question of mineral was open for consideration until the issue of a patent, there would be great uncertainty in titles, the court said (pages 326, 327, 154 U. S., and page 1038, 14 Sup. Ct.):

"We do not think that any apprehension of disturbance in titles from the views we assert need arise. The law places*under the supervision of the interior department and its subordinate officers, acting under its direction, the control of all matters affecting the disposition of public lands of the United States, and the adjustment of private claims to them under the legislation of congress. It can hear contestants, and decide upon the respective merits of their claims. It can investigate and settle the contentions of all persons with respect to such claims. It can hear evidence upon and determine the character of lands to which different parties assert a right; and, when the controversy before it is fully considered and ended, it can issue to the rightful claimant the patent provided by law, specifying that the lands are of the character for which a patent is authorized."

It quoted these words from the opinion in Smelting Co. v. Kemp, 104 U. S. 638, 640:

"The execution and record of the patent are the final acts of the officers of the government for the transfer of its title, and, as they can lawfully be performed only after certain steps have been taken, that instrument, duly signed, countersigned, and sealed, not merely operates to pass the title, but is in the nature of an official declaration by that branch of the government to which the alienation of the public lands, under the law, is intrusted, that all the requirements preliminary to its issue have been complied with. The presumptions thus attending it are not open to rebuttal in an action at law." And added (pages 329, 330, 154 U. S., and page 1039, 14 Sup. Ct.):

"There are undoubtedly many cases arising before the land department in the disposition of the public lands where it will be a matter of much difficulty on the part of its officers to ascertain with accuracy whether the lands to be disposed of are to be deemed mineral lands or agricultural lands; and in such cases the rule adopted that they will be considered mineral or agricultural, as they are more valuable in the one class or the other, may be sound. The officers will be governed by the knowledge of the lands obtained at the time as to their real character. The determination of the fact by those officers that they are one or the other will be considered as conclusive. *

"It is true that the patent has been issued in many instances without the investigation and consideration which the public interest requires; but if that has been done without frand, though unadvisedly by officers of the government charged with the duty of supervising and attending to the preparation and Issue of such patents, the consequence must

be borne by the government until, by further legislation, a stricter regard to their duties in that respect can be enforced upon them. The fact remains that, under the law, the duty of determining the character of the lands granted by congress, and stating it in instruments transferring the title of the government to the grantees, reposes in officers of the land department."

But, it is said, no patent was issued in this case, and therefore the holding in the Barden Case that the issue of a patent puts an end to all question does not apply here. But the significance of a patent is that it is evidence of the transfer of the legal title. There is no magic in the word "patent," or in the instrument which the word defines. By it the legal title passes, and when, by whatsoever instrument and in whatsoever manner, that is accomplished, the same result follows as though a formal patent were issued. Rutherford v. Greene's Heirs, 2 Wheat. 196, 206; Bryan v. Forsyth, 19 How. 334; Langdeau v. Hanes, 21 Wall. 521, 530, in which this court said: "If the claim be to quantity, and not to a specific tract capable of identification, a segregation by survey will be required, and the confirmation will the immediately attach the title to the lands segregated." The land passes out of the jurisdiction of the land department. The grant has then become complete, and the only remedy for any wrong in the transfer of such title is through the courts, and not in the land department. Lumber Co. v. Rust, 168 U. S. 589, 592, 18 Sup. Ct. 208, and cases cited in the opinion. In this case the land department refused to issue a patent; decided that it had no power to do so, and that the title was complete without one. It would seem strange to hold that the lack of a patent left the question of mineral an open one, when there was no authority for the issue of a patent, when it was in fact, refused, and when the title passed the same* as though a patent had issued. There was not at the time of these transactions, and has not since been, any statute specifically authorizing a patent for this land. Section 2447, Rev. St. (taken from Acts 1854,-10 Stat. 599), applies only to the case of a claim to land "which has heretofore been confirmed by law." And the same may be said as to the special act of March 3, 1869. 15 Stat. 342. Here there had been no claim confirmed to any tract of land, but only the grant of a right to locate. In that respect it was like a land warrant, subject to location anywhere within the specified territory. As to land warrants, however, there is a specific provision for the issue of patents. Rev. St. § 2423. The land department was therefore technically right when it said that the statute did not order the issue of a patent, and that the case was one in which the granting act with the approved survey and location made a full transfer of title. Very likely, if a patent had been issued, the courts

would not have declared it void, but have sustained it as the customary instrument used by government to make a transfer of the legal title. Carter v. Ruddy, 166 U. S. 493, 16 Sup. Ct. 640. But, as there was no statute in terms authorizing a patent, it was not within the power of the locators to compel the issue of one. No court would, by mandamus, order such issue in the absence of a specific and direct statute requiring it. So, when the department refused to issue one, the locators had no alternative but to accept that which the statute had provided as the means of acquiring and the evidence of title, and that must be treated as having all the efficacy of a patent.

tract.

