Nichols v. Bell

• Decision Date: 31 December 1853
• Citation: 46 N.C. 32,1 Jones 32
• Court: North Carolina Supreme Court
• Parties: ALFRED NICHOLS v. WILLIAM F. BELL.

1 Jones (NC) 32

46 N.C. 32

ALFRED NICHOLS

v.WILLIAM F. BELL.

Supreme Court of North Carolina.

December Term, 1853.

Parol evidence may be resorted to, to establish the consideration of a guaranty.

The presumption of slavery does not arise from a complexion, a shade darker than that of a mulatto.

THIS was an action of ASSUMPSIT upon a guaranty, tried before BAILEY, Judge at Fall Term, 1853, of the Superior Court, for Carteret County.

The defendant excepted upon two grounds. First, because the Court permitted the plaintiff to prove the consideration of the guaranty, by parol evidence.

The second ground is sufficiently stated in the opinion of the Court.

A verdict was rendered for the plaintiff. Rule by defendant for a venire de novo. Rule discharged, and appeal to the Supreme Court.

J. W. Bryan, for the plaintiff .

No Counsel for the defendant.

NASH, C. J.

This action is upon a guaranty, and two questions arose upon the trial below. We will consider them in the order in which the case presents them. The first is, upon the introduction of parol evidence to prove the consideration, upon which the guaranty arose. It was insisted on behalf of the defendant, that the case upon which the action is founded, was within the act 1826, and that the consideration ought to appear upon the face of the instrument. This objection is answered by the cases of MILLER v. IRWIN, 1st Dev. and Bat. 103. COOPER v. CHAMBERS, 4 Dev. 281. ADCOCK v. FLEMING, 2 Dev. & Bat. 223. ASHFORD v. ROBINSON, 8 Ired. 116. 3 Kent's Com. 122. These authorities show that a guaranty is not within the Statute. They also show that where the contract is in parol, evidence may be resorted to, to establish the consideration. The second objection is, that the Court erred in refusing the instructions required. The plaintiff is a man of color; the case states, “that he was neither black nor white, but that he was of a brown color, between that of an African and a mulatto, and that neither of his parents could have been a white person.” The plaintiff then proved, that, “in Onslow, where the contract was made, he was reputed to be a free person, was called and known as free Alfred Nichols.” The defendant requested the Court to instruct the jury, that, in the case of persons of a shade of color darker than that of a mulatto, the law presumed they were slaves. The Court could not give such instructions. We know of no law or decision, which authorises such presumption. In 1802, in the case GOBU v. GOBU, Taylor Rep. 16, the Court for the first time recognised, as a presumption of law, that a man's right to freedom depended upon his color. It was decided, that, if he was black, he was by law presumed to be a slave. This case was followed by that of SCOTT v. WILLIAMS, 1 Dev. 376, and it...