David Randon, Plaintiff in error, v. Thomas Toby, 11 How. 493

Mr. Justice GRIER delivered the opinion of the coúrt. Had this case been conducted on the principles of pleading and practice, known and established by the common law, a short declaration in assumpsit, a plea of non-assumpsit, and non-assumpsit infra sex annos, would have been sufficient to prepare the case for trial on its true merits.

But, unfortunately, the District Court has adopted the system of pleading and code of practice of the State courts; and the record before us exhibits' a most astonishing congeries of petitions and answers, amendments, demurrers, and exceptions,— a wrangle in writing extending over more than twenty pages, and continued nearly two years, — in which the true merits of the case are overwhelmed and concealed under a mass of worthless pleadings and exceptions, presenting some fifty points, the most of which are wholly irrelevant, and serve only to perplex the court, and impeded the due administration, of justice.

The merits of the e^se, when extricated from the chaos of demurrers and exceptions in which it is enveloped, depend on. two or three questions, simple and easily decided. We do not deem it necessary, therefore, to inquire whether the court below may have erred in their decision of numerous points, submitted to them, which have no bearing on the merits of the case, and are of no importance to the just decision of it.

It will be unnfeceasary to decide whether the judge erred in his construction of the laws of Africa HI and other questions of a similar character, provided it shall appear that, on the admitted facts of the case, he should have instructed the jury that the defendant had established no just defence to the plaintiff’s action. On the trial, the plaintiff gave in evidence two notes executed by defendant,, and purporting to be for value received, payable to the plaintiff or his order. They were dated in June, 1841, and payable in one and two years.

Three distinct defences were set up by defendant, which had some apparent foundation of fact to support them ; a fourth, that the defendant had paid the notes to McKinney, the agent of the plaintiff, being proved to be false in fact, need not. be further noticed. 1st. The first was the' statute of limitations, of four years, of the State of Texas. 2dly. That the plaintiff had made an assignment of all his property to his creditors, and therefore had no right to recover. And 3dly.

That the notes were given for the purchase of negroes imported from Africa to Cuba and thence to Texas in 18135, and consequently that the defendant had received no consideration, because the negroes, being imported contrary to law, were entitled to their freedom. We shall notice these points of defence in their order. 1st. The plea of the statute of limitations was prima facie good, as to one of the notes, as suit had not been instituted till more than four years after it became due. But the plaintiff rebutted this plea by the exhibition of the following agreement, signed by Randon, the defendant.

" “ This instrument of March 14th, 1844, witnesseth : That whereas McKinney & Williams, of Galveston, and Thomas F. McKinney, agent of Thomas Toby, of New Orleans, hold several notes drawn by me, and past due; and Thomas F. McKinney, some two years since, did agree for McKinney & William’s, and the said Thomas Toby, to grant me further indulgence on said notes, over and above the time of their maturity ; and I did then say, promise, and agree, that I would deliver to him, the said Thomas F.

McKinney, each and every year, .all the one half of every crop of cotton in payment, first of the amount due the said McKinney & Williams, if there bé any thing due them over and above the amount of purchase of negroes bought of them, and then in extinguishment of said amount of purchase of negroes, of which my note to said Toby is a part of consideration ; and I further agree and oblige myself, that any surplus I may. have from the proceeds of the other half of my crops, over and above my wmnts,' exclusive of any speculations ór purchase of negroes, shall also be-turned over as above; and I further bind and obligate myself, my heirs, assigns, and administrators, that no advantage shall be taken, or any plea of statute of limitations be made, to avoid the payment of said notes, but they shall be and remain in as full force and effect'as though they were renewed. ^ ,, ^ ,, “ D.

Randon.” This agreement, being,founded on a good consideration and accepted by the plaintiff, became incorporated in the notes, and formed a part of the contract, by mutual consent. It extended the time of payment, and the statute did not begin to run till the extended time had expired. It operated also by way of estoppel in pais to a defence under the statute of limitations. Otherwise the defendañt would gain an advantage by his own fraud, or put the plaintiff to an action on the agreement. On one or the other of these principles, the doctrine of estoppel has its foundation.

The plea of the statute is a breach of the agreement, and; to avoid circuity of action, it may be set up in avoidance of the plea. Moreover, the stipulation in this agreement forms a new: promise on good consideration to pay the money, which has always been held as a sufficient replication to the plea of the statute of-limitations. It has been a 'subject of complaint in this case, also, that the court submitted the construction of this instrument of writing to the jury. But the defendant cannot allege this as error.

First, because it was done at his own request; and secondly, because the court should have instructed the jury that the construction contended for by the defendant was wholly without foundation. The use of the word “ note,” in the singular number, instead of “ notes,” is so palpable a slip of the pen, that its use, although furnishing an opportunity for cavil, could not be said to create an ambiguity on the tace of the instrument, or leave any doubt as to its true intent in the mind of any one who will read the whole of it together, and has no intent or desire to pervert it.

