tion the Congress of the United States to settle and release the claim of the United States against the said Samuel Mackey, deceased, as principal, and John Drenner, Lewis Evans and Hiro T. Wilson, as securities; and after the passage of any law in relation to said claim by Congress, to receive all moneys that may be due the estate of the said Mackey, deceased, from the Treasurer of the United States, and full receipts, acquittances and relinquishments thereof to make in their name; and further, to adjust and settle with the Treasurer of the United States, or other officers of the government, all other claims of said Mackey against the United States, and to receive all moneys due from the United States to said Mackey on any account whatever. Raines came to Washington and procured a settlement of the accounts between the government and Samuel Mackey, deceased; but the Treasury Department refused to pay him the balance due Mackey upon the power of attorney, and required him to take out letters of administration. He thereupon applied to the Orphans' Court of the County of Washington, in the District of Columbia, for letters of administration, which were granted upon his executing bond, with the defendant and James Reeside as sureties. He then received from the Treasury the sum of $10,513.05, out of which he paid the expense of administration, and for the balance he executed the following receipt: 7th July, 1841. Received of Austin J. Raines, administrator of Samuel Mackey, deceased, the sum of ten thousand five hundred and thirteen dollars and five cents, being the amount due to the representatives next of kin and distributees of said Samuel Mackey, from said administrator. (Signed) JAMES MACKEY, JOSEPH TALLEY, PRESTON T. MACKEY. By their attorney in fact A. J. RAINES." Reeside, the co-obligor in the administration bond, having died several years ago, the proc. ess was served only on the defendant. the defendant to show that said Raines paid said sum of $10,505.20 to said James Mackey, Joseph Talley, and Preston T. Mackey, or the survivors of them; and although the jury may find that the paper offered in evidence, purporting to be a power of attorney from said James Mackey, Joseph Talley and Preston T. Mackey to said Raines is genuine, yet the said Raines had no authority to receipt for said® parties by himself, as their attorney in fact, to himself as administrator, and that such receipt is not a payment by him as administrator of said parties; and unless such payment be proved otherwise than by such receipt, the said Raines has not performed the condition of this bond as administrator of Samuel Mackey, and the said defendant is liable in this action to the said James Mackey, Joseph Talley and Preston T. Mackey, or the survivors of them, for the said sum of $10.505.20, with interest thereon from the date when the same was received;" which instruction was refused, and to which an exception was taken. There were other exceptions, but this one presents the material points in the case. By the Treaty made between the United States and the Cherokee Nation, dated March 14, 1835, in article 5, the United States covenanted and agreed that "the lands ceded to the Cherokee Nation in the foregoing article shall, in no future time, without their consent, be included within the territorial limits or jurisdiction of any state or territory. But they shall secure to the Cherokee Nation the right of their national councils to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons and property within their own country, belonging to their people, or such persons as have connected themselves with them: provided always, that they shall not be inconsistent with the Constitution of the United States, and such Acts of Congress as have been or may be passed regulating trade and intercourse with the Indians," &c. The Cherokees are governed by their own laws. As a people, they are more advanced in civilization than the other Indian tribes, with the exception, perhaps, of the Choctaws. By the national council their laws are enacted, ap The declaration contained several counts, stating that the said Samuel Mackey died in testate, leaving Sarah Mackey, his widow, and James Mackey, Preston T. Mackey, Will-proved by their executive, and carried into efiam Mackey, George Mackey, Nancy Talley, wife of Joseph Talley, and Corine Mackey, all being citizens of the Cherokee Nation, and that, by the laws of the said Cherokee Nation, the widow and children were distributees of the deceased. The defendant filed a general plea of performance, on which issue was joined. On the trial before the jury, among other prayers for instruction, was the following: "If the jury find from the evidence that Austin J. Raines, as administrator of Samuel Mackey, deceased, received from the Treasury of the United States the sum of $10,513.05, and after deducting the expenses of administration there remained in his hands the clear sum of $10,505.20, and no debts of said deceased are shown payable by said administrator; and James Mackey, Joseph Talley, and Preston T. Mackey