The daily union., 1852-08-17


Now, trust that shall come into this Senate
and advocate proposition that is legally ridiculous and
absurd. | do not come here now TO advocate such
proposition here after having studied this cas-,
thoroughly after having examined all The authorities
see whether we were warranted in doing what this
amendment proposes to donot before all this did come
here with this proposition Now, ii the state OF the case
was as IL is represented by my honorable friend from
North Carolina. Mr.. BADGER,l admit that these men
could not recover IN court OF law the parties were
both liable 10 suit But let me read what was the con
tract made in lS43 between these partes and spuans
in relation 10 this very fund The contract is in these
words
Ia consideration whereof the under signed on behalf
OF the said CheIokees west Then come the Of sew
eral OF hen do covenant and TO be
and j. f. Kendall. upon any sum or sums OF money o.
whatever else OF value may be allowed and appropriated
from time to me US appropriated and allowed; and the
ad delegates do hereby authorize and empower the said
said Cherokees west to demand and receive from the
a Of the United States Or the proper accounting officer
| And then IN further clause they say, sand do au-
thonze them TO demand and receive, from the proper Off
Ger or officers, full title TO twentieth part thereof il
being the true intent and meaning of the said delegates
that the said A. and John f. Kendall shall receive per
cent or onewentieth part OF everything OF value which
may be allowed and appropriated on account OF said
claims, TO be received directly from the United States
without any further act or authority from the said dele
gates"
Now, what does il matter what the treaty between
these parties and the United States may covenants Can
they go behind this made with their agents. and
defeat them But this is not thing. This ques-
ton in case where there simple attorneys lien, has
been decided by an Attorney General Of the Uned States
learned man, although he has not perhaps shining tai
ents others, yet in whose judgment and opinion
would confde in that OF any other man who
has been office these United States for the last twenty
years. mean Mr.. Henry d. Gilpin, who never could
be brought to give an opinion that law and justice and his
conscience did not warrant. This is his opinion after
going the claim, which was ordinary ator
neys lien upon fund for service rendered, he says
for certainly where attorney has performed import
ant tQi fha m.
tai in securing claim which might otherwise have been
lost and where this is done under stipulation with
bona ie understanding that he 10 receive the amount
to which he was entitled directly from the United States,
he has an interest in the fund which the principal himself
could revoke, and which the department is bound 10
recognise" Now, think have sustained my position.
have abundance of evidence here TO show that il was
through the industrious and constant attention given by
the Messs Kendall TO this claim Of the Cherokees that
justice finally done. Mr.. McG states, and the
present Secretary of the Interior states We have evil
dence aso that MIR. Kendall gave notice to the Secretary
Of the Interior that he would hold the government bound
for the sum- if they paid il to the Indians, in despite of
this authonty, copy of which notice was filed IN The de.
partment
And. above all, ask my friend from North Carolina
[Mr. BADoER,l in whose legal judgment have much
confidence in that OF any ndivaua here or
whether third party who nerferes and prevents the
receipt of money by party having interest in the fund
is not liable in law and equity II tha, So then there
claim here the part OF the Kendals which good
at any rate, so Mr.. Gilpin decides in parallel case
though this is absolute power irIevocable, while IN
the former II was but simple en yet he declared
that the government, in his opinion bound to recog
Mr BRODHEAD. One equitable view of this case
has not yet been presented These metorious per-
sons. and they have no doubt an equitable claim for
services which they have rendered But the question
is whether that claim is upon the government under
stand the facts of the TO be these: these two gen
,lemen, together with a gentleman OF the name Of
Stambaugh, prosecuted this claim against the gov
ernmen under separate contracts, however, and were
| TO receive each much The amendment was adopt
ed at the last session OF Congress, which has been
.vraI hu fha from Mr.
WALKER.l This money, large sum, was paid TO these
Indians per edpia in council assembled One OF the
agents s. = went nse ana oy 'ome
pretty large ee-which was paid in Arkansas, as un.
derstand it. They have paid y.odd thousand dol
lars already for the prosecution of this claim. Now
propose that Stambaugh divide with the other persons
who prosecuted this claim tLaugblerl That is the
equitable view OF the case to which | referred.
CooPERl has referred to and my legal judgment, ou,
OF espec, to him feel bound 10 bring to the Senate
lltue more distinctly the miserable ground upon which
this claim rests. Now, what the action OF Congress
upon which this claim basedi II is this; when this
appropriation made directed the money 10 be paid
according to The terms o. the treaty Inc terms o. ,hs ,h
members OF the tribe. It's then alleged upon the part
OF these claimants that we have become bound 10 pay
them moneys because by causing the money TO be
paid according to the terms oil The treaty which consu.
ted Obligation have deprived them OF one OF the
means or remedies by which they would have forced
their principals 10 pay TO them the compensation ioI
which they contracted. That is the ground OF this
claim. Now say that the case IS exactly similar to
one which will suppose We will suppose that you
owe me sum OF money. appoint my friend from Nus
sour here [Mr GEYERl my agent to collect IT. but you
come and pay the money to me. refuse TO pay him any
compensation for bis services and he then sues you upon
the ground that n consequence OF your paying the money
the principal instead OF the agent you have deprived
him Of one OF the Of obtaining bis compensation
That is the aspect Of this and no human Inge
nuiiy can give il any other aspect We paid this money
according the terms OF the treaty BY our own act we
required that il should be paid per capita, and we 50
paid it. And now we are gravey told thati we had al
lowed the money TO 90 into the hands oil the agent ht
would have deducted his compensation, and everything
| would have then been perfectly straight But mas
much paid the money to the principal and the prn
cipal refuses 10 pay the agent, we are bound 10 make
good him The whole question resolves itself into
this: If A is the agent OF in reference to CLAIM
against G, does that absolve the debtor from paying
the debt to the principal B ! Certainly not
My friend has referred TO this contract He says, wha
does it signify what the treaty contanshee is the con
tractl ask hun, in turn, what does IL signify what ht
contract says The United States have part IN tina
contract That is an agreement between the lndan
and their agents for prosecuting this claim. Doe
that affect this government, and estop us from pay
ing the money 10 the Indians, and control our &C
ton in any way Certainly not. The government
cannot be es,opped in any that is settled prin
ciple But no individual could he estopped in thu
adopted the executive department these persons couC
have had claim upon this money, even If il had beer
paid without this amendment What is the contract
These persons, behalf OF the Cherokees West GOV
enant and agree pay. TO be paid the full com
mission OF five per cent" That authorizes them TO re
ceiva the commission OF FIVE per cent one.twenteti
part And II goes on TO say that It shall be received d