Gottschalk v. De La Rosa

Mathews, J., delivered the opinion of the court. In this suit the price of a mulatto worn an and her child is claimed from the defendant, as purchaser at a sale by auction. The conditions of the sale was that a note should be given, satisfactorily endorsed, payable six months after date. This condition, it is alleged, the defendant refused to comply with, and the immediate payment of the price, was claimed in the present action, &c. The defendant pleads, as a defence against the recovery of the price, freedom of the persons sold; and that they had been introduced into the state contrary to the acts of the [221] legislature, as they then existed, relating to the introduction of slaves, &c. where a slave is adjudicated at auction on a credit, and the vendee ^thSthe0to™splof aSioaabroughtafS“ntiffUmshoSd am?wMx°3¡os¿ mediátepaymmt; case, if the plaintiff demands absolute judgtiíeprayeífórgeSie^thf si«!¡SineCtho case on its merits, The court below dismissed the suit as having been prematurely brought, and the plaintiff appealed. The points filed on the part of the defendant in the Supreme Court, correspond with the pleas above stated. The action is not brought in the most correct form, it ° would have been more technical, had it been instituted in the alternative, requiring the defendant either to comply with the condition of the sale or pay the price. There is? however, a prayer for general relief, which we believe enables us to decide the cause on its merits, and as the term of payment has long since elapsed, justice requires that this should be done. Freedom, as pleaded, is not supported by the evidence the case. But the defendant has also pleaded an action pending against him, commenced on the part of the slaves now in controversy, to recover their liberty, and the tendency -i.,, i.-i , of such suit is admitted to be true. As to the laws relating to the introduction of slaves into the state, relied on by the counsel for the appellee, they have been all repealed; consequently, persons who dealt in slaves, even admitting that they were introduced contrary to those laws, are no longer liable to suffer the penalties inflicted, and freedom of the slaves was not a consequence of the violation of law in their introduction. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided, reversed and annulled, and that the suit be reinstated. And proceeding here to give such judgment as, in our opinion, ought to have been given in the court below. It is, further, ordered, adjudged and decreed, that the plaintiff and appellee do recover from the defendant and appellant, the sum of five hundred and sixty dollars, with interest at the rate of five per cent per annum, from the 11th of November, 1832, until paid, with costs in both courts. But it is ordered, that no execution shall issue on this judgment, until the plaintiff [222] &Lve lo defendant, good and sufficient security, to be aPProved of by the court below, to save and keep the latter free from all injury which may accrue in the event of the slaves establishing their claim to freedom, in the suit now pending for that purpose.