the General Land Office, upon any claims presented to them, respectively, shall be admitted in evidence in all trials under this act when the person testifying is dead," and the court is required to determine its competency and to give it such weight as it ought to have." These records and this testimony are very voluminous, and in addition to the powers of the court for taking testimony in open court and by deposition, provide the court with ample means for determining these cases. Depositions.-The Rules of Practice provide that the testimony of witnesses shall be taken in open court, unless for some reason they are unable to attend, and in that case, upon the application of the party desiring the testimony, the judge may make an order allowing the deposition of such witnesses to be taken, if it appears to him proper; but such order shall not be granted unless the person applying for it gives notice to the adverse attorney of record of the time and place of making such application, at least five days before it is made to the court, stating the name and residence of the witness whose deposition is desired. The application shall state the name and residence of each witness whose deposition is desired, and what is expected to be proven by each, together with the reasons why such witness should not be required to attend and testify, and the same shall be verified by the oath of some party in interest or an attorney of record in the cause." When the court or judge grants such application, the times and places of taking such depositions must be stated in the order. The commission to take depositions "may be directed to a commissioner of any Circuit Court of the United States, or to any other person qualified to take testimony by the laws of the State or Territory" in which the testimony is to be taken. The commission must name the person to whom it is directed and the place of his residence, so that he may be easily found. A certificate of the official character and authority of any officer to whom a commission may be directed must be returned with it. "The manner of certifying and returning depositions shall be as provided in the laws of the State or Territory where taken." Five days' notice must be given to the opposite party of an application to the clerk to open and file depositions returned into court. In the absence of written objection within this time, the depositions may be published as of course. Objections made as aforesaid shall be heard by a judge of the court on like notice.' The claimant must establish his claim by a preponderance of evidence. 7 Rule 6. 8 U. S. v. Elder, 177 U. S. 104; U. S. v. Ortiz, 176 U. S. 422. The following decisions have been made under other acts: A presumption in favor of the power of officers to make a grant exists when the proper documents are shown. If power is denied, the burden of proof rests on the person questioning it. U. S. v. Peralta, 19 How. 343. Record evidence of the title must be shown, or its absence explained to the satisfaction of the court. U. S. v. Sutter, 21 How. 170; U. S. v. Teschmaker, 22 How. 392; Fuentes v. U. S., 22 How. 443; U. S. v. Chana, 24 How. 131; U. S. v. Osio, 23 How. 273; U. S. v. Knight's Adm'r, 1 Black, 227; White v. U. S., 1 Wall. 660; Romero v. U. S., 1 Wall. 721; Peralta v. U. S., 3 Wall. 434; Pinkerton v. Ledoux, 129 U. S. 346. A grant must have been deposited and recorded in the proper office, and be a part of the public archives of Mexico, to be sus tained. U. S. v. Berreyesa's Heirs, 23 How. 499; Palmer v. U. S., 24 How. 125; U. S. v. Cambuston, 20 How. 59; U. S. v. Castro, 24 How. 346; Peralta v. U. S., 3 Wall. 434. Oral evidence is admitted to identify land as that included in a land grant or a survey. Doolan v. Carr, 125 U. S. 618. A testimonio of a Mexican title is not void because it is not stamped, but its execution must then be proved. Gonzales v. Ross, 120 U. S. 605. Proof of the genuineness of the signatures to the grant is not sufficient to sustain it. U. S. v. Teschmaker, 22 How. 392; U. S. v. Moreno, 1 Wall. 400; U. S. v. Osio, 23 How. 273. Nor of possession. U. S. v. Chaboya, 2 Black, 593. But possession must always be shown. Hornsby v. U. S., 10 Wall. 224. A recital in the grant that all the prerequisites had been complied with is not sufficient to raise a presumption to that effect. Fuentes v. U. S., 22 How. 443. Parol evidence may be received when questions of priorities of equities arise. Berthold v. McDonald, 22 How. 334. Proof that the archives were