were the original administrators of said Samuel Mackey, under the laws of the Cherokee Nation, the burden of proof is on rect through an organized judiciary. Under a law "relative to estates and administrators," letters of administration were granted to the persons above named on the estate of Samuel Mackey, deceased, by the Probate Court, with as much regularity and responsibilities as letters of administration are granted by the state courts of the Union. This organization is not only under the sanction of the general government, but it guarantees their independence, subject to the restriction that their laws shall be consistent with the Constitution of the United States, and Acts of Congress which regulate trade and intercourse with the Indians. And whenever Congress shall make provision on the subject, the Cherokee Nation shall be entitled to a delegate in the national Legislature. It is refreshing to see the surviving remnants of the races which once inhabited and roamed over this vast country as their hunting grounds, and as the undisputed proprietors of the soil, exchanging their erratic habits for the bless- | tributees. Regularly, an action by the distribings of civilization. A question has been suggested whether the Cherokee people should be considered and treated as a foreign state or territory. The fact that they are under the Constitution of the Union, and subject to Acts of Congress regulating trade, it is a sufficient answer to the suggestion. They are not only within our jurisdiction, but the faith of the nation is pledged for their protection. In some respects they bear the same relation to the federal government as a territory did in its second grade of government, under the Ordinance of 1787. Such territory passed its own laws, subject to the approval of Congress, and its inhabitants were subject to the Constitution and Acts of Congress. The principal difference consists in the fact that the Cherokees enact their own laws, under the restriction stated, appoint their own officers, and pay their own expenses. This, however, is no reason why the laws and proceedings of the Cherokee territory, so far as relates to rights claimed under them, should not be placed upon the same footing as other territories in the Union. It is not a foreign, but a domestic territory-a territory which originated under our Constitution and laws. utees could not be sustained, unless an application had been made to the Orphans' Court in this District to order a distribution, and authorize or direct the administrator, Raines, to pay the same. This administration being ancillary to that of the domicil of the deceased, the distribution would be governed by the law of the domicil. There appears to have been no creditors of the estate of Mackey in the District of Columbia, and letters of administration were obtained here, as necessary under the decision of the Treasury Department. This object being accomplished, and the costs of the administration paid, Raines, as agent of the administrators of the domicil, receipted for the money in their behalf, under the power of attorney from the administrators. And the question arises, whether this discharges the defendant as surety on the administration bond of Raines. Under the power of attorney he was authorized to receive all moneys that may be due the estate of Mackey from the Treasurer of the United States, and receipt for the same. He received and receipted for the money as administrator in this District, and then executed a receipt to himself as agent, under the power of attorney as agent for the administrators. Under the circumstances, it would be a hardship fraught with injustice, to hold the defendant liable as surety on the administration bond. Raines was the confidential agent of the administrators of Mackey-the money was placed in his hands, under full authority to receive it. It has never been paid over, it is said, by reason of the bursting of a boiler, by which Raines lost his life and the money which he had received. But whether this be true or not, the money went into the hands of Raines, who was the agent of the administrators, duly authorized to receive it; and we think, under the peculiar circumstances of the case, the defendant was thereby discharged. Whether for the pay By the 11th section of the Act of 24th of June, 1812, it is provided "that it shall be lawful for any person or persons to whom letters testamentary or of administration hath been or may hereafter be granted, by the proper authority in any of the United States or the territories thereof, to maintain any suit or action, and to prosecute and recover any claim in the District of Columbia, in the same manner as if the letters testamentary or administration had been granted in the District." Under this law the money due to Mackey might have been paid, and, indeed, should have been paid, to Raines, the attorney in fact of the administrators of Mackey. But, through abundant caution, letters of administration were required to be taken out in this District, as a prerequisite to the payment of creditors