of their meaning, and remain as surplusage, or nearly so; because all the dividends earned in 1871 would be declared after the passage of the act, while all the dividends thereafter declared can by no means be assessed for the year 1871. Indeed, to give to those words the force contended for, is to change and enlarge their sense into nearly the opposite of their original meaning. When written, they meant that the reduction of the tax should not be retrospective. As now proposed, they would mean that it shall not be too prospective. I cannot believe that it is permissible to supply a meaning for an act of Congress upon any theory of what they probably might be expected to intend, which would so twist this section as to read that on all dividends hereafter declared until the end of 1871, including all earned in 1871, there should be levied the tax. I come back, therefore, to the point which is in reality the gist of the case, that it is not the declaration of a dividend, but the earning of profits, that is the material thing, and that it is upon the profits earned in 1871 that the tax is imposed, and on none other. I have found my judgment enlightened and my opinion fortified by the decision and reasoning of McKennan, J., in Philadelphia & Reading R. R. Co. v. Kinney, 18 Int. Rev. Rec. 92, which sustains this construction of the statute.

Judgment for plaintiff for the amount of the second sum mentioned in the agreed facts, with interest at six per cent from July 31, 1871.*

[* Upon a similar case involving the interpretation of sect. 15 of the act of July 14, 1870, a majority of the United States Supreme Court, stating that "the ambiguous terms of the statute prevent the possibility of a satisfactory solution of the question presented," adopted "the construction practically placed upon it by the administrative department of the government;" and decided in favor of the tax. Blake v. Nat. Banks, 23 Wall. 321.]

NEW HAMPSHIRE DISTRICT.

MAY, 1874.

NOAH WOODS v. THE JACKSON IRON MANUFACTURING

COMPANY.

The provisions of a statute, so far as they are inconsistent with those of a subsequent statute relating to the same subject-matter, are by implication, if not expressly, repealed by the later statute.

Under the resolve of the legislature of New Hampshire, approved June 22, 1831, conveyances of State lands by a land commissioner may be recorded in the office of the Secretary of State at any time, and take effect only on being so recorded.

SHEPLEY, J. This is a real action, brought for the recovery of a tract of land containing eleven hundred acres, situate in Bartlett, in the county of Carroll, and State of New Hampshire. A stipulation is filed that the case shall be heard and tried by the court without the intervention of a jury, saving to either party the right of exceptions, writ of error, or appeal, according to law.

Both parties claim title under grant from the State of New Hampshire. It is admitted that the title was in the State of New Hampshire prior to July 2, 1835. The following act of the legislature of New Hampshire was approved June 25, 1830:

"An Act providing for the recording of deeds of State lands in the office of the Secretary of State.

"SECT. 1. Be it enacted by the Senate and House of Representatives in general court convened, that all deeds of land belonging to the State, which may hereafter be executed and delivered, by any officer or agent of the State authorized to make such conveyance, shall be recorded in the records of the State by the secretary; and no deed of conveyance, or lease of any lands, or of title or claim to any lands, in this State, shall be of any force or effect for the conveyance of the same, or for the release of any title or claim of the State, unless the

same shall have been recorded, as aforesaid, within one year from the date of the same."

The following resolve of the legislature was approved June 22, 1831: Chap. LI. "Resolved, by the Senate and House of Representatives in general court convened, that his Excellency the Governor, by and with advice and consent of the council, be, and he hereby is, authorized and empowered to appoint some suitable person or persons, not exceeding two, as land commissioners, who shall be sworn to the faithful performance of the duties of their trust, and to continue in office during the pleasure of the executive for the time being, whose duty it shall be to advertise and expose to sale such public lands as he or they may think proper, for the interest of the State; and, upon application made to any such commissioner by any person or persons for the purchase of any lands belonging to this State lying south of the forty-fifth degree of north latitude, to sell and convey to such person or persons any such lands for such consideration as to such commissioner or commissioners the interest of the State may seem to require; and to execute deeds thereof, which deeds, being first recorded in the office of the Secretary of State, shall be effectual for conveying all the right and title of this State to such land, saving the right of jurisdiction: Provided, that all the expenses of surveying and conveying any such lands shall be paid by the person or persons to whom such lands shall be conveyed; and said commissioner or commissioners shall receive from the amount of all sums of money arising from such sales, and which sums he or they shall pay to the treasurer of this State, the amount of six per cent in full compensation for his or their services. And be it further resolved, that it shall be the duty of each and every such commissioner so appointed to deposit all moneys by him received for such lands with the treasurer of this State as soon as may be after receiving the same, and shall annually in the month of June make report to the governor of this State of all lands conveyed and sold by him aforesaid, including the quantity and value thereof, where the same lies, and such other information as he may deem expedient."

