
    Oscar Hope vs. Samuel W. Evans.
    If an actual settler in this state bring negroes from other states into it, with the bona fide intention to apply them to his own use, and afterwards change his intention and sell the negroes, such sale does not amount to a violation of the constitutional prohibition against the introduction of negroes for sale or as merchandise.
    H. filed his bill in chancery, averring that in the year 1836, he bought of E. a tract of land and negroes at a stipulated price, and by an entire contract, though the land was valued at a fixed price, and the negroes by the lot at a fixed price ; that he had paid part of the purchase-money, and given a deed of trust to secure the rest; that E. had introduced five of the negroes thus sold, into this state for sale, in violation of law; and the bill prayed a rescission of the contract; E. answered, and denied that he introduced the negroes for sale, but averred that he introduced them for his own use and afterwards changed his intention and sold them ; and it was in proof that E-was a planter, had never sold negroes by profession, and had made efforts to rescind the contract of the purchase of the land and negroes, before he sold the property, including the five alleged to be illegally introduced; and these five were never offered for sale, except in connection with the plantation and negroes; Held, although E. had spoken, before he bought the five, of buying other slaves to add to the place to enable him to sell the whole together; yet the facts did not constitute a violation of the constitution prohibiting the introduction of negroes as merchandise and for sale.
    Where negroes have been introduced into this state and sold since 1833, by an actual settler, the act of sale is not conclusive evidence of the intention of the introducer ; that is to be judged of, from all the circumstances.
    On appeal from the superior court of chancery.
    Oscar Hope, the complainant, filed his bill, alleging, that in the year 1836, he purchased of Evans a large quantity of lands and a number of slaves by one entire and undivided contract, for which he agreed to pay said Evans the sum of thirty-six thousand dollars; that, to secure the payment of notes given by him for this sum, he conveyed the same real and personal estate to the defendants, Pope and Hamer, in trust, to sell the same, on certain terms, in case of his default, and apply the proceeds to the payment of his debt; that the whole of the debt has been paid, except the amount due on two notes,, for the sum of forty-five hundred dollars each, due on the 1st of January, and on the 1st of April, 1841; that the trustees had advertised the land and slaves for sale, under the trust deed; and complainant prays that they be restrained from so doing by injunction. Complainant alleges that five of said negroes, purchased by him of said Evans, named Abner, Patsy, Terry and Silsy, and her child Jane, forming part of the consideration for which he was to pay said sum of thirty-six thousand dollars, were introduced into this state by said Evans in the year 1.836, from the state of Tennessee, as merchandise, in violation of the constitution of this state.
    The complainant insists that these facts render invalid the whole of said contract, and prays its.rescission, on condition of his restoring the property to Evans, and accounting for rent and hire, and claims to have refunded to him the amount of his payments, with interest on them.
    The answer of the defendant, Evans, admits the sale to the complainant, and the payments; he denies,’however, the introduction of the negroes for sale. He states that he had been a citizen of the state ever since A. D. 1831, and during all the period a slave-holder and cottofi-planter. He admits the introduction of the' five slaves, but states that they were for his individual use; that he put them on the plantation and worked them with his other negroes, until he sold the whole to the complainant. '
    Edward D. Edwards testified that he sold to' Evans the plantation and negroes afterwards sold to Hope; that Evans, after the purchase, brought negroes from Tennessee and put them on the place; that Evans bought of him in the spring, but was not to get possession until October; that when he took possession in October, the witness took his own negroes off, and Evans supplied their place with those brought from Tennessee; that they were brought, so far as he knew, forEa ns’s own use, and not for sale; that after Evans had taken possession of the place, he wanted to get off the contract, because he had not hands enough to work it properly, and that the witness sold him six more of his negroes, which were essential to give Evans a proper force; that in the October in which he took possession of the place, Evans told the witness he had seen a place on the Tallahatchie river, which he wished to buy, or had already bought, which suited him a great deal better than the place he had bought of witness, and that he therefore wished witness to let him off of the trade; which, however, the witness refused to do, and Evans soon after sold to Hope. The witness testified further, that he had known Evans from his infancy; that he was a man of education, had inherited a large fortune, and had never been^or been regarded by any as a negro-trader; that immediately after the sale to Hope, Evans moved to the place on the Tallahatchie, and had lived there ever since.
    Alvarez Bridges testified.that Evans, before he sold to Hope, offered to sell to him the land and negroes, which he afterwards sold Hope.
    James W. Cusack testified, that in the spring of the year 1836, Evans informed him that he had purchased of one Edwards a plantation in Yazoo county, which was the same subsequently sold by Evans to Hope; that he pmchased part, but not all, of Edwards’s negroes, and that he would visit the state of Tennessee, during the then ensuing summer, and would then purchase as many negroes as would supply the deficiency, bring them to this state, put them on the plantation he had bought of Edwards, when he thought he would be able to sell both land and negroes at an advance upon their cost; that Evans stated, that he expected, when he purchased of Edwards, to make á speculation out of the purchase, by supplying the deficiency of hands, and selling at an .advance. Upon cross-examination, he stated, that the five negroes, when brought by Mr. Evans from Tennessee, were put upon the plantation with his other negroes, worked with them, treated like them, and, finally, sold with them; and 'that Evans had been a citizen of this state, and property-holder, ever since the year 1831. <*■
    Samuel H. Galloway testified, that in the "forepart” of October, 1836, Evans had offered to sell him the land and negroes, which afterwards he sold to Hope; that about six of the negroes on the place were brought into Mississippi by Evans, for. sale, as he learned from Evans; that they were to be put on the land sold to Hope, fo& the purpose of selling with the land.
    Upon cross-examination, he stated, that the negroes were introduced into the state by Evans, to supply the deficiency in force upon the plantation purchased by Evans of Edwards, occasioned by the withdrawal of Edwards’s hands; that the introduction of the negroes was for Evans’s own use, and for the purpose of enhancing the value of the land, should he sell them together.
    Upon this state of pleading and proof, a motion was made to-dissolve the injunction obtained by Hope.
    The Chancellor dissolved the injunction; his opinion may be found reported in 1 S. & M. Ch. R. 203; from which an appeal was prayed to this court*.
    
