to the United States, as petitioner alleges, for the use of said petitioner. In accordance with said stipulation, Great Britain did pay it to the United States, and the purpose of payment under the treaty inhering in the receipt of the money constitutes the foundation of appellant's claim. The intervention of the board of arbitration and its award as a means of ascertaining the liability of Great Britain does not change the fact that the final recognition and payment of the claim grows out of the stipulation of the treaty.

In a still clearer sense, it is obvious that this recognition of the claim by the award, and its payment to the United States, were dependent on the treaty stipulation. Without the treaty the award would have bound nobody, and would have been at most a friendly recommendation. By virtue of the treaty, it became a most solemn and important international obligation whereby Great Britain became bound, as much as a nation can be bound, to pay the amount of the award, and, at the same time, became freed and discharged from any further liability on account of any claims of that class.

The effort of counsel to ignore the treaty, the award, and the receipt of the money by the United States as the foundation of appellant's claim, and rest the right to recover solely upon the act of March 31, 1877, by which the fund was changed from an investment in government bonds and paid into the government treasury, is too fanciful for serious consideration. If the government had not become liable, by reason of the original receipt of the money from Great Britain, under the treaty by which that country was discharged and released from the claim of plaintiff, it is difficult to comprehend how it became liable by a mere change in the manner of keeping the account. Whether the United States was liable on the bonds held in its own treasury vaults, or on account of the actual money represented by those bonds in the same vaults, cannot be material in estimating the nature and extent of that obligation. Nor can we assent to the proposition that the section cited was designed to prevent foreign governments or Indian tribes from suing the United States to enforce rights founded on treaties. No such suit has ever been brought before or after the enactment of this provision. It is not believed that without it any one ever supposed that the court of claims had jurisdiction of suits by Indian tribes or foreign nations against the United States. It could not have been passed, therefore, to prevent such a suit.

That the restriction was intended to apply to cases of the character of the one now before us was substantially decided in Atocha's Case, 17 Wall. 439. In that case, under the treaty of Guadalupe Hidalgo with Mexico, of February 2, 1848, our government undertook to satisfy the claims of her citizens against Mexico to the amount of $3,250,000. In execution of this stipulation congress passed an act creating a board of commissioners, before whom such citizens should appear and establish their claims. *When the two years which terminated the existence of the commission had expired, a considerable balance of this sum remained in the hands of the government, against which no claims had been established. In this condition a special act of congress authorized Atocha to present his claim to the court of claims, and if established to the satisfaction of that court, it was to be paid out of this fund. That court found in his favor, and the United States asking an appeal it was refused. On an application to this court for a writ of mandamus to compel the court of claims to allow the appeal, it was urged by counsel for the government that the case being one cognizable under the general jurisdiction of that court on an implied contract, there was a right to appeal, though by the special statute referring the case to that court no such right was given. The court, in reply to this, said that since the act of March 3, 1863, in which the provision, embodied as section 1966 of the Revised Statutes, was first passed, the court of claims had no jurisdiction over this class of cases by virtue of the acts conferring its general powers. "These acts have since then [said the court] applied only to claims made directly against the United States, and

for payment of which they were primarily liable, if liable at all, and not to claims against other governments, the payment of which the United States had assumed or might assume by treaty. The act of June 25, 1868, while allowing appeals in behalf of the United States from all final judgments of the court of claims, did not change the character of the claims of which that court could previously take cognizance. Claims under treaty stipulations are not brought within it, and when jurisdiction over such claims is conferred by special act, the authority of that court to hear and determine them is limited and controlled by the provisions of that act." That was a case in which, by the express terms of the treaty, the United States had assumed the debt of Mexico to Atocha and others of his class. The present is a case in which such assumption is implied from the circumstances of the treaty and the receipt of the money. In the former case the United States agreed, for a valu- 2 able consideration in land or territory, to pay for Mexico $3,250,000 to her creditors residing in the United States. In the latter, the government received $15,500,000 from England, under what is alleged to be an implied promise to pay a class of American claims against her. We can see no difference in principle in the two cases, as they have relation to the fact that both claims grow out of, and were dependent on, treaty stipulations.

