knowledge of the actual circumstances, agree substantially that the repairs were made as soon as they could be in that port at that time. Witnesses, residing in New York, express the opinion that the repairs might have been executed in much less time, and their testimony undoubtedly is correct as applied to any commercial port in the United States; but the master in this case was obliged to refit his vessel in the port of distress where she was anchored, and it must be assumed that those who wit: nessed his conduct have the best means of judging with what fidelity he performed his duty. APPEAL from the Circuit Court of the Unit- ed States for the Northern District of The circuit court rendered a decree in favor of the complainants, and the defendants appealed to this court. The case is stated by the court. Messrs. A. W. Arrington and S. S. Baxter, for appellants: Burcham and others, the present appellees, 2. Two vessels only were in port bound to New filed their bill in the court below, asking for an York, and both of those were there for the pur- injunction restraining the present appellants pose of repairs, and of course were not in a con- from prosecuting a suit at law to recover a dition to bring forward the cargo of the brig. Un- certain tract of land; and that they be comable, as the master was, to employ another ves-pelled, by proper conveyance, to release their sel and send the cargo forward, it was certain-claim to the said land to the complainants, acly his duty to take all possible care to preserve cording to their respective interests. it. Looking at the whole evidence, it is clear that he sought the best advice that he could obtain, and followed it faithfully; and notwithstanding the opinion expressed by certain witnesses to the contrary, we are by no means prepared to admit that he did not pursue a judicious course to prevent the fruit from perishing. In view of all the facts and circumstances, we think the point is without merit, and it is accordingly overruled. 3. Having come to that conclusion, one or two remarks in regard to the suit brought by the owners of the vessel will be sufficient. They, having established the fact that the loss and decay of the fruit were not occasioned by the fault of the master, were clearly entitled to recover for the freight on all that portion of the cargo that was duly transported and delivered. No question was made as to the amount in the circuit court, and it is not pretended that the question ought to be opened here in case the other decree should be affirmed. After a careful consideration of the evidence, we have come to the conclusion that the decision of the Circuit Court was correct, and the respectice decrees are, accordingly, affirmed, with costs. JONATHAN CREWS, LYCURGUS SHER- v. HENRY L. BURCHAM ET AL. (See S. C., 1 Black, 352-358.) AND Indian Treaty of Oct., 1832-right may be sold and conveyed-recitals in patent, conclusive bill to quiet title, maintainable-possession of land, notice of claim. By a Treaty, with the Pottawatomie tribe of Indians, of October 27, 1832, the Nation ceded to the United States all its lands in Illinois and other States, subject to certain reservations, for which patents were to be issued. Held, that the reservation created an equitable interest in the land to be selected under the Treaty; that it was the subject of sale and conveyance. The reservee was competent to convey it; and his deed, upon the selection of the land, and the issue of the patent, operated to vest the title in his grantee. The recitals in the patent, that the sections were 1. No legal interest vested in Besion by force of the Treaty. (a) The Treaty contains no words of present grant. Broom's Max., 505; Co. Litt., 210, A; Longlois v. Coffin, 1 Cart., 446. (b) No particular land was described in the Treaty. Jackson v. Woodruff, 1 Cow., 286; Livingston v. Peru Iron Co., 9 Wend., 520; Blake v. Doherty, 5 Wheat., 362; U. S. v. King, 3 How., 786, 787. (c) The individual land still remained to be determined by subsequent election. Bullock's case, Dyer, 281; 2 Co., 36; Heyward's 's case, 2 Co., 34; Stukley v. Butler, Hob., 174; Bac. Abr., Grant, H, 3; Shep. Touch. M., 251; Haven v. Cram., 1 N. H., 93; Canning v. Pinkam, 1 N. H., 356; Vandenburgh v. Van Bergen, 13 Johns., 217; Jackson v. Van Buren, 13 Johns., 525. The case of Mann v. Wilson, 64 U. S. (23 How.), 457, does not control, for the grantees, under the Treaty in this case, could not be tenants in common with the United States. Litt. Ten., sec. 292; Com. Dig., Estates, K, 8; Fisher v. Wigg, 1 Ld. Raym., 629; Fleming v. Kerr, 10 Watts, 444; Ross v. M'Junkin, 14 Serg. & R., 364; 1 