Substance of the declaration was that the defendants were bankers, exercising the trade and business of banking; and that the plaintiffs were their customers, and as such were in the habit of making their deposits at their bank; and that the defendants, as such bankers, were accustomed to receive as deposits gold and silver coin, and other money currency, of their customers, to be paid and returned in kind, agreeably to the custom of their bank and all other banks in the city of Washington; and that the plaintiffs, on the 28th day of February, 674*] 1864, having a balance due them at *the bank of the defendants, of $5,761, as deposits previously made there in gold and silver coin, Defendants pleaded the general issue, and that the defendants then and there refused to make such payment and return as they had promised to do.

Defendants pleaded the general issue, and that they, at a certain time prior to the suit, tendered and offered to pay to the plaintiffs the sum of money in their declaration mentioned in treasury notes, made a legal tender in payment of debts, and that from that time they have been and still are ready to pay the same, and now bring the same into court.

1. Parties went to trial at a special term of the court, and the verdict and judgment were for the defendants. Objection was duly taken by the plaintiffs to one of the rulings of the court in excluding certain testimony offered by them to show the usage and mode of dealing of other banks, and the bill of exceptions to the ruling was regularly drawn out and duly signed and sealed.

Prayers for instructions to the jury were duly presented by the plaintiffs, and they were refused by the court, and other and different instructions were given in their place, but no bill of exceptions in that behalf was tendered by the plaintiffs, or signed or sealed by the court. Statement in the minutes is that the plaintiffs excepted in law as well to the refusal of the court to instruct the jury as requested, as to the instructions given; and that the exceptions and the evidence are hereby made record. Plaintiffs also made a motion for new trial, assigning two causes: (1) Because the court refused to instruct the jury as prayed by the plaintiffs; (2) because the court instructed the jury as prayed by the defendants.

Order of the court was that the motion should be heard before the court at general term. Both parties were heard before the full bench, and the court affirmed the judgment as rendered at the special term. Writ of error to this court was sued out by the plaintiffs.

2. Principal questions discussed at the bar are presented, if at all, in the prayers for in675*] structions which were refused, *and in the instructions which were given to the jury. Defendants contend that neither the prayers for instructions nor the instructions given are before the court, as they are not exhibited in any bill of exceptions signed and sealed by the justice who presided at the trial.

Settled practice in this court is that neither the rulings of the court in admitting or rejecting evidence, or in giving or refusing instructions can be brought here for revision in any

Final judgments in a circuit court may be reexamined in this court and reversed or affirmed upon a writ of error, founded upon an agreed statement of facts, a special verdict, a demurrer to a material pleading, or a demurrer to evidence, as well as by a bill of exceptions; but none of the other modes will enable the appellate court to revise the rulings of the court in refusing to instruct the jury as requested, or the instructions as given, or the rulings of the court in admitting or rejecting evidence. Such rulings rest in parol, and can only be incorporated into the record by a bill of exceptions, and of course cannot be re-examined in any other way. Suydam v. Williamson, 20 How. 432, 15 L. ed. 979.

None of the other modes suggested, says the court, in the case of Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 602, 17 L. ed. 642, enable the complaining party to review or re-examine the rulings of the court, except that of the bill of exceptions, and we reaffirm that rule. Bulkeley v. Butler, 2 Barn. & Cress. 434; Seward v. Jackson, 8 Cow. 406; 2 Tidd. Pr. 896; 4 Chit. Gen. Pr. 7; 2 Inst. 427; Dougherty v. Campbell, 1 Blackf. 39; Cole v. Driskell, 1 Blackf. 16; Strother v. Hutchinson, 4 Bing. (N. C.), 89.

Instructions requested or given rest in parol, and do not, in the practice of this court, or in any other court where the common law prevails, become a part of the record, unless made so by a regular bill of exceptions, sealed by the judge who presided at the trial; and it is the well settled practice in this court that an entry of the ruling in the minutes cannot be of any benefit to the party unless he seasonably reduces the same to form and causes it [*676 to be sealed by the judge. Pomeroy's Lessee v. Bank, supra.

