appear that such a judgment of dismissal has not the effect which is contended for by the plaintiff in error, and that it is no bar to another action for the same cause.

It is contended that the court erred in admitting in evidence a certain exhibit which purported to be a copy of a notice served by the former receiver upon the plaintiff in error. The complaint had alleged a notice of the assessment and demand for its payment given and made to the plaintiff in error by the receiver, and this was denied by the answer. The receiver, to prove his cause of action, introduced the affidavit of Joseph G. Heim, the former receiver of said bank, together with the exhibit attached thereto. It was stipulated between the parties that the affidavit of Heim might stand in said cause for and as the testimony of said Heim in all respects as if it had been taken upon commission duly issued, or as if he were present in court; the plaintiff in error reserving an objection thereto. on the ground of irrelevancy, immateriality, and incompetency only. It is contended now that the exhibit was incompetent testimony, for the reason that it was not the best evidence; that no notice or demand was served upon the plaintiff in error to produce the original notice; and that the copy, therefore, was secondary evidence. We do not find it necessary to consider this objection. It appears in the body of the affidavit that the affiant deposed to the fact that before the commencement of the action he made personal demand upon the plaintiff in error "for the payment of said assessment," and that the plaintiff in error admitted having received the notice and having knowledge thereof and of said demand. We think this was sufficient notice to and demand of the defendant in error, and that the admission of the exhibit, if it was error, was harmless.

It is contended that it affirmatively appears from the evidence that the receiver had no authority from the comptroller of the treasury to bring the present action. It is not denied that the record shows that there was originally authority to commence such an action, but it is contended that, inasmuch as authority was given subsequently to compromise the demand or to sell the same, it operated to retract the authority to sue. We think this assignment of error requires no extended discussion. The authority to bring the action was in no way curtailed or withdrawn by the authority to compromise or to sell the cause of action. The latter authority, so given, was a general power "to compromise and compound or sell at private sale all of the assets of said bank," including "claims due upon assessment of the capital stock." It was an authority entirely consistent with the specific authority previously given to bring suit. The receiver had the power to take either course so permitted by the comptroller. It is contended, further, that the present action is barred by a second action which was brought for the purpose of enforcing the compromise which had been agreed upon between the receiver and the plaintiff in error at the time of the dismissal of the first action. It had been agreed as a compromise of said demand for said assessment that the plaintiff in error would convey to the receiver certain lots in South Bend, Wash., as a payment of the sum of $415.83, $215.83 whereof was to pay an account due to the bank from one

Morgan, and the remaining $200 was to be credited to the plaintiff in error on the said assessment, and that thereafter the plaintiff in error would pay the remainder of his assessment in certain installments, all of which were to fall due within a year from the date of the compromise. It appeared that this agreement was not carried. out by the plaintiff in error, except that he conveyed the lots to the receiver and received the stipulated credit therefor. In order to enforce the compromise the receiver brought the action upon the agreement, but before proceeding to judgment he took a voluntary nonsuit, which he had the right to do. We cannot see how that proceeding affects his power to prosecute the present action. The plaintiff in error failed to carry out his part of the agreement. The receiver has in the present action credited him with the $200 so paid on account. We find no error in the ruling of the trial court in denying to this agreement of compromise the effect of a bar to the present action.

Equally without merit is the contention that the court erred in denying the motion of plaintiff in error for a judgment at the close of the trial, upon the ground that by instituting proceedings in the second action to enforce the compromise the receiver had elected that remedy and had thereby waived his right to pursue another. There is no question here of the right of election. Election refers to a choice between different forms of action based upon the same facts. These two actions relate to different states of fact. The former was brought to enforce an agreement of compromise. The receiver took. a nonsuit therein, possibly for the reason that, as the answer of the plaintiff in error in the present action alleges, the compromise agreement had never been authorized or ratified by the comptroller. But, whatever may have been the reason, the receiver had the right to regard the compromise as abandoned, and to sue upon the assessment. He chose that course. He was not estopped to do so by reason of having instituted an action upon the compromise agreement. It is contended that the liability of the plaintiff in error upon the assessment was satisfied by the payment of the $200 and the conveyance of the lots; that in taking the $200 the receiver became trustee for the plaintiff in error to secure the ratification of the proposal then submitted. This contention cannot be sustained. It is only necessary to advert to the fact, already alluded to, that the plaintiff in error failed to carry out his agreement of compromise, and that the receiver applied the $200, which had been paid him, on the assessment, and in the judgment gave the plaintiff in error credit therefor. It is argued in this connection that the lots were of much greater value than $415.83, and that the receiver still retains the title to the lots. It must not be forgotten, however, that the lots were turned over at an agreed price, and that they were conveyed for a double purpose-First, to pay the debt of $215.83 owing by Morgan to the bank; and, second, to pay $200 upon the assessment owing from the plaintiff in error.

