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in the plaintiff, assuming its truth; that, in to do so because of the wrongful, fraudulent, the courts of the United States, an action of and unlawful acts of the defendants thereinejectment was based upon the strict legal ti- after mentioned. Those acts were a secret tle, and if the plaintiff failed to show that effacement of the work done by Pilkey, the it was in him, he must fail in such action. taking down of the notice of claim posted on The defendants now contend that, if the the ground by him, the failure to file a copy plaintiff have any remedy, it is at law; and thereof, the posting of a claim on the part of also that there is no cause of action stated the defendants, and the filing of a copy of in the bill. At the time of the trial of this such notice in the recorder's office on Decemsuit, the ejectment action had not been de- ber 13, 1893. cided by this court, the action having been We think the plain import of these averhere decided May 13, 1901. It must be re- ments is that the conspiracy and combination garded as determined by the decision in that did not become known to the plaintiff until case, that the complainant herein has no rem- after the expiration of the ninety days from edy at law, and, if he has none in this suit, the discovery of the mine, in

which he is without remedy for the gross fraud set to file a copy of the notice posted on out in the bill. All facts well pleaded in the the ground, in the recorder's office of bill are admitted by the demurrer, and the the proper county. That is

suffiquestion, therefore, is whether the bill states ciently definite averment of time, and facts sufficient to entitle him to relief in a it is enough to show that the failure to file a court of equity.

copy of the notice within the necessary time The court below has held that the bill does was owing to the action of the defendants. not state with sufficient certainty the time Under the agreement first mentioned be when plaintiff discovered the alleged fraud tween plaintiff, Johnson, and Pilkey, as coset forth in the bill, in that it does not ap- partners, it became the duty of Pilkey, in pear by any certain averment that the plain order to complete the location it was his duty tiff did not discover such fraud before the ex- to make, to file a copy of the notice in the piration of the ninety days after the discov- recorder's office; and the parties to the agreeery of the lode, in which to file a copy of the ment had the right to rely upon Pilkey to file notice of location in the recorder's office, the necessary copy for record; and it is plain which, if he had done, he might, by himself that the failure to file on the part of the filing the copy, have thereby fulfilled all the plaintiff was because of his ignorance of such provisions of the statute relating to the loca- failure on the part of Pilkey, consequent uption and recording of the notice of claim. on Pilkey's fraudulent conspiracy and agreeWe entirely agree with the court below that ment with the other defendants not to file it. the facts constituting the cause of action in After the discovery of the conspiracy, the equity must be distinctly alleged, so that the plaintiff did procure a copy of the original defendant may know what he has to meet, notice posted by Pilkey on the ground, and and so that he may, if he choose, put them in filed the same in the office of the recorder on the issue. The rule must receive a reason the 9th of December, 1893. Taking these alable interpretation, and must be so enforced legations together, we think it hypercritical as to further, and not obstruct, the adminis- to hold that the bill does not, with sufficient tration of justice. We think the court be- distinctness, allege the fact that the plaintiff low erred in holding that there was no suffi- did not discover the fraud until after the excient averment as to the time of the discov- piration of the ninety days mentioned, and ery by plaintiff of the alleged fraud set forth hence did not himself file the copy of the noin the bill, assuming such averment to have tice within that time. been necessary. He averred that Pilkey, act- All pleadings must be construed reasoning under the agreement with plaintiff and ably, and not with such strictness as to reJohnson, discovered the mine, and located fuse to adopt the natural construction of the same by posting the requisite notice on the pleading because a particular fact might. the ground on the 10th of July, 1893. He have been more distinctly alleged, although also averred that some time about the 1st of its existence is fairly, naturally, and reasonOctober (the exact time, however, he could ably to be presumed from the averments. not state) the defendants entered into the made in the pleading. conspiracy and combination referred to. This The agreement between the plaintiff, Pilwas but a few days before the expiration of key, and Johnson shows it to have been the the statutory time in which to file a copy of duty of Pilkey to make the necessary filing the notice of claim in the recorder's office of for record, in order to complete the location. the county. He averred that the conspiracy of the mine, which he, in the agreement, was and combination was secret, and that, while to do. The plaintiff had the right to rely the plaintiff and his copartner Johnson were upon Pilkey carrying out that agreement, able and willing to comply with all the laws and fulfilling his duty thereunder by making of the United States and territory, they failed 'the necessary filing; and plaintiff alleges