      R. S. Holt and George S. Yerger, for appellant.
    The bill in this case was filed in the court below, for the purpose of obtaining a rescission of an entire contract,,by which Hope purchased of Evans certain real estate, and a number of negroes, and" other personal property.
    The rescission of the contract is claimed, on the ground that a portion of the negroes sold had been brought into the state as merchandise, or for sale, in violation of the constitution. The bill, which is sworn to, charges that they were so brought into the state, by Evans; and the answer admits their introduction from abroad, but denies the unlawful intent, insisting that they were introduced by Evans for'his own use.
    The question of intention, which is thus raised, is settled beyond all reasonable controversy, by the testimony. This shows, that in the spring of 1836, Evans repeatedly avowed his intention to. visit the ■ state of Tennessee during the summer, purchase negroes, and bring them to this state, and sell, them with the tract of land which he afterwards sold to Hope; that he returned to this state about the 1st of October, 1836, brought with him these negroes, and distinctly declared that he had purchased and brought them to this state for the purpose of selling them with this land, on speculation; that he was endeavoring to sell the land and negroes only a few days after his return; that after several ineffectual efforts to sell to others, he sold to Hope,- about the 1st of November.
    The fact that Evans made these declarations, and that he thus introduced and sold tlqe negroes, admitting of no question, it is difficult to conceive how the unlawful intent could be more conclusively proved. It is only through the medium and instrumentality of a man’s words and actions, that the intentions of his mind can be known. The existence of an intention in the mind is a fact which, from its nature, admits of no other proof; and if a subsequent and inteiested denial of the existence of such an intent, so expressed in word and action, be conclusive, as is here insisted, then is it impossible ever to fix upon a man an unlawful purpose, if he be reckless enough to deny it, when pressed by its consequences.
    Evans avowed the unlawful intent, when he had no motive for doing so, if it was untrue. He denies it, when he has every inducement of interest to utter a falsehood. He then avowed a present and existing purpose, or intention ; his denial is after the lapse of years, when his memory may have grown indistinct. His avowals of an unlawful intention were confirmed by his acts, and his acts were so explained by his avowals.
    But the denial of Evans is a mere equivocation. He says he brought the negroes to this state for his own use. To be used how 1 Why, as the northern drover uses his horses, when he brings them here; or as the merchant uses his wares — to be used in selling them. It is by the same play upon words that the answer of the witness, Galloway, to a cross-question, is relied on, as neutralizing his answers upon his examination in chief.
    Is Hope entitled, then, to a rescission of the contract 1 He certainly is.
    It is not shown, by the record, that he occupies the character of a particeps criminis ; and if he did, it would not vary the result. Contracts, made in violation of statutory or constitutional prohibitions, are vacated to subserve the ends of public policy, and for the relief of society at large ; not in view either of the merit or demerit of the party seeking to have them annulled.
    The contract being an entire one, and part of the consideration being unlawful, the contract is void in Mo. 14 Johns. R. 465. 4 Yerg. 541. Chit., on Cont. 536, 537. 10 Pet. R. 358, 360. 8 Pick. 512.
    A contract is executory, where either party has something to perform. Doug. R. 471. Loft’s R. 342. 2 Comyn on Cont. 110, 120. Either party may rescind an illegal contract, before he has executed his part of it. 15 Wend. 319. 22 Pick. 181. 1 Hall, 300: Chit, on Cont. 498-536 c., edition of 1839, and notes. 2 Wend. 319.
    The rule requiring two witnesses, or one with strong corroborating circumstances, is abolished, when bill is sworn to. The strength of the evidence must be looked to. Here the testimony is clear as to the object of the party.
    
