text:
    The People ex rel. Michael Rafferty v. Stephen B. French et al., Com’rs.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    Municipal corporations—Police—Removal.
    Relator was removed for intoxication. The officers who saw him at the time testified that he was intoxicated, and the police surgeon stated that he examined him and that he was under the influence of liquor to the extent of requiring some few hours sleep to work it off. Relator denied that he was intoxicated and said that he drank only a preparation for malaria received from a physician. The physician testified that the preparation, properly taken, would not produce that result, but too much of it would make him a little stupid. Three witnesses testified that they did not consider relator intoxicated. Held, that there was no such preponderance of evidence in favor of relator as to call for a reversal of the commissioners’ decision.
    Writ of certiorari to review the action and decision of the police commissioners, by which the relator was removed from the police force.

      Albert S. Warner, for relator; John J. Delaney and Cornelius F. Collins, for com’rs.
   Daniels, J.

The charge against the relator is the one so commonly made and proved, in these cases, that he was so much under the influence of liquor as to be unfit for police duty. It was made on his appearance, and conduct at the station house, when he returned from his patrol duty. His conduct when he went to the desk in the office was such as to arrest the attention of the sergeant in charge, and that led to a further investigation bf his condition.■ This officer testified that he could not answer the questions intelligently which he asked him, and staggered some in walking up and down the floor. And upon his cross-examination he answered further that he had no doubt but that the relator was then under the influence of liquor, and that he was unfit for duty.

The police surgeon also testified that he had examined the relator and “ from the odor of liquor on his breath and skin, the character of his pulse and some uncertainty in his actions,” he judged, “ that he was under the influence of liquor to the extent of requiring some few hours sleep to work it off; he was in that stage of the influence of liquor.” Sergeant Herlihy testified that, he also examined him and concluded him to be under the influence of liquor, and that this conc’usion was found from “his personal appearance, his thick speech, his manner of walking and the smell I got from his breath.” And he added that he considered him so much under the influence of liquor as to be unfit for duty. Roundsman McGree gave substantially the same evidence, and so did Roundsman Londrigan, who added, “he was drunk.”

The relator positively denied his intoxication and stated that he had drank only a preparation received from a physician for malaria. And the physician testified that he had supplied that preparation, but that properly taken it would not produce a dazed condition, but too much of it would make him a little stupid. Patrolmen Kelz, Sullivan and Kelcher observed the relator near tlie time mentioned in the charge, but did not consider him intoxicated, or under the influence of liquor, while McDermot and Farley did not notice him particularly, or devote much attention to him. It is quite clear that the evidence producéd to support the charge consisted of much more than suspicions and opinions. It was direct proof of the fact, fortified by circumstances which ordinarily indicate the existence of intoxication. That of the surgeon, and of Herlihy and McGree, was specially direct as wc 11 as cogent. And it was not overcome by the relator’s denial, and the evidence given by the other witnesses in his behalf. The effect was to create a question of fact for the decision of the commissioners, against which there certainly was no preponderance in favor of the relator. And under the rule sanctioned, not only by the statute, but also by the authorities, their decision is required to be sustained. People v. French, 110 N. Y., 494; 18 N. Y. State Rep., 231; People v. French, 119 N. Y., 493; 30 N. Y. State Rep., 67.

The determination of the commissioners should be affirmed, and the writ dismissed.

Van Brunt, P. J., and O’Brien, J., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    George E. Bacon, Resp’t, v. The New Home Sewing Machine Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    1. Master and servant—Discharge—Tender of service.
    Where a servant employed by the year is discharged before the termination of the term on the ground that the master had nothing further for him to do. with a statement that if his services were required work would he gladly given him, and he is paid to the first of the following month, it is not necessary for him to re-tender his services in the following month in order to hold the master liable for breach of the contract.
    2. Same—Term of employment.

      Semble, that the law of Massachusetts in relation to the continuation of a contract of employment by the year does not differ from that of this state.
    Appeal from judgment entered upon verdict and from order denying motion for new trial.

      R. S. Crane, for app’lt; H. S. Bennett, for resp’t
   Van Brunt, P. J.

This action was brought to recover damages for an alleged unlawful discharge of the plaintiff by the defendant before the termination of the contract of employment. The evidence showed that the plaintiff had been employed by the defendant for a year" from April 29, 1884, at a yearly compensation, and that upon the termination of this year of employment he continued in the employ of the defendant without any new or express agreement being entered into.

In December. 1885, he was discharged by the defendant upon the ground that the defendant had nothing further for him to do, and the statement was made at the time of the discharge by one ■of the officers of. the company, sworn to by the plaintiff and not •contradicted by the defendant, that if it found it required his ■services it would gladly give him work. At the time of the discharge plaintiff claimed that his term of employment did not expire until April 29th following.

Testimony was offered showing that defendant’s place of business was in Massachusetts and that the law of Massachusetts was that where there was no express written or oral stipulation which fixed the time for the employment, that that element of the contract depended upon the understanding and intent of the parties, which could be ascertained only by inference from their written and oral negotiations, the usages of the business, the situation of the parties, the nature of the employment, and áll the circumstances of the case, and that this inference was to be drawn only by the j ury; in other words, that the jury were to determine What was the contract existing between the parties at the time of the employment. The case having been submitted to the jury, a -verdict was rendered in favor of the plaintiff and from the judgment thereupon entered, and from an order denying a motion for •a new trial, this appeal is taken.

It is claimed upon the part of the defendant that the plaintiff having been paid up to the 1st of January, 1886, for a time longer than he was rendering service, it was his duty immediately thereafter to tender his services or do an equivalent act

Under the circumstances of this case we do not think that this was at all necessary. The plaintiff was absolutely discharged by the defendant upon the ground that it had nothing for him to do. It was also stated to him that if it found anything for him to do it would gladly give it to him to do. The defendant had taken its position that it had a right to discharge the plaintiff, one of its officers stating that the plaintiff ought to think himself well off that he was paid for the time he actually spent in the employ of the defendant The plaintiff protested and insisted that his employment extended to April following. This was denied and he was told to go. Under these circumstances there does not seem to have been any necessity for his making a re-tender of his services. It would have been going through an idle ceremony ; and it was rather his duty to seek other employment in order that he might lessen the damages which the defendant might be called upon to pay for the breach of the contract if it was found to be a yearly contract

It is also urged that the contract in question was a Massachusetts contract, and is to be governed by the Massachusetts law, and that the laws of Massachusetts and of this state are different in reference to the continuation of a contract where its original term had expired.

We have examined with care the case to which attention has been called, Tatterson v. Mfg. Co., 106 Mass., 56, and we can find no foundation for the position which the defendant takes in reference thereto.

As we understand, that decision is founded upon the fact that there was no employment for a year at any time,, neither for the first year nor the second, but upon the contrary the jury might find from the circumstances of the case that the first employment was a quarterly employment with a right to discharge at the end of any quarter, and that was all that was determined in regard to the second year’s employment

In the case at bar the evidence is explicit that the first employment was for a year, and that this employment was continued without any new or additional contract except such as was implied from the continuation of such yearly employment

The cases cited from Massachusetts in no way conflict with the law as it has been established by the courts of this state.

