
    BELT’S CASE.
    George G. Belt’s Executrix v. The United States.
    
      On the Proofs.
    
    
      In 1851 the Indian Commissioners in California conclude treaties with certain tribes who thereby agree to surrender their lands, come upon reservations, and be subsisted by the government. A sub-Indiam agent has the responsibility of subsisting one of these tribes. .Repurchases supplies, reports the facts to the government, and aslcs for instructions if his proceedings be not approved. No disapproval is expressed. The treaties are subsequently rejected by the Senate, but the lands ceded are retained. For the payment of similar supplies, appropriations are subsequently made by Congress.
    
    I. The history of the policy pursued hy the government in regard to the California Indians examined and stated.
    TI. The statutory authority of Indian agents in 1851 to purchase necessary supplies for Indians with the approval of the President examined and stated.
    III. The restrictions upon purchases for the public service established by . the Act 1st May, 1820 (3 Stat. L., p. 568, § 6), did not extend to the business of Indian affairs, nor were there any such restrictions applicable to purchases for Indians in 1851.
    IV. The purchase of supplies'to subsist Indians in California in 1851 was a purchase under authority of law within the meaning of the Act 30th June, 1834 (4 Stat. L., p. 735, § 13), although the treaty-pursuant to which the supplies were purchased had not then been rati- • lied and was subsequently rejected by the Senate.
    V.When the Commissioner of Indian Affairs, being informed of the course which a sub-Indian agent in California intended to x>ursue, approved it, his approval was a ratification of the agent’s acts, rendering them valid.
    VI.The action of the Commissioner of Indian Affairs must be presumed to be the action of the President.
    VII.Where a statute requires a subordinate officer to obey the instructions of the Secretary of the Interior and to carry into effect such regulations as the President may prescribe, and his acts receive subsequently the approval of the Commissioner of Indian Affairs, the law is substantially complied with. ,
    
