[Allen v. Hammond.]

The contract does not provide for such a case; and it could not have been within the contemplation of either party. Services were made the basis of the compensation agreed to be paid; but the allowance of the claim superseded all scrvices in the case.

The equity of the complainant is so obvious, that it is difficult to make it more clear by illustration. No case, perhaps, has occurred, or can be supposed where the principle on which courts of equity give relief, is more strongly presented than in this case. The contract was entered into through the mistake of both parties; it imposes great hardship and injustice on the appcllce, and it is without consideration. These grounds, either of which in ordinary cases, is held sufficient for relief in equity, unite in favour of the appellee. Suppose a life estate in land be sold, and at the time of the sale, the estate has terminated by the death of the person in whom the right vested; would not a court of equity relieve the purchaser? If the vendor knew of the death, relief would be given on the ground of fraud; if he did not know it, on the ground of mistake. In either case, would it not be gross injustice, to enforce the payment of the consideration.

If a horse be sold which is dead, though believed to be living by both parties, can the purchaser be compelled to pay the consideration?

These are cases in which the parties enter into the contract, under a material mistake as to the subject matter of it.

In the first case the vendor intended to sell, and the vendee to purchase a subsisting title, but which in fact, did not exist; and in the second, a horse was believed to be living but which was in fact dead.

If in either of these cases, the payment of the purchase money should be required, it would be a payment without the shadow of consideration; and no court of equity is believed ever to have sanctioned such a principle. And so in the case under consideration; if Hammond should be held liable to pay the demand of the appellant, it would be without consideration.

There may be some cases of wager, respecting certain events, where one of the contingencies had happened at the time of the wager, which was unknown to both parties, and which was held not to invalidate the contract. Of this character, is the case of the Earl of March v. Pigot, 5 Burr. 2802. But the question in that case, arose upon the verdict of a jury, on a rule to show cause, &c.; and

[Allen v. Hammond.]

Lord Mansfield 66 says: the nature of the contract, and the manifest intention of the parties, support the verdict of the jury (to whom it was left without objection,) that he who succeeded to his estate first, by the death of his father, should pay to the other without any distinction, whether the event had or not, at that time, actually happened."

In 1 Fonblanque's Equity, 114, it is laid down, that where there is an error in the thing for which an individual bargains, by the general rules of contracting, the contract is null, as in such a case the parties are supposed not to give their assent. And the same doctrine is laid down in Puffendorff's Law of Nature and Nations. b. 1. c. 3. sec. 12.

The law on this subject is clearly stated, in the case of Hitchcock v. Giddings, Daniel's Reports, 1; where it is said, that a vendor is bound to know that he actually has that which he professes to sell. And even though the subject matter of the contract be known to both parties to be liable to a contingency, which may destroy it immediately; yet if the contingency has already happened, the contract will be void.

By the decree of the circuit court, on the payment of the amount, including interest, which is due from the appellee to the appellant, he is required to deliver up to be cancelled the agreement entered into on the 27th of January, 1832, which leaves the parties as they were before the contract; and as we consider the decree just, and sustained by principle, it is 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 Rhode Island, 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.

THE UNITED STATES, PLAINTIFFS IN ERROR V. THE SHIP GARONNE, WILLIAM SKIDDY AND OTHERS, CLAIMANTS.

THE UNITED STATES, PLAINTIFFS IN ERROR V. THE SHIP FORTUne, VASSE MANUEL, CLAIMANT.

Certain persons, who were slaves in the state of Louisiana, were by their owners taken to France as servants; and after some time, were by their own consent sent back to New Orleans; some of them under declarations from their proprietors that they should be free; and one of them, after her arrival, was held as a slave. The ships in which these persons were passengers, were, after arrival in New Orleans, libelled for alleged breaches of the act of congress of April 20th, 1818, prohibiting the importation of slaves into the United States. Held, that the provisions of the act of congress do not apply to such cases. The object of the law was to put an end to the slave trade, and to prevent the introduction of slaves from foreign countries. The language of the statute cannot properly be applied to persons of colour who were domiciled in the United States; and who are brought back to their place of residence, after their temporary absence.

APPEALS from the eastern district of Louisiana.

The French ship Garonne, from Havre, and the ship Fortune, also from Havre, were libelled by several proceedings by the United States, at New Orleans, in the district court of the United States, January, 1836, under the provisions of the first section of the act of congress, passed April 20, 1818, entitled "an act, in addition to an act, to prohibit the introduction of slaves into any port or place, within the jurisdiction of the United States, from and after the first day of January, 1808, and to repeal certain parts of the same."

