3 Kan. 134 | Kan. | 1865
By the Court,
The first question presented by the record is, when did the note sued on become due ? The note is not a conditional one. The maker owed the payee who had performed labor for him. He declares in the paper that he has received the consideration, which all must admit was a valuable one. The existence of the debt was not made to depend upon a condition or contingency. Everything necessary to constitute a promissory note, except the time of payment, is clearly expressed. As to the time the language is pecu
What was such reasonable time, was in this case determined by the parties themselves. A payment was made J une 18th, 1860, about sixty days after the note was made. The parties considered this a reasonable time, and it would have been so in law in case a formal demand had been made. The payment was equivalent, under the circumstances, to a demand. The money then became due, at least as early as June 18th, 1860, at which time the statute of limitation would begin to run. The maker pleaded the statute, which was a good defense, unless there was a subsequent payment or written acknowledgment within three years preceding the commencement of the suit. The petition alleges a payment on the 10th of November, without stating any year. As a matter of fact, a court or jury might infer that it was in 1860, but as a matter of allegation in pleading, the court could not interpolate those or any other figures in pleading; facts must be plainly and concisely stated, not inferentially stated. Had the petition averred a payment on the 10th of November 1860, the court or jury upon a trial might have been justified in finding as a fact, upon the production of the note with all of the endorsements, that a payment had been made at that time,
The court below, therefore, erred in sustaining the demurrer to the answer, setting up the statute of limitations.
As to the third defense, the court is of opinion that the allegations do not bring the case within the provisions of the act of Congress of June 30th, 1834. If it were admitted that the place where this note was made was without the limits of the then territory of Kansas, and was the “ Indian country,” as defined by the act referred to, and that the maker was an Indian belonging to the tribe occupying that locality, it would not follow that his contract with a white man would be void; a contract made out of the territory is not for that reason void. A contract between a white man and an Indian made in the “ Indian country,” would be void if prohibited by the act of Congress. But the act does not prohibit all contracts between white men and Indians. When made under certain circumstances they are prohibited, but the allegations in the answer do not bring this one within the prohibition. An Indian may build a house in the “ Indian country,” and may, with the consent of the United States authorities employ carpenters and masons to do the work; and when the work has been performed, that assent will be presumed. The answer alleges that because the defendant is an Indian, the court had no jurisdiction of his person. To this we reply, in the language of a distinguished modern jurist, that, “his right to be sued is unquestionable.” It may not be such a right as he would care to exercise very frequently, it being a rather expensive luxury, but it is one in the full enjoyment of which the law will afford him ample protection whenever he shall, under proper circumstances, insist upon it. The court below did not err in sustaining the demurrer to the third defense. The judgment will be re
