By Act May 1, 1888, entitled "An act to ratify and confirm an agreement with the Gros Ventre, Piegan, Blood, Blackfeet, and River Crow Indians in Montana, and for other purposes," the United States, in consideration of certain cessions and relinquishments on the part of those Indians, agreed

"To advance and expend annually for the period of ten years after the ratification of this agreement, under direction of the Secretary of the Interior, for the Indians now attached to and receiving rations at the Fort Peck agency, one hundred and sixty-five thousand dollars; for the Indians now attached to and receiving rations at the Fort Belknap agency, one hundred and fifteen thousand dollars, and for the Indians now attached to and receiving rations at the Blackfeet agency, one hundred and fifty thousand dollars, in the purchase of cows, bulls, and other stock, goods, clothing, subsistence, agricultural and mechanical implements, in providing employees, in the education of Indian children, procuring medicine and medical attendance, in the care and support of the aged, sick, and infirm, and helpless orphans of said Indians, in the erection of such new agency and school buildings, mills, and blacksmith, carpenter, and wagon shops as may be necessary, in assisting the Indians to build houses and inclose their farms, and in any other respect to promote their civilization, comfort, and improvement: Provided, that in the employment of farmers, artisans, and laborers, preference shall in all cases be given to Indians residing on the reservation who are well qualified for such positions: Provided further, that all cattle issued to said Indians for stockraising purposes, and their progeny, shall bear the brand of the Indian Department, and shall not be sold, exchanged, or slaughtered, except by consent or order of the agent in charge, until such time as this restriction shall be removed by the Commissioner of Indian Affairs." 25 Stat. 114, c. 213, art. 3.

And article 5 of the same act is as follows:

"In order to encourage habits of industry, and reward labor, it is further understood and agreed, that in the giving out or distribution of cattle or other stock, goods, clothing, subsistence, and agricultural implements, as provided for in article 3, preference shall be given to Indians who endeavor by honest labor to support themselves, and especially to those who in good faith undertake the cultivation of the soil, or engage in pastoral pursuits, as a means of obtaining a livelihood, and the distribution of these benefits shall be made from time to time, as shall best promote the objects specified."

By article 3 of the agreement with the Indians of the Blackfeet Indian reservation in Montana, of date September 26, 1895, it was agreed:

"That in the employment of all agency and school employees, preference in all cases be given to Indians residing on the reservation, who are well qualified for such positions; and that all cattle issued to said Indians for stock-raising purposes, and their progeny, shall bear the brand of the Indian Department, and shall not be sold, exchanged, or slaughtered except by the consent of the agent in charge until such time as this restriction shall be removed by the Commissioner of Indian Affairs." Act June 10, 1896, c. 398, 29 Stat. 355.

By Act July 4, 1884, c. 180, par. 3, 23 Stat. 76, 1 Supp. Rev. St. p. 450, it was provided:

"That where Indians are in possession or control of cattle or their increase, which have been purchased by the government, such cattle shall not be sold to any person not a member of the tribe to which the owners of the cattle belong, or to any citizen of the United States, whether intermarried with the Indians or not, except with the consent, in writing, of the agent of the tribe to which the owner or possessor of the cattle belongs. And all sales made in violation of this provision shall be void, and the offending purchaser on

conviction thereof shall be fined not less than five hundred dollars, and imprisoned not less than six months."

By Act June 7, 1897, c. 3, 30 Stat. 62, 90, it is provided: "That all children born of a marriage heretofore solemnized between a white man and an Indian woman by blood and not by adoption, where said Indian woman is at this time or was at the time of her death recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs or belonged at the time of her death, by blood, as any other member of the tribe, and no prior act of Congress shall be construed as to debar such child of such right."

Sections 2127 and 2138 of the Revised Statutes are as follows: "Sec. 2127. The agent of each tribe of Indians, lawfully residing in the Indian country, is authorized to sell for the benefit of such Indians any cattle, horses, or other live stock belonging to the Indians and not required for their use and subsistence, under such regulations as shall be established by the Secretary of the Interior. But no such sale shall be made so as to interfere with the execution of any order lawfully issued by the Secretary of War, connected with the movement or subsistence of troops.

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"Sec. 2138. Every person who drives or removes, except by authority of an order lawfully issued by the Secretary of War, connected with the movement or subsistence of troops, any cattle, horses, or other stock from the Indian country for the purposes of trade or commerce, shall be punishable by imprisonment for not more than three years, or by a fine of not more than five thousand dollars, or both."

