author:
Tompkins, J.
     Wash, J.

text:
    Marguerite v. Chouteau.
    Indians {alien captive in war, prior to the year 1709, by the French, and held or sold as slaves, in the province of Loui-iana, while the same was held by the French-held to he lawful slaves; and if teníales, their descendants likewise. (Note a.)
    IN ERROR from the St. Louis Circuit Court.
   Opinion of

Tompkins, J.

This is an action of trespass, assault and battery, and false imprisonment, brought by the appellant against the appellee, to recover her freedom.

On the trial, the following facts appeared in evidence: Madame Chauvin deposed, that Marguerite, the plaintiff, appellant here, was born in the year 1778; that the name of her mother was Marie Jean, sometimes called Marie Scipion, who belonged to and lived with Joseph Tayon, the deponent’s father; that the mother of the appellant was in possession of deponent’s father from the time of his marriage until January, 1801, when she was removed sick from the house of Mr. Chouteau (where Tayon then lived) to the deponent’s house, where she died in June, 1802, aged about 60 years; that the deponent had heard from her father and molher, that Marie Scipion was bought by deponent’s grand mother, and given to her mother; that she had heard from the same, that Marie Scipion was the daughter of an Indian woman captured by the French near Natchez, and brought to Fort Chartres, where she was sold as a slave; that a negro man named Scipion was supposed to be the father of Marie Scipion; that the deponent has heard this from others than her father and mother 5 (72) that the deponent’s father had an Indian woman named Marie Louise, who had two male children, Akin and Julien, who ran away and passed for freemen at the-commencement-of the Spanish Government; that they went to New Orleans after the publication of an ordinance of O’Reilly, the Spanish Governor of Louisiana, “declaring all the Indian slaves, then in the province qf Louisiana, free at the death of their master, and those horn after the publication, free at their birth, prohibiting any sales by any persons then in possession of such slaves ; that the deponent read the ordidance to her father, and conversed with him on the risk he ran of losing his Indian slaves, and that she remembers he sold one of these slaves, and was compelled to taire it back and hush it up, lest he should be fined under the ordinance ; that she remembered to have heard her father say, after the publication of the ordinance, that Marie Scipion and her children would be free at his death, in consequence of that ordinance.

Jean B. Reviere’s deposition contained about the same account of the descent of Marie Scipion. He knew her at Fort Chartres, when she was about 18 or 20 years old ; had heard his deceased father say, that the mother of Marie Scipion was of the Natchez tribe of Indians; that he had heard Joseph Tayon, in his life time say, that Marie Scipion was given to him by one Guyon, on condition that she and her children should be free at the time of the death of Tayon and wife. This witness also speaks of the publication of O’Reilly’s proclamation, with this difference, that it was thereby declared that all Indians then held in slavery, should ’b'e forthwith set at iib-1 erty, and he allowed to remain in the settlement's, or to return .to their own country, at their own option ; he further states, that many Indians, then held in slavery, were set at liberty, in" pursuance of this proclamation. He also deposes, that two sons of Marie Louise left the service of Joseph Tayon, and went to the lower country. He also states, that he understood Joseph Tayon to say, that Marie Scipion liyed in his family of her own free will and consent, because she was well treated dnd chose to remain with him, and that the said Marie Scipion and her children were at liberty to leave him at any time they pleased, but if they chosé to remain till his death, they should never serve any body.

The deposition of Marguerite Reviere states, that Marie Scipion was descended from an Indian woman of the Natchez tribe ; that it was the public opinion that she and her children could not be slaves, being of Indian blood. She,also testifies as to the publication of O’Reilly’s proclamation, and says, that Indians before held in slavery, were immediately set free.

(73) Francis Dorlac’s deposition gives the same account of Marie Scipion’s descent; mentions the publication of O’Reilly’s proclamation in terms equivalent to those used by the two last witnesses; that slaves of several persons were set at liberty under that proclamation, immediately after its publication.

Several other witnesses were examined, who told nothing more than had before been given in evidence.

John B. C. Lucas, a witness examined by the plaintiff testified, that about twenty years ago, the witness being then a Judge of the Superior Court of the Territory of Missouri, there was a suit in that Court betwixt the children of Marie Scipion and Joseph Tayon, that the present plaintiff Marguerite was probably one of the parties ; that in this suit, the pedigree of the defendants in that Court, came directly in question. The question then was, whethev the then defendants and others were descended in the maternal line from an Indian woman. The witness then heard Antoine Reviere state, that Marie Seipion’s mother was an Indian woman of the Natchez tribe; that she was brought to Fort Chartres after the defeat of the Natchez Indians by the French, about the time of the massacre as it was called) that the father of Marie Scipion was a negro man ; that when the mother of Marie Scipion was brought to Fort Chartres, he was a very young man, too young to go to hunt or to war; that Pierre 0. Becket, another witness then examined, gave a similar account of the descent of Marie Scipion, and that he saw her in the situation of a servant in the kitchen of Mr. Tayon, but knew nothing of her freedom or slavery. Madame Cochon, a witness, who testified on that trial on the part of Tayon, stated, that Marie Scipion was the daughter of a negro woman.

Objections were made by the defendant in the Circuit Court (appellee here) to reading to the jury those parts of depositions of Madame Chauvin, of Jean B. Reviere and of Dodier, which relate to the publication of O’Reilly’s proclamation, and they were sustained by the Court.

The following is so much of the defendant’s testimony, as I think material to be noticed. Sebastian Pratte deposed, that in 1756, or 1757, he went to Fort Chartres in Illinois, and lived in the family of Joseph Tayon, above mentioned : that in the first year of his residence with Tayon, he observed in the family a negro woman named Mary, an Indian woman called Marie Louise with her two children, and a girl called Scipion, about ten or twelve years of age, treated and well known as a slave; that he (74) knew her in Tayon’s possession for several years after his removal to St. Louis ; that he did not know the mother of Scipion ; that there were at Fort Chartres, and elsewhere through the country, a great many Indian slaves and but few blacks; that the Indians were universally acknowledged as slaves, and frequently sold as such before the Governor ; that he himself sold one to the Commandant; that the Commandant he speaks of, was the English Commandant at Kaskaskia ; that from his belief of the character of Mr. Tayon, he is certain he would not have sold a person as a slave who was not so ; that a majority of the Indians held as slaves, were brought down the Missouri by the traders, and were of different nations ; that there were many Indian slaves in St. Louis after its first establishment, and but few blacks.

The counsel for the plaintiff objected to the reading of those parts of the deposition which relate to the existence of Indian slavery in Illinois and Louisiana, and to the number of Indian and black slaves; which objection was also overruled by the Court

The deposition of Auguste Chouteau stated, that the deponent had long known Marie Scipion ; always understood her to be the daughter of a negro woman, slave to Mr. Guyon, which Mr. Guyon gave to his relation; that at the arrival of the Spanish Government” he heard there were many slaves of Indian blood, and after (“often”) of the mother’s side.

The plaintiff objected to reading such parts of said deposition as relates to the number of Indian slaves in the country, and to the giving of Marie Scipion to Tayon, by Guyon, and the Court overruled the objection.

The deposition of Madame Dubrieul stated, that Marie Scipion was of negro blood; that she was the mother of Marguerite; and that she knew an old Indian woman named Marie Louise, who remained a slave to Tayon till the Spanish Goverment declared her Tree; that many Indian slaves remained with their masters after they were so declared. Two other depositions read by the defendant in the Circuit Court contain no new matter.

The plaintiff then prayed the Court to instruct the jury,

First. That if the jury find from the evidence that the ancestor of the plaintiff, in the maternal line, was an Indian woman, they must find for the plaintiff.

. Second. That if the maternal ancestor of the plaintiff was taken as a prisoner in war, she did not thereby becoihe a slave.

(75) That heresay evidence is not competent to prove the fact, that the maternal ancestor of the plaintiff was taken a prisoner of war.

Fourth. That evidence of maternal ancestor of the plaintiff being held as a slave during the French Government of Louisiana, does not establish the legality of the slavery in which the plaintiff may be held.

Fifth. That no practice of enslaving Indians during the time that Louisiana belonged to the French, is evidence that such practice was sanctioned by law.

Sixth. That a prisoner of war cannot be reduced to slavery, unless under such circumstances as would authorize putting him to death, and that unless evidence of such circumstances is given to the jury, they must consider such slavery, under the pretence of the ancestor of the plaintiff being taken a prisoner in war, as illegal.

Seventh. That the right to hold a prisoner of war in slavery continues no longer than the political necessity exists for such enslaving, and that when such necessity ceases, the prisoner can no longer be held in slavery.

All of which instructions the Court refused to give.

The defendant then asked of the Court the following instructions:

First. If the jury find from the evidence that the maternal grand mother of the plaintiff was an Indian woman of the Natchez nation, taken captive in war by the French, and that she was held and sold as a slave in the province of Louisiana while-the same was held by the French, and prior to the year 1769 — she and her descendants ought to be considered as being lawful slaves.
- Second. If the jury find from the evidence that the maternal grand'mother of the-plaintiff was an Indian woman taken captive in war by the French, and was held or sold as a slave in the province of Louisiana while the same was held by the French,, and prior to the year 1769, she and her descendants ought to be considered by the jury as being lawfully slaves.
Third. If the jury find from the evidence that the maternal grand mother of the plaintiff was an Indian woman taken captive in war by the French, and was held and sold as a slave in the province of Louisiana while the same was held by the French, and prior to the year 1769, she and her descendants ought to be deemed by the jury as being lawfully slaves.
Fourth. If the jury find from the evidence that the maternal grand mother of the (76) plaintiff was an Indian woman taken captive in war, and held as a slave in the province of Louisiana while the same was held by the French, and prior to the year 1769j she and her descendants ought to be taken by the jury to have been lawfully slaves.
Fifth. If the jury find from the evidence that the maternal grand mother of the plaintiff was a negro or Indian woman, and that she was held as a slave in the pro- ' vince of Louisiana while the same was held by the French, and prior to the year 1769, she and her descendants ought to be taken by the jury to have been lawfully slaves.
Sixth. That the declaration of Joseph Tayon, as testified to by .John B. Reviere in his deposition, do not, in law, operate to emancipate said Marie Scipioa or any of her children, nor is the plaintiff entitled to her freedom in consequence of said declarations/
Seventh. That Indians taken in war might lawfully be held as slaves in the province of Louisiana while the same was held by the French, and prior to the year 1769.
Eighth. .That Indians might lawfully be reduced to, and held in slavery in the pro? vince of Louisiana while the same was held by the French, and prior to the year 1769.