We have examined the exceptions which have been referred to-in the points of the appellant’s counsel and find none which require any serious consideration. We think upon the whole case that the judgment was right and that the judgment and order appealed from should be affirmed, with costs.

Bartlett and Barrett, JJ., concur.


text:
    Arthur Terry, App’lt, v. George E. Horne, Trustee, and Harriet E. Terry, Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    1. Judgment—Dismissal of complaint.
    The court should not, where a complaint is dismissed solely because of failure of proof, give absolute judgment in favor of the defendant.
    3. Contract—Rescission.
    Equitable interference cannot be sought or the ground that a_ contract was procured by duress or that it was illegal and contrary to_ public policy, as these facts would constitute a perfect defense to an action at law on the contract.

      Appeal from judgment dismissing the complaint upon the merits.

      E. Terry, for app’lt; T. C. Campbell, for resp’ts.
   Van Brunt, P. J.

The plaintiff and the defendant, Harriet E. Terry, were married several years prior to 1876 and lived together as husband and wife until said year, when the said Harriet E. Terry commenced an action against the plaintiff for divorce upon the ground of cruel and inhuman treatment, and for alimony for her support. The plaintiff also commenced an action in the same court against said Harriet E. Terry for divorce upon the ground of adultery. For some time prior to the commencement of these actions said plaintiff and defendant had separated, and continued to live apart until the 14th of April, 1877; After the commencement of said actions the defendant, Harriet E. Terry, commenced proceedings in both to obtain alimony for her support during the pendency of the action and for counsel fees to enable her to prosecute and defend the same, which was granted, and the plaintiff not complying with the order was adjudged guilty of contempt and gave a bond for his appearance at a future day to purge himself of his contempt. While these proceedings were pending the plaintiff admitted to the defendant that he had been deceived as to the statement charging her with adultery and proposed that she should discontinue her action and he would discontinue his, and that they should assume their. marital relations. The defendant Terry declined to do so unless the plaintiff would make some provision for her by securing some money through a trustee for her use. It was agreed that the plaintiff should do so, and the agreement set forth in the complaint was drawn up and executed whereby there was secured for the benefit of said Harriet E. Terry the sum of seven dollars per week. One T. 0. Campbell was mentioned as trustee in the agreement, and he having declined to act, the defendant Horne was duly appointed in his place. The plaintiff continued to make the weekly payments so secured by said trust deed up to the time of the commencement of this action, which was brought to set aside said trust deed upon the ground of duress arid illegality of the contract

Upon the trial at the end of the plaintiff’s case a motion being . made to dismiss the complaint upon the ground that facts sufficient to constitute a cause of action had not been set out in the complaint or proved, the motion was granted and the court dismissed the complaint upon the merjts, and from the judgment thereupon entered this appeal is taken.

So far as the court dismissed the complaint upon the merits we think the judgment was erroneous. The complaint was dismissed because of the failure of proof upon the part of the plaintiff, and not because there was any issue of fact which had arisen between the plaintiff and the defendant which had been determined in favor of the defendant. The court should not where a complaint is dismissed because of failure of proof give absolute judgment in favor of .the defendant.

The result in such a case is similar to that which obtained in a nonsuit under the old practice; and under such circumstances the judgment was never considered a bar to a new action in case the plaintiff could fortify his case by additional proof.

It is not necessary to discuss the other propositions which have been presented for consideration, namely, whether after twelve years of acquiescence in a contract, a party can plead duress, or whether a contract of the description mentioned in the complaint entered into for the benefit of a wife is illegal and against public policy, for the reason that there is no ground whatever for equitable interference. If the contract is illegal it is a perfect defence in an action at law. If it had been obtained by duress, such would bo a -perfect defence to an. action at law brought to enforce the contract.

It is well settled that equity cannot be called upon to afford relief to a plaintiff where .he has a complete answer at law in case an action is brought against him upon the contract. Grand Chute v. Winegar, 15 Wall., 373; Allerton v. Belden, 49 N. Y., 373; Town of Venice v. Woodruff, 62 id., 462; Fowler v. Palmer, id., 533; Globe Mutual Co. v. Reals, 79 id., 202; Troy & Boston R. R. v. Boston, Hoosac Tunnel & W. R. R. Co., 86 id., 107.

In all these cases the principle is recognized that equitable interference cannot be sought where the rights of the parties can be equally protected in an action at law. If the plaintiff was sued upon the contract in question, if any of the causes of action set up in his complaint in this action were well founded they would form a complete defense to the action upon the contract

The judgment should be modified by striking therefrom the words “ on the merits ” and as modified affirmed, without costs.

Bartlett and Barrett, JJ., concur.


text:
    Frederick C. Linde et al., Resp’ts, v. Hugh J. Grant, Sheriff, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 13, 1891.)

    W ABEHOUSEMEN—ADVANCES—U SUBY.
    Plaintiffs were warehousemen and also did a banking business. F. & Oo. stored goods with them, and upon its note payable in blank, secured by their receipt for the goods, they made advances of the amount of said note less six per cent and a commission. They then guaranteed the note and procured its discount at a bank. Held, that the mere fact that a warehouseman loans his money temporarily to his principal, to be reimbursed by moneys procured through his own labors does not deprive him of his right to compensation for his services; that the transaction was not necessarily a cover for usury, and that a verdict in favor of plaintiffs would not be disturbed.
    Appeal from judgment entered on verdict and from order denying motion for new trial.

      A. Blumenstiel, for app’lt; J. E. Parsons, for resp’ts.
   Van Brunt, P. J.

This action was brought to replevin certain goods stored with the plaintiffs as warehousemen by the firm of 0. M. Foster & Oo. For these and other goods stored with the plaintiffs, Foster & Co. had received warehouse receipts, upon which with their notes loans had been made aggregating a large amount of money. In January, 1887, in actions against Foster & Co., writs of attachment were issued, and under these the defendant, as sheriff, levied and took into his possession the property described in the complaint, and when the defendant threatened to remove the goods this action was commenced to recover possession. The plaintiffs claimed possession because of the loans hereinbefore mentioned. The defense is that the loans in question were made by the plaintiffs to Foster & Co. under a usurious and corrupt agreement There was some question also as to a lien of the plaintiffs for storage. Upon the trial a special- verdict was rendered, and a general verdict By their special verdict the jury found, first, that the plaintiffs were entitled to possession of the goods by virtue of their lien for storage; second, that they were entitled to possession by reason of advances made on the goods; third, that the plaintiffs had never waived their lien for storage ; and fourth, that the plaintiffs did not make the several loans or advances upon the property under a usurious contract, and by their general verdict the jury found that the plaintiffs were entitled to the possession of the property described in the complaint; and from the judgment thereupon entered, and from an order denying a motion for new trial, this appeal is taken.

The principal question raised upon this appeal is whether or not the transactions between the plaintiffs and Foster & Co. were usurious in their character. It is of course necessary for the defendants to establish this defense; and as intent is essential to constitute the offense of usury, it is incumbent upon the defendant to establish this intent if any excess of interest was taken.

