based: propriated should be treated as the common is too long to quote in full, these extracts sufproperty of the nation, in respect to which all ficiently disclose the reasons upon which it is who were members thereof, whether by birth or adoption, should be entitled to equal rights "3d. The 'patent' was made to the 'Cheroand privileges. That there might come a time kee Nation' in 1838, and the Cherokee Nation when an allotment in severalty would be ad- was then composed of citizens by right of visable, was something that was contemplated blood, and so continued to be until the exiand provided for. And while if allotment had gencies of the late war arose, when, in 1866, been made at the time among the 13,573 Chero- it became necessary to make a new treaty with kees there would have been enough land to have the United States government. By this treaty. 216] given each nearly 1000 acres, *yet, with made by and with this Nation, other classes of the expected coming in of other tribes, either persons were provided to be vested with all the to take certain selected portions of the reser- rights of native Cherokees' upon specified vation as tribes by an absolute title, or to en- conditions. These conditions have been fullarge the numbers of the Cherokee Nation by filled as regards the acknowledged colored citadoption (as in the case of these Delawares) itizens of this Nation and the so called Delawas foreseen that the time might come when ware and Shawnee citizens. I refer you to arthe allotment might not secure even 160 acres ticle 9th of said treaty in regard to colored citto each individual, and so was added the ex-izens, and article 15th, first clause, as regards press guarantee that the purchasing Delawares Indians provided to be settled east of 96°. should obtain at least that amount in the allot- The language is, they shall have all the rights ment. True, the course of events has not of native Cherokees' and' they shall be inbeen what was then contemplated, but in or corporated into and ever after remain a part der to determine the meaning of this contract of the Cherokee Nation on equal terms in we must place ourselves back in the circum- every respect with native Cherokees. stances of the parties at the time, with their surroundings and expectations. In that light we see nothing in the matters suggested by counsel sufficient to overthrow the plain import of the language used in the agreement, and must conclude that by such agreement the Delawares became incorporated into the Cherokee Nation, becanie members thereof, and, as such, entitled equally with the native Cherokees to all their rights in the reservation and outlet. "6th. If the lands of the Nation were and are the common property of citizens, then no citizen can be deprived of his or her right and interest in the property without doing an injustice, and without a violation of the constitution which we are equally bound to observe and defend. While the lands remain common property, all citizens have an equal right to the use of it. When any of the land is sold under provisions of treaty, all citizens have an equal right to the proceeds of their joint property, whether divided per capita or invested. Further comment on this case is unnecessary. We see no error in the conclusions of the Court of Claims, and its decree is affirmed. Further, it may be remarked that the action of the Cherokee Nation up to the year 1882 was in the line of the construction we have placed upon this contract, for up to that date Senators, such is the treaty and such is there was no distinction made between the na- the constitution. I have referred you to tive Cherokees and these Delawares in the dis- them, and stated their evident meaning in the tribution of funds from whatever source ob-premises 'to the best of my ability,' as is my tained. Out of the moneys received by the duty. To the classes of citizens this [218 Cherokee Nation on account of lands west of bill would exclude, attach 'all the rights and the 96th degree set apart for the Osage Indi- privileges of citizenship according to the conans, under the Act of June 5, 1872, $200,000 stitution.' To three of these classes attach was distributed per capita, in which distribu- also the rights of native Cherokees,' accordtion the Delawares shared equally with the ing to treaty." native Cherokees. And again, when, on account of sales west of the 96th degree, Congress on June 16, 1880, appropriated $300,000, such sum was also paid out per capita, the Delawares sharing equally with the native Cherokees. Such action is of significance in UNITED STATES and the CHEROKEE NAdetermining the understanding of the parties to the contract. It is a practical interpretation by the parties themselves of the contract they made. It is also worthy of note that when in 1883 a bill passed