miralty and equity cases (Rev. Stat. §§ 574, 638), the court may be deemed to be sitting when a judge is present upon a rule day, or makes an order which can only be made by the court; but, as we shall show hereafter, no attendance was contemplated on these days,--at least in the absence of the judge.

The law upon the subject of attendance was apparently not changed until April 18, 1814 3 Stat. at L. 133, chap. 79), when it was provided, under “an act to lessen the compensation" of such officers, that there should not be allowed or paid to the clerk of the circuit or district courts of the United States in Massachusetts, Rhode Island, Connecticut, the southern district of New York, or Pennsylvania, "any daily compensation for attending on the said courts.' Why this discrimination was made we have no means of knowing, but the act was repealed March 8, 1824 (4 Stat. at L. 8, chap. 26). No important change was made in the law until 1842, when in the civil and diplomatic bill of May 18 (5 Stat. at L. 475, 484, chap. 29), it was provided that no per diem compensation should be paid to clerks for attendance upon the circuit or district courts "while sit ting for the transaction of business under the bankrupt law merely, or for any portion of the time during which either of the said courts may be held open, or in session, by the authority conferred in that law.

And no per diem or other allowance shall be made to any such officer for attendance at rule days of the circuit or district courts," or for more than one per diem while both courts are in session.

But even before this act of 1842 was passed, it had been held by Mr. Justice Story in United States v. Cogswell, 3 Sumn. 204, Fed. Cas. No. 14,825, which involved the validity of marshal's charges for attendance upon rule days, that as the marshal did not ⚫ either travel to or attend these rule days at the clerk's office, his claim was for a constructive travel and attendance; "but we are of opinion that this charge, whatever might be its validity if the marshal had actually traveled and attended at these rules, is, under the circumstances, wholly inadmissible. To justify the charge, an actual travel and attendance are, in our judgment, indispensable."

By act of February 26, 1853 (10 Stat. at L. 161, chap. 80), Rev. Stat. § 828, the whole subject of fees was revised, and an attendance fee allowed to the clerk of $5 per day for his attendance on the court "while actually in session." By that act the words "while actually in session" were first introduced into the law. It is evident that some change was contemplated by the use of these

The words "actually in session," found in the act of 1853, are emphasized by the sundry civil appropriation act of March 3, 1887 (24 Stat. at L. 509, 541, chap. 362), wherein it is enacted as follows: That hereafter no part "of any money appropriated [shall] be used in payment of a per diem compensation to any attorney, clerk, or marshal for attendance in court, except for days when the court is open [opened] by the judge for business, or business is actually transacted in court, and when they attend under §§ 583, 584, 671, 672, and 2013 of the Revised Statutes, which fact shall be certified in the approval of their accounts." The special sections here mentioned and reproduced in full in the opinion of the court may be dismissed from consideration, as, with the exception of § 2013, since repealed, they relate to cases where there is no judge present at the opening of the term, when special authority is given to the clerk or marshal to adjourn the court from day to day until a judge is present. As no claim is made in the case under consideration for attendance under these sections, they are only important here as indicating the will of Congress that neither the clerk nor the marshal should have an un-* limited discretion in opening the court in the absence of the judge, and requiring a special authority for that purpose. These sections undoubtedly contemplate a special exigency to prevent a lapse of the term, which might follow from the absence of the judge, and to allow the court to be adjourned for a limited number of days. In two of these sections (584 and 671) there is a provision that if the judge does not attend before the close of the fourth day, the court shall be adjourned until the next regular term. have already held in the case of United States v. Pitman, 147 U. S. 669, 37 L. ed. 324, 13 Sup. Ct. Rep. 425, that the officers are entitled to per diem fees for attendance under these sections, the same as if the judge were present and business were transacted.

We

By Rev. Stat. § 828, under which this claim is made by the petitioner, the court must have been "actually in session;" and by the act of 1887 the court must have been opened by the judge for business, or business must have been actually transacted in court. There is no conflict between these acts, since, in order that the court be opened by the judge for business, it must be "actually in session," and if business be actually transacted in court, the court must be open for the transaction of such business. In either case the court must have been actually opened by the judge or actually in session, which amounts to the same thing. As the petitioner bases his claim upon § 828, we shall inquire, first, when the court is actual ly in session. It is certainly not in session upon rule days, since, by Rev. Stat. § 831,

be, and he hereby is, directed and ordered to make and transmit to the clerk of the United States circuit court for the district of Kentucky, at Covington, Kentucky, a true and correct transcript of the papers and proceedings in this case. The order remanding the case is now set aside, and a rehearing of the motion to remand is hereby granted, and is set for Saturday, October 20th, A. D. 1894, at 10 o'clock A. M. in chambers, at Cincinnati, Ohio.

