Benjamin Harris, Plaintiff In Error v. James Wall

• Decision Date: 01 January 1849
• Parties: BENJAMIN D. HARRIS, PLAINTIFF IN ERROR, v. JAMES D. WALL
• Court: U.S. Supreme Court

48 U.S. 693

7 How. 693

12 L.Ed. 875

BENJAMIN D. HARRIS, PLAINTIFF IN ERROR, v. JAMES D. WALL.

January Term, 1849

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.

In February, 1839, the following sealed note was executed:——

$10,391.06.

Clinton, Miss., February, 1839.

On or before the first day of January, eighteen hundred and forty, we or either of us promise and bind ourselves, our heirs, &c., to pay to Benjamin D. Harris, his heirs or assigns, the sum of ten thousand three hundred and ninety-one dollars and six cents, with eight per cent. interest thereon from the date hereof.

Given under our hands and seals, the day and date above written.

T. W. WINTER. [SEAL.]

JAS. M. WALL. [SEAL.]-

Suit was brought upon this note at May term, 1840. Judgment went against Winter by default, and it is not necessary to notice him further.

Wall put in three pleas. The first two were substantially the same, and were, that the introduction of slaves into Mississippi, as merchandise, after the first day of May, 1833, was prohibited by the constitution of that State, and the contract for their purchase and sale, therefore, void. These pleas averred that the note was given for the purchase of slaves so introduced. To these pleas the plaintiff took issue.

The third plea was, that the slaves were above the age of fifteen years, and were introduced into the State of Mississippi from one of the United States as merchandise, and sold to Winter by the plaintiff, without having complied with the fourth and fifth sections of an act entitled 'An act to reduce into one the several acts concerning slaves, free negroes, and mulattoes,' passed June 15th, 1822. To this plea the plaintiff demurred.

In November, 1844, the cause came on for trial, issue having been joined upon the first two pleas, and a joinder in demurrer having been filed as to the third. The jury found a verdict for the defendant upon the issue upon the first two pleas, and the record did not show any judgment of the court upon the demurrer.

In the course of the trial, the plaintiff, Harris, took four exceptions to opinions of the court.

1st. As to the admissibility in evidence of the deposition of William S. Rayner.

2d. As to the admissibility in evidence of parts of the deposition of Benjamin G. Sims.

The 3d and 4th were, that Wall had filed a bill in chancery against Harris, which Harris had answered; and that Wall could not, in a trial at law, introduce evidence to contradict Harris's answer.

1st exception,—as to Rayner's deposition.

The following is the notice and certificate attached to the deposition.

'Jackson, May 1, 1843.

'Mr. B. D. HARRIS, or Messrs. RIVES & SHELTON, his Attorneys at Law:——

'Take notice, that on Wednesday next, the third day of May, A. D. 1843, at the clerk's office of the Circuit Court of the United States for the Southern District of Mississippi, between the hours of eight o'clock, A. M., and three o'clock, P. M., at the town of Jackson, I shall take the deposition of William S. Rayner, (about to depart the State,) to be read on the part of the defendant de bene esse in a certain action at law, depending in said court, wherein said Harris is plaintiff, and Winter and Wall defendants; where you can attend. Yours, &c.

'GEO. W. MILLER, U. S. Commissioner.'

Marshal's return:—'Executed by handing Wm. M. Rives a copy between the hours of eleven, A. M., and twelve, M., May 1, 1843.

'ANDERSON MILLER, Marshal,

By Z. P. WARDELL, D. M.'

'The deposition of William S. Rayner, taken before the undersigned commissioner of affidavits in and for the Southern District of Mississippi, at the clerk's office of the Circuit Court of the United States for the Southern District of Mississippi, in the town of Jackson, between the hours of eight o'clock, A. M., and three, P. M., on the 3d day of May, A. D. 1843, according to a notice by me issued and hereunto annexed; said deposition to be read as evidence on the part of the defendant de bene esse in the trial of a certain action at law, depending and mentioned in the Circuit Court of the United States for the Southern District of Mississippi, wherein Benjamin D. Harris is plaintiff, and Winter and Wall defendants.'

(Then follows the deposition, to which is attached the following certificate:——)

'United States of America, Southern District of Mississippi, sct.

'I, George W. Miller, commissioner of affidavits, &c., in and for the Southern District of Mississippi, do hereby certify that the foregoing deposition of William S. Rayner was taken, subscribed, and sworn to before me, and by me reduced to writing in the presence of said witness, at the time and place mentioned in the caption thereof, at the time of which I was attended by James M. Wall, one of the defendants, and William M. Rives, Esq., attorney for plaintiff, who declined putting any interrogatories to said witness. I further certify that I am not a counsel for either party, or interested in the event of said cause.

'Given under my hand and seal at Jackson, this 3d day of May, A. D. 1843.

'GEO. W. MILLER, U. S. Commissioner.'

The court allowed the deposition to be read in evidence, to which the plaintiff excepted.

2d exception,—respecting the deposition of Sims.

This deposition had upon it the following indorsement, viz.: - 'When sworn to, it is agreed this deposition of B. G. Sims may be used in the cause stated in the caption 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 he 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 by 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 Peters, 355; The Samuel, 1 Wheaton, 9; The Patapsco Ins. Co. v. Southgate, 5 Peters, 604; The Thomas and Henry, 1 Brockenbrough, 373.

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 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 cause; 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 existance 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,...