Views of the plaintiffs are that the bill of exceptions is not necessary in cases removed here from the supreme court of this district. Reference is made to the 8th section of the act to organize the courts in this District, as furnishing support to the proposition, but it is quite evident that the section referred to relates exclusively to the practice in the subordinate court, and not to the proceedings for the removal of the cause into this court for examination and revision.

Exceptions taken in the trial at the special term, before a single justice, as there provided, may be reduced to writing at the time, or may be entered in the minutes of the justice and settled afterwards in such manner as the rules of the court provide. Such exceptions must be "stated in writing in a case or bill of exceptions, with so much of the evidence as may be material to the questions to be raised; but the case or bill of exceptions need not be signed or sealed." 12 Stat. at L. 764.

Motion for new trial may also be entertained by the justice who tries the cause, at the same term, in the manner therein described. When such motion, however, is made upon the minutes, an appeal to the general term may be taken from the decision, in which case a bill of exceptions or case shall be settled in the usual manner. Our only purpose in referring to that section is to show that no part of it has anything to do with the question before the court.

No one of the clauses mentioned make any

provision whatever for a writ of error or appeal to this court. Regulations upon that subject are made by the 11th section of the same act, which provides that any final judgment,, order or decree of the court may be re-examined, and reversed or affirmed, in the Supreme Court of the United States upon writ of error or appeal in the same cases and in like manner as is now provided by law in reference to the final judgments, orders or decrees of the circuit 677*] court of the United States for this district. Writs of error and appeals were required to be prosecuted under that law, in the same manner and under the same regulations as in the case of writs of error or appeals from judgments and decrees rendered in the circuit court of the United States. 2 Stat. at L. 106; U. S. v. Hooe, 1 Cranch, 318.

Conclusion is that the regulation, respecting the removal of cases from the supreme court of this district, on writs of error or appeal, are the same as from the circuit courts of the United States, and, of course, the questions presented in the prayers for instruction, and in the instructions given to the jury in this case, are not before the court, as neither the prayers for instruction, nor the instructions given, are any part of the record.

3. Remaining question arises under the exception to the ruling of the court in excluding the testimony offered by the plaintiffs to show the usage and mode of dealing of other bankers in this city. The teller of the defendants, called by the plaintiffs, testified that the defendants, prior to the suspension of specie payments in April, 1861, paid all checks drawn upon the bank by their customers in gold, or its equivalent, except when the deposit had been made in depreciated paper; that after that time they uniformly made a difference with their customers in receiving and paying their deposits, between coin, or specie, and paper money, and that in all cases where the deposit had been made in coin, if requested, they paid the checks in coin; that after the suspension of the banks the defendants refused to receive currency as the equivalent of specie; that currency continued to be received and credited to customers as before, but went into the general funds of the bank, and the same money was never returned to the customer, and it was not received on special deposit; that the plaintiffs had never made any special deposits with the defendants; that the books of the bank and the pass-books were kept as before the suspension, except that the different deposits were designated as coin, cash, checks or treasury notes.

4. Testimony of the teller of the bank is ex678*] press to the *point that the plaintiffs never made any special deposit with the defendants, and there is no testimony in the case to support any such theory. On the contrary, it is clear that they made their deposits for their own convenience, and were credited for the amount in the usual way on the books of the bank.

Clear inference from the whole testimony is that the deposits of the defendants were made without condition or special agreement of any kind, and in such cases the law is well settled that the depositor parts with title to his money and loans it to the bank.

Mar. Bank v. Fulton Bank, 2 Wall. 256, 17 L. ed. 787.

Deposits may be made under circumstances where the legal conclusion would be that the title to the thing deposited remained with the depositor; and in that case the bank would become the bailee of the depositor, and the latter might rightfully demand the identical money deposited as his property.

cus

Contracts between a banker and his tomers are doubtless required to be performed, and must be construed in the same way as contracts between other parties. When the banker specially agrees to pay in bullion or in coin he must do so or answer in damages for its value; and so if one agrees to pay in depreciated paper the tender of that paper is a good tender, and in default of payment the promisee can recover only its market and not its nominal value. Robinson v. Noble, 8 Pet. 198; McCormick v. Trotter, 10 Serg. & R. 96.

