
    Mingo & Allen v. Goodman.
    The 7th article of the treaty concluded between the United States and the Chickasaw Indians, on the 20th of September, 1816, provides that, “any person whomsoever, of the white people, who shall bring goods and sell them in the nation contrary to this article (of treaty) shall forfeit the whole of his or her goods, &c.”
    The defendant justified under the treaty for seizing certain goods and merchandise, and set out the 7th article thus: that any person or persons whatsoever, of the white people, who should bring goods to sell and offer to sell them in said nation, &c.; the court held the variance fatal.
    To constitute the offence under the treaty, it is not only necessary that the goods should be brought and offered for sale, but there must be an actual sale.
    ERROR to Munroe circuit court.
    Gholson, for plaintiffs in error.
    Cocke, contra.
    
    On the part of the defendant it was alleged, that the defendant in error brought an action of trespass in the court below against the plaintiffs in error, for seizing, taking and conveying away certain goods, wares and merchandise of the plaintiffs below, with force and arms.
    The plaintiffs in error pleaded two pleas.
    1. Not guilty; on which issue was taken and a verdict for the defendant in error in the court below, for 595 dollars and 9 cents, for which ánd costs of suit judgment was rendered.
    2. Plea, that on the 20th of September, 1816, a treaty was had and made between the Chickasaws and the United States, by which it was provided that no licence should be granted by the agent of the Chickasaws to entitle any person whatever to trade or traffic merchandise in said nation, and that any person or persons whomsoever, of the white people, who should bring goods to sell and offer to sell them in the said nation, in violation of said treaty, should forfeit the whole of his or her goods, one half to the nation aforesaid and the other half to the government of the United States; and that in all cases where a violation of ^aid provision might take place, and the goods so taken for traffic in the nation. were seized, they should be delivered up to the agent aforesaid, whose duty thereon was to hear and to judge the cause accordingly; and avers that in violation of said treaty, said plaintiffs, being white men, (citizens of the United States,) did carry and bring into the confines of said Chickasaw nation of Indians, the goods mentioned in the declaration, for the purpose of then and' there trafficking and trading the same to the Indians of said nation, and then and there did offer thé sanie for sale to said Indians, and in violation of said treaty. That the defendant is a native of the nation and one of its chiefs, and according to the provisions of said treaty and of his right as such, seized on the said goods and delivered them up to John L. Allen, the sub-agent of said nation, and at that time the acting agent in the absence of the principal agent, to be dealt with according to law. Which the defendant did and had a right to do.
    To this plea there was demurrer and joinder. The demurrer is assigned for error.
    The words of the treaty are—
    
      “ It is agreed by the commissioners on the part of the government and the chiefs of the nation, that no more licenses shall be granted by the agent of the Chickasaws to entitle any person or persons to trade or traffic merchandise in said nation; and that any person whomsoever of the white people who shall bring goods and sell them in the nation contrary to this article shall forfeit the whole of his or her goods, one half to the nation and the other half to the government of the United States. In all cases where this article is violated and the goods are taken and seized) they shall be delivered up to the agent, who shall hear the testimony and judge accordingly.” See 7th article of the Chickasaw Treaty of the 20th September, 18.16; Pamphlet Acts of the 2d session of the.14th Congress, 295.
    It is too obvious, on reading the above article, that if is a penal law to require any argument or authority to manifest it such, and equally useless would it be to furnish authorities to the principle that such laws are to be construed strictly; every book that treats on the subject holds this as universal in principle.
    The demurrer to the plea involves three inquiries. 1. Was the offence mentioned in the article committed as shown by the plea?
    2. Did the plea show that the agent heard the testimony and paade the adjudication of condemnation?
    3. Is it competent for the property of the citizen to be thus arrested and condemned by such a tribunal within the limits and sovereignty of this state?
    As to the first the words of the said article are—
    “Any person or persons (whomsoever of the white people) Avho shall bring goods to sett and offer to sett them in the nation in violation, &c.:” and the averment is that the plaintiff (being a white man) did carry and bring into the confines of the Chickasaw nation, the goods and merchandise in the declaration alluded to, for the purpose of there and then trafficking and trading the same to the Indians of said nation, and did there and then offer the same for sale to said Indians of said nation in violation, &c. The discrepance is this: The law is, if any person shall sett. The plea avers that the plaintiff did then and there offer the same for sale. The doctrine of pleading is only the putting into proper and legal form the facts which in law show the justness of the plaintiff’s demand, or the discharge and defence made by the defendant.
    The law requires the plaintiff to set forth his .complaint with certainty and truth, that the defendant may be enabled to make a proper answer thereto, and the court to give a proper judgment thereon. 5 Bac. Abr. 328.
    The gist, and every thing that is of essence to the 'plaintiff’s action, must be set forth in the declaration. 5 Bac. Abr. 329.
    As the plaintiff’s action must have all essentials necessary to maintain it, so the defendant’s bar must be substantially good; that is, the essence or gist of the plea must be such as, if found for the defendant, the court, according to the rules of law, must give judgment for the defendant. 5 Bac. Abr. 404.
    
