this case were counsel for Mrs. Hatfield. The court must therefore conclude that not being of counsel for Mrs. Hatfield was the reason why they paid no attention to the case until after they had heard of the decision of the court in her case. The court entertaining the belief that Mr. Flesher was their counsel, when he arose and addressed the court it did not hesitate to recognize him as counsel in the case. I have carefully considered the affidavits filed in support of the charges contained in the petition of Stewart Wood and others for rules against Henry C. Flesher and Maynard F. Stiles, upon which the rules for contempt were awarded, and which are relied on to show that there was a collusion between Flesher and Stiles to present to the court for its consideration a fictitious case, and to practice a fraud upon it. There is much in the affidavits which might tend to arouse some suspicion of irregularity, but there is an entire absence of any specific proof that tends to sustain the charge of a conspiracy upon the part of Flesher and Stiles to present to the court a moot case, in order to extract an opinion from the court upon the question raised by the pleadings. As we have said, the affidavit of Mr. Sheppard, which undertakes to give what occurred between him and Mrs. Hatfield, and which the court supposes is largely relied upon to sustain the charge of collusion and fraud between Flesher and Stiles, fails to state any fact from his personal knowledge, and this criticism applies with equal force to all of the affidavits in support of the alleged charges. At the time when the case was under consideration before the court, it was frankly and freely stated on both sides that it was the desire of counsel to get an early hearing of the case, without the delay which necessarily arises from long litigation in an action of ejectment. There was but one question before the court, and that was a constitutional one, and, if the court held with the defendant upon that question, then it was conceded that the trial of the action at law would be unnecessary; but, if the court held with the plaintiff, then the right of the defendant to set up any other defense that might be relied upon in the case was not in any wise abridged. There is no specific evidence to be found in any of the affidavits in this case which fixes the imputation of fraud and collusion between the counsel who appeared in the case. The facts stated in the affidavits of the petitioners, so far as they relate to this charge, are denied by both Stiles and Flesher in their affidavits, and, to my mind, successfully dispose of the question of fraud and collusion. I have to some extent relied upon my personal recollection of Mr. Flesher's connection with the case, which recollection is sustained by the records of the court, but it is unncessary for the court to rely upon its recollection. Mr. Flesher's affidavit disclosed his entire connection as counsel in the case, and he produced a letter from Mrs. Hatfield of the date of February 27, 1901, in which she recognized him as her counsel, and that, too, after it appears that certain interested parties had visited her and tried to induce her to employ other counsel. It is very apparent to my mind, from the evidence in this case, that the fears of Mrs. Hatfield had, to a great extent, been worked upon, and that, had she been left alone and not been interfered with, possibly the controversy that has now arisen would never have transpired. Be that as it may, in the letter just referred to she recognizes Mr. Flesher

as her counsel, and she is bound by his actions. Many courts have held that, after counsel have appeared in a case, every step taken in the case, so long as the relation of counsel and client exists, must be taken by counsel, and is binding upon the client. In looking over these affidavits, it does not appear that any improper motive could have been attributed to Mr. Flesher in taking the course he did. Both Flesher and Stiles have filed their affidavits denying in most positive terms the charge of collusion, or any attempt to impose upon the court. The statements of these gentlemen, both long known to the court, are entitled to full credit, and must be accepted by the court as conclusive of their innocence on the charge of contempt and collusion, unless their evidence is overthrown by evidence so conclusive that the court would feel constrained to sustain the charge. The burden of proof is upon the petitioners to make good the charge. Rutledge v. Waldo et al. (C. C.) 94 Fed. 265. The affidavits of both Stiles and Flesher show that controversy and issue as made by the pleadings to be real, and not fictitious, and that it was in no sense a legal fraud to seek, under the circumstances, an early decision as to the forfeiture of the land in controversy, especially when it might save the great expense incident to a trial in ejectment for the recovery of the land.

The case we have under consideration resembles very closely the similar one of Robinson v. Lee (C. C.) 122 Fed. 1012, in which Judge Simonton, of this circuit, held that where it appears "that the controversy is a real one, and when the defendant swore that it was, then it was not in any sense a legal fraud to form a purpose in order that there might be a judicial determination of the validity of the question at issue." This rule, as laid down by that eminent jurist, seems to apply with much force to this case. And the application of this principle to the case under consideration will exonerate both Mr. Stiles and Mr. Flesher from any improper professional conduct in the case. I reach the conclusion that the evidence fails in every essential element to sustain the grave charge made against the respondents. For this reason, the court is of the opinion that the motion for rules for contempt against Flesher and Stiles should be dismissed.

MCBRIDE et al. v. FARRINGTON.

