ter act the complainant undoubtedly acquired the title, unless by the intervening grant to the state of Kansas of March 3, 1863, and the withdrawal of the lands thereunder, they were within the meaning of the statute "reserved or otherwise disposed of by the United States." These several acts occurred in chronological order as follows:

July 1, 1862. Original grant.
March 3, 1863.

Grant to the state.

April 30, 1863. Lands withdrawn from market by order of the commissioner of the general land-office with the approval of the secretary of the interior.

July 2, 1864. Amendatory act passed enlarging the original grant.

The case turns upon the effect that is to be given to the act of the interior department withdrawing the lands from sale, pre-emption, or homestead entry. Did this withdrawal amount to a reservation of the lands within the meaning of the grant? If so, the lands in controversy did not pass by the grant of 1864, and the complainant has no title. In the case of Walcott v. Des Moines Co. 5 Wall. 681, the opinion was expressed that the interior department was the competent power to make an order withdrawing or reserving public land from sale, and it was held that, if this were not so, a grant of land for a specific purpose "carried along with it by necessary implication not only the power, but the duty of the land-office to reserve from sale the lands embraced in the grant." The proposition that wherever there is authority to withdraw any of the public land from market, the land department of the government is the proper authority to make the order of withdrawal, is, to my mind, too clear to require argument to enforce it. Nor can there be any doubt that the moment the grant of March 3, 1863, was made, the authority to withdraw the lands embraced therein was created.

It is also well settled that a withdrawal of public lands from sale by competent authority for the purpose of appropriating them to any lawful purpose operates to sever such lands from the public domain. Wilcox v. Jackson, 13 Pet. 498; Leavenworth, etc., R. Co. v. U. S. 92 U. S. 745; Railroad Co. v. Fremont Co. 9 Wall. 94.

Complainant, however, relies on the ruling of the supreme court in the case of Missouri, etc., R. Co. v. Kansas Pac. Ry. Co. 97 U. S. 491.

In that case the acts under which the complainant claims were construed. Mr. Justice Field, in delivering the opinion of the court construing the two acts together, said:

"When the location was made and the sections granted ascertained, the title of the plaintiff took effect by relation as of the date of the act, except as to the reservations mentioned, the act having the same operation upon the sections as if they had been specifically described in it.

"It is true that the act of 1864 enlarged the grant of 1862, but this was done, not by words of a new and an additional grant, but by a change in the words of the original act, substituting for those there used words of larger import. This mode was evidently adopted that the grant might be treated as if thus made originally; and therefore, as against the United States, the title of the plaintiff to the enlarged quantity, with the exceptions stated, must be considered as taking effect equally with the title of the less quantity as of the date of the first act."

I do not understand the supreme court to hold that the amendatory grant of 1864 passed to the grantee the title to land which congress had in the mean time granted to another, or which had in the mean time been by competent authority otherwise disposed of. It is certainly clear that during the time intervening between July 1, 1862, when the original grant was made, and July 2, 1864, when it was amended and enlarged, the United States was at liberty to dispose of any public lands outside of the limits of the original grant, and the lands in controversy were during that period public lands outside of said grant. They were, I presume, up to the time of their withdrawal under the grant to the state, lands in the market subject to pre-emption or homestead entry. If any of them had been, prior to the passage of the act of 1864, disposed of under the pre-emption or homestead laws, or patented to private parties under any law of the United States, it would, I apprehend, hardly be claimed that lands thus disposed of would have passed to the complainant. And yet this would be the logical consequence of holding that the two acts are to be construed as one act for all purposes.

The supreme court was careful to avoid this construction.

It is said that "when the location was made and the sections granted ascertained, the title of the plaintiff took effect by relation as of the date of the act, except as to the reservations mentioned." There is in this language a distinct recognition of the fact that the reservations mentioned did not pass, and that an inquiry was necessary to ascertain what sections did and what did not pass. But to make the meaning still more definite and certain the supreme court add, “and therefore, as against the United States, the title of the plaintiff to the enlarged quantity, with the exceptions stated, must be considered as taking effect equally with the title to the less quantity, as of the date

of the first act." This language not only does not authorize, but it forbids the inference that as against an intervening grantee of some of the lands included within the limits of the larger grant, the title would pass under the two grants as of the date of the former.

It is only as against the United States that this construction prevails. As against other grantees claiming adversely to the United States as well as to complainant, the later act must be considered as a subsequent grant and as taking effect only from its date. Decree for respondent.

In re DIXON, Bankrupt.

(Circuit Court, W. D. Missouri, E. D. January, 1881.)

NOVATION-SUFFICIENT CONSIDERATION.

An agreement on the part of a debtor to make five new notes, in accordance with the request of the creditor, for the purpose of enabling the creditor to bring suits on the new notes in the justice's court, which he could not do on the original claim, is an agreement upon sufficient consideration. Such an agreement cancels the original contract, and substitutes for it five new contracts.