We find no error in the record for which the judgment should be reversed. The judgment is affirmed.

119 F.-8

HY-YU-TSE-MIL-KIN. v. SMITH.

(Circuit Court of Appeals, Ninth Circuit. October 6, 1902.)

No. 766.

1. INDIANS-SUITS FOR ALLOTMENT OF LANDS-SPECIAL JURISDICTION OF CIRCUIT COURT.

Act Aug. 15, 1894 (28 Stat. 305), confers on a circuit court of the United States jurisdiction to decree relief to an Indian, entitled under the law to an allotment of certain lands, of which right he has been deprived by the rulings of the land department.

2. SAME-PARTIES.

The provision of such act, that the decree of the court in favor of a claimant in a suit brought thereunder shall have the same effect as an allotment allowed and approved by the secretary of the interior, is in effect a consent upon the part of the United States to be bound by such decree; and, where the suit involves simply a question of priority of right between two claimants, the United States is not a necessary party.

8. SAME EQUITIES BETWEEN ALLOTTEES-PRIORITY OF SELECTION AND IMPROVE

MENT.

It was the intention of congress by Act March 3, 1885 (23 Stat. 340), providing for the allotment of lands in severalty to members of the Walla Walla and other Indian tribes, which gave them the right to select the land they wished allotted to them, that, where more than one person selected the same land, the allotment should be made with reference to priority of selection, residence, and improvement, in accordance with the principle which has always been recognized in the disposition of public lands; and an Indian woman of the tribe, who selected and improved land with the consent of the tribal authorities, but whose right to an allotment was erroneously denied by the land department, cannot be deprived of her prior right to the land, so selected and improved, after such ruling has been reversed, by the fact that it had been subsequently allotted to another member of the tribe, who was put in possession, but who had full knowledge of her claim; nor is she estopped to assert her preferred right by the fact that she afterwards accepted a different allotment, with the understanding and on the assurance of the agent that it would not prejudice her right to claim that selected.

4. SAME-RIGHt to Allotment-ResidencE ON RESERVAtion.

Complainant, who was a full-blooded Indian woman of the Walla Walla tribe, did not forfeit her right to an allotment of land in severalty under Act March 3, 1885 (23 Stat. 340), because at the time the census list of those entitled to allotments was made up she was residing with her family outside the reservation, but on lands which members of the tribe were accustomed to occupy for hunting, fishing, or pasturage purposes, and which they were given the right to so occupy by treaty with the United States.

Appeal from the Circuit Court of the United States for the District of Oregon.

John H. Hall, U. S. Atty., for appellant.

R. J. Slater and J. T. Hinkle, for appellee.

Before GILBERT, Circuit Judge, and HAWLEY and DE HAVEN, District Judges.

DE HAVEN, District Judge. This is a suit in equity. The complainant is a full-blooded Indian woman, and a member of the Walla Walla band of Indians, residing in the state of Oregon. The prayer of the bill is that an allotment of a certain quarter section of land,

part of the Umatilla Indian reservation, made to the defendant, be canceled, and for a decree that the complainant was and is entitled to have said land allotted to her under the act of congress of March 3, 1885 (23 Stat. 340), providing for the allotment of lands in severalty to the Indians residing upon the Umatilla reservation in the state of Oregon. The decree of the circuit court was in favor of the complainant (100 Fed. 60), and from this decree the defendant has appealed.