These agreements and statutory enactments very clearly show that cattle purchased by the government and issued to the Indians of a tribe are not theirs absolutely and unconditionally, but, as is expressly provided by law, are provided and issued for the purpose of promoting "their civilization and improvement," and to "encourage habits of industry" among them, the alienation and slaughtering of which cattle, without the consent of the government's agent in charge of the reservation, is expressly forbidden. The right and duty of the government to protect such conditional ownership of the Indians does not admit of doubt. United States v. Flournoy Live Stock & Real Estate Company (C. C.) 69 Fed. 886; Id. 71 Fed. 576; United States v. Mullin (D. C.) 71 Fed. 685; United States v. Winans (C. C.) 73 Fed. 72; Beck v. Real Estate Co., 65 Fed. 30, 12 C. C. A. 497; Truscott v. Hurlbut Land & Cattle Company, 73 Fed. 64, 19 C. C. A. 374, and cases supra.

The act conferring citizenship, with its accompanying rights, upon Indian women who marry white citizens of the United States, expressly declares, as has been seen, that nothing in the act "shall impair or in any way affect the right or title of such married woman to any tribal property or interest therein." The marriage of Josephine Hall to John Hall did not, therefore, extend her rights in the cattle in question, which remained precisely as they were before such marriage.

It is provided by a statute of Montana that:

"If personal property attached be claimed by a third person, he shall give aotice thereof to the sheriff and deliver to him an affidavit stating his claim, ownership, and a description of the property, and unless the plaintiff within ten days after receiving notice thereof give the sheriff a good and sufficient bond to indemnify him against loss or damage by reason of retaining said property, the sheriff shall deliver the same to such person." Section 906, Code Civ. Proc. Mont.

And it is insisted on the part of the plaintiffs in error that, if the cattle in question were the property of Josephine Hall, the giving of the notice and the making of the affidavit provided for by this statute "is a condition precedent to Josephine Hall's right of action against the sheriff for the conversion of this property." A sufficient answer to this suggestion is that this action is brought by the United States, and that its rights in a governmental matter are not affected by state enactments. Pond et al. v. United States et al., 111 Fed. 989, 49 C. C. A. 582, and cases there cited. We need not, therefore, inquire whether or not section 906 of the Montana Code, concerning the claim and delivery of personal property, could operate to defeat an action for the conversion of such property, where no notice or demand prior to the bringing of suit is alleged or shown. Nor did the court below err, as is contended on behalf of the plaintiffs in error, in refusing to instruct the jury that, if the cattle in question were in the possession of John Hall when they were. seized, the defendant Taylor would not be liable, unless Josephine Hall had designated the cattle belonging to her, and demanded their return, with which demand the sheriff refused to comply. It appears from the evidence, as has been said, that, notwithstanding her marriage to John Hall, Josephine Hall continued to actually reside on the reservation, and received from the government its regular issues of cattle and rations, along with the other Indians of the tribe. It further appears that prior to her receipt of any cattle from. the government her father gave her three head, her uncle one, and her brothers four, making eight head in all, and that in the years. 1895 and 1896 eleven head were issued to her by the government, and in 1901 seven head more. Rule 360 of the Regulations of the Indian Office provides as follows:

"When cattle are issued to Indians, either for work oxen or for breeding purposes, each animal must be branded, in addition to the I. D. brand, with a private mark to indicate the person to whom it is issued. A record of such private marks must be kept in the agency office. The agent is also required to see that the increase of all issued cattle is similarly branded." Regulations of the Indian Office, 1894, p. 76.

All of the cattle issued to Josephine Hall were, in accordance with the foregoing regulations of the Indian Department, branded with the letters "I. D." (indicating "Indian Department"), and it appears that a private brand, "B. E.," signifying "Beaver Eyes" (the Indian name of Josephine Hall), was selected by the agent of the reservation for her, and also placed upon the cattle issued to her. It further appears that in the year 1897 Josephine Hall purchased from one Gardiner a brand called the "Y. G." brand, and from that time on her cattle and the increase thereof were branded with the I. D. and the Y. G. brands. John Hall, it appears, was the owner of a brand spoken of in the record as the "Reel" brand, consisting of a cross with a "T" on each end of it; and he, also, had some cattle with his brand running on the reservation. It appears from the evidence that in making the levy the deputies of the defendant sheriff entered upon the reservation and there rounded up cattle that were herding together, including the cattle of Jose

phine Hall, as well as some of John Hall. They also levied upon. 19 head at the place of one Prendergast, most of which were branded with the I. D. and Y. G. brands, which had been driven. there by John Hall en route to Browning for shipment to Chicago, provided (according to John Hall's testimony) a permit could be obtained from the Indian agent at Browning consenting to the shipment of Mrs. Hall's cattle. The evidence, however, is that Mrs. Hall did not authorize her husband to sell her cattle, and did not know that he had driven any of them away, for the purpose of shipment or otherwise.

