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and unlawful acts of the defendants thereinafter mentioned. Those acts were a secret effacement of the work done by Pilkey, the taking down of the notice of claim posted on the ground by him, the failure to file a copy thereof, the posting of a claim on the part of the defendants, and the filing of a copy of such notice in the recorder's office on December 13, 1893.
in the plaintiff, assuming its truth; that, in | to do so because of the wrongful, fraudulent, the courts of the United States, an action of ejectment was based upon the strict legal title, and if the plaintiff failed to show that it was in him, he must fail in such action. The defendants now contend that, if the plaintiff have any remedy, it is at law; and also that there is no cause of action stated in the bill. At the time of the trial of this suit, the ejectment action had not been decided by this court, the action having been here decided May 13, 1901. It must be regarded as determined by the decision in that case, that the complainant herein has no remedy at law, and, if he has none in this suit, he is without remedy for the gross fraud set out in the bill. All facts well pleaded in the bill are admitted by the demurrer, and the question, therefore, is whether the bill states facts sufficient to entitle him to relief in a court of equity.
We think the plain import of these averments is that the conspiracy and combination did not become known to the plaintiff until after the expiration of the ninety days from the discovery of the mine, in which to file a copy of the notice posted on the ground, in the recorder's office of the proper county. That is a sufficiently definite averment of time, and it is enough to show that the failure to file a copy of the notice within the necessary time was owing to the action of the defendants.
The court below has held that the bill does not state with sufficient certainty the time Under the agreement first mentioned be when plaintiff discovered the alleged fraud tween plaintiff, Johnson, and Pilkey, as coset forth in the bill, in that it does not ap- partners, it became the duty of Pilkey, in pear by any certain averment that the plain- order to complete the location it was his duty tiff did not discover such fraud before the ex- to make, to file a copy of the notice in the piration of the ninety days after the discov- recorder's office; and the parties to the agreeery of the lode, in which to file a copy of the ment had the right to rely upon Pilkey to file notice of location in the recorder's office, the necessary copy for record; and it is plain which, if he had done, he might, by himself that the failure to file on the part of the filing the copy, have thereby fulfilled all the plaintiff was because of his ignorance of such provisions of the statute relating to the loca- failure on the part of Pilkey, consequent uption and recording of the notice of claim. on Pilkey's fraudulent conspiracy and agreeWe entirely agree with the court below that ment with the other defendants not to file it. the facts constituting the cause of action in After the discovery of the conspiracy, the equity must be distinctly alleged, so that the plaintiff did procure a copy of the original defendant may know what he has to meet, notice posted by Pilkey on the ground, and and so that he may, if he choose, put them in filed the same in the office of the recorder on the issue. The rule must receive a reason- the 9th of December, 1893. Taking these alable interpretation, and must be so enforced legations together, we think it hypercritical as to further, and not obstruct, the adminis- to hold that the bill does not, with sufficient tration of justice. We think the court be- distinctness, allege the fact that the plaintiff low erred in holding that there was no suffi- did not discover the fraud until after the excient averment as to the time of the discov-piration of the ninety days mentioned, and ery by plaintiff of the alleged fraud set forth in the bill, assuming such averment to have been necessary. He averred that Pilkey, acting under the agreement with plaintiff and Johnson, discovered the mine, and located the same by posting the requisite notice on the ground on the 10th of July, 1893. He also averred that some time about the 1st of October (the exact time, however, he, could not state) the defendants entered into the conspiracy and combination referred to. This was but a few days before the expiration of the statutory time in which to file a copy of the notice of claim in the recorder's office of the county. He averred that the conspiracy and combination was secret, and that, while the plaintiff and his copartner Johnson were able and willing to comply with all the laws of the United States and territory, they failed
hence did not himself file the copy of the notice within that time.
All pleadings must be construed reasonably, and not with such strictness as to refuse to adopt the natural construction of the pleading because a particular fact might. have been more distinctly alleged, although its existence is fairly, naturally, and reasonably to be presumed from the averments. made in the pleading.
