acterized the means employed in obtaining or taking from those natives the possession of lands occupied by them. And with a view to the protection of their rights in that respect, the means by which the release or extinguishment of such interest might be produced has constantly been under the supervision of the sovereign or governmental power within which the lands are situated, and regulated by rules or laws emanating from it. The treaty of 1783 with England had the effect to vest in the people of the states, respectively, the fee, which before was in the crown, of the lands within their limits, subject to the right then existing of the Indians to occupy the lands in their possession. And those states respectively then possessed the power to supervise and regulate the manner and method by which their right of occupancy might be released or extinguished. Johnson v. McIntosh, 8 Wheat. 543; Mitchel v. U. S., 9 Pet. 711. Inasmuch as the general government never had title to the lands within the original 13 states, it is contended that it acquired no power to extinguish the Indian title within them, but that such power was exclusively under the control of the states, in which was vested the ultimate fee. And reference is made to the remark of Mr. Justice BALDWIN in Mitchel v. U. S., supra, 748, that "it was a universal rule that purchases made at Indian treaties, in the presence and with the approbation of the officer under whose direction they were held by the authority of the crown, gave a valid title to the lands. It prevailed under the laws of the states after the revolution, and yet continues in those where the right to the ultimate fee is owned by the states or their grantees.", This power undoubtedly was exclusively in those states respectively, prior to the adoption by them of the constitution of the United States, before which time the treaty between the states of Massachusetts and New York was made; and after the adoption of such constitution that treaty was duly ratified by the United States. If the means provided by that treaty for the extinguishment by purchase of the Indian title were adequately operative at the time the treaty of 1826 was made, the latter would seem to have been apparently effectual to produce such result, without the aid of any ratification of the senate of the United States, as the provision of the former treaty in that respect seems to have been observed in the making of the latter. At the time of the adoption of the federal constitution the ultimate fee of this land was in the commonwealth of Massachusetts; and by the adoption of such constitution it surrendered to the congress of the general government the power "to regulate commerce with foreign nations and among the several states and with the Indian tribes," (Const. art. 1, § 8,) and to the president the power, by and with the advice and consent of the senate, to make treaties, (Id. art. 2, § 2,) which should be the supreme law of the land, (Id. art. 6.) Since then the Indians in the original as well as in the other states and territories have been treated as the wards of the general government, and the power of congress over the subject of their rights, and for the protection of them in their ancient possessions, is recognized. Their rights in that respect are deemed guarantied to them by the federal government, and the power of the states to impair, or by legislation to permit in any manner the extinguishment of, the Indian title in aid of the owners of the right of pre-emption, is denied to them. The New York Indians, 5 Wall. 761. The remark before mentioned of the learned justice in Mitchel v. U. S. was designed as historical, rather than judicial, as applied to that case, and it may not be treated or adopted as the declaration of a legal rule in its application to the power of the states there referred to, after the adoption of the constitution. But inasmuch as the treaty between Massachusetts and New York was duly ratified by the United States, its provisions in that respect prescribed the manner in which it might effectually be done; and it was not impaired by the treaty of 1794, made between the United States and the six nations, (of which the Seneca Nation was one,) which, after reciting the boundaries of the lands occupied by the Seneca Nation, in which were embraced those cov

