The right here is precisely analogous to those. The statute gives a new right, and if this case does not come within the rule before established by courts of chancery in regard to the points made, I think, under the statute, the remedy is so enlarged as to cover the case; and, as it now stands, the right can be enforced in a court of equity of the United States. The statute gives a new right,—an enlargement of the scope of the remedy; and, it being a case peculiarly of equitable cognizance, it can be enforced on the equity side of the court. Prof. Pomeroy regards the remedy as being enlarged by the statute, and, under the authorities, that it will be enforced by courts of equity. He comments upon the statute in the notes to section 1324, 3 Pom. Eq.

I am by no means certain that the case is not one for interpleader under the chancery practice as it originally existed before the enlargement of the scope of the remedy by statutory provisions. These are the elements laid down by Prof. Pomeroy, in his Equity Jurisprudence, required to justify an interpleader:

(1) The same thing, debt, or duty must be claimed by both." Both the Southern Development Company and Miner claim to be entitled to the certificate of deposit in question, and to receive the money that is due upon it.

"(2) All adverse titles or claims must be dependent, or derived from a common source." These claims all come from the same source, the original transaction between the development company and Silva; the rights of all depend upon the acts of Silva, and upon the acts of complainant dependent upon the acts of Silva. The development company claims that Silva obtained from it the ten thousand dollar check on the Bank of California by fraud, misrepresentation, and deceit, and therefore that the transaction is void, and that the party giving the check is entitled to it. Had Silva never parted with the check, and the contest been between him and the drawer, can there be a doubt that the claims would have come from a common source? If not, can passing the check to another, with notice, change the character of the act in this respect? Silva simply changed the check into a certificate of deposit amounting to $7,500, substituting one for the other, thereby not only committing a fraud. on the development company, if it be a fraud, but also on Wells, Fargo & Co. in obtaining the certificate of deposit. Miner is simply a claimant under Silva, and the latter only substituted one party, who is claimed not to be an innocent assignee, in the transaction for another, and one commercial instrument for another. They all, therefore, claim from the same source, and all the claims arise out of and are dependent upon the same act.

"(3) Complainant seeking relief must not have or claim any interest in the subject-matter." The complainants in this case claim no interest against either. They are ready to pay the money into court for the benefit of the party entitled to it. They stand neutral between the two parties.

"(4) He must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them in the position purely as stakeholder." I do not see how claimants stand in any other than a dependent position. Because they have issued a certificate of deposit it is claimed that they have entered into an independent contract. How independent? As the case now stands, they are liable only on the certificate. There is but one liability, and that is on the certificate. No party is entitled to recover against them, without returning that certificate properly indorsed. Should they pay the money to Miner, and it turn out that he is not entitled to receive it, they might be liable to complainant. But the liability would rest upon different grounds. Those grounds do not now exist, and there is at this time but one cause of action, and that is on the certificate. The only question then is, who is the owner of that certificate? The contest is as to this specific thing, this piece of commercial paper. There is no liability independent of that certificate. They are now liable on that, and on nothing else. How can this be an independent liability in the sense of the rule? It is true, Wells, Fargo & Co. became debtors, but only on the certificate. As before said, no recovery can be had against them, except upon this certificate of deposit. The title to the certificate of deposit is in issue here between these parties, and it is the only issue. The development company claim that they own it by reason of the fact that it was obtained from them by fraud; and Miner claims that he owns it, either because there was no fraud, or, if there was, because he is a bona fide holder for value without notice of the fraud. Complainants are not liable to both. It is a mere question as to who owns that certificate of deposit. That is the question at issue, and it is a matter of entire indifference to complainants which owns it. They are mere stakeholders. That question the claimants ought to litigate between themselves. The adverse claimants are the only ones to blame for the dilemma in which complainants are placed, and they ought to assume the burden of relieving complainants from the dilemma.

The defendants are liable on that certificate either to the development company or to Miner. They are not liable to both. They do not know which. That is the very thing to be ascertained. The doctrine relied on to deny an interpleader is that announced in Crawshay v. Thornton, 2 Mylne & C. 1, an English case, decided before the present system of practice in England went into effect. It is very doubtful in my mind whether that doctrine would be sustained at this time even in England. The observations of a number of English judges made subsequently to the decision of that case, and to the change of the law by statute, indicate that they repudiate the doctrine there announced, and regard the grounds on which the distinction is rested as being very narrow. The act of 1860, in England, like the provisions of the California Code of Procedure which I have just read,

has abolished the distinction taken in that case. The provision is similar to our statute. I presume our statute was adopted from the English act of 1860. I should be very much disposed to hold the case to be a proper one for interpleader, even if it stood on the ordinary principles of equity jurisprudence alone, without the aid of this act enlarging the equitable rights of parties in such cases. At all events, I am satisfied that by this act a new right was created, broad enough to reach the case, which can be enforced in this court.

I am satisfied, therefore, that it is a proper case for a bill of interpleader, and that the injunction should be granted. The motion is granted, on giving security in the sum of $10,000.

McEvoy and others v. HYMAN.

(Circuit Court, D. Colorado. November 25, 1885.

PUBLIC LANDS-MINING CLAIM-ISSUE OF CERTIFICATE PENDING LITIGATION. Where a suit in the circuit court to settle the title to a lode mining claim that has been dismissed by the clerk by order of attorney claiming to represent plaintiff is reinstated subsequently, but after such dismissal, and before reinstatement, defendant has renewed his application in the land-office and been allowed to enter the claim, and receive a certificate therefor, such certificate cannot have the effect to terminate the suit in the court.