Summing up the whole matter, it results in this: Congress, in 1860, made a grant of a certain number of acres, authorized the grantees to select the land within three years anywhere in the territory of New Mexico, directed the surveyor general of that territory to make survey and location of the land selected, thus casting upon that officer the primary duty of deciding whether the land selected was such as the grantees might select. They selected this Obeying the statute and the instructions issued by the land department, that officer approved the selection, and made the survey and location. The land department, at first suspending action, finally directed him to close up the matter, to approve the field notes, survey, and plat, and notified the parties through him that such field notes, survey, and plat, together with the act of congress, should constitute the evidence of title. All was done as directed. Congress made no provision for a patent, and the land department refused to issue one. All having been done that was prescribed by the statute, the title passed. The land department has repeatedly ruled that the action then taken was a finality. It has noted on all maps and in its reports that this tract had been segregated from the public domain, and become private property. It made report of this to congress, and that body has never questioned the validity of its action. The grantees entered into actual possession, and fenced the entire tract. They have paid the taxes levied by the state upon it as private property, amounting to, at least, $66,000. While the approval entered upon the plat by the surveyor general under the direction of the land department was in terms "subject to the conditions and provisions of section 6 of the act of congress approved June 21, 1860," such limitation was beyond the power of executive officers to impose.

(170 U. S. 468)

VANCE et al. v. W. A. VANDERCOOK CO. (May 9, 1898.) No. 515.

JURISDICTION OF FEDERAL COURTS - AMOUNT IN CONTROVERSY-DAMAGES IN REPLEVIN.

1. When, from the nature of the case as stated in the plaintiff's pleading, there would not legally be a judgment for an amount necessary to the jurisdiction of a United States court, jurisdiction cannot attach, though the damages are laid in a larger sum.

2. The rule having been settled by the decisions of the courts of South Carolina that, in an action of claim and delivery under the Code of that state, consequential damages are not recoverable, but the damages for taking and detention of the property are limited in general to interest, or the value of the use of the property, with the amount of any direct injury thereto, the circuit court of the United States in that district has not jurisdiction of such an action to recover liquors valued by plaintiff at $1,000. though damages are also claimed in the sum of $10,000, where such claim is based on an allegation of special damages to plaintiff's trade and business consequent upon the seizure of the property by defendants.

In Error to the Circuit Court of the United States for the District of South Carolina.

The appellee, a corporation of the state of California, began this action against the present plaintiffs in error, citizens of the state of South Carolina, averring the alleged wrongful seizure by the defendants Bahr and Scott, at a railroad depot in the city of Charleston, S. C., of packages of wines and brandies, the property of the plaintiff. It was averred that at the time of the seizure the liquors were in the custody of a common carrier, under a shipment from San Francisco to the agent of the plaintiff at Charleston, who was to make delivery of each package to a particular individual, who, prior to the shipment, had given an order for the same. Averring that the defendant Vance had subsequently to the seizure, and with knowledge of its wrongful nature, received said packages into his custody, it was further alleged that demand had been made for the return of the property seized, that it was still detained, and that plaintiff was entitled to the immediate possession thereof. Judgment was prayed against the defendants for the recovery of possession of the packages, or their value, alleged to be $1,000, in case delivery could not be had, and for damages in the sum of $10,000. There was an allegation of special damage, to wit: "That by said malicious trespass of said defendants, and their continuation in the wrongful detention of said sixty-eight packages of wine, the plaintiff has been greatly injured in its lawful trade and business with the citizens and residents of the state of South Carolina, to its great hurt and damage, in the breaking up of such trade and commerce." Itemized lists of the packages were attached as exhibits to the com

It was also alleged that the defendants claimed that the acts by them done were performed under the authority of a law of South Carolina

designated as the "Dispensary Law," and it was charged that the statute was void, because in conflict with the constitution of the United States. It was moreover averred that the forcible seizure and carrying away of the packages, and the detention thereof, were done "knowingly, wrongfully, willfully, and maliciously, with intent to oppress and humiliate and intimidate this plaintiff, and make it afraid to rely upon the constitution and laws of the United States, and the judicial power thereof, for its protection in those rights, privileges, and immunities secured to the plaintiff by the constitution and laws of the United States." It was also alleged that the defendants, by "the said malicious trespass and wrongful detainer," intended to deter and intimidate plaintiff and others from asserting their rights under the constitution of the United States.