Story, Eq. Jur., sec. 634; 4 Kent, Com., 368, 369; Duncan v. Sylvester, 24 Me., 482; Peabody v. Minot, 24 Pick., 329; Great Falls Co. v. Worster, 15 N. H., 412; Fletcher v. Peck, 6 Cranch, 142; Johnson v. M'Intosh, 8 Wheat., 543. The rule in Mann v. Wilson does not include the facts of this case. (d) No legal title vested in the appellees by estoppel. Spencer's case, 5 Co., 16, Smith, Lead. Cas., 103, 119, 556; Noke v. Awder, Cro. Eliz., 436; Pargeter v. Harris, 7 Q. B. N. S., 708; Tillotson v. Kennedy, 5 Ala., 413; Blanchard v. Brooks, 12 Pick., 67; Comstock v. Smith, 13 Pick., 116. (e) The legal title has not vested in the appellees by force of the Act of Congress. If the appellees have the legal title by the Treaty, by estoppel, by Act of Congress or by relation, they have a perfect remedy at law. Hipp v. Babin, 60 U. S. (19 How.), 271. Therefore, the court erred in not dismissing the bill. 2. No equitable interest vested in Besion, by the Treaty. 4 Kent, Com., 304; Foster v. Neilson, 2 Pet., 314; U. S. v. Arredondo, 6 Pet., 735; 2 Story, Eq. Jur., sec. 1040; Bac. Max. Regula, 14; Broome, Max., 374; Com. Dig., Grant, D; 2 Eq. Lead. Cas., part 2, p. 224. 5 Stat. at L., 31; Landes v. Brant, 10 How., | the United States, after the land was surveyed, 374; Best, Pres., 25, 26, 27. and the boundaries should correspond with the public survey. Francis Besion, a member of the tribe, was a reservee of one half section of land under this Treaty. As we have said, the treaty bears date 27th October, 1832. On the 4th February following, Besion conveyed, for a valuable consideration, all his right and interest in the half section to William Armstrong, under whom the complainants below derive their title. The selection of the half section was made by the President, in pursuance of the Treaty, and a patent was issued on the 17th February, 1845, for the same, to Besion and his heirs, with an habendum clause, "to have and to hold said tract, with the appurtenances, unto the said Francis Besion, his heirs and assigns." Besion died in 1843, before the issuing of the patent. The defendants set up a title to the tract under conveyances from the heirs of the reservee, claiming that the deed from him to Armstrong carried with it no right or title to the half section, which was subsequently selected and patented. The decree of the court below was in favor of the complainants, enjoining the suit at law, and restraining the institution of others for the purpose of quieting the title. 3. The appellants are protected by their character of bona fide purchasers. Farmers' Loan and Trust Co. v. Maltby, 8 Paige, 361; State of Conn. v. Brandish, 14 Mass., 302; Moore v. Hunter, 1 Gilm. Ill., 331; 2 Eq. Lead. Cas., part 1, p. 162. The onus lies on the appellees, to prove notice and want of consideration. 2 Eq. Lead. Cas., part 1. pp. 119, 121; Sullivan v. Bates, 1 Litt.,42; Mason v. Peck, 7 J. J. Marsh., 301; Roberts v. Salisbury, 3 Gill & J., 425; Carpenter v. Prov. & Wash. Ins. Co., 4 How., 217; Flagg v. Mann, 2 Sumn., 486; Munroe v. McCormick, 6 Ired. Eq., 85. Messrs. Jno. B. Niles, I. M. Carlisle and C. Beckwith, for appellees: The provisions of the Treaty amounted to a solemn grant, by the government, to Besion and his heirs and assigns. Such grants have been recognized as assign. able. without notice. R. S. Ill., 1845, p. 108, sec. 23; Ellicottv. Pearl, 10 Pet., 443; Barr v. Gratz, 4 Wheat., 213; Bell v. Longworth, 6 Ind., 273; Thomas v. Harrow, 4 Bibb, 563. Mr. Justice Nelson delivered the opinion of the court: This is an appeal from a decree of the Circut Court of the United States for the Northern District of Illinois. The bill was filed by the appellees, the complainants below, against the defendants, to enjoin a suit at law to recover a part of fractional section 24, in township 31, Illinois. By a Treaty with the Pottawatomie tribe of Indians of Octo ber 27, 1832, the Nation ceded to the United States all their lands in Illinois and other States, subject to certain reservations, for which patents were to be issued. Provision was made in the Treaty, that the reservations should be selected under the direction of the President of The main and controlling questions involved in this case were before this court in the case of Doe v. Wilson, 23 How., 457, which arose under a reservation in this Treaty in behalf of the chief, Pet-chi-co. It was there held, that the reservation created an equitable interest to the land to be selected under the Treaty; that it was the subject of sale and conveyance; that Pet-chi-co was competent to convey it; and that his deed, upon the selection of the land and the issue of the