or distribution among the ment of the money by the Treasury Depart ment. No question could arise as the validity of the Cherokee law under which letters of adminis tration were granted on the estate of Mackey, and as the power of attorney given by the administrators to Raines seems to have been duly authenticated and proved, a payment to the administrator, by the government, would have been a legal payment. The Cherokee country, we think, may be considered a territory of the United States, within the Act of 1812. In no respect can it be considered a foreign state or territory, as it is within our jurisdiction and subject to our laws. Although an executor or administrator cannot sue in a foreign court, in virtue of his orig. inal letters of administration, yet he may law. fully, under that administration, receive a debt voluntarily paid in any other state. Stevens v. Gaylord, 11 Mass., 256. In Doolittle v. Lewis, 7 Johns. Ch., 49, Chancellor Kent held, that a voluntary payment to a foreign executor or administrator was a good discharge of the debt. Shultz v. Pulver, 3 Paige, 182; Hooker Olmstead, 6 Pick., 481. heirs, the domicil of the deceased was the place to which the money should be transmitted. It would add to the conditions of the administration bond, to hold the defendant responsible for the safe transmission of the money, after it was placed in the hands of the agent of the administrators. Had the receipt of Raines been duly filed and acted upon, in the Court of Probate, his surety on his administration bond would have been discharged. The action of the Probate Court only is wanting, but we think such action was not essential, and that the equity of the case is equally clear without it. The parties are estopped from denying the agency of Raines. In Vaughan v. Northup et al., 15 Pet., 6, this court say: "The debts due from the government of the United States have no locality at the seat of government. The United States, in their sovereign capacity, have no particular place of domicil, but possess in contemplation of law an ubiquity throughout the Union; and the debts due by them are not to be treated like the debts of a private debtor, which constitute local assets in his own domicil. On the contrary, the administrator of a creditor of the govThis suit is brought in the name of the sur- ernment, duly appointed in the state where he viving administrators of Mackey and of the dis- I was domiciled at the time of his death, has full authority to receive payment, and give a full discharge of the debt due to his intestate, in any place where the government may choose to pay it." We think there is no error in the ruling of the court, and the judgment of the Circuit Court is, therefore, affirmed. Mr. Justice Nelson and Mr. Justice Curtis stated that they concurred in the decision of the court to affirm the judgment of the Circuit Court, upon the ground that, as no final account had been settled by the administrator in the Orphans' Court, and no order had been made by that court, either directing the administrator to pay the balance in his hands to the principal administrators, for distribution by them, or directing a distribution to be made here, there was no breach of the bond. That this being an ancillary administration, it depended upon the discretion of the Orphans' Court, which granted it, whether the money, remaining in the hands of the ancillary administrator, after the satisfaction of all claims in this jurisdiction, should be distributed here, by the ancillary administrator, or remitted to the principal administrators for distribution; and until that discretion shall be exercised, and the ancillary administrator directed which of these courses to pursue, he is in no default, and his surety is not liable. Cited-11 Wall., 619; 1 Dill., 265, 347; 3 Dill., 401. THE UNITED STATES, Appt8., v. JOHN C. FRÉMONT. (See S. C., 18 How., 30-40.) Practice-failure to file the record-motion to dismiss. It is the duty of the appellants to file the record, and docket the cause, within the first six days of the term, when the decree appealed from has been entered sixty days before the commencement of the term. The appellants having failed to file the record, it was filed by the appellee, which entitles him under the rule, to have the cause dismissed. Where, after decision in this court, the cause is remanded to the District Court, with directions to proceed therein in conformity to the decree of this court, and a decree is entered in the District Court in pursuance of such mandate, no further action being had thereon, there is no ground for an appeal; a procedendo was issued to the District Court. Argued Jan. 15, 1856. Decided Jan. 15, 1856. PPEAL from the District Court of the United States for the Northern District of California. ΑΡ This court having decided this case in the Dec. Term, 1854, sent down the following mandate to the District Court: United States of America, 88: The President of the United States of America. To the Honorable the Judge of the District Court of the United States, for the Northern District