(Circuit Court, W. D. New York. May 12, 1904.)

No. 22.

1. INDIAN TERRITORY-INDIAN LANDS-MINERAL LEASES-VALIDITY. By treaty of 1855, 10 Stat. 1116, a certain district within the Indian Territory was set off to the Choctaw and Chickasaw Nations, to be held in common, under the control of the tribal organizations in the district of its own jurisdiction. By Act Chickasaw National Legislature, passed 1886 (Laws Chickasaw Nation, p. 188), any resident citizens (not less than three) were authorized to form a corporate company to engage in developing coal mines. This act was amended September 24, 1887 (Laws Chickasaw Nation, p. 190), so as to include petroleum, natural gas, and asphaltum. Reservation of all lands containing deposits of such minerals was made by Act Cong. June 28, 1898. c. 517, § 13, 30 Stat. 498, which required payment of royalties for the benefit of the Indians; and the Chickasaw

statute also provided that after the formation of the company, and on compliance with such statute, the corporation was authorized to contract with capitalists to develop and work the mines. Held, that such acts impliedly authorized the leasing of coal and oil lands allotted to such Indians for a limited period for the tribal or individual benefit of such Indians, and that such leases were not void on their face.

2. SAME CORPORATIONS-STOCKHOLDERS-INDIVIDUAL LIABILITY-STATUTES. Where a corporation was organized under the laws of Wisconsin to develop mining lands in Indian Territory, and its stock was used in payment for an assignment of leases of Chickasaw mineral lands, such leases not being void ab initio, the burden of proof was on the plaintiff to show actual fraud in the assignment of such leases to the corporation, in an action to enforce a stockholder's personal liability for corporate debts under the statutes of that state declaring that a stockholder shall be personally liable where stock has been issued, except for money or property estimated at its true value actually received by the corporation equal to the par value of the stock.

Where a creditor of a corporation rendered services sued for without investigating the corporation's financial condition, and did not rely on the fact that the stock of the corporation was fully paid, he was not entitled to enforce a statutory stockholder's liability for debts on the ground that the stockholder's subscription had been paid by a transfer of the property at an excessive valuation.

Roberts, Becker, Messer & Groat (Tracy C. Becker and Alfred F. Becker, of counsel), for plaintiffs.

Brundage & Dudley (Frank Brundage, of counsel), for defendant.

HAZEL, District Judge. This is an action at law, brought by judgment creditors of the Western Oil & Mining Company, a corporation, against the defendant, to enforce his liability as a stockholder therein, under chapter 86 of the Revised Statutes of the State of Wisconsin for 1878, and acts amendatory thereof and supplementary thereto, pursuant to which the company was incorporated. Such organization and incorporation were effected on September 26, 1896, with a capital of $1,500,000 divided into shares of the par value of $10 each. Its primary objects and purposes were to engage in mining for coal, iron ore, and other minerals, and drilling for petroleum, in the Indian Territory and elsewhere; to acquire lands and property by purchase; and to carry on mining, prospecting, refining, and manufacturing the products developed by the corporation. It appears from the proofs that one Frank Burke, Jr., for himself and as trustee for the defendant and others interested in the formation of the company, assigned to the corporation at the time of its organization three certain leases or charters of oil and mineral lands situated in Indian Territory. The charters were apparently purchased by Burke from the Oil Springs Mining Company in October, 1890, the Gold Mining Company in September, 1896, and the Anvil Rock Mining Company in June, 1896, respectively. These charters were concededly granted to the companies mentioned some time in the month of October, 1890, by the Chickasaw Nation. The original charters were not produced at the trial. The defendant claimed they were lost. The three assignments from Burke to the Western Oil & Mining Company purported to transfer and convey the exclusive right to prospect for and mine, coal, petroleum, and

