in connection with such business as a stamp on the ware manufactured; and they say such se would do them great and irreparable injury. If the plaintiffs owned the name of the defend culty in protecting their ownership. But bey make no such claim; and all arguments or analogies drawn from the law of trade n arks may be laid wholly out of the case. ages, while the loss of services of the latter class can be adequately compensated by an action for damages. 2 Story, Eq. Jur. § 958 a; 3 Wait, Act. and Def. 754; Pom. Eq. Jur. 1313; Bank of California v. Fresno Canal &ant as a trade-mark they could have no iffiI. Co. 58 Cal. 201; Singer Sewing Mach. Co. v. Union Button hole & E. Co. 1 Holmes, 253; Lumley v. Wagner, 1 De G. M. & G. 604; South Wales R. Co. v. Wythes, 5 DeG. M. & G. 880; Montague v. Flockton, L. R. 16 Eq. 189. The contract between the defendant and the plaintiffs is made a part of the complaint. The services which the defendant was to perform for the plaintiffs are not specified therein, otherwise than that they were to be such as should be devolved upon him by the general manager; "it being understood that such duties may include traveling for said Companies whenever in the judgment of said general agent the interests of the business will be thereby promoted;" and also "including such duties as traveling for said Companies as said general agent may devolve upon him, including also any duties as secretary or other officer of either or both of said Companies as said Companies may desire to have him perform." These serv-fendant does have some special and peculiar ices, while they may not be material and mechanical, are certainly not purely intellectual, nor are they special, or unique, or extraordinary; nor are they so peculiar or individual that they could not be performed by any person of ordinary intelligence and fair learning. If this was all there was in the contract it would be almost too plain for argument that the plaintiffs should not have an injunction. The plaintiffs however insist that the negative part of the contract, by which the defendant stipulated and agreed that he would not be engaged in or allow his name to be employed in any manner in any other Lardware, cutlery, flat-ware or hollow-ware business, either as a manufacturer or seller, fully entitles them to an injunction against its violation. They aver in the complaint, on information and belief, that the defendant is planning with certain of their competitors to engage with them in business, with the intent and purpose of allowing his name to be used or employed There is no averment in the complaint that the plaintiffs are entitled to use, or that in fact they do use, the name of the defendant as a stamp on the goods of their own manufacture; nor any averment that such use, if it exists, is of any value to them. So far as the court is informed the defendant's name on such goods as the plaintiffs manufacture is of no more value than the names of Smith or Stiles or John Doe. There is nothing from which the court can see that the use of the defendant's name by the plaintiffs is of any value to them, or that its use as a stamp by their competitors would do them any injury other than such as might grow out of a lawful business rivalry. If by reason of extraneous facts the name of the devalue as a stamp on their goods, or its use as a stamp on goods manufactured by their rivals would do them some special injury, such facts ought to have been set out, so that the court might pass upon them. In the absence of any allegation of such facts we must assume that none exist. The plaintiffs also aver that the defendant intends to make known to their rivals the knowledge of their business, of their customers, etc., which he has obtained while in their employ. But here they have not shown facts which bring the case within any rule that would require an employé to be enjoined from disclosing business secrets which he has learned in the course of his employment and which he has contracted not to divulge. Peabody ▼. Norfolk, 98 Mass. 452. There is no error in the judgment of the Buperior Court. In this opinion the other Judges concurred. 1. An Indian is not incapable of giving 2. The fact that the lands of a defend- plaint might have been amended if the objection had been made in the lower court. (March 15, 1800.) APPEAL, by defendant from a judgment of the Circuit Court for Giant County in favor of plaintiff in an action to recover the amount alleged to be due on a promissory note. Affirmed. The facts are fully stated in the opinion. Coffey, J., delivered the opinion of the court: This was a suit by the appellee against the appellant based upon a promissory note dated March 7, 1872, and due one day after date. The appellant answered, first admitting the execu set off to the appellant in severalty; that the debt for which the note in suit was executed accrued in 1870; and that his lands so set off to him under the Act of Congress are not liable to levy and sale for the payment of said debt. Prayer that the appellant be enjoined from levying any execution that may issue on a judg ment rendered upon the note in suit upon said land, or from interfering with the same in any manner. To these answers the court sustained a demurrer, and the appellant excepted. A trial by the court resulted in a finding and judgment for appellee, from which this appeal is prosecuted. tion of the note in suit, but averring that the appellee ought not to recover on the same because be is a member of the Miami tribe of Indians; that he was at the date of said note and at the time