The provision is: "The allotment shall be, and the patent issued therefor, in the manner and having the same effect as provided in the general allotment act." The manner of allotment is one thing and the kind of land to be allotted is another and cannot well be confounded, and we cannot hold that Congress did not observe or intend to make the distinction.

It is contended further that the Mooers' children being, respectively, 4 and 6 years of age, were not entitled to an original allotment under the Nelson Act.

The lower courts disagreed as to this contention, the Circuit Court supporting it and the Circuit Court of Appeals deciding that it was untenable. Plaintiffs in error urge that the Circuit Court of Appeals fell into error by assuming that § 1 of the act of February 8, 1887, was part of the Nelson Act, and hence decided that the power of the President to make allotments which was given by the former was a continuing power, and could be exercised from time to time in favor of those born upon the reservation subsequent to the first order. It is, however, insisted that under the Nelson Act the power to make allotments was taken from the President and vested in commissioners, and that the provision relied on by the Circuit Court of Appeals was omitted from the act, and it is insisted further that if it be considered part of the act the whole of the provision must be considered, and that it limits an allotment to of a section to any single person then living or who should be born prior to the date of the order directing an allotment of lands. Undoubtedly, if that part of the provision had remained the law an allotment of 80 acres could not have been made, but plaintiffs in error concede that it did not remain the law. It was superseded by the act of February 28, 1891, and they admit that "the Land Department has treated the act of February 28, 1891, as amending section 1 of the act of 1887. By such amendment the classification

found in the act of February 8, 1887, is entirely omitted, and the language is: 'To each Indian located thereon oneeighth of a section of land."" The conclusion that plaintiffs in error draw from that provision is that being on the reservation at the instant of time the act was passed is a necessary condition. But such conclusion misses the meaning of the word "located." Of itself it has no reference to time. It has reference entirely to place and is used to designate upon what Indians the powers given by the act, when exercised, should operate-that is, "to each Indian located" on the reservation. The act was a part of a scheme of legislation to have existence and continuity of action until its purpose should be completely fulfilled. See Oakes v. United States, 172 Fed. Rep. 305.

This being so, the Steenerson Act is easily seen to be a part of the plan of legislation, and, contrary to the contention of plaintiffs in error, did modify and change the prior acts of Congress by superseding certain of their provisions and enlarging the quantity of land to be allotted.

It is finally contended that Secretary Garfield had no power to set aside the allotments to plaintiffs in error on an ex parte appeal. In other words they were entitled to notice and opportunity to be heard. Garfield v. Goldsby, 211 U. S. 249. The only evidence offered to sustain the contention is that of the attorney who testified that he appeared "before the department for Warren and Fairbanks in this case," and that he "did not learn until after the decision had been rendered on the rehearing or appeal" that an appeal had been taken from the letter or order of the Commissioner of Indian Affairs of July 13, 1906, in which the Commissioner directed the agent to cancel the allotments to Warren and Fairbanks and to restore the allotments to them. It may well be, as urged by the Government, that such testimony does not preclude the inference that other attorneys or Warren or the father of the Fairbanks had notice. We, however, do not conVOL. CCXXII-15

sider the inference material. It is manifest that the proceedings were single and continuous-at one time the Mooers prevailing, at others the plaintiffs in error, and finally the Mooers; and all were chargeable with notice of what was happening in regard to their rights. We have seen that an allotment to the Mooers children and that to plaintiffs in error were made without notice. The Mooers had a subsequent hearing, it is true, and the cancellation of the allotments to them ordered to be set aside. The latter order was suspended and an investigation instituted, upon which one Secretary decided in favor of plaintiffs in error and another Secretary decided in favor of the Mooers. The latter was considered as the final decision, and plaintiffs in error have sought its review in this proceeding.

It is objected by the Government that the Mooers children are necessary parties. The point was suggested by the Court of Appeals, but passed by, as the court said, because counsel had not raised it. A doubt was expressed, however, if a decree could be rendered seriously affecting the rights of the Mooers children without their being made parties. A query to the same effect was made in Oakes v. United States, supra.

The jurisdictional act has this provision as to a suit brought under it: "In said suit the parties thereto shall be the claimant, as plaintiff, and the United States as party defendant." It may well be contended, therefore, that the United States stands in judgment for all opposing claimants, not, it may be, excluding the power of the court to permit them to come in, or, in its discretion, to order them to be brought in. upon to decide the question. case made by plaintiffs we grounds for the relief they pray. The decree of the Circuit Court of Appeals is

However, we are not called Upon the suit brought and decide that they have no

Affirmed.

UNITED STATES FIDELITY AND GUARANTY COMPANY v. SANDOVAL.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA.

No. 125. Submitted December 18, 1911.-Decided February 19, 1912.

Payment by a surety company of the amount of a supersedeas bond after affirmance of the judgment by the Supreme Court of the Territory and notice by the Governor of the State of non-payment by the principals and that unless the judgment were paid forthwith, or excuse for non-payment shown, the company would forfeit its right to transact business in the Territory, is not a voluntary payment even if the Governor had no power to revoke the license, no ruling to such effect having been made prior to the payment. The fact that an appeal was subsequently taken by the judgment debtors to this court from the judgment, and that on payment thereof the surety company took security for repayment from the judgment creditor in the case of reversal, does not diminish the right of the surety company to collect from the principals the amount of the debt and all of its expenses as agreed in the application for the bond.

This court will take notice of its own decision in determining the rights of surety and principal on a supersedeas bond given to secure a judgment which was subsequently affirmed by this court. 12 Arizona, 348, reversed.

THE facts are stated in the opinion.

Mr. Eugene S. Ives for appellant.

Mr. Henry S. Van Dyke and Mr. Frank P. Flint, with whom Mr. G. Bullard was on the brief, for appellees.

MR. JUSTICE MCKENNA delivered the opinion of the court.

Action to recover the sum of $10,528.33 and certain

expenses on account of a judgment recovered against appellees and paid by appellant as surety on an appeal bond executed at the request of appellees.

The action was brought and tried in the District Court of Santa Cruz County, Second Judicial District of the Territory of Arizona, and resulted in a judgment for the sum of $14,683.25 in favor of appellant. On appeal to the Supreme Court of the Territory the judgment was reversed. Thereupon the case was brought here.

There is no dispute about the facts. One Epes Randolph recovered a judgment against the appellees for the sum of $10,528.33, from which they appealed to the Supreme Court of the Territory. They applied to appellant for a bond to be given on appeal to stay the judgment. In the application for the bond they covenanted “to reimburse said company [appellant] for any and all loss, costs, charges, suits, damages, counsel fees and expenses of whatever kind or nature, which said company shall, or may, for any cause, at any time, sustain or incur, or be put to for, or by reason or in consequence of said company having entered into, or executed said bond."

The judgment against appellees was affirmed by the Supreme Court and a judgment rendered against them, and the Guaranty Company (appellant here) for the amount recovered in the lower court, with interest and costs, on the twenty-seventh of March, 1908.

About the twenty-fourth of June, 1908, the company received notice from the Governor of the Territory to the effect that the judgment of the Supreme Court had not been paid; that more than thirty days had elapsed from its rendition, and that unless it was paid or sufficient excuse for its non-payment shown, the company would forfeit its rights to transact business as a surety company in Arizona. The company notified appellees by telegraph of this notice, but they failed to pay the judgment or to perfect an appeal from it to this court, and therefore the