May Term. 1856. off," and still not be entitled to a verdict. If the instruction had assumed that he had done that and nothing more,, it might have been a proper direction to the jury. As to the latter charge, we repeat, that the Ohio river is a common highway; and it was no excuse for the defendant that he placed the log at a point in the river "where it was not usual for laden flatboats to run." If such boats could run there with safety but for the log, it created an obstruction, no matter how much care and prudence the defendant may have used. To hold that every part of the river, except where boats usually run, may be wilfully obstructed, would be an adjudication unsupported by any rule of law. The defendant, for the protection of his property, no doubt, had the right to remove the log; but the point of inquiry is, was its removal to a place in the river where boats can and do run, a reasonable exercise of his righta cautious regard for the rights of others who use the stream for the purposes of navigation? To this question the verdict gives a negative, and, in our opinion, a correct answer. It is not for us to point out what disposition should have been made of the log: still, the evidence fairly induces the conclusion that the defendant, in view of his convenience and the safety of his property, could have disposed of it without creating an obstruction to the navigation of the river. But for that obstruction, the boat would have passed safely: it follows, the plaintiff having used ordinary diligence in the management of his boat, that the defendant's misconduct must be held the proximate cause of the loss. There is a question raised as to the damages. The boat was worth 125 dollars, and there were 712 barrels of lime, which cost, delivered on the boat, 56 cents a barrel. Two witnesses testified that the lime was worth 75 eents, another, 75 or 80 cents per barrel, and there was evidence tending to prove that the boat and cargo were worth 600 dollars. It is contended that the prime cost of the lime and the value of the boat, were the true measure of damages; and that the jury having failed to PORTER V. ALLEN. 1856. DOE V. AVALINE. May Term, adopt that rule in estimating the loss, the verdict is erroneous. Upon the subject of damages, no charges were asked or given, nor does the record inform us as to the rule by which they were estimated. "Probable profits at the port of destination should not be allowed;" nor does it appear that such constituted a part of the verdict. As to the value of the lime the witnesses speak generally. They do not designate the place at which it was worth 75 cents per barrel; and the jury may have inferred that its value at Cannelton, or some other point near the place of loss, was intended. This value, in view of the facts presented by the record, would not, in our opinion, be an improper measure of damages. At all events, the loss having resulted alone from the defendant's misconduct, "the law will not nicely attempt to limit the amount of reparation."-4 Ind. R. 473. We think the jury have not over estimated the amount to which the plaintiff was entitled. Per Curiam.-The judgment is affirmed, with 2 per cent. damages and costs. B. Smith, for the appellant. J. B. Huckeby and C. H. Mason, for the appellee. DOE on the demise of LAFONTAINE and Another v. AVA LINE. The act of February 11th, 1848, repealing the act for the relief of the Miami Indians, &c., of February 3d, 1841, and the act relative to suits against the Miami Indians, of February 11th, 1843, did not repeal the 3d section of chap. 28, R. S. 1843. The courts will not construe a statute strictly, merely because it imposes disabilities, especially if, by strict construction, the object of the legislature would be defeated. Protective and remedial statutes imposing disabilities upon persons for their benefit, must receive a liberal construction. A person recognized as an Indian by the community, by the Indians themselves, by the State and federal authorities,-stamped as such by birth, education, and language,—and having three-eights Indian blood, is held to be an Indian, within the meaning of the statutes of this May Term, State relative to Indians. The laws of this State relative to Indians, are in pari materia, and must ERROR to the Miami Circuit Court. 1856. DOE V. AVALINE. STUART, J.