LOVINGOOD v. SMITH, 52 N.C. 601 (1860) G. M. LOVINGOOD, ADMINISTRATOR, v. HENRY SMITH.Supreme Court of North Carolina (August Term, 1860.) The act in relation to contracts with Cherokee Indians, Rev.
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LOVINGOODv. SMITH,52 N.C. 601(1860)
G. M. LOVINGOOD, ADMINISTRATOR, v. HENRY SMITH.
Supreme Court of North Carolina
The act in relation to contracts with Cherokee Indians, Rev. Code, ch. 50, sec. 16, applies as well to contracts made by one Indian with another as to those made by an Indian with a white man.
DEBT on a sealed obligation, tried beforeBailey, J., at Fall Term, 1859, of CHEROKEE.
(602) The instrument declared on, which was for the payment of $100, was produced and proved. The plaintiff's intestate and the defendant were Cherokee Indians within the second degree, and the only defense relied on was the act of Assembly requiring a contracts, beyond a certain sum with these Indians, to be in writing and witnessed by two subscribing witnesses. Rev. Code, ch. 50, sec. 16.
It was contended on behalf of the plaintiff, and so held by the court, that this act of Assembly does not apply where both the parties are Indians, as in this case. The defendant's counsel excepted to this ruling of his Honor, and, on a verdict and judgment against him, appealed.
No counsel for plaintiff.B. S. Gaither for defendant.
PEARSON, C. J.
His Honor was of opinion that the statute does not apply to contracts made by one Cherokee Indian with another, but was confined to cases where a Cherokee Indian made a contract with others "who were not of that race" — that is, with a white man, or a free negro, or a Creek or Chocktaw Indian, or some one who was not a Cherokee. It may be that such was the intention of the law makers; but if so, apt words are not used to express the meaning, and there is not rule of construction by which the general terms used can be so restricted in their operation. Rev. Code, ch. 50, sec. 16: "All contracts ofevery descriptionmade with any Cherokee Indian for an amount equal to $10 or more shall be void, unless," etc. These words are as general as they canPage 463be. Here is a contract for an amount over $10, made with a Cherokee Indian, and the requirements of the statute are not observed; so it comes within the words of the statute, and there is nothing to show that it does not come within the meaning; for if the intention was to confine the act to contracts made bywhitemen with Cherokee Indians, it could have been easily so expressed; and we cannot put that construction on the statute without imputing to the lawmakers an inability to (603) express their meaning in an intelligible manner.
Judgment reversed, and avenire de novo awarded. As the case turns upon a question of law, we regret that it was not made up so as to enable this Court to give a final judgment.
PER CURIAM. Reversed.Cited: S. v. Ta-cha-na-tah,64 N.C. 616.