All of which instructions the Court gave.

It is assigned for error: First. That the Circuit Court refused to give each and all of the instructions prayed for by said Marguerite. Second. That the Circuit Court gave the jury each and all of the instructions asked for by Chouteau. Third. That the Circuit Court rejected the evidence of O’Reilly’s proclamation contained in the deposition of Madame Chauvin and others. Fourth. That the Circuit Court admitted the evidence contained in the deposition of Pratte of many Indians being held in slavery in Louisiana, and admitted other evidence objected to by said Marguerite.

On the part of the plaintiff it is contended, first, that all Indians unquestionably are at least prima facie free, and 1 Wash. 123; Hen. & Man. 133; and 2 Hen. & Mun. 157; and Vaughan v. Phebe, a Tennessee case, are relied on.

Raynal, Brackenridge, and Marshall’s life of Wasnington, arc cited, to show that the French Government treated with the Indian nations bordering on their colonies in North America as independent nations, contending that they stood in the same relation to the French colonies, that the neighboring tribes did to the British colonies; while on the other hand, all negroes imported into North America were brought in as slaves; thence it is concluded, that in Louisiana, as in the late British colonies, negroes ought to be held prima facie slaves, and Indians prima facie free.

(77) If Indians were only prima facie free under the French Government in Louisiana, then it is contended that hearsay evidence is not sufficient to prove that the plaintiff’s maternal ancestor was taken a prisoner of war; 7 Crunch 290, is relied on.

Third. It is contended that even though it were, proved that the plaintiff was a prisoner of war, yet still, as the French regarded Indians as independent nations, the law of nations applies to them, and that they could not, agreeably to that law, be held in slavery no longer than the necessity for so holding them existed ; Vattel is cited — the pages of Vattel and Raynal referred to, contain no such matter in the editions which have fallen into my hands.

Mr. Spalding, on the part of the appellee, contends—

First. That slavery of Indians was legal under the French Government of Louisiana, because, first, there is no distinction naturally between (f‘ nations ” perhaps,) to entitle some to the exemption from the possibility of being made slaves, and in all or most of the English colonies in early times, the same state of facts as has appeared in •this case, would, had it existed with respect to an African, have unquestionably held him in slavery. If, in those colonies, the fact that negroes were held as slaves, and bought and sold as such in the absence of all written law, was considered as proof of the law, as it seems to have been held, why should not the same principle apply to Indians ? and he cites 3 Martin 285; 1 Tucker’s Bl. 2d part, app. 45, and 1 Dallas 167.

Second. The fact, he continues, whether slavery of negroes or Indians existed lawfully in French Louisiana does not depend on .the consent of many nations to make staves of them; it depends on the municipal law of that province. That law can? not be presumed to have been written, for slavery has not any where commenced by written law. Whether Indians were slaves by law, therefore, is to be gathered from facts and circumstances, decisions of Courts, &c. Indians were generally held as slaves in Louisiana, and treated.as such. A whole tribe, to-wit: the Natchez, were captured and held and sold as slaves. There were a great many Indian slaves at the time the Spanish authorities took possession of the country. In the margin here are cited the depositions : History of Louisiana' by Le Page Du Pratz, 258, 326; Raynal’s Indies, vol. 8, 143- ,

-Third. The proclamation of O’Reilly, moaning the proclamation made in 1769, forbidding Indians to be held in slavery for the future, became a law of the Iapd, and strongly fixes the legality of Indian’ slavery. The Court being bound ex-officio to* (78) know the law of the land, will inform itself whether such proclamation ever existed, what was its tenor, &c. j and it has a right.to look info the excluded parts of the depositions in this case, where will be found’ ample proof of the promulgation of the proclamation, the tenor of which has, however, been misconceived by the witnesses, through ignorance and length of lime. As evidence of the unwritten law of the land upon the subject of Indian slavery, the cases cited in Marlin’s Reports of the-decisions of the Baron de Carondelet have great weight, being the judicial decisions of the highest authority in the province.

Fourth. If Indian slavery was legal under the French Government of Louisiana,, the presumption unquestionably arises now as it did then, that an Indian whose ma-> ternal ancestor has been held as a slave till death, is a slave; he here cites from 3-Martin, in the case of Seville ¶. Chretien, in which the Court decided that the freedom of Indians held in slavery under the French Government in Louisiana, was not acquired under the Spanish Government,' and that Indian slavery was lawful under the French Government there. The counsel for the appellee then contends that those parts of the plaintiff’s deposition which relate to the publication, contents and effects of O’Reilly’s proclamation, were properly excluded from the-jury by the Circuit Court, that no foundation was laid for the admission of parol evidence to prove the contents of a written instrument. Furthermore, that the proclamation, if such an one had ever been made, became the law, and the Courts of this State are bound ex-officio to know its contents and ¡neaping; and it ivas (“not”) competent to prove by witnesses to the jury what the Court was bound to know, and to declare to them-judicially as a* part of the law of the case and of the country at a former period. Rut the record states (hat those declarations were excluded which relate to, or speak of, or concerning the publication, contents and effects of a proclamation, &c. Now the effects of the law (for that proclamation was law) cannot be adduced to prove to a jury what that law was, particularly where it Was written law, and was not produced ; but he contends that the plaintiff’s objections to the depositions of Pratte apd Chouteau, before mentioned, were not good, because the existence defacto of Indian slavery, and its extent in Louisiana, is evidence in this case for the purposed showing the strength of the presumption to be raised against .the freedom of Marguerite. The more Indians there were legally held in slavery, the greater the probability that Marguerite’s ancestor was one of them. Again the defendant had (79) the same right to read this part of said depositions; that he had to read an. authority in law to the jury. The sixth instruction asked by the defendant and given, by the Court, raises the question whether the verbal declaration of the owner of a? slave could emancipate such slave under the Spanish Government.”' The Partidas• is cited to show that emancipation was required to be performed in a more ceremonious way than by our laws at present. The points arising in this case, and which seem to me necessary to be decided on, are:

First. Whether the Court erred in rejecting the evidence of the publication, contents and effects of the proclamation of O'Reilly, the Spanish Governor, as testified by the appellant’s witnesses. '
Second. Whether the Court erred in permitting to go to the jury, those parts of the depositions of Sebastian Pratte and Auguste Chouteau, that mention the number of Indian slaves held in Illinois and Louisiana, and of such parts of the deposition of said Pratte as mention the number of Negroes in said country, and of the sale of Indian slaves.
Third. Whether tho Court erred in permitting to go to the jury, that part of the deposition of Auguste Chouteau, which mentions that he had heard that Marie Scipion was a gift from Guyon to Tayon.
.Fourth. Whether Indians might be lawfully reduced to slavery under the French Government of Louisiana.
Fifth. Whether Indians of the Natchez tribe might lawfully be reduced to slavery under the French Government of Louisiana.
Sixth. Whether the declarations of Tayon, as testified to by J. B. Reviere, operate to emancipate Marie Scipion. ■ -
Seventh. Whether, under the French Government in Louisiana, negrbes might lawfully he held in slavery.

First. The evidence of the publication, contents and effects of O’Reilly’s proclamation, was, I think, properly rejected. If we consider it as a matter of fact, no foundation, as was observed, has been laid for proving the contents of a written instrument. If we regard it as law, it was not a subject matter, proper to be contained in a deposition, for the ears of a jury.

Second. The evidence of Pratte and Chouteau, concerning the existence and extent of Indian slavery in Louisiana, regarded as a matter of fact, was, I think, wholly immaterial; the issue here is, whether Marguerite be free or a slave; she cannot be supposed to be prepared to contend whether other Indians were lawfully held in (80) slavery, and her case is not to be prejudiced by theirs. But it is contended that the defendant has the same right to read this part of the depositions, that he had to read an authority in law to the jury. Now the existence and extent of Indian slavery (if that slavery were lawful) would rather he the effect of f/ie law than the law itself; and the defendant’s counsel has before said that the effects of the law cannot be adduced to prove to a jury what the law is, particularly when it is a written law, I am at a loss to see why the law, whether written or unwritten, comes before the jury in the form of a deposition. Slacksione, in the first volume of his Commentaries, page 63, says, “ with us, at present, the monuments and evidences of our legal' customs are contained in the records of the several Courts of justice, in hooks of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the highest times of antiquity.”

In all civilized countries, Courts, I think, ought to require that'the person who tells them of the existence of a law, should be in a situation in life to know what is the law. It is not pretended that the witnesses were learned sages of the law, and if they had been such, the course I think would have been to introduce them into Court, to prove the law to the Court and not to the jury. But it is evident the oh,; ject of the appellee is to induce the Court to presume a law from the existence of certain facts, and with these facts, in my opinion, the jury have nothing to do 5 therefore, I think, the testimony should have been rejected.

Third. Whether Marie Scipion were given by Guyon, if material in this case, ought to have been proved by other evidence than hearsay.

