United States v. Boyd

• Decision Date: 05 April 1896
• Citation: 79 F. 858
• Parties: UNITED STATES v. BOYD et al. (EWART, Intervener).
• Court: U.S. Court of Appeals — Fourth Circuit

79 F. 858

UNITED STATES v. BOYD et al. (EWART, Intervener).

United States Circuit Court, W.D. North Carolina.

April 5, 1896

R. B Glenn and D. A. Covington, for the United States.

L. M Bourne, G. H. Smathers, and W. T. Crawford, for defendant.

Before SIMONTON, Circuit Judge, and DICK, District Judge.

SIMONTON Circuit Judge.

There is one question remaining open in this case. That arises upon the claim of H. G. Ewart, Esq., for compensation for his services to the Eastern Band of Cherokee Indians. This matter was referred to the standing master, and he reports the testimony. It appears that Mr. Ewart was under contract in writing with the proper authorities of the Eastern Band of Cherokee Indians to effect a sale of timber for them. The timber has been sold. The sale has been approved in this court in proceedings to which the United States and the Eastern Band of Cherokee Indians were parties. In sustaining his claim, the petitioner introduces evidence as to the value of his services, and substantiates this with a verdict obtained in the superior court of Henderson county N. C. There does not appear to be any question that the services were rendered. The objections go--First, to the extravagance of the charge; second, to the want of capacity in the Indians to make the contract; and, third, the failure on the part of the petitioner to get the approval of the secretary of the interior to the execution of the contract. The contract, however, has been made, and has been ratified by this court, in these proceedings, after examination into it. This disposes of the second objection. It also disposes of the third, because the only reason for getting the assent of the secretary of the interior was to secure the execution of the contract. This end has been accomplished. The charge made by the petitioner is a large one, so much so as to justify the district attorney in resisting it. But to sustain it he has the verdict, taken after investigation, as the master reports, in the state court, and also evidence outside of it. To repel this there is no evidence. Under these circumstances the court would assume an unusual responsibility in differing from these witnesses, there being an entire absence of evidence showing fraud and imposition. It has been suggested that this intervention has no place in the present proceedings, which were filed to enjoin the sale of this timber. But it is germane to this subject. The validity of this sale was at issue,--a sale effected by the petitioner, and incidentally the distribution of the proceeds of sale if it be sustained. Before this can take place, the petitioner wishes his claim investigated. Strictly speaking he cannot be said to have a lien on these funds, as the money is not in his hands. In re Paschal, 10 Wall. 483; McPherson v. Cox, 96 U.S. 404. But an attorney always has the protection of the court in securing his fee, and he can ask for it. For want of a better word, it can be called an "equity." In Massachusetts & Southern...