The obvious duty of an officer in executing a writ of attachment is, as held by this court in St. Paul, etc., Railway Company v. Drake, 44 U. S. App. 271, 276, 72 Fed. 945, 19 C. C. A. 252, to levy upon property of the defendant to the writ, and not upon the property of somebody else. He has, as was said by the Supreme Court in Buck v. Colbath, 3 Wall. 334, 343, 18 L. Ed. 257

"A very large and important field for the exercise of his judgment and discretion, first, in ascertaining that the property on which he proposes to levy is the property of the person against whom the writ is directed; secondly, that it is property which by law is subject to be taken under the writ; and, thirdly, as to the quantity of such property necessary to be seized in the case in hand. In all these particulars he is bound to exercise his own judgment, and is legally responsible to any person for the consequences of any error or mistake in its exercise to his prejudice. He is so liable to plaintiff, to defendant, or to any third person whom his erroneous action in the premises may injure."

Even if it be conceded that the different brands upon these cattle were not of themselves enough to put the officer upon inquiry as to their ownership, it appears from the testimony of the deputy sheriff who made the levy that he had sufficient knowledge of a controversy to put him upon inquiry as to the ownership; his testimony upon redirect examination being:

"I was directed specifically and positively to take all the Y. G. cattle. Those were Mrs. Hall's cattle, or considered as hers in the neighborhood, from rumor."

The doctrine relating to "confusion of goods," relied on by counsel for the plaintiffs in error, has no application to cattle and horses, and things of a similar nature, that may be readily identified. The Idaho, 93 U. S. 575, 23 L. Ed. 978; Claflin v. Beaver (C. C.) 55 Fed. 576; Carlton v. Davis, 8 Allen (Mass.) 94; Moore v. Bowman, 47 N. H. 494, 502; Capron v. Porter, 43 Conn. 383; Brown v. Bacon, 63 Tex. 595; Drake on Attachment (7th Ed.) § 199.

In the course of the trial the defendant McKnight testified, in effect, that prior to the commencement of his action against John Hall he went to the ranch of the latter for the purpose of collecting his note, and that Hall there said to him, "I have got the cattle all rounded up and intend to ship them to Chicago from Baltic in a few days," but that he (McKnight) replied that it would be more satisfactory to him for Hall to settle the note before he shipped the cattle; that Hall said:

"All right; I will come in and square this. I will pay you this as I can get the money from Kingsbury and Davies."

An objection and motion to strike this testimony out having been made, the court said:

"Do you expect to prove that he had these cattle and owned them? If so, you must prove it by something more than John Hall's declaration."

To which counsel for the defendants responded:

"We do, and we expect to offer to prove by this witness that John Hall was the owner of the cattle whose conversion is now being sued for; that he was in possession of them, and about to ship them to Chicago, and while exercising acts of ownership and control over these very cattle he offered to mortgage them to McKnight to secure his debt to him, or, if McKnight would wait until he shipped them to Chicago, he would turn over the proceeds of the sale of them to McKnight, and stated to McKnight that the cattle were his. This offer of proof is made for the purpose of showing that the cattle belonged to John Hall, and also for the purpose of impeaching Hall as a witness. (Motion to strike [out] granted, and offer of proof denied by the court. The defendants excepted.)"

It is insisted on the part of the plaintiffs in error that such declarations of John Hall in respect to the ownership of the cattle were admissible. We do not think so. Conceding, but without holding, that the declarations of one in possession of personal property, in respect to the character of such possession, are admissible in evidence against strangers on the issue of ownership, yet an insuperable objection to the proposed declarations in the present case is that they were not made at a time when they could be properly regarded as a part of the res gesta. Mutual Life Insurance Company v. Logan, 87 Fed. 637, 645, 31 C. C. A. 172; Mack v. Porter, 72 Fed. 236, 242, 18 C. C. A. 527; Crawford v. Crawford (Kan. Sup.) 55 Pac. 812; Low v. Schaffer (Or.) 33 Pac. 679; Alexander v. Jennings, 78 Tenn. 419; Coxe v. Milbrath, 110 Wis. 499, 86 N. W. 174; 1 Greenleaf on Evidence, § 110; Wharton on Evidence, § 259; 24 A. & E. Encyc. of Law (2d Ed.) p. 691.

It is further contended on the part of the plaintiffs in error that the court below erred in sustaining objections to questions to Josephine Hall by which it was sought to show that she had told the defendant McKnight in 1897 that the cattle issued to her by the government had been taken by people to whom she was indebted, and in sustaining like objections to a question put to the witness McKnight. The ruling of the court below was right. These cattle, like the personal property spoken of by the Supreme Court in United States v. Rickert, 188 U. S. 432, 443, 23 Sup. Ct. 478, 483, 47 L. Ed. 532, were purchased with the money of the government and were furnished to the Indians "to induce them to adopt the habits of civilized life. It was, in fact, the property of the United States, and was put into the hands of the Indians to be used in execution of the purpose of the government in reference to them." It is not pretended that the government ever consented to a disposition of the cattle by Josephine Hall, and it is plain that no declaration of hers could affect its right and duty to protect her.

It is also urged on behalf of the plaintiffs in error that the court below improperly permitted John Hall to give in evidence a conversation he had with the deputies of the defendant sheriff. Hall,