When this Court is satisfied from the evidence before it, that
no appeal to it had been granted by the court below, and that the
cause was not before it when an order was passed at the instance of
the appellee to docket and dismiss the case, it will rescind and
annul the decree of dismissal and revoke and cancel the mandate
issued thereupon.
A motion to docket and dismiss a case from the failure of the
appellant to file the record within the time required by the rule
of this Court, when granted, is not an affirmance of the judgment
of the court below. It remits the case to the court, to have
proceedings to carry that judgment into effect, if in the condition
of the case there is nothing to prevent it. That is for the
consideration of the judge in the court below, with which this
Court has nothing to do unless his denial of such a motion gives to
the party concerned a right to the writ of mandamus.
In the present aspect of this case, such a motion is not to be
considered.
Page 64 U. S. 327
This case was docketed and dismissed at the preceding term of
the Court, under the circumstances which will presently be briefly
stated. The attention of the Court was now called to the case by
the following motions, namely:
1. A motion by the Attorney General to vacate the order
dismissing the cause and to recall the mandate.
2. A motion by Gomez for a mandamus to the district court to
compel it to file the mandate and to permit the execution of the
decree of the district court confirming the land claim.
3. A like motion by Gomez for a like writ to compel the said
district court to dismiss proceedings before it on the part of the
United States, which proceedings were an application to open the
decree below and to grant a new trial. These two motions may be
considered as one.
4. A motion for a mandamus to compel the Surveyor General of
California to survey the land confirmed to Gomez by the decree of
the district court.
The history of the case is so fully given in the opinion of the
Court, that a very brief outline of it will be sufficient.
On the 9th of February, 1853, Gomez, by P. Ord, his attorney,
filed his petition before the board of land commissioners praying
the confirmation of his claim to a tract of land called Panoche
Grande.
On the 26th of March, 1855, the board decided against the
claimant. An appeal was had to the District Court for the Northern
District of California, but upon representation made that the land
claimed lay in the Southern District, the transcript was sent to
that court.
The occurrences which took place there and the manner in which
an appeal found its way to this Court from the decree of that court
confirming the claim are narrated in the opinion of this Court.
On the 31st day of January, 1859, a transcript of the record was
filed in this Court, and a motion made on the part of the claimant
to docket and dismiss the cause, which motion was granted, and a
mandate sent down to the court below. The mandate was,
"That this cause be, and the same is hereby,
Page 64 U. S. 328
remanded to the said district court. You therefore are hereby
commanded that such proceedings be had in the said cause as,
according to right and justice and the laws of the United States
ought to be had, the said appeal notwithstanding."
On the 4th of May, 1859, a motion was made in the district court
for leave to file the mandate and for leave to proceed under the
decree. This motion was resisted by the district attorney, Mr. J.
R. Gitchell, on the ground that no appeal had ever been taken by
the United States in this case. The records of the court were
offered in evidence, and Judge Ogier decided that it was
satisfactorily proven to him that no such appeal had ever been
taken.
This was the posture of the case when the motions were made
which are inserted in the previous part of this report.
The following is the affidavit which is referred to and directed
to be published in the opinion of the court.