This limitation of the jurisdiction of the court of claims is in accord with the uniform course of the government in dealing with claims of our citizens against foreign governments. In such cases, where those governments have acknowledged a liability, but the amount of the number of the claims is in controversy, mixed commissions, composed of arbitrators appointed by each party, and an umpire, have usually been created by a treaty, which made the award of the commission obligatory. In cases like that of Guadalupe Hidalgo and the treaty of Washington, under which the present claim arises, where the foreign nation pays, or agrees to pay, to this government a fixed sum in discharge of the class of claims which is the subject of treaty, congress has provided a commission at home to pass upon the claims asserted under the treaty. In no case that we are aware of has congress conferred on any judicial tribunal the power to adjudicate such claims as a class, and in the Case of Atocha, where a reference of a single claim was made to the court of claims, its action was rather in the nature of a commission to ascertain the facts than a judicial tribunal, as in other cases, and hence no appeal was allowed. In the case of the Geneva Award, one such commission has been created by act of congress and its term of service has expired. Another is now in existence, under another act, for the same purpose, namely, the distribution of the sum paid under that award, and congress is still devoting its attention to other means for the proper distribution of the remainder of this fund.

For these reasons we are of opinion that the court of claims*had no juris diction of the case presented by the petition of appellant, and its decree dismissing it is affirmed.

(112 U. S. 193)

PAULISON, Surviving and Sole Receiver of the Columbian Ins. Co., v. UNITED STATES.

(November 10, 1884.)

John McDonald, for Paulison, receiver. Sol. Gen. Phillips, for the United States. This case was tried at the same time, in the court of claims, as the Great Western Ins. Co. v. Same Defendant, ante, 99, and was decided on the same facts, and the same judg ment was then rendered. It was argued in this court with that case, and the judgmen! of the court of claims is affirmed for the reasons given in the opinion in that case.

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(112 U. S. 207)

RANNEY, Adm'r, etc., v. BARLOW and another.

(November 3, 1884.)

1. FRAUD-SALE OF LAND BY JOINT OWNER AS AGENT-PREFERENCE AS TO HIMSELF IN PRICE RECEIVED.

A party selling a piece of land of which one-half only is his, commits no fraud on the other owners by taking from the purchaser for his part a price higher than what he requires for the rest, if, previously to the execution to him of a power to sell, procured without fraud, he stated bona fide to such owners his intention so to ask a higher price for his part, and received their consent to his doing so.

2. SAME INSTRUCTIONS OF COURT TO JURY-HYPOTHESIS UPON WHICH CHARGE SHOULD BE BASED.

It was the duty of the court to submit to the consideration of the jury the testimony adduced by the defendant to sustain the defenses set up in his answer, and the charge should be based on the hypothesis that the defenses which the testimony tended to prove were proven.

In Error to the Circuit Court of the United States for the Northern District of Ohio.

R. P. Ranney and J. M. Adams, for plaintiff in error. S. Burke, for defendants in error.

WOODS, J. This was an action at law brought by the defendants in error, Samuel L. M. Barlow and Charles Day, against the plaintiff in error, Silas S. Stone. The petition was framed according to the rules prescribed by the Code of Ohio, and was "for money only." The action, generally stated, was based on the following averments of the petition, to-wit, that the defendant, being the joint owner, in common with the plaintiffs, of a tract of land, and being their agent to take care of and negotiate sales of the land, either in parcels or as a whole, sold the entire tract for $500,000, paid them $200,000 of the purchase money, and fraudulently retained $300,000 for himself. The suit was brought to recover $50,000 and interest, that sum being, as the petition alleged, the share of the plaintiffs in that part of the purchase money which the defendant had unlawfully and fraudulently retained and appropriated. The answer of the defendant denied all the charges of fraud made in the petition, and alleged that the defendant made the sale of the plaintiffs' half of the property by virtue of a power of attorney authorizing him to sell it for $200,000, and stated facts, showing, as the defendant insisted, that he was guilty of no fraud in procuring the power of attorney; and that the plaintiffs, before executing it, were fully advised by the defendant of his purpose to sell his own half of the land for a larger price than that for which the power of attorney authorized the sale of the plaintiffs' half, the defendant undertaking to pay all the expenses of bringing about a sale; and that, with full knowledge of the facts, plaintiffs agreed to the arrangements for selling the property and executed the power of attorney.

