zation of the bank, charging them as part-that the plaintiffs in error were claiming any
ners doing business in the firm name and
style of the Market National Bank of Chica-
go. He recovered a judgment in the appel-
late court of Illinois. That judgment has
been affirmed by the supreme court of Ill
nois, and the case is now before us on a writ
of error to the judgment of the state supreme

court.

[279] *The theory upon which this action was maintained in the state courts can be best made to appear by a quotation from the opinion of the supreme court:

"The principle is one of agency, and that plaintiffs in error, as the agents of the corporation in making the contract of the lease by necessary implication asserted to the lessor that they were in fact authorized to cause the lease to be executed by the corporation. Where the contract is made in good faith and both parties are fully cognizant of the facts, and the mistake is one of law only. the result of which is to exonerate the principal from liability because the agent had no lawful authority to make the contract, it is clear that the agent cannot be held liable, either ex contractu or ex delicto.

immunity under the laws or Constitution of
the United States; nor is there any allusion,
however distant, in the opinion of the su
preme court, to any such question. And
surely the fact that the defendants had pro-
posed, but had failed, to effect an organiza-
tion as a banking association under the laws
of the United States, did not bestow a Fed-
eral character upon their transactions. By
withdrawing from their futile attempt to cre-
ate a corporation under the statutes of the
United States, these individual defendants
must be deemed to have renounced any right,
title, or immunity they might have possessed
under such organization had it been per-
fected.

It has been frequently held that the contention, even if formally made, that plaintiffs in error were seeking to avail themselves of some right or immunity under the Constitution or laws of the United States, does not give us jurisdiction to review the judgment of the supreme court of a state where that judgment was based upon a doctrine of general law sufficient of itself to determine the case. Beaupre v. Noyes, 138 U. "The appellate court was authorized to S. 397, 34 L. ed. 991, 11 Sup. Ct. Rep. 296; find, and doubtless did find, that this was Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, not such a case. These directors were 14 Sup. Ct. Rep. 131; Pierce v. Somerset R. charged with knowledge that they had not Co. 171 U. S. 641, 43 L. ed. 316, 19 Sup. Ct. taker the necessary steps to obtain, and had Rep. 64: Remington Paper Co. v. Watson, not obtained, the certificate of the Comptrol-173 U. S. 443, 43 L. ed. 762, 19 Sup. Ct. Rep. ler necessary to confer power to make the 456. lease, and it was a fair inference for the appellate court to draw from the agreed facts that McCormick did not know of this omission until August 15, 1893, several months after the lease was executed and after possession of the premises had been taken by the lessee under it. The stipulation also showed that the plaintiffs in error canceled their ar- As well, then, because no Federal question ticles of association in July, but remained in was in form presented to or passed upon by possession of the premises until the 15th day the supreme court of Illinois, as because the of August. They had by resolution author-judgment of that court was based upon matized and directed the execution of the lease, and there can be no doubt of the legal sufficiency of the evidence to establish an implied warranty on their part of their authority to enter into the lease on behalf of the corporation, if such implied warranty is in law a sufficient ground on which to make thein liable to respond in damages to McCor mick for a breach of such warranty.

"We are of opinion that upon both princi ple and authority such an action can be maintained. Indeed, the fraud, if any, arises out of the contractual relations which the parties have assumed. The express contract purporting to bind the principal may be void, but if the agent has given his warran280]ty, express or implied, that he is authorized by his principal to execute that contract when he has no such authority, we know of no principle in law or logic which would prevent the other party from recovering for the breach of such warranty where injury has been sustained by such breach."

Did such a state of facts and law present Federal question? Certainly there was no formal allegation in the assignments of error to the judgment of the appellate court

We think that the question whether the plaintiff's in error rendered themselves liable to McCormick by reason of their false assumption of corporate authority was one of general law, and not one to be solved by reference to any law, statutory or constitutional, of the United States.

ter of general, and not Federal, law, we are unable to see that we have *jurisdiction to re-[201} view that judgment; and the writ of error is accordingly dismissed.

