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the present case. The question whether it was the duty of the president to interpose for the protection of the citizens at Greytown against an irresponsible and marauding community that had established itself there was a public political question, in which the government, as well as the citizens whose interests were involved, was concerned, and which belonged to the executive to determine; and his decision is final and conclusive, and justified the defendant in the execution of his orders given through the secretary of the navy. Judgment for defendant.

WARE v. BROWN.

(Circuit Court for Ohio: 2 Bond, 267-270. 1869.)

Opinion of the COURT:

STATEMENT OF FACTS.-The question before the court is presented on a demurrer to the declaration. The declaration is of great length and very special. Briefly stated it is substantially as follows: One Cochran had a leasehold interest in an acre of land, for oil purposes, in West Virginia, and sold and assigned an interest of three-fifths of his leasehold interest to three persons — Stimson, Stein and Love; these persons, by deed, sold and assigned the entire leasehold interest in the land to one Buffington, the said Cochran not joining in, or being a party to, the deed of assignment; this deed or instrument, with the name and seal of Cochran and the other parties, was presented to the defendant Brown, an acting notary public of Athens county, Ohio, for his official certificate of the acknowledgment of the due execution of the same. It is then averred that the defendant, knowingly, falsely and corruptly, under his notarial seal, certified that all the parties to the deed of assignment, including the said Cochran, personally appeared before him and acknowledged the signing and sealing thereof; and that defendant subscribed his name thereto, as an attesting witness of its execution by all the parties, knowing that the name of said Cochran was a forgery and that he had not executed the deed, or acknowledged the same before him. The plaintiff then avers that Buffington, supposing he had a perfect title to the entire leasehold interest in the tract, under the deed of assignment thus authenticated, sold the same for a valuable consideration to the defendant, and executed a deed of assignment for the same in due form; that the defendant, ignorant of the fraudulent character of the assignment to Buffington and the corrupt action of the defendant in falsely and corruptly certifying to its execution, and supposing he had a good title to the interests of all the parties, including the interest of the twofifths vested in Cochran, contracted to sell, and did sell, the entire leasehold to other parties. And it is then averred that upon the discovery of the fraud in the assignment to Buffington and the corrupt act of the defendant in his false certificate of the acknowledgment of the same, the plaintiff was compelled to pay a large sum to perfect his title, whereby he was greatly injured, and claims damages of the defendant.

Upon the case thus made in the declaration, the question is whether the plaintiff shows a good cause of action and a right to recover damages for the alleged official malfeasance charged against the defendant. I regret that no prepared briefs were submitted to the court by the counsel, and that the pressure of other duties has not enabled me to look into the authorities as fully as I could have desired. From a cursory examination of the point I can find no adjudicated cases sustaining the right of the plaintiff to a recovery in this action; while there are some that lead directly to the opposite conclusion.

§ 918. An action for a tort and malfeasance in office can only be sustained by the party directly defrauded, not by one who by reason of the act has subsequently sustained loss.

The fraud and malfeasance of the defendant, if the facts averred in the declaration are true, undoubtedly show the most repulsive official corruption on the part of this defendant. And if this action was prosecuted by Buffington, who was the person directly defrauded by the acts alleged against the defendant in his official character as a notary public, there would be no question that it would be sustained, and that he could recover to the extent of any loss or injury he may have suffered. But it is a very different question whether this plaintiff has a right of action. The general principle is that no one but the party directly injured by the commission of a tort can sue for the injury arising from it. It is well settled that a right to compensation for a wrong committed is not assignable in fact or by operation of law. 1 Pet., 193. There was no privity between this plaintiff and the parties implicated in the fraudulent acts alleged. He then had no interest in the property, and there could have been no intention to defraud or injure him. The alleged fraud was in the sale and conveyance to Buffington and the false authentication of the assignment to him. It was the obvious duty of the plaintiff to have inquired into the validity of Buffington's title, and I see no reason why the doctrine of caveat emptor does not apply.