Fourth. In order to establish this point, the appellee contends that there is naturally no distinction among the nations of the world, to entitle some to exemption from the possibility of being made slaves, and that in all or most of the English colonies, in early times, the same state of facts as has appeared in this case in relation to an Indian, would, had it existed with respect to an African, have unquestionably held him in slavery. If in these colonies, he continues, the fact that negroes were held as slaves, and bought and sold as such, in the absence of all written law, was considered as a proof of the law, why should not the same principle apply to Indians. Here he cites Martin’s Reports, vol. 3, p. 285 ; 1st vol. Tucker’s Bl. p. 2d, page 43 and 46 of the app.; 1 Dallas, 167. Judge Tucker, in the 45th page cited, says that negroes were first introduced in Virginia in 1620 ; in the 46th, (81) that an act was passed prohibiting Indians or negroes manumitted, &.C., from purchasing Christian slaves. From this act, he says, it is evident that Indians had before that time been made slaves, as well as negroes, though we have no traces of the original act by which they were reduced to that condition ; strongly insinuating, I think, rather that the act was lost than that none had ever been passed. In Virginia, where a statute authorizing the reducing of Indians to slavery existed, still Indians were prima facie free, and negroes were prima facie slaves: see 1 Hen. &. Mun. 133, Hudgins v. Wrights. For this distinction there is a very good reason. Negroes were imported into Virginia and sold as slaves, under the authority of the Crown of England, from a very early period till the year 1778, at which time Virginia became independent. The enslaving of Indians was authorized but for a very short time, and the Courts required the persons claiming property in an Indian, to proye.that such Indian was enslaved agreeably to law. The same author quoted hy the appellee,tells us in a few pages after, that “it is easy to trace the desire of the Legislature to put a stop to the further importation of slaves, and had not this desire been uniformly opposed on the part of the Crown, it is highly probable that event \vould have taken effect at a much earlier period than it did.” The Portuguese, the Spaniards, the Hollanders, the English, the French, and Danes, all carried on the slave trade in Africa. For this purpose their respective governments established military posts and incorporated companies: see Raynal, book 11, chap. 20; and yet we are told there is' no legislative act to authorize negro slavery. It might be asked whether any legislative act were necessary to authorize the sovereign power of a State to do any act it pleases. The King of France, at least, could not think it necessary to make a law to authorize himself to carry on the slave trade; for this he literally did by incorporating companies to do so, inasmuch as the company was his agent, supported by his arms. Raynal says, L’etablissement qu’ills formerent a cette epoque dans le Senega], dut en 1678 qnelqu’ accraisement a la terreur qu’ im~ primaient alora les armes victorieuses de Louis XIV; (the establishment about that time made in Senegal, owed something in 1678 to the terror then impressed by the victorious areas of Louis XIV.) We have the authority of Judge Tucker, that the Assembly of Virginia was restrained by the Crown of England from prohibiting the (82) importation of African slaves. "What power then could he expected to resist the King of France in Louisiana ?

It is in my opinion quite immaterial whether the subjects of the European powers-first began to trade'in slaves to Africa, and were afterwards supported by their respective sovereigns, or whether the sovereigns first authorized the trade. The assent of the government is clearly given to the African slave trade, while no such commerce in Indian slaves is authorized by any act of theirs. The implied assent relied on by the appellee, amounts to nothing; as well might it be pretended one hundred years hence, that murder was at this present time lawful in Missouri, because some persons had killed others, and had not been punished for the act. Governments do not impliedly assent to a violation of the laws of nature. We know the laws of a polished nation, such as France, from her statutes, the decisions of her Courts of Justice, and the acts of the Executive power. But the French Government, we are told, sent three hundred Indians of the Natchez tribe, as slaves, into St. Domingo. This only proves the will of the French Government to enslave those three hundred Indians; and the fact of their being sent off the continent, appears to me to be strong evidence that the Government never had been accustomed to enslave Indians in the province of Louisiana.

Du Pratz tells us that the Natchez had been very useful and friendly to the French, The author himself had lived at the post, and gives a very particular account of the war and capture of that tibe. Chepart, he tells us, had been removed from the command of the post, for acts of injustice done by him. Perier arriving at New Orleans shortly after, as Commandant General of Louisiana, suffered himself to be imposed on by CheparPs plausible mariners, and restored him to his command, which, says the author, never would have been done had Perier known him well, “ L’integrete de ce commandant general lui aurait ete un obstacle insurmountable.” Chepart, restored to his post, commenced a new course of oppression and tyranny. The Natchez, driven to desperation, determined to exterminate the French ; very few of those at the post escaped being, either made prisoners or butchered. Many other outrages were committed. The French under Loubois, marched against them and bedeiged them in their town ; the Natchez, hard pressed, sought and obtained conditions: they surrendered the prisoners they had made, and in the night made their escape and recommenced hostilities in the most outrageous manner. The author observes that the (83) Natchez at the time of their escape, had good reason to fear the French on account of the black act they had done, but that they feared still more the Chatkas ; they did not doubt that the French would excuse them for the muider of their countrymen, in consideration of the tyranny of the French commandant: but they feared the accustomed insolence of the Chatkas, who would have stripped them naked, and insulted them even in the presence of the French. And it was certainly this fear which determined them to escape during the night. Some time after, Perier marched in person against them and beseiged them. The Natchez again demanded a capitulation ; hut they started difficulties, which occasioned messages to be sent (“des allees etdes venues,”) till night, which they waited to profit by it, by demanding till the next day to draw up the articles of capitulation. The night was allowed them ; but they were so watched that they could not escape, as in the war of Loubois; they, however, made the attempt, but failed, a small number escaped and retired to the Tchickachas. The rest surrendered at discretion. They were sent to the Island of St. Domingo, says the author, that the nation might be extinct in the colony. From this account of this affair, taken from the author cited by the appellee, X am inclined to think that the French considered themselves justified by the circumstances of the case, in reducing the Natchez to slavery. It was evidently a war of extermination on the part of the Natchez. The allied powers of Europe lately confined Napoleon to the Island of St. Helena, because he was, as they affected to believe, dangerous to their government, and yet it never was contended that each Englishman had a right to imprison in his own house a Frenchman, because his government had concurred in imprisoning the Emperor of the French, in St. Helena.

We may further observe, that Perier did not seem inclined to treat them with so much harshness, till they had again made an attempt to escape, after asking and obtaining a capitulation. For such conduct as that of the Natchez towards the French, a civilized nation might, perhaps, in modern times, have been refused quaitor. Vatlel says, B. 3, Cap. 8, sec. 152, that prisoners of war may be made slaves in cases which give a right to kill them. But this disgrace of mankind,” he afterwards adds, “is happily extinct in Europe.” Another page of Du Pratz was referred to, erroneously I suppose, as the author says nothing there, or in any other part of that (84) volume, about Indians enslaved by the French. This book is rarely found, and the other volumes have not been within my power.

I cannot notice the passage referred to in Raynal, because the edition used by the counsel has not been given to me, and that in my possession must be differently paged. I have carefully read over Raynal’s account of the establishment of the French on the continent of North America, and have been able to find nothing to justify a belief, that the French Government ever reduced Indians to slavery, either in Canada or in Louisiana. In chap. 8, of book 15, the author gives the account of the capturo of the Iroquois chiefs, and speaks of it in these terms. Denonville (Governor oí' Canada,) disbonera le nom Francois diez les savages par une infame perfidie.” (Denonville dishonored the French name by an infamous perfidy.) The Chiefs wore sent to the galleys, but wc are not told by the author any more about them ; they were probably restored to their country, for soon after we find Denonville constrained to bog a peace of the Iroquois, and using as a mediator the same person, (L’Ambreville, the jesuit missionary to the Iroquois,) whom he had before used as the unconscious instrument, to decoy the unsuspecting chiefs to the pretended conference where they were captured. Had a French officer commanding a post on the African coast, established to carry on the slave trade, decoyed in this manner the chiefs of a tribe of negroes, and after capturing them, sent them as slaves to be sold in the French W. I. Islands, the author would hardly have told us that the French name had been dishonored amongst the negroes by an infamous perfidy, inasmuch as he would in such case have done nothing more, than what the companies incorporated and supported by his country were doing whenever they had the power. But did I want any thing to confirm me in the opinion, that the French Government never tolerated Indian slavery in Louisiana, I would resort to the proclamation of O’Reilly so much relied on by the appellee, and I would suppose, too, with the counsel, (hat its tenor had been misconceived by the witnesses through ignorance and length of time.” In the copy of the reported case furnished me, I find these words: “Governor O’Reilly, 1769, on taking possession of the colony, discovered that a considerable number of Indians were held in slavery by the French colonists. This he declared by a proclamation to he contrary to the wise and pious laws of Spain, but by (85) the same instrument he cohfirmed the inhabitants in the possession of such In-, dian slaves, until the pleasure of the King in this respect could be known.”

