Suppose the new Act applies to the case before the court, which is not admitted, still it is clear that it would not supersede the defense arising under the prior Act, as four months re mained during which the plaintiff might have withdrawn the goods for consumption without being subjected to any additional duty under the prior Act, and for the further reason, that the prior Act is not repealed by the new Act under which the plaintiffs claim, nor is the provision of the new Act repugnant to that of the prior Act. Nothing like inconsistency appears in the provisions of the two Acts at the passage of the latter, as applied to the case before the court, as the plaintiffs might under either Act have withdrawn their goods deposited in the public warehouse at any time within four months subsequent to the passage of the new Act, on payment of the duties and charges finally liquidated by the Collector, and noted by the appraiser on the withdrawal entry.

Authorities to show that there must be a positive repugnancy between the provisions of the new law and the old, to work a repeal of the old law by implication, and that even then the old law is only repealed to the extent of the repugnancy, are very numerous and decisive. Wood v. U. S., 16 Pet., 342.

Repeal by implication, upon the ground that the subsequent provision upon the same subject is repugnant to the prior law, is not favored in any case, and must always meet with disfavor where the attempt is made to apply the principle in the construction of the Reve nue Laws of the United States.

Acts of Congress of the kind are often very complex in their provisions, in order to enable those charged with their execution to protect the Treasury against the constant attempts of importers to evade the payment of new duties or increased taxation. New regulations often become necessary to enable the officers of the customs to defeat such designs; and the rule is, that in such cases there ought to be a manifest and irreconcilable repugnancy to warrant the conclusion that the old law is abrogated, or that the new law was intended to supersede the antecedent provision. Aldridge v. Williams, 3 How., 9; The Distilled Spirits, 11 Wall., 356 [78 U. S., XX., 167].

Concede the theory of the plaintiffs to be correct, and it would follow that the sugars imported by the plaintiffs might remain in the public warehouse for an indefinite period with out paying the liquidated duties, and without subjecting the importer, owner or consignee to any additional charge when he should with draw the same for consumption. Congress, it is believed, never intended that any such result should follow, as it would be contrary to the policy of the government, as shown in all the Acts of Congress establishing and regulating the warehousing system.

Authority to warehouse certain imported goods was granted by Congress at a very early period in our history. 1 Stat. at L., 673. Option was given to the importers of teas, by the 62d section of the original Collection Act, either to secure the duties, as in case of other importations, or to give bond to the collector of the district where the teas were landed in double the amount of the duties, with condition for the payment of the same in two years from the date

of the bond. Whenever the importer elected to give the bond, the requirement was that the goods should be deposited, at the expense of the importer, in one or more storehouses therein described. Regulations to the same effect were subsequently enacted in respect to the importation of wines and distilled spirits. 2 Stat at L., 469. Duties under that Act were to be paid in twelve calendar months from the date of the bond, and the collector was required to accept the bond without surety.

Corresponding regulations were made at a later period in respect to wool and the manufactures of wool, or manufactures of which wool was a component part. 4 Stat. at L., 591. Imported goods of the kind might be placed in public stores under bond, subject to the payment of customary storage and charges, and to the payment of interest at the rate of six per cent. per annum while so stored; and the provision was, that the duties on the articles so stored should be paid, one half in three months and the other half in six months from the date of importation.

Duties of import were required by the subsequent Tariff Act to be paid in cash; and it was provided, in case of failure to pay the duties as required, that the collector should take possession of the same, and that the goods should be deposited in the public stores, there to be kept with due and reasonable care, at the charge and risk of the owner, importer, consignee, or agent. Goods of the kind might remain in public store for sixty days; but, if they remained beyond that period without payment of the duties, they were required to be appraised and sold by the collector. 5 Stat. at L., 562. Throughout those provisions, the plain inference is that Congress did not regard the importation as complete while the goods remained in the custody of the proper officers of the customs.

