We are of opinion that the settlement, building, and cultivation found as facts by the circuit court bring the case within the provisions of the seventh section of the act of 1853, and necessarily render void the title asserted under the State by plaintiff.

It follows that the judgment of the circuit court is right, and it is accordingly affirmed.

No. 13. UNITED STATES EX REL. THOMAS MCBRIDE v. CARL SCHURZ.

In error to the Supreme Court of the District of Columbia.

Mr. Justice Miller delivered the opinion of the court. This is a writ of error to the Supreme Court of the District of Columbia.

In that court it was commenced by a petition for a writ of mandamus to compel the Secretary of the Interior to deliver to the relator, McBride, a patent for a quarter-section of the public lands, which, it was alleged, had been signed by the President, the seal of the United States affixed to it, and duly recorded in the proper book in the General Land Office, and countersigned by the recorder. For this instrument, while in the immediate possession of the Secretary, McBride made demand and was refused, whereupon he filed the petition for mandamus. The court, instead of issuing the alternative writ, proceeded by ordering a rule on the Secretary,to show cause why the writ should not issue. A supplemental petition was filed, and Secretary Schurz, in due time, filed his answer, accompanied by certain exhibits, to which the relator replied by taking issue, according to the rules of practice prescribed by that court, on every allegation of the answer.

Upon these pleadings, and the following agreed statement of facts signed by counsel for each party, the case was heard and the rule was discharged:

"Agreed statement of counsel.

"In the Supreme Court of the District of Columbia, this fourteenth day of November, 1879.

"The United States ex rel. Thomas McBride v. Carl Schurz, Secretary of the Department of the Interior. "At Law. No. 21,200.

"Be it remembered that on the hearing of this cause be

fore the Supreme Court of the District of Columbia, sitting in general term, on the twenty-eighth day of October, 1879, it was conceded by both parties that all the allegations of the original petition were true, except the one that the premises named in the petition were in 1862 subject to preemption filing or homestead entry.

"It was also conceded that the case relating to said premises, set out in the answer of respondent, had been appealed from the decision of the Commissioner of the General Land Office to the Secretary of the Interior, and was pending before the said Secretary at the time of the demand. for said patent was made on him, as set forth in the said original petition for relator, and for some days thereafter, and that at the time of said demand, and for some days thereafter, the said patent was, with the papers in said case, as an exhibit in said case, in the office of the Secretary of the Interior, and was not in the office of the Commissioner of the General Land Office.

"It was also conceded that the incorporated town of Grantsville, set forth in the answer of the respondent, was in fact the incorporated city of Grantsville, and that it was incorporated by the territorial legislature of Utah, on the twelfth day of January, 1876, and that said act should be treated as referred to and made a part of this case.

"All other matters in said case stood upon the original and supplemental petition, the answer of the respondent, and the replication thereto. There was no other or further proof or evidence offered by either party.

"One of the rules of this court is as follows:

33. The joinder in issue may be

"The plaintiff joins issue upon the defendant's first plea. "The defendant joins issue upon the plaintiff's replication to the first plea.

"And this form of joinder shall be deemed to be a denial of the substance of the pleading to which it relates, and an issue thereon.

"And thereupon the said court, upon the tenth day of November, 1879, upon the evidence and pleading aforesaid, gave judgment for the said respondent.

"The foregoing facts are stipulated to be a full and

true statement of this case, and made part of the record therein.

"Nov. 14, 1879.

"W. H. SMITH, Attorney for plaintiff.

"U. J. BAXTER, Of counsel for respondent.

Whereupon the court orders the said stipulation to be made of record in the case."

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Some question was made on the argument in this court as to the effect of the answer as evidence, and the practice in the court of king's bench in England has been referred to as making the return of the writ conclusive or at least evidence of all it states. We are relieved of any difficulty on this point by the stipulation of the parties.

No writ of mandamus, alternative or otherwise, was issued, and there was, therefore, no technical return to such a writ, and in strictness the rule applicable to such a writ does not apply. If, however, it could be held that the answer to the rule to show cause stands in the place of a return to a writ of mandamus, the parties have voluntarily made their own issues and stipulated as to the evidence which shall be considered by the court.

