majority">PECK, C. J.

1. The exclusion of the note as evidence rendered a recovery by the plaintiff impossible; he therefore very properly suffered a non-suit under section 2759 of the Revised Code.

2. The court below no doubt excluded said note under the third section of ordinance No. 38 of the convention of 1867, (Pamph. Acts 1868, p. 185,) which is as follows: “ Sec. 3. And be it further ordained, and it is hereby declared, that there is a failure of consideration, and it shall be so held by the courts of this State, upon all deeds, or bills of sale, given for slaves, with covenants of warranty-of title or soundness, or both, and upon all bills, bonds, notes, or other evidences of debt, given for or in consideration of slaves, which are now outstanding and unpaid, and no action shall be maintained there; and that all judgments and decrees, rendered in any of the courts of this State since the 11th day of January, 1861, upon any deeds or bills of sale, or upon any bond, bill, note, or other evidence of debt, based upon the sale or purchase of slaves, are hereby declared set aside, and the plea of failure of consideration shall be held a good defense in all actions to said suits; Provided, that settlements and compromises of such transaction, made by the parties thereto, shall be respected.”

After the trial of this cause, to-wit, at the January term of this court, 1870, the said third section of said ordinance was declared to be unconstitutional, because it impaired the obligation of contracts. — McElvaine v. Mudd, Adm’r, *49344 Ala. 48. That decision leaves the ruling of the court below without any legal support.

The judgment must be reversed, the non-suit set aside, and the cause remanded for a new trial. The appellees will pay the costs, &c.

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