S. W. Vance filed a separate answer, while Bahr and Scott jointly answered. The respective answers set up that the court had no jurisdiction of the action; that the complaint did not state facts sufficient to constitute a cause of action; that by the provisions of the dispensary law of South Carolina, approved March 6, 1896, the action could not be maintained against the defendants, for the reason that the acts complained of were by them performed in the discharge of duties imposed upon the defendants by the said law; and, if the action was maintainable, that there was a misjoinder of causes of action, in that the plaintiff sued for the recovery of the possession of personal property, and also for exemplary damages for the commission of a trespass in taking the same. It was denied that the seizures and detentions complained of were made with the intent to injure or oppress the complainant, and it was also denied that the property was of the value alleged in the complaint, or that the plaintiff had been damaged in the sum claimed. It was further specially averred that the packages were seized and detained because the liquors contained therein had not been inspected as required by the provision of an amendment to the dispensary law adopted in 1897, and because of a failure to have attached to each package a certificate of inspection, as required by the statute.

By a stipulation in writing, it was agreed that the issues of fact should be tried by the court without a jury. At the trial, as appears by a bill of exceptions allowed by the presiding judge, the court, on the request of counsel for the defendant, passed upon the matters of law heretofore referred to, and also upon several propositions of law relied on by the defendants; that is, that the dispensary law was not in conflict with the constitution of the United States, and was a valid exercise of the police power of the state, particularly by reason of the provisions of the act of congress of 1890, known as the "Wilson Act." Each of these propositions of law was decided adversely to the defendants, and an exception was noted.

The facts found by the court were "that the property described in the complaint is the property of the plaintiff, and that the value thereof is the sum of one thousand dollars, and that the damages to the plaintiff from the detention of the said property by the defendants is the sum of one thousand dollars." and as matter of law the court found "that the plaintiff is entitled to judgment against the defendants for the recovery of the possession of the said property described in the complaint, or the sum of one thousand dollars, value of said property, in case delivery thereof cannot be had, and for the further sum of one thousand dollars damages." Judgment was entered in conformity with the findings. A writ of error having been allowed, the cause was brought to this court for review.

Wm. A. Barber, for plaintiffs in error. J. P. Kennedy Bryan, for defendant in error.

Mr. Justice WHITE, after making the foregoing statement, delivered the opinion of the court.

Counsel for plaintiffs in error discuss in their brief the contentions that the circuit court erred in holding that it had jurisdiction of the action, and that there was not a misjoinder of causes of action, and also assert that the court erred in refusing to hold that the dispensary law of South Carolina was a valid enactment.

We shall dispose of the case upon the jurisdictional question, as it is manifest that the amount of recovery to which the plaintiff was entitled, upon the construction put upon the complaint by its counsel, and acted upon by the trial court, could not equal the sum of, $2,000.

In his brief, counsel for defendant in error says:

"It is clear that the complaint is a case for recovery of personal property, and for damages for its detention. The allegations in the complaint as to the wrongful taking of the property are not by way of stating a cause of action for malicious trespass, but, under the law of the state of South Carolina, are necessary as allegations of wrongful seizure, wrongful taking, and support an action for recovery of personal property, and damages for detention, without a previous demand before the suit; and the court, by its judgment, so construed the complaint, and gave judgment in conformity to the Code.

"The circuit judge has treated the complaint as an ordinary action for recovery of personal property, and for damages for its detention, and has found the title of the property in the plaintiff, and has found the damages for detention. He has found no other damages. He has found no damages for malicious taking. He has found no damages for malicious trespass. He has found only 'damages for detention.' And those damages, as matter of fact, were testified to

as being at least twelve hundred dollars. The circuit judge has found them to be one thousand dollars, and they are conclusive as matters of fact, and are the usual damages accompanying the successful plaintiff who recovers judgment against the defendants for recovery of possession of personal property, and damages incident to wrongful detention: The defendants therefore have no possible cause of complaint."