the National Council for the payment to the native Cherokees alone of a certain sum of money received as rental from the Cherokee Strip Live Stock Associa217] tion, which *so far as appears was the 1. The agreement of June 7, 1869, entered into befirst manifestation of a claim of a difference between the native Cherokees and the regis NOTE. AS to construction and operation of tered Delawares as to the extent of their in-treaties, see note to United States v. The Amistad 10: 826. ests in the lands or the proceeds thereof,it was vetoed by D. W. Bushyhead, the then Principal Chief of the Cherokee Nation, on the rights: jurisdiction and control over them, see note ground that such action was in violation of the agreement of 1867. It is true the bill was passed over his veto. While the veto message TION, Appts., 27. JOHNSON 'BLACKFEATHER, Principal (See S. C. Reporter's ed. 218-221.) Agreement between the Shawnees and Cherokees --appeal. As to Indians and Indian tribes, their status and Worcester v. Georgia, 8: 483. As to what particularity in exceptions is necessary in order to a review in appellate court, see note to Moore v. Bank of Metropolis, 10: 172. tween the Shawnees and the Cherokee Nation, | in pursuance of article 15 of the treaty of July 19, 1866, secured to the Shawnees equal rights with the native Cherokees in that which was the common property of the Cherokee Nation, to wit, the reservation and the outlet, as well as all profits and proceeds thereof. 2. Without an appeal, a party will not be heard in an appellate court to question the correctness of the decree of the trial court. [No. 671.] Indians, and that the annuities and interests as recited and the investment or investments upon which the same are based shall hereafter become and remain the annuities and interest and investment or investments of the Cherokee Nation of Indians, the same as they have been the annuities and interest and investments of the Shawnee tribe of Indians. sum of fifty thousand dollars shall be paid to the said Cherokees as soon as the same shall And that the Argued and Submitted Oct. 18, 1894. Decided be received by the United States for the said Nov. 19, 1894. APPEAL from a decree of the of Claims, in a suit to enforce the claim of the Shawnee Indians domiciled in the Cherokee Nation to an equal interest in the Cherokee reservation and outlet, and the proceeds and profits thereof, adjudging and decreeing that the claimants in this suit and those whom they represent, being citizens of the Cherokee Nation of Shawnee blood or parentage, are entitled to participate in the common property of the Cherokee Nation in the same manner and to the same extent as Cherokee citizens of Cherokee blood or parentage, etc. Affirmed. The facts are stated in the opinion. Mr. J. E. Dodge, Assistant Atty. Gen., for the United States. Messrs. Charles A. Maxwell and George S. Chase for the Cherokee Nation. Mr. Charles Brownell for the appellee. Mr. Justice Brewer delivered the opinion of the court: This case is similar to that just decided in which the same parties were appellants, and 219] Charles Journeycake, Principal Chief, etc., defendant. The petition was filed under the authority of the same Act of Oct. 1, 1890 (26 Stat. at L. 636) and to enforce the claim of the Shawnee Indians domiciled in the Cherokee Nation to an equal interest in the Cherokee reservation and outlet, and the proceeds and profits thereof. In pursuance of article 15 of the treaty of July 19, 1866, an agreement was, on June 7, 1869, entered into between the Shawnees and the Cherokee Nation, through their representatives, the substantial portions of which are as follows: "Whereas the Shawnee tribe of Indians are civilized and friendly with the Cherokees and adjacent tribes, and desire to settle within the Cherokee country on unoccupied lands east of 96 It is, therefore, agreed by the parties hereto that such settlement may be made upon the following terms and conditions, viz: That the sum of five thousand dollars belonging to the Shawnee tribe of Indians and arising under the provisions of treaties between the United States and the said Shawnee Indians as follows, viz, for permanent annuity for educational purposes, per fourth article of treaty 3d of August, 1795, and third article treaty 10th of May, 1854, one thousand dollars; for interest at five per cent on forty thousand dollars for educational purposes, per third article of treaty 10th of May, 1854, two thousand dollars; for permanent annuity in specie for educational purposes, per fourth article of treaty 29th of September, 1817, and third article 10th of May, 1854, two thousand dollars, shall be paid annually to the Cherokee Nation of said Shawnees from the sales of the lands in the state of Kansas known as the absentee Shawnee lands in accordance with