became a part of the grant, the same as if the descriptive features represented by them had been written out in full in the patents. In short the plat, with all its marks and figures and the field-notes, became a part of the patent for all purposes of identifying the land granted. But it is here insisted that the figures '40.00,' representing the length of the west line of the southwest quarter, and the figures 45.50' representing the length of the west line of the northwest quarter, are no part of the plat. These figures as they appear on the plat are in red ink, showing that they do not represent distances actually measured in the field. It is, therefore, insisted that they were placed on the plat without authority of law, and should be rejected and disregarded. The Acts of Congress of May 10, 1800, and February 11, 1805, are carried into Revised Statutes, U. S., 1878 (second edition), to which reference is made. Section 2396 provides, among other things: 1st. 'All the corners marked in the surveys returned by the surveyor-general shall be established as the proper corners of sections or subdivisions of sections they were intended to designate, and the corners of half and quarter sections not marked on the survey shall be placed, as nearly as possible equidistant from two corners which stand on the same line.' The claim is that the words 'marked in the surveys returned,' mean corners actually established on the ground. We think the words have a much broader meaning. This will be more apparent by referring to some of the duties of the surveyor-general in respect of sections on the west township line. Section 2395 provides that where townships which are subdivided exceed or do not extend six miles, the excess or deficiency shall be specially noted, and added to or deducted from the western and northern ranges of sections or half sections, and that these irregular sections and half sections shall be sold as containing only the quantity expressed in the returns and plats, and all others as containing the legal quantity. It is, therefore, the duty of the surveyor, not only to note this excess or deficiency, but to calculate the contents of these irregular subdivisions, and to note the quantity on the surveys returned. Hence, it is clear that the 'surveys

returned' properly show more than mere lines actually run and corners planted. If it is his duty to calculate the arcas, and state the result on the plat, it is certainly competent for him to note the basis upon which he made the calculation, and especially so since the irregular subdivisions of the sections lying in the northern and western ranges of sections must be sold as containing the quantity expressed on the plat. The statutes are general in their terms, and many things are left to the discretion of the surveyor-general and the land department. We entertain no doubt but the surveyor-general had full power and authority by himself or deputies to designate these distances on the plat. But for the purposes of this case, and no other, let it be assumed that these figures should have been omitted from the plat, still it does not follow that the courts can undo what the surveyor-general and his deputies have done. He by himself or his subordinates fixed this quarter section corner on the plat, by stating its distance from section corners, and the government accepted the plat and sold the land pursuant thereto. By these acts the government, through its political departments, adopted the plat and all the marks and figures thereon. If this plat was incorrect, it was for the land department to reject it. That department had the power to accept or reject it. It did accept the plat, and that act is not reviewable by the courts. The government having accepted the plat, and sold the land pursuant to it, the courts have nothing to do but ascertain its meaning, and give effect to that meaning. It follows from what has been said, that we are to take this plat, with the figures thereon, and read it as part of the patents. Guided by the plat, there is no difficulty whatever in finding the principle upon which this dividing line should be run. In running the north section line west through to the township line it fell 5.50 chains north of the mile monument set in the township line. The west section line is therefore 85.50 chains in length. The plat also makes the west line of the southwest quarter 40 chains and the west line of the northwest quarter 45.50 chains. If, as in this case, an accurate measurement shows that the section line exceeds 85.50 chains, then the

excess must be divided between the 'quarter section lines in the proportion of the length of those lines as stated on the plat. The point thus ascertained is the true quarter section corner, and a straight line from that point to the east quarter section corner is the true dividing line.

'On the other hand, there are cases which insist that the monuments set in the field, when actually found, govern and control all other descriptions, and it is said in Goltermann v. Schiermeyer, supra, the monuments set by the deputy United States Surveyor for the west section corners must control as to the proper location of those corners.