The agreement between the plaintiff, Pilkey, and Johnson shows it to have been the duty of Pilkey to make the necessary filing for record, in order to complete the location of the mine, which he, in the agreement, was to do. The plaintiff had the right to rely upon Pilkey carrying out that agreement, and fulfilling his duty thereunder by making the necessary filing; and plaintiff alleges.
that he would have done all things made necessary by law had it not been for this fraudulent combination and conspiracy on the part of the defendants. We regard the allegations of the bill as sufficient in these particulars.
Again, it is alleged that the bill prays that the location of what is called the Washington lode by the defendants be declared void, and that the plaintiff may have the possession of the claim; while the plaintiff now asks to have the defendants treated as constructive trustees, etc., which is inconsistent, as alleged, with the former prayer for relief. The bill contains a prayer for general relief in addition to the prayer for special relief, and under such prayer this relief may be given. It is objected that, under the prayer for general relief, no relief of that nature can be granted, inasmuch as it is opposed to the special relief asked for by the bill, and also because the general allegations in the bill do not justify such relief. All the facts upon which the plaintiff seeks relief from a court of equity are clearly stated in the bill. The facts constituting the fraud are set forth, and it is alleged that the parties doing the acts mentioned concealed them from the plaintiff for the purpose of defrauding plaintiff out of his interest and ownership in the mine. Having set out all the facts upon which the right to relief is based, the plaintiff asks specially for the possession, and also for the proceeds, of the mine, because, by reason of the facts, the location made by the defendants was a void location. Whether it was a void location or not was matter of law, arising from the facts appearing in the bill. Those facts were not changed in the slightest degree, nor were any inconsistent facts set up thereafter. The plaintiff now, under his prayer for general relief, contends that, although the location of the Washington lode by the defendants may have been so far valid as to create a title in the defendants, yet that, by reason of the fraud already distinctly set forth in the bill, the plaintiff was entitled to avail himself of that title, and to hold them as trustees ex maleficio, for his benefit.
There is nothing in the intricacy of equity pleading that prevents the plaintiff from obtaining the relief under the general prayer, to which he may be entitled upon the facts plainly scated in the bill. There is no reason for denying his right to relief, if the plaintiff is otherwise entitled to it, simply because it is asked under the prayer for general relief, and upon a somewhat different theory from that which is advanced under one of the special prayers. The cases of English v. Foxall, 2 Pet. 595, 7 L. ed. 531; Boone v. Chiles, 10 Pet. 177, 9 L. ed. 388; Hobson v. M'Arthur, 16 Pet. 182, 10 L. ed. 930; Hayward v.
| Eliot Nat. Bank, 96 U. S. 611, 24 L. ed. 855; Georgia v. Stanton, 6 Wall. 50, 18 L. ed. 721, are not opposed to the views just stated.
We agree that the relief granted under the prayer for general relief must be agreeable to the case made by the bill; and that, in substance, is what is held by the above cases. The case made by the bill consists of the material facts therein stated; and where all the facts are stated, it is no reason for denying relief under a general prayer, because it may differ from the theory of the law upon which the special prayer for relief is based, where both prayers are based upon the same facts, clearly set forth in the bill.
The defendants contend that, if Pilkey, under the fraudulent agreement alleged, and pursuant thereto, surrendered possession to the defendants, the latter became cotenants with the plaintiff, and he could maintain an action at law to recover possession from his cotenants. We have already held that the plaintiff could not, upon the facts, maintain ejectment. When Pilkey surrendered possession to defendants unde this fraudulent agreement, and they entered and posted the notice and filed the copy, they did not enable plaintiff to maintain ejectment against them as upon his ouster of possession by defendants.