It is undoubtedly true that if the facts proven clearly establish the intent to take more than legal interest for the loan, the usury is made out, even though the intent to take usury may be denied, because the proof of the doing of a thing prohibited by the law with intent to do the same, establishes the commission of the offense. Therefore, if the transactions between the plaintiff and Foster & Co. were made under the form which was adopted by them as a cover for usury, then the crime of usury is established.

In the disposition of this question, although there are various transactions involved, it will be necessary to consider the facts in but one of them as the representative of a class, and determine whether from those facts it necessarily follows that the transactions were usurious, because if any other inference can be drawn than that they were usurious, the jury having found in favor of the plaintiffs against the claim of usury, this court cannot disturb it

It appears that the plaintiffs were warehousemen, and that in connection with their business of warehousemen they did a banking business, advancing money upon warehouse receipts, and that Foster & Co. were customers of theirs, and had stored with them a large amount of property, upon which the plaintiffs had made advances. Upon the deposit of property the plaintiffs were accustomed to issue a warehouse receipt to Foster & Co., who endorsed the same in blank and then gave their note to the plaintiffs, accompanied with the warehouse receipt, whereby at some future day, for value received, they promised to pay “ to or order, in gold coin, or United States notes, or treasury notes, which are legal tender, having deposited with said bank as collateral security for the payment of this note, and also as collateral security for all other present or future demands of any and all kinds of the said bank against the undersigned due or not due.” Then follows a description of the property, with a power of sale.

Upon this security the plaintiffs were accustomed to advance the face of the. note, less six per cent interest and a commission. The payment of these notes the plaintiffs guaranteed, and procured the same to be discounted by certain banks.

It further appears that almost all the notes held by the plaint- ' iffs were renewals of notes which fell due and were not paid by Foster & Co. The renewal notes not having been paid by Foster & Co., the holders of the notes transferred the same to the plaintiffs together with the warehouse receipts accompanying the same.

It was claimed upon the part of the defendant that this was a loan of money by the plaintiffs to Foster & Co. at a usurious rate of interest with the intention of taking more than the statute allowed, and that consequently usury was made out.

Upon the part of the plaintiffs it was claimed that they simply charged this commission for the use of their name in procuring the money from these various banks who discounted the notes upon the faith of their guaranty. The evidence shows beyond question that the identical money which was obtained upon the discount of these notes was not handed over by plaintiffs to Foster & Co. It appears that the moneys were paid to Foster & Co. by the checks of the plaintiffs upon their own bank and before the notes in question had been discounted by the bank to whom they were subsequently transferred by the plaintiffs. And it is upon this feature of the evidence that it is claimed that these transactions were personal contracts of the plaintiffs with Foster & Co., and that the agreement in regard to interest and commission was a personal agreement between them; and that the commission cannot be treated as a compensation to the plaintiffs for the procurement of the money for Foster & Co., because they advanced their own money. Upon the other hand it was claimed by the plaintiffs that they were procuring this money for Foster & Co., and were entitled to charge compensa- , t-ion for the use of their credit.

We think that there is no such conclusive evidence in regard to this transaction having been a cover for usury as would justify the court in taking the question from the jury. From the very nature of the notes themselves, and from the nature of the transactions, it seems to have been the intention of the parties that the notes together with the warehouse receipts should be negotiated by the plaintiffs with banks and the lenders of money.

The form of the notes shows that they were not to be treated as ordinary commercial notes, because they were not made payable to the order of the plaintiffs and endorsed by them for the purpose of giving them circulation, but in blank, apparently to be transferred to some bank, upon which transfer the plaintiffs were to guarantee their payment. Now, although the identical money Srocured by the 'negotiation of these notes was not paid over to 'oster & Co., the facts of the case bring it within the principle laid down in those cases where it has been decided that commission' merchants, agents, warehousemen, and all others advancing money upon goods, have a right to charge a commission for the trouble and expense they may be put to in the transaction.

The case of Matthews v. Coe, 70 N. Y., 239, seems to be a striking illustration of the circumstances under which such advances may be made and the contract not be held usurious, and various cases are there cited which also illustrate the principle. It being in the contemplation of the parties at the time of these transactions that plaintiffs were to reimburse themselves for the money advanced by money which they were to raise upon their own credit, it seems to us that the transaction stands precisely the same as though the plaintiffs had raised the money upon their own credit and transferred the same over to Foster & Co. and charged for the use of their name, which they clearly had a right to do. The mere fact that the commission merchant or agent loans his money temporarily to his principal, he to be reimbursed by moneys procured through his own labors, does not deprive him of his right to compensation for his services. This is precisely the condition which the plaintiffs in this action may have occupied under the proofs toward Foster & Co. They had out of their own funds made temporary advances to Foster & Co. upon these securities, the understanding being, as evidenced by the papers, that the plaintiffs should procure the money from some other source with which to reimburse themselves and use their own credit to enable them to do so. In principle we cannot say that there is any difference between a transaction of this description and- one where the agent procures the money and hands it to his principal, less a charge for his own compensation.

The question is whether the transaction is necessarily usurious; whether it is necessarily a cover for usury, because the jury having found that it was not usurious, it is necessary in order that the defendants should succeed on this appeal that they should establish by conclusive evidence, so that there will be no question for the jury, that the transaction was usurious and therefore void. This, we think, they have failed to do.

It was a question for the jury to determine as to whether this form was gone through with for the purpose of covering a usurious transaction within the principles laid down in- the cases cited. Such transactions may be innocent and consequently they are not necessarily guilty. And whether there was a guilty intent or not is the question upon which the jury must pass, and they having passed in favor of the plaintiff, this court cannot say that the verdict was erroneous.

In fact from all the evidence in the case it seems to us that it was a legitimate business transaction; that Foster & Co. needed the money ; and the plaintiffs by their superior credit got it for them, advancing the money themselves temporarily with the understanding that they were to reimburse themselves by a negotiation of these notes secured by the warehouse receipts. It was undoubtedly the understanding that these notes were to obtain credit through the guaranty of the plaintiffs, and for the use of their name there is no question of their right to charge.

There is also a question raised in respect to the storage. It is urged that the claim for storage formed no ground upon which the plaintiffs could claim possession of the goods in question, and that when demand was made for the possession of the goods, the right to possession was placed distinctly upon the lien for advances, and not upon the question of storage.

However this may be, in view of the form of the verdict, the defendant would not be entitled to a new trial, even if the court made an error in that regard, because they found that plaintiffs had a right to possession of these goods to cover their advances, and even if the court was erroneous in its ruling in reference to the claim for storage, the verdict was correct provided the defendants failed to make out their defense of usury.

It is not necessary, therefore, to determine on this appeal as to whether or not the position of defendants in reference to storage was correct, as in view of the form of the verdict, as already stated, that question becomes entirely immaterial.

Wo think upon the whole case, therefore, that the verdict cannot "be disturbed, and that the judgment and order must be affirmed, with costs.

Barrett and Bartlett, JJ., concur.


author: Andrews, J.

text:
    The Seneca Nation of Indians, App’lt, v. Harrison B. Christy, Resp’t.

      (Court of Appeals,

      Filed April 14, 1891.)

