1. Where a title under a settlement certificate issued under an
act of Congress is set up by a party in the highest court of a
state, and the decision of such court is against the title so set
up, a writ of error lies from this Court under the twenty-fifth
section of the Judiciary Act.
2. Approval by the judge of a bond for prosecution of a writ of
error may be inferred from the facts of the transaction. And where
the record showed that the bond bad been duly executed, that the
sureties had been sworn to their sufficiency by the judge who
signed the citation, and that all was done on the same day,
held that it might be inferred that the bond was approved
by the judge.
THE CHIEF JUSTICE delivered the opinion.
The record shows a suit in equity to quiet title to a certain
tract of land which belonged to the complainant's intestate against
the alleged inequitable claims of the defendants.
The complainant claimed title under a settlement certificate
issued under the Act of Congress of September 27, 1850, relating to
donations to settlers upon the public lands, and the decision of
the court was against the title claimed under the authority of that
act. There is no doubt, therefore, that the complainant was
entitled to his writ of error to bring the judgment of the state
court under the review of this Court.
Another ground of dismissal more relied upon was that the bond
for prosecution was not taken as required by law. It appears from
the record that the writ of error was duly issued; that a bond for
prosecution of the writ was executed; that the sureties made oath
to their sufficiency before E. D. Shattuck, Chief Justice of
Oregon; that the citation in error was signed by the same judge;
and that all these things were done on the same day, namely, the
8th of October, 1866. The law requires that the judge signing the
citation shall take good and sufficient security. This doubtless is
equivalent
Page 73 U. S. 441
to a provision that the judge shall approve the bond. But no
particular form of approval is required. Approval may be inferred
from the facts of the transaction. And we think it a fair and
indeed almost necessary inference from the fact of the sureties'
being sworn to their sufficiency by the judge who signed the
citation that the security was taken by him as required by law.
Motion denied.
MR. JUSTICE CLIFFORD:
I dissent from the views expressed by the Court in the second
ground assumed in favor of dismissing the writ of error.