ered by the treaty or conveyance of 1826, declared that the United States acknowledged the land within such boundaries to be the property of the Seneca Nation; that the United States would never claim it or disturb the Seneca Nation, nor any of the six nations, or any of their Indian friends residing thereon, and united with them in the free use and enjoyment thereof, "but it shall remain theirs until they choose to sell the same to the people of the United States, who have the right to purchase." This right of pre-emption was in Troup and his associates in the treaty of 1826 at the time it was made, and they alone then had the right to purchase from the Indians the land embraced in it. We therefore think that such last-mentioned treaty was effectual as a sale and purchase, unless to render it such something more was required by the act of congress of March 30, 1802, which provided that no purchase of any title or claim to lands from any Indian or nation or tribe of Indians within the bounds of the United States shall be of any validity unless made by treaty or convention entered into pursuant to the constitution, and that it should be a misdemeanor in any person not employed under the authority of the United States to negotiate with any such Indian nation or tribe of Indians for the title or purchase of any lands held or claimed by them, “provided, nevertheless, that it shall be lawful for the agent or agents of any state, who may be present at any treaty held with the Indians under the authority of the United States, in the presence and with the approbation of the commissioner or commissioners of the United States, appointed to hold the same, to propose to and adjust with the Indians the compensation to be made for their claims to lands within such state which shall be extinguished by the treaty." 2 U. S. St. at Large, 143; Brightly's Dig. 433. The negotiation and making with the Indians of the treaty of August, 1826, came within the provisions of this proviso of that act, which seem to have been observed, as the treaty was attended by and had the approbation of a commissioner of the United States appointed for the purpose, and, pursuant to the laws of Massachusetts, by a superintendent appointed by that commonwealth. While the treaty was properly made with the Indians, the provision of the statute that, for the purposes in view, it be entered into pursuant to the constitution, we think was not modified or dispensed with by the proviso in the cases there referred to. While in the states the negotiation and treaty might be had and made with the Indians in the manner mentioned, the constitutional requirement was made applicable for the consummation of all treaties of that character. This construction is apparently within the purpose of the statute, and in harmony with the protecting policy of the general government in that respect. It seems also to be wisely so provided as a safeguard against possible abuse, prejudice, and wrong to which those people might otherwise be subjected or suffer by the extinguishment which they may have been induced to make or permit of their interest in lands occupied by them. These views lead to the conclusion that ratification by the senate was essential to the validity of the treaty of 1826. And therefore the defense would fail if it depended solely upon such treaty, and its effect as such. It may be that the senate had a different view of the construction of the statute of 1802, but the reasons for the last resolution adopted by the senators do not sufficiently appear to furnish any aid in the consideration of the question.

It appears that at the time the treaty was made, the Indians were advised that their grantees had the right of pre-emption from them, and that they immediately surrendered and abandoned the possession to them of the lands described in it, and since then, until about the time of the commencement of this action, during the period of about 60 years, they in no manner asserted or made any claim to the land or the possession of it. But in view of the known habits of Indians they may not be supposed to represent their occupation or possession by improvements or inclosures of all or great portions of their lands. They may use them to considerable extent for the purposes of

roaming and hunting, more or less frequently, as they please. And what might appear to be a cessation of actual occupation and use might not necessarily be such an abandonment as would extinguish their right of occupancy, and support that of those having the fee of the lands. And ordinarily that question might be dependent upon a judicial determination in a proceeding or action having in its purpose and effect that of the common-law writ of office. 3 Bl. Comm. 257, 258. But in this case the abandonment and surrender were not only practically made, but have been characterized by such circumstances and by such recognition, not only by the Indians, but by the government, in such manner as to determine the situation, and in legal effect to sever the prior relation of the Indians to the lands from them. The quantity of land covered by the treaty of conveyance was large. Those lands were surveyed, and their boundaries plainly marked. Of the purchase money, $43,050, represented by the stock in the public debt of the United States for that amount, bearing interest at the rate of 6 per cent. per annum, were deposited by the grantees in the Ontario Bank at Canandaigua, in trust for the Indians, upon which, by it, the interest was paid annually to and received by the Seneca Nation of Indians until in the year 1855, when it was transferred to the treasury of the United States, pursuant to an act of congress of 1846, authorizing the president to receive the stock of the public debt, or moneys held by the bank in trust for the Senecas, whenever those Indians or other persons whose consent might be necessary should in proper form authorize the transfer, and to cause the stock to be canceled, and the amount of it and of any moneys which he might so receive to be deposited in the treasury to the credit of those Indians, upon which amount interest at the rate of 5 per cent. per annum should be paid to them, until congress should direct the principal to be paid to the Indians. Such interest has since then pursuant to that act been paid to and received by the Seneca Nation. This provision made by the action of congress for the care of this fund, and for the payment of interest upon it, and the observance of the statutory authority and direction following it, may be assumed to have been made and had with knowledge of the treaty of sale and purchase by which the fund was produced; and they constitute something of a recognition of the treaty and of the apparent effect given to it. It also appears that treaties were made between the Seneca Indians and the United States in the years 1838 and 1842, in which the estimated area of the Cattaraugus reservation was made, and such estimate did not include in it any of the lands covered by the treaty of August, 1826. While it may be said that ratification of what is unlawful may not be established by uncertain implication, (Cox v. Mayor, 103 N. Y. 519, 9 N. E. Rep. 48,) that proposition is not applicable to the question presented here. The treaty of 1826 apparently was not unlawful. It appears to have been lawfully conducted and made, and the only thing wanting to make it effectual was the approval by the senate, which seems to have been required by the act of 1802 before mentioned. The act of congress providing for the governmental protection of the fund derived from the treaty of sale for the benefit of the Indians, which was consummated, goes far towards legislative adoption of the sale and purchase which the treaty purported to make, and we think it is entitled to and has that effect. But however that may be, in view of the conceded fact that upon making the treaty the Indians surrendered and abandoned the possession of the lands to the owners of the right of pre-emption, and in view of the situation following it, and the facts before referred to bearing upon the relations assumed and recognized to exist, as well by gov ernment as by the parties to and represented in the treaty, the conclusion would seem to be permitted that there was an effectual abandonment of the lands embraced in it by the Indians, and that the purchase money agreed to be paid was taken, and it, or the most of it, held by the government in lieu of such lands in trust for the Indians. We do not hold that the Indians

