tition, in which it denied each and every allegation therein contained. The case was duly tried before the court, which found as facts that the claimant was at the time of the loss of his property, and ever since has been, a citizen of the United States, and that in the year 1868 he was the owner of the property described in his petition, and that it was of the total value of $1,390; that it was destroyed or taken from him by Indians belonging to the Indian tribes, at the time in amity with the United States, and the depredation was without just cause or provocation on the part of claimant, and that it did not appear at the time of the depredation that any Indian troubles existed; that no part of the property included in the computation had been returned or paid for. Upon these findings the court decided as conclusions of law that the plaintiff was entitled to recover from the United States the value of the property, $1,390, and that his petition as against the Comanches and Kiowas should be dismissed. Judgment was accordingly entered against the United States for the sum named, and for a dismissal against the Indians. A motion by the United States for a new trial was overruled, and thereafter an appeal was allowed to this court. ed below in 29 Ct. Cl. 97. Report The appellant assigns for errors of fact: (1) That the court erred in finding that claimant's property was taken or destroyed by Indians belonging to Indian tribes at the time in amity with the United States. (2) In finding that the depredation was committed without just cause or provocation on the part of the claimant or his agent. (3) In finding that it does not appear that any Indian troubles existed at the time of the depredation. Errors of law are assigned: (1) That the court erred in its conclusion of law that the claimant should recover from the United States the sum of $1,390; and (2) It erred in entering judgment against the United States. Alex. Porter Morse, for the United States. John Wharton Clark, for appellee. Mr. Justice PECKHAM, after stating the facts in the foregoing language, delivered the opinion of the court. There is here but a single question for this court to review, and that relates to the right of the court of claims to render judgment against the United States alone under the Indian depredation act where the tribe of Indians to which the depredators belong cannot be identified, and such inability is stated and judgment rendered against the United States only. The act in question is entitled "An act to provide for the adjudication and payment of claims arising from Indian depredations," approved March 3, 1891. 26 Stat. 851, c. 538. Under that act jurisdiction is conferred upon the court of claims to inquire into and finally adjudicate, in the manner provided in the act, first, all claims for the property of citizens of the United States taken or destroyed by Indians belonging to any band or tribe or nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and not returned or paid for. The second section of the act waives all questions of limitation as to the time and manner of presenting such claims, provided that no claim accruing prior to July 1, 1865, is to be considered by the court unless the claim shall be allowed, or has been or is pending, prior to the passage of the act, before congress, or before the other officers named therein. The third section provides that all claims shall be presented to the court by petition setting forth the facts upon which such claims are based, "the persons, classes of persons, tribe or tribes, or band of Indians by whom the alleged illegal acts were committed, as near as may be, the property lost or destroyed, and the value thereof, and any other facts connected with the transactions and material to the proper adjudication of the case involved." The fourth section provides for service of the petition upon the attorney general of the United States, and makes it his duty to appear and defend "the interests of the government and of the Indians in the suit." It provides for the filing of a proper plea by the attorney general, and that in case of his neglect to do so the claimant may proceed with the case, but he "shall not have judgment for his claim or for any part thereof unless he shall establish the same by proof satisfactory to the court." The fifth section provides, among other things, "that the court shall determine in each case the value of the property taken or destroyed at the time and place of the loss or destruction, and, if possible, the tribe of Indians or other persons by whom the wrong was committed, and shall render judgment in favor of the claimant or claimants against the United States, and against the tribes of Indians committing the wrong when such can be identified." The sixth section provides that the amount of the judgment rendered against any tribe of Indians shall be charged against the tribe by which, or by the members of which, the court shall find that the depredation was committed, and shall be deducted*and paid in the following manner: "First, from annuities due said tribe from the United States; second, if no annuities are due or available, then from any other funds due said tribe from the United States, arising from the sale of their lands or otherwise; third, if no such funds are due or available, then from any appropriation for the benefit of said tribe other than appropriations for their current and necessary support, subsistence and education; and fourth, if no such annuity, fund, or appropriation is due or available, then the amount of the judgment shall 218. 