the debt for which it was given ac crued, to wit, in 1870 and 1871, and has at all times since continued to be, up to the present time, a member of the band of Me ching-gomesia, and has at all times been, remained and resided upon a reservation containing 6,400 acres of land, situate in the Counties of Grant and Wabash, in the State of Indiana, reserved by the Miami Indians in their Treaty of 1838 with the United States to the band of Me-tosmia, which reserve is again referred to in the The assignment of errors calls in question the Treaty of 1840 between the same parties, by correctness of the ruling of the circuit court in which, as amended by the Senate, the United sustaining the demurrer to these answers, as States agreed to convey said land by patent to well as the propriety of the ruling in over uling Me-ching-go-mesia, in trust for his band, who a motion for a new trial. It is earnestly conhave ever since remained upon said lands; that tended by the appellant that the band of Insaid Me ching go-mesia remained the chief of dians of which he is a member are wards of the said band until his death, which occurred in United States government, and that by reason the year 1877; that immediately upon his death thereof each member of said band is under lethe said band, in accordance with their ancient gal disability, and is incapable of making a customs, proceeded to and did select William binding contract. It is admitted by the appelPe-conga, one of said band, as their chief, who lee, as we understand his brief, that the band is still acting as such; that up to the 1st day of to which the appellant belongs is, in a sense, January, 1881, they lived upon their said lands, the ward of the government of the United practicing and adhering to their ancient man- States; but it is denied that any law exists creat ners and customs, holding but little intercourse ing a general legal disability, and that the inwith the whites from choice; that they settled dividual members of said band are not prohibtheir troubles and disputes among themselves, ited from contracting debts, and making such without resorting to the courts of the State; contracts as the one now in suit. As all perthat in their intercourse with each other they sons not under legal disabilities are capable of speak their own language; that the greater part making and entering into binding contracts, it of said tribe cannot speak the English language follows that the note in suit is a binding obliintelligently; that their tribal organization still gation, unless it can be shown that the appelremains unaltered; that they hold their councils lant, at the time of its execution, was under for the same purposes as in former times, and duress or some legal disability, or unless it can are governed by their ancient customs; that be shown that the making of such note was said band did not go into the courts of the State prohibited by some law, or contrary to the pubfor any redress until the year 1881; that they lic policy. In support of his contention, the are a distinct people; that they did not, until appellant cites the cases of Cherokee Nation v. the 1st day of January, 1881, participate in our Georgia, 30 U. S. 5 Pet. 1 [8 L. ed. 25]; Wor civil or political privileges, nor were they incester v. Georgia, 31 U. S. 6 Pet. 515 [8 L. ed. any way regarded as members of our body 483], and Goodell v. Jackson, 20 Jobus. politic, having no right to vote or participate in C93. our elections, or to serve in any official capacity; that they were, in every particular, wards of the United States, and not bound by, or amenable to, the laws of the State of Indiana; that the defendant has at all times since his birth remained with, and participated in the ancient manners, customs and rights of, said band, as one of its members, and fully acted with said band, taking upon himself and exercising no other or different rights or privileges than the band, as a whole, used or exercised, as heretofore stated; that he has never at any time since the 1st day of January, 1881, or since the execution of said note, agreed or contracted or consented to pay said debt, or in any manner acknowledged the same, but has at all times repudiated and refused to pay the same, or any part thereof. The second paragraph of the answer avers, substantially, the same facts as those set out in the first paragraph, with the additional aver ments that the land reserved to the band of Miami Indians, of which the appellant is a member, has been partitioned among the members of said band under an Act of Congress, by means of which certain of said lands have been While it was held in the case of Cherokee Nation v. Georgia, supra, that the Cherokee Nation was a separate State, a distinct political society, separated from others, capable of managing its own affairs and governing itself, it was held, also, that it was not a foreign State, in the sense of the Constitution of the United States, and could not maintain an action as such in the courts of the United States. The case of Worcester v. Georgia, supra, was a prosecution against Worcester, a white missionary, who resided within the territory reserved by treaty with the government of the United States to the Cherokee Nation. The prosecution was instituted under a law of the State of Georgia making it a penal offense to reside in that territory without a license from the governor of the State. It was held that the Cherokee Nation was a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of the State of Georgia could have no force, and which the citizens of Georgia