John F. MALONY, Appt.,

v.

O. H. ADSIT.

(See S. C. Reporter's ed. 281-291.) Bill of exceptions signed by successor of trial judge-stipulation by counsel as to cor rectness of bill-pleading nature of estate in land-statute of limitations.

1.

2.

No bill of exceptions can be deemed suf ficiently authenticated under U. S. Rev. Stat. § 953, unless signed by the judge who sat at the trial, or by the presiding judge, if more than one sat.

Counsel cannot stipulate the correctness of a bill of exceptions not signed by the trial judge.

3. The nature of plaintiff's estate in land is sufficiently pleaded under Hill's (Or.) Code, § 318, which is made applicable to Alaska under the act of Congress of May 17, 1884.

requiring him to set forth the nature of his | tive attorneys thereon, and the cause having estate, whether "in fee, for life, or for a been submitted to the court for its decision, term of years," when he alleges that his the court now finds the following facts: ownership is by right of prior occupancy and actual possession, and that is in fact the only

"I. That on the 19th day of April, 1881, the plaintiff and his grantors entered into actual possession of all that certain lot, piece, or parcel of land described in the complaint as lot numbered four (4), in block numbered four (4), in the town of Juneau, district of Alaska, according to the plat and survey of said town of Juneau made by one G. C. Hanus, accepted and adopted in the year 1881 by the citizens of the town formerDecided Dely known as Rockwell, but now Juneau, Alaska, said lot being situated on the corner of Second and Franklin streets, in said town of Juneau, claiming said lot, piece, or parcel of land in their own right; and the said plaintiff and his grantors have, ever since the date last aforesaid, occupied, used, and possessed said lot or piece or parcel of land, having erected a substantial frame or wooden building or structure thereon, using and claiming the same in their own right from that date to the present time adversely to all the world, and especially as against the defendant.

On August 11, 1897, a motion for a new trial was made and overruled. Judgment for the plaintiff was duly entered, and on September 20, 1897, the plaintiff was put in possession of the premises in dispute, in| pursuance of a writ of possession allowed by Hon. Charles S. Johnson, judge of the United States district court, who had succeeded Hon. Arthur R. Delany to that office.

Johnson v. Crookshanks, 21 Or. 339, 28 Pac. 78; Leprell v. Kleinschmidt, 112 N. Y. 364, 19 N. E. 812; Illinois Mut. F. Ins. Co. v. Marseilles Mfg. Co. 6 Ill. 236; Jarrot v. Vaughn, 7 Ill. 132; Hadlock v. Hadlock, 22 Ill. 384; Bennett v. Harkrader, 158 U. S. 441, 39 L. ed. 1046, 15 Sup. Ct. Rep. 863.

*Mr. Justice Shiras delivered the opinion[284 of the court:

On September 6, 1897, the defendant gave [284]notice of an *appeal to the United States cir- An inspection of this record discloses that euit court of appeals for the ninth circuit. the bill of exceptions was not settled, alOn January 4, 1898, the defendant, acting on lowed, and signed by the judge who tried the a decision of the Supreme Court of the Unit- case, but by his successor in office, several ed States, wherein it was held that such months after the trial. It is settled that causes were not appealable to the circuit allowing and signing a bill of exceptions is court of appeals, but that appeals in such a judicial act, which can only be performed cases should be prosecuted to the Supreme by the judge who sat at the trial. What Court of the United States, prayed for an ap- took place at the trial, and is a proper subpeal to this court, which was on said day al-ject of exception, can only be judicially lowed as prayed for by Judge Johnson. known by the judge who has acted in that On January 4, 1898, a bill of exceptions capacity. Such knowledge cannot be brought was filed, to which was appended a statement, signed by the counsel of the respective parties, that the bill of exceptions was correct and in accordance with the proceedings had in the trial of the cause; and the record discloses that, on said 4th of January, 1898, the bill of exceptions was settled and allowed by Judge Johnson.

