author: Mr. Justice GRIER

text:
    George W. Parks, Administrator of Samuel Parks, v. John Ross.
    In some of the States it is the practice, after the evidence for the plaintiff is closed, for the defendant to pray the court to instruct the jury that there is no evidence upon which they can find a verdict for the plaintiff.
    Tliis is equivalent to a demurrer to the evidence, and such an instruction ought to be given whenever the evidence is not legally sufficient to serve as. a foundation of a verdict for the plaintiff.
    Where the United States and the Cherokee nation agreed that the latter should emigrate across the Mississippi, and the former pay the expenses thereof, and- the Cherokees undertook to conduct the movement entirely by their own .agents, a person whose wagons had been hired could not hold the’agent who had hired them personally responsible. The owner of the wagons knew that the agent was a public officer, and dealt with him as such.
    Wherever a contract or engagement, made by a public officer, is connected with a subject fairly within the scope of his authority, it shall be considered to have been made officially and in his public character, unless the contrary appears by satisfactory evidence of an absolute and unqualified engagement to be personally liable.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia.
    It was an action brought by Parks for services rendered by Samuel Parks to John Ross, in the removal of the Cherokee nation to the western side of the Mississippi, in .the years 1838 and 1839. The bills of' exception set forth in extenso all the evidence offered by the plaintiff upon the trial. Some of this evidence consisted of long documents, which it is not deemed necessary to insert, although they were made parts of the bills of exceptions. Their contents will be sufficiently understood from the following narrative.
    In the year 1838, the government of the United-States was desirous to remove the Cherokee nation to their assigned habitation beyond the Mississippi River; and deputed General Scott to make an arrangement with them for that purpose. The Cherokees upon their part appointed an agerit with plenary powers, as appears from the following preamble to some resolutions adopted by them in 1840: —
    “And whereas,-these conditions being fully settled, the special agents of the nation, acting on the nation’s behalf, after having made divers appointments for the purpose of carrying it into effect, in order to condense the business, did delegate its entire superintendence to one of their body, John Ross, and by John Ross such persons were deputed for the management of the various departments, on account of the. nation, as were considered best quálified for the purpose,” &c.
    In order to ascertain the probable expense and amount of drafts necessary to be drawn upon the Treasury, General Scott caused thé following estimate to be made out.

      Estimate for the emigration of á party of one thousand Cherokees to their country west of the Mississippi, distance eight hundred miles, eighty days going: —
    Fifty wagons and teams, (twenty persons to each wagon,) at a, daily expense of $ 3.50, including
    forage,......■ . $ 28,000.00
    Returning, .$ 7 each, for every twenty miles, . 14,000.00
    Two hundred and fifty extra horses, forty miles
    each per day, . . ... . . . 1,000.00
    Ferriages, &c.,........ 1,000.00
    Eighty thousand rations? at 16 cents each, . . 12,800.00
    Conductor, $ 5 per day,..... 400.00
    Assistant conductor, $ 3 per day,... . ' . 240.00
    Physician, $ 5 per day,..... 500.00
    Physician returning, $15 for every hundred miles, 120.00 Commissary, $2.50 per day, . . . . 200.00
    Assistant commissary, $ 2 per day, . . . 160.00
    Wagon-master, $ 2.50 per day, . . . 200.00
    Assistant wagon-master, $ 2 per day, . . . 160.00
    Interpreter, $ 2.50 per day,..... 200.00
    $65,880.00
    Genéral Scott explained the contract in this way: —

      “ The understanding of the parties was common and distihct, that the eighty days allowed for the removal of each detachment, by land, was a mere assumption of a basis on which to calculate, for the moment, the advances to be made by the United States on account • of the movement, and to set it agoing. If the advances proved to be too great, the excess was to be paid into the treasury of the' nation ; if too little, on account of more time in the movement, the United States were to make up the difference from the trust fund.”
    -The Cherokees were formed into thirteen detachments, and the removal commenced about the 1st of September, 1838; but in consequence of sickness amongst them, a drought in the country through which, they had to pass, difficulties in crossing the Mississippi, and other embarrassments, the time of removal was extended to a much longer period than, eighty days.
    Samuel Parks was a citizen of the Cherokee nation, and John Ross hired from him four wagons and teams, to be attached to Detachment No. 11.
    On the 18th of May, 1840, John Ross, styling himself “ Principal Chief and superintending Agent of the Cherokee Nation for Cherokee removal,” presented ari .account to the proper office at Washington, claiming a balance due to the Cherokee nation of $ 581,346.88|. Amongst his vouchers was the following, being one of the expenditures incurred by Detachment No. 11, in which Parks was, with his teams: —
    For hire of'fifty-one wagons and teams, for 1,029. persons, from the -1st of November, 1838, to the 24th of March, 1839, inclusive, 144 days, at $ 5 , per day, $ 36,720; allowance of '40 days for returning, at $> 7 per day each, including travelling expenses, f> 14,280, ' . , . . . • $ 51,0,00.00
    In November, 1840, the Cherokees passed some resolutions, amongst which were the following: —
    “ Resolved, That the authority vested in the special agents, and continued by the act of union between the Eastern arid Western Cherokees, passed at Illinois Camp-ground, on the 12th day of July, 1839, and by them conferred upon one of their members, John Ross; as superintendent, with a view to facilitate the duties required of them, be, and the same is hereby, approved arid ratified.
    “ And further resolved, (in support of the aforesaid authority,) That by the Cherokee nation, through their national committee and council in national council assembled, it is hereby ordered that the aforesaid John Ross.be, and he is hereby, directed and fully empowered to proceed to Washington city, and to urge a settlement of this claim with all possible expedition, and to apply for and receive from the government of the United States, in the name of the Cherokee nation, the balance due of $ 581,346.88£, as stated' in the account of the emigration claim, in order that the business growing out'of lt.jaaay be brought to a final close.”
    On the 6th of September, 1841, Mr. John Bell, then Secretary of War, decided upon this claim, and allowed it, with certain deductions.
    ' On the 17th of September, 1841,- Ross received .from the Treasury the sum of 486,939.50. ■
    On tfie 13th of December, 1841, Ró'ss set,tied an accourit with Parks as follows: ■—
    <{ The Cherokee Nation to Samuel .Parks, deceased, Dr.
    For the services of four wagons and teams, in the emigration, of the Cherokees in Cáptain Rich- ' , ard Taylor’s detachment, commencing the 1st of November, 1838, up to the' 24th of March, 1839, ' making 144 days, at f 5 per day each,. - $ 2,880.00

      “ Cr. .
    By cash advanced Samuel Parks, as per receipt on
    the rolls,........$ 1,600,00
    Balance due, ........$ 1,280.00
    “Received of John Ross, Superintendent of Cherokee emigration, one thousand two hundred and eighty dollars, in full for the balance due of the above account.
    “ Signed in duplicate.
    “ Park Hill, Cherokee Nation, Dec. 13th, 1841.
    “ G. W. Parks,

      Executor of Samuel Parks, deceased.”
    In December, 1842, the Cherokees called upon Ross for certain information, to which he replied that “ he had no moneys in his hands subject to legislation.”
    In July, 1844, Parks brought an action against-Ross in the Circuit Court of the United States for the District of Columbia. The declaration contained the common, money counts. In March, 1848, the cause came on for trial, when the jury, under the instructions of the court, found a verdict for the defendant. Upon the trial, "the defendant took two: bills of exception to the admission of evidence, which were not argued in this court in the posture of the case, and which would not be inserted in this report, except that the plaintiff’s bill of exceptions adopts them, and refers to the recapitulation of evidence contained therein.
    “ Before the jurors aforesaid retired from the bar of the court here, the said plaintiff, by his attorney aforesaid, filed in court here the following bills of exceptions, to wit: —
    “ Defendant's First Bill of Exceptions.

    “ George W. Parks, Administrator of Samuel Parks, v. John Ross.
    “ On the trial of this cause the plaintiff, to maintain the issue on his part, offered evidence tending ’to show that the plaintiff’s intestate hired four wagons to be used, and the same were in fact used, in the emigration of the Cherokee nation to the west of the Mississippi, under the arrangement with General Scott, in the year 1838, and produced and read to the jury the-account and receipt of the plaintiff, as follows (copied in pages 364,365.); and also offered to read in evidence the account presented by the defendant to the government of the United States, as follows (copied in page 364); with account of Detachment No. 11, in which detachment it was admitted the said wagons were employed, and were part of the fifty-one wagons therein mentioned; and also the opinion and decision of Mr. John Bell, Secretaiy of War, thereon; and the preamble and resolutions of the Cherokee nation referred to therein (copied in page 364); and the requisition of the War Department ; and the warrant on the Treasury; and the receipt of the defendant; to all which offered evidence the defendant, by his counsel, objects; but the court overruled the said objection, and permitted the same to be read; and the defendant, by his counsel, excepts thereto, and prays the court to sign and seal, and cause to be enrolled, this his first .bill of exceptions, which is done accordingly, this 10th day of April, 1848.
    “W. Cranch,
    Jas. S. Morsell.”

      Defendant’s Second Bill of Exceptions.

    “ George W. Parks, Administrator of Samuel Parks, v. John Boss.
    “ Richard Taylor’s Testimony.

