Lovingood v. Smith, 52 N.C. 601, 7 Jones 601 (1860)

Aug. 1860 · Supreme Court of North Carolina
52 N.C. 601, 7 Jones 601
G. M. LOVINGOOD, Adm'r v. HENRY SMITH

G. M. LOVINGOOD, Adm’r v. HENRY SMITH.

The Act in relation to contracts with Cherokee Indians, Rev. Code, eh. 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.

This was an action of debt, on a sealed obligation, tried before Bailey, J., at the Fall Term, 1859, of Cherokee Superior Court.

*602The 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 contracts, beyond a certain sum, with these Indians, to be in writing, and witnessed by two subscribing witnesses. Revised Code, ch. 50, sec. 16.

It was contended on behalf of the plaintiff, and so held by the Court, that this Act of Assembty 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 to this Court.

No counsel appeared for the plaintiff in this Court.

Gaither, for the 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 no rule of construction, by which the general terms used can be so restricted, in their operation ; Rev. Code, ch. 50, sec. 16 : “ All contracts, of every description, made with any Cherokee Indian, for an amount equal to ten dollars or more, shall be void, unless,” &c. These words are as general as they can be. Here is a contract for an amount over ten dollars, 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 by white men with Cherokee Indians, it could have been easily so expressed; and we cannot put that construction on the statute, without imputing to *603the law-makers an inability to express their meaning in an intelligible manner.

Judgment reversed, and a venwe 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,

Judgment reversed.