But where the deposit is general, and there is no special agreement proved, the title of the money deposited, whatever it may be, passes to the bank, and the transaction is unaffected by the character of the money in which the deposit was made, and the bank becomes liable for the amount as a debt, which can only be discharged by such money as is by law a legal tender. B'k of Ky. v. Wistar, 2 Pet. 325.

Moneys deposited with the bank in this case were entered in a pass-book in figures, expressing the amount in dollars *and cents, [*679 and it appears that the character of the money deposited is marked against each sum as coin, cash, check, or treasury notes, as the fact was in each particular instance. Such marks, however, are wholly insufficient to overcome the testimony of the teller, who was introduced by the plaintiffs, and who was the only witness examined upon the subject. Proof that those words were written against the several deposits for any such purpose as is supposed by the plaintiffs is entirely wanting; and in the absence of such proof it is much more reasonable to infer that they were put there as matter of convenience to the depositor, or to assist the memory as to the amount of the respective credits, in case of misrecollection or dispute.

No evidence of general usage or custom, in the ordinary sense of those terms, was offered by the plaintiffs or appears in the record. Customary rights and incidents universally attaching to the subject-matter of the contract in the place where it was made, are impliedly annexed to the language and terms of the contract, unless the custom is particularly and expressly excluded. But evidence of usage is not admitted to contradict or vary express stipulations restricting or enlarging the exercise and enjoyment of the customary right. Omissions may be supplied, in some cases, by the introduction of such proof, but it cannot prevail over or nullify the express provisions and stipulations of the contract. So, where there is no contract, usage will not make one, as it can only be admitted either to interpret the meaning or the language employed by the parties in the absence of express stipulations, or where the meaning is equivocal or obscure.

Bliven v. N. E. Screw Co. 23 How. 431, 16 L. ed. 513; Add. Con. 853; Greenl. Ev. § 292.

State of New York.

This action was commenced in the supreme court of New York, pursuant to § 372 of the Code of that state, the parties filing an agreed statement of facts.

The Reeside, 2 Sumn. 569.

Usage contrary to law, or inconsistent with the contract, is never admitted to control the general rules of law or the real intent and meaning of the parties.

Dykers v. Allen, 7 Hill, 499; Woodruff v. Merch. Bank, 25 Wend. 674.

Evidence of local usage to sell commercial paper, pledged as a security for a loan, at private sale after demand of payment, and notice that such sale would be made in case of default, was held to be inadmissible in the court of appeals in the state of New York, all the judges concurring.

Wheeler v. Newbould, 16 N. Y. 395. Evidence of the usage of banks to regard drafts drawn upon them, payable at a day certain, as checks, and not entitled to days of grace, is inadmissible as evidence to control the rules of law in relation to such paper.

Bowen v. Newell, 8 N. Y. 194.

General rule of law is that, if a merchant deposits money with a bank, the title to the money passes to the bank, and the latter becomes the debtor of the merchant to that amount; and it is not perceived that the evidence offered, if it had been admitted, could have had any other effect than to control that general rule of law, as it is not pretended that the evidence showed a special deposit or any special contract. Viewed in any light consistent with the other evidence in the record, the testimony was either entirely immaterial or inadmissible, as tending to control the well settled rules of law.

Judgment affirmed with costs.

ROBERT DENNISTON, Comptroller of the State of New York, and Thomas W. Olcott.

(See S. C. "N. Y. Indians," 5 Wall. 761-772.) Indian lands, not taxable.

Taxes assessed by the laws of the state of N. Y.

upon the three Indian reservations (Buffalo Creek, Allegany, and Cattaraugus), are illegal and void, as in conflict with the tribal rights of the Seneca Nation as guaranteed to it be treaties with the United States.

The plaintiffs, Charlotte Brinckerhoff and Louisa Troup, are joint owners of a large number of separate lots upon the Buffalo Creek reservation, which have been assessed and sold for the various taxes of the years 1840 to 1844, for the rejected taxes of 1843, and some of which have also been sold for taxes regularly charged for years subsequent to 1844, and the defendant, Olcott, is the owner of the certificates of such sale.

