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clusive control and direction, to the same extent that we held such power was possessed by the board of regents in the Sterling Case above referred to.

The writ is denied, but without costs.

OSTRANDER, C. J., and MCALVAY, J., concurred with BLAIR, J.

MOORE, J. I concur in the result, but do not regard mandamus as the proper remedy.

HOOKER, BROOKE, and STONE, JJ., concurred with MOORE, J.

BIRD, J. I concur in the result on the sole ground that mandamus is not the proper remedy.

COWHAM v. SHIPMAN.

ACCOUNTING-PARTNERSHIP.

In a suit by the administrator of one deceased partner for an accounting against the other partner, who acted as attorney for certain Indians having claims against the United States, and who secured an appropriation by congress, after considerable litigation, by which the claims were paid,-under evidence showing that the Indians who shared in the fund appropriated were in part identical with those who engaged defendant as attorney for a commission, an accounting is required, on appeal, of the share of complainant as agreed between the partners, based upon the total amount collected, instead of the amount which defendant claimed was actually paid to the portion of Indian claimants who first employed him.

Appeal from Branch; Yaple, J. Submitted November 17, 1910. (Docket No. 63.) Decided February 1, 1911.

Bill by William F. Cowham, special administrator of the estate of Edward Twiss, deceased, against John B. Shipman for an accounting. From a decree for an insufficient amount, complainant appeals. Reversed.

Thomas E. Barkworth, for complainant.

Mark S. Andrews, for defendant.

BLAIR, J. An accounting has been had in this cause pursuant to the decree in Cowham v. Shipman, 151 Mich. 673 (115 N. W. 991). The account stated by defendant was as follows:

Amount of the appropriation...

Number of Indians to be distributed among..272
Share of each Indian therein.....

Number of Indians paid who were parties to

said contracts....

$78,329 25

287 971

22

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The circuit judge, before whom the account was taken in open court, found the account as stated by defendant to be correct, and decreed payment to the complainant of the said sum of $105.59. From this decree, complainant appeals to this court.

Under our decree in the principal case the question of fact for consideration upon the accounting was: What was the amount of the commissions received from the Indians who were parties to the first two contracts made by Twiss and defendant? The defendant testified, in accordance with the account as stated by him, that there were only 22 Indians paid out of the appropriation who were parties to said contracts, basing his testimony upon an examination of certain powers of attorney procured from the Indians and filed in the office of the clerk of the court of claims. This testimony was taken under objection that it was not the best evidence. Defendant also testi

fied as to the two contracts referred to in the original case as follows:

"That these contracts were thrown out by the department because it did not appear that they were signed by anybody who had authority to bind the Indians who were named as parties in the contract. They were of no use whatever, and never were used by me in any case in any way, shape, or manner, except to the extent that they were ratified in these little powers of attorney that I spoke of before, by which and under which I commenced suit in the court of claims wherein final judgment was rendered on something over $100,000, and ultimately where the government paid $156,000. I do not recollect the exact date that the suit was commenced. However, that is the one, and that is just the suit and the only suit, and the only place where those contracts were used, or that I could use them successfully in the department, and I could use them there only as to the extent that they had been ratified by the Indians."

Complainant put in evidence the claimants' requests for findings of fact filed November 26, 1900, by defendant as attorney for claimants in the court of claims of the United States in the claim of Phineas Pam-To-Pee v. U. S., Ct. Cl. 427. A portion of these requests is as follows:

36

"(1) To judicially determine the claim of certain Indians against the United States, congress passed an act entitled 'An act to ascertain the amount due the Pottawatomie Indians of Michigan and Indiana,' approved March 19, 1890 (26 U. S. Stat. at Large, p. 24, chap. 39), under which two suits were commenced in this court; one entitled 'The Pottawatomie Indians of Michigan and Indiana v. The United States, No. 16,743,' and the other 'Phineas Pam-To-Pee and 1,371 other Pottawatomie Indians of Michigan and Indiana v. The United States, No. 16,842. Opinion in 27 Ct. Cl. 403. *

* *

"(3) On motion of the defendants, the two cases were consolidated and tried as one, and judgment entered therein June 27, 1892, in favor of a portion of the Indians who were claimants and against the United States for $104,626, that being their portion of the annuities due and unpaid them up to that date under the twelve treaties mentioned in the petitions, but also establishing thereby their right to the annuities to grow due thereunder as well, which judgment

was affirmed in the Supreme Court on the claimants' appeal. 27 Ct. Cl. 403; 148 U. S. 691 (13 Sup. Ct. 742 ).