    1. Indians—Title to lands formerly held by.
    The state of New York had the power and right under the constitution to make treaties with the Indian tribes within the state for the purchase of their lands, to which it 1 eld the pre-emption right, and a purchase made of the Seneca tribe August 81, 1836, having been duly made under its authority in pursuance of the compact with Massachusetts of 1786, in the presence and with the approval of commissioners both of Massachusetts and of the United States, was valid, and the purchasers on the execution of the deed, followed by the voluntary surrender and abandonment bv the Indian occupants of the land granted, acquired a lawful and valid title in fee simple absolute, and a treaty between the United States and the Senecas was not necessary to give validity to the transaction.
    3. Same—Indian intercourse act of 1802
    Such transaction was valid and not in contravention of the provisions of the Federal constitution or of the Indian intercourse act of 1802, and vested in the purchasers a good title in fee simple absolute t'o the lands granted, free from any claim of the Seneca Nation.
    3. Same—Limitation.
    The right of plaintiff to sue being given by chap. 150, Laws 1845, the statute of limitations is abar to the action.

      Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for defendant entered on verdict at circuit.

      James C. Strong, for app’lt; Norris Morey, for resp’t.

       Affirming 18 N. Y. State Rep., 881.

   Andrews, J.

This is an action of ejectment brought to recover 100 acres of land in the county of Erie.

The general facts are undisputed. The land in question is a part of a tract of more than 87,000 acres, or 105 square miles of land, situate in Erie and other counties in the western part of the state, which prior to August SI, 1826, and for a period extending as far back at least as the middle of the 17th century, had been in the occupation of the Seneca nation of Indians, claiming dominion by conquest from other aboriginal tribes.

On the day mentioned, August 81, 1826, at a public council of the Seneca Nation held at Buffalo Creek in the county of Erie, a deed was executed by the Indians to Robert Troup, Thomas L. Ogden and Benjamin W. Rogers (known as the Ogden Land Company), of the 87,000 acres of land to which reference has been made, situated in Erie, Cattaraugus, Allegany, Livingston, Genesee and Chautauqua counties in this state. The deed contains a recital that it was executed “ at a treaty held under the authority of the United States at Buffalo Creek in the county of Erie, in the state of New York, between the Sachems, chiefs and warriors of the Seneca Nation of Indians on behalf of said nation, and Robert Troup, Thomas L. Ogden and Benjamin W. Rogers, Esq., of the city of New York, in the presence of Oliver Forward, Esq., commissioner appointed by the United States for holding said treaty, and of Nathaniel Gorham, Esq., superintendent on behalf of the state of Massachusetts." It purports, in consideration of the sum of $48,216 acknowledged in the deed to have been in hand paid to the Sachems, chiefs and warriors of the Seneca Nation by the grantees, to grant to the purchasers all the right, title and interest of the Seneca Nation in and to the lands described, and was executed under the hands and seals of the Sachems, chiefs and warriors (forty-six in number) of the Seneca Nation and of the several grantees on the deed, and is witnessed by Jasper Parish, Indian agent, and three other persons described as interpreters. It was certified and approved by the superintendent appointed on behalf of the state of Massachusetts, and by Oliver Forward, the commissioner of the United States.

It is stated in the certificate of the United States Commissioner that the deed was executed in his presence by the sachems, chiefs and warriors of the Seneca Nation, and was fully understood by them, who declared that it was “done to their uni versal satisfaction." The deed was proved by one of the subscribing witnesses, was afterwards confirmed by the legislature of Massachusetts, and in 1827 was duly recorded in the several counties in this state in which the lands were situated. In 1827 the sum of $48,050 of the consideration of the deed was deposited by the grantees in the Ontario Bank of Canandaigua, in trust for the Seneca Nation, where it remained from that time until 1855, when it was paid over by the bank into the United States treasury, where it still remains. Meanwhile, from 1827 to the time of the commencement of this suit, a period of nearly sixty years, the interest on this fund has been annually paid to the Seneca Nation, first by the bank, and afterwards by the United States. It does not appear how or when the remainder of the consideration mentioned in the deed was paid, or whether it was paid at all, except as may be inferred from the acknowledgement of payment of the consideration, in full, contained in the deed. The conveyance or treaty of August 31, 1826, was never ratified by the senate of the United States or proclaimed by the president. The extent of the participation of the United States in the transaction may be briefly stated. By the ordinance of August, 1786, the department of Indian affairs was placed under the control of the war department. May 23, 1826, the then secretary of war of the United States in a letter of that date, directed to “ Oliver Forward, Commissioner,” after stating that application had been made to the department “ by the proprietors of the pre-emption right to certain lands held by Indians in the state of New York for the sanction of the government to treat with them for the extinguishment of their right to the occupancy of the same, and it being deemed proper that the. United States as the general protector of the Indian tribes should be present by their commissioner at the treaty which the proprietors propose to hold during the ensuing summer with said Indians for this object,” informed Mr. Forward that he had been selected by the president for the performance of this duty. The letter proceeded: “ You are accordingly requested to correspond with the proprietors and to attend the treaty at such time as may be fixed on by them for holding it, to see that all the proceedings are just and fair. Whatever may be done must be done with the free consent of the Indians. You will, however, exercise a sound discretion in the business, and if satisfied with the fairness of the propositions of the proprietors will afford such co-operation in effecting them as you may judge proper.”

On the 24th of February, 1827, the president of the United States transmitted to the United States senate a copy of the treaty or conveyance of August 31, 1826, together with other papers, including a report from Thomas L. McKenny, superintendent of Indian affairs, relating to said treaty made to the secretary of war under date of February 16, 1827. In this report the superintendent stated that “ in pursuance of law and usage an agent in the person of Oliver Forward was appointed to represent the United States under instructions from the department of war, and to sanction in behalf of the United States the proceedings under said treaty. This trust has been executed.” The report then referred to the provisions of § 12 of the Indian intercourse law of 1802, and after quoting the language of the proviso in that section, said: “In conclusion, those treaties hitherto made under such circumstances were submitted to the senate, except the treaty with the Senecas of the 3d of September, 1823, executed in presence of Charles Carroll, commissioner on the part of the United States. It was deemed a useless ceremony; the president approving it only.” The treaty of September 3, 1823, referred to in the report, was a conveyance substantially like the one in question. Indian Treaties, 1837, pg. 305.

The senate on receiving the communication from the president referred the “treaty with the Seneca Indians " to the committee on Indian affairs, and afterwards on its being reported back to the senate, that body refused to ratify it, but the senate passed an explanatory resolution as follows:

Hesolved, Thar by the refusal of the senate to ratify the treaty with the Seneca Indians, it is not intended to express any disapprobation of the terms of the contract entered into by the individuals who are parties to that contract, but merely to disclaim any power over the subject matter."

No further action has been taken by the United States, except that in 1855, in pursuance of the 3rd section of the act of Congress, approved June 27, 1846, which authorized the president to receive from the Ontario Bank any public stocks or moneys which said bank might hold in trust for the Seneca Indians, the fund of $43,050 above mentioned, was transferred to the United States treasury, and thereafter, as has been stated, interest thereon has been paid annually to the Seneca Indians by ¡the United States.

