of the Supreme Court of the District of Columbia, who sat with the Court iu the hearing and determination of the appeal in place of Mr. Chief Justice Shepard, delivered the opinion of the Court:

Under the assignments of error, but two general and controlling questions are presented for our determination; viz:

1st. Did the court below err in admitting in evidence the patent to Eva Waters issued by the appellee during the pend-ency of the caus^i| below, and in refusing to permit appellant to read his testimony in evidence ?

2d. Was the appellee acting within his lawful jurisdiction in refusing to deliver the patent to appellant ?

1. It is well settled that the improper admission of evidence in trials by a court, without a jury, does not, of itself, constitute reversible error, as the improperly admitted evidence will be rejected by the appellate court, and the cause decided as if it were not in the record. Field v. United States, 9 Pet. 182, 9 L. ed. 94; Arthurs v. Hart, 17 How. 6, 15 L. ed. 30. So that, while we are clearly of opinion that the action of the appellee in issuing said patent was incompetent as a defense to this action, in view of the settled rule that impossibility of performance cannot be pleaded in defense to mandamus where such performance was rendered impossible by defendant’s own act (Spelling, Inj. & Extr. Rem. 2d. ed. see. 1377; High, Extr. Legal Rem. 3d ed. sec. 14), the judgment below should not be reversed for that error, nor for the refusal of the court below to permit appellant to read his testimony in evidence, if the record itself sustains the judgment below upon the ground that the appellee acted within his lawful jurisdiction in refusing to deliver a patent to appellant, as. prayed for in the petition for mandamus herein.

2. Was the appellee acting within his lawful jurisdiction in refusing to deliver the patent to appellant ? If so, the petition for mandamus was properly dismissed. In Garfield v. United States, 211 U. S. 249 at p. 262, 53 L. ed. 168, 174, 29 Sup. Ct. Rep. 62, the United States Supreme Court said: “We *437appreciate fully the purpose of Congress in numerous acts of legislation to confer authority upon the Secretary of the Interior to administer upon the Indian lands, and previous decisions of this court have shown its refusal to sanction a judgment interfering with the Secretary where he acts within the powers conferred by law.” It is also well-settled, of coursej that, after the right to the patent has become complete, the execution and delivery of the same are but mere ministerial acts of the officers charged with that duty. Garfield v. United States, supra; Ballinger v. United States, 216 U. S. 240, 54 L. ed. 464, 30 Sup. Ct. Rep. 338. Both of these cited cases involved the same act of Congress here concerned, namely, the act of July 1, 1902 (32 Stat. at L. 716 et seq. chap. 1375), and the United States Supreme Court held that the issuance and delivery of an allotment certificate by the Commission to the Five Civilized Tribes was the act which made the right to a patent for any designated allotment complete. Before the issuance and delivery of such allotment certificate, there is still jurisdiction to refuse the patent. After its issuance and delivery, the delivery of the patent becomes a mere ministerial act.

It being admitted upon the pleadings in this case that no allotment certificate has ever been issued to appellant, and, further, that a motion for review of the decision of May 10, 1909, was filed by Eva Waters within the time allowed by the rules of practice obtaining in the Department of the Interior in Indian affairs, and that, after a further hearing, the order of May 10, 1909, was vacated and an order entered directing that the contest case pending before the Commissioner to the Eive Civilized Tribes should be proceeded with, considered, and disposed of on its merits, it follows that the appellee was acting within his lawful jurisdiction in refusing to deliver said patent to appellee, and, so acting within his lawful jurisdiction, the admission in evidence of the patent to Eva Waters did not constitute reversible error, nor did the refusal of the court to permit appellant to read his testimony in evidence.

.We are unable to agree with the contention of the appellant *438that the rules of practice obtaining in the Department in reference to rehearings and reviews were inapplicable to this case, nor with appellant’s further contention that the filing of appellee’s “Supplemental Answer” operated as an abandonment upon his part of every contention except the one sought to be put in issue by it. No authority has been cited by appellant in support' of the former contention, and the authority cited as supporting the latter contention, namely, Thompson v. United States, 103 U. S. 481, 26 L. ed. 522, merely holds that a fact arising since the filing of a return cannot be given in evidence without a plea puis darrein continuance.

In our opinion there was no error in dismissing the petition, and the judgment below is affirmed with costs. Affirmed.

Upon application of the appellant, a writ of error to the Supreme Court of the United States was issued November 2, 1910.