as a whole, Including therein both forfeiture and confirmation,-which is not to work any prejudice. Obviously, the clause quoted does not exclude the idea of some confirmation, but means simply that neither forfeiture nor confirmation, nor any other provi sion in the act, shall be construed as a final settlement of all the claims, legal and equitable, of the companies or their grantees. If, for instance, the canal company, accepting the confirmation provided by section 3, should fail of getting all the lands selected and certified to it, and so receiving the full amount of the grant (as, from the conclusion we have reached in this particular case, it seems that it does), then its acceptance is not to be taken as an estoppel against any subsequent claim to congress for the deficiency caused thereby. So if, between any of the parties affected by this confirmation, there should be controversies in which, on the part of one or the other, there were any legal or equitable claims not arising out of this confirmatory legislation of congress, they were not to be precluded from litigating such claims in the courts. In other words, the confirmation is, in such a case, to be regarded as nothing but a confirmation, and without further effect or significance. The second matter which the act was not to prejudice was "any right of forfeiture, as hereby declared, or recovery of the United States in respect of any of the lands claimed by said companies." The meaning of this clause is not so clear. A reasonable con. struction is that all the provisions in the act, including both the forfeiture and the special confirmation named in section 3, are not to prejudice any right of recovery which the United States may have as against any lands claimed by the companies. That is, if there be any lands within the scope of the original railroad grant of 1856, to which any or either of these companies make any claims, and which are not clearly protected by the confirmation mentioned in the third section, the full rights of the government in respect to such lands may be enforced, irrespective of such section. While the language is a little obscure, it ought not to be construed as denying the confirmation which seems to be granted by the third section, and those words in that, which are reasonably clear in their meaning, should not be overthrown by language of doubtful import like this. The only other construction would exclude the companies named from any benefit of the confirmatory provisions. This construction would, of course, compel an affirmance of this judgment, as showing that the plaintiff had no title to the land, and was therefore in no position to question the defendant's possession. The third matter is that the act shall not be construed "to the prejudice of the right of any person claiming adversely to said companies or their assigns, under the laws of the United States." This means that the confirmation to the companies shall not be taken as an attempt to invalidate any legal or equitable rights of any one, as against such companies. If anything had happened, through contract or otherwise, giving to the individual a legal or an equitable claim as against the companies, such legal or equitable right was not to be affected by anything in this act. But that, so far from conflicting with the idea of a confirmation, rather assumes that there is one, and aims to determine its effect, rather than deny its existence. There is therefore nothing in any of these provisions to overthrow the construction given to the third section, or which conflicts with the confirmation therein provided. We pass, therefore, finally to the question of fact in respect to the defendant's homestead claim. It appears that he entered upon the lands in March, 1888, but did not attempt to make an entry in the land office until May 25, 1888. While the term "homestead claim" is sometimes used to denote the mere formal application at the local land office, obviously this is not the purport of the term as used in this section, for it is defined by the succeeding words, "arising or asserted by actual occupation of the land." This ob viously includes cases in which the party is on the 1st of May, 1888, in the actual occupation of the land, with a view of making a homestead of it under the laws of the United States. But it is said by the counsel for the company that it was not a bona fide homestead claim, because at the time the defendant entered upon the land he understood that it was a part of a railroad grant. The testimony of the defendant is all that there is bearing upon the question of bona fides. And, while it appears from his testimony that he understood at the time of his entry that it was land embraced within a railroad land grant, he also testifies that he expected that the grant would be removed, and that he could then enter the land, and that he went there for the purpose of making it a home. Now, it may be true, as a general proposition, that a man cannot move upon land which he knows belongs to another, and establish a bona fide claim by such wrongful entry, but we do not think that that rule is applicable to the case at bar. The sense in which "bona fide" is used in this clause is indicated by the provision in the one preceding as to cash purchasers. Their purchases were to be protected if made "without fraud and in the belief that they were thereby obtaining valid title from the United States." It does not appear that he knew the exact condition of the outstanding claims. If he did, he knew that this railroad grant had been outstanding 32 years, that the land was to be restored to the government if the road was not completed within 