By this stipulation the allegations of the original petition, except one which is specified, are to be taken as true. Certain other facts are then set out. It is then added that all other matters stand upon the original and supplemental petitions, the answer and replication, and that there was no other or further proof offered by either party. As the replication distinctly put in issue every paragraph of the answer, as no evidence was offered in support of the answer, and as the rule of the court is recited which makes the replication in this case a denial of the substance of the pleading to which it relates, we must exclude the supplemental petition and the answer of the respondent as evidence and decide the case on the allegations of the original petition and the facts stipulated in the agreed case.

The petition alleged that McBride, who had the requisite qualification to assert a claim under the pre-emption or homestead laws, settled upon the land covered by the patent in the year 1862, with intent to appropriate it under the laws of the United States; that he erected a dwelling-house, cultivated the land, and has continuously occupied and re

sided on it ever since. That in May, 1869, he made a homestead entry of the land at the proper land office in Salt Lake City. That he duly presented this claim according to law and the rules of the land department, with such effect that a patent to him for the land was signed by the President on the twenty-sixth of September, 1877, sealed with the seal of the United States, countersigned by the recorder of the General Land Office, and duly recorded by him in the proper record book of that office. That this patent was transmitted by mail to the local land officers at Salt Lake for delivery to the petitioner, and was, while there, demanded by him of those officers, who refused to deliver it. That said patent was afterwards, by order of the Commissioner of the Land Office, returned to that office, and coming into the possession of the Secretary of the Interior on some proceedings by other parties contesting petitioner's right to the land, petitioner again demanded its delivery to him of the Secretary, who also refused. He thereupon filed his petition for the mandamus.

We are met at the threshold of this inquiry by a denial of the authority of the Supreme Court of the District of Columbia to issue a writ of mandamus, as an original process.

The argument is that the jurisdiction of that court over this class of subjects is governed by sec. 760 of the Revised Statutes relating to the District of Columbia. That section enacts that "the Supreme Court shall possess the same power and exercise the same jurisdiction as the circuit courts of the United States." As this court decided in McIntyre v. Wood, 7 Cranch, 505, and McClung v. Silliman, 6 Wheat. 599, that the circuit courts of the United States possessed no such power, the argument would be perfect if no other powers on that subject existed in the Supreme Court of the District than what is conferred by the above section.

But this court, in the case of Kendall v. The United States, held that by the act of February 27, 1801, organizing originally the courts of this District, the clause of that act which declared the laws of Maryland in force at that date, continued in force in that part of the District which had been ceded by that State, invested the circuit court, as

it was then called, with this very power, because it was a common-law jurisdiction, and the common law on that subject was then in force in Maryland. 12 Peters, 618, et seq. This proposition has been repeatedly upheld by the court since that time, and up to the date of revision it was no longer an open question that in a proper case the court had authority to issue the writ.

It is now said, however, that this section being enacted as of the first day of December, 1873, defines the jurisdiction of the Supreme Court of the District as governed by the powers of the circuit courts of the United States over the same subject at that date, at which time it is clear these latter courts had no such power; and that as the revision repealed all other laws on the same subject, the act concerning the law of Maryland no longer applied to the case.

This leaves out of the process of reasoning the ninetysecond section of the revision, which declares again that "the laws of the State of Maryland, not inconsistent with this title, as the same existed on the twenty-seventh day of July, 1801, except as since modified or repealed by Congress or by authority thereof, or until so modified or repealed, continue in force within the District." Thus the argument is precisely the same as it was in the case of Kendall v. United States, for it was urged there, as here, that as the act creating the court measured its jurisdiction by that of the circuit courts of the United States, which had no such jurisdiction, there could be none in the former; to which the court replied, the provision which continued in force the laws of Maryland.

The revision has merely separated the different sections of the act of February 27, 1801, and placed part of it in section 760 and part of it in section 92. Neither provision is repealed, but we think both of them are retained, with the construction placed on them by this court in Kendall v. United States, and the subsequent cases. But this question would seem to be set at rest by the act of 1877, "to perfect the revision of the statutes of the United States, and of the statutes relating to the District of Columbia." The act amends section 763 of the Revised Statutes of the District, by enacting that "said courts shall have cognizance of all crimes and offenses com