tificates of purchase, might have been a vio-, with equal propriety, that they were delation of the policy of the states of Cali- frauded of nothing. The result of the arfornia and Oregon, and a fraud upon such states, it fails to show that the United States could have in any way been defrauded. The argument assumes that the title acquired by the defendants from the states in question was such a title as, upon conveyance to the United States, would vest in the latter a title good as against all the world, and therefore that the United States were not defrauded.

While it is doubtless true that, by means of these corrupt and fraudulent practices, Hyde and Benson may have obtained titles to these lands, it does not follow that the states might not have disaffirmed such titles, and recovered the lands. In this particular the case is covered by that of Moffat v. United States, 112 U. S. 24, 28 L. ed. 623, 5 Sup. Ct. Rep. 10. Nor does it follow that, when subsequent conveyances were made to the United States of these lands under the act of June 4, 1897, a good title was vested in the grantee. In the Moffat Case it was held that a patent issued to a fictitious person conveys no title which can be transferred to a person subsequently purchasing in good faith from a supposed owner. In delivering the opinion of the court, Mr. Justice Field observed: "The patents, being issued to fictitious parties, could not transfer the title, and no one could derive any right under a conveyance in the name [81]of the supposed patentees. A patent to a fictitious person is, in legal effect, no more than a declaration that the government thereby conveys the property to no one. There is, in such case, no room for the application of the doctrine that a subsequent bona fide purchaser is protected. A subsequent purchaser is bound to know whether there was in fact a patentee,-a person once in being, and not a mere myth,-and he will always be presumed to take his conveyance upon the knowledge of the truth in this respect. To the application of this doctrine of a bona fide purchaser there must be a genuine instrument, having a legal exist ence, as well as one appearing on its face to pass the title. It cannot arise on a forged instrument or one executed to fictitious parties, that is, to no parties at all, however much deceived thereby the purchaser may be."

gument, then, is that, although a gross imposition was practised upon the states by the procuring of patents in favor of fictitious persons or of disqualified persons by the use of forged affidavits, assignments, or other documents, no indictment therefor would lie because the states had received the same consideration they would have received had the patents been issued to persons qualified under the statutes to purchase the lands. The unsoundness of this argument needs no demonstration. The states have a right to punish a violation of a statute enacted as part of their public policy, notwithstanding they may have suffered no pecuniary damage therefrom.

The same argument applies to the United States, whose lands have been procured in plain violation of the spirit, if not the letter, of the statute, and by a further step in the same fraudulent *scheme. By the act[82] of June 4, 1897 (30 Stat. at L. 36, chap. 2, U. S. Comp. Stat. 1901, p. 1541), it is provided that in any case in which a tract covered by an unperfected bona fide claim, or by a patent, is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, etc. The privilege of the act is therefore reserved to a settler or owner; and as there is no claim that Hyde was a settler upon the lands, it only remains to consider whether he was an "owner" within the act. Although the word "owner" has a variety of meanings, and may, under certain circumstances, include an equitable as well as a legal ownership, or even a right of present use and possession, it implies something more than a bare legal title, and we know of no authority for saying that a person in possession of land under a void deed can be regarded as the owner thereof. Ownership may not imply a perfect title, but it implies something more than the possession of land under a title which is void; and when the government holds out to owners of lands an inducement to relinquish such lands in exchange for others, it implies that the persons with whom it is dealing, if not the owners in fee simple, are at least bona fide owners, with authority to dispose of and vest a good title thereto. We are clear that The argument that this indictment cannot the defendant does not fall within this catbe sustained because the United States, hav-egory, and that the United States may justing received the school lands in lieu of the ly claim to have been defrauded out of the lands patented, were defrauded of nothing, land patented to him. Cosmos Exploration if valid at all, applies equally to the school Co. v. Gray Eagle Oil Co. 190 U. S. 301lands for which the states of California and 308, 47 L. ed. 1064, 23 Sup. Ct. Rep. 692; Oregon must have received a statutory com- Johnson v. Crookshanks, 21 Or. 339, 28 Pac. pensation, fixed at $1.25 per acre. Having 78; Fallbrook Irrig. District v. Abila, 106 received this compensation it may be said, | Cal. 355, 39 Pac. 794.