It refers to “ several notes,” it acknowledges that “further indulgence was granted on said notes,” and “obligates” the defendant not to plead the statute of limitations’ to “ said notes.” Both the notes to Toby were admitted to be part of the consideration paid for the purchase of the negroes referred to in the agreement; consequently, the use of the word “ noté ” was a- mere error in grammar, or slip of the pen. • By the settlement with McKinney and the firm, and payment of the notes held by them against the defendant, this paper became useless and inoperative as to them ; but as there • is. no pretence that the notes of Toby were paid, the surrender of the agreement to Randon would have been a fraud oh Toby, and the promise of McKinney to do so cannot invalidate its legal effect. 2d.

The record given in evidence, to show the insolvency of Toby and his assignment under the proceedings in Louisi-. ana, after the purchase of the negroes and before the notes now in suit were given, constituted no legal defence to the action.

The taking of the note' payable to Toby was no fraud on the defendant; Toby was himself one of the syndics or assignees to settle his insolvent estate; he had a right to secure the debt and give an acquittance for it, and whether he took the note payable to himself individually, or as syndic, and whether he has accounted for it to his creditors, or may be bound to do it hereafter .when the money is received, are questions with which the defendant has no concern whatever. 3d.

The plea that the notes were given for African negroes imported into Texas after the year 1833 is equally unavailable, as a matter of defence, with those already mentioned. This fact seems to have been alleged in the pleadings, as showing a want of consideration. On the argument here, it was endeavored'to be supported on the ground that the notes were void, because the introduction of African negroes, both'into Cuba and Texas, was contrary to law. . But in neither point of view will these facts constitute a defence in the present case.

If these notes had been given on a contract to do a thing forbidden by law, undoubtedly, they would be void ; and the court would give no remedy to the offending party, though both were in pari delicto. But Toby.or' his agent, McKinney, had no connection with the person who introduced the negroes contrary to law. Neither of the parties in this case had any thing to do with the original contract, nor was their contract made in defiance of law.

The buying and selling of negroes, in a State where slavery is tolerated, and where color is prima facie evidence that such is the status of the person, cannot be said to be an illegal contract, and void on that account. The crime committed by those who introduced the negroes into the country does not attach to all those who may afterwards purchase them. It is true that the negroes may possibly, by the laws of Texas, be entitled to their freedom on that account. If the defendant had shown that the negroes had sued out their freedom in the courts of Texas, it would .have been a good defence.

In every sale of personal property there is an implied warranty of title, for a breach of which a vendee may ..sue his vendor and recover the price jiaid; and on a suit for such price may plead want of consideration or eviction by a better title. But that is neither alleged nor proved in the present case. .. On the contrary, the defendant held and enjoyed the negroes, and sold them and received their value; and the negroes are held as slaves to this day, if alive, for any thing that appears on the record.

As respects the defendant, therefore, he has received the full consideration ■for his notes, the title to his property has never been questioned, nor has he been evicted from the possession, or threatened with eviction. Consequently he has no right to set up a defence under the implied warranty of title, or for want of consideration.

If the defendant should be sued for his tailor’s bill, and come into court with the clothes made for him on his back, and plead that he was not bound to pay for them, because the importer had smuggled the cloth, he would present a case of equal merits, and parallel with the present; but would not be likely to have the verdict of the jury or judgment of the court in his favor.

The defendant has bought these negroes in the condition of slaves de facto, with the prima, facie evidence of their status imprinted on their forehead; he has held them as slaves, he has sold them as such, and he has no right to call upon the court in a collateral action, to which neither the slaves nor their present owners are parties, to pronounce on the question of their right to freedom, especially in support of a defence which has so little to recommend it.

Having thus examined the merits of .this case, and shown that the court ought-to have instructed the jury to find for the plaintiff on the admitted facts of it, we think it wholly unnecessary to examine further the multitude of demurrers or exceptions spread over the record, as no decision of the court below upon them could have wronged the defendant or affected the merits of the case. The judgment' of the court below is therefore affirmed, with costs. Order.

This cause came on to be heard on the transcript of the record from the District Court .of the United States for the District of Texas, and was arguqd by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby, affirmed, with costs and damages at the rate of six per centum per annum. Supplementary Order. ' ■ Nir.

Bibb, of counsel for the defendant in error, having stated to the court that it appeared on the face of the record of this case, that Thomas Toby was dead, that the citation was served on Jonas Butler, his administrator, and that the plaintiff in error had accepted such service of the citation, moved the court that the titling .of the case in this court be, David Randon, Plaintiff in error, v. Jonas Butler, Administrator of Thomas Toby, deceased, and that the judgment of this court be entered in behalf of said Jonas Butler.

Whereupon it is now here ordered by the court, that the said motion be, and the same is hereby, granted, and that the clerk make the entries accordingly.