320 be paid from the treasury of the United States: provided, that any amount so paid from the treasury of the United States shall remain a charge against such tribe, and shall be deducted from any aunuity, fund, or appropriation herein before designated which may hereafter become due from the United States to such tribe." The eighth section provides "that immediately after the beginning of each session of -congress the attorney general of the United States shall transmit to the congress of the United States a list of all final judgments rendered in pursuance of this act in favor of claimants and against the United States, and not paid as hereinbefore provided, which shall thereupon be appropriated for in the proper appropriation bills." The tenth section provides for an appeal by the claimant, or the United States, or the tribe of Indians, or other party thereto interested in any proceeding brought under the provisions of the act. The scheme of the act is to provide payment to the citizen for property destroyed under the circumstances stated in the first section, and, where the Indians can be identified, to make them, through the funds coming to them from the government, pay back to it the amount it pays by reason of the property so destroyed. We think the liability of the government to pay, upon proof of the facts set forth in the first section, was not intended to be dependent upon the ability of the claimant to identify the particular tribe of or the individual Indians who committed the depredations. If the identification could be made, they were to repay the government, but the indemnification of the citizen was not to be dependent upon that fact. When this case was before the court of claims, it received the very careful attention of that court, and scarcely anything can be added to its well-considered opinion, delivered by Judge Nott, in directing judgment against the United States, and dismissing the petition against the Comanche and Kiowa Indians. In conferring jurisdiction in this class of cases upon the court of claims, it will be seen that congress conferred it in regard to all claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe, or nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge. So long as the depredations were committed upon the property of citizens of the United States, and by Indians in amity with the government, without just cause, etc., jurisdiction and authority to inquire into and finally adjudicate upon such claims were granted to the court. This broad ground of jurisdiction would, unless circumscribed by the subsequent provision of the act, permit an adjudication against the United States alone. There is nothing in any other portion of the act which provides in terms for joining as co-defendants with the United States the tribes or bands of Indians by whom the alleged illegal acts were committed. The third section of the act merely provides for the contents of the petition, and by such section it is made the duty of the petitioner to state in his petition "the persons, classes of persons, tribe or tribes, or band of Indians by whom the alleged illegal acts were committed, as near as may be," etc. This is for the obvious purpose of giving some notice to the government of the alleged facts upon which the claim is based, so that the proper defense, if any exist, may be made to the claim. Section 4, among other things, grants the right to any Indian or Indians interested in the proceedings to appear and defend by an attorney employed by such Indian or Indians, with the approval of the commissioner of Indian affairs, if he or they so choose to do; but, if no such appearance is made, it still remains the primary duty of the attorney general, under the provisions of the same fourth section, to appear and defend the interest of the government and of the Indians in the suit, and no claimant can have judgment for his claim, or any part thereof, unless he shall establish the same by proof satisfactory to the court. Taking into consideration that by the fifth section it is the duty of the court to determine in each case, "if possible, the tribe of Indians or other persons by whom the wrong was committed, and to render judgment in favor of the claimant or claimants against the United States and against the tribe of Indians committing the wrong, when such can be identified," it may be fairly claimed that, reading all the provisions together, the act makes it necessary, when known, to join with the United States the Indians or tribe of Indians by whom the illegal acts are alleged or are supposed to have been committed. Although the fourth section provides for the defense of the claim by the law officer of the government under any circumstances, yet, as the interest of the Indians is embraced in the inquiry before the court because of their liability to a judgment against them if identified, and to a payment of that judgment out of the annuities or otherwise, as provided for in the sixth section, it is proper to allow them to appear and defend also by their own attorney. But the fifth section provides for judgment in favor of claimant and against the United States in any event, where the property of a citizen has been destroyed under the circumstances provided in the statute, but only against the tribe of Indians committing the wrong "when such can be identified"; and of course it follows that, if they cannot be identified, no judgment can go against them. The United States would then be left as alone responsible for the property destroyed, provided the proofs were of the character mentioned in the first section of the act; that is, the claimant would be bound to prove that he was a citizen of the United States at the etime of the