against the rule was, that it was not competent to the defendant to make any objection to any proceeding in the cause till he had appeared in court by putting in good bail; but the court, notwithstanding that objection, made the rule absolute, thereby clearly describing that this was to be considered as an objection to process which may be taken by a defendant before he has appeared or put in bail." And then, after reciting and reaffirming the ruling of the court in the case of Norton v. Danvers, 7 Term Rep. 375, he refers to the case of Chapman v. Snow, 1 Bos. & P. 132, then recently decided in the court of common pleas, in which the defendant had been arrested on the fifth day of August, and had put in and perfected bail above, and a plea had been demanded, and on the 18th of November a rule was obtained to show cause why an exoneretur should not be entered on the bail piece, and & common appearance allowed on the ground of an omission in the affidavit to hold to bail in not denying an offer to pay in notes of the bank. On showing cause it was alleged that the defendant had waived any irregularity in the affidavit, first, by putting in bail above; and secondly, by delaying to apply to the court till the 18th of November, twelve days after the commencement of the term. It was answered on the part of 126 the defendant that it was impossible for him to make this application till he was regularly in court, which he was not until he had put in and perfected bail. Mr. Justice Heath and Mr. Justice Rooke, who were the only judges in court when cause was showed against the rule, held that the defendant had waived the irregularity, and discharged the rule. On the next day Lord Chief Justice Eyre said: "My brothers have mentioned to me a rule for entering an exoneretur on the bail piece, and allowing a common appearance which was yesterday discharged, and I think properly discharged. The defendant is not now in custody; he has put in bail, and is therefore too late to make this application. If he were to be allowed to move now I do not see why he might not be set at liberty to move after proceedings commenced against the bail. Perhaps the plaintiff has proceeded against them, and is very near judgment; for any thing I know he may have got judgment. Where, then, is the court to stop? Here the process is bad; the party does come in the first instance, but does a voluntary act by perfecting special bail; the cause goes on, with a total disregard to what is passed, the bail to the sheriff we discharged, and the whole

of that proceeding is gone. Shall the defendant now be allowed to apply to us to discharge the special bail, and introduce common bail in their place? I think he should not be heard." Lord Kenyon, C. J., then proceeds as follows: "In the case of Jones v. Price, 1 East, 81, Michaelmas term, 41 Geo. 3, in this court, the defendant had voluntarily put in special bail at the return of the writ, justified the bail, although not excepted to, and drawn up the rule for the allowance, and served on the plaintiff, and within a week after he obtained a rule to show cause why an exoneretur should not be entered on the bail piece on an objection to the affidavit to hold to bail, that it did not negative a tender of the debt in bank notes. It was answered on the part of the plaintiff that the defendant had waived any informality in the process by the above steps which he had taken. To which it was replied for the defendant that this was an application on the part of the bail, who were obliged to justify before they could be 127 heard, and they had taken the objection in a reasonable time afterward. But the court said that this was a clear waiver of the objection; that application should have been in the first instance before the bail had justified; instead of which the defendant had lain by, and suffered the plaintiff to incur additional expense upon the supposition that all the proceedings were right, and then came to complain. But he had adopted the process, and should not then take advantage of any defect in it. These several authorities show that in this court, as well as in the court of common pleas, the affidavit to hold to bail is to be considered as part of the process to bring the defendant into court; that an irregularity in it must be taken advantage of in the first instance, and may be done before bail put in or appearance entered; that such irregularity may be waived by a defendant; and is considered as having been waived when a defendant has voluntarily done an act submitting to such process, instead of taking steps to avail himself of such irregularity, which ought always to be done in the first instance. Here the defendant put in bail on the 27th of January, four days after the commencement of the term, during which time he ought to have taken the objection to the regularity of the affidavit under which he has been holden to bail. We are therefore of opinion that he has waived this objection. The consequence is that this rule must be discharged."

This well-considered case of D'Argent v. Vivant, 1 East,

330, settled, and ought to have settled, the principle of law and practice in such cases in the courts of England, that an affidavit prescribed by act to hold a defendant to bail in a civil action is a part of the process to bring him into court, and any objection to it on the ground of defect, deficiency, or irregularity in it may be, and must be, taken advantage of by the defendant in the first instance, and before he has given bail or entered appearance; and, if he fails to do so, he must be considered to have waived his objection to it, and neither he nor his bail can afterward avail himself of the objection. And at a much later day in England the same principle has been 128 ruled in the court of king's bench, that bail sued on the bail bond cannot traverse the arrest. And Park, J., said the question whether or not this security was valid when given is not touched by the matter subsequent, although that might have been a ground for moving to set the bond aside. The allegation of an arrest was not traversable by the bail: Taylor v. Clow, 1 Barn. & Adol. 223; 20 Eng. Com. L. 378.