      VIII.The provision of the Act ZOth June, 1834 (4 Stat. L., p. 735, $ 7,) which requires that certain officers “ shall he present and, certify to the delivery of all goods or money required to he paid or delivered to the Indians,” was directory to the officers and not mandatory upon the vendors of the goods.
    IX.Whore goods have been actually sold and delivered for the use and benefit of the government, an action may he maintained for the value thereof, though the contract under which they were delivered was irregular or void.
    X.Where an assignment of a claim against the government is void under the Act 26th February, 1853 (10 Stat. L., p. 170, § 1), the.assignor may repudiate the assignment at any time before actual payment, and bring an action in his own name.
    XI.Where an assignment of a claim is void by statute, a judgment against the assignee will not bar a suit by the assignor'.
    XII.¿'judgment of the Court of Claims, as formerly organized, was not final under the Court of Claims Act, 1855 (10 Stat. L., p. 613, § 8), until confirmed by Congress.
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts as found by tbe court:
    I. In April, 1849, under tbe Act June 30, 1834, cb. 102, § 5 (4 Stat. L., 735), Adam Jobnston was appointed sub-Indian agent for tbe Indians in tbe valley of tbe San Joaquin and Sacramento Rivers, California, and in November, 1849, bis district was divided, and be was placed in charge of the valley of tbe San Joaquin.
    II. When appointed be was informed by tbe Secretary of tbe Interior, in writing, that no specific instructions could then be given him, in consequence of want of information in tbe department as to tbe condition and situation of tbe Indians, and be was directed to furnish tbe department with information in regard to them. No instructions in regard to bis dealings with tbe Indians were given to him prior to tbe accruing of the claims upon which this action is founded, except as hereinafter stated.
    III. Under tbe Act September 28, 1850, ch. 82 (9 Stat. L., 519), Rediclr McKee, George W. Barbour, and Oliver Wozen-craft were duly appointed agents for tbe Indian tribes within tbe State of California.
    Under tbe provision of tbe Act September 30, 1850, cb. 91 (9 Stat. L., 558), appropriating ■ 125,000 • “ to. enable tbe President to bold treaties witb tbe various Indian tribes in tbe State of California,” they were appointed, “ witb tbe sanction of tbe President,” as was stated in tbe letter of appointment and instructions signed by tbe Commissioner of Indian Affairs, commissioners for-that purpose, and tbeir functions as Indian agents were suspended.
    Upon tbe passage of tbe Act February 27, 1851, cb. 14, § 3 (9 Stat. L., 586), they were informed that tbeir offices and functions as commissioners were abrogated and annulled. They were at tbe same time directed not to suspend negotiations, but to enter upon tbeir Appointments as agents, and were as sucb designated, under tbe act of 1851, to negotiate witb tbe Indians of California, under tbe instructions already given.
    IV. Among tbe instructions given to said commissioners, through tbe Commissioner of Indian Affairs, October 15, 1850, were tbe following:
    “ You will find, on your arrival in California, Adam Johnston, esq., subagent at San Joaquin, from whom you will doubtless receive much valuable information, as bis residence in tbe country for considerably more than a year has enabled him to collect a great deal relating to tbe Indian tribes, tbeir location, tbeir manners, babits, customs, disposition towards tbe whites and each other, and tbe extent of civilization to which they have arrived. Mr. Johnston will be directed to afford you all tbe aid in bis power, and give you all tbe information in bis possession, that may be of use to you in the discharge of your duties.
    “Tbe department is in possession of little or no information respecting tbe Indians of California, except what is contained in tbe inclosed copies of papers, a list of which is appended to these instructions; but whether eAmn these contain sufficient data to entitle them to full confidence will be for you to judge, and they, are given to you merely as points of reference.
    “As set forth in tbe law creating tbe commission, and tbe letter of tbe Secretary of tbe Interior, tbe object of tbe government is to obtain all the information it can witb reference to tribes of Indians within tbe boundaries of California,, tbeir manners, babits, customs', • and extent of civilization, and to make sucb treaties and compacts witb them as may seem just and proper. On tbe arrival of Mr. McKee and Mr. Barbour in California, they will notify Mr. Wozencraft of tbeir readiness to enter upon tbe duties of tbe mission. Tbe board will convene, and, after obtaining Avhatever light may be within its reach, Avill determine upon some rule of action which will be most efficient in attaining the desired object, which, is, by all possible means, to conciliate the good feelings of the Indians, and to get them to ratify those feelings by entering into written treaties, binding on them, towards the government and each other. You will be able to judge whether it will be best for yon to act in a body, or separately, in different parts of the Indian country.”
    Y. In December, 1850, while the commissioners were on their way to California, hostilities broke out in the valley of the San Joaquin between the Indians and the whites •, many of the latter were killed, and a general war against the whites was resolved on by the Indians. The governor of California, at the request of Adam Johnston, called out a portion of the militia of the State and organized a military force to operate against the Indians. The amount of expenses incurred and paid by the State of California in operating against the Indians with the militia thus called out, were repaid to the State out of the Treasury of the United States under authority of the Act August 5,1854, ch. 267, § 3 [9] (10 Stat. L., 582);
    YI. When the commissioners arrived in California they found hostilities existing between the Indians and whites, as above described. They applied to the general commanding the United States troops in California for an escort, and after having obtained it proceeded tQ the San Joaquin Yalley. There they found the State troops prepared to attack the Indians. The commander of the State troops, at the request of the commissioners, deferred his attack until the commissioners could negotiate with the Indians. The commissioners determined that if the Indians did not treat, their escort of United States troops should aid the State troops in their attack.
    YII. The Indians were notified of these determinations, and opened negotiations with the commissioners. The Indians were required to at once leave their mountain resorts, to . abandon their lands to the whites, to descend to the plain and reside peaceably upon a tract of land selected for them.
    In return the commissioners promised the Indians that the United States would give them seeds to plant and implements to work with, establish schools, and appoint persons to teach them how to cultivate their lands and provide for their own wants.
    YIII. Induced by these threats and promises, six bands of Indians, four of whom were actually hostile, agreed to accept the terms offered, and they removed to a reservation, so called, on the Merced Biver, which was placed in charge of Adam Johnston, who was to compel the observance of the conditions by the Indians, aided, if necessary, by the military forces of the United States.
    IX. In March, 1851, a treaty was made with the Indians by the commissioners, embodying the terms agreed upon.
    In a report to the Commissioner of Indian Affairs, under date of March 25,1851, the commissioners thus referred to the circumstances under which this and other treaties were made:
    “After submitting our proposition to them, we desired them to retire and consult among themselves upon the terms that we had proposed, and in an hour we would then again meet them and learn their decision, as well as hear propositions from them, if desired to make any. When we again met them they expressed themselves satisfied with the terms we offered, except their removal from their mountain fastnesses to the plains immediately at the foot of'the mountains. We then explained to them the necessity of such a removal and location, and that we could treat with them upon no other condition, believing that if they were permitted to remain in the mountains constant conflicts between the Indians and miners would take place; that the Indians could not, nor would they attempt to, support themselves otherwise than by stealing horses, mules, and cattle from the farmers in the plains, and by "depredating upon small parties of miners in the mountains. After we had explained these matters fully to them they again consulted together, and finally agreed to move their families to thp plains, as we desired.”
    In another report to the same officer by one of the commissioners the terms of those treaties were thus referred to, after describing the strife between the Indians and the whites:
    “Under these circumstances the commissioners undertook to effect a reconciliation and carry out the plan agreed upon for treating with the Indians. Treaties were, with much trouble and delay, made by the joint board of commissioners with several tribes, with the terms of which you were in due time made acquainted. A very important feature in these treaties, and one, too, without which no treaty could have been made with the Lndians, was the supply of an agreed amount of beef and flour to aid in the subsistence of the Indians treated with during the years 1851,1852. Without some such provision the commissioners, as well as every intelligent man in California, knew that no treaty made with these Indians would be observed by them. Necessity as well as inclination would compel tbem to steal from the whites animals on which to subsist, as, in a large majority of cases, the stores of acorns laid up by them had been destroyed by the whites. The commissioners, therefore, urged-by the calls of humanity and the voice of the whole country, could do nothing less than agree to furnish the provisions stipulated in the different treaties.’7
    To the report of the commissioners of March 25,1851, the Commissioner of Indian Affairs made the following reply, omitting such parts as are not material in this case:
    “DEPARTMENT OE THE .INTERIOR,
    “ Office Indian Affairs, May 22,1851,
    “ Gentlemen : Tour letters of March 5th and 25th, 1851, the-last inclosing copy of a treaty entered into with chiefs, captains, and headmen of six tribes of Indians in California, and one from. Agent McKee, of March 24-, 1851, have been received.
    “The department fully appreciates the difficulties with which you have had to contend in executing the important trust confided to you, and is highly gratified with the results you have-thus far achieved, especially with your energy and dispatch in procuring a location for several tribes of Indians and promptly-removing them to it.
    * * * * * * *
    “Very respectfully, your obedient servant,
    “L. Lea, Gommission&>\
    
