dissent">Chief Justice Ludeling

dissenting:

I cannot concur in the views expressed by the court in this case.

The prohibition in the constitution is : “All contracts for the sale of persons are null and void, and shall not be enforced by the courts of this State.”

In Groves v. Clark & Carnal (21 An. 567), this court, commenting on the article, said: “ Article 128 of the constitution is couched in clear *765and unambiguous language. Its terms are unequivocal, its expression imperative.” * * * * * * . *

“ In the face of this paramount authority, so plainly enunciated, can the courts of this State enforce contracts which it reprobates, whether the holder of the obligation is in good or bad faith, or the holder before or after maturity ? The positive prohibition of article 128 mates no exception in favor of one class of holders over another. Shall the courts make such an exception ?”

“ None dispute that obligations of the sort in question are, by the terms of the article 128 of the constitution, utterly and absolutely null and void in the hands of the original parties. If'thus stricken with nullity, what is to revive and give them validity ? We hold the purpose of article 128 of the constitution of the State to be clear and without doubt, aud that that purpose is, that the contracts, which it reprobates, shall be mill, in whose hands soever they are found,'and that the courts are forbidden to enforce them, whether held by owners bona ■fide or mala fide, and without reference to the time they acquired them.”

If we apply the reasoning of the court to this case, to what conclusion are we driven! “The positive prohibition of article 128 makes no exception in favor of one class of holders over another.” Does it make any exception in favor of a contract which is only in part for the sale of persons'? “All contracts for the sale of persons shall be null and void, and shall not be enforced by the courts of this State.” Does the obligation sued on arise from a contract for the sale of persons ? This is not denied. There was but one contract, and-slaves as well as lands and personal property were embraced^in it. In the same case we said : “By the decision in the case of Wainwright v. Bridges, followed by many decisions affirming it, it was fully settled that contracts for the payment of the price of slaves were null, and that the courts could not enforce them. These decisions were the settled law of. the State before the adoption of the constitution of 1868. ' There was no call for the insertion of the article 128 of the constitution if the framers of the organic law did not intend to render null and abortive, in the hands of any holder whatever, all obligations of the kind treated of A What are the kinds of contracts treated of V’ “ All contracts for the sale of persons.” The constitution does not say that only so much of the contract as relates to the juice of the slaves shall be null, for that much was already deci o l to be null by the courts, but it declares that all such contracts shall be entirely null.

Under a strict construction of article 128 of the constitution no part of the contract can be enforced by the courts of the State.

If we adhere to the doctrine enunciated in the case of Wamwright v. Bridges, so long followed by us, the result would be the same, even if we were permitted to disregard the prohibition in the constitution— because h contract which is tainted, in part, with an immoral consideration, is void in toto, under the English and American, as well as under the civil law and' the laws of this State. Cole v. Cole, 7 N. S. *766423; 19 An. 33, 339 ; 2 Pothier (Evans) pp. 17 and 18 ; Story Promissory notes, page 190 ; Smitli Mer. Law, 344; Parson’s Contracts, vol. 1, page 445, vol. 2, page 073; 11 Wheaton, 258; 2 Peters, 527; 14 How. 38; 16 I-Iow. 314; 17 How. 232; Chitty on Contracts, pp. 692, 693.

Reference has been made to a case in 6 Mass. Rep. p. 380, in support of a contrary view, I humbly conceive that the authority supports my position, if it can be said to decide anything on the question. Parsons, C. J., said: “ This action is assumpsit on a promissory note for the delivery of slaves, and the payment of bars, which are an African currency, and also on an insimul eomputassent.'” * * a *

“The second objection that no action, upon either of the promises alleged, can be maintained in this State, is principally relied on by the defendant.” * * “ The slave trade, he has argued, is, or has been prohibited by a statute of the Commonwealth, in the preamble to which it has been declared to be an unrighteous commerce, and he attempted to show that in itself it was immoral. This objection deserves much consideration.”