. that he would have done all things made nec-| Eliot Nat. Bank, 96 U. S. 611, 24 L. ed. 855; essary by law had it not been for this fraud-Georgia v. Stanton, 6 Wall. 50, 18 L. ed. 721, ulent combination and conspiracy on the are not opposed to the views just stated. part of the defendants. We regard the alle- We agree that the relief granted under the gations of the bill as sufficient in these par- prayer for general relief must be agreeable ticulars.

to the case made by the bill; and that, in Again, it is alleged that the bill prays that substance, is what is held by the above cases. the location of what is called the Washing. The case made by the bill consists of the maton lode by the defendants be declared void, terial facts therein stated; and where all the and that the plaintiff may have the possession facts are stated, it is no reason for denying of the claim; while the plaintiff now asks relief under a general prayer, because it may to have the defendants treated as construc- differ from the theory of the law upon which tive trustees, etc., which is inconsistent, as the special prayer for relief is based, where alleged, with the former prayer for relief. both prayers are based upon the same facts, The bill contains a prayer for general relief clearly set forth in the bill. in addition to the prayer for special relief, The defendants contend that, if Pilkey, unand under such prayer this relief may be der the fraudulent agreement alleged, and given. It is objected that, under the prayer pursuant thereto, surrendered possession to for general relief, no relief of that nature the defendants, the latter became cotenants can be granted, inasmuch as it is opposed to with the plaintiff, and he could maintain an the special relief asked for by the bill, and action at law to recover possession from his also because the general allegations in the cotenants. We have already held that the bill do not justify such relief. All the facts plaintiff could not, upon the facts, maintain upon which the plaintiff seeks relief from a ejectment. When Pilkey surrendered poscourt of equity are clearly stated in the bill. session to defendants unde this fraudulent The facts constituting the fraud are set agreement, and they entered and posted the forth, and it is alleged that the parties doing notice and filed the copy, they did not enable the acts mentioned concealed them from the plaintiff to maintain ejectment against them plaintiff for the purpose of defrauding plain- as upon his ouster of possession by defend. tiff out of his interest and ownership in the ants. mine. Having set out all the facts upon Neither plaintiff nor Johnson had ever had which the right to relief is based, the plain- anything but

but a constructive possession tiff asks specially for the possession, and also through the possession of Pilkey; and when for the proceeds, of the mine, because, by rea- he fraudulently surrendered it to the other son of the facts, the location made by the de- defendants, and they entered and completed fendants was a void location. Whether it their location, the plaintiff could not then was a void location or not was matter of law, sustain ejectment, as we have already held. arising from the facts appearing in the bill. This is not in opposition to the case of ErThose facts were not changed in the slightest hardt v. Boaro, 113 U. S. 528, 28 L. ed. 1113, degree, nor were any inconsistent facts set up 5 Sup. Ct. Rep. 560. The question whether thereafter. The plaintiff now, under his the relief should be at law or in equity was prayer for general relief, contends that, al- not there raised. The action was commenced though the location of the Washington lode in Colorado, and was in accordance with the by the defendants may have been so far valid usual form in actions for mining claims unas to create a title in the defendants, yet der the procedure in Colorado, and was that, by reason of the fraud already distinct brought to recover possession of a mine. ly set forth in the bill, the plaintiff was en- There was no discussion as to the forum. titled to avail himself of that title, and to the complaint simply followed the usual hold them as trustees ex maleficio, for his practice. Here we have already held, in benefit.

the ejectment suit (181 U. S. 516, 45 L. ed. There is nothing in the intricacy of equity 979, 21 Sup. Ct. Rep. 665), that the relief is pleading that prevents the plaintiff from ob- not to be had by ejectment, but must be obtaining the relief under the general prayer, tained in equity if at all. Under the circumto which he may be entitled upon the facts stances we think it immaterial whether Pilplainly scated in the bill. There is no reason key surrendered possession before or after for denying his right to relief, if the plain the expiration of ninety days from the distiff is otherwise entitled to it, simply because covery of the mine, July 10, 1893. All the it is asked under the prayer for general reacts of fraud set up in the bill, committed by lief, and upon a somewhat different theory the defendants, are, if proved, sufficient to enfrom that which is advanced under one of the title the plaintiff to treat them as trustees special prayers. The cases of English v. Fox- eac maleficio, and to recover from them, as ali, 2 Pet. 595, 7 L. ed. 531; Boone v. Chiles, such trustees, all the materials taken from 10 Pet. 177, 9 L. ed. 388; Hobson v. M'Ar- the mine. See Saunders v. Mackey, 5 Mont. {hur, 16 Pet. 182, 10 L. ed. 930; Hayward v.523, 6 Pac. 361; Doherty v. Morris, 11 Colo.


