Pillow. Brown & Childress, Ex. etc. [DECEMBER

PILLOW V. BROWN & CHILDRESS, Ex. etc.

SLAVE CONTRACTS-Held: The clause in the State Constitution that "all contracts for the sale or purchase of slaves are null and void and no court in this State shall take cognizance of any suit founded on such contracts," etc., is in violation of the Federal Constitution. INTEREST Suspension of.—When a debtor, without fault on his part, is prevented from paying the debt at and after maturity, through the act of the creditor or the law, interest should be abated during the time he is so prevented—and this, the debtor should show by affirmative proof. CONTEMPORANEOUS STIPULATIONS-Construction of.—Where a transaction

is evidenced by two papers, the connection between which is established by their contents, without any necessity of referring to other matter to connect them together, they will be taken as one entire agreement. LAW OF NATIONS.--During war, all intercouse is prohibited between enemies.

PENALTIES REMITTED.-Where a person agrees to do an act, which is neither

malum in se nor malum prohibitum, at the time of entering into the agreement, and is prevented from doing the act, by the law, it excuses him from all penalties that would otherwise arise from his omission. TRUSTS-When presumed.-Trusts are never presumed, unless clearly intended by the parties, except in cases, where a failure so to declare, would operate as a fraud upon one of the parties.

Appeal from Phillips Circuit Court.

HON. JAMES M. HANKS, Circuit Judge.

Pillow, Garland & Nash, for appellant.

The main question involved, and raised for the decision of this court is, as to the validity of the notes and the powers of the courts to adjudicate the question-and it is submitted on behalf of the appellant, that slavery, as it is known to have existed in this and other States, was not recognized by the Constitution of the United States, and was not compatible with the spirit and purpose of that instrument. The 6th article of the Federal Constitution renders all State Constitutions and laws, in conflict with it null and void-and article 5, of the amendments declare: "No person shall be deprived of

TERM, 1870.] Pillow v. Brown & Childress, Ex. etc.

life, liberty or property, without due process of law." From this it is evident that the negro was a "person," and so designated by the Constitution. As to the meaning of the words "without due process of law," See Bouv. Law. Dec. vol. 1, p 512; Story's Cons. Law, vol. 3, p. 264, 661; 18 Howard (U. S.) 272. If legally free, all bonds, notes, etc., given to enslave him were void, under the United States Constitution.

Pointer's breach of covenant being occasioned by the law, he was released therefrom, and, in consequence, Pillow was released from his obligations to pay.

The non-performance of a contract will always be excused where it is occasioned by the act of the law. Chitty on Contracts, pp. 742, 743, and note; Lord Angilcia v. Church Warden of Rugeby, 6 Q. B., pp. 104, 107; Chancy v. Overman, 1 Deven § Botts, p. 402; American Jurist, October, 1833, art. 3, p. 251.

So, also, if a man contract to do an act, in consideration that another contracted to do certain things on his part, which is then lawful, but afterwards becomes unlawful, or if it should turn out that the latter is unable to do what he engaged, the contract is at an end. Chitty on Contracts, p. (top) 475; Charter v. Lease, 4th vol., pp. 298 and 231.

If title to goods sold totally fails, contracts would not be binding and may be rescinded, even though the possession of the vendee be wholly undisturbed. First vol. Story on Contracts, page (top) 484; Second vol. Kent's Com., sec. 39, pp. 472 and 469, note and authority; see, also, Wainright v. Bridges, 19 vol. La. R's. 317.

A vendor is bound to know that he possesses that which he proposes to sell; and even though the subject of the contract be known to both parties to be subject to a contingency, which may destroy it immediately, yet if the contingency has already happened, the contract will be void. 2d vol. U. S. Digest, p. 288; Allen & Hammon, 11 Peters, p. 63.

Lord Chief Justice ABBOT, in his work on Shipping (p. 596), lays down this principle: "If an agreement be made to do an act,

Pillow . Brown & Childress, Ex. etc. [DECEMBER

lawful at the time of such agreement, but afterwards, and before the performance of the act, the performance be rendered unlawful by the government of the country, the agreement is absolutely dissolved." See, also, Abbot on Shipping, p. 597; 1 Jur. N. S., p. 758; 8 M. & Lee, p. 267; 3 C. L. R., p. 930; 3 B. § P., p. 296; Evans v. Hutton, 4 Man. & Gran. These are all English cases. See 12 Mass., page 370; 15 Johns., p, 14; 16 Johns., p. 348; 2 Wash. C. C., p. 312-American cases.

In regard to powers of the people of a State, assembled in convention, it may be well to see what has been decided by the Supreme Court of the United States.

In the case of Livingston v. Moore, 7 Peters, 546, that court decreed "that the power of sovereignty existing in a republic resides in the people-not as individuals, but in their politic capacity; that the powers existing in every body politic, in forming a government, is distributed according to the will of the sovereignty, and in the quantity it pleases, and imposes what checks it pleases upon the public functionaries."