-Ejectment for a section of land in Miami Thursday, May 29. county. Trial by the Court, and judgment for the defendant. The evidence, consisting partly of admissions, is all made part of the record, in the form of an agreed case. Both parties claim title through Catharine Lasselle; the plaintiffs as the heirs at law, the defendant as the vendee of the devisee. Catharine was a daughter of the Miami chief, Richardville. Her first husband, Lafontaine, was also an Indian, and, at one time, head chief of the nation. After the death of Lafontaine, she married Francis D. Lasselle, to whom she devised the section of land in controversy. Lasselle conveyed to Avaline, the defendant. The lessors of the plaintiffs denying the validity of the will, claim as the heirs of the devisor. The exact date of the marriage with Lasselle does not appear, but inferentially it must have been some time late in the fall of 1848; for the agreed state of facts, which will be more fully referred to hereafter, briefly says that "the marriage continued about six weeks." The will is dated 21st November, 1848, and speaks of Lasselle as then her husband. Her death occurred in the early part of January, 1849, taking six weeks from the date of the will as the duration of the marriage. It is unfortunate that the evidence leaves such events as the date of her marriage and death in doubt. Matters of such notoriety could have been easily ascertained. 1856. DOE May Term. It is to be regretted that they were not supplied. A statement of these dates would have rendered all the argument addressed to that point, both by counsel and the Court, unnecessary, and thus superseded the minute examination which is required to reach these facts by inference. AYALINE. There is no controversy but that the act of 1847, (p. 108,) giving married women the power to devise by "last will and testament," &c., was in force at the date of the devise by Catharine Lasselle to her husband. But, beyond the bare removal of the disability of coverture in that one particular, the act can have no bearing on this case. The only question arising on the validity of the will, resolves itself into the competence of Catharine to devise. Was she, in November, 1848, a person competent to make a will under the laws of Indiana? To this end, we will inquire first, whether, when the will was made, there was any statutory disability resting upon the Indians in this State, rendering any contract or devise of their lands, in certain contingencies, void. And, secondly, if there was, was Catharine Lasselle an Indian within the meaning of these statutes? First, then, as to what acts in relation to the Indians were then in force. The first act in point of date, seemingly bearing on the question, is chapter 66, R. S. 1843. This act, approved February 3, 1841, is entitled an act for the relief of the Miami and other Indians. The first, second, third, and fourth sections abolish, as to the Indians, the writ of capias in all its forms. Suits brought against them are directed to be instituted by summons without bail. In brief, it abolishes imprisonment for debt, so far as these Indians are concerned, as one measure of relief to them. The other measure of relief is contained in the fifth section in these words: "No white man or negro shall hereafter have the benefit of any of the legal remedies for the collection of debts hereafter contracted by an Indian within the limits of the State of Indiana; and all contracts hereafter made with Indians shall be May Term, null and void." R. S. 1843, p. 1038. By joint resolution of the General Assembly, at the same session, approved seven days thereafter, the fifth section above recited was suspended for the period of five years. R. S. 1843, p. 1039. So that the fifth section of the act of February 3, 1841, did not go into operation until February, 1846. This act and suspending resolution are among the few enactments published at length in the R. S. of 1843, without revision or alteration. In the body of the R. S. of 1843, chapter 28, treating of "real property and the alienation thereof," and under the particular head, "of the persons capable of holding and conveying lands," the third section provides, that, "No Indian can hereafter make any contract for or concerning lands within this State, or in any manner give, sell, devise, or otherwise dispose of, any such lands, or any interest therein, by which such Indian shall be divested of the absolute control, possession, or manage ment of such lands, for a longer time than five years, without the authority or consent of the legislature of this State, except such sale, gift, or devise shall be to an Indian. R. S. 1843, p. 414. The R. S. of 1843, in which this provision is embodied, took effect in the spring of 1844; at what exact time, is not material to the present inquiry. On the 11th of February, 1843, a further act "relative to suits against the Miami Indians," regulating the mode of suing the individual Indians of that tribe, was approved, the third section of which declares that "every contract which may hereafter be made with any Indian shall be absolutely null and void." Gen. Laws, 1842–3, pp. 38, 39. Thus stood the statute law of the State in relation to Indians, up to the early part of 1848. On the 11th of February of that year, an act was passed repealing the act for the relief of the Miami Indians, &c., of February 3, 1841, and also the act of February 11th, 1843, "rela 1856. DOE V. AVALINE. |