12, 16 Pac. 911. Upon the case made by the under the provisions of the act of March 3, bill, some of the defendants being insolvent, 1891, entitled "An act to Provide for the Adwe think the plaintiff entitled to an injunc- judication and Payment of Claims Arising tion restraining the defendants from further from Indian Depredations.” 26 Stat. at L. mining during the pendency of the suit; an851, chap. 538, U. S. Comp. Stat. 1901, p. injunction to issue upon such security as 758. On February 5, 1902, the Assistant Atmay seem appropriate to the court below. torney General of the United States an

We decide this case solely upon the ques-swered the allegations of the petition by a tions raised by the demurrer.

general denial. On November 4, 1902, the The judgments of the Supreme Court of claimant filed a motion for leave to file an New Mexico and of the trial court must be amended petition, charging the depredation reversed, and the case remanded to the Su- to have been committed by the Kiowa Inpreme Court, with directions to remand it to dians, which motion was allowed, and upon the District Court for the Second Judicial the same day the amended petition was filed. District of the Territory of New Mexico, On November 5, 1902, the Assistant Attorney within and for the county of Bernalillo, with General, appearing on behalf of the United directions to overrule the defendants' demur- States and the Kiowa Indians, filed a plea to rer, and with leave to answer upon such the amended petition, setting up that no acterms as may seem proper to that court. tion had been commenced against the Kiowa So ordered.

Indians within three years after the passage of the act of March 3, 1891. On November

11, 1902, this plea in bar was overruled, and, (195 U. S. 469)

upon the general issue being pleaded and trial UNITED STATES and the Kiowa Indians, had, the court found as a matter of fact: Appts.,

At the time of the depredation the claimant's

decedent was a citizen of the United States. JUAN B. MARTINEZ, Administrator of In June, 1873, in Mora county, New Mexico, Julio Martinez, Deceased.

Indians belonging to the Kiowa tribe took

and drove away property of the kind and Pleadingamendment in Indian depredation character described in the petition, the propcases-limitation.

erty of claimant's decedent, which was rea

sonably worth the sum of $690. At the time A petition in an action under the Indian depre- of said depredation defendant Indians were

dation act of March 3, 1891 (26 Stat. at L. in amity with the United States. 851, chap. 538, U. S. Comp. Stat. 1901, As a conclusion of law, the majority of the p. 758), in which the wrong was alleged to court decided that the claimant recover a have been committed by a particular Indian judgment against the United States and the tribe, cannot be amended after the three Kiowa Indians, in the sum of $690. years' limitation prescribed by that act has expired, by stating another and different The defendants appealed to this court. tribe as the wrongdoer, since it is manifestly intended by the statute, taken as a whole, Mr. Lincoln B. Smith, by special leave, that the tribe by whom the depredation was and Assistant Attorney General Thompson committed shall be joined in the petition where it can be identified, though it does not for appellants. in terms provide for service of process upon

Mr. William H. Robeson for appellee. such tribe.

Mr. Justice Day delivered the opinion of [No. 15.]

the court:

This claim arises under the Indian depreArgued October 21, 24, 1904. Decided De-dation act of March 3, 1891 (26 Stat. at L. cember 5, 1904.

851, chap. 538, U. S. Comp. Stat. 1901, p.