    “ On the further trial of this cause, and after the evidence contained in the foregoing bill of exceptions made part hereof, the plaintiff, further to maintain the issue on his part joined, gave evidence to show and prove, by Richard Taylor, (the said evidence being noted in writing by the defendant’s attorney,) that he is a Cherokee, and was one of the delegates originally appointed by that nation, to enter into an arrangement with , the United States for the transportation and emigration of the said Cherokee nation to the country set apart for them west of Mississippi River; that he had charge of the business of ) generally superintending the wagons of one detachment, in which the-wagons of the plaintiff’s intestate were employed; that shortly after they.arrived in the Cherokee country he was paid off by John Ross,-and the accounts of all those whose wagons had been employed were settled and adjusted by the committee or delegates, and' they were paid for eighty days’ travel, and the balance was left unpaid till the money could be received from the United States; the committee or delegates of the emigration were all present with Ross; they were appointed by the nation in council, before they started for the West, and never delegated their wholé power to John Ross, but always acted when they were needed. John Ross had a general order and power to pay the claims ¿rising out of the emigration; he received the money and paid it out. Several years ago he paid over to the. Cherokeee nation ¡$ 125,000, ■which had been saved from the expenses of the emigration; and being asked by the plaintiff what bad become of the $ 180,000 received, he replied: Just before I left home to come to the United States, Mr. Ross made a final settlement with the nation of all the money received by him for the emigration; being asked by plaintiff, he says it was in writing, and plaintiff insists his answer is not evidence. He states that he is one of tfie executive council of the nation, and now a delegate from the nation to the United States.
    “ Being cross-examined he says: The only power Mr. Ross had to pay claims was to pay such claims as had been passed by the committee or delegates; that he does not know out of what fund Mr. Ross could have saved the f> 125,000, except the money received for return wagons; that no money ever was paid to any person, nor any claim ever presented by any person to the committee or delegates, for ‘ return wagon money ’; that the witness himself made the contract with the plaintiff’s intestate for the hire of his wagons, and no contract' was made for, and no reference made to, any return wagons, for it was understood they were all to remain in the nation; that plaintiff’s intestate married the sister of witness, and was a citizen of the Cherokee nation; that he sold and; disposed of his wagons and teams in the Cherokee nation, except one, with which he returned to the State of Tennessee,'for the purpose, as he stated to witness, of bringing out his family; he did not return, but died in Tennessee, and he never in his lifetime to 'witness, or with his knowledge, set up any claim for return wagons; and witness was present when the account of plaintiff’s intestate was settled, and afterwards, when the full balance was paid to the plaintiff ;• that there were various incidental expenses not estimated for originally, but which had to be paid by the nation, growing out of the delays and other causes in the emigration; that they were paid by the nation, ■ and witness does not know out of what fund they could have been paid, except out of the return wagon money; and witness believes, from the facts he has stated, that, the money so paid over by Ross to the nation, ¡and the incidental expenses of the emigration, were paid out of that fund.'
    “ And thereupon, and after the testimony of the said Richard Taylor had been given, the plaintiff further offered to read in evidence from a certain printed document, purporting to be Senate Document 298, 1st Session 29th Congress, two certain papers as follows, marked B and C, (copied in record,) and to lay a foundation therefor gave to the court the following evidence (evidence of JWke and J. R. Rogers, copied in record) ; and the defendant objected to the admissibility of the said papers so offered to be read in evidence, maintaining there was no sufficient foundation laid for them as secondary proof; but the court overruled his said objection, and permitted the same to be read in evidence, and the same was read accordingly, and the defendant excepts thereto, and prays the court to sign and seal this his bill of exceptions, which is done accordingly ; and the same is ordered to be enrolled according to the statute, this 10th day of April, 1848.
    “ W. Cranch,
    James S. Morsell.”
    (Then followed Mr. Burke and Mr. Rogers’s statements, which are omitted.)

      Plaintiff's First Bill of Exceptions'.

    i{ George W. Parks, Administrator of Samuel Parks, v. John Ross.
    “ And the evidence stated in the foregoing bill of exceptions, made part hereof, having been read to the jury, the plaintiff rested; and thereupon the defendant prayed the court to instruct the jury, that, upon the whole evidence aforesaid, if the same shall be believed by the jury, the plaintiff is not entitled to recover in this action. >
    “ Which instruction the court granted; to the granting of which the plaintiff, by his counsel, excepts, and prays the court to sign and seal this his bill of exceptions, which is accordingly done; this 11th day of April, 1848.
    “ W. Cranch,
    1 James S. Morsell, James Dunlop.

      Plaintiff's■ Second Bill of Exceptions.

    “ George W. Parks, Administrator of Samuel Parks, v. John Ross.
    “ And thereupon, and upon the whole evidence in the said first and second bill of exceptions of said defendant contained, made part hereof, the defendant by his counsel prays the court to instruct the jury, that, if the same is believed by the jury to be true, the plaintiff is not entitled to recover in this action ; -which instruction the court granted; to the granting of which the plhintiff, by his counsel, excepts, and prays the court to sign, seal, and enroll this his exception, which is accordingly done, this 11th day of April, 1848.
    “ W. Cranch,
    James Dunlop.”

      The counsel for the plaintiff sued out a writ of error, and brought the case up to this court.
    It was argued by Mr. Green, for the plaintiff' in error, and Mr. Bradley, for the defendant in error.

      Mr. Green, for the plaintiff in error,
    contended that, apart from the testimony of Richard Taylor, it is clear from the evidence that the defendant claimed and received from the United States government the money “ in trust ” for those who were entitled to it by having furnished transportation ; that the plaintiff’s intestate .was one of those who furnished transportation ; and that defendant, having claimed and received the money, as trustee, is liable in this action. See 2 T. R. 370; Cary v. Curtis, 3 Howard, 247, 249; 1 Harris & Gill, 258.
    But the Circuit Court treated the defendant as the head or executive of a foreign and independent nation, and held that, having received the money as such, he was responsible only to the nation, and could not,jure gentium, be personally liable.
    This he contended was clearly a mistake both of the facts and of law, and referred to the Cherokee resolutions and to 5 Peters, 1.
    If it be contended, on the strength of Taylor’s evidence, that the defendant has paid over to the nation, and thereby discharged his liability, it is answered, that defendant could not discharge himself by any settlement with or payment over to the nation, after notice, and pending this suit. See 10 Peters, 158; Bend v. Hoyt, 13 Peters, 263, 267.
    But there is no evidence that defendant has paid over to the nation; the only evidence to that effect is found in Taylor’s testimony, as follows: “ Just before I left home to come to the United States, Mr. Ross made a final settlement with the nation of all the money received for the emigration.” This does not say that he paid over to the nation the amount received on account of Parks’s wagons, or that he showed any voucher of payment to Parks. He might have paid to the nation all except the amount due Parks, and said that he retained that on-account of this Very -pending suit. Moreover, Taylor’s evidence shows that the settlement was in writing. Then the written .account ór a duly certified copy should have been produced (1 Greenleaf’s Evidence, 82, 84, 88).. and the plaintiff had a right to rule out his evidence on this point. <.
    The statement made by the witness; Taylor, that “ the committee or delegates of the emigration never delegated their whole power to John Ross,” is contradicted by the Cherokee resolutions of the 11th of November, 1840; and by a comparison of his testimony with the other evidence in the case, it will be seen that all the material statements therein contained, affecting the plaintiff’s right to recover, were in conflict with, and disproved by, the' other evidence in the cause. Though called to the stand by the plaintiff, the latter was .not conclusively bound by his statements (11 Gill & Johns. 28 ;■ 1 Gill, 84; Greenleaf, § 443); nor-were the jury, whose province it was to decide between the conflicting evidence.
    It will be contended for the plaintiff, that, the evidence being contradictory, or conducing to different results, the effect of the instructions given by the Circuit Court was to withdraw from the jury their proper functions to determine the facts upon the evidence, and to take from them the right of weighing thé effect and sufficiency of the evidence; and that, in so far as the instructions given by the Circuit Court were founded on the testimony of the witness Taylor, disregarding the conflict between that and the other evidence in the cause, said instructions were founded on part of the evidence only, and therefore improper. Greenleaf v. Birth, 9 Peters, 298; United States v. Tillottson, 12 Wheat. 181; Hurt v. Miller, 3 A. K. Marsh. 336; Browning v. Grady, 10 Ala. 999; 2 Gill & Johns. 403.

