considered fatal to the right. Congress attempted to protect an honest transaction between a purchaser and a railroad company, even in the absence of a certification or patent. These being the provisions of the act of 1887, the act of 1896, confirming the right and title of a bona fide purchaser, and providing that the patent to his lands should not be vacated or annulled, must be held to include one who, if not in the fullest sense a "bona fide purchaser," has, nevertheless, purchased in good faith from the railroad company. We have been referred in the arguments of this and other cases to the debates in congress, and to the reports of the committees of the two houses to whom the bills were referred as confirmatory of the conclusions we have reached; but it is unnecessary to consider any of the evidence derived from these sources, if, indeed, it is open to consideration, for the language of the two acts is clear, and fully discloses the intent of congress. Our conclusion is that these acts operate to confirm the title to every purchaser from a railroad company of lands certified or patented to or for its benefit, notwithstanding any mere errors or irregularities in the proceedings of the land department, and notwithstanding the fact that the lands so -certified or patented were, by the true construction of the land grants, although within the limits of the grants, excepted from their operation, providing that he purchased in good faith, paid value for the lands, and providing, also, that the lands were public lands, in the statutory sense of the term, and free from individual or other claims. If it be suggested that under the scope of these acts, though the suit must fail so far as it is one to set aside and cancel the certification, it may yet be maintained against the defendant railroad company for the value of the lands so erroneously certified, and that the decree should be modified to this extent,*It is sufficient to say that-First, the government has not asked any such decree; second, that it may be doubtful whether, for the mere purpose of recovering money, an action at law must not be the remedy pursued; but, lastly and chiefly, that it does not appear from this record either that the railroad company received an excess of lands, or has even received (these lands included) the full quantity of lands promised in the grant; and, further, that it does not appear that there were not within the granted or indemnity limits lands which the company might have rightfully received but for this erroneous certification. It will hardly be contended that if, simply through a mistake of the land department, these lands were certified when at the time other lands were open to certification which could rightfully have been certified, and which have since been disposed of by the government to -other parties, so that there is now no way of filling the grant, the government can, nevertheless, recover the value of the lands so erroneously certified. In other words, the mistake of the officers of the government cannot be both potent to prevent the railroad company obtaining its full quota of lands, and at the same time potent to enable the government to recover from the company the value of lands erroneously certified. Our conclusion, therefore, is that, upon the record as it is presented, the decree of the court of appeals was right, and it is affirmed. NOTE NO. 1. Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that the secretary of the interior be and is hereby authorized and directed to immediately adjust, in accordance with the decisions of the supreme court, each of the railroad land grants made by congress to aid in the construction of railroads and heretofore unadjusted. Sec. 2. That if it shall appear, upon the completion of such adjustments respectively, or sooner, that lands have been, from any cause, heretofore erroneously certified or patented by the United States to or for the use or benefit of any company claiming by, through, or under grant from the United States to aid in the construction of a railroad, it shall be the duty of the secretary of the interior to thereupon demand from such company a relinquishment or reconveyance to the United States of all such lands, whether within granted or indemnity limits; and if such company shall neglect or fail to so reconvey such lands to the United States within ninety days after the aforesaid demand shall have been made, it shall thereupon be the duty of the attorney-general to commence and prosecute in the proper courts the necessary proceedings to cancel all patents, certification, or other evidence of title heretofore issued for such lands, and to restore the title thereof to the United States. Sec. 3. That if, in the adjustment of said grants, it shall appear that the homestead or pre-emption entry of any bona fide settler has been erroneously canceled on account of any railroad grant or the withdrawal of public lands from market, such settler upon application shall be reinstated in all his rights and allowed to perfect his entry by complying with the public land law: provided, that he has not located another claim or made an entry in lieu of the one so erroneously canceled: and provided also, that he did not voluntarily abandon said original entry: and provided