It is among the agreed facts of the case that soon after the execution of the deed of August 31, 1826, Troup, Ogden and Rogers entered into full and exclusive possession of the lands embraced in the grant, with the consent of the Seneca Nation; that in or about the year 1828 a boundary line between the lands conveyed and the remaining lands of the Seneca Nation was surveyed and plainly marked and blazed, which has ever since been recognized by the plaintiff and the successive grantees of Troup, Ogden and Rogers; that the lands embraced in the grant have been subdivided and sold to purchasers, and that extensive and valuable improvements have been made thereon in reliance upon the title under the grant of August 31, 1826.

Indeed, it is matter of common history that these lands have become the sites of flourishing towns and villages and cultivated farms, and are now the abode of thousands of people, pursuing the avocations of civilized life. There are certain facts antedating the transaction of August 31, 1826, which have an important bearing upon the question in this case. The compact entered into between the states of New York and Massachusetts on the 16th ■of December, 1786, was the settlement of a controversy which had ■arisen between the colonies of New York and Massachusetts, which was pending at the time of the revolution, respecting the right of sovereignty and jurisdiction over a very large territory within the chartered limits of the province of New York, but which was claimed by Massachusetts to be included within the limits of the earlier charter of the colony of Massachusetts Bay. The dispute still unsettled was after the adoption of the articles •ot confederation brought by Massachusetts to the attention of congress by petition praying for the appointment of commissioners for the settlement of its claim, in pursuance of the articles of confederation, and congress was proceeding to appoint commissioners when further action on its part was arrested by the appointment by voluntary agreement between the two states of commissioners to adjust the controversy. These 'commissioners in behalf of their respective states entered into the compact referred to.

By this compact Massachusetts ceded to the state of New York the right of government, sovereignty and jurisdiction over the whole territory in dispute, and New York ceded to Massachusetts the right of pre-emption of the soil and to extinguish the Indian title to about 6,000,000 .acres of land in the western part-of the state of New York, described in the treaty, Massachusetts surrendering to New York all claim to any other territory therein. By the 9th article of the treaty Massachusetts was authorized to treat with the native Indians for acquiring the right of soil in the territory thereby ceded to Massachusetts.

The tenth article is as follows: “ Tenthly. The commonwealth of Massachusetts may grant the right of pre-emption of the whole or any part of the said lands and territories to any person or persons who by virtue of such grant shall have good right to extinguish by purchase the claims of the native Indians, providing however that no purchase from the native Indians by any such grantees shall be valid unless the same shall be made in the presence of and approved by a superintendent to bo appointed for such purpose by the commonwealth of Massachusetts, and having no interest in such purchase, and unless such purchase shall be confirmed by the commonwealth of Massachusetts.” This compact after the adoption of the constitution of the United States and prior to the grant of August 31, 1826, was formally ratified and approved by congress, whose consent was made necessary both by the Articles of Confederation and by the Federal Constitution to any compact between the states. In 1791 the state of Massachusetts conveyed its title and interest in and to about 5,000,000 acres of the lands ceded to it by the treaty of 1786, subject to the Indian right, to Robert Morris, of Philadelphia, who subsequently conveyed the greater portion to persons constituting the Holland Land Company, whe afterwards, prior to 1826, conveyed the tract of 98,000 acres embraced in the deed of the Seneca Indians of August 31, 1826, to Troup, Ogden and Rogers, the grantees in that deed.

The pre-emption right to that part of the territory included in the cession to Massachusetts, not embraced in the conveyance to Morris in 1791, had prior to that date and on July 4, 1788, been sold by that state to Oliver Phelps (known as the Phelps and Gorham purchase), being a large tract off the eastern side of the lands embraced in the compact of 1786.

It is material to observe that there was no uniform procedure on the part of the purchasers from Massachusetts in acquiring the Indian title.

In 1788, at a council of the Seneca Indians held at Buffalo Creek, which was attended by Mr. Phelps and by an agent of Massachusetts, a treaty was made by which the Indians conveyed to Phelps, for a consideration agreed upon, the lands embraced in the Phelps and Gorham purchase. The United States was not represented at this treaty nor was any agent specially appointed in behalf of New York present at its execution. Under this title all the lands embraced in that treaty are now held. The validity of this grant, made without the intervention of the state or federal authorities, is impliedly recognized in the Pickering treaty between the United States and the Six Nations, proclaimed January 21, 1795, which in defining the lands of the Senecas commences the description, “ beginning on Lake Ontario at the north-west corner of the land they sold to Oliver Phelps,” and that tract is not embraced in the description.

On the 15,th of September, 1797, at a public council of the Seneca Indians held at Geneva, in the county of Ontario, the Indians conveyed to Robert Morris all the lands embraced in his purchase from Massachusetts, excepting certain Indian reservations, for the sum of $100,000. It is recited in the conveyance that it was made “ at a treaty held under the authority of the United States by the Hon. Jeremiah Wadsworth, a commissioner appointed by the president of the United States to hold the same,” etc. There was also present at this treaty a commissioner on the part of Massachusetts. This treaty was between the Indians and Morris under the supervision of the commissioners named. It was not a treaty between the United States and the Indians, at least no such treaty is found in the volume of Indian Treaties. 7 U. S. St. at Large. This grant is the origin of the title derived from the Indians to the lands known as the Holland Purchase and Morris Reserve in this state. The Indian grant to Troup, Ogden and Rogers of August 31, 1826, was the next large transaction for the extinguishment of the Indian title to lands embraced in the cession to Massachusetts. The lands were part of the lands reserved by the Indians in the treaty with Morris of 1797. _

_ The circumstances under which the grant of 1826 was made have already been stated.

Notwithstanding those grants to Phelps, Morris and to Troup, Ogden and Rogers, there was still left in the possession of the Senecas several large reservations to which the Indian title had not been extinguished. By treaties entered into between the United States and the Six Nations, of January 15, 1838, and between the United States and the Seneca Nation, of May 20, 1812, and the grants contemporaneously made, the right of the Seneca Nation to all the reservations, excepting two, was conveyed to the grantees who were also the holders of the right of pre-emption under the Massachusetts title.

The United States was not a mere formal party to these treaties. They contained ' stipulations relating to the removal of the Senecas to lands in the west, and the United States incurred obligations which made it a necessary party to the treaties. It is, however, worthy of observation that Ogden and Fellows, the assignees of the pre-emptive title of Massachusetts, and to whom the Senecas at the treaty of 1838, granted their remaining lands, did not take their title under any stipulation in the treaty, but by a deed contemporaneously executed by the Indians directly to them. The treaty simply recites the fact that at the making of the treaty Ogden and Fellows, the assignees of Massachusetts, had purchased the lands of the Senecas in the presence and with the approbation of the United States commissioner. By the successive transactions to which reference has been made, nearly all the lands of the Senecas originally embracing all the territory west of Seneca lake, within this state, have been purchased from them, and all that is retained by the Senecas of their original possessions is a comparatively small territory, now the home of the remnant of this once powerful tribe.

