Merrill v. Melchior

30 Miss. 516 | Miss. | 1855

IÍANDY, J.,

delivered the opinion of the court.

This was an action instituted by attachment in Claiborne Circuit Court, to recover damages for a breach of warranty of soundness of a slave brought into this state for sale by the plaintiffs in error, and sold by them to the defendant in error.

The breach of the warranty is not contested; but the defence in the court below was rested mainly on .the ground that the slave, having been imported into this state for sale by the vendors, was sold by them to the defendant in error, without having registered with the clerk of the Probate Court of the county, where the sale took place, a certificate, under the provisions of the fourth section of the act of 1822, (Hutch. Code, 513,) made by persons in the comity from which the slave was brought, stating that the slave had not been guilty or convicted of murder, burglary, arson or other felony: that by the fifth and sixth sections of the same act, such certificate was required to be so registered by the seller, he previously making oath that he believes the contents of the certificate to be true: and any person selling or purchasing any slave without having complied with these provisions was subjected to a penalty of one hundred dollars. It was proved by the probate clerk of Claiborne county, that no such certificate was registered in his office by the vendors of this slave. And upon these facts the defence was, that the contract of purchase between the plaintiff and defendants was in violation of public policy and void under the provisions of this statute, and that no right of action could accrue to either of the parties in consequence of it.

It is admitted that the failure to register the certificate was a violation of the statute on the part of the vendor; but it is insisted, on behalf of the plaintiff in error, that it was also the duty of the purchaser, under the statute, to have the certificate registered, and that his purchase of the slave, without that, was a violation of the policy of the statute and illegal, and that no right of action could be founded on the contract. /

The question is thus presented, whether the statute makes it the duty of the purchaser, before purchasing a slave brought here for sale, to have the required certificate, registered; for if that be incumbent upon him, his failure to cause the act to be done, places him in pari delicto with the seller, and he can found no right upon his violation of the law. In determining this question, we have first to consider the provisions of the statute, and its peculiar phraseology.

The fourth section makes it unlawful for any person to import into this state any slave as merchandise, without having obtained a certificate such as is above stated, as to the character of such slave.

The fifth section provides, that “ any person who shall sell any slave brought into this state as merchandise, shall cause to be registered with the registrar of the Orphans’ Court of the county, where such slave is first sold, every certificate as aforesaid, the seller previously swearing that he believes the contents of such certificate to be just and true; which oath said registrar is authorized and required to administer,” &c.

The sixth section provides, that “if any person shall sell or purchase any slave or slaves without having complied with the provisions of this act, he, she or they so offending, shall pay the sum of one hundred dollars for every slave so sold or purchased,” &c.

It was manifestly the policy of these enactments to prohibit both the sale by traders, and the purchase by our citizens of slaves imported here for sale^ unless accompanied by the certificate of character deemed proper in order to their safe admission among the slave population of the state. But the peculiar language of tbe provisions renders it difficult to ascertain wbat is required to be done by the purchaser, and when he becomes subject to the penalty prescribed, and the disabilities arising therefrom.

The fifth section requires, that any person who shall sell any such slave, shall have the certificate registered in the county where the slave is first sold, first making oath as to the truth of the certificate. A positive duty is thus enjoined upon the seller; one that, from its nature, can be performed by him only, and which he is only required to perform after he shall sell the slaves; for if he does not make a sale of the slave, he is not required to register the certificate in any particular county. The mere offering the slave for sale does not oblige him to make the registry, nor is he compelled to do so pending a treaty for a sale, nor at any other time except after he shall have sold the slave; for until then, the slave is not introduced among the slave population of the state, and the mischief intended to be prevented has not occurred. And it is clear that he could not be prosecuted for the penalty under the statute, if he made the registry after the sale, and before any injury could arise from the introduction and sale of the slave.