Whatever may be the rule in equity as to the necessity of proving an actual loss or damage to the plaintiff, we think a case is made out under this statute by proof of a conspiracy to defraud, and the commission of an overt act, notwithstanding the United States may have received a consideration for the lands, and suffered no pecuniary loss. MacLaren v. Cochran, 44 Minn. 255, 46 N. W. 408. The law punishes the false practices by which the lands were obtained, and the question whether the government stands in the position of a bona fide pur[83] chaser *with respect to the school lands is not one which can be litigated in a criminal prosecution for a violation of law.

Even if the United States were in a position to claim the rights of a bona fide purchaser to the state lands, the methods by which these lands were acquired from the states, and the lands in exchange therefor procured from the United States, would be none the less a fraud, of which the latter might take advantage in a criminal prosecution. The indictment under § 5440 charges a conspiracy to defraud the United States out of the possession, use of, and title thereto, of divers large tracts of public lands; and if the title to these lands were obtained by fraudulent practices and in pursuance of a fraudulent design, it is none the less within the statute, though the United States might succeed in defeating a recovery of the state lands by setting up the rights of a bona fide purchaser. Under the circumstances it cannot be doubted that the United States might maintain a bill to cancel the patents to the exchanged lands proeured by these fraudulent means, notwithstanding their title to the forest reserve lands might be good.

in the cases of Ex parte Watkins, 3 Pet.
193-206, 7 L. ed. 650-654, and Ex parte
Parks, 93 U. S. 18, 23 L. ed. 787, in both of
which the petitioners sought *by writ of ha-[84]
beas corpus to review the validity of cer-
tain indictments under which they had been
convicted in the courts below, and in both
this court declined to review the action of
the court below. It was held that the ques-
tion whether the act charged was or was
not a crime was one which the trial court
was competent to decide, and which this
court would not review upon a writ of ha-
beas corpus.

Our conclusion is that for the purposes of this case the indictment is sufficient.

4. The fourth assignment-that there was no probable cause for believing the petitioner guilty of the offense charged, and that the writ of certiorari should have been issued to bring the record before the courtis based upon that clause of § 1014, which requires that proceedings for the removal of persons from one district to another shall be "agreeably to the usual mode of process against offenders in such state," and § 1487 of the Code of California is cited to the effect that the petitioner shall be discharged where he has been committed upon a criminal charge without reasonable or probable cause. Certain cases are also cited from the supreme court of California, to the effect that it is the right of the prisoner to have the court consider the question of probable cause upon the writ of habeas corpus. People v. Smith, 1 Cal. 9; Ex parte Palmer, 86 Cal. 631, 25 Pac. 130; Ex parte Walpole, 85 Cal. 362, 24 Pac. 657. But see contra, Ex parte Long, 114 Cal. 159,

45 Pac. 1057.

In the Federal courts, however, it is well Other minor objections are taken to the will not weigh the evidence, although, if settled that upon habeas corpus the court indictment: that no description is given of there is an entire lack of evidence to support the lands out of which the defendants are the accusation, the court may order his disalleged to have conspired to defraud the charge. In this case, however, the producgovernment (Dealy v. United States, 152 U. tion of the indictment made at least a S. 539, 543, 38 L. ed. 545, 547, 14 Sup. Ct. prima facie case against the accused, and Rep. 680); that it is uncertain in its al- if the commissioner received evidence on his legations as to the means to be used to behalf it was for him to say whether, upon carry out the alleged conspiracy; that the the whole testimony, there was proof of names representing the fictitious persons probable cause. Re Oteiza y Cortes (Oteiza and of those not qualified to purchase, y Cortes v. Jacobus), 136 U. S. 330, 34 L. through whom the fraud was effected, are ed. 464, 10 Sup. Ct. Rep. 1031; Bryant v. not given; that the allegations of the in- United States (Ex parte Bryant), 167 U. dictment are indefinite and inconsistent; | S. 104, 42 L. ed. 94, 17 Sup. Ct. Rep. 744. that the conclusion is improper, etc. The requirement that the usual mode of process adopted in the state shall be pursued refers to the proceedings for the *ar-[85] rest and examination of the accused before the commissioner; but it has no bearing upon the subsequent independent proceeding before the circuit court upon habeas corpus. In this case the commissioner did receive

It is sufficient to say of these objections that they are proper to be considered by the trial court, and that we do not feel called upon to express our own opinion in regard to them. Criticisms of this character are completely covered by the recent decision of this court in Benson v. Henkel, as well as

evidence on behalf of the appellants, and, | the defendant was, and had been for twenty upon such evidence, found the existence of probable cause, and committed the defendants, and upon application to the district judge for the warrant of removal he reviewed his action, but did not pass upon the weight of the evidence.

