The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-03-11
THE NEGRO BOND,CASES.
Arguments of Messrs. Whaley, Simonton
and Wilkinson.

and Wilkinson.
The cases of Tupper vs.. Bailey, Tupper vs.
Eddings, Elliott vs.. Trescot, and Treseot ads.
oibbes were all argued together yesterday before
Judge Carpenter as involving The important ques-
ton of the validity OF contracts the consideration OF
which was t'e purchase Of saves Tho issue as
made before the Judge involved two distinct ques-
tons: first, as to the validity of such contracts in
general: second as to the effect of mortgage-tbe
second question being Of almost equal interest With
The first Us slaves were rarely sold cred. without
mortgage being given By the purchaser. 1t was
claimed by The plaintiffs, first, that such contracts
were valid and that the provision of the Constitution
of South Carolina adopted in 1e6S, taking away the
remedy for the breach Of them and the act OF the
Leeis AZURE naGe in pursuance thereof, were void,
as impairing the obligation Of contracts. ID That
mortgage was only collateral security, and did net
vest the title of the property morgaged in the mort
pacee in such manner as to the loss to fall On
him in case the property was destroyed. The de-
PENDANTS claimed lst Th.t the contracts under con-
sideration were void. because so declared by the
Constitution of the State, and that the provision OF
the constitution and the net of the Legislature In that
regard were not contrary to the Constitution OF the
United States 20. That the MORTGAGE was the legal
owner of personal property mortgsged, and, there
fore, the person n ON whom the loss must fall
William whaley, Etq., opened ior the defence. and
made an original and ingenious argument. He con
tented that he court had no jurisdiction in the
premises because the act creating the court e1-
pressly excepted from its jurisdiction all cases not
cognizatla by the Constitution OF the Slate, and the
constitution had declare contracts like these under
examination null and void. This was the law, un-
less the State Constitution in this particular came in
conflict with the United States Constitution; and he
contended that it did not, because South Carolina
was military dependency, and not State, at the
time of tne adoption Of the constitution, and
the United States Constitution only prohibited
Estates from passing laws impahing the obhsa-
tons OF contracts He said that the Constitution Of
the United States not bling in force in South Caro-
ma at the time ofthe adoption of the State Consttu-
ton, the latter could not be in conflict with the
for mer In support of this position, he quoted de-
cisions the United States supreme Court sustaining
the consut of the several States which impaired
contracts before the adoption of the Constitution of
the United States and also the Constitution of Texas,
which impaired contracts made before its admission
into the Union.
In regard to the effect OF mortgage, he claimed
that the bond the mortgage and the bill Of sale
contemporaneous documents and formed but one
contract, which was executory and not executed,
and which therefore, did not pass the property to
the vendee that the legal title the property in
the mortgagee that according to the general law of
baments when property was lost as in this case, by
the action of the uis major, or power beyond the
control of the parties, the loss should fall on the le
gal owner.
He claimed as further bar to the recovery of
the plaintiffs in this case, that there had been fail
ure of the consideration of the contract. They had
warranted good title, and the title had been super
ceded. He claimed that it was different case from
that of the death of slaves for their mortality was
thing known and calculated on, but emancipation
was neither known or thought of by them.
Charles b. simonton. Esq, replied to Mr.. whaley.
He denied that the State not State at the time
of the adoption OF the constitution 1t was the doc
trne sustained by the war; by the acts of Congress-
and by the courts. that the States had never been
out of the Union, and consequently never without
the pale of the constitution. Acts of Congress were
enforced here and United States Courts were held
here during the military rule, and both the courts
and the military but the creatures of the United
States Cons titudon, and the officers Of both were
sworn to support the Constitution Of the United
States The Constitution of the State was therefore
bound to conform to the Constitution OF the United
States and the provision taking away all remedy for
the breach Of slave contracts. being In violation of
tho prohibition Of :he United States Constitution
against impsirin9 the obligation Of contracts, was
null ard void.
mortgage, he contended. was only collateral
security and could not be regarded as satisfaction
on bond. The mcrtgagoe not having control over
the property, except in case of forfeiture, and then
only in trust for the mortgagor to pay the debt and
refund the surplus could not be called tho owner.
As to the warranty Of ue it was only warranted that
the vender had good title himself at the time Of the
sale, and could convey the same to his yendee 1t
was pre2osterous 10 suppc that warranty extend
ed to anything which might occur after the sale was
complete.
Mr. Wilkinson followed in support Of the defence.
BE contended that the equity and law jurisdiction,
thora ah now confded to one judge were still distinct
and that common law cases must be conducted
strictly according to the common Law, and that per-
sons feeling ipjpred thereby, must appeal to the
equity side of he court for relief This, he contend
ed, was purely nit at law and must be go treated.
2 he difficulty .b:ut the present case was that in
stead Of the mortgaser being, usual the equity
court seeking relief from his forfeiture, he in
the law court acknowledging his forfeiture and plead
ing it in bar to any further recovery on the bond.
The property mortsased was gilmore value than the
amount Of the bond, and 1t was, therefore, fair to
presume that its forfeiture was sufficient satisac
ton of the b,nd. At any rate the contrary did not
appear on the pleading, and the law did not allow
more than one satisfaction OF debt.
The arg uncut will be concluded to-day.