"In the United States District Court for the Southern District
of California. Vicente P. Gomez
ad. the United
States:"
"Pacificus Ord, late attorney of the United States for the
Southern District of California, being duly sworn, says that at the
June term, 1857, of the District Court of the United States for the
Southern District of California, held at Monterey, Isaac Hartman
represented that he was a member of the law firm of Sloan &
Hartman, authorized and retained as counsel for Vicente P. Gomez in
the above entitled cause. That he had as counsel for the said
claimant obtained an order from the District Court of the Northern
District removing the case to the Southern District; and that he
was ready and willing to present the same to the Court, as soon as
the same could be heard. Affiant further says that shortly
thereafter, the court being then in session, the said Hartman,
acting as counsel for said claimant, presented the said case to the
court by reading the petition for review, and the other papers and
transcript in the case to the court, for the appellant. That after
so doing, this affiant, acting for the United States, admitted in
open court, that in his opinion the claim was a valid one and that,
in accordance with the rulings of the court in previous cases,
Page 64 U. S. 329
the case should be confirmed. That thereupon the court ordered
that the decision of the land commissioners should be reversed, and
a decree of confirmation entered therein for claimant. Affiant
further says that at the next term of the said district court, held
in Los Angeles, in December, the said Hartman, as counsel in said
case, presented to affiant a draft of the decree of confirmation of
said claim. That upon reading the same, affiant objected to the
said draft on the ground that the same would cover all the land
embraced within the limits of the named boundaries, to the extent
of eleven leagues. Whereupon the said Hartman made another draft of
a decree, restricting the quantity of land to not more than four
leagues, which said draft, after being approved by affiant as
United States attorney, was signed by the court. That thereafter
affiant drafted an order of appeal to the Supreme Court of the
United States in said case, on the part of the United States, and
on the last day of the term of said court, Col. Kewen, acting for
the United States, at the request of affiant, district attorney as
aforesaid, asked for and obtained, as affiant was afterwards
informed, the said order in said case. Affiant further says that at
or about the time the said Hartman informed him that he had been
retained by the said claimant in said case, affiant informed said
Hartman that he had been the attorney for said Gomez before the
United States land commissioners and that, for his services
therein, the said Gomez had conveyed to him the one undivided half
of the tract of land claimed therein. That he had endeavored for a
long time to get the Attorney General to appoint some attorney to
represent the United States in cases in which he was interested,
but without success. That this case had been unacted upon for a
long time, and that as the commissioners had, upon the evidence
before them, passed favorably upon the validity of the claim, and
though they rejected it, it was only on the ground of want of
occupation by the grantee, and that as that ground had been
overruled by the Supreme Court, there could be no injury to the
United States, and no impropriety on his part, as United States
attorney, in appearing and consenting to its confirmation, in all
of which views of this affiant the said
Page 64 U. S. 330
Hartman then concurred. Affiant further says that he wrote to
the Attorney General of the United States shortly after assuming
the duties of the office of district attorney, about December,
1854, stating that he had been employed as counsel, and was
interested in several claims then pending on appeal in his district
from the land commissioners, and requested that he would cause some
attorney to be specially named to represent the United States in
such cases. But the Attorney General never made or named any person
to act in the matter, as requested. That affiant, being thus left
to act in the matter as best he might, did act with the most
scrupulous good faith, and to the best of his ability, for the
United States, in all such cases. Affiant further says that he has
been informed and believes that the parties who are now and have
been endeavoring to impede and defeat this claim, since the
confirmation by the United States district court, are private
persons in possession of a valuable quicksilver mine, believed to
be within the limits of said grant, lately opened and worked by
them, of which one Daniel Gibb, of San Francisco, is believed to be
the principal person interested. Affiant further says that the
substantial allegations in certain depositions of said Isaac
Hartman and E. W. F. Sloan, dated December, 1859, in said case, are
wholly untrue, except as herein admitted."
And further affiant sayeth not.
"P. ORD"
MR. JUSTICE WAYNE delivered the opinion of the Court.
This cause was docketed and dismissed in this Court upon the
motion of the appellee, and a mandate sent to the district court
from which the transcript of its record was obtained for
proceedings to be taken by that court to give to the complainant
the benefit of its confirmation to the land in question.
Page 64 U. S. 331
The Attorney General now moves for the rescission of the order
of dismission, and that the mandate may be recalled.
He does so alleging that no appeal had been granted to the
United States in the court below by which the cause could be
brought to this Court for its revision, because there was then
pending in the court below, when the claimant obtained the
transcript, a motion for the review of the decree which had been
given confirming the claimant's title; secondly, that the court had
also under its advisement a motion concerning an appeal.
And the Attorney General further alleges that the appeal from
the decision of the board of land commissioners rejecting the
petition, and also that the appeal from the district court to this
Court, are fraudulent.
The charges as to the two first rest upon the records which the
appellee presented to this Court, to have the cause docketed and
dismissed.
The Attorney General relies upon depositions and other papers
which are on file in the District Court for Southern California,
and which have been transmitted to this Court by Judge Ogier, to
establish the charge of a fraudulent combination between the then
district attorney of the United States, Pacificus Ord, Esquire, and
the claimant of the land in controversy, and his assignees, to
allow them to obtain from the district court a reversal of the land
commissioners' decree rejecting the claim.
W. C. Sims, the Clerk of the District Court for the Southern
District of California, deposes that the document on file, giving
notice that the claimant intended to prosecute an appeal from the
decree of the board of land commissioners, is in the handwriting of
Mr. Ord, with the exception of the figures No. 278 and the
signature of E. O. Crosby.