      Mr. Bradley, for defendant in error.
    The defendant will endeavor to show that the court did not err in giving the instruction.
    There was no evidence legally, sufficient to authorize the jury in finding any undertaking on the part of Ross to pay plaintiff’s intestate for return wagons.
    There was no evidence from which the jury could infer that • Ross was personally liable therefor.
    There was no evidence tending to prove the material fact of any contract, expressed or implied, between Ross and the said Parks, by which Ross became liable to pay for the return wagons.
    The testimony in the cause is so slight and inconclusive, that no rational mind could draw the conclusion therefrom that Ross had come under obligation to pay the plaintiff the return wagon bill claimed by him. There was no evidence conducing to prove the issue on behalf .of the plaintiff.
    , The rule in Maryland on this subject is well settled. The Court of Appeals of that State has said : —
    It is the peculiar province of the court to determine all questions of law arising before them; and the undoubted right of. the jury to find all matters 6f fact when'evidence legally sufficient for that purpose is submitted for their consideration.
    Tyson v. Richard, 3 Har. & Johns. 109; Dale v. Fassett, Lessee, Ib. 119; Ford v. Gwinn, Ib. 496; Saunders v. Webster, Ib. 432; Benson v. Hobbs, 4 Har. & Johns. 285; Schwartz v. Tyson, Ib. 291; Benson v. Anderson, Ib. 315; Mercer v. Walmsley, 5 Har. & Johns. 32; and see Davis v. Davis, 7 Har. & Johns. 39; Coale v. Harrington, 7 Har. & Johns. 156; Gist v. Cockey, Ib. 140, 141; Barger v. Collins, Ib. 220; Riggin v. Patapsco Ins. Co., Ib. 295.
    Where there is a failure of evidence in respect to any one material fact involved in the issue, the evidence is .not legally sufficient' to warrant the jury in finding the issue it is offered to sustain; and it is the duty of the court to instruct them accordingly. Cole v. Hebb’s Admr., 7 Gill & Johns. 20.
    To have granted such an instruction would have been to have authorized the jury to find a fact, of which no testimony legally sufficient to warrant such a finding had been submitted to their consideration. Chesapeake Ins. Co. v. Allegre’s Admr., 2 Gill & Johns. 172.
    “ Where there is no evidence applicable to the issue, or tending to prove any material fact, a total failure of evidence, the court will direct the jury to find accordingly.” Davis v. Barney, 2 Gill & Johns. 404.
    “ From the view which we have taken of the testimony in this cause, we cannot approve the instruction given to the jury. They were instructed, that they might draw conclusions and •infer facts which the' evidence before' them was not legally sufficient to warrant them in finding.” McNulty v. Cooper, 3 Gill & Johns. 219.
    “ Conceding that the court'were right in admitting the evidence, their instruction is clearly erroneous, as they submitted to the jury the finding of a fact, of which no testimony legally sufficient for that purpose had been adduced before them. Thus they authorized them to .find that the profits of the real estate had been applied to the maintenance of Elizabeth, her brothers and sisters, when not a scintilla of proof had been offered to show such application. On the contrary, the accounts showed that he had charged himself with them as part of the personal estate, and had either paid them away in satisfaction, of debts and disbursements, or held them in his hands as part of the general balance of the intestate’s personal estate.” Burch v. Mundell, 4 Gill & Johns. 452.
    Here the proof is, he had applied the return wagon money to incidental expenses in part, and hád paid over the residue to the nation.
    Where a plaintiff offers no testimony, or such as is so slight and inconclusive that a rational mind cannot draw the conclusions sought to be deduced from it, it is the right of the court* and their duty, when applied to for that purpose, to instruct the jury that he is not entitled to recover. Morris v. Brickley, 1 Har. & Gill, 107.
    This prerogative of the court is never exercised-, but in cases where the evidence is so indefinite and unsatisfactory, that nothing but wild, irrational conjecture, or licentious speculation, could induce the jury to pronounce the verdict which is sought at their hands. Ferguson v. Tucker, 2 Har. & Gill, 189, 190.
    See further cases in Maryland.
    Sanderson v. Marks, 1 Har. & Gill, 252; Morris v. Brickley, Ib. 107; Caton v. Shaw, 2 Har. & Gill, 13; Smith v. Edwards, Ib. 411; Duvall v. Farmers’ Bank, 7 Gill & Johns. 78; and Gray v. Crook, 12 Gill & Johns. 236.
    And in this court.
    The error complained of is, that the Circuit Court did not give- an opinion on a point proposed ; the court was certainly bound, to give an opinion, if required, upon any point relevant to the issue. Douglass v. McAlister, 3 Cr. 297. But it. is equally clear, the court cannot be required to give to the jury an opinion on the truth of the testimony in any case. Smith v. Carrington, 4 Cr. 62. It is the province of the jury to weigh and decide upon the sufficiency of the evidence. Where there is no evidence to prove a material fact,’ the court are so bound to instruct the jury, when requested; but they cannot take from the jury the right of weighing the evidence, and determining what effect it shall have. Greenleaf v. Birth, 9 Peters, 299; S. P. Ches. & Ohio Canal Co. v. Knapp, Ib. 567, 568; Scott v. Lloyd, Ib. 445, 446.
    In trials at law, whilst it is' invariably true that the decision of questions upon the weight of evidence belongs exclusively to the. jury, it is equally true that, whenever instructions upon evidence are asked from the court to the jury, it is the right and duty of the former to judge !of the relevancy, and by necessary implication, to some extent, of the certainty and' definiteness of the evidence proposed. Irrelevant, impertinent, and immaterial statements a court cannot be called upon to admit as the groundwork of instructions; it is bound to take care that the evidence on which it shall be called to act is legal, and-that it conduces to the issue on behalf of either the plaintiff or of the defendant. Roách v. Hulings, 16 Peters, 323.
   Mr. Justice GRIER

delivered the opinion of the court.

On the trial of this cause below, after the plaintiff had closed his testimony, the defendant’s counsel -requested the court to instruct the jury, “ that, if the evidence is believed by the jury to be true, the plaintiff is not entitled to recover.” This instruction was given by the cpurt, and excepted to by plaintiff. Its correctness is the question for our decision.

It is undoubtedly the peculiar province of the jury to find, all matters of fact, and of the court to decide all - questions of law arising thereon. But a jury has no right to assume the truth of any material fact, withdut some evidence legally sufficient to establish it. It is, therefore, error in the court to instruct the -jury that they may find a material-fact, of which there is no evidence from which it may be legally inferred.

Hence the practice of granting an instruction like the present, which makes it imperative upon the jury to find a verdict for the defendant,'and which has in many States superseded the ancient practice of á demurrer to evidence. It answers the same purpose, and should be tested by the same rules. A demurrer, to evidence admits not only the facts stated therein, but also every conclusion which a jury might fairly or reasonably infer therefrom. -

The question for our consideration is, therefore, whether, the evidence 'submitted, by the plaintiff in this case was sufficient to authorize the jury in finding any contract ,or undertaking, either express or implied, on the part of John Ross, the defendant, to pay the money demanded in the declaration.

A brief summary of the admitted facts of the case will, we think, sufficiently demonstrate the correctness of the instruction given-by. the court below, and that, if the defendant had . demurred to the evidence in form, he would have been entitled to the judgment of the court.

The plaintiff’s intestate was a citizen of the Cherokee nation. In 1838, a large portion of this nation, of which John Ross was the principal chief, had consented to emigrate to the west of the Mississippi River. The Cherokees were permitted to conduct their emigration by their own agents, the expense thereof to be advanced by the United States but of certain moneys or money due to the Cherokees by a former treaty. They accordingly appointed certain persons of their own nation as delegates or special agents to act in behalf of the nation. Of this agency John Ross was.the chief, and acted as general superintendent. As such, he received large sums of money from the treasury of the United States for the purpose of defraying the expenses of the emigrationj on estimates approved by General Scott. Among these estimates was one for hire of fifty-one wagons and teams, amounting in the whole to $ 51,000. In this amount was included an item of $ 14,280, as necessary to pay the hire and expenses of the wagons on their return, at the rate of seven dollars per day. The plaintiff’s intestate was owner of four of the fifty-one wagons anff teams employed. After the emigration' was ended, the- delegates or agents of the nation settled the accounts, and among others that of plaintiff’s intestate, who received the amount of his account and gave a receipt in full. Nothing was allowed him for return wagon hire in the account settled, and none was- claimed by him, as he was himself a Cherokee, and intended to reside in the nation. Since his death, this suit has been instituted by his administrator, on the mistaken notion, that, because in the money of the nation received by John Ross there was included a sum of $ 14,280 estimated as necessary to pay return wagon hire, therefore the -plaintiff’s intestate was entitled to his proportional share of it,, without any regard to the fact, whether the. Cherokees were willing to allow it to him, or whether it was due to him on his own contract with their agents. There was no evidence whatever tending to show a special contract by John Ross personally to pay for the teams and wagons, either for going or returning. The contract of plaintiff’s intestate was with the Cherokee nation, through their known public agents or officers. John Ross was the superintendent, treasurer, and disbursing officer. The money in his possession was the money of the nation; the plaintiff’s intestate, and all who were employed in assisting the nation to emigrate, were fully aware that John Ross was acting as a public officer, and dealt with him as such.

' Now, it is an established rule of law, that an agent who contracts in the name of his principal is not liable to a suit on such contract; much less a public officer, acting for his government. As regards him the rule is, that he is not responsible on any contract he may make in that capacity ; and wherever his contract or engagement is connected with a subject fairly within the scope of his authority, it shall be intended to have been made officially, and in his public character, unless the contrary appears, by satisfactory evidence of an absolute and -unqualified engagement to be personally liable.

The Cherokees are in many respects a foreign and independent nation. They are governed by their own laws and officers, chosen by themselves. And though in a state of pupilage, and under the guardianship of the United States, this government has delegated no power to the courts of this District to arrest the public representatives of agents of Indian nations, who rhay be casually within their local jurisdiction, and compel them to pay the debts of their nation, either to an individual of their own nation, or a citizen of the United States.

The judgment of the Circuit Court is therefore affirmed, with costs.

Order. .

This cause came on to be "heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.


source: Caselaw Access Project

author: Mr. Justice WOODBURY

license: Public Domain

text:
    Absalom Fowler and Noah H. Badgett, Appellants, v. Ayres P. Merrill.
    The act of Congress passed on the 24tb of September, 1789 (1 Stat. atLai'ge, 88, 89), provides that ex parte depositions may be taken before a judge of a County Court.
    Where a Probate Court is organized for each county in a State, is a court of record, and has a seal, it is sufficient if a deposition under that act be taken before a judge • of the Probate Court.
    Although the day when a mortgage was executed was not stated, yet where it bore a date in its commencement, and its acknowledgment and date of record were both given, and both of them preceded a sheriff’s sale of the mortgaged property, it was certain that the mortgage was executed before the sale under execution.
    Although, when the mortgage was recorded, the laws of the State did not make the mere recording cotivey the title when the personal property thus mortgaged remained in the possession of the mortgagor, yet they sanctioned the mortgage unless it was made without good consideration, and opposed by a bond fide subsequent purchaser, who had no notice of its existence.
    But the fact of recording the mortgage tended to give notice of its existence, and in the present case-the evidence shows that the purchasers at the sheriff's sale had notice of the mortgage. - .
    Such purchasers must allege that their want of notice continued up to the time of making actual payment; a want of notice merely extending to the time of making the purchase is not enough. Payment might have been refused, and then they would not have been injured.
    Moreover, between the time when the mortgage was in fact recorded and the time of the sheriff’s sale, the State passed a law making such recorded mortgages valid. ’
    The increase or offspring of slaves belong to the owner of the mother.
    The decree of the Circuit Court being that the purchasers at the sheriff’s sale should either surrender the. property to, the prior mortgagee, or pay the value thereof, such value was properly computed as it was at the time of rendering the decree. ■-
    ,,The hire of the slaves was properly charged as commencing when the prior mortgagee filed his bill for a foreclosure. <-

    This was an appeal from the Circuit Court of the United States for the District of Arkansas, sitting as a court of equity.
    It was a' bill-filed by Merrill, the appellee, against Fowler and Badgett and other persons, under the following circumstances.
    In April and June, 1837, N. L. Williams made the following notes: —
    11,428 Natchez, 1st April, 1837.'

      “ Two years after date, P promise tó pay J. L. Dawson, or order, the sum of eleven thousand four hundred and twenty-eight dollars and twenty-two cents, value received. Negotiable and payable at the Planters’ Bank of Mississippi, Natchez.
    (Signed,) N. L. Williams.”
    “ f> 1,150. Natchez, 1st Tune, 1837.