Here,” says the report, is then a recognition of the rights of possessors to hold their Indian slaves, until the legislative will of the monarch should deprive them of it.” We are given here not an extract, but the import of this proclamation, In the same reported case we are told, that it is a principle of the law of nations, that in cases of the cession of any part of the dominions of one sovereign power to another, the inhabitants of the part ceded, retain their municipal regulations until they are abrogated by some act of the new sovereign.” This principle of the law of na-, tions, then, is adopted by the laws of all civilized nations, and becomes a part (we may say) of their municipal law. Even charity would induce us to believe that O’Reilly knew this, and consequently, also, that he must have been able to draw this conclusion, that if by the laws of Trance, previous to 1769, a subject of France residing in the province of Louisiana, had a right to hold Indians in slavery, he had also, after the year 1769, under the Government of Spain, a right to hold his Indian slave under this principle of the law of nations; and that this being no violation of the wise and pious laws of Spain, the inhabitants stood in no need of O’Reilly’s permission to hold their Indian slaves. I conclude, then, that O’Reilly well knew that by the laws of France, Indians were not allowed to be reduced to slavery in Louisiana ; thence, under the Spanish rule, the subject holding an Indian slave was said to do an act contrary to the laws of Spain. This proclamation, we are told, is a law I do not understand that O’Reilly had power to make laws, and he certainly does not here pretend to make one, he only pretends to suspend the effects of a law, and this is called a recognition of the right of the possessors to hold their Indian slaves, until the legislative will of the monarch should deprive them of it; this (it is said) never did happen : I say it had already happened. The law is the will and only known will of the King of Spain; at all events, the Courts of this .State now succeed to those of Spain, and if O’Reilly had the power, (which I by no means concede,) to suspend the effects of a law, that law is now revived. If the party had rights under the French Government, those rights continue under each change of government, and he can now prosecute them as he could have done under the French Government. In conformity with O’Reilly’s opinion,” we are told, is a decree of the Baron de Carondelet, twenty-five years after, by which he ordered two Indians, (86) Alexis and David, to return to and abide with their owners, until the royal will was expressed to the contrary.” These are not decisions, they are denials of justice for which there might have been political reasons to excuse before his superior, an officer vested with the supreme executive and judicial power of the province. To give this decision, or rather this order of Carondelet, the character of a judgment, he ought to have said whether the Indians were slaves or not; then they would have been entitled to their appeal to the supreme judicial power; it might further be added that even the Natchez, so jealous of their liberty, never once complained that the French made personal slaves of them. Political slavery was all they dreaded. When the Sun of the White Apple assembled his council, to deliberate on the means of delivering themselves from Chepart’s tyranny, one of the ancient chiefs, in a speech of some length, enumerated the evils they had suffered from the French; among which were the corruption of manners, and the encroachment of the French upon their political rights, .and then indignantly observes, “ that the French, when they get sufficient strength, ■will soon begin to treat them as they do their black, slaveshe also complained of the fondness of the young people for the French merchandize, and concludes by advising that the neighboring tribes should be invited, to a league; that these tribes should be informed that the French being the stronger in the neighborhood of the Natchez, would first oppress them, and as they acquired strength, would extend their acts of oppression to the other tribes.

Du Pratz is very perlicular in enumerating the prisoners restored by the Natchez to Loubois, at the capitulation before mentioned. M. de Loubois, (he says,) assured the agent of the Natchez, ti.at he promised them peace as he demanded it in the name of the whole nation ; but he granted it to them only on the condition, that they should restore not only the French women and children, but also the French men who were in the fort, and all the negro men and negro women, the negro boys and negro girls, which they had taken from the French. (M. de Loubois l’asura qu’il leur promittaíet la paix commie il la demandait au nom de toute la nation ; mais qu’il ne la leur accordait quauft conditions qu’ils rendraient non seulement les femmes et les enfans Francais, ma's aussi )e Francais qui etaient au fort, et tous le tiegres, negresses, negrillons, et negrittes qu’ils ayaient pris aux Francais.) Not one Indian slave is de^87) manded. Had there been any, Loubois had the will and the power to enforce restoration.

I have shown that the different European powers actively engaged in the African slave trade; that for the purpose they established military posts and incorporated companies; that England enforced the slave trade in Virginia; and I have shown that even in Virginia, where a statute had authorized Indian slavery, the Courts held that Indians wore prima facie free. The case of Pallas and others v. Hill, in 2 Hen. & Mun., shows that after the lapse of more than an hundred years, Indians have in that State sued for and obtained their freedom. In this African slave trade, I have shown that France also engaged. Du Pratz, in the volume before quoted, page 319, says that after the cession of the colony by the company fo the King of France, he continued the management of the plantation then, viz: 1730, belonging to the King, and received pay for the negroes sold by the company to the inhabitants. I might pursue the same author through one hundred pages of his volume, and show M. Bourgmont eagerly engaged in making peace between the Padoucas and other tribes in alliance with the French, in order to remove all obstacles to the fur trade with those nations. I might dwell on the flattering language he addresses to them, and the desire which he assures them the King of France Ins, that they should live in peace and friendship with each other, and with the French. Who are the white men, he says to the Canzas, that demand slaves of you? if there be any, they are the enemies of all men, and their heart is all gall. Live then in peace, my dear friends; and then our sovereign will be your lather, as he is the father of us all. (Qui sont les blancs qui vous demandent des esclaves ? si’l y en a qui vous en de-mandant, ils sont ennemis de tous les hommes et leur coeur est tout fiel. .Vivez done en paix, mes chevs amis; et alors notre soverain sera votre pere, eomme il est le notre a nous tous.)

I might then at the end of Bourgmont’s voyage, introduce the author reflecting on the policy and address necessary to be used in the intercourse with (he Indians, and the great profits of the fur trade, the object of Bourgmont’s voyage; and ask if it be possible that the French could be so blind to (heir interests as to attempt to make slaves of a people, represented by the same author, so passionately fond of liberty, and whose friendship they had used so much industry to acquire.

But I will now take a view of what Eaynal says of the intercourse between the (88) French and Indians. Eaynal, one of the authors quoted by the appellee, says, in his account of the establishment of the French in .North America, book 15, that in 1827 the French had in Canada only three miserable establishments surrounded with palisades. This languor, he says, had no other cause than the system of an exclusive company, which thought less of establishing a national power in Canada, than of enriching itself by the fur trade. Again, he says, the French had planned their establishments badly. In order to maintain the appearance of reigning over a great extent of country, and to get nearer to the peltry, they had made their settlements at such a distance from each other, that there was almost no communication, and they weie not able to help each other. Chap. 10th of the same hook, he says, the fur trade was the first object of the commerce of the Europeans in Canada. The French colony first carried on the trade at Tadousac, a port thirty leagues below Quebec. In 1640, the town of Trois Eevieres, built twenty-five leagues above the capital, became a second store house. In time Montreal drew to itself all the peltry. In the month of June the bark canoes arrived. The number of savages that brought them did not fail to increase as the French became better known. The recital of the reception they liad met with, and the sight of the goods they had received in exchange for their furs, all augmented the crowd. Never did they return to sell their peltry without bringing with them a new nation.

The English, he says, became jealous of this branch of commerce, and had almost ruined it, when the Court of France took the trade of these posts into their own hands and gave the Indians better treatment. The French traders, he says, sold their goods too h'gh 5 this was all the ill treatment the Indians,received from them. The English tra lers sold their goods lower, and consequently treated them better. Again he tells us that France had long labored incessantly to raise a chain of Forts which she thought necessary to her safety and to her prosperity in North America. Those she had built on the west and south of the St. Lawrence, to curb the ambition of the English, were large and strong. Those she had placed on the different Lakes, in important situations, formed a chain extending 1000 leagues north of Quebec; but they were nothing but miserable palisades destined to restrain the savages, and to assure herself of their alliance and the produce of their hunts.

Passing from Canada (o Louisiana, both countries being under the same Governor, and governed by the same policy, we find Joliet and Marquitie returning home from (89) exploring the Mississippi, and giving an account of the Illinois, a numerous people much disposed to form an alliance with the French ; and the Fort Maubile, built to keep in the alliance of the French, the Chactas, Alimabous, and other tribes less numerous, and to secure their peltry. Both in Canada and in Louisiana, the fur trade is the object of every establishment.

I have found in none of the historians any notice of an Indian slave population, either in Louisiana or in Canada. Stoddard, in the 32th' chapter of his sketches of Louisiana, dwells alfogether on African slavery, but says not one word of Indian slavery, nor does Breckenridge. Eaynal, in 13th chap, of the 16th book of his History of the two Indies, so much referred to, says that his calculation (of the population of Canada) does not include the numerous allies scattered over a space of 1200 leagues in length by a sufficient width, nor even 46,000 Indians domicilated in the neighborhood of the French settlements. None of them were ever subjects. In the midst of a great European population, the smallest tribes maintained their inde* pendence. All men talk of liberty, but the savages alone possess it. It is not simply the whole nation, but it is each individual who is truly free. This author speaks of negro slavery in Louisiana, but not of Indian.

I might from the same authors have produced many more instances of the attention of the French to cultivate the friendship of the Indians of North America. I have not mentioned half .the posts established for carrying on the fur trade. I might have produced more instances of the rivalry of the English and French in courting the friendship of those nations, and I might have produced instances of the French officers intermarrying' with them and adopting their manners.

But we find no companies incorporated to carry on a trade in Indian slaves; no posts established to protect companies or individuals engaged in such a trade, nor eten an Indian slave population in Louisiana or Canada once mentioned by the authors quoted, or any others \yithin my knowledge.

Bourgmont, indeed, in the extract which I have made from his speech to the Canzas, seems to think that white men might have instigated the Indians to war for the purpose of buying their prisoners to make slaves of them. I will repeat liis words. Who are the while men that demand slaves of you? if there he any such, they are enemies of all men, and their heart is all gall. Live then in peace, my dear friends, and then (90) our sovereign will be your father as he is ours.” From the tenor of the whole speech, I am inclined to think that trader's in the Indian slaves were as much discountenanced in those times by the French Government, as traders in African slaves now are by the American Government.

The speech is entitled to some consideration, being addressed to the Canzas by an immediate commissioner of the King of France, then employed on his sovereign’s business, and designed as it seems, to meet the King’s eye; for the author tells us, page 216, that his account of Bourgmont’s voyage was extracted and much abridged from the journal of that commandant; that he copied il from the original signed by all the officers and other persons who accompanied Bourgmont in this voyage. (Ce voyage detaille queje viens d’offrir aux yeux du lecteur, a ete extrait et tres abrege du journal du voyage de M. de Bourgmont au Padoucas. Je l’ai tire sur Poriginal signe de tous les officiers et personnes on place qui ont fait ce voyage avec ce commandant.)

I have now shown that both the English and French did not merely tolerate the African slave trade as was contended, but actively engaged in it for the supply of their colonies in North America. While, on the contrary, all the posts established by ihe French in North America, were designed to secure to themselves the commerce and friendship of the Indian tribes, and that an Indian slave population in Louisiana was unknown to the author cited by the appellee.