further, that if any of said settlers do not renew their application to be reinstated, within a reasonable time, to be fixed by the secretary of the interior, then all such unclaimed lands shall be disposed of under the public land laws, with priority of right given to bona fide purchasers of said unclaimed lands, if any; and if there be no such purchasers, then to bona fide settlers residing thereon. Sec. 4. That as to all lands, except those mentioned in the foregoing section, which have been so erroneously certified or patented as aforesaid, and which have been sold by the grantee company to citizens of the United States, or to persons who have declared their intention to become such citizens, the person or persons so purchasing in good faith, his heirs or assigns, shall be entitled to the land so purchased, upon making proof of the fact of such purchase at the proper land office, within such time and under such rules as may be prescribed by the secretary of the interior, after the grants, respectively, shall have been adjusted; and patents of the United States shall issue therefor, and shall relate back to the date of the original certification or patenting, and the secretary of the interior, on behalf of the United States, shall demand payment from the company which has so disposed of such lands of an amount equal to the government price of similar lands; and in case of neglect or refusal of such company to make payment, as hereafter specified, within ninety days after the demand shall have been made, the attorney-general shall cause suit or suits to be brought against such company for the said amount: provided, that nothing in this act shall prevent any purchaser of lands erroneously withdrawn, certified or patented as aforesaid from recovering the purchase money therefor from the grantre company, less the amount paid to the United States by such company as by this act required: and provided, that a mortgage pledge of said lands by the company shall not be considered as a sale for the purpose of this act, nor shall this act be construed as a declaration of forfeiture of any portion of any land grant for conditions broken, or as authorizing an entry for the same, or as a waiver of any rights that the United States may have on account of any breach of said conditions. or Sec. 5. That where any said company shall have sold to citizens of the United States, or to persons who have declared their intention to become such citizens, as a part of its grant, lands not conveyed to or for the use of such company, said lands being the numbered sections prescribed in the grant, and being coterminous with the constructed parts of said road, and where the lands so sold are for any reason excepted from the operation of the grant to said company, it shall be lawful for the bona fide purchaser thereof from said company to make payment to the United States for said lands at the ordinary government price for like lands, and thereupon patents shall issue therefor to the said bona fide purchaser, his heirs or assigns: provided, that all lands shall be excepted from the provisions of this section, which at the date of such sales were in the bona fide occupation of adverse claimants under the pre-emption or homestead laws of the United States, and whose claims and occupation have not since been voluntarily abandoned, as to which excepted lands the said pre-emption and homestead claimants shall be permitted to perfect their proofs and entries, and receive patents therefor: provided further, that this section shall not apply to lands settled upon subsequent to the first day of December, eighteen hundred and eighty-two, by persons claiming to enter the same under the settlement laws of the United States, as to which lands the parties claiming the same as aforesaid shall be entitled to prove up and enter as in other like cases. Sec. 6. That where any such lands have been sold and conveyed, as the property of any railroad company, for the state and county taxes thereon, and the grant to such company has been thereafter forfeited, the purchaser thereof shall have the prior right, which shall continue for one year from the approval of this act, and no longer, to purchase such lands from the United States at the government price, and patents for such lands shall thereupon issue: provided, that said lands were not. previous to or at the time of the taking effect of such grant, in the possession of or subject to the right of any actual settler. Sec. 7. That no more lands shall be certified or conveyed to any state or to any corporation or individual, for the benefit of either of the companies herein mentioned, where it shall appear to the secretary of the interior that such transfers may create an excess over the quantity of lands to which such state, corporation or individual would be rightfully entitled. ΝΟΤΕ ΝΟ. 2. Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that suits by the United States to vacate and annul any patent to lands heretofore erroneously issued under a railroad or wagon road grant shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents, and the limitation of section eight of chapter five hundred and sixty-one of the acts of the second session of the Fifty-First congress and amendments thereto is extended accordingly as to the patents herein referred to. But no patent to any lands held by a bona fide purchaser shall be vacated or annulled, but the right and title of such purchaser is hereby confirmed: provided, that no suit shall be brought or maintained, nor shall recovery be had for lands or the value thereof, that were certified or patented in lieu of other lands covered by a grant which were lost or relinquished by the grantee in consequence of the failure of the government or its officers to withdraw the same from sale or entry. Sec. 2. That if any person claiming to be a bona fide purchaser of any lands erroneously patented or certified shall present his claim to the secretary of the interior prior to the institution of a suit to cancel a patent or certification, and if it shall appear that he is a bona fide purchaser, the secretary of the interior shall request that suit be brought in such case against the patentee, or the corporation, company, person, or association of persons for whose benefit the certification was made, for the value of said land, which in no case shall be more than the minimum government price thereof, and the title of such claimant shall stand confirmed. An adverse decision by the secretary of the interior on the bona fides of such claimant shall not be conclusive of his rights, and if such claimant, or one claiming to be a bona fide purchaser, but who has not submitted his claim to the secretary of the interior, is made a party to such suit, and if found by the court to be a bona fide purchaser, the court shall decree a confirmation of the title, and shall render a decree in behalf of the United States against the patentee, corporation, company, person. or association of persons for whose benefit the certification was made for the value of the land as herein before provided. Any bona fide purchaser of lands patented or certified to a railroad company, and who is not made a party to such suit, and who has not submitted his claim to the secretary of 10 interior, may establish his right as such bona fide purchaser in any United States court having jurisdiction of the subject-matter, or at his option, as prescribed in sections three and four of chapter three hundred and seventy-six of the acts of the second session of the FortyNinth congress. Sec. 3. That if at any time prior to the institution of suit by the attorney-general to cancel any patent or certification of lands erroneously patented or certified a claim or statement is presented to the secretary of the interior by or on behalf of any person or persons, corporation or corporations, claiming that such person or persons, corporation or corporations, is a bona fide purchaser or are bona fide purchasers of any patented or certified land by deed or contract, or otherwise, from or through the original patentee or corporation to which patent or certification was issued, no suit or action shall be brought to cancel or annul the patent or certification for said land until such claim is investigated in said department of the interior; and if it shall appear that such person or corporation is a bona fide purchaser as aforesaid, or that such persons or corporations are such bona fide purchasers, then no such suit shall be instituted and the title of such claimant or claimants shall stand confirmed; but the secretary of the interior shall request that suit be brought in such case against the patentee, or the corporation, company, person, or association of persons for whose benefit the patent was issued or certification was made for the value of the land as herein before specified. (165 U. S. 486) DUNLOP v. UNITED STATES. IMPROPER USE OF MAILS-OBSCENE PUBLICATIONS SUMPTIONS. 1. The refusal of the court to require the prosecutor to file a copy of the matter on which the prosecution is based, where the indictment alleges that it is too obscene and indecent to be set out in the record, is discretionary with the court, and its action is not reviewable. 2. Under an indictment against J. R. D., as the proprietor, for depositing in the mails a newspaper called "The Chicago Dispatch," containing obscene matter, it is competent to admit in evidence, as tending to prove identity and ownership, a copy of a newspaper bearing the heading "The Dispatch, by J. R. D," with the additional information that it is the official paper of the city of Chicago and of Cook county. 3. For the purpose of showing that letters or papers addressed to a post-office inspector, and which he found on his table or in his private box in the post office, had come through the mails, it is competent for him to testify as to the course of business in delivering their mail to the inspectors, and that it was the duty of a certain messenger to gather such mail from the boxes in the post office, and distribute it in the boxes provided for the inspectors. 4. Where it has been proved that certain newspapers have been received by the addressees, under circumstances strongly indicating that they came through the mails, it is competent to further prove that upon the day these papers were dated large numbers of copies of the same newspaper were deposited in the post office for mailing and delivery. 