10 years, and that 22 years had passed since the time fixed by con. gress for the completion of the road, and nothing had been done. His expectation was (and, under the circumstances, not an unreaable one) that congress would at some near time interfere to remove all this outstanding claim. Under those circumstances, and in expectation of such removal, he enters upon the land. Can it be said that this entry and occupation was with a view of depriving anybody of title, or that it was, as against the company, a wrongful entry? If the construction contended for were accepted, it would exclude from the benefit of the act any settler upon these lands who knew that the land he entered upon was within the railroad grant. But legislation respecting public lands is to be construed favorably to the actual settler, and the construction contended for by the canal company seems to us too narrow. If a party entering upon a tract, although he knew that it was within the limits of an old railroad grant, did so under the honest belief and expectation that that grant, if not technically extinguished by lapse of time, had remained so long unappropriated by any beneficiary that congress would shortly resume it, and in that belief determined to make for himself a home thereon, with a view of perfecting his title under the land laws of the United States when the forfeiture should be finally declared, it must be held, we think, that he is, within the terms of this confirmatory act, a bona fide claimant of a homestead. The ruling of the circuit court was correct, and the judgment in favor of the defendant is affirmed. (155 U. S. 385) LAKE SUPERIOR SHIP CANAL, RAIL- (December 10, 1894.) No. 50. Appeal from the Circuit Court of the United States for the Western District of Michigan. Ejectment by the Lake Superior Ship Canal, Railway & Iron Company against Hugh Finan, in which there was a judgment entered on the verdict of a jury, directed by the court, in favor of defendant. Plaintiff appeals. Reversed. John F. Dillon and Dan H. Ball, for appellant. Don M. Dickinson, for appellee. Mr. Justice BREWER. This case differs from the preceding (Iron Co. v. Cunningham, 15 Sup. Ct. 103), in that the action was commenced March 21, 1889, and that Finan, the defendant, did not enter upon the tract in controversy until after the 1st of May, 1888. His entry and occupation gave him no rights to the land, because it was embraced within the railroad grant of 1856. He took nothing under the confirmatory act of 1889, because he was not a bona fide claimant or in actual occupation on the 1st of May, 1888. The land was selected and certified to the state for the benefit of the canal company, and was within the scope of the confirmation to the company by the act of 1889. The title of the company was therefore perfect, as against him. The judgment of the circuit court must therefore be reversed, and the case remanded for u new trial. (155 U. S. 386) DONAHUE v. LAKE SUPERIOR SHIP No. 51. PUBLIC LANDS-RAILROAD GRANT-SURRENDER- Act June 3, 1856, granted lands to Michigan to aid certain railroads. The state conferred part of the land on the Marquette_R. Co., and another part on the Ontonagon R. Co., whose roads intersected. The C. & N. W. R. Co., successor of such companies, released_to the state the grant to the Marquette R. Co., and the governor, by authority of the legislature, executed a release to the United States. The C. & N. W. R. Co. also executed a release to the state of the grant to the Ontonagon R. Co., and the governor, without authority of the legislature, released the same to the United States. Held, that the lands within the "place" limits of the roads of such two companies, at their intersection, were not wholly released to the United States, but the state still held an undivided moiety of such lands. In Error to the Circuit Court of the United States for the Western District of Michigan. Ejectment by the Lake Superior Ship Canal, Donahue, in which there was a judgment Railway & Iron Company against Michael entered on the verdict of a jury, directed by the court, in favor of plaintiff. Defendant appeals. Reversed. Don. M. Dickinson, for plaintiff in error. John F. Dillon and Dan H. Ball, for defendant in error. Mr. Justice BREWER delivered the opinion of the court. The land in controversy in this case, as that in controversy in the two prior cases, is a tract which was certified to the state of Michigan on December 12, 1861, as part of the railroad grant, and afterwards, in 1871, again certified to the state in part satisfaction of the canal grant. Donahue, the plaintiff in error, entered upon the land in February, 1883, and has ever since remained in possession. He entered with the view of pre-empting, and made his first application under the pre-emption laws on April 11, 1883. His application was rejected by the local office, from which rejection he appealed to the commissioner of the general land office, and the appeal is still pending in the department. His entry and occupation were such as, within the opinion in the Cunningham Case, 15 Sup. Ct. 103, made him a bona fide* claimant, and entitled to the benefit of the confirmation granted by the closing sentence in section 3 of the act of March 2, 1889. The tract was not, however, within the "clear" six-miles limits of the Ontonagon & State Line road, but was near the crossing of the Ontonagon' and the Marquette lines, and within six miles of each, and was part of the 41,649.25 acres certified on December 10, 1861, by the land office, in a separate list to the state, which list was, as appears from the statement of facts in the Cunningham Case, included in the release made