At a still later period, Congress passed the Act to establish a warehousing system, in which it is provided that, in case any goods, wares, or merchandise deposited in public stores shall remain in the same beyond one year without payment of the duties and charges thereon, the same shall be appraised *** and sold by the collector at public auction, under the regulations therein prescribed. 9 Stat. at L., 53, 399.

Alterations were made in the warehousing system by a subsequent Act, which provided that goods remaining in warehouse, and goods subsequently entered for warehousing under bond, may continue in warehouse, without the payment of the duties, for a period of three years from the date of the importation, and that the same may be withdrawn for consumption on payment of the duties and charges. 10 Stat. at L., 271.

Increased revenue being required, Congress passed the Act of the 5th of August, 1861, the 5th section of which enacted that goods actually on shipboard and bound to the United States, and all goods on deposit in warehouses and public stores at the passage of that Act, shall be subject to pay such duties as were provided by law before and at the time of the passage of the Act. 12 Stat. at L., 293.

Provision was also made by the same section that goods deposited in public store or bonded warehouse after the Act should take effect and go into operation, if designed for consumption

here, must be withdrawn therefrom, or the duties thereon be paid, in three months after the same are deposited; and that goods designed for exportation and consumption in foreign countries may be withdrawn by the owner at any time before the expiration of three years after the same are deposited; such goods, if not withdrawn in three years, to be regarded as abandoned to the government, and to be disposed of as therein provided.

Three months were allowed to owners, within which to withdraw their goods from the public store or warehouse, or to pay the liquidated du

ties; but the further provision was, that if they neglect to improve that privilege within three months from the time of the deposit, the goods may be withdrawn and entered for consumption at any time within two years of the time of their deposit, upon the payment of the legal duties, with an addition of twenty-five per cent. thereon. Events beyond control made it necessary in that period that taxes should follow taxes in rapid succession; but it cannot be admitted that the taxes were any the less obligatory because the exactions were more frequent and at higher rates than in former years. None of these regulations amounted to a contract between the government and the importer, and of course they were at all times subject to modification, alteration or repeal; but they show to a demonstration that it never was the policy of Congress to allow the owner, importer or consignee to deposit imported goods in the public stores or warehouses without the payment of duties for an indefinite period of time, or for any great length of time, without requiring the depositor, when he withdrew the same for consumption, to pay an additional duty for the privilege.

Four months, less three days, of the year allowed by the prior Act remained in which the goods might be withdrawn for consumption on payment of the liquidated duties and charges, without being subjected to any additional exaction, which gave full scope and opportunity for the corresponding privilege conferred by the 26th section of the subsequent Act. 14 Stat. at L., 8; 16 Stat. at L., 269.

Examined, as the question should be, in the light of these suggestions and the antecedent legislation of Congress, it is clear that the new law supposed to be applicable to the case is not repugnant to the prior law, and that there is no error in the record. Judgment affirmed.

JOHN C. BATES ET AL., Plffs. in Err.,

D.

W. N. BELMONT CLARK ET AL.
(See S. C., 5 Otto, 204-210.)

Indian country-seizing liquors-damages. 1. All the country described by the 1st section of the Act of June 30, 1834, 4 Stat. at L., 729, as Indian country, remains Indian country so long as the Indians retain their title to the soil, and ceases to be Indian country whenever they lose their title, in the absence of any different provision, by treaty or by Act of Congress.

*Head notes by Mr. Justice MILLER.

| 2. Whatever may be the rule in time of war and in the presence of actual hostilities, military offcers can no more protect themselves in time of peace than civilians, for wrongs committed under orders emanating from a source which is itself without authority in the premises. Hence a military officer, seizing liquors supposed to be in Indian country when they are not, is liable to an action as a trespasser.

3. The difference between the value of the goods the place where they were returned to the owners, so seized, at the place where they were taken and is the proper measure of damages. [No. 93.]

Submitted Nov. 15, 1877. Decided Dec. 3, 1877.

