American Fur Company v. United States
27 U.S. 358

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U.S. Supreme Court

American Fur Company v. United States, 27 U.S. 2 Pet. 358 358 (1829)

American Fur Company v. United States

27 U.S. (2 Pet.) 358

Syllabus

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.

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.

The Act of 30 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 offense 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.

In the district Court of Ohio, the district attorney filed on behalf of the United States a libel or information stating that on 23 September, 1824, 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

Page 27 U. S. 359

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 authorized 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 claimant's 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 conjunction

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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 it was 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, its 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 it 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

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

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