I conclude, then, that such a population was unknown to the laws and Government of France. That the small number of Indians which might have been purchased by French traders, were either clandestinely sold to other Indian tribes, or retained in the French settlements by the purchasers or their friends, under pretence that they remained voluntarily; and that under the French Government of Louisiana, the holders of such slaves never would have asserted, in a Court of Justice, a claim to property in an Indian. Accordingly we see those pretensions to property in Indians first ripening into claims under the Spanish rule, when the population of the province was disaffected by the Court of Spain, and Governors might be presumed to be disposed to do much to conciliate the rich and powerful at the expense of the weak and defenceless. With all this evidence before our eyes, of the disposition of the French Government to court the friendship of the Indians, we are required to presume an unwritten law of France, permitting her subjects to reduce Indians to slavery: Unwritten it must be, since we find no book containing an account of it. But are not all the laws of civilized nations in reality written ? and is not the phrase, unwritten law, merely a figure of speech ? All men are, by the law of nature, free; and without some positive declaration of the sovereign power of the State to the contrary, all judicial tribunals, in my opinion, set at liberty every individual who sues for his freedom. On this point, then, I am for the appellant. .

Fifth. I find nothing to induce me to think, that under the French Government of (91) Louisiana, private persons had a right to reduce Indians of the Natchez tribe to slavery: and the circumstance of an Indian being transferred by sale or gift can make no difference in the case. A person held in bondage can give no assent. No person can assent to enslave himself; and as to its being evidence of the assent of the Government under which he lives, I have before said enough. Had it been in evidence that the ancestor of the plaintiff was one of the 300 Indians sent by Perier into St. Domingo as slaves, I should have thought the plaintiff was lawfully held in slavery.

Sixth. It was not, I think, contended in argument by the appellant, that the declaration of Tayon, testified to by Reviere, amounted to an act of emancipation. On this point, I am for the appellee.

Seventh. On this point the law is clearly for the appellee. Negroes held in bondage under the French Government, would be considered lawfully slaves, unless they could prove their exemption from the common rule.

The judgment of the Circuit Court ought, in my opinion, to be reversed.

Opinion of

Wash, J.

This cause is duly stated in the opinion delivered by my brother Judge, and in the briefs of counsel, and was very ably argued on both sides. Many questions have arisen in its progress; some of great interest and difficulty, which I shall not attempt to discuss. The only one I shall notice (it being decisive on the merits) grows out of the four first instructions asked for by the appellee’s counsel, and given in the Court below, viz : — Whether an Indian of the Natchez tribe, taken prisoner in the war that exterminated that nation, might lawfully be reduced to slavery ? I consider it as clearly settled by the testimony, that the maternal grand mother of the plaintiff was a Natchez woman taken prisoner by the French in the prosecution of an exterminating war against that tribe about the year 1731 — that she was reduced to slavery, and that she and her descendants have been held in slavery ever since. The authority of Du Pratz is altogether consistent with the mass of evidence given on this head ; and if it were not, it could weigh but little in opposition to it. Du Pratz, III, p. 326, says, that when the French returned to New Orleans with the Natchez slaves, they put them in prison, but as it was too small to contain so many people long, without exposing them to infection on account of being crowded together, they placed the women and children upon the plantation of the King and elsewhere.” (92) On les mit en prison; mais comme elle’ etait trop petite pour continer long terns tout ce peuple, sans s’exposer a entre infecte de leur visionage on mait les fem-mes et les enfans sur l’habitation du Roi et allieurs.” And that after a short time, they embarked these slaves for the Island of St. Domingo, (by which means,) therefore, this nation became extinct in the colony.” "Peu apres on embarqua ces es-claves pour Pile de St. Dominique, afin que cette nation fut eteinte dans la colonie.”' This authority has been misunderstood, and standing alone, would justify the belief that some of these prisoners who had been “placed upon the plantation of the King and elsewhere,” might have remained in the country. Be that as it may, the testimony, as I conceive, establishes the fact clearly, that the maternal grand mother of the plaintiff was so captured and did so remain. The first four instructions asked for by the appellee’s counsel, were, therefore, correctly given, if the law be with them upon the main question. It has been conceded by the counsel for the appellant, that the municipal lawmight give title,but they contend that the law of nations could not: that there can be no proscription against human liberty or the claim to freedom,, and that the appellee is bound to show that its title in. its inception was legal. These positions have been maintained with great ability and research, but principles have been misapplied and the law is against them.

In America, the word nation is not of the same import as in other parts of the-globe: here it is applied to small societies or independent tribes or communities, who subsist by hunting over a vast extent of Territory;, whose ideas of property are-limited to the game they catch or kill: amongst whom there is no distinction but what arises from personal qualities, being without government, authority, subordination or prescribed duties — whose actions flow from the impulse of their own feelings or passions, unchecked, uncontrolled, unpunished. No natural rights are surrendered., The first step, towards establishing a public jurisdiction has not been taken by them. The right of revenge is left in private hands: if violence is committed, or Mood is. shed, the community does not assume the power of inflcting or moderating punishment ; if is the right and business of individuals, whose resentment is implacable and everlasting. There is (properly speaking) no such thing as public war amongst savage tribes. They are more or less general, as the individual who may have been-injured, may chance to be more or less beloved. All wars are private, for the re.-(93) dress of individual or family wrongs ; are conducted on the same principles, influenced by the same ideas, animated by the same spirit as in prosecuting private-vengeance. Resentment may be sometimes suppressed or smothered, but is never-extinguished | and often, when least expected, bursts forth.with desolating fury. They fight not lo conquer, but to destroy. The first article of their creed in prosecuting vengeance, is never to look in peace upon the face of a living enemy.” And though prisoners are sometimes taken, they axe killed or enslaved, at the pleasure of the victor. Can it be contended for a moment, that the laws of nations regulating wars between civilized communities, were intended to apply to, or can operate upon, such tribes ? It may suffice to answer, that it never has been, so. held by any writers on those subjects, and that the high authority referred to, does in express-terms assert-the contrary, (Vat. p. 520,) theonly one of the whole code that can be made to reach them, is the law of retaliation, to which civilized nations sometimes resort, and which they may rightfully enforce against all savage prisoners, without regard to age, sex, or condition. The description above, is applicable to the Indian tribes of North America generally, as they existed about the commencement of the 18th century ;■ and to the Natchez nation at the time of their capture by the French. I deem it unnecessary to say any thing as to the authority by which the war was declared or conducted,. Upon this point, then,-I deem the evidence given in the Court below,,ea-tirely competent, and the Circuit Court did right in giving the four first instructions asked for by the appellee’s counsel.

I choose to avoid the discussion of the other main question involving the legality of Indian slavery in general, but deem it proper to state, that from every examination T have been able to make of the matter, in reason and in law, (if it is not a perversion of terms so to speak,) upon principle and authority, it should be placed upon the same footing with negro slavery. I incline to think, too, that much confusion and misapplication of principles has arisen from the double light in which slaves are re-regarded y partly as mere property, and partly as persons capable of asserting full rights.

There being a division of the Court, by operation of law, the judgment of the Circuit Court is affirmed.

(a.) See same case, 3 Mo. R., p. 540, in which this decision was overruled, and the case decided unconformity with the opinion of Judge Tompkins.

      Absent, Judge M'Ghk,


source: Caselaw Access Project

author: Tompkins, J.,

license: Public Domain

text:
    Gamster v. Shannon.
    Where evidence, was offered under a .special count, but rejected by the-Court, and" afterwards received under a general county, this Court will not reverse the,judg.. nient of the Circuit Court for that cause alone.
    IN ERROR .from Ste. Genevieve Circuit Court.,
   Tompkins, J.,

delivered the opinion of the Court.

Canister filed his declaration in assumpsit against Shannon. It consisted of three--, counts. Tile two first counts are special, and the;third is a general count of mcfeMte". tus assumpsit. The-defendant filed the plea of noñ-assumpsit, with a notice of set»., off; the jury found that the defendant did .not undertake and promise, &c., and that the plaintiff was indebted to the defendant-in the sum of $248 60, for which sum, judgment was given by the Circuit Court..

To support his declaration, the plaintiff in. the. Circuit Court (who is also, plaintiff iil error) produced a deed to Shannon for certain tracts of land ;.'.the consideration for the conveyance of said land, is in said deed stated to> be, that Shannon had secured: to be paid to- the plaintiff, the- sum of fifteen hundredidollars;... the Circuit Court re-. fused to receive this deed in evidence under-ithe two.apecial counts, but permitted it to be read in support of the third count:

In the opinion of this Court, the plaintiff has lost nothing by-.the refusal of the' Circuit Court to permit the deed' to be given in evidence under the first two counts,, for no evidence of any other promise to -pay money was offered, than what was re---(9&) cited in the consideration of the deed above mentioned; even then, .were thes; evidence improperly rejected, the Court is not disposed to disturb the judgment of tha Circuit Court, inasmuch as the plaintiff has had the full benefit of his evidence-

The judgment of the Circuit. Court is affirmed,.

      Wash, J., appears not to-have been.present during, this term,.


author: BPGirk, C. J.,

text:
    Risher v. Roush.
    1. Courts of Chancery cannot', relieve against judgments at lavr,- for the mistakes orv negligence of the parties, even should the mistakes have been occasioned by the' suggestions of the Court. (Note a.)

    2. If a party has once submitted his case to a Court of Law, and it was proper for the • Court to adjudicate thereon, and does so, he is-.precluded from any relief in Chan-eery..
    IN CHANCERY:.
   BPGirk, C. J.,

delivered the opinion of the Court.

This was an appeal from the Circuit Court of Cape Girardeau county, in a Chancery case.

This case appears to be, that Roush brought an action at law against Risher on a bond. To this action, Risher pleaded payment, and.gave notice of set-off. On this-otate of the case, the parties went to .trial, and judgment was had against Risher; no bill of exceptions was taken to any. of the proceedings of the-Court. Risher after-wards filed his bill in,Chancery against Roush, toibe-relieved from this judgment,, and enjoined proceedings on the same; .the cause was heard before the Circuit Court,, and the bill of Risher was dismissed, and the injunction dissolved..