There was no error in the action of the Circuit Court, and its judgment is therefore affirmed.

years, a resident. In other words, it was claimed that the evidence before the commissioner showed conclusively and without contradiction that there was no probable cause to believe the defendants guilty of any offense as charged in the indictment. The writ of certiorari was called for in order that this evidence might be brought before the circuit judge, so that he could see from it that there was affirmative and conclusive proof of the absence of probable cause. The applications for the writs of habeas corpus and of certiorari were both denied. The opinion of the circuit judge, delivered upon refusing the writs, shows that the question of the want of probable cause to believe defendants guilty, based upon the absence of both defendants from the District of Columbia at the time of the alleged formation of the conspiracy, was not touched upon by him, but the objections considered were those based upon the charge contained in the indictment, and whether it charged an offense under the laws of the United States. This court now holds that the refusal of the judge to grant the writ of certiorari was within his discretion.

While the circuit court may have had power to issue a writ of certiorari auxiliary to the writ of habeas corpus (Ex parte Burford, 3 Cranch, 448, 2 L. ed. 495; Re Martin, 5 Blatchf. 303, Fed. Cas. No. 9,151; Ex parte Bollman, 4 Cranch, 100, 2 L. ed. 563; Church, Habeas Corpus, § 260), it was under no obligation to do so, and its refusal cannot be assigned as error. Certiorari is a discretionary writ, and is often denied where the power to issue it is unquestionable. People ex rel. Church v. Allegany County, 15 Wend. 206; People ex rel. Vanderbilt v. Stilwell, 19 N. Y. 531; Rowe v. Rowe, 28 Mich. 353. Petitions for habeas corpus are frequently accompanied by applications for certiorari as ancillary thereto, and both are awarded or denied together. Appellant had nothing to complain of in the denial of the writ, and his petition should have set forth the evidence relied upon to show a want of probable cause. I think this is not the case for the apTerlinden v. Ames, 184 U. S. 279, 46 L. ed.plication of the rule *stated in the cases [87] 541, 22 Sup. Ct. Rep. 484; Craemer v. cited in the opinion of the court. Those Washington, 168 U. S. 128, 42 L. ed. 408, 18 from New York were based upon a matter Sup. Ct. Rep. 1. of public policy, where the purpose was to overturn proceedings in assessments and taxation, in which the public was interested, and the courts refused in such cases to grant the writ. The result of the refusal in this case is to prevent the review of the findings of the commissioner before whom the original proceeding was had, upon the question of probable cause. I admit that the weight of evidence will not, in such cases, be reviewed here, but evidence which conclusively rebuts the presumption of probable cause arising from the indictment, and which is uncontradicted, may be looked at, and a finding of probable cause reversed. In order to refer to it the evidence must be part of the record, and in such a case as this the application for a writ of certiorari to bring up the evidence which the petitioner avers shows such fact is not adaressed to the discretion of the court, but, on the contrary, the petitioner has the right to demand that it shall be granted. The right is none the less when the want of probable cause rests upon conclusive evidence of the absence of the defendants from the district at the time when the indictment alleges the conspiracy was formed in such district. If defendants were not then there, they could not be guilty of the crime charged in the indictment. This case is an extreme illustration of the very great

Mr. Justice Peckham (dissenting):

