Daily national Republican. (Washington City [D.C.]) 1870-1872, 1870-01-20


1t would have been most extraordinary II
the court below had issued q mandamus
upon this application, amer an exhibition OF
the facts OF the case on the part Of the Sec
rotary OF the Interior; but the judicial as
Constituent must be Increased by the fact
disclosed by the record, that, without q
return, disclosing the facts In regard to this
land and this application for a patent, the
court below yentured to command the issu.
Ing OF patent for the entire tract.
Mr.. Brownlng's return, as has been stated,
was intended TO raise simple question OF
Jurisdiction upon the face OF the 7th sec.
case Of this relator were not disclosed. Upon
that return the court awarded peremptory
mandamus--d final Judgment upon plea N
dbdtsmsHn The court, without being In
formed, or requiring or desiring informa.
ton, as to the actual situation OF the land
assumed not only that the facts were as the
statute required, In order to give a right
under IL, but that upon those facts nothing
was left TO the Judgment Of the Land De,
partmont, and mere ministerial duty dc,
yolved upon 1t to Issue a patent to the re-
lRtor.
No inquiry was made as to whether the
lands were mineral lands, and thus excepted
from the statutei and a patent for all the
whether or not II contained the excepted
mines-was ordered TO Issue TO the claimant
Mineral lands are not only excepted from
this act of July %, 1865, but they are differ,
emily disposed Of by the act Of July 20
1866, IA Stat, 252.) And, for any thing
that appeared to the court below, this entire
tract was not only within the exception Of
the first statute, but had been disposed o.
also TO other parties, conformably to the
latter law.
1t is plain that such Judgment Is without
warrant of law, and void.
FOURTH.
Great as was the error OF the court below
In rendering u ilnal Judgment in this pro
ceedlng as against the defendant, Mr.. Brown
ing, Its error In rendering such judgment
against his successor, Mr.. Cox, was still
more fragrant.
Mr.. Cox was not In any way made partJ
to the proceedings or served with any notice
Of its tendency. His frat knowledge Of Il
as the record shows, was obtained from thu
writ In which he was commanded to issul
this patent.
The proceeding had evidently abated oil
the retirement Of Mr.. Browning.
At common law proceedings for manda
mus abatcd by the death or resignation Of
removal from Office OF the defendant, ant
II required u statute TO prevent this effect II
certain cases, and to revive the proceeding
against the SUCCESSORS 10 ofico or right o.
the parties against whom they were lnstl
tutGd,
This was the act Of william, 4, c. 81
sec. .. (Tapplng on Mandamus, 4l4, 49G.l
As this statute has no force or application
In this country or In this case, the common
law principle prevails In regard to the pro
ceeding.
And that such proceeding must mecca,
sarlly abate upon the retirement from oaleol
before Judgment, of the responsible defen'
dant, clearly appears from two consideration
that may be briefly indicated.
The first Is, the Imperative rule Of the law
Of mandamus that, previously TO the making
Of the application to the court for writ TO