It is now ordered that court stand adjourned until Friday, November 2d, A. D. 1894.

(The others are in form like unto this.) It will thus be seen that, while the form of the journal entry showed an exact compliance with the law, the findings of fact show that it was a mere form, and that the facts found by the court were wholly inconsistent with the proceedings as they appear upon the journal, and were presented to the accounting officers. The form shows that the court met. It did not meet. That the circuit or district judge was present. He was not present. That a certain cause in each case came on to be heard, and that an order was made in such cause, none of which took place at the time or place indicated; but the order was made and transmitted by mail to the clerk. The final entry is that the court stands adjourned until a definite day, when the actual fact was that the day to which adjournment was made was left blank, and when another such order, decree, or proceed ing was received to be entered, such blank was filled with the date on which it was received, and another entry similar to the above, opening and adjourning the court to a blank day, was made. From the nature and character of business transacted on the days on which the court was opened and adjourned as aforesaid, it appears that with scarcely an exception they were orders which might have been made, and which in fact were made, in chambers. While the judge in each case directed the order to be entered, he did not direct the court to be opened for that purpose.

Now, while, as before stated, if the court be properly opened, no business need be done to entitle the officers to their attendance fees, and when authority to do so is given by statute the clerk or marshal may open the court and adjourn it, we know of no authority under which a clerk may open court at his own will, when he may have some order to enter; nor do we know of any authority under which even a judge may open court without his personal presence, unless specially authorized to do so by statute. Under the practice pursued in this case the court might be opened every day in the year, provided some excuse be found in the shape of an order signed by a judge, though the work actually done in court might not have occupied ten days during the entire year.

The opening of a court is a solemn judicial act, and must be performed by the judge in person, unless special authority is given by statute for its performance by a subordinate officer. No such authority is found in this

case. It is true that in United States v. Pitman, 147 U. S. 669, 37 L. ed. 324, 13 Sup. Ct. Rep. 425, it was held that the officers were entitled to their attendance while waiting for the judge to appear. We said in that case that "the court should be deemed actually in session within the meaning of the law, not only when the judge is present in person, but when, in obedience to an order of the judge directing its adjournment to a certain day, the officers are present upon that day, and the journal is opened by the* clerk, and the court is adjourned to another day by further direction of the judge." This, however, was said with particular ref erence to the case under consideration, and is no authority for the practice pursued in this case, since the court was not opened in obedience to any order from the judge.

Great stress is laid in the opinion of the court upon the practice of the departments in this connection, and upon the finding that the present appellee in every account rendered by him since 1882 has charged for services similar to those set out in the account here in suit, and that such accounts were uniformly allowed and paid up to June 30, 1893. An inspection of the entries in this case will show the weight to be attached to this practice of the departments. When it appears upon the journal that the court met, that the judge was present, that an or der was made in court, and that the court adjourned to a specific date, how are the aocounting officers of the Treasury to know that such was not the fact? The practice of the departments to pay these bills might have continued for a century without any thing to show that they were apprised of the actual facts appearing in the findings, and no inference can be drawn from such prac tice. Had it appeared that in such cases the facts set forth in these findings had been called to the attention of the accounting of ficers, the rule would be different; but we fail to see how the practice could afford any justification for these charges. A practice like this is liable to throw one's notions of differences of form and substance into sad confusion. Fictions in pleading were long, and still are, tolerated in many cases; but we know of no definition of the word "fiction" which authorizes journal entries like this, based upon the findings shown in this case. Had the facts been actually stated in connection with these entries, we imagine the practice of the Department would have been so quickly changed that no argument based upon it could have been made.

Petitioner in his brief claims his attendance under §§ 574 and 638, fully set forth in the opinion of the court, which, construed together, declare that courts of admiralty and equity "shall be deemed always open" for the purpose of filing any*pleading, issuing and returning process, and making and directing interlocutory motions, orders, etc., preparatory to the hearing upon their merits of all cases pending therein. No claim under these sections, however, is made in the petition, wherein the petitioner relies alone upon § 828 for attendance when the court is "actually in session."

