dissenting.
I am unable to agree with the majority of the Court in the judgment rendered in this case. The seventeenth section of the fifth Article of the Constitution of this State declares that “ no Court or officer shall have, nor shall the General Assembly give, jurisdiction or authority to try or give judgment on, or enforce any debt, the consideration of which was a slave or slaves, or the hire thereof.” This Court has held, after solemn argument, that the above section of the Constitution is not itself unconstitutional, but is valid and binding.
The defense set up by Dever in this case, by way of illegality to the execution, was, that the debt upon which the judgment was obtained could not be enforced under the above provision of the Constitution, because the consideration of it was slaves. The fact whether the consideration of the debt was a slave or slaves, was the issue, and the only issue, which could be properly submitted to the jury on the trial, and it was the duty of the Judge to have submitted it« fairly and impartially to their consideration. Was it done? I think not.
The Court distinctly charged the jury that the above recited provision of the Constitution of this State “ wasmeonstitutional and void, and if the consideration of the note was a slave or slaves, the Court has jurisdiction, and the jury *433should find a verdict against the illegality.” This éharge was the very opposite of the decision of this Court, and it withdrew from the consideration of the jury all evidence introduced by Dever in support of his rights under the Constitution of the State and the decisions of this Court, by instructing the jury in effect to find against him if they should believe that the defense set up by him, that the note was given for negroes was fully established. In other words, the Court usurped the powers of the jury, and virtually instructed them that they must find against Dever, no matter what they might think of the evidence produced by him in support of his rights.
If there was any evidence before the jury going to prove that the note was given for slaves, this charge was wholly unauthorized, and this Court should not hesitate to set aside the verdict, and order a new trial in the Court below. Was there any such evidence? Mr. Dever sworn, as a witness, whose credibility was not pretended to be questioned, stated, that the note sued on was given for and in consideration of negroes purchased by defendant from Thomas H. Freeman, that Freeman requested him to give his note to Tumlin for the amount specified in said note, which he did. freeman was indebted that amount to Tumlin for land and stock, as he understood from the parties. Defendant gave his note to Tumlin as requested, and the consideration of the note so given was the negroes purchased from Freeman. Defendant never purchased any negroes from Tumlin, and the consideration of Freeman’s indebtedness to Tumlin was land and stock according to the understanding of defendant. He further admitted that he understood from William M. Tumlin and Freeman that Tumlin had sold land and horses to Freeman, and that Freeman was owing Tumlin the amount of the note he gave Tumlin, and that he supposed he gave the note to Tumlin for the amount Freeman owed hirp for land and horses.
This testimony contains not one word about the extinguishment of the debt due by Freeman to Tumlin. ' For any thing that appears, the note given by Dever to Tumlin, at Freeman’s request, may have been intended merely as collat*434eral security. Here there is no sufficient evidence of an extinction of the debt which Freeman owed Tumlin, to sustain the charge .of the Court. Taking this evidence alone, I think it would have been the duty of the jury to have found that the note was given, as the witness swore it was, for negroes, and that the Court manifestly erred in refusing to permit the jury to consider this evidence, and' if they were satisfied it established the fact that the note was given for slaves, to find for the illegality.
I am aware that William' M. Tumlin, the payee and endorser of the note, testified that it was given in exchange for a note he held on Freeman, and I do not pretend to say, what weight this evidence should have had with the jury in satisfying-them that there was a novation or substitution, and that the consideration of the note was not negroes,’but the extinguishment of the debt due by Freeman to Tumlin. I simply say that the evidence on both sides should have gone to the jury, under a proper charge of the Court, as to what constitutes a novation or substitution, as that was insisted upon by the plaintiff in the judgment, and they should have been left to find the facts. It matters not, therefore, so far as the correctness of'my position i's concerned, what Tumlin swore.- The jury may or may not have believed him. It was their exclusive province to weigh the evidence, and to determine upon the credibility of the witnesses. The case is fully made out in favor of my view of it whenever I show that there was any evidence, however much the evidence on the other side may have preponderated, upon which the jury might legally find a verdict for Dever, if they had disbelieved and rejected’all the evidence on the other side; and I think there was ample evidence on Dever’s side to have sustained a verdict in his favor if it, had been submitted to the jury without other evidence, or if they had.not believed the witness on the other side. This is the proper test.
