Opinion of the Court. the pulp shall circulate at the other end of the tub is a matter of small consequence so long as it shall circulate in vertical planes at the point where it comes in contact with the roll. : An additional function is claimed for the Horne device in the fact that the pulp, falling as it descends the dam from a vertical to a horizontal plane in a kind of torsional current, is more thoroughly mixed than in the Hoyt device, where the pulp continues to flow in parallel lines from the time it is delivered by the beater-roll to the, time it is received by it again. This may be true, and defendant's engine may be in this particular an improvement upon the other; but he has none the less succeeded in appropriating all that was of value in the Hoyt device, viz. the beater-roll at the end of the tub, extending across its entire width, and the circulation of the pulp in vertical planes at the only point where such circulation is of value. The substitution of a vertical for a horizontal mid-feather at the inoperative end of the tub is merely the use of an old and well known mechanical equivalent, and obviously intended to evade the wording of the claims of the Hoyt patent. Winans v. Denmead, 15 How. 330. Indeed, the ingenuity displayed in this evasion is only equalled by the ingenuity with which it is concealed in the specification of the defendant's patent, and the function of a more thorough mixture of the pulp put forward as the salient feature of the invention. The actual intent to evade is the more manifest from the fact that Horne, under a contract with the plaintiff, made seventeen machines according to the plaintiff's patent, but owing to some disagreement as to the quality of the work done by him, the contract was terminated, and Horne began the production of his own engines, and subsequently took out a patent for his invention. We are, therefore, of opinion that defendant's machine is an infringement of the first claim of the plaintiff's patent. Whether it be an infringement of the second claim admits of more doubt, since that contemplates a horizontal partition dividing the body of the vat into an upper and lower section or passage. We do not, however, find it necessary to pass upon this question. Statement of the Case. The decree of the court below is, therefore, Reversed, and the case remanded with instructions to enter a decree for the plaintiff upon the first claim, and for further proceedings in conformity with this opinion. PICKERING. LOMAX. ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS. No. 342. Argued and submitted April 27, 1892. — Decided May 16, 1892. The treaty of Prairie du Chien, 7 Stat. 320, made grants of lands to certain Indians, upon condition that they should never be leased or conveyed by the grantees or their heirs. to any persons whatever, without the permission of the President of the United States. One of those grantees conveyed his land in 1858 by a deed which had endorsed upon it the approval of the President, given in 1871. The state court of Illinois held that the Indian had no authority to convey the land without permission from the President previously obtained. Held, (1) That this ruling of the state court raised a Federal question; (2) That the permission thus given by the President to the conveyance, after its execution and delivery, was retroactive and was equivalent to permission before execution and delivery, as no third parties had acquired an interest in the lands. THE Court stated the case as follows. This was an action of ejectment brought by Pickering against John A. Lomax and William Kolze to recover two parcels of land in Cook County, Illinois, which had originally been granted by the United States to certain Indians under the treaty of Prairie du Chien of July 29, 1829. A jury was waived, the case tried by the court, and a judgment rendered in favor of the defendants. The plaintiff thereupon sued out a writ of error from the Supreme Court of Illinois, which affirmed the judgment of the lower court. Upon the trial, in order to establish his title, the plaintiff offered in evidence article 4 of the treaty of Prairie du Chien, (7 Stat. 320, 321,) which, so far as the same is material, reads as follows: Statement of the Case. "There shall be granted by the United States, to each of the following persons, (being descendants from Indians,) the following tracts of land, viz.: To Claude Laframboise, one section of land on the Rivière aux Pleins, adjoining the line of the purchase of 1816; . to Alexander Robinson, for himself and children, two sections on the Rivière aux Pleins, above and adjoining the tract herein granted to Claude Laframboise. The tracts of land herein stipulated to be granted, shall never be leased or conveyed by the grantees, or their heirs, to any persons whatever, without the permission of the President of the United States." Plaintiff then offered in evidence a copy of the patent issued December 28, 1843, signed by President Tyler under the provisions of the above treaty, granting the lands, including those in litigation, to Alexander Robinson for himself and children. The patent also contained the provision: "But never to be leased or conveyed