712

FEDERAL REPORTER.

DREW V. VALENTIN./Jl.

(Oircuit Oourt, N, D. Florida.

I.

December 24 l 1883.)

.

GOVERNMENT LANDS-How TITJ.E TO BE DIVESTED.

There is no way for titles to land to be divested out of the United States ex:· cept in strict pursuance of some law of the United States; and, as no statute of limitations runs against the United States, occupancy and possession alone, even for a great length of time, cannot ripen into title as against the United States.
SAME-EFFECT OF FRAUDULENT SALE OF LAND NOT SUBJECT TO ENTRY.

2.

No sale of land, not subject to entry by the receiver at a land-office, can divest either tpe legs.] or equitable title out of the United States. The act of congress of June 15,1844, does not cure such sales, as that act was only intended to embrace such lands as were sUbject to eutry.

In Equity. Fleming d Daniel and .lno. T. Walker, for complainant. Horatio Bisbee, Jr., for respondent. SETTLE, J. I have examined this case with an earnest desire to find something in the record to support the claim of the complain. ants; for I confess I have· no sympathy with those who are ready and willing to take advantage of the ignorance or mistakes of others, and to appropriate to their own use property which has been greatly enhanced in value by the labor of others. But, whatever my feelings may be upon a moral aspect of the case, I am bound by well-estab· lished principles of law and equity, and must announce such judg. ments and decrees as they dictate. An examination of the statutes and the decided cases convinces me that there is no way for titles to land to be divested out of the United States except in strict pursuance of some law of the United States; and as no statute of limita· tions runs against the United States, occupancy and possession alone, even for a great length of time, cannot ripen into title as against the Vnited States. It cannot be claimed that the transactions between Goff and the receiver at St. Augustine divested either the legal or equitable title' out of the United States, for the reason that the lands were not subject to entry; but it is claimed that the act of congress of June 15, 1844, cured that defect, and vested an equitable title in Goff. After an examination of the statute, I am satisfied that it was only intended to embrace such lands as were subject to entry. The objection that the statute could not embrace these lands, because there was no evidence in the general land-office that application for entry was ever made, is not tenable, for the commissioner, in his Jetter to Hon. J. J. Finley, states that such entries are to be found in the general land-office; but the insurmountable obstacle that the lands were not subject to entry still presents itself. The complainants allege that the Valentinfj scrip can only be 10· catoJ on unoccnpied and unappropriated lands, and that the lands ill

MARKS V. FOX.

'1'18

controversy have been occupied by them, and by {hose whom they claim, for more than 40 years, and have been greatly improved in value. The difficulty in the way of the complainants is that their occupancy, not being under law, has conferred upon them no legal or equitable estate, and they cannot be heard to question the title of one VI' ho claims under a patent from the United States. While the complainants cannot be heard to question the Valentine title, it would seem that the government might well inquire, by direct proceedings, how one with authority to locate on unoccupied lands should be permitted, at the price of $1.25 per acre, to locate on lands in the heart or the suburbs of a city. The demurrer must be sustained and the bill dismissed.

"MARKS

v. Fox.

October Term, 1883.)

(Circuit Court, 8. D. New York.

1. ExCEPTIONS TO EvIDENCE.

Exceptions to the admission or exclusion of evidence taken before a master need not be restated when the exceptions to his report are filed. They can be considered upon the record on the argument of the motion to confirm his report.

2.

REB GEST&.

Declarations made byan employer to a workman at the time work is given to the latter, as to the person for whom the work is to be dOll.e, are part of the res gestl13, and admissible in evidence. The marks or tags upon the parcels of work so given are also part of the res gestlB. Parol evidence is admis:;il>le as to these marks, for the purpose of identification.

3.

CONTRADICTORY STATEMENTS.

Contradictory statements alleged to have been made by a witness are not admissible, unless his attention has been previously called to them.

4. IMPEACHMENT OF WITNESS.

Evidence that a witness is acquainted with the character of another is not sufficient to authorize him to state that he would not believe such a witness under oath. It is necessary that he should say that he knew the character of the witness for truth and veracity.

Exceptions to Master's Report. This cause came before the court on exceptions filed by the defendants to the master's report. The action was brought to restrain the defendants from the alleged infringement of the plaintiff's patent. An interlocutory decree was rendered in favor of the plaintiff, and it was referred to the master to ascertain and take an account of the profits which the defendants had II\sde and of the damages which the plaintiff had sustained by reason of theinfringement. During the hearing before the master, it becamo material to show how many caps had been made for the defendants by one Isaac Pachner, and by the firm of Pachner & Adams. The defendants called several witnesses, who had been in the employ of Pachner & Adams, whb testified that, in the ordinary course of business, the material of caps which that fin"-