In the case of The Bank of the United States v. Daniel, in 12 Peters, p. 33, and in 13 Peters, 520; Charles v. Virgina, 6 Wheaton, 414; Craig v. Missouri, 4 Peters, 463; and in Ohio Life Insurance Company v. Debotts, 14 Howard, 428, the Supreme Court held that the States of the Union were sovereign within their own limits, in all matters not surrendered in the Constitution to the Federal government.

In the case of Dodge v. Worseley, 18 Howard, 349, the SuCourt held that the constitution is supreme over all preme departments of the government, and anything done, unauthorized by it, is unlawful."

Pike, Adams & Pike, English, Gantt & English, for appellees.

As to the general right of recovery by the executors of Pointer, we respectfully submit to the consideration of the court the following cases, to wit:

A partition of an intestate's estate, consisting of land and

TERM, 1870.] Pillow v. Brown & Childress, Ex. etc.

slaves, which was made and confirmed, without objections then taken, by the decree of a court of equity, in 1864, allowed only slaves to complainants, but no land. Held valid. Slaves did not become free, either de jure or de facto, by the emancipation proclamation, in 1862. Pickett v. Wilkins, 13 Richards. S. C. Eq., 366.

Emancipation is not a breach of covenant of warranty that slaves sold "are slaves for life," and is not a defense to notes given for the purchase money. The warranty was of the status of the slaves at the time of sale, not against a future act of government. Hana v. Armstrong, 34 Ga., 232. So of a warranty "to be slaves for life." Bass v. Ware, ib. 386.

A warranty on a sale of slaves, that they "are slaves for life," is not broken by their subsequent emancipation. Neither did the ordinance of emancipation affect such previous sale, but the vendor can recover the whole purchase money. Bradford v. Jenkins, 41 Miss., 328; Polk, Adr. v. Pledge, 5 Coldwell, 389; Newman v. Stear, 5 Coldwell, 390.

Compulsory payment of a debt to a receiver, under requisition acts of the Confederate government, is no defense to a suit brought for the same since the war, nor was the running of interest on such debt suspended during the war. Shortridge v. Macon, U. S. circuit court, 1 Phillips N. C., 392. See, also, Brown's Executors v. Hawkins' Executors, 3 Bush. Ky. Reports, 558; Hughes v. Todd, 2 Duvall, 188.

STORY, Special C. J.

In September, 1865, Pointer filed his bill against Pillow and Coolidge, in which he alleged that, on the 28th day of December, 1860, he sold to Pillow eighty-five negroes, which Pillow took into possession, for the sum of one hundred and nine thousand two hundred and six dollars and twenty-five cents, to secure the payment of which sum Pillow executed his four writings obligatory, payable on the first days of Januay, 1862, 1863-64 and '65, and on the same day executed, jointly with

Pillow v. Brown & Childress, Ex. etc. [DECEMBER

Mary E. Pillow, his wife, a mortgage in favor of Pointer upon two of his plantations, known as the "Defeat Cane" and "Lake" places, and forty-three of the slaves purchased of Pointer. Pointer further alleged that, on the 16th day of April, 1862, after the recording of the above mentioned mortgage, Pillow made a contract of sale with Henry P. Coolidge, whereby he sold to Coolidge his four plantations, known as "Defeat Cane," "Lake," "River," and "Mound" places, together with all of his slaves, cotton and other personal property, for the sum of $575,000, which sum was payable in five equal installments, and for which Coolidge executed his five bills of exchange.

The contract recites that "there is a mortgage on the 'Defeat Cane' and 'Lake' places, and about forty-three of the negroes, in favor of John Pointer, of Giles county, Tennessee, for the purchase money of eighty-five of the negroes, which is on record in Phillips county. This sale is made subject to this mortgage and all of said Pillow's existing debts, which said Coolidge will pay out of the cotton crop now on hand, and subsequent crops, or out of the purchase money, and when so paid, the same will be credited to the purchase money due from said Coolidge, and allowed accordingly." Pointer also alleged, that the property covered by the mortgage of Pillow and wife to him, was not sufficient to pay the debt due from Pillow to him, the property having greatly depreciated in value during the war, and prays that Coolidge may be declared to be a trustee charged with the payment of all of Pillow's debts; that the stipulation of the 16th of April may be declared to be a lien in favor of the complainant, for the payment of the debt upon all of the property mentioned in the contract; that the defendants, or one of them, may be required to pay the debt; that the mortgage may be foreclosed, and the usual prayer for general relief.

Pillow filed his answer, in which he admits the purchase by him of eighty-five negroes from Pointer; that he gave a mortgage, jointly with his wife, to secure the purchase money;