23 Ark. 77 | Ark. | 1861
delivered the opinion of the court.
To an action brought by Duval, administrator of David Barnett, Rogers pleaded that the bond sued on was given by-him to Barnett, who was a Creek Indian, and a resident in the Creek Nation, and that the bond was null for being in opposition to acts of Congress, which protect Indians from the payment of money on executory contracts. The legislation of Congress upon this subject, has been the subject of three cases before this court. In Clark vs. Crosland, 17 Ark. 43, it was held that a contract made by an Indian, in the Indian country, to pay money at a future day, could not be enforced in the courts of this State, because prohibited by act of Congress. In Hicks vs. Eushartonah, 21 Ark. 108, the law was held not to defeat a contract for the payment of goods, made in Sebastian county. And in Taylor vs. Drew, 21 Ark. 485, the plea of exoneration by the statute was adjudged bad on demurrer, because it did not allege that the note sued on was executed in the Indian country. That case would have been decisive of this, if the bond here sued on had been given by an Indian, instead of to one, for the plea under consideration only avers that Barnett resided in the Indian country when the bond was executed, not that it was there made. But the act of Congress could not, under any circumstances, release Rogers from the payment of the money he bound himself to pay, as it was not intended to relieve white men from the discharge of their obligations to Indians.
Rogers pleaded, secondly, that Duval was not the administrator of Barnett, because Barnett lived and died in the Creek Nation, and had nothing in Arkansas for administration. Notwithstanding the plea, Duval might have obtained letters of administration upon the goods and effects of Barnett, and if he had, they could not be questioned by plea in the Circuit Court. The facts alleged in the plea might have been good grounds for the refusal of letters of administration by the proper authority; perhaps, upon such facts, the Probate Court that may have granted letters would revoke them, but the plea is no answer to the declaration in its averment of the issuance of letters of administration.
Both pleas were bad; and the court in deciding them to be bad on demurrer is sustained.