The court then states, that, by the common law, upon principles of national comity, a contract made in a foreign place, or to be executed there, if valid by the laws of that place, may be a legitimate ground of action in the courts of Massachusetts, although such contract may not be valid by our laws. There are two exceptions to this rule: when the commonwealth or its citizens may be injured by giving effect to the contract, or when the giving effect to the contract would exhibit to the citizens of the State an example pernicious or detestable; and, the court says, such contracts cannot be enforced because the consideration is immoral, and a judgment in support of it would be pernicious from its example. “ And, perhaps, all cases may be considered as within this second exception, which are founded on moral turpitude, in respect either of consideration or the stipulation.” “ Laying the count on the note out of the case, we shall consider the question of moral turpitude, so far as it respects the count on the insimul computas-sent; and we are satisfied that the objection does not apply to the contract averred on in this count.”

What was the contract averred on in that count ? The defendant had agreed to deliver to the plaintiff a certain number of slaves and bars for a cargo of merchandise. The merchandise was delivered, and the defendant delivered a part of the slaves, “ and having become the creditor of the plaintiff for supplies furnished to his use, states his account, in which, after deducting the slaves delivered and the supplies furnished, he aclcnoxcledges a balance in cash, and the plaintiff having assented to the account, demands the balance in this action.” The suit was on a new contract in which money was acknowledged to be duo for merchandise received, not simes. The court said very properly, *767“we see no legal objection to bis recovery. The consideration of the implied promise, arising from this settlement is the sale of the cargo, which involves no moral turpitude — neither is the performance of the promise, by paying the balance in cash, immoral. And, although, on the same day, the defendant, in consideration of this balance due in cash, promises by his note to discharge it principally in slaves, and a small remainder in cash, yet this promise is no bar to an action, by the plaintiff on the account, even if the promise by the note is here considered as legal, and a fortiori if it be considered as void for its immorality.” 6 Mass. R. 380.

If, departing from the plain terms of article 128 of the constitution, we construe it to mean that contracts for the sale of persons shall not be enforced, except to the extent oí the good considerationr and wo determine further, that the good can bo separated from the bad consideration of the contract, still the result will be the same in this case, for we could enforce the payment of the price of the land and personal property only, and the payments already made largely exceed their price.

The vendor sold lands and slaves together for $18,000. It is admitted that the price of the slaves was $9000. Fifteen thousand dollars have been paid, and we are asked to enforce the balance. Would we not enforce the payment of the price of slaves, if by our judgment the vendor were enabled to collect any more money on his contract ? Nine thousand dollars was the price of the lands. Every dollar which he has received, or which he may receive, through the aid of this court, over nine thousand dollars,will be on account of the price of the slaves. And, yet the judgment of this court will enforce one-half of the balance claimed, thus enabling him to collect $16,500.

The conclusion of my learned brothers seems to be predicated upon the supposition that there were several debts, evidenced by four notes; that the consideration of each note was slaves and land, and that by the payment of three of these notes (which were mere installments of one debt), the parties themselves imputed or applied the sums of money paid, equally to the slave and land consideration of each note.

This, in my judgment, is an error. There was but one contract, from which arose one debt, to wit: the obligation to pay the price of the property bought, and which was secured by one mortgage.

The fact that the debt was payable in installments did not destroy the unity of the debt. C. P. article 686.

Suppose A sell to B a tract of land for $10,000, payable in four equal installments, evidenced by four notes. B pays two of the notes, and ihen he is evicted of one-half of the lands bought, worth $5000. A sues B on the unpaid notes, and B pleads the failure of consideration to the extent of the value of the land taken from him. Would any court hold that one-half of the unpaid notes could be collected because the consideration of those notes had only failed to the extent of one-half ?

*768In case there is only a partial want of consideration, the obligation is affected with nullity pro tanto. “ The same rule applies to cases wiiere there was originally no want of consideration, but there has been a subsequent failure thereof, either in whole or in part.” Story’s Prom. Notes, No. 187.

“ There is no difference between a want and a failure of consideration.” 12 M. 403.

If there was failure of consideration, there was no debt, and when there is no debt there can be no question of imputation of payment, or payment. 4 Marcadé No. 667 ; C. C. 2129.

There being but one debt, and that only to the extent of the price of the land, $9000, every dollar paid went to the extinguishment of that debt.