on January 31, 1868, by the Chicago & Northwestern Railway Company to the state, and that on May 1, 1868, by the governor of the state to the United States. On that ground it was held by the circuit court that the lands, | at the time of the second certification to the state, to wit, that in satisfaction of the canal grant, were wholly released from the operation of the railroad grant, and were subject to selection and certification for the benefit of the canal company, and that such selection and certification operated to pass to it a full title,-a title which could not be defeated by any subsequent entry by the defendant for either homestead or pre-emption. The case turns, therefore, on the effect of the releases to the state and by it to the United States. By the original act of June 3, 1856, grants of land were made in aid of the construction of two roads,-one from Marquette to the state line, and one from Ontonagon to the state line. These grants were bestowed by the state of Michigan, separately, on the Marquette and Ontonagon Companies. The rule is that where two lines of road are aided by land grants made by the same act, and the lines of those roads cross or intersect, the lands within the "place" limits of both, at the crossing or intersection, do not pass to either company, in preference to the other, no matter which line may be first located, or road built, but pass. in equal, undivided moieties, to each. St. Paul & S. C. R. Co. v. Winona & St. P. R. Co., 112 U. S. 720, 5 Sup. Ct. 334; Sioux City & St. P. R. Co. v. Chicago, M. & St. P. Ry. Co., 117 U. S. 406, 6 Sup. Ct. 790. This rule was evidently in the mind of congress when it passed the confirmatory act of 1889, for in the last sentence of section 4 there is a provision that a moiety forfeited on account of the noncompletion of one main or branch line should not inure to the benefit of the completed line. When. therefore, the roads from Marquette and On-❘ tonagon, respectively, to the state line, were duly located, the lands within six miles of both, at the intersection, became appropriated, in equal, undivided moieties, to aid in the construction of each. The fact of the consolidation of the Marquette and the Ontonagon Companies with the Fond du Lac Company, and the further fact that the map of definite location was prepared and filed by the consolidated company, in no manner affect this rule of appropriation. The lands were granted by the United States to the state for the accomplishment of specified purposes, and those purposes could not be defeated by the state, or by any corporations, beneficiaries under the state. It may be that the release of the Chicage & Northwestern Railway Company, at that time the beneficial owner of both the Marquette and the Ontonagon grants, operated to relinquish to the state of Michigan the title to all the lands within such grants, but the only release authorized by the legislature of the state of Michigan was of the lands granted to aid in the construction of the road from Marquette to the Wisconsin state line. This authorized no giving up of the grant in aid of the construction of the road from Ontonagon to the state line, and as that held an undivided moiety of the lands at the crossing, to that extent, at least, it still remained after all the releases. It may be a novel condition which resulted, in that it left the state and the United States joint owners, each holding the title to an undivided moiety of this body of lands, and it may be that further evidence may place the case in a different attitude; but, on the record as it how stands, it would seem that the plaintiff and the defendant were each the owners of an undivided half of the land in controversy. Inasmuch, therefore, as the circuit court erred in adjudging to the canal company the full title to the land, its judgment must be reversed, and the case remanded for a new trial. (155 U. S. 311) PEARCE v. STATE OF TEXAS et al. EXTRADITION-INDICTMENT-CONSTITUTIONALITY— The courts of a state from which a fugitive from justice is demanded on extradition do not deny to such person any rights secured to him by the constitution and laws of the United States by refusing to pass on the constitutionality of the statute of the demanding state under which the indictment against such person is sufficient. In Error to the Court of Criminal Appeals of the State of Texas. W. L. Martin, for defendants in error. Mr. Chief Justice FULLER delivered the opinion of the court: George A. Pearce was arrested in the state of Texas on an executive warrant issued by the governor of that state, upon the requisition of the governor of the state of Alabama, to be delivered up to the state of Alabama, to answer two indictments against him in the city court of Mobile, Ala., each charging him with embezzlement and grand larceny; and while in the custody of the agent of the state of Alabama, to be transported to Mobile for trial upon said indictments, he sued out a writ of habeas corpus before the judge of the 42d district of the state of Texas, praying, for the reasons therein stated, to be discharged. On the hearing of the petition, the district judge refused to discharge Pearce, and remanded him to the custody of the agent. Pearce thereupon appealed to the court of criminal appeals of the state of Texas, the court of last resort in criminal matters, where the judgment below was affirmed. 