The case of Dehn v. Heckman, 12 Ohio St., 181, seems to sustain the principle suggested, that the person directly injured by a tortious act, or a wrongful neglect of official duty, only has a right of action. In that case a justice of the peace was sued for not having issued process and entered judgment against the maker of a promissory note left with him for collection. An indorser paid the note and brought suit against the justice for neglect of duty. The court held that the owner or holder of the note had the legal right of action against the justice, and that the action by the indorser could not be sustained.

The case of Wells v. Cook, 16 Ohio St., 67, is a direct authority upon the question before the court. It is elaborately considered by Judge Brinkerhoff, in delivering the opinion of the court, and numerous cases from the English report are referred to. Instead of expanding this opinion by a special notice of these cases, I content myself by referring to them as collected and commented on by the learned judge in his opinion. The demurrer is sustained.

BATES v. CLARK.

(5 Otto, 204-210. 1877.)

ERROR to the Supreme Court of the Territory of Dakota.
Opinion by MR. JUSTICE MILLER.

STATEMENT OF FACTS.-The plaintiff in error, Bates, was a captain in the 'army of the United States, in command at Fort Sward, in the territory of Dakota, near the crossing of the James river by the North Pacific Railroad; and Yeckley, 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

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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., 729.

The twentieth section of that act forbids the introduction of wines or spirituous liquors within this territory. By the act of 1864, amending this section, it is made lawful for any Indian 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 forfeited one-half to the informer and the other half to the use of the United States. 13 id., 29.

§ 919. Moving to strike out a plea is an unscientific mode of raising a pure issue of law.

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 of counsel, or any defect of that character; but if a real and important 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.

$920. "Indian country" is that part of the United States described in the act of June 30, 1834, in which the Indian title to the soil still subsists.

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., 139. The first section of that act describes a boundary, the description occupying over a page of the statute book, and declares that this shall be distinctly marked under orders of the president, and considered as the line of the Indian territory, or Indian country as it 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 Cayahoga river, on Lake Erie, now Cleveland, runs in a wonderfully tortuous course through the country north west 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 first 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 covered 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 imprisonment, of which the courts who so punished them had no jurisdiction if the offenses were not cominted in the Indian country, as established 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 it continued to be Indian country so long as the Indians had title to it and no longer. As soon as they parted with the title it ceased to be Indian country without any further act of congress, unless by the treaty by which the Indians parted with their title, or by some act of congress, a different rule was made applicable to the case.

In the case of The American Fur Company v. The United States, 2 Pet., 358, decided in 1829, the goods of the company had been seized for violating the laws by their introduction into the Indian country under the act of 1802. This court held that if, by treaties made with the Indians after the passage of that act, their title to the region where the offense was committed had been extinguished, it had thereby ceased to be Indian country, and the statute did not apply to it.

So in the case of United States v. Forty-three Gallons of Whisky, decided at the last term (93 U. S., 188), where this act of 1834 was fully considered, while the court holds that by a certain clause in the treaty by which the locus in quo was ceded by the Indians, it remained Indian country until they removed from it, the whole opinion goes upon the hypothesis that when the Indian title is extinguished it ceases to be Indian country, unless some such reservation takes it out of the rule. When this treaty was made, in 1864, the land ceded was within the territorial limits of the state of Minnesota. The opinion holds that it was Indian country before the treaty, and did not cease to be so when the treaty was made by reason of the special clause to the contrary in the treaty, though within the boundaries of a state.

It follows from this that all the country described by the act of 1834 as Indian country remains Indian country so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of

congress.

The plaintiffs below violated no law in having the whisky for sale at the place where it was seized; and the twentieth section of the act of 1834, as amended by the act of 1864, conferred no authority whatever on the defendants to seize the property.

§ 921. In times of peace military officers are liable for torts the same as civilians.

It is a sufficient answer to the plea, that the defendants were subordinate officers acting under orders of a superior, to say that, whatever may be the rule in time of war and in the presence of actual hostilities, military officers can no more protect themselves than civilians in time of peace by orders emanating from a source which is itself without authority. The authority of the commandant of the post in the case was precisely the same as the Indian agent or sub-agent or superintendent; and it will hardly be maintained that if either of them, wholly mistaking their powers, had seized the goods, he would have incurred no liability.

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