5. Whether or not matter forming the basis of a prosecution for improper use of the mails is too obscene to be set out in the record is primarily a question for the district attorney in preparing the indictment, and, in any event, the question is one within the discretion of the trial court. was 6. In a prosecution for mailing a newspaper containing obscene advertisements, it shown that a post-office inspector had repeatedly talked with defendant about the paper, of which defendant admitted himself to be the responsible head; that he was warned that there were complaints of its character, and that the district attorney considered the advertisements under certain heads improper and illegal; that defendant replied that he scarcely ever saw the advertisements before publication, but had instructed his agent to scrutinize them with more care. Held, that this was sufficient evidence of defendant's knowledge and responsibility to warrant the court in refusing to direct an acquittal. 7. On a trial for improper use of the mails, the district attorney, addressing the jury, said he did not believe there were 12 men to be found in Illinois, unless "they were bought up and perjured in advance, whose verdict I would not be willing to take" on the question of the obscenity of the publication. Defendant excepted to this language, the court held it improper, and the attorney immediately withdrew it. Held, that the error, if any, was cured. 8. In a prosecution for mailing a paper conadvertisements of taining alleged indecent "massage" treatment, the district attorney, addressing the jury, said, "It is not necessary to tell you what the massage treatment is: how a man is stripped naked, from the sole of his feet to the crown of his head, and is rubbed with the hands." Held that, as "massage" is defined to be "a rubbing or kneeding of the body," the attorney's explanation was not radically wrong, and no ground for reversal. 9. There is no error in instructing the jury that there is nothing to prevent them from applying to the facts of the case "the same rules of good common sense, subject always, of course, to a conscientious exercise of that common sense, that you would apply to any other subject that came under your consideration, and that demanded your judgment." 10. In a prosecution for mailing obscene matter the court charged that what are obscene, etc., publications "is largely a question of your own conscience and your own opinion"; but to be of that character a publication "must be calculated with the ordinary reader to deprave him, deprave his morals, or lead to impure purposes, calculated to lower the standard which we regard as essential to civilization," etc. Held, that this could not mislead the jury into supposing that anything which tended to deprave morals in any way whatever was an obscene publication, when the publications in evidence consisted of advertisements by women offering inducement for the visits of men to their rooms. 11. Where proof that certain obscene publications came through the mails rests in part upon the inference that certain messengers in the post office performed their customary duty of taking from the mails matter directed to post-office inspectors at that place, and placed it on their tables, or in their private boxes, where it was found by them, defendant is not entitled to an instruction that the presumption of his innocence is stronger than the presumption that such messengers obtained the objectionable publications from the mails. 12. It is not broadly true that the presumption of innocence is stronger than any other presumption except the presumption of sanity and of knowledge of the law. In Error to the District Court of the United States for the Northern District of Illinois. This was a writ of error to review the conviction of the plaintiff in error for unlawfully depositing and causing to be deposited, upon the days set out in the various counts, in the post office at Chicago, for mailing and delivery, a newspaper called the "Chicago Dispatch," containing obscene, lewd, lascivious, and indecent matter. There were 32 counts in the indictment. The district attorney, under order of the court, elected to proceed upon the first, sixth, twelfth, sixteenth, twenty-sixth, and thirty-second counts. The other counts were quashed, and no evidence was offered to sustain the first count. The sixth count was as follows: "And the grand jurors aforesaid under their oath aforesaid do further present that the said Joseph R. Dunlop, on the 6th day of July, in the year aforesaid, at Chicago aforesaid, in the division and district aforesaid, unlawfully did knowingly deposit and cause to be deposited in the post office of the said United States there, for mailing and delivery, a large number of copies, to wit, one hundred copies of a certain paper, print, and publication entitled "The Chicago Dispatch,' one of which said copies was then and there directed to 'Mr. Montgomery,' at Chicago aforesaid; another to 'R. M. Williams, Box 801,' at St. Louis, Missouri, and the rest to divers persons, respectively, to *488 the said grand jurors unknown; and each of which last-mentioned copies was then and there a copy of the five-o'clock edition of the day in this count aforesaid and number 840 of the said paper, print, and publication, and contained (amongst other things) on the eley the jury; to the giving of improper instruc