U1U:I1En STATES' fl.· LOVING.
715
deed to Darrah was made,to .secure a debt cannot be hea'rd in a court of law, but the mortgagor must go into a court of chancery for relief. The court, in delivering the opil1ion, used this language: "The. offer of the 1J0nd was not accompanied by any offer to prove, eit:ler that the dt bt secured was npt due, or that the same had been paid, or that decree directed by the opinion in 90 Ill. 245 had been entered by the lower court, and performed by appellant."
The bond spoken of by the court had been offered by the defendant to prove that the deed on which plaintiff based his right to recover was not absolute, but was in effect a mortgage. The inference is very strong that, if the offer of the bond in evidence had been accompanied by an offer to prove that the debt secured had been paid, the evirlence would have been proper, and a recovery thereby defeated; and this view meets my approval. While the well-known distinction between the rules of pleading and evidence in courts of law and courts of chancery willbo recognized, the flexibility of the rules of law in adapting them to cases falling within the reason of such rules must not be lost sight of. To compel the plaintiff to resort to a court of chancery in order to establish that the defense interposed, alleged to be an outstanding title, is not a valid defensc, and is. no outstanding title, and presents no obstacle to her right of recovery, would tend to the multiplicity of suits, and would sustain a view of the question too technical and arbitrary for the prompt attainment of justice. 'rhere will be a judgment in favor of thel'laintiff for the SO-acre tract of land described in the declaration.
UNITED STATES
v.
LoVING.
(District f.!ourt, N. D;T.eif)aI. Marcll 27. 1888.) 1. INDIANS-TRESPASS ON INDIAN LANDS-GRAZING CATTLE.
2. SAME:""OBSTRUCTION OF PERMITTED TRAIL.
At Law. Action to collect penalty under Rev. St. U. S. § 2117,{oT nriving cattle on land belonging to the Indians. Thisactioll was brought against J. C. Loving to coLlect the penalty for driving cattle into the Comanche, Kiowa, and Wichita tiona. . . . ' , . . .
716
" I'EDERAL' REPORTER.
McCORMICK, J., (charging jury.) This action is prosecuted to enforce the penalty provided for in the section of the law of the United Str.t.es for the protection of the Indians: "Every person who drives or otherwise conveys any stock of horses, mules, or cattle to range and feed on any land belonging to any Indian or Indian tribe without the consent of such tribe, is liable to a penalty of one dollar for each animal of such stock." It is admitted that the defendant drove 1,200 head of cattle into the Comanche, Kiowa, and Wichita Indian reservation, and that said ellttle had been so on the lands of said Indians for at least two days and a half, subsisting by grazing at will along the route they wore traveling, or, if not at will, at least being allowed to graze for their subsistence for that time. The statute, as I construe it, is not limited to the meaning to rangeperm!Ulently or for any long period or an indefinite period of time tograze, but the offense is complete when they are so driven and pertQrange and one day. It is not disputed that there is a fixed ,trail well known to the defendant (as he testifies on the stand) through these lands of the Indians, in which persons have permission to drivecattlej but the defendant's cattle were not being driven on this trail, and it is no defense to this action that, by reason of inclosures or other obstructions, on the Texas side of Red river, the defendant could not enter the Indian lands on the permitted trail. He could not make a trail of his ownfrom some point where he chose to enter the Indian lands without permission, even to the nearest accessible point on the permitted trail, without incurring the penalty. There being no dispute about the facts of the case, you are instructed to return a verdict for the plaintiff, (the United States) for $1,200.
CoRNET.SON.
(Olrcuit Oourt, D. South (Jm'olina.
April 9, 1888.)
1; MA"TER AND SERVANT-DEFECTIVE ApPLIANCES.
Amfister is bound to provide safe machinery, and keep it in safe order; not . the best possible machinery, or in the best possible order.'
2. SAME-EMI'r.OYMENT OF ClIII,DREN. In the use of machinery, a maSter is bound to exercise ordinary care; and in the case of the employment of a child a higher degree c" care is required than 1 If tho machinery furnished bya master to his servant,is sound, well made, and kept in repair, hc will not be liable for an accident occurring to an employe when the only safer kind used for the same purpose. ground allegca ii>' that. there is a better Richards v. Rough, (MICh.) 18 N. W. Rep. 71:>5; Sweeney v. Envelope Co., (N. Y.) 5 N. E. Rep. ans; ,Pierce v. Cotton Mills, (Ga.) 4 S. E. Rep. 381; Delaware River Works v. Nuttall, (Pa.) 13 'AU, Rep. 115. A master is not bound to adopt the safest method of working. Naylol'v. Railway, (Wjs.) 11 N. W. Rep. 24; Hickey v. Taaffe, (N. Y.) 12 N. E. Rep. 286. And his liability for injuries to his servant for defective arrangements is not that' of an insurer or guarantor, The question js one of reasonable care and diligenlle. Batterllon ". Railway Co. (Mich.) 13 N. W. Rep. 508, and 18 N. W. Rep. 584; Railtomi Co; v. (Kan.)7 Pac. Rep. 204i. Co. v. Hughes, (Pa.) 13 Atl. Rep. 286; Bowen v. Railway Co., (Mo.) 8 S, W. J:l.ep. 230.