758), and presents the question whether, PPEAL from the Court of Claims to re- after the expiration of three years from the

view an award of damages in an action filing of the petition in the court of claims, under the Indian depredation act. Reversed a tribe of Indians not originally named in with directions to dismiss the petition. the petition can be brought into the action

by amended petition, with a view to proStatement by Mr. Justice Day:

ceeding against such tribe to judgment. The This action was brought in the court of record discloses that the original petition claims on October 24, 1891, to recover dam- was filed on October 24, 1891; the amended ages against the United States and the Ute petition on November 4, 1902. The Attortribe of Indians, in the sum of $1,400, the ney General filed a plea setting up the bar value of certain sheep alleged to have been of the statute, which plea was overruled, taken and destroyed or used in June, 1873, and thereafter, upon issue joined and testiby the said Indians. The petition was filed mony taken, judgment was rendered against


the tribe of Indians so brought in by the and defend for both the interests of the govamended petition.

ernment and the Indians, and giving to The act in question was before this court any Indian or Indians interested in the proin United States v. Gorham, 165 U. S. 316, ceedings the right to appear and defend by 41 L. ed. 729, 17 Sup. Ct. Rep. 382, and in an attorney employed with the approval of that case it was held that, where the In the Commissioner of Indian Affairs. By dian tribe cannot be identified, a judgment the 6th section the amount of the judgment for the amount of the claim can be ren- is charged against the tribe by which or the dered against the United States. In the members of which the depredation was comopinion of the court in that case, the actmitted; and if no annuity, fund, or approwas analyzed and its various sections con- priation is available as provided, the judgstrued; and it only remains to consider so ment is to be paid from the treasury of the much of the act and its purposes as will lead United States, to remain a charge against to a solution of the question now under the tribe, and to be deducted from any anconsideration.

nuity, fund, or appropriation thereafter due The provisions of the 1st section of the from the United States to such tribe. It act are positive,—that all claims existing is contended that, inasmuch as the Indian at the time of the taking effect of the act tribes are not necessary parties to the proshall be presented to the court by petition, ceeding, and are not required to be served as therein provided, within three years aft- with process except so far as the notice to er the passage of the act, or be forever the Attorney General is such service, and barred. This section, by itself considered, are only to be described “as near as may be,” would seem to conclude the right of the pe- they may be brought in at any time before titioner to bring in a new party to the pro-judgment, whenever such tribe "can be idenceeding after the expiration of three years, tified,” as set forth in the 5th section of the in such wise as to preclude the right to rely act. The reasons for this conclusion are upon the bar of the statute. For obvious fully set forth in the opinion of the court reasons, a party brought into court by an of claims in Duran v. United States, 31 Ct. amendment, and who has, for the first time, Cl. 353. But we are unable to concur in an opportunity to make defense to the ac- the conclusions therein reached.

In our tion, has a right to treat the proceeding, view, the act provides for a recovery of as to him, as commenced by the process depredation claims in two classes of cases: which brings him into court. Miller v. the one where the persons, classes of perM’Intyre, 6 Pet. 61, 8 L. ed. 320. Conced- sons, tribe or tribes or band of Indians caning this proposition as applied to ordinary not be identified, in which event the United actions, it is urged that this proceeding is States may be held liable, upon proof com80 peculiar in character as to take it out plying with other terms of the act, though of the general rule. Section 3 of the act failing to identify the particular depredaprovides :

tors; the other, where the persons or tribe “That all claims shall be presented to the described in the act can be identified, in court by petition, setting forth in ordinary which event they must be named in the peand concise language, without unnecessary tition, and the judgment will go against the repetition, the facts upon which such claims United States and the tribe committing the are based, the persons, classes of persons, wrong, to be satisfied primarily out of the tribe or tribes or band of Indians by whom funds of the Indians. As was said in the the alleged illegal acts were committed, as Gorham Case, 165 U. S. 321, 41 L. ed. 731, near as may be, the property lost or de 17 Sup. Ct. Rep. 384: It may be fairly stroyed and the value thereof, and any other claimed that, reading all the provisions tofacts connected with the transactions, and gether, the act makes it necessary, when material to the proper adjudication of the known, to join with the United States the case involved."

Indians or tribe of Indians by whom the ilThe 5th section of the statute provides : legal acts are alleged or are supposed to

"That the court shall determine, in each have been committed.” case, the value of the property taken or de- Whichever form the action takes, it must stroyed at the time and place of the loss or be brought within three years after the pasdestruction, and, if possible, the tribe of sage of the act, as provided by the 1st Indians or other persons by whom the wrong section. In requiring the band or tribe of was committed, and shall render judgment Indians to be described as near as may be, it in favor of the claimant or claimants against is the purpose of the act to require such the United States, and against the tribe of tribe, primarily liable for the injury, to be Indians committing the wrong, when such brought before the court, when they can be can be identified."