The purpose for which this affidavit was made is to show the
interested connection between Mr. Ord and the claimant of the land,
from the beginning of the institution of his suit to establish his
right, and its influence upon the official conduct of Mr. Ord
afterward, in every proceeding in the cause, after it had been
removed from the Northern District of California to the
Southern.
Page 64 U. S. 332
Mr. Ord was originally the attorney of Gomez before the board of
land commissioners, and filed his petition there as such on the 9th
February, 1853. He was not then district attorney, but he became so
on the first of July, 1854, before the land commissioners decided
the case against his client. After his appointment and after an
order had been obtained, at his instance, to remove the cause from
the Northern District of California to the Southern, of which he
was the district attorney, and whilst the cause was pending in the
latter, he took from Gomez, for the nominal consideration of one
dollar, a transfer to himself for one-half of the land in
controversy. This Mr. Ord admits in his affidavit presented to this
Court by counsel. The conveyance to him bears date on the 24th of
November, 1856. It was acknowledged on the same day by Gomez before
a notary public of the County of San Francisco, and was, at the
request of Mr. Ord, recorded in the County of Merced on the 26th
November, 1857; was also filed for record in the County of Fresno
on March 26, 1858, and again recorded by Mr. Ord in Monterey County
the 3d May, 1858. A copy of that conveyance is now before us. These
dates show that no record of the conveyance to him was made until
after the claim had been confirmed by the district judge, upon his
representation that, as district attorney, there was no objection
to its confirmation -- in other words, that he thought the claim a
valid claim, and was within the rulings of the court in other
claims of the same kind.
We shall cite the notice in its words, for, as it had been in
fact the subject of the court's action, and could not have been so
without the knowledge of Mr. Ord, and without his agency, it
devolves upon him the task to disprove the declarations of Mr.
Hartman of the forgery of the name of the law firm of Hartman &
Sloan to the paper. We ought to remark, however, that Mr. Sloan, of
the firm, is not shown by any paper to have had any personal agency
in the matter. The notice is:
"Now, on this day, came the parties, the appellant by Hartman
& Sloan, and the appellee by P. Ord, United States district
attorney. Whereupon, on motion of the attorney of the appellant, it
is ordered that the transcript and papers
Page 64 U. S. 333
transmitted from the Northern District court be filed in this
court, and that the petition for a review of the same be entered
thereon, and that the claimant have leave to proceed in said cause,
the same as if it had been originally filed in this court."
On the same day, a petition was filed for a confirmation of the
claim.
After the confirmation of it in the manner as will hereafter be
stated, Mr. Sloan, upon being told of the motion and that it was
signed by the firm of Sloan & Hartman, but in fact, as if the
style of their firm was Hartman & Sloan, made his affidavit
under a commission instituted by Judge Ogier, that neither as a
member of the then firm of Sloan & Hartman nor otherwise was he
ever retained or employed in the case; that he never wrote nor
authorized to be written any
petition or other paper in
the case; that he never had seen such a petition; that he had never
authorized anyone to use his own name, or that of the firm of Sloan
& Hartman, in the case; and that if the paper was signed as it
is represented to be, it had been without any consultation with him
or his consent or approbation.
The notice for a review of the decision of the board of land
commissioners by the district court, signed, as has been said, by
E. O. Crosby, and wholly in the handwriting of Mr. Ord, was given
after his connection as attorney for Gomez had ceased, and after he
had become the half owner of the land. Mr. Crosby does not appear
afterwards in the suit as the retained attorney of Gomez, nor does
it appear in any other proceeding in the record of the case that he
ever was so. It does not appear that Mr. Crosby was ever recognized
by the land commissioners or by the district court as the attorney
of Gomez, from which we infer, as the notice was in the handwriting
of Mr. Ord, that Mr. Crosby was his agent for the purpose of
obtaining a review of the case in the district court. Afterward,
upon its being found out that the land in controversy was in the
Southern District of California, and not in the Northern, a
petition was filed for its removal to the Southern District, which
was granted.
At this point began those irregularities which, until
explained,
Page 64 U. S. 334
must leave an unfavorable impression in respect to Mr. Ord's
discharge of his official obligations to the United States.