had no right to enter, except with the assent of the Cherokees them. selves, or in conformity with the treaties, and with the Acts of Congress, as the whole inter course with that nation was, by the Constitu- | rendering it illegal, it must be held to be valid tion and laws, vested in the United States. While the learned chancellor in the case of Goodell v. Jackson, 20 Johns. supra, gives a comprehensive review of the Acts of Congress relating to the various tribes of Indians, and the treaties made with them, and reaches the conclusion that they are to be regarded as senarate and distinct nations, subject, however, to the protection of the general government, the case depended wholly upon the statutes of the State of New York; and the questions there adjudicated can have no bearing upon the question now here for determination. Indeed, there would seem to be no doubt that the different Indian tribes residing within the territory of the United States, while they keep up their tribal relations, are to be regarded, in the absence of some Act of Congress upon the subject, as separate and distinct nations. The government has always treated with them as such; an, when engaged in war against the whites, they have never been treated as rebels, subject to the law of treason, but, on the contrary, have always been regarded and treated as separate and independent nations, entitled to the rights of ordinary belligerents, and subject to no other penalties. Acting upon the theory that the Indians, maintaining their tribal relations, residing on reservations secured to them by treaties with the United States government, constitute separate and distinct nations, and following the law as announced in the case of Worcester v. Georgia, it was held by this court, in the case of Me-shing-go-me-sia v. State, 36 Ind. 310, that this State had no power to tax the lands reserved to the tribe to which the appellant belongs. But none of these cases decide that an Indian belonging to a tribe or nation has not the power to make a contract of the kind now before us, and our attention has not been called to any law which prohibits him from making such contract. Very many of the Acts of Congress, as well as the adjudicated cases, proceed upon the theory that an Indian may bind himself by an ordinary executory contract, and may con ract debts. Most, if not all, of the Acts of Congress granting annuities to the Indians provide that such Indians shall not be bound by any contract whereby such annuity is disposed of or pledged before the same is actually paid by the government. By Rev. Stat. U. S. 1878, p. 367, it is provided that no agreement shall be made by any person with any individual Indian, not a citizen of the United States, for the payment or delivery of any money, or other thing of value, in present or prospective, or for the granting or procuring any privilege to him or any other person, in consideration of services for said Indians relative to their lands, or to any claim groving out of, or in reference to, annuities, installments or other moneys, claims, demands or things, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contract or agreement be executed and approved as therein provided. It does not appear that the contract in suit falls within the class of contracts prohibited by this Act of Congress. Unless it ap pears that such contract falls within the provisions of this Statute, or some other statute, and binding. Godfrey v. Scott, 70 Ind. 259. In our opinion, the court did not err in sustaining the demurrer to the first paragraph of the answer. The second paragraph of the answer does not state a defense to any part of the plaintiff's cause of action. The fact that the lands set off to the appellant may not be liable to levy and sale for the payment of the appellee's judgment furnishes no sufficient reason why judgment should not be rendered. The appellee may be able to collect his debt without resort to the land. As there is no pretense that the appellee is threatening to levy upon the land described in the answer, there is no ground for an injunction. Furthermore, the pleading is not a cross-bill seeking affirmative relief, but is an answer. The court did not err in sustaining the demurrer to this answer. The only matter urged under the assignment of error calling in question the action of the court in overruling the motion for a new trial is that the judgment exceeds the amount claimed in the complaint. It is not claimed that the judgment exceeds the amount due on the note, but it is contended that the court erred in rendering judgment for a sum in excess of that covered by the prayer of the complaint. This contention cannot be maintained. The appellee could have amended the prayer of his complaint at any time, and this court will regard the amendment as having been made in the circuit court. Carpenter v. Sheldon, 22 Ind. 259; Webb v. Thompson, 23 Ind. 428. There is no error in the record. James A. LOWMAN, Appt., v. Frederick SHEETS. (....Ind.....) 1. The court may require the jury to return a special verdict at the request of one of the parties to the action, although he has previously requested the court to instruct the jury in writing and has entered upon a discussion of the questions of law to be embraced in such instruction. 2. The Statute prohibiting the making of contracts by parol which are not to be performed within one year has no application to a contract which has been fully performed by one of the parties. NOTE.