identified, for the purpose of the judgment Section 4 provides for service upon the authorized in the 5th section. All the secAttorney General, whose duty it is to appear'tions are to be read together to effectuate the purpose of the law; and when the tribe requisite of a good plea, and furnish the "can be identified,” it must be described as name of the party to be impleaded. It was near as may be; that is, with reasonable for the plaintiff to make such investigation accuracy, sufficiently identifying the party as would warrant the beginning of the ao for the purposes of the action and judgment, tion against the proper tribe, or against the resorting to the liability of the United United States alone, averring that the parStates alone only in cases where the offend- ticular tribe could not be identified. ing parties cannot be identified. The claim- It is further insisted that it is the purpose ant, under the statute, has three years for of the act, as provided for in the 5th section, the purpose of investigating his cause of to require the judgment to be rendered action, and, in cases where it can be done, against the Indian tribe, if it can be identiidentifying the tribe sufficiently for the pur-fied, at any time before judgment, and that poses of pleading and judgment against both this construction is required to protect the the United States and the Indian tribe, or, interests of the United States. But we think in the alternative, proceeding against the this section should be read in connection with United States alone. It is true that the the other sections of the act, and the maniact does not, in terms, provide for service fest purpose is to join in the petition, when upon the Indian tribes, their agents or at- it can be identified, the tribe by whom the torneys, and the Attorney General is re- depredation was committed, and to limit quired to appear for them as well as for the the presentation of the claim to three years United States. Of this provision, Mr. Jus- from the passage of the act. If this be not tice Peckham, speaking for the court in the so, the Indians may be made parties to the Gorham Case, 165 U. S. 321, 41 L. ed. 731, proceeding and judgment without being 17 Sup. Ct. Rep. 384, said: "Although the brought into court in any manner until 4th section provides for the defense of the years after the alleged wrong was commitclaim by the law officer of the government, ted, and when it may be impossible, by reaunder any circumstances, yet, as the in- son of the lapse of time, or the death or disterest of the Indians is embraced in the in- appearance of witnesses, to make adequate quiry before the court because of their lia- defense. The construction herein put upon bility to a judgment against them if iden- the statute will give to the three years' limtified, and to a payment of that judgment itation the effect of other statutes of limiout of the annuities or otherwise, as pro- tation, and will, in our judgment, best efvided for in the 6th section, it is proper to fectuate the purpose of the act. This act allow them to appear, and defend also by is extremely liberal in permitting presentatheir own attorney." When brought into tion of claims for Indian depredations. All court they may give, by special counsel, limitations are swept away except the remore careful attention to their particular quirement as to the time of filing the peti. defense than could be given by the law offi- tion. In the present case the depredation is cer of the government charged with the de- alleged to have been committed eighteen fense of thousands of similar claims. But years

25 S. C.-6.

But years before the action was commenced. it is said that the Attorney General, by fail. Under these liberal provisions we think it ing to promptly raise, by plea, the defense was the purpose of the law to require parof misjoinder, is quite as much in fault as ties to be duly prosecuted within the three the petitioner, in permitting more than three years allowed for the filing of petitions; and years to elapse before the new party is the liberality of the act should not be ex. brought in; and it is said that, at the com- tended by construction. As the case was mon law, this objection could only be raised prosecuted against the wrong tribe until by such plea seasonably interposed. At com- after the three years had expired, it cannot mon law, where it was sought to bring in bè maintained against the Indians sought another party jointly liable, a plea by the to be brought in by the amendment, nor can defendant, setting forth the nonjoinder, and it be sustained against the United States, giving the name of such party, was the prop- which is liable by itself only in cases where er method of procedure. 3 Chitty, Pl. [901] the depredating Indians or other persons and notes. But such is not the present case. are unknown. The original petition charged positively that

It follows that the judgment of the Court the depredation was committed by the Ute of Olaims must be reversed and the petition Indians. It was sufficient for the Attor-directed to be dismissed, and it is so or

dered. ney General to plead the general issue to put the plaintiff upon proof of his allegations. It is said that eleven thousand of Mr. Justice White, with whom concurs these cases have been begun; and it is not Mr. Justice McKenna, dissenting: to be presumed that the Attorney General Under the Indian depredation act of would know the facts of each case, and be March 3, 1891, the United States was sued in possession of information to fulfil the ' by one Gorman, in the court of claims, and

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