leaving McKee to carry out the contract alone. 8. In 1881, an act was passed by Congress (21 Stat. at L. 504) referring the question of the liability of the United States in respect to the Choctaw claims to the Court of Claims, and in March, 1886, a judgment was rendered in the Court of Claims in favor of the Choctaw Nation. 21 Ct. Cl. 59. From the judgment so rendered both parties appealed to this court, which also decided in favor of the Choctaws, and beld that the award made by the Senate in 1859 determined the amount due in respect of the claim (119 U. S. 1 [30: 306]), and on June 29, 1888, an appropriation was made for the payment of the judgment of $2,858,798.62. 25 Stat. at L. 217, 239. Messrs. Geo. F. Appleby and Calderon Carlisle for McPherson, Executor. Mr. S. S. Henkle for Ellen Cochrane. Messrs. Enoch Totten and Reginald Fendall for Latrobe, Executrix. Mr. A. B. Duvall for Gilfillan et al. Mr. Willis B. Smith, for Marbury, Administrator. Messrs. John J. Weed and Jefferson Chandler for McKee. Messrs. James Coleman and Nathaniel Wilson for Lamon and Black, on motion to dismiss. Mr. Justice Brown delivered the opin-[311 ion of the court: A motion to dismiss the appeal of McPherson, made by the appellees, demands a preliminary consideration. This motion is made upon the grounds, first, that the appellant is precluded from questioning the validity of the decree because, having been awarded a large sum of money out of the fund for distribution, he applied for and received the same, as did all the other beneficiaries to whom awards were made; and that the decree disposed of the entire fund and has been fully executed; second, that the decree was joint against the ap pellants and also against the other codefend and alone, their codefendants not joining, and without any proceeding in the nature of a summons and severance. 9. On February 25, 1888, an act of the legislative council of the Choctaw Nation, after reciting the recovery of the judgment, and that McKee and his associates were making proper efforts to secure from Congress an ap propriation for the payment, enacted that the cont with McKee and another with one Luce sncald be recognized as valid, that the services required had been fully performed, and that to satisfy the obligations of the Choc taw Nation to McKee and Luce, who was jointly interested with him, there should be appropriated thirty per cent of the amount ap-ants, whereas the appellants appeal separately priated by Congress for the payment of the judgment, twenty-five per cent of which should be paid to McKee, and it was made the duty of the treasurer of the nation to make such payment. The fourth section enacted that "the sum of $14,140 shown to be due to the late John T. Cochrane, deceased, by an act of 310]the *general council of November 1, 1861, is hereby appropriated out of any money received from the United States in payment of said judgment, and the payment of said amount shall be made to said Henry E. McKee," etc. The fifth section enacted "that the payments herein directed to be made shall, when made, either under this Act, or said other two acts herein before referred to, be taken and accepted as full and complete pay ment and final discharge and satisfaction of all the contracts and obligations of the Choctaw Nation to any and all attorneys for services rendered to the nation in the prosecution of said claim against the United States." 10. On the filing of the bill of complaint July 7, 1888, by the surviving partners of Black, Lamon & Co., in the fo lowing case, a preliminary restraining order was issued en joining the defendant McKee from demanding or receiving said money from the Treasury. But, in violation of this order, McKee, on July 9, collected and received from the Treasury the sum of $783,768.82, being the thirty per cent fund mentioned in the Cochrane and McKee contract as set aside for the compensation for services rendered in the prosecution of said claim. McKee, being subsequently ordered to pay into the registry of the court the sum of $136,500 in the same case, in addition to the sum of $161,197.63 paid into court in this case, refused to obey the order, and to avoid doing so absconded from the jurisdiction of the court, and has ever since kept himself concealed, to avoid process. 