the resolution of Congress approved *April 7, 1869, en- [220 titled A resolution for the relief of settlers upon the absentee Shawnee lauds in Kansas,' and the provisions of the treaty between the United States and the Shawnee Indians concluded May 10, 1854, and also that the said Shawnees shall abandon their tribal organizations. hereto that in consideration of the said payAnd it is further agreed by the parties stated that the said Cherokees will receive the ments and acts agreed upon as hereinbefore said Shawnees-referring to those now in said tribe who may be at present elsewhere and Kansas and also to such as properly belong to Shawnees now residing in the Indian territory including those known as the absentee unoccupied lands east of 96, and that the said -into the country of the said Cherokees upon Shawnees shall be incorporated into and ever after remain a part of the Cherokee Nation on equal terms in every respect and with all the privileges and immunities of native citizens of said Cherokee Nation: Provided, That all of the said Shawnees who shall elect to avail themselves of the provisions of this agreement shall register their names and permanently locate in the Cherokee country, as herein provided, within two years from the date hereof; otherwise they shall forfeit all rights under this agreement. The rights of the petitioners are to be determined by this agreement in the light of article 15 of the treaty. The principal difference between this contract and that made between the Cherokees and the Delawares consists in the fact that in this there is no provision for the purchase of "homes" or any payment of moneys on account thereof into the national fund of the Cherokees; but, nevertheless; there is the express stipulation "that the said Shawnees shall be incorporated into and ever after remain a part of the Cherokee Nation, on equal terms in every respect, and with all the privileges and immunities of native citizens of said Cherokee Nation." For the reasons stated in the opinion in the former case it must be held that this stipulation secured to the Shawnees equal rights with the native Cherokees in that which was the common property of the Cherokee Nation, to wit, the reservation and the outlet, as well as all profits and proceeds thereof. *So far, therefore, as the appellants [221 are concerned, there was no error in the decree. There is an application by the appellee for a modification of the decree increasing the sums awarded per capita to the Shawnees. It is enough to say in reference to this application that no appeal was taken by the appellee. Without an appeal, a party will not be heard | H. P. LLOYD, Assignee of E. L. HARPER, in an appellate court to question the correctness of the decree of the trial court. The Stephen Morgan v. Good, 94 U. S. 599 [24: 266]. The decree of the Court of Claims is af firmed. Piff. in Err., [No. 81.] APPEAL from a judgment of the Circuit Argued and Submitted Nov. 19, 1894. Decided of the United States for the West ern District of Missouri, against the plaintiff, F. N. Deland, and in favor of the county of Platte, defendant, in an action to recover on certain bonds and coupons. Dismissed. The facts are stated in the opinion. Mr. Geo. A. Sanders for appellant. No appearance for appellee. THE CHIEF JUSTICE: This was an action of assumpsit brought by F. N. Deland against the county of Platte to recover on certain bonds and coupons in the petition set forth. The cause was submitted to the court for trial. a jury having been waived by agreement of the parties. The court made findings of fact and gave an opinion, which concluded thus: "On the facts of this case I declare the law to be that the plaintiff cannot recover." November 5, 1890, judgment was entered for the defendant, preceded by the recital of a gen; eral finding in its favor. Motion for new trial 222]was made and overruled, and *defendant moved "for appeal, which motion was by the court sustained and appeal allowed," and plaintiff was granted time for bill of exceptions. The record then states that plaintiff presented "his bond for appeal. . . which bond was approved by the clerk and filed in said cause," but the bond is not set out. Then follows an assignment of errors and bill of exceptions. No writ of error was issued or citation signed, and no appearance has been entered for the county of Platte. The record was filed in this court February 2, 1891. Dec. 3, 1894. N ERROR to the court of appeals of the of that court reversing the judgment of the chancery court of that state, in favor of H. P. Lloyd, assignee, plaintiff, against Hattie A. Matthews et al., defendants, for the value of stock. Dismissed. See same case below, 89 Ky. 625. Statement by Mr. Chief Justice Fuller: Hattie A. Matthews held the demand note of E. L. Harper for $5000, on which