in general all minerals to be found upon the land described therein. According to the plaintiffs' theory, the capital stock was not issued for property sold to the company, as contemplated by the Wisconsin statute, for the reason that the leases in question were void, and therefore no actual fraud need be proven. The Wisconsin statute in terms provides that a stockholder shall be personally liable where stock has been issued by the corporation, except for money or property estimated at its true value actually received by it equal to the par value thereof. Were the leases and assignments to the corporation invalid? It cannot be denied that the different tribes of Indians from the earliest period have been under the control and protection of the government of the United States. The lands ceded to them have been guarded by the United States from encroachment and acquisition by others without their consent. The Cherokee Trust Funds, 117 U. S. 288, 6 Sup. Ct. 718, 29 L. Ed. 880. By the treaty of 1830 (7 Stat. 333) the United States granted to the Choctaw Nation the right in fee simple to occupy certain lands west of the Mississippi river during their existence as a nation. By the terms of the treaty this grant became liable to transfer and alienation only with the consent of the United States. The treaty of 1855 (10 Stat. 1116) provides for a renewal of the earlier treaty, and that the land therein described be held in common by the Choctaw and Chickasaw tribes or bands of Indians. A certain district within the territory conveyed was set off or assigned to each nation. It was further provided that none of the lands embraced within the limits specified could be sold unless both tribes or bands consented thereto. In the event of race extinction, or abandonment by the Indians of their tribal relations, the territory ceded to them as a nation was to revert to the United States. It is shown by the proofs that the lands set aside for the use of the Choctaw and Chickasaw Nations is still held by them in common, and is under the control of each tribal organization in the district of its own jurisdiction. As we have seen, it is contended by the plaintiffs that the leases or charters, together with the assignments which are the subject of this action, are invalid ab initio, and on account thereof the title to lands, privileges, and immunities purporting to be conveyed failed, and that, accordingly, no valid consideration whatever passed for the issue of stock to Burke and to the defendant. The specific grounds upon which the invalidity of the documents mentioned are claimed to be absolutely void are tersely set forth in plaintiffs' brief, as follows:

"First. The three leases or charters had no legal validity at any time, because they were issued in part to noncitizens of the Chickasaw Nation, in violation of the United States statutes, the statute of that nation, and the treaties. Second. The rights acquired under such charters or leases, if any, were assigned to noncitizens of the tribe, in violation of said statutes and treaties. Third. The lease of these lands to noncitizens and the assignment of said leases to noncitizens constituted an abandonment of the land, forbidden by said treaties under penalty of forfeiture of the land by the Indians."

The point that the source of title is not derived from the owners in common is not pressed. That the charters or leases were granted to the companies heretofore named pursuant to an act of the Legislature of the Chickasaw Nation passed 1886 (Laws Chickasaw Nation, p. 188) is admitted. Such act in part reads as follows:

"That any resident citizens (not less than three) of the Chickasaw Nation who may wish to form a corporated company to engage in developing coal mines, and to transport, ship or sell all coal mined beyond the limits of this nation shall be authorized to do so," etc.

This provision was subsequently, on September 24, 1887 (Laws Chickasaw Nation, p. 190), amended so as to include petroleum, natural gas, and asphaltum. The amendment also contained a provision for the payment of royalties amounting to 2 per cent. on all gross sales of said products. The stipulation of facts shows that the leases or charters in question were granted by the national secretary of the Chickasaw Nation to a company composed of three or more citizens of the Chickasaw Nation and others. From the phrasing of the introductory clause describing the lessees, it is thought by counsel for plaintiffs that the grant and privileges specified are restricted to citizens of the Chickasaw Nation alone, and that, as such leases seem to run to citizens and noncitizens of the nation, they are in contravention of the Chickasaw statute and of the laws of the United States. No testimony is found in the record that the words "and others" meant to preclude white persons from joining in the charters, and such a presumption is not warranted. But assuming the leases and grants were to citizens of the nation and to white persons, must such enactment providing "that any resident citizens (not less than three), may form a corporate entity to engage in mining coal and other minerals in the Indian Territory," be strictly construed to preclude white persons from participation in such companies? Upon this question, according to plaintiffs' view, depends the title of the leases in controversy and any rights secured thereunder. A careful examination of decisions by the Supreme Court of the United States interpreting analogous treaties discloses that lands ceded to Indian tribes by the government of the United States are held for their separate benefit. Within the boundary of the ceded territory, the Indians mentioned secured control of their tribal lands by treaty obligations. The cession of these lands with the inalienable right of control secured thereby during tribal existence could be defeated only by the reservation to the United States contained in the grant. My attention is called to no statute or decision prior to the passage of the Curtis Act of June 28, 1898, c. 517, 30 Stat. 495, holding that the Chickasaw Nation had no authority under the then existing laws to lease their possessions for a limited period to white persons for their tribal or individual benefits. On the contrary, many adjudications are found expressly recognizing such right, and enforcing contracts arising thereunder. It is not necessary, it is thought, to go into the numberless ramifications of Indian statutes and decisions of the courts construing them. Much time has been expended by the court in attempting to trace the multitudinous and correlative acts of Congress, inhibitive and permissive, all tending towards a faithful conservation of our treaty stipulations. Although the Chickasaw Nation, as has been said, was allowed by the government of the United States to make laws for the protection of its members and property, it is nevertheless quite well settled that Congress has the undoubted right to supersede a prior treaty, and to exercise such paramount authority over the nation as, in effect, may curtail and diminish their tribal prerogative. U. S. v.