The United States, Use of James Mackey Et Al Plaintiffs In Error v. Richard Coxe

• Decision Date: 01 December 1855
• Citation: 15 L.Ed. 299,18 How. 100,59 U.S. 100
• Parties: THE UNITED STATES, USE OF JAMES MACKEY ET AL. PLAINTIFFS IN ERROR, v. RICHARD S. COXE
• Court: U.S. Supreme Court

59 U.S. 100

18 How. 100

15 L.Ed. 299

THE UNITED STATES, USE OF JAMES MACKEY ET AL.

PLAINTIFFS IN ERROR,

v.

RICHARD S. COXE.

December Term, 1855

THIS case was brought up by writ of error, from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.

The case is stated in the opinion of the court.

It was argued by Mr. Chitton, for the plaintiffs in error, and by Mr. Carlisle and Mr. Bradley, for the defendant.

Mr. Justice McLEAN delivered the opinion of the court.

This is a writ of error to the circuit court for the District of Columbia.

The action was brought against the defendant as surety in the administration bond of Austin J. Raines, administrator of Samuel Mackey, late of the Cherokee nation.

Raines received from James Mackey, Joseph Talley, and Preston T. Mackey, as administrators of Samuel Mackey, deceased, a power of attorney for them and in their names to petition the congress of the United States to settle and release the claim of the United States against the said Samuel Mackey, deceased, as principal, and John Drenner, Lewis Evans, and Hiro T. Wilson, as securities; and after the passage of any law in relation to said claim by congress, to receive all moneys that may be due the estate of the said Mackey, deceased, from the treasurer of the United States, and full receipts, acquittances, and relinquishments thereof to make in their name; and further, to adjust and settle with the treasurer of the United States, or other officers of the government, all other claims of said Mackey against the United States, and to receive all moneys due from the United States to said Mackey on any account whatever.

Raines came to Washington and procured a settlement of the accounts between the government and Samuel Mackey, deceased; but the treasury department refused to pay him the balance due Mackey upon the power of attorney, and required him to take out letters of administration. He thereupon applied to the orphans' court of the county of Washington, in the District of Columbia, for letters of administration, which were granted upon his executing bond, with the defendant and James Reeside as sureties. He then received from the treasury the sum of $10,513.05, out of which he paid the expense of administration, and for the balance he executed the following receipt:——

'7th July, 1841. Received of Austin J. Raines, administrator of Samuel Mackey, deceased, the sum of ten thousand five hundred and thirteen dollars and five cents, being the amount due to the representatives next of kin and distributees of said Samuel Mackey, from said administrator.

Signed, JAMES MACKEY,

JOSEPH TALLEY,

PRESTON T. MACKEY.

By their attorney in fact, A. J. RAINES.'

Reeside, the co-obligor in the administration bond, having died several years ago, the process was served only on the defendant.

The declaration contained several counts, stating that the said Samuel Mackey died intestate, leaving Sarah Mackey, his widow, and James Mackey, Preston T. Mackey, William Mackey, George Mackey, Nancy Talley, wife of Joseph Talley, and Corine Mackey, all being citizens of the Cherokee nation, and that, by the laws of said Cherokee nation, the widow and children were distributees of the deceased.

The defendant filed a general plea of performance, on which issue was joined.

On the trial before the jury, among other prayers for instruction was the following: 'If the jury find from the evidence that Austin J. Raines, as administrator of Samuel Mackey, deceased, received from the treasury of the United States the sum of $10,513.05, and after deducting the expenses of administration there remained in his hands the clear sum of $10,505.20 1/2 and no debts of said deceased are shown payable by said administrator; and James Mackey, Joseph Talley, and Preston T. Mackey were the original administrators of said Samuel Mackey, under the laws of the Cherokee nation, the burden of proof is on the defendant to show that said Raines paid said sum of $10,505.20 1/2 to said James Mackey, Joseph Talley, and Preston T. Mackey, or the survivors of them; and although the jury may find that the paper offered in evidence, purporting to be a power of attorney from said James Mackey, Joseph Talley, and Preston T. Mackey to said Raines is genuine, yet the said Raines had no authority to receipt for said parties by himself, as their attorney in fact, to himself as administrator, and that such receipt is not a payment by him as administrator of said parties; and unless such payment be proved otherwise than by such receipt, the said Raines has not performed the condition of this bond as administrator of Samuel Mackey, and the said defendant is liable in this action to the said James Mackey, Joseph Talley, and Preston T. Mackey, or the survivors of them, for the said sum of $10,505.20 1/2, with interest thereon from the date when the same was received;' which instruction was refused, and to which an exception was taken.

There were other exceptions, but this one presents the material points in the case.

By the treaty made between the United States and the Cherokee nation, dated March 14, 1835, in article 5, the United States covenanted and agreed that 'the lands ceded to the Cherokee nation in the foregoing article shall, in no future time, without their consent, be included within the territorial limits or jurisdiction of any State or territory. But they shall secure to the Cherokee nation the right of their national councils to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons and property within their own country belonging to their people, or such persons as have connected themselves with them: provided always, that they shall not be inconsistent with the constitution of the United States, and such acts of congress as have been or may be passed regulating trade and intercourse with the Indians,' &c.

The Cherokees are governed by their own laws. As a people, they are more advanced in civilization than the other Indian tribes, with the exception, perhaps, of the Choctaws. By the national council their laws are enacted, approved by their executive, and carried into effect through an organized judiciary. Under a law 'relative to...