patent, operated to vest the title in his grantee. It is true that no title to the particular lands in question could vest in the reservee, or in his grantee, until the location by the President, and, perhaps, the issuing of the patent; but the obligation to make the selection as soon as the lands were surveyed, and to issue the patent, is absolute and imperative, and founded upon a valuable and meritorious consideration. The one lands reserved constituted a part of the compensation received by the Pottawatomies for the relinquishment of their right of occupancy to the government. The agreement was which, if entered into by an individual, a court of chancery would have enforced by compelling the selection of the lands and the conveyance in favor of the reservee, or, in case he had parted with his interest, in favor of his grantees. And the obligation is not the less imperative and binding, because entered into by the government. The equitable right, therefore, to the lands in the grantee of Besion, when selected, was perfect; and the only objection of any plausibility is the technical one as to the vesting of the legal title. The Act of May 20, 1836, ch. 76 (5 Stat., 31), provides, "that in all cases where patents for public lands have been or may hereafter be issued in pursuance of any law of the United States, to a person who had died, or who shall hereafter die, before the date of such patent, the title to the land designated therein shall inure to, and become vested in, the heirs, devisees, or assigns of such deceased patentee, as if the patent had issued to the deceased person during life." at the time, which operated as notice to the subsequent purchasers. 2 The decree of the court below affirmed. McAr., 464; 10 Biss., 294; 20 Minn., 362. Cited-17 Wall., 247; 1 Sawy., 650; 104 U. S., 563; SELAH CHAMBERLAIN, Appt., We think it quite clear, if this patent had issued to Besion in his lifetime, the title would have inured to his grantee. The deed to Armstrong recites the reservation to the grantee of the half section under the Treaty, and that it was to be located by the President after the lands were surveyed; and then, for a valuable consideration, the grantee conveys all his right and title to the same with a full covenant of warranty. The land is sufficiently identified, to which Besion had the equitable title which was the subject of the grant, to give operation and effect to this covenant on the issuing of the pat- Appeal, ent within the meaning of this Act of Congress. The Act declares the land shall inure to, and be. come vested in, the assignee, the same as if the patent had issued to the deceased in his lifetime. The warranty estops the grantee, and all persons in privity with him, from denying that he was seised. The estoppel works upon the estate, and binds the after acquired title as between parties and privies. Van Rensselaer v. Kearney, 11 How., 325; French v. Spencer, 21 How., 228. Some expressions in the opinion delivered in the case of Doe v. Wilson, the first case that came before us arising out of this Treaty, were the subject of observation by the learned counsel for the appellant in the argument, but which were founded on a misapprehension of their scope and purport. It was supposed that the court had held that the reservee was a tenant in common with the United States after the Treaty of Cession, and until the surveys and patent. It will be seen, however, that the tenancy in common there mentioned referred to the right to occupy, use, and enjoy the lands in common with the government, and had no relation to the legal title. An objection was taken, that a portion of the half section embraced in the patent to Besion did not lie within the district of country ceded by the Treaty. The same objection was taken in the case of Doe v. Wilson, and the answer given was, the recitals in the patent, that the sections were those selected by the President, and to which the reservee was entitled under the Treaty, were conclusive on the point; and we may add that, certainly, no third party has any right to complain, if the fact were as alleged. An objection was also taken, that if the complainants held the legal title to the premises in question, their remedy was at law, and not in equity. But the answer is, that the bill was filed by the complainants, among other things, to relieve their title from the embarrassment of the adverse claims set up under the deeds from the heirs of Besion, and also to restrain a multiplicity of suits. It appears that a portion of the land has been laid out in town lots, which are held under the complainants' title. A further objection was taken, that