of California, greeting: Whereas lately, in the District Court of the United States for the Northern District of California, before you in a cause between the United States, appellants, and John C. Frémont, claimant and appellee, the decree of the said District Court was in the following words, viz.: "This cause coming on to be heard at the above-stated term, on appeal from the final decision of the Commissioners, to ascertain and settle private land claims in the State of California, under the Act of Congress approved March 3d, 1851, upon the transcript of the proceedings and decision, and the papers and evidence on which said decision was founded, and also upon the testimony and depositions taken before this court, and the arguments of counsel for the United States and for the claimant being heard, it is ordered, adjudged and decreed, that the decision of the said Commissioners be in all things reversed and annulled, and that the said claim be held invalid and rejected." As by the inspection of the transcript of the record of the said District Court, which was brought into the Supreme Court of the United States, by virtue of an appeal, agreeably to the Act of Congress in such cases made and provided, fully and at large appears. And whereas, in the present term of December, in the year of our Lord one thousand eight hundred and fifty-four, the said cause came on to be heard before the said Supreme Court, on the said transcript of the record, and was argued by counsel; on consideration whereof, it is the opinion of this court that the claim of the petitioner to the land, as described and set forth in the record, is a good and valid claim. Whereupon it is now ordered, adjudged and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby reversed; and that this cause be. and the same is hereby remanded to the said District Court, for further proceedings to be had therein in conformity to the opinion of this court, March 10. You, therefore, are hereby commanded, that such further proceedings be had in said cause, in conformity to the opinion and decree of this court, as according to right and justice and the laws of the United States ought to be had, the said appeal notwithstanding. The Honorable Roger B. Taney, Chief Justice of the said Supreme Court, the first Monday of December, and the year of our Lord one thousand eight hundred and fifty-four. Wm. Thomas Carroll, Clerk of the Supreme Court of the United States. The above mandate having been filed in the court below, on motion of counsel for Fremont, in the form of the decree in that behalf. excepting the following words: "the said land to be surveyed in the form and divisions prescribed by law, for surveys in California, and in one entire tract," the said court entered a decree upon its record, in pursuance of said motion. Whereupon an appeal was taken to this court in behalf of the United States, from said decree. A further statement of the case appears in the opinion of the court. Mr. C. Cushing, Atty Gen., for the plaint iffs. Messrs. Crittenden and Bibb for the appellee. Mr. Justice McLean delivered the opinion of the court: This is an appeal from the Northern District of California. A final decree was entered in this case at the last term, and a mandate was issued to the District Court, directing such further proceed | trict Court by the mandate. This is an irreg ings in conformity to the opinion and decree ular procedure; and it must have been enof this court, as according to right and justice tered without a particular examination by the and the laws of the United States ought to be court. had. This court reversed the decision of the District Court, and ordered, adjudged and decreed, that the claim of the said John C. Frémont to the land as described, and set forth in the record, is a good and valid claim; and that the said claim be, and the same is hereby confirmed to the extent of ten square leagues, the quantity specified in the original grant, set forth in the record, and within the limits therein mentioned, the said land to be surveyed in the form and divisions prescribed by law for surveys in California, and in one entire tract." The mandate was filed in the District Court, and the counsel of Frémont, moved the court for an order in pursuance of said mandate, in the form of the decree in that behalf elsewhere in the record of the case appearing, excepting the following words, "the said land to be surveyed in the form and divisions prescribed by law, for surveys in California, and in one entire tract," which motion was opposed by the District Attorney of the United States. The District Court entered the decree upon its record, refusing to omit the words, moved by the appellee, and to this refusal his counsel excepted. No further proceedings were had, as appears from the record; and at a subsequent day of the District Court, the Attorney of the United States applied for an appeal in open court, in behalf of the United States, from the final decision of that court, at the above term, which was granted. The appeal was allowed the 23d of July, 