¶1delivered the opinion of the Court.-—The note on which this suit is brought, was undoubtedly given by the defendant, in consideration of the promise of Getman, that he would “ immediately” manumit the negroes; and although the note is made payable to Petry, yet it is clear that the original contract was made by Getman, the present assignee, and holder of the note; and there is no evidence that the note was ever delivered to Petry. The fair presumption from the evidence is, that it has remained in the hands of Getman, ever since it was given.
¶2The points made are, 1st. That the want of considération is no defence to the note in the hands of the assignee : and, 2d. That there has been no failure of consideration, because the negroes have, in fact, been manumitted.
¶3I am decidedly against the plaintiff on both points.
¶4An assignee of a promissory note in the usual course of business, who receives it without notice of a defect of consideration, is protected against such a defence. But it would he an outrageous perversion of the rule, to consider Getman as standing in that situation.
¶5As to the second point: The promise on the part of Get-man was to manumit the slaves immediately on receiving the notes, for twoehundred dollars : and the case shows, that although the notes were delivered to him, in strict compliance with his proposal, yet he in fact refused to manumit the slaves, until two years and five months afterwards; and in the mean time, treated them as his slaves.
¶6I think it is clear, that until the certificate of manumission passed out of the hands of the master, by an actual delivery, the negroes continued to be his slaves. (Case of Nan Mickle, 14 Johns. Rep. 324.)
¶7The note was to take effect upon a condition which has *55not been performed. A delay of ..upwards of two years, was a gross and material violation of the contract. In no case can time be deemed more essential. The note was made payable five months from its date: yet it remained a matter of entire uncertainty, for two years afterwards, whether the emancipation would ever be made. This delay operated as a fraud upon the defendant, because it deprived him of all means of procuring indemnity for this note, which he generously lent to thé negroes, as the price of their freedom.
¶8Even admitting that the manumission was legally consummated, without any delivery of the certificate; and that the negroes might have asserted their freedom, as soon as the paper was signed; yet I think it sufficient to bar this suit, that in fact, Getman claimed and exercised his power over them as master, and actually held them as slaves, in violation of his agreement, until he afterwards chose to deliver the certificate. Their freedom was the consideration for this note; of that freedom he wrongfully deprived them; and it would be an insult to the law, and to common sense, to say, that his restraint of their liberty was illegal, and therefore, it ought not to be objected to him, when he claims the price of that liberty.
¶9The defendant is, therefore, entitled to judgment.