IN

ERROR to the Supreme Court of the Ter

ritory of Dakota.

The case is stated by the court.

Mr. Edwin B. Smith, Asst. Atty-Gen., for plaintiffs in error.

Mr. John B. Sanborn, for defendants in error, cited, on the question of damages:

2 Greenl. Ev., Redf. ed., 1868, 550, and notes and authorities there cited; Sedg. Dam., 5th ed. 615, note 1 and authorities; Hanmer v. Wilsey, 17 Wend., 91; Otis v. Jones, 21 Wend., 394; Tiffany v. Lord, 65 N. Y., 310; Farrar v. Barton, 5 Mass., 395; Prescott v. Wright, 6 Mass., 20; Stewart v. Martin, 16 Vt., 397.

Mr. Justice Miller delivered the opinion of the court:

The plaintiff in error, Bates, was a captain in the Army of the United States, in command at Fort Seward, in the Territory of Dakota, near the crossing of the James River by the North Pacific Railroad; and the other plaintiff in error was a lieutenant under him at the time of the commission of the trespass for which the judgment in this case was recovered against them. The defendants in error, plaintiffs below, were doing a general mercantile business on the James River, also near said crossing, when a lot of whisky, part of their stock of goods, was seized by defendants. They brought this action to recover damages for the trespass. The defendants pleaded their official character, that the place where the seizure was made was Indian country, and it was, therefore, their duty to seize the whisky which was kept there for purpose of sale, and that, in accordance with the Acts of Congress on that subject, they had delivered the whisky to the Marshal of the United States, under a writ from the proper court, on a proceeding instituted by the United States attorney for that district. They further pleaded that, before the commencement of this action, the goods had been delivered to plaintiffs by the Marshal, and that plaintiffs had suffered no damage. They also set up an order of the Commanding Officer of the Department of Dakota.

The Act of June 30, 1834, entitled "An Act to Regulate Trade and Intercourse with the Indian Tribes and to Preserve Peace on the Frontier," which is a very long and important Act, begins by describing in its first section the country or territory in which that Act shall be operative. It is in these words:

"Be it enacted, That all that part of the United States west of the Mississippi, and not within the States of Missouri and Louisiana, or the Territory of Arkansas, and also that part of the United States east of the Mississippi River, and

not within any State to which the Indian title has not been extinguished, for the purposes of this Act, be taken and deemed Indian country." 4 Stat. at L., 729.

The 20th section of that Act forbids the in troduction of wines or spirituous liquors with in this Territory. By the Act of 1864, amending this section, it is made lawful for any In dian agent or commanding officer of a military post, who has reason to suspect that spirituous liquors or wines have been or are about to be introduced into Indian country in violation of law, to search for and seize the same, to be delivered over to the proper officer, and proceeded against by libel in the proper court, and for feited, one half to the informer and the other half to the use of the United States. 13 Stat. at L., 29.

If this whisky was seized in Indian country, within the meaning of the Act of 1834, and the amendment of 1864, the plea which set up that the defendants acted in good faith under that statute ought to be sustained. This, the principal question in the case, is raised by the action of the court below in striking out the plea which set up these defenses as sham and frivolous, and because the locus in quo was not Indian country. This mode of disposing of a plea which fairly raises a most important issue of law seems to be growing in favor in the territorial courts. It is an unscientific and unprofessional mode of raising and deciding a pure issue of law. This should always be done, when it can, by a demurrer, which is the recognized and appropriate mode in the common law; or by exception, which amounts to the same thing in the civil law, as it is applied to answers in chancery practice. A motion to strike out a plea is properly made when it has been filed irregularly, is not sworn to-if that is required or wants signature or counsel, or any defect of that character; but if a real and im portant issue of law is to be made, that issue should be raised by demurrer.

In the present case, this is unimportant, as the same question is presented by the prayer for instructions and by the charge of the court.

What, then, is Indian country, within the meaning of the Acts of Congress regulating intercourse with the Indians?