1. The appellant contends that the circuit court was without jurisdiction of the cause; that under section 6 of the act of congress of March 3, 1885 (the act above referred to), the action of the secretary of the interior in making the allotment of the land in controversy was final, and cannot be made the subject of review in the courts. We are of the opinion, however, that the action was properly brought under the act of August 15, 1894 (28 Stat. 305), which provides:

"That all persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of land under any law of congress, or who claim to be so entitled to land under any allotment act or under any grant made by congress, or who claim to have been unlawfully denied or excluded from any allotment or any parcel of land to which they claim to be lawfully entitled by virtue of any act of congress, may commence and prosecute or defend any action, suit or proceeding in relation to their right thereto, in the proper circuit court of the United States. And said courts are hereby given jurisdiction to try and determine any action, suit, or proceeding arising within their respective jurisdictions, involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty. And the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the secretary of the interior, as if such allotment had been allowed and approved by him.

This language is certainly broad enough to confer upon the circuit court jurisdiction to hear and determine the complaint of any person who is "in whole or in part of Indian blood," who claims "to have been unlawfully denied or excluded from any allotment or parcel of land" to which such person claims "to be lawfully entitled by virtue of any act of congress," and such is the nature of the bill filed by the complainant in this action.

2. The United States is not a necessary party to the suit. The matter in dispute here is between individuals, and involves simply a question of private right. We cannot see any necessity for making the United States a party to such an action, in the absence of a statute requiring that it shall be done. In answer to the suggestion that the United States is interested in the question to whom the land in controversy shall be allotted, and unless made a party to the action will not be bound by the decree, it is sufficient to say that the United States has, by the statute from which the above quotation is made, provided that a controversy of this character may be determined by an appropriate action in the circuit court, and that the decree therein shall have the same effect as an allotment allowed and approved by the secretary of the interior. An allotment made by or under the direction of the secretary of the interior entitles the allottee to a patent for the land allotted to him. Section 1, Act March 3, 1885

(23 Stat. 340). The provision in the statute that the decree of the court in an action like this shall have the same effect as an allotment made by the secretary of the interior gives to the successful party the right to a patent for the land allotted to him by the decree, and is in effect a consent upon the part of the United States to be bound by such decree and to issue its patent in accordance therewith.

3. We now proceed to inquire whether the decree of the circuit. court is right upon the merits. The complainant is an Indian woman of full blood, a member of the Walla Walla tribe of Indians. In the year 1887 she, with the consent of the chiefs of the Walla Walla and Cayuse Indians, selected the land in controversy with the intention of having the same allotted to her under the act of March 3, 1885 (23 Stat. 340), and she and her husband improved it by the erection thereon of a granary and two barns, and also inclosed it, together with other lands selected by her for her family. The total value of these improvements, when made, was about $700. The land was allotted to defendant in the year 1891. He did not have possession thereof at the time, or any improvements thereon. When the allotment was made the complainant was in possession of the land in controversy, although she and her family were actually residing upon other land, with which it was inclosed. Prior to its allotment to defendant, the complainant requested the commissioners appointed for the purpose of making allotments of land on the Umatilla reservation to allot the same to her; but they refused so to do because her name was not upon the census list of persons entitled to an allotment, and this action was approved by the depeartment of the interior. It also appears that the census list was completed on June 7, 1887, and complainant was at that time living outside of the reservation upon lands which members of her tribe had been accustomed to occupy for hunting and fishing, and she did not take up her actual residence upon the reservation until shortly after the census was taken. At the time of receiving the allotment of the land in controversy, the defendant had notice of all these matters. The complainant continued in possession of said land until the fall of 1896, when she removed therefrom in obedience to orders given her by the Indian agent in charge of the Umatilla Indian reservation. In April, 1897, the secretary of the interior decided that complainant was entitled to an allotment of land on the Umatilla Indian reservation, and in pursuance of that decision certain lands were allotted to her, and she accepted the same, after being informed by the Indian agent that in his opinion such acceptance would not prejudice her right to the land in controversy. Since that time she has leased a portion of the land so allotted to her and received a stipulated rent therefor. Upon these facts we entertain no doubt of the justice of the decree of the circuit court. Under the act of congress of March 3, 1885 (23 Stat. 340), it is provided that:

"All allotments to heads of families, and to children under eighteen years of age belonging to families, shall be made upon selections made by the heads of the family, and allotments to persons over eighteen years of age not classed as heads of families shall be made upon the selection of such persons."