would, by voluntary surrender merely, extinguish their title, and thereby entitle those having the right of pre-emption from them to appropriate the possession of such lands. That would have the effect to defeat the purpose and policy of government; but when by the legislative power of the government such voluntary action is recognized and treated as consistent with the interest of the Indians, and effectual, no reason now appears why it may not be deemed supported. The abandonment in question here was the result of a sale for a consideration paid, and has been so treated by congress and the constituted authorities of the United States for at least nearly 40 years before the time of the commencement of this action; and in the mean time the lands, divided into farms, have been the subject of sales, conveyances, cultivation, and improvement upon the faith of the title so conveyed and taken, assured by an exclusive possession of 60 years, and founded, so far as related to the Indian title, upon the treaty of conveyance before mentioned, and on record in the county where the land is situated. The title of the Indians was possessory, and embraced the right of occupancy only. And when abandoned by them the possession attached itself to the fee of the lands. Johnson v. McIntosh, 8 Wheat. 543; U. S. v. Cook, 19 Wall. 591; Beecher v. Wetherby, 95 U. S. 517. At the time of such abandonment the fee was in the persons composing the Ogden Land Company, under whom through mesne conveyances the defendant is in possession, claiming title to the land in question.

The suggestion that the entire amount of the purchase money was not paid, and that such fact is in the way of supporting the claim to the Indian title, is not sustained. We are not called upon to consider the effect of default in payment of any portion of the purchase money. The treaty recites the payment of it, and as no such question seems ever before to have been raised, or full payment questioned, either by government or the Indians, it must at this late day be assumed, until the contrary is quite clearly made to appear, that the contract in that respect was performed. The plaintiff not being a corporation, and having no such corporate name, could not at common law maintain an action. Strong v. Waterman, 11 Paige, 607. This right, however, was more than 40 years ago conferred by statute, which, among other things, provides that the Seneca Nation of Indians may maintain any action of ejectment to recover the possession of any part of the Allegany and Cattaraugus reservations unlawfully withheld from them. Laws 1845, c. 150, § 1; 4 Edm. St. 375. The further question presented and by counsel discussed is whether the statute of limitations is applicable, and a bar to the plaintiff's right of action. In the view taken the determination of that question is not essential, and for that reason it has no consideration on this review. judgment should be affirmed.

DWIGHT, J., concurs.

The

MATSON . BLOSSOM.

(Supreme Court, General Term, Fifth Department. October 19, 1888.)

