&1 .This' answer is 8.8ubstitute for the common-law plea in abatement, and only differs from it in name. Section 193 provides: "If no objection be taken by either demuner or answer, the defendant shall be deemed to have waived the same, exnot inclndingdefects of parties. -1M v. Wilku, 27 How. Pr.e 886.; Pavi8ich v. Bean, 48, Cal. 364. Th$jlldgment.is revetSed, and the case is remanded for a Dew trial.
OAm>BELL
11.Smvu Bow BARR MINING Co.
Acnow
maintain an action to recover poB8e8810n of real property from which he haB beeJa oUllted by 8 mere intruder. (SUlZabUB Du the Oourt.)
By the law of Oregon, which ill in force in Alaska, .. penon in
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PROPBBTY.
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1IlII1
Error to the District Courkof·the, Upited States for the District of Alaska. At kctioDof ejectment. by A;rehibaltl, Campbell against the Silver Bow Basin Mining Company. From a judgment sustaining deto plaintiff'scofuPlaint;plaintiff 'prought 'error; Reversed. C. 8.J.(jh'fl¥!n G. lleid, (W: 8,. Wood, of. counsel,) for plaintiff in ' , . . Before DEADY, IIAWLEY, and MORROW, Di!ltrict.Judges. . : I " , , .' . .'
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DEADT,District Judge. This action is brought to recover the posBession9fadump clailnfor mill tailings, lhrrismining district, in the district of Alaska. n is alleged, in the amended complaint, that the claim does not connc) valuel either as agri(fultura! orminerallandj tain fivea.erJsj'snd that the plaintiff i8 the\ownerin:feeo[ the mining claim 'known Bsthe "Fuller First Lode," situate in Sitver Bow bllsin,in the district afore.said, which is very valtul.ble for the gold it contains; that the plaintiff. fortbJ pur»oseof mining said:lode, has built located and appropriated said dump claim, which is about 1,150 feet south'Of said quartz-mill, and more than $5,000, and is essential to the ,prope'r working of said lode; that while the plaintiff was 'so possessed 'and 'entitled to the possession of said dump claim the defendant entel'tSd the BllDle, and ousted'· pla;intiff and still wrongfully witbliolos the possession thereof from the plaintiff." '.' ' There was a demurrer to the complaint, which was by t9:e -oontt·. !' Tbe ease is'1ht\re oiferror, for review of the' decision on the ,demtlrl'et.' ill'M opinion of the court be16w, ,in the recOrd. nOr'it or,appearance of counsel for the defendartt. " ')1 .f"
the complaint, and admitted l:iy the demurrer, the plaintiff is entitled to recover. He appears to have. had, at least, 'possessmn,of lthe. claim,and tbedefendant ousted him without a shadow . of. right, @pia,rinfact, a nakedJrespasser. TheJawsQ!,;tbe state of this procedure, (23 St. p. 25,) and by them any "person who has a legal estate in real property, and a maY,reqQver SucQPossession,with presetttl'ight to Jb.epossessioll damages for withholding the same, by an action at law." Hill's Compo 1887, § 316. In Wilson v. Jiline, 14 Sawy.38, 38 Fed. Rep. 789, it was held, in the United States circuit court for the district of Oregon, that a person in the poflsessiO'n 'of re81 ]J1'operty'might maintain this8ction to recover the same against a mere intruder or wrong-doer. The judgment bf the is reversed; and:tbecause is r. manded for further proceedings with this <>pinion. t'i;'
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BOYD.
(CfreuUCourt Qt. AppealA, Ef{Jht1l. '.
mrcuu. ERROR.,
lIS. 18ft.) ,
A writ of habea8 corpm cantlOt be used as a mere substitute for a Writ of error. but will only be issued if applied for to relieve from imprisonment under the order ',"1' selltence of Bome, inferior court, when such court has acted without jul'i'sdiction, or hali exceeded its jl11'isdi'ction, and its order is for that reason void.
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OF
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I. SPIRITUOUS LIQUORS-INTRODUCTION INTO INDIAN COUNTRy-INFORM·ATION.
An lodged With States commissionj'lr, oharged the accused with "introducing ten gallons of beer into the Indian country the same being then anqthere spirituous liquor, in violation of section 2189, Rev. St. Held, that , ,introducing spirituous liquor intatOO Indian country was an offense under section 2169;, that the <;emmissipnerhad jurisdiQtion of such offenses, and the power to de. tennIne if beer was a spirituous liqUor; 'and that his decision on that question could not be reviewed on a writ of habeas corpus. ' '. ; .... " .. ;. : ,"0. ,
from the, United State!! Court in the Indian Territory. Application by Silas J. BoyctJor a writ of habeas C01]J'UB. The writ and he appeals., ' Affirmed. lV. B. Joh'1l8O'1l. and a. B. Stuart, for appellant. , ,Before, CALDWJi);LL, Circuit Judge, and 8HIRAS and THAYER, Districi J,u,dgtls. . T:El4YER, District Judge. This is.an appeal from an order olthe United ,Statel'l,cpl1rt in the Indian Territory, denying an application for a writ of habea8,corp'U$. An information appears to have been lodged with a United States commissioner1 in the Indian Territory, which was intended to charge a.l?pellant with .the commission of an offense under section 2139, Rev. ,b'. The commissioner issued a warrant, IUld" after an arrest and in. due form, committed the. accused in defalllt of bail for trial before the United States court in the Indian TerritOfY. Thereupon the
Albert Rennie.