The people of the state of New York, represented on this record by the comptroller of the state, are the owners and the holders of the bids and certificates of sale of the Allegany reservation, containing thirty thousand acres, and of that portion of the Cattaraugus reservation lying in the county of Cattaraugus, containing 3,814 acres.

The plaintiff, George R. Babcock, claimed to be the owner of a lot in the Buffalo Creek reservation, which had been assessed in the years 1840-1844, and had been sold in 1859 to the state. The bid and certificate of sale were assigned to Thomas W. Olcott; and Babcock had, since the sale, made a tender for the amount of taxes assessed on the lot in the year 1845, and for the rejected county tax of 1843, and offered to redeem the same, which offer was refused by the comptroller.

The New York supreme court refused the relief demanded by the plaintiffs, holding that the acts of 1840 and 1841 were valid. The court of appeals, on appeal, set aside the judg ment of the supreme court, but adjudged the act of 1841 to be valid, although the act of 1840 was void. The present writ of error brings in review this latter judgment.

The question in dispute is the validity of certain taxes on lands embraced within the Indian reservation in the state of New York, known as the Buffalo Creek, Cattaraugus, and the Allegany reservations, imposed by the Revised Statutes and General Laws of the state of New York; and also certain special highway taxes imposed on said lands for the years 1840 to 1844, inclusive, by virtue of acts of the legislature of New York, passed May 9, 1840, and May 4, 1841, which acts, and the taxes assessed thereunder, as well as the taxes assessed under the general laws of the state, it is claimed by the plaintiffs in error are void

as in contravention of the laws of the United States and various treaties between the government of the United States and sundry nations of Indians.

[No. 175.]

property in said Indian reservation except that of sovereignty and jurisdiction.

New York also agreed that said reservations, so long as they should remain the property of Massachusetts, should be free and exempt from all taxes whatever, and that no general or state tax should be charged on the lands within said reservations, thereafter to be granted by Massachusetts, or upon the occupants or proprie tors of said lands, until fifteen years after the confirmation of such grants in the manner mentioned in the compact; but that said lands and the occupants thereof, during said period, shall be subject to town and county charges and taxes only.

May 11, 1791, Massachusetts conveyed to Robert Morris, the pre-emption rights, and all the right, title, and interest which the state

had to said reservations.

Sept. 15, 1797, the Seneca nation of Indians released to Robert Morris the greatest portion of the Cattaraugus reservation, and prior to June 30, 1802, Wilhelm Willink and others. commonly known as the Holland Land Company, became seised of all the right and title of said Morris to said reservations.

June 30, 1802, the Seneca nation made an exchange with Willink and his associates, of certain lands which they had retained in the cession to Morris, in 1797, for that portion of the Cattaraugus reservation which had been ceded by the nation to Morris, Sept. 15, 1797. By various conveyances prior to Jan. 15. 1838, one Thomas L. Ogden and the plaintiff, Joseph Fellows, acquired the title of Willink and his associates in the said reservation, and held the same as joint tenants and as trustees. January 15, 1838, a treaty was made between the United States and the six nations of Indians, providing for the removal of the latter to the west of the Mississippi river; and at the same treaty a deed of conveyance was executed between the Seneca nation and said Ogden and Fellows, in fee as joint tenants of the reservation. This treaty provided for the removal of the Indians within five years, and neither it nor the conveyance became binding upon the parties until April 4, 1840, when the treaty was proclaimed by the President of the United States. Before the expiration of said five years, differences arose between the Seneca nation and Ogden and Fellows, and to settle the same a new treaty was made May 20, 1842, between the United States and the Seneca nation, and a deed was executed between the Seneca nation and Ogden and Fellows, by which Ogden and Fellows agreed that the Seneca nation should remain in possession of the Allegany and Cattaraugus reservations, notwithstanding the deed of January, 1838, saving to Ogden and Fellows the right of pre-emption and all rights held by them previous to that deed; and the Seneca nation confirmed to Ogden and Fellows the Buffalo Creek and the Tonawanda reservations, for which Ogden and Fellows were to pay certain money, to be ascertained and reported by the arbitrators, as provided in the deed.