      W. R. Miles, for the appellee.
    In this cause a bill was filed in the superior court of chancery, enjoining the sale of certain property embraced in a deed of trust to Pope and Hamer, for the use of defendant Evans'. The answer of Evans was filed, and full proof taken. A motion was thereupon made to dissolve, upon bill, answer and proofs, which was sustained; and the cause is now brought by appeal into this court, which has for its object the reversal of the order of the Chancellor, in dissolving the injunction.
    I respectfully insist there is no error in the decree of the Chancellor, and that this court cannot do otherwise than aifirm it. For a full and perfect abstract of the case I refer to 1 S. & M. Ch. R. 195, 196 and 197. For my own views upon the law governing the case I refer to my brief, pp. 197, 198, and 199, of the same book; and for an abler and more impartial exposition of the legal principles involved, I refer to the Chancellor’s opinion, at pages 203 - 206.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed in the superior court of chancery, by the appellant, alleging that in the month of November, 1836, he purchased of the appellee a large quantity of land and a number of slaves, for the sum of $36,000. The bill farther states that the contract was entire, though the land was estimated at the price of $18,000, the slaves at $17,000, and some other personalty at $1000. It also states that $9000 were paid at the time, and a deed of trust given upon the property to secure the payment of the remaining $27,000. States further that all of said purchase-money has been paid except some $9000, to coerce which the trustees are 'about to proceed under the trust deed.

It charges that five of the slaves were introduced into this state by said Evans in 1836, as merchandise, and sold in direct violation of the constitution of this state. It therefore prays for ah injunction to restrain the sale, and for a rescission of the contract upon the ground of a violation of the law. The bill offers to return and reconvey all the property, and prays that the money paid may be refunded. The bill was filed and injunction granted on the 29th of March, 1842.

The answer positively denies that any of the slaves were introduced into this state as merchandise, in violation of the constitution. The defendant states that he became a citizen of Mississippi in 1831, and has been a slave-holder and corn and cotton-planter from that time. Answer also states, that in the summer or fall of 1836, he brought five of said slaves from Tennessee for his own use, and put them with his other negroes on his plantation, and worked them in his crop, until he sold them with the plantation and ten other slaves to said Hope.

Several depositions were taken. The Chancellor upon motion dissolved the injunction, from which order an appeal was taken to this court.

It will be necessary to examine the testimony with some degree of minuteness. Samuel H. Galloway proves that in the early part of October, 1836, Evans proposed to sell to him the same plantation and negroes, which were afterwards sold to Hope. That about the 10th of the same month, Evans first offered them with the plantation for sale to Hope, and that they were put on the tract of land for the purpose of selling them together with the land. He states that six or eight of the slaves were brought into the state by Evans for sale, that they were to be put on the land for the purpose of enhancing its value, and sold with the plantation. This he learned from Evans himself; and on cross-examination he states that the said slaves were brought into the state by Evans for his own use, and to sell with the land.

James W. Cusack states that in the spring of 1836, Evans informed him, that he had purchased of one Edwards a plantation, the same which was afterwards sold’ to Hope; that he had also purchased of Edwards a portion of the hands, that he would visit the state of Tennessee during the ensuing summer, and would purchase some additional 'negroes, bring them to this state and place them on the plantation, when he thought he would be able to sell the plantation and negroes at a'' profit. That Evans said that when he purchased the property of Edwards he thought he could make a speculation out of it by supplying the additional hands that were wanting, and then selling it at an advance. Evans returned from Tennessee about the 1st of October, 1836, placed the negroes he brought with him upon the plantation with his other hands, and treated them all alike. Also stated that Evans had resided in this state since the spring of 1831. A. Bridges proved that in the fall of 1836, Evans offered to sell to the witness the plantation and negroes afterwards sold to Hope.