Thus far the statute appears to be plain. But the sixth section prohibits any person from selling or purchasing any slave, “without having complied toith the provisions of this act.” It is to be observed, that the act no where requires anything to be done by the purchaser. Nor could he perform the acts enjoined upon-the seller, and which required his jaersonal oath. There is no specific duty enjoined upon the purchaser to be “complied with by him.” It cannot justly be taken, by intendment, that he shall see that the certificate is registered before he completes the purchase, because that would be to charge him with a duty which is not enjoined upon him by the plain terms of the act, and to enlarge the scope of the act so as to bring him, by construction, within its highly penal provisions; which is not admissible in statutes of a penal character. Dwarris on Stats. 736. And this construction would require him to have that done, pending the treaty for the sale, which the policy of the statute and its express terms require to be done only by the seller, when the sale is completed.

With these considerations in view, it is not an easy matter to come to a satisfactory conclusion, as to tbe particular duty which the purchaser is required to perform, and for the omission of which he must incur the heavy penalty of the statute. It is neither made his duty nor is it within his power, to have the certificate registered before the sale. The seller is only required to make the registry after the sale. What, then, is the duty of the purchaser, in view of the policy of the statute ? He can do no more than to require the seller to produce to him the'certificate, and, upon examination of it, and finding it to be in conformity to the statute, to rely upon the pledge of the seller, that after the sale is completed, he will have it registered, after making the affidavit required by the statute. If such had been the case, and after the sale the seller had failed to perform his duty, as required by law, or to comply with his agreement with the purchaser, it could not with any justice be said that the purchaser should be prejudiced by his delinquency, and especially that, in a matter of private right between the parties, growing out of the transaction, the seller by his own default, should render the contract illegal, and avail himself of that against the right of the purchaser. In such a case, the violation of law would be on the part of the seller, and the purchaser could not be said to be in pari delicto with him.

It is manifest, and admitted, that the seller has violated the law, in any view that can be taken of the statute, whether the certificate was required to be registered before or after the sale. The position of the purchaser is at least one of doubtful violation of law, and the rule is, that if a contract is susceptible of two interpretations, one legal and the other illegal, that interpretation shall be given to it which renders it valid, Chitty, Con. 659; and as he is shown to have sustained a loss in consequence of the illegal acts of the seller, it should not lie in the mouth of the seller to deny his right to recover, by involving him in the disabilities incident to a transaction clearly illegal as to himself, but of doubtful illegality as to the purchaser. They could not in this view be considered in pari delicto.

The record shows no further failure to comply with the requirements of the statute, than that there was no registry of the certi-cate in the probate clerk’s office. It does not appear that the plaintiffs in error had not the proper certificate before the sale, and that it was not submitted to the purchaser. If such was the case, it would be sufficient, under the view we take of the case, to absolve the purchaser from a participation in the illegal contract. And it was incumbent on the plaintiffs in error, to show that the certificate was not in their posssession, nor examined by the pur chaser; for every presumption is in favor of the legality of the transaction, and it is for the party alleging its illegality to show everything necessary to render it so, though the proof be of a negative character. Chitty, Con. 659, (6 Am. Ed); Williams v. East India Co., 3 East, 192.

The decision of the court below was in accordance with these views of the subject, and we think it was correct.

Another error assigned is, that the court improperly awarded a writ of inquiry to assess the value of the property attached in the suit, the original jury which tried the cause having failed to do so. The action was by attachment, under the act of 1854, the second section of which provides, that where the property attached shall be replevied, the jury, if they find for the plaintiff, shall assess its value, and judgment shall be rendered against the defendant and his sureties. The verdict being for the plaintiff, but without an assessment of the value of the property attached, the court awarded a writ of inquiry, to be executed at the same time, which was done by another jury.

We think this was justified by the rule held in Drane v. Hilzhiem, 13 S. & M. 337; and the provision in the act of 1854, that the value shall be assessed by “the jury trying the issue between the parties,” does not change the rule. This, of course, would be the regular and formal mode of assessing the value of the property. But it does not conclude the court of the power to have the value assessed by another legal jury at the same term that the jury which tried the cause have failed to perform a part of their office. The exercise of such a power was necessary to the administration of the law applicable to the case, and is. inherent in the court in furtherance of justice. 2 Tidd, Pr. 922, note n, and cases cited.

The judgment is affirmed.