taking or destruction of his property; that it had been taken by Indians belonging to some band or tribe or nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and that it had not been returned or paid for. Unless it can be asserted that it is impossible to make out a cause of action for such destruction of property by the class of Indians mentioned in the first section, without identifying such class as mentioned in the fifth section, we can see no objection to a recovery against the United States alone in this case. We do not think that it is impossible to prove facts of the nature set forth in the first section, although they may have occurred under such circumstances as to prevent identification of the particular tribe or band of Indians committing the illegal act. The circumstances of the case might show beyond any reasonable doubt that the property had been destroyed by Indians; that it was at the time so situated, with regard to various bands of Indians, all of whom were in amity with the United States, as to make it impossible to identify the particular band to which the Indians belonged who committed the depredation; but that from the facts it could not be successfully questioned that the Indians of one or the other of these bands had committed the depredation. Under such circumstances we think the claimant would bring his cause within the provisions of the act in question. He would have proved that his property had been destroyed by Indians belonging to a band or tribe in amity with the United States, but which of several bands of that description he would be unable to identify. Consequently, the judgment would go against the United States, but not against any particular band, because of the failure of the proof. We think, after a careful examination of the whole act, that the court of claims was right in entering judgment against the United States alone. The claimant having died pending the suit, the question as to the appointment and appearance of an administrator may be dealt with in the court of laims. The judgment of that court is therefore affirmed. preme court, so that the latter alone is au thorized to determine all questions as to its ju. risdiction, and as to the form of the writ, the parties, citation, and service, or otherwise. 2. A receiver of an insolvent national bank, appointed by the comptroller of the currency, is the agent of the United States, and not an agent or officer of any court; nor does he, by filing a petition in a federal court, under Rev. St. 5234, for leave to sell property of the bank, or to sell or compound bad or doubtful debts, place the assets of the bank in the custody of the court, in the sense in which it has the custody of property in the hands of a receiver appointed by itself. 3. A stockholder of an insolvent national bank may bring a suit in a state court, in behalf of the bank and himself, as a representative stockholder, against the directors, to recover money alleged to have been lost through their negligence and breach of trust, when the bank's officers, the receiver, and the comptroller of the currency have all refused to bring such a suit. 4. A duly-elected "agent," who is substituted, under the act of June 30, 1876 (19 Stat. 63), as amended by the act of August 3, 1892 (27 Stat. 345), for the receiver of an insolvent national bank, to complete the winding up of its affairs, proceeds with like authority to that of the receiver, and is not an officer of the circuit court, though he is required by the statute to render an account to it of all his proceedIngs, expenditures, etc., and he and his sureties are finally discharged by its order. 5. That a receiver of an insolvent national bank has applied to the proper circuit court for authority to sell assets, and that thereafter an agent has been appointed, under 19 Stat. 63, as amended by 27 Stat. 345, to succeed the receiver, gives that court no authority to en join a stockholder in the bank from prosecuting actions in the state courts, in behalf of the bank, against its directors, or against using the bank's name in writs of error sued out from the United States supreme court to review the judgments of the state supreme court in such actions. 6. While, under the authority given to the federal courts to issue "all writs which may be agreeable to the usages and principles of law" (Rev. St. § 716), certiorari has ordinarily been used merely as an auxiliary process, yet when the circumstances imperatively demand it, the writ may be allowed by the suprem court, as at common law, to correct excesses of jurisdiction, and in furtherance of justice. 7. Judgments in contempt proceedings are not reviewable by the supreme court on erroz or appeal, but may be reached, in cases of excess of jurisdiction, by certiorari, in the absence of other adequate remedy. This is a petition for the vacating of or prohibition upon certain orders of the circuit court of the United States for the Northern district of California in the suit of Stateler v. Bank, 77 Fed. 43, enjoining (as was. held) the bank and John Chetwood, Jr., from, *prosecuting a writ of error from this court in the name of the bank as plaintiff in error, directing Chetwood to dismiss a second writ of error from this court, and punishing Chet wood and E. G. Knapp. of counsel, as for a contempt of the circuit court in suing out said writs of error. Leave was granted to file the petition, and a rule to show cause was entered thereon, to which return was made. The facts necessary to be considered appear to be as follows: In October, 1886, the California Nationa Bank of San Francisco was organized under the national banking laws, with a