The motion made for the removal of the cause to the Southern
District is said to have been signed by E. W. F. Sloan, Esquire,
and presented by him in open court, and the order said to have been
passed recognizes that as a fact. On the same day, the firm of
Hartman & Sloan is reported in the transcript to have filed a
notice of appeal with the clerk of the District Court for the
Southern District. The paper has all of the formality and substance
which such a paper should have, but Hartman & Sloan deny the
fact of having had any agency in making such a motion; and these
separate affidavits would be sufficient to sustain their
disclaimer, were it not, so far as Hartman is concerned, that his
subsequent conduct in the case shows a connection between himself
and Mr. Ord, which throws suspicion upon both; and that is
aggravated by Hartman's deposition, by that of other persons,
and by the narrative given by Mr. Ord of his conduct in the
suit.
Hartman then makes his affidavit that he had no knowledge who
made and caused the petition to be filed, nor by whose authority
and direction the same was done. But he states that whilst
attending the June term of the Southern District court in 1857, Mr.
Ord, then United States district attorney, asked him if he would do
him the favor to present a claim to the court for confirmation,
stating it was a case in which there would be no opposition on the
part of the government. That, not suspecting there would be
anything wrong about a claim to which the government had no
objection, he consented to do so; that, on the same day, the court
being in session and he being seated at the bar table, Mr. Ord
passed to him the transcript in the case of Gomez and the United
States, which he read to the court without any remarks, supposing
it to be the case of which Mr. Ord had spoken to him; that after he
had finished reading it, Mr. Ord remarked to the court that there
was no opposition upon the part of the government to a
confirmation, whereupon the court replied that there being no
objection, the claim would
Page 64 U. S. 335
be confirmed as a matter of course. Mr. Hartman continues his
narrative of his further connection with the case and with Mr. Ord,
six months after, at the December term of the court, when it was
held at Los Angeles. He says that then Mr. Ord remarked to him that
it had been omitted at the time of the confirmation of the claim to
have a decree signed by the judge; that Mr. Ord requested him to
draw a decree, and to present it to the judge, to be signed
nunc pro tunc. He says that he did so without knowing or
suspecting that Mr. Ord had an interest in the land claimed by
Gomez. This statement by Hartman of his agency in the confirmation
of the claim, and in getting a decree upon it six months afterward
at the instance of Mr. Ord, is denied by the latter in his
affidavit,
excepting as to his declaration to the court that
the government had no objection to the confirmation of the
decree. The latter he admits in stronger terms than have been
given. We shall use the affidavit for other purposes, and will have
it printed in connection with this opinion, in justice to Mr. Ord,
that the relations between himself and Mr. Hartman may be properly
estimated from their respective declarations concerning it, only
remarking now that there is proof that Mr. Hartman had subsequently
declared himself to have been the attorney of Gomez in the case;
that he had been so in all that he had done in the case; and that
he had charged and demanded a fee for his services. It is not
necessary for us to attempt to reconcile these differences, but it
has certainly turned out unfortunately for Mr. Ord, in raising a
violent presumption, from the manner in which they acted in the
cause, that there was a concert between them to reverse the
decision of the commissioners and to obtain a decree in the
district court for the claimant.
Besides the motion of the Attorney General to vacate the order
dismissing the cause and to recall the mandate, a motion has been
filed by the claimant for a mandamus to compel the judge of the
district court to file the mandate and to permit the execution of
the decree confirming the claim. Another motion has also been made
by the claimant for a mandamus to compel the judge to dismiss the
proceedings before it upon the part of the United States, to open
the decree, and to obtain
Page 64 U. S. 336
a new trial. And there is also a third motion for a mandamus to
compel the Surveyor General to survey the land confirmed to
Gomez.
We shall not go into the consideration of these motions, but
will confine ourselves to that of the Attorney General, using,
however, such depositions as have been made under each of them,
which correspond with and confirm the record presented to the court
by the appellee, when he moved to have the cause docketed and
dismissed.
Judge Ogier, in a return made to the first motion for a
mandamus, certifies that the cause was tried by him upon the appeal
from the land commissioners, and that he gave a judgment confirming
the claim under the following circumstances:
Mr. Hartman presented the cause to the court, stating only its
title and its number upon the docket, and Mr. Ord appeared for the
government, and stated that there was no objection by the United
States to its confirmation. As a matter of course, without inquiry
or examination, that he directed a judgment of confirmation to be
entered, but that no decree was given at that term of the court,
nor was a motion made for one, or any motion for an appeal by the
United States to the Supreme Court. At a subsequent term of the
court, E. J. McKewen, representing Mr. Ord, made a motion for an
appeal in this cause and in several others; that, being then in
doubt if an appeal could be given after the expiration of the term
of the court at which judgment was rendered, he took the subject
under an advisement, and that then Mr. McKewen suggested that the
same point was under consideration in another case before the
Supreme Court, which determined him to reserve his decision until
that point was ruled here; then that Mr. Hartman offered a judgment
of confirmation, Mr. Ord assenting thereto, on behalf of the United
States, and it was ordered.