It is the contention in behalf of the plaintiff that-the grant to Troup, Ogden and Rogers, of- August 31, 1826, was void and wholly ineffectual to extinguish the Indian title to the lands which it purported to grant It is conceded that the grant was made at a public council of the Seneca Nation; that it was duly executed by the sachems, chiefs and warriors, in pursuance of a purchase openly and fairly made, and without fraud; that the grantees held and owned the exclusive right to extinguish the Indian title to the lands granted, as assignees of the rights of Massachusetts under the compact of 1786 ; that the negotiation for the purchase was made ana concluded and the deed executed in the presence of a commissioner of the United States and of a commissioner of the state of Massachusetts, and that the sale was afterwards duly confirmed by the legislature of that state, as provided in the compact; that at least $43,050 of the consideration agreed upon was paid by the purchasers and received by the Seneca Nation; that the deed was duly recorded and that the lands embraced therein were thereafter surrendered by the tribe to the grantees; the Indians abandoning the possession, and finally that for a period of more than half a century since the purchase was made the lands have been in the undisputed possession of the grantees in the deed and purchasers under them, claiming title under the grant, and without protest on the part.of the state or Federal government, or on the part of the Seneca Indians, until at or about the time of the commencement of this litigation. The claim of the plaintiff to undo this transaction and to be restored to the lands thus solemnly granted is based on two general propositions.

First, that from the time of the adoption of the constitution of the United States no valid purchase of Indian lands could be made, except under and in pursuance of a treaty between the United States and the tribe in occupation of the lands, entered into and executed under the treaty-making power conferred on the president and senate by that instrument, and

Second, that even if the mode of dealing with the Indians adopted in the present case was not, in the absence of any prohibitory legislation by congress, in contravention of the constitution, nevertheless the purchase of August 31, 1826, was invalid for the reason that it was made in violation of the 12th section of the act of congress passed March, 1802, entitled “ An act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontiers.”

These claims challenge the title not only of every purchaser and holder of lands within the boundaries of the grant of August 31, 1826, but also the title to many millions of acres of lands in this state, held under Indian treaties made by the state of New York with the Indian tribes within its borders, or under grants made by Indians to individuals under the authority of the state, where no treaty bad been made between the United States and the Indian occupants.

The nature of the Indian title to lands on this continent was established by the system' of public law adopted by European nations regulating their possessions here. It became the recognized principle that discovery followed by possession vested in the sovereign by whose subjects the discovery was made the absolute title to the soil of the lands within the limits of the discovered territory, subject however to the right of occupation by the Indian tribes, which could only be extinguished by their voluntary consent, unless forfeited by the laws of war. It was a necessary sequence to the claim that the sovereign had the ultimate title to the soil, that the right to extinguish the Indian occupation was exclusively vested in the sovereign. The Indians were held to be incapable of alienating their lands except to the crown, and all purchases made from them without its consent were regarded and treated as absolutely void. The title of the crown was subject to grant, but a grant from the crown only conveyed the fee subject to the right of Indian occupation, and when that was extinguished under the sanction of the crown, the possession then attached to the fee and the title of the grantee was thereby perfected.

These general principles were announced by Chief Justice Marshall in the great case of Johnson v. McIntosh, 8 Wheat., 543, which has ever since been regarded as a sound expositipn of the nature of Indian titles. The several colonial charters undertook to define the territorial limits of the respective colonies. In many cases the boundaries were indefinite and in some cases conflicting. The crown, however, except in case of proprietary charters, exercised the right of making grants of unappropriated lands within the chartered limits of the colonies, although the right of soil and jurisdiction was vested in the colonial governments.

On the declaration of independence the colonies became sovereign states. They were so acknowledged by the treaty of peace of 1783, and Great Britain by that treaty “ relinquished all claims to the government, property and territorial rights” within the several colonies. It is the received opinion that the colonies succeeded to the title of the crown to all the ungranted lands within their respective boundaries, with the exclusive right to extinguish by purchase the Indian title and to regulate dealings with the Indian tribes.

“ There was no territory in the United States,” said Johnson, J., in Harcourt v. Gaillard, 12 Wheat., 523, “ that was claimed in any other right than that of one of the confederated states; therefore, there could be no acquisition of territory made by the United States distinct from or independent of some one of the United States.” There was a controversy between the states and the United States as to the claim of the former to territory extending indefinitely westward, far beyond the limit of settlement, and whether the charters could be fairly construed to include these indefinite regions, which controversy, however, was happily compromised by cessions made by six of the states to the United States of territory claimed by them, commencing with that of New York, of March 1, 1781, and including the memorable cession of the northwestern territory by Virginia in 1784. See Clark v. Smith, 13 Pet., 195; Fletcher v. Peck, 6 Cranch, 142. This was the beginning of the acknowledged territorial possessions of the government of the United States, subsequently largely -increased by purchases from France and Spain.

The original states, before and after the adoption of the Federal Constitution, assumed the right of entering into treaties with the Indian tribes for the extinguishment and acquisition of their title to lands within their respective jurisdictions They' exercised the power, which had before been vested in the crown, to treat with the Indians, and this they did independently of the government of the United States. This was notably true of the state of New York. Laws were enacted from time to time by the legislature of the state authorizing treaties with the Indians. See Laws of 1784, chap. 22 ; Laws of 1788, chap. 47 ; Laws of 1813, chap. 92, § 52 ; Laws of 1839, chap. 58 ; Laws of 1841, chap. 234.

In 1788, the year after the adoption of the federal constitution, the state entered into treaties with the Onondagas and Oneidas, and in 1789 with the Cayugas, whereby it acquired the title to large tracts of lands in the central part of the state, and many subsequent treaties were made with these tribes by which the state finally acquired nearly all their remaining lands. Similar treaties were made with the St. Regis, Mohawk and Seneca Indians. In all more than thirty treaties were made between the state and various tribes, independently, and without the intervention of the government of the United States. See Collection of State Treaties, Assembly Document, 1889, in Report on Indian Problem. They were generally negotiated by commissioners appointed by the legislature acting in conjunction with the governor of the state. It appears that on two or three occasions a commissioner o| the United States was present when treaties were made. But in all cases the state and not the United States was the contracting party with the Indians. The treaties were in no sense treaties made by the president and senate of the United States. The list of governors who participated in making them embraces many of the great names in the history of the state. It includes the Clintons, Tompkins, Van Burén, Marcy, Wright, Seward. By virtue of these treaties this state entered upon the lands acquired thereby, and they have been sold, and built upon, and improved, and comprise some of the fairest and most prosperous districts of the state. It is evident that the eminent statesmen who participated in these negotiations did not understand that the prohibition in the federal constitution that “ no state shall enter into any treaty, alliance, or confederation,” Art. 1, § 10, or the other provision vesting the treaty-making power in the president and senate, Art. 2, § 2, prevented the state from negotiating with the Indian tribes therein for the extinguishment of the Indian title.

The United States under the articles of confederation, and afterwards under the federal constitution, assumed the position of protector of the Indian tribes. Concurrently with and as a consequence of the cessions made by the several states to the United States, national interests were created in respect of the Indian lands, of which the general government had become the proprietor.