Neither plaintiff nor Johnson had ever had anything but but a constructive possession through the possession of Pilkey; and when he fraudulently surrendered it to the other defendants, and they entered and completed their location, the plaintiff could not then sustain ejectment, as we have already held. This is not in opposition to the case of Erhardt v. Boaro, 113 U. S. 528, 28 L. ed. 1113, 5 Sup. Ct. Rep. 560. The question whether the relief should be at law or in equity was not there raised. The action was commenced in Colorado, and was in accordance with the usual form in actions for mining claims under the procedure in Colorado, and was brought to recover possession of a mine. There was no discussion as to the forum. The complaint simply followed the usual practice. Here we have already held, in the ejectment suit (181 U. S. 516, 45 L. ed. 979, 21 Sup. Ct. Rep. 665), that the relief is not to be had by ejectment, but must be obtained in equity if at all. Under the circumstances we think it immaterial whether Pilkey surrendered possession before or after the expiration of ninety days from the discovery of the mine, July 10, 1893. All the acts of fraud set up in the bill, committed by the defendants, are, if proved, sufficient to entitle the plaintiff to treat them as trustees ex maleficio, and to recover from them, as such trustees, all the materials taken from the mine. See Saunders v. Mackey, 5 Mont. 523, 6 Pac. 361; Doherty v. Morris, 11 Colo.
12, 16 Pac. 911. Upon the case made by the | under the provisions of the act of March 3, bill, some of the defendants being insolvent, we think the plaintiff entitled to an injunction restraining the defendants from further mining during the pendency of the suit; an injunction to issue upon such security as may seem appropriate to the court below.
We decide this case solely upon the questions raised by the demurrer.
The judgments of the Supreme Court of New Mexico and of the trial court must be reversed, and the case remanded to the Supreme Court, with directions to remand it to the District Court for the Second Judicial District of the Territory of New Mexico, within and for the county of Bernalillo, with directions to overrule the defendants' demurrer, and with leave to answer upon such terms as may seem proper to that court. So ordered.
(195 U. S. 469)
1891, entitled "An act to Provide for the Adjudication and Payment of Claims Arising from Indian Depredations." 26 Stat. at L. 851, chap. 538, U. S. Comp. Stat. 1901, p. 758. On February 5, 1902, the Assistant Attorney General of the United States answered the allegations of the petition by a general denial. On November 4, 1902, the claimant filed a motion for leave to file an amended petition, charging the depredation to have been committed by the Kiowa Indians, which motion was allowed, and upon the same day the amended petition was filed. On November 5, 1902, the Assistant Attorney General, appearing on behalf of the United States and the Kiowa Indians, filed a plea to the amended petition, setting up that no action had been commenced against the Kiowa Indians within three years after the passage of the act of March 3, 1891. On November 11, 1902, this plea in bar was overruled, and, upon the general issue being pleaded and trial
UNITED STATES and the Kiowa Indians, had, the court found as a matter of fact:
At the time of the depredation the claimant's decedent was a citizen of the United States.
JUAN B. MARTINEZ, Administrator of In June, 1873, in Mora county, New Mexico,
Julio Martinez, Deceased.
Indians belonging to the Kiowa tribe took and drove away property of the kind and
Pleading—amendment in Indian depredation character described in the petition, the prop
A petition in an action under the Indian depredation act of March 3, 1891 (26 Stat. at L. 851, chap. 538, U. S. Comp. Stat. 1901, p. 758), in which the wrong was alleged to have been committed by a particular Indian tribe, cannot be amended after the three years' limitation prescribed by that act has expired, by stating another and different tribe as the wrongdoer, since it is manifestly intended by the statute, taken as a whole, that the tribe by whom the depredation was committed shall be joined in the petition where it can be identified, though it does not in terms provide for service of process upon such tribe.
erty of claimant's decedent, which was reasonably worth the sum of $690. At the time of said depredation defendant Indians were in amity with the United States.
As a conclusion of law, the majority of the court decided that the claimant recover a
judgment against the United States and the Kiowa Indians, in the sum of $690.
The defendants appealed to this court.
Mr. Lincoln B. Smith, by special leave, and Assistant Attorney General Thompson for appellants.
Mr. William H. Robeson for appellee.