the interest had been paid to January 1, 1882. June 21, 1857, Harper was the owner of some shares of stock in the Fidelity Building, Savings & about $5000, which he, being insolvent, transLoan Company of Newport, Kentucky, worth ferred on the morning of that day to Miss blank indorsement in the building company's Matthews, in part payment of the debt, by book. Afterward the name of J. H. Otien was inserted as a proper person to obtain the money, and for this reason he was made a party to these proceedings, though having no transfer, Harper made an assignment of all his real interest therein. A few hours after the property for the benefit of his creditors under the insolvent laws of Ohio, and, the person named as assignee failing to qualify, H. P. Lloyd, the present plaintiff in error, was appointed, by the proper court, such assignee. Certain creditors of Harper brought suit in the chancery court of Campbell county, Kentucky, on their several debts, and attached the stock In many jurisdictions an appeal from a court of general jurisdiction is in the nature of a writ NOTE.-A8 to jurisdiction in the United States Suof error, but that is not so in respect of the cir-preme Court, where Federal question arises, or where cuit courts of the United States, as to which the draw in question statutes, treaty, or Constitution, see distinction between the two modes of review notes to Martin v. Hunter, 4: 97, Mattbews v. Zane. has generally, if not always, been observed in 2: 654, and Willams v. Norris, 6: 571. the acts of Congress. As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state constitution; to revise decrees of state courts as to construction of state laws, see notes to Hart v. Lamphire, 7: 679, and Commercial Bank of Cincinnati v. Buckingham, 12: 169. Whatever the course pursued in the courts of the state of Missouri under the statutes of that state in relation to the allowance of appeals, the appellate jurisdiction of this court is regulated by the acts of Congress, and final judgments of the circuit court in cases such as necessity of Federal question: what constitutes Fedthis can only be revised on writ of error. Appeal dismissed. As to jurisdiction of Federal over state courts; eral questions, see note to Hamblin v. Western Land Co. 37: 267. as the property of Harper. These cases were consolidated, and while they were pending. September 16, 1887, Miss Matthews and Otten filed their joint petition to be made parties defendant, which was done. They alleged the ownership by Harper of the stock; the transfer by indorsement in the book, which was made an exhibit; that Miss Matthews was a creditor of Harper to an amount equal to the face value of the stock; that the transfer of the stock was made some hours before the execution of the deed of assignment by Harper; and was bona fide and for a valuable consideration, and passed all Harper's interest; that Harper was a citizen and resident of the state of Ohio at the time of the assignment and theretofore; that "by the laws in existence at that time in said state of Ohio, debtors had the right to make preferences in the payment of their creditors either in the deed of assignment or by paying them theretofore in such a way 2241 as they saw proper;" that *Lloyd had been made a party as assignee, and was claiming the stock as part of Harper's estate, while the plaintiffs in the consolidated cases asserted their claims under the attachments; and praying that the stock be adjudged to Miss Matthews. January 14, 1888, Miss Matthews and Otten filed a joint amended answer, attaching the note as an exhibit, and making this and their former petition a cross petition. On the same day Lloyd, assignee, filed a reply to the answer and answer to the cross petition. This pleading contained five paragraphs. The first denied that Harper owed Miss Matthews anything at the time the stock was assigned; admitted that at the time of the execution of the assignment Harper and Miss Matthews were both citizens and residents of the state of Obio; denied" that at the time of making said assignment debtors had by the laws of the state of Ohio the right to prefer their creditors in the deed of assignment." The second paragraph asserted that the transfer and conveyance of the stock to Otten by Harper was made for the purpose and with the intent to defraud the creditors of Harper of their just and lawful debts, and that such transfer and assignment was fraudulent and void under and by virtue of section 4196 of the Revised Statutes of the state of Ohio, which provided as follows, to wit: "Every gift, grant, or conveyance of lands, tenements, hereditaments, rents, goods, or chattels, and every bond, judgment, or execution made or obtained with intent to defraud creditors of their just and lawful debts or damages, or to defraud or deceive