In dealing with the Indians, the general government for a long period treated the Indians as quasi independent nations. Their position was anomalous. Their domestic affairs were regulated to a great extent by the rules and usages of the‘several tribes, and they were regarded as possessing some of the characteristics of a distinct political community. Treaties were made with them from time to time by the United States. One of the earliest of these was the treaty of Fort Stanwix, made with the Six Nations on the 22d of December, 1784, which established the boundary between their lands and the lands ceded by the states to the United Statea This was followed by the so called Pickering treaty, between the same parties, of 1795, and by a large number of other treaties with Indian tribes throughout the United States.

It cannot, we suppose, be questioned that these treaties were constitution ally made in the exercise of the treaty-making power of the federal government, and became under the constitution the supreme law. But the dealing by the general government with the Indian tribes through treaties was resorted to as a convenient mode of regulating Indian affairs, and not because, as with other nations, it was the only mode, independently of the arbitrament of war, of dealing with them. The policy of the general government in dealing with the Indians through treaties, and of regarding the Indian tribes as in some sense nations, which prevailed for nearly a century, has been radically changed by recent congressional legislation. The act of congress of March 3, 1871, prohibits further deahng_ with Indian nations or tribes by treaties. It enacts that “ no Indian nation or tribe within the territory of the United States shall be regarded or recognized as an independent nation, tribe or power, with whom the United States may contract by treaty.” The act of congress of March 3, 1885, extending the jurisdiction of the United States courts over crimes committed by or against Indians on their reservations, and the act of February 8, 1887, providing for the holding of Indian lands in severalty by the members of certain tribes, indicate the same policy on the part of the general government to change the method of dealing with the Indians through treaties, and substituting therefor control through federal legislation. . See U. S. v. Kagama, 118 U S. 375.

While the former policy prevailed, the making of treaties by the original states having the pre-emption title to the Indian lands within their limits directly with the Indians was not regarded by the general government as inconsistent with federal jurisdiction, or as in contravention of the provision in the federal constitution prohibiting a state from entering into “ any treaty, alliance or confederation.” The state did not so regard it, as the numerous treaties made by it show. That the same view was taken by the general government appears from the Pickering treaty of 1795, which expressly recognized the validity of the treaties of 1788 and 1789, made between this state and the Oneida, Onondaga and Cayuga nations. By the second article of that treaty “ The United States acknowledged the lands reserved to the Oneida, Onondaga and Cayuga nations in their respective treaties with the state of New York, and called their reservations, to be their property.” The compact between New York and Massachusetts expressly authorizes Massachusetts or its grantees to treat with the native Indians for the purchase of their title to the lands ceded; and this compact was ratified by congress after the adoption of the constitution. The practical construction given by the state of New York to the federal constitution, as shown by the numerous treaties made by it with the Indian tribes, and the recognition by the federal authority of their validity, is very strong evidence that the clause in the federal constitution prohibiting the states from entering into treaties does not preclude a state having the pre-emption right to Indian lands from dealing with the Indian tribes directly for the ex-tinguishment of the Indian title. Such a dealing is not a treaty in the constitutional sense and is not inconsistent with the exercise by the United States of its general jurisdiction for the protection of the Indians in their right of occupancy of their lands.

The remark of Justice McLean in his opinion in Worcester v. State of Georgia. 6 Pet., 581, that “ Under the constitution no state can enter into any treaty, and it is believed that since its adoption no state under its own authority has held a treaty with the Indians,” was true as referring to treaties for lands owned by the general government, but if intended to have a broader scope seems opposed to the facts of history.

The circumstance that Governor George Clinton in 1793, after the passage of the Indian Intercourse act of that year, transmitted to Mr. Jefferson, then secretary of state of the United States, exemplified copies of the different treaties entered into by the state of New York "with the various tribes of Indians within its borders, which treaties congress afterwards formally approved, does not militate against the view that the right of the state to enter into those treaties was not prohibited by the constitution. The treaties had gone into effect and had been executed, and the act of Governor Clinton was a prudential measure to remove any possible cloud upon the action of the state.

As to the first contention made in behalf of the plaintiff, we are, therefore, of opinion that the state of New York had the power and right under the constitution to make treaties with the Indian tribes within the state .for the purchase of their lands, to which it held the pre-emptive right, and that the purchase of August 31, 1826, having been duly made under its authority in pursuance of the compact with Massachusetts of 1786, in the presence and with the approval of commissioners both of Massachusetts and of the United States, was valid, and that the purchasers on the execution of the deed of that date, followed by the voluntary surrender and abandonment by the Indian occupants of the land granted, acquired a lawful and valid title in fee simple absolute and that a treaty between the United States and the Senecas was not necessary to give validity to the transaction.

The second general proposition asserted by the plaintiff, viz: that the grant of August 31, 1826, was invalid under the 12th section of the Indian intercourse act of congress of 1802, remains to be considered. That section is as follows: “ Sec. 12. And be it further enacted that no purchase, grant, lease or other conveyance of lands, or any title or claim thereto, from any Indian, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity unless the same shall be made by treaty or convention entered into pursuant to the constitution; and it shall be a misdemeanor in any person not employed under the authority of the United States to negotiate such treaty or convention, directly or indirectly, to treat with any such Indian nation or tribe of Indians for the title or purchase of any lands by them held or claimed, punishable by fine not exceeding $1,000 and imprisonment not exceeding twelve months: Provided nevertheless, that it shall be lawful for the agent or agents of any state who may be present at a treaty held with Indians, under the authority of the United States, in the presence and with the approbation of the commissioner or commissioners of the United States appointed to hold the same, to propose to and adjust with the Indians the compensation to be made for their claims to lands within such state, which shall be extinguished by treaty.”

By the 3rd clause of § 8, tit. 1, of the Federal constitution, power is given to congress, “ to regulate commerce with foreign nations, and among the several states and with the Indian tribes,” and the act of 1802 was passed in part execution of the authority. This clause in the constitution is construed as extending the power of congress to the regulation of intercourse with Indian tribes residing within, as well as those residing without the limits of the states. Story on Con., § 1100; opinion of McLean, J., Worcester v. State of Georgia, supra.

There is room for question whether the act of 1802 was intended to apply to treaties made by a sovereign state with tribes within the state for the extinguishment of the Indian title to lands therein, or assuming that such treaties were as a general rule within the purview of the statute, whether the act was intended to apply to and regulate the manner of acquiring the Indian title to lands embraced within the compact between Massachusetts and New York, which compact, afterwards ratified by congress, specifically authorized treaties to be made by Massachusetts with the Indians, and purchases to be made by the grantees of Massachusetts, subject only to the condition that they should be made under the supervision of a commissioner of that state and confirmed by the legislature.

But assumingothat the statute applies to the transaction of August 31, 1826, we are of opinion that the purchase then made was not in violation of the true meaning and effect of the twelfth section. It is important to consider the circumstances then existing. The‘United States, by virtue of the cessions made by the states, was the owner of a large territory, in possession of the Indian tribes, with the exclusive right of pre-emption. Ho state, nor foicign power, nor any company or individual could treat for or acquire the Indian title to such lands, except by the sanction and under the authority of the United States. The state of Hew York and the other states were, at the same time, owners of lands in the occupation of the Indian tribes within their respective limits, also having the exclusive power to extinguish the Indian title thereto. The United States could not impair the title of the states, nor purchase the lands, nor authorize any purchase without the consent of the state within which they were situated.