The case remained in this condition, the right of the United
States to an appeal being reserved until the 7th day of December,
1858, when Mr. Gitchell, having succeeded Mr. Ord as district
attorney, filed a motion for leave to withdraw Mr. McKewen's motion
for leave to appeal, and also filed another motion for a rehearing
of the cause, substituting the last for a
Page 64 U. S. 337
motion which had been made by Mr. Stanton, then in San
Francisco, and also representing the United States as its specially
retained attorney. A day was then fixed, with the consent of all
the parties, for hearing the pending motion. When the day arrived,
Mr. Gitchell made a motion for a continuance, with an affidavit
setting forth that the decree which had been given for the
confirmation of the claim had been fraudulently obtained from the
court, Mr. Ord having become the owner of half the land in
controversy by a conveyance from the claimant, and that he had
conspired with Gomez, or his assignees, to permit the judgment to
be given for Gomez without a contest on the part of the United
States. A copy of the conveyance from Gomez was filed with the
consent of the claimant.
Mr. Gitchell's motion for a continuance was refused on the
ground that the proper motion under his charges was to ask for
leave to file a bill of review. But Judge Ogier, feeling and
thinking that he had improvidently given a judgment of
confirmation, did continue the hearing of the motions to obtain
proofs, if any could be had, concerning the contrivance by which he
had been imposed upon. A commission was issued by him for that
purpose, and under it Mr. Sloan made the affidavit denying all
connection and attorneyship for Gomez, as has already been recited
in this opinion. The case then remained in the district court as it
was when the motions which were made, without any further action
upon that for an appeal.
This narrative has been given from documents, depositions, and
declarations of the parties concerned in the case, and also by
other persons, apparently disinterested, in respect to the land.
They will be found either on the record upon which the cause was
docketed and dismissed in this Court or in the book of exhibits
sent to this Court by Judge Ogier, which were obtained to enable
him to act understandingly upon the merits of the case. The case
being still before the court, we do not perceive any irregularity
in the proceedings. Besides the motion for granting the appeal, the
court had jurisdiction of the cause to determine what proceedings
the claimant was entitled to
Page 64 U. S. 338
under the circumstances of the case, to get the benefit of the
decree, by survey or otherwise.
We will now proceed to show, from the record of the case filed
in this Court by the claimant and from the official declarations of
the clerk of the district court from whom the record was obtained,
that this Court had no jurisdiction in the case when it was
docketed and dismissed.
Mr. Sims, the clerk of the court, deposes that in this case a
transcript was called for by letter, signed W. W. McGarrahan; that
when that letter was received, no appeal had been allowed to carry
the case to the Supreme Court, and that a motion for that purpose
was still under the advisement of the court. The deputy clerk, Mr.
Coleman, however, sent to McGarrahan a transcript, which was
received by McGarrahan, and, that not being satisfactory, it was
returned to the clerk with a letter from McGarrahan stating in what
particulars it was deficient, and among them that it was deficient
in
not having a copy of the order for an appeal to the
Supreme Court, which McGarrahan suggested would be found on the
minutes of the Court. To this letter a reply was given by Mr.
Stetson, who had succeeded Mr. Coleman as deputy, containing an
order for an appeal, as it appears on the transcript before us. It
is difficult to determine how such an order found its way into the
second transcript of the record when it was not in the first, and
when the clerk deposes that no such order had ever been given. The
order for an appeal may have been drawn in anticipation of the
action of the Court upon the pending motions, and left in the
clerk's office unintentionally, and supposed by the deputy clerk to
have been passed by the Court, or it may have been drawn by Mr. Ord
and left in the office, to keep up the semblance of his having
faithfully represented the United States in the case, or it may be
that some one of the parties interested in the land had
surreptitiously placed it in the transcript to accomplish the
purpose of having the case docketed and dismissed in this Court.
Dates will, in some measure, throw light upon the matter. It was
written and dated on the same day that the Court took under its
advisement the motion relating to the appeal. Such antagonism
in
Page 64 U. S. 339
the action of the court upon the same subject matter of such
importance as this was, would, indeed, be extraordinary, and the
record shows that it does not exist.
