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peal to either party, and the necessary additional findings should be made by this court, and the inconsistent findings below disapproved. Settle order on five days' notice.

As to the motion for new trial on newly discovered evidence, we think it was properly denied, and the order should be affirmed, with $10 costs and disbursements.

(10) App. Div. 636)

TERRANCE V. GRAY et al.

(Supreme Court, Appellate Division, Third Department. January 6, 1915.) 1. INDIANS ($ 27*)—JURISDICTION OF COURTS.

Indians are wards of the state, and, generally speaking, are possessed of only such rights to appear and litigate in courts of justice as are con. ferred upon them by statute.

[Ed. Note.-For other cases, see Indians, Cent. Dig. $$ 19, 20; Dec. Dig.

$ 27.*] 2. INDIANS (S 27*)—JURISDICTION OF SUPREME COURT-EXISTENCE OF “PEACE

MAKER'S COURT."

Under Indian Law (Consol. Laws, c. 26) § 5, providing that any right of action, jurisdiction of which is not conferred upon a peacemaker's court, may be enforced in any court of the state, the Supreme Court has jurisdiction of an action of replevin between members of the St. Regis Tribe of Indians, since section 106 of the Indian Law, providing that the chiefs in such tribe in council assembled may hear charges of trespass and controversies involving title to land in the reservation, no provision being made for enforcement of the judgment' or for an appeal, does not create a "peacemaker's court."

[Ed. Note.-For other cases, see Indians, Cent. Dig. $$ 19, 20; Dec. Dig. $ 27.*]

Appeal from Trial Term, Franklin County.

Action by George Terrance against Peter Gray and Alexander White. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

Moore & Cooney, of Malone (A. B. Cooney, of Malone, of counsel), for appellants.

Kellas, Genaway & Kellas, of Malone (Le Roy M. Kellas, of Malone, of counsel), for respondent.

LYON, J. The parties to this action are Indians, members of the St. Regis Tribe, and reside on the St. Regis reservation, in Franklin county, in this state. The action is in replevin, to recover hay, oats, and straw grown in the summer of 1913, upon land which was allotted in 1902, by the chiefs of the tribe, to Thomas Gray, a member of said tribe, who died intestate in 1906, leaving the defendants, Peter Gray and Hattie White, the wife of the defendant Alexander White, his only heirs at law. In January, 1907, through conveyances by said heirs and others, all of whom were members of said tribe, which conveyances were duly recorded in Franklin county clerk's office, and also in the St. Regis Tribal and Register Book, and the title having *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

been duly located and confirmed by a majority of the chiefs of said trile in July, 1907, the plaintiff acquired the exclusive right to the possession and use of the land,

During the year 1910, and the two succeeding years, the plaintiff cultivated the land and harvested the crops, and in May, 1913, while the plaintiff was in peaceable possession and having oats sowed, the defendants forcibly entered and took possession of the land, taking therefrom, in July and August, 1913, the said hay, oats, and straw which have been found by the court to belong to the plaintiff, and to be of the value of about $475, for which sum, with interest and costs, the judgment appealed from was rendered. While the defendants in their answer denied the plaintiff's title to the land, they now base their claim of right to a reversal of the judgment solely upon the ground that it affirmatively appears by the evidence that there was a tribal court for the St. Regis Indians, empowered by law to settle disputes of this character, and that it was a custom to settle such disputes, and hence that the Supreme Court was without jurisdiction in the premises.

[1,2] Unquestionably the Indians are wards of the state, and, generally speaking, are possessed of only such rights to appear and litigate in courts of justice as are conferred upon them by statute. Johnson v. Long Island Railroad Co., 162 N. Y. 462, 56 N. E. 992.

"Any demand or right of action, jurisdiction of which is not conferred upon a peacemaker's court, may be prosecuted and enforced in any court of the state, the same as if all the parties thereto were citizens.” Indian Law (Consol. Laws, c. 26; Laws 1909, c. 31) $ 5.

