Harris v. Wall.

*When sworn to, it is agreed this deposition of B.

*696] G. Sims may be used in the cause stated in the cap

tion as evidence.

"RIVES & SHELTON & THOMPSON, for Plaintiff.

MAYES & CLIFTON, for Defendant Wall."

After the defendant had read to the jury the deposition of Benjamin G. Sims, which was done subject to exceptions, the plaintiff moved the court to exclude from the jury that part of said deposition which proved or tended to prove said plaintiff to be a negro-trader; but the court overruled said motion, on the ground that the counsel of the plaintiff had agreed in writing on said deposition, that the same might be read in evidence.

This opinion of the court constituted the second exception. The third and fourth exceptions were abandoned by the counsel for the plaintiff in error, and need not be further noticed.

The cause was argued by Mr. Nelson, for the plaintiff in error, and Mr Clifton, for the defendant in error.

Mr. Nelson.

The first exception relates to the admissibility in evidence of the deposition of William S. Rayner, and is grounded on the insufficiency of the notice, under the act of September 24th, 1789, § 30.

That act authorizes the taking of the deposition of a witness de bene esse "who shall live at a greater distance from the place of trial than one hundred miles," or "is bound on a voyage to sea," or "is about to go out of the United States," or "out of such district (in which a cause may be depending) and to a greater distance from the place of trial than one hundred miles," upon proper notice to the adverse party.

Now the notice given in regard to this deposition does not bring the case within the act of Congress, because, whilst it states that the witness was about to depart the State, it does not allege that it was about to go to a greater distance than one hundred miles from the place of trial, and it might well have been that the witness would leave the State, and yet be within reach of the process of the court.

To show the strictness with which the act of Congress in question has been construed, reference is made to the cases following. Bell v. Morrison et al., 1 Pet., 355; The Samuel, 1 Wheat., 9; The Patapsco Ins. Co. v. Southgate, 5 Pet., 604: The Thomas and Henry, 1 Brock., 373.

Harris v. Wall.

The second exception regards the admissibility in evidence of part of the deposition of Benjamin G. Sims, which the court below suffered to go to the jury, because of the agreement of counsel appended to it.

*It is submitted that the court erred in this, since the true construction of that agreement is, that the [*697 deposition was to be received in evidence only in so far as the matters contained in it were legally admissible in support of the issues joined in the causes; and it being conceded, as indeed it cannot be denied, that the portion of the deposition excepted to was not in itself evidence, the agreement could not make it admissible. It is like the case of a witness examined on the stand, whose statements improperly made in the hearing of the jury will be excluded by the court at any time during the trial.

The third and fourth exceptions, which relate to the admissibility of the answer in chancery, are believed to be untenable.

But, independently of these exceptions, the plaintiff in error insists that the judgment of the court below must be reversed, because the record shows that nothing has been found to justify that judgment.

The issues passed upon the jury, as the court will perceive, are wholly immaterial, the existence or non-existence of the facts involved in them in no wise affecting the rights of the parties to the controversy.

They put the defence in the action exclusively on the ground of the consideration of the bill sued upon, which was, that it had been given for slaves introduced by the plaintiff into the State of Mississippi after the 3d day of May, 1833.

Now that this consideration was a good one, has been over and over again settled by this court. Groves v. Slaughter, 15 Pet., 449; Harris v. Runnels, 5 How., 135; Truly v. Wanzer et al., 5 How., 141; Sims v. Hundley, 6 How., 1.

In the last of these cases, on page 6, Chief Justice Taney says,- "It is the settled law in this court, that contracts of this description, made at the time when these notes bear date, were valid, and not prohibited by the constitution of Mississippi."

This being the law of the case, it is clear that the plaintiff below might have treated these pleas as nullities, and, as far as they were concerned, have signed judgment for the want of a plea.

But he inadvertently took issue upon them, and the jury decided the facts against him; and in that state of the case it is

Harris v. Wall.

equally clear that he might have moved the court for judgment non obstante veredicto.

This he omitted to do, and now the inquiry is whether that omission precludes him from availing himself of the insufficiency of the judgment in this court.

That it does not, the plaintiff in error thinks is clear upon principle as well as upon authority.

*That the issue was not material, see 2 Saund., 319

*698] (No. 6).

That the defect is error, for which the judgment will be reversed, it is respectfully submitted, will be conclusively shown by the following cases. 6 Cranch, 221, 223, 225; Kirby, 139; 2 Root (Conn.), 4,204; 2 T. R., 759; 2 Archb. Pr., 758; 1 Mason, 62; 4 How., 131.

In the case last cited, the question was elaborately examined, and the principle and practice settled, under circumstances much less strong than those which are disclosed in the record in this case.

But it is supposed by the counsel for the defendants in error, that the judgment rendered in the court below must be sustained because it is said to be a general judgment, and that the third of the pleas of the defendant below set up a sufficient defence to the action.

To this it is answered, in the first place, that there was no judgment rendered in the court below upon that plea, and this is manifest from the whole record.

