¶1I think the obligation between the indorsee and the maker of the note sued on, cannot be enforced without enforcing the original contract.
¶2If the maker is forced by the court to discharge his obligation to the indorsee he is necessarily forced to discharge the contract he has made with the payee, which was for slaves.
¶3This we cannot do without violating article 128 of the Constitution;
¶4For these reasons and those given by Mr. Justice Taliaferro, I concur in the decree of the court.
¶5dissenting:
¶6The record in this case clearly shows that the note in suit was indorsed by its payee to one Burges, who in turn indorsed it in blank, and transferred it for value and before maturity to the plaintiff, who took it in good faith. The note itself bears upon its face no indicia of its origin. It is not even paraphed.
¶7With such facts apparent and unquestioned, I find it impossible to *571concur in the opinion which has been delivered on behalf of a majority of the court.
¶8It is hardly necessary to say that I do not propose to take ground in favor of enforcing “ contracts for the sale of persons.”
¶9The jurisprudence of the State in this regard is settled; and the prohibition of the Constitution is plain and must be respected and obeyed. But it is difficult to perceive how the giving of judgment in this case, in favor of the plaintiff, can be considered in law the enforcing of a “ contract for the sale of persons.”
¶10It is true that the consideration or cause of the contract between the makers and payee was the sale of slaves, and upon the authority of Wainwright v. Bridges, 19 Ann. 234, and many succeeding cases, this court would decline to enforce the note as between the original parties, and would point to the one hundred and twenty-eighth article of the constitution as a recognition and confirmation of the principles enunciated in those decisions. But it by no means follows that the contract between the makers of the note in suit and the plaintiff is a contract for the sale of persons, or that the sale of persons had any legal connection whatever with it.
¶11On the contrary, I apprehend that the contract between the makers, of the note in suit and the plaintiff was that of the accepter of a bill drawn by Burges, the second indorser, upon the defendants in favor of the plaintiff, in payment for half a drug store. I believe all writers agree in this view, that the indorser of a note may be looked upon as a drawer of a new bill, the indorsee as the payee thereof and the original maker of the note as the accepter, and this is essentially a new contract. Hill v. Martin, 12 M. 183, and cases there cited; 7 L. 498 ; 11 R. 497 ; 9 M. 194.
¶12If, therefore, to give judgment for the plaintiff in this case would be to enforce any contract of sale, it would be a contract for the sale of half a drug store, and not for the sale of persons,
¶13i Suppose A, desiring the death of his neighbor, makes his note to the order of B, a hired assassin, and B transfers the note to C, who indorses it in blank and before maturity pays it to D for a pew in church. The innocent indorsee for value brings suit against A. It is clear that contracts to procure and commit murder are “null and void and shall not be enforced by the courts of this State and this provision is as imperative as if it formed an article in our Constitution. Their nullity is absolute, being founded on considerations of public order and good morals. Their execution is perpetually resisted by the law. But would A be listened to if he should say that D must not recover lest an agreement to do murder should thus be enforced. I think not. For it would not be the contract to procure assassination, or the contract to do murder, that would in such case be enforced; but that other obligation, that the maker, as accepter of a bill drawn by C, in *572favor of P,. inpayment, for a,pew in. church, would pay P the amount of the bill.
¶14It is true that tlie law may declare* a note void in the hands of even tlie innocent indorsee, though the spirit of modern civilization is opposed to. such enactments, and if: the one hundred and twenty-eighth. article of the. Constitution declared that-notes like the one in suit, should be void in the hands of a. party-like-the. plaintiff I could not. urge the- views above expressed. But the Constitution does not so declare. It declares the nullity of contracts for the sale of persons, It. embeds in fundamental law the doctrine of Wainwright v. Bridges, a suit between the’original parties to. a slave note. But .I must confess my inability to see how, either directly or by implication, it forbids the enforcement of a bill drawn in favor of the plaintiff in;this case, in consideration of the sale of half a drug store, and in the eye of the law accepted by defendants.
¶15In the case of the Canal Bank v. Templeton, 20 Ann. 141, decided about one year after the- case, of Wainwright, the defendant was sued upon his promissory notes given for the price of slaves. The defense was set up, as in this case and the consideration proved. But the court in a unanimous opinion said:
¶16“We are satisfied from the evidence in the record, which is not rebutted, that the plaintiff is the bona fide holder of the notes sued on, indorsed and transferred to it previous to their maturity for a good consideration, without notice, and that no. want of consideration, even by the emancipation of slaves or otherwise, between the original parties, can be urged against the plaintiff.”
¶17And.the judgment given against the defendant.was affirmed.
¶18This decision was rendered in February, 1868, prior to the adoption of tb,e present Constitution; but shall it-.be said that the judges who rendered it thereby enforced' a “contract for. the sale.of persons,” and that they would have gone- on enforcing, such contracts if they had not-heen checked by article 128 of the hew Constitution? I trust not.
¶19I must still believe, that the constitutional, provision does not apply to the case at. bar.
¶20The s.ame. considerations, seem to furnish, a. reply to the statement that the-plaintiff cannot recover beoan.se the note as a contract was smitten through with nullity or destroyed by the destruction of slavery. Admit this nullification or destruction, is the note any less valid than one which, is mill and void ab initio ?■ The plaintiff- is the holder of a note which, as a. contract, between the maker, and payee is said to have been destroyed,, by .war, by proclamation,, and by constitutional amend-, ment. Another-man is the holder of a note, which, as in the illustration I have- used, was given as. th.e .price, of blood, and was, between, maker, and payee, originally and always,- a. mere nothing. .Yet-tho'latter we. are told shall recover and not the former. I- am unable, to.*573perceive a reason for. this discrimination. Grant that the contract between the maker and payee of the note in suit was without consideration, or grant that itg consideration was immoral and unjust; grant that this consideration and this contract have been swept, away, still that other agreement by the makers.to.pay the bill drawn upon them by the indorser-, Burges, in favor of the plaintiff, remains untouched. Its. consideration, the sain of half a drug store, was lawful and it ought to be enforced.
¶21If this theory of the case be deemed fanciful, it may be laid aside without injury to the plaintiff ’s rights. All' will agree that as dona fide • holder for value, and before maturity of a promissory note, he must reco.ver unless the note has by law .been declared to be void eyen in such hands as his. Have-we any statutory or- constitutional provision making such a declaration?- I find none. It. is not claimed that there. is such a statute. Does article 128- of the Constitution make such declaration? By np means.. It declares-, contracts for the sale of persons tq be null- and Void. The note:, in suit is not a contract for the sale of persons, or for the sale of anything. It- is only avoided by implication, as an evidence of a debt incurred by a purchase of persons. But this implication ought not to involve any party but the payee, who was a party to the sale. If the article declared that promissory notes given for the price of persons, should be null and void even in the hands of third and innocent parties, the case would be different, but it makes no spell provision.
¶22But if. the intent and effect of the article is to avoid the note in suit in the hands, of plaintiff, the article itself is null and void, being in conflict with the Constitution of the United States which declares that no State shall pas.s.a law impairing. the; obligation of contracts. I prefer to-adopt a construction which will not. bring- the makers of our Constitution in direct conflict with the supreme law of the land.
¶23Dor these reasons I am of opinion that the plaintiff should have judgment.