1855, more than three months before the commencement of the present term of this court; and no record of the case having been filed within six days, after the commencement of the term, as the rule requires, a record of the case being filed by the appellee, a motion is made to dismiss the appeal on the ground that there was no action of the District Court on which an appeal could be taken. And also on the ground that the appellants have failed to file the record within the rule. It was the duty of the appellants to file the record and docket the cause, within the first six days of the present term; the decree appealed from having been entered sixty days before the commencement of the present term. With the exception of California, Oregon, Washington, New Mexico and Utah, appeals or writs of error allowed, are required to be docketed within the first six days of the term, if entered or allowed, thirty days before its commencement. The appellants having failed to file the record, it was filed by the appellee, which entitles him under the rule to have the cause dis missed. The appeal is dismissed, and the clerk is directed forthwith to certify this decision to to the District Court. Mr. Justice Catron: agree that by the 19th, 30th, 43d, and 63d rules governing the practice of this court, the record presented was not filed in time, and that therefore the appeal must be dismissed for want of prosecution. But I do not concur that, on the present motion to dismiss, we ought to decide the question, whether the District Court could or could not allow the appeal on the decree made there on the ground that the decree did not conform to the mandate of this court. The motion to dismiss for want of prosecution, and the motion to dismiss for want of jurisdiction to entertain the appeal, are different and distinct in their character; the one only dismisses the appeal and allows a second, and the other bars it. The practice has been, when the record was not filed in time, for the defendant in error, or appellee, to produce a certificate from the clerk, or a copy of the record duly certified, showing that the writ of error or appeal had been taken, and that it operated as a supersedeas, when the cause was docketed and dismissed. But when a motion was made to dismiss the cause for want of jurisdiction in this court to entertain the writ of error or appeal; or, in other words, want of authority in the court below to allow it (which is the question here), then the record was ordered to be printed, briefs filed, and the question discussed in the usual way. Nor has it ever occurred in my experience in this court, to set down a cause to be heard at the same time on both motions. The consequence must be in such a proceeding, that if the plaintiff in error is turned out of court for his neglect, in not filing the record in time, he has no power to move for a certiorari to amend the record, filed by the other side, and then this court bars a second appeal by further adjudging that no jurisdiction existed in the inferior court to allow it. And such is the judgment in this case. Some of the most stringent controveries that have come before us, have arisen on motions to dismiss for want for jurisdiction, and especially in causes brought here from state courts under the 25th section of the Judiciary Act. The idea in such cases, that a state court decision should, in effect, be affirmed, and the plaintiff in error barred by dismissing case for want of jurisdiction, on the presentment of a manuscript record, without furnishing the court with even a brief (as was done here), is not only contrary to our established practice, but is calculated to do great mischief to suitors. In the instance before us, I never saw the But the counsel for the appellee insist that papers until after I heard the opinion of the the appeal should be dismissed, on the ground majority of the court read. I deemed it unthat it was taken with the intent to bring be- important, on the first question, to read the recfore this court a review of its decree entered at ord, as it had not been filed in time, nor was a the last term. As there was no action by the valid excuse offered for the delay. On the secDistrict Court, except the entry of the mandate ond question, I had then formed no opinion. upon its records, the appeal brings before us In his remarks, the Attorney General referred only that which was transmitted to the Dis-us to a letter of the District Attorney of the United States for the Northern District of California, which was officially written to the Secretary of the Interior, and presented to us, as part of the Attorney-General's argument, setting forth the reasons why the appeal was prosecuted. These reasons, in substance, are, that this court, in its opinion delivered by the Chief Justice at the last term; (17 Howard, 565), remanded the cause, and directed the court below to enter a decree conformably to that opinion; which opinion(Ibid.,558) declared: That if any other person within the limits where the quantity granted to Alvarado should be located, had