    “Messrs. Rbdiok McKee, Geo. W. Barbour, O. M. Woz-ENCRAET.”
    N. The Indians faithfully fulfilled the terms and conditions imposed upon them by the commissioners, removed into the .reservations provided for them, and surrendered their other lands to the United States. Some time in 1852 the treaties were rejected by the Senate of the United States, and have never since been ratified.
    The United States have continued to’hold the lands thus surrendered and to exclude the Indians therefrom, and they have never acquired title to the Indian lands from which these Indians; were removed by any other agreements or treaties than those thus made by said commissioners as aforesaid.
    During the summer and autumn of 1851 and the winter of 1852 the Indians on the Merced Reservation, placed by the commissioners under the charge of Adam Johnston, were in a destitute condition.
    The reservation was sterile, and yielded little of the natural seed used by them, and if food bad not been furnished by Adam Johnston they must have left the reservation or starved, no provision having at that time been made by the commissioners to supply the provisions required by their agreement and the terms of the treaty.
    In a report to the Commissioner of Indian Affairs, under date of June 24, 1851, Adam Johnston thus refers to his course of proceeding:
    “Under this state of things, what was my duty1? To say nothing of humanity under such circumstances, what was the best policy to be pursued by me for the interests of the government! In the absence of authority, and in view of the best interests of the government, I took the responsibility of furnishing greater supplies of beef to the Indians than was stipulated in the treaties, relying on the government for its payment in future. This was the only alternative to keep the Indians from returning to the mountains and undoing all that the commissioners had effected. I have also changed the manner of delivering it to them. Instead of delivering beef cattle on foot by the head, I have ordered such as I give them to be killed and delivered by the piece or pound. My reason for doing so was that the cattle of this country are wild and unmanageable. The Indians are without horses, and, if they had horses, are ignorant of managing cattle, and many escape from them after being delivered.
    
      •/.' -k: *X!
    “ Should this or any other proceeding of mine not meet the approbation of the department, I hope to be so informed immediately. ”
    To this communication the Commissioner of Indian Affairs, under date of August 12, 1851, made the following reply:
    “ Sir : Your letter of June 24,1851, giving an account of your proceedings as subagent for the Indians in San Joaquin Yalley for the three months preceding that date has been received.
    “Themotives which prompted you to furnish additional subsistence to the Indians and employ a physician to vaccinate them and prescribe for the diseased among them, are duly appreciated by this office, and as there are no appropriations now applicable to such, expenditures, the department will recommend the subject to the favorable consideration of Congress, that such action may be had by that body as shall provide for them.”
    » * * * * * *
    
    XL While the Indians were thus under the charge of said Johnston, up to the time of his discharge as sub-Indian agent, which took place early in the year 1852, he purchased from time to time of George G. Belt and Henry Drought, copartners under the firm name of George G. Belt & Co., who were licensed Indian traders, certain quantities of beef and flour at fair and reasonable prices, for distribution to said Indians.
    The beef and flour thus purchased were delivered to said Indians, and were necessary for their jireservation and to restrain them from depredations on the property of the white population, as well as from open hostility. They were also required by the terms agreed upon between the Indians and the commissioners.
    The quantity delivered and the prices for the same are shown by the receipts and vouchers signed and issued by said Johnston.
    [These vouchers, five in number, were like the following:]
    “Mercedes Indian Reservation,
    “ Valley of San Joaquin, California.
    