The ship Garonne had arrived in New Orleans about the 21st of November, 1835; having on board a female, Priscilla, who had been born a slave in Louisiana, the property of the widow Smith, a native of that state, and resident in New Orleans. Mrs. Smith and her daughter being in ill health, went from New Orleans with her family, in 1835, to Havre, taking with her, as a servant, Priscilla; having previously obtained from the mayor of the city a passport for the slave, to prove that she had been carried out of the state, and that she should again be admitted into the same. Priscilla being desirous of returning to New Orleans, from Paris, was sent back on board the VOL. XI.-K

[United States v. Skiddy.]

Garonne, under a passport from the charge des affaires of the United States, in which she was described as a woman of colour, the servant of a citizen of the United States. On the arrival of the ship, the baggage of the girl was regularly returned as that of the slave of Mrs. Smith.

The facts of the case of the ship Fortune were as follow: Mr. Pecquet, a citizen of New Orleans, went to France in 1831, taking with him two servants, who were his slaves; as was alleged in the testimony, with an intention to emancipate them. They remained with the family of Mr. Pecquet, in France, for some time, and returned to New Orleans at their own instance, in the ship Fortune, in 1835, as was asserted, as free persons. The passport of the American legation, represented these females as domestics of Mr. Pecquet, of New Orleans, a citizen of the United States. After their return to New Orleans, it did not appear that they were claimed or held by the agent of Mr. Pecquet, or by any person, as slaves; but no deed of emancipation for either of them had been executed. On the arrival of the Fortune, in the list of passengers which was certified under the oath of the captain, these persons, by name, were stated to be the slaves of Mr. Pecquet. The declarations of Mr. Pecquet that these persons were brought back as free, and that it was his intention that they should be free, were in evidence.

The district court of Louisiana dismissed both the libels, and the United States prosecuted these appeals.

The case was argued by Mr. Butler, attorney-general, for the United States; and by Mr. Jones, for the defendants.

Mr. Butler stated, that in the case of the Garonne the question was presented whether a slave who had been carried out of the United States by a master, could be afterwards brought back to the United States.

The words of the statute are, that "it shall not be lawful to import or bring, in any manner whatsoever, into the United States," &c., "any negro, mulatto, or person of colour," with intent to hold, sell, or dispose of "such persons as a slave, or to be held to service or labour."

It is not claimed that the United States have, under the constitutional power" to regulate commerce," a right to interfere with the

[United States v. Skiddy.]

regulations of states as to slaves. The powers of congress apply to foreign commerce.

The words of the statute are, "import" or "bring," and the case stated in the proceedings is fairly within the law. The persons were brought into the state of Louisiana as slaves, and are here held as such. If the words of the statute comprehend the case, the Court will apply them; and they will not be restrained from doing so`by the supposition that the case to which they apply was not intended by congress.

In the case of the ship Fortune, the attorney-general argued, that there was error in the decree of the district judge in dismissing the libel of the United States, on the ground that as the persons of colour brought into New Orleans were free, the act of congress was not violated. This was not the issue. The allegation on the part of the United States is, and the evidence establishes that persons of colour were brought into the United States by the ship Fortune, and that they were to be held to service or labour, either as slaves or otherwise. In either case the law is broken, and the penalties are incurred by the ship.

It is not necessary to show that the persons were held as slaves after their arrival in New Orleans. Were they brought into the United States as slaves? This is established by the list of passengers sworn to by the captain of the ship. After naming them, he states, "these two negresses are slaves of Mr. Pecquet, and are sent to New Orleans by their master." In the United States v. Gooding, 12 Wheat. 460; 6 Cond. Rep. 572; it was decided that the declarations of the master of a ship in the transactions of the vessel, being a part of the res gestæ, are competent evidence of the voyage. The declaration of the master in this case was in the course of his duty. If the persons were brought to the United States, not as slaves, but to be held to service or labour, the case is the same.

If the construction given by the district court of Louisiana is maintained, the act of 1807, to which this is a supplement, will be defeated. The objects and purposes of that law were to prevent any persons of colour being brought into the United States, to be held to service or labour. If evidence of intention is to acquit, the law will be null. The question is whether not having made the persous brought in the vessel free, the intention only to emancipate them will operate to defeat the law. Suppose the intention of the owner, or his instructions to his agent not carried into effect, how would the