32 Tex. Cr. R. 301, 23 S. W. 15. The grounds on which the relator contended that he was entitled to be discharged were, as stated by the court of appeals, that the indictments were insufficient to authorize his extradition, because it was not alleged therein that the offenses were committed in the state of Alabama, and in violation of her laws; that the indictments were wholly void, in that no time or place was laid therein, and it did not appear where the offenses were committed, nor that they were not long since barred. Relator further showed that he had been a citizen of Texas for more than three years, and that his whereabouts were known to interested parties in Alabama, this proof being made under the statute of limitations, presumably of Texas, as it did not appear how long the offenses were committed prior to the February term, 1889, of the Mobile city court, at which term the indictments were found, nor what was the statute of limitations in Alabama, if any, for embezzlement and theft. The relator did not deny that he was a fugitive from justice within the rule on that subject, or raise any issue thereon. The record showed the requisition made by the governor of Alabama, copies of the indictments duly certified, and the warrant of the governor of Texas; and, in effect, the relator relied for his discharge entirely upon the invalidity of the indictments. The district judge certified that, on the hearing below, he had examined the laws of the state of Alabama, and found the indictments sufficient thereunder, or "at least not void." An opinion was filed in the court of appeals by Simkins, J., in which it was held that any indictment which, under the laws of the demanding state, sufficiently charges the crime, will sustain a requisition, even though insufficient under the laws of the asylum state; that in this case there was no question as to the nature of the crimes charged, and that they were offenses against the laws of Alabama; that indictments dispensing with the allegations of time and venue in conformity with the Code of Alabama had been sustained by judicial decision in that state (Noles v. State, 24 Ala. 693; Thompson v. State, 25 Ala. 41), and were not necessarily fatally defective in every state of the Union, whatever its statutes or forms of proceeding. The majority of the court did not concur in all the propositions stated in the opinion, but expressed their views as follows: "We desire to modify certain propositions stated in the opinion of Judge Simkins. It is intimated, if not stated directly, that the relator would have the right to show by proper evidence that the indictment in substance was not sufficient under the laws of the demanding state. Our posi tion upon this question is that if it reasonably appears upon the trial of the habeas corpus that the relator is charged by indictment in the demanding state, whether the indictment be sufficient or not under the law of that state, the court trying the habeas corpus case will not discharge the relator because of substantial defects in the indictment under the laws of the demanding state. To require this would entail upon the court an investigation of the sufficiency of the indictment in the demanding state, when the true rule is that if it appears to the court that he is charged by an indictment with an offense, all other prerequisites being complied with, the applicant should be extradited. We are not discussing the character of such proof; this must be made by a certified copy of the indictment, etc." It was not disputed that the indictments were in substantial conformity with the statute of Alabama in that behalf, and their sufficiency as a matter of technical pleading would not be inquired into on habeas corpus. Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148. Nor was there any contention as to the proper demand having been made by the executive authority of the state from whence the petitioner had departed, or in respect of the discharge of the duty imposed by the constitution and laws of the United States on the executive authority of the asylum state to cause the surrender. The question resolved. itself, therefore, into one of the validity of the statute on the ground of its repugnancy to the constitution, and the court of appeals declined to decide in favor of its validity. And, if it could be said upon the record that any right under the constitution had been specially set up and claimed by plaintiff in error, at the proper time and in the proper way, the state court did not decide against such right, for the denial of the right depended upon a decision in favor of the validity of the statute. What the state court did was to leave the question as to whether the statute was in violation of the constitution of the United States, and the indictments insufficient accordingly, to the demanding state. Its action in that regard simply remitted to the courts of Alabama the duty of protecting the accused in the enjoyment of his constitutional rights, and if any of those rights should be denied him, which is not to be presumed, he could then seek his remedy in this court. We cannot discover that the court of appeals, in declining to pass upon the question raised, in advance of the courts of Alabama, denied to plaintiff in error any right secured to him by the constitution and laws of the United States, or that the court, in announcing that conclusion, erroneously disposed of a federal question. Judgment affirmed. (155 U. S. 286) DEERING v. WINONA HARVESTER PATENTS WORKS. (December 3, 1894.) No. 54. HARVESTER ELEVATOR EXTENT OF CLAIM PRIOR STATE OF THE ART-ANTICIPATION-INFRINGEMENT. 