Ogden and Fellows have never been in possession of any part of the Cattaraugus and Allegany reservations, but the same are in the possession of the Seneca Indians.

May 9, 1840, the legislature of New York, by special statute, authorized a highway tax to be assessed upon the Allegany and Cattaraugus reservations, and a tax under this statute was assessed by the supervisors of the county of Cattaraugus.

May 4, 1841, the legislature passed an act authorizing the supervisors of Erie and Cattaraugus counties to levy and assess certain other taxes for laying out and constructing roads upon the Buffalo Creek, Cattaraugus, and Alleghany reservations lying within said counties.

Under the act of 1841, the supervisors of the county of Erie, in each of the years 1841, 1842 and 1843, assessed upon the Buffalo Creek reservation the sum of $5,000; and also in each of said years, assessed upon that part of the Cattauragus reservation lying within the county of Erie the sum of $4,000; and the supervisors of the county of Cattaraugus, under the same act, in each of said years, assessed a tax upon the Allegany reservation of $4,000; and in that portion of the Cattaraugus reservation lying in that county, a tax of $1,000.

The Buffalo Creek and Cattaraugus reservations have also been assessed in whole or in part, for ordinary town and county charges in the years 1840-1843.

All these taxes being unpaid, were returned to the comptroller of the state of New York. The then comptroller of the state of New York, in November, 1848, advertised the lands for sale.

The lands were sold by the comptroller in November, 1859, as well for the taxes before referred to as for taxes upon many of the Buffalo Creek reservation lots, levied according to law in the year 1844, and subsequently, and each separate lot of the Buffalo Creek reservation was sold for the gross amount of taxes apportioned to it for 1840-1843, and the amounts of any unpaid taxes upon the particular lots levied subsequently to 1843. The whole of the Allegany and Cattaraugus reservations were sold in quantities as returned, and such reservations and the greater part of the lots in the Buffalo Creek reservation were, in default of bidders, struck off on the sale to the state of New York, and such bids, except in a few cases, have been according to law assigned to the defendant Olcott, who is now the owner of the same.

The court of appeals decided that the act of 1841 was valid, and not in conflict with any of the treaties or laws of the United States, upon the ground that the act provided against any interference with the Indian occupancy.

It was also adjudged that the taxes assessed upon the Allegany and Cattaraugus reservations under the act of 1841, were valid charges against the interest of the grantees of the state of Massachusetts in said reservation.

It is further adjudged that the taxes imposed upon the several parcels of land within the Buffalo Creek reservation, under the act of 1841 and the sale thereof, were valid, for the reason that at the time of the sale the Indian occupancy had, in fact, ceased.

Mr. John H. Reynolds, for plaintiffs in error:

The several assessments and taxation on the Indian reservations for town and county

The lands at the time of the assessment were in the actual and exclusive occupancy of the Seneca nation of native Indians, which exclusive possession and occupancy was secured to them by the government of the United States, and by the state of New York as one of said states.

Treaty of Fort Stanwix, Oct. 22, 1784; 7 U. S. Stat. at L. 315; Treaty of Fort Harmar, Jan. 9, 1788; 7 U. S. Stat. at L. 33; Treaty of Canandaigua, Nov. 11, 1794; 7 U. S. Stat. at L. 41.

The right of the Senecas to the lands included in the reservations in question, is also acknowledged, and the United States engages to protect them by the following treaties:

Treaty of Genesee, Sep. 15, 1797, 7 U. S. Stat. 601; Treaty of Buffalo Creek, June 30, 1802, Ibid. 70; Treaty of Jan. 15, 1848, Ibid. 530; Treaty of May 20, 1842, Ibid. 586.

The guarantees by the United States, by its treaties, were made in consideration of important cessions made by them to the United States, and were founded upon the original title of the Indians to the soil and the right to occupy it. Their title is fully acknowledged, and must continue until voluntarily surrendered by the nation, with the consent of the United States to those entitled to extinguish the same. Johnson v. McIntosh, 8 Wheat. 543; Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; U. S. v. Clarke, 9 Pet. 168; Mitchell v. U. S. 9 Pet. 740; Ogden v. Lee, 6 Hill, 546; 5 Den. 628.