The right of the plaintiff to resort to this court for the relief sought in this action depends, therefore, upon whether the St. Regis Indians had, within the intent of the statute, a peacemaker's court which had jurisdiction of the subject-matter. The only provision as to the St. Regis Tribe, relating to the hearing of disputes, is section 106 of the Indian Law, which provides :

"The chiefs of such tribe, in council assembled, may hear and determine charges of encroachment or trespass on lands cultivated or occupied by any Indian, entered or described in the clerk's book of records, and controversies involving the title to property between individual Indians residing on such reservation.”

to provision is made for enforcing the judgment or award, or for an appeal.

The only provision in the Indian Law for a peacemaker's court is found in article 4, relating to the Seneca Indians. Provision is there made for the election of three peacemakers, the holding of the peacemaker's court, defining its authority, the making of rules and enforcing them, the bringing of parties and witnesses into court, administering oaths to witnesses, fixing the time within which the determination of the court must be made, the keeping of a record of the transactions of the court, and the power to award costs. However, the right of the court to award damages is limited to $100. As to the Allegany and Cattaraugus reservations of the tribe, the court is also given the exclusive power to grant divorces between the Indians re

siding upon the reservation, and to hear and determine all questions between individual Indians residing thereon, involving the title to real estate on such reservations.

Appeal may be taken from the decision of the peacemaker's court to the council of the Seneca Nation, consisting of eight councilors elected by the members of the tribe. The case is decided by the council upon the evidence taken in the peacemaker's court, and such additional evidence as the council may determine to hear. The decision of the council is conclusive. In case of the failure of any party to comply with the determination so rendered, the party in whose favor it may be is entitled to recover the amount awarded in a state court having jurisdiction of actions of the same nature, and in such actions the record of such determination is conclusive. The marshal of the tribe is authorized to execute all orders and process of the peacemaker's court. It has been held that these provisions are sufficient to give the peacemaker's court jurisdiction to partition real estate among the heirs of a deceased Seneca Indian. Jimeson v. Pierce et al., 78 App. Div. 9, 79 N. Y. Supp. 3.

The appellant contends that the chiefs of the St. Regis Tribe in council assembled constitute a peacemaker's court of that tribe, within the intent and meaning of section 5. But the right of the council to hear disputes is simply permissive, and without any authority upon its part to issue process of any kind, or in any manner to compel the submission of controversies, or to enforce its decisions. Its power to act as a judicial tribunal is wholly dependent upon the willingness of the parties to voluntarily submit their differences to it and to abide by its determination when made. Manifestly it was not the intention to include in the courts referred to in section 5 of the Indian Law as peacemaker's courts, the informal council of chiefs of the St. Regis Tribe, but only those courts designated in the statute as peacemaker's courts. As found by the trial judge, no peacemaker's court exists in the St. Regis Tribe. Hence, unless the state courts have jurisdiction to hear and determine this controversy, the plaintiff is without remedy. That the state courts have this right seems clear. Peters v. Tallchief, 121 App. Div. 309, 106 N. Y. Supp. 64.

The judgment appealed from should therefore be affirmed. All con

cur.

PEOPLE ex rel. KENNEDY v. BECKER, Sheriff. (No. 549/12.) (Supreme Court, Appellate Division, Fourth Departmeut. January 6, 1915.) INDIANS (8 10*) —PROPERTY RIGHTS-HUNTING AND FISHING.

Where the Seneca Nation of Indians in 1897 granted to an individual, his heirs and assigns, their lands and all their right, title, and interest therein, reserving the privilege of hunting and fishing on such lands, not now within the bounds of their reservation, such privilege is subject to control and regulation by the state.

[Ed. Note.-For other cases, see Indians, Cent. Dig. $$ 25, 29, 46; Dec. Dig. § 10.*]

Merrell, J., dissenting.

*For other cases see same topic & $ NUMBER IN Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from Special Term, Erie County.

Habeas corpus, on relation of Walter S. Kennedy, against Frederick W. Becker, as Sheriff of Erie County. From an order discharging Fayette Kennedy and others from his custody, the sheriff appeals. Order reversed, writ dismissed, and prisoners remanded to custody.

Argued before KRUSE, P. J., and ROBSON, FOOTE, LAM-
BERT, and MERRELL, JJ.

Wesley C. Dudley, Dist. Atty., of Buffalo, for appellant Becker.
Valentine Taylor, Deputy Atty. Gen., for the People.
George P. Decker, of Rochester, for respondent.

