is imprisoned only to prevent his entry, and an unconditional release would make the entry complete without the requisite proof. The courts must deal with the matter somehow, and there seems to be no way so convenient as a trial of the merits before the judge. If the petitioner proves his citizenship, a longer restraint would be illegal. If he fails, the order of deportation would remain in force. We recur in closing to the caution stated at the beginning, and add that, while it is not likely, it is possible, that the officials misinterpreted rule 6 as restricting the right to obtain witnesses which the petitioner desired to produce, or rule 7, commented on in United States v. Sing Tuck, 194 U. S. 161, 169, 170, 24 Sup. Ct. 621, 48 L. Ed. 917, 921, as giving them some control or choice as to the witnesses to be heard. But, unless and until it is proved to the satisfaction of the judge that a hearing properly so called was denied, the merits of the case are not open, and, we may add, the denial of a hearing cannot be established by proving that the decision was wrong. Order reversed. Writ of habeas corpus to issue. SECTION 80.-PUBLIC LANDS UNITED STATES v. MINOR. (Supreme Court of the United States, 1885. 114 U. S. 233, 5 Sup. Ct. 836, 29 L. Ed. 110.) Appeal from the Circuit Court of the United States for the District of California. This is an appeal from a decree of the Circuit Court for the District of California, dismissing the bill of the United States on demurrer. The object of the bill was to set aside and annul a patent issued. by the United States to Minor, on January 5, 1876, for the N. W. 14 of section 18, township 6 N., range 2 E. of the Humboldt meridian. The bill as originally filed made, in substance, the following allegations: That said Minor, on the twenty-third day of October, 1874, filed the declaratory statement in the land office necessary to give him a right of pre-emption to the land, alleging that he had made a settlement on it March 20 of that year; and on June 20, 1875, he made the usual affidavit that he had so settled on the land in March of the previous year; that he had improved it, built a house on it, and continued to reside on it from the time of said settlement, and had cultivated about one acre of it. He also made affidavit, as the law required, that he had not so settled upon and improved the land with any agreement or contract with any person by which the title he might acquire would inure to the benefit of the latter. He also made oath that he was not the owner of 320 acres of land in any state or territory in the United States. These affidavits being received by the register and receiver as true, he paid the money necessary to perfect his right, received of them the usual certificate, called a patent certificate, on which there was issued to him at the General Land Office in due time the patent which is now assailed. The bill then charges that all these statements, made under oath before the land officers, were false and fraudulent; that defendant had never made the settlement nor cultivation nor improvements mentioned; that he had never resided on the land, but during all the time had lived and had his home in a village about 12 miles distant; and that he had not made these proofs of settlement to appropriate the land to his own use, but with intent to sell the same to some person unknown to the plaintiff. It is also charged that defendant produced, in corroboration of his own statement, the affidavit of a witness, one Joseph Ohuitt, who testified to the settlement, improvement, and residence of defendant, all of which was false and fraudulent. It is then alleged that by these false affidavits the land officers, supposing them to be true, were deceived and misled into allowing said pre-emption claim and issuing said patent, to the great injury of the United States. * * * The circuit and district judges have certified a division of opinion on eight propositions of law, which they believe to arise out of this demurrer, as follows: (1) Whether the frauds and perjury alleged in the bill as the equitable grounds for vacating the patent in question. are frauds extrinsic and collateral to the matter tried and determined in the land office upon which the patent issued, and constitute such frauds as entitle the complainant to relief in a court of equity. (2) Whether perjury and false testimony in a proceeding before the land office, such as alleged in the said amended bill, by means of which a patent to a portion of the public land is fraudulently and wrongfully secured, is such a fraud as will require a court of equity to vacate the patent on that ground alone. (3) Whether the decision and determination of the questions involved on false and perjured testimony, as set forth in the said amended bill, and the issue of a patent thereon, are not conclusive as against the United States on a bill filed to vacate the patent so issued. * * * MILLER, J.38 * * * The first three questions may be considered together. If an individual or a corporation had been induced to part with the title to land, or any other property, by such a fraud as that set out in this bill, there would seem to be no difficulty in recovering it back by appropriate judicial proceedings. If it was a sale and conveyance of land induced by fraudulent misrepresentation of facts which 28 Only a portion of this case is printed. had no existence, on which the grantor relied, and had a right to rely, and which were essential elements of the consideration, there would be no hesitation in a court of equity giving relief; and where the title remained in the possession of the fraudulent grantee, the court would surely annul the whole transaction, and require a reconveyance of the land to the grantor. The case presented to us by the bill is one. of unmitigated fraud and imposition, consummated by means of rep was false. The law and the rules governing these pre-emption sales required in every instance the settlement and residence for a given time on the land, the actual cultivation of a part of it, and building a house on it. It required that the claimant should do this with a purpose of acquiring real ownership for himself and not for another, nor with at purpose to sell to another. In the case as presented by this bill none of these things were done, though the land officers were made to believe they were done by the false representation of the defendant. It was a case where all the requirements of the law were set at naught, evaded, and defied by one stupendous falsehood, which included all the requirements on which the right to secure the land rested. There can be no question of the fraud, and its misleading effect on the officers of the government, and, in a transaction between individuals, it makes a clear case for relief. Is there anything in the circumstance that these misrepresentations were supported by perjury, that the defendant made oath to his falsehoods, and procured a false affidavit of a witness to corroborate himself, which should deprive the injured party of relief? It would seem rather to add to the force of the reasons for such relief that fraud and falsehood were re-enforced by perjury. Is there any reason to be found in the relation of the government to such a case as this, which will deprive it of the same right to relief as an individual would have? On the contrary, there are reasons