the defendants are bona fide purchasers for a valuable consideration. But the answer is, that the deed from Besion to Armstrong, which referred specially to this reserved right to the half section, was duly recorded before the purchase of the defendants; and, besides, those deriving title under this deed to Armstrong were in possession of the tract, claiming title to the whole Ο. NEWCOMBE CLEVELAND. (See S. C., 1 Black, 419-426.) not conducted by adverse parties, will ⚫ be dismissed. dence filed in behalf of persons not parties to the Where it appears, from affidavits and other evisuit, that the appeal is not conducted by parties having adverse interests, but for the purpose of terests of persons not parties, the appeal will be obtaining a decision of this court, to affect the indismissed. Argued Jan. 17, 1862. Decided Feb. 3, 1862. APPEAL from the District Court of the Unit ed States for the District of Wisconsin. Mr. W. P. Lynde and J. S. Black, for appellee. A motion was made and argued by Mr. Black, in behalf of persons not parties to the record, to intervene and dismiss on the ground that the appeal was not conducted by parties having adverse interests, but for the purpose of obtaining the decision of the court to affect the interests of presons not parties. Mr. Johnson opposed the motion. Mr. Justice Grier delivered the opinion of the court: This appeal must be dismissed. Selah Chamberlain is, in fact, both appellant and appellee. By the intervention of a friend he has purchased the debt demanded by Cleveland in his bill, and now carries on a pretended controversy by counsel, chosen and paid by himself, and on a record selected by them, for the evident purpose of obtaining a decision injurious to the rights and interests of third parties. There is no material difference between this case and that of Lord v. Veazie, 8 How., 254, when the whole proceeding was justly rebuked by the court as "in contempt of the court, and highly reprehensible." That case originated in a collusion between the parties. In this case the appellee, who was a judgment creditor of the La Crosse and Milwaukee Railroad, filed his bill to set aside a fraudulent conveyance of the debtors' property made to the appellant, and other fraudulent conveyances of their lands made to certain directors of the Company, who were also made parties respondent. The case was prosecuted with vigor by the complainant till a decree was obtained (on the 11th of February, 1859), setting aside the various assignments, and the case" committed to a master to ascertain and report the annual income of the several lots described in the bill," &c. This was not a final decree. Nevertheless, an appeal was permitted to be entered by Chamberlain on 12th of February, 1859. But the rec ord was not brought up to this court for a It is the rule in the construction of statutes, that par-sidered together. all relating to the same subject-matter shall be conAbout What is implied in a statute, pleading, contract or will, is as much a part of it as what is expressed. limited in its effect to the section where it is found, The proviso, in the statute on this subject, is not but applies alike to all officers of this class. Argued Jan. 27, 1862. Decided Feb. 10, 1862. I States for the District of Iowa. of the counsel, who, in July, 1860, entered a discontinuance as to the parties, against whom a decree had not been entered. It is plain that this is no adversary proceeding, no controversy between the appellant and the nominal appellee. It differs from the case just cited in this alone, that there both parties colluded to get up an agreed case for the opinion of this court; here, Chamberlain becomes the sole party in interest on both sides, makes up a record, and has a case made to suit himself, in order that he may obtain an opinion of this court; affecting the rights and interest of persons not parties to the pretended controversy. We repeat, therefore, what was said by the court in that case: "Any attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law, which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehended, and treated as a punishable contempt of court.' It is but proper to say, that the counsel who have been employed in the case are entirely acquitted of any participation in the purposes of the party. N ERROR to the District Court of the United The United States brought suit in the court below against Babbit and others, on the bond of the said Babbit, as Register of the Land Office at Kanesville, Iowa, claiming a balance of $9,816.24, which he refused to account for. This amount consisted of fees received by him for locating military