tions; and to the refusal to give proper instructions requested on behalf of the plaintiff in error. enth page thereof, and under the headings plaintiff in error. of 'Personal' and 'Baths,' certain obscene, lewd, lascivious, and indecent matters in print, of too great length and of too indecent character to be here set forth in full, against the peace and dignity of the said United States and contrary to the form of the statute of the same in such case made and provided." The other counts differed from this only in the dates of the newspapers alleged to have been mailed, and the days upon which they were deposited in the post office. The testimony introduced by the government tended to show that there was published in the city of Chicago, during the year 1895, and the three years immediately prior thereto, a daily and weekly newspaper entitled "The Chicago Dispatch"; that the plaintiff in error, Joseph R. Dunlop, was the pubtisher of said newspaper during those years; that copies of the Chicago Dispatch in large numbers were deposited in the Chicago post office for mailing and delivery during said years, daily except Sunday; that the copies of the Chicago Dispatch described in the indictment as directed to "Mr. Montgomery" at Chicago, and the copies of the Chicago Dispatch described in the indictment as directed to "R. M. Williams, Box 801," at St. Louis, Mo., were deposited for mailing and delivery at the post office in Chicago on the dates of said several copies; that all the copies of said Chicago Dispatch, so directed to said R. M. Williams and Mr. Montgomery, contained therein, under the headings of "Personal" and "Baths," certain advertisements that were obscene, lewd, lascivious, and indecent; and that the plaintiff in error, by reason of being the publisher of said Chicago Dispatch, was liable for the alleged depositing in said post office of said newspapers, so directed to said R. M. Williams and Mr. Montgomery. Defendant was found guilty, and, after motions for a new trial and in arrest of judgment had been overruled, was sentenced to imprisonment to hard labor in the penitentiary for two years, and to pay a fine of $2,000 and costs. Thereupon he sued out this writ, assigning 61 errors as grounds for reversal. These errors related to the refusal of the court, prior to the trial, to order the district attorney to file the printed matter, alleged to be obscene, or copies of the same; to the admission of improper testimony, including all the newspapers introduced; to the re fusal of the court at the close of the testimony of the government to direct a verdict of not guilty; to prejudicial remarks made by the district attorney in his argument to Wm. S. Forrest and A. H. Garland, for Atty. Gen. Harmon and Asst. Atty. Gen. Dickinson, for the United States. Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court. In passing upon this case we shall notice only such errors as were pressed upon our attention in the argument or briefs or counsel. 1. The first assignment is to the alleged error of the court in overruling the motion of the defendant, made prior to the trial, to require the district attorney to file the printed matter alleged in the indictment to be obscene, lewd, lascivious, and indecent, for the purpose of enabling the defendant to demur to the indictment. Defendant's petition for this order stated as the reason for it that, if the advertisements complained of were not filed, his counsel "must investigate and critically examine" over 3,000 advertisements and notices, and that he would "necessarily be confused and embarrassed," and unable "to make suitable preparations to sustain his defense." It is nowhere stated that he desired it for the purpose of demurring to the indictment, and if it had been furnished it would not have been the subject of demurrer, since it is no part of the record. Com. v. Davis, 11 Pick. 432. If the indictment be not demurrable upon its face, it would not become so by the addition of a bill of particulars. Beyond this, however, the application is one addressed to the discretion of the court, and its action thereon is not subject to review. Rosen v. U. S., 161 U. S. 29, 35, 16 Sup. Ct. 434, 480; Com. v. Giles, 1 Gray, 466; Com. v. Wood, 4 Gray, 11; State v. Bacon, 41 Vt. 526. While such applications are ordinarily, and should be, granted, wherever the accused is liable to be surprised by evidence for which he is unprepared, it is difficult to see how the defendant in this case was prejudiced by its refusal. The alleged obscene matter was contained in a published newspaper to which his own name was attached as proprietor, and of which he had in fact been the proprietor for several years, the days and editions of which were set forth in the several counts. He was duly informed upon the trial of what particular advertisements the government complained, and requested the court to charge the jury that they were not obscene, within the meaning of the law. He thus gained every advantage that he could possibly have had by the production of the advertisements prior to the trial. 