1789. October 27. Although the rule of law is, EVELEIGH against the Administrators of SFITT. THIS was an action on a warranty, in order to recover that the value the value of sundry negroes, sold by the deceased Stitt; of the thing at the time of and which, by a title paramount to that under which he eviction or re- held, had been recovered in an action against the plaintiff, by the trustees of Mrs. Huxam. may them, accord cumstances and justice of the case. : be the measure of damages; yet, un- The case was briefly this. During the war, while paper der very peculiar hard- money was in a rapid course of depreciation, Baker, the ships, a jury lessen former husband of Mrs. Huxam, sold the negroes in quesing to the cir- tion to one Phepoe. Phepoe soon after sold to Burke, who sold to Stitt, who again sold to the plaintiff Eveleigh. In the whole course of these transactions, no money was paid, but bonds given by the different purchasers for the purchase money nor was any possession given of the negroes, till the present plaintiff got them from Baker. Soon after the peace, Mrs. Huxam's trustees brought an action against the present plaintiff, who was then possessor, and recovered them; they having been settled on her by Baker, previous to their marriage. This occasioned the present suit against the estate of Stitt, and the only question of difficulty which arose was, what should be the measure of damages? whether the value of the negroes at the time they were sold, or their value at the time they were recovered from Eveleigh? The case being a new one, and a kind of speculating contract, out of the usual course of things, without any consideration passing from the buyers to the sellers, and without any view to the use and labour of the negroes; and one which was likely to fall extremely hard on Burke, the only ostensible person in the country, Phepoe having gone off; and Baker's estate not sufficient to make good the loss; The Court, under the peculiar circumstances of the case, left it to the jury to give what they thought reasonable. The Jury accordingly allowed the average price of the negroes, between the first and last sale, according to the scale of depreciation, with interest on that sum till the time of verdict. In this verdict all parties acquiesced. Moultrie, for plaintiff. Pringle, for defendant. In the course of the arguments, the case of Liber and wife against the executors of Parsons, (ante,) was relied on, as in point for the plaintiff, for the full value of the negroes. And in reply, it was acknowledged, that the doctrine laid down for the plaintiff in that case, was the general law with regard to damages. But that this was an exception to the general rule, on account of the peculiar circumstances under which these different contracts were made, and the extreme hardship of the case should it fall on Burke, who had never gained a shilling by it, and who was the only person left to make good whatever damages might be given. HAM, qui tam, against M'CLAWs and Wife. AN information was filed in this case, by the attorneygeneral, on behalf of the state, against seven negro slaves, seized by the plaintiff, a revenue officer, on the ground that they had become forfeited, being imported contrary to the directions of the act of the legislature, in that case made and provided. son, are null and void, as far as they are to opposed The claim interposed by the defendants, was on behalf of the two infant children of Mrs. M'Claws, one of four and the other of eight years of age, to whom the negroes belonged, and for whom she (Mrs. M'Claws) was a trustee. are bound to The Judges give such a construction to acts of the legislature, as is consistent with justice and the dictates of natural reason, though contrary to the letter of the law. Negroes, therefore, brought into this state by actual settlers, after the passing of the instalment law of 1788, under the sanction of the former law of 1787, before such actual settlers could possibly be informed of the law of 1788, are not liable to forfeiture, though no express proviso be in the act for that purpose. 1789. Ham V. M'Claws and wife. From the examination of sundry witnesses, it appeared, that the claimants had been, for some time previous to the seizure, settlers at the British settlement on the Bay of Honduras; but in consequence of a great scarcity of provisions, which had nearly produced a famine in that place shortly before their arrival here, they had been induced to leave the settlement, and come to Carolina with a view of actually settling. It further appeared, that previous to their sailing from the bay, (about the latter end of August or beginning of September, 1788,) they had taken much pains to inform themselves whether there was any law of force in this country which prohibited them from taking along with them, the negroes belonging to the children, and were informed, that provided they went as actual settlers, there was no law which would operate against them; but if negroes were taken for sale, they would become forfeited. That under these