In determining from the face of a pleading whether the amount really in dispute is sufficient to confer jurisdiction upon a court of the United States, it is settled that if, from the nature of the case as stated in the pleadings, there could not legally be a judgment for an amount necessary to the jurisdiction, Jurisdiction cannot attach, even though the damages be laid in the declaration at a larger sum. Barry v. Edmunds, 116 U. S. 550, 560, 6 Sup. Ct. 501; Wilson v. Daniel, 3 Dall. 401, 407.

As, by section 914 of the Revised Statutes of the United States, the practice, pleadings, and forms and modes of proceeding in actions at common law in a circuit court of the United States are required to conform as near as may be to those prevailing in the state court, and as by section 721 the laws of the several states are made rules of decision in trials at common law in the courts of the United States, in cases where they apply (Bauserman v. Blunt, 147 U. S. 648, 13 Sup. Ct. 466), we will examine the laws of South Carolina, and the decisions of its courts, in order to ascertain the nature of the state statutory action to recover possession of personal property, and the rights of the parties thereunder.

The action of claim and delivery of personal property, under the Code of South Carolina, is one of the class of statutes referred to by Judge Cooley in his treatise on Torts (note 2, p. 442), which permits the plaintiff in an action of replevin to proceed in it as in trover, and recover the value of the property in case the officer fails to find it to return to the plaintiff on the writ. The proceeding was introduced into the legislation of South Carolina by the Code of Procedure adopted in 1870 (14 St. at Large, 423), which provided, in section 269, p. 480, that, upon the making of an affidavit containing certain requisites, and the giving of a bond, the plaintiff might obtain an immediate delivery of the property. By section 285, p. 481, it is provided that: "In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or if it have, and the defendant by the answer claim a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff; or if they find in favor of the defendant, and that he is entitled to a return thereof; and may, at the same time, assess the damages, if any are claimed in the complaint or answer, which the prevailing party has

sustained by reason of the detention or taking and withholding such property." In section 301, p. 488, it is provided: "In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof, in case a delivery cannot be had, and of damages for, the detention." By section 300 it is provided that: "Whenever damages are recoverable, the plaintiff may claim and recover, if he show himself entitled thereto, any rate of damages which he might have heretofore recovered for the same cause of action."

Prior to the Code, by a statute passed December 19, 1827, entitled "An act to alter the law in relation to the action of trover and for other purposes" (6 St. at Large, p. 337), it was provided that upon the giving of a bond and the making of an affidavit by a plaintiff, who intended to commence an action of trover for the conversion of any specific chattel, that the chattel belonged to the plaintiff and had been converted by the defendant, an order might issue, requiring the defendant to enter into a bond, with sufficient surety, for the production of the chattel to satisfy the plaintiff's judgment, in case he should recover against the defendant or defendants; and it was declared that such specific chattel should be liable to satisfy the plaintiff's judgment, to the exclusion of other creditors. Under this act the surety might take the body of the defendant, and keep him in custody until he gave the required security. Poole v. Vernon, 2 Hill, 667.

The measure of damages in South Carolina in an action of trover was early settled in that state. Thus, in 1792, in the case of Buford v. Fannen, 1 Bay, 273, an action of trover to recover the value of several negroes and a horse, after proving the value of the horse the plaintiff offered evidence of consequential damages sustained by the loss of his crop. The trial judge having refused to receive the evidence, the case came before the superior court on a motion for a new trial. Chief Justice Rutledge was of opinion that this kind of testimony might be allowed in some cases, and was for granting a new trial; but the court ruled otherwise, the following opinions being delivered (page 273):

