which he may have in excess of the income from the property. His counsel, in argument, disclaims such intention. The rights of the parties should be determined in view of all the circumstances surrounding them. In 2 Kent's Com. 182, it is said: "The Courts now look with great liberality to the circumstances of each particular case, and to the respective estates of the father and children.' Reversed. Supreme Judicial Court of Massachusetts. [September, 1880.] ROOSEVELT vs. DOHERTY. SALE BY AGENT-UNDISCLOSED PRINCIPAL. When a factor sells goods of his own and also of his consignor on an entire written contract, the con.signor, as an undisclosed principal, cannot sue the purchaser in his own name for the part of the goods belonging to him. An action of contract to recover the price of certain plateglass. The facts were as follows: The plaintiff consigned plate-glass to Messrs. Hills, Turner and Harmon, as his selling agents, who were also dealers in glass themselves. They contracted in writing to sell the defendant a bill of glass for one entire sum, the first four items being of glass belonging to the plaintiff, and for the payment of which this action is brought. At the trial below the presiding Judge ruled that the contract was entire, directed a verdict for the defendant, and reported the case for the determination of this Court. ENDICOTT, J., delivered the opinion of the Court: We can have no doubt that as between the firm and the defendant this was an entire contract; it was to furnish the glass for the building for a specified sum of money. The consideration being entire, there could be no distinct apportionment of the consideration between the different qualities. of glass furnished. The question to be considered here is, whether the plaintiff, as an undisclosed principal, can maintain an action against the defendant to recover the value of the plate-glass belonging to him, included in the entire contract. We are of opinion that he cannot. In the case at bar, it does not appear that any instructions were given by the plaintiff in regard to the price, manner, or terms of sale of his goods, and it is to be presumed that the plaintiff understood that the factors would sell according to the usual course of dealing in Boston, when goods are consigned to a factor for sale. (Dwight vs. Whitney, 15 Pick. 179.) That a factor may sell on credit, and take a note in his own name, was settled in an early case; a factor also may, and often does, sell the goods of different principals in one sale, and has authority to take a note for the whole sum from the purchaser. (Goodenow vs. Tyler, 7 Mass. 36; Chesterfield Manufacturing Co. vs. Dehon, 5 Pick. 7; West Boylston Manufacturing Co. vs. Searle, 15 Id. 225; Hapgood vs. Batcheller, 4 Metc. 573; Hamilton vs. Cunningham, 2 Brock. 350; Corlies vs. Cumming, 6 Cowen, 181; Beawes Lex Merc., 45.) A factor may sell his own goods with those of his principal, and take a note which includes the amount due for both, as in Hapgood vs. Batcheller, 4 Metc. 573; see, also, Vail vs. Durant, 7 Allen, 408. It is clear, therefore, that when a note is taken from a purchaser by a factor for the sale of goods of several consignors, or for the sale of goods of one or more consignors and of the goods of the factor, one consignor cannot sue the purchaser for the value of his goods taken separately. The note is payment for the whole; it is a contract which the factor had a right to make, and upon which alone the purchaser is liable. The character of the contract in the case at bar precludes the plaintiff from suing separately for the value of his glass to the same extent as he would have been precluded, if a note had been given by the defendant in payment for the goods sold to him under the written contract. And although an undisclosed principal may maintain an action in his own name against one who has purchased his goods through a factor, yet the purchaser is entitled to all the equities and defenses he would have had if the action had been brought in the name of the factor, for the principal has permitted his factor to act as the apparent principal in the transaction. (Huntington vs. Knox, 7 Cush. 371; Barry vs. Page, 10 Gray, 398; Locke vs. Lewis, 124 Mass. 1 and 7, and cases cited.) We are therefore of opinion that the presiding Judge correctly ruled that the contract made by the defendant was an entire contract for a gross sum; and that the plaintiff had no right to sever the same and maintain an action in his own name, and subject the defendant to a separate suit for the value of the plate-glass belonging to him and included in the contract of sale. Judgment on the verdict. VOL. VI. DECEMBER 25, 1880. Supreme Court of California. IN BANK. [Filed November 29, 1880.] WILLIAM S. CHAPMAN, RESPONDENT, VS. THOMAS QUINN, APPELLANT. No. 18. LAND OFFICE RULES AND REGULATIONS. The Commissioner of the General Land Office, subject to the supervision of the Secretary of the Interior, may make rules and regulations, not inconsistent with law, for the government of the various officers in the sale and disposal of the public lands, including rules for the making of the required proof and the trial of pre-emption contests; and such rules, if not unreasonable, will not be interfered with by the Courts. RULE FORBIDDING FILING OF NEW DECLARATORY STATEMENT AFTER CONTEST INAUGURATED. A rule of the Land Office, forbidding the receiving or filing of a new declaratory statement under the pre-emption laws for a tract of land, after the inauguration of a contest between other parties for the same land, is not unreasonable. No RIGHT OF PRE-EMPTION WHERE LAND IN CONTEST BETWEEN THIRD PARTIES. A person who enters upon public land after the inauguration of a contest between other claimants to the same land, and at a time when, by the rules and regulations of the land office then in force, he has no right to file a declaratory statement and, consequently, no right to make proof or payment, and who, therefore, though he has offered so to do, has in fact never filed a declaratory statement, or made proof of settlement, or paid any money, or