Maddux

Contest for the right to purchase swampland which is suitable for cultivation. The land was segregated by the authority of the United States in 1855, but has not been sectionized. The court found in favor of defendant, and that plaintiff was not an actual settler.

The appeal is from the judgment, and from an order refusing a new trial. Objection was made to certain rulings admitting evidence, and that the evidence was insufficient to sustain the findings.

The defendant made two applications to purchase. One was based upon an alleged survey by one Newman, who assumed to act as deputy of the county surveyor of Tulare County. His appointment as such deputy was by a certificate signed by one A. T. Fowler, as a private individual, and not in his official capacity. It did not purport to appoint Newman as deputy surveyor of Tulare County, but that I, A. T. Fowler, “ by these presents do make, constitute, and appoint H. Newman my true and lawful deputy to survey lot 7, etc.”

The certificate of appointment, with the official oath of Newman, was not filed until after the survey. Evidently, Newman was not a deputy surveyor.

Conceding that a deputy might be de facto such, though not de…