by him, them, his or their heirs, to any person whatever, without the permission of the President of the United States." The next instrument in plaintiff's chain of title was a decree in a suit in partition instituted February 22, 1847, in the Cook County Court of Common Pleas, between Alexander Robinson and his children, and evidence to show that the lands in question were set out to Joseph Robinson, one of the children. The following deeds were then put in evidence: Deed dated August 3, 1858, from Joseph Robinson and wife to John F. Horton, which had endorsed upon it the approval of the President of the United States, which approval was dated January 21, 1871. Deed from Laon Straus, administrator, etc., of the estate of John F. Horton, deceased, to Moses W. Baer, dated October 6, 1863, and made in pursuance of an order of sale by the county court of Cook County for payment of debts. Several intermediate conveyances of the premises, down to a deed dated November 10, 1866, from Henry H. Dyer and wife to Aquila II. Pickering, the plaintiff. The defendant introduced no evidence, but at the close of the plaintiff's case moved that the plaintiff's testimony be Argument for Defendants in Error. excluded, and the case dismissed, upon the ground that the deed of August 3, 1858, from Joseph Robinson and wife to John F. Horton was made in direct violation of the terms of the patent as to obtaining the approval of the President to the conveyance. This motion was sustained, the court being of the opinion that Robinson had no authority to convey without obtaining the permission of the President beforehand; that the subsequent sanction obtained by persons claiming title under Robinson was invalid; and that even if such sanction would have the effect of giving force to the deed, yet, as the grantee ander that deed was dead, the administrator's deed would not carry any title to the purchaser from the administrator, but that, if any title accrued by reason of the sanction of the President, it would be to the heirs of Horton. Thereupon the court rendered judgment for the defendant, which was affirmed by the Supreme Court of Illinois, (120 Illinois, 293,) and the plaintiff sued out a writ of error from this court. Mr. William E. Furness (with whom was Mr. L. H. Bisbee on the brief) for plaintiff in error. Mr. Robert Hervey, for defendants in error, submitted on his brief. I. The title to the lands did not pass to the Indians by the treaty. It only contained an agreement on the part of the government to convey, which did not pass a legal title. It was at most an equitable one. The legal title remained in the United States until the issuing of the patent nearly fifteen years afterwards. And then the limitation on the power of the patentees to convey formed a most important part of it, and this limitation clearly expressed in the patent, the Supreme Court of Illinois construed in the proceeding before it. Inasmuch as the titles to, and the conveyances of real property within any of the States, are exclusively matters for state jurisdiction, and as the Supreme Court of Illinois has in con Opinion of the Court. struing the deed from Robinson (the Indian) to Horton, his grantee, decided that no title passed from Robinson to Horton for want of the permission of the President of the United States for the conveyance in apt time, my contention is that the decision of the Supreme Court of Illinois, settling as it does a question of the ownership of land within the State, and within, as I insist, the sole control of the Illinois court, is final and conclusive, and that in a case of this character, this court ought to follow and be bound by it, and that the writ of error in this cause ought to be dismissed for want of jurisdiction in this honorable court, II. The conveyance from Joseph Robinson to John F. Horton, not having been permitted by the President of the United States before or at the time of its execution, was nugatory and could not be validated by any subsequent attempted approval. Pickering v. Lomax, 120 Illinois, 289, 293, 295. If the tardy approval of the President was effective and had relation back to the time of the execution of the deed, that, under the law of Illinois, would not help the plaintiff in error, because the deed from the administrator of Horton, through which he claims, is not a deed purporting to convey the fee simple absolute. If the approval by President Grant in 1871, of a deed made by an Indian in 1858, whose power to convey was limited by the express terms of the patent, had any effect by relation, it was in favor of the heirs of John F. Horton and not of the plaintiff in error. MR. JUSTICE BROWN delivered the opinion of the court. This case turns upon the question whether the act of Congress prohibiting Indian lands from being conveyed, except by permission of the President, is satisfied by his approval endorsed upon a deed thirteen years after its execution, and after the death of the grantee and the sale of the land by his administrator. 1. A preliminary question is made by the defendant in error, as to the jurisdiction of this court. By Rev. Stat. sec. 709, our authority to review final judgments or decrees of the highest |