The pleadings and the bill of exceptions, which embodied all the evidence, disclosed the following facts: The plaintiffs, on or before November 6, 1871, were the owners of an undivided half in common of certain lots, forming a part of what was known as the "Central Tract," situate in the city of Cleveland, in the state of Ohio, and the defendant, Stone, was the owner of the other undivided half in common. For several years previous to November 6, 1871, and until the sale of the property as hereafter mentioned, the defendant was the agent of the plaintiffs, having the charge and management of their estate in said property, with power to "work up" sales of the same, either in parcels or as a whole, but without power to make contracts of sale or to convey. On or about November 6, 1871, the defendant, who was a resident of Cleveland, sent by mail to the plaintiffs, who resided in New York, a power of attorney, dated November 7th, to be executed by them, which, when executed, would authorize him to sell, by contract in writing, their undivided half

of the real estate above mentioned for the consideration of $200,000, of which $40,000 was to be paid cash down, and the residue in eight annual payments of $20,000 each, with interest at 6 per cent., to be secured by mortgage on the property sold. The authority conferred by the power was to expire in 60 days from the date of the power. In a letter written by the defendant to the plaintiffs, which inclosed the power of attorney, and which bore date November 6, 1871, the defendant said, referring to the power of attorney: "I think I can sell, on the terms therein set forth, the land therein mentioned to a responsible party, within sixty days from now, and perhaps by the first of December next, but, in order to do so, entire secrecy must be observed in regard to the matter, and I must be allowed to bring about the sale in my own way." He added: "I advise the sale and desire an immediate reply. If a sale is made, I expect to make special terms for my interest." After the receipt of this letter and the draft of the power of attorney, to-wit, about November 12th, the plaintiffs sent their agent, Mr. Tatlow Jackson, to Cleveland, with a letter to the defendant, in which they said: "He," Mr. Jackson, "goes at our express request to confer with you in reference to the subject-matter of yours of the sixth instant. You will oblige us by communicating to him as freely as you would to us. The proposition contained in your letter is of such magnitude as to enjoin the most thorough canvass and consideration-hence Mr. Jackson's mission."

There was evidence tending to show that Jackson passed three days in Cleveland, much of the time in the company of the defendant; that he was taken by the defendant over, and shown a large part of, the city, and that the land in question was shown to him, and its situation explained by the defendant; and that during that time the defendant repeatedly told Jackson that he would not sell his half of the land for the price he had named in the power of attorney as the price for the plaintiff's half, but would demand a larger price, and gave as reasons why he was entitled to more for his half than the plaintiffs were for theirs, that he could make a good title at once, which the plaintiffs, on account of the incumbrances on their half, could not do; that there would be large expenses incurred in bringing about a sale, which he expected to pay, and the payment of which would compel him to sell other lands; that he might be compelled, in order to make a sale, to put other property out of the market by buying it; that he had made expensive improvements on other property belonging to him in Cuyahoga valley, with a view to enhance the value of the Central Tract, which embraced the property in question; and ⚫that the use to which their common property might, if sold, be put would de-* preciate the value of other adjacent real estate on the Cuyahoga river owned by him. On November 17, 1881, which, as the testimony tended to show, was about the close of his visit to the defendant in Cleveland, Jackson wrote a letter to Day, one of the plaintiffs, which was received by the person addressed, in which he said: "I am confirmed in the opinion that you had best permit Mr. Stone to do as he thinks best with Central Tract. I put it to him that you would prefer to go half-and-half with him in any sale he might make, in place of putting any valuation on your half interest. He responded that it was probable that, for his half interest, he might have to make a trade, which would bring in some other property belonging to him, making it impossible for such an arrangement, and that he intended to sell with you; that is, that he is not a purchaser."