The bill alledges that the money in the bond was paid this, is denied by the answer. The bill also alledges, that when, or about the time the trial was to be had in the Court below, certain depositions of Risher which would prove the payment,, were set aside for informality;;and that then he-made Ms affidavit for a continuance, stating thereon what the testimony was, which was rejected ;;and that he expected to have the testimony .by the next Court, &c., &c. And made his motion for aicontinuance, which motion-was by the-Court overruled ;■ and, that'the Court gave* as a reason for overruling the motion,.that if the said testimony was there it would: not avail any-thing, because, that Risher’s remedy was in Chancery.

(96) No bill of exceptions was taken to the overruling this motion, by which, proceedings of the -Court of Law, the complainant was induced to believe his reme- - dy was-in.Chancery,- and.-he therefore did.not save the paint of suppressing.his degof,. sitions and refusing the continuance, whereby judgment went against him. And that he is now without remedy at law.

The answer does not admit nor deny these matters as to the depositions and continuance, but they are proved by the testimony of a witness.

The Circuit Court dismissed the bill, on the ground that the matter had been submitted to, and adjudicated on, by a Court of Law; and that a Court of Chancery could not now overhaul it.

When this cause was before this Court at the last term, I did incline to the opinion, that as the reason why the defendant at law failed to save his case, so that it could he revised in a Court of Error, was, owing to the suggestion of the Court, that the remedy was in Chancery, the party ought to have relief;.but on reflection I am compelled to abandon that opinion. If the party chose to believe in the opinion of the Court, it must be at his own hazard; and it now seems to me to he no good grounds for relief in equity, that the Court or his counsel gave him bad advice ; he should have excepted to ttie opinion of the Court in refusing to continue, and if on examination, this should be found to be error, then he would have had relief ; but having failed to do so, furnishes no more ground for relief than he would have been entitled top, if the Court had committed any other error, and he had submitted to it till it was too late to redress it. I take the rule to be, that if a party has once submitted his case to a Court of Law, and the defence was proper for a Court of Law to adjudicate on, and it does adjudicate on it, that the case is forever closed against any relief in Chancery; unless the party is prevented by some fraud of the other party from making a legal defence, he must submit and abide the consequences of his own folly or negligence. Here no fraud of the other party is alledged'as a reason for not making a defence; no uncommon calamity befel .the defendant: he should, if his testimony was improperly rejected, have saved the point and reversed the judgment; or if properly rejected, and a continuance was improperly refused, have saved the point and reversed for that. But he has done neither, but relied on the mistaken opinion of the Court, given obitw dictum, that he would have relief in Chancery.

(97) We have looked into the depositions that were suppressed, for now they are made testimony in this case, By them, something like evidence of payment, or a demand by way of set-off, seems to be loosely established ; .but if the party has any ■ demand good by way of set-off, he must be driven to his separate action for remedy, ■ if he submitted no evidence on that point in the Court at Law, (see Peake’s Em page — ). But in a Court of Chancery he cannot even have that benefit, his case-being of a legal nature. Courts of Chancery cannot relieve against judgments at< law, for the mistakes or negligence of the parties.

Judgment affirmed.

(a.) See Yontis v. Burditt, 3 Mo, R., p. 467.


text:
    Evans v. Hays.
    1. The competency of a witness may be restored, by executing to him a release from legal liability.
    2. Where a party brought assumpsit in the Circuit Court, after his demand had been reduced by direct payments, within the jurisdiction of a Justice of the Peace— held that he pay the costs of suit.
    3. In an action of assumpsit against the Sheriff, for fees endorsed on an execution— held, that the execution should be received in evidence, no'.withstanding the endorsement was a joint one, for the benefit of the plaintiff and another.
    IN ERROR from Cape Girardeau Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court.

Evans sued Hays in the Circuit Court, for money had and received to and for his use. Evans had judgment before the Circuit Court for $19 06 3-4, and was condemned to pay costs, because his demand was reduced by direct payments, within the jurisdiction of a Justice of the Peace. It appeared in evidence that the defendant had been Sheriff; that the money he was charged to have received, was for fees taxed on executions to Evans, as attorney at law ; and that he produced as a witness in this case, one William Garner, who had been his deputy whilst this money was said to have been in a state of collection ; and, in order to make Garner competent to testify, he executed to him a release ; but that Garner declared that he still felt (98) himself in conscience bound to pay Hays any thing that might he recovered of him in consequence of his (Garner’s) being his (Hay’s) deputy.

'The plaintitf offered in evidence an execution issued out of the said Court, on which was endorsed an attorney’s fee of six dollars; and on which said Evans and one G. A. Bird were marked as attorneys.

The Court admitted Garner to testify, and refused to suffer the execution on which Evans and Bird were marked as counsel, to he received in evidence.

The Court, in our opinion, properly admitted Gainei’s testimony, after the release made by the defendant. As to the rejection of the execution offered in evidence, more difficulty presents itself.

If it were a demand arising from a contract between the parties, (here could he no doubt hut it is one created by the operation of a statute law. The Court then is rather inclined to construe the law differently, and to distribute the fee allowed by the statute, equally among those who appear on record to be the attorneys for the successful party. When the names of the counsel are thus endorsed on the writ by the Clerk, the Court will presume that lie did it by authority, and will justify the Sheriff for paying each his proportion, unless he he otherwise informed by the attorney feeling himself interested.

The judgment of the Circuit Court, is, for this reason, reversed and remanded. This Court, however, is of opinion, that the Circuit Court d d not err, in'sentencing Evans to pay cost, because his demand was reduced by payments within the jurisdiction of a Justice of the Peace,


text:
    Risher v. Thomas.
    The Circuit- Court have a right which is inherent, to make their own rules ; but those rules, before they become obligatory, should have a reasonable publicity given to them.
    IN ERROR from the Cape Girardeau Circuit Court.
   Tompkins, J.,

delivered the opinion of the Court.

This cause was remanded from this Court, at the December term of the last year, (99) to the Circuit Court of Cape Girardeau county; and on the 31st day of May, 1828, the opinion of this Court, and its decision in this case, reversing the judgment of the Circuit Court were filed with the Clerk of the said Circuit Court; of which Risher had notice on the 18th day of June then next ensuing. On the 28th day of August of the same year, this cause was tried in the Circuit Court, when judgment was again given for the plaintiff. Before the trial the defendant moved for a continance, alledging that his cause was docketed before others that had precedence of it; and that it had been till that time the practice of the Court, to try causes remanded from this Court, at the second term after they were filed. Such appears to have been the practice of that Court. But on the 30th day of June, 1828, the Judge of that Court had, between terms, made and filed with the Clerk of the Circuit Court of Cape Girardeau county, a rule, that when transcript of records of this Court shall he filed with the Clerks of the Circuit Courts, such cases shall stand for trial, &c., as other causes, after the defendant shall have had notice in writing, at least thirty-days, of the filing of súch transcript. It does not appear that the plaintiff moved the Court to give to his cause its proper place on the docket. He cannot then complain that his cause was called for trial before its turn on the docket.

The right of the Circuit Court to make its own rules is a right that is inherent; but those rules, like the rules or law prescribed by a legislative body, ought to have a reasonable publicity given to them before they become obligatory. By the rule above mentioned, the practice of the Circuit Court had been materially changed, and this rule had been made in vacation, when it is not reasonable to suppose that either the plaintiff or his counsel could have known of its existence ; it does not appear that either the one or the other had any knowledge of its existence. Had the rule been adopted in term time, when the members of the bar might reasonably have been expected to attend, this Court would have, thought that sufficient publicity had been given to it. But as it was adopted in vacation, we are inclined to think it ought to have had no binding force till one term had elapsed after its adoption.

The judgment of the Circuit Court is, therefore, reversed, and this cause remanded for further proceedings..


author: M’Gikic, C. J.,

text:
    Nettles v. Sweazea and others.
    1. Where several defendants are sued, some acquitted and others found guilty, and the judgment is reversed, on a second trial alt the defendants may join in a plea unless the plaintiff is injured by it.
    2. A general demurrer will not lie where the plea is good in form and substance, though pleaded out of time -the objection should be made to filing.
    3. A plea puts darrien c mtinuance may be pleaded nunc pro tunc, notwithstanding there has been a continuance since the existence of the subject matter of the plea. (Note a.)

    4. On a plea of release, the venue may be laid according to the truth, no matter where made,
    6. On plea of release, pleaded puis dtirrien continuance, costs should be awarded the plaintiff to the time of filing — the defendant after that time.
    IN ERROR from the Cape Girardeau Circuit Court.
   M’Gikic, C. J.,

delivered the opinion of the Court.

This was an action of assault and battery by Nettles against Sweazea and several others; the plaintiff had judgment, and that was reversed, but on the trial some three or four persons were acquitted, the others found guilty, when this judgment was reversed and sent back to be tried. All the defendants to the original action joined in a plea of release; this plea showed that the release was made before the former trial, and of course a term had intervened between the time of making the release and the time of pleading. The plea was demurred to; the demurrer was overruled, and judgment for the defendants. The error assigned is a general one.

The points relied on in argument are, first, that the defendants acquitted, and those found guilty on the first trial, have joined in the plea; this point is not much relied on. The law on this point is, that Nettles cannot avail himself of this if it be wrong, unless he can show that in some way he is injured by it. I cannot see how lie is injured; this point is ruled against him.

Second point is, that this plea is bad, because it appears by the record that a term had elapsed between the time of the release being made, and the' time of pleading it. This point is ruled for the defendants in error; a general demurrer cannot reach this matter. If the plea is good in form and substance, but is pleaded out of time, the objection should be made against filing it; and the fact whether a continuance had (101) intervened or not, has, as I conceive, no other effect than to regulate the costs accrued to the time of the plea pleaded. It appears by Chitty’s pleadings, 637, that though a term had intervened, the Court allowed the party to file his plea, puis darrien contirmtmce nunc pro tunc.