bounty lands under the Acts of Feb. 11, 1847, Sept. 5, 1850, March 22, 1852, and March 3, 1855. The claim against Coles was $11,824.36, and was of the same nature as the claim against Babbit, he having been the Register at Chariton, Iowa. The defendants in each case demurred, alleging informality in the pleadings, and also that the fees were their rightful property, for which they were not bound to account to the United States. The demurrers were sustained by the court, and judgments entered for the defendants. The plaintiffs brought the cases to this court by writs of error. The cases and the Acts of Congress on which they depend are further stated by the court. Mr. Edward Bates, Atty-Gen., for plaintiffs in error. Messrs. R. Johnson, R. H. Gillet, Le Brand, Byington and Stevens, for defendants in error: A review of the Acts of Congress, relating to the fees of the Registers of the Land Offices, establishes the following conclusions: 1. Where the government is benefited by the services of the Register, it compensates him directly from the Treasury. An exception occurs under the 3d section of the Act of 1852. where certain past gratuitous services were thus paid. This case came on to be argued on the transcript of the record from the Circuit Court of the United for the District of Wisconsin; and it appearing to the court here, from affidavits and other evidence filed in this case in behalf of persons not parties to this suit, that this appeal is not conducted by parties having adverse interests, but for the purpose of obtaining a decision of this court, to affect the interests of persons not parties, it is, therefore, now here 2. Where the services are for the benefit of ordered and adjudged by this court, that the ap- the parties who require them, fees are demandpeal in this case be, and the same is hereby disable, sometimes in specific amounts, and at missed, with costs. others computable from a scale established by Congress. Cited-15 Blatchf., 318; 3 McC., 386; 29 Ind., 551; 30 Cal., 3. Where the services are for the government, the compensation is limited, including the salary of $500 to $3,000 per annum, except in Oregon and Washington, where it is $2,500 only. The payments for former uncompensated services under the 3d section of the Act of 1852, though paid from the Treasury, were thus limited. 4. All fees or compensation paid by individuals to the Registers belonged exclusively to them, there being no limitation in any Act relating to them, and no law requiring them to keep an account of them, or to pay over to the government any portion thereof. The demurrers, therefore, were properly decided in the court below, all the fees in controversy were lawfully received and retained for the sole use of the Register, the government never having declared its intent of claiming them, or provided a means of ascertaining their amount, or required them under any law to be paid into the Treasury. Congress has protected the Treasury against demands by Registers for amounts exceeding $3,000 for services rendered to the government, and left them to receive and enjoy such compensation for services performed for others, as the law authorizes them to demand and receive. Mr. Justice Swayne delivered the opinion of the court: 64 This was an action in the court below, upon the official bond of the defendant, Babbit, as Register of the Land Office at Kanesville, in the State of Iowa. The bond bears date on the 9th day of May, 1853. The petition, we are advised, is according to the practice in the courts of that State. It sets out a copy of the bond, and alleges, as a breach, that Babbit, as such Receiver, and by virtue of his office, to wit: from the 6th day of April 1853, to the 20th day of October, 1856, received, as fees for the location of military bounty land-warrants, under the provisions of the Acts of Congress approved 11th of February, 1847, 25th of September, 1850, 22d of March, 1852, and 3d of March, 1855, the sum total of $13,879.08; and that sum the said Babbit still holds, and refuses to pay to the plaintiffs, though often requested and directed by the proper officers to do so-the sum of nine thousand eight hundred and sixteen dollars and twenty-four cents." The pleader has annexed to and made a part of the petition, a Treasury transcript of the accounts of the Register, showing the balance against him claimed by the plaintiffs. The defendants demurred, and assigned for causes: 1. That the petition was so defective in form that the plaintiffs could not, by law, maintain their action. 