Gunter v. Leckey, 30 Ala. 591

30 Ala. 591 | Ala. | 1857

RIGE, O. J.

Section 399 of the Code 'declares, that if any person, “being a negro-trader, broker or agent for the sale of slaves, sells, offers, or exposes for sale, any slave, without first obtaining a license therefor from the proper authority, he is guilty of a misdemeanor, and, on conviction, must be fined not less than the State tax as fixed in this article for such license.” Section 400 declares, that, “in addition to the penalties provided by the preceding section, the sale of a slave by a negro-trader, broker, or agent for the sale of slaves, is void as to the seller, and the 'purchase-money may be recovered back, by action commenced within., one year from the payment thereof.”

Beyond doubt, “the sale of a slave by a negro-trader,” in this State, without a license therefor duly obtained, is illegal; and whenever such trader is the plaintiff in an action, if he is unable to establish his claim, as stated upon the record, without relying upon such illegal sale-, or if he requires any aid from it to establish his case, he cannot recover in a court of law. — McGehee v. Lindsay, 6 Ala. 16; Booth v. Hodgson, 6 Term R. 405; Simpson v. Bloss, 7 Taunton, 246; Firaz v. Nieholls, 2 Man. Gran. & Scott, 500; Phalen v. Clark, 19 Conn. 421; Harris v. Runnells, 12 How. (U. S.) R. 70; Smith v. Mawhood, 14 Meeson & Welsby, 452.

The main question in this case is, whether the transaction disclosed by the facts admitted by the parties, is a sale within the meaning of the statutory provisions above quoted.

Upon, authority it is settled, that there is a difference between a sale and an exchange, or a bargain of barter. — 2 Bla. Com. 446; Chitty on Con. (ed. of 1851), 332; 1 Parsons on Con. 436, and note (o); Hilliard on Sales, 8; Story on Sales, 1. A contract of barter, or exchange, cannot be changed into a contract to pay monqy, unless the parties come to a fresh agreement to that effect. — Harrison v. Luke, 14 Meeson & Welsby, 139.

In the appendix to Smith on Contracts, 330, (56th vol. of Law Library, top page, 151,) the sense in which we think the word sale was used in the statutory provisions above cited, is expressed with more fullness and accuracy than in any other book which has come under our notice. The expressions there found are the following: “Sales include all agreements, by which property is parted with for a valuable consideration, whether there be a money payment or not; provided that the bargain be made, and the value measured in money terms. For instance, it includes all eases where there is a transfer of credit, by which means the great bulk of commercial dealings is effected. Money itself very rarely passes, except in the small retail purchases of life. Even where checks are drawn and paid, it frequently happens that no money passes. In the clearing-house in the city, where the London bankers exchange checks drawn on them against each other, payments amounting to many millions sterling are thus made every week, by means of a simple transfer of credit from one banking-house to another. Contracts of sale, therefore, are by no means limited to sales for money; but on the other hand, neither do they extend to bargains of barter. Where one article or set of goods is intended to be exchanged for another, no price (pretium) being attached, it is not a sale, for the transaction is, in the first instance, made as an exchange of goods, without reference to money payment.” — See Williamson v. Berry, 8 Howard’s (U. S.) Reports, 544.

A transaction, whereby the title and possession of a slave is parted with for a valuable consideration, whether there be a money payment or not, provided that the bargain be made and the value measured in money terms, and paid or agreed to be paid in something which the parties agree to treat as a specified amount of money, is a sale within the meaning of the statute above cited. Rut a transaction, whereby A. transfers to B. two slaves, and receives therefor from B. two slaves and one hundred dollars, no price being attached, and no value measured in money terms, is not a sale within the meaning of the statute. One of the essential ingredients of the sale contemplated by the statute, is, that the value be measured in money terms. — 2 Kent’s Com. 468,477, and authorities cited supra.

It is entirely competent for one person, who desires to sell another a slave, to agree with him as to the value measured in money terms, and at the same time to agree to receive another slave as a specified part of that value, and the other part in money; and when such agreement is made and executed, the transaction is a sale within the meaning of the statute. In such case, the slave received as a specified part of the fixed price or value would, by the law, be deemed as so much money paid; and the agreed price of the slave, so received in payment, could be recovered back as somuchof “purchase-money,” if the seller was a negro-trader, and had no license, and was sued by the buyer, in the mode, and within the time mentioned in the statute. The principle would apply, that if a thing be received as a specified sum of money, and the parties agreed to treat it as so much money, the party receiving it shall not, when sued for it as money received, defeat a recovery, by alleging or proving that in fact money was not received.— Stewart v. Conner, 9 Ala. 803; Cameron v. Clarke, 11 Ala. 259; Pickard v. Banks, 13 East’s Rep. 20.

To bring the transaction within the statute, it is not enough to show that the unlicensed negro-trader received a sum of money, and some other valuable thing, for his slaves. It must be shown, also, that the other valuable thing received by him was, by the terms of the transaction, received or treated as money, and as an ascertained or specified part of the agreed price of his slaves.

The statute is penal in its nature, and in derogation of a common-law right. It is not therefore to be extended, or made more penal by construction. 'Without disregarding salutary rules, we cannot believe or declare that the word sale, as therein used, was used in a more comprehensive sense than we have given to it in what we have above said.

The bill of exceptions in this case states, that it was admitted, that “the plaintiff was a negro-trader, and, being such, he sold to defendant, in Lawi’ence county, Ala., two negroes named Mary and Eliza, and in payment therefor received the negroes Addison and Harriet, for the conversion of whom this suit is brought, and one hundred dollars in money.” But the bill of exceptions does not show that any price was fixed upon the first mentioned negroes, nor that the plaintiff received or treated the last mentioned negroes as a specified sum of money, or as money at all. When the facts of the transaction are admitted, as in this case, the question whether it amounts to a sale is a question of law. That question must be determined, not from the name which the parties give to the transaction, but from the facts which demonstrate its nature and character. — Foreman v. Hardwick, 10 Ala. 316. And although the parties here call the transaction, as set forth in the bill of exceptions, a sale, we feel bound to declare that, in the contemplation of the statute, it is not a sale. Whether, on another trial, the evidence may not show that the transaction was a sale, we cannot say. But upon the facts, as disclosed on the record now before us, the court below erred in its charge in treating the transaction as a sale within the meaning of the statute above cited.

As the cause must be remanded, we deem it proper to say, that there is another error in the charge. It was admitted that the plaintiff had no license, granted by the probate court of Lawrence county. Buttherewas no admission that he did not have a license from some other probate court. A license to sell slaves, granted by any probate court or probate judge in this State, is good in every county in the State. Now, although the jury might have been authorized, from the admission made, and from the failure of tlie plaintiff to produce any licens'e, to infer and find that he had no license; yet it was not a conclusion of law, from the facts stated, that he had no license. The court erred, therefore, in not leaving to the jury the question of the existence or non-existence of the license. The nonexistence of the license was one of the matters, essential to the defense; and as it was neither admitted, nor stated as a fact in the testimony, the court erred, in charging that, if the jury believed the state of facts set forth in the bill of exceptions, they must find for the defendant. It will not do for the court to overlook the distinction between facts admitted, and the inferences which the jury only are authorized to draw therefrom.

For the errors in the charge of the court below, pointed out in this opinion, the judgment is reversed, and the cause remanded.