On Motion for Judgment upon the Pleadings.

C. S. Thomas, for plaintiff.

H. M. Teller, for defendant.

HALLETT, J. August 10, 1881, defendant made application in the land-office at Leadville to enter and pay for a lode mining claim called "Durant," situated in Pitkin county, with a view to obtain title from the general government. In the time and manner specified in section 2325, Rev. St., plaintiffs made claim in the land-office to a part of the same ground under another location called by them "Little Giant." This action of ejectment was brought by them, November 7, 1881, in support of their adverse claim, as provided in section 2326, Rev. St. No trial of the issues joined in the action has occurred; but on the twenty-eighth day of January, 1885, the suit was dismissed by the clerk in vacation, under an order from attorneys claiming to represent the plaintiffs. Afterwards, and at the May term, 1885, plaintiffs, or some of them, appeared by other counsel, and moved to reinstate the case on the docket, on the ground that it was dismissed without authority from plaintiffs, or some of them, or from some persons who had acquired title to the property pending the suit. After hearing, that motion was allowed; and the cause now stands for trial on the jury calendar.

In a supplemental answer, filed at this term, defendant alleges that after the order of dismissal mentioned above, and before the

cause was reinstated on the docket, defendant renewed his application in the land-office, and was allowed to enter the claim; and a receiver's certificate was issued to him. This, he asserts, was by agreement with certain persons who had acquired title to the Little Giant claim since the suit was brought. Replying to this answer, plaintiff admitted the entry in the land-office, but denied that the persons mentioned in the answer had succeeded to plaintiff's title in the claim. From the circumstance that other persons not mentioned in the answer, or otherwise appearing of record, have applied to be substituted as plaintiffs in the action in the place of those now appearing, by whom the suit was brought, it may be inferred that the present plaintiffs have conveyed their title, and there is some dispute as to who are entitled to be recognized as grantees.

But that is not material to this inquiry, except as it may tend to show that the controversy exceeds the usual limits touching the validity of mining locations, and involves questions of ownership also. Upon the fact alleged in the supplemental answer, and admitted by plaintiffs, that entry was made in the land-office, and a certificate was issued to defendant for the claim, while the suit stood as dismissed under the clerk's orders. Defendant now moves for judgment, and the effect of that entry on this suit is the matter for present consideration.

No doubt is entertained as to the general rule on which defendant relies, that in actions at law a certificate of entry, like a patent, is conclusive of the title. As expounded by the supreme court, the rule obtains whenever officers of the land department are invested with judicial authority to decide the facts on which the title to the land in controversy may be obtained, and the patent or certificate of entry affords evidence of such decision. In such cases courts do not undertake to review the decisions of the land department of the government, and they are conclusive of the legal title in all courts, and in all forms of judicial proceedings, where this title must control. Johnson v. Towsley, 13 Wall. 72.

In this case, however, and when considered with reference to the time and circumstances attending its issuance, the certificate of entry on which defendant relies cannot be of such weight, because the suit is directed to the very matter which is said to be concluded by the certificate of entry, and the officers of the land department had not jurisdiction of the controversy between the parties. The statute is that upon filing an adverse claim in the land-office, and suit begun in support thereof, all proceedings in respect to the original application shall be stayed "until the controversy shall be settled or decided by a court of competent jurisdiction, or the adverse claim waived." Section 2326, Rev. St.

By this suit the controversy between these parties in respect to these conflicting locations was transferred from the land-office to this court, with the necessary result to divest the former tribunal of all

jurisdiction, until the court, proceeding in its own way, and by the recognized methods of the law, shall decide the matter in issue between the parties. And while the controversy is pending here, it cannot be affected by any action of the land department. If, upon some alleged settlement of the controversy and dismissal of the suit, the land department has issued a certificate of entry to defendant, it cannot have the effect to terminate the suit in this court. The court alone will decide when the controversy is at an end, and until such decision all things done in the land-office must be ignored. Richmond Co. v. Rose, 114 U. S. 576; S. C. 5 Sup. Ct. Rep. 1055.

The order of dismissal by the clerk is of no importance, since it was set aside, and the cause was reinstated in the docket. If that order had been allowed to stand it would have established the rights of the parties, no less than the certificate of entry. But it was found to have been improperly entered, and the court had ample power to correct the error by setting it aside. When that was done, all things depending on it, here or in the land-office, must, for the purpose of this suit, be regarded as falling with it. The cause now stands on the docket in its first estate as a controversy relating to the title to the claims. to be obtained from the government, which is not to be defeated or ended upon any allegation that either party has obtained that title since the commencement of the suit, unless by settlement, or in some manner which may be recognized in this court.

The motion for judgment on the pleadings will be denied.

WELLS, FARGO & Co. v. CARR and others.

(Circuit Court, D. California. November 5, 1885.)

PROMISSORY NOTE-WRITTEN CONTRACT-FAILURE OF CONSIDERATION-EVI

DENCE.

Where a note is given in pursuance of a written contract for the assignment of a mail route that is fiable to be cut down, with corresponding reduction of pay, and such route is by law cut down, it will not constitute a partial failure of consideration, and parol evidence cannot be admitted in an action on such note, to show that it was verbally agreed when the note was given that if the pay was reduced the liability of the maker should also be correspondingly reduced.

At Law.

Pillsbury & Blanding, for plaintiff.

William Matthews, for defendants.

SAWYER, J. This is an action on a note payable in 16 installments. The note was given on June 30, 1882. The contract, in pursuance of which it was executed, was made on May 7, 1882. The defense set up, and attempted to be established, is a failure, or partial failure, of consideration.