1. It did undoubtedly appear from the certificate of the clerk above mentioned that McPherson was paid $7,070 of the amount decreed to him out of the special fund. But it further appeared that he claimed to be paid from the general fund of $147,057.63, and that his claim in that particular was denied. While the acceptance of the whole or a part of a particular amount awarded to a defendant might perhaps operate to estop him from insisting upon an appeal, there were practically two decrees in this case, one applicable to the special fund, which, in the bill, the subsequent pleadings, and in the decree, had been kept as a distinct and separate maiter, a portion of which fund was awarded to McPherson; and the other applicable to the general fund in which McPherson had been denied any participation whatever. Clearly his acceptance of a share in the special fund did not operate as a waiver of his appeal from the other part of the decree disposing of the general fund. There is nothing inconsistent in his action *in accepting [312 the amount awarded to him from the special fund, and appealing from the refusal of the court to award him the general fund. As was said by this court in Embry v. Palmer, 107 U. S. 3, 8 [27: 346, 348]: "No waiver or release of errors, operating as a bar to the further prosecution of an appeal or writ of error, can be implied except from conduct which is inconsist ent with the claim of a right to reverse the judg ment or decree which it is sought to bring into review. If the release is not expressed, it can arise only upon the principle of an estoppel. The present is not such a case. The amount awarded, paid, and accepted constitutes no part of what is in controversy. Its acceptance by the plaintiff in error cannot be con strued into an admission that the decree he seeks to reverse is not erroneous." 2. The objection that an appeal was not taken by the other defendants; that they did not join in the appeal, and that there was nothing in the nature of a summons and severance,-is equally untenable. The decree was several. both in form and substance, and the interest represented by each defendant was separate and distinct from that of the other. In such cases any party may appeal separately to protect his own interest. Cox v. United States, 31 U. S. 6 Pet. 172 [8:359]; Todd v. Daniel, 41 U. S. 16 Pet. 521 [10:1054]: Hanrick v. Patrick, 119 U. S. 156 [30: 396]; City Nat. Bank of Fort Worth v. Hunter, 129 U. S. 557, 578 [32:752, 759]. 3. As to the merits, we are only concerned in this case with the general fund of $147,057.63, which is five per cent upon the thirty per cent which the Choctaws agreed to pay to McKee for his services. This fund was awarded by the final decree to Ellen Cochrane, individually, and to Latrobe and Lamon, the fund being divided into 257,5% parts, of which Latrobe took 75, Lamon 35, and Ellen Cochrane the residue. The parts assigned to Latrobe and Lamon represent the decree obtained by them upon their separate bills against McKee in the two following cases. Both McPherson as executor of Cochrane, and Rollings and Gilfillan, assignees of Lea, appealed from the decree in the present case. The interests of these appellants are, in reality, identical. Cochrane, in his will, made in 1866, acknowledged an equal interest in the Choctaw contract 313]*to belong to Colonel Luke Lea, and on September 24, 1869, Lee assigned all his interest to Rollins and Gilfillan. No controversy exists between these parties; but if McPherson be awarded the fund, both are interested to defeat the claims of Latrobe and Lamon, which diminish by the amount of their decrees the sums which would otherwise go to the Cochrane estate. Both are also interested adversely to Ellen Cochrane, who claims the entire fund individually, while the appellants claim it as assets of Cochrane's estate to pass under his will, one half to Rollings and Gilfillan, as siguees, and the other half to be divided equally between Ellen Cochrane, his wife, and Mary Magruder, his sister. The controversy between them turns upon the construction of the contract of July 16, 1870, between McKee and the Choctaws, in which Blunt and McKee agreed "to pay to Mrs. John T. Cochrane of Washington city, D. C., five per centum from the thirty per centum before referred to whenever they shall receive the same." The view of the court below was that, if there were a trust in favor of parties who had rer.dered valuable services be fore the execution of the McKee contract of July 16, 1870, that trust attached to every dollar received by McKee, and that it was not in his power to disengage any particular dollar or any particular sum of money from the charge, and hence that the amount paid into court by McKee in this case was subject to the trust found by the court to exist in the other cases in favor of Latrobe and Lamon. As the court also awarded the residue to Ellen Cochrane, it follows that it must have treated this as a donation to Mrs. Cochrane, and not as a payment for services rendered by Cochrane, as, under the latter theory, it would have been ordered paid to McPherson, as executor, to become a part of the assets of his estate. Two questions then arise upon this appeal: First, Was the payment in the McKee contract to be made to Mrs. Cochrane intended as a personal gift to her, or as a payment for Cochrane's services? Second, was such sum subject to a trust in favor of Latrobe and Lamon? In disposing of the first question it is only necessary to consider the contract be- (314 tween the Choctaws and McKee, in which the former agreed that for services rendered and money expended and to be expended in the prosecution of the claim, Blunt and McKee should receive thirty per cent of the amount awarded, or of any sum that may be paid by the United States; Blunt and McKee, on their part, agreeing to pay five per cent of this thirty per cent to Mrs. Cochrane, and also to adjust the claims of all parties who have rendered services hereto fore in the prosecution of said claim, upon the principle of equity and justice, according to the value of the services so rendered. By section 4 of the act of the Choctaw council of February 25, 1888, the sum of $14,140 was the amount fixed as due the late John T. Cochrane, deceased, by an act of the general council of November 1, 1861, and that sum was appropriated out of any money to be received from the United States in payment of said judgment. Exactly for what this was intended as a payment does not clearly appear, but the fact that it was found to be due by an act passed in 1861 indicates very clearly that it could not have been for services subsequently rendered, although section 5 provides that the payments therein directed to be made should be accepted as full discharge and satisfaction of all the contracts and obligations of the Choctaw Nation to any and all attorneys for services rendered to the nation in the prosecution of said claim. This appropriation was evidently intended to discharge that obligation to him personally. The argument for Mrs. Cochrane is based upcn this plain agreement on McKee's part to pay her the five per cent, although, as no consideration moved from her either to McKee or to the Choctaws, it is, in reality, a donation. Upon the contrary, the appellants insist that the payment was intended as compensation for the services of Cochrane, which had been undoubtedly of great value to the Choctaws, and that the nation had no right to divert what must naturally have been intended as a payment for those services away from his estate, to which it properly belonged, and turn it into a donation to his widow. The oral testimony as to the intention of the parties, if competent at all, is conflicting and wholly unsatisfactory. *As already observed, the Cochrane con-[315 tract provided for payment to him of thirty per cent of the amount collected, but it was a contract wholly contingent upon his success, and was never performed either by Cochrane personally, or by Black and Lamon, his assignees. Nothing was ever earned by them under this contract, and neither Cochrane's executor nor his assignee ever stood in position to sue upon It, or to claim anything by virtue of it. At of the following case, and for further proceed. the same time, both the Choctaws and McKee ings in conformity with this opinion. HENRY E. McKEE, Appt., V. [317 ROBERT LAMON, Admr., etc., ET AL. LAMON, Admr., etc., ET AL., v. HENRY E. McKEE. (See S. C. Reporter's ed. 317-327.) Necessary party—when trustee may be compelled to account-when trust arises-suit in equity against trustee. 1. 2. In a suit against one to enforce a trust in moneys received by him for his services in collecting a claim for an Indian nation, that nation is not a necessary party. were ready to concede that Cochrane had reu As Mrs. Cochrane did not appeal from that part of the decree admitting Latrobe and La mon to share with her, and as the appeal of the other parties turns primarily upon the va lidity of the allowance to Mrs. Cochrane, and not upon the fact that Lamon and Latrobe were admitted to share in such allowance, it is unnecessary to consider the second question. If the amount decreed to them were reduced, such reduction would redound to Mrs. Cochrane's benefit and not to the appellants. While, as before observed, we think the court made a correct disposition of the case so far as this appeal is concerned, the reversal of the following case may make it necessary to readjust the amount due to Lamon and Black, and consequently our decree in this case must be for a reversal to await the disposition 159 U. S. U. S., Book 40. 11 Where a person collects a claim for a percentage of it under an agreement to pay others for their services rendered and moneys expended in the prosecution of the claim, he may be compelled to account to them, in a suit in equity for its prop er distribution, although their names are not given in the agreement, but they are therein mentioned as a class. 