why the government in this class of cases should not be held to the same diligence in guarding against fraud as a private owner of real estate. The government owns millions and millions of acres of land, which are by law open to pre-emption, homestead, and public and private sale. The right and the title to these lands are to be obtained from the government only in accordance with fixed rules of law. For the more convenient management of the sale of these lands, and the establishment by individuals of the inchoate rights of pre-emption and homestead, and their final perfection in the issuing of a title called a patent, there is established in each land district an office in which are two officers, and no more, called register and receiver. These districts often include 20,000 square miles or more, in all parts of which the lands of the government subject to sale, pre-emption, and homestead are found. These officers do not, they cannot, visit these lands. They have maps showing the location of the government lands, and their 635 subdivision into townships, sections, and parts of sections, and when a person desires to initiate a claim to any of them, he goes before them and makes the necessary statements, affidavits, and claims, of all which they make memoranda and copies, which are forwarded to the General Land Office at Washington. For the truth of these statements they are compelled to rely on the oaths of the parties asserting claims, and such ex parte affidavits as they may produce. In nine cases out of ten, perhaps in a much larger percentage, the proceedings are wholly ex parte. In the absence of any contesting claimant for a right to purchase or secure the land, the party applying has it all his own way. He makes his own statement, sworn to before those officers, and he produces affidavits. If these affidavits meet the requirements of the law, the claimant succeeds, and what is required is so well known that it is reduced to a formula. It is not possible for the officers of the government, except in a few rare instances, to know anything of the truth or falsehood of these statements. In the cases where there is no contesting claimant there is no adversary proceeding whatever. The United States is passive; it opposes no resistance to the establishment of the claim, and makes no issue on the statement of the claimant. When, therefore, he succeeds by misrepresentation, by fraudulent practices, aided by perjury, there would seem to be more reason why the United States, as the owner of land of which it has been defrauded by these means, should have remedy against that fraud-all the remedy which the courts can give-than in the case of a private owner of a few acres of land on whom a like fraud has been practiced. In a suit brought by Moffat against the United States to set aside a patent for land on the ground of fraud in procuring its issue, this court said: "It may be admitted, as stated by counsel, that if, upon any state of facts, the patent might have been lawfully issued, the court will presume, as against collateral attack, that the facts existed; but that presumption has no place in a suit by the United States directly assailing the patent and seeking its cancellation for fraud in the conduct of those officers." 112 U. S. 24, 5 Sup. Ct. 10, 28 L. Ed. 623. The principle is equally applicable when those officers, though wholly innocent, were imposed upon and deceived by the fraud and false swearing of the party to whom the patent was issued. The learned judge whose opinion prevailed in the Circuit Court and dusting. ca is found in the record, has been misled by confounding the present judicial proced case with that of U. S. v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93, and Vance v. Burbank, 101 U. S. 514, 25 L. Ed. 929, and thus applying had been had principles to this which do not belong to it. In Throckmorton's Case, it is true, a part of the relief sought was to set aside a patent for land issued by the United States. But the patent was issued on the confirmation of a Mexican grant after proceedings prescribed by the act of Congress on that subject. These proceedings were judicial. They commenced before a board of commissioners. There were pleadings and parties, and the claimant was plaintiff, and the United States was the defendant. Both parties were represented by counsel-the United States having in all such cases her regular district attorney to represent her. Witnesses were examined in the usual way, by depositions, subject to cross-examinations, and not by ex parte affidavits. From this tribunal there was a right of appeal to the district court, and from that court to the Supreme Court of the United States, by either party. There was nothing wanting to make such a proceeding, in the highest sense, a judicial one, and to give to its final judgment or decree all the respect, the verity, the conclusiveness, which belong to such a final decree between the parties. The patent could only issue on this final decree of confirmation of the Spanish or Mexican grant, and was, in effect, but the execution of that decree. It was to such a case as this that the ruling in Throckmorton's Case was applied. The court said in that case, which was a bill to set aside the decree of confirmation: "The genuineness and validity of the concession from Michelterona, produced by complainant, was the single question pending before the board of commissioners and the district court for four years. It was the thing, and the only thing, that was controverted, and it was essential to the decree. To overrule the demurrer to this bill would be to retry, twenty years after the decision of those tribunals, the very matter which they tried, on the ground of fraud in the document on which the decree was made. If we can do this now, some other court may be called on twenty years hence to retry the same matter on another allegation of fraudulent combination in this suit to defeat the ends of justice; and so the number of suits would be without limit and litigation endless about the single question of the validity of this document." It needs no other remarks than those we have already made, as to the nature of the proceeding before the land officers, to show how inappropriate this language is to such a proceeding. Here no one question was in issue. No issue at all was taken. No adversary proceeding was had. No contest was made. The officers, acting on such evidence as the claimant presented, were bound by it and by the law to issue a patent. They had no means of controverting its truth, and the government had no attorney to inquire into it. Surely the doctrine. applicable to the conclusive character of the solemn judgments of courts, with full jurisdiction over the parties and the subject-matter, made after appearance, pleadings, and contest by parties on both sides, cannot be properly applied to the proceedings in the land office in such cases. So, also, as regards the case of Vance v. Burbank, 101 U. S. 514, 25 L. Ed. 929, the language of the court in regard to the conclusiveness of the decision of the land office must be considered with reference or from a case quase joh heart to the case before it. That was not a case by the grantor, the United Amesh adm States, to set aside the patent, but by a party, or the heirs of a party, who had contested the right of the grantee before all the officers of |