assurances, they embarked. On the part of the prosecution, it was contended, that whatever might have been the assurances or impressions of the claimants, at the period these negroes were removed into this state, they became forfeited to all intents and purposes, by virtue of the 16th clause of the instalment act passed the 4th of November, 1788; which is in the following words: "That no negro or other slave shall be im ported or brought into this state, either by land or water, "on or before the first day of January, A. D. 1793, under "the penalty of forfeiting every such slave or slaves, to any person who will sue or inform for the same; and under "the further penalty of paying 100%. to the use of the state, "for every such negro or slave so imported or brought in. "Provided, that nothing in this prohibition contained, shall "extend to such slaves, as are now the property of citizens "of the United States, and at the time of passing this act "shall be within the limits of the United States." The only exception in this clause, it was said, was with regard to negroes, the property of the citizens of the union, and within the limits of the United States, on the day of the ratifica tion of the act. That the negroes in question did not come That it On behalf of the claimants, it was urged by their counsel, in reply, that it would be one of the hardest cases ever decided in a court of justice, were the negroes in question taken from the children to whom they belonged, with the additional forfeiture of seven hundred pounds sterling, besides the loss of property. They called the attention of the court and jury to the former act of assembly, prohibiting the importation of negroes, passed on the 28th of March, 1787. The ninth clause of this act, they observed, prohibited the importation of slaves, under the pain of forfeiture only ; but there was an express proviso in it, that the penalty of the act should not extend to the negroes of transient persons or travellers, passing through the state; nor to the slaves of persons coming to settle and reside within the state, who should not sell them within one year after their arrival within it. That the act of 1787 remained in full force till the act of the 4th of November, 1788, was ratified. It was, therefore, under the sanction of the proviso in the former act, that the claimants left the Bay of Honduras, with a view of residing in this state. They left the settlement on the bay about the latter end of August, or beginning of September, 1788, and never arrived in the port of Charleston till within a few days after the 4th of November following. It was, therefore, impossible for them to have known of this latter act, as they were, on the day it passed, on the high seas, on a lawful voyage, and with a lawful intent, that of becoming citizens and settlers in South-Carolina, 1789. Ham V. M'Claws and wife. M'Claws and wife. under the authority of a law which they had been informed of before they embarked. To deprive them, therefore, of their under these circumstances, and subject them property to so heavy a penalty in addition to it, would be such an act of injustice as the legislature never could have intended. It would be contrary to common right to give the act such a construction. It would be no less than holding out a boon to decoy with one hand, in order to strike a fatal blow with the other. The act of 1787, held out allurements to persons to come and settle in our country, and bring their negroes with them. The act of 1788, if the rigid construction was given it, which is contended for, without allowing sufficient notice for persons to be informed of it, would be calculated to ruin the unsuspecting stranger who had reposed confidence in our government, and promised himself protection under its act of 1787. That therefore the intention of the legislature must have been to exempt those negroes from forfeiture, who were upon the way, or on the point of arriving in the state, under the sanction of the former law, when the latter act passed, though not expressed in the words of the law itself, otherwise it would be chargeable with manifest injustice, which is not to be supposed from a body of sage legislators. Nor could they ever have intended the penalty for travellers passing through the state, or persons in distress, as were the present claimants, persons retiring from a place threatened with famine. That at all events the act was obscurely penned, and not guarded sufficiently, to prevent injustice, if the letter was to govern the construction. It was, therefore, the duty of the court, in such case, to square its decision with the rules of common right and justice. For there were certain fixed and established rules, founded on the reason and fitness of things, which were paramount to all statutes; and if laws are made against those principles, they are null and void. For instance, statutes made against common right and reason, are void. 8 Rep. 118. So statutes made against natural equity are void; and so also are statutes made against Magna Charta. Ibid. 118, |