3. Where money is placed in the hands of one per. son to be delivered to another, a trust arises in favor of the latter, which he may enforce by bill in equity, if not by action at law. The receipt of the money is sufficient consideration for a promise for its final disposition. 4. Where one is employed by an Indian nation to collect a claim against the government under a contract for compensation for collection to be paid out of the moneys collected,and renders services towards its collection, but the contract is canceled before the collection is made, and another is employed to collect the same claim, and the latter agrees with the nation to pay to the former such sum as he is justly entitled to receive for such services out of the percentage the latter is to receive for such collection, the former can recover in equity for such services, from the lat ter, out of his percentage when received by him, although the former has no right of action against the nation for his compensation. [Nos. 33, 34.] Argued and Submitted March 13, 14, 1895. APPEAL from a decree of the Supreme Court of the District of Columbia in favor of Ward H. Lamon against Henry E. McKee for $35,000 as compensation for his services and for his disbursements and expenditures with interest thereon, to be paid out of a percentage received for the collection of a claim of the Choctaw Nation against the United States, and dismissing so much of the suit as related to the claim of Lamon and Black, or NOTE. As to parties in error, who necessary, sce note to Owings v. Kincannon, 8: 727. a defense; when objection to be made, see notes to As to parties necessary in equity, want of; when Morgan v. Morgan, 4: 242, and Marshall v. Beverley. 5: 97. 165 either of them, as assignees of a certain contract, etc. Reversed and case remanded for further proceedings. Statement by Mr. Justice Brown: This was the original bill filed against Mc Kee by Lamon and Black, surviving partners, and was based upon the assignment of the original Cochrane contract for a compensation of thirty per cent to Jeremiah S. Black, and the substitution of Black in the place of Cochrane, as the attorney, counsel, and agent of the Choctaw Nation for the prosecution of their claim. This contract was entered into between McPherson, as the executor of Cochrane, and Jeremiah S. Black, on the 8th of November, 1866, and was assented to by the delegates of the Choctaw Nation, whereby the right of Cochrane to receive the thirty per cent became vested in Black. This assignment seems really to have been made for the benefit of Lamon, who raised and paid $25,000 of the $75,000, 318] which it was contemplated should be paid to Cochrane in the verbal arrangements carried on between Lamon and Cochrane before his death. The bill, after setting forth the facts stated in the interpleader case, averred that, on the dissolution of the firm of Black, Lamon & Co. in 1872, Lamon succeeded to the interest of Black in the remainder of the thirty per cent after certain prior claims thereon should be paid. The only averment of the performance of the Cochrane and Black contracts by the firm of Black, Lamon & Co., or either member of such firm, was that "they undertook the prosecution of said claim, and urged the same with great persistence before the committees of Congress, and did all in their power to bring about such legislation as the situation demanded, and they so continued so long as the firm of Black, Lamon & Co. existed. That, after some years, said Jeremiah S. Black, by reason of his fail ing strength and advanced life, was compelled to abandon the active work of his profession, and the said copartnership was, for that reason, dissolved, and the duty of prosecuting said claim devolved solely upon said Lamon." The bill was subsequently amended in this particular by averring "that said services were rendered and said advances were made with the full knowledge and consent, and at the special instance and request of the Choctaw Nation, with the agreement and understanding that the said plaintiffs were to receive as compensation for said services such sum as the same were reasonably worth, to be paid out of the money claimed as aforesaid, when paid by the United States, and that said agreement and understanding were independent of the said Cochrane contract and of the rights claimed by the plaintiffs under and by virtue of the said Cochrane contract." A subsequent paragraph set up a lien upon the judgment rendered in favor of the Choctaws, and upon the amount due from the United States, aud upon the thirty per cent fund set apart by the Choctaw Nation for the payment for services. The amended bill further averred that while the question of the payment of the claim