    “ Received of Geo. G. Belt & Co. twelve thousand and one hundred pounds of beef, at fourteen cents per pound, and three thousand four hundred and fifty pounds of flour, at sixteen cents per pound, delivered to the Indians on the Mercedes and Tuolumne Rivers, as per contract, from September 29th to October 24th, inclusive.
    “The amount being twenty-two hundred and forty-six dollars, which is to be paid out of the first appropriation by the government for such purposes.
    “Adam Johnston,
    “ U. S. Indian Agent. Valley of San JoaqnmT
    
    XII. No disapproval or complaint of the actions of the commissioners, agents, or subagent in any of the transactions herein set forth, either by the President, the Secretary of the Interior, or the Commissioner of Indian Affairs, appears in any public documents or are proved in this case.
    XIII. Henry Drought died in the year 1859. George G. Belt, who survived him, died, testate, after this action was commenced, and Bebeánna A. Belt, the present claimant, was appointed executrix of his will by the probate court of Merced County, California, July 10, 1809.
    XIV. In January, 1855, said George G. Belt & Co. executed an assignment of the claims set forth in receipts and vouchers numbered 2, 3,4, and 5, in finding XI, to Charles V. Stuart, and therein authorized him to collect and receive the same to his own use and benefit.
    In November, 1855, said Stuart filed his petition in this court to recover the amount of said vouchers thus assigned to him. This case went to trial, and on the 17th of January, 1859, this court entered the following decree: “ The court, having maturely considered the record in this case, are of opinion that the petitioner is not entitled to relief, and do determine accordingly.” The case was thereupon reported to Congress according-to the requirement of law then in force (Act of 1855, ch. 122, 10 Stat. L., 612), and Congress has never taken any action thereon. (Thirty-fifth Congress, second session, Rep. C. C., No. 190.)
    XV. The claims for beef and flour furnished to the Indians, upon which this action is founded, have never been paid for to the present claimant nor to any other person.
    
      Mr. John IJ. McPherson for the claimant:
    All the facts herein detailed-were considered in the case of Frémont v. The United States (2 C. Cls. R., 261), in which is a precisely similar case of a contract by Johntson for provisions for other Indians in his district. The court held upon the evidence now presented that he had authority to purchase, and gave judgment for the claimant, which judgment was paid.
    
      Mr. F. J. Lippitt (with whom was the Assistant Attorney-General) for the defendants :
    A former judgment bars both parties and privies. It is indifferent in which of these capacities Belt & Co. were related to the Stuart suit. If their assignments to Stuart were legal nullities, passing no interest, then Belt & Co. were substantially parties to it, since, under the terms of the assignments, the suit must be deemed to have been brought by their authority. He for whose benefit the former suit was litigated, whether the record show it or not, is deemed the real party. (10 Casey, 226, 228, 229, Peterson v. Lothrop.) It is enough if the former suit was brought by the party’s agent. (4 Hern., 329, Gastle v. Noyes.) So if the former suit was authorized or ratified by the real party. (22 Barb., 285, 286, Kent v. R. R. Oo.) The real party in interest is bound by the former judgment. (7 O. Cls. R., 523, Gill’s Case.)
    
    The former judgment is none the less a bar because of not being final until it has been passed upon by Congress. In the court in wliicb a judgment has been rendered it is res judicata until reversed.
    It is true-that the United States Supreme Court, in Spofford v. Kirk (97 U. S., 484), has recently held that an assignment of a claim against the United States is an absolute nullity under the statute of 1853, even as between the parties themselves. • But previously to that decision the law was held to be that the statute avoided such assignments as against the government only. Under the law as then held, Belt & Co.’s interest in those claims became vested in Stuart by virtue of their assignments. Public policy is strongly opposed to the upsetting of vested rights by a subsequent judicial decision overturning the law as it had been supposed to exist. The legal status of the parties in relation to the subject-matter of this controversy was, moreover, virtually settled by the judgment of this court in the Stuart Case, and it is now too late to disturb it.
    Johnston had no authority to make the purchases. Johnston derived no such authority from the commissioners. There is nothing in the record connecting these purchases by Johnston with the commissioners, or with either of them.
    The commissioners had no such authority themselves. Their powers were limited to “holding treaties” with the California tribes.
    The law provides in what manner purchases for the Indians shall be made. They must be made “by such person as the President shall designate for that purpose.” The agent) “together with such military officer as the President may direct, shall be present, and certify to the delivery of all goods and money required to be paid or delivered to the Indians.”
    The purchase was never ratified by the Indian Bureau nor by the. department.
    The purchases were never ratified by Congress. It is not pretended that there has been any express ratification by Congress of the particular purchases on which the present claims are founded. But Fremont’s Case (2 C. Ols. B., 461) is relied on as deciding that Congress, by certain legislative action, had virtually ratified the entire class of purchases to which those now in question belong.
    No claim can be set up under an implied contract of the government to pay the actual value of the supplies.
    