Mr. Justice Day delivered the opinion of the court:
This claim arises under the Indian depre
Argued October 21, 24, 1904. Decided De-dation act of March 3, 1891 (26 Stat. at L.
851, chap. 538, U. S. Comp. Stat. 1901, p. 758), and presents the question whether, after the expiration of three years from the filing of the petition in the court of claims, a tribe of Indians not originally named in the petition can be brought into the action by amended petition, with a view to proceeding against such tribe to judgment. The record discloses that the original petition was filed on October 24, 1891; the amended petition on November 4, 1902. The Attorney General filed a plea setting up the bar of the statute, which plea was overruled, and thereafter, upon issue joined and testimony taken, judgment was rendered against
the tribe of Indians so brought in by the ❘ and defend for both the interests of the govamended petition.
ernment and the Indians, and giving to any Indian or Indians interested in the proceedings the right to appear and defend by an attorney employed with the approval of the Commissioner of Indian Affairs. By the 6th section the amount of the judgment is charged against the tribe by which or the members of which the depredation was committed; and if no annuity, fund, or appropriation is available as provided, the judg
The act in question was before this court in United States v. Gorham, 165 U. S. 316, 41 L. ed. 729, 17 Sup. Ct. Rep. 382, and in that case it was held that, where the Indian tribe cannot be identified, a judgment for the amount of the claim can be rendered against the United States. In the opinion of the court in that case, the act was analyzed and its various sections construed; and it only remains to consider soment is to be paid from the treasury of the much of the act and its purposes as will lead to a solution of the question now under consideration.
The provisions of the 1st section of the act are positive, that all claims existing at the time of the taking effect of the act shall be presented to the court by petition, as therein provided, within three years after the passage of the act, or be forever barred. This section, by itself considered, would seem to conclude the right of the petitioner to bring in a new party to the proceeding after the expiration of three years, in such wise as to preclude the right to rely upon the bar of the statute. For obvious reasons, a party brought into court by an amendment, and who has, for the first time, an opportunity to make defense to the action, has a right to treat the proceeding, as to him, as commenced by the process which brings him into court. Miller v. M'Intyre, 6 Pet. 61, 8 L. ed. 320. Conceding this proposition as applied to ordinary actions, it is urged that this proceeding is so peculiar in character as to take it out of the general rule. Section 3 of the act provides:
"That all claims shall be presented to the court by petition, setting forth in ordinary and concise language, without unnecessary repetition, 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 5th section of the statute provides: "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 tribe of Indians committing the wrong, when such can be identified."
Section 4 provides for service upon the Attorney General, whose duty it is to appear
25 S. C.-6.
United States, to remain a charge against the tribe, and to be deducted from any annuity, fund, or appropriation thereafter due from the United States to such tribe. It is contended that, inasmuch as the Indian tribes are not necessary parties to the proceeding, and are not required to be served with process except so far as the notice to the Attorney General is such service, and are only to be described "as near as may be," they may be brought in at any time before judgment, whenever such tribe "can be identified," as set forth in the 5th section of the act. The reasons for this conclusion are fully set forth in the opinion of the court of claims in Duran v. United States, 31 Ct. Cl. 353. But we are unable to concur in the conclusions therein reached. In our view, the act provides for a recovery of depredation claims in two classes of cases: the one where the persons, classes of persons, tribe or tribes or band of Indians cannot be identified, in which event the United States may be held liable, upon proof complying with other terms of the act, though failing to identify the particular depredators; the other, where the persons or tribe described in the act can be identified, in which event they must be named in the petition, and the judgment will go against the United States and the tribe committing the wrong, to be satisfied primarily out of the funds of the Indians. As was said in the Gorham Case, 165 U. S. 321, 41 L. ed. 731, 17 Sup. Ct. Rep. 384: "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."