1. Claim 1 of the Olin patent, No. 223,812, for the combination with a harvester elevator of a swinging elevator pivoted at its lower end, and suitable devices for shifting its upper end, forming a means for elevating the butts of the grain and delivering grain of different lengths at the same point, must be construed, in view of prior similar devices, of which it was only an improvement, and of the explicit language of the specification and claims, as limited to such auxiliary device located on the grain or ascending side of the main elevator, and is not infringed by a similar device located on the stubble or descending side of the main elevator, pivoted at its upper end and movable at its lower end. 2. Anticipation of a patented device must be proved by evidence so cogent as to leave no reasonable doubt in the mind of the court that the transaction occurred substantially as stated. Oral testimony, unsupported by patents or exhibits, is open to grave suspicion. 3. The combination claimed in the Steward patent, No. 272,598, with a swinging butt adjuster in a grain binder of a board pivoted to the end of such movable butt adjuster to bear against the butts of the sheaf after it passes the butt adjuster proper, and while it is being acted upon by the binding mechanism, was not anticipated by the butt adjuster made and used by Heller in 1878. 40 Fed. 236, reversed. 4. Claim 20 of said patent, for the combination, in a grain binder, of moving butt-adjusting mechanism and the board described, the patentee being the first inventor of such a pivoted extension, is not invalid because the means by which the board is held and controlled are not stated in the claim, even though additional elements are necessary to render the device operative. Nor does it necessarily follow from such omission that the precise elements described as rendering the device operative, and included in the combination of claim 21, must be read into the claim. 5. Said claim 20 is infringed by the use of a board practically identical in construction and operation with that of the patent, although the method of adjusting it is not the same as that of the patent, nor a mechanical equivalent thereof; but, by reason of the different method of adjustment, such device does not infringe claim 21. Appeal from the Circuit Court of the United States for the District of Minnesota. This was a bill in equity for the infringement of letters patent No. 223,812, issued January 27, 1880, to William F. Olin, for an improvement in harvesters, and patent No. 272,598, issued February 20, 1883, to John F. Steward, for an improvement in grain binders. The original bill was founded upon five different patents, but appellant acquiesced in the decree of the circuit court dismissing his bill as to all but the two patents above named. In the patent to Olin, for an improvement in harvesting machines, the patentee stated in his specification as follows: "In that class of harvesting machines where the grain is received upon a carrier platform and elevated over the drive wheel by an ele vator and deliverer to the binders or an automatic binder, it is desirable that there shall be no stoppage in the flow of the grain in its passage to its place of delivery; that the butts of the grain shall be carried up parallel, or nearly so, with the heads of the grain, so as to deliver the grain in proper shape for binding purposes; and that the grain shall be delivered to the receiving table so that it can be bound at or near the middle. "The object of this invention is to provide devices for attaining all of these results; and it consists in interposing a roller between the lower end of the elevator and the inner end of the grain carrier, to facilitate elevating the grain and prevent clogging at that point, and prevent the grain from being carried down or falling through between the elevator and carrier; in providing a belt or chain at the grain side of the machine for elevating the butts of the grain, supported on a swinging bar, so that it can be adjusted, according to the length of grain being elevated, to deliver the grain so that it can be bound at the middle; in devices for operating and adjusting the elevator for the butts; in the peculiar construction of the cover; in arranging and operating the belt for the butts so that it prevents any clogging by short grain at the heel of the sickle; in arranging the device for elevating the butts so that it will bear against the butts of the grain, and crowd or move the grain back on the elevator toward the center, for the purpose of straightening the grain in its passage up the elevator, and delivering it so that it can be clasped or bound near the middle, to facilitate the ease of binding; and in the several parts and combination of parts hereinafter described as new." Here follows at great length a description of the device claimed to be novel. The specification concludes as follows: "The butts of grain are heavier than the heads, and consequently lag behind, unless some means are provided to make them move faster than the heads. In order to elevate the butts even with the heads, the belt or elevator, Q, is so arranged that the teeth, b, will engage with the butts of the grain on the roller, I, and carry them up while the heads are being carried up by the elevator belts, M. The lower pulley, c, is to be so arranged that it will permit the teeth, b, on the elevator, Q, to clear the end of the roller and engage the butts, and this pulley, c, is located as close to the main frame as is possible and permit the operation of the butt elevator, which location of the pulley brings the butt elevator in position to enable it to catch any short grain, which short grain is liable to fall down and be caught by the heel of the sickle and clog the sickle. By locating the lower pulley, c, of the belt, Q, at the proper distance above the main frame, A, the teeth, b, on the elevator will come in contact with such short grain and force it forward |