      The principle of an implied contract is applicable only where a party has received some benefit from a transaction by which he was not legally bound. But in this case no part of the supplies went to the use of the United States, or to any other use that inured to their benefit.
   Richardson, J.,

delivered the opinion of the court:

Upon the acquisition of California from Mexico, in the year 1848, and the discovery of gold in that newly acquired Territory, a sudden immigration of white population in large numbers overran and settled upon the lands, which up to that time had been occupied by the Indians, and to which they were supposed to have the title by right of possession.

The pioneer settlers and miners, bent on the acquisition of wealth from the rich gold fields in which the country abounded, bold and energetic, paid little or no regard to the rights of the Indians; and the natural and inevitable consequences, plunder, strife, murders, and war, very soon arose between the two races.

The general, prominent, and controlling facts concerning the early settlement of California, and the policy and conduct of the government and people of the United States towards the Indians within that Territory, have become so well known through official reports, public documents, judicial decisions, and authentic published narratives that they may be judicially taken notice of as part of the history of the country, and it is unnecessary to set them out in the findings or to recite them in the opinion of the court. (Frémont & Jackson’s Case, 2 C. Cls. R., 461; Frémont & Roach’s Case, 4 id., 252; De Celis’ Case, 13 id., 117.)

It is only the special facts and circumstances which have a direct and distinct bearing upon the issues involved in this case that it becomes important here to refer to.

In the spring of 1849 Adam Johnston was appointed sub-Indian agent on the Sacramento and San Joaquin Rivers, in California, and in the following November his district was reduced and his duties were confined to the valley of the San Joaquin only.

In the autumn of 1850 the encroachments of the whites upon the Indians had become great, and the troubles and con-diets between tbe two races bad increased to sucli an extent that tbe legislative and executive brandies of tbe government were moved to take active measures for tbe safety and protection of both peoples. On tbe 28th of September of that year Congress passed an act authorizing tbe President to appoint three Indian agents for California; and on the 30tk of September a small appropriation was made “ to enable tbe President to bold treaties with tbe various Indian tribes in tbe State of California.” (Chaps. 82, 91, 9 Stat. L., 519, 558.)

Under these acts Eedick McKee, George W. Barbour, and Oliver Wozencraft were immediately appointed Indian agents and commissioners to negotiate treaties with tbe Indians in California. After tbe passage of tbe Act February 27, 1851 (9 Stat. L., 586, ch. 14, § 3), requiring all Indian treaties to be negotiated by such officers and agents of tbe Indian Department as tbe President might designate for that purpose, they were continued in their offices as Indian agents, with tbe same authority to negotiate treaties and under tbe same instructions before given to them.

Tbe instructions to tbe subagent and to tbe agents and commissioners were of tbe most general nature. Tbe department, as they were officially informed, was in possession of little or no information respecting tbe Indians of California, and those officers were left very much to their own discretion and judgment in determining what course to pursue. Tbe desired object to be attained by tbe agents and commissioners was alone distinctly specified, and that was “by all possible means to conciliate tbe good feelings of tbe Indians, and to get them to ratify those feelings by entering into written treaties, bind-on them, towards tbe government and each other.”

Upon tbe arrival of tbe commissioners in California in January, 1851, they found that hostilities bad increased to an alarming degree. Tbe State troops bad been called out by tbe governor at tbe request of subagent Johnston, and war was flagrant.^ Tbe commissioners came to tbe determination at once that peace could never be restored while tbe Indian tribes remained in tbe mountains which tbe miners were overrunning in search for gold. In February they succeeded in entering upon negotiations with these Indians, and by tbe end of March following they bad concluded several treaties with different tribes. These treaties were all founded upon two conditions precedent, which have an important bearing upon this case: the one that the tribes in the mountains should descend to certain reservations in the plains which had been selected for them, surrendering their mountain territory to the United States; and the other that they should be supplied on these reservations with •certain quantities of beef and flour — a provision rendered nec•essary by the sterility of the soil and the absence of other ■means of support on the reservations. According to the reports of the commissioners, no other terms could have been agreed upon unless these had been first accepted. They were not only embodied in the treaties, among other provisions which have never been made public by the removal of the secrecy of the Senate in executive session in relation to them, but were immediately acted upon by both parties. The Indians removed to the reservations, and several tribes were placed in charge of Adam Johnston on what was called the Merced Reservation, within his district of the San Joaquin Valley. Other tribes were placed on other reservations.

