George W. Parks, Administrator of Samuel Parks, v. John Ross, 11 How. 362

Mr. Justice GRIER delivered the opinion of the court. On the trial of this cause below, after the plaintiff had closed his testimony, the defendant’s counsel -requested the court to instruct the jury, “ that, if the evidence is believed by the jury to be true, the plaintiff is not entitled to recover.” This instruction was given by the cpurt, and excepted to by plaintiff. Its correctness is the question for our decision. It is undoubtedly the peculiar province of the jury to find, all matters of fact, and of the court to decide all - questions of law arising thereon.

But a jury has no right to assume the truth of any material fact, withdut some evidence legally sufficient to establish it. It is, therefore, error in the court to instruct the -jury that they may find a material-fact, of which there is no evidence from which it may be legally inferred. Hence the practice of granting an instruction like the present, which makes it imperative upon the jury to find a verdict for the defendant,'and which has in many States superseded the ancient practice of á demurrer to evidence. It answers the same purpose, and should be tested by the same rules.

A demurrer, to evidence admits not only the facts stated therein, but also every conclusion which a jury might fairly or reasonably infer therefrom. - The question for our consideration is, therefore, whether, the evidence 'submitted, by the plaintiff in this case was sufficient to authorize the jury in finding any contract ,or undertaking, either express or implied, on the part of John Ross, the defendant, to pay the money demanded in the declaration. A brief

summary of the admitted facts of the case will, we think, sufficiently demonstrate the correctness of the instruction given-by. the court below, and that, if the defendant had . demurred to the evidence in form, he would have been entitled to the judgment of the court. The plaintiff’s intestate was a citizen of the Cherokee nation. In 1838, a large portion of this nation, of which John Ross was the principal chief, had consented to emigrate to the west of the Mississippi River.

The Cherokees were permitted to conduct their emigration by their own agents, the expense thereof to be advanced by the United States but of certain moneys or money due to the Cherokees by a former treaty. They accordingly appointed certain persons of their own nation as delegates or special agents to act in behalf of the nation. Of this agency John Ross was.the chief, and acted as general superintendent. As such, he received large sums of money from the treasury of the United States for the purpose of defraying the expenses of the emigrationj on estimates approved by General Scott.

Among these estimates was one for hire of fifty-one wagons and teams, amounting in the whole to $ 51,000. In this amount was included an item of $ 14,280, as necessary to pay the hire and expenses of the wagons on their return, at the rate of seven dollars per day. The plaintiff’s intestate was owner of four of the fifty-one wagons anff teams employed. After the emigration' was ended, the- delegates or agents of the nation settled the accounts, and among others that of plaintiff’s intestate, who received the amount of his account and gave a receipt in full.

Nothing was allowed him for return wagon hire in the account settled, and none was- claimed by him, as he was himself a Cherokee, and intended to reside in the nation. Since his death, this suit has been instituted by his administrator, on the mistaken notion, that, because in the money of the nation received by John Ross there was included a sum of $ 14,280 estimated as necessary to pay return wagon hire, therefore the -plaintiff’s intestate was entitled to his proportional share of it,, without any regard to the fact, whether the.

Cherokees were willing to allow it to him, or whether it was due to him on his own contract with their agents. There was no evidence whatever tending to show a special contract by John Ross personally to pay for the teams and wagons, either for going or returning. The contract of plaintiff’s intestate was with the Cherokee nation, through their known public agents or officers. John Ross was the superintendent, treasurer, and disbursing officer.

The money in his possession was the money of the nation; the plaintiff’s intestate, and all who were employed in assisting the nation to emigrate, were fully aware that John Ross was acting as a public officer, and dealt with him as such. ' Now, it is an established rule of law, that an agent who contracts in the name of his principal is not liable to a suit on such contract; much less a public officer, acting for his government.

As regards him the rule is, that he is not responsible on any contract he may make in that capacity ; and wherever his contract or engagement is connected with a subject fairly within the scope of his authority, it shall be intended to have been made officially, and in his public character, unless the contrary appears, by satisfactory evidence of an absolute and -unqualified engagement to be personally liable. The Cherokees are in many respects a foreign and independent nation. They are governed by their own laws and officers, chosen by themselves.

And though in a state of pupilage, and under the guardianship of the United States, this government has delegated no power to the courts of this District to arrest the public representatives of agents of Indian nations, who rhay be casually within their local jurisdiction, and compel them to pay the debts of their nation, either to an individual of their own nation, or a citizen of the United States. The judgment of the Circuit Court is therefore affirmed, with costs. Order. .

This cause came on to be "heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.