The plea was in bar, and, if good, furnished a full defence to the plaintiff's action. Yet a jury was called to decide the issues of fact, wholly unnecessary to be passed upon if the plea in question had been adjudged good.

Nor does the judgment profess to be rendered on the demurrer, it is on the verdict.

As to the form of a judgment on demurrer, see 2 Saund., 300 (No. 3); 2 Archb. Pr., 11; Archb. Forms, 306; Tidd's P. Forms, 200.

Even, however, if it were otherwise, and judgment had been rendered on the demurrer, it could not have been supported.

This plea was framed on the act of Mississippi of the 18th of June, 1822, 4th and 5th sections (How. & H. Dig., 156).

The first-mentioned of these sections (the fourth) prescribes the mode and manner in which slaves may be imported as merchandise into Mississippi; the fifth, what shall be done when such slaves are sold.

The sixth section of the same act imposes a penalty of $100

Harris v. Wall.

for every slave sold without a compliance with the provisions of the fourth and fifth sections.

Now it is apprehended, that, upon the true construction of this act, the non-compliance by the seller with the provisions of the sections mentioned does not invalidate a sale made by him. On the contrary, the sixth section of the act, by its terms, recognizes the validity of such sales.

*The plea does not allege any combination or collusion between the plaintiff and defendant in regard [*699 to the introduction of the slaves sold into Mississippi. Can it, then, be doubted, that, under the provisions recited, the defendant acquired a title to the slaves in question under his purchase? And if so, is it not equally clear, that, though liable to the penalty denounced by the sixth section of the act in question, the plaintiff is competent to enforce his contract against the defendant? It can hardly be that the defendant has acquired a title to the property purchased, and yet is not answerable for its price.

Questions of this character have been frequently considered and decided. See 11 Wheat., 258; 4 Burr., 2069; 6 T. R., 410; 3 T. R., 418; 1 Bos. & P., 295; 7 Taunt., 246; 4 N. H., 290; 8 Wheat., 357; 12 Pet., 70; Walker, 293; 1 Litt., 16, 19.

In any view, therefore, which may be taken of this act of Mississippi, (assuming it to be in force, though some intimation is given in the notes of the defendant's counsel, that it has been repealed,) it is submitted, that it cannot avail to defeat the recovery by the plaintiff of his demand. But it is insisted that the question does not arise in this case, the record showing that the demurrer, at the time of the trial of the issues before the jury, was undisposed of, and that the judgment was rendered on the verdict alone.

Mr. C. R. Clifton, for defendant in error, in reply.

1. The act of 1789, which authorizes the taking of the deposition of a witness de bene esse, nowhere requires that the notice should show that the case was within the provisions of the act. The decisions cited by the counsel for the plaintiff only establish what has never been controverted, that the party who offers a deposition taken de bene esse must show that the case provided for by the act existed, and that there had been a full compliance with its requisitions.

In this case the counsel of the opposite party attended the examination.

When the deposition was offered, in open court, the party offering it proved, that, at the time it was taken, the witness

Harris v. Wall.

was on his way to the republic of Texas, that is, he was "about to go out of the United States," and that he then, at the time of offering it, resided in that republic. These facts having been proved by evidence aliunde, the certificate of the commissioner showed every other fact required by the act of Congress to render the deposition competent, and we insist there was a compliance with all its provisions.

The only object of the notice was to secure the attendance. *of the counsel at the examination. He attended, and *700] pleads in abatement to the notice, that it was insufficient, his presence refuting his plea.

2. The deposition of Sims ought not to have been excluded. The issue was as to what was the consideration of the bond sued on: it being averred on the one side that it was for slaves introduced into the State of Mississippi and sold in the year 1836, and denied on the other. The deposition contains several circumstances conducing to show the truth of this averment; and among these is the one objected to, that is, that the plaintiff had carried slaves to Mississippi for sale, and was, in fact, engaged in the avocation of a "negro-trader." How far the defendant would have been permitted to go in making this proof, in opposition to the will of the plaintiff, it is not now needful to inquire, since no such opposition was made. This fact was proved in a deposition, which the plaintiff agreed should be read as evidence to the jury; and he cannot now ask the appellate court to reverse the judgment, because the court below held him to his own agreement.

(The counsel then proceeded to the discussion of the point involving the construction of the constitution of Mississippi, and arising on the issues found by the jury for the defendant; but was arrested for the moment by the chief justice, who, after conference with the other members of the court, said, that this question had been repeatedly settled by this court, and the court could not consent to consider it an open question, and hear it again argued. The counsel acquiesced with manifest reluctance, and, being asked by a member of the court if there was any other point in the case, said:-)

There is a special plea founded upon the fourth and fifth sections of the act of the 18th of June, 1822, which, if not repealed by the provision of the constitution of Mississippi as to the introduction of slaves, presents a valid defence to the action. It is demurred to.

In Mississippi, these sections have been considered as repealed, upon the ground that the constitution, which is the supreme law, prohibits the introduction of slaves absolutely,