Evidence was also introduced tending to show that on December 1, 1871, Charles Day, one of the plaintiffs, had an interview in Cleveland with the defendant in reference to the sale of the property, in which interview the defendant told him that if the sale was made, he was unwilling to divide the property equally; that if he sold his half, he should sell it for more than the price named in the power of attorney; that he did not want the power of attorney unless he was going to be left perfectly free to manage his half. To

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which Day replied that the power of attorney would come very quick after he got back to New York; that he was perfectly satisfied and ready to sell the property; and that, in the same interview, the defendant told Day, as reasons why he proposed to demand more for his half of the property than he demanded for the plaintiff's half, that he intended to pay the expenses of the sale; that he had to use land for that purpose, and might have to buy other land. On the same day, December 1st, Day wrote to his co-plaintiff, Barlow, as follows: "After a lengthy interview with Mr. Stone, I am strongly inclined to believe that we had better authorize him to sell that portion of the Central Tract, 485 lots, in the manner proposed by him;" and then, after giving his reasons for the opinion, added, "I therefore think it wise to conform to the terms of his proposition."

Testimony was given to the jury tending to show that after all this, and about December 7th, the power of attorney sent by the defendant to the plaintiffs was executed by them and mailed to the defendant, who received it about December 9th. After receiving from the plaintiffs the power of attorney, the defendant, on December 9, 1871, made a written proposition to the Cleveland, Columbus, Cincinnati & Indianapolis Railroad Company for the sale to it of the entire tract of land for $500,000, and added: "For one undivided half of the property I am prepared to give a good and sufficient warranty deed, free of incumbrance, and take a mortgage to secure the deferred payments; for the other half, which is slightly incumbered, I am prepared to give a contract from S. L. M. Barlow and Charles Day, who hold the legal title, and will speedily clear it of incumbrance, and have consented that the cash payment and the contract itself shall be placed in the hands of the Society for Savings until they can make a clear title." In pursuance of this proposition a contract was executed, bearing date December 16, 1871, by which the plaintiffs, acting by the defendant as their attorney in fact, sold and agreed to convey their undivided half of the premises to the railroad company for the consideration of $200,000, in the installments mentioned in the written proposition of December 9th, which the railroad company agreed to pay. The contract was executed in less than 60 days after the date of the power of attorney, and was in all respects in conformity with the authority conferred thereby. The defendant, by a contract also dated December 16, 1871, agreed to convey by a deed of general warranty his own undivided half of the same premises to the railroad company for the consideration of $300,000, $60,000 whereof was to be paid on the delivery of the deed, and the residue in eight annual installments of $30,000 each. The latter contract contained a provision that unless the plaintiffs within one year delivered the deed to the railroad company for their undivided half of the land the railroad company should elect whether it would carry out its contract with the defendant or rescind the same.

There was some evidence tending to show that $200,000 was a fair price for the plaintiffs' undivided half of the land, and there was no evidence that, when the power of attorney was executed, the plaintiffs were ignorant of its value. There was no evidence tending to show that before December 7, 1871, the day when the power of attorney was executed by the plaintiffs, the defendant had received any offer or intimation from the railroad company that it would pay $500,000 for the property, or that such an offer had been received by the defendant from any one else.

On January 29, 1872, the railroad company, on account of the precarious health of the defendant, decided to receive at once his deed for his share of the property. The deed was executed and delivered on that day, and the railroad company paid the defendant $60,000 of the consideration, and gave its note secured by mortgage for the residue. In July following the plaintiffs, having cleared the incumbrances from their half of the property, executed a deed therefor to the railroad company and received $40,000, the cash payment