paid-up capital stock of $200,000, and petitioner became and remains a stockholder therein. In December, 1888, the bank became insolvent, and the comptroller of the currency on January 14, 1889, appointed one S. P. Young receiver thereof. July 19, 1890, petitioner began his suit in equity in the superior court of the city and county of San Francisco against the bank, Richard P. Thomas, Robert R. Thompson, Robert A Wilson, and S. P. Young, as receiver, "and therein and thereby, on behalf of said bank and himself, as a representative stockholder therein, specially set up and claimed the right to hold said defendants Thomas, Thompson, and Wilson, as officers and trustees and directors of said bank, accountable to it in equity, under and in pursuance of the statutes and laws of the United States, for sundry breaches of their trust as such officers, directors, and trustees," etc. Thomas was the president, and, with Thompson and Wilson, formed the executive committee of the board of directors, of the bank. The complaint set forth the by-laws with respect to the separate duties and liabilities of the president and said executive committee, and charged gross negligence against each of them in discharge thereof, whereby the bank, through the fraudulent acts of its cashier in making excessive and unsecured loans and advances, was rendered insolvent; and plaintiff prayed a "joint and several money judgment against them, the said Richard P. Thomas, Robert R. Thompson, and Robert A. Wilson, for the sum of $400,000, with legal interest thereon from the time of such loss, and costs herein, be rendered and entered by this court in this case in favor of said corporation, the California National Bank of San Francisco, and that said corporation and this plaintiff do have such further order, decree, judgment, and relief as may be meet and agreeable to equity." The complaint further averred, and it was so found on the hearing of the case, that Chetwood had, prior to the commencement of such suit, requested the officers of the bank, the receiver thereof, and the comptroller of the currency, severally, to bring and prosecute the same against the alleged delinquent officers, which requests were refused. It appears from an affidavit attached to the return that "the receiver when so made a defendant, and as such served with process, answered, and followed his refusal to bring the suit by opposition and hostility thereto." On April 27, 1894, the trial court ordered judgment in favor of the plaintiff, for the benefit of the bank, against Thomas, Thompson, and Wilson, and referred the case to a referee to examine and report in respect of the amount for which judgment should be entered. The referee reported to the court a total loss of $166,919 suffered by the bank by reason of the acts and omissions of the defendants, but not the amount for which each was severally responsible. Thereafter Thompson and Wilson paid into court $27,500, whereupon the court made an order dismissing them from the suit, and on November 20, 1894, rendered judgment for the plaintiff for the use and benefit of the bank, against Thomas, for $139,419, with interest at 7 per cent. per annum from December 15, 1888; being for the sum of $166,919, reported by the referee, less the $27,500 paid by Thompson and Wilson. Thomas appealed from this judgment to the supreme court of California, and that court held that the dismissal of Thompson and Wilson was a retraxit, and operated in law as a full satisfaction of the cause of action, and upon that ground reversed the judgment against Thomas, and entered a personal judgment against Chetwood for costs, etc. 45 Pac. 704. To review that judgment a writ of er-* ror was sued out from this court, bearing date September 24, 1896. This writ of error was allowed by Mr. Justice Field, who approved a bond and signed a citation running in the name of the California National Bank of San Francisco, as plaintiff in error, to Richard P. Thomas, as defendant in error, service of which on Thomas, Stateler, S. P. Young, and R. A. Wilson was accepted. Chetwood also accepted service, but asked that he be entered as a plaintiff in error, and that for that purpose the writ of error be amended. The case was docketed by the clerk of this court as No. 673, under the ttle of "California National Bank of San Francisco v. Richard P. Thomas." The receiver of the bank never authorized or aided in the prosecution of the suit, nor claimed nor attempted to take control or possession thereof, nor of the judgment entered therein, nor of any part of the $27,500 paid into the state court by Thompson and Wil son. The comptroller of the currency in July, 1894, had paid all the creditors of the bank whose claims had been proven or allowed, except shareholders who might have been creditors of the bank, together with all the expenses of the receivership; and, the redemption of the bank's notes having been provided for by deposit of lawful money therefor with the United States treasurer, a meeting of the stockholders of the bank was called pursuant to the act of August 23, 1892 (27 Stat. 345), at which Thomas, holding 960 shares of the stock, and controlling 60 shares more, threw, as is alleged, 1,020 votes--being a majority-in favor of discontinuing the receiver, and of the selection of T. K. Stateler, as agent of the bank, to succeed the receiver, Young, in the settlement of its affairs. Stateler was thereupon declared elected (Chetwood protesting), and on February 26, 1895, the comptroller and the receiver executed an assignment of all assets of said bank then in their hands, or subject to their order or control, to said Stateler. On March 19, 