In order to comply in part with the agreements made by the commissioners, Mr. Barbour, one of their number, entered into •a contract with John 0. Frémont to supply some of the tribes «o removed with beef and flour, and those provisions were supplied to them under that contract. (Act July 29, 1854, 10 Stat. L., 804, ch. 165; Senate Doc., Thirty-sixth Congress, first session, vol. 1, Rep. No. 111.)

Other similar contracts were made by Commissioner Wozen-craft with Samuel J. Hensley and with Samuel Norris. But Adam Johnston was left to provide for the tribes under his care on the Merced Reservation as best he could. The commissioners appeared to have given their direct attention to supplying the wants of the other tribes, and to have intrusted or abandoned the like duties in relation to those on the Merced Reservation to the subagent there in charge.

Under these circumstances Johnston supplied beef and flour to the tribes in his care through purchases from the claimants set forth in the findings, and through other parties. At the very outset, as soon as he began to furnish these provisions to the Indians, as early as June 21,1851, he wrote to the Commissioner of Indian Affairs explaining his action and giving his reasons for it. As he had then no specific instructions from the department on the subject, he asked expressly that if that or any other proceeding of his clid not meet the approbation of the department he should be immediately so informed.

The commissioners also kept the department advised of all then transactions as expeditiously as the then condition of the country in relation to the transmission of letters admitted.

The department, and through the department the President, seem to have approved all the acts and doings of the commissioner and of the subagent; and we are unable to find in the correspondence of the commissioner, in the public documents relating to Indian affairs, or in the Congressional reports, any evidence of disapprobation of what was done by either of them.

The treaties • were rejected for reasons which are unknown; but the government has availed itself of the preliminary arrangements and contracts between the commissioners and the Indians, and has retained the lands surrendered without making any further agreement or treaty for extinguishing the Indian title.

The question now to be determined is whether or not the United States are bound to pay for the beef and flour purchased from the claimant by subagent Adam Johnston, and supplied through him to the Indians on the reservation under his charge. This question must be settled with reference to the laws in force at the time the transaction occurred and not according to subsequent statutes which have materially restricted the powers of-public officers in relation to making contracts and incurring expenditures on behalf of the United States. The provisions which now form sections 3079,3709,3733, and 3744 of the Devised Statutes were not enacted until long after the contracts set forth in the findings in this case were entered into and fulfilled on the part of the contractors.

Nor did the Act May 1, 1820 (3 Stat. L., 568), ch. 52, § 6, afterwards superseded by the act of 1801, ch. 84, § 10, which is incorporated into the Devised Statutes, § 3732, then apply to the business of Indian affairs, but it was restricted by its very terms to the Secretaries of State, the Treasury, War, and Navy. When these transactions occurred in 1851 and 1852, Indian affairs were under the Secretary of the Interior. The restrictions of that section were not made applicable to all the departments until June 23, 1800, when the act of that date, ch. 205, § 3 (10 Stat. L., 102), was passed, or until the passage of the Act March 2, 1861 (12 Stat. L., 220, ch. 84, § 10).

Before the provisions of those statutes were enacted, in different years, the principal executive officers were in the habit of incurring liabilities on the part of the government in the performance of their general duties under any act of Congress, where not expressly restricted, with more regard to the object of the act than to any specific authority given by it in detail, with little reference to the amount of the appropriation, which was often inadequate at first, and with the view of afterwards applying to Congress for appropriations to meet the exiienses.

Claimants with whom such liabilities were incurred had no remedy except through Congress, since the government had not then consented to be, made defendants in any court or in any case. It was in part to relieve Congress from this class of claims that later, in 1855, this court was established.

By the Act June 30, 1834 (4 Stat. L., 735, ch. 162), a department of Indian affairs was established, with a Commissioner of Indian Affairs as its immediate executive head, and with supervision and appellate powers vested in the Secretary of War. (See also Act July 9, 1832, 4 Stat. L., 564, ch. 174.) The only direction there expressed in relation to purchases for Indians is foun<l in section 13, as follows :

“All merchandise required by any Indian treaty for tlie Indians, payable after making such treaty, shall be purchased under the direction of the Secretary of War [afterwards changed to Secretary of the Interior] upon proposals to be received, to be based on notices previously to be given, and all merchandise required to the making of any Indian treaty shall be purchased under the order of the commissioners, by such persons as they shall appoint, or by such person as shall be designated by the President for that jmrpose; and all other purchases on account of the Indians, and all payments to them of money or goods, shall be made by such person as the President shall designate for that purpose. And the superintendent, agent, or subagent, together with such military officers as the President may direct, shall be present and certify to the delivery of all goods and money required to be paid or delivered to the Indians.”

