Harrell v. Watson

• Citation: 63 N.C. 454
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1869
• Parties: S. S. HARRELL, Administrator, . v. MEREDITH WATSON and others.

63 N.C. 454

S. S. HARRELL, Administrator, .

v.MEREDITH WATSON and others.

Supreme Court of North Carolina.

June Term, 1869.

Bonds require no consideration.

The sale of a slave in September 1864, in North Carolina, constituted a valuable consideration for any promise made to pay for the same.

The Emancipation Proclamation of President Lincoln, and the Act of Congress of July 1862, by their terms operated only upon particular slaves, and did not affect the institution of slavery; So also, the order of General Schofield, made after the Surrender.

The buying and selling of slaves in the ordinary course of business, in North Carolina, in 1864, was then against neither good morals, nor public policy; and no retroactive effect to that end can be attributed to the subsequent emancipation of slaves, and abolition of the institution of slavery by law.

( Buie v. Parker, 63 N.C. 131, Hooker v. Phillips, Phil. Eq. 193, Woodfin v. Sluder, Phil. 200, cited and approved.)

DEBT, tried before Pool, J., at Spring Term 1869 of the Superior Court of HERTFORD.

The plaintiff declared upon a plain bond, “for value received” promising to pay to him one thousand dollars, with interest from date, and dated the 26th day of September, A. D. 1864.

The defendants pleaded General issue, Payment and Set off.

The bond had been given in part payment of the price of a slave, purchased by Watson at an Administrator's sale by the plaintiff, in Hertford county on the day of the date. The terms of sale were, that purchasers might pay in Confederate currency, to the amount of $1,000; and, for any sums in excess payment would be required in notes of the banks of this State, and for such excess bonds must be given with good security, bearing interest from the day of sale. At the sale Watson purchased a negro boy under 21 years of age, for the sum of $2,000, and having paid one-half thereof, gave bond for the other half, according to the terms of sale. The value of bank notes, in gold, was shown to be 25 per cent., or, as one to four.

Upon the above case, the Court instructed the jury that the plaintiff was entitled to recover the value of the bond in gold, and accordingly there was a verdict and judgment for $250 in gold, with damages for detention, &c.

The defendants excepted to the ruling, and having moved for a new trial, &c., appealed.

Yeates and Barnes, for the appellants .

1. The consideration of this bond may be inquired into. Acts of Assembly of 1866, chs. 38 and 39.

2. The bond was given after the Emancipation Proclamation of President Lincoln, a war measure vital to the Government. See also Acts of Congress of 1862, ch's. 40, 111, 195, 201, Milligan's case, 4 Wall. 2, and C. J. Chase's dissenting opinion therein.

3. The particular result of the war instead of discontinuing this war measure, actually ratified and maintained it ab initio.

4. The negro here was under age, and if the construction be that the Proclamation was limited to such as availed themselves of it and escaped into the lines, the Courts will give infants all the benefits of a presumption that they would have escaped if of full age. Laches will not be imputed to them.

5. As matter of public history the military forces of the United States frequently invaded and at one time overran the district where this boy resided previously to the sale.

6. The Courts of North Carolina being wrongful when Harrell was appointed administrator, he was not such at the sale, and so could not sell, or take a valid bond, and the Convention of 1865 had not the power to create a contract by the defendants without their consent.

7. A debt created in purchasing a slave, is an incident to slavery, and disappears with its principal.

8. Under the Act of the Legislature the recovery should have been limited in amount by the value of the thing bought, which here is to be measured by the time of actual service. At all events the verdict and judgment for gold, are incorrect: and should have been for United States currency.

They cited Hayley v. Hayley, Phil. Eq. 180, Ex parte Hughes, Phil. 57, Buie v. Parker, 63 N.C. 131, Blossom v. Van Amringe, Phil. Eq. 133, Wiley v. Worth, Phil. 171.

9. When were the slaves in North Carolina emancipated? Would the sale of one after the surrender and before the passage of the ordinance of emancipation, have been valid? If not, why?

Smith Contra.

The proclamation of the President of the United States emancipating the slaves in this State on the first day of January 1863, was an exercise of force called for by the exigencies of war, and finding its justification in the principles of law applicable to a state of war. It is valid so far and no farther than it can be made effectual by force. The slave in question was not in fact set free by force, and therefore never legally became free until the adoption of the ordinance of emancipation by this State. Dana's Wheaton, Sec. 347, Note 8, latter part.

This view is sustained by,

1. The requirement by the Executive of the United States of an ordinance of emancipation.

2. The condition inserted in the amnesty proclamation, and the special pardons issued.

This Court has virtually so held in reference to the hire of a slave in 1865. Woodfin v. Sluder, 1 Phil. 200. But, if without consideration, the bond is valid, and no defence is available in this action.

PEARSON, C. J.

We listened with pleasure to the argument of Mr. Yeates. He was candid, and seems to have investigated the subject with much diligence; but we cannot concur in his conclusions.

He says, the bond is void for want of a consideration. The reply is: 1st. A bond needs no consideration. The solemn act of sealing and delivering is a deed, a thing done, which, by the rule of the common law, has full force and effect, without any consideration. Nudum pactum applies only to simple contracts--deeds need no consideration, except such as take effect under the doctrine of uses, or such as are made void by the statutes of Elizabeth as against creditors and purchasers for valuable consideration, but are valid, as at common law, between the parties.

This is a misapprehension of the law into which many of the profession seem to have fallen by reason of inaccuracy in Blackstone's Commentaries, who, we take occasion to say, is a popular, and not an accurate text writer, like Coke or Fearne. For instance, Blackstone adopts the definition given by Coke of a deed--“an instrument of writing, on parchment or paper, sealed and delivered”-- and yet he afterwards goes on to say, “a deed must be supported by a sufficient consideration.” His remark is evidently to be understood, as having reference to deeds taking effect under the doctrine of uses, and to the statutes of Elizabeth. For, beyond all question, a deed is binding between the parties without any consideration. 2nd. There was, in our case, a valuable consideration. The slave bargained for, was delivered to the defendant at the date of sale in September 1864, and he had his services until 1865; and upon the supposition that the thing sold, to-wit: the negro, was in fact a freeman, and not the subject of sale from and after the proclamation of Jan. 1, 1863, the defendant had notice of this fact, as well as the plaintiff, and according to the rule of law and of equity, and of justice in its ordinary sense, “he who is to have the gain should bear the loss,”...