2. The second and five other assignments of error are taken to the admission of the following advertisements of proprietorship, appear ing in the several editions set forth in the in 493 *492 dictment, upon the ground that there was no proof that the newspapers, from which they were taken, were copies of the Chicago Dispatch, and that they did not tend to show who was the publisher: The Dispatch. By JOSEPH R. DUNLOP. AN INDEPENDENT AFTERNOON DAILY PAPER THREE EDITIONS DAILY-12, 3 AND 5 O'CLOCK cago post office, a copy of the Dispatch, and deliver it to him in the office occupied by him as superintendent of mails in the government building at Chicago, and that it was in this way that the newspapers identified by Montgomery were received by him. Each count in the indictment, upon which the trial was had, charged a mailing of the Dispatch to Montgomery at Chicago, as well as one to Williams, Box 801, at St. Louis. Montgomery's testimony tended to show that he had been superintendent of the mails at the Chicago post office for six years past; had charge of the receipt and dispatch of all mails in and out of that office, and knew Official Paper of the City of Chicago that there was a publication passing through -AND Official Paper of Cook County. It is difficult to see how the identity of the paper, called the Chicago Dispatch, which the indictment averred that the defendant deposited in the post office for mailing, could have been more conclusively proved than by the production of a newspaper called the Dispatch, and purporting to be the official paper of the city of Chicago. In that particular the paper proved itself. While the addition of the words "by Joseph R. Dunlop," might not have been, standing alone, sufficient evidence of his being the proprietor of the paper, and the cause of its being mailed, yet, in view of the fact that the name of the publisher usually follows the name of the paper in that connection, it certainly had a tendency in that direction, and was, therefore, admissible, particularly when it was shown by other testimony that defendant had stated that he was the proprietor and publisher of this paper; that a paper of this name had been for a long time printed and circulated by him; that it had for a long time and in large numbers passed through the post office; that he had negotiated for the renting of a building for the purpose of publishing a paper called the Dispatch; that he had conversations with witnesses in regard to the publication of a paper of that name; that, as proprietor, he had caused papers, similar to these, to be sent through the post office, and that the accounts for postage had been rendered to him. 3. The eighth assignment was taken to an alleged error in permitting the witness McAfee to testify that it was the duty of a certain messenger of the post-office inspector, whose office was in the post-office building a St. Louis, Mo., to take the mail from the post office, and distribute it in the private boxes of persons who had desk room in the inspector's office. The thirteenth assignment was taken to a similar alleged error in permitting the witness Montgomery to testify that it was among the duties of a government employé, not a mail carrier, to take from a table called "the round table," in the mailing department of the Chi the office known as the Chicago Dispatch; that he received the papers put in evidence in the Chicago post office from what is known as the "round table," the place at which the mail comes into the office from a platform, where it is received direct from the publication office; that it was delivered to him by a messenger through the regular channels of the mail in the same manner that all other papers of this kind were delivered, and subsequently turned over to Mr. McAfee. He was then asked the question, "What are the duties of that messenger?"— that is, the one who brought to his office from the "round table" in the post-office building the papers he had identified. this question objection was made. To The witness McAfee testified that he was a post-office inspector, commissioned, but not paid, by the government, and was also a commission agent of the Western Society for the Prevention of Vice; that on June 12, 1895, he addressed a letter to the Dispatch of Chicago, inclosing therein the sum of $1.25, requesting the Dispatch to be sent to R. M. Williams, Box 801, St. Louis, Mo., for three months from date, signing the letter "R. M. Williams;" that he received the papers, identified by him, from his box in the inspector's office in St. Louis; that he did not take them from his box in the post office; that his mail was put in the box by a messenger from the inspector's office, whose of fice was in the post-office building; that the only way that he knew that the paper came in the mail was that he found it in his private box in the inspector's office; that he had received his mail in that way for 10 years; that it was not a post-office box in the same sense as 801, but was simply a box where his mail was deposited. He was then asked, "Who was this messenger who delivered these papers?" to which objection was made, and he answered that he was a messenger for gathering the mail for inspectors, and distributing it in boxes provided in the post office. The testimony of both of these witnesses was objected to upon the ground that they testified nothing as to the delivery of these papers of their own personal knowledge. It is claimed that the error consisted in assum |