Before the revolution the right to regulate trade with the Indians within the colonies was understood to belong to the prerogative of the crown, Story on Const., § 1099, and a license from the crown was necessary to enable individuals to purchase the Indian title, and purchases made with such license were valid. It was,” said Baldwin, J., in Mitchel v. U. S., 9 Pet., 748, “ the universal rule that purchases made at Indian treaties, in the presence and with the approbation of the officer under whose direction they were held by authority of the crown, gave a valid title tg the lands; it prevailed under the laws of the states after the revolution, and yet.continues in them, where the right to the ultimate foe is owned by the states or the grantees. It has been adopted by the United States, and purchases made at treaties held by their authority have always been held good by the ratification of the treaty without any patent to the purchasers from the United States."

Prom this practice in colonial times, that a representative of the crown should be present and approve purchases from the Indians in order to make them valid, there naturally grew up the idea of federal supervision in these cases. In the light of these circumstances the twelfth section of the act of 1802 was enacted. The first part of the section invalidates any purchase of Indian lands except where made in pursuance of a constitutional treaty, that is, a treaty entered into between an Indian nation or tribe and the United States, by the president with the consent of the senate. This clause has a peculiarly appropriate application to purchases of Indian lands owned by the United States, for the sale of which its consent was indispensable.

The proviso was intended to except from the sweeping scope of the first part of the section dealings with the Indian tribes for the purchase of their right to lands within the states and of which. the states owned the pre-emptive title. It was, therefore, provided that purchases in these cases might be made by the agents of any state present at any treaty held under the authority of the United States, in the presence and with the approbation of the United States commissioner appointed to hold the same.

The purchase must be made at a«treaty, asun other cases. This ensures publicity and affords a protection against fraud. But the proviso does not require tlifit the treaty should be one between the United States and the tribe from whom the purchase is made, as in the cases coming under the first clause of the section. It is sufficient if the purchase is made at a treaty held “ under the authority of the United States,” and in the “ presence and with the approbation of the commissioner or commissioners of the United States,” etc.

The proviso would have little if any meaning if construed as requiring a formal constitutional treaty in these cases, which - were manifestly intended to be excepted from the operation of the primary clause.

The true spirit and intent of the proviso was, we think, to permit the State or its agents to enter into a treaty or convention, with an Indian tribe within its borders, for the purchase of the preemptive right, provided it was entered into in the presence of and with the approval of a commissioner of the United States, appointed to attend the same, and that such a treaty is within the true meaning of the proviso a treaty held under the authority of United States, and required no ratification or proclamation by the federal authorities.

The policy of the state of New York has been in full accord with that of the United States in prohibiting all private dealings with and purchases from Indians, except under the supervision of public officials and with the consent of the legislature. Const., 1777, art. 37; id., 1822, art. 7, § 12 ; id., 1846, art. 1, § 16. The purpose of the proviso in the twelfth section of the act of 1802 was to establish a federal supervision over contracts for the extinguishment of Indian title to lands within the several states, while in other cases such extinguishment was to be effected only by formal treaties between the United States and the Indian tribes.

It is very significant of the construction of § 12 of the act of 1802 that the first Indian intercourse act of congress, passed July 22, 1790, declared that no sale of lands within the United States made by any Indians, or nation or tribe of Indians, should be valid to any person or persons, “ or to any state, whether having the right of pre-emption or not,” unless made at some public "treaty, etc. The clause quoted was omitted in the next act of March, 1793, and a section was inserted with a proviso substantially like § 12 in the permanent act of 1802. This change indicates that it was the intention of congress to place purchases of Indian lands within the states upon a different footing than other purchases. The purchase of August 31, 1826, was made in conformity with the compact between New York and Massachusetts. The commissioner of Massachusetts was present and approved the purchase and it was sanctioned by the legislature of that state.

The United States commissioner was also present. No agent o£ the state of New York, specially appointed as such, conducted the negotiation with the Indians. The state of New York accepted the result of the negotiation by subjecting the lands to taxation and exercising full jurisdiction over the same from the time of the purchase. The state treated the purchase as though made by its authority, and the agent of Massachusetts, in view of the compact of 1786, may properlylbe regarded as the agent of New York in the transaction, within the proviso of the act of 1802. The Federal authorities also treated the transaction as formal and regular, as is indicated by the action of the executive department of the United States government and of the senate of the United States. The secretary of war designated a commissioner to attend on behalf of the United States, at (as is stated in the commission) “a treaty which the proprietors propose to hold,” etc. The papers transmitted to the senate were accompanied by a communication from the department of Indian affairs, in which the opinion was expressed that-the department regarded the transaction one which did not require the consent of the senate under the treaty-making power. The senate accompanied its refusal to ratify it by a resolution which, while it recognized the transaction as a “ treaty with the Seneca Indians," declared that in the judgment of the senate “there was no necessity” for its interference.

Upon full consideration we are of opinion that the grant of August 31, 1826, was a valid transaction and was not in contravention of the provisions of the federal constitution or of the Indian intercourse act of 1802 and vested in the purchasers a good title in fee simple absolute to the lands granted, free from any claim of the Seneca Nation.

The affirmance of the judgment below might be placed on the narrower ground that, conceding the invalidity of the grant of August 31, 1826, under the Indian intercourse act of 1802, nevertheless the title was subsequently confirmed and made good by the act of congress of 1846, authorizing the president to receive from the Ontario Bank, and deposit in the treasury of the United States, the money and securities representing the purchase money of the lands, followed by the transfer of the fund to -the United States in 1855. The United States, which imposed the restriction, could waive it and give effect thereby to the intention of the parties to the grant, and the act of receiving the fund and administering it for many years as a trust fund for the benefit of the plaintiffs furnishes the most emphatic evidence of a ratification on its part of the transaction from which the fund was derived.

We are also of opinion that as the right of the plaintiff to sue was given by, and is dependent upon the statute, chap. 150 of -the Laws of 1845 ; see Strong v. Waterman, 11 Paige, 607, the statute of limitations is a bar to the action. By the act of 1845 the actions thereby authorized are to be brought and maintained “ in the same time"” as if brought by citizens of the state. The question is not whether an Indian title can be barred by adverse possession, or by state statutes of limitation. The point is that the plaintiff cannot invoke the special remedy given by the statute without being bound by the conditions upon which it is given.

In view of the numerous Indian titles in this state originating in treaties by the state or in purchases made with its sanction by individuals, we prefer to place our judgment on the broader ground, which will remove any cloud upon the validity of those titles.

As to the point that it does not affirmatively appear that the whole of the purchase money was paid by Troup, Ogden and Rogers, it is sufficient to say that full payment is acknowledged in the deed, and that if this were not so, it would under the circumstances be presumed.

These views lead to an affirmance of the judgments below.

All concur.