destroyed is not sufficient from the holder of a naked title, unless he shows specifically that the papers that were necessary to complete his title were lost, and had been of record. U. S. v. Sutter, 21 How. 170; U. S. v. Castro, 24 How. 346; U. S. v. Neleigh, 1 Black, 298; U. S. v. Knight's Adm'r, 1 Black, 227. The claimant was bound to prove that records showing a substantial compliance with the laws of colonization did exist when the copies he produced were given to the grantee before he could be heard to prove their loss and their contents. U. S. v. Bolton, 23 How. 341. Secondary evidence is worthless unless the legality of the grant is first shown, and also that it was of record. U. S. v. Castro, 24 How. 346; U. S. v. Knight's Adm'r, 1 Black, 227; U. S. v. Vallejo, 1 Black, 541 and 283; Pico v. U. S., 2 Wall. 279; Peralta v. U. S., 3 Wall. 434; Hornsby v. U. S., 10 Wall. 224. An unrecorded grant is inconsistent with the established practice of governments. U. S. v. Vallejo, 1 Black, 541 and 283. Mexican officers will not be heard to contradict or supply records. U. S. v. Neleigh, 1 Black, § 467. Attorneys and clerks.-"The clerk shall keep a roll of attorneys. An attorney who is a member of the Supreme Court of the United States, or of any Circuit Court of the United States, or of the highest court of the State or Territory in which he resides, shall, upon exhibiting his certificate of admission to the clerk, be entitled to have his name entered upon the roll of attorneys, and to appear in any cause pending before the court."1 The clerk is the custodian of the records of the court, and he must keep at each place where regular terms of the court are held, (1) a journal for recording all orders, decrees, and judgments of the court; (2) an appearance docket for recording the title of all actions brought in the court at that place, and for noting the filing of the petition, and any subsequent pleadings, with a reference showing the journal page of all or 298; U. S. v. Knight's Adm'r, 1 Black, 227. Records are prima facie evidence of the contents of the original documents, when made by the proper person, and in the absence of any just ground of suspicion as to their genuineness. U. S. v. Neleigh, 1 Black, 298; U. S. v. Watkins, 97 U. S. 219. Maps are not necessary to establish the validity of a grant, although usually expected. U. S. v. Sutherland, 19 How. 363; Hornsby v. U. S., 10 Wall. 224. A map accompanying the petition and referred to in the patent may decide the location of the land. U. S. v. Larkin, 18 How. 557. Where fraud is charged, the evidence in support of the charge should appear on the record. U. S. v. Johnson, 1 Wall. 326; U. S. v. Auguisola, 1 Wall. 352. A formal delivery of possession, "juridical possession," is essential under Mexican law to invest title. It involved a measurement of the land and the location of its boundaries, in cases of uncertainty. The record of such proceedings control the United States in confirming a grant. Graham v. U. S., 4 Wall. 259. Every step necessary under the Mex ican law of 1824 and the Regulations of 1828 must be shown to have been taken by proper evidence. Miller v. Dale, 92 U. S. 473; Adam v. Norris, 103 U. S. 591. A patent confirming a grant is, like a quitclaim, conclusive only between the parties as to the validity of the grant. Miller v. Dale, 92 U. S. 473; Adam v. Norris, 103 U. S. 591; Beard v. Federy, 3 Wall. 478. But see Mora v. Nunez, 10 Fed. R. 634. A patent issued upon confirmation of a grant is conclusive evidence of its validity and correct location against one having no patent. Mora v. Nunez, 10 Fed. R. 634. Evidence that a governor refused to grant a tract because claimed by others cannot operate to give title by estoppel. Arguello v. U. S., 18 How. 539,545. Congressional confirmations are a bar to any proceedings in the courts. U. S. v. Covilland, 1 Black, 339. Objections to the sufficiency of the proof cannot be raised for the first time in the Supreme Court, but must be taken in the court below. U. S. v. Auguisola, 1 Wall. 352. So also the question of fraud. U. S. v. Larkin, 18 How. 557. § 467. Rules of Practice, Rule 1. ders and entries made in the progress of the cause; and (3) a book for the use of the court at each term, for entering each cause then pending at that place, in which the court may enter the memoranda of its orders and judgments.2 § 468. Limitation of proceedings.