majority"> Smith, C. J.,

after stating the case. It is properly conceded, and such is the frame of the complaint, that the intestate had-the entire four years ensuing the marriage in which to fulfill his stipulation to procure and put such slave'' under the trusts of the deed, and that his covenant was broken by his failure to do so at the expiration of that time.

We interpret the contract to mean that a slave woman of such condition and quality as would be worth the sum specified, at the time when it was entered into, should be obtained and settled to the separate use of the wife, and that if one of this description, at whatever price obtained, had been placed under the said trusts, within the time limited, the obligation assumed would have been met.

The words “ to be worth not less than nine hundred dollars” are used 'as descriptive of the female slave to be purchased, and not of the sum to be laid out in the purchase. Thus understood, if slavery had ceased to exist before the *209 lapse of the period allowed, it would have operated as a discharge, since no one can be required.to do an illegal act or be liable in damages for not doing it. So if by the approach of that inevitable event, this form of property had become so reduced in value as to be almost worthless, the compen-' sation would be measurable by the value of what, if furnished, would have been a compliance with the terms of the contract and which the testatrix has lost.

Slavery was not in fact abolished on January 1st, 1863, by the president’s proclamation, but in the exercise of a war. power the slaves themselves were set free as the territory wherein they were found came under the control of the-advancing armies of the United States. Harrell v. Watson, 63 N. C., 454. But the tenure by which this species of property was held became, in the progress of events, weakened, and its value greatly impaired; and to what extent was a matter to be left to the jury in estimating the damages sustained ? What is the extent of the injury to the testatrix ?

Had the slave been obtained, the property therein would have speedily perished, and in the light of an equitable proceeding, the damage would have been the loss of services for a brief period only. But whatever rule of estimating damages he adopted, it is plain the}* must be assessed by a jury upon evidence, and without evidence, only nominal can be recovered.

There is no error, and the judgment must be affirmed.

No error. Affirmed.

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