      “ Twelve months after date, I promise to pay J. L. Dawson, or order, eleven hundred and fifty dollars, value received, negotiable and. payable at the Planters’ Bank of Mississippi,
    (Signed,) N. L. Williams.”
    Making together the sum of $ 12,578.22.
    These notes, indorsed by Dawson, were also indorsed by Merrill, and discounted for Dawson’s use by the Planters’ Bank of Mississippi at Natchez.
    In order to secure Merrill, Dawson -executed a mortgage to him of certain negroes then on the plantation of Dawson, in Arkansas. There were'nine negro men, six women, and three-boys included in the mortgage. As this mortgage was much discussed in the argument, it is proper to give its commencement and' acknowledgment: —
    “ This indenture, made this 25th day of November, in the year qf our Lord 1837, between James L. Dawson, of the county of Jefferson, State of Arkansas, of the one part, and A. P. Merrill, of the city of Natchez, State .of Mississippi-, of the other part, witnesseth: That the said James L. Dawson, in consideration of the debt to be secured, hereinafter mentioned, and of oiie dollar to him in hand paid by the said A. PI Merrill, the receipt whereof is hereby acknowledged, doth give, grant, bargain, sell, and convey unto the said A. P. Merrill, the following-described negroes, now on the plantation of the said James L. Dawson, known by the name of Woodstock, lying in the county of Jefferson, State of Arkansas, viz.” &c., &c.
    “ To have and to hold the said negroes unto the said A. P. Merrill, his heirs and assigns, to the only proper use of the said A. P. Merrill, his heirs and assigns for ever/’ Frovided, that if the sqid James L. Dawson, his executors and administrators, or either of them, do pay, or cause -to be paid, unto the said A. P. Merrill, his executors, administrators, or assigns, the just and full sum of $ 12,578.22, as mentioned in. two certain notes of the following tenor, viz. No. 1, drawn by N. L. Williams, dated 1st April, 1837, at two years, for $ 11,428.22 ; 2 do. do., 1st June, 1837, twelve months, $ 1,150, indorsed by J. L. Dawson and A. P. Merrill, and payable at the Planter’s Bank of Mississippi, Natchez, then these presents to be void ; and the said James L. Dawson doth covenant with the said A. P. Merrill, that he, the said James L. Dawson, his executors, administrators, or assigns, shall and will pay, .Or cause to be paid, to the said A. P. Merrill, his executors, administrators, or assigns, ■ the said sum of $ 12,578.22, as aforesaid, on the day above limited for the payment thereof.
    “ In testimony whereof, the said James L. Dawson has hereunto set his hand and seal, the day and “year above written, (Signed,) Jambs L. Dawson.
    Signed, sealed, and delivered in the presence of ■—
    “ State of Mississippi, Adams County..

    “ Personally came before me, Judge of the Probate Court in and for the county aforesaid, the within-named Jame3 L. Dawson, who acknowledged that he sighed, sealed, and delivered the within instrument in writing, as his act and deed,-for the purposes and intents, and on the day and year, therein- méñtioned.
    “ Given under my hand and seal, this 24th day of November, A. D. 1837.
    “ C. Rawlings, Judge of Probate.” .
    On the 29th of December, 1837, "this mortgage was recorded in Arkansas. ' -
    On the 12th of March, 1841, the President and Directors and Company of the Commercial Railroad Bank at Vicksburg, suing for the use of William W. Frazier, Thomas. E. Robbins, and William S. Bodley, obtained a judgment against Dawson in the Circuit Court of Pulaski County (State court of Arkansas). The amount of the judgment was,—
    Debt, . .. .. . . • . . $9,688.00
    Damages, . . ... . .1,065.00
    Costs, .. . . ■ . . . 8.95 .
    $ 10,761.95
    On, the 24th of April, 1841, a fieri fctcias was. issued upon this judgment, and levied upon certain lands and eleven of the negroes mentioned in the mortgage:
    After an alias writ, the property was exposed to sale on the 11th of October, 1841. Fowler became the purchaser of some of thé negroes, and on the next day the sheriff executed a deed to ■ him, reciting the judgment and execution, and concluding thus:
    w Now, know all men by these presents, that I, John J. Hammett, as such sheriff as aforesaid, for and in consideration of the premises, and for and in consideration of the said aggregate sum of $ 2,966.66§, to him, the said John J. Hammett, as such sheriff, in hand paid by the said Absalom Fowler, the receipt whereof is hereby acknowledged, have, granted, bargained, sold, and delivered, and do hereby grant, bargain, sell, and deliver; all of said slaves above described to the said Absalom Fowler, hereby conveying to him, and to his heirs and assigns for ever, all of the right, title, estate, interest, claim, and demand of the said James L. Dawson, of, in, and to the same. Not making^ myself hereby responsible for the title of said slaves, but only conveying, as such sheriff, the'title-of the said James L. Dawson in and to the same.
    “ Signed, sealed, and delivered, this 12th day. of October, A. D. 1841. Interlined on second and third pages before signed.
    “ John J. Hammett,

      Sheriff of Jefferson County, Arkansas”

    Badgett subsequently purchased some of these slaves from Fowler, and other persons, who were made defendapts-in the bill filed by Merrill, were purchasers at the sale.
    On the 4th of March, 1842, Merrill paid the notes of Wit Jiams, which had been discounted for Dawson’s use by the Planters’ Bank of Mississippi.
    On the 7th of September, 1842, Merrill filed his bill in the Circuit Court of the United States for Arkansas, against the following persons; viz. “ James L. Dawson, who is . a citizen of the State of Arkansas, but now temporarily, residing in the Indiap country west of the State of Arkansas, James Smith of Arkansas County, William Dawson of Jefferson County, Samuel C. Roane of Jefferson County, Samuel Taylor of. Jefferson County, Nathaniel H. Fish of, Jefferson County, Garland Hardwick of Jefferson County, Absalom Fowler, of Pulaski County, Noah H." Badgett of Pulaski County, and all of.whom are,citizens of the State pf Arkansas, and Sophia M. Baylor, who is a citizen of the State of Arkansas, but now temporarily residing at Fort Gibson, in the Indian country, west of the State of Arkansas.”
    The bill stated the circumstances mentioned above, and then averred that the defendants purchased the slaves with notice of the mortgage. It then specially interrogated Fowler and Badgett, among other things, as to whether they ever had actual notice of the mortgage, and if so, when; and also as to the value of the slaves at the time they came into their possession, and their value at the time of filing the bill; and as to the worth of their services or hire after they came into defendants’ possession; and whether Jackson and other children were the issue of the mortgaged slaves; and also as to the identity of the slaves themselves.
    Defendants answered, setting up a bona fide purchase, without notice, at the sheriff’s sale, and denying, as far as they knew or believed, all of the material allegations of the bill, and . alleging that the mortgage was fraudulent; that Dawson had remained continuously in possession of the slaves, contrary to the terms of the deed; that they did not' know whether' the' slaves were the same, and denied positively that Jackson was the issue of any one of the mortgaged slaves. In response to the interrogatories as to the value, hire, &c., Fowler answered, that Eliza, one purchased by him, and sold to Badgetf, died before the commencement'of the suit; that, at the time he purchased them, they were worth about what he gave for them,’ to wit: Tom, $ 533.33i ; Phcebe and Jackson, $ 666.66|; Mary and Henry, $ 500; Maria and her child, $ 600; Eliza, $ 466.661;’ and that, since the sale, the value of slaves generally, and these also, had depreciated at least one fourth ; and that their hire, deducting necessary expenses, was worth, per annum, for Tom $ 70, Maria $ 50, Mary $ 40,. Phcebe $ 40; and for the others, nothing. Badgett answers, also, that Phoebe was worth $ 400, Eliza $ 350, Jackson $ 65, and that Eliza had died, &c., and that their hire was not worth more than $ 40 per annum.
    The valuation preparatory to the sheriff’s sale was as follows : —
    Valued at Sold for
    Tom,' . . . . $800 $'533.33
    Phcebe and Jackson, . . 1,000 666.66
    Mary and Henry, . . 750 500.00
    Maria and her child, . . 700 600.00
    Eliza,. .■ . ■ . ; 700- 466.66'
    It is not necessary to trace the progress of the suit through its various steps. Many depositions were taken under a commission, and otherwise, and exceptions to their, admissibility filed. One of them, which is the subject of a part of the opinion of this court, will be particularly mentioned for that reason. The point, as raised and decided in the Circuit Court was as follows : —■ .
    “ The fourth exception is, ‘ that the deposition of Henry D. Marideville, taken at Natchez, on the 8th of March, 1845, was taken without any sufficient notice having been served on said defendants of the time and place of taking the same.’
    “ The answer to this exception is, that where a deposition is taken, according to the acts of Congress, at greater distance from the place of trial than oné hundred miles, no notice is required. By the certificate of the magistrate before whom the. deposition was taken, it appears that the witness lives more than one hundred miles from this place; that his certificate is competent evidence of the fact, is established by the adjudication of the Supreme Court in the case of the Pacapsco Insurance Company v. Southgate, 9 Peters, 617. The court say: 1 It was sufficiently shown, at least prima fade, that the witness lived at a greater distance than one hundred miles from the- place of trial. This is a fact proper for the inquiry of the officer who took the deposition, and he has certified that such is the residence of the witness. In the case of Bell v. Morrison, 1 Peters, 356, it is decided that the certificate of the mag-, istrate is good evidence of the facts therein stated, so as to entitle the deposition to be read to the jury.’ This exception is overruled;
    “ The fifth exception is to the competency of the evidence contained in the deposition of Mandeville. The decision of this exception will be reserved to the final hearing.
    “ The sixth exception is to the authority of the magistrate before whom Mandeville’s deposition was taken. It was taken before Thomas Fletcher, judge of the Probate Court within and for the county of. Adams, and State of Mississippi, and the inquiry is, whether he is authorized by the acts of Congress to take depositions. By the 30th section of the Judiciary Act of 1789, depositions de bene esse may be taken before any judge of a county court of any of the United States. Is Thomas. Fletcher a judge of a county court of any of the United States ? In order to decide this question,?yre must look into the laws of the State of Mississippi. That this court is bound to take notice of the laws.of Mississippi is• clearly settled.by the Supreme Court of the United States in the case of Owings v. Hull, 9 Peters, 625. The court say, that the laws of all the States in the Union are to be judicially taken notice of, in the same manner as the laws of the United States are to be taken notice of,, by the Circuit Courts of the United States. Looking, then, into the laws of Mississippi, we find a Court of Probates established in each county of the State, with jurisdiction in all matters testamentary, and of administration of orphans’ business; in the allotment of dower; in cases of idiocy and lunacy, and of persons non compos mentis (see \ 18 of the 4th article of the Constitution, and the acts of the legislature of T833, law 444). By the fourth section of the act it' is .provided, that the Court of Probate in each county shall procure a seal for said court, thereby constituting it a court of record.
    “ The question then is, Is this a county court ? It is a court of record established in each county in the State, and styled ‘ the Probate Court of the County of ’ I am clearly of opinion, that it is such a county court as is contemplated by the act of Congress, and that depositions may be taken before • the judge thereof. The deposition of Mandeville is a deposition taken de bene esse, and may be read on the final hearing, unless the defendant shall show that the witness has removed within the reach of a subpoena after the deposition was taken, and that fact was known to the party, according to the decision of the Supreme Court in the case of the Patapsco Insurance Company v. Southgate, 5 Peters, 617. This' exception is therefore overruled.”
    Roane and others of the defendants made a compromise with Merrill, which was sanctioned by the court, and the bill was dismissed as to Sophia M. Baylor.
    On the 23d of August, 1847, the Circuit Court' made a long explanatory decree, of which the following is the conclusion : —
    “ This cause came on to be heard at this term, ánd was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, to wit: That the bill, as.to the defendant, Sophia M. Baylor, be, and the same is hereby, dismissed, with her costs, to be paid by her to the said complainant. And it is further ordered and decreed, that unless the sum of $ 18,934 shall be paid or tendered to the said complainant, or his solicitor, by the remaining defendants, or any or either of them, on or before the first day of the next term of this court, they, the said defendants, are from thence-' forth to stand absolutely debarred and foreclosed of and from all right, title, interest, and equity of redemption of, in, and to the said mortgaged property .in the bill mentioned, and a sale of said mortgaged property decreed, if' a sale thereof shall be deemed expedient by this court. .And the question.of hire of the mortgaged property, of costs, and all other questions in the cause not now decided, are reserved to the further decree of this court.
    “ And it is,further ordered, that this cause be, and the same is hereby, continued until the next term of this court.
    “ At the next term of the court a final decree was passed, fixing the value of the slaves and their hire, sanctioning the compromise made by some of the defendants, ordering a restitution of the slaves held by the rest, or, in case of neglect or refusal to restore, holding them responsible for the assessed value of such slaves.”
    Fowler and Badgett appealed from this decree to this court.
    It was argued by Mr. Laivrence, for the appellants, and Mr. Addison, for the appellee.
    The points made for the appellants, were the following.
    The appellants insist that the deposition of Mandeville, taken on the 8th of March, 1845, ought to have been suppressed on their exceptions.
    It was taken before a judge of the Probate Court of Mississippi, an officer wholly unauthorized by sect. 30 of the act of September 24th, 1789, to take depositions ex parte, or by any other act of.Congress. See 1 Stat. at Large, pp. 88,89, § 30.
    And the argument of the court below, that, because, in that State there is a Probate Court established in each county, it is necessarily a county court, within the meaning of the act of Congress, is conceived to be wholly inconclusive and untenable. Upon the same reasoning, a court would be bound to infer that the Circuit Court, or Board of Police, established there in each county, is a county court. And if inferences of this kind be indulged, what may not be inferred ? (See Const, of Miss., art. 4.)
    Indeed, this Board of Police, which is entirely distinct from the Probate Court, is the substitute and legitimate successor of an abolished county court, inheriting nearly all of its powers. ■ See Const, of Miss., art. 4; Hutchinson’s Miss. Code (A. D. 1848), p. 710.
    And if there be no county court there, either in fact or in name, by what authority could the Circuit Court for the District of Arkansas presume one into existence ? And especially under a statute (Act of 1789, § 30) which admits of no presumptions whatever; and under which depositions taken must always strictly and rigidly conform to its words, or. keep closely within their literal meaning. Bell v. Morrison, 1 Peters, 351 et seq. 1 Cond. R. 535; U. States v. Smith, 4 Day, 127.