The first Act of Congress on the subject is that of March 30, 1802. 2 Stat. at L., 139. The 1st section of that Act describes a boundary, the description occupying over a page of the statute-book, and declares that this shall be dis tinctly marked under orders of the President, and considered as the line of the Indian territory, or Indian country as is called indifferently in several sections of the Act. The country west of the Mississippi then belonged to France or Spain. The boundary above mentioned, commencing at the mouth of the Cuyahoga River, on Lake Erie, now Cleveland, runs in a wonderfully tortuous course through the country northwest of the Ohio River to the falls of that river, now Louisville, then down that river to a point between the mouths of the Cumberland and Tennessee Rivers, and thence through Kentucky, Tennessee and Georgia, to the St. Mary's River, pursuing all the way the lines represented by Treaties with various Indian Tribes.

Though many statutes concerning intercourse

with the Indians and prescribing offenses within the Indian country were passed, no other attempt to define what was Indian country was made by Congress until the Act of 1834, the 1st section of which we have given verbatim. In the meantime, we had purchased the country west of the Mississippi, and had organized two States and a Territory there, and most of the Indians with whom we had to deal lived there. The country east of the Mississippi, and not within any State, was the region north of Illinois and Indiana, and northwest of Ohio, now constituting the States of Michigan and Wisconsin, and then under the government of the Michigan Territory.

Notwithstanding the immense changes which have since taken place in the vast region cov ered by the Act of 1834, by the extinguishment of Indian titles, the creation of States and the formation of territorial governments, Congress has not thought it necessary to make any new definition of Indian country. Yet during all this time a large body of laws has been in existence, whose operation was confined to the Indian country, whatever that may be. And men have been punished by death, by fine, and by impris onment, of which the courts who so punished them had no jurisdiction, if the offenses were not committed in the Indian country as estab lished by law. These facts afford the strongest presumption that the Congress of the United States, and the judges who administered those laws, must have found in the definition of Indian country, in the Act of 1834, such an adaptability to the altered circumstances of what was then Indian country as to enable them to ascertain what it was at any time since then.

If the section which we have given verbatim be read with a comma or semicolon inserted after the word "State," or if, without the insertion of any point there, we read it so as to apply the words, to which the Indian title has not been extinguished," to all the region mentioned in the section, we have a criterion which will always distinguish what is Indian country from what is not, so long as the existing system governing our relations with Indians is continued. Read hastily, it might appear that these words were limited in their application to that part of the United States east of the Mississippi River. But a strict reading in that sense is that it is the State to which the Indian title has not been extinguished that governs the matter. "And not within any State to which the Indian title has not been extinguished," implies that Indians had title to some State then in existence, and that there were other States to which their title had been extinguished. This meaning is too absurd to be considered.

On the other hand, if the section be read as describing lands west of the Mississippi, outside of the States of Louisiana and Missouri, and of the Territory of Arkansas, and lands east of the Mississippi not included in any State, but lands alone to which the Indian title has not been extinguished, we have a description of the Indian country which was good then, and which is good now, and which is capable of easy application at any time.

The simple criterion is, that, as to all the lands thus described, it was Indian country whenever the Indian title had not been extinguished, and

Mr. Justice Clifford delivered the opinion of the court:

Policies of fire insurance are contracts whereby the insurers undertake for a stipulated sum to indemnify the insured against loss or damage by fire, in respect to the property covered by the policy, during the prescribed period of time, to an amount not exceeding the sum specified in the written contract. Ang.F. and L. Ìns., 43. Insurance was effected by the plaintiffs, on the 9th of May, 1870, in the Company of the Corporation defendant for the term of one year, against loss or damage by fire, to the amount of $3,000, covering the ten buildings therein described, each of which being insured in the sum of $300.