Petition for Review in Bankruptcy.
Belch & Silver, for petitioner.

J. R. Edwards, for bankrupt.

MCCRARY, C. J. Upon petition of the bankrupt the district court ordered that certain land be set apart to him as a homestead, and as such, exempt. This order was made against the objection of the First National Bank of Jefferson City, one of the creditors of the bankrupt estate. The bank files its petition under section 4986, Rev. St., praying a review and reversal of said order of the district court. The ground upon which the decision of the court below is attacked is that the debt held by the bank against the bankrupt was contracted prior to the acquisition by the bankrupt of the premises now claimed by him as exempt under the homestead law of Missouri. 1 Rev. St. Mo. p. 452, § 2695.

The proof shows that at the time the original indebtedness was contracted the land in question was held in common by the bankrupt and his father, Levi Dixon. The original debt was contracted January 23, 1874. It does not appear from the evidence whether the original debt was evidenced by more than one note or not; but it

does appear that in January, 1878, by agreement of parties, the said indebtedness was divided into five parts, and five new notes were given by the bankrupt for sums ranging from $100 to $150.

This was done, as the record shows, for the purpose of bringing the notes within the jurisdiction of a justice of the peace, prior to the time of the filing of Dixon's petition in bankruptcy. Suit was brought on them and judgments obtained before a justice of the peace, but no part of the judgments has been paid. The new notes. were given long after the acquisition by the bankrupt of the full title to his homestead.

Was the taking of the new notes for different amounts, for the purpose of enabling the bank to sue upon them before a justice of the peace, an accord and satisfaction of the original debt and the making of a new contract within the meaning of the homestead act? If the giving of the new notes was another agreement between the parties, differing in any material respect from the original, then the old contract was extinguished and merged in the new. Whether the new agreement shall have the effect of satisfying the original claim depends upon the terms, and especially upon the question whether the new promise is founded upon any new consideration.

The question is whether there was an agreement, upon sufficient consideration, to cancel the old and enter into a new contract.

It is not necessary that there should be an express agreement on the part of the creditor to proceed in case of default upon the new and not upon the old indebtedness. It is sufficient if such appears from all the facts and circumstances to have been the intent of the parties. In the present case such intent is sufficiently shown by the cancellation of the original note; by the execution of new notes in small amounts; by the agreement to make new and different notes for different sums so as to enable the bank to sue in a justice's court, which it could not do on the original claim; by the bringing of suits on the new notes and by proving them, and failing to make any proof of the original debt against the bankrupt's estate. Babcock v. Hawkins, 23 Vt. 561.

Was there a sufficient consideration for the new agreement? It is not claimed that any part of the original debt was actually paid, but it appears that the bank desired to divide the debt into a number of parts, and to take new notes for each part, so as to bring the claim within the jurisdiction of a justice of the peace.

The agreement on the part of Dixon to make five new notes in accordance with the request of the bank, and for the purpose named.

was an agreement upon sufficient consideration, and it must be held to have been an agreement to cancel the original contract and substitute for it the five new contracts, for otherwise the purpose of the contracting parties to bring the claims within the jurisdiction of a justice of the peace would have been defeated. Upon this ground the decree of the district court must be affirmed without considering the other questions argued by counsel.

So ordered.

Coy v. PERKINS.

(Circuit Court, D. Massachusetts. August 3, 1882.)

COSTS-SOLICITOR'S FEES.

Where in an equity case, before any decree is rendered, an order dismissing the bill with costs is obtained, without notice to the defendant or hearing or consideration of the case by the court, the solicitor's fee of $20 will not be allowed.

Appeal from the clerk's taxation of costs in a suit in equity allowing a docket fee of $20 to the defendant's solicitor under these circumstances: At the term at which the case was entered, the parties appeared by their solicitors, and the defendant filed a demurrer to the bill. After the case had been continued for several terms, the plaintiff caused this entry to be made upon the docket: "Bill dismissed by direction of complainant."

The clerk stated his reasons for the allowance as follows:

"I based my decision solely upon the practice of the clerk's office, under which an attorney fee of $20 is taxed for the prevailing party in every equity case disposed of by order of court, otherwise than upon agreement of parties. Previously to a decision by Mr. Justice Clifford, that when an equity case is disposed of by agreement of parties the prevailing party is not entitled to an attorney fee, such fee was taxed in every equity case disposed of; but since that decision an attorney fee has not been taxed in such cases as come strictly within Judge Clifford's decision, but has been taxed in every other equity case disposed of."

The matter was submitted to the court upon the report of the clerk, and the written objections filed by the plaintiff to the allowance of this fee, without further argument.

Causten Browne, for plaintiff.

R. M. Morse, Jr., and R. Stone, Jr., for defendant.