      And if. it be insisted that the deposition was taken on interrogatories, it was equally inadmissible ; because, in such ease, the court must always name the commissioners. See Rule 67 of this court, regulating practice in equity.
    And this deposition, as also his third and last deposition, ought to have been suppressed, for the incompetency of the. matter contained in them. As to matters taken from the books of the Bank, the statements as to the protest, a letter of Dawson, &c., &c.; because he' nUther produced the originals and identified them, nor deposed that he knew the matters to be true, otherwise than that they were so on the books, &c. See State v. Rawls, 2 Nott & McCord, 332; Peake’s Ev. 190; Doe v. Perkins, 3 Durnf. & East, 754; 1 Phil. Ev. (by Cowen and Hill), 289.
    The depositions thken by Merrill, of Trapnall, Dofris, Walker, White, Bogy, apd Hammett, ought to have been suppressed, They were tó be taken on thirty-five interrogatories; only, a part of which were propounded to each Witness.
    And the law is well settled, as it seems, that each and evéry interrogatory must be put to each and every witness, and answered by .him, or the depositions cannot be read. Richardson v. Golden, 3 Wash. C. C. 109; Bell v. Davidson, 3 Ib. 332 et seq.; Dodge v. Israel, 4 Ib. 323; Kimball v. Davis, 19 Wend. 439; Brown v. Kimball, 25 Ib. 265; Withers v. Gillespy, 7 Serg., & Rawle, 16; Ketland v. Bissett, 1 Wash. C. C. 144; Winthrop v. The Union Ins. Co., 2 Ib. 12.
    And upon the ■ exclusion of the depositions excepted to, or only Mandeville’s, Merrill has nothing remaining upon Which his decree can stand; he has no case at all.
    • An absolute sale of chattels, where the possession remains with the vendor, is void as to his creditors. Sturtevant v. Ballard, 9 Johns. 337 et seq.; Meeker v. Wilson, 1 Gallis. C. C. 422; Ryal v. Rowles, 1 Ves. sen. 359; 2 Kent’s Comm. 406 - 410; Hamilton v. Russell, 1 Cranch, 309; Clow v. Woods, 5 Serg. & Rawle, 278; Cunningham v. Neville 10 Ib. 201.
    . Even a stipulation in the deed of sale, for the retention, unless satisfactory, to the court, does not form an exception to the rule. 9 Johns.. 337 et seq.; 2 Kent’s Comm. 412; 5 Serg. & Rawle, 279; Divner v. McLaughlin, 2 Wend. 599.
    And.does not the same rule apply to mortgages of personal property, both at common law and under the statutes of frauds?' 2 Kent’s Comm. 406-412; Ryall v. Rolle, 1 Atk. 167; Worsley v. De Mattos, 1 Burr. 467; 5 Serg. & Rawle, 278; Fuller v. Acker, 1 Hill, (N. Y.) 475; 9 Johns. 340 et seq.; Smith v. Acker, 23 Wend. 653; 1 Gallis. C. C. 423; Look v. Comstock, 15 Wend. 246; Murray v. Burtis, Ib. 212; 4 Yerg. 541; 7 Ib. 445; Powell on Mortg. 23, 24; Cadogan v. Kennett, Cowp. 434; Conard v. Atlantic Ins. Co., 1 Peters, 449; Barrow v. Paxton, 5 Johns. 261; Thornton v. Davenport, 1 Scam. 299; 2 Wend; 599; 13 Serg. & Rawle, 131.
    This is an absolute mortgage, on its face, containing no stipulation whatever that Dawson should retain possession. .
    And as such, it is a conveyance executed, and passed the legal title to the slaves to Merrill. Powell on Mortg. 23, 24; 1 Peters, 441; 1 Ves. sen. 359; 5 Serg. & Rawle, 283 et seq.; 20 Wend. 262.
    And immediately on the execution of the mortgage, Merrill was entitled to the possession of the slaves, and to maintain a suit for them. Doe v. Grimes, 7 Blackf. 1; Rockwell v. Bradley, 2 Conn. 4; 14 Peters, 28; 12 Serg. & Rawle, 241; 3 Johns. Cas. 326; 2 Conn. 447; Newall v. Wright, 3 Mass. 152; 1 Freem. Ch. 473; Hobart v. Sanborn, 13 N. Hamp. (1st vol. 2d series), 227.
    At any rate, as soon as the first note fell due, in 1838, Mer-, rill’s title became absolute at law, and he had a right to immediate possession. Spalding v. Scanland, 4 B. Monroe, 365; 12 Wend. 62; Robinson v. Campbell, 8 Missouri, 366, 616; 10 Johns. 481; Dexter v. Harris, 2 Mason, C. C. 531; 5 Cond. Rep. 655; 20 Wend. 262; 1 Branch, 270; 1 Hill, (N. Y.) 475; 7 Cow. 292; 6 Paige, Ch. 587, 596; Lansing v. Capron, 1 Johns. Ch. 617; Adams v. Essex, 1 Bibb, 150; Estabrook v. Moulton, 9 Mass. 258; Hopkins v. Thompson, 2 Porter, 435.
    And his permitting Dawson to remain in possession, after such failure to pay the note first due, without disturbance, and without a stipulation in the deed to that effect, makes the whole fraudulent and void as to Dawson’s creditors. Goder v. Standifer, 7 Monroe, 488; 2 Kent’s Comm. 407 - 413; 1 Burr, 475; 4 Mass. 637; 15 Verm. (1 Slade) 135; Gardner v. Adams, 12 Wend. 298; Thornton v. Davenport, 1 Scam. 299; Semple v. Burd, 7 Serg. & Rawle, 288; 13 Ib. 131,-169.
    ; Conveyances óf slaves, at the time of the alleged execution of .this mortgage, were required to be acknowledged or proved •before the clerk of the Superior Court, of a Circuit Court, a justice of the peace, or other competent authority, within the county where one of the parties resided, and there recorded. Steele & McCampb. Ark. Dig. 267.'
    The conclusion of the court below, that it may be lawfully recorded without probate, is based on error; for the same, act of October 1, 1804, upon which the conclusion was founded, places the probate before the record; and it is consequently a prerequisite. St.eele & McCampb. Dig., p. 132, § 2, p. 454, § T; Geyer’s Digest of Laws of Missouri Territory, p. 127, § 2, p. 330, § 1.
    And the mortgage being acknowledged before a judge of probate of the State of Mississippi, who was wholly unauthorized by any legislative act of Arkansas, such acknowledgment is a mere nullity, and so is the pretended registry. Richardson v. Randolph, 5 Mason, C. C. 116: Coale v. Harrington, 7 Har. & Johns. 155; Miller v. Henshaw, 4 Dana, 330; Eastland v. Jordan, 3 Bibb, 187; Shultz v: Moore, 1 McLean, C. C. 527; Johnston v. Haines, 2 Ham. 55.
    And if it be such an instrument as was not by law required to be recorded, its registry gives it no validity. 1 Story’s Eq. Jurisp. § 404 ; 5 Máson, C. C. 265; 1 Gilman, 331.
    And, if not duly registered, it is void, as to Dawson’s creditors, though they had notice of its existence. 4 Rand. 212; 4 English, (Ark.) 116,'&c.; 5 Litt. 244; 1 Johns. Ch. 300; 4 Bibb, 79. .
    And a purchaser, under the creditor’s judgment, occupies the same position as the creditor himself. Sands v. Hildreth, 14 Johns. 497; 4 Rand. 212; Hildreth v. Sands, 2 Johns. Ch, 35 et seq.; 7 Blackf. 68; 1 McLean, C. C. 39; 4 Wash. C. C. 137; 1 Paige, Ch. 508 ; 11 Missouri, 544; 2 Wend. 601.
    And if improperly recorded, or the statute does not make the record notice, as it does not in this case, such registry is not constructive notice to purchasers. 1 Story’s Eq. Jurisp. § 404; 5 Mason, C. C. 115, 265; Moore v. Hunter, 1 Gilman, 331; 1 McLean, C. C. 527; McIver v. Robertson, 3 Yerg. 84; Heister v. Fortner, 2 Binn. 44; 4 Dana, 330; Gann v. Chester, 5 Yerg. 208; 12 Smedes & Marsh. 266; Main v. Alexander, 4 English, (Ark.) 116; 1 Dana, 168. .
    Again, there is no legitimate proof in the record to show when the mortgage was executed. It rñust, therefore, be presumed to be included in the category and class of deeds mentioned in the following paragraph, under the act of 1838.,- And 'the only proof of the execution of the mortgage being the mere signature of Dawson, the legal presumption must be that it had no valid existence until the filing of the bill, and after defendants-’ rights accrued.
    This mortgage, placing it in the strongest possible view in Merrill’s favor, being unrecorded, fixed no lien in his favor a3 against Dawson’s creditors, who had no notice of it. This is unquestionable. Soon after the alleged execution of the mortgage, to wit, on the 20th of February, 1838, the legislature of Arkansas passed an act, declaring that “ all mortgages ” “ for personal property” should “ be acknowledged before some person authorized by law to take the acknowledgment of deeds,’5 and recorded in the county where “ the mortgagor resides.” And that such mortgage, when so filed for record, “ and not before,” should be a lien on the property. And that the recorder should “ note, irj the record, the precise time such mortgage was filed for record.” See Rev. Stat. of Arkansas (A. D. 1838), p. 578, ch. 101.
    Was it not incumbent on Merrill so to have this mortgage recorded ? And was it not expressly embraced in this act by its general phraseology 1 If so, he having utterly failed to ■ comply with it, this case comes directly within the decision of the Supreme Court of Arkansas iñ Main v. Alexander, 4 English, 116.
    And the decisions of a State court, on its own' statutes, is the rule for the United States courts. 13 Peters, 21, 63, 328; 2 McLean, C. C. 433; 1 Ib. 36; 6 Peters, 297; 5 Ib. 401.
    Was .actual notice proved ?
    Fowler positively denies notice in his answer; and this can only be overturned by one positive witness, and corroborating circumstances equal to another. 2 Stor. Eq. Jur. § 1428; Flagg v. Mann, 2 Sumn. C. C. 550; 5 Mason, C. C. 267, 268; 1 Greenl. Ev. § 260; Simpson v. Feltz, 1 McCord, Ch. 218; Hart v. Ten Eyck; 2 Johns. Ch. 92; Gres. Eq. (ed. of 1837), 156; 9 Cranch, 160; 20 Pick. 34; 10 Johns. 540; 5 Cond. S. 136; 1 Mason,. C. C. 515; 1 Call, 280; 5 Peters, 111; Sug. on Vend. 550; 2 Wash. C. C. 199; 1 Cow. 703.
    And it is submitted to the court, whether there. is any witness at all, who has sworn positively to such notice; and if not, can a. court infer it from the circumstances alone, however strong they may be, against the answer’s positive denial ? The respondent speaks of a matter within his own knowledge; the. witnesses from their impressionsj and belief from other mere circumstances, without 'any pretence of ’ actual knowledge. And the answer, as evidence, must have the. same . weight as disinterested witnesses. Sturtevant v. Waterbury, 1 Edw. Ch. 444; Sug. on Vend. 550; Clarke’s Ex. v. Van Reimsdyk, 9 Cranch, 160; 1 Greenl. Ev. § 260; 10 Johns. 542; 1 Cow. 743.
    The only evidences of'actual notice to Fowler, even at- the sale, are, that he was in the crowd when Trapnall forbade the sale, and during the progress of the sale purchased some of the slaves ; the beliefs of the testy Frenchman,- Bogy; the thoughts and beliefs of White; ’ the beliefs of Walker; and the impressions of Trapnall; none of whom testify positively, or with any degree of certainty.'
    Appellants insist, t.hat such evidence does not .even, make a prima facie case of notice; much less is it sufficient to overwhelm the positive negative of the answer. Because the rulé' of law is, that, where witnesses state facts to the best of their knowledge and belief, impressions, thoughts, or understanding, without detailing the facts upon which they are based, or from which they were induced or derived, they do not even amount to negative evidence; they are not- evidence at’all. Woodcock v. Bennett, 1 Cow. 748 et seq.; Clason v. Morris, 10 Johns. 531; Bright v. Haggin, Hardin, 537; Van Dyne v. Tharpe, 19 Wend. 165; Smith v. Frost, 2 J. J. Marsh. 426; Andrews & Bros. v. Jones, 10 Ala. Rep. (New Series), 470; Ventress v. Smith, 10 Peters, 171; 1 McCord, Ch. 218; 4 Ala. Rep. (New Series), 48; 2 Comstock, 515; 5 Porter, 343; 1 Dana, 163.
    Notice in fact must be such as to affect the subsequent purchaser with fraud. Curtis v. Lunn, 6 Munf. 44; 1 Stor. Eq. Jur. § 404; Dey v. Dunham, 2 Johns. Ch. 190; Grinstone v. Carter, 3 Paige, Ch. 423.
    And the proof of it must be clear, undoubted, direct, and conclusive. 6 Munf. 44; 1 Stor. Eq. Jur. § 406; McNeill v. McGee, 5 Mason, C. C. 265; 2 Sumn. C. C. 550; Sug. on Vend. 730; 2 Pow. on Mort. 560, 562; Martin v. Dryden, 1 Gilman, 208; McMeechan v. Griffing, 3 Pick. 154.
    Mere presumptions of notice, from rumors, &c., in Dawson’s neighborhood, cannot attach to Fowler, who resided in a different county. 2 Su'mn. C. C. 55T.
    The witnesses even disagree about whose encumbrance it was that Trapnall gave notice of; whether Merrill’s, William Dawson’s, or some other.
    Even if the indefinite impressions, beliefs, and discrepances in the recollections of the witnesses, so manifest in their depositions, be deemed sufficient to fix notice in fact upon Fowler,. at the sale; and there is no pretence that he had any until then; and the record shows that he resided in a different county, and could not, therefore, be affected by rumors in Dawson’s neighborhood; such noticeis utterly inoperative.
    Because notice to a judgment"creditor, or a purchaser under his judgment, of a prior assignment, or mortgage, of the debt- or’s property, where possession has not been taken under it, cannot affect the right of either. 1 Gallis. C. C. 419; Russell v. Fillmore, 15 Verm. 135; 4 Eng. (Ark.) 116; Warden v. Adams, 15 Mass. 236; 7 Serg. & Rawle, 288 et seq.; 13 Ib. 131, 169.
    And such creditor, or purchaser under his judgment, although he receive actual notice at' the sale under execution, will' hold the legal title, whether of land or personalty, in preference to an unrecorded deed, or mortgage, executed prior to the judgment, or execution lien. Guerrant v. Anderson, 4 Rand. 212; 5 Yerg. 208; Hill v. Paul, 8 Missouri, 480; Reed v. Austin’s Heirs, 9 Missouri, 729; Frotbingham v. Stacker, 11 Missouri, 78; Garnett v. Stockton, 7 Humph. 85; Bingaman v. Hyatt, 1 Smedes & Marsh. Ch. 444; Martin v. Dryden, 1 Gilman, 218; McGowan v. Hoy, 5 Litt. 245; Helm v. Logan, 4 Bibb, 79; Farnesworth v. Childs, 4 Mass. 637; Main et al. v. Alexander, 4 Eng. (Ark.) 117; Semple v. Burd, 7 Serg. & Rawle, 289 et seq.; Stow v. Meserve, 13 N. Hamp. (1st vol. 2d series), 49; 15 Mass. 236; Coffin v. Ray, 1 Metcalf, 213; 1 Dana, 168; 13 Serg. & Rawle, 169.
    A principle settled in the foregoing cases is, that where a bona fide creditor, without notice of a prior unregistered conveyance, obtains a lien by virtue of a judgment, attachment, or execution, subsequent notice, whether before or at the sale, cannot affect the purchaser or creditor, but he must in equity, as well as at law, hold the property against the former unregistered deed.
    In this case, the lien was fixed when the execution was delivered to the sheriff. See Rev. Stat. of Ark., A. D. 1838, ch. 60, p. 378, § 24.
    The court below appears to have thought that the answer did not contain a sufficient averment as to the payment of the purchase-money before notice, &c., and therefore no proof of notice was necessary. Fowler’s answer does make substantially and fully such denial and averment.
    And even if the answer were technically defective in this particular, it should have been excepted to, and a more perfect response obtained; but being replied to, the defect, if any existed, is waived. 1 Freem. Ch. 547; 5 Mason, C. C. 266.
    The value of the slaves, and of their hire, decreed by the court below, is excessive beyond all reason; and in direct violation of both the law and the evidence.
    The'value ought to'have been estimated as at the time of the decree, and their reasonable hire from the filing of the bill until that time. See 1 Brockenb. (Chief Justice Marshall) 515, Backhouse’s Ad. v. Jett’s Ad.
    And in estimating the hire, all reasonable charges and expenses, such as taxes, medical attendance, clothing, raising of the children, &c., &c., ought to have been deducted. Mims v. Mims, 3 J. J.' Marsh. 109; 1 Dana, 286.
    These equitable rules were disregarded.
    To arrive at a correct conclusion on this point, the answers must be looked to; and they, indeed, according to the well-' settled rules of evidence in equity, furnish the only guide for the decree, as to value and hire.