-Statute of Frauds; contracts not to be performed within one year. A parol contract not relating to land, and not to be performed within the year, is not enforceable. It is not taken out of the Statute by a part performance, as that equitable doctrine applies only to contracts in relation to land. Osborne v. Kimball (Kan.) 21 Pac. Rep. 163; Wolke v. Fleming, 1 West. Rep. 166, 103 Ind. 105. Oral contracts not to be performed within a year the end of three years at a certain price, and also are not enforceable; yet a contract to sell stock at that it may be called at any time before the expiration of three years, is valid although not in writing, because its performance within one year is See also 9 L. R. A. 129; 13 L. R. A. 646; 28 L. R. A. 526; 47 L. R. A. 385. 3. A contract within the Statute of Frauds is not void but merely voidable. 4. Where a number of contracts are made at the same time and as part of the same transaction, some of which are within the Statute of Fraud? and the others not, and they are of such a nature that they can reasonably be considered as separate, the former will be enforced although the latter are avoided. 5. A person's title under a valid contract for the purchase of an interest in brood mares, which is coupled with a voidable contract as to their keeping, will not be affected by the avoidance of the latter contract. 6. Where partnership property is to be kept for the purpose of currying on a particular business and not for sale, neither partner has power to make a sale of the entire property. 7. Declarations as to the ownership of property, made by a person in possession thereof, are admissible in evidence upon an issue as to such ownership as part of the res gesta. (March 22, 1830.) APPEAL by plaintiff from a judgment of the Circuit Court for Benton County in favor of defendant in an action of replevin to recover possession of certain brood mares. Af. firmed. The facts are fully stated in the opinion. Messrs. Wallace, Baird & Chase, for appellant: Under the circumstances of this case Templeton had the power to sell the partnership property, and the appellant, Lowman, acquired a good title by the purchase Kent Com. 44; Story, Partn. § 94; Lock v. Lewis, 124 Mass. 1; Wells v. Mitchell, 1 Ired. L. 484; Nicholas v. Sober, 38 Mich. 678; Chipley v. Keaton, 65 N. C. 534; Stokes 7. Stevens, 40 Cal. 391. Messrs. Edwin P. Hammond, Matthew H. Walker, Daniel Fraser, Isaac H. Phares and William B. Austin, for appellee: When a contract within the Statute of Frauds is partly executed, neither party while the other is not in default, can, except by consent of both, rescind and recover what has been paid or delivered upon it. Swanzey v. Moore, 22 Ill. 63, 74 Am. Dec. 134; Day v. Wilson, 83 Ind. 463; Groves v. Cook, 88 Ind. 169. The sale and delivery of the property by Templeton to Sheets vested good title in the latter. Wood, Stat. Fr. § 235, pp. 431-435; Abbott Draper, 4 Denio, 51: Coughlin v. Knocles, 7 Met, 57; Sims v. Hutchins, 8 Smedes & M. 328; Contracts prohibited by subd. 5 of § 1 of the. Statute of Frauds are not, by part performance, taken out of the Statute. Crabtree v. Wells, 19 Ill. 55. Wolke v. Fleming, 1 West. Rep. 166, 103 Ind. A partner in selling the entirety of the part105; Houghton v. Houghton, 14 Ind 507; Wal-nership property must act within the scope of lace v. Long, 3 West. Rep. 870, 105 Ind. 522; the partnership. Groves v. Cook, 88 Ind. 169; Wood, Stat. Fr. 492; 1 Addison, Cont. § 212. Story, Partn. § 94. Coffey, J., delivered the opinion of the possible. See note to Seddon v. Rosenbaum (Va.) by its terms is not to be performed within one 3 L. R. A. 339. If a contract can be fully performed within one year, on one side, it is not within the Statute of Frands. Thomas v. Armstrong (Va.) 5 L. R. A. 529; Wolke v. Fleming, 1 West. Rep. 166, 103 Ind. 105; Washburn v. Dosch, 68 Wis. 436. The statute does not apply to actions for payment for property delivered and accepted under a promise to pay, upon contracts wholly executed on one side within a year. Durfee v. O'Brien (R. I.) 6 New Eng. Rep. 492. When one party to a verbal contract has fully performed his part of it, the statute affords no defense to the other party. Simmons v. Headlee, 13 Wes'. Rep. 223, 94 Mo. 482. Although a verbal contract to do work, which 7 L. R. A. year, is void, yet if the parties treat it as valid until after a part of the work is done, it cannot then be avoided so as to avoid payment of the reasonable value of the work that has been performed. Keller v. Bley, 15 Or, 429; Baker v. Lauterbach, 10 Cent. Rep. 103, 68 Md. 64; Freeman v. Foss, 5 New Eng. Rep. 302, 145 Mass. 361. A parol contract to serve a company as treasurer for the term of five years for a percentage of the profits, although not enforceable by action, is not void, and, in so far as voluntarily executed by entering upon and continuing in the service, its terms may be referred to and considered in determining the measure of compensation for the service. La Du-King Mfg. Co. v. La Du, 30 Minn. 473, 50 turn a special verdict herein, find the facts to be as follows: About the 8th day of April, 1887, one Leroy Templeton was the absolute owner of the forty mares in controversy in this case, and on that day bargained to the defendant, Sheets, a onehalf interest in said mares, at and for the price of $45 for each of said mares, said mares in said bargain being valued at $90 each. By the terms of said sale said defendant was to have possession and care and control of said mares, and was to keep the same until March 1, 1891. Said Templeton was to furnish pasture for the same until October 1, 1887, after which the feed for said animals was to be