Mr. L. T. Michener argued the cause and, with Messrs. W. W. Dudley and Oscar Foote, filed a brief for appellant:

Having failed to comply with the statutory provisions it will be considered that plaintiff endeavored to bring the action as in forcible entry and detainer.

Thompson v. Wolf, 6 Or. 308.

Plaintiff in ejectment must recover on the strength of his own title, and can take nothing by reason of defects in the title of the defendant.

Watts v. Lindsey, 7 Wheat. 158, 5 L. ed.

Russell v. Desplous, 29 Ala. 308; Singleton v. Finley, 1 Port. (Ala.) 144; Stringfellow v. Cain, 99 U. S. 616, 25 L. ed. 423; 3 Wait, Act. & Def. 396.

Plaintiff in ejectment who rests his claim upon prior possession must allege and prove that he had such possession within the time fixed by the statute of limitations.

Young v. Irwin, 3 N. C. (2 Hayw.) 9; 3 Wait, Act. & Def. 22.

Mr. S. M. Stockslager argued the cause and, with Mr. George C. Heard, filed a brief for appellee:

The nature of plaintiff's title, "whether in fee, for life, or for a term of years," as required by the Oregon Code, is sufficiently described by the allegation in the complaint that "the plaintiff and his grantors have been the owners by right of prior occupancy and actual possession," etc. If plaintiff was the owner by right of prior occupancy and actual possession of the premises in dispute, it was the highest and best title which could be acquired.

to a judge who did not participate in the trial or to a judge who has succeeded to a judge who did, by what purports to be a bill of exceptions, but which has not been signed and allowed by the trial judge.

Section 953 of the Revised Statutes is as follows: "A bill of exceptions allowed in[285] any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presid ing judge thereof, if more than one judge sat at the trial of the cause, without any seal of court or judge being annexed thereto."

We understand this enactment to mean that no bill of exceptions can be deemed sufficiently authenticated unless signed by the judge who sat at the trial, or by the presiding judge if more than one sat.

In Mussina v. Cavazos, 6 Wall. 363, 18 L. ed. 813, after the case had been elaborately argued on the merits, it was discovered by the court that the bill of exceptions had not been either signed or sealed by the judge below. Thereupon the court delivered the following opinion: "Whatever might be our opinion of the exceptions which appear in the record, if they were presented in such a way that we could consider them, we find them beyond our reach. The bill of exceptions, or what purports to be a bill of exceptions, covering more than three hundred and fifty pages of the printed record, is neither signed nor sealed by the judge who tried the cause; and there is nothing which shows that it was submitted to him or in any way received his sanction. We are therefore constrained to affirm the judgment."

Borrowscale v. Bosworth, a case reported in 98 Mass. 34, presented a somewhat similar question. There a judge of the trial court took a bill of exceptions that had been substantially agreed on by the parties and duly filed, to examine whether the statement of his rulings was correct, with the understanding that if correct he should allow the bill. However, the judge retained the bill without allowing it for more than a year, and resigned his office without having done so. Afterwards, in such circumstances, a motion was made for a new trial in the trial court,

tered upon the said land, and ejected the plaintiff therefrom; that the plaintiff was the owner of an undivided one-half part or interest of, in, and to said land in the complaint described, and that the defendant wrongfully withheld the same from him.

tablished. That remains in the United States, and the only question presented is the priority of right to purchase *the fee. Hence[290] the inapplicability of a statute regulating generally actions for the recovery of real es tate, in which actions different kinds of title From their findings the court drew the may be sufficient to sustain the right of reconclusions of law that the plaintiff was enti-covery. It would be purely surplusage to tled to recover possession of the said land in ind in terms a priority of the right to purdispute, being the undivided one-half part o chase when that is the only question which interest of, in, and to said lot No. 4, in said can be litigated in such statutory action." block No. 4, in said town of Juneau, against said defendant and all persons claiming under him, and to recover a judgment for said possession and for costs.