was pending before Congress, McKee procured the passage of two acts of the council of the Choctaw Nation, which acts were passed, as requested by *McKee, with the express understand-[319 ing and agreement between McKee and the Choctaw Nation that he would "pay to these complainants and others such sum or sums of money as they were justly entitled to receive for the services rendered and money expended by them in the prosecution of said claim, with the further agreement that when said McKee should receive" the money set apart by said acts, as aforesaid, "that be, the said McKee, would hold the same in his possession in trust for the benefit of such persons, including these complainants, as might be entitled to some part thereof." The prayer was that McKee be enjoined from collecting the thirty per cent set apart for the payment of expeuses; that a receiver be appointed to collect the same from the Treasury and pay it out to the plaintiffs and such other persons as had a just and equitable claim thereto. Upon filing this bill, an order was entered enjoining the defendant from receiving this money from the Treasury. McKee, however, disregarded this order, no bond having been given as required by the rule of the court, and drew from the Treasury $783,768.82, which was twenty-five per cent of the whole judg ment, five per cent of the thirty per cent baving been paid to one Luce, who had taken Blunt's place in the contract. A rule was issued against McKee to show cause why he should not be punished for contempt in violating the restraining order of the court, but, it appearing that no bond had been filed, the motion was overruled and McKee was discharged. On the discharge of the rule, plaintiffs filed a petition based on the bill, answer, and affidavits, and prayed for the appointment of a receiver. After full argument, the court or dered that McKee should pay into court the sum of $136,500, to be held subject to the order of the court. McKee refused to obey this order, and absconded from the jurisdistion of the court. An appeal, however, was taken from the order, and the same was vacated and rescinded on December 3, 1889. Subsequently, upon a hearing upon pleadings and proofs, a decree was rendered in favor of Ward H. Lamon against McKee as compensation for his services rendered and of his disbursements and expenditures, for [320 $35,000, with interest thereon at the rate of si per cent, and so much of the bill as related to claim of Lamon and Black, or either of them, as assignees of the so called Cochrane contract, and as surviving partners of Black and Lamon or Black, Lamon & Co., was dismissed. From this decree the defendants, Ward H. Lamon and Chauncy F. Black, appealed to this court. Messrs. John J. Weed and Jefferson Chandler for McKee. Messrs. Nathaniel Wilson and James Coleman for Lamon, etc. Mr. Willis B. Smith for Marbury, Administrator. Mr. Justice Brown delivered the opinion of of the court: In these cases, Nos. 33 and 34, we are concerned only with the decree in Lamon's favor for $35,000, and with that part of the decree dis The Choctaw Nation had really no interest in the thirty per cent. The stipulation was made by Blunt and McKee for the benefit of the parties interested in the percentage, and as soon as the money should be received by them, or either of them, they would hold it as trustees for the persons legally and equitably entitled to it. McKee, having obtained possession of the money, may be held accountable by a court of equity for its proper distribution. There can be no doubt of the general proposition that where money is placed in the hands of one person to be delivered to another, a trust missing the claim of Lamon and Black. The [ecution of such claim upon the principles of bill was originally filed for the purpose of secur- equity and justice, according to the value ing the payment to Lamon and Black of thirty of the services so rendered. per cent of the sum of $2,858,798.62 which the appellant was about to receive from the United States, under the authority received by him from the Choctaw Nation, and also for an injunction restraining him from receiving such sum of money, and for the appointment of a receiver, who should be authorized to collect this sum from the Treasury, whenever the same should become due and payable; and also for an accounting between the appellant and Lamon and Black in respect to the amount due them for services rendered and money expended in the prosecution of the claim. It ap pearing, however, that the contract of Februarises in favor of the latter, which he may enary 13, 1855, was never carried out, nor the money ever collected as required by the contract 321 between Cochrane and the Choctaw Na tion before Cochrane could become