The same act provides, in section 7, that—

“ It shall be the general duty of Indian agents and subagents to manage and superintend the intercourse with the Indians within their respective agencies agreeably to law j to obey all legal instructions given to them by the Secretary of War [after-wards changed to Secretary of the Interior], the Commissioner of Indian Affairs, or the superintendent of Indian affairs, and to carry into effect such regulations as may be prescribed by the President.”

By the Act March 3, 1849 (9 Stat. L., 395, ch. 108, § 5), establishing the Interior Department, the supervisory and appellate powers previously exercised by the Secretary of War in relation to all the acts of the Commissioner of Indian Affairs-were transferred to the Secretary of the Interior, and Indian affairs were placed under the newly-created department.

If the articles furnished by the claimants in this case come within either of the classes referred to in section 13 of the act of 1834 above set out, they were “ merchandise required to the making of a treaty,” which were to be purchased under the order of the commissioners; or they were such “other purchases” as were to be made by such person as the President should designate for that purpose. There can be no doubt that the' action of the commissioners designated to make the treaties with these Indians, in placing certain tribes on a reservation in charge of Subagent Johnston, to be taken care of and provided for by him, with all the attendant circumstances, was sufficient authority from them, so far as such authority was necessary, for him to furnish the provisions which they had agreed should be delivered to those tribes; and it is equally clear that the action of the Commissioner of Indian Affairs, in approving of the doings of Subagent Johnston, and of the course which in advance he gave notice that he should pursue, in relation to supplying the Indians under his charge with the beef and flour required by the terms of the negotiations, was equivalent to and became substantially aNlesignation by the President for that purpose. It was a complete ratification of what he had done, and rendered his acts binding on his principal from their date as fully as though he“had possessed original authority. Omnis ratihabitio retro trahitnr et mandato priori ceqidparatur.

Separated from each other as were the commissioners, the sub-agent, and executive officers at Washington, by long distances, and with limited means of communication, it was impracticable, if not impossible, in the exigencies of the case, to obtain in advance the formal designation and authorization which might have been required under other circumstances. A subsequent ratification was sufficient to cure that informality, and that may be inferred from the official reports and general conduct of the superior officers in relation to the matter.

The action of the Commissioner of Indian Affairs must be presumed to be the action of the President, according to the well-settled, principle adopted in practice and recognized by tbe courts, that tbe President acts in the performance of most of Ms duties through an appropriate department of the government and through the chief officers charged with the immediate supervision of the affairs of that department. (Wilcox v. Jackson, 13 Pet., 498.)

The seventh section of the act above cited defines the duties of subagents in very general terms, and requires them to obey all legal instructions given to them by the Secretary of War (or by the Secretary of the Interior according to the subsequent act), and to carry into effect such regulations as the President might prescribe. The approval by the President and the Secretary of the Interior, through the Commissioner of Indian Affairs, of acts previously done by a subagent was a-substantial compliance with this provision of law.

The requirement that “the superintendent, agent, or sub-agent, together with such military officer as the President may direct, shall be present and certify to the delivery of all goods or money required to be paid or delivered to the Indians,” was a direction to the public officers charged with the duty of rnalc-ing or superintending such delivery. It was certainly no fault of the sellers of goods that the government officers did not, or as in this case apparently could not, comply with that provision of the statute. They ought not to be charged with the entire loss of their property on account of such neglect of the defendants’ officers. There is no doubt as to the delivery of the goods upon which the present claim is founded, nor as to their value.

This is not an action for the non-performance of a contract from which the defendants have had no benefit, but is an action for the value of goods actually sold and delivered for the use and benefit of the United States. That the beef and flour were applied to the legitimate use of the government the findings leave no room for doubt. The United States have retained the lands for the surrender of which by the Indians these supplies were given as part of the consideration agreed upon by their agents. They have never obtained or attempted to obtain any other extinction of the Indian title. That they have not performed all the terms agreed upon is no .reason why they should not pay for such purchases and deliveries of goods as were actually made through contracts with their agents as part 'of the consideration. (Clark v. United States, 95 U. S., 539; Brooke's Case, 2 C. Cls. R., 180; Johnson's Case, 4 id., 248.)

Upon all the facts in the case, we are of opinion that the defendants became liable for the payment, at their actual and fair value, of the goods sold and delivered by the original claimants as set forth in the findings.