It is a delicate and most unwelcome task which we are
performing, but it must be done, in order that violated justice may
be vindicated, and that official purity of conduct in our courts
may be preserved and be unsuspected.
The record upon which this case was docketed and dismissed, in
connection with the book of exhibits sent to this Court by Judge
Ogier, establish, in our view, the following facts:
That Mr. Ord became the purchaser of half the land in
controversy from Gomez, the claimant, when he was the district
attorney of the United States; that whilst he was district
attorney, he prepared in his own hand the paper, signed by S. O.
Crosby, for the removal of the cause from the board of land
commissioners to the district court; that Mr. Ord did not
officially, as district attorney, represent the United States in
the case in the district court, in anyone particular, but allowed
it to be done by others, who were interested in establishing the
claim of Gomez, to whom he gave his official confidence, and who
are shown by the record not to have been the retained attorney of
Gomez; that he permitted a judgment to be taken against the United
States without argument, or the production of proof to establish
the validity of the claimant's right to the land, by saying to the
court, in his official character, that the United States had no
objection to the confirmation of the claim. And it is established
by the record itself that no appeal has been given to the United
States by the court below. Mr. Ord admits that he relies upon the
declaration only of the person to whom he confided the order which
he drew for an appeal, that it had been granted by the court.
Under such circumstances, we conclude that no appeal had been
granted; that the cause was not before us when the appellee made
his motion to docket and dismiss it.
A motion to docket and dismiss a cause from the failure of the
appellant to file the record within the time required by the
Page 64 U. S. 340
rule of this Court, when granted, is not an affirmance of the
judgment of the court below. It remits the case to the court to
have proceedings to carry that judgment into effect, if in the
condition of the case there is nothing to prevent it. That is for
the consideration of the judge in the court below, with which this
Court has nothing to do, unless his denial of such a motion gives
to the party concerned a right to the writ of mandamus. The case is
before us also upon such a motion, but we do not consider it upon
the ground that this Court had no jurisdiction of the case when it
was docketed and dismissed, and that the appellee had no right to
make that motion, under the rule of this Court. All that we shall
now do will be to correct an irregularity in the order given by
this Court in a case in which we believe it had no jurisdiction,
and because the circumstances of it disclose that the judgment in
the court below had been obtained by contrivance, and with the
consent of the district attorney, in violation of his obligations
to the United States, from which he necessarily anticipated a
benefit, being then owner of half the land in controversy.
In vacating the order for the dismission of the case and for
recalling the mandate, we do no more than to correct a proceeding
improvidently allowed by the Court under a misrepresentation to it
of the actual condition of the cause in the court below. Orders of
the same kind for misrepresentation have often been made and
allowed. We cite two cases from the English reports. In
Stewart
and E. Drew, petitioners, and P. J. Agnew, in Shaw's Reports,
it was held to be incompetent to repeal a case on the merits
formerly argued, and on which judgment had been pronounced by the
House of Lords, but that the judgment might be amended on a point
in which no decision had been given by the court of session, and on
which no argument had been had, through misrepresentation stated in
the House of Lords by the party against whom the judgment was
pronounced. 1 Shaw 413.
In
Ex Parte James White, Courtenay, et al., 4 House of
Lords Cases 313, it was ruled upon petition that a judgment of the
House given on appeal cannot be reversed, but when such appeal
judgment have been obtained by suppression
Page 64 U. S. 341
and misrepresentation, the house will afterwards discharge the
order granting leave to appeal and the order constituting the
judgment thereon.
Much was said in the argument of this motion concerning
declarations and a correspondence of the Attorney General in
relation to an appeal having been taken in the court below for the
United States. It matters not what they were or how the attorney
treated the matter if he was deceived as to the actual fact of an
appeal having been allowed. If it turns out to be that it had not
been, any admission to the contrary cannot affect the United
States.
Since the case was argued, the counsel for the claimant, with
the consent of the Attorney General, has placed before us an
affidavit made by Mr. Ord in explanation of his conduct in the
trial of the cause in the district court, embracing his connection
with Gomez and his purchase from him of half of the land in
controversy. We believe it to be proper to give him the benefit of
his own narrative, and therefore shall direct his affidavit to be
printed in the forthcoming volume of the Reports of this term of
the court, with this opinion.
We direct that the order for docketing and dismissing this cause
shall be vacated, and that the mandate which followed it shall be
recalled.
The motion of the Attorney General for such purpose is
Granted.