      The bill expressly interrogates both Fowler 'and Badgett as to their value when purchased, their value when suit was commenced, and of their continued hire. They answer expressly these interrogatories.
    And there can be no question that their answers are responsive to the bill; and, as such, conclusive evidence in their favor, unless overturned by two witnesses, or one positive witness, with strong corroborating circumstances. See the authorities above referred to on this point; the elementary works and reports on equity passim; and especially the following cases: Woodcock v. Bennett, 1 Cowen, 742; 2 Sumner, 506; Mills v. Gore, 20 Pick. 34; 2 Story, Eq. Jur. § 1528; 9 Cranch, 160; Allen v. Mower, 17 Verm. (2 vol. N. S.) 68; Christie v. Bishop, 1 Barb. Ch. 115; Oakey v. Rabb, 1 Freem. Ch. 547; Pierson v. Clayer, 15 Verm. (1 Slade), 104; Russell v. Moffitt, 6 How. (Miss.) 309.
    The answers, responding to these direct interrogatories, declare that the purchase-money paid by Fowler was then the full value of the slaves, and that their value had greatly depreciated since, at least one fourth, with the general decline in the price of slaves, and that their profits or hire had necessarily declined also; and further state the net value of their hire, after deducting the proper charges, expenses, &c. Have the answers been set aside by the necessary witnesses ? The record will be sought for them in vain. None of the witnesses pretend to speak of their value after the sale; and those who speak of hire mention it in gross, without "deducting the proper charges and expenses.
    ■ White says they sold for about what they were worth, and were appraised too high, fully sustaining the answers.
    Bogy says, at the time they were valued, he thinks they were worth what they were appraised at; but cannot say what the precise value of either of them was.
    • The answer, then, fully sustained by White, equal to three witnesses, cannot be overturned by the solitary testimony of Bogy. Even if Hammett’s evidence should not be suppressed, it is only two witnesses against the answer and White ; and the latter must even then prevail, because the former lacks the strong corroborating circumstances. And there is no evidence at all militating against the answers as to the depreciation in value after the sale. Rowton v. Rowton, 1 Hen. & Munf. 101.
    And the appraisement list cannot be brought in aid of Bogy. For it is not evidence. Lawson v. The State, 5 Eng. (Ark.) 36.
    The answers, then, must be taken as true, and conclusively ■ sq, as to the value and hire; and the decree being for about, or more than twice as much as the answers disclose, must be reversed on that ground, if on no other, that a correct account may be taken.
    The decree against Badgett is also erroneous, because it decrees him to pay the value of Jackson, without any proof that he was the issue of. one of the mortgaged slaves, against the denials of the answers. And because it decrees him to pay the value of Eliza, who died before the institution of the suit. 1 Brockenb. 515.
    And even if notice be fixed upon Badgett, it ^cannot affect him, if Fowler was a bond fide purchaser. Mitf. PL 224; 1 Atk. 571; 2 Bro. Ch. 66 ; 1 Stor. Eq. Jur. § 409 ; 6 Munf. 44; Boone v. Chiles, 10 Peters, 209; 3 Ala. (N. S.) 475.
    The points raised by the counsel for the appellee .were the following.
    1. That the mortgage was executed by Dawson and received by Merrill in good faith, to secure the latter from loss on account of indorsements made by him for Dawson’s accommodation.
    2. That the notes were protested, and notice duly given and the notes paid by Merrill. Brandon v. Loftus, 4 Howard, 128.
    3. That the laws of Arkansas in force in November, 1837, did not require mortgages of personal property to be recorded.
    4. That under these circumstances the mortgage would be good, even against subsequent bona fide purchasers without noticé, notwithstanding the mortgagor’s continuing in possession of the mortgaged goods. Powell on Mortg. 42 - 44; Edwards v. Harben, 2 Term Rep. 587; Hamilton v. Russell, 1 Cranch, 317, 318; U. States v. Hooe et al., 3 Cranch, 73; Bank of Georgia v. Higginbottom, 9 Peters, 60; Shirras v. Caig and Mitchell, 7 Cranch, 34; Stone v. Grubham, Bulstrode, 225; Meggott v. Mills, 1 Ld. Raym. 287; Brooks v. Marbury, 11 Wheat. 78.
    And notwithstanding the appellee did not take possession of the negroes' immediately on the notes being protested. Lady Lambert’s case, Sheppard’s Touchstone, 67; 1 J. J. Marshall, 227; 2 Dana, 204 ; 8 Peters, 32, 33; 3 Cowen, 189; 2 Wendell, 600.
    5. That the laws of Arkansas, in force in 1837, although they did not require, yet .allowed the recording of this mortgage, and such -recording operated as notice to all the world. Steele 6s Me Campbell’s 'Digest of Laws of Arkansas, titles “ Mortgage,” Recorder.” See District .Judge’s Opinion in this case, pp. 188, Í89.