“It shall always bo intended, that if money is paid, it shall bo applied to the discharge of that which the debtor was legally owing, and not upon that which (so to.speak) he was owing illegally.” 9 Iowa 384; Smith, Twogood & Co. v. Coopers & Clark. “When the contract under whicli the wrong was perpetrated, and which has been in part performed, is brought before the courts by the immediate parties to it for further enforcement, reason and good morals, as well as law, dictate that, as far as possible, the wrong should be made right.” Ibid.

But if the courts of this State are powerless to recognize the existence of a debt for slaves at all, since the adoption of the constitution of 1868, and the iourteenth amendment to the constitution of the United States, and the question of imputation could have arisen under the contract, how would the payments have been imputed ? •

The imputations must bo made expressly and at the time of the payment, by one or the other of the parties, or the law will make it. C. C. 2160, 2102.

The record does not show that either of the parties expressly made any imputation — hence the law made it. How? By applying the money to the debt which the debtor had most interest in paying. After the decision of the case of Wainwright v. Bridges, and the numerous cases since decided, affirming the principles therein enunciated, the least that can be said of the titles to slaves is that they were precarious; and if precarious, the debtor had most interest in discharging the price of the lands.

In Hynes v. Cobb, 2 An. 364, this court said the amount promised to be paid in the note was composed of the sum loaned with twenty per cent, added thereto, on which interest was stipulated at the rate of ten per cent, after maturity. “An indorsement was made on the note of a payment of $240. Wo imputation is expressed in the receipt, nor otherwise shown. In an ordinary case the law would make the imputation to the interest. But the article of the code, which directs that impu*769tation ninst be construed in connection with other rules in pari materia. One pi these is, where the receipt bears no imputation the payment must be imputed to the debt, which the debtor had at the time most interest in discharging, of those that are equally due.” 2 An. 262; 5 An. 620.

Bat I' consider that we have decided the precise principle involved in this case.

In Brou v. Becnel, 20 An. 254, the suit was tor the 'balance of notes given for lands and slaves. The answer alleged that the consideration thereof had failed by reason of the emancipation o. the slaves included in the sale, and that the full value of the land had been long since paid. The issue presented by the pleadings in that case was precisely the one now presented for decision. And this court said: “We conclude that Becknel can oppose the plea of failure of consideration as to both the personal arid real obligation; but the evidence does not show the relative value of the slaves and the other property sold; and we think that justice requires the remanding ot the cause to ascertain this fact, and the amount, if any, for which she is liable for property other than slave property.”

In Haden v. Phillips &. Foster, 21 An. 517, wo held that payments made on an obligation given for land and slaves must be credited on the price of the land. Why? Because “ the law will not presume that the payments made by hinfwere for their price, but must be held to have been made o-n that which was, and is property. And, besides, to make him pay the balance claimed, would virtually be enforcing a contract for the sale of persons, by mailing him pay more than the full value of the land and movables bought by him ? See, also, Dranguet v. Rost, 21 An. 538, and Armstrong v. Lecompte 527.

Again — Hortense Patin died in 1861, and on the twenty-eighth of December of that year, a sale of the effects of her succession was made. At the sale certain slaves were purchased by the heirs. In 1867 |an account was filed. The heirs opposed the account, alleging ¡that they were illegally charged with the amount of their purchases of slaves. There was judgment rejecting the opposition so fal-lís the inheritance of each was concerned, that amount being deemed lo be settled by confusion to. the extent of their purchases.

On appeal this court said,

| “We are constrained to think that the judgment was erroneous; Sender tire jurispiudenee of’the State, as well settled, the obligations contracted by the heirs, by their purchase of December, 1861, beingnuU and Boid, cannot be an elemént in either confusion or compensation. To recog-them as such would be practically to enforce them.” 19 An. 234; gonstitution, Art. 128; C. C. 2205, 2214. See 21 An. 661.

■ I feel authorized therefore to assume that the question presented jere has been decided; and I think the rule stare decisis should cod-*770trol us in cases like this, even if we doubted the correctness of the previous rulings; hut I am not convinced that there is error in these decisions; on the contrary my judgment approves the opinions rendered in Brou v. Becnel, Groves v. Clark & Carnal, Dranguet v. Rost, Armstrong v. Lecompte, Haden v. Phillips & Foster, and the succession of Hortense Patin. The plaintiff’s demand should be rejected.

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