And the cases to which we have been referred in the New York reports from the year 1819 down to the year 1870 show that the same rule of practice has been recognized and established to its fullest extent in that state: Bronson v. Earl, 17 Johns. 63; Gregory v. Levy, 12 Barb. 610; 7 How. Pr. 37; Kelly v. McCormick, 28 N. Y. 318; Bensel v. Lynch, 44 N. Y. 162. And it has long been the rule of practice in the courts of this state in such cases; but it has been modified or abolished in several of the other states by statutory or constitutional provisions, or a different rule of practice which has been established in them.

BAIL IN CIVIL ACTIONS-AFFIDAVIT. - A recognizance entered into upon behalf of a poor debtor cannot be avoided by showing that the affidavit upon which his arrest was ordered was willfully false when made, if it appears that the affidavit was proper in form and substance, and that the magistrate had jurisdiction to act upon it, and that he judicially found the facts to be true, and signed a certificate authorizing the arrest: Everett v. Henderson, 146 Mass. 89; 4 Am. St. Rep. 284.

EJECTMENT EQUITABLE DEFENSE.-A plea on equitable grounds may be interposed in an action of ejectment, provided the matter set up au thorizes the defendant to enjoin the judgment, should one be recovered against him. The facts alleged in such plea must not, however, make such a defense as is available in the common-law action, or the court is justified in refusing to allow the plea to be filed, or in striking it out if filed.

PATENTS-VALIDITY-PRESUMPTION.-A patent in due form of law, suffi cient on its face to convey the title to the land therein described, and purporting to have been issued by the proper officers of the government, is prima facie valid in an action at law. PATENTS-VALIDITY-ATTACK UPON.-Patents to land purporting to have been issued under authority of the general government, but shown to have been issued without authority of law, as when the land undertaken to be conveyed has never been subject to the control and disposition of the government, or, if so, was withdrawn from sale when the patent issued, or in fact never belonged to the government, are void, and their invalidity may be shown as a defense in an action at law for the possession of the land. PATENTS-VALIDITY-COLLATERAL ATTACK.-The action of the general land. office in issuing a patent for any of the public land subject to sale is conclusive at law of the legal title, until set aside by proper direct proceedings, and cannot be collaterally attacked. Such patent is also conclusive in equity until set aside in a proper proceeding on the ground that the land officers have misconstrued the law, or that their judg. ment has been so affected by misrepresentation or fraud as to deprive a party of his just rights. PATENTS-VALIDITY-EJECTMENT.-A patent to land not under the control of, nor subject to disposition by, the general-land office is void. Its in validity may be shown in an action of ejectment to recover the land. In such case a plea setting up equitable grounds of defense cannot be filed.

PATENT AS EVIDENCE.-In an action of ejectment based upon a government patent to land regular upon its face, the patent is at least prima facie evidence of a good conveyance, and, in the absence of any thing to impeach it, should be admitted in evidence. PATENTS-MERE OCCUPANT OF LAND CANNOT QUESTION.-A mere occupier of public land without any paper title, or any right of entry, or any authority of law, is a trespasser, and has no right to question the legality of a patent to the land issued by the general land-office. PATENTS-ATTACK UPON VALIDITY OF.-A patent to public land issued by the general land-office, and not void upon its face, cannot be questioned, either directly or collaterally, by persons who do not show themselves to be in privity with a common or paramount source of title. DEEDS-RECORD AS EVIDENCE OF EXISTENCE OF.-An original record of a deed is not admissible in evidence to show the existence and execution of the original deed when it is not shown that such original is not within the custody or control of the party offering such record copy. L. Finley and S. Y. Finley, for the appellant.

Sparkman & Sparkman, for the appellee.

133 MABRY J. Appellee brought ejectment against appellant to recover possession of lot eight (8) of section nineteen, township twenty-nine south, of range nineteen east, and lot seven (7) of section twenty-four in township twenty-nine south, of range eighteen east, containing in all forty and nineteen one hundredths acres, and obtained judgment.

The defendant below filed the plea of not guilty, and a plea on equitable grounds. A demurrer was sustained to the latter plea, and an amended plea on same ground was offered to be filed, but was refused by the court for the reason assigned, that it presented no equitable defense. A consideration of the merits of the amended plea will suffice to dispose of the errors assigned in the rulings of the court in reference to the equitable pleas.

The amended plea offered to be filed alleges in substance that the land sued for was situated within the Fort Brooke Military Reservation of the United States, at Tampa, Florida, and that the plaintiff claimed title to the same by virtue of a patent predicated upon a pretended location and entry on the land made in the United States land-office at Gainesville, Florida, by Louis J. Brush, plaintiff's grantor, with Valentine scrip; that at the time of the said location and entry of said land, and at the time of the issuance of the patent to Brush, the defendant was in actual occupancy and possession of said land, and was residing upon it with his family as a home; that defendant had settled upon and was in the