      6. That the appellants had actual notice atithe time of their purchase of the existence of this mortgage, and,their purchas-r ing with such notice is fraudulent against the appellee, and they can derive no rights against the appellee through such purchase. Le Neve v. Le Neve, 3 Atk. 646; 1 Story’s Eq. 395, 397; Wormley v. Wormley, 8 Wheat. 449.
    7. That at all events the appellants had sufficient notice to put them on inquiry, which, if they failed to make, they cannot claim the rights appertaining to bonLfide subsequent.purchasers without notice. 1 Story’s Eq. § 400, note 4, § 400 a.
    8. That the answers of the appellants-do not allege that they had no notice of the mortgage before the payment by them of the purchase-money, and such allegation is indispensable to a valid defence by subsequent purchasers. Frost v. Beekman, 1. Johns. Ch. 300; 2 Daniell’s Chancery Practice, 814; Jewett v. Palmery 7 Johns. Ch. 68; Harrison v. Southgate, 1 Atk. 538 Story v. Ld. Windsor, 2 Atk. 630; Wigg v. Wigg, 1 Atk. 384; Tourville v. Naish, 3 P. Wms. 306; Jones v. Thomas, 3 P. Wms. 244; Hardingham v. Nicolls, 3 Atk. 304; Wormley v. Wormley, 8 Wheat. 449.
    9. That after hearing it is too late to apply for leave to amend the answer in this respect. Story’s Eq. PI. 896, 901. And there is nothing in the record from which it may be inferred that they could amend, or that they wanted leave to do so.
    10. That Fowler only purchased Dawson’s equity of redemption,. 4 Randolph, 212.
    The counsel for the appellants insists upon the following exceptions.

      Mandeville’s Deposition, Sih March, 1845.
    1. Because no notice of its caption was given.
    The appellee contended that none was necessary, because it was taken more than one hundred miles from the residence of the appellants. Act of 1789, ch. 20, § 30 (1 Stat. at Large, 89).
    2. Because it was taken before a Probate Court.
    The appellee contended, that it was a court within the meaning of the act of 1789, ch. 20, § 30. (See opinion of the district judge in this case, and the constitution and laws of Mississippi as there cited.) But even if it ought to have been suppressed,' the same facts are sufficiently proven in his deposition taken before the Mayor of Natchez.

      Depositions ■ taken at Pine Bluffs.

    1. Because the name of one of the defendants, J. L. Dawson, does not appear in the certificate of the commissioners.

      The appellee contended, that the cause in whifeh it was taken sufficiently appears. Keene v. Meade, 3 Peters, 1; Jordan v. Hazard, 10 Ala. 224.
    2. (a.) Because sufficient notice was not given of the filing of the interrogatories.
    The appellee will rely on the 13th Rule of Practice for the Equity Courts of the United States.
    (6.) Because sufficient notice was not given of the time and place of taking the depositions.
    The appellee contended, that, the commission being ex parte, notice was unnecessary. 1 Newland’s Ch. Prac. 262 ; Harr. Ch. Prac., ed. 1808, p. 244; 1 Smith’s Ch. Prac. 365.
    3. Because each interrogatory was not propounded to each of the witnesses.
    The appellee contended that this was unnecessary, and that it would have been irregular to have done so. Daniell’s Ch. Practice, 1052, 1061; Gresley’s Eq. Ev. 67, 104; 1 Turner’s Ch. 32 (Introduction); 1 Smith’s Ch. Prac. 368.
    And the appellee contended, that, if the depositions taken at Pine Bluffs ought to have been suppressed, still without them there is in the appellants’ commission, and in'the other evidence, sufficient proof to entitle him to the decree as passed.
    The appellants object, that the court improperly dismissed the bill against Mrs. Baylor.
    The appellee contended, —
    1. That there was not sufficient evidence to warrant a decree against- her.
    2. But that if the court did err in that respect, it operated no prejudice to the appellants, as the value of the negroes held by her, and their hire, would not, together with the several sums decreed against all the other defendants, be equal to the mortgage debt.
   Mr. Justice WOODBURY

delivered the opinion of the court..

' This was an appeal from a decree of the Circuit Court of the United States for the District of Arkansas.

