The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1870-11-19

The Right OF Indians ON Reserv ations to
Alternate Their Lands-The Law Of Custom
in Trade Regulations.
WASHINGTON, Nov. Is. 1870.
NO. 227. Robert s. Steuens 0s. Victoria Smith
ana Nos. rs ana 29.-Errors to the Supreme Court
OF Kansas-These cases are heard together, as they
involve the same questions. BY the sixth article OF
the treaty between the government ana the Kansas
Indians, OF June 5, 1926, certain reservations were
made to each OF certain named halr-Dreeis among
whom were the parents OF the defendant in these
cases. The parties went into possession. and the
heirs subsequently conveyed by deed portions OF
their reservations TO Stevens the plaintiff in error.
Suits were afterwards brought by the grantors to
recover the land SO conveyed, on the ground thar
they were by the provisions OF the treaty and tho
laws Of the United States incapable OF allenarnr the
lands. These suits decided in favor OF the In.
dams, the court refusing TO allow the documents
purpOrtng to be deeds 10 Stevens to be introduced
as evidence, holding that the grantors named there
IN could convey no title: TO that decision this writ
OF error Is taken and the piainnr in error
contends that upon the survey and location OF the
sections reserved and the delivery of possession TO
the grantees named in the treaty they were by the
ternls Of the treaty respectively clothed with fee
simple title In the reservations, and that further
act was necessary the part OF the government to
forfeit their Title But If this is found to be So
then Is maintained that by the act of May 1850,
the fee was passed to the reserves and thereafter
they had the right TO make deed 10 the property
and to convey the fee. That act recites that the
land reserved had been surveyed and allotted TO
with the provisions OF the article named. 1t then
enacts "hat all the Lle interest and estate or tho
United States IL hereby vested In the said reserves
who are now living ON the land reserved, but that
nothing herein contained shall be construed to give
any force or efficacy or binding effect TO any con.
tract, In writing or otherwise, for the sale dispO-
sition OF any lands named III tins act heretofore
made by any OF the said reserves or their heirs.
IL Is commended that the word heretofore used In the
act by implication authorizes sale or transfer after
it, and as the conveyanccs in DISPUTE in these
made after the passage of the the title con-
the provision OF the same act which made it neces
sary for the Secretary or the Interior TO convey Tor
The reserves IN they should wish dispose OF
their lands, make IL clear that Congress did not in
tend to invest the fee for purposes Of alienation
law that call contracts which are contrary to the
provisionsof any statute are yoid'' should be APP
Piled The act was intended TO protect the Indians
against their own mprovIdence, ana they are en-
ttled TO its benefit in that particular. j. ii. Brad
ley, J. w. Denver and James Hughes for plaintiff in
error; Judge Black for DEFENDANT.
No. 2sS. george w. BARNARD, PlatRttG IN Error.
Us. f. ". Kellogg ct dyError to the Circuit for the
District Of Connecticut.-In 1864 MI. Barnard was a
commission merchant In Boston and had received
from a shipper In Buenos Ayres quantity of wool
on which he had paid advances. Part OF the con-
sgnment was placed In the hands OF brokers In that
city with instructions not to sell unless the purchaser
came TO Boston ana examined the wool for himself.
Subsequently On August 1864 sale was made TO
Kellogg account Of his firm (E. n. Kellogg Co.,
Of New York;, he having in person examined four
bales and declining to have more opened for his In
spection. In May, 1865 Kellogg y Co. notified MI.
Barnard that the woal was falsely packed. which
was the fact but heretofore unknown to Mr.. Bar
nard On the trial ii was shown mat by the custom
of wool dealers in New York and Boston there is a
warranty by the seller implied from the fact or sale
that the wool is not falsely packed. Upon these
facts two questions arose; FIRST is such custom
legal and valid one? and, second, II it is
legal and valid is the seller bound by 1t
when he expressly STIMULATES that the purchaser
shall examine the wool to his own satisfaction be-
fore purchaser The Circuit Court sustained the
custom and decided in favor Of the purchaser; and
IN
the plaintiff in maintaining that II is contrary
10 the rule Of cayeat emptor, and so entirely at
variance with that rule as to be illegal. The de-
PENDANTS In error contend that law OF custom in
trade regulations is well established, ana that the
courts have long sustained them In 1t. Charles E.
Perkins for plaintiff In error: WEIGH Shipman
for dcfonuanta.