It appears by the bill of exceptions that the policy was in the usual form of policies issued by the defendant, and that it provided that "If the interest of the insured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, or if the buildings insured stand on leased ground, it must be so represented to the Company, and be so expressed in the written part of the policy; otherwise the policy shall be void."

Two other stipulations are contained in the policy, which it is important to notice: (1) That "The use of general terms, or anything less than a distinct specific agreement clearly expressed and indorsed on the policy, shall not be construed as a waiver of any printed or written condition or restriction therein." (2) That the policy is made and accepted in reference to the foregoing terms and conditions, which are de clared to be a part of the contract, and may be used and resorted to in order to determine the rights and obligations of the parties to the policy.

Nothing was expressed in the written part of the policy indicating or tending to indicate that the interest of the insured in the property purporting to be insured was any other than the entire, unconditional and sole ownership of such property for the use and benefit of the insured, or indicating or tending to indicate that the buildings insured stood on leased ground.

Payment of the alleged loss being refused, the plaintiffs instituted the present suit in the state court, which was subsequently removed into the circuit court of the same district, the parties agreeing that the plaintiffs might prove any claim they have under the common counts as if they should add special counts, and that the defendant might prove any defense it has to the action under the general issue the same as if it was set up in a special plea.

Pursuant to that stipulation, the parties went to trial; and the verdict and judgment were for the plaintiffs in the sum of $3,730 damages, with costs of suit. Exceptions were taken by the defendant to the charge of the court; and it sued out a writ of error, and removed the

cause into this court.

by the bill of exceptions. Proofs were introduced by the plaintiffs, admitted by the defendant to be in due form, which showed that the buildings described in the policy were, on December 31, 1870, destroyed by fire, and that the property insured belonged to the plaintiffs, subject to the lease mentioned in the proofs so introduced, to which more particular reference will presently be made. Other evidence was introduced by the plaintiffs, but the defendant offered no evidence; and the court directed the jury to return a verdict in favor of the plaintiffs for the amount of the policy, with interest from the expiration of sixty days subsequent to the time the proof of loss was exhibited.

Seasonable exceptions were filed to the charge of the court, upon the ground that the lease mentioned in the proofs of loss show that the plaintiffs were not at the time of the loss the entire, unconditional and sole owners of the property for their own use and benefit.

Sufficient appears to show that the fee simple title of the land was in the plaintiffs, and that they were the entire owners of the property destroyed, subject to the lease mentioned in the proofs of loss; and it was admitted by the defendant that the fire caused a total loss of the property, and that the value of the buildings exceeded the amount of the insurance.

By the terms of the lease, referred to in the proofs of loss, it appears that the instrument was for a term of ten years, from May 1, 1868, to May 1, 1878, and that it covered the land on which the insured buildings stood, and the buildings and improvements to be built thereon, having been executed before the buildings were erected, at a rental of $3,500 per annum for the first five years, and $5,976 per annum for the second five years.

Ten buildings were to be erected, to cost not less than $24,000; and the lessor was to pay one half of the amount in installments, each installment to be $1,000, and to be paid when the lessee had expended twice that amount in the prosecution of the work. Arrangements of a contingent character are also prescribed in case the lease is continued or determined, and for the basis of adjustment in either event and for payment or repayment as the case may be, which it is not necessary to reproduce in the present case.

Errors assigned, material to be noticed, are as follows: (1) That the court erred in directing the jury to return a verdict in favor of the plaintiffs for the amount of the policy and interest. (2) That the court should have directed the jury to return a verdict the other way, as the law of the case was with the defendant. (3) That the court erred in not submitting the questions of fact to the jury whether the plaintiffs were so far the sole, entire and unconditional owners of the property insured as to be entitled to rerecover in view of the evidence.

Authorities to prove that a fee simple estate is the highest tenure known to the law are quite unnecessary, as the principle is elementary and needs no support; nor is any argument necessary to show that the title of the plaintiffs to the land where the buildings stood was of that character, as that is admitted in the bill of exceptions, which constitutes a part of the rec