Whichever form the action takes, it must be brought within three years after the pas sage of the act, as provided by the 1st section. In requiring the band or tribe of Indians to be described as near as may be, it is the purpose of the act to require such tribe, primarily liable for the injury, to be brought before the court, when they can be identified, for the purpose of the judgment authorized in the 5th section. All the sections are to be read together to effectuate:
| requisite of a good plea, and furnish the name of the party to be impleaded. It was for the plaintiff to make such investigation as would warrant the beginning of the ac tion against the proper tribe, or against the United States alone, averring that the particular tribe could not be identified.
It is further insisted that it is the purpose of the act, as provided for in the 5th section, to require the judgment to be rendered against the Indian tribe, if it can be identi
this construction is required to protect the interests of the United States. But we think this section should be read in connection with the other sections of the act, and the manifest purpose is to join in the petition, when it can be identified, the tribe by whom the depredation was committed, and to limit the presentation of the claim to three years from the passage of the act. If this be not so, the Indians may be made parties to the proceeding and judgment without being brought into court in any manner until years after the alleged wrong was committed, and when it may be impossible, by reason of the lapse of time, or the death or disappearance of witnesses, to make adequate defense. The construction herein put upon the statute will give to the three years' limitation the effect of other statutes of limi
the purpose of the law; and when the tribe "can be identified," it must be described as near as may be; that is, with reasonable accuracy, sufficiently identifying the party for the purposes of the action and judgment, resorting to the liability of the United States alone only in cases where the offending parties cannot be identified. The claimant, under the statute, has three years for the purpose of investigating his cause of action, and, in cases where it can be done, identifying the tribe sufficiently for the pur-fied, at any time before judgment, and that poses of pleading and judgment against both the United States and the Indian tribe, or, in the alternative, proceeding against the United States alone. It is true that the act does not, in terms, provide for service upon the Indian tribes, their agents or attorneys, and the Attorney General is required to appear for them as well as for the United States. Of this provision, Mr. Justice Peckham, speaking for the court in the Gorham Case, 165 U. S. 321, 41 L. ed. 731, 17 Sup. Ct. Rep. 384, said: "Although the 4th 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 pro-tation, and will, in our judgment, best efvided for in the 6th section, it is proper to allow them to appear, and defend also by their own attorney." When brought into court they may give, by special counsel, more careful attention to their particular defense than could be given by the law officer of the government charged with the defense of thousands of similar claims. But it is said that the Attorney General, by failing to promptly raise, by plea, the defense of misjoinder, is quite as much in fault as the petitioner, in permitting more than three years to elapse before the new party is brought in; and it is said that, at the common law, this objection could only be raised by such plea seasonably interposed. At common law, where it was sought to bring in another party jointly liable, a plea by the defendant, setting forth the nonjoinder, and giving the name of such party, was the proper method of procedure. 3 Chitty, Pl.  and notes. But such is not the present case. The original petition charged positively that It follows that the judgment of the Court the depredation was committed by the Ute of Claims must be reversed and the petition Indians. It was sufficient for the Attor-directed to be dismissed, and it is so orney General to plead the general issue to put the plaintiff upon proof of his allegations. It is said that eleven thousand of these cases have been begun; and it is not to be presumed that the Attorney General would know the facts of each case, and be in possession of information to fulfil the
fectuate the purpose of the act. This act is extremely liberal in permitting presentation of claims for Indian depredations. All limitations are swept away except the requirement as to the time of filing the petition. In the present case the depredation is alleged to have been committed eighteen years before the action was commenced. Under these liberal provisions we think it was the purpose of the law to require parties to be duly prosecuted within the three years allowed for the filing of petitions; and the liberality of the act should not be extended by construction. As the case was prosecuted against the wrong tribe until after the three years had expired, it cannot bè maintained against the Indians sought to be brought in by the amendment, nor can it be sustained against the United States, which is liable by itself only in cases where the depredating Indians or other persons are unknown.
Mr. Justice White, with whom concurs Mr. Justice McKenna, dissenting:
Under the Indian depredation act of March 3, 1891, the United States was sued by one Gorman, in the court of claims, and