The New York herald., 1870-01-29
UNITED STATES supREm: COURT.
'hc McGnrrahan Case.


WASHINGTON, ID. O., Jan. %, 1870.
Jacob D. COR, ec-Secretary or the Interior, us.
The United States tL ret. iTvfltorn McGayrahdn.--
At the date OF the oral argument In this case made
on behalf OF The Secretary OF the INTERIOR the rela
tor had leave to file BRIEF within a week, which is
now filed ana Is In substance as follows:-rhe writ
OF error should not be entertained, because the
record contains q stipulation entered into between
the parties In the court below, by which the cause
was agreed to be submitted to the court ana that
the court would render It's Judgment In vacation,
and TO be entered AZ OF tue same term OF the court
there In session. and as Of the day Of such subms-
sion, the eject OF the stipulation placed the cause
beyond the power VI either party to prosecute
writ Of error in accordance with the
provision Of the Judiciary act, as a supersedeos
the writ OF error being required to be taken within
ten days from the date ol the Judgment. 1t was.
therefore, Without the ordinary course law, ana
consequently writ OF error VIII not lie from such
Judgment. The stipulation was III the nature Of an
agreement OF arDltl aOn, and was an agreement TO
accept the OpinlOD OF the Court 70 which 1t
mitted as The proper Judgment IN tue Case and be-
cause O Judgment by cOnsenl, from wncn no writ OF
error lies. ANY rreguarlty in the process Of the
Court should have been Drought before the Court on
motion. ana no motion Deing made IN Tie case the
1rregularlLy Was waived. Inc motion fileu In the
court below and subsequent withdrawn left the case
as though IL had not been fled, and was waiver
OF the 1rrcguarity tnen ana now urged The
alternative writ Issued to Secretary BrOwn-
ing was In The nature OF rule to show
What was not answered III the return mace must be
taken true. Upon tne coming oi the return It's
objection to the jurisdiction OF che Cours, ana that
the duty involved was a discretionary one and must
be reformed Dy tIe prcSiuent was adlu1ged Iu-
sufficient, and In such case the DerempGory writ
Issues. The writ Was properly issued against the
nominal defendant or his SUCCESSOR IN once The
judgment being by the terms oi the stipulation en-
tfeu as VI The Oth u February, was valid AS against
the defendant IN the suit, and the 10 be per-
formed under the writ beng an otcia ACT ana not
personal one, the Judgment was equally Diyatory
tary OF tne Interior and the writ might pro-
perry issue directed to the officer with
oa5 naming him. Ine act oi ISSUING patent
Involves lie exercise OF no olical discretion;
the determining Of tie proper person to whom To
issue It does involve tne exercise OF dscreton but
aS III this case, that determination having made
in FAVOR OF the parry Claiming the issuing OF the
VIII Is merely ministerial. Ihe writ snould not
have been issued To Inc PRESIDENT because he IS
required 10 perform no personal act IN the issuing
OF patents. 1ne entire duties III relation 70 the
ter are performed by certain Specified officers and
they are under Inc direction anu control or the Sec
retary OF the Interior The signature and seal OF
President are all that are required or him. and tile
duty VI signing ana axng the seal is performed by
asecretary Tor that PURPOSE who IS only noniually
under the direction oi the PRESIDENT. ylnulcatlon
OF the court below concludes the brief.
Mr. Merrlan OF counsel Tor McGarrahan, moved
for WIN OF certlorari bring up portions OF the
records III the case, which, as it Is made up, do
not appear Upon suggestion of the Attorney Gen.
eral, however the parties stipulated that the
ing portion may he brought up Dy consent. This
case Involves the possession OF inc New idrla Quick
silver Mining Company.
The Texns Indemnity Bonds.
No. 10. OYr0i,aal-Tle state or 1eras Us. George
FedoodD.-Judge Paschal moved the return day OF
the subpoena IN this cause be corrected and fixed
for the first Monday OF December next IL was SO
ordered. This involves S167 OF Texas Indemnity
bonds which passed into the hands Of Peabody. One
hundred and sixty three thousand were also pur-
chased by Droege Co., or Manchester. THESE
bonds werc not long ago, Judlca.ly declared I'm
properly negotiated by the Texas Confederate author