This principle applies more strongly to the present case, in which the real nature of the plaintiff's estate in the property is truly alleged as ownership by right of prior occuThe appellant now contends that, under 3pancy and actual possession, and was 80 318 of Hill's Oregon Code (which by the act found to be by the trial court. of May 17, 1884-23 Stat. at L. 24-was made applicable to Alaska, and which is in [289]the following terms: "The plaintiff in his complaint shall set forth the nature of his estate in the property, whether it be in fee. for life, or for a term of years, and for whose life, or the duration of such term, and that he is entitled to the possession thereof, and that the defendant wrongfully withholds the same from him to his damage such sum as may be therein claimed"), the plaintiff failed to plead the nature of his estate in the property, whether it be in fee, for life, or for a term of years.

The same view of the nature of a title to a lot in a townsite in Alaska, under these acts of Congress, was expressed by the district court of the United States for the district of Alaska, in the case of Carroll v. Price, 81 Fed. Rep. 137. As, then, the only kind of estate that could be held was that of possession, it was sufficient for the plaintiff to allege that his was of that nature.

It is next contended on behalf of the plaintiff in error that, even if the complaint should be held otherwise sufficient, yet the action must fail because coming within § 3524, Hill's (Oregon) Code, which is as follows: "In an action to recover the possession of any land, tenement, or other real property, where the entry is forcible, or where the pos session thereof is unlawfully held by force, the merits of the title shall not be inquired into; and three years' quiet possession of the premises immediately preceding the com

Without stopping to consider whether the defendant could be heard to again raise a question that had been decided against him on his demurrer to the complaint, we think that the objection is not a sound one. Tho plaintiff alleged, and the court has found, that for more than nine years prior to April 29, 1891, he and his grantors were the own-mencement of such action by the party in posers by right of prior occupancy and actual possession of the land in dispute.

In the condition of things in Alaska under the act of May, 1884, providing a civil government for Alaska, and under the 12th section of the act of March 3, 1891 (26 Stat. at L. 1100), the only titles that could be held were those arising by reason of possession and continued possession, which might ultimately ripen into a fee-simple title under letters patent issued to such prior claimant when Congress might so provide by extending the general land laws or otherwise. Davenport v. Lanb, 13 Wall. 418,20 L. ed. 655. In Bennett v. Harkrader, 158 U. S. 447, 39 L. ed. 1048, 15 Sup. Ct. Rep. 863, brought to this court by a writ of error to the district court of the United States for the district of Alaska, it was said by Mr. Justice Brewer, in disposing of a somewhat similar objection: "Where the complaint alleges that the plaintiff is entitled to the possession of certain described property, which is unlawfully detained by the defendant and the possession of which the plaintiff prays to recover, a general verdict for the plaintiff is a finding that he is entitled to the possession of all the property described in the complaint. Again, in this action, brought under a special statute of the United States in support of an adverse claim, but one estate is involved in the controversy. No title in fee is or can be es

session, or those under whom he holds, may
be pleaded in bar thereof, unless the estate
of such party in the premises is ended."

It is argued that, as the complaint was
filed in the court below May 25, 1896, more
than five years from the day of entry al-
leged in the complaint, and as the defendant
pleaded in bar of the action the three years'
quiet possession of the premises immediately
preceding its commencement, the defendant
is entitled to a judgment of reversal.

If this were indeed an action in forcible entry and detainer, and as the complaint shows on its face that the defendant's pos session was longer than three years prior to the commencement of the action, then the de-[291] fendant was entitled to have had his demurrer sustained. But he did not stand on his demurrer, but availed himself of the court's leave to answer; and hence it might well be questioned whether it was competent for him to again raise in his answer a question already ruled against him under his demurrer. cause it is altogether clear that, on the comBut this it is unnecessary to consider, beaction for a forcible entry and detainer, unplaint and the facts found, this was not an der the section of the Oregon Code pleaded by the defendant, but was an action of ejectment to which the statute pleaded did not apply.

The judgment of the District Court of the United States for the District of Alaska is affirmed.