Page:Dakota Territory Reports.djvu/70

 tion below. (Greenleaf on Evidence, Vol. 2, Redfield's edition, 1868, p. 550, and notes and authorities there cited; Sedgwick on the Measure of Damages, 5th edition, 615, Note 1, and authorities.)

, J.—The plaintiffs brought an action of trespass de bonis asportatis against the defendant for taking and carrying away a stock of merchandise of the plaintiffs, from their store, which was situated near the Northern Pacific Railroad on the west side of James River. The defendants admitted the taking, and justified upon the grounds that they were commissioned officers in the United States army and on duty at Fort Seward; that liquors constituted a part of said stock taken by them, and had been introduced by the plaintiffs, and that the country where the store and the stock of the defendants were situated, was "Indian country" within the meaning of the Non-Intercourse Act of 1834, and the amendments thereof. 4 U. S. Statutes, 729; 13 do., 29, and pleaded other matter in mitigation of damages.

The plaintiffs moved to strike out the matter pleaded in justification on the grounds that it was sham, frivolous and constituted no defense to the plaintiff's action. And the court below granted this motion, and the appellant assigns this ruling of the court as one, and the chief error.

The country between the James and Missouri rivers has from the earliest times been in the occupation and under the control of the Sioux or Dakota Nation of Indians. The more northern portion, including the country where the plaintiff's store was situated, having been occupied by the Yanktonaise band, and the more southern by the Yankton band of that nation, until cessions to the United States were made by the respective bands.

On the 29th day of April, A. D, 1868, the United States concluded a treaty with the different bands of the Sioux, including the Yanktonaise band, and ratified and confirmed the same on the 16th day of February, A. D. 1869. 15 U. S. Statutes, 647. By the second article of that treaty, page 636, the Indians, parties thereto, "henceforth ***** re-