"Waites, J. It is of great importance to keep different issues distinct, that the parties in one form of action may not be surprised by evidence which belongs to another The evidence which the plaintiff wished to produce would have been admissible in trespass, but was, I think, properly rejected in this action. Where there has been an unlawful taking, either trespass or trover will lie; but, if the party proceeds in trover,*he " waives the tort, except as it is evidence of a conversion, and can only have damages for the value of property converted, and the use of it while in the defendant's possession. The real value of the property is not always the

sole measure of damages. If the conversion of it is, or may reasonably be supposed to be, productive of any benefit to the defendant, the jury may give additional damages for it; as, where trover is brought for money in a bag, interest ought to be allowed, by way of damages, for the detention; so, in this case, if the negroes had not been delivered, damages could be given for the labor of the negroes, for the use of money or negroes is a certain benefit to the party who converts them, and he ought to pay for it. But, where he acquires no gain to himself by the conversion, it does not appear to me that he is answerable for any damages above the real value of the thing converted. If he was, he would be answering for a mere delictum, for which he is not liable in trover. By waiving the trespass in this action, which the plaintiff must do, he waives, I conceive, every kind of personal wrong which is unattended with any gain to the trespasser; he releases him from everything | which death would release him from. If, for instance, the defendant had been dead at the time of bringing this suit, what could the plaintiff, in any form of action, have recovered from his executors? The same amount which he has now recovered, and no more; that is, the value of the horse taken, or damages for the use of the negroes while they were in the defendant's possession, but nothing for the loss of crop, which proceeded ex delicto, and produced no benefit to the defendant. For the same reason, as this action is founded in property only, and no damages can be allowed for the mere delictum, I think the evidence offered was not admissible, and that the judge was right in refusing it.

"Bay, J., thought that, as in an action of trover the tort was waived, all its consequences were relinquished with it. The very nature of the action supposed that the defendant came lawfully into possession; and, if so, no damages could or ought to be given till the true owner made his demand, from which time only damages ought to be calculated, and, where no specific demand was proved, then from the time of the commencement of the action,-and relied on the case of Cooper v. Chitty, 1 Burrows, 31, where the nature of this action is particularly defined; also 3 Burrows, 1364, 1365; 2 Esp. 353."

In 1818, in the case of Banks v. Hatton, 1 Nott & McC. 221, an action of trover to recover the value of three negroes, a verdict having been rendered for the plaintiff, a new trial was asked for, among other grounds, because the damages were excessive. In the course of the opinion of the appellate court granting the motion, Mr. Justice Colcock said on this branch of the case (page 222):

"It is stated that the presiding judge instructed the jury that they were at liberty to give 'smart money,' in estimating the

damages. In the action of trover the correct measure of damages is the value of the property, and interest thereon, or, if the action be for the conversion of negroes, the value of their labor, in addition to the value of the negroes. It is impossible to determine by what rule the jury have been governed, but, from the amount of the verdict, it is highly probable that they were influenced by the charge of the presiding judge, and I therefore think the defendant entitled to a new trial on this ground."

On a subsequent appeal from the new trial granted in the case, Mr. Justice Nott, with whom four justices concurred, said (1 Nott & McC. 223):

"Damages for the detention may be given according to the nature of the thing converted or detained; as, for instance, for the use of money the interest may be made the measure of damages, or the value of their labor in the case of negroes. Buford v. Fannen, 1 Bay, 270. Sometimes the increased value may be added, as was decided in the case of Kid v. Mitchell (in this court) 1 Nott & McC. 334. The defendant is not to be benefited by his own wrong, neither can the rights of the plaintiff be affected by the death of the destroyer of the property after demand and refusal."

In McDowell v. Murdock, 1 Nott & McC. 237, an action of trover for the value of two negroes, Mr. Justice Nott, in*delivering the opinion of the court, held that the defendant was entitled to a new trial because, among other grounds, of an erroneous instruction to the jury as to the rule of damages, and said (page 240):

"It has lately been determined by this court, in several cases, that a jury cannot give vindictive damages in an action of irover. The value of the property, with such damages as must necessarily be supposed to flow from the conversion, is the only true measure,-such, for instance, as the work and labor of negroes, interest on the value of dead property, etc."

In 1853, in Harley v. Platts, 6 Rich. Law, 310, an action of trover brought to recover the value of four slaves, a new trial asked for on the ground of excessive damages was refused; it being held that the verdict was warranted by the evidence, under the rule allowing the jury to give the highest value up to the time of trial, with interest or hire. Glover, J., delivering the opinion of the court, said (page 318):

"In trover the jury is not limited to finding the mere value of the property at the time of conversion, but may find, as damages, the value at a subsequent time, at their discretion. 3 Steph. N. P. 2711. The jury may give the highest value up to the time of trial. Kid v. Mitchell, 1 Nott & McC. 334. In Burney v. Pledger, 3 Rich. Law, 191, Judge O'Neall says 'that the plaintiff is entitled to recover for the value of the property at the time of the trial, with interest,