There was nothing in the deed to Ogden and Fellows of Jan. 15, 1838, to impair at any time prior to May 4, 1845, the rights of the Seneca nation to occupy and enjoy the reservations in question.

Fellows v. Blacksmith, 19 How. 366, 15 L. ed. 684.

The expediency of the modification of the treaty of 1838, and substituting a new arrangement in place of it, was a political question, to be exclusively determined by the government of the United States and the Seneca nation of Indians.

Foster v. Neilson, 2 Pet. 253; U. S. v. Arredondo, 6 Pet. 735; U. S. v. Percheman, 7 Pet. 51.

These treaties with the Senecas, and the acts of Congress made for their protection, are the supreme law of the land. I Const. U. S. art. VI. § 2.

The taxation of the lands of the Senecas, while in the occupation of the tribe as a nation, and more especially the sale of such lands under a state tax law would, necessarily, disturb the Indians in their possession and enjoyment of said lands, and so far as such acts are authorized by a state law, the same are in conflict with the act of Congress and void.

Gibbons v. Ogden, 9 Wheat. 1; Brown v. Md. 12 Wheat. 419; McCulloch v. Md. 4 Wheat. 352; Osborn v. Bank of U. S. 9 Wheat. 738: Weston v. Charleston, 2 Pet. 465; Smith v. Turner, 7 How. 283.

And if, by any statute of New York, taxation of such lands is allowed, it is void as being repugnant to the treaties with the Senecas. Ware v. Hylton, 3 Dall. 199; Martin v. Hun

The Allegany and Cattaraugus reservations were, at the time of the assessments, are now and, it may be assumed, for a long time to come will be, in possession of the Indians as an independent nation, and the state of New York had no right to assume any jurisdiction or sovereignty over them, for the purpose of taxing the lands or any interest in them. The attempt to interfere with them in any way was an offense against the dignity of the govern ment of the United States, and wholly without warrant or authority, and the extent of the interference is of no consequence.

McCulloch v. Maryland, 4 Wheat. 430. Messrs. J. H. Martindale and J. K. Porter, for respondents:

Under the 25th section of the judiciary act, only two main questions can be presented in this case for the consideration of this court:

Does chapter 166 of the Laws of New York, passed in 1841, contravene the treaties made between the United States and the Seneca nation of Indians? This law provides that certain taxes for certain local objects may be imposed on the Cattaraugus and Allegany Indian reservations in that state.

But it is provided "that no sale for the purpose of collecting said taxes shall in any manner affect the right of the Indians to occupy said lands."

Sec. 5 of the act above cited.

Does chapter 254 of the Laws of New York, passed in 1840, so far as that law applies to the Buffalo Creek reservation in the county of Erie, contravene the treaty above cited?

This act provides for the assessment of taxes on that reservation; among others, to repair bridges and highways, without any exception or condition, to secure the Indians against disturbance.

Does the New York law of 1841 affect, in any degree, the Indians' title to, or the free use and enjoyment by them of, these reservations?

The Indians' title is a right of occupancy, use and enjoyment, and not of alienation.

Cherokee Nation v. Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; Mitchell v. U. S. 9 Pet. 711.

The assessment of taxes authorized by the New York law of 1841 does not relate to nor affect the Indians' title. On the contrary, the Indians' right to occupancy, which is all the right they possess, is expressly excepted from the operations of the law.

It follows that the assessments complained of are made against the right and property of the appellant, Fellows, in the reservations.

Clearly the treaty of 1794 has no relation to that right, and on well-recognized principles it is liable to taxation by state authority.

McCulloch v. Maryland, 4 Wheat. 428; People v. Mayor, etc., of Brooklyn, 4 N. Y. 426.

By the 20th section of subdivision in the statement of facts in this case, it appears that the taxes assessed against the Buffalo Creek reservation under the Laws of 1840 and 1841, were not paid; that they were returned to the state comptroller in 1848, and the lands were finally sold in 1859. That was a valid sale. Fellows v. Denniston, 23 N. Y. 430. The cases of Fellows v. Blacksmith, 19 How.