I dissent from the opinion and judgment of the court in this case, and wish simply to state the grounds of my dissent, without any attempt to do more. The indictment [86]avers that the *conspiracy was entered into in Washington, District of Columbia, on December 30, 1901, and the opinion holds, in substance (and rightly, as I think), that it is essential to aver its formation in the District in order to give the courts therein jurisdiction of the offense. The indictment constitutes prima facie evidence of probable cause, but evidence may be given to rebut it. It is averred in the application for the writs of habeas corpus and certiorari, in the case of Hyde, that the evidence taken before the commissioner showed indisputably that the petitioner was never in the District of Columbia, except upon one occasion in 1901, and then only for about six hours, and that he was not then guilty of any of the offenses charged in the indictment; and in the case of Dimond, it was said the evidence showed that the transactions complained of as a conspiracy occurred in California or Oregon, of which former state

Argucd February 21, 23, 1905. Decided May Ct. Rep. 680; Berkowitz v. United States,

APPEAL from the Circuit Court of the Skinner, 33; Smith V. Cranshaw (Term

People v. Swift, 96 Cal. 165, 31 Pac. 16;
Colorado Coal & I. Co. v. United States, 123
U. S. 307, 31 L. ed. 182, 8 Sup. Ct. Rep. 131;
United States v. California & 0. Land Co. 1
C. C. A. 330, 7 U. S. App. 128, 49 Fed. 496,
Affirmed in 148 U. S. 31, 40, 41, 37 L. ed.
354, 359, 360, 13 Sup. Ct. Rep. 458; United
States v. Winona & St. P. R. Co. 165 U. S.
463, 478, 41 L. ed. 789, 796, 17 Sup. Ct. Rep.
.368; Marshall v. Farmers' Bank, 115 Cal.
330, 42 Pac. 418, 47 Pac. 52.

Re Nielsen, 131 U. S 176, 33 L. ed. 118,
9 Sup. Ct. Rep. 672; Re Coy, 127 U. S. 731,
32 L. ed. 274, 8 Sup. Ct. Rep. 1263; Re Snow,
120 U. S. 274, 30 L. ed. 658, 7 Sup. Ct. Rep.
556; Re Sawyer, 124 U. S. 200, 31 L. ed. |
402, 8 Sup. Ct. Rep. 482; Ex parte Bain, 121
U. S. 1, 30 L. ed. 849, 7 Sup. Ct. Rep. 781;
Re Ayres, 123 U. S. 443, 31 L. ed. 216, 8 Sup.
Ct. Rep. 164; Ex parte Siebold, 100 U. S.
371, 25 L. ed. 717; Ohio v. Thomas, 173
S. 276, 43 L. ed. 699, 19 Sup. Ct. Rep. 453.
It has been the practice in all Federal ju-
risdictions, in removal proceedings, to de-
termine whether the indictment sufficiently
charges a crime, and to discharge the pris-
oner if it does not.

Stewart v. United States, 55 C. C. A. 641,
119 Fed. 89; Re Buell, 3 Dill. 116, Fed. Cas.
No. 2,102; Re Terrell, 51 Fed. 213; Re Corn
ing, 51 Fed. 205; Re Dana, 68 Fed. 886;
United States v. Lee, 84 Fed. 626; Re
Greene, 52 Fed. 104; Re Belknap, 96 Fed. |
614; Re Huntington, 68 Fed. 881; United
States v. Conners, 111 Fed. 734; Re Doig, 4
Fed. 193; Re Palliser (Palliser v. United
States) 136 U. S. 257, 34 L. ed. 514, 10 Sup.
Ct. Rep. 1034.

An indictment which fails to show as the
object or means of the conspiracy a scheme
or agreement which would result in defraud-
ing the United States is fatally defective.

United States v. Crafton, 4 Dill. 145, Fed.
Cas. No. 14,881; United States v. Reichert,
32 Fed. 142; United States v. Taffe, 86 Fed.
113; United States v. Milner, 36 Fed. 890;
United States v. Barnhart, 33 Fed. 459.

No proposition of law is better settled
than that there is no implied warranty of
title in a conveyance of land without cove-
nants, and that expressed covenants in the
conveyance exclude all implied covenants.

