1852. HARRIS V. DOE. Nov. Term, The restriction upon the ability of the Indians to convey the lands granted to them by the treaty, was intended for their benefit, and such restrictions have always received a liberal construction. It is founded upon the supposition that they are incompetent to traffic with the whites upon equal terms, as a general rule, and from their simplicity and ignorance liable to be easily imposed upon. The government, in giving lands to them, humanely desired to protect them from such imposition, and provided that they should not transfer them, unless the president of the United States should be satisfied that the transfer was a judicious one, and made for a reasonable consideration. The president, in giving his consent to a petition for authority to sell such lands, would undoubtedly be influenced by the particular circumstances of the case, such as the capacity or discretion of the person desiring such authority, the object for which the sale was to be made, &c. We do not think it would be proper to apply his consent given to one person to sell to a sale by another person. In this case, the mother, Josette, may have been a very competent person to make sale of the premises, and her heirs totally incompetent. It is not to be inferred that because the president consented to a sale by Josette that he would, therefore, have consented to a sale by her heirs, and as Josette did not exercise the authority given to her to divide the land among her children, the latter must be considered as having taken it by descent and with the restriction upon their ability to transfer it pro vided by the treaty. Josette may, herself, for anything we know to the contrary, have finally concluded that her children, or some of them, were unfit to be entrusted with the power to convey their land, and for that reason purposely refrained from making a division among them. It is also urged that a subsequent approbation of the president might have made the deed of Josette's heirs good, and that it was voidable merely. There is, however, no proof of any such subsequent approbation. We think, therefore, that in this case, the title to the premises in controversy is shown to be outstanding in 1852. GASTON V. BOARD OF COMMISSION the heirs of Josette Beaubien, and the plaintiff must fail Nov. Term, unless the defendants are precluded from availing themselves of this fact. It is well established that an execution-defendant cannot avail himself of this species of defence against a purchaser at a sale under the execution, ERS OF MARION and had Samuel Harris been the sole defendant, the plaintiff would have still been entitled to recover his term, for Samuel Harris would not have been permitted to resist the claim of the plaintiff to be placed in possession by alleging that his own title was defective. But the other two defendants, Steinberg and Fell, do not R. Brackenridge and D. H. Colerick, for the appellants. COUNTY. 3 497 GASTON V. THE BOARD OF COMMISSIONERS OF MARION COUNTY. A post mortem examination made by a physician at the request of the coroner is not a service covered by the physician's employment to attend upon the county poor. A physician is not entitled to any greater compensation for traveling to and The expenditure of labor and skill by the physician in a post mortem exa- expense. The board of commissioners of a county have jurisdiction of the claim of a physician for services rendered in a post mortem examination made at the request of the coroner, and the judgment rendered by the board on VOL. III-63 153 373 Nov. Term, 1852. GASTON V. BOARD OF COMMISSIONERS OF MARION COUNTY. Friday, the claim, if brought before them according to the statute, is, while unreversed, conclusive. To give the board jurisdiction of the claim, it is not necessary that it should be brought before them like a formal suit at law. ERROR to the Marion Circuit Court. PERKINS, J.-Dr. Gaston sued the commissioners of Marion county for services rendered in a post mortem examination of the body of a deceased person, which examination was made upon the call of the coroner of the county. Judgment for the defendant in the Circuit Court. The case was submitted and decided upon the following agreement as to the facts: "It is agreed that an inquest was held over the body of James Smither on the 14th of March, 1849, in the county of Marion, by Peter Newland, as the coroner of said county; and that he is the coroner of said county; that for the purpose of enabling the jury to determine by what means the said James Smither (who it was supposed came to his death by poisoning) came to his death, it was necessary to have a post mortem examination of the body of said Smither, who had been dead and buried eight days; that the plaintiff was subpoenaed by said coroner for that purpose, and, failing to attend upon said subpoena, an attachment was issued for said plaintiff, who was accordingly attached and brought thereunder to Pike township, in said county, where said inquest was held; and there, under the direction of said coroner, made, with the assistance of others, the post mortem examination of said James Smither, deceased, and was there sworn as a witness in the case, and testified to said jury as a witness, and communicated to them the result of that examination, and his opinion of the means by which said Smither came to his death;" that the examination was fourteen miles from the residence and office of said Gaston, and occupied the space of two hours; that said Gaston had, previously to commencing this suit, filed his claim for compensation with the county commissioners who had rejected it, and no appeal had been taken; that at the time said Gaston made said examination he was one of the physicians employed by the county, at a given salary, to attend upon all county paupers; that if he is entitled to recover at all in this case, the judgment shall be for 25 dollars. Nov. Term, 1852. GASTON V. BOARD OF COMMISSION This agreement is signed by Ketcham and Taylor for ERS OF MARION the plaintiff, and R. L. Walpole for the defendants. The service rendered in this case by Dr. Gaston was not covered by his employment to attend upon the county poor. He was entitled to no compensation for that service so far as the traveling and giving testimony in obedience to the subpoena were concerned, beyond that of an ordinary witness. Physicians are not specially privileged in this particular. But the expenditure of labor and skill in the post mortem examination created a claim to additional compensation from some source. Either the coroner who procured the service, or the county, should pay for it. We have no doubt that in a case where a post mortem examination is really necessary the coroner may, by his employment, bind the county to the payment for a sufficiency of professional skill to make the examination. To that extent, at least, he must be the agent of the county (1). But whether the employment of the plaintiff in the present case was such as to entitle him to compensation from the county or not, we have not to determine. The agreement upon which the cause was submitted states that said plaintiff had, before the commencement of this suit, presented his claim for his service in said post mortem examination, in company with the claims of two other physicians, to the board of commissioners of Marion county, before whom it was docketed, heard, and decided against said plaintiff, all of which appears of record, and that no appeal had been taken from that decision. That judgment of the commissioners bars this suit. The commissioners were a Court having jurisdiction of the cause; it was brought before them in the manner pointed out by the statute, and their judgment, while unreversed, is conclusive. See the case of The State v. Conner, 5 Blackf. 325. It is not material that the claim was COUNTY. WILLEY V. Nov. Term, not brought before said commissioners in the manner of 1852. a formal suit at law. It was not necessary to give the commissioners jurisdiction that it should be so brought. THE STATE. See Hart v. The Board of Commissioners of Vigo county, 1 Carter's Ind. R. 309. And section 23, R. S. p. 184. Per Curiam.-The judgment is affirmed, with costs. J. L. Ketcham and N. B. Taylor, for the plaintiff. R. L. Walpole, for the defendants. 1) See Alleghany County v. Watt, 3 Penn. State R. 462. Friday, WILLEY and Others v. THE STATE on the Relation of SMITH. The language of a bond was as follows: Know all men that we, A. B., C. D., and E. F.,are held and firmly bound unto, &c., in the sum, &c., for the payment of which, &c., we bind ourselves, &c., severally and firmly by these presents. Held, that the bond was joint as well as several. ERROR to the Crawford Circuit Court. BLACKFORD, J.-This was an action of debt brought by The State, on the relation of Smith, against Willey and two others. The suit was founded on a bond as follows: Know all men by these presents that we, Elam Willey, J. N. Phelps, John Lyntch, are held and firmly bound unto the state of Indiana in the sum of 6,000 dollars, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors, and administrators, severally and firmly, by these presents. Sealed, &c. The condition of the above obligation is such, that whereas the above-named Elam Willey has been this day, by the Probate Court, &c., appointed guardian, &c.; now if the said Elam Willey, as guardian as aforesaid shall well and truly discharge his duties, &c., then, &c., else, &c. |