afterwards obtained a grant by specific boundaries before Alvarado had made his survey, the title of the latter grantee could not be impaired by any subsequent survey for Alvarado; and that as between individual claimants from the government, the title of the party who had obtained a grant for the specific fand would be the superior and better one." And it is insisted, in this argument, that the District Court should have inserted in its decree the foregoing conclusions, and have protected individual titles and rights, in the region of country where Colonel Frémont's claim might be located, ordering that such lands should be excluded from the survey as Frémont's land, although they were embraced within its out boundaries, And secondly, that, in the opinion of this court, the District Court was directed to cause the grant to Alvarado to be surveyed, "in the form and divisions prescribed by law for surveys in California." But that it had made no decree as to the form of the survey, and disregarded the instruction, leaving it to the surveyor to ascertain the law, and to locate the land," "according to the law of California," whether it was Mexican or United States law; whereas, it is insisted that the true construction of the grant to Alvarado (as to the manner in which it shall be surveyed), was a judicial question; and that, as the concession was for the purposes of cultivation and pasturage, a survey should be made of land suited to these purposes, and that the District Court ought so to have adjudged and decreed, and to have excluded a survey of barren mountains, including improved gold mines, contrary to the plain intention of the parties to the grant as originally made. The questions presented were supposed to be of grave importance and much difficulty, and therefore, no imputation of unfair and oppressive conduct should be cast on the officer of the government who prayed this appeal, under the express sanction of the District Court. so. It is manifest that Frémont, the appellee, believed he might appeal, if he saw proper to do He took a bill of exceptions, and had it signed by the court, to its ruling, that his claim should be surveyed in one tract. As no bill of exceptions lies in cases of this description, an appeal could have been prosecuted, on the affirmative fact, that too much had been inserted in the decree, contrary to the mandate of this court; so, on the other hand, if not enough was put into the decree to execute the mandate, an appeal would equally lie. As a general rule, this is undoubted. It is plainly apparent that both parties, and the court, believed that an appeal would lie. I hold it to be true, however, that the appeal should not have been allowed. By the Treaty of Peace with Mexico, the legal title to the public lands in California was vested in the United States, onerated with private claims to parts thereof. Alvarado's claim was presented as one of this character, and being brought before this court, was pronounced to be a good and subsisting claim; and furthermore, that all the conditions it contained were subsequent conditions, which, by the Treaty, ceased to have any binding force; and therefore they were struck from the grant as being no necessary part thereof. It was also held that the claim, in this condition, was assignable, and properly assigned to Colonel Frémont; and as there was no grant to any specific tract of land, that Colonel Frémont held a common interest in the public lands generally, lying within a large section of country described in the grant. This decision reduced the claim to the condition of a mere floating land warrant, that could not be located by judicial authority, more than an ordinary floating warrant can be located by the decree of a court; and therefore, when seeking location, it must, of necessity, address itself to the executive or legislative power. The District Court, having entered the decree as directed, had no jurisdiction to take any further step in the cause. It follows that the Executive Department must determine for itself whether any law exists authorizing that branch of the government to ascertain and survey the land, and issue a patent for it, by which the title of the United States will be devested, and transferred to the grantee. A power to a trustee to sell at public auction, after notice, includes the power to adjourn the sale to a different time and place, when he thinks it necessary to obtain a fair price. The creditor for whose benefit the sale is made, may, through the trustee, request the auctioneer to bid a certain sum for him, and the latter may do so. This will not make the sale void, though the property be struck off to the creditor on that bid, it being the highest. payment out of the sale before another note speciA covenant that the note shall be entitled to fied, and shall have a prior lien, does not impose a liability on the covenantor that the note shall be paid out of the sale. NOTE.-Transfer of bills and notes by delivery or See note to Pease v. Dwight, 6 How., 190. assignment. Obligation of assignor or transferer. |