Martin v. Reed , 37 Ala. 198 ( 1861 )

STONE, J.

The status of a slave, under our laws, is «one of entire abnegation of civil capacity. He can neither make nor receive a binding promise. He has no authority to own any thing of value, nor can he convey a valuable thing to another. Plence, he cannot, of himself, give a consideration, “valuable in the law,” which consideration is necessary to uphold an executory promise; and indeed, "any person who sells to, or buys or receives from any slave, any article or commodity of any kind or description, [other than vinous or spirituous liquors,] without the consent of the master, owner, or overseer of such slave, verbally or in writing, expressing the articles,” &c., is guilty of a misdemeanor. — Code, § 3285. Vinous and spirituous liquors had been provided for in a previous section. — Code, § 3283. Money received from a slave comes within section 3285, We have, then, the case of a slave, who could not be the owner of money, but holding money, which, in the law, was the property of his master, (Webb v. Kelly, at the present term,) having no civil capacity to part with that money, or to receive a promise to repay the same, but who does part with it to a white person, — the latter, in the act of receiving it, committing an indictable offense under our penal statutes. Nay more : Mr. Martin, in receiving the money from the slave, and retaining it, subjected himself to an action at tile suit of Mr. Godwin, for money had and received. — Brandon v. Huntsville Bank, 1 Stew. 341. Can a right of action be based on such a promise as this 1

In the leading case of Fable v. Brown, (2 Hill’s Ch. 397,) the court of ajqieals of South Carolina — Ch. Harper delivering the opinion — ruled, that “an executory contract, made with a slave, cannot be enforced. No action could be maintained on a bond or note given to a slave. Neither master nor slave could maintain an action,” &c. In the case of Gregg v. Thompson, (2 Const. Rep. 330,) the suit was brought by the roaster, oi) a note payable to his slave. The court decided, that the action could not be maintained. See, also, Cobb on Slavery, § 268'.

The defense set up in the second plea, if proved, will bar all action on the note in suit; and the circuit court erred in sustaining the demurrer to it.

Reversed and remanded.