Third point is, that the plea is had, because it shows the award and satisfaction took place in a different county from that in which the trial was to be had; the answer to this is, that the venue as to the making the release, may be laid according to the truth, no matter where the fact took place.

Fourth point is, that the Court erred in giving judgment for the whole costs against Nettles; this point is ruled for the plaintiff in error. The judgment in the Circuit Court should have been for costs in favor of Nettles, up to the time of pleading the release, and after that time in favor of Sweazea. The judgment of the Circuit Court upon the demurrer, is affirmed, and as to the costs, reversed, and the costs up to the time of pleading the plea of release is to he adjudged against Sweazea, and after that, against Nettles, and Sweazea pay the costs of this writ of error.

(a.) See Thomas v. Van Doren et al., 6 Mo. R., p. 201.


author: Wash, X, Tompkins, J.

text:
    Byrd and others v. Governor of Missouri, to use, &c.
    a. The improvement of the real estate of an intestate, by the administratrix, is a misapplication of the funds of the estate, and the security will be liable for the waste committed.
    3. Under an agreement that the security will be permitted to mate use of any equitable defence he may have,’ &C- — -held that evidence is admissible to show the increased value of the estate ; for which, under the agreement, the security will be entitled to a credit.
    Tompkins, J., dissenting.
    IN ERROR.
   Wash, X,

delivered the opinion of the Court.

This was an action of debt commenced in the Circuit Court, against Byrd, as the security in an administration bond. On the trial, an agreement between the defendant and the creditors of the deceased was read in evidence, hy which it appears as follows: <£ that Col. Byrd proposed to go into the Circuit Court and,©pter his appearance without writ, to such suits as the creditors of Chamberlain may institute against him, for waste on the administration bond. All creditors may inslitute suit, and he will agree with the creditors to try one to establish the amount of the waste; and that judgment shall he entered up against him for the waste in favor of each creditor in proportion to the whole amount wasted, and the parties are to permit Col. Byrd to mate use of any equitable defence he may have, &c.55

Several breaches were assigned, and on the plea of nil debet, the waste was established to the amount of $1503 39 3-4 cents. The defendant then proved, that "previous to the death of the intestate Chamberlain, he had dug and walled a cellar on a (303) lot in the town of Jackson, that after his death the said Eliza, (administratrix,) before the said estate was declared to be insolvent, went on to build, and did actually build, a brick house on said lot, on the foundation made by the said Jason, (the intestate,) in his life time, as aforesaid and it was proven that the building the said house could not have cost the ¿aid Eliza (the administratrix) less than twelve or thirteen hundred dollars. The defendant further proved on the trial, that the administration of said estate was taken from said administratrix, and given to said defendant. That in the year 1822, on his (defendant’s) application to the Circuit Court of the county of Cape Girardeau, the Court ordered him, the said defendant, as administrator de bonis non, to sell all the real estate of Jason Chamberlain, (the intestate); that in puisuance of said order, lie did sell at public sale, the said real estate ; that amongst the rest, he sold the said lot and brick house, in the town of Jackson,'for seven hundred and seventy-five dollars, all of which, he paid by order of the County Court, to the creditors of said Chamberlain. The defendant further proved on the trial, that at the time of said sale of said lot by said administrator, the lot on which said brick house was built, with the cellar walled as aforesaid, was not wortli more than one hundred dollars ; and the deten unit claimed as an equitable credit, (under the agreement of the parties as aforesaid,) six hundred and seventy-five dollars, the difference between what said lot, with the cellar aforesaid, was worth at the time of the sale aloiesaid, and what the lot with the house aforesaid sold for, which was applied to the payments of the debts due ; but the Circuit Court rejected the testimony and gave judgment for the full amount of the estate wasted, to which the defendant excepted, and by a bill of exceptions, has spread the agreement and evidence upon the record.

The only question to be considered is, did the Circuit Court err in rejecting the testimony ? As to the strictlaw of the case, tlitro can be no doubt; the administratrix in building the house, made a gross misapplication of the funds of the estate, and her securities were liable for the waste committed. By the agreement,however, the defendant may well claim a credit for the improved value of the estate which had been applied towards the payment of the debts due the intestate. It will ever be a difficult matter to determine, under sucli ciicumstances, the amount to be allowed; but when the proof can be made, there can be no good reason why it should not avail the defendant; it would be any thing else than equitable, to allow the creditors to (104) receive the improved value of the estate, and then to recover the full amount of the assets which had been wasted, or misapplied toward the improvement.

The Circuit Court erred, therefore, in rejecting the testimony, and the judgment must be reversed, and the cause remanded tor further proceedings, conformably t<* this opinion.

Tompkins, J.

dissenting.

I dissent from the opinion of the Court, believing that in equity, no allowance would be made to the administratrix for building a house on the land of the intestate. ■On the contrary, that at law and in equity, it is a waste to expend the money of the intestate in this manner; and that the administratrix would lose her money equally as if she had built a house on the land of any living person without his assent.


author: Tomkkins, J.,

text:
    Scott v. Jackson.
    'inhere mortgaged property is soM and the proceeds of the sale are insufficient to pay the mortgage debt, tile mortgagor is personally liable foi the remainder of the debt, unless it ivas a part of the agreement that the mongagee should rely solely upon the mortgaged premises.
    IN CHANCERY from Ste. Genevieve county.
   Tomkkins, J.,

delivered the opinion of the Court.

Scott filed his bill in the Circuit Court of Ste. Genevieve county, stating that on the 32th day of July. 1815, Jackson executed to him his deed of mortgage for certain land, to secure to Scott the sum of five hundred dollars, by Scott to Jackson paid ; that Jackson failing to pay the said sum of money according to agreement, he (Scott) filed in the Circuit Court of Ste. Genevieve county, his petition for the foreclosure of said mortgaged premises, and for ihe sale of said mortgaged premises, to pay the said five hundred dollars and the interest thereon due ; that said property was sold for one hundred and eleven dollars, and that no other or further sum of money had been paid him, and prays the following questions may be answered by the defendant:

First. whether Jackson did not borrow the sum of five hundred dollars in said mortgage menfoned, at the time mentioned, and on the conditions mentioned; and if (305) not, what sum of money did he borrow, and at what time, and on what conditions ?

Second. Whether said mortgage was not made to Scott merely as a security for said sum of five hundred dollars with interest, Ac.; and if not, for what purpose was it made ?

Third. Whether said mortgaged premises were not as before stated, sold for the sum of one hundred and eleven dollars, and if not, for what sum were the same sold, and for how much, and when were they sold?

Fourth. Whether he, Scott, has been paid by Jackson or by any person for him, any other and further sum than the said sum of Sill; and if so, what sum has been paid,.and when, and by whom, and to whom?

Fifth. Whether the said sum of five hundred dollars with interest thereon from the date of said motgage until the (then) present time is not justly due to Scott,after deducting the said sum of Sill; and if not, what is due?

Sixth. Whether the proceedings mentioned in the bill to have been had for the foreclosure of said mortgage have not been had, and if not, what proceedings have been had, and how and when ?

And it is then prayed that Jackson may be decreed to pay the remaining part of the aforesaid sum of §500 with interest thereon due.

To the interrogatories the defendant answers, that he never did borrow of the said John Scott the said sum of five hundred dollars or any sum at any time, or on any conditions, and that said mortgage was given to secure the payment of the said sum of five hudred dollars to said Scott, so far as said mortgaged premises would secure the payment of that sum, and no farther;, and to leave it in the power of the respondent to pay the said five hundred dollars, or forfeit the mortgaged premises at his pleasure.

The complainant e-xcepted to the answer j, first because the defendant did not state whether the said mortgaged premises did not as in the hill stated, sell for $111, and no more..

Second. Because the- defendant did not state whether the complainant had been paid by the defendant any other sum than the said sum of $111; and if so, what sum, &c.

Third. Because the defendant did not state whether the said sum of $500, with interest till the (then) present time, was not justly due to the complainant, alter deducting therefrom the said sum of $111; and if not, what sum was due to the complainant..

(106) Fourth. Because the defendant did not state whether the proceedings in the bill slated to have been had for the foreclosure of said mortgage and for the sale of the mortgaged premises, had not been had ;■ and if not, what proceedings had been had.

It is assigned for error among other things, that the exceptions taken to the defendant’s answer were overruled in the Circuit Court. Many other errors were assigned, some of which were assigned from wrong impressions of the state of' the record. The counsel for the-plaintiff in error, not having it before him, and the Court does not at this time think it material to decide on others. The counsel for the defendant in error, assumes the ground, that the bill does not contain sufficient equity to warrant a decree. This Court thinks otherwise. It is also the opinion of the Court, that the exceptions to the answer were well taken.

The judgment of the Circuit Court is, therefore, reversed, and the cause remanded for further proceedings.,


author: Tompiuns, J.,

text:
    Ashley v. Bird.
    Where A. sells lands to B-., under a power of attorney, receives the purchase money- and pays over the same to his principal; and afterwards B. sues A. and recovers, judgment for the purchase money so paid, on the ground that the power of attorney under which A. acted was void and of no effect — A. will be left to his remedy against his principal to whom he paid over the purchase money.
   Tompiuns, J.,

delivered, the opinion of the-Court.