the person or persons purchasing such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect." with the intent to prefer one or more creditors, shall inure to the equal benefit of all creditors in proportion to the amount of their respective claims, and the trusts arising under the same shall be administered in conformity with the provisions of this chapter." On May 18, 1888, Miss Matthews filed reply to the original and cross petition of Lloyd, trustee, as follows: The defendant Hattie A. Matthews for reply to answer and cross petition of H. P. Lloyd says she admits E. L. Harper was insolvent when he assigned the building association stock to her. "She admits that he assigned the stock to her with the intention to prefer her to the exclusion of the creditors, but, as was stated in her original pleadings, this was allowable, under the laws of Ohio. "She denies that under the provisions of the laws which are set out in said pleading of Lloyd, to which this is a reply, that there is anything which invalidates the transfer of the stock to this defendant, the same involved in the case. "Wherefore the defendant prays as in her original pleadings and for general relief." The chancery court rendered judgment in favor of Lloyd, trustee, for the full value of the stock, amounting as a money demand against the building association to the sum of $4914.89, and Miss Matthews and Otten appealed to the court of appeals of the state of Kentucky, which reversed the judgment of the chancery court, and remanded the cause, with directions to render judgment in favor of Miss Matthews in conformity to the opinion. Matthews v. Lloyd, 89 Ky. 625. To review this judgment a writ of error from this court was allowed. Messrs. H. P. Lloyd and C. L. Raison, Jr. for plaintiff in error. Messrs. Chas. J. Helm, Chas. H. Fisk and John S. Ducker for defendants in error. *Mr. Chief Justice Fuller delivered [226 the opinion of the court: The Federal question upon which plaintiff relies to sustain our jurisdiction is that under the statutory law of Ohio, set out in his pleading, the transfer of the stock in question was void, and that the court of appeals of Kentucky in rendering judgment did not give that full faith and credit to the public acts, records, and judicial proceedings of the state of Ohio which the Constitution and the laws of the United States require. Const. art. 4, § 1; Rev. Stat. § 905. give full faith and credit to the laws of the state of Ohio which were presented in the pleadings; in failing to give full faith and credit to the judicial construction of such laws by the highest court of said state; and in failing to give full faith and credit to the judicial proceedings of the probate court of Hamilton county, Ohio, as set set forth in the pleadings." The first error assigned is as follows: "The court of appeals of Kentucky erred in the decisThe third paragraph denied any considera-ion rendered in this case below, in failing to tion for the transfer. The fourth alleged the transfer to be fraudulent and done with intent to hinder and delay Harper's creditors. The fifth averred that the transfer was made by Harper with the intent to prefer Miss Matthews, if she was a creditor, which defendant denied, over his other creditors, and was void under section 6343 of the Revised Statutes of the state of Ohio, which read as follows: 225] *"All assignments in trust to a trustee or trustees, made in contemplation of insolvency, 155 U.S. U. S., Book 39 9 We do not find that the record contains any judicial proceedings of the probate court of Hamilton county, Ohio, but suppose the refer 129 ence to be to proceedings in insolvency upon | that construction was or was not correct, the filing of the deed of assignment by Harper, upon the ground that if it was concluded that under which Lloyd, trustee, claims, and that the construction was incorrect, it would follow such insolvency proceedings could have no that the state courts had refused to give full greater effect on the question of title than al- faith and credit to the statutes involved, our lowed by the laws of Ohio in the matter of the jurisdiction would be enlarged in a manner preference of creditors. never heretofore believed to have been contemplated." Grand Gulf R. & Bkg. Co. v. Marshall, 53 U. S. 12 How. 165 [13: 938]; Cook County v. Calumet & C. Canal & D. Co. 138 U. S. 635 [34: 1110]. The court of appeals of Kentucky held that, as the parties all resided in Ohio, and the entire transaction occurred there, its validity was to be tested by the law in force there; that at common law a debtor had a right to prefer a creditor, either by payment or an express preference in a deed of assignment; that he had a right to pay his debt, and it was only by vir tue of statutory law that such a payment could be held invalid and the creditor