The decree was in favor of Merrill, on a bill in chancery to foreclose a mortgage of certain negroes, described therein and executed to'him, November 25, 1837, to secure him for indorsing two notes made in April and June, 1837, the first payable in one year and the other in two years, for $ 12,578.42 in1 the aggregate. These notes run to F. L. Dawson or order, and were by him indorsed to the plaintiff, Merrill, and by him to-the Planters’ Bank for Dawson, who obtained the money thereon for himself. This mortgage was recorded December 29,1837.

The notes not being taken up by Dawson, Merrill was compelled to pay their amount and interest, on the 4th of March* 1842.

The bill then proceeded to aver, that the defendants below, viz. James L. Dawson, James Smith,,William Dawson, and others, had since got possession of these negroes, some of one portion of them and some of another. And that, although they were bought with full notice of Merrill’s prior rights to them under the above mortgage, yet the respondents all refuse to deliver them to him, or pay their value and hire towards the discharge of the mortgage. Whereupon he prayed that each of them be required to deliver up the negroes in his possession, and account for their hire or to pay their value.

The court below decided, that $ 18,934 be paid to Merrill by the respondents, excepting Mrs. Bayler, and, .on failure to do it, that the redemption of them be barred, and other proceedings had, so as eventually to restore the slaves or their value to the mortgagee.

Several objections to this decree and other rulings below were made, which will be considered in the order in which they were presented.

Some of the depositions which were offered to prove important facts had been taken before “ a judge of the Probate Court” in Mississippi, when the act of Congress allows it in such cases before “ a judge of a county court.” 1. Stat. at Large, .88, 89.

But we .think, for such a purpose, a judge of probate is usually very competent, and is a county judge within the description of the law.

In Mississippi, where these depositions were taken, a Probate Court is organized for each eounty, and -is a court of record, having a seal. Hutch. Dig. 719, 721. ' Under these circumstances, were the competency of a probate judge' more doubtful, the objection is waived by the depositions having been taken over again in substance before the Mayor of Natchez.

The other objections to the depositions are in part overruled by the cases of Bell v. Morrison et al., 1 Peters, 356, and Patapsco Ins. Co. v. Southgate et al., 5 Peters, 617.

On the rest of them not so settled, we are satisfied-with the views .expressed below, without going into further details.

The next exception for our consideration that the time of the execution of the mortgage is not shown, and hence that it may have been after, the rights of the respondents .commenced.

But it must be presumed to have been exeeutéd at its date till the contrary is shown; and its date was long before. Besides this, it was acknowledged probably the same day, being certified as done the 24th of November, 1837. And though this was done out of. the State, yet, if hot good for some purposes, it tends to establish the true time of executing the mortgage. It must also have been executed before recorded, and. that was December 29th of the same year, and long before the sale in October, 1841, under which the respondents claim.

The objection, that the handwriting of the record is Dawson’s, does not impair this fact, or the legality of the record as a record, it having doubtless' been allowed by the register', and being in the appropriate place in the book of records.

It is next insisted, that, as the negroes were left in the possession of Dawson after the mortgage, and were seized and sold to the respondents in October, 1841, to pay a debt due from Dawson to the Commercial Bank of Vicksburg, and as the respondents were innocent purchasers, and without notice of the mortgage, the latter was consequently void. This is the substance of several of the answers. Now, whether a sale or mortgage, without changing the possession of the property, is in most cases only prima facie evidence of fraud, or is per se fraud, whether in England or in some of the States, or in Arkansas where this mortgage and the sale took place, may not be fully settled in some of them, though it is clear enough in others. (See cases cited in 2 Kent’s Com. 406-412.) So whether a sound distinction may not exist at times between a mortgage and a sale, need not be examined, though it is more customary in all mortgages for the mortgager honestly to retain the possession, than to pass it to the mortgagee. U. States v. Hoe, 3 Cranch, 88; Haven v. Low, 2 N. Hamp, 15. See 1 Smith’s Leading Cases, 48, note;. Brooks v. Marbury, 11 Wheat. 82, 83; Bank of Georgia v. Higginbottom, 9 Pet. 60; Hawkins v. Ingolls, 4 Blackf. 35. And in conditional sales, especially on a condition precedent bona fide, the vendor, it is usually considered,-ought not to part 'with the possession till the condition is fulfilled. See in 9 Johns. 337, 340; 2 Wend. 599. See most of the cases collected in 2 Kent’s Com. 406.

, But it is unnecessary .to decide any of these points here, as, • in order to prevent any injury or fraud by the possession not being changed, a record of the mortgage ip in most of .the States required, and was made here within four or five weeks of the date of the mortgage, whereas the seizure and sale of the negroes'.to the respondents did not take place till nearly four years after.

Yet it is urged in answer-to'this,'that the statute of Arkansas, making a mortgage, acknowledged and-recorded, good, without any change of possession of the articles, did not take effect till March 11th, 1839, over a year after this record.

Such a registry, however, still tended to give publicity and notice of the mortgage, and to prevent, as well as repel fraud, and it would, under the statute of frauds in Arkansas, make the sale valid if bona fide and for a good consideration, unless against subsequent purchasers without notice. Rev. Statutes, ch. 65, § 7, p. 415.

There .is no sufficient proof here of actual fraud, or mala fides, or want of a full and valuable consideration. And hence the objection is reduced to the mere question of the want of notice in the respondents. In relation to that fact, beside what has already been stated, evidence was offered to show, that the existence of the mortgage was known and tqlked of in the neighborhood, and proclaimed publicly at the sale. -,

Indeed, some of the evidence goes so far as to state, that, after the notice of the mortgage at the sale, the sheriff proceeded to sell only the equity of redemption, or to sell the negroes subject to any encumbrances. His own deed-says expressly, “ hereby conveying all of the right, title, estate, interest, claim, and demand of the said James L. Dawson, of, in, and to the .same, not making myself hereby responsible for the title of said slaves, but only conveying, as such sheriff,, the title of said James L. Dawson in and to' the same.”

The proof likewise brings this actual notice home to each of the respondents, before the.purchase, independent of the public récord of the mortgage and' the public declaration forbidding the sale at the time, on thé ground that the mortgage existed and was in full force.

. According to some cases, this conduct of theirs under such circumstances would seem more fraudulent, than any by Merrill. Le Neve v. Le Neve, 3 Atk. 646; 1 Stor. Eq. 395; 8 Wheat. 449. Beside this, the answer should have averred the want of notice, not only before thé salé, but before the payment of the purchase-money. Till the_actual payment the buyer is not' injured, and it is voluntary to go on or not when informed that the title is in another. Wormley v. Wormley, 8 Wheat. 449; Hardingham v. Nicholls, 3 Atk, 304; Jewett v. Palmer et al., 7 Johns. Ch. 68. See Le Neve v. Le Neve, 3 Atk. 651.

, There is another view of this transaction, which, if necessary to revert to, would probably sustain this, present mortgage. The Arkansas law to make a mortgage valid if recorded, passed February 20th, 1838. (Rev. Stat. p. 580). This mortgage was on record then, and since, and had been from December, ' 1837, thus covering both the time when the law took effect and when the respondents purchased. It was also acknowledged- then, and though not before a magistrate in Arkansas, yet before one in Mississippi; and in most States, the acknowledgment may be before a magistrate oat of the-State as well as in, if he is authorized to take acknowledgments of such instruments.

Nothing appears in the record here against his power to do this. Some complaint is next made of the delay by Merrill to enforce his mortgage against Dawson.

But it will be seen on examining the evidence, that he was not' compelled to pay Dawson’s notes to the bank till March 4th, 1842, and that these negroes were sold to the respondents and removed some months before, viz. October 11th, 1841, so that-no delay whatever occurred on his part to mislead the respondents.

It was next objected, that two or three children, born since the mortgage, should not be accounted for, and one woman, who is supposed to have died after the sale and before this bill in chancery.

But it seems to accord with principle, that the increase or offspring should belong to the owner of the mother (2 Bl. Com. 404; Backhouse’s Admr. v. Jetts’s Admr., 1 Brock. C. C. 511); and the evidence is so uncertain whether the death of Eliza occurred after this bill or before, that the doubt must operate against the respondents, whose duty it was to prove satisfactorily that it happened before, in order to be exonerated.*

It is argued further against the decree, that the respondents were made to account below for a boy, not proved clearly to have been bom of one of the mortgaged-women. But there seem circumstances in the case from which it might be inferred that he was so born. He was brought up among them, he was under the care chiefly of one, and no other person is shown to have been his parént.

We do not see enough, therefore, to justify us in differing from the judge below on this point.

The rules adopted in the Circuit Court for fixing the value to be paid for the negroes are also objected to, but seem to us proper. 1 Brock. C. C. 500.

The mortgaged property is given up or taken possession of by the mortgagee usually at the time of the. decree; and if not surrendered then, its value .at that time, instead of the specific property mortgaged,- must be and was regátded as the rule of damages.

' The injury is in not giving it up .when'called for then, or in not then páying the- mortgage, and not in receiving it some years before, ana pot paying its value at that time.

This is not trover or trespass for the taking of, it originally, but a bill in chancery to foreclose the redemption of it by a decree, and hence its value at the-time of the decree is the test of what the mortgagee loses, if the property is not then surrendered.

There is another exception to the estimate made of.the value of the hire of the slaves. Their hire or use was charged only from the institution of this bill jn chancery. This surely does not go back too far. 1 Brock. C. C. 515. ‘

And some analogies would carry it back further, and in a case like this charge it from the period of their going into the possession of the respondents. But they object to the hire allowed ; because, it is said, that clothing, medicine, &c., during this time should have been deducted. 1 Dana, 286; -3 J. J. Marshall, 109.

We entertain no doubt, however, that in fact the hire here was estimated as the net rather than gross hire, and all proper deduction made. It is only a hundred dollars in one case, and seventy in others, which manifestly might not equal their gross earnings, while nothing is charged ■ for the children. • Testimony, too, was put in as to the proper amount for hire, and the judge as well as witnesses belonging to the country, and being acquainted with its usages, doubtless made all suitable deductions.

There is no evidence whatever to the contrary.

And on the whole ease, we think the judgment below should be affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Arkansas, and was- argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.