PER CURIAM. Robert Morris acquired from the commonwealth of Massachusetts the right of pre-emption in certain lands in this state, of which the lands where the fishing was done are a part. He also acquired the Indian title, under sanction of proper federal authority, by an instrument in writing dated September 15, 1797 (Report of Special Committee appointed by Assembly of 1888 to investigate the Indian Problem, page 131 ; Assembly Document 51, 1889), by which the Seneca Nation of Indians granted to him, his heirs and assigns, forever, said land and all of their right, title, and interest therein, reserving to them the privilege of fishing and hunting thereon.

We are of the opinion that the Indians, having parted with their right of occupation and all of their interest in the lands, the privilege of hunting and fishing thereon is subject to control and regulation by the state. Even assuming that the Indians have the unrestricted right to hunt and fish upon their own reservation without interference by the state, these lands are not within the bounds of their reservation and are in no sense Indian lands. But the question as to whether the Indians have the unrestricted right to hunt and fish upon their own reservation is not involved in this controversy, and that question we do not decide.

The order should therefore be reversed, the writ of habeas corpus dismissed, and the three Indians upon whose behalf the writ was granted remanded to the custody of the sheriff of Erie county,

MERRELL, J., dissents.

NEVINS v. BROOKLYN CITIZEN. (Supreme Court, Appellate Division, Second Department. January 15, 1915.) 1. TRIAL ($ 139*)-QUESTION FOR JURY-INDEBTEDNESS-LIABILITY,

Whether certificates of indebtedness, read in connection with a contemporaneous agreement, showed that they were to be payable when the debtor was financially able to pay, consistently with its obligations on other certificates issued under the agreement and of conducting its newspaper, was a question of law, if there was no conflict of evidence, and no room for different inferences drawn from undisputed facts; but on conflicting evidence, or where different inferences might be drawn therefrom, its ability to pay was a question of fact.

[Ed. Note.—For other cases, see Trial, Cent. Dig. $8 332, 333, 338–341, 365; Dec. Dig. $ 139.* ] *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. DISCOVERY (8 88*)–CORPORATE INDEBTEDNESS-PAYMENT OF CERTIFICATES.

Under Code Civ. Proc. § so3, authorizing a court of record to compel a party to produce or to give the other party an inspection of its books, etc., relating to the merits of the action, the holder of certificates of indebtedness, payable when the debtor was financially able to do so, consistent with its other obligations, was entitled to discovery of the debtor's books, from the issuance of the certificates to the commencement of the action.

[Ed. Note.--For other cases, see Discovery, Cent. Dig. 88 113, 114; Dec. Dig. § 88.*]

Appeal from Special Term, Kings County.

Action by Thomas F. Nevins against the Brooklyn Citizen. From part of an order for discovery, plaintiff appeals. Order reversed, and motion granted.

Argued before JENKS, P. J., and BURR, STAPLETON, RICH, and PUTNAM, JJ.

Horace D. Byrnes, of New York City (Michael M. Helfgott, of Brooklyn, on the brief), for appellant.

Peter P. Smith, of Brooklyn, for respondent.

PER CURIAM. [1] The certificates of indebtedness, which are the subject of this action, when read in connection with the contemporaneous agreement, clearly indicate that they are payable when defendant is in a financial condition to enable it to make such payment, consistently with meeting all its obligations, including the other certificates issued under said agreement, and of conducting its business of publishing a newspaper. This question must be determined by evidence. If there is no conflict of testimony, and no room for different inferences to be drawn from the undisputed facts, its ability to pay becomes a question of law. If there is conflicting evidence, or if different inferences may be drawn therefrom, its ability to pay becomes a question of fact.

[2] If, at any time subsequent to the issuing of said certificates, such ability to pay existed, the obligation thereon became due. Plaintiff was therefore entitled to a complete discovery of the books of defendant for the entire period between the date of issuing said certificates and the date of the commencement of the action. Code, ş 803. There is an inconsistency in the order as made at Special Term, which limits such discovery to two years.

Plaintiff was entitled to a full discovery, or to none at all.

So much of the order as is appealed from should be reversed, with $10 costs and disbursements, and motion granted, permitting plaintiff a discovery for the entire period between February 23, 1895, and the date of the commencement of the action.

*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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