furnished at the equal expense of said Templeton and said defendant. Said defendant, from the time of making said bargain, was to look after and have the control and possession of said mares in the pasture furnished by said Templeton, up to October 1, 1887, and was thereafter to continue to feed and take care of said animals and to have the possession of the same. Said Sheets was to pay said Templeton interest at 7 per cent on the purchase price of said mares from October 1, 1887, and was to have the option to pay said purchase money when he saw proper on or before March 1, 1891. On March 1, 1891, the interest of said parties in said mares, and the proceeds thereof, was to be equal, after accounting to each party for his portion of the expense, and also after payment to Templeton by the defendant of the purchase price for the one-half interest thereof, with interest, if the same had not been previously paid. ant, without objection or resistance, took said mares from plaintiff's pasture where plaintiff had put them, as aforesaid, and put them in his, said defendant's, own pasture, on Fowler and Van Natta's farm in said county, the same being about four miles from the pasture where said animals were when taken by the plaintiff as aforesaid, and about the same distance from the plaintiff's said pasture, from which they were taken by the defendant as aforesaid. While said animals were in the possession of the defendant as aforesaid, said plaintiff, on the 22d day of June, 1887, before the commencement of this action, demanded said property of said defendant, but said defendant refused to deliver him the possession thereof. Said plaintiff on the same day commenced this action, and upon a writ of replevin herein issued and upon the plaintiff's undertaking, approved by the sheriff, said sheriff, on said writ, delivered said property to the plaintiff, who, by virtue of said delivery of possession, has since retained and is now in the possession of said property. Said property is now of the aggregate value of $3,400. At the same time of making the sale of a half interest in said mares to said Sheets, said defendant and said Templeton entered into a bargain whereby said Templeton was to lease to said Sheets 800 acres of real estate, owned by said Templeton, in said county, for the term of three years, to commence on the 1st day of March, 1888. Said lands were the north balf of each of two adjoining sections owned by said Templeton, one lying immediately east of the other, and the south-west quarter of said east section pur--the precise location of said lands so leased was well understood and agreed to by the parties at the time of making said bargain. By the terms of said bargain, said mares were to be kept exclusively for breeding poses, and were not to be worked or sold, broke or traded by either party prior to March 1, 1891, except by consent. Said bargain was not in writing. Pursuant to said contract, said Templeton, on the same day that it was made, to wit, about April 8, 1887, delivered possession of said mares to said Sheets, who remained in the possession and care of the same, having the same in a pasture furnished by said Templeton, in said county, until the 16th day of June, 1887, when said Templeton and said plaintiff, with out the knowledge or consent of said Sheets, took said mares from said pasture, and placed them in a pasture of the plaintiff, about half a mile dist nt from where they were taken. The possession of said property was taken by said Lowman, under a sale made to him by said Templeton, on the 16th day of June, 1887, on which day said Templeton sold said property to said Lowman for the sum of $3,400 to be paid by said Lowman in six months after said date, which was evidenced by a promissory note, executed by plaintiff to Templeton, payable in a bank in this State, which said note is still held by said Templeton, and is still wholly unpaid. Said Sheets had no notice, knowledge or information of said sale by Templeton to the plaintiff until after the same was made, and the possession of said property taken by the plaintiff as aforesaid; nor did he ever afterwards consent to the same. On the 22d day of June, 1887, said defend By the terms of said bargain said land was to be cultivated in corn, oats, pasture and meadow, as said Sheets might determine, and as rent for the same said Sheets was to deliver to said Templeton, on said premises, one third of the corn raised thereon in the crib, one third of the oats in the bin and three fifths of the hay in the stack, and to pay $2.50 per acie for all the pasture except thirty acres, for which no charge was to be made. Said Templeton was, before March 1, 1898, to move a house from a designated part of said premises to another designated part thereof, and to put the same in a tenantable condition, at an expense of not exceeding $300. At the same time that Templeton sold a balf interest in said mares as aforesaid, and at the same time that he leased said defendant said real estate as aforesaid, said Templeton and defendant entered into a bargain whereby it was agreed by and between them that such portions of the hay and grain as should be raised upon said leased premises by said de fendant, as the parties should determine, should be fed to stock, which stock was to be purchased from year to year by said parties, with money to be borrowed by them jointly, aud to be taken care of by said defendant on said premises, the expense of feeding the same to be borne by Templeton and the defendant equally, and the net profits thereof to be divided between them equally. |