received any certificate or other recognition from the officers of the land office, is not in a position to question the proof upon which the government officers may have awarded the land to one of the contestants, or to ask that the patentee should be adjudicated to hold as his trustee and as such decreed to convey to him. VOIDABLE PATENTS NOT VOIDABLE AT INSTANCE OF STRANGERS. If a patent to public lands is procured by the introduction of false and fraudulent evidence before the officers of the Land Department, it is voidable at the suit of the Government, or any person in privity with the paramount source of title, but not at the instance of a stranger to that title. Appeal from the District Court of the Nineteenth Judicial District, City and County of San Francisco. James B. Townsend, for appellant. Ross, J., delivered the opinion of the Court: Stripped of the mass of irrelevant and redundant matter found in the record the case presented is this: One Hollingsworth, it is claimed, settled on the land in controversy in 1853 as public land. He died intestate the following year, and left surviving him a wife and four children. The widow died intestate in 1857. The tract in dispute is composed of lots 4, 5 and 6, of section 36, in township 2 south, range 6 west of the Mount Diablo base and meridian. This township was surveyed and a plat of the survey was made and approved by the United States Surveyor-General for the State of California on the sixteenth of October, 1863. A certified copy of the plat was on the same day filed in the United States Land Office at San Francisco, but was soon afterwards withdrawn. On the nineteenth of March, 1868, an amended plat of said township was made under the authority of said United States Surveyor-General and approved by him, and a copy thereof was filed in the Land Office, on both of which plats the land in dispute appeared as surveyed public land of the United States. November 26, 1867, the plaintiff, Chapman, was by the Probate Court of the City and County of San Francisco appointed administrator of the estate of the deceased, Hollingsworth, and on the eighth of April thereafter letters of administration in the matter of the estate were issued to him. On the day last named Chapman, as such administrator, filed, on behalf of the heirs of Hollingsworth, in the proper United States Land Office, a declaratory statement claiming the said premises under the pre-emption laws of the United States, and alleging that Hollingsworth settled upon the land in 1853, improved it, and continued to reside thereon until his death. A contest for the land thereupon arose in the Land Office between the heirs of Hollingsworth, the State of California, and one Bepler, both of the latter being also claimantsBepler as a pre-emptor. In this contest testimony was begun to be taken by the Register and Receiver in relation to the right of the heirs of Hollingsworth to enter by preemption the land in question on the eighteenth of August, 1868, and a large amount of testimony was taken therein. The case was finally closed before the Register and Receiver on the twenty-eighth of July, 1869, and resulted in a decision by the Register and Receiver against the right of the heirs of Hollingsworth to enter the land, and also rejecting the application of Bepler, but awarding the land to the State of California. This decision of the Register and Receiver was, on appeal to the Commissioner of the General Land Office, reversed by that officer in so far as it rejected the claim of the heirs of Hollingsworth, and awarded the land to the State of California, and affirmed in so far as it rejected the claim of Bepler. An appeal being taken to the Secretary of the Interior, the decision of the Commissioner in the matter was affirmed. From which it resulted that the heirs of Hollingsworth were allowed to enter the land, and in due time a patent was issued conveying to them the legal title. At one stage in these proceedings, to wit, on the fifth day of February, 1869, the defendant having theretofore declared his intention to become a citizen of the United States, and possessing at the time the qualifications necessary to enable him to pre-empt land from the Government, entered upon the lots in question, which were at the time unoccupied, with the intention of pre-empting the same, and erected a dwelling house and other improvements thereon, and has continued to reside there ever since. Within three months next after his settlement, the defendant for the purpose of acquiring the Government title to the property, under the pre-emption laws, offered to file with the Register and Receiver of the Land Office his declaratory statement, in due form, and at the same time tendered to the Register and Receiver the proper fee. Those officers refused to accept or file the statement or to receive the fee, because of a rule then in force in the Land Department forbidding the filing of a declaratory statement based upon an alleged right having its origin subsequent to the commencement of a contest between other parties for the same land. From this ruling of the Register and Receiver the defendant appealed to the Commissioner of the General Land Office, where the decision of the Register and Receiver was affirmed; and from the Commissioner's decision the defendant appealed to the Secretary of the Interior, who affirmed the decision of the Commissioner in the matter. Thus it will be seen that after a contest between the State of California, Bepler and the heirs of Hollingsworth, originating before the Register and Receiver prior to the defendant's settlement, and carried to the head of the Land Department of the Government, the land in controversy was finally awarded and conveyed by patent to the heirs of Hollingsworth, while, for the reason already mentioned, the application of the defendant to file his declaratory statement was rejected, and he, consequently, not allowed to become a party to the contest, or to offer any proof before the Register and Receiver. After the issuance of the patent to the heirs of Hollingsworth, the plaintiff acquired from them an |