Frost v. Raymond, 2 Caines, 188, 2 Am.
Dec. 228; Cal. Civ. Code, § 1113; Bryan v.
Swain, 56 Cal. 616; Peabody v. Phelps, 9
Cal. 213; Bellinger & Cotton's Anno. Codes
& Statutes, § 5338; Taggart v. Risley, 4 Or.
235; Baldwin v. Leroy, Fed. Cas. No. 800a;
Huntly v. Waddell, 34 N. C. (12 Ired. L.)
32; Bethell v. Bethell, 54 Ind. 428, 23 Am.
Rep. 650; Aiken v. Franklin, 42 Minn. 91,
6 L. R. A. 360, 43 N. W. 839; Allen v.
Pegram, 16 Iowa, 163; McKesson v. Hen-
nessee, 66 N. C. 473; McDonough v. Martin,
88 Ga. 675, 18 L. R. A. 346, 16 S. E. 59;
Lamb v. Kamm, 1 Sawy. 238, Fed. Cas. No.
8,017.

It is equally elementary that no contract
can be rescinded on the ground of fraud, un-
less it appears that injury has resulted
therefrom or may result to the party claim-
ing the rescission. Fraud without resulting
injury is not actionable.

Irons v. Reyburn, 11 Ark. 378; Otis v.
Raymond, 3 Conn. 413; Skrine v. Simmons,
11 Ga. 401; Sieveking v. Litzler, 31 Ind. 13;
Wharf v. Roberts, 88 Ill. 426; Hale v. Phil-
brick, 47 Iowa, 217; Brown v. Blunt, 72 Me.
415; Fuller v. Hodgdon, 25 Me. 243; Mor-
gan v. Bliss, 2 Mass. 111; Johnson v. Sey-
mour, 79 Mich. 156, 44 N. W. 344; Alden v.
Wright, 47 Minn. 225, 49 N. W. 767; Loren-
zen v. Kansas City Invest. Co. 44 Neb. 99,

When the state has issued its patent, the
title so obtained by the patentee cannot be at-
tacked collaterally by third parties for frauds
practised in obtaining it, even in the hands
of a patentee who was a party to the fraud. |
O'Connor v. Frasher, 56 Cal. 499; Doll v.
Meador, 16 Cal. 295; Thomas v. Lawlor, 53
Cal. 405; Gote v. Best, 78 Cal. 235, 12 Am.
St. Rep. 44, 20 Pac. 550, Turner v. Donnelly,
70 Cal. 597, 12 Pac. 469; Moore v. Wilkin- |
son, 13 Cal. 478; Yount v. Howell, 14 Cal.
465; Miller v. Dale, 44 Cal. 562; Kentfield | 62 N. W. 231; Weaver v. Wallace, 9 N. J. L.
v. Hayes, 57 Cal. 409; Plummer v. Brown,
70 Cal. 544, 12 Pac. 464; Chapman v. Quinn,
56 Cal. 278; Irvine v. Tarbat, 105 Cal. 242,
38 Pac. 896; Dreyfus v. Badger, 108 Cal. 58,
41 Pac. 279; Standard Quicksilver Co. v.
Habishaw, 132 Cal. 115, 64 Pac. 113; Phil-
lips v. Carter, 135 Cal. 604, 87 Am. St. Rep.
152, 67 Pac. 1031; Saunders v. La Purisima
Co. 125 Cal. 165, 57 Pac. 656; Harrington v.
Goldsmith, 136 Cal. 169, 68 Pac. 594.

The state, if it chooses, can bring an ac-
tion to cancel the patent in the hands of a
patentee who has participated in the fraud;
but even the state cannot successfully attack
its patent in the hands of a bona fide pur-
chaser for value.

251; Dung v. Parker, 52 N. Y. 494; Aron v.
DeCastro, 36 N. Y. S. R. 716, 13 N. Y. Supp.
372; Slaughter v. Gerson, 13 Wall. 379, 20
L. ed. 627; Marshall v. Hubbard, 117 U. S.
415, 417, 29 L. ed. 919, 920, 6 Sup. Ct. Rep.
806.

Solicitor General Hoyt and Mr. Francis
J. Heney argued the cause, and, with Mr.
Arthur B. Pugh, filed a brief for appellee.
For their contentions see their brief as re-
ported in Hyde v. Shine, ante, 90.

Per Curiam:

This case is indistinguishable from the
last, and the judgment of the Circuit Court
is also affirmed.