There are, however, so many other answers to his claim under §§ 574 and 638, that no elaborate discussion of them is necessary. (1) These three sections-574, 638, and 828 -are all taken from the Revised Statutes, and must be construed together, as if they constituted parts of one act, as they really do. Nothing is said about attendance in the first two of these sections, and all the orders are such as are usually made at chambers. Both sections provide upon their face that the proceedings therein authorized may be made at chambers, or in the clerk's office, and in vacation as well as in term; but in a separate and distinct section,-828,-providing for clerk's fees, his fees for attendance are limited to such as are earned while the court "is actually in session." Of course, if there be any conflict between these sections the later rules, but in addition to that it is inconceivable that Congress, while providing specially for attendance while the court is in actual session, should throw the door wide open in §§ 574 and 638 to a charge for attendance upon every day when the judge may happen to make an order, whether the court be actually in session or not. All that is meant by 88 574 and 638 is a recognition of the old custom that courts of admiralty and equity are presumed to be always open for incidental purposes,-a custom as old as the very existence of these courts. (2) The list of the orders actually made by the judge, for the entry of which the clerk claims attendance in this case, shows that none of them were in admiralty cases, and comparatively few in equity cases. The great bulk were in common-law cases. The claim under these sections was evidently an afterthought. (3) If these sections be construed as opening the door for an attendance fee each time an order was made, then they were clearly repealed by the act of 1887, under which the clerk has a right to compensation only when the court is opened by the judge for business, or business is actually transacted in court, and when they attend under certain sections, in which §§ 574 and 638 are not included.

For these reasons I am compelled to disrent from the opinion of the court in this

case.

I am instructed to say that Mr. Justice White and Mr. Justice Peckham concur in this dissent.

(185 U. S. 256)

UNITED STATES, Appt.,

v.

A. A. GREEN et al.

HARVEY L. CHRISTIE and Colin Cameron, Appts.,

v.

UNITED STATES.

Private land claims imperfect claimwhen asserted in time-validity of grant

1.

2.

3.

4.

5.

6.

area-confirmation of title to overplus→→→ res judicata.

Claims asserted by defendants during the pendency of a proceeding instituted in due time in the court of private land claims to confirm an imperfect title are not barred because such defendants were made parties or filed their claims for affirmative relief after the expiration of the period prescribed by the act establishing that court within which pe titions in respect to imperfect claims must be filed in order to preserve such claims.

A grant initiated by proceedings approved by the intendant ad interim of Sonora and Sinaloa, in which a sale was made in 1822, and the purchase price thereupon paid into the public treasury, and completed by title Issued by the commissary general of Sonora In 1825, should be recognized as valid by the court of private land claims.

Due location of a Mexican grant to the extent of the 4 sitios, which, by the laws in force at the time of the sale in the proceedings to obtain such grant, it could not exceed, is sufficiently established by evidence from which the court of private land claims is able to determine the true boundaries of the tract as so limited.

A Mexican grant will be deemed to have been duly recorded in the archives of Mexico prior to September 25, 1853, as required by the Gadsden treaty, where the final title, which states that entry thereof is made in a specified book in the commissariat general, was admitted in evidence without objection, as was also a letter dated in 1831, from the provincial secretary of Sonora on behalf of the commissariat general, alluding to the existence of the title to such grant, and the expediente on file in the Mexican archives contains thereon a memorandum of the issue of a grant, since under such circumstances it may properly be presumed that any ministerial duty imposed on the Mexican officials, of registering the making of the grant, was duly performed, and that such record was in fact made.

A Mexican grant can be confirmed only to the extent of the 4 sitios which, under the laws in force at the time of the sale in the proceedings to obtain the grant, it could not exceed, and which was the quantity denounced, appraised, paid for, and purported to have been granted.

No confirmation of title to overplus within a Mexican land grant, for which the Mexcan government had a right to compel payment or to resell such surplus to a third party, can be had in the court of private land claims upon payment of the asserted value of such excess.

7. Nothing decided in a suit for an unlawful Inclosure of public lands, in which the Supreme Court of the United States on appeal reversed the judgment of the court below in favor of the government, and remanded the case, with instructions to dismiss the petition on the ground that there was color of title in the defendant sufficient to take the case outside of the operation of the statute, Is res judicata in a suit to confirm title under a Mexican grant, in which defendant in the prior suit claims a valid title to such land as being within the exterior boundaries of the grant.

[Nos. 109, 129.]

April 28, 1902.