But it is insisted by the majority of the Court that thé evidence made so clear a casé of novation as to Rave nothing for the jury to decide. This is not a question of novation, but a question of consideration. The Constitution, declares *435that no debt shall be enforced, the consideration of which was a slave or slaves, etc. Now an arrangement by which Dever gave Tumlin his note, at Freeman’s request, for slaves purchased of Freeman, though it may be one bind of novation, does not make the note collectable unless there was such an agreement between the parties as created a new consideration for the note given by him to Tumlin. If the consideration of the note was still the slaves which he purchased of Freeman, the note cannot be enforced. The fact that Freeman sold him the slaves, and requested him to give the note for them to Tumlin, can make no difference if the consideration of the note was still the slaves.
As is well known to every lawyer, a consideration is necessary to support a contract, and a consideration is valid if any benefit accrues to him who makes the promise, or any injury to him who receives it: Code, section 2698. If there be a valid consideration for the promise, it matters not from whom it moved, the promisee may sustain his action, though a stranger to the consideration: Code,, section 2705. It will hardly be insisted that any benefit accrued to Dever by the arrangement. He gave his note to Tumlin in place of Freeman, at Freeman’s request, and for his benefit. What did Dever get for the notes? What benefit accrued to him?’ Nothing but the slaves. Then there is no other consideration moving to Dever but the slaves. Did injury accrue toTumlin? That depends entirely upon the fact whether he released the debt which Freeman owed him. If he did not, he was benefitted rather than injured, as he got two securities, for his debt' in place of one. That was a question for the jury, and taking Dever’s side of the testimony, they might have found that such was the fact, as there is nothing in his testimony inconsistent with- the fact that the debt due from Freeman to Tumlin still existed, ánd that the note given by him to Tumlin, at Freeman’s request was only an additional-security for the debt due him from Freeman. Then there is nothing here inconsistent with the idea that the note was given for and in consideration of the slaves purchased by Dever from Freeman. If the evidence submitted on the *436other side contradicted that view, the jury, and not the Court, were the proper judges of that fact.
But section 2882 of the Code is relied upon by the other side. It is in these words: One simple contract as to the same matter, and on no new consideration, does not destroy another between the same parties, but if new parties are introduced by novation, so as to change the person to whom the obligation is due, the original contract is at an end. So it may be, and still the obligation may rest alone upon the original consideration. -I owe A $-100 for a horse. A owes B a like sum, and agrees with B to give him my note as collateral security, and requests me to giye B my note for the amount I owe him, for his accommodation. Here is a novation. Under this section, a new party|is introduced, and the person to whom my note is due is changed, but no new consideration has moved to (me, as no benefit has accrued to me, and no injury to B, by the change. Therefore, the horse is still the'consideration for my promise. But B, the promisee, in the language of the Code, may “ sustain his action, though a stranger to the consideration.”