At a meeting of the governor and council on the first day of July, 1831, James Willey, of Conway, was appointed land commissioner, and he was duly commissioned and qualified. On the third day of July, 1835, in consideration of $300 paid by

Daniel Eastman, of Conway, "James Willey, of Conway, in the county of Strafford, and State of New Hampshire, land commissioner, remised, released, and forever quitclaimed unto said Daniel Eastman, and his heirs and assigns forever, all the right, title, claim, and interest which said State now has in and unto the following described tract of public land, viz." (Here followed a description of the demanded premises by metes and bounds.) After the usual habendum clause, and a special covenant of warranty against "persons claiming by, from, or under me in my official capacity as land commissioner aforesaid," the deed concludes as follows: "In witness whereof I have hereunto set my hand and seal this third day of July, in the year of our Lord one thousand eight hundred and thirty-five.

"JAMES WILLEY, [SEAL] Land Commissioner."

The deed was duly witnessed and acknowledged. The consideration was paid by the grantee to Willey, and by him paid over to the State of New Hampshire. This deed was not recorded in the office of the Secretary of State for New Hampshire until June 28, 1837, nearly two years from and after date of the same. It was recorded in the Registry of Deeds for Coos County on the eighth day of July, 1835.

By sundry mesne conveyances through Jeremiah Eastman to Trickey and Meserve, and from them to one Odiorne, and from him to the Jackson Iron Manufacturing Company, whatever title Daniel Eastman had in the premises passed to the defendant on the twenty-sixth day of June, 1837.

The demanded premises have been taxed in the town of Bartlett to the grantees in the deeds under Daniel Eastman from 1636 to the present time, and from 1844 to the present time to the Jackson Manufacturing Company; and the defendant proved the payment of these taxes.

The tract is a mountain: some portion of it on the south side, where cattle can pasture; the rest is wild-land. Meserve and Trickey took a bond of the land Oct. 5, 1835, from Daniel Eastman, made a partial survey, and ascertained that iron ore was on the tract, and took out about one hundred pounds of the ore, which they took to Franconia and had tested. They then took their deeds of Eastman, and in March, 1836, surveyed the tract with compass and chain, and erected monuments. In May, 1837, Dr. Jackson went on to the tract with Odiorne, one of the

grantees, and explored it. In June, 1838, Meserve and Odiorne and others employed twelve men on the tract in uncovering another and different vein of the ore, and took out about a ton of the ore, which they sent to Dover to be tested. In 1842 Meserve and others went on to the tract with a Mr. Lang, of Boston, and Sanderson, of Sheffield, England. In the succeeding autumn they took out a ton of the ore, which was forwarded to Sheffield, England. In 1844 Mr. Parrott, of Boston, an engineer in the employment of the defendant corporation, surveyed a road leading through the woods up the side of the mountain about two miles, and extending about one hundred rods on to this tract, which road was built about that time. Mr. Meserve was the agent for the defendant corporation, and went on the tract every year after the conveyance to the Eastmans three or four times a year, sometimes oftener. In 1847 he went on with Mr. Coe, who went on to examine as agent of the defendant; also in 1848, with Pingree and Cowes, who were interested in the corporation. Ore was also taken from the tract in 1870 by him.

There has never been any adverse possession or exercise of any acts of ownership on the tract by any other persons than those claiming under the title under which defendant claims.

Plaintiff read from the public laws of the State of New Hampshire: "Chapter XLII., Joint Resolution in Relation to the Public Lands.

"SECT. 1. Governor authorized to sell lands: proceeds to be added to literary fund.

"Resolved, by the Senate and House of Representatives in general court convened:

“SECT. 1. That his Excellency the Governor be requested to investigate the condition of all the public lands belonging to the State, and that he is hereby authorized and empowered, with the advice of the council, to sell and dispose of the same, together or in parcels, as may be by him deemed most advantageous to the State; the proceeds of such sale or sales to be placed in the State treasury, and constitute a part of the literary fund, to be divided among the several cities and towns, and by them applied to the maintenance of common schools, or to other purposes of education as now provided by law, and that the treasurer be empowered to make and execute conveyances thereof, in accordance with the contracts of sale entered into by the governor." (Approved June 28, 1867.)