- All claims that “have not been confirmed by act of Congress, or otherwise lawfully decided upon by lawful authority, and which are not already complete and perfect," of which this court has jurisdiction, are forever barred if not presented by petition within two years "from the taking effect of this act." But it is the duty of the court to appoint a guardian ad litem, and if necessary counsel, to protect the rights of minors, married women, and persons non compos mentis, in any land claim before this court whenever such cases come to the knowledge of the court.2 § 469. Decrees.-The decrees of this court must determine: 1. The validity of the title to the land claimed. 2. The boundaries of the grant presented for adjudication, according to the law of nations, the stipulations of the treaties of 1848 and 1853, between the United States and Mexico, and the laws and ordinances of the government from which the claim was derived. 3. "And all other questions properly arising between the claimants or other parties in the case and the United States." This decree must refer "to the treaty, law, or ordinance under which such claim is confirmed or rejected," and if confirmed the decree must contain a clear statement of the location, boundaries, and area of the land the claim to which is confirmed by the decree. But no decree can "be entered otherwise than upon full legal proof and hearing." The court may render a judgment against the United States for the value of the lands claimed not exceeding $1.25 per acre, if it is found that any portions of the lands decreed by this court to a claimant have been previously disposed of by the United States, upon proof of such disposal and the value of the land. From such a judgment an appeal may be taken as in other cases. Rules of Practice, Rule 1. 468. 126 St. at L. 854, ch. 539, § 12; Beard v. Federy, 3 Wall. 478. 226 St. at L 854, § 12. § 469. 126 St. at L. 854, § 7. 226 St. at L. 854, § 6. 826 St. at L 854, § 14. The Act provides: "Fifth. No proceeding, decree, or act under this act shall conclude or affect the private rights of persons as between each other, all of which rights shall be reserved and saved to the same effect as if this act has not been passed; but the proceedings, decrees, and acts herein provided for shall be conclusive of all rights as between the United States and all persons claiming any interest or right in such lands. "Sixth. No confirmation of or decree concerning any claim under this act shall in any manner operate or have effect against the United States otherwise than as a release by the United States of its right and title to the land confirmed, nor shall it operate to make the United States in any manner liable in respect of any such grants, claims, or lands, or their disposition, otherwise than as is in this act provided. "Seventh. No confirmation in respect of any claims or lands mentioned in section six of this act or in respect of any claim or title that was not complete and perfect at the time of the transfer of sovereignty to the United States as referred to in this act, shall in any case be made, or patent issued for a greater quantity than eleven square leagues of land to or in the right of any one original grantee or claimant, or in the right of any one original grant to two or more persons jointly, nor for a greater quantity than was authorized by the respective laws of Spain or Mexico applicable to the claim. Eighth. No concession, grant, or other authority to acquire land made upon any condition or requirement, either antecedent or subsequent, shall be admitted or confirmed unless it shall appear that every such condition and requirement was performed within the time and in the manner stated in any such concession, grant, or other authority to acquire land."4 4 26 St. at L. 854, ch. 539, § 13. Under former acts it was held as follows: Decrees of the Commissioners and District Court of California were construed under common-law rules. Higueras v. U. S., 5 Wall. 827. A decree may refer to other documents for a more detailed description, U. S. v. Halleck, 1 Wall. 439; or to another petition, U. S. v. Knight's Adm'r, 1 Black, 227; but such documents will not control the language of the decree if unambiguous. U. S. v. Knight's Adm'r, 1 Black, 227. A decree takes effect by relation as of the day when presented to the commissioners. Grisar v. McDowell, 6 Wall. 363. A decree operates to the benefit of the grantee as well as to the original holder. Steinbach v. Stewart, 11 Wall. 566, A decree cannot be collaterally assailed on any point which might have been corrected by an appeal. |