In this opinion we are strengthened by the course which 'Congress has taken in relation to several and to all similar claims whichit has acted upon, growing out of the supply of provisions to the Indians removed in other cases to reservations under the agreements made by these very commissioners at the same time and under the same circumstances as are set forth in these findings, and by the implied legislative recognition of the obligations incurred by the government in these transactions.

By the Act July 29, 1854 (10 Stat. L., 804, ch. 165), Congress directed the Secretary of the Treasury to pay John C. Frémont $183,825, for b&ef delivered to Indians who, as wé have before stated, were removed to reservations by the commissioners herein referred to.

Samuel J. Hensley brought an action in this court, in 1859, to recover for supplies furnished under like circumstances, and the court decided against him. But upon the report of the facts of the case, as was then required by law, Congress passed an act allowing to him the amount of his claim, $96,375. (Act June 9, 1860, 12 Stat. L., 847, ch. 86.)

Samuel Norris brought an action in this court on a like claim, and the court decided against him. Upon the report to Congress, they passed a joint resolution referring the claim back to the court “for examination and allowance,” and upon a rehearing the claim was allowed and judgment was rendered against the defendants for $69,900, and no appeal was taken. (Resolution June 22, 1866, No. 56, 14 Stat. L., 608; Norris’s Case, 2 C. Cls. R., 155.)

Since then this court, under its extended power to enter judgments, has passed upon two other similar claims growing out of these same transactions of the commissioners appointed to hold treaties with the California Indians in 1851 and 1852, and has given judgment in favor of the claimants in each case, in one for $-13,333, and in the other for $46,686. (Frémont et al. v. United States, 2 C. Cls. R., 461, and Frémont et al. v. United States, 4 id., 252.) Those judgments were acquiesced in by the defendants, no appeal having been taken by the Attorney-General.

So far as the records show, it appears that all claims of this nature which have been made against the government in these California Indian transactions have thus been paid by the United States, except this one now under consideration.

On the part of the defendants, it is alleged that a former judgment has been recovered in favor of the defendants on the claims here in suit, and that judgment is now set up as a bar to this action.

It appears that in January, 1855, Belt & Co. made an assignment of these claims, or of part of them, to one Charles V. Stuart ; that Stuart commenced proceedings upon them in this court by petition dated or sworn to November 10, 1855; that the case went to trial, and on the 17th of January, 1859, a decree was entered of record that “ the court, having maturely considered the record in this case, are of opinion that the petitioner is not entitled to relief, and do determine accordingly.”

The whole record and evidence, with the opinion of the court, were then transmitted to Congress for its consideration, in accordance with the requirement of the then existing statute, since repealed (Act February 24, 1855, 10 Stat. L., 613, ch. 122, § 7). Congress has never taken any action upon the case beyond causing the report received from this court to be printed.. (Thirty-fifth Congress, second session, Rep. C. C., No. 190.)

It has been authoritatively determined by the Supreme Court that all assignments of claims against the United States made before the issuing of warrants for their payment are absolutely void, not only as against the government, but as between the assignors and assignees themselves, under the provisions of the Act February 26, 1853 (10 Stat. L., 170, ch. 81, § 1). These provisions were in force when the assignment set up by Stuart was made, and now form section 3477 of the Revised Statutes. (United States v. Gillis, 95 U. S., 407; Spofford v. Kirk, 97 U. S., 484.)

Belt & Co. had, therefore, an undoubted right, at any time before actual payment, to repudiate their assignment to Stuart; and this they’ did when in February, 1866, they brought this action to recover upon the same claims in their own names.

Moreover, Congress never acted upon the case transmitted to them by this court, and it never came to a final judgment there. At that time this'court had no jurisdiction to enter final and eonclusive judgments. It was required only to investigate claims and report upon them to Congress. There the final action was to be had.

By section 8 of the act of 1855, above referred to, it was provided “ that the claims reported upon adversely shall be placed on the calendar when reported, and if the decision of said court shall be confirmed by Congress said decision shall be conclusive.”

It will thus be seen that Congress did not intend that the decisions of this court as constituted before the Act March 3, 1863 (12 Stat. L., 765, ch. 92), should be conclusive unless confirmed by legislative action.

When the act of 1863 was passed, enlarging the jurisdiction and powers of this court, the present claimant, or those whom she represents, had a right to bring an action upon the claims now under consideration. They would have had that right even if they had been parties or privies in the case of Stuart, then pending in Congress, since- there was nothing in the act to exclude them from the benefit of its provisions. It is clear that the proceedings in the case of Charles Stuart are therefore no bar to the present action.

On the whole case the claimant is entitled to recover the sum of $10,715.19, and null have judgment for that amount.  