      An offer to do an act is by no means doing an act. The treaty says, “if any person shall sell.” An offer for sale certainly creates no forfeiture.
    Every man’s plea shall be taken most strongly against himself, as every body is presumed to make the most of his own case. 5 Eac. Abr. 322.
    2. Does the plea show that the agent heard the testimony and made the adjudication of condemnation? The words of the treaty are, “the goods taken or seized shall be delivered up to the age.nl, who shall hear the testimony and judge accordingly. The plea is, that the defendant did according to the provisions of said treaty, and of his right as such, seize the goods and deliver them up to John L. Allen, (the sub-agent,) of said nation, and at that time ■the acting agent in the absence of the principal agent, to be dealt with according to law.
    The determination of a tribunal or person, of any matter, when they had no jurisdiction, is a nullity. 9 Cowen, 227, 229.
    The sub-agent had no authority to act on the matter; the temporary absence of the agent could give him no such authority; a deputy judge or justice or judicial functionary is never admissible.
   Mr. Justice Smith

delivered the opinion of the court.

This was an action of trespass, brought to recover damages for an alleged unlawful seizure of' certain goods and merchandise. The plaintiffs in error, who Avere the defendants in the original suit joined in their defences; but pleaded substantially the same plea; which were, first, the general issue; and, secondly, the special pleas of justification. Upon the first issue was joined and verdict found and judgment renewed in favor of Marshall Goodman, the surviving plaintiff. To the special pleas, Goodman demurred, and his demurrer was sustained by the court before whom the cause was tried.

The question of the correctness of the decision upon the demurrer is the only one presented by the record.

The defendants justified under the 7th article of the treaty concluded on the 20th of September, 1816, between the United States and the Chickasaws; and set out this article of the treaty in the following words, to wit: “that no license should be'granted by the agent of the said Chickasaws, to entitle any person whatsoever, to trade or traffic merchandise in said nation; and that any person or persons whatsoever (of the white people) who should bring goods to sell and offer to sell them in the said nation, in violation of said treaty, should forfeit the whole of his or her goods, one half to the nation, and the other half to the government of the United States.” And it was further provided in said treaty, that in all cases where a violation of said provision might take place, and the goods so taken for traffic in the nation were seized, they should be delivered up to the agent aforesaid, whose duty thereon, was to hear the evidence and to judge the cause accordingly.

In this recital there is a manifest variance from the language of the treaty referred to. It provides, “ that any person whosoever, of the white people, who shall bring goods and sell them in the nation, contrary to this article (of the treaty,) shall forfeit the whole of his or her goods, &c.” See treaty with the Chickasaws, Acts of Cong. 1817, 295. The difference between this provision of the treaty and as it is'set out in the defendant’s pleas is material.

To constitute the offence 'under the treaty which would subject the party to a forfeiture of his goods, it is not only necessary to “ bring goods to sell and offer to sell them in the nation, in violation of said treaty;” but that he should “ bring goods and sell them in the nation,” &c. It was necessary that the defendants should show the authority by which they made the alleged seizure, and having failed to do so in the • matter material to the validity of their defence, their pleas are necessarily void.

' There is another objection which applies to the averment in the pleas equally fatal.

The provision of the treaty above recited is obviously of a penal character. To constitute a sufficient justification it was therefore necessary for the defendants to have shown, that the plaintiffs had committed the act, which, by the letter and spirit of the treaty) would subject them to the penalty and authorise the seizure of their goods. But this they have failed to do. It is averred that the plaintiffs (being white men, citizens of the United States) did carry and bring into the confines of the said Chickasaw nation of Indians, said supposed goods and merchandise in the declaration, for the purpose of then and there trading and trafficking the same to the Indians of said nation; and then and there did offer the same for sale to the said Indians and in violation of the said treaty so made in 1816, &c.

The acts forbidd.; i by the treaty upon the commission of which the penalty would attach, were not the bringing and offering to sell goods, in the nation. The treaty provides, that any person whosoever (of the white people) who shall bring goods, and sell them in the nation, contrary, &c., shall'forfeit, &c. See 7th article of said treaty.

To consummate the offence, then, which, under the treaty, Avould authorise a seizure of the merchandise of the trader, it is essential that there should be a sale of the goods so brought into the nation. The defendant’s pleas of justification were consequently void, and the decision of the court correct.

Judgment affirmed.  