1. GAMING-GAMING CONTRACTS-BOHEMIAN OATS NOTE.

A contract for the sale of 34 bushels of Bohemian oats, at $15 per bushel, secured by the buyer's note, payable in 13 months, the seller undertaking, by a bond, to sell for the purchaser, within a year, 68 bushels of like oats, at $15 per bushel, and render to him the proceeds, less 33% per cent. commission, is not a gaming contract, within the meaning of 3 Rev. St. N. Y. (7th Ed.) 1962, rendering all wagering contracts void.

2. CONTRACTS-PUBLIC POLICY.

Such contract is not void, as against public policy, on the ground that the undertaking on the part of the seller cannot be carried out without practicing deception, or is impossible of performance, though it is stipulated that the price is fictitious, for speculative purposes.

3. NEGOTIABLE INSTRUMENTS-FRAUD-BONA FIDE HOLDERS-Province of JURY. The undertaking of the company selling the oats appearing on its face impracticable, and there being evidence that the company was represented to be responsible, and to have a capital of $100,000, while only 10 per cent. of that amount was paid in, and also representations as to profits made by others, and that the plaintiff was not a bona fide holder of the purchaser's note sued on, the case should have been submitted to the jury on the question of fraud, and it was error to direct a verdict for plaintiff.

Appeal from circuit court, Orleans county.

The action was brought against the appellant, Justin Blossom, as maker, and Luther Collamer, as indorser, of a promissory note of date October 26, 1886, for $510, payable to J. M. Orcutt or bearer, in 13 months from its date, with interest. The consideration of the note was a sale to the maker of 34 bushels of Bohemian oats, at the price of $15 per bushel, and the delivery to him of a written instrument, of which the following is a copy: "No.

Capital Stock, $100,000. "HOME OFFICE, YPSILANTI, MICH.

"A Bond from the Bohemiam Oat and Cereal Company. "Incorporated under the laws of the state of Michigan, December 21, 1884. Know all men by these presents, that the Bohemian Oat and Cereal Company do hereby agree to seil 68 bushels of oats for Mr. J. Blossom, at $15 per bushel, in cash, or by note, for which said J. Blossom is to pay 333 per cent. commission for selling, said commission to be paid in notes for which said grain is sold; said grain to be sold on or before October 26, 1887,-the price on this grain being a fictitious value, for speculative purposes. In testimony whereof the said Bohemian Oat and Cereal Company has caused this bond to be signed and sealed by the superintendent of said company this 26th day of October, 1886. This company is not to be held responsible for any outside contracts made by agents other than those expressed on face of this bond. This bond is void without the company seal and signature of superintendent.

[L. 8.]

"J. M. ORCUTT, Superintendent."

Among other matters, is alleged the defense that the note was obtained from the defendant by fraud. The verdict for the plaintiff was directed by the court; and from a judgment entered on the verdict, and an order denying a motion for new trial, defendant appeals.

Argued before BARKER, P. J., and HAIGHT, Bradley, and DWIGHT, JJ. Thomas & Desmond, for appellant. W. E. Hobby, for respondent.

BRADLEY, J., (after stating the facts.) The note and bond having been made at the same time, and pursuant to the same agreement, they must, as between the parties to them, be construed together, and treated as parts of the contract, to the effect (in view of the extrinsic attending facts) that the defendant agreed to and did purchase of the Bohemian Oat & Cereal Company 34 bushels of Bohemian oats, at $15 per bushel, making $510, secured by his note, payable in 13 months; and the company agreed and by its bond undertook to sell for him within 1 year, 68 bushels of like oats, at $15 per bushel, and render to him the proceeds of the sale, less 33 per cent. commission. The first inquiry is whether the transaction itself, represented by what then occurred, was in its character illegal, or as between the parties, for any reason, furnished to the defendant means of defense against liability on the note. The defendant was at liberty to pay or promise to pay that price for the oats; and, if he could find a buyer, to sell oats for a like price, although they were actually worth no more than thirty cents per bushel. He evidently made the purchase, and promised to pay that large price, with a view to the profit he expected to realize out of the contract from the performance by the company of the undertaking of its bond, to sell for him double the quantity of his purchase, at the same price; which, being done before the maturity of his note, would enable him to pay it, and leave him a profit of $170, less the accrued