1895, and pending the appeal of Thomas in the supreme court of the state, Stateler voluntarily appeared in the superior court of San Francisco, and moved for an order directing that so much of the $27,500 as then remained in that court be paid over to him, which motion was resisted by petitioner and denied by the superior court. From this order Stateler appealed to the supreme court of the state, which reversed it, and directed that the money be paid over to him. 45 Pac. 854. Petitioner thereupon sued out a writ of error from this court, which was allowed by the chief justice of California, citation duly issued and served, bond approved, and, as the money was in the custody of the superior court and drawing interest, the writ was made a supersedeas. The record was filed in this court, and the cause docketed as No. 674. This writ bears date October 17th, and appears to have been allowed October 22d. January 4, 1896, while both the appeals of Thomas and Stateler were pending in the supreme court of the state, and undetermined, Stateler filed an original bill in the circuit court of the United States for the district of California against the bank and Chetwood; alleging that as such agent he was an officer of the United States, and that he had sole power to act for the bank and its shareholders, to the exclusion of the stockholders, directors, and officers thereof. This bill contained, among other allegations, the following: "Your orator further avers that heretofore, to wit, on the 21st day of February, 1889, and prior to the commencement of any of the suits herein before mentioned, S. P. Young, the receiver of the defendant banking association, did file in this honorable court a petition entitled 'In re Application of Receiver of the California National Bank for the Sale of Personal Property,' and which said petition, among other things, recited that said California National Banking Association had been duly adjudged insolvent by the comptroller of the currency of the United States; that the petitioner therein had been by said comptroller duly appointed the receiver of such association, and that said petitioner had duly qualified as such receiver, and entered upon the performance of the duties of his office, and that, as such receiver, there had come into his possession certain personal property of said banking association, and thereupon, in and by said petition, the said receiver of* said banking association thereupon submitted himself and the affairs of said banking association to the jurisdiction of this honorable court, as provided by the national banking laws of the United States and the amendments thereof, and thereupon asked for and obtained from this honorable court an order authorizing him to sell the property described in said petition, and to apply the proceeds thereof as provided by law, and that the filing of said petition was a necessary step in the winding up of the affairs of said defendant banking association; that thereafter, and from time to time, the said receiver did obtain from this honorable court orders directing him to sell various pieces of property belonging to said banking association, and to compromise various debts due to said banking association, and did, as such receiver, institute in this honorable court suits to collect moneys due said banking association, all of which said proceedings and suits were necessary steps in the winding up of the affairs of said defendant banking association, and, as such receiver, did, in every way, and as provided by the Revised Statutes of the United States and the amendments thereto, hold himself amenable to the orders of this honorable court. And your orator avers that the jurisdiction of this honorable court over the affairs of said defendant banking association did attach on the 21st day of February, 1889, as aforesaid, and that the affairs of said defendant banking association have never been wound up, but that your orator is now engaged in winding up the affairs of said defendant banking association, and that it will be necessary for him to bring various suits to collect the outstanding assets of said association, and, among others, a suit against the defendant John Chetwood, Jr., to recover the moneys so as aforesaid due and owing from him to the defendant banking association, and that it is necessary for him to bring this suit, and to obtain the relief herein prayed for, so that he can proceed to wind up the affairs of said defendant banking association without further interference from the defendants John Chetwood, Jr., or the alleged board of directors of said insolvent association." The prayer was for a decree adjudging that complainant "is"the duly elected, qualified, and acting agent of the defendant bank, to wit, the California National Bank of San Francisco, and, as such, exclusively entitled to have and receive in his custody and under his control all the moneys and property of said bank, and to collect the outstanding indebtedness due to said bank, whether the same be evidenced by open accounts, bills, notes, or judgments of record, to the end that the affairs of the bank may be wound up, its property converted into money, and its money distributed among its shareholders, as provided by the national banking laws of the United States; that all the acts of the defendant banking association through its alleged board of directors, as herein set forth, since the appointment of a receiver to take charge of its affairs, as herein set forth, be adjudged null and void, and that its board of directors has no authority to take any action touching the affairs of the association; that the said bank, its board of di |