be compelled to surrender his advantage; that, in the ab sence of any showing of the existence of such a statute in another state, it must be presumed that the common law was in force there; that sec227tion *6343 of the Revised Statutes of Ohio, set out in the pleadings, did not appear "to embrace a case like this one, but to relate alone to preferences made in deeds of assignment to trustees for creditors generally;" that this transfer could not properly be held to be a part of the deed of assignment; and that, tested by the rules of the common law, the preference was not invalid. Now, in arriving at these conclusions, the court of appeals did not concur with the views of Harper's assignee, but does it therefore follow that full faith and credit was denied to the laws of Ohio and to the construction of such laws by the highest court of that state? The courts of the United States when exercising their original jurisdiction take notice, without proof, of the laws of the several states, but in the Supreme Court of the United States, when acting under its appellate jurisdiction, whatever was matter of fact in the state court whose judgment or decree is under review is matter of fact there. And whenever a court of one state is required to ascertain what effect a public act of another state has in that state, the law of such other state must be proved as a fact. Chicago & A. R. Co. v. Wiggins Ferry Co. 119 U. S. 615 [30: 519]; Hanley v. Donog. hue, 116 U. S. 1 [29: 535]. This record contains nothing to show, as matter of fact, that the public acts of Ohio had by law or usage in Ohio any other effect than was given them by the court of appeals of Kentucky. Writ of error dismissed. Mr. Justice Harlan was of opinion that the writ of error should be retained and the judgment affirmed. ARTHUR ORIGET, Plff. in Err., v. ELIZABETH C. HEDDEN, Executrix of EDWARD L. HEDDEN, deceased, late Collector of the Port of New York. (See S. C. Reporters' ed. 228-240.) Exclusion of testimony-valuation of imported goods-sufficient examination-U. S. Rev. Stat. 2900-dutiable value-sufficient hearing-merchant appraiser-extent of examination. 1. In order to make the exclusion of an answer to a question put to a witness reversible error, the question must clearly admit of an answer favorable to the party proposing it on a matter manifestly relevant to the issue. 2. Where the examination of one case in each invoice of an importation is sufficient to determine the value of the importation, the application of the valuation of that case to the entire importation of which it formed a part, is proper. Where the inference is a reasonable one that 3. 5. The court of appeals was obliged to determine the case on the record, and plaintiff in error had failed to plead the construction given. the Ohio statutes by the courts of Ohio, or to introduce the printed books of cases adjudged in the state of Ohio, or to prove the common law of that state by the parol evidence of persons learned in that law, or to put in evidence the laws of that state as printed under the authority thereof, or a certified copy thereof, as provided by the law of Kentucky. Ky. Gen. Stat. 1888, chap. 37, p. 546, §§ 17, 19. The court of appeals was left, therefore, to construe the parts of the Ohio laws that were pleaded as it would local laws; and it is settled that, under such circumstances, where the va lidity of a state law is not drawn in question, but merely its construction, no Federal question arises. As was remarked in Glenn v. Garth, 147 U. S. 360, 368 [37: 203, 206]: "If every time the courts of a state puts a construc 228] tion upon the statutes of *another state, this court may be required to determine whether the goods in each importation are of the same character and value, the examination of one case of them is sufficient for all. Section 2900 of U. S. Rev. Stat. is constitutional in its provisions for fixing or authorizing a twenty per cent additional duty. Under the revenue system of the United States the question of the dutiable value of imported articles is not to be tried before the appraisers, as if it were an issue in a suit in a judicial proceeding. 6. If the importer is afforded such notice and hearing on the appraisal of the goods as enables him to give his views and make his contention in respect of their value, he cannot complain. Where it clearly and distinctly appeared that the merchant appraiser examined the goods in one case out of each importation sufficiently to satisfy him that they were the same order of goods that his firm imported, this established the 7. NOTE. As to lien of United States for duties, see note to United States v. 350 Chests of Tea, 6: 702. As to action to recover back duties paid under protest; protest, how made, and its effect, see note to Greely v. Thompson, 13: 397. |