Bird filed his bill on the Chancery side of the Circuit Court of St. Louis county,, against Ashley and others, executors of Elias Rector, deceased, stating, that in the year 1819, he, as agent of Abram Bird, his father, and acting under a power of attor-. ney, which he supposed; gave him ample authority, sold to the deceased E. Rector, three hundred and- twenty acres of land, being the half of a larger tract owned by said Abram, for the sum of nine hundred and sixty dollars; and that as attorney in fact for said Abram, he executed a bond' or covenant for the title of said land; that before the time limited in said bond or covenant for making the title to the said land, said Abram Bird died 5, that said E. Rector in his life time, informed the complainant he had sold and transferred all his right, title, and interest, in said tract of land, to Stephen Rector 5, that afterwards, in the life time of said E. Rector, the complainant together with Stephen Rector and others, as proprietors, laid out a town partly on 3aid tract, so sold to said Elias, and partly on the residue of the larger tract of said (108) A. Bird: and a public sale of lots of said town was had by said proprietors, embracing a considerable portion of said tract of land sold as aforesaid to E. Rector ; that the notes taken at said sales for the consideration of said lots, were divided among said proprietors, and that Stephen Rector took one half of the notes aforesaid, and collected a large sum of money from the makers thereof; that he knows not whether any part of said land is unsold by said Stephen Rector; ¿that after the death of said Elias Rector, his executors commenced an action at law against the complainant for money had and received for the use of said Elias, to recover the purchase money paid as aforesaid by said Elias, and had judgment for the same, the power of attorney under which the complainant sold the land to Rector being decided to be insufficient, which judgment was affirmed by the Supreme Court. That Stephen Rector is also dead, and that the estates of Elias and Stephen Rector are insufficient to satisfy the demands against them respectively; that the heirs of Abram Bird have given the complainant a power of attorney to make a deed to E. Rector’s representatives ; that one of them is a married woman; that the complainant paid over the purchase money to A. Bird in his. life time, who expressed himself well satisfied with the terms of the sale, and he further states that said Abram by the receipt of said money confirmed in equity the said sale to said Rectors made as above stated by the complainant, and that though he should pay over the said sum of money to said Ashley, he would have no means of obtaining the equitable title of said land divested of the rights of said Stephen and of the owners of the lots in said town; .that no person has hitherto . had recourse upon said Elias or his estate on account of the want of a legal title to-said land ; .that the complainant believes no person has any wish to do so ; that the' present claimants of the different subdivisions of said land, wish the legal title to be made to them in all instances, as the complainant believes. That a patent has been, obtained for said'land; that if E. Rector’s representatives should not obtain the title. to said land, the holders of the town lots can have no remedy against the insolvent estates either of Elias or Stephen Rector.

The hill prays that the executors of Elias Rector may he enjoined, from collecting . the purchase money on the judgment above mentioned, and. that a specific performance of said contract may he decreed.

To this bill the defendants demurred, for want of equity. The Circuit Court over-(109) ruled the demurrer and decreed that the executors should be perpetually enjoined from collecting the money aforesaid.

The complainant controverts two objections taken hv the defendants ; First. That proper parties had not been made to the bill. Second. That there was no equity; and'says, “ first he takes the position that proper parties have been made, they are the same in the suit at law; and that it was not necessary to make the present owners of the different subdivisions of the land parties; .1 Johnson Chan. Rep. 349, 438; 2 Johnson C. R. 197, sustains the position that the general rule requiring all persons inte- ■ rested to he made parties to the suit, is confined to parties involved in the issue, and who must necessarily be involved in the decree, and that it is a rule of convenience merely, aud may be dispensed with, when it becomes extremely difficult or inconvenient.” Had any of the persons claiming this land under E. Rector been made parties to this bill, it might have been material to examine the authorities here cited. But as none of them are either complainants or defendants, the authority of those - cases is conceived to he of no avail. .

Thompson Bird, the complainant, comes and asks an injunction, because, he says, .. A. Bird in his life time, by receiving the purchase money, confirmed the sale in equity. . That .the claimants under E. and S. Rector would not be able to have the sums they - Imre respectively paid, refunded out of the insolvent estates of E. and S. Rector, and .5 though he should pay the amount of the judgment, he would have no means of obtaining the equitable title of said land, divested of the rights of said Stephen, and of the owners of the town lots.

Wow although this solicitude to secure the claimants under Rector is very laudable, yet it seems from his own view, useless and out of place. If S. Rector and the owners of the town lots, whose rights he cannot divest, have such equitable claims as he contends, then they can, whenever they wish, proceed to establish that claim and the payment (by him) of the amount of this judgment will be no injury to them. If those purchasers were complainants, praying that Rector’s representatives might be compelled to take the land for the reasons assigned by this complainl, it might be necessary for this Court to decide whether this sale by T. Bird to E. Rector were good in equity, and whether his representatives should be compelled to take the legal title. Again, had the heirs of A...Bird come in and offered to make a good title, it would have been material for this Court to have decided how -far Rector’s representa(110) tives were bound to accept it. But inasmuch as neither the purchasers under Rector, nor the heirs of A. Bird are complainants; and moreover, as it does not appear to the Court that a good title will be made to Rector’s representatives, the com-.plainant must be left to his remedy against the administrators of A. Bird, to whom., he paid over the purchase money.

The judgment of the Circuit Court is reversed-,

      Absent, Judge Wash.


author: M’Girk, C. J.,

text:
    McKnight and Brady, adm’rs, v. John Bright, &c.
    :: Where the purchase money for land remains unpaid, it is a lien on said land,'., against all subsequent purchasers, with notice. (Note a.)

      %. A party cannot recover on a ground foreign to his bill.
    APPEAL in Chancery from the Circuit Court of St. Louis county.
   M’Girk, C. J.,

delivered the-opinion of the-Court.

Tlie complainants’ hill was dismissed: to reverse the decree of dismissal, the • cause Í3 brought to this Court.

The bill alledges, that on the 1st of August, 1819, John McKnight, one of the in-testates, and Thomas Brady the other intestate, did make and execute their deed of', conveyance, of and to a certain piece of ground in the town of St. Louis, to one Josiah Bright and one Charles Sanguinet and their heirs in fee, who were atthat time - partners in trade. That on the face of the deed there is an acknowledgment that the consideration for the land was fifteen hundred dollars, and that the deed acknowledges the receipt thereof, in the usual form. That in truth no money was paid, but that to secure the payment of the consideration, two notes were executed by San-guinet & Bright, for $750 each, to McKnight & Brady, on the 24th November, 1819. The one payable in January, and the other in June succeeding. No mention is made ip these notes about the consideration thereof. The bill avers that these notes were given to secure the payment of the purchase money. The bill further alledges that a short time thereafter Sanguinet & Bright having contracted debts to a large amount,, (111) dissolved partnership, and that being so indebted, they did on the 4th May,. 1820, by a deed convey a part of said land to one Tholizon, the brother-in-law of said Sanguinet & Bright, for the expressed consideration of about $1600. That at the. same time, Sanguinet conveyed by deed his half of the residue of the land to. Bright and withdrew from the firm. That oil the 19th May, 1820, Bright made a deed of mortgage of the premises to his father who lived in Massachusetts,, to secure the payment of $8,000 due by Josiah Bright to John his father.. That shortly thereafter Sanguinet & Bright took the benefit of the insolvent debtors.act..

The bill shows also, that other creditors of Sanguinet &. Bright obtained judgment against them, had execution and levied the same on the mortgaged premises, had the same sold after Bright’s mortgage w;as made, and the same was bought in by J.. Bright, or for him, by his agent, for $50.. That John Bright afterwards made a lease, of the premises to John Shackford, who is also a defendant in the cause in Chancery.. The bill charges that the deed from Bright & Sanguinet to Tholizon is fraudulent, as being made on the eve of insolvency, and the same being made on a feigned consid-, eration. The proof is, that Sanguinet, one of the firm, owed Tholizon about $1,200 and not $1,500, and for that the.deed was made.

The bill charges that the deed from Sanguinet to Bright was fraudulent for the same reasons. There is no positive proof for what, reason this deed was made, but it is assigned by the appellee’s counsel that there is enough ontherecord.to show that it was in consideration that Bright had. joined in the conveyance.to Tholizon to pay Sanguinet’s debt, and that Bright was to pay the debts of the firm. The bill insists that the mortgage deed by Josiah Bright to.his father, is fraudulent for the same reasons.

The proof is, as appears by-the answer of-John Bright, that the firm of Sanguinet & Bright owed him at the date of the execution of the mortgage about $3,000, and that Josiah Bright owed him. on his private account about $1,600.

The bill insists that the lease to Shackford is fraudulent, and void, because derived through a fraudulent grantee.

The bill seeks to set these several deeds aside, and prays that the debt of Me-. Knight & Brady may be-decreed-a lien on the premises, and that the same may bo. sold to pay said debt.

The first point made by the appellant, is, that where the purchase money for land (112) remains unpaid, it is a lien on said land against ali subsequent purchasers of' said land, who purchase with notice of said purchase money being unpaid. It is conceded by the counsel on the opposite side that this is the law.

But it is insisted on by him that in this case there is no proof that John Bright or.Shackford had any notice express or implied, that the purchase money was unpaid.

And secondly, that in this case, there is no proof that the notes of Bright & Sanguinet, mentioned in the bil!, were given to secure the payment of the purchase money of the premises.

The hill alledges that they were so given. The testimony of Sanguinet says, nothing about it; John Bright says in his answer, he knows nothing about it; and Shackford denies all knowledge on that subject. There is no other proof as to this matter. This is a material point to be proved, and for want of this proof, the lien, if no other reason stood in the way, cannot be set up.

It is insisted by appellant’s counsel, that if this objection should prevail, yet that the deeds to Tholison, Josiah Bright, John Bright, and the lease to Shackford, ought to he set aside as fraudulent, and the property subjected to the payments of debts, and particularly to the payment of this debt. The appellee’s counsel makes two objections to this: First, that in this case, the hill proceeds on no such ground, and that the party cannot recover on a ground foreign to this bill. This is a solid objection, the bill seeks no such object. The other objection is, that the complainants-must do all they can at law, before they can go into chancery. This objection seems to be good as far as it is warranted by the record.

But the record shows that on one of these notes, judgment was obtained upon the.. whole matter.

The decree of the Court below, is affirmed.

Many other points were made in this case, which I will take no notice of, as this case is decided on the foregoing points.

(a.) See Marsh v. Turner & Lisle, 4 Mo. R», p. 253.

      Absent, Wash, S.