entitled to bis thirty per cent, complainants amended their bill by averring that McKee procured an act of the Choctaw council of February 25, 1888, making provision for the payment of the amount due under his contract with them, by an express understanding and agreement that be would pay to the complainants and others such sum or sums of money as they were justly entitled to receive, for services rendered and money expended by them in the prosecution of their claim. In his answer, McKee denied the allegations of the bill so far as it related to services alleged to have been rendered in the prosecution of the said claim by the firm of Black, Lamon & Co., or either of them, previous or subsequent to July 16, 1870, but on the contrary averred that Black retired from and abandoned the case before such date; that by reason of such abandonment, the Choctaws, being without counsel, solicited himself and Blunt to take charge of the prosecution of such claim. force by bill in equity, if not by action at law. The acceptance of the money with notice of its ultimate destination is sufficient to create a duty on the part of the bailee to devote it to the purposes intended by the bailor. Taylor v. Benham, 46 U. S. 5 How. 233, 274 [12: 130, 149]; Kane v. Bloodgood, 7 Johns. Ch 110, 11 Am. Dec. 417; Baring v. Dabney, 86 U. S. 19 Wall. 1 [22: 90]; National Bank of Baltimore v. Connecticut Mut. L. Ins. Co. 104 U. S. 54 [26: 693]; Keller v. Ashford, 133 U. S. 610 [33: 667]; Union Mut. L. Ins. Co. v. Hanford, 143 U. S. 187 [36: 118]; Ryan v. Dox, 34 N. Y. 307, 90 Am. Dec. 696; Story, Eq. Jur. SS 1041, 1255; Mechem, Agency, $ 568. And in enforcing such trust, a court of equity may make such incidental orders as may be necessary for the proper protection and distribution of the fund. * It is true that, in this case, the names of the beneficiaries are not given in the instrument creating the trust, but they are designated by class as "all parties who have rendered service heretofore in the prosecution of said claim," and were to be rewarded "upon the principles of equity and justice, according to the value of the services so rendered." And if there be any 1. The first point made by the appellant, conflict between individuals of such class, a McKee, that the Supreme Court of the District court of equity is the proper tribunal for the of Columbia was without jurisdiction to enter-adjustment of their respective claims. In such tain the suit, because upon the averments of case, where the property is disposed of absothe bill the suit was, in legal effect, one against lutely, the original assignor or party creating. the Choctaw Nation, to which the nation was the trust need not be made a party to the bill. a necessary party, is without foundation. The Story, Eq. Pl. § 153. This proposition renders suit is neither directly nor indirectly against it unnecessary to consider whether the [323 the Choctaw Nation; nor if made a party de- Choctaw Nation is subject to be sued in the fendant would the complainants be entitled to supreme court of the District of Columbia. any relief against the nation. No claim is The fact that the Act of Congress making the made against it, nor is any attempt made to appropriation required the money to be paid impair the effect of its legislation. By its first upon the requisition or requisitions" issued contract with Cochrane, made by its agents by "the proper authorities of the Choctaw NaFebruary 13, 1855, in pursuance and by virtue tion" did not oust the court of equity from conof resolutions of its legislative council of No- trolling its subsequent disposition. The object vember 9, 1853, and November 10, 1854, it of the bill is not to change the direction of agreed to pay Cochrane for his services thirty Congress in respect to such payment, but to per cent of all collections made by him in their determine the further disposition of the money behalf. By its second contract, it doubtless after it has reached the hands of the designated assumed that the first contract had been aband-payee. oned by Cochrane and his successors, Lamon The objection that there was no considera. and Black, and agreed to pay the same thirty tion for the promise made by the appellant to per cent upon an amount which had already been fixed, with the further stipulation that Blunt and McKee should pay to Mrs. Cochrane five per cent upon such thirty per cent and should adjust the claims of all parties who had 822] theretofore *rendered service in the pros adjust the claims of all parties, etc., is untenable since the original receipt of the money is a sufficient consideration for all promises, expressed or implied, with reference to its final disposition. Walker. Rostron, 9 Mees. & W. 411; Mechem, Agency, § 568. |