Again, it is 'jnsisted that the agreement between these parties that Dever .should give his note to Tumlin for the debt which he owed to Freeman, was a novation, and that the legal effect of this novation is to extinguish the debt due by Dever to Freeman, and the debt due by Freeman to Tumlin, without any agreement between the parties that such shall be its effebt. In other words, that the,law works such extinguishment of the original debt without any .express agreement or consent of the creditor that it shall have that effect. And I may remark, that it is necessary to establish this doctrine before there is even a plausible pretext to sustain the ruling of the Court below in refusing to allow the jury undér any circumstances to find for Dever. But is this sound law? Clearly not. The very reverse is true. Pothier on Obligations, volume 1, side page, 550, discusses this question, and lays down the rule clearly and distinctly. He says: “ In order to constitute a novation, the consent of the creditor, or of some person having authority from him, or a quality to *437make a novation for him, is requisite. Bv the ancient Roman law, such consent might easily be presumed, but according to the Constitution of Justinian, in the late law, such intention should be positively declared, without which there could be no novation, and the new engagement which is contracted, is to be considered rather as having been made to confirm and accede to the first than to extijftguish it. The reason of this law is, that a person should irot easily be presumed to abandon the rights which belong to him. Therefore, as a novation implies an abandonment by the creditor of the first claim, to which the second is substituted, it ought not to be easily presumed, and the parties ought expressly to state it.”
This is the rule of the civil law from which we have derived the doctrine of novation, which may be of different sorts. Parsons on Contracts, pages 217, 218,.refers to the civil law rule, and lays down the common law rule as follows: “By the civil law, any new contract entered into for the purpose, and with the effect, of dissolving an existing contract, was regarded as a novation, and in the above case the civil law would recognize two sorts of contracts of novation the contract by which A is discharged from his liability to B, by contracting a new obligation to C, and the novation by which B would be discharged from his obligation to C, by procuring A as a new debtor. This distinction has not been preserved in the common law, and the rights ánd obligations of the parties in both cases are governed by the same rule. It will be seen, (he adds,) from the statement of the cases in the note, that the principle deducible from them is, that if A owes B, and B owes C, and it is agreed by these three parties that A shall pay this debt to C, and A is by this agreement discharged from his debt- to B, and B is also discharged from his debt to C, then there is an obligation created from A to C, and C may bring an action against A in his own name.”
On page 220, he adds : “ An order addressed by a creditor to his debtor, directing him to pay the debt to some one to whom the creditor is indebted, operates as a substitution of the new debt for the old one where it is presented to the debtor, and assented to by him, and not befpre, and also pro*438vided, this third party gives up his original claim against the first creditor, and not otherwise;” and in a note on the next page, it is said: “ And the creditor must also consent to take the new debtor as his sole security, and to extinguish his claim against his former debtor.”
The novation recognized by the common law, therefore, requires when A owes B, and B owes C, and it is agreed that A shall pay C, that both the debt from A to B, and the debt from B to C be extinguished, and that C take A as his debtor. When this is done the extinguishment of the debt from B to C'is the consideration of the new promise made by A to C. But if there is, no such extinguishment, there is no new consideration for the promise made by A to C, and it rests alone on the original consideration which moved from B to A.
As the common law rule prevails in Georgia we must construe section 2682 of the Code with reference to that rule. Adopting that rule of construction, I think it quite clear that there was no new consideration for the promise of Dever to pay Tumlin, unless it was “ expressly agreed ” by and between .the three parties, that the debt which Freeman owed Tumlin should be extinguished. The extinguishment of that debt would have been a new consideration for Dever’s promise to Tumlin. If the debt were not extinguished, Tumlin might have an action against Dever upon the promise which Dever made him at Freeman’s request, but that promise would still rest upon the consideration which moved from Freeman to Dever. In other words, upon the slaves. There bqing in that case, a valid consideration for the promise at the time it. was made, it matters not from whom it moved. Tumlm, as the promisee, might maintain his.action “ though a stranger to the considerationCode, section 2705. And as jurisdiction has since been denied to the Courts to enforce a contract, founded as this was, Tumlin’s right of action in the Courts of this State ceased, and neither he nor his assignees have a right to enforce the collection of the claim, resting, as it does, upon slaves as its only consideration.
For these reasons my mind is entirely satisfied that Dever *439has been denied the right of having his .ease fairly submitted to the jury, that he had evidence before the jury upon which they might have found.in his favor, which, under the charge of the Court, they were not permitted to consider,' and that the verdictljought to be set aside and that a new trial ought to be granted.