[Campbell's Executors vs. Pratt and others.]

it, arises from an error committed below, probably by the commissioner, in selling the doubly incumbered squares before those singly incumbered were disposed of; the consequence of which is, that these squares, which were not in Duncanson's mortgage, remain unsold, because the sale of the thirty-four satisfied Law's mortgage; whereas, by beginning with the sale of those singly incumbered, two squares (supposing the value to be the same) would have remained, to be applied to the payment of Greenleaf's interest in Duncanson's mortgage.

But there is nothing in this for Campbell to complain of; since after applying the proceeds of these squares to the payment of the second mortgage, it still remains unsatisfied to a great amount, and leaves Campbell nothing to receive in right of his equity of redemption.

The decree of the court below, as against this appellant, will be affirmed.

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 considered, ordered, 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.

SUNDRY GOODS, WARES AND MERCHANDISES, THE AMERICAN FUR COMPANY, CLAIMANTS, PLAINTIFFS IN ERROR vs. THE UNITED STATES, DEFENDANTS IN ERROR.

Whatever an agent does or says in reference to the business in which he is at the time employed, and within the scope of his authority, is done or said by the principal; and may be proved, as well in a criminal as a civil case, in like manner as if the evidence applied personally to the principal. [364] Where two or more persons are associated together for the same illegal purpose, any act or declaration of one of the parties in reference to the common object, and forming a part of the res gesta, may be given in evidence against the other. [365]

The act of 30th of March 1802, having described what should be considered as the Indian country at that time, as well as at any future time when purchases of territory should be made of the Indians; the carrying of spirituous liquors into a territory so purchased after March 1802, although the same should be at the time frequented and inhabited exclusively by Indians, would not be an offence within the meaning of the before mentioned acts of congress, so as to subject the goods of the trader, found in company with those liquors, to seizure and forfeiture. [368]

WRIT of error from the district court of the United States for the district of Ohio.

In the district court of Ohio, the district attorney filed, on behalf of the United States, a libel or information, stating that on the twenty-third day of September, in the year of our lord one thousand eight hundred and twenty-four, at and within the district of Indiana aforesaid, one William H. Wallace, a citizen of the United States, and having a license and legal authority to trade with Indian tribes within the territory of the United States, did take and carry into the Indian country, to wit, the country lying on the north or west side of the river Tippecanoe, for the purpose of trading with the tribes of Indians, sundry goods, wares, and merchandises, enumerating the same; that the said Wallace did, among the goods, wares and merchandises, carry into the said Indian country a large quantity of ardent spirits, to wit, seven kegs of whiskey, and one keg of shrub, for the purpose of vending or distributing the same among the Indian tribes, contrary to the statute in such cases made and

[American Fur Company vs. The United States.]

provided, and against the peace and dignity of the said United States.

The libel further alleged that John Tipton, Indian agent, at fort Wayne within said district, duly appointed to, and qualified for that office; and being duly authorised and instructed to search the stores and packages of traders among Indian tribes, upon suspicion that ardent spirits had been by the said Wallace carried into the said Indian country, for the purpose of being vended or distributed among the Indian tribes therein, caused the said goods, wares and merchandises to be searched, and upon such search, the seven' kegs of whiskey, and the keg of shrub, were found so carried by the said Wallace into the said Indian country, for the purpose of being sold or distributed among the Indian tribes therein, contrary to the statutes aforesaid in such case made and provided, and against the peace and dignity of the said United States; the said goods, wares, and merchandises were, on the day and year aforesaid, seized by the said John Tipton, and now by him held to be disposed of as the court directs.

The libel then proceeds to pray that the goods, &c. so seized may be deemed to be forfeited, and be disposed of according to law.

A claim and answer were filed by William H. Wallace, attorney in fact and agent for the plaintiffs in error, in which the allegations of the libel were denied; and tendered an issue, upon which the cause was tried by a jury, who found a verdict for the United States. On the trial three bills of exception were taken by the claimants' counsel to the opinion of the court.

The first exception stated, as ground of error, that on the trial of this cause, the district attorney offered to give in evidence to the jury, the transactions and declarations of one John Davis, with a view to prove the purpose of the defendant; to which the defendant by his counsel objected, and the court permitted the district attorney to give in evidence to the jury, the conduct and declarations of Davis, so far as he acted as the agent of the said defendant, or in con

[American Fur Company vs. The United States.]

junction with him, in relation to the charge made against the defendant in the information.

The second exception stated, that, on the trial of this cause, the district attorney moved the court to instruct the jury, that if they should believe from the evidence that had been adduced, that the defendant, as an Indian trader, did carry ardent spirits into the Indian country, and that the same were found therein among any part of his goods, that it is prima facie evidence of his having violated the acts of congress, on which this prosecution is founded, so as to throw the burden of proof upon the defendant; which instruction the court did give the jury; also instructing them that an Indian trader might lawfully carry ardent spirits into an Indian country for some purposes, as for instance, for medical use.

The third exception was, that at the trial of this cause, the defendant, by his counsel, prayed the opinion and direction of the court to the jury, that unless they are of opinion from the evidence of the cause, that the ardent spirits mentioned in the libel of information, were mingled with the bales of merchandise at the time of seizure, and carried into the Indian territory in violation of the act of 1820, entitled "an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers," and whilst said spirits and goods were remaining in the Indian territory, were seized upon by the officers of government, their verdict must be for the defendant: which opinion and instruction the court refused to give to the jury; but did instruct the jury that if they should be of opinion, from the evidence, that the defendant, as an Indian trader, did carry ardent spirits into the Indian country, which were found with a part of his goods therein, with the purpose of being vended or distributed amongst the Indian tribes, that all the goods of said trader designed for sale under his license to trade with Indian tribes, and seized in the Indian country, whether all or only a part of them were found with the spirits, are forfeited; and that the seizure thereof in a territory purchased by the United States of the Indians, but frequented and inhabited exclusively by Indian tribes, is

[American Fur Company vs. The United States.]

legal; to which refusal of the court to instruct as requested, and to the instruction given, the defendant by his counsel excepted, &c.

The case was argued for the plaintiffs in error by Mr Ogden; and by Mr Wirt, attorney general, for the United States.

Mr Ogden, for the plaintiffs, stated, that as to the first exception, no other remark would be made upon it, but that if the declarations of Davis were made at the time of the seizure, the evidence was legal; but if at any other time, the testimony was irregular.

On the second exception he argued, that the statute of the United States being highly penal in its provisions, should be construed with great strictness. It was incumbent on the government to show, not only that the spirits were carried into the Indian country, but that the same was done with an intent to sell them. The jury were to judge of the intention; but this was taken from them, by the instructions given by the court.

The power to search must only be exercised within the Indian territory. The goods which may be seized must be in the territory; but the instruction given to the jury is in its terms so general, as to authorise a seizure of goods belonging to Indian traders in any part of the United States. He argued that this was not the sound interpretation of the law. In support of the third exception, he said that the act of congress applied only to those territories, in which the Indian title had not been extinguished. Those were exclusively the Indian country. "Indian country," ex vi termini, means the country belonging to the Indians; and it was not shown that the place of seizure was of this description.

The provisions of the law relative to licenses to trade with the Indians, sustain and illustrate this construction.

Mr Wirt, attorney general, considered the instructions given by the court right in every particular. A reference to the act of congress would show, that it was the Indian country, and not the Indian territories, from which it was intended to exclude the sale of spirituous liquors. Their VOL. II.-2 V