"(4) The parties in whose favor said judgment was rendered are Indians who were in both of said suits as petitioners and claimants therein, a portion being in case No. 16,743, and another portion as claimants in case No. 16,842. 27 Ct. Cl. 403, finding 12.

*

"(7) The claimants in this cause are a portion of the Indians in whose favor the judgment mentioned was rendered. Rec. 34 to 87. 27 Ct. Čl. 403.

"(8) The total number of Indians recovering said judgment and entitled to share in its payment was 544, of whom 272 are claimants in this case. Rec. 25, answer

16; Rec. 34 to 87; Brief, pp. 12 to 20.

*

"(14) The names of the 272 claimants in this cause who received nothing upon said judgment, nor were paid any part of the fund appropriated to pay it, are contained and described in Schedule A hereto annexed.

“(15) $78,329.25 of the moneys appropriated by Congress to pay said judgment and the annuities thereby established, as stated in the ninth request, belong to the 272 claimants mentioned in request 14, and is wrongfully withheld from them by the defendant, the amount belonging to each being $287.97."

Complainant also relies upon the proceedings relative to said claim before the court of claims and as reviewed by the Supreme Court of the United States. See PamTo-Pee v. U. S., 27 Ct. Cl. 403; Id. 36 Ct. Cl. 427; Id. 148 U. S. 691 (13 Sup. Ct. 742); Id. 187 U. S. 371 (23 Sup. Ct. 142); and the act of congress approved April 21, 1904, providing, in substance:

"To pay to the Pottawatomie Indians of Michigan, whose names are set forth in schedule A, annexed to claimants' requests for findings of fact, as stated and found by the court of claims in finding 4, in the case of Phineas Pam-To-Pee and others against the United States, reported in the thirty-sixth court of claims reports at page four hundred and thirty, there is hereby appropriated, out of any money in the treasury not otherwise appropriated, the sum of seventy-eight thousand three hundred and twenty-nine dollars and twenty-five cents, the secretary of the interior to distribute and pay the same to the Indians respectively mentioned in said schedule A, and if

any of them have died, then the sum or share that would have been paid to such Indian or Indians, respectively, if living, the secretary shall pay to the heirs or legal representatives of each of those dead, such payments, when made, to be in full for any and all claims which said Indians may have under or by virtue of the treaty and articles supplementary thereto, made with the Pottawatomie Indians September twenty-sixth and twenty-seventh, eighteen hundred and thirty-three, and duly proclaimed February twenty-first, eighteen hundred and thirty-five, said sum to be immediately available.”

Finding 4 of the court of claims referred to was as follows:

"4. None of the Indians, parties in or represented by the present suit, were paid as aforesaid. A large number of them, to wit, 272, whose names are set forth in schedule A annexed to claimants' requests for findings, were descended from Indians whose names were enrolled on the rolls of Indians in Michigan in the years 1843, 1844, and 1866. A portion of the Indians who remained in Michigan as coming within the exemption of the treaty of September 27, 1833, were represented in both petitions in the cases of the Pottawatomie Indians v. United States and the Pam-To-Pee Indians v. United States."

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The two contracts contained the names of numerous Indians. As will appear from the cases referred to, defendant filed his first petition in the court of claims November 5, 1890, in the name of Phineas Pam-To-Pee and 1371 other Indians, and in his petition, which was verified by defendant, he showed "that your petitioners number 1372 and their names and residences are as follows,' etc., and in his verification of the petition defendant "made oath that he is the authorized attorney of the Indians named as petitioners in the foregoing petition in the matters above mentioned." Defendant, having failed to secure through the distribution ordered by the court of claims in the first suit the amount to which he was entitled, instituted the second suit (36 Ct. Cl., supra), and it was in this suit that the request for findings of fact was filed which complainant introduced in evidence on the

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