In the late Nebraska case, Woods v. West, 58 N.W. Rep. 938, which we have taken as the text, it is held, as we have seen, the field-notes and plat are competent evidence in ascertaining where monuments are located, in case a government corner is destroyed or the point where it was originally placed . cannot be found, or the location of the original corner is in dispute; but when it is shown by uncontradicted evidence that a section corner was located by the government surveyors at a certain point, such location must control, even though it is at a place different from that given in the plat and field-notes. This decision of the Supreme Court of Nebraska is reached without reference to the Revised Statutes of the United States, and simply on the ground that the monuments erected upon the land are facts; the field-notes and plat returned by the surveyor-general, indicating course, distance and quantity, are but description which serve to assist in ascertaining those facts. This is undoubtedly true as a general principle of law, but it is altered by the explicit direction in § 2396, Rev. St., February 11, 1805, that, the boundary lines actually run and marked in the survey returned by the surveyor-general shall be established as the proper boundary lines of the sections or subdivisions for which they were intended, and the length of such lines as returned shall be held and considered as the truc length thereof-apparently regardless of monuments placed erroneously in the field."

The Chief Justice, in giving his opinion in the case of Woods v. West, supra, says: “There is no room for doubt,

that if a certain known corner is the point at which the govcrnment surveyors located the corner of Sections 8, 9, 16 and 17, the one in dispute, then so much of the government fieldnotes as assume to state the length of the lines of the original survey is inaccurate and unreliable."

Such a statement is surely made without reference to the Revised Statutes as to the force to be given to the statement of the surveyor-general as to the length of the boundary lines.

McClintock v. Rogers, 11 Ill. 279 (1849), holds that in construing a patent from the United States which describes land granted by the number of the section, township and range, courts will look to the plat and field-notes, made and returned to the surveyor-general by the government surveyors, in order to locate the land. The lines actually run upon the grounds by the original surveyor become the true external boundaries of all lands sold by the government, if they can be ascertained by reference to the monuments erected upon the land by the surveyor.

In the case of Jones v. Kimble, 19 Wis. 452, the plat and field-notes are taken as giving the proper boundaries; but court expressly states that that was because the monuments located in the field could not be found, and that if they had been found they would have governed all other descriptions.

Martin v. Carlin, 19 Wis. 477, the court refused to go out of a section as established to reach a natural object or monument admitted to be erroneously placed within the section and made a boundary of.

See also Whitney v. Limber Co., 78 Wis. 240.

If the sections of the Revised Statutes quoted are to be followed, it would seem clear that the monuments located by the surveyor on the ground one-quarter of a mile too near to the southeast township corner ought to be ignored, and the length ⚫ of the line, as returned by the surveyor-general, giving to A and B, respectively, the amount of land cach thought he was purchasing, should be considered as the true length thereof. J. HOWARD RHOADS.

The mere fact that a party acts on the advice of an attorney in suing out a search warrant, does not absolutely show absence of malice, and probable cause, especially where, in communicating the facts to the attorney, he so enlarges a mere suspicion as to make it appear that he has some positive information. In such a case the advice of the attorney is no defence.

ADVICE OF COUNSEL AS A DEFENCE TO A SUIT FOR

MALICIOUS PRosecution.

I. The action for malicious prosecution depends upon the two conditions, usually interdependent, of malice and want of probable cause; in other words, the defendant must have instituted the proceeding out of which the suit grew from a bad motive, and have had no reason to believe the plaintiff guilty of the offence charged. These two conditions must, as a general rule, co-exist. If there was really good ground to believe the plaintiff guilty, the motive of the defendant in prosecuting is immaterial; and, on the other hand, if he had no valid reason to believe in his guilt, the very purest motive ought not to relieve him from liability for negligence, if for nothing else. As a matter of fact, malice is much more frequently inferred from the want of probable cause than proven by direct evidence. It follows, then, that anything which tends to disprove malice or to show probable cause is, or ought to be, admissible in evidence, in the one instance to mitigate damages, in the other to exonerate from all liability. 'Reported in 37 N. E. Rep. 593

591