2. That the petition did not set forth a cause of action in proper form. 3. That no cause of action was set forth in the petition; for that, by law, the defendant Babbit was entitled to retain the said moneys received by him, as fees of office, and was not bound to account to the plaintiffs for the same. The petition is in striking contrast with the brevity and clearness of the common law forms in like cases. It contains, however, all the substantial elements of a good declaration, and sufficiently discloses the cause of action which the pleader designed to present. This brings us to the consideration of the main question in the case, which is, whether the defendant Babbit is entitled to retain, for his own use, the fees in controversy. The proper solution of this question must depend upon a careful examination of the Acts of Congress to which our attention has been called. The Act of April 20, 1818, ch. 123 (3 Stat., 466), provides: "That, instead of the compensation now allowed by law to the registers of the land offices, they shall receive an annual salary of five hundred dollars each, and a commission of one per centum upon all moneys expressed in the receipts by them filed and entered, and of which they shall have transmitted an account to the Secretary of the Treasury: Pro vided, That the whole amount which any register of the land offices shall receive under the provisions of this Act shall not exceed, for any one year, the sum of three thousand dollars.' The Act of February 11, 1847, ch. 8, sec. 9 (9 Stat., 125), gave to certain non-commissioned officers, musicians, and privates in the Mexican war, each one hundred and sixty acres of land. This Act makes no provision for fees. The Act of May 17, 1848, ch. 44 (9 Stat., 231), authorized registers and receivers to receive from the holders of warrants the fees therein specified, for their services in carrying out the provisions of the Act of 1847, with a proviso, that where the warrant was located for the use of the volunteer to whom it was issued, no compensation should be charged either by the register or receiver. The Act of September 28, 1850, ch. 85 (9 Stat., 520), authorized the issuing of bounty land-warrants to the soldiers who performed military service in the war of 1812, or in any of the Indian wars since 1790, and to the commissioned officers in the Mexican war. This Act made no provision for fees; but, on the contrary, directed the locations to be made "free of expense. " The Act of March 22, 1852, ch. 19 (10 Stat., 4), extends the benefits of the Act of 1850 to all cases where the militia or volunteers of any State or Territory were called into military serv ice and paid by the United States, subsequent to the 18th of June, 1812. The 2d and 3d sections of that Act are as follows; "Sec. 2. That the registers and receivers of the land offices shall hereafter be severally authorized to charge and receive for their services, in locating all military bounty land-warrants issued since the 11th day of February, 1847, the same compensation or percentage to which they are entitled by law for sales of public lands for cash, at the rate of $1.25 per acre, the said compensation to be hereafter paid by the assignees or holders of such warrants. 'Sec. 3. That registers and receivers, whether in or out of office at the passage of this Act, or their legal representatives in case of death, shall be entitled to receive from the Treasury of the United States, for services heretofore performed in locating military bounty land-warrants, the same rate of compensation provided in the preceding section for services hereafter to be performed, after deducting the amount already received by such officers under the Act entitled An Act to require the holders of military land warrants to compensate the land officers,' &c., approved May 17, 1848: Provided, That no register or receiver shall receive any compensation out of the treasury for past services, who has charged and received illegal fees for the location of such warrants: And provided, further, That no register or receiver shall receive for his services, during any year, a greater compensation than the maximum now allowed by law." The Appropriation Act of March 3, 1853, ch. 98 (10 Stat., 224), contains at its close the following proviso: "That whenever the amount received at any United States land office, under the third section of an Act entitled 'An Act to make landwarrants assignable, and for other purposes,' approved March 22, 1852, has exceeded or shall exceed the amount which the registers and receivers at any such office are entitled to receive under said third section, the surplus which shall remain, after paying the amount so due as aforesaid to said registers and receivers, shall |