Edward D. Edwards proves that he sold the plantation to Evans in the spring of 1836, together with a portion of his negroes. He gave possession in October, 1836, to Evans, who then put the negroes which he brought from Tennessee upon the place. After he took possession he applied to witness to release him from the contract, which he refused to do. His reason for wishing to be released, was, that he had not hands enough to work it properly, and witness, as an inducement to ‘him to abide by the trade, sold him six more hands. While Evans was in Tennessee, he wrote to witness that he would get some one to take an interest in the place, and live on it and carry on the business. After his return he told witness that he had seen a place on the Tallahatchie river, which he wished to buy, or had already bought, which suited him better than this place, and that he wished witness to let him off the contract. Witness refused, and in a few weeks he commenced a trade with Hope. Witness stated that he had known Evans from his infancy, and that he had never been a negro trader. After he had sold the place to Hope, and finished gathering his crop, Evans moved up to the place he had bought on Tallahatchie river, where he had resided ever since. This is in substance all the testimony.

This contract was made before the enactment of the statute against the introduction of slaves into this state for sale; it must consequently be governed by the prohibition of the constitution alone. The clause of the constitution is as follows: “ The introduction of slaves into this state as merchandise or for sale, shall be prohibited from and after the 1st day of May, 1833: Provided, that the actual settler or settlers shall not be prohibited from purchasing slaves in any state in this Union, and bringing them into this state for their own individual use, until the year 1845.” This provision in itself amounted to a prohibition, without any legislative enactment, as this court has heretofore dicided. 5 How. 102; 7 Ibid. 15.

The object of this provision was to put down the trafile in slaves which had been previously carried on, and to prevent their introduction as merchandise. It was. not the object to prohibit actual settlers from purchasing slaves in other slave-holding states, and bringing them here for their own use, prior to the year 1845. The settler would not be permitted to evade the law, by entering into this kind of trafile, and making his residence a mere mantle to cover the illegality of the transaction. If he bring slaves into the state purchased abroad with the intention of selling them, and carry that intention into effect by sale, unquestionably he violates the law; but if he bring them with the bona fide intention to apply them to his own use, and afterwards change his intention and sell them, it does not, in our opinion amount to an infraction of the law.

Viewing the testimony in this light, we do not think the complainant has made out his case. These five slaves were included in a large sale of- other property. The evidence shows that the defendant had purchased land upon which he did not wish to reside, in consequence of a change in his plans after his purchase. He sometimes spoke of placing more slaves on it, in order to sell it; at other times of getting some one to live on it, and manage it in partnership, and he made efforts to get released from the contract. It does not appear that he offered it for sale, until he had made the effort to rescind and had failed. The proof shows that he was a planter, and man of property, and that he had never been engaged in that species of traffic intended to be prohibited. The answer flatly denies the intention attributed to him. It is not fair to presume, from the proof, that these slaves were introduced as merchandise or for sale, since there is no evidence that they were ever offered, except in connection with a large tract of land and other property. It would extend the provision beyond its legitimate scope, to hold that a settler, who had bought slaves in another state,and brought them into this for his own use, could not afterwards sell them together with the rest of his estate, without a violation of the law. The intention must govern in all such instances, and the intention must be inferred from all the circumstances. And whilst we guard the law from infraction, we must be careful not to deprive the citizen of rights which are secured to him.. We do not think that the intention to violate orto evade the law, is so made to appear by the testimony in this case, as to warrant a decree in favor of the complainant.

The broad language in 5 How. 102, would point to a different result. But in that case the person who sold the slaves was not a resident of this state, and the answer admitted that the slaves were introduced for sale. The point in this cause was not then involved. The court there said, “ the great object which the convention had in view was to suppress the slave trade in this state. They deemed that the time had arrived when-the traffic in this species of property ‘ as merchandise ’ should cease.”— “The act of introduction may in some cases be lawful; it will always be illegal, however, if the intent is to sell. The sale consequent upon the introduction, evidences the intent, and fulfils the illegal purpose.” In all this we concur, except in the remark that the sale is conclusive evidence of' the intention. In a case like the present, we think that the intention must be judged of, from all the circumstances taken in connection, “that the act does hot make guilt, unless